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Second Appeal Brief
PA ID# 169-99169-00; Pulaski County
PW ID# 10, 381, 382, 383, 384, and 386; Roads, Appeal Timeliness, Codes and Standards, Scope of Work
Conclusion: Pulaski County (Applicant) failed to submit second appeals related to 10 of the 12 water crossing sites in a timely manner. The Applicant’s requested changes to the Scopes of Work (SOWs) for all 12 sites are otherwise ineligible, as the project designs for each reflect an ineligible construction standard. Nevertheless, the Applicant may request changes to the SOW reflecting eligible hazard mitigation measures, or request improved projects. FEMA Region VII must assist the Applicant in developing the SOW for each site.
From August 2-14, 2013, flooding severely damaged numerous water crossings in Pulaski County, Missouri. FEMA prepared the above-named Project Worksheets (PWs) to completely replace the water crossings, with total estimated costs of $282,546.05. The Applicant prepared design plans to replace 12 of the water crossing sites, and submitted corresponding SOW change requests through the State of Missouri Emergency Management Agency (Grantee). FEMA denied each request, finding the U.S. Army Corps of Engineers (USACE) Nationwide Permit (NWP) guidelines used to develop the designs did not meet the criteria for eligible codes and standards under 44 C.F.R. § 206.226(d). On first appeal, the Applicant stated its designs were required to obtain USACE authorization, and argued that the NWP guidelines were a legal Federal requirement that met the codes and standards criteria required by regulation. The FEMA Region VII Regional Administrator denied all appeals, and stated that the NWP and other guidelines used by the Applicant did not meet the eligibility criteria found in 44 C.F.R. § 206.226(d). On second appeal, the Applicant again claims eligibility for its project designs, with estimated costs of $2,037,423.25 across all 12 sites.
Authorities and Second Appeals
- Stafford Act §§ 406(e), 423(a).
- 44 C.F.R. §§ 206.202(d)(1)(i), 206.206(c)(1), 206.226(d).
- Public Assistance Guide, at 101.
- DAP 9527.4, Construction Codes and Standards, at 3.
- City of Plattsburgh, FEMA-4020-DR-NY, at 4.
- City of Petaluma, FEMA-1628-DR-CA, at 4.
- City of Gulfport, FEMA-1604-DR-MS, at 3.
- Per Stafford Act § 423(a), an applicant must submit its appeal within 60 days of receipt of notice of an appealable action.
- The Applicant submitted a second appeal for 10 of the 12 sites 202 days after it received notice of the RA’s decision.
- The second appeals are untimely.
- Per 44 C.F.R. § 206.226(d), replacement codes and standards must meet eligibility criteria to receive PA funding assistance.
- The NWP guidelines contain discretionary language, which precludes FEMA from concluding uniform application, and consequently the guidelines do not meet the criteria for eligible codes and standards.
- FEMA cannot approve the Applicant’s current SOW change requests.
- Per 44 C.F.R. § 206.202(d)(1)(i), a PW must identify an eligible SOW.
- The Applicant may request SOW changes reflecting eligible hazard mitigation measures, or request improved projects.