Legal Responsibility – Other Federal Agency – Debris Removal – Waterways

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The Southport Channel is a 9 foot deep, 100 foot wide channel, authorized by Congress in the Rivers and Harbors Act of 1829 and is currently maintained by the U.S. Army Corps of Engineers (USACE).[1]  The Southport Channel primarily is used for recreational boating.  From October 27 to November 8, 2012, severe high winds, flooding and storm surges resulting from Hurricane Sandy deposited sand, cobble, shell cultch and vegetative debris into the Southport Channel.  President Barack Obama declared a major disaster for Connecticut on October 30, 2012.  FEMA prepared Project Worksheet (PW) 597 to document dredging activities related to Southport Channel, Pine Creek Channel and South Benson Channel. 

The Town of Fairfield (Applicant), through the State of Connecticut Department of Emergency Services and Public Protection (Grantee), requested an extension of the period of performance for PW 597 through December 31, 2014 on March 20, 2014.  FEMA responded by raising three issues with the project, including questions regarding whether the channels were improved and maintained natural features, whether the Applicant was legally responsible for the channels and whether the dredging work was permanent work, as opposed to emergency work.  While FEMA resolved initial concerns about the dredging project, it subsequently determined that dredging work in the Southport Channel was ineligible for reimbursement because it fell under the more specific authority of USACE,[2] resulting in a reduction of $220,850.00 in funding from PW 597.  FEMA also denied the time extension stating that because Southport Channel was under another federal agency’s authority and the work was not eligible under the Public Assistance (PA) Program, the requested time extension was not applicable.  FEMA Region I notified the Grantee of its determination through a January 15, 2015 letter and accompanying determination memorandum.

First Appeal

On March 13, 2015, the Applicant appealed FEMA’s determination that the USACE has specific authority to dredge Southport Channel.  The Applicant argued that the regulatory prohibition (44 C.F.R. § 206.226(a)(1)) that prevents FEMA from providing grant assistance when another federal agency has specific authority is not absolute because of the modifier “generally.”  The Applicant asserted that this modifier gives FEMA discretion to make exceptions, as it should in this instance because the debris caused by Hurricane Sandy caused unsafe conditions that required immediate resolution.  The Applicant also argued that, while Public Law 113-2, Disaster Relief Appropriations Act, 2013,[3] authorizes USACE to provide additional funding for dredging Southport Channel, there was no conflict between FEMA, as the more general funding authority, and USACE, the specific funding authority, because the USACE did not have funding available at the time of the Applicant’s request.  Finally, the Applicant asserted that, regardless of whether the USACE was responsible for dredging Southport Channel, other work, including conducting coastal engineering plans, removing sand from the sandbar adjoining the channel, overseeing the transportation of dredged sand and executing a mitigation plan, was eligible under the PA Program because it was performed by the Applicant and not under the authority of the USACE.  When forwarding the Applicant’s first appeal, the Grantee supported the appeal while also asserting that Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 705(c) prohibited FEMA from changing its original approval of PW 597 as it related to Southport Channel. 

During the disposition of the first appeal, FEMA Region I engaged in several communications with the Applicant and Grantee regarding the issues raised in FEMA’s eligibility determination.  In a letter dated July 17, 2015, FEMA Region I sent a request for additional information explaining that the USACE had primary legal authority and responsibility for the Southport Channel and receives appropriations each year to conduct maintenance on the Channel, and received supplemental appropriations to specifically address damage caused by Hurricane Sandy.  FEMA Region I further explained that the Agency may provide grant assistance for work falling outside the Southport Harbor Federal Navigation Project (Navigation Project) that created the Southport Channel.  As such, Region I requested: (1) information related to the Department of Works employees who excavated sand from the sandbar not located within the Navigation Project, (2) documentation showing the amount of sand excavated from the sandbar, the location where the sand was disposed, who supervised the disposition and approvals/permits for the excavation work, (3) documentation regarding the piping plover mitigation plan, and (4) a map or diagram that identified where the work was performed outside the Navigation Project.  The Grantee replied to FEMA Region I on August 31, 2015 with documentation to demonstrate the amount of sand excavated from the sandbar, locations along the shoreline where the sand was hauled and disposed, who provided oversight for the placement of dredged sand on local beaches, and the approvals/permits obtained to perform the work. 

On November 3, 2015, Region I held a meeting with the Grantee and Applicant to discuss outstanding issues related to PW 597.  The participants discussed the total amount of debris removed from the Southport Channel, the amount of debris that was caused by Hurricane Sandy, and the width of the portion of the Channel that was maintained by the USACE.  As a result, Region I requested that the Applicant and Grantee provide documentation that demonstrated that the USACE did not have authority over a certain portion of Southport Channel.  The Grantee provided the relevant documents on November 20, 2015.

FEMA Region I sent a Final Request for Information on February 14, 2016.  In the request, Region I noted that the Connecticut Department of Environmental Protection limitation of the USACE to dredge only 75 of the 100 feet of width of the Channel does not change the scope of the congressional authorization of 100 feet.  The Region also explained that it concluded that the Applicant dredged 1,736 cubic yards (CY) of debris outside the Navigation Project and costs associated with such eligible work totaled $59,177.09.  Based on these findings, Region I provided the Applicant a final opportunity to submit documentation that (1) supported the conclusion that the authorized width of the Channel was 75 and not 100 feet at the time of Hurricane Sandy and (2) the Applicant performed more than $59,177.09 of eligible dredging work in areas outside the Navigation Project.  The Grantee forwarded the Applicant’s response, along with its own analysis and recommendation, on March 21, 2016.  The Applicant provided documentation that it purported showed the USACE did not have authority over 25 feet of the width of the Southport Channel.  The Grantee asserted that FEMA, not the USACE, has the more specific authority to provide financial assistance for debris removal to address an immediate threat to public health, life and safety, and provided three FEMA second appeals as evidence of its claim. 

In a June 13, 2016 decision, the FEMA Region I Regional Administrator (RA) partially granted the appeal with respect to $59,163.46 associated with 1,736 CY of debris dredged outside the Navigation Project and under the authority of the Town of Fairfield.  Utilizing applicable provisions in the Disaster Relief Appropriations Act, the RA established that the USACE had a more specific authority to remove debris from the Southport Channel following Hurricane Sandy.  As such, the RA denied the remainder of the appeal determining that dredging occurring within the Navigation Project’s boundaries is not eligible for PA reimbursement based on RP9523.5, Debris Removal from Waterways.  The policy prohibits Stafford Act assistance for debris removal from federally maintained navigable channels and waterways or for which another federal agency has specific authority—both of which were true concerning the debris removal work performed in the Southport Channel.  The RA also determined that, while the regulatory prohibition to generally deny funding for projects for which another federal agency has specific authority only applies to permanent work, FEMA has made a policy decision to extend the prohibition to emergency work through RP9523.5, Debris Removal from Waterways.  Finally, the RA determined that Stafford Act § 705(c) did not apply to this project because (1) the Grantee had not drawn down funds for PW 597 at the time FEMA notified the Grantee of possible eligibility issues and (2) the Applicant failed to comply with the terms and conditions of the grant by not completing the approved scope of work by the end of the period of performance; thus, not all of the requirements of Section 705(c) had been met. 

Second Appeal

In an August 12, 2016 letter, submitted by the Grantee on behalf of the Applicant, the Grantee argues that FEMA has the more specific authority for dredging resulting from Hurricane Sandy because the debris presented an immediate threat to life, public health and safety and improved property and was necessary to ensure an economic recovery.  In addition, the Grantee asserts that FEMA Region I’s reliance on RP9523.5, Debris Removal from Waterways, was incorrect because the policy mandates a blanket prohibition on debris removal from federally maintained waterways, whereas the Stafford Act and implementing regulation are not as restrictive.  Specifically, the Grantee argues that the policy’s prohibition only applies to permanent work, and FEMA is acting contra to Stafford Act § 407 and Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.224 by extending the prohibition to emergency work.  The Applicant also argues that language found in 44 C.F.R. § 206.226 that generally makes Stafford Act funding unavailable for projects under which another federal agency has specific authority applies only to permanent work, not emergency.[4]  Therefore, the Grantee argues the policy is unreasonable and contrary to the plain meaning of the Stafford Act.  In addition, the Grantee asserts that the USACE’s more specific authority to conduct permanent dredging work does not prevent FEMA from funding the requested work which was emergency in nature.  To support this assertion, the Grantee argues that the USACE’s authority demonstrates that it is responsible for permanent work, but the Applicant is responsible for emergency work, and Congress did not transfer legal responsibility to the USACE for the protection of lives and property.  Finally, the Grantee contends that FEMA should use its discretionary authority to fund the Applicant’s project and provides three appeal decisions[5] to support its conclusion.

Discussion

Application of RP9523.5, Debris Removal from Waterways

When FEMA issues policy that implements the PA Program, Stafford Act § 325 requires the Agency to allow for public notice and the opportunity to comment before adopting a policy that results in a significant reduction of assistance under the program.[6]  At the time of the disaster, FEMA implemented and clarified provisions of the Stafford Act and federal regulations through its 9500 policy series.[7]  This ensured that PA actions are administered consistently, and that recipients of FEMA assistance are aware of and subject to the same programmatic requirements.  FEMA satisfied the Stafford Act § 325 requirement by publishing notice of RP9523.5, Debris Removal from Waterways, in the Federal Register and allowing public comment.[8] 

The Grantee argues that the Region I RA based the first appeal decision primarily on RP9523.5, Debris Removal from Waterways, which was inappropriate because the policy is more restrictive than the Stafford Act, as it includes a blanket prohibition not found in Sections 403 and 407.[9]  Citing Stafford Act § 101(b)(1),[10] the Grantee argues that FEMA’s prohibition on funding federally maintained channels and waterways is “unreasonable or contrary to the plain meaning” of the Stafford Act because the intent of Congress is for FEMA to provide as much assistance as allowable under the law.  While Section 101 may provide FEMA broad authority to grant assistance to communities following a declared event, it must be read in context with all sections of the Stafford Act, including Section 325, which allows FEMA to implement policies that may limit funding.[11]  As such, FEMA may exercise its discretion to limit funding or narrow the types of projects that may receive grant assistance, so long as the Agency’s decision is not “arbitrary, capricious, or manifestly contrary to the statute.”[12]  Here, FEMA followed the proper procedures for notice and comment as required by Stafford Act § 325 before issuing RP9523.5, Debris Removal from Waterways.[13]  Additionally, FEMA implemented the eligibility requirements prescribed in RP9523.5, Debris Removal from Waterways, uniformly after the policy’s publication.  Therefore, the RA properly relied on the policy when analyzing the facts of the first appeal to determine that the project was not eligible.

Debris Removal Eligibility

Stafford Act §§ 403 and 407, as implemented by 44 C.F.R. § 206.224, authorize FEMA to reimburse costs for debris removal when it is necessary to save lives, protect property, preserve public health and safety or in the public interest.[14]  Explaining these provisions of the Stafford Act and implementing regulation, RP9523.5, Debris Removal from Waterways, sets eligibility requirements for debris removal from various types of waterways.  It is also important to note that, pursuant to Stafford Act § 312, FEMA may not duplicate assistance from any other source, including other federal programs.[15]  In addition, as a discretionary program, FEMA may determine certain projects ineligible for PA funding. [16]  As such, while FEMA may fund debris removal from non-federally maintained navigable waterways, the coastal zone or inland zone, and wetlands on a case-by-case basis,[17] RP9523.5, Debris Removal from Waterways, explicitly excludes debris removal from federally maintained navigable channels and waterways under the PA Program.[18]  FEMA does so because the USACE has the primary federal authority for debris removal from federal navigable waterway projects.[19]  The policy defines “federally maintained navigable channels and waterways” as “those waters that are maintained under the authorities and responsibilities of the USACE,” including “USACE authorized projects (e.g., specified harbors, canals, turning basins, anchorage and mooring areas, and waterways) that are designed, constructed, and maintained by the USACE for use by commercial and/or recreational navigational traffic.”[20] 

The Southport Channel is a federally maintained navigable waterway.[21]  Through policy, FEMA has limited discretionary Stafford Act funding with regard to debris removal from federally maintained channels, regardless of whether funding is available through other grant assistance programs.  As such, dredging of the Southport Channel is ineligible for reimbursement under the PA Program.[22] 

Moreover, 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.”[23]  Specific to Federal appropriations, fiscal law principles prohibit FEMA from supplementing a more specific appropriation.[24]  Congress, through Public Law 113-2, Disaster Relief Appropriations Act, 2013, provided an additional $742,000,000.00 in appropriations to the USACE for necessary expenses related to dredging federal navigation channels and other repair work on USACE projects resulting from Hurricane Sandy and an additional $582,000,000.00 in appropriations “to support emergency operations, repairs, and other activities, as authorized by law.…”[25]  Because USACE’s appropriation is more specific than FEMA’s general Disaster Relief Fund, PA for the debris work described in PW 597 is not eligible. 

Various communications demonstrate that the project was eligible for funding under the USACE’s authorities, but the Applicant failed to apply for, or otherwise pursue these grant assistance options.  Specifically, in a September 26, 2014 email, the USACE informed FEMA Region I that it had funding to repair damages caused by Hurricane Sandy via Public Law 113-2, Disaster Relief Appropriations Act of 2013, and regulatory Operations and Maintenance authority to maintain authorized federal projects.[26]  However, related to work outlined in FEMA PW 597, the Applicant had not requested funding from the USACE.  Further, in a letter dated November 21, 2014, the USACE confirmed that the Southport Channel is a federal navigation project and that maintenance dredging would have been eligible for funding from the USACE pursuant to Public Law 113-2, assuming there was shoaling “in the Federal channel….”  The USACE stipulated that because the Applicant decided to pursue other avenues of funding and the amount of time elapsed since Hurricane Sandy, there was no guarantee that the necessary funding was still available.  Principles of fiscal law, however, make clear that it is immaterial whether the appropriation has been exhausted.[27]  Congress appropriated funding to USACE for dredging and repair projects resulting from Hurricane Sandy in federal navigation channels; this authority is more specific that FEMA’s general authority and therefore FEMA is precluded from reimbursing the debris work described in PW 597. 

Conclusion

Pursuant to RP9523.5, Debris Removal from Waterways, debris removal work performed on the Southport Channel following Hurricane Sandy is ineligible for PA reimbursement because the Southport Channel is a federally maintained navigable channel and the work falls under the specific authority of the USACE.