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Second Appeal Brief
PA ID# 000-U0291-00; Alaska Department of Transportation and Public Facilities
PW ID# 41; Crooked Creek Culvert
Citation: FEMA-1445-DR-AK; Alaska Department of Transportation and Public Facilities, Crooked Creek Culvert, PW 41
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 Applicants 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