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Second Appeal Analysis
PA ID# 055-36060; Town of Kitty Hawk
PW ID# 12; Oceanfront Beaches
In September 2003, Hurricane Isabel caused storm erosion damage to the Town of Kitty Hawks (Applicant) frontal barrier dune. Federal Emergency Management Agency (FEMA) inspectors assessed the damage and determined that the erosion on the dunes left improved property susceptible to storm surge and wave action from a storm of a 5-year or less frequency. Preliminary damage assessments performed by FEMA inspectors estimated the total sand loss for the community at approximately 72,000 cubic yards. However, the areas eligible for emergency berm placement were estimated to have a total sand loss of approximately 43,000 cubic yards. Project Worksheet (PW) 12, dated September 28, 2003, provides for 43,000 cubic yards of sand to be placed over three stretches of the Kitty Hawk oceanfront. It was noted in PW 12 that the estimate for sand replacement costs assumed sufficient quantities of sand were available from the debris sand recovered from adjacent property (sifting of debris for compatible beach quality sand) and the scraping of low tide beach, as well as the placement and shaping of a protective berm. It was also noted in PW 12 that all debris project worksheets for shorefront communities include costs for the recovery of beach sand, sifting to separate debris, transport and placement on eligible shorefront sites. The volume of sand was determined by evaluating the beach profile during inspections and calculated at approximately 3.0 cubic yards per linear foot (CY/LF). Sand placement and berm shaping were estimated at 43,000 cubic yards at a unit cost of $2.90/CY for a total project cost of $124,700.
The Applicant retained Coastal Science and Engineering, LLC, (CSE) to perform the dune restoration project in January 2004. CSE estimated the amount of sand lost due to the hurricane at 164,000 cubic yards. Between the months of January and August, 2004, the Applicant made several requests to FEMA, through the Grantee, North Carolina Division of Emergency Management (NCDEM), and provided supporting data for modification of PW 12. Another field inspection of the coastal towns was performed by FEMA, NCDEM and local representatives between February 11 and February 13, 2004. A report of the inspection findings indicated that 70% of the shorefront homeowners had restored a protective berm in front of their properties utilizing sand scraped from the low tide beach. The inspection report also stated that the North Carolina Department of Transportation (NCDOT) had constructed an 1,800 LF berm adjacent to State Route 12, using approximately 30,000 CY of sand (source unknown). The Applicant asserts it was encouraged by the NCDEM and FEMA to continue its efforts to produce conclusive evidence to support modification of the PW to allow for an additional scope of work. On July 24, 2004, the Applicant submitted data from a cooperative USGS/NASA study that indicated the erosion losses were three times greater than the amount provided in PW 12. FEMA Region IV reviewed the submissions and concluded that the Applicants submission was insufficiently conclusive to warrant a modification to PW12. The Applicant was notified that the submission was rejected and advised of FEMAs appeal procedure via conference call with NCDEM and FEMA officials on August 6, 2004.
The Applicant appealed FEMAs determination by letter dated September 14, 2004. Additional data to support the appeal was submitted to NCDEM on October 1, 2004, to be forwarded to FEMA. The appeal requested an additional 121,000 cubic yards (164,000 cubic yards, less the 43,000 cubic yards allowed in PW 12) of sand estimated at $350,900 to restore the barrier dune to pre-disaster condition. The Applicant also requested the work be reclassified from Category B, emergency work, to Category G, permanent work and an extension of the deadline for completion to April 15, 2005, due to the sea turtle nesting season and the Division of Coastal Management moratorium on dune disturbing activity. The total amount of sand requested by the applicant is 164,000 cubic yards based on Light Detection and Ranging (LIDAR) analysis through data provided by the U.S. Army Corps of Engineers.
FEMA denied the appeal by letter dated November 1, 2004. The basis for the denial was that FEMA approved funding of PW 12 in the amount of $124,700 on November 6, 2003, and used that date to establish the 60-day period for appeal. FEMA stated that the appeal was not filed within 60-days after receipt of a notice of the action being appealed. The appeal was received by FEMA more than nine months after the determination and the Applicant had not demonstrated extenuating circumstances for the delay.
The second appeal was submitted by letter dated December 17, 2004. The NCDEM transmitted the second appeal letter and supporting documentation to FEMA by letter dated December 22, 2004. The second appeal requests an additional 121,000 cubic yards of sand estimated at $350,900 to restore the barrier dune. The Applicant also requested the work be reclassified from Category B, emergency work, to Category G, permanent work and an extension of the deadline for completion to April 15, 2005, due to the sea turtle nesting season and the Division of Coastal Management moratorium on dune disturbing activity. FEMA Region IV reviewed the appeal and determined that the issues were being analyzed by FEMA Regional Public Assistance staff and its Technical Assistance Contractor (TAC) from February through May, 2004. As such, FEMA Region IV recommends the appeal be reviewed on the basis its data and not its timeframe. Additionally, FEMA Region IV determined that the Applicant has demonstrated that the dune system contained more sand than was originally estimated and recommends partial approval of the appeal to increase the size of the emergency berm.
The first appeal was denied on the basis of the appeal not being filed within the 60-day time limit. However, the Applicant has demonstrated that ongoing communications were occurring among NCDEM and FEMA Regional staff during the spring and summer of 2004. The Applicant was notified of the final eligibility determination of PW 12 during a conference call with FEMA officials on August 6, 2004. This call established the actual date that the 60-day appeal period began. The Applicants first appeal was dated September 14, 2004; therefore it falls within the appropriate time period for appealing FEMAs decision. The Applicant submitted their second appeal within 60-days of notification of the first appeal denial.
The three issues presented in the second appeal are: a request for an additional 121,000 cubic yards (164,000 cubic yards, less the 43,000 cubic yards allowed in PW 12) of sand; reclassification from Category B, emergency work, to Category G, permanent work and an extension of the deadline for project completion to April 15, 2005, due to the sea turtle nesting season and the Division of Coastal Management moratorium on dune disturbing activity.
The volume of sand allowed in PW 12 was determined by beach profiles during the initial FEMA/State inspection and calculated at approximately 3.0 cubic yards per linear foot (CY/LF). Sand placement and berm shaping were estimated at 43,000 cubic yards at a unit cost of $2.90/CY for a total project cost of $124,700. The Applicant retained Coastal Science and Engineering, LLC (CSE) to perform the dune restoration project in January 2004. CSE obtained additional data and performed a technical analysis based on Light Detection and Ranging (LIDAR) through two aerial flights over the Town of Kitty Hawk, on September 16, 2003 and September 21, 2003 (two days before and three days after the passage of Hurricane Isabel, respectively). The LIDAR data was p Uilmington District. The raw data was imported into Global Information System (GIS) software to create a digital terrain model using 5-meter grid spacing. Using the aforementioned software, profiles were created, running from 0.0 feet to a point past the landward limit of the primary frontal dune. Comparison of the pre-incident verses the post incident profiles provides an accurate assessment of the sand losses sustained by the Town of Kitty Hawk as a result of Hurricane Isabel. FEMAs TAC has analyzed the LIDAR data report and determined that the accuracy of the LIDAR analysis exceeds the accuracy of the initial damage inspection of September 28, 2003. The Town of Kitty Hawk has accurately demonstrated that it sustained a net loss of approximately 164,463 cubic yards of sand as a result of Hurricane Isabel. This translates to an average loss of approximately 9 cubic yards per linear foot. The Applicant has stated its intent to restore the beach and dune system to conditions which existed just prior to Hurricane Isabel. Based on all available data, the Applicant has not demonstrated that the beach and dune system was engineered and, therefore, is not eligible for assistance to restore the dunes under Category G (permanent work) guidelines. While it has been demonstrated that the Applicant lost sand, in some areas exceeding 24 CY/LF, the towns beaches were evaluated under Category B guidelines which provide up to a 5-year level of protection, with maximum allowable volumes of 6 CY/LF, or that which existed prior to Hurricane Isabel (whichever is less). An evaluation of representative profiles throughout the shorefront limits of the Town of Kitty Hawk indicate that the average sand loss above the 5-year level of protection approximates 7.45 CY/LF. As the maximum allowable volume is 6 CY/LF, supplemental sand is eligible to create a protective sand berm with a unit volume of 6 CY/LF, minus the area previously reconstructed by the North Carolina Department of Transportation (NCDOT).
Communication with FEMA Region IV staff confirmed the recommendation of FEMA TAC and regional concurrence to grant additional sand volume to restore the emergency protective berms based on the following calculations:
Total Shoreline Area 17,987 LF
Less NCDOT Area -1,800 LF
Total Eligible Shoreline 16,187 LF
16,187 LF x 6 CY/LF = 97,122 CY of sand
Less Sand Authorized under PW 12 = -43,000 CY of sand
Supplemental Sand Needed = 54,122 CY of sand
54,122 CY x $2.90/CY = $156,954
The Applicants request for reclassification of the work from Category B, emergency work, to Category G permanent work is not eligible. To be considered for Category G, permanent work, the Applicant needed to provide documentation of an engineered beach/dune system as defined in 44 CFR §206.226(j). Such documentation could not be established, therefore, the project is properly categorized as emergency work in accordance with 44 CFR §206.225(a)(3)(ii), emergency protective measures, which eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
The Applicant also requested an extension of the deadline for completion due to the sea turtle nesting season and the Division of Coastal Management moratorium on dune disturbing activity. As provided in 44 CFR §206.204(c)(2)(ii), the Grantee may extend the completion deadline by an additional 6 months. The FEMA Regional Director may approve time extensions beyond the Grantees authority.
Based on a review of the information provided in the Applicants second appeal, it was determined that:
(1) The Applicant has provided supplemental information to partially support its claim for additional volume of sand to restore protective berms at the previously designated locations along the Towns oceanfront. Therefore, an additional 54,122 CY of sand at $2.90/CY for a total funding increase of $156,954 is eligible.
(2) The Applicants request for reclassification of the work from Category B, emergency work, to permanent work is not eligible. To be considered for Category G, permanent work, the Applicant needed to provide documentation of an engineered beach/dune system as defined in accordance with 44 CFR §206.226(j). Such documentation could not be established, therefore, the project is properly categorized as emergency work in accordance with 44 CFR §206.225(a)(3)(ii),
(3) The Applicant requested an extension of the deadline for project completion and provided justification for extenuating circumstances. Therefore, a time extension to April 15, 2005 is approved.
The Regional Director will prepare a Project Worksheet funding the associated scope of work. The Applicants appeal is partially granted.