U.S. flag

An official website of the United States government

Dot gov

The .gov means it’s official.

Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

Https

The site is secure.

The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

Beaches – Direct Result of the Disaster – Legal Responsibility – Other Federal Agency – Sand Replacement

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4080
ApplicantOffice of Coastal Protection and Restoration
Appeal TypeSecond
PA ID#000-UTFMG-00
PW ID#1568
Date Signed2016-12-23T00:00:00

Conclusion: Louisiana’s coastal barrier islands and headlands, as a whole, do not qualify as a “system” because they were not “built or manufactured” in accordance with a design, nor is the Pass La Mer to Chaland Pass Restoration Project (BA-38(2)) a “facility” because the Applicant failed to demonstrate regular maintenance.  Funding is also precluded because another Federal program is charged with the restoration of these islands and headlands.

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to sand fencing, a beach and dunes, as well as vegetative plantings on BA-38(2).  FEMA prepared Project Worksheet 1568 to document the repair work, finding sand fencing repairs eligible and the remainder of the work ineligible due to a lack of a regular maintenance plan, and the work being the responsibility of another federal agency.  On first appeal, the Applicant argued that: (1) the work is eligible as there is no other agency with specific authority to repair the damages in question, (2) FEMA’s denial of eligibility on the basis of purported legal authority of another federal agency is contrary to statute, regulation, and policy, (3) BA-38(2) is an eligible nonstructural project for shoreline stabilization designed to mimic, enhance, or restore natural stabilization systems per FEMA’s regulations implementing the Coastal Barrier Resources Act (CBRA), and (4) BA-38(2) is an eligible facility because it is does not require routine maintenance, or FEMA should recognize inspection reports as sufficient to establish pre-disaster condition.  The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) the natural features of BA-38(2) were not maintained and thus failed to meet the regulatory requirements to be considered an improved beach, (2) the cost share provision of the Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA) does not allow FEMA to fund the state share, (3) projects must meet PA eligibility requirements before determining whether the project is compliant with CBRA, and (4) FEMA is prohibited from funding the repairs due to the Applicant’s agreement with the National Marine Fisheries Service to construct BA-38(2).  On second appeal, the Applicant argues that FEMA’s denial is erroneous because: (1) there is no other federal agency responsible for funding the disaster-related repairs; and (2) BA-38(2) is an eligible “facility.”

Authorities and Second Appeals

  • Stafford Act §§ 102(9)(C), 312(a), 705(c).
  • 16 U.S.C. §§ 3502(6)-(7), 3951-3956.
  • 44 C.F.R. §§ 206.201(c), (j), 206.226(a), (j), 206.340, 206.343(a).
  • PA Guide, at 22.
  • FEMA Recovery Policy FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures (Mar. 31, 2016).
  • FEMA Second Appeal Analysis, Louisiana Department of Natural Resources Isles Dernieres Restoration Projects, FEMA-1437-DR-LA (Jan. 25, 2005)
  • FEMA Second Appeal Analysis, Ventura County, FEMA-1577-DR-CA (July 7, 2009)

Headnotes

  • 44 C.F.R. § 206.201 defines a facility as “any publicly or privately owned building, works, system or equipment, built or manufactured, or an improved and maintained natural feature.”
    • Louisiana’s coastal barrier islands and headlands, as a whole, do not qualify as a “system” because they were not “built or manufactured.”
  • The PA Guide states that maintenance must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.
    • BA-38(2) is not a “facility” because the Applicant failed to demonstrate that the Chaland Headland was maintained.
  • 44 C.F.R. § 206.226(a) limits PA funding where there is another Federal authority to restore facilities. 
    • CWPPRA creates an ongoing Federal program to specifically address restoration of the barrier islands and headlands.

 

Appeal Letter

James Waskom
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

Re:  Second Appeal – Office of Coastal Protection and Restoration, PA ID 000-UTFMG-00, FEMA-4080-DR-LA, Project Worksheet (PW) 1568 – Beaches – Direct Result of the Disaster – Legal Responsibility – Other Federal Agency – Sand Replacement

Dear Mr. Waskom:

This is in response to a letter from your office dated December 17, 2015, which transmitted the referenced second appeal on behalf of Office of Coastal Protection and Restoration (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $21,200,775.00 for costs associated with beach and dune fill replacement and vegetative planting work.

As explained in the enclosed analysis, I have determined that the Applicant has failed to demonstrate that the Louisiana coastal barrier islands and headlands are an eligible facility; and more specifically, has not demonstrated that Chaland Headland is an improved and maintained natural feature.  Further, Public Assistance funding is precluded because the Coastal Wetlands Planning, Protection and Restoration Act of 1990 creates an ongoing Federal program to specifically address the environmental restoration of Louisiana’s barrier islands and headlands.  Accordingly, I am denying this appeal and directing FEMA Region VI’s Regional Administrator to deobligate $160,000.00 in funding for sand fencing. 

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/

Alex Amparo
Assistant Administrator
Recovery Directorate                                                      

Enclosure

cc:  George A. Robinson
      Regional Administrator
      FEMA Region VI

 

Appeal Analysis

Background

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to sand fencing, a beach and dunes, as well as vegetative plantings on Chaland Headland, which had been modified by the Barataria Barrier Island Complex Restoration Project (BA-38).  BA-38 is comprised of two separate components: the Pelican Island Restoration (BA-38(1)), and the Pass La Mer to Chaland Pass Restoration (BA-38(2)).  This appeal relates only to the Pass La Mer to Chaland Pass Restoration Project (BA-38(2)). 

BA-38(2) was completed in 2007[1] under the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA).[2]  State responsibilities for BA-38(2) were transferred from the Office of Coastal Restoration and Management within the Louisiana Department of Natural Resources (DNR) to the Coastal Protection and Restoration Authority (CPRA) (Applicant) in 2009.[3]

FEMA prepared Project Worksheet (PW) 1568, Category G to document replacement of approximately 14,250 feet of sand fencing, 16,000 vegetative plantings, and 1,161,111 cubic yards of beach and dune fill.  FEMA found repairs to the sand fencing to be eligible in the amount of $160,000.00, but found that $21,200,775.00 in beach and dune fill replacement and vegetative planting work was ineligible because (1) funding to repair BA-38(2) is the responsibility of another federal agency;[4] and (2) the Applicant did not demonstrate the improved beach, dunes, and vegetative plantings were regularly maintained.[5]

First Appeal

The Applicant appealed FEMA’s determination on January 31, 2014.  The Applicant argued that: (1) the work is eligible because there is no specific authority under the CWPPRA to repair the damages in question; (2) FEMA’s denial of eligibility on the basis of another federal agency’s legal authority is contrary to Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and FEMA’s regulations and policies; (3) BA-38(2) is an eligible nonstructural project for shoreline stabilization designed to mimic, enhance, or restore natural stabilization systems per FEMA’s regulations implementing the Coastal Barrier Resources Act (CBRA); and (4) a maintenance plan should not be essential for eligibility because BA-38(2) does not require routine maintenance to function as designed, or FEMA should recognize inspection reports as sufficient to establish pre-disaster condition.[6] 

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on April 3, 2014.  The Grantee argued that: the National Marine Fisheries Service (NMFS) was the sponsor of the BA-38(2) project, not its funding source and that BA-38(2) does not require routine maintenance.[7]

On March 18, 2015, FEMA sent a Final Request for Information (RFI) to the Grantee, requesting: (1) the amount of funding being appealed for each project component; (2) all cost sharing and cooperative agreements; (3) official notifications of project completion; (4) amount and purpose of CWPPRA funds received after 2008 (5) operations, maintenance, and monitoring plans; (6) maintenance budgets; and (7) documentation establishing that the beach is an engineered beach.[8]  In its response to the Final RFI, the Applicant asserted it submitted all required documentation and requested that FEMA review the “Cooperative Agreement” and letters from the Natural Resources Conservation Service, Environmental Protection Agency, and the National Oceanic and Atmospheric Administration (NOAA).  The Applicant also reserved the right to provide written confirmation that no other federal agency has responsibility for the work, which it was in the process of obtaining.[9] 

The FEMA Region VI Regional Administrator (RA) denied the first appeal on August 6, 2015.  The RA found that: (1) the natural features of BA-38(2) were not maintained, and thus failed to meet the regulatory requirements for improved beaches at the time of the disaster; (2) BA-38(2) was federally funded by the NOAA/NMFS under the CWPPRA; (3) the cost share provision of the CWPPRA does not allow FEMA to fund the state share; and (4) projects must meet PA eligibility requirements before determining whether the project is compliant with the CBRA.[10]  The RA also clarified that Section 312(a) of the Stafford Act, rather than Section 312(b)(1), is the relevant authority applicable to duplication of benefits.

Second Appeal

The Applicant submitted a second appeal by letter dated October 19, 2015.  The Applicant argues: (1) FEMA’s denial of funding is erroneous as there is no other federal agency responsible for funding these disaster-related repairs; and (2) FEMA’s denial of eligibility is incorrect because BA-38(2) is a “facility” eligible for Public Assistance (PA).[11] 

The Grantee transmitted the second appeal to FEMA Region VI on December 17, 2015 and supplemented the Applicant’s main arguments by asserting that FEMA did not acknowledge that the barrier islands do not require traditional maintenance.  According to the Grantee, the project had a life expectancy of 20 years and did not require normal maintenance if performing its intended purpose.  The Grantee argued that even if another federal agency has legal responsibility to provide funding for BA-38(2), Stafford Act § 312(b) allows FEMA to provide funding if the Applicant has not yet received benefits or has only received partial benefits from the other agency.  The Grantee also stated that the CBRA negates FEMA’s requirement for a maintenance plan as barrier islands do not require traditional maintenance.

Discussion

Facility Eligibility of Louisiana’s Coastal Barrier Resources System

The Applicant claims that FEMA’s denial of eligibility of PW 1568 is incorrect because BA-38(2) is a facility eligible for PA.[12]  It argues that FEMA has failed to recognize BA-38(2) as part of the CBRS, a “system,” and that all of its component parts comprise an eligible “facility.”[13]

FEMA recognizes that BA-38(2) is part of the Barataria/Plaquemines barrier shoreline system[14] numbered S01A on the Louisiana CBRS maps.[15]  FEMA also notes that the CBRA uses the term “system” to mean the barrier resource system defined in the Act,[16] which is comprised of “undeveloped” system units.[17]  However, the CBRA and its implementing regulations perform a different function than the Stafford Act, which uses the term “system” as part of a definition to establish PA eligibility for a wide range of facilities.  The Stafford Act definition of “public facility” includes “any other public building, structure, or system.”[18]  The word “system” is used in conjunction with the words “building” and “structure” to describe other types of public facilities that are man-made, such as sewage systems or electric power distribution systems.  In contrast, the CBRA defines “system unit” to mean “any undeveloped coastal barrier, or combination of closely-related undeveloped coastal barriers, included within the [CBRS].”[19]  This definition is inclusive of Louisiana’s barrier islands because, as a whole, the islands are not man-made but are naturally occurring landforms that are undeveloped and subject to constant change due to wave and tidal action.  In line with legislative intent, FEMA’s regulatory definition of “facility” excludes such undeveloped systems that are not “built or manufactured.”[20]  As Louisiana’s CBRS was not “built or manufactured,” it does not qualify as a “system.”

The statutory and regulatory constraints that limit eligible facilities to structures, buildings, and systems that are “built or manufactured” by man, is supported by the fact that the Stafford Act bases the amount of assistance off “the design of the facility as it existed immediately before the disaster event.”[21]  FEMA regulation embodies this by requiring that permanent work restore an eligible facility on the basis of its predisaster design and applicable standards.[22]  Louisiana’s system of barrier islands and headlands lack a predisaster design because they are naturally occurring and their formations as a system constantly change.  Louisiana’s CBRS does not have a “predisaster design” to which it can be constructed because the system as a whole was never designed in the first place.

Facility Eligibility of BA-38(2) as a Natural Feature

The Applicant alternatively argues that BA-38(2) is eligible for PA funding because it is an improved and maintained natural feature.[23]  The Applicant supports its claim that the headland has been maintained by asserting that projects (past and ongoing) have improved and maintained the “system” of barrier islands, of which it is a part.  It asserts that system wide projects equate to maintenance for BA-38(2).  Specifically it cites Louisiana’s 2002 Barrier Island Comprehensive Monitoring Program (BICM) to provide long-term data about the system,[24] and two bills passed by the Louisiana legislature (House Bills No. 429 and 1034) in 2004 establishing the Barrier Island Stabilization and Preservation Program (BIMP), to select and prioritize maintenance projects.[25]  To these arguments the Grantee adds that FEMA did not acknowledge that barrier islands and headlands do not require traditional operation or maintenance.  According to the Grantee, BA-38(2) had a life expectancy of 20 years and did not require normal maintenance if performing its intended purpose.[26]

Pursuant to 44 C.F.R. § 206.201, a facility is defined as “any publicly or privately owned building, works, system or equipment, built or manufactured, or an improved and maintained natural feature.”[27]  For an “improved and maintained natural feature”[28] to be eligible, maintenance “must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.”[29]  FEMA also looks to maintenance or inspection reports to verify the pre-disaster condition of facilities and to determine if the work is required as a direct result of the disaster.[30]  BA-38(2) is a headland, which is a natural feature, and held to the requirement of being improved and maintained.

The Applicant has failed to provide any evidence that BA-38(2) has been regularly maintained.  The Applicant’s argument that maintenance of one piece of a “system” constitutes maintenance of the entire system is flawed.  For example, if one segment of a road system is maintained regularly (e.g., a bridge), that does not constitute maintenance of the entire road system and other bridges within the system.  When considering BA-38(2) individually, the administrative record is void of documentation demonstrating regular maintenance since its construction.  The Cooperative Agreement states that “maintenance will be funded through a series of Cooperative Agreements between NMFS and LDNR,”[31] but the Applicant has not provided any of the agreements or documentation demonstrating that maintenance occurred.  Likewise, the Coastal Protection and Restoration Authority of Louisiana Operations, Maintenance, and Rehabilitation Plan states that new sand fencing will be constructed in years five, ten, and fifteen.[32]  It has been over nine years since the project was completed, therefore the Applicant should have been able to provide documentation that some of this maintenance occurred.  Furthermore, and specifically relevant to the issue on appeal, the Coastal Protection and Restoration Authority of Louisiana 2009 Operations, Maintenance, and Monitoring Report explicitly notes that “[c]laims for FEMA assistance resulting from extensive or catastrophic damage to barrier islands from tropical storms and hurricanes are ineligible because there is no scheduled maintenance.”[33]  Thus, the Applicant has not only not provided documentation demonstrating the performance of maintenance, nor a design to which BA-38(2) is maintained, but has actually provided explicit guidance reflecting an understanding that BA-38(2) is ineligible for FEMA PA.

Finally, the Grantee’s claim that the project does not require maintenance once the initial construction is complete lends support to the conclusion that BA-38(2) is a natural feature rather than an “improved and maintained” natural feature.  The barrier islands and headlands appear to be designed to develop naturally rather than maintain a strict design standard, allowing for erosion to some degree during storms as part of its natural migration, which is why there are no maintenance requirements.  In sum, the barrier islands and headlands continue to exist as a natural feature without any regular maintenance by the Applicant.[34]  As such, FEMA finds the proposed work ineligible for PA grant funding.[35]
 

Eligibility of BA-38(2) as an Improved Beach

To the extent that the Applicant and Grantee request consideration of the work in accordance with FEMA regulatory[36] and policy requirements[37] for beaches, the work is not eligible for PA grant funding.  To be eligible for PA funding, an improved beach must be constructed by the placement of sand (of proper grain size) to a designed elevation, width, and slope; and the applicant must establish and adhere to a maintenance program involving periodic renourishment of sand.  The Applicant has not provided documentation necessary to demonstrate that BA-38(2) was designed to a certain elevation, width, and slope with sand of a particular grain size.[38]  Additionally, as discussed above, the Applicant has not demonstrated a maintenance program involving periodic sand renourishment nor routine maintenance to BA-38(2).  Finally, the Applicant has not demonstrated BA-38(2) was constructed according to specific requirements and maintained to those standards.  As such, it is not eligible for PA grant funding. 

Eligibility of Sand Fencing

To be eligible for PA funding “an item of work must be required as a direct result of the declared disaster.”[39]  Normal maintenance that existed prior to the disaster is not eligible[40] and it is the “applicant’s responsibility to show that the damage is disaster-related.”[41]  When preparing the damage description for PW 1568, FEMA relied on statements made by the Applicant that the sand fencing was damaged by “incident-period surge waters.”[42]  FEMA determined the sand fencing repairs to be eligible based on “previously approved claims” for other similar declared disasters[43] and the Applicant’s stated intent to maintain sand fencing over the twenty-year life of the project.[44]  Unfortunately, the Applicant’s statement that the sand fencing was damaged by surge waters is not supported by documentation.  The administrative record does not include any maintenance or inspection reports that would reflect that the sand fencing damage resulted from the disaster.  Likewise, FEMA improperly relied upon previously approved claims for sand fencing repairs and statements by the Applicant that it maintained the sand fencing.  As the Applicant has not demonstrated disaster related damage associated with the sand fencing, its repair is not eligible for reimbursement. 

Applicability of FEMA’s Regulations Implementing the CBRA

The Applicant argues that Congress intended the CBRA’s statutory exemption of BA-38(2), being numbered S01A on the Louisiana CBRS maps, to be interpreted broadly so that federal agencies provide funding for “stabilization and erosion control projects in units depicted on maps S01 through S11 so as to address the serious erosion problems facing Louisiana's coastline.”[45]  The Applicant’s interpretation of Congress’ intent ignores important context.  The exemption was established in recognition that “the coastal erosion problem is largely the result of Federal policies and actions,” such as the leveeing and channelization of the Mississippi and Atchafalaya Rivers which once renourished the marsh system.[46]  The exemption was not established to repair damage caused by natural disasters, such as hurricanes, but was focused solely on remedying the damage caused by federal “policies and actions.”[47]  Consequently, it appears Congress only intended for agencies to broadly interpret the “types of stabilization projects that may be undertaken” under the exemption.[48]  However, legislative history does not demonstrate Congressional intent for federal agencies to broadly interpret their own statutory authority to award grant funding for stabilization and erosion control projects in the Louisiana CBRS.[49] 

Lastly, the Applicant contends that BA-38(2) falls within the CBRA exceptions, specifically 44 C.F.R. § 206.345(b)(6), and therefore does not need to meet PA eligibility requirements.  This is incorrect.  If an applicant proposes to complete work within a CBRS and the work falls within one of the exceptions, the CBRA limitations, detailed in 44 C.F.R. § 206.344, on new expenditures or financial assistance do not apply and a regional administrator “may make” disaster assistance available.  The exceptions only pertain to the CBRA limitations; not the foundations of PA eligibility. 

Responsibility of Other Federal Agency

The Applicant also claims that FEMA’s denial of eligibility of PW 1568 was erroneous as there is no other federal agency (OFA) responsible for funding the subject disaster-related repairs.[50]  The Applicant argues that the cooperative agreement between the NMFS and the Applicant does not convey any specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages;[51] NMFS, along with other CWPPRA task force members, have indicated they do not have authority; and CWPPRA does not authorize any specific federal agency to fund projects from its operating budget.  Moreover, the Applicant asserts that FEMA failed to comply with its responsibility to contact other federal agencies about their authority; and has previously approved work for sand fence repair, which contradicts an assertion the work is another federal agency’s responsibility.

PA funding is not available when “another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”[52]  While the Applicant contends that CWPPRA does not provide for restoration for disaster related damages, FEMA disagrees.

CWPPRA authorizes the Secretary of the Army to “carry out projects to protect, restore, and enhance wetlands and aquatic/coastal ecosystems.”[53]  The definition of a coastal wetlands restoration project in the CWPPRA does not specifically address disaster related repairs, rather it states simply that project activities include but are not limited to “new projects, completion or expansion of existing or on-going projects, individual phases, portions, or components of projects and operation, maintenance and rehabilitation of completed projects.”[54]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[55] 

Further, a June 26, 2015 letter from the U.S. Army Corps of Engineers (USACE) provides that “if the Federal and State sponsors of an existing CWPPRA project submit a request to restore infrastructure constructed with CWPPRA funding that was damaged or destroyed by a storm event, the Task Force has the discretion to approve or disapprove the request.”[56]  While FEMA has not consulted with the Department of the Army regarding this project, this letter reflects the discretionary authority of USACE and the Task Force, under the CWPPRA, to approve or deny project work to repair disaster related damage.  The Operation, Maintenance, and Rehabilitation Plan describes additional responsibilities of the NMFS to fund the federal contribution towards the long-term operation, maintenance, repair and rehabilitation of the project.[57]  This mechanism of funding further emphasizes that another federal entity has specific authority to repair BA-38(2).

The Applicant also argues FEMA’s previous approval of work for sand fencing repair contradicts an assertion that the work is the responsibility of another federal agency.[58]  The funding of such repairs was in error and FEMA will take appropriate action to correct the matter.[59]

In conclusion, FEMA finds that pursuant to the plain language of CWPPRA, the responsibility for this proposed work rests with another federal agency.  Accordingly, the Applicant’s claim that CWPPRA does not include or intend to authorize projects to repair hurricane damaged structures is not supported by a reading of the plain language of the Act and PA funding is not available due to another agency’s authority.

Stafford Act § 705(c) Applicability

Section 705(c) of the Stafford Act bars FEMA from deobligating previously awarded funding if: “(1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.”[60]  FEMA issued FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, to implement these criteria.[61]  If all three are met, FEMA is prohibited from recouping grant funds even if it later determines that it made an error in determining eligibility.[62]  In this instance, FEMA is not prohibited from disallowing and deobligating the $160,000.00 in funding previously awarded for sand fencing because the Grantee has not drawn down funds for the work nor has the Applicant accomplished the purpose of the grant – completion of repairs to the sand fencing.  Consequently, FEMA can deobligate the $160,000.00 for sand fence repairs.

Conclusion

FEMA finds that Louisiana’s coastal barrier islands and headlands, as a whole, do not qualify as a “system” within 44 C.F.R § 206.201(c)’s definition of a “facility” as they were not “built or manufactured” in accordance with a design.  Additionally, BA-38(2) cannot be considered a “facility” because the Applicant failed to demonstrate that Chaland Headland has been maintained.  Finally, funding is also precluded by the Stafford Act and regulation because there is another Federal program specifically designed to address the environmental restoration of Louisiana’s barrier islands and headlands.  Consequently, the RA was correct in denying $21,200,775.00 in beach and dune fill replacement and vegetative planting work.  FEMA will also deobligate an additional $160,000.00 in funding previously awarded in error to repair sand fencing.

 


[1] 2009 Operations, Maintenance, and Monitoring Report for Barataria Barrier Island Complex Project: Pelican Island and Pass La Mer to Chaland Pass, at 6 (July 2009).

[2] Coastal Wetlands Planning, Protection and Restoration Act, 16 U.S.C. §§ 3951-3956 (2010).

[3] 2009 La. Acts 523, 67-68 (https://www.legis.la.gov/Legis/ViewDocument.aspx?d=668806).

[4] Specifically, the National Oceanic and Atmospheric Administration and National Marine Fisheries Service as authorized by the CWPPRA.

[5] Project Worksheet 1568, Office of Coastal Protection and Restoration, Version 0 (Oct. 17, 2013).

[6] Letter from Counsel, Coastal Protection and Restoration Authority, to Deputy Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Jan. 31, 2014).

[7] Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Reg’l Adm’r, FEMA Region VI (Apr. 3, 2014).

[8] Letter from Dir., Recovery Div., FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Mar. 18, 2015).

[9] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (June 2, 2015).

[10] Letter from Reg’l Adm’r, FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Aug. 6, 2015).

[11] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Oct. 19, 2015) (stating these main arguments as well as multiple supporting claims) [hereinafter Applicant Second Appeal Letter].

[12] Applicant Second Appeal Letter, at 10.

[13] Id. at 9.

[14] 2009 Operations, Maintenance, and Monitoring Report for Barataria Barrier Island Complex Project: Pelican Island and Pass La Mer to Chaland Pass Restoration, at 4 (July 2009).

[15] Coastal Barrier Resources System Map, Bastian Bay Complex S01A (http://www.fws.gov/CBRA/Maps/CBRS/ 442.PDF Oct. 24, 1990) and (http://www.fws.gov/CBRA/Maps/CBRS/443.PDF Oct. 24, 1990).

[16] Coastal Barrier Resources Act, 16 U.S.C. § 3502(6) (2010).

[17] Id. § 3502(7).

[18] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 102(9)(C), 42 U.S.C. § 5122(9)(C) (2006).

[19] 16 U.S.C. § 3502(7).

[20] 44 C.F.R. § 206.201(c).

[21] 42 U.S.C. § 5172(e) (including other costs that are in conformity with applicable codes, specifications, and standards).

[22] 44 C.F.R. § 206.201(j).

[23] Applicant Second Appeal Letter, at 10.

[24] Id. at 22.

[25] Id.

[26] Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, FEMA, at 7 (Dec. 17, 2015).

[27] 44 C.F.R. § 206.201(c).

[28] Id.

[29] Public Assistance Guide, FEMA 322, at 22 (June 2007) [hereinafter PA Guide].

[30] Id. at 33.

[31] Cooperative Agreement Between U.S. Dep’t. of Commerce NMFS and State of Louisiana DNR, at 6 (June 17, 2008).

[32] Operations, Maintenance, and Rehabilitation Plan for the Barataria Barrier Island Complex Project: Pelican Island and Pass La Mer to Chaland Pass Restoration (BA-38(2)), at 5 (May 14, 2009).

[33] 2009 Operations, Maintenance, and Monitoring Report for Barataria Barrier Island Complex Project: Pelican Island and Pass La Mer to Chaland Pass Restoration, at 13 (July 2009).  See also 2008 Annual Inspection Report, at 3 (July 2009) (“No programmed maintenance is scheduled at this time”); 2009 Operations, Maintenance, and Monitoring Report for Barataria Barrier Island Complex Project: Pelican Island and Pass La Mer to Chaland Pass, at 7 (July 2009) (“This project has no structure to operate, thus no operation plan”).

[34] See FEMA Second Appeal Analysis, Louisiana Department of Natural Resources Isles Dernieres Restoration Projects, FEMA-1437-DR-LA, at 4 (Jan. 25, 2005) (“…while certain improvements to the islands may have been constructed as part of the restoration project, the barrier islands are allowed to continue in their general natural state and, as such, essentially remain natural features.”).

[35] See FEMA Second Appeal Analysis, Ventura County, FEMA-1577-DR-CA (July 7, 2009) (finding terracing ineligible for PA funding because the facility was not maintained on a regular schedule to ensure it performed as designed.)

[36] 44 C.F.R. § 206.226(j).

[37] Disaster Assistance Fact Sheet DAP9580.8, Eligible Sand Replacement on Public Beaches (Oct. 1, 2009).

[38] Id. at 3.

[39] PA Guide, at 33.

[40] Id.

[41] Id.

[42] PW 1568, Office of Coastal Protection and Restoration, at 1 (Version 0) (The description is preceded by the statement “[p]er the Applicant…”).

[43] Id. at 2.  The PW references FEMA Second Appeal Analysis, Louisiana Department of Natural Resources Isles Dernieres Restoration Projects, FEMA-1437-DR-LA (Jan. 25, 2005) for support, however, the second appeal decision does not affirmatively determine that sand fencing is eligible, but only mentions in the background section that the Regional Administrator found sand fencing to be eligible.  Without analysis, the first appeal decision determined that “[t]he criterion for damaged sand fencing removal and replacement meets the eligibility definition of manufactured equipment.”  FEMA First Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1437-DR-LA, at 2 (July 9, 2004).  This determination is problematic because regulation defines “equipment” to mean “tangible, nonexpendable, personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.  44 C.F.R. § 13.3 (emphasis added).  “Personal property” is generally understood to include “all property other than real estate,” and “corporeal personal property,” of which is at issue, specifically includes “movable and tangible things.”  Personal Property, Black’s Law Dictionary (6th ed. 1990).  In contrast, “real estate” includes “land and anything permanently affixed to the land, such as buildings, fences… or other such items which would be personal property if not attached.”  Real Estate, Black’s Law Dictionary (6th ed. 1990).  The sand fencing at issue is permanently affixed to the real estate that is BA-38(2) and therefore cannot be considered movable personal property falling within the definition of “equipment.”

[44] Id. at 4.

[45] Applicant Second Appeal Letter, at 14.

[46] H.R. Rep. No. 97-841, pt. 1, at 15 (1982).

[47] Id.

[48] Id.

[49] The Applicant also mentions that the exception applies to all units “in cases where an emergency threatens life, land, and property immediately adjacent to that unit.”  Applicant Second Appeal Letter, at 15.  The Applicant does not, however, allege the existence of an emergency nor does the administrative record support a conclusion that following the disaster an emergency threatened life, land, or property immediately adjacent to BA-38.

[50] Applicant Second Appeal Letter, at 3.

[51] FEMA acknowledges that the cooperative agreement between NMFS and the Applicant is not an authorizing statute, implementing regulation, or appropriation law and therefore not an authority of another federal agency.

[52] 44 C.F.R. § 206.226(a).  This general prohibition originates from Section 312 of the Stafford Act, which prohibits an applicant from receiving duplicate financial assistance from another source.  Though subsection 312(b) allows FEMA to provide funding if a person has not yet received benefits or has only received partial benefits from another source, this subsection also requires FEMA to establish procedures to ensure uniformity in preventing duplication of benefits, which FEMA accomplished in promulgating 44 C.F.R. § 206.226(a).

[53] 16 U.S.C. § 3956(a).

[54] Id. § 3951.

[55] Id. § 3955.

[56] Letter from District Counsel Chief, Dept. of the Army, Corps of Engineers, New Orleans District, to Counsel, Coastal Protection and Restoration Authority (June 26, 2015) (The quoted portion of the letter was omitted in the Applicant’s analysis).

[57] Operations, Maintenance, and Rehabilitation Plan for the Barataria Barrier Island Complex Project: Pelican Island and Pass La Mer to Chaland Pass Restoration (BA-38(2)), at 7 (May 14, 2009).

[58] Applicant Second Appeal Letter, at 8.

[59] In FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1607-DR-LA, PW 4576, at 2 (Mar. 12, 2012), FEMA incorrectly limited its review of other federal agency authority to a memorandum of agreement and a cooperative agreement and did not consider the underlying legal authority, CWPPRA, when determining the eligibility of repairs to sand fencing.  See also supra note 43.

[60] Stafford Act § 705(c).

[61] FEMA Recovery Policy FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 4-7 (Mar. 31, 2016) (interpreting 705(c) requirements as follows: (1) payment occurs when the recipient draws down funds obligated through SmartLink, regardless of whether the recipient has disbursed funds to the subrecipient, (2) the purpose of the grant was accomplished when the scope of work is completed and the Applicant has demonstrated compliance with post-award terms, and (3) costs are reasonable if, in their nature and amount, they do not exceed that which would be incurred by a prudent person under similar circumstances).

[62] Id. at 4.

Last updated May 28, 2020