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Second Appeal Brief
PA ID# 093-99093-00; Siskiyou County
PW ID# Project Worksheets 697, 806, and 970; Road Repair
Environmental Compliance; Endangered Species Act
Flooding between December 17, 2005, and January 3, 2006, caused washouts and surface damage to roads adjacent to the Klamath River. FEMA prepared PWs to repair the damaged roadways and shoulders. FEMA determined that the projects were ineligible because Siskiyou County (Applicant) completed repairs prior to review by National Marine Fisheries Service (NMFS) or FEMA for compliance with Section 7 of the Endangered Species Act (ESA). In its first appeal, the Applicant claimed that (1) the projects were statutorily excluded from National Environmental Policy Act review; (2) the NMFS was not contacted because wildlife and habitat were not affected; and (3) prompt repair of the roads were needed. The appeal was denied because the Deputy Regional Administrator confirmed that the projects had the potential to adversely affect federally listed species and required consultation with NMFS before the project was implemented. In its second appeal, the Applicant claimed that it complied with published procedures that were reviewed by NMFS after the work was completed and that NMFS confirmed that the work had no adverse affect on federally listed species.
1. Are emergency repairs exempt from ESA provisions?
2. May after-the-fact consultation with NMFS substitute for consultation prior to funding?
44 Code of Federal Regulations Part 10; Response and Recovery Policy 9560.1, Environmental Policy Memoranda