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Second Appeal Brief
PA ID# 167-28068-00; City of Galveston
PW ID# N/A; Legal Responsibility
Conclusion: The City of Galveston is not legally responsible for the geo textile tube at Beachside Village Beach (Facility).
During the declared event, heavy rain, wind, and storm surge caused devastation to the City of Galveston (Applicant). The Applicant sought PA funding to repair the section of punctured and deflated beach geo textile tube and eroded sand dune system that runs through Beachside Village Beach. FEMA representatives prepared several Project Worksheets (PWs) to cover the restoration of damage discovered to other sections of the geo tube and other tube systems. However, FEMA did not prepare a PW for the section of the geo textile tube (Facility) at Beachside Village Beach because it determined the Applicant was not legally responsible for this Facility. Later, the Applicant requested that a PW be written for the work performed to repair the disaster- related damage. FEMA denied the Applicant’s request, asserting that documentation provided “clearly” demonstrated that the Beachside Village Home Owners Association (HOA) had legal responsibility for the Facility. In its first appeal, the Applicant submitted documentation to establish it was legally responsible. The Regional Administrator denied the appeal, finding that the documentation submitted showed that legal responsibility remains with HOA in the event of a storm or disaster. The Applicant failed to show that it had paid for Facility repairs. In its second appeal, the Applicant submits two letters, articulating that it is responsible for project repairs. The Applicant also claims failure to repair the section of the geotextile tube will cause unreasonable flood hazard to habitable structures because flood waters will be channeled to the structures through gaps in the existing geotextile tube. In an appeal meeting at FEMA headquarters, the Applicant admitted that it had the discretion to refrain from reimbursing the HOA, that it had not reimbursed the HOA for Facility repairs, and had not included such reimbursement in their annual budget.
Authorities and Second Appeals
- 44 C.F.R. § 206.223(a)(3)
- Pursuant to 44 C.F.R. § 206.223(a)(3), to be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant.
- An easement for the construction of a project on the Facility does not constitute legal responsibility, especially where the easement has a termination clause. Further, the Applicant has not reimbursed the HOA for repair work on the Facility, and doing so is not mandatory but rather within the Applicant’s discretion.