EHP and Other Compliance

Appeal Brief

Summary Paragraph

Hurricane Michael caused extensive damage throughout Florida, resulting in a major disaster declaration on October 11, 2018. The Applicant requested Public Assistance to address damages within the Park to its cabins and boardwalk. The Park is in a special flood hazard area and encompasses wetland areas. Because the Applicant did not provide a cost estimate or detailed scope of work, FEMA prepared an estimate for the project. FEMA issued requests for information seeking information to verify environmental and historic preservation (EHP) compliance. The Applicant responded that it did not have additional information due to the need for the Park to be redesigned. FEMA issued a Determination Memorandum denying funding for the project, finding the Applicant did not provide all requested information to verify its compliance with EHP requirements. The Applicant appealed, providing a contractor’s quote and executed contract. FEMA denied the appeal, concluding the Applicant did not provide documentation necessary to verify the work complied with applicable EHP requirements. The Applicant submits its second appeal, providing the elevation levels of the cabins and boardwalk and explains that it was unable to suggest mitigation measures due to the need for the Park to be redesigned and rebuilt. FEMA issued a second appeal RFI to request further information and received no response from the Applicant. 

Authorities and Second Appeals

• Stafford Act § 406.
• 44 C.F.R. §§ 206.226, 9.11(d).
• PAPPG, at 8, 86, 133.
• City of Sundance, FEMA-4007-DR-WY, at 5; Ardmore, FEMA-4222-DR-OK, at 3.

Headnotes

• FEMA must review each PA project to ensure that the work complies with applicable federal EHP laws, their implementing regulations, and applicable Executive Orders. It is the Applicant’s responsibility to provide FEMA with enough information to conduct this review.
  • The Applicant did not afford FEMA an opportunity to complete its EHP review or provide documentation demonstrating compliance with EHP requirements.

Conclusion

FEMA has determined the Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work and the Applicant has not provided documentation otherwise demonstrating compliance with EHP requirements to prevent adverse consequences for activities within a floodplain. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From October 7-19, 2018, Hurricane Michael caused extensive damage throughout Florida.[1] The Florida Department of Environmental Protection (Applicant) requested Public Assistance (PA) to repair damage to structures located within the T.H. Stone Memorial St. Joseph Peninsula State Park (Park), including eight cabins and a boardwalk. The Park is located within a special flood hazard area and encompasses wetland areas on a peninsula situated between St. Joseph Bay and the Gulf of Mexico.[2] FEMA created Grants Manager Project 133303 to document the claimed work.

FEMA issued a Request for Information (RFI) on February 16, 2021, requesting information to verify compliance with environmental and historic preservation (EHP) requirements. Specifically, FEMA noted that the project was partially located in a floodplain, which was governed by requirements in Title 44 of the Code of Federal Regulations (44 C.F.R.), Part 9, intended to minimize flood risks. Therefore, FEMA requested information about the elevation of each cabin and boardwalk, why the Applicant did not complete section 406 mitigation measures, and whether the Applicant would be utilizing other floodproofing considerations if the structures were not elevated above the base flood elevation (BFE) of 8 feet. The Applicant responded on March 3, 2021, stating the project was in the planning phase and the designs were still being finalized.

On July 28, 2021, FEMA issued a Determination Memorandum denying all $502,789.78 in estimated costs, finding the Applicant did not provide the requested documentation to confirm that the work to be completed complied with EHP requirements.

First Appeal 

The Applicant submitted its first appeal on September 26, 2021, reiterating that information remained unavailable in response to FEMA’s RFI due to the complete redevelopment of the Park. The Applicant provided a quote and contract from a construction management company for the redevelopment of the facilities within the Park. On November 19, 2021, the Florida Division of Emergency Management (Recipient) transmitted the first appeal with its support of the Applicant’s request.

On October 14, 2022, the FEMA Region 4 Regional Administrator denied the appeal. FEMA concluded that the Applicant did not provide documentation necessary to verify compliance with applicable EHP requirements. FEMA found that the Applicant did not provide the requested EHP documentation regarding actions to avoid potential adverse impacts within a floodplain; specifically, the elevation of each cabin and boardwalk or mitigation and floodproofing considerations. FEMA found that it was unable to determine if the scope of work (SOW) complied with all applicable EHP statues, executive orders (EO), and regulations.

Second Appeal

The Applicant submitted its second appeal in a letter dated December 13, 2022. The Applicant provides the elevation levels of the cabins and boardwalks, including one cabin that it claims is above the BFE of 8 feet. The Applicant explains that it was previously unable to suggest mitigation measures due to the need for the Park to be redesigned and rebuilt and the difficulty of agreeing to such measures while the redesign was taking place. The Applicant states that additional straps and ties have been added to the cabins and larger piles have been driven to support the boardwalk to help mitigate damage in future disasters. The Applicant also provides a SOW for the boardwalks. The Recipient forwarded the Applicant’s appeal on February 9, 2023, with its support. 

FEMA issued an RFI, received by the Applicant on May 26, 2023. In this RFI, FEMA requested, among other items, an update from the Applicant regarding the current state of work, certificates of elevation, details about floodproofing measures, and any additional information that would aid FEMA in conducting a review of the EHP concerns at issue in this appeal. The Applicant did not respond.

Discussion

FEMA may provide PA funding for costs to repair, restore, reconstruct, or replace a facility damaged or destroyed by a major disaster to its predisaster design, function, and capacity.[3] FEMA must review each PA project to ensure that the work complies with applicable federal EHP laws, their implementing regulations, and applicable EOs.[4]If an applicant begins construction work on a project before FEMA is able to conduct its EHP review, the applicant will jeopardize PA funding for the project because FEMA generally cannot conduct consultation with resource agencies after the applicant initiates work on a project as those agencies lose the ability to consider alternatives that would avoid, minimize, or mitigate adverse effects to the environment or historic properties.[5] It is the applicant’s responsibility to substantiate its claim as eligible.[6]

EO 11988 requires federal agencies to reduce the risk of flood loss, minimize the impact of floods on human safety, health, and welfare, and restore and preserve the natural and beneficial values served by floodplains.[7] FEMA implements and enforces EO 11988 through its regulations at 44 C.F.R. Part 9, which, among other requirements, only allow for new construction or substantial improvement of a structure within a floodplain under limited circumstances, including if the structure is above the BFE or if the design of a nonresidential structure incorporates specified floodproofing measures.[8] 

The Applicant’s second appeal states that the entire Park had to be redesigned and rebuilt, which indicates that the SOW at issue involves new construction or substantial improvements of structures within a floodplain. It also acknowledges that all but one structure on appeal are located below the BFE of 8 feet. Although the Applicant claims that one cabin is above 8 feet and that it incorporated mitigation measures for each cabin and boardwalk, it did not submit documentation substantiating or clarifying these claims on second appeal or in response to FEMA’s RFIs. Documentation should provide the “who, what, when, where, why, and how much” for each item claimed.[9] Without such documentation, FEMA cannot verify compliance with 44 C.F.R. Part 9 elevation or floodproofing requirement, along with all other EHP requirements. Therefore, the Applicant did not provide documentation demonstrating compliance with EHP requirements to prevent adverse consequences for activities within a floodplain. 

Additionally, the Applicant’s second appeal indicates that it has already initiated work on the project. The Applicant did not respond to FEMA’s second appeal RFI regarding the work completion status or EHP compliance for that work. Therefore, without information to the contrary, FEMA relies on the Applicant’s statements in its second appeal letter to find that the Applicant has initiated work without affording FEMA an opportunity to conduct its EHP review prior to conducting that work. Accordingly, FEMA is unable to determine whether any SOW complied with all applicable EHP statutes, regulations, and EOs.

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work and the Applicant has not provided documentation otherwise demonstrating compliance with EHP requirements to prevent adverse consequences for activities within a floodplain. Therefore, this appeal is denied.