Appeals, Other Federal Agency, Duplication of Benefits, EHP & Other Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Collier County
Appeal Type	Second
PA ID#	021-99021-00
PW ID#	GMP 42430, PW 7373
Date Signed	2022-12-21T17:00:00

Summary Paragraph

From September 4 to October 18, 2017, Hurricane Irma caused damage in Florida.  Collier County (Applicant) utilized contract labor to remove debris throughout its waterways.  On November 16, 2020, FEMA issued a Determination Memorandum (DM), denying $470,133.60, stating that it cannot duplicate funds provided by another federal agency.  FEMA explained that debris removal from the Palm River and Port Au Prince Canal was the legal responsibility of the Natural Resources Conservation Service (NRCS).  On February 2, 2021, the Florida Division of Emergency Management (Recipient) transmitted a first appeal from the Applicant, stating that the debris removal was its responsibility.  On February 19, 2021, FEMA issued a second DM, denying $309.12 for the cost of transporting debris to the Wiggins debris management site (DMS), which FEMA determined to be in a wetland.  On April 20, 2021, the Recipient transmitted a first appeal from the Applicant, providing the coordinates for, and environmental permit authorizing, the Wiggins DMS.  On May 23, 2022, the FEMA Region IV Regional Administrator denied the appeals in one response, finding that the Applicant’s appeals did not comply with the format and content requirements of 44 C.F.R. § 206.206.  On July 22, 2022, the Applicant submitted a second appeal, reiterating prior arguments.

Authorities and Second Appeals

• Stafford Act §§ 312, 403, 407, 423(a).
• 44 C.F.R. § 206.206(a), 206.224(a).
• PAPPG, at 41, 52-53, 133, 169.
• EO 11990, Protection of Wetlands.
• FEMA Policy: Public Assistance Appeals and Arbitration, at 2, n.5.

Headnotes

• Applicants must file an appeal in writing through the recipient.  For disasters predating January 1, 2022, applicants and recipients are encouraged to use the Grants Portal system to submit appeals. 
  • The Applicant submitted appeals electronically through the Recipient’s Public Assistance (PA) platform.
• FEMA is prohibited from duplicating funding from other sources. 
  • Since the NRCS did not provide funding for the Applicant’s June 20, 2018 debris removal from the Palm River, then PA funding would not constitute a duplication of benefits.  However, the Applicant’s debris removal from Port Au Prince Canal occurred during the NRCS project period, and the Applicant has not provided documentation verifying NRCS did not provide assistance for the work, so PA is ineligible as a duplication of benefits.
• EO 11990 requires Federal agencies to minimize or avoid activity that adversely affects wetlands and to encourage the preservation and enhancement of the beneficial functions of wetlands. 
  • FEMA verified that the Wiggins DMS is not located in a wetland, so costs associated with transporting debris are eligible.

Conclusion

FEMA finds that the Applicant removed debris from the Palm River prior to the start of the NRCS grant, so $63,184.20 is eligible since it does not duplicate funds received by another Federal agency.  However, $406,949.40 for debris removal from the Port Au Prince Canal is ineligible as the Applicant has not verified NRCS did not provide assistance for that work, which occurred during the time that the NRCS grant was in effect for that site.  Finally, the Applicant has demonstrated that the Wiggins DMS was not located in a wetland, so $309.12 for the cost of transporting debris is eligible.  This appeal is partially granted.

Appeal Letter

Appeal Analysis

Background

From September 4 to October 18, 2017, Hurricane Irma caused damage in Florida.  Collier County (Applicant) performed debris removal operations throughout multiple waterways, including the reduction/chipping of debris.  FEMA prepared Grants Manager Project 42430 and Project Worksheet (PW) 7373 to document the project.  The PW notes that the Applicant also performed work under a grant from the Natural Resources Conservation Service (NRCS) separate from this project, but “per the Applicant, no sites or work duplicate any NRCS-funded work.”[1]

On November 16, 2020, FEMA issued a Determination Memorandum (DM), partially approving Public Assistance (PA) in the amount of $7,502,231.88; however, FEMA denied $470,133.60,[2] stating that FEMA cannot duplicate funds provided by another federal agency, NRCS.  FEMA explained that debris removal from the Palm River and Port Au Prince Canal was the legal responsibility of the NRCS, so it was not eligible for PA.  FEMA cited to minutes from an October 15, 2020 meeting attended by FEMA and the Applicant, stating that locations funded by the NRCS include Port Au Prince Canal and the Palm River.[3] 

On February 19, 2021, FEMA issued a second DM, denying an additional $309.12 for the cost of transporting debris to the Wiggins debris management site (DMS), which FEMA determined to be in a wetland.  FEMA explained that although the Applicant obtained a permit from Florida to use that site, it was non-compliant with Federal Executive Order (EO) 11990, which requires FEMA ensure that an applicant’s debris removal operations avoid impacts to floodplains and wetlands.

First Appeal of the November 16, 2020 DM

On February 2, 2021, the Florida Division of Emergency Management (Recipient) transmitted a first appeal from the Applicant, recommending its approval.  The Recipient submitted a screenshot of the Applicant’s first appeal submitted through the Recipient’s Grants Management website (FloridaPA.org), in which the Applicant stated that debris removal from the Palm River and Port Au Prince Canal was its responsibility, that the work was completed and paid for by Applicant funds, and that the Applicant was not reimbursed by any other agency.

On April 1, 2021, FEMA sent the Recipient and the Applicant a Request for Information (RFI), requesting documentation to substantiate that the Palm River and Port Au Prince Canal were not under the authority of the NRCS, that the Applicant had legal responsibility for the debris removal, as well as a copy of the Applicant’s written appeal that complied with the requirements of Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206.

On April 27, 2021, the Applicant replied, reiterating that it had legal responsibility for the work, that it was paid for by local funds, and the Applicant had not been reimbursed by another agency.  The Applicant stated that it had notified all other potential interested agencies, including the Florida Department of Environmental Protection (FDEP), prior to any debris removal from the Palm River and Port Au Prince Canal.  The Applicant added that it had performed maintenance there in the past as part of its stormwater drainage/conveyance system, and determined that if the situation was left unresolved it would have posed a risk to public health and safety.  On
April 28, 2021, the Recipient transmitted the Applicant’s response to FEMA, asserting that the Applicant’s first appeal submission constituted a proper appeal in accordance with 44 C.F.R.

§ 206.206(a).

First Appeal of the February 19, 2021 DM

On April 20, 2021, the Recipient transmitted a first appeal from the Applicant, recommending its approval.  The Recipient submitted a February 22, 2021 email from the Applicant, as well as a screenshot of the Applicant’s first appeal from FloridaPA.org.  The Applicant provided coordinates for the Wiggins DMS, a load ticket from September 24, 2017, an itemized invoice report for $309.12, and an FDEP permit authorizing the Wiggins DMS.  The Recipient added that FDEP was notified when the site was opened and closed, and performed a final inspection, finding that all debris had been removed and that no pollutants were released.

On April 27, 2021, FEMA emailed the Recipient, requesting that the Applicant provide a written appeal pursuant to 44 C.F.R. 206.206(a).  Neither the Applicant nor the Recipient responded.  On June 1, 2021, FEMA sent the Recipient and the Applicant an RFI, requesting documentation that the Applicant requested and received a permit from the United States Army Corps of Engineers (USACE) to perform work in a wetland.  On June 2, 2021, the Applicant replied, stating that the USACE permit was not required because the Wiggins DMS was not located in a wetland.  On June 29, 2021, the Applicant provided the address and coordinates for the Wiggins DMS, located at 1425 Wiggins Pass Road.

On May 23, 2022, the FEMA Region IV Regional Administrator denied both appeals in one response letter, finding that the Applicant’s appeals did not comply with the format and content requirements of 44 C.F.R. § 206.206(a).  FEMA explained that the Applicant did not submit its appeals in writing and did not state the specific laws, regulations, or policy with which the Applicant believed FEMA’s actions were inconsistent, nor did it contain any documentation to substantiate its appeal.

Second Appeal

On July 22, 2022, the Applicant submitted a second appeal, reiterating prior arguments regarding work in the Palm River and Port Au Prince Canal and requesting previously denied costs that include the work at those locations as well as Wiggins DMS.  The Recipient transmitted the appeal to FEMA, recommending its approval.

Discussion

Appeals

The Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act provides that any decision regarding eligibility may be appealed within 60 days after the date on which the applicant is notified of the denial of assistance.[4]  44 C.F.R. § 206.206(a) requires that an applicant make its appeal in writing, through the recipient, who then reviews and evaluates all applicant-related appeals before submission to the Regional Administrator.[5]  The appeal must contain documented justification supporting the appellant’s position, specifying the monetary amount in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.[6]

FEMA previously denied the Applicant’s first appeals because they did not comply with format and content requirements.  However, the Applicant submitted written first appeals through the Recipient via its electronic PA platform, FloridaPA.org, similar to how applicants and recipients are encouraged to submit appeals through FEMA’s electronic PA platform, Grants Portal.[7]  Further, the Applicant and the Recipient provided justification for the appeals, stating that the debris removal was its legal responsibility, paid for by local funds, and there was no duplication of benefits, providing the corrected coordinates and environmental permit for the Wiggins DMS, and specifying the amount in dispute.  Therefore, the Applicant’s appeals met FEMA’s requirements for format and content.

Other Federal Agency/Duplication of Benefits

FEMA may provide PA to a local government for the cost of removing debris resulting from a major disaster from publicly and privately owned lands or waters.^[8]  Debris deposited by the incident may obstruct a natural waterway (that is, a waterway that is not improved or maintained) or a constructed channel, including flood control works.[9]  In these cases, removal of the debris from the channel is eligible if the debris poses an immediate threat.[10]  Removal of the obstruction is eligible even in streams where debris removal would also be eligible under the NRCS Emergency Watershed Protection Program unless NRCS provides assistance for the debris removal.[11]  FEMA is prohibited from duplicating funding from other sources.[12]  If the Applicant receives funds from another Federal agency for the same purpose as PA funding, it is a duplication of benefits.[13]  FEMA cannot duplicate funds provided by another Federal agency.[14]  If the applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[15]

Here, FEMA provided PA funding for the Applicant’s waterway debris removal.  The NRCS also provided federal funding for this work, including for work in the Palm River[16] and Port Au Prince Canal.[17]  The NRCS grant covered work performed during the period of July 2, 2018, to April 8, 2019,[18] and stipulates that the NRCS does not reimburse costs incurred prior to the signing of the agreement.[19]

The Applicant requested that FEMA reimburse costs for debris removal from the Palm River performed on June 20 and June 21, 2018,[20] which was before the NRCS award took effect.  Since the NRCS did not reimburse costs incurred prior to July 2, 2018, PA funding does not constitute a duplication of benefits and costs associated with debris removal from the Palm River are eligible.  The Applicant also requested that FEMA reimburse costs for debris removal from the Port Au Prince Canal, but this work occurred during the project period of the NRCS grant.  FEMA previously notified the Applicant through the November 16, 2020 DM that FEMA cannot duplicate funds provided by another Federal agency.  However, the Applicant has not provided documentation verifying NRCS did not provide assistance for the work at the Port Au Prince Canal.  Therefore, the costs associated with the work at that site are ineligible. 

EHP and Other Compliance

EO 11990 requires Federal agencies to minimize or avoid activity that adversely affects wetlands and to encourage the preservation and enhancement of the beneficial functions of wetlands.[21]  To meet these objectives, EO 11990 requires Federal agencies to use a systematic decision-making process to evaluate the potential effects of projects in, or affecting, wetlands; document each step of the process; and involve the public in the decision-making process.[22]

FEMA originally denied funding for the cost of transporting debris to the Wiggins DMS, stating that because it was located in a mapped wetland, disposal at that location did not comply with EO 11990.  However, the Applicant provided corrected coordinates and address for the Wiggins DMS, stating that it was located in an industrial area.  A review of map images of 1425 Wiggins Pass Road is consistent with pictures in FDEP’s Wiggins closure report,[23] which show a large, open parking area.  Further, FEMA confirmed via the U.S. Fish & Wildlife Service’s National Wetlands Inventory that that location is not located in a wetland.[24]  Therefore, costs associated with transporting debris to the Wiggins DMS are eligible.

 

Conclusion

FEMA finds that the Applicant removed debris from the Palm River prior to the start of the NRCS grant, so $63,184.20 is eligible since it does not duplicate funds received by another Federal agency.  However, $406,949.40 for debris removal from the Port Au Prince Canal is ineligible as the Applicant has not verified NRCS did not provide assistance for that work, which occurred during the time that the NRCS grant was in effect for that site.  Finally, the Applicant has demonstrated that the Wiggins DMS was not located in a wetland, so $309.12 for the cost of transporting debris is eligible.  This appeal is partially granted.

 

[1] Project Worksheet 7373, Collier County, Version 0 (Aug. 28, 2019).

[2] FEMA Eligibility Determination Memorandum, Collier County, FEMA-4337-DR-FL, at 7 (Nov. 16, 2020).  FEMA referred to invoice numbers COL062918-14 and COL062918-37, stating that they included debris removal from the Palm River and Port Au Prince Canal.

[3] See Email from Program Delivery Manager, FEMA, to Representative, Collier Cty., et al, at 1 (Oct. 15, 2020, 1549 EST), stating “Additional information to verify and validate costs - Verified the locations funded by NRCS are Port Au Prince, Henderson Creek, Haldeman Creek, Palm River, Cocohatchee River, GulfHarbor, Rock Creek, Gordon River North, and Golden Gate Canals.”.

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 423(a), Title 42, United States Code (U.S.C) 5189a(a) (2012).

[5] Title 44, Code of Federal Regulations (C.F.R) § 206.206(a) (2016).

[6] Id.

[7] See FEMA Policy 104-22-0001, FEMA Policy: Public Assistance Appeals and Arbitration, at 2, n.5 (Feb. 24, 2022).  

[8] Stafford Act §§ 403(a)(3)(A) and 407(a), 42 U.S.C. §§ 5170b(a)(3)(A) and 5173(a); 44 C.F.R. § 206.224(a).

[9] Public Assistance Program and Policy Guide, FP 104-009-2, at 52 (Apr. 2018) [hereinafter PAPPG].

[10] Id. at 53.

[11] Id.

[12] Stafford Act § 312(a), 42 U.S.C. § 5155(a).

[13] PAPPG, at 41.

[14] Id.

[15] Id. at 133. 

[16] See PW 7373, at 10-11 (Version 0), stating: “The following is a Summary of the work and locations outlined in the above attachments for NRCS work:… To remove debris and vegetation from approximately 1.1 miles between Cypress Way East and the Cocohatchee River in Palm River Class III Waters, Section 23, Township 48 South, Range 25 East and from approximately 1.3 miles between Immokalee Road and US Highway 41 in Cocohatchee River, Class III Waters, Sections 22 and 23, Township 48 South, Range 25 East, Collier County.  (Palm River and Cocohatchee River in North Naples, 2.75 mile length measuring from average widths of 40 feet channel along the freshwater portion of Palm River to 75 feet along the tidal portions of both Palm River and Cocohatchee River; natural depth of the channels is intended to be restored to average 8 feet; estimated 5,000 CY of debris).”

[17] Id. at 9-10, stating: “The following is a Summary of the work and locations outlined in the above attachments for NRCS work:… Waters, in the Port au Prince area, Sections 15, Township 51 South, Range 26 East, Collier County. (Port au Prince canals, 1.6 mile length measuring from average widths of 40 to 60 feet; natural depth of the channels is planned to be restored up to 8 feet in certain segments; estimated 2,000 CY of debris).”

[18] Notice of Grant and Agreement Award, NRCS-ADS-093, at 1 (July 2, 2018) [hereinafter NRCS Grant)].  See also Notice of Grant and Agreement Award, NRCS-ADS-093 (Amendment 0001), at 1 (Jan. 29, 2019), which extended the project period to April 8, 2019.

[19] NRCS Grant, at 5.  “Any costs… incurred prior to the Sponsor and NRCS signing this agreement are ineligible and will not be reimbursed.”

[20] See invoice number COL062918-14, at 6 for three entries totaling 169.85 cubic yards (CY) of debris removed on June 20 and 21, 2018.  See also Spreadsheet, NRCS Work Locations - No Duplication of Benefit, GMP 42430, which consolidates the work into one entry for 170 CY on June 20, 2018.  Either date was before the NRCS grant award.

[21] PAPPG, at 169.

[22] Id.

[23] See FDEP Environmental Inspection Checklist (Apr. 25, 2018).

[24] U.S. Fish & Wildlife Service, National Wetlands Inventory, https://fwsprimary.wim.usgs.gov/wetlands/apps/wetlands-mapper/ (last visited Dec. 6, 2022).