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Second Appeal Analysis
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
From August 2 to 14, 2013, severe storms, straight-line winds, and flooding damaged numerous water crossings (corrugated metal pipe (CMP) and box culverts, concrete slab low water crossings, and a concrete overpass) in Pulaski County, Missouri (Applicant). The President declared a major disaster on September 6, 2013.
Between October 2013 and April 2014, FEMA prepared Project Worksheets (PWs) 10, 381, 382, 383, 384, and 386 to document eligible Category C (roads/bridges) work to restore the Applicant’s water crossings to their predisaster condition, with a total estimated cost of $282,546.05 for all projects. FEMA approved a scope of work (SOW) under each PW to completely replace the water crossings using force account labor, equipment, and materials, and informed the Applicant of construction permitting requirements necessary for each project.
The Applicant hired a contractor to prepare engineering reports and design plans for each recommended water crossing replacement structure. The contractor began planning for each new replacement structure to comply with construction guidelines required to receive permit authorization from the U.S. Army Corps of Engineers (USACE) under its authorities to regulate the discharge of dredged or fill material into waters of the United States. Between March and July 2015, the Applicant submitted design plans for each project to USACE for review.
USACE issued a series of jurisdictional determination memorandums, authorizing the Applicant’s project designs under nationwide permits (NWPs). USACE noted that the Applicant’s projects were required to comply with guidelines found in the Missouri Nationwide Permit Regional Conditions. At the request of the State of Missouri Emergency Management Agency (Grantee), the Applicant also submitted separate project designs that would restore each water crossing to its predisaster condition, which more closely reflected the items of work in the approved SOWs. In email correspondence from this time, USACE advised the Applicant such designs would not meet NWP guidelines, and would therefore not be authorized.
Because the predisaster designs failed to meet USACE permitting requirements, the Applicant submitted SOW change requests to FEMA for selected sites documented in PWs 10, 381, 382, 383, 384, and 386. The SOW change requests reflected the design plans approved by USACE, and noted increased costs for each project; the increased costs resulted from changes the Applicant claimed were necessary to “meet current bridge design standards and [satisfy] the appropriate permits for new stream crossings.” Items of work reflected in the SOW change requests substantially upgraded the primary structure(s) at the majority of the water crossing sites (for example, replacing CMP culverts with triple box culverts or a slab-beam bridge).
From August 2015 to April 2016, FEMA issued a series of Determination Memoranda that denied the Applicant’s SOW change requests. Generally, FEMA found that the various construction guidance and specification documents used to develop the Applicant’s project designs did not meet the criteria for eligible codes and standards listed at 44 C.F.R. § 206.226(d) and described in more detail by Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards (2008). Regarding the NWP guidelines in particular, FEMA found: (1) USACE did not mandate specific design criteria through the NWP general or regional conditions; (2) lower cost options were possible that would meet permitting requirements; and (3) the Applicant failed to demonstrate USACE had denied permits for project designs that would return each water crossing to its predisaster condition.
From October 2015 to June 2016, the Applicant submitted a first appeal request for 12 sites documented in the 6 PWs, and requested FEMA approve the SOW change requests. The combined dollar amount for all appeals totaled $2,212,399.50. For each PW, the Applicant argued: (1) changes to the approved SOWs were required to ensure compliance with NWP guidelines and obtain authorization for each project from USACE; and (2) the NWP general and regional conditions represented a legal Federal requirement that met the eligibility criteria for codes and standards under 44 C.F.R. § 206.226(d). Further, the Applicant listed additional construction guidance and specification documents that it used in developing the upgraded designs, and cited 44 C.F.R. § 206.400(c) (“Minimum Standards”) as justification for their use. The Grantee’s transmittal letters expressed support for the Applicant’s appeals.
FEMA issued a Final Request for Information (RFI) on April 21, 2016 and October 11, 2016. FEMA requested extensive documentation, including: (1) documents describing various aspects of each predisaster water crossing structure, including proof of compliance with regulatory requirements and a narrative describing the effects of the disaster; (2) all USACE permit applications submitted for each site, including design plans and maps; (3) information related to the codes and standards used by the Applicant in developing its upgraded project designs; and (4) documentation related to hydrological and hydraulic requirements at each water crossing site. Additionally, FEMA determined that for each site there were multiple alternative designs that would be less costly to construct, while still satisfying the NWP conditions. FEMA directed the Applicant to provide at least three alternative designs for each site, including proposed SOWs and estimated costs, and to identify the design with the lowest economic impact.
The Applicant submitted separate responses for each site on appeal, and attached USACE permit applications, evidence of permit denial (in some cases), and hydrological study information. The Applicant stated it was unable to provide information showing that the predisaster structures complied with regulatory requirements, as such records were no longer available due to the age of each structure. Finally, the Applicant provided alternative design plans for 8 of the 12 sites on appeal, and stated that in each case its SOW change requests reflected the design with the lowest economic impact.
In decisions dated September 2, 2016 and January 18, 2017, the FEMA Region VII Regional Administrator (RA) denied the Applicant’s appeals. The RA affirmed FEMA’s earlier determinations that the construction guidelines used to develop the Applicant’s SOW change requests did not meet eligibility criteria for Public Assistance (PA) funding under 44 C.F.R. § 206.226(d) and DAP 9527.4. The RA determined that the NWP general and regional conditions allowed for discretion in their application and therefore did not apply uniformly to all sites, and the Applicant failed to demonstrate the formal adoption of the guidelines prior to the disaster. Likewise, the industry, State, and local construction guidelines used to develop the Applicant’s preferred designs were ineligible for PA funding. Finally, the RA found that the Applicant had skewed its hydrological and hydraulic analyses to favor its preferred project designs, and failed to provide alternative project designs of reasonable cost that were “close in design to the pre-disaster [sic] configuration” of each site, and would also meet permitting requirements. The total estimated funding for the 12 sites remained $215,569.79.
In letters dated March 17 and 27, 2017, the Applicant appeals the RA’s decisions and requests approval of the SOW changes for the 12 sites on appeal, funding for the combined estimated costs of the corresponding project designs ($2,037,423.25), and for a meeting with FEMA to receive guidance on developing a SOW that is acceptable to FEMA but also complies with permit requirements. The Grantee’s transmittal letters express support for the appeal and the Applicant’s meeting request.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423(a) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.” Applicants must submit appeals within 60 days of receipt of the notice of the action that is being appealed. Neither the Stafford Act nor implementing regulation authorizes FEMA to grant time extensions for filing appeals.
The Applicant received the first appeal decision for 10 of the 12 sites on appeal (PW 10, site 1; PW 381, sites 2-4; PW 382, sites 1-3; PW 383; PW 384; and PW 386, site 2) on September 6, 2016. The Applicant dated its second appeal letter March 27, 2017. Therefore, 202 days elapsed between the date the Applicant received notification of the RA’s first appeal decision and the date of its second appeal. As such, the second appeal for these 10 sites was untimely.
Timeliness aside, the appeal for all 12 water crossing sites would otherwise be denied, as explained below.
Codes and Standards
The Stafford Act § 406(e) authorizes FEMA to provide Federal assistance to a local government for the repair, restoration, or replacement of a facility damaged by a declared disaster, in conformity with codes, specifications, and standards applicable at the time the disaster occurred. FEMA may reimburse costs of Federal, state, and local repair or replacement codes or standards, if the codes or standards: (1) apply to the type of repair or restoration required; (2) are appropriate to the predisaster use of the facility; (3) are found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date or are a legal Federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and (5) were enforced during the time the standards were in effect. FEMA has the authority to determine which repairs, code-mandated or otherwise, are eligible for assistance, and generally does not fund code-mandated work that does not meet all five criteria, regardless of whether the work is needed to obtain a building, occupancy, environmental, or other permit. An eligible code or standard must contain objective standards based on specific design criteria. Guidelines that offer generic guidance or merely make recommendations do not satisfy the eligibility criteria in 44 C.F.R. § 206.226(d).
USACE authorized the Applicant’s preferred designs, provided the projects remained in compliance with the NWP general and regional conditions. The terms of the NWP conditions offer guidance for construction, but do not mandate the adoption of specific design criteria. As stated in the RA’s decision, the NWP conditions (in particular NWP General Condition 9 (Management of Water Flows) and the Missouri NWP Regional Conditions, which the Applicant identified as containing the controlling standard for development of its project designs) frequently use discretionary language and broad guidelines in describing construction practices. Where specific criteria are given, the NWP conditions frame such criteria in terms of recommendations, versus requirements for mandatory adherence. Insofar as the NWP conditions constitute standards for construction, they are subjective and allow for significant discretion in implementation. The NWP conditions do not meet the criteria for eligible codes and standards, therefore FEMA cannot approve the Applicant’s current SOW change requests.
Scope of Work
Per 44 C.F.R. § 206.202(d)(1)(i), a PW must identify an eligible SOW and must include a quantitative estimate for the eligible work. The scope of eligible work necessary to repair the damage must be completely described and correspond directly to the cause of the damage. Any information that is pertinent to the SOW should be documented in the PW, including eligible codes and standards, especially if proposed repairs or replacements exceed the predisaster design.
At the Grantee’s request, the Applicant prepared design plans that reflected each water crossing structure as it existed prior to the disaster. The Applicant submitted the designs to USACE for permitting review. Regarding the sites associated with timely appeals (PW 382, site 4 (White Road) and PW 386, site 4 (White Oak Road)), the designs accurately reflected the predisaster water crossing structures, as described in the respective PWs. The Applicant submitted email correspondence with the first appeal wherein USACE determined that the predisaster designs for these sites would not comply with the construction guidance found in the NWP general and regional conditions. USACE approved the Applicant’s preferred design, which included significant improvements. Therefore, a situation exists whereby the designs that would return the sites to their predisaster condition, reflected in the SOW approved by FEMA, do not satisfy USACE requirements, while the upgraded designs preferred by the Applicant are authorized by USACE, but were found ineligible by FEMA.
On second appeal, FEMA examined the available information, including project design plans, schematics, estimates, and other documentation, to determine whether alternative project designs were feasible. The Agency concluded: (1) the Applicant’s preferred designs included elements not justified or explained by the available data, such as relocating one of the water crossings from its predisaster location, and widening the roadways at both sites; (2) the Applicant’s preferred designs resulted in increased costs, which were likely unnecessary; and (3) less expensive water crossing designs (using CMPs) were potentially feasible. FEMA also found that some of the desired work could potentially constitute eligible hazard mitigation measures under Section 406 of the Stafford Act.
In light of these findings, the Applicant is encouraged to submit hazard mitigation requests to FEMA through the Grantee. Such requests must meet requirements for cost effectiveness and technical feasibility, and otherwise comply with regulation and FEMA policy. If pursued, the Applicant’s request for guidance on developing an eligible SOW, which should include consideration of Section 406 hazard mitigation measures, is reasonable and therefore granted. FEMA Region VII must assist the Applicant with such efforts for PW 382, site 4 (White Road) and PW 386, site 4 (White Oak Road), as required by 44 C.F.R. § 206.202(d)(1)(i). If a request for hazard mitigation does not meet eligibility requirements, the Applicant will need to pursue improved projects, though this would limit funding to the Federal share of the costs that would be associated with repairing or replacing the damaged facility to its predisaster design, or to the actual costs of completing the improved project, whichever is less.
The Applicant failed to submit its second appeal related to 10 of the 12 water crossing sites within the time allowed by 44 C.F.R. § 206.206(c)(1). Consequently, its second appeal rights have lapsed. Moreover, the applicable NWP general and regional conditions do not constitute eligible standards that justify the Applicant’s current SOW change requests, as required by 44 C.F.R. § 206.226(d). Notwithstanding such, the Applicant’s timely request for guidance regarding an eligible SOW, which might include hazard mitigation measures, is approved. Work beyond what is eligible for PA should be considered as part of an improved project. FEMA Region VII must provide guidance to the Applicant on developing an eligible SOW.
 The approved SOWs included the following items of work: for PW 10, the replacement of 9 CMP culverts of varying lengths (estimated cost: $10,111.98); for PW 381, the replacement of 3 CMP culverts of varying lengths, 2 concrete box culverts of varying dimensions, 1 concrete low water crossing, and 1 concrete overpass with associated support structures (estimated cost: $98,389.63); for PW 382, the replacement of 14 CMP culverts of varying lengths (estimated cost: $103,952.72); for PW 383, the replacement of 7 CMP culverts of varying lengths and the replacement of lost surfacing material along 2,468 linear feet of Lafayette Road (estimated cost: $39,543.33); for PW 384, the replacement of a concrete slab low water crossing (estimated cost: $10,401.30); and for PW 386, the replacement of 6 CMP culverts of varying lengths and the replacement of eroded gravel fill at a separate site (estimated cost: $20,147.09).
 All PWs except PW 386 advised the Applicant of its responsibility to obtain all applicable local, State, and Federal permits prior to any construction.
 33 C.F.R. § 330.1(b) (“[NWPs] are a type of general permit issued by [USACE] and are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts. The NWPs are proposed, issued, modified, reissued (extended), and revoked from time to time after an opportunity for public notice and comment.”)
 USACE specified that the projects under PW 10, site 1; PW 383; PW 384; and PW 386, site 2 were required to comply with Missouri Regional Condition 1 (General Guidelines for Stream Crossings), and all PW/sites (except PW 10, site 1) were required to comply with Missouri Regional Condition 4 (Suitable Material). Further, Missouri NWP Regional Condition 1 (General Guidelines for Stream Crossings) specifies that water crossing construction projects must also comply with NWP General Condition 2 (Aquatic Life Movements) and NWP General Condition 9 (Management of Water Flows).
 Documentation in the administrative record shows similar USACE assessments for the other PWs/sites on appeal, with the exception of PW 381, sites 3 and 4 and PW 383. E.g., Email from Regulatory Specialist, Kan. City Dist., USACE, to Great River Eng’g (June 17, 2015, 08:37 CST) (referring to the predisaster design of PW 10, site 1 and finding “the proposed installation of two 36-inch culverts would not meet the minimum sizing requirements specified in the attached ‘Missouri Nationwide Permit Regional Conditions’ and the ‘General Guidelines for Stream Crossings’ [sic]”).
 Letter from Mgr., Recovery Div., State of Mo. Emer. Mgmt. Agency (SEMA), to Dir., Disaster Assistance Div., FEMA Region VII, at 1 (Aug. 6, 2015) (submitting a SOW change request for PWs 381, 382, and 383); Letter from Mgr., Recovery Div., SEMA, to Dir., Disaster Assistance Div., FEMA Region VII, at 1 (Sept. 24, 2015) (submitting a SOW change request for PWs 10 and 386). Other first appeal documentation refers to a SOW change request for PW 384, however one was not included in the administrative record.
 Letter from Cty. Clerk, Pulaski Cty., to SEMA, at 1 (Aug. 6, 2015). For the sites on appeal, the items of work in the Applicant’s SOW change requests carried a total estimated cost of $2,212,399.50, compared to $215,569.79 in funding under the approved SOWs for the same sites.
 FEMA Region VII prepared a Determination Memorandum for 11 of the 12 sites on appeal, and used the same (verbatim) analysis and conclusion in each. FEMA did not prepare a Determination Memorandum for PW 384.
 Due to an earlier document labeling error, the Applicant submitted two first appeal requests for PW 382, site 2; each listed a different dollar amount on appeal. This analysis uses the amount from the later appeal submission ($202,027.50) in the combined total above.
 These were, variously, the Mo. Dept. of Transp. Eng’g Policy Guide, the Mo. Dept. of Transp. – Practical Design, the American Ass’n of State Highway and Transp. Officials (AASHTO) Load and Resistance Factor Design Bridge Design Specifications, the AASHTO Guidelines for Geometric Design of Very Low Volume Roads, and Hydraulic Eng’g Circ. No. 18 (Evaluating Scour at Bridges). Though not mentioned in the Applicant’s first appeal letters, local standards titled Specifications for Accepting Blacktop Roads in the County and Specification for Accepting New Gravel Roads in the County were included in the administrative record and addressed in FEMA’s first appeal determination.
 44 C.F.R. § 206.400(c) (2012) (stating “[i]n situations … where there are no applicable local codes, specifications, and standards governing repair or construction activities … the Regional Administrator may, after consultation with appropriate State and local officials, require the use of nationally applicable codes, specifications, and standards … in the course of repair or construction activities”).
 Letter from Mgr., Recovery Div., SEMA, to Reg’l Adm’r, FEMA Region VII, at 1 (Oct. 28, 2015); Letter from Mgr., Recovery Div., SEMA, to Reg’l Adm’r, FEMA Region VII, at 1 (Nov. 16, 2015); Letter from Mgr., Recovery Div., SEMA, to Reg’l Adm’r, FEMA Region VII, at 1 (Jan. 27, 2016); and Letter from Mgr., Recovery Div., SEMA, to Reg’l Adm’r, FEMA Region VII, at 1 (June 22, 2016).
 Due to the extended timelines for issuance of the PA Determination Memoranda and the submission of the Applicant’s first appeals, FEMA issued two Final RFIs. The Apr. 2016 RFI covered the sites from all 6 PWs that were on appeal by that date; the Oct. 2016 RFI included sites from PWs 382 and 386 that were appealed subsequently.
 Both RFIs requested the same (in most cases verbatim) information. The Oct. 2016 RFI added a question specific to the estimated project costs for PW 382, site 4.
 A response to the Final RFI for PW 382, sites 2 and 4 was not included with the administrative record.
 The Applicant did not submit alternative project designs for PW 381, sites 3 and 4, and instead stated that its preferred design constituted a replacement structure with the same design, function, and capacity as the predisaster water crossing. Additionally, as above, a response to the Final RFI for PW 382, sites 2 and 4 was not included with the administrative record.
 Letter from Great River Eng’g, to Pulaski Cty. Comm’n, at 2 (May 23, 2016). In its response to the Final RFI, the Applicant changed its preferred construction designs for the replacement water crossings at PW 381, site 2; PW 383; and PW 386, site 2. The changed designs presented a “lower economic design alternative” that would “meet the Clean Water Act (USACE 404 permit),” and lowered the total amount on appeal to $2,029,390.75.
 The PWs and sites discussed in the RA’s Sept. 2016 and Jan. 2017 appeal determinations mirrored those found in the Apr. 2016 and Oct. 2016 RFIs, respectively. Both first appeal decisions used the same arguments and verbatim language in the appeal analyses, only changing dates, amounts on appeal, and minor details.
 The RA found that the other codes cited in the Applicant’s appeals were ineligible for various reasons: they did not apply to the type of restoration required (as in the Specifications for Accepting New Gravel Roads in the County), or the enforcing agency was not authorized to establish enforceable codes applicable to the Applicant’s roads (as in the Mo. Dept. of Transp. and AASHTO design guidelines). The RA also stated that the Applicant misapplied 44 C.F.R. § 206.401(c), Minimum Standards, in developing its projects.
 Letter from RA, FEMA Region VII, to Western Comm’r, Pulaski Cty. Comm’n, at 4 (Jan. 18, 2017).
 On second appeal, the Applicant raises the dollar amount on appeal for PW 382, site 2 to its originally quoted amount ($210,060.00), thereby raising the total amount on appeal to $2,037,423.25.
 Letter from Mgr., Recovery Div., SEMA, to Dir., Recovery Div., FEMA Region VII, at 1 (Mar. 23, 2017); Letter from Mgr., Recovery Div., SEMA, to Dir., Recovery Div., FEMA Region VII, at 1 (Apr. 6, 2017).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288 § 423(a), 42 U.S.C. § 5189a (2013).
 44 C.F.R. § 206.206(c)(1).
 FEMA Second Appeal Analysis, City of Plattsburgh, FEMA-4020-DR-NY, at 4 (June 8, 2016).
 Letter from Regional Adm’r, FEMA Region VII, to Western Comm’r, Pulaski Cty. Comm’n, at attachment “PS Form 3811” (Sept. 2, 2016) (showing a U.S. Postal Service Certified Mail Domestic Return Receipt addressed to the Applicant, with the delivery section signed and dated on Sept. 6, 2016).
 Letter from Western Comm’r, Pulaski Cty. Comm’n, to SEMA, at 1 (Mar. 27, 2017).
 44 C.F.R. § 206.226(d).
 Disaster Assistance Policy DAP9527.4, Construction Codes and Standards, at 3 (Feb. 5, 2008).
 FEMA Second Appeal Analysis, City of Petaluma, FEMA-1628-DR-CA, at 4 (Aug. 13, 2012) (stating that the documents cited by the Applicant in justifying its claim do not “contain objective standards based on specific design criteria” and are therefore “not equivalent to a mandatory code or standard”).
 USACE, Nationwide Permit General Conditions (2012) (stating under General Condition 9, “[t]o the maximum extent practicable, the pre-construction course, condition, capacity and location of open waters must be maintained for each activity”) and Kansas City Dist., USACE, Mo. Nationwide Permit Reg’l Conditions (2012) [hereinafter Mo. NWP Reg’l Conditions] (stating under Reg’l Condition 1 (Stream Crossings – General Conditions for Stream Crossings), “a single culvert is encouraged”).
 Mo. NWP Reg’l Conditions, at 1 (stating under Mo. Reg’l Condition 4 (Suitable Material), “[g]enerally, the maximum weight of any piece should not be more than 500 pounds. Gravel and dirt should not exceed 15% of the total fill volume when using broken concrete as fill”).
 FEMA Second Appeal Analysis, City of Gulfport, FEMA-1604-DR-MS, at 3 (Sept. 25, 2012) (determining that design criteria published by the State of Mississippi did not meet the “uniformly applied” condition required by 44 C.F.R. § 206.226(d)(4) because the criteria provided recommendations and allowed for variances in application).
 Specifically, NWP General Condition 2 (Acquatic Life Movements), NWP General Condition 9 (Management of Water Flows), Mo. NWP Regional Condition 1 (Stream Crossings – General Guidelines for Stream Crossings), and Mo. NWP Regional Condition 4 (Suitable Material).
 Public Assistance Guide, FEMA 322, at 101 (June 2007).
 Project designs for PW 382, site 4 (White Road) were not included in the administrative record. However, a USACE description of the predisaster design for this site (“four 36-inch culverts with earthen fill”) corresponds with the items of work approved in PW 382 for site 4 (“four (4) 36 IN x 30 LF CMPs” with “foundation material … base material … and surface aggregate” of varying quantities). See Email from Regulatory Specialist, Kansas City Dist., USACE, to Great River Engineering (June 26, 2015, 15:44 CST) [hereinafter USACE Email, Predisaster Design Review] and Project Worksheet 382, Pulaski County, Version 0 (Apr. 14, 2014). The administrative record included both the predisaster and Applicant-preferred project designs for PW 386, site 4 (White Oak Road).
 USACE Email, Predisaster Design Review, at 1 (stating, with regard to the water crossing structures depicted in the predisaster project designs for PW 382, sites 1-4 and PW 386, site 4 that such structures “would not comply with Nationwide Permit (NWP) General Condition #9 … as the use of earthen material at each of these sites … is not sufficient to withstand expected high flows … [i]n addition to not meeting NWP General Condition #9, the openings within each of the culvert crossings would not meet the minimum sizing requirements specified in the attached ‘Missouri Nationwide Permit Regional Conditions’ and the ‘General Guidelines for Stream Crossings’”).
 The Applicant may consider pursuing technically feasible, cost effective mitigation measures or improved projects for the 10 water crossing sites that were untimely on second appeal; see PA Guide, at 140.