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Beach Renourishment

Appeal Brief Appeal Letter

Appeal Brief

Disaster1806-DR-FL
ApplicantGulf County
Appeal TypeSecond
PA ID#045-99045-00
PW ID#14
Date Signed2013-10-17T00:00:00

Citation:  FEMA-1806-DR-FL, Gulf County, Beach Renourishment, Project Worksheet (PW) 14

Cross-Reference:  Coastal Barrier Resources Act

Summary:  High wind and surf associated with Hurricane Gustav damaged approximately four miles of shoreline within the County-maintained, engineered portion of St. Joseph Peninsula Beach.  The shoreline was eroded and there was also damage to existing sand fencing and sea oat plants.  Erosion caused the surf to encroach on improved property.  The Applicant was in the process of restoring the beach at the time of the disaster.  FEMA prepared PW 14 to document the damages and scope of work required to restore the beach to its maintained, pre-disaster profile.  Because the Applicant’s beach renourishment project is located in the Coastal Barrier Resources System (CBRS), FEMA consulted with United States Fish and Wildlife Service (USFWS) to determine whether the project was consistent with the purposes of the Coastal Barrier Resources Act (CBRA).  USFWS determined that the project was not consistent with the purposes of CBRA, and FEMA deobligated all funding from PW 14, totaling $15,113,160.  The Applicant submitted its first appeal, dated May 6, 2012, arguing that the USFWS determination was erroneous.  FEMA denied the appeal on the basis that the Applicant had not submitted information to demonstrate that the project met any CBRA exceptions.

The State forwarded the Applicant’s second appeal in a letter dated November 2, 2011. The Applicant and the State reiterated their arguments from the first appeal and request full funding.

Issue:  Has the Applicant demonstrated that its beach renourishment project is consistent with the purposes of CBRA, or qualifies as an exception to CBRA?

Finding: No. 

Rationale: 44 CFR Part 206 Subpart J—Coastal Barrier Resources Act.

Appeal Letter

October 17, 2013

Bryan W. Koon
Director
State of Florida Division of Emergency Management
2555 Shumard Oaks Boulevard
Tallahassee, FL  32399-2100

Re:  Second Appeal–Gulf County, PA ID 045-99045-00, Beach Renourishment, FEMA-1806-DR-FL, Project Worksheet (PW) 14

Dear Mr. Koon:

This letter is in response to a letter from your office, dated November 2, 2011, which transmitted the referenced second appeal on behalf of Gulf County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $15,113,160 for costs associated with beach renourishment.

Background

High wind and surf associated with Hurricane Gustav damaged approximately four miles of shoreline within the County-maintained, engineered portion of St. Joseph Peninsula Beach.  Erosion removed an estimated 23.13 cubic yards (CY) of sand per linear foot of shoreline within this area, and there was also damage to existing sand fencing and sea oat plants.  FEMA prepared PW 14 to document the damage and scope of work required to restore the beach to its maintained, pre-disaster design. 

This portion of the shoreline is located within the Coastal Barrier Resources System (CBRS) and is subject to the provisions of the Coastal Barrier Resources Act (CBRA).  To be eligible for Federal disaster relief, projects located within the CBRS must be consistent with the purposes of CBRA, as set forth in 44 CFR §206.341, Policy, to:  “minimize the loss of human life, the wasteful expenditure of Federal revenues, and the damage to fish, wildlife and other natural resources associated with coastal barriers.”  The Applicant submitted an engineering study that determined the beach could be restored with minimal adverse impact on the natural ecosystem of the beach, and FEMA initially determined that the project met the criteria for a CBRA exception as a “Special Purpose Facility” under 44 CFR §206.347(c)(4). 

Pursuant to 44 CFR §206.348, Consultation, FEMA consulted with United States Fish and Wildlife Service (USFWS), as the representative for the Department of the Interior (DOI), for a determination that the project was consistent with the purposes of CBRA.  USFWS evaluated the Applicant’s project for beach nourishment and dune installation, and determined that it was not consistent with the purpose of CBRA to minimize damage to fish, wildlife, and other natural resources.  Specifically, USFWS determined that beach nourishment is likely to result in adverse effects to the federally threatened piping plover, and long-term, large-scale beach stabilization projects conflict with the protection or persistence of important natural land forms, processes, and wildlife resources.  USFWS also stated that such stabilization projects have the indirect effects of increases in residential development, infrastructure, and public recreational uses.  USFWS issued findings of non-concurrence with FEMA’s initial determination on May 27, 2009, and November 6, 2009.   

As a result of the findings of USFWS, FEMA subsequently determined that the beach restoration work was not consistent with the purposes of CBRA, and deobligated all funds for the project, in the amount of $15,113,160.

First Appeal

The Applicant submitted its first appeal on May 6, 2010, arguing that the USFWS decision was based on erroneous information that misrepresented the Applicant’s project.  With regard to the issue of the project increasing development, the Applicant argued that it has historically limited the density and intensity of residential development on its own.  The Applicant argued that if FEMA were to fund the project, it may be more of a deterrent to development, because if property owners were expected to fund the project without assistance, it might lead to increasing the tax revenue base in order to reduce the tax burden (through development).  The Applicant also argued that it is important to understand the distinction between beach restoration projects necessitated by long term natural erosion, and those due to catastrophic hurricane damage.  The Applicant stated that the latter causes instantaneous changes to the localized environment, and it is the Applicant’s responsibility to make the system “whole again” by restoring it to pre-disaster conditions.  The Applicant argued that its beach renourishment enhances the habitat of the species that CBRA is designed to protect.  The Applicant additionally stated that renourishment will not increase density or growth, but would preserve the properties that already exist.

The State forwarded the first appeal in a letter dated July 6, 2010, supporting the Applicant’s appeal.  FEMA denied the first appeal on June 16, 2011, stating that according to information received from the Applicant and the results of FEMA’s consultation with USFWS, the Applicant had not provided documentation to demonstrate that the work met any of the exception standards.

Second Appeal

In the Applicant’s second appeal, as to the issue of encouraging increased development, the Applicant reiterated its argument that the development density is regulated by the State of Florida, and that amending this to allow increased development would be a difficult legal process.  Therefore, the Applicant argued that beach renourishment is unlikely to have the effect of increasing development.  The State forwarded the second appeal on November 2, 2011, arguing that FEMA has the authority to set aside the determination from USFWS if FEMA determines that the work is consistent with CBRA.  The State also argued that as of the date of its transmittal memo, the work had been completed for three years, and it was possible to evaluate the actual effect on development.  According to the State, building development rates at that time (approximately 1 percent per year) still had not returned to pre-Gustav levels (3 to 5 percent per year).

Discussion

In accordance with 44 CFR §206.344, Limitations on Federal expenditures, FEMA may not provide funding for units within the CBRS “except as provided in (44 CFR) §§ 206.345 and 206.346.”  As set forth in 44 CFR §206.344(c), this limitation applies to projects designed to “prevent the erosion of, or to otherwise stabilize, any inlet, shoreline, or inshore area, except…in cases where an emergency threatens life, land, and property immediately adjacent to that unit.”  Exceptions to the aforementioned provisions listed at 44 CFR §206.345(b)(6) state that “after consultation with the Secretary of the Interior, the Regional Administrator may make disaster assistance available within the CBRS for the following types of actions, provided such assistance is consistent with the purposes of CBRA…for repair of nonstructural projects for shoreline stabilization that are designed to mimic, enhance, or restore natural stabilization systems.”  As stated above, the purposes of CBRA are to “minimize the loss of human life, the wasteful expenditure of Federal revenues, and the damage to fish, wildlife and other natural resources associated with coastal barriers.”

USFWS conducted multiple analyses of the project and issued three determinations that it was not consistent with the purposes of CBRA, nor did it meet the standards for any exception to CBRA.  In its final determination, dated January 4, 2013, USFWS addressed each purpose of CBRA in support of its position.  First, USFWS did not find that this project minimizes the damage to fish, wildlife, and other natural resources associated with the coastal barrier.  USFWS stated that though some benefits may exist from the project for some species, the liabilities of the action, both short-term and long-term, toward species and species-habitat outweigh the benefits.  USFWS further stated that repeated nourishment is likely to yield eventual long-term negative impacts to the natural environment.

Second, USFWS did not find that this project, which sustained significant damage from Hurricane Gustav in 2008 before it was completed and was eroded further by subsequent storms, minimizes the wasteful expenditure of federal revenues.  USFWS cited its November 6, 2009, letter which stated that Cape San Blas and St. Joseph Peninsula are recognized as having extremely high erosion rates.  USFWS stated that maintaining the current beach conditions on the peninsula is likely to require frequent, if not regular, beach nourishment at significant additional financial expense to attempt to sustain a steady-state ecosystem.

Finally, USFWS did not find that this project minimizes the loss of human life.  According to USFWS, “The project’s stated purpose, as described in the joint application for a Florida Department of Environmental Protection coastal permit and Clean Water Act Section 404 permit, is to mitigate for erosion occurring along the St. Joseph Peninsula, provide an increased measure of storm protection for the existing upland structures and the portion of SR-30E north of Stump Hole, enhance and maintain recreation and sea turtle habitat.  As such, the project supports existing developments and may also encourage further development within Unit P30.”  For these reasons, USFWS’s position that the St. Joseph Peninsula beach renourishment and dune installation project is not consistent with the three stated purposes of CBRA remains unchanged.

Conclusion

I have reviewed the information submitted with this appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Major P. May
      Regional Administrator
      FEMA Region IV

 

Last updated May 28, 2020