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Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4367
Applicant	York (Town of)
Appeal Type	Second
PA ID#	031-87985-00
PW ID#	PW 48
Date Signed	2020-09-16T16:00:00

Summary Paragraph

From March 2-8, 2018, coastal surges produced by severe storms damaged a section of Long Beach Avenue, a road maintained by the Applicant.  FEMA prepared Project Worksheet (PW) 48 to document permanent work to repair the damage.  However, FEMA later determined that Long Beach Avenue was a federal-aid highway.  As such, it was not considered a public facility under the Stafford Act, and work to restore it was ineligible for PA funding.  FEMA also determined that the repairs were eligible for assistance under the Federal Highway Administration’s (FHWA) Emergency Relief (ER) program.  The Applicant appealed and asserted that a combination of state law, Maine Department of Transportation (DOT) policy, and federal policy prevented it from applying for and receiving FHWA funding to repair Long Beach Avenue.  The FEMA Region I Regional Administrator denied the appeal.  FEMA confirmed that Long Beach Avenue was a federal-aid highway; thus, it was not a public facility, and was eligible for funding through the ER program.  The Applicant submitted a second appeal, reiterating its prior arguments and requesting $69,166.05 for the repairs.  In its appeal transmittal, the Maine Emergency Management Agency argues that federal regulations give FEMA the discretion to fund the repairs.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 23 U.S.C. § 125.
• 44 C.F.R. § 206.226(a)(1).
• 23 C.F.R. Part 668.
• PAPPG, v3.1, at 116.

Headnotes

• Per 44 C.F.R. § 206.226(a)(1), generally, disaster assistance will not be made available under the Stafford Act when another federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.  FHWA has authority to restore federal-aid highways under the ER program.
  • Maine DOT and FHWA classify Long Beach Avenue as a federal-aid highway.
  • Therefore, FHWA has specific authority to fund repairs for disaster-related damages to Long Beach Avenue, and permanent work for the restoration is not eligible for PA funding.

Conclusion

Because Long Beach Avenue is classified by FHWA as a federal-aid highway, FHWA has specific authority to fund repairs for disaster-related damages.  Accordingly, per FEMA policy, the work is not eligible for PA funding.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From March 2 through 8, 2018, severe storms and flooding impacted southern Maine.  Storm surge along the coast damaged roadways maintained by the Town of York (Applicant).  FEMA prepared Project Worksheet (PW) 48 to document Category C (Roads and Bridges) permanent work to repair damages to Long Beach Avenue.

In a July 9, 2019 Determination Memorandum, FEMA found that work to repair Long Beach Avenue was ineligible for Public Assistance (PA) funding.  FEMA noted that the Maine Department of Transportation (DOT) classified Long Beach Avenue as a “major urban collector,” and as a result it was further classified by the Federal Highway Administration (FHWA) as a federal-aid highway.[1]  As such, FEMA determined that Long Beach Avenue did not meet the definition of a public facility under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).[2]  Moreover, the federal-aid classification meant it was eligible for assistance under FHWA’s Emergency Relief (ER) program.  Since another federal agency had specific authority to fund the disaster-related repairs, FEMA determined it was prohibited from providing PA funding to restore Long Beach Avenue.

 

First Appeal

The Applicant submitted its first appeal via letter dated September 2, 2019, requesting FEMA reverse the initial eligibility decision and approve PA funding totaling $69,166.05 for the repairs.[3]  The Applicant stated that Long Beach Avenue was also designated as U.S. Route 1A, a state highway, and noted that it has a legal responsibility for maintaining such roads within an “urban compact area” boundary established by Maine DOT.[4]  The Applicant cited a state law, which it asserted required maintenance of local roads “at the sole expense of the Town,” and argued that “Maine DOT rules” considered the repairs to Long Beach Avenue under PW 48 to be “legally the sole responsibility of the [Applicant].”[5]  However, it stated that federal policy required it to request and receive FHWA funding through Maine DOT.

Thus, the Applicant claimed that a combination of federal and state rules prevented it from applying for and receiving FHWA funding for the repair of Long Beach Avenue.  In this light, the Applicant asserted that: (1) Long Beach Avenue was a “non-federal-aid highway”[6] that met the definition of a public facility under federal regulations; (2) the only available option for federal assistance was through FEMA; and, therefore, (3) repairs to Long Beach Avenue were eligible for PA funding, as there was no possibility for duplication of benefits.  The Maine Emergency Management Agency (Grantee) transmitted the appeal via letter dated September 6, 2019, requesting FEMA reconsider the denial of PA funding.

The FEMA Region I Regional Administrator denied the appeal on December 5, 2019.  FEMA determined that Long Beach Avenue was classified as an urban collector roadway, which the Applicant acknowledged in its first appeal letter.  Under federal law and FHWA policy, such roads are considered federal-aid highways.  As a federal-aid highway, FEMA again determined that Long Beach Avenue was not eligible for permanent restoration assistance under the Stafford Act, and was therefore ineligible for funding.  FEMA found that the state law referenced by the Applicant “does not control” the definition of a federal-aid highway found in federal law, regulation, and policy.[7]

Additionally, FEMA noted that FHWA has specific authority to provide financial assistance for federal-aid highways, including Long Beach Avenue, through the ER program.  Federal regulations prohibit PA funding for permanent work if another federal agency has specific authority to provide assistance.  Because FHWA had specific authority for funding the repairs to Long Beach Avenue, FEMA determined that the repairs were ineligible for PA funding.

Lastly, FEMA determined that though Maine state law requires the Applicant to repair Long Beach Avenue, it does not expressly prohibit Maine DOT from applying for or distributing assistance from FHWA.  Regardless, FEMA found that the application of Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(a), which prohibits the duplication of benefits, “does not depend on nor is [it] at the mercy of state law.”[8]

 

Second Appeal

The Applicant submitted a second appeal via letter dated January 30, 2020, requesting FEMA reverse its earlier determinations and award $69,166.05 in PA funding for the repairs to Long Beach Avenue.  The Applicant reiterates its first appeal arguments, and submits records of predisaster maintenance and capital paving projects for Long Beach Avenue.  The Applicant states that FEMA considered similar damages from past disaster events to be eligible for PA funding.  It asserts that state law (i.e., Title 23, Section 754 of the Maine Revised Statutes) and agreements with FHWA limit the latter’s statutory authority to provide funding; specifically, FHWA can only fund capital improvement projects.  In this light, the Applicant argues that “disaster caused damages and maintenance are not included in the FHWA funding,” and, consequently, Long Beach Avenue is not a federal-aid road.[9]

The Grantee transmitted the appeal via letter dated January 31, 2020, expressing support for the Applicant’s claim.  The Grantee states that Maine DOT did not apply for funding through the ER program in the wake of the disaster, given that damage to federal-aid roads did not meet the FHWA threshold.  It agrees that FHWA classifies Long Beach Avenue as a federal-aid highway,[10] however, it argues that because funding was not available through the ER program, Long Beach Avenue should be considered a public facility.

Additionally, the Grantee asserts that the state “is legally prohibited from providing FHWA funding” by Title 23, Section 754 of the Maine Revised Statutes.  It notes that federal regulation states that assistance is “generally” not provided when another federal agency has specific authority to fund repairs, and argues that FEMA therefore has the discretion to provide funding if another federal agency “is not capable of participating.”[11]  The Grantee asserts that FEMA has used its discretion to provide funding under previous declarations, when there was no possibility for a duplication of benefits.[12]

 

Discussion

Section 406 of the Stafford Act authorizes FEMA to fund the restoration of public facilities damaged or destroyed by a major disaster,[13] as implemented by 44 C.F.R.  44 C.F.R. § 206.226(a)(1) provides that, generally, disaster assistance will not be made available under the Stafford Act when another federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.[14]  FEMA policy also states that permanent work to restore roads and bridges is eligible unless restoration is under specific authority of another federal agency such as FHWA.[15]

FHWA has authority to restore public roads under the ER program.[16]  Roads that are eligible for ER assistance are identified as federal-aid routes, which include public roads classified as major urban collectors.[17]  Federal-aid routes are not eligible for permanent work even if the ER program is not activated or if the program is activated but FHWA does not provide funding for the work.[18]

For the present appeal, a searchable roadway classification map, available to the public on the Maine DOT website, shows that the section of Long Beach Avenue at issue carries a federal functional classification as a collector (specifically, a “Major Collector”), and is further classified as an urban roadway.[19]  Therefore, the available information on the Maine DOT website confirms that the section of Long Beach Avenue at issue is functionally classified as a major urban collector.  As such, it is considered a federal-aid highway.

Federal-aid highways such as Long Beach Avenue are not considered eligible public facilities for the purposes of funding from the PA grant program.[20]  Moreover, since the damages at issue are on a federal-aid highway, federal law and regulations provided FHWA with the specific authority to fund the repairs, through the ER program.  Consequently, permanent work to restore Long Beach Avenue is not eligible for PA funding and remains ineligible even if the ER program was not activated, or if the program was activated but FHWA does not provide funding for the work.[21]

 

Conclusion

Because Long Beach Avenue is classified by FHWA as a federal-aid highway, FHWA has specific authority to fund repairs for disaster-related damages.  Accordingly, the work is not eligible for PA funding.  Therefore, this appeal

 

[1] FEMA Pub. Assistance Determination Memorandum, Town of York (Project Worksheet 48), at 4 (July 9, 2019).

[2] Id. at 4.  FEMA noted the definition of a public facility as “[a]ny non-federal-aid street, road, or highway.”  Thus, since Long Beach Avenue was a federal-aid highway, it did not meet the definition of a public facility provided under the Stafford Act; see Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, § 102(10)(B), 42 U.S.C. § 5122(10)(B) (2018).

[3] The Applicant also appealed PW 54 (Shore Road) in the September 2, 2019 first appeal letter.

[4] Letter from Dir. of Pub. Works, Town of York, to Pub. Assistance Officer, Mitigation, Planning, and Recovery Div., Me. Emergency Mgmt. Agency (MEMA), at 4, 8 (Sept. 2, 2019).  The Applicant provided maps and a written description from Maine DOT, which outline the York “urban compact area” boundary.  The boundary encompasses the section of Long Beach Avenue that was damaged during the disaster.

[5] Id. at 5, 8.  The Applicant cited and attached Title 23, Chapter 13, Section 754 of the Maine Revised Statutes, which states in part, “all state and state aid highways within the compact areas of urban compact municipalities … must be maintained in good repair by the town in which the highways are located at the expense of the town.”  The Applicant did not note the specific Maine DOT policies that it claimed applied, but did provide a letter from Maine DOT that stated in part, “[u]nder this statute [i.e., Title 23 of the Maine Revised Statutes] Federal highway funds are not available to the [Applicant] for maintenance and repairs;” Letter from Dir. of Maint. and Operations, Me. Dep’t of Transp., to Representative, Town of York, at 1 (Aug. 4, 2019).

[6] Id. at 8.

[7] FEMA First Appeal Analysis, York (Town of), FEMA-4367-DR-ME, at 5.  FEMA cited definitions found in Title 23 United States Code § 101 and FHWA’s Emergency Relief Manual (Federal-Aid Highways).

[8] Id. at 7.

[9] Letter from Chief of Police/Emergency Mgmt. Agency Dir., Town of York, to Acting Dir., MEMA, at 2-3 (Jan. 30, 2020) (“[p]er the Maine DOT Statute and practice/agreement with FHWA, only those capital improvement projects and associated funding relies with the Statutory Authority under FHWA [sic]”).  FEMA could find no basis in the administrative record on which to verify the Applicant’s assertion that FHWA funding was only available for capital improvement projects.

[10] Letter from Acting Dir., MEMA and Alternate Governor’s Authorized Representative, MEMA, to Reg’l Adm’r, FEMA Region I, at 2 (Jan. 31, 2020) (“[w]hile FHWA is correct in their base assessment deeming the Long Beach Avenue as a Federal Aid Highway, they were not making a determination of eligibility under FEMA’s programs, nor were they providing an assessment of Maine’s law”).

[11] Id.

[12] On this matter, FEMA notes that each project is evaluated on a case-by-case basis.  Eligibility decisions under separate declarations, if made in error, have no impact on the eligibility of funding discussed in the present appeal.

[13] Stafford Act § 406(a)(1)(A).

[14] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(a)(1) (2017).

[15] Public Assistance Program and Policy Guide, FP 104-009-2, at 116 (Apr. 1, 2018) [hereinafter PAPPG].

[16] Id.  See 23 U.S.C. § 125 (authorizing the ER program) and 23 C.F.R. Part 668 (authorizing FHWA to administer the ER program).

[17] PAPPG, at 116.  FHWA groups roadways into three functional classifications: arterials, collectors, and locals; collector roadways are further classified as major or minor collectors.  All functional classification categories exist in both urban and rural areas; Fed. Highway Admin., Highway Functional Classification Concepts, Criteria, and Procedures, at 2, 6 (2013).  ER program guidance confirms that federal-aid highways damaged as a direct result of a natural disaster are eligible for funding; Fed. Highway Admin., Emergency Relief Manual (Federal-Aid Highways), at 2 (May 31, 2013).

[18] PAPPG, at 116.

[19] Me. Dep’t of Transp., Public Map Viewer, https://www.maine.gov/mdot/mapviewer/ (last visited July 30, 2020).

[20] Supra note 2; see FEMA Second Appeal Analysis, City of Fort Pierce, FEMA-1785-DR-FL, at 2 (Aug. 1, 2011).

[21] Though not in effect for the present disaster, the Public Assistance Guide is illustrative on this matter.  For example, it states: “[b]ecause restoration of certain facilities falls under the authority of FHWA, the Stafford Act specifically excludes permanent restoration of them under the PA program.  As a result, Public Assistance for the permanent repair of these facilities is not available, even if the Emergency Relief Program is not available.  Therefore, there will be times when no assistance is available for the permanent repair of some facilities;” Public Assistance Guide, FEMA 322, at 26 (June 2007).