Cortez Beach Facility Eligibility

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1791-DR
ApplicantTexas General Land Office
Appeal TypeSecond
PA ID#000-UV3BY-00
PW ID#02961
Date Signed2012-05-16T04:00:00

 

Citation:         FEMA-1791-DR-TX; Texas General Land Office, Cortez Beach Facility Eligibility,Project Worksheet (PW) 02961

Cross

Reference:     Facility Eligibility, Environmental Compliance

Summary:       From September 7 through October 2, 2008, storm surge and strong winds from Hurricane Ike caused significant damage along the Texas Gulf Coast.  FEMA prepared PW 02961 in the amount of $1,584,411 to replace 55,200 cubic yards of beach-quality sand that was washed away by Hurricane Ike from Bryan Beach and Cortez Beach, together commonly referred to as Quintana Beach.  Approval of the project was contingent on both FEMA and the United States Fish and Wildlife Service (USFWS) conducting appropriate reviews to ensure compliance with applicable Federal environmental laws and regulations.  On February 9, 2010, the USFWS completed its review under the Coastal Barrier Resources Act (CBRA) which determined that the proposed beach nourishment activity at Cortez Beach was within a Coastal Barrier Resources System (CBRS) did not qualify for an exception under the CBRA because it did not meet the three purposes of the Act.  Following this determination, FEMA made that portion of the project ineligible for assistance.  This resulted in a deduction of $673,100 from PW 02961, with a remaining balance of $911,311. 

The Applicant submitted a first appeal on April 28, 2010 stating that the Cortez Beach project qualified for Section 6 exemptions under the CBRA.  The Applicant argued that Cortez Beach was both a recreational project as well as a nesting environment for endangered species, and that the beach was used for shore stabilization, which would qualify it for an exception under the CBRA.  On September 14, 2010, the Regional Administrator denied the Applicant’s first appeal stating that, because the project did not meet the three purposes of the CBRA, any FEMA assistance for the proposed Cortez Beach activity would not be consistent with the exemption criteria. 

The Applicant submitted its second appeal on December 3, 2010 which was transmitted to FEMA on December 20, 2010.  The Applicant argues that the beach nourishment project complies with the purpose CBRA, and should therefore be eligible for FEMA funding.  The Applicant contends that the project would minimize the loss of life and save Federal funds by protecting a publically owned road that provides an essential link for residents to a broad network of roads and highways necessary for evacuations as well as access for first responders.  The Applicant also contends that shore stabilization projects would help protect endangered species that may nest in the area.  Based on a review of the second appeal and consultation with the USFWS, FEMA reaffirms that the Cortez Beach project is not consistent with the objectives of the CBRA, and therefore are not eligible for Federal assistance.  Specifically, FEMA finds that the Cortez Beach project would be a wasteful expenditure of Federal revenue, as two PWs for two different disasters occurring two years apart have been written for nourishment projects on Cortez Beach, indicating that FEMA would be involved in providing assistance for every coastal storm.  Further, FEMA finds that nourishment activities could indirectly cause damage to fish, wildlife, and other natural resources associated with the coastal barriers along the Gulf Coast by encouraging development in the area. 

Issue:              Is the proposed activity consistent with the purpose of the Coastal Barrier Resources Act and therefore eligible for an exemption under Section 6(a) of the Act?

Finding:          No. 

Rationale:       Title 44 of the Code of Federal Regulations §206.345(b), Exceptions; Title 44 of the Code of Federal Regulations §206.348, Consultation; Coastal Barrier Resources Act Sections 2(b) and Section 6(a).

Appeal Letter

May 16, 2012

W. Nim Kidd, CEM

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, Cortez Beach Facility Eligibility, FEMA-1791-DR-TX, Project Worksheet (PW) 02961

Dear Chief Kidd:

This is in response to a letter from your office dated December 20, 2010, 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 decision not to fund the Cortez Beach nourishment project and to reduce PW 02961 in the amount of $673,100.

Background

From September 7 through October 2, 2008, storm surge and strong winds from Hurricane Ike caused significant damage along the Texas Gulf Coast.  FEMA prepared PW 02961 in the amount of $1,584,411 to replace 55,200 cubic yards of beach-quality sand that was washed away by Hurricane Ike from Bryan Beach and Cortez Beach, together commonly referred to as Quintana Beach.  Approval of the project was contingent on both FEMA and the United States Fish and Wildlife Service (USFWS) conducting appropriate reviews to ensure compliance with applicable Federal environmental laws and regulations. 

The USFWS reviewed and commented on the proposed Bryan Beach and Cortez Beach nourishment projects’ compliance with the Coastal Barrier Resources Act (CBRA).  The CBRA restricts the use of Federal expenditures and financial assistance that has the effect of encouraging development of coastal barriers by establishing the Coastal Barrier Resources System (CBRS).  The CBRS designates areas of the coast that are undeveloped where, though communities can allow development, Federal assistance is limited to occasions where specific exceptions are met.  Under FEMA regulations, specifically Title 44 of the Code of Federal Regulations (44 CFR) §206.345(b), Exceptions, the actions taken must be consistent with the purposes of the CBRA in order for disaster assistance to be made eligible within the CBRS. 

On February 9, 2010, the USFWS completed its CBRA review and determined that the proposed beach nourishment activity for Bryan Beach was not within the CBRS and therefore, there were no limitations on Federal expenditures.  However, the USFWS review found that Cortez Beach and the proposed beach nourishment activity was located within a CBRS and concluded that the proposed Cortez Beach project did not meet the three purposes specified in Section 2(b) of the CBRA to minimize the loss of human life, wasteful expenditures of Federal revenues, and damage to fish, wildlife, and other natural resources.  Upon finding that Cortez Beach was located in the CBRS, FEMA made that portion of the project ineligible for assistance.  This resulted in a deduction of $673,100 from PW 02961, leaving a remaining balance of $911,311.  It is important to note that FEMA assistance was previously provided for Cortez Beach following Hurricane Rita (FEMA-DR-1606-TX) under PW 1012.  In this case, the USFWS found the dune restoration and beach nourishment activities undertaken consistent with the purpose of the CBRA.

First Appeal

The Applicant submitted a first appeal on April 28, 2010 stating that the Cortez Beach project qualified for Section 6 exemptions under the CBRA.  First, the Applicant argued that Cortez Beach was both a recreational project as well as a nesting environment for endangered turtles, and therefore qualified for an exception under Section 6(a)(6)(A).  Second, the Applicant argued that the beach qualified as a publicly owned facility, which would qualify the project for an exception under Section 6(a)(6)(F).  Finally, the Applicant argued that the beach was a nonstructural project and used for shore stabilization, which would qualify it for an exception under Section 6(a)(6)(G).  On September 14, 2010, the Regional Administrator denied the Applicant’s first appeal pursuant to 44 CFR §206.345(b), Exceptions, stating that based on the USFWS February 9, 2010 review which determined the project did not meet the three purposes of the CBRA, any FEMA assistance with the proposed Cortez Beach activity would not be consistent with the exemption criteria.   

Second Appeal

The Applicant submitted its second appeal on December 3, 2010 which was transmitted by the State of Texas Division of Emergency Management to FEMA on December 20, 2010.  The Applicant states that, although Cortez Beach is within the CBRS, the beach nourishment project complies with the purpose of CBRA, and should therefore be eligible for FEMA funding.  The Applicant contends that the project would minimize the loss of life by protecting County Road 723, a publically owned road that provides an essential link for residents to a broad network of roads and highways that are necessary for evacuations as well as access for first responders.  The Applicant also contends that the beach nourishment project would not be a wasteful use of Federal funds because it would help protect County Road 723 from erosion, in addition to protecting and encouraging the habitation of endangered species.  Finally, the Applicant contends that shore stabilization projects would not further harm endangered species, such as the Piping Plover and Kemp’s Ridley Sea Turtle, and provided evidence regarding efforts to protect these species during beach nourishment activities.

Discussion

FEMA reviewed the Applicant’s second appeal and consulted with the USFWS pursuant to 44 CFR §206.348, Consultation.  Based on this review and consultation with USFWS, FEMA reaffirms that the Cortez Beach project is not consistent with the objectives of the CBRA, and therefore are not eligible for Federal assistance.  FEMA acknowledges that beach nourishment actions could qualify for an exception under CBRA Section 6(a)(6)(G) and 44 CFR §206.345(b)(6) as non-structural projects for shoreline stabilization designed to restore natural stabilization systems, provided they are found consistent with the purposes of CBRA.  In this case, FEMA finds that the Cortez Beach project it is not consistent with the purposes of CBRA.  Specifically, FEMA finds that the Cortez Beach project would be a wasteful expenditure of Federal revenue and could indirectly cause damage to fish, wildlife, and other natural resources associated with the coastal barriers along the Gulf Coast.

Specifically regarding the expenditure of Federal revenue, FEMA finds that two PWs for two different disasters occurring two years apart have been written for nourishment activities at Cortez Beach.  These include PW 1012 under FEMA-1606-DR-TX and the PW associated with this appeal.  This provides an indication that FEMA would be involved in providing assistance for the same nourishment activities at the same beach for every coastal storm, therefore rendering nourishment activities at Cortez Beach a wasteful Federal expenditure.  It is also possible that natural processes for this beach would result in the placement of sand without the need for the expenditure of Federal dollars.

Specifically regarding damage to wildlife and natural resources, FEMA finds that the project would indirectly cause damage to fish, wildlife, and other natural resources by encouraging development in the area.  Evidence of development in the area is apparent in the photographs that are part of the case file.  By providing Federal funds to nourish the beach, FEMA would be encouraging a false sense of security for individuals that live or would want to live in these areas.  Although placing uncontaminated sand that has the same grain size and color may provide some benefit for sea turtles, the adverse effects of encouraging further human occupation and development in this site outweighs the marginal benefit provided to the species.  The benefit of anthropogenic sand placement to the species in this case is marginal because it is likely that natural processes would achieve the same result, benefiting the species without need for the expenditure of Federal dollars without the need for the expenditure of Federal dollars.

Conclusion

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.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:   Tony Robinson

       Acting Regional Administrator

       FEMA Region VI

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