Elkhorn Road
Appeal Brief
Appeal Letter
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 10.8(c)(2); 44 CFR Part 9; 44 CFR 206.226;
April 20, 2001
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
PO Box 419023
Rancho Cordova, CA 95741-9023
Re: Second Appeal; Monterey County; FEMA-DR-1203-CA; Elkhorn Road; DSRs 03612 and 03197
Dear Mr. Christian:
This is in response to your September 18, 2000, letter transmitting Monterey County's (applicant's) above referenced second appeal. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) decision to de-obligate $30,533 of funding for Damage Survey Report (DSR) 03612. This DSR was prepared to repair a 350-foot long and 30-foot wide section of Elkhorn Road which traverses a wetland area. The applicant is also appealing FEMA's decision to deny supplemental funding of $9,430 for a Biological Assessment. The actual cost of the road repair and Biological Assessment is $37,556.
On July 10, 1998, FEMA initially approved funding for the road repair project, without performing a wetlands review in accordance with Executive Order 11990. Following the applicant's submission of a supplemental funding request for $9,430 for the cost of a Biological Assessment of the project, FEMA determined that the applicant performed an improved project without notifying the State or FEMA. Because the project was performed without a FEMA 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 dated August 31, 1999, the applicant asserted that the completed road repair did not exceed FEMA's approved scope of work. The applicant and the State stated that the road repair was not an improved project and FEMA should restore funding for the project. In the first appeal response dated April 28, 2000, 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 a violation of the Clean Water Act. In addition, the Regional Director determined that the applicant's Biological Assessment was performed after the road repair work was completed, which prevented FEMA from complying with Executive Orders 11988 and 11990 for floodplain and wetland evaluations.
By a letter dated September 18, 2000, the State transmitted the applicant's second appeal. Both the State and the applicant assert that the road repair was an emergency protective measure which would qualify for a statutory exclusion from the National Environmental Policy Act (NEPA). Therefore, they request that FEMA fund the project.
Prior to funding a project, FEMA must review the project in accordance with all applicable federal environmental statutes. Even if the project is an emergency protective measure that is statutorily excluded from a NEPA review, FEMA must still comply with the requirements of the other environmental laws and executive orders, such as the Clean Water Act and the Executive Orders for floodplains and wetlands. However, in this instance, FEMA did not perform the appropriate reviews prior to the approval of funding.
After a careful review of this project, I have determined that the applicant repaired the road essentially to its pre-disaster condition as described in DSR 03612. Therefore, the road repair project is statutorily excluded from NEPA review in accordance with Section 316 of the Stafford Act (42 U.S.C. 5159). I have also consulted with USACE and determined that the repair work was permitted under USACE Nationwide Permit Number Three, which applies to the repair of existing facilities in wetlands. However, if the applicant has not yet done so, it should notify USACE of the completion of this project. The applicant should contact the Regulatory Branch of the USACE San Francisco District at (415) 977-8464 for information on notification requirements.
Finally, I have determined that FEMA Region IX's "Final Programmatic Environmental Assessment for Typical Recurring Actions Resulting from Flood Disasters in California as Proposed by the Federal Emergency Management Agency," dated April 16, 1998, have substantially fulfilled the floodplain and wetlands review requirements in accordance with Executive Orders 11988 and 11990, respectively.
I have determined that the road repair project and the Biological Assessment performed by the applicant are eligible for Public Assistance funding. Prior to funding approval, the applicant must provide documentation to the Regional Director demonstrating that the USACE has been notified of the completion of the project. Upon submittal of this documentation, the Regional Director shall prepare a DSR for $37,556, for the actual cost of the road repair and Biological Assessment.
The appeal is approved. Please inform the applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Karen E. Armes
Acting Regional Director
FEMA Region IX
Appeal Brief
| Disaster | FEMA-1203-DR |
| Applicant | Monterey County |
| Appeal Type | Second |
| PA ID# | 053-00000 |
| PW ID# | 03612 and 03197 |
| Date Signed | 2001-04-20T04:00:00 |
Cross Wetland; Environmental Review; NEPA; Clean Water Act; USACE Nationwide
Reference: Permit; Executive Orders 11988 and 11990; Biological Assessment; Programmatic Environmental Assessment
Appeal Letter
April 20, 2001
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
PO Box 419023
Rancho Cordova, CA 95741-9023
Re: Second Appeal; Monterey County; FEMA-DR-1203-CA; Elkhorn Road; DSRs 03612 and 03197
Dear Mr. Christian:
This is in response to your September 18, 2000, letter transmitting Monterey County's (applicant's) above referenced second appeal. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) decision to de-obligate $30,533 of funding for Damage Survey Report (DSR) 03612. This DSR was prepared to repair a 350-foot long and 30-foot wide section of Elkhorn Road which traverses a wetland area. The applicant is also appealing FEMA's decision to deny supplemental funding of $9,430 for a Biological Assessment. The actual cost of the road repair and Biological Assessment is $37,556.
On July 10, 1998, FEMA initially approved funding for the road repair project, without performing a wetlands review in accordance with Executive Order 11990. Following the applicant's submission of a supplemental funding request for $9,430 for the cost of a Biological Assessment of the project, FEMA determined that the applicant performed an improved project without notifying the State or FEMA. Because the project was performed without a FEMA 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 dated August 31, 1999, the applicant asserted that the completed road repair did not exceed FEMA's approved scope of work. The applicant and the State stated that the road repair was not an improved project and FEMA should restore funding for the project. In the first appeal response dated April 28, 2000, 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 a violation of the Clean Water Act. In addition, the Regional Director determined that the applicant's Biological Assessment was performed after the road repair work was completed, which prevented FEMA from complying with Executive Orders 11988 and 11990 for floodplain and wetland evaluations.
By a letter dated September 18, 2000, the State transmitted the applicant's second appeal. Both the State and the applicant assert that the road repair was an emergency protective measure which would qualify for a statutory exclusion from the National Environmental Policy Act (NEPA). Therefore, they request that FEMA fund the project.
Prior to funding a project, FEMA must review the project in accordance with all applicable federal environmental statutes. Even if the project is an emergency protective measure that is statutorily excluded from a NEPA review, FEMA must still comply with the requirements of the other environmental laws and executive orders, such as the Clean Water Act and the Executive Orders for floodplains and wetlands. However, in this instance, FEMA did not perform the appropriate reviews prior to the approval of funding.
After a careful review of this project, I have determined that the applicant repaired the road essentially to its pre-disaster condition as described in DSR 03612. Therefore, the road repair project is statutorily excluded from NEPA review in accordance with Section 316 of the Stafford Act (42 U.S.C. 5159). I have also consulted with USACE and determined that the repair work was permitted under USACE Nationwide Permit Number Three, which applies to the repair of existing facilities in wetlands. However, if the applicant has not yet done so, it should notify USACE of the completion of this project. The applicant should contact the Regulatory Branch of the USACE San Francisco District at (415) 977-8464 for information on notification requirements.
Finally, I have determined that FEMA Region IX's "Final Programmatic Environmental Assessment for Typical Recurring Actions Resulting from Flood Disasters in California as Proposed by the Federal Emergency Management Agency," dated April 16, 1998, have substantially fulfilled the floodplain and wetlands review requirements in accordance with Executive Orders 11988 and 11990, respectively.
I have determined that the road repair project and the Biological Assessment performed by the applicant are eligible for Public Assistance funding. Prior to funding approval, the applicant must provide documentation to the Regional Director demonstrating that the USACE has been notified of the completion of the project. Upon submittal of this documentation, the Regional Director shall prepare a DSR for $37,556, for the actual cost of the road repair and Biological Assessment.
The appeal is approved. Please inform the applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Karen E. Armes
Acting Regional Director
FEMA Region IX
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