Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 117-99117-00; Stanley County
PW ID# 2167; Scope of Work
From March 11, 2011 through July 22, 2011, severe storms caused flood waters to wash out a section of Stanley County’s (Applicant) road, and damaged the Applicant’s corrugated metal pipe (CMP) culvert. The South Dakota Office of Emergency Management (Grantee) conducted the Applicant’s Briefing on June 13, 2011, which included a presentation of environmental and historic preservation (EHP) compliance criteria. On November 7, 2011, FEMA prepared Project Worksheet (PW) 2167 obligating funds for permanent repairs to the Applicant’s road and a Hazard Mitigation Proposal (HMP) to replace and relocate the damaged CMP culvert. FEMA conducted an EHP review based on the PW’s submitted scope of work (SOW) and prepared a Record of Environmental Consideration (REC). The REC stated that the Applicant complied with the National Historical Preservation Act (NHPA), noting the executed programmatic agreement between FEMA, the State Historic Preservation Office (SHPO), and the Applicant met the programmatic allowance and FEMA concluded the review.
The Applicant completed construction for the project on November 29, 2011. On May 22, 2014, during closeout of the project, FEMA determined that the Applicant changed the SOW, without informing the Grantee or FEMA, and deobligated Public Assistance (PA) funding. FEMA concluded that the Applicant did not comply with the conditions required of the project outlined in the REC, as the Applicant had obtained borrow material from an excavated pit, which FEMA found to be an unapproved source, and failed to produce a mine license issued by the SHPO. FEMA noted that the location of the excavated pit did not undergo consultation for ground disturbance or disposal of fill. FEMA also determined that the Applicant graded outside its legal right of way (ROW) and used the excavated pit as a waste pit to dispose of the fill. On May 12, 2014, the SHPO declined to participate in a consultation, at the Applicant’s request, citing the Applicant’s noncompliance with federal historic preservation requirements pursuant to Title 36 of the Code of Federal Regulations (C.F.R.) § 800.4, which implements Section 106 of the NHPA.
On December 29, 2014, the Applicant wrote to FEMA’s regional EHP officer requesting clarification of the decision to deobligate. In its February 9, 2015 response, FEMA asked for documentation regarding the extent of the final project, the road’s ROW, ownership of the property, and information as to where the Applicant obtained and placed the fill material. FEMA also noted that it appeared the Applicant used previously undisturbed areas as fill, as well as that the original footprint of the road and culvert changed both in capacity and with regard to construction materials. Specifically, the completed construction included rebuilding the project with an embankment, a staging area, and road contouring, none of which were in the original SOW for the project, nor presented to the SHPO for review and comment. Finally, FEMA noted that the SHPO stated that it observed substantial ground disturbance and an on-site borrow source, which were not allowances under the executed programmatic agreement.
The Applicant responded on March 5, 2015 through its first appeal, objecting to FEMA’s determination and deobligation of funds in the amount of $189,142.50. The Applicant stated that the “amount and location of project excavation was controlled by local topography and minimum safe stopping site distance” as dictated by state guidelines. The Applicant claimed that the “earthwork quantities can be seen on the construction plans,” which also reflect that the offsite borrow source was actually the waste location. Finally, the Applicant claimed that the fill area that was being mistaken for a borrow source was actually a natural staging area as the waste material being placed there was already disturbed. In sum, the Applicant argued it did not change the SOW. The Grantee forwarded the appeal on March 31, 2015 without a recommendation.
In a letter dated December 24, 2015, the Region VIII Regional Administrator (RA) denied the appeal. The RA determined that based on photographs submitted to FEMA by the Applicant, taken before and during construction of the project, that the Applicant performed excavations and grading outside of the Applicant’s ROW. The RA noted that the site profiles in the stamped engineering drawings illustrated the need for large quantities of fill material, which expanded the ROW from 33 feet from the centerline to 117 feet from centerline. The RA found that while the road can be considered previously disturbed ground and is generally allowed for FEMA funded work, the work performed in this instance went beyond the ROW and the grading and filling constituted new ground disturbance. As such, the RA concluded that both activities went outside the PW’s SOW and potentially could impact intact cultural deposits, requiring consultation with the SHPO. The RA found that debris removal was a separate category of work, requiring the debris to be separated and disposed of in an approved disposal site, and determined that the disposal site created by the Applicant was neither a previously disturbed site, nor approved for fill. Citing to NHPA Section 106, the RA explained that FEMA must be afforded the opportunity to evaluate the impact of a proposed project before approving grant funding to ensure that historic properties and cultural resources are adequately considered and that the Applicant failed to afford both FEMA and SHPO that opportunity after changing its SOW. As such, the RA concluded the work was ineligible.
In a letter dated February 23, 2016, the Applicant appeals the RA’s determination relating to the $189,142.50 in funding. The Applicant contends that it completed the project within the PW’s SOW, and the decision to deny PA funding is inconsistent with FEMA’s regulations and policies. The Applicant notes that the construction plans for the project are dated October 12th and 13th of 2011 and claims that FEMA personnel had the plans when the PW was developed on November 7, 2011. Further, the Applicant argues that it constructed the project with the same engineered plans that FEMA approved in the SOW and consequently could not have changed the SOW. The Applicant states that while the contractor staged equipment on private property, it did not change the SOW. In a letter from the Applicant’s engineer, he stated that, “[t]he project was completed within normal construction tolerances of the parameters detailed by the construction plans.” The Grantee forwarded the appeal on March 2, 2016.
Change in the Scope of Work-NHPA Requirements
Pursuant to The Robert T. Stafford Disaster Relief and Emergency Act (Stafford Act) § 406, FEMA may reimburse a state or local government for costs associated with the repair, restoration, reconstruction, or replacement of an eligible facility damaged or destroyed by a declared disaster. Stafford Act § 406 also grants FEMA authority to fund hazard mitigation measures that the State or local government determines to be necessary. However, FEMA must also comply with a range of federal statutes, regulations and Executive Orders related to EHP when providing PA funding.
Section 106 of NHPA requires federal agencies take into account the effects a project will have on historic and cultural resources and allow the Advisory Council on Historic Preservation (ACHP) the opportunity to comment on the effects of a project. Also, Section 106 of NHPA and 36 C.F.R. Pt 800 mandate that FEMA identify historic properties that may be affected by the FEMA funded activities, evaluate the impact of proposed work on the properties, consult with the SHPO, and if appropriate, the ACHP, and proceed with the work only after completing the historic compliance review process. FEMA must be afforded the opportunity to satisfy these requirements before the Applicant proceeds with the actual work. When an applicant initiates or completes work on a project before FEMA is able to conduct the necessary EHP compliance review, the work generally is not eligible for PA funding. In addition, pursuant to 44 C.F.R. § 13.30(d)(1), an applicant must obtain the prior approval of FEMA when it makes any revision of the scope of the project. Here, the above regulations and requirements are also incorporated in PW 2167 and the REC.
The Applicant argues in its second appeal that FEMA prepared the PW based on the construction plans submitted, and because the Applicant constructed the project with the same engineered plans, there is no way it changed the SOW. The Applicant also claims that FEMA had possession of the plans when preparing the PW. However, even if, arguendo, FEMA had the construction plans, it did not incorporate those plans or reference the plans in PW 2167. Furthermore, the SOW is more than just engineered plans. It incorporates the Applicant’s duty to comply with EHP compliance requirements. Nonetheless, FEMA’s EHP staff reviewed the SOW in PW 2167, which was for a much smaller project than the project’s plans and the completed construction. The photographs in the administrative record show heavy earthmoving equipment grading the hillside and a large area of disturbance beyond the area approved in the SOW.
In concluding that the Applicant’s work went beyond the scope, FEMA reviewed the PW, the project’s cost estimating format (CEF), and the SHPO allowances. The PW details that the scope of work includes replacement of the CMP culvert, rip rap, mesh fabric and erosion control seeding, mulch and mobilization, as well as the measurements for each. The PW also reflects a mitigation measure with the replacement and relocation of the damaged CMP culvert with a concrete box culvert and a new CMP culvert. While the CEF took into account that the project would require excavation and grading, neither the CEF nor the SOW allowed for the actual extent of excavation or grading performed by the Applicant.
In addition, filling the waste pit exceeds the parameters of the SOW. Neither PW 2167’s SOW nor the CEF mention filling a waste pit and once it was filled, FEMA could not determine whether any historic properties were present.
Ultimately, the Applicant executed work beyond the approved scope of work and did not inform FEMA through the State until after completion. This action precluded FEMA from reviewing the change in scope to determine if historic properties were present, ascertain what effect, if any, the work had on historic properties identified, and seek measures to avoid or minimize any adverse effects on those properties—all steps that FEMA has a regulatory and legal responsibility to ensure before work is initiated. Therefore, because FEMA was unable to take these steps, the work is ineligible for PA.
Programmatic Agreement Allowances
As noted previously, 36 C.F.R. Part 800.14(b)(3) allows FEMA to establish programmatic agreements in consultation with the SHPO, Grantee, and the ACHP, if participating, to outline roles and responsibilities, streamline the process for compliance with NHPA for certain types of projects, and identify those projects excluded from NHPA review. The Applicant states in its second appeal that it met the programmatic allowances outlined in the PW, which was communicated to the Applicant by a FEMA representative, and that it was either misinformed or misled that a further SHPO permit “would or could” be necessary.
However, the REC explicitly provides that (1) any change to the approved scope of work will require re-evaluation for compliance with NHPA; (2) acceptance of federal funding requires the recipient to comply with all federal, state, and local laws; and (3) failure to obtain all appropriate federal, state, and local environmental permits and clearances may jeopardize federal funding. Ultimately, the Applicant has a responsibility to comply with all federal and state laws applicable to a project when receiving assistance. Here, the Applicant changed the SOW and did not have the project reevaluated for purposes of meeting NHPA and REC requirements and complying with SHPO allowances.
As such, FEMA was not afforded the opportunity to perform an EHP compliance review of the changed SOW prior to the Applicant’s initiation and completion of the work. FEMA does not have statutory or regulatory authority to rely on the Applicant’s after-the-fact review. Therefore, the repair and mitigation work is not eligible for PA funding.
The Applicant changed the approved SOW and did not afford FEMA the opportunity to conduct a historic preservation review and consult with SHPO, as required by Section 106 of the NHPA and the executed Programmatic Agreement between FEMA, the Grantee, and SHPO. Accordingly, the work is not eligible for PA funding and the appeal is denied.
 A programmatic agreement is a tool used by FEMA in accordance with 36 C.F.R. Part 800.14 (b)(3) to integrate and expedite FEMA's NHPA Section 106 responsibilities, and substitute for the standard regulatory process outlined in 36 C.F.R. Part 800. The agreement, which is typically applicable statewide and signed by FEMA, the Grantee, the SHPO and the Advisory Council, if participating, establishes a coordination and scoping process at the beginning of the disaster, excludes the review of routine activities from SHPO review, and shortens timeframes for review by the SHPO. Programmatic Agreements, (Nov. 6, 2015), https://www.fema.gov/programmatic-agreements.
 The SHPO noted that the Applicant did not follow “the spirit of the Programmatic Agreement,” as the on-site borrow source was not an allowance under the agreement, and with the project completed there was no longer an opportunity to review the area for potential artifacts or historical significance. E-mails between Review and Compliance Coordinator, SHPO, and Environmental Specialist/PA Liaison, (May 12, 2014, 14:09 and 16:38 MDT) [hereinafter SHPO Emails].
 FEMA First Appeal Analysis, Stanley County, FEMA-1984-DR-SD, at 3 (Dec. 24, 2015) (also noting that the photographs taken before construction indicate undisturbed ground past the ROW in the excavated areas).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007) [hereinafter Stafford Act].
 Id. at § 406(c)(1)(B)(iii)
 Public Assistance Guide, FEMA 322, at 127 (June 2007) [hereinafter PA Guide].
 16 U.S.C. 470f, Section 106; 16 U.S.C. 470h-2(a)(2)(D)-(E), Section 110a [hereinafter NHPA § 106]; 36 C.F.R. Pt. 800.4 (requiring that FEMA consult with SHPO to determine and document any historical properties in accordance with Section 106 of NHPA); PA Guide, at 131(reiterating that FEMA must consult with the SHPO at the beginning of the recovery process to address projects potentially falling within the scope of the NHPA).
 NHPA § 106; 36 C.F.R. Pt. 800.4.
 Id.; Disaster Assistance Policy 9560.3, Programmatic Agreement-Historic Review, at 6 (May 29, 2002) (stating that “Section 106 of NHPA requires all Federal agencies to review the effect of an agency undertaking on historic properties prior to funding the project, activity, or program.”) [hereinafter DAP 9560.3].
 See FEMA Second Appeal Analysis, Villa Del Monte Mutual Water Company FEMA-1646-DR-CA, at 2 (Jun. 9, 2010) (denying funding due to the applicant completed a project beyond the SOW before FEMA could conduct necessary EHP compliance review).
 44 C.F.R. § 13.30(d)(1).
 Project Worksheet 2167, Stanley County, Version 0 (Nov. 7, 2011) (stating that the Applicant “will assist the awarding agency in assuring compliance with Section 106 of the [NHPA]); Record of Environmental Consideration (Feb. 2, 2012) (stating that “[a]ny change to the approved scope of work will require re-evaluation for compliance with [NHPA]…Acceptance of federal funding requires recipient to comply with all federal…laws. Failure to obtain all appropriate federal, state, and local…clearances may jeopardize federal funding.”) [hereinafter REC].
 Letter from Bd. of County Comm’rs Chairman, Stanley County, to Recovery and Mitigation Manager, SD Office of Emergency Mgmt., at 2 (Feb. 23, 2016) [hereinafter Second Appeal Letter].
 PW 2167, Stanley County, Version 0.
 CEF Fact Sheet, Stanley County-Culvert Replacement / Repair (Feb. 7, 2012).
 REC, at 3. (stating, “[w]ork meets 4/13/2011 FEMA and SHPO Letter of Intent to utilize the Programmatic Agreement, Appendix A: Programmatic Allowances. Project fits into category IV: A, B, and C.)
 44 C.F.R. §§ 13.30 and 13.37.