Debris Removal from Waterways

Conclusion:  On second appeal, the Applicant has shown that the Empire and Buras Boat Harbors are eligible, improved and maintained natural features.  As such, the removal of sediment and debris deposited by Hurricane Katrina from the harbors is eligible for funding, based on the pre-disaster navigational draft depth levels.

Background

In 2005, during Hurricane Katrina, a tidal surge of up to 20 feet with accompanying silt, mud, and debris inundated four boat harbors in Plaquemines Parish (Applicant), including the Empire Boat Harbor and Marina and the Buras Boat Harbor.  In June 2008, FEMA prepared Category A Project Worksheets (PW) 18142 and 18143 to remove disaster related silt and debris from the harbors.  FEMA found both PWs to be ineligible because silt deposits in navigable waterways did not pose an immediate threat to public health and safety.  The Applicant appealed this determination requesting FEMA approval of $700,000 and $1,000,000 for the removal of an estimated 21,000 cubic yards (CY) and 60,000 CY of silt deposited as the result of Hurricane Katrina to restore the pre-disaster function and capacity of the Empire Boat Harbor and Marina and the Buras Boat Harbor, respectively.[1]  The Applicant submitted a post-disaster Hydrographic and Topographic survey (Survey), dated March 31, 2008, completed by its consultant, which established the estimated quantity of sediment to be removed.  However, the Applicant provided no maintenance records or documentation demonstrating the pre-disaster capacity of its harbors. 

The FEMA Region VI Acting Regional Administrator (RA) granted the appeal on March 18, 2009, approving the sediment removal as permanent work “contingent upon the applicant’s ability to produce maintenance records and surveys to demonstrate the pre-disaster capacity of its harbors and supporting the estimate of eligible sediment to be removed.[2]”   In late 2009, FEMA prepared Category G PWs 18811 and 18826 for the removal of sediment from the Empire Boat Harbor and Buras Boat Harbor, respectively, and held them pending the Applicant’s submission of additional documentation.  The Applicant submitted budget documents to support it actively maintained the harbors.  FEMA determined that documentation to be insufficient, and in June 2011, found PWs 18811 and 18826 to be ineligible, because the Applicant did not provide documentation demonstrating the “pre-disaster level of sedimentation or provide a history of previous sediment removal as required” by the first appeal response of PWs 18142 and 18143.[3]   

First Appeal

The Applicant submitted a first appeal of both PWs to the Grantee on November 22, 2011 and reiterated that the records supplied to FEMA demonstrated that the harbors are eligible for FEMA funding.  Those records included photographs, construction records, financial records, and budgets.  In addition, the Applicant asserted that the Survey establishes that Hurricane Katrina caused the silt build-up in each of the harbors as well as the pre-disaster level of silt build-up.  Further, the Applicant explained that they did not have maintenance records for dredging because the harbors were designed to avoid silt build-up and the depth of the waterway was maintained through the “prop wash” of transiting vessels. 

In a letter, dated March 19, 2013, the FEMA Region VI RA denied the appeals because the Applicant did not produce the pre-disaster records and surveys that FEMA required in response to the first appeals of PWs 18142 and 18143 and found that the Applicant’s assertion that the harbors were designed to be maintenance-free was not supported by any corresponding technical design criteria or specifications.  In addition, the RA stated that “operating budget expenditures submitted by the applicant for routine, day-to-day operations of the harbors… does not support prior maintenance of the natural feature.”  Therefore, the Applicant could not conclusively establish any disaster-related sediment.  Consequently, the RA determined that sediment removal from the Applicant’s harbors was not eligible for Public Assistance funding.

Second Appeal

The Applicant submitted a second appeal for each PW on June 5, 2013, which the Grantee transmitted to FEMA on August 9, 2013.  In the second appeal, the Applicant requests reimbursement of the cost required to remove Hurricane Katrina storm-generated silt and sediment, reasserting that it is permanent work that will restore the harbors’ pre-disaster capacities and is, thus, an eligible cost.  The Applicant claims that the harbors were actively maintained.  In addition, the harbor bottoms did not require regular dredging to maintain the functional depth because it designed the harbors to not permit Mississippi River water tidal flow, which is the typical cause of silt build-up.  Prior to Hurricane Katrina, the harbors had never “silted up” to the point of needing dredging and its depth was maintained through “prop wash.”  Finally, the Applicant asserts that the March 2008 Survey is a reliable source to determine and establish the amount of sediment deposited as the result of the disaster.    

Discussion

Facility Eligibility

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) Section 406(a)(1) authorizes FEMA to make contributions to a local government  to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster. [4]  Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.201(c), Definitions—Facility, provides that a facility means, “an improved and maintained natural feature.”  The improvement of the natural feature should be based on a documented design that changes and improves natural characteristics of the feature.[5]  In addition, routine maintenance must be done to ensure the improvement performs as designed.[6]

The Applicant has consistently asserted that the harbors were actively maintained before the disaster.  As evidence, the Applicant provided photographs showing boats and cargo ships accessing the harbors.  The Applicant asserts that if the harbors were not maintained, this would not be possible.  In addition, the Applicant states that the harbor bottoms did not require regular dredging to maintain a functional depth because both were designed to inhibit Mississippi River water tidal flow, which is normally the cause of silt build up in facilities along the Mississippi River.  The Applicant submitted design plans demonstrating that it improved upon the natural features through excavation and dredging as part of the design of the harbors.  Finally, the Applicant states that the harbor floors are maintained through “prop wash,” a process that involves the hydrodynamics of the vessels transiting the harbor to create a pushing effect that moves excess silt and sediment from reducing the depth of navigated waterways.   

Based on a review of the design plans submitted by the Applicant, the harbors are “improved” natural features, as required by 44 C.F.R. § 206.201(c).  Moreover, the Applicant’s assertion that it designed the harbors to be maintenance free is reasonable as the Applicant constructed bulkheads at both harbors to restrict tidal flow from entering the harbor.  Further, the Applicant’s assertion that the functional depth of both harbors could be maintained through “prop wash” is valid.  Prop wash agitation dredging is a documented, valid maintenance technique that is effective under very specific conditions.[7]  This is a cost-effective method of maintaining a harbor and one, if used, would not necessarily be documented by the operator of the facility.  Based on the design of the harbors, the location along the Mississippi River, the type of soil that exists at that location, and the fact that the harbors were fully operational prior to the event, it is reasonable to conclude that the Applicant both improved and maintained them, and as such, the harbors are eligible facilities. 

Eligibility of the Debris Removal

Pursuant to 44 C.F.R. § 206.223(a), General Work Eligibility, an eligible item of work must be required as the result of the disaster event.  The March 2008 Survey, reports the findings of post-event field surveys and related analysis conducted by the Applicant’s consultant.  To determine storm-related debris and sediment, the consultant took soil samples from the harbor floors, analyzed the samples for varying sediment characteristics, and estimated the profile of the pre-storm harbor floors using a linear interpolation of the sediment characteristics found at each sample location.[8]  Based on the Survey results, the consultant estimated that Hurricane Katrina deposited 21,000 CY of sediment at Empire Boat Harbor and 60,000 CY of sediment at Buras Boat Harbor.  As stated in the RA’s decision, FEMA cannot rely on surveys conducted after the disaster without pre-disaster records.  The Acting RA made the same determination in response to the appeals of PWs 18142 and 18143, by requiring that the Applicant “produce maintenance records and surveys to demonstrate the pre-disaster capacity of its harbors and supporting the estimate of eligible sediment to be removed.” (emphasis added.)  The Applicant continues to maintain that it has no records to demonstrate the pre-disaster level of sediment in the harbors but should be able to produce documentation which establishes the depth of the waterways and maximum draft of ships which used each facility prior to the event.  Such documentation, applied in conjunction with the data presented in the Survey, can be used to estimate the quantity of sediment deposited in each harbor as a result of the event.  Accordingly, FEMA will provide funding to restore the harbors to its pre-Katrina navigational depth, contingent upon the Applicant’s ability to provide FEMA Region VI with sufficient documentation, such as the navigational drafts of vessels which used the facility, nautical charts, Local Notices to Mariners, Coast Pilots, or other documents demonstrating the pre-Katrina depth of the harbors.[9]