San Mateo Creek Railroad Trestle Bridge

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1203-DR
ApplicantNorth County Transit District
Appeal TypeSecond
PA ID#073-91201
PW ID#96104
Date Signed2003-08-28T04:00:00
Citation: FEMA-1203-DR-CA; North County Transit District, San Mateo Creek Railroad Trestle Bridge; Damage Survey Report (DSR) 96104

Cross-reference: Emergency Work, Environmental Requirements

Summary: Heavy rains on February 23-24, 1998, caused flooding along San Mateo Creek resulting in damage to a railroad trestle bridge owned by the North County Transit District (NCTD). The Federal Emergency Management Agency (FEMA) prepared DSR 96104 for $1,458,625 to restore the bridge. NCTD commenced repairs to the bridge with the authorization of the United States Fish and Wildlife Service (USFWS), but without a permit from the United States Army Corps of Engineers (USACE). NCTD did obtain an After-the-Fact Nationwide Permit Authorization from the USACE for the repair work. NCTD requested and was denied by FEMA a time extension until January 2005 for mitigation and monitoring measures and funding estimated at $180,000. FEMA denied the request on November 21, 2001, because the work proceeded without the proper permits and authorities from regulatory agencies. NCTD submitted its first appeal on February 18, 2002, stating that it conducted the work under the direction of the USFWS, the USACE, and the California Coastal Commission and that extenuating circumstances and unusual project requirements precluded it from obtaining all permits and authorities in advance of beginning repairs. Also, NCTD asserted that FEMA’s denial of the time extension request because the environmental restoration work was associated with an enforcement action, was not supported by regulation. The FEMA Region IX Acting Regional Director denied the appeal because the restoration measures were a procedural result of NCTD’s receiving an After-the-Fact Nationwide Permit Authorization from the USACE and, therefore, were not eligible. OES supports the NCTD’s second appeal for $180,000 and a time extension until January 2005.

Issues: Are additional time and funding eligible?

Findings: Yes. NCTD complied with the environmental requirements.

Rationale: FEMA Policy 9560.1; 44 CFR §206.223(a)(1)

Appeal Letter

August 28, 2003

Mr. Dallas Jones
Governor’s Authorized Representative
Governor’s Office of Emergency Services
P.O. Box 419047
Rancho Cordova, California 95741-9047

Re: Second Appeal – North County Transit District, PA ID 073-91201, San Mateo Creek Railroad Trestle Bridge, FEMA-1203-DR-CA, Damage Survey Report (DSR) 96104

Dear Mr. Jones:

This is in response to your letters dated February 14, 2003, and March 10, 2003, that transmitted the referenced second appeal on behalf of the North County Transit District (NCTD). NCTD is appealing the Federal Emergency Management Agency’s (FEMA’s) decision to deny a time extension for DSR 96104 until January 2005. The total amount requested is $180,000.

Heavy rains on February 23-24, 1998, caused flooding along San Mateo Creek resulting in damage to a railroad trestle bridge owned by the NCTD. FEMA prepared DSR 96104 for $1,458,625 to restore the bridge. NCTD commenced repairs to the bridge with the authorization of the United States Fish and Wildlife Service (USFWS), but without a permit from the United States Army Corps of Engineers (USACE). NCTD did obtain an After-the-Fact Nationwide Permit Authorization from the USACE for the repair work. NCTD requested a time extension until January 2005 for mitigation and monitoring measures estimated at $180,000. FEMA denied the request on November 21, 2001, because the work proceeded without the proper permits and authorities from regulatory agencies.

NCTD submitted its first appeal on February 18, 2002, stating that it conducted the work under the direction of the USFWS, the USACE, and the California Coastal Commission, and that extenuating circumstances and unusual project requirements precluded it from obtaining all permits and authorities in advance of beginning repairs. Also, NCTD stated that FEMA’s denial of the time extension request because the environmental restoration work was associated with an enforcement action was not supported by regulation. The FEMA Region IX Acting Regional Director denied the appeal on October 1, 2002, because the environmental restoration measures were a procedural result of NCTD’s receiving an “After-the-Fact” Nationwide Permit Authorization from the USACE.

NCTD submitted its second appeal on December 19, 2002, stating that FEMA’s determination in the first appeal was both programmatically incorrect and factually inappropriate. Also, NCTD requested that the environmental restoration work be determined eligible in accordance with 44 CFR §206.223(a)(1).

After reviewing all of the documentation in the second appeal, I have determined that NCTD did comply with all of the environmental requirements. The USACE acknowledged in a letter dated March 3, 2002, that the environmental monitoring activities that were imposed are normally imposed whether a “before-the-fact” or an “after-the-fact” permit is approved. Therefore, these activities are eligible because they were required as a direct result of repairing the damaged bridge. Thus, the appeal is approved. By copy of this letter, I ask the Regional Director to prepare a DSR for $180,000 and to grant a time extension until January 2005 to implement my decision.

Please inform NCTD of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security

cc: Jeff Griffin
Regional Director
FEMA, Region IX
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