Environmental and Historic Preservation Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4353
Applicant	Carpinteria
Appeal Type	Second
PA ID#	083-11446-00
PW ID#	PW 215
Date Signed	2021-12-08T17:00:00

Summary Paragraph

From December 4, 2017 through January 31, 2018, the Thomas Fire and the rain that followed caused flooding, mudslides, and debris flows throughout California.  The City of Carpinteria requested reimbursement for city-wide debris removal.  FEMA determined that the work in Carpinteria Creek needed to comply with the U.S. Army Corps of Engineers (USACE) Regional General Permit 63 (RGP 63).  FEMA requested the Applicant provide evidence that it notified the USACE of proposed work in and around the creek near the Carpinteria Bridge and that the work was authorized, or evidence that notification was unnecessary.  FEMA then determined that because the Applicant did not notify USACE of the work or show it was authorized, FEMA could not complete its environmental and historical preservation (EHP) compliance review and denied PA funding.  The Applicant appealed, stating that due to power outages it could not notify USACE in a timely manner and USACE RGP 63 authorized emergency work in the creek.  FEMA Region IX partially approved the appeal, awarding costs incurred in other areas of the city, but denied costs incurred in the creek as the Applicant did not obtain the required environmental permits prior to starting the work.  The Applicant’s second appeal reiterates first appeal arguments.  The California Governor’s Office of Emergency Services (Grantee) recommends approval and notes that that USACE Nationwide Permit 14 covered the debris removal activities.  FEMA consulted with USACE, who confirmed that the Applicant did not comply with RGP 63 and that Nationwide Permit 14 did not excuse the requirement to comply with RGP 63.

Authorities and Second Appeals

• Stafford Act § 316
• National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.
• 33 C.F.R. Parts 320–332
• PAPPG, at 43-44

Headnotes

• Although NEPA review does not apply to disaster recovery actions, an applicant must obtain all required EHP permits from appropriate agencies before proceeding with emergency work.  
  • Under USACE Regional General Permit 63, the Applicant was required to notify USACE of its intent to perform debris removal in Carpinteria Creek prior to beginning the work.  USACE confirmed that the Applicant did not provide such notification.

Conclusion

The Applicant did not comply with applicable Federal environmental laws and their implementing regulations prior to performing the emergency debris removal work in Carpinteria Creek, which is a requirement for receiving federal assistance.  Accordingly, the second appeal is denied.

Appeal Letter

Appeal Analysis

Background

From December 4, 2017 through January 31, 2018, the Thomas Fire and the rain that followed caused flooding, mudslides, and debris flows throughout California.  The City of Carpinteria (Applicant) requested reimbursement for city-wide debris removal.  FEMA created Project Worksheet 215 to document debris removal at several sites, including within Carpinteria Creek.  FEMA determined that before proceeding with debris removal work in Carpinteria Creek (creek), the Applicant was required to comply with the conditions outlined in the United States Army Corps of Engineers’ (USACE) Regional General Permit (RGP) 63.[1]  FEMA requested the Applicant provide evidence that it notified USACE of proposed work in and around the creek near the Carpinteria Bridge (bridge) and that the work was authorized, or evidence that notification was unnecessary.  FEMA determined that because the Applicant did neither, FEMA could not complete its obligatory environmental and historical preservation (EHP) compliance review and denied Public Assistance funding for the project.

First Appeal

The Applicant appealed by letter dated February 28, 2019 for $174,875.97.  The Applicant stated it procured a contractor for emergency availability on January 10, 2018 to remove debris from the creek near the bridge to prevent overtopping the creek and subsequent neighborhood flooding.  The work was performed on January 10-11, 2018.  The Applicant stated the disaster disrupted communications and power from January 9-12, 2018 and it could not notify USACE in a timely manner but that it did notify USACE about the work after the debris was removed.  The Applicant provided a March 1, 2018 USACE RGP 63 Verification, which it claimed authorized repair and protection activities in emergency situations in the creek, and a USACE Nationwide Permit (NWP) 14 for the Carpinteria Avenue Bridge Replacement Project issued May 3, 2017 and valid through March 18, 2022.  The Applicant asked if NWP 14 would be sufficient.

The California Governor’s Office of Emergency Services’ (Grantee) May 3, 2019 transmittal stated the area beneath the bridge was completely blocked by debris and described work to restore storm drain functionality, to protect bridge abutments, and to secure utility conduits.  The Grantee clarified the RGP 63 Verification from USACE confirmed that the Santa Barbara Flood Control District (District) debris removal work in various County creeks, including Carpinteria, was compliant.  The Grantee cited the Council on Environmental Quality (CEQ) document titled Emergencies and the National Environmental Policy Act (NEPA) and noted that as agencies respond to emergencies, they must consider whether there is enough time to follow the procedures in the regulations, and that the regulations provide for alternatives for NEPA compliance in emergencies.[2]  The Grantee stated the CEQ allowed for flexibility during emergency situations, that in some cases projects subject to USACE permits are undertaken before USACE can issue a permit, and that given the communications difficulties, the Applicant did as much as it could to comply with the regulatory requirements.  Finally, the Grantee cited NWP 14 and noted that it was for work performed in approximately the same area as the disaster debris flow and stated that it appeared the Applicant performed work with knowledge of USACE permit requirements and that FEMA may not have been aware the Applicant already had a permit with equivalent conditions for performing the work in the creek. 

The FEMA Region IX Regional Administrator partially approved the appeal on May 13, 2021.  FEMA awarded costs incurred in other areas of the city, but denied costs incurred in the creek as the Applicant did not obtain the required environmental permits prior to starting the work in the creek.  FEMA consulted USACE regarding whether NWP 14 covered environmental requirements of the work performed in the creek.  USACE informed FEMA that RGP 63 was the applicable required permit, and that NWP 14 was not a substitute for it.  FEMA also noted that, while the Applicant claimed disrupted communications made USACE notification impossible prior to commencing the work, it did not provide any documentation to support such a claim.

Second Appeal

In its July 15, 2021 second appeal for $89,155.40, the Applicant asserts its first appeal arguments provide a sufficient basis for approval and submits correspondence to show its good faith efforts to notify USACE.  The Grantee’s second appeal transmittal dated September 9, 2021 notes the Applicant provided documentation for debris removal at other locations which met emergency work eligibility requirements.  The Grantee states that its Environmental Officer (EO) reviewed NWP 14 and observed that it allowed for debris removal activities within the creek, that NWP 14 provisions allowed for maintenance in the creek to protect the bridge and, given the proximity of the debris flow to the bridge, the EO concludes that NWP 14 covered the debris removal activities. 

 

Discussion

FEMA must ensure every PA project complies with applicable Federal environmental laws and their implementing regulations.[3]  An applicant must obtain all required EHP permits from appropriate agencies before proceeding with the work.[4]  If a non-Federal entity fails to comply with Federal statutes, regulations, or the terms and conditions of a Federal award, FEMA may disallow all or part of the cost or activity not in compliance, wholly or partly suspend or terminate the award, or take other remedies that may be legally available.[5]   

The Applicant was required to notify USACE prior to starting any work in Carpinteria Creek to comply with the provisions of RGP 63.  The Applicant did not notify USACE of its intent to proceed with emergency work prior to actually doing the work and it did not provide documentation verifying exemption from RGP 63.  USACE indicated that RGP 63 was the applicable required permit and NWP 14 was not a substitute for it.  The Applicant has not supported the claim that communications disruptions caused by the event prevented it from notifying USACE prior to the work, and while the Applicant provided evidence of good faith efforts to notify USACE, all such efforts were conducted after the debris was removed.  Because the Applicant did not satisfy the prior notification requirements of RGP 63, it did not comply with RGP 63 and FEMA could not perform its required EHP review.

 

Conclusion

The Applicant did not comply with applicable Federal environmental laws and their implementing regulations prior to performing the emergency debris removal work in Carpinteria Creek, which is a requirement for receiving federal assistance.  Accordingly, the second appeal is denied.

 

 

[1] See Title 33, United States Code (33 U.S.C.) § 1344 (2012); Title 33, Code of Federal Regulations (33 C.F.R.) Parts 320–332 (2017).

[2] See generally National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. (Supp. III 2015).

[3] 2 C.F.R. § 200.300(a) (2017); Public Assistance Program and Policy Guide, FP 104-009-2, at 8 (Apr. 2017).

[4] PAPPG, at 44.

[5] 2 C.F.R. § 200.338(b)-(c), (f).  In addition, although emergency work is excluded from review under NEPA through a statutory exclusion, FEMA must ensure compliance with other Federal EHP laws, regulations, and executive orders, PAPPG, at 43-44; see also Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 316 (2012), 42 U.S.C. § 5159 (2012).