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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#000-UTFMG-00
PW ID#1564
Date Signed2017-10-23T00:00:00

Conclusion: Funding is precluded because another Federal program is specifically designated to address the maintenance and restoration of TE-44 and there is a duplication of benefits. 

Summary Paragraph

Severe storm surge from Hurricane Isaac during the incident period August 26 to September 10, 2012 damaged a sheet pile dike at TE-44.  FEMA prepared Project Worksheet 1564 to document the work, finding it ineligible due to a lack of a regular maintenance plan and the work being the responsibility of another federal agency.  FEMA wrote PW 1564 for zero dollars.  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) TE-44 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) TE-44 was federally funded by the U.S. Department of the Interior’s Fish and Wildlife Service (USFWS) under the CWPPRA and remains under USFWS authority for the 20 year life of the project and (2) the Operation, Maintenance and Rehabilitation Plan demonstrated that TE-44 was maintained.  The RA also clarified that Section 312(a) of the Stafford Act, rather than Section 312(b)(1), is the relevant authority applicable to duplication of benefits.  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. 

Authorities and Second Appeals

  • Stafford Act § 312(a).
  • 16 U.S.C. § 3951-3956.
  • 44 C.F.R. § 206.226(a).
  • PA Guide, at 41.
  • 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 and wetlands.
  • Stafford Act § 312 specifically prohibits applicants from receiving duplicate financial assistance.
    • The cost share agreement between the Applicant and USFWS creates a duplication of benefits.

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) 1564 – Legal Responsibility – Other Federal Agency – Duplication of Benefits

Dear Mr. Waskom:

This is in response to a letter from your office dated April 1, 2016, 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 costs to repair a sheet pile dike at the at the North Lake Mechant Land Bridge Restoration Project (TE-44) for $2,209,500.00.

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.  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 sheet pile dike at the North Lake Mechant Land Bridge Restoration Project (TE-44).  TE-44 was funded by the U.S. Department of the Interior’s Fish and Wildlife Service (USFWS) through a cost share agreement with the Louisiana Department of Natural Resources to conserve, restore, create, and enhance vegetated wetlands in coastal Louisiana.[1]  The agreements were entered into pursuant to the authority of the Coastal Wetlands Planning, Protection and Restoration Act of 1990 (CWPPRA).[2]  State responsibilities for TE-44 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.[3]

FEMA prepared Project Worksheet (PW) 1564 to document repair of the sheet pile dike for $2,209,500.00.  FEMA found the work to be ineligible because it was the responsibility of another federal agency[4] and TE-44 lacked regular maintenance plans.  FEMA wrote PW 1564 for zero dollars.[5] 

First Appeal

The Applicant appealed FEMA’s determination on February 6, 2014.  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) TE-44 has an established maintenance plan and budget providing for regular inspection and maintenance.[6] 

The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the first appeal on April 3, 2014.  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 USFWS funding for TE-44 does not prohibit FEMA from providing funding.[7]

On February 12, 2015, FEMA sent a Final Request for Information (RFI) to the Grantee.  The Agency requested an explanation as to why the Applicant sought funding from FEMA instead of USFWS.[8]  In its response to the Final RFI, the Applicant indicated it had submitted all required documentation.  The Applicant also reserved the right to provide written confirmation that no other federal agency has responsibility for the work, which it was in the process of obtaining.[9]

The FEMA Region VI Regional Administrator (RA) denied the first appeal on December 9, 2015.  The RA found that TE-44 was federally funded by the USFWS under the CWPPRA and remains under USFWS authority for the 20 year life of the project and that the Operation, Maintenance and Rehabilitation plans demonstrated that TE-44 was maintained.[10]  The RA also clarified that Section 312(a) of the Stafford Act, rather than Section 312(b)(1), is the relevant authority applicable to duplication of benefits.

Second Appeal

The Applicant submitted its second appeal by letter dated February 1, 2016.  The Applicant argues that FEMA’s denial is erroneous because there is no other federal agency responsible for funding these disaster-related repairs.[11] 

The Grantee transmitted the second appeal to FEMA Region VI on April 1, 2016 and supplemented the Applicant’s argument.  The Grantee asserts that CWPPRA does not establish responsibility in another federal agency to assist the Applicant; and even if another federal agency had legal responsibility to provide assistance, Stafford Act § 312(b) allows FEMA to provide funding if the Applicant has not yet received benefits or has only received partial benefits from the other agency.[12]

Discussion

Responsibility of Other Federal Agency

The Applicant claims that FEMA’s denial of eligibility of PW 1564 was erroneous as there is no other federal agency responsible for funding the subject disaster-related repairs.[13]  The Applicant argues that the cooperative agreement between the USFWS and the Applicant does not convey specific authority because the plain language of the CWPPRA does not include authority for funding disaster damages;[14] USFWS, 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.”[15]  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.”[16]  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.”[17]  Direction with regard to the distribution of appropriations for such projects is also contained within CWPPRA.[18] 

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.”[19]  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.

The Applicant also argues FEMA’s previous approval of work for sand fencing repair contradicts its assertion that the work is the responsibility of another federal agency.[20]  In a separate decision, FEMA determined that funding such repairs was in error.[21]

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,[22] including contracts.[23]  The cost share agreement that covers TE-44 requires the Applicant to assume maintenance responsibilities for the expected life of the project, which is 20 years from 2001.[24]  The USFWS is required to reimburse the Applicant for 95 percent of such costs for TE-44, subject to the availability of funding.[25]  The USFWS 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 USFWS to conduct joint inspections “after major storm events”[27] and the Applicant must submit a report to the USFWS detailing the condition of the project and recommendations, including the estimate costs, for any corrective actions.[28]  The cost sharing agreements and associated operation, maintenance, and rehabilitation plans between the Applicant and USFWS create an available source of duplicate funding to repair the damage at TE-44.[29]  The administrative record does not include any correspondence demonstrating the Applicant complied with its duty to inform USFWS of the adverse conditions caused by Hurricane Isaac and the corrective actions and estimate costs to repair the damage.  The Applicant should have pursued this available funding and without contrary documentation in the administrative record, FEMA finds that the benefit was available.  Moreover, FEMA is prohibited by the CWPPRA from funding the Applicant’s cost share, which must come from a non-federal source.[30] 

Conclusion

FEMA finds the requested funding ineligible because there is another Federal program specifically designed to address the maintenance and restoration of TE-44.  Further, FEMA finds that the cost share agreement duplicates benefits available from USFWS for the repairs.  Consequently, the Applicant’s second appeal is denied.

 

[1] Cost Share Agreement between U.S. Dep’t of the Interior – Fish and Wildlife Service, and the State of La. for Planning, Engineering and Design, Construction, Operation, Maintenance, Rehabilitation and Monitoring of the North Lake Mechant Landbridge Restoration Project (TE-44), DNR Agreement No. 2511-01-24, at 2 (May 16, 2001) [hereinafter Cost Share Agreement].

[2] 16 U.S.C. §§ 3951-3956 (2010).

[3] 2009 La. Acts 523, 67-68 (https://www.legis.la.gov/Legis/ViewDocument.aspx?d=668806).

[4] Specifically, U.S. Department of the Interior’s Fish and Wildlife Service (USFWS).

[5] Project Worksheet 1564, Office of Coastal Protection and Restoration, Version 0 (June 9, 2016).

[6] Letter from Counsel, Coastal Protection and Restoration Authority, to Deputy Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Feb. 6, 2014).

[7] Letter from State Coordinating Officer, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Reg’l Adm’r, FEMA Region VI (Apr. 3, 2014).

[8] Letter from Dir., Recovery Div., FEMA Region VI, to Dir., La. Governor’s Office of Homeland Security and Emergency Preparedness (Feb. 12, 2015).

[9] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (June 3, 2015).

[10] 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 (Dec. 9, 2015).

[11] Letter from Counsel, Coastal Protection and Restoration Authority, to Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness (Feb. 1, 2016) [hereinafter Applicant Second Appeal Letter].

[12] Letter from Assistant Deputy Dir., Public Assistance, La. Governor’s Office of Homeland Security and Emergency Preparedness, to Assistant Adm’r, Recovery Directorate, FEMA (Apr. 1, 2016) [hereinafter Grantee Second Appeal Letter].

[13] Applicant Second Appeal Letter, at 3.

[14] FEMA acknowledges that the cooperative agreements between USFWS and the Applicant are not authorizing statutes, implementing regulations, or appropriation laws and therefore not authorities of another federal agency.

[15] 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).

[16] 16 U.S.C. § 3956(a).

[17] Id. § 3951.

[18] Id. § 3955.

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

[20] Applicant Second Appeal Letter, at 8.

[21] FEMA Second Appeal Analysis, Office of Coastal Protection and Restoration, FEMA-4080-DR-LA, at 8-9 (Dec. 23, 2016).  In FEMA Second Appeal Analysis, Louisiana Department of Natural Resources, FEMA-1607-DR-LA, PW 4576, at 2 (Mar. 12, 2012), FEMA incorrectly limited its review of other federal agency authority to a memorandum of agreement and a cooperative agreement and did not consider the underlying legal authority, CWPPRA, when determining the eligibility of repairs to sand fencing.

[22] 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”).

[23] 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).

[24] Cost Share Agreement, at 6, 11.

[25] Id. at 6.

[26] La. Office of Coastal Protection and Restoration Operations Division, Operations, Maintenance, and Rehabilitation Plan North Lake Mechant Landbridge Restoration Project TE-44, at 7 (Apr. 5, 2011) [hereinafter OM&R Plan].

[27] OM&R Plan, at 6-7.

[28] Id. at 6.

[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] 16 U.S.C. § 3952(f)(3).