Waterway Debris Removal, Direct Result of the Disaster, Immediate Threat

Appeal Brief

• 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.
   

• Pursuant to 44 C.F.R. § 206.223(a)(3), an item of work must be the legal responsibility of an eligible applicant.

• 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.
  • Debris repositioned by Isaac is not the direct result of this disaster as the debris’ presence stemmed from other events.
• 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.
  • The Applicant did not demonstrate debris removal caused an immediate threat or was necessary to ensure economic recovery.

Appeal Letter

Appeal Analysis

Background

During an incident period from August 28, 2012 to September 10, 2012, Hurricane Isaac (Isaac) impacted the State of Louisiana.  St. Bernard Parish (Applicant) requested Public Assistance (PA) funding for costs associated with debris removal from its waterways.  FEMA documented the costs in Project Worksheet (PW) 1560 and on December 24, 2013, obligated $23,820.60, but determined certain debris removal costs for vessels and containers were not eligible because the Applicant had not established legal responsibility for the work or provided waterway maintenance records.  Additionally, FEMA reviewed pre-Isaac aerial imagery and found the majority of the claimed debris was present before Isaac.

First Appeal

On April 11, 2014, the Applicant filed a first appeal to request $1,607,125.00 in additional funding.  It argued that its lack of maintenance records was not dispositive to eligibility.  The Applicant further asserted it had legal responsibility for the waterways based on state law and that Isaac had repositioned pre-existing debris, which caused an immediate threat.

The FEMA Regional Administrator (RA) sent a Final Request for Information on February 19, 2015, requesting additional documentation to support the appeal, and noting the administrative record would close after the issuance of the first appeal decision.[1]  The Applicant responded on March 18, 2015 but did not provide new documentation. 

On December 16, 2015, the RA denied the appeal, determining the Applicant had not provided documentation establishing it had legal responsibility for the work.  Additionally, the RA concluded the majority of the debris was ineligible because it existed prior to the disaster— and noted that while some of the debris resulted from Isaac, there was no evidence that it posed an immediate threat.  The RA also determined that because the Applicant had not provided maintenance records the waterways were not an improved and maintained natural feature, and therefore were not eligible for funding.

Second Appeal

On May 23, 2016, the Applicant filed a second appeal, requesting $1,800,000.00 in funding.  The Applicant argues all debris posed an immediate threat, but acknowledges that some debris, including Hurricane Katrina-related debris, was present in the waterways pre-Isaac.  It, however, argues that Isaac repositioned this debris to create an immediate threat.  It also asserts maintenance records are not required to establish eligibility because debris removal is emergency work, and thus the waterways are not subject to the same eligibility requirements as facility repairs.  Additionally, the Applicant argues it is legally responsible for debris removal pursuant to Louisiana Revised Statute (R.S.) §34:843.  The Grantee reiterates the Applicant’s claims and transmitted the appeal to FEMA on July 21, 2016.

Discussion

FEMA is authorized to provide funding to eligible applicants to remove debris, wreckage, and sunken vessels from publicly and privately owned waters to eliminate an immediate threat to lives, public health and safety or improved property or ensure the economic recovery of the affected community.[2]  However, as discussed below, applicants must demonstrate compliance with several other regulatory and policy requirements to receive reimbursement for such work.    

Direct Result of the Disaster

An item of work must be required as a result of the emergency or a major disaster event to be eligible for funding.[3]  FEMA policy further requires waterway debris to have resulted directly from the disaster.[4]  Additionally, any appeal of a PA determination must contain documented justification to support an applicant’s position.[5]  Accordingly, the Applicant’s appeal must demonstrate that the debris removal work is required as a direct result of Isaac.

The Applicant’s  assertion that Isaac repositioned the debris, does not meet the requirement that an item of work must be a direct result of a major disaster.  Repositioning cannot be considered a direct result because other events, including Katrina, were the underlying or initial cause of the debris.  Moreover, the Applicant’s argument is inconsistent with FEMA policy, which requires that the debris itself, not just the work, to be a direct result of the disaster.[6] 

Legal Responsibility for Debris Removal

To be eligible for funding, an item of work must be the legal responsibility of an eligible applicant.[7]  An applicant must provide documentation establishing it has legal responsibility to remove debris found in waterways.[8]  Additionally, an applicant’s legal authorities, codes, and ordinances should be germane to the condition and not merely define an applicant’s uniform level of service.[9]  For storm-damaged vessels, applicants must identify the owner, if possible, and comply with local and state law to demonstrate legal responsibility for its removal.[10]

In this instance, Louisiana Revised Statute (R.S.) §34:843 grants authority over the removal and disposition of waterway debris, including objects “of any kind or description,” to state and local governments,[11] but it specifically assigns responsibility to the owner of an object to devise a plan to remove it after receiving notice from the governing authority.[12]  The governing authority becomes legally responsible to remove the object if it is not removed after written or oral notice to the owner, or if the owner cannot be identified or located.  Additionally, the governing authority has responsibility for the removal should the object pose an immediate danger to life or property and the owner cannot be identified and located or does not remove it after receiving notice.[13]     

Accordingly, legal responsibility to remove the debris at issue initially rests with the owner.  For the Applicant to demonstrate it was legally responsible for removal, it would need to show that the owner was notified but did not remove the debris or the owner of the debris cannot be identified or located.  The Applicant, however, has not provided evidence that it contacted or attempted to contact the owners or that it requested owners provide a plan for removal.  Additionally, the Applicant has not established that it could not identify or locate the owners.  Furthermore, as discussed in detail below, the Applicant has not demonstrated the debris posed an immediate threat.  Therefore, the Applicant failed to establish legal responsibility to remove the debris as specified by state law.

Public Interest

Debris removal must be in the public interest to be eligible for funding.[14]  Debris removal is considered in the public interest when necessary to: (1) eliminate immediate threats to life, public health, and safety; or (2) eliminate immediate threats of significant damage to improved public or private property; or (3) ensure economic recovery of the affected community to the benefit of the community-at-large.[15] 

For debris removal from waterways to be eligible, applicants must provide a public interest determination to establish one of these three criteria through supporting documentation.[16]  In finding debris poses an immediate threat to life, public health and safety, the determination must be made by a state, county or municipal government’s public health authority, or other public entity that has legal authority to make such a determination, and provide the basis that disaster-generated debris in a navigable waterway in the designated area constitutes an immediate threat to life, public health, and safety.  Finally, to determine that removal is necessary for economic recovery, the basis for the determination by a state, county, or municipal government must explain that the removal of debris is necessary to ensure economic recovery that will benefit the affected community-at-large.

The Grantee asserts on the Applicant’s behalf that the “very presence” of debris was an immediate threat due to the risk of boating accidents, further arguing debris posed a contamination risk and a danger to marine life.[17]  However, the administrative record does not contain a determination in support of this assertion from a public health authority.  Moreover, the assertion relies upon a general assumption, rather than evidence within the administrative record to establish the conditions creating the immediate threat within specific navigable waterways.  The Applicant’s assertion also does not demonstrate that the debris was “disaster-generated,” which is similar to the previously discussed requirement that debris be a direct result of the disaster.  Therefore, the Applicant has not substantiated that the waterway debris posed an immediate threat to life, health or safety.  Likewise, the Applicant has not submitted a basis demonstrating that debris removal is necessary to ensure economic recovery of the affected community-at-large.

The Applicant indicates it attached to its second appeal evidence and documentation, including affidavits describing immediate threats and the economic impacts.  However, this submission was made after the issuance of the first appeal and closure of the administrative record.[18]  Therefore, it will not be considered on second appeal.  Further, as stated above, the Applicant has not demonstrated that removal of the debris in the subject waterways was in the public interest.  

Requested Maintenance Records

The Applicant correctly notes that emergency work to remove debris in waterways is subject to different eligibility requirements than facility repairs.  Based on this assertion, the Applicant argues the RA erred by denying the first appeal based on a lack of maintenance records.  However, even though the waterways are not facilities and debris removal is emergency work—FEMA is not precluded from using maintenance records as evidence establishing a waterways pre-disaster condition.  In fact, FEMA policy specifically states that applicants should provide maintenance records to demonstrate the pre-disaster condition of waterways.[19]  Accordingly, as outlined above, the Applicant failed to support its claims, through maintenance records or otherwise.        

Conclusion

The second appeal is denied because the 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.