Scope of Work, Environmental Compliance, 705(c)
Conclusion: Plymouth Township (Applicant) completed work beyond the scope of work (SOW) approved in Project Worksheet (PW) 5465 without notice to or prior approval from FEMA, thereby failing to afford FEMA the opportunity to comply with the National Environmental Policy Act (NEPA). Moreover, as the Applicant did not accomplish the purpose of the grant, FEMA is not prohibited by Section 705(c) of the Stafford Act from deobligating all previously awarded funding in the amount of $233,722.37.
In September 2011, rains from Tropical Storm Lee caused severe flooding in the Applicant’s region, resulting in the collapse of a portion of a road that served as the only access for a community containing 65 homes. In February 2012, FEMA approved funding to repair the disaster damaged road documented in PW 394. Soon thereafter, the Applicant requested a change to the SOW to build a temporary access road, with a paved surface and a full roadway drainage system, for use while the disaster damaged road was closed for repair. In December 2012, FEMA obligated $290,549.00 in funding under PW 5465 (Version 0), as a Category C project, approving a temporary access road with an aggregate surface and minimal drainage, on property available to the Applicant. After the project was complete, FEMA learned the Applicant had completed permanent work (i.e. paving the road and installing concrete headwalls). As a result, FEMA deobligated $56,826.63 of permanent work and found the total eligible costs to be $233,722.37. The Applicant appealed the deobligation, contending permitting requirements, public safety, and practical necessities mandated the SOW carried out by the Applicant, and asserting all environmental issues were addressed. It also requested an additional $15,000.00 to cover the purchase of property used to construct the road. On December 19, 2016, FEMA Region III’s Regional Administrator denied the appeal, determining the Applicant completed a SOW that FEMA previously denied, did not obtain prior approval for the changes, and did not provide FEMA the opportunity to consider Environmental and Historic Preservation implications of the project. As a result, FEMA deobligated all previously awarded funds in the amount of $233,722.37. The Applicant filed a second appeal, re-raising its previous arguments and stating it constructed the permanent road with the belief it would still be awarded the original temporary road funding.
Authorities and Second Appeals
- Stafford Act §§ 403, 406(a), 705(c).
- 42 U.S.C. §§ 4331-4332.
- 44 C.F.R. §§ 13.30(d)(1), 13.43(a), 206.226.
- PA Guide, at 74, 128, 140.
- Office of Coastal Protection and Restoration, FEMA-4080-DR-LA, at 9 (Dec. 23, 2016); Town of Bennington, FEMA-4022-DR-VT, at 7 (Sept. 15, 2015).
- FEMA Environmental Policy Memo # 3 (May 3, 1996).
- Under 44 C.F.R. § 13.30(d)(1), applicants must obtain the prior approval of the awarding agency whenever any revision of the scope or objectives of the project is anticipated. In addition, the PA Guide states that an applicant should notify the state as soon as possible when a change in the SOW is discovered so that the state can forward it to FEMA.
- As the Applicant changed the SOW from a temporary gravel road to a permanent paved road without notice to or prior approval from FEMA, the project is not eligible for Public Assistance (PA).
- The PA Guide makes clear a NEPA review must be completed prior to beginning work.
- As the Applicant did not notify FEMA of the change to the SOW until after it completed the work, it failed to afford FEMA the opportunity to comply with NEPA. As such, the work is ineligible.
- Under Section 705(c) of the Stafford Act, FEMA may deobligate previously awarded funding if the purpose of the grant was not accomplished.
- As the purpose of the temporary road grant was not accomplished, FEMA is not prohibited from deobligating all previously awarded funding.
Richard D. Flinn, Jr.
Pennsylvania Emergency Management Agency
2605 Interstate Drive
Harrisburg - Pennsylvania 17110
Re: Second Appeal – Plymouth Township, PA ID 079-61656-00,
FEMA-4030-DR-PA, Project Worksheet (PW) 5465 –
Scope of Work, Environmental Compliance, 705(c)
Dear Mr. Flinn:
This is in response to a letter from your office dated March 30, 2017, which transmitted the referenced second appeal on behalf of Plymouth Township (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of an additional $71,826.63 in funding under PW 5465 and FEMA’s deobligation of $233,722.37.
As explained in the enclosed analysis, I have determined that by constructing a permanent paved road, the Applicant completed work beyond the approved scope of work, which was limited to constructing a temporary gravel road. This was done without notice to or prior approval from FEMA, and as a result, the Applicant did not afford FEMA the opportunity to comply with the National Environmental Policy Act. Further, FEMA is not prohibited by Section 705(c) of the Stafford Act from deobligating all previously awarded funding as the Applicant did not accomplish the purpose of the grant for the temporary roadway. Accordingly, I am denying the appeal.
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.
Public Assistance Division
cc: Mary Ann Tierney
Regional Administrator, Acting
FEMA Region II
In September 2011, rains from Tropical Storm Lee caused severe flooding in Plymouth Township (Applicant), located in Luzerne County, Pennsylvania, resulting in severe erosion of Tilbury Terrace Road. Due to a slope failure, a portion of the road and shoulder collapsed. In February 2012, FEMA approved funding under Project Worksheet (PW) 394 for permanent repairs to the flood damaged portion of Tilbury Terrace Road. In April 2012, the Applicant submitted to the Pennsylvania Emergency Management Agency (Grantee) a request to change the scope of work (SOW) and a request to build a temporary access road for use while Tilbury Terrace Road was closed for repair. The Applicant stated Tilbury Terrace Road would be closed for a minimum of 90-120 days and as the damaged road was the only means of access for the community, consisting of 65 homes, a temporary road would be needed. The Applicant proposed building the temporary road on property it owned to the rear of the community and attached an estimate from its engineering firm that outlined the construction of a 20 foot wide paved surface with two foot wide shoulders on each side, a concrete slab slope, and rip-rap lined swales. The Grantee forwarded the Applicant’s request to FEMA in July 2012.
FEMA sent the Grantee a letter dated August 21, 2012, denying the Applicant’s SOW change request. Specifically, FEMA found the 20 foot wide paved surface with two foot wide shoulders on each side, and a full roadway drainage system with concrete headwalls and rip-rap lined swales, went beyond what was required for a temporary road and such work would be more properly classified as a permanent road. However, FEMA agreed temporary access was needed while Tilbury Terrace Road was closed, and approved a temporary access road of the same length and width, with an aggregate surface six inches thick and drainage pipes at two locations. FEMA calculated a total cost estimate of $235,000.00 to complete the project and noted: (1) that a separate PW would be prepared for the temporary road; and (2) that if the Applicant still desired to construct its proposed access road as a permanent road, it could request FEMA classify it as an improved project. However, funding for an improved project, such as a permanent road, would be limited to the $235,000.00 cost estimate.
FEMA prepared PW 5465, and approved funding for the Applicant’s requested temporary road. The PW stated that “Temporary Road” was the name of the facility, and designated the PW as a Category C project. In the SOW, FEMA specifically noted that because Tilbury Terrace Road was the only means of access for residents of the community, it approved the request to provide funding for “construction of a temporary road on property available to the [Applicant].” However, FEMA noted the Applicant’s “request was approved with the caveat that federal funding will be limited to costs required for a temporary facility with [an] aggregate surface and [a] minimal amount of drainage.”
The Grantee forwarded FEMA’s letter to the Applicant on August 27, 2012, stating that “the letter specifies that FEMA will write a separate [PW] for the temporary road” and “any permanent roadway would constitute an improved project.” It further stated if the Applicant “desire[d] to construct a permanent roadway, [it] must submit [its] request for an improved project.”
FEMA prepared its Record of Environmental Consideration (REC), titled “Temporary Road” in November 2012. The REC noted “[t]he request has been approved by [Public Assistance (PA)] with the caveat that federal funding will be limited to costs required for a temporary facility with aggregate surface and minimal amount of drainage” and “[a]ny change to the approved [SOW] will require re-evaluation for compliance with (the National Environmental Policy Act) and other Laws and Executive Orders.” On December 27, 2012, FEMA obligated $290,549.00 in PA funding for the project.
On May 24, 2013, the Applicant certified it completed the work authorized in PW 5465 and listed its final expenditures as $311,220.21. FEMA completed a final review of the project, documented in the Final Inspection Report (FIR), and determined some of the work completed was permanent work (i.e., paving the road and concrete headwalls). FEMA found the permanent work ineligible for funding because the project was limited to temporary road work. As a result, on February 19, 2014, FEMA prepared PW 5465 (Version 1), deobligating $56,826.63 and finding eligible costs totaled $233,722.37.
On March 17, 2014, the Applicant appealed the deobligation of $56,826.63 and requested an additional $15,000.00 to cover the purchase of adjacent property it asserted was necessary to construct the road. The Applicant contended national permitting requirements, that ensured environmental compliance, mandated the SOW that was carried out, and stated the purchase of additional acreage was necessary to meet water runoff concerns. Moreover, the Applicant argued public safety concerns required additional work, such as guide rails, to ensure safe travel.
The Applicant’s engineer supported its arguments in an accompanying letter dated March 17, 2014. In addition, the engineer indicated it presented the road to the Department of Environmental Protection (DEP) as a secondary access road for the community because the portion of Tilbury Terrace Road damaged by the disaster was closed for more than six months. The engineer verified the Applicant would not be removing the road as it would be cost prohibitive and would limit the community to only one egress again, creating a public safety risk.
The Grantee forwarded the Applicant’s appeal with a cover letter dated December 16, 2014, acknowledged PW 5465 was written to create a temporary road for access while Tilbury Terrace Road was being repaired, and supported the Applicant’s appeal for additional funding. The Grantee asserted that the steep slopes and proximity to the tributary required construction of additional safety measures.
On May 11, 2016, FEMA prepared an eligibility determination memorandum finding that the Applicant did not complete the approved SOW for the temporary access road, did not notify FEMA of the changes to the SOW when it constructed a permanent road, nor request an improved project. As a result, FEMA found the Applicant precluded the Agency from carrying out its responsibility to evaluate the project for Environmental and Historic Preservation (EHP) compliance. Consequently, FEMA determined the completed work was not eligible for PA funding and deobligated all costs associated with PW 5465.
On June 6, 2016, FEMA sent the Grantee and the Applicant a Basic Request for Information (RFI), attaching the eligibility determination memorandum. FEMA noted it: (1) reviewed, conditioned, and approved the project as a temporary road, when the Applicant in fact constructed a permanent roadway without prior notification to FEMA; and (2) was not provided an opportunity to complete the required EHP review prior to the permanent road’s construction. FEMA requested any additional relevant information and confirmed that the first appeal determination would adjudicate issues raised by the Applicant in its first appeal as well as those raised by FEMA in the eligibility determination memorandum.
In July 2016, the Applicant responded to the Basic RFI by resubmitting its first appeal and engineer’s letter. The Grantee forwarded the documents to FEMA the following month. Afterward, the Applicant submitted numerous planning documents pertaining to the construction of PW 5465’s road. For instance, the Applicant submitted letters from its engineering firm confirming it was applying for a Water Obstruction and Encroachment permit and approval of coverage under a General National Pollutant Discharge Elimination System permit for a paved “secondary access road.” Additionally, the Applicant submitted plans of the completed paved road, which demonstrated a portion of the road contained four foot wide shoulders and included two concrete headwalls, drainage pipes at three locations, and a rip-rap lined swale.
In November 2016, FEMA transmitted a Final RFI to the Applicant and Grantee, asking for additional information to assist FEMA in evaluating the appeal. FEMA specifically alerted the Applicant that it lacked information establishing the work as eligible and afforded it the opportunity to submit additional relevant information within 30 days of the receipt of the Final RFI. The Applicant did not submit a response to the Final RFI.
On December 19, 2016, FEMA Region III’s Regional Administrator (RA) denied the appeal, determining the Applicant completed a SOW that FEMA previously denied, did not obtain prior approval for the change, and did not ensure FEMA the opportunity to consider EHP implications of the project. As a result, FEMA deobligated previously awarded funds in the amount of $233,722.37.
The Applicant filed a second appeal dated February 17, 2017 to argue: (1) it understood FEMA’s letter, dated August 21, 2012, to mean that if the Applicant wanted to advance the temporary road to a more permanent road, it would still be allowed funding in the amount of $235,000.00 (the initial cost estimate) and confirmed it “paved the roadway using its own funds and resources because it assumed the previously approved funding for the temporary roadway would remain valid;” (2) public safety concerns and Commonwealth regulations required installing a guide rail and other protective measures because the road had a steep gradient; (3) a federal and Commonwealth environmental permit required the scope of the project, regardless of whether the road was temporary or permanent in nature; and (4) it addressed all environmental and historic concerns through the federal and Commonwealth reviews, which closely mirror the National Environmental Policy Act (NEPA) review process.
The Applicant submitted a revised second appeal on February 22, 2017 that asserts those arguments, and points out: (1) PW 5464 was written as a Category C, permanent work project, and not as a Category B, emergency work project; and (2) PW 5465 made no mention of ever removing the temporary road. The Grantee forwarded the Applicant’s second appeal letters with a letter of support dated March 30, 2017.
Scope of Work
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 403 authorizes FEMA to “provide assistance essential to meeting immediate threats to life and property resulting from a major disaster.” This work is categorized as emergency work, which the Stafford Act defines as work performed to temporarily restore essential public facilities and services. As a result, FEMA has authority to fund emergency work constructing a temporary facility that did not exist predisaster when it is necessary to address a public health and safety threat. In contrast, Section 406(a)(1)(A) of the Stafford Act authorizes FEMA to make contributions “to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.” Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226, implementing the Stafford Act, provides that PA funds may be eligible for work that restores eligible facilities as they existed immediately prior to the disaster, and also for work that changes the predisaster construction of a facility if it is based on current applicable codes and standards. The work authorized by 44 C.F.R. § 206.226 is considered permanent work.
According to 44 C.F.R. § 13.30(d)(1), applicants must obtain the prior approval of the awarding agency whenever any revision of the scope or objectives of the project is anticipated. FEMA guidance further stipulates that “when a change in scope…is discovered, the applicant should notify the State as soon as possible” so that the State can forward the request to FEMA with a written recommendation.
First, the Applicant asserts the deobligation was an error because PW 5465 categorized the work as permanent work; but also concedes it understood PW 5465 was written as an award of funding for a temporary road. In fact, FEMA wrote PW 5465 in response to the Applicant’s request for a temporary access road while Tilbury Terrace Road was repaired for approximately 90-120 days. Consequently, the error on PW 5465 identifying the project as a permanent work project did not impact the mutual understanding of the grant. The Applicant and FEMA recognized the project was emergency work to temporarily restore access to the community for the 90-120 days that Tilbury Terrace Road was closed.
Moreover, federal regulation and PA policy prohibited FEMA from approving PA funding for the road as “permanent work,” as the facility did not exist prior to the disaster, and therefore, was impossible to restore to predisaster condition. For the same reason, the Applicant’s contention it completed the SOW in response to permitting requirements and regulations is of no consequence. Therefore, the work and associated costs are ineligible for funding under 44 C.F.R. § 206.226.
Next, the Applicant provides documentation of multiple actions not authorized in FEMA’s August 21, 2012 letter or PW 5465. First, the Applicant did not use land already available to it and instead purchased land from an adjacent property. Second, the Applicant constructed a permanent paved road rather than the approved temporary gravel road and placed four foot wide shoulders on part of the road instead of the approved two foot wide shoulders throughout. Third, the Applicant installed two concrete headwalls even though FEMA expressly denied these, affixed drainage pipes at three locations when FEMA only approved drainage pipes at two locations, and installed a rip-rap lined swale even though FEMA had not approved it in the Applicant’s original request. Lastly, the Applicant installed a concrete manhole, spillway, end-walls and outlet aprons, water valves, guide rails and street signs, none of which FEMA approved. As such, the Applicant completed permanent work that was beyond the temporary SOW approved.
The Applicant notified other federal and Commonwealth agencies of its design and plans for the permanent road so it could obtain the necessary permits prior to commencing construction. However, it never notified the Grantee or FEMA that it had constructed a permanent paved road until the project was complete and the final expenditure report was submitted. Consequently, the Applicant did not obtain prior approval from FEMA for the SOW change.
Finally, the Applicant asserts that it believed it could construct a permanent road and still receive the funding approved for the temporary road based on FEMA’s August 21, 2012 letter. This position is not compelling. The Grantee’s August 27, 2012 communication clearly notified the Applicant it needed to submit a request if it desired to construct a permanent road. As such, the
Applicant was required to receive prior approval pursuant to 44 C.F.R. § 13.30, knew of the requirement, and failed to abide by it.
FEMA finds that the Applicant significantly changed the SOW without providing notice to, or obtaining prior approval from the Agency. The Applicant also constructed a permanent facility that did not repair or replace a predisaster facility. For those reasons, the project is ineligible for PA funding.
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.  Actions initiated and/or completed without the required NEPA review may not be considered for funding.
Here, the REC clearly stated that any change to the approved SOW required a new review to ensure compliance with NEPA. Instead, the Applicant initiated and completed construction of the permanent road without notifying FEMA. As the work completed by the Applicant went beyond the approved SOW, this change necessitated a new NEPA review. The Applicant’s failure to abide by the conditions of the grant prevented FEMA from performing its federally mandated NEPA review prior to construction commencing. As such, the work is not eligible for PA funding.
Stafford Act § 705(c)
Section 705(c) of the Stafford Act bars FEMA from deobligating previously awarded funding if: “(1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.” FEMA issued FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, to implement these criteria.
The purpose of the grant in this instance was to build a temporary road with an aggregate surface, which met all environmental considerations, for approximately 90-120 days of use, while Tilbury Terrace Road was repaired. Instead, the Applicant built a permanent paved road without complying with the mandatory environmental review requirements and considerations, which violated the purpose of the grant. Accordingly, because the Applicant did not accomplish the purpose of the grant, FEMA is not prohibited from disallowing and deobligating the $233,722,37 in funding previously awarded. Consequently, the RA properly exercised her discretionary enforcement authority by deobligating all previously awarded funding for PW 5465. 
The Applicant changed the SOW without notice to or prior approval from FEMA. In so doing, it failed to comply with 44 C.F.R. § 13.30(d)(1) and to afford FEMA the opportunity to comply with NEPA. Consequently, the work is ineligible for PA. As the Applicant did not accomplish the purpose of the grant, Stafford Act § 705(c) does not prohibit FEMA from deobligating all previously awarded funding.
 Project Worksheet (PW) 5465, Plymouth Twp., Version 0, at 1 (Dec. 27, 2012).
 Email from Emergency Mgmt. Spec., Pa. Emergency Mgmt. System (Grantee) to Rep., Plymouth Twp. (Aug. 27, 2012; 10:46 AM).
 Id. (emphasis added).
 FEMA Record of Environmental Consideration (REC), at 1, 3 (Nov. 21, 2012).
 Letter from Sen. Eng’r, Pennoni Associates Inc. (Engineering Firm), to Emergency Mgmt. Spec., Grantee, at 1 (Mar. 17, 2014) [hereinafter Engineer’s Letter].
 Letter from Rep., Plymouth Twp., to Emergency Mgmt. Spec., Grantee (Mar. 17, 2014).
 Engineer’s Letter, at 1-2 (stating: (1) the National Pollutant Discharge Elimination System (NPDES) permitting requirements mandated emergency spillways, outlet aprons, Type D Endwall, and a Manhole, and that the NPDES permit was required because the design of the secondary access road resulted in an earth disturbance of more than one acre; (2) the Commonwealth’s Department of Environmental Protection (DEP) required a permit because the construction of the secondary access road resulted in runoff water going to a tributary of the Susquehanna River; (3) public safety necessitated signage and a guide rail; and (4) practical necessities required water valves).
 Id. at 2.
 FEMA Eligibility Determination Memorandum, Plymouth Twp., FEMA-4030-DR-PA (May 11, 2016).
 Letters from Rep., Engineering Firm, to Luzerne Cnty. Council, at 1 (Feb. 2, 2012).
 PW 5465, Version 2 (March 3, 2017).
 Letter from Rep., Plymouth Twp., to Ass’t. Admin. Recovery Directorate, FEMA, at 1-2 (Feb. 17, 2017) [hereinafter Applicant’s Second Appeal Letter 1] (also stating that adjacent roadway portions of Tilbury Terrace Road, not damaged in this disaster, may likely also fail in the future, and should this occur, the new road would be available as another point of access for the development).
 Id. at 2.
 Id. (providing letters to demonstrate the following agencies reviewed the project as part of the permit requirements: (1) Pa. Fish and Boat Commission (confirming several rare or protected freshwater mussel species were known from the vicinity of the project area but that the agency did not foresee significant adverse impacts from the project on the species); (2) U.S. Fish and Wildlife Service (commenting pursuant to the Endangered Species Act of 1973, and stating that the project would not have a significant adverse effect on the endangered bat species located within the range of the project); (3) Pa. Historic and Museum Commission, Bureau of Historic Preservation (noting a high probability that prehistoric and historic archaeological resources are located in the project area and then stating the activity should have no effect of the resources); and (4) Pa. Dept. of Natural Resources, Bureau of Forestry (stating that the Pa. Dept. of Conservation and Natural Resources screened the project for potential impacts to species and resources of concern under its responsibility, and found no impact anticipated). Additionally, the Applicant received a Wetland Inspection report in support of permit requirements, which stated there were no wetlands or streams present on the site).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988, Pub. L. No. 93-288, § 403(a), 42 U.S.C. § 5170b (2007).
 Stafford Act § 403(c)(6)(B); Second Appeal Analysis, Town of Bennington, FEMA-4022-DR-VT, at 7 (Sept. 15, 2015).
 Public Assistance Guide, FEMA 322, at 74 (June 2007) [hereinafter PA Guide] (confirming “[i]n cases where homes are inaccessible as a result of the damage, work to establish emergency access…” is eligible for PA funding as an emergency protective measure).
 Stafford Act § 406(a)(l)(A).
 PA Guide, at 29.
 Title 44 Code of Federal Regulations (44 C.F.R.) § 13.30(d)(1) (2010).
 PA Guide, at 140.
 Applicant’s Second Appeal Letter 1, at 1.
 National Environmental Policy Act (NEPA) of 1969, as amended, Pub. L. 91-190, 42 U.S.C. §§ 4331-4332 (1969); PA Guide, at 128.
 FEMA Environmental Policy Memo # 3, at 1 (May 3, 1996).
 Stafford Act § 705(c).
 Second Appeal Analysis, Office of Coastal Protection and Restoration, FEMA-4080-DR-LA, at 9 (Dec. 23, 2016) (citing FEMA Recovery Policy FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 4-7 (Mar. 31, 2016), and confirming the policy interprets 705(c) requirements as follows: (1) payment occurs when the recipient draws down funds obligated through SmartLink, regardless of whether the recipient has disbursed funds to the subrecipient, (2) the purpose of the grant was accomplished when the scope of work is completed and the Applicant has demonstrated compliance with post-award terms, and (3) costs are reasonable if, in their nature and amount, they do not exceed that which would be incurred by a prudent person under similar circumstances).
 44 C.F.R. § 13.43(a).