This page has not been translated into Français. Visit the Français page for resources in that language.
US Army Corps of Engineers Venice Beach Project
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1393-DR-FL; City of Venice; PW 569
Cross-reference: Statutory Authority, Other Federal Agency, USACE
Summary: On September 14, 2001, Tropical Storm Gabrielle eroded 74,000 cubic yards of sand from the beach in the City of Venice. The U.S. Army Corps of Engineers (USACE) did not issue a notice for participants in its Shoreline Protection Program to apply for emergency assistance because the damage was not severe enough and was, therefore, not deemed cost effective. A PW was written for the beach restoration at a cost of $805,860. FEMA denied the project, stating that the project is not eligible due to the beach [being] under the jurisdiction of the USACE, and also does not follow the minimum cycle of five years for an approved beach renourishment program. The City appealed on
November 13, 2002, claiming that the Local Cooperation Agreement with USACE, as well as a letter from USACE dated January 16, 2002, does not bar the City from storm-related beach restoration in cooperation with FEMA. FEMA denied the appeal on February 6, 2003, reiterating the reasons from the initial denial. After consultation with USACE, it was determined that the Federal jurisdiction of the beach was under USACE. On March 19, 2003, the City submitted a second appeal. The State in its transmittal letter indicated it no longer supported the project, based on 44 CFR 206.226(a).
Issues: Does FEMA have to fund restoration of a beach, which is under the USACE Shoreline Protection Program authorized by P.L. 84-99?
Findings: No.
Rationale: 44 CFR §206.226 (a), FEMAs Public Assistance Guide 322, page 19.
On September 14, 2001, Tropical Storm Gabrielle made landfall north of Venice, Florida. The storm surge eroded approximately 20 to 50 feet of shoreline and it was estimated that approximately 74,000 cubic yards of sand was lost from the engineered beach.
The City of Venice applied to the U.S. Army Corps of Engineers (USACE) for emergency assistance under the Shoreline Protection Program and was turned down because the damage was not severe enough to be cost effective. The City then turned to FEMA for assistance. A project worksheet was written for the restoration of 74,000 cubic yards of sand at a cost of $805,860. FEMA denied the project on January 10, 2002, indicating in the PW comments that the project is not eligible due to the beach [being] under the jurisdiction of the USACE.
First Appeal
The City appealed FEMAs initial ineligible determination in a letter dated
November 13, 2002. The State supported the appeal in its transmittal letter dated December 18, 2002. The City argued that based upon a statement from USACE and paragraph c of the USACE Local Cooperation Agreement, the City is not barred from seeking assistance from FEMA. A letter dated January 16, 2002, from USACE to the City stated The cost sharing agreement does not prohibit the City [from placing suitable sand on the project in cooperation with FEMA] and does not provide for our office to cost share in such costs by the City. The Local Cooperation Agreement, paragraph c states:
The term total cost of the initial construction shall not include any costs for betterments, operation, maintenance, repair, replacement, or rehabilitation or any costs incurred for the establishment of an erosion control line in the project area.
The City also stated that damage to the beach pertains to the functional portion that is under the responsibility of the City and not USACE to maintain. The City has actively maintained the beach at a cost of $951,718 from 1996 to 2002.
FEMA denied the appeal in a letter dated February 6, 2003, stating that after consultation with USACE, it was determined that the beach was not eligible for assistance from FEMAs Public Assistance program because the beach was under the Federal jurisdiction of USACE. The Region also cited the Public Assistance Guide, FEMA 322, page 19, The USACE also has the authority to construct and repair facilities that protect the shorelines of the United States.
Second Appeal
On March 19, 2003, the City submitted a second appeal. The State transmitted the Citys second appeal to FEMA on May 27, 2003, indicating it no longer supported the project, based on 44 CFR 206.226(a). The State pointed out The USACE has authority to provide emergency repair assistance to the Subgrantee as an active participant in the USACE shoreline protection program. Even though the USACE did not make such assistance available, [it] had the authority to do so, which renders the project ineligible for FEMA disaster assistance.
DISCUSSION
The Citys beach is an engineered structure that is part of the USACE Shoreline Protection Program. The City of Venice entered into a Project Cooperation Agreement with the USACE on December 23, 1993. Paragraph c of the agreement outlines elements of the project that are not cost shared by USACE. In its letter, USACE indicated that seeking funding from FEMA would not constitute a duplication of benefits, as required under paragraph c of the agreement. However, in this situation only USACE, not FEMA, has specific authority to fund this project.
Under the Emergency Authorities of Public Law 84-99, USACE has statutory authority to repair federally constructed hurricane or shore protection structures damaged by flooding or coastal storms. To date, the City is still actively participating in the USACE Shoreline Protection Program. Therefore, restoration of disaster-related damage to Venice Beach is under the specific authority of the USACE Shoreline Protection Program and is ineligible for funding per 44 CFR §206.226(a), Assistance under Other Federal Programs, and FEMAs Public Assistance Guide, FEMA 322, page 18, which states:
FEMA assistance generally is not available if another agencys program can reimburse an applicant for work done by that applicant. Denial of payment by itself is not a basis for requesting public assistance from FEMA. If the work is not emergency work, it is not eligible for public assistance.
CONCLUSION
Venice Beach is a federally constructed structure under the specific authority of the USACE. Pursuant to 44 CFR §206.226(a), this project is not eligible for FEMA funding. The appeal is denied.
Appeal Brief
| Disaster | FEMA-1393-DR |
| Applicant | City of Venice |
| Appeal Type | Second |
| PA ID# | 115-73900-00 |
| PW ID# | 569 |
| Date Signed | 2003-10-03T04:00:00 |
November 13, 2002, claiming that the Local Cooperation Agreement with USACE, as well as a letter from USACE dated January 16, 2002, does not bar the City from storm-related beach restoration in cooperation with FEMA. FEMA denied the appeal on February 6, 2003, reiterating the reasons from the initial denial. After consultation with USACE, it was determined that the Federal jurisdiction of the beach was under USACE. On March 19, 2003, the City submitted a second appeal. The State in its transmittal letter indicated it no longer supported the project, based on 44 CFR 206.226(a).
Appeal Letter
October 3, 2003
Mr. W. Craig Fugate
Director
Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
Re: Second Appeal City of Venice, PA ID 115-73900-00, US Army Corps of Engineers Venice Beach Project, FEMA-1393-DR-FL, Project Worksheet 569
Dear Mr. Fugate:
This letter is in response to your May 27, 2003, letter forwarding the referenced second appeal on behalf of the City of Venice. The City disputes FEMAs eligibility determination regarding restoration of its beach. The amount in question is $805,860.
As described in the enclosed appeal analysis, FEMA does not undertake restoration projects that are under the specific authority of the U.S. Army Corps of Engineers. Accordingly, I conclude that the City is not eligible for assistance. Therefore, I am denying the appeal.
Please inform the City of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response
Department of Homeland Security
Enclosure
cc: Kenneth O. Burris, Jr.
Regional Director
Region IV
Mr. W. Craig Fugate
Director
Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
Re: Second Appeal City of Venice, PA ID 115-73900-00, US Army Corps of Engineers Venice Beach Project, FEMA-1393-DR-FL, Project Worksheet 569
Dear Mr. Fugate:
This letter is in response to your May 27, 2003, letter forwarding the referenced second appeal on behalf of the City of Venice. The City disputes FEMAs eligibility determination regarding restoration of its beach. The amount in question is $805,860.
As described in the enclosed appeal analysis, FEMA does not undertake restoration projects that are under the specific authority of the U.S. Army Corps of Engineers. Accordingly, I conclude that the City is not eligible for assistance. Therefore, I am denying the appeal.
Please inform the City of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response
Department of Homeland Security
Enclosure
cc: Kenneth O. Burris, Jr.
Regional Director
Region IV
Appeal Analysis
BACKGROUNDOn September 14, 2001, Tropical Storm Gabrielle made landfall north of Venice, Florida. The storm surge eroded approximately 20 to 50 feet of shoreline and it was estimated that approximately 74,000 cubic yards of sand was lost from the engineered beach.
The City of Venice applied to the U.S. Army Corps of Engineers (USACE) for emergency assistance under the Shoreline Protection Program and was turned down because the damage was not severe enough to be cost effective. The City then turned to FEMA for assistance. A project worksheet was written for the restoration of 74,000 cubic yards of sand at a cost of $805,860. FEMA denied the project on January 10, 2002, indicating in the PW comments that the project is not eligible due to the beach [being] under the jurisdiction of the USACE.
First Appeal
The City appealed FEMAs initial ineligible determination in a letter dated
November 13, 2002. The State supported the appeal in its transmittal letter dated December 18, 2002. The City argued that based upon a statement from USACE and paragraph c of the USACE Local Cooperation Agreement, the City is not barred from seeking assistance from FEMA. A letter dated January 16, 2002, from USACE to the City stated The cost sharing agreement does not prohibit the City [from placing suitable sand on the project in cooperation with FEMA] and does not provide for our office to cost share in such costs by the City. The Local Cooperation Agreement, paragraph c states:
The term total cost of the initial construction shall not include any costs for betterments, operation, maintenance, repair, replacement, or rehabilitation or any costs incurred for the establishment of an erosion control line in the project area.
The City also stated that damage to the beach pertains to the functional portion that is under the responsibility of the City and not USACE to maintain. The City has actively maintained the beach at a cost of $951,718 from 1996 to 2002.
FEMA denied the appeal in a letter dated February 6, 2003, stating that after consultation with USACE, it was determined that the beach was not eligible for assistance from FEMAs Public Assistance program because the beach was under the Federal jurisdiction of USACE. The Region also cited the Public Assistance Guide, FEMA 322, page 19, The USACE also has the authority to construct and repair facilities that protect the shorelines of the United States.
Second Appeal
On March 19, 2003, the City submitted a second appeal. The State transmitted the Citys second appeal to FEMA on May 27, 2003, indicating it no longer supported the project, based on 44 CFR 206.226(a). The State pointed out The USACE has authority to provide emergency repair assistance to the Subgrantee as an active participant in the USACE shoreline protection program. Even though the USACE did not make such assistance available, [it] had the authority to do so, which renders the project ineligible for FEMA disaster assistance.
DISCUSSION
The Citys beach is an engineered structure that is part of the USACE Shoreline Protection Program. The City of Venice entered into a Project Cooperation Agreement with the USACE on December 23, 1993. Paragraph c of the agreement outlines elements of the project that are not cost shared by USACE. In its letter, USACE indicated that seeking funding from FEMA would not constitute a duplication of benefits, as required under paragraph c of the agreement. However, in this situation only USACE, not FEMA, has specific authority to fund this project.
Under the Emergency Authorities of Public Law 84-99, USACE has statutory authority to repair federally constructed hurricane or shore protection structures damaged by flooding or coastal storms. To date, the City is still actively participating in the USACE Shoreline Protection Program. Therefore, restoration of disaster-related damage to Venice Beach is under the specific authority of the USACE Shoreline Protection Program and is ineligible for funding per 44 CFR §206.226(a), Assistance under Other Federal Programs, and FEMAs Public Assistance Guide, FEMA 322, page 18, which states:
FEMA assistance generally is not available if another agencys program can reimburse an applicant for work done by that applicant. Denial of payment by itself is not a basis for requesting public assistance from FEMA. If the work is not emergency work, it is not eligible for public assistance.
CONCLUSION
Venice Beach is a federally constructed structure under the specific authority of the USACE. Pursuant to 44 CFR §206.226(a), this project is not eligible for FEMA funding. The appeal is denied.