CESPK

1. BACKGROUND. The city of Woodland is an agricultural and industrial center west of Sacramento, California. The city has experienced a growth rate exceeding 2 percent per year since 1980 or 10,000 people per decade. The 1980 population of 30,235 and the January 1, 2001 population of the city of Woodland were 50,614 persons. There are approximately 3,800 residential and 500 commercial or industrial structures in the 100-year flood plain. The district (SPK) is proposing to provide approximately a 200-year level of protection to the city of Woodland, California through construction of a levee system. The tentatively selected plan is the NED plan: the 70,000 cfs Overflow Barrier Plan. Flood proofing and a flood warning system are also part of the NED plan. The cost of the project is currently estimated at $39 million and the benefit-to-cost ratio is 4.0. About 95% of the without project damages are to existing structures and contents. Residual damages in the with project condition only amount to 3% of the without project damages.

2. PROJECT DESCRIPTIONS AND PROJECT PERFORMANCE PROBABILITY.

Comment: Describe project performance as probability of overtopping and not the level of protection. ER 1105-2-100 page E-87 paragraph E-18 c. (1) provides the following guidance. “Projects are analyzed and described in terms of their expected performance, not in terms of levels of protection. Contingencies are acknowledged and residual risk is not routinely reduced by overbuilding or by inclusions of freeboard. A levee, for instance, is described as having a probability of overtopping of x percent in any given year, without implication for level of protection. If there are particular floods of reference or interest, the levee is described as having a probability y of containing the z percent flood, and so on. For example, a levee of a given height is described as having a (say) two percent chance of being overtopped in any year. If the one percent flood flow is of interest, the levee is said to have a (say) twenty-five percent chance of containing the one percent flow event, should it occur.”

District Response: We will revise the report to remove references to level of protection. One reason that such references are in the report is that sponsors, newspapers, the City council and task force and the California Department of water resources and the Reclamation Board all constantly refer to level of protection and ask questions with that terminology.

HQUSACE Analysis: The concern is not resolved. The district responded that the report will be revised and references to the level of protection will be removed. The concern can be resolved upon the district including information in the draft report as indicated in the response.

District Response 2: District will include information in the draft report.

Action: The draft report released to the public will be revised to describe project outputs in terms of their expected performance, not in terms of levels of protection.

3. ENVIRONMENTAL COMMENTS.

Comment A. Mitigation: As part of the Planning Evaluation Criteria presented on page IV-2, the district summarizes the Corps mitigation policy that is fully described in ER 1105-2-100, paragraph C-3.e, pages C-15 and following. However, mitigation planning for the project (as summarized in Table EC-1, page J-18) is not indicative of Corps mitigation planning procedures. Specifically, there is no information to support the significance of the various cover-types impacted by the project. Additionally, the need to mitigate for non-native trees and orchards (elimination of non-native vegetation is commonly utilized restoration measure) is not evident. Significance of other habitats for the Overflow Barrier alternative such as upland and riparian (totaling 26 acres) is not supported in the mitigation documentation. The beneficial aspects of project features such as the 450 cfs water collection canal are not documented in the mitigation analysis. Use of undocumented compensation ratios is not supported by Corps policy. Prior to release of the draft report, the district must prepare a mitigation plan that complies with Corps mitigation policy as outline in ER 1105-2-100, paragraph C-3.e., including cost-effectiveness and incremental analyses.

District Response: The Coordination Act Report (CAR), containing much of the information regarding mitigation requirements and habitat values for the EIS, was unavailable at the time the AFB report was released. The CAR has been provided and all subsequent versions of the EIS/EIR incorporate information from the CAR. It is the opinion of the USFWS (that is carried through the environmental document) that the vast majority of the land in the project area is agricultural land, either row crops or fallow fields. This is considered poor habitat because there is very little diverse habitats available. The USFWS therefore provides value to ruderal vegetation, orchards, and non-native trees as providing moderate habitat value, compared with the agricultural fields. Therefore, mitigation considerations for non-native habitats are incorporated into the impact analysis/mitigation process, to be consistent with USFWS directions.

The USFWS has identified several resource categories that have been assigned a mitigation goal of ‘no net loss of in- kind habitat value or acreage’. Those resource categories were found to be habitat of high value or relatively scarce and include: 1) Riparian, 2) Scrub Shrub, and 3) Shaded Riverine Aquatic Habitat (SRA). To achieve the goal of no net loss of in-kind habitat value or acreage any unavoidable losses would be replaced in kind by providing or managing substitute resources to replace the habitat value of the resources lost where such substitute resources are physically and biologically the same or closely approximate those lost.

The Service has also identified two resource categories that have been assigned a mitigation goal of ‘minimize loss of habitat value’. Those resource categories include: 1) Agriculture/Ruderal and 2) Orchard. Because these two resource categories provide medium value foraging habitat and moderate to low perching sites and cover loss of these areas will also be mitigated.

Mitigation ratios for these resource categories are documented in the CAR. The level of significance of the various habitat types is addressed in the incremental analysis now incorporated into the EIS/EIR. The beneficial aspects of project features are included in the incremental analysis. The elements of the mitigation plan are included in the incremental analysis as supported by the CAR. The USFWS is still evaluating the mitigation requirements for the giant garter snake, which are expected to be provided in the Biological Opinion. Based on discussions with USFWS, we have made our best effort in anticipating what those requirements will be and used our best effort in preparing the incremental analysis. A final mitigation plan will be developed upon receipt of the Biological Opinion.

HQUSACE Analysis: HQ Analysis of SPK response to Comment 3a (Mitigation). AFB material and the district's response to comment 3a (mitigation) have not alleviated the concern. The draft report should document the results of the Corps mitigation planning process as utilized in the selection of a recommended plan. A table showing the existing habitat values, the expected future with-project and the future without project values, is needed to document the impacts of the recommended plan. (The district has clearly demonstrated that the other narrow and wide levee alternatives should be eliminated from further consideration). Alternative plans to mitigate unavoidable project impacts to significant resources, to the extent justified, should be displayed. Significance of the impacted resources should be provided based on the legal, technical and institutional measures as defined in ER 1105-2-100 and the Principles and Guidelines. Cost effectiveness and incremental analysis techniques should be utilized to evaluate mitigation alternatives and their associated costs and benefits, thus providing justification for the district's recommended plan. The district should provide mitigation planning documentation to HQUSACE prior to release of the draft report. The concern is not resolved.

District Response 2: Sacramento District has completed a draft Biological Assessment that identifies species potentially affected, mitigation that can be incorporated directly into the project, and mitigation for loses that cannot be avoided due to construction of the project. Sacramento District has prepared a mitigation strategy that provides a discussion on existing conditions, future conditions without project, and future conditions with project. The mitigation strategy also clarifies impacts, provides

justification for mitigation, and analyzes alternative means of meeting the expected mitigation needs for the project. The vast majority of project mitigation (95%)will be met through project design j(e.g., reseeding disturbed areas and restoration of the haul roads). The largest mitigation effort on this study is primarily driven by special status species and consultation with the USFWS is ongoing. Based on Corps consultation with

USFWS on adjacent and general guidelines, the mitigation strategy includes a most likely mitigation scenario. The final requirements will not be known until endangered species consultation is complete (this will take several more months). Until that consultation is finalized though, we are reasonably confident that the assumptions for mitigation are representative of the extent and cost of mitigation that will be required.

The Biological Assessment will be forwarded the evening of 4/1. The Mitigation Strategy will be forwarded on 4/2.

Action: The district will complete an additional independent technical review (ITR) of the April 1, 2002 biological assessment and revised mitigation strategy to ensure that the mitigation plan for the proposed project is in compliance with Corps regulations. Prior to release of the draft report, the district will provide HQUSACE a copy of the ITR documentation for the biological assessment and mitigation strategy, and provide a fact sheet that provides a description of the recommended general mitigation features and endangered species mitigation features, as well as, cost and benefit information.

Comment B. Land Acquisition For Mitigation: The Project Cost Estimate, Page K-9, includes $580,000 as a lump sum for fee title acquisition of "environmental" lands. If the "environmental lands" are part of the proposed compensatory mitigation, the district should present an evaluation of other real estate alternatives. It may be advantageous to increase the real estate interest in part of the easement lands to fee, such that they also could be used to implement mitigation alternatives. Depending upon what interests were earlier acquired and provided, sufficient real estate interest may also be available in association with the existing flood control levees to implement at least a portion of a compensatory mitigation plan. The purpose of evaluating these alternatives would be to identify the most cost effective means to implement justified mitigation alternatives. Note also that Appendix F, Real Estate, does not include fee acquisition for the overflow barrier alternative.

District Response: The ‘environmental lands’ are part of the proposed compensatory mitigation. The specifics regarding the mitigation proposal are currently being discussed with USFWS, but will not be totally defined until completion of the consultation process The evaluation of other real estate alternatives are being analyzed in the incremental analysis. Three real estate alternatives are being analyzed and they have different land requirements: a) purchase private land in fee, b) use state owned land within the project area, and c) buy credits at a nearby mitigation bank (potentially no land purchase needed). The likely result will be a combination of two of the three alternatives.

Neither the land identified for purchase nor the state-owned land contains enough aquatic habitat to mitigate for the loss of giant garter snake habitat (based on an assumed 3:1 mitigation ratio) and therefore credits at the local mitigation bank will likely be purchased.

The land identified for flowage easements is not suitable for mitigation; flowage easements are being purchased because of the potential for increased flooding depth and duration during events with a greater than ten year recurrence interval. This precludes the development of upland habitat in this area. In addition this area would also be unsuitable for development of wetland habitat as the area does not flood seasonally and does not have the hydrology to support the emergent marsh habitat required for giant garter snake habitat mitigation.

Evaluation of mitigation alternatives, including costs are provided in the recently completed incremental analysis.

HQUSACE Analysis: The district is proposing to acquire 2000 acres of flowage easements. The district asserts that none of these lands could be used for mitigation for the 20 acres of upland habitat impacted by the project. Using information in the AFB submittal, the district is proposing to mitigate at a 2:1 ratio for 20.37 acres of impacts to upland habitat at a cost of $814,800. If 2 percent of the flowage easement area were available for mitigation, and an increase to fee acquisition was acquired at a cost of $80,000, the cost savings to the project would be approximately $700,000. Prior to release of the draft report, the district should closely evaluate increasing the estate in the flowage easement lands to fee, thus allowing some or all of the project mitigation to take place on project lands, and provide documentation of this evaluation to HQUSACE. The concern is not resolved.

District Response 2: Because it is not possible to include all mitigation needs within the design of the project due to the loss of upland habitat, additional land acquisition will be required. The Mitigation Strategy document provides general criteria for the type of land necessary for mitigation. Because habitat mitigation for the giant garter snake requires permanent water and adjacent upland areas and the land subject to flood easement fees does not meet this requirement, the Mitigation strategy evaluates other lands in the project area for mitigation purposes. Project design (i.e., covering the riprap with dirt) has reduced mitigation land requirements to 15 acres and land purchase costs to $50,000 to $75,000.

AFB Discussion: As part of the districts effort to ensure that the mitigation plan for proposed project mitigates fully in the least cost possible, the district will consider opportunities to increase the real estate interest in part of the easement lands required for project implementation.

Action: The fact sheet prepared in response to action item 3a should discuss the feasibility of meeting mitigation requirements by increasing the real estate interest associated with the easement lands required for project implementation.

4. FLOODPLAIN INFORMATION.

Comment. A. Correspondence With Latest FEMA Maps: Page I-2 of the Alternative Formulation Briefing Report noted on page I-2, “New draft Flood Insurance Rate Maps (FIRMs) issued by the Federal Emergency Management Agency (FEMA) in September 1998 show a significant increase in the areas off Yolo County and the city of Woodland that are subject to 100-year floods. Also a later revision of FEMA maps was noted on page III-4. The Woodland Daily Democrat of November 3, 2001 stated, “New flood plain maps out. The new Federal Emergency Management Agency maps which takes effect next April will place nearly 3,000 of Woodland’s homes in a 100-year floodplain.” Did the plan formulation and economics consider these maps for existing and future hydrologic changes in the floodplain? For example, do the peak flows shown on page III-7 for the return periods of 10 to 500 years correspond to the latest FEMA maps? Also since this area is undergoing significant urbanization, can higher future peak flows and higher stages be associated with shorter return periods. Will the proposed levee maintain its design reliability during the full 50-year period of analysis? Appendix A that was furnished with the Pre-Conference materials, stated on page 1 “The base model for this study is from the study entitled “Hydrology on the Westside Tributaries of the Yolo Bypass, CA Reconnaissance Study,” prepared by the Corps of Engineers, November 1993. Additional data have been incorporated into this model by the Corps to reflect recent storm events.” Plan formulation may also have been based upon 27-year old stream flow profiles. It is noted that the Stream flow Profiles in Appendix C furnished earlier as part of August 2001 Pre- Conference material is dated February 1974. The screening and evaluation of alternatives should be based on the latest hydrology. Verify and document that the latest hydrology was used for plan formulation and selection.

District Response: The study team hydrologist updated hydrology for Cache Creek in 2000 and these flows were coordinated with FEMA and correspond to FEMA maps. Almost all of the Cache Creek watershed is undeveloped and it is not anticipated that there will be a significant impact on runoff by urbanization. We believe that hydrology, floodplain maps and plan formulation incorporate up to date information and reasonable estimates of anticipated future conditions for the life of the project. Regarding topographic information, the hydrology appendix does refer to 1974 profiles, however, all of the hydraulic modeling was done using aerial topography developed in 2000. Stream cross sections at bridges were ground surveyed in 2000 and a discussion can be found in the hydraulics appendix. The hydraulic models were also calibrated to observations of the 1995 flood event.

HQUSACE Analysis: The hydrology, floodplain maps and plan formulation incorporate up to date information and per district include reasonable estimates of anticipated future conditions. The concern is resolved.

Action: The report should be revised to document that the latest hydrology was used for plan formulation and selection.

Comment. B. Recommended Plan and Residual Flooding: Page II-10 “The city’s existing trunk system is inadequate to accept the runoff from the agricultural areas to the west and south of the city, resulting in overflow onto the city streets. Inadequate trunk capacity results in street flooding during the 2-year and 10-year events. The extent and magnitude of street flooding increases significantly between the 2-year and 10-year events. The flows reaching the North and South Pump Stations exceed their pumping capacities, resulting in high stages and ponding in the North Canal and South Canal.” The recommended plan Plate 12 shows the Overflow Barrier plan protecting the north of the city. This plan would not change the depth of the floodwaters coming from the west and south of the city. Explain if there any substantial residual damages from floodwaters from the south and west that would not be prevented by the Overflow Barrier.

District Response: The only substantial flood threat to the City of Woodland is from Cache Creek. From the west of town, the runoff area is small and does not pose a flood threat. From the south, Willow slough floods towards the south, from the east, the Yolo bypass would flood to a maximum elevation of 32 ft., which affects only a small portion of Woodland. Interior drainage and localized flooding is not expected to generate major flood damages.

HQUSACE Analysis: Interior drainage and localized flooding is not expected to generate major flood damages. The concern is resolved.

Action: The draft report will be revised to clearly document conclusions regarding residual flood damages related to interior drainage and localized flooding.

Comment. C. Number Of Structures By Flood Frequency: Appendix G Economics contains a description of the structures in the 500-year floodplain. However, no information was provided on the type and numbers of structures in the 2 percent (50-year) to .02 percent (500-year) frequency. The report shows a 26 percent increase in estimated damages between the 50-year ($250M) and 500-year ($315M) events.

District Response: The study economist is developing this breakdown of information but it does not appear that this will affect project benefits, selection or sizing. This breakdown will be included in the draft feasibility report economics appendix.

HQUSACE Analysis: The concern is not resolved. The district responded that the report will be revised and the breakdown on the number and type of structures will be included in the draft feasibility report economics appendix. The concern can be resolved upon the district including information in the draft report as indicated in the response.

District Response 2: Sacramento District will include the breakdown of number and type of structures in the draft report.

Action: The draft report will be revised to include information on type and number of structures in the 50-year and 500-year floodplains.

5. OVERFLOW BARRIER.

Comment A. Potential Adverse Effects On The Settling Basin Project: The tentatively identified NED plan (overflow barrier) calls for removal of a 4,000-foot section of the training levee of the Cache Creek Settling Basin levee and modification of a 3,000-foot segment of the west levee. The draft report does not address whether the overflow barrier adversely affects the Settling Basin project.

District Response: We have considered the impacts on the settling basin and do not believe that there are significant adverse impacts. Based on some preliminary analysis with the FLO-2-D model, the impact of large, rare flood flows into the basin via the inlet weir do not appear to generate severe enough scour velocities to remove much sediment from the basin. Regarding the removal of the training levee though, there will be some impact on the deposition of sediment over the basins’ life – such as changes in the spatial deposition of sediment. We have not done modeling to determine the changes, but believe that can be accomplished in the PED phase. Some modification of O and M of the basin might result, but we believe that there would not be sufficient impact to substantially change the conclusions of this feasibility study.

HQUSACE Analysis: The district pointed out that although some modification of O&M of the basin might result, there would not be sufficient impact to substantially change the conclusions of this feasibility study. The concern is resolved.

Action: The draft report will be revised to include information that the district considered the impacts on the settling basin and the district believes that there are not significant adverse impacts of the overflow barrier on the Settling Basin project.

Comment B. Recommended Modifications - Cache Creek Settling Basin Project: The flood barrier alternative is the NED plan and the tentatively recommended plan. All creek flow of up to 30,000 cfs will be contained within the levees for discharge into the settling basin. During typical rain events, much of the agricultural runoff would also be diverted into the settling basin via the three box culverts. Although some sediment would be deposited from this runoff, it is assumed that this would not significantly alter the design life of the entire basin. Consequently, the overflow barrier would not have a significant impact on the lifetime of the settling basin. The overflow barrier alternative requires a 3,000-foot section of the west levee of the settling basin to be lowered for installation of a 3,000-foot weir. This will allow water to drain from the agricultural flood plain into the settling basin following storm events that exceed 40,000 cfs. These events will cause significant flooding of farmland between the creek and barrier. In addition, three box culverts will be installed in the west levee to provide further drainage for the impounded floodwaters contained below the weir height of 45-feet (NAVD88). When ponding is greater than 45-feet in elevation in the southwest portion of the flood plain, water would not only be entering the settling basin through Cache Creek, but would also be overtopping the weir and/or flowing through the box culverts. This would change the flow pattern within the basin. Please explain if the district has coordinated the draft report recommendation for the modifications to the Cache Creek Settling Basin project and obtained the views of the non-Fed sponsor of settling basin project. At a minimum this project will affect responsibility for OMRR&R related to the 4,000-foot training levee segment.

District Response: The study team has coordinated with the basin operator – CA DWR, as well as the City of Woodland and the Reclamation board. We all recognize that some more study will have to be done in the PED phase to detail out operational impacts and to describe modified OMRR&R for the basin. The planning team has recommended that additional information on basin sediment characteristics be obtained by DWR. By the time the PED phase starts there should be additional data available on sediment so that a better operation plan can be developed.

HQUSACE Analysis: The study team has coordinated with potentially affected local agencies. Additional study will be done in the PED phase for operational impacts and modified OMRR&R for the basin. The concern is partially resolved. The draft report should describe the projected impacts on the existing project and also explain what actions must be undertaken by the Government or Sponsor(s), to ensure implementation of such changes including amendment of existing assurances, agreements, etc.

District Response 2: Sacramento District will clarify and elaborate on the settling basin issues in the draft report.

Action: The draft report will describe the projected impacts on the existing project and also explain what actions must be undertaken by the Government or non-Federal sponsor(s), to ensure implementation of such changes.

6. OVERFLOW (FLOOD) BARRIER.

Comment: There is inconsistent use of different names for the same alternative. The report should just use one name for the recommended alternative (overflow barrier alternative vs. flood barrier alternative).

District Response: We will make the name consistent – “flood barrier” will be the alternative name.

HQUSACE Analysis: The district will use “flood barrier’ consistently. The concern is resolved.

Action: Text in the draft report will be revised accordingly.

7. REAL ESTATE PLAN.

Comment A. ER 405-1-12 Requirements: The District should prepare and include in the draft and final reports a Real Estate Plan (REP) that complies with the requirements contained in paragraph 12-16 of Chapter 12 to ER 405-1-12. Attorney's opinions should not be included as part of the REP. Rather, the REP narrative should simply recite the real estate requirements of the project after consideration of all factors.

District Response: Concur – The Real Estate Plan will be modified.

HQUSACE Analysis: Based upon the District’s concurrence, the AFB concern will be resolved upon receipt of a comprehensive REP. A comprehensive REP (including acreage required for mitigation purposes) prepared in accordance with Chapter 12 must be included in the draft and final reports.

District Response 2: Sacramento District will include a complete REP in the draft feasibility report. However, some lesser level of detail might be appropriate for mitigation lands as final consultation with FWS is ongoing. Until that consultation is complete though, we are reasonably confident that the assumptions for mitigation are representative of the extent and cost of mitigation that will be required.

Action: A comprehensive REP, including acreage required for mitigation purposes, prepared in accordance with Chapter 12 must be included in the draft and final reports. The REP will reflect the real estate acquisition plan prepared in response to Action item B (2) below.

Comment B. Flood Proofing And Easements: (1) Flood Proofing. Several questions related to the scope of real estate acquisition and structure flood proofing are described in a CESPK-PD MFR dated 31 October 2001 that is included in the first tabbed section of the AFB documentation (see paragraphs numbered 2 & 3). Although some of the foundation work identified as necessary for decision making apparently has been finalized, the basic questions on flood proofing and easements do not appear to have been directly responded to in the AFB package. The District should be prepared to address these questions as part of the upcoming AFB telecom. (2) State Law. Among other matters, the District should present how State law principles would affect takings opinion conclusions and what policy factors may support expanded (as requested by the State) or restricted acquisition scope (as presented in the draft REP). (3) Policy Analysis. A general policy analysis of what should be acquired for a project that plans to use acreage for storage capacity (albeit on an infrequent basis) may differ from one where induced flooding on non-project areas is at issue.

District Response: (1) Flood proofing - The planning team has recommend that flood proofing (that is elevating homes, flood proof Ag and industrial buildings) be part of the project where we believe that the flood barrier could induce significant damage to a structure. We have done a preliminary level survey of first floor elevations and compared them to pre and post project flood depths and have found that about 45 structures could suffer increased damage due to the flood barrier in a significant flood event. The rational behind this recommendation is 1) to reduce the likelihood of significant structural damage in the future, 2) avoid future litigation and 3) provide some mitigation to home and business owners north of the flood barrier.

HQUSACE Analysis: The scope and rationale for flood proofing structures has not been satisfactorily addressed in the AFB materials or response. The concern is not resolved.

District Response 2: (1) Flood proofing - Further discussions on 1 April with the team Real Estate attorney indicate that the structures that are subject to the Floodproofing work are probably affected by the barrier enough to be considered a partial taking. The Sacramento District will revise the floodproofing rational and the Takings analysis to explain the situation more thoroughly.

AFB Discussion: Although not incrementally justified, the district explained that flood proofing of approximately 16 homes is included in the cost of the proposed plan. The district believes this is warranted since preliminary surveys indicate that under with project conditions homes not experiencing first floor flooding under existing conditions could be subject to first floor flooding. However, reaching consensus on the scope and extent of real estate acquisition required for the project, see discussion for item 7b, may make flood proofing a moot issue. Rationale for flood proofing structures will need to be pursued in more detail once consensus is reached on the real estate acquisition plan.

Action: After consensus is reached on the real estate acquisition plan, see action for (2) State Law below, the district will determine whether the structure flood proofing component of the plan is still applicable and if so will provide rationale in support thereof. Rationale supporting the flood proofing component and identification of who will have implementation responsibility should be provided with the real estate acquisition plan.

HQUSACE Analysis: (2) State Law - Assumptions and incomplete analysis should not form the basis for a “plan” of acquisition that is released for public review. The concern is not resolved.

District Response 2: (2) State Law - One of the Sponsors attorneys has advocated expanding the use of flowage easements beyond just the eastern area of the project. He suggests that the potential for “increased damages” due to a slight increase in post-project flooding may result in some “takings” under State law, or at least generate some litigation by several of the more vocal property owners in the area.

State cases forwarded by that attorney involve the State court’s after-the-fact analysis of severe levy breaks that caused such severe damage that the court deduced it was a taking (land rendered useless for a period of time – temporary taking). This is not the situation in the present project. The land associated with this project is already flooded in the pre-project condition. In the post-project condition the flooding over the vast majority of the floodplain is increased only 2/10s of a foot to 1 foot. There is no indication that any increase in damage would occur to the agricultural land over what occurs in the pre-project condition. There is, therefore, a di minimus effect on the land, given its highest-and-best use as agriculture. Any residences or commercial buildings that may, after investigation, be materially affected by an increase in depth of flooding, will be protected in place or raised, thus avoiding any increase in damage to homes.

Bottom line is that a 2/10s to 1-foot increase in depth of flooding, once in 50 or 100 years, does not create any calculable amount of increased damage on the Ag land such that it could be construed as a “taking” under either Federal or State law. Buying flowage easements over the entire project area is not justified or supportable by any measurable increase in damages. It is understandable that the sponsor would like to avoid litigation, however, as in most projects, there are always a few landowners who, despite the evidence, will disagree with any position taken by project proponents.

AFB Discussion: The representative from the State indicated the State is not comfortable supporting the project based on the easement acquisition plan proposed by the district, which considers acquisition of flowage easements only in those areas impacted by long term ponding. The State is the non-Federal co-sponsor of the project and will be responsible for acquiring all necessary lands, easements, relocations and rights-of-way (LERRD). The State is concerned with potential litigation from the landowners in the areas where the project induces flooding but where induced flooding is not deemed a taking. The district legal analysis supports the position that, except for the areas impacted by long-term ponding, there in no real estate taking with the project (based on Federal and State laws) on the agricultural lands that have minor induce flooding impacts. However, it was recognized that there might be policy considerations that could support acquisition of flowage easements in the questioned areas. In light of the high potential for litigation and high public interest in this project, the State wants to work with the city of Woodlawn to reach consensus on how best to approach this issue. Also to be considered is the potential to include the additional easement acquisition as part of a locally preferred plan at 100-percent non-Federal cost. It was agreed that the draft report is not ready for release to the public without resolution of this concern. Before the draft report can be released the Corps and the non-Federal sponsors should reach consensus on the real estate acquisition plan for the project. In this regard the State, City and District will work to develop an agreed-upon acquisition plan that is consistent with law and policy. The plan will be coordinated with the division and provided to Headquarter for review. The acquisition plan should clearly identify whether required easements are legally driven or policy driven.

Action: The Corps and the non-Federal sponsors must engage in additional consultation in an attempt to reach consensus on the real estate acquisition plan for the project. In this regard the State, City and District will work to develop a mutually acceptable conceptual acquisition plan as a whole and if additional acquisition is proposed how it would be cost shared. The acquisition plan will be coordinated with the division and provided to Headquarter for review. Release of the draft report will be subject to Headquarter concurrence in the acquisition plan.

District Response: (3) Policy analysis of easements for storage vs. incidental flooding – We believe that the easements should be based on the impact of the project on the land, rather than types of benefits that easement provides to the project. The value that we place on easements incorporate impacts on economic uses of the land due to frequency, duration, depth, sediment and water quality of project induced flooding. To differentiate between floodplain storage that provides project economic outputs versus floodplain storage that is incidental would seem to conflict with the principle of fair market compensation to impacted landowners.

HQUSACE Analysis. The District did not respond to the concern on the types of easements required for project and non-project lands as expressed in the comment. “A general policy analysis of what should be acquired for a project that plans to use acreage for storage capacity (albeit on an infrequent basis) may differ from one where induced flooding on non-project areas is at issue.” The issue is not resolved.

District Response 2: The flood barriers impacts are infrequent and we do not believe that this causes a major change to the agricultural use of the land. Therefore, we think that in the so-called “pond” area, an occasional flowage easement is more appropriate that the storage reservoir type easement. The land is already subject to flooding and is in the FEMA floodplain. The real estate appraisers on the study considered that row crop fields would be flooded to some additional depth and duration by our project, but not more frequently. From that consideration they developed a position on diminution of value of 25% of fee value. We have developed some additional maps (see PDF files 6-5a and 6-5B) that illustrate the short term and longer term “ponding” areas induced by the proposed flood barrier. We will clarify our induced flooding impact on the land and describe the easement rational in the Real Estate Plan.

AFB Discussion: Headquarters staff explained that this comment was meant to elicit other ideas for addressing the induced flooding issue identified above. Based on discussion related to comment and action for item 7b, this comment has been withdrawn.

Action: No further specific action required to address this concern.

8. COMMENTS RAISED DURING THE AFB.

Comment A. Identification of the NED Plan. It appears that a addition error on Table VI-7, page VI-39, for the Overflow Barrier Option 3 has led to incorrectly identifying Option 2 as the NED plan. Based on information in the Table VI-7, the correct Total Annual Cost for Option 3 should be $3,028,100 and not $3,378,100. Based on the revised Total Annual Cost, Option 3 would have net NED benefits of $8,650,900, which is greater than the $8,620,000 in net NED benefits for Option 2. Consequently, the Overflow Barrier Option 3 should be identified as the NED plan.

Action: The district will revised the report to correct the Total Annual Cost for Option 3 and to correctly identify the NED plan.

Comment B. Operation and Maintenance of the Existing Cache Creek Levee Project. In several locations in the documentation the statement is made that the Overflow Barrier plan requires operation and maintenance of the existing Cache Creek Levee project. The operation and maintenance of the existing project should not be linked as a requirement of the proposed Overflow Barrier project, unless it is necessary for the successful operation of the Overflow Barrier project. Based on information in the document it does not appear that operation of the Overflow Barrier is dependant upon maintenance of the Cache Creek Levee project.

AFB Discussion: The district clarified that operation of the existing levee project is a without project condition and not a requirement of the proposed Overflow Barrier project. The district will make the necessary revision to the report text to clarify. The State representative indicated that the State has maintained the Cache Creek levee project and will continue to maintain the project in the future.

Action: The district will revise the AFB report text, as well as, other supporting documentation to reflect that implementation of the Overflow Barrier is not dependant upon maintenance of the Cache Creek Levee project