EHP and Other Compliance

Appeal Brief

Summary Paragraph

From September 4–October 18, 2017, Hurricane Irma caused damage to the state of Florida. The Marshall Creek Community Development District (Applicant) requested Public Assistance funding to repair damages to its Tolomato River boardwalk, located in a designated wetland. FEMA prepared Grants Manager Project 169091/Project Worksheet 285 to document the repair work and mitigation measures. Based on FEMA Environmental and Historic Preservation (EHP) reviews conducted before FEMA’s obligation, FEMA noted in the project that the Applicant must comply with certain special conditions, including compliance with the Clean Water Act (CWA); Coastal Zone Management Act (CZMA); and Executive Order (EO) 11990. The Applicant completed the repair work and requested $313,912.53. FEMA sought documentation demonstrating compliance with applicable EHP requirements. The Applicant responded, describing its EO 11990 measures. FEMA issued a Determination Memorandum denying $313,912.53, finding that the Applicant did not comply with CWA, CZMA, and EO 11990 conditions. The Applicant appealed, stating there was no permit required for CWA and CZMA compliance and that it implemented measures to comply with EO 11990. On April 14, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not comply with CWA or CZMA conditions. On June 12, 2023, the Applicant submitted a second appeal, reasserting its claim that no permits were required and that it provided documentation of compliance with EO 11990.

Authorities

• 2 C.F.R. §§ 200.300(a)-(b), 200.338(b)-(c), (f).
• FEMA Instruction 108-1-1, at 14, 20, FEMA Policy 108.024.4, at 2.
• PAPPG, at 8, 133.

Headnotes

• If an applicant initiates and/or completes work before fulfilling specific EHP documentation and procedural requirements, FEMA may withhold all or partial funding.
  • The Applicant did not provide documentation demonstrating that it complied with all requirements of the Federal award, including applicable Federal EHP laws, and therefore the work is ineligible for PA funding. 

Conclusion

The Applicant did not provide documentation verifying that it complied with all requirements of FEMA’s PA award, including applicable Federal EHP laws. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 4 - October 18, 2017, Hurricane Irma caused damage to the state of Florida.[1] The Marshall Creek Community Development District (Applicant) requested Public Assistance (PA) funding to repair damages to the structural components of its Tolomato River boardwalk (Facility), located in a designated wetland.[2] On October 26, 2018, FEMA approved $301,638.71 in Grants Manager Project 16909/Project Worksheet 285 for repair work and mitigation measures to the Facility. Based on FEMA Environmental and Historic Preservation (EHP) reviews conducted before FEMA’s obligation, FEMA noted in the project that the Applicant must comply with certain special conditions, including compliance with the Clean Water Act (CWA); Coastal Zone Management Act (CZMA); and Executive Order (EO) 11990.[3] Thereafter, the Applicant notified FEMA it had completed the repair and mitigation work and requested an additional $12,273.82 in PA funding (for a total project cost of $313,912.53). FEMA sent two requests seeking documentation demonstrating compliance with applicable EHP requirements. The Applicant provided a response describing its EO 11990 measures.[4] FEMA issued a Determination Memorandum, finding all the requested funding was ineligible for PA because the Applicant did not comply with CWA, CZMA, and EO 11990 conditions.[5]

First Appeal 

On April 22, 2022, the Applicant submitted a first appeal to the Florida Division of Emergency Management (Recipient), seeking $313,912.53. The Applicant stated that, in 2002-2003, prior to constructing the Facility, it corresponded with the St. Johns River Water Management District (SJRWMD), the U.S. Army Corps of Engineers (USACE), and the U.S. Coast Guard regarding initial permits. The Applicant asserted that it complied with FEMA’s EHP conditions because USACE issued a “No Permit Required” determination related to the Facility’s construction. The Applicant further stated that, after the disaster, USACE communicated that there was no permit required for the repairs. Finally, the Applicant stated that during disaster repairs, it used floating turbidity barriers and a silt fence, as needed, to comply with EO 11990. On June 15, 2022, the Florida Division of Emergency Management (Recipient) transmitted the first appeal with a letter recommending approval. On April 14, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not provide sufficient documentation to verify EHP coordination with USACE or the Florida Department of Environmental Protection/SJRWMD or the Applicant’s compliance with the CWA or CZMA conditions.

Second Appeal

The Applicant submits a second appeal letter dated June 12, 2023, requesting $313,912.53 and reiterating its claim that it met CWA and CZMA conditions because no federal permit was required and that it provided documentation of compliance with EO 11990. The Applicant submits new documentation, including: a 2003 SJRWMD construction permit;[6] a 2016 email referencing a telephone call with USACE regarding a permit;[7] an email referencing a phone call with SJRWMD;^[8] and Facility repair plans for turbidity barriers and silt fences. The Applicant also expands its first appeal argument regarding CWA compliance. It states that although records regarding Facility construction permit communications with the USACE are unavailable, a 2003 construction permit and 2016 email verify that USACE did not require a permit for the disaster work under appeal. The Recipient transmitted the second appeal with its August 1, 2023 letter, recommending approval. 

Discussion

Applicants are responsible for complying with all requirements of the Federal award, including applicable Federal, State, Territorial, or Tribal EHP laws.^[9] FEMA must review each PA project to ensure the work complies with applicable Federal EHP laws and their implementing regulations, and applicable EOs.[10] If an applicant initiates and/or completes work before fulfilling specific EHP documentation and procedural requirements, FEMA may withhold all or partial funding.[11] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible.[12]

Here, although the Applicant asserts that USACE issued a permitting decision related to the Facility’s construction that also applies to its disaster-related repair work, it did not provide documentation from USACE to support this assertion. Instead, the Applicant provided a 2016 email which references a telephone call, to support its claim that USACE determined that certain repair work did not require a permit. However, the referenced communication with USACE was unrelated to the EHP condition attached to this project because the telephone call occurred one year prior to this disaster, and two years before the Applicant completed the work at issue. The Applicant also provided a June 10, 2003 SJRWMD Construction Permit that expired on June 10, 2008, approximately 10 years before the Applicant repaired the Facility.[13] Finally, in a June 5, 2023 email, the Applicant noted the month and day of a telephone call with a SJRWMD engineer, but this information similarly does not verify the Applicant’s claim that SJRWMD did not require a permit to conduct the repair work. Because the Applicant did not provide documentation demonstrating that it complied with all requirements of the Federal award, including applicable Federal EHP laws, the work is ineligible for PA funding.  

Conclusion

The Applicant did not provide documentation verifying that it complied with all requirements of FEMA’s PA award, including applicable Federal EHP laws. Therefore, the appeal is denied.