In the Matter of CHEMUNG COUNTY, NEW YORK

March 11, 2025

CBCA 8019-FEMA

In the Matter of CHEMUNG COUNTY, NEW YORK

Jeffrey Walker, Assistant Attorney, Chemung County Law Department, Elmira, NY,

counsel for Applicant, and Andrew P. Avery, Commissioner, Chemung County Department

of Public Works, Horseheads, NY, appearing for Applicant.

Rayana Gonzales, Deputy Commissioner for Disaster Recovery Programs and

Alternate Governor’s Authorized Representative, and Joseph Stinson, Section Chief of

Recovery Administrative Support, New York State Division of Homeland Security and

Emergency Services, Albany, NY, appearing for Grantee.

Maureen Dimino and Anthony Homer, Office of Chief Counsel, Federal Emergency

Management Agency, Department of Homeland Security, Washington, DC, counsel for

Federal Emergency Management Agency.

Before the Arbitration Panel consisting of Board Judges LESTER, ZISCHKAU, and

CHADWICK.

ZISCHKAU, Board Judge, writing for the Panel.

Chemung County, New York (Chemung or applicant), seeks public assistance (PA)

funds under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford

Act), 42 U.S.C. §§ 5121–5207 (2018), for replacing a damaged gabion basket wall with a

sloped earthen embankment. Chemung and the Federal Emergency Management Agency

(FEMA) had initially agreed to replace the gabion basket wall with a sheet pile wall, and a

project worksheet was approved. FEMA, as required under the Stafford Act, performed

environmental and historical preservation reviews under federal standards, id. § 5159, and

according to the New York Statewide Programmatic Agreement (programmatic agreement).

During the process, Chemung’s engineers determined that a sloped earthen embankment was

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the best solution and less expensive than the sheet pile wall. After proceeding through

federal and state permitting procedures for the embankment project, Chemung submitted an

alternative project to the New York Department of Homeland Security (NYDHS), as grantee,

and began constructing the sloped earthen embankment. FEMA and NYDHS later

determined that the change should proceed as a scope of work (SOW) change request to

FEMA. Delays by NYDHS resulted in the request not being submitted to FEMA until

project construction was essentially complete. FEMA’s environmental and historical

preservation (EHP) office attempted to conduct an after-the-fact EHP review, but one of the

three solicited local tribal nations declined to participate. As a result, FEMA determined that

the project was non-compliant with the National Historical Preservation Act (NHPA), a

decision that also meant applicant’s project was not EHP-compliant. Based on this

determination, FEMA denied Chemung’s PA request. During this arbitration, FEMA also

claims that Chemung’s PA request should be denied because the damaged gabion basket wall

was only eligible for repair, not replacement. For the reasons stated below, we conclude that

Chemung’s sloped embankment project is ineligible for PA.

Background

In 2018, severe flooding damaged Berwick Turnpike, a roadway in Chemung County,

New York. Joint Stipulations Timeline at 1. The flooding damaged Berwick Turnpike’s

shoulder, guiderail, asphalt, and a gabion basket retaining wall used for erosion control.

FEMA’s Exhibit 20. The gabion retaining wall measured 200 feet long, five feet wide and

twelve feet high. FEMA’s Exhibit 2 at 1. After the President declared the flooding a major

disaster, Chemung requested PA, and FEMA created grants manager project 74846, project

worksheet 332 (PW 332) for the repair of Berwick Turnpike. Joint Stipulations Timeline

at 1.

When reviewing the project, NYDHS and Chemung discussed a cost-saving

alternative of using a sloped earthen embankment instead of repairing the damaged gabion

basket wall. Joint Stipulations Timeline at 1. A home was located very close to and in front

of the gabion basket wall, and the proposed alternative was to purchase the home, demolish

it and the gabion basket wall and then replace them with the sloped earthen embankment.

Applicant’s Exhibit E. On June 27, 2019, NYDHS contacted FEMA asking about the

feasibility of pursuing the sloped embankment scope. Grantee’s Revised Exhibit 18. The

FEMA representative responded that he would “take a look.” Id. It is not clear whether the

FEMA representative ever responded to NYDHS, but the record does indicate a number of

communications between FEMA and NYDHS concerning the project.

Moving forward with the sloped embankment project, Chemung passed a resolution

approving the purchase of the home adjacent to Berwick Turnpike. Joint Stipulations

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Timeline at 1. By December 11, 2019, applicant had purchased the home and was preparing

it for demolition. Grantee’s Revised Exhibit 18.

On January 13, 2020, NYDHS communicated with Chemung, stating that it had

spoken with FEMA about the “Berwick Turnpike Road and [g]abion basket [w]all issue” and

explained that to pursue the sloped embankment scope, the applicant needed to create a new

project dedicated to replacing the gabion basket wall and then submitting the sloped

embankment scope as an alternative project. Applicant’s Exhibit F. Chemung followed

NYDHS’s direction, and, by January 22, 2020, NYDHS had forwarded—to

FEMA—Chemung’s request to create a new project for replacing the gabion basket wall.

Joint Stipulations Timeline at 1.

FEMA created grants manager project 12734, project worksheet 243 (PW 243) for

replacing the gabion basket wall. Joint Stipulations Timeline at 1. After inspecting the

gabion basket wall on January 27, 2020, the parties identified PW 243’s SOW as replacing

the gabion basket wall with a sheet pile retaining wall. See id.; Grantee’s Exhibit 12;

FEMA’s Exhibit 2 at 2. NYDHS believed that FEMA needed to approve the sheet pile

retaining wall SOW before requesting to further change the scope of PW 243 to incorporate

the less expensive and technically superior sloped embankment scope. Statement of Joseph

Stinson at 5. Consequently, FEMA completed its EHP review for PW 243 with the

understanding that the applicant was replacing the gabion basket wall with a sheet pile

retaining wall. FEMA’s Exhibit 61.

As part of FEMA’s EHP review, it assessed whether the New York programmatic

agreement, which streamlines compliance with Section 106 of the NHPA, required FEMA

to consult with local tribal nations before approving PW 243. FEMA’s Exhibit 58 at 2-3.

Since the sheet pile retaining wall SOW did not expand beyond the footprint of the existing

gabion basket wall (which was intended to stabilize hazardous slopes in a transportation

right-of-way and would have confined excavation work to a natural slope of fifteen percent

or greater in an area with low archeological sensitivity), FEMA concluded that it did not need

to consult with the tribal nations before approving PW 243. Id.; FEMA’s Exhibit 48 at 56,

61. For the remaining components of the EHP review, FEMA found that the project

complied with the other federal environmental laws, including the Clean Air Act, Coast

Barrier Resources Act, Clean Water Act, Coastal Zone Management Act, Endangered

Species Act, Farmland Protection Policy Act, Migratory Bird Act, Wild and Scenic Rivers

Act, Magnuson-Stevens Fishery Conservation and Management Act, as well as state

environmental regulations and federal executive orders. FEMA’s Exhibit 61. Finding no

violations, FEMA determined the sheet pile retaining wall SOW was EHP-compliant.

FEMA’s Exhibit 2 at 6.

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Evidenced by all parties signing PW 243, as of April 3, 2020, the approved scope for

PW 243 was to replace the damaged gabion basket wall with a sheet pile retaining wall.

FEMA’s Exhibit 2 at 7. Furthermore, the EHP section of PW 243 explained that any change

to the sheet pile retaining wall SOW would “require re-evaluation for compliance with

NEPA [National Environmental Policy Act] and other [l]aws and [e]xecutive [o]rders.” Id.

at 6. On June 9, 2020, Chemung demolished the home adjacent to Berwick Turnpike. Joint

Stipulations Timeline at 2. On October 29, 2020, Chemung submitted the sloped

embankment scope to NYDHS as an alternative project for PW 243. Applicant’s Exhibit R.

Although the record does not detail the chronology of the work done after October 29, 2020,

Chemung completed the fill and grading of the slope embankment project on March 23,

2021. Joint Stipulations Timeline at 2.

After Chemung submitted the alternative project request, NYDHS focused its efforts

on the Coronavirus (COVID-19) pandemic recovery efforts. As a result, it was not until

March 15, 2021, shortly before project completion, that NYDHS contacted Chemung and

explained that to pursue the sloped embankment scope, Chemung needed to submit a SOW

change request, not an alternative project request. Joint Stipulations Timeline at 2. The next

day, Chemung submitted the SOW change request to NYDHS. Id. NYDHS did not forward

applicant’s SOW change request to FEMA until April 7, 2021, approximately two weeks

after Chemung completed construction on the sloped embankment scope. Id.

FEMA initially denied the SOW change and PA funding request for PW 243. Joint

Stipulations Timeline at 2. During the first appeal process, FEMA attempted an

after-the-fact EHP review. The sloped embankment work expanded the width of the

footprint by approximately fifty feet. Because of the footprint expansion, under the New

York programmatic agreement, the project did not qualify for the same exemptions as the

sheet pile retaining wall scope, and FEMA needed to consult with local tribal nations for

NHPA compliance. FEMA contacted three tribal nations for the after-the-fact consultation.

FEMA’s Exhibit 12. Two of the tribal nations had no objection to the project. The third,

Seneca Nation, responded to FEMA that it would not participate because Chemung had

already completed the sloped embankment, stating that an after-the-fact consultation was not

meaningful. FEMA’s Exhibit 6. Consequently, FEMA’s EHP review staff deemed the

after-the-fact tribal consultation infeasible. Since this determination meant Chemung’s SOW

change request was non-compliant with NHPA, FEMA’s EHP staff determined that

Chemung’s SOW change request was NHPA non-compliant. Based on EHP’s

determination, FEMA’s Regional Administrator denied applicant’s first appeal.

Thereafter, Chemung filed a request for arbitration with the Board.

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Discussion

FEMA denied Chemung its requested PA because the sloped embankment project did

not achieve EHP compliance. FEMA now also contends that the damaged gabion basket

wall was only eligible for repair, not replacement. We address FEMA’s bases for denial

below.

The Public Assistance Program and Policy Guide (PAPPG) (Apr. 2018) explains that

a damaged facility is eligible for replacement if the estimated repair cost is greater than fifty

percent of the estimated replacement cost. PAPPG at 101. FEMA’s newly submitted report

claims that the damage to the gabion basket wall was minor and easily repairable. Also,

based on an email from Chemung’s engineer stating that gabion basket retaining walls are

not to be used in areas prone to flooding, FEMA claims Chemung wanted to replace the

gabion basket wall regardless of whether it was eligible for replacement.

Based on the record before us, including the contemporaneous determinations at the

time the damage was incurred, we find that the gabion basket wall was eligible for

replacement. Through PW 243, FEMA approved the replacement of the gabion basket wall

with a sheet pile retaining wall. This determination was made after a joint site visit on

January 27, 2020, and based on contemporaneous engineering analyses. In contrast,

FEMA’s new report relies on site photos and postdates the damage-causing disaster by

almost six years.

EHP reviews ensure that PA projects comply with NEPA, NHPA, as well as other

federal and state environmental and historical preservation laws, regulations, and executive

orders. PAPPG at 166. If an applicant wants to change the scope of a permanent work

project, applicant must notify FEMA and provide FEMA with an opportunity to perform an

EHP review. Id. at 136-37. When an applicant changes scope prior to FEMA conducting

an EHP review, FEMA loses the ability to consider changes to the project that would

ameliorate adverse effects to the environment and historical properties. Id. at 86.

Nevertheless, the regulations, agreements, and executive orders included in an EHP review

permit an after-the-fact review process. The New York programmatic agreement expressly

permits an after-the-fact review process. FEMA’s Exhibit 48. If an applicant “initiated an

[u]ndertaking without willful intent to avoid the requirements of this Agreement or Section

106 of NHPA” and the undertaking requires review, then FEMA’s EHP review staff

determines the feasibility of an after-the-fact tribal consultation. FEMA’s Exhibit 48 at

27-28. If it deems the after-the-fact tribal consultation infeasible, it communicates this

determination to the applicable FEMA funding program. Id. The applicable FEMA funding

program then considers this determination when deciding whether to fund the project. Id.

at 28.

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Here, NYDHS submitted Chemung’s SOW change request after Chemung completed

the sloped embankment scope. Although the timing of the submission jeopardized funding,

FEMA followed the procedures explained above to pursue an after-the-fact tribal

consultation. When the Seneca Nation refused to participate, FEMA determined that

applicant’s project did not comply with NHPA. This determination also meant applicant’s

project would not meet EHP compliance. Since Chemung’s project did not achieve EHP

compliance, FEMA denied applicant’s PA request.

Chemung and NYDHS argue that FEMA shares responsibility for the delayed EHP

review. NYDHS’s June 27, 2019, email exchange with FEMA asking about the sloped

embankment scope’s feasibility and NYDHS’s January 13, 2020, email to applicant stating

that NYDHS had spoken with FEMA about how to approve the sloped embankment scope

provide evidence that NYDHS and Chemung communicated with FEMA about the sloped

embankment scope well before FEMA received applicant’s SOW change request in April

2021. While NYDHS and FEMA did not communicate well on the change to a sloped

embankment project and Seneca Nation had been consulted for historical preservation on an

earlier project from 2012 involving this same area, we are not inclined to disturb the

determination by the Regional Administrator. Although we do not find any of the other EHP

criteria as precluding eligibility, Seneca Nation’s objection prevented NHPA compliance and

was not resolved by NYDHS, Chemung, or FEMA to allow for EHP compliance.

Decision

Chemung’s request for PA funding is denied.

Jonathan D. Zischkau

JONATHAN D. ZISCHKAU

Board Judge

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge

Kyle Chadwick

KYLE CHADWICK

Board Judge