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Second Appeal Brief
PA ID# 027-U2SPY-00; Clay County
PW ID# 364 and 366; Mulberry Creek Bridge Removal
Citation: FEMA-1932-DR-KS, Clay County, Environmental Compliance, PWs 364 and 366
Reference: Environmental Compliance; Replacement Costs
Summary: Two steel truss bridges were damaged by floating debris, log jams, and high velocity water flowing down Mulberry Creek as a result of severe thunderstorms and torrential rains that struck Clay County from June 7 through July 21, 2010. FEMA prepared PW 364 ($326,983) and PW 366 ($424,155) to replace the two damaged bridges. FEMA later revised the PWs to only allow for bridge repair costs because the Applicant demolished both bridges prior to a FEMA site inspection and before FEMA and the State Historic Preservation Officer (SHPO) had an opportunity to review the project.
In the first appeal, the Applicant stated that both bridges were removed as emergency protective measures to prevent additional damage to residential homes, property, and roads. The State supported the first appeal indicating that the Applicant’s actions were reasonable given the emergency situation and that the Applicant was not attempting to avoid Federal or State historic preservation compliance requirements. The Regional Administrator denied the first appeal stating that the Applicant failed to comply with the regulations in accordance with Section 106 of the National Historic Preservation Act (NHPA) by failing to notify FEMA and the SHPO that the historic structures would be demolished. The Regional Administrator also stated that because the bridges were removed prior to a FEMA site inspection, FEMA was unable to determine whether the structures were eligible for replacement as provided in 44 CFR 206.226(f), Restoration of damaged facilities, Repair vs. replacement.
The Applicant submitted a second appeal and reiterates its first appeal argument that the bridges were removed as an emergency protective measure. The Applicant questions why FEMA wrote PWs and then revised the scopes of work if FEMA deemed the projects to be ineligible for Public Assistance funding.
Issues: 1. Did the project require consultation prior to commencing work in accordance with the NHPA?
2. Did the Applicant provide FEMA with an opportunity to comply with the NHPA?
Findings: 1. Yes.
Rationale: Section 106 of the National Historic Preservation Act