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Second Appeal Brief
PA ID# 097-99097-00; Sonoma County
PW ID# 3509; Spring Lake Diversion Channel
Citation: FEMA-1628-DR-CA, Sonoma County, Spring Lake Diversion Channel,
Project Worksheet (PW) 3509Cross-reference:
Heavy rainfall and rising floodwaters deposited debris and silt in and around the Spring Lake Reservoir and diversion channel. As an emergency protective measure, the Applicant removed a six foot depth of debris from a 350-foot-long by 80-foot-wide area in the diversion channel. FEMA prepared PW 3509 for $309,093. Subsequently, FEMA determined PW 3509 ineligible because the Applicant completed the work prior to FEMA review for compliance with Section 7 of the Endangered Species Act (ESA).
In a letter dated May 7, 2007, the Applicant submitted its first appeal stating that prior to beginning the work; it applied for and received authorization under a Regional General Permit Number 5 (RGP 5) from the United States Corps of Engineers (USACE). On October 15, 2007, the Governors Office of Emergency Services (OES) forwarded additional information from the Applicant, including a copy of the Applicants application for a RGP 5 and a post-activity report as required by the RGP 5. In a letter dated September 19, 2008, the Deputy Regional Administrator denied the appeal because FEMA could not ensure compliance with Section 7 of the ESA. In its second appeal, submitted on November 21, 2008, the Applicant reiterates that it submitted the application for the RGP 5 from the USACE in an email dated January 12, 2006, and that it took appropriate steps to comply with Section 7 of the ESA.
Clearing the silt and debris deposited in the Spring Lake Reservoir and diversion channel prior to completing an environmental review violates Section 7 of the ESA, which requires an intensive botanical survey and consultation with U.S. Fish and Wildlife Service Arizona Ecological Services Office. As a condition of Federal funding, applicants must meet environmental requirements prior to performing work. Therefore, all emergency debris removal work related to the Spring Lake Reservoir and diversion channel is not eligible.Issues:
Must ESA Section 7 compliance occur prior to work?Findings:
Section 7 of the Endangered Species Act (ESA); National Environmental Policy Act (NEPA); 44 CFR §§10.410.8