o The Conservation Fund applied for HMGP funding for project FEMA-1791-DR-TX-221, to acquire approximately 400 unimproved acres in the Coastal Barrier Resources System (CBRS) and a small adjacent portion (i.e., approximately 40 acres) in Otherwise Protected Areas (OPA). The 1st appeal included a proposed change in the scope of work (SOW) of the project to include the acquisition of an adjacent parcel of land (partly outside of the CBRS), but that change was not considered by the Region. FEMA Region VI denied funding and denied a 1st level appeal.
• Reason for Denial
o The project did not result in a reduction in property damages consistent with Section 404 of the Stafford Act and 44 CFR §206.434. Additionally, it did not satisfy 44 CFR Part 80 requirements relevant to the acquisition of vacant land (no adjacency to eligible property with existing structures); it was not appropriate to include it under the HMGP Five Percent Initiative; it was located in a CBRS zone where HMGP funding is prohibited; and demonstration of cost effectiveness was inadequate.
o Stafford Act; 44 CFR 206.434 HMGP Eligibility; 44 CFR Part 80.11; 44 CFR 206.440 Appeals
o The 2nd appeal contended that the proposed acquisition project, submitted as a 5% Initiative project, does not have to meet FEMA Benefit-Cost Analysis (BCA) requirements, is consistent with a 44 CFR § 206.345(b)(5) exception that allows funding in a CBRS, and satisfies the application and SOW change requirements found in 44 CFR § 13.30(d) and § 206.436(d).
• FEMA Findings
o The 2nd appeal decision upheld the 1st appeal denial, with the determination that the Region's decision on the 1st appeal was consistent with the program regulations and policy.
o Rationale: The project did not satisfy 44 CFR Part 80 requirements relevant to the acquisition of vacant land, and in addition was predominantly within a CBRS zone (small portion in Otherwise Protected Areas (OPAs)), where HMGP funds are prohibited from being used for open space acquisitions; Discretion regarding cost effectiveness may be allowable on a 5% Initiative project when a subapplication has been denied due to difficulty in measuring its cost-effectiveness against traditional program cost-effectiveness criteria, but the project did not incorporate into the total project cost those costs associated with the adjacent vacant land purchase; and grantees or subgrantees must obtain approval, as per 44 CFR § 13.30(d), when requesting SOW changes, but the SOW had not been considered by Region VI.
o Reference(s): 44 CFR 206.434 HMGP Eligibility; 44 CFR Part 80.11; 44 CFR 13.30 HMGP application procedures; 44 CFR 206.440 Appeals; PI-A5 Eligibility of the Purchase of Vacant Land