CECW-PE
6 April 2000
UPPER NEWPORT BAY, CALIFORNIA
ECOSYSTEM RESTORATION FEASIBILITY STUDY
ALTERNATIVE FORMULATION BRIEFING
GUIDANCE MEMORANDUM
A.
POLICY REVIEW COMMENTS
1. Relationship to the Federal Project: The relationship of the proposed ecosystem
restoration features to the existing Federal navigation project in the Lower Newport Bay
should be discussed. ER 1105-2-100 states that priority
will be given to restoration where a Corps project contributed to the degradation of the
ecosystem and to modifications of existing Corps projects when such modifications are the
most cost effective means of restoring ecological resources. As noted above, the corps navigation project cited
as one of the authorities for this study does not extend into the reserve. Further, there is no indication that either the
navigation project has contributed to the degradation in the reserve (increased sediment
loads from upstream development is cited as the primary cause) or that modifying the
navigation project would restore ecological resources.
The proposed work is not a modification to the existing navigation project. The district must indicate how the proposed work
meets the requirements of ER 1105-2-100 and other Corps regulations and policies.
District Response:
The district concurs that the proposed work is not a modification to the existing
navigation project. It is our understanding
that the need to link an ecosystem restoration project to an existing Corps project is no
longer required, based on ER 1165-2-501 and EC 1105-2-210.
Discussion:
Although not a modification to the Federal navigation project in Lower Newport Bay,
it was noted that the ecosystem restoration projects could provide incidental benefits to
the navigation project. In view of the
ecosystem restoration project's potential to contain/reduce sediment transport to the
lower bay, there is a potential that future operation and maintenance dredging
requirements for the navigation project may be reduced.
It was agreed that due to the relative order of magnitude of this benefit that the
district will not attempt to quantify the dollar amount of the benefit. Instead, the district will only revise the report
to provide for a qualitative discussion of this incidental benefit to the navigation
project.
Required Action:
The district will revise the draft report to include a qualitative discussion of
the ecosystem restoration project's potential to reduce future maintenance dredging
requirements for the Federal navigation project.
2. Recreational Boating: It is not clear from the report whether or not
recreational boating and other recreational activities will be allowed in the restored
ecological reserve. Policy Guidance Letter
Number 59 specifies that recreation potential at an ecosystem restoration project may be
satisfied only to the extent that recreation does not diminish the ecosystem restoration
purpose. Where an ecosystem restoration
project provides critical habitat for a Federally listed threatened or endangered or
endangered species, recreation facilities at that project should be precluded in the
critical habitat and limited to only those facilities needed for minimum health and safety
and/or natural resources interpretation. The
district should clearly identify any proposed recreation features that are being
considered for the restoration area.
District Response:
The proposed work will not modify the recreational activities or propose any new
recreational features in the ecological reserve. The
managers of the reserve, the California Department of Fish and Game are working on a
management plan for the reserve and will specifically address allowable recreational
activities within the reserve. Recreational
boating will not be allowed in the restored ecological reserve. Even though the proposed Corps project does not
include any proposed recreation features, there is mention in the report of Orange
County’s ongoing construction of the Upper Newport Bay Interpretive Center. This center will offer recreational features such
as a revamped system of pedestrian trails. The
center itself will provide the general public with unique educational opportunities.
Discussion:
During the field visit of the project site it was noted that the ecosystem
restoration project could provide for additional recreation/educational opportunities
along the project's perimeter that could be compatible with both the ecosystem restoration
project and work of the Department of Fish and Game.
In this regard the non-Federal sponsor had indicated that they would like to
review, with the district, the potential for including recreation features to take
advantage of the education and recreation potential of the project. The non-Federal sponsor was advised that inclusion
of recreation features would need to be separately justified and cost shared on a 50/50
basis. Policy regarding inclusion of
recreation features as part of ecosystem restoration projects, including a checklist of
facilities which may be cost shared in is provided in ER 1165-2-501 and EP 1165-2-502.
Required Action:
The district will revise the report to reflect that the proposed project will not
adversely impact existing recreational activities or allow future recreational boating in
the reserve. In addition, the district will
review with the non-Federal sponsor the potential for including additional recreation
features in the project to take advantage of the education and recreation potential of the
project. Any recreation features included in
the project will be in accordance with ER 1165-2-501 and EP 1165-2-502.
3.
Watershed Influences:
Sediments that are filling in the habitats of the Upper Bay come from past and
continuing development in the surrounding heavily developed watershed. The Upper Newport Bay Ecosystem Restoration Study
does not identify any measures to prevent erosion and runoff of sediments in the
surrounding watershed. The Planning Guidance
Notebook, ER 1105-2-100, Chapter 2, specifies that a plan must reflect completeness and
efficiency, along with other planning evaluation criteria.
The district should evaluate the costs, effectiveness and impact of appropriate
sediment runoff prevention measures in the watershed, outside the ecosystem restoration
area, against the costs and impacts of dealing with the sediment through continued future
maintenance dredging, even though the local sponsor is required to perform all future
maintenance dredging.
District Response:
There are numerous sediment runoff prevention measures continuing in the watershed
(see the 208 Plan). The existing watershed
sediment control features include a series of foothill and in-channel basins. These basins are effective in trapping the more
coarse-grained material, but fine-grained sediments (mostly silts and clays) are still
transported through the watershed to Newport Bay by the typical short-duration, high
intensity southwestern storms. Work
continues in the watershed to improve the sediment trapping capabilities in compliance
with Sediment Total Maximum Daily Loads (TMDL) objectives.
These efforts are generally restricted to improvements in basin maintenance to
provide better storage capacity at the beginning of every storm season, and monitoring
activities. A Corps watershed feasibility
study was also initiated in 1999 to investigate problems in the watershed.
No matter
what is done within the watershed, fine sediments will still be delivered to the Bay. There would need to be a very large area set aside
within the watershed for detention and retention of storm water in order to trap the fine
sediments before entering the Bay. Unfortunately,
this land is not available where needed in this developed watershed. Therefore, the in-Bay basins are a key aspect of
the overall watershed sediment control plan. The
saltwater influence on fine particles (flocculation) results in fairly rapid settling.
Discussion: The effectiveness of the sediment
runoff prevention measures will be investigated as part of the Corps watershed feasibility
study. Therefore, the district will not
evaluate the costs of sediment runoff prevention measures in the watershed.
Required Action:
No further action is required.
4.
Items of Local Cooperation:
The items of local cooperation shown in the report are for a non-structural flood
control project. These should be changed to
reflect that the project is for ecosystem restoration.
Following are generic items of local cooperation for a typical ecosystem
restoration project that may be used as appropriate when preparing the draft feasibility
report:
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. 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.
e. Hold and save the Government free
from all damages arising for 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.
f. 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.
g. 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.
h. 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.
i. 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.
j.
Prevent future encroachments on project lands, easements, and rights-of-way which
might interfere with the proper functioning of the project.
k.
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 acct.
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
"Nondiscrim-ination on the Basis of Handicap in Programs and Activities Assisted or
Conducted by the Department of the Army."
l.
Provide 35 percent of that portion of total cultural resource preservation
mitigation and data recovery costs attributable to environmental restoration that are in
excess of one percent of the total amount authorized to be appropriated for environmental
restoration.
m. 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:
The draft report will be revised to reflect the items of local cooperation noted in
the comment.
Required Action:
The items of local cooperation will be revised in the main report to reflect the
recommended changes.
5.
Real Estate: As with any feasibility level decision document,
the draft and final feasibility reports must include a comprehensive Real Estate Plan
(REP) prepared in accordance with paragraph 12-16, and other relevant paragraphs, of ER
405-1-12. In drafting the REP, the district
should describe all lands required to implement the project including those owned in fee
by the identified non-Federal sponsor that will execute the Project Cooperation Agreement
(PCA). For all lands not owned by that
non-Federal sponsor, the REP must describe an acquisition plan including the nature of
rights that must be acquired. In addition,
the REP should discuss whether submerged lands required for the project must be acquired
or provided, or whether such acreage is available to the Federal government by virtue of
the navigation servitude. Regarding the
availability of the navigation servitude for this ecosystem restoration project, analysis
must include consideration of whether the project has the required nexus with navigation.
District Response:
The Real Estate Plan will be prepared in accordance with ER 405-1-12. The State of California owns the majority of the
lands required to implement the project. The
study sponsor, Orange County Public Facilities and Resources Department (OCPFRD) completed
a dredging project in the Upper Bay last year and is familiar with the agreement process
required to provide the LERRD’s required for the project. The acreage is not considered available to the
Federal government by virtue of the navigation servitude.
Discussion:
Since the County will be the non-Federal project sponsor but the lands required for
the project are owned by the State it was recognized that we would be dealing with
non-standard estates for the project. As such the justification for the non-standard estates will need to be
submitted to CERE-AP for review and approval.
Required Action:
The district will revise the real estate appendix to comply with ER 405-1-12, and
include a discussion of the rights that must be acquired to implement the plan. Unless the District reaches advance consensus with
HQUSACE, as coordinated through Division with CERE-A, on the nature and duration of a
proposed non-standard estate, the REP included in the draft report should not reflect
utilization of a specific non-standard estate. Instead,
the REP should reflect that analysis on this issue is ongoing with final decision to be
reached as part of the review and approval process for the feasibility report.
1.
Coordination with Federal Aviation Administration (FAA): In view of the proximity of John Wayne Airport to Upper Newport Bay and recent
FAA issues encountered on the Rio Salado, Arizona project, concern was raised with regards
to coordination with FAA and potential project impacts on John Wayne Airport. The district should ensure that the draft report
is fully coordinated with the regional office of the FAA and that the views of the FAA are
considered in plan selection.
District Response: The district will coordinate the draft report with
the regional office of FAA.
Required Action: As indicated in the response, the
district will coordinate the draft report with the regional office of FAA to determine if
FAA has any concerns with the proposed project.
2. Completing
the Draft Report: What alternative should
the district proceed with in the draft report.
Discussion: The non-Federal sponsors for the
project (Orange County) expressed support for Alternative 6. Alternative 6 provides a balance between
environmental restoration and sediment control. National
Environmental Restoration benefits are equal to the highest level when compared to the
other alternatives, maintenance intervals easily comply with the State's Total Maximum
Daily Load (TMDL) requirements, maintenance intervals meet non-Federal sponsor financing
requirements, and sediment storage capacity of both basins ensure less deposition in
habitat areas. The Regional Water Quality
Control Board (RWQCB) expressed support for
alternative 6, since alternative 6 provides sufficient sediment storage to meet the
State's TMDL objectives and 20 year O&M dredging interval target. Alternative 6, however, is not fully supported by
the US Fish and Wildlife Service (USFWS) since the district projects a 14-percent loss of
mudflat habitat under with- project conditions. The
USFWS has established an informal goal for limiting the loss of mudflat habitat in the
upper bay to 10-percent or less under with-project conditions. A proposal to add an additional alternative was
advanced by the district at the conference, but the consensus at the meeting was that it
should not be pursued, in large part because of the additional modeling that would be
required and the inability to reach a potential WRDA 2000 conditional authorization. Rather modifications to alternative 6 should be
evaluated. Ideas advanced at the meeting
included: 1) Work with the State to identify additional areas for potential mudflat
habitat, 2) refine calculations of habitat changes, 3) Look at the perimeter of the least
tern islands, and 4) Investigate minor modifications, including deepening, of the lower
sediment basin to increase mudflat habitat while not significantly reducing the sediment
trap capacity. The district will investigate
these potential ideas.
Even though
there are differences, all parties agreed that the district should complete the draft
report based on recommendation for alternative 6.
Concurrently, the district will continue to work with the non-Federal sponsor, the
RWQCB and USFWS to refine alternative 6 in an attempt to either address both the RWQCB and
USFWS constraints or lessen the differences. The
non-Federal sponsor, the RWQCB and USFWS representatives agreed to be flexible and work
with the district.
Required Action:
The draft report will be completed based on a recommendation for alternative 6. Concurrently the district will coordinate with the
non-Federal sponsor, RWQCB and USFWS to refine alternative 6 with a view towards
increasing mudflat habitat in the upper bay while addressing RWQCB TMDL objectives.