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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#1565
Date Signed2017-08-09T00:00:00

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 West Belle Pass Headland Restoration Project (TE-52) a “facility” because the Applicant failed to demonstrate regular maintenance.  Funding is also precluded because another Federal program is specifically charged with the restoration of these islands and headlands.

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period Aug. 26 to Sept. 10, 2012 caused damage to sand fencing, a beach and dunes, as well as a primary containment dike on TE-52.  FEMA prepared Project Worksheet 1565 to document the repair work, finding the work ineligible due to a lack of a regular maintenance plan, responsibility of another federal agency, and the project was under construction at the time of the incident.  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) TE-52 is an eligible nonstructural project for shoreline stabilization designed to mimic, enhance, or restore natural stabilization systems per 44 C.F.R. § 206.345, (4) TE-52 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, and (5) FEMA’s denial of eligibility on the basis that construction was not complete at the time of the disaster is contrary to FEMA policy.  The FEMA Region VI Regional Administrator denied the first appeal finding that the natural features of TE-52 were not maintained and thus failed to meet the regulatory requirements to be considered an improved beach, the project was under construction and under the authority of the National Marine Fisheries Service (NMFS) Federal Contracting Officer at the time of the disaster, the cost share provision of the Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA) does not allow FEMA to fund the state share, projects must meet eligibility requirements of 44 C.F.R. Part 206 subpart H before subpart J can be considered, and that FEMA is prohibited from funding the repairs due to the Applicant’s agreement with the NMFS to construct TE-52.  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-52 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-52 is not a “facility” because the Applicant failed to demonstrate that the barrier 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.

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) 1565 – 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 $2,653,657.34 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.  More specifically, it has not been demonstrated that the headland 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 and directing FEMA Region VI’s Regional Administrator to deobligate $13,211.50 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, dunes, and an earthen containment dike on the West Belle Pass Barrier Headland.  At the time of the disaster, the barrier headland was being modified by the West Belle Pass Headland Restoration Project (TE-52) with funding provided by the National Oceanic and Atmospheric Administration National Marine Fisheries Service (NMFS).  This was accomplished through a cooperative agreement with the Louisiana Department of Natural Resources (Applicant)[1] under the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA).[2]  After the disaster, the Applicant authorized a change order to the construction contract to repair the damaged items.[3]  The project was substantially completed on November 26, 2012 and final acceptance occurred on March 12, 2013.[4] 

The West Belle Pass Barrier Headland was partially modified by a previous restoration project (TE-23) in 1998.  TE-23 included the dredging of approximately 1.5 million cubic yards of material to build 184 acres of marsh on the west side of Belle Pass, nourishing the beach with 240,000 cubic yards of material, placing 17,000 feet of riprap on the west side of Belle Pass, constructing a water control structure in the Evans Canal, and plugging various other canals.[5]  A small portion of the TE-23 project overlaps with the western portion of TE-52.  TE-23 was funded through a cost sharing agreement between the U.S. Army Corps of Engineers and the Coastal Protection and Restoration Authority.  State responsibilities for West Belle Pass Barrier Headland were transferred from the Office of Coastal Restoration and Management to the Applicant in 2009.[6]

Following Hurricane Isaac, FEMA prepared Project Worksheet (PW) 1565, Category G to document replacement of approximately 3,675 feet of sand fencing, 263,103 cubic yards of beach and dune fill and 208 cubic yards of earthen containment dike.[7]  FEMA found repairs to the sand fencing to be eligible in the amount of $13,211.50 but found $2,653,657.34 in beach and dune fill replacement and containment dike repairs ineligible because (1) funding to repair TE-52 is the responsibility of another federal agency,[8] and (2) the Applicant did not demonstrate the improved beach, dunes, and containment dike were regularly maintained.[9]

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 because of the legal authority of another federal agency 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) TE-52 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); (4) a maintenance plan should not be essential for eligibility because TE-52 does not require routine maintenance to function as designed, or FEMA should recognize inspection reports as sufficient to establish pre-disaster condition; and (5) FEMA’s denial of eligibility on the basis that construction was not complete at the time of the disaster is contrary to FEMA policy.[10]

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on April 3, 2014.  The Grantee’s forwarding letter emphasized that the work is not the responsibility of another federal agency, stressing that FEMA has not completed its obligation to coordinate with other agencies to determine legal responsibility.  The Grantee also requested the Applicant be provided with an opportunity to present information and documentation demonstrating TE-52 had a routine maintenance plan.[11]

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) cost sharing agreements; (3) construction contracts; (4) official notifications of project completion; (5) inspection reports, maintenance plans, maintenance budgets, long-term monitoring, operations and maintenance agreements; and (6) documentation establishing that the beach is an engineered beach.[12]  In its response, the Applicant indicated it had submitted all required documentation and requested FEMA review the Cost Share Agreement.  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.[13] 

The FEMA Region VI Regional Administrator (RA) denied the first appeal on August 7, 2015.  The RA determined that: (1) the natural features of TE-52 were not maintained, and thus failed to meet the regulatory requirements for improved beaches at the time of the disaster; (2) TE-52 was federally funded by NMFS under the CWPPRA; (3) the project was under construction and was not the Applicant’s legal responsibility at the time of the disaster; (4) the cost share provision of the CWPPRA does not allow FEMA to fund the state share; (5) TE-52 is not an eligible facility; and (6) projects must meet Public Assistance (PA) eligibility requirements before determining whether the project is compliant with the CBRA.[14]  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 its second appeal by letter dated October 19, 2015.  The Applicant argues: (1) FEMA’s denial is erroneous as there is no other federal agency responsible for funding these disaster-related repairs; (2) TE-52 is a “facility” eligible for PA; and (3) TE-52 is an improved and maintained natural feature.[15]  The Applicant also provided a provision from the construction contract to show that it, not the contractor was legally responsible for the damages.

The Grantee transmitted the second appeal to FEMA Region VI on December 17, 2015 and supplemented the Applicant’s main arguments by asserting that: (1) repairs were not the specific responsibility of another federal agency; (2) TE-52 is an eligible facility; and (3) 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. 

Discussion

Facility Eligibility of Louisiana’s Coastal Barrier Resources System

The Applicant claims that FEMA’s denial of eligibility of PW 1565 is incorrect because TE-52 is a facility eligible for PA.[16]  It argues that FEMA failed to recognize TE-52 as part of the CBRS, a “system,” and that all of its component parts comprise an eligible “facility.”[17]

FEMA recognizes that TE-52 is part of the barrier island-shoreline system of east Timbalier Bay,[18] numbered S04 on the Louisiana CBRS maps.[19]  FEMA notes that the CBRA uses the term “system” to mean the barrier resource system defined in the Act,[20] which is comprised of “undeveloped” system units.[21]  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.”[22]  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].”[23]  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.”[24]  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.”[25]  FEMA regulation embodies this by requiring that permanent work restore an eligible facility on the basis of its predisaster design and applicable standards.[26]  Louisiana’s system of barrier islands lack a predisaster design because they are naturally occurring and their formations 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.

Facility Eligibility of TE-52 as a Natural Feature

The Applicant alternatively argues that TE-52 is eligible for PA funding because it is an improved and maintained natural feature.[27]  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-52.  Specifically it cites Louisiana’s 2002 Barrier Island Comprehensive Monitoring Program (BICM) to provide long-term data about the system,[28] and two bills passed by the Louisiana legislature (House Bills No. 429 and 1034) in 2004 establishing the Barrier Island Stabilization and Preservation Program, to select and prioritize maintenance projects.[29]  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-52 had a life expectancy of 20 years and did not require normal maintenance if performing its intended purpose.[30]

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.”[31]  For an “improved and maintained natural feature” to be eligible, the improvement must be based on a “documented design” and maintenance “must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.”[32]  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.[33]  TE-52 is a barrier headland, which is a natural feature, and held to the requirement of being improved and maintained.

The Applicant’s argument that maintenance of one piece of a “system” constitutes maintenance of the entire system is flawed.  For instance, if one segment of a road system is maintained regularly, e.g., a bridge, while all other segments are allowed to deteriorate into disrepair, it is illogical to find that the entire road system was regularly and properly maintained.  Likewise, maintenance performed elsewhere on other barrier islands within the CBRS does not equate to maintenance on TE-23 or TE-52, which are the facilities in question. 

When considering West Belle Pass Barrier Headland individually, the administrative record does not demonstrate that TE-23 was regularly maintained prior to disaster or that TE-52 has been maintained since the disaster to preserve the designed improvements.  The Project Fact Sheet for TE-23 notes that “operation and maintenance are scheduled for the future”[34] and the Environmental Assessment for TE-52 notes that the project “will undergo maintenance of the sand fences and vegetative plantings during the 20-year project lifespan, as warranted and as funds are available.”[35]  Also, FEMA initially determined the sand fencing repairs to be eligible based on “previously approved claims” for other similar declared disasters[36] and the Applicant’s stated intent to maintain sand fencing over the twenty-year life of the project.[37]  Despite these statements of intent, the Applicant has not provided any documentation, such as a maintenance schedule, budget or invoice, to demonstrate that TE-23 or TE-52 have actually been maintained.

On the contrary, the administrative record contains documentation demonstrating that TE-52 is intended not to be maintained and will return to being a natural feature.  The Applicant has provided design drawings for TE-52’s initial construction; however, these design standards will not be maintained.  TE-52 will degrade over its 20 year life span and eventually return to a similar pre-construction “condition.”[38]  More specifically, the goal of TE-52 is to “[p]revent breaching along 9,300 feet of the headland over the 20-year project life”[39] by placing “advanced fill, which is the portion of the beach cross-section that is expected to erode within 20 years.”[40]  Lack of funding also appears to be part of the problem, as the Applicant’s CWPPRA Adaptive Management Review Final Report clearly notes that “[d]ue primarily to funding constraints, barrier island projects typically do not include maintenance.”[41]  Finally, the Grantee’s claim that the project does not require maintenance once initial construction is complete lends support to the conclusion that TE-52 is a natural feature rather than an “improved and maintained” natural feature.  As such, TE-52 does not meet the definition of a facility under 44 C.F.R. § 206.201 because West Belle Pass Barrier Headland will continue to exist as a natural feature without any regular maintenance.[42]  As such, FEMA finds the proposed work ineligible for PA grant funding.[43]

Eligibility of TE-52 as an Improved Beach

To the extent that the Applicant and Grantee request consideration of the work in accordance with FEMA regulatory[44] and policy requirements[45] 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 provided design drawings to demonstrate that TE-52 was designed to a certain elevation, width, and slope, but they do not specify a particular grain size.[46]  Additionally, as discussed in the preceding subsection, the Applicant has not demonstrated a maintenance program involving periodic sand renourishment nor routine maintenance for TE-52.  Finally, the Applicant has not established that TE-52 or TE-23 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 Applicant argues that Congress intended the CBRA’s statutory exemption of TE-52, being numbered S04 on the Louisiana CBRS maps, to be interpreted broadly so that federal agencies provide funding to address the serious erosion problems facing Louisiana’s coastline through stabilization and erosion control projects in units depicted on maps S01 through S11.[47]  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.[48]  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.”[49]  Consequently, it appears Congress only intended for agencies to broadly interpret the “types of stabilization projects that may be undertaken” under the exemption.[50]  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.[51]

Lastly, the Applicant contends that TE-52 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 1565 was erroneous as there is no other federal agency responsible for funding the disaster-related repairs in question.[52]  The Applicant argues that the cooperative agreement between the NMFS and the Applicant does not convey specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages;[53] 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.”[54]  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.”[55]  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.”[56]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[57] 

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.”[58]  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.  Accordingly, FEMA finds that pursuant to the plain language of CWPPRA, the responsibility for this proposed work rests with another federal agency.  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.

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.[59]  The funding was in error and FEMA will take appropriate action to correct the matter.[60]

Project Under Construction During Incident Period and Duplication of Benefits

To be eligible for PA funding, an eligible applicant must be responsible for the work.[61]  Facilities under construction at the time of the disaster are generally not eligible for PA because they are the responsibility of the contractor until the owner has accepted the work as complete.[62]  However, repairs may be eligible if the contract places responsibility on the applicant during the construction period or the applicant accepted the work as complete prior to the disaster.[63]  FEMA’s PA policy regarding facilities under construction is not applicable in this instance because, as established in the previous subsections, TE-52 is an unimproved natural feature and therefore not an eligible facility.  Therefore, an analysis of the construction contract is not necessary.

Stafford Act Section 312 specifically prohibits applicants from receiving duplicate financial assistance and makes applicants liable for benefits available from another source,[64] including contracts.[65]  The cooperative agreement between the Applicant and NMFS creates an available source of duplicate funding.  The cooperative agreement in place at the time of the disaster provides that in instances of “problems, delays, or adverse conditions,” the Applicant must expeditiously inform, in writing, NMFS of the event and “any Federal assistance needed to resolve the situation.”[66]  NMFS is required to review and respond appropriately to the Applicant about the event.  The administrative record does not demonstrate the Applicant informed NMFS of the adverse conditions caused by Hurricane Isaac and its need for additional Federal assistance.  The Applicant should have pursued this available funding and without contrary documentation in the administrative record, FEMA must assume the benefit was available.  Moreover, FEMA is prohibited by CWPPRA from funding the Applicant’s TE-52 cost share, which must come from a non-federal source.[67]

Lastly, the cost sharing agreement for TE-23 also creates an available source of duplicate funding because the Applicant may submit receipts for “operation, maintenance, repair, replacement, rehabilitation and post-construction monitoring”[68] to the federal government and request reimbursement for 85 percent of these costs.[69]  The Applicant should have also pursued this available source of funding for the small portion overlapping with TE-52.

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.”[70]  FEMA issued FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, to implement these criteria.[71]  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.[72]  In this instance, FEMA is not prohibited from disallowing and deobligating the $13,211.50 in funding previously awarded for sand fencing because the Grantee has not drawn down funds for the work.  The Disaster Grant Closeout Procedures policy also allows for deobligation of funding that reflects a duplication of benefits.[73]  As discussed previously, funding was available from other sources.  Consequently, FEMA can deobligate $13,211.50 in funding previously awarded for sand fencing.

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-52 cannot be considered a “facility” because the Applicant failed to demonstrate that the barrier headland has been maintained.  Finally, funding is ineligible 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 $2,653,657.34 in beach and dune fill replacement and containment dike repairs.  FEMA will also deobligate an additional $13,211.50 in funding previously awarded in error to repair sand fencing.

 


[1] U.S. Dep’t of Commerce Fin. Assistance Award, Cooperative Agreement NA10NMF4630166 (Aug. 1, 2013) [hereinafter Cooperative Agreement].

[2] 16 U.S.C. §§ 3951-3956 (2010).

[3] Project Completion Report: West Belle Pass Barrier Headland Restoration Project, at 17 (Aug. 21, 2013) (The contract cost increased by $994,209.49 to add 74,745 cubic yards to the beach, install a 200 foot long sheet pile wall to close a dike breach, an additional 1,692 feet of sand fence were added, and damaged sand fencing was replaced or repaired.).

[4] Id. at 20.

[5] Louisiana Coastal Wetlands Conservation and Restoration Task Force, West Belle Pass Headland Restoration (TE-23) (October 2002) [hereinafter Project Fact Sheet].

[6] 2009 La. Acts 523, 67-68 (https://www.legis.la.gov/Legis/ViewDocument.aspx?d=668806).

[7] Project Worksheet 1565, Office of Coastal Protection and Restoration, Version 0 (Nov. 14, 2013) (PW 1554 was also prepared to document emergency repairs to the containment dike).

[8] Specifically, the National Oceanic and Atmospheric Administration and NMFS as authorized by the CWPPRA.

[9] Project Worksheet 1565, Office of Coastal Protection and Restoration, Version 0 (Nov. 14, 2013).

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

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

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

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

[14] Letter from Reg’l Adm’r, FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Aug. 7, 2015).

[15] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Dep. 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].

[16] Id. at 9.

[17] Id. at 10.

[18] Environmental Assessment, West Belle Pass Barrier Headland Restoration CWPPRA Project, prepared by National Marine Fisheries Service, at 1 (Aug. 2010) [hereinafter Environmental Assessment].

[19] Coastal Barrier Resources System Map, Timbalier Bay Unit S04 (https://www.fws.gov/ecological-services/habitat-conservation/cbra/maps/a/22-017A.pdf) (Jan. 11, 2016).

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

[21] Id. § 3502(7).

[22] 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).

[23] 16 U.S.C. § 3502(7).

[24] 44 C.F.R. § 206.201(c).

[25] 42 U.S.C. § 5172(e) (including other costs that are in conformity with applicable codes, specifications, and standards).

[26] 44 C.F.R. § 206.201(j).

[27] Applicant Second Appeal Letter, at 20.

[28] Id. at 22.

[29] Id.

[30] Letter from Assistant Dep. Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, FEMA, at 8 (Dec. 17, 2015).

[31] 44 C.F.R. § 206.201(c).

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

[33] Id. at 33.

[34] Project Fact Sheet, at 1.

[35] Environmental Assessment, at 7.

[36] PW 1565, Office of Coastal Protection and Restoration, Version 0, at 2 (Nov. 14, 2013).  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-35 and therefore cannot be considered movable personal property falling within the definition of “equipment.”

[37] Id.

[38] Environmental Assessment, at 12.

[39] Monitoring Plan, Project No. TE-52 West Belle Pass Barrier Headland Restoration, at 7-8 (Oct. 15, 2009).

[40] Environmental Assessment, at 12.

[41] CWPPRA Adaptive Management Review Final Report, at 35 (Dec. 20, 2002).

[42] 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.”).

[43] 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.)

[44] 44 C.F.R. § 206.226(j).

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

[46] Id. at 3.

[47] Applicant Second Appeal Letter, at 15.

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

[49] Id.

[50] Id.

[51] 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-52.

[52] Applicant Second Appeal Letter, at 3.

[53] 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.

[54] 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).

[55] 16 U.S.C. § 3956(a).

[56] Id. § 3951.

[57] Id. § 3955.

[58] 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).

[59] Applicant Second Appeal Letter, at 8.

[60] 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 36.

[61] 44 C.F.R. § 206.223(a)(3).

[62] PA Guide, at 28.

[63] Id.

[64] Stafford Act § 312(a).  See PA Guide, at 41 (stating “[a]n applicant may not receive funding from two sources for the same item of work”).

[65] City of Chicago v. FEMA, No. 08 CV 4234, 2013 U.S. Dist. LEXIS 41633, at 17-19 (N.D. Ill. Mar. 21, 2013) (holding that FEMA's determination that a contract for snow removal services constituted duplicate benefits was a reasonable interpretation of the Stafford Act).

[66] Cooperative Agreement, at 4.

[67] 16 U.S.C. § 3952(f)(3).

[68] Amendment to Cost Sharing Agreement between the Dep’t of the Army and La., Federal Project #FN215, at 4 (May 27, 1998).

[69] Id.

[70] Stafford Act § 705(c).

[71] 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).

[72] Id. at 4.

[73] Id. at 4, 6-7.

Last updated May 28, 2020