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Second Appeal Letter
PA ID# 097-99097-00; Sonoma County
PW ID# 3509; Spring Lake Diversion Channel
July 24, 2009
Governors Authorized Representative
Office of the Secretary
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655
Re: Second AppealSonoma County, PA ID 097-99097-00, Spring Lake Diversion Channel
, FEMA-1628-DR-CA, Project Worksheet (PW) 3509
Dear Mr. McCarton:
This is in response to your letter dated January 29, 2009, which transmitted the referenced second appeal on behalf of Sonoma County (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of funding for PW 3509.
Heavy rainfall and rising floodwaters deposited debris and silt in and around the Spring Lake Reservoir and diversion channel. As an emergency protective measure, the Applicant removed a six-foot depth of debris from a 350-foot-long by 80-foot-wide area in the diversion channel. FEMA prepared PW 3509 for $309,093 to fund this work. Subsequently, FEMA determined PW 3509 ineligible because the Applicant completed the work prior to FEMA review for compliance with Section 7 of the Endangered Species Act (ESA).
In a letter dated May 7, 2007, the Applicant submitted its first appeal stating that prior to beginning the work it applied for and received authorization under a Regional General Permit Number 5 (RGP 5) from the United States Corps of Engineers (USACE). On October 15, 2007, the Governors Office of Emergency Services (OES) forwarded additional information from the Applicant, including a copy of the Applicants application for a RGP 5 and a post-activity report as required by the RGP 5. In a letter dated September 19, 2008, the Deputy Regional Administrator denied the appeal because FEMA could not ensure compliance with Section 7 of the ESA.
In its second appeal, submitted on November 21, 2008, the Applicant reiterates that it submitted the application for the RGP 5 from the USACE in an email dated January 12, 2006, and that it took appropriate steps to comply with Section 7 of the ESA.
As a condition of Federal funding, applicants must meet environmental requirements prior to performing work. Clearing the silt and debris deposited in the Spring Lake Reservoir and diversion channel prior to completing an environmental review violates Section 7 of the ESA, which requires an intensive botanical survey and consultation with U.S. Fish and Wildlife Service. Therefore, all emergency debris removal work related to the Spring Lake Reservoir and diversion channel is ineligible for funding.
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 determination. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX