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Second Appeal Letter
PA ID# 041-99041-00; Marin County
PW ID# 746; Environmental Compliance
May 14, 2012
Mr. Mark Ghilarducci
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655
RE: Second Appeal–Marin, PA ID 041-99041-00, Environmental Compliance, FEMA-1646-DR-CA, Project Worksheet (PW) 746
Dear Mr. Ghilarducci:
This is in response to a letter from your office dated September 21, 2010, which transmitted the referenced second appeal on behalf of Marin County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny the funding for permanent site work to a landslide area because the Applicant did not undergo an environmental review or receive approval for the scope of work prior to commencing the work. In addition, the applicant is appealing FEMA’s decision to reduce the eligible geotechnical investigation cost to $2,458. The Applicant seeks additional reimbursement totaling $122,187 for the full cost associated with the geotechnical investigation and the cost of the permanent site work.
Heavy rains and flooding from March 29 through April 16, 2006, resulted in water infiltration of a hillside causing a landslide, which threatened two houses approximately 20 feet from the bottom of the slide. FEMA prepared PW 746 for $10,755 for a limited geotechnical investigation to confirm that there was an immediate threat to the property. The PW recommended funding a cost effective method of eliminating the threat if the geotechnical report confirmed its existence. The approved scope of work originally consisted of emergency work estimated to be $78,480, however, the emergency work was not obligated pending the outcome of the geotechnical investigation.
On February 15, 2007, the Applicant submitted a closeout request for PW 746 for $121,686, which included the cost of the geotechnical investigation and the contract cost for the site work to the hillside. The site work consisted of an earthen buttress and drainage improvements. In a letter dated April 29, 2008, California Emergency Management Agency (Cal EMA) submitted the large project closeout request for PW 746 to FEMA. FEMA denied the request because the site was a natural hillside and is not eligible for permanent restoration or mitigation to prevent future landslides. In addition, the repair work was completed without FEMA approval and the geotechnical investigation determined that pre-disaster site conditions contributed to the landslide.
In a letter dated November 19, 2009, the Applicant submitted a first appeal arguing that the earthen buttress and drainage improvements was an emergency protective measure not permanent repair and that there was no evidence that the site was unstable based on the geotechnical investigation.
The Applicant assumed that the environmental review had been completed since the proposed work was originally included in the scope of work for PW 746. The Applicant disagreed with FEMA’s reduction in eligible cost for the geotechnical report. Further, the Applicant argued that the verbiage contained in the scope of work was ambiguous and misleading and led the Applicant to assume it was to proceed with the work upon receipt of the geotechnical investigation report.
On May 12, 2010, the Regional Administrator denied the first appeal stating that emergency protective measures may have been eligible; however, FEMA did not receive a copy of the geotechnical investigation and did not have an opportunity to review or approve the work prior to its completion. The project did not undergo review in accordance with the National Environmental Policy Act (NEPA). Pursuant to 44 CFR Part 10 and FEMA’s Response and Recovery Policy 9560.1, Environmental Policy Memoranda, dated August 17, 1999, a review cannot be completed after the project is initiated and/or completed. The response also stated that the portion of the cost of the geotechnical investigation related to the permanent site work on the hillside was ineligible. FEMA approved PW 746 Version 1 to reduce the estimated cost of the geotechnical investigation to $2,458 for only the costs associated with determining if the landslide was an immediate threat to the properties adjacent to the hillside.
The Applicant submitted a second appeal in a letter dated July 19, 2010, which was forwarded by CalEMA to FEMA on September 21, 2010. In the second appeal, the Applicant reiterated its arguments from its first appeal.
The Applicant constructed an earthen buttress to stabilize the slope. This type of work may be eligible for Public Assistance funding as emergency work if it is a direct result of the disaster and, if it lessens or eliminates immediate threats to life, public health and safety, or significant damage to improved property. Although the scope of work recommended a conditional approval based on the geotechnical investigation, the project was never approved nor was a Federal environmental review initiated.
FEMA performed a site visit and environmental review after construction was completed and noted that the project may have adversely affected five Federally-listed endangered species (i.e., Marin western flax, white-rayed pentachaeta, two-fork clover, Myrtle’s silverspot butterfly, and the California red-legged frog).
Response and Recovery Policy 9560.1, Environmental Policy Memoranda, Attachment 3, dated August 17, 1999, states:
It is FEMA policy that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for funding. A statutory exclusion to this requirement already exists in the Stafford Act. Be aware however, that this exclusion does not relieve FEMA of the responsibility to comply with other Federal statutes, permits, and requirements such as, National Historic Preservation Act, Endangered Species Act, Section 404 of the Clean Water Act, Executive Orders 11988, 11990, and 12898, etc.
FEMA must perform environmental reviews in accordance with NEPA and the Endangered Species Act before funding a project. The Applicant completed the expanded project scope of work before FEMA had an opportunity to review the project for environmental compliance.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision is consistent with Public Assistance Program regulations and policies. Therefore, I am denying the Applicant’s 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.
cc: Nancy Ward
FEMA Region IX