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Second Appeal Analysis
PA ID# 045-00E4A-00; Bay St. Louis School District
PW ID# 11157; Tree Replacement
On August 29, 2006, heavy rain and wind from Hurricane Katrina damaged the Bay St. Louis School District’s Upper Elementary School campus, including North Bay Elementary and Bay-Waveland Upper Elementary schools. FEMA obligated Project Worksheet (PW) 11157 to address relocation of the campus for $3,536,331. At closeout, the Applicant submitted additional costs of $146,021, of which $115,814 was approved. The remaining $30,207 represented denied costs related to a sod allowance of $6,000; landscaping trees for $21,900; and two desiccant dryers and two compressors for $2,307.
The Applicant submitted its first appeal in a letter dated July 24, 2012, requesting $27,900 for sod and tree replacement because the landscaping was required by city zoning ordinance. The ordinance required the replacement of several preexisting trees lost during construction with trees that had comparable characteristics (one and one-half inch caliper nursery stock, a minimum of seven feet in height, and that rendered a cumulative caliper diameter of 168 inches). The Grantee transmitted the first appeal to FEMA Region IV in a letter dated September 4, 2012, recommending that FEMA reconsider its earlier determination. The FEMA Region IV Regional Administrator (RA) found that the sod was placed for erosion control and issued a partial approval of $6,000 on May 25, 2013. The RA denied the rest of the appeal, determining that the costs of landscaping trees are not eligible under the Public Assistance program. The RA rejected the Applicant’s reliance on a city zoning ordinance stating that the ordinance regulated trees which are not eligible under the Public Assistance program.
In a letter dated July 23, 2013, the Applicant submitted its second appeal to the Grantee for planting landscaping trees for $21,900. The Applicant again claims that the tree replacement should be eligible because it was required by a city ordinance. The Grantee transmitted the Applicant’s second appeal to FEMA Region IV on August 12, 2013, supporting the appeal and citing the application of codes and standards as a possible exception to FEMA’s exclusion of trees under the Public Assistance program.
When a facility is repaired or replaced, FEMA may pay for upgrades that are necessary to meet specific requirements of current codes and standards. In order to be applicable to the work on PW 11157, the ordinance requiring the upgrade must have been formally adopted in writing and implemented prior to the disaster declaration date. The city zoning ordinance referenced by the Applicant was adopted on September 7, 2010, well after the 2006 disaster. Neither the Applicant nor the ordinance indicates a previous ordinance was in effect at the time of the disaster.
Regardless, the FEMA Response and Recovery Directorate Policy Number 9524.5, Trees, Shrubs, and Other Plantings Associated with Facilities, (Sept. 24, 1998), in effect at the time of the disaster, provides that “Trees, shrubs, and other plantings, except grass and sod, will no longer be eligible under Section 406 of Public Law 93-288, as amended (Repair, Restoration, and Replacement of Damaged Facilities).” This policy applies to “any measure taken with respect to trees, shrubs, and other plantings, except grass and sod - including but not limited to replacement, non-emergency removal for purposes of replacement, and remedial actions taken to abate disaster damage.”  This prohibition, which does not allow for exceptions, “applies to trees and shrubs in recreational areas, such as parks, as well as trees and shrubs associated with public facilities, such as those located in the median strips along roadways and as landscaping for public buildings.”
The Applicant maintains that the trees were erroneously labeled as “landscaping,” which is not eligible under the Public Assistance program. The Applicant instead uses the term “mitigating trees.” As reflected above, FEMA Response and Recovery Directorate Policy Number 9524.5, Trees, Shrubs, and Other Plantings Associated with Facilities, does not provide for any exceptions. Regardless, even if that prohibition did not exist, usage of the term “mitigating” would not be sufficient to qualify under the Public Assistance program because “mitigation measures must be related to eligible disaster-related damages and must directly reduce the potential of future, similar disaster damages to the eligible facility.” Because the replacement of trees does not directly reduce the potential of future, similar disaster damages, it does not qualify as mitigation under the Public Assistance program.
The Grantee’s second appeal letter states that the trees should be included as part of the facility’s relocation costs and outlines the policy and requirements for relocation under the Public Assistance program. The Grantee also claims that the trees served as soil conservation, erosion control, and to combat sediment runoff. Nevertheless, as discussed above, planting trees is ineligible work under the Public Assistance program. This exclusion applies regardless of whether a facility is repaired, replaced, or relocated.
Tree replacement is not eligible under the Public Assistance program. Even if an exception could be provided based on the posed ordinance or mitigation arguments, the appeal would still be denied as the cited ordinance was not in effect at the time of the disaster and the replacement of the trees do not meet the requirements to be considered as mitigation.
 See City of Bay St. Louis, Miss., Zoning Ordinance, § 1011 (2010).
 FEMA Public Assistance Guide 322, (Oct. 1999) at 27.
 FEMA Response and Recovery Directorate Policy Number 9524.5, Trees, Shrubs, and Other Plantings Associated with Facilities at 3 (Sept. 24, 1998).
 FEMA Public Assistance Guide 322, (Oct. 1999) at 60.
 FEMA Response and Recovery Directorate Policy Number 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act), (Aug. 13, 1998).
 FEMA Response and Recovery Directorate Policy Number 9524.5, Trees, Shrubs, and Other Plantings Associated with Facilities, section 6, (Sept. 24, 1998).