Other Federal Agency

Appeal Brief

Summary Paragraph

From January 31 to February 2, 2021, the winter storm Orlena impacted the State of New Jersey. The Township of Toms River (Applicant) requested $506,571.58 in Public Assistance (PA) funding to repair beach pedestrian walkovers, fences, planting, and sand erosion of the dunes on the Ortley Beach and North Beach Toms River (Facilities), which were constructed by the United States Army Corps of Engineers (USACE). In a Determination Memorandum, FEMA denied $446,013.01 in PA funding for sand replacement on the Facilities. FEMA stated that PA is generally unavailable if another federal agency has the authority to conduct the work at issue. The Applicant appealed, emphasizing that it contacted USACE, which stated that it was not responsible for repairing the Facilities. The New Jersey Division of State Police, Recovery Bureau (Recipient) transmitted the appeal, stating that the Applicant is the responsible party for maintaining the Facilities. The Region 2 Regional Administrator denied the appeal, stating that the Applicant’s Facilities are part of an ongoing federal project under the specific authority of USACE. On second appeal, the Applicant argues that USACE is only involved every five years for periodic beach renourishment and is not involved in the interim. 

Authorities and Second Appeals

• Stafford Act § 406(a)(l)(A).
• 44 C.F.R. § 206.226(a).
• PAPPG, at 54.

Headnotes

• FEMA PA funding is generally not available when another federal agency has specific authority to conduct the work at issue. If the facility or work is under the specific authority of another agency, FEMA does not provide assistance to restore the facility even if that federal agency does not provide funding.
  • USACE constructed the Facilities and USACE is responsible for periodically renourishing them, including bringing in additional sand for the dunes. Although an agreement between the parties states that the Applicant would remain responsible for maintenance, FEMA does not provide assistance for a facility or work under the specific authority of another agency, even if that federal agency does not provide funding to restore the facility.

Conclusion

FEMA finds that the costs incurred by the Applicant are not eligible for PA funding because another federal agency has specific authority to conduct the work at issue. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

Between January 31 and February 2, 2021, winter storm Orlena impacted the state of New Jersey. The Township of Toms River (Applicant) requested $506,571.58 in Public Assistance (PA) funding to repair beach pedestrian walkovers, fences, planting, and sand erosion of the dunes at Ortley Beach and North Beach Toms River (Facilities). FEMA created Grants Manager Project 188801 to document the damages.

The dunes at the Facilities were built under the authority of the United States Army Corps of Engineers (USACE) as part of the New Jersey Hurricane and Storm Damage Reduction Project (Project).[1] The Project was authorized by the Water Resources Development Act of 2007 (Development Act) and included provisions for beach restoration and periodic beach renourishment.[2] The Development Act, section 2018, Shore Protection Projects, states that the United States has a policy to reduce flood, hurricane, and storm damage and required the Secretary of the Army to enforce this policy with respect to shore protection and beach nourishment projects.[3]

In compliance with the Development Act, USACE, and the New Jersey Department of Environmental Protection (NJDEP) entered into a Project Partnership Agreement (PPA) signed on July 18, 2014, which described the parties’ responsibilities before, during, and after the Project’s construction.[4] The PPA states that the NJDEP would be responsible for operating, maintaining, repairing, rehabilitating, and replacing the Project after its conclusion.[5] The PPA also states that, following a storm, the NJDEP will evaluate the Project to determine material losses and share the results with USACE.[6] The PPA further states that USACE will perform periodic renourishment at appropriate intervals for 50 years.[7] On April 4, 2017, the Applicant and the NJDEP signed a State Aid Agreement.[8] The State Aid Agreement states that the Applicant must provide a perpetual easement to USACE for construction, renourishment activities and maintenance of the Facilities.[9] Additionally, the State Aid Agreement states that the Applicant will be responsible for routine operations, maintenance, repairs and associated costs of the Project between periodic renourishment of the Facility.[10]

On September 22, 2021, FEMA, the New Jersey Office of Emergency Management (Recipient), and the Applicant met to discuss the FEMA’s eligibility concerns. In a follow-up letter dated September 23, 2021, the Applicant stated that FEMA had agreed to reimburse the walkways, fencing, and planting repair costs, but not the dunes’ repair. The Applicant stated that FEMA’s position was contradictory because the walkways, fencing, and plantings were on top of the dunes. 

In addition to the September 22, 2021 meeting, multiple other communications occurred regarding the responsibilities of the parties with respect to the Facilities. The Applicant explained that it contacted the Recipient and USACE and confirmed that neither of them would provide assistance to repair the damages the declared incident caused to the Facilities. Nevertheless, on March 9, 2022, USACE replied to an email from FEMA and confirmed it had specific authority for repairs and periodic nourishment of the Facilities.[11] Likewise, on April 4, 2022, the Recipient transmitted to FEMA an email from USACE regarding ownership and maintenance of the dunes in the Facilities.[12] In this email, USACE explained that the maintenance of the Facilities, including repairing unsafe conditions such as large cliffs that develop after a hurricane, is the responsibility of the NJDEP. However, USACE further explained the maintenance responsibility does not include bringing in additional sand to rebuild the dunes.[13] 

On July 25, 2022, FEMA issued a Determination Memorandum denying $446,013.01 of PA funding for costs related to sand replacement for the Facilities. FEMA stated that PA funding is generally unavailable if another agency has the authority to reimburse the Applicant for work to repair a facility. 

First Appeal 

The Applicant submitted its first appeal in a letter dated August 9, 2022, reiterating previously raised arguments. The Recipient transmitted the appeal, supporting the Applicant’s position. The Recipient argued that the March 9, 2022 email from USACE to FEMA confirmed scheduled periodic renourishment cycles, but it did not state that USACE is responsible for maintenance between renourishment cycles, such as when required as a result of hurricane or storm damages.

On February 28, 2023, the Region 2 Regional Administrator denied the appeal, stating that the Applicant’s Facilities are part of an ongoing federal project under the specific authority of USACE. FEMA explained that the Agency does not provide funding even in instances where another federal agency has authority but does not provide funding. Therefore, FEMA found sand replacement and associated costs to be ineligible for PA funding.[14]

Second Appeal

In its second appeal, dated April 5, 2023, the Applicant disputes FEMA’s finding that USACE has ongoing authority for the Facilities. The Applicant states that USACE is only involved approximately every five years and is otherwise not involved. Additionally, the Applicant disagrees with FEMA’s analysis that reimbursement for sand replacement is prohibited because the Facilities are part of a federally constructed shoreline. On May 26, 2023, the Recipient transmitted the Applicant’s appeal with its support.

Discussion

Other Federal Agency

FEMA may provide funding for the repair of public facilities damaged or destroyed as a result of a major disaster.[15] FEMA PA funding is generally not available when another federal agency has the specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.[16] Other federal agencies have authority to conduct work that may overlap with FEMA’s authority.[17] FEMA evaluates several factors to determine whether another federal agency has more specific authority, including if the other federal agency authority is specifically and exclusively available for a particular type of facility, work, or activity.[18] Where the other federal agency has more specific authority than FEMA, FEMA does not provide assistance for the facilities or work even if that other federal agency does not provide funding for the facility or work.[19]

Here, the Applicant is requesting PA reimbursement to repair sand erosion, including sand replacement and associated costs, at the Facilities, which are USACE federally constructed dunes under the Development Act. The PPA and State Aid Agreement state that the Applicant is responsible for repairing and maintaining the Project, and furthermore, USACE stated that the Applicant is responsible for implementing preventative safety measures for the Facilities, including smoothing out the sand cliffs that resulted from the storm. However, USACE acknowledged that the Applicant’s responsibility does not include bringing in additional sand to rebuild the dunes. As such, the documentation demonstrates that USACE has the specific authority to restore the federally constructed dunes and, therefore, the specific authority to perform the work for which the Applicant is requesting reimbursement. Even though USACE did not provide funds to repair the Facilities, the work is not eligible for PA as FEMA does not provide assistance for repair work that is under the specific authority of another agency.

Conclusion

FEMA finds that the costs incurred by the Applicant are not eligible for PA because another federal agency has specific authority conduct the work at issue. Therefore, this appeal is denied.