Other Federal Agency

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4574
Applicant	Gloucester County
Appeal Type	Second
PA ID#	015-99015-00
PW ID#	GMP 185326
Date Signed	2022-11-01T16:00:00

Summary Paragraph

During the incident period of August 4, 2020, heavy rains, strong winds, flooding and tornadoes from Tropical Storm Isaias impacted the state of New Jersey.  Gloucester County (Applicant) requested $214,785.93 in contract costs to repair a portion of Auburn Road.  On April 1, 2022, FEMA issued a Determination Memorandum denying claimed costs, finding that the Federal Highway Administration (FHWA) had the authority to restore Auburn Road.  Auburn Road was classified as a major collector Federal-aid highway by the U.S. Department of Transportation, making it a Federal-aid highway which falls under the FHWA’s Emergency Relief (ER) program.  The Applicant filed a first appeal, which the State of New Jersey, Division of State Police, Recovery Bureau (Recipient), forwarded with its endorsement.  The FEMA Region II Regional Administrator noted that where another federal agency has the authority to restore facilities damaged by an event, disaster assistance will not be made available.  FEMA found that FHWA’s ER program gives FHWA authority to repair Federal-aid roads, and FEMA policy makes clear that PA for these facilities is not available, even if the ER program is not activated or if an applicant requested assistance but FHWA did not provide funding.  FEMA found that Auburn Road was a Federal-aid highway, FHWA has specific authority to fund the repairs, and costs incurred for repairs to the road were not eligible for PA funding.  The Applicant filed a second appeal.  The Applicant requests that FEMA reconsider its position, and argues that the work to repair the roadway was emergency work, rather than permanent work.  The Applicant states that the importance of the roadway to residents and commuters required that repairs were made quickly.  The Recipient forwarded the Applicant’s appeal with its endorsement.

Authorities and Second Appeals

• Stafford Act §§ 406(a)(1)(A), 102(10).
• 44 C.F.R. §§ 206.221(h), 206.226(a)(1).
• PAPPG, at 135, 169.

Headnotes

• The Stafford Act defines a public facility to include any non-Federal-aid street, road, or highway owned by a local government.  Work to repair roads that are under the specific authority of FHWA to restore are not eligible for PA funding.
  • The highway is a major collector Federal-aid highway and therefore not an eligible facility.  As FHWA has authority to repair the road, the work is also ineligible for PA funding.

Conclusion

FEMA finds that Auburn Road is a major collector Federal-aid highway and the FHWA has specific authority to fund repairs for disaster-related damage.  Therefore, the facility and work are not eligible for PA funding.

Appeal Letter

Appeal Analysis

Background

On August 4, 2020, heavy rains, strong winds, flooding and tornadoes from Tropical Storm Isaias impacted the State of New Jersey.  Gloucester County (Applicant) requested $214,785.93 in Public Assistance (PA) funding for contract costs to repair a section of Auburn Road.  However, on April 1, 2022, FEMA issued a Determination Memorandum denying funding because the road was classified as a major collector Federal-aid highway by the U.S. Department of Transportation, which falls under the Federal Highway Administration’s (FHWA) Emergency Relief (ER) program.  FEMA found, therefore, that Auburn Road was not eligible for PA funding.

First Appeal

The Applicant submitted its first appeal in a letter dated May 5, 2022.  The Applicant stated that it was made aware by its Public Works Department that the roadway repairs did not meet the $700,000.00 threshold for funding under FHWA, and that it was advised by FWHA’s New Jersey Division office to seek reimbursement through FEMA.  The Applicant provided its email communications with FHWA in support of its claim, which also stated that the deadline to apply for FHWA’s ER funding had passed.  The State of New Jersey, Division of State Police, Recovery Bureau (Recipient) forwarded the first appeal, with its support of the Applicant’s position, in a letter dated May 9, 2022.  The Recipient requested that FEMA adjudicate the appeal positively.

On July 8, 2022, the Region II Regional Administrator denied the appeal, stating that where another federal agency has the authority to restore facilities damaged by an event, disaster assistance will not be made available.  FEMA found that FHWA’s ER Program gives FHWA the authority to repair Federal-aid roads, and FEMA policy makes clear that PA for these roads is not available, even if the ER program is not activated or if an applicant requested assistance but FHWA did not provide funding.  FEMA found that, as Auburn Road was a Federal-aid highway, FHWA had specific authority to fund the repairs, and work to repair the road was not eligible for PA funding.

Second Appeal

In its second appeal, dated July 19, 2022, the Applicant requests that FEMA reconsider its position, and contends that while FEMA cited to its permanent work regulations and policy to deny funding, the work to repair the roadway was emergency work, rather than permanent work.  The Applicant states that the importance of the roadway to residents and commuters required that repairs were made quickly.  The Applicant includes a letter from the State of New Jersey Department of Transportation explaining that the costs of repairs to Auburn Road do not meet the threshold criteria for FHWA’s ER Program.  The Recipient forwarded the Applicant’s appeal with its endorsement.

 

Discussion

FEMA may provide funding for the repair of public facilities damaged or destroyed as a result of a major disaster.[1]  A “public facility” includes “any non-Federal aid street, road, or highway” owned by a State or local government.[2]  FEMA PA funding is generally not available when another federal agency has the specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.[3]  Congress has authorized FHWA to repair, under the ER Program, Federal-aid routes which include highways on the Federal-aid highway system and all other public roads not classified as local roads or rural minor collectors that suffer serious damage as a result of a natural disaster.[4] 

Work performed under an exigent circumstance that restores the predisaster design and function of the facility in accordance with codes and standards is permanent, not emergency work.[5]  Permanent work to restore roads is eligible unless restoration is under the specific authority of another federal agency, such as FHWA.[6]  Federal-aid routes are not eligible for permanent work funding even if the FHWA ER program is not activated or if the program is activated but FHWA does not provide funding for the work.[7]  Similar to permanent work, emergency repair of Federal-aid highways is also ineligible if FHWA has the specific authority to provide assistance.[8] 

Here, the Applicant does not dispute that Auburn Road is a major-collector Federal-aid highway.  Therefore, it is not an eligible public facility.  Additionally, the work is ineligible as FHWA has specific authority to fund repairs for disaster-related damage to major collector Federal-aid routes.  Because the work was conducted to repair the facility to its predisaster design and function, it is permanent, not emergency work.[9]  Even though FHWA did not provide funding for the work under its ER program, it remains ineligible for PA funding.  Importantly, it would still be ineligible as emergency work because FHWA has the authority to repair a major collector Federal-aid highway under its ER program, and emergency repair of a facility is ineligible if another federal agency has the specific authority to provide assistance for the facility.[10]  Therefore, Auburn Road is not an eligible facility and the work to restore it is also ineligible. 

 

Conclusion

FEMA finds that Auburn Road is a major collector Federal-aid highway and FHWA has specific authority to fund repairs for disaster-related damage.  Therefore, the facility and work are not eligible for PA funding.

 

[1] Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406(a)(l)(A), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(A) (2018).

[2] Stafford Act § 102(10)(B), 42 U.S.C. § 5122(10)(B); Title 44, Code of Federal Regulations (44 C.F.R.) § 206.221(h) (2020).

[3] 44 C.F.R. § 206.226(a)(1).

[4] See 23 U.S.C. § 125(a); Public Assistance Program and Policy Guide, FP 104-009-2 at 169 (June 1, 2020) [hereinafter PAPPG].

[5] PAPPG, at 135.

[6] Id. at 169 (although an exception exists for Tribal governments, the exception does not apply in this appeal).

[7] Id.

[8] Id. at 135 (although an exception exists for Tribal governments, the exception does not apply in this appeal).

[9] See PAPPG, at 135. 

[10] Id.