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Second Appeal Letter
PA ID# 045-99045-00; Mendocino County
PW ID# PW 2936; Enviornmental Mitigation Measures
June 4, 2009
Governors Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealMendocino County, PA ID-045-99045-00,Environmental Mitigation Measures
, FEMA-1628-DR-CA, Project Worksheet (PW) 2936
Dear Mr. McCarton:
This letter is in response to your correspondence dated February 19, 2008, which transmitted the referenced second appeal on behalf of Mendocino County (Applicant). The Applicant is appealing the Department of Homelands Securitys Federal Emergency Management Agencys (FEMA) denial of approximately $55,000 for environmental mitigation measures.
As a result of severe storms and flooding from December 17, 2005, through January 3, 2006, the President declared a major disaster in California at the request of the Governor (FEMA-1628-DR-CA). FEMA prepared PW 2936 for $2,392 to fund the placement of rip-rap and grading of a gravel bar on Town Creek in Mendocino County as emergency protective measures to prevent erosion that was threatening Airport Road. The work was subsequently determined to be ineligible and PW 2936 was obligated for $0 on June 16, 2006.
The Applicant submitted its first appeal to the California Governors Office of Emergency Services (OES) on November 15, 2006. In its appeal, the Applicant requested funding for emergency work as detailed on PW 2936 for reconstruction of the eroded embankment, installation of willow baffles, and placement of filter fabric and riprap on the reconstructed slope. The Applicant claimed that the additional work was necessary to minimize harm to aquatic life and vegetation. In a letter dated April 9, 2007, the Deputy Regional Director approved funding in the amount of $2,392 for emergency work and requested documentation to support the Applicants claim the environmental mitigation measures were necessary to meet permit requirements of the United States Army Corps of Engineers (USACE). OES submitted documentation on behalf of the Applicant on June 7, 2007. After reviewing the submitted documentation, the Deputy Regional Director denied funding for the additional
work in a letter dated September 21, 2007, concluding USACE did not require implementation of environmental mitigation measures and the work was not authorized by a USACE permit.
The Applicant submitted its second appeal on December 14, 2007. In its appeal, the Applicant claimed that a representative from National Marine Fisheries Service (NMFS) suggested the environmental mitigation measures during a site visit. The Applicant also referenced a letter from the California Department of Fish and Game (CDF&G), dated May 7, 2007, to support their claim that mitigation measures were required by CDF&G. The letter states, Compliance with Fish and Game Code can require post-emergency mitigation measures to minimize impacts to listed species and sensitive resources. The letter also states that CDF&G recommends (the Applicant) consider effective use of bio-engineering in the form of willow baffles combined with rock at the toe of emergency dikes. The letter from CDF&G recommends activities for restoration work in the creek, but does not assert that the Applicant was required to implement environmental mitigation measures to comply with the law.
In its second appeal, the applicant did not provide documentation to demonstrate that the environmental mitigation measures were necessary to satisfy a Federal or State requirement. USACE authorized only the initial emergency work with special conditions resulting from a Section 7 consultation with NMFS. The special conditions did not include additional work such as complete restoration of the bank or installation of willow baffles. I have reviewed the information submitted with the appeal and determined that the Deputy Regional Directors decision in the first appeal is consistent with Public Assistance regulations and policies. Therefore, I am denying the appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX