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Second Appeal Brief
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1510; Beaches – Direct Result of the Disaster – Legal Responsibility – Other Federal Agency – 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 another Federal program is specifically charged with the restoration of these islands.
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 Office of Coastal Protection and Restoration (Applicant) was performing the design work for a beach and dune restoration project (BA-45). 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). FEMA prepared Project Worksheet 1510 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) 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 on the basis of purported 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. 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-45 is funded by the CIAP and the State, 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-45; (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) 705(c).
- 16 U.S.C. §§ 3502(6)-(7), 3951-3956.
- 43 U.S.C. § 1356a
- 44 C.F.R. §§ 206.201(c), (j), 206.226(a), (j), 206.340, 206.343(a).
- PA Guide, at 22, 29, 33.
- 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)
- FEMA Second Appeal Analysis, Ventura County, FEMA-1577-DR-CA (July 7, 2009)
- 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.
- 44 C.F.R. § 206.226(a) limits PA funding where there is another Federal authority to restore facilities.
- CWPPRA creates an ongoing Federal program to specifically address restoration of the barrier islands.