CECW-AR 10 August 1999 Assessment of Responses to Comments and the May 1999 Rio Grande Floodway, San Acacia to Bosque del Apache Unit Socorro County, New Mexico Draft Limited Reevaluation Report and SEIS
NOTE: Original HQUSACE Comments to SPA via memo dated 13 February 1998.
SPA draft Responses to HQUSACE comments via e-mail dated 4 March 1998.
HQUSACE Required Actions back to SPA via memo dated 20 May 1998.
SPD Additional Required Actions via teleconference dated 14 Dec 1998.
SPA Compliance Memorandum to HQUSACE via memo dated 7 April 1999.
HQUSACE Assessment via this document dated 10 August 1999
NOTE: Attachments mentioned in the compliance memorandum paragraphs have been removed from this document. They are available in CECW-AR files if needed.
ASSESSMENT OF RESPONSES TO PREVIOUS COMMENTS
Comment: 1. Formulation. It appears that the report does not correctly define the future without project condition with respect to the railroad bridge, and therefore the report is not in compliance with ER 1105-2-100, 2-12.h.(1)(d) which states, "In accordance with Section 905 of WRDA '86, the report will also describe, with reasonable certainty, the economic . . . and engineering . . . benefits and costs." Replacement of the bridge is a significant cost ($8.2 million) item and it is uncertain whether there is justification for including this as part of the project. The reporting officers need to address two areas. (a) If the railroad will have to replace the bridge in the future anyway, the replacement may not be a required project element. The report states (section III-6.E) that the bridge is only 5 feet above grade and the river bed continues to aggrade. Explain what will happen to the bridge under the without project condition during the 50-year period of analysis. Provide justification for including the bridge replacement as a project element. (b) Provide the benefits attributable to replacing the bridge, first and last added to the other project elements, to comply with ER 1105-2-100, table 2-1, item 3.a., which provides for incremental analysis of project elements.
RESPONSE:
(a) The District has coordinated the replacement of the San Marcial railroad bridge with the Burlington, Northern & Santa Fe (BNSF) Railroad Company. They have no funding or plans to replace this bridge in the near future. They are of the opinion that it could easily last several decades or it could fail next year. As sediment continues to accumulate under and upstream of the bridge, the railroad will increase their maintenance program to attempt to extend the bridge's life. Should minor damage occur as the result of a flood, they will attempt to repair it immediately. However, the threat of failure during a moderate to large flood event is very real. Should the bridge fail, the railroad will attempt to replace it as soon as possible with a similar structure. This track is a major north-south route and it cannot be abandoned. Therefore, the risk of the bridge failing will be analyzed by the study team, and a frequency of failure interval will be determined. This information will then be used to calculate the economic benefits to the bridge infrastructure, and for the interruption in rail service. This data will be included in the District's future, without project write-up in the LRR.
(b) Replacement of the bridge will result in: flood control benefits because the design height of the levee upstream of the bridge is lower; environmental benefits due to the opportunity to change upstream reservoir releases to more closely mimic the natural flood hydrograph of the basin; water operation benefits due to the potential release of higher upstream discharges during major flood events in an effort to detain less flow behind existing reservoirs; transportation benefits due to the protection afforded the railroad; infrastructure benefits to the bridge structure; and, sediment benefits due to the bridge's higher capacity to pass sediment laden flows through the study area. Benefits will be calculated for all of these benefit categories including ecosystem restoration. The LRR will be modified to include further discussions describing these analyses and results.
REQUIRED ACTION. The existing condition explanation as stated in the response will be added to the report. Justification of the San Marcial railroad bridge replacement as a project element may be a combination of both economic benefits in compliance with ER 1105-2-100 and ecosystem restoration benefits measured as required in EC 1105-2-210. For ecosystem restoration justification, it is critical to evaluate habitat units with the bridge replacement compared to the without-replacement condition. In the incremental cost analysis, the cost of the habitat units gained with-replacement must be shown to be reasonable compared to other alternative methods of achieving similar levels of habitat unit output. The district my wish to estimate other beneficial impacts to habitat that will occur indirectly in areas both upstream and downstream of the bridge as a result of restoring a more natural flow and sediment regime to the flood plain. Costs for this bridge replacement should be allocated to flood control and ecosystem restoration based on the proportion each purpose contributes toward justification, and appropriate Federal/non-Federal cost sharing applied to each purpose's allocated cost. They are to be provided in the revised report. CESPA will submit documentation concerning the justification, cost allocation, and cost sharing to HQUSACE prior to releasing the draft report for public interest review.
Compliance Memorandum - 1. In addition to the information
contained in response (a) above, the study team has conducted additional existing
condition analyses for the railroad bridge. A summary of these analyses follows. Under
existing conditions, the bridge has a capacity of 3,200 cfs, which is equivalent to
approximately a 2-year flood event. This is the point when water under the bridge just
begins to touch the low steel of the bridge structure. Upon coordination with railroad and
Bureau of Reclamation (BoR) representatives, and after additional hydraulic data gathering
and analysis, it was concluded the bridge structure would begin to sustain damages when
water is 1-foot above low steel and pushing against the bridge deck structure. It is
important to note that the deck structure is approximately 6-feet thick (or high). This
point is equal to approximately the 9-year flood event. This is also the point when the
railroad would begin to detour all traffic through another route. If the water were to
subsequently subside and not flow any higher than 1-foot above the low steel, then the
railroad would resume traffic across the bridge without any necessary repairs. The next
data point analyzed is when the bridge would suffer enough damages such that the railroad
would be required to conduct significant repairs before traffic could resume across the
bridge. This point was determined to be when water is 4-feet above the low steel and
pushing against the deck structure (note that the water is still 2-feet below the top of
the bridge deck and the railroad tracks). This point is equivalent to approximately an
11-year flood event, and it would take the railroad about 1 month to conduct repairs
before traffic could resume across the bridge. The railroad has stated it would require
approximately $3 million to repair the resulting damages, which would consist of moderate
damage to the bridge deck, erosion and moderate damage to the piers, and moderate erosion
of the abutments. Finally, the last significant data point analyzed is when complete
failure occurs to the bridge. This was determined to occur when water was flowing 1-foot
deep over the top of the bridge deck and railroad tracks. At this point, there would
likely be separation of the bridge deck from the piers, extensive damage to the deck
structure, and complete erosion of both bridge abutments. This point is equivalent to
approximately a 28-year flood event. It is estimated it would take the railroad 1-year to
construct a new bridge to replace the destroyed structure. It is also important to note
that a completely new bridge, piers and abutments would be required. The existing bridge
has been raised on its piers 30 to 40-feet in the last 100-years, and the piers are at the
limits of their design. Thus failure of the bridge deck would require the construction of
a completely new structure. It is currently estimated to cost $7.7 million to construct a
new bridge, including piers and abutments. During those times that the bridge would be
inoperable, the reroute has been calculated to be an additional 105-miles. The railroad
informed the study team that this track carries 25-30,000 tons of goods per day. Thus, any
traffic reroute would result in damages equal to $126,000 per day.
With this data it is possible to calculate the existing condition, average annual damages
due to traffic rerouting and damages to the bridge, which are $1,556,000. This information
is the existing, pre-project condition, and the projected future, without project
condition, which will be incorporated into the report within Chapter IV. Project Future
Without Conditions, paragraph IV-5.E.(b) Transportation Facilities and Activities, before
the LRR goes out to the public for review. It is important to note that the existing
condition of the bridge is considered to be good, to very good. Other than the piers
having been extended to their maximum design, the bridge structure, as well as its piers
and abutments are in good shape. Due to the extensive operation and maintenance program
the railroad conducts on all its bridges, there is no reason to expect significant
deterioration to occur in the future, without project condition. The railroad has stated
the San Marcial bridge could easily last another 50-100 years with proper maintenance and
no major flood events. Therefore, it can be concluded that unless a 28-year or larger
event flood occurs, the existing bridge has a life of over 50-years.
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Compliance Memorandum - 2. Numerous potential benefit categories
were analyzed during the conduct of the bridge study. These included; 1) infrastructure
benefits to the bridge itself, 2) water operation benefits due to potential increases in
releases from upstream reservoirs, 3) transportation benefits due to interruptions in rail
service, 4) reduction in levee design height due to higher flood capacity with the new
bridge, 5) sediment benefits attributable to larger capacity of proposed bridge, and 6)
environmental quality benefits due to capability to more closely mimic the natural flood
hydrograph, which is advantageous in assisting the endangered species of the basin, and
their habitat. Initially, an attempt was made to only evaluate those benefits due to flood
control, which are categories 1) through 5). Should the bridge not be completely justified
by flood control benefits, evaluation of the 6) environmental quality category would be
conducted to determine what portion of the remaining bridge costs would be justified by
this category. This was important because the cost sharing for flood control features is
12.5% local versus 87.5% Federal, and that for environmental features is 35% local versus
65% Federal. Also, preliminary analyses determined that benefit categories 2) operation
benefits and 4) reduced levee height, were minimal, and were therefore eliminated from
further study.
Categories 1) infrastructure benefits, and 3) transportation benefits were calculated using the pre-project conditions noted in the previous paragraph (Compliance Memorandum
-1). The assumption was made that when the bridge completely failed that the railroad would replace the bridge at a similar cost and with similar characteristics to the proposed project. The project bridge is designed to withstand flows up to the .0017 event at which point it would be destroyed. It would sustain damages at a .0037 flood event, such that repair costs would be approximately $3,000,000 and time out of service would be one month. A .0039 flood event would cause transportation reroutes for approximately 1 1/2 days. To calculate average annual damages and benefits the following procedure was used:
The with-project condition was estimated by measuring the area under the damage-frequency curve. After a damaging event the bridge was assumed to be restored to its original condition.
Under the without-project condition, the damaging events are more frequent (see Compliance Memorandum - 1). The replacement of the bridge with an improved bridge would cause all damages from the time of replacement to be less than those with existing bridge. Therefore, over the life of the project (50 years), there are 51 different scenarios. Each relates to the year the bridge is destroyed. For instance, if the bridge is destroyed in year 4, during the first 3 years there are probabilities of damages to transportation and infrastructure based on the probabilities of the existing bridge being overtopped or damaged. Then from years 5 to 50, there are a different set of probabilities for each level of damage based on the new bridge. The areas under the curve were measured for each of the 51 possible scenarios. Note that the 51st scenario is one in which the existing bridge is never destroyed. The results were than combined based on probability of occurrence (the probability that the bridge had not been destroyed previously times the probability that the bridge would be destroyed in a given year).
Category 5) sediment benefits, were computed using existing information provided by the BoR, based on their on-going channel operation and maintenance program in the San Marcial reach. They have stated to the team that their crews currently remove 200,000 cubic yards, or 270,000 tons, of sediment from the San Marcial area every year. This figure is only for the approximately 5-mile long reach immediately upstream of the railroad bridge. The removal of this sediment is required simply to maintain the status quo. In other words, without this work, aggradation within the main river channel would continue to the point where the railroad bridge would become inoperable and would fail, requiring complete replacement (current capacity is equal to the 2-year event). It is important to note that the 45-mile study reach produces several times this amount of sediment (contributing drainage area is 8,500 square miles), some of which is removed by the Sponsor or BoR, some of which flows into the low flow conveyance channel during failures of the spoil bank levee, and some of which causes the continued aggradation of the entire lower valley river system. Therefore, it was concluded that removing the constraint caused by the existing railroad bridge would, at a minimum, remove the need to continually remove 200,000 cubic yards of sediment in the immediate 5-mile reach above the bridge, to prevent its failure. Using a cost of $2.50 per cubic yard for removal results in $500,000 average annual benefits which can be attributed to the new bridge. However, because there are other upstream constraints which must also be corrected, such as the levees at Belen, it is projected that releases will be increased from an existing 3,200 cfs to approximately 6,000 cfs at San Marcial, immediately upon completion of the new bridge (year 5). Once the remaining levee projects are built and operational, which is expected to occur 5 years after completion of the bridge (year 10), releases can be increased to approximately 9,000 cfs at San Marcial. Therefore in year 5 through year 10 (assuming today is year 0), average annual benefits are estimated to be one-half of their full potential, or $250,000 per year. Then in year 10, the full $500,000 of average annual benefits will be realized from that point on throughout the life of the project. Summarizing these costs throughout the life of the project and then annualizing the result equals average annual benefits of $260,000.
Therefore, to determine the full extent of the flood control benefits attributable to the new railroad bridge, we must add benefit categories 1) infrastructure benefits to the bridge structure, 3) transportation benefits due to any rerouting of traffic, and 5) sediment benefits as a result of the removal of the existing bridge constraint. Adding these categories results in average annual benefits attributable to the new bridge of $1,714,000. It is important to note that none of these benefit categories apply to the levee element of the project and are specific to the railroad bridge alone.
Concurrent with the above pre-project and future without project analyses, additional design/cost studies were undertaken for the new railroad bridge. These included realigning the bridge at a more perpendicular angle with the river, resulting in a shorter bridge design, maximizing the length of the spans thereby reducing the number of piers, and using prefabricated beams delivered to the site via railcar. The bridge cost was therefore reduced to a present day estimate of $7,700,000 (1998 price level). Annualizing this cost over the life of the project results in an average annual cost of approximately $588,000 (Note that operation and maintenance costs will be reduced with the new bridge when compared to the existing bridge, and can realistically be included as a project benefit. They were, however, ignored for this analysis and assumed to be constant for both the pre-project and post-project conditions). Finally, conducting the benefit cost analysis with these numbers results in a B/C ratio of 2.9:1 for the bridge, independent of the other project elements. Also, because the bridge element was completely justified by flood control benefits, a detailed environmental benefit analysis was not conducted. Instead, the EQ benefits will be discussed qualitatively, mainly in terms of number of acres which will be returned to natural conditions, in the LRR and SEIS before they go out for public review. Lastly, it should be noted that several smaller flood control benefit categories were not included in this analysis due to the extensive benefits obtained from traffic reroutes, infrastructure, and sediment benefits for the bridge. Some of the categories not investigated include storage benefits at upstream reservoirs, reduction in upstream levee heights with the new bridge, and reduced operation and maintenance requirements associated with the new bridge.
Finally, an incremental analysis was also conducted for the Tiffany area, which is designed to function as a sediment management feature of the recommended plan, as described in Chapter II, Plan Formulation, paragraph II-2.C.(a), Design Features, of the Draft LRR. Benefits of this feature are mainly due to a reduction in the sediment removal activities which are currently required for the 45-mile study reach from San Acacia to San Marcial. In addition to the 200,000 cubic yards the BoR currently removes from the San Marcial reach annually, there are several times this amount of sediment produced throughout the study reach. It is anticipated a portion of this sediment can be deposited in the Tiffany area. Currently this sediment is either removed by the Sponsor or the BoR, deposited in the low flow conveyance channel when the spoil bank levee fails, and deposited throughout the study area in the overbanks and in the creation of sand bars. The inlet weir to control flow into Tiffany has been designed such that when the river flow is at 1,500 cfs, then 275 cfs would be diverted into the basin. The results of a probability analysis indicate that, on the average, there are 69 days a year when river flows equal or exceed 1,500 cfs. Also, based on available data which the BoR has published for this reach of the Rio Grande, a flow of 275 cfs would carry with it approximately 2,166 tons of sediment per day. This equates to a total of 150,000 tons of sediment for 69 days, which is also equal the yearly rate, since there are only 69 days a year when this magnitude of flow can be expected. Thus it can be concluded that 115,000 cubic yards of material will be deposited in Tiffany each year. Using the same removal costs noted above of $2.50 per cubic yard indicates the value of this sediment removal is equal to $288,000. Because this volume of sediment would no longer have to be removed from the river, the low flow conveyance channel, or the overbank areas, this figure becomes the estimated savings which can be achieved each and every year throughout the life of the project. Note that these savings can be achieved immediately upon completion of the Tiffany element, as the current capacity of the river is much greater than the 1,500 cfs used to design the basin and its appurtenant structures. Therefore, average annual sediment benefits for Tiffany are equal to approximately $288,000. The first cost to construct the Tiffany element is currently estimated at $757,000 (1998 price level). Annualizing the total cost for this element equals approximately $70,000 (includes operation and maintenance costs) and comparing it to the average annual benefits produces a B/C ratio of 4.1:1 for this element of the project. These numbers indicate that the Tiffany sediment management area is also incrementally justified by flood control benefits alone. Of course there would also be environmental quality benefits accruing with this element of the plan. However, they have not been quantified but will instead be discussed qualitatively, mainly in terms of number of acres which will be returned to natural conditions, in the LRR and SEIS before it is released for public review.
These updated analyses on the bridge and the Tiffany area will be incorporated into the LRR as appropriate, especially in the following areas; Chapter II, Plan Formulation, paragraph II-2.C.(k), Cost Allocations and Cost Apportionments; Chapter III, Existing Conditions, paragraph III-2.A.(c), Sedimentation; Chapter III, Existing Conditions, paragraph III-6.E.(b), Transportation Facilities and Activities; Chapter IV, Project Future Without Conditions, paragraph IV-1.A.(c), Sedimentation; Chapter IV, Project Future Without Conditions, paragraph IV-5.E.(b), Transportation Facilities and Activities; Chapter V, Evaluation of Effects of Alternatives and the Recommended Plan, paragraph V-1.A.(c), Sedimentation; Chapter V, Evaluation of Alternatives and the Recommended Plan, paragraph V-6.E.(b), Transportation Facilities and Activities; Appendix H, Technical Appendix; and, Appendix I, Economics.
ADDITIONAL REQUIRED ACTION - 1. The original HQUSACE issue from the 13 February 1998 memorandum has not been adequately addressed. The basic question is whether or not a "taking" occurs under conditions of rehabilitating the levee but leaving the railroad bridge in its existing condition. The taking, if it should occur, would be the result of increased damages to the bridge under the with-project condition in comparison to the without-project condition (the "project" being the recommended levee). The taking, if it occurs, then becomes a compensable interest to the railroad. There is a standard real estate, analytical analysis which must be completed to support the taking, which may include hydraulic analyses to compute induced flooding and research of historical damage data to support the flood threat to the bridge.
Compliance Memorandum - 3. A Taking Analysis was prepared by the District to determine whether induced flooding to the bridge will result in a taking of property, resulting in the requirement to pay for just compensation pursuant to the Fifth Amendment. The description and results of the Taking Analysis are attached to this memorandum as Attachment 4. [CECW-AR-M Note: Attachment pulled from this document is available in our files.] The analysis supports the conclusion that the recommended levee will directly cause increased flooding at the railroad bridge at nearly double the existing condition frequency of flooding. These floodwaters will inevitably occur and cause significant damages to the bridge. In view of the standards articulated by the courts, it is the District’s opinion that the Taking Analysis supports a determination that the recommended levee will result in a taking of property requiring payment of just compensation pursuant to the Fifth Amendment of the United States Constitution. Therefore, the inclusion of the rehabilitated railroad bridge in the recommended plan of action is justified solely on this basis. All additional flood control and environmental restoration benefits are ancillary and only serve to indicate the desirability of this element of the recommended plan.
ADDITIONAL REQUIRED ACTION - 2. The dollar amount of benefits to properties
other than the railroad is a token amount. This does not rectify the sole beneficiary
issue. HQ and SPD strongly recommend SPA review its cost benefit analysis for the railroad
and seek to establish whether the majority of benefits are flood control and whether a
significant amount of benefits are environmental restoration benefits. Should the results
of this analysis indicate that nearly half of the benefits are for environmental
restoration, then the sole beneficiary issue would be resolved. However, such an
allocation of benefits may subject the bridge rehabilitation to a reauthorization issue.
SPD and HQ will review this potential issue and provide feedback to the District. In
addition, the restoration benefits must be converted to, and documented in dollars based
on an acceptable method of analysis. Should the District conclude that only a small amount
of the benefits are for environmental restoration, say 15%, with the remainder being flood
control benefits, then the sole beneficiary issue will remain. Finally, any project costs
allocated to environmental restoration must be cost shared at 65% Federal versus 35%
non-Federal.
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Compliance Memorandum - 4. Because of the results of the Taking
Analysis discussed in Compliance Memorandum – 3. above, there is no longer a need to
justify the railroad bridge with flood control and environmental benefits. These benefits
become ancillary benefits. The inclusion of the bridge with the recommended plan is
justified based on the induced flood damages to the bridge from the proposed levee
rehabilitation. Still, the flood control benefits and environmental benefits will be
summarized in the LRR/SEIS before it is sent to the public for review. In summary, the
relocation of the San Marcial railroad bridge would result in allowing higher releases
from upstream reservoirs during flood events, providing for more natural flooding within
the floodway, more avulsions of the river channel, and ponding of waters after the passing
of flood events. When the San Marcial railroad bridge is constructed and fully
operational, discharges through the study reach could be increased such that an additional
5,800 acres of overbank per year would be inundated. During the 50-year life of the
project, this amount of inundation would likely occur during the 3-year flood event, 17
times. When the upstream levee projects are completed (Belen, Isleta, and Mountain View),
discharges through the project area could be increased further such that an additional
5,600 acres over and above the 5,800 acres would become inundated with the 5-year flood
event--an increase of 11,400 acres from the existing condition. Therefore, during the
50-year life of the project, this additional inundation of the overbank would likely occur
approximately 10 times.
ADDITIONAL REQUIRED ACTION - 3. The potential for a HTRW issue on the railroad bridge embankment approaches must be resolved and documented before public review of the LRR/SEIS. This issue must be addressed for both sides of the river (bridge).
Compliance Memorandum - 5. There is always the potential for a HTRW issue when dealing with railroad structures due to their very nature (dripping oil and fuel from the trains, spraying of the embankments for weed control, creosote soaking into the surrounding soil from the ties, etc.). By removing the existing bridge and replacing it with a new structure, the HTRW issues associated with the old bridge will be reduced significantly. However, there is still the potential for a HTRW issue with the approach embankments. The District has proposed leaving the existing bridge approaches and their embankments within the control of the BNSF railroad. The railroad currently owns the land under the existing bridge and its approaches in fee simple. In order to build the new bridge along the new alignment will require the acquisition of new easements from the Bureau of Reclamation along the proposed route. However, it is the intention of all concerned that the railroad will continue to own the land along the old bridge alignment. It will therefore, become the railroad’s responsibility to address any issues, HTRW included, that may occur along their old alignment. The railroad has decades of experience removing old tracks and their underlying embankments, and they will be the best choice for removing the San Marcial embankments as well, should they so choose. This recommendation has been coordinated with the Bureau of Reclamation and the BNSF railroad and they support this plan of action. Thus, costs to remove the old bridge have been included in the total project costs, but costs to remove the existing bridge approaches have not been included as this will become a non-Federal responsibility.
ADDITIONAL REQUIRED ACTION - 4. The District’s documentation is weak regarding references to past damages to the railroad bridge. There is no supporting documentation regarding dates of damaging events, response by the railroad to flood events, dollar costs to the railroad for such events, and time out of service due to flood events. The District’s response to Additional Required Action Item – 1 cannot likely be addressed fully without this type of information. In the absence of such information, HQ and SPD do not have a way to compare railroad damages with and without the levee rehabilitation work being proposed.
Compliance Memorandum - 6. The "Territory Office" responsible for the San Marcial railroad bridge has changed at least three times, from Amarillo, to Topeka, to Los Angeles, to San Bernardino, where it currently resides. A long time employee of the BNSF railroad was aware of a file containing the history of the San Marcial bridge which moved from office to office, but it apparently was lost during one these moves. However, from the limited available files and conversations with old timers, a cursory knowledge of the bridge’s history can be surmised. The railroad is aware of two major incidents of flooding requiring major work on the bridge with long delays and detours in rail service. The first was in the late 1920’s. As a result of a major flood event, the entire bridge and approach tracks were completely buried under sediment. There were also several buildings, including a roundhouse, which were all buried under sediment. The railroad bridge was unearthed, new piers were designed and constructed, and the bridge was set on these raised piers. Sidenote: District files indicate there were two flood peaks in 1929, one in August and the second in September. Flows were estimated to have peaked at 24,000 cfs and 60,000 cfs, respectively, at San Marcial. It was during the September 1929 peak that the villages of San Acacia, San Antonio and San Marcial were destroyed. The second event remembered by railroad employees occurred in the early 1940’s. Once again, this was a major event which resulted in loss of rail service for a significant amount of time. The piers were extended and the bridge raised on the rehabilitated piers. Railroad personnel believe this was the last time that the bridge was raised. Apparently its current elevation is a result of the 1941 event. Sidenote: District reports do refer to a flood of 1941 on the Rio Grande, but there are few details about it. There may well have been other events in addition to these two, but BNSF employees are unaware of any others. BNSF representatives also stated they are aware of the large amounts of sediment that have accumulated under the bridge in recent years. They stated they visited the site in the mid-1980’s and there was approximately 8-10 feet of clearance under the bridge deck. They again visited the site in about 1989 and there was only 2 feet of clearance under the bridge. They also described a close call in about 1990 when water was just touching the low steel of the bridge. Although traffic was not stopped, the railroad was very concerned and monitored the bridge closely. This is the extent of available information regarding the flood history of the San Marcial railroad bridge. Unfortunately, most quantitative data has been lost, but enough qualitative information exists to suggest the existing condition flood threat to the bridge is severe.
HQUSACE REVIEW TEAM ANALYSIS: The original comment stated that two actions had to be completed: (1) provide justification for including the bridge replacement as a part of the recommended project, and (2) provide the incremental benefits attributable to replacing the bridge. The review team did not accept previous flood control benefit estimates for the bridge (several paragraphs above) that were based on flood damages to the bridge itself. The May 1999 LRR provides justification for including the bridge replacement in the project with a determination that the authorized/recommended levee will result in a taking of property that requires compensation for the bridge owner by a replacement facility. We accept that justification for including the bridge. The final report needs to explain clearly why the railroad bridge should be viewed as a construction item rather than a relocation item that is the sponsor’s responsibility. (Also see assessment for comment 12.f.(1) below).
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Comment: 2. Environmental.
a. Mitigation. The LRR and integrated DSEIS does not make a clear distinction between F&WL mitigation required for damages caused by the recommended plan and habitat improvements proposed for endangered species. Table 9, page II-27, shows that conservation and mitigation are lumped together and cost-shared at 100 percent Federal cost. Mitigation for F&WL damages is cost-shared according to the purpose that caused the damage (in this case, flood damage reduction). Conservation has different cost-sharing allocations, depending on the purpose of the conservation. The district should clearly identify lands, measures, and costs required for F&WL mitigation and how it is cost-shared.
RESPONSE: The study team will reevaluate the environmental impacts of the recommended plan to more accurately identify any lands, measures, and costs which may be required for mitigation and those associated with conservation/restoration. The LRR will also be revised to indicate that the mitigation measures will be cost shared at the same percentage as for the flood control features, which is 12.5% non-Federal, 87.5% Federal. The ecosystem restoration features will be cost shared 35% non-Federal, 65% Federal.
REQUIRED ACTION: CESPA will submit to HQUSACE prior to releasing the draft report for public interest review, documentation on the reevaluation of the environmental impacts of the recommended plan to identify any lands, measures, and costs which may be required for mitigation purpose and those associated with restoration purpose.
Compliance Memorandum - 7. A reevaluation of environmental impacts due to the recommended plan has been completed and the team is still of the opinion that there are no direct impacts attributable to the recommended plan. In fact, the study team has determined that within the southern two-thirds of the levee project, the rehabilitated levee toe would be located landward of the existing levee toe, resulting in the reclamation of 85 acres into the active floodplain. The LRR will be refined to indicate that there is no mitigation plan included with the flood control plan because there are no direct impacts. The study team has also reevaluated the environmental restoration plan discussed in the draft report. The ten habitat improvement plan (HIP) sites were field surveyed during this evaluation and they were all found to be vastly improved from when they were first selected 2-3 years ago. Desirable native vegetation has become established and is flourishing in these areas. It is highly likely they will continue to improve environmentally in the next five years before project construction begins. Thus, the need to improve these areas no longer exists. A survey of the entire study reach was also conducted and replacement areas which could benefit from environmental restoration efforts were not found. Therefore, the study team has concluded that the HIP sites are no longer needed or recommended with this plan. Finally, the inclusion of the Tiffany sediment management area with the recommended plan will result in additional ancillary environmental restoration benefits. The acquisition and management of these 2,050 acres would result in the loss of about 900 acres of undesirable salt cedar and a gain of about 45 acres of river channel and sand bar, 1,150 acres of coyote willow, and 110 acres of cottonwood/willow forest. Thus, it is the team’s conclusion that the recommended plan not only has no direct negative impacts on the study area,
but instead has numerous positive environmental restoration benefits. The LRR and SEIS will be modified to reflect the deletion of the HIP and the lack of any mitigation plan or features.
HQUSACE REVIEW TEAM ANALYSIS: The review comment was not intended to reduce the size of the recommended plan, only to have the mitigation and environmental restoration elements properly identified by purpose, cost shared, and otherwise in compliance with policy and law. The response and the revised LRR have eliminated fish and wildlife mitigation and the previously recommended habitat improvement plans for endangered species from the report recommendations. The review team has no basis to question these changes in the recommended plan. This issue is resolved.
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Comment: b. Endangered Species Conservation. In response to the
Biological Opinion provided by the USFWS, and with the authorities of Sec. 2(c) of the ESA
and Sec. 906(e) of WRDA 1986, the district proposes to restore about 2,500 acres of
habitat for the Rio Grande silvery minnow and the southwestern willow flycatcher. Under
the USFWS reasonable and prudent alternatives, the district proposes to monitor the
restored endangered species’ habitats for at least five years and take appropriate
remedial action if design objectives are not met. The district should provide a
"worst case" estimate of what such remedial actions could consist of and how
much cost might be envisioned in carrying them out.
RESPONSE: The study team will provide a "worst case" estimate of what remedial actions might consist of and their costs if design objectives of the habitat conservation areas are not met, before finalizing the report.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 8. The monitoring proposed for the Tiffany area will not focus directly on the habitat and its regeneration. Instead, its primary purpose will be to assess the amount of sediment accumulating in the Tiffany basin, and secondarily, the affect of sediment accumulation on the environmental characteristics of the basin. In 1997, the BoR surveyed approximately 30 cross-sections through the basin. These cross sections will be resurveyed for 5 consecutive years, beginning upon completion of the project. The gathered data will be used to establish an operation procedure to be used by the Sponsor in out years to control the diversion of flows and sediment into the basin. In addition, qualitative data will be gathered regarding the regeneration of quality habitat to assist the endangered species of the basin. It is anticipated that enough sediment and water can be diverted into Tiffany initially to kill off the undesirable Salt Cedars (they cannot survive in overly wet conditions). Once these trees have been eliminated, incoming flows will bring in the necessary seeds to allow regeneration of native habitat such as Cottonwoods and Willows. Should this process not be progressing quickly, then diversions in future years can be increased. Thus, it is hoped the diversion of flows and deposition of sediment in the basin will assist in the natural regeneration of the area. It is estimated it will cost approximately $30,000 per year to conduct these surveys, which will total $150,000 (1998 price level) over the 5-year monitoring period. This cost has been added to the estimated first cost to construct the Tiffany basin, resulting in a total first cost of $757,000, as was noted in Compliance paragraph 2. There are no plans to include any direct environmental restoration features, such as tree plantings or channel shaping, with the Tiffany sediment management plan. All environmental benefits will be ancillary to the flood control and sediment management purpose.
HQUSACE REVIEW TEAM ANALYSIS: The original comment addressed "remedial measures." We are not sure what the Tiffany area monitoring has to do with remedial measures for endangered species as these measures were proposed in the November 1997 draft LRR. It appears the issue of remedial measures is no longer a concern because the remedial measures are no longer part of the recommended plan. However, the LRR proposes post-construction monitoring for the Tiffany area (page II-16). Post-construction monitoring only applies to ecosystem restoration features (EC 1105-2-210). If the Tiffany area were a flood control feature, the post-construction surveys would be OMRR&R and entirely a non-Federal responsibility. Also, see comment 3.c. and later comments on the Tiffany area and on coordination with FWS on ESA at the end of this document. This issue is not resolved.
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Comment: c. Real Estate Plan. The Real Estate Plan (Appendix J) refers to the endangered species Habitat Improvement Plan (HIP) sites as mitigation sites. The LRR and DSEIS, however, show these sites to be for conservation, or enhancement. The real estate plan should be changed to reflect the proper designation of the HIP sites.
RESPONSE: Agreed. The REP was incorrect in referring to the HIP sites as mitigation sites.
REQUIRED ACTION: REP will be corrected with the proper designation of HIP sites.
Compliance Memorandum - 9. As noted in the previous paragraphs, the HIP sites have been dropped from the recommended plan. All mention of the HIP will be removed from the LRR and SEIS, and Appendix J, Real Estate Considerations (REP) before public review.
HQUSACE REVIEW TEAM ANALYSIS: We are not sure that all references to HIP sites were removed from the LRR. For example, page VII-16 of the main report reads, "Habitat improvement and floodplain acquisition features to be included in the San Acacia levee rehabilitation project were formulated to partially compensate for the observed losses of important fish and wildlife habitats." The description of the recommend plan (Summary, page ii; chapter 9, etc.) do not include habitat improvement features or floodplain acquisition features. Either the description of the recommended plan needs to contain these items (and justification for these items must be provided elsewhere in the LRR) or statements that these measures are project features should be deleted from the final report. This issue is not resolved.
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Comment: d. Authority to Perform Habitat Restoration. Page II-12 of
the LRR describes inclusion with the recommended project of a "Habitat Improvement
Plan (HIP) which consists of 10 distinct sites along the Rio Grande study area, in areas
upstream of the Tiffany Management Area where measures would be incorporated to improve
the habitat of the Willow Flycatcher and the Rio Grande silvery minnow." The LRR
proposes the HIP in an attempt to address recommendations made by the USFWS pursuant to
the ESA.
Comment: (1) Project-induced Jeopardy Unclear. Pages I-15 to I-16 of the LRR contain conflicting statements as to whether the proposed project is likely to jeopardize the endangered flycatcher and minnow species. Directly following the statement that "the Draft BO includes a determination that the proposed project is likely to jeopardize the continued existence of both the Rio Grande silvery minnow and the Southwestern Willow Flycatcher," the LRR explains that "[t]his determination was not based on the direct effects of the proposed project." The LRR goes on to say that the measures proposed to improve the habitat of the flycatcher and minnow species are not needed to avoid direct environmental impacts of the project itself, but rather will attempt to alleviate dangerous conditions which currently jeopardize the two species. The LRR should be revised to reconcile this conflict. The report must either state that the Corps agrees to be bound by the USFWS determination that the project will cause jeopardy (permitting habitat restoration), or the report must document the Corps" plans to continue consultation with USFWS in the hopes of obtaining a no-jeopardy finding.
RESPONSE: While the study team disagrees with the USFWS regarding direct project effects to endangered species, the study team does agree with the USFWS that the environmental baseline for both species is already in jeopardy status, and the only reasonable and prudent alternatives to alleviate jeopardy for the project, then, would be features that would improve the environmental baseline. These features include acquiring the Tiffany tract, relocating the San Marcial railroad bridge, implementing the Habitat Improvement Plan, and monitoring these areas. These features will have clear benefits to the two Federally endangered species by providing additional area of functioning floodplain ecosystem which would increase and improve habitat for both species. The study team believes that while these environmental features are not likely to "recover" the species, these features would have a net benefit to the species by improving the species' conditions above the jeopardy baseline. We believe this approach is prudent given the dire status of both species and the responsibilities of all Federal agencies to ensure that Federal actions are not likely to jeopardize the continued existence of a protected species (Section 7(a)2, ESA). Further, based on these features being included in the project, the USFWS has indicated they will finalize the Biological Opinion with a "no jeopardy" determination.
Required Action: As stated in required action to Comment 1.
Compliance Memorandum 10. The study team's response for this item is largely summarized in Compliance Memorandum paragraphs 1 and 2. The team still believes there are no direct environmental impacts due to the recommended plan. Likewise, the team believes the existing environmental base line is jeopardy. But because the recommended plan does not contribute to, nor is the direct cause of this condition, there is no mitigation or restoration element included in the project. Instead, the recommended new railroad bridge and the Tiffany sediment management basin, both of which are considered to be flood control elements of the plan, have ancillary environmental quality benefits. The recommended plan is considered to be entirely flood control, therefore, requires no additional authorization.
HQUSACE REVIEW TEAM ASSESSMENT: The comment questioned authority to implement the HIP. The reporting officers are no longer recommending the HIP, therefore the issue of authority for HIP is resolved. The last part of the comment refers to documentation of consultation with USFWS. Also see comment on Endangered Species at the end of this document. This issue is not resolved.
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Comment: (2) Authority to Improve Habitat in Without Project Condition. If measures proposed to improve the habitat of the flycatcher and minnow species will merely alleviate dangerous conditions not caused by the project, it is not clear to us that the Corps has the authority to fund construction of the HIP, given that it apparently falls outside those measures necessary to avoid environmental damage caused by the project. The ESA requires avoidance of Federal action which will adversely affect an endangered species or its critical habitat. The ESA imposes no obligation on the Corps to avert danger to endangered species which is caused by other forces unrelated to the Corps' action. If it is true that the proposed plan will not jeopardize an endangered species, the LRR should be revised to omit the HIP from the recommended plan or else explain the authority for the Corps to implement the HIP.
RESPONSE: The ESA requires that federal agencies insure that any action carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species. If improving existing conditions is required to insure an action will not jeopardize a listed species, the Corps has the authority to implement those features under Section 2(C) of the ESA and in accordance with ER 1105-2-100, Paragraph 2-18.f.(2).
REQUIRED ACTION: No further action required.
Compliance Memorandum - 11. As noted previously, the HIP has been eliminated from the recommended plan. The LRR/SEIS will be changed to reflect this refinement of the design.
HQUSACE REVIEW TEAM ASSESSMENT: The comment concerned the issue of authority to implement the HIP. The reporting officers are no longer recommending HIP, therefore this issue is resolved.
Comment: 3. Cost Sharing. Even assuming that the Corps" authority pursuant to its obligation to comply with the ESA is broad enough to permit the construction of the HIP, the recommended plan, as indicated in Table 9 on page II-27 of the LRR appears not to differentiate cost sharing by the non-Federal sponsor of the levee/flood control measures from cost sharing for the HIP measures.
RESPONSE: This item was discussed during the 19 March 97 meeting with HQ, as summarized in the 19 May 97 MFR. It was originally thought that conservation features for endangered species would be a 100% Federal cost as per ER 1105-2-100, paragraph 4-37.a. and Section 906(e) of WRDA '86. However, during the 19 March 97 meeting, the District was informed by HQ that due to budgetary constraints, as outlined in PGL #24, the Federal government was not implementing this cost sharing. It was therefore concluded that the conservation features for endangered species would have to be cost shared at the same percentage as the flood control features of the plan (see page 2, paragraph 5.b.(2) of 19 May 97 MFR). This conclusion was reached because it had been decided that conservation for endangered species was a project feature and not a project purpose. Because it is a feature of the flood control plan, it should be cost shared as the flood control features are. Once again, the HIP was formulated to address reasonable and prudent alternatives received from the FWS in their draft biological opinion. The HIP is therefore the result of formal consultation with the Service and is a feature of the recommended plan, not a project purpose or project element. Without the HIP, the plan is not complete, does not meet the environmental objectives, and is not an environmentally sustainable development.
REQUIRED ACTION: See comment, response, and required action for comment 2.a. on mitigation.
Compliance Memorandum - 12. Once again, the HIP has been removed from the plan (please see Compliance Memorandum No. 3).
HQUSACE REVIEW TEAM ASSESSMENT: We disagreed with the study team on cost sharing for conservation, etc., and found no record that supported the position taken in the response (above). However, the HIP is no longer being recommended therefore the cost sharing issue for HIP is no longer relevant. This issue is resolved.
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Comment: a. Structural flood control cost-sharing. While the habitat
measures may be necessary to satisfy the Corps' responsibilities to implement measures
recommended by USFWS pursuant to the ESA, that does not mean that the costs of such
measures should be cost shared in the same manner as structural flood control measures. In
prior instances where a Corps project has included multiple project purposes, the costs of
the entire project traditionally have been allocated to their applicable project purposes
and cost shared accordingly. The LRR should be revised to either justify the use of
structural flood control cost sharing in implementing the HIP, or else it should be
revised to indicate alternate cost-sharing approaches, the final choice from which is
subject to review and approval by HQUSACE and ASA(CW).
RESPONSE: The impacts/benefits of the proposed railroad bridge are being reevaluated in order to determine what percentage of the bridge costs are justified by flood control, and/or restoration benefits. It is highly likely that over 50% of the bridge costs will be justified by flood control benefits. The remaining costs of the bridge will be justified by restoration. That portion of the bridge justified by flood control benefits will be cost shared at the project-authorized rate of 87.5% Federal and 12.5% non-Federal. The portion justified by restoration benefits will be cost shared at the current standard of 65% Federal and 35% non-Federal. These results will be reflected and incorporated into the revised LRR/SEIS.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 13. (please see Compliance Memorandum No. 3) As noted above, the bridge is justified through the Taking Analysis, thus, it will be cost shared at the same rate as the levee element. The Tiffany basin is justified by flood control benefits and it too will be cost shared as per the flood control rate. The exact cost sharing percentage has been recalculated based on the percentage of benefits to Federal property, as discussed in Compliance Memorandum – 17, and summarized in Attachment 2 to this document.
HQUSACE REVIEW TEAM ASSESSMENT: We agree that flood control cost sharing applies to the levee and the San Marcial bridge replacement. We do not agree that the Tiffany area is a flood control feature. See our comment on the Tiffany area at the end of this document. This issue is not resolved.
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Comment: b. Ecosystem or Environmental Restoration. It appears that the recommended HIP and Tiffany Management Area are environmental restoration measures primarily intended to restore ecosystem functions for these species, based on the report statement, page II-9, under "Design Features:" "... the addition of the HIP areas, the acquisition and management of the Tiffany area, and the relocation and raising of the San Marcia railroad bridge would provide badly needed conservation measures for the Southwestern Willow Flycatcher and the Rio Grande Silvery Minnow, as well as allow the introduction of higher peak flows through the study area to more closely mimic the natural flood hydrographs of the past." Ecosystem or environmental restoration is not authorized for this project. The cost sharing for environmental restoration is 65 percent Federal and 35 percent non-Federal, as required by Section 203 of WRDA 1996. The reporting officers need to document justification for determining that the HIP, Tiffany Management area, and the relocation of the San Marcia bridge are flood control elements, mitigation for flood control, or ecosystem or environmental restoration. If any of these elements are environmental restoration features, the district needs to provide a legal opinion as to whether the Corps may implement environmental restoration features for this project without additional authorization from Congress.
RESPONSE: In addition to the reanalysis discussed in the previous response, the District will obtain a legal opinion to support restoration features for this project without additional authorization from the Congress. This opinion will be included with the revised LRR/SEIS.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 14. Compliance Memorandum No. 2, 3 and 4, summarize the results of the recommended actions. There are no mitigation, HIP or restoration elements included with the recommended plan. Likewise, there are no new project purposes and thus, no need for additional authorizations from Congress.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is resolved. However, please see our comment on the Tiffany area at the end of this document.
Comment: c. Cost Sharing of "Monitoring". Even assuming that use of structural flood control cost sharing is appropriate for construction of the habitat restoration measures, we do not understand why it is proposed on page II-28 of the LRR that "monitoring of the habitat manipulation measures proposed under coordination of the Endangered Species Act, would be treated as project costs." We are unaware of why such costs would not qualify as operation and maintenance costs, for which current law requires full payment by the nonfederal sponsor on both structural flood control projects and on projects pursued under various standing authorities for environmental improvements and restorations. The LRR should be revised to treat project monitoring as a non-Federal responsibility or document the justification for treatment of project monitoring as a project cost.
RESPONSE: According to Para. 21.a. of EC 1105-2-210,"Because of the relative newness of restoration science and uncertainty in ecosystem restoration planning, theories, and tools, success can vary due to a variety of technical and site specific factors. Recognizing this uncertainty, it is prudent to allow for contingencies to address restoration problems during, or after, project construction. To accomplish this, a technique called "adaptive management" should be considered for inclusion in restoration projects recognized during planning to have the potential for uncertainly in achieving restoration objectives." Adaptive management is a cornerstone of this EC, as well as EC 1105-2-214, which greatly encourages monitoring as an integral part of a Corps' restoration initiative to determine if outputs are being achieved and to provide feedback when it has been determined that there is high risk and uncertainty associated with the restoration measures being proposed.
Because both the Corps and the U.S. Fish and Wildlife Service (USFWS) recognize the innovativeness of the restoration techniques we're proposing to implement through the HIP and with the Tiffany tract, the USFWS has requested through their biological opinion that at least five years (not necessarily consecutive years) of monitoring be conducted to assure that the design objectives of the habitat restoration measures are met. Therefore, we plan to adopt adaptive management with this project by carefully designing a monitoring program, with the assistant of the USFWS, the Bureau of Reclamation, the local sponsor, and possibly others with the local research and academic community, that will begin during construction and continue for a specified period after the project has been completed. The expectations of the restoration measures, as well as the monitoring program will be discussed, negotiated, and then stated in a Memorandum of Understanding between us, the USFWS, and the sponsor.
Again, in compliance with EC 1105-2-210, the cost and duration of the monitoring program will be included in the estimate of the construction costs of the project, and the SEIS/LRR will describe any adaptive management and monitoring plans deemed to be necessary. The description of the monitoring plan will include the nature of the monitoring to be conducted, as well as specify the period for which it will be conducted. Our monitoring proposal will also consider the local sponsor's ability to fund monitoring and will specify who will actually carry out the monitoring activities. All of this will be clearly specified in the Project Cooperation Agreement. According to EC 1105-2-210, adaptive management and extensive post-construction monitoring is to be cost-shared with the local sponsor to the same extent as the monitoring features.
The O&M manual for the project may also specify longer-term monitoring, depending on the outcome of the above-described MOU, which will be conducted as part of the sponsor's O&M responsibilities, as well as funded by the sponsor. If monitoring during construction indicates that the project needs minor adjustments, construction funds will be used to make such adjustments. If post-construction monitoring indicates that minor adjustments are needed to realize restoration benefits, these corrections can be pursued as part of the local sponsor's O&M program, and revisions made to the O&M manual. If monitoring indicates significant O&M modification is needed, than this may be accomplished if the local sponsor and the Corps agree and funds are available. When monitoring that is carried past the pre-specified period indicates that significant project modifications are required, a study may be conducted under Section 216, River and Harbor and Flood Control Act of 1970 authority to consider the requirements for, and appropriateness of a new Federal investment, and to identify modifications that may be required in the PCA with the original project sponsor. In addition, the Section 1135, WRDA 1986 authority could be used.
It is also possible that resource agencies with interests related to the project might be able to participate in a cooperative monitoring program, and innovative measures for financing monitoring requirements will be explored. We understand that a cooperative agreement with the sponsor and among resource agencies, such as the USFWS Bosque del Apache Wildlife Refuge, academic institutions, such as the University of New Mexico, and non-profit organizations could perhaps not only contribute to sharing monitoring expenses, but could also foster information sharing and improvement of the knowledge base for ecosystem restoration.
REQUIRED ACTION: The cost and duration (not to exceed 5 years following completion of construction) of the monitoring program can be included in the construction cost of the project to comply with EC 1105-2-210, paragraph 21.
Compliance Memorandum - 15. As was summarized in Compliance Memorandum No. 8, it has been estimated that monitoring for the 5-year period after construction will cost $150,000. This figure has been added to the project first cost. Table 9, Project Implementation Costs, within Chapter II, Plan Formulation, of the LRR/SEIS, has been updated to reflect this refinement. This table is attached to this document as Attachment 1.
HQUSACE REVIEW TEAM ASSESSMENT: The agreed upon required action concerning a monitoring program was for environmental restoration features of the project. EC 1105-2-210 provisions for monitoring only apply to environmental features. If the Tiffany area is environmental restoration, monitoring can be cost shared but at 65% Federal, 35% non-Federal. This issue is not resolved. Also see our comment at the end of this document on the Tiffany area.
Comment: 4. LPP. The District’s transmittal letter and page
II-19 of the LRR describe the recommended alternative plan as a plan other than the NED
plan. ER 1105-2-100 para. 5-16.d. states "[t]he locally preferred plan may be
recommended for implementation by the Corps, so long as it is recommended and approved by
ASA(CW) for a waiver of the normal requirement that the federal government pursue the NED
plan in accordance with ER 1105-2-100 para. 5-16.b. However, a smaller scale exception for
navigation projects, as per Planning Guidance Letter (PGL) 97-10, appears to apply in this
case. The district should consider citing PGL 97-10 as the basis for exemption of the
required ASA(CW) waiver, unless the district wishes to pursue the ASA(CW) waiver.
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RESPONSE: Agreed. The report will be changed to cite PGL 97-10 as the basis for exemption of the required ASA(CW) waiver.
REQUIRED ACTION: As stated in the response.
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Compliance Memorandum - 16. The LRR will be revised to cite PGL 97-10 as the
basis for exemption of an ASA(CW) waiver. These revisions will be incorporated into
Chapter II, Plan Formulation, paragraph II-2.C.(b), Level of Protection/Identification of
NED Plan. Likewise references to the NED/Locally Preferred Plan, in the Report Summary in
front of the main document, and in Chapter IX, Recommendations, will be updated before
public review.
HQUSACE REVIEW TEAM ASSESSMENT: The paragraphs in the response above do not correlate with the revised LRR. Chapter II, Formulation, of the draft LRR has been rewritten to provide a good explanation of the differences between the NED plan and the recommended plan. However, the report does not clearly designate the recommended plan as the locally preferred plan (LPP). We request a table comparing the features of the authorized, NED and LPP plans that clearly shows all the elements of each plan and the project purpose(s) served by each element. The LRR fails to cite PGL 97-10 as agreed or any citation for or explanation of policy concerning cost sharing when the NED plan is not the recommended plan. Revise chapters 2 and 9 to clearly identify the recommended plan as the LPP. Revise the report to explain PGL 97-10 as the policy basis for exemption from the requirement for a waiver from ASA(CW). The Executive Summary should clearly describe all three plans (authorized, NED, and LPP (recommended)); provide project costs, average annual costs, and benefits for each; and describe the exemption from the requirement to either recommend the NED plan, or to limit Federal cost sharing to the NED plan if another plan is recommended. Please provide the average or typical levee height for each of the three plans. The heights in table 1 are too difficult to enable ready understanding of the project size. This information is needed to assist HQUSACE in gaining ASA(CW) and OMB approvals. This issue is not resolved.
Comment: 5. Flood Control Cost Sharing
a. Federal Benefits. The LRR states that benefits to Federal property are greater than 50 percent of the total project benefits (page II-29). Provide data to show how this was determined since it is not obvious from numbers in the LRR. The data is needed to support the proposed 50 percent reduction in non-Federal cost sharing which needs to be based on non-Federal benefits in compliance with Section 102 of WRDA 1992.
RESPONSE: Appendix I, Economic Considerations, does not specifically illustrate that 50% of the total project benefits are attributable to Federal properties. However, Table 5b does illustrate average annual damages by categories. The damages to the Low Flow Conveyance Channel (LFCC) are indicated to be equal to $15.9 million in project year 50. This is equivalent to approximately 55% of the total damages, which are estimated to be $29.0 million. The LRR will be revised to include a table of benefits by category, in order to illustrate that benefits to Federal properties, namely the LFCC, are greater than 50% of the total.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 17. Using the updated benefits and costs for the project, a reanalysis was conducted to determine the correct cost sharing to be recommended for this project. A Table summarizing benefits by category was completed and is enclosed with this document as Attachment 2. [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.] It can be seen from the data in this table that 47.3% of the total project benefits are attributable to Federal concerns. Therefore, as per the special legislation contained in WRDA 92 (see Chapter II, Plan Formulation, paragraph II-2.C.(k), Cost Allocations and Cost Apportionments, of the draft LRR), the cost sharing for this project, which was originally 25% non-Federal versus 75% Federal, shall be reduced by 47.3%. Thus, reducing the local 25% share by 47.3% results in a cost-sharing portion of 13.2% for the Sponsor. This cost sharing formula was used in the computation of the Project Implementation Costs in Attachment 1 to this document. [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.] These results will be included in the LRR and Appendix I, Economic Considerations, before the LRR is provided to the public for review.
HQUSACE REVIEW TEAM ASSESSMENT: The table showing 47.3 percent reduction in the non-Federal share is correct based on the other numbers in the report. This table and others may have to be revised in response to comments on other issues such as the Tiffany area and benefits for the railroad bridge replacement, etc., This issue is not resolved.
Comment: b. Table 9. This table in the LRR has errors that should be corrected. The 5 percent cash contribution in the non-Federal column should be $3,342,500 instead of the $3,292,500 that is shown. The Subtotal below this figure is correct, but the Adjusted Project Cost amount in the Non-Federal column should be $8,356,275 instead of the $8,231,275 that is shown. These corrections make the Federal & Non-Federal Project Implementation Cost $66,850,200 instead of the $65,850,200 that is shown.
RESPONSE: Last minute changes to the lands and damages estimate, as contained in Appendix J, Real Estate Considerations (please see page 13 of Appendix J), were being made as the draft report was being compiled. These changes were not included in Table 9 of the main report. These numbers will be updated before public review of the document. Tentatively, Table 9 will be changed as illustrated on the following page.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 18. Many changes have occurred in the project cost estimate which affect Table 9. These have all been incorporated and the results are illustrated in Attachment 1 to this document. [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.], and will be included in Chapter II, Plan Formulation, paragraph II-2.C.(a) before public review.
HQUSACE REVIEW TEAM ASSESSMENT: The concern on cost sharing (5 percent cash, Federal and non-Federal share) is resolved by the response and revised table (now table 10 in the report). This issue is resolved.
Comment: c. Planning, Engineering and Design (PED) Costs. There is no indication that all of the PED costs for this project have been included in the project cost for cost sharing as required by ER 1165-2-131, Section 4.e., also in Appendix B of this ER, and as stated in Article I B. of the March 1994 Model Project Cooperation Agreement for Single-Purpose Structural Flood Control Projects and Separable Elements. This cost should also include all Advance Engineering and Design (AE&D) costs incurred since authorization, and all Continuing Planning and Engineering (CP&E) costs incurred after 1 October 1985. The amount of these costs should be provided, and Table 9 of the LRR should be revised accordingly.
RESPONSE: Agreed. Previously spent PED costs were inadvertently left out of the project cost estimate and Table 9. It is currently estimated that $3.9 million of PED monies have been spent to date. These monies are all AE&D costs. There have been no CP&E costs incurred after 1 October 1985, as this project was authorized in 1941. Table 9 also mistakenly listed separate line items for PED and Plans & Specs (P&S is part of PED). Monies for P&S should have been included in the PED line item. Therefore, it is estimated approximately $1 million will be spent before PED is completed, approximately $100,000 to complete the LRR/SEIS/LCA and $900,000 to complete P&S. Thus PED costs of $4.9 million will be included in Table 9.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 19. PED costs have been adjusted in Table 9 (see Attachment No. 1 [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.]) as per the discussions in the Response.
HQUSACE REVIEW TEAM ASSESSMENT: In the revised LRR the relevant figures are in table 10. This issue is resolved.
Comment: 6. Economics.
a. Utility Removals at Owners Expense. The fourth paragraph on page I-8 states that the costs of utility removals ["removals" is used in lieu of "relocations" to distinguish from other relocation cost concepts] will not be a part of the project cost. However, the LRR has properly included these costs in the development of the NED cost. The district should revise this statement to indicate that although these removals and their subsequent reinstallation's are a part of the NED cost, the cost of this work is to be borne by the utility owners, and is not to be included in the Total Project Costs for cost-sharing and crediting purposes. Tables and cost accounting should reflect this throughout the LRR.
RESPONSE: Agreed. The LRR will be revised to reflect that the utility removals are part of the total project cost, however, their costs will be borne by the utility owners. All references and tables will be revised accordingly.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 20. A compensability interest determination for the LERRD’s has not yet been prepared by the study team. This task is usually conducted during Planning, Engineering and Design (PED). In an effort to advise the Sponsor of the worst case scenario with regard to his responsibilities under the LERRD's, these costs were assumed to be paid for by the Sponsor. If this should change during PED, then the cost of the LERRD's will then be adjusted accordingly. Still, the LRR will be revised to explain whether the Sponsor, or other agency, issued a permit to the utility owners, whether its terms authorize the Sponsor to require the utility owner to remove it under project circumstances at owner expense, and, if so, that the Sponsor will require the owner to remove it in a timely fashion. For those utilities, the report will be adjusted to reflect that the work is a removal and not a relocation. For those not permitted but located pursuant to ownership of real property interest, the team will research and confirm the owners have a compensable interest before public review of the LRR. The final Attorney's opinion will then follow during PED. Appendix I, Economic Considerations, will be adjusted to indicate the results of these analyses. Likewise, Appendix J, Real Estate Considerations, will be revised to include the same results.
HQUSACE REVIEW TEAM ASSESSMENT: The economics appendix is now appendix H and the real estate appendix is appendix I. We found no discussion of the removals issue in the report. The required action was that the cost of utility removals would be shown for purposes of the benefit-cost analysis; however, these would not be shown in the project implementation costs. The compliance discussion explains that attendant removal costs remain as LERRD costs in the LRR. In addition, the Real Estate Plan (REP) incorrectly labels this work as "relocations." The discussion of removals should be consistent in the report. This issue is not resolved.
Comment: b. Current Interest Rate. The annualized benefits and costs, and interest during construction (IDC), were computed using 7-3/8 percent. The rate for fiscal year 1998 is 7-1/8 percent, to comply with Economic Guidance Memorandum 98-1. The LRR analysis does not need to be corrected, but the total project costs for, and the annualized benefits and costs for the NED and recommended plans using the current interest rate, and the resulting benefit cost ratios, should be presented in the LRR summary.
RESPONSE: Agreed. All economic considerations were completed in fiscal year 1997, and have not been updated to reflect the FY98 interest rate. This will be done before the report is released for public review.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 21. As per the original comment, the NED analysis in the draft report has not been recomputed based on the current interest rate (note that the interest rate will likely change again before the report goes out for public review). However, for the purposes of this document, the benefits and costs for the selected plan have been updated to reflect the interest rate for Fiscal Year 1998, which is 7-1/8%. The results of this update are summarized in Attachment 1 [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.] to this document. The most up to date interest rate will be used to update all computations and will be reflected in Appendix I, Economic Considerations, before public review.
HQUSACE REVIEW TEAM ASSESSMENT: The proposed actions in the paragraph immediately
above are okay except that the changes need to be made for the final report. We
note that the current FY99 interest rate is 6-7/8 percent. It may be helpful to summarize
in the economic appendix what the results are for the NED and recommended plans at various
interest rates, including rates that haven’t been published yet such as 6-5/8 and
6-3/8, and older rates such as 7-1/8 and 7-3/8. That way, no recomputations will be needed
in the foreseeable future. Such a summary is not required, it is just something that many
districts do to avoid continual problems with updating. This issue is resolved. ===================================================================
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Comment: 7. References to Attached PCA. The LRR states (page 2 of the
summary and page IX-3) that the PCA is attached to the report. These references should be
deleted from the report. The final LRR must be approved before the PCA can be submitted
and approval of the LRR will not constitute approval of the PCA.
RESPONSE: Agreed. The suggested changes will be made to the document.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 22. Page 2 of the report summary and page IX-3 of the LRR have been revised indicating the PCA is not attached to the document.
HQUSACE REVIEW TEAM ANALYSIS: The PCA is not included in the report. This issue is resolved.
Comment: 8. Financial Analysis. Page II-29 of the LRR indicates "favorable support" for the project, including signature by the Sponsor of Letter of Intent dated 23 July 1992 indicating its willingness to cost share in the project. This letter, along with a copy of a project financial plan as well as the District's financial assessment, should be added to the LRR as required by ER 1105-2-100. para. 6-183, para. 6-185 and para. 6-186.
RESPONSE: Agreed. The listed documents will be included in the updated LRR.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 23. The team will add the Sponsor's letter of support, financial plan and financial assessment to the LRR before public review in a separate appendix to the main report entitled; Appendix K, Local Sponsorship. This appendix will be referenced in the main report in Chapter II, Plan Formulation, paragraph II-2.C.(k), Cost Allocations and Cost Apportionments.
HQUSACE REVIEW TEAM ASSESSMENT: Paragraph II-2.C. of the LRR is titled, Alternatives Eliminated from Consideration. There is no appendix K or any appendix titled, "Local Sponsorship." The responsibility for financial analysis has been delegated to the field and is not required in the report (Memorandum, CECW-PE, subject: Update of Financial Analyses Guidance, 19 March 1999). However, a letter of support from the Sponsor is required in the report. This issue is not resolved.
Comment: 9. Local Cooperation. The LRR should be revised to include a complete list of local cooperation requirements, as required by ER 1105-2-100 para. 2-12.h.(1)(h): ("The report shall also include a discussion of LCA responsibilities"). See also EC 1165-2-204, dated 31 July 97, paragraph 7(c)(8): ("The decision document and decision document supplements, together, must identify the authority under which the project will be constructed, and: . . . (8) identify all project cooperation requirements for construction and OMRR&R."). This list should account for both the project purpose of structural flood control and habitat improvement, as appropriate [see determinations required under para.2.b.(4)].
RESPONSE: Agreed. The updated LRR will include a list local cooperation requirements and responsibilities.
REQUIRED ACTION: As stated in the response.Compliance Memorandum - 24. The LRR will be revised before public review to include the complete list of local cooperation requirements, as specified in ER 1105-2-100, for construction, in Chapter II, paragraph II-2.C.(i), Local Sponsorship, and a list of operation and maintenance requirements in Chapter II, paragraph II-2.C.(h), Operation & Maintenance Requirements. Because the HIP sites and all restoration elements have been removed from the recommended plan, there will be no operation and maintenance requirements of habitat improvement/conservation of endangered species items.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is not resolved. See comment at the end of this document.
Comment: 10. Post-Authorization Approval Authority. The LRR concludes that the recommended changes to the authorized project are within the approval authority of the Division Commander. ER 1105-2-100, paragraph 2-17.a.(1), provides that for projects authorized prior to WRDA 1986 the increase in total baseline project cost estimate must be no greater than the increase in price level changes and the cost of modifications required by subsequent legislation. The LRR states that the updated (October 1997) cost of the authorized project is $61 million. The cost of the recommended project is $66.8 million. The reporting officers need to explain and document in the LRR compliance with the requirement of 2-17.a. of the cited ER. In any case, since the LRR will be supporting an eventual PCA, EC 1165-2-203 requires resubmission of the LRR to HQUSACE and Washington level clearance prior to transmittal of the PCA.
RESPONSE: Agreed. The report was incorrect in stating the recommended plan complied with 2-17.a. of ER 1105-2-100. It does not. The report will be revised to state that the recommended project does not meet the criteria listed in 2-17.a., but does not require reauthorization by Congress pursuant to one or more of the criteria in 2-17.c., therefore, shall be approved by the Director of Civil Works, HQUSACE, or specifically delegated by the Director to the Division Commander for approval.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 25. As a result of the reevaluation activities which have taken place in order to address the comments contained in the Policy Guidance Memorandum, numerous changes have occurred to the estimated project cost estimate. These were largely due to elimination of the HIP sites, elimination of all restoration/conservation measures, redesign of the railroad bridge, and cost savings measures incorporated into the levee design. All of these have served to lower the total project cost estimate. Whereas the draft LRR estimated the total project cost at $66.8 million, the revised LRR will reflect a total cost of approximately $48.3 million. Attachment 1 [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.] summarizes the updated costs of the selected plan. Therefore, because this project cost is less than the updated cost of the authorized plan, it is concluded the requirement of ER 1105-2-100, Chapter 2, Section III, paragraph 2-17.a.(1) is complied with. However, the requirement of paragraph 2-17.a.(2) is not met because the length of the levee has been decreased by an estimated 21%. Therefore, approval authority for this project lies with HQUSACE. The LRR will be revised to reflect the new cost and the required approval authority, especially in Chapter I, Introduction, page I-3 and I-4, and in Chapter IX, Recommendations, page IX-1 and IX-2.
HQUSACE REVIEW TEAM ANALYSIS: Pages I-3 and I-4, have been revised to document that the post authorization changes can be approved by the Corps and do not require additional Congressional authorization. We agree with this. The executive summary (page ii) and pages IX-1 and IX-2 state that the division commander has the authority to approve the recommended changes. Therefore, the review team questions why this report has been submitted for HQUSACE approval. We are aware that there are other reasons for seeking higher level approval. Nevertheless, it is confusing to have a report state that the division commander is the approving authority when the report has been submitted for approval at a higher level. Either the division commander should approve the report or the report should be corrected so that the public and Corps decisionmakers know what approval is being sought. This issue is not resolved. Further, delete the recommendation about plans and specifications and PCA submittal in the executive summary because they are inappropriate. Approval of the LRR will not constitute approval or instructions relating to these items.
Field Input and Discussion:
This issue is best resolved at this time before completion of the report. The recommended project includes features (RR Bridge) which require specific actions and approvals by HQUSACE. Accordingly, the entire project (GRR) must be approved at the HQUSACE and cannot be delegated to the division commander. The district will revise the final report to clearly and consistently state throughout that the GRR will be authorized at HQUSACE level.
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Comment: 11. Engineering. The independent technical review
certification should be signed by the Chief, Real Estate Division, in accordance with
Appendix A of EC 1165-2-203, before the LRR is finalized.
RESPONSE: Agreed. Real Estate Chief will sign certification of technical review.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 26. Please see Attachment 3 for signed certification of technical review. [CECW-AR-M Note: This attachment was pulled from this document and is available in our files.]
HQUSACE REVIEW TEAM ANALYSIS: The 1997 certification was resubmitted with the signature of the Chief for Real Estate dated 1998. When the revised May 1999 report was submitted, there was no certification of legal or technical review. However, the LRR states that project design, the MCACES estimate, and other technical work was revised. ITR certification for changed or new technical work should have been provided when the report was submitted for review. The district submitted a certificate dated July 1999 documenting the technical review that was performed. This issue is resolved.
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Comment: 12. Real Estate Plan (REP). The "Real Estate Considerations" Appendix to the LRR should be revised, or additional explanation provided, as follows:
Comment: a. Page 2 recites, in part, that the District "is coordinating this Project with the BOR and will obtain proper authorization by interagency agreement, memorandum of understanding, or permit." As required by para.12-8.b.(2)(a) of ER 405-1-12 (draft Ch.12), the REP should be revised to explain the views of the local BOR representative regarding providing necessary interests or cooperation for the project. Further, since interagency agreements, MOAs, or permits are in the nature of non-standard estates, CERE-A must approve the selected document prior to its execution and application.
RESPONSE: Agreed. The study team is currently coordinating with BOR to outline the steps necessary to achieve the proper cooperation agreements for all concerns.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 27. Page 2 of Appendix J, Real Estate Considerations, will be revised to reflect the coordination with BoR before public review.
HQUSACE REVIEW TEAM ASSSESSMENT: The agreed upon changes to the REP were not made. This issue is not resolved.
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Comment: b. Statements Found on Pages 2 and 3 indicate that the Middle Rio Grande Conservancy District (MRGCD) currently owns easements on some of the parcels required for the project. The REP should be revised to explain the nature, extent and duration of those easements and, after deed review, whether they are sufficient in scope and available for use for this project.
RESPONSE: Agreed. REP will be updated to include additional information regarding MRGCD current holdings.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 28. Pages 2 and 3 of Appendix J, Real Estate Considerations, will be updated to include the additional information before public review.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is resolved.
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Comment: c. In several locations, the REP indicates that some project lands have "already been secured by BOR or MRGCD" (see pages 3 and 5). Since WRDA 86 principles require that the Sponsor provides the LERRD required for the project, and since the REP indicates that MRGCD is the proposed project sponsor, current ownership by BOR does not seem relevant. The REP should be revised to explain how the MRGCD will be acquiring necessary interests from BOR.
RESPONSE: Currently, MRGCD has real estate interests from San Acacia to the northern boundary of the Bosque del Apache Wildlife Refuge (see Figure 1 behind main LRR report). From the Refuge downstream to San Marcial is not under the MRGCD's control. They must therefore secure interests in these lands from BOR and others as noted in the REP. The REP will be revised to clarify these concerns.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 29. Pages 3 and 5 of Appendix J, Real Estate Considerations, will be changed to clarify this real estate question before public review.
HQUSACE REVIEW TEAM ASSESSMENT: The agreed upon changes to the REP were not made. This issue is not resolved.
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Comment: d. The first two full sentences found at the beginning of page 3 should be deleted or revised to read as follows: "The MRGCD will provide the Government with an
authorization for entry for all lands, easements, and rights-of-way that the Government requires the MRGCD to provide for the project."
RESPONSE: Agreed.
REQUIRED ACTION: As stated in the comment.
Compliance Memorandum - 30. The first 2 sentences on page 3 of Appendix J, Real Estate Considerations, have been updated to include the suggested language.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is resolved.
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Comment: e. The "Mitigation" section found on page 5 does not indicate what estate will be acquired from the Town of Socorro. The REP must be revised to supply this information. Further, this section states that the "170.65 acres under public ownership will be permitted from the U.S. Fish and Wildlife Service." Since page 3 of the REP indicates the Sponsor has previously acquired some type of easement from USFWS, explanation should be provided why further easement acquisition is not planned. If a permit remains the selected instrument, the REP should be revised to explain that the Sponsor will be the named permitted. Finally, the REP should be revised to add certain information and the permit form must be approved in advance by CERE-A all as stated in the above subcomment (1) regarding the BOR transaction.
RESPONSE: Agreed. Suggested revisions will be completed to clarify these points.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 31. The HIP has been dropped from the plan. Therefore the REP in Appendix J, of the LRR report will be revised to reflect the elimination of the 10 restoration sites.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is resolved.
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Comment: f. Relocations (pages 6 and 7 of REP and page I-8 of Main
Report):
(1) Railroad Relocations. The REP indicates that three railroad relocations will be necessary with the third apparently being the San Marcial bridge and approach work described elsewhere in the report. Regarding this bridge and approach work, if the required alterations are determined to be the responsibility of the Government rather than the Sponsor, such work should not be categorized as a "relocation" since all "relocations" must be accomplished by the Sponsor as a LERRD item (see Articles I.G and II.D.2 of the Model PCA for Structural Flood Control). Therefore, the categorization of this work in the REP and other report sections should be changed. Of larger concern is whether this proposed work comes within the purview of PGL No.45 since that policy can be interpreted as applying only when "necessary for flood control purposes" (see Memo entitled "Rescission of Policy Guidance Letter No.2", dated 4 November 1993; and see 31 USC 701p). We are concerned that the reason for this work may be for environmental purposes, not flood control, and also may not be included as a project feature in the project's authorizing legislation or reports cited therein. Accordingly, the District should provide its rationale as to why the work on the San Marcial Bridge and approach can and should be categorized as construction, not LERRD. Finally, if the Chief's discretionary authority is believed to be sufficient to permit implementation of the San Marcial railroad bridge work, the District should explain the steps necessary to ensure that written findings are prepared for the Chief's signature which document that the bridge work is necessary for flood control purposes, as required by 33 U.S.C. 701p.
RESPONSE: As noted earlier, the bridge is being reanalyzed in order to determine what percentage of its costs are justified by flood control benefits and restoration benefits. Based on previous discussions with HQ it is understood that more than 50% of the costs of the bridge must be justified by flood control benefits in order to ensure it is a necessary flood control feature. The team is confident this criteria will be met. Thus, the LRR/SEIS will be revised to reflect these results and justify its requirement to be a necessary part of the flood control plan. Its costs will then be reflected accordingly in Table 9 of the report before public review.
REQUIRED ACTION: The district must explain the steps necessary to ensure that written findings are prepared for the Chief's signature which document that the bridge work is necessary for flood control purposes, as required by 33 U.S.C. 701p. Provide a schedule for the identified steps with (not in) the revised report. The Santa Paula Creek, California, project required preparation of a similar findings document if an example is needed.
Compliance Memorandum - 32. As noted in Compliance Memorandum - 3, the bridge is justified by the conducted Taking Analysis. The LRR, SEIS, and Appendix J, Real Estate Considerations, have been updated to reflect this refinement in the recommended plan. A list of steps outlining the procedures necessary to obtain the Chief's signature will be provided with the revised report before public review.
HQUSACE REVIEW TEAM ASSESSMENT: The original comment required that 1) the REP and other report sections should be revised to not include the proposed railroad bridge as a "relocation" if justification for the proposed work as a Section 701p modification was provided; 2) the district should explain why the proposed railroad bridge work should be viewed as a construction item to be performed by the Government rather than a relocation to be performed by the sponsor; and 3) the district should explain the steps necessary to ensure that the necessary Section 701p findings will be accomplished. We also note that the "REQUIRED ACTION" component of the assessment required only that the third comment be formally documented. Because we did not find anything in the review package addressing the third part of the original comment, we believe that it is still unresolved. In response to this comment, the district should clearly state how the district will ensure that written findings are prepared for the Chief of Engineer’s signature which document that the San Marcial railroad bridge work is necessary for flood control purposes, permitting using Federal funds pursuant to 33 U.S.C. 701p. If guidance is needed, seek assistance from HQUSACE, CECC-J, Mr. Murphy.
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Comment: (2) Utility Relocations. The main report lists four utilities that cross the levee alignment and that "[u]nder existing licensing agreements ... would be relocated at the owners" expense, and consequently are not included as part of the project cost." However, the REP indicates that five utility relocations will be necessary, that performance is a Sponsor LERRD responsibility, and that Attorney’s Opinions of Compensability will be prepared during PED. The District should explain whether the utilities referenced in both report locations are the same and revise the report to achieve consistency. Further, if some or all of the five utilities are located pursuant to a permit only, the report should be revised to explain whether the Sponsor, or other agency, issued the permit, whether its terms authorize the Sponsor to require the utility owner to remove it under project circumstances at owner expense and, if so, that the Sponsor will require the owner to remove it in a timely fashion. For those utilities that can be so removed at owner expense, the report should be revised to reflect that the work is a "removal" not a "relocation." For those utilities that are not permitted but are located pursuant to ownership of a real property interest, the District should now research and confirm that the owners each have a compensable real property interest with final Attorney's Opinions to be prepared during PED.
RESPONSE: Agreed. All suggested clarifications will be incorporated into the revised LRR.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 33. These clarifications will be made to Chapter II, Plan Formulation, paragraph II-2.C.(d), Real Estate Requirements and Relocations, before public review.
HQUSACE REVIEW TEAM ASSESSMENT: The agreed upon changes to the REP were not made. This issue is not resolved.
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Comment: g. Assessment of Sponsor Capability (pages 8-12 of REP):
(1) Item d indicates that the Sponsor may not have authority to acquire and hold fee in the Tiffany area that apparently lies completely outside of its political boundary. Accordingly, the District should request a legal opinion from the Sponsor as to its legal capability to acquire and hold fee in the Tiffany area and provide a copy as part of its responses to these comments. If the Sponsor cannot acquire and hold fee title, the REP must be revised to reflect the changed real estate requirements.
RESPONSE: The study team is coordinating with the Sponsor to obtain the suggested legal capability and will include it with the revised report, and this document upon finalization.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 34. The Sponsor's letter will be attached to Appendix J, Real Estate Considerations, of the LRR before public review.
HQUSACE REVIEW TEAM ASSESSMENT: The agreed upon documentation was not provided. This issue is not resolved.
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Comment: (2) Item b found on page 11 reflects that the Sponsor has not approved project real estate schedules. So that reasonable schedules can be determined, it is essential that the Sponsor approves the real estate milestone schedule particularly since this Sponsor has reportedly not met schedules for prior project efforts (as is clearly indicated throughout this Assessment). The District must obtain this approval or provide persuasive reasons why it is not possible. Finally, since no assurance can be provided at this time that the Government will be able to later acquire on the Sponsor's behalf, schedules should be prepared with the assumption that the Sponsor will be performing acquisition.
RESPONSE: Agreed. Real estate schedules will be completed and included in the updated report.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 35. A schedule has been compiled and is being coordinated with the Sponsor. It will be included in Appendix J, Real Estate Considerations, before public review.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is resolved.
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Comment: h. Acquisition Schedule: The schedule found on page 15 indicates that preparation of legal descriptions, and instructions to acquire LERRD will be accomplished prior to PCA execution. Such work should be scheduled to begin after PCA execution with other entries adjusted accordingly. Also, since "n/a" is not an appropriate entry for "Review/Approve or Deny credit requests", appropriate dates should be inserted. Finally, consistent with comment (7)(b) above, scheduled dates for Sponsor participation must be entered.
RESPONSE: Agreed. Changes will be made to revised LRR.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 36. The suggested changes have been incorporated on page 15 of Appendix J, Real Estate Considerations.
HQUSACE REVIEW TEAM ASSESSMENT: This issue is resolved.
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Comment: i. Taking Analysis: For several reasons, the attorney's opinion entitled "Taking Implication Assessment" should be deleted from the REP. First, as a matter of general policy, attorney's opinions should not be incorporated into planning documents. Second, notwithstanding that facts may be considered similar by report drafters, the attached legal opinion expressly addresses facts and conclusions for a "Corrales Unit" not this project reach. In addition, the discussion of increased flood level potential found on pages 16 and 17 of the REP should be deleted and be replaced with a concise description of anticipated induced flooding levels in this reach together with a reasoned conclusion as to whether acquisition of additional real property interests is required or recommended due to application of just compensation principles or other expressed policy reasons.
RESPONSE: Agreed. TIA will be removed from the updated LRR.
REQUIRED ACTION: As stated in the response.
Compliance Memorandum - 37. The TIA for the Corrales project has been eliminated from Appendix J, Real Estate Considerations. In its place, the Taking Analysis for the railroad bridge will be included (see Attachment 4 to this document [CECW-AR-M Note: Attachment was pulled from this document and is available in our files.]).
HQUSACE REVIEW TEAM ASSESSMENT: This issue is not resolved. The attorney’s opinion should not be part of any document circulated to the public.
Comment: j. The District should revise all LRR sections to be consistent with required revisions to the REP.
RESPONSE: Agreed.
REQUIRED ACTION: As stated in the comment.
Compliance Memorandum - 38. All of the above comments and responses will be incorporated within the LRR, SEIS and their appendices before the report is released for public review.
HQUSACE REVIEW TEAM ASSESSMENT: Due to the lack of resolution of numerous comments, as noted above, we have not evaluated whether this comment is resolved.
NEW ISSUES FROM REVIEW OF THE MAY 1999 LRR:
1. Endangered Species. The draft LRR contains an assessment of the anticipated impacts of the newly formulated project on species of concern, including the Federally-listed endangered southwestern willow flycatcher and the endangered Rio Grande silvery minnow. The district should ensure that a full discussion of the U.S. Fish and Wildlife Service’s comments and concurrence or non-concurrence of the district’s findings on these species is included in the Final LRR. The district should be reminded that all Endangered Species Act consultation is to be completed prior to signing of the Project Cooperation Agreement (PCA).
2. Real Estate. The second paragraph of the REP states, in part, that "[t]he borrow and disposal sites will be part of the contract and considered as project costs." If a "site" is required, the requirement should be part of LERRD; provision of materials can be a contractor requirement. The district should review paragraph 12-9.d. of ER 405-1-12 and provide additional explanation on how borrow materials will be available to the project together with appropriate performance and cost sharing conclusions.
3. Tiffany Sediment Management Area. The previous version of the report presented the Tiffany area as a habitat area with environmental benefits (unquantified) and sediment management benefits (based on reduction in sediment removal costs), but cost-shared as flood control. Review team comments (particularly 3.b.) involved appropriate cost-sharing (environmental restoration not flood control) and benefits (habitat output) for this element as well as the 10 proposed HIP areas. The compliance memorandum states that the Tiffany area is a flood control element (compliance memorandum – 10) justified by flood control benefits (compliance memorandum – 13). We have difficulty accepting this feature as a flood control element and we disagree that sediment removal cost reduction is a "flood control benefit." "Sediment benefits" as cost savings are a benefit category, but not necessarily "flood control benefits." The sediment benefits are acceptable "incidental" or secondary benefits for a project feature or element that has a primary purpose of flood control, environmental restoration, navigation, water supply, etc. Project purposes are defined in ER 1105-2-100, chapter 4. The purpose establishes the cost sharing. The LRR presents the Tiffany area as a "sediment management feature" (executive summary, page ii; page II-2) and "sediment detention basin" (page II-22). Concerning its flood control purpose or effects, the LRR says it has "minor … effects on flood damages" (page V-32), is primarily to be operated to change current conditions to a more environmentally acceptable one" (page V-33), and "will have minimal effects on … ‘flood characteristics’(page V-4). These LRR statements do not support the Tiffany area as having a flood control purpose. Sediment management, the primary benefit of Tiffany, is not a project purpose and does not define the basis of cost sharing. Revise the report to show environmental restoration cost sharing for this feature. As we have previously discussed with the district, if the LRR demonstrates that the feature is for benefit of endangered species then we do not need additional authorization from Congress to implement it as ecosystem restoration. If additional authorization were needed, the already authorized flood control cost sharing would not change.
Field Input and Discussion: A means of managing the sediment within flood flow conveyance infrastructure is a part of a complete alternative. In the GRR, the district has included the Tiffany area as a sediment basin in order to reduce the costs associated (O&M) with sediment removal/management throughout the entire project reach. The district has not claimed any direct environmental benefit from the Tiffany area as its primary purpose for the flood damage reduction project is to collect sediment. The district should include additional information in the final report to better describe the operation of the Tiffany area as a sediment basin/collection area for the flood damage reduction project.
4. Formulation. The main report and the REP indicate that "the San Marcial crossing" railroad embankment will be raised either 2 inches or 0.2 feet. Please provide additional explanation and description of the work that is to be done at such precision.
5. Operation, Maintenance, Repair, Replacment and Rehabilitation (OMRR&R). Even though OMRR&R activity and costs will be less than in the existing condition (page V-41), the final report must provide adequate description to understand the provisions or costs for development of the project's OMRR&R requirements. In addition, the report must describe an OMRR&R plan as required by paragraph 10e, and Appendix A, paragraph 12, ER 1110-2-1150. The OMRR&R requirements for the project should be identified, and the costs estimated, so that the non-Federal sponsor is aware of its responsibilities that will be included in the O&M manual prepared in accordance with ER 1110-2-401. These requirements also include a surveillance program in accordance with ER 1110-2-401 and an OMRR&R section in the hydraulic design portion of the report in accordance with ER 1110-2-1405. The report must specifically state who will perform OMRR&R. Federal O&M costs for periodic inspection of non-Federal O&M must be described and estimated. If Federal O&M costs are greater than $1,000 per year, the costs must be included in average annual project costs and in the BCR analysis.
6. Local cooperation. Page IX-2 of the report provide an incomplete list of local cooperation requirements for the project. A complete list is required by Section 905 of the Water Resources Development Act of 1986 ("The feasibility report shall also include . . . a description of the Federal and non-Federal participation in such plan[.]") and ER 1105-2-100 para. 2-12.h.(1).(h). ("The report shall also include a discussion of LCA responsibilities."). See also EC 1165-2-204, dated 31 July 97, paragraph 7(c)(8) ("The decision document and decision document supplements, together, must identify the authority under which the project will be constructed, and: . . . (8) identify all project cooperation requirements for construction and OMRR&R."). The District, in consultation with its office of counsel, should consider revising the list as follows, subject to any changes recommended by the District Counsel as needed to reflect the project’s special needs:
a. Provide a minimum of 25 percent, but not to exceed 50 percent of total project costs allocated to structural flood control, less the percentage of flood control benefits attributable to Federal properties (resulting in a currently estimated non-federal cost share of approximately 13.2 percent) as further specified below:
(1) Enter into an agreement which provides, prior to execution of the project cooperation agreement, 25 percent of design costs;
(2) Provide, during construction, any additional funds needed to cover the non-federal share of design costs;
(3) Provide, during construction, a cash contribution equal to 5 percent of total project costs;
(4) Provide all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas, and perform or assure the performance of all relocations determined by the Government to be necessary for the construction, operation, and maintenance of the project;
(5) Provide or pay to the Government the cost of providing all retaining dikes, wasteweirs, bulkheads, and embankments, including all monitoring features and stilling basins, that may be required at any dredged or excavated material disposal areas required for the construction, operation, and maintenance of the project; and
(6) Provide, during construction, any additional costs as necessary to make its total contribution equal to 25 percent of total project costs, less the percentage of flood control benefits attributable to Federal properties (resulting in a currently estimated non-federal cost share of approximately 13.2 percent).
b. Give the Government a right to enter, at reasonable times and in a reasonable manner, upon land which the local sponsor owns or controls for access to the project for the purpose of inspection, and, if necessary, for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the project.
c. Assume responsibility for operating, maintaining, replacing, repairing, and rehabilitating (OMRR&R) the project or completed functional portions of the project, including mitigation features without cost to the Government, in a manner compatible with the project’s authorized purpose and in accordance with applicable Federal and State laws and specific directions prescribed by the Government in the OMRR&R manual and any subsequent amendments thereto.
d. Comply with Section 221 of Public Law 91-611, Flood Control Act of 1970, as amended, and Section 103 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, which provides that the Secretary of the Army shall not commence the construction of any water resources project or separable element thereof, until the non-Federal sponsor has entered into a written agreement to furnish its required cooperation for the project or separable element.
e. Hold and save the Government free from all damages arising for the construction, operation, maintenance, repair, replacement, and rehabilitation of the project and any project-
related betterments, except for damages due to the fault or negligence of the Government or the Government's contractors.
f. Keep and maintain books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to the project to the extent and in such detail as will properly reflect total project costs.
g. Perform, or cause to be performed, any investigations for hazardous substances that are determined necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC 9601-9675, that may exist in, on, or under lands, easements or rights-of-way necessary for the construction, operation, and maintenance of the project; except that the non-Federal sponsor shall not perform such investigations on lands, easements, or rights-of-way that the Government determines to be subject to the navigation servitude without prior specific written direction by the Government.
h. Assume complete financial responsibility for all necessary cleanup and response costs of any CERCLA regulated materials located in, on, or under lands, easements, or rights-of-way that the Government determines necessary for the construction, operation, or maintenance of the project.
i. Agree that, as between the Federal Government and the non-Federal sponsor, the non-Federal sponsor shall be considered the operator of the project for the purpose of CERCLA liability, and, to the maximum extent practicable, operate, maintain, repair, replace, and rehabilitate the project in a manner that will not cause liability to arise under CERCLA.
j. Prescribe and enforce regulations to prevent obstruction of or encroachment on the Project that would reduce the level of protection it affords or that would hinder operation or maintenance of the Project.
k. Comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public law 91-646, as amended by title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 CFR part 24, in acquiring lands, easements, and rights-of-way, and performing relocations for construction, operation, and maintenance of the project, and inform all affected persons of applicable benefits, policies, and procedures in connection with said act.
l. Comply with all applicable Federal and State laws and regulations, including Section 601 of the Civil Rights Act of 1964, Public Law 88-352, and Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army," and Section 402 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 701b-12), requiring non-Federal preparation and implementation of flood plain management plans.
m. Provide the non-Federal portion of total cultural resource preservation mitigation and data recovery costs attributable to structural flood control that are in excess of one percent of the total amount authorized to be appropriated for structural flood control.
n. Participate in and comply with applicable Federal floodplain management and flood insurance programs.
o. Do not use Federal funds to meet the non-Federal sponsor’s share of total project costs unless the Federal granting agency verifies in writing that the expenditure of such funds is authorized.
p. Inform affected interests, at least annually, regarding the limitations of the projection afforded by the project.
QUESTIONS. Questions about the above assessment may be directed to Jo Ann Duman, 703-428-6483.
/s/
JO ANN M. DUMAN