CECW-PC (10-1-7a) 8 April 2002

Planning Guidance>Specific Study Guidance>Index of Issues

PINE FLAT DAM FISH AND WILDLIFE HABITAT RESTORATION

FRESNO, CALIFORNIA

FINAL FEASIBILITY REPORT AND ENVIRONMENTAL IMPACT STATEMENT/

ENVIRONMENTAL IMPACT REPORT

DECEMBER 2001

DISTRICT RESPONSES TO

HQUSACE POLICY COMPLIANCE REVIEW TEAM’S FINAL ASSESSMENT

Table of Content for Issues/Comments
Basis of Design and Cost Estimate

Appendix E - Real Estate Plan
Byrd Slough Habitat Restoration Monitoring Plan
Project Life
OMRR&R
Certification of Legal Review
Nonfederal Sponsors
Items of Local Cooperation

1. The Pine Flat Dam Fish and Wildlife Habitat Restoration Final Feasibility Report and Environmental Impact Statement/Report was received at HQUSACE for policy compliance review on 26 March 2002 and 4 February 2002. The final report and the policy review compliance memorandum, dated 2 August 2001, subject: Pine Flat Dam Fish and Wildlife Habitat Restoration, Draft Feasibility Report and EIS; Review Team Assessment of District Responses to Policy Compliance Review Comments and Comments on the Draft Feasibility Report generally addressed issues raised in the Alternative Formulation Briefing Guidance Memorandum of 9 April 2001. The Alternative Formulation Briefing was held in Sacramento, California, on 28 March 2001. Additional clarification needs and issues raised by the policy compliance review team from review of the final report are presented in the comments below.

2. Issues raised during review of the AFB materials were satisfactorily resolved. A late comment that was raised and resolved during review of the draft but based on the AFB Compliance Memo follows, for the record.

Comment g. OMRR&R: Table VI-2 Cost Apportionment for Preferred Plan, shows $51,000 in estimated equivalent annual OMRR&R costs apportioned 65/35 between the Federal Government and non-Federal sponsor. This is incorrect. OMRR&R costs for habitat restoration projects are 100 percent non-Federal costs. It may be in the best interest of the Federal Government to perform operation, maintenance, repair, rehabilitation and replacement of the project. However, the cost of OMRR&R is a non-Federal responsibility. Further, while the estimate of the equivalent annual cost of OMRR&R may be $51,000, non-Federal interests will be responsible for the actual cost of operation, maintenance, repair, rehabilitation, and replacement of project features. Actual costs associated with future repair, rehabilitation, or replacement of the proposed dam intake structure components could be substantial. The non-Federal sponsor should be fully apprised of this financial responsibility. The draft report should be corrected.

District Response: Table VI-2 has been revised to indicate that the $51,000 is a non-Federal responsibility. In addition, KRCD has been fully appraised that the actual costs of future repair, rehabilitation, and replacement of project features of the proposed dam intake structure components would be a non-Federal responsibility.

Discussion: The response is satisfactory; the issue is resolved.

Required Action: As indicated in the district response. Further, to ensure that KRCD is fully informed of its’ OMRR&R responsibilities, the draft report should include a schedule of operation, maintenance, repair, rehabilitation, and replacement costs expected over the period of economic evaluation.

District Action: The OMRR&R responsibilities will be identified in the PMP prior to PED phase.

HQUSACE Review Team Assessment: The issue remains unresolved. The “District Action” stated above does not address the essential issue. The issue involves providing the prospective non-Federal with a reasonable assessment of the magnitude of potential future financial outlays to address operation, maintenance, repair, rehabilitation, and replacement of project features. The annualized estimate of discounted OMRR&R does not accomplish this requirement. The district should develop a schedule of expected operation, maintenance, repair, rehabilitation and replacement costs that includes each year of the economic life of the project. This schedule of expected expenditures would clearly show that in some years OMRR&R costs could be substantially less than the $51,000 annualized value. Conversely, the schedule of expenditures will show that, in some years, when rehabilitation or replacement of feature components is required, such costs will greatly exceed the $51,000 annualized estimate. This will allow the prospective non-Federal sponsor to properly plan for significant expected future financial outlays. Additionally, the schedule of expenditures should be footnoted to indicate that while cost estimates are based on a period of economic evaluation (economic life) of 50 years, actual project life (and OMRR&R) is perpetual.

District Response: After reviewing the MCACES cost estimate for the multilevel intake, the annual cost OMRR&R cost is $55,000 and not $51,000.

The OMRR&R cost for the multilevel intake structure consist of the following:

1. Replacement cost for nine motors every 20 years over the life of the project.

2. Rehabilitation and Repair cost for repainting/prime coating the structural members for rust control of all members every 10 years over the life of the project.

3. Maintenance cost will consist of lubrication of all 9 motors and gates. This will be done on an annual basis over the life of the project.

4. Semi-annual inspection of all nine motors and gates to ensure they are all in good working condition. The inspections should be completed before and after the flood season. The inspections will be done on a semi-annual basis of the life of the project.

5. Operation of gates – The gates will be operated over a 5-month period (between May, June, July, August and September) of every year over the life of the project.

OMRR&R Annual Cost

(Interest rate= 6 3/8%)

Items		Years
Replacement Cost	$3,000/motor * 9 motors = $27,000	20
Rehabilitation and Replace (Rust control)	$50,000	10
Maintenance & Semi-Annual Inspection	$10,000/year	50
Operation of Gates	$24,000/year	50
Present Worth Value	$812,300
OMRR&R Annual Cost	$54,300

This can be found on starting on page 59 of the final report.

HQUSACE Review Team Assessment: The district’s response and actions are satisfactory. The issue is resolved. The information above indicates that, stated in current dollars, annual expenditures may vary from a low of $34,000 to a high of $101,000. This more detailed estimate of annual expenditures may prove useful in the non-Federal sponsor’s fiscal planning. Please include a schedule of estimated annual expenditures in the final report.

3. COMMENTS ON THE DRAFT FEASIBILITY REPORT AND EIS

a. Appendix C – Basis of Design and Cost Estimate. Appendix C is missing from the draft report. The appendix C cover sheet states that it “will be provided as requested.” The completed Appendix C should be included in the final report.

District Response: Concur, will be provided with the final report.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

b. Appendix E – Real Estate Plan. The Real Estate Plan (REP) that is included as Appendix E in the report is well written and generally complies with the requirements contained in Chapter 12 to ER 405-1-12. However, the District should address the following two issues:

(1). Because of crediting implications, the “Total LERRDs” entry in Table 8.1 of the REP should not include the estimated amount of Federal administrative costs. The District should revise the table.

District Response: The estimated amount of Federal administrative costs has been broken out from the Total LERRDs in Table 8.1. into a separate table.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

(2). The assessment of the sponsor’s acquisition capability states that sponsor staff does not have sufficient real estate experience to meet its responsibilities. In its written response to this comment, the District should explain how the KRCD would acquire the required lands. The assessment also states that the land to be acquired is outside KRCD’s political boundaries. In its written response to this comment, the District should explain whether the KRCD has the legal authority to acquire and hold ownership of the land that it must provide for this project.

District Response: KRCD will contract with a legal firm to perform all necessary acquisition processes. A comment to this effect will be entered under II.c in the Assessment of Non-Federal Sponsors.

Required land for the project (Byrd Slough Habitat Restoration area) is located WITHIN the sponsor's political boundary. No land is required which is outside the political boundary. Will make change to REP.

KRCD has full legal authority, under any circumstances, to acquire and hold ownership of the land based on California State legislation.

Based on the response to the draft report by Fresno County Board of Supervisors and KRCD's negotiations with them, the local sponsor has determined that the land for Byrd Slough would be acquired from Fresno County using a conservation easement. This change will be reflected in both the Final Feasibility Report and the REP. KRCD will include appropriate language in their letter of intent to continue with the project. A copy of the proposed conservation easement will be included in the revised REP.

DISTRICT REVISED RESPONSE BASED ON CONFERENCE CALL 12/11/2001 WITH HQUSACE: The real estate plan and the document will be revised based on the guidance received. The attached MFR of the conference call provides the details.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

c. Byrd Slough Habitat Restoration Monitoring Plan. The following sentence is included in the brief description on page 70, main report, of the vegetation establishment period and monitoring plan: “At the end of the [3 to 5 year] establishment period, the project would be turned over to KRCD, who would maintain the restoration site for the life of the project.” Given that there are restoration features in addition to plantings, there is no apparent reason why commencement of OMRR&R by the Sponsor should be delayed until the end of the establishment period. Further, the OMRR&R duty should last for so long as the project remains authorized and not “for the life of the project.” Accordingly, the quoted sentence on page 70 should be deleted. In its place, the report should be modified to clearly describe what work the Government will perform as part of the establishment period and that the costs for such work will be shared with the Sponsor as part of total project costs; that the restoration area (or a functional portion thereof) will be “turned over” to the Sponsor for OMRR&R when the Government determines that the restoration features, or a functional portion thereof, are complete; that the establishment period will commence at the time that the planted area is turned over to the Sponsor for OMRR&R; and that the Sponsor will OMRR&R the area for so long as the project remains authorized.

District Response: The Corps would be responsible for the construction of the restoration site, which would include planting vegetation as well as signs, fencing, irrigation system, and habitat structures. The Corps would be required to monitor the restoration site for a consecutive 3-year period to ensure survival of the plantings. At the end of 3 years, the non-Federal sponsor would assume responsibility for all OMRR&R at the restoration site.

The language in the final Feasibility Report would be changed to reflect that OMRR&R would continue as long as the project remains authorized.

Once it is determined that the proposed Byrd Slough Restoration Site is the selected alternative, the detailed ecosystem restoration design and accompanying monitoring and maintenance plan will be developed. Once the detailed design is completed, costs associated with specific activities including the establishment period will be determined. All costs associated with the establishment period will be cost-shared with the non-Federal sponsor.

The Feasibility Report currently states, "at the end of the establishment period, the project would be turned over to KRCD."

The establishment period is the responsibility of the Federal Government. The establishment period begins with the initiation of restoration measures including vegetation planting, signs, fencing, irrigation systems, and habitat structures. All activities during the establishment period would be conducted by or under the supervision of the Federal Government and would continue for 3 consecutive years. Following the establishment period, the restoration site would be turned over to the non-Federal sponsor who would be responsible for OMRR&R as long as the project remains authorized. All costs associated with the establishment period will be cost-shared with the non-Federal sponsor.

HQUSACE Review Team Final Assessment: The issue is NOT RESOLVED. As requested, the District revised the report to indicate that the Sponsor will perform OMRR&R so long as the project remains authorized. However, the District's response to the comment, and the relevant revised paragraph on p.58 of the report, still can be construed to mean that OMRR&R of the restoration site will begin only after completion of the 3 year cost shared establishment period. The report should be revised (via replacement page or errata sheet) to clearly state that once the initial restoration features on the site, or a functional portion thereof, are completed, the Government will so notify the Sponsor who will then commence performance of its OMRR&R responsibilities except for those matters that will be performed by the Government as part of the 3 year cost-shared establishment period. At the close of the establishment period, the Sponsor's OMRR&R duties will include responsibilities for the plantings and other duties that the Government had performed as part of the establishment period.

DISTRICT RESPONSE: The final document will be changed with the replacement page 58. The document is attached (electronic file Pine Flat F&W response to 3-c.doc).

d. Project Life. The 2 tables on page 73, main report, contain footnote references to a “50-year project life”. Because the use of this term has created confusion in other projects on the duration of a sponsor’s OMRR&R responsibilities, suggest that these references be deleted and replaced with “50-year period of analysis.”

District Response: Concur, will be incorporated into final report.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

e. OMRR&R. The O&M section on page 72 of the main report states that the “non-Federal sponsor would be responsible for performing 100% of the annual operation, maintenance, repair, rehabilitation, and replacement (OMRR&R) to maintain improvements.” While the non-Federal sponsor will be responsible for payment of the OMRR&R costs for both components of the project, the performance of OMRR&R of the multilevel intake structure may not be practical given that dam operations otherwise are a Federal responsibility. The District should explain what OMRR&R duties are contemplated for the new dam structure and explain how such duties can best be accomplished. Revisions to the OMRR&R sections of the report should be revised in accordance with decisions reached on this issue.

District Response: The Local Sponsor (KRCD) will perform all the OMRR&R for the multilevel intake structure. The multilevel intake structure will manage the temperatures of the water that flow into the power plant that KRCD operates and maintains. It will be attached to the existing intake structure, which is the sole responsibility of the local sponsor. Dam operations are totally separate from the penstock intake structures. Operations of the multilevel intake structure would be coordinated according to the Operations and Maintenance Agreement between the COE and the local sponsor. This agreement will be revised upon completion of the multilevel intake structure. The report will be changed to reflect this.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

f. Certification of Legal Review. The report was submitted without apparent evidence of legal review by the district’s Office of Counsel, as required by policy (ER 1105-2-100). Certification of technical and legal review must accompany the report when submitted to HQUSACE for policy compliance review.

District Response: Concur, Certification of Legal Review will be submitted. A copy of the legal review for the draft report is attached.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

g. Non-Federal Sponsor. The report discuss that KRCD and KRWA will agree to jointly participate as project sponsors. The non-Federal project sponsor is required to agree to all local cooperation requirements, not just cost sharing. Current Corps of Engineers policy (ER 1105-2-100) places a high preference on implementing a project through a secure partnership with a single sponsor. While it is not uncommon for a sponsor to enter into cooperative arrangements or sub-agreements with other entities to enable it to provide all aspects of its required cooperation, the Corps normally prefers to avoid the additional burden of reviewing the capabilities and commitment of such third parties and relying upon cooperation among various parties during project implementation. If non-Federal interests desire multiple sponsorship, the District should request that such interests provide a compelling reason. If multiple sponsorship is deemed to be absolutely necessary, the report should document whether and in what manner any local cooperation requirements will be divided among multiple parties, including assignment of liability risk.

District Response: The non-Federal sponsor, KRCD supports the Recommended Plan (Alternative 4). KRCD may enter into additional agreements with other organizations to provide the necessary funding. KRCD will provide letters of support and intent. A financial capability plan will be included with the PCA agreement. Will revise report.

HQUSACE Review Team Final Assessment: The district’s response is satisfactory. The issue is resolved.

h. Items of Local Cooperation. The report contains an inaccurate and incomplete description of local cooperation requirements for the project. Following are “standard” items of local cooperation for an ecosystem restoration project. The district should review the list carefully, with the assistance of its Office of Counsel, and revise it as needed to address the specific needs of the Pine Flat Fish and Wildlife Habitat Restoration project including performance of OMRR&R of the intake structure.

Items of Local Cooperation:

a. Provide 35 percent of the separable project costs allocated to environmental restoration as further specified below:

(1) Enter into an agreement which provides, prior to execution of a project cooperation agreement for the project, 25 percent of design costs;

(2) Provide, during construction, any additional funds needed to cover the non-federal share of design costs;

(3) Provide all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas, and perform or assure the performance of all relocations determined by the Government to be necessary for the construction, operation, and maintenance of the project;

(4) Provide or pay to the Government the cost of providing all retaining dikes, wasteweirs, bulkheads, and embankments, including all monitoring features and stilling basins, that may be required at any dredged or excavated material disposal areas required for the construction, operation, and maintenance of the project; and

(5) Provide, during construction, any additional costs as necessary to make its total contribution equal to 35 percent of the separable project costs allocated to environmental restoration.

b. For so long as the project remains authorized, operate, maintain, repair, replace, and rehabilitate the completed project, or functional portion of the project, at no cost to the Government, in accordance with applicable Federal and State laws and any specific directions prescribed by the Government.

c. Give the Government a right to enter, at reasonable times and in a reasonable manner, upon land which the local sponsor owns or controls for access to the project for the purpose of inspection, and, if necessary, for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the project.

d. Assume responsibility for operating, maintaining, replacing, repairing, and rehabilitating (OMRR&R) the project or completed functional portions of the project, including mitigation features without cost to the Government, in a manner compatible with the project’s authorized purpose and in accordance with applicable Federal and State laws and specific directions prescribed by the Government in the OMRR&R manual and any subsequent amendments thereto.

e. Comply with Section 221 of Public Law 91-611, Flood Control Act of 1970, as amended, and Section 103 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, which provides that the Secretary of the Army shall not commence the construction of any water resources project or separable element thereof, until the non-Federal sponsor has entered into a written agreement to furnish its required cooperation for the project or separable element.

f. Hold and save the Government free from all damages arising from the construction, operation, maintenance, repair, replacement, and rehabilitation of the project and any project-related betterments, except for damages due to the fault or negligence of the Government or the Government's contractors.

g. Keep and maintain books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to the project to the extent and in such detail as will properly reflect total project costs.

h. Perform, or cause to be performed, any investigations for hazardous substances that are determined necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC 9601-9675, that may exist in, on, or under lands, easements or rights-of-way necessary for the construction, operation, and maintenance of the project; except that the non-Federal sponsor shall not perform such investigations on lands, easements, or rights-of-way that the Government determines to be subject to the navigation servitude without prior specific written direction by the Government.

i. Assume complete financial responsibility for all necessary cleanup and response costs of any CERCLA regulated materials located in, on, or under lands, easements, or rights-of-way that the Government determines necessary for the construction, operation, or maintenance of the project.

j. 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.

k. Prevent obstructions of or encroachments on the project (including prescribing and enforcing regulations to prevent such obstructions or encroachments) which might reduce the ecosystem restoration, hinder its operation and maintenance, or interfere with its proper function, such as any new development on project lands or the addition of facilities which would degrade the benefits of the project.

l. Comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public law 91-646, as amended by title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 CFR part 24, in acquiring lands, easements, and rights-of-way, and performing relocations for construction, operation, and maintenance of the project, and inform all affected persons of applicable benefits, policies, and procedures in connection with said act.

m. Comply with all applicable Federal and State laws and regulations, including Section 601 of the Civil Rights Act of 1964, Public Law 88-352, and Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army".

n. Provide the non-Federal share of that portion of the costs of mitigation and data recovery activities associated with historic preservation, that are in excess of 1 percent of the total amount authorized to be appropriated for the project, in accordance with the cost sharing provisions of the agreement;

o. Not use Federal funds to meet the non-Federal sponsor’s share of total project costs unless the Federal granting agency verifies in writing that the expenditure of such funds is authorized.

District Response: Will revise report.

HQUSACE Review Team Final Assessment: The issue is NOT RESOLVED. The list of non-Federal responsibilities contains statements that are redundant or may otherwise be unneeded. These are:

a. the first item on page 63 is a compressed version of what is stated again in standard form in "(3)" at the top of p. 64. The first item should be deleted.

b. the first bullet and the third bullet on p. 64 both deal with the Sponsor's OMRR&R duty. Although I note that both items were included in the list we previously forwarded to the District via our comments on the draft report, I suggest deletion of the third bullet.

c. the last bullet on the top of p. 66 appears to be a variation on the disposal area improvements theme covered generally in "(3)" and "(4)" at the top of p. 64. I don't object to including it if required for clarification purposes under the circumstances of this project but, if retained, it should be included as part of "(4)" or inserted as a new "(5)" on p. 64. Also, if this item is retained, the Chief's Report and the PCA must list it as well.

DISTRICT RESPONSE: The final document will be changed with the replacement pages63-66. The document is attached (electronic file Pine Flat F&W response to 3-h.doc).

4. Issues Identified During Review of the Final Feasibility Report and FEIS.

a. Section 4.6.3 on p.4-27 of EIS: Contrary to prior agreements reached on this concept, the last sentence of this section still calls for a "conservation easement." The sentence, and all other report sections on this topic, must be reconciled with the agreed upon approach as stated in the revised REP.

DISTRICT RESPONSE: The final EIS has been changed with the replacement page 4-27 and 4-28. The document is attached (electronic file: Pine Flat F&W response to 4-a.doc).

KENNETH HITCH

Chief, Planning Division