Port Fourchone beach erosion control structure

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1792-DR
ApplicantGreater Lafourche Port Commission
Appeal TypeSecond
PA ID#057-UPFLP-00
PW ID#01504
Date Signed2012-06-19T04:00:00

Citation:         FEMA-1792-DR-LA, Greater Lafourche Port Commission, Port Fourchone beach erosion control structure, Project Worksheet (PW) 01504

Cross-

Reference:     Emergency Protective Measures

Summary:       In 2008, storm surge resulting from Hurricanes Gustav and Ike eroded material from a beach erosion control structure (“shore protection structure”) in Fourchon Beach at Port Fourchon.  FEMA preparedPW 01504 for $897,298 for placing dredged material in front of a shore protection structure.  On September 24, 2010, a FEMA eligibility review determined that the work included in PW 01504 was ineligible in accordance with Disaster Assistance Fact Sheet 9580.8 (DAP 9580.8), Eligible Sand Replacement on Public Beaches, dated October 1, 2009, which states that for sand replacement to qualify as an eligible emergency protective measure, it must, pursuant to Title 44 of the Code of Federal Regulations (44CFR) § 206.225(a)(3), protect life and improved property from damage from a 5-year storm.  In the first appeal, dated April 14, 2011, the Applicant stated that the placement of the dredged material on the seaward side of the protection structure prevented further erosion and enhanced the protection of the Port facility.  The Applicant explained that the original purpose of the dredging contract was to repair damage to the inland side of the protective structure from Hurricane Katrina.  However, after Hurricanes Gustav and Ike, the Applicant determined that the material would be best used by placing the dredge materials on the seaward side of the protective structure in order to add height and prevent total destruction of the shore protection structure from a future disaster.  The Regional Administrator denied the appeal on August 31, 2011, stating that the beach protection structure was not at risk of significant damage from a 5-year storm, since it had recently been impacted by two hurricanes within 11 days of each other.

                        In the Applicant’s second appeal, dated November 23, 2011, the Applicant asserted that FEMA had misunderstood the reason for placing the dredged materials on the seaward side of the protective structure.  Additionally, the Applicant contended that DAP9580.8 was published more than a year after the declaration of Hurricanes Gustav and Ike and was, therefore, not applicable to FEMA-1792-DR-LA.

Issue:              Is the placement of dredged materials on the seaward side of the shore protection structure an eligible Category B, emergency protective measure?

Finding:          Yes.  The Applicant sufficiently established that the completed work reduced the threat of additional damage to improved property from a 5-year storm.

Rationale:       DAP9580.8 Eligible Sand Replacement on Public Beaches, dated October 1, 2009; 44CFR § 206.225(a)(3)

Appeal Letter

June 19, 2012

Kevin Davis

Director

Governor’s Office of Homeland Security and Emergency Preparedness

7667 Independence Boulevard

Baton Rouge, Louisiana 70806

Re:Second Appeal- Greater Lafourche Port Commission, PA ID 057-UPFLP-00, Port Fourchon Beach Erosion Control Structure, FEMA-1792-DR-LA, Project Worksheet (PW) 01504

Dear Mr. Davis:

This is in response to your January 24, 2012 letter, which transmitted the referenced second appeal on behalf of Greater Lafourche Port Commission (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $897,298 in funding for placing dredged materials in front of a beach erosion control structure.

As explained in the enclosed analysis, I have determined that the Applicant submitted sufficient documentation to support $897,298 in funding for placing dredged materials in front of a beach erosion control structure.  Therefore, I am approving the appeal for $897,298.  By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.

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

/s/

Elizabeth A. Zimmerman

Deputy Associate Administrator

Office of Response and Recovery

Enclosure

cc:   Tony Robinson

        Acting Regional Administrator

        FEMA Region VI

Appeal Analysis

Background

In 2008, storm surge resulting from Hurricanes Gustav and Ike eroded materials from the seaward side of a 5,000 foot long beach erosion control structure (“shore protection structure”) in Fourchon Beach at Port Fourchon.  The purpose of the shore protection structure is to protect Port Fourchon and prevent beach narrowing and erosion.  The shore protection structure consists of fibrous and concrete grout filled sacks called “boudin bags”.  At the foot of the boudin bags are articulated ergo mats extending toward the Gulf that prevent waves from undermining the shore protection structure.  Because Hurricanes Gustav and Ike struck Port Fourchon within 11 days of each other, FEMA combined and documented the damage with PW 01504 under the Hurricane Ike declaration FEMA-1792-DR-LA.  The Applicant requested reimbursement for the incurred costs of placing 228,716 cubic yards of dredged materials in front of the shore protection structure as an emergency protection measure.  FEMA calculated that only 101,850 cubic yards of sand would have been required to build an emergency protective berm and by using the Applicant’s unit cost of $8.81 per cubic yard prepared PW 01504 for $897,298.

On September 24, 2010, a FEMA eligibility review determined that the work included in PW 01504 was ineligible in accordance with Disaster Assistance Fact Sheet 9580.8 (DAP 9580.8), Eligible Sand Replacement on Public Beaches, dated October 1, 2009, which states that for sand replacement to qualify as an eligible emergency protective measure, it must, pursuant to Title 44 of the Code of Federal Regulations (44CFR) § 206.225(a)(3), protect life and improved property from damage from a storm with a magnitude of a 5-year event.  The reviewer explained that the shore protection structure and pipelines were not subject to significant damage from a 5-year storm that would warrant an emergency protective berm.

First Appeal

The Applicant appealed this determination with a letter dated April 14, 2011.  In the appeal letter, the Applicant asserted that the placement of the dredged material on the seaward side of the protection structure prevented further erosion and enhanced the protection of the Port facility.  It further stated that the dredged material was necessary for the protection of the Chevron tank farm’s petroleum pipelines beneath the beach.  The appeal letter explained that 264,000 barrels of oil flow through the Chevron pipelines daily and the protection structure prevents the erosion of the soil surrounding the pipelines.  The appeal noted that the Applicant issued a dredging contract prior to Hurricanes Gustav and Ike for the purpose of repairing damage to the inland side of the shore protective structure from Hurricane Katrina.  However, after Hurricanes Gustav and Ike, the Applicant determined that placing the dredged material on the seaward side of the shore protective structure would more effectively mitigate additional damages from a future disaster.  The Applicant also claimed that the Deepwater Horizon oil spill prevented the Applicant from performing permanent repairs funded with PW 7475 under FEMA-1603-DR-LA.  The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) forwarded the appeal to FEMA on June 13, 2011, with a recommendation of funding PW 01504 at the FEMA estimate of $897,298, as the placement of the dredged material on the seaward side of the protective structure effectively reduced the threat of damage from a future event.

The Regional Administrator (RA) responded to the Applicant’s appeal with a letter dated August 31, 2011.  The RA agreed that the beach protection structure is an improved property; however, the RA determined that the structure was not at risk of significant damage from a 5-year storm since it had recently survived the effects of two hurricanes within 11 days of each other.  In addition, the RA explained that emergency sand replacement must eliminate or lessen the threat to life and improved property from a 5-year storm as described in DAP 9580.8.  The RA further stated that there have not been any observations, information, or documentation of the pipelines being exposed or damaged by the hurricanes and subject to further damage from a five year storm event.

Second Appeal

The Applicant submitted a second appeal on November 23, 2011, in which it reiterates its first appeal position that the placement of dredged material on the seaward side of the shore protection structure enhances the protection of the Port facility.  In the appeal, the Applicant disputes the RA’s determination to deny the appeal according to DAP9580.8, dated October 1, 2009, and contends that as the factsheet was published more than a year after the declarations of Hurricanes Gustav and Ike, it is not applicable.  Furthermore, the Applicant states that FEMA misunderstood the reason for placing the dredged materials on the seaward side of the protective structure. The appeal explains that the purpose was not to re-nourish the beach, but to strengthen and shield the remaining shore protective structure until permanent repairs to the inland side are completed.  Additionally, the Applicant claims that there are no viable alternatives to protecting the shore protection structure and without the placement of dredged material the protective structure is at risk of failure from a future disaster.  Finally, the Applicant requested a meeting with FEMA to discuss the second appeal and on March 22, 2012, Applicant’s representatives met with the Director of the Public Assistance (PA) Program in Washington, DC to present additional information supporting the appeal.

Discussion

The Applicant submitted detailed photographs of the protective structure before and after the disaster.  The documentation identified emergency work activities the Applicant performed to protect the shore protection structure.  The photographic documentation also included a detailed timeline of the events that led to the delays in completing the previously funded permanent work on schedule.  As such, the Applicant substantiated that the claimed costs were for emergency protective measures for the purpose of protecting the shore protection structure from a 5-year event, as required by 44CFR §206.225(a)(3), Emergency work.  Since 44 CFR §206.221(c), Definitions, defines “immediate threat” as a threat of additional damage from a 5 year event, the application of DAP9580.8 to this appeal is not a deciding factor. 

Conclusion

Based on a comprehensive review and analysis of the data submitted with the appeal, FEMA has determined that the Applicant has submitted sufficient documentation justifying the placement of dredged material on the seaward side of the shore protection structure to protect Port Fourchon.  

As the Applicant has demonstrated that the completed work qualifies as an emergency protective measure, PW 01504 is therefore eligible for $897,298 in PA funding.

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