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Second Appeal Brief
PA ID# 053-46584-00; City of Marble Falls
PW ID# 3844 and 3935; Scope of Work and Cost Overrun
Citation: FEMA-1709-DR-TX, City of Marble Falls, PWs 3844 and 3935Cross-reference:
Surveys for Damage, Net Small Project Overrun (NSPO), Change of Scope of Work, Immediate ThreatSummary:
Severe storms and flooding that occurred during the period of June 16, 2007, through August 3, 2007, caused debris flows into the City of Marble Falls public right-of-ways, bridges and culverts, and its waterways. FEMA prepared PW 3844 to remove sediment and vegetative debris from the Backbone Creek and Whitman Branch Creek waterways in order to reduce or eliminate the threat of flooding to the community. FEMA placed PW 3844 on hold until the Applicant could demonstrate that the disaster-related debris created an immediate threat to the community. The Applicant requested funding for PW 3844 to complete a study to quantify the disasters impact on the waterways. FEMA advised the Applicant that FEMA does not fund surveys to determine the possibility of damage to a facility, but those costs may be eligible if damages are discovered. FEMA prepared PW 3935 to cover 897 CY of scattered debris not removed and disposed of from public property and right-of-ways under previous PWs. The small project was obligated for $3,588.
The Applicant submitted its first appeal on February 5, 2008, for PW 3844 and PW 3935. For PW 3844, the Applicant requested funding of an unspecified amount to conduct an engineering damage study/survey. For PW 3935, the Applicant appealed for additional funding for debris removal and for bank stabilization. It should be noted that PW 3935 does not include bank stabilization in the Scope of Work (SOW). FEMA denied the appeal concluding that damage surveys are not eligible work under a PW and that small project appeals are not reviewed on a project-by-project basis, but at the completion of all the Applicants small projects. A second appeal was submitted June 20, 2008, requesting a change to PW 3935 SOW and to increase project costs in the amount of $369,441. The Applicant suggests that PW 3844 be closed upon approval of the SOW change to PW 3935. Support documents include an engineering study of the sediment and debris that was deposited in Backbone Creek and Whitman Branch Creek waterways. Issues:
1. Does FEMA provide funds for damage surveys?
2. Did the Applicant demonstrate that the disaster-related debris created an ccimmediate threat to the community?
3. Did the Applicant follow NSPO appeal procedures?Findings:
1. No. FEMA does not fund surveys/analyses to determine the possibility of vndamage to a facility.
2. No. The Applicant did not demonstrate that an immediate threat existed.
2. No. An Applicant may submit an appeal for additional funding/cost overrun d within 60 days following the completion of all its small projects.Rationale:
FEMA 322, Surveys for Damage
, pages 55-56; 44 CFR
§206.204(e)(2), Project performance, Cost Overruns
; 44 CFR
§206.221(c), Definitions, Immediate threat