Between May 6 and June 17, 2015, severe storms, straight line winds, tornados, and heavy rain caused excessive storm water runoff and flooding resulting in damage throughout Thayer County. As a result, several bridges (Facilities) under control of the Thayer County Road Department (Applicant) suffered damage. FEMA prepared Project Worksheets (PWs) 277, 279, and 283 to repair the Facilities. The Applicant requested scope of work changes to replace the Facilities according to local codes and standards. In response, FEMA issued determination memoranda stating that the codes and standards were not applicable, and the project costs would be capped at the amounts obligated in the PWs. The Applicant submitted first appeals for each PW on January 25, 2018. The Nebraska Emergency Management Agency (Grantee) forwarded the appeals to FEMA on February 21, 2018. FEMA denied the appeals on February 1, 2019, finding that the codes and standards under which the Applicant requested increased funding for facility replacement did not satisfy FEMA’s five regulatory criteria for codes and standards upgrades as the inclusion of a relaxation clause in the code served as a variance and thus, the code was not uniformly applied to all similar types of facilities in the jurisdiction. On second appeal the Applicant maintains that the relaxation clause was never used and does not make the code upgrades optional.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. § 206.226(d).
- PA Guide, at 34.
- Disaster Assistance Policy DAP 9527.4, Construction Codes and Standards, at 2, 5.
- Pulaski Cty., FEMA-4144-DR-MO (Aug. 7, 2017); Clarksville Gas and Water, FEMA-1909-DR-TN (Dec. 30, 2015); Cuyahoga Cty. Dep’t of Pub. Works, FEMA-4098-DR-OH (Jun. 27, 2017), City of Gulfport, FEMA-1604-DR-MS, (Sep. 25, 2012).
- FEMA may fund costs associated with upgrades to facilities because of mandatory code and standard requirements if the code meets all five criteria in 44 C.F.R. § 206.226(d).
- The code contains a variance, but only for instances in which the circumstances would create an undue hardship and make construction not feasible. Therefore, the variance does not make adherence to the code discretionary and the code applies uniformly to all similar types of facilities in the jurisdiction.
The state code’s variance applies only in instances for which the local circumstances would create an undue hardship and make construction infeasible. Therefore, the code is not discretionary, and applies uniformly to all similar types of facilities. As such, the code satisfies all criteria of 44 C.F.R. §206.226(d). Accordingly, the requested upgrade and appealed costs for all three PWs are eligible for PA funding. However, the Applicant must submit actual costs associated with each project, and FEMA will determine whether the costs were reasonable, and therefore, eligible.