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Second Appeal Brief
PA ID# 087-99087-00; St. Bernard Parish
PW ID# (PW) 1560 ; Waterway Debris Removal, Direct Result of the Disaster, Immediate Threat
Conclusion: St. Bernard Parish (Applicant) has not demonstrated that it had legal responsibility for the work, that the debris was a direct result of Isaac, or that removal was in the public interest.
During an incident period from August 28, 2012 to September 10, 2012, Hurricane Isaac impacted the State of Louisiana. The Applicant requested Public Assistance (PA) for costs associated with removal of debris from costal waterways. FEMA documented the costs in Project Worksheet (PW) 1560 and on December 24, 2013, obligated $23,820.60, but determined other costs claimed by the Applicant were not eligible because the Applicant had not: notified FEMA of additional debris within the 60 day deadline, established it was legally responsible for the removal work, or provided waterway maintenance records. Additionally, FEMA reviewed pre-Isaac aerial imagery and found the claimed debris was present before Isaac. The Applicant appealed and argued a lack of maintenance records was not dispositive to eligibility, and it had legal responsibility for the waterways based on state law. It further asserted Isaac had repositioned debris, which caused an immediate threat. The FEMA Region VI Regional Administrator (RA) denied the appeal, determining the Applicant had provided no documentation establishing legal responsibility for the work. Additionally, the RA concluded the majority of the debris was ineligible because it existed prior to the disaster—and also noted that while some of the debris resulted from Isaac, there was no evidence it posed an immediate threat. The RA determined the Applicant had not provided maintenance records, and as such, the waterways were not a maintained natural feature and therefore not eligible. The Applicant filed a second appeal, arguing that Isaac repositioned pre-existing debris, which then created an immediate threat. It also asserts maintenance records are not required to establish eligibility for emergency work.
Authorities and Second Appeals
Stafford Act §§ 403(a)(3)(A), 407(a), 502(a)(5).
44 C.F.R. §§ 206.206(a), 206.223(a)(1), 206.223(a)(3), 206.224(a).
RP9523.5, at 2, 4, 5, 7.
PA Guide, at 66-68.
La. Rev. Stat. §34:843.
Under governing Louisiana Law, R.S. § 34:843, the Applicant’s legal responsibility for debris removal in waterways rests with the owner, unless an immediate threat is established.
As outlined in 44 C.F.R. § 206.223(a)(1), an item of work must be required as a result of the emergency or major disaster event to be eligible for funding. FEMA policy RP9523.5 further clarifies that waterway debris must be the direct result of the disaster.
Pursuant to 44 C.F.R. § 206.224(a) and RP9523.5, at 4, an applicant must demonstrate debris removal is in the public interest by showing it eliminates immediate threats to public health and safety or improved property, or ensures economic recovery of the community.