Crooked Creek Culvert

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1445-DR
ApplicantAlaska Department of Transportation and Public Facilities
Appeal TypeSecond
PA ID#000-U0291-00
PW ID#41
Date Signed2005-08-16T04:00:00
Citation: FEMA-1445-DR-AK; Alaska Department of Transportation and Public Facilities, Crooked Creek Culvert, PW 41

Cross
Reference: Code and Standards, Permitting Process, Improved Projects

Summary: Severe winter storms, flooding, coastal erosion and tidal surge caused damages to Johnson Lake Road at the Crooked Creek crossing. Damage to the road included the washout of two eight-foot culverts. FEMA prepared Project Worksheet (PW) 41 to document eligible damages and provide a scope of work to replace the two culverts. PW 41 included mitigation measures that increased the culvert size from eight feet to ten feet in diameter. PW 41 was obligated on February 4, 2004, for $215,094. The Applicant requested a permit from the Alaska Department of Natural Resources (ADNR) to replace the culverts. Authorization was required because the design of all new culverts must meet the fish passage requirements detailed in a Memorandum of Agreement between the Alaska Department of Fish and Game and the Applicant. ADNR denied the request on April 16, 2004, because the placement of culverts would alter fish spawning habitat. The Applicant submitted a first appeal requesting the costs of design and construction of a spanning bridge on the basis that ADNR denied the permit for reconstructing the culverts. The Applicant contends that Alaska Statutes that detail the permitting process constitutes an eligible standard that requires the upgrade from culverts to a spanning bridge. The Regional Director denied the first appeal stating that the permitting process is a discretionary process and not the same as a design standard. The Applicant’s second appeal is requesting funding for the construction of a spanning bridge as an eligible code and standard upgrade.

Issues: (1) Is the replacement of culverts with a spanning bridge an eligible code and standard upgrade?

Findings: (1) No. The upgrade from culverts to a spanning bridge is required by a discretionary permitting process and not a written and formally adopted standard.

Rationale: 44 CFR 206.226(d) Standards

Appeal Letter

August 16, 2005

James F. Butchart
State Coordinating Officer
State of Alaska
Department of Military and Veterans Affairs
Division of Homeland Security and Emergency Services
P.O. Box 5750
Fort Richardson, AK 99505-5750

Re: Second Appeal – Alaska Department of Transportation and Public Facilities, PA ID 000-U0291-00, Crooked Creek Culvert
FEMA-1445-DR-AK, Project Worksheet (PW) 41

Dear Mr. Butchart:

This is in response to your letter dated February 10, 2005, regarding the referenced second appeal on behalf of Alaska Department of Transportation and Public Facilities (Applicant). The appeal disputes the basis of FEMA’s eligibility determination and seeks funding for work associated with the construction of a spanning bridge in lieu of culverts on Johnson Lake Road at the Crooked Creek crossing.

As explained in the enclosed appeal analysis, I have determined that the upgrade from a two-culvert system to a spanning bridge is not an eligible code and standard upgrade. The Applicant has not provided documentation of a written and formally adopted standard that specifies an upgrade from culverts to a spanning bridge when all stream crossings are being constructed or reconstructed. Rather, the upgrade is required by a discretionary permitting process that may or may not authorize culverts or bridges, “depending on extenuating circumstances, no practicable alternative and a significant mitigation offer.” The project is eligible as an Improved Project where funding is capped at the estimated cost of the original repairs defined in PW 41. No additional funding is eligible. The Applicant’s appeal is denied.

Please inform the Applicant of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.

Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
Enclosure

cc: John Pennington
Regional Director
FEMA, Region X

Appeal Analysis

BACKGROUND

As a result of severe winter storms, flooding, coastal erosion and tidal surge that occurred over the period of October 23 through November 12, 2002 (FEMA-1445-DR-AK, declared December 4, 2002), the Alaska Department of Transportation and Public Facilities (Applicant) sustained damage to Johnson Lake Road at the Crooked Creek crossing. Damage to the road consisted of the washout of two 60-foot long and eight-foot diameter culverts. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for repair of disaster-related damages.

Project Worksheet (PW) 41 was written to restore the original pre-disaster condition of the damaged road by replacing the two washed out culverts. As part of the repair and restoration project, effective mitigation measures were applied to the repairs that allowed for the two new culverts to be increased to ten feet in diameter. PW 41 was obligated on February 4, 2004, in the amount of $215,094.

During the permitting process, the Applicant, in a memorandum dated July 17, 2003, indicated that the design of all new culverts must meet the fish passage requirements per the Memorandum of Agreement (MOA) between the Alaska Department of Fish and Game and the Applicant for the Design, Permitting, and Construction of Culverts for Fish Passage effective August 7, 2001. The Applicant indicated per this memorandum that if the design does not meet the fish passage MOA, a structure that spans the stream must be used for fish passage.

Through Alaska Statute (AS) 41.14.870 and an Alaska Executive Order 170, the State of Alaska Department of Natural Resources (ADNR) holds responsibility for the permitting function for fish habitat protection. In memorandums dated September 10 and October 10, 2003, ADNR indicated that the culvert could be designed to accommodate fish passage in accordance with the MOA, but that the stream reach is a salmon spawning area. In both memorandums, the ADNR states that the culverts are not appropriate drainage structures in salmon spawning areas, and they “suggest” and “recommend” a clear span bridge be constructed. It is noted that the ADNR does not provide specific criteria upon which this “recommendation” is made, nor does the ADNR specifically “require” or “mandate” that the clear span bridge be the method of construction.

On April 16, 2004, ADNR denied the permitting request, citing AS 41.14.870(a), under which Crooked Creek had been specified as being important for the spawning, rearing, or migration of anadromous fish. The ADNR denial letter stated the following:

“The placement of culverts within this portion of Cooked Creek will alter spawning habitat within this stream reach. The placement of culverts within salmon spawning areas is not typically authorized by the Office of Habitat Management and Permitting unless there are extenuating circumstances, no practicable alternative and significant mitigation offered to compensate for the unavoidable loss of spawning habitat.” (Emphasis added)

ADNR remained open to discussing alternatives to accommodate a crossing structure that would not adversely impact the salmon spawning habitat, but as stated above, did not mandate a specific method of reconstruction.

First Appeal

The Applicant submitted a first appeal of PW 41 on April 16, 2004. The appeal was transmitted and supported by the State of Alaska Division of Homeland Security and Emergency Management (State) in a letter dated June 15, 2004. The Applicant contended that the eligible scope of work should cover the costs of design and construction of a bridge at the Johnson Lake Road/Crooked Creek crossing as the ADNR denied the permit for reconstructing the culverts. The Applicant cited various Alaska Statutes including AS 41.14.020, AS 41.14.050, AS 41.14.840, and AS 41.14.870 for the permitting process, asserting that these statutes constitute an eligible code and standard that requires construction of the bridge. A copy of these statutes is provided in Attachment A.

The Regional Director denied the first appeal in a letter dated September 17, 2004, stating that the ADNR permitting process is not the same as a design standard in that it does not provide specific engineering design criteria, and even if it could be considered a code or standard, the permitting process allows for discretion by the permitting officer and other factors as each set of proposed plans are reviewed for permits. Therefore, it was concluded that construction of the bridge would be an improved project and FEMA funding would be limited to restoration of the original facility to its pre-disaster conditions plus any eligible and cost-effective mitigation work.

Second Appeal

On December 13, 2004, the Alaska Department of Law (ADOL), acting on behalf of the Applicant, submitted a second appeal of PW 41. The second appeal consists of the same information as the first appeal, but adds an ADOL supplementary Appeal Brief dated January 31, 2005. The Appeal Brief provides an argument for the construction of a spanning bridge as an eligible code and standard upgrade in response to the first appeal decision. The State transmitted and supported the Applicant’s appeal in a letter dated February 8, 2005.

DISCUSSION

The primary issue of the Applicant’s second appeal is FEMA’s determination that replacing the damaged culverts with a bridge is not required by an eligible code or standard. The Applicant asserts that AS 41.14.870 is the same as a code or standard, that it meets the five criteria for eligible codes, and that it requires that a bridge be constructed in lieu of installing the culverts.

As stated earlier in this analysis, AS 41.14.870 (see Attachment A) provides the ADNR the responsibility for the permitting function for fish habitat protection. The Applicant asserts that based on the terms of this statute, and ADNR’s permit denial for the replacement of the culverts, that the construction of the bridge is required. However, neither the reading of this statute, nor the documentation provided in the Applicant’s appeal letter, demonstrates the criteria for determining that a bridge must be constructed in lieu of the culverts. It is further noted that the ADNR did not “require” or “mandate” that a bridge be constructed, only “suggested” and “recommended” this method of construction.

Title 44 of the Code of Federal Regulations (CFR) Section 206.226(d) allows an Applicant the opportunity to upgrade their facilities in accordance with current codes and standards. The intent of this regulation is to provide measurable engineering and design criteria for which the facility repair or reconstruction must adhere to. To be an eligible code, these statutes would need to provide specific engineering design standards or performance criteria that would be required to be followed or measured in order to obtain the appropriate permits within the text of the code. While we do not disagree that the statute provides the ADNR the responsibility to issue permits as they pertain to the protection of fish, this statue only provides for the duties, responsibilities, and authorities of the Commissioner. The terms of the statute do not provide any specific criteria upon which the evaluation of the method of construction is to be made, nor does it provide the authority to mandate any specific method of construction. To be an eligible code, these statutes would need to provide specific engineering design standards or performance criteria that would be required to be followed or measured in order to obtain the appropriate permits within the text of the code. In the absence of such specific criteria, the statute is found to not be a code or standard as intended for determining eligible funding within tcue was to be considered a code or standard, it was noted that the statute allows application decisions to be made at the discretion of the permitting authority on a case-by-case basis upon review of each set of plans and specifications submitted by an owner. As such, this is a discretionary decision of the permitting agency and not consistent with the expected enforcement of a written code or standard. The ADOL disagrees that the issue of discretion is a viable component of the FEMA regulation. However, criteria four of 44 CFR 206.226(d) states that the code or standard must apply uniformly to all facilities of the type being repaired within the applicant’s jurisdiction. In order to ensure the code or standard is applied uniformly, there can be no discretion in its application. Accordingly, the code or standard cannot allow selective application; it cannot be subject to discretionary enforcement by public officials; it must be applied regardless of the source of funding for the upgrade work; and it cannot be applied selectively based on the availability of funds. The statutes referenced by the Applicant include phrases such as “if the commissioner considers it necessary” (AS 16.05.840), and “unless the commissioner finds the plans and specifications insufficient” (AS 16.05.870). These phrases do not provide sufficient criteria upon which the commissioner would make his determination, thus leaving the determination to the commissioner’s judgment, or discretion.

Further, it is noted that the ADNR denied the permit for the reconstruction of the culverts based on Crooked Creek being “important for the spawning, rearing, or migration of anadromous fish” and referenced AS 41.14.870(a) as their authority to deny the permit. Based on the chronology of events referenced in the Applicant’s first appeal, AS 41.14.870 became law in 1982. In 1984, the Department of Fish and Game classified Crooked Creek an important anadromous fish stream. These two occurrences set in place the criteria upon which the Applicant is asserting that the culverts cannot be constructed. Yet, in 1986, the subject culverts were constructed. This contradicts the Applicant’s assertion that the stream designation and the statute would prohibit the culvert construction.

Improved Project

Consistent with the original determination, it is found that the construction of the bridge would constitute an “improvement,” and thus would be eligible as an Improved Project as provided and approved through means of PW 41.

CONCLUSION

The Applicant has not provided documentation of a written and formally adopted standard that specifies an upgrade from culverts to a spanning bridge when all stream crossings are being constructed or reconstructed. Rather, the upgrade is required by a discretionary permitting process that may or may not authorize culverts or bridges, “depending on extenuating circumstances, no practicable alternative and a significant mitigation offer.” The project is eligible as an Improved Project wherein funding is capped at the estimated cost of the original repairs defined in PW 41. No additional funding is eligible. The Applicant’s appeal is denied.



Appendix A

AS 16.05.020. (AKA AS 41.14.020) states:
Functions of Commissioner.
The commissioner shall:
(1) supervise and control the department, and may appoint and employ division heads, enforcement agents, and the technical, clerical, and other assistants necessary for the general administration of the department;
(2) manage, protect, maintain, improve, and extend the fish, game and aquatic plant resources of the state in the interest of the economy and general well-being of the state;
(3) have necessary power to accomplish the foregoing including, but not limited to, the power to delegate authority to subordinate officers and employees of the department.
(4)
AS 16.05.050 (AKA AS 41.14.050) states:
Powers and Duties of Commissioner.

(a) The commissioner has, but not by way of limitation, the following powers and duties:
(1) to assist the United States Fish and Wildlife Service in the enforcement of federal laws and regulations pertaining to fish and game;
(2) through the appropriate state agency and under the provisions of AS 36.30 (State Procurement Code), to acquire by gift, purchase, or lease, or other lawful means, land, buildings, water, rights-of-way, or other necessary or proper real or personal property when the acquisition is in the interest of furthering an objective or purpose of the department and the state;
(3) under the provisions of AS 36.30, to design and construct hatcheries, pipelines, rearing ponds, fishways, and other projects beneficial for the fish and game resources of the state;
(4) to accept money from any person under conditions requiring the use of the money for specific purposes in the furtherance of the protection, rehabilitation, propagation, preservation, or investigation of the fish and game resources of the state or in settlement of claims for damages to fish or game resources;
(5) to collect, classify, and disseminate statistics, data and information that, in the commissioner's discretion, will tend to promote the purposes of this title except AS 16.51 and AS 16.52;
(6) to take, capture, propagate, transport, buy, sell, or exchange fish or game or eggs for propagating, scientific, public safety, or stocking purposes;
(7) under the provisions of AS 36.30, to provide public facilities where necessary or proper to facilitate the taking of fish or game, and to enter into cooperative agreements with any person to effect them;
(8) to exercise administrative, budgeting, and fiscal powers;
(9) under the provisions of AS 36.30, to construct, operate, supervise, and maintain vessels used by the department;
(10) to authorize the holder of an interim-use permit under AS 16.43 to engage on an experimental basis in commercial taking of a fishery resource with vessel, gear, and techniques not presently qualifying for licensing under this chapter in conformity with standards established by the Alaska Commercial Fisheries Entry Commission;
(11) not later than January 31 of each year, to provide to the commissioner of revenue the names of those fish and shellfish species that the commissioner of fish and game designates as developing commercial fish species for that calendar year; a fish or shellfish species is a developing commercial fish species if, within a specified geographical region,
(A) the optimum yield from the harvest of the species has not been reached;
(B) a substantial portion of the allowable harvest of the species has been allocated to fishing vessels of a foreign nation; or
(C) a commercial harvest of the fish species has recently developed;
(12) (to initiate or conduct research necessary or advisable to carry out the purposes of this title except AS 16.51 and AS 16.52;
(13) to enter into cooperative agreements with agencies of the federal government, educational institutions, or other agencies or organizations, when in the public interest, to carry out the purposes of this title except AS 16.51 and AS 16.52;
(14) to implement an on-board observer program authorized by the Board of Fisheries under AS 16.05.251 (a)(13); implementation
(A) must be as unintrusive to vessel operations as practicable; and
(B) must make scheduling and scope of observers' activities as predictable as practicable;
(15) to sell fish caught during commercial fisheries test fishing operations;
(16) to establish and charge fees equal to the cost of services provided by the department, including provision of public shooting ranges, broodstock and eggs for private nonprofit hatcheries, deper tof hatchery facilities, commercial use of sport fishing access sites, and for operation of state hatchery facilities by private aquaculture associations are not subject to the cost limit under AS 37.10.050 (a);
(17) to permit and regulate aquatic farming in the state in a manner that ensures the protection of the state's fish and game resources and improves the economy, health, and well-being of the citizens of the state;
(18) to operate state housing and facilities for employees, contractors, and others in support of the department's responsibilities and to charge rent that is consistent with applicable collective bargaining agreements, or, if no collective bargaining agreement is applicable, competitive with market conditions; rent received from tenants shall be deposited in the general fund;
(19) to petition the Alaska Commercial Fisheries Entry Commission, unless the Board of Fisheries disapproves the petition under AS 16.05.251(g), to establish a moratorium on new entrants into commercial fisheries
(A) that have experienced recent increases in fishing effort that are beyond a low, sporadic level of effort;
(B) that have achieved a level of harvest that may be approaching or exceeding the maximum sustainable level for the fishery; and
(C) for which there is insufficient biological and resource management information necessary to promote the conservation and sustained yield management of the fishery.
(D)
(b) The commissioner shall annually submit a report to the Board of Game regarding the department's implementation during the preceding three years of intensive management programs that have been established by the board under AS 16.05.255 for identified big game prey populations.

AS 16.05.840 (AKA AS 41.14.840) states:
Fishway Required.

If the commissioner considers it necessary, every dam or other obstruction built by any person across a stream frequented by salmon or other fish shall be provided by that person with a durable and efficient fishway and a device for efficient passage for downstream migrants. (Bold and Italics added for emphasis) The fishway or device or both shall be maintained in a practical and effective manner in the place, form, and capacity the commissioner approves, for which plans and specifications shall be approved by the department upon application to it. The fishway or device shall be kept open, unobstructed, and supplied with a sufficient quantity of water to admit freely the passage of fish through it.

AS 16.05.870 (AKA AS 41.14.870) states:
Protection of Fish and Game.

(a) The commissioner shall, in accordance with AS 44.62 (Administrative Procedure Act), specify the various rivers, lakes, and streams or parts of them that are important for the spawning, rearing, or migration of anadromous fish.

(b) If a person or governmental agency desires to construct a hydraulic project, or use, divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake, or stream, or to use wheeled, tracked, or excavating equipment or log-dragging equipment in the bed of a specified river, lake, or stream, the person or governmental agency shall notify the commissioner of this intention before the beginning of the construction or use.

(c) The commissioner shall acknowledge receiving the notice by return first class mail. If the commissioner determines that the following information is required, the letter of acknowledgement shall require the person or governmental agency to submit to the commissioner:
(1) full plans and specifications of the proposed construction or work;
(2) complete plans and specifications for the proper protection of fish and game in connection with the construction or work, or in connection with the use; and
(3) the approximate date the construction, work, or use will begin.
(4)
(d) The commissioner shall approve the proposed construction, work, or use in writing unless the commissioner finds the plans and specifications insufficient for the proper protection of fish and game. Upon a finding that the plans and specifications are insufficient for the proper protection of fish and game, the commissioner shall notify the person or governmental agency that submitted the plans and specifications of that finding by first class mail. (Italics and Bold added for emphasis) The person or governmental agency may, within 90 days of receiving the notice, initiate a hearing under AS 44.62.370. The hearing is subject to AS 44.62.330 - 44.62.630.
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