Between April 28 and May 3, 2014, tornadoes and straight-line winds caused widespread damage throughout Mississippi, including property owned by the Winston County Board of Supervisors (Applicant). As a result of the incident, FEMA prepared Project Worksheets (PWs) 102, 106, and 127, to repair and replace buildings owned by the Applicant. On January 26, 2015, the Applicant submitted a request for an Alternate Procedures project in accordance with the Public Assistance Alternative Procedures Pilot Program Guide for Permanent Work (PAAP Pilot Program Guide for Permanent Work). The Applicant sought to combine the PWs into one consolidated Alternate Procedures project, which FEMA granted in a letter dated February 20, 2015. Subsequently, the Applicant submitted a request to use excess funds from the consolidated project for new projects, including repairing three roads and acquiring a building to serve as an emergency command center. FEMA denied the request for $1,615,670.00 in excess funds, stating that the Applicant’s request to expand the SOW must occur within one year of the disaster date and the request was outside this timeframe. Additionally, FEMA noted that that the proposed projects did not fall into the eligible categories for work with excess funds. The Applicant appealed, stating that it was not seeking to amend the SOW, but use the excess funds on new projects as allowed by the PAAP Pilot Program Guide for Permanent Work. The Regional Administrator (RA) denied the appeal because the Applicant requested to use the excess funds before all work was completed on the consolidated project; therefore, the request was premature. The RA also noted that even if the excess funds were available for use, the Applicant’s proposed projects were not eligible under the policy for use of excess funds. On second appeal, the Applicant requests that FEMA allow it to use the excess funds in advance of the PAAP Pilot Program Guide for Permanent Work timeline. The Applicant also seeks a determination as to whether the proposed projects are eligible for funding with the excess funds.
Authorities and Second Appeals
- Public Assistance Alternative Procedures Pilot Program Guide for Permanent Work, at 9-13 (December 19, 2013).
- The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 428.
- Public Assistance Guide, FEMA at 66, 73, 79 (June 2007).
- Recovery Policy 9526.1, Hazard Mitigation Funding under Section 406 (Stafford Act) (Mar. 30, 2010).
- FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-FL, at 5 (Aug 5, 2016).
- The Public Assistance Alternative Procedures Pilot Program requires all work to be completed on a project before an applicant can request to use excess funds.
- The Applicant cannot use the excess funds because it only completed work on one of the projects, not the entire consolidated project, before requesting to use the excess funds on new unrelated projects.
- The Public Assistance Alternative Procedures Pilot Program requires applicants to certify final costs within 90 days of project completion, and submit a scope of work and project timeline for the proposed projects using excess funds.
- The Applicant did not complete all work and therefore could not have submitted its certified costs for all work and did not submit a proposed project timeline.
The Winston County Board of Supervisors requested to use excess funds from its consolidated PW before it completed all work on the project. Because the Applicant had not completed all the work on the project, it could not certify the final costs for the project. As such, the amount of excess funds was unknown at the time of request and therefore, the request was premature. FEMA cannot grant use of these funds in advance of the policy timeframe and therefore, the appeal is denied. Additionally, because the Applicant requested to use the excess funds prematurely, the substantive issues of proposed project eligibility are not yet ripe and FEMA cannot make a determination on these questions.