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Second Appeal Brief
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1568; Beaches – Direct Result of the Disaster – Legal Responsibility – Other Federal Agency – Sand Replacement
Conclusion: Louisiana’s coastal barrier islands and headlands, as a whole, do not qualify as a “system” because they were not “built or manufactured” in accordance with a design, nor is the Pass La Mer to Chaland Pass Restoration Project (BA-38(2)) a “facility” because the Applicant failed to demonstrate regular maintenance. Funding is also precluded because another Federal program is charged with the restoration of these islands and headlands.
Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to sand fencing, a beach and dunes, as well as vegetative plantings on BA-38(2). FEMA prepared Project Worksheet 1568 to document the repair work, finding sand fencing repairs eligible and the remainder of the work ineligible due to a lack of a regular maintenance plan, and the work being the responsibility of another federal agency. On first appeal, the Applicant argued that: (1) the work is eligible as there is no other agency with specific authority to repair the damages in question, (2) FEMA’s denial of eligibility on the basis of purported legal authority of another federal agency is contrary to statute, regulation, and policy, (3) BA-38(2) is an eligible nonstructural project for shoreline stabilization designed to mimic, enhance, or restore natural stabilization systems per FEMA’s regulations implementing the Coastal Barrier Resources Act (CBRA), and (4) BA-38(2) is an eligible facility because it is does not require routine maintenance, or FEMA should recognize inspection reports as sufficient to establish pre-disaster condition. The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) the natural features of BA-38(2) were not maintained and thus failed to meet the regulatory requirements to be considered an improved beach, (2) the cost share provision of the Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA) does not allow FEMA to fund the state share, (3) projects must meet PA eligibility requirements before determining whether the project is compliant with CBRA, and (4) FEMA is prohibited from funding the repairs due to the Applicant’s agreement with the National Marine Fisheries Service to construct BA-38(2). On second appeal, the Applicant argues that FEMA’s denial is erroneous because: (1) there is no other federal agency responsible for funding the disaster-related repairs; and (2) BA-38(2) is an eligible “facility.”
Authorities and Second Appeals
- Stafford Act §§ 102(9)(C), 312(a), 705(c).
- 16 U.S.C. §§ 3502(6)-(7), 3951-3956.
- 44 C.F.R. §§ 206.201(c), (j), 206.226(a), (j), 206.340, 206.343(a).
- PA Guide, at 22.
- FEMA Recovery Policy FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures (Mar. 31, 2016).
- FEMA Second Appeal Analysis, Louisiana Department of Natural Resources Isles Dernieres Restoration Projects, FEMA-1437-DR-LA (Jan. 25, 2005)
- FEMA Second Appeal Analysis, Ventura County, FEMA-1577-DR-CA (July 7, 2009)
- 44 C.F.R. § 206.201 defines a facility as “any publicly or privately owned building, works, system or equipment, built or manufactured, or an improved and maintained natural feature.”
- Louisiana’s coastal barrier islands and headlands, as a whole, do not qualify as a “system” because they were not “built or manufactured.”
- The PA Guide states that maintenance must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.
- BA-38(2) is not a “facility” because the Applicant failed to demonstrate that the Chaland Headland was maintained.
- 44 C.F.R. § 206.226(a) limits PA funding where there is another Federal authority to restore facilities.
- CWPPRA creates an ongoing Federal program to specifically address restoration of the barrier islands and headlands.