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Second Appeal Letter
PA ID# 025-99035-00; Yavapai County
PW ID# Project Worksheets 40, 92, 94, and 207; Road Repair
September 29, 2008
Ms. Beth Zimmerman
Alternate Governors Authorized Representative
State of Arizona Division of Emergency Management
5636 East McDowell Road, Building M5507
Phoenix, AZ 85008-3495
Re: Second AppealYavapai County, PA ID 025-99025-00, Road Repair
FEMA-1586-DR-AZ, Project Worksheets (PWs) 40, 92, 94, and 207
Dear Ms. Zimmerman:
This letter is in response to your letter dated March 28, 2008, which transmitted the referenced second appeal on behalf of Yavapai County (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of funding for road repairs at various locations throughout the county.
Following severe flooding in February 2005, the Applicant contracted with Carson Construction for the repair of several gravel roads, including resurfacing, restoring shoulders and slopes, and cleaning and reshaping of ditches. FEMA subsequently prepared PWs 40, 92, 94, and 207 for the road repair work. In November 2006, as the repairs neared completion, the Applicant notified FEMA that several work sites had been repaired using material from a privately owned borrow pit that had not been certified through the regulatory process for compliance with State and Federal laws. On May 4, 2007, FEMA de-obligated all funds for the referenced PWs because FEMA was unable to comply with the National Environmental Policy Act (NEPA) for the actions related to excavation of fill material from the borrow pit.
In a letter dated June 26, 2007, the Applicant submitted its first appeal stating that not all of the material was extracted from the uncertified borrow pit, and that transportation and placement of the material, ditch cleaning, and concrete and pipe work were not related to the excavation. On December 14, 2007, the Deputy Regional Administrator partially approved the appeal, reinstating funding for work related to material excavated from certified quarries, ditch cleaning, and concrete and pipe work. However, funding was denied for all actions associated with the excavation of the uncertified borrow pit, including transportation and placement of the material, because FEMA was unable to comply with NEPA requirements.
In its second appeal, submitted on March 5, 2008, the Applicant claims that FEMA de-obligated funding for transporting and placing material, which it asserts are statutorily excluded from NEPA review requirements. The appeal also notes that the biological and archaeological reports, prepared by SWCA Environmental Consultants for Carson Construction, conclude that there was no adverse environmental impact from the excavation.
On December 8, 2006, FEMA consultants performed an archaeological and biological reconnaissance of the borrow pit site and identified a small prehistoric archeological site next to the excavated pit that is associated with other artifacts recorded in Arizonas Cultural Resource Inventory and discovered potential habitat for the endangered Arizona cliffrose.
Excavation of the site prior to completing an environmental and historic preservation review violates Section 106 of the National Historic Preservation Act (NHPA), which requires cultural surveys with the Arizona State Historic Preservation Officer and potentially affiliated tribes (Salt River Pima-Maricopa Indian Community, Fort McDowell Yavapai Nation, Yavapai-Apache Nation, and Hopi Tribe). The action also violates Section 7 of the Endangered Species Act (ESA), which requires an intensive botanical survey and consultation with U.S. Fish and Wildlife Service Arizona Ecological Services Office. As a condition of federal funding, environmental requirements must be met prior to performing work. Therefore, all work related to the uncertified borrow pit, including transporting and placing the material, is not eligible.
I have reviewed the information submitted with the appeal and have determined that the Deputy Regional Administrators decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Ms. Nancy Ward
FEMA Region IX