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Second Appeal Summary
PA ID# 041-00000; Lewis County
DSR ID# 49007, 28451; Butter Creek
Citation: FEMA-1079-DR-WA; Lewis County, Butter Creek, DSRs 49007, 28451
Cross Reference: Improved Project, NEPA Compliance
Summary: As a result of the late 1995 winter storms, flood waters and flowing rocks damaged various portions of the existing revetment and embankment along approximately 2,100 linear feet (lf) of Butter Creek. FEMA prepared Category D DSR 49007 in the amount of $182,790 to provide permanent restoration of the channel banks using select fill and riprap. During the course of the construction, the subgrantee increased the scope of work to extend the repair effort an additional 5,900 linear feet along undamaged sections of the banks, made slight modifications to the repair method, and excavated 60,000 cy of material from the channel bottom. This additional work was performed without prior approval from FEMA or environmental review. During the final inspection of the project, it was concluded that the performance of the additional work constituted an improved project. Additionally, it was found that the subgrantee did not obtain necessary permits as would be required for permanent work, and that they did not take appropriate precautions to protect the environment. Because the improved project had been performed without FEMA or State approval, and without necessary environmental reviews, the Regional Director concluded that all funding associated with this project was ineligible. DSR 28451 was prepared to deobligate funding from DSR 49007 ($182,790). The subgrantee submitted a first appeal asserting that the completed work was not an improved project, but was performed as emergency work and generally in accordance with the approved scope of work, such that a NEPA review would not have been required. The State did not support the appeal. The Regional Director upheld the original determination of ineligibility and denied the appeal. The second appeal again asserts that the work performed was restoration rather than an improvement, and that the project should be eligible for a Categorical Exclusion as the scope of work restored the site to its pre-disaster design. The State again recommends that the subgrantee's appeal be denied.
- Does the completed scope of work constitute an improved project?
- Is the improved project eligible for funding?
- Yes. The subgrantee significantly expanded the scope of work beyond that identified in the original DSR. These significant modifications are considered improvements to the scope of work of DSR 49007.
- No. The subgrantee's failure to notify the State or FEMA of the proposed improvements prevented FEMA from completing the necessary NEPA requirements for the project. FEMA cannot fund any portion of the work.
Rationale: 44 CFR 206.203(d)(1) Improved Project; 44 CFR Part 10 NEPA Regulations