From August 26 to September 5, 2011, Hurricane Irene caused catastrophic flooding in the Town of Warwick, New York (Applicant). As a result, the Ackerman Road culvert cracked in several places, a portion of the concrete broke off, and a portion of the roadway peeled back. The Applicant applied for Public Assistance (PA) funding. FEMA awarded $78,889.00 in Project Worksheet (PW) 7243 to reimburse costs associated with removing and replacing the damaged culvert. The original culvert was a 4 x 4 foot concrete box culvert, and the PW’s scope of work (SOW) called for constructing a 5 x 5 x 32 foot pre-cast, three-sided replacement culvert. The Applicant completed the project in October 2014, and on February 9, 2017, the Grantee submitted a Large Project Final Accounting, recommending reimbursement of $395,886.60. The Applicant emphasized that the SOW in the PW was insufficient due to re-location of a high-pressure gas main, unforeseen at the time FEMA wrote the PW, which required a more complex culvert design. FEMA asked the Applicant to resubmit the request, noting that the completed replacement culvert was outside the approved SOW and that FEMA had not received a SOW change request. In addition, FEMA stated that it did not receive documentation showing that the Applicant had formally adopted New York State Department of Transportation (NYSDOT) codes and standards related to the culvert design. The Applicant submitted a SOW change request dated May 11, 2017, arguing that the culvert upgrade was necessary due to deficiencies in PW 7243, but FEMA denied the request again. The Applicant submitted its first appeal in a letter dated December 12, 2017, renewing its arguments that the PW’s SOW was inadequate, and arguing that the Warwick Town Code and New York State specifications required the upgrades. The Grantee forwarded the Applicant’s first appeal and submitted a memorandum also arguing that the SOW change was required by codes and standards. The FEMA Region II Regional Administrator (RA) issued his first appeal determination on June 8, 2018, finding that the Applicant did not demonstrate that a code or standard required the upgrades to the culvert. The Applicant and Grantee submitted second appeal letters dated August 9 and September 12, 2018, respectively, renewing their arguments from first appeal, and also arguing that the upgrades were required to obtain necessary permits. FEMA is denying the second appeal because the Applicant did not obtain approval from FEMA prior to making the changes to the SOW, and furthermore, the Applicant has not demonstrated that the upgrades were required by codes or standards.
Authorities and Second Appeals
- Stafford Act § 406(e).
- 44 C.F.R. §§ 13.30, 13.36, 13.43, 206.202(d)(1), 206.226(d).
- FEMA Disaster Assistance Policy 9527.4, Construction Codes and Standards (Feb. 5, 2008).
- Public Assistance Guide, FEMA 322, at 100, 101, 140 (June 2007).
- FEMA Second Appeal Analysis, Dep’t of Envtl. Prot., at 4 (Feb. 28, 2018); FEMA Second Appeal Analysis, Pulaski Cty., FEMA-4144-DR-MO, at 5-6 (Aug. 7, 2017); FEMA Second Appeal Analysis, Essex Cty., FEMA-4020-DR-NY, at 4-6 (Aug. 18, 2016).
- 44 C.F.R. § 13.30(d)(1), provides that whenever there is a revision of the scope or objective of the project, applicants or grantees must obtain prior approval from FEMA.
- The Applicant did not receive approval from FEMA prior to making the changes to original SOW.
- Per 44 C.F.R. § 206.226(d), FEMA may reimburse costs of repair or replacement codes or standards if the codes or standards: 1) apply to the type of repair or restoration required; 2) are appropriate to the pre-disaster use of the facility; 3) are reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date or are 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) were enforced during the time the standards were in effect.
- The specifications in the Applicant’s Town Code were not applied and enforced uniformly, because the Town Code provides for discretionary enforcement by the Town Commissioner.
The Applicant did not obtain approval from FEMA prior to making the changes to the approved SOW. In addition, the Applicant has not demonstrated that the upgrades to the culvert were required by codes and standards.