Environmental Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-4081
Applicant	Long Beach Port Commission
Appeal Type	Second
PA ID#	047-UDKVR-00
PW ID#	747
Date Signed	2017-04-05T00:00:00

Conclusion:   The National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS) issued a biological opinion in September 2016, stating that the Long Beach Port Commission’s (Applicant) construction had only an insignificant or discountable impact to critical habitat in its harbor, effectuating compliance with the Endangered Species Act (ESA).  In addition, the Applicant obtained a permit from the U.S. Army Corps of Engineers (USACE) as required under the Clean Water Act (CWA).  As such, the work is eligible for Public Assistance (PA).

Summary Paragraph

In August 2012, Hurricane Isaac caused damage throughout Mississippi.  Heavy wave action, strong winds, and saltwater intrusion damaged a concrete boat launch ramp (ramp), two finger piers, and other systems and equipment at the Applicant’s small craft port.  FEMA prepared Project Worksheet (PW) 747 to address the damage and included a provision requiring the Applicant obtain a permit from the U.S. Army Corps of Engineers’ (USACE) in order to comply with Section 404 of the Clean Water Act (CWA).  Additionally, the Endangered Species Act (ESA) required FEMA consultation with the National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS) prior to the Applicant starting construction.  After learning the Applicant completed construction on the ramp and one finger pier prior to the required consultation, FEMA disallowed the funding associated with the ramp and pier in the amount of $29,185.00.  The Applicant appealed FEMA’s determination and argued that: (1) it followed all known environmental permitting procedures, laws and regulations; (2) the Mississippi Department of Marine Resources (DMR) issued a permit in which it requested NOAA, USACE, and other agencies to comment and because those agencies failed to comment, their concurrence was assumed; and (3) there was no adverse impact to any species or critical habitat.  FEMA Region IV Regional Administrator (RA) denied the Applicant’s appeal because the Applicant initiated repair of the ramp and finger pier before FEMA could complete its consultation with NMFS required by Section 7 of the ESA.  The RA noted that while the Applicant submitted a joint application for permits from several agencies, the absence of a response did not equate to approval.  In addition, the Applicant did not receive a USACE permit.  The Applicant appeals the RA’s decision, and in addition to reaffirming its arguments made on first appeal, it asserts that because it received a permit from the DMR and USACE in 2014, it proved that all environmental permitting and Federal regulations were fulfilled prior to construction.

Authorities and Second Appeals

• 44 C.F.R. § 10.4(a).
• ESA § 7.
• CWA § 404.
• PA Guide, at 130, 132.

Headnotes

• Under the ESA § 7 and FEMA’s PA Guide, any time a project has the potential to affect a threatened or endangered species or its habitat, FEMA must consult with NOAA’s NMFS before approving funding for that project.
  • NOAA’s NMFS issued a biological opinion in 2016 finding the work completed by the Applicant did not have an adverse effect on any species or habitat in the harbor where construction occurred.
• 44 C.F.R. Section 10.4(a) requires FEMA assure that it carries out its responsibilities in a manner consistent with national environmental policies. 
  • Accordingly, pursuant to both § 404 of the CWA and FEMA’s PA Guide, an applicant must obtain a permit in any situation where dredging or filling is a component of a project.
• Where a USACE permit is required for a PA project, FEMA places a requirement in the PW stating the applicant is responsible for obtaining the permit.
  • FEMA inserted the condition into PW 747 that the Applicant must obtain a § 404 permit.  The Applicant obtained such a permit in June 2014.

Appeal Letter

Appeal Analysis

Background

On August 29, 2012, Hurricane Isaac caused damage throughout Mississippi.  Heavy wave action, strong winds, and saltwater intrusion damaged a concrete boat launch ramp (ramp), two finger piers, a fuel tank facility and dispensing system, an electrical system, and a sewage pump-out station at the Long Beach Port Commission’s (Applicant) small craft port.  FEMA prepared Project Worksheet (PW) 747 in December 2012 to document the Applicant’s request to repair and replace damaged equipment, the piers and ramp, as well as a hazard mitigation proposal to strengthen the connection to the piers.  FEMA conducted an initial review and added a condition to the PW requiring the Applicant to obtain Clean Water Act (CWA) Section 404 permits from the United Stated Army Corps of Engineers (USACE) and Section 401 permits from the Mississippi Department of Environmental Quality (MDEQ).

In January 2013, FEMA initiated an informal consultation with the National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS), as required under the Endangered Species Act (ESA).[1]  At the end of February 2013, in order to complete its consultation with NMFS, FEMA requested additional information regarding the environmental implications from the Mississippi Emergency Management Agency (Grantee).  Communications between FEMA, the Grantee, and the Applicant continued through May 2013 to acquire the requested information.  In May 2013, the Applicant also submitted a Joint Permit Application to the Mississippi Department of Marine Resources (DMR), requesting a permit to complete the proposed repairs in its harbor.  DMR mailed correspondence to USACE, MDEQ, NOAA, and other agencies asking for any comments on the Applicant’s permit application.  All comments were to be returned no later than June 10, 2013, and if no comments were received, DMR would assume concurrence on the permit.  DMR did not receive any comments and issued the permit.  The Applicant then completed work on one of the piers in June 2013 and on the ramp in October 2013. 

During a call between FEMA, DMR, the Grantee, NMFS, and the Applicant in November 2013, the Applicant disclosed that construction on one finger pier and the ramp were completed.  On April 15, 2014, FEMA awarded PW 747, but because work on the finger pier and ramp was completed prior to the conclusion of the environmental review process, disallowed $29,185.00 in estimated costs associated with that work. 

First Appeal

The Applicant appealed FEMA’s determination on May 8, 2014 for $83,370.00.  In its appeal, it argued that: (1) it followed all known environmental permitting procedures and all laws and regulations; (2) the work related to the finger pier and ramp did not adversely impact any species or critical habitat; (3) FEMA delayed its environmental and historic preservation (EHP) review until 2014 and FEMA’s guidance stated that applicants should not delay recovery based on delays by FEMA; (4) NOAA’s NMFS concurrence was implied in June 2013 when it did not comment on DMR’s permit issuance; and (5) it completed the work in good faith. 

The Grantee concurred in a letter dated July 7, 2014, and argued that because FEMA initially identified the project as falling under a categorical exclusion (CATEX) to the National Environmental Policy Act (NEPA), no further environmental review was required.  The Grantee also stated that the Applicant relied in good faith on FEMA’s initial determination and that any perceived issues with the consultation with NOAA’s NMFS could still be addressed, so FEMA funding could be dispensed.  Finally, it stated that Title 50 of the Code of Federal Regulations (50 C.F.R.) § 402.05 allowed FEMA to consult with NMFS any time after a disaster.  

On August 7, 2015, FEMA sent a final Request for Information (RFI) asking the Applicant to provide evidence establishing the required environmental consultation under the ESA was completed prior to beginning construction on the ramp and finger pier.  The RFI also requested: (1) clarification regarding the amount of funding being appealed as the appeal letters indicate $83,370.00, but the amount of deobligation was $29,185.00; and (2) the status of the project— specifically, when work was completed on the ramp and finger pier and if any work had been completed after November 2013. 

The Applicant responded on August 20, 2015, asserting it followed the current state procedures by involving all federal, state, and local agencies in order to obtain a permit.  The Applicant confirmed $83,370.00 as the appealed amount, which it stated was the actual cost of work completed through November 2013.  The Applicant asserted that it submitted everything required to receive a permit, no agencies commented, and consequently those agencies approved the permit.  The Applicant then commenced construction, completing work on the pier in June 2013 and ramp in October 2013.

The Region IV Regional Administrator (RA) denied the Applicant’s appeal on March 18, 2016.  In her decision, the RA determined the Applicant initiated repair of the ramp and one of the finger piers before FEMA could complete consultation with NOAA’s NMFS as required by Section 7 of the ESA.  In addressing the Grantee’s assertion regarding CATEX, the RA explained that FEMA’s CATEX determination for the work under PW 747 only applied to compliance under NEPA and did not impact other federal, state, tribal, or local laws, regulations, or executive orders, like the ESA.  The RA further noted that Section 7 of ESA required an informal consultation between FEMA and NMFS.  She found that while the Applicant initiated work in 2013 under the assumption that the permit issued by DMR was sufficient to meet all compliance requirements, it did not verify the status of FEMA’s EHP compliance review, despite being informed previously of both the environmental compliance requirements for receipt of federal funding and that the project was being reviewed by FEMA for environmental compliance. 

The RA refuted the contention that 50 C.F.R. § 402.05 allowed after-the-fact consultation and clarified that the regulation did not apply to a non-emergency situation.  The repairs to the pier and ramp were permanent work and were not done to address an immediate threat to life or property, which is required under 50 C.F.R. § 402.05.  In addition, although the Applicant submitted a joint application for permits from several agencies, including USACE, the RA determined that the absence of a response did not equate to compliance because the Applicant did not receive a USACE permit, and therefore FEMA could not assess CWA Section 404 compliance.  Finally, the RA explained that although FEMA completed a consultation with NMFS on the repairs to the remaining, incomplete work, the consultation did not pertain to the completed work, specifically, the ramp and pier. 

Second Appeal

In a letter dated May 10, 2016, the Applicant appeals the RA’s decision in the amount of $29,185.00.  In addition to what the Applicant argued on first appeal and submitted in support thereof, it also claims that FEMA failed to provide a representative to advise the Applicant, as required by The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).  Instead, FEMA informed the Applicant that the Grantee would be the primary contact.  The Applicant also indicated it received a joint permit from DMR/USACE in 2014, to demonstrate compliance with Section 404 of the CWA. 

The Grantee concurred in a letter dated July 19, 2016.  In it, the Grantee noted the Applicant completed the project in reliance on FEMA’s prior EHP reviews and should not be penalized for delayed confirmation from other agencies, who ultimately found the project was of no concern.  The Grantee also indicated that the Applicant signed PW 747 on December 21, 2012 and then restored the ramp to its pre-disaster footprint, function, and size in accordance with the scope of work in the PW.

Discussion

Compliance with Section 7 of the Endangered Species Act

Section 7 of the ESA requires FEMA to make a determination of the impact of all FEMA-funded actions to listed threatened and endangered species and critical habitat.[2]  Where a project has the potential to affect a threatened or endangered species or habitat, FEMA must consult with NOAA’s NMFS before approving funding for the project,[3] and generally ESA Section 7 consultations cannot be initiated after the work is completed as NMFS previously has refused to consult with FEMA on projects after the work was completed.[4] 

The Applicant completed construction on the ramp and one finger pier prior to FEMA’s consultation with NMFS.  However, in September 2016, NOAA’s NMFS issued a Biological Opinion (Opinion),[5] which provides that, [A]ny effects from the FEMA funded completed repairs to Long Beach Harbor would not likely have adversely affected sea turtles from construction, including potential injury from mechanical equipment, loss of foraging habitat, and injury from in-water construction noise…There is no information indicating that any adverse effects occurred.  Therefore, we believe that these effects from the completed construction were either insignificant or the risk of them having occurred were discountable.[6] 

As part of the second appeal review process, FEMA engaged subject matter experts to review the administrative record and Opinion.  FEMA accepts NMFS’s Opinion, and notes in this particular case, that NMFS initiated its review and then consulted with FEMA after construction was completed.  This action by NMFS satisfied FEMA’s consultation requirement and compliance with Section 7 of the ESA.[7]   

Compliance with Section 404 of the Clean Water Act

Pursuant to 44 C.F.R. Section 10.4(a) FEMA is required to “act with care to assure that, in carrying out its responsibilities…it does so in a manner consistent with national environmental policies.”[8]  In projects where dredged material or fill is discharged into the waters of the United States as part of a project, the USACE is consulted.[9]  Section 404 of the CWA gives the USACE authority to issue permits authorizing this type of activity.[10]  Where a USACE permit is required, FEMA will place a requirement in the PW outlining the applicant’s responsibility to obtain the permit.[11] 

In this instance, PW 747 outlined the requirement that the Applicant comply with the CWA, and detailed that it was responsible for obtaining Section 404 permits from the USACE.[12]  The Applicant received a Section 404 permit from USACE in June 2014 and accordingly complied with this regulatory and grant requirement.[13]

Conclusion

NOAA’s NMFS agreed to consult with FEMA after the Applicant completed construction on the ramp and one pier and issued a Biological Opinion, which satisfied the requirements of Section 7 of the ESA.  In addition, the Applicant received a permit from the USACE, satisfying the requirements outlined in PW 747 and in accordance with Section 404 of the CWA.  Accordingly, the appeal is granted and final costs will be reconciled at closeout. 

 

[1]The Endangered Species Act of 1973, Pub. L. No. 93-205, § 7, 16 U.S.C. § 1536 (2003) (requiring FEMA consult with NMFS prior to starting work on the project).

[2] Id.

[3] Public Assistance Guide, FEMA 322, at 130 (June 2007) [hereinafter PA Guide]. 

[4] FEMA Second Appeal Analysis, Mendocino County, FEMA-1628-DR-CA, at 2 (Apr. 9, 2008).

[5]Endangered Species Act – Section 7 Consultation Biological Opinion (Sep. 9, 2016) [hereinafter Opinion].

[6] Id. at 43.

[7] The Opinion is not part of the Administrative Record.  However, FEMA Region IV pursued the NMFS consultation and FEMA only recently received the Opinion.  Region IV appropriately forwarded the report for consideration, since it addresses and resolves the issues on appeal.

[8] Title 44 Code of Federal Regulations (44 C.F.R.) § 10.4(a) (2011).

[9] PA Guide, at 132.

[10] Federal Water Pollution Control Act, Pub. L. No. 92-500, § 404, 33 U.S.C. § 1342 (2002) (commonly known as the Clean Water Act, Section 404 delegates authority to the USACE for administering permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites).

[11] PA Guide, at 132.

[12] Project Worksheet 747, Long Beach Port Commission, Version 0 (Apr. 15, 2014) (stating, “[t]he Applicant is responsible for coordinating with and obtaining any required Section 404 permit(s) from the (USACE)…prior to initiating work.  The Applicant shall comply with all conditions and pre-construction notification requirements of the required permit(s).”).

[13] Letter from Representative, USACE, Mobile District, to Mayor, City of Long Beach, at 1 (June 17, 2014) (noting that the permit covered replacement of the existing launch pier, piles, and structural and decking components.  The plans attached also include the piers and note they are, “to be restored to pre-hurricane Isaac conditions.”  While the language in the permit noted that the activities are proposed, the permit was issued after the Applicant completed work on the piers and ramp).