Codes and Standards – Environmental and Historic Preservation Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4241
Applicant	Kershaw (County)
Appeal Type	Second
PA ID#	055-99055-00
PW ID#	PW 803
Date Signed	2020-09-21T16:00:00

Summary Paragraph

Between October 1 and October 23, 2015, severe storms and flooding damaged corrugated metal pipe (CMP) culverts (Facilities) under four roads in Kershaw County, South Carolina (Applicant).  FEMA prepared Project Worksheet (PW) 803 to document the scope of work (SOW) to replace the Facilities and return them to their predisaster design and to provide Public Assistance (PA) funding.  The PW noted the Applicant would contract for a Hydrology and Hydraulics (H&H) study to determine the proper culvert size to accommodate a 100-year flood event in accordance with applicable codes and standards, and would work with the South Carolina Emergency Management Division (Grantee) to submit a change in SOW request, if applicable, to FEMA along with a request for additional funding (i.e., cost overrun), as soon as possible after the H&H study was complete.  The Applicant subsequently requested a SOW change to replace the Facilities with culverts using a much larger design as recommended by the H&H study; at the time of the request, work had been completed at one site and construction was underway at another site.  FEMA denied the Applicant’s SOW change request, stating that the cited code did not appear to meet regulatory criteria for allowable codes and standards upgrades.  The Applicant appealed, arguing the code met the stated criteria.  FEMA Region IV denied the appeal because the Applicant did not demonstrate that the upgrades were required by codes and standards that applied to both new development and existing developed land.  In addition, the Applicant did not afford FEMA the opportunity to conduct necessary environmental and historic preservation (EHP) reviews, or provide documentation that it performed an EHP assessment, and it did not acquire FEMA’s approval prior to implementing design changes.  FEMA found it could not ensure the Facilities’ upgraded designs complied with environmental statutes, regulations, Executive Orders (EO) and policies.  The Applicant’s second appeal reiterates and expands on previous arguments.

 

Authorities and Second Appeals

• Stafford Act § 406(e).
• 44 C.F.R. § 206.226(d).
• National Environmental Policy Act
• PA Guide, at 127-128, 139-140.
• Town of Killington, FEMA-4022-DR-VT.

Headnotes

• Section 406(e) of the Stafford Act authorizes FEMA to fund repair, restoration, reconstruction or replacement of an eligible facility to its predisaster design and in conformity with applicable codes and standards.   44 C.F.R. § 206.226(d) provides that for the costs of Federal, State, and local repair or replacement standards which change the pre-disaster construction of a facility to be eligible, the standards must: (1) apply to the type of repair or restoration required (standards may be different for new construction and repair work); (2) be appropriate to the pre-disaster use of the facility; (3) be found reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster declaration date, or be a legal Federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and, (5) for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.  All five prongs must be met in order to be eligible for Public Assistance (PA) funding.  
  • The stormwater management ordinance applies to both new development and existing developed land, therefore the zoning and land development regulation standards meet FEMA’s allowable upgrades under its codes and standards requirements
• The National Environmental Policy Act (NEPA) requires all federal agencies to consider the environmental impact of a proposed action as well as whether any alternatives exist, prior to obligating funds and beginning work.  When providing funds under the PA Program, FEMA must consider a range of Federal laws, regulations, and EOs that apply to the use of Federal funds.  These laws, regulations, and EOs generally require the funding agency to ensure compliance prior to funding.  The size and type of project, and project site and area conditions, generally determine the level of review that must be performed.  Reviews for compliance with these laws must be completed before FEMA approves funding and before work is started since the review may identify steps to be taken or conditions to be met before the project can be implemented.   Changes in the scope of work may result in additional environmental/ historic preservation compliance reviews and/or new permits.  A project’s SOW may impact EHP resources; EHP staff must review the SOW to determine if modifications could reduce potential impacts.  Proceeding with permanent work before FEMA completes EHP reviews jeopardizes PA funding.
  • The Applicant commenced construction without giving FEMA an opportunity to review the work for EHP compliance, and did not provide independently submitted EHP reviews for consideration.  The available documentation does not allow FEMA to determine that the project complies with EHP laws, regulations, and EOs.

Conclusion

FEMA finds the cited code meets the regulatory criteria for allowable codes and standards upgrades, however, the Applicant did not afford FEMA the opportunity to comply with NEPA, prior to beginning work.  The documentation provided by the Applicant does not allow FEMA to determine that the project complies with EHP statutes, regulations, EOs and policies.  Therefore, the appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

Between October 1 and 23, 2015, severe storms and flooding damaged corrugated metal pipe (CMP) culverts (Facilities) under four roads[1] in Kershaw County, South Carolina (Applicant).  FEMA prepared Project Worksheet (PW) 803 to document the scope of work (SOW) to replace the Facilities and return them to their predisaster design and to provide Public Assistance (PA) funding.  The PW noted that the Applicant’s Unified Code of Zoning and Land Development Regulations (ZLDR), stated “(a)ll unavoidable improvements such as culverts or bridges along [certain water channels] shall be designed to accommodate flows resulting from a 100-year frequency storm.”[2]  The PW also noted the Applicant would contract for a Hydrology and Hydraulics (H&H) study to determine the proper culvert size to accommodate a 100-year flood event in accordance with applicable codes and standards.  The PW indicated that the Applicant would then work with the South Carolina Emergency Management Division (Grantee) to submit a change in SOW request, if applicable, to FEMA along with a request for additional funding (i.e., cost overrun), as soon as possible.[3]  In June 2016, FEMA obligated $88,316.07 to restore the Facilities to their predisaster condition.

The Applicant requested a change in SOW in September 2017 to upgrade the work per the ZLDR recommendations.  The table below shows original design specifications and proposed changes:

 

Site and Road

Original design

Original estimate

Proposed design

Proposed estimate

Site 1: Three Branches Road

(1) 40-foot by 60-inch corrugated metal pipe (CMP)

$50,236.85

(3) 40-foot by 60-inch reinforced concrete pipes

$64,507.00

Site 2: Belton Road

(1) 35-foot by 84-inch CMP

$19,940.70

(1) 16-foot by 7-foot by 35-foot arch aluminum culvert

$478,000.00

Site 3: Tremble Road

(1) 32-foot by 48-inch CMP

$10,082.90

(2) 9-foot by 6-foot by 36-foot box culverts

$287,293.40

Site 4: Brazell Road

(1) 30-foot by 42-inch CMP

$7,632.55

(1) 16-foot by 4-foot by 30-foot arch aluminum culvert

$401,500.00

On April 18, 2018, FEMA denied the Applicant’s request, stating that the ZLDR did not appear to meet regulatory criteria for allowable codes and standards upgrades, as it applied to new construction but did not apply to existing structures such as the Applicant’s Facilities.

 

First Appeal

The Applicant appealed by letter dated June 15, 2018 for $1,315,744.93.  The Applicant argued the ZDLR met FEMA’s codes and standards criteria because the Facilities were destroyed and had to be completely rebuilt, and were uniformly applied and enforced at the time, as demonstrated by their application in two other projects that were not eligible for PA.  The Grantee supported the Applicant’s appeal by letter dated July 31, 2018.

FEMA issued Requests for Information (RFI) to the Applicant and Grantee.  The second RFI, dated September 16, 2019, requested an analysis of why the particular designs were chosen, documentation showing FEMA reviewed the change in SOW prior to construction completion plus copies of any supplementary environmental analysis completed on the Applicant’s behalf, and confirmation that the Applicant’s ZLDR are an extension of the county stormwater management ordinance (SWMO).  FEMA noted PA funds may be jeopardized if work was completed before FEMA completed necessary environmental and historic preservation (EHP) reviews, particularly regarding projects that included changes to predisaster design.  The Applicant responded on October 15, 2019 and provided memoranda and calculations regarding the replacement and design of the Facilities.

The FEMA Region IV Regional Administrator denied the appeal on December 17, 2019.  FEMA noted that if the SWMO applied to both new development and existing developed land, then the ZLDR standards would meet FEMA’s allowable upgrades under its codes and standards requirements.  However, FEMA found the Applicant had not afforded the Agency the opportunity to conduct necessary EHP reviews, and had not provided documentation that it performed an EHP assessment or acquired FEMA’s approval prior to implementing design changes that may have impacted the surrounding environment.  Therefore, FEMA determined it could not ensure the Facilities’ upgraded designs comply with EHP statutes, regulations, Executive Orders (EO) and policies.

 

Second Appeal

The Applicant’s February 18, 2020 second appeal reiterates and expands on previous arguments.  The Applicant notes the ZLDR was enacted in February 2010 and was in effect and enforced at the time of the disaster.  The Applicant asserts an EHP review was not required under Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226.  The Applicant states the U.S. Army Corps of Engineers (USACE) approved work it performed and granted the applicable permits.  The Applicant states FEMA can review the USACE permitting process to assess all EHP considerations.  The Grantee supports the Applicant’s appeal by letter dated February 21, 2020.

By letter dated April 28, 2020, FEMA’s sent the Applicant an RFI to provide it the opportunity to submit additional documentation in support of its second appeal arguments.  FEMA requested the USACE permits cited in the second appeal, documentation of any environmental reviews conducted prior to initiating work on the upgrades, and any additional supporting documentation that may help FEMA determine whether the Applicant is in compliance with all EHP statutes, regulations, EOs and policies.  The Applicant responded on May 28, 2020 with documentation including Joint Federal and State Application Forms, permit authorizations and maps, photographs and diagrams.

 

Discussion

Codes and Standards

Section 406(e) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to fund repair, restoration, reconstruction or replacement of an eligible facility to its predisaster design and in conformity with applicable codes and standards.[4]  44 C.F.R. § 206.226(d) provides that for the costs of Federal, State, and local repair or replacement standards which change the pre-disaster construction of a facility to be eligible, the standards must: (1) apply to the type of repair or restoration required (standards may be different for new construction and repair work); (2) be appropriate to the pre-disaster use of the facility; (3) be found reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster declaration date, or be a legal Federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and, (5) for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.  All five prongs must be met in order to be eligible for Public Assistance (PA) funding.[5] 

In the first appeal analysis, the RA noted that if the SWMO applied to both new development and existing developed land, then the ZLDR standards would meet FEMA’s allowable upgrades under its codes and standards requirements.  Section 1.4 of the SWMO[6] in effect at the time of the disaster states, “[i]t is the purpose of this ordinance to protect, maintain, and enhance the environment of Kershaw County and the short-term and long-term public health, safety, and general welfare of the citizens of Kershaw County by establishing requirements and procedures to control the potential adverse effects of increased stormwater runoff associated with both future development (including redevelopment) and existing developed land.”  FEMA finds the SWMO applies to both new development and existing developed land, applies to the type of repair or restoration required, is appropriate to the predisaster use of the facility, is reasonable, in writing and formally adopted and implemented before the disaster declaration date, and applies uniformly to similar types of facilities within the ower’s jurisdiction, therefore the ZLDR standards meet FEMA’s allowable upgrades under its codes and standards requirements. 

 

Environmental and Historic Preservation Compliance

The National Environmental Policy Act (NEPA) requires all federal agencies to consider the environmental impact of a proposed action as well as whether any alternatives exist, prior to obligating funds and beginning work.[7]  When providing funds under the PA Program, FEMA must consider not only the PA eligibility requirements contained in 44 C.F.R. Part 206, Subpart H, but also a range of Federal laws, regulations, and EOs that apply to the use of Federal funds.[8]  These laws, regulations, and EOs generally require the funding agency to ensure compliance prior to funding.  The size and type of project, and project site and area conditions, generally determine the level of review that must be performed.[9]  Reviews for compliance with these laws must be completed before FEMA approves funding and before work is started since the review may identify steps to be taken or conditions to be met before the project can be implemented.[10]  Changes in the SOW may result in additional EHP compliance reviews and/or new permits.[11]  A project’s SOW may impact EHP resources; EHP staff must review the SOW to determine if modifications could reduce potential impacts.  Proceeding with permanent work before FEMA completes EHP reviews jeopardizes PA funding.[12]

FEMA denied the first appeal in part because the Applicant did not afford the Agency the opportunity to conduct necessary EHP reviews, and did not provide documentation that it performed an EHP assessment or acquired FEMA’s approval prior to implementing design changes that may have impacted the surrounding environment.  In its second appeal, the Applicant asserts the work it performed was approved by and permitted by the USACE.  FEMA provided the Applicant an opportunity to submit additional documentation of any environmental reviews conducted prior to initiating work on the upgrades, and any additional supporting documentation that may help FEMA determine whether the Applicant is in compliance with all EHP statutes, regulations, EOs and policies.  The Applicant responded with documentation including Joint Federal and State Application Forms, permit authorizations and maps, photographs and diagrams.  Upon review of the materials submitted by the Applicant, FEMA finds that they do not substantiate that the Applicant complied with EHP laws, regulations and policy.  The documentation does not demonstrate that all necessary EHP reviews required by FEMA were completed by USACE or by any other agency prior to construction, or that all necessary permits (i.e., section 401 and 404 permits) were obtained.  As noted above, changes in the SOW may result in additional EHP compliance reviews.  Here, the work would have triggered the reviews FEMA is required to perform.  Unfortunately, FEMA cannot determine that the project complied with EHP statutes, regulations, EOs and policies based on the documentation submitted by the Applicant.  

 

Conclusion

The cited code meets the regulatory criteria for allowable codes and standards upgrade, however, the Applicant did not afford FEMA the opportunity to comply with NEPA, prior to beginning work.  The documentation provided by the Applicant does not allow FEMA to determine that the project complies with EHP statutes, regulations, EOs and policies.  Therefore, the appeal is denied.

 

[1] Three Branches Road, Belton Road, Tremble Road and Brazell Road.

[2] Project Worksheet 803, Kershaw (County), Version 0 (June 3, 2016).

[3] Id.

[4] Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406(e), 42 U.S.C.

§ 5172 (2013); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(d) (2015).

[5] Public Assistance Guide, FEMA 322, at 34 (June 2007) [hereinafter PA Guide].

[6] ORDINANCE No. 258.2015 Amended and Restated Kershaw County Stormwater Management Ordinance, DONE, RATIFIED, AND ADOPTED IN REGULAR MEETING OF KERSHAW COUNTY COUNCIL THIS 9th DAY OF JUNE 2015.

[7] National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §§ 4331-4332 (2012); see also Environmental Planning & Historic Preservation Policy 108.024.4, Projects Initiated Without Environmental Review Required by the National Environmental Policy Act, at 2 (Dec. 18, 2013) (stating it is FEMA policy that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for funding).

[8] Public Assistance Guide, FEMA 322, at 127-36 (July 2007) (listing numerous examples of applicable EHP laws, regulations, and EOs including NEPA, the Endangered Species Act, and the National Historic Preservation Act).

[9] Id., at 127.

[10] Id., at 128.

[11] Id., at 139-40.

[12] FEMA Second Appeal Analysis, Town of Killington, FEMA-4022-DR-VT, at 3-4 (Dec. 7, 2017).