Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 037-48648-00; City of Monrovia
PW ID# 1409; Road Repair
January 11, 2010
Governor’s Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal–City of Monrovia, PA ID 037-48648-00, Road Repair,
FEMA-1577-DR-CA, Project Worksheet (PW) 1409-2
Dear Mr. McCarton:
This letter is in response to your letter dated April 9, 2009, which transmitted the referenced second appeal on behalf of the City of Monrovia (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $50,830 for repairs to the Upper Cloverleaf Reservoir service road.
FEMA prepared PW 1409 to repair a dirt service road leading to the Upper Cloverleaf Reservoir. In a letter dated July 24, 2006, the Applicant requested an improved project to pave the dirt road with 3-inch asphalt concrete pavement. In addition to paving the dirt road as requested, the Applicant re-aligned the road in some areas and conducted minor leveling of vegetation and ground up to ten feet on either side of the newly paved road. The National Environmental Policy Act (NEPA) requires Federal agencies to conduct environmental reviews of proposed projects prior to approving funds. After a site visit on November 20, 2006, FEMA de-obligated $50,830 because the Applicant completed the improved project prior to FEMA completing its environmental review, which precluded FEMA’s ability to comply with NEPA, the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA).
The Applicant submitted its first appeal on April 16, 2008. The Applicant asserted that it considered environmental laws when it planned the repair of the access road. The Applicant provided before and after photographs of the site and a report, prepared by LSA and Associates, of the biological conditions surrounding the access road in support of its compliance with California Environmental Quality Act requirements. The Deputy Regional Administrator denied the Applicant’s appeal on October 14, 2008, because the Applicant paved 60 percent of the dirt road and re-aligned the road prior to FEMA conducting its environmental and historic reviews. As such, FEMA was not able to comply with the requirements of NEPA, ESA and NHPA.
The Applicant submitted its second appeal on February 5, 2009, and provided additional information to support its second appeal in a letter dated March 23, 2009. The Applicant stated that it used its own funds for the asphalt concrete paving and FEMA funding was not utilized for that portion of the work performed. The Applicant contends that it expedited the Upper Cloverleaf Reservoir access road project to prevent or reduce an immediate threat to its citizen’s lives, health, and properties, and to prevent severe economic losses to the City. The Upper Cloverleaf Reservoir supplies water to more than 1,000 residents, 39 fire hydrants, and serves as the emergency standby source of domestic water and fire service protection for the City of Norumbega water system.
Response and Recovery Policy 9560.1, Environmental Policy Memoranda, dated August 17, 1999, allows FEMA to, in rare situations, consider funding actions completed without fulfilling the NEPA requirements, but which were initiated in an emergency to prevent or reduce an immediate threat to life, health, property or severe economic losses. The Applicant has not demonstrated that there was an immediate threat necessitating paving and realigning the access road. Although ensuring long-term stability and serviceability of the access road leading to the Upper Cloverleaf Reservoir is vitally important, the Applicant has not presented information that meets the criteria set forth in Response and Recovery Policy 9560.1, Environmental Policy Memoranda, dated August 17, 1999. As a condition of Federal funding, environmental and historic compliance requirements must be met prior to performing work. Therefore, all work related to the repair of the service road leading to the Upper Cloverleaf Reservoir is not eligible for funding. The Applicant completed the project before FEMA could conduct an environmental and historic review as required by statute. Based on a review of all of the information submitted with the appeal, I have determined that the Deputy Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Therefore, I am denying the 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.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX