MIDDLE CREEK, LAKE COUNTY, CALIFORNIA
ECOSYSTEM RESTORATION FEASIBILITY STUDY
ALTERNATIVE FORMULATION BRIEFING
GUIDANCE MEMORANDUM
HQUSACE POLICY COMPLIANCE REVIEW TEAM ASSESSMENT OF
Table of Contents - Issues/Comments
Upland
Habitat
Removal of Residences
Project Impacts
Nonfederal Sponsor
Real Estate Plan
Planning Objectives
Flood Damage Reduction Justification
Tribal Lands Within Project Boundaries
Existing Flood Damage Reduction Project
Operations and Maintenance Plan
1. REFERENCE. CECW-AR
memo, dated 19 September 2001, subject: Middle
Creek Feasibility Report, California – Alternative Formulation Formulation Briefing
(AFB) Guidance Memorandum; CECW-PM memo,
dated 1 January 2002, subject: Middle Creek
Feasibility Report, California- Supplemental Guidance
2. District Responses to Policy Review Concerns.
Comment a. Upland Habitat. Paragraph 2.3.2, page 27, states that..."upland areas (approximately 480 ac) could be preserved in agricultural uses or could be enhanced as upland oak and grassland habitats." However, on page 28, fourth paragraph, it is stated that..." Approximately 1,700 acres of habitat would be restored including: (among others) Upland (grassland and oak woodland). The draft feasibility report needs to clearly lay out what will be done with the 480 acres of upland that are in the 1,700 acre study area.
District Response: Paragraph 1 under section 2.3.2 will be replaced with the following:
Alternative 2 would restore approximately 1,607 acres from Clear Lake to the 100-year flood plain (Figure 9), including approximately 381 acres of open water, 794 acres of wetland, and 189 acres of riparian, by breaching the existing levee system to create inlets that direct flows into the study area. In addition, 243 acres of upland would be restored from irrigated pasture, orchards and vineyards to oak woodland and native grassland. The upland habitat increases the value of adjacent wetland and riparian habitats by increasing the overall habitat diversity and providing additional shelter for wildlife during flood events. In order to restore oak woodland habitat, a percentage of the orchard trees would be removed, and trees such as valley oak, black oak, and blue oak would be planted along with shrubs such as coyote bush, wild rose, and toyon. Irrigated pasture would be restored to native grassland by removing nonnative vegetation through burning or other organic methods, followed by pilot plantings on native grasses.
Discussion: The district response resolves the concern.
Action: As discussed in the district response, the draft report will be revised to clearly define the acreage being restored.
District Response: The revised language can be found in section 3.6.2
on page 3-12 of the revised draft report.
Comment b. Consistency of Numbers. Similar to 7.a., above, the habitat restoration numbers given in paragraph 2.6.1, page 47, for Alternative 2 do not match the habitat restoration numbers given in paragraph 2.3.2, page 27, for that same alternative. Prior to sending out the draft feasibility report for public and agency review and comment, the district must assure that all habitat restoration numbers throughout the report for a given alternative are consistent.
District Response: Prior to sending out the draft feasibility report for public and agency review and comment, the district will ensure that all habitat restoration numbers throughout the report for a given alternative are consistent.
Discussion: The district response resolves the concern.
Action: As indicated in the district response, the draft feasibility report will be revised to ensure consistency in the habitat restoration numbers for a given alternative.
District Response: The report has been reviewed for consistence of
numbers.
Comment c. Removal of Residences. Under paragraph 2.6.1, "Ecosystem Restoration Benefits," it is stated on page 48 that Alternative 2 will remove 17 residences and their associated farmland from the 100-year floodplain. This removal of a significant number of residences and their farmland is not mentioned at all in paragraph 2.3.2, "Alternative 2 - Restore Robinson Lake to 100-Year Flood Plain Boundary." A discussion of the removal of these residences and whether or not the lands will be acquired from willing sellers or must be obtained through condemnation should be included in the description of Alternative 2.
District Response: The following discussion of the removal of the residences and farmland from the 100-year floodplain will be included in paragraphs 2.3.2. and 2.6.1: “Alternative 2 will remove 22 residences and 1,281 acres of farmland from the 100 year floodplain. The residences and farmland will predominately be bought from willing sellers. It is the goal to purchase all the properties from willing sellers, however some of the properties may have to be acquired by condemnation.”
Discussion: The district response resolves the concern.
Action: As indicated in the district response, the draft report will be revised to include revised discussion related to removal of residences and farmland from the 100-year floodplain.
District Response: The
report has been changed. Text is found on
page 3-12.
Comment d. Miscellaneous. It is not clear what the intention is of the last sentence on page 27 that states..."Additionally, 255 acres outside of the Alternative 2 boundary would remain designated for agriculture, residential and other uses." Is this area considered part of the recommended plan? What relationship does it have to Alternative 2?
District Response: This sentence will be deleted. The sentence has no relationship to Alternative 2. The 255 acres is adjacent to, but not part of, the recommended plan.
Discussion: The district response resolves this concern.
Action: The draft report will be revised as indicated in the district response.
District Response: The report has been clarified.
Comment e. Project Impacts. A summary of any adverse project impacts (environmental, economic, social) should be included in the main report. If there are no adverse impacts, this should be stated. At present, the main report contains only a description of the alternatives, their costs, and benefits.
District Response: Environmental and socioeconomic effects of the various alternatives will be fully evaluated in the environmental impact statement and environmental impact report (EIS/EIR) and summarized in the main feasibility report as appropriate. Any potential adverse effects would be addressed with mitigation measures to avoid, compensate, or reduce the effects to less than significant, if possible.
Discussion: The district response resolves this concern.
Action: The draft report and draft EIR/EIS will be revised to include a discussion and evaluation of project impacts as appropriate.
District Response: Chapter 5, Environmental Consequences discusses and evaluates the project impacts. A table has also been included summarizing the impacts.
Comment f. The Non-Federal Sponsor. Paragraph 1.1.6, "Local Support," implies but does not actually state that both the Lake County Flood Control and Water Conservation District and the State of California Reclamation Board will be the non-Federal cost sharing sponsor. On the other hand, paragraph 2.5.2, on page 45 under (3), states that...."a single sponsor is cost-sharing the entire project..." A separate paragraph, early in the main report, should clearly identify the non-Federal cost sharing partner(s) and make a brief statement of willingness and legal capability to cost share in the recommended plan.
District Response: There may be two sponsors for the project. Lake County Flood Control and Water Conservation District and the State of California Reclamation Board may both be sponsors. The sponsors are working out how they will each participate due to the lack of authority of the State of California Reclamation Board to participate in ecosystem restoration. The draft report will clearly identify whether there is one sponsor or two and contain information on the willingness and legal capability to cost share in the recommended plan by the sponsors.
Discussion: The district response resolves this concern.
Action: As indicated in the district response, the draft report will clearly identify whether there is one or two non-Federal sponsors and include information on the willingness and legal capability by the non-Federal sponsor(s) to cost share in the recommended plan.
District Response: There is one non-Federal sponsor, State of California, Department of Water Resources. They will have local sponsors.
Comment g. Real Estate Plan. The draft report must include a comprehensive real estate plan that complies with paragraph 16 of ER 405-1-12, Chapter 12, including copies of proposed non-standard estates, with justification, as well as information regarding LERRD for construction, operation and maintenance of the project.
District Response: The draft report will include a comprehensive real estate plan that complies with paragraph 16 of ER 405-1-12, Chapter 12, including copies of proposed non-standard estates, with justification, as well as information regarding LERRD for construction, operation and maintenance of the project.
Discussion: The district response resolves the concern.
Action: As indicated in the district response, the draft report will include a comprehensive real estate plan. The real estate plan will comply with paragraph 16 of ER 405-1-12, Chapter 12, including copies of proposed non-standard estates, with justification, as well as information regarding LERRD’s required for construction, operation and maintenance of the project. Prior to release of the draft report for public review, the district will coordinate the real estate plan with Headquarters real estate counterparts.
District Response:
The district real estate plan was
coordinated with HQUSACE in January 2002. This
response is the same for paragraph 6 and 7 of the supplemental AFB guidance memorandum.
Comment h. Planning Objectives. Section 2 of the AFB report identifies planning objectives (restore wetland habitat, restore wildlife and fish habitat, reduce flood risk, reduce levee maintenance cost and responsibility). Measures that are evaluated in Section 2 are judged against goals that include "improve water quality" in some cases. The Basis of Design in Appendix A lists the restoration goals and adds, "preserve existing resources, improve water quality, and enhance recreation and tourism". The planning goals and objectives should be consistent throughout the report and appendices. Including these extra objectives (or goals) in the Basis of Design might raise questions about the purpose of the project.
District Response: The report and appendices will be revised to list the project planning objectives as the following: restore wetland habitat, restore wildlife and fish habitat, reduce flood risk, reduce levee maintenance cost and responsibility. Water quality improvement and enhancement of recreation and tourism are incidental benefits of wetland restoration
Discussion: The district response resolves the concern.
Action: As indicated in the district response, the
draft report will be revised to present a consistent set of planning objectives.
District Response: The document has been reviewed to ensure consistency.
Comment i. Flood Damage Reduction Justification. The draft feasibility report must contain a full discussion of the incremental justification, along with a benefit to cost ratio, of the proposed actions for the flood damage reduction purpose.
District Response: A full discussion of the incremental justification will be provided in the draft report. Cost information is currently being calculated and will be used to develop the benefit cost ratio for the appropriate alternatives. The total project cost for each alternative will be presented using the appropriate federal/non-federal split of 65-35 for ecosystem restoration and 65-35 for non-structural flood damage reduction. The multi-purpose cost table will be updated based on the revised costs.
Discussion: The district response resolves the concern
Action: As indicated by the district, the draft report will be revised to include a full discussion of the incremental justification of the flood damage reduction features and present the cost sharing as appropriate for ecosystem restoration and non-structural flood damage reduction. The multi-purpose cost table will be updated based on the revised costs.
District Response: Section 6.5
details the discussion of the cost effectiveness and incremental analysis.
3. Concerns Raised at the AFB.
a. Tribal Lands Within Project Boundaries. The representative from the Bureau of Indian Affairs (BIA) raised a concern related to exchange of Native American lands required for the project. The concern is that lands required for the project have been in trust prior to 1988 and that any lands exchanged for the existing trust lands should have the same pre-1988 tribal trust designation.
Discussion: Approximately 40 acres of tribal trust lands are within the project boundaries. If the project were built, these lands would be subject to constant flooding. The district has determined that it would be more cost effective to acquire the lands in lieu of protecting them since protecting the lands would add significant costs to the project. The tribal lands have been held in trust since before 1988. The 1988 Indian Gaming Regulatory Act limits the use of trust lands acquired after 1988. Coordination with BIA and the tribe, Robinson Rancheria of Pomo Indians, is being accomplished. Both are willing to trade the land within the project boundaries for land, equal in value and acceptable to the tribe. Their preference, however, is land adjacent to their other property in the area. Additionally, the tribe wants to ensure that the current "trust status" is transferred to the land they will acquire through the exchange. The local sponsor is working to identify the lands and work with the tribe. The feasibility report will recommend that replacement lands be afforded all the same rights as the project acquired lands and that the tribal lands required for the proposed project be transferred from the Secretary of the Interior to the Secretary of the Army. The district will work with BIA to ensure its concern is appropriately addressed in the feasibility report. It is expected that status if the effect desired by BIA and the tribe is to be achieved through the Corps of Engineers project authorization process language authorizing the project will need to specifically make note of the exchanged lands and transfer of trust. The Report of the Chief of Engineers will also need to address this concern.
Subsequent to the AFB this issue was further coordinated in
Headquarters. Concern was raised with
practical issues associated with implementing the proposed Tibal lands
acquisition/exchange proposal, such as legal authority, who would be the acquiring agency,
and written expression of support. In this
regard, on 30 August 2001 a foncon was convened between Headquarters, Division and
District team members to further discuss the proposed Tribal lands acquisition/exchange
proposal. As a result of the 30 August 2001
foncon a series of questions were developed to help gain a better understanding of the
facts. These questions are provided as
attachment 1. Based on district responses to
these questions the Corps should have a better understanding of what needs to be
accomplished to successfully complete this report and ensure a reasonable prospect for
success.
Action: The district will address the questions provided in attachment 1 and coordinate its response with Headquarters, ATTN: CECW-PM., for review prior to release of the draft report. The district’s responses should conceptually address the issues raised in the attachment so that a clear plan for issue resolution emerges. Further, the district’s responses should include its proposal for what actions and draft report revisions must be accomplished prior to release of the draft report. Based on review of the district responses, a foncon will be convened to determine what additional actions, if any, need to be accomplished for release of the draft report and potentially to successfully complete this feasibility report. Conclusions and Headquarters guidance provided during the foncon will be documented in a supplemental AFB guidance memorandum.
District Response: Based on further discussions with HQUSACE in December 2001, the District with the sponsor have agreed to remove tribal trust lands from the project boundaries. Based on this decision, the responses to the attached memo have not changed since December 2002. The supplemental PGM memorandum also addressed the tribal trust issues. Again the trust lands are no longer part of the project and so the issues are not addressed further. This response answers paragraph 3, 4, 5,6, and 7.
b. Existing Flood Damage Reduction Project. The proposed non-structural flood damage reduction / ecosystem restoration project will require modification to the existing Corps of Engineers Middle Creek flood damage reduction project. The existing Middle Creek project was authorized by the Flood Control Act of 1954 and provides for protection to about 4000 acres of agricultural land. The existing project included enlargement of then existing levees and construction of new levees and channel improvements along Middle, Clover and Scott creeks.
Discussion: The AFB materials did not address the existing project and how it would be modified by the proposed nonstructural flood damage reduction / ecosystem restoration project. It was acknowledged that the feasibility report recommendation would have to address how the existing project would be modified or portions deauthorized.
Action: The feasibility report will need to be revised to clearly discuss the existing authorized flood damage reduction project and address in the report recommendation which components of the project need to be either deauthorized or modified as part of this proposed nonstructural flood damage reduction / ecosystem restoration project.
District Response: Chapter 2
in the draft feasibility report now includes a description of the existing Middle Creek
Project authorized in 1954. Implementation
of any of the nonstructural flood damage reduction/ecosystem restoration alternatives
would require deauthorization of that portion of the project levee below the confluence of
Middle and Scotts Creeks. This also includes
the portion of the project levee bordering Highline Slough in the interior of the study
area. Deauthorization of these levees would
be required since each of the alternatives proposes to breach the levees in several
locations. This requirement is discussed in
Chapters 2, 6, and 9. This addresses
paragraph 9 on the supplemental PGM.
c. Operations and Maintenance Plan. The AFB materials do not address an operation and maintenance plan for the proposed project. The concern being that the non-Federal project sponsor(s) do not fully understand the operations, maintenance, repair, replacement and rehabilitation (OMRR&R) responsibilities associated with the project.
Action: The district will revise the draft report to
provide the guidelines for an OMRR&R plan. The
plan should clearly identify OMRR&R requirements and identify party responsible for
performance.
District Response: A
discussion of OMRR&R requirements and parties responsible for performance has been
added to Chapter 7 of the draft report. Additionally,
details on OMRR&R tasks and a cost estimate are included in the Engineering Appendix (A). The
Engineering Appendix has specific OMRR&R recommendations to fully inform the
non-Federal sponsor of the requirements and their responsibilities. In response to additional concerns raised during
the AFB with regard to ongoing monitoring activities for mercury in the study area, the
District has prepared a Monitoring and Adaptive Management Plan (Appendix K). This plan specifies monitoring objectives for
vegetation planting and mercury, performance criteria, monitoring methods, and remedial
actions, as well as the responsible parties. During
the PED phase of the investigation, a more detailed OMRR&R plan would be developed in
conjunction with the non-Federal sponsor and the appropriate resource agencies. This addresses paragraph 8 of the supplemental
PGM.