Environmental and Historic Preservation Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Collier (County),
Appeal Type	Second
PA ID#	021-99021-00
PW ID#	PW 5163
Date Signed	2021-02-02T17:00:00

Summary Paragraph

In 2017, Hurricane Irma damaged Collier County’s (Applicant) Stan Gober Bridge (Facility).  FEMA prepared Project Worksheet (PW) 5163, approving replacement of 219 tons of riprap to restore the Facility to predisaster condition.  FEMA placed a Clean Water Act (CWA) condition on the project, noting that the Applicant was responsible for coordinating with the U.S. Army Corps of Engineer (USACE) and obtaining any required CWA section 404 permit or a Letter of Determination of No Effect from USACE.   Thereafter, the Applicant transmitted various Florida orders relating to the disaster.  Specifically, Florida’s Executive Order No. 17-235 declared a state of emergency and suspended any statute or rule that would prevent, hinder, or delay any recovery action necessary to cope with this emergency.  Florida Department of Environmental Protection (FDEP) OGC No. 17-0989 authorized certain actions to be conducted without notice to FDEP or a water management district, namely, installation of shoreline stabilization riprap that restored locations to predisaster condition.  The Applicant relied on the Florida orders to claim that because it met FDEP requirements, it satisfied the grant’s CWA condition.  However, FEMA issued a determination memorandum finding that the Applicant did not demonstrate it coordinated the work completed with USACE or that it obtained either a required section 404 permit or a Letter of Determination of No Effect from USACE.  In first appeal filings, the Applicant reiterated its reliance on the Florida orders to claim it satisfied the CWA condition and asserted it had coordinated with USACE.  However, the FEMA Region IV Regional Administrator determined the Applicant had not demonstrated it complied with section 404 of the CWA because the Applicant had not provided documentation it coordinated with USACE to obtain either a permit for the work to the Facility or a declaration that no permit was required.  FEMA also noted that while the Florida orders waived certain state requirements, they did not exempt applicants from Federal regulations and permitting requirements.  The Applicant reiterates previously raised arguments on second appeal.

Authorities and Second Appeals

• 33 U.S.C. §§ 1311, 1344, 1362.
• 2 C.F.R. §§ 200.300(a)-(b), 200.338(b)-(c), (f); 33 C.F.R. §§ 323(a), 330.1(c); 44 C.F.R. §§ 10.4(a), 206.206(a).
• FEMA Instruction 108-1-1, Instruction on Implementation of the Environmental Planning and Historic Preservation Responsibilities and Program Requirements, at 5, 24.
• PAPPG, at 8.
• Vill. of Waterford, FEMA-4020-DR-NY, at 3.

Headnotes

• Implementing section 404 of the CWA, 33 C.F.R. § 323(a) provides that generally, a USACE permit is required for the discharge of dredged or fill material into U.S. waters.
  • Here, the Applicant has not produced documentation verifying it obtained a section 404 from USACE.
• Pursuant to prior second appeal decisions, the burden to substantiate claims rests with the applicant.
  • Here, the Applicant asserts it satisfied the CWA by meeting all state environmental requirements, but does not cite to a specific Federal provision that exempted the Applicant from the section 404 permitting requirements.

• Per 2 C.F.R. § 200.338, FEMA may disallow all costs if a non-Federal entity fails to comply with Federal statutes, regulations, or the terms and conditions of a Federal award.
  • Because the Applicant has not demonstrated it coordinated with USACE (a condition of the award), or complied with the CWA, FEMA will disallow all costs associated with this project.

Conclusion

The Applicant has not demonstrated it coordinated with USACE, obtained a permit from USACE as required under section 404 of the CWA, or satisfied an exception to the permitting requirements of that section.  Accordingly, this appeal is denied. 

Appeal Letter

Appeal Analysis

Background

From September 4 through October 18, 2017, Hurricane Irma impacted Collier County (Applicant), damaging the Stan Gober Bridge (Facility) running over Marco Channel.[1]  FEMA prepared Grants Manager Project 40460, subsequently reclassified as Project Worksheet (PW) 5163, to document repairs to restore the Facility.  This included replacement of 219 tons of riprap that had washed out near the bank and shore.  Consequently, FEMA placed a Clean Water Act (CWA) condition on the project, noting that “[the] Applicant is responsible for coordinating with and obtaining any required [section] 401 and 404 permit(s) from [Florida Department of Environmental Protection (FDEP)] and the United States Army Corps of Engineers (USACE) or otherwise a Letter of Determination of No Effect from the [USACE].”[2]

On October 17, 2018, FEMA emailed the Applicant correspondence that indicated the placement of riprap and its proximity to navigable waters required certain documentation before the Agency could complete its environmental and historic preservation review.  FEMA sought evidence of a permit for work, evidence of coordination with USACE in which it was declared no permit is needed, or a declaration by the Applicant of work being performed under a USACE Nationwide Permit (NWP).  FEMA also noted that it may require evidence of coordination with FDEP or a statement that work was performed as allowed under an emergency order. 

The Applicant responded by transmitting the repair plans for the Facility and referencing the “permits” clause, which stated, “[t]his project is an emergency repair and falls under Florida State of Emergency Declaration-Executive Order No. 17-235 and [F]DEP [Office of General Counsel (OGC)] No. 17-0989 emergency authorization for repairs, replacement, restoration and certain other measures made necessary by Hurricane Irma.”[3]  Florida’s Executive Order No. 17-235 declared a state of emergency and authorized the State Coordinating Officer to “suspend the effect of any statute, rule, or order that would in any way prevent, hinder, or delay any mitigation, response, or recovery action necessary to cope with this emergency.”[4]  FDEP OGC No. 17-0989 authorized certain actions to be conducted without notice to FDEP or a water management district, namely, installation of shoreline stabilization riprap that restored locations to predisaster condition.[5]

On January 23, 2019, FEMA transmitted to the Applicant a Request for Information pertaining to the replacement of riprap at the Facility.  FEMA again sought documentation of a section 404 permit from USACE, or a Letter of Determination of No Effect from USACE.  In response, the Applicant resubmitted the repair plans for the Facility, reiterating its assertion that the necessary permits were listed within the plans.

On February 28, 2019, after receiving confirmation from the Applicant that it had completed work to the Facility, FEMA finalized its Record of Environmental Consideration.  It referenced the CWA condition placed on the project and noted that the Applicant had not provided requested documentation of coordination with USACE for work in water.  Therefore, it determined the project was noncompliant with the CWA. 

Thereafter, FEMA issued a determination memorandum, finding that the Applicant did not demonstrate it coordinated the work completed with USACE or that it obtained either a required section 404 permit or a Letter of Determination of No Effect from USACE.  Because the project was noncompliant with the CWA, FEMA determined the work was ineligible for Public Assistance and denied $76,482.18 in requested costs for the project.

 

First Appeal

The Applicant appealed FEMA’s denial, stating that it obtained the necessary permits from FDEP and as such, was in compliance with the CWA.  It therefore would have been duplicative and unnecessary for the Applicant to obtain the same CWA-permitting from USACE.  Further, the Applicant asserted it in fact coordinated with USACE and in support, cited to a supporting note entered by FEMA in the PW.[6]  In a supplemental first appeal, the Applicant stated that based on the guidance set forth by FDEP OGC No. 17-0989, the work it completed to address immediate public safety concerns regarding the Facility did not require permits from FDEP.

The Florida Division of Emergency Management (Grantee) transmitted the appeal to FEMA with a letter of support.  The Grantee stated that when a state environmental protection agency (EPA) meets the Federal EPA standards, the Federal EPA defers to the state agency to enforce the environmental protection requirements, including those of the CWA.  Because the Applicant obtained the necessary permits from the state agency, the Applicant should be found in compliance with the CWA.

On August 3, 2020, the Region IV Regional Administrator denied the appeal, finding that the Applicant had not demonstrated it complied with section 404 of the CWA.  FEMA concluded the Applicant had not provided documentation it coordinated with USACE to obtain either a permit for the work to the Facility or a declaration that no permit was required.

 

Second Appeal

The Applicant filed a second appeal, again citing to the language from FDEP OGC No. 17-0989 that allowed the performance of certain work (i.e., the installation of the riprap at issue) without notice to Florida’s Agency.  The Grantee transmitted the appeal to FEMA with an accompanying letter supporting the $76,482.18 in requested costs.  The Grantee reiterates its assertion that the Applicant complied with all environmental requirements.

 

Discussion

Sections 301 and 502 of the CWA prohibit the discharge of any dredged or fill material into navigable waters (i.e., waters of the U.S.), unless the applicant has complied with section 404 of the CWA, which sets forth USACE’s authority for issuing permits for dredged or fill material.[7]  Implementing section 404, Federal regulation provides that generally, a USACE permit is required for the discharge of dredged or fill material into U.S. waters.[8]  USACE will consider unauthorized any activity requiring USACE authorization if that activity is under construction or completed and does not comply with all of the terms and conditions of an NWP, regional general permit, or an individual permit.[9] 

FEMA must manage and administer awards in a manner so as to ensure that Federal funding is expended and associated programs are implemented in full accordance with U.S. statutory and public policy requirements, such as those protecting the environment.[10]  Therefore, FEMA has a responsibility to comply with section 404 of the CWA.[11]  If a non-Federal entity fails to comply with Federal statutes, regulations, or the terms and conditions of a Federal award, FEMA may disallow all or part of the cost or activity not in compliance, wholly or partly suspend or terminate the award, or take other remedies that may be legally available.[12]

Here, the Applicant’s replacement of 219 tons of riprap near the shoreline of a navigable waterway represents dredging or filling that implicates section 404 of the CWA.  Accordingly, FEMA placed a CWA condition on the project, mandating that the Applicant obtain any required section 404 permit from USACE or otherwise a Letter of Determination of No Effect from USACE.  Although FDEP OGC No. 17-0989 allowed riprap work without notice to or a permit from FDEP, it acknowledged applicants were still required to obtain required Federal permits and comply with FEMA requirements (e.g., the CWA condition).[13]  Nonetheless, the Applicant did not obtain a section 404 permit from USACE for the work completed.  While the Applicant asserts it did not need to obtain a section 404 permit, the Applicant has not cited to a specific Federal provision that exempted it from the requirement.[14]  Consequently, the Applicant has not demonstrated its riprap replacement work complied with the CWA or the related grant requirement.  

Further, the Applicant has not demonstrated coordination with USACE.  The Applicant relies on FEMA’s note in the PW that stated the Applicant had communicated with USACE, but this statement inaccurately summarized the underlying documentation.  The relevant underlying documentation in fact only stated communication with USACE would occur once the Applicant had awarded the contract and begun the work.[15]  The Applicant has not produced additional documentation that verifies actual USACE communication after that point.  Thus, the Applicant has not demonstrated it satisfied the grant condition that required coordination with USACE.

Based on the above, the Applicant’s riprap replacement work constituted an unauthorized activity that did not comply with the CWA.  Consequently, FEMA disallows all requested funding associated with this project.

 

Conclusion

The Applicant has not demonstrated it coordinated with USACE, obtained a permit from USACE as required under section 404 of the CWA, or satisfied an exception to the permitting requirements of that section.  Therefore, this appeal is denied.

 

[1] The President issued a major disaster declaration on September 10, 2017.

[2] Project Worksheet 5163, Collier (County), Emergency Management Mission Integrated Environment (EMMIE), Entire Application, at PDF 17-18 (last visited Nov. 30, 2020).

[3] Collier County Contract Plans from Professional Eng’r, Cardno, Stan Gober Bridge Emergency Slope Protection Repair Project for CR 92 over Marco Channel, Bridge No. 030184, at B-2 (Oct. 16, 2017).

[4] State of Fl. Office of the Governor Executive Order No. 17-235, Emergency Mgmt. – Hurricane Irma, at 2-3 (Sept. 4, 2017).

[5] State of Fl. Dep’t of Environmental Protection (FDEP), Emergency Authorization for Repairs, Replacement, Restoration, and Certain Other Measures Made Necessary By Hurricane Irma OGC No. 17-0989, Emergency Final Order, section C2.a.(2)(e), at 14 (Sept. 5, 2017) [hereinafter FDEP OGC No. 17-0989 Emergency Final Order No. 1]; FDEP, Emergency Authorization for Repairs, Replacement, Restoration, and Certain Other Measures Made Necessary By Hurricane Irma OGC No. 17-0989, Eighth Amended and Restated Emergency Final Order, section C2.a.(2)(e), at 18 (Feb. 27, 2018) [hereinafter FDEP OGC No. 17-0989 Emergency Final Order No. 8].

[6] See PW 5163, Collier (County), EMMIE, Entire Application, at PDF 17 (“The applicant did communicate with the U.S. Coast Guard and [USACE]”), citing to “40461 DR4337–Email Permits.pdf.”  However, “40461 DR4337–Email Permits.pdf” is the EMMIE description assigned to a document that includes October 2018 emails between FEMA personnel.  These emails indicated that communication with Federal agencies would not occur until the Applicant awarded the contract, and specifically, communication would occur with the U.S. Coast Guard and USACE when the Applicant began the project.

[7] 33 United States Code §§ 1311 (prohibiting discharge of pollutants absent compliance with other CWA provisions including section 404), 1344 (authorizing section 404 permits for the discharge of dredged or fill material), 1362 (defining “discharge of pollutants” to include the addition of dredged material into navigable waters) (2012).

[8] Title 33 Code of Federal Regulations (C.F.R.) § 323.3(a) (2017).  This section also outlines exceptions to the general requirement, noting that discharges do not require a permit if the discharge is exempted by § 323.4 of this part or permitted by 33 C.F.R. part 330.

[9] Id. § 330.1(c).

[10] 2 C.F.R. § 200.300(a) (2017); Public Assistance Program and Policy Guide, FP 104-009-2, at 8 (Apr. 1, 2018) (stating that FEMA must ensure every Public Assistance project complies with applicable Federal environmental laws and their implementing regulations).  See generally, 2 C.F.R. § 200.300(b) (providing that “[t]he non-Federal entity is responsible for complying with all requirements of the Federal award”).

[11] FEMA Instruction 108-1-1, Instruction on Implementation of the Environmental Planning and Historic Preservation Responsibilities and Program Requirements, at 24 (Oct. 10, 2018).  This instruction replaced 44 C.F.R. part 10 (FEMA Instruction 108-1-1, Instruction on Implementation of the Environmental Planning and Historic Preservation Responsibilities and Program Requirements, at 5).  See generally, 44 C.F.R. § 10.4(a) (requiring that FEMA act with care in carrying out its responsibilities to ensure that it did so in a manner consistent with national environmental policies) (removed and reserved Aug. 22, 2016).

[12] 2 C.F.R. § 200.338(b)-(c), (f).

[13] See FDEP OGC No. 17-0989 Emergency Final Order No. 1, section C.6.f., at 26 and FDEP OGC No. 17-0989 Emergency Final Order No. 8, section C.6.f., at 30 (“Persons are advised that all structures that are rebuilt should be rebuilt in accordance with all applicable local, state, and federal building standards and requirements of [FEMA].”); FDEP OGC No. 17-0989 Emergency Final Order No. 1, section D.4., at 32 and FDEP OGC No. 17-0989 Emergency Final Order No. 8, section D.4., at 36-37 (“This Order . . . does not provide relief from the requirements of other federal, state, water management districts, and local agencies.  This Order therefore does not negate the need . . . to obtain any other required permits or authorizations, nor from the need to comply with all the requirements of those agencies.”).

[14] Pursuant to 44 C.F.R. § 206.206(a) (2016), an appeal must contain documented justification supporting an applicant’s position and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.  See FEMA Second Appeal Analysis, Vill. of Waterford, FEMA-4020-DR-NY, at 3 (Sept. 4, 2014) (“The Applicant has the burden of substantiating its claims.”).

[15] See supra, n. 6.