Environmental Compliance - Scope of Work

Conclusion: FEMA properly deobligated funding based on the Grantee and Applicant’s noncompliance with permit requirements and the Applicant’s inability to establish that it operated under a valid permit authorization.  Additionally, FEMA properly exercised its discretion by deobligating funding.

Summary Paragraph:

From December 17, 2005 to January 3, 2006, heavy rains caused the Cosumnes River to flood and eroded the river’s levee at four sites.  FEMA prepared Project Worksheet (PW) 610 to repair the levee damage.  Upon environmental and historic preservation review, FEMA conditioned the receipt of PA funding on the Applicant’s implementation of conservation measures under the Endangered Species Act as well as applicable local, state and federal permits and requirements.  While work was underway, the United States Army Corps of Engineers (USACE) issued a cease and desist notice to the Applicant for completing work outside of its NWP 13 authorization period.  A representative from a local tribe also contacted USACE and FEMA to express concern over potential actions taken on sacred tribal lands.  After site inspections confirmed that tribal remains had been disturbed, FEMA deobligated all funding for this project, citing noncompliance with NWP 13 as well as that the work was outside the original scope of work and resulted in the disturbance of tribal remains.  On first appeal, the Applicant asserted that the disturbance was the act of a rogue contractor, was prohibited by the controlling contract, and was not authorized by the Applicant.  The Applicant also stated that it had filed an after-the-fact permit notification to cure the USACE NWP 13 violation.  The FEMA Region IX Regional Administrator denied the appeal, concluding that the Applicant had performed work outside the approved scope of work, violated national environmental policies and the conditions placed on the project, and was responsible for its contractor’s actions.  With submission of the second appeal, the Applicant provided its application to extend the original NWP 13 and requests FEMA consider the financial impacts of deobligating funds.

Authorities and Second Appeals

• 44 C.F.R. § 10.4(a).
• 44 C.F.R. § 206.44.
• 44 C.F.R. § 13.43.
• City of Fort Pierre, FEMA-1984-DR-SD, at 4.

Headnotes

• Pursuant to 44 C.F.R. § 10.4(a) FEMA is required to “act with care to assure that, in carrying out its responsibilities, including disaster planning, response and recovery and hazard mitigation and flood insurance, it does so in a manner consistent with national environmental policies.”
  • The Applicant has failed to comply with the grant requirement to operate under a valid permit at all times, or the measures it agreed to implement to satisfy permit requirements.
• Pursuant to 44 C.F.R. § 206.44, the arrangement between FEMA and a grantee is embodied in the FEMA-State Agreement, which sets forth the understandings, commitments, and conditions for the receipt of PA funding.  Per 44 C.F.R. §13.43 FEMA can take enforcement action in the event that a “grantee or subgrantee materially fails to comply with any term of an award…”
  • The legally binding requirements of the PA grant are embodied in FEMA regulation, the FEMA-State Agreement, and PW 610.  FEMA properly exercised its discretionary authority in deobligating funding.