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Other Federal Agency, Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4337
ApplicantMartin (County),
Appeal TypeSecond
PA ID#085-99085-00
PW ID#PW 7331
Date Signed2021-04-05T16:00:00

Summary Paragraph

From September 4 to October 18, 2017, Hurricane Irma caused damage throughout Florida, including to the Stuart Causeway East and West Islands (spoil islands), which serve Martin County (Applicant) as public parks but were originally designed to facilitate State Road A1A, a Florida Department of Transportation (FDOT) Federal-aid road eligible under the Federal Highway Administration (FHWA), over the Indian River Lagoon.  FEMA prepared Project Worksheet 7331 to document the damage and issued a determination memorandum partially approving $8,332.41 to restore lost park amenities but disallowing $136,587.66 for the repair of shoreline erosion.  FEMA found that the Maintenance Memorandum of Agreement (MMOA) between the Applicant and FDOT indicated that the Applicant had legal responsibility for only landscape maintenance, not erosion control or any permanent work within the FDOT right of way.  The Applicant submitted a first appeal, asserting it was legally responsible for shoreline repairs because, although not explicitly outlined in the MMOA, FDOT refused responsibility for shoreline maintenance.  The FEMA Region IV Regional Administrator denied the first appeal, finding the Applicant did not demonstrate that it had legal responsibility for the shoreline repairs and that FEMA does not have the statutory authority to fund repairs that would typically be eligible for reimbursement through the FHWA’s Emergency Relief (ER) Program.  The Applicant submitted a second appeal asserting the damages are to recreational islands, not structural components of the Federal-aid route, and are ineligible for relief from the ER Program.

 

Authorities and Second Appeals

  • Stafford Act § 406(a)(1).
  • 44 C.F.R. §§ 206.223(a)(3), 206.226(a)(1).
  • PAPPG, at 21, 116.
  • Second Appeal Analysis, Town of York, FEMA-4367-DR-ME, at 4.

 

Headnotes

  • Per 44 C.F.R. § 206.226(a)(1), generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged by a disaster.  The PAPPG, at 116, provides that the FHWA has authority to restore public roads under the ER Program.  Federal-aid routes are not eligible for permanent work even if the ER Program is not activated or if the program is activated but FHWA does not provide funding for the work.  In Town of York, FEMA found that a facility was not eligible for PA even if FHWA did not provide assistance, so there will be times when no assistance is available for the repair of some facilities.
    • The spoil islands are in the FHWA right of way so FDOT has specific authority to restore them.  Even though FHWA has not provided funding for the work through the ER Program, the work is not eligible for PA.
  • Per 44 C.F.R. § 206.223(a)(3), to be eligible for financial assistance, an item of work must be the legal responsibility of the applicant.  The PAPPG, at 21, provides that facilities owned and maintained by Federal agencies are not eligible.  FEMA reviews the agreement between the Federal agency and the Applicant to confirm the legally responsible entity.
    • The Applicant has not demonstrated that it was legally responsible to perform the work because the MMOA does not specify that the work falls under its responsibilities.  Therefore, the work is not eligible for PA.

 

Conclusion

FEMA finds that the spoil islands are in a Federal-aid route’s right-of-way and the Applicant has not demonstrated that it was legally responsible for the claimed work.  Therefore, this appeal is denied.

 

Appeal Letter

Jared Moskowitz

Director

Florida Division of Emergency Management

2555 Shumard Oak Blvd.

Tallahassee, Florida 32399-2100

 

Re:       Second Appeal – Martin (County), PA ID: 085-99085-00, FEMA-4337-DR-FL, Project Worksheet 7331 – Other Federal Agency, Legal Responsibility

 

Dear Mr. Moskowitz:

This is in response to a letter from your office dated January 14, 2021, which transmitted the referenced second appeal on behalf of Martin County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $345,149.00 for repairs to the Stuart Causeway East and West Islands (spoil islands).

As explained in the enclosed analysis, I have determined that the spoil islands are in a Federal-aid route’s right-of-way and the Applicant has not demonstrated that it was legally responsible for the claimed work.  Therefore, this appeal is denied.

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/

                                                                          Ana Montero

                                                                          Division Director

                                                                          Public Assistance Division

                                                                       

cc:  Gracia Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

From September 4 to October 18, 2017, strong winds, heavy winds, and storm surge from Hurricane Irma caused damage throughout Florida, including to the Stuart Causeway East and West Islands (spoil islands) in Martin County (Applicant).  The spoil islands serve the Applicant as public recreational facilities, but were originally designed to carry State Road A1A (SR-A1A) over the Indian River Lagoon.[1]  SR-A1A is a Florida Department of Transportation (FDOT) Federal-aid route eligible under the Federal Highway Administration (FHWA). 

FEMA prepared Project Worksheet 7331 to document damage to the spoil islands, which consisted of shoreline erosion and loss of park amenities, such as signage, irrigation pipes, lights, and fencing.  On May 21, 2019, FEMA issued a determination memorandum partially approving the project for $8,332.41 for the restoration of the park amenities, but denying $136,587.66 in estimated shoreline erosion repair costs.  FEMA found that the Maintenance Memorandum of Agreement (MMOA) between the Applicant and FDOT indicated that the Applicant had legal responsibility for landscape maintenance of the spoil islands only and did not indicate that the Applicant had legal responsibility for work such as erosion and sediment control or any permanent work within the FDOT right of way.

 

First Appeal

On July 8, 2019, the Applicant appealed, asserting that it was legally responsible for repairs to the spoil islands’ shoreline and other facilities.  The Applicant provided and referenced a letter from FDOT in which that agency refused any responsibility for continual shoreline maintenance and erosion control, and in response, the Applicant was working on amending the original MMOA to include all elements of the spoil islands under its own maintenance responsibilities.  In addition, while the Applicant acknowledged that SR-A1A is eligible under FHWA, it stated that the spoil islands, which are below and separate from that road, are not eligible for FHWA assistance.  The Applicant also provided its own project cost estimate of $345,149.00, which it asserted was more accurate than FEMA’s repair estimate.  The Grantee supported the first appeal in an August 12, 2019 letter.

On January 21, 2020, FEMA issued a request for information seeking documentation that the spoil islands did not fall under the SR-A1A right of way and the claimed repairs would not be eligible under FHWA’s Emergency Relief (ER) Program.  FEMA clarified its request in a follow-up email requesting any additional documentation in support of the Applicant’s legal responsibility for the spoil islands, specifically, maintenance records or documentation indicating that it allocated funding for island maintenance.  On April 24, 2020, the Applicant replied with an email from FDOT stating that the spoil islands are located within the FDOT right of way, but the Applicant is responsible for maintaining the spoil islands’ shorelines as well as the improvements installed on them for recreational public use as outlined in the MMOA.  Also, SR-A1A is above and separate from the island public parks and recreational areas underneath, and any damages to the island improvements and shorelines are not eligible under the ER Program.

In a first appeal decision dated October 1, 2020, the FEMA Region IV Regional Administrator denied the first appeal, finding that erosion and sediment control along SR-A1A was eligible for ER funding and thus ineligible for Public Assistance (PA) funding.  Also, the MMOA states that the Applicant is only responsible for maintenance to landscape, irrigation, and hardscape, not for shoreline erosion repairs.  Therefore, FEMA determined that the Applicant did not demonstrate that it had legal responsibility for the shoreline repairs and FEMA does not have the statutory authority to fund repairs that would typically be eligible for reimbursement through the ER Program. 

 

Second Appeal

The Applicant submitted a second appeal on November 30, 2020, reiterating its request for $345,149.00 in estimated repair costs.  The Applicant explains that the spoil islands were originally created for SR-A1A with a series of connecting bridges, but were taken out of use by the roadway when the current bridge was constructed starting in 2007.  The elevated roadway therefore functions completely separate from the spoil islands beneath it.  Thus, the damages are to recreational islands, not structural components of the Federal-aid route, and are ineligible for the ER Program since the damages did not impact transportation services.  On January 14, 2021, the Grantee transmitted the second appeal to FEMA, recommending its approval.

 

Discussion

Other Federal Agency

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act authorizes FEMA to reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[2]  Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is caused by a major disaster.[3]  FHWA has authority to restore public roads under the ER Program.[4]  Federal-aid routes are not eligible for permanent work even if the ER Program is not activated or if the program is activated but FHWA does not provide funding for the work.[5]

The spoil islands were originally designed to carry SR-A1A, along with three bridges, over the Indian River Lagoon.  The three bridges were replaced with a single bridge around 2007, so the FHWA no longer needs the islands to support the roadway.  The Applicant has also asserted that the damage would not be eligible for the ER Program because it did not impact transportation services.  Nevertheless, the islands still lie within the Federal-aid route’s right of way, and the MMOA makes clear that FDOT has the authority to make any changes to the islands in the future if it needs to expand or otherwise make changes to the roadway.  The MMOA therefore indicates that the spoil islands remain under the authority of FDOT on behalf of the FHWA, giving the FHWA the specific authority to restore them.  As a result, the permanent work is not eligible for PA funding, even though the FHWA has not provided, or will not provide, ER Program funding.[6] 

 

Legal Responsibility

To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant.[7]  Facilities owned and maintained by Federal agencies are not eligible.[8]  However, if a Federal agency constructed a facility and formally designated the applicant as the legally responsible entity for facility operation, maintenance, and repairs, then the facility may be eligible.[9]  FEMA reviews the agreement between the Federal agency and the applicant to confirm the legally responsible entity.[10]

Per the MMOA FDOT established with the Applicant, FDOT has the authority to remove landscape if the road needs to be widened, altered, or otherwise changed to meet future criteria or planning.[11]  FDOT also has the authority to terminate the agreement and to decide all disputes.[12]  The Applicant’s maintenance responsibilities are limited to landscape, hardscape, and irrigation, and the Applicant must seek approval from FDOT for any intended changes.[13]  Erosion control and shoreline maintenance (the work on appeal) are not included in the Applicant’s maintenance responsibilities.  On first appeal, the Applicant provided a proposed amendment to the MMOA to include shoreline maintenance, but it has not been approved by FDOT and was not in effect at the time of the disaster.  The Applicant has not provided documentation to demonstrate it is legally responsible for the claimed work associated with shoreline erosion repairs.

 

Conclusion

FEMA finds that the spoil islands are in a Federal-aid route’s right-of-way and the Applicant has not demonstrated that it was legally responsible for the claimed work.  Therefore, this appeal is denied.

 

[1] Prior to 2007, the road crossed the lagoon via a series of three bridges connected to the two spoil islands.  The series of bridges were then replaced with a single bridge starting in 2007.

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1), Title 42, United States Code § 5172(a)(1) (2012).

[3] Title 44 Code of Federal Regulations (C.F.R.) § 206.226(a)(1) (2016).

[4] Public Assistance Program and Policy Guide, FP 104-009-2, at 116 (April 2018) [hereinafter PAPPG].

[5] Id.

[6] FEMA Second Appeal Analysis, York (Town of), FEMA-4367-DR-ME, at 4 (Sept. 16, 2020) (finding that the facility was not eligible for PA funding and remained ineligible even if the ER program was not activated, or if the program was activated but FHWA did not provide funding for the work).

[7] 44 C.F.R. § 206.223(a)(3).

[8] PAPPG, at 21.

[9] Id.

[10] Id.

[11] District Four (4) Maintenance Memorandum of Agreement, State of Fla. Dep’t of Transp.-Martin Cnty., at paragraph 4 (Dec. 28, 2006).

[12] Id. at paragraphs 7, 13.

[13] Id. at paragraph 2.  The Applicant agreed to maintain: (1) the landscape and irrigation within the medians and areas outside the travel way to the right of way line; and (2) all landscaped/turfed areas and areas covered with interlocking pavers or similar type surfacing (hardscape) within the median and areas within the travel way to the right of way line, including paver sidewalks, paver intersections and all paver header curbs, stamped asphalt and concrete areas.

Last updated April 7, 2021