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Second Appeal Letter
PA ID# 045-99045-00; Mendocino County
PW ID# Project Worksheet 847; Eel River Road
April 9, 2008
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealMendocino County, PA ID 045-99045-00, Eel River Road
FEMA-1628-DR-CA, Project Worksheet (PW) 847
Dear Mr. Jacks:
This letter is in response to the referenced second appeal submitted by Mendocino County (Applicant) that was transmitted by your letter dated October 12, 2007. The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of funding for the repairs on Eel River Road.
Storms and heavy rains 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, eliminating lateral support to the structural section of the road. On March 21, 2006, FEMA prepared PW 847 to repair the slide on Eel River Road (category C) in the amount of $88,439. FEMA obligated $0 because the work was completed prior to review by FEMA for compliance with Section 7 of the Endangered Species Act (ESA). Under Section 7 of the ESA, a Federal agency that permits, licenses, funds, or otherwise authorizes activities must consult with National Marine and Fisheries Service (NMFS) to ensure that the action will not jeopardize listed species.
In a letter dated October 12, 2006, the Applicant submitted its first appeal. The Applicant claimed that the work was undertaken in emergency circumstances such that it would be exempt from National Environmental Policy Act (NEPA) review; that the work was commenced before the declaration date and completed shortly afterwards; that FEMA was responsible for the Section 7 consultation; and that the work was far enough away from Eel River channel so as not to impact any listed species under the jurisdiction of the NMFS. In a letter dated July 9, 2007, the Deputy Regional Administrator denied the appeal because emergency work was not exempt from ESA and the Applicant had the obligation to contact NMFS and the U.S. Fish and Wildlife Service to ensure the repair work would not violate ESA regardless of the declaration date.
In a letter dated July 27, 2007, the Applicant submitted its second appeal requesting a post-work consultation from the NMFS. The Applicant provided the manual, A Water Quality and Stream Habitat Protection Manual for the County Road Maintenance in Northwestern California Watersheds which was adopted in 2002 and a letter dated July 19, 2007, from NMFS, Southwest Region, which stated that it reviewed the manual and found that road maintenance activities conducted in accordance with that manual, would adequately conserve threatened species within the five counties.
If a project has the potential to affect a threatened or endangered species or its habitat, FEMA must consult with NMFS before approving funding for that project. ESA Section 7 consultations cannot be initiated after the work has been completed. FEMA requested an NMFS consultation and NMFS indicated that it could not consult on projects after the work was completed. Further, the manual, A Water Quality and Stream Habitat Protection Manual for the County Road Maintenance in Northwestern California Watersheds, states that work potentially impacting stream habitat with ESA-listed species requires NMFS pre-project notification if federal funding is being used or federal permits are required (ESA Section 7 emergency consultation). The Applicant has not provided documentation that the work performed on the subject project followed the procedures listed in the subject manual. We have reviewed all information submitted with the appeal and have determined that the Deputy Regional Administrators decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX