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Second Appeal Brief
PA ID# 075-99075-00; Plaquemines Parish
PW ID# 18811 and 18826 ; 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.
Authorities and Second Appeals
- Stafford Act § 406(a)(1)
- 44 C.F.R. § 206.201(c), Definitions—Facility.
- 44 C.F.R. § 206.223(a), General Work Eligibility.
- Stafford Act § 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.
- Under 44 C.F.R. § 206.201(c), provides that a facility means, “an improved and maintained natural feature.”
- FEMA reviewed design plans submitted by the Applicant and determined that the harbors are “improved” natural features.
- FEMA also determined that the Applicant’s assertion that it designed the harbors to be maintenance free is reasonable based on: (1) the Applicants constructed bulkheads at both harbors to restrict the tidal flow of the river from entering the harbor, and (2) the Applicant maintained the functional depth of the harbors through “prop wash,” a documented, valid, and effective maintenance technique.
- According to 44 C.F.R. § 206.223(a), an eligible item of work must be required as the result of the disaster event.
- The Applicant was unable to pre-disaster provide maintenance records. However, it provided a 2008 survey of estimated storm-related damage to the harbors.
- PA funding is contingent upon the Applicant’s ability to provide 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.
On August 29, 2005, as a result of Hurricane Katrina, a tidal surge of up to 20 feet of water with accompanying silt, mud, and debris inundated Plaquemines Parish’s (Applicant) four boat harbors, including the Empire Boat Harbor and Marina and the Buras Boat Harbor (harbors). The Applicant requested Public Assistance funding to remove the excess silt and debris from the harbors. FEMA initially denied Category A Project Worksheets (PWs) to the Applicant for both harbors. FEMA agreed to obligate PWs for Category G work if the Applicant could show prior maintenance to the harbors. In August 2011, FEMA obligated PWs 18811 (Empire Boat Harbor) and 18826 (Buras Boat Harbor) for $0.00 because the Applicant failed to show the pre-disaster level of sedimentation; therefore, an eligible scope of work could not be developed. In the first appeals, the Applicant asserted that routine dredging was unnecessary because the harbors are designed to be maintenance free. Accompanying the first appeals, the Applicant submitted a Hydrographic and Topographic survey, dated March 31, 2008, demonstrating pre-disaster levels. The Regional Administrator (RA) determined that the Applicant failed to demonstrate the harbors were designed to not require routine maintenance and that the survey, conducted by the Applicant’s contractor after the disaster, was subjective and did not conclusively establish any disaster-related sediment. In the second appeal, the Applicant asserts that the harbors were actively maintained, the harbor floors did not require regular dredging to maintain the functional depth of harbors, the floors of the harbors were maintained through “prop wash,” and post-disaster surveys are reliable sources to determine and establish the amount of disaster-related sediment.