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Second Appeal Brief
PA ID# 045-00E4A-00; Bay St. Louis School District
PW ID# 11157; Tree Replacement
Conclusion: Tree replacement is not eligible for reimbursement under the Public Assistance program.
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 $3,536,330.82. At closeout, the Applicant requested an additional cost of $146,021.04 of which FEMA approved $115,813.74. FEMA denied $30,207.30, including a sod allowance of $6,000; landscaping trees for $21,900; and two desiccant dryers and two compressors for $2,307.30. The Applicant submitted its first appeal in a letter dated July 24, 2012. The FEMA Region IV Regional Administrator (RA) determined that some of the sod was for erosion control and issued a partial approval of $6,000. The RA denied the rest of the appeal, finding that the city ordinance requiring the replacement of trees regulated an ineligible item under the Public Assistance program. The Applicant submitted a second appeal maintaining that the trees were mitigation, required by zoning codes, and therefore should be eligible under the Public Assistance program. Tree replacement is not eligible under the Public Assistance program based on policy prohibitions that existed at the time of the disaster.
- FEMA Response and Recovery Directorate Policy Number 9524.5, Trees, Shrubs, and Other Plantings Associated with Facilities, (Sept. 1998).
- FEMA Response and Recovery Directorate Policy Number 9526.1 Hazard Mitigation
Funding Under Section 406 (Stafford Act), (Oct. 1998).
- FEMA Public Assistance Guide 322, (Oct. 1999) at 60.
- FEMA Public Assistance Guide 322, (Oct. 1999), at 60 provides that the “replacement of trees, shrubs, and other ground cover is not eligible. This restriction 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.”
FEMA Response and Recovery Directorate Policy Number 9524.5, Trees, Shrubs, and Other Plantings Associated with Facilities, (Sept. 24, 1998) 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).”