Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 069-99069-00; Houston County
PW ID# 735, 738, 739, and 772; Environmental Compliance
Citation: FEMA-1835-DR-AL; Houston County; Environmental Compliance; PWs 735, 738, 739, and 772
Reference: Environmental Compliance
Summary: Flooding from severe storms between March 25 and April 28, 2009, scoured the pilings and abutments of several of Houston County’s (Applicant) bridges. On July 15-16, 2009, FEMA prepared PWs 735, 738, 739, and 772 for a total of $294,609 to repair the damaged bridges. On June 24, 2009, the U.S. Department of the Interior’s Fish and Wildlife Service (FWS) had informed FEMA Region IV that projects at stream crossings have the potential to affect threatened or endangered (T/E) species or their habitats, and provided guidance on techniques and alternatives for improving pre-flood conditions. In four letters, FEMA provided FWS with the scopes of work, maps, and photographs of each of the projects documented with the referenced PWs and requested a determination on the levels of consultation required under Section 7 of the Endangered Species Act (ESA). FWS responded that the due to the proximity of the project sites to known critical habitat for several fresh water mussels and clams, surveys for the likely T/E species were necessary to determine the appropriate levels of consultation. Generally, FEMA uses contracted environmental services to perform biological surveys; however, a freeze on the Disaster Relief Fund that restricted funding to only emergency work prevented FEMA from procuring the services to complete the surveys. About 16 months after the preparation of the PWs, the Applicant completed the scopes of work at a total cost overrun of $130,279. When FEMA notified FWS on August 10, 2011, that the work was completed but the surveys were not, FWS replied that it does not engage in consultation on completed projects and could not provide after the fact authorization. FEMA completed the reviews on the PWs on November 3, 2011, and notified the Alabama Emergency Management Agency that the projects were ineligible for funding because they were not compliant with ESA. The Applicant appealed, claiming that not only did FEMA fail to inform the Applicant as to why the PWs were undergoing review for nearly 28 months, but that consultation with FWS under the ESA was unnecessary because the scopes of work did not change the facilities’ footprints. FEMA denied the appeal stating that all actions that may affect T/E species or critical habitat must adhere to the requirements of the ESA. In a second appeal, the Applicant reiterated that FEMA’s pursuit of ESA consultation was inconsistent with guidance from FWS and FEMA on repairs to pre-disaster condition, and that FEMA never notified the Applicant that a biological survey was required before work could commence.
Issue: Can FEMA fund projects for which consultation on ESA was not completed?
Rationale: Title 44 Code of Federal Regulations Part 10, Environmental Considerations; Endangered Species Act (ESA) Sections 7 and 9