Washington County commissioners vote to file FEMA appeal; retain Baker Donelson for initial work

Washington County commissioners voted to begin a formal appeal of FEMA's determination memorandum that de-obligated approximately $55 million from the county's road-project grants and agreed to retain outside counsel to prepare the first appeal.

The move followed a staff briefing and legal presentations explaining the timeline and potential costs. County leaders approved retaining Baker Donelson (Wendy Eller, counsel) to assist with the initial appeal work and allowed the county's team to proceed with the appeal filing within the 60-day window specified by FEMA.

FEMA's determination memorandum de-obligated a large portion of the county's Michael-era road program, and county staff described parallel negotiations that continue with federal and state officials. County Administrator Jeff Massey told the board an appeal must be filed by mid-April to preserve the county's right to pursue review; commissioners agreed to proceed.

Wendy Eller of Baker Donelson told the board her firm works frequently on FEMA appeals and arbitrations and advised the county on options. Eller said initial appeal work is hourly but that she included a proposed not-to-exceed cap of $30,000 for the first appeal effort; she estimated arbitration work, if required later, could approach a not-to-exceed $150,000 figure. The county discussed which costs would be potentially reimbursable by FEMA: costs of preparing a successful first appeal can be allowable management costs if the appeal succeeds, while arbitrations's costs are generally not reimbursable.

Attorney Jeff Garrett (outside counsel assisting the county) noted that work already completed on some roads represents millions of dollars in potential eligible costs and that, if the county did not appeal, the opportunity to recover funding for unfinished phases would be lost.

After discussion, Commissioner Griffin moved to initiate the first appeal; the board voted in favor and then voted to retain Baker Donelson to assist with appeal preparation and early work. The board gave staff authority to execute the engagement consistent with the not-to-exceed amounts discussed and to coordinate Baker Donelson's work with local counsel preparing the factual record.

The board and speakers emphasized that pursuing the appeal does not foreclose continued negotiations with FEMA or the state and that the board could stop the appeal later if a satisfactory settlement is reached.

The county manager and commissioners also discussed the program-level consequences of the determination memorandum, including the status of 19 road zones where work was started or planned and an engineer's estimate of roughly $15.9 million to finish projects in the originally anticipated footprint. Staff said roughly $8.16 million represents roads on which some work was started; the remainder are routes where no construction occurred. Attorneys and staff warned that failing to appeal would likely forfeit eligible funding tied to the program.

The board directed staff to coordinate with Baker Donelson and local counsel, prepare the factual appeal submission, and file within the FEMA deadline.

Provenance: first references to the FEMA determination and appeal discussion appear during agenda item 6.8 and in public comment that followed; the retention discussion and vote appear later during the same item.