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Lake Thomson Recreation Area

Appeal Brief Appeal Letter

Appeal Brief

Disaster1984-DR-SD
ApplicantSouth Dakota Department of Game, Fish and Parks
Appeal TypeSecond
PA ID#000-UZH9V-00
PW ID#2352
Date Signed2013-10-30T00:00:00

Citation:  FEMA-1984-DR-SD, South Dakota Department of Game, Fish and Parks, Project Worksheet (PW) 2352

Cross-Reference:  Documentation, Work Eligibility

Summary:  Lake Thompson Recreation Area in Kingsbury County sustained damage as a result of rapid snowmelt in March 2011.  After FEMA and one of the Applicant’s park managers inspected six damage sites with the recreation area on October 25, 2011, FEMA prepared PW 2352 in the amount of $11,493 to repair 1,532 feet of erosion to a walking path, replacement of sand at a volleyball court, repair of a 230 foot retaining wall, and restoration of embankment loss at three lake access sites.  The Applicant requested a scope of work change to repair additional damage that the Applicant claimed the PW 2352 failed to capture.  FEMA denied the Applicant’s request to increase the eligible amount to $226,691.

The Applicant submitted an appeal stating that PW 2352 did not account for all disaster-related damage.  The appeal claimed additional costs at three of six sites, and documented and identified a seventh site.  The Applicant submitted bids from various contractors for the installation of rip-rap in 2001, but did not include any design specifications.  The Regional Administrator partially approved the appeal, noting that $8,432 for 2,720 feet of plank edging was omitted from the eligible work in the PW.  The Regional Administrator denied the remainder of the Applicant’s request because the Applicant did not submit documentation demonstrating the design or condition of the facilities prior to the event, justifying the proposed scope of work, nor supporting the eligibility of the requested additional costs.

In the second appeal, the Applicant increased the requested amount to $228,921. The Applicant submitted photographs and a map of the Lake Thompson Recreation Area and to demonstrate damage to the facilities and locations of the permanent work.  Also included were designs for the post-disaster rebuilding of the embankments and a cost tabulation for the revised scope based on unit costs.  The Applicant also submitted a change order for the 2001 contract.  The appeal did not contain specifications or as-built designs for the construction of the facilities, such as the trail or rip-rap slope protection.

Issue:   Has the Applicant submitted sufficient documentation to demonstrate that the additional costs requested are eligible for reimbursement?

Finding:   No.

Rationale:  Title 44 of the Code of Federal Regulations (44 CFR) §206.204(e)(2), Project Performance, Cost Overruns

Appeal Letter

October 30, 2013

Kristi Turman
Director
South Dakota Office of Emergency Management
118 West Capitol Avenue
Pierre, South Dakota 57501

Re:  Second Appeal-South Dakota Department of Game, Fish and Parks, PA ID 000-UZH9V-00, Lake Thomson Recreation Area, FEMA-1984-DR-SD, Project Worksheet (PW) 2352

Dear Ms. Turman:

This letter is in response to a letter from your office dated October 24, 2012, which transmitted the referenced second appeal on behalf of South Dakota Department of Game, Fish, and Parks (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of the Applicant’s request for a change in scope of work.  This Applicant is requesting an additional $228,921.63 in associated costs as part of the appeal.

Background

In March 2011, a rapid spring snowmelt flooded the Lake Thompson Recreation Area in Kingsbury County.  The flooding damaged a 230 foot long retaining wall, and sand volleyball court.  The flooding also eroded embankments at three lake access sites, sections of a gravel walking trail, and a shoreline protection structure that protects the park’s main campground, comfort stations, roads, camping cabins, boat ramp, parking lots, and power, water and sewer systems.  On October 25, 2011, FEMA and one of the Applicant’s representatives inspected of the sites and documented the damage with PW 2352, which was awarded for $11,493 on February 28, 2012.  The Applicant subsequently submitted a request for a change in the eligible scope of work based on its assertion that FEMA did not document all of the eligible disaster-related damage on the PW.  FEMA denied the Applicant’s request for a change in the scope of work and informed the Applicant that it must provide documentation justifying an increase in quantities of materials and additional work not included in PW 2352.

First Appeal

The Applicant submitted a first appeal to the South Dakota Office of Emergency Management (Grantee) on January 3, 2012.  In the letter, the Applicant stated that they were not consulted in FEMA’s development of the PW and reiterated that the PW did not fully encompass all eligible damage caused by the flooding.  The Applicant stated that the quantity of rip-rap necessary to repair the shoreline protection structure was based on the original installation of 4,900 tons in 2001.  In support of its claim, the Applicant submitted an itemized list of estimated costs for each site as well as a summary of bids from several contractors.

In a letter dated June 8, 2012, the FEMA Regional Administrator denied the requested change to the scope of work for the shoreline protection structure.  The Regional Administrator stated that the Applicant did not submit sufficient documentation to justify its request to increase the total eligible project cost by 25 times the initial amount approved on the PW.  The Regional Administrator acknowledged that the Applicant had limited advance notification of the inspection; however, FEMA did not receive a request to reschedule or postpone the inspection.  The Regional Administrator considered the quantification of damage to represent a thorough assessment of the site and that the PW was prepared by a qualified senior engineer well-versed in the PW preparation process.  The Regional Administrator’s determination did approve additional costs for 2,720 linear feet of plank edging at $3.10 per linear foot.  As a result, FEMA awarded an additional $8,432 with Version 1 of PW 2352 on August 24, 2012.

Second Appeal

The Applicant submitted a second appeal on September 11, 2012, requesting $228,922 in additional funding.  The Applicant states that because the Applicant’s engineering or technical staff did not participate in the inspection and were not consulted in the preparation of the PW, the documentation of disaster damage and eligible scope of work is incomplete and does not represent the full cost to repair the facility.  To support its argument, the Applicant submitted maps of the Lake Thompson Recreation Area, including designations of the locations of repair work and schematics showing the specification for the design of the embankments and shoreline protection structure.  The Applicant provided a summary of bids for the proposed scope of work, invoices from the selected contractor, as well as vouchers and a certification to demonstrate payment.  The appeal contains images of the various facilities taken before and after the flooding event showing damage to the facilities.  The Applicant also included a table containing line items for each of the work items that significantly differed from FEMA’s cost estimate. 

Discussion

Pursuant to Title 44 of the Code of Federal Regulations (44 CFR) §206.204(e)(2), Project Performance, Cost Overruns, a request for changes to the eligible scope of work or estimated cost necessary to repair a disaster damaged facility must “contain sufficient documentation to support the eligibility of all claimed work and costs.” Furthermore, 44 CFR §206.223(a)(1), General Work Eligibility, General, requires that any item of work “be required as the result of the emergency or major disaster event.”

While the Applicant has sufficiently demonstrated that it accomplished the proposed scope of work, the Applicant has not provided sufficient documentation to support that the work was necessary as a result of the disaster to restore the facility to its pre-disaster design or condition.  The Applicant notes that the embankment and shore protection structure was installed in 2001 and claims that the entire length of the embankment along with its rip rap shoreline protection eroded as a result of the disaster, but has not submitted documentation to substantiate this claim.  The Applicant provided cross-sections and plans of the work completed after the disaster, but did not submit any documentation to demonstrate the as-built design or maintenance of the rip rap shoreline protection.  Documentation of the pre-existing design of the damaged facilities and evidence of disaster related damage allow FEMA to determine whether the requested changes to the scope of work and total costs are eligible for federal disaster assistance funding.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Doug Gore
       Acting Regional Administrator
       FEMA Region VIII