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Stone Arch Culvert

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre1847-DR-MO
ApplicantCity of El Dorado Springs
Appeal TypeSecond
PA ID#039-21502-00
PW ID#737
Date Signed2014-01-17T00:00:00

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

Appeal Letter

January 17, 2014

Tim Diemler
Acting Director
State of Missouri Emergency Management Agency
2302 Militia Drive
P.O. Box 116
Jefferson City, Missouri 65102

Re: Second Appeal – City of El Dorado Springs, PA ID 039-21502-00, Stone Arch Culvert, FEMA-1847-DR-MO, Project Worksheet (PW) 737

Dear Mr. Diemler,

This is in response to a letter from your office dated June 10, 2013, transmitting the referenced second appeal on behalf of the City of El Dorado Springs (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) deobligation of $30,264 in funding for damage to a stone arch culvert.

As explained in the enclosed analysis, I have determined that the Applicant performed the work contrary to recommendations made by the U.S. Fish and Wildlife Service to avoid adverse effects on the near-by established colony of endangered Gray bats.  Therefore, I am denying the appeal.

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to Title 44 of the Code of Federal Regulations (44 CFR) §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

Enclosure

cc:  Beth Freeman
      Regional Administrator
      FEMA Region VII


 

Appeal Analysis

Background

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 under Jackson Street in the City of El Dorado Springs collapsed.  The stone arch culvert was located at the end of a 1600-foot-long storm drain tunnel.  The City of El Dorado Springs (Applicant) requested funding for the repair of disaster damage and for hazard mitigation measures.  FEMA prepared Project Worksheet (PW) 737 for the culvert repairs and included a hazard mitigation proposal (HMP) to replace the stone arch culvert with a concrete box culvert.  Following discussions with the Applicant regarding the HMP, FEMA prepared a revised HMP for the installation of a similarly sized corrugated metal pipe (CMP) and faxed it to the Applicant on January 14, 2010.  A colony of endangered gray bats 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, including the installation of the CMP in May 2010, prior to FEMA approval of PW 737 and the revised HMP. 

FEMA approved the PW, including the original HMP, on August 18, 2010, for $41,682.  Subsequently, FEMA prepared an amendment to the PW to deduct $11,419 to adjust the eligible hazard mitigation cost; however, FEMA did not address the change from concrete box culvert to CMP. 

During FEMA’s review of the Applicant’s request for project closeout, FEMA acknowledged the change from concrete box culvert to CMP and included the cost of the installation of the CMP in the total eligible cost of PW 737.  Because the Applicant completed the revised HMP prior to receiving official approval from FEMA, FEMA environmental staff asserted that FEMA was not afforded the opportunity to fulfill federal obligations under Section 106 of the National Historic Preservation Act as FEMA would have been required to raise the level of National Environmental Policy Act analysis and documentation had it been aware of the scope change.  Due to the adverse impacts to federally listed endangered species and historic structures, FEMA would have had to conduct an Environmental Assessment. 

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).

First Appeal

On February 15, 2013, the Applicant submitted a first appeal of FEMA’s deobligation of $30,264. With its first appeal, the Applicant submitted information that was not provided at closeout that helped to clarify the intent of the State Historic Preservation Officer (SHPO).  The Applicant provided a copy of a letter dated October 8, 2009, from the Applicant to SHPO requesting approval of a change in materials. SHPO responded on October 19, 2009, indicating a finding of “no adverse effect on the historic fabric of the Storm Drain System.”  SHPO approved the use of modern materials, but the Applicant did not transmit this information to FEMA until first appeal.  Further, the Applicant also claimed that the recommendation to conduct work between October 1, 2009, and March 31, 2010, from the USFWS was only a recommendation and not mandatory requirement. The Applicant also provided a study to support its claim that the bat colony was still healthy after the Applicant completed the culvert replacement.

The FEMA Regional Administrator denied the Applicant’s first appeal on March 21, 2013, 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 tunnel where the work was completed is a summer habitat of the endangered Gray bat.  The Gray bat has a maternity season of late May to early June.  This species is very susceptible to human disturbance during maternity season and the weeks following any births.  The Regional Administrator held that because the Applicant conducted the work during a time when bats were present in the tunnel the work violated the ESA and FEMA cannot fund the work.

Second Appeal

The Applicant submitted its second appeal on May 29, 2013.  The Applicant asserts that it substantially complied with the USFWS letter.  In support of its second appeal, the Applicant includes information from two studies; both attesting to the health of the bat colony after the Applicant completed the culvert replacement. The Applicant also states that the USFWS allowed it to perform work in the same tunnel to address a safety hazard while the bats were present in 2008 and that the work described in PW 737 was completed further away from the endangered Gray bat habitat than the work performed in 2008.  The Applicant includes a letter from the USFWS dated June 26, 2008, and states that it consulted with the USFWS again by phone regarding the replacement of the stone arch.  The Applicant informed the USFWS that a safety issue existed, because in July 2009, a 14-year-old boy fell and was injured in the tunnel.  The Applicant claims that the USFWS stated that its June 2008 letter that gave Applicant permission to work in the tunnel between October 1, 2009, and March 31, 2010, was still valid.  Further, the Applicant maintains that even if the USFWS had not given permission to do the work between October 1, 2009, and March 31, 2010, the USFWS had only recommended, not required, that work be performed outside of that timeframe.  Lastly, the Applicant refers to delays in FEMA’s PW approval process and miscommunication regarding the eligibility of the installation of the CMP as reasons why the Applicant did not initiate construction until early 2010. 

Discussion

According to Section 7(a)(2) of the ESA, “each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species…”  While delays and miscommunication did occur during the PW approval process, FEMA is required to consult with USFWS and was not able to meet this requirement because the Applicant performed the work prior to FEMA completing the consultation.  The USFWS declined to consult on the project after-the-fact.

The issue in this case is not that FEMA was not afforded the opportunity to initiate further consultation with the USFWS to address the change in scope of work from replacing the stone arch culvert with a concrete box culvert to replacing it with a CMP.  It appears as though FEMA mistakenly approved PW 737 without first consulting with the USFWS on the scope of the initial HMP.  Regardless, the Applicant was well aware of the restriction on performing work during the gray bat maternity season and used the previously mentioned accident to justify its choice to begin work when it did.

If the Applicant had informed FEMA of the need to complete the work during that time frame, FEMA may have had the opportunity to consult with the USFWS prior to the start of work and some other mitigation or treatment measures may have been considered.  For example, if the only available time to perform the work was during the restricted timeframe, with proper consultation, the tunnel could have been sealed or boarded up prior to the occupancy of the Gray bat, so that the migratory Gray bat would establish their summer habitat elsewhere, thus allowing the work to be done outside the appropriate window.

The Applicant performed the work during that time period when it was dangerous to the endangered pregnant Gray bats and their offspring, asserting that it had the permission of the USFWS based on the July 2008 letter.  The letter from the USFWS addressed “shoring up” a section of the tunnel wall, not a major culvert replacement project. The Applicant also maintains that the 2010 work was further away from the bat colony than the 2008 project.  Again, in 2008, the work performed was the emergency “shoring up” of the tunnel that was done under emergency conditions and emergency consultation procedures. In dispute is the complete replacement of the stone arch with a CMP, which is a significantly more substantial project with the potential for greater disturb the Gray bat habitat.

The Applicant claims that the culvert replacement did not negatively impact the bat colony and provides two reports in support of its claim, one from a bat specialist and one from the Missouri Department of Conservation.  Both reports conclude that the Gray bat colony in the tunnel is thriving and that its numbers have increased based on observations made two to three years after the Applicant completed the culvert replacement.  The observations summarized in the reports cannot be used to conclude that the work did not negatively impact the bat colony at the time it was performed or did not result in a “taking” of an endangered species.

Conclusion

The Applicant completed work in the tunnel at a time when human disturbance has a significant impact upon the endangered Gray bat in violation of a recommendation from the USFWS.  The Applicant completed the work without informing FEMA of its intent to perform the work after March 31, 2010, and FEMA did not consult with the USFWS to evaluate measures to mitigate the potential impacts.  Because the Applicant performed the culvert replacement during the maternity season of the endangered Gray bat, the replacement of the culvert is ineligible for funding.