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Community Correction Center Hazard Mitigation Proposal
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1049-DR-LA; Orleans Parish Criminal Sheriff's Office; DSR 73258, Community Correction Center Hazard Mitigation Proposal
Cross Reference: NEPA, Floodplain Management, Hazard Mitigation
Summary: As a result of the 1995 severe storms, tornadoes and flooding, the applicant's Community Correction Center facility sustained considerable flood damages to the building and its contents, particularly within the building's basement that mainly housed the kitchen area, food commissary rooms and the prison laundry. FEMA prepared ten Damage Survey Reports (DSRs); one Category A ($19,406), one Category B ($307,314) and eight Category E ($7,181,696). The existing Community Correction Center and its surrounding property are located in the 100-year floodplain. In September 1995, the applicant submitted a Hazard Mitigation Proposal (HMP) in the amount of $1,604,700 for construction of a replacement facility for the kitchen in the adjacent parking lot area, raising the new facility above the base flood elevation. FEMA regional staff apparently misplaced the HMP request. The applicant proceeded with the work prior to receiving a response to the request. It was not until project closeout in November 1997, that FEMA became aware that the new building construction was performed. FEMA then considered the HMP but denied funding on the basis that the applicant proceeded with the work without providing FEMA the opportunity to complete an environmental review as required by NEPA. The applicant submitted a first appeal asserting that they were never notified of the NEPA review requirement. The Regional Director denied the appeal due to the failure to complete the NEPA review. The applicant's second appeal asserts that the work performed did not mandate a NEPA review and that all pertinent environmental laws and regulations were considered and adhered to when applicable.
Issues:
As a result of the early May 1995 severe storms, tornadoes and flooding (FEMA-1049), the Orleans Parish Criminal Sheriff's Office's (applicant) Community Correction Center facility sustained various damages to the building and its contents. Considerable flood damages occurred within the building's basement that mainly housed the kitchen area, food commissary rooms and the prison laundry. The applicant requested assistance from the Federal Emergency Management Agency (FEMA) for repair of disaster-related damages.
On May 19, 1995, a site inspection was made by representatives of FEMA, the State of Louisiana Office of Emergency Preparedness (State) and the applicant to observe the site conditions. Based on the site visit and subsequent reviews of eligible damages, FEMA prepared ten Damage Survey Reports (DSRs); one Category A ($19,406), one Category B ($307,314) and eight Category E ($7,181,696).
The existing Community Correction Center and its surrounding property are located in the 100-year floodplain. The structure, and in particular its basement level, had suffered similar damages in previous major flood events. Therefore, the applicant decided that it was not prudent to rebuild the kitchen facilities in the same flood prone area. With its own funds, the applicant designed and constructed a replacement kitchen facility in the adjacent existing paved parking lot area. The new kitchen facility was constructed above the 100-year flood elevation. Construction of the new facility began in early November 1996 and was completed in September 1997.
The applicant prepared a Hazard Mitigation Proposal (HMP) requesting FEMA fund the costs associated with moving the kitchen facility in the amount of $1,604,700. The request was made to FEMA in September 1995, but apparently was misplaced. FEMA's project closeout team visited the applicant's office in early November 1997 and discovered the additional work performed by the applicant to relocate the facilities. The FEMA inspector informed the applicant that the HMP could not be located at the Regional office and assisted the applicant in resubmitting the proposal. On December 8, 1997, FEMA denied the request for the Hazard Mitigation funding, in part on the basis that the applicant performed the work without providing FEMA the opportunity to complete an environmental review as required by the National Environmental Policy Act (NEPA).
First Appeal
The applicant submitted a first appeal of FEMA's denial of the HMP funding, transmitted by the State in a letter dated March 11, 1998. The applicant asserted that they had contacted the State on several occasions to determine the status of the HMP and had been advised by the State that FEMA was processing the proposal and to continue with the repair work. In response to the NEPA issue of the HMP denial, the applicant asserted that they were never told about a NEPA review requirement. It is the applicant's position that if FEMA waited 2-1/2 years to inform them of the NEPA requirements, they should not be penalized for the delay.
The Regional Director denied the appeal in a letter dated July 7, 1998. The basis for the denial again was that the work proceeded without fulfilling the specific documentation and procedural requirements of NEPA and, therefore, may not be considered for federal funding.
Second Appeal
The applicant submitted a second appeal of FEMA's determination, transmitted and supported by OES in a letter dated September 21, 1998. The applicant asserts that the work performed did not mandate an environmental assessment or an environmental impact statement. In an affidavit prepared by their project architect, the architect asserts that pertinent environmental laws and regulations were considered and adhered to when applicable.
The Regional Director forwarded the applicant's appeal to FEMA Headquarters in a letter dated December 8, 1998. However, since receipt of the appeal, the Office of the Inspector General (IG) has been reviewing the applicant's projects. Response to the appeal was, therefore, postponed until completion of the IG's review. The results of the IG's review, however, have no specific bearing on the issues of this appeal.
DISCUSSION
The primary issue of the appeal is associated with FEMA's determination that the completed work would have required a NEPA review prior to project approval, primarily due to the conduct of work within the 100-year floodplain.
NEPA requires every Federal agency to follow a specific planning process to ensure that agency decision-makers and local governments have considered, and the general public is fully informed about, the environmental consequences of a Federal action. This review and consultation process is used to evaluate the impact a project and its alternatives may have on the environment. The process must be completed prior to obligating funds and beginning work. FEMA's regulations regarding NEPA can be found in 44 CFR Part 10.
Under the NEPA review process, FEMA must consider the environmental effects of working in the 100-year floodplain as mandated by Executive Order 11988 and outlined in 44 CFR Part 9. This regulation requires that projects located within the 100-year floodplain follow a specific 8-step review process before approval of funding. This process includes initial public notification, identifying and evaluating alternatives, identifying and minimizing potential adverse impacts, reevaluation of the action, and a final public notification.
Certain projects are eligible for a statutory or categorical exclusion from the NEPA review process. FEMA is provided with statutory exclusions under Section 316 of the Stafford Act for specific emergency actions and for repair or restoration projects that do not affect the location, footprint, function and size of the original facility. Because the completed work involved new construction at a new location, it may not be statutorily excluded from the NEPA review process. Categorical exclusions, defined in 44 CFR 10.8(d), include actions that, through experience, FEMA has found typically will have little or no environmental impact. The FEMA Regional Environmental Officer concluded that, because the project involves new construction within the 100-year floodplain, it does not meet any of the conditions identified in these exclusions. On this basis, an environmental assessment would have been required for this project.
The applicant asserts that although a formal NEPA review was not performed, the new kitchen facility was designed and constructed to meet all applicable codes, including Life Safety and ADA compliance, as well as all environmental laws of the State, City of New Orleans and the New Orleans Sewerage and Water board. A public hearing was conducted before the City Planning Commission relative to zoning issues for the project and several adjacent property owners were present and spoke. However, in the applicant's list of environmental laws that were considered, there is no mention of Executive Order 11988 or compliance with the required 8-step review process. The referenced public hearing did not provide the public the opportunity to comment on floodplain issues. Therefore, there is no documentation to support that a proper evaluation was made for possible effects to the floodplain.
The applicant asserts that FEMA did not specifically notify them of the requirements to comply with the NEPA review process and, therefore, they should not be penalized for not complying. However, the applicant chose to proceed with the work prior to FEMA completing a review of the project for either funding eligibility or compliance with NEPA. This action by the applicant precluded FEMA from having the opportunity to perform the reth/U>Based on a review of the documentation provided by the applicant, it is concluded that the construction of the new kitchen facility within the 100-year floodplain would have required a NEPA review. Because the applicant proceeded with the work prior to FEMA having the opportunity to complete this review, we cannot fund the requested work. The applicant's appeal is denied.
Appeal Brief
| Desastre | FEMA-1049-DR |
| Applicant | Orleans Parish Criminal Sheriff's Office |
| Appeal Type | Second |
| PA ID# | 071-91023 |
| PW ID# | 73258 |
| Date Signed | 2000-07-10T04:00:00 |
Cross Reference: NEPA, Floodplain Management, Hazard Mitigation
Summary: As a result of the 1995 severe storms, tornadoes and flooding, the applicant's Community Correction Center facility sustained considerable flood damages to the building and its contents, particularly within the building's basement that mainly housed the kitchen area, food commissary rooms and the prison laundry. FEMA prepared ten Damage Survey Reports (DSRs); one Category A ($19,406), one Category B ($307,314) and eight Category E ($7,181,696). The existing Community Correction Center and its surrounding property are located in the 100-year floodplain. In September 1995, the applicant submitted a Hazard Mitigation Proposal (HMP) in the amount of $1,604,700 for construction of a replacement facility for the kitchen in the adjacent parking lot area, raising the new facility above the base flood elevation. FEMA regional staff apparently misplaced the HMP request. The applicant proceeded with the work prior to receiving a response to the request. It was not until project closeout in November 1997, that FEMA became aware that the new building construction was performed. FEMA then considered the HMP but denied funding on the basis that the applicant proceeded with the work without providing FEMA the opportunity to complete an environmental review as required by NEPA. The applicant submitted a first appeal asserting that they were never notified of the NEPA review requirement. The Regional Director denied the appeal due to the failure to complete the NEPA review. The applicant's second appeal asserts that the work performed did not mandate a NEPA review and that all pertinent environmental laws and regulations were considered and adhered to when applicable.
Issues:
- Did the project require a NEPA review?
- Is the work eligible for Hazard Mitigation funding?
- Yes. The project involved new construction within the 100-year floodplain and required a NEPA review.
- No. The applicant proceeded with the work prior to FEMA having the opportunity to complete a NEPA review. Therefore, the work cannot be funded.
Appeal Letter
July 10, 2000
Colonel Michael L. Brown
Assistant State Director
Office of Emergency Preparedness
P.O. Box 44217
Baton Rouge, LA 70804-4217
RE: Second Appeal- Orleans Parish Criminal Sheriff's Office, Community Correction Center Hazard Mitigation Proposal, FEMA-1049-DR-LA, DSR 73258
Dear Colonel Brown:
This letter is in response to your September 21, 1998, transmittal of the second appeal submitted by the Orleans Parish Criminal Sheriff's Office (applicant), contesting the Federal Emergency Management Agency's (FEMA's) decision to deny funds for the Hazard Mitigation Proposal to relocate the kitchen facility from the basement of the Community Correction Center building. FEMA denied funding on the basis that the applicant proceeded with the construction without providing FEMA the opportunity to complete an environmental review as required by the National Environmental Policy Act (NEPA).
FEMA recognizes and commends the applicant's initiative to mitigate future damages to the kitchen facility. However, as explained in the enclosed analysis, it is concluded that the construction of the new kitchen facility within the 100-year floodplain would have required a NEPA review. Because the applicant proceeded with the work prior to FEMA having the opportunity to complete this review, we cannot fund the requested work. Accordingly, the applicant's appeal is denied.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Raymond "Buddy" Young
Regional Director
FEMA Region VI
Colonel Michael L. Brown
Assistant State Director
Office of Emergency Preparedness
P.O. Box 44217
Baton Rouge, LA 70804-4217
RE: Second Appeal- Orleans Parish Criminal Sheriff's Office, Community Correction Center Hazard Mitigation Proposal, FEMA-1049-DR-LA, DSR 73258
Dear Colonel Brown:
This letter is in response to your September 21, 1998, transmittal of the second appeal submitted by the Orleans Parish Criminal Sheriff's Office (applicant), contesting the Federal Emergency Management Agency's (FEMA's) decision to deny funds for the Hazard Mitigation Proposal to relocate the kitchen facility from the basement of the Community Correction Center building. FEMA denied funding on the basis that the applicant proceeded with the construction without providing FEMA the opportunity to complete an environmental review as required by the National Environmental Policy Act (NEPA).
FEMA recognizes and commends the applicant's initiative to mitigate future damages to the kitchen facility. However, as explained in the enclosed analysis, it is concluded that the construction of the new kitchen facility within the 100-year floodplain would have required a NEPA review. Because the applicant proceeded with the work prior to FEMA having the opportunity to complete this review, we cannot fund the requested work. Accordingly, the applicant's appeal is denied.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Raymond "Buddy" Young
Regional Director
FEMA Region VI
Appeal Analysis
BACKGROUNDAs a result of the early May 1995 severe storms, tornadoes and flooding (FEMA-1049), the Orleans Parish Criminal Sheriff's Office's (applicant) Community Correction Center facility sustained various damages to the building and its contents. Considerable flood damages occurred within the building's basement that mainly housed the kitchen area, food commissary rooms and the prison laundry. The applicant requested assistance from the Federal Emergency Management Agency (FEMA) for repair of disaster-related damages.
On May 19, 1995, a site inspection was made by representatives of FEMA, the State of Louisiana Office of Emergency Preparedness (State) and the applicant to observe the site conditions. Based on the site visit and subsequent reviews of eligible damages, FEMA prepared ten Damage Survey Reports (DSRs); one Category A ($19,406), one Category B ($307,314) and eight Category E ($7,181,696).
The existing Community Correction Center and its surrounding property are located in the 100-year floodplain. The structure, and in particular its basement level, had suffered similar damages in previous major flood events. Therefore, the applicant decided that it was not prudent to rebuild the kitchen facilities in the same flood prone area. With its own funds, the applicant designed and constructed a replacement kitchen facility in the adjacent existing paved parking lot area. The new kitchen facility was constructed above the 100-year flood elevation. Construction of the new facility began in early November 1996 and was completed in September 1997.
The applicant prepared a Hazard Mitigation Proposal (HMP) requesting FEMA fund the costs associated with moving the kitchen facility in the amount of $1,604,700. The request was made to FEMA in September 1995, but apparently was misplaced. FEMA's project closeout team visited the applicant's office in early November 1997 and discovered the additional work performed by the applicant to relocate the facilities. The FEMA inspector informed the applicant that the HMP could not be located at the Regional office and assisted the applicant in resubmitting the proposal. On December 8, 1997, FEMA denied the request for the Hazard Mitigation funding, in part on the basis that the applicant performed the work without providing FEMA the opportunity to complete an environmental review as required by the National Environmental Policy Act (NEPA).
First Appeal
The applicant submitted a first appeal of FEMA's denial of the HMP funding, transmitted by the State in a letter dated March 11, 1998. The applicant asserted that they had contacted the State on several occasions to determine the status of the HMP and had been advised by the State that FEMA was processing the proposal and to continue with the repair work. In response to the NEPA issue of the HMP denial, the applicant asserted that they were never told about a NEPA review requirement. It is the applicant's position that if FEMA waited 2-1/2 years to inform them of the NEPA requirements, they should not be penalized for the delay.
The Regional Director denied the appeal in a letter dated July 7, 1998. The basis for the denial again was that the work proceeded without fulfilling the specific documentation and procedural requirements of NEPA and, therefore, may not be considered for federal funding.
Second Appeal
The applicant submitted a second appeal of FEMA's determination, transmitted and supported by OES in a letter dated September 21, 1998. The applicant asserts that the work performed did not mandate an environmental assessment or an environmental impact statement. In an affidavit prepared by their project architect, the architect asserts that pertinent environmental laws and regulations were considered and adhered to when applicable.
The Regional Director forwarded the applicant's appeal to FEMA Headquarters in a letter dated December 8, 1998. However, since receipt of the appeal, the Office of the Inspector General (IG) has been reviewing the applicant's projects. Response to the appeal was, therefore, postponed until completion of the IG's review. The results of the IG's review, however, have no specific bearing on the issues of this appeal.
DISCUSSION
The primary issue of the appeal is associated with FEMA's determination that the completed work would have required a NEPA review prior to project approval, primarily due to the conduct of work within the 100-year floodplain.
NEPA requires every Federal agency to follow a specific planning process to ensure that agency decision-makers and local governments have considered, and the general public is fully informed about, the environmental consequences of a Federal action. This review and consultation process is used to evaluate the impact a project and its alternatives may have on the environment. The process must be completed prior to obligating funds and beginning work. FEMA's regulations regarding NEPA can be found in 44 CFR Part 10.
Under the NEPA review process, FEMA must consider the environmental effects of working in the 100-year floodplain as mandated by Executive Order 11988 and outlined in 44 CFR Part 9. This regulation requires that projects located within the 100-year floodplain follow a specific 8-step review process before approval of funding. This process includes initial public notification, identifying and evaluating alternatives, identifying and minimizing potential adverse impacts, reevaluation of the action, and a final public notification.
Certain projects are eligible for a statutory or categorical exclusion from the NEPA review process. FEMA is provided with statutory exclusions under Section 316 of the Stafford Act for specific emergency actions and for repair or restoration projects that do not affect the location, footprint, function and size of the original facility. Because the completed work involved new construction at a new location, it may not be statutorily excluded from the NEPA review process. Categorical exclusions, defined in 44 CFR 10.8(d), include actions that, through experience, FEMA has found typically will have little or no environmental impact. The FEMA Regional Environmental Officer concluded that, because the project involves new construction within the 100-year floodplain, it does not meet any of the conditions identified in these exclusions. On this basis, an environmental assessment would have been required for this project.
The applicant asserts that although a formal NEPA review was not performed, the new kitchen facility was designed and constructed to meet all applicable codes, including Life Safety and ADA compliance, as well as all environmental laws of the State, City of New Orleans and the New Orleans Sewerage and Water board. A public hearing was conducted before the City Planning Commission relative to zoning issues for the project and several adjacent property owners were present and spoke. However, in the applicant's list of environmental laws that were considered, there is no mention of Executive Order 11988 or compliance with the required 8-step review process. The referenced public hearing did not provide the public the opportunity to comment on floodplain issues. Therefore, there is no documentation to support that a proper evaluation was made for possible effects to the floodplain.
The applicant asserts that FEMA did not specifically notify them of the requirements to comply with the NEPA review process and, therefore, they should not be penalized for not complying. However, the applicant chose to proceed with the work prior to FEMA completing a review of the project for either funding eligibility or compliance with NEPA. This action by the applicant precluded FEMA from having the opportunity to perform the reth/U>Based on a review of the documentation provided by the applicant, it is concluded that the construction of the new kitchen facility within the 100-year floodplain would have required a NEPA review. Because the applicant proceeded with the work prior to FEMA having the opportunity to complete this review, we cannot fund the requested work. The applicant's appeal is denied.