Beaches – Direct Result of the Disaster – Legal Responsibility – Other Federal Agency – Sand Replacement

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to a beach and sand dunes that were 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-45).[1]  Construction of the project occurred after the disaster and was partially funded by the Department of the Interior’s United States Fish and Wildlife Service (USFWS) under the authority of the Coastal Impact Assistance Program (CIAP).[2]  The Coastal Protection and Restoration Authority (CPRA) (Applicant) served as the designated State agency for BA-45.[3] 

FEMA prepared Project Worksheet (PW) 1510, Category G, to document replacement of approximately 354,550 cubic yards of beach and dune fill, including engineering and design services.  FEMA found $6,591,258.00 of costs claimed for beach and dune fill ineligible because: (1) funding to repair the Caminada Headland is the responsibility of another federal agency;[4] (2) the Caminada Headland is an unimproved natural feature; and (3) the Caminada Headland is privately owned.[5]

First Appeal

The Applicant appealed FEMA’s determination on August 16, 2013.  The Applicant argued that: (1) the work is eligible because there is no specific authority under the Energy Policy Act of 2005, which created the CIAP, to repair the damages in question; (2) FEMA’s denial of eligibility because of the legal authority of another federal agency is contrary to Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (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.[6] 

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on October 15, 2013.  The Grantee’s forwarding letter emphasized that the work is not the responsibility of another federal agency, stressing that FEMA has not completed its obligation to coordinate with other agencies to determine legal responsibility.  The Grantee also argued that the Caminada Headland is a maintained and improved feature, and that USFWS funding for BA-45 does not prohibit FEMA from providing funding.[7]

On March 18, 2015, FEMA sent a Final Request for Information (RFI) to the Grantee, requesting: (1) evidence of legal responsibility for the project area; (2) design, construction, and as built drawings for other beach and dune projects prior to Hurricane Isaac within the BA-45 project area; (3) a maintenance plan for BA-45 that includes funding; (4) subsequent re-nourishment projects for BA-45 with studies, plans, and drawings; (5) an explanation of how Hurricane Isaac claims differ from Hurricane Katrina claims; (6) a narrative explaining how the Applicant’s claim accounted for annual beach erosion; and (7) documentation that USFWS does not have funding authority for BA-45.[8]  In its response, the Applicant indicated it had submitted all required documentation but reserved the right to provide written confirmation that no other federal agency has responsibility for the work, which it was in the process of obtaining.[9] 

The FEMA Region VI Regional Administrator (RA) denied the first appeal on August 17, 2015.  The RA found 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-45 is funded by the CIAP, therefore FEMA funding would constitute a duplication of benefits under Stafford Act § 312.[10]

Second Appeal

The Applicant submitted its second appeal by letter dated October 23, 2015.  The Applicant argues: (1) FEMA’s denial is erroneous because it misinterprets the source of funding for BA-45; (2) the Applicant is legally responsible for repairs to the Caminada Headland; and (3) the Caminada Headland is a “facility” eligible for Public Assistance (PA).[11] 

The Grantee transmitted the second appeal to FEMA Region VI on December 21, 2015 and supplemented the Applicant’s main arguments.  The Grantee asserts that neither the Louisiana Department of Natural Resources under the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA)[12] nor the Energy Policy Act of 2005 establishes responsibility in another federal agency to assist the Applicant; and even if another federal agency had legal responsibility to provide assistance, Stafford Act § 312(b) allows FEMA to provide funding if the Applicant has not yet received benefits or has only received partial benefits from the other agency, which has not occurred in this instance.  The Grantee also argues that the Caminada Headland is a unit connected to a Coastal Barrier Resources System (CBRS) and therefore undergoes a separate and distinct eligibility analysis based solely on the consultation and consistency requirements of Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.348 and 206.349.[13]

Discussion

Facility Eligibility of Louisiana’s Coastal Barrier Resources System

The Applicant claims that FEMA’s denial of eligibility of PW 1510 is incorrect because the Caminada Headland is a facility eligible for PA.[14]  It argues that FEMA failed to recognize the Caminada Headland as part of the CBRS, a “system,” and that all of its component parts comprise an eligible “facility.”[15]

FEMA recognizes that the Caminada Headland is part of the Barataria Basin Barrier Shoreline.[16]  However, the Agency notes that only the western portion of the project area falls within S03 on the Louisiana CBRS maps, while the eastern portion falls in between S03 and S04 and is therefore not part of the Louisiana CBRS.[17] 

With regard to the portion of the Caminada Headland that falls within S03, FEMA notes that the Coastal Barrier Resources Act (CBRA) uses the term “system” to mean the barrier resource system defined in the Act,[18] which is comprised of “undeveloped” system units.[19]  However, the CBRA and its implementing regulations perform a different function than the Stafford Act, which uses the term “system” as part of a definition to establish PA eligibility for a wide range of facilities.  The Stafford Act definition of “public facility” includes “any other public building, structure, or system.”[20]  The word “system” is used in conjunction with the words “building” and “structure” to describe other types of public facilities that are man-made, such as sewage systems or electric power distribution systems.  In contrast, the CBRA defines “system unit” to mean “any undeveloped coastal barrier, or combination of closely-related undeveloped coastal barriers, included within the [CBRS].”[21]  This definition is inclusive of Louisiana’s barrier islands because, as a whole, the islands are not man-made but are naturally occurring landforms that are undeveloped and subject to constant change due to wave and tidal action.  In line with legislative intent, FEMA’s regulatory definition of “facility” excludes such undeveloped systems that are not “built or manufactured.”[22]  As Louisiana’s CBRS was not “built or manufactured,” it does not qualify as a “system.”  Moreover, that fact that portions of the Caminada Headland are excluded by the CBRS undermines the Applicant’s arguments.

The statutory and regulatory constraints that limit eligible facilities to structures, buildings, and systems that are “built or manufactured” by man, is supported by the fact that the Stafford Act bases the amount of assistance off “the design of the facility as it existed immediately before the disaster event.”[23]  FEMA regulation embodies this by requiring that permanent work restore an eligible facility on the basis of its predisaster design and applicable standards.[24]  Louisiana’s system of barrier islands lack a predisaster design because they are naturally occurring and their formations constantly change.  Louisiana’s CBRS does not have a “predisaster design” to which it can be constructed because the system as a whole was never designed in the first place.

Facility Eligibility of the Caminada Headland as a Natural Feature

The Applicant alternatively argues that the Caminada Headland is eligible for PA funding because it is an improved and maintained natural feature.[25]  Pursuant to 44 C.F.R. § 206.201, a facility is defined as “any publicly or privately owned building, works, system or equipment, built or manufactured, or an improved and maintained natural feature.”[26]  For an “improved and maintained natural feature”[27] to be eligible, the improvement must be based on a “documented design” and maintenance “must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.”[28]  The constructed improvement must result in a measurable difference in performance over the unimproved natural feature.[29]  FEMA also looks to maintenance or inspection reports to verify the pre-disaster condition of facilities and to determine if the work is required as a direct result of the disaster.[30]  Work to correct inadequacies that existed prior to the disaster is not eligible.[31]  The Caminada Headland is a barrier headland, which is a natural feature, and held to the requirement of being improved and maintained. 

The Applicant has failed to demonstrate that the Caminada Headland has been improved and regularly maintained.  The Applicant has provided no documentation demonstrating that, prior to the disaster, the Caminada Headland underwent a construction project that established a specific design for the beach and dunes that measurably improved its overall performance.  The list of sporadic projects (e.g. sinking barges, vegetative plantings, limited dune restoration, etc.), that the Applicant provided on first appeal, does not establish a comprehensive design.[32]  Rather, the Caminada Headland existed in a natural state, as evident from the severe erosion that converted much of the land into open water and allowed the barrier beach to be over washed and breached in many locations.  Even if assuming a comprehensive design once existed, the work to repair the Caminada Headland is ineligible because its deteriorated state demonstrates significant pre-existing damage, pre-existing inadequacies, and/or inadequate maintenance.  

The Applicant also argues that the Caminada Headland has been maintained through projects (past and ongoing) that have improved and maintained the “system” of barrier islands, of which it is a part.[33]  It asserts that system wide projects equate to maintenance for the Caminada Headland.  Specifically, it cites Louisiana’s 2002 Barrier Island Comprehensive Monitoring Program (BICM) to provide long-term data about the system,[34] and two bills passed by the Louisiana legislature (House Bills No. 429 and 1034) in 2004 establishing the Barrier Island Stabilization and Preservation Program, to select and prioritize maintenance projects.[35]  The Applicant’s argument is flawed and not compelling.  For instance, if one segment of a road system is maintained regularly, e.g., a bridge, while all other segments are allowed to deteriorate into disrepair, it is illogical to find that the entire road system was regularly and properly maintained.  Likewise, maintenance performed elsewhere on other barrier islands within the CBRS does not equate to maintenance on Caminada Headland, which is the facility in question.

Eligibility of the Caminada Headland as an Improved Beach

To the extent that the Applicant and Grantee request consideration of the work in accordance with FEMA regulatory[36] and policy requirements[37] for beaches, the work is not eligible for PA grant funding.  To be eligible for PA funding, an improved beach must be constructed by the placement of sand (of proper grain size) to a designed elevation, width, and slope; and the applicant must establish and adhere to a maintenance program involving periodic renourishment of sand.  The Applicant has not demonstrated that the Caminada Headland was designed to a certain elevation, width, and slope with sand of a particular grain size prior to the disaster.[38]  Additionally, as discussed in the preceding subsection, the Applicant has not shown it has a maintenance program involving periodic sand renourishment nor routine maintenance to the Caminada Headland.  Finally, the Applicant has not demonstrated the Caminada Headland was constructed according to specific requirements and maintained to those standards.  As such, it is not eligible for PA grant funding. 

Applicability of FEMA’s Regulations Implementing the CBRA

The Grantee argues that because the Caminada Headland is a unit of the CBRS, FEMA must determine eligibility for PA in accordance with the consultation and consistency requirements of 44 C.F.R. §§ 206.348 and 206.349 in lieu of FEMA’s PA eligibility requirements.[39]  The Grantee’s argument, however, is not supported by statute or regulation.  The CBRA was enacted in 1982 to prohibit new expenditures and new financial assistance, including disaster assistance, by federal agencies within the CBRS for all but a few types of activities.  FEMA promulgated 44 C.F.R. Part 206, Subpart J to establish procedures for FEMA to comply with the CBRA “in the administration of disaster assistance.”[40]  FEMA’s regulations, in accordance with the stated purpose of the CBRA, places “limitations” [41] on the provision of assistance for the permanent restoration of facilities located in the CBRS.  The CBRA does not, as suggested by the Grantee, amend or modify the Stafford Act to create a separate disaster assistance program or expand the provision of disaster assistance funding.  The fact that a portion of the Caminada Headland is a unit part of the CBRS, being numbered S03 on the Louisiana CBRS maps, and falling under the exemption listed at 206.344(c), does not alter FEMA’s PA eligibility requirements.  The language of the exemption states that “such assistance and expenditures may be made available.”[42]  FEMA exercises this authority by awarding PA funding in accordance with the criteria described in 44 C.F.R. Part 206 and applicable policies. 

With regard to 44 C.F.R. §§ 206.348 and 206.349, the consultation and consistency requirements are established by 16 U.S.C. § 3505, which applies to all federal agencies.  Those requirements are additional actions that must occur prior to a federal agency making a federal expenditure or providing financial assistance for work within the CBRS.  The statutory requirements do not establish specific disaster assistance eligibility requirements.  As FEMA did not find the work eligible for PA funding, it was not required to meet the consultation and consistency requirements.

The Applicant also argues that Congress intended the CBRA’s statutory exemption of the Caminada Headland, a portion of which is numbered S03 on the Louisiana CBRS maps,[43] to be interpreted broadly so that federal agencies provide funding for “stabilization and erosion control projects in units depicted on maps S01 through S11 so as to address the serious erosion problems facing Louisiana's coastline.”[44]  The Applicant’s interpretation of Congress’ intent ignores important context.  The exemption was established in recognition that “the coastal erosion problem is largely the result of Federal policies and actions,” such as the leveeing and channelization of the Mississippi and Atchafalaya Rivers which once renourished the marsh system.[45]  The exemption was not established to repair damage caused by natural disasters, such as hurricanes, but was focused solely on remedying the damage caused by federal “policies and actions.”[46]  Consequently, it appears Congress only intended for agencies to broadly interpret the “types of stabilization projects that may be undertaken” under the exemption.[47]  However, legislative history does not demonstrate Congressional intent for federal agencies to broadly interpret their own statutory authority to award grant funding for stabilization and erosion control projects in the Louisiana CBRS.[48] 

Lastly, the Applicant contends that the Caminada Headland falls within the CBRA exceptions, specifically 44 C.F.R. § 206.345(b)(6), and therefore does not need to meet PA eligibility requirements.  This is incorrect.  If an applicant proposes to complete work within a CBRS and the work falls within one of the exceptions, the CBRA limitations, detailed in 44 C.F.R. § 206.344, on new expenditures or financial assistance do not apply and a regional administrator “may make” disaster assistance available.  The exceptions only pertain to the CBRA limitations; not the foundations of PA eligibility.

Responsibility of Other Federal Agency

The Grantee claims that FEMA’s denial of eligibility of PW 1510 was erroneous as there is no specific authority to repair the damages in question under CWPPRA.[49]  The Grantee argues that the CWPPRA does not include authority for funding disaster damages nor does it authorize any specific federal agency to fund projects, and FEMA failed to comply with its responsibility to contact other federal agencies about their authority.[50]

PA funding is not available when “another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”[51]  While the Applicant contends that CWPPRA does not provide for restoration for disaster related damages, FEMA disagrees.

CWPPRA authorizes the Secretary of the Army to “carry out projects to protect, restore, and enhance wetlands and aquatic/coastal ecosystems.”[52]  The definition of a coastal wetlands restoration project in the CWPPRA does not specifically address disaster related repairs, rather it states simply that project activities include but are not limited to “new projects, completion or expansion of existing or on-going projects, individual phases, portions, or components of projects and operation, maintenance and rehabilitation of completed projects.”[53]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[54] 

Further, a June 26, 2015 letter from the U.S. Army Corps of Engineers (USACE) provides that “if the Federal and State sponsors of an existing CWPPRA project submit a request to restore infrastructure constructed with CWPPRA funding that was damaged or destroyed by a storm event, the Task Force has the discretion to approve or disapprove the request.”[55]  While FEMA has not consulted with the Department of the Army regarding this project, this letter reflects the discretionary authority of USACE and the Task Force, under the CWPPRA, to approve or deny project work to repair disaster related damage.  Accordingly, FEMA finds that pursuant to the plain language of CWPPRA, the responsibility for this proposed work rests with another federal agency.  The claim that CWPPRA does not include or intend to authorize projects to repair hurricane damaged structures is not supported by a reading of the plain language of the Act and PA funding is not available due to another agency’s authority.

Conclusion

FEMA finds that Louisiana’s coastal barrier islands, as a whole, do not qualify as a “system” within 44 C.F.R § 206.201(c)’s definition of a “facility” as they were not “built or manufactured” in accordance with a design.  Additionally, the Caminada Headland cannot be considered a “facility” because the Applicant failed to demonstrate that the barrier headland has been improved and maintained.  Finally, funding is also precluded by the Stafford Act and regulation because there is another Federal program specifically designed to address the environmental restoration of Louisiana’s barrier islands.  Consequently, the RA was correct in denying $6,591,258.00 in beach and dune fill replacement.