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Second Appeal Brief
PA ID# 039-21502-00; City of El Dorado Springs
PW ID# 737; Stone Arch Culvert
Citation: FEMA-1847-DR-MO, City of El Dorado, Stone Arch Culvert Replacement, Project Worksheet (PW) 737
Cross-Reference: Environmental Compliance
Summary: As the result of the severe storms and flooding event that occurred between May 8, 2009, and May 16, 2009, a portion of a 64-foot-long, historic stone arch culvert located at the end of a 1600-foot-long storm drain tunnel collapsed. The City of El Dorado Springs (Applicant) requested funding for the repair of disaster damage and for hazard mitigation measures. FEMA prepared PW 737 for the culvert repairs and included a hazard mitigation proposal (HMP) to replace the stone arch culvert. The federally endangered gray bat was located in the storm drain tunnel, and under Section 7 of the Endangered Species Act (ESA), the U.S. Department of the Interior, Fish and Wildlife Service (USFWS) recommended that work done in areas populated by the endangered Gray bat be done between October 1 and March 31 when bats are not in the area. The Applicant completed the work in May, when there were bats in the tunnel in direct violation of conditions established to avoid adverse effect to the endangered gray bat. USFWS was not willing to conduct Section 7 ESA consultation after-the-fact to quantify the level of adverse effect and determine if appropriate mitigation measures may be incorporated. Therefore, FEMA determined that the project was not eligible for funding and deobligated all previously approved funding ($30,264).The Applicant submitted a first appeal on claiming that the recommendation to conduct work between October 1 and March 31 from the USFWS was only a recommendation and not mandatory. The Applicant also provided a study to support its claim that the bat colony was still healthy. The FEMA Regional Administrator denied the Applicant’s first appeal concluding that in order to comply with the ESA, FEMA must ensure that any project funded under the Public Assistance program does not result in a “taking” of an endangered species, intentional or otherwise. The Applicant submitted its second appeal reiterating that the ESA’s recommendations were not requirements and that the work resulted in no negative impacts.
Issues: 1. Did the Applicant perform the work prior to FEMA consulting with the USFWS?
2. Did the Applicant follow the USFWS recommendations established to avoid adverse effect to the endangered Gray bat?
Findings: 1. Yes.
2. No. The Applicant completed work in the tunnel at a time when human disturbance has significant impact upon the Gray bat.
Rationale: Section 7 of the Endangered Species Act