Deobligation of Funds

Appeal Brief

Citation:

FEMA-1379-DR-TX; Treasure Island Municipal Utility District, PW 1012
 

Cross-reference:

Deobligation, Environmental Compliance, Change of Scope
 

Summary:

As a result of Tropical Storm Allison (FEMA-1379-DR-TX, June 2001), the Treasure Island Municipal Utility District (Applicant) requested funding for repair to a sand-filled geo-tube revetment protecting Treasure Island Beach, located in Brazoria County, Texas. The Federal Emergency Management Agency (FEMA) prepared Project Worksheet (PW) 1012 to fund costs of the repair and replacement of washed-out sand. The funding approved in PW 1012 was contingent upon the submission of the scope of work to the Texas General Land Office (GLO) for a consistency finding and compliance with any Texas Coastal Coordination Council (CCC) requirements. The Applicant proceeded with the repairs to the geo-tubes before obtaining the necessary consistency finding. Prior to completing the permanent repairs on the geo-tubes, the revetment suffered additional damage. In an effort to prevent further erosion, the Applicant placed concrete rubble on top of the collapsed geo-tube and backfilled the revetment with sand between the rubble and the nearby road. FEMA deobligated PW 1012 on the basis that the Applicant had undertaken work that was not part of the eligible scope of work and, furthermore, had begun the work prior to obtaining the required consistency finding. The Applicant submitted a first appeal asserting that because it chose not to repair the geo-tubes, there was no requirement to obtain a consistency finding. The Acting Regional Director denied the appeal, stating that the Applicant did not comply with the requirement to submit the project to the GLO for approval. In its Second Appeal, the Applicant continues to assert that no consistency finding was required. The Applicant requests reimbursement for the work associated with replacing the washed-out sand, in the amount of $18,021.26.
 

Issues:

(1) Did the Applicant comply with the requirement to submit the project to the GLO for a consistency finding “prior to any construction activity”?
(2) Did the Applicant perform the approved scope of work as documented in PW 1012?
 

Findings:

(1) No, the Applicant began the repair prior to submitting the project to the GLO for review.
(2) No, the Applicant changed the scope of work and did not submit the changes to FEMA for review.
 

Rationale:

44 CFR §206.204 (e)

Appeal Letter

Appeal Analysis

BACKGROUND

As a result of Tropical Storm Allison on June 9, 2001 (FEMA-1379-DR-TX), high tides and damaging wave action eroded the sand and vegetative cover from a three-section, 1,600-linear foot sand-filled geo-tube revetment protecting Treasure Island Beach. The high waves and wind-driven debris punctured 48 holes in the three geo-tube sections, and damaged 150 linear feet of UV cover and 80 linear feet of scour apron. Wave and wind action also damaged 1,600 linear feet of protective fence and the vegetative irrigation system, and washed away approximately 1,000 cubic yards of sand. The Treasure Island Municipal Utility District (Applicant) requested assistance from the Federal Emergency Management Agency (FEMA) for restoration of the revetment.

FEMA prepared Project Worksheet (PW) 1012 on September 12, 2001, in the amount of $26,725 to fund costs for repair of the damage and to replace the sand. The funding approved in PW 1012 was contingent upon the submission of the scope of work to the Texas General Land Office (GLO) for a consistency finding and compliance with any Texas Coastal Coordination Council (CCC) requirements. The Applicant, however, proceeded with the repairs to the geo-tubes prior to obtaining the necessary consistency finding.

In November 2001, prior to the Applicant completing the permanent repairs on the geo-tubes, high tides and heavy wave action from Hurricane Michelle further damaged the center geo-tube causing a complete loss of sand from the 300-foot center section. In lieu of reconstructing the geo-tubes, the Applicant placed concrete rubble on top of the collapsed geo-tube and back-filled the revetment with sand between the rubble and the nearby road.

On July 13, 2004, FEMA deobligated PW 1012, on the basis that the Applicant had undertaken work that was not part of the eligible scope of work and, furthermore, had begun the work prior to obtaining the required consistency finding. The Applicant was notified of the deobligation by the Texas Governor’s Division of Emergency Management (State) in a letter dated July 26, 2004.

First Appeal

On September 20, 2004, the Applicant submitted a first appeal letter, which was forwarded by the State to the Region on December 30, 2004. The Applicant asserted that it was prevented from completing the eligible scope of work due to the high tides and coastal flooding caused by Hurricane Michele. The Applicant further asserted that because it chose not to repair the geo-tubes but rather replaced them with concrete rubble, there was no requirement to obtain a consistency finding.
On January 19, 2005, the Regional Director denied the Applicant’s first appeal of the de-obligation of PW 1012 on the basis that it had not obtained the required consistency finding prior to undertaking the work. The State informed the Applicant of the FEMA decision in a letter dated February 11, 2005.

Second Appeal

The Applicant submitted a second appeal of the FEMA determination to the State on April 9, 2005, transmitted by the State in a letter dated June 8, 2005. The Applicant continues to assert that since it had decided to replace the geo-tubes with concrete rubble, no consistency finding was required. The Applicant requests that FEMA reimburse it for the work associated with replacing the washed-out sand, in the amount of $18,021.26.

DISCUSSION

In its appeal, the Applicant states that prior to starting the FEMA-approved scope of work, it submitted the proper paperwork and was granted approval and consistency from the Brazoria County Floodplain administrator who then forwarded it to the GLO. Further, the Applicant does not believe there is a consistency issue regarding the geo-tubes, because the geo-tubes are no longer in existence.

Although the geo-tubes are no longer in existence, the funding approved by FEMA in PW 1012 was contingent upon submitting the project to the GLO for a consistency finding “prior to any construction activity.” While the Applicant did receive approval from the Brazoria County Floodplain administrator, this does not meet the requirement of submitting the project to the GLO for a consistency finding prior to commencing the work. The Applicant did not comply with this requirement.

In addition, the Applicant changed its scope of repair without FEMA involvement. As stated in the FEMA Public Assistance Guide, page 115-116, the Applicant must submit a request to the State when the need for a change in scope is discovered. “The request should contain justification for the eligibility of the additional work or costs.” The Applicant chose to make a fundamental change in the approved scope of work by replacing the geo-tubes with concrete rubble. It did so without providing FEMA the opportunity to review the new scope of work for Public Assistance program eligibility or for environmental compliance.
It is noted that the Applicant is requesting funding for only the costs associated with the placement of sand between the newly placed concrete rubble (the revised repair method) and the road, which was included in the original eligible scope of work, and is not requesting funding for the costs associated with the placement of the concrete rubble. However, there is no distinction between this portion of the eligible work and that of the geo-tube replacement that would suggest that the contingency finding would not have been required. Failure to have adequately complied with this requirement prohibits FEMA from being able to fund this work. Further, as this work was completed together with the "unapproved" portion of the repair effort, it would have been necessary for the Applicant to request approval for the overall project prior to commencing with the work.

CONCLUSION

Based on a review of the information provided in the Applicant’s second appeal, we have concluded that the Applicant did not comply with the requirement to submit the project to the GLO for a consistency finding “prior to any construction activity.” Further, the Applicant performed work outside of the scope of work as approved under PW 1012 without submitting the change to FEMA for review. The Applicant’s appeal is denied.