Beaches

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From August 26 to September 5, 2011, flooding and high winds from Hurricane Irene (Irene) caused damage to New York’s Robert Moses State Park, operated by the New York State Office of Parks, Recreation and Historic Preservation (Applicant).  Irene’s high winds, high tides and storm surge caused sand erosion along the shoreline and berm along the beach, including an area identified as Field 5.  On March 28, 2011, during the kickoff meeting with the Applicant, FEMA referred the Applicant to Disaster Assistance Policy DAP9580.8 (DAP9580.8) – Eligible Sand Replacement on Public Beaches, and requested that Applicant provide documentation listed in the policy as needed in order to show eligibility for berm repairs.  On July 11, 2012, FEMA prepared Project Worksheet (PW) 8999 to document the damage and scope of work (SOW) necessary to restore Field 5’s beach to predisaster condition.  The Applicant proposed using contract labor to replace 34,123 cubic yards of sand at the site to repair the berms, this amount having been estimated based on a post-storm profile of Field 5.  However, FEMA found that the amount of sand loss could not be estimated because the Applicant had not provided both pre- and post-storm profiles of the entire beach.  Therefore, FEMA determined the project was ineligible.  On April 23, 2018, the Applicant submitted a SOW change request to recategorize PW 8999 as an emergency work project, claiming it was necessary to construct an emergency berm.  On January 7, 2019, FEMA denied the request because the Applicant had not provided supporting documentation that the requested work was an eligible emergency protective measure.

First Appeal

On March 8, 2019, the Applicant appealed, and stated that the berm was an eligible emergency protective measure, requesting $510,000.00 (representing its estimated costs for 30,000 cubic yards of sand and force account labor to construct the berm).[1]  The Applicant requested per Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a)(3)(ii), FEMA amend the PW as a Category B emergency protective measure to protect improved property.  The Applicant maintained that the berm was designed to protect a parking area, contact station, playground, comfort station, first aid/lifeguard station and concession stand.[2]  On April 16, 2019, the Grantee forwarded the Applicant’s appeal to FEMA with its concurrence.  The Grantee stated that the Applicant repaired four existing berms (constructed in 1994 and 2006).[3]  The Grantee noted that these berms were restored in May 2011 as a result of damage from a previous disaster, noting this was eligible emergency work under FEMA policy.  Additionally, the Grantee distinguished the work performed here from permanent work to replace sand on a public beach; explaining that Field 5 is more accurately characterized as sand berms or dunes.

The Regional Administrator (RA) denied the appeal on July 12, 2019, finding that an applicant must provide documented justification supporting its position.[4]  FEMA determined the record lacked documented justification describing the work performed, the source of the material (sand) used to complete the berm work, or any of the claimed costs.  Additionally, FEMA determined that the Applicant did not provide beach profiles or engineering reports documenting the loss.  Therefore, FEMA concluded that the Applicant had not demonstrated that the work performed was eligible emergency work.

Second Appeal

On September 13, 2019, the Applicant submitted its second appeal, requesting that the first appeal denial be overturned on procedural grounds.[5]  The Applicant states that the RA did not directly respond to its SOW change request nor did FEMA coordinate with it to gather the scope and environmental information needed to develop the PW, as it requested.  Additionally, the Applicant listed additional procedural errors: (1) FEMA failed to follow its request for information process; (2) FEMA failed to follow its environmental and historic preservation process; and (3) FEMA incorrectly applied criteria for improved beaches that apply to permanent work projects.  On November 5, 2019, the Grantee forwarded the appeal to FEMA, expressing its support.

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA’s Public Assistance (PA) Program to fund replacement of sand on damaged public beaches under certain conditions.[6] Under 44 C.F.R. § 206.225(a), emergency work is eligible for PA funding when it is necessary to: (1) eliminate or lessen immediate threats to life, public health or safety or (2) eliminate or lessen immediate threats of significant additional damage to improved property.[7]  FEMA’s Public Assistance Guide states that emergency placement of sand on a natural or engineered beach may be eligible when necessary to protect improved property from an immediate threat.[8]  Immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.[9]  If a beach has eroded to a point where a five-year storm or flood event will damage improved property, cost-effective emergency work on the beach may be eligible.[10]  Protection through emergency placement of sand on a beach may be to a 5-year storm profile or to its pre-storm profile, whichever is less costly.[11]  DAP 9580.8 states emergency work on beaches typically includes the construction of a temporary sand berm to protect against additional damage from a five-year storm event.

The Applicant initially requested PA funding to complete permanent repairs to its beach berms, but then submitted a SOW change stating that it performed emergency repairs to protective sand berms and should be classified as an emergency protective measure.  The Applicant claims that the previously built berms had been worn away by Irene.  However, the Applicant has not provided beach profiles or engineering reports documenting the erosion along the shoreline and berm.  Furthermore, the Applicant has not provided documentation that precisely describes the work performed nor has it identified the location of the single new berm in relation to the existing berms.  As such, the Applicant’s documentation has not established that Irene eroded the beach to such an extent that a five-year storm or flood event will cause damage to improved property.[12]  Accordingly, the Applicant has not provided documentation demonstrating that the work performed constitutes eligible emergency work.  Therefore, the work is ineligible.

Conclusion

The Applicant has not provided documentation demonstrating that the work performed to construct a new berm or repair the existing berms was eligible emergency work.  Therefore, the appeal is denied.