Codes and Standards – Hazard Mitigation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4180
Applicant	South Valley (Town of)
Appeal Type	Second
PA ID#	009-69870-00
PW ID#	PW 503
Date Signed	2020-11-17T17:00:00

Summary Paragraph

From May 13-22, 2014, severe storms and flooding impacted the Town of South Valley (Applicant).  In Project Worksheet 503, FEMA approved work to repair 2 adjacent 40 foot (ft) long galvanized metal culverts and to replace ancillary road damage.  Before completing the work, the Applicant requested a change in scope of work (SOW) to install a 30 ft, 3 inch-wide aluminum box culvert and necessary ancillary work, for an estimated base construction cost of $267,250.00.  Although the Applicant argued eligibility of the work as a codes and standards upgrade, FEMA determined the Applicant had not established upgrade was required pursuant to 44 C.F.R. § 206.226(d).  On first appeal, the Applicant cited to the U.S. Army Corps of Engineers (USACE) Nationwide Permit (NWP) to argue the upgrade was required by codes and standards.  The New York State Division of Homeland Security and Emergency Services (Grantee) supported the appeal as either a codes and standards upgrade or as hazard mitigation (HM).  The FEMA Region II Regional Administrator found the requested change in SOW neither constituted an upgrade required by codes or standards, nor was eligible HM work as it was not cost effective.  FEMA revised the approved costs to include inadvertently omitted costs associated with restoring the facility to predisaster design, amounting to total eligible repair costs of $97,322.36.  On second appeal, the Applicant reiterates its argument that its requested change in SOW is required in order to obtain permits from New York State Department of Environmental Conservation and USACE.  Alternatively, the Grantee states the work is eligible HM. 

 

Authorities and Second Appeals

• Stafford Act § 406(e)(1)(A).
• 44 C.F.R. § 206.226.
• PA Guide, at 34, 40, 125-126.
• DAP 9527.4, Construction Codes and Standards, at 2; DAP 9526.1, Hazard Mitigation Funding Under Section 406, at 1-3, Appendix A; BCA Reference Guide, at 2-5.
• Pawnee (Cty.), FEMA-4225-DR-NE, at 3; Town of Warwick, FEMA-4020-DR-NY, at 6; Pulaski Cty., FEMA-4144-DR-MO, at 6.

 

Headnotes

• Per the PA Guide, at 34, a code or standard cannot be merely a recommendation, or allow for variances subject to discretionary enforcement by officials. 
  • Here, the Applicant argues the culvert upgrade is necessary to obtain permits.  However, FEMA finds NWP conditions are subjective and allow for significant discretion in implementation.
• FEMA policy provides three ways that the Agency may deem HM measures cost-effective.
  • Here, the HM measures do not satisfy any of the cost-effective prongs, as the proposed work is more than 100 percent of the repair cost estimate, and the Applicant has not provided a benefit cost analysis with a benefit cost ratio of 1.0 or greater.

 

Conclusion

The Applicant has not demonstrated that its requested change in SOW is required by codes or standards, or is eligible for Public Assistance funding as HM.  Accordingly, this appeal is denied. 

Appeal Letter

Appeal Analysis

Background

During the incident period of May 13-22, 2014, severe storms and flooding impacted the Town of South Valley (Applicant).  FEMA obligated Project Worksheet 503 on January 16, 2015, approving a scope of work (SOW) to reset two adjacent 40 foot (ft) long galvanized metal culverts and to replace ancillary road damage.[1]  

On February 7, 2018, the Applicant requested a change to the SOW.  Based on recommendations from its engineering firm, the Applicant requested approval to install: (1) an aluminum box culvert measuring 30 ft, 3 inches wide by 6 ft, 9 inches high by 36 ft, 6 inches long; (2) headwalls and wingwalls; and (3) a temporary bridge and temporary access road for residents.  The engineer’s estimate included the below work/costs: 

 

Item of Work

Requested Costs

Remove Existing Culvert

$10,000.00

HMP

$267,250.00

Road Detour Signage & Traffic

$9,000.00

Temporary Bridge

$4,000.00

Temporary Access Road

$5,000.00

Construction Survey

$4,000.00

$299,250.00

In support of the revised SOW, the Applicant submitted letters from its engineering firm, which proposed the larger aluminum culvert as a replacement culvert upgrade.  The firm noted the stream was 30-35 ft wide and cited to a 2015 Hydrology and Hydraulics study that stated the predisaster 7 ft diameter parallel culverts were undersized for the site because the predisaster culverts could only collectively discharge enough flow to pass a 3-year design flow.  In contrast, the firm predicted a 30 ft, 3 inches wide by 6 ft, 9 inches high by 36 ft, 6 inches long aluminum culvert would withstand a 100-year storm.  The firm stated this would provide a significant improvement to the residents and the ecology of the stream.  In a supporting memorandum and letter, the Grantee concurred with the second change in SOW request.

On August 24, 2018, FEMA issued a Request for Information (RFI) to the Applicant and the Grantee asking for clarification on the eligibility of the costs associated with the culvert upgrade.  It noted that hazard mitigation (HM) measures must be less than 100 percent of the eligible costs and therefore could not exceed $70,552.00 (the estimate for the construction work to be completed to restore the site to predisaster design).  The Applicant responded in an October 1, 2018 letter by stating that the work does not include an HM proposal (HMP).  Rather, the changes reflect a code and standard upgrade.  The Grantee transmitted the response to FEMA with a support letter.

On April 24, 2019, FEMA denied the culvert replacement upgrade.  It determined the requested change did not satisfy all five conditions of Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(d).  FEMA stated the Applicant had not demonstrated the proposed upgrades were reasonable, or that it enforced the code and standard it states required the upgrades during the time they were in effect. 

 

First Appeal

In a July 8, 2019 letter, the Applicant appealed FEMA’s denial of its requested change in SOW.  The Applicant submitted the U.S. Army Corps of Engineers (USACE) 2012 Nationwide Permit (NWP) within the State of New York and specifically cited to language from NWP conditions 2 and 9 to demonstrate the upgrade was required by codes and standards, and thus, satisfied 44 C.F.R. § 206.226(d).  The Grantee submitted a supporting memorandum and transmittal letter.

On November 1, 2019, FEMA issued a RFI, seeking: (1) a benefit cost analysis (BCA); and (2) an estimate and/or invoices for the engineering costs associated with the eligible work for the site.  The Applicant responded on December 2, 2019, providing: (1) a BCA indicating a benefit cost ratio (BCR) of .52; and (2) engineering invoices associated with preliminary investigative work, site visits, and development of the replacement culvert upgrade proposal.

On February 26, 2020, the FEMA Region II Regional Administrator issued the first appeal decision.  FEMA denied the requested culvert upgrade, finding it was ineligible for PA funding.  FEMA determined only costs to restore the site to predisaster design were eligible.  However, FEMA increased approved estimated costs for the repair to the metal culverts to correct for costs that the Agency previously inadvertently omitted.  It awarded the full requested costs for the temporary road/bridge and construction survey, and approved a portion of the requested engineering costs.[2]  In total, FEMA approved $97,332.36 in eligible costs for work to be completed that restored the site to predisaster design. 

In addressing the Applicant’s codes and standards argument, FEMA noted that while the Applicant cited to NWP grant conditions 2 and 9 for support, those requirements only identify “recommendations” for culvert replacements.  Further, FEMA determined the requested upgrade was not cost effective in accordance with FEMA policy.[3] 

 

Second Appeal

On May 28, 2020, the Applicant appealed the denial of its change in SOW request, reiterating its request for approval of the culvert upgrade, culvert removal costs, and full engineering expenses.[4]  The Applicant restates its argument that the larger culvert design is required in order to obtain permits from New York State Department of Environmental Conservation (NYSDEC) and USACE.  In support, it submits an August 18, 2017 new permit issued by NYSDEC, authorizing replacement of two existing 7-ft culverts with a single aluminum bottomless culvert approximately 30 feet in length with a rise of about 7 feet.  Next, the Applicant asserts that NYDEC determined in a May 14, 2020 permit modification, the request to replace the culverts in-kind did not satisfy Title 6 of New York Codes, Rules and Regulations (6 NYCRR) § 608.8 due to the potential consequences it may cause to the health and safety of people and other unnecessary damage to the natural resources.  Finally, to demonstrate the predisaster culverts are considerably undersized for future events, the Applicant produces various scientific texts predicting an increase in precipitation based on climate research.

The Grantee forwarded the appeal on August 26, 2020, setting forth supporting arguments.  The Grantee first argues the work is eligible as a codes and standards upgrade because both USACE and NYSDEC require that dual culverts be replaced as single culverts sized to span 1.25 of the stream-width unless there are site restrictions.  As there are no site restrictions, there is no basis to conclude the agencies could waive the condition.  In the alternative, the Grantee asserts the upgrade work is eligible HM because when the total repair costs are increased to accurately reflect all predisaster restoration costs, total HMP work is cost-effective as it represents a less than 100 percent increase over those repair costs.    

 

Discussion

Codes and Standards

Under section 406(e)(1)(A) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on the design of such facility as it existed immediately prior to the disaster and in conformity with current applicable codes, specifications and standards.[5]  For the costs of federal, state, and local repair or replacement standards which change the predisaster construction of a facility to be eligible, the code or standard must: (1) apply to the type of repair or restoration required; (2) be appropriate to the predisaster use of the facility; (3) be found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date or be a legal federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of owner of the facility; and, (5) for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.[6]  All five prongs must be met in order to be eligible for Public Assistance (PA) funding.[7]  Otherwise, funding will be limited to repairs necessary to bring the facility back to its predisaster design or construction.[8]  The code or standard cannot be merely a recommendation, or allow for variances subject to discretionary enforcement by officials.[9]

Although the Applicant argues permitting standards require the culvert upgrade, it must still establish all the requirements of 44 C.F.R. § 206.226(d) are met in order for FEMA to fund the upgrade, which it has not done in this appeal.[10]  First, the Applicant cites to the NWP.  While the terms of the NWP conditions offer guidance for construction, they do not mandate the adoption of specific design criteria.[11]  Even where specific design criteria are given, the NWP conditions frame such criteria in terms of recommendations, versus requirements for mandatory adherence.[12]  Insofar as the NWP conditions constitute standards for construction, they are subjective and allow for significant discretion in implementation.[13]  Therefore, the Applicant has not demonstrated the NWP requires the culvert replacement upgrade documented in its change in SOW request.

Second, the Applicant states NYSDEC determined replacing the culverts in-kind does not satisfy 6 NYCRR § 608.8.  However, this regulation simply speaks to the standards for the use and protection of water – that the basis for a permit will be a determination that the proposal is in the public interest (e.g., not endangering health, safety, or welfare, and not causing unnecessary damage to natural resources).   The state regulation does not require the requested upgrade.  Even the August 18, 2017 NYSDEC permit shows it merely authorized (but did not require) a 30-ft long culvert, which is 6 ft shorter than the upgrade requested on appeal. 

Last, the Grantee argues both USACE and NYSDEC require dual culverts be replaced as single culverts sized to span 1.25 of the stream-width unless there are site restrictions.  However, the Applicant’s engineering firm noted in its September 27, 2017 letter that the stream was 30-35 ft wide.  Therefore, relying on 30 ft as a minimum measurement, the requested 30 ft, 3 inch wide culvert would span 1.01 (not 1.25) of the stream width.  The requested upgrade does not satisfy the cited permit requirement.

Based on the above, FEMA denies the request to provide PA funding for the culvert upgrade as a code-driven requirement.[14]

 

Hazard Mitigation

The Stafford Act provides for the implementation of HM measures that are cost-effective.[15]  There are three ways that FEMA may deem hazard mitigation measures cost-effective: (1) a measure amounts to no more than 15 percent of the total eligible cost of the eligible repair work; (2) certain proscribed measures contained in Appendix A of FEMA’s HM policy that do not exceed the entire cost of the approved eligible repair work for the project (i.e., do not exceed 100 percent of the eligible cost of the eligible repair work); or, (3) even if the measure exceeds the cost of eligible repair work, the applicant demonstrates it is cost-effective through an acceptable benefit/cost analysis (e.g., FEMA’s BCA methodology).[16]  Per Appendix A, replacement of a destroyed drainage structure with multiple structures or a larger structure is a cost-effective mitigation measure if it does not exceed 100 percent of the project cost.[17]  A project is considered to be cost effective when the BCR is 1.0 or greater.[18]

Here, the Applicant has not demonstrated that the replacement culvert upgrade is cost-effective.  FEMA has approved a total of $97,322.36 in eligible costs for work to be completed to restore the site to predisaster design.[19]  Examining the Applicant’s engineering cost estimate, however, reveals a minimum of $267,250.00 in base costs that are solely attributable to the culvert upgrade.  This is more than 15 percent of the total eligible cost of the eligible restoration work.  Therefore, the HM measures fail the first prong of FEMA’s cost-effective evaluation.  Regarding the second prong, FEMA policy allows the Agency to approve HM measures that do not exceed 100 percent of the eligible cost of the eligible repair work when an applicant desires to replace a destroyed drainage structure with a larger structure.  Here, however, just the base costs associated with the change in SOW request are more than 250 percent of the repair cost estimate.  Therefore, the proposed work does not satisfy the second prong of FEMA’s cost-effective evaluation.  Finally, as the Applicant has not provided a revised BCA with a BCR of 1.0 or greater, it has not satisfied the prong.  Based on the above, the Applicant has not demonstrated its change in SOW request is eligible for funding as HM measures.

 

Conclusion

The Applicant has not demonstrated that its requested change in SOW is required by codes or standards, or is eligible for PA funding as HM.  Therefore, the appeal is denied.

 

[1] FEMA also approved work and costs associated with restoring two other culvert sites to predisaster condition, resulting in a large project obligation.

[2] FEMA only approved $1,980.00 of the requested $12,000.00 engineering costs because the remaining requested costs were tied to the ineligible work.

[3] Disaster Assistance Policy (DAP) 9526.1, Hazard Mitigation Funding Under Section 406 (Mar. 30, 2010).

[4] The Applicant also requests “additional costs of this appeal and remaining DAC to prepare and complete closeout to be added and reconciled at closeout.”  Memorandum, Second Appeal, at 9 (May 28, 2020).  As the specific costs to be incurred are unknown and not estimated, this request is not adjudicated in the second appeal decision.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(e)(1)(A), Title 42 United States Code (U.S.C.) § 5172(e)(1)(A) (2012); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226 (2013).

[6] 44 C.F.R. § 206.226(d).

[7] Public Assistance Guide, FEMA 322, at 34 (June 2007) [hereinafter PA Guide].

[8] DAP 9527.4, Construction Codes and Standards, at 2 (Feb. 5, 2008).

[9] PA Guide, at 34; FEMA Second Appeal Analysis, Pawnee (Cty.), FEMA-4225-DR-NE, at 3 (June 23, 2020) (citing FEMA Second Appeal Analysis, Pulaski Cty., FEMA-4144-DR-MO, at 6 (Aug. 7, 2017)). 

[10] See FEMA Second Appeal Analysis, Town of Warwick, FEMA-4020-DR-NY, at 6 (Mar. 12, 2019) (stating a permit requirement does not make an upgrade eligible for PA if all the requirements of 44 C.F.R. § 206.226(d) are not met). 

[11] Pulaski Cty., FEMA-4144-DR-MO, at 6.

[12] Id.

[13] Id.

[14] This also results in the additional requested engineering costs being denied as they are tied to ineligible work.  See PA Guide, at 40 (“[g]enerally, costs that can be directly tied to the performance of eligible work are eligible.  Such costs must [also] be reasonable and necessary to accomplish the work.”). 

[15] Stafford Act § 406(e)(1)(A)(ii), 42 U.S.C. § 5172(e)(1)(A)(ii); PA Guide, at 125; DAP 9526.1, Hazard Mitigation Funding Under Section 406, at 3.

[16] PA Guide, at 126; DAP 9526.1, Hazard Mitigation Funding Under Section 406, at 2.

[17] DAP 9526.1, Hazard Mitigation Funding Under Section 406, Appendix A, at 5.

[18] BCA Reference Guide, at 2-5 (June 2009).

[19] In contrast to the Grantee’s assertion in its second appeal letter, the $70,552.36 in approved costs for construction work to restore the site to predisaster design, include both removal and replacement costs.  See Memorandum from Disaster Assistance Representative, Grantee, to Disaster Assistance Officer, Grantee, at PDF 3-4 (Apr. 25, 2016) (separately listing $17,916.56 for removal costs and $52,635.80 for costs to replace in-kind).