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Second Appeal Letter
PA ID# xxx-xxxxx; Diamondhead Country Club and Property Owners Association
PW ID# NA; Request for Public Assistance
February 16, 2010
Thomas M. “Mike” Womack
Governor’s Authorized Representative
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, Mississippi 39208-5644
Re: Second Appeal: Diamondhead Country Club and Property Owner’s Association
PA ID 045-UX7AC-00, Request for Public Assistance, FEMA-1604-DR-MS
Dear Mr. Womack:
This letter is in response to your letter dated February 25, 2009, which transmitted the referenced second appeal on behalf of the Diamondhead Country Club and Property Owner’s Association (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Management Agency’s (FEMA) denial of a Request for Public Assistance to dredge 43,190 cubic yards of sediment from Paradise Bayou and adjacent finger canals for an estimated cost of $1,079,750.
On December 6, 2005, FEMA denied the Applicant’s Request for Public Assistance. FEMA determined that the Applicant did not own or operate a facility providing essential government services to the general public as required by Title 44 Code of Federal Regulations (CFR) § 206.221(e) Private nonprofit facility, and 44 CFR § 206.222(b). On February 27, 2008, in a response to a request from the State of Mississippi, FEMA, again, denied assistance for the dredging project.
The Applicant submitted its first appeal in a letter dated June 6, 2008. The Applicant stated that its roads, common spaces, amenities, and the marina are open to the public. The Applicant also contended that Paradise Bayou is a public waterway used by fisherman, recreational boaters and various governmental agencies including the Mississippi Department of Marine Resources (MDMR). According to the Applicant, MDMR uses the public boat ramp to stage several vessels and the use gives the department access to the Bay of St. Louis and surrounding waterways. The Applicant also asserted that FEMA provided assistance after Hurricane Katrina to remove debris and fallen trees in the area.
On November 12, 2008, the Regional Administer denied the first appeal. First, the Regional Administrator indicated that the Applicant did not meet the deadline for submission of appeals. The Applicant submitted its first appeal well over two years after the denial of Public Assistance. Pursuant to 44 CFR §206.206, Appeals, applicants must file appeals within 60 days of receipt of notice of the determination being appealed. Second, FEMA’s Recovery Division Policy 9521.3, Private Nonprofit Facility (PNP) Eligibility, dated May 23, 2003, specifies that recreation facilities and facilities maintained by property owners associations such as roads and recreation facilities are not eligible for Public Assistance. Third, the Regional Administrator indicated that FEMA could not find information to support the Applicant’s contention that it directly received Federal assistance for debris removal from its roads and canals after Hurricane Katrina. However, the Regional Administrator pointed out that Federal assistance for debris removal as an emergency protective measure does not establish eligibility for dredging sediment from a canal for repair or restoration of the waterway.
The Applicant submitted its second appeal in a letter dated January 21, 2009, re-stating its request for funding for the dredging of Paradise Bayou. The State of Mississippi forwarded the appeal to FEMA in a letter dated February 25, 2009. The State of Mississippi requested that FEMA determine that at least the portion of Paradise Bayou connecting the marina with open water is a utility or emergency facility, which would therefore be eligible under FEMA policy.
The State contends that FEMA Recovery Division Policy 9521.3, Private Nonprofit Facility (PNP) Eligibility, allows FEMA to consider a facility owned by a property owners association, such as recreational facilities and roads, as eligible when those facilities serve as utilities or emergency facilities. As stated in Section 7.B.2. of the policy, a facility must be primarily used for one of the services or facilities listed in 44 CFR 206.221(e) Private nonprofit facility. Neither the Applicant nor the State provided documentation to substantiate that the waterway in question is primarily used as a utility or an emergency facility, as opposed to a recreational facility. With regard to the previous provision of assistance, the Applicant and the State indicated that the debris removal operations were conducted through grant assistance to Hancock County and FEMA’s agreement with the U.S. Coast Guard, not through assistance that was provided to the Diamondhead Country Club and Property Owner’s Association as the Sub-Grantee. As stated by the Regional Administrator, the previous provision of debris removal assistance as an emergency protective measure does not constitute a determination of eligibility for dredging of a waterway in the same area to restore its pre-disaster condition. Lastly, neither the Applicant nor the State provided any information to address the lack of compliance with the regulatory deadline for submission of appeals.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Major P. May
FEMA Region IV