Beaches - Environmental Compliance

Appeal Brief

Summary Paragraph

During the incident period from October 27, 2012 through November 8, 2012, storm surge, flooding, and wind caused by Hurricane Sandy inundated and damaged the Tiana Beach Recreation Area owned and operated by the Town of Southampton (Applicant).  FEMA wrote Project Worksheet 3917 to address repairs to five structures damaged by storm conditions and wave action.  FEMA determined that none of the facilities except for the wooden shed were covered under the existing facility exception to the Coastal Barrier Resources Act (CBRA) and are therefore not eligible for permanent work funding.  Under the CBRA only existing facilities that were constructed prior to October 18, 1982, are eligible for federal assistance.  FEMA obligated funding for the wooden shed in the amount of $7,761.98 and considered $237,194.43 to be ineligible repairs to the remaining structures.  The Applicant filed a first appeal by letter dated October 28, 2016 opposing FEMA’s determination that the fixed dock and wood decking structures were ineligible.  FEMA issued a first appeal decision on September 14, 2017, denying the Applicant’s appeal because the fixed dock and wood decking do not satisfy the existing facility exception of the CBRA, based on the photographs and other documents reviewed on appeal.  The Applicant filed a second appeal via letter dated October 27, 2017 arguing that the structures in question were not new construction, rather they were structures that existed prior to 1982 that were renovated in 2005. 

Authorities and Second Appeals

• • Title 44 Code of Federal Regulations (C.F.R.) §§ 206.342(c), 206.347(c)(5).
  • Public Assistance Guide, FEMA 322, at 133-134.
     

Headnotes

• • Existing roads, structures, or facilities that are consistent with the purposes of CBRA may be eligible for permanent work funding.  An existing facility is defined as a publicly owned or operated facility on which construction started on or before October 18, 1982.  For any unit added to the Coastal Barrier Resource System (CBRS) by amendment to the CBRA, the enactment date of such amendment is substituted for October 18, 1982. 
    •  Tiana Beach was added to the CBRS on November 16, 1990.
    •  The Applicant has not substantiated that the structures in question were present prior to November 16, 1990.
  • If a facility has been substantially improved or expanded since the date of enactment, it is not an existing facility.
    •  The Applicant submitted design plans which indicated that the existing structure was expanded in 2005.

Conclusion (Appeal decision issued 5/30/2019)

Due to the expansion in 2005, the fixed dock and wood decking are not existing facilities as described in the CBRA and are not eligible for federal disaster assistance in the amount of $155,384.58.  Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period from October 27, 2012 through November 8, 2012, storm surge, flooding, and wind caused by Hurricane Sandy inundated and damaged the Tiana Beach Recreation Area owned and operated by the Town of Southampton (Applicant).  Storm conditions and wave action damaged a fixed dock and substructure, split rail fencing, a wooden storage shed, a floating dock and wood decking over a beach bulkhead.  

The Coastal Barrier Resources Act (CBRA) seeks to minimize impacts to natural ecosystems within the protected Costal Barrier Resource System (CBRS).  Only facilities that meet the criteria for “existing facilities” within the CBRS^[1] are eligible for permanent work funding.  After a review of PW 3917 by the U.S. Fish and Wildlife Service (USFWS), FEMA determined that, except for the wooden shed, the facilities do not fall under the “existing facility” exception to the CBRA and are therefore not eligible for permanent work funding.

In a Determination Memorandum signed June 2, 2016, FEMA found that the Tiana Beach project is located within CBRS Unit F-13, and cannot be considered an “existing facility” under Title 44 Code of Federal Regulations (44 C.F.R.) § 206.347(c)(5), with the exception of the wooden storage shed built in 1979.  Additionally, FEMA found that the work performed does not meet the exceptions set out in 44 C.F.R. § 206.345, nor does it qualify as permissible emergency action as prescribed in 44 C.F.R. § 206.346.  FEMA stated that the facilities under PW 3917 were determined by the USFWS to be inconsistent with the CBRA and the Coastal Barrier Improvement Act (CBIA).  FEMA prepared Project Worksheet (PW) 3917 to address repairs to the five structures, but only obligated $7,761.98 for the wooden shed.  The remaining repairs in the amount of $237,194.43 were considered ineligible.

First Appeal

The Applicant filed a first appeal by letter dated October 28, 2016^[2] opposing FEMA’s determination that the fixed dock and wood decking were ineligible.[3]  The Applicant requested $155,893.37 for repairs to the fixed dock, wood decking over the bulkhead, and engineering and supervision costs.  The Applicant asserted that the fixed dock and bulkhead were installed prior to 1982 and provided an aerial photograph taken in 1976 that it asserted showed the fixed dock and bulkhead were present at that time.

FEMA sent a Final Request for Information (RFI) on May 30, 2017, informing the Applicant that it had not yet submitted documentation demonstrating that the Tiana Beach Recreation Center’s fixed dock and wood decking over bulkhead were in existence prior to October 18, 1982.  FEMA requested additional information such as a self-authenticating, time-stamped map, photograph, or other document that shows the fixed dock or wood decking at Tiana Beach prior to October 18, 1982.

The Grantee responded to the RFI on June 26, 2017, arguing that the photographic evidence in the record supports the existence of the fixed dock and bulhead prior to 1982.  Further, the Grantee provided that the Applicant’s Parks Maintenance Supervisor has lived in the town since 1965, and can attest to the existence of the structures when he learned to swim there in 1972.

FEMA issued a first appeal decision on September 14, 2017, denying the Applicant’s appeal because the fixed dock and wood decking do not satisfy the “existing facility” exception of the CBRA, based on the photographs and other documents reviewed on appeal.  FEMA reviewed all photographic documentation provided and determined that the Applicant had not conclusively established that the fixed dock or wood decking over the bulkhead existed prior to 1982.  FEMA noted that the first photograph in which the fixed dock is discernible is a 2006 image used during the project’s Environmental and Historic Preservation review.

Second Appeal

The Applicant filed a second appeal via letter dated October 27, 2017 arguing that the structures in question were not new construction; rather they were structures that existed prior to 1982 that were renovated in 2005.  Specifically, the bulkhead was renovated to comply with current building practices.  The swim deck was resurfaced with composite decking in order to comply with Americans with Disabilities Act (ADA) requirements.  The pressure treated bulkhead and swimming deck were replaced with a gabion revetment system and composite decking.  The Applicant argues that the fixed dock was not moved but the new bulkhead was moved within 18 inches of the old one.  The Applicant asserts its aerial photograph from 1976 shows the bulkhead configuration that was present.  It states that the photo shows that the bulkhead moved closer to the road but the fixed dock is in the same position as the original one and is therefore not a new construction.  

The Grantee forwarded the Applicant’s request on November 16, 2017.  The Grantee recommends that FEMA approve an additional $153,146.00[4] for the fixed dock and wood decking, because the Applicant followed all permitting processes and applicable codes & standards, including submitting the project for review by the U.S. Army Corps of Engineers and compliance with the ADA.

Discussion

The CBRA establishes a system of protected coastal areas known as the CBRS.[5]  These two Acts minimize impacts to unique natural ecosystems by restricting federal expenditures and financial assistance that encourage development in certain defined areas of the coastal barriers which are identified on FEMA’s Flood Insurance Rate Maps.[6]  FEMA has promulgated regulations at 44 C.F.R. Part 206, Subpart J to implement the CBRA. 

No financial assistance may be made available under the Public Assistance Program for any purpose within the CBRS unless it falls within one of the exeptions listed at 44 C.F.R. § 206.345.   Existing roads, structures, or facilities that are consistent with the purposes of the CBRA may be eligible for permanent work funding.[7]  An “existing facility” is generally defined as a publicly owned or operated facility on which construction started on or before October 18, 1982.[8]  However, for any unit added to the CBRS by amendment to the CBRA, the enactment date of such amendment is substituted for October 18, 1982.[9]  If a facility has been substantially improved or expanded since the date of enactment, it does not meet the criteria for an exception to CBRA restrictions for an “existing facility”.[10]  Expansion means changing a facility to increase its capacity or size.[11]

FEMA based the first appeal decision to deny costs for the repairs on the fact that the Applicant had not substantiated with documentation that the fixed dock and wood decking were present prior to October 18, 1982, believing that the site was part of the CBRS when the CBRA was first enacted.  However, Tiana Beach (Unit F-13) was added to the CBRS on November 16, 1990.^[12]  Pursuant to FEMA regulations, to be eligible for assistance the Applicant must substantiate that the structures were present prior to November 16, 1990, the actual date on which the site was added to the CBRS.  For this reason, FEMA issued an RFI on February 6, 2019, requesting that the Applicant provide any documentation that would substantiate that the fixed dock and wood decking were constructed prior to November 16, 1990.  FEMA also sought documentation revealing the type and extent of renovations made to the fixed dock and wood decking beginning in 2004.

The Applicant responded in a letter sent March 4, 2019, providing aerial and recreational photographs from 1982, as well as contruction design plans from 2005.  The documentation revealed that prior to 2005, there was a bulkhead structure outlining the bayside beach from which guests would engage in swimming lessons, but there was not a fixed dock as the Applicant previously asserted.  Design plans for the 2005 renovation indicated that the existing bulkhead was to be demolished,[13] and the Applicant confirmed that the “existing timber bulkhead used for the swim lessons was to be removed and replaced in the same location.”[14]  Aerial photographs in 2006 indicate the first appearance of a newly constructed fixed dock complete with wood decking over the bulkhead.[15]

The Applicant has not demonstrated that the fixed dock and wood decking were present prior to November 16, 1990.  Even if the Applicant may have believed that the existing bulkhead structure was a fixed dock, that structure was expanded during reconstruction in 2005.  Design plans and aerial photographs indicate that the surface area of the existing bulkhead structure increased in size and shape during renovations to allow a larger surface area. This increase in size and capacity meets the regulatory definition of an expansion. Therefore, the fixed dock and wood decking do not meet the criteria for the exception for “existing facilities” as described in the CBRA and are not eligible for federal disaster assistance in the amount of $155,384.58.

Conclusion

The Applicant has not demonstrated that the fixed dock and wood decking were present prior to the designation of its property as part of the CBRS on November 16, 1990.  In addition, renovations made in 2005 expanded the original structure, therefore they do not meet the criteria for the exception to CBRA as “existing facilities” and are not eligible for federal disaster assistance in the amount of $155,384.58.  The appeal is denied.