Marina Dredging Costs
Appeal Brief
Appeal Letter
Citation: FEMA-1604-DR-MS, Mississippi Department of Marine Resources (Applicant), Marina Dredging Costs, Project Worksheet (PW) 10928
Cross-reference: General Eligibility; Legal Responsibility
Summary: As a result of Hurricane Katrina, FEMA prepared PW 10928 to fund cost to dredge sediment deposited in Broadwater Marina. The Applicant entered into a Public Trust Tidelands Lease with BH Acquisition Corporation (Corporation) on August 2, 1992, for use of the marina, including 544,064 square feet of submerged lands. FEMA determined that the project was not eligible for funding because the lease specifically assigns responsibility of marina repairs to the Corporation, which is not an eligible applicant.
The Applicant submitted its first appeal on October 12, 2007, asserting that the marina is a public use facility. The Applicant also argues that FEMA incorrectly interpreted the lease by assigning responsibility for marina repairs to the Corporation. FEMA denied the first appeal concluding that the lease assigns to the Corporation the full responsibility for clearance of any disaster-related debris deposited on the 544,064 square feet of submerged lands that constitute the leased property. A second appeal was submitted by the Applicant on May 5, 2008, and reiterates its position presented in the first appeal, specifically, challenging FEMAs interpretation of the lease that the Corporation has the legal responsibility to repair facility damage. Support documents include an assessment by the U.S. Army Corps of Engineers for the marina dredge operation (a project cost estimate was not included with assessment), and a letter from the Mississippi Secretary of State to the Executive Director of the Department of Marine Resources supporting the Applicants position.
Issues: Is the Applicant legally responsible for repairs to Broadwater Marina?
Findings: No. The lease agreement clearly establishes that the BH Acquisition Corporation has legal responsibility for repairing the marina.
Rationale: 44 CFR §206.223(a) (3); Public Assistance Guide, FEMA 322, pages 23, 30-31
Appeal Brief
| Disaster | FEMA-1604-DR |
| Applicant | Mississippi Department of Marine Resources |
| Appeal Type | Second |
| PA ID# | 000-UBLZT-00 |
| PW ID# | Project Worksheet |
| Date Signed | 2008-10-14T04:00:00 |
The Applicant submitted its first appeal on October 12, 2007, asserting that the marina is a public use facility. The Applicant also argues that FEMA incorrectly interpreted the lease by assigning responsibility for marina repairs to the Corporation. FEMA denied the first appeal concluding that the lease assigns to the Corporation the full responsibility for clearance of any disaster-related debris deposited on the 544,064 square feet of submerged lands that constitute the leased property. A second appeal was submitted by the Applicant on May 5, 2008, and reiterates its position presented in the first appeal, specifically, challenging FEMAs interpretation of the lease that the Corporation has the legal responsibility to repair facility damage. Support documents include an assessment by the U.S. Army Corps of Engineers for the marina dredge operation (a project cost estimate was not included with assessment), and a letter from the Mississippi Secretary of State to the Executive Director of the Department of Marine Resources supporting the Applicants position.
Appeal Letter
October 14, 2008
Thomas M. Mike Womack
Governors Authorized Representative
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, Mississippi 39288
Re: Second AppealMississippi Department of Marine Resources, PA ID 000-UBLZT-00, Marina Dredging Costs, FEMA-1604-DR-MS, Project Worksheets (PW) 10928
Dear Mr. Womack:
This is in response to your letter dated July 9, 2008, which transmitted the referenced second
appeal on behalf of the Mississippi Department of Marine Resources (Applicant). The
Applicant is appealing the Department of Homeland Securitys Federal Emergency Management
Agencys (FEMA) decision to deny funding to remove debris from Broadwater Marina.
Following Hurricane Katrina, FEMA prepared PW 10928 to fund cost to dredge sediment deposited in the marina during the hurricane. The Applicant entered into a Public Trust Tidelands Lease with BH Acquisition Corporation (Corporation) on August 2, 1992, for use of the marina, including 544,064 square feet of submerged lands. FEMA determined that the dredging project was not eligible for funding because the lease specifically assigns responsibility of marina repairs to the Corporation, which is not an eligible applicant.
The Applicant submitted its first appeal on October 12, 2007, asserting that the marina is a public use facility and therefore, eligible for Public Assistance. To support its claim, the Applicant cited sections 9 and 22 of the lease, which the Applicant maintains establishes the public nature of the facility. The Applicant also stated that FEMA incorrectly interpreted section 17 of the lease, Catastrophic Destruction, by assigning responsibility for marina repairs to the Corporation. Specifically, section 17 states, In the event of catastrophic destruction by natural causes of LESSEES improvements on SAID PROPERTY, LESSEE may terminate this lease at its option, provided SAID PROPERTY is surrendered in a condition at least equal to that at the inception of this lease. LESSOR agrees that it shall interpose no objection should LESSEE decide to rebuild those improvements demolished in such a catastrophe.
On March 13, 2008, the Regional Administrator denied the appeal, concluding that the lease assigns to the Corporation the full responsibility for clearance of any disaster-related debris deposited on the 544,064 square feet of submerged lands that constitute the leased property.
The Applicant submitted its second appeal on May 5, 2008, and reiterated its position presented in the first appeal. Specifically, it challenged FEMAs interpretation of the lease that the Corporation has the legal responsibility to repair damage to the facility. Support documents include an October 16, 2007, assessment by the U.S. Army Corps of Engineers for the marina dredge operation (project cost estimate was not included with assessment), and a
April 25, 2008, letter from the Mississippi Secretary of State to the Executive Director of the Department of Marine Resources. The Secretarys letter addresses section 17 of the lease concluding that, Under the lease provisions, the State would expect after catastrophic destruction that all debris be removed before turning the property back over to the State, but would not expect that the lessee dredge the marina to its pre-hurricane depth. The letter, however, does not make a distinction between hurricane-related dry land and submerged land debris.
Pursuant to 44 CFR §206.223(a)(3), To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. The language of the lease clearly indicates that marina repairs are the legal responsibility of the Corporation.
I have reviewed the information submitted with the appeal and have determined the Regional Administrators decision in the first appeal is consistent with Public Assistance Program regulations and policies. 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.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
cc: Major P. May
Regional Administrator
Thomas M. Mike Womack
Governors Authorized Representative
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, Mississippi 39288
Re: Second AppealMississippi Department of Marine Resources, PA ID 000-UBLZT-00, Marina Dredging Costs, FEMA-1604-DR-MS, Project Worksheets (PW) 10928
Dear Mr. Womack:
This is in response to your letter dated July 9, 2008, which transmitted the referenced second
appeal on behalf of the Mississippi Department of Marine Resources (Applicant). The
Applicant is appealing the Department of Homeland Securitys Federal Emergency Management
Agencys (FEMA) decision to deny funding to remove debris from Broadwater Marina.
Following Hurricane Katrina, FEMA prepared PW 10928 to fund cost to dredge sediment deposited in the marina during the hurricane. The Applicant entered into a Public Trust Tidelands Lease with BH Acquisition Corporation (Corporation) on August 2, 1992, for use of the marina, including 544,064 square feet of submerged lands. FEMA determined that the dredging project was not eligible for funding because the lease specifically assigns responsibility of marina repairs to the Corporation, which is not an eligible applicant.
The Applicant submitted its first appeal on October 12, 2007, asserting that the marina is a public use facility and therefore, eligible for Public Assistance. To support its claim, the Applicant cited sections 9 and 22 of the lease, which the Applicant maintains establishes the public nature of the facility. The Applicant also stated that FEMA incorrectly interpreted section 17 of the lease, Catastrophic Destruction, by assigning responsibility for marina repairs to the Corporation. Specifically, section 17 states, In the event of catastrophic destruction by natural causes of LESSEES improvements on SAID PROPERTY, LESSEE may terminate this lease at its option, provided SAID PROPERTY is surrendered in a condition at least equal to that at the inception of this lease. LESSOR agrees that it shall interpose no objection should LESSEE decide to rebuild those improvements demolished in such a catastrophe.
On March 13, 2008, the Regional Administrator denied the appeal, concluding that the lease assigns to the Corporation the full responsibility for clearance of any disaster-related debris deposited on the 544,064 square feet of submerged lands that constitute the leased property.
The Applicant submitted its second appeal on May 5, 2008, and reiterated its position presented in the first appeal. Specifically, it challenged FEMAs interpretation of the lease that the Corporation has the legal responsibility to repair damage to the facility. Support documents include an October 16, 2007, assessment by the U.S. Army Corps of Engineers for the marina dredge operation (project cost estimate was not included with assessment), and a
April 25, 2008, letter from the Mississippi Secretary of State to the Executive Director of the Department of Marine Resources. The Secretarys letter addresses section 17 of the lease concluding that, Under the lease provisions, the State would expect after catastrophic destruction that all debris be removed before turning the property back over to the State, but would not expect that the lessee dredge the marina to its pre-hurricane depth. The letter, however, does not make a distinction between hurricane-related dry land and submerged land debris.
Pursuant to 44 CFR §206.223(a)(3), To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. The language of the lease clearly indicates that marina repairs are the legal responsibility of the Corporation.
I have reviewed the information submitted with the appeal and have determined the Regional Administrators decision in the first appeal is consistent with Public Assistance Program regulations and policies. 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.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
cc: Major P. May
Regional Administrator
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