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Second Appeal Brief
PA ID# 045-UXAW0-00; Noyo Harbor District
PW ID# Project Worksheet 3239; Noyo Harbor Riverway Dredging
Citation: FEMA-1628-DR-CA, Noyo Harbor District, Noyo Harbor Riverway Dredging, Project Worksheet (PW) 3239
Cross-reference: Other Federal Agency
Summary: As a result of the January 2006 Winter Storms, the Noyo Harbor District (Applicant) requested Public Assistance funding to dredge silt and sediment. FEMA prepared PW 3239 as an emergency protective measure to dredge silt and sediment from the Noyo Harbor riverway, but determined the work to be ineligible because the conditions did not pose an immediate threat to public health and safety. In addition, FEMA determined the dredging was under the authority of the U.S. Army Corps of Engineers (USACE) even though its available funds had been diverted to the Hurricane Katrina recovery mission. As USACE could not fund this project, the Applicant submitted its first appeal to FEMA, requesting that FEMA provide funding on the basis of 44 CFR 206.5 and 206.8 which addresses direct Federal assistance. In addition, the Applicant argued that the conditions constituted an emergency and posed a threat to public health and safety because they prevented the U.S. Coast Guard (USCG) from performing search and rescue operations. The Applicant also argued that FEMA Publication 325, Debris Management Guide, provided for FEMA eligibility of the dredging regardless of which agency was responsible for the project. On January 29, 2008, the Deputy Regional Administrator denied the first appeal because dredging the harbor falls under the specific authority of the USACE. She also stated that the work could not be considered an emergency protective measure because the work was not specifically performed to eliminate or lessen an immediate threat. The Applicant submitted a second appeal on March 28, 2008, reiterating that the dredging was an eligible emergency protective measure because the USCG and USACE asserted that the silt and sediment created emergency conditions.
Issues: 1. Did dredging performed by the Applicant constitute an emergency protective measure?
2. Under FEMAs Public Assistance grant program, does FEMA fund the restoration of a facility that is under the authority of another Federal agency?
Findings: 1. No.
Rationale: Sections 403 and 406 of the Stafford Act; 44 CFR §206.225, 44 CFR §206.226(a)(1), and 44 CFR §206.221(c)