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Brownington, Manchester, and Pittsford, VT - Three Flood-related projects

Appeal Brief

ApplicantVermont Department of Public Safety, Division of Emergency Management and Homeland Security
Appeal Type2nd
Date Signed

1st Appeal

  • Issue
    • FEMA Region 1 denied applications for 14 projects spread across ten communities that had no hazard mitigation plan. The Region provided time for plan submittals by setting a deadline, but some subapplicant communities did not submit a plan. When the State of Vermont appealed, Region 1 denied the appeal.
    • The State argued that a local hazard mitigation plan is required by HMGP regulations and guidance to be submitted at time of award, not application submission, and that setting a deadline for submitting planning grant applications is not in the best interest of meaningful and cost effective hazard mitigation.
  • Reason for Denial
    • Approval of HMGP project applications requires subapplicant communities to have in place a local hazard mitigation plan for eligibility.
  • Reference(s)
    • 44 CFR 206.440 Appeals; 44 CFR 201 and 206 Local Hazard Mitigation Plan Requirement; HMA Guidance (2011), Part III, D.5.2 Conformance with Hazard Mitigation Plans

2nd Appeal

  • Issue
    • Region 1 extended the original deadline after denying the first appeal, allowing for more communities to submit plans but not all.
    • The State sent a second appeal which included three communities remaining of the original ten.
  • FEMA Findings
    • Three communities did not submit local hazard mitigation plans by the extended deadline set by the Regional Office.
    • The Regional Office appropriately disapproved the communities' projects.
    • The original appeal made by Region 1 was upheld.
  • Reference(s)
    • 44 CFR 206.440 Appeals; 44 CFR 201 and 206 Local Hazard Mitigation Plan Requirement; HMA Guidance (2011), Part III, D.5.2 Conformance with Hazard Mitigation Plans

Appeal Letter

Christopher HerrickDirectorDivision of Emergency Managementand Homeland SecurityVermont Department of Public Safety45 State DriveWaterbury, Vermont 05671-1300 RE:   Second Appeal: for the towns of Brownington, Manchester, and Pittsford, Vermont, FEMA-DR-4022-VT Dear Mr. Christopher Herrick: This is in response to your letter dated January 26, 2016, which transmitted the referenced appeal on behalf of the Vermont Department of Public Safety, Division of Emergency Management and Homeland Security (DEMHS).  The DEMHS is appealing the FEMA Regional Office’s decision to deny three projects from the towns of Brownington, Manchester, and Pittsford due to lack of approved and adopted local hazard mitigation plans. Background: Tropical Storm Irene impacted the State of Vermont and resulted in a Major Disaster Declaration on September 1, 2011.  Based on the damages assessed, $34,350,163 was made available for the Hazard Mitigation Grant Program (HMGP) for Vermont.  To date, 140 applications have been funded totaling $24,156,032.  This includes $20,303,249 obligated for regular projects, $1,525,598 for 5% initiative projects (mitigation projects for which it may be difficult to conduct a standard benefit cost analysis to prove cost-effectiveness) and $2,327,185 for planning applications.A Joint Field Office (JFO) was open for approximately two years and was staffed by FEMA, who provided technical assistance to the State and local communities.  Additionally, FEMA Region I utilized $185,000 in technical support funding to support the State with project and plan development. FEMA Headquarters also deployed a member of its staff to the JFO to assist with planning and project application submission.The State of Vermont has been granted eight application period extensions, which added two years to the standard one year (12 months) application period. These extensions extended the application period to September 1, 2014.  This makes the DR-4022 HMGP application period one of the longest HMGP application periods in program history. On July 30, 2014, the State of Vermont, the Grant Recipient, submitted 14 project applications to the HMGP on behalf of ten communities that did not have an approved local hazard mitigation plan in accordance with Title 44 Code of Federal Regulations Part 201 and Part 206.  After receipt of these 14 project applications, FEMA Region I set a deadline of May 26, 2015 for the Recipient to submit local hazard mitigation plans for the ten communities.  These plans would indicate to FEMA the communities’ commitment to developing FEMA approved local hazard mitigation plans before receiving Hazard Mitigation Assistance (HMA) funds.Two of the ten applicants submitted local hazard mitigation plans to FEMA, which allowed for the approval of four project applications.  One subapplicant was granted extraordinary circumstances for the local hazard mitigation plan requirement for its single project application.  The Region made an eligibility determination denying the nine additional project applications on July 15, 2015.  The State of Vermont followed this with its first appeal sent on August 12, 2015 stating that the language written in the HMGP regulations and guidance requires a local hazard mitigation plan at time of award, not application submission, and that setting a deadline for submitting planning grant applications was not in the best interest of accomplishing meaningful and cost effective hazard mitigation.The State’s first appeal was denied, but the deadline for submitting planning grant applications was extended to September 1, 2015.  This allowed two of the seven remaining communities to submit their planning grant applications as well as four project applications, which were then removed from the list of denied projects. The State sent a second appeal to FEMA in January, 2016, which included three of the five remaining communities (Brownington, Manchester and Pittsford).   Two of these communities (Brownington, and Pittsford) had submitted local hazard mitigation plans after the first appeal was submitted, but both require significant revisions before they can be approved.  This left three communities not in compliance with the hazard mitigation plan requirement. Analysis: The State of Vermont submitted applications for projects in three communities that did have approved local hazard mitigation plans at the time of application submittal.  FEMA Region I provided two extensions to allow for the submission of local hazard mitigation planning grant applications.  The State did not submit the hazard mitigation planning grant applications for the communities that were lacking a local hazard mitigation plan by the extended deadline of September 1, 2015. Title 44 CFR 201.6(a)(1) states “A local government must have a mitigation plan approved pursuant to this section in order to receive HMGP project grants.”  HMA Guidance (2011), Part III, D.5.2. Conformance with Hazard Mitigation Plans “Projects submitted for consideration for HMA funding must be consistent with the goals and objectives identified in the current, FEMA-approved State or Tribal (Standard or Enhanced) Mitigation Plan and local or Tribal mitigation plan for the jurisdiction in which the activity is located.”FEMA Region 1 has the discretion to set deadlines for the submission of [approvable] mitigation plans and to deny project subapplications if the deadline is not met.  This is necessary for the Region determine if a project submitted for HMGP funding meets the minimum eligibility criteria, specifically for conformance with the local hazard mitigation plan requirement.  It also enables FEMA to administer HMGP efficiently and in a timely manner.  Because three communities did not submit local mitigation plans by the extended September 1, 2015 deadline set by the Region, the Regional Office appropriately disapproved the communities’ projects. Conclusion: I have reviewed all documentation submitted by DEMHS in connection with this appeal and have determined that the original appeal decision made by the FEMA Region I Office stands.  By copy of this letter, I request the Regional Administrator to take appropriate action to implement this determination. My determination is the final decision on this issue in accordance with 44 CFR 206.440, Appeals. Sincerely, Michael M. Grimm Assistant Administrator for MitigationFederal Emergency Management Agencycc:Paul Ford (via email)Regional AdministratorFEMA Region I      Dean Savramis (via email)Director    Mitigation DivisionFEMA Region I

Appeal Analysis

The State of Vermont submitted applications for projects in three communities that did have approved local hazard mitigation plans at the time of application submittal.  FEMA Region I provided two extensions to allow for the submission of local hazard mitigation planning grant applications.  The State did not submit the hazard mitigation planning grant applications for the communities that were lacking a local hazard mitigation plan by the extended deadline of September 1, 2015.   Title 44 CFR 201.6(a)(1) states “A local government must have a mitigation plan approved pursuant to this section in order to receive HMGP project grants.”  HMA Guidance (2011), Part III, D.5.2. Conformance with Hazard Mitigation Plans “Projects submitted for consideration for HMA funding must be consistent with the goals and objectives identified in the current, FEMA-approved State or Tribal (Standard or Enhanced) Mitigation Plan and local or Tribal mitigation plan for the jurisdiction in which the activity is located.”  FEMA Region 1 has the discretion to set deadlines for the submission of [approvable] mitigation plans and to deny project subapplications if the deadline is not met.  This is necessary for the Region determine if a project submitted for HMGP funding meets the minimum eligibility criteria, specifically for conformance with the local hazard mitigation plan requirement.  It also enables FEMA to administer HMGP efficiently and in a timely manner.  Because three communities did not submit local mitigation plans by the extended September 1, 2015 deadline set by the Region, the Regional Office appropriately disapproved the communities’ projects.

Last updated Jul 26, 2016

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