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South Fork Road Bridge at Indian Creek

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1628-DR
ApplicantSiskiyou County
Appeal TypeSecond
PA ID#093-99093-00
PW ID#Project Worksheet 2090
Date Signed2008-08-04T04:00:00

Citation:

FEMA-1628-DR-CA; Siskiyou County; South Fork Road Bridge at Indian Creek; PW 2090
 

Cross-reference:

Environmental Compliance; Endangered Species Act
 

Summary:

Flooding between December 17, 2005, and January 3, 2006, caused a washout of the westerly approach of South Fork Road Bridge at Indian Creek. FEMA prepared PW 2090 for $69,903 to repair the damaged bridge. FEMA determined that the project was ineligible because Siskiyou County (Applicant) completed repairs prior to review by National Marine Fisheries Service (NMFS) or FEMA for compliance with Section 7 of the Endangered Species Act (ESA). In its first appeal, the Applicant claimed that the project was statutorily excluded from National Environmental Policy Act review and that the project had no effect on federally listed species. The appeal was denied because the Deputy Regional Administrator confirmed that the project had the potential to adversely affect federally listed species and required consultation with NMFS before the project was implemented. In its second appeal, the Applicant claimed that it complied with published procedures that were reviewed by NMFS after the work was completed and requested after-the-fact consultation between FEMA and NMFS.
 

Issues:

May after-the-fact consultation with NMFS substitute for consultation prior to funding?
 

Findings:

No.
 

Rationale:

44 Code of Federal Regulations Part 10; Response and Recovery Policy 9560.1, Environmental Policy Memoranda

Appeal Letter

August 4, 2008

Frank McCarton
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal–Siskiyou County, PA ID 093-99093-00,
South Fork Road Bridge at Indian Creek, FEMA-1628-DR-CA,
Project Worksheet (PW) 2090

Dear Mr. McCarton:

This is in response to your letter dated February 6, 2008, which transmitted the referenced second appeal on behalf of Siskiyou County (Applicant). The Applicant appealed the denial by the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to provide $69,903 for repair of a washout at the westerly approach to the South Fork Road Bridge at Indian Creek, as detailed on PW 2090.

FEMA determined that PW 2090 was ineligible because the Applicant completed the work prior to review by FEMA for compliance with Section 7 of the Endangered Species Act (ESA). The Applicant submitted its first appeal on April 23, 2007, to the California Governor’s Office of Emergency Services. In its first appeal, the Applicant claimed that the project was statutorily excluded from National Environmental Policy Act review and that the project had no effect on federally listed species. The Deputy Regional Administrator denied the appeal in a letter dated August 21, 2007, confirming that the project had the potential to adversely affect federally listed species and required consultation with National Marine Fisheries Service (NMFS) before the project was implemented.

The Applicant submitted its second appeal on December 10, 2007. The Applicant claimed that FEMA did not provide notification that a NMFS consultation was required prior to completion of the work. The Applicant contended that the repair work was completed in accordance with “A Water Quality and Stream Habitat Protection Manual for County Maintenance in Northwestern California Watersheds” (Manual). The Applicant also provided a letter from NMFS, dated July 19, 2007, which stated that road maintenance activities conducted in accordance with the Manual would adequately conserve threatened species. The Applicant stated that the project was completed in August 2006 for $21,682.

In its transmittal, OES recommended that FEMA dispatch its biological consultant to the site and interview county and NMFS staff to determine whether the county repair could, in fact, have had an effect upon listed species. OES contends that the project should be funded because the work was completed in accordance with the Manual and because NMFS found, after-the-fact, that the work did not adversely affect federally listed species under ESA.

If a project has potential to affect a threatened or endangered species or its habitat, FEMA must consult with NMFS before approving funding for the project. ESA Section 7 consultations cannot be initiated after the work has been completed. Furthermore, Section 8-A of the Manual states that “work potentially impacting stream habitat with ESA-listed species requires NMFS pre-project notification if federal funding is being used or federal permits are required (ESA Section 7-emergency consultation).” The Applicant did not provide documentation that the work performed on the subject project followed procedures listed in the Manual. We reviewed all information submitted with the appeal and determined that the Deputy Regional Administrator’s decision is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.

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

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Administrator
FEMA Region IX