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Beaches, Direct Result of Disaster

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4097-4110
ApplicantTown of Sandwich
Appeal TypeSecond
PA ID#001-59735-00
PW ID#300 and 818
Date Signed2017-01-27T00:00:00

Conclusion:  The Town of Sandwich (Applicant) did not demonstrate that it routinely maintained Town Neck Beach or that the sand loss claimed was the direct result of the disasters.  As such, the repairs to the dune at the beach are ineligible for Public Assistance funding.

Summary Paragraph

Town Neck Beach is located in the Town of Sandwich (Applicant).  In 1990, due to increased erosion on the beach as a result of the construction of the Cape Cod Canal (Canal) and two of its jetties, the Applicant constructed a dune on the beach.  In 2004, the Applicant constructed a second dune adjacent to the original, and also renourished the first one.  In late 2012 and early 2013, Hurricane Sandy (FEMA-4097-DR-MA) and a severe winter storm (FEMA-4110-DR-MA) caused damage throughout Massachusetts.  The Applicant applied for Public Assistance (PA) funding, asserting the severe weather conditions and heavy wave and tidal action from those storms caused sand loss from the two dunes.  FEMA prepared Project Worksheet (PW) 300 to document the request associated with FEMA-4097-DR-MA, and prepared PW 818 to document the request related to FEMA-4110-DR-MA.  FEMA then determined Town Neck Beach was ineligible for PA as it did not meet the criteria of an improved natural feature, pursuant to 44 C.F.R. § 206.226(j) and FEMA Disaster Assistance Fact Sheet 9580.8, Eligible Sand Replacement on Public Beaches.  FEMA found the Applicant did not demonstrate that it established and adhered to a regular maintenance program and preserved the dunes’ original design through periodic renourishment.  The Applicant appealed FEMA’s determination, asserting the improvements made in 1990 and 2004, as well as other attempts at maintenance, demonstrate routine maintenance.  The Regional Administrator (RA) denied the appeal, noting the Applicant failed to renourish the beach between 1990 and 2004, and again between 2004 and the start of the disasters in 2012.  The RA further concluded he also could not determine how much sand was lost due to the two disasters based on the submitted documentation.  The Applicant appeals the RA’s decision asserting it supplied sufficient documentation to establish its maintenance program.  It points to two maintenance activities completed in 2004 and 2016 as evidence thereof and also claims that it showed the pre- and post-storm profiles to demonstrate the amount of sand eligible for replacement.  FEMA finds that the Applicant did not demonstrate routine maintenance, and that the documentation shows the Applicant only renourished the beach once prior to the disasters and relied on the dredging of the Canal, rather than establishing a periodic renourishment program.  The Applicant also did not demonstrate the amount of sand loss claimed was caused by the two disasters.

Authorities and Second Appeals

  • Stafford Act § 406.
  • 44 C.F.R. §§ 206.201(c), 206.223, and 206.226(j).
  • PA Guide, at 86-87.
  • DAFS 9580.8, Eligible Sand Replacement on Public Beaches, at 3-4.
  • FEMA Second Appeal Analysis, Texas General Land Office, FEMA-1791-DR-TX, at 2.
  • FEMA Second Appeal Analysis, County of Los Angeles, FEMA-1577-DR-CA, at 2.

Headnotes

  • Pursuant to Stafford Act § 406 and 44 C.F.R. §§ 206.201(c) and 206.226(j)(2), FEMA may fund work to restore an improved and maintained beach, but only if an applicant established and adhered to a maintenance program involving periodic renourishment.
    • The Applicant only renourished the sand once and did not show it established and adhered to a routine maintenance program.
  • Pursuant to 44 C.F.R. § 206.223(a)(1), an item of work must be required as a direct result of a disaster in order to be eligible for funding.
    • The Applicant did not demonstrate that the amount of sand loss claimed was the direct result of the two disasters.

 

Appeal Letter

Kurt N. Schwartz
Director
Massachusetts Emergency Management Agency
400 Worcester Road
Framingham, Massachusetts 01702-5399

Re:  Second Appeal – Town of Sandwich, PA ID 001-59735-00, FEMA-4097-DR-MA and FEMA-4110-DR-MA, Project Worksheets (PWs) 300 and 818 – Beaches, Direct Result of Disaster

Dear Mr. Schwartz:

This is in response to your letter dated May 17, 2016, which transmitted the referenced second appeal on behalf of the Town of Sandwich (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $4,831,350.00 to repair the dunes at Town Neck Beach.

As explained in the enclosed analysis, I have determined that the Applicant did not demonstrate it routinely maintained Town Neck Beach, nor that the amount of sand loss claimed was a direct result of the two disasters.  Accordingly, I am denying this appeal.

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

Sincerely,

/s/
Christopher Logan
Director
Public Assistance Division

Enclosure

cc:  Paul Ford
      Regional Administrator
      FEMA Region I

 

Appeal Analysis

Background                                                  

Town Neck Beach is located in the Town of Sandwich (Applicant), Massachusetts.  In 1990, due to increased erosion of the beach, partially resulting from construction of the Cape Cod Canal (Canal) and two of its jetties, the Applicant constructed an 800 foot long by 240 foot wide dune on the beach, using 45,000 cubic yards (CY) of sand from the Canal.  In 2004, the Applicant constructed a second 3,000 foot long dune adjacent to the original one, utilizing 55,000 CY of sand from Canal dredging.  During construction, the Applicant also renourished the original 800 foot dune with sand from the Canal’s maintenance operations. 

From October 27 through November 8, 2012, Hurricane Sandy (FEMA-4097-DR-MA) caused damage throughout Massachusetts.  The Applicant made a request for Public Assistance (PA) funding, asserting that the heavy wave and tidal action during the hurricane caused sand loss from the dunes.  FEMA prepared Project Worksheet (PW) 300 documenting the request in the amount of $2,376,055.00 to renourish the dunes.  Subsequently, in February 2013, a severe winter storm and flooding caused additional damage throughout the commonwealth.  The Applicant applied for PA funding, requesting $2,455,295.00 to renourish the dunes as a result of the additional sand loss from the storm.  FEMA prepared PW 818 to document that request. 

On January 23, 2015, FEMA informed the Applicant that both dunes were ineligible.  FEMA specifically noted:

In this instance, the Applicant has provided information indicating that original beach construction and nourishments were accomplished only with the use of spoils from maintenance dredging of the Cape Cod Canal…  The original construction and timing of nourishments appears to have been based on the availability of spoils from Cape Cod Canal maintenance dredging, rather than on restoration needs of the beach/dune.[1]

FEMA determined the dunes were not improved natural features pursuant to Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(j) and FEMA Disaster Assistance Fact Sheet (DAFS) 9580.8, Eligible Sand Replacement on Public Beaches.  FEMA specifically noted that the Applicant: (1) did not establish that Town Neck Beach was an engineered beach because the plans did not specify the sand’s grain size used in the dunes’ construction; (2) did not provide documentation to demonstrate it established and adhered to a maintenance program that preserved the dunes’ original design through periodic renourishment; and (3) constructed and renourished the dunes with dredged spoils of a type and quantity of sand dictated by the navigational needs of the Canal rather than the design of the dunes.[2]

First Appeal

In letters dated April 22, 2015 and April 23, 2015, the Applicant appealed FEMA’s PA eligibility determinations for the work documented in PW 300 and PW 818, respectively.  The Applicant claimed it used dredged spoils of the proper grain size when it improved the first dune in 1990 and the second in 2004 and adhered to an established maintenance program.  In support thereof, it cited to the improvements made in 1990 and 2004, as well as two other attempts at maintenance, which it was unable to carry out due factors outside its control. 

FEMA Region I sent a request for information on September 10, 2015, which noted that the Applicant did not sufficiently demonstrate that it established and adhered to a maintenance program involving the periodic renourishment of sand, nor that the loss of sand claimed for both disasters was actually caused by them.  In a response dated October 9, 2015, the Applicant claimed that FEMA already possessed sufficient documentation demonstrating the Applicant established and adhered to a maintenance program.  It also stated that DAFS 9580.8, Eligible Sand Replacement on Public Beaches, did not have the force of law and was arbitrary, unreasonable and inconsistent with the plain terms of the relevant regulation.  The Applicant further stated that DAFS 9580.8 was issued in 2009, after Town Neck Beach was improved, and should not be applied to maintenance programs prior to that date.

In a single letter dated January 25, 2016, the FEMA Region I Regional Administrator (RA) denied the appeals.  The RA determined while the dunes were constructed with the proper grain size to be considered improved, they were ineligible because the Applicant did not establish and adhere to a regular maintenance program.[3]  The RA’s determination pointed to a lack of documentation of periodic inspection or renourishment of the beach between 1990 and 2004 and between 2004 and the start of the disasters in 2012 and also noted that the Applicant’s plan to renourish the dunes did not “contain acceptable grounds for determining how the need for renourishment is determined and funded.”[4]  Finally, the RA concluded that even if the Applicant had demonstrated it routinely maintained the beach, the amount of sand lost due to the two disasters could not be determined based on the documentation submitted.  Accordingly, the RA denied the appeal. 

Second Appeal

On March 24, 2016, the Applicant appealed the RA’s denial of $4,831,350.00 ($2,376,055.00 associated with PW 300 and $2,455,295.00 associated with PW 818) in PA funding.  The Applicant agrees with the RA’s conclusion that Town Neck Beach is an improved or engineered beach and the sediment used for the initial construction and subsequent maintenance constitutes sand of a proper grain size.  As such, the Applicant argues the only issues on second appeal, and for which it claims to have demonstrated, are: (1) creation and adherence to a maintenance program in accordance with 44 C.F.R. § 206.226(j)(2); and (2) the loss of sand was the direct result of the two major disasters.  The Applicant points to two maintenance activities, completed in 2004 and 2016, as evidence of its maintenance program.  It also details its approach to scheduling maintenance around the routine dredging of the Canal, which allows for available sediment.  The Applicant contends it sufficiently documented the pre- and post-storm profiles to demonstrate the amount of sand lost as a direct result of the disasters.  The Massachusetts Emergency Management Agency (Grantee) concurred with the appeal and noted the Applicant provided information to demonstrate it established a maintenance and nourishment plan for Town Neck Beach.[5]

Discussion

Routine Maintenance

Pursuant to Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA may fund work to restore public facilities,[6] including improved and maintained natural features.[7]  In order to receive PA funding for work on an improved natural feature, such as the dunes at Town Neck Beach, an applicant must demonstrate that: (i) the beach was constructed by the placement of sand (of proper grain size) to a designed elevation, width, and slope; and (ii) a m6aintenance program involving periodic renourishment of sand must have been established and adhered to by the applicant.”[8]  The improved beach must be routinely maintained prior to the disaster.  Before making an eligibility determination regarding an improved beach, FEMA typically requests: (1) design documents and specifications, including analysis of grain size; (2) “as-built” plans; (3) documentation of regular maintenance or nourishment of the beach; and (4) pre- and post-storm cross sections of the beach.[9]  Likewise, FEMA DAFS 9580.8, Eligible Sand Replacement on Public Beaches, states that in order to be eligible, a maintenance program needs to include periodic renourishment with sand that preserves the original design.[10]  The applicant should also provide the documentation and details of the maintenance plan, “including how the need for renourishment is determined and funded.”[11]  Conversely, FEMA DAFS 9580.8, Eligible Sand Replacement on Public Beaches, also outlines several instances of ineligible work, including “one-time” nourishments, even if to a design.[12] 

Although the Applicant points to four separate occasions in which it attempted to renourish the dunes, it only renourished one of the two dunes once in 2004 prior to the disasters.  Two of the attempted renourishments could not be completed due to factors beyond its control.  The fourth occasion commenced in January of 2016, three years after the disasters.  Consequently, for over twenty years prior to the disasters that occurred in 2012, the Applicant performed maintenance once for only one of the dunes.[13]  This “one-time” renourishment does not demonstrate that the dunes were maintained.  Moreover, the Applicant’s reliance on the dredging of the Canal is an opportunity renourishment, rather than a maintenance plan involving periodic renourishment.[14]  The Applicant has not presented documentation[15] to substantiate its statement that it “established and adhered to a maintenance program to provide periodic re-nourishment of Town Neck Beach” that depended on the dredging of the Canal.[16]  In fact, a 2012 letter attached to a consulting agreement regarding the beach, states, “it has been over 10 years since the last survey of the inlet and beach.  Over that time the dune has been nourished (and subsequently eroded).”[17]  The Applicant’s Beach Management Plan, adopted in August 2013 after the storms, also states that it “has never engaged in a directed beach nourishment project… [and] in the past dune restoration has been performed on an ad hoc basis as sand becomes available.”[18]  As such, the Applicant has not demonstrated that it established and adhered to a routine maintenance program for the dunes. 

Direct Result of Disaster

Pursuant to 44 C.F.R. § 206.223, to be eligible for funding, an item of work must be required as a direct result of a disaster.[19]  In this instance, the amount of eligible funding is limited to the replacement of sand lost due to the disasters.[20]  On the other hand, sand lost due to typical tide, currents, and wave action are not eligible for funding.[21]  To determine the volume of eligible sand for replacement, FEMA looks at pre-storm and post-storm profiles.[22]  If unavailable, FEMA estimates the volume based on erosion from the design study and renourishment history to determine pre-storm condition.[23]  

The Applicant argues it sufficiently documented the pre- and post-storm profiles to demonstrate and calculate the sand loss from the two disasters and the amount eligible for replacement.  The Applicant’s engineering consultant provided pre- and post-storm surveys for both disasters.  With regard to PW 300, the Applicant states it completed its pre-storm survey on October 24, 2012, and began its post-storm survey in December 2012, completing it on February 1, 2013.  It alleges 84,784 CY of sand was lost as a direct result of Hurricane Sandy.  With regard to PW 818, the Applicant completed a pre-storm survey based on its post-storm survey completed for Hurricane Sandy, which finished seven days prior to the winter storm in February 2013.  It then completed its post-storm survey on March 15, 2013 and claims a loss of 45,711 CY of sand as a result of the storm event.

While the Applicant performed storm profile surveys before and after the storms, they do not account for sand loss due to natural causes.  For 8 years prior to the disasters, the dunes went without renourishment and eroded from wave and tidal action.[24]  The fact that significant erosion occurred during this time is evident from the Applicant’s 2010 request to the U.S. Army Corps of Engineers for 100,000 CY of sand to renourish the dunes.  The Applicant’s request was denied, but two years later the Applicant’s PA request to FEMA included 130,495 CY of sand that it claims is solely the result of the two disasters.  The Applicant’s surveys are deficient because they do not account for non-disaster related erosion nor do they reconcile the 100,000 CY discrepancy noted in its 2010 request.  Consequently, the Applicant has failed to specifically demonstrate the sand loss from the disasters in question. 

Conclusion

The Applicant did not demonstrate it routinely maintained the dunes nor did it demonstrate that the sand loss claimed was a direct result of the two disasters.  Accordingly, the appeal is denied.

 


[1] Memorandum from Disaster Recovery Manager, FEMA, to Mitigation and Disaster Recovery Manager, Mass. Emergency Mgmt. Agency, and Town Manager, Town of Sandwich (Jan. 23, 2015) (further stating, “[i]n two noted instances, in 2001 and 2010, the Applicant intended that dredge spoils be used for beach nourishment; however, the entity dredging Cape Cod Canal did not place the spoils on Town Neck Beach.  The Applicant failed to commence any effort to renourish the beach using alternative sources for sand once these dredge spoils became unavailable.  These examples further demonstrate that the Applicant’s plan for beach/dune nourishment was based only on the availability of dredge spoils, rather than a determination of need based on the original design of the beach and a documented maintenance schedule”).

[2] See id.

[3] FEMA First Appeal Analysis, Town of Sandwich, FEMA-4097-DR-MA and FEMA-4110-DR-MA, at 8 (Jan. 25, 2016) [hereinafter First Appeal Decision] (The RA pointed to the definitions of “program” and “periodic” in the dictionary and noted that the Applicant’s purported plan for maintenance did not meet either definition.  The RA explained that the beach is subject to continual erosion from wave action and if an applicant fails to maintain the engineered portions of the beach with periodic sand replenishment, it allows the beach to degrade back to an unimproved natural feature).

[4] Id. at 11 (citing FEMA Second Appeal Analysis, County of Los Angeles, FEMA-1577-DR-CA, at 2 (May 19, 2009) to highlight that without records showing completed maintenance activity and periodic inspection of the beach, compounded by a documented reliance upon opportunity or ad hoc renourishment, the documents submitted by the Applicant did not constitute a maintenance program involving periodic renourishment of sand to maintain the designed improvements). 

[5] Though the Grantee refers to the restoration as emergency work, FEMA classified the beach restoration as Category G - permanent work.  Project Worksheet 300, Town of Sandwich, Version 0 (Nov. 1, 2013); Project Worksheet 818, Town of Sandwich, Version 0 (Nov. 1, 2013).

[6] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007).

[7] 44 C.F.R. § 206.201(c) (2012).

[8] Id. § 206.226(j)(2).

[9] Public Assistance Guide, FEMA 322, at 86-87 (Jun. 2007) [hereinafter PA Guide].

[10] Disaster Assistance Fact Sheet (DAFS) 9580.8, Eligible Sand Replacement on Public Beaches, at 3 (Oct. 1, 2009).

[11] Id.

[12] Id. at 4.

[13] See FEMA Second Appeal Analysis, Texas General Land Office, FEMA-1791-DR-TX, at 2 (Jan. 17, 2012) (denying the appeal and finding that “[t]he Applicant’s maintenance program was established…two years after the declared event.”).

[14] See County of Los Angeles, FEMA-1577-DR-CA, at 2 (determining that “[t]he Applicant’s claim that…‘opportunity nourishments’ constitute a maintenance plan, is not valid.  Even areas of low annual erosion need a renourishment plan to account for periodic erosion from severe events.  ‘Opportunity nourishments’ are as-needed nourishments.  The Applicant’s maintenance plan is to wait until the beach has eroded to an unimproved or critical condition before it nourishes the beach.”)

[15] The Applicant provided proposals for work in 1990, 2001, and 2011, but the proposals do not establish a maintenance plan involving periodic renourishments.

[16] Letter from Att’y, Kopelman and Paige, P.C., to Mitigation and Disaster Recovery Manager, Mass. Emergency Mgmt. Agency, at 5 (Mar. 24, 2016) [hereinafter Applicant’s Second Appeal Letter].

[17] Letter from Coastal Engineer, Woods Hole Group, to Town Adm’r, Town of Sandwich (Feb. 9, 2012).  The Applicant’s attempt to acquire 100,000 CY of dredged spoils in 2010 to renourish the dunes also indicates a lack of routine maintenance and a serious need at that time for sediment replenishment due to erosion. Applicant’s Second Appeal Letter, at 4; First Appeal Decision, at 9.

[18] Beach Management Plan for Town of Sandwich Beaches, at 76-77 (July 2013).

[19] 44 C.F.R. § 206.223(a)(1).

[20] DAFS 9580.8, Eligible Sand Replacement on Public Beaches, at 3.

[21] Id.

[22] Id.

[23] Id.

[24] Applicant’s First Appeal Letter, at 2 (stating “hundreds of thousands of cubic yard of sand destined for Town Neck Beach has been trapped at the Canal’s northern jetty…..[t]his combined with documented climate change impacts of rising sea levels and increased frequency of significant storm events have made Town Neck Beach subject to unprecedented erosion.”);  Letter from Town Manager, Town of Sandwich, to Coastal Zone Management, at 1 (Oct. 9, 2014) (stating “[f]or perspective, from 1860 through 2012, Town Neck Beach has eroded at a rate of 1-3 feet per year.  From 2001 through 2012, the annual rate of erosion has averaged from 4 feet to up to 15 feet per year.”).

Last updated May 28, 2020