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Second Appeal Brief
PA ID# 013-53206-00; Township of Rapidan
PW ID# 1485; Environmental Compliance
Conclusion: The Township of Rapidan (Applicant) relocated its 563rd Lane roadway (Facility, such that it encroached on an archaeologically sensitive area, and installed a retaining wall at the toe of the site without prior approval from FEMA. The Applicant’s actions prevented FEMA from conducting the necessary environmental and historical preservation (EHP) reviews and consultations required by National Historic Preservation Act (NHPA) § 106. As such, the Applicant did not comply with the terms of the grant award, the project is ineligible and FEMA is within its authority to fully deobligate PW 1485.
From September 22 to October 14, 2010, severe storms and flooding impacted Blue Earth County, Minnesota. As a result, the Applicant’s Facility suffered severe embankment washouts at four site locations. Due to changing conditions of the underlying river, the Applicant proposed permanently relocating the Facility, as opposed to repairing it. FEMA agreed and prepared Project Worksheet (PW) 1485 to document contract labor and equipment costs associated with relocating the roadway away from the river. However, FEMA notified the Applicant that an archaeologically sensitive site was nearby and to not impede on the site during the course of the project. Further, the FEMA Record of Environmental Consideration (REC) explicitly stated that any change to the approved scope of work (SOW) would require re-evaluation by FEMA and failure to do so may jeopardize grant assistance funding. In reviewing the Applicant’s request for cost overrun, FEMA found that the Applicant deviated from the approved SOW without prior approval. Moreover, the deviation encroached on the sensitive site. The Applicant’s actions prevented FEMA from conducting the necessary EHP reviews and consultations, particularly those required by NHPA § 106. As such, FEMA fully deobligated PW 1485. The Applicant appealed arguing that the deviation was within the approved SOW and done to address EHP and State Historic Preservation Office (SHPO) concerns. The FEMA Region V Regional Administrator denied the first appeal determining that the Applicant deviated from the approved SOW, did not receive FEMA approval before doing so, and, thus, did not afford FEMA the opportunity to re-evaluate the project for compliance with EHP laws and Executive Orders. On second appeal, the Applicant again asserts that the project modifications were within the FEMA-approved relocation and done to address EHP and SHPO concerns.
Authorities and Second Appeals
- NHPA § 106.
- 44 C.F.R. §§ 13.30 and 13.43.
- PA Guide, at 127-128, 131 and 139-140.
- According to 44 C.F.R. § 13.30(d)(1) and the PA Guide, whenever there is a revision of the scope or the objectives of the project, the Applicant is required to notify FEMA prior to repairing or replacing the damaged element to ensure proper compliance reviews are conducted.
- The Applicant deviated from the SOW by moving the roadway 50 feet beyond what FEMA approved and installing a retaining wall on the sensitive site without obtaining approval from FEMA prior to the start of construction.
- Section 106 of NHPA requires FEMA to identify historic properties, evaluate the effects of a potential Public Assistance project on historic properties, and consult with the SHPO and other interested parties prior to the start of construction.
- Because the Applicant completed additional work without obtaining prior approval from FEMA, FEMA could not perform the necessary NHPA § 106 reviews and consultations.
- Pursuant to 44 C.F.R. § 13.43(a), FEMA may partially or wholly deobligate grant assistance funding if the Applicant materially fails to comply with the terms of the grant award.
- Complying with all EHP requirements is a condition of grant funding.
- The Applicant’s actions prevented FEMA from conducting the necessary EHP reviews; thus, the Applicant did not comply with grant terms.
- As such, FEMA’s authority allows it to fully deobligate funding from PW 1485.