Appeal Type:
2nd
Report Type:
PW
Appeal Categories:
Environmental Compliance
Scope of Work
Time Extension – Work
Applicant Name:
Roseau County Highway Department
Disaster Number:
FEMA-1288
DSR:
Multiple PWs
Date Signed:
Friday, January 6, 2017
PA ID:
135-99135-00
Summary/Brief:
Conclusion: The repair work performed on Roseau County Highway Department’s (Applicant) drainage system (Facility) went beyond the approved scope of work and/or was partially completed after the last FEMA-approved time extension for all PWs. As such, the work is not eligible under the Public Assistance (PA) program. In addition, the first appeals for Project Worksheets (PWs) 273, 275 and 284 were not submitted within the statutory timeframe.
Summary Paragraph
From March 1 to May 30, 1999, severe ice storms, heavy rains, and flooding impacted northwestern Minnesota. As a result, the Applicant’s Facility accumulated silt and sediment deposits constricting the ditch channels and reducing predisaster use and function of the Facility. FEMA prepared Project Worksheets (PWs) 265, 273, 275, 284 and 294 to address repair work to the Facility. During closeout, FEMA reduced funding for the entire project due to a myriad of issues, including environmental violations, work performed beyond the approved scope, and work performed after the FEMA-extended project completion deadline of. The Applicant was notified of FEMA’s deobligations via Sub-grant Amendment 17 sent by the Grantee. The Applicant acknowledged receipt of Amendment 17 on November 4, 2013. In March 2014 letters, the Applicant appealed FEMA’s closeout deobligations for the subject PWs. FEMA Region V sent final Requests for Information (RFIs) asking for “a reasonable justification, or extenuating circumstances…, to exempt [the Applicant] from the required time limitations for filing a first appeal.” The Applicant responded that it was confused by the appeal process and expected a formal eligibility determination as required by the Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual). On December 21, 2015, the Region V Regional Administrator denied the appeals in separate decisions finding that the first appeals were untimely, the projects violated environmental compliance requirements, and the Applicant performed work outside the approved scope of work and beyond the last approved time extension. On second appeal, the Applicant reiterates that the initial eligibility notices were deficient and provides a letter from the U.S. Army Corps of Engineers to refute claims it violated environmental requirements.
Authorities and Second Appeals
Stafford Act § 423.
44 C.F.R. §§ 13.30, 206.204, and 206.206.
PA Guide, at 84-85, 102, 104 and 115-116.
Public Assistance Program Appeal Procedures, at 10-12, 14.
Headnotes
Pursuant to Stafford Act § 423 and 44 C.F.R. § 206.206(c), the Applicant has 60 days from receipt of notice to appeal an eligibility determination.
The Appeals Manual, first issued on July 26, 2013, created a heightened notification requirement for eligibility determinations.
The Applicant’s first appeals for PWs 273, 275 and 284 were untimely.
Awarded after the issuance of the Appeals Manual, FEMA was required to issue PA Determination Memorandum for PWs 265 and 294, and therefore, these appeals are timely.
According to 44 C.F.R. § 13.30 and the PA Guide, whenever there is a revision of the scope or the objectives of the project, the Applicant is required to notify the Grantee—who, in turn, notifies FEMA—prior to repairing or replacing the damaged element to ensure proper compliance reviews are conducted.
The Applicant performed work outside the approved scope and did not obtain approval from the Grantee and FEMA prior to performing the additional work.
44 C.F.R. § 206.204 provides that permanent work must be completed within 18 months of the disaster declaration date absent an approved time extension.
Portions of the project were completed after the FEMA-extended project completion deadline of November 30, 2008.
Letter:
Joe Kelly
Director
Division of Homeland Security and Emergency Management
445 Minnesota Street, Suite 223
Saint Paul, Minnesota 55101-6223
Re: Second Appeal – Roseau County Highway Department, PA ID 135-99135-00, FEMA-1288-DR-MN, Project Worksheets (PW) Multiple Project Worksheets – Scope of Work – Time Extension – Work – Environmental Compliance
Dear Mr. Kelly:
This is in response to a letter from your office dated March 14, 2016, which transmitted the referenced second appeal on behalf of Roseau County Highway Department (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $2,815,815.45 for work performed on its water control facility (drainage ditch system) (Facility).
As explained in the enclosed analysis, I have determined that the repair work performed on the Applicant’s Facility went beyond the approved scope of work, was partially completed after the project completion deadline, or both. Additionally, the Applicant’s first appeals for three of the Project Worksheets (PWs 273, 275 and 284) were untimely. As such, the work is not eligible under the Public Assistance (PA) program.
Therefore, I am denying the appeal. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/s/
Alex Amparo
Assistant Administrator
Recovery Directorate
Enclosure
cc: Janet Odeshoo
Acting Regional Administrator
FEMA Region V
Analysis:
Background
From March 1 to May 30, 1999, severe ice storms, heavy rains, and flooding impacted northwestern Minnesota resulting in a federal disaster declaration on August 26, 1999. As a result of the disaster, the Roseau County Highway Department’s (Applicant) water control facility (drainage ditch system) (Facility) accumulated silt and sediment deposits constricting the ditch channels and reducing predisaster use and function. FEMA prepared 31 Project Worksheets (PWs) for $5,947,336.72 in funding to address repair work to various elements of the Facility, including intermittent silt and sediment removal constricting ditch channels, repair and regrading slope banks, and associated survey and engineering costs.
With specific regard to the five PWs under appeal, FEMA detailed costs for work necessary to remove sediment deposits and regrade slope banks on portions of the Facility in PWs 265, 273 and 275. FEMA documented engineering costs for several projects, including those for PW 275, within PW 284. Lastly, FEMA developed PW 294 to capture the result of a net small project overrun (NSPO) appeal for the restoration of portions of the drainage ditch system documented and funded on small projects. [1]
The Grantee requested closeout of all PWs in late 2012. As a result of the closeout process, FEMA adjusted eligible costs for each of the five PWs under appeal. FEMA disallowed funding based on the following determinations:
PWs 265, 273, 275 (drainage ditch repairs) and 294 (NSPO for drainage ditch repairs) – work exceeded the approved scopes of work (SOW) and was not supported by documentation provided by the Applicant.
PWs – 265, 273 and 284 (drainage ditch repairs and engineering) – work completed after the FEMA-extended project completion deadlines.
FEMA implemented these close-out determinations in obligation actions according to the following chronology:
June 3, 2013 – FEMA obligated final eligible costs for PW 275.
June 6, 2013 – FEMA obligated PW 273 for zero dollars because it determined that the United States Army Corps of Engineers (USACE) concluded the project was not in compliance with its Clean Water Act permit, and “[a]s such, this work is ineligible for PA Program funding and the entire PW must be deobligated.”[2]FEMA simultaneously reduced funding in PW 284 (engineering costs) that was related to ineligible work documented in PW 273.
August 27, 2013 – FEMA obligated final eligible costs for PWs 265 and 294.
October 24, 2013 – final obligations were memorialized in Amendment 17[3] to the sub-grant agreement as an attachment to a letter from the Grantee.
November 4, 2013 – the Applicant signed Amendment 17.
PW
Activity
Obligated Amount
Amount Under Appeal
265
Drainage ditch repairs
$809,474
($658,701)
273
Drainage ditch repairs
$0
($1,773,633)
275
Drainage ditch repairs/survey
$841,949
($127,328)[5]
284
Survey and Engineering Plans
$412,959
($36,569)
294
Net Small Project Overrun
$69,653
($219,584)
Total
$2,134,035
($2,815,815)
The total additional funding requested at second appeal is $2,815,815.45.
First Appeals
In three separate first appeals dated March 24, 2014, the Applicant appealed FEMA’s eligibility determinations on PWs 265, 273, 275, and 284 (drainage ditch repair and engineering costs). In its first appeal, related to PW 265, the Applicant appealed deductions made in Version 2, stating it properly requested a time extension and provided the necessary documentation to justify all costs claimed under PW 265. As an attachment to its first appeal, the Applicant provided an email sent to the Grantee “requesting a time extension for all remaining 1288 projects on the basis that it was not of the County’s control, but the regulator agencies… for the delay in construction.”[6] The Applicant also provided a cost account ledger for all associated costs of PW 265. The Applicant’s first appeal related to PWs 273 and 284 contested FEMA’s determination that those projects violated environmental permit requirements. The final first appeal asserted that FEMA incorrectly concluded that some work associated with PW 275 was performed beyond the approved scope, contending that subsequent disasters, re-inspections of the damage site, and the regulatory process caused the increase in scope of work for the project.
On March 27, 2014, the Applicant also appealed FEMA’s determination in PW 294 resulting from its NPSO. Specifically, the Applicant took exception to FEMA’s decision to deobligate funding from PW 269 because work was performed outside the approved SOW, arguing the project had to be revised following a required assessment done by regulatory agencies and the Grantee was notified. The Applicant stated that the Grantee told it to proceed with the project and to float the difference in the contract price and the revised assessment price until closeout. Finally, the Applicant provided documentation that it argued justified the overrun costs.
In January 2015, FEMA Region V sent three separate Requests for Information (RFI). In the RFIs, FEMA requested “[a] reasonable justification, or extenuating circumstances beyond [the Applicant’s] control, to exempt [it] from the required time limitations for filing a first appeal.” The letters further asked the Applicant to provide any other documentation that should be considered. The Applicant responded to each of the RFIs in March 2015. For each PW, the Applicant explained that it did not consider Amendment 17 to be the formal notice of eligibility determinations as required by 44 C.F.R. § 206.206. The Applicant stated it was expecting a formal determination letter like it received during another declared disaster and as required by the Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual).[7] For each of the RFIs, the Applicant also provided more information regarding substantive issues as well.
On December 21, 2015, Region V issued four separate appeal decisions regarding the Applicant’s drainage system repair projects. While all of the Applicant’s appeals were denied for timeliness, the Regional Administrator (RA) also provided separate substantive arguments for denying project eligibility.
PW 265 (drainage ditch repairs) – the RA determined the Applicant completed work: (1) beyond the approved SOW; (2) beyond the last time extension; and (3) after its Minnesota Pollution Control Agency (MPCA) permit expired in violation of state and federal laws.As such, the RA denied $658,701.21 in additional requested PA reimbursement.
PWs 273 and 284 (drainage ditch repairs and engineering costs) – the RA denied the first appeal relating to PWs 273 and 284 because the Applicant failed to: (1) obtain prior written approval from FEMA to change the SOW as required by 44 C.F.R. § 13.30; and (2) performed work in PW 273 two years after the last FEMA-approved time extension dated November 30, 2008, and the August 1, 2008 expiration of the MPCA permit.As such, the RA found the additional $1,810,202.15 in requested PA funding ineligible.
PW 275 (drainage ditch repairs) – the RA denied $124,328.36 in additional funding. The RA determined the Applicant: (1) failed to obtain FEMA’s written approval for a change in the SOW prior to the start of construction pursuant to 44 C.F.R. § 13.30; (2) failed to provide information to substantiate additional eligible costs for eligible work; and (3) performed work after its MPCA permit expired in violation of state and federal laws.
PW 294 (NSPO for drainage ditch repairs) – the RA determined that the Applicant failed to obtain FEMA’s approval for a change in SOW prior to the start of construction.As such, an additional $219,583.73 in requested funding was denied.
Second Appeal
In its second appeal, dated March 10, 2016, the Applicant collectively appealed the RA’s first appeal determinations for PW 265, 273, 275, 284, and 294. The Applicant disputes the finding that the first appeals were untimely arguing that Amendment 17 did not constitute a “final notice of decision” because it did not contain the required final determination language mandated by the Appeals Manual.[8] The Applicant states that it received 16 previous Amendments and never considered them to be eligibility determinations triggering appeal rights. Additionally, the Applicant asserts the RA wrongly concluded that the requirement to issue determination memorandum was not in effect at the time final eligibility decisions were made for the implicated PWs and points to Version 2 of the Appeals Manual dated September 30, 2013.
The Applicant also argues that there is no dispute that the work performed was proper and costs incurred resulted from eligible work. The Applicant asserts that it received pre-approval for all work performed and was not in violation of state and federal environmental laws at the time the work was performed. To substantiate the latter claim, the Applicant provided an email, with an accompanying formal letter dated May 1, 2015, from the USACE Northwest Section Chief.[9] The letter states the USACE issued the Applicant “an after-the-fact letter of permission (LOP) to retain rock riprap placed in approximately 385 linear feet of Hay Creek” and it was taking no further action regarding “alleged permit violations related to the reconstruction of Hay Creek….”[10]
Discussion
Appeal Timeliness
Pursuant to Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423, an Applicant may appeal any decision regarding eligibility for, from, or amount of Public Assistance (PA) within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.[11] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206 implements that provision.[12]
Through the issuance of the Appeals Manual, FEMA provides a heightened notification requirement, known as the PA Determination Memorandum. The Appeals Manual states, “[i]f no facilitated discussion occurs, the PA Program staff should issue a formal eligibility determination as soon as practicable. For the purposes of the PA appeals procedures set forth in 44 C.F.R. § 206.206, agency actions that constitute an eligibility “determination” subject to appeal include…. awarding a PW or amendment of a PW.” FEMA implemented this more formalized requirement beginning with the issuance of the first version of the Appeals Manual in July 2013.[13]
The Applicant argues that its first appeals are not time barred because the notice used by FEMA was deficient as it did not follow procedures set forth in the Appeals Manual. The Applicant asserts that signing Amendment 17, which included the final amount for all PW funding, did not provide notice, thus triggering the 60-day timing requirement of 44 C.F.R. § 206.206(c)(1).[14] Further, the Applicant states it was awaiting a “formal eligibility determination letter” like the one it received for a PW related to another declared disaster.
In determining whether Amendment 17 constitutes sufficient notice of an eligibility determination, one must look at when FEMA made each eligibility determination. FEMA obligated PW 275 (drainage ditch repairs) (i.e., made a determination) on June 3, 2013. PWs 273 and 284 (drainage ditch repairs and engineering costs) were obligated on June 6, 2013. On August 27, 2013, FEMA obligated PWs 265 (drainage ditch repairs) and 294 (NSPO for drainage ditch repairs). It is unclear why the Grantee did not notify the Applicant of such determinations until October 2013.
Project Worksheets 273, 275 and 284 (drainage ditch repairs and engineering costs)
Because the Appeals Manual was not issued until July 26, 2013, determinations made in PWs 273, 275 and 284 (drainage ditch repairs and engineering costs) do not fall under its purview or its notification requirement. Thus, these PW determinations would be analyzed under former practices. As previously stated, Amendment 17 was an attachment to a letter from the Grantee to the Applicant regarding its sub-grant. The cover letter states that Amendment 17 “will be the final amendment” and “once this amendment is processed we will be able to do a final payment and close-out.”[15] Finally, the cover letter states, “[p]lease review, and if you concur, sign and return all three copies of the Amendment.”[16] The Applicant signed Amendment 17 on November 4, 2013, demonstrating receipt, notification, and concurrence with the document. As Amendment 17 contains relevant information regarding the eligibility determinations (i.e. deobligations from individual PWs), the Grantee’s letter refers to it as the final amendment, and the Applicant signed it, the Amendment sufficiently demonstrates notice of the eligibility determinations made in PWs 273, 275 and 284 pursuant to Stafford Act § 423, 44 C.F.R. § 206.206(c), and FEMA’s and the Grantee’s past eligibility notification processes. As such, Region V was correct in establishing the date of notification as November 4, 2013, and determining that the Applicant’s first appeals related to these PWs, dated March 2014, were time barred by regulation.
Project Worksheets 265 and 294 (drainage ditch repairs and NSPO for drainage ditch repairs) FEMA’s eligibility determinations for PWs 265 and 294 (drainage ditch repairs and NSPO for drainage ditch repairs) were awarded after the issuance of the Appeals Manual, and thus, were subject to the additional notification requirements therein.[17] FEMA should have issued PA Determination Memorandum stating the determinations made, the statutory or regulatory basis for the determinations, and informing the Applicant of its appeal rights under 44 C.F.R. § 206.206.[18] Since FEMA Region V did not issue PA Determination Memorandum for those PWs, FEMA finds the Applicant’s argument regarding the timeliness of these first appeals persuasive in that the notice provided was defective because it did not comport with the Appeals Manual. However, timeliness aside, as described below, the Applicant’s appeal related to PWs 265 and 294 is denied for other substantive reasons.
Changes to the Scopes of Work
According to 44 C.F.R. § 13.30(d)(1), grantees or subgrantees must obtain the prior approval of the awarding agency whenever any revision of the scope or objectives of the project is anticipated.[19] This is true regardless of why the scope is revised (i.e., hidden damage discovered, improved project, alternate project, or general scope change).[20] FEMA guidance further stipulates that:
…when a change in scope or a need for additional funding is discovered, the applicant should notify the State as soon as possible. It should not be assumed that such costs can be reported at the end of the project and additional funds will be approved automatically.... The State forwards the request to FEMA…. FEMA renders a decision and notifies the State either with an amended PW… or a written denial….[21]
The closeout versions for the subject PWs document various instances where the Applicant performed work beyond the FEMA approved scope of work, thus altering the predisaster design of the applicable sections of the drainage system. For instance, PWs 265 and 275 (drainage ditch repairs) note that the Applicant placed rip-rap along the banks even though the work was not approved by FEMA and the Applicant exceeded the approved linear footage outlined in each PW.[22] Regarding PW 273 (drainage ditch repairs), FEMA approved regrading bank slopes at each of the ten site locations at a 3:1 slope. However, the Applicant regraded these slopes at a 4:1 slope.[23] Because PW 294 (NSPO for drainage ditch repairs), FEMA reviewed all of the Applicant’s small project PWs. As a result, FEMA found that the Applicant installed culverts not included in the approved SOWs for PWs 263 and 266.[24] In addition, the Applicant claimed costs for work completed outside the approved scopes of PWs 269 and 272.[25] Accordingly, FEMA denied funding for work performed outside of the approved scopes.
The Applicant does not deny that it completed work outside of the FEMA-approved scope of work.[26] The varying reasons the Applicant and Grantee offer to explain why FEMA’s prior approval was not obtained, including subsequent disasters, approval from other agencies and problems during construction, do not exempt the Applicant from the requirements of 44 C.F.R. § 13.30. In failing to obtain FEMA’s prior approval, the Applicant risked disallowance of costs and the denial of costs for work that exceeded the approved SOWs. As such, the RA’s decision to deny costs incurred for work performed outside the approved scopes of work was appropriate.
Project Completion Deadlines
Pursuant to 44 C.F.R. § 206.204, an applicant must complete a project for permanent work within 18 months of the disaster declaration date unless a time extension is authorized.[27] The grantee may extend the project completion deadline by an additional 30 months, but FEMA must approve any additional time extensions beyond the initial 30 month extension.[28] An applicant may not receive funding for work performed after an approved project completion deadline.[29]
In the first appeal decisions related to PWs 265, 273 and 284 (drainage ditch repairs and engineering costs), the RA determined the Applicant completed work after the FEMA-extended project completion deadline of November 30, 2008. The Applicant asserted that it requested a time extension through the Grantee in November 2011. While FEMA now is in receipt of the request, there is no evidence that the Grantee transmitted the request to FEMA prior to second appeal or that FEMA approved the request. In fact, the Applicant’s response to FEMA’s Final RFI regarding PW 265 acknowledges that “[w]e received no news accepting or denying this request.”[30] Yet, the Applicant continued working on the project after the November 2008 deadline. While FEMA may grant after-the-fact time extensions, the authority rests with the RA.[31] In the first appeal decisions, the RA did not find the Applicant’s reasons for a time extension compelling and denied the Applicant’s request for reimbursement of work performed after the extended project completion deadline. The Administrative Record demonstrates that the RA appropriately exercised his discretion to deny the time extension request; therefore, the Applicant’s request to be reimbursed for work performed after the project completion deadline is denied.
Environmental Compliance
When providing funds under the PA Program, FEMA must consider and ensure compliance with a range of federal laws and regulations, including the Clean Water Act.[32] Pursuant to Section 404 of the Clean Water Act, discharges of dredged or fill material into “waters of the United States,” including wetlands,[33] must be authorized by the USACE.[34] At the time of the disaster, FEMA considered agricultural drainage ditches to be wetlands for purposes of Section 404.[35] If an Applicant materially fails to comply with any term of an award, including environmental compliance requirements, FEMA may disallow all or part of the grant award.[36]
During the closeouts of PWs 273 and 284 (drainage ditch repairs and engineering costs), FEMA determined that the Applicant performed work beyond the scope and expiration of its MPCA permit issued for the drainage system project. The MPCA permit “regulates the discharges of storm water to the waters of the state of Minnesota associated with construction activity.”[37] On first appeal, the RA reaffirmed the initial determination stating that the Applicant’s actions violated state and Federal laws and the “USACE reported that the Subgrantee was issued notices of violations of water quality standards by the MPCA… for sediment releases into the Roseau River.”[38]
On second appeal, the Applicant offers a letter from the USACE to demonstrate it complied with environmental laws for the duration of the drainage system project.[39] Typically, FEMA does not consider new information after the Administrative Record is closed, as mandated by the Appeals Manual[40] and explained in the Final RFIs for the applicable PWs.[41] However, as stated previously, determinations made in PWs 273 and 284 predate the Appeals Manual. As such, FEMA may consider additional information related to matters associated with those appeals. Upon review of the letter from USACE and subsequent consultations with USACE and the Minnesota Department of Natural Resources (DNR), FEMA finds the Applicant’s argument compelling.[42] Both the federal and state regulating agencies conveyed that the Applicant complied with environmental permitting requirements. As such, FEMA finds no justification to deny funding in PWs 273 and 284 based on EHP noncompliance. However, as stated previously, the Applicant’s appeal related to these PWs is denied because the appeal was not timely, work exceeded the FEMA-approved SOW, and the Applicant performed work after the FEMA extended project completion deadlines.
In summary, as detailed above, there are various reasons the different appeals are denied. The table below provides an overview of the findings by PW.
PW
Description of Work
Was the First Appeal Timely?
Was Work Performed Within the Approved SOW?
Was Work Performed Within FEMA Time Extension?
Are the Costs for the Work Eligible for FEMA PA Funding
265
Drainage Ditch Repairs
Y
N
N
N
273
Drainage Ditch Repairs
N
N
N
N
275
Drainage Ditch Repairs/survey
N
N
Y
N
284
Survey and Engineering Plans
N
Y
N
N
294
Net Small Project Overrun
Y
N
Y
N
Conclusion
The Applicant performed work that exceeded the approved SOW, was performed after the project completion deadlines, or both for all applicable PWs. Additionally, the Applicant’s first appeals for PWs 273, 275 and 284 do not meet the submission timeframes mandated by Stafford Act § 423 and 44 C.F.R. § 206.206 and are untimely. As such, the requested costs are ineligible for FEMA PA funding and the Applicant’s second appeal is denied.
[1] When the approved estimate of costs for an individual project is less than $35,000 it is considered a small project. This amount shall be adjusted annually to reflect changes in the Consumer Price Index. See Title 44 C.F.R. § 206.203 (c)(2). For the year 1999 the small project threshold was $47,800.
[2] Project Worksheet 273, County of Roseau, Version 2, at 4 (May 8, 2013).
[3] Amendment 17 is the final amendment to the sub-grant Agreement for federal assistance under the infrastructure program for sub-grantees. It provides the breakdown of the grant, totaling $6,648,977.33
[4] Letter from Pub. Assistance Officer, Minn. Homeland Sec. & Emergency Mgmt., to County Eng’r, Roseau County Highway Dep’t, at Attachment (Oct. 24, 2013) [hereinafter Sub-grant Notification Letter].
[5] The disallowed amount was $124,328.36, which was the amount requested at first appeal. On second appeal the Applicant is requesting $127,328.36
[6] Email from County Eng’r, Roseau County Highway Dep’t to Public Assistance Program Coordinator, MN Dep’t of Pub. Safety (Nov. 28, 2011, 14:45 CST).
[7] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 2, at 10-12 (Sep. 30, 2013).
[8] Id.
[9] Email from Nw. Section Chief, USACE Regulatory Branch, to Pub. Assistance Program Coordinator, Minn. Homeland Sec. & Emergency Mgmt. (Feb. 29, 2016, 09:47 EST) [hereinafter Email from USACE Section Chief].
[10] Letter from Regulatory Branch Chief, St. Paul Dist., USACE Regulatory Branch, to County Eng’r, Roseau County Highway Dep’t (May 1, 2015) [hereinafter Letter to County Eng’r].
[11] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423, 42 U.S.C. § 5189(a) (1988) (emphasis added).
[12] 44 C.F.R. § 206.206(c)(1) (1998) (emphasis added).
[13] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 1, at 10-11 (July 26, 2013).
[14] During a meeting with the Applicant on 6/30/2016 related to this matter, the Applicant’s representative that received the notification acknowledged that he knew it triggered the timeframe during which the determination could be appealed.
[15] Sub-grant Notification Letter, at 1.
[16] Id.
[17] Version 1 of the Appeals Manual was issued on July 26, 2013. PWs 265 and 294 were obligated on August 27, 2013.
[18] Recovery Directorate Manual, Public Assistance Program Appeals Procedures, Version 1, at 11.
[19] 44 C.F.R. § 13.30(d)(1).
[20] Public Assistance Guide, FEMA 322, at 115-116 (Oct. 1999) [hereinafter PA Guide].
[21] Id.
[22] Project Worksheet 265, County of Roseau, Version 3, at 5 (Aug. 27, 2013) and Project Worksheet 275, County of Roseau, Version 3, at 6 (June 3, 2013). FEMA also disallowed costs for inadequate descriptions of expenditures or insufficient support documentation for certain claimed costs. Moreover, for PW 275, FEMA disallowed costs for mitigation that was previously found ineligible in Version 1.
[23] See Technical Memorandum from Professional Eng’r, HDR Engineering, Inc., to Professional Eng’r, HDR Engineering, Inc., Hay Creek/Norland Impoundment (July 25, 2008) (proposing channel modifications to Hay Creek to include engineering side slopes at 4H:1V “due to the low shear strength of the overlying fine-grained, lacustrine soils at the site,” excavating the current channel side slopes to achieve the recommended 4:1 slopes and providing a setback of 15 feet between the channel bank and the toe of the spoil); FEMA First Appeal Analysis, Roseau County Highway Department, FEMA-1288-DR-MN, at 4 (Dec. 21, 2015). While FEMA noted SOW changes as an issue in the first appeal response for PW 273, the PW was fully deobligated due to alleged Clean Water Act compliance issues (discussed below).
[24] Project Worksheet 294, County of Roseau, Version 1, at 3 (Aug. 27, 2013). However, most of the disallowed costs were due to “insufficient description[s] of expenditure[s].”
[25] Id.
[26] See Letter from County Eng’r, Roseau County Highway Dep’t, to Reg’l Adm’r, FEMA Region V, at 2 (Mar. 24, 2014) (stating the Applicant followed the recommendation of its consulting engineering that it should flatten the slopes to 4:1) [also known as First Appeal Letter for PWs 273 and 284]; see also Letter from County Eng’r, Roseau County Highway Dep’t, to Reg’l Adm’r, FEMA Region V, at 2-3 (Mar. 24, 2014) (acknowledging that the Applicant completed an additional 218 LF of work at one site and an additional 185 LF of work at another site even though “these areas were not identified under the original PW[s].”) [also known as First Appeal Letter for PW 275] and Letter from County Eng’r, Roseau County Highway Dep’t, to Reg’l Adm’r, FEMA Region V, at 7 (stating changing site conditions and new regulations mandated an increase in the scope of the project for PW 269 as affirmed by the Applicant’s consulting engineer) (Mar. 30, 2015) [also known as RFI Response for PW 294]. In addition to written statements, the Applicant acknowledged that work was completed outside the approved scopes, but stated it was told that, since “it was part of the initial assessment,” the additional work would be eligible during a June 30, 2016 oral meeting held by FEMA and attended by Grantee representatives and Congressional staff. (Meeting Minutes on file with FEMA)
[27] 44 C.F.R §§ 206.204(c)(1), (d).
[28] Id. § 206.204(d).
[29] Id. § 206.204(d)(2). See Mayor and City Council of Baltimore v. Browner, 866 F. Supp. 249, 251-252 (D. Md. 1994) (upholding the Environmental Protection Agency’s (EPA) use of “cut-off” dates to enforce regulatory limits for disbursing grant funds. The Court held that the “cut-off” dates were required to lend force to the provisions regulating the timing of grant-funded projects, such that EPA must have a method to attain reimbursement of funds already disbursed when a project exceeds its time limit.)
[30] Letter from County Eng’r, Roseau County Highway Dep’t, to Reg’l Adm’r, FEMA Region V, at 5 (Mar. 16, 2015) [hereinafter RFI Response PW 265].
[31] 44 C.F.R. § 206.204(d).
[32] PA Guide, at 102.
[33] 40 C.F.R. § 230.3(o)(1)(vi) (defining “waters of the United States” to include “wetlands” for purposes of the Clean Water Act).
[34] Federal Water Pollution Control Act, 33 U.S.C. § 1344 (1998).
[35] PA Guide, at 104; but see 33 U.S.C. § 1344(f)(1)(C) (2016) (stating the discharge of dredged or fill material for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches is not prohibited by or otherwise subject to regulation under Section 404 of the Clean Water Act).
[36] 44 C.F.R. § 13.43(a)(2).
[37] Minn. Stat. §§ 115.03, 115.07 and 116.07 (1997); Minn. R. 7001.0030 (2011).
[38] Id.
[39] Letter to County Eng’r.
[40] Public Assistance Program Appeal Procedures, at 14.
[41] Letter from Reg’l Admin’r, FEMA Region V, to Deputy State Coordinating Officer, MN Homeland Sec. & Emergency Mgmt. Agency and County Eng’r, Roseau County Highway Dep’t, at 1 (Jan. 20, 2015) (notifying the Applicant that the Administrative Record would close and no additional information would be considered following the issuance of the first appeal).
[42] On August 25, 2016, staff of the FEMA PA Appeals and Audits Branch and Office of Environmental Planning and Historic Preservation (EHP) participated in a teleconference with USACE. During the teleconference, USACE stated the Applicant applied for and received GP-LOP-98, a Regional general permit for the entire drainage system project. In addition, the USACE representative stated that issues raised by USACE during the duration of the project have been resolved. Subsequently, FEMA EHP contacted Minnesota DNR which stated that the Applicant completed all corrective measures required to address the sedimentation in the Roseau River and Hay Creek and that it issued a Certificate of Satisfactory Restoration on June 3, 2015.