Road Repair

August 7, 2008

Frank McCarton
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal–Siskiyou County, PA ID 093-99093-00, FEMA-1628-DR-CA,
Project Worksheets (PW) 697, 806 and 970

Dear Mr. McCarton:

This is in response to your letter dated February 6, 2008, which transmitted the referenced second appeal on behalf of Siskiyou County (Applicant). The Applicant appealed the denial by the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to provide funding to repair washouts and surface damage to several roads along the Klamath River as detailed in PWs 697, 806 and 970.

FEMA determined that the PWs were ineligible because the Applicant completed the work prior to review by FEMA for compliance with Section 7 of the Endangered Species Act (ESA). The Applicant submitted its first appeal on April 23, 2007, to the California Governor’s Office of Emergency Services (OES). In its first appeal, the Applicant claimed that (1) the projects were statutorily excluded from National Environmental Policy Act (NEPA) review; (2) the National Marine Fisheries Service (NMFS) was not contacted because wildlife and habitat were not affected; and (3) prompt repair of the road was needed. The Deputy Regional Administrator denied the appeal in a letter dated September 21, 2007, confirming that the projects had the potential to adversely affect federally listed species and required consultation with NMFS before the project was implemented.

The Applicant submitted its second appeal on December 10, 2007. The Applicant claimed that FEMA did not provide notification that a NMFS consultation was required prior to completion of the work. The Applicant contended that the repair work was completed in accordance with “A Water Quality and Stream Habitat Protection Manual for County Maintenance in Northwestern California Watersheds” (Manual). The Applicant also provided a letter from NMFS, dated July 19, 2007, which stated that road maintenance activities conducted in accordance with the Manual would adequately conserve threatened species. Photographs of the repaired roadway and a typical cross-section of the project site were included with the second appeal.

In its transmittal letter, OES stated that NMFS conducted a site visit on December 20, 2007. OES provided a copy of two emails, dated January 7, 2008, and January 14, 2008, from a NMFS Natural Resource Specialist as follow-up to the site visit. According to OES, the emails confirm that the completed work caused no effect to Southern Oregon/Northern California Coast coho salmon or their habitat. OES contended that the projects should be funded because the work was completed in accordance with the Manual and because NMFS found, after-the-fact, that the work did not adversely affect federally listed species under ESA.

If a project has potential to affect a threatened or endangered species or its habitat, FEMA must consult with NMFS before approving funding for the project. ESA Section 7 consultations cannot be initiated after the work has been completed. Furthermore, Section 8-A of the Manual states that “work potentially impacting stream habitat with ESA-listed species requires NMFS pre-project notification if federal funding is being used or federal permits are required (ESA Section 7 – emergency consultation).” The Applicant did not provide documentation that the work performed on the subject projects followed procedures listed in the Manual. We reviewed all information submitted with the appeal and determined that the Deputy Regional Administrator’s decision is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

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

cc: Nancy Ward
Regional Administrator
FEMA Region IX