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Second Appeal Brief
PA ID# 023-U8A08-00; Duxbury Beach Reservation, Inc.
PW ID# 842; Private Nonprofit
Conclusion: Pursuant to 44 C.F.R. § 206.222(b), without an eligible facility, the Applicant is not an eligible applicant under the PA program. As a private nonprofit (PNP), Duxbury Beach Reservation, Inc.’s (Applicant) facility does not meet the statutory or regulatory requirements for eligibility under the Public Assistance (PA) program.
The Applicant owns a facility that is comprised of a recreational beach, a roadway, and sacrificial barrier dunes. From February 8 to 10, 2013, a severe winter storm damaged the Applicant’s facility. Damages consisted of washout loss by tidal wave actions of the structural materials that formed the road and the dunes. FEMA documented, but did not obligate, the damages and permanent restoration scope of work (SOW) in Project Worksheet (PW) 842 for $884,699.62. FEMA later determined that the facility did not meet the definition of an eligible PNP facility and consequently denied PA reimbursement. The Applicant appealed FEMA’s determination stating its facility provided essential government service because the road was the sole access point to the beach and a private residential community, and the dunes protected surrounding communities from storm surge. The Regional Administrator denied the appeal explaining that (1) the facility was primarily recreational in nature, (2) the facility did not provide services of a governmental nature pursuant to 44 C.F.R. § 206.221(e)(7), (3) the Applicant failed to apply for a Small Business Administration (SBA) loan, and (4) the facility restoration completion occurred before FEMA could perform environmental and historic preservation reviews. On second appeal, the Applicant incorporates by reference, its arguments on first appeal and argues that its roadway performs essential government services. However, the Applicant also states it was not required to apply for an SBA loan because the roadway and dunes are critical services in that they provide access for emergency first responders.
Authorities and Second Appeals
- Stafford Act §§ 102, 406(a)(1)(B) and 406(a)(3).
- 44 C.F.R. §§ 206.221(e) and 206.222(b).
- DAP9521.3, Private Nonprofit Facility Eligibility (Jul. 18, 2007).
- Stafford Act § 406 authorizes FEMA to reimburse costs for restoring a PNP facility damaged by a disaster if the facility provides critical services or non-critical services after the owner/operator has applied for an SBA loan before applying for PA funding.
- Stafford Act § 406(a)(3)(B) defines “critical services” as “power, water, sewer, wastewater treatment, communications, education, and emergency medical care.”
- The Applicant’s facility does not provide critical services, nor is the roadway ancillary to a facility that provides these services.
- As the owner of a non-critical facility, the Applicant was required to apply for an SBA loan prior to seeking PA funding—which it failed to do.
- 44 C.F.R. § 206.221(e)(7) defines eligible PNP facilities that provide other essential government services as museums, zoos, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops and facilities which provide health and safety services of a governmental nature.
- The Applicant’s facility does not provide an essential service of a governmental nature, nor is the roadway ancillary to a facility that provides such services.