Return to Previous Page

A. Policy Issues Proposed by District:

(1) ISSUE: A good portion of recommended plan is on Gila River Indian Community (GRIC) Lands. No final decision has been made regarding co-sponsorship with city of Phoenix with regards to LERR. District proposed options: Phased project implementation or conditional authorization.

HQ RESPONSE: Page 2 of the Real Estate Appendix states that due to the unique aspects of law that govern Native American tribes and their lands, and their unique relationship with the Federal government, the GRIC must be the official sponsor for a project located on tribal lands. Paragraph 5 of the preliminary Real Estate Appendix (REA) clearly states that the GRIC will not convey required real property interests to the City in aid of project implementation. Therefore, the REA states, the GRIC must sign a PCA for any project that requires GRIC lands. Absent information as to other viable options, HQ concurs in this conclusion. If the GRIC governing body should agree to be a PCA signatory, it could be for the limited purpose of providing the required LER. If the GRIC does not want to sign a PCA for what would be a separable element on their lands, then the selected alternative would delete the project features that are on GRIC lands, namely, the south side water distribution system and salt cedar eradication, the project costs would be reduced. It is important to verify what level of interest the GRIC has in the project before proceeding to release of the draft report.

Discussion: Headquarters representatives indicated that a letter of intent from the project sponsors would be needed around the March 2000 time frame, when the feasibility study is scheduled to be completed. Mr. Lee Thompson, Director of the Land and Water Department for GRIC, believes that they can get a letter by that time. Mr. Thompson indicated that the GRIC would like to participate in the project, but that it just takes time to get through the GRIC decision process. The District will provide assistance to the GRIC in developing a letter of intent, which will indicate an understanding of the GRIC’s responsibilities, as opposed to the items of local cooperation that are required from the City of Phoenix. Two separate PCA agreements appear more expeditious at this time, but this will be discussed further between the District, GRIC and the City of Phoenix, and will be addressed in the final report.

Action Required: The district will proceed with the draft report on the basis that GRIC will provide a letter of intent to accompany the final report. The District will continue to work with all interests to obtain the appropriate letters of intent. If a letter of intent from the GRIC cannot be obtained for the final report, the District will not recommend inclusion of features on the GRIC lands. An alternative without features on the GRIC lands will be presented in draft feasibility report and draft NEPA documents released for public comment. The District will review the draft feasibility report and draft EIS to insure consistency in the alternative plans presented in the final array.

(2) ISSUE: Determination needed as to the portion of the recreation plan that is eligible for Federal cost sharing versus sponsor preferred features are 100% non-Federal cost.

HQ RESPONSE: Abide by PGL 59 and PGL 36 that identifies facilities eligible for cost sharing. In the report provide detailed documentation/justification for elements that are not on the checklists, but which sponsor/district feels are required and are integral to the project. Submit a request to ASA (CW) for a waiver to cost share in recreation facilities that are not eligible according to PGL 59 and PGL 36.

Discussion: See the discussion for Comment D.2).

Action Required: See the action required for Comment D.2).

(3) ISSUE: Net NED flood reduction benefits appear to be increasing at highest level of protection evaluated (500 year). NED may be close to 500-year level.

HQ RESPONSE: The report must contain verification of the estimated flood damages by identifying actual damages. Over 95 percent of the without project damages are attributed to structural inundation, while 3 percent are agricultural crop damage. Reference Economic Appendix, page 11, that states the 500-year floodplain was estimated based on topography and resulted in a larger number of structures than the 100 year floodplain. However damages to all the structures in the 500-year floodplain were computed based on the 100-year WSE. Table 5 identifies 611 structures in "the floodplain" assuming that this is the 500-year floodplain. How many structures are in the 100-year floodplain? Ordinarily the non-Federal sponsor’s primary interest is in participating in a project that provides a level of flood protection that will remove the need for flood insurance for existing development in the 100-year floodplain. Since the preliminary construction costs are $167,000 less for the 100-year levee, the non-federal sponsor may choose a plan less than the NED plan if the difference in the number of structures protected isn’t significant. The report needs to provide all of the data for both the 100 and 500-year levees for comparison purposes and explain the logic for the recommended plan.

Discussion: The City of Phoenix indicated they would be willing to support a flood control alternative that would provide a higher level of protection than the 100-year level that would meet FEMA requirements. The alternative levee heights in the pre-conference documentation use different confidence levels. Based on available information the district believes it is likely that the difference in levee height between the 100 and 500 year levels is about 6 inches and therefore it is likely the 500-year plan would be NED plan.

Action Required: Higher levees will be examined to optimize levee height and identify the NED Plan. Specifically, a levee to provide a 500-year level of protection at the same confidence level as the 100-year levee will be evaluated. This examination will also include considering any induced flooding on the south bank and downstream. The analysis of induced flooding will include consideration of the depth, frequency and duration of the flooding that will be considered in a real estate taking analysis, if required.

(4) ISSUE: The restoration features improve conveyance and incidentally reduce flood damages. Guidance is requested as to how to display these benefits, to reduce the cost of the restoration plan or use the benefits towards the b/c ratio for the whole project.

HQ RESPONSE: The flood control benefits should just be shown as incidental and then it should be pointed out this gives the ecosystem restoration an even better justification. For purposes of display only, not to reduce the cost for cost sharing purposes, the incidental flood reduction benefits could be used to reduce the costs of the restoration alternative by the amount of flood damages reduced for justification purposes.

Discussion: It was agreed that the incidental flood control benefits will be displayed in the report and that the district will also display how the costs per habitat unit are reduced when accounting for the incidental flood control benefits. The financial cost of the restoration plan will not, however, be reduced.

Action Required: The costs per habitat unit for the NER plan will be evaluated based on an adjustment of the total project cost using the incidental flood control benefits. The District will present this in the draft report for the comparison of costs per habitat unit. The district will clearly discuss how and why this was done in the report.

(5) ISSUE: Sponsor wants assurance that the success of the project in attracting T&E species will not preclude them from maintaining the project, i.e. sediment removal, vector control, etc.

HQ RESPONSE: Assurance will require close coordination with the U.S. Fish and Wildlife Service (USFWS) during the Section 7 consultation process. It will also necessitate that close attention is paid to identifying, describing, and coordinating the future O&M needs and the impacts with USFWS.

Discussion: The Fish and Wildlife Service representative believed that this was not to be considered in this document because it is future action. Based on further discussion, however, it was agreed that a detailed discussion of the O&M requirements will be included in the document, including Fish and Wildlife consultation. The without project condition implies that future conditions will be worse than at present. Therefore, the project will benefit.

Action Required: Operation and maintenance requirements and analysis of their impacts will be included in the draft report and draft EIS for the 50-year period of analysis. The district will define the frequency of maintenance, criteria for when maintenance will occur, disposal requirements, etc. The district needs to ensure that the NEPA document makes it clear that it will be used for both making the decision for authorization of the Federal Project, as well as for the issuance of the first 404 permit for O&M. The Section 7 consultation will include O&M requirements for the project. The biological assessment for the consultation will address the impacts of no maintenance on project benefits. The report will identify potential opportunities with the project such as fish stocking.

 Return to Previous Page

B. Study Authority: The Study Authority section of the main report does not completely and accurately cite the conditional authorization for the project enacted in Section 301(b)(2) of WRDA 96. The report only refers to the expansion of the project to include ecosystem restoration as a project purpose, with a total revised cost for the entire project of $17,500,000. This fails to note that the authorization was in fact conditional, based upon a completion of a report of the Corps of Engineers finding that the work is "technically sound, environmentally acceptable and economic, as applicable." Presumably, the Feasibility Report is in satisfaction of this requirement in law, but that is not evident from reading the report.

District Response: The conditional authorization was for a much different project. The report will use the current study resolution as the authority for the study. The feasibility report will be submitted to Congress for a new project authorization.

Discussion: In view of the fact that Congressional authorization will be required for the proposed project, it was agreed that the District will use the current study resolution as the authority for this study. It was also agreed that the existing authorized but unconstructed project should be recommended for deauthorization as part of the report recommendations.

Action Required: The report will present the current study resolution as the authority for this study. The report will present background on the authorized project and the report will recommend de-authorization of the authorized project.

C. Plan Formulation and Selection:

ecosystem restoration project and the existing contracts for water from the various sources. Further the main report shows the average water use from the various sources and not the contracted amount. However, it is unclear what figures were used to determine the amount of water available for restoration purposes. For example: Table 4-6 page IV-13 in the report shows that for 1997, the Buckeye Irrigation Company diverts over 3x their contracted water allocation. Hence to comply with the criteria for plan formulation in ER 1105-2-100, paragraph 5-7b., the report should use a reasoned worse case scenario for water availability to ensure the project is viable.

District Response: All of the commitments in existing contracts were included in the determination of the water that would be available for the restoration project. The Buckeye Irrigation Company has surface water rights to water in the river, beyond that which is under contract. These waters are taken from the river downstream from the proposed project.

Discussion: Mr. Paul Kinsella from the City of Phoenix discussed that the water is owned by SROG (Multi-City Sub-Regional Operating Group), which includes the Cities of Phoenix, Tempe, Mesa, Glendale, Scottsdale, and Youngtown. SROG owns the effluent water before it is discharged into the river and it is therefore available to the project. Only after it is discharged into the river does it become adjudicated by State water rights law. The Buckeye Irrigation Company has the primary water right to surface water in the river which are taken from below the proposed project. This is different from the water that the Buckeye Irrigation Company has under contract.

Action Required: The report will clarify the issues of water usage and water rights, to demonstrate that sufficient water is available for the project. The district will ensure that volume/flow rate units are consistent throughout the report.

the feasibility of the project. While the report identified the loss economic benefits of the water, it did not identify any potential costs for purchase of downstream water rights, if any exists. While any such costs would be a state responsibility, they would still figure into the overall economic justification for the project. To comply with the criteria for plan formulation in ER 1105-2-100, paragraph 5-7b., the non-federal sponsor should provide an analysis of this situation for inclusion into the main report and project justification.

District Response: As indicated above, the effluent water is owned by SROG and no downstream water rights are required for the implementation of the proposed project.

Discussion: As indicated above, the City’s representative explained that water is conveyed to downstream water rights users through the river and that SROG has all water rights to effluent water until it is discharged into the river, where it becomes adjudicated by State water rights law.

Action Required: The report will include discussions explaining that SROG has all water rights to effluent water until it is discharged into the river, where it becomes adjudicated by State water rights law. The report should note that there are no downstream impacts to water rights.

3) ER 1165-2-501 states that the first step in an analysis is to identify

plans that represent a ‘cost effective" means of addressing the restoration problem thereby identifying the least costly plans providing alternative levels of outputs. The report identifies an initial comparison of plans 1 through 5. This comparison should be displayed in the report. Preliminary construction costs for the remaining Plans 3 and 4 were used in the further analysis. Why were alternatives 1, 2 and 5 eliminated? An explanation should be provided in the report.

District Response: Several pages were missing from the pre-conference documentation that explained the screening of alternatives. This information will be included in the draft report.

Discussion: It was agreed that the district should make sure the goals and targets of the alternatives are clear and contributions to the goals discussed.

Action Required: Appropriate information will be presented in the draft report to present the screening process that leads to the final plans.

report. On page 23 Table 17 for Alternative 3.5, the increased HUs in target year 50 (actually target year 30 held constant up to yr. 50) is 334 HUs. Degradation prevention benefits of 493 are added to come up with a total of 827 HUs with an average cost of $101,091 per HU. The benefits to adjacent vegetation by preventing degradation are 59 percent of the total increase in HUs. In Appendix G, the table identifying the incremental cost for Alt 3.5 in target year 50, shows 344 HUs assigned an average cost of $245,874 per HU and an incremental cost of 942,055 per HU. On page 26 of the Economic Appendix, Table 19 demonstrates that for Alternative 3.5 the average annual HUs over the 50 year evaluation period are 623 HU and after applying the annualized cost, the result is an average annual cost per HU of $13,568. The numbers should all be put into the same terms so the various plans and can be directly compared and a reasoned choice among the plans made.

District Response: The report will be reviewed for consistency. Graphs and charts will be presented to clarify the information.

Discussion: Typographical errors and an inconsistency regarding how the elimination of future degradation was included in the analysis led to confusion. The district clarified that the cost of the restoration would be about $130,000 per habitat unit.

Action Required: The district will revise the report to present a clearer presentation of the costs per habitat unit. The district will make sure there is consistency when using annual and total costs. The report will show the timeframe for the increases in habitat units, to provide a better understanding of the annual estimates.

5) In Appendix B Hydraulics, page 19, paragraph 116 states that since the plan with a levee component increases the water surface above the existing 100-year water surface at some locations, a levee on the south side may be needed for mitigation. The AFB material needs to identify the potential need for mitigation and how it will be addressed in the draft report. Levees on both sides of the river may be evaluated as a single unit to prevent the induced damages or the value of the induced damages may be added to the north levee costs and thereby reduce the net benefits.

District Response: The district is addressing induced damages and the draft report will include any required mitigation associated with the proposed flood control improvements.

Discussion: As indicated above, higher levees will be examined to identify the NED Plan. This examination will include consideration of induced flooding.

Action Required: The district will address any induced damages and required mitigation associated with the Corps proposed flood control improvements. Any hydraulic mitigation would need to be justified or supported by a taking analysis.

6) The Real Estate Appendix (page 4) states that previous studies in the

Holly Acres area failed to identify a cost-effective flood control solution. Since the basis for determination of existing damages is losses actually sustained in historic floods, the dates and actual damage estimates for type of property and activity should be identified in the report. What changes in existing conditions have occurred or what circumstances in the study area have contributed to the increase in damage reduction to currently justify the costs for the 50-year, 100-year and 500-year levee? Were non-structural alternatives considered in the formulation of flood damage reduction measures as required by ER 1105-2-100, Chapter 4?

District Response: The previous studies that are referenced were an early reconnaissance study that was based on a cursory evaluation, using existing information at the time. The evaluations in the pre-conference documentation are based on current and much more detailed studies.

Discussion: The district explained that changes from the previous reconnaissance analysis, reflecting current hydrologic, hydraulic and land uses, support the present findings. An analysis of non-structural measures was conducted by a consultant, but the results were not included in the pre-conference documentation.

Action Required: The statement on previous studies will be removed from real estate appendix. The results of the non-structural analysis will also be summarized in the main report. Additional information to support historic damages, including any available photographs will be included in the report.

7) On pages IV-41&42 and V-19 a without project projection is that the discharge from the 91^st Avenue wastewater treatment plant would go to zero. This assumption is important to the justification of the project and needs to be verified. It is noted that one of the main purposes of the ecosystem restoration project is to increase habitat for endangered species. Hence if there are endangered species dependent on the vegetation within the area which is supported by these waste water discharges, is it reasonable to assume that overtime the endangered species would be lost. This potentially could be construed as a taking under the Endangered Species Act. Close coordination with both the U.S. Fish and Wildlife Service and Arizona Game and Fish needs to occur. The State may be inclined to mandate certain amounts of downstream water for habitat protection regardless of whether endangered species are present or not.

District Response: As indicated above, the effluent from the wastewater treatment plant is owned by SROG. The decrease in effluent to the river is consistent with all approved plans for the operation of the 91^st Avenue Wastewater Treatment Plant.

Discussion: The district noted that this issue had been discussed at previous division/district milestone conferences. The City of Phoenix indicated that anticipated demand for water will impact the amount available to the river in the future. There is increasing pressure for the purchase of available effluent and as the price increases, sales of effluent will most likely increase. There is no State authority to mandate water to the river. No changes to report are required.

Action Required: No further action is required.

8) The existing local levee project was designed to provide 100-year protection in conjunction with a proposed BOR dam that was never constructed. The levee can accommodate 115,000 cfs of flow with 3-feet of freeboard. Page 9 of the Hydraulics Appendix B, paragraph 48 indicates that the existing levee may need to be raised. Has the evaluation of the without project condition determined the level where the existing levee is most likely to fail since this issue may have a significant effect on the benefits? The report needs to include an analysis of the reliability, physical effectiveness and information regarding the performance record of the existing levee (Holly Acres). Guidance on reliability determination is available in ETL 1110-2-238 dated 22 March 1993.

District Response: The existing levee that is adjacent to the Holly Acres subdivision is not subject to over-topping as it is often outflanked by floodwaters. It is therefore not a factor in the determination of benefits.

Discussion: The district explained that the existing levee is outflanked by the 100-year event as well as lower events. The proposed levee improvements would extend the levee to eliminate this problem. Since the existing levee is outflanked the levee would not fail from overtopping flood flows. Based on these factors, the reliability analysis of the existing structure is not required.

Action Required: The report will explain how the 100-year event and lower events outflank the existing levee and describe the functional limits of the existing levee.

 Return to Previous Page

1) The stage set in the executive summary for the recreation plan is inconsistent with the recommended plan. On page ii of the executive summary it is stated: "The non-federal sponsors have also expressed a desire to increase the passive recreation opportunities incidental to the restoration effort within the study area." and "The selected recreation plan intends to create a wide variety of austere and passive means to enjoy the resource,…" A clear statement of the goals and objectives of the non-federal sponsor should be displayed.

District Response, Discussion and Action Required: The district will clearly identify the City’s goals for recreation in the draft report.

2) The recreation plan identified exceeds the 10% rule that is included in both PGL 36 and PGL 59. In addition there are numerous proposed recreation features (e.g., visitor centers, demonstration gardens, class rooms, and interpretive centers) that are not contained in the list of cost sharable items in the two PGLs. While there may be some change to the administration's view on recreation, there is no discussion about why an exception to the current policy should be granted. Deviation from this rule requires approval from the Assistant Secretary of the Army (Civil Works). Additionally, economic justification of the recreation component has not been demonstrated in the report.

District Response: The present plan includes facilities for both recreation and environmental education. If the separable facilities that are associated with environmental education are separated from the recreation plan, then the costs of the recreation facilities would likely be below the 10% limit. The district has used a method of assessing the relative value of the different educational facilities but does not have a method of comparing these values to dollar costs.

Discussion: Since estimated annual visits are expected to be less than 750,000, the unit day value method will be used to define the benefits of recreation facilities. At this time there is no established policy regarding the cost sharing in separable facilities that are specifically identified for environmental education. The District did point out that pursuant to Executive Order 12996, dated 25 March 1996, subject: Management and General Public Use of the National Wildlife Refuge System, the Secretary of the Interior is directed to recognize compatible wildlife dependant activities, including environmental education and interpretation as priority general public uses of the refuge system through which the public can develop an appreciation for fish and wildlife. This would seem to indicate that environmental education is an administration priority and should be considered independent of recreation. Headquarters representatives agreed to review the Corps policy in view of the Executive Order and provide guidance. In order to review the policy, the District and the City will review the plan and specifically identify those separable facilities that are for environmental education. The district is advised that exceptions to the approved recreation facilities, which may be cost-shared, must be fully justified and approved by CECW-P prior to submitting the project report

Action Required. Upon receipt of the breakout of recreation and education facilities, HQUSACE will review the Corps policy on environmental education features and provide guidance as required. Until this policy is reviewed, the district will follow recreation cost sharing policy contained in Policy Guidance Letter No. 59 Recreation Development at Ecosystem Restoration Projects, which permits cost-shared recreation facilities to be added to take advantage of the education and recreation potential of the ecosystem restoration project.

3) In accordance with Section 928 of WRDA 86, a report for a project that has recreation benefits will include a brief description of the competing facilities and their existing and expected future use, with and without the proposed recreation project. ER 1105-2-100 2-12. h. (1)(e) states that for clarity and ease of understanding a tabular display of the facilities with uses by categories is desirable.

District Response: A brief description of the competing facilities and their use will be included in the draft report.

Discussion: The information requested in the comment was included in the Rio Salado feasibility report and will form a basis for responding to the comment.

Action Required: A brief description of the competing recreation facilities and their use will be included in the draft report.

4) There is a concern about the extent, as well as, the intensity of the recreation being proposed. A careful evaluation needs to consider whether the proposed recreation plan may overwhelm the ecosystem restoration benefits. In an area 9.2 miles long and 1mile wide there is a plan for 3 interpretative centers, 3 visitor centers, 10 restrooms, 10 large kiosks, 34.8 miles of stabilized routes, 250 parking spaces, demonstration gardens, research areas, project visitation of about 500,000 during both day and evening, etc. Many of these activities could easily impact on the wildlife for which the project is formulated, especially endangered species.

District Response: The recreation plan will be reviewed to insure that it will not significantly impact the resources for which the project is formulated.

Discussion: The Headquarters representatives reiterated their concern with the extent of recreation facilities proposed and the potential impact on the restored ecosystem. The District will avoid any significant adverse impacts. The assessment of impacts will be based on experience and coordination with the sponsor and resources agencies. The CAR should address these issues as well. GRIC representatives expressed concern with potential impacts recreation facilities may have on the GRIC. The GRIC would be interested in supporting recreation features but would like to have a better evaluation of adverse impacts, such as infrastructure issues and law enforcement. In this regard coordination with GRIC is essential to make sure issues are identified and appropriate actions are taken. The coordination of future design activities with the GRIC will specifically be included in the Project Management Plan.

Action Required: The District and the City will critically review the scope of the proposed $14 million recreational/educational development. The draft report will identify any adverse impacts of recreational activities on the restored habitat. The district will coordinate and address other impacts of recreational use such as safety and noise on the GRIC.

5) Recreational demand is based on national standards that have been set for various types of recreation. While this is a good place to begin, the Phoenix area is not typical of the nation. The climate and the age distribution could greatly affect the demand. Verification of the appropriateness of the national standards needs to be done.

District Response: Verification of the national standards will be included in the draft report.

Discussion: Representatives from the City of Phoenix indicated national standards are generally applicable. The City will provide additional information to support the use of the national standards.

Action Required. Rationale for the use of the national standards for recreational use will be presented in the draft report.

6) On page 5 of Appendix H it is noted that a service road is included in the recreation plan. While the service road will certainly provide recreational opportunities, its intended purpose is not associated with recreation and the cost should not be included in the recreation costs.

District Response, Discussion and Action Required: The cost of the service road will appropriately be included in primary construction costs for the restoration purpose.

1) It is noted that the projected cost of this project ($102,644,000) is approximately six times the authorized amount. Accordingly, the cost appears to exceed the Section 902 project limit. While one may presume this from reading the report, since it proposes submission to Congress and authorization, exceeding the 902 cost cap is an important fact that the Corps should not ignore in the report. The Section 902 analysis should also be included, as well as an explanation as to why the project cost exceeds the 902 limit by such a degree.

District Response, Discussion and Action Required: See the Action Required for Comment B.

2) The report is confusing regarding the issue of sponsorship of the project and the PCA. On page V-4 the report appears to state that lands will be required for the project that are under the control of the Gila River Indian Community (GRIC). According to the report, since the GRIC is a sovereign entity, it will not allow its lands to be subject to ownership or control by other governmental entities. Therefore, the report states, "the GRIC must provide all lands, easements, rights-of-way, or disposal areas for any feature on tribal lands." This language certainly suggests that the GRIC will serve as a non-Federal sponsor for the project, or at least for the provision of LERRDs for a portion of the project. However, further in the report, in discussing sponsorship (page VII-9), it states that the City of Phoenix will serve as the non-Federal sponsor for the project. This section does not refer to GRIC. If in fact, no project features will be placed on GRIC lands, then the report should clearly state this, which makes further reference to GRIC irrelevant. However, if some of the project features will be on GRIC lands, discussion of how this will affect sponsorship of the project must occur. Please note that on page V-35, the report refers to non-Federal sponsors in the plural. Finally, in Appendix I, ¶5 (Technical Appendices), there again is considerable discussion regarding sponsorship of a portion of the project by the GRIC.

District Response, Discussion and Action Required: See the Action Required for Comment A1.

3) There is an issue to address regarding the delineation of environmental restoration features from the structural flood control features, and indeed from the recreation features. The report should indicate that the Government will determine the allocation of costs to these features. Furthermore, as the cost sharing for each project purpose is separate and distinct, the recommendations should list them that way.

District Response, Discussion and Action Required: The report will include an allocation of project costs to the flood control, ecosystem restoration and recreation purposes. The recommendations will list the cost-sharing amounts separately for each project purpose.

4) On page VII-3 in ¶E., the reference should be to a Project Cooperation Agreement in lieu of a "Project Cost Sharing Agreement."

District Response, Discussion and Action Required: The reference to the "Project Cost Sharing Agreement" will be revised to "Project Cooperation Agreement."

5) On page VII-8, paragraph 14 addressing compliance with applicable federal laws, the District has omitted reference to Section 402 of WRDA 86 concerning development and implementation of flood plain management plans. This same comment applies to the same paragraph in Section IX-4.

District Response, Discussion and Action Required: The report will be revised to make appropriate references to Section 402 of WRDA 86.

6) The District needs to provide a specific reference to which section of Public Law 90-483 it is referring to in paragraph 16 on page VII-8. This is necessary so that the accuracy of this statement may be verified, and the propriety of including it in the requirements of local cooperation.

District Response, Discussion and Action Required: The district will provide a specific reference to the relevant Section of PL 90-483.

7) The origin of the local cooperation requirement found in paragraph 18 of pages VII-8 and IX-5 is requested. While there is no quarrel with the underlying policy, it is unclear as to the origin of this requirement.

District Response: The item of local cooperation in question will be deleted.

Discussion: A consensus was reached that the local cooperation item, which refers to gaming, is not appropriate for this project. It will therefore be deleted.

Action Required: The item of local cooperation that refers to gaming will be deleted.

F. Real Estate Comments.

1) Paragraph 5 of the preliminary Real Estate Appendix (REA) clearly states that the GRIC will not convey required real property interests to the City in aid of project implementation. Therefore, the REA states, the GRIC must sign a PCA for any project that requires GRIC lands. Absent information as to other viable options, concur in this conclusion. If the GRIC governing body should agree to be a PCA signatory, it could be for the limited purpose of providing the required LER.

District Response, Discussion and Action Required: See Action Required for Comment A1.

2) During the course of review of the REA, the following issues were noted that must be adequately addressed in the comprehensive REA required by Chapter 12 of ER 405-1-12 when the draft feasibility report is later submitted to HQUSACE for policy compliance review:

performed by a Government contractor. Paragraph 12 of the preliminary REA states that LERRD crediting "is not expected to raise any significant issues." If GRIC lands remain as part of the proposed project, careful consideration must be given to whether legal impediments exist to the marketability of GRIC lands that would impact on fair market value. In addition, the impact of existing Federal projects on LER crediting must be analyzed. The District should consult with CERE-E as to its conclusions in these regards prior to providing instructions to the Government contractor for preparation of the Gross Appraisal.

District Response: The GRIC lands will be appraised using the same methods that are used to appraise military lands.

Discussion: The use of methods similar to those used for the appraisal of military lands was discussed with HQUSACE staff, specifically Joe Herrick and Bill Bayert. Coordination with the City of Phoenix and the State Department of Game and Fish is required to determine the estates that will be acquired and form the basis for the appraisal. There are no Federal lands associated with the proposed project.

Action Required: The district will coordinate with the City and the Department of Game and Fish regarding the estates to be acquired. Prior to completion of the Gross Appraisal, the District will consult with CERE-E, with Division participation, as indicated in the comment. The draft report will discuss all credit to be given for real estate, including State and GRIC lands.

features of the project, and the potential for 2 Sponsors having separate LER provision responsibilities, the REA should be drafted to present clear descriptions of the LERRD required, and the estimated values that attach, for such features, formulas, and Sponsors.

District Response, Discussion and Action Required: The REA will present clear descriptions of the LERRD required, and the estimated values that attach, for such features, formulas, and sponsors.

or permits in lieu of standard real property interests on public lands that may be required for the proposed project. Following completion of the research and analysis alluded to in the preliminary REA, the District must present adequate justification for their utilization.

District Response, Discussion and Action Required: The District will coordinate with the State Department of Game and Fish and the City of Phoenix to determine the appropriate estates, use permits or licensing procedures. These will be defined in Real Estate Plan.

3) Item 19 of the local cooperation requirements found on pages VII-8 and IX-5 of the documentation should be expanded to include "repair, replace, and rehabilitate." In addition, the item per se, and the report generally, should be expanded to explain whether the cost of providing such water is an associated cost of the project to be borne 100% by the non-Federal Sponsor similar to the Rio Salado project, or whether attendant costs will be shared as part of project LER or otherwise.

District Response, Discussion and Action Required: Item 19 of the local cooperation requirements will be revised to include repair, replace, and rehabilitation. The report will also indicate that the cost of providing water is an associated cost of the project, borne by the non-Federal sponsor.

G. Other Comments.

1) The executive summary states that the total gross investment costs are $97.6 million in October 1999 price levels and that $93.5 million are the costs of the restoration component. It should be made clear in the narrative that the gross investment costs include an interest during construction amount and that these amounts are used in the economic analysis for project justification. The construction cost amount, which is what will eventually be cost shared, is $84.7 million for environmental restoration, $3.8 million for the flood control levee portion and $14.2 million for the recreation portion of the plan. These are the cost estimates that are necessary for the Federal and non-Federal sponsor planning and budgeting process. The authorizing language, however, states that the original authorization is modified to make ecosystem restoration a project purpose and that the Secretary is authorized to construct a project at a total cost of $17,500,000. It is further noted that the FY 00 justification sheet for PED for the project states that the estimated project cost is $20 million. The district needs to explain this significant difference.

District Response, Discussion and Action Required: See Action Required for Comment B.

2) It is noted that the report recommends that the Army assert an exemption from state water quality certification requirements under the Clean Water Act in accordance with the provisions of Section 404(r) of the Act. This is not the preferred approach. A strong justification needs to be provided as to why the project must pursue the exemption as opposed to seeking a section 401 State Water Quality certificate. ER 1105-2-100, chapter 7, section IX lays out the requirements that must be met whether or not the 404(r) exemption is being requested. The draft EIS accompanying this report does not fully comport with these requirements (e.g., 404(b)(1) analysis).

District Response: The draft report will include a Section 404(b)(1) Analysis.

Discussion: There would be significant advantages in obtaining the Section 404(r) exemption through the elimination of the additional bureaucratic requirements associated with obtaining the water quality certification. It was noted that some other States have actually requested the use of Section 404 (r) to reduce this burden. The concern over the use of Section 404 (r) is the perceived usurping of the State’s role in administration of the Clean Water Act. Therefore, the District should coordinate with the State to assure that the State is comfortable with use of the exemption.

Action Required: The draft report will include a Section 404(b)(1) Analysis and the District will coordinate with the State regarding the use of the Section 404(r) exemption.

3) The summary information package that was provided apart from the report and appendices states that implementation of the plan would require a commitment of water by the city of Phoenix (non-Federal sponsor) over the project life. In a PCA, a commitment by the local sponsor is for as long as the project is authorized and not necessarily limited to a project life. The item of local cooperation (19) in the recommendation section IX of the main report appropriately identifies the timing of the commitment.

District Response, Discussion and Action Required: The report will be revised to reflect that the plan would require a commitment of water by the City of Phoenix as long as the project remains authorized.

4) For the levee, it should be noted that when describing the cost shared items as construction or LERRD, the cost shared construction items are usually levee costs, closure structures, interception of drainage at the levee and conveyance to the stream side, collector drains along the levee, gravity drains through the levee and pumping plants. LERRD items are usually all lands, relocations, conveyance of drainage to the levee, and end treatment elements on the riverside of the levee. The report should identify in detail the cost shared items for the levee as described above.

District Response, Discussion and Action Required: The report will appropriately separate LERRD costs from construction costs.

5) Please carefully review the statement at page VII-4 in the first paragraph on the page that promises that a 404 permit to be issued to the non-Federal sponsor that "will include certification that no additional mitigation will be required for O&M of the project over the project life." Since the project life will be until such time as the project is de-authorized, this seems to be a fairly conclusive statement to make and promise in a permit. Statements such as this could be construed as "pre-determination "that subverts the Corps of Engineers regulatory process and responsibilities.

District Response: An initial permit for the O&M of the project will be issued to the City of Phoenix with the O&M manual. The City will be responsible for renewing the permit.

Discussion: The Corps of Engineers cannot commit to future permits or future permit conditions. Options were discussed regarding a 10-year permit for O&M or a renewable 5-year permit.

Action Required: The feasibility report and the EIS will clearly indicate that the EIS will support the issuance of the first permit for O&M. The statement regarding future mitigation will be removed from the report.

6) On page VI-4 it is noted that the environmental monitoring is envisioned for the life of the project. If long term monitoring is required, then it is the non-Federal sponsor’s responsibility. The Corps will participate in short-term monitoring in accordance with EP 1165-2-1, dated 30 July 1999. The current Corps guidance on monitoring at ecosystem restoration projects (still in draft) is that cost shared monitoring should not exceed five years.

District Response, Discussion and Action Required: The Corps participation in monitoring and adaptive management will be limited to five years. The report will include discussions of the proposed monitoring and adaptive management programs.

7) It was noted on page VI-3 that the flood control levee will vary in height from 4-10 feet. No design features or mitigation was identified for aesthetics. The impacts must be clearly identified and mitigated to the extent justified.

District Response, Discussion and Action Required: The report will include an appropriate impact assessment and mitigation for the aesthetics of the flood control levee.

8) There appears to be some inconsistencies in the O&M cost shown on pages VI-4, VI-5, VI-8, VI-9, and VII-4. The number need to be consistent

District Response, Discussion and Action Required: The report will be revised to remove inconsistencies in the O&M cost.

9) Page VI-9 identifies deposition of sediment in the ecosystem restoration project that will have to be removed infrequently. It is estimated that there will be in excess of 50,000 cubic yards annually deposited. This raises numerous concerns with regard to destruction of the ecosystem restoration project during removal, location of disposal sites for the sediment for so long as the project is authorized, increased traffic (approximately 10,000 truck loads for 50,000 cy), noise associated with trucks, and air quality concerns associated with trucks. This could be even more complicated if there should be any seasonal/timing restrictions.

District Response, Discussion and Action Required: The draft report/EIS will be revised to address impacts associated with O&M, including the required removal of sediment from the project.

10) Table 7.1 on page VII-2 needs some further clarification. It is unclear if the identified LERRDs are required solely for flood control. If any portion of the LERRDs is assignable to either ecosystem restoration or recreation, then the 5% cash contribution will have to be adjusted. The 5% would only include the total first costs for flood control.

District Response, Discussion and Action Required: The report will clarify LERRD requirements for the flood control, ecosystem restoration, and recreation purposes. Only the allocated costs to flood control will be subject to the 5% up-front cash contribution.

11) Clarification of the functioning and value of the regulating wetland is needed. If there are major fluctuations in this wetland, the border becomes barren and the value as a wetland is greatly diminished. It is also confusing that the average depth of water in this wetland is 4-5 feet, which more resembles open marsh than a wetland. Finally there is a concern about the wetlands that are acting as polishing areas for waste water treatment. Some assurances are needed that these areas will not become a chemical sink and act as an attractive nuisance to wildlife.

District Response: The functioning of the regulated wetland will be described in the draft report.

Discussion: The field trip added greatly in the understanding of the regulated wetlands. The testing program for the Tres Rios Wetlands Demonstration Project indicates that the wetlands will not become a chemical sink. This will be documented in the report.

Action Required: The report will describe how the regulated wetland would function. The report would also describe the resulting water quality, based on the experience at the Tres Rios Demonstration Project.