44 C.F.R. § 206.223(a) specifies that to be eligible for financial assistance, an item of work must be required as the result of the declared disaster event. The Applicant did not describe how additional damages were a direct result of the disaster. 44 C.F.R. § 13.30(d)(1) states that Applicants must obtain prior approval from FEMA whenever a SOW revision is anticipated. The Applicant changed the footprint and size of the lift stations without obtaining approval from the Grantee or FEMA. The administrative record contains no evidence of Applicant’s notification to the Grantee or FEMA, nor of the Grantee or FEMA’s approval of, a change in the SOW for this project. 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.

From June 1 to August 1, 2011 severe storms and flooding from the Missouri River damaged two sewage lift stations (Facilities) at Big Lake State Park. FEMA prepared Project Worksheet (PW) 574 to repair the Facilities. At closeout, FEMA denied the costs because the Applicant failed to notify the Grantee and FEMA about deviations from the approved scope of work (SOW), and therefore FEMA was unable to perform the proper environmental reviews. On first appeal, the Applicant argued that: (1) it tried to repair the Facilities, but subsequently determined that the original parts were too damaged; (2) the replacement facilities were designed to replicate the original function, but didn’t include any capacity or function improvements; (3) the design, function, and capacity were not changed, though the footprint and some components were modified; and (4) the work is not an improved project since there were no significant changes. The Applicant concluded that no NEPA review was required and the project was categorically excluded because the work did not extend outside the original excavated footprint nor disturb new ground. The FEMA Region VII Regional Administrator denied the first appeal finding that the Applicant: (1) did not notify the Grantee or FEMA of additional damages; (2) exceeded the SOW; (3) pursued an improved project without obtaining advance approval from the Grantee or FEMA; and (4) did not differentiate between the costs incurred to complete the approved SOW and additional costs incurred to replace the Facilities. The RA also noted that the Applicant changed the footprint of the Facilities by adding an extra vault. On second appeal, the Applicant argues that it did not consider the necessary work an improved project and therefore did not notify FEMA.

Stafford Act § 406. 42 U.S.C. §§ 4331-4332. 44 C.F.R. §§ 13.30(d)(1), 13.43(a), 206.206(a), 206.223(a). Environmental Policy Memo #3, at 1. PA Guide, at 29, 100, 128, 140. Village of Waterford, FEMA -4020-DR-NY, at 4. Republic County Highway Department, FEMA-4230-DR-KS, at 4. City of Elizabeth, FEMA-4086-DR-NJ, at 6. Essex County, FEMA-4020-DR-NY, at 6. Rubio Cañon Land and Water Association, FEMA-1008-DR-CA, at 4. Village of Pardeeville, FEMA-1768-DR-WI, at 3.