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Second Appeal Letter
PA ID# 000-U04DA-00; State of Louisiana Military Department
PW ID# 17699; Jackson Barracks
August 13, 2009
Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governors Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806
Re: Second AppealState of Louisiana Military Department, PA ID 000-U04DA-00, Jackson Barracks
, FEMA-1603-DR-LA, Project Worksheet (PW) 17699
Dear Colonel Kirkpatrick:
This is in response to your letter dated January 24, 2009, which transmitted the referenced second appeal on behalf of the State of Louisiana Military Department (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of $52,012 in funding for demobilization costs.
Hurricane Katrina made landfall on August 29, 2005, resulting in heavey flooding that damaged Jackson Barracks. On November 28, 2006, FEMA prepared PW 15065 for $1,023,402 to repair the facilitys electrical infrastructure. Repairs for damages to Jackson Barracks utilities were also funded with Military Construction (MilCon) funding provided by the U.S. Department of Defense. FEMA determined that the MilCon-funded underground utility installation would be connected to historic structures whose repairs were to be funded in part by FEMA. Because the Applicants project would be funded in part by FEMA, FEMA conducted an environmental protection and historic preservation review to comply with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). FEMA was also required to comply with Executive Order (EO) 13175, Consultation and Coordination with Indian Tribal Governments. This review included project sites funded by both MilCon and FEMA.
On February 5, 2007, seven days before work was scheduled to begin, FEMA advised the Applicant that ground-disturbing activity in areas A through E of Jackson Barracks was unauthorized until an environmental protection and historical preservation review had been completed. Upon receipt of this letter, the Applicant halted its operations in these areas. However, the Applicants contractor, Cajun Construction, had already mobilized its drilling subcontractor, U.S. Underground. FEMA notified the Applicant on March 10, 2007, that ground-disturbing activities could proceed in areas B through E. Work in areas A1 and A2 was not authorized, because area A1 is listed on the National Register of Historic Places and area A2 is located on Native American burial grounds. Cajun Construction subsequently billed the Applicant for $52,012 for its demobilization costs, costs associated with cancelling a contract with a subcontractor, site maintenance during the 23-day review period, and remobilization costs. FEMA determined that these costs, captured on PW 17699, are not eligible.
The Applicant submitted its first appeal on May 19, 2008. The Applicant argued that the costs incurred by the delay are the result of FEMAs interference in the projects progress. The Regional Administrator determined that these costs are ineligible because they are related to underground utility work that was funded by a source other than FEMA and denied the Applicants appeal on July 25, 2008.
The Applicant submitted its second appeal on November 20, 2008, and the State of Louisianas Governors Office of Homeland Security and Emergency Preparedness (GOHSEP) transmitted it to FEMA on January 24, 2009. The Applicant made an oral presentation to FEMAs Acting Deputy Assistant Administrator of the Disaster Assistance Directorate on June 26, 2009. GOHSEPs transmittal letter questioned FEMAs authority to halt the Applicants MilCon-funded operations. GOHSEP stated that NEPA, NHPA, and EO 13175 do not provide a basis for FEMA to directly interfere with and halt the Applicants state-funded project. According to GOHSEP, FEMA only had authority to suggest that a continuation of work might disrupt federal funding if the States project resulted in a direct historical or environmental impairment of the federal project.
FEMA is responsible for ensuring that projects funded under Section 406 of the Stafford Act comply with the requirements of all applicable Federal environmental and historical preservation statutes and regulations. FEMA restricted groundwork in areas A through E to ensure that the Applicant did not jeopardize its Federal funding by failing to comply with these statutes and regulations. Upon completion of its review, FEMA determined that the Applicant could proceed with work in areas B through E without adversely affecting the environment or disturbing historical properties. The Applicant incurred delay costs during the review period. However, these costs are not connected to an eligible FEMA project to restore or repair damage to an eligible facility. The Applicants demobilization costs are not eligible for reimbursement under the Public Assistance (PA) Program because they are related to underground utility work that was funded by a source other than FEMA. FEMA does not have the statutory authority to reimburse these expenses.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrators decision in the first appeal is consistent with PA regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
FEMA Region VI
LA Transitional Recovery Office