Emergency Protective Measures

October 29, 2013

Kristi Turman
Director
South Dakota Office of Emergency Management
118 West Capitol Avenue
Pierre, South Dakota 57501

Re:  Second Appeal– South Dakota Department of Transportation, PA ID 000-UTOUP-00, Emergency Protective Measures, FEMA-1984-DR-SD, Project Worksheet (PW) 2404

Dear Ms. Turman:

This letter is in response to a letter from your office dated November 29, 2012, which transmitted the referenced second appeal on behalf of South Dakota Department of Transportation (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny funding for emergency protective measures.  The Applicant is requesting a total of $135,548 of additional funding in the second appeal.

Background

Heavy winter snowfall in late 2010 through early 2011, in conjunction with warm temperatures in March 2011, resulted in significant run-off and severe flooding that caused extensive damage throughout 40 counties in South Dakota.  The Applicant provided force account labor, equipment, and materials for emergency protective measures to reduce immediate threats to life, property, public health and safety.  FEMA prepared PW 2404 for $183,456 for the costs associated with the emergency protective measures performed by the Applicant.  During project review, FEMA determined that $9,167 was eligible for emergency protective measures, while $174,289 was ineligible as it was for work covered by Federal Highway Administration (FHWA).         

First Appeal

The Applicant submitted a first appeal on March 30, 2012, requesting reimbursement of $122,299 for emergency protective measures.  The Applicant asserted that the emergency protective measures performed were in accordance with FEMA policy, were not associated with a duplication of benefits, and were eligible for Public Assistance funding.  Further, the Applicant stated that it performed a review of costs claimed in the original PW 2404 and deducted all costs identified for the purposes of facilitating highway operations on federal-aid roads ($51,989) from its original claim.  The Applicant also noted that the FHWA Emergency Relief (ER) Program was never declared for this event.

On September 6, 2012, the Regional Administrator denied the first appeal stating that the Applicant did not substantiate that the emergency protective measures performed met the criteria for eligibility in accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.223(a) General work eligibility, and 44 CFR §206.225 Emergency work.

Second Appeal

The Applicant submitted a second appeal on November 2, 2012, requesting reimbursement of $135,548 (revised from the first appeal claim of $122,299) for emergency protective measures.  In the second appeal, the Applicant maintains that the emergency protective measures are eligible and the work performed was in accordance with 44 CFR §206.223(a) General work eligibility, and 44 CFR §206.225 Emergency work.  The Applicant provided detailed breakdowns of costs associated with the emergency protective measures, including specific descriptions of items of work, location and costs.  This work included traffic control; provision of sand, dirt, equipment, labor, and supplies for flood-fighting activities; pumping water from behind levees; and protection of critical transportation facilities.

Discussion

Pursuant to 44 CFR §206.223(a) General work eligibility, to be eligible for financial assistance, an item of work must be required as the result of the event, be located within the designated area, and be the legal responsibility of an eligible applicant.  In addition, 44 CFR §206.225 Emergency work, states that emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible for funding.

FEMA requires sufficient documentation to support the eligibility of work and the costs claimed for the work.  The documentation submitted by the Applicant with its second appeal detailing the specific activities that were carried out supports the eligibility of the emergency work performed and the associated costs in accordance with both general and emergency work eligibility criteria.  

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Applicant’s appeal should be granted in full.  By this letter, I am requesting that the Regional Administrator take appropriate action to implement my decision.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206 Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Doug Gore
      Acting Regional Administrator
      FEMA Region VIII