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Second Appeal Letter
PA ID# 000-UCPOY-00; Louisiana Department of Natural Resources
PW ID# 4576; Timbalier Island Sand Fencing
March 12, 2012
Governor’s Office of Homeland Security and Emergency Preparedness
State of Louisiana
7667 Independence Boulevard
Baton Rouge, LA 70806
Re: Second Appeal–Louisiana Department of Natural Resources, PA ID 000-UCPOY-00, Timbalier Island Sand Fencing, FEMA-1607-DR-LA, Project Worksheet (PW) 4576
Dear Mr. Davis:
This is in response to a letter from your office dated August 19, 2010, transmitting the referenced second appeal on behalf of the Louisiana Department of Natural Resources (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $55,876 to replace sand fencing on Timbalier Island.
In 2005, storm surge and high winds from Hurricane Rita caused significant damage to sand fencing on Timbalier Island. Timbalier Island is a project funded under the Coastal Wetlands Planning and Restoration Act (CWPRA). CWPRA established a coordinated effort among Federal and State agencies to construct and maintain coastal restoration projects throughout coastal Louisiana.
FEMA prepared Project Worksheet (PW) 4576 to remove and replace 4,500 linear feet (LF) of sand fencing in the amount of $55,876. On September 28, 2009, FEMA de-obligated PW 4576 based on a determination that the repairs were under the specific authority of the Environmental Protection Agency (EPA). Pursuant to FEMA regulations at 44 Code of Federal Regulations (CFR) §206.226(a) Assistance under other Federal agency (OFA) programs, “Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”
In its first appeal, the Applicant provided a letter from EPA dated August 5, 2009, stating that EPA does not have any specific authority to repair the damage. The Regional Administrator denied the first appeal because the Memorandum of Agreement between EPA, the U.S. Army Corps of Engineers (USACE), and the Applicant, provides that the parties to the Memorandum of Agreement (MOA) are responsible for the long-term monitoring, maintenance, repair and rehabilitation of authorized project features.
The Applicant submitted its second appeal on June 16, 2010, reiterating its request for funding for the repair of the sand fencing on Timbalier Island. The Applicant argued that neither EPA nor USACE has specific authority for the repairs.
The Cooperative Agreement dated June 14, 2000, between EPA and the Applicant, which provides a scope of services for the implementation of the CWPRA project, describes the long-term operations and maintenance for the project and states that funding will be through an MOA between EPA, USACE, and the Applicant. FEMA has reviewed the Cooperative Agreement and the MOA and has determined the repair of the damaged sand fencing does not fall under the specific authority or responsibility of another Federal agency.
I have reviewed the information submitted with the appeal and have determined that the Applicant’s appeal should be granted in full. By this letter, I am requesting that the Regional Administrator take appropriate action to implement my decision.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Deputy Associate Administrator
Office of Response and Recovery
cc: Tony Russell
FEMA Region VI