Hazard Mitigation Project

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1603-DR
ApplicantJefferson Parish
Appeal TypeSecond
PA ID#051-99051-00
PW ID#Project Worksheet 11568
Date Signed2009-07-02T04:00:00

Citation:FEMA-1603-DR-LA, Jefferson Parish, Hazard Mitigation Project 11568

Summary:

Hurricane Katrina’s flood waters breached a levee in lower Orleans Parish and overflowed the 17th Street Canal’s lower wall flooding the canal and depositing silt and trash that clogged Jefferson Parish’s (Applicant) drainage facilities. FEMA prepared PW 2605 to remove the debris from the canal. To mitigate the damage, the Applicant installed 30 flapgate prevention valves on the canal system drainage outlets to prevent backflows. On July 22, 2006, FEMA obligated PW 11568, for zero dollars because the Project Officer stated that flood waters and debris did not damage the Applicant’s drainage facilities. The Regional Administrator sustained this determination on July 25, 2008. In addition, the Regional Administrator denied the appeal because the Applicant completed the Hazard Mitigation Project (HMP) without FEMA conducting a National Environmental Protection Act (NEPA) compliance review and the Applicant did not submit the first appeal in a timely manner. The Applicant asserted that it did not receive notice from GOHSEP that FEMA did not fund PW 11568 until January 30, 2008. The Applicant filed the first appeal on March 25, 2008; 20 months after the FEMA obligated PW 11568 for zero dollars.

The Applicant filed a second appeal on September 26, 2008, reiterating the arguments in the first appeal. On March 24, 2009, the Acting Assistant Administrator for the Disaster Assistance Directorate met with representatives from Jefferson Parish to discuss the appeal. The Applicant admitted that the United States Army Corps of Engineers found the facility eligible for its program. Federal Regulation 44 CFR §206.226(a)(1) prohibits FEMA from providing disaster assistance funding when another federal agency has specific authority to restore facilities damaged or destroyed by a major disaster.

Issues:

Will FEMA provide funding for a Hazard Mitigation Project on a facility that
did not sustain disaster related damage and another federal agency has specific
authority to restore facilities damaged or destroyed by a major disaster?

Findings:

No

Rationale:

44 CFR §§206.206(c), Time Limits; 206.226(a)(1), Assistance under other Federal agency (OFA) programs; Response and Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act); Response and Recovery Policy 9523.3, Duplication of Benefits –Non Governmental Funds

Appeal Letter

July 2, 2009

Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, LA 70806

Re: Second Appeal–Jefferson Parrish PA 051-99051-00, Hazard Mitigation Project,
FEMA-1603-DR-LA, Project Worksheet (PW) 11568

Dear Col. Kirkpatrick:

This is in response to your letter dated November 5, 2008, which transmitted the second appeal on behalf of Jefferson Parish (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny its request for $765,750 for a hazard mitigation project (HMP) along the 17th Street Canal.

The 17th Street Canal is the boundary between Orleans and Jefferson Parish. Hurricane Katrina’s floodwaters breached a levee on the lower Orleans Parish side of the 17th Street Canal that resulted in major flooding in Jefferson and Orleans Parish. Hoey’s Basin is located on the high side of the 17th Street Canal. Overflow/drainage backflow from the floodwaters in Orleans Parish inundated Hoey’s Basin. The canal is part of Jefferson Parish’s storm water drainage system. The floodwater did not damage the canal walls, drainage lines, drop inlets and outlets, and catch basins. However, the floodwaters deposited debris throughout the system. The Applicant installed 30 flap gates along Hoey’s Basin Drainage System /17th Street Canal to prevent future backflow into the basin’s drainage facilities at a cost of $765,750.

On July 22, 2006, FEMA prepared PW 11568 for the mitigation project, but determined that it was ineligible because the floodwater did not damage the Applicant’s drainage facilities. The intent of Section 406 mitigation is to incorporate mitigation measures in conjunction with the repair of disaster-damaged facilities. The Regional Administrator sustained that decision on first appeal on July 25, 2008. The Regional Administrator also concluded that the Applicant completed the project before FEMA could conduct an environmental review and it submitted its appeal after the statutory deadline for submitting appeals.

The Applicant submitted its second appeal to GOHSEP on September 26, 2008. The Applicant stated that, (1) the mitigation project is consistent with the section 406 mitigation policy; (2) it submitted its first appeal within 60 days of receiving notification of FEMA’s decision from
GOHSEP; and (3) the mitigation project consisted of improvements to existing facilities and was categorically excluded from further environmental review. On March 24, 2009, the Acting Assistant Administrator for the Disaster Assistance Directorate held a video teleconference call with representatives of Jefferson Parish and GOHSEP to discuss the appeal.

The salient issue in this appeal is whether the installation of flap gates is an eligible Section 406 mitigation project. The Applicant states that the flap gates will prevent damage to many facilities in Hoey’s Basin and is cost-effective. Therefore, the project is consistent with Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act). Section 406 mitigation is facility-specific. The mitigation measures should be incorporated into the repair of the damaged facility. The floodwater did not damage the drainage facilities. Therefore, the facilities do not qualify for Section 406 hazard mitigation. In addition, watershed- or basin-wide mitigation measures are not eligible for funding under Section 406. These measures may be eligible for funding under the Section 404 Hazard Mitigation Grant Program. In addition, the U.S. Army Corps of Engineers has the authority to fund basin-wide flood mitigation projects. The Regional Administrator correctly determined that the project is not eligible for funding under Section 406 mitigation.

Regarding the timeframe for submitting the appeal, the Applicant submitted its appeal within 60 days of the date GOHSEP notified it of FEMA’s determination. GOHSEP did not notify the Applicant promptly of FEMA’s determination. In addition, it appears that the project, if determined eligible, would have qualified as a categorical exclusion. Therefore, these were not valid reasons for denying the appeal.

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision that the installation of the flap gates was not an eligible Section 406 hazard mitigation project is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.

Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth A. Zimmerman
Assistant Administrator
Disaster Assistance Directorate

cc: Gary Jones
Acting Regional Administrator
Region VI

Tony Russell
Acting Director
Transitional Recovery Office

Last updated
Return to top