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TABLE OF CONTENTS

• Transmittal Letter
• Main Report Comments
• EIS Comments.
• Real Estate Comments
• Office of Counsel Comments
• Feasibility Review Conference Comments

CECW-PE 28 March 2000

1. MAIN REPORT COMMENTS

Comment a: As the report and EIS are finalized, the updated information cost apportionment, environmental requirements, non-Federal responsibilities and recommendations found in the 4 page addendum (No. 0001) to the draft report and DEIS needs to be included.

District Response: The final report and EIS will be revised to include the updated information found in the addendum.

Action: The final report and EIS will be revised to include the updated information found in the addendum.

Comment b: Portions of the proposed project lie within the channel and are susceptible to flood flows (see p. V-26). It is unclear what damages are expected to occur and under what circumstances these areas will need to be restored. This could affect the projects cost estimates and will certainly affect O&M costs for the non-Federal sponsor. This information needs to be added along with any projected costs.

District Response: To ensure that the non-Federal sponsor is fully cognizant of its project operation and maintenance (O&M) responsibilities, the district is reviewing the O&M performance criteria of the project. The district will revise the report to include additional information discussing what damages are expected to occur and under what circumstances these areas will need to be restored as part of O&M of the project. In addition, project costs will be reviewed to ensure that appropriate costs are included in the estimate for O&M of the project.

Action: As indicated in the response, the final report will be revised to clearly explain impact of flood flows on the project and resulting non-Federal project operation and maintenance responsibilities and associated costs.

Comment c: A review of the incremental cost analysis raises several concerns.

(1) The incremental analysis is done as if the Gila River Indian Community (GRIC) lands are part of the project. Due to the uncertainty of these lands being available for project use, an incremental analysis display without the elements on GRIC lands needs to be shown.

(2) A review of the incremental analysis shows a major jump in the last element of the proposed plan (i.e., pipeline and north riparian corridors). The incremental cost of this element is over three times that of the previous element. The inclusion of an element that has such a large increase in incremental cost requires strong justification. Further justification needs to be added. The district may want to look at the U.S. Fish and Wildlife Coordination Act Report which contains some of this justification.

(3) It is unclear whether the "pipeline and north riparian corridors" is truly an independent increment. It appears that the water that flows through these riparian corridors then drains into and supports the open water/marsh areas. If this is true, then the pipeline and north riparian corridors and the open water/marsh areas need to be combined into an increment and then the incremental analysis should be rerun.

District Response: The district has received a letter from the GRIC governing body expressing continued interest in continuing with the city of Phoenix on this project. The district will be meeting with the city of Phoenix and GRIC to determine if this GRIC endorsement is sufficient for the city of Phoenix to continue to sponsor the GRIC features of the project. The report will be revised to include conclusions of this meeting. If the city of Phoenix agrees to continue support for the GRIC features the district proposes to not show an incremental analysis of the GRIC features. Regarding the incremental analysis of the proposed pipeline and north riparian corridors the district has determined that these features are not independent of the proposed water/marsh areas. Water that flows through these riparian corridors are needed to support the open water/marsh areas. Thus, the analysis will be rerun to reflect the dependence of these features upon each other.

Action: The report will be revised as necessary to document the city of Phoenix's support or non-support for the GRIC features. If the city of Phoenix supports inclusion of the GRIC features into the overall plan then an incremental analysis of these features will not be required. The report will also be revised to document the rationale for the dependency of the open water/marsh features to the pipeline and north riparian corridor elements.

Comment d: A review of the monitoring plan revealed that several elements identified for monitoring are actually construction related items. For example, density of planting, plant spacing, and survival rates after one year are more appropriately handled within a planting contract and should be inspected as part of construction not as part of the monitoring program.

District Response: The district recognizes that the monitoring plan should not include cost related to project construction, as identified in the comment. The monitoring plan will be reviewed and revised to remove construction related elements.

Action: The district will review and revise the monitoring program as appropriate to ensure that only appropriate monitoring related costs are included.

Comment e: The monitoring program needs further justification. The restoration identified has already been proven in the existing demonstration project, is similar to what will be done on Rio Salado, and as the report identifies, the use of treated water is not new in restoration. The intent of current Corps policy is to monitor new technologies, unproven technologies, or ones that have high risk and uncertainty. Monitoring of proven technologies in similar situations is not supported.

District Response: Although similar to the Rio Salado project, the Rio Salado project has feature unique unto itself. Until the Rio Salado project is constructed, it is unknown if its monitoring program would be applicable to the Tres Rios project. When the Rio Salado project is completed, the district will review the monitoring program to determine its applicability to the Tres Rios project.

Action: No further action is required for the feasibility report.

Comment f: On page VII-2, PGL 59 should also be referenced in addition to PGL 36 for allowable recreation elements.

District Response: PGL 59 will be referenced on page VII-2 as noted.

Action: As indicated in the response PGL 59 will be referenced on page VII-2.

Comment g: On page VIII-2, it is stated that "The non-Federal sponsor accepts complete responsibility for additional recreational or flood control enhancements in the future that would allow the non-Federal sponsor to more fully realize the overall objectives of its long term planning efforts…" It should be noted that while the Corps does not want to unduly restrict the non-Federal sponsor’s efforts, those plans of the sponsor should not reduce the project outputs for which there is a Federal investment (see PGL 59). This approach is consistent with the position taken on Johnson Creek, Texas. An item of local cooperation was added for Johnson Creek and is proposed as well for this project (see comment 6.c.(22).

District Response: The district will include the proposed item of local cooperation identified in comment 6.c.(22) in the list of local cooperation items for the project.

Action: As indicated in the response the item of local cooperation identified in comment 6.c.(22) will be included in the list of local cooperation items for the Tres Rios project.

Comment h: The funds allocation table supplied as an addendum is not correct. The cost sharing for the flood control and restoration features needs to be shown separately and then added together to determine the cost sharing. As shown, the cost sharing errors favor the non-Federal sponsor by about $544,000.

District Response: The funds allocation table will be revised as noted to correctly display cost sharing for the project.

Action: As indicated in the response, the district will revise the funds allocation table to correctly display project cost sharing for the project.

Comment i: In the final report the District needs to provide additional information on the plan formulation for the levee alternatives. Is there any difference in the height of the levee for the three different levee alternatives? The draft report only identifies that the levee ranges 4 to 10 feet. If there is not much difference in height between the three alternatives then this should be identified and discussed in the report. The ITR (November 1999) comment #6 also brings up this issue.

District Response: For the 50, 100 and 500-year alternatives the difference in levee heights is approximately 1-foot. However, along the entire project reach the height of the levees range from 4 to 10 feet. To avoid confusion, the final report will be revised to ensure that similar terminology is used in the description of the alternatives.

Action: The final report will be revised to clearly explain the difference in levee heights for the different levee alternatives and ensure that similar terminology is used in the description of the alternatives.

Comment j: The interest rate used in the report to calculate annual damages and costs is 6-7/8 percent, however, the rate for FY 2000 is 6-5/8 percent. In the final report, the current interest rate should be used.

District Response: The report will be revised to reflect use of the current interest rate.

Action: As indicated in the response, the report will be revised to reflect use of the current interest rate.

Comment k: The project costs tables in the final report should comply with ER-1105-2-100 that states that the cost estimate in a feasibility report (decision document) will also be developed on an inflated (fully funded) dollar basis for cost sharing purposes and as the basis for the future project cooperation agreement.

District Response: The report will be revised to include the fully funded cost estimate for the project.

Action: The final report will include a discussion of the fully funded cost estimate for the project.

2. EIS COMMENTS.               Return to Specific Project Guidance            Return to Planning Guidance Page

Comment a: The information from the addendum needs to be input into the final EIS.

District Response: The EIS will be revised to incorporate the information contained in the addendum.

Action: As indicated in the response, the EIS will be revised to incorporate the information contained in the addendum.

.Comment b: Throughout the DEIS, the references to Section 404(r) requirements are not consistent with the guidance in ER 1105-2-100, Chapter 7 pages 7-75 & 7-76. At a minimum the EIS needs to include a 404(b)(1) analysis, clearly document when the 404(r) exemption criteria has been met, and to aid states and agencies in their review indicate whether a 404(r) exemption is being sought.

District Response: The district has coordinated with the State of Arizona and the state does not object to the Corps pursuing 404(r) exemption.

Action: The final report recommendations will be revised to clearly discuss that a Section 404 (r) exemption will be pursued.

Comment c: A comparison with the main report needs to be made to assure consistency in information. For example, the EIS refers to a 200 year flood (EIS p. 2-3) when the main report refers to a 500 year flood (page V-28) and the O&M requirement for sediment removal in the EIS is 71,000 cubic yards (page EIS 2-5) while the main report has it as 50,000 cubic yards (page VI-14).

District Response: The noted inconsistencies in the report have been corrected.

Action: No further action is required.

Comment d: To have full compliance with the Endangered Species Act, the EIS needs to get a letter from U.S. Fish and Wildlife Service that concurs in the district’s biological assessment or the district must enter into formal Section 7 consultation (see ER 1105-2-100, Chapter 7, section 7-33a)

District Response: The Fish and Wildlife Service (FWS) has provided the district with a draft letter of concurrence. This draft letter is included in the report. We are currently awaiting a final letter of concurrence from the FWS and will include it in the final report if received in time. If FWS's final letter is received subsequent to report finalization, the district will provide the letter to Headquarters under separate cover.

Action: The district should finalize the report documentation based on the FWS's draft letter of concurrence and provide the final letter of concurrence to Headquarters when available.

Comment e: It is noted that the draft Fish and Wildlife Coordination Act Report had a number of recommendations. To complete compliance with the Fish and Wildlife Coordination Act, the district needs to respond to each of the recommendations (see ER 1105-2-100, Chapter 7, paragraph 7-44(3)).

District Response: The district will be responding to all of the FWS's recommendations contained in the draft Coordination Act Report. The responses will be documented in the final report. If the final report is available, prior to finalization of the feasibility report, the district will respond to those concerns.

Action: As indicated in the response, the district will include responses to all of the FWS's recommendations in the final report.

3. REAL ESTATE COMMENTS       Return to Specific Project Guidance            Return to Planning Guidance Page

Comment a: The Real Estate Appendix (REA) should be revised as described below; unless otherwise indicated, references are to ER 405-1-12.

for the environmental restoration component of the project. However, the description of the environmental features contained in Chapter VI of the main report identifies only approximately 750 acres. The discrepancy should be explained and resolved.

tracts and ownerships to be acquired as well as to identify the extent of the current ownership interests of public agencies including the entities that will execute the PCA [see paragraph 12-16.c.(2)].

necessary to implement the project and revise paragraph 13 of the REA in accordance with the requirements of paragraph 12-16.c.(16). Because all facility relocation determinations must be ultimately supported by a final Attorney’s Opinion of Compensability (see para. 12-22), the last sentence of the italicized note in paragraph 13 of the REA should be deleted.

component of the project should be added to paragraph 15 of the REA.

REA as required by paragraph 12-16.c.(10). Regarding the reported LERRD value estimate, we note that the REA describes the "Total project Estimate" as being $10.5M but Table 7.1 of the main report includes over $19M as "Construction LERRDs." Discrepancies should be reconciled.

the REA as required by paragraphs 12-16.c.(13) and (15).

should be expanded as required by paragraph 12-16.c.(17).

District Response: The real estate appendix will be revised to address the items noted in the comment.

Action: As indicated in the response, the district will revise the real estate appendix to address the items noted in the comment.

.Comment b: Regarding GRIC lands, paragraph 9 of the REA includes the following statements: "A detailed study of land use ownership and historic documents including the original Treaty and all amendments will need to be done to ascertain Tribal ownership and treaty rights to the river and its use. There is much disagreement and several interpretations as to the actual location of the Reservation Boundary." In its response to this comment, the District should elaborate on the reasons why the study is needed, when it will be performed, and by whom. In addition, the real estate schedule required by comment 2.f, above, should include consideration of the time required for such a study.

District Response: The real estate appendix will be revised to elaborate on the reasons why the study is needed, when it will be performed, and by whom. Further, the real estate schedule required by comment 3a(6), above, will include consideration of the time required for such a study.

Action: The REA will be revised as indicated in the response.

Comment c: The Gross Appraisal noted in paragraph 6 of the REA must be approved by CERE-E due to its value amount. As of this date, it has not been received by CERE-E.

District Response: The Gross Appraisal will be provided to CERE-E for approval.

Action: The LER value estimates included in the final REA will be from the Gross Appraisal approved by CERE-E.

Comment d: Prior to submittal of the revised Feasibility Report, the District should finalize its proposal regarding including GRIC lands and the plan for provision of such lands and the revised REA should report thereon. Similarly, the participation of the Arizona Department of F&G and the local flood control district described in paragraph 10 of the REA should be finally determined with appropriate revisions made to the REA and implementation sections of the report.

District Response: The district will be coordinating with the city of Phoenix regarding inclusion of the GRIC lands in the project. The REA will be revised to reflect final decision on the GRIC lands. In addition, REA and final report will be revised accordingly to address the Arizona Department of F&G and the local flood control district participation in the project.

Action: The REA will be revised as indicated in the response.

Comment e: The items of local cooperation regarding off road vehicles and alcoholic beverages that are listed in Chapters VII and IX of the report are not typical requirements for a cost shared project. The District should justify inclusion or delete such items.

District: This item will be deleted from the list of items of local cooperation.

Action: As indicated in the response, this item will be deleted from the list of items of local cooperation.

4. OFFICE OF COUNSEL COMMENTS  Return to Specific Project Guidance            Return to Planning Guidance Page

Comment a. District legal review. There is no evidence that the subject report was certified for legal sufficiency by the District’s Office of Counsel, as required by EC 1165-2-203. The legal review and certification must be provided in order for Office of Counsel to complete review of the decision document.

District Response: A certification of legal review will be accomplished and provided with the final report package.

Action: A certification of legal review will be provided with the final report submittal package provided to Headquarters.

Comment b: Letter of intent, financial analysis, statement of financial capability. Part VIII.C. of the report indicate that a letter of intent from the sponsor and the District’s assessment of the sponsor’s financial capability were provided "under separate cover." These items were not received for review and need to be provided prior to ultimate approval of the report, as required by Section 905 of the Water Resources Development Act of 1986 ("[The report] shall demonstrate that States, other non-federal interests, and Federal agencies have been consulted in the development of the recommended plan . . .") and ER 1105-2-100 paras. 6-169 and 6-170.

District Response: The sponsor's letter of intent and the district’s assessment of the sponsor’s financial capability will be provided with the final report package submitted to Headquarters.

Action: As indicated in the response.

Comment c: Local cooperation. Parts VII.G and IX of the report contain incomplete descriptions of local cooperation requirements as required by Section 905 of the Water Resources Development Act of 1986 ("[The report] shall also include . . . a description of the Federal and non-Federal participation in such plan[.]") and ER 1105-2-100 para. 2-12.h.(1).(h). ("The report shall also include a discussion of LCA responsibilities."). See also EC 1165-2-204, dated 31 July 97, paragraph 7(c)(8) ("The decision document and decision document supplements, together, must identify the authority under which the project will be constructed, and: . . . (8) identify all project cooperation requirements for construction and OMRR&R."). The following items should be added:

(19) Participate in and comply with applicable Federal floodplain management and flood insurance programs.

(20) Do 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.

(21) Inform affected interests, at least annually, regarding the limitations of the projection afforded by the project.

(22) 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 and level of flood protection it affords, or hinder its operation and maintenance, or interfere with its proper functioning, such as any new development on project lands or the addition of facilities which would degrade the benefits of the project.

In addition, the following items should be revised as indicated:

(1)a. "Provide a minimum 5% cash contribution towards the total project costs allocated to flood control

(1)d. At the end of this item following "costs" add, "allocated to flood control and ecosystem restoration

Throughout the items of local cooperation the term "preconstruction engineering and design (PED)" should be changed to "design".

District Response: The items of local cooperation identified in the report will be revised to include the items identified in the comment. In addition, the report will be revised to include the revisions to items (1) a and (1) d and designation of "PED" to "design" noted in the comment.

Action: As indicated in the response.

5. Comment Raised During The FRC Return to Specific Project Guidance            Return to Planning Guidance Page

Comment a: The non-Federal sponsor's need to acquire a Section 404 permit for the O&M of the Federal project was discussed. At the Alternative Formulation Briefing the non-Federal sponsor noted concerned over the need to obtain 404 permits in the future once the project is completed and turned over to them for O&M. The non-Federal sponsor indicated that as they obtain 404 permits to O&M projects they are increasingly expected to mitigate for O&M activities. The non-Federal sponsor would like to eliminate/minimize the need for future 404 permitting actions associated with O&M of the completed project

Discussion: The district was advised that Headquarters was still investigating relief from the permitting requirement for the non-Federal sponsor. Subsequent to the teleconference it was determined at HQUSACE that the non-Federal sponsor will not need to obtain a Section 404 permit for future O&M activities if the following conditions are met: a) O&M activities and timing are clearly identified in the feasibility report and NEPA document; b) Any necessary mitigation for the O&M activities are part of the project and clearly identified in the feasibility report and NEPA document which will be further incorporated into an O&M manual; and c) The non-Federal sponsor carries out the O&M activities as specified in the O&M manual without deviation. Anytime during the life of the project should O&M requirements need to be modified or should there be a change in conditions not anticipated during this feasibility study, then an appropriate NEPA document will need to be prepared to modify the O&M manual and determine the need for any mitigation

Action: The district will revise the feasibility report and EIS to reflect the guidance presented in the discussion.

COMMENT b: A new policy with regard to participation in environmental education features is still under consideration.

Action: The feasibility report will be finalized in accordance with current policy with regard to participation in environmental educational features. Currently, only those features that are found in Policy Guidance Letter 59 and do not increase the overall Federal project cost by more than 10 percent will be recommended. All other features will be 100 percent non-Federal. HQUSACE will continue to work on development of the new policy with a view towards reaching resolution prior to completion of the Chief of Engineers Report at which time any adjustments to cost sharing can be made.