Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 000-UCPOY-00; Louisiana Department of Natural Resources
PW ID# 1660, 1661, 1664 & 1668; Isle Dernieres Restoration Projects
The Isle Dernieres Restoration Projects were built in the 1990s to restore barrier islands off the Gulf Coast of Louisiana. According to the Louisiana Coastal Wetlands Conservation and Restoration Task Force, these projects were constructed to create and/or restore barrier islands. The projects consist of placement of dredged fill, construction of containment dikes, placement of vegetation (including marsh grass), and placement of sand fencing to help stabilize the dunes. These islands buffer coastal areas from the storm surges that accompany hurricanes and tropical storms. This program was administered by the Louisiana Department of Natural Resources (LDNR) with joint sponsorship of the Environmental Protection Agency under the Coastal Wetlands Planning, Protection, and Restoration Act.
Hurricane Lili (FEMA-1437) made landfall in Louisiana on October 1, 2002, resulting in damages to LDNR projects on four of these islands. The Federal Emergency Management Agency (FEMA) prepared Project Worksheets (PWs) for these damaged projects as part of LDNRs request for Public Assistance funding under Category G to restore these projects to pre-Hurricane Lili conditions. Damage to these projects consisted of destruction of sand fences and erosion of project sand fill. The requested scope of work included replacement of the sand fences and sand fill to what was reported as pre-disaster conditions. Quantities of materials and estimated costs are summarized below.
PW No. Sand Fence (LF) Fill (CY) Estimated Cost Eligible Costs
1660 5,700 80,038 $970,029 $0
1661 5,300 74,715 $921,153 $0
1664 30,000 16,494 $628,050 $0
1668 8,100 288,000 $2,750,988 $0
LF = linear feet
CY = cubic yards
In a letter dated March 10, 2004, the Louisiana Office of Homeland Security and Emergency Preparedness advised the LDNR that the four PWs, in their entirety, were determined to be ineligible for Public Assistance funding. The letter referenced a February 1719, 2004, meeting between the LDNR and FEMA during which the status of the projects was discussed. FEMA indicated in this meeting that the projects were ineligible for assistance, as they did not comply with the maintenance requirements necessary to be considered an improved and maintained natural feature, as defined at
44 CFR § 206.201(c) and § 206.226(i)(2)(ii). [Note that § 206.226(i)(2)(ii) is now codified as § 206.226(j)(2)(ii).]
LDNR submitted a first appeal of FEMAs determination that the four PWs were not eligible for funding to the Louisiana Office of Homeland Security and Emergency Preparedness on April 28, 2004, which forwarded the appeal to FEMA on April 30, 2004. An enclosure entitled Storm Recovery Procedures dated July 16, 2003, was submitted with the appeal.
The LDNR asserted the following in its appeal:
These projects are not beach nourishment projects but components of an ecosystem restoration project such that the beach eligibility criteria do not apply. The goal of these four projects is not to sustain the island in an improved condition, but to allow the island to develop naturally by creating back barrier marshes to catch dune material during storm events.
The projects do not have specific maintenance plans because the State does not want to dedicate large sums of funds to specific projects; rather, LDNR monitors each project following storms that could affect the projects and allocates funds where they are most needed.
The four projects are components of Louisianas Coastal Ecosystem Restoration Program and should not be evaluated as separate projects, but as part of the larger program. Therefore, the overall maintenance of the ecosystem project, rather than maintenance of individual projects, makes these four projects eligible for FEMA funding.
In a letter dated July 9, 2004, the Regional Director denied that portion of the appeal regarding the eligibility of the sand restoration portion of the projects for reimbursement. The basis of denial was the lack of a regular maintenance program necessary for the sand restoration to qualify as an improved and maintained natural feature as defined at 44 CFR § 206.201(c) or as a beach as defined at 44 CFR § 206.226(i). [Note that § 206.226(i)(2)(ii) is now codified as § 206.226(j)(2)(ii).]
However, the work associated with the repair and replacement of the sand fences was found eligible and revised PWs were subsequently prepared for the cost of replacing the damaged sand fences.
The LDNR submitted a second appeal to the Louisiana Office of Homeland Security and Emergency Preparedness by letter dated September 8, 2004, which forwarded the appeal to FEMA on September 10, 2004. The second appeal is similar in substance to the first appeal, but included an updated version of the Storm Recovery Procedures dated August 19, 2004. These procedures outline inspection activities that would take place after a storm event occurs.
The LDNR asserts that the restoration projects should be considered eligible facilities on the basis that the barrier islands are maintained in order to reverse coastal erosion. As was stated in their first appeal, LDNR believes that these projects should not be considered as a beach, asserting that this is an ecosystem restoration project that was not meant to stabilize the island, but to allow for the islands to develop naturally. The appeal also states that major erosion or loss of material from the islands is not anticipated unless they are affected by a hurricane or tropical storm. However, the LDNR also states that the goal of the project is to create back barrier marshes that will catch the dune material during storm events.
Ecosystem restoration projects typically have the purpose of restoring natural conditions of a degraded ecosystem structure, function, and dynamic processes to a less degraded, more natural condition. FEMA regulations require that for a natural feature to be considered an eligible facility, the feature must be improved and maintained.
FEMAs Public Assistance Guide (FEMA 322) further describes the eligibility criteria for natural features by stating the following:
The improvement of a natural feature should be based on a documented design that changes and improves the natural characteristics of the feature.
Upon completion of an improvement, a subsequent measurable difference in the performance over the unimproved natural feature should be shown.
The maintenance of this improvement must be done on a regular schedule and to standards to ensure that the improvement performs as designed. It is the improvement itself that must be maintained for the natural feature to be considered a facility.
While the restoration project includes certain constructed features within the existing barrier islands, the design of the project allows for the islands to develop naturally rather than maintain a strict design standard. The project is intended to experience erosion to some degree during storms as a part of its natural migration. In fact, the original design for this project was to allow for the catchment of dune material in the back barrier marshes during a storm event, which is what would be expected to have occurred during the hurricane. Further, as indicated by LDNR, the projects do not have specific maintenance plans, but rather, the Storm Recovery Procedures provided by LDNR outline only inspection activities that would take place after a storm event occurs. These procedures do not include plans to restore damage or losses that occur to the project after a storm event.
Accordingly, while certain improvements to the islandsnal features. Therefore, the barrier island projects do not meet the eligibility criteria for improved and maintained natural features and cannot be considered eligible facilities.
Based on a review of the information provided in LDNRs second appeal, the Isle Dernieres Restoration Projects do not meet FEMAs definition of improved and maintained natural features as defined at 44 CFR § 206.201(c) and as thus, are not eligible facilities within FEMAs Public Assistance Program. Accordingly, the replacement of the eroded sand is not eligible for Public Assistance funding. The appeal is denied.