Lizzie Street Storm Drainage System Replacement

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1046-DR
Applicant	City of San Luis Obispo
Appeal Type	Second
PA ID#	079-68154
PW ID#	11312,83562
Date Signed	1997-04-10T04:00:00

Citation: FEMA-1046-DR-CA; City of San Luis Obispo; DSR 11312

Cross-Reference: Storm Drainage System, Emergency Protective Measures, Permanent Restoration, Right-of-Way, Easement, Private Property, Maintained Facility

Summary: Winter storms in March 1995 caused flooding in the City of San Luis Obispo (City) overwhelming a storm drainage system of piped and open flow sections that ran mostly through private property (not within a right-of-way or easement) along Lizzie Street. The system failed in several locations causing damage to both public and private property, as well as blocking the system with debris. The City performed emergency measures during and after the disaster, and then decided to install a new storm drainage system beneath Lizzie Street. Damage survey report (DSR) 11312 was written on August 22, 1995, estimating $177,436 for the construction of 750 feet of new storm sewer beneath the street. The project had been completed at the time of the damage survey. DSR 11312 was ruled ineligible by FEMA Region IX because the damage was to private property, and not eligible for funding. A separate DSR (83562) was prepared for $1,450 to cover eligible repairs to the small portion of the system that was on public property . The City submitted its first appeal arguing that the new storm system was an emergency protective measure, and not permanent work, disagreeing with the FEMA assertion that the damage was primarily to private property. The City asserted, without documentation, that the drainage system components - both culvert and open channel components -are interrelated with numerous maintained public facilities constituting a single municipal system. The first appeal was denied by Region IX, stating that the work involved repair or replacement of damaged private property that was not eligible for permanent restoration and the installation of a new, permanent system could not be considered an emergency protective measure. The City submitted a second appeal asserting that the replacement of the storm drainage system with the storm sewer beneath Lizzie Street was a swift response to an immediate threat and thus should be eligible for FEMA funding as an emergency measure.

Issues:

1. Was the existing storm drainage system a public facility and eligible for permanent restoration?
2. Is replacement of a non-engineered collection of storm drainage elements with a below-street, piped collector system eligible as an emergency protective measure?

Findings:

1. No. The storm drainage system consisted of a mix of storm flow elements primarily through private property. No documentation was submitted to establish it as a public facility and it did not lie within a public easement or right-of-way.
2. No. The relocation and construction of a new storm sewer system to replace the old one would not be eligible, because there was no damage to an eligible facility. However, eligible funds for debris removal would have been eligible as a Category A measure.

Rationale: According to 44 CFR 206.225(a)(3), only measures taken in response to an immediate threat to life or improved property are eligible for Federal assistance as emergency protective measures. Installation of a new system does not constitute an emergency measure. In addition, 44CFR206.223(a)(3) states that an item of work must be the legal responsibility of an eligible applicant in order to be eligible for Public Assistance.

Appeal Letter

Appeal Analysis

BACKGROUND
March 1995 winter storms caused flooding in the City of San Luis Obispo (City) along Lizzie Street, resulting in damage to public and private property, as storm water moved through an assortment of culvert and open channel flow sections on private property. The assortment of piped and open channel sections on private property were not within a public easement or right-of-way. Damage to property occurred due to the fact that the drainage system, which was not an engineered storm system, became blocked and could not handle the flood flows. Damage included structural channel and culvert damage, eroded private property and driveways, pipes and channels filled with deposited debris, a section of rock channel lining washed away, and undermining damage to a sidewalk and a section of chain link fence which was washed out. The City performed some emergency repairs following the disaster, and conducted an inspection of the system. The City elected to construct a new 750-foot storm drainage system beneath Lizzie Street to replace the old system of conveying storm flow through and beneath private property. Damage survey report (DSR) 11312 was written on August 22, 1995, estimating $177,436 to construct the new storm sewer within the street right of way. The project had already been completed at the time of the damage survey. During eligibility review, DSR 11312 was ruled ineligible by FEMA Region IX, because the damage was considered to be to private property, and therefore not eligible for the Public Assistance Program.

First Appeal
The City appealed the eligibility determination as well as the placement of the project within Category D - permanent repairs, stating that it should be category B - emergency repairs. The City disagreed with FEMA's determination that the damage was mostly to private property and thus not eligible for permanent repairs. The drainage system is interrelated with numerous public maintained facilities and open drainage that makeup the overall drainage system in the area, according to the City (without substantive documentation). The City further attested that it acted swiftly to take emergency protective and replacement measures, and it concurred with the original damage description and finding of the FEMA Engineer. The City asserted that the storm sewer system was put under the streets to protect improved property and should be eligible.

In his February 14, 1997 response to the first appeal, the Regional Director stated that the proposed scope of work was found to involve repair of private property and, therefore, is not eligible under the Public Assistance program. According to FEMA Regulations, only emergency protective measures taken to eliminate or lessen immediate threats to lives, public health and safety, or to improved public and private property from significant additional damage may be eligible for Federal assistance and are designated as "Category B" work. Eligible emergency protective measures would be temporary repairs or channel diversions accomplished during the disaster flooding. Construction of a completely new permanent facility, in a different location, does not constitute emergency protective work. Review of the case by the Region resulted in discovery of damage to a portion of public sidewalk and fencing, which were found to be eligible for FEMA funding. DSR 83562 was prepared for $1,450 to cover costs for repair of these eligible items.

Second Appeal
The City submitted a second appeal of DSR 11312 to FEMA headquarters on July 10, 1997 stating that the replacement of the drainage system was a swift response to an immediate threat and should be eligible for FEMA funding. The City states that it has complied with all requirements of the Robert T. Stafford Act, and conducted emergency measures to save lives, and protect safety and property in replacing and relocating the storm drainage system. The City asks FEMA to acknowledge its error and determine the costs eligible.

DISCUSSION
The storm drainage system in question was made up of both piped and open channel sections that collected storm water from public streets and private property, however, it was located on private property, and not within a City easement or right-of-way. The heavy storm flow left major rock and debris deposits and damaged the system to an extent to which the City determined that clearing and repairing the old system was not cost effective. The City decided to replace the existing storm system with a new storm drainage system, piped beneath the City streets. The City is asserting that the new storm system represents an emergency protective measure in preventing the immediate threat of additional damage to property.

Because the "drainage system" was on private property, it was not a public facility owned by an eligible applicant and thus not eligible for permanent restoration. Therefore, the only eligible option for the City was to take cost effective emergency measures to alleviate any immediate threat to improved property. This they did by diverting the flood waters to the street. Other emergency measures could have been debris removal from the existing drain system, but this work was not performed.

Instead, the City elected to construct a storm drain in the public right-of-way as a permanent solution to the problem. Evidence of the permanent nature of the storm sewer relocation can be found in the March 29, 1995, letter from the David Castanon of the United States Army Corps of Engineers (USACE) to the City of San Luis Obispo Director of Public Works. The letter was in response to the City's application to the USACE to realign a tributary to San Luis Obispo Creek. In his letter, Mr. Castanon states that,"As an emergency protective measure, the City established a channel bypass consisting of a sandbag dam above the headwall and pipe to direct the water into the street. As a long-term solution, you have proposed the following:

1. Replacing the temporary channel bypass with a 8' x 12' x 15" debris catcher,
2. Replacing the damaged headwall with a new 6' x 16' x 15" concrete headwall,
3. Realigning 750 feet of the existing, storm drain with a new 800-foot-long 42-inch reinforced concrete pipe under Lizzie Street, (emphasis added)."

CONCLUSION
The construction of the new storm sewer system cannot be considered emergency work, and is not eligible for funding as permanent restoration, because the facility in question was not a maintained facility belonging to the City of San Luis Obispo. Therefore, the appeal is denied.