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Second Appeal Letter
PA ID# 061-UOF5G-00; Delta Farms Water Control District
PW ID# N/A; Improved Property
August 1, 2011
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Re: Second Appeal–Delta Farms Water Control District, PA ID 061-UOF5G-00 Improved Property, FEMA-1545-DR and FEMA-1561-DR
Dear Mr. Koon:
This is in response to a letter from your office dated December 27, 2010, which transmitted the referenced second appeal on behalf of the Delta Farms Water Control District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding, in the amount of $24,521, for emergency protective measures on agricultural land.
In response to torrential rains associated with Hurricanes Frances (FEMA-1545-DR) and Jeanne (FEMA-1561-DR) in September 2004, the Applicant conducted emergency pumping operations to prevent damage to commercially-owned agricultural land. The Applicant incurred increased operating costs as a result of this operation. FEMA did not prepare a project worksheet because these projects and their associated costs are not eligible for Public Assistance funding. On December 30, 2008, the Applicant requested reimbursement of these costs and noted that FEMA had approved the Applicant’s emergency pumping project in response to Tropical Storm Fay (FEMA-1785-DR). FEMA denied this request in September 2009, because the Applicant submitted its request four years after its November 3, 2004, kickoff meeting.
The Applicant appealed this determination on April 15, 2010. FEMA denied the Applicant’s appeal on July 15, 2010, because agricultural land and increased operating costs are not eligible for Public Assistance funding. FEMA has also taken action to recoup funds that were disbursed in error for the Applicant’s emergency pumping operation on agricultural land in response to Tropical Storm Fay.
The Applicant submitted its second appeal on September 27, 2010. The Applicant stated that it did not contest FEMA’s decision prior to December 30, 2008, because it followed the FEMA Public Assistance Coordinator’s eligibility determination. Following FEMA’s initial eligibility determination for Tropical Storm Fay, the Applicant argued that its emergency pumping operation in response to Hurricanes Frances and Jeanne should also have been eligible for reimbursement. The Applicant stated that Florida Statute – Title XXI Chapter 298 Drainage and Water Control charges it to manage flood control and irrigation on public property. However, the Applicant stated that it only owns 561 acres of the 2,833 acres of land where the emergency pumping occurred. The Applicant also contested FEMA’s determination that agricultural land is not improved property.
Pursuant to Title 44 Code of Federal Regulations (44 CFR) §206.221(d), Improved property, land that is used for agricultural purposes is not improved property for the purposes of the Public Assistance Program. Pursuant to 44 CFR §206.221(e)(3), Irrigation facilities, eligible irrigation facilities do not include water for agricultural purposes. The Applicant indicates that it is responsible for water management functions for citrus production enterprises associated with the water control district. FEMA’s initial eligibility determinations for emergency pumping operations in response to Hurricanes Frances and Jeanne are correct. As stated above, FEMA has taken action to recoup the funds that were disbursed in error for the Applicant’s emergency pumping operation on agricultural land in response to Tropical Storm Fay.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the Applicant’s first appeal 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.
cc: Major P. May
FEMA Region IV