Scope of Work

Appeal Brief

Summary Paragraph

During the declared flooding event, rising floodwaters and high river flow caused extensive erosion to the Applicant’s engineered bank stabilization system.  FEMA conducted a site visit while the water flow was still high, and observed disaster-related damage at Site B of the bank stabilization system.  After the water flow dropped, the Applicant discovered additional damage at Sites B and C of the bank stabilization system, and proceeded with the repairs.  The Applicant requested a change in the scope of work to include additional funding for the repair of the newly discovered damage at Sites B and C, as well as hazard mitigation funding.  FEMA denied the requests and obligated PW 2373 Version 0 for $459,744.00 to repair the original damage inspected at Site B.  In its first appeal, the Applicant claimed that additional damage at Sites B and C were under high river flows and not visible during the FEMA site visit.  The Applicant also argued that hazard mitigation was necessary to prevent future embankment erosion. Upon review, the Regional Administrator partially approved the first appeal and obligated an additional $393,940.35 for the additional damage at Site B.  In its second appeal, the Applicant requests $402,641.52 associated with Site C, arguing additional notification for the new damage at Site C should not have been required because the entire bank stabilization system is a single facility. 

Authorities and Second Appeals

• 44 C.F.R. § 206.201(c).
• 44 C.F.R. § 206.201(i).
• 44 C.F.R. § 206.202(d)(ii).
• 44 C.F.R. § 206.204(e).
• PA Guide, at 96.
• PA Guide, at 140.

Headnotes

• 44 C.F.R. § 206.201(c) defines facility as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. 

• The bank stabilization system at Mulberry Point is a single continuous system; therefore, it is a single facility with multiple location reference points. 

• 44 C.F.R. § 206.202(d)(ii) requires an applicant to identify and report all damage within 60 days following its first substantive meeting with FEMA.  Public Assistance Guide further clarifies that this requirement applies to any newly discovered damaged facilities.  44 C.F.R. § 206.204(e) requires an applicant to evaluate and report cost overruns for reasons including a change in the scope of eligible work.
  • As a single facility already reported as damaged, the 60-day timeframe does not apply to any newly discovered damage. 
  • However, the Applicant is still required to report new damage within a timely manner pursuant to 44 C.F.R. § 206.204(e).

Appeal Letter

Appeal Analysis

Background

An above-normal level of snow fall in South Dakota during the winter of 2010–2011 resulted in significant water run-off and flooding as the temperatures warmed up in March 2011.  A major disaster for flooding was declared on May 13, 2011 with the incident period of March 11, 2011 to July 22, 2011.  Along Mulberry Point on the Missouri River, rising floodwaters with high velocity river flow redirected the main river channel and caused extensive erosion to portions of the engineered bank stabilization system, owned and operated by Lewis and Clark Rural Water System (Applicant).[1]  Flood damage included partial to complete washout of portions of the bank stabilization system comprised of various engineered components—a combination of a stone toe base, bank stabilization material, locked logs, and planted vegetation.  Completed in 2008, the bank stabilization system was designed to stabilize and strengthen the embankment, which in turn protects the Applicant’s water system that provides potable water to over 300,000 people in three states along the Missouri River.     

The Applicant provided documentation to show that the normal high water level (NHW) at this site was set as being equal to the Construction Reference Plane (CRP) for the bank stabilization system site design, which was determined by the U.S. Army Corp of Engineers (USACE) to be 29,000 cubic feet per second (cfs). The ordinary high water level (OHW) was set two feet above the NHW, corresponding to the start of willow plantings on the bank stabilization system.  The 100-year flood level corresponded to the top of the bank stabilization system, equivalent to a river flow of about 100,000 cfs.  During the flood event of 2011, the maximum river flow exceeded 160,000 cfs.

The upper (north) end of the embankment failure was noted only after the river flow had dropped to approximately 90,000 cfs around September 2011.  The river flow then dropped to 40,000 cfs around the beginning of October 2011 and maintained that level until mid-December 2011.

On October 4, 2011,[2] FEMA conducted a site visit to observe the area of the bank stabilization system failure and identified extensive embankment damage at a location identified by the Applicant as Site B at Mulberry Point[3].  Due to the above-average water flows covering the entire shoreline, the full extent of the damage to the embankment was not visible at this time.  FEMA prepared Project Worksheet (PW) 2373 with an estimated cost of $459,744.00 to repair the visible damage.  The PW scope of work (SOW) included in-kind replacement of the engineered embankment material eroded by floodwaters and high velocity river flow along 877 linear feet (LF) of the bank stabilization system at Site B.  The recent completion of the construction of the bank stabilization system (less than three years prior to the flooding disaster) allowed for the use of the original engineering plans as a baseline for takeoff measurements for estimating lost quantities of material necessary for the repair.

After the river flows decreased and the water level receded closer to the NHW, the Applicant conducted a full evaluation of all flood damage to the bank stabilization system on December 27, 2011.  During this evaluation, the Applicant identified additional damage at Site B, increasing the total length of the damaged section from 877 feet to 1,500 feet.  The Applicant also discovered another damaged section about 410 feet in length located approximately 200 feet downstream at Site C; this damaged section was under water at the time of the previous FEMA site visit due to it being further downstream at a lower elevation.

In early 2012, the Applicant made several inquiries regarding the status of its PW.  During the spring of 2012, the Applicant proceeded with the repair of all damages at the bank stabilization system in consideration of past environmental restrictions that limited construction activity to winter and early spring, as well as relatively low river flows which aided in the construction.[4]

The Applicant reported the newly identified damage to the South Dakota Department of Public Safety (Grantee) on June 11, 2012; the Grantee notified FEMA immediately.  On June 20, 2012, FEMA conducted a second site visit to view the additional damage.  On July 26, 2012, the Applicant submitted two requests for additional funding for the work required to repair the bank stabilization system: 1) a change in SOW to include additional embankment material needed to repair the damage previously unseen under the high water level ($393,940.45) and hazard mitigation completed ($264,544.43) at Site B; and 2) a new PW to address the newly identified damage ($402,641.52) at Site C.

On August 10, 2012, FEMA obligated PW 2373 Version 0 for $459,744.00 for the original SOW.  The PW noted the additional costs associated with newly discovered damage and hazard mitigation requested by the Applicant were not included.  Regarding the Applicant’s funding request for the repair of the newly identified damaged section, FEMA indicated the PW repair estimate based on the bank stabilization system’s original design specification did not deduct for any undamaged useable material, which should provide the Applicant with a surplus of materials.  On August 20, 2012, FEMA issued responses to the Applicant’s July 26, 2012 requests, denying both requests.  Hazard mitigation funding for Site B was denied because the Applicant completed work beyond the pre-disaster configuration without FEMA approval prior to construction.  Funding for Site C was denied because the Applicant did not identify nor report the new damage within the 60-day period following the Kickoff Meeting, which FEMA considered to have taken place on the same date as the site visit on the October 4, 2011.

First Appeal

On October 17, 2012, the Applicant sent its first appeal to the Grantee, requesting that FEMA obligate an additional $1,061.126.40.  The Grantee transmitted the Applicant’s first appeal to FEMA Region VIII, indicating its partial support of the appeal, on December 7, 2012. 

First, the Applicant claimed that the additional quantities of engineered embankment material were necessary to fully repair the flood damage at Site B.  The Applicant reasoned that FEMA’s initial estimate was based on only a part of the entire damaged section visible above the high river level at the time of the site inspection. 

Second, the Applicant argued that hazard mitigation was necessary and designed in cooperation with a USACE river bank restoration expert to prevent further embankment erosion and future damage to the well fields.  The Grantee did not support this portion of the appeal.

Finally, the Applicant asserted that the damage at Site C could not be assessed during FEMA’s initial site visit as it was underwater below the continued high flows in the Missouri River.  The Applicant further contended that it was not aware of the requirement to report additional damage within 60 days of the Kickoff Meeting, because this was not explained by FEMA during the October 4, 2011 site inspection that also served as the Kickoff Meeting.  The Applicant indicated that it would have reported the newly identified damage as soon as it could after the discovery in late December 2011, had it understood the damage reporting requirement.

The FEMA Region VIII Regional Administrator (RA) partially granted the first appeal on May 13, 2013.  The RA determined that the Applicant adequately demonstrated the additional embankment material required at Site B was needed to repair the damage that was a direct result of the disaster, and approved an additional $393,940.35.  However, the RA denied funding for the damage at Site C due to the Applicant’s failure to report the additional damage in a timely manner.  The RA also denied funding for Section 406 mitigation because the Applicant consulted with neither the Grantee nor FEMA prior to completing the mitigation measures for the bank stabilization system beyond the pre-disaster footprint.  On June 3, 2013, FEMA approved PW2373 Version 1 for an additional $393,940.35.

Second Appeal

On August 2, 2013, the Grantee transmitted the Applicant’s second appeal letter dated July 11, 2013, indicating its support of the appeal.  In its second appeal, the Applicant requests reconsideration of the unreported cost of $402,641.52 associated with Site C.  The Applicant indicates that it accepts FEMA’s ineligibility determination for the Section 406 mitigation. 

The Applicant contends that additional notification for the newly identified damage at Site C should not have been required because the entire bank stabilization system at Mulberry Point is a single continuous system; it provides detailed descriptions and technical drawings[5] to demonstrate this point.  The Applicant also reiterates its first appeal argument that the notification requirement of 60 days could not be met because the newly identified damage was under the continued high river flows and not visible well beyond the 60-day deadline to report additional damage.

Discussion

Mulberry Point Bank Stabilization System as a Single Facility

Title 44 Code of Federal Regulations (C.F.R.) § 206.201(c) defines facility as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.[6]  Regulations further define project as a logical grouping of work required as a result of the declared major disaster or emergency, whereby the SOW and cost estimate for a project are documented on a PW; a project may include eligible work at several sites.[7]  The Applicant asserted that the bank stabilization system at Mulberry Point is a single continuous system, and therefore, a single facility with multiple sites including Sites B and C.  As a single facility, the Applicant argued that an additional notification for the newly identified damage at Site C should not have been required.

The Applicant provided extensive details regarding its genesis as a Private Nonprofit organization with a mission to provide safe and reliable drinking water to its member municipalities and rural water systems.  The water delivery system consists of many components including: a traditional lime treatment facility, along with multiple pump stations and reservoirs; a series of well fields located on the Missouri River, including a site known as Mulberry Point; and a bank stabilization system to protect the embankment from erosion, which in turn protects the Mulberry Point well field.  The Applicant explained that the Mulberry Point well field consists of well locations referred to as Sites A through E, lettered from north to south.

Near the Mulberry Point well field, the bank stabilization system in question was constructed as a single continuous system over 5,000 feet in length.  There are no separate and distinct sections of the bank stabilization system, the Applicant explained, as it was constructed as a single system to protect the entire well field at Mulberry Point.  The Applicant clarified that the reference to a location of the bank stabilization system, such as Site B, refers to the closest Mulberry well field site location.  This naming convention is easier to use, rather than referring to a specific location along the bank stabilization system by its original station designation, ranging from station 0+00 at the south end of the bank stabilization system to station 52+20 at the north end.  The Applicant stated that the new damage discovered at Site C is located about 200 feet downstream (south) of Site B.  As the elevation of the bank stabilization system decreased from north to south due to the river gradient, it is logical that most of the embankment at Site C was still under the high water flows when some of the damage at Site B was visible during the initial FEMA site visit.

Based on a thorough review of the documentation, including technical drawings and photographs, FEMA agrees with the Applicant that the bank stabilization system should be considered a single facility.  However, FEMA disputes the Applicant’s claim that additional notification for the newly identified damage at Site C is not required because Site C is part of the same facility as Site B.  FEMA guidance specifies that when additional damage to a facility is found after the PW is completed, the Applicant must document the damage, show that it is disaster-related, and request a re-inspection by FEMA.[8]

Timeliness of Reporting New Damage

Regulations provide that an applicant has 60 days following its first substantive meeting with FEMA to identify and to report damage to FEMA.[9]  The Public Assistance Guide further clarifies that an applicant must request assistance for any newly discovered damaged facilities within 60 days of the first substantive meeting, which is typically the Kickoff Meeting.[10]  However, there is a distinction between newly discovered damaged facility versus newly discovered damage at a facility already reported as damaged (i.e., hidden damage).

Here, the newly discovered damage at Site C is located at a facility already reported as damaged.  FEMA previously inspected the disaster-caused damage at Site B within the same facility (i.e., the bank stabilization system).  As Site C damage is not considered damage at a newly discovered damaged facility, the 60-day requirement to report newly discovered damaged facilities as outlined in FEMA regulations and guidance[11] does not apply.

Notwithstanding the inapplicability of the above-mentioned 60-day requirement, the Applicant is still required to report any newly discovered damage in a timely manner, even at a facility previously identified as damaged and already inspected by FEMA, pursuant to requirements outlined in regulations.[12]  Although regulations do not establish a specific deadline to report newly discovered damage at an already-inspected facility, FEMA guidance clearly states that to determine eligibility of any additional damage, FEMA may conduct another site visit, which should be timed to allow an inspection of the newly discovered damage before it is covered up or repaired.[13]

In this case, the Applicant completed all repair work at the bank stabilization system facility at both Sites B and C, before it reported the additional damage to the State and FEMA.  The Applicant and the Grantee both claimed the Applicant was not aware of any requirement to report additional damage to FEMA, and that it would have done so in a timelier manner otherwise. 

The Applicant’s limited level of awareness or knowledge of the federal requirements and guidelines for Public Assistance funding is not a justification for FEMA to grant time extensions or exceptions for reporting new damage.  Nevertheless, FEMA recognizes the time frame of the Applicant’s construction activities at the bank stabilization facility was limited by various environmental requirements and restrictions, and the original version of PW 2373 (which included specific language regarding the requirement to report any additional damage) was not processed and approved until ten months after the initial site inspection.  The Applicant also presented information (e.g., summary of site inspection notes and photographs) to document the newly identified damage at Site C was disaster-related.

In partially granting the first appeal, the RA approved extra funding to repair additional disaster-related damage at Site B, which was not reported to FEMA until after the project completion.  Under the circumstances discussed above, FEMA finds that the RA was correct to grant funding to repair the newly discovered disaster-caused damage at Site B.  Accordingly, additional funding for the disaster-caused damage at Site C of the same facility should also be eligible.

The Applicant stated that all construction activities at Sites B and C were conducted in accordance with previous environmental requirements, and the approval of PW 2373 Versions 0 and 1 did not modify any of the environmental requirements.  During the review of the Applicant’s second appeal, FEMA conducted a preliminary environmental and historic preservation (EHP) compliance review of the project at Site C.  FEMA anticipates that the formal EHP review will find the project compliant with applicable law, regulation, and policy, as long as the SOW completed at Site C is in line with the SOW submitted in the environmental consultation documents and the Applicant complied with all the conditions outlined in the agency responses. For a complete EHP review, the Applicant will need to submit any necessary documentation to verify compliance with project conditions when PW 2373 Version 2 is prepared to fund the work already completed at Site C.

Conclusion

The Applicant has adequately demonstrated that the bank stabilization system is a single continuous system, and hence, a single facility.  As a single facility that was already identified as disaster-damaged (at Site B) and inspected by FEMA, the newly identified damage at Site C of the same facility is not subject to the 60-day requirement after the first substantive meeting with FEMA to report new damaged facilities.  However, the Applicant is still required to report any new damage to facilities already identified as damaged.  Although the Applicant did not report the newly identified damage at Site C until after it was repaired, the Applicant documented that it was disaster-related.  Therefore, the request for a change in SOW to include its repair is approved, contingent upon successful completion of a formal EHP review.  FEMA will prepare PW 2373 Version 2 to obligate an additional $402,641.52.