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Second Appeal Letter
PA ID# 097-99097-00; Sonoma County
PW ID# 652; Cherry Creek Road
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, Cherry Creek Road
, FEMA-1646-DR-CA, Project Worksheet (PW) 652
Dear Mr. McCarton:
This is in response to your letter dated January 28, 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 652.
Heavy rainfall and runoff caused saturated soils to settle and erosion damage to four separate sites along Cherry Creek Road in Sonoma County. FEMA prepared PW 652 for $36,695 to replace a riprap rock buttress against the vertical washed out embankment section and to re-establish the shoulder and asphalt road surface. FEMA determined that the Applicant completed the work prior to FEMA review for compliance with Section 7 of the Endangered Species Act (ESA). The ESA prohibits Federal actions that cause takings of species listed as threatened or endangered, or the destruction or adverse modification of the habitat for these species. PW 652 indicated that Section 7 of the ESA, requiring consultation with the National Marine Fisheries Service, applied because a portion of the work included work within Porterfield Creek, a tributary to the Russian River known to provide endangered steelhead and salmon habitat. Therefore, FEMA obligated PW 652 for $0.
In a letter dated November 20, 2006, the Applicant submitted its first appeal stating that the Cherry Creek Road was the only means of ingress and egress for 50 residents and that the condition of the road threatened the life and safety of those traveling over it. The Applicant also explained that the repairs only consisted of filling the settled shoulder and lost paving with asphalt. There was no excavation. Finally, the Applicant asserted that the project site was located a mile and a half from the Russian River and, therefore, did not meet the criteria for permits. In a letter dated September 24, 2008, the Deputy Regional Administrator denied the appeal because FEMA could not ensure compliance with Section 7 of the ESA without
documentation that the U.S. Army Corps of Engineers (USACE) issued a Regional General Permit Number 5 (RGP 5) for the work associated with PW 652.
In its second appeal, dated December 10, 2008, the Applicant stipulates that the RGP 5 is a specific non-reporting permit that does not require a written response from the USACE and that critical habitat does not exist in the project area. The RGP 5 does not authorize any activity that is likely to jeopardize the continued existence of a threatened or endangered species, destroy, or adversely modify designated critical habitat.
As a condition of Federal funding, applicants must meet environmental requirements prior to performing work. The Applicant performed the work prior to FEMA reviewing the work for compliance with Section 7 of the ESA. The Applicant has not provided documentation that it consulted with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. Therefore, FEMA cannot verify compliance with the ESA. Federal funding of work to repair disaster-related damage to embankments and roads prior to completing an environmental review would violate Section 7 of the ESA. Therefore, the work is not eligible for Public Assistance funding and 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