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Second Appeal Brief
PA ID# 053-UJY1X-00; Decatur County Secondary Roads
PW ID# (PW) 84 ; Scope of Work – Improved Project – Direct Result of Disaster
Between June 3 and 4, 2014, heavy rainfall impacted various counties throughout Iowa. Severe flooding occurred, and paired with debris carried by the floods, caused damage to property owned and operated by the Applicant. On November 20, 2014, FEMA approved Project Worksheet (PW) 84 in the amount of $196,400.00 for work to replace multi-plate arch culverts at four locations and remove/reinstall corrugated metal pipe (CMP) culverts at two locations through the reuse of undamaged pipes. On October 12, 2017, FEMA issued a determination memorandum advising the Applicant that all the work it completed under PW 84 was ineligible for funding. FEMA determined that the Applicant changed the approved scope of work (SOW) without proper notification, as it had installed CMP culverts in place of the predisaster culverts at four locations, and had installed new CMP culverts at two locations rather than reusing the existing CMPs. Moreover, FEMA found that the Applicant had failed to demonstrate that the claimed damages were a direct result of the disaster. The Applicant appealed on October 27, 2017, requesting $302,585.12 in costs. The Grantee supported the Applicant’s appeal with its own analysis and offered a new argument that if FEMA found the SOW to be changed, that FEMA consider the project an improved project and obligate the original funding amount. FEMA Region VII’s Regional Administrator (RA) issued the first appeal determination on June 22, 2018, denying all costs. The RA determined that the Applicant did not get prior approval to change the SOW nor prior approval for an improved project. Further, the RA concluded that there was insufficient documentation to show that the work was required as a direct result of the disaster and to demonstrate the predisaster condition of the culverts. On second appeal, the Applicant argues that it did not expand the SOW by altering the materials used in the project and that the documents it provided were enough to demonstrate that the damage was a direct result of the disaster.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 13.30, 13.43, 206.203, 206.206,
- PA Guide, at 29, 33, 79, 110, 111, 127, 128, 140.
- Mo. Dep’t of Natural Res., FEMA-4012-DR-MO, at 4-5.
- Vill. of Waterford, FEMA-4020-DR-NY, at 3.
- Plymouth Twp., FEMA-4030-Dr-PA, at 6-7.
- Clean Water Act §§ 1251-1387.
- Under 44 C.F.R. § 13.30(d)(1), applicants or grantees must obtain prior approval from FEMA to revise a project’s SOW.
- The Applicant did not submit a request to FEMA change the SOW before performing the work.
- The PA Guide at 111 requires an Applicant to obtain prior approval for an improved project.
- The Applicant did not submit a request for an improved project before performing the work.
The Applicant changed the SOW by failing to return the culverts to the predisaster condition and did not receive prior approval from FEMA for that change, nor submit a request for an improved project before the work was