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City of Victoria Waste Water Treatment Plant
Appeal Brief
Appeal Letter
Citation: FEMA-1257-DR-TX, PA ID 000-00169, Guadalupe-Blanco River Authority, Hazard Mitigation Project
Cross-Reference: Hazard Mitigation, Environmental Review; National Environmental Policy Act.
Summary: In 1998, the Guadalupe River overtopped the earthen ring levee that surrounds the Victoria Waste Water Treatment Plant causing over $2.4 million in damages. The Guadalupe-Blanco River Authority (GBRA) proposed raising the levee by two and one half feet as a hazard mitigation project. FEMA approved Project Worksheet 1432 for $339,507 to fund the project on May 18, 1998, with the stipulation that an Environmental Assessment (EA) must be completed before construction began. GBRA submitted an EA to FEMA in December 1999. The preferred alternative was the construction of a two-and-one-half-foot concrete retaining wall on top of the levee. The Region VI Environmental Officer subsequently informed GBRA that the EA was incomplete because it did not contain clearances from the U. S. Fish and Wildlife Service (USFWS), U. S. Army Corps of Engineers (USACE), and the Victoria County Floodplain Administration. GBRA obtained clearances from USFWS on December 28, 1999, Victoria County Floodplain Administration on January 14, 2000, and USACE on February 15, 2000. Meanwhile, GBRA started construction on January 12, 2000. FEMA Region VI staff deobligated PW 1432 on February 15, 2000 because GBRA began work before FEMA completed the environmental review of the project. The Regional Director sustained the determination on first appeal.
Issue: Since GBRA started construction of the project before FEMA completed the EA, is the mitigation project eligible for funding?
Finding: Project costs after the EA was completed are eligible. Project costs before the EA was completed are ineligible.
Rationale: 44 CFR Part 10.4.
Appeal Brief
| Disaster | FEMA-1257-DR |
| Applicant | Guadalupe-Blanco River Authority |
| Appeal Type | Second |
| PA ID# | 000-00169 |
| PW ID# | 1432 |
| Date Signed | 2000-09-18T04:00:00 |
Cross-Reference: Hazard Mitigation, Environmental Review; National Environmental Policy Act.
Summary: In 1998, the Guadalupe River overtopped the earthen ring levee that surrounds the Victoria Waste Water Treatment Plant causing over $2.4 million in damages. The Guadalupe-Blanco River Authority (GBRA) proposed raising the levee by two and one half feet as a hazard mitigation project. FEMA approved Project Worksheet 1432 for $339,507 to fund the project on May 18, 1998, with the stipulation that an Environmental Assessment (EA) must be completed before construction began. GBRA submitted an EA to FEMA in December 1999. The preferred alternative was the construction of a two-and-one-half-foot concrete retaining wall on top of the levee. The Region VI Environmental Officer subsequently informed GBRA that the EA was incomplete because it did not contain clearances from the U. S. Fish and Wildlife Service (USFWS), U. S. Army Corps of Engineers (USACE), and the Victoria County Floodplain Administration. GBRA obtained clearances from USFWS on December 28, 1999, Victoria County Floodplain Administration on January 14, 2000, and USACE on February 15, 2000. Meanwhile, GBRA started construction on January 12, 2000. FEMA Region VI staff deobligated PW 1432 on February 15, 2000 because GBRA began work before FEMA completed the environmental review of the project. The Regional Director sustained the determination on first appeal.
Issue: Since GBRA started construction of the project before FEMA completed the EA, is the mitigation project eligible for funding?
Finding: Project costs after the EA was completed are eligible. Project costs before the EA was completed are ineligible.
Rationale: 44 CFR Part 10.4.
Appeal Letter
September 18, 2000
Ed Laundy
State Coordinating Officer
Division of Emergency Management
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773-0228
Re: Second Appeal, Guadalupe-Blanco River Authority (GBRA), City of Victoria Waste Water Treatment Plant, Project Worksheet (PW) 1432, FEMA-1257-DR-TX
Dear Mr. Laundy:
This is in response to your August 18, 2000 letter regarding the referenced appeal. GBRA is appealing the FEMA Region VI Regional Director's determination that PW 1432 is ineligible for FEMA funding because GBRA started construction of the hazard mitigation project prior to FEMA completing an environmental review pursuant to the National Environmental Policy Act (NEPA). The hazard mitigation project consisted of raising the elevation of the 4400-foot earthen ring levee that surrounds the Victoria Waste Water Treatment Plant by two and one half feet. The October 1998 flood overtopped the levee causing over $2.4 million in damages to the plant.
GBRA asserts that funding for the project should be restored because the project is categorically excluded from NEPA pursuant to 44 CFR 10.8(d)(2)(ix), (xv), (xvi) and (xvii). These sections of the FEMA regulations define categories of Federal actions that generally do not adversely affect the environment and are, therefore, excluded from NEPA requirements. GBRA states that the Regional Director did not address all issues raised in the first appeal, specifically why the project did not meet 44 CFR 10.8(d)(2)(xv).
FEMA approved PW 1432 on May 18, 1998 for $339,507 to raise the earthen levee that surrounds the Victoria Waste Water Treatment Plant by two and one half feet, with the stipulation that an Environmental Assessment (EA) must be completed before construction began. Subsequently, FEMA approved a PW to fund an EA and GBRA hired a consultant to conduct the assessment. In August 1999, the consultant notified various local, state and Federal agencies of GBRA's proposed project and solicited input for the EA. The chief, Environmental Branch, U.S. Army Corps of Engineers (USACE) in Galveston, Texas advised GBRA's consultant in a letter dated September 23, 1999 that (1) the environmental assessment should define the proposed project's impacts to the floodplain; and (2) the consultant should contact the Chief of the Evaluation Section of USACE to determine if Department of Army permits were necessary.
The FEMA Region VI Environmental Officer received a copy of the EA on December 7, 1999. The document listed as the preferred alternative the construction of a two-and-one-half-foot concrete wall on top of the earthen levee, instead of raising the levee as originally planned. Upon review of the EA, the FEMA Regional Environmental Officer observed that the assessment report did not address the project's impacts on the floodplain or whether Department of Army permits were required (i.e. section 404 permit). Also, the report did not contain a clearance from the U.S. Fish and Wildlife Service (USFWS). These clearances were required to complete the EA and for FEMA to issue a Finding of No Significant Impact. The Regional Environmental Officer notified GBRA of the additional information required to complete the EA on December 14, 1999. GBRA subsequently obtained clearances from USFWS on December 28, 1999, and the Victoria County Floodplain Administrator on January 14, 2000. GBRA requested clearance from USACE in a letter dated January 4, 2000. USACE responded by letter dated February 15, 2000. Meanwhile, GBRA began construction of the retaining wall on January 12, 2000.
I agree with the Regional Director's determination that the project does not meet the requirements of 44 CFR 10.8(d)(2)(ix), (xvi), and (xvii). It would appear that this project meets the intent of 44 CFR 10.8(d)(2)(xv). However, the 4400-foot length of the levee represents an extraordinary circumstance pursuant to 44 CFR 10.8(d)(3)(i) because it is greater in scope or size than is normal for that category of action. Therefore, an EA is required.
All FEMA-funded projects must comply with all Federal and State laws, including NEPA. Generally, FEMA requires strict adherence to environmental requirements and does not fund projects for which it has not completed a NEPA review prior to construction, pursuant to 44 CFR Part 10. However, I considered the following extenuating circumstances in my evaluation of this appeal: (1) the EA was complete except for two clearances; (2) the final clearances, which were received two and 32 days, respectively after construction began, indicated no impacts; (3) the planning and environmental review process accomplished the NEPA purposes of identifying the least environmentally impacting alternative and allowing for public input; and (4) the project as constructed had no environmental impacts. For these reasons, I am approving partial funding for this mitigation project. Project costs incurred after the environmental review was completed on February 15, 2000 are eligible. Project costs incurred from January 12, 2000 to February 15, 2000 are ineligible. GBRA has indicated that approximately 28% of the project cost of $293,950 was incurred prior to February 15. Therefore, I have determined that $211,644, which represents 72% of total project cost, is eligible and the appeal is partially approved.
We strongly encourage applicants to include hazard mitigation in the repair of damaged facilities. Funding for otherwise eligible mitigation projects may be jeopardized, however, if FEMA does not have the opportunity to complete environmental reviews of the projects prior to construction.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: R.L. "Buddy" Young
Regional Director
FEMA Region VI
Ed Laundy
State Coordinating Officer
Division of Emergency Management
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773-0228
Re: Second Appeal, Guadalupe-Blanco River Authority (GBRA), City of Victoria Waste Water Treatment Plant, Project Worksheet (PW) 1432, FEMA-1257-DR-TX
Dear Mr. Laundy:
This is in response to your August 18, 2000 letter regarding the referenced appeal. GBRA is appealing the FEMA Region VI Regional Director's determination that PW 1432 is ineligible for FEMA funding because GBRA started construction of the hazard mitigation project prior to FEMA completing an environmental review pursuant to the National Environmental Policy Act (NEPA). The hazard mitigation project consisted of raising the elevation of the 4400-foot earthen ring levee that surrounds the Victoria Waste Water Treatment Plant by two and one half feet. The October 1998 flood overtopped the levee causing over $2.4 million in damages to the plant.
GBRA asserts that funding for the project should be restored because the project is categorically excluded from NEPA pursuant to 44 CFR 10.8(d)(2)(ix), (xv), (xvi) and (xvii). These sections of the FEMA regulations define categories of Federal actions that generally do not adversely affect the environment and are, therefore, excluded from NEPA requirements. GBRA states that the Regional Director did not address all issues raised in the first appeal, specifically why the project did not meet 44 CFR 10.8(d)(2)(xv).
FEMA approved PW 1432 on May 18, 1998 for $339,507 to raise the earthen levee that surrounds the Victoria Waste Water Treatment Plant by two and one half feet, with the stipulation that an Environmental Assessment (EA) must be completed before construction began. Subsequently, FEMA approved a PW to fund an EA and GBRA hired a consultant to conduct the assessment. In August 1999, the consultant notified various local, state and Federal agencies of GBRA's proposed project and solicited input for the EA. The chief, Environmental Branch, U.S. Army Corps of Engineers (USACE) in Galveston, Texas advised GBRA's consultant in a letter dated September 23, 1999 that (1) the environmental assessment should define the proposed project's impacts to the floodplain; and (2) the consultant should contact the Chief of the Evaluation Section of USACE to determine if Department of Army permits were necessary.
The FEMA Region VI Environmental Officer received a copy of the EA on December 7, 1999. The document listed as the preferred alternative the construction of a two-and-one-half-foot concrete wall on top of the earthen levee, instead of raising the levee as originally planned. Upon review of the EA, the FEMA Regional Environmental Officer observed that the assessment report did not address the project's impacts on the floodplain or whether Department of Army permits were required (i.e. section 404 permit). Also, the report did not contain a clearance from the U.S. Fish and Wildlife Service (USFWS). These clearances were required to complete the EA and for FEMA to issue a Finding of No Significant Impact. The Regional Environmental Officer notified GBRA of the additional information required to complete the EA on December 14, 1999. GBRA subsequently obtained clearances from USFWS on December 28, 1999, and the Victoria County Floodplain Administrator on January 14, 2000. GBRA requested clearance from USACE in a letter dated January 4, 2000. USACE responded by letter dated February 15, 2000. Meanwhile, GBRA began construction of the retaining wall on January 12, 2000.
I agree with the Regional Director's determination that the project does not meet the requirements of 44 CFR 10.8(d)(2)(ix), (xvi), and (xvii). It would appear that this project meets the intent of 44 CFR 10.8(d)(2)(xv). However, the 4400-foot length of the levee represents an extraordinary circumstance pursuant to 44 CFR 10.8(d)(3)(i) because it is greater in scope or size than is normal for that category of action. Therefore, an EA is required.
All FEMA-funded projects must comply with all Federal and State laws, including NEPA. Generally, FEMA requires strict adherence to environmental requirements and does not fund projects for which it has not completed a NEPA review prior to construction, pursuant to 44 CFR Part 10. However, I considered the following extenuating circumstances in my evaluation of this appeal: (1) the EA was complete except for two clearances; (2) the final clearances, which were received two and 32 days, respectively after construction began, indicated no impacts; (3) the planning and environmental review process accomplished the NEPA purposes of identifying the least environmentally impacting alternative and allowing for public input; and (4) the project as constructed had no environmental impacts. For these reasons, I am approving partial funding for this mitigation project. Project costs incurred after the environmental review was completed on February 15, 2000 are eligible. Project costs incurred from January 12, 2000 to February 15, 2000 are ineligible. GBRA has indicated that approximately 28% of the project cost of $293,950 was incurred prior to February 15. Therefore, I have determined that $211,644, which represents 72% of total project cost, is eligible and the appeal is partially approved.
We strongly encourage applicants to include hazard mitigation in the repair of damaged facilities. Funding for otherwise eligible mitigation projects may be jeopardized, however, if FEMA does not have the opportunity to complete environmental reviews of the projects prior to construction.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: R.L. "Buddy" Young
Regional Director
FEMA Region VI