During the incident period of May 5 – June 22, 2015, severe storms and straight-line winds affected the City of Norman (Subrecipient). The President declared a Major Disaster for the State of Oklahoma (DR-4222-OK) on May 26, 2015. Record-breaking rainfall resulted in flooding that damaged roads and culverts throughout the Subrecipient’s jurisdiction. FEMA developed Project Worksheets (PWs) 1479, 1480, 1481, and 1482 to cover repairs to the roads and culverts at four locations. The Subrecipient completed the work for PW 1479 by November 12, 2015 and completed the work for the other three PWs by May 10, 2016. For PWs 1479, 1481, and 1482, FEMA also included hazard mitigation to cover costs beyond the scope of work needed to bring the locations back to their pre-disaster condition. FEMA obligated Public Assistance (PA) funding for the repairs and hazard mitigation, as Category C: Permanent Work for Roads and Bridges.
During the project formulation period, the Subrecipient proposed to include funding for upgrades that it asserted were mandated due to codes and standards. In consideration of this proposal, FEMA requested that the Subrecipient commission hydrologic & hydraulic (H&H) studies for each of the projects in order to assess the accuracy, feasibility, and cost effectiveness of the proposed upgrades. FEMA issued determination memoranda dated October 24, 2016 and February 9, 2017, which denied certain direct administrative costs (DAC) associated with the four PWs as well as some repair costs for proposed upgrades that the Subrecipient asserted were mandated by codes and standards for PWs 1481 and 1482. FEMA found that the improvements funded under the hazard mitigation proposals in the PWs were sufficient upgrades and that the H&H recommendations proposed by the Subrecipient were not cost effective.
The Subrecipient filed a first appeal on December 22, 2016 opposing FEMA’s obligation of funding associated with the four PWs in question. The Subrecipient claimed that FEMA did not account for costs in the amount of $2,600,000.00, associated with proposed codes and standards upgrades. The State of Oklahoma (Recipient) supported the appeal with a letter dated February 17, 2017 which stated that prior to the commencement of work on the four sites in question, the Subrecipient explained to FEMA that immediate repairs were needed as temporary measures until permanent work could be customized for each site. The Recipient also made the argument that the completed repairs under the current PWs should be redesignated as Category B emergency work and that new PWs should be formulated as Category C permanent work for the proposed codes and standards upgrades.
The Recipient claimed that FEMA erred in writing the four PWs at issue as Category C work for roads and bridges, rather than Category B work for emergency repairs, because the repairs to the culverts were temporary in nature. The Recipient requested changes in the scope of work in the four PWs amounting to $2,625,619.00. The breakdown of the requested amount is provided below:
Total Cost Estimate
Denied Codes and Standards
1479 (Site 11)
Rock Creek Rd. – 168th Ave NE to 180th Ave NE, Reynolds Lake
108th Ave. NE (East) – Indian Hills Rd. to Bethel/Stella Rd.
Rock Creek Rd. (East) – 156th Ave. NE to 168th Ave NE
Post Oak Road, 108th Ave. SE to 120th Ave. SE
FEMA sent two Requests for Information: one on March 21, 2017 and the other on September 7, 2017. FEMA requested information and documentation to support a finding that the codes and standards required the upgrades in question. On March 21, 2017, FEMA specifically asked for a statement explaining whether and why the repairs on the PWs were temporary in nature, and a detailed description of the scope of work and estimated costs required to effect permanent repairs at the sites. Related to the codes and standards, FEMA requested: a copy of all written and adopted local, county, and state codes and standards that were enforced at the time of the disaster; evidence that they have been previously applied; and all correspondence between FEMA and the Subrecipient regarding those requirements.
The Subrecipient responded via letter dated April 19, 2017, stating that the repairs were temporarily completed to ensure that emergency responders and citizens had access to rural areas. The Subrecipient also claimed that because the repairs were temporary, they were not installed to the same standard as the Subrecipient would normally use for permanent repairs. The Subrecipient provided four documents: City of Norman Engineering Design Criteria, City of Norman Standard Specifications and Construction Drawings, City of Norman Comprehensive Land Use Plan, and the City of Norman Floodplain Ordinance to support its assertion that the proposed upgrades are mandated by code. Specifically, the Subrecipient pulled an excerpt from the City of Norman Engineering and Design Criteria, which reads,
A. Construction Materials: Culverts shall be constructed of reinforced concrete or corrugated metal in accordance with Table 5010.1. Other materials may be used on a case by case basis on acceptance by engineer.
B. Sizing Method: Culvert design shall follow the methodology presented in Hydraulic Design of Highway Culverts, Hydraulic Design Series HDS No. 5, FHWA, U.S. Department of Transportation and Drainage Manual, Oklahoma Department of Transportation, 1992.
C. Design Frequency: Minimum design frequency for culverts shall be 50-year. Impact for 100-year shall be calculated and shown.
D. Minimum Size:
1. Pipe Culverts - 450 mm (18") equivalent
2. Box Culverts - no less than 0.9 m (3') in height
The Subrecipient also included a scope of work and cost estimate for the proposed upgrades. The following table includes those cost estimates and the recommended upgrades based on the recommendation of the H&H study to meet the minimum design frequency standard:
Type of Damage
60”x48” arch pipe
Triple – 8’x6’ RCB
24” & 36” round pipes
Quad – 12’x4’ RCB
24” round pipe
Double – 14’x4’ RCB
96” round pipe
Double – 14’x10’ RCB
Additionally, the Subrecipient provided four examples of previous culvert upgrade projects within the city that it asserted were completed in accordance with codes and standards, and provided a list of its other culvert projects under DR-4222. The Subrecipient also described the procedural history of the correspondence and decision-making process involving FEMA throughout the duration of the project, asserting that FEMA advised the Subrecipient that culvert upgrades would be eligible for reimbursement if sized in accordance with city standards. During project formulation, a study performed on the proposed upgrades revealed a potential for negative impacts on downstream properties, therefore FEMA advised the Subrecipient to contact the engineer for alternative solutions. The Subrecipient claims that sometime thereafter, FEMA decided that the repairs made to the culverts under the PWs restored the sites to pre-disaster existing conditions and that the proposed upgrades would not be reimbursed for the project.
On September 7, 2017, FEMA sent a Final Request for Information (Final RFI), this time seeking evidence that stated codes and standards have been uniformly applied to all other drainage and culvert projects. The request specifically asked for a description, location, and installation date of the culvert, whether replacement required engineering design, and whether an H&H study was performed. The Final RFI also sought a list of culvert repairs since 2012, maintenance records validating the use of stated codes and standards, and evidence that, based on 44 Code of Federal Reglations (C.F.R.) § 206.226(d)(4), the Subrecipient’s codes and standards apply uniformly to all similar facilities within its jurisdiction.
The Subrecipient responded on October 6, 2017 with a list of damaged culvert replacement projects since 2012. The Subrecipient explained that its maintenance records are not easily searchable or well documented to validate the codes and standards. Similarly, it explained that its design files for in-house designed culvert repair projects have not been well preserved. The Subrecipient did state that an H&H study is performed for all new projects, but did not provide any of the reports or results from those studies.
FEMA Region VI issued a first appeal decision via letter dated March 26, 2018. FEMA determined that PA funding was provided to return the sites back to their pre-disaster condition and that the additional work proposed by the Subrecipient does not meet the codes and standards criteria under 44 C.F.R. § 206.226(d)(4). Regarding the category of work, FEMA found that the PWs were correctly written as Category C permanent work and not Category B emergency work because there was no immediate threat to life, public health and safety, which required performance of the work completed. PWs 1479, 1481, and 1482 also included funding for hazard mitigation which was included for work that restored the sites beyond pre-disaster condition. Additionally, FEMA stated that pursuant to 44 C.F.R. 206.204(c)(1), emergency work must be completed within six months of the disaster declaration date, and the work in PWs 1480, 1481, and 1482 was completed approximately one year following the disaster declaration date.
Regarding codes and standards, FEMA examined the five prongs of 44 C.F.R. § 206.226(d) in order to determine if the Subrecipient’s proposed upgrades were eligible for reimbursement. FEMA found that the Subrecipient met all but one prong: the requirement that a code or standard must apply uniformly to all similar types of facilities within the owner’s jurisdiction. FEMA reasoned that while the Subrecipient claimed that it was responsible for maintaining the upgrades to culverts within its jurisdiction, the Subrecipient did not submit documentation to explain the maintenance process. It also stated that its records, which would demonstrate that codes and standards have been applied uniformly, were not available due to department record deficiencies. Therefore, FEMA found that the Subrecipient did not meet the codes and standards criteria under 44 C.F.R. § 206.226(d).
As to the issue of DAC, FEMA indicated that the Subrecipient had not appealed the issue of DAC. The first appeal decision indicated that after closeout, the DAC issue would be ripe for adjudication and the Subrecipient reserves the right to bring the issue on first appeal. As such, FEMA denied the first appeal.
On Second Appeal, the Subrecipient asserts that the work in the PWs should be redesignated as Category B emergency protective measures because the roads that were repaired were emergency routes, bus routes, and mail routes, on such a sparse road network system that they could not be kept closed for long without major impacts to the residents and public. It also claims that the weather conditions during repair and installation did not permit proper project completion to the same standard as city crews would use for permanent repairs. With regard to the codes and standards criteria under 44 C.F.R. § 206.226(d), the Subrecipient opposes FEMA’s finding that its codes and standards do not apply uniformly to similar types of facilities within the owner’s jurisdiction. It argues that it provided documentation in the initial request for information to demonstrate how the city uniformly applies its codes and standards to various types of projects. As a result, the Subrecipient believes it meets the standards set in 44 C.F.R. § 206.226(d). Lastly, the Recipient challenges FEMA’s denial of eligibility of DAC for all four PWs.
Emergency work is that which must be performed to reduce or eliminate an immediate threat to life, to protect public health and safety, and to protect improved property that is threatened in a significant way as a result of the disaster. Emergency work must be completed within the six months following a major disaster declaration. Work performed under an exigent circumstance that restores the pre-disaster design and function of the facility in accordance with codes and standards is Permanent Work,not Emergency Work. In addition, the Robert T. Stafford Disaster Relief and Emergency Assistance Act Section 406 authorizes FEMA to provide funding for the addition of hazard mitigation measures to permanent work restoration as a cost-effective action to prevent or reduce the threat of future damage to a facility.
The Subrecipient argued that FEMA should redesignate the current PWs as Category B emergency protective measures and develop new PWs as Category C permanent work for the proposed upgrades. However, the Subrecipient’s argument is without merit. The Subrecipient did not complete work for three of the four PWs on appeal within the regulatory six month timeframe for emergency work and did not request a time extension. Furthermore, the work performed under the current PWs, even if performed under exigent circumstances, restored the culverts to their pre-disaster condition. The projects even included funding for hazard mitigation to improve the function of the culverts to prevent similar damage in the future, such as the addition of rip rap and the installation of additional asphalt and larger culverts. Because Section 406 hazard mitigation is only authorized for the permanent repair of facilities directly damaged by a disaster, FEMA is not authorized to provide 406 hazard mitigation to emergency work. Therefore, FEMA was correct in designating the PWs as Category C permanent work.
Codes and Standards
Costs associated with work that changes the pre-disaster construction design of a facility may be eligible for PA funding if work is done to comply with codes or standards. The code or standard must: (1) apply to the type of repair or restoration required (standards may be different for new construction and repair work); (2) be appropriate to the pre-disaster use of the facility; (3) be found reasonable in writing and formally adopted and implemented by the State or local government on or before the disaster declaration date, or be 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) for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect. All five criteria must be met in order to be eligible for PA funding. On first appeal, FEMA found that the Subrecipient met four out of the five criteria. On second appeal, the Subrecipient disputes FEMA’s finding on the remaining criterion: that the codes were not applied uniformly to all similar types of facilities within its jurisdiction.
Applies Uniformly Across Similar Facilities
In order for FEMA to find that a code or standard applies uniformly across similar facilities, the code or standard cannot allow selective application, it cannot be subject to discretionary enforcement by public officials, it must be applied regardless of the source of funding for the upgrade work, and it cannot be applied selectively based on the availability of funds.
The Subrecipient provided an excerpt from the City of Norman Engineering and Design Criteria to support its request for codes and standards upgrades. The criteria for Culverts provides specifications for construction materials, sizing methodology, minimum design frequency, and minimum sizes. In both RFIs, FEMA requested information from the Subrecipient to demonstrate that these codes and standards were applied uniformly to all drainage and culvert projects within the Subrecipient’s jurisdiction. FEMA requested specific information regarding the size of the damaged culverts and the replacement culverts, location, installation dates, an explanation of the design and materials selection process, and maintenance records validating the use of the codes. In its response, the Subrecipient described an example of a project in which drainage pipes were replaced by two bridges and another in which a small bridge was replaced with a larger bridge. It also described a community development project in which culverts will be “significantly upsized to meet codes,” without specifics on how they will be upgraded (i.e., material, size, or cost). Additionally, it provided an example of a subdivision project in which new developments were constructed “in conformance with city codes,” again without specificity as to location, size, materials, or standards. Lastly, the Subrecipient provided a list of other projects under DR-4222, but the list did not clearly demonstrate that the code had been properly applied to them.
In all of the examples provided, the Subrecipient described the improvements made to other culvert projects within its jurisdiction, but based on the limited information provided, FEMA cannot ascertain whether those improvements were necessary and sufficient to meet the codes and standards. For the PWs in this appeal, the Subrecipient justified the proposed upgrades to the culvert projects with an H&H study which provided a recommendation for the size and materials needed for the new structures to meet the codes and standards. However, it is unclear whether the codes and standards require an H&H study for each new culvert project. The documentation provided for the other culvert projects lacked specific information about size, materials, and design frequency, and did not demonstrate that they complied with the codes and standards. Furthermore, the Subrecipient admitted that its records are not easily searchable or well documented enough to be able to validate the use of codes and standards, and that its design files have not been well preserved. The lack of specificity and documentation provided does not allow FEMA to assess whether the codes or standards have been uniformly applied, and therefore does not meet the required criteria.
Direct Administrative Costs
FEMA on first appeal indicated that the Subrecipient had not appealed the issue of DAC. The first appeal decision indicated that after closeout, the DAC issue would be ripe for adjudication and the Subrecipient would reserve the right to bring the issue on first appeal. The DAC issue must be adjudicated on first appeal before it is brought on second appeal. Therefore, FEMA will not make a new determination on second appeal on the issue of DAC and the Subrecipient reserves the right to submit a first appeal on this issue.
FEMA was correct in designating all PWs as Category C, Permanent Work for Roads and Bridges because the work was not completed to prevent an immediate threat to public health or safety. Additionally, the Subrecipient has not demonstrated that its codes and standards apply to all similar facilities within its jurisdiction; therefore, additional funding for proposed upgrades is not eligible. Accordingly, the second appeal is denied.
 FEMA obligated PWs 1479, 1480, and 1481 on November 16, 2016, and PW 1482 on February 23, 2017.
 The Subrecipient is actually appealing $2,625,619 which is a total of all costs related to codes and standards upgrades for the four PWs that the Subrecipient provided FEMA in response to a request for information. Additionally, the Subrecipient appealed FEMA’s obligation of PW 1482 prior to the issuance of the determination memo.
 There is a typographical error in the Grantee’s claim of $849,000.00 for PW 1482 on first appeal. The Subrecipient actually claimed $849,230.00 for PW 1482 in its response to FEMA’s Request for Information.
 The Subrecipient claimed $849,230.00 for PW 1482 in its response to FEMA’s Request for Information. There is a typographical error in the Grantee’s claim of $849,000.00 for PW 1482 on first appeal.
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(d) (2014). This regulation will be discussed later in the analysis, and states that to be eligible for reimbursement, a code or standard must: (1) apply to the type of repair or restoration required (standards may be different for new construction and repair work); (2) be appropriate to the pre-disaster use of the facility; (3) be found reasonable in writing and formally adopted and implemented by the State or local government on or before the disaster declaration date, or be 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) for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.
 Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403, 42 U.S.C. § 5170(b) (2012); 44 C.F.R. § 206.201(b); Public Assistance Guide, FEMA 322, at 66 (June 2007) [hereinafter PA Guide].
 44 C.F.R. § 206.204(c)(1)..
 Stafford Act § 406(c)(1)(B)(iii), 42 U.S.C. § 5172(c)(1)(B)(iii); PA Guide, at 124; Disaster Assistance Policy DAP 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act), at 1 (July 20, 2007).
 Stafford Act § 406(e)(1)(A)(ii); 44 C.F.R. § 206.226(d).
 FEMA Disaster Assistance Policy 9527.4, Construction Codes and Standards (February 5, 2008).
 For the purpose of this anaylsis, FEMA will make a determination only on the criterion that the Subrecipient has based its objections on.