Council To Consider Hiring Law Firm To Communicate With Federal Officials

(Photo from file:) Beach Nourishment on the north end of Carolina Beach. (Photo from file:) Beach Nourishment on the north end of Carolina Beach.

Council To Consider Hiring Law Firm To Communicate With Federal Officials Featured

By / Local News / Tuesday, 02 March 2021 02:07

By WILLARD KILLOUGH III
Managing Editor

CAROLINA BEACH - The Carolina Beach Town Council will consider hiring a law firm during their upcoming March 9th, meeting to act on their behalf when communicating with the federal government and the U.S. Army on certain issues including dredging the Carolina Beach Lake and federal beach nourishment funding.

The Town continues to explore ways to complete a project started in 2017 to dredge the Carolina Beach Lake to add more capacity for storm water runoff.

The Town of Carolina Beach continues to search for options to dispose of material dredged from the Carolina Beach Lake in 2017 as part of a $2.7 million dollar project to create more capacity in the lake to  hold storm runoff.

Dredging was suspended August 29th, 2017 when the U.S. Army demanded the Town stop hauling dirt to land leased to the Town since the 1970's for a wastewater treatment plant off Dow Road.  The Town was placing the dirt at an unapproved location on the property.

The Army operates the Military Ocean Terminal at Sunny Point (MOTSU) on the west side of the Cape Fear River and they are currently working with neighboring local governments regarding land use in the area. The terminal is one of two large volume deep-water ammunition terminals in the continental United States. Operations take place on the other side of the Cape Fear River in Brunswick County and the "buffer zone" occupies a large portion of Pleasure Island encompassing land in both Carolina Beach and Kure Beach on  the riverside of the Island.

That land is where the Town was depositing the dredge material. The Town previously had permission to dispose of the material in a limited area near the wastewater treatment plant. The Town late expanded that disposal area without getting permission from the Army.

Later, it was determined that some samples showed increased levels of arsenic in the dredged material which in later tests showed below normal levels.

The east side of the lake is more shallow than the western half that was dredged in 2017. The goal of that project was to make the lake deeper to a consistent depth of 6' to 8' feet and improve capacity to hold approximately 16 million gallons of storm water runoff that has traditionally caused flooding of surrounding properties and roadways. The total volume to be removed from the lake was estimated to be approximately 83,000 cubic yards of material. The original completion date for the project was scheduled for February 9th, 2018. When the project was suspended August 29th, the  contractor had removed approximately 30,000 cubic yards of material to the wastewater treatment plant.

The Carolina Beach Lake has historically flooded during major rain events and hurricanes with flood waters impacting large residential and commercial areas.

The overall purpose of the project was to increase capacity in the lake in conjunction with a pumping station and improved drain pipes that can pump water to the ocean and into a ditch that leads to the Cape Fear River prior to a weather event.

During the Town Council's January 12th, 2021 meeting, Town Manager Bruce Oakley explained they had looked at other options that seemed more costly and, "We are in the process of working on a request for proposals on the lake dredge including on how to dredge the lake and the disposal of the spoils (dirt) so we hopefully we will have something put out real soon and we can see what we get. We are not exactly sure but we are going to request some creative proposals so that will be out there very shortly."

On another issue, federal funding for beach nourishment projects. President Donald Trump signed the omnibus spending bill on Dec. 27th which was supposed to include funding for local beach renourishment projects in the coming years. Carolina Beach Mayor Leanne Pierce said on Monday January 25th, local leaders were surprised to find out that federal funding was actually not appropriated by Congress and they are seeking answers as to what happened.

In July of 2020, the House Transportation and Infrastructure Committee approved a bipartisan ports and water resources development bill that included authorization for continued federal support of beach renourishment projects in Wrightsville, Carolina and Kure Beaches.  The bill was supposed to authorize $53.788 million in federal funding for use over the remaining lifetime of the Wrightsville Beach renourishment project, which would continue until 2036.

According to a release by Republican Congressman David Rouzer earlier this month, "The bill also includes a 15-year extension of the beach renourishment project at Carolina and Kure Beaches.  A 50-year authorization for the project had expired in 2012 and federal participation has been operating on short-term extensions since then.  The bill authorizes $24.205 million in federal funding for the 15-year extension, which will begin in 2022."

While the Town deals with solving the lake dredging project and where to take the remaining material to be removed from the lake as well as the materials that still remain on Army property, they also need help securing federal funding from Congress to fund an upcoming beach nourishment project.
The cost of such projects are split among federal, state and local dollars.

Historically, such local projects cost is shared with the Federal Government paying 65% and the State of North Carolina and local governments splitting the remaining 35%. A tax on hotel, motel, and vacation rental accommodations funds the local government portion of the project cost. Both Towns are on a three-year renourishment cycle. Under the latest legislation, the cost for Carolina Beach would have been split 50% local dollars and 50% federal dollars with work originally expected to take place from November 2021 to April 2022.

On Tuesday January 26th, Carolina Beach Town Manager Bruce Oakley explained, "We found out that our federal funding for our upcoming nourishment project was not approved in this year's appropriation bill. It was a surprise to everyone. We are working closely with the County and our municipal partners to come up with options. Our first option is to find some other federal funding and complete the project as scheduled. Otherwise, we will have to look for other methods of funding (state, county, local funding, etc.)."

The Council is set to discuss a contract with the law firm Ward & Smith, PA during their March 9th, meeting.

The Attorney with Ward & Smith is former Congressman Mike McIntrye (Democrat who served from 1997 - 2015). McIntyre successfully worked to secure beach nourishment funding for area beaches in New Hanover County during his time in Congress.

In a letter to the Town, McIntyre explained, "We have agreed to advise and assist you with governmental matters and legal issues that arise, and the Town of Carolina Beach hereby engages Ward and Smith, P.A. to perform the following services in accordance with the terms and conditions set forth in this agreement: (1) assisting the Town of Carolina Beach in obtaining permission to place spoils from Carolina Beach Lake on property used and/or owned by Military Ocean Terminal Sunny Point, Department of the Army, Department of Defense of the United States Government, and assisting the Town of Carolina Beach with obtaining potential financial assistance for this project; (2) assisting the Town of Carolina Beach in strategic discussions with the Department of the Army and the federal government, as appropriate, regarding the expansion of the Town of Carolina Beach's water and wastewater treatment infrastructure for both current and future needs; (3) assisting the Town of Carolina Beach in obtaining federal governmental assistance and project management regarding federal issues related to beach renourishment efforts at Carolina Beach; and (4) assisting the Town of Carolina Beach with economic development efforts involving up to three potential infrastructure projects associated with federal infrastructure stimulus legislation that may be proposed."

He explained, "The Town of Carolina Beach acknowledges and agrees that Ward and Smith P.A. does not have control over third-party decision makers, and that Ward and Smith, P.A. makes no representations, warranties or guarantees that it can achieve any particular results. Ward and Smith, P.A. shall act in good faith and with the necessary due diligence in connection with its performance of the services described herein. Two meetings with the Town of Carolina Beach (whether in person or virtually) and two trips to Washington, DC (in person or virtually, based upon certain contingencies otherwise allowed or permitted by law during an emergency
or as otherwise mutually agreed upon by the parties), as well as a monthly status report, are included in the services to be provided. Our work for this engagement will be primarily on the federal level. Any work on the state level will be subject to mutual agreement, so long as such work on the state level does not conflict with Ward and Smith, P.A.'s work on behalf of New Hanover County. As the need arises for specialized assistance, such as grant writing and/or legislative monitoring/research, then fees and costs incurred for such services will be billed separately to the Town of Carolina Beach. It is understood that The Ferguson Group of Washington, DC, will be assisting our firm on your behalf in this capacity."

McIntyre explained, "We have not identified any conflicts of interest with our other clients. However, it is possible that conflicts will occur, especially because of the unpredictability of legislative policy and politics. In such cases, we will disclose the conflict, or potential conflict, and the Town of Carolina Beach
will need to retain its own independent legal counsel for that matter as well as make a good faith effort to waive any conflict that is waivable under the North Carolina State Bar's Rules of Professional Conduct."

He explained, "The retainer for services will be $3,750 for work related to items (1) and (2) abovedescribed, and $7,500 for items (3) and (4) above-described, for a total monthly retainer of $11,250. Unless either of us terminates this engagement, this retainer is effective as of March 1, 2021 and remains in place through December 31, 2021. Out-of-pocket expenses and costs relating to our representation are not included in the monthly fee, but will be billed separately as incurred. The monthly retainer in any event will be the minimal fee for our services rendered during any portion of the month for which is paid."

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