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Second Appeal Brief
PA ID# 071-78355-00; Village of Warwick
PW ID# 3; Direct Result of the Disaster, Project Management Costs
Conclusion: The Village of Warwick (Applicant) has not demonstrated the work to repair the post-disaster spillway entrance erosion damage is required as a result of the disaster. However, reasonable actual project management costs incurred for the water main work are eligible.
From August 26 to September 5, 2011, Hurricane Irene caused damage to Warwick Reservoir (Facility). FEMA prepared Project Worksheet (PW) 3 documenting $306,164.00 in costs for disaster related repairs at the lower end of the Facility’s concrete spillway. The New York State Department of Environmental Conservation (NYSDEC) issued a permit authorizing work from September 2011 to September 2012 with no restrictions on the Facility’s water level, and then issued a second work permit effective from November 2012 to June 2013, which restricted the Facility’s water elevation to 785 feet. In January 2013, the Applicant’s engineer (Tectonic) sent a letter to Earth-Tec (Contractor) requesting an estimate to repair post-disaster storm damage to the upper end of the spillway, which was previously repaired under PW 5820 in February 2012. In March 2013, the Applicant requested a change in scope of work (SOW) for $57,030.00 in costs to repair post disaster spillway entrance erosion damage and to relocate a water main that was discovered during eligible work. FEMA denied the request deeming the work ineligible because the damage was caused by the Contractor and not the disaster. The Applicant submitted its first appeal and a letter from Tectonic arguing: (1) the water main work should be approved because it was necessary to provide frost protection and to meet project specifications; (2) NYSDEC’s water level restriction left the spillway vulnerable to damage because water submerging the spillway entrance at the normal fill level would have dissipated the stormwater’s impact; and (3) the damage was also a consequence of dewatering the Facility as required to prevent water flow from entering the worksite during repairs. The FEMA Region II Regional Administrator (RA) partially granted the first appeal deeming the water main work eligible, but finding the spillway entrance work to not be required as a result of disaster-related damage. On second appeal, the Applicant requests costs to repair the post-disaster spillway entrance erosion damage and project management costs related to the eligible water main work. Tectonic’s letter attached with the second appeal argues: (1) the requested repairs resulted from “unpredictable/unknown” damage that occurred in the execution of eligible work; (2) the Contractor was not responsible for the damage because the spillway entrance was outside of the Contractor’s work area; and (3) the damage would not have occurred without NYSDEC’s water level restriction. The New York State Division of Homeland Security and Emergency Services’ (Grantee) second appeal memorandum argues: (1) the water level restriction prevented the Facility’s overflow diversion system from functioning as designed; (2) the Contractor would have been responsible for protecting the spillway entrance and could have averted the damage if the upper and lower spillway repairs were covered under one PW; (3) no measures could have prevented the storm damage while the Facility’s water level was reduced; (4) latent damage to the bypass channel possibly caused the spillway damage; (5) NYSDEC possibly failed to consider the water level restriction’s impact on the Facility’s function and design; and (6) estimated project management costs should be awarded for the water main work based on a percentage of construction costs.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.205, 206.206(a), 206.223(a)(1), 206.226.
- RRP 9525.6, Project Supervision and Management Costs of Subgrantees, at 2–3 (Apr. 27, 2001).
- Santa Barbara County, FEMA-1577-DR-CA, at 2 (Jan. 24, 2007).
- Village of Waterford, FEMA-4020-DR-NY, at 3 (Sep. 4, 2014).
- Department of Transportation, FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).
- Under the Stafford Act § 406, as implemented by 44 C.F.R. §§ 206.223(a)(1) and 206.226, FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility required as a result of a major disaster to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster.
- The requested work to repair the post-disaster spillway erosion damage is ineligible because the Applicant failed to demonstrate that the work is required as a result of the disaster.
- FEMA reimburses project management costs for engineering and design services in large projects based on reasonable actual costs, not estimated costs, claimed at final inspection and reconciliation.
- If substantiated, reasonable actual project management costs for construction inspection and project coordination related to the water main work are eligible.