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Emergency Shore Protection
Appeal Brief
Appeal Letter
Citation: FEMA-1134-DR-NC; Town of North Topsail Beach; DSR 01058
Cross-Reference: Coastal Barrier Resources Act; Emergency work
Summary: DSR 01058 was prepared for $1,431,958 to cover costs associated with construction of an "emergency" berm to protect domestic property and public infrastructure from potential coastal flooding in the Town of North Topsail Beach, following Hurricane Fran (FEMA-1134-DR-NC). After consulting with the U.S. Department of the Interior, Fish and Wildlife Service (FWS), FEMA determined that the work was ineligible because the berm and protected property are located within a unit of the Coastal Barrier Resources System (CBRS) according to the Coastal Barrier Resources Act (CBRA). The subgrantee submitted a first appeal and contended that the work was an exception to 44 CFR 206.344, because it qualifies as an emergency protective measure under 44 CFR 206.346(a)(2). The appeal was denied because the work was found to be "not consistent with the purposes of the CBRA as required by 44 CFR 206.341." In their second appeal, the subgrantee restates their position from the first appeal. The documentation submitted with both appeals includes correspondence from the FWS. This correspondence indicates that the FWS believes the work was not consistent with the purposes of the CBRA. Further, the FWS opined that the berm is not cost-beneficial and that its construction adversely affects flora and fauna. They state that most improved property is at least eight feet above the design-frequency flood.
Issues:
Appeal Brief
| Disaster | FEMA-1134-DR |
| Applicant | Town of North Topsail Beach |
| Appeal Type | Second |
| PA ID# | 133-47845 |
| PW ID# | 01058 |
| Date Signed | 1998-02-18T05:00:00 |
Cross-Reference: Coastal Barrier Resources Act; Emergency work
Summary: DSR 01058 was prepared for $1,431,958 to cover costs associated with construction of an "emergency" berm to protect domestic property and public infrastructure from potential coastal flooding in the Town of North Topsail Beach, following Hurricane Fran (FEMA-1134-DR-NC). After consulting with the U.S. Department of the Interior, Fish and Wildlife Service (FWS), FEMA determined that the work was ineligible because the berm and protected property are located within a unit of the Coastal Barrier Resources System (CBRS) according to the Coastal Barrier Resources Act (CBRA). The subgrantee submitted a first appeal and contended that the work was an exception to 44 CFR 206.344, because it qualifies as an emergency protective measure under 44 CFR 206.346(a)(2). The appeal was denied because the work was found to be "not consistent with the purposes of the CBRA as required by 44 CFR 206.341." In their second appeal, the subgrantee restates their position from the first appeal. The documentation submitted with both appeals includes correspondence from the FWS. This correspondence indicates that the FWS believes the work was not consistent with the purposes of the CBRA. Further, the FWS opined that the berm is not cost-beneficial and that its construction adversely affects flora and fauna. They state that most improved property is at least eight feet above the design-frequency flood.
Issues:
- Is FEMA required to consult the FWS to determine the eligibility of an emergency protective measure?
- Should FEMA fund construction of the emergency berm?
- No. Pursuant to 44 CFR 206.347(b)(1), the Secretary of the Interior has determined that emergency work listed in 44 CFR 206.346(a) may be approved by FEMA without consultation from the FWS.
- No. The emergency berm did not decrease the risk to life or public safety. Further, the protection provided by the berm to nearby infrastructure does not exceed the cost of the emergency measure.
Appeal Letter
February 18, 1998
Mr. Bill Ray Cameron
Assistant Secretary
Crime Control and Public Safety
116 West Jones Street
Raleigh, North Carolina 27603
Dear Mr. Cameron:
This letter is in response to your August 1, 1997, submittal of the Town of North Topsail's second appeal of damage survey report (DSR) 01058 under FEMA-1134-DR-NC. This DSR was prepared for $1,431,958 to cover costs associated with the construction of an "emergency" berm (i.e., 27,658 linear feet of sand) intended to protect domestic property and public infrastructure from coastal flooding following Hurricane Fran. After consulting with the U.S. Department of the Interior, Fish and Wildlife Service (FWS), FEMA determined that the work described in DSR 01058 was ineligible because the protected property was located within the Coastal Barrier Resources System (CBRS) (Unit L06) according to the Coastal Barrier Resources Act (CBRA) (Public Law 97-348, passed in 1982).
The subgrantee submitted a first appeal on May 1, 1997. In the appeal, they contended that the work should be eligible because it is an emergency protective measure. They claimed that, pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.346(a)(2), the work was required to prevent the loss of life, prevent damage to improved property, and protect public health and safety. The appeal was denied because, based on a report prepared by the FWS, the work was "not consistent with the purposes of the CBRA as required by 44 CFR 206.341."
In their July 30, 1997, second appeal, the subgrantee restates their position from the first appeal. The documentation included with both appeals includes correspondence from the FWS. This correspondence indicates that the work is not consistent with the purposes of the CBRA, as it would encourage redevelopment of the CBRS. Further, the FWS states that the berm would adversely affect flora and fauna and that most improved property is at least eight feet above the design-frequency flood (i.e., flood resulting from a storm event with a recurrence interval of five years, including tidal surge).
The CBRA prohibits new Federal expenditures within the CBRS, with certain exceptions. The allowable exceptions for the Public Assistance Program include emergency protective measures that are consistent with both the purposes of the CBRA and the criteria set forth in sections 402, 403, and 502 of the Stafford Act. Pursuant to 44 CFR 206.347(b)(1), the Secretary of the Interior has determined that such emergency work may be approved by FEMA without prior consultation from the FWS. Therefore, funding for the work associated with DSR 01058 may be approved by FEMA if it conforms to 44 CFR 206.225(a).
In order to determine whether the work is in accordance with 44 CFR 206.225(a), the subgrantee must establish that the threat from a five-year storm event subsequent to Hurricane Fran would pose a threat to life, public health or safety, or improved property. However, the documentation submitted clearly indicates that a five-year storm event would not pose a threat to life or public health or safety. Therefore, to be eligible, the proposed protective measure must be required to eliminate or lessen an immediate threat of significant additional damage to improved public or private property, through measures which are cost-effective.
For this analysis, the property protected by the berm includes any infrastructure exposed to the floodwaters of a five-year flood event. Based on a survey of the property exposed to this level of flooding, FEMA has determined that few, if any, domestic properties would be threatened by such an event. Further, FEMA has determined that a five-year event would have minimal adverse impact on public infrastructure. This determination is supported by the fact that Hurricane Fran, which was approximately a one hundred-year storm event, resulted in only $386,721 in damages to the two (2) two-lane highways spanning the island. These two highways are the most significant public infrastructure that could be exposed to flooding from a five-year event. Other major infrastructure includes a water treatment facility, but this facility would not be exposed to floodwaters from a five-year event. Consequently, FEMA may conclude that the damages to all public infrastructure from a five-year event, which is of considerably lesser magnitude than Hurricane Fran, would be much less than the $1,431,958 cost of the emergency berm. As such, the work is not cost-beneficial and not in accordance with 44 CFR 206.225(a)(3)(ii). Therefore, the appeal is denied.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: John B. Copenhaver
Regional Director
Region IV
Mr. Bill Ray Cameron
Assistant Secretary
Crime Control and Public Safety
116 West Jones Street
Raleigh, North Carolina 27603
Dear Mr. Cameron:
This letter is in response to your August 1, 1997, submittal of the Town of North Topsail's second appeal of damage survey report (DSR) 01058 under FEMA-1134-DR-NC. This DSR was prepared for $1,431,958 to cover costs associated with the construction of an "emergency" berm (i.e., 27,658 linear feet of sand) intended to protect domestic property and public infrastructure from coastal flooding following Hurricane Fran. After consulting with the U.S. Department of the Interior, Fish and Wildlife Service (FWS), FEMA determined that the work described in DSR 01058 was ineligible because the protected property was located within the Coastal Barrier Resources System (CBRS) (Unit L06) according to the Coastal Barrier Resources Act (CBRA) (Public Law 97-348, passed in 1982).
The subgrantee submitted a first appeal on May 1, 1997. In the appeal, they contended that the work should be eligible because it is an emergency protective measure. They claimed that, pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.346(a)(2), the work was required to prevent the loss of life, prevent damage to improved property, and protect public health and safety. The appeal was denied because, based on a report prepared by the FWS, the work was "not consistent with the purposes of the CBRA as required by 44 CFR 206.341."
In their July 30, 1997, second appeal, the subgrantee restates their position from the first appeal. The documentation included with both appeals includes correspondence from the FWS. This correspondence indicates that the work is not consistent with the purposes of the CBRA, as it would encourage redevelopment of the CBRS. Further, the FWS states that the berm would adversely affect flora and fauna and that most improved property is at least eight feet above the design-frequency flood (i.e., flood resulting from a storm event with a recurrence interval of five years, including tidal surge).
The CBRA prohibits new Federal expenditures within the CBRS, with certain exceptions. The allowable exceptions for the Public Assistance Program include emergency protective measures that are consistent with both the purposes of the CBRA and the criteria set forth in sections 402, 403, and 502 of the Stafford Act. Pursuant to 44 CFR 206.347(b)(1), the Secretary of the Interior has determined that such emergency work may be approved by FEMA without prior consultation from the FWS. Therefore, funding for the work associated with DSR 01058 may be approved by FEMA if it conforms to 44 CFR 206.225(a).
In order to determine whether the work is in accordance with 44 CFR 206.225(a), the subgrantee must establish that the threat from a five-year storm event subsequent to Hurricane Fran would pose a threat to life, public health or safety, or improved property. However, the documentation submitted clearly indicates that a five-year storm event would not pose a threat to life or public health or safety. Therefore, to be eligible, the proposed protective measure must be required to eliminate or lessen an immediate threat of significant additional damage to improved public or private property, through measures which are cost-effective.
For this analysis, the property protected by the berm includes any infrastructure exposed to the floodwaters of a five-year flood event. Based on a survey of the property exposed to this level of flooding, FEMA has determined that few, if any, domestic properties would be threatened by such an event. Further, FEMA has determined that a five-year event would have minimal adverse impact on public infrastructure. This determination is supported by the fact that Hurricane Fran, which was approximately a one hundred-year storm event, resulted in only $386,721 in damages to the two (2) two-lane highways spanning the island. These two highways are the most significant public infrastructure that could be exposed to flooding from a five-year event. Other major infrastructure includes a water treatment facility, but this facility would not be exposed to floodwaters from a five-year event. Consequently, FEMA may conclude that the damages to all public infrastructure from a five-year event, which is of considerably lesser magnitude than Hurricane Fran, would be much less than the $1,431,958 cost of the emergency berm. As such, the work is not cost-beneficial and not in accordance with 44 CFR 206.225(a)(3)(ii). Therefore, the appeal is denied.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: John B. Copenhaver
Regional Director
Region IV