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Second Appeal Brief
PA ID# 163-UAK2J-00; Rooks County Highway Department
PW ID# 709; S Road Culvert
Citation: FEMA-1776-DR-KS, Rooks County Highway Department, Culvert Replacement, Project Worksheet (PW) 709
Cross-Reference: Improved Project, Environmental Compliance
Summary: Heavy rainfall between May and June 2008 resulted in severe flooding, causing damage to a section of S Road in Rooks County. The damage included a culvert washout involving two 50-foot-long, 48-inch corrugated metal pipes (CMP). The Rooks County Highway Department (Applicant) requested FEMA funding for the repair of the road and the replacement of the culvert. FEMA prepared PW 709 for $61,961 for the estimated cost to repair the road and replace the two 48-inch CMPs with two 72-inch CMPs. During the review of the Applicant’s request for project closeout, FEMA found that the Applicant installed one 80-foot-long, 120-inch CMP instead of the two 72-inch CMPs approved in PW 709. In addition, the Applicant installed a new 40-foot-long, 48-inch CMP overflow culvert near the damage site. With its request, the Applicant claimed actual repair costs of $113,633. FEMA determined that the work completed by the Applicant exceeded the approved scope of work in PW 709. By exceeding the scope of work, the Applicant completed an improved project without requesting approval and allowing FEMA the opportunity to review the project for eligibility and compliance with environmental regulations. Therefore, FEMA denied funding for the project and de-obligated PW 709. The Applicant submitted a first appeal requesting reimbursement of its actual costs ($113,633) to repair the road damage and to replace the damaged culvert. The Applicant disagreed with FEMA’s determination that the project is an improved project. The Applicant stated that it designed the culvert based on a “reasonable functional replacement” in accordance with codes and standards and did not change the original footprint. The FEMA Regional Administrator denied the first appeal, stating that the work completed by the Applicant exceeded the previously approved scope of work and was not eligible as an upgrade based on codes and standards. The Applicant submitted a second appeal, reiterating that the work performed was not an improved project. The Applicant states that its “project scale of the reconstruction” was based upon the original scope of work.
Issue: Did the Applicant exceed the approved scope of work?
Finding: Yes. The installation of the one larger culvert is essentially the same as the approved scope of work; however, by installing the second culvert, the Applicant completed an improved project.
Rationale: Stafford Act §406(e), Repair, Restoration, and Replacement of Damaged Facilities; 44 CFR §206.203(d)(1), Federal grant assistance, Improved projects