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Second Appeal Brief
PA ID# PA ID 000-UTFMG-00; Office of Coastal Protection and Restoration
PW ID# 1566; 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 PO-24 and there is a duplication of benefits. Additionally, the other costs associated with PO-01 are under the minimum project threshold.
Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 damaged a gate stem cover at the Applicant’s Hopedale Hydrological Restoration Water Control Structure (PO-24) and a chain link fence that surrounds the Applicant’s Violet Siphon Freshwater Diversion Structure (PO-01). FEMA prepared Project Worksheet 1566 to document the work, finding the work at PO-24 ineligible due to a lack of a regular maintenance plan and the work being the responsibility of another federal agency. FEMA wrote PW 1566 for zero dollars since repair costs at PO-01 were less than the $1,000.00 minimum PW threshold. 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) PO-24 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) PO-24 was federally funded by the National Marine Fisheries Service (NMFS) under the CWPPRA and remains under NMFS authority for the 20 year life of the project and (2) the Applicant’s estimated repair costs for PO-01 are less than the minimum PW threshold, and are therefore ineligible. 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 and though NMFS funded the repairs for PO-24 on a discretionary basis, it did so with the understanding that the O&M budget would be reimbursed by FEMA.
Authorities and Second Appeals
- Stafford Act § 312(a).
- 16 U.S.C. § 3951-3956.
- 44 C.F.R. §§ 206.201(c), (j), 206.202(d)(2), 206.226(a), (j).
- PA Guide, at 41, 98.
- 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.
- Stafford Act Section 312 specifically prohibits applicants from receiving duplicate financial assistance.
- The cost share agreement between the Applicant and NMFS creates a duplication of benefits.
- 44 C.F.R. § 206.202(d)(2) states that when the estimated cost of work on a project is less than $1,000.00, that work is not eligible and FEMA will not approve a project worksheet for the project.