Appeal Brief | Appeal Letter | Back
Second Appeal Brief
PA ID# 041-99041-01; Marin County Department of Public Works
PW ID# 3534; Novato Creek Levee
Citation: FEMA-1628-DR-CA, Marin County Department of Public Works, Novato Creek Levee, Project Worksheet (PW) 3534
Reference: Environmental Compliance
Summary: During the winter storms from December 17, 2005, through January 3, 2006, excessive rains caused flooding that damaged a portion of the Novato Creek Levee in Marin County. FEMA prepared PW 3534 to reimburse the Applicant for its emergency protective measures. FEMA initially denied PW 3534 because the Applicant did not comply with Federal contracting requirements. However, the Applicant supplied support documentation to FEMA with the first appeal. With this additional information, FEMA approved $226,177 pending the completion of FEMA’s review for compliance with Federal environmental laws and regulations. While conducting the environmental review, FEMA determined the levee repairs had the potential to affect Federally-listed threatened species. The Applicant did not notify National Marine Fisheries Service (NMFS) of the emergency work prior to completion of the levee repairs and NMFS would not consult with FEMA for Endangered Species Act (ESA) compliance after the fact. FEMA determined PW 3534 ineligible for reimbursement due to noncompliance with Section 7(a) (2) of the ESA. The Deputy Regional Administrator upheld this determination on first appeal.
In its second appeal the Applicant argued that it was exempt from National Environmental Policy Act (NEPA) review because it obtained a USACE permit prior to the disaster that authorized maintenance activities in flood control facilities in response to emergencies in lieu of an ESA consultation. Support documents include copies of USACE general permits No. 31 and No. 33 verifying that emergency work on the levee was permitted and a copy of the Clean Water Act 401 certification from the California Regional Water Quality Control Board allowing repair work on the levee in emergency situations.
Issue: Did the work require consultation with the NMFS prior to completion of the emergency repairs?
Rationale: Response and Recovery Policy 9560.1, Environmental Policy Memoranda, MEMO No. 3, Exception; Endangered Species Act, Section 7(a)(2), Interagency Cooperation