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Second Appeal Analysis
PA ID# 071-78366-00; Town of Warwick
PW ID# Project Worksheet 7243 ; Scope of Work – Codes and Standards
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 and as a result, 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 scope of work (SOW) called for constructing a 5 x 5 x 32 foot pre-cast, three-sided replacement culvert “as required by [the New York State Department of Environmental Conservation (NYSDEC)].”
The Applicant completed the project in October 2014, and on February 9, 2017, the New York State Division of Homeland Security and Emergency Services (Grantee) submitted a Large Project Final Accounting on behalf of the Applicant, recommending reimbursement of $395,886.60. In its attached Final Inspection Report (FIR), the Grantee 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. The Grantee also stated that “[hazard mitigation] opportunities were not realized” because the PW did not include mitigation, given that it improperly categorized the work as emergency work. Instead, the Grantee stated that, “in [the writer’s] opinion mitigation measures were realized by best construction practices and by applying current codes and standards.”
The FIR also referenced a May 18, 2015 letter from the Applicant to the Grantee. In the letter, the engineer explained the deviations from the approved SOW. In February 2013, the local utility company notified the Applicant of a high-pressure gas main under the streambed that could not be relocated. Design plans for the culvert were completed in August 2013 and accommodated the gas main. However, after the Applicant awarded the construction contract, the contractor felt the gas main by feeling around the stream with his hand. The utility company then confirmed that its earlier report that the gas main was six feet deeper than the streambed was incorrect. As a result, the engineer needed to re-design the plans for the culvert because the gas main now needed to be relocated so as not to conflict with the pre-cast concrete that was already being manufactured for the culvert. Moving the gas main could not start until after the heating season, which allowed for the engineering firm and the utility company to engage in “additional engineering design, coordination, site inspections, meetings, drawing revisions, emails, and phone calls.” Relocating the gas main took place between July 1 and August 11, 2014, and then the contractor began constructing the new culvert.
The letter also stated that the “project remained true to the scope of work of the PW[,] but the PW did not take into account the complexity of this culvert replacement.” The Applicant listed the factors that led to the increased costs and changes to the SOW: the relocation of the gas main, including design and coordination time, additional excavation, expanded work area, and additional installation of pavement; use of New York State Department of Transportation (NYSDOT)-certified concrete to satisfy the Town of Warwick Town Code; longer guiderails to comply with NYSDOT safety requirements; time involved to check the status of all environmental permits due to the delays in the project; the PW called for a three-sided culvert, but a four-sided box needed to be installed because of the location of the gas main; soil borings also required deeper footings; and finally, the width of the culvert’s opening needed to be ten feet instead of five feet, according to a hydrology and hydraulic report’s findings.
FEMA responded in a letter stating that it did not have sufficient information to process the request for additional funding, and also 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 NYSDOT codes and standards related to the culvert design. Consequently, FEMA requested that the Grantee re-submit the request with additional documentation that supported the Applicant’s position.
The Applicant submitted a SOW change request dated May 11, 2017, arguing that the culvert upgrade was necessary due to deficiencies in PW 7243. The Applicant stated that it had assumed incorrectly that statements in the PW, such as, “as required by the Town’s construction standards for new drainage construction,” and “along roadside to meet existing codes” would grant engineers leeway to use soil test results, hydraulic analysis, and current codes for guardrail installation to design the replacement structure correctly. FEMA denied the SOW change request in a letter dated October 31, 2017, stating that the completed culvert exceeded the SOW and “significantly changed the pre-disaster design of the culvert.” In addition, FEMA determined that the Applicant had not demonstrated that that the upgrades were required by codes and standards.
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 NYSDOT specifications, specifically, the NYSDOT’s Bridge Manual and Highway Design Manual, required the upgrades made to the culvert. The Grantee forwarded the Applicant’s first appeal and submitted a memorandum arguing that the Warwick Town Code and the engineer’s hydrologic and hydraulic analysis demonstrated that the SOW change was required by codes and standards. In addition, the Grantee argued that the NYSDEC and the U.S. Army Corps of Engineers (USACE) adopted a 1.25 streambed width criterion for culvert design by posting it on its website as of December 12, 2008, years before the declared disaster, and that the Applicant was required to follow that specification. The Grantee also attached plans for another project where NYSDOT and NYSDEC criteria were applied, but acknowledged that the project did not receive federal assistance. Finally, the Grantee argued that the upgrades to the culvert project were triggered by codes and standards that satisfied all requirements under Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(d).
FEMA issued a Final Request for Information (RFI), in which it noted that the record did not demonstrate that the project was within the SOW, nor that the changes were required by codes and standards. In addition, FEMA requested documentation showing that the Grantee or Applicant formally adopted, prior to the disaster, the NYSDOT Bridge Manual or any other code or standard requiring a larger culvert or specific culvert size. The Applicant responded and submitted various excerpts of its Town Code, the Bridge and Highway Design Manuals, and the engineer’s design plans and hydrology analysis for the project. The Applicant argued that language in its Town Code and in the Bridge and Highway Design Manuals met FEMA’s qualifications of eligible code-mandated upgrades. In addition, the Applicant argued that its board adopted certain street specifications in its municipal code prior to the disaster. Moreover, the Applicant contended that another project was designed according to NYSDOT specifications, which demonstrated uniform application throughout the jurisdiction.
The Regional Administrator (RA) for FEMA Region II 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 provided various sections of the Warwick Town Code, which cited NYSDOT requirements for certain materials, but did not include culvert size or guiderail specifications. In addition, the cited provisions did not mandate compliance with NYSDOT guidance. Furthermore, the RA noted that the Bridge Manual applies only to bridges that NYSDOT owns and operates or that are constructed under NYSDOT contracts, but the Applicant had not demonstrated that the project met either criterion. Finally, the RA found that the Applicant did not show that the 1.25 streambed width criteria was a formally adopted code or standard.
The Applicant submitted its second appeal in a letter dated August 9, 2018. The Applicant argued that it relied on a November 1, 2013 letter from the Grantee to FEMA, because the letter listed criteria for obtaining a NYSDEC Article 15 permit. In addition, the Applicant argued that a hydrologic and hydraulic study determined that a wider culvert was appropriate. Moreover, the Applicant argued that professional engineers and other jurisdictions used NYSDOT standards in designing guiderails, and that the PW’s SOW pertaining to guiderail length was inadequate.
The Grantee transferred the appeal to FEMA, as well as its own memorandum. The Grantee admits that the “designed replacement culvert project exceeded the PW’s original SOW, but it followed the requirement of the Warwick Town Code,” which qualified as a code or standard because section A168-12 provides that “culverts shall be designed in accordance with established engineering principles.” In addition, the Grantee argues that design and construction standards were incorporated by reference in New York’s Environmental Conservation Law and implementing regulations, and therefore, the Applicant needed to comply with them. Likewise, the Grantee argues that per FEMA’s EHP review, the Applicant needed to comply with any required permits; thus, the Applicant needed to comply with the plans it had submitted to obtain the NYSDEC Article 15 permit. The Grantee also argues that FEMA accepted the 1.25 times streambed width as a standard in PW 242, for Town of Jay, as well as PW 167, for Town of Saranac, and should also do so here. Moreover, the Grantee contends that even though the PW did not provide for hazard mitigation measures, the wingwalls and riprap amounted to appropriate mitigation. Finally, the Grantee recommends that FEMA have a Professional Engineer licensed in New York review the design criteria to determine if the SOW changes were necessary, and also recommends that FEMA follow 44 C.F.R. § 206.400(c), which provides that the RA may, after consultation with state and local officials, require use of safe construction practices in the course of repair and construction activities.
Scope of Work
PWs must identify and describe an eligible SOW completely, including a “quantitative estimate for the eligible work.” Whenever there is a revision of the scope or objective of the project, applicants or grantees must obtain prior approval from FEMA. Applicants should notify the grantee about the need for a change in the SOW as soon as possible, and not assume that it can report such unapproved costs at the end of the project and that FEMA will award the funds automatically. The Grantee then forwards the request to FEMA, along with a written recommendation, and the timing of the request should allow for FEMA’s inspection prior to repairs. “This is true regardless of the reason necessitating the change (e.g., hidden damage discovered, improved project, alternate project, or general scope change) because it allows FEMA to carry out related functions such as additional environmental and historic preservation compliance reviews.” If a grantee or applicant “materially fails to comply with any term of an award,” FEMA may disallow all or part of the cost of action not in compliance, or wholly or partly suspend or terminate the current award for the program.
The Grantee acknowledged in the FIR that the completed culvert exceeded the SOW in the approved PW and the Grantee acknowledged the same in its second appeal submission. However, the Applicant stated that it had assumed incorrectly that language in the PW would grant engineers leeway to use soil test results, hydraulic analysis, and current codes for guardrail installation to design the replacement structure according to NYSDOT codes and standards. The Applicant maintains the following language in the PW allowed for the replacement culvert that it ultimately constructed: “[f]urnish and install new 5 foot x 8 foot x 1 foot reinforced concrete wingwalls, as required by the Town’s construction standards for new drainage construction,” and “[f]urnish and install two 20 linear feet guardrails along road side to meet existing codes.” However, this language does not justify the Applicant’s position; rather, the language qualifies the specific size and type of wingwalls and guiderails, and is not a blanket statement to design the culvert as the Applicant determines is appropriate to meet codes and standards. Moreover, the approved SOW called for a pre-cast, three-sided culvert (5 feet x 5 feet x 32 feet), and instead, the Applicant built a reinforced concrete four-sided culvert, 5 feet high and 10 feet wide, and never received approval for such changes.
The record also demonstrates that the Applicant made these changes not solely because of codes and standards, but because of the high-pressure gas main that the Applicant needed to relocate. That change alone should have been enough for the Applicant and Grantee to notify FEMA, given that it led to additional excavation, design, and delay. The Applicant and Grantee had significant time to notify FEMA, as the project was put on hold from the time the gas-main issue was discovered in August 2013, until the time excavation began in July 2014, nearly a full year. As FEMA noted in its Essex County second appeal decision, although the Applicant is free to construct the culvert as it sees fit, “the Stafford Act and federal regulation prohibit FEMA from awarding PA funding without prior approval from FEMA and the proper EHP compliance reviews.” Thus, FEMA was within its discretionary authority to deny the request for additional funding.
Codes and Standards
Section 406(e) of the Stafford Act authorizes FEMA to provide Federal assistance to a local government for the repair, restoration, or replacement of a facility damaged by a declared disaster, in conformity with codes, specifications, and standards applicable at the time the disaster occurred. FEMA may reimburse costs of Federal, state and local 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 owner of the facility; and 5) were enforced during the time the standards were in effect. FEMA has the authority to determine which repairs, code-mandated or otherwise, are eligible for assistance, and generally does not fund code-mandated work that does not meet all five criteria, regardless of whether the work is needed to obtain a building, occupancy, environmental, or other permit. Finally, for FEMA to find that the code was enforced during the time it was in effect, “the code cannot be subject to discretionary enforcement by building or permitting officials; it must provide for uniform accountability in the event of noncompliance.”
On second appeal, the Applicant and Grantee argue that the upgrades to the culvert were required by NYSDOT and NYSDEC codes and standards, and that the Applicant’s Town Code had adopted requirements outlined in the NYSDOT Bridge and Highway Design Manuals. Both the Applicant and the Grantee also argue that one of the upgrades, utilizing the 1.25 streambed width, was necessary to obtain USACE and NYSDEC permits. However, even if the streambed width was required for a USACE or NYSDEC permit, the need for a permit does not make an upgrade eligible for FEMA funding if all requirements of 44 C.F.R. § 206.226(d) are not met, as is the case here.
As support for its argument, the Grantee cites PWs 167 and 242 from DR-4129 to show that FEMA accepted the 1.25 times streambed width as a standard. Yet as PW 167 for Town of Saranac states, FEMA acknowledged that the streambed width was a recommendation only, but the agency would accept it as a standard for DR-4129, specifically. In addition, the Applicant cites to the November 1, 2013 letter from NYSDEC to FEMA in which a NYSDEC biologist stated what is required to obtain an Article 15 permit. While the biologist states that the requirements “must” be followed to obtain the streambed permit, the letter goes on to list broad guidelines that contain discretionary language. Although the Grantee emphasizes that a condition of the Article 15 permit was to adhere to the design plans that the Applicant submitted, this does not demonstrate that the design specifications were necessary to obtain the permit. Indeed, the Applicant and the Grantee have not demonstrated how the design would have qualified for the permit, while the original plans would not have. Furthermore, while the Grantee states that the 1.25 streambed width was posted on the NYSDOT website in 2008, the RA correctly determined that this would not be enough to constitute formal adoption under 44 C.F.R. § 206.226(d)(3).
The Town Code and NYSDOT Bridge Manual requirements also do not satisfy FEMA’s regulatory requirements. First, section A168-22 of the Town Code states:
[T]he interpretation of any part of these street specifications shall rest with the Town Commissioner of Public Works. He shall have the authority to modify the requirements of these specifications when in his opinion conditions make it impracticable to follow the strict letter of these specifications or when conditions make it unnecessary to do so.
This language demonstrates that the Town Code is subject to discretionary interpretation and enforcement, which does not satisfy the requirements of 44 C.F.R. § 206.226(d). Second, as the RA noted on first appeal, the NYSDOT Bridge Manual applies only to bridges owned by or under contract with NYSDOT, and the Applicant has not demonstrated that the culvert qualified as such. Thus, the RA correctly determined that neither the Town Code, nor the NYSDOT Manuals, nor the NYSDEC specifications, satisfied all five prongs of 44 C.F.R. § 206.226(d). Furthermore, even if the Applicant had demonstrated that codes and standards required the changes, FEMA had no opportunity to conduct the required EHP reviews, given that the Applicant did not submit a SOW change request prior to constructing the upgraded culvert. Therefore, the additional requested funding still would have been ineligible.
The Applicant did not obtain approval from FEMA prior to making the changes in the approved SOW. In addition, the Applicant has not demonstrated that the upgrades to the culvert were required by codes and standards. Accordingly, the second appeal is denied.
 Project Worksheet (PW) 7243, Town of Warwick, Version 0 (Oct. 16, 2012). This appears to be in reference to a February 27, 2012 letter from the NYSDEC to FEMA, recommending a three-sided culvert. However, the subject of the letter was for another road project in the same disaster.
 Final Inspection Report, at 2. The PW was written for Category C work, but the Environmental and Historic Preservation (EHP) review referred to it as emergency work.
 Letter from Comm’r, Dep’t of Pub. Works, Town of Warwick, and P.E., HDR Eng’g, Inc., to N.Y. State Div. of Homeland Sec. and Emergency Serv. (NYDHSES), at 1-2 (May 18, 2015).
 Letter from Section Chief, Recovery Div., FEMA Region II, to Deputy Comm’r, NYDHSES, at 1-2 (Apr. 5, 2017).
 Letter from Dep’t of Pub. Works Comm’r, Town of Warwick, to Representative, NYDHSES, at 1-2 (May 11, 2017).
 Letter from Acting Pub. Assistance Branch Chief, Recovery Div., FEMA Region II, to Deputy Comm’r, NYDHSES, and to Dep’t of Pub. Works Comm’r, Town of Warwick, at 2 (Oct. 31, 2017).
 Id. FEMA also noted that the Applicant had not submitted any relevant materials that would support its position, as FEMA had requested in its April 5, 2017 letter. The Grantee sent a letter to FEMA dated November 16, 2017, and stamped as received on November 21, 2017. The body of the letter indicates that the Grantee was responding to FEMA’s April 5, 2017 letter requesting more information about the Large Project Final Accounting. It also appears that the attachments listed as enclosed in the November 16 letter are the same attachments the Applicant included with its first appeal letter.
 This regulation authorizes FEMA to provide funding for upgrades triggered by codes and standards that meet all five conditions outlined in the regulation’s subsections.
 Letter from Pub. Assistance Branch Chief, Recovery Div., FEMA Region II, to Deputy Comm’r, NYDHSES, and to Supervisor, Town of Warwick, at 1-2 (Feb. 27, 2018).
 Letter from Reg’l Adm’r, FEMA Region II, to Deputy Comm’r, NYDHSES, and Supervisor, Town of Warwick, at 1 (June 8, 2018).
 Letter from Biologist I, NYSDEC, to FEMA, at 1-2 (Nov. 1, 2013). The Applicant stated that the letter was in response to a FEMA inquiry seeking information about which standards would apply to any NYSDEC Article 15 permit.
 Memorandum from NYSDHSES DAR, to NYSDHSES Disaster Assistance Mgr., at 2 (Sept. 4, 2018).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(d)(1)(i) (2010); Public Assistance Guide, FEMA 322, at 101 (June 2007) [hereinafter PA Guide].
 44 C.F.R. § 206.202(d)(1)(i).
 44 C.F.R. § 13.30(d)(1).
 FEMA Second Appeal Analysis, Dep’t of Envtl. Prot., FEMA-4086-DR-NJ, at 4 (Feb. 28, 2018) (citing PA Guide, at 140).
 FEMA Second Appeal Analysis, Essex Cty., FEMA-4020-DR-NY, at 5 (Aug. 18, 2016).
 See 44 C.F.R. § 13.43(a)(2)–(3).
 Essex Cty., FEMA-4020-DR-NY, at 6.
 While the Grantee argues on second appeal (and stated in its FIR) that the upgrades amounted to hazard mitigation measures, neither the Applicant nor the Grantee submitted a hazard mitigation proposal to FEMA, nor does the record demonstrate that either requested FEMA review the project again for possible mitigation measures.
 FEMA Second Appeal Analysis, Pulaski Cty., FEMA-4144-DR-MO, at 5 (Aug. 7, 2017).
 44 C.F.R. § 206.226(d).
 Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, at 3 (Feb. 5, 2008).
 Project Worksheet 167, Town of Saranac, Version 1 (July 8, 2016) (“The Applicant is requesting a scope of work change that includes mitigation, to alter the in-kind replacement of the culverts to concrete box culverts with wing walls based on hydrologic analysis and the [NYSDEC] and [USACE] codes and standards. A component of the permit process to replace these culverts is to meet NYSDEC and USACE recommendations of 1.25 times the bank to bank stream width. Though this [is] a recommendation by these agencies, it is accepted by FEMA as a Code & Standard in DR-4129-NY.”). The PWs the Grantee cited are distinguishable from this case. In PW 167, FEMA noted that the Applicant was awaiting hydrology reports that could lead to a change in the design estimate in the SOW. In PW 242, the Applicant provided hydrology reports at the time of project formulation that led to a change in the width of the culvert. Here, the Applicant did not submit a hydrology report to FEMA until years after the project was completed.
 For example, to obtain an Article 15 permit, the letter states that “pre-installation stream conditions should be retained to the maximum extent possible;” “the overall culvert capacity should be able to accommodate expected high flows;” and “the width of the structure should be 1.25 times the width of the stream bed.” In closing, the letter states that a “bottomless structure is always preferred.” Letter from Biologist I, NYSDEC, to Representative, FEMA, at 1 (Nov. 1, 2013).
 DAP 9527.4, at 4, provides that “‘formally adopted’” requires that all the requisite steps and actions have been taken by the appropriate legislative body or regulatory authority within the jurisdiction . . . [and] must be formally incorporated into the building code of the local ordinance. . . . A code will be considered implemented when approved by the appropriate legislative body of the jurisdiction and made a matter of public record as required by that body.”
 Both the Applicant and the Grantee argue that additional NYSDEC standards required the upgrades to the culvert. However, neither the Applicant nor the Grantee submitted documentation supporting these arguments, which were made for the first time on second appeal.