Environmental and Historic Preservation Compliance – Hazard Mitigation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4241
Applicant	Sumter (County)
Appeal Type	Second
PA ID#	085-99085-00
PW ID#	PW 1108
Date Signed	2020-11-30T17:00:00

Summary Paragraph

From October 1 to 23, 2015, Hurricane Joaquin caused flooding in South Carolina.  The Applicant’s road above an earthen dam embankment (Facility) was damaged by flood waters and FEMA wrote a Project Worksheet (PW) to fund repairs to the road.  The Applicant hired a contractor, AECOM Technical Services Inc. (Contractor), which submitted a report assessing the Facility on June 13, 2016, noting additional damage and recommended upgrading the Facility with an emergency spillway.  The South Carolina Department of Health and Environmental Control reclassified the Facility from a class two to a class one dam on June 1, 2016, which necessitated revisions to the repairs.  FEMA wrote PW 1108 (subject of this appeal) in November 2017 for repair costs of $946,421.00 with a hazard mitigation proposal (HMP) of $603,195.00 for the emergency spillway.  The Applicant secured a contractor that began work on December 5, 2017.  FEMA requested an environmental assessment (EA) on May 9, 2018, which the Applicant provided on August 23, 2018.  On November 7, 2018, the Applicant notified FEMA that work had commenced prior to the EA being written and which was 90 percent complete.  FEMA issued a Determination Memorandum on April 3, 2019, denying all costs as it was non-compliant with the National Environmental Protection Act (NEPA).  The Applicant appealed in a letter dated May 20, 2019 and stated that the repair was eligible for a statutory exclusion from NEPA, as the work was returning the site to predisaster condition. Furthermore, the Applicant stated it received verbal approval from FEMA to begin the work.  On June 15, 2020, FEMA denied the first appeal as work began prior to FEMA’s environmental review and did not qualify for statutory exclusion from NEPA compliance.  On August 10, 2020, the Applicant filed a second appeal, reiterating its first appeal arguments. 

Authorities and Second Appeals

• 44 C.F.R. §10.8.
• National Environmental Policy Act § 4332.
• PA Guide, at 125-140.
• Columbus Regional Hospital v. FEMA, 708 F.3d 893.
• Kershaw (County), FEMA-4241-DR-SC, at 5.
• Town of Killington, FEMA-4022-DR-VT, at 3-4.

Headnotes

• The National Environmental Policy Act (NEPA) requires all federal agencies to consider the environmental impact of a proposed action as well as whether any alternatives exist, prior to obligating funds and beginning work.  Proceeding with permanent work before FEMA completes EHP reviews jeopardizes PA funding.
  • The Applicant did not afford FEMA the opportunity to comply with NEPA prior to beginning the work.  FEMA is therefore unable to determine that the project complies with EHP laws, regulations, and executive orders (EOs).

Conclusion

The Applicant did not afford FEMA the opportunity to comply with NEPA prior to beginning work, preventing the agency from determining that the project complied with EHP statutes, regulations, EOs and policies.  Therefore, the appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From October 1 to 23, 2015, Hurricane Joaquin created 1,000-year event levels of rainfall in certain regions of South Carolina.  The President declared a major disaster on October 5, 2015. 

Dam structure D-1444[1] (Facility) owned by Sumter County (Applicant) suffered disaster-related damage.  This structure is an earthen embankment dam with a two-lane paved roadway atop it. 

FEMA wrote Project Worksheet (PW) 976 to reimburse the costs of repairs to the roadway atop the Facility. 

The Applicant hired AECOM Technical Services, Inc. (Contractor) on April 11, 2016, to assess damage to the dam and recommend repairs.  The Contractor submitted a report dated June 13, 2016 which identified damages not accounted for in PW 976 and recommended the construction of an emergency spillway to reduce the potential for future overtopping.[2]  The South Carolina Department of Health and Environmental Control (SCDHEC) reclassified the Facility from a class two to a class one dam on June 1, 2016, necessitating revisions to the repairs.  The Applicant amended its agreement with its Contractor on July 22, 2016 to include the additional repairs and the recommended spillway.

FEMA and the Applicant met on August 15, 2017 to review the proposed repairs and improvements.[3]  FEMA prepared a new PW (1108, the subject of this appeal) in November 2017 with an estimated eligible repair cost of $946,421.00 for repair of the earthen dam and a Hazard Mitigation Proposal (HMP) of $603,195.00 for the emergency spillway.  The Applicant initiated work on December 5, 2017, with a projected completion of July 14, 2018, later extended to September 27, 2018.

FEMA’s Environmental and Historic Preservation (EHP) review raised concerns regarding the downstream and community effects of the added spillway, and on May 9, 2018, FEMA informed the Applicant that an environmental assessment (EA) was required.  The Applicant submitted the EA on August 23, 2018.  In a follow-up meeting on November 7, 2018, the Applicant informed FEMA that work was started prior to the preparation of the EA and was 90 percent complete.

FEMA issued a Determination Memorandum (DM) on April 3, 2019 denying costs for PW 1108, as FEMA did not comply with the National Environmental Protection Act (NEPA) because the Agency was unable to perform its required environmental reviews prior to construction, and the HMP was no longer eligible as the work was denied.  The DM also stated the HMP was a requirement due to SCDHEC’s reclassification and is considered an upgrade, which is ineligible for mitigation funding;[4] and the Applicant had not provided documentation to support that the HMP was cost-effective. 

First Appeal

The Applicant appealed FEMA’s determination for $1,662,159.39.[5]  The Applicant argued that the repair work was eligible for statutory exclusion from NEPA as the dam was being repaired to predisaster condition.  The Applicant claimed it did not anticipate an EA would be required prior to work commencing.  Furthermore, the Applicant claimed it received verbal permission from FEMA to commence the work once the PW was written.  The South Carolina Emergency Management Division (Grantee) forwarded the appeal in support of the Applicant’s position in a letter dated July 1, 2019.

FEMA Region IV Regional Administrator (RA) denied the appeal in a letter dated June 15, 2020.[6]  FEMA noted that the SOW developed in PW 1108 did not return the Facility to its predisaster condition.  The SOW for PW 1108 expanded on the SOW of PW 976 and required re-evaluation for compliance with NEPA.  As a result, PW 1108 did not qualify for statutory exclusion from NEPA review and the project and HMP were ineligible as the Applicant began work on the Facility prior to FEMA completing its EHP review. 

On June 19, 2020, the Grantee emailed FEMA regarding the assertion that FEMA verbally approved the Applicant’s request to commence work on PW 1108, which was not discussed in the appeal response.[7]  FEMA responded on June 23, 2020 and stated that the response was based on the documented merits of the appeal and not the unsupported assertion made by the Applicant.[8]  Furthermore, FEMA noted the administrative record shows FEMA informed the Applicant of the risks to funding inherent with commencing work prior to receiving an approved obligated PW that received full review.[9]

 

Second Appeal

In a letter dated August 10, 2020, the Applicant filed a second appeal that reiterates its first appeal arguments.  The Applicant provides documentation that it claims shows the project qualified for a categorical exclusion rather than a statutory exclusion, and would not require an EA, including a floodplain analysis in its submittal to support this statement.[10]  The Applicant also requests consideration for arbitration.[11]  The Grantee forwarded the second appeal on October 1, 2020 supporting the appeal and providing similar analysis to the Applicant.

 

Discussion

Environmental and Historic Preservation Compliance

NEPA requires all federal agencies to consider the environmental impact of a proposed action as well as whether any alternatives exist, prior to obligating funds and beginning work.[12]  When providing funds under the PA Program, FEMA must consider not only the Public Assistance eligibility requirements contained in Title 44 of the Code of Federal Regulations, but also a range of Federal laws, regulations, and Executive Orders (EO) that apply to the use of Federal funds.[13]  These laws, regulations, and EOs generally require the funding agency to ensure compliance prior to funding.  The size and type of project and project site and area conditions generally determine the level of review that must be performed.[14]  Reviews for compliance with these laws must be completed before FEMA approves funding and before work is started because the review may identify steps to be taken or conditions to be met before the project can be implemented.[15] 

Changes in the SOW may result in additional EHP compliance reviews and/or new permits.[16]  A project’s SOW may impact EHP resources; EHP staff must review the SOW to determine if modifications could reduce potential impacts.  Proceeding with permanent work before FEMA completes EHP reviews jeopardizes PA funding.[17]  However, a project is categorically excluded from environmental review when FEMA has found that it will have little or no environmental impact.[18]  If however, there is potential to affect protected natural or cultural resources, it cannot be categorically excluded and will require an EA.[19]  Finally, no approval given by field personnel outside of the obligation process can be considered legally binding.[20] 

FEMA obligated PW 976 on May 17, 2016 and included a SOW without changes to the original design of the structure.  FEMA included conditions in PW 976 that “any change to the approved [SOW] will require re-evaluation for compliance with NEPA and other Laws and Executive orders.”[21]  FEMA then wrote PW 1108 to reflect changes to the SOW, repairing damages and modifying the footprint of the Facility, including adding an emergency spillway and elevation of the roadway.  These changes deviated from the approved SOW in PW 976 and required re-evaluation for environmental compliance.

Because FEMA determined the work could potentially affect protected natural or cultural resources, an EA was required.  This is because the proposed SOW would not meet the categorical exclusion as the improvements involve potential impacts to upstream and downstream waters.[22]  In addition, the administrative record shows FEMA informed the Applicant multiple times of the risks of beginning work prior to the obligation of their projects.[23]  

The Applicant begun work on PW 1108 prior to the August 23, 2018 submittal of the EA, and, the work was 90 percent complete by the November 7, 2018 meeting with FEMA.  This prevented FEMA from completing necessary reviews as required by NEPA to determine if the project complied with EHP statutes, regulations, EOs and policies.

 

Hazard Mitigation

For hazard mitigation measures to be approved, they must be reviewed by FEMA to ensure eligibility, technical feasibility, environmental and historic preservation compliance, and cost effectiveness.[24]

The HMP, like the SOW for this project, was not given full approval and obligation under the FEMA EHP review process, and the work was commenced prior to full environmental review.  Therefore, the HMP for this project is not eligible.

 

Conclusion

The Applicant did not afford FEMA the opportunity to comply with NEPA prior to beginning work, preventing the agency from determining that the project complied with EHP statutes, regulations, EOs and policies.  Therefore, the appeal is denied.

 

[1] Also referred to as the Second Mill Pond Dam.

[2] Post-Disaster Condition Assessment Report, Second Mill Pond Dam (State ID D-1444), Sumter County, South Carolina, prepared by AECOM (June 13, 2016).

[3] FEMA uploaded the AECOM Technical Services, Inc. (contractor) report to EMMIE on October 31, 2017.

[4] Letter from Program Manager, FEMA, to Public Assistance Officer (PAO), South Carolina Emergency Management Division (SCEMD), Emergency Management Director, Sumter Cnty., (April 3, 2019) at 3-4  (citing Recovery Policy (RP) 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act)) (May 30, 2010).  

[5] Letter from Assistant Public Works Dir., Sumter Cnty., to PA Program Manager, FEMA, (May 20, 2019). The amount in dispute here contradicts the amount listed in EMMIE, $1,549,616.00.  No explanation for the difference is provided. 

[6] Letter from Regional Administrator, FEMA, to Dir., SCEMD, Emergency Mgm’t Dir., Sumter Cnty., (June 15, 2020).

[7] See Email from Dir., SCEMD, to Recovery Div. Dir., FEMA, (June 19, 2020, 1310 EST).

[8] See Email from Recovery Div. Dir., FEMA, to Dir., SCEMD, (June 23, 2020, 1034 EST) [hereinafter FEMA Region Response to Grantee].

[9] Id. at 1-2, See also Administrative Record Index 5, Exhibit #47.

[10] See 44 C.F.R. §10.8(d); PA Guide, at 129.  Specifically, a project is categorically excluded from NEPA when it appears that it will have little or no environmental impact.  While a project that is statutorily excluded from NEPA review is done when the work will restore a facility substantially to its condition prior to the disaster.

[11] See Robert T. Stafford Disaster Relief and Emergency Assistance Act §423(d)(1), Title 42, United States Code (42 U.S.C.) §5189(a) (2019).  As this disaster occurred in 2015, and the Applicant filed a second appeal, this appeal does not meet the requirements to be eligible for Section 423 Arbitration.  For further information on Section 423 Arbitration see: https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1219-public-assistance-arbitration-right_fact-sheet.pdf.

[12] National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §4332 (2012); see also Environmental Planning & Historic Preservation Policy 108.024.4, Projects Initiated Without Environmental Review Required by the National Environmental Policy Act, at 2 (Dec. 18, 2013) (stating it is FEMA policy that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for funding).

[13] 44 C.F.R. §10.8 (2014); Public Assistance Guide, FEMA 322, at 127-36 (July 2007) (listing numerous examples of applicable EHP laws, regulations, and EOs including NEPA, the Endangered Species Act, and the National Historic Preservation Act).

[14] PA Guide, at 127.

[15] Id. at 128.

[16] Id. at 139-40.

[17] FEMA Second Appeal Analysis, Kershaw (County), FEMA-4241-DR-SC, at 5 (Sep. 21, 2020); FEMA Second Appeal Analysis, Town of Killington, FEMA-4022-DR-VT, at 3-4 (Dec. 7, 2017).

[18] 44 C.F.R. §10.8(d); PA Guide, at 129.

[19] 44 C.F.R. §10.8(d)(3); PA Guide, at 129.

[20] See Columbus Regional Hosp. v. FEMA, 708 F.3d 893, 899 (7th Cir. 2013) (“That promise, if made, lacks legal significance. No field employee can commit the agency to pay more than the statute and regulations require.”).

[21] Project Worksheet 976, Sumter (County), Version 0 (May 17, 2016). 

[22] PA Guide, at 129. 

[23] See FEMA Region Response to Grantee.

[24] PA Guide, at 125.