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Second Appeal Letter
PA ID# 000-U04A1-00; Louisiana Department of Transportation and Development
PW ID# Project Worksheets 4365 and 4367; Debris Removal
December 17, 2008
Colonel Thomas Kirkpatrick (Retired)
State Coordinating Officer
Governor’s Office of Homeland Security
and Emergency Preparedness
415 North 15th Street
Baton Rouge, LA 70802
Re: Second Appeal–Louisiana Department of Transportation and Development, PA ID 000-U04A1-00, Debris Removal, FEMA-1607-DR-LA, Project Worksheets (PWs) 4365 and 4367
Dear Colonel Kirkpatrick:
This is in response to your letter dated July 17, 2008, which transmitted the referenced second appeal on behalf of the Louisiana Department of Transportation and Development (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for the removal of trees damaged by beetle infestation as a result of high winds associated with Hurricane Katrina. The Applicant seeks reimbursement totaling $381,615.
In a letter to FEMA dated September 6, 2006, the State of Louisiana’s Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) requested an eligibility determination for funding to remove dead, standing trees killed as a result of beetle infestation. GOHSEP identified these trees as being located in multiple parishes of Louisiana on the North Shores of Lake Pontchartrain. The letter stated that because the trees were located on State highways, parish and municipal streets, and on private property, they posed an immediate threat to pedestrian and vehicle traffic, were a potential disruption to essential utility service in the affected areas, and could pose significant damage to improved residential and commercial structures.
FEMA responded to GOHSEP in a letter dated November 6, 2006, and informed GOHSEP that funding to remove trees damaged from beetle infestation was not eligible under
44 CFR §206.223(a)(1). FEMA further stated that trees weakened or killed by beetle or other insect infestation are not considered to be debris resulting from the disaster. The letter also denied funding under Category B, Emergency Protective Measures (44 CFR §206.225) because the affected trees are located in forested areas along major highways, and the unstable condition of the damaged trees does not rise to the level of an immediate threat to life, public health, safety, or improved property.
On January 4, 2007, FEMA prepared PWs 4365 ($253,380) and 4367 ($128,235) to cover debris removal costs. FEMA determined that tree damage resulting from beetle infestation was not disaster-related and was ineligible for Public Assistance. Therefore, FEMA did not fund the projects.
On November 15, 2007, the Applicant submitted a first appeal letter to GOHSEP, eight months beyond the timeframe established in 44 CFR §206.206. GOHSEP transmitted the appeal to FEMA on January 17, 2008. GOHSEP forwarded a supplement to the original appeal to FEMA in letter dated March 10, 2008. The Applicant stated that hurricane damage resulted in the eventual death of trees along State rights-of-way and highways, which posed an immediate threat to lives, public health, safety, and improved property. The Applicant’s appeal did not attribute beetle infestation as a factor in the death of the trees. GOHSEP supported the Applicant and argued in its analysis that the dead and weakened trees promoted beetle infestation and that several post-Katrina vehicle accidents along State highways were attributed to the weakened and dead falling trees. Support documents included a July 2006 post-Hurricane Katrina field report on insect and disease infestation of storm damaged timber in Mississippi’s De Soto National Forest; various forest insect and tree disease studies; a De Soto National Forest tree damage map; and a letter from the State of Louisiana’s Office of Risk Management stating that 43 claims were filed by individuals claiming property damage or injuries from tree-related accidents occurring on State highways on or after August 29, 2005.
On April 2, 2008, the Regional Administrator denied the first appeal because damage to trees caused by beetle or other insect infestation is not considered disaster-related and not eligible for funding. FEMA determined that the Applicant did not make claims or provide any documentation to show that the trees sustained eligible damage caused by the disaster and that the Applicant’s arguments rest solely on the fact that the trees were damaged by beetle infestation.
A second appeal was submitted by the Applicant to GOHSEP on May 13, 2008. The Applicant requests that FEMA reconsider its denial of assistance for reimbursement of costs to remove dead trees that were killed as a result of beetle infestation located along identified State routes and highways. The Applicant reiterates the same position it claims in the first appeal and provides no additional support documentation.
FEMA has determined that the disaster did not directly damage trees that are located on certain State routes and highways. 44 CFR §206.223 requires that an eligible item of work must be the direct result of the disaster. Rather, the primary cause of the dead trees appears to be beetle infestation. Also, the beetle infected trees are located in forested areas along State highways, and the unstable condition of the damaged trees does not rise to the level of an immediate threat to life, public health, safety, or improved property (44 CFR §206.225). In addition, the Applicant did not submit the appeal within the regulatory 60-day timeframe pursuant to 44 CFR §206.206.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: William Peterson