EHP and Other Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4469
Applicant	Hutchinson (County)
Appeal Type	Second
PA ID#	067-99067-00
PW ID#	GMP 129976
Date Signed	2022-06-29T16:00:00

Summary Paragraph

Severe storms damaged Hutchinson County’s (the Applicant’s) Harvey Wall Bridge (Facility) in September 2019.  The Applicant completed repairs to the Facility in November 2019.  FEMA found several violations of Environmental and Historic Protection (EHP) laws during its review of the project, including that the Applicant commenced work and disturbed archaelogocially sensitive ground without prior consultation with its State Historic Preservation Office (SHPO).  FEMA denied funding for the project as a result of these violations.  The Applicant appealed, arguing that it had not violated EHP laws and revising its request to include only those costs not tied to the disturbance of the sensitive ground.  FEMA denied the appeal, finding that the Applicant violated EHP laws and deprived FEMA of the opportunity to ensure the project complied with EHP laws by commencing work before consulting with the SHPO.  FEMA further found that the violation barred funding of the project as a whole.  The Applicant submitted a second appeal, again asking for those costs not tied to the EHP violation. 

Authorities and Second Appeals

• Stafford Act § 316.
• National Historic Preservation Act § 106.
• 36 C.F.R. § 800.4.
• 44 C.F.R. § 206.220.
• PAPPG at 85, 108, 166.
• Metro. St. Louis Sewer Dist., FEMA-4250-DR-MO, at 3.

Headnotes

• FEMA must complete all necessary EHP reviews before an applicant starts work.  When an applicant initiates or completes work on a project before FEMA is able to conduct the necessary EHP compliance review, the work generally is not eligible for PA funding.
  • The Applicant disturbed archaeologically sensitive ground in the course of completing its repairs prior to consultation with the SHPO, as was required by the National Historic Preservation Act, preventing FEMA from completing its required EHP compliance review.

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work on its project.  Accordingly, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 9-26, 2019, South Dakota experienced severe storms, tornadoes, and flooding, resulting in a major disaster declaration on November 18, 2019.  Hutchinson County (Applicant) claimed damage to the Harvey Wall Bridge (Facility) and FEMA developed Grants Manager Project 129976 to document the repair work to the facility.  The claimed damage included erosion of base and subbase material on the approach road, scouring of the asphalt, erosion of the soil embankments and supporting rip rap, and damage to the abutments, footings, and guardrail.  The Applicant completed the repair work on November 27, 2019, at a cost of $417,095.43.

During its Environmental and Historic Preservation (EHP) review, FEMA determined that the Applicant, in the course of its work, disturbed approximately eight acres of archaeologically sensitive ground without prior consultation with its State Historic Preservation Office (SHPO).  FEMA found that the disturbances, including excavation of an adjacent area as a source for material for the project (the “borrow pit”), creation of an access road to the borrow pit, and excavation and grading in the floodplain, were not covered under the Programmatic Allowances of the South Dakota Section 106 Programmatic Agreement.  FEMA determined that the project therefore did not comply with the National Historic Preservation Act (NHPA).  FEMA further determined that the Applicant violated the Clean Water Act, because it did not obtain a Construction Stormwater General Permit for the project, nor did it develop a Stormwater Pollution Prevention Plan.  Finally, FEMA determined the project did not comply with Executive Order 11988, regarding floodplain management, because the project was completed before FEMA could notify the public for input or conduct an alternatives analysis, and the Applicant did not complete a hydrologic and hydraulic evaluation.  For these reasons, FEMA denied funding for the project on March 22, 2021.

First Appeal

The Applicant appealed on May 18, 2021, requesting FEMA obligate $417,095.43 for the repairs to the Facility.  The Applicant argued that it did not violate the NHPA, because the borrow pit was smaller than the threshold for which a permit is required.  The Applicant stated it did not release any pollutants into the water during the project.  The Applicant stated that it obtained a floodplain permit after it learned of the permit requirement, and that the rip rap was replaced without any disturbance to the slope of upstream or downstream banks.  The South Dakota Office of Emergency Management (Grantee) forwarded the appeal with a letter of support on June 4, 2021.

FEMA issued a Request For Information (RFI) to the Applicant on September 23, 2021, seeking any documentation that could demonstrate “the borrow pit was an approved or certified source or that the Applicant consulted with the SHPO prior to its excavation of material from the borrow pit.”[1]  The Applicant responded to the RFI on October 18, 2021, revising its request from the first appeal to seek $193,825.85 in costs for rip rap, rock, and cement for the piling and abutments, and omitting the costs associated with the borrow pit.[2]  The Applicant provided cost documentation with its response, but acknowledged “the required permits were not obtained” and did not provide documentation of any prior approval or certification of the borrow pit.[3]

On February 1, 2022, the Regional Administrator for FEMA Region VIII denied the Applicant’s appeal.  FEMA stated that the Applicant completed the repair work, including the creation of a borrow pit from which materials for the work were taken, without prior consultation with the SHPO.  FEMA found that this deprived FEMA of the opportunity to comply with Section 106 of the NHPA, which requires consultation with the SHPO before disturbing archaeologically sensitive ground.  FEMA determined that the Applicant’s request for the costs of rip rap, rock, and cement could not be considered separately from the project as a whole; the violation of the NHPA for the borrow material therefore barred Public Assistance (PA) funding for the project.

Second Appeal

The Applicant, in a second appeal dated March 30, 2022, requests approval of $193,825.85 for costs of materials, including rip rap, rock, and cement, for repairs to the Facility.  The Applicant states that this amount represents the costs of the project except for the costs of the materials taken from the borrow pit that comprise the violation of the NHPA on which FEMA’s denial was based.  The Grantee forwarded the appeal to FEMA with a letter expressing its support on

April 1, 2022.

 

Discussion

FEMA must review each PA project to ensure the work complies with applicable Federal EHP laws, including section 106 of the NHPA, and their implementing regulations.[4]  Section 106 of the NHPA requires FEMA to consider the effects a project will have on historic properties and provide the Advisory Council on Historic Preservation the opportunity to comment on the effects of the project.[5]  Also, NHPA section 106 and Title 36 of the Code of Federal Regulations, Part 800, mandate that FEMA identify historic properties and cultural resources that may be affected by FEMA-funded activities, evaluate the impact of proposed work on the properties, and consult with the SHPO and other interested parties prior to the start of construction.[6]  The Applicant must make every effort to afford FEMA the opportunity to perform EHP reviews prior to the start of construction for any permanent work project.[7]  Proceeding with permanent work before FEMA completes EHP reviews jeopardizes PA funding for the entire project.[8]

The Applicant commenced and completed the repair work on the Facility without affording FEMA the opportunity to perform its required EHP review.  The excavation of the adjacent borrow pit was not covered under the programmatic allowances of the South Dakota NHPA section 106 Programmatic Agreement, and the Applicant did not consult with its SHPO prior to the start of construction.  The project, therefore, does not comply with Section 106 of the NHPA.  FEMA cannot provide PA funding to projects that do not comply with Federal EHP laws.  The Applicant’s request for funding the cost of materials not sourced from the borrow pit must be denied, as they are part of the same noncompliant project.

 

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work on its project.  Accordingly, the appeal is denied.

 

 

[1] Letter from Recovery Div. Dir., FEMA Region VIII Pub. Assistance Div., to Emps., Hutchinson Cnty. (Applicant) and Recovery & Mitigation Manager, S.D. Office of Emergency Mgmt. (Grantee), Request For Information (RFI), at 1 (Sept. 23, 2021).

[2] Letter from Emps., Applicant, to Recovery & Mitigation Manager, Grantee, at 1 (Received by FEMA Oct. 18, 2021).

[3] Id. at 2.

[4] Public Assistance Program and Policy Guide, FP 104-009-2, at 166 (Apr. 1, 2018) [hereinafter PAPPG]. 

[5] Id.

[6] National Historic Preservation Act § 106, 54 United States Code (U.S.C.) § 306108 (2018); Title 36 Code of Federal Regulations (C.F.R.) § 800.4 (2019).

[7] PAPPG, at 85.

[8] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 316, 42 U.S.C. § 5159 (2018); Title 44 C.F.R. § 206.220 (2018); PAPPG, at 85, 108; see also FEMA Second Appeal Analysis, Metro. St. Louis Sewer Dist., FEMA-4250-DR-MO, at 3 (Mar. 22, 2022) (FEMA appropriately deobligated funding where work was completed without affording FEMA an opportunity to determine EHP compliance in consultation with the SHPO.).