Sand Ridge Road Bridge

April 21, 2003

Mr. Dallas Jones
Governor’s Authorized Representative
Governor’s Office of Emergency Services
P.O. Box 419047
Rancho Cordova, California 95741-9047

Re: Second Appeal – El Dorado County, PA ID 017-00000, Sand Ridge Road Bridge, FEMA-1155-DR-CA, Damage Survey Reports (DSRs) 98664, 98665, 39947, 80053

Dear Mr. Jones:

This letter is in response to your November 1, 2002, letter that transmitted the referenced second appeal on behalf of El Dorado County (County). The County is appealing the Federal Emergency Management Agency’s (FEMA’s) determination to de-obligate the funding for the repairs to the Sand Ridge Road Bridge. The County requested that FEMA, now part of the Emergency Preparedness and Response Directorate of the Department of Homeland Security, reinstate DSRs 98664 and 98665 for $53,445 and $4,320, respectively. It also requested that FEMA obligate a supplemental DSR in the amount of $154,689 for a change in the scope of work. The total amount requested is $212,454.

Heavy rains and runoff damaged the concrete abutments and railing of the Sand Ridge Road Bridge in December 1996. In February 1997, FEMA approved DSR 98664 for $53,445 to repair the visible damage and DSR 98665 for $4,320 to repair damage to the middle bridge pier below the waterline. On February 25, 2000, the County sent a request for project verification, scope approval, environmental clearance, and supplemental funds to the Governor’s Office of Emergency Services (OES) for the permanent repair work. The United States Fish and Wildlife Service (USFWS) required a Section 7, Endangered Species Act (ESA) consultation because it had designated the area of the project site as a proposed core area for the California Red Legged Frog (CRLF). The County awarded a contract for the permanent repair work to start late in July 2000 because it was required by a Stream Alteration Agreement with the California Department of Fish and Game to complete the work by October 15, 2000. FEMA advised the County not to start work until the environmental clearances were complete, or it may jeopardize funding. On August 25, 2000, FEMA informed the County that it and the USFWS would be making a site visit on September 6, 2000. However, the County told the contractor to commence work on August 28, 2000, because it had the deadline of October 15, 2000, to complete the work and the safety of the public to consider. USFWS decided it would not complete the Section 7 ESA consultation because the work had begun when it visited the site. Subsequently, FEMA notified the County through OES that project funds would be de-obligated.

The County submitted its first appeal on November 17, 2000, disagreeing with FEMA’s determination that the County had not allowed FEMA the opportunity to comply with the National Environmental Policy Act (NEPA). The FEMA Region IX Acting Regional Director denied the appeal on October 18, 2001, because FEMA was legally prohibited from funding a project where the environmental review process was not completed before the start of the permanent repair work.

The County submitted its second appeal on January 18, 2002. In its appeal letter, the County stated that it gave FEMA ample time to implement the environmental review necessary for this project. The County also disagreed with FEMA and USFWS that a Section 7 Clearance under the ESA is required for this project.

All applicants for FEMA-funded projects must comply with NEPA requirements. The USFWS had designated the project site as a proposed core area for the CRLF; therefore, a Section 7 Clearance under the ESA was required for this project. FEMA conveyed this requirement to the County during the summer of 2000. The County agreed to meet with FEMA and the U.S. Fish and Wildlife Service at the project site on September 6, 2000, to begin the consultation. However, the County chose to start work on the project before meeting was conducted and the environmental review was complete. It appears that the approval the County received from the U.S. Army Corps of Engineers was based on the Section 404 Nationwide Programmatic Agreement. Under the Agreement, proposed projects are statutorily excluded from Section 404 if there are no endangered species at the site. The USFWS had designated the project site as a proposed core area for the CRLF. Therefore, consultation with USFWS and a Section 404 permit were required. Because the County completed the project without obtaining a Section 7 Clearance and a Section 404 permit, I have no basis for approving this appeal.

The County stated that FEMA should approve the appeal because the USFWS Service exceeded its authority by requiring consultation where there was no evidence that the CRLF existed at the site. It cited the Ninth Circuit Court opinion in case of Arizona Cattle Growers’ Association, Jeff Menge, versus United States Fish and Wildlife, Bureau of Land Management and the Southwest Center for Biological Diversity to support its position. While that case held that an Incidental Take Statement is not necessary unless there is evidence that the endangered species existed on the land, FEMA was only requiring a completed Section 7 consultation. The result of that consultation is unknown. Therefore, we do not believe that the cited Ninth Circuit Court case applies to the current appeal.
Based on the above, I am denying the appeal.

Please inform the County of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

Sincerely,
/S/
Laurence W. Zensinger
Acting Director
Recovery Division
Emergency Preparedness and Response Directorate

cc: Jeff Griffin
Regional Director
Region IX