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Second Appeal Letter
PA ID# 000-UV3BY-00; Texas General Land Office
PW ID# 10922; McFaddin Beach and Dune System
January 17, 2012
W. Nim Kidd
Assistant Director, Texas Department of Public Safety
Chief, Texas Division of Emergency Management
P.O. Box 4087
Austin, TX 78773-0220
Re: Second Appeal–Texas General Land Office, PA ID 000-UV3BY-00, McFaddin Beach and Dune System Restoration, FEMA-1791-DR-TX, Project Worksheet (PW) 10922
Dear Chief Kidd:
This is in response to a letter from your office dated March 3, 2011, which transmitted the referenced second appeal on behalf of the Texas General Land Office (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $2,026,653 for the restoration of McFaddin Beach and Dunes.
In 2008, Hurricane Ike caused significant damage along the Texas Gulf Coast. The Applicant requested funding for the replacement of 65,000 cubic yards (CY) of sand that it claimed was lost from McFaddin Beach and Dune areas as result of winds and storm surge related to Hurricane Ike. FEMA denied this request because the Applicant was unable to furnish as-built plans, documentation of a periodic re-nourishment maintenance program, or records of past re-nourishments.
On May 28, 2010, the Applicant submitted its first appeal and provided as-built plans and Light Detection and Ranging (LIDAR) images of the area from 2001 through 2008. These LIDAR images demonstrate that following initial construction in 2001, there was minor sand loss following Hurricane Rita in 2005 and significant sand loss following Hurricane Ike in 2008. On August 4, 2010, FEMA requested that the Applicant provide records of past nourishments of McFaddin Beach and Dunes. The Applicant amended its first appeal on September 15, 2010, and withdrew the McFaddin Beach portion of the area from its appeal. According to the Applicant, it had not maintained the beach area. The Applicant maintained that the Dune had not required maintenance prior to Hurricane Ike. FEMA denied the Applicant’s appeal on October 26, 2010.
The Applicant submitted its second appeal on January 7, 2011. The Applicant maintains that the entire beach should be eligible because it satisfies the criteria established in Title 44 Code of Federal Regulations (44 CFR) §206.226(j)(2), Improved beaches. Pursuant to 44 CFR §206.226, an improved beach must have been constructed by the placement of sand of proper grain size to a designed elevation, width, and slope; and a maintenance program involving periodic re-nourishment must have been established and adhered to by the applicant. The Applicant submitted a copy of its June 30, 2010, Beach Monitoring and Maintenance Plan in support of its claim. The Applicant also argued that FEMA should review the McFaddin Beach and Dune areas as two distinct projects. The Applicant completed its McFaddin Dune Restoration Project in 2001, and its McFaddin Beach Nourishment project was completed in 2002. The Applicant noted that these projects were permitted separately by the U.S. Army Corps of Engineers (USACE). The Applicant stated that USACE permits allow for maintenance of the various permitted design features of improved beaches to be performed either on a stand-alone or system basis. The Applicant believes that FEMA should allow the same flexibility. Whether evaluated together or separately, the Applicant believes that sand replacement along the McFaddin Beach and Dune area should be eligible.
The Applicant’s maintenance program was established on June 30, 2010, nearly two years after the declared event. Prior to the event, the Applicant has acknowledged that it chose to “lower the priority of some of the routine maintenance” to respond to other circumstances. While FEMA may evaluate the beach and the dune as distinct facilities, it is evident that the Applicant did not maintain either prior to Hurricane Ike. As noted above, in accordance with FEMA regulations, applicants must have an established and adhered to maintenance program for its improved beaches in order for sand replacement to be eligible for Public Assistance funding.
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 this appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
cc: Tony Russell
FEMA Region VI