Beaches-Support Documentation

Appeal Brief

Summary Paragraph

In the first appeal, the Applicant asserted that the planting of dune grass at both Site 1 and Site 2 was necessary to stabilize the dune slopes and is eligible pursuant to FEMA Disaster Assistance Policy No. 9524.5, Tree, Shrubs, and Other Plantings Associated with Facilities.  According to the Applicant, dune grass was necessary to stabilize the dune slopes.  The Regional Administrator (RA) partially granted the appeal, determining that the replacement of dune grass in the vicinity of Site 1 was eligible for PA funding because the Applicant provided sufficient information to demonstrate that the dune grass was (1) essential to protecting and supporting the structural integrity and utility of the rear portion of the Site and (2) necessary to stabilize the slope upon which the facility is located.  The RA also determined that the replacement of grass on the dune in the vicinity of Site 2 was ineligible because the replacement of the grass was not associated with the repair of an eligible facility.  In the second appeal, the Applicant contends that the dune at Site 2 provides protection from storm surge and slope stabilization for other facilities and serves as vital mitigation measure.  The Grantee adds that the Dunes are an eligible improved and maintained feature but did not produce documentation that supports this claim.

Authorities and Second Appeals

• 44 C.F.R. § 206.201(c)
•    DAP 9524.5 Tree, Shrubs, and Other Plantings Associated with Facilities

•  RP 9524.2 Landslides and Slope Stability Related to Public Facilities

Headnotes

• 44 C.F.R. § 206.201(c) defines facility as “any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.”
• FEMA DAP 9524.5, Tree, Shrubs, and Other Plantings Associated with Facilities
  •  Grass and sod are eligible only when necessary to stabilize slopes and minimize erosion. 
• FEMA RP 9524.2 Landslides and Slope Stability Related to Public Facilities
  • Natural or improved ground that is not integral ground to an eligible facility, however, is not eligible for Public Assistance.

Appeal Letter

Appeal Analysis

Background

The high winds, tidal surge, and flooding during Hurricane Sandy, from October 26 through 31, 2012, damaged two of the Town of Westerly’s (Applicant) beach recreational facilities.  The first facility, which is not at issue in this appeal, was the Old Town Pavilion (Site 1).  The second facility was the New Beach Pavilion (Site 2), located at 311-315 Atlantic Avenue in the area known as “New Town Beach.”  The damage to Site 2 consisted of the loss of portions of the facility’s façade and decking and damage to the facility’s plumbing and electrical systems.  The tidal surge and wave action also washed away an established sand dune near the westerly side of Site 2 and deposited this sand onto an adjacent parking lot and roadway. 

The Federal Emergency Management Agency (FEMA) prepared Project Worksheet (PW) 41 for the replacement of grass as a stabilization measure on the damaged sand dunes at Sites 1 and 2.  FEMA used the Cost Estimating Format (CEF) tool[1] to estimate the cost to replace the dune grass at both sites.  For Site 1, FEMA estimated the cost to replace the dune grass to be $123,688.00; for Site 2, FEMA estimated the cost to replace the dune grass to be $38,147.50.  In finalizing PW 41, however, FEMA determined that the replacement of grass to stabilize the dunes at Sites 1 and 2 was not eligible for Public Assistance (PA) funding because it was “permanent work to a natural beach.”[2]

First Appeal

On March 25, 2012, in a letter from the Applicant to the Rhode Island Emergency Management Agency (Grantee), the Applicant requested that FEMA reconsider its decision regarding the eligibility of the replacement of dune grass at both Site 1 and Site 2.  In its appeal, the Applicant claimed the planting of dune grass was necessary to stabilize the dune slopes.  The Applicant contended that these repairs were eligible pursuant to FEMA Disaster Assistance Policy (DAP) 9524.5 Tree, Shrubs, and Other Plantings Associated with Facilities for the purpose of slope stabilization.  Specifically, the Applicant concluded that, without dune grass, there was no stabilization of dune slopes, and they would not provide an effective mitigation measure as intended. 

On August 29, 2013, the Acting Regional Administrator (RA) issued a first appeal decision, partially granting the appeal.  The RA determined that the replacement of beach grass on the dunes at Site 1 was eligible for PA funding because the Applicant provided sufficient information to demonstrate that in accordance with FEMA DAP 9524.5:

1. the dunes located at Site 1 were essential to protecting and supporting the structural integrity and utility of the rear portion of the Site; and
2. the replacement of grass at Site 1 was necessary to stabilize the slope upon which the facility is located and to minimize sediment runoff. 

The RA also concluded that the replacement of grass on the dune in the vicinity of Site 2 was ineligible for PA funding because the replacement of the grass near Site 2 for the purpose of slope stabilization was not associated with the repair of an eligible facility.  According to the RA, the dune was physically separated from and located south of Site 2 and did not protect or support the structural integrity and utility of the Site 2 pavilion. 

Second Appeal

The Applicant’s second appeal, dated October 4, 2013, contests the RA’s first appeal decision with regard to the replacement of grass on the dune near Site 2.  According to the Applicant, the dune near Site 2 provides protection from storm surge and slope stabilization for a parking area, lifeguard first-aid station, shed for employees, and bathroom facility.  Further, the Applicant states that the dune is approximately 133 feet from the guardrails and the street, both of which sustained damage during storms without ample protection.  Finally, the Applicant argues that the dunes provide a vital mitigation measure for the area and without them there would be constant breaches onto public property and impact to the public right of way on Atlantic Avenue.   

The Rhode Island Office of the Governor (Grantee), in its second appeal transmission, raises an additional issue.  Citing to the “scope of work” section in PW 41,[3] the Grantee claims that the dunes near Site 2 are an improved and maintained feature and, therefore, should be eligible for PA funding.[4]

Discussion

Replacement of Grass for Slope Stabilization

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes FEMA to provide grant assistance to local governments for the repair and replacement of facilities damaged or destroyed by a major disaster.[5]  In general, certain features, such as planted trees, shrubs, and grass, do not qualify as eligible facilities.[6]

FEMA DAP 9524.5 establishes criteria used to define both ineligible work related to trees, shrubs, and other plantings and the limited eligibility for replacement of grass and sod associated with facilities eligible for repair and restoration.[7]  According to this policy, while trees, shrubs, and other plantings are generally not eligible for replacement under Section 406 of the Stafford Act, there are instances where replacement of plantings can be eligible for PA as part of the repair of another eligible facility.[8]  Grass and sod replacement is eligible when it is necessary to stabilize slopes and minimize sediment runoff.[9]  The replacement of grass and sod for purposes other than slope stabilization or minimization of sediment runoff is considered cosmetic and is not eligible for reimbursement.[10]

FEMA Recovery Policy (RP) 9524.2 sets forth the criteria used to evaluate the eligibility of permanent work to repair facilities damaged by landslides or slopes that failed during a major disaster.[11]  According to this policy, FEMA will fund the permanent work to restore an eligible facility and its “integral ground” if the site is unstable and the instability is the direct result of the declared disaster.[12]  “Integral ground” refers to natural or improved ground upon which an eligible facility is located and which is essential to support the structural integrity and utility of the facility.[13]  Natural or improved ground that is not integral ground to an eligible facility, however, is not eligible for Public Assistance.[14]

The Applicant claims that the planting of the grass near Site 2 is a vegetative mitigation activity and that the replacement of the grass is necessary to stabilize the slope.  Additionally, the Applicant asserts that the dune near Site 2 provides protection from storm surge and slope stabilization for a parking area, lifeguard first-aid station, shed for employees, and bathroom facility.  However, vegetative mitigation activities and replacing grass for the purpose of slope stabilization are only eligible under DAP 9524.5 when associated with the repair of an eligible facility.  The Applicant has not provided sufficient information to demonstrate that the dune at Site 2 is an integral ground of the pavilion or associated with the repair of an eligible facility.  The dune is physically separated from Site 2 and does not protect or support the structural integrity and utility of the Site 2 pavilion.  Further, the Applicant does not provide any documentation that demonstrates that the parking area, lifeguard first-aid station, employee shed, and bathroom facility are eligible facilities.   

Though the Grantee points to language in the “scope of work” section in PW 41 as proof that the dune was improved and maintained, neither the Grantee nor the Applicant provided actual documentation that confirms the language in the “scope of work” or otherwise demonstrates that the sand dune was, in fact, an improved and maintained natural feature. Therefore, the dune is an ineligible facility, making the replacement of grass on the dune also ineligible. 

Conclusion

The replacement of grass on the dune in the vicinity of Site 2 is ineligible for PA funding because the replacement of the grass as a slope stabilization measure is not associated with the repair of an eligible facility and no documentation was provided to demonstrate that the dune was an improved and maintained nature feature.  As such, the appeal is denied.