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Second Appeal Letter
PA ID# 041-99041-01; Marin County Department of Public Works
PW ID# 3534; Novato Creek Levee
March 29, 2010
Governor’s Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95665
RE: Second Appeal–Marin County Department of Public Works, PA ID 041-99041-01,
Novato Creek Levee, FEMA-1628-DR-CA, Project Worksheet (PW) 3534
Dear Mr. McCarton:
This letter is in response to your letter dated February 9, 2009, which transmitted the referenced second appeal on behalf of the Marin County Department of Public Works (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny $226,177 for emergency repairs on a section of the Novato Creek Levee because the Applicant completed the work before consulting with the National Marine Fisheries Service (NMFS), as required by the Endangered Species Act (ESA).
During the winter storms from December 17, 2005, through January 3, 2006, excessive rains caused flooding that breached a 150-foot-long by 15-foot-deep section of the 100- foot-wide Novato Creek Levee in the City of Novato in Marin County, California. FEMA prepared PW 3534 to reimburse the Applicant for its emergency protective measures, but determined the project ineligible because the Applicant did not comply with Federal contracting requirements specified under 44 CFR § 13.36(d)(4), Procurement, Procurement by noncompetitive proposals. The Applicant submitted support documentation with its first appeal to demonstrate that it complied with Federal procurement standards. After reviewing the information, the Deputy Regional Administrator approved the first appeal in a letter dated May 18, 2007. The Deputy Regional Administrator stated that prior to obligating funds for the project FEMA will conduct appropriate reviews to ensure that the work complied with applicable environmental laws and regulations. While conducting the environmental review, FEMA determined the levee repairs had the potential to affect Federally-listed threatened species under the ESA. The ESA requires Federal agencies or a potential recipient of Federal funds to consult with the NMFS or the Fish and Wildlife Service to determine the effects of the project on threatened or endangered species before the Federal agency approves funds for the project. The Applicant did not notify NMFS of the work prior to initiating the levee repair and NMFS would not consult with FEMA for ESA compliance after-the-fact. On September 7, 2007, FEMA determined PW 3534 ineligible for reimbursement due to noncompliance with Section 7(a)(2) of the ESA. The Deputy Regional Administrator sustained this determination on first appeal in a letter dated October 14, 2008.
On December 19, 2008, the Applicant submitted its second appeal arguing that USACE permits authorized dredge work at the Novato Creek Levee and permitted maintenance activities during an emergency at the levee in lieu of an ESA consultation. It submitted copies of the U.S. Army Corps of Engineers’ Nationwide Permits No. 31 and No. 33 that state, “In emergency situations, the NWP may be used to authorize maintenance activities in flood control facilities for which no maintenance baseline has been approved. Emergency situations are those which would result in an unacceptable hazard to like, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if action is not taken before a maintenance baseline can be approved.”
The USACE Nationwide permits do not relieve the applicant of the requirement to consult with the NMFS to evaluate the potential effect of the project on the Federally-listed threatened or endangered species. General condition No. 17 for NWP No. 31 and No. 33 require compliance with ESA and require the district engineer to make a “no effect” or “may effect” determination and enter into the required consultation before the project proceeds. General condition No. 26 requires pre-construction notification for activities under NWP No. 31 and No. 33, including emergency actions. This pre-construction notification would have allowed the U.S. Army Corps of Engineers to enter into “emergency consultation” with the NMFS in accordance with established procedures in 50 CFR Part 402. FEMA and the Applicant have met and discussed this project with representatives of the NMFS several times after the Applicant completed the project. The NMFS will not conduct a consultation after the Applicant completed the project. Based on a review of all information submitted with the appeal, I have determined that the Deputy Regional Administrator’s decision on the first appeal is consistent with applicable statute and regulations. Accordingly, I deny the appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward