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Second Appeal Letter
PA ID# XXX-XXXXX; Marin Municipal Water District
PW ID# Project Worksheet 3532; Enviornmental Compliance
March 20, 2009
Governors Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95665
RE: Second AppealMarin Municipal Water District, Environmental Compliance
FEMA-1628-DR-CA, Project Worksheet (PW) 3532
Dear Mr. McCarton:
This letter is in response to your letter dated October 14, 2008, which transmitted the referenced second appeal on behalf of the Marin Municipal Water District (MMWD). The MMWD is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) decision to deny its request for funding to repair a damaged embankment.
In the wake of the December 2005-January 2006 Winter Storms, an embankment washout
exposed a 34-inch water main along Lagunitas Creek which supplies water to nearly
200,000 people. FEMA prepared PW 3532 (Category C) on June 8, 2006, to construct a
retaining wall to protect the endangered water main. Prior to FEMA reviewing the
project for compliance with the Endangered Species Act (ESA), the MMWD installed a
retaining wall. Section 7 of the ESA requires FEMA to consult with appropriate regulatory
agencies prior to funding work on projects that may impact endangered species. FEMA
contacted the National Marine Fisheries Service (NMFS) and requested an after-the-fact
consultation. The NMFS denied the request because the agency does not consult after the fact.
Because the required consultation was not done, FEMA denied MMWDs request for funding.
The MMWD submitted its first appeal on April 26, 2007, contending the project was covered by previously existing biological opinions issued by USFWS and NMFS in response to the Lagunitas Creek Sediment and Riparian Management Plan, a 10-year plan implemented by the United States Army Corps of Engineers (USACE) in 1997 to oversee work on a segment of Lagunitas Creek within Samuel P. Taylor State Park. FEMA conferred with the USFWS and NMFS, and both agencies responded that the work requested under PW 3532 was not considered as a part of the 10-year plan. Therefore, FEMA denied the first appeal on June 11, 2008.
On August 21, 2008, the Applicant submitted the second appeal contending that the installation of the retaining wall was an emergency measure. Additionally, the MMWD states that the project was not required to undergo ESA consultation with NMFS because the project did not impact any federally listed fish species or fish habitat. The PW was written to perform Category C work, and the Applicant did not inform FEMA that the nature of the work was an emergency until submitting its second appeal.
Based on my review of the information provided, the MMWD did not meet the ESA, Section 7 requirements prior to commencing work. Therefore, the second appeal is denied.
Please inform the MMWD of this determination. This determination constitutes the final decision of the matter pursuant to 44 CFR §206.206, Appeals.
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Karen Armes
Acting Regional Administrator