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Second Appeal Brief
PA ID# 000-UV3BY-00; Texas General Land Office
PW ID# 02961; Cortez Beach Facility Eligibility
Citation: FEMA-1791-DR-TX; Texas General Land Office, Cortez Beach Facility Eligibility,Project Worksheet (PW) 02961
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?
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).