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Second Appeal Brief
PA ID# 021-37685-00; Town of Killington
PW ID# PW 3076; Scope of Work – Historic Preservation – 705(c)
From August 27 to September 2, 2011, Tropical Storm Irene caused flooding in the Town of Killington, Vermont (Applicant). The floodwaters damaged the Applicant’s culvert beyond repair. FEMA prepared Project Worksheet (PW) 3076, which provided for an in-kind replacement culvert. Instead, the Applicant built a bridge at the same location, and submitted a closeout request on August 13, 2015. On February 8, 2018, the FEMA Region I Disaster Recovery Manager issued a Determination Memorandum, deobligating all funding because the Applicant changed the scope of work (SOW) without prior approval from FEMA, preventing FEMA from conducting the necessary Environmental and Historic Preservation (EHP) reviews. The Applicant appealed and the RA denied the first appeal for the same reasons as the determination memorandum. The Regional Administrator also stated that Stafford Act section 705(c) did not bar recovery because the purpose of the grant was not accomplished. The Applicant submitted a second appeal.
Authorities and Second Appeals
- Under 44 C.F.R. § 13.30(d)(1), applicants or grantees must obtain prior approval from FEMA whenever there is a revision of the scope of a project. The PA Guide provides that prior approval is necessary for FEMA to conduct historic preservation reviews.
- FEMA approved funding for a culvert replacement and the Applicant instead built a bridge without receiving prior approval from FEMA. This prevented FEMA from conducting necessary historic preservation reviews.
- Stafford Act section 705(c) bars FEMA from deobligating previously awarded funding if: 1) the payment was authorized by an approved agreement specifying the costs; 2) the costs were reasonable; and 3) the purpose of the grant was accomplished. If any Applicant does not comply with a term of the award, then section 705(c) does not apply.
- FEMA typically determines if the applicant accomplished the grant’s purpose during closeout. In this case, the Region deobligated all funding at closeout because the Applicant did not comply with PW 3076 when it built a bridge without getting prior approval from FEMA.
The Applicant changed the SOW without prior approval from FEMA, preventing FEMA from conducting necessary EHP reviews. At closeout, FEMA determined the purpose of the grant was not accomplished and deobligated all funding. In this case, section 705(c) does not bar FEMA from recovering funding, and the second appeal is denied.