EHP and Other Compliance

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From October 7 through 19, 2018, Hurricane Michael impacted the state of Florida.[1] The disaster resulted in damage to multiple buildings in the T.H. Stone Memorial St. Joseph Peninsula State Park (Park), operated by the Florida Department of Environmental Protection (Applicant). FEMA created Grants Manager Project 133304 to document the Applicant’s request for $1,061,712.46 to address damage to six buildings in the Park, including the Park Manager Residence, Park Manager Storage, Assistant Park Manager Residence, and Assistant Park Manager Residence Storage buildings. Between June and July 2019, FEMA conducted Site Inspections (SIs) of the six buildings, noting serious damages and replacement needs.[2] Additionally, FEMA’s Environmental and Historic Preservation (EHP) personnel attended the SIs and noted that the Park is in a Special Flood Hazard Area. 

Throughout 2021, FEMA issued Requests for Information (RFIs) to the Applicant to clarify the work completion status, identify specific locations of the work, and support compliance with floodplain management requirements at Title 44 of the Code of Federal Regulations (C.F.R.) Part 9 and Executive Order (EO) 11988, including coordination and approval from the local floodplain administrator. The Applicant responded stating that the Park Manager and Assistant Park Manager Residences have been relocated, and the work already initiated. The Applicant identified the percentage of work completed and the specific locations. The Applicant stated that it consulted with the floodplain administrator but did not provide documentation supporting the consultation. 

On March 29, 2022, FEMA’s EHP personnel completed the Record of Environmental Consideration (REC). The REC asserted that the relocations of the Park Manager and Assistant Park Manager Residences and Storage buildings from Zone AE to Zone VE constitute new constructions in a coastal high hazard area, and do not fall under any exception to the prohibition on new construction because they do not facilitate open space use and are not functionally dependent upon their location in the floodplain. Consequently, the REC found that the repairs for those buildings were non-compliant with EO 11988.[3] 

On May 24, 2022, FEMA issued a Determination Memorandum denying $882,335.88 in funding for the Park Manager and Assistant Park Manager Residences and Storage buildings.[4] FEMA found that the Applicant conducted work prior to FEMA’s required federal EHP review. Additionally, FEMA found that the Park Manager Residence, Park Manager Storage, Assistant Park Manager Residence, and Assistant Park Manager Residence Storage buildings were relocated from Zone AE (high risk) to new locations in Zone VE (coastal high risk) and, accordingly, these projects were not compatible with EO 11988. 

First Appeal

In a letter dated July 22, 2022, the Applicant submitted a first appeal citing to FEMA’s SI findings on where the damaged structures were located (zones AE and VE) and stating that repairs were completed in the same flood zones. Additionally, the Applicant stated that it provided the locations where its buildings would be constructed in its July 21, 2021, RFI response, before construction began, and that it did not receive any additional information from FEMA at that time. The Florida Division of Emergency Management (Recipient) supported the appeal in a September 20, 2022 letter.

The FEMA Region 4 Regional Administrator denied the appeal on January 31, 2024.[5] FEMA found that the Applicant did not provide sufficient documentation to verify EHP compliance regarding the avoidance of potential adverse impacts for actions within a floodplain or coastal high-hazard area. Additionally, FEMA found the Applicant did not provide the local floodplain administrator coordination documentation or justification for relocating the buildings, and thus FEMA was unable to determine if the scope of work complied with all applicable EHP statutes, EOs, and regulations.

Second Appeal

The Applicant submitted a second appeal in a letter dated April 1, 2024, stating that, in its answers to the RFIs, it explained that the reconstruction of the buildings was coordinated with the floodplain administrator, and that it selected where to rebuild based on areas within the Park that had already been impacted. Additionally, the Applicant provided documentation, including documents from the Coastal Construction Control Line Program, which include potential sites and design plans for the buildings. In a letter dated May 31, 2024, the Recipient transmitted the appeal with its support. 

Discussion

FEMA may provide Public Assistance (PA) funding for costs to repair, restore, reconstruct, or replace a facility damaged or destroyed by a major disaster.[6] FEMA must review each PA project to ensure that the work complies with applicable federal EHP laws, their implementing regulations, and applicable EOs.[7]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.[8] It is the applicant’s responsibility to substantiate its claim as eligible.[9]

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 functions of floodplains.[10] FEMA implements and enforces EO 11988 through its regulations at 44 C.F.R. Part 9.[11] These regulations set forth the policy, procedures, and responsibilities to implement and enforce the EO, including the decision-making process, which is referred to as the 8-step process.[12] As part of this process, FEMA must work with the applicant to determine if there are any practicable alternative locations that are outside of the floodplain or in an area of lower risk, if there are alternative actions which serve the same purpose in a different manner, or if no action is the only acceptable alternative.[13] In addition, FEMA’s implementing regulations only allow for new construction or substantial improvement of a structure within a floodplain under limited circumstances.[14] Pursuant to the minimization standards in 44 C.F.R. § 9.11(d), new construction in a floodway or coastal high hazard area is prohibited unless the structure is for a functionally dependent use, or the structure facilitates an open space use.[15] Furthermore, no action may be taken if it is inconsistent with the criteria of the National Flood Insurance Program (NFIP) or any more restrictive Federal, State, or local floodplain management standards.[16] 

Here, the Applicant requested PA funding for the reconstruction of the Park Manager Residence, Park Manager Storage, Assistant Park Manager Residence and Assistant Park Manager Storage buildings in new locations. In its RFI responses, the Applicant provided the locations for the buildings and stated that it already initiated work for the buildings on appeal. FEMA did not have the opportunity to conduct its EHP review prior to the Applicant conducting that work. Therefore, the Applicant prevented FEMA from determining what impact the relocation may have with respect to EHP requirements. Specifically, the Applicant’s initiation of the construction prevented FEMA from considering practicable alternatives that were outside of the floodplain or in an area of lower risk, or alternative actions that could have served the same purpose while avoiding or reducing adverse effects.[17] 

The Applicant also did not demonstrate its relocations complied with FEMA’s minimization standards. In the REC, FEMA documented that the buildings at issue were relocated to a Zone VE floodplain (i.e., a coastal high hazard area) and constituted new constructions that do not facilitate open space use and are not functionally dependent upon their location in the floodplain.[18] On appeal, the Applicant did not dispute these findings or demonstrate that the reconstruction of the buildings for which the Applicant requests funding complies with any of the allowable circumstances for new construction in a floodplain zone. Specifically, the Applicant did not demonstrate that the buildings are functionally dependent or facilitate an open space use. Therefore, the constructions are prohibited under 44 C.F.R. § 9(d)(1).

In addition, 44 C.F.R. Part 9 requires consistency with the NFIP or any more restrictive floodplain management standard. To ensure consistency, FEMA asked the Applicant to demonstrate coordination with and approval from its local floodplain administrator. In its second appeal, the Applicant claims the reconstruction of the new buildings in the new locations was decided in coordination with the floodplain administrator. The Applicant submitted an email it sent to the U.S. Fish and Wildlife Service seeking consultation of the project as well as a letter from the U.S. Army Corps of Engineers authorizing amendments to the plan for the reconstruction of the buildings. However, neither the aforementioned documentation nor any other documentation submitted demonstrates the floodplain administrator’s consultation, approval, or recommendation for the relocation of the buildings on appeal. Therefore, the Applicant has not demonstrated consistency with floodplain management standards.

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work and did not provide documentation otherwise demonstrating compliance with EHP requirements and related Executive Orders. Therefore, this appeal is denied.