Scope of Work

Conclusion: Stanley County changed the scope of work and did not afford FEMA the opportunity to conduct a historic preservation review and consultation with the SHPO.  As such, the work is ineligible.

Summary Paragraph

From March 11, 2011 through July 22, 2011, severe storms caused flood waters to wash out the Applicant’s road, and damaged a corrugated metal pipe (CMP) culvert.  FEMA prepared Project Worksheet (PW) 2167 obligating funds for repairs to the Applicant’s road and culvert, as well as a mitigation measure to replace and relocate the CMP culvert.  Based on the PW’s Scope of Work (SOW), FEMA conducted an environmental and historic preservation (EHP) compliance review, and prepared a Record of Environmental Consideration (REC).  The REC stated that the Applicant complied with the National Historical Preservation Act (NHPA).  After construction was completed and during closeout of the project, FEMA determined the Applicant changed the SOW without informing the South Dakota Office of Emergency Management (Grantee) or FEMA, and deobligated funding.  FEMA noted that the Applicant failed to comply with the REC, as the Applicant obtained borrow material from an excavated pit, which was an unapproved source and failed to produce a mine license issued by the State Historic Preservation Office (SHPO).  The excavated pit did not undergo a consultation for ground disturbance or for the disposal of fill.  In addition, the SHPO determined the Applicant did not comply with federal historical preservation regulations.  The Applicant appealed claiming that it constructed the project within normal construction tolerances detailed in its construction plans and the excavated pit was not an offsite borrow site to obtain fill, thus the scope of work did not change.  The Regional Administrator (RA) denied the appeal.  In his decision, the RA determined that based on photographs taken before and during construction of the project, the Applicant performed excavations and grading outside of the Applicant’s right of way (ROW).  The RA concluded that NHPA required the Applicant to afford FEMA an opportunity to evaluate the impact of the project and consult with SHPO before approving grant funding to ensure historic properties are adequately considered.  The Applicant appeals the RA’s determination, contending it completed the project within the scope of the plans, which FEMA had possession of prior to construction.  FEMA finds that the Applicant changed the approved SOW and did not afford FEMA the opportunity to conduct an historic preservation review and to consult with the SHPO, as required by Section 106 of the NHPA.  Accordingly, the work is not ineligible.

Authorities and Second Appeals

• Stafford Act § 406.
• NHPA § 106.
• 36 C.F.R. Pt. 800.
• 44 C.F.R. §§ 13.30 and 13.37.
• PA Guide, at 127, 128, 130-131.
• DAP 9560.3, Programmatic Agreement-Historic Review, at 6.
• FEMA Second Appeal Analysis, Villa Del Monte Mutual Water Company, FEMA-1646-DR-CA, at 2 (Jun. 9, 2010).

Headnotes

• Stafford Act § 406, NHPA § 106, and 36 C.F.R. Pt. 800 collectively allow FEMA to fund repair and mitigation work, but require FEMA to conduct an historic preservation review and consult with the SHPO before work is initiated on a project.
  • The Applicant did not afford FEMA the opportunity to conduct a review prior to changing the SOW.  As such, FEMA could not consult with the SHPO and was noncompliant. 

• Pursuant to 44 C.F.R. § 13.30(d)(1), an applicant must obtain prior approval of FEMA when it makes any revision to the scope of the project.
  • The Applicant failed to receive approval from FEMA prior to changing the approved SOW.