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Direct Result of Disaster

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1603-DR-LA
ApplicantLouisiana Department of Natural Resources
Appeal TypeSecond
PA ID#000-UCPOY-00
PW ID#20449
Date Signed2015-02-06T00:00:00

Conclusion: The requested debris removal in Lake Lery and Lake Hermitage is ineligible for Public Assistance (PA) funding because the Applicant did not establish that any debris in the two lakes is a direct result of the declared disaster, or that it poses an immediate threat.

Summary Paragraph

As a result of Hurricane Katrina, debris was deposited in waterways throughout Louisiana.  FEMA executed an Inter-Agency Agreement (IAA) with the United States Coast Guard (USCG) to remove eligible marine debris.  The USCG identified and removed eligible debris from Lake Lery and Lake Hermitage.  On August 8, 2012, the Applicant requested a new Project Worksheet (PW) for the “identification, removal, and disposal of waterborne debris” related to Hurricane Katrina from both lakes.  The Applicant did not document the existence of any debris.  FEMA prepared PW 20449 to address the Applicant’s request and determined the work to be ineligible because the USCG removed all Katrina-related debris that posed an immediate threat to life, public health, and safety.  In its first appeal letter, the Applicant claimed that Hurricane Katrina deposited debris on the water bottoms of Lake Lery and Lake Hermitage.  The Applicant reasoned that this debris should be eligible for PA funding pursuant to 44 C.F.R. § 206.224 because it continued to pose a risk to life, public health, and safety.  The Applicant also claimed that the USCG did not remove all eligible debris.  The Regional Administrator (RA) denied the appeal, finding that the Applicant did not include any documentation to establish the existence of any Katrina-related debris.  In its second appeal, the Applicant reiterates its first appeal claims, states that FEMA did not consider its first appeal documentation, and provides a draft trip report to demonstrate the existence of Katrina-related debris. 

Authorities and Second Appeals

  • 44 C.F.R. § 206.223(a)(1).
  • 44 C.F.R. § 206.224(a).

Headnotes

  • 44 C.F.R. § 206.223(a)(1) provides that, to be eligible, work must be required as a direct result of the disaster.
    • The Applicant has not established that any debris in the two lakes is a direct result of Hurricane Katrina.  Therefore, the proposed work to identify, remove, and dispose of any debris in the two lakes is ineligible.
  •  According to 44 C.F.R. § 206.224(a), if debris removal is in the public interest, the RA may provide assistance for the removal of debris and wreckage from publicly and privately owned lands and waters.  Debris removal is considered to be in the public interest when it is necessary to eliminate immediate threats to life, public health, and safety, or eliminate immediate threats of significant damage to improved public or private property.
    • More than nine years after the declared disaster, the Applicant has not demonstrated that any debris in the lakes poses an immediate threat.  Thus, the requested debris removal is ineligible.

 

Appeal Letter

February 6, 2015

Kevin Davis
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

Re:  Second Appeal – Louisiana Department of Natural Resources, PA ID 000-UCPOY-00, FEMA-1603-DR-LA, Project Worksheet (PW) 20449, Direct Result of Disaster

Dear Mr. Davis:

This is in response to your letter dated June 4, 2014, which transmitted the referenced second appeal on behalf of the Louisiana Department of Natural Resources (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for debris removal from Lake Lery and Lake Hermitage. 

As explained in the enclosed analysis, I have determined that the Applicant did not establish that any debris in these two lakes is a direct result of the disaster, or that the debris poses an immediate threat to life, public health, or safety.  In accordance with Title 44 of the Code of Federal Regulations (C.F.R.) § 206.223(a)(1), eligible work must be required as a direct result of the disaster.  Therefore, I am denying this appeal.

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206 Appeals.  

Sincerely,      

/s/                             

William W. Roche
Director
Public Assistance Division

Enclosure

cc:  George A. Robinson
       Regional Administrator
       FEMA Region VI

Appeal Analysis

Background

On August 29, 2005, Hurricane Katrina struck the Gulf Coast and deposited debris in waterways throughout Louisiana.  In September 2006, FEMA executed an Intra-Agency Agreement (IAA) with the United States Coast Guard (USCG) to remove eligible marine debris.  The IAA scope of work provided that the USCG will perform removal of marine debris, including stranded vessels, wrecks, and debris that “pose an immediate threat to public health and safety, pose the potential for a hazard to navigation or directly impact the economy of the community at large, from the commercial waterways and navigable channels.” [1]

The USCG removed debris from Lake Lery in St. Bernard Parish and Lake Hermitage in Plaquemines Parish.  Between December 2006 and April 2007, the USCG identified and removed 490 cubic yards (CY) of eligible debris from Lake Lery.[2]  In October 2008, USCG’s side-scan sonar surveys for Lake Lery identified additional potentially eligible debris targets.  However, the USCG could not locate the debris targets during subsequent removal operations; consequently, no debris was removed.[3]  In July 2009, the USCG removed a partially submerged vessel from a canal located on the western extent of Lake Hermitage.[4]

On August 30, 2008, the USCG, FEMA, State of Louisiana, and St. Bernard Parish entered into a Memorandum of Agreement (Memorandum) stating that the USCG was authorized by FEMA to remove storm generated debris from commercial waterways in St. Bernard Parish.  The Memorandum also stated that “[d]ebris pickup is now greatly reduced and is at a rate of collection where the Parish resources can likely manage any further collection.”[5]  Representatives from the USCG, FEMA, and St. Bernard Parish signed the Memorandum. The Memorandum did not include a signature from a State of Louisiana representative.  On May 4, 2011, the same four entities entered into another Memorandum of Agreement, stating that the USCG was authorized to remove storm generated debris, and eligible debris was located and subsequently removed.  Signatures from all four entity representatives documented the completion of the FEMA debris removal mission in St. Bernard Parish as of February 1, 2011.[6]

On August 8, 2012, the Louisiana Department of Natural Resources (Applicant) submitted a new Project Worksheet (PW) requesting Public Assistance (PA) Program funding for Hurricane Katrina-related debris removal from Lake Lery and Lake Hermitage, which have state-owned water bottoms that are the Applicant’s legal responsibility.  The Applicant stated that a new PW was necessary for the “identification, removal, and disposal of waterborne debris in Lake Lery and Lake Hermitage.”  The Applicant did not include any documentation with the PW request to establish that any debris existed.  FEMA prepared PW 20449 to address the Applicant’s request, and determined the requested work to be ineligible because the USCG had removed all Katrina-related debris that posed an immediate threat to life, public health and safety.  Subsequently, FEMA obligated PW 20449 for zero dollars on November 27, 2012.

First Appeal

On February 8, 2013, the Applicant submitted a first appeal to the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee).  In its appeal, the Applicant raised the following six issues:

  1. The water bottoms of Lake Lery and Lake Hermitage contained debris deposited by Hurricane Katrina.
  2. The debris removal from the lakes was eligible for Public Assistance pursuant to 44 C.F.R. §206.224.
  3. The USCG debris removal operation did not remove all eligible debris from the two lakes.
  4. The USCG was no longer actively performing debris removal in the two lakes.
  5. FEMA’s assertion—that the bathymetry of the two lakes made it difficult for the USCG to bring in debris removal equipment—was not a legally valid reason for an ineligibility determination of the Applicant’s own debris removal operation.
  6. The Applicant is entitled to Public Assistance for eligible debris removal.

On January 8, 2014, the FEMA Region VI Regional Administrator (RA) denied the first appeal, determining that the requested debris removal from Lake Lery and Lake Hermitage was ineligible.  The RA asserted that, pursuant to 44 C.F.R. § 206.223(a)(1), eligible work must be required as a direct result of the disaster; in this case, the Applicant had not established the existence of any Hurricane Katrina related debris.  Further, the RA noted that the USCG’s extensive debris removal efforts included Lake Lery and Lake Hermitage.  The RA concluded that the Applicant’s claim did not meet the requirements for debris removal in accordance with 44 C.F.R. § 206.224.

Second Appeal  

In its second appeal, dated April 4, 2014, the Applicant requests a reconsideration of its first appeal.  To further support its first appeal assertions, the Applicant provides a draft trip report, which allegedly demonstrates the existence of debris in Lake Lery and Lake Hermitage, but not that the debris is directly related to Hurricane Katrina. 

On June 4, 2014, the Grantee transmitted the Applicant’s second appeal, indicating its support of the appeal.  In addition to agreeing with the Applicant’s arguments, the Grantee suggests that it is not the Applicant’s sole responsibility to monitor and track the debris in the waterways.  The Grantee emphasizes that, from the beginning, the Applicant requested FEMA to locate and identify the debris in the waterway, in addition to the removal and disposal of this debris.  The Grantee also asserts that the Applicant may eventually be entitled to direct administrative costs. 

Discussion

Direct Result of Disaster

In general, to be eligible for PA funding, the work must be required as a direct result of the disaster.[7]  If any debris meets this threshold requirement, then the debris removal may be eligible for funding when it is in the public interest, as set forth in  44 C.F.R. § 206.224(a).[8]

The Applicant failed to establish that the debris was a direct result of Hurricane Katrina.  As evidence of the existence of debris in Lake Lery and Lake Hermitage, the Applicant provides a draft trip report, dated June 15, 2012, [9] and an email from a private citizen, dated April 6, 2012.[10]  According to the trip report, the Applicant’s field survey team found nine debris targets in Lake Lery and eight debris targets in Lake Hermitage.  The Lake Lery debris targets consisted mostly of trees and one “boat submerged near [the] bank.”[11]  The Lake Hermitage debris targets consisted of four “unknown” objects or items, with the remaining four items described as “fiberglass boat,” “tank on shore,” “loose piling,” and “iron pipes on bottom left by oil co. [o]lder than 50 years. . . [l]ikely not eligible for FEMA PA.”[12]   Notably absent from the trip report is any information related to the origin of the debris targets found.  Additionally, the email from the aforementioned private citizen conveys the message that he “recently returned to commercial crabbing in Lake Lery and discovered that it is littered with hurricane debris…that it is hazardous to navigation.”[13]  However, the information in the email is only one private citizen’s opinion that the debris is hurricane related, and does not directly support a connection between the encountered debris and the declared disaster.

In addition, Hurricane Katrina made landfall in 2005, almost seven years prior to the debris sightings documented in the 2012 draft trip report.  Given the history of frequent hurricanes that impacted the Louisiana waterways before and after Hurricane Katrina,[14] it is very possible that the debris encountered and documented in the 2012 draft trip report resulted from an event prior to Hurricane Katrina.[15]  Alternatively, an event after Hurricane Katrina could have deposited the debris in the lakes.  Further, the Grantee admits in the second appeal transmittal that, “[w]aterway debris is most often, by its nature, not stationary; it is subject to the movement of the water in which it is located.”  Moreover, the USCG noted, following its unsuccessful attempt to locate and remove debris targets previously detected in a sonar survey, that the “[i]tem may have moved from original location since date of survey.”[16] These statements reveal the lack of certainty that the debris is a direct result of Hurricane Katrina.

The Applicant attempted to document the existence of debris in the two lakes with the 2012 draft trip report.  However, this 2012 draft report, which identified alleged hurricane debris from an event seven years earlier, does not demonstrate that the identified items were the direct result of Hurricane Katrina.  Thus, the requested debris removal work is ineligible. 

Immediate Threat

Even if, arguendo, all of the debris in both Lake Lery and Lake Hermitage were a direct result of the disaster (Hurricane Katrina), the Applicant failed to demonstrate that the debris removal would be in the public interest, pursuant to 44 C.F.R. § 206.224(a).[17]   Debris removal, in this instance, is in the public interest when it is necessary to:

  1. Eliminate immediate threats to life, public health, and safety; or
  2. Eliminate immediate threats of significant damage to improved public or private property; or
  3. Ensure economic recovery of the affected community to the benefit of the community-at-large.[18]

As of the date of the second appeal, more than nine years after the disaster, any threat posed by the debris in the lakes is not considered an immediate threat, which is defined as the threat of damage from an event that could reasonably occur within five years.[19]  Furthermore, the Applicant has not presented any argument nor provided any documentation to substantiate that the debris removal from the two lakes would ensure economic recovery of the affected community to the benefit of the community at large, in accordance with the requirement set forth in the regulations.[20]  Accordingly, the debris removal is not eligible for PA funding, pursuant to 44 C.F.R. § 206.224(a).

Direct Administrative Costs

The Applicant’s direct administrative costs (DAC), if incurred and properly documented, would only be eligible for funding if the associated work is eligible.  As the work in this instance is not eligible, further discussion of DAC is unnecessary. 

Conclusion

The Applicant did not establish that any debris in Lake Lery or Lake Hermitage is a direct result of Hurricane Katrina.  Further, the Applicant did not demonstrate that the debris removal work is in the public interest, in accordance with 44 C.F.R. § 206.224(a).[21]  Therefore, the requested debris removal from Lake Lery and Lake Hermitage is ineligible for PA funding.


[1] Intra-Agency Agreement Between Federal Emergency Management Agency (FEMA) and the United States Army (sic) Coast Guard (USCG), at 7 (2006).

[2] Phase II Marine Debris Removal, Lake Lery, Case 8418, USCG/FEMA, at 7 (Undated).

[3] Waterway Subsurface Debris Target Evaluation Sheet, Lake Lery, Case 8428, Target 1003, 1004, 1005, and 1006, USCG (Oct. 1, 2008).

[4] Memorandum from Mr. George E. Amon III (Office of Claims and Litigation, USCG) to Jeffery Jones (FEMA representative for Marine Debris Removal), U.S. Coast Guard/FEMA Marine Debris Removal Effort for Lake Lery and Lake Hermitage, at 2 (Undated).

[5] Memorandum of Agreement Amoung (sic) U.S. Coast Guard, Federal Emergency Management Agency, State of Louisiana, St., Bernard Parish (Aug. 30, 2008)

[6] Memorandum of Agreement Among U.S. Coast Guard, Federal Emergency Management Agency, State of Louisiana, St., Bernard Parish (May 4, 2011)

[7] 44 C.F.R. § 206.223(a)(1) (2004). 

[8] 44 C.F.R. § 206.224(a).

[9] Lakes Hermitage and Lery Marine Debris Evaluation Trip Report, DRAFT, prepared by IEM, Inc. for Coastal Protection and Restoration Authority (CPRA) (June 15, 2012) [hereinafter “2012 Draft Trip Report”].

[10] Email from Frederick Everhardt to Leo Richardson (April 6, 2012)  [hereinafter Email from Frederick Everhardt].

[11] 2012 Trip Report.

[12] Id.

[13] Email from Frederick Everhardt.

[14] List of Louisiana hurricanes (2000–present), Wikipedia, //en.wikipedia.org/wiki/List_of_Louisiana_hurricanes_(2000%E2%80%93present) (last visited Dec. 9, 2014) (listing the following hurricanes: Isidore (2002), Lili (2002), Cindy (2005), Katrina (2005), Rita (2005), Gustav (2008), Lee (2011), and Isaac (2012)).

[15] See 2012 Draft Trip Report (referencing iron pipes older than 50 year old, which suggests that debris encountered in the waterway is likely not caused by Hurricane Katrina).

[16] Waterway Subsurface Debris Target Evaluation Sheet, Lake Lery, Case 8428, Target 1003, USCG (Oct. 1, 2008).

[17] 44 C.F.R. § 206.224(a).

[18] Id.

[19] Public Assistance Guide, FEMA 322, at 50 (Oct. 1999) [hereinafter PA Guide].  FEMA notes that the Applicant stated in both the first and second appeal letters that “once the debris removal at issue has been determined to be eligible for public assistance, the project will be submitted to various contractors for public bid.”  If the debris in the two lakes truly posed an immediate threat, then the Applicant, as the legally responsible entity, could have performed the debris removal work regardless of PA eligibility.  The fact that the Applicant continues to wait for FEMA’s eligibility determination, more than nine years after the disaster, undermines the Applicant’s assertion that the debris poses an immediate threat.

[20] 44 C.F.R. § 206.224(a)(3).

[21] 44 C.F.R. § 206.224(a).


 

 

Last updated May 28, 2020