Appeal Brief | Appeal Letter | Back
Second Appeal Brief
PA ID# 025-99035-00; Yavapai County
PW ID# Project Worksheets 40, 92, 94, and 207; Road Repair
Citation: FEMA-1586-DR-AZ, Yavapai County (Applicant), Road Repair, Project Worksheets (PWs) 40, 92, 94, and 207Summary:
Following severe flooding in February 2005, the Applicant contracted with Carson Construction for the repair of several gravel roads. When the work was almost complete, the Applicant discovered that one of the borrow sites used by the contractor had not been certified through the regulatory process to serve as a quarry. For this reason, on May 4, 2007, FEMA de-obligated all the funds from the PWs related to the contracted work. In its first appeal, the Applicant stated that not all of the material was extracted from the uncertified quarry, and that transportation and placement of the material, ditch cleaning, and concrete and pipe work are not related to the excavation. The Applicant requested funding for the material excavated from certified borrow pits and other road work. On December 14, 2007, the Deputy Regional Administrator partially approved the appeal, reinstating funding for work related to material excavated from certified quarries, ditch cleaning, and concrete and pipe work. However, funding was denied for all actions associated with the excavation of the uncertified borrow pit, including transportation and placement of the material, because FEMA was unable to comply with the National Environmental Policy Act (NEPA).
In its second appeal, dated March 5, 2008, the Applicant requests $331,030 and states that FEMA de-obligated funding for items that do not fall within the scope of NEPA (transporting and placing rocks). The Applicant also notes that biological and archaeological reports prepared for Carson Construction conclude that there was no adverse environmental impact from the excavation. However, scientists performing an archaeological and biological reconnaissance of the borrow pit site for FEMA identified a small prehistoric archeological site next to the excavated pit and discovered potential habitat for the endangered Arizona cliffrose. Excavation of the site prior to an environmental and historic preservation review violates Section 106 of the National Historic Preservation Act (NHPA) and Section 7 of the Endangered Species Act (ESA).Issues:
1. Must NEPA compliance occur prior to work?
2. Are the transportation and placement of road repair materials eligible for funding if the materials originated in an uncertified borrow pit? Findings:
Section 106 of the NHPA; Section 9(a) of the Archaeological Resources Protection Act; Section 7 of the ESA; NEPA; 44 CFR §§10.410.8; 40 CFR Part 1500; 44 CFR Part 13