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Second Appeal Brief
PA ID# 073-99073-00; Ransom County
PW ID# 398; Culvert Replacement
Citation: FEMA-1713-DR-ND, Ransom County, PW 398
Reference: Road repair, General eligibility
Summary: Heavy rains in June 2007 caused flooding in Ransom County (Applicant). While conducting a Preliminary Damage Assessment (PDA) of the county, the PDA team noted that floodwater had overtopped the road, causing erosion to the road’s surface. They also noted internal damage to a rusted corrugated metal pipe (CMP) culvert, as well as erosion to the steep road shoulders at both ends of the 5x40 foot CMP. The team recommended that repair of the CMP should include extending both ends of the CMP by 6 feet. In September 2007, the Applicant repaired the damaged road, removed trees and fences, added fill to flatten the slope of the shoulders and replaced the underlying culvert with a 5x80 foot CMP at a contract cost of $24,953. A project officer visited the repaired site and determined that replacement of the culvert was ineligible as the damage was not a result of the declared event. The State prepared PW 398, for $72.50 for gravel on the road surface and fill for the eroded shoulders. FEMA obligated the PW on February 28, 2008, for $0 because the estimated cost was below the $1,000 regulatory threshold. On May 6, 2008, the Applicant submitted a first appeal claiming that the damage to the culvert was caused by the declared disaster and that the PDA established the eligibility of the work. On June 12, 2008, the State forwarded but did not support the appeal because it was an unapproved improved project. The Regional Administrator (RA) denied the appeal on November 17, 2008, and explained that although there was evidence of damage to the culvert, there was no evidence to support that the damage was caused by the disaster. The RA also clarified that the purpose of the PDA is to quickly assess damage and evaluate the impact of the disaster, not to establish final determinations on specific projects’ work and cost eligibility. On January 29, 2009, the Applicant filed a second appeal claiming that the culvert damage and required scope of work was documented in the PDA, and that the FEMA Project Officer’s Site Inspection documented damage to the culvert. The State supported the second appeal but did not transmit it to FEMA until October 12, 2010. The Applicant submitted no new documentation with the second appeal that demonstrates that the disaster caused the damage to the culvert. Furthermore, the second appeal was not transmitted to FEMA within the regulatory timeframe.
Issue: Was replacement of the culvert required as a result of damage from the declared disaster?
Rationale: Title 44 of the Code of Federal Regulations (44 CFR) §206.223(a)(1), General Work Eligibility; 44 CFR §206.206(c)(2), Appeals, Time limits.