Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1604-DR
ApplicantCity of Hattiesburg
Appeal TypeSecond
PA ID#035-31020-00
PW ID#xxxx
Date Signed2008-10-14T04:00:00
Citation: FEMA-1604-DR-MS, City of Hattiesburg, Debris Removal

Cross-reference: Debris Removal

Summary: FEMA approved funding for the removal of trees on public and private property that were damaged or killed by saltwater intrusion in Hancock, Harrison, and Jackson Counties because they posed an immediate threat to life, public health, and safety. On February 15, 2007, FEMA denied a request for assistance for the removal of trees in several other counties, including Forrest County and the City of Hattiesburg, because the Applicant did not demonstrate that the disaster directly damaged the trees and it did not demonstrate that the trees posed an immediate threat to life, public health and safety. The Applicant submitted its first appeal to the Mississippi Emergency Management Agency (MEMA) on May 16, 2007, one month beyond the appeal deadline as required by 44 CFR §206.206(c)(1). MEMA forwarded the appeal to FEMA on August 28, 2007, over two months past its deadline. FEMA denied the first appeal on November 27, 2007, because the Applicant did not submit it in timely manner and it lacked sufficient justification for an extension of time for debris removal and emergency protective measures over two years after the declared event. In its second appeal, the Applicant is requesting approximately $375,000—the estimated cost to remove 1,316 trees. The Applicant had not removed the trees at the time it submitted its second appeal.

Issues: Has the Applicant demonstrated that Hurricane Katrina directly damaged or killed trees located outside the saltwater surge zone?
Findings: No.

Rationale: 44 CFR §206.224(a)

Appeal Letter

October 14, 2008

Mr. Thomas M. “Mike” Womack
Governor’s Authorized Representative
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, MS 39208

Re: Second Appeal–City of Hattiesburg, PA ID 035-31020-00, Debris Removal,
FEMA-1604-DR-MS

Dear Mr. Womack:

This is in response to your letter dated April 2, 2008, transmitting the referenced second appeal on behalf of the City of Hattiesburg (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of eligibility for the removal of standing dead trees on public and private property.
On March 15, 2006, FEMA approved funding for the removal of dead or dying pine trees that were damaged by saltwater intrusion in Hancock, Harrison, and Jackson, Mississippi. FEMA agreed with county official that these trees, described as “standing dead trees,” presented immediate threats to lives, homes, and other improved property. On January 4, 2007, the Mississippi Emergency Management Agency (MEMA) requested that FEMA extend eligibility for the removal of standing dead trees from public and private property to seven additional counties, including Forrest County. On February 15, 2007, FEMA denied the request to fund the removal of standing dead trees from Forrest County and the City of Hattiesburg.
The Applicant submitted another request for FEMA assistance to remove standing dead trees in a letter to MEMA dated May 16, 2007. MEMA forwarded this request as a first appeal on August 28, 2007. The Applicant submitted a copy of a single-page document entitled, “Standing Dead Tree Assessment,” which summarized the Applicant’s efforts to identify standing dead trees. The report identified an actual tree count of 118, and a projected tree count of 1,316, ninety four percent of which were located on private property.
The Regional Administrator denied the first appeal in a letter to MEMA on November 27, 2007, because the Applicant did not submit the appeal within the regulatory timeframe. Additionally, the Applicant’s appeal did not contain sufficient documentation to demonstrate the existence of an immediate threat to life, public health and safety, or improved property. The Applicant submitted the appeal approximately one month beyond the timeframe established in 44 CFR §206.206(c)(1). MEMA transmitted the appeal to FEMA over two months after the regulatory timeframe. MEMA’s letter did not contain a written recommendation as required by 44 CFR §206.206(c)(2).
The Applicant submitted a second appeal to MEMA on February 11, 2008. The Applicant requests that FEMA reconsider its denial of assistance and asserts that the standing dead trees threaten public health and safety during rain events with high winds. The Applicant resubmitted its Standing Dead Tree Assessment report, wherein it estimates the costs to remove these trees to be approximately $375,000. The Applicant also asserts that the same threats to public health and safety exist in the City of Hattiesburg as in other jurisdictions where FEMA approved assistance for the removal of standing dead trees.

44 CFR §206.223 requires that an eligible item of work must be the direct result of the disaster. FEMA approved funding for the removal of standing dead trees in the coastal counties because it determined that the saltwater surge from Hurricane Katrina directly damaged or killed the trees. FEMA has determined that the disaster did not directly damage trees that are located outside the surge zone. Rather, the primary cause of the dead trees appears to be beetle infestation. Because Hurricane Katrina did not directly damage the trees, the removal of the trees is not eligible for funding under the Public Assistance Program. In addition, the Applicant did not submit the appeal within the regulatory timeframe contained in 44 CFR §206.206. For these reasons, I am denying the appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major P. May
Regional Administrator
FEMA Region IV
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