Upper Fords Creek Road
Appeal Brief
Appeal Letter
Citation: FEMA-1102-DR-ID; Clearwater County, Upper Fords Creek Road; DSRs 67415, 37510, 37511, 27207, 25346
Cross-reference: Cost Overrun, Construction-Induced Maintenance, Collateral Damage
Summary: Rain and warmer than normal temperatures combined to melt a two and one half feet to six feet snow pack resulting in severe flooding that caused washouts along Upper Fords Creek Road in Clearwater County during late January and early February of 1996. FEMA approved DSR 67415 in the amount of $507,231 to repair the washouts. In early 1997, Region X staff requested a TAC to perform an analysis of an $845,387 overrun of DSR 67415 reported by the County. FEMA approved DSRs 37510 and 37511 based on the TACs analysis. DSR 37510 was for $504,377 for eligible cost overruns while DSR 37511 was to summarize $342,173 worth of ineligible overruns. In mid-July 1997, FEMAs Office of the Inspector General seized the Countys records for this disaster. Work resumed in mid-July 1999 and over the following months, FEMA worked with the State and the County on a number of issues and subsequently approved DSRs 27207 and 25436 for $227,147 and $225,917, respectively. The County appealed FEMAs determination of ineligibility for $96,787 worth of road strengthening costs on the out-of-scope segments of roadway in a letters dated February 6, 2001 and April 19, 2001, stating that the costs were a direct result of construction-induced maintenance. The Acting Regional Director denied the appeal because the costs to strengthen out-of-scope segments of road were undertaken by the County to address a lack of maintenance on non-disaster damaged sections of Upper Fords Creek Road. Also, the Countys appeal was not submitted in a timely manner. The County submitted its second appeal on October 26, 2001. The State supports the Countys appeal for $96,787.
Issues: 1.) Are the claimed costs eligible?
2.) Did the County submit its appeal within the regulatory timeframe for submitting appeals?
Findings: 1.) Yes. The County acted prudently in strengthening the roadway as to avoid delay in repairing disaster-related damages.
2.) Yes. The County submitted its appeal within 60 days of the final eligibility determination.
Rationale: 44 CFR §206.204
Appeal Brief
| Disaster | 1102-DR-ID |
| Applicant | Clearwater County |
| Appeal Type | Second |
| PA ID# | 035-00000 |
| PW ID# | 67415, 37510, 37511, 27207, 25346 |
| Date Signed | 2002-10-23T04:00:00 |
2.) Did the County submit its appeal within the regulatory timeframe for submitting appeals?
2.) Yes. The County submitted its appeal within 60 days of the final eligibility determination.
Appeal Letter
October 23, 2002
Mr. Clark D. Meek
Deputy State Director
State of Idaho, Military Division
Bureau of Disaster Services
4040 Guard Street
Boise, Idaho 83705-5004
Re: Second Appeal Clearwater County, PA ID 035-00000, Upper Fords Creek Road, FEMA-1102-DR-ID, Damage Survey Reports (DSRs) 67415, 37510, 37511, 27207, 25346
Dear Mr. Meek:
This letter is in response to a December 6, 2001, letter forwarding the referenced second appeal on behalf of Clearwater County (County). The County has requested that the Federal Emergency Management Agency (FEMA) reconsider its determination of ineligibility concerning work items associated with DSR 25346. The amount requested is $96,787.
In late January and early February of 1996, rain and above normal temperatures combined to melt a deep snow pack resulting in severe flooding that caused washouts along Upper Fords Creek Road in Clearwater County. The County normally prohibits heavy traffic on this road during this time of year. However, citizens and emergency vehicles needed access. Thus, the County proceeded to make the repairs to the damaged portions of the road, and allowed heavy construction vehicles to use the road. The heavy construction traffic and the saturated roadbed combined to deteriorate sections of the road not damaged by the disaster event. FEMA approved DSR 67415 on June 26, 1996, for $507,231 to repair the damaged sections caused by the event. FEMA used a Technical Assistance Contractor (TAC) to analyze an $845,387 overrun in early 1997. Subsequently, FEMA approved DSR 37510 in the amount of $504,377 for eligible overruns and DSR 37511 in the amount of $342,173 for ineligible overruns.
FEMAs Office of the Inspector General seized the Countys records for this disaster in July 1997, and effectively halted work for approximately two years. Work resumed in July 1999 and FEMA approved DSR 27207 on June 12, 2000, in the amount of $227,147 for additional paving and surfacing costs. On February 22, 2001, FEMA approved DSR 25346 for $225,917 to reinstate portions of the eligible costs that had been disallowed on earlier DSRs. The County submitted its first appeal on February 6, 2001, stating that the $96,787 for aggregate and geo-technical fabric used to strengthen the road should have been eligible. The Acting Regional Director denied the appeal because of a lack of maintenance by the County on the sections damaged by the construction traffic and because the appeal was not submitted in a timely manner.
The County has submitted a request for reconsideration of the Regional Directors determination on the first appeal. Title 44 CFR §206.223(a)(1) states that damage must be a direct result of the disaster event. However, it appears the section damaged by the construction traffic was unavoidable in repairing the disaster-damaged sections. Also, engineers from the United States Forest Service assisted the County in repairing the roads, as they were familiar with the requirements to build, reconstruct, and restore roads in the County. Based on these observations, it appears the County acted prudently in repairing and strengthening the road so as to allow the movement of the heavy construction traffic to accomplish the repairs to the disaster-damaged sections of the road. The cost to repair damage that results from the accomplishment of eligible work is also eligible for reimbursement as an expense incidental to the eligible work.
During the meeting in July 1999, FEMA and the State instructed the County to work toward closing out the eligible projects, and any issues that arose would be handled as they came up. If they couldnt be resolved, then the County could pursue the appeal process upon the final eligibility determination. The final eligibility determination was presented to the County on December 8, 2000, and its first appeal was submitted on February 6, 2001, within the regulatory time allowed for appeals.
Based on these reasons, I am approving the appeal. By copy of this letter, I ask the Regional Director to prepare a DSR for $96,787 to implement my decision.
Please inform the applicant of my determination. My decision constitutes the final decision on this matter in accordance with Title 44 CFR §206.206.
Sincerely,
/S/
John R. DAraujo, Jr.
Assistant Director
Response and Recovery Directorate
cc: John Pennington
Regional Director
FEMA Region X
Mr. Clark D. Meek
Deputy State Director
State of Idaho, Military Division
Bureau of Disaster Services
4040 Guard Street
Boise, Idaho 83705-5004
Re: Second Appeal Clearwater County, PA ID 035-00000, Upper Fords Creek Road, FEMA-1102-DR-ID, Damage Survey Reports (DSRs) 67415, 37510, 37511, 27207, 25346
Dear Mr. Meek:
This letter is in response to a December 6, 2001, letter forwarding the referenced second appeal on behalf of Clearwater County (County). The County has requested that the Federal Emergency Management Agency (FEMA) reconsider its determination of ineligibility concerning work items associated with DSR 25346. The amount requested is $96,787.
In late January and early February of 1996, rain and above normal temperatures combined to melt a deep snow pack resulting in severe flooding that caused washouts along Upper Fords Creek Road in Clearwater County. The County normally prohibits heavy traffic on this road during this time of year. However, citizens and emergency vehicles needed access. Thus, the County proceeded to make the repairs to the damaged portions of the road, and allowed heavy construction vehicles to use the road. The heavy construction traffic and the saturated roadbed combined to deteriorate sections of the road not damaged by the disaster event. FEMA approved DSR 67415 on June 26, 1996, for $507,231 to repair the damaged sections caused by the event. FEMA used a Technical Assistance Contractor (TAC) to analyze an $845,387 overrun in early 1997. Subsequently, FEMA approved DSR 37510 in the amount of $504,377 for eligible overruns and DSR 37511 in the amount of $342,173 for ineligible overruns.
FEMAs Office of the Inspector General seized the Countys records for this disaster in July 1997, and effectively halted work for approximately two years. Work resumed in July 1999 and FEMA approved DSR 27207 on June 12, 2000, in the amount of $227,147 for additional paving and surfacing costs. On February 22, 2001, FEMA approved DSR 25346 for $225,917 to reinstate portions of the eligible costs that had been disallowed on earlier DSRs. The County submitted its first appeal on February 6, 2001, stating that the $96,787 for aggregate and geo-technical fabric used to strengthen the road should have been eligible. The Acting Regional Director denied the appeal because of a lack of maintenance by the County on the sections damaged by the construction traffic and because the appeal was not submitted in a timely manner.
The County has submitted a request for reconsideration of the Regional Directors determination on the first appeal. Title 44 CFR §206.223(a)(1) states that damage must be a direct result of the disaster event. However, it appears the section damaged by the construction traffic was unavoidable in repairing the disaster-damaged sections. Also, engineers from the United States Forest Service assisted the County in repairing the roads, as they were familiar with the requirements to build, reconstruct, and restore roads in the County. Based on these observations, it appears the County acted prudently in repairing and strengthening the road so as to allow the movement of the heavy construction traffic to accomplish the repairs to the disaster-damaged sections of the road. The cost to repair damage that results from the accomplishment of eligible work is also eligible for reimbursement as an expense incidental to the eligible work.
During the meeting in July 1999, FEMA and the State instructed the County to work toward closing out the eligible projects, and any issues that arose would be handled as they came up. If they couldnt be resolved, then the County could pursue the appeal process upon the final eligibility determination. The final eligibility determination was presented to the County on December 8, 2000, and its first appeal was submitted on February 6, 2001, within the regulatory time allowed for appeals.
Based on these reasons, I am approving the appeal. By copy of this letter, I ask the Regional Director to prepare a DSR for $96,787 to implement my decision.
Please inform the applicant of my determination. My decision constitutes the final decision on this matter in accordance with Title 44 CFR §206.206.
Sincerely,
/S/
John R. DAraujo, Jr.
Assistant Director
Response and Recovery Directorate
cc: John Pennington
Regional Director
FEMA Region X
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