Are sand dunes stable enough for a FEMA appeal?


South Bethany’s $10,000 appeal isn’t based on whether the sand dunes protect town. Instead, the appeal is based on whether the Federal Emergency Management Agency (FEMA) believes they protect it enough to lower flood insurance rates.

It could be a longshot, which the town council felt heavily on Dec. 11 in their nearly-split vote to appeal the latest FEMA-issued flood insurance rate map (FIRM).

The 4-3 vote was carried by Carol Stevenson, Sue Callaway, Wayne Schrader and George Junkin voting in favor. Pat Voveris, Frank Weisgerber and Tim Saxton voted against.

Via conference call, environmental consultant Leslie Fields of the Woods Hole Group described the route of attack: argue that the dune has protected South Bethany and prove it has enough vegetation to be a considered an established dune.

Typically, WHG has an idea of how successful a FEMA appeal will be, Fields said. “This is a special case. We don’t feel as confident.”

WHG is confident in its technical data, but not in FEMA’s internal process or policy.

FEMA could choose to treat South Bethany’s seven-year-old, artificially-built dune like a more longstanding dune, based on how well the vegetation has taken root.

FEMA rarely includes rebuilt dunes in its analysis. Exceptions include Ocean City, Md., Virginia Beach, Va., Sand Bridge, Va., and Hilton Head, S.C. Due to time constraints, WHG couldn’t research details as to why FEMA considers those particular projects in its analysis.

It was previously suggested that FEMA doesn’t use engineered dunes partly because there is no dedicated funding for repairs.

The U.S. Army Corps of Engineers doesn’t design the dunes specifically to protect in a “100-year storm event” (or the severest storms, which have a 1 percent likelihood of occurring in any given year). They simply design to the best cost-benefit analysis.

But South Bethany’s dunes are “performing well during major storm events,” including Sandy, Ida and Joaquin, Fields said.

Even when they eroded South Bethany’s small dune, WHG found “that remaining lump of sand provides protection for the town,” Fields said.

“The dune itself is protecting the property, that’s no question … [But] funding isn’t guaranteed. Those properties are now at risk. Correct?” Weisgerber said.

“We think FEMA would use that argument, yes. We don’t see that in the regulations anywhere …but they are using that case in South Bethany,” Fields said.

“It’s not the policy. It’s the practice,” Callaway clarified.

FEMA regulations have some wiggle room regarding dunes.

“They don’t explicitly say that FEMA can’t consider engineered or structured dunes. [Instead, they say] the method of eroding the dunes could be different if the reconstructed dunes are or aren’t vegetated,” Fields said.

The Woods Hole Group knew most of this after analyzing the data (Tasks 1 and 2 of their work for the Town). The town council unanimously directed WHG to develop the best strategy of appeal (Task 3).

Now, WHG will draft the actual appeal (Task 4) and respond to any FEMA requests for more information (Task 5).

Property owners had already spent $15,000 privately, and the Town had spent $10,000, for two separate environmental consultations. The Town was then asked to fund and help manage the WHG appeal.

Voveris said she was disappointed that WHG hadn’t spoken with FEMA, as expected, to determine how the appeal avenue might be received. Fields said the return phone call hadn’t come through yet.

During the appeal process, WHG would continue to have meetings or provide additional data to FEMA, as needed.

South Bethany’s dune was created in 2008 and is on a 50-year maintenance plan. The Corps replenishes the beach every three years — pending Congressional budget approval every time the work is due. Replenishment costs are split 65/35 between the feds and state. Some beach towns have a guarantee of complete beach funding, even if the federal government couldn’t pay. But Delaware’s do not.

It’s possible for back-to-back storms to demolish Delaware beaches before sand replenishment could occur.

The town’s next regularly scheduled beach replenishment is in 2017, according to Town Manager Mel Cusick. But if the sand naturally builds up before then, DNREC will push some of the sand back to further build up the dunes.

The consultants are unable to use their initial planned approach of proving that FEMA applied inconsistent methodology to its FIRM update for South Bethany’s shores, because their own analysis was too close to FEMA’s to make a strong case.

“Despite two important engineering inconsistencies in FEMA’s 2015 analysis,” Fields wrote, when WHG analyzed South Bethany with the most stringent of FEMA guidelines, “we ended up with maps that looked very similar to the 2015 revised maps that the Town is being asked to approve right now,” Fields said.

But when WHG considered the dune, the models showed less risk for houses along the west side of Ocean Drive.

Residents chime in

Resident Betsi Baker pointed out that WHG has a good track record of winning FEMA appeals.

“They’re going to do their job,” Voveris said. “But the key is we hired them to make a recommendation,” which didn’t result in the Town being strongly recommended to make an appeal.

“They also didn’t tell you not to do it,” Baker said.

If the town council gives up the appeal, residents who try to continue fighting will be a “three-legged dog” before FEMA, said resident David Brune.

“All you gotta do is invest 10,000 more dollars,” Brune said. “You don’t gotta go to the courts. The home owners will be more than willing to do that. … Money is not the issue, let’s face it. The issue is protecting the citizens.”

Although private citizens could use the WHG information as a jumping-off point, the consulting firm previously indicated that, if contracted by the Town, it did not wish to be jointly contracted by the citizens.

A split council

After 80 minutes of discussion, the town council’s decision to appeal was a see-saw of “yes” and “no.”

In the end, Junkin’s “yes” vote tipped the scales forward. Although he had earlier said, “I don’t think we’re on the positive side of getting through to FEMA,” Junkin has been in the crosshairs with some property owners. His questioning of FEMA’s original maps — which would have had oceanfront homes in a more lenient VE-10 zone — may have prompted FEMA to re-evaluate South Bethany more rigorously than ever before.

“I think we’ve taken it to great measure. I think we’ve spent a lot of time on it. … You just have to be realistic about things,” Voveris said.

“FEMA has said publicly and privately that they would not accept the dune,” Voveris said. “We’re up against FEMA practice. … For them to count our dune when they said they wouldn’t would set precedent and open up a big can of worms for them.”

Weisgerber remained relatively quiet during the discussion. But after the meeting, he said he couldn’t recommend an appeal that hangs only on a dune, which may not be counted, and providing an opportunity for residents to possibly take a rejected appeal to the courts system. He also questioned the likelihood of FEMA changing the maps a second time at South Bethany’s request.

After the vote, Callaway thanked Voveris for her leadership on a project that will continue to need leadership.

“That’s why I almost voted no, because of the headaches it will cause us,” Junkin said.

“I hope my no vote was wrong,” and that the appeal is somehow successful, Saxton said.

If FEMA acknowledges the dune

“I’m looking at 143 homes that suddenly wouldn’t need flood insurance, and that blows my mind,” Callaway said of the potential FIRM if FEMA considers the dune to be established.

Compared to FEMA’s revised 2015 map, WHG’s map would pull all but three Ocean Drive homes from the VE-13 zone to the AO-3 zone. A large swath of homes east of Route 1 would go from AO-3 to the X zone (requiring no flood insurance). A few of those could move from AO-3 to AE-7. (These are different methods of analyzing the height of wave action or of flood waters.)

The appeal will include WHG’s modeling, digital data, maps and a narrative that explains why FEMA should consider the dunes.

“Good luck, everybody. I don’t envy you in making this decision,” Fields concluded. “But good luck.”

South Bethany pre-planned the costs for WHG’s service: $12,780 already paid for analysis and strategizing; $7,280 for drafting and filing the actual appeal; and up to $3,300 for additional tracking and FEMA support.

With the council’s final approval, the appeal is due to FEMA by Jan. 20.

In other South Bethany news:

• The South Bethany Police Department’s Hummer has been painted and decaled to match the fleet. Extra highway patrols have also been added to deter people from driving while intoxicated this holiday season.

• After being recertified for the Community Rating System, South Bethany flood insurance policies see an average savings of $113 each.

• Approximately 88 percent of budgeted revenue has already been collected for this fiscal year. The town council will consider a budget amendment in February for legal costs and the first half of the 2016 fiscal year.

• The flood mitigation project at 204 Carlisle Road has begun, after more than two years of preparation. FEMA and the property owner will split the cost, 75/25, for the $53,050 project.

• The Charter & Code Committee was instructed to act as a “think-tank” by developing recommendations for the council on issues surrounding floating docks and boat lifts.

They will develop recommendations for house height and voluntary freeboard to accommodate new BFEs. Saxton questioned whether council is getting ahead of itself when the appeal has just started. Voveris said she wanted some dialog already on the books and for the committee to be working during town council’s month off.

The town council’s next regular meeting will be in February.