Road and Embankment Damages

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Citation: Appeal Brief; Second Appeal; Westmont College; FEMA-1046-DR-CA; PA #083-90001

Cross-Reference: DSR 19668; Permanent Restoration; Road Repairs; Category C

Summary: Following the winter storms of 1995 in Santa Barbara County, California, Westmont College (College) repaired a roadway embankment, pavement and utilities. The repair work was completed at the time of the damage survey report (DSR) inspection, at a cost of $160,409. These repairs were substantial improvements to the damaged facility beyond its pre-disaster condition. FEMA prepared DSR 19668 for $33,144 to restore the facility to the pre-disaster condition based on photographs and information provided by the College. The State forwarded the first appeal on June 17, 1996, requesting full funding of the actual costs of $160,409. The basis of this appeal was that the costs to repair the facility were higher because additional work was required to meet current codes and standards. However, the State recognized that the project included some improvements. On October 1, 1996, the Regional Director denied the first appeal. The denial was based on the fact that the standards followed apply to new construction and not the repair of existing facilities; therefore, the improvements made by the College were not eligible for FEMA funding. On March 17, 1997, the State forwarded the second appeal requesting the DSR be increased to $140,000 to cover the costs of work required to obtain permits from Santa Barbara County, the California Department of Fish and Game (CDFG), the Clean Water Act and the Americans with Disabilities Act. A Streambed Alteration Agreement with the CDFG, which required certain conditions be met, was submitted in support of the appeal. The basis of this appeal was that the use of FEMA unit pricing understates the true costs because it does not take into account increased costs associated with imposed required work beyond the pre-disaster condition by the various governmental agencies. The Regional Director acknowledged that costs associated with stream diversion and permits were not accounted for in the original DSR and may be eligible for FEMA funding. However, documentation to identify these costs was not provided. She also indicated that the improvements were undertaken by the subgrantee without compliance with National Environmental Policy Act requirements. However, further checking with the Region IX Environmental Officer revealed that there were no environmental concerns.

Issue: Were the repairs beyond the pre-disaster condition required by regulatory agency standards and, therefore, eligible for FEMA funding?

Findings: No. The documentation provided identifies work proposed and completed, but does not establish the regulatory standards for repairs to an existing facility or a cost breakdown of repairs. The standards apply to new construction, not repair to damaged facilities.

Rationale: 44 CFR 206.226 (b)(1) requires that standards which change the pre-disaster construction of the facility must apply to the type of repair required, standards may be different for repair work versus new construction. No documentation was submitted to establish the standards, which mandated the additional repair work.