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Second Appeal Brief
PA ID# 067-UD6VE-00; Brannan-Andrus Levee Maintenance District
PW ID# Project Worksheet 3003; Brannan-Andrus Levee
FEMA-1628-DR-CA, Brannan-Andrus Levee Maintenance DistrictCross-reference:
The storms and heavy rains from December 27, 2004, through January 11, 2005, caused flooding and wind/wave driven erosion and sloughing of rip-rap at 23 sites on the Brannan-Andrus Levee. The Brannan-Andrus Levee Maintenance District (Applicant) requested funding for permanent work associated with the repair/replacement of approximately 360 tons of rip-rap and 12,621 tons of engineered stone. FEMA determined the funding was ineligible since the facility had not met the States Flood Hazard Mitigation Plan (HMP) requirements.
In its first appeal, the Applicants produced survey information that its levees complied with the HMP. However, the Deputy Regional Administrator denied the appeal because the project was non-compliant with the Endangered Species Act (ESA) and, thereby ineligible for Public Assistance funds.
In its second appeal the Applicant argued that it was statutorily exempt from National Environmental Policy Act (NEPA) review. Even if that were the case, the Applicant produced no evidence that it carried out the ESA required pre-notification or afforded FEMA the opportunity to satisfy ESA requirements before proceeding with the actual work. Issues:
1. Is work exempt from Endangered Species Act?Findings:
44 CFR §10.8c; Response and Recovery Policy 9560.1, Environmental Policy Memoranda