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Second Appeal Letter
PA ID# 045-UXAW0-00; Noyo Harbor District
PW ID# Project Worksheet 3239; Noyo Harbor Riverway Dredging
December 17, 2008
Frank McCarton Governor's Authorized Representative Governor's Office of Emergency Services Response and Recovery Division3650 Schriever Avenue
Mather, California 95655
Re: Second AppealNoyo Harbor District, PA ID 045-UXAW0-00, Noyo Harbor Riverway Dredging
, FEMA-1628-DR-CA, Project Worksheet (PW) 3239
Dear Mr. McCarton:
This letter is in response to your letter dated May 14, 2008, which transmitted the referenced second appeal on behalf of the Noyo Harbor District (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agency (FEMA) denial of its funding request for PW 3239 for the dredging of the Noyo Harbor riverway.
Following winter storms in 2006, the Applicant dredged disaster-related silt and sediment from the Noyo Harbor riverway. The dredging was under the authority of the U.S. Army Corps of Engineers (USACE). However, USACE informed the Applicant that its emergency funds had been diverted to the Hurricane Katrina recovery mission and that it was unable to fund the project. As a result, FEMA prepared PW 3239 as an emergency protective measure. Following a review of the PW, FEMA determined the work to be ineligible because the river conditions did not pose an immediate threat to public health and safety. In addition, FEMA also determined that the dredging of the riverway was under the specific authority of the USACE.
On December 1, 2006, the Applicant submitted its first appeal requesting that FEMA approve PW 3239 on the basis that FEMA should have initially funded the work under 44 CFR §§206.5 and 206.8, which address direct Federal assistance. The Applicant also argued that FEMA Publication 325, Debris Management Guide,
allows for FEMA funding eligibility regardless of who is responsible for the financial cost associated with the removal of emergency impediments to maritime navigation. The Applicant argued that the river conditions were an emergency and a threat to public health and safety because the U.S. Coast Guard (USCG) was prevented from performing search and rescue operations. In a letter dated January 29, 2008, the Deputy Regional Administrator denied the Applicants first appeal reiterating the initial determination that the riverway conditions did not present an immediate threat to public health and safety and that the work to return the riverway to its pre-disaster condition was under the authority of the USACE.
In its second appeal, dated March 28, 2008, the Applicant reiterated its arguments from the first appeal stating that FEMA could fund the work as direct Federal assistance, as an emergency protective measure, or as permanent restoration of the riverway. The Applicant also provided information from the USCG stating that the USCG was unable to respond to search and rescue operations due to the river conditions and that it broadcast warnings to mariners regarding hazardous bar conditions due to extreme shoaling in the river.
The USCGs broadcast warnings reduce the immediate safety threat to boaters that the shoeling may pose. USACE has statutory authority to dredge the Noyo Harbor riverway. Therefore, the permanent restoration of the riverway is not eligible for funding by FEMA in accordance with 44 CFR §206.226(a)(1). 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 Assistant Administrator Disaster Assistance Directorate
cc: Nancy Ward Regional Administrator FEMA Region IX