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Second Appeal Analysis
PA ID# 069-99069-00; Houston County
PW ID# 735, 738, 739, and 772; Environmental Compliance
President Obama declared major disaster FEMA-1835-DR-AL on April 28, 2009, as a result of severe storms, characterized by wind, rain, tornadoes and flooding, that swept across Alabama between March 25 and April 3, 2009. In Houston County, floodwaters scoured bridge pilings and abutments at several stream crossings. FEMA staff met with representatives of Houston County (Applicant) and on July 15 and 16, 2009, prepared PWs 735, 738, 739, and 772 for a total cost of $294,609 for the repair of damaged bridges on South County Road 33, Enterprise Church Road, and Quail Drive. The scopes of work included damming and rerouting the respective waterways for approximately ten days, while the Applicant encased the exposed metal of the pilings in concrete to a depth of three feet below the mud line. Once the concrete cured and the eroded abutments were reinforced with compacted fill, the repaired pilings and abutments were to be covered by riprap to a minimum depth of 18 inches.
Three weeks before FEMA prepared the PWs, the U.S. Department of the Interior’s Fish and Wildlife Service (FWS) sent a letter to the FEMA Region IV Regional Environmental Officer on June 24, 2009, acknowledging that the flooding had likely resulted in adverse effects on streams’ flora and fauna, and advised that care should be taken to ensure that the restoration of damaged stream crossings should avoid placing additional stress on any threatened or endangered (T/E) species or their critical habitats. Included with the letter was guidance on techniques and alternatives for the repair or replacement of stream crossings, such as bridges, culverts, and other low-water crossings. The guidance noted that FEMA is required under the Endangered Species Act (ESA) to consult with the FWS on projects that have the potential to affect T/E species or their critical habitats.
To facilitate review and minimize consultation, FWS provided conditions for several types of stream crossing restoration projects where: T/E or candidate species were present at the project site; the project site was located in critical habitat; the project site was upstream from T/E species or critical habitat; and projects located in the 100-year floodplain. For projects involving the repair of bridges to pre-disaster condition, the required conditions included: obtaining a Section 404 permit from the U.S. Army Corps of Engineers, minimizing in-stream work, minimizing clearing, installation of appropriate erosion control devices, conducting work from a stable stream bank or reinforced platform to avoid degradation or destabilization of the stream bank, as well as removal and appropriate off-site disposal of all remnants of the damaged structure and the repair work. The guidance advised that if the conditions were followed the repair work could begin without additional coordination; however, if the conditions could not be adhered to, FEMA would need to engage in additional coordination with FWS before work commenced.
In letters dated August 3, 11, 13, and 17, 2009, FEMA provided FWS with scopes of work, maps, and photographs for the referenced PWs and requested ESA concurrence on the projects. FWS responded, with two letters dated August 24 and September 11, 2009, that it was unable to provide ESA concurrence because five T/E species of bivalves and their critical habitat were known to be located within or near the project sites. FWS requested that FEMA conduct surveys for the molluscs from 200 meters upstream to 200 meters downstream of each stream crossing. As the projects required that the “creek bed around the pilings will be pumped dry for approximately ten days,” FWS concluded that “[i]f surveys indicate that listed mussels occur within the proposed project area and proposed work cannot be altered to avoid direct or indirect effects to a listed species, or critical habitat cannot be entirely avoided, formal consultation would be recommended.” The letter also advised that because the projects entailed work in a stream, the Applicant should obtain a Clean Water Act Section 404 permit from the U.S. Army Corps of Engineers.
Generally, FEMA employs contracted environmental services to perform biological surveys; however, in fiscal year 2010, due to a low balance in the Disaster Relief Fund, FEMA officials implemented a funding method called “Immediate Needs Funding” (INF) that restricted funding to only emergency work projects, thereby preventing FEMA from procuring the services to conduct the surveys. Before the cessation of INF allowed FEMA to procure a contract to complete the biological surveys, the Applicant completed the work on the four stream crossings.
With an August 10, 2011, letter, FEMA informed the FWS that the requested surveys had not been conducted and that the Applicant completed repair of the bridges before December 6, 2010. The letter requested guidance on whether the projects could be funded in the absence of the evidence on whether T/E species or their habitats were present at the project sites. FWS replied with a letter dated, August 24, 2011, which stated that FWS “does not enter into Endangered Species Act section 7 consultations when applicants are seeking after-the-fact authorization for projects that have already been completed.” The FWS explained that the purpose of the consultation process is to address the potential for impacts on T/E species by projected work rather than completed work. For work that is completed without consultation, the FWS noted that it can provide no indemnity on the liability for the taking of T/E species under section 9 of the ESA. FEMA notified the Alabama Emergency Management Agency (AEMA), with a letter dated December 12, 2011, that the PWs were ineligible for funding due to non-compliance with ESA.
The Applicant submitted a first appeal to AEMA on February 7, 2012. In the appeal, the Applicant claimed that it repeatedly requested partial payment of the PWs from AEMA and FEMA while the PWs were in the review process. The Applicant maintained that during that time, FEMA never notified it that biological surveys were requested by FWS or were required before the repair work could begin. Based on its interactions with FWS on previous projects and FEMA’s guidance that states that emergency work and permanent work to repair damaged facilities to pre-disaster condition are statutorily excluded from review for compliance with the National Environmental Policy Act (NEPA), the Applicant stated that it believed that as long as the repair work did not increase the footprint of the damaged facility, there were no additional environmental requirements. Consequently, the Applicant asserted that the biological surveys were unnecessary as no additional consultation with FWS was required in order to complete the documented scopes of work.
The FEMA Regional Administrator denied the appeal with a letter dated April 13, 2012, stating that the four projects were ineligible because they were not compliant with the requirements of Section 7 of the ESA. The Regional Administrator explained that regardless of statutory exclusion from NEPA review, compliance with ESA remains a requirement of every project and FEMA is required to consult with FWS whenever a project has the potential to adversely effect a T/E species or its habitat.
In a second appeal letter submitted to AEMA on June 17, 2012, the Applicant argues that FEMA should not have denied funding for the PWs because not only did the completed repairs improve the streams from pre-flood conditions, but the projects complied with Section 7 of the ESA by virtue of having satisfied the conditions specified in the guidance included with the June 24, 2009, letter from FWS. The Applicant contends that both FEMA’s consultation with FWS and the resultant biological surveys were unnecessary and that FEMA should review special considerations only when there is evidence of an issue; otherwise, it would be onerous for FEMA to require surveys for all T/E species for every project. Furthermore, the Applicant claims that even if T/E molluscs or their habitat were present at or near the stream crossings before the disaster, the adverse effects associated with the scour of the streambed by the floodwaters were far greater than any effects the repairs could have had.
While the Applicant states that it was not aware of the FWS letter or the guidance enclosed therein, the Applicant insists that its standard repair practice is consistent with each of the FWS’s conditions for bridge repair. In addition to having satisfied the conditions, the Applicant points out that FEMA is statutorily exempt from conducting a review under NEPA for actions that restore damaged facilities to pre-disaster condition. As the scopes of work for the stream crossings resulted in the restoration of the pilings and abutments to pre-disaster condition, the Applicant suggests that since the repair projects did not change the footprint of the facility, FEMA was not required to engage with FWS in ESA consultation, and that such efforts would be better directed to alternate and improved projects, or projects that entail relocation or hazard mitigation.
Notwithstanding the Applicant’s objection to the ESA consultation, the second appeal asserts that FEMA not only neglected to notify the Applicant of the FWS letter or the need for mussel surveys, but did not discuss any specific environmental issues regarding the PWs with the Applicant during any of the several meetings held with the Applicant before work began in July 2010. The Applicant maintains that it became aware of the concern over the potential for adverse effects to mussels and clams once it inquired with the FWS in September 2011, two years after FWS had requested the surveys from FEMA. The Applicant stresses that because the biological surveys and the associated reviews were taking longer than was reasonable, FEMA should have assigned an environmental specialist to work with the Applicant and advise it not to commence work until after the FWS consultation process completed. The appeal letter concludes that it is unreasonable for FEMA to penalize the Applicant for FEMA’s failure to effectively coordinate, communicate, and resolve the environmental issues for the stream crossing projects.
The Applicant is correct that Section 316 (42 U.S.C. § 5159) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) provides an exemption from NEPA review for Federal actions taken by FEMA which restore damaged facilities to pre-disaster condition. While NEPA provides a framework for Federal agencies to assess the environmental impacts and consider alternatives of proposed actions, it is only one part of FEMA’s Environmental and Historic Preservation (EHP) review. The Applicant asserts that because the restoration of the damaged stream crossings did not change the footprints of the facilities nor alter the streams’ pre-flood conditions that no additional environmental review was necessary and that FEMA should not have engaged in consultation with FWS. However, there is no legal provision for this conclusion. Exemptions from NEPA, whether statutory or categorical, do not exempt FEMA’s actions from compliance with all other environmental laws, regulations, and executive orders, including the Clean Water Act and the Endangered Species Act.
The requirement for consultation with FWS is established in Section 7 of the ESA, whereby
“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency… is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical…”
As a way to facilitate Federal compliance with this provision of ESA, FWS provided FEMA with sets of conditions for common post-disaster stream crossing projects aimed at reducing the potential for adverse effects on T/E species or their habitats. As the Applicant’s damaged bridges were near or within known critical habitat for several species of T/E molluscs, it was unclear whether adherence to the conditions was necessary at any of the sites. Accordingly in response to FEMA’s inquiry, FWS requested biological surveys. Should the results of the surveys have shown that conformance to the conditions was required of the repair work, FEMA would have required a mechanism to either monitor or verify that each of the ESA conditions, as well as the requirement for a 404 permit from the U.S. Army Corps of Engineers, were fulfilled.
While it is not only unfortunate in this case that the INF precluded prompt completion of the surveys, but it is also regrettable that there was not better coordination and communication between FEMA, AEMA, and the Applicant on the environmental issues with these PWs. That being said, Section 9 of the ESA strictly prohibits “any person subject to the jurisdiction of the United States to… take any such [threatened or endangered] species within the United States.” For the repair of the bridge pilings and abutments, the damming and diversion of the stream for ten days had the potential to take T/E molluscs. The Applicant argues that if any T/E molluscs were present before the disaster, the scouring of the streambed by the floodwaters would have likely been more detrimental to the species and their habitat than would the repairs. However, this comparison is misleading, because the taking of fewer species or taking of lesser amount of critical habitat than a natural event does not make an illegal action less illegal.
As a condition of federal funding, applicants must meet environmental requirements before performing work. The Applicant performed the work prior to FEMA reviewing the work for compliance with the ESA. The Applicant has not provided documentation that it consulted with the U.S. Fish and Wildlife Service or strictly adhered to the conditions of the FWS guidance. Since FWS does not engage in ESA consultation after work has been completed, there is no way to verify compliance with the ESA.
The repair of the Applicant’s damaged bridges had the potential to adversely affect T/E species or their habitat. In order for FEMA to comply with the ESA, FWS required surveys to determine whether T/E species were present. Before FEMA could allocate the resources to procure contracted services for completing the biological surveys, the Applicant completed the repair work. This action resulted in a termination of the consultation with FWS and prevented FEMA from ensuring that the work was completed in a manner that was consistent with FWS’s conditions. Therefore, the work is not eligible for Public Assistance funding.