Environmental Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	1768-DR-WI
Applicant	Village of Pardeeville
Appeal Type	Second
PA ID#	021-61100-00
PW ID#	2624
Date Signed	2014-12-16T00:00:00

Conclusion:  The Applicant completed work on a dam project, and the Grantee requested an improved project, without first allowing FEMA officials to conduct a review for compliance with EHP authorities.  In addition, the environmental review conducted as part of another federal agency’s grant program did not encompass the work on the dam.  Therefore, FEMA correctly denied funding for the project.

Summary Paragraph

The Village of Pardeeville (Applicant) performed repairs to a stoplog dam facility on Park Lake damaged by a summer 2008 flooding event.  The Applicant proceeded to make improvements to the facility, and the State of Wisconsin Department of Military Affairs, Division of Emergency Management (Grantee), requested approval of an improved project after the work had been completed, before FEMA could perform a review for compliance with environmental and historic preservation (EHP) authorities.  Moreover, an environmental review the Applicant’s contractor completed as part of the process for receiving grant funding under the U.S. Department of Housing and Urban Development’s Community Development Block Grant Emergency Assistance Program (HUD CDBG-EAP) did not address the work performed on the dam structure.  Based on the after-the-fact request for an improved project and inapplicability of the environmental review that had been performed, FEMA denied funding under PW 2624.  The Applicant filed a first appeal, asserting that the environmental review encompassed the work on the stoplog dam.  The FEMA Region V Regional Administrator denied the first appeal, concluding that the environmental assessment did not apply to the stoplog dam work.  On second appeal, the Applicant again asserted that the environmental review applied to the stoplog dam project, and set forth additional arguments.

Authorities and Second Appeals

• Stafford Act § 316, 42 U.S.C. § 5159
• 44 C.F.R. § 206.203(c)(2); 44 C.F.R. §§ 10.8(c) and (d)
• PA Guide, at 127-128
• City of El Dorado Springs, FEMA 1847-DR-MO
• Houston County, FEMA-1835-DR-AL
• Mendocino County, FEMA-1628-DR-CA

Headnotes

• When providing funding for a project under the PA Program, FEMA must consider a range of federal statutes, regulations, and Executive Orders related to EHP. 
• FEMA must ensure compliance with EHP authorities before providing funding.  When an applicant initiates or completes work on a project before FEMA is able to conduct the necessary environmental and historic preservation compliance review, PA funding generally is not eligible.

Exemptions from the National Environmental Protection Act, whether statutory or categorical, do not exempt FEMA’s actions from compliance with all other applicable EHP authorities.

Appeal Letter

Appeal Analysis

Background

In the summer of 2008, heavy rains and severe storms caused flooding throughout the Village of Pardeeville (Applicant), including flooding of the Fox River and its tributaries within the village.  The flooding caused damage to two of the Applicant’s dam structures located along Park Lake.  One structure is a hydroelectric facility located between Park Lake and Spring Lake, and the other is a spillway consisting of stoplog gates located approximately one-third of a mile north of the hydroelectric facility, along the Fox River and Park Lake.  FEMA prepared separate Project Worksheets (PWs) to document the work and costs of repairing these structures.  PW 2566 addressed the hydroelectric facility, and PW 2624 addressed the stoplog dam.  For both projects, the Applicant pursued repairs both to restore the facilities to their pre-disaster condition, as well as to make improvements.  The repair work was performed using contract labor. 

The U.S. Housing and Urban Development’s (HUD) Community Development Block Grant Emergency Assistance Program (CDBG-EAP) funded portions of the work on the projects.  In July 2010, as part of the CDBG-EAP process, the Applicant’s contractor prepared an environmental review.

On December 6, 2011, the State of Wisconsin Department of Military Affairs, Division of Emergency Management (Grantee), requested approval of an improved project for the stoplog dam structure (PW 2624) after work already had been completed.  FEMA environmental and historic preservation (EHP) officials reviewed the request and determined that the environmental review prepared under the CDBG-EAP grant process did not address the work associated with the stoplog dam.  FEMA determined, therefore, that the work had been performed without the agency having the opportunity to review it for compliance EHP laws and perform necessary consultations.  Thus, FEMA found that costs associated with the stoplog dam work were ineligible, and in February 2013 deobligated associated funding (totaling $33,637.50) from PW 2624.

First Appeal

The Applicant submitted a first appeal in a letter dated May 2, 2013.  The Applicant stated that FEMA “was aware that we were doing a combined project”[1] with the HUD CDBG-EAP and cited a March 25, 2013 letter from the State of Wisconsin Department of Administration’s Division of Housing as stating that the environmental review conducted as part of the CDBG-EAP grant process covered “all aspects of the projects.”[2]  The Applicant asserted that, according to the letter, the state believed that the Applicant’s project “is in compliance, and that it met with all applicable laws and requirements.”[3]

The FEMA Region V Regional Administrator denied the first appeal in a letter dated
June 13, 2013.  The decision noted FEMA EHP’s determination that the project was non-compliant because “additional work was completed on the project before a necessary FEMA environmental review was completed,” which “circumvented FEMA’s ability to complete the review and consultations that would have been necessary.”[4]        The decision stated that FEMA considered the environmental review prepared under the HUD CDBG-EAP grant and could not find any “evidence that the Park Lake stop-log dam or components were included within that review.”[5]  Because the environmental review did not include the Park Lake stoplog dam structure, the RA concluded, the FEMA EHP officials correctly determined that the project was not in compliance with applicable environmental authorities.

Second Appeal

The Applicant submitted a second appeal in a letter dated August 9, 2013.  The Applicant sets forth numerous arguments in support of its position that its stoplog dam project is eligible for funding.  The Applicant argues, among other things, that:

• The environmental assessment completed as part of the HUD CDBG-EAP process included the entire scope of work of repairs under PW 2624.
• PW 2624 involved a small project that doesn’t require an environmental review.
• PW 2624 was subject to a statutory exclusion (STATEX) from the National Environmental Policy Act (NEPA), but FEMA did not apply the exclusion.
• PW 2624 was eligible for a categorical exclusion (CATEX) from NEPA, but FEMA did not apply the exclusion.
• The Applicant never had an opportunity to comply, upfront, with EHP requirements as they were made known to it only after construction had been completed.

The Grantee transmitted the second appeal to the FEMA Region V Regional Administrator in a letter dated October 9, 2013.  The Grantee supports the Applicant’s appeal, stating that the environmental review encompassed the work completed on the stoplog dam.

Discussion

When providing funding for a project under the PA Program, FEMA must consider a range of federal statutes, regulations, and Executive Orders related to EHP, including the NEPA[6], the Endangered Species Act[7], and the National Historic Preservation Act.[8]  FEMA must ensure compliance with these authorities before providing funding.[9]  The compliance review process must be completed before FEMA approves funding and before work is started because “the review may identify steps to be taken or conditions to be met before the project can be implemented,” including possible consultation with other federal agencies and public notification.[10]  When an applicant initiates or completes work on a project before FEMA is able to conduct the necessary EHP compliance review, PA funding generally is not eligible.[11]

Here, the Grantee requested approval of an improved project after work on the Park Lake stoplog dam already had been completed.  The work was completed, and the request submitted, before FEMA EHP officials had an opportunity to conduct necessary reviews for compliance with applicable EHP authorities.  FEMA, therefore, properly denied funding for PW 2624.  

The Applicant and Grantee argue that the July 2010 environmental review prepared by the Applicant’s contractor as part of the HUD CDBG-EAP process encompassed the work performed at the stoplog dam under PW 2624.  Contrary to their assertions, the environmental review does not address the stoplog dam but, instead, the construction of a new Park Lake overflow spillway structure approximately one-third  of a mile south of the stoplog dam, near the hydroelectric facility addressed in PW 2566.  As FEMA EHP officials and the Regional Administrator noted, the environmental review’s narrative, pictures, maps, and schematics did not reference the stoplog dam; the review only addressed the new spillway structure located near the existing hydroelectric facility.

The Applicant’s remaining arguments are without merit.  As to the stoplog dam project being a small PA project,[12] such projects are not exempt from the environmental review process, as the Applicant asserts.  As to whether a statutory exemption from NEPA[13] applied to this project, a November 11, 2008 comment in PW 2624 does state that, based on-scope-of-work information provided by the applicant at the time, the stoplog dam work qualified for an exemption.  However, as discussed, the Applicant completed an improved project, and the Grantee requested approval for it after construction had been completed.  For PA permanent work, the statutory exemption applies only to repair or reconstruction projects that restore facilities substantially to their pre-disaster footprint, function and size; the exemption does not apply to improvements.[14]  As to the possibility of a statutory exemption as well as a categorical exemption[15] from NEPA, even if one or both of those exemptions applied, NEPA represents only one part of the necessary EHP review FEMA must undertake before a project may be funded.  Exemptions from NEPA, whether statutory or categorical, do not exempt FEMA’s actions from compliance with all other applicable EHP authorities.  Finally, the Applicant’s assertion that it was made aware of EHP compliance requirements only after work had been completed is baseless, as the November 11, 2008, PW 2624 entry expressly stated that any changes to the approved scope of work would require further EHP review and that “non-compliance with this requirement may jeopardize the receipt of federal funding.”  The Applicant, therefore, was on notice that any deviations from the approved scope of work would require EHP review.

Conclusion

The Applicant completed an improved project on the Park Lake stoplog dam under PW 2624— and the Grantee requested approval for the improved project—before FEMA could conduct a necessary EHP review.  Moreover, the environmental assessment prepared under the HUD CDBG-EAP process did not apply the stoplog dam project.  FEMA correctly determined that, with the work completed in the absence of the EHP compliance review process, the stoplog dam project was not eligible for funding.

[1] Letter from Administrator, Village of Pardeeville to FEMA Regional Administrator requesting an appeal (May 2, 2013).

[2] Id.

[3] Id.

[4] FEMA First Appeal Analysis, City of Pardeeville, FEMA-1768-DR-WI (June 13, 2013).

[5] Id.

[6] The National Environmental Policy Act of 1969, Pub. L. No. 91-190.

[7] The Endangered Species Act of 1973, Pub. L. No. 93-205.

[8] The National Historic Preservation Act of 1966, Pub. L. No.89-665.

[9] See Public Assistance Guide, FEMA 322 at 127-128, at 127 (June 2007) [hereinafter PA Guide].

[10]  Id. at 128.

[11]  See, e.g., FEMA Second Appeal Analysis, Houston County, Environmental Compliance, FEMA-1835-DR-AL (Feb. 13, 2013); and Mendocino County, Eel River Road,  FEMA-1628-DR-CA (April 9, 2008).

[12]  See 44 C.F.R. § 206.203(c)(2).

[13]  See 42 U.S.C. § 5159; 44 C.F.R. § 10.8(c).

[14]  See 44 C.F.R. § 10.8(c)(2); PA Guide at 129.

[15]  See 44 C.F.R. § 10.8(d).