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Bridges, Scope of Work

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1751-DR-AR
ApplicantTown of Springtown
Appeal TypeSecond
PA ID#007-66200-00
PW ID#3058
Date Signed2015-03-27T00:00:00

Conclusion: The Applicant is not entitled to retain the obligated funds as small project funding because it did not complete the bridge replacement in accordance with the approved scope of work nor did it establish extenuating circumstances to justify an otherwise untimely alternate project request.

Summary Paragraph

In 2008, severe storms, tornadoes, and flooding in Arkansas caused damage to the Flint Creek Bridge.  FEMA prepared Project Worksheet (PW) 3058 to replace, rather than repair the bridge.  FEMA obligated the federal cost share of $30,013.58.  In February 2011, the Applicant submitted an improved project request to build a replacement bridge 25 feet from the original.  As a condition for approval, FEMA required the Applicant to submit an environmental assessment (EA).  The Applicant submitted a U.S Department of Housing and Urban Development (HUD) EA, which FEMA found insufficient.  The Applicant withdrew its request, opting to utilize HUD supplemental funding toward the new bridge.  Meanwhile, the Applicant temporarily restored the Flint Creek Bridge, which it demolished once the new bridge was complete.  The Applicant, however, sought to retain FEMA’s funding claiming that, by temporarily restoring the bridge, it completed the work according to the PW’s scope of work.  Per the Grantee’s representative, the Applicant had not completed the work pursuant to the PW.  Accordingly, the Region VI Director, Recovery Division, found the Applicant ineligible for small project funding and required that all funds be deobligated.  In its first appeal, the Applicant alleged that: (1) it should retain funding because it complied with the PW’s scope of work by temporarily restoring the bridge to its predisaster function, (2) if FEMA considered the project incomplete, FEMA should allow the Applicant to request an alternate project, arguing that the deadline for requests was removed in FEMA DAP 9525.13 issued in 2008, or (3) if FEMA deemed the project incomplete and denied the alternate project request, FEMA should modify the PW’s scope of work to meet the Applicant’s disaster needs.  The Regional Administrator denied the appeal, finding that the Applicant did not complete the project per the PW’s scope of work, and denying the alternate project request as unsubstantiated and untimely.  FEMA then revised PW 3058 deobligating all funds.  In its second appeal, the Applicant reiterates its claim that the project was functionally completed and states that FEMA has consistently deviated from the 12-month deadline for alternate project requests in extenuating circumstances. 

Authorities Discussed

  • 44 C.F.R. § 206.202(f)(2) (2007).
  • 44 C.F.R. § 206.203(c)(2) (2007).
  • 44 C.F.R. § 206.203(d)(1)-(2) (2007).
  • 44 C.F.R. § 206.205(a) (2007).
  • Public Assistance Guide, FEMA 322, at 109 (June 2007).
  • DAP 9525.13, Alternate Projects (July 31, 2001).

Headnotes

  • 44 C.F.R. § 206.205(a) requires the Grantee to certify that a project was completed in line with FEMA approvals for small project funding.  Pursuant to Public Assistance Guide, FEMA 322, at 109 (June 2007), failure to start or complete a small project requires FEMA to deobligate funding.
    • The Applicant did not replace the Flint Creek Bridge per the PW scope of work.
  • Pursuant to 44 C.F.R. § 206.203(d)(2), the Applicant may request an alternate project when the public welfare would not be best served by restoring a damaged public facility or the function of that facility. DAP 9525.13 mandates that the request be made within 12 months after the kickoff meeting.  Per 44 C.F.R. § 206.202(f)(2), the deadline can be waived in extenuating circumstances.
    • The Applicant requested an alternate project nearly five years post disaster without demonstrating extenuating circumstances beyond its control.

Appeal Letter

March 27, 2015

David Maxwell
Director
Arkansas Department of Emergency Management
Camp Joseph T. Robinson, Building 9501
North Little Rock, Arkansas 72199-9600

Re: Second Appeal – Town of Springtown, PA ID 007-66200-00, FEMA-1751-DR-AR, Project Worksheet (PW) 3058, Scope of Work

Dear Mr. Maxwell:

This is in response to your letter dated September 18, 2014, which transmitted the referenced second appeal on behalf of the Town of Springtown (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) deobligation of small project funding for bridge repairs performed at Flint Creek, or alternatively, denial of the Applicant’s request for an alternate project. 

As explained in the enclosed analysis, I have determined that the Applicant did not complete the bridge replacement on Flint Creek in accordance with the PW’s approved scope of work.  As such, pursuant to 44 C.F.R. § 206.205(a), the Applicant cannot retain FEMA funds as small project funding.  Further, the Applicant’s request for an alternate project was untimely.  Given that the Applicant did not establish the existence of extenuating circumstances to warrant a waiver of the 12-month filing deadline, I find no basis on which to grant the Applicant’s request for an alternate project.  Therefore, I am denying this appeal.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206 Appeals.

   Sincerely,     

   /s/           

   William W. Roche
   Director
   Public Assistance Division

Enclosure

cc: George A. Robinson
      Regional Administrator
      FEMA Region VI

 

Appeal Analysis

Background

On March 18 to April 28, 2008, severe storms, tornadoes, and flooding caused damage to the low water crossing bridge on Flint Creek in the Town of Springtown (Applicant).  FEMA determined that the bridge was eligible for replacement because the cost to repair the damage exceeded 50 percent of the costs to replace the bridge.  As a result, on July 31, 2008, FEMA prepared Project Worksheet (PW) 3058 to replace, rather than repair the bridge, pursuant to 44 C.F.R. § 206.226(f).  The PW’s scope of work included replacing concrete slabs and aprons and installing new corrugated metal pipes to restore the Flint Creek Bridge to its predisaster function.  FEMA obligated the federal cost share of $30,013.58.  The PW also indicated that the Applicant intended to pursue an improved project.

Improved Project Request

On December 13, 2010, the Applicant submitted an improved project request to use the grant funds toward a replacement bridge relocated 25 feet away from the original location.  The bridge was located on a low-level flood plain and near a creek, and consequently, the culverts often got congested during storms resulting in frequent flooding of the bridge.  As such, the Applicant sought to relocate the bridge upstream to the narrowest point on the floodplain and the highest adjacent grade.

As a condition for improved project approval, FEMA required the Applicant to submit an Environmental Assessment (EA).  FEMA provided the Applicant with guidance on what constituted a valid EA.  The Applicant submitted several documents consisting of letters and a checklist, which FEMA identified as Housing and Urban Development (HUD) EA documents.  FEMA found the HUD EA insufficient per 44 C.F.R. Part 10.  The Applicant also made a determination of a Finding of No Significant Impact—which the Applicant had no authority to perform—and published it in a Public Notice in a local paper on April 28, 2011.  On June 28, 2011, FEMA informed the Applicant that the HUD EA was insufficient and prohibited the Applicant from constructing the new bridge until the Applicant provided the requested EA and FEMA approved it.

On August 2, 2011, the Applicant requested through the Arkansas Department of Emergency Management (Grantee) that FEMA consider the improved project as a Categorical Exclusion (CATEX) pursuant to 44 C.F.R. 10.8(d), on the basis that another federal agency had already performed an EA and found that the new bridge would pose no significant environmental impact.[1]  FEMA responded through the Grantee to the Applicant on August 3, 2011.  FEMA determined that the HUD EA was insufficient because (1) it did not address the construction of the new bridge, a road that the Applicant intended to build to provide access to an undeveloped park, and construction of the park; and (2) the HUD EA did not comply with the laws FEMA follows and did not provide documentation substantiating HUD’s conclusions.  As such, FEMA concluded that another EA would not duplicate the HUD EA.[2]

The Applicant subsequently withdrew its improved project request on September 14, 2011.  Instead the Applicant opted to utilize HUD supplemental funding toward the new bridge and informed the Grantee that it would retain the obligated amount as small project funding.

Small Project Funding

While the Applicant built the new bridge, it temporarily restored the Flint Creek Bridge.  As a result, the Applicant stated that it was entitled to retain the FEMA obligated funds as small project funding because it completed the PW’s scope of work on the original bridge.  By letter dated January 10, 2012, the Grantee stated that its representative inspected the Flint Creek Bridge location and found that the Applicant had not completed the work in accordance with the PW’s scope of work.  The Grantee gave the Applicant until May 1, 2012, to complete the work or return the $30,013.58 in FEMA obligated funds. 

On June 27, 2012, the Applicant responded to the Grantee’s January 10, 2012 letter, declining to return the funds to FEMA absent an express FEMA determination and deobligation, and, even so, not until all appeal avenues were exhausted.  The Applicant also stated that the “intent and purpose of PW 3058 scope of work was to restore road access over Flint Creek, and the [Applicant had] accomplished [that] objective.”[3]  The Applicant specified that it repaired the Flint Creek Bridge “sufficiently to keep it open for public use until the new bridge was completed three years later.”[4]  The Applicant subsequently demolished the Flint Creek Bridge once the new bridge was complete. 

On March 13, 2013, the Region VI Recovery Division Director determined that the Applicant had not completed the project in accordance with the PW’s scope of work.  Consequently, the Director ordered that $30,013.58 be deobligated. 

First Appeal

On May 8, 2013, the Applicant submitted a first appeal to the Grantee.  The Applicant alleged that: (1) it complied with the PW’s scope of work and should retain the funds as small project funding because it temporarily restored the bridge to its predisaster function, (2) if FEMA considered the project incomplete, FEMA should allow the Applicant to request an alternate project, arguing that the deadline for alternate project requests was removed in FEMA DAP 9525.13 issued August 2, 2008, or (3) if FEMA rejected the project as complete for small project funding or as an alternate project, FEMA should modify the PW to meet the Applicant’s needs.    

In support of the first appeal, the Applicant stated that it could not build the new bridge at the old location because of creek formation.  Hence, the Applicant requested that the project be considered complete for purposes of small project funding, reasoning that “the intent and purpose of PW 3058 (i.e., restoring road access over Flint Creek) was fully satisfied”[5] when its function was restored before demolition.  The Applicant also claimed that, due to the high cost of preparing an EA and the resulting time delay, the Applicant reached an agreement with the Grantee to withdraw its improved project request in exchange for retaining the obligated funds as small project funding. 

The Grantee transmitted the first appeal on June 3, 2013.  The Grantee stated that it advised the Applicant to withdraw its improved project request and submit documents supporting the Flint Creek Bridge replacement in order to retain the obligated funding, provided the documents showed that the Applicant complied with the approved scope of work.  According to the Grantee, the Applicant did not provide the necessary supporting documentation.  An inspection of the original bridge by the Grantee’s representative showed that the scope of work defined in the PW for Flint Creek Bridge was not completed.

On October 23, 2013, FEMA sent a Request for Information (RFI) to the Applicant requesting documentation on the following: (1) work performed on Flint Creek Bridge before demolition as well as a description of all demolition related activities; (2) the Applicant’s decision to construct a new bridge, including details of code and standard requirements, and engineering reports; (3) details of the replacement bridge; (4) the HUD EA including all findings and compliance measures; and (5) clarification of the alternate project. 

The Applicant responded to the RFI on November 25, 2013, as follows:

  1. Demolition- the Applicant explained that it repaired the bridge numerous times after the disaster due to further damage caused by truck traffic and five additional flooding events.  The Applicant submitted a photograph of the bridge immediately before demolition, an invoice of the labor performed, and a summary of expenditures for supplies and labor for repairs.  As far as demolition-related activities, the Applicant removed concrete and used it to stabilize banks elsewhere.  The Applicant submitted photographs of the removal of the damaged structure’s concrete.
  2. Decision to construct a new bridge – The Applicant explained that it decided to construct the new bridge because the Flint Creek Bridge was located within a flood plain and became congested with debris creating a dam, which forced the creek to flow over the bridge.  The new bridge would withstand a 100-year flood event and removal of the Flint Creek Bridge would allow for better flow of water.

The Applicant also submitted several documents in response to the remainder of the RFI.  The Regional Administrator denied the appeal on June 17, 2014, finding that the Applicant did not complete the project in accordance with the PW for purposes of small project funding and that the alternate project request was unsubstantiated and untimely.  FEMA also stated that Disaster Assistance Policy DAP9525.13, Alternate Projects (July 31, 2001) was applicable because it was in effect at the time of the disaster.  The policy imposes a 12-month deadline to file an alternate project.  As such, the Applicant’s request for an alternate project was untimely.  FEMA subsequently revised PW 3058 deobligating $30,013.58. 

Second Appeal

In its second appeal, dated August 11, 2014, the Applicant reiterates its first appeal claim that the project was functionally completed for purposes of small project funding and states that FEMA has consistently deviated from the 12-month deadline for alternate project requests where extenuating circumstances exist.  The Applicant requests that FEMA consider an alternate project which would allow the Applicant to “improve drainage on Springtown Main Street by paving the street and adding culverts and storm water sewers to prevent erosion and prevent contamination of Flint Creek.”[6]

Discussion

Small Project Funding

The central issue here is when a project is deemed complete.  The Applicant claims that it is entitled to keep the remaining obligated funds as small project funding because the Flint Creek Bridge was restored to predisaster function, albeit temporarily.  For small project funding, the Grantee must certify that the Applicant completed the project “in accordance with FEMA approvals,”[7] which is recognized as the PW’s approved scope of work.  Failure to start or complete a small project requires FEMA to deobligate funding.[8]

The PW approved replacement of the bridge to its predisaster condition, with specifications.  The Applicant maintains that it complied with the PW’s scope of work when it restored to functional condition, then demolished, the Flint Creek Bridge.  The Applicant provisionally restored the bridge to functional condition while it constructed the new facility but did not follow the prescribed PW’s scope of work.  The Applicant has not demonstrated that its provisional restoration of the Flint Creek Bridge complied with the PW specifications.  Thus, FEMA has no basis on which to find that the Applicant complied with the PW’s scope of work.

Even if FEMA accepts the Applicant’s contention that the bridge was functionally completed, the Grantee is required to certify that the project was completed in accordance with the PW’s approved scope of work, as required by 44 C.F.R. 206.205(a).  If the Grantee finds the project incomplete, FEMA will deobligate funding.  The Grantee inspected the bridge and found it incomplete.  The Applicant subsequently demolished the Flint Creek Bridge.  Essentially, the Applicant is requesting that FEMA provide small project funding for a nonexistent bridge.  Thus, FEMA appropriately deobligated the funds. 

Alternate Project

Where an Applicant determines that the public welfare would not be best served by restoring a damaged facility or the function of that facility, the Applicant may request an alternate project.[9]  The Applicant’s request for an alternate project must be timely.[10]  Pursuant to Disaster Assistance Policy DAP9525.13, Alternate Projects (July 31, 2001), which was in effect at the time of the disaster, a proposal for an alternate project must be submitted within 12 months of the applicant's Kickoff Meeting.[11]  In specific circumstances, FEMA may extend the time to identify eligible work where an applicant shows extenuating circumstances beyond its control.[12]

The Applicant argues that FEMA has consistently deviated from the 12-month deadline in situations where extenuating circumstances exist, citing the Florida Field Office for the 2004 and 2005 disaster declarations, where, due to circumstances beyond the applicants’ control, FEMA allowed alternate project requests after the deadline.  To substantiate extenuating circumstances, the Applicant cited the chain of events since the inception of the project.  The Applicant explained that it indicated its intent to pursue an improved project at the outset and submitted an improved project request, which it withdrew once FEMA rejected the HUD EA and imposed the burden on the Applicant to acquire the correct EA.  Given that the FEMA-requested EA would have cost approximately half of the obligated funding, the Applicant found it cost prohibitive to pursue the EA. 

FEMA finds no basis to find the existence of extenuating circumstances because all matters were within the Applicant’s control.  The Applicant could have completed the project in accordance with the PW’s scope of work, timely requested an alternate project, or provided an EA for the improved project.  The fact that the Applicant chose to abandon the improved project in favor of using HUD funding toward a replacement bridge does not rise to the level of extenuating circumstances; the Applicant simply exercised another option.  Absent an adequate justification for seeking an alternate project years after the deadline, FEMA must deny the Applicant’s alternate request.

Conclusion

The Applicant failed to complete the project in accordance with the PW’s scope of work and is thus not entitled to retain the small project funding.  Alternatively, the Applicant cannot seek alternate project funding years after missing the required deadline, as another avenue to retain FEMA funds.  As such, FEMA denies the second appeal.



[1] Email from Recovery Branch, Arkansas Department of Emergency Management, to Public Assistance Infrastructure Branch Chief, FEMA (Aug. 2, 2011, 16:23 CST).

[2] Email from Public Assistance Infrastructure Branch Chief, FEMA, to Arkansas Department of Emergency Management Email List (Aug. 3, 2011, 09:15 CST).

[3] Letter from City Attorney, Town of Springtown, to Director, Disaster Management Division, Arkansas Department of Emergency Management,  1 (June 27, 2012).

[4] Id. at 2.

[5] Letter from Mayor, Town of Springtown, to Disaster Management Division, Arkansas Department of Emergency Management, 2 (May 8, 2013).

[6] Letter from Mayor, Town of Springtown, to Director, Disaster Management Division, Arkansas Department of Emergency Management, 3 (August 11, 2014).

[7] 44 C.F.R. § 206.205(a) (2007).

[8] Public Assistance Guide, FEMA 322, at 109 (June 2007) (“If a small project, including any mitigation work, was not started or was not completed, funds will be de-obligated.”).

[9] 44 C.F.R. § 206.203(d)(2) (2007).

[10] DAP 9525.13, Alternate Projects (July 31, 2001).

[11] Id.

[12] 44 C.F.R. § 206.202(f)(2) (2007).

 

Last updated May 28, 2020