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Hazard Mitigation, Improved Project, Predisaster Conditions, Scope of Work

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4020
ApplicantTown of Keene
Appeal TypeSecond
PA ID#031-39067-00
PW ID#2380
Date Signed2017-11-22T00:00:00
Conclusion:  The Town of Keene’s (Applicant) work to extend the east retaining wall of Gulf Brook (Facility) is ineligible for assistance because it did not restore predisaster design and the Applicant did not receive approval from FEMA prior to completion of the work.  Similarly, the work is ineligible as a hazard mitigation measure because the work was completed prior to FEMA performing a review of the project for technical feasibility, environmental and historic preservation compliance, and cost effectiveness.
 
 
Summary Paragraph
In late summer of 2011, Hurricane Irene inundated the Town of Keene (Applicant) with heavy rains causing Gulf Brook to overflow its banks.  The flooding caused the brook’s channel to shift course, and wash away retaining walls and support footings on both sides of the brook.  FEMA prepared Project Worksheet (PW) 2380 to document the damage to the 120-foot long retaining wall on the east bank of the brook (Facility), and to a portion of the road above it.  The estimated cost of repair was $180,750.00.  The PW’s scope of work (SOW) did not identify any hazard mitigation opportunities.  Subsequently, the Applicant received a grant from the Natural Resources Conservation Service (NRCS) under the Emergency Watershed Program (EWP) to construct a 350-foot segment of new retaining wall 250 feet upstream from the original Facility.  On December 19, 2012, the New York State Division of Homeland Security and Emergency Services (Grantee) forwarded to FEMA a SOW change request from the Applicant to extend the Facility an additional 250 feet upstream to connect with the NRCS funded retaining wall.  The Applicant also requested inclusion of the 40-foot long retaining wall on the west bank of the brook in the SOW.  The Applicant’s engineering consultant estimated the project to cost $438,000.00.  In a letter dated July 18, 2013, FEMA denied the request, concluding that extending the Facility beyond its original length of 120 feet constituted an improved project, which the Applicant would need to specifically request from FEMA.  The Applicant appealed FEMA’s denial.  In support of the Applicant’s appeal, the Grantee argued:  (1) the original PW improperly omitted retaining wall repairs on the west bank of the brook; (2) best engineering practices required the extension of the Facility; and (3) the proposed change to the SOW was agreed upon by all parties in the field.  The RA agreed PW 2380 omitted eligible work and partially granted the appeal with respect to the repairs for the west bank retaining wall.  However, the RA denied the appeal with respect to extension of the Facility.  The RA determined the extension of the east retaining wall was an unauthorized improved project and that the work was not necessary to restore the Facility to its predisaster design.  The Applicant appealed the RA’s decision.  The Grantee endorsed the appeal and argues: (1) the Facility is vulnerable to future flooding unless extended beyond its original length, and (2) FEMA’s denial is inconsistent with federal regulations regarding hazard mitigation and FEMA should approve the work in question as a hazard mitigation measure.
 
Authorities and Second Appeals
  • Stafford Act, 42 U.S.C. § 5172.
  • 44 C.F.R. §§ 13.30(d)(1); 206.201(k), 206.203(d)(1), 206.226(e).
  • PA Guide, at 79, 110, 111, 115, 125, 140.
  • RP 9526.1, at 2, 3.
  • Roseau Cty. Hwy. Dept., FEMA-1288-DR-MN, at 7.
 
Headnotes
  • Per 44 C.F.R. § 13.30(d)(1), prior approval is required whenever a revision of the SOW is anticipated.
  • Pursuant to 44 C.F.R. § 206.203(d)(1) and the PA Guide, FEMA must approve improved projects prior to construction when the project will result in significant changes to the pre-disaster configuration of the facility.
  • Per RP 9526.1, FEMA must approve proposed hazard mitigation projects prior to funding.
    • The Grantee previously requested a change in the SOW, which FEMA denied.  The Applicant then completed work beyond the approved SOW.
    • The administrative record does not demonstrate when the Applicant requested either an improved project or hazard mitigation prior to completion of the work.  FEMA never approved an improved project or hazard mitigation.  
 
 
 

Appeal Letter

Barbara Lee Steigerwald
Deputy Commissioner, Alternate Governor's Authorized Representative
New York State Division of Homeland Security and Emergency Services
1220 Washington Avenue
Building 7A, 4th Floor
Albany, NY 12242
 
Re:  Second Appeal – Town of Keene, PA ID 031-39067-00, FEMA-4020-DR-NY, Project Worksheet (PW) 2380 – Hazard Mitigation, Improved Project, Predisaster Conditions, Scope of Work
 
Dear Deputy Commissioner Steigerwald:
 
This is in response to a letter from your office dated September 30, 2016, which transmitted the referenced second appeal on behalf of the Town of Keene (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a request to revise the scope of work (SOW) for Project Worksheet (PW) 2380.
 
As explained in the enclosed analysis, I have determined that the work to extend the east retaining wall of Gulf Brook is ineligible for assistance because it did not restore the predisaster design of the Facility and the Applicant did not receive approval from FEMA prior to commencement of the work.  Similarly, the work is ineligible as a hazard mitigation measure because the work was completed prior to FEMA performing a review of the project for technical feasibility, environmental and historic preservation compliance, and cost effectiveness.  Accordingly, I am denying the appeal. 
 
Please inform the Applicant of my decision.  This determination is the final Agency decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 
Sincerely,
        /s/
 
                                                                        Christopher Logan
                                                                        Director
                                                                        Public Assistance Division      
 
Enclosure
cc:  Thomas Von Essen
Regional Administrator
FEMA Region II

 

Appeal Analysis

In late summer of 2011, Hurricane Irene inundated the Town of Keene (Applicant) with heavy rains causing Gulf Brook to overflow its banks.  The flooding caused the brook’s channel to shift course, and wash away retaining walls and support footings on both sides of the brook.  FEMA prepared Project Worksheet (PW) 2380 to document the damage to the 120-foot long retaining wall on the east bank of the brook (Facility), and to a portion of the road above it.  The estimated cost of repair was $180,750.00.  The PW’s scope of work (SOW) did not identify any hazard mitigation opportunities.
 
Subsequently, the Applicant received a grant from the Natural Resources Conservation Service (NRCS) under the Emergency Watershed Program (EWP) to construct a 350-foot segment of new retaining wall 250 feet upstream from the original Facility.  On December 19, 2012, the New York State Division of Homeland Security and Emergency Services (Grantee) forwarded to FEMA a SOW change request from the Applicant to extend the Facility an additional 250 feet upstream to connect with the NRCS funded retaining wall.  The Applicant also requested inclusion of the 40-foot long retaining wall on the west bank of the brook in the SOW.[1]  The Applicant’s engineering consultant estimated the project to cost $438,000.00.[2]  In a letter dated July 18, 2013, FEMA denied the request, concluding that extending the Facility beyond its original length of 120 feet constituted an improved project, which the Applicant would need to specifically request from FEMA.[3]
 
First Appeal
 
In a letter to the Grantee, dated October 10, 2013, the Applicant appealed the denial of its requested change in SOW.  The Grantee endorsed and forwarded the appeal to FEMA, asserting the original PW was improperly prepared as it omitted repair of damage to the retaining wall on the west bank of the brook.[4]  The Grantee also argued the PW did not include mitigation or best engineering practices, which required extension of the Facility beyond its original length.[5]  The Grantee asserted that representatives from FEMA, the Grantee, the Applicant, U.S. Army Corps of Engineers (USACE), and the NRCS, all participated in a site visit on January 9, 2012, and discussed and agreed there was a need to extend the length of the Facility due to stream channel erosion from the storm event.[6]  
FEMA sent a Final Request for Information (Final RFI) to the Applicant seeking documentation to demonstrate FEMA’s field representatives agreed or had a mutual understanding with the Applicant and Grantee that a revised SOW was required for the project.[7]  The Final RFI asked for invoices for all the work and for the start and end dates of the work.[8]  FEMA also sought documentation demonstrating the work claimed in the SOW change request was the result of the disaster and was required to restore the Facility’s predisaster function.[9]  In its response to the Final RFI, the Applicant provided several reports, invoices, photos and other documents.[10]  The Applicant reiterated its claim that during the January 2012 site visit, all attendees agreed with the engineering consultant’s recommendation to restore and extend the Facility beyond its original length, though the Applicant provided no documentation to support this claim.[11]  The Applicant stated the work to restore both retaining walls and to extend the east retaining wall began on October 22, 2012, and completed on June 14, 2013 for a total cost of $466,986.34.[12]
 
The RA issued a first appeal decision on June 6, 2016, partially granting the Applicant’s appeal with respect to the repair of the west retaining wall, but denied the Applicant’s request to revise the SOW to extend the Facility.  The RA found that the work to extend the Facility: (1) was not required to restore predisaster design, (2) was never proposed or approved as a hazard mitigation measure, (3) significantly changed the Facility’s footprint and configuration, and (4) exceeded the approved SOW and therefore constituted an unauthorized improved project.  The RA stressed the referenced January 2012 site visit communications with FEMA were not evidence of any official or unofficial commitment by FEMA to amend the SOW to include the Applicant’s proposal to extend the Facility.
 
Second Appeal
 
In an August 3, 2016 letter to the Grantee, the Applicant appeals the RA’s denial of the Applicant’s SOW change request, asserting that extension was necessary as a hazard mitigation measure.[13]  Since the disaster changed the angle of approach of the streambed, upstream of the original retaining wall, extending the wall was necessary to prevent future flood damage to it.  The Applicant emphasizes that extension of the Facility followed best engineering practices and the work was different from the project funded by the NRCS grant. 
 
In a letter dated, September 30, 2016, the Grantee endorsed and forwarded the appeal to FEMA. According to the Grantee, the extension of the Facility is eligible as a hazard mitigation measure because the retaining wall at its original length would have been vulnerable to future flood damage.  The Grantee also asserts that at a site visit on January 9, 2012, all parties in attendance agreed that extension of the east retaining wall was an appropriate hazard mitigation measure.  According to the Grantee, per federal regulation, the RA may require cost effective hazard mitigation measures not required by applicable standards and the cost of such measures are eligible for FEMA assistance.  The Grantee seeks $439,500.00 in Public Assistance funding for the work.
 
Discussion
 
Predisaster Design
 
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) Section
406(e) authorizes FEMA to fund the cost of repairing, restoring, reconstructing, or replacing an eligible facility.[14]  Repair or restoration work must return a facility to its pre-disaster design, function, and capacity in accordance with applicable codes or standards.[15]  FEMA regulation defines “predisaster design” as the size or capacity of a facility as originally designed and constructed or subsequently modified by changes or additions to the original design.[16]
 
The original Facility, washed away by flooding, was approximately 120 feet in length.[17]  The Applicant extended its original predisaster length to 365 feet.[18]  In doing so, the Applicant changed the Facility’s predisaster design by substantially increasing the Facility’s size.  Both the Applicant and Grantee acknowledge the work was not necessary to restore the Facility’s predisaster design, but rather intended to prevent future flood damage.  As such, the RA correctly concluded the work ineligible because it exceeded the original SOW and was not necessary to restore the predisaster design.
 
Approval of an Improved Project or Change in Scope of Work
 
When performing permanent restoration work, an applicant may decide to make improvements to a damaged facility while still restoring its predisaster function.[19]  However, an applicant must obtain approval for an improved project prior to the start of construction, especially where it results in a significant change from the facility’s predisaster configuration, as FEMA is required to complete the appropriate environmental and/or historic preservation reviews.[20]  Additionally, FEMA regulation requires prior approval of the awarding agency whenever an applicant anticipates any revision of the scope or objective of the project.[21]  FEMA policy cautions applicants not to assume that such costs can be reported at the end of the project and that the additional funds will be approved automatically.[22]  Where an applicant fails to obtain FEMA’s prior approval, it risks denial of costs for work that exceeds the approved SOW.[23]
 
According to the administrative record, the work in question began on October 22, 2012.  Yet, the Applicant, via the Grantee, did not request a change in the SOW until December 19, 2012.  The work was completed on June 14, 2013, prior to FEMA’s denial of the request for a change in the SOW, on July 18, 2013.  The Applicant does not deny that the completed project exceeded the FEMA-approved SOW.[24]  The administrative record does not contain any documentation of FEMA’s approval of either an improved project, or for a change in the original SOW.  Therefore, the RA correctly denied the portion of the Applicant’s appeal seeking revision of the SOW to extend the Facility.
 
Section 406 Hazard Mitigation
 
Section 406 of the Stafford Act provides FEMA discretionary authority to fund mitigation measures in conjunction with repair of disaster-related damage.[25]  FEMA must approve proposed hazard mitigation projects prior to funding.[26]  Hazard mitigation affects the SOW and funding of a project.[27]  Therefore, timely identification of the issue is critical, especially since an applicant is required to obtain prior approval whenever it anticipates a change in the SOW.[28]  In order to approve hazard mitigation, FEMA must review the measures for technical feasibility, environmental and historic preservation (EHP) compliance, and cost effectiveness.[29] 
 
FEMA did not approve any hazard mitigation measures for this project, as the original SOW for PW 2380 did not identify hazard mitigation opportunities.  The Applicant requested a change in SOW, which FEMA unambiguously denied.  The Applicant completed work beyond the originally approved SOW, and now claims it was hazard mitigation.  As a result, the Applicant has precluded FEMA from carrying out its responsibility to evaluate the work for technical feasibility, cost effectiveness and EHP compliance.  Therefore, FEMA cannot find extension of the Facility eligible for reimbursement as hazard mitigation.
 
Conclusion
 
The Applicant exceeded the originally approved SOW and changed the Facility’s predisaster design by extending the east retaining wall without FEMA’s prior approval.  The Applicant did not seek FEMA’s approval for hazard mitigation until after completion of the work, preventing FEMA from conducting required review of technical feasability, cost effectiveness and EHP compliance.  Therefore, the Applicant’s appeal is denied.
 

[1] Letter from Alternate Governor’s Authorized Representative, N.Y., to Reg’l Adm’r, FEMA Region 2, at 1 (Dec. 19, 2012) (explaining that the Grantee received a request to change the SOW from the Applicant via the Applicant’s consulting engineer).
[2] Letter from Schroder River Assocs., to Supervisor, Town of Keene, N.Y., at 2 (Sep. 6, 2012) [hereinafter Engineering Consultant’s Recommendation].
[3] Letter from Acting Pub. Assistance Branch Chief, FEMA Region II, to Alternate Governor’s Authorized Representative, N.Y., at 2 (July 18, 2013).
[4] Memorandum from N.Y. State Div. of Homeland Sec. and Emergency Servs., at 1 (Apr. 21, 2014).
[5] Id. at 1-2.
[6] Id. at 1-3.
[7] Letter from Acting Pub. Assistance Branch Chief, FEMA Region II,  to Alternate Governor’s Authorized Representative, N.Y., and Supervisor, Town of Keene, N.Y., at 2 (Mar. 27, 2015).
[8] Id.
[9] Id. at 1.
[10] Letter from Supervisor, Town of Keene, N.Y., to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs., at 1 (May 14, 2015).
[11] Id. at 3.
[12] Id. at 4.
[13] Letter from Supervisor, Town of Keene, to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs., at 1 (Aug. 3, 2016) [hereinafter Applicant’s Second Appeal Letter]. 
[14] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42
U.S.C. § 5172 (2006).
[15] Public Assistance Guide, FEMA 322, at 79 (June 2007) [hereinafter PA Guide].
[16] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(k) (2010).
[17] The Damage Description and Dimensions block of PW 2380 lists the length of the east retaining wall as 120 feet.  However, the Engineering Consultant’s Recommendation described the same wall as being 115 feet long.  There does not appear to be any explanation for the discrepancy.  However, it is immaterial to this analysis. 
[18] Engineering Consultant’s Recommendation, at 2.
[19] PA Guide, at 110.
[20] Id. at 111; 44 C.F.R. § 206.203(d)(1).
[21] 44 C.F.R. § 13.30(d)(l).
[22] PA Guide, at 140.
[23] FEMA Second Appeal Analysis, Roseau Cty. Hwy. Dept., FEMA-1288-DR-MN, at 7 (Jan. 6, 2017).
[24] Applicant’s Second Appeal Letter, at 1 (explaining that “if only the 120 foot of original wall had been replaced, it would have been subject to future flood destruction.”).
[25] Recovery Policy RP 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act), at 2 (Mar. 30, 2010).
[26] Id. at 3.
[27] PA Guide, at 115.
[28] Id. at 115; supra note 21.
[29] PA Guide, at 125.
Last updated May 28, 2020