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Second Appeal Brief
PA ID# 001-226620-00; Town of Fairfield
PW ID# 597; Legal Responsibility – Other Federal Agency – Debris Removal – Waterways
Conclusion: Pursuant to RP9523.5, Debris Removal from Waterways, debris removal work performed on the Southport Channel (Facility) following Hurricane Sandy is ineligible for Public Assistance (PA) reimbursement because the Facility is a federally maintained navigable channel and the work falls under the specific authority of the USACE.
From October 27 to November 8, 2012, severe high winds, flooding and storm surges resulting from Hurricane Sandy deposited sand, cobble, shell cultch and vegetative debris into various waterways located in Fairfield, Connecticut. FEMA prepared Project Worksheet (PW) 597 to document dredging activities related to Southport Channel, Pine Creek Channel and South Benson Channel. FEMA subsequently determined that dredging work in the Southport Channel was ineligible for reimbursement because it is a Federal Navigation Project and falls under the more specific authority of the U.S. Army Corps of Engineers (USACE). As such, FEMA reduced $220,850.00 in funding from PW 597. The Applicant appealed FEMA’s decision arguing that there was not an absolute statutory or regulatory prohibition on funding debris removal from the Facility, the USACE’s more specific authority did not conflict with FEMA’s broader authority to reimburse debris removal, and regardless of whether USACE was responsible for debris removal, other work on the Facility was eligible for PA reimbursement. The Grantee also argued that Stafford Act § 705(c) prevented FEMA from deobligating funding obligated in PW 597. The Region I Regional Administrator (RA) partially granted the first appeal with respect to 1,736 cubic yards (CY) of debris dredged outside the Navigation Project and under the Applicant’s authority. However, the RA denied the remainder of the appeal determining that the dredging within the Navigation Project’s boundaries was under the specific authority of the USACE. The RA also found that Stafford Act § 705(c) did not apply because not all of the requirements of the Section had been met. On second appeal, the Grantee asserts that FEMA has the more specific authority for disaster-related debris removal under the Stafford Act, FEMA’s reliance on RP9523.5, Debris Removal from Waterways is inappropriate because the policy is contrary to the plain meaning of Stafford Act §§ 101, 403 and 407, and USACE’s more specific authority does not prevent FEMA from funding the requested work.
Authorities and Second Appeals
- Stafford Act §§ 101, 312, 325, 403, and 407.
- 44 C.F.R. § 206.226(a).
- RP9523.5, Debris Removal from Waterways (Oct. 30, 2012).
- Sections 403 and 407 of the Stafford Act authorize FEMA to reimburse an eligible applicant for certain debris removal activities.
- Pursuant to RP9523.5, Debris Removal from Waterways, debris removal from a federally maintained channel or waterway or for which another federal agency has more specific authority is ineligible under the PA Program.
- Southport Channel is maintained by the USACE.
- The USACE has specific authority for debris removal of Southport Channel through its general Operation and Maintenance regulation and Public Law 113-2, Disaster Relief Appropriations Act, 2013.