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Legal Responsibility – Other Federal Agency – Duplication of Benefits

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4080
ApplicantOffice of Coastal Protection and Restoration
Appeal TypeSecond
PA ID#000-UTFMG-00,
PW ID#1557
Date Signed2017-10-23T00:00:00

Conclusion: Funding is precluded because another Federal program is specifically designated to address the maintenance and restoration of the CRMS sites and there is a duplication of benefits.  The Applicant also failed to provide documentation, such as predisaster maintenance or inspection reports, demonstrating that the damage sustained by the CRMS sites was a result of the declared disaster.

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 damaged 119 Coastal Reference Monitoring System (CRMS) sites.  FEMA prepared Project Worksheet 1557 to document the work, finding it ineligible due to a lack of a regular maintenance plan and the work being the responsibility of another federal agency.  FEMA wrote PW 1557 for zero dollars.  On first appeal, the Applicant argued that: (1) the work is eligible because there is no specific authority under the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA) to repair the damages in question; (2) FEMA’s denial of eligibility because of the legal authority of another federal agency is contrary to Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and FEMA’s regulations and policies; and (3) its consulting services contract provides for regular maintenance of the CRMS sites.  The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) the CRMS was federally funded by the U.S. Department of the Interior’s U.S. Geological Survey (USGS) under the CWPPRA and remains under USGS authority for the life of the project and (2) the Applicant’s consulting services contract does not demonstrate maintenance of the CRMS sites.  On second appeal, the Applicant argues that: (1) FEMA’s denial is erroneous because there is no other federal agency responsible for funding these disaster-related repairs and though USGS funded the repairs for the CRMS sites on a discretionary basis, it did so with the understanding that the operation and maintenance budget would be reimbursed by FEMA and (2) its consulting services contract provides for regular maintenance.   

Authorities and Second Appeals

  • Stafford Act § 312(a).
  • 16 U.S.C. §§ 3951-3956.
  • 44 C.F.R. §§ 206.223(a)(1), 206.226(a).
  • PA Guide, at 29, 33, 41.
  • FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1792-DR-LA, PW 1545 (Nov. 26, 2012).
  • FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1607-DR-LA, PW 4576, at 2 (Mar. 12, 2012)

Headnotes

  • 44 C.F.R. § 206.226(a) limits PA funding where there is another Federal authority to restore facilities. 
    • CWPPRA creates an ongoing Federal program to specifically address restoration of the barrier islands and wetlands.
  • Stafford Act § 312 specifically prohibits applicants from receiving duplicate financial assistance.
    • The cooperative agreement between the Applicant and USGS creates a duplication of benefits.
  • The PA Guide, at 33, maintains that for facilities that require routine maintenance to maintain their designated function, FEMA may review the predisaster maintenance or inspection reports to verify the predisaster condition and assess eligible disaster damage.
    • The Applicant has not provided predisaster maintenance or inspection reports to document routine maintenance of the CRMS sites.

Appeal Letter

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

Re:  Second Appeal – Office of Coastal Protection and Restoration, PA ID 000-UTFMG-00, FEMA-4080-DR-LA, Project Worksheet (PW) 1557 – Legal Responsibility – Other Federal Agency – Duplication of Benefits

Dear Mr. Waskom:

This is in response to a letter from your office dated April 15, 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 costs to repair 119 Coastal Reference Monitoring System (CRMS) sites for $214,319.43.

As explained in the enclosed analysis, I have determined that Public Assistance funding is precluded because the Coastal Wetlands Planning, Protection and Restoration Act of 1990 creates an ongoing Federal program to specifically address maintenance and restoration and there is a duplication of benefits.  The Applicant also failed to provide documentation, such as predisaster maintenance or inspection reports, demonstrating that the damage sustained by the CRMS sites was a result of the declared disaster.  Accordingly, 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/

Alex Amparo
Assistant Administrator
Recovery Directorate

Enclosure

cc: George A. Robinson
      Regional Administrator
      FEMA Region VI

 

 

Appeal Analysis

Background

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 damaged 119 Coastal Reference Monitoring System (CRMS) sites.  The CRMS is a mechanism to monitor and evaluate the effectiveness of various wetland restoration projects by collecting data at 391 different sites.  Damaged items included PVC pipes, boardwalk boards, staff gauges, and warning signs and posts. 

The CRMS sites were funded by the Department of the Interior’s U.S. Geological Survey (USGS) through a cooperative agreement with the Louisiana Department of Natural Resources to monitor, conserve, restore, create, and enhance vegetated wetlands in coastal Louisiana.[1]  The agreements were entered into pursuant to the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA).[2]  State responsibilities for the CRMS sites were transferred from the Office of Coastal Restoration and Management within the Louisiana Department of Natural Resources to the Coastal Protection and Restoration Authority (Applicant) in 2009.[3]

FEMA prepared Project Worksheet (PW) 1557 to document repair of the 119 CRMS sites for $214,319.43.  FEMA found the work to be ineligible because it was the responsibility of another federal agency[4] and the CRMS sites lacked regular maintenance plans.  FEMA wrote PW 1557 for zero dollars.[5] 

First Appeal

The Applicant appealed FEMA’s determination on August 26, 2013.  The Applicant argued that: (1) the work is eligible because there is no specific authority under the CWPPRA to repair the damages in question; (2) FEMA’s denial of eligibility because of the legal authority of another federal agency is contrary to Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and FEMA’s regulations and policies; and (3) its consulting services contract provides for regular maintenance of the CRMS sites.[6] 

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on October 25, 2013.  The Grantee’s forwarding letter emphasized that the work is not the responsibility of another federal agency, stressing that FEMA has not completed its obligation to coordinate with other agencies to determine legal responsibility.  The Grantee also argued that USGS funding for the CRMS sites does not prohibit FEMA from providing funding.[7]

On February 19, 2015, FEMA sent a Final Request for Information (RFI) to the Grantee.  The Agency requested any additional information that may support the applicant’s appeal.[8]  In its response to the Final RFI, the Applicant indicated it had submitted all required documentation.[9]

The FEMA Region VI Regional Administrator (RA) denied the first appeal on December 15, 2015.  The RA found that the CRMS sites were federally funded by the USGS under the CWPPRA and remain under USGS authority for the life of the project and that the Applicant’s consulting services contract does not demonstrate maintenance of the CRMS sites.[10]

Second Appeal

The Applicant submitted its second appeal by letter dated February 19, 2016.  The Applicant argues that FEMA’s denial is erroneous because there is no other federal agency responsible for funding these disaster-related repairs and though USGS funded the repairs for the CRMS sites on a discretionary basis, it did so with the understanding that the operation and maintenance budget would be reimbursed by FEMA.[11]  The Applicant also states that its consulting services contract provides for regular maintenance. 

The Grantee transmitted the second appeal to FEMA Region VI on April 15, 2016 and supplemented the Applicant’s arguments.  The Grantee asserts that CWPPRA does not establish responsibility in another federal agency to assist the Applicant; and even if another federal agency had legal responsibility to provide assistance, Stafford Act § 312(b) allows FEMA to provide funding if the Applicant has not yet received benefits or has only received partial benefits from the other agency.[12]

Discussion

Responsibility of Other Federal Agency

The Applicant claims that FEMA’s denial of eligibility of PW 1557 was erroneous as there is no other federal agency responsible for funding the subject disaster-related repairs.[13]  The Applicant argues that the cooperative agreement between the USGS and the Applicant does not convey specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages;[14] USGS, along with other CWPPRA task force members, have indicated they do not have authority; and CWPPRA does not authorize any specific federal agency to fund projects from its operating budget.  Moreover, the Applicant asserts that FEMA failed to comply with its responsibility to contact other federal agencies about their authority and has previously approved work for sand fence repair, which contradicts an assertion the work is another federal agency’s responsibility.

PA funding is not available when “another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”[15]  While the Applicant contends that CWPPRA does not provide for restoration for disaster related damages, FEMA disagrees.

CWPPRA authorizes the Secretary of the Army to “carry out projects to protect, restore, and enhance wetlands and aquatic/coastal ecosystems.”[16]  The definition of a coastal wetlands restoration project in the CWPPRA does not specifically address disaster related repairs, rather it states simply that project activities include but are not limited to “new projects, completion or expansion of existing or on-going projects, individual phases, portions, or components of projects and operation, maintenance and rehabilitation of completed projects.”[17]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[18] 

Further, a June 26, 2015 letter from the U.S. Army Corps of Engineers (USACE) provides that “if the Federal and State sponsors of an existing CWPPRA project submit a request to restore infrastructure constructed with CWPPRA funding that was damaged or destroyed by a storm event, the Task Force has the discretion to approve or disapprove the request.”[19]  While FEMA has not consulted with the Department of the Army regarding this project, this letter reflects the discretionary authority of USACE and the Task Force, under the CWPPRA, to approve or deny project work to repair disaster related damage.  Accordingly, FEMA finds that pursuant to the plain language of CWPPRA, the responsibility for this proposed work rests with another federal agency.  The Applicant’s claim that CWPPRA does not include or intend to authorize projects to repair hurricane damaged structures is not supported by a reading of the plain language of the Act and PA funding is not available due to another agency’s authority.

The Applicant also argues FEMA’s previous approval of work for sand fencing repair contradicts its assertion that the work is the responsibility of another federal agency.[20]  In a separate decision, FEMA determined that funding such repairs was in error.[21]

Duplication of Benefits

Stafford Act Section 312 specifically prohibits applicants from receiving duplicate financial assistance and makes applicants liable for benefits available from another source,[22] including contracts.[23]  The cooperative agreement that covers the CRMS sites requires the Applicant and USGS to assume maintenance responsibilities for the expected life of the project, through 2019.[24]  The USGS is required to reimburse the Applicant for 85 percent of such costs for the CRMS sites, subject to the availability of funding.[25]  The cooperative agreement notes that the signatories are each responsible for their respective cost shares.[26]  Contrary to the Applicant’s assertion, maintenance or rehabilitation resulting from a disaster are not excluded from the agreement.  In fact, the cooperative agreement specifically requires development of procedures to specifically identify long-term operation, maintenance, repair, replacement, and rehabilitation requirements for the CRMS sites.[27]  Moreover, following Hurricane Katrina and Rita, the Task Force created a “Storm Recovery Procedures Contingency Fund” to support immediate recovery efforts and assessments for future storm damage.[28]  The cooperative agreement and contingency fund create available sources of duplicate funding to repair the damaged CRMS sites.[29]  To this point, the Applicant indicates that the USGS has funded repair of the CRMS sites in this instance.[30] 

As such, FEMA is prohibited from providing assistance that duplicates the benefits the Applicant has already received from USGS.  The Applicant’s expectation that the repairs were eligible and that FEMA would ultimately reimburse its operation and maintenance budget[31] are unfounded.  This is especially so when considering the CWPPRA prohibits FEMA from funding the Applicant’s cost share, which must come from a non-federal source.[32] 

Maintenance

To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[33]  Repair of non-disaster related damage, or work to correct inadequacies that existed prior to the disaster, is not eligible for reimbursement.[34]  For facilities that require routine maintenance to preserve their designated function, FEMA may review predisaster maintenance or inspection reports to verify the predisaster condition and to assess eligible disaster damage.[35]  In instances where damage can be attributed to the disaster instead of lack of maintenance, repairs are eligible.  It is the applicant’s responsibility to show the damage claimed is disaster-related.[36]

The Applicant maintains that its consulting services contract provides for regular maintenance of the CRMS sites.[37]  Through a Final RFI, FEMA requested documentation to demonstrate that maintenance was performed at the CRMS sites.[38]  The Applicant did not submit any supporting documentation.[39]  While the contract does provide for maintenance,[40] the Applicant has not provided documentation, such as predisaster maintenance or inspection reports, to facilitate assessment of the predisaster condition of the CRMS sites and the identification of damage caused by Hurricane Isaac.  Without such, the Applicant has not demonstrated that the damage to the CRMS sites is the result of the declared disaster.

Conclusion

FEMA finds the requested funding ineligible because there is another Federal program specifically designed to address the maintenance and restoration of the CRMS sites.  Further, FEMA finds that the cooperative agreement provides duplicate benefits and the Applicant has in fact received assistance from the USGS to repair the CRMS sites.  Finally, the Applicant did not supply documentation, such as predisaster maintenance or inspection reports, needed to demonstrate that the damage sustained by the CRMS sites was the result of the declared disaster.  Consequently, the Applicant’s second appeal is denied.

 

[1] Cooperative Agreement between U.S. Dep’t of the Interior – Geological Survey, and the State of La. for the Coastal Wetlands Planning, Protection, and Restoration Act (CWPPRA) Coastwide Reference Monitoring System, at 2 (Aug. 14, 2008) [hereinafter Cooperative Agreement].

[2] 16 U.S.C. §§ 3951-3956 (2010).

[3] 2009 La. Acts 523, 67-68 (https://www.legis.la.gov/Legis/ViewDocument.aspx?d=668806).

[4] Specifically, Department of the Interior’s U.S. Geological Survey (USGS).

[5] Project Worksheet 1557, Office of Coastal Protection and Restoration, Version 0 (June 9, 2016).

[6] Letter from Counsel, Coastal Protection and Restoration Authority, to Deputy Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Aug. 26, 2013).

[7] Letter from State Coordinating Officer, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Reg’l Adm’r, FEMA Region VI (Oct. 25, 2013).

[8] Letter from Dir., Recovery Div., FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Feb. 19, 2015).

[9] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Apr. 28, 2015).

[10] Letter from Reg’l Adm’r, FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness and Chief Finn. Off. Coastal Protection and Restoration Authority (Dec. 15, 2015).

[11] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Feb. 19, 2016) [hereinafter Applicant Second Appeal Letter].

[12] Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, FEMA (Apr. 15, 2016) [hereinafter Grantee Second Appeal Letter].

[13] Applicant Second Appeal Letter, at 3.

[14] FEMA acknowledges that the cooperative agreements between USGS and the Applicant are not authorizing statutes, implementing regulations, or appropriation laws and therefore not authorities of another federal agency.

[15] 44 C.F.R. § 206.226(a).  This general prohibition originates from Section 312 of the Stafford Act, which prohibits an applicant from receiving duplicate financial assistance from another source.  Though subsection 312(b) allows FEMA to provide funding if a person has not yet received benefits or has only received partial benefits from another source, this subsection also requires FEMA to establish procedures to ensure uniformity in preventing duplication of benefits, which FEMA accomplished in promulgating 44 C.F.R. § 206.226(a).

[16] 16 U.S.C. § 3956(a).

[17] Id. § 3951.

[18] Id. § 3955.

[19] Letter from Dist. Counsel Chief, Dept. of the Army, Corps of Engineers, New Orleans Dist., to Counsel, Coastal Protection and Restoration Authority (June 26, 2015).

[20] Applicant Second Appeal Letter, at 7.

[21] FEMA Second Appeal Analysis, Office of Coastal Protection and Restoration, FEMA-4080-DR-LA, at 8-9 (Dec. 23, 2016).  In FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1607-DR-LA, PW 4576, at 2 (Mar. 12, 2012), FEMA incorrectly limited its review of other federal agency authority to a memorandum of agreement and a cooperative agreement and did not consider the underlying legal authority, CWPPRA, when determining the eligibility of repairs to sand fencing.

[22] Stafford Act § 312(a).  See Public Assistance Guide, FEMA 322, at 41 (June 2007) [hereinafter PA Guide] (stating “[a]n applicant may not receive funding from two sources for the same item of work”).

[23] City of Chicago v. FEMA, No. 08 CV 4234, 2013 U.S. Dist. LEXIS 41633, at 17-19 (N.D. Ill. Mar. 21, 2013) (holding that FEMA's determination that a contract for snow removal services constituted duplicate benefits was a reasonable interpretation of the Stafford Act).

[24] Cooperative Agreement, at 4, 9.

[25] Id. at 1.

[26] Id. at 4-5.

[27] Id. at 5-6.

[28] Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA) Project Standard Operating Procedures Manual, Revision 18, at 28-29 (Jul. 9, 2010).

[29] See FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1792-DR-LA, PW 1545, at 3 (Nov. 26, 2012) (finding similarly that the cost share agreement between the NRCS and applicant does not exclude disaster-related repairs).

[30] Applicant Second Appeal Letter, at 3.

[31] Id.

[32] 16 U.S.C. § 3952(f)(3).

[33] 44 C.F.R. § 206.223(a)(1); PA Guide, at 29 (2007).

[34] PA Guide, at 29.

[35] Id. at 33.

[36] Id.

[37] Applicant Second Appeal Letter, at 8-9.

[38] Letter from Dir., Recovery Div., FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness, at 2 (Feb. 19, 2015).

[39] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Apr. 28, 2015).

[40] State of La. Coastal Protection and Restoration Authority of La. Request for Proposals for Coastwide Reference Monitoring System, RFP No. 2511-12-09, at 17 (Jan. 30, 2012) (stating that “[t]he contractor will be responsible for the servicing and maintaining of approximately 381 CRMS-Wetlands sites.”).  Incorporated into State of La. Contract for Consulting Services, DNR Contract No. 2511-13-01, at 8 (May 1, 2012).

Last updated May 28, 2020