S Road Culvert

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1776-DR-KS
ApplicantRooks County Highway Department
Appeal TypeSecond
PA ID#163-UAK2J-00
PW ID#709
Date Signed2013-12-19T00:00:00

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

                                 

Appeal Letter

December 19, 2013

Major General Lee Tafanelli
Director
Kansas Division of Emergency Management
2800 SW Topeka Blvd.
Topeka, Kansas 66611-1287 

Re:  Second Appeal–Rooks County Highway Department, PA ID 163-UAK2J-00, S Road Culvert, FEMA-1776-DR-KS, Project Worksheet (PW) 709

Dear Maj. Gen. Tafanelli:

This is in response to a letter from your office dated February 11, 2013, which transmitted the referenced second appeal on behalf of Rooks County Highway Department (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) deobligation of $61,961 for road repairs and culvert replacement and denial of its request for additional funding ($51,672) for a project cost overrun.

I have reviewed the information submitted with the appeal and determined that the Applicant completed an improved project by installing a new culvert in addition to repairing the disaster damage.  As an improved project, eligible funding is limited to the initial cost estimate approved in PW 709, which is $61,961.  Therefore, I am partially approving the second appeal.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination. 

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

Enclosure

cc:  Beth Freeman
      Regional Administrator
      FEMA Region VII

Appeal Analysis

Background

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.  The Applicant submitted a mitigation proposal, prepared by its engineering consultant, to replace the culverts with a 96-inch CMP and to install eight 30-foot-long, 24-inch culverts for an estimated cost of $185,620.  FEMA found that the proposal was not cost effective and therefore ineligible for funding.  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 as cost effective hazard mitigation. 

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, which represented a $51,672 project overrun.  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 funding for PW 709.

First Appeal

The Applicant submitted a first appeal on July 2, 2012, requesting reimbursement of its actual costs ($113,633) to repair the road damage and to replace the damaged culvert.  The Applicant claimed the PW project cost estimate was only partially complete and “formulated as an open ended restoration project” and alleged three errors in the formulation of the PW: 1) it did not include the costs of all items that required replacing; 2) it included items that did not exist; and 3) it did not include cost estimating factors, such as “costs that escalate the cost of construction.”  In addition, 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.

On October 18, 2012, 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 Regional Administrator concluded that the work performed constitutes an improved project, which did not receive FEMA approval prior to the start of construction.  In addition, the Applicant’s failure to receive approval prior to the start of work prevented FEMA from reviewing the project for compliance with environmental and historic preservation regulations.  Finally, the Applicant failed to obtain permits required as a condition of the grant.

Second Appeal

The Applicant submitted a second appeal on December 17, 2012, 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 and cites Title 44 of the Code of Federal Regulations (44 CFR) § 206.201(h), Definitions used in this subpart, Pre-disaster design, “…as the size or capacity of the facility as originally designed...”   In addition, the Applicant provides arguments justifying: 1) its decision to deviate from the original scope of work; 2) the use of larger single culvert; 3) installing a second culvert in a different location; and 4) not obtaining permits prior to construction.         

Discussion

Section 406(e) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes FEMA to fund the cost of repair or replacement of a facility based on the design of the facility as it existed immediately before the disaster.  In this case, FEMA approved the replacement of the two damaged 50-foot long, 48-inch CMPs with two 72-inch CMPs as a cost-effective hazard mitigation measure.  The Applicant installed one 80-foot long, 120-inch culvert and a new “overflow” culvert.  In its appeal, the Applicant explains that a 50-foot long culvert would not restore the facility as it existed immediately before the disaster, because the approved scope of work in PW 709 did not include the restoration of the pre-existing, large concrete headwalls.  Further, the Applicant opted for one 120-inch CMP, because it would more efficiently convey heavy flows than the two 72-inch culverts.  Lastly, the Applicant stated that it installed the “overflow” culvert 140 feet east of the damage site to alleviate additional drainage problems in the area. 

According to 44 CFR § 206.203(d)(1), Federal grant assistance, Improved projects, an improved project is one that restores the pre-disaster function of a damaged facility with improvements.  In PW 709, FEMA approved improvements to the facility as cost-effective hazard mitigation.  While FEMA approved the installation of two 50-foot-long, 72-inch CMPs, the scope of work in PW 709 did not include the restoration of the concrete headwalls.  Without headwalls, the Applicant had to install longer CMPs.  Further, the installation of one 120-inch CMP provides essentially the same function as two 72-inch CMPs.  The installation of the larger CMP does not “improve” upon the scope of work approved by FEMA.  However, the Applicant also installed a new “overflow” culvert at a different location that FEMA did not include in the approved scope of work.  In its request for additional funding, the Applicant included the costs associated the installation of the new culvert.  During the review of its second appeal, FEMA requested that the Applicant provide a breakdown of the costs claimed separating out the costs for the installation of the new culvert, and repair of the destroyed culvert.  The Applicant was not able to provide the specific, actual cost for the installation of the new culvert, and the restoration of the pre-existing culvert.

Although the Applicant did not provide FEMA with the opportunity to review the scope of work change for compliance with environmental regulations, the installation of the 120-inch CMP did not impact the footprint beyond what would have been impacted had the Applicant moved forward with the approved scope of work.   The Applicant states that because the project was statutorily excluded from further review under the National Environmental Policy Act it believed that it was not required to obtain certain permits.  After FEMA deobligated PW 709, the Applicant obtained after-the-fact permits from both the U.S. Army Corps of Engineers and the Kansas Division of Water Resources.

With respect to the installation of the 120-inch CMP, the Applicant completed a project slightly different than that approved by FEMA; however, it did not change the pre-disaster footprint, and the larger CMP provides essentially the same function as the approved scope of work.  The project as completed did not impact the environment any differently than the approved scope of work would have, and the Applicant was able to obtain the appropriate environmental-related permits after the fact.  However, the Applicant performed an improved project by installing a new culvert at the site in addition to replacing the damaged culvert.  The FEMA Public Assistance Division requested additional documentation from the Applicant through the Kansas Division of Emergency Management separating the actual cost of the installation of the new culvert from that of the repair of the disaster damage.  The Applicant could only estimate the cost to install the new culvert and could not separate out the actual costs of the ineligible work.  Therefore, in accordance with 44 CFR § 206.203(d)(1), Federal grant assistance, Improved projects, federal funding is limited to the federal share of the approved estimate of eligible costs, $61,961.

Conclusion

The Applicant is requesting FEMA reimbursement of its actual costs for PW 709, which include the costs associated with the installation of a new culvert.  By installing a new culvert in addition to repairing the disaster damage, the Applicant performed an improved project.  Eligible funding is capped at the original cost estimate approved by FEMA, which is $61,961.

 

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