By Dale Martin
April 14, 2022
As noted earlier this week, the nearly six-year frustrating struggle with the Federal Emergency Management Agency (FEMA) to secure reimbursement has reached its likely and successful end.
Hurricane (actually by then diminished to a Tropical Storm) Matthew hit the City in early October 2016. Although private and public property damage was otherwise minimal, the wind and waves generated by the storm destroyed the outer dock (attenuator) at the City Marina. The saga with FEMA began shortly thereafter in December.
The federal government designated Hurricane Matthew as DR-4283. Although Hurricane Matthew was my first FEMA experience with a Florida hurricane, I had previously worked with FEMA following two hurricanes in Connecticut (Hurricanes Irene  and Sandy ). With the leadership and experience of other senior City staff, the City was administratively well-prepared to work with FEMA officials.
FEMA’s first specialist conducted his damage assessment over the course of several months in early 2017. His efforts culminated with the development of a project worksheet entitled PW 831: he declared the Marina eligible for replacement because the cost of repairs exceeded fifty percent of the value of the docks. As part of his review and final analysis, he obtained a repair estimate from a contractor. His estimated replacement costs for the entire attenuator was over $6 million. Subsequently, a FEMA official and I signed PW 831 (October 2017) which formally acknowledged that the reconstruction project would be eligible for 75% federal reimbursement.
While working with FEMA officials, the City also had to work with the United States Army Corps of Engineers (USACE). The USACE had guidelines stipulating that no facilities could be located within one hundred feet of the federal navigation channel (despite its lack of use in nearly forty years). The City’s attenuator was located much closer- the northern attenuator was mere feet from the channel boundary- exactly where is was originally constructed with USACE approval forty years ago. In order to rebuild the attenuator in the same location, the City was required to secure an exemption from the USACE. The exemption process was nearly as long and frustrating with the USACE as with FEMA, but because of regional relationships developed with key people and agencies, the needed exemption was obtained (but with the caveat that no similar exemption would be granted again, which has led to the City’s current effort to realign the federal channel- another story for another day).
With the authorization of the USACE, the City begin demolition and reconstruction of the southern attenuator in 2018.
FEMA relies significantly upon a cadre of experienced professionals hired contractually on an as-needed basis: the agency does not have a permanent robust field staff to respond to disasters. This leads to frequent turnover as contracts expire and other disasters occur. Such was the case with our project. In 2018, another FEMA specialist relieved and reviewed the previous efforts.
Due to the USACE permitting challenges, the original PW 831, which encompassed the entire attenuator, was separated by FEMA into two projects: PW 831 was reduced to the southern portion of the attenuator and PW 1085 became the designation for the northern attenuator. The second FEMA specialist revised the original $6 million estimate for the entire attenuator to now reflect a $6.4 million estimate for only the southern attenuator and an additional $1.5 million.
Reconstruction efforts continued, but in May 2019, FEMA officials began to question the original eligibility of the replacement instead of less expensive repairs. The basis for this re-analysis apparently rested on the contractor’s repair estimate prepared for the initial FEMA specialist. On the basis on that document, FEMA reduced the authorized reimbursement by ninety percent to approximately $600,000 for the southern attenuator.
Since the contractor’s repair estimate had never been provided to the City (it was prepared at the request of FEMA), the City requested a copy of the document. Stunningly, on a teleconference (that included Congressman John Rutherford as a participant), FEMA officials announced that they no longer had the document- it had been destroyed by a FEMA employee. When FEMA itself asked for a replacement copy from the contractor, the contractor indicated that since the repair project had not been awarded, the documents related to that project were deleted.
The City formally appealed the FEMA reduction, and, following the failure of FEMA to respond in a timely manner (180 days), the City filed a request for arbitration as permitted under federal regulations. With the assistance of specialized counsel, the City ultimately prevailed (FEMA conceded before the actual arbitration hearing was conducted). After additional months of paperwork, the final reimbursement from FEMA (and an additional amount from the Florida Department of Emergency Management; FDEM), the total reimbursement to the City, six years later, is approximately $7.5 million.
Thank you to the (several) City Commissions for their support throughout this process during which I had the utmost confidence that the City would eventually prevail. Other notable thanks are appropriate for Congressman Rutherford and his staff; Mr. Ernie Abbott and Ms. Erin Greten of Baker, Donelson, et. al who championed the City’s arbitration effort; FDEM staff; and City staff, especially Ms. Pauline Testagrose. Well done.