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Second Appeal Brief
PA ID# 107-55893-00; Town of Owego
PW ID# PW 2617; Hazard Mitigation, Scope of Work
Second Appeal: FEMA-4031-DR-NY, Town of Owego, Project Worksheet 2617 – Hazard Mitigation, Scope of Work
Tropical Storm Lee (Lee) caused widespread flooding during the period of September 7–11, 2011, which damaged the Town of Owego’s (Applicant) wastewater treatment plant (WWTP). FEMA wrote Project Worksheet (PW) 2617 to cover the damages to the WWTP Administration Building (Facility). Although the Applicant had not included a Hazard Mitigation Proposal (HMP), it was in the process of developing one. The Applicant submitted a SOW change request (SOW #1), proposing that certain WWTP control equipment be relocated to the second floor. The accompanying engineering report indicated staff relocation would be necessary, though it did not include a formal request for staff relocation funding. FEMA approved SOW #1 and obligated funds accordingly. Subsequently, the Applicant submitted another SOW change request (SOW #2), seeking funding to construct space for the previously-identified staff relocation need. FEMA denied SOW #2, because it was not tied to disaster-related damages and the Applicant had provided insufficient support for its second request. The Applicant appealed, stating that it had not included SOW #2 in SOW #1 because, at the time, it had not found a cost-effective way to do so. Once it found a cost-effective option, it submitted SOW #2 accordingly. The Applicant also noted that FEMA had approved a similar staff relocation for a separate facility that suffered damage from Lee. On first appeal, FEMA found that SOW #2 was cost-effective, but that it was not sufficiently tied to disaster-related damages. On second appeal, the Applicant reiterates its argument that the HMP approved in SOW #1 necessitated some form of staff relocation, and that it only requested funding for SOW #2 once it had a cost-effective method for relocating Facility staff.
Authorities and Second Appeals
- Stafford Act § 406, 42 U.S.C. § 5172
- 44 C.F.R. §§ 206.201(f), 206.226(e)
- FEMA 322, Public Assistance Guide (June 1, 2007)
- FEMA Disaster Assistance Policy (DAP) 9526.1, Hazard Mitigation Funding under Section 406 (Mar. 30, 2010)
- DAP 9526.1 establishes that an applicant must typically perform the work to implement approved hazard mitigation (HM) measures on integral parts of the eligible facility itself.
- Grantees or applicants may use Section 406 grants to fund HM measures, as defined in 44 C.F.R. § 206.201(f), necessary to provide governmental services and functions in areas affected by a major disaster.
- The SOW of an approved HMP should encompass all work necessary to implement the HM measures.
FEMA finds that SOW #2 is necessary work for SOW #1 because the relocation of the Applicant’s staff at the Facility is necessary to accomplish SOW #1, and that the FEMA previously found the expenses to be cost-effective. Accordingly, the appeal is granted.