Appeal Brief

Appeal Letter

Appeal Analysis

Background

FEMA determined that four engineered beaches in Collier County are eligible for Public Assistance (PA) permanent work funding as improved and maintained beaches.  These beaches suffered sand erosion from Tropical Storm Gabrielle (FEMA-1393-DR-FL), Hurricane Katrina (FEMA-1602-DR-FL), and Hurricane Wilma (FEMA-1609-DR-FL).  FEMA prepared several Project Worksheets (PWs) to replace the sand eroded by each storm.

The Collier County Public Services Division (Applicant) performed nourishment work in two separate projects that had different design firms and contractors.  The first renourishment project, the mainland project, to restore the Naples, Vanderbilt, and Park Shore beaches substantially to their 1996 design, was completed in 2006.  The other renourishment project, to restore the Marco Island beach to its design, was completed in 2007.  While the Applicant’s appeal only addresses PWs under FEMA-1393-DR-FL, in order to properly assess the eligible work and costs, both renourishment projects must be examined in conjunction with all three disasters.  Table 1 provides information on the ten PWs (including versions) for eligible work that was accomplished as part of the renourishment projects.

From September 13 to September 21, 2001, Tropical Storm Gabrielle eroded Collier County’s public beaches.  FEMA prepared PWs 566 and 673 for the restoration of 70,650 CY of sand to the Naples beach and 49,441 CY to the Marco Island beach, respectively.  The disaster related damages documented in the PWs’ eligible scopes of work were derived from pre- and post-storm surveys.  The Applicant was unable to complete the required repairs until the Florida Department of Environmental Protection (FDEP) issued an environmental permit for the renourishment, under Florida Statutes, Chapters 161 and 370, as the Applicant’s 1999 permit for county-wide beach maintenance allowed for only 50,000 CY of spot nourishments annually.  On April 3, 2009, FEMA received from the Florida Division of Emergency Management (Grantee) Final Inspection Reports (FIR), dated June 30, 2008, for each PW.  The FIR indicated that work on the beach projects had completed on May 1, 2006.  FEMA prepared final reconciliation reports on March 31, 2010, and initiated close-out of the PWs.

First Appeal

The Grantee submitted a first appeal on behalf of the Applicant on April 9, 2010.  In the appeal, the Grantee claimed that PWs 566 and 673 were closed in error as costs for three years of beach environmental and turtle monitoring, required by federal regulations and FDEP, were absent from the approved costs.  Additionally, the Grantee requested that FEMA increase the eligible amount of the PWs based on an apportionment of the actual sand replacement costs.  Included with the appeal were draft closeout versions of PW 566 and 673.

With the draft Version 3 of PW 566, the Grantee requested that FEMA consolidate the three mainland beach PWs, by combining scope of work and cost adjustments for PWs 568 and 575 for Vanderbilt and Park Shore beaches, respectively, with Naples Beach under a single closeout version of PW 566.  The PW included line item costs of $10,200.00 for Environmental Monitoring, $278,556.95 for Force Account Labor, and a lump sum of $9,945,945.77 for Contracts.  The PW’s revised scope of work explained that the proposed Contracts cost represented 34% of the 2006 Mainland Collier County Beach Renourishment Project.  This apportionment came from a January 2010 report titled, “Tropical Storm Gabrielle, Hurricanes Katrina and Wilma Storm Impact Re-assessment Report: 1995-1996 Collier County Beach Nourishment Project,” that was prepared by Collier County’s consultant for the mainland beach nourishment project, Coastal Planning and Engineering, Inc. (CPE).  The report partitioned the sand loss between Naples, Vanderbilt, and Park Shore and used estimates to divide the total into complementary portions by attributing 55% of the sand replacement to Hurricane Wilma (FEMA-1609-DR-FL), 11% to Hurricane Katrina (FEMA-1602-DR-FL), and the remaining 34% to Tropical Storm Gabrielle (FEMA-1393-DR-FL).

The Grantee also submitted a proposed draft Version 2 of PW 673 for the Marco Island beach that included line items of $13,766.00 for Environmental Monitoring, $73,645.54 for Force Account Labor, and a lump sum Contracts cost of $1,159,812.50.  The scope of work detailed that the Contract cost represented 68.83% of the cost of the sand renourishment contract.  This factor was derived by subtracting the 55,000 CY of sand estimated on PW 6733 attributed to Hurricane Wilma under FEMA-1609-DR-FL, from the total volume of sand replaced, 176,457 CY, for the Marco Island renourishment.

In a September 30, 2010, letter partially granting the Grantee’s appeal, the Regional Administrator determined that the incurred environmental and turtle monitoring costs are eligible for reimbursement and directed that versions of PWs 566 and 673 be prepared to reflect those costs.  The Regional Administrator further determined that no adequate basis was provided for attributing the proposed portions of the 2006 and 2007 renourishment projects to PWs 566 and 673.  The Regional Administrator noted that the Grantee’s request to amend the scopes of work was submitted five years after FEMA approved the scopes of work on July 8, 2004.  Pursuant to Title 44 Code of Federal Regulations (CFR) §206.206(c)(1), Time Limits, applicants must file appeals within 60 days after receipt of a notice of the determination that is being appealed.

Second Appeal

With a letter dated January 24, 2011, the Grantee supported and forwarded the Applicant’s November 24, 2010, second appeal to FEMA.  In the appeal, the Applicant asserted that FEMA based the approved scopes of work on estimated volumes of sand loss from the beaches, rather than the actual quantity of sand required to restore the beaches.  To address this difference, the Applicant requested that FEMA increase the approved scopes of work and associated costs to reflect the amount of sand replaced during the 2006 and 2007 renourishment projects.  The Applicant also requested that FEMA combine the three mainland beach PWs under a new version of PW 566 as shown in Table 2.  The Applicant submitted copies of the proposed draft closeout versions of PWs 566 and 673 that the Grantee had previously submitted with the first appeal.