Laketown Park

Appeal Brief

Appeal Letter

Appeal Analysis

Background

On August 29, 2005 flooding from Hurricane Katrina caused damage to the City of Kenner’s (Applicant’s) 15-acre Laketown Park facility located on the shores of Lake Pontchartrain.  The Department of Homeland Security’s Federal Emergency Management Agency (FEMA) obligated Project Worksheet (PW) 11755 for $323,304.55 to fund the restoration of the Laketown Park facility, which included the replacement of riprap along the shoreline of the park, the replacement of 11,033 cubic yards (cy) of eroded fill and grass reseeding over the entire surface area of the park, and associated engineering and project management services.  The Applicant completed repairs to the damaged shoreline riprap, but decided not to restore the eroded soil throughout the 15-acre park at the same time.  Grass had grown back over the surface areas of the park and replacing the eroded soil would interfere with ongoing public use for an extended period.

On December 28, 2009, the Applicant requested approval for an improved project to use $277,897.80 in unused funding approved in PW 11755 to place fill and raise the elevation of a 1.7 acre section of the park to allow construction of a dog park in accordance with the Kenner Laketown Feasibility Study (the master plan for the park) rather than replacing the eroded soil throughout the entire 15-acre park to raise the entire facility to its pre-disaster elevation.  The Applicant stated that it intends to rebuild the eroded surface of the park in phases to allow the community to continue to use the majority of the facility while it undertakes the construction of the dog park in a small area.  The Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) approved the Applicant’s request on March 2, 2010. 

On November 16, 2010, the Applicant submitted a revised request to use the funding to construct the dog park at the nearby North Kenner Park, outside of the Coastal High Hazard Area (V zone.)  According to the Applicant, FEMA objected to constructing the dog park in Laketown Park because it was located within a V zone.  The Grantee approved the Applicant’s revised request on March 7, 2011.  On December 12, 2011, FEMA denied the Applicant’s request on the basis that the Applicant had restored Laketown Park to its pre-disaster function and capacity and unused funds for the eligible scope of work could not be approved to build a new dog park at another location.

First Appeal

On February 10, 2012, the Applicant submitted its first appeal of the denial of its request for an improved project for PW 11755 and requested approval to use excess funding from PW 11755 toward the construction of a new dog park in North Kenner Park.  The Applicant asserted that it had not restored Laketown Park as it had not replaced the soil eroded by the event.  Instead, the Applicant preferred to improve the facility by constructing a dog park and to relocate it outside of the V zone.

On March 14, 2013, the FEMA Region VI Regional Administrator denied the first appeal stating that the function of a dog park had not existed at Laketown Park or at North Kenner Park prior to the disaster and that funding can only be used for eligible work relative to the function and capacity of the facility at the time of the event.

Second Appeal

The Applicant submitted its second appeal on May 21, 2013 reiterating its position that FEMA misunderstood the facts as they pertain to the restoration of the eroded soils at Laketown Park.  The Applicant contends that it met FEMA’s improved project requirements by gaining approval from the Grantee to construct the new dog park at Laketown Park.  The funding, the Applicant argues, was to facilitate an improvement to the Laketown Park facility, while still restoring the park to it pre-disaster function and capacity.  Finally, the Applicant further asserts that there is no prohibition against changing the location of an improved project provided the function remains the same. The Applicant requests that FEMA reverse its determination to deny the improved project request and allow the unused portion of the eligible funding from PW 11755 to be used to construct a new dog park at the nearby North Kenner Park or at the original location.[1]

Discussion

In accordance with Title 44 Code of Federal Regulations (44 C.F.R) §206.203 (d)(1), Funding Options, Improved Projects, if a subgrantee (applicant) desires to make improvements, but still restore the pre-disaster function of a damaged facility, the Grantee’s approval must be obtained.  Federal funding for such improved projects shall be limited to the Federal share of the approved estimate of eligible costs.  In this case, the damaged facility is the Laketown Park, and the Applicant wishes to improve upon the facility by replacing the fill that washed away at one specific location and at varying elevations, rather than replace the fill to the pre-disaster grade of the entire 15-acre park, and ultimately adding a dog park.  The Grantee approved the Applicant’s initial request, and the pre-disaster function of the facility, recreation, will not be changed by replacing fill in a different location to prepare the site for the construction of a dog park; therefore, placing the 11,033 cy of engineered fill in the 1.7 acre area identified as the future location of a dog park in Laketown Park is eligible as an improved project.  The regulations, however, do not provide an option to use improved project funding to improve upon a distinctly different facility, such as North Kenner Park.

During the review of the Applicant’s second appeal FEMA conducted a preliminary environmental review of the project as initially proposed in December 2009.  As the proposed project location is in a V zone any FEMA funded new construction must meet FEMA’s definition of functionally dependent or facilitate open space use.  Placing fill in preparation for the construction of a dog park is allowable as it will facilitate open space use.  FEMA anticipates that the formal environmental review will find the project compliant with applicable law, regulation and policy if the Applicant adheres to the following conditions:

• The project will be limited to the placement of non-structural fill.
• All utility services in the Coastal High Hazard Area need to be reasonably safe from the base flood to achieve minimum National Flood Insurance Program requirements.

Conclusion

Placing 11,033 cy of engineered fill in the 1.7 acre area identified as the future location of a dog park in Laketown Park as the Applicant originally requested in its December 28, 2009 letter is eligible as an improved project, contingent upon a formal FEMA environmental and historic review.