Clark Water Treatment Plant
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1155-DR-CA; June Lake Public Utility District, Clark Water Treatment Plant, DSR 93427
Cross Reference: Improved Project, NEPA Compliance
Summary: As a result of the 1997 winter storms, a rock slide occurred in the banks adjacent to Fern Creek, upstream from the Clark Water Treatment Plant intake structure and diversion sluice. The slide mass completely engulfed the diversion approach channel, sluice structure, and intake flume, and redirected the creek flow away from the intake structure. The subgrantee utilized its alternate water supply source (Peterson Plant) to supply water to the fulltime population during the Clark Plant repairs. The June Lake area is predominately a seasonal community such that the Peterson Plant capacity was considered sufficient for the fulltime residents until the tourist season began in April. Repairs of the Clark Plant began immediately to relieve the delivery burden on the Peterson Plant and to complete the work in time for the summer residents and businesses. The site inspection was performed on April 14, 1997, when the work was virtually complete. During conduct of the repair, numerous modifications and improvements to the facility were performed. FEMA concluded that the completed work was an improved project for which FEMA was not provided the opportunity to complete the necessary NEPA reviews. FEMA prepared Category F DSR 93437 to address the repair work, but concluded the work was ineligible. The subgrantee's first appeal asserted that the work was not an improved project as it did not increase the capacity of the facility, and that the work was performed in response to an emergency situation such that NEPA review was not required. The Regional Director upheld the earlier determination of ineligibility. The subgrantee's second appeal restates these positions, reviewing the circumstances under which the project was executed to demonstrate the urgency associated with returning the plant to operation by the April tourist season.
Issues:
As a result of the early 1997 winter storms (FEMA-1155), on or about January 2, 1997, a rock slide occurred in the banks adjacent to Fern Creek, upstream from the Clark Water Treatment Plant intake structure and diversion sluice. The slide mass completely engulfed the diversion approach channel, 5 ft. long, 4 ft. wide, and 4 ft. deep sluice structure and 40 ft. intake flume. Additionally, the slide mass redirected the creek flow to a new route to the east of the intake structure, isolating the diversion sluice. On April 14, 1997, an inspection team consisting of representatives from the Federal Emergency Management Agency (FEMA), the California Governor's Office of Emergency Services (OES), and June Lake Public Utility District (subgrantee) visited the site to observe the disaster-related damages. At the time of the inspection, all repairs to the facility were complete.
The June Lake Public Utility District has two sources of water supply, the Clark Water Treatment Plant (damaged facility) providing 70 percent of the annual requirements, and the Peterson Water Treatment Plant providing the additional 30 percent. In response to the damages to the Clark Water Treatment Plant, the subgrantee utilized the Peterson Plant to supply water to the current resident population. The June Lake area is predominately a seasonal community such that the Peterson Plant capacity was considered sufficient for the year-round residents until the tourist season began in April. Several days after the failure, the June Lake Public Utility District Board of Directors concluded that the District could experience real trouble should the Peterson Plant fail while the Clark Plant was out of operation, particularly for fire protection purposes. Additionally, there was great concern for quickly restoring full water supply to accommodate the tourist population influx. The Board declared this an emergency and entered into a time and materials agreement with a local contractor to get the Clark System back in operation as quickly as possible. Specific efforts were made to complete the work in time for the summer residents and businesses. The facility was returned to service on April 22, 1997.
Based on information provided by the subgrantee at the site inspection, it was found that the subgrantee had completed the work to remove all debris, clear the access road of snow, repair the access road, and rebuild the diversion, weir, and sluice gate. Additionally, during the disaster repair effort, the subgrantee decided to extend the flume an additional 100 ft. upstream, made modifications to the filter tank, construct a new intake collection pool retaining wall, install a 48-in. CMP with a canal gate for intake service and a 60-in. CMP with a canal gate for the diversion, and extend the access road.
The FEMA inspector noted the extensive modifications to the original design and determined that the eligible scope of work should be limited to rebuilding the facility to its original configuration. The FEMA inspector prepared Category F Damage Survey Report (DSR) 93437 in the amount of $50,035. It was suggested that other improvements could possibly be considered as Hazard Mitigation. During eligibility review, however, FEMA concluded that the modifications made to the facility were significant such that the project was considered an improved project. It was noted that the subgrantee did not request the required prior approval from the State or FEMA for these improvements. An environmental review was conducted for the completed work and it was concluded that due to the extensive modifications to the project, and the lack of evidence of an emergency situation, that the project was not eligible for a statutory or categorical exclusion from the environmental review process required by the National Environmental Policy Act (NEPA). The project was found ineligible for funding. Both OES and the subgrantee non-concurred with this determination, stating that the work was performed under emergency conditions and should be exempt from NEPA review.
First Appeal
The subgrantee submitted a first appeal of FEMA's determination of ineligibility, transmitted and supported by OES in a letter dated March 20, 1998. The subgrantee and OES asserted that the repair efforts were performed in response to a threat by fire due to the loss of reserve water supply, a threat to health if the Peterson System failed for any reason, and a threat of severe economic loss if the Clark System could not be restored by mid-April (tourist season). The subgrantee states that the work was performed under emergency guidelines of the USFS. Therefore, the subgrantee and OES concluded that the project was exempt from NEPA review, but that they did work closely with United States Forest Service (USFS) and the California Environmental Quality Act (CEQA) on certain environmental issues. Further, the applicant stated that the repair had to be altered from its pre-disaster design due to the relocation of the creek from the slide mass and the continuation of heavy snow storms and cold winter temperatures, but that it did not increase the capacity of the facility such that the project should not be considered an improved project. The subgrantee requested the full cost of the repair, $168,537, be considered eligible for funding.
The Regional Director denied the first appeal in a letter dated October 20, 1998. The response stated that the subgrantee completed the project without officially notifying FEMA prior to performing the work, which did not allow the project to be considered for NEPA review. Review of the available information again concluded that the subgrantee has not established that the project was necessary to prevent any immediate threat as the fulltime residents of the community were able to receive sufficient water service from the Peterson Plant. Further, it was stated that the emergency exemption provided by the USFS does cover the additional work performed at the site, nor does it offer any determining justification to reverse FEMA's decision to deny funding.
Second Appeal
The subgrantee submitted a second appeal, transmitted and supported by OES in a letter dated February 10, 1999. The subgrantee's letter questions FEMA's reasoning in funding Category A and B DSRs for this project for the removal of debris, emergency road construction and snow removal, while not recognizing the continued threat relative to restoring the plant facility. The subgrantee does not agree that sufficient time was available to perform a NEPA review by FEMA and still have the plant operational for the tourist season. The subgrantee's appeal reviewed the circumstances under which the project was executed to demonstrate the urgency associated with returning the plant to operation by the April tourist season.
DISCUSSION
The primary issues of the appeal are associated with the determination of whether the completed work should be considered emergency work, whether the completed work constitute an improved project, and whether a NEPA review was required prior to project approval. The subgrantee asserts that the completed scope of work did not require a NEPA review because the work performed was in response to an immediate threat and that the completed scope only restored the site to its pre-disaster condition. It is their opinion that no improvements were made.
Immediate Threat
The subgrantee asserts that the repair efforts were performed in response to a threat by fire due to the loss of reserve water supply, a threat to health if the Peterson System failed for any reason, and a threat of severe economic loss if the Clark System could not be restored by mid-April (tourist season). On this basis, the subgrantee concludes that an bency work.
FEMA agrees that the loss of the Clark System posed a threat to the water supply for the community. However, the intent of emergency work funding is to provide emergency protective measures to reduce the defined threat until permanent repairs can be made. In response to the failure of the Clark System, the subgrantee received permission to utilize the Peterson Plant at capacity, providing sufficient water supply and fire protection to the fulltime residents of the community. Accordingly, the use of the Peterson Plant water supply is considered a sufficient emergency measure to advert the threat posed by the disaster.
The subgrantee's appeal letters confirm that the Peterson Plant was sufficient for this emergency purpose but stresses their concern relative to providing the increased demand for the summer months. Their letter states "While it was felt that the Peterson Plant might, in an emergency, be used to supply the needs of those at June Lake during the winter months, the Peterson Plant was not capable of supplying safe drinking water for the normal influx of additional home owners and visitors that traditionally make June Lake their Summer and Spring destination." It should be understood that emergency protective measures are only eligible to advert a potential threat which cannot otherwise be controlled - such as providing water supply to persons who rely on the facility for their primary source of water. Additional measures to accommodate temporary, non-critical use of a site, such as the seasonal populations, are not eligible as emergency work.
Additionally, the subgrantee's letter questions FEMA's reasoning in funding Category A and B DSRs for this project while not recognizing the continued threat relative to restoring the plant facility. As described above, FEMA may provide funding for emergency measures to advert or lessen an immediate threat. The scopes of work described in the Category A and B DSRs, that being removal of debris, emergency road construction and snow removal, is consistent with this intent. However, the intent of emergency work is not to provide full permanent restoration of the facility. Once the threat is adverted, which in this case was done by utilizing the Peterson Plant, permanent repairs may be performed. Based on the information provided, the scope of work performed in DSR 93437 is considered to be permanent restoration of the facility, rather than providing work consistent with the intent of emergency protective measures.
Finally, it is noted that the subgrantee suggests that the work was performed in an emergency situation because they wanted to complete the work prior to the tourist season. They described the financial impact the loss of tourism would have on their community. However, Title 44 of the Code of Federal Regulations (44 CFR) 206.225(a) states that only emergency protective measures necessary to save lives, to protect public health and safety, and to protect improved property are eligible as emergency work. Additional efforts performed in the interest of community economy are not eligible as emergency work. Additionally, it is the subgrantee's opinion that had they gone through contract procurement procedures as required for permanent work, or initiated an environmental review, they would not have been able to complete the work on-time. Such circumstances, however, do not meet the criteria for emergency work projects as described above, nor release the subgrantee from environmental requirements.
Therefore, FEMA is unable to consider this work as emergency in nature. Accordingly, this scope of work would not qualify for an exemption from NEPA review as emergency work.
Permanent Restoration
Based on the analysis described above, the work performed at the site is considered to be permanent restoration as was originally intended in DSR 93437. The subgrantee asserts that some of the modifications made to the pre-disaster design were necessary to accommodate the relocation of the creek from the slide mass and the continuation of heavy snow storms and cold winter temperatures, but that it did not increase the capacity of the facility such that the project should not be considered an improved project. Although the overall function and capacity of the facility may have remained the same, some of the work performed, not required due to the configuration of the stream, is agreed to be improvements to the pre-disaster design of the facility. Because these work items were performed at the same time and by the same contractual efforts as the approved scope of work, all work items are considered one project. On this basis, the completed project constitutes an improved project. FEMA regulations (44 CFR 206.203(d)(1)) requires that the State's approval must be obtained for improved projects prior to construction. It is noted that the subgrantee did not request approval for this additional scope of work from either the State or FEMA.
NEPA
In addition to the requirement that the State review and approve improved projects, FEMA must also review such projects to ensure completion of the appropriate environmental and historic reviews. The National Environmental Policy Act (NEPA) requires every Federal agency to follow a specific planning and evaluation process to ensure that agency decision-makers and local governments have considered, and the general public is fully informed about, the environmental consequences of a Federal action. This review and consultation process is used to evaluate the impact a project and its alternatives may have on the environment. The process must be completed prior to obligating funds and beginning work. FEMA's regulations regarding NEPA can be found in 44 CFR, Part 10.
FEMA's policy for implementing the requirements of NEPA are outlined under Environmental Policy Memo #3, dated March 24, 1995, which states that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for disaster assistance funding. The Stafford Act provides a statutory exclusion to these requirements for emergency debris removal and emergency protective work, or for an action which restores a facility substantially to its condition prior to the disaster. As described in the above analysis, the completed work does not meet the criteria of eligible emergency protective work and it does change the pre-disaster design of the overall site. Further environmental review performed for this appeal analysis has found that although portions of the work may have been necessary to restore the site, some environmental review would have been required for the completed work. In particular, due to the actions such as working within a channel, portions of which were undamaged by the slide, and modifying the intake and discharge flow within the stream by the new culverts, certain environmental reviews would have been required to evaluate the impact and possible alternatives of these actions on the channel. These conclusions have been reviewed and supported by the FEMA Regional Environmental Officer. Accordingly, it is found that there is no statutory or categorical exclusion that would permit us to fund the work at issue in compliance with applicable environmental laws. Accordingly, FEMA may not fund any portion of the completed work.
Other Issues
Other issues have been raised by FEMA regarding the conduct of this work, including proper procurement procedures and failure to request an improved project status or to notify the State of a significant change in work. However, because the scope of work is denied on the basis of not performing the necessary environmental reviews (NEPA process), further comment regarding these other issues in not warranted for this analy a red by the subgrantee, it is concluded that the completed work does not meet the criteria of eligible emergency work, and that as permanent work, the expanded scope of work completed by the subgrantee constitutes an improved project. The subgrantee's failure to notify the State or FEMA of the proposed improvements consequently prevented FEMA from completing the necessary NEPA requirements for the project. Accordingly, FEMA cannot fund any portion of the completed work. The subgrantee's appeal is denied.
Appeal Brief
| Disaster | FEMA-1155-DR |
| Applicant | June Lake Public Utility District |
| Appeal Type | Second |
| PA ID# | 051-91002 |
| PW ID# | 93437 |
| Date Signed | 1999-08-13T04:00:00 |
Cross Reference: Improved Project, NEPA Compliance
Summary: As a result of the 1997 winter storms, a rock slide occurred in the banks adjacent to Fern Creek, upstream from the Clark Water Treatment Plant intake structure and diversion sluice. The slide mass completely engulfed the diversion approach channel, sluice structure, and intake flume, and redirected the creek flow away from the intake structure. The subgrantee utilized its alternate water supply source (Peterson Plant) to supply water to the fulltime population during the Clark Plant repairs. The June Lake area is predominately a seasonal community such that the Peterson Plant capacity was considered sufficient for the fulltime residents until the tourist season began in April. Repairs of the Clark Plant began immediately to relieve the delivery burden on the Peterson Plant and to complete the work in time for the summer residents and businesses. The site inspection was performed on April 14, 1997, when the work was virtually complete. During conduct of the repair, numerous modifications and improvements to the facility were performed. FEMA concluded that the completed work was an improved project for which FEMA was not provided the opportunity to complete the necessary NEPA reviews. FEMA prepared Category F DSR 93437 to address the repair work, but concluded the work was ineligible. The subgrantee's first appeal asserted that the work was not an improved project as it did not increase the capacity of the facility, and that the work was performed in response to an emergency situation such that NEPA review was not required. The Regional Director upheld the earlier determination of ineligibility. The subgrantee's second appeal restates these positions, reviewing the circumstances under which the project was executed to demonstrate the urgency associated with returning the plant to operation by the April tourist season.
Issues:
- Was the work performed in response to an emergency situation?
- Does the completed scope of work constitute an improved project?
- Is the improved project eligible for funding?
- No. The work performed does not meet the criteria of eligible Emergency Work.
- Yes. The completed work changed the pre-disaster design of the facility.
- No. The subgrantee's completion of the work prior to FEMA review prevented FEMA from completing the necessary NEPA requirements for the project. FEMA cannot fund any portion of the work.
Appeal Letter
August 13, 1999
D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
RE: Second Appeal - June Lake Public Utility District, Clark Water Treatment Plant, FEMA-1155-DR-CA, DSR 93437
Dear Mr. Christian:
This letter is in response to the referenced second appeal transmitted by your letter dated February 10, 1999. The subgrantee is requesting funding for the completed repair of the Clark Water Treatment Plant intake facility.
As explained in the enclosed analysis, it is concluded that the completed work does not meet the criteria of eligible emergency work, and that as permanent work, the expanded scope of work completed by the subgrantee, constitutes an improved project. The subgrantee's failure to notify the State or the Federal Emergency Management Agency (FEMA) of the proposed improvements prior to their completion consequently prevented FEMA from completing the necessary National Environmental Policy Act (NEPA) requirements for the project. Accordingly, FEMA cannot fund any portion of the completed work. The subgrantee's appeal is denied.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Martha Whetstone
Regional Director
FEMA Region IX
D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
RE: Second Appeal - June Lake Public Utility District, Clark Water Treatment Plant, FEMA-1155-DR-CA, DSR 93437
Dear Mr. Christian:
This letter is in response to the referenced second appeal transmitted by your letter dated February 10, 1999. The subgrantee is requesting funding for the completed repair of the Clark Water Treatment Plant intake facility.
As explained in the enclosed analysis, it is concluded that the completed work does not meet the criteria of eligible emergency work, and that as permanent work, the expanded scope of work completed by the subgrantee, constitutes an improved project. The subgrantee's failure to notify the State or the Federal Emergency Management Agency (FEMA) of the proposed improvements prior to their completion consequently prevented FEMA from completing the necessary National Environmental Policy Act (NEPA) requirements for the project. Accordingly, FEMA cannot fund any portion of the completed work. The subgrantee's appeal is denied.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Martha Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDAs a result of the early 1997 winter storms (FEMA-1155), on or about January 2, 1997, a rock slide occurred in the banks adjacent to Fern Creek, upstream from the Clark Water Treatment Plant intake structure and diversion sluice. The slide mass completely engulfed the diversion approach channel, 5 ft. long, 4 ft. wide, and 4 ft. deep sluice structure and 40 ft. intake flume. Additionally, the slide mass redirected the creek flow to a new route to the east of the intake structure, isolating the diversion sluice. On April 14, 1997, an inspection team consisting of representatives from the Federal Emergency Management Agency (FEMA), the California Governor's Office of Emergency Services (OES), and June Lake Public Utility District (subgrantee) visited the site to observe the disaster-related damages. At the time of the inspection, all repairs to the facility were complete.
The June Lake Public Utility District has two sources of water supply, the Clark Water Treatment Plant (damaged facility) providing 70 percent of the annual requirements, and the Peterson Water Treatment Plant providing the additional 30 percent. In response to the damages to the Clark Water Treatment Plant, the subgrantee utilized the Peterson Plant to supply water to the current resident population. The June Lake area is predominately a seasonal community such that the Peterson Plant capacity was considered sufficient for the year-round residents until the tourist season began in April. Several days after the failure, the June Lake Public Utility District Board of Directors concluded that the District could experience real trouble should the Peterson Plant fail while the Clark Plant was out of operation, particularly for fire protection purposes. Additionally, there was great concern for quickly restoring full water supply to accommodate the tourist population influx. The Board declared this an emergency and entered into a time and materials agreement with a local contractor to get the Clark System back in operation as quickly as possible. Specific efforts were made to complete the work in time for the summer residents and businesses. The facility was returned to service on April 22, 1997.
Based on information provided by the subgrantee at the site inspection, it was found that the subgrantee had completed the work to remove all debris, clear the access road of snow, repair the access road, and rebuild the diversion, weir, and sluice gate. Additionally, during the disaster repair effort, the subgrantee decided to extend the flume an additional 100 ft. upstream, made modifications to the filter tank, construct a new intake collection pool retaining wall, install a 48-in. CMP with a canal gate for intake service and a 60-in. CMP with a canal gate for the diversion, and extend the access road.
The FEMA inspector noted the extensive modifications to the original design and determined that the eligible scope of work should be limited to rebuilding the facility to its original configuration. The FEMA inspector prepared Category F Damage Survey Report (DSR) 93437 in the amount of $50,035. It was suggested that other improvements could possibly be considered as Hazard Mitigation. During eligibility review, however, FEMA concluded that the modifications made to the facility were significant such that the project was considered an improved project. It was noted that the subgrantee did not request the required prior approval from the State or FEMA for these improvements. An environmental review was conducted for the completed work and it was concluded that due to the extensive modifications to the project, and the lack of evidence of an emergency situation, that the project was not eligible for a statutory or categorical exclusion from the environmental review process required by the National Environmental Policy Act (NEPA). The project was found ineligible for funding. Both OES and the subgrantee non-concurred with this determination, stating that the work was performed under emergency conditions and should be exempt from NEPA review.
First Appeal
The subgrantee submitted a first appeal of FEMA's determination of ineligibility, transmitted and supported by OES in a letter dated March 20, 1998. The subgrantee and OES asserted that the repair efforts were performed in response to a threat by fire due to the loss of reserve water supply, a threat to health if the Peterson System failed for any reason, and a threat of severe economic loss if the Clark System could not be restored by mid-April (tourist season). The subgrantee states that the work was performed under emergency guidelines of the USFS. Therefore, the subgrantee and OES concluded that the project was exempt from NEPA review, but that they did work closely with United States Forest Service (USFS) and the California Environmental Quality Act (CEQA) on certain environmental issues. Further, the applicant stated that the repair had to be altered from its pre-disaster design due to the relocation of the creek from the slide mass and the continuation of heavy snow storms and cold winter temperatures, but that it did not increase the capacity of the facility such that the project should not be considered an improved project. The subgrantee requested the full cost of the repair, $168,537, be considered eligible for funding.
The Regional Director denied the first appeal in a letter dated October 20, 1998. The response stated that the subgrantee completed the project without officially notifying FEMA prior to performing the work, which did not allow the project to be considered for NEPA review. Review of the available information again concluded that the subgrantee has not established that the project was necessary to prevent any immediate threat as the fulltime residents of the community were able to receive sufficient water service from the Peterson Plant. Further, it was stated that the emergency exemption provided by the USFS does cover the additional work performed at the site, nor does it offer any determining justification to reverse FEMA's decision to deny funding.
Second Appeal
The subgrantee submitted a second appeal, transmitted and supported by OES in a letter dated February 10, 1999. The subgrantee's letter questions FEMA's reasoning in funding Category A and B DSRs for this project for the removal of debris, emergency road construction and snow removal, while not recognizing the continued threat relative to restoring the plant facility. The subgrantee does not agree that sufficient time was available to perform a NEPA review by FEMA and still have the plant operational for the tourist season. The subgrantee's appeal reviewed the circumstances under which the project was executed to demonstrate the urgency associated with returning the plant to operation by the April tourist season.
DISCUSSION
The primary issues of the appeal are associated with the determination of whether the completed work should be considered emergency work, whether the completed work constitute an improved project, and whether a NEPA review was required prior to project approval. The subgrantee asserts that the completed scope of work did not require a NEPA review because the work performed was in response to an immediate threat and that the completed scope only restored the site to its pre-disaster condition. It is their opinion that no improvements were made.
Immediate Threat
The subgrantee asserts that the repair efforts were performed in response to a threat by fire due to the loss of reserve water supply, a threat to health if the Peterson System failed for any reason, and a threat of severe economic loss if the Clark System could not be restored by mid-April (tourist season). On this basis, the subgrantee concludes that an bency work.
FEMA agrees that the loss of the Clark System posed a threat to the water supply for the community. However, the intent of emergency work funding is to provide emergency protective measures to reduce the defined threat until permanent repairs can be made. In response to the failure of the Clark System, the subgrantee received permission to utilize the Peterson Plant at capacity, providing sufficient water supply and fire protection to the fulltime residents of the community. Accordingly, the use of the Peterson Plant water supply is considered a sufficient emergency measure to advert the threat posed by the disaster.
The subgrantee's appeal letters confirm that the Peterson Plant was sufficient for this emergency purpose but stresses their concern relative to providing the increased demand for the summer months. Their letter states "While it was felt that the Peterson Plant might, in an emergency, be used to supply the needs of those at June Lake during the winter months, the Peterson Plant was not capable of supplying safe drinking water for the normal influx of additional home owners and visitors that traditionally make June Lake their Summer and Spring destination." It should be understood that emergency protective measures are only eligible to advert a potential threat which cannot otherwise be controlled - such as providing water supply to persons who rely on the facility for their primary source of water. Additional measures to accommodate temporary, non-critical use of a site, such as the seasonal populations, are not eligible as emergency work.
Additionally, the subgrantee's letter questions FEMA's reasoning in funding Category A and B DSRs for this project while not recognizing the continued threat relative to restoring the plant facility. As described above, FEMA may provide funding for emergency measures to advert or lessen an immediate threat. The scopes of work described in the Category A and B DSRs, that being removal of debris, emergency road construction and snow removal, is consistent with this intent. However, the intent of emergency work is not to provide full permanent restoration of the facility. Once the threat is adverted, which in this case was done by utilizing the Peterson Plant, permanent repairs may be performed. Based on the information provided, the scope of work performed in DSR 93437 is considered to be permanent restoration of the facility, rather than providing work consistent with the intent of emergency protective measures.
Finally, it is noted that the subgrantee suggests that the work was performed in an emergency situation because they wanted to complete the work prior to the tourist season. They described the financial impact the loss of tourism would have on their community. However, Title 44 of the Code of Federal Regulations (44 CFR) 206.225(a) states that only emergency protective measures necessary to save lives, to protect public health and safety, and to protect improved property are eligible as emergency work. Additional efforts performed in the interest of community economy are not eligible as emergency work. Additionally, it is the subgrantee's opinion that had they gone through contract procurement procedures as required for permanent work, or initiated an environmental review, they would not have been able to complete the work on-time. Such circumstances, however, do not meet the criteria for emergency work projects as described above, nor release the subgrantee from environmental requirements.
Therefore, FEMA is unable to consider this work as emergency in nature. Accordingly, this scope of work would not qualify for an exemption from NEPA review as emergency work.
Permanent Restoration
Based on the analysis described above, the work performed at the site is considered to be permanent restoration as was originally intended in DSR 93437. The subgrantee asserts that some of the modifications made to the pre-disaster design were necessary to accommodate the relocation of the creek from the slide mass and the continuation of heavy snow storms and cold winter temperatures, but that it did not increase the capacity of the facility such that the project should not be considered an improved project. Although the overall function and capacity of the facility may have remained the same, some of the work performed, not required due to the configuration of the stream, is agreed to be improvements to the pre-disaster design of the facility. Because these work items were performed at the same time and by the same contractual efforts as the approved scope of work, all work items are considered one project. On this basis, the completed project constitutes an improved project. FEMA regulations (44 CFR 206.203(d)(1)) requires that the State's approval must be obtained for improved projects prior to construction. It is noted that the subgrantee did not request approval for this additional scope of work from either the State or FEMA.
NEPA
In addition to the requirement that the State review and approve improved projects, FEMA must also review such projects to ensure completion of the appropriate environmental and historic reviews. The National Environmental Policy Act (NEPA) requires every Federal agency to follow a specific planning and evaluation process to ensure that agency decision-makers and local governments have considered, and the general public is fully informed about, the environmental consequences of a Federal action. This review and consultation process is used to evaluate the impact a project and its alternatives may have on the environment. The process must be completed prior to obligating funds and beginning work. FEMA's regulations regarding NEPA can be found in 44 CFR, Part 10.
FEMA's policy for implementing the requirements of NEPA are outlined under Environmental Policy Memo #3, dated March 24, 1995, which states that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for disaster assistance funding. The Stafford Act provides a statutory exclusion to these requirements for emergency debris removal and emergency protective work, or for an action which restores a facility substantially to its condition prior to the disaster. As described in the above analysis, the completed work does not meet the criteria of eligible emergency protective work and it does change the pre-disaster design of the overall site. Further environmental review performed for this appeal analysis has found that although portions of the work may have been necessary to restore the site, some environmental review would have been required for the completed work. In particular, due to the actions such as working within a channel, portions of which were undamaged by the slide, and modifying the intake and discharge flow within the stream by the new culverts, certain environmental reviews would have been required to evaluate the impact and possible alternatives of these actions on the channel. These conclusions have been reviewed and supported by the FEMA Regional Environmental Officer. Accordingly, it is found that there is no statutory or categorical exclusion that would permit us to fund the work at issue in compliance with applicable environmental laws. Accordingly, FEMA may not fund any portion of the completed work.
Other Issues
Other issues have been raised by FEMA regarding the conduct of this work, including proper procurement procedures and failure to request an improved project status or to notify the State of a significant change in work. However, because the scope of work is denied on the basis of not performing the necessary environmental reviews (NEPA process), further comment regarding these other issues in not warranted for this analy a red by the subgrantee, it is concluded that the completed work does not meet the criteria of eligible emergency work, and that as permanent work, the expanded scope of work completed by the subgrantee constitutes an improved project. The subgrantee's failure to notify the State or FEMA of the proposed improvements consequently prevented FEMA from completing the necessary NEPA requirements for the project. Accordingly, FEMA cannot fund any portion of the completed work. The subgrantee's appeal is denied.
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