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Second Appeal Letter
PA ID# 093-99093-00; Siskiyou County
PW ID# Project Worksheet 2090; South Fork Road Bridge at Indian Creek
August 4, 2008
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, California 95655
Re: Second AppealSiskiyou County, PA ID 093-99093-00, South Fork Road Bridge at Indian Creek
Project Worksheet (PW) 2090
Dear Mr. McCarton:
This is in response to your letter dated February 6, 2008, which transmitted the referenced second appeal on behalf of Siskiyou County (Applicant). The Applicant appealed the denial by the Department of Homeland Securitys Federal Emergency Management Agency (FEMA) to provide $69,903 for repair of a washout at the westerly approach to the South Fork Road Bridge at Indian Creek, as detailed on PW 2090.
FEMA determined that PW 2090 was ineligible because the Applicant completed the work prior to review by FEMA for compliance with Section 7 of the Endangered Species Act (ESA). The Applicant submitted its first appeal on April 23, 2007, to the California Governors Office of Emergency Services. In its first appeal, the Applicant claimed that the project was statutorily excluded from National Environmental Policy Act review and that the project had no effect on federally listed species. The Deputy Regional Administrator denied the appeal in a letter dated August 21, 2007, confirming that the project had the potential to adversely affect federally listed species and required consultation with National Marine Fisheries Service (NMFS) before the project was implemented.
The Applicant submitted its second appeal on December 10, 2007. The Applicant claimed that FEMA did not provide notification that a NMFS consultation was required prior to completion of the work. The Applicant contended that the repair work was completed in accordance with A Water Quality and Stream Habitat Protection Manual for County Maintenance in Northwestern California Watersheds (Manual). The Applicant also provided a letter from NMFS, dated July 19, 2007, which stated that road maintenance activities conducted in accordance with the Manual would adequately conserve threatened species. The Applicant stated that the project was completed in August 2006 for $21,682.
In its transmittal, OES recommended that FEMA dispatch its biological consultant to the site and interview county and NMFS staff to determine whether the county repair could, in fact, have had an effect upon listed species. OES contends that the project should be funded because the work was completed in accordance with the Manual and because NMFS found, after-the-fact, that the work did not adversely affect federally listed species under ESA.
If a project has potential to affect a threatened or endangered species or its habitat, FEMA must consult with NMFS before approving funding for the project. ESA Section 7 consultations cannot be initiated after the work has been completed. Furthermore, Section 8-A of the Manual 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 did not provide documentation that the work performed on the subject project followed procedures listed in the Manual. We reviewed all information submitted with the appeal and determined that the Deputy Regional Administrators decision is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX