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Tree View Trail

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1646-DR
ApplicantVilla Del Monte Mutual Water Company
Appeal TypeSecond
PA ID#087-UED05-00
PW ID#619
Date Signed2010-06-09T04:00:00

Citation:           FEMA-1646-DR-CA; Villa Del Monte Mutual Water Company

Cross-
Reference:
      Environmental Compliance

Summary:        Rainstorms from March 29, 2006, through April 16, 2006, eroded and caused slope failure to a 35-foot-wide to 50-foot-long section of Treeview Trail, a dirt and gravel access road.  FEMA prepared PW 619 for $148,375 to excavate 445 cubic yards (CY) of bedrock, backfill the area with 465 CY of structural fill and reconstruct the damaged Treeview Trail with Class 2 aggregate base.  The Villa Del Monte Mutual Water Company (Applicant) requested costs to excavate 1,161 CY of material, install 1,017 tons of rock revetment with grout and install a catch basin.  FEMA denied the Applicant’s request to increase funding on PW 619 to $292,480.  FEMA determined that the additional quantities of excavation and rock revetment and grouting went beyond the approved scope of work and that the original scope of work was sufficient to restore the disaster-related damages to pre-disaster condition.

In response to its first appeal, the Acting Regional Administrator approved the first appeal contingent upon FEMA conducting appropriate reviews to ensure compliance with applicable Federal environmental laws and regulations.  FEMA was unable to secure environmental clearance after the fact for the work performed by the Applicant.  The additional work performed would have required some level of modification, prior to construction, through consultation with resource agencies, which it could not implement once the work was completed.

 

Issues:             Did the Applicant complete the work prior to environmental compliance?


Findings:         Yes.

 

Rationale:       44 CFR Part 10, Environmental Considerations; Response and Recovery Policy 9560.1, Environmental Policy Memoranda, dated August 17, 1999

 

 

 

 

 

 

Appeal Letter

 

June 9, 2010

 

 

 

Frank McCarton

Governor’s Authorized Representative

California Emergency Management Agency

3650 Schriever Avenue

Mather, CA 95655

 

Re:    Second Appeal–Villa Del Monte Mutual Water Company, PA ID 087-UED05-00,

         Tree View Trail, FEMA-1646-DR-CA, Project Worksheet (PW) 619

 

Dear Mr. McCarton:

 

This is in response to the letter from your office dated October 6, 2009, which transmitted the referenced second appeal for Villa Del Monte Mutual Water Company (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $292,480 for repairs to Treeview Trail.

Background

Rainstorms from March 29, 2006, through April 16, 2006, eroded and caused slope failure to a 35-foot-wide by 50-foot-long section of Treeview Trail, a 12-foot- wide dirt and gravel access road.  The Applicant requested Public Assistance to repair the road.  FEMA prepared PW 619 for $148,375 to excavate 445 cubic yards (CY) of bedrock material, backfill the area with 465 CY of structural fill and reconstruct the road with Class 2 aggregate base.  PW 619 included a proposed mitigation measure to include a catch basin for $61,705 to drain storm runoff for the upper section of the access road down to Taylor Gulch Road to reduce potential road erosion and embankment failure in the future. 

On September 12, 2006, FEMA obligated PW 619 Version 0 for $34,573.  However, on September 25, 2006, FEMA obligated PW 619 Version 1 reinstating the original estimate of $148,375 plus $10,386 for mobilization costs.  When FEMA reinstated the funding, it inadvertently added the amount to the $34,573 in PW 619 Version 0 resulting in a total obligated amount of $193,334.  On October 3, 2008, the Applicant requested a total of $292, 40 to excavate 1,161 CY of material, install 1,017 tons of rock revetments with grout and install the catch basin.  The Applicant completed the expanded scope of work on December 18, 2008.  On January 7, 2009, FEMA denied the Applicant’s request for additional funding.  FEMA determined that the additional quantities of excavation and rock revetment and grouting went beyond the approved scope of work and that the original scope of work was sufficient to restore the road to its pre-disaster condition.  

In a letter dated July 2, 2009, FEMA notified the Applicant that it could not obtain approval for the project from the relevant environmental agencies because the Applicant completed a larger scope of work than was described in the initial PW.  Therefore, FEMA deobligated all funding for the project.  The Applicant appealed this determination in a letter dated August 14, 2009.  The Applicant asserts that it complied with all environmental/historic preservation requirements prior to starting the work.

Discussion

FEMA must perform environmental reviews in accordance with the National Environmental Policy Act and the Endangered Species Act before funding a project.  The Applicant completed the expanded project scope of work prior to FEMA reviewing the scope of work for environmental compliance.  The Applicant’s project may have affected at least one Federally listed endangered species.  In addition, the Applicant performed the work prior to implementing all of the conservation measures described in Appendices B and C of FEMA’s May 2006 Programmatic Biological Assessment for FEMA-funded disaster assistance projects in California.  The Applicant did not have a biological monitor present on-site during all activities related to the project, nor did the applicant implement standardized Best Management Practices, or take the species-specific conservation measures listed for the California red-legged frog, which included avoiding construction activities during breeding season.  Therefore, the work is not eligible for Public Assistance funding.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Applicant completed the project before FEMA conducted its environmental review of the project.  Therefore, I am denying the Applicant’s second appeal. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth A. Zimmerman

Assistant Administrator

Recovery Directorate

cc:  Nancy Ward

       Regional Administrator

       FEMA Region IX