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Second Appeal Brief
PA ID# 001-59735-00; Town of Sandwich
PW ID# 300 and 818; Beaches, Direct Result of Disaster
Conclusion: The Town of Sandwich (Applicant) did not demonstrate that it routinely maintained Town Neck Beach or that the sand loss claimed was the direct result of the disasters. As such, the repairs to the dune at the beach are ineligible for Public Assistance funding.
Town Neck Beach is located in the Town of Sandwich (Applicant). In 1990, due to increased erosion on the beach as a result of the construction of the Cape Cod Canal (Canal) and two of its jetties, the Applicant constructed a dune on the beach. In 2004, the Applicant constructed a second dune adjacent to the original, and also renourished the first one. In late 2012 and early 2013, Hurricane Sandy (FEMA-4097-DR-MA) and a severe winter storm (FEMA-4110-DR-MA) caused damage throughout Massachusetts. The Applicant applied for Public Assistance (PA) funding, asserting the severe weather conditions and heavy wave and tidal action from those storms caused sand loss from the two dunes. FEMA prepared Project Worksheet (PW) 300 to document the request associated with FEMA-4097-DR-MA, and prepared PW 818 to document the request related to FEMA-4110-DR-MA. FEMA then determined Town Neck Beach was ineligible for PA as it did not meet the criteria of an improved natural feature, pursuant to 44 C.F.R. § 206.226(j) and FEMA Disaster Assistance Fact Sheet 9580.8, Eligible Sand Replacement on Public Beaches. FEMA found the Applicant did not demonstrate that it established and adhered to a regular maintenance program and preserved the dunes’ original design through periodic renourishment. The Applicant appealed FEMA’s determination, asserting the improvements made in 1990 and 2004, as well as other attempts at maintenance, demonstrate routine maintenance. The Regional Administrator (RA) denied the appeal, noting the Applicant failed to renourish the beach between 1990 and 2004, and again between 2004 and the start of the disasters in 2012. The RA further concluded he also could not determine how much sand was lost due to the two disasters based on the submitted documentation. The Applicant appeals the RA’s decision asserting it supplied sufficient documentation to establish its maintenance program. It points to two maintenance activities completed in 2004 and 2016 as evidence thereof and also claims that it showed the pre- and post-storm profiles to demonstrate the amount of sand eligible for replacement. FEMA finds that the Applicant did not demonstrate routine maintenance, and that the documentation shows the Applicant only renourished the beach once prior to the disasters and relied on the dredging of the Canal, rather than establishing a periodic renourishment program. The Applicant also did not demonstrate the amount of sand loss claimed was caused by the two disasters.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.201(c), 206.223, and 206.226(j).
- PA Guide, at 86-87.
- DAFS 9580.8, Eligible Sand Replacement on Public Beaches, at 3-4.
- FEMA Second Appeal Analysis, Texas General Land Office, FEMA-1791-DR-TX, at 2.
- FEMA Second Appeal Analysis, County of Los Angeles, FEMA-1577-DR-CA, at 2.
- Pursuant to Stafford Act § 406 and 44 C.F.R. §§ 206.201(c) and 206.226(j)(2), FEMA may fund work to restore an improved and maintained beach, but only if an applicant established and adhered to a maintenance program involving periodic renourishment.
- The Applicant only renourished the sand once and did not show it established and adhered to a routine maintenance program.
- Pursuant to 44 C.F.R. § 206.223(a)(1), an item of work must be required as a direct result of a disaster in order to be eligible for funding.
- The Applicant did not demonstrate that the amount of sand loss claimed was the direct result of the two disasters.