Direct Result of Disaster, Immediate Threat
Appeal Brief
Appeal Letter
Appeal Analysis
Appeal Brief
| Disaster | FEMA-4080 |
| Applicant | Office of Coastal Protection and Restoration |
| Appeal Type | Second |
| PA ID# | 000-UTFMG-00 |
| PW ID# | PW 1456 |
| Date Signed | 2018-02-09T00:00:00 |
Conclusion: Office of Coastal Protection and Restoration (Applicant) has not demonstrated either that debris resulted directly from Hurricane Isaac (Isaac) or that the debris removal was in the public interest.
Summary Paragraph
During an incident period from August 28, 2012 to September 10, 2012, Isaac impacted coastal waterways in Louisiana. The Applicant requested funding to remove waterway debris. In response, FEMA prepared Project Worksheet (PW) 1456, but did not award funding, finding the debris removal ineligible because the Applicant did not demonstrate the debris resulted from Isaac or that the removal was cost effective. On August 16, 2013, the Applicant filed an appeal, arguing it was improper for FEMA to deny eligibility without inspecting Bayous Yscloskey and LaLoutre and that it was willing to work with FEMA to adjudicate the origin of reported debris. The FEMA Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the debris resulted from Isaac or that debris posed an immediate threat requiring removal. On March 24, 2016, the Applicant filed a second appeal, arguing debris removal is required as a direct result of the disaster and requesting FEMA to make its final determination only after reviewing a comprehensive debris analysis and inspecting the Yscloskey and LaLoutre Bayous. Additionally, the Applicant argues it provided sufficient documentation of an immediate threat, asserting historical data indicates a major storm occurs every five years.
Authorities and Second Appeals
- Stafford Act §§ 403(a)(3)(A), 407(a), 502(a)(5).
- 44 C.F.R. § 206.206(a), 206.223(a)(1), 206.224(a).
- RP9523.5, at 4, 5, 7.
- PA Guide, at 66-68.
Headnotes
- Pursuant to 44 C.F.R. § 206.223(a)(1) , an item of work must be the result of a major disaster. Additionally, RP9523.5, requires that the debris from waterways be a direct result of the major disaster.
- The Applicant has not demonstrated that that the debris in question resulted directly from Isaac.
- As outlined in 44 C.F.R. § 206.224(a), FEMA must determine that debris removal is in the public interest. Such removal is in the public interest when it eliminates threats to lives, public health and safety, or improved public or private property; or ensures the economic recovery of the affected community.
- The Applicant has not established that debris posed an immediate threat, nor has it demonstrated how debris removal was necessary to ensure economic recovery.
Appeal Letter
James Waskom
Director
State of Louisiana Governor’s Office of
Homeland Security and Emergency Preparedness
7667 Independence Blvd.
Baton Rouge, LA 70806
Re: Second Appeal – Office of Coastal Protection and Restoration, PA ID 000-UTFMG-00,
FEMA-4080-DR-LA, Project Worksheet 1456 – Direct Result of Disaster, Immediate Threat
Dear Mr. Waskom:
This is in response to a letter from your office dated May 23, 2016, 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 $169,937.00.
As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that debris in question resulted directly from Hurricane Isaac or posed an immediate threat to life, public health, safety, or improved property. Therefore, 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/
Christopher Logan
Director
Public Assistance Division
Enclosure
cc: George A. Robinson
Regional Administrator
FEMA Region VI
Appeal Analysis
Background
During an incident period from August 28, 2012 to September 10, 2012, Hurricane Isaac (Isaac) impacted coastal waterways in Louisiana. The Office of Coastal Protection and Restoration (Applicant) requested funding to remove waterway debris located in five bayous.[1] In response, FEMA prepared project worksheet (PW) 1456[2] but awarded no funding, finding the work ineligible because the Applicant did not demonstrate the debris resulted from Isaac or that the removal was cost effective.[3]
First Appeal
On August 16, 2013, the Applicant filed a first appeal arguing that FEMA improperly denied eligibility and asserting a desire to work with FEMA to adjudicate the origin of the reported debris.[4] The Applicant argued that the burden to determine the cause of the debris does not rest with the Applicant alone. The Applicant noted that FEMA had not inspected Bayous Yscloskey and LaLoutre, and therefore denying eligibility for debris removal in those bayous was improper.
On March 3, 2015, the FEMA Regional Administrator (RA) sent a Final Request for Information, requesting documentation demonstrating the debris was a direct result of Isaac and posed an immediate threat to life, public health, safety, or improved property. The Applicant’s response reiterated its prior arguments but provided no additional documentation.
The RA denied the first appeal on January 14, 2016, finding the Applicant did not demonstrate either that the debris was a direct result of Isaac or it posed an immediate threat. In support of his decision, the RA reviewed aerial photographs taken before and after Isaac and determined the debris was deposited before the disaster.
Second Appeal
On March 24, 2016, the Applicant filed its second appeal, arguing debris removal is required as a direct result of the disaster and requesting FEMA make its final determination only after reviewing a comprehensive debris analysis[5] and inspecting Bayous Yscloskey and LaLoutre. The Applicant also argues an immediate threat exists because historical data suggests a major storm occurs every five years.
The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) submitted the second appeal to FEMA on May 23, 2016. Through its submission, the Grantee argues FEMA incorrectly relied on aerial photos that did not accurately show debris. Additionally, the Grantee contends that its comprehensive debris analysis—which includes documentation from the United States Coast Guard (USCG) and an engineering report— is sufficient to establishes causation.[6] The Grantee argues that, USCG cleared all debris from Hurricane Katrina, and thus any debris identified post-Katrina resulted from either Hurricane Gustav or Isaac, and as Gustav debris was identified in an earlier PW, any remaining debris resulted from Isaac. The Grantee further asserts reports of debris began after the event, implying the reports are indicative of new debris caused by Isaac.
Regarding the existence of an immediate threat, the Grantee argues the Applicant provided documentation and evidence demonstrating an immediate threat, specifically pointing to a letter from the Applicant’s attorney and information in the debris analysis. The Grantee also repeatedly notes that the boat FEMA used during its site inspection struck debris.
Discussion
FEMA is authorized to provide funding to eligible applicants to remove debris, wreckage, and sunken vessels from publicly and privately owned waters to eliminate an immediate threat to lives, public health and safety or improved property or ensure the economic recovery of the affected community.[7] However, as discussed below, applicants must demonstrate compliance with several other regulatory requirements to receive reimbursement for such work.
Direct Result of Major Disaster Event
An item of work must be required as the result of the emergency or major disaster event to be eligible for funding.[8] Additionally, FEMA policy requires that the debris must be the direct result of a major disaster.[9] Any appeal of a PA determination must contain documented justification to support an applicant’s position.[10] Accordingly, the Applicant’s appeal must demonstrate that the debris in question resulted directly from Isaac.
The aerial photographs that were relied upon by the RA show the debris sites both before and after Isaac. The debris in question was present in the pictures taken before Isaac. Therefore, the debris could not have resulted directly from Isaac. Although the Applicant asserts that FEMA relied on inaccurate aerial photos, it has offered no additional explanation beyond its assertion, nor has it provided photographs it contends are more accurate. As such, it has not demonstrated that the debris resulted directly from Isaac.
The Applicant’s debris analysis contends that the USCG cleared all Katrina-related debris before Isaac. However, the USCG’s post-Katrina removal project did not remove all debris present after Hurricane Katrina. Removal efforts were limited in scope to only certain types of debris and certain locations or depths in relation to the edge of the waterway.[11] Moreover, debris the USCG determined was present prior to Hurricanes Katrina/Rita was declared not mission applicable and was not removed. Following the USCG’s debris removal actions, an additional six years passed between Hurricane Katrina and Isaac, during which time other events could have generated debris. For these reasons, debris, including Katrina-related debris, remained in the subject waterways after the USCG completed its project, and it remained until 2011 when Isaac made landfall. Accordingly, the Applicant has not established the debris resulted from Isaac.
Additionally, the Applicant’s engineer contends it used USCG data and historical imagery to decipher which storm (Katrina, Gustav or Isaac) deposited the marine debris and sediment. However, this statement is conclusory and not supported with any additional documentation. The engineer also contends FEMA inspected waterways after USCG removal efforts, determining the waterways were free of Katrina debris. But this statement is without support as the USCG, as discussed above, did not remove all Katrina related debris, nor did it remove all debris in the waterways.
The Grantee asserts the Applicant received numerous reports of debris after Isaac, implying that these were reports of new debris caused by Isaac. However, the Applicant never provided, nor does the administrative record contain, call logs or written descriptions of any such reports. As such, the Applicant has not established the dates the reports were made or the nature and location of the debris made in the individual reports. Accordingly, the Applicant has not supported its assertion.
Immediate Threat, Public Interest
Debris removal must be in the public interest to be eligible for funding.[12] Debris removal is considered in the public interest when 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.[13] Additionally, an applicant must provide a public interest determination with documentation establishing one of the three criteria.[14]
FEMA does not dispute that debris was present in the subject waterways. However, the fact that debris exists does not support a conclusion that its removal is in the public interest. Rather, the Applicant must demonstrate that removal is in the public interest by providing documentation to support one of the three outlined criteria. Here, the Applicant asserts all three criteria for a public interest finding exist, but it has not provided any documentation that would allow FEMA to conclude debris removal was in the public interest.[15]
The Applicant notes that the boat used while looking for debris was struck by a specific piece of debris; however, this does not adequately demonstrate an immediate threat to life, public health or safety. The Applicant has not provided the location or the nature of this specific piece of debris or established, as discussed above, that it resulted from Isaac.
Additionally, the Applicant argues that the removal of debris is necessary to ensure economic recovery, specifically asserting that the debris negatively affected the fishing industry. But beyond its assertion, the Applicant has not provided supporting documentation, such as reports from representatives of the fishing industry or other maritime industries. Similarly, the Applicant has not provided documentation demonstrating that the debris hindered economic recovery by, for example, necessitating closure of the waterways or making them non-navigable.
The Applicant also pointed to historical records, which indicate another hurricane would likely impact Louisiana within five years. However, the Applicant did not establish how the debris at issue poses an immediate threat to public health and safety or improved property.
Conclusion
The Applicant has not demonstrated either that debris resulted directly from Isaac or that the debris posed an immediate threat to an immediate threat to life, public health, safety, or improved property. Therefore, the debris removal is not eligible for funding and the appeal is denied.
[1] Bayou Terre Aux Boeufs, Bayou Leary, Bayou Gentilly, Bayou LaLoutre, and Bayou Yscloskey.
[2] FEMA conducted a site inspection on April 23, 2013, inspecting 32 debris sites.
[3] The PW documented $153,856.00 in debris removal costs.
[4] The Applicant did not request a specific amount of funding, but did request that the PW be found eligible.
[5] This debris analysis is also referred to as the Royal Engineering Report. It was originally provided to FEMA as support documentation in response to a separate PW that concerned debris removal.
[6] The Applicant specifically mentions the Royal Engineering Report.
[7] The Robert T. Stafford Disaster and Emergency Assistance Act of 1988, Pub. L. No. 93-288, §§ 403(a)(3)(A), 407(a), 502(a)(5), 42 U.S.C. §§ 5170b(a)(3)(A), 5173(a), 5192(a)(5) (2006); Recovery Policy RP9523.5, Debris Removal from Waterways, at 2 (Mar. 29, 2010).
[8] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1).
[9] RP9523.5, at 2.
[10] 44 C.F.R. § 206.206(a).
[11]FEMA Guidelines for Water Way Debris Removal Eligibility (July 28, 2006).
[12] 44 C.F.R. § 206.224(a).
[13] Id.; Public Assistance Guide, FEMA 322, at 66-68 (June 2007).
[14] RP9523.5, at 4.
[15] For example, the Grantee’s second appeal notes as evidence of public interest a letter from Applicant’s attorney, dated June 27, 2013, in which the Applicant sought a time extension to identify debris. In the course of explaining the time extension, Applicant’s attorney references, without citation or support, that the debris poses a risk of health and safety and hinders the region’s economic recovery. But, absent specific documentation or support, these statements do not demonstrate how the debris causes this risk or hindrance.
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