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Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4350
Applicant	Ocean Springs, City of
Appeal Type	Second
PA ID#	059-53520-00
PW ID#	PW 170
Date Signed	2020-11-17T17:00:00

Summary Paragraph

In October 2017, Hurricane Nate impacted the state of Mississippi, including the City of Ocean Springs (Applicant).  The Applicant sustained damage to 62 streetlights and an irrigation system, including an electrical conductor wire and conduit, power outlet boxes, lighting control box panel boards, and irrigational controllers along Front Beach Drive (Facility) as a result of the disaster.  FEMA prepared Project Worksheet (PW) 170 to document the damage.  FEMA found that the project was ineligible for Public Assistance funding, because the work was eligible for funding under the Federal Highway Administration’s (FHWA) Emergency Relief (ER) program.  The Applicant filed a first appeal, arguing that the Facility is located closer to a walking and biking pathway than to the roadway.  The FEMA Region IV Regional Administrator determined that the Facility was ineligible because the Facility is a Federal-aid route eligible for FHWA ER funding. 

 

Authorities and Second Appeals

•  Stafford Act §§ 102(10), 406 (a)(1)(A).
•  23 U.S.C. § 125
•  44 C.F.R. §§ 206.221(h), 206.226(a)(1).
•  PAPPG, at 117.
•  York (town of), FEMA-4367-DR-ME, at 4.
• City of Ocean Springs, FEMA-1604-DR-MS, at 2.

 

Headnotes

• The Stafford Act defines a public facility to include any non-Federal-aid street, road, or highway owned by a local government.  Federal-aid routes are not eligible for PA funding even if the FHWA ER program is not activated or if FHWA does not provide funding for the work.
  • The Facility was constructed using FHWA funds and lies along a Federal-aid route.

 

Conclusion

The Facility is a component of a Federal-aid route and is not eligible for FEMA PA funding.

Appeal Letter

Appeal Analysis

Background

In October 2017, Hurricane Nate caused heavy rainfall, straight-line winds, and storm surge throughout southern Mississippi, including the City of Ocean Springs (Applicant).  The Applicant sustained damage to 62 streetlights and an irrigation system, including an electrical conductor wire and conduit, power outlet boxes, lighting control box panel boards, and irrigational controllers along Front Beach Drive (Facility) as a result of the disaster. 

FEMA prepared Grants Manager Project (GMP) 36386, Project Worksheet (PW) 170, to document the damage to the Facility.  The estimated cost to complete the work was $332,720.40.  The damage description identified several codes and standards upgrades necessary to complete the work, including raising the electrical and mechanical elements above the established base flood elevation, platform clearances, maintenance, and ambient temperature allowance for wires inside a conduit, and requirements for safe access to elevated platforms.  On March 2, 2019, FEMA issued a Determination Memorandum (DM), stating that the work was ineligible for FEMA Public Assistance (PA) funding because the Facility was under the authority of the Federal Highway Administration’s (FHWA) Emergency Relief (ER) program.

 

First Appeal

The Applicant appealed FEMA’s determination that the Facility was ineligible for PA funding in a letter dated May 1, 2019.  The Applicant acknowledged that Front Beach Drive is classified as a major collector road by the Mississippi Department of Transportation (MDOT), due to the lights being considered half street lights and half for lighting an adjacent walking and biking pathway.[1]  The Applicant argued that the 62 streetlights in question are located closer to the pathway than to the roadway, 18-34 feet from the roadway.[2]  The Applicant argued that there is landscaping and vegetation between the pathway and the roadway of 10-18 feet.[3]  The Applicant submitted photographs and video documenting this.  The Applicant also submitted an invoice and estimate from its contractor documenting costs already incurred for the project as well as estimated costs for future work.  The Mississippi Emergency Management Agency (Grantee) forwarded the Applicant’s Appeal with a letter of support dated June 17, 2019.

On October 8, 2019, FEMA sent a final Request For Information (RFI) to the Applicant expressing concern that the administrative record was insufficient to establish eligibility for PA funding.  FEMA sought documentation demonstrating the location of the Facility in relation to Federal-aid routes, including the GPS coordinates for each light; photographs showing the design style of the streetlights, including any variance in style among the 62 lights; documentation regarding the initial installation of the street lights; clips or still shots of the video footage showing the area illuminated by the street lights; a description of the scope of work (SOW); and citations to the applicable codes and standards in place at the time of the disaster.

The Applicant responded to the final RFI on December 6, 2019, supplying maps and GPS coordinates, photographs and drone footage of the Facility, documentation regarding the initial installation of the pathway, a description of the SOW, and identification of the particular applicable codes and standards.

On June 5, 2020, the FEMA Region IV Regional Administrator determined that the Facility is a Federal-aid route eligible for FHWA ER funding.  While FEMA acknowledged the Facility serves the pathway, at least in part, FEMA found that the Applicant’s documentation did not establish its responsibility for the maintenance and repair of the Facility.   First, the administrative record includes an application for payment that involves components related to the installation of the pathway, including the irrigation system, without mention of the streetlights.  Second, the administrative record includes a revised estimate sheet for streetlight repairs on Front Beach Drive prepared by MDOT, which was submitted for 100 percent reimbursement from FHWA.  Taken together, FEMA determined, the documentation suggests the streetlights were installed separately from the pathway, using funds from either MDOT or FHWA, and that the project was thus ineligible for FEMA funding.  Accordingly, FEMA denied the first appeal.

 

Second Appeal

In its second appeal, dated July 15, 2020, the Applicant reiterates that the lights should be considered beach pathway lights rather than streetlights.[4]  The Applicant states that the lights were installed in 2012 and that prior to that time, lights were located next to the roadway and illuminated the roadway.[5]  The Applicant states that 11 of the 62 lights are out and others are dim, creating a safety hazard.[6]  The Applicant acknowledges that Front Beach Drive is a major collector road according to MDOT and that the lights were installed by MDOT using FHWA funds in 2012.[7]  The Grantee forwarded the Applicant’s second appeal with its support on August 21, 2020.

 

Discussion

Other Federal Agencies

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act authorizes FEMA to provide financial assistance to local governments for the repair, restoration, reconstruction or replacement of a public facility damaged or destroyed by a major disaster.[8]  The Stafford Act defines a “public facility” to include any “non-Federal-aid street, road, or highway” owned by a local government.[9]  FEMA PA funding is not available when another Federal agency has specific authority to restore facilities damaged or destroyed by a major disaster.[10]  FHWA is authorized to restore Federal-aid routes, and their components, under its ER program.[11]  Federal-aid routes are not eligible for PA funding even if the FHWA ER program is not activated or if FHWA does not provide funding for the work.[12]

The Applicant acknowledges in its second appeal that Front Beach Drive, the road along which the Facility is located, is a Federal-aid road, classified as a major collector road by MDOT.[13]  Though the photographs and drone footage submitted with the second appeal do show that the Facility lights the pathway adjacent to Front Beach Drive, the Applicant also acknowledges the construction of the streetlights was funded by MDOT as an FHWA project in 2012.[14]  Consequently, the Facility is a component of a Federal-aid route and is not eligible for FEMA PA funding.

 

Conclusion

The Facility is a component of a Federal-aid route and is not eligible for FEMA PA funding.

 

[1] Letter from City Clerk, City of Ocean Springs, to Executive Dir., Miss. Emergency Mgmt. Agency, at 1 (May 1, 2019).

[2] Id.

[3] Id.

[4] Letter from City Clerk, City of Ocean Springs, to Assistant Adm’r, Recovery Div., FEMA, at 1 (July 15, 2020) [hereinafter Second Appeal].

[5] Id. at 2.

[6] Id. at 1.

[7] Id.

[8] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(A) (2012).

[9] Stafford Act § 102(10) (Supp. I 2013), 42 U.S.C. § 5122(10) (Supp. I 2013).  See also Title 44, Code of Federal Regulations (44 C.F.R.) § 206.221(h)  (2017).

[10] 44 C.F.R. § 206.226(a)(1).

[11] 23 U.S.C. § 125 (Supp. III 2015).  See also Public Assistance Program and Policy Guide, FP-104-009-2, at 117 (2018) [hereinafter PAPPG].

[12] PAPPG at 117; see also FEMA Second Appeal Analysis, York (town of), FEMA-4367-DR-ME, at 4 (Aug. 18, 2020); see also FEMA Second Appeal Analysis, City of Ocean Springs, FEMA-1604-DR-MS, at 2 (Mar. 29, 2010).

[13] Second Appeal at 1.

[14] Id.