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Beaches – Direct Result of the Disaster – 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#1513
Date Signed2017-07-27T00:00:00

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 Caminada Headland a “facility” because it was not improved or maintained.  Funding is also precluded because there is a potential duplication of benefits.

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 caused damage to a sub-base platform composed of load-bearing sand, which was part of the Caminada Headland.  At the time of the disaster, the Applicant was performing the design work for a beach and dune restoration project (BA-143).  Construction of the project occurred after the disaster and was partially funded by the National Fish and Wildlife Foundation (NFWF).  FEMA prepared Project Worksheet 1513 to document the work, finding it ineligible because the Caminada Headland is an unimproved natural feature, privately owned, and the work was the responsibility of another federal agency.  On first appeal, the Applicant argued that: (1) NFWF is not a federal agency, and thus cannot have specific authority to repair the damages in question under Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act); (2) FEMA’s denial of eligibility on the basis of purported legal authority of another federal agency is contrary to Section 312 of the Stafford Act and FEMA’s regulations and policies; (3) previous preservation, maintenance, and restoration efforts demonstrate that the Caminada Headland is an improved natural feature; and (4) the Applicant is legally responsible for the work.  The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) the list of prior projects provided by the Applicant did not establish that the Caminada Headland was an improved and maintained natural feature; (2) there was insufficient documentation to show that the Applicant was legally responsible for the project; and (3) BA-143 is funded by the NFWS, therefore FEMA funding would constitute a duplication of benefits under Stafford Act § 312.  On second appeal, the Applicant argues that FEMA’s denial is erroneous because: (1) FEMA misinterprets the source of funding for BA-143; (2) the Applicant is legally responsible for repairs to the Caminada Headland; and (3) the Caminada Headland is an eligible “facility.” 

Authorities and Second Appeals

  • Stafford Act §§ 102(9)(C), 312(a),(c), 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, 29, 33, 41.
  • DAP9580.8, Eligible Sand Replacement on Public Beaches (Oct. 1, 2009).
  • FEMA Second Appeal Analysis, Louisiana Department of Natural Resources Isles Dernieres Restoration Projects, FEMA-1437-DR-LA (Jan. 25, 2005)

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.”
  • 44 C.F.R. § 206.201(c) requires natural feature to be improved and maintained to be eligible.
    • The Caminada Headland is not a “facility” because it was not improved.
  • Stafford Act Section 312 prohibits applicants from receiving duplicate financial assistance and makes applicants liable for benefits available from another source 
    • The Applicant did not provide documentation to differentiate between sand required to complete BA-143, which was funded by NFWF, and sand requested as a result of Hurricane Isaac.

 

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) 1513 – Beaches – Direct Result of the Disaster – 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 $8,255,888.68 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 there is a potential duplication of benefits.  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 that is part of the Caminada Headland.  At the time of the disaster, the Office of Coastal Protection and Restoration (Applicant) was performing the design work for a beach and dune restoration project (BA-143) on the Caminada Headland.  The Applicant initially sought funding for a portion of BA-143 through the Natural Resource Damage Assessment (NRDA), related to the Deepwater Horizon incident.  However, the Applicant withdrew BA-143 from NRDA consideration and later sought funding by the National Fish and Wildlife Foundation (NFWF), a 501(c)(3) non-profit organization, to complete the project.

FEMA prepared Project Worksheet (PW) 1513, Category G, to document replacement of approximately 433,333 cubic yards of sand for the sub-base platform, composed of load-bearing sand, in anticipation of construction of BA-143 directly atop the platform.  FEMA found $8,255,888.68 of costs claimed for sand replacement ineligible because: (1) funding to repair the Caminada Headland is the responsibility of another federal agency; (2) the Caminada Headland is an unimproved natural feature; and (3) the Caminada Headland is privately owned.[1]

First Appeal

The Applicant appealed FEMA’s determination on August 16, 2013.  The Applicant argued that: (1) no federal agency is legally responsible for the work in question nor has FEMA identified a responsible agency; (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) previous preservation, maintenance, and restoration efforts demonstrate that the Caminada Headland is an improved natural feature; and (4) the Applicant is legally responsible for the work.[2] 

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on October 15, 2013.  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 argued that the Caminada Headland is a maintained and improved feature, and that NRDA funding for BA-143 does not prohibit FEMA from providing funding.[3]

On March 18, 2015, FEMA sent a Final Request for Information (RFI) to the Grantee, requesting: (1) evidence of legal responsibility for the project area; (2) design, construction, and as built drawings for other beach and dune projects prior to Hurricane Isaac within the BA-143 project area; (3) a maintenance plan for the Caminada Headland that includes funding; (4) subsequent re-nourishment projects for BA-143 with studies, plans, and drawings; (5) an explanation of how Hurricane Isaac claims differ from Hurricane Katrina claims; (6) a narrative explaining how the Applicant’s claim accounted for annual beach erosion; and (7) documentation that another Federal agency does not have funding authority for BA-143.[4]  In its response, the Applicant indicated it had submitted all required documentation.  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.[5] 

The FEMA Region VI Regional Administrator (RA) denied the first appeal on August 6, 2015.  The RA found that: (1) the list of prior projects provided by the Applicant did not establish that the Caminada Headland is an eligible beach because it was an unimproved and unmaintained natural feature; (2) there was insufficient documentation to show that the Applicant was legally responsible for the project; and (3) NFWF awarded $144.5 million in funding to complete BA-143, therefore FEMA funding would constitute a duplication of benefits under Stafford Act § 312.[6]

Second Appeal

The Applicant submitted its second appeal by letter dated October 12, 2015.  The Applicant argues: (1) FEMA’s denial is erroneous because it misinterprets the source of funding for BA-143; (2) the Applicant is legally responsible for repairs to the Caminada Headland;[7] and (3) the Caminada Headland is a “facility” eligible for Public Assistance (PA).[8] 

The Grantee transmitted the second appeal to FEMA Region VI on December 10, 2015 and supplemented the Applicant’s main arguments.  The Grantee asserts that: (1) even if another federal agency had legal responsibility to provide assistance, 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; and (2) the NFWF is a non-federal third party, therefore funds from NFWF do not present a duplication of benefits under DAP 9525.3 Duplication of Benefits – Non-Government Funds.  The Grantee also argues that the Caminada Headland is a unit connected to a Coastal Barrier Resources System (CBRS) and therefore undergoes a separate and distinct eligibility analysis based solely on the consultation and consistency requirements of Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.348 and 206.349.[9]

Discussion

Facility Eligibility of Louisiana’s Coastal Barrier Resources System

The Applicant claims that FEMA’s denial of eligibility of PW 1513 is incorrect because the Caminada Headland is a facility eligible for PA.[10]  It argues that FEMA failed to recognize the Caminada Headland as part of the CBRS, a “system,” and that all of its component parts comprise an eligible “facility.”[11]

FEMA recognizes that the Caminada Headland is part of the Barataria Basin Barrier Shoreline,[12] and falls within S03 on the Louisiana CBRS maps.[13]  FEMA notes that the Coastal Barrier Resources Act (CBRA) uses the term “system” to mean the barrier resource system defined in the Act,[14] which is comprised of “undeveloped” system units.[15]  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.”[16]  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].”[17]  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.”[18]  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.”[19]  FEMA regulation embodies this by requiring that permanent work restore an eligible facility on the basis of its predisaster design and applicable standards.[20]  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 not designed.

Facility Eligibility of the Caminada Headland as a Natural Feature

The Applicant alternatively argues that the Caminada Headland is eligible for PA funding because it is an improved and maintained natural feature.[21]  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.”[22]  For an “improved and maintained natural feature”[23] 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.”[24]  The constructed improvement must result in a measurable difference in performance over the unimproved natural feature.[25]  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.[26]  Work to correct inadequacies that existed prior to the disaster is not eligible.[27]  The Caminada Headland is a barrier headland, which is a natural feature, and held to the requirement of being improved and maintained. 

The Applicant has failed to demonstrate that the Caminada Headland has been improved and regularly maintained.  The Applicant has not documented that, prior to the disaster, the Caminada Headland underwent a construction project that established a specific design for the beach and dunes and measurably improved its overall performance.  The list of sporadic projects (e.g. sinking barges, vegetative plantings, limited dune restoration, etc.), that the Applicant provided on first appeal, does not establish a comprehensive design.[28]  Rather, the Caminada Headland existed in a natural state, as evident from the severe erosion that converted much of the land into open water and allowed the barrier beach to be over washed and breached in many locations.[29]  Even if assuming a comprehensive design once existed, the work to repair the Caminada Headland is ineligible because its “severely degraded” state demonstrates significant preexisting damage and deficiencies, as well as inadequate maintenance.[30]

The Applicant also argues that the Caminada Headland has been maintained through projects (past and ongoing) that have improved and maintained the “system” of barrier islands, of which it is a part.[31]  It asserts that system wide projects equate to maintenance for the Caminada Headland.  Specifically, it cites Louisiana’s 2002 Barrier Island Comprehensive Monitoring Program (BICM) to provide long-term data about the system,[32] 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.[33]  The Applicant’s argument is flawed and does not cite any law or policy for support.  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 Caminada Headland, which is the facility in question.

Eligibility of the Caminada Headland as an Improved Beach

To the extent that the Applicant and Grantee request consideration of the work in accordance with FEMA regulatory[34] and policy requirements[35] 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 demonstrated that the Caminada Headland was designed to a certain elevation, width, and slope with sand of a particular grain size prior to the disaster.[36]  Additionally, as discussed in the preceding subsection, the Applicant has not shown it has a maintenance program involving periodic sand renourishment nor routine maintenance to the Caminada Headland.  Finally, the Applicant has not established that the Caminada Headland 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 the Caminada Headland 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.[37]  The Grantee’s argument, however, is not compelling.  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.”[38]  FEMA’s regulations, in accordance with the stated purpose of the CBRA, places “limitations” on the provision of assistance for the permanent restoration of facilities located in the CBRS.[39]  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 a portion of the Caminada Headland is a unit part of the CBRS, numbered S03 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.”[40]  FEMA exercises this authority 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 the Caminada Headland, numbered S03 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.[41]  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.[42]  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.”[43]  Consequently, it appears Congress only intended for agencies to broadly interpret the “types of stabilization projects that may be undertaken” under the exemption.[44]  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.[45] 

Lastly, the Applicant contends that the Caminada Headland 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.

Potential Duplication of Benefits

Stafford Act Section 312 prohibits applicants from receiving duplicate financial assistance and makes applicants liable for benefits available from another source,[46] including agreements or contracts.[47]  Applicants are also liable for benefits that are available.[48] 

On first and second appeal, the Applicant explained that BA-143 is being funded by a grant from the NFWF, a 501(c)(3) non-profit organization,[49] and that due to Hurricane Isaac, design modifications and an additional 433,333 cubic yards of sand were required to complete BA-143.[50]  While the Applicant provided final design drawings and bid documentation to support its argument, the documents do not differentiate between the sand required to complete BA-143 and the additional sand requested as a result of Hurricane Isaac.  Nor does the documentation demonstrate that the Applicant did not receive funding from the NFWF for the additional sand.  The Applicant has not submitted for inclusion in the administrative record any funding agreements, contracts, or other correspondence which could demonstrate that it has not received funding from NFWF for this work.  Given the lack of information and a highly plausible duplication of benefits, the RA appropriately determined that PA funding is prohibited.

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, the Caminada Headland cannot be considered a “facility” because the Applicant failed to demonstrate that the barrier headland has been improved and maintained.  Finally, funding is also precluded by the Stafford Act because there is a potential duplication of benefits.  Consequently, the RA was correct in denying $8,255,888.68 in beach fill replacement. 

 


[1] Project Worksheet 1513, Office of Coastal Protection and Restoration, Version 0 (June 8, 2016).

[2] Letter from Counsel, Coastal Protection and Restoration Authority, to Deputy Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Aug. 16, 2013).

[3] Letter from State Coordinating Officer, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Reg’l Adm’r, FEMA Region VI (Oct. 15, 2013).

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

[5] 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 3, 2015).

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

[7] The Applicant’s argument regarding the legal responsibility of another federal agency is not addressed in this analysis because the RA did not make a determination or deny the first appeal on this issue.  Related second appeal decisions, however, have found that the Coastal Wetlands Planning, Protection and Restoration Act of 1990, 16 U.S.C. §§ 3951-3956 (2010), creates an ongoing Federal program to specifically address the restoration of barrier islands.  See FEMA Second Appeal Analysis, Office of Coastal Protection and Restoration, FEMA-4080-DR-LA (May 11, 2017).

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

[9] 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 3 (Dec. 10, 2015) [hereinafter Grantee Second Appeal Letter].

[10] Applicant Second Appeal Letter, at 3.

[11] Id.

[12] Louisiana Coastal Area Barataria Basin Barrier Shoreline Restoration Final Integrated Construction Report and Final Environmental Impact Statement, at 1-1 (March 2012).

[13] Coastal Barrier Resources System Map, Caminada Unit S03 (1 of 3) (https://www.fws.gov/CBRA/Maps/CBRS /445.pdf) (Oct. 24, 1990).

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

[15] Id. § 3502(7).

[16] 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).

[17] 16 U.S.C. § 3502(7).

[18] 44 C.F.R. § 206.201(c).

[19] 42 U.S.C. § 5172(e) (including other costs that are in conformity with applicable codes, specifications, and standards).

[20] 44 C.F.R. § 206.201(j).

[21] Applicant Second Appeal Letter, at 14.

[22] 44 C.F.R. § 206.201(c).

[23] Id.

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

[25] Id.

[26] Id. at 33.

[27] Id. at 29.

[28] 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.”).

[29] State of Louisiana Coastal Protection and Restoration Authority, NRDA Caminada Headland Beach and Dune Restoration Increment – II State Project No. BA-143 Final Design Plans, at 21-26 (Mar. 2013).

[30] U.S. Army Corps of Engineers, Louisiana Coastal Area Barataria Basin Barrier Shoreline Restoration Final Integrated and Construction Report and Final Environmental Impact Statement, at vii (Mar. 2012).

[31] Applicant Second Appeal Letter, at 14.

[32] Id. at 15.

[33] Id.

[34] 44 C.F.R. § 206.226(j).

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

[36] Id. at 3.

[37] Grantee Second Appeal Letter, at 3.

[38] 44 C.F.R. § 206.340.

[39] Id. § 206.343(a).

[40] 16 U.S.C. § 3504(a)(3) (emphasis added); 44 C.F.R. § 206.344(c) (emphasis added).

[41] Applicant Second Appeal Letter, at 8.

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

[43] Id.

[44] Id.

[45] 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 7.  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 the Caminada Headland.

[46] 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”).

[47] 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).

[48] Stafford Act § 312(c).

[49] Applicant Second Appeal Letter, at 1.

[50] The Applicant claims 660,000 cubic yards while FEMA estimates 433,333 cubic yards in PW 1513.

Last updated May 28, 2020