Brannan-Andrus Levee

May 13, 2008

Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal–Brannan-Andrus Levee Maintenance District
PA ID 067-UD6VE-00, Brannan-Andrus Levee, FEMA-1628-DR-CA
Project Worksheet (PW) 3003

Dear Mr. Jacks:

This letter is in response to your letter dated October 29, 2007, transmitting the referenced Brannan-Andrus Levee Maintenance District (Applicant) second appeal. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for repair work on the Brannan-Andrus Levee because the work was completed without environmental review as required by the Endangered Species Act (ESA).

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 Levees. FEMA prepared PW 3003 for permanent work associated with the repair/replacement of approximately 360 tons of rip-rap and 12,621 tons of engineered stone estimated at $488,412. FEMA obligated PW 3003 at $0 because the Applicant’s levees were not in compliance with the State’s Flood Hazard Mitigation Plan (HMP) requirements for levee height.

In its first appeal dated October 30, 2006, the Applicant provided evidence that the levees met the HMP requirements. In a letter dated May 2, 2007, the Deputy Regional Administrator denied the appeal. The Deputy Regional Administrator determined that the Applicant was in compliance with the HMP. However, if a project has the potential to affect a threatened or endangered species or its habitat, FEMA must consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (NMFS), or both, before approving funding for that project. Since the work was completed, the NMFS would not consult with FEMA for ESA compliance. The Deputy Regional Administrator determined that without environmental consultation, the project was non-compliant with the ESA and, thereby ineligible for Public Assistance funding.

In a letter dated August 17, 2007, the Applicant submitted its second appeal. The Applicant indicated that it contacted the NMFS and scheduled an inspection in November 2007. The Applicant stated it would forward the results of that scheduled inspection to FEMA as
documentation that it complied with the ESA. However, there was no certification from NMFS in the documentation provided. The Applicant also stated that the scope of work covered in PW 3003 was statutorily excluded under the National Environmental Policy Act (NEPA) because there was no in-water construction activity. The ESA and the NEPA are distinct laws with individual regulations and requirements. Even if a project is exempt from compliance with NEPA, FEMA must comply with the ESA before funding can be provided for that project. We have reviewed all information submitted with the appeal, and have determined that the Deputy Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Administrator
FEMA Region IX