Public Interest

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of September 23, 2022, to November 4, 2022, Hurricane Ian caused damage in the state of Florida.[1] The Colonial Country Club Community Development District (Applicant), located in Lee County, claimed that high winds during the disaster event resulted in downed trees, branches, and debris that fell into its stormwater management system (system), which necessitated immediate removal to protect improved private property from the potential risk of flooding. The Applicant requested Public Assistance (PA) funding to perform the work. FEMA prepared Grants Manager Project (GMP) 716055 as a Category D (Water Control Facilities) project to document the Applicant’s claim.

On April 25, 2023, FEMA sent the Applicant an email seeking details regarding public access to the community and the system. The Applicant replied, stating that the general public has access to the community when a driver’s license is provided upon request to enter. The Applicant stated that it owns and maintains the system, which benefits the public by managing stormwater as it connects to the larger, county-wide stormwater system.  On April 27, 2023, FEMA drove to the Applicant’s community but was turned away by the security guard who stated that the community was private and not accessible to the public.[2]

On December 19, 2023, FEMA issued a Determination Memorandum, finding that the project was not eligible for PA funding. FEMA explained that the Applicant was a restricted, gated community, not allowing access to the general public, and its stormwater management system did not provide a service to the general public. FEMA added that the Applicant did not demonstrate that it was legally responsible to perform the work or that the debris caused an immediate threat.

First Appeal

On February 13, 2024, the Applicant submitted a first appeal, asserting that the system served the general public and not just the residents of its community. The Applicant explained that the system provided flood mitigation and was interconnected with neighboring communities’ stormwater systems as part of the network that serves southwest Florida and was permitted by the South Florida Water Management District. The Applicant added that there was no reason that the system should be open to the general public because it did not provide a personal service for which the general public would have any need or desire to access it. The Applicant clarified that the amount in dispute was $15,600.00. The Applicant added that it, and not the City of Fort Myers, was legally responsible to perform the work. With its appeal, the Applicant provided proof of ownership of the system, maintenance history, and a discharge permit from the Florida Department of Environmental Protection. On April 9, 2024, the Florida Division of Emergency Management Agency (Recipient) transmitted the appeal to FEMA, expressing its support.

On December 16, 2024, the FEMA Region 4 Regional Administrator denied the first appeal, finding that the system was not open to the general public, nor did it provide a service to the general public; thus, it was not eligible for PA funding. FEMA explained that although the system may have an indirect impact on a larger regional stormwater system, the system did not provide a critical service to the general public. Instead, FEMA stated that the system provided a service specific to the Applicant’s private community.

Second Appeal

In a letter dated February 14, 2025, the Applicant submitted a second appeal, consisting of its first appeal submission with a cover letter emphasizing that the system should be eligible. The Applicant explains that the system is part of a county-wide, public stormwater system created to maintain and protect Lee County from flooding. The Applicant reiterates that the system serves the general public but is not available to the general public for access, as with any critical public safety system, so openness to the general public should not be a consideration for eligibility. On March 12, 2025, the Recipient transmitted the appeal to FEMA, expressing its support.

Discussion

FEMA may provide funding to a local government for the repair of a public facility damaged by a major disaster.^[3] Local government includes special districts, such as a Community Development District (CDD).^[4] Eligible public facilities include those used for flood control, irrigation, reclamation, sewage treatment and collection, water supply and distribution, or watershed development.[5] To be eligible, a CDD must own and be legally responsible for maintenance, and operation of an eligible facility that is open to and serves the general public.^[6] When a facility maintained by a CDD is not open to the general public or does not provide a service to the general public, the facility is ineligible.^[7]

Here, the Applicant requests $15,600.00 in PA to scope and clean its system. The Applicant acknowledges that the system is not open to the public. Since the system is not open to the general public, FEMA considered whether the system provides a service to the general public.

The Applicant claims the system serves the general public because it provides flood management as part of the interconnected, county-wide stormwater system. However, the record does not show that the system is a flood control, irrigation, reclamation, sewage treatment and collection, water supply and distribution, or watershed development facility that provides a service to the general public.[8] Rather, the system only indirectly or tenuously impacts the regional stormwater management and groundwater systems as part of the initial development of the community and instead manages stormwater as a service specific to the Applicant’s private community.[9] In this case, the system does not satisfy the criterion of serving the general public.[10]

Conclusion

The Applicant has not demonstrated that the system is open to the general public or provides a service to the general public; thus, the system is not eligible for PA. Therefore, this appeal is denied.