Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Corkscrew Shores Master Association, Inc.
Appeal Type	Second
PA ID#	071-UTY58-00
PW ID#	PW 1434
Date Signed	2020-11-30T17:00:00

Summary Paragraph

Hurricane Irma’s high winds, heavy rain, and high water damaged the Corkscrew Shores Master Association, Inc.’s potable water supply pretreatment facility (Facility) surrounding its 240-acre man-made lake located in Lee County, Florida.  FEMA determined the Applicant was not eligible for PA as it is a property owner’s association that did not provide a critical or non-critical essential government service.  The Applicant appealed, arguing its Facility provides an essential and critical service protecting Lee County’s water supply, and that the Facility’s operation and maintenance had been mandated by Lee County.  The Applicant also noted the system is a requirement of a South Florida Water Management District (SFWMD) Environmental Resource Permit.  The Applicant argued the Facility qualified as an eligible facility under either Title 44 of the Code of Federal Regulations (C.F.R) § 206.221(e)(2) or § 206.221(e)(3).  The FEMA Region IV Regional Administrator (RA) denied the appeal.  The RA noted that, while the Applicant is a private nonprofit (PNP) whose lake may have an indirect impact on a critical utility, it does not provide a critical service that can be classified as a utility or emergency facility.  The Applicant’s second appeal argues FEMA misunderstands the nature of the Facility and the critical essential service it provides, and includes an email from a certified Lee County Professional Geologist/Engineer who states the Facility is critical for protecting the County’s public supply wells.

Authorities and Second Appeals

• Stafford Act § 406.
• 44 C.F.R. §§ 206.221(e), 206.222(b).
• Public Assistance Program and Policy Guide, FP 104-009-2, V3.1 (PAPPG), at 12, 14, 123.

Headnotes

• According to the PAPPG, property owners’ associations with facilities such as roads and recreational facilities are ineligible, except facilities that can be classified as utilities or emergency facilities.  The PAPPG classifies irrigation facilities as utilities.  44 C.F.R. § 206.221(e)(3) defines irrigation facilities as eligible PNP facilities if they provide water for essential services of a governmental nature to the general public, including drinking water supply. 
  • The Applicant is a PNP that does not own or operate a Facility that provides a critical utility service.

 

Conclusion

FEMA finds the Applicant, a PNP, does not own or operate a Facility that provides a critical service such as a utility or emergency facility, and is therefore not eligible for PA funding.  The appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

During the incident period September 4 through October 18, 2017, Hurricane Irma struck Florida with strong winds, torrential rains and tidal surge, and damaged facilities owned by Corkscrew Shores Master Association, Inc. (Applicant), a Private Nonprofit (PNP) homeowners’ association (HOA).  The Applicant is located within a resource conservation area (Wellfield Protection Zone) designated by Lee County to protect and sustain groundwater aquifers that provide public drinking water supplies.  The Applicant’s facilities include a potable water supply pretreatment facility (Facility), which prevents contaminants from entering the Applicant’s 240-acre lake via stormwater runoff.  The Applicant submitted a Request for Public Assistance (RPA) to FEMA that encompassed four projects with a total cost of $1,208,512.45, including one project involving restoration of its Facility.  FEMA determined the Applicant was ineligible for Public Assistance (PA) funding as it is a property owners association that does not provide a critical or non-critical essential government service.  

 

First Appeal

The Applicant appealed the RPA denial by letter dated December 19, 2018 and requested costs totaling $1,145,000.00.[1]  The Applicant argued that it operates an eligible utility or irrigation PNP facility per Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.221(e), because it provides an essential and critical service protecting Lee County’s drinking water supply.[2]  The Applicant stated Lee County Utilities (LCU) purposely placed its water supply wells near the lake to take advantage of its storage and water quality, and the lake provides a clean and sustainable water supply.  The Applicant cited to requirements imposed by Lee County and the South Florida Water Management District that it operationally maintains the Facility.[3]  The Florida Division of Emergency Management (Grantee) concurred by letter dated February 12, 2019 and noted that FEMA policy lists irrigation and storm water management facilities as eligible water control facilities when built for those purposes.[4]

On June 14, 2019, FEMA issued a Request for Information (RFI) for documentation demonstrating legal responsibility for the Facility, the predisaster condition of the Facility, and that the Facility meets FEMA’s PNP facility eligibility criteria.[5]  The Applicant responded on July 11, 2019 with the requested documentation.[6]  The Applicant noted that its lake was purposely surrounded by potable supply wells due to its 5 billion gallon water storage capacity and its ability to supply potable water and attenuate aquifer drawdown.  The Applicant reiterated that the Facility was eligible under 44 C.F.R. § 206.221 and FEMA policy and that it was essential to the protection of its lake and the water supply.[7]

The FEMA Region IV Regional Administrator (RA) denied the appeal on December 17, 2019.[8]   FEMA first noted that irrigation facilities are not included among the list of eligible facilities owned or operated by property owner associations in FEMA policy.  FEMA also noted that LCU owns and operates the Corkscrew Water Treatment Plant which treats groundwater obtained from aquifer wellfields and supplies drinking water to the general public.  FEMA stated the Applicant’s Facility, which FEMA characterized as a lake close to the aquifer wellfields, may have an indirect impact on a critical utility but it does not itself provide a critical utility service, and the “tenuous relationship” between the lake and other emergency or critical facilities is not enough to find the lake eligible.[9]  FEMA stated the Applicant is a PNP, but it does not own or operate a facility that provides a critical service that can be classified as a utility or emergency facility pursuant to 44 C.F.R. § 206.221(e).

 

Second Appeal

The Applicant’s February 14, 2020 second appeal requests consideration as an eligible PNP applicant and argues that FEMA misunderstands the nature of the Facility and the critical service it provides, that it is an integral part of the County water supply, and is necessary to protect and sustain the Corkscrew Public Supply Wellfield.[10]  The Applicant describes how the Facility includes a stabilized substrate and geosynthetic underlayment engineered to temporarily detain stormwater runoff and filter potential contaminants.  A statement from a certified County Professional Geologist/Engineer represents that the Facility is critical for the protection of the County’s public supply wells, three of which are constructed next to and to the same depth as the onsite lake.[11]  The Engineer states the Corkscrew Shores Community is located within the protection zone for the Lee County wellfield, and warns that without the surface water protections “the Water-Table Aquifer can be jeopardized from a pollutant discharge reaching the County’s potable water system in as little as 6 months.”[12]  The Grantee supports the Applicant by letter dated April 30, 2020.[13]

 

Discussion

Private Nonprofit

Under section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as implemented by 44 C.F.R. § 206.221(e), FEMA may reimburse costs associated with the repair, restoration, replacement, or reconstruction of an eligible PNP facility that provides critical services or non-critical services after certain conditions are met.[14]  PNPs which own or operate a PNP facility as defined in § 206.221(e) are eligible to apply for PA.[15]  Per 44 C.F.R. § 206.221(e)(3), an irrigation facility means those facilities that provide water for essential services of a governmental nature to the general public.  Irrigation facilities include facilities providing water for fire suppression, generating and supplying electricity, and drinking water supply.[16]  Utility means buildings, structures, or systems of energy, communication, water supply, sewage collection and treatment, or other similar public service facilities.[17]  Property owners associations with facilities such as roads and recreational facilities are ineligible, except facilities that can be classified as utilities or emergency facilities.[18] 

The Applicant states that its Facility maintains water quality in the County’s potable supply wells.  Further, a Lee County engineer concluded that the Facility was an integral part of the County water system without which “the Water-Table Aquifer [could] be jeopardized from a pollutant discharge reaching the County’s potable water system in as little as 6 months.”[19]  The Applicant is responsible for inspecting, maintaining, and monitoring the Facility per state regulations, and is mandated to test the water to meet drinking water standards.  However, the Facility is not an irrigation facility as it does not provide drinking water for Lee County, and it is not a utility such as a water company supplying municipal water responsible for water treatment, transmission, and distribution.[20]  Accordingly, FEMA concludes that the Applicant does not own or operate a facility that provides a critical utility service.

 

Conclusion

The Applicant, a Private Nonprofit, does not own or operate a facility that provides a critical service such as a utility or emergency facility, and is therefore not eligible for PA funding.  Therefore, the appeal is denied.

 

 

[1] Letter from Principal, Progressive Water Res., to Regional Adm’r, FEMA Region IV (Dec. 19, 2018) (appealing the RPA denial but focusing the appeal primarily on the project on issue here captured in Project Worksheet 1434).

[2] Id. at 1, 3 (citing Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.221(e)(2)-(3) (2016)).

[3] Id. at 2 (citing S. Fla. Water Mgmt. Dist., Environmental Resource Permit No. 36-03254-P (Sep. 3, 2013), and Lee Cty., Covenant to Create an Enhanced Lake Management/Maintenance Plan (Oct. 14, 2013)).

[4] Letter from Deputy Bureau Chief, Fla. Div. of Emergency Mgmt., to Reg’l Adm’r, FEMA Region IV (Feb. 12, 2019).

[5] Letter from Recovery Div. Dir., to Dir., Fla. Div. of Emergency Mgmt. (June 14, 2019).

[6] Letter from Principal, Progressive Water Res., to Dir., Recovery Div., FEMA (July 11, 2019).

[7] Id. at 1-2 (citing 44 C.F.R. § 206.221(e)(2)-(3); and Public Assistance Program and Policy Guide, FP-104-009-2, at 123 (Apr. 2018) [hereinafter PAPPG]).

[8] FEMA First Appeal Analysis, Corkscrews Shores Master Ass’n, Inc., FEMA-4337-DR-FL (Dec. 17, 2019).

[9] Id at 3.  See FEMA Second Appeal Analysis, Hammock Dunes Owners’ Ass’n, FEMA-4238-DR-FL, at 6 (May 15, 2018) (stating “A tenuous relationship between a facility and other emergency or critical facilities is not enough to find that facility eligible.”).

[10] Letter from Principal, Progressive Water Res., to Dir., Fla. Div. of Emergency Mgmt. (Feb. 14, 2020).

[11] Email from Surface Water Mgr., Div. of Natural Res., Lee Cty., to Progressive Water Res. (Feb. 6, 2020, 1120 EST) [hereinafter Lee County Engineer’s Email].

[12] Id.

[13] On March 30, 2020, FEMA issued a memorandum extending PA appeal deadlines under 44 C.F.R. § 206.206 to May 30, 2020.

[14] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 406(a)(1)(B), 406(a)(3); 42 U.S.C. §§ 5172(a)(1)(B), 5172(a)(3) (2012); 44 C.F.R. § 206.221(e).

[15] 44 C.F.R. 206.222(b)

[16] 44 C.F.R. § 206.221(e)(3).

[17] 44 C.F.R § 206.221 (e)(2).

[18] PAPPG, at 14.

[19] See Lee County Engineer’s Email.

[20] PAPPG, at 12.