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Improved Project; National Environmental Policy Act
Appeal Brief
Appeal Letter
Citation: FEMA-1203-DR-CA; City of San Diego, Damage Survey Reports (DSRs) 37461, 39095
Cross-reference: Improved Project; National Environmental Policy Act
Summary: Flooding impacted the State of California in the late winter/early spring of 1998, resulting in major disaster declaration FEMA-1203-DR-CA on February 8, 1998. As a result, the Federal Emergency Management Agency (FEMA) prepared DSR 37461 on February 18, 1999, for $114,731 for the City of San Diego (Applicant) to repair floodwater damage to a paved parking lot, corrugated metal pipe storm drain, earthen embankment, and related facilities in the area of Balboa Park known as Inspiration Point. Included in the DSR was $39,115 in hazard mitigation funding for slope protection, different pipe material, and pipe over sizing. The Applicant claimed an overrun of $71,416 on the final inspection report as a result of improvements and/or project change orders. FEMA prepared DSR 39095 on January 21, 2003, to de-obligate $114,731 because the Applicant did not get prior approval from the Governors Office of Emergency Services (OES) or FEMA for the improved project prior to construction and completion. On April 9, 2003, the Applicant submitted a first appeal seeking reimbursement for $111,359 for the approved scope of work, excluding the additional $74,788 for modifications to the project design it originally claimed. The FEMA Region IX Director denied the appeal on January 18, 2004, because the Applicant did not notify OES or FEMA prior to starting the improved project. Therefore, FEMA did not have the opportunity to review the project for historical and environmental clearances prior to construction. The Applicant submitted its second appeal on March 4, 2004, claiming that the reconstruction of the washed out slope and adjacent parking lot was within the same project area and footprint as the original facility. It stated that only minor changes were made within the parking lot to prevent another overflow in a future disaster. OES supports the Applicants appeal for $111,359.
Issues: Is the improved project eligible for funding?
Findings: No. The Applicant did not notify OES or FEMA prior to construction, precluding OES approval of the improved project and preventing FEMA from completing the necessary National Environmental Policy Act requirements. Therefore, FEMA cannot fund any portion of the work.
Rationale: 44 CFR §206.203(d)(1); 44 CFR Part 10
Appeal Brief
| Disaster | FEMA-1203-DR |
| Applicant | City of San Diego |
| Appeal Type | Second |
| PA ID# | 073-66000 |
| PW ID# | 37461 & 39095 |
| Date Signed | 2005-01-25T05:00:00 |
Appeal Letter
January 25, 2005
Mr. Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023
Re: Second Appeal City of San Diego, PA ID 073-66000, Improved Project FEMA-1203-DR-CA, Damage Survey Reports (DSRs) 37461, 39095
Dear Mr. Jacks:
This is in response to your letter dated May 7, 2004, which transmitted the referenced second appeal on behalf of the City of San Diego (Applicant). The Applicant is appealing the Federal Emergency Management Agencys (FEMAs) de-obligation of DSR 37461.
Flooding impacted the State of California in the late winter/early spring of 1998, resulting in major disaster declaration FEMA-1203-DR-CA on February 8, 1998. As a result, FEMA prepared DSR 37461 on February 18, 1999, for $114,731 for the Applicant to repair floodwater damage to a paved parking lot, corrugated metal pipe storm drain, earthen embankment, and related facilities in the area of Balboa Park known as Inspiration Point. Included in the DSR was $39,115 in hazard mitigation funding for slope protection, different pipe material, and pipe over sizing. The Applicant claimed an overrun of $71,416 on the final inspection report as a result of improvements and/or project change orders that could not be contractually separated to determine program eligibility. As a result, FEMA prepared DSR 39095 on January 21, 2003, to de-obligate $114,731 because the Applicant did not get prior approval from the Governors Office of Emergency Services (OES) or FEMA for the improved project prior to construction and completion.
The Applicant submitted a first appeal on April 9, 2003, seeking reimbursement for $111,359 for the approved scope of work, excluding the additional $74,788 for modifications to the project design it originally claimed. The FEMA Region IX Director denied the appeal on
January 18, 2004, because the Applicant did not notify OES or FEMA prior to starting the improved project. Therefore, FEMA did not have the opportunity to review the project for historical and environmental clearances prior to construction and OES did not have the opportunity to review and approve the improved project.
The Applicant submitted its second appeal on March 4, 2004, claiming that the reconstruction of the washed-out slope and adjacent parking lot was within the same project area and footprint as the original facility. It stated that only minor changes were made within the parking lot to prevent another overflow in a future disaster.
Even though the Applicant is only seeking reimbursement for the original scope of work and hazard mitigation, the additional work items were performed at the same time and by the same contractual efforts as the approved scope of work, therefore, all work items are considered one project. On this basis, the completed project constitutes an improved project. FEMA regulations (44 CFR § 206.203(d)(1)) require the State's approval be obtained for improved projects prior to construction. The Applicant failed to obtain approval prior to construction preventing FEMA from completing the necessary National Environmental Policy Act requirements for the project. Accordingly, FEMA cannot fund any portion of the completed work. The Applicants appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.
Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
cc: Karen Armes
Acting Regional Director
FEMA, Region IX
Mr. Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023
Re: Second Appeal City of San Diego, PA ID 073-66000, Improved Project FEMA-1203-DR-CA, Damage Survey Reports (DSRs) 37461, 39095
Dear Mr. Jacks:
This is in response to your letter dated May 7, 2004, which transmitted the referenced second appeal on behalf of the City of San Diego (Applicant). The Applicant is appealing the Federal Emergency Management Agencys (FEMAs) de-obligation of DSR 37461.
Flooding impacted the State of California in the late winter/early spring of 1998, resulting in major disaster declaration FEMA-1203-DR-CA on February 8, 1998. As a result, FEMA prepared DSR 37461 on February 18, 1999, for $114,731 for the Applicant to repair floodwater damage to a paved parking lot, corrugated metal pipe storm drain, earthen embankment, and related facilities in the area of Balboa Park known as Inspiration Point. Included in the DSR was $39,115 in hazard mitigation funding for slope protection, different pipe material, and pipe over sizing. The Applicant claimed an overrun of $71,416 on the final inspection report as a result of improvements and/or project change orders that could not be contractually separated to determine program eligibility. As a result, FEMA prepared DSR 39095 on January 21, 2003, to de-obligate $114,731 because the Applicant did not get prior approval from the Governors Office of Emergency Services (OES) or FEMA for the improved project prior to construction and completion.
The Applicant submitted a first appeal on April 9, 2003, seeking reimbursement for $111,359 for the approved scope of work, excluding the additional $74,788 for modifications to the project design it originally claimed. The FEMA Region IX Director denied the appeal on
January 18, 2004, because the Applicant did not notify OES or FEMA prior to starting the improved project. Therefore, FEMA did not have the opportunity to review the project for historical and environmental clearances prior to construction and OES did not have the opportunity to review and approve the improved project.
The Applicant submitted its second appeal on March 4, 2004, claiming that the reconstruction of the washed-out slope and adjacent parking lot was within the same project area and footprint as the original facility. It stated that only minor changes were made within the parking lot to prevent another overflow in a future disaster.
Even though the Applicant is only seeking reimbursement for the original scope of work and hazard mitigation, the additional work items were performed at the same time and by the same contractual efforts as the approved scope of work, therefore, all work items are considered one project. On this basis, the completed project constitutes an improved project. FEMA regulations (44 CFR § 206.203(d)(1)) require the State's approval be obtained for improved projects prior to construction. The Applicant failed to obtain approval prior to construction preventing FEMA from completing the necessary National Environmental Policy Act requirements for the project. Accordingly, FEMA cannot fund any portion of the completed work. The Applicants appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.
Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
cc: Karen Armes
Acting Regional Director
FEMA, Region IX