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Second Appeal Brief
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1569; 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 BA-20, BA-23, and BA-03c 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 navigational warning sign at BA-20, 35 wooden water control blocks at BA-23, and 20 navigational buoys at BA-03c. FEMA prepared Project Worksheet 1569 to document the work, finding the work at BA-20, BA-23, and BA-03c ineligible due to the work being the responsibility of another federal agency. In addition, the work at BA-20 and BA-23 was deemed ineligible due to a lack of a regular maintenance plan. FEMA wrote PW 1569 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) BA-20 and BA-23 have established maintenance plans and budgets providing for regular inspection and maintenance. The FEMA Region VI Regional Administrator denied the first appeal finding that BA-20, BA-23, and BA-03c were federally funded by the Natural Resources Conservation Service (NRCS) under the CWPPRA and remain under NRCS authority for the 20 year life of the projects. 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 agreements between the Applicant and NRCS create a duplication of benefits.