Private Nonprofit, Private Property Debris Removal

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	The Ethician Foundation
Appeal Type	Second
PA ID#	471-U7A0C-00
PW ID#	GMP 41861
Date Signed	2020-11-02T17:00:00

Summary Paragraph

From August 23 through September 15, 2017, high winds, heavy rains, and storm surge from Hurricane Harvey caused damage throughout Texas.  The Ethician Foundation (Applicant), a Private Nonprofit (PNP), requested FEMA assistance, specifically identifying debris deposited on its Institute of Biospheric Studies Wildlife Preserve shoreline (shoreline).  FEMA denied funding, stating that the shoreline was in an ineligible nature reserve area and that the debris did not pose an immediate threat to public health or safety.  The Applicant appealed and asserted that the debris removal would benefit the local community because the shoreline is on a lake enjoyed by recreational boaters, and that the shoreline is used by local biological researchers.  The FEMA Region VI Regional Administrator denied the appeal, finding that the shoreline did not provide an eligible PNP service, and located in an ineligible nature preserve, and thus, the debris removal was ineligible.  On second appeal, the Applicant reiterates that the shoreline is used for both recreation and research and asserts that the shoreline functions as a house of worship

  

Authorities and Second Appeals

• Stafford Act §§ 403, 407.
• 44 C.F.R. §§ 206.201(c), 206.206(a), 206.224(c).
• PAPPG, at 12-15, 44, 60.
• Fla. Dept. of Transp., FEMA-4068-DR-FL, at 5.

 

Headnotes

• An applicant’s appeal of an eligibility determination must contain documented justification supporting the applicant’s position.  For a PNP, eligible debris removal is limited to that associated with an eligible facility.
  • The Applicant has not submitted documentation that the shoreline is associated with an eligible facility.  The record demonstrates that the shoreline is an open/natural area ineligible for PA funding.

 

Conclusion

The Applicant has not documented that the shoreline provides an eligible PNP service.  As a result, the shoreline is not an eligible PNP facility and the debris removal is ineligible.  Accordingly, the second appeal is denied. 

 

Appeal Letter

Appeal Analysis

Background

From August 23 through September 15, 2017, Hurricane Harvey struck the state of Texas.  High winds, heavy rains, and storm surge caused damage throughout the state.  The Ethician Foundation (Applicant), a Private Nonprofit (PNP), requested FEMA assistance for debris deposited on the shoreline (shoreline) of its Institute of Biospheric Studies Wildlife Preserve.  FEMA’s damage inventory described the work as cleanup of a “mix of white goods and hazardous material washed up on bank of wildlife preserve.  High water due to torrential downpour deposited garbage onto bank.”[1]  The wildlife preserve abuts Lake Livingston and contains a cemetery, roads, paths, a boat launch, a dock, and nature preserves.

The Applicant prepared a cost estimate for the work for FEMA on June 21, 2018, totaling $62,957.00.  The Applicant prepared an invoice for reimbursement to FEMA dated August 30, 2018, adding labor, equipment, and supplies costs, plus a 4 percent administration charge for a total of $44,861.63.  FEMA sent a Determination Memorandum dated October 11, 2018, denying the eligibility of the debris removal work.  FEMA stated that the debris removal had not been determined to be a public threat by a state or local government.  FEMA also stated that because the Applicant removed the debris from a nature reserve it was ineligible as an open natural area/feature or entity that promotes the preservation/conservation of such areas.

 

First Appeal

The Applicant appealed on December 9, 2018, requesting $62,957.00 for force account labor and equipment usage.  The Applicant asserted that the invoiced total did not reflect the costs of additional time spent by the Applicant’s president, that the work completed was only “phase 1,” and that to complete the work would require the full estimated total costs of $62,957.00.  The Applicant stated that less than 1 percent of the 12-mile shoreline was bordered by its nature reserve.  The Applicant stated that the debris removal would benefit the local community because Lake Livingston is used by recreational boaters.  The Texas Division of Emergency Management (Grantee) forwarded the appeal with a letter of support to FEMA on January 25, 2019.     

FEMA issued a Request for Information (RFI) on May 21, 2019, seeking additional information to support the appeal.  The Applicant participated in a facilitated discussion regarding the RFI with FEMA and the Grantee.  The Grantee also responded to the RFI by email on June 28, 2019, providing the Applicant’s description of the project:

Harvey deposited tons of debris onto [the Applicant’s] and Ethician Church shore lines which of course had a negative impact on the tourism economy associated with Lake Livingston.  The debris also presented public welfare issues in regard to sharp metal, broken glass, and other “White Goods Debris” as well as impede visitation to the lake by our visitors, and research scientists who come to study fish, mussels, and other wildlife that inhabit our shores.[2]

The FEMA Region VI Regional Administrator denied the appeal on November 18, 2019.  FEMA stated that eligible debris removal is limited to that associated with an eligible facility.  FEMA found that the shoreline did not provide an eligible PNP service and thus the debris removal was ineligible.  FEMA determined that the shoreline was an open natural area, not eligible for PA funding.  FEMA stated that the Applicant’s stated justification that the shoreline served the tourism economy associated with Lake Livingston, was also not an eligible PNP service.  FEMA also considered whether the stated “research scientists” could qualify the shoreline as an educational facility, but found that because the Applicant does not own or operate any State-recognized or accredited school, it could not meet the regulatory definition.

 

Second Appeal

In its second appeal dated February 3, 2020, the Applicant states that the debris removal is incomplete, and that the money required to complete the work increases the amount in question from $62,957.00 to $120,000.00.  The Applicant states that the shoreline is accessible to the general public and that debris on the shoreline poses public health threats from cuts and subsequent infections.  The Applicant reasserts that the shoreline is used by research scientists to study native animals, and that it functions as a place of worship.  The Grantee forwarded the second appeal with a letter of support on March 12, 2020.

 

Discussion

PNP Debris Removal

The Robert T. Stafford Disaster Relief and Emergency Assistance Act allows FEMA to provide funding to PNPs for debris removal resulting from a declared disaster.[3]  For a PNP, eligible debris removal is limited to that associated with an eligible facility.[4]  The term facility is defined as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.[5]  An eligible PNP facility is one that provides educational, utility, emergency, medical, or custodial care, including for the aged or disabled, and other essential social-type services to the general public.[6]  Recreation is a PNP ineligible service.[7]  Research facilities are not PNP eligible non-critical, essential social-type services.[8]  Houses of worship are eligible non critical, essential social type services.[9]  Open natural areas/features or entities that promote the preservation/conservation of such areas are not eligible.[10]  An applicant’s appeal of an eligibility determination must contain documented justification supporting the applicant’s position.[11]  The burden to substantiate an appeal claim with documented justification falls on the Applicant.[12]

The Applicant must document that the shoreline is an eligible facility for the debris removal to be eligible.[13]  The Applicant asserts that the shoreline is important for recreation and the local tourism economy, but providing recreation is an ineligible PNP service.[14]  The Applicant also contends that the shoreline is used by scientific researchers studying the local environment, however, scientific research is not among the eligible non critical, essential social type services recognized by FEMA.[15]  The Applicant asserts that the shoreline functions as a house of worship, which is an eligible PNP non critical, essential social type service.[16]  However, the Applicant has not identified any house of worship existing on the shoreline, it simply asserts that religious services take place along the shoreline.[17]  Conducting religious services in a natural environment does not create a facility, because there is no building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.[18]  The appeal record documents that the shoreline is an open, natural area, which is not an eligible PNP facility.[19]  The Applicant therefore has not demonstrated that the shoreline provides an eligible PNP service that would make it an eligible PNP facility.

 

Conclusion

The Applicant has not documented that the shoreline provides an eligible PNP service.  As a result, the shoreline is not an eligible PNP facility and the debris removal is ineligible.  Accordingly, the second appeal is denied.

 

 

[1] Damage Inventory #116320, at 5 (Aug. 9, 2018).

[2] Email from Section Admr, Grantee, to FEMA, at 2 (June 28, 2019, 1006 CST) (internal quotations in original).

[3] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403, Title 42, United States Code (42 U.S.C. ) § 5170b, and § 407, 42 U.S.C. § 5173 (2012).

[4] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.224(c) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 44 (April 1, 2018) [hereinafter PAPPG].

[5] 44 C.F.R. § 206.201(c).

[6] PAPPG at 15.

[7] PAPPG at 14, Table 3.

[8] PAPPG at 13, Table 2.

[9] Id.

[10] Id.

[11] 44 C.F.R. § 206.206(a).

[12] FEMA Second Appeal Analysis, Fla. Dept. of Transp., FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).

[13] Though debris removal is permissible as an emergency protective measure to eliminate or lessen immediate threats to lives, public health, or safety, for PNPs, eligible emergency protective measures are generally limited to activities associated with preventing damage to an eligible facility and its contents; thus the same analysis applies to this work whether it is categorized as debris removal or emergency protective measures.  See PAPPG at 60.

[14] PAPPG at 14, Table 3.

[15] PAPPG at 13, Table 2.  The Applicant does not explicitly contend in its appeal that this service makes the shoreline an education facility, and the shoreline does not meet those requirements. See PAPPG at 12, Table 1.

[16] PAPPG at 13, Table 2.

[17] Second Appeal at 4.

[18] 44 C.F.R. § 206.201 (c).

[19] PAPPG at 13, Table 2.