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Second Appeal Brief
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1570; Legal Responsibility – Other Federal Agency – Duplication of Benefits
Conclusion: Funding is precluded because another Federal program is specifically charged with the restoration of these islands. 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 two threaded sluice gate stems, which are part of the Applicant’s BS-03a Caernarvon Outfall Management Structure No. 25. FEMA prepared Project Worksheet 1570 to document the work, finding the work ineligible due to a lack of a regular maintenance plan and because it 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 Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA) 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; and (3) BS-03a has an established maintenance plan and budget providing for regular inspection and maintenance. The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) BS-03a was federally funded by the NRCS under the CWPPRA and remains under NRCS authority for the 20 year life of the project and (2) the Operation, Maintenance and Rehabilitation plan demonstrated that BS-03a was maintained. The RA also clarified that Section 312(a) of the Stafford Act, rather than Section 312(b)(1), is the relevant authority applicable to duplication of benefits. On second appeal, the Applicant argues that FEMA’s denial is erroneous because there is no other federal agency responsible for funding these disaster-related repairs.
Authorities and Second Appeals
- Stafford Act § 312(a).
- 16 U.S.C. § 3951-3956.
- 44 C.F.R. §§ 206.201(c), (j), 206.226(a), (j).
- PA Guide, at 22, 29, 33.
- FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1792-DR-LA, PW 1545 (Nov. 26, 2012).
- FEMA Second Appeal Analysis, Office of Coastal Protection and Restoration, FEMA-4080-DR-LA, at 8-9 (Dec. 23, 2016).
- FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1607-DR-LA, PW 4576, at 2 (Mar. 12, 2012)
- 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.
- Stafford Act Section 312 specifically prohibits applicants from receiving duplicate financial assistance.
- The cost share agreement between the Applicant and NRCS creates a potential duplication of benefits.