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Second Appeal Brief
PA ID# 123-99123-00; Weld County
PW ID# 1005; Legal Responsibility
Conclusion: FEMA finds that at the time of the disaster the claimed work, except repairs to an adjacent slough, was the responsibility of a contractor, not the Applicant and therefore is not eligible for reimbursement. Repairs to the adjacent slough are ineligible because it is not an eligible facility.
From September 11-30, 2013 severe storms caused flooding, landslides and mudslides in Weld County, CO (Applicant). The flooding damaged the Applicant’s Hokestra Gravel Pit (Facility), which was under construction at the time of the disaster, being converted by a contractor from an abandoned rock quarry into a water storage facility. The Applicant approved a change order on December 16, 2013 for the existing contractor to repair the flood damage. The Applicant requested $135,426.43 in Public Assistance (PA) funding to reimburse a portion of the work documented in the change order. FEMA issued a PA determination memorandum on May 2, 2014 denying the request because the Facility was under construction at the time of the disaster and therefore was not the legal responsibility of the Applicant. Specifically, FEMA found that section 107.17 of the construction contract obligated the contractor to restore work damaged by “acts of God,” including floods, at no cost to the Applicant. On first appeal, the Applicant acknowledged that much of the work required for repair was the responsibility of the contractor per the provisions in the contract. However, the Applicant argued that a portion of the costs were eligible for reimbursement because they represent a change in site conditions. The Regional Administrator (RA) found section 107.17 of the construction contract to be controlling and therefore damage caused by the flooding was the responsibility of the contractor. The RA determined that section 104.02, pertaining to differing site conditions, and section 104.03, pertaining to extra work, were not applicable because flooding is not a physical condition that is hidden or concealed and the resulting damage was not unforeseen work. On second appeal, the Applicant reiterates its first appeal arguments but also asserts that it was obligated to pump the water back into the hydrological system to avoid interfering with users’ downstream rights.
Authorities and Second Appeals
Stafford Act §§ 312, 403, 406(e).
44 C.F.R. §§ 206.201(c), 206.223(a)(3).
PA Guide, at 22, 28.
City of Chi. v. FEMA, 660 F.3d 980 (7th Cir. 2013).
According to Stafford Act § 406(e)(2), If a facility is under construction at the time of the disaster, only costs that are the applicant’s responsibility, as specified in the contract, are eligible for reimbursement.
FEMA finds that the claimed work, except repairs to an adjacent slough, was under the contractor’s responsibility at the time of the disaster and as such is not eligible for reimbursement as it was not the legal responsibility of the Applicant.
Eligible natural features must be improved and maintained.44 C.F.R. § 206.201(c).