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Second Appeal Brief
PA ID# 045-99045-00; Mendocino County
PW ID# Project Worksheet 847; Eel River Road
FEMA-1628-DR-CA, Mendocino County, Eel River Road, PW 847Cross-reference:
Storms and heavy rains of December 17, 2005, through January 3, 2006, washed out a 60-foot long by 4-foot wide by 2-foot deep section of drainage ditch and caused a 30-foot by 40-foot by 6-foot section of road embankment to slip, compromising the structural section of the Eel River Road. FEMA prepared PW 847 to repair the slide on Eel River Road (category C) in the amount of $88,439. FEMA did not fund this project because the work was completed prior to review by National Marine Fisheries Service (NMFS) or FEMA for compliance with Section 7 of the Endangered Species Act (ESA).
In its first appeal, the Applicant and the Office of Emergency Services (OES) argued that: 1) the work was permanent work undertaken in emergency circumstances and was statutorily excluded from review under the National Environmental Policy Act (NEPA), 2) the requested pre-project review by FEMA could not have been performed before the disaster was declared on February 3, 2006, and by then the work was already complete, 3) FEMA, not the Applicant, was responsible for the consultation, and 4) the work undertaken was over 1,000 feet from the Eel river channel, far enough from the channel so as not to impact any listed species under jurisdiction of the NMFS. The Deputy Regional Administrator denied the Applicants first appeal stating that there was no exclusion from the ESA for emergency work and the Applicant has an obligation to contact NMFS and the U.S. Fish and Wildlife Service to ensure the repair work would not violate the ESA.
In its second appeal, the Applicant stated that it complied with published procedures and activities that the NMFS had reviewed and requested a post-work consultation from NMFS.Issues:
1. Are emergency repairs exempt from ESA provisions?
2. May after-the-fact consultation with NMFS substitute for consultation prior to funding?Findings:
44 CFR Part 10, Response and Recovery Policy 9560.1, Environmental Policy Memoranda