Conclusion: The repair work performed on Roseau County Highway Department’s (Applicant) drainage system (Facility) went beyond the approved scope of work and/or was partially completed after the last FEMA-approved time extension for all PWs. As such, the work is not eligible under the Public Assistance (PA) program. In addition, the first appeals for Project Worksheets (PWs) 273, 275 and 284 were not submitted within the statutory timeframe.
From March 1 to May 30, 1999, severe ice storms, heavy rains, and flooding impacted northwestern Minnesota. As a result, the Applicant’s Facility accumulated silt and sediment deposits constricting the ditch channels and reducing predisaster use and function of the Facility. FEMA prepared Project Worksheets (PWs) 265, 273, 275, 284 and 294 to address repair work to the Facility. During closeout, FEMA reduced funding for the entire project due to a myriad of issues, including environmental violations, work performed beyond the approved scope, and work performed after the FEMA-extended project completion deadline of. The Applicant was notified of FEMA’s deobligations via Sub-grant Amendment 17 sent by the Grantee. The Applicant acknowledged receipt of Amendment 17 on November 4, 2013. In March 2014 letters, the Applicant appealed FEMA’s closeout deobligations for the subject PWs. FEMA Region V sent final Requests for Information (RFIs) asking for “a reasonable justification, or extenuating circumstances…, to exempt [the Applicant] from the required time limitations for filing a first appeal.” The Applicant responded that it was confused by the appeal process and expected a formal eligibility determination as required by the Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual). On December 21, 2015, the Region V Regional Administrator denied the appeals in separate decisions finding that the first appeals were untimely, the projects violated environmental compliance requirements, and the Applicant performed work outside the approved scope of work and beyond the last approved time extension. On second appeal, the Applicant reiterates that the initial eligibility notices were deficient and provides a letter from the U.S. Army Corps of Engineers to refute claims it violated environmental requirements.
Authorities and Second Appeals
- Stafford Act § 423.
- 44 C.F.R. §§ 13.30, 206.204, and 206.206.
- PA Guide, at 84-85, 102, 104 and 115-116.
- Public Assistance Program Appeal Procedures, at 10-12, 14.
- Pursuant to Stafford Act § 423 and 44 C.F.R. § 206.206(c), the Applicant has 60 days from receipt of notice to appeal an eligibility determination.
- The Appeals Manual, first issued on July 26, 2013, created a heightened notification requirement for eligibility determinations.
- The Applicant’s first appeals for PWs 273, 275 and 284 were untimely.
- Awarded after the issuance of the Appeals Manual, FEMA was required to issue PA Determination Memorandum for PWs 265 and 294, and therefore, these appeals are timely.
- According to 44 C.F.R. § 13.30 and the PA Guide, whenever there is a revision of the scope or the objectives of the project, the Applicant is required to notify the Grantee—who, in turn, notifies FEMA—prior to repairing or replacing the damaged element to ensure proper compliance reviews are conducted.
- The Applicant performed work outside the approved scope and did not obtain approval from the Grantee and FEMA prior to performing the additional work.
- 44 C.F.R. § 206.204 provides that permanent work must be completed within 18 months of the disaster declaration date absent an approved time extension.
- Portions of the project were completed after the FEMA-extended project completion deadline of November 30, 2008.