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Second Appeal Brief
PA ID# 097-99097-00; Sonoma County
PW ID# 652; Cherry Creek Road
Citation: FEMA-1646-DR-CA, Sonoma County, Cherry Creek Road,
Project Worksheet (PW) 652Cross-reference:
Heavy rainfall and runoff caused erosion damage to four separate sites along Cherry Creek Road in Sonoma County. FEMA prepared PW 652 for $36,695 to replace a riprap rock buttress against the vertical washed out embankment section and to re-establish the shoulder and asphalt. FEMA determined that the Applicant completed the work prior to FEMA review for compliance with Section 7 of the Endangered Species Act (ESA). Therefore, FEMA obligated PW 652 for $0.
In a letter dated November 20, 2006, the Applicant submitted its first appeal stating that the Cherry Creek Road was the only means of ingress and egress for 50 residents and that the condition of the road threatened the life and safety of those traveling over it. The Applicant also explained that the repairs only consisted of filling the settled shoulder and lost paving with asphalt. There was no excavation. Finally, the Applicant asserted that the project site was located a mile and a half from the Russian River and, therefore, did not meet the criteria for permits. In a letter dated September 24, 2008, the Deputy Regional Administrator denied the appeal because FEMA could not ensure compliance with Section 7 of the ESA. In its second appeal, dated December 10, 2008, the Applicant stipulates that it complied with Section 7 of the ESA due to the nature of the permit that it obtained.
As a condition of Federal funding, applicants must meet environmental requirements prior to performing work. The Applicant has not provided documentation that it consulted with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. Therefore, FEMA cannot verify compliance with the ESA. Performing work to repair disaster-related damage to embankments and roads prior to consulting with U.S. Fish and Wildlife Services violates Section 7 of the ESA and is not eligible for Public Assistance funding.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