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Second Appeal Brief
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1513; Beaches – Direct Result of the Disaster – Sand Replacement
Conclusion: Louisiana’s coastal barrier islands, as a whole, do not qualify as a “system” because they were not “built or manufactured” in accordance with a design, nor is the Caminada Headland a “facility” because it was not improved or maintained. Funding is also precluded because there is a potential duplication of benefits.
Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to a sub-base platform composed of load-bearing sand, which was part of the Caminada Headland. At the time of the disaster, the Applicant was performing the design work for a beach and dune restoration project (BA-143). Construction of the project occurred after the disaster and was partially funded by the National Fish and Wildlife Foundation (NFWF). FEMA prepared Project Worksheet 1513 to document the work, finding it ineligible because the Caminada Headland is an unimproved natural feature, privately owned, and the work was the responsibility of another federal agency. On first appeal, the Applicant argued that: (1) NFWF is not a federal agency, and thus cannot have specific authority to repair the damages in question under Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act); (2) FEMA’s denial of eligibility on the basis of purported legal authority of another federal agency is contrary to Section 312 of the Stafford Act and FEMA’s regulations and policies; (3) previous preservation, maintenance, and restoration efforts demonstrate that the Caminada Headland is an improved natural feature; and (4) the Applicant is legally responsible for the work. The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) the list of prior projects provided by the Applicant did not establish that the Caminada Headland was an improved and maintained natural feature; (2) there was insufficient documentation to show that the Applicant was legally responsible for the project; and (3) BA-143 is funded by the NFWS, therefore FEMA funding would constitute a duplication of benefits under Stafford Act § 312. On second appeal, the Applicant argues that FEMA’s denial is erroneous because: (1) FEMA misinterprets the source of funding for BA-143; (2) the Applicant is legally responsible for repairs to the Caminada Headland; and (3) the Caminada Headland is an eligible “facility.”
Authorities and Second Appeals
- Stafford Act §§ 102(9)(C), 312(a),(c), 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, 29, 33, 41.
- DAP9580.8, Eligible Sand Replacement on Public Beaches (Oct. 1, 2009).
- FEMA Second Appeal Analysis, Louisiana Department of Natural Resources Isles Dernieres Restoration Projects, FEMA-1437-DR-LA (Jan. 25, 2005)
- 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, as a whole, do not qualify as a “system” because they were not “built or manufactured.”
- 44 C.F.R. § 206.201(c) requires natural feature to be improved and maintained to be eligible.
- The Caminada Headland is not a “facility” because it was not improved.
- Stafford Act Section 312 prohibits applicants from receiving duplicate financial assistance and makes applicants liable for benefits available from another source
- The Applicant did not provide documentation to differentiate between sand required to complete BA-143, which was funded by NFWF, and sand requested as a result of Hurricane Isaac.