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Second Appeal Brief
PA ID# 007-66200-00; Town of Springtown
PW ID# 3058; Bridges, Scope of Work
Conclusion: The Applicant is not entitled to retain the obligated funds as small project funding because it did not complete the bridge replacement in accordance with the approved scope of work nor did it establish extenuating circumstances to justify an otherwise untimely alternate project request.
In 2008, severe storms, tornadoes, and flooding in Arkansas caused damage to the Flint Creek Bridge. FEMA prepared Project Worksheet (PW) 3058 to replace, rather than repair the bridge. FEMA obligated the federal cost share of $30,013.58. In February 2011, the Applicant submitted an improved project request to build a replacement bridge 25 feet from the original. As a condition for approval, FEMA required the Applicant to submit an environmental assessment (EA). The Applicant submitted a U.S Department of Housing and Urban Development (HUD) EA, which FEMA found insufficient. The Applicant withdrew its request, opting to utilize HUD supplemental funding toward the new bridge. Meanwhile, the Applicant temporarily restored the Flint Creek Bridge, which it demolished once the new bridge was complete. The Applicant, however, sought to retain FEMA’s funding claiming that, by temporarily restoring the bridge, it completed the work according to the PW’s scope of work. Per the Grantee’s representative, the Applicant had not completed the work pursuant to the PW. Accordingly, the Region VI Director, Recovery Division, found the Applicant ineligible for small project funding and required that all funds be deobligated. In its first appeal, the Applicant alleged that: (1) it should retain funding because it complied with the PW’s scope of work by temporarily restoring the bridge to its predisaster function, (2) if FEMA considered the project incomplete, FEMA should allow the Applicant to request an alternate project, arguing that the deadline for requests was removed in FEMA DAP 9525.13 issued in 2008, or (3) if FEMA deemed the project incomplete and denied the alternate project request, FEMA should modify the PW’s scope of work to meet the Applicant’s disaster needs. The Regional Administrator denied the appeal, finding that the Applicant did not complete the project per the PW’s scope of work, and denying the alternate project request as unsubstantiated and untimely. FEMA then revised PW 3058 deobligating all funds. In its second appeal, the Applicant reiterates its claim that the project was functionally completed and states that FEMA has consistently deviated from the 12-month deadline for alternate project requests in extenuating circumstances.
- 44 C.F.R. § 206.202(f)(2) (2007).
- 44 C.F.R. § 206.203(c)(2) (2007).
- 44 C.F.R. § 206.203(d)(1)-(2) (2007).
- 44 C.F.R. § 206.205(a) (2007).
- Public Assistance Guide, FEMA 322, at 109 (June 2007).
- DAP 9525.13, Alternate Projects (July 31, 2001).
- 44 C.F.R. § 206.205(a) requires the Grantee to certify that a project was completed in line with FEMA approvals for small project funding. Pursuant to Public Assistance Guide, FEMA 322, at 109 (June 2007), failure to start or complete a small project requires FEMA to deobligate funding.
- The Applicant did not replace the Flint Creek Bridge per the PW scope of work.
- Pursuant to 44 C.F.R. § 206.203(d)(2), the Applicant may request an alternate project when the public welfare would not be best served by restoring a damaged public facility or the function of that facility. DAP 9525.13 mandates that the request be made within 12 months after the kickoff meeting. Per 44 C.F.R. § 206.202(f)(2), the deadline can be waived in extenuating circumstances.
- The Applicant requested an alternate project nearly five years post disaster without demonstrating extenuating circumstances beyond its control.