Debris Removal

January 17, 2012

Bryan Koon

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Re:  Second Appeal – Jacksonville Port Authority, PA ID 031-UAL2B-00, Debris Removal, FEMA-1545-DR-FL, Project Worksheets (PW) 4294 and 4478

Dear Mr. Koon:

This is in response to your letter dated February 4, 2011, which transmitted the referenced second appeal on behalf of the Jacksonville Port Authority (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $1,429,893 for sediment removal from two marine terminals. 

Background

Heavy rains from Hurricane Frances washed large amounts of sediment into the St. John’s River, including two marine terminals operated by the Applicant.  FEMA prepared PWs 4294 and 4478 to dredge sediment from these terminals to eliminate immediate threats to lives, public health, and safety and ensure economic recovery of the affected community.  At the time the PWs were written, FEMA could not verify the amount of sediment deposited from the storm and estimated the amounts.  PW 4294 was written to remove 117,798 cubic yards of sediment, at $6.50 per yard for a total of $765,687, from the Talleyrand Marine Terminal.  PW 4478 was written to remove 154,569 cubic yards of sediment, at $6.50 per yard, for a total of $1,004,049 from the Dames Point Marine Terminal.  The two marine terminals are commercial waterways and regular maintenance dredging is performed by the United States Corps of Engineers (USACE) to allow channel access.  During final inspection of the PWs FEMA received the average amounts of sediment dredged from each channel for the prior three fiscal years, and compared this to the amounts removed in 2005 after Hurricane Frances.  Based on this information, the amount of sediment attributed to the disaster was less than the amounts estimated.  PW 4294 was reduced to zero dollars and PW 4478 was reduced to $339,843.  

First Appeal 

The Applicant appealed this determination on December 14, 2009, stating that the St. John’s River is “lazy” and the sediment from Hurricane Francis accumulated over a two year period.  The Applicant also stated that the sediment removal should be considered permanent work and could not be completed within a standard emergency work timeframe.  The Regional Administrator denied the first appeal on July 22, 2010, stating that the additional sediment and dredging costs could not be attributed to the disaster, and also cited the six month deadline for completion of emergency work. 

Second Appeal

The Applicant submitted its second appeal on February 4, 2011.  The Applicant reiterated the claim that due to the “lazy” nature of the St. John’s River, additional sediment caused by Hurricane Frances accumulated over a two year period and is requesting FEMA approve funding in the amount of $1,429,893.  The Applicant is also claiming that the sediment removal should be considered permanent work and could not be completed within a six month time frame.  The Applicant included a letter from an engineering firm and a hydrology report from 2002.

Discussion

Pursuant to 44 CFR §206.223 (a) General Work Eligibility, “To be eligible for financial assistance, an item of work must: (1) be required as the result of the major disaster event.”  Upon final inspection for both PWs, FEMA obtained information on the average amounts of sediment dredged from each facility for the previous three fiscal years (2002, 2003, and 2004) and compared this to the total amount dredged in 2005 after the disaster.  For the Talleyrand Marine Terminal, the three year average was 116,338 cubic yards and the amount dredged in 2005 was 90,365 cubic yards, showing no sediment accumulation as a result of the storm.  For the Dames Point Marine Terminal, the three year average was 72,581.5 cubic yards and the amount dredged in 2005 was 124,865 cubic yards, justifying removal of 52,283.5 cubic yards of sediment for a total of $339,843 necessary to eliminate immediate threats to lives, public health, and safety, and ensure economic recovery of the affected community.

The Applicant states that the St. James River is “lazy” and sediment accumulation as a result of the disaster may take several years.  According to 44 CFR §206.204(c) Deadlines, the completion deadline for debris removal is six months, and the grantee may extend this deadline an additional six months.  The Applicant did not request an additional six months for debris removal to extend this time to one year.  The Applicant is also claiming that the sediment removal is permanent work, and should fall under a two year deadline.  According to FEMA Public Assistance Guide (FEMA 322), emergency work includes debris removal of sand, mud, silt and gravel from waterways (pp. 67-68) when it would cause an immediate threat to lives, public health or safety, or damage to improved property.  The two documents the Applicant included with the second appeal do not provide sufficient evidence that additional sediment accumulated in the two marine terminals is a result of the Hurricane Frances.  Therefore, the additional debris removal costs are ineligible.      
Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the Applicant’s appeal is consistent with the Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.  

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:     Major P. May

Regional Administrator

FEMA Region IV