Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 045-78200-00; City of Waveland
PW ID# 4916; Roadside Drainage Ditch Repair
May 15, 2012
State of Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, Mississippi 39208-5644
Re: Second Appeal-City of Waveland, PA ID 045-78200-00, Roadside Drainage Ditch Repair, FEMA-1604-DR-MS, Project Worksheet (PW) 4916
Dear Mr. Latham:
This letter is in response to a letter from your office dated September 17, 2010, which transmitted the referenced second appeal on behalf of City of Waveland (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $1,492,985 for roadside ditch repair.
As a result of Hurricane Katrina, the Applicant’s drainage ditches, sanitary sewer system, and water distribution system south of the CSX railroad tracks were damaged. On February 1, 2006, FEMA prepared PW 4222 in the total amount of $1,039,080, for the reshaping and regrading of 156,130 linear feet (LF) of damaged roadside ditches that were restricting surface drainage. This work was completed in June 2006.
FEMA prepared PW 4916 on February 28, 2006, for the replacement of the sewer collection system in the amount of $20,688,566. In August of 2007, the Applicant’s sewer replacement contractor noted that the lack of drainage along the Applicant’s roadways was a significant obstacle to completing the work on PW 4916, and would be for PW 5088 (water distribution system replacement), and PW 10475 (road repair) south of the CSX railroad. The Applicant agreed to two change orders for roadside ditch grading, shaping, and erosion control totaling $1,492,985. At final inspection, FEMA denied the costs for the ditch repair and determined that the additional ditch work was included in the contract unit prices for the replacement of the sewer collection system.
In its first appeal dated January 8, 2010, the Applicant argued that the damage to the roadside drainage ditches was a direct result of the performance of eligible debris removal work. The Applicant asserted that permanent repairs to facilities damaged in the performance of eligible work are eligible for Public Assistance funding. FEMA denied the first appeal on May 20, 2010, because the contract stated that charges for restoring ditches and culverts to their pre-construction condition were “incidental and the cost shall be included as part of the appropriate lump sum or unit price stated in the bid.” Further, FEMA determined that permanent ditch restoration (reshaping and regrading) for the area in question had already been reimbursed as a part of PW 4222.
The Applicant submitted a second appeal on July 28, 2010, and reiterated its position from the first appeal. The Applicant contends that the language contained in the contract applies only to the restoration of culverts and ditches to their pre-construction condition. It does not apply to repairs necessary due to disaster-related debris removal operations and reconstruction activities.
The Applicant met with the Acting Director of FEMA’s Public Assistance Division on July 11, 2011, in Washington, DC to present additional information in support of its appeal, including a DVD from its contractor showing the pre-construction condition of the roadside drainage ditches.
The Applicant’s sewer replacement contract did not include the grading, shaping, and erosion protection of the roadside ditches in the scope of work. The contract states, “[A]fter backfilling of excavations, (the contractor will) restore all drainage ditches destroyed, damaged, or otherwise modified during construction to a condition equivalent to the condition of the ditch before construction.” This provision does not address the pre-construction condition of the roadside ditches. Therefore, it was appropriate for the Applicant to issue change orders for any work to repair disaster-related damages or additional work necessary to complete the sewer replacement project.
The repair work captured in PW 4222 was conducted to address immediate flooding concerns and was completed by June 2006. However, debris removal operations continued into mid-2007. The DVD footage provided by the Applicant shows evidence of heavy equipment performing debris operations on the roadway near the subject drainage ditches. The effect of debris in the ditches was documented in correspondence from the Applicant’s engineer, including an August 15, 2007, letter which states, “[T]he roadside ditches have been and will continue to be a problem not only for the water, sewer and gas system installation projects but also the future roadway project…Storm related debris in ditches to this day continues to be a problem. It hasn’t rained in nearly two weeks, and we are still contending with water in ditches because no positive drainage exists.”
The information submitted by the Applicant demonstrates that the roadside ditch repair was necessary to complete the sewer replacement project and disaster-related debris operations contributed to the damages to the ditches. Therefore, the work to repair the roadside ditches is eligible for reimbursement.
I have reviewed all of the information submitted with the appeal and determined that the Applicant’s appeal should be granted for $1,492,985. By this letter, I am requesting that the Regional Administrator take appropriate action to implement this decision.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Deputy Associate Administrator
Office of Response and Recovery
cc: Major P. May
FEMA Region IV