Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	City of Port Aransas
Appeal Type	Second
PA ID#	355-58808-00
PW ID#	GMP 46842/ PW 6236
Date Signed	2023-04-10T16:00:00

Summary Paragraph

From August 23-September 15, 2017, Hurricane Harvey impacted the State of Texas, including the City of Port Aransas (Applicant). The Applicant requested Public Assistance (PA) funding for damage to the Charlie’s Pasture Shoreline Bulkhead and the land behind it in the Port Aransas Nature Preserve (collectively Facility). In 2019, the Applicant notified FEMA of additional land erosion damages to the Facility. FEMA sent a request for information (RFI), related to the updated damages inventory (DI). The Applicant submitted a scope modification and cost change request for additional Facility damages and responded to the RFI, providing documentation and explaining the damage discovery dates, FEMA notifications, and the permitting process. On September 27, 2021, FEMA issued a Determination Memorandum partially denying the Applicant’s request. FEMA determined that the claimed additional land erosion damages were ineligible for PA funding because the damages resulted from the Applicant’s failure to take preventative measures to protect the Facility from further damage and not as a direct result of the declared disaster. The Applicant appealed. On November 3, 2022, the FEMA Region 6 Regional Administrator denied the appeal. FEMA determined that the Applicant did not demonstrate that the additional claimed land erosion damages resulted directly from the disaster or take preventative measures to protect the Facility from further damage after the declared disaster. The Applicant submitted a second appeal, reiterating its first appeal arguments and arguing that the unrepaired disaster-caused breaches to the revetment on adjacent property continued to allow land erosion damage to occur from tidal wave action and ships’ wakes to its Facility.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. §§ 206.206 (a), 206.223(a)(1).
• PAPPG, at 19, 142.
• West Turin, FEMA-4472-DR-NY, at 3.

Headnotes

• FEMA does not provide PA funding for repair or damage that results from a cause other than the designated event such as damage caused by the Applicant’s failure to take measures to protect a facility from further damage.
  • The Applicant did not demonstrate that the additional land loss damage was the direct result from the declared disaster and not due to its failure to protect the Facility from further damage.

Conclusion

The Applicant has not demonstrated that the additional claimed land erosion damages are a direct result of the declared incident, rather than its failure to protect the Facility from further damage. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 23-September 15, 2017, the State of Texas, including the City of Port Aransas (Applicant), was impacted by high winds, severe storms, and flooding from Hurricane Harvey.[1]

The Applicant requested Public Assistance (PA) funding in 2017 for damages resulting from storm surge and wind-driven waves that overtopped the Charlie’s Pasture Bulkhead, damaging sidewalks and curbs and washing out sections of the bulkhead and large quantities of fill at the base and under the sidewalks as well as native soil from the Nature Preserve behind the bulkhead (collectively Facility).[2]

On November 26, 2019, the Applicant notified FEMA it identified additional claimed land erosion damages and thereafter provided additional damage inventory (DI) items and requested the project be revised to include additional land erosion damage to the Facility. In May 2020, the Applicant requested an expedited Category B, emergency work project (installation of a temporary sheet piling bulkhead) as a preventative measure to stop land erosion occurring adjacent to an increased breach in the Facility’s bulkhead.[3] The Applicant began work on a temporary bulkhead in October 2020. On March 12, 2021, FEMA obligated $6,732,446.04 to repair the Facility damages originally identified in 2017.

On August 2, 2021, the Texas Division of Emergency Management (Recipient) transmitted the Applicant’s scope modification and cost change request for the Facility, which sought to increase total claimed costs by $2,063,950.00 for an additional 42,045 cubic yards (CY) of native soil fill material in the Nature Preserve, identified in the Applicant’s DI following its November 26, 2019 communication, and by $93,035.00 for an additional 4,045 CY of fill for the area behind the bulkhead between the sidewalks and the streets. On August 7, 2021, FEMA sent a Request for Information (RFI). The RFI sought dates and information to explain the Applicant’s reason for the additional claimed DI items.[4] The Applicant responded to the RFI, providing specific dates and explanations for the additional claimed DI items and copies of supporting documents, including a timeline of events. The Applicant stated that it immediately noticed land erosion damages after the disaster, but at the beginning of the post-disaster recovery, the main discussions between the Applicant and other entities centered on who would be responsible to repair damages to the bulkhead. The Applicant stated it was not until November 2019 that FEMA and the Applicant began to have conversations regarding land erosion behind the bulkhead. The Applicant then stated it took no temporary measures to protect the Facility until after May 2020, when the land erosion damages began to threaten a large pavilion, and it requested authorization for a Category B, emergency work.[5]

On September 27, 2021, FEMA issued a Determination Memorandum (DM) partially granting the Applicant’s request. FEMA found that the original claimed damages to the Facility were a direct result of the declared disaster and therefore eligible for PA but determined that the $2,146,660.00 in fill costs for the additional claimed DI items for land erosion damages were not eligible for PA. FEMA found that the additional claimed land erosion damages resulted from the Applicant’s failure to take preventative measures to appropriately protect the Facility from further damage after the declared disaster. Thus, FEMA determined that the additional claimed land erosion damages were not a direct result of the declared disaster.

First Appeal

On December 17, 2021, the Applicant appealed the denial of $2,146,660.00 in costs to repair the additional claimed land erosion damages to its Facility. The Applicant stated several reasons to support its argument that FEMA’s DM was in error, including that: (1) delays were caused by permitting and funding processes and resolution of the Applicant’s legal responsibility for repairs; (2) the additional land erosion damages to the Facility were not present during the initial damage reporting period; and (3) a contention the additional land erosion damages were caused after the disaster due to tidal wave action and wakes from passing ships. The Texas Division of Emergency Management (Recipient) forwarded the appeal with its letter of support.

On November 3, 2022, the FEMA Region 6 Regional Administrator denied the appeal. FEMA determined that the Applicant did not: (1) demonstrate the Facility’s additional land erosion damages resulted directly from the declared disaster; or (2) take preventative measures to appropriately protect the Facility from further damage after the declared disaster.

Second Appeal

On January 4, 2023, the Applicant submitted its second appeal, reiterating its first appeal arguments and restating it began work to install a temporary bulkhead in October 2020 as soon as it obtained the necessary permits from the State of Texas, the Recipient, U.S. Army Corps of Engineers, National Oceanic and Atmospheric Administration, and Environmental and Historic Preservation. The Applicant asserts that the types of mitigation available were limited and that subsequent weather events did not cause the land erosion. Moreover, the Applicant states that the additional claimed land erosion damages were caused by the three unrepaired breaches to the adjacent General Land Officer (GLO) revetment, also damaged from the declared disaster. It states that these revetment breaches continue to allow land erosion damages to occur to its Facility from wave action and ocean-going ships’ wakes. The Recipient forwarded the appeal with its supporting letter.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by a major disaster.[6] To be eligible for PA, work must be required as a direct result of the declared incident.[7] FEMA does not provide PA funding for repair of damage caused by the Applicant’s failure to take measures to protect a facility from further damage.[8] The burden to substantiate appeals with documented justification falls exclusively on the applicant and hinges upon the applicant’s ability to not only produce its own records, but to clearly explain how those records support its appeal.[9]

The Applicant acknowledges that the breach in the bulkhead lengthened and the claimed land erosion damages to its Facility occurred over time following the disaster. On second appeal, the Applicant notes that it had no responsibility to repair breaches to the revetment on adjoining GLO property and argues that these unrepaired revetment breaches are what continued to allow land erosion damages to occur to its Facility from tidal wave action and ocean-going ships’ wakes after the disaster. However, the Applicant’s lack of responsibility to effect repairs to the revetment does not mitigate the Applicant’s failure to take measures to address the continuing land erosion damages to its Facility. The Applicant acknowledged it did not enact temporary protective measures until May 2020. This acknowledgement is further supported by the documentation showing the Applicant did not begin to install a rip rap barrier until July 2020, a temporary steel bulkhead until October 2020, or a permanent concrete bulkhead until   

January 2021. Regardless of the Applicant’s argument regarding the reasons for its delay (e.g., permitting issues), the Facility was unprotected from continuing land erosion for an extended period of time post-disaster. Thus, the Applicant has not demonstrated that the additional claimed land erosion damages are a direct result of the declared incident, rather than its failure to protect the Facility from further damage.

 

Conclusion

The Applicant has not demonstrated that the additional claimed land erosion damage is a direct result of the declared incident, rather than its failure to protect the Facility from further damage. Therefore, this appeal is denied.

 

[1] On August 25, 2017, the President declared Hurricane Harvey a major disaster.

[2] The Facility includes the Charlie’s Pasture Shoreline Bulkhead and that portion of the Nature Preserve behind the bulkhead. The bulkhead is a structure erected parallel to and near the high-water mark to protect the shoreline and the Nature Preserve against erosion caused by waves and the wakes of ocean-going ships traveling through the Corpus Christi Ship Channel. The disaster also caused three breaches in the riprap revetment at the Port Aransas Nature Preserve west of the bulkhead. This revetment is owned and maintained by the Texas General Land Office.

[3] Letter from City Mgr., City of Port Aransas, to Tex. Div. of Emergency Mgmt. (May 1, 2020). The Applicant explained that the 200 linear foot breach of Charlie’s Pasture Bulkhead caused fast current, wave action and turbulence with the Nature Preserve, which in turn resulted in extensive land erosion of the Nature Preserve and failure of another portion of the bulkhead. The Applicant also stated it did not anticipate the land erosion would increase “exponentially” over the prior couple months or that Grants Manager Project 46842 would still not be obligated at this stage.

[4] The Request for Information (RFI) sought the date the Applicant: 1) first noticed the land loss; 2) had any conversations with FEMA; 3) requested a separate Project Worksheet for the land loss; 4) provided permitting and damage inventory (DI) information to FEMA; 5) agreed to install temporary sheet piling; and 6) began the permitting process. The RFI also sought information about what temporary protective measures the Applicant undertook following the disaster.

[5] The dates and explanations also included the Applicant’s request for a separate project in January 2020 for the land erosion damages; informing FEMA in March 2020 about its permitting status which discussions and process began in 2018; and a DI request in June 2020. The Applicant explained it submitted the Category B, emergency work request in May 2020 because the permanent installation of temporary sheet piling where the prior bulkhead existed was not cost effective. The documents also included the DI, meeting notes, emails, bulkhead repair work commencement notification, permits, and aerial photographs.

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

[7] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016); Public Assistance Program and Policy Guide, FP-104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[8] PAPPG, at 19.

[9] 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, West Turin (Town of), FEMA-4472-DR-NY, at 3

 (Oct. 14, 2022).