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Enviornmental Compliance

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1628-DR
ApplicantMarin Municipal Water District
Appeal TypeSecond
PA ID#XXX-XXXXX
PW ID#Project Worksheet 3532
Date Signed2009-03-20T04:00:00

Citation:

FEMA-1628-DR-CA, Marin Municipal Water District, Environmental Mitigation Measures, Project Worksheet (PW) 3532
 

Cross-reference:

Request for Public Assistance, Endangered Species Act Compliance
 

Summary:

In the wake of the December 2005-January 2006 severe winter storms, the
Laugnitas Creek flooded causing an embankment washout in four locations. The embankment washout exposed a 34-inch water main which supplies water to nearly 200,000 people. FEMA prepared PW 3532, Category C-Roads and Bridges, on June 8, 2006, to construct a retaining wall to protect the endangered water main. The PW included language indicating endangered steelhead trout and coho salmon were present in the Lagunitas Creek and that the Fish and Game will have to be consulted.
Per Section 7 of the Endangered Species Act, FEMA is required to consult with appropriate regulatory agencies prior to funding work on projects that may impact marine life. However, the Marin Municipal Water District (MMWD) installed the retaining wall prior to the required consultation. FEMA contacted the National Marine Fisheries Service (NMFS) and requested an after-the-fact consultation; however, the NMFS does not consult after the fact and denied the request. Because the required consultation with NMFS was not done prior to MMWD installing the retaining wall, and the request to consult after the fact was denied, FEMA is unable to fund PW 3532.
 

Issues:

1. Did the project require consultation with a regulatory agency prior to
commencing work per Section 7 of the ESA?

Findings:

Yes.
 

Rationale:

Endangered Species Act, Section 7.

Appeal Letter

March 20, 2009

Frank McCarton
Governor’s Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95665

RE: Second Appeal–Marin Municipal Water District, Environmental Compliance,
FEMA-1628-DR-CA, Project Worksheet (PW) 3532

Dear Mr. McCarton:

This letter is in response to your letter dated October 14, 2008, which transmitted the referenced second appeal on behalf of the Marin Municipal Water District (MMWD). The MMWD is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny its request for funding to repair a damaged embankment.

In the wake of the December 2005-January 2006 Winter Storms, an embankment washout
exposed a 34-inch water main along Lagunitas Creek which supplies water to nearly
200,000 people. FEMA prepared PW 3532 (Category C) on June 8, 2006, to construct a
retaining wall to protect the endangered water main. Prior to FEMA reviewing the
project for compliance with the Endangered Species Act (ESA), the MMWD installed a
retaining wall. Section 7 of the ESA requires FEMA to consult with appropriate regulatory
agencies prior to funding work on projects that may impact endangered species. FEMA
contacted the National Marine Fisheries Service (NMFS) and requested an after-the-fact
consultation. The NMFS denied the request because the agency does not consult after the fact.
Because the required consultation was not done, FEMA denied MMWD’s request for funding.

The MMWD submitted its first appeal on April 26, 2007, contending the project was covered by previously existing biological opinions issued by USFWS and NMFS in response to the Lagunitas Creek Sediment and Riparian Management Plan, a 10-year plan implemented by the United States Army Corps of Engineers (USACE) in 1997 to oversee work on a segment of Lagunitas Creek within Samuel P. Taylor State Park. FEMA conferred with the USFWS and NMFS, and both agencies responded that the work requested under PW 3532 was not considered as a part of the 10-year plan. Therefore, FEMA denied the first appeal on June 11, 2008.


On August 21, 2008, the Applicant submitted the second appeal contending that the installation of the retaining wall was an emergency measure. Additionally, the MMWD states that the project was not required to undergo ESA consultation with NMFS because the project did not impact any federally listed fish species or fish habitat. The PW was written to perform Category C work, and the Applicant did not inform FEMA that the nature of the work was an emergency until submitting its second appeal.

Based on my review of the information provided, the MMWD did not meet the ESA, Section 7 requirements prior to commencing work. Therefore, the second appeal is denied.

Please inform the MMWD of this determination. This determination constitutes the final decision of the matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,
/s/
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate

cc: Karen Armes
Acting Regional Administrator
Region IX