Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 011-74195-00 ; Sundance
PW ID# ( PW) 181 ; Scope of Work, Improved Project, Environmental Compliance
Conclusion: The City of Sundance, Wyoming (Applicant) did not receive prior approval from FEMA before changing the scope of work (SOW) in Project Worksheet (PW) 181. In addition, the Applicant did not afford FEMA the opportunity to comply with federal environmental and historic preservation (EHP) requirements. Accordingly, the appeal is denied.
From May 18 through July 8, 2011, severe storms and heavy rains caused flooding throughout the state of Wyoming. The Applicant’s Cole Water Storage Tank (water tank) shifted due to excessive moisture saturating the soils around the water tank. FEMA prepared PW 181 to document work to stabilize the site of the water tank. In 2014, after consultation with its engineers, the Applicant determined the foundation of the water tank was unstable and moved it to a new location. In 2016, after completion of the work, the Applicant submitted an improved project request to the Wyoming Office of Homeland Security (Grantee). The Grantee forwarded to FEMA, who denied the request because the Applicant failed to receive approval prior to changing the SOW and also because FEMA did not have the opportunity to conduct the necessary environmental and historic preservation (EHP) reviews. As such, FEMA deobligated all funding. The Applicant appealed claiming it was not aware of the requirement to notify the Grantee that it was relocating the water tank. FEMA Region VIII Regional Administrator denied the appeal, finding that federal regulations required the Applicant to obtain the prior approval of FEMA when revising the SOW. The Applicant did not demonstrate that it requested a SOW change or an improved project designation prior to moving the water tank. In addition, FEMA did not have the opportunity to conduct the required EHP reviews prior to the work being completed. The Applicant again appeals, reiterates its prior arguments, and also contends that FEMA has conducted after-the-fact EHP reviews and could do so in this instance.
Authorities and Second Appeals
Stafford Act §§ 316, 406.
44 C.F.R. §§ 10.8, 13.30(d)(l), 13.43, 206.203.
40 C.F.R. § 1508.4
PA Guide, at 110-111, 127-131, 140.
FEMA Instruction 108-1-1, Instruction of Implementation of the Environmental Planning and Historic Preservation Responsibilities.
Roseau Cty. Hwy. Dept., FEMA-1288-DR-MN, at 7.
Town of Rapidan, FEMA-1941-DR-MN, at 4.
Village of Paradeeville, FEMA-1768-DR-WI, at 3.
Under 44 C.F.R. § 13.30(d)(1), applicants must obtain the prior approval of FEMA whenever any revision of the scope or objectives of the project is anticipated. In addition, the PA Guide states that an applicant should notify the grantee as soon as possible when a change in the SOW is discovered so it can forward it to FEMA.
44 C.F.R. § 206.203(d)(1) and the PA Guide require an applicant to obtain approval for an improved project prior to the start of construction where it will result in a significant change from the predisaster location, design, and footprint.