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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#1571
Date Signed2016-12-23T00:00:00

Conclusion: Louisiana’s coastal barrier islands, as a whole, do not qualify as a “system” because they were not “built or manufactured” in accordance with a design, nor is the Timbalier Island Dune/Marsh Restoration Project (TE-40) a “facility” because the Applicant failed to demonstrate maintenance.  Funding is also precluded because another Federal program is specifically charged with the restoration of these islands.

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to a beach and dunes on TE-40.  FEMA prepared Project Worksheet 1571 to document the repair work, finding 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, and (3) TE-40 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 the natural features of TE-40 were not maintained and thus failed to meet the regulatory requirements to be considered an improved beach, and that FEMA is prohibited from funding the repairs due to the Applicant’s agreement with the Environmental Protection Agency to construct TE-40.  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) FEMA’s denial is incorrect because TE-40 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, 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.
    • TE-40 is not a “facility” because the Applicant failed to demonstrate that the barrier island 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.

 

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) 1571 – 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 10, 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 $18,392,881.25 for costs associated with beach and dune fill replacement.

As explained in the enclosed analysis, I have determined that the Applicant has failed to demonstrate that the Louisiana coastal barrier islands are an eligible facility; and more specifically, has not demonstrated that the barrier island at issue 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.  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/

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 a beach and dunes on a barrier island that had been modified by the Timbalier Island Dune/Marsh Restoration Project (TE-40).  TE-40 was completed in 2004 under the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA).[1]  State responsibilities for TE-40 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.[2]

FEMA prepared Project Worksheet (PW) 1571, Category G to document replacement of approximately 745,847 cubic yards of beach and dune fill.  FEMA found that $18,392,881.25 in beach and dune fill replacement was ineligible because (1) funding to repair TE-40 is the responsibility of another federal agency;[3] and (2) the Applicant did not demonstrate the improved beach, dunes, and vegetative plantings were regularly maintained.[4]

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; and (3) a maintenance plan should not be essential for eligibility because TE-40 does not require routine maintenance to function as designed, or FEMA should recognize inspection reports as sufficient to establish pre-disaster condition.[5] 

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 Environmental Protection Agency (EPA) was the sponsor of the TE-40 project, not its funding source; the work is eligible according to Disaster Assistance Fact Sheet DAP9580.8, Eligible Sand Replacement on Public Beaches (DAP9580.8); and FEMA should consult with the U.S. Fish and Wildlife Service (USFWS) pursuant to the Coastal Barrier Resource Act (CBRA) requirements, to determine if the work falls under the agency’s authority.[6]

On March 18, 2015, FEMA sent a Final Request for Information (RFI) to the Grantee, requesting any and all maintenance records or activities performed on Timbalier Island.[7]  In its response to the Final RFI, the Applicant asserted it submitted all required documentation and requested that FEMA review letters from the Natural Resources Conservation Service, Environmental Protection Agency, and the National Oceanic and Atmospheric Administration.  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.[8] 

The FEMA Region VI Regional Administrator (RA) denied the first appeal on July 31, 2015.  The RA found that the natural features of TE-40 were not maintained, and thus failed to meet the regulatory requirements for improved beaches at the time of the disaster, and that TE-40 was federally funded by the EPA under the CWPPRA.[9]  The RA 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 12, 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 TE-40 is a “facility” eligible for Public Assistance (PA).[10] 

The Grantee transmitted the second appeal to FEMA Region VI on December 10, 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 argues that TE-40 is a unit connected to a Coastal Barrier Resources System (CBRS) and therefore undergoes a separate and distinct eligibility analysis that is based solely on the consultation and consistency requirements of Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.348 and 206.349.[11]  Accordingly, the Grantee asserts that these are the only requirements that should be considered in determining PA eligibility.

Discussion

Facility Eligibility of Louisiana’s Coastal Barrier Resources System

The Applicant claims that FEMA’s denial of eligibility of PW 1571 is incorrect because TE-40 is a facility eligible for PA.[12]  It argues that FEMA has failed to recognize TE-40 as part of the CBRS, a “system,” and that all of its component parts comprise an eligible “facility.”[13]

FEMA recognizes that TE-40 is part of the Bayou Lafourche barrier system, numbered S05 on the Louisiana CBRS maps.[14]  FEMA also notes that the Coastal Barrier Resources Act (CBRA) uses the term “system” to mean the barrier resource system defined in the Act,[15] which is comprised of “undeveloped” system units.[16]  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.”[17]  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, including within the [CBRS].”[18]  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.”[19]  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.”[20]  FEMA regulation embodies this by requiring that permanent work restore an eligible facility on the basis of its predisaster design and applicable standards.[21]  Louisiana’s system of barrier islands 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 TE-40 as a Natural Feature

The Applicant alternatively argues that TE-40 is eligible for PA funding because it is an improved and maintained natural feature.[22]  The Applicant supports its claim that the island 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 TE-40.  Specifically it cites Louisiana’s 2002 Barrier Island Comprehensive Monitoring Program (BICM) to provide long-term data about the system,[23] 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.[24]  To these arguments the Grantee adds that FEMA did not acknowledge that barrier islands do not require traditional operation or maintenance.  According to the Grantee, TE-40 had a life expectancy of 20 years and did not require normal maintenance if performing its intended purpose.[25]

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.”[26]  For an “improved and maintained natural feature”[27] to be eligible, maintenance “must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.”[28]  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.[29]  TE-40 is a barrier island, which is a natural feature, and held to the requirement of being improved and maintained.

The Applicant has failed to provide any evidence that TE-40 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 TE-40 individually, the administrative record is void of documentation demonstrating regular maintenance.  The 2011 monitoring report describes how five hurricanes have significantly eroded the island since its construction,[30] and despite these impacts, “[t]here has been no maintenance activity on this project” aside from the irregular placement of sand fencing.[31]  Moreover, a Memorandum of Agreement (MOA) between the EPA, the U.S. Army Corps of Engineers (USACE), and DNR describes responsibilities to fund long-term operation, maintenance, repair and rehabilitation of the project.[32]  To receive reimbursement from the CWPPRA Program, DNR must submit invoices to the EPA for certification prior to payment by USACE, the Task Force Chair.[33]  The Applicant has not provided documentation demonstrating the performance of long-term maintenance, repair, or rehabilitation for TE-40.

Finally, the Grantee’s claim that the project does not require maintenance once the initial construction is complete lends support to the conclusion that TE-40 is a natural feature rather than an “improved and maintained” natural feature.  The barrier islands 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 continued 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 TE-40 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 to demonstrate that TE-40 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 TE-40.  Finally, the Applicant has not demonstrated TE-40 was constructed according to specific requirements and maintained to those standards.  As such, it is not eligible for PA grant funding.

Applicability of FEMA’s Regulations Implementing the CBRA

The Grantee argues that because TE-40 is a unit of the CBRS, FEMA must determine eligibility for PA in accordance with the consultation and consistency requirements of 44 C.F.R. §§ 206.348 and 206.349 in lieu of FEMA’s PA eligibility requirements.[39]  The Grantee’s argument, however, is not supported by statute or regulation.  The CBRA was enacted in 1982 to prohibit new expenditures and new financial assistance, including disaster assistance, by federal agencies within the CBRS for all but a few types of activities.  FEMA promulgated 44 C.F.R. Part 206, Subpart J to establish procedures for FEMA to comply with the CBRA “in the administration of disaster assistance.”[40]  FEMA’s regulations, in accordance with the stated purpose of the CBRA, places “limitations” [41] on the provision of assistance for the permanent restoration of facilities located in the CBRS.  The CBRA does not, as suggested by the Grantee, amend or modify the Stafford Act to create a separate disaster assistance program or expand the provision of disaster assistance funding.  The fact that TE-40 is a unit part of the CBRS, being numbered S05 on the Louisiana CBRS maps, and falling under the exemption listed at 206.344(c), does not alter FEMA’s PA eligibility requirements.  The language of the exemption states that “such assistance and expenditures may be made available,”[42] which indicates discretion in awarding assistance.  FEMA exercises this discretion by awarding PA funding in accordance with the criteria described in 44 C.F.R. Part 206 and applicable policies. 

With regard to 44 C.F.R. §§ 206.348 and 206.349, the consultation and consistency requirements are established by 16 U.S.C. § 3505, which applies to all federal agencies.  Those requirements are additional actions that must occur prior to a federal agency making a federal expenditure or providing financial assistance for work within the CBRS.  The statutory requirements do not establish specific disaster assistance eligibility requirements.  As FEMA did not find the work eligible for PA funding, it was not required to meet the consultation and consistency requirements.

The Applicant also argues that Congress intended the CBRA’s statutory exemption of TE-40, being numbered S05 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.”[43]  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.[44]  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.”[45]  Consequently, it appears Congress only intended for agencies to broadly interpret the “types of stabilization projects that may be undertaken” under the exemption.[46]  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.[47] 

Lastly, the Applicant contends that TE-40 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 1571 was erroneous as there is no other federal agency (OFA) responsible for funding the subject disaster-related repairs.[48]  The Applicant argues that the cooperative agreement between the EPA and the Applicant does not convey any specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages;[49] the EPA, 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 at this site and others 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.”[50]  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.”[51]  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.”[52]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[53] 

Further, a June 26, 2015 letter from the 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.”[54]  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.  A Memorandum of Agreement (MOA) between the EPA, USACE, and DNR describes additional responsibilities of the USACE and the EPA to fund long-term operation, maintenance, repair and rehabilitation of the project.[55]  To carry out these long-term responsibilities, the EPA certifies invoices received by DNR and submits them to the Chair of the Task Force to request funding.[56]  This mechanism of funding long-term maintenance, repairs and rehabilitation further emphasizes USACE’s specific authority for this project.

The Applicant also argues FEMA’s previous approval of work at this site for sand fencing repair contradicts an assertion that the work is the responsibility of another federal agency.[57]  The funding of such repairs was in error and FEMA will take appropriate action to correct the matter.[58]

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.

Conclusion

FEMA finds that Louisiana’s coastal barrier islands, 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, TE-40 cannot be considered a “facility” because the Applicant failed to demonstrate that the barrier island 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.  Consequently, the RA was correct in denying $18,392,881.25 in beach and dune fill replacement. 

 


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

[2] 2009 La. Acts 523, 67-68 (https://www.legis.la.gov/Legis/ViewDocument.aspx?d=668806).

[3] Specifically, the Environmental Protection Agency as authorized by the CWPPRA.

[4] Project Worksheet 1571, Office of Coastal Protection and Restoration, Version 0 (June 9, 2016).

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

[6] 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).

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

[8] 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).

[9] Letter from Reg’l Adm’r, FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (July 31, 2015).

[10] 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. 12, 2015) (stating these main arguments as well as multiple supporting claims) [hereinafter Applicant Second Appeal Letter].

[11] Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, Federal Emergency Mgmt. Agency, at 5 (Dec. 10, 2015) [hereinafter Grantee Second Appeal Transmittal].

[12] Applicant Second Appeal Letter, at 9.

[13] Applicant Second Appeal Letter, at 10.

[14] Coastal Barrier Resources System Map, John H. Chafee Coastal Barrier Resources System, Timbalier Islands Unit S05 (3 of 3) (https://www.fws.gov/ecological-services/habitat-conservation/cbra/maps/a/22-019A.pdf) (Jan. 11, 2016).

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

[16] Id. § 3502(7).

[17] 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).

[18] 16 U.S.C. § 3502(7).

[19] 44 C.F.R. § 206.201(c).

[20] 42 U.S.C. § 5172(e) (including other costs that are in conformity with applicable codes, specifications, and standards).

[21] 44 C.F.R. § 206.201(j).

[22] Applicant Second Appeal Letter, at 10.

[23] Id. at 21.

[24] Id.

[25] Grantee Second Appeal Transmittal, at 6.

[26] 44 C.F.R. § 206.201(c).

[27] Id.

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

[29] Id. at 33.

[30] 2011 Operations, Maintenance, and Monitoring Report for Timbalier Island Dune/Marsh Restoration (TE-40) Project by CPRA Office of Coastal Protection and Restoration, at 9 (Dec. 2011).

[31] Id. at 10.

[32] Memorandum of Agreement between U.S. Envtl. Prot. Agency, U.S. Army Corps of Eng’rs, and La. Dep’t of Nat. Res., at 1-2 (Oct. 26, 2000).

[33] Id.

[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] Grantee Second Appeal Transmittal, at 5.

[40] 44 C.F.R. § 206.340.

[41] Id. § 206.343(a) (emphasis added).

[42] 16 U.S.C. § 3504(a)(3); 4 C.F.R. § 206.344(c).

[43] Applicant Second Appeal Letter, at 14.

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

[45] Id.

[46] Id.

[47] 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 14.  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 TE-40.

[48] Applicant Second Appeal Letter, at 2.

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

[50] 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).

[51] 16 U.S.C. § 3956(a).

[52] Id. § 3951.

[53] Id. § 3955.

[54] 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).

[55] Memorandum of Agreement between U.S. Envtl. Prot. Agency, U.S. Army Corps of Eng’rs, and La. Dep’t of Nat. Res., at 1-2 (Oct. 26, 2000).

[56] Id.

[57] Applicant Second Appeal Letter, at 8.

[58] 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.

Last updated May 28, 2020