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Direct Result of the Disaster

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1981
ApplicantStutsman County
Appeal TypeSecond
PA ID#093-99093-00
PW ID#(PW) 306
Date Signed2018-02-06T00:00:00
Conclusion: Stutsman County has not demonstrated that repair work completed in September 2011 and May 2012 was the direct result of the disaster.  Thus, the work is ineligible for funding.
 
Summary Paragraph
Between February 14 and July 20, 2011, rains and the spring thaw caused flooding in Stutsman County, North Dakota (Applicant).  Floodwaters submerged CR-39 (Facility), a road that provided sole access to essential services for four residences.  From April 12 to April 28, 2011, the Applicant constructed an emergency grade raise to provide access to the isolated homes.  Due to wave erosion from standing floodwaters, the Applicant installed riprap and surface gravel to reinforce the emergency grade raise between July 21 and July 26, 2011.  FEMA inspected the site on July 26, 2011, and prepared PW 306 Version 0 on July 28, 2011.  Because the Facility was a sole access road for multiple residences, the scope of work provided for converting the emergency grade raise into a permanent grade raise and included riprap as a hazard mitigation measure.  Version 0 also encouraged the Applicant to investigate a less-expensive alternate route and report back to FEMA with either a scope change request or an explanation of why the alternate route was not feasible.  In addition, FEMA conducted an environmental review in compliance with the Endangered Species Act.  Once the environmental review completed, FEMA obligated Version 0 on November 2, 2011.  The Applicant did not begin construction due to the fall freeze-up and due to the conditional language regarding the alternate route that remained in Version 0.  Before FEMA obligated Version 0, the Applicant made repairs to weak areas of the riprap in September 2011.  In February and April, 2012, the Applicant sent letters to FEMA regarding the infeasibility of the alternate route.  FEMA then obligated Version 1, which removed the conditional language regarding the alternate route.  After the thaw in spring, 2012, the Applicant made an additional repair to the emergency grade raise prior to construction beginning on the permanent structure.  At closeout in January 2014, the Applicant requested $700,546.36, which included costs for the repair work.  FEMA awarded all but $45,930.00, explaining that the costs for the September 2011 and May 2012 repairs were not eligible because the Applicant did not demonstrate that they were the direct result of the disaster.  The Applicant submitted a first appeal, which FEMA Region VIII denied on October 6, 2017.  In its second appeal, the Applicant renewed its same arguments made on first appeal that floodwaters from the disaster caused the damages to the emergency grade raise.
     
Authorities and Second Appeals
  • Stafford Act § 406(a)(1)(A)
  • 44 C.F.R. § 206.223(a)
  • Public Assistance Guide, FEMA 322 at 2, 29-30 (June 2007)
  • Palisades Medical Center, FEMA-4086-DR-NJ, at 4 (Mar. 10, 2017); Town of Stillwater, FEMA-4020-DR-NY, at 4-5 (Oct. 23, 2015); Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014)
 
Headnotes
  • Both the Stafford Act and 44 C.F.R. § 206.223(a) provide that work is eligible for Public Assistance (PA) funding only if it is the direct result of a declared disaster.
  • Village of Waterford provides that an Applicant has the burden of demonstrating that damages and work resulting from them are the direct result of a declared disaster. 
    • The Applicant has not demonstrated that the repair work was required as a direct result of the disaster.  Thus, the work is ineligible for PA funding.

 

Appeal Letter

Greg Wilz
Director
North Dakota Department of Emergency Services
5511 Fraine Barracks Lane, Building 35
Bismarck, ND 58506-5511
 
Re: Second Appeal – Stutsman County, PA ID: 093-99093-00, FEMA-1981-DR-ND, Project Worksheet (PW) 306 – Direct Result of the Disaster
 
Dear Mr. Wilz:
 
This is in response to a letter from your office dated November 20, 2017, which transmitted the referenced second appeal on behalf of Stutsman County, North Dakota (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding for repairs to an emergency grade raise on highway CR-39, located in Stutsman County.
 
As explained in the enclosed analysis, I have determined that the Applicant did not demonstrate that work completed in September 2011 and May 2012 was required as a direct result of the declared disaster.  Accordingly, I am denying this appeal and the Applicant’s request for $45,930.00. 
 
Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 
                                              Sincerely,
 
/S/
 
                                                                                          Christopher Logan
                                                                                          Director
                                                                                          Public Assistance Division               
 
Enclosure
cc: Lee K. dePalo
      Regional Administrator
      FEMA Region VIII

 

Appeal Analysis

Background
Between February 14 and July 20, 2011, rains and the spring thaw caused flooding in Stutsman County, North Dakota (Applicant).  As a result of the rains and thaw, Stink Lake, a closed water basin in Stutsman County, flooded and submerged CR-39 (Facility), a road that provided sole access to essential services for four residences.  From April 12 to April 28, 2011, the Applicant constructed an emergency grade raise to provide access to the isolated homes.    
 
A few months after building the emergency grade raise, the Applicant installed riprap and surface gravel to combat erosion, completing that installation between July 21 and July 26, 2011.  FEMA inspected the site on July 26, 2011, and prepared Project Worksheet (PW) 306 Version 0 on July 28, 2011.  Because the Facility was a sole access road for multiple residences, the scope of work provided for converting the emergency grade raise into a permanent grade raise and included riprap as a hazard mitigation measure to protect against erosion.[1]  Version 0 also encouraged the Applicant to investigate an alternate route that was estimated to be less costly than constructing the permanent grade raise, and instructed the Applicant to report back to FEMA with either a scope change request or an explanation of why the alternate route was not feasible.[2] 
 
Due to the presence of piping plover, an endangered bird species, FEMA conducted an environmental review in compliance with the Endangered Species Act.  During the time between FEMA’s preparation of Version 0 and the completion of the environmental review, the Applicant repaired weak areas of the riprap that it installed in July 2011.  This repair work took place from September 7 to September 9, 2011 (September 2011 repair), and cost $10,440.00.  Once the environmental review was completed in late October 2011, FEMA obligated Version 0 on November 2, 2011.  The PW still included the language regarding the alternate route.  The Applicant did not begin construction due to the fall freeze-up, and consequently, construction of the permanent grade raise did not begin until after the spring thaw in 2012.     
 
In February and April, 2012, the Applicant sent FEMA letters requesting approval of the permanent grade raise, explaining that the alternate route was not feasible because an individual had constructed buildings in the area and would not agree to move or sell, and furthermore, FEMA had previously designated the area as archaeologically sensitive in a prior disaster.[3]  FEMA obligated PW 306 Version 1 on April 19, 2012, approving construction of the permanent grade raise without the condition of researching the alternate route.[4]  
 
Construction of the permanent grade raise did not begin immediately because the Applicant had to bid the contract, a process that took several weeks.  During that time, the Applicant made an additional repair to the emergency grade raise, including replacing embankment fill and surface gravel, between April 30 and May 8, 2012 (May 2012 repair).[5]  This repair totaled $35,490.00.  In addition, a second biological study was necessary because construction of the permanent grade raise was now set to begin during the piping plover’s breeding period.  The biological study cleared the project in June 2012, and construction of the permanent grade raise was completed on August 15, 2012. 
 
Closeout for the project began in January 2014.  The Applicant requested $700,546.36, which included costs for the September 2011 and May 2012 repairs.  FEMA issued a Determination Memorandum on March 2, 2017, approving $654,616.36, and explaining that $45,930.00 for the September 2011 and May 2012 repairs was not eligible because the Applicant had not demonstrated that the work was required as a direct result of the disaster.[6] 
 
First Appeal
 
The Applicant submitted its first appeal by letter dated April 18, 2017, arguing that FEMA’s delay in approving the permanent grade raise, without the condition of pursuing the alternate route, caused the emergency grade raise to remain in use for longer than anticipated.[7]  The Applicant argued that this delay exposed the emergency grade raise to continued erosion, leading to the September 2011 repair.  Without this repair, the Applicant contended, the Facility would not have remained passable while the Applicant waited for FEMA to approve the permanent grade raise without the condition of investigating the alternate route.
 
In addition, the Applicant argued that FEMA’s delay in approving the permanent grade raise without the conditional language prevented the Applicant from beginning construction before the fall freeze-up.  The Applicant stated that because of the weather conditions, no construction was possible to begin until after the next spring thaw, and that it needed to make the May 2012 repair to counter erosion prior to building the permanent structure.
 
The Grantee transmitted the Applicant’s appeal by letter dated April 20, 2017.[8]  In its letter, the Grantee argued that the damage to the emergency grade raise in September 2011 and May 2012 was the direct result of the disaster, because the floodwaters from the disaster did not recede before, during, or after the fall 2011 freeze-up.  The Grantee also argued that it was impossible for the Applicant to begin construction of the permanent grade raise after FEMA obligated Version 0 in November 2011, because North Dakota law requires a three-week bid process for large contracts.  Thus, the project would have gone into December 2011, with frozen conditions making it impossible to complete the project.
 
FEMA Region VIII issued a final request for information (Final RFI) on June 21, 2017, requesting information showing that the September 2011 and May 2012 repairs were both required as a direct result of the disaster.[9]  The Applicant responded by letter dated July 11, 2017.[10]  In its letter, the Applicant argued that FEMA had designated the proposed alternate route area as archaeologically sensitive in 1998 during another disaster,[11] and that the Applicant informed FEMA in July 2011 that the alternate route was not feasible.  The Applicant also stated that it made “repeated efforts” to get approval for the installation of riprap, as well as to request that FEMA remove the condition of investigating the alternate route, but never received a response.[12]  This delay, the Applicant contended, exposed the emergency grade raise to erosion for longer than anticipated, which led to the damage necessitating the repairs. 
 
The FEMA Region VIII Acting Regional Administrator (Acting RA) issued the first appeal determination on October 6, 2017, finding that the repair work was not required as a direct result of the disaster.[13]  The Acting RA concluded that the September 2011 repair was done to reinforce weak areas of riprap that the Applicant installed in July 2011, and that this damage could have been caused by poor installation, rather than by the disaster.  In addition, the Acting RA found that the repair made in May 2012, was done after another thaw, which, among other possible factors, could have caused the damage.  Ultimately, the Acting RA found that the Applicant had not demonstrated that the disaster caused the damages.[14]
 
Second Appeal
In its second appeal letter, the Applicant argued that FEMA did not obligate Version 0 until November 2011, and that it still contained the conditional language regarding the alternate route.[15]  Again, the Applicant contended that this conditional language prevented it from beginning construction of the permanent grade raise, and moreover, that the alternate route was never a viable option due to FEMA’s determination in a prior disaster that the area was archaeologically sensitive.  The Applicant also argued that even if the PW had not contained the conditional language when FEMA obligated Version 0, it would have been too late to construct the permanent structure due to the fall freeze-up.  In addition, the Applicant represented that it had tried to get approval for the repairs and explain that the alternate route was not feasible, but never received a response from FEMA. 
 
The Grantee forwarded the Applicant’s second appeal via letter dated November 20, 2017.[16]  The Grantee again argued that even if the Applicant had begun construction of the permanent grade raise immediately after FEMA obligated Version 0, the project could not have been completed due to the fall freeze-up. 
 
Discussion
 
Direct Result of the Disaster
Pursuant to Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, eligible applicants may receive Public Assistance (PA) funding for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[17]  In addition, federal regulations provide that for work to be eligible, it must be required as the result of a declared disaster.[18]  Work is eligible if it relates to damage that occurred during the incident period, or is the direct result of events that occurred during the incident period.[19]  In addition, work for damage that occurs after the end of an incident period that is directly tied to the disaster may also be eligible.[20]  The burden is on the applicant to demonstrate that damage is a direct result of a disaster, and therefore eligible for PA funding.[21]  An applicant must provide more than statements or opinions to substantiate its claims; documentation or other evidence supporting its position must be submitted.[22]
 
  1. September 2011 repair:
 
The Acting RA found on first appeal that the disaster event was not the direct cause of the damage leading to the September 2011 repair.[23]  The Applicant argues that floodwaters that had not receded caused the damage, which the Applicant previously described as “weak areas of rip-rap.”[24]  However, other than its own argument and opinion in its appeal correspondence, the Applicant has not submitted documentation demonstrating that the September 2011 repair work was a direct result of the disaster, rather than the result of another cause.   
 
 
  1. May 2012 repair
 
The Applicant argues that the May 2012 repair was directly tied to the disaster because the floodwaters never receded, then froze, and then damaged the emergency grade raise in the spring once they melted.  While it is uncontested that the floodwaters did not recede before the fall freeze-up in 2011, this information alone is not enough for FEMA to find that the disaster caused the damage that led to the May 2012 repair.  FEMA cannot determine that the disaster caused the damage leading to this repair work because the Applicant did not demonstrate through documentation, beyond its own statements or opinions, that the repair work was a direct result of the disaster.  Although FEMA requested additional information and support documentation in the Final RFI to show why these repairs were the result of the disaster, the Applicant only reiterated the arguments it made on first appeal and submitted no new information to support its contention that the disaster led to the damages.  Therefore, FEMA cannot find that the May 2012 repair work was required as a direct result of the disaster.[25]
 
Conclusion
The Applicant did not submit documentation demonstrating that the additional repair work was required as a direct result of the disaster.  Therefore, the work is not eligible for funding and the second appeal is denied.
 
 

[1] Project Worksheet 306, Stutsman Cty., Version 0 (July 28, 2011).
[2] Id.
[3] Letter from Applicant Agent, Stutsman Cty. Highway Dep’t, to Deputy Governor’s Authorized Representative, N. D. Dep’t of Emergency Servs. (NDDES) (Feb. 2, 2012); Letter from Disaster Recovery Chief, NDDES, to Dir., Response and Recovery Div., FEMA Region VIII, Stutsman Co. Highway Dep’t, to Deputy Governor’s Authorized Representative, NDDES (Apr. 5, 2012) (attaching Applicant’s Feb. 2, 2012 letter).  The Applicant argued on first and second appeal that it had informed FEMA that the alternate route was not feasible in July 2011, but the Applicant did not provide evidence to support that assertion.
[4] Project Worksheet, 306, Stutsman Cty., Version 1 (Apr. 19, 2012).
[5] Letter from Applicant Agent, Stutsman Cty. Highway Dep’t, to Deputy Governor’s Authorized Representative, NDDS, and Reg’l Adm’r, FEMA Region VIII, at 4 (Apr. 18, 2017) [hereinafter Applicant’s First Appeal Letter].
[6] Determination Memorandum, Dir., Recovery Div., FEMA Region VIII, to Deputy Governor’s Authorized Representative, NDDES, and Applicant Agent, Stutsman Cty. Highway Dep’t (Mar. 2, 2017).
[7] Applicant’s First Appeal Letter, at 3-6.
[8] Letter from Disaster Recovery Chief, NDDES, to Dir., Response and Recovery Div., FEMA Region VIII (Apr. 20, 2017).
[9] Letter from Acting Reg’l Adm’r, FEMA Region VIII, to Alt. Governor’s Authorized Representative, NDDES, and Applicant Agent, Stutsman Cty. Highway Dep’t, at 2 (June 21, 2017).
[10] Letter from Applicant Agent, Stutsman Cty. Highway Dep’t, to Alt. Governor’s Authorized Representative, NDDES, and Appeal Analyst, FEMA Region VIII (July 11, 2017) [hereinafter Applicant’s Final RFI Response].
[11] Id. at 2 (stating FEMA previously determined the alternate route as archaeologically sensitive in FEMA-1220-DR-ND, declared on June 15, 1998.)
[12] Id.
[13] Letter from Acting Reg’l Adm’r, FEMA Region VIII, to Dir., Div. of Homeland Security, NDDES, and Applicant Agent, Stutsman Cty. Highway Dep’t (Oct. 6, 2017).
[14] FEMA First Appeal Analysis, Stutsman Cty., FEMA-1981-DR-ND, at 3-4 (citing Public Assistance Guide, FEMA 322, at 2 (June 2007) [hereinafter PA Guide]).  FEMA also found that the administrative delay in obligating PW 306 did not solely contribute to the delay in construction, noting that state and local officials should not delay repair or recovery efforts while awaiting approval for Federal assistance.    
[15] Letter from Applicant Agent, Stutsman Cty. Highway Dep’t, to Deputy Governor’s Authorized Representative, NDDES, and Assistant Adm’r, Recovery Directorate, FEMA Region VIII (Nov. 14, 2017).
 
[16] Letter from Disaster Recovery Chief, NDDES, to Dir., Response and Recovery Div., FEMA Region VIII (Nov. 20, 2017).
[17] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406(a)(1)(A), 42 U.S.C. § 5172 (2007).
[18] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a) (2010).
[19] PA Guide, at 30.
[20] Id. at 29-30. 
[21] FEMA Second Appeal Analysis, Palisades Medical Center, FEMA-4086-DR-NJ, at 4 (Mar. 10, 2017) (citing FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 3 (Sept. 4, 2014) (noting that “[t]he Applicant has the burden of substantiating its claims”)).
[22] FEMA Second Appeal Analysis, Town of Stillwater, FEMA-4020-DR-NY, at 4-5 (Oct. 23, 2015) (finding that the applicant had not submitted documentation establishing that damage was the direct result of the disaster, in part because “[t]he Applicant has not provided maintenance records to support the opinions of the Highway Superintendent and Saratoga National Historical Park Superintendent”).
[23] FEMA First Appeal Analysis, Stutsman Cty., FEMA-1981-DR-ND, at 4.
[24] Applicant’s First Appeal Letter, at 3.
[25] Aside from failing to demonstrate that the repair work was required as a direct result of the declared disaster, the Applicant also did not notify FEMA before making both the September 2011 and the May 2012 repairs.  Applicants must obtain prior approval from FEMA for either a change in the scope of work or a budget revision that would result in increased funding.  44 C.F.R. § 13.30(c)(2), (d)(1).  Other than the Applicant’s assertions in its appeal letters that it attempted to notify the Grantee and FEMA about the need for the repair work, the Applicant did not submit proof of these communication attempts.
Last updated February 4, 2020