U.S. Department of Homeland Security
500 C Street, SW
Washington, DC 20472
Sep 09 2011
Kansas Division of Emergency Management
2800 Southwest Topeka Boulevard
Topeka, Kansas 66611-1287
Re: Second Appeal: Leavenworth Unified School District, Safe Room,
FEMA DR-1741-KS, HMGP Project No. 29
Dear Ms. Morgan:
This is in response to your letter dated May 16, 2011, to the Department of Homeland Security, Federal Emergency Management Agency (FEMA), regarding the City of Leavenworth Unified School District (Leavenworth USD) Safe Room Application. The Leavenworth USD requested that FEMA approve funding for the Safe Room project.
On June 23, 2009, the State submitted a sub-application on behalf of the Leavenworth USD to construct an 8,000 square-foot safe room at an estimated cost of $1,858,618 ($1 ,393,964 Federal share). FEMA Regional staff reviewed the application, including the design of the safe room, and determined that the project was eligible for funding under the Hazard Mitigation Grant Program.
Prior to obligating grants with Federal shares of $1 million or more, statute requires FEMA to notify Congress of the proposed award. On January 26,2010, the Regional staff submitted a Large Project Notification for the proposed project to FEMA Headquarters as the initial step in the Congressional notification process. Before the Congressional notification process was completed, FEMA implemented restrictions on funding disaster grants, such that funds for this project were not available for obligation until August 2010. Therefore, FEMA did not make a grant award for the proposed project.
In August 2010, the FEMA Regional staff learned from the State that Leavenworth USD began construction of the safe room in early February 2010 prior to final project approval. In a letter dated January 12, 2011, Bob Bisell, Regional Mitigation Division Director, notified the Kansas Division of Emergency Management (KDEM) that the Leavenworth USD safe room application was ineligible for funding because construction of the project began prior to final project approval. In a letter dated January 12, 2011, KDEM submitted an appeal to the FEMA Regional Administrator requesting approval for retroacative funding of the project. The Regional Administrator denied the appeal in a letter dated May 6, 2011. On May 16, 2011, KDEM submitted a second level appeal to FEMA Headquarters seeking to overturn the Regional Administrator's decision on the first appeal.
The Code of Federal Regulations, Title 44, Part 206.434(d)(2), (44 CFR 206.434(d)(2)) Eligibility, states in part " ... Activities for which implementation has already been initiated or completed are not eligible for funding." 44 CFR 206.439(c), Allowable Costs, states in part "Costs associated with implementation of the activity but incurred prior to grant award are not eligible. Therefore, activities where implementation is initiated or completed prior to award are not eligible and will not be reimbursed." There is no dispute that Leavenworth USD initiated construction of the safe room before FEMA awarded the grant. The issue is whether FEMA has discretion to fund the project when the project does not comply with program regulations. Regulations have the force of law. FEMA does not have discretion to waive the regulations.
Based on review of all information submitted with the appeal, I have determined that the Regional Administrator's decision on the first appeal is in accordance with program regulations. Therefore, the appeal is denied.
Please inform the Leavenworth USD of my determination. My determination is FEMA's final decision on this matter pursuant to 44 CFR 206.440, Appeals.
Sandra K. Knight, PhD, PE
Deputy Associate Administrator for Mitigation
cc: Beth Freeman, Regional Administrator FEMA Region VII