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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#PA ID 000-UTFMG-00
PW ID#1566
Date Signed2017-10-23T00:00:00

Conclusion: Funding is precluded because another Federal program is specifically designated to address the maintenance and restoration of PO-24 and there is a duplication of benefits.  Additionally, the other costs associated with PO-01 are under the minimum project threshold.

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 damaged a gate stem cover at the Applicant’s Hopedale Hydrological Restoration Water Control Structure (PO-24) and a chain link fence that surrounds the Applicant’s Violet Siphon Freshwater Diversion Structure (PO-01).  FEMA prepared Project Worksheet 1566 to document the work, finding the work at PO-24 ineligible due to a lack of a regular maintenance plan and the work being the responsibility of another federal agency.  FEMA wrote PW 1566 for zero dollars since repair costs at PO-01 were less than the $1,000.00 minimum PW threshold.  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) PO-24 has an established maintenance plan and budget providing for regular inspection and maintenance.  The FEMA Region VI Regional Administrator denied the first appeal finding that: (1) PO-24 was federally funded by the National Marine Fisheries Service (NMFS) under the CWPPRA and remains under NMFS authority for the 20 year life of the project and (2) the Applicant’s estimated repair costs for PO-01 are less than the minimum PW threshold, and are therefore ineligible.  On second appeal, 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 NMFS funded the repairs for PO-24 on a discretionary basis, it did so with the understanding that the O&M budget would be reimbursed by FEMA.  

Authorities and Second Appeals

  • Stafford Act § 312(a).
  • 16 U.S.C. § 3951-3956.
  • 44 C.F.R. §§ 206.201(c), (j), 206.202(d)(2), 206.226(a), (j).
  • PA Guide, at 41, 98.
  • 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.
  • Stafford Act Section 312 specifically prohibits applicants from receiving duplicate financial assistance.
    • The cost share agreement between the Applicant and NMFS creates a duplication of benefits.
  • 44 C.F.R. § 206.202(d)(2) states that when the estimated cost of work on a project is less than $1,000.00, that work is not eligible and FEMA will not approve a project worksheet for the project.

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) 1566 – Legal Responsibility – Other Federal Agency – Duplication of Benefits

Dear Mr. Waskom:

This is in response to a letter from your office dated December 10, 2015, 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 $780.00 for chain link fence repairs at the Violet Siphon Freshwater Diversion Structure and $500.00 to replace a gate stem cover at the Hopedale Hydrological Restoration Water Control Structure.

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 remaining funding request is below the minimum project threshold amount.  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 a gate stem cover[1] at the Applicant’s Hopedale Hydrological Restoration Water Control Structure (PO-24) and a chain link fence that surrounds the Applicant’s Violet Siphon Freshwater Diversion Structure (PO-01). 

PO-24 was funded by the U.S. Department of Commerce National Marine Fisheries Service (NMFS) through a cooperative agreement with the Louisiana Department of Natural Resources to protect 3,086 acres of marsh.[2]  The agreement was entered into pursuant to the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA).[3]  State responsibilities for PO-24 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.[4]

FEMA prepared Project Worksheet (PW) 1566 to document replacement of the gate stem cover at PO-24 for $500.00 and repair of the chain link fence at PO-01 for $780.00.  FEMA found the work at PO-24 ineligible due to a lack of a regular maintenance plan and the work being the responsibility of another federal agency.[5]  FEMA wrote PW 1566 for zero dollars since repair costs at PO-01 were less than the $1,000.00 minimum PW threshold.[6]

First Appeal

The Applicant appealed FEMA’s determination on October 18, 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) PO-24 has an established maintenance plan and budget providing for regular inspection and maintenance.[7] 

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on December 17, 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 NMFS funding for PO-24 does not prohibit FEMA from providing funding.[8]

On June 19, 2014, FEMA sent a Final Request for Information (RFI) to the Grantee.  With regard to PO-24, the Agency requested: (1) several attachments not included in the Operation, Maintenance, and Rehabilitation Plan; (2) maintenance and/or inspection records; (3) annual inspection reports; (4) evidence that the gate stem covers were in place prior to Hurricane Isaac; (5) clarification as to the governing cooperative agreement with NMFS; and (6) receipts, invoices, and timesheets to demonstrate that the work to replace the four gate stem covers was completed.[9]  In its response to the Final RFI, the Applicant provided the requested documentation and clarified that only one gate stem cover required replacement, but the work had not yet been completed.[10] 

The FEMA Region VI Regional Administrator (RA) denied the first appeal on August 6, 2015.  The RA found that PO-24 was federally funded by the NMFS under the CWPPRA and remains under NMFS authority for the 20 year life of the project.  The RA also determined the remaining estimated repair costs for PO-01 were less than the minimum PW threshold.  As such, the RA concluded all of the costs were ineligible.[11]

Second Appeal

The Applicant submitted its second appeal by letter dated October 12, 2015.  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 NMFS funded the repairs for PO-24 on a discretionary basis, it did so with the understanding that the O&M budget would be reimbursed by FEMA.[12] 

The Grantee transmitted the second appeal to FEMA Region VI on December 10, 2015 and supplemented the Applicant’s argument.  The Grantee asserts that CWPPRA does not establish responsibility in another federal agency to assist the Applicant and therefore those costs should be eligible.  Additionally, it argues that the combined costs for PO-01 and PO-24 exceed the minimum PW threshold, or in the alternative, FEMA should consolidate similar eligible projects into a single PW to meet the minimum PW threshold.[13]

Discussion

Responsibility of Other Federal Agency

The Applicant claims that FEMA’s denial of eligibility of PW 1566 was erroneous as there is no other federal agency responsible for funding the subject disaster-related repairs.[14]  The Applicant argues that the cooperative agreement between the NMFS and the Applicant does not convey specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages;[15] NMFS, 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.”[16]  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.”[17]  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.”[18]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[19] 

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.”[20]  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.

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,[21] including contracts.[22]  The cooperative agreement that covers PO-24 requires the Applicant to assume maintenance responsibilities for the expected life of the project,[23] which is 20 years from 1998.[24]  The NMFS is required to reimburse the Applicant for 85 percent of such costs, subject to the availability of funding.[25]  The NMFS and Applicant developed an operation, maintenance, and rehabilitation plan, which 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 plan.  In fact, the plan specifically requires the Applicant and NMFS to conduct joint inspections “after major storm events”[27] and the Applicant must submit a report to the NMFS detailing the condition of the project and recommendations, including the estimate costs, for any corrective actions.[28]  The cooperative agreement and associated operation, maintenance, and rehabilitation plan between the Applicant and NMFS create an available source of duplicate funding to repair the gate stem cover at PO-24.[29]  To this point, the Applicant indicates that the NMFS has funded repair of the gate stem cover at PO-24 in this instance.[30] 

As such, FEMA is prohibited from providing assistance that duplicates the benefits the Applicant has already received from NMFS.  The Applicant’s expectation that the repairs were eligible and that FEMA would ultimately reimburse its O&M 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] 

Minimum PW Threshold

When the estimated cost of work on a project is less than $1,000.00, that work is not eligible and FEMA will not approve a PW.[33]  FEMA is able to combine sites less than $1,000.00 in estimated costs into one PW when the work meets certain conditions.[34]  These conditions can include: (1) a similar type of facility, such as sewer pump stations or gravel roads; (2) a system, such as repair of several breaks in a water distribution system; (3) boundaries, such as dividing power lines into sectors or roads into divisions; and (4) a similar method of work, such as a group of contracts let to one contractor.[35]  Separate sites less than $1,000.00 in estimated costs without a reasonable relationship to other sites may not be combined and are ineligible.[36]  In this case, the Applicant’s request for $780.00 in funding to repair its chain link fence repairs at PO-01 is less than the $1,000.00 minimum PW threshold.  Aside from stating that the project should be consolidated, the Applicant and Grantee have not proffered information demonstrating that the repair work is reasonably related to another project site or that one of the previously mentioned conditions is met.  Therefore, there is nothing to indicate the RA’s determination is erroneous.

Conclusion

FEMA finds the requested funding ineligible because there is another Federal program specifically designed to address the maintenance and restoration of PO-24.  Further, FEMA finds that the cooperative agreement duplicates benefits available and the Applicant has in fact received assistance from NMFS for the repair work to the gate stem.  Finally, the RA appropriately determined that the $780.00 in chain link fence repairs at PO-01 is ineligible because the amount is below the minimum project threshold.  Consequently, the Applicant’s second appeal is denied.

 


 

[1] PW 1566 documents damage to four gate stem covers, however in its response to the Final Request for Information, the Applicant clarified that only one gate stem cover required replacement.

[2] Cooperative Agreement between U.S. Dept. of Commerce National Marine Fisheries Service and State of Louisiana Department of Natural Resources, Scope of Services, Design and Construction of the Hopedale Hydrologic Restoration Project PO-24 (PPO-38), at 1 (Aug. 10, 1999) [hereinafter Cooperative Agreement].

[3] 16 U.S.C. §§ 3951-3956 (2010).

[4] 2009 La. Acts 523, 67-68 (https://www.legis.la.gov/Legis/ViewDocument.aspx?d=668806).

[5] Specifically, U.S. Department of Commerce’s National Marine Fisheries Service (NMFS).

[6] Project Worksheet 1566, Office of Coastal Protection and Restoration, Version 0 (Aug. 8, 2013).

[7] Letter from Counsel, Coastal Protection and Restoration Authority, to Deputy Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Oct. 18, 2013).

[8] Letter from State Coordinating Officer, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Reg’l Adm’r, FEMA Region VI (Dec. 17, 2013).

[9] Letter from Dir., Recovery Div., FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (June 19, 2014).

[10] Letter from Counsel, Coastal Protection and Restoration Authority, to FEMA Region VI (July 16, 2014).

[11] 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 (Aug. 6, 2015).

[12] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Oct. 12, 2015) [hereinafter Applicant Second Appeal Letter].

[13] Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, FEMA, at 1, 4 (Dec. 10, 2015) [hereinafter Grantee Second Appeal Letter].

[14] Applicant Second Appeal Letter, at 3.

[15] FEMA acknowledges that the cooperative agreement between NMFS and the Applicant is not an authorizing statute, implementing regulation, or appropriation law and therefore not an authority of another federal agency.

[16] 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).

[17] 16 U.S.C. § 3956(a).

[18] Id. § 3951.

[19] Id. § 3955.

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

[21] 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”).

[22] 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).

[23] Cooperative Agreement, at 3.

[24] Id.; Applicant Second Appeal Letter, at 2 (stating 20-year life expires in 2018).

[25] Cooperative Agreement, at 2; Louisiana Department of Natural Resources, Operations, Maintenance, and Rehabilitation Plan for the Hopedale Hydrologic Restoration Project (PO-24), at 5 (Apr. 21, 2005) [hereinafter Operations, Maintenance, and Rehabilitation Plan].

[26] Operations, Maintenance, and Rehabilitation Plan, at 5.

[27] Id. at 4-5.

[28] Id. at 5.

[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. § 206.202(d)(2).

[34] PA Guide at 98.

[35] Id.

[36] Id. at 99.

Last updated May 28, 2020