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Second Appeal Summary
PA ID# 053-00000; Monterey County
DSR ID# 03612 and 03197; Elkhorn Road
Citation: FEMA-1203-DR-CA; Monterey County; Elkhorn Road; DSRs 03612 and 03197
Cross Wetland; Environmental Review; NEPA; Clean Water Act; USACE Nationwide
Reference: Permit; Executive Orders 11988 and 11990; Biological Assessment; Programmatic Environmental Assessment
Summary: The El Ni?o storms of 1998 caused damage to a 350-foot long and 30-foot wide section of Elkhorn Road, which is located in a wetland. FEMA initially approved funding of $30,533 for the road repair project, prior to performing an environmental review. Following the applicant's submission of a supplemental funding request for $9,430 for the cost of a Biological Assessment, FEMA asserted that the subgrantee raised and widened the road beyond its pre-disaster condition. FEMA determined that the applicant performed an improved project without notifying FEMA or the State. Because the improved project was performed without the required environmental review and approval, FEMA denied the request for supplemental funding and de-obligated the original DSR amount of $30,533. In its first appeal letter, the applicant asserted that the completed road repair did not exceed FEMA's approved scope of work. Accordingly, the applicant and the State contended that the road repair was not an improved project and that FEMA should restore funding for the project. In the first appeal response, the Regional Director agreed that the repair work was within the original approved scope of work for the DSR and, therefore, did not constitute an improved project. However, the Regional Director denied the appeal and upheld the de-obligation on the basis that the applicant did not receive a U.S. Army Corps of Engineers (USACE) permit for the work, which was in violation of the Clean Water Act. In addition, the applicant performed a Biological Assessment after the road repair work was completed, which prevented FEMA from complying with Executive Orders 11988 and 11990 for floodplain and wetland evaluations. In the second appeal, the applicant asserts that the road repair was an emergency protective measure which would qualify for a statutory exclusion from NEPA. Based on that recommendation, the State and applicant assert that FEMA could then fund the project.
Issues: Is the road repair and Biological assessment eligible for Public Assistance funding?
Findings: Yes. FEMA should have performed an environmental review prior to the approval of funding for the project. Following the second appeal submittal, FEMA has reviewed this project and determined that the repair work is statutorily excluded from NEPA review. In addition, the repair work is permitted under the USACE Nationwide Permit Number Three. All other environmental compliance requirements, including the floodplain and wetland reviews were substantially completed by the applicant's Biological Assessment and FEMA's Programmatic Environmental Assessment.
Rationale: Stafford Act Section 316; 44 CFR