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Emergency Beach Berm

Appeal Brief Appeal Letter

Appeal Brief

Disaster1490
ApplicantTown of Kill Devil Hills
Appeal TypeSecond
PA ID#055-35720-00
PW ID#10
Date Signed2008-01-14T05:00:00
Citation: FEMA-1490-DR-NC, Town of Kill Devil Hills, NC, Project Worksheet 10 Sprigging of Vegetation on Emergency Berm

Cross-reference: Emergency Protective Measures, Codes and Standards

Summary: Hurricane Isabel struck the coast of North Carolina on September 18, 2003, causing wave activity and a storm FEMA prepared Project Worksheet (PW) 10 for $674,586 to construct a 1.2 mile emergency berm to protect improved property along the beach. Following project closeout, the Town requested an additional $31,368 to stabilize the berms with vegetative sprigs. On March 12, 2007, FEMA denied the appeal stating that the beach was not an improved beach; therefore, it was not eligible for sprigging to stabilize the sand berm. The Town submitted a second appeal dated March 30, 2007, which was received by the Assistant Administrator on August 6, 2007. The second appeal reiterates the Town’s claims from the first appeal: sprigging was required to stabilize the sand berm based on the North Carolina Coastal Area Management Act (CAMA) and the Town Code. The Town also states that FEMA had verbally indicated that sprigging was an eligible expense.

Issues: Is sprigging of beach grass on an emergency sand berm an eligible cost?

Findings: Yes.
Rationale: 44 CFR § 206.225(a)(2)

Appeal Letter

January 14, 2008

Mr. Doug Hoell
Director
North Carolina Division of Emergency Management
4716 Mail Service Center
Raleigh, NC 27699

Re: Second Appeal – Town of Kill Devil Hills, PA ID 055-35720-00, Emergency Beach Berm, FEMA-1490-DR-NC, Project Worksheet (PW) 10

Dear Mr. Hoell:

This letter is in response to the above referenced second appeal forwarded by your office on April 20, 2007. The Town of Kill Devil Hills (Town) is appealing the Federal Emergency Management Agency’s (FEMA) denial of its request for an additional $31,368 to fund the sprigging of beach grass on emergency sand berms placed to protect improved property following Hurricane Isabel in 2003.

FEMA approved $605,374 to fund the construction of a 1.2-mile emergency sand berm to protect improved property along the beach in the Town. The approved scope of work included hauling, placing, and shaping sand to create the emergency berm. FEMA approved an additional $69,212 during closeout in August 2006. FEMA denied the Town’s request for an additional $31,368 for vegetative sprigging to stabilize the emergency berms because they were not permanent facilities.

The Town appealed this decision by letter dated November 2, 2006. It claimed that FEMA had verbally approved the sprigging, and that it was required to stabilize the berm based on North Carolina Coastal Area Management Act (CAMA) regulations and a Town Code specific to soil erosion and sediment control. FEMA denied the first appeal in a letter dated March 12, 2007, because the use of grass for erosion control is not eligible for temporary facilities.
The Town submitted its second appeal by letter dated March 30, 2007. It reiterates its first appeal claims. It states that “pre-approval by a FEMA representative” and code requirements regarding erosion control and stabilization should make the work eligible.

The Town asserts that section 153.071 of the Town Code requires that erosion controls measures be implemented when land disturbing activities exceed ½ acre. Section 153.071 states that the purpose of this provision is to “Regulate certain land-disturbing activity to control accelerated erosion and sedimentation in order to prevent the pollution of water and other damages to lakes, watercourses
and other public and private property by sedimentation.” Since shifting of sand along beaches is a natural phenomenon, it appears that this provision of the code does not apply to beaches.

Section 15A NCAC 07H.0308(b)(3) of the CAMA regulations states that “Adding to dunes shall be accomplished in such a manner that the damage to existing vegetation is minimized. The filled areas shall be immediately replanted or temporarily stabilized until planting can be successfully completed.” Based on review of all information submitted with the appeal, I have determined that the CAMA regulations establish a requirement for planting grass on sand dunes. Therefore, the work is eligible pursuant to 44 CFR §206.225(a)(2). Accordingly, I am approving the appeal. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this decision.

Please inform the Town of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major P. May
Regional Administrator
FEMA Region IV