MIDDLE CREEK, LAKE
COUNTY, CALIFORNIA
FLOOD DAMAGE
REDUCTION AND ECOSYSTEM RESTORATION
FINAL INTEGRATED
FEASIBILITY REPORT AND
ENVIRONMENTAL
IMPACT STATEMENT/REPORT
SEPTEMBER 2002
HQUSACE POLICY
COMPLIANCE REVIEW TEAM ASSESSMENT
1. Reference CESPD-CM-P memorandum of 10 October 2002,
subject: Transmittal of Final Integrated Feasibility Report and EIS/EIR for the
Middle Creek, Lake County, California, Flood Damage Reduction and Ecosystem
Restoration Project.
2. HQUSACE
COMMENTS ON DRAFT FEASIBILITY REPORT AND EIS/EIR
a. OMRR&R Costs. The
district refers to OMRR&R costs being described in Appendix A, Basis of
Design, when it may be more appropriate for this to be in the Engineering
Appendix.
b.
Project Recommendations.
The selected plan description and discussions should contain a specific
description of the portion of the existing authorized project that is to be
deauthorized.
c. Consistency of Numbers. Page S-5 of the report summary states that Alternative 2 provides $280,000 in average annual benefits and other locations within the main report (page 6-2 and following) indicate benefits of $285,000. Page 6-3 of the main report indicates annual costs of $2,604,000 but Table 6-2 on the following page identifies the annual cost to be $2,609,000. Recommend the district do a scrub of the numbers in the report to insure consistency.
d. Net Benefits. The report summary was succinct and informative; however, paragraph S.8.1 could lead the reader to the conclusion that the district is recommending a project with negative net NED benefits; in fact, the report concludes that flood control is economically justified. Paragraphs S.8.2 and S.8.3 are similarly confusing. Recommend the district clarify by including information on costs allocated to flood control and the resulting positive NED net benefits.
e. Separable Costs Remaining Benefits (SCRB) Method. The district used the SCRB method to allocate joint costs to the 2 project purposes for Alternatives 2, 3, and 4. The SCRB method requires the identification of Alternative Costs for each of the project purposes. Once the Alternative Costs are identified, they are then used as the basis for determining the Separable Costs. With the exception of the Alternate cost for Flood Control for Alternative 2 (which is the cost of Alternative 5), it is unclear where the Alternate Costs came from. That makes it difficult to assess whether the analysis was done correctly. The district should include a more detailed discussion of the source of the Alternate Costs, show first and annualized costs for each in the report, and indicate how the numbers were used in the SCRB tables. A quick assessment of the tables provided in the report turned up some apparent discrepancies in the tables. The outcome did not impact the identification of the NED Alternative, Alternative 4.
District Response: The Least Cost Alternative Plans
were identified as the annual costs of both the Without Ecosystem Restoration
First Cost and the Without Nonstructural Flood Damage Reduction First
Cost. As explained in the text under
Variations, the Least Cost Alternative for Ecosystem Restoration was
Alternative 2 (minus cultural resources mitigation costs). The Least Cost Alternative for Flood Damage
Reduction was Alternative 2 First Costs minus restoration plantings cost and
the prorated 91 percent of PED and construction management costs. Since PED and Construction Management costs
were developed for a multi-purpose project, it was necessary to determine those
costs for a single purpose project. The
restoration costs were compared to the total construction costs and were
determined to be 9 percent of the total construction costs. The ratio was applied to PED and
Construction Management costs, resulting in single-purpose PED and Construction
Management costs being 91 percent of the multi-purpose PED and Construction Management
costs. Alternative 2 was selected since
it maximized NED benefits and was a cost-effective solution. The discussion in Section 6.2.3 has been
expanded to explain the source of the Alternate Costs. See pages 6-4 through 6-7 of the main
report.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is UNRESOLVED.
See paragraphs 3.e and 3.f, below.
f. Protection of Tribal Lands. The only alternative discussed in the report for the protection of Tribal lands was a ring levee. The 17 September 2001 PGM and district responses contain excellent information regarding the district’s efforts to determine the best manner to protect or otherwise address the tribal lands and associated issues. Clearly the district has evaluated the cost effectiveness and implementability of acquisition as an alternative measure. That information should be included and the analyses documented in the formulation section of the subject report.
g. Trade-off Analysis. The discussion provided in paragraph 6.5.2 regarding the “trade-off analysis” for selection of the NED/NER plan should be strengthened to remove any ambiguity concerning which plan should be selected.
“Alternative 2 provides an increase
of 521 AAHU’s over Alternative 4 while Alternative 4 provides an increase of
$7,000 net annual NED benefits. This
essentially is the trade-off between alternatives. A cost per habitat unit comparison shows that this difference
equates to $13 per AAHU. The subjective
value of a single AAHU is much greater than $13. The habitat value of the large number of AAHU’s gained in going
from Alternative 4 to Alternative 2 is worth the relatively small decrease in
NED benefits. Therefore, Alternative 2
was identified as the combined NED/NER plan.”
See page 6-19 of the main report.
HQUSACE Policy Compliance Review Team Final Assessment: The issue is UNRESOLVED. See paragraphs 3.e and 3.f, below.
h. Real Estate.
(1). Paragraph 7.1.1, page 7-1 (Main Report)
states that the project now includes a ring levee, drainage pipe and flap gate,
and a pump station. There was, however,
no statement regarding OMRR&R of these features by the non-Federal
sponsor. The final report should
clearly state this obligation in section 7.3.
The cost estimate should also be revised to include pump station costs.
District Response:
Concur. The cost estimate has been revised to include
costs of these features and the additional OMRR&R cost and
responsibility. Section 7.3 has been
revised to include these obligations. See
page 7-3 of the main report.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is unresolved. See comment 3.k, below.
(2). Page 7-2, Main Report, states "Property owners and residents would be compensated for ... cost of relocating outside the floodplain." The words "in accordance with the requirements of P.L. 91-646, as amended" should be added at the end of the sentence to avoid an overbroad expectation of payments.
(3). The first paragraph of numbered paragraph
7.4, Main Report, indicates that some of the 1,600 acres proposed for fee
acquisition in the Real Estate Plan (REP) is not required to implement the
restoration purposes of the project. It
also indicates that later analysis may show acquisition of some interest in
some of this acreage may be driven by takings implications. However, no detail is provided and no plan
presented. The paragraph, and the REP,
should be revised to describe what issues and acreage are at issue together
with an acceptable plan for resolving the outstanding issues consistent with
law and policy.
(4). Paragraph 8.3.2, page 8-2, Main Report, should identify what agency will serve as the non-Federal sponsor and comply with the list of requirements contained in this paragraph. REP statements in this regard should be reconciled.
(5). The project schedule for Project Cooperation
Agreement (PCA) execution and construction initiation contained in paragraph
8.5 conflict with those included in the REP.
The conflict should be reconciled.
i. Real Estate Plan.
(1). The second paragraph of numbered paragraph 1
of the REP should be revised to clearly describe what agency will serve as the
non-Federal sponsor for the PCA. Descriptions of the non-Federal sponsor
contained in other REP locations should be consistent with paragraph 1 (see
paragraphs 7, 10, and 11, and the Non-Federal Sponsor Assessment).
(2). Information on the availability of replacement housing should be added to paragraph 10.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is resolved.
(3). Paragraph 13 references a non-existent
exhibit. A map showing project features
(including the ring levee) should be added to the REP or the paragraph should
reference a location in the main report that contains such a map.
(4).
Paragraph 16 contains insufficient and conflicting information regarding
whether there is a need and responsibility to modify the Nice-Lucerne Road,
Highway 20, or the various utilities listed.
Because safety or other policy factors may drive the inclusion of the
proposed roadwork in the project rather than relocation concepts per se, it is
critical that the Corps make a final decision now on whether these items should
be classified as relocations.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is unresolved. See comments 3.a and 3.f,
below.
(5). The REP should be revised to describe what
acreage and interests are required to support the ring levee, drainage pipe,
and pump station. If the Tribe owns the
lands on which these features are located, the REP should also describe the
acquisition plan for such acreage and interests.
j. Middle Creek Restoration Project. Section 2.2.1, Middle Creek Restoration
Project, page 2-6, refers to a restoration project that will be constructed by
the Robinson Band of Pomo Indians. The
first sentence is not clear what the pronoun is referencing – the restoration
portion of the recommended project or something else. Suggest substituting “a” for “this”. The district should revise this sentence to clarify.
k. Future Without Project Conditions. Second paragraph, third line, delete “are”.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is resolved.
l. Adaptive
Management. The draft report does not appear to follow Corps policy for
monitoring and adaptive management, ER 1105-2-100, 3-5.b(8), page 3-25. Monitoring may be necessary to determine if
the predicted outputs are being achieved, not just to allow the non-Federal
sponsor and the public to comment on the post-construction requirements and
responsibilities as indicated in Appendix J.
Additionally, Corps policy has imposed time and cost constraints on
monitoring and adaptive management.
Cost shared post-implementation monitoring will rarely be required. If cost shared post implementation monitoring
is being considered, it must be clearly defined, justified, and the period of cost
shared monitoring shall not exceed five years following completion of
construction. The cost of monitoring
included in the total project cost and cost shared with the non-Federal sponsor
shall not exceed one percent of the total first cost of ecosystem restoration
features. The report should be revised
to clearly state the purpose for and the constraints on cost shared monitoring
and adaptive management.
District
Response: As stated in the Introduction,
the draft Monitoring and Adaptive Management Plan was included in the draft
FR/EIS/DEIR to allow the non-Federal sponsor and the public to comment on the
plan. The stated purpose of the plan is:
“. . . identifies and describes monitoring and adaptive
management features that would ensure the protection or restoration of
environmental resources present in the study area. This plan provides necessary actions and commitments to assure
the success of the restoration project.”
The District believes that this purpose is in full compliance with Corps
policy. However, the plan has been
revised to clearly state the cost and time limitations of Federal participation
in the monitoring and adaptive management and to clearly outline the
non-Federal sponsor’s responsibilities.
See pages 9 and 10 of Appendix J.
HQUSACE Policy Compliance Review Team Assessment: The issue remains UNRESOLVED; see 3.l,
below.
m. Federal Responsibilities. A list or statement of Federal
responsibilities is not required by law; its intent in any event is served by
the text of the entire report itself and making a separate listing is
redundant. However, including such a
list in close proximity to the list of non-Federal requirements is often
reassuring to the non-Federal interests.
Nonetheless, such list or statement should contain language which
indicates that by its listing it is not intended to imply the Government’s
commitment to construction of the project prior to authorization and
appropriation of funds by the Congress.
Section 8.3.1, Section 8.4, and Section 8.5 should be revised
accordingly.
District
Response:
All cited sections have been revised to state that the listing does not
imply the Government’s commitment to construction prior to authorization and
appropriation. See pages 8-1, 8-2,
and 8-4 of the main report.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is resolved.
n. Non-Federal Responsibilities. Current Federal law requires non-Federal
participation in the financing of water resource projects in accordance with
WRDA 1986, as amended, and requires that the non-Federal interest enter into
written agreements with the Secretary of the Army to furnish its required
cooperation for the project. A complete
and accurate list of local cooperation is required by Section 905 of WRDA 1986
and ER 1105-2-100. The report should
verify and specifically state that the flood damage reduction measures are
nonstructural, and remove 8.3.2a.(6) from the items of local cooperation. Further, the remaining items of local
cooperation should be revised as follows:
“p. Participate in
and comply with applicable Federal flood plain management and flood insurances
programs.”
“q. Agree that, as
between the Federal Government and the non-Federal sponsor, the non-Federal
sponsor shall be considered the operator of the project for the purpose of
CERCLA liability, and, to the maximum extent practicable, operate, maintain,
repair, replace, and rehabilitate the project in a manner that will not cause
liability to arise under CERCLA.”
“r. Inform affected
interests, at least annually, regarding the limitations of the protection
afforded by the project.”
District Response:
Concur. Item 8.3.2a
(6) has been deleted. The introduction
now states specifically that the flood damage reduction measures are
nonstructural. Items p, q, and r have
been added. See page 8-4 of the main
report.
HQUSACE Policy Compliance Review Team Final
Assessment: The issue is resolved.
o. Conclusions and Recommendation. When a project is authorized by Congress,
the recommendations contained in the feasibility report become the basis for
proceeding with the project as a Federal undertaking. Authorizing language normally refers to the recommendations of
the Chief of Engineers, which are derived from the recommendations of the
District Commander. Accordingly, the
wording of the recommendations, incorporated by reference in the authorizing
act, requires special attention. The
report’s recommendation section should be revised to adequately describe the
recommended plan for implementation, including any mitigation and list the
items of local cooperation requirements, prefaced by a statement that the
non-Federal sponsors shall, prior to implementation, agree to perform the
required items of cooperation.
3. HQUSACE
COMMENTS ON FINAL FEASIBILITY REPORT AND EIS/EIR
a. Justification for Project Features.
(1). Ring Levee. The report should document in more detail the purpose of, and justification for, the ring levee. Page S-2 states the following: “A ring levee would be constructed to provide an existing level of protection for the Tribal lands.” Page 3-9 states the following: “the ring levee would be constructed to the same height as the existing project levees plus three feet to account for settlement. The ring levee would be approximately 3,700 feet in length and is between 10-17 feet high depending upon ground elevation. A pump station would be constructed to provide drainage. No cost for this pump station has been included in the M-CACES cost estimate.” The report indicates that project area levees no longer function as designed due to subsidence. The annual exceedence probability is reported as 0.286, or 1 chance in 3.5 of flooding in any year. Verify that the proposed ring levee would not provide a greater level of protection to the Robinson Rancheria lands than is currently afforded by existing project levees. What are the without-project and with-project annual exceedence probabilities associated with flooding of the Tribal land in question? Show that the cost of any incremental flood damage reduction above existing conditions is incrementally justified. Further, any such incremental costs should be charged to the flood damage reduction project purpose. If not incrementally justified, provide other information in support of an exemption to policy: Is this feature required to cure impacts to the tribal lands that would be caused by the restoration project? Given the special status of the tribal lands, are there environmental justice considerations? How is the proposed pump station to be funded since it is not included in the project cost? The project cost estimate should be corrected as appropriate. Also see comment 4.i.
(2). Road Raisings. The
project proposal includes raising short segments of the Nice-Lucerne Cut-Off
Road and Highway 20. The economic
justification for these road raisings is not clearly documented in the report. It does not appear that this work would be
required to mitigate any induced flooding that would be caused by the proposed
restoration features. Provide
information as why the road raise features are needed to realize benefits of
the project proposal. See also comment 4.n.(6).
(3).
Modification of Footings on PG&E Transmission Towers. The report indicates that the footings of
the PG&E Transmission towers are currently 4 to 9 feet below the elevation
of the 100-year floodplain. The report
proposes that the footings of these transmission towers be raised and access to
the towers be provided via a pedestrian boardwalk. Document that this work is justified mitigation to cure impacts
of the restoration project. See also
comment 4.n.(6).
b. Economic Evaluation.
(1). Equivalent Annual Damages By Category. The estimates of without project damages and
with project benefits cannot be evaluated for reasonableness. Provide a listing of expected equivalent
annual damages by damage category: structures, contents, agriculture,
automobiles, roads, and emergency response, for evaluation and inclusion in the
final documentation package.
(2). Economics Appendix. Data shown in the economic appendix call to
question the validity of the economic evaluation.
(a) Agriculture Damages. Table 2a shows total acreage for potential
crop damages as 8,753. However, this
total is obtained by summing the number of acres that would be inundated by
floods of seven (7) distinct frequencies.
The total affected acreage cannot exceed that shown inundated by the
500-year frequency event, or 1,339 acres.
Based on the information provided in Table 2B, it appears that
agriculture damages should not exceed about $146,600 on an equivalent annual
basis. Verify that the estimate of
agriculture damages has not been over stated.
(b) Auto Damages. Table 3 suggests that “potential total auto damages” are
$1,247,000. However, it does not appear
that this number has been weighted by the probability of storm occurrence. It appears that auto damages should not
exceed about $33,700 on an equivalent annual basis. Verify that the estimate of auto damages has not been over
stated.
(c) Road Damages. Table 4 shows total potential roadway damages are
$1,114,000. Again, it does not appear
that road damages in Table 4 have been weighted by the probability of storm
occurrence. It appears that road
damages should not exceed about $30,500 on an equivalent annual basis. Verify that the estimate of road damages has
not been over stated.
(d) Emergency costs. Emergency costs (Table 5) appear to have
been treated similarly to auto and road damages. Verify that the estimate of emergency costs has not been over
stated.
(e) Table
6. This table shows that the
expected probability of flooding (expected annual excedence probability) in any
year associated with without project conditions is 0.286, or 1 chance in 3.5.
The last column of this table is labeled “Equivalent Year.” This heading should be deleted and replaced
with the more precise terminology: “1 in X Chance per Year.” Use of the “equivalent year” terminology invites misinterpretation and misuse
of the risk-based performance statistics; consequently, it should be
avoided.
c.
Displays. Provide project
displays that clearly show only those components (structures to be bought out,
etc.) included in the single-purpose flood damage reduction plan.
d.
Inconsistent Statements.
Paragraph S.5.5 Alternative 5 states the following;” Alternative 5
consists of measures 4, 5, and 6. This
is the non-structural alternative for flood damage reduction.” This statement is not understood. The report indicates that measure 4 “…
maximize flood flow residence time…” in the study area. Please include clarifying text as
appropriate.
e.
Separable Costs. The
report recommends Alternative 2 as the Combined NED/NER Plan for the Middle
Creek area. It is not clear whether the
recommended plan is a Combined NED/NER Plan or just an ecosystem restoration
plan with incidental flood damage reduction benefits. The information provided on page 6-5 of the report shows that
there are no separable costs associated with the non-structural flood damage
reduction features included in the plan.
If there are no separable costs, the flood damage reduction benefits are
incidental, thus the recommended plan is not a Combined NED/NER Plan and there
is no need for estimating separable costs and allocating costs for formulation
purposes. However, the estimates of
separable costs for flood damage reduction and ecosystem restoration are
questionable based on the information presented in the report. Responses to the following concerns will
help clarify the type of plan that is being recommended and the type of
analysis required.
(1). The recommended plan consists of a combination of six management measures (see Table 3-1). Four of these measures produce ecosystem restoration outputs (breaching the existing levee, planting native vegetation, creating islands and excavating sloughs, channels and ponds). Two of the measures produce flood damage reduction benefits relocating residents out of the floodplain and constructing new cross and ring levees). Ecosystem restoration measures cannot be implemented unless residents of the floodplain are relocated. The new cross and ring levees are apparently provided to protect against existing conditions flooding (see Page A-22). There is no reference in the report to the levees as mitigation features (for increased flooding due to breaching the existing levees) or as a dual-purpose feature, that is, protecting against existing floods and mitigating for increased flooding. The cross levees were eliminated from the description of the final recommended plan but no explanation for this decision was found in the report. The comments below assume that they are included in the recommended plan.
(2). Based on this information, the flood damage reduction plan (without ecosystem restoration) first cost should include the cost of relocation, the cross levees and the ring levee and associated PED and construction management costs. The cost of this plan was estimated by just excluding the cost of restoration plantings and associated PED and construction management) from the cost of the multipurpose project. This results in underestimating the separable costs for ecosystem restoration.
(3). On the other hand, the ecosystem restoration plan (without flood damage reduction) first costs should include the costs of breaching the levees, creating the islands, planting vegetation, relocation, creating the channels, sloughs and ponds and the associated PED and construction management costs. The costs for this plan are based on the assumption that all measures are required for ecosystem restoration. Unless the cross and ring levees are only needed for mitigation, the separable costs for flood damage reduction are underestimated.
(4). Issues to resolve:
(a). Clarify the purpose of the cross levees and ring levee.
(b). Clarify if the cross levee is or not included in the recommended plan and provide rationale.
(c). Revise estimate of separable costs, clearly defining the measures included in each plan without a given purpose and the rationale for including them.
f. Cost Allocation. The cost allocation procedure presented in the report has a major flaw. The least cost alternative used for allocating costs to ecosystem restoration is the alternative under evaluation. The district recognizes this limitation and requests an exception to the policy (paragraph 6, EC 1105-2-129) based on arguments that are not acceptable. The choice of least cost alternative is a critical parameter that has a significant impact in the final distribution of costs and, in this case, the selection of the recommended plan. The requirement to use an alternative different from the plan under evaluation is not subject to exceptions. Identify a least cost alternative different from the plan under consideration and revise the cost allocations accordingly.
g. The comparison of alternative plans shown on Page 6-18 would need to be revised in consistency with the resolution of the comments on separable costs and cost allocation (comments 4.e and 4.f above).
h. Non-Federal
Sponsor. Comment
responses, the main report, and the text of the Real Estate Plan (REP) all
express that Lake County will be the non-Federal sponsor for the project. However, the Capability Assessment included
in the REP indicates in one location that it will be the Lake County Flood
Control and Water Conservation District and, in another location, that it will
be that local District plus the State of California Reclamation Board. In its
response to this comment, Sacramento District should explain what political
entity will be the sponsor. If the
local district will be the sponsor, Sacramento District should explain the
authority of that district, not the County per se, to sponsor the project. Following such response and consensus on
this issue, the report including the REP should be revised accordingly.
i. Tribal Lands Issue. While the report indicates that the project
will go forward without including Tribal lands, it also indicates that there is
"still an unresolved concern regarding the [T]ribal lands." See
District Response to Comment 3.f.
Further, the report indicates that no option preferred by the Tribe
would be adversely affected by proceeding to authorization with the ring levee
proposal. See pp. 7-8 and p. S-19 of
the main report. Because the Tribe's
preferred option reportedly includes acquisition of additional lands with
abandonment of the ring levee proposal and includes raising its parking lot out
of the floodplain, there is concern as to whether or not the Corps would have
the authority to change the project after authorization unless those options
are also authorized. See Tribal Resolution
No. 8-17-02A included in Appendix I.
The district should explain its position followed by report changes
determined appropriate after discussions on this issue. The district’s Office of Counsel should provide
an opinion on this matter.
j. Added Acreage. The district's response to Comment 3.h.(3)
and the report on page 7-4 suggests that some of the 1600 acres proposed for
fee acquisition is not required to implement the project but is being acquired
for other reasons related to increased flooding. No helpful explanation is contained in the report; and the REP is
silent here. Prior to revising the
report (and REP as needed), the district should advise how many acres are in
this category of project LER and why it is being included.
k. Pump Station. Page 7-1 of the main report states that
"[n]o cost for this pump station has been included in the M-CACES cost
estimate." The district should
either provide an adequate reason for exclusion of such costs or revise the
report to include them.
l. Monitoring & Adaptive Management. Page 7-3 of the main report and page 10 of
Appendix J contain statements that would make the Corps responsible for
maintenance of non-structural project features after construction completion
but during the establishment period for plantings. These statements should be revised to state that all features
once constructed will be turned over to the Sponsor for its OMRR&R except
that the Government will continue to be responsible for monitoring and plant
replacement (with the costs of both activities being shared as part of total
project costs) during the defined establishment period. Further, the reference to "for the life
of the project" contained in the third sentence of the “Responsibilities”
section on page10 of Appendix J should be deleted and replaced with "for
so long as the project remains authorized". This sentence should also state that monitoring will continue on
an as needed basis, in accordance with the O&M manual, to assure that the
ecosystem restoration objectives are being met for as long as the project
remains authorized.
m. Borrow Sites. Page 1-2 of the "Addendum to
Geotechnical Report" included in Appendix A states that an unspecified
off-site borrow source "was assumed for the project construction cost
estimate." The REP is silent on
the need for a borrow area. The
district should advise how much material will be required and justify why
provision of borrow material should be viewed as a construction item rather
than requiring the Sponsor to provide a real estate interest to facilitate borrow.
n. Real Estate Plan (REP).
(1). The REP should be revised to identify the
sponsor of the existing project and, to the extent that portions of that
project will be required for the proposed project, identify the owner (and
interest) of the existing project lands, and the plan for the sponsor of the
proposed project to acquire such interests.
(2). Paragraph 5 states that there are "99
privately owned parcels" but "66 ownerships." Explain or revise as appropriate.
(3). The interest owned by the Drainage District
should be added to paragraph 8.
(4). To avoid claims arising out of
authorization, Table 10.1 should be revised to indicate that "Payment Per
Owner" is an estimate only.
(5). The fee acquisition proposal contained in
paragraph 15 should be revised to read:
",subject to existing easements that are determined to not be
inconsistent with the project purposes,".
(6). Utility/Facility Relocations.
(a). Nice-Luzerne Road: Page A-23 of Appendix A to the report
contains the following statements regarding the bridge over Rodman Slough on
Nice-Lucerne Cut-Off Road: "This
design requirement [ie/ a new bridge] addresses the restoration objective to
Reduce Flood Damages and Restore Fish and Wildlife Habitat." "The new bridge provides passage of
lake water both into and out of the restoration area. Currently, Nice-Luzerne Cut-Off Road is subject to flooding ...
. The bridge will provide a transfer of
water between the restoration area and reducing water level
elevations." Paragraph 16 of the
REP simply states that a new bridge "will be placed" and that the new
bridge will be located above the 100-year storm level. Further, the REP says the road, owned by
Lake County, "will have to be raised to avoid having a large dip between
bridges." The report must provide
persuasive reasoning why these work items are required for implementation of
the project. Following discussion on
these issues, the district should make appropriate revisions to the report and
the REP.
(b). Other Relocations Mentioned in the REP: Similar to the discussion for the
Nice-Luzerne Road, the REP contains no information regarding why any proposed
relocation work is required as a result of the project. Absent the requisite degree of impact on the
project or on the facility at issue, or a driving policy rationale, ownership
of a "compensable interest" is immaterial to inclusion of the work in
the project. The District must provide
persuasive reasoning why these work items are required for implementation of
the project. Following discussion of these issues, the District should make
appropriate revisions to the report and the REP.
JOHN W. BELLINGER
Policy
Compliance Review Manager
CECW-PC (10-1-7a) March 5, 2003
Middle Creek, Lake Co., Calif – Flood Damage Red. and Ecosystem Restoration
Final Feas. Report and FEIS
Legal Comments – from CECC-G
1. The report contains a description and discussion of the existing authorized project and states that the existing authorized project is to be deauthorized. It does not necessarily follow that authorization of the Middle Creek project in fact “deauthorizes” the existing flood control project. Nor is it readily apparent that a deauthorization is necessary. Instead, it seems as if the existing flood control project will be modified to provide nonstructural flood protection. While several sections of levee will be breached, residences will be relocated out of the floodplain to limit flood damages. In essence, the Corps is changing from structural to non-structural, but the Middle Creek project will still serve the same purpose of flood damage reduction. Recommend revising the report to change the terminology from de-authorizing the previous project to modify the project. In particular, revise Section 9 page S-17, Section 3.4.1 page 3-4, Section 3.6.2 page 3-9 and 3-12, Section 3.6.3 page 3-13, Section 3.6.4 page 3-15, and Section 7.1.1 page 7-1.
2. In various sections the report recommends monitoring in the project area; however there seems to be no connection to subsequent adaptive management. Please review and make sure that the recommended plan complies with Corps policy (ER 1165-2-501, EP 1165-2-502).
3. Section 6.2.2 Costs does not accurately describe the cost sharing for this project. Section 103 of WRDA 1986 as amended provides that at anytime during the construction of a project, if the Secretary determines that the costs of land, easements, rights-of-way, dredged material disposal areas, and relocations for the project, will exceed 35 percent, any additional costs for the project shall be a Federal responsibility and shall be contributed during construction as part of the Federal share. Section 103 does not provide for reimbursement. In addition, cultural resources will not be cost shared 100% Federal. Instead cultural resources data recovery costs in excess of 1 percent of the authorized total project costs will be cost shared.
4. Full resolution/compliance with all laws and regulations and Executive Orders must occur prior to approval of the report.
5. Recommend revising the first paragraph of section 8.4 as follows:
Should Congress authorize the Middle Creek Flood Damage Reduction and Ecosystem Restoration project and appropriate funds for the construction, Federal and non-Federal obligations and requirements will be further defined in a PMP and a Project Cooperation Agreement (PCA). The non-Federal funds will not need to be provided until after Congress has appropriated construction funds and the PCA is signed.
6. Section 8.5 the project schedule should be revised.