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Second Appeal Brief
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1564; Legal Responsibility – Other Federal Agency – Duplication of Benefits
Conclusion: Funding is precluded because another Federal program is specifically designated to address the maintenance and restoration of TE-44 and there is a duplication of benefits.
Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 damaged a sheet pile dike at TE-44. FEMA prepared Project Worksheet 1564 to document the work, finding it ineligible due to a lack of a regular maintenance plan and the work being the responsibility of another federal agency. FEMA wrote PW 1564 for zero dollars. 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 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; and (3) TE-44 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) TE-44 was federally funded by the U.S. Department of the Interior’s Fish and Wildlife Service (USFWS) under the CWPPRA and remains under USFWS authority for the 20 year life of the project and (2) the Operation, Maintenance and Rehabilitation Plan demonstrated that TE-44 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. § 206.226(a).
- PA Guide, at 41.
- FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1792-DR-LA, PW 1545 (Nov. 26, 2012).
- 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 and wetlands.
- Stafford Act § 312 specifically prohibits applicants from receiving duplicate financial assistance.
- The cost share agreement between the Applicant and USFWS creates a duplication of benefits.