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Second Appeal Brief
PA ID# 111-99111-00; Ventura County
PW ID# 3133; Piru Disposal Site
Citation: FEMA-1577-DR-CA, Ventura County, Piru Disposal Site
Cross-Reference: Environmental Compliance, Improved Project
Summary: Heavy rains and flooding occurring from December 27, 2004, through January 11, 2005, eroded approximately 1,000 linear feet of the perimeter embankment along the Santa Clara River at the Piru Disposal Site in Ventura County. FEMA approved $659,553 with PW 3133 to restore 992 linear feet of eroded embankment by cutting the embankment back to a 2:1 slope and hardening the slope with riprap. Ventura County (Applicant) requested additional work that exceeded the scope of work necessary to restore the embankment, including construction of three rock groins and an extensive amount of excavation and backfill. However, FEMA informed the Applicant that it should submit a request for an improved project if it decided to proceed with work that exceeded the scope of eligible work documented and approved with PW 3133. The Applicant began construction in July 2010, and subsequently submitted a request for an improved project on October 28, 2010. The FEMA Regional Administrator denied the request and de-obligated $659,553, because the National Marine Fisheries Service would not re-initiate consultation on the project because the work was already accomplished. As a result, FEMA was not able to obtain after-the-fact project clearance. In its first appeal, the Applicant stated that the project, as constructed, was within the scope of work included in both the USFWS and NMFS concurrences and did not require further consultation. The FEMA Regional Administrator denied the first appeal on January 5, 2012, stating that the project, as constructed, exceeded the scope of work approved with PW 3133 and did not meet the conditions of the original NMFS concurrence because “construction activities were conducted outside of the dry season and water diversion was necessary.” The Applicant submitted its second appeal on November 5, 2012, reiterating its position in the first appeal.
Issues: 1. Did the Applicant submit its second appeal within 60 days of notification of FEMA’s denial of the first appeal?
2. Did the Applicant request approval for an improved project prior to initiating construction to allow FEMA to perform and environmental review of the revised scope of work?
Findings: 1. No.
Rationale: 44 CFR §206.206 Appeals; 44 CFR §206.203 Federal Grant Assistance; Environmental Policy Memo #3, Policy for Projects Initiated Without Environmental Review Required by the National Environmental Policy Act (NEPA), dated May 3, 1996; The Public Assistance Guide, FEMA 322, dated June 2007