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Second Appeal Letter
PA ID# 073-1C971-00; Humboldt County
PW ID# 1083; Environmental Compliance,
December 14, 2009
Governor’s Authorized Representative
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655
Re: Second Appeal–Humboldt County, PA ID 073-1C971-00,
FEMA-1628-DR-CA, Project Worksheet (PW) 1083
Dear Mr. McCarton:
This letter is in response to your letter dated July 23, 2009, which transmitted the referenced second appeal on behalf of Humboldt County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $31,396 damages to the Lindley Road bridge abutment and embankment.
Heavy rains from December 17, 2005 through January 3, 2006, caused the Mattole River to overtop its banks and scour the south abutment and embankment of the Lindley Road bridge. The Applicant completed stabilization repairs during the storm event and completed additional slope protection work along 100 feet of the embankment following the storms. The Applicant completed this project without obtaining a permit from the U.S. Army Corps of Engineers (USACE), consultation with the National Marine Fisheries Service (NMFS), or review by FEMA. Stabilization work conducted in the waters of the United States must be permitted by USACE under Section 404 of the Clean Water Act. Additionally, this work must comply with Section 7(a)(2) of the Endangered Species Act, which requires consultation with NMFS prior to commencement. Subsequently, FEMA determined on April 18, 2006, that the repairs captured in PW 1083 are ineligible due to the Applicant’s failure to comply with environmental statutes.
The Applicant submitted its first appeal on November 8, 2006. The Applicant stated that the bridge abutment and embankment repair was emergency work necessary to abate a public safety hazard to residents stranded in the area. The Applicant stated that it immediately notified USACE of its actions and requested a permit under the Clean Water Act. According to the Applicant, USACE had determined that the scope of work qualified for a Nationwide Permit, which would satisfy compliance with the Endangered Species Act. On June 21, 2007, the Deputy Regional Administrator requested additional information from the Applicant to support its claim. The Applicant submitted email correspondence with USACE on December 27, 2007. This correspondence evidenced that the Applicant’s project was not eligible for a Nationwide Permit, and therefore required consultation with NMFS in order to comply with Section 7 of the Endangered Species Act. NMFS informed FEMA on February 6, 2009, that it would not conduct an after-action consultation of the Applicant’s project. Consequently, the Acting Regional Director denied the Applicant’s appeal on March 26, 2009, because FEMA cannot fund a project that is not in compliance with the Endangered Species Act.
The Applicant submitted its second appeal on May 29, 2009. The Applicant maintained that the project was necessary to protect improved property and allow emergency service providers access to residents stranded by the storms. The Applicant stated that NMFS consultation is not required if “Federal action will have no effect on a listed species.” According to the Applicant, USACE did not request a consultation from NMFS because its staff believed that the project would have no effect on any species present. The Applicant also stated that the work did not involve excavation of material or require the use of heavy equipment in the water. Additionally, the work was not conducted during the spawning season of the Central California Coast Coho salmon. The Applicant requested that FEMA act as lead agency for Section 7 compliance and approve its funding request.
I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. NMFS has stated that it will not perform an after-action review of the Applicant’s project. FEMA cannot fund projects that do not comply with the Endangered Species Act. 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, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX