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Second Appeal Brief
PA ID# 007-05C80-00; Maine-Endwell Central School District
PW ID# PW 2542 ; Appeal Timeliness, Improved Project, Environmental Compliance
Conclusion: The Applicant’s second appeal is untimely under 44 C.F.R. § 206.206(c)(2). Moreover, the Applicant constructed a new maintenance facility (Facility) without prior approval from FEMA, and before FEMA completed a National Environmental Policy Act review. Consequently, the work associated with constructing the Facility is ineligible for Public Assistance (PA).
From September 7 to 11, 2011, Tropical Storm Lee caused flooding that damaged the Buildings that housed the Applicant’s maintenance equipment. On September 22, 2011, the Applicant’s Board of Education approved construction of a replacement Facility at a different location, and relied on a 2006 State Environmental Quality Review to determine that the construction would not have a significant impact on the environment. The Applicant asserts it informed FEMA of the plans for the Facility in November 2011, and that FEMA staff advised it to proceed with the project. The Applicant started construction on the Facility in January 2012 and completed it in March 2012. In April 2012, the Applicant sold the Buildings without completing any repairs. In August 2012, FEMA prepared Project Worksheet (PW) 2542 which noted the Applicant had abandoned the Buildings and instead completed new construction. The Applicant refused to sign the PW and FEMA never finalized or awarded funds. On February 6, 2015, FEMA Region II denied Public Assistance (PA) funding, determining: (1) the Facility was ineligible for funding as an improved project because neither the Grantee nor FEMA approved it prior to construction; (2) the Buildings were ineligible for replacement/relocation costs; and (3) the Applicant did not afford FEMA the opportunity to comply with the National Environmental Policy Act (NEPA) nor the National Historic Preservation Act prior to construction. The Applicant appealed, contending: (1) it believed it had approval for the Facility; (2) construction of the Facility was necessitated by an imminent threat and therefore excluded from a NEPA review; and (3) the repair costs for the Buildings exceeded 50 percent of the replacement cost. On July 22, 2016, FEMA Region II’s Regional Administrator denied the Applicant’s appeal. The Applicant appealed the RA’s determination and the Grantee forwarded the Applicant’s second appeal 84 days after receipt.
Authorities and Second Appeals
Stafford Act §§ 316, 403, 406, 423.
42 U.S.C. §§ 4331-4332.
40 C.F.R. § 1506.3.
44 C.F.R. §§ 10.8(c) 206.201(m), 206.203(d)(1), 206.206(c)(2), 206.226.
PA Guide, at 38, 100, 111, 128-129.
Environmental Policy Memo # 3, at 1.
Dept. of Transp., FEMA-4068-DR-FL, at 3; City of Plattsburgh, FEMA-4020-DR-NY, at 4; Borough of Milltown, FEMA-4021-DR-NJ, at 3; Columbus Reg’l. Hosp. v. FEMA, 708 F.3d 893, at 899.
Under 44 C.F.R. § 206.206(c)(2), a grantee has 60 days from the date of receipt to forward an applicant’s appeal to the FEMA RA.
Pursuant to the PA Guide, if the improved project entails changing the location of the facility, FEMA approval must also be obtained prior to construction.
The Stafford Act, as implemented by federal regulation, generally excludes FEMA’s reimbursement of emergency work actions and permanent work actions that restore a facility substantially to its predisaster condition from NEPA review.