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Second Appeal Brief
PA ID# 031-39067-00; Town of Keene
PW ID# 2380; Hazard Mitigation, Improved Project, Predisaster Conditions, Scope of Work
Conclusion: The Town of Keene’s (Applicant) work to extend the east retaining wall of Gulf Brook (Facility) is ineligible for assistance because it did not restore predisaster design and the Applicant did not receive approval from FEMA prior to completion of the work. Similarly, the work is ineligible as a hazard mitigation measure because the work was completed prior to FEMA performing a review of the project for technical feasibility, environmental and historic preservation compliance, and cost effectiveness.
In late summer of 2011, Hurricane Irene inundated the Town of Keene (Applicant) with heavy rains causing Gulf Brook to overflow its banks. The flooding caused the brook’s channel to shift course, and wash away retaining walls and support footings on both sides of the brook. FEMA prepared Project Worksheet (PW) 2380 to document the damage to the 120-foot long retaining wall on the east bank of the brook (Facility), and to a portion of the road above it. The estimated cost of repair was $180,750.00. The PW’s scope of work (SOW) did not identify any hazard mitigation opportunities. Subsequently, the Applicant received a grant from the Natural Resources Conservation Service (NRCS) under the Emergency Watershed Program (EWP) to construct a 350-foot segment of new retaining wall 250 feet upstream from the original Facility. On December 19, 2012, the New York State Division of Homeland Security and Emergency Services (Grantee) forwarded to FEMA a SOW change request from the Applicant to extend the Facility an additional 250 feet upstream to connect with the NRCS funded retaining wall. The Applicant also requested inclusion of the 40-foot long retaining wall on the west bank of the brook in the SOW. The Applicant’s engineering consultant estimated the project to cost $438,000.00. In a letter dated July 18, 2013, FEMA denied the request, concluding that extending the Facility beyond its original length of 120 feet constituted an improved project, which the Applicant would need to specifically request from FEMA. The Applicant appealed FEMA’s denial. In support of the Applicant’s appeal, the Grantee argued: (1) the original PW improperly omitted retaining wall repairs on the west bank of the brook; (2) best engineering practices required the extension of the Facility; and (3) the proposed change to the SOW was agreed upon by all parties in the field. The RA agreed PW 2380 omitted eligible work and partially granted the appeal with respect to the repairs for the west bank retaining wall. However, the RA denied the appeal with respect to extension of the Facility. The RA determined the extension of the east retaining wall was an unauthorized improved project and that the work was not necessary to restore the Facility to its predisaster design. The Applicant appealed the RA’s decision. The Grantee endorsed the appeal and argues: (1) the Facility is vulnerable to future flooding unless extended beyond its original length, and (2) FEMA’s denial is inconsistent with federal regulations regarding hazard mitigation and FEMA should approve the work in question as a hazard mitigation measure.
Authorities and Second Appeals
Stafford Act, 42 U.S.C. § 5172.
44 C.F.R. §§ 13.30(d)(1); 206.201(k), 206.203(d)(1), 206.226(e).
PA Guide, at 79, 110, 111, 115, 125, 140.
RP 9526.1, at 2, 3.
Roseau Cty. Hwy. Dept., FEMA-1288-DR-MN, at 7.
Per 44 C.F.R. § 13.30(d)(1), prior approval is required whenever a revision of the SOW is anticipated.
Pursuant to 44 C.F.R. § 206.203(d)(1) and the PA Guide, FEMA must approve improved projects prior to construction when the project will result in significant changes to the pre-disaster configuration of the facility.
Per RP 9526.1, FEMA must approve proposed hazard mitigation projects prior to funding.
The Grantee previously requested a change in the SOW, which FEMA denied. The Applicant then completed work beyond the approved SOW.
The administrative record does not demonstrate when the Applicant requested either an improved project or hazard mitigation prior to completion of the work. FEMA never approved an improved project or hazard mitigation.