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Second Appeal Analysis
PA ID# 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1569; Legal Responsibility – Other Federal Agency – 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 the Jonathan Davis Wetland Protection Project (BA-20), 35 wooden water control blocks at the Barataria Bay Waterway West Side Shoreline (BA-23), and 20 navigational buoys at the Naomi Outfall Management Project (BA-03c). BA-20, BA-23, and BA-03c were funded by the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) through cost share agreements with the Louisiana Department of Natural Resources to conserve, restore, create, and enhance vegetated wetlands in coastal Louisiana. The agreements were entered into pursuant to the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA). State responsibilities for BA-20, BA-23, and BA-03c were transferred from the Office of Coastal Restoration and Management within the Louisiana Department of Natural Resources to the Coastal Protection and Restoration Authority (Applicant) in 2009.
FEMA prepared Project Worksheet (PW) 1569 to document repair of the navigational warning sign for $1,500.00, repair of the 35 wooden water control blocks for $490.00, and repositioning of 20 navigational buoys for $1,500.00. FEMA found the work to be ineligible because it was the responsibility of another federal agency and both BA-20 and BA-23 lacked regular maintenance plans. FEMA wrote PW 1569 for zero dollars.
The Applicant appealed FEMA’s determination on October 18, 2013. The Applicant argued that: (1) the work is eligible because there is no specific authority under the 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 State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on December 17, 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 NRCS funding for BA-20, BA-23, and BA-03c does not prohibit FEMA from providing funding.
On December 16, 2014, FEMA sent a Final Request for Information (RFI) to the Grantee. The Agency requested a copy of the Operation, Maintenance, and Rehabilitation Plan for BA-03c and documentation that another Federal agency does not have funding authority for BA-20, BA-23, and BA-03c. In its response to the Final RFI, the Applicant indicated it had submitted all required documentation.
The FEMA Region VI Regional Administrator (RA) denied the first appeal on December 3, 2015. The RA found that BA-20, BA-23, and BA-03c were federally funded by the NRCS under the CWPPRA and remain under NRCS authority for the 20 year life of the projects and that the Operation, Maintenance and Rehabilitation plans demonstrated that BA-20 and BA-23 were 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.
The Applicant submitted its second appeal by letter dated January 20, 2016. The Applicant argues that FEMA’s denial is erroneous because there is no other federal agency responsible for funding these disaster-related repairs.
The Grantee transmitted the second appeal to FEMA Region VI on March 16, 2016 and supplemented the Applicant’s argument. The Grantee asserts that CWPPRA does not establish responsibility in another federal agency to assist the Applicant and therefore those costs should be eligible.
Responsibility of Other Federal Agency
The Applicant claims that FEMA’s denial of eligibility of PW 1569 was erroneous as there is no other federal agency responsible for funding the subject disaster-related repairs. The Applicant argues that the cooperative agreement between the NRCS and the Applicant does not convey specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages; NRCS, along with other CWPPRA task force members, have indicated they do not have authority; and CWPPRA does not authorize any specific federal agency to fund projects from its operating budget. Moreover, the Applicant asserts that FEMA failed to comply with its responsibility to contact other federal agencies about their authority and has previously approved work for sand fence repair, which contradicts an assertion the work is another federal agency’s responsibility.
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.” 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.” 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.” Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.
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.” 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 Applicant’s 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.
The Applicant also argues FEMA’s previous approval of work for sand fencing repair contradicts its assertion that the work is the responsibility of another federal agency. In a separate decision, FEMA determined that funding such repairs was in error.
Duplication of Benefits
Stafford Act Section 312 specifically prohibits applicants from receiving duplicate financial assistance and makes applicants liable for benefits available from another source, including contracts. The cost share agreements that cover BA-20, BA-23, and BA-03c require the Applicant to assume maintenance responsibilities for the expected life of the project, which is 20 years from 1995, 1997, and 1999, respectively. The NRCS is required to reimburse the Applicant for 85 percent of such costs for BA-20 and BA-23 and 90 percent of such costs for BA-03c, subject to the availability of funding. The NRCS and Applicant developed operation, maintenance, and rehabilitation plans, which note that the signatories are each responsible for their respective cost shares. Contrary to the Applicant’s assertion, maintenance or rehabilitation resulting from a disaster are not excluded from the plan. In fact, the plan specifically requires the Applicant and NRCS to conduct joint inspections “after major storm events” and the Applicant must submit a report to the NRCS detailing the condition of the project and recommendations, including the estimate costs, for any corrective actions. The cost sharing agreements and associated operation, maintenance, and rehabilitation plans between the Applicant and NRCS create an available source of duplicate funding to repair the damage at BA-20, BA-23, and BA-03c. The administrative record does not include any correspondence demonstrating the Applicant complied with its duty to inform NRCS of the adverse conditions caused by Hurricane Isaac and the corrective actions and estimate costs to repair the damage. The Applicant should have pursued this available funding and without contrary documentation in the administrative record, FEMA finds that the benefit was available. Moreover, FEMA is prohibited by the CWPPRA from funding the Applicant’s cost share, which must come from a non-federal source.
FEMA finds the requested funding ineligible because there is another Federal program specifically designed to address the maintenance and restoration of BA-20, BA-23, and BA-03c. Further, FEMA finds that the cost share agreements duplicate benefits available from NRCS for the repairs. Consequently, the Applicant’s second appeal is denied.
 Cost Sharing Agreement between Natural Res. Conservation Serv. and the La. Dep’t of Natural Res. for Construction, Operation, Maintenance, Rehabilitation and Monitoring of the Jonathan Davis Wetland Project (BA-20) (Jan. 5, 1995) [hereinafter BA-20 Cost Share Agreement]; Cost Sharing Agreement between Natural Res. Conservation Serv. and the La. Dep’t of Natural Res. for Construction, Operation, Maintenance, Rehabilitation and Monitoring of the Barataria Bay Waterway Shoreline Protection Project (BA-23) (June 23, 1997) [hereinafter BA-23 Cost Share Agreement]; Cost Sharing Agreement between Natural Res. Conservation Serv. and the La. Dep’t of Natural Res. for Construction, Operation, Maintenance, Rehabilitation and Monitoring of the Naomi Siphon Outfall Management Project (BA-3C) (May 12, 1999) [hereinafter BA-03c Cost Share Agreement].
 16 U.S.C. §§ 3951-3956 (2010).
 Specifically, U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS).
 Project Worksheet 1569, Office of Coastal Protection and Restoration, Version 0 (June 9, 2016).
 Letter from Counsel, Coastal Protection and Restoration Authority, to Deputy Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Oct. 18, 2013).
 Letter from State Coordinating Officer, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Reg’l Adm’r, FEMA Region VI (Dec. 17, 2013).
 Letter from Dir., Recovery Div., FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Dec. 16, 2014).
 Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Jan. 15, 2015).
 Letter from Reg’l Adm’r, FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness and Chief Finn. Off. Coastal Protection and Restoration Authority (Dec. 3, 2015).
 Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Jan. 20, 2016) [hereinafter Applicant Second Appeal Letter].
 Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, FEMA, at 2 (Mar. 16, 2016) [hereinafter Grantee Second Appeal Letter].
 Applicant Second Appeal Letter, at 3.
 FEMA acknowledges that the cooperative agreements between NRCS and the Applicant are not authorizing statutes, implementing regulations, or appropriation laws and therefore not authorities of another federal agency.
 44 C.F.R. § 206.226(a). This general prohibition originates from Section 312 of the Stafford Act, which prohibits an applicant from receiving duplicate financial assistance from another source. Though subsection 312(b) allows FEMA to provide funding if a person has not yet received benefits or has only received partial benefits from another source, this subsection also requires FEMA to establish procedures to ensure uniformity in preventing duplication of benefits, which FEMA accomplished in promulgating 44 C.F.R. § 206.226(a).
 16 U.S.C. § 3956(a).
 Letter from Dist. Counsel Chief, Dept. of the Army, Corps of Engineers, New Orleans Dist., to Counsel, Coastal Protection and Restoration Authority (June 26, 2015).
 Applicant Second Appeal Letter, at 8.
 FEMA Second Appeal Analysis, Office of Coastal Protection and Restoration, FEMA-4080-DR-LA, at 8-9 (Dec. 23, 2016). In FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1607-DR-LA, PW 4576, at 2 (Mar. 12, 2012), FEMA incorrectly limited its review of other federal agency authority to a memorandum of agreement and a cooperative agreement and did not consider the underlying legal authority, CWPPRA, when determining the eligibility of repairs to sand fencing.
 Stafford Act § 312(a). See Public Assistance Guide, FEMA 322, at 41 (June 2007) [hereinafter PA Guide] (stating “[a]n applicant may not receive funding from two sources for the same item of work”).
 City of Chicago v. FEMA, No. 08 CV 4234, 2013 U.S. Dist. LEXIS 41633, at 17-19 (N.D. Ill. Mar. 21, 2013) (holding that FEMA's determination that a contract for snow removal services constituted duplicate benefits was a reasonable interpretation of the Stafford Act).
 BA-20 Cost Share Agreement, at 10; BA-23 Cost Share Agreement, at 11; BA-03c Cost Share Agreement, at 12.
 BA-20 Cost Share Agreement, Amendment No. 1 at 2; BA-23 Cost Share Agreement, Amendment No. 1 at 2; BA-03c Cost Share Agreement, at 1.
 La. Dep’t of Natural Res., Operations, Maintenance, and Rehabilitation Plan for Jonathan Davis Wetland and Restoration Project BA-20, at 6 (Mar. 18, 2002) [hereinafter BA-20 OM&R Plan]; La. Dep’t of Natural Res., Operations, Maintenance, and Rehabilitation Plan for Barataria Bay Waterway (West) Shoreline Protection Project BA-23, at 5-6 (Mar. 18, 2002) [hereinafter BA-23 OM&R Plan]; La. Dep’t of Natural Res., Operations, Maintenance, and Rehabilitation Plan for Naomi Outfall Management Project (BA-03c), at 4 (Dec. 24, 2002) [hereinafter BA-03c OM&R Plan].
 BA-20 OM&R Plan, at 5-6; BA-23 OM&R Plan, at 5; BA-03c OM&R Plan, at 3-4.
 BA-20 OM&R Plan, at 5; BA-23 OM&R Plan, at 5; BA-03c OM&R Plan, at 4.
 See FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1792-DR-LA, PW 1545, at 3 (Nov. 26, 2012) (finding similarly that the cost share agreement between the NRCS and applicant does not exclude disaster-related repairs).
 16 U.S.C. § 3952(f)(3).