Timbalier Island Sand Fencing

Appeal Brief Appeal Letter

Appeal Brief

Disaster1607-DR-LA
ApplicantLouisiana Department of Natural Resources
Appeal TypeSecond
PA ID#000-UCPOY-00
PW ID#4576
Date Signed2012-03-12T04:00:00

Citation:         FEMA-1607-DR-LA, Louisiana Department of Natural Resources, Timbalier Island Sand Fencing, Project Worksheet 4576

Cross

Reference:    Other Federal Agencies

Summary:      PW 4576 was prepared to remove and replace 4,500 linear feet (LF) of sand fencing in the amount of $55,876.  On September 28, 2009, FEMA obligated PW 4576 for zero dollars because FEMA determined the repairs were under the specific authority of the Environmental Protection Agency (EPA) and pursuant to Title 44 Code of Federal Regulations (44 CFR) §206.226(a) General work eligibility. General, not eligible for finding under the Public Assistance (PA) program.

                        In its first appeal the Applicant argued that EPA does not have specific authority for the repair of the sand fencing and provided a letter from the EPA dated August 5, 2009 stating that EPA does not have any specific authority to repair damages caused by Hurricanes Gustav, Ike and Rita.  The letter confirms that the EPA does not have any specific authority to repair these damages

                        The Regional Administrator denied the first appeal because the Cooperative Agreement stated that long term operations and maintenance (O &M) of the project and funding would be through a Memoranda of Agreement (MOA).  Furthermore the agencies that are parties to the MOA were responsible for the long term monitoring, maintenance, repair and rehabilitation of authorized project features.  The decision also noted that the project completion report submitted in the first appeal established that the repairs have been funded by other federal agencies in the past.

Issue:              Is another Federal Agency responsible for funding the repair of the sand fence?

Finding:           No.

Rationale:       44 CFR § 206.226(a) General work eligibility. General; 44 CFR § 206.206 Appeals.

Appeal Letter

March 12, 2012

Kevin Davis

Director

Governor’s Office of Homeland Security and Emergency Preparedness

State of Louisiana

7667 Independence Boulevard

Baton Rouge, LA 70806

Re:  Second Appeal–Louisiana Department of Natural Resources, PA ID 000-UCPOY-00, Timbalier Island Sand Fencing, FEMA-1607-DR-LA, Project Worksheet (PW) 4576

Dear Mr. Davis:

This is in response to a letter from your office dated August 19, 2010, transmitting the referenced second appeal on behalf of the Louisiana Department of Natural Resources (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $55,876 to replace sand fencing on Timbalier Island.

Background

In 2005, storm surge and high winds from Hurricane Rita caused significant damage to sand fencing on Timbalier Island.  Timbalier Island is a project funded under the Coastal Wetlands Planning and Restoration Act (CWPRA).  CWPRA established a coordinated effort among Federal and State agencies to construct and maintain coastal restoration projects throughout coastal Louisiana. 

FEMA prepared Project Worksheet (PW) 4576 to remove and replace 4,500 linear feet (LF) of sand fencing in the amount of $55,876.  On September 28, 2009, FEMA de-obligated PW 4576 based on a determination that the repairs were under the specific authority of the Environmental Protection Agency (EPA).  Pursuant to FEMA regulations at 44 Code of Federal Regulations (CFR) §206.226(a) Assistance under other Federal agency (OFA) programs, “Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”

First Appeal

In its first appeal, the Applicant provided a letter from EPA dated August 5, 2009, stating that EPA does not have any specific authority to repair the damage.  The Regional Administrator denied the first appeal because the Memorandum of Agreement between EPA, the U.S. Army Corps of Engineers (USACE), and the Applicant, provides that the parties to the Memorandum of Agreement (MOA) are responsible for the long-term monitoring, maintenance, repair and rehabilitation of authorized project features. 

Second Appeal

The Applicant submitted its second appeal on June 16, 2010, reiterating its request for funding for the repair of the sand fencing on Timbalier Island.  The Applicant argued that neither EPA nor USACE has specific authority for the repairs. 

Discussion

The Cooperative Agreement dated June 14, 2000, between EPA and the Applicant, which provides a scope of services for the implementation of the CWPRA project, describes the long-term operations and maintenance for the project and states that funding will be through an MOA between EPA, USACE, and the Applicant.  FEMA has reviewed the Cooperative Agreement and the MOA and has determined the repair of the damaged sand fencing  does not fall under the specific authority or responsibility of another Federal agency.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Applicant’s appeal should be granted in full.  By this letter, I am requesting that the Regional Administrator take appropriate action to implement my decision.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth A. Zimmerman

Deputy Associate Administrator

Office of Response and Recovery

cc:  Tony Russell

Regional Administrator

FEMA Region VI

Last updated