Beaches – Sand Replacement – Direct Result of Disaster

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From 2002 to 2012, Fourchon Beach in Lafourche Parish, Louisiana, was repeatedly impacted by at least six named storms.[1]  Cumulatively, these disasters displaced more than 100,000 cubic yards (CY) of sand and damaged an erosion control structure built in 1985 to protect Port Fourchon property and significant oil and gas infrastructure.  The erosion control structure consisted of stacked layers of concrete grout filled sacks called boudin bags, constructed along 5,000 feet of the shoreline as a protective barrier. 

In October 2013, the Greater Lafourche Port Commission (Applicant) completed an improved project partially funded through FEMA Public Assistance (PA) in multiple Project Worksheets (PWs).[2]  Those PWs were originally written to replace eroded sand and repair the damaged boudin bags as a result of the multiple disasters.  For the improved project, instead of repairing the boudin bags, the Applicant constructed a geotube system consisting of geosynthetic mesh containers to prevent erosion.  As part of the project, the Applicant also replaced 144,060 CY of sand, with at least 5,629 CY used to fill and protect the geotubes themselves.[3]  In March of 2015, a separate beach owner placed 1,416 CY of additional sand on top of an 840 linear foot section of the area to help protect the beach’s shoreline and dune.

According to the Applicant, from March to April 2016, storms and flooding once again eroded approximately one mile of the beach, exposing the geotubes and boudin bags to the potential for further damage.  FEMA prepared PW 710 to document the Applicant’s request to replace 149,350 CY of sand at a cost of $4,980,500.00.  However, in a determination memo dated January 10, 2017, FEMA found the project ineligible because the Applicant did not demonstrate that the damage claimed was a direct result of the declared disaster or that it had an established maintenance program in place to periodically renourish the beach with imported sand.  FEMA explained that it did not find that weather conditions were severe enough to cause the claimed damage or that the Applicant had adequately demonstrated the pre-disaster condition of the beach through its submitted photos.

First Appeal

On March 21, 2017, the Applicant filed its first appeal.[4]  The Applicant provided weather data, documentation of damages from a neighboring parish, pre-and post-disaster photos, and “as built” engineering drawings of the beach upon the completion of the geotube project in order to support a finding of disaster-related damage.  In response to FEMA’s findings regarding the maintenance of its beach, the Applicant cited to the one-time replacement of 1,416 CY of sand in 2015 in response to sand loss, and vegetative planting that would hold sand in place and make renourishment less necessary going forward.  However, the Applicant could not demonstrate a longer-term past maintenance program, because the area was continuously hit by disasters in the preceding decade, making beach maintenance impractical during that period.  The Applicant also represents that the beach was inaccessible for long periods after the completed geotube project due to circumstances beyond its control, also making maintenance difficult.

On May 19, 2017, the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the Applicant’s first appeal with a letter of support.  The Grantee highlighted language in FEMA policy permitting the use of design documents and renourishment history to estimate sand loss.  The Grantee then proposed that FEMA use the design documents from the geotube project to estimate the amount of sand subsequently lost.

In early 2018, FEMA sent a request for information and conducted a facilitated telephone discussion based on concerns about the Applicant’s legal responsibility and authority over the beach, and the possible duplication of benefits received and potentially still available from the Department of Interior.  FEMA also requested a copy of the Applicant’s Fiscal Year 2017 and 2018 budgets.  The Applicant provided additional documentation to address FEMA’s concerns. 

On February 13, 2019, FEMA’s Region VI Regional Administrator (RA) upheld FEMA’s initial determination in a first appeal decision.  The RA highlighted the Applicant’s concession that repeated disaster damage prevented it from establishing a long-term maintenance program for the beach and concluded that this made the project ineligible.  The RA also found that the Applicant had not demonstrated that the work in question is required as a direct result of the disaster.  The RA specifically noted that the 2013 geotube project involved the placement of 144,060 CY of sand, but that the Applicant’s current request exceeds that quantity by more than 5,000 CY.  The RA also found that the Applicant had not provided documentation such as pre-and post-disaster profiles to support a determination on the amount of sand lost, if any, as a result of the disaster.

Second Appeal

On April 12, 2019, the Applicant filed its second appeal, reiterating its first appeal arguments about disaster-related damage.  In addition, the Applicant states that this project should not be subject to eligibility requirements regarding maintenance of improved beaches, because the sand is not intended for a beach.  Instead, the sand requested is meant to secure the geotubes and protect them from ultraviolet rays.

In its letter of support dated June 4, 2019, the Grantee states that PW 710 was incorrectly classified as a “Category G” project.  In FEMA’s policy, “Category G” incorporates eligibility and maintenance requirements for improved beaches from FEMA regulations.  The Grantee states the PW should instead be categorized as a water control facility, which falls under “Category D” in FEMA policy and is subject to different maintenance requirements.  The Grantee further states that the Applicant provided sufficient documentation to demonstrate disaster-related damage, including pre- and post-disaster photos, and that there are no maintenances issues that would prevent a disaster-related finding once the PW is appropriately re-categorized.

Discussion

Beaches/Sand Replacement

A natural feature is an eligible facility under the Public Assistance program only if it is improved and maintained on a regular schedule to ensure the improvement performs as designed.[5]  The replacement of sand is only eligible on improved beaches if the Applicant has established and adhered to a maintenance program involving periodic renourishment with imported sand to preserve the original design.[6]  Emergency, one-time, or partial renourishment does not meet this requirement.[7]

Because the Applicant requested funding for sand replacement on Fourchon Beach, FEMA applied the eligibility requirements for sand replacement on beaches.  This decision was reasonable and consistent with FEMA policy.  Although the geotubes themselves may have been manufactured for erosion prevention, the surrounding sand on Fourchon Beach was a natural feature requiring periodic renourishment to preserve its design.  The Applicant concedes that extenuating circumstances made it nearly impossible to accomplish this, both before and after the completion of the geotube project.^[8]  Thus, the only evidence of periodic renourishment that the Applicant cites in its appeal is a separate beach owner’s one-time replacement of 1,416 CY of sand on top of an 840 linear foot section of the beach in 2015.[9]  This one-time, partial renourishment does not meet FEMA’s maintenance requirements.  Therefore, the Applicant has not adequately maintained this improved natural feature.

Additionally, whether or not the PW is classified under Category D based on the purpose of the geotubes, the Applicant is requesting funding for sand replacement.  As such, the Applicant must demonstrate the beach was properly maintained.  The Applicant would be asked to provide documentation demonstrating regular maintenance for any other improved natural feature or Category D project where sand replacement is requested.[10]  The Applicant has not provided such documentation and the project’s categorization does not change the result on appeal.

Direct Result of Disaster

FEMA will not provide funding for damage caused by deterioration or deferred maintenance, rather than as a direct result of the disaster.^[11]  Thus, replacing sand that eroded prior to the incident is not eligible.^[12]  FEMA uses pre- and post-storm profiles, design documents, and renourishment history to estimate the amount of sand lost as a result of the incident.[13]  FEMA may be unable to determine this amount if there are large gaps between renourishment projects or a lack of detailed monitoring records.^[14]

Although engineering designs for the geotube project show detailed surveys of the beach grade from 2012 and document 144,060 CY of sand replacement in 2013, the Applicant did not provide evidence documenting the condition of the beach in any detail following the completion of that project, either before or after the disaster.  The Applicant’s 2015 and 2016 monitoring reports showed photos of the beach and discussed vegetative planting progress but contained limited information about the condition of the beach.  Separate pre- and post-disaster photos showing small portions of the beach were similarly lacking.  And, as discussed, there is minimal renourishment history from which FEMA can determine the predisaster condition of the beach.

This documentation was particularly necessary because FEMA did not find weather conditions for this flooding event to be severe enough to erode 149,350 CY of sand.  This amount exceeded the 144,060 CY applied in the 2013 geotube project, which restored sand eroded as a result of multiple major hurricanes over an extended period.  Despite the weather data submitted on appeal, the Region’s conclusions are reasonable.  Therefore, the Applicant has not demonstrated the amount of sand replacement required as a direct result of the disaster.

Conclusion

Because the Applicant is requesting PA funding for sand replacement on Fourchon Beach, it must demonstrate an established maintenance program for that beach and provide documentation to estimate the amount of sand lost as a direct result of the disaster.  The Applicant has not met these requirements, therefore the second appeal is denied.