CECW-PE 1 July 1999

MEMORANDUM FOR Commander, South Pacific Division, ATTN: CESPD-ET-P

SUBJECT: Lower Truckee River, Pyramid Lake Paiute Tribe, Nevada, Feasibility Investigation - Alternative Formulation Briefing (AFB) Guidance Memorandum

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1. Reference is made to the following:

a. CESPD-ET-P (CESPK-PD-A/9 Feb 99) 1st Endorsement dated 24 February 1999, subject: Lower Truckee River, Pyramid Lake Paiute Tribe, Nevada, Feasibility Investigation - Transmittal of F4 Conference Materials;

b. CECW-PE (CESPK-PD-A/25 Mar 97) 2nd Endorsement dated 15 July 1997, subject: Lower Truckee River, Nevada, Request for Credit by the Pyramid Lake Paiute Tribal Council; and

c. Deputy Assistant Secretary of the Army for Civil Works Memorandum dated 21 June 1999, subject: Lower Truckee River, Pyramid Lake Paiute Tribe, (PLPT), Nevada - Credit for Tribal Water Rights, Enclosure 1.

2. An Alternative Formulation Briefing (AFB) for the Lower Truckee River, Pyramid Lake Paiute Tribe (PLPT), ecosystem restoration study was held on 6 May 1999 at the Pyramid Lake

Fisheries conference room in Sutcliffe, Nevada. Participants in the conference included representatives from the Pyramid Lake Tribal Council and Fisheries Board of Directors (non-Federal Sponsor), HQUSACE, CESPD, CESPK, and U.S. Fish and Wildlife Service as shown on Enclosure 2. The AFB was held to obtain early HQUSACE involvement in the preparation of the subject decision document prior to its submittal to Headquarters for Washington level policy review and approval. The PLPT’s concerns, review comments, discussions during the AFB, and subsequent actions are provided as Enclosure 3.

3. The Deputy Assistant Secretary of the Army for Civil Works has approved the PLPT’s request to receive credit for the water rights provided for the project. The PLPT will be entitled to a credit for the full market value of such rights against its share of total project costs. This treatment of water rights is contingent upon a clear demonstration that the water rights are necessary and sufficient for the successful implementation of the project. That is, the quantity of water evidenced by such rights must be necessary, and must be available pursuant to state law to achieve the environmental benefits used to justify the project. Further, the water rights that are provided must be owned by the PLPT and dedicated to the project in perpetuity. Finally, the analysis described in the action for Comment 2.m. of Enclosure 3 must reflect that there are no use or crediting restrictions that attach as a result of acquisition of water rights by the PLPT with funds received from other Federal agencies. The amount of credit will be determined by an appraisal process as described in the Project Cooperation Agreement (PCA). In no circumstance shall the credit that is afforded to the PLPT exceed the 35 percent non-Federal share. In addition, if the project moves forward as a specifically authorized ecosystem restoration project, current agency policy would require the PLPT to share in preconstruction engineering and design costs during the upcoming design phase of the project. Alternatively, if the project is implemented under Section 206 of WRDA 1996, there is no non-Federal cost sharing required during the design phase and design costs incurred would be shared as part of the total project costs in accordance with the terms of the PCA.

4. If the decision is to continue proceeding under the General Investigations Program, the draft feasibility report may be released to the public concurrent with processing to higher Corps echelons. Further higher level review of this project will be based on conformance with the guidance provided herein, Enclosure 3. To assist in expediting the Washington level review process, the AFB compliance memorandum should indicate how and where each comment was addressed in the draft report.

5. In view of the scope of the tentatively recommended plan and apparent desires of the non-Federal sponsor, project implementation may proceed under Section 206 of the continuing authorities program if deemed appropriate by the district and division.

FOR THE COMMANDER:

/Signed/

Encls JAMES F. JOHNSON

Chief, Planning Division

Directorate of Civil Works

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CF:

CECW-PE

CECW-P

CECW-AR

CECW-ZD

MFR: The OASA guidance concerning crediting of water rights and PED cost sharing was coordinated with Mr. Robin Mooney, CESPD-ET-P on 21 June 99. The basic memo and PGM have been revised to reference and reflect OASA(CW) guidance.

Cleared by OASA(CW): See enclosed OASA(CW) memorandum dated 21 Jun 99.

Name Representing

1. James Plympton Pyramid Lake Paiute Tribe (PLPT)

2. Mervin Wright, Jr PLPT

3. Gordon Frazier PLPT

4. William Wadsworth PLPT

5. John W. Jackson PLPT - DWR

6. Dave Monda PLPT

7. Albert John Jr. PLPT

8. Nancy Vucinich PLPT

9. Bob Burns PLPT

10. Brian Niewinski PLPT

11. Bob Pelcyger PLPT

12. Pamela Wright PLPT

13. Lisa Heki Fish and Wildlife Service

14. Walter Yep CESPK-PD

15. Phil Lee CESPK-PM

16. Mario Parker CESPK-PD

17. Patricia Roberson CESPK-PD

18. Merritt Rice CESPK-PD

19. Susan Rosebrough CESPK-PD

20. Robin Mooney CESPD-ET-P

21. Jim Conley CESPD-ET-P

22. Mark McKevitt CECW-AR

23. John Lucyshyn CECW-PE

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CECW-PE 21 June 1999

1. Issues Raised by the Pyramid Lake Paiute Tribe at the AFB: Mr. James Plympton, Chairman, Pyramid Lake Paiute Tribe (PLPT) Fisheries Board of Directors, stated the Tribe would not proceed with the study without a decision regarding the PLPT’s request for assurances that credit be granted toward a future project for the value of water rights the PLPT is purchasing. He also stated that the PLPT would not proceed further if they are required to provide additional funds for the completion of the study or implementation of the project and they may seek reimbursement of funds they have provided for the cost shared feasibility study if the water rights credit concern is not resolved. Furthermore, the PLPT requested that the decision regarding credibility of water rights be made immediately at the opening of the AFB Conference. However, Corps’ representatives explained that this policy decision must be made by the Assistant Secretary of the Army for Civil Works. Mr. Lucyshyn, CECW-PE, indicated he would coordinate the PLPT’s concerns via this memorandum with the Office of the Assistant Secretary of the Army for Civil Works to obtain a final decision on the crediting of water rights.

Secondly, the PLPT has reached consensus on one of the alternative ecosystem restoration plans evaluated and would like to proceed without any further analysis. Mr. Plympton advised the Corps representatives that the PLPT would also be corresponding with the Assistant Secretary of the Army for Civil Works regarding the PLPT’s concerns with this effort. These issues are discussed in the following paragraphs:

a. Background of Water Rights Crediting: The issue of crediting water rights was initially considered during certification of the reconnaissance study. In the reconnaissance guidance memorandum it was recognized that the sponsor’s provision of water rights would be considered as part of the lands, easements, right-of-way, relocations, and disposal areas (LERRD), and the feasibility study would need to demonstrate that the water rights acquisition clearly restores significant resources in the most cost-effective manner. The PLPT was advised and understood that they would be responsible for any water rights acquisition.

At the start of the feasibility study the PLPT requested assurances for credit toward the project for the value of water rights in a letter to the Sacramento District dated 7 February 1997. It was the position of the Corps of Engineers that assurances could not be provided then since the feasibility study and later discussions could produce negative decisions as related to need, justification, or creditability of some quantity of water for a proposed project. However, so as not to penalize the PLPT concerning advance acquisition of water rights, it was agreed that without project conditions for the feasibility would be established as the conditions that existed prior to the anticipated water rights purchases by the PLPT.

The AFB documentation identified a justified cost effective ecosystem restoration plan having an estimated cost of $4.8 million. The plan consisting of the acquisition of additional water to increase flows in the lower Truckee River and construction of a fishway bypass channel that substantially increases the passage of the endangered cui-ui and threatened Lahontan Cutthroat Trout (LCT) past the Marble Bluff Dam to the lower Truckee River. Study efforts to date have concluded that provision of water rights is imperative to the success of the overall plan. In addition, the plan would provide an additional fish passage system at Marble Bluff Dam, promote a more rapid rate of rise in the Pyramid Lake water surface elevation, and increase fishery habitat within the lower Truckee River through increased flows resulting in riparian habitat regeneration. It is expected that the new fishway bypass channel would allow for an increase in cui-ui passage at Marble Bluff Dam over without project conditions by about 50,000 fish per day during the peak spawning season and assist in the reestablishment in a fall run of the LCT. The acquisition of additional water would also increase fish spawning and rearing success in the lower Truckee River system.

b. Water Rights Discussion: Since the provision of additional water is necessary for the project, the issue of affording credit to the PLPT for the water rights provision as part of lands, easements and rights-of-way would be acceptable provided: a) It can be established that the PLPT will own the water rights provided for the Corps project; b) It can be demonstrated that the water to be provided by the sponsor is for the beneficial use of the Corps project in a specific location; and c) It can be demonstrated that the water rights provided for the Corps project are acquired in perpetuity.

Mr. Bob Pelcyger, Counsel for the PLPT, reviewed the various options available to the PLPT for providing the necessary water rights. In summary, the PLPT has acquired and holds in its name 1,000 acre-feet of water that could be used for the project. In addition, as a result of the recent Truckee River Water Quality Settlement Agreement, $12 million in Federal funds has been appropriated and is being held by the PLPT to acquire water rights for the purpose of augmenting instream flows in the Truckee River and Pyramid Lake to improve water quality standards and maintain and preserve habitat for the endangered cui-ui and threatened LCT as required by Public Law 101-618. As part of this settlement the communities of Reno and Sparks, Nevada, are also acquiring $12 million in water for the PLPT. However, the Federally appropriated funds cannot be used to purchase water until the Department of the Interior completes necessary NEPA documentation. Further, the Nevada State Engineer has ruled that the PLPT has rights to all unappropriated water in the lower Truckee River. Finally, the PLPT has water available from rights available from rededication of land use from a land exchange program. It is Mr. Pelcyger’s opinion that the PLPT can provide the necessary water rights needed to support the project under the conditions identified above and will be working with the PLPT to identify the specific category of water to be used to support the project.

As noted on Enclosure 1, the Deputy Assistant Secretary of the Army for Civil Works has approved the PLPT’s request to receive credit for the water rights provided for the project. The PLPT will be entitled to a credit for the full market value of such rights against its share of total project costs. This treatment of water rights is contingent upon a clear demonstration that the water rights are necessary and sufficient for the successful implementation of the project. That is, the quantity of water evidenced by such rights must be necessary, and must be available pursuant to state law to achieve the environmental benefits used to justify the project. Further, the water rights that are provided must be owned by the PLPT and dedicated to the project in perpetuity. The amount of credit will be determined by an appraisal process as described in the Project Cooperation Agreement (PCA). In no circumstance shall the credit that is afforded to the PLPT exceed the 35 percent non-Federal share.

Action: HQUSACE will continue coordination with the division, district and Mr. Bob Pelcyger, PLPT counsel, to insure that the water rights chosen for dedication to this project meet all necessary requirements to receive credit as defined in the discussion above. Given the possible use by the PLPT of water rights acquired through use of federal funds, as well as the trust relationship between the Tribe and Government through the Bureau of Indian Affairs (BIA), written approval of the proposed project from DOI and BIA is advised.

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c. PED Cost Sharing: The PLPT is also concerned about the requirement to provide the 25 percent PED cash contribution since this requirement came about subsequent to the PLPT entering into the feasibility study cost sharing agreement. The PLPT is in the process of accomplishing pre-acquisition legal and related administrative activities pertaining to water rights acquisition. The PLPT believes much, if not all, of these efforts to acquire water rights are similar to those that would be necessary during PED. Accordingly, because the water rights are integral to the success of the proposed project and the PLPT is accomplishing activities that are normally conducted during PED, if the project continues to proceed under the General Investigation program, the PLPT would like their current pre-acquisition efforts to be considered and used to offset any PED cost sharing requirement. The PLPT indicated they would not proceed with this study effort further if they are required to make additional cash contribution for PED and in that case would seek reimbursement of funds provided for the feasibility study.

Discussion: The project implementation process was also discussed, including the option of converting the project for implementation under Section 206 of the Water Resources Development Act of 1996 (WRDA 96). The total cost of the proposed restoration project are under $5 million and proceeding under the Section 206 program is a viable option, provided Congressional authorization is not necessary to resolve water rights crediting. Under this authority, a 25% upfront cash contribution for PED is not necessary and the PED cost sharing would no longer remain an issue. If a determination is made that the water rights are creditable as a LERRD the division office intends to convert the study and proceed with implementation of the project under the Section 206 program.

In addition, as noted on Enclosure 1, the Deputy Assistant Secretary of the Army for Civil Works has determined that if the project moves forward as a specifically authorized ecosystem restoration project, current agency policy would require the PLPT to share in preconstruction engineering and design costs during the upcoming design phase of the project. Alternatively, if the project is implemented under Section 206 of WRDA 1996, there is no non-Federal cost sharing required during the design phase and design costs incurred would be shared as part of the total project costs in accordance with the terms of the PCA.

Action: If the project moves forward as a specifically authorized ecosystem restoration project, current agency policy would require the PLPT to share in preconstruction engineering and design costs during the upcoming design phase of the project. If the project is implemented under Section 206 of WRDA 1996, there is no non-Federal cost sharing required during the design phase and design costs incurred would be shared as part of the total project costs in accordance with the terms of the PCA. Should the division/district/PLPT determine that this project should proceed under the Section 206 program, the district should terminate the General Investigation effort and complete the decision document and implement the project under the Section 206 program.

2. HQUSACE Policy Compliance Review Comments.

Comment a. Benefits to Lahontan Cutthroat Trout (LCT): The Executive Summary, as well as other places in the report, identifies a project benefit as the reestablishment of historic spring and fall runs of LCT. The report states on page II-3, "However, water temperatures below Derby Dam are insufficient to facilitate Lahontan cutthroat trout spawning, even in high-flow water years." ER 1105-2-100, paragraph 4-46.d, requires that the restoration plan make a significant contribution to address the specified restoration problem. It is not clear how the restoration plan will provide benefits to the LCT. The district should clarify the project benefits to the LCT including any other restoration projects that may be necessary for the realization of benefits to the LCT.

District Response: The limitations for LCT spawning is based on two basic things 1) Marble Bluff Dam, and 2) Spawning Habitat. The statement on water temperatures being insufficient below Derby Dam for LCT is incorrect. The water quality for LCT is suitable for spawning in areas above Nixon. It would be more accurate to say that water temperatures are marginal to fair between Nixon and Derby Dam.

Discussion: Water temperatures for spawning are poor below Nixon, but the majority of cui-ui and LCT do not attempt to spawn in this reach of the river. This project, if implemented, would improve LCT passage over Marble Bluff Dam by increasing the capacity of the fishway and therefore fish passage. The increased flows from the water rights would improve fish spawning and rearing habitat in the Lower Truckee River and improve habitat in Pyramid Lake. In addition, the without project condition is unimpeded passage at Numana Dam. The report will be revised to facilitate a better understanding of benefits for the LCT. Ms. Lisa Heki of the U.S. Fish and Wildlife Service (FWS) advised the Corps that besides the benefits to the cui-ui, the new fishway bypass channel would also contribute in the establishment of a fall run of the LCT. Ms. Heki is the FWS’s regional expert on cui-ui and LCT currently overseeing fish passage operations at Marble Bluff dam.

Action: The district will revise the report to include the information in the response and discussion to facilitate a better understanding of the project’s benefits on the LCT.

Comment b. Quantification of Benefits: The report states on pages III-4 and III-5 that specific fishway problems are high mortality due to overcrowding and asphyxiation along with pelican predation. However, the report does not contain any data on the with and without project conditions regarding mortality. ER 1105-2-100, paragraph 4-44 emphasizes the importance of forecasting and development of a consensus on the outputs that the project would produce. Without the mortality data, the benefits of the project are not evident. The district should provide data on existing mortality as well as future, with project mortality estimates.

District Response: Under without project conditions, the fishway when operated passes approximately 25,000 fish/day. Under with project conditions, the fishway will pass approximately 75,000 fish/day, and increase of 50,000 fish/day. The existing mortality rate is conditions is estimated at 2,500 fish/day. The resulting mortality rate is 10 percent of fish attempting to use the fishway. However, the mortality rate is expected to decrease under with project conditions because the new design of the fishway will have increased capacity from 50 cfs to 100 cfs, an increased cross sectional area, and depth. In addition, the design of the new fishway includes redesigning the fish ladders to become more cui-ui friendly which will allow the fish to swim up the fishway more efficiently. All of these items will reduce both pelican predation, asphyxiation, and overcrowding.

Discussion: Migration of the cui-ui past Marble Bluff Dam is limited to a short spawning season. The existing lock system currently limits the number of cui-ui that can migrate past the dam. If the cui-ui cannot migrate within the limited spawning season they retreat back to Pyramid lake and do not spawn. During its short spawning season, the new fishway bypass channel will provide increased opportunities for the cui-ui to migrate past Marble Bluff Dam. The high mortality rate under without project conditions in the existing fishway is also due to the design of the existing fish ladders. The ladders in place were designed primarily for west coast salmonids and are not suitable for the slower moving cui-ui.

Action: The district will revise the report to reflect information contained in the response and discussion above.

Comment c. Benefits to Riparian Vegetation: The first sentence of the Executive Summary states that the report plan would promote riparian regeneration and ecosystem maintenance along the lower Truckee River. No further information could be found in the report to describe or evaluate the benefits associated with this portion of the plan. Although the tentatively selected plan would benefit significant resources, the claims for riparian habitat benefits should be further described or deleted from the report.

District Response: Before the description of each alternative in Chapter IV, Plan Formulation, there is an explanation of how the increased flows that will be coming in the critical summer months add to the necessary in-stream flows needed to for vegetation maintenance and regeneration.

Discussion: No additional construction is required to achieve the benefits to the riparian vegetation. The fact that additional water is introduced into the system will promote riparian revegetation along the lower Truckee river downstream of Numana Dam.

Action: The district will revise the report to include additional information to further explain the project impacts on promoting riparian regeneration and ecosystem maintenance along the lower Truckee River.

Comment d. Items of Local Cooperation: The items of local cooperation on page V-6 are not sufficiently detailed to adequately describe the sponsor’s responsibilities that would ultimately be included in a project cooperation agreement (PCA). The district must include a complete list of local cooperation items in the draft report released for public review and discuss these requirements with the sponsor.

District Response: It was believed that of the current list of local cooperation requirements, those believed applicable to this environmental restoration project were included. The items of local cooperation will be reviewed and ones added as necessary.

Discussion: If the division/district decide to proceed with proposed project under the Section 206 program, the district should initiate coordination with the PLPT on the model Section 206 project cooperation agreement (PCA). Pursuant to EC 1105-2-214, paragraph 18.c.(1)(a), the decision document supporting the Section 206 PCA will need to include a recommendations section containing a clear, concise description of the plan being recommended for implementation, and a summary of the non-Federal sponsor’s responsibilities.

Action: If the decision is made to proceed with the proposed project under the Section 206 program, the district should initiate coordination with the PLPT regarding requirements contained in the Section 206 model PCA. If the decision is to continue to proceed under the General Investigations Program, for the draft report, the district will need to review the list of local cooperation items to ensure all appropriate items are included.

Comment e. Environmental Mitigation. Table I, page ES-3 and Others: The cost information on alternatives and the tentatively selected plan include a cost for "Environmental Mitigation" that is estimated to be 5 percent of the project construction cost. The purpose of this project is environmental restoration. As such, the project justification process must show that the future with project conditions results in an improvement to the project area (ER 1105-2-100, paragraph 7-35.b). The report does not demonstrate that there are any significant resources that would be lost as a result of project implementation. The district must remove the mitigation costs or provide justification for including this item in the project cost estimate.

District Response: Mitigation estimates in the AFB document were taken at 5 percent of the project construction costs. The mitigation needed for constructing the selected plan would be considerably less and will be developed before the report goes out for public review. A draft CAR is not available at this time, however it is believed that the mitigation for the selected plan will be minimal because very little vegetation would be removed during construction.

Discussion: The district will review the project design to avoid any requirement for fish and wildlife mitigation. In accordance with EC 1105-2-214, Project Modifications for Improvement of the Environment and Aquatic Ecosystem Restoration, since the purpose of this project is ecosystem restoration the project should be designed to avoid any requirement for fish and wildlife mitigation.

Action: The district will review the design of the proposed project to avoid any requirements for fish and wildlife mitigation.

Comment f. Engineering and Design, Supervision and Administration (E&D, S&A): The cost information in report Table V-2 identifies E& D and S&A as a 20 percent of the construction cost for a total of $547,000. In order to evaluate implementation options, the district should determine which part of the $547,000 would be included in a Preconstruction Engineering and Design Agreement and which part would be covered under a PCA as part of construction.

District Response: Of the $547,000 about 60 percent (12 percent of the total project construction items) would have been for planning, engineering, and design and related pre-construction activities. The remaining 40 percent (12 percent of the total project construction items) would have been for construction management. These values will be reassessed during development of costs for the selected plan prior to the draft report.

Action: As indicated in the response, the district will review these costs and present them individually in the report documentation prior to release of the draft report.

Comment g. Completeness: The report states on page II-12 that yolk-sac larvae remain in gravel substrate for 5-10 days after hatching. The information on page II-15 indicates that there is substantial erosion in the Truckee River below Numana Dam. Page III-6 contains a description of degraded spawning habitat. It is not evident from the preceding information that the required spawning habitat is available in the Truckee River between Marble Bluff and Numana Dams. Without suitable spawning habitat, the project benefits may not be realized. The district should provide information regarding the availability of appropriate spawning habitat in this reach of the Truckee River.

District Response: Concur that it is not evident from the information in the report that the required spawning habitat is available in the Truckee River between Marble Bluff Dam and Numana Dam. However, it is believed the erosion problem has been overstated in the report and it will be revised. Both cui-ui and LCT are successfully spawning and young are surviving in this river reach.

Discussion: With additional seasonal instream flows the spawning season will be increased. Water rights that are being acquired as part of this project will improve spawning and rearing habitat in the lower Truckee River. The flows will be increased during the months of July through September which traditionally have the lowest flows and in some years the flow is non-existent. The benefits from these additional flows in the critical summer months will increase the shaded riverine aquatic habitat and improve the spawning habitat by lowing water temperature, providing cover and increasing shade, and food supply. In addition, the flows will promote a more rapid rate of rise of Pyramid Lake. Since the juvenile cui-ui generally spend several summer months after hatching in the river, the additional flow in the river would assist the survivability for these young fish. In addition, once the LCT runs are again established, the young fish who generally stay in the river for about a year before returning to Pyramid Lake, will benefit from the additional flows. There is no known direct relationship between increased summer stream flows and increased cui-ui spawning success in the spring. It is believed, however, that with a relatively small dependable increases in the summer water flow rates, significantly additional vegetation growth can occur along the river banks. This vegetation along with the greater wetted perimeter of the river will help restore spawning and rearing conditions. Based on some empirical evidence, it is estimated for this study that with the relatively small numbers of cui-ui passing Marble Bluff Dam compound with the number of fish trying to migrate up the river to spawn, an increase in summer flow of 10 percent will increase habitat to support an additional 50 percent. Given this, and since the selected plan will increase cui-ui passage from about 75,000 to 125,00 cui-ui, the increase in summer flow needed would range from about 2000 acre-feet to 3000 acre-feet of water per season.

Action: The district will revise the report to include pertinent information contained in the response and discussion.Return to Planning Guidance Page            Top of Page

Comment h. Existing Conditions: Some of the information the report is conflicting. These conflicts require clarification in order to understand how the tentatively selected plan was determined. Fish passage at Marble Bluff Dam is estimated at 180,000 fish per day at the fish lock and 5,000 per day at the fishway bypass on page II-15, and 100,000 per day at the fish lock and 25,000 per day at the bypass channel on page II-17. The adult population of cui-ui is given as 500,000 to 1.4 million on page II-11, and 1 to 2 million on page II-17. The range of numbers provided for the baseline conditions makes it difficult to determine if the projected increases in daily fish passage for the proposed alternatives are attainable. The district should review the baseline conditions for the study area and be prepared to discuss at the conference.

District Response: The baseline conditions are as follow: 100,000 fish per day for the fish lock and 25,000 fish per day at the fishway bypass. The adult population of cui-ui is between 1 to 2 million. The report will be revised to show the correct baseline conditions throughout the report.

Action: The district will revise the report to show the correct baseline conditions.

Comment i. Pyramid Lake Elevation: Plate 9 shows that the water surface elevation of Pyramid Lake is dynamic. The district should provide a discussion of the information presented in Plate 9 at the conference and discuss the 1999 spring runoff. Information on the delta barrier as related to the current lake level should be available to facilitate understanding of the effectiveness of the selected plan. Information on the 100-year project life should be discussed relative to the graph showing the water reaching the top of the dam in 70 years (2070).

District Response: There is a high projected variability of water surface changes in any year. The relationships shown in plates 8 and 9 is a linear regretion plot of projected water surface changes based on the Truckee River Operating Agreement (TROA) simulations. The bands in plate 8 were an attempt to show the best and worst case conditions using the TROA information. The information in plate 9 simply represents a linear regretion of simulations with the addition of the water being obtained through future water right purchases.

Discussion: It was clarified at the AFB that under the TROA the long term trend is for Pyramid Lake elevations to increase. However, it was recognized that fluctuations in lake elevation can and will occur yearly. The linear regretion plot alone does not present a complete picture regarding what to expect in lake elevations. The district has agreed to review this concern and will try to develop a way for showing the potential variable future lake levels.

Action: Additional information will be added under the discussion of without-project future conditions to better explain how the projected future lake level changes were developed. The text will be changed to describe spring runoff conditions and the plots of plates 8 and 9 will be adjusted accordingly. The implications of lake levels reaching the top of Marble Bluff Dam during the project life will be explained in the discussion for the selected plan.

Comment j. Barrier Effects of the River Delta: Based on information on EIS page 4-33, the Truckee River delta is no longer a barrier to migration when the lake is above elevation 3805. The 1998 elevation on Pyramid Lake was 3808 (page II-1). What is the district’s conclusion regarding the effect of the elimination of the delta barrier to the relative use of the river versus the bypass channel by the spawning runs.

District Response: The fishway bypass channel is designed to be used in both years with the delta barrier and without the delta barrier. The fish lock at Marble Bluff Dam will be used concurrently.

Discussion: During the field visit a concern was regarding how the portion of fishway bypass channel that transitions into the lake will be constructed since this area is presently under water..

Action: The district will review the design of the proposed fishway bypass channel and ensure that the design of the fishway transition reflects hydrologic conditions expected to prevail at Pyramid Lake under with project conditions. In addition, the district will ensure that appropriate measures are included for construction of the transition portion of the project.

Comment k. U. S. Fish and Wildlife Service Recovery Plan for Cui Ui: The report states on page I-5 that the FWS developed a revised recovery plan in 1992. The report should provide additional information on the relationship of the tentatively selected plan and the FWS endangered species recovery plan.

District Response: Close coordination with Fish & Wildlife Service(FWS) has been on-going throughout the project and FWS fully supports the tentatively selected plan. Additional information stating the relationship between the report and the tentatively selected plan will be added to the report before it goes out for public review.

Discussion: The district indicated that coordination with the FWS on the biological opinion has yet to be initiated. The district does not perceive this to be a concern since Ms. Heki of the FWS has been actively working with the Corps on formulating alternative and fully supports the fishway bypass channel alternative.

Action: The district will continue coordination with the Fish and Wildlife Service on the Section 7 process.

Comment l. Discount Rate and Price Levels: The discount rate used in the Executive Summary and the report analyses is 7-1/8 percent. Economic Guidance Memoranda No. 99-2 identified the discount rate for fiscal year 1999 as 6-7/8 percent. The district should revise the report as appropriate to utilize the current discount rate.

District Response. Concur, the report will be revised before the draft report goes out for public review.

Action: The district will revise the report to reflect the current discount rate and 50 year period of analysis.Return to Planning Guidance Page            Top of Page

Comment m. Financial Capability of the non-Federal Sponsor: Federal funds will be used for acquisition of water rights for this project. The sponsor will also be working with the FWS to receive funding and assistance for the operation and maintenance of the project. ER 1105-2-100 Table 2-1 describes the information to be included in decision documents. A preliminary financial analysis must be included that shows the sponsor’s current and projected ability to finance it’s share and to carry out operation and maintenance. The non-Federal sponsor’s participation seems to be dependent upon the Corps decision to accept the value of water rights as credit towards LERRD and FWS performing the O&M of the project. An anticipated date when the water rights will be acquired should be in the final report along with a letter from FWS expressing their commitment to O&M the project for the sponsor.

District Response: The tribe’s participation in the project is dependent upon receiving credit for the water rights as a LERRD. The tribe has already acquired approximately 1,000 acre-feet and plans to acquire an additional 11,000 acre-feet through the Water Quality Water Settlement Act. Although the tribe will be the non-Federal sponsor to O&M the completed project, the FWS has expressed a willingness to enter into an agreement with the sponsor to continue to operate and maintain the fishway. The Tribe will be required to operate and maintain the project. However, they may enter into a separate agreement with the FWS.

Discussion: At the AFB Ms. Heki of the FWS reaffirmed the FWS’s position that the FWS would enter into an agreement with the PLPT to maintain the fishway bypass channel. In addition, Mr. Pelcyger discussed the various option the PLPT have in providing the necessary water rights, see water rights discussion in item 1b. Regarding crediting of water rights, as discussed in item 1b., for the water rights acquisition to be considered as part of lands, easements and rights-of-way the PLPT will need to demonstrate that: (1) It can be established that the PLPT will own the water rights acquired for the Corps project; (2) It can be demonstrated that the water to be acquired by the PLPT is for the beneficial use of the Corps project in a specific location; and (3) It can be demonstrated that the water rights acquired for the Corps project are acquired in perpetuity. Preliminary review by the district counsel of these requirements follows:

(1) Can it be established that the Pyramid Lake Paiute Tribe will own the water rights acquired for the Corps project?

Response: Pursuant to the Truckee River Water Quality Settlement Agreement (Settlement Agreement), the Department of the Interior is providing $12,000,000 to the Paiute Tribe to acquire water rights for the purpose of augmenting instream flows in the Truckee River and Pyramid Lake to improve water quality standards and maintain and preserve habitat for the endangered cui-ui and threatened Lahonton cutthroat trout as required by PL 101-618. The Tribe will be the named holder of any water rights required.

(2) Can it be demonstrated that the water to be acquired by the sponsor is for the beneficial use of the Corps project in a specific location?

Response: The Corps project consists of (1) modifying the existing fishway bypass channel at Marble Bluff Dam and (2) restoring fish habitat along the river upstream from Marble Bluff Dam and in Pyramid Lake through increasing instream flows via water right acquisition. The additional water acquired by the parties to the Settlement Agreement will contribute to that portion of the project to help restore instream flows to the Lower Truckee and Pyramid Lake. A portion of the instream flows will be of direct benefit to the Corps project. Without these flows, the project increment consisting of restoring habitat for the endangered cui-ui will not occur. The district has calculated that any dependable increase in instream flows to the lower river will also benefit habitat regeneration and lake level raises. Approximately 2,000 acre feet of the total being acquired by the tribe will be credited toward this project. As water rights are acquired and transfers of use obtained, it is the district’s understanding that the beneficial use of the water can be specifically designated in the transfer document for the beneficial use of the Corps project.

(3) Can it be demonstrated that the water rights acquired for the Corps project are acquired in perpetuity?

Response: The district understands from talking with PLPT representatives that the water rights being acquired by the PLPT are being acquired in their own name and would, therefore, be owned by the Tribe in perpetuity.

Based on the district’s preliminary responses to the above questions, information provided by Mr. Pelcyger, it would appear that the water rights acquisition by the PLPT for the proposed project is consistent with current policy, for the water rights acquisition to be considered as part of lands, easements and rights-of-way necessary for project implementation.

Action: The report will be revised to include a section on how the PLPT plans to provide the water rights necessary for the project. In addition, the final report will include a letter from FWS stating their willingness to enter into a separate agreement with the Tribe to continue to perform operation and maintenance on the fishway. The report must also contain a comprehensive Real Estate Plan (REP) that, among other things, describes all LERRD requirements, and the estimated value therefor, for the project including those that may be attributable to the lake level raises prompted by implementation of the project. Finally, the report must disclose the sources of all Federal funds that have or will be used in acquiring and providing the LERRD (including water rights) and an analysis of whether any use or crediting restrictions attach as a result of utilization of such funds.

Comment n. Completeness of the Restoration Plan: The report indicates on page II-14 that this report uses the assumption that fish passage would be improved at Numana Dam. The district should be prepared to discuss the relationship of all of the Corps actions in the Truckee River basin at the AFB.

District Response: The district is prepared to discuss the relationship of all of the Corps actions in the Truckee River basin at the AFB.

Discussion: CESPK, CESPD, HQUSACE and the PLPT discussed the many actions underway by the FWS, PLPT, Corps and Bureau of Reclamation to restore the ecosystem of the lower Truckee River. In addition, it was clarified that even if fish passage past Numana Dam is not fixed, the fishway bypass channel at Marble Bluff Dam would be beneficial.

Action: No action required.

Comment o. Plan Implementation: As part of the AFB, the implementation processes should be discussed including the use of Section 206 (WRDA 1996). The CECW-PM memorandum, 21 April 1999, delegated approval authority for continuing authority program decision documents to the MSCs. If the determination is made to pursue this project as a continuing authority project, the district should revise the Plan Implementation portion of the project prior to release to the public. Currently the report has incorrect information. Only the draft EIS public review period is 45 days. The correct approval process should be identified in the report

District Response: Concur, the District is prepared and supports implementing the project under the 206 process. If this route is chosen, which is highly likely, the report will revised to reflect the new implementation process before the draft report goes out for public review. The report will also be revised to show the Environmental Document will be an EA.

Discussion: Provided there are no outstanding issues concerning credit for water rights that would require Congressional authorization to resolve, the benefits of pursuing the proposed project as a Section 206 project was discussed. The implementation schedule presented at the AFB reflected submitting the report to Congress for authorization of the proposed project. On this basis, the project schedule reflects project authorization in a WRDA 2000, construction initiation in FY02, and project completion in FY03. However, in view of the magnitude of total project costs and Federal costs and expectations that crediting of water rights will not require additional Congressional authorization, the district believes that the PLPT would be better serviced if the proposed project were implemented under the Section 206 program. Under the Section 206 program, the district estimates that construction of the project could be complete as early as FY02, an entire year faster than if the project needed Congressional authorization. The district should fully coordinate with the PLPT regarding the potential of proceeding under the Section 206 program and ensure the PLPT has a clear understanding of the program limits. At this time, the divisions position is that if a determination is made that the water rights are creditable as a LERRD, the ongoing General Investigations study will terminated and the effort will be converted to the Section 206 program. The decision document would then be completed and the project implemented under the Section 206 program. Prior to making a decision to convert to the Section 206 program, the district has been advised to review the project cost estimate to ensure there is no concern of exceeding the Federal cost limit under the Section 206 program.

Action: Upon the division determines that this project will proceed under the Section 206 program, the district will terminate the General Investigation effort and complete the decision document and implement the project under the Section 206 program. Pursuant to CECW-PM memorandum dated 21 April 1999, subject: Delegation of Approval Authority for Continuing Authorities Program Decision Documents, the Division Commander is authorized to approve the Section 206 program decision document.

Comment p. Relationship Between the Fish Lock and the Bypass: Based on the flow information in Plate 10, and the estimated increase in the fishway channel to 100 cfs, the attracting flows of the expanded channel would be increased and the flows of the Truckee River would be decreased during the spawning season. It is not clear whether the with project condition assumes operation of the fish ladder for the life of the project or whether reduction or elimination of the fish ladder is an intended outcome of the project.

District Response: The fishway channel will increase flow from 50 to 100 cfs, this increase is minor when compared to the flow required for the fish lock which is at a minimal flow of 500 cfs and usually runs at around 2000 cfs. Under the with project condition, operation of the fish ladder will continue. The report will be revised to facilitate a better understanding of the project benefits.

Discussion: The fish lock would remain in operation and the fishway bypass channel would improve the efficiency of cui-ui passage past Marble Bluff Dam and help in the establishment of a fall run LCT. In addition, the fishway would provide the only access past Marble Bluff Dam in years when the lake level is low and it would increase the run of cui-ui in years when the lake level is high.

Action: As indicated in the response the district will revise the report to facilitate a better understanding of the project benefits and expand on the items mentioned in the discussion.

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