HomeMy WebLinkAboutMINUTES - 08062013 - C.16RECOMMENDATION(S):
SUPPORT language in the proposed 2013 Water Resources Development Act (WRDA) or other federal legislation
that would amend 1996 WRDA Section 202(g) regarding the US Army Corps of Engineers (Corps) vegetation
management guidelines and AUTHORIZE the Chair of the Board of Supervisors to sign a letter of support.
FISCAL IMPACT:
Supporting this legislation will cost approximately $4,000 in staff costs, to be funded by Contra Costa County Flood
Control & Water Conservation District (FC District) funds.
BACKGROUND:
In 2010, the Corps proposed new nationwide guidelines for approving variances to their vegetation requirements
along Corps built levees, floodwalls, and appurtenant structures. The FC District currently owns and maintains
several federally authorized flood control facilities with levees as part of their flood protection system improvements.
The Corps vegetation policy does not allow vegetation, other than low grasses, on any part of a flood control levee.
Under certain circumstances, the Corps proposes to allow vegetation to remain on a small portion of the levee if a
variance is approved. The FC District levees impacted by this policy were designed with vegetation
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 08/06/2013 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Tim Jensen (925) 313-2390
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: August 6, 2013
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc: David Twa, County Administrator, Sharon Anderson, County Counsel, Lara DeLaney, County Administrators Office, Betsy Burkhart, County
Administrator's Office, R. Mitch Avalon, PWD Administration, Mike Carlson, Flood Control, Paul Detjens, Flood Control, Catherine Windham, Flood
Control, Paul Schlesinger, Alcalde and Fay
C. 16
To:Contra Costa County Flood Control District Board of Supervisors
From:Julia R. Bueren, Public Works Director/Chief Engineer
Date:August 6, 2013
Contra
Costa
County
Subject:Support federal legislation amending 1996 WRDA Section 202(g), Countywide. (100% Flood Control District Funds)
Project No. 7505-6F8189
BACKGROUND: (CONT'D)
as an integral part of the facility and as environmental mitigation. Recent scientific studies have shown that
vegetation is not a direct cause of levee failure. The FC District’s position is that the Corps guidelines should be
expanded to include a variance process that would allow all vegetation to remain where warranted.
The proposed guidelines will place the FC District in a very difficult situation to either violate the State
Endangered Species Law to comply with the variance requirements or lose storm damage funding from the Corps
for noncompliance. Complying with the guidelines would also break a covenant with the community on their
expectation for vegetation within flood control channels. In addition, the FC District does not have the funds to
obtain a variance or comply with the guidelines.
The following actions have been taken by the FC District, other agencies, and our Congressional Delegation since
the Corps published their vegetation variance policy in the Federal Register on February 9, 2010:
1. March 15, 2010, letter from FC District to Corps expressing concerns with the variance policy.
2. April 20, 2010, letter to Congressional Delegation from the Board of Supervisors describing the impacts and
requesting assistance to engage the Corps on this issue.
3. September 28, 2010, letter to Congressional Delegation from the Board of Supervisors requesting that they sign
a statewide letter to the Corps.
4. October 11, 2010, Press Conference hosted by the Board of Supervisors with Congressmen Garamendi and
Miller represented.
5. December 6, 2010, letter from California Congressional Delegation to Corps Assistant Secretary asking that the
Corps work with local and state officials.
6. February 15, 2011, letter from California Congressional Delegation to Corps Assistant Secretary asking for a
delay in implementation of their vegetation guidelines and to work with California stakeholders to resolve issues.
7. April 8, 2011, letter from California State Association of Counties to Senator Boxer, Congresswoman Matsui,
and Congressman Garamendi proposing amendment to the 1996 WRDA language.
8. May 3, 2011, Board of Supervisors authorizes support of WRDA 2011 or other federal legislation regarding
Corps vegetation management guidelines.
9. June 20, 2011, legal action filed against the Corps by a coalition of Friends of the River, Defenders of Wildlife,
and Center for Biological Diversity.
10. December 7, 2011, legal action filed against the Corps by California Department of Fish and Game.
11. February 17, 2012, Corps publishes revised vegetation variance guidelines in the Federal Register.
12. April 3, 2012, letter to Corps from California Congressional Delegation regarding unresolved fundamental
issues with the revised vegetation variance guidelines.
13. November 15, 2012, The Senate Environment and Public Works Committee held a hearing on an initial draft
of the Water Resources and Development Act circulated by Senator Boxer, Chair of the Committee.
14. January 23, 2013, Congresswoman Matsui and 25 other Congressional Delegates introduce the Levee
Vegetation Review Act, HR 399.
To date, the Corps has not engaged the state or local officials as requested. Staff recommends supporting both the
attached proposed HR 399 and the attached 2013 WRDA legislation amending 1996 WRDA Section 202(g)
concerning the Corps vegetation management guidelines, and authorizing the Chair of the Board of Supervisors to
sign the attached letter of support. These specifically direct the Corps to review and revise their vegetation
management guidelines in cooperation and consultation with all interested stakeholders. A statewide coalition of
agencies has drafted this proposed amendment. If either the HR 399 or 2013 WRDA legislation are not enacted,
then staff also recommends supporting other federal legislation or appropriations legislation as necessary to
engage the Corps on this issue.
CONSEQUENCE OF NEGATIVE ACTION:
The ability to engage the Corps on this critical issue will be less effective, increasing the probability that the FC
District and Contra Costa communities will be adversely impacted.
CHILDREN'S IMPACT STATEMENT:
Not applicable.
ATTACHMENTS
Letter of Support to Congress
HR 399
Excerpt from S 601
113TH CONGRESS
1ST SESSION S. 601
AN ACT
To provide for the conservation and development of water
and related resources, to authorize the Secretary of the
Army to construct various projects for improvements to
rivers and harbors of the United States, and for other
purposes.
Be it enacted by the Senate and House of Representa-1
tives of the United States of America in Congress assembled, 2
2
†S 601 ES
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1
(a) SHORT TITLE.—This Act may be cited as the 2
‘‘Water Resources Development Act of 2013’’. 3
(b) TABLE OF CONTENTS.—The table of contents of 4
this Act is as follows: 5
Sec. 1. Short title; table of contents.
Sec. 2. Definition of Secretary.
TITLE I—WATER RESOURCE PROJECTS
Sec. 1001. Purposes.
Sec. 1002. Project authorizations.
Sec. 1003. Project review.
Sec. 1004. Future project authorizations.
TITLE II—WATER RESOURCES POLICY REFORMS
Sec. 2001. Purposes.
Sec. 2002. Safety assurance review.
Sec. 2003. Continuing authority programs.
Sec. 2004. Continuing authority program prioritization.
Sec. 2005. Fish and wildlife mitigation.
Sec. 2006. Mitigation status report.
Sec. 2007. Independent peer review.
Sec. 2008. Operation and maintenance of navigation and hydroelectric facilities.
Sec. 2009. Hydropower at Corps of Engineers facilities.
Sec. 2010. Clarification of work-in-kind credit authority.
Sec. 2011. Transfer of excess work-in-kind credit.
Sec. 2012. Credit for in-kind contributions.
Sec. 2013. Credit in lieu of reimbursement.
Sec. 2014. Dam optimization.
Sec. 2015. Water supply.
Sec. 2016. Report on water storage pricing formulas.
Sec. 2017. Clarification of previously authorized work.
Sec. 2018. Consideration of Federal land in feasibility studies.
Sec. 2019. Planning assistance to States.
Sec. 2020. Vegetation management policy.
Sec. 2021. Levee certifications.
Sec. 2022. Restoration of flood and hurricane storm damage reduction projects.
Sec. 2023. Operation and maintenance of certain projects.
Sec. 2024. Dredging study.
Sec. 2025. Non-Federal project implementation pilot program.
Sec. 2026. Non-Federal implementation of feasibility studies.
Sec. 2027. Tribal partnership program.
Sec. 2028. Cooperative agreements with Columbia River Basin Indian tribes.
Sec. 2029. Military munitions response actions at civil works shoreline protec-
tion projects.
Sec. 2030. Beach nourishment.
Sec. 2031. Regional sediment management.
Sec. 2032. Study acceleration.
63
†S 601 ES
(i) by striking ‘‘$10,000,000’’ and in-1
serting ‘‘$30,000,000’’; and 2
(ii) by striking ‘‘$2,000,000’’ and in-3
serting ‘‘$5,000,000 in Federal funds’’; 4
and 5
(B) in paragraph (2), by striking 6
‘‘$5,000,000’’ and inserting ‘‘$15,000,000’’. 7
SEC. 2020. VEGETATION MANAGEMENT POLICY. 8
(a) DEFINITION OF NATIONAL GUIDELINES.—In this 9
section, the term ‘‘national guidelines’’ means the Corps 10
of Engineers policy guidelines for management of vegeta-11
tion on levees, including— 12
(1) Engineering Technical Letter 1110–2–571 13
entitled ‘‘Guidelines for Landscape Planting and 14
Vegetation Management at Levees, Floodwalls, Em-15
bankment Dams, and Appurtenant Structures’’ and 16
adopted April 10, 2009; and 17
(2) the draft policy guidance letter entitled 18
‘‘Process for Requesting a Variance from Vegetation 19
Standards for Levees and Floodwalls’’ (77 Fed. Reg. 20
9637 (Feb. 17, 2012)). 21
(b) REVIEW.—Not later than 180 days after the date 22
of enactment of this Act, the Secretary shall carry out a 23
comprehensive review of the national guidelines in order 24
to determine whether current Federal policy relating to 25
64
†S 601 ES
levee vegetation is appropriate for all regions of the United 1
States. 2
(c) FACTORS.— 3
(1) IN GENERAL.—In carrying out the review, 4
the Secretary shall consider— 5
(A) the varied interests and responsibilities 6
in managing flood risks, including the need— 7
(i) to provide for levee safety with lim-8
ited resources; and 9
(ii) to ensure that levee safety invest-10
ments minimize environmental impacts and 11
provide corresponding public safety bene-12
fits; 13
(B) the levee safety benefits that can be 14
provided by woody vegetation; 15
(C) the preservation, protection, and en-16
hancement of natural resources, including— 17
(i) the benefit of vegetation on levees 18
in providing habitat for endangered, 19
threatened, and candidate species; and 20
(ii) the impact of removing levee vege-21
tation on compliance with other regulatory 22
requirements; 23
(D) protecting the rights of Indian tribes 24
pursuant to treaties and statutes; 25
65
†S 601 ES
(E) the available science and the historical 1
record regarding the link between vegetation on 2
levees and flood risk; 3
(F) the avoidance of actions requiring sig-4
nificant economic costs and environmental im-5
pacts; and 6
(G) other factors relating to the factors de-7
scribed in subparagraphs (A) through (F) iden-8
tified in public comments that the Secretary de-9
termines to be appropriate. 10
(2) VARIANCE CONSIDERATIONS.— 11
(A) IN GENERAL.—In carrying out the re-12
view, the Secretary shall specifically consider 13
whether the national guidelines can be amended 14
to promote and allow for consideration of 15
variances from national guidelines on a State-16
wide, tribal, regional, or watershed basis, in-17
cluding variances based on— 18
(i) soil conditions; 19
(ii) hydrologic factors; 20
(iii) vegetation patterns and charac-21
teristics; 22
(iv) environmental resources, includ-23
ing endangered, threatened, or candidate 24
66
†S 601 ES
species and related regulatory require-1
ments; 2
(v) levee performance history, includ-3
ing historical information on original con-4
struction and subsequent operation and 5
maintenance activities; 6
(vi) any effects on water supply; 7
(vii) any scientific evidence on the link 8
between levee vegetation and levee safety; 9
(viii) institutional considerations, in-10
cluding implementation challenges; 11
(ix) the availability of limited funds 12
for levee construction and rehabilitation; 13
(x) the economic and environmental 14
costs of removing woody vegetation on lev-15
ees; and 16
(xi) other relevant factors identified in 17
public comments that the Secretary deter-18
mines to be appropriate. 19
(B) SCOPE.—The scope of a variance ap-20
proved by the Secretary may include a complete 21
exemption to national guidelines, as the Sec-22
retary determines to be necessary. 23
(d) COOPERATION AND CONSULTATION; REC-24
OMMENDATIONS.— 25
67
†S 601 ES
(1) IN GENERAL.—The Secretary shall carry 1
out the review under this section in consultation 2
with other applicable Federal agencies, representa-3
tives of State, regional, local, and tribal govern-4
ments, appropriate nongovernmental organizations, 5
and the public. 6
(2) RECOMMENDATIONS.—The Chief of Engi-7
neers and any State, tribal, regional, or local entity 8
may submit to the Secretary any recommendations 9
for vegetation management policies for levees that 10
conform with Federal and State laws, including rec-11
ommendations relating to the review of national 12
guidelines under subsection (b) and the consider-13
ation of variances under subsection (c)(2). 14
(e) PEER REVIEW.— 15
(1) IN GENERAL.—As part of the review, the 16
Secretary shall solicit and consider the views of the 17
National Academy of Engineering and the National 18
Academy of Sciences on the engineering, environ-19
mental, and institutional considerations underlying 20
the national guidelines, including the factors de-21
scribed in subsection (c) and any information ob-22
tained by the Secretary under subsection (d). 23
(2) AVAILABILITY OF VIEWS.—The views of the 24
National Academy of Engineering and the National 25
68
†S 601 ES
Academy of Sciences obtained under paragraph (1) 1
shall be— 2
(A) made available to the public; and 3
(B) included in supporting materials issued 4
in connection with the revised national guide-5
lines required under subsection (f). 6
(f) REVISION OF NATIONAL GUIDELINES.— 7
(1) IN GENERAL.—Not later than 2 years after 8
the date of enactment of this Act, the Secretary 9
shall— 10
(A) revise the national guidelines based on 11
the results of the review, including— 12
(i) recommendations received as part 13
of the consultation described in subsection 14
(d)(1); and 15
(ii) the results of the peer review con-16
ducted under subsection (e); and 17
(B) submit to Congress a report that con-18
tains a summary of the activities of the Sec-19
retary and a description of the findings of the 20
Secretary under this section. 21
(2) CONTENT; INCORPORATION INTO MAN-22
UAL.—The revised national guidelines shall— 23
(A) provide a practical, flexible process for 24
approving Statewide, tribal, regional, or water-25
69
†S 601 ES
shed variances from the national guidelines 1
that— 2
(i) reflect due consideration of the fac-3
tors described in subsection (c); and 4
(ii) incorporate State, tribal, and re-5
gional vegetation management guidelines 6
for specific areas that have been adopted 7
through a formal public process; and 8
(B) be incorporated into the manual pro-9
posed under section 5(c) of the Act entitled ‘‘An 10
Act authorizing the construction of certain pub-11
lic works on rivers and harbors for flood con-12
trol, and for other purposes’’, approved August 13
18, 1941 (33 U.S.C. 701n(c)). 14
(3) FAILURE TO MEET DEADLINES.—If the 15
Secretary fails to submit a report by the required 16
deadline under this subsection, the Secretary shall 17
submit to the Committee on Environment and Pub-18
lic Works of the Senate and the Committee on 19
Transportation and Infrastructure of the House of 20
Representatives a detailed explanation of— 21
(A) why the deadline was missed; 22
(B) solutions needed to meet the deadline; 23
and 24
70
†S 601 ES
(C) a projected date for submission of the 1
report. 2
(g) CONTINUATION OF WORK.—Concurrent with the 3
completion of the requirements of this section, the Sec-4
retary shall proceed without interruption or delay with 5
those ongoing or programmed projects and studies, or ele-6
ments of projects or studies, that are not directly related 7
to vegetation variance policy. 8
(h) INTERIM ACTIONS.— 9
(1) IN GENERAL.—Until the date on which revi-10
sions to the national guidelines are adopted in ac-11
cordance with subsection (f), the Secretary shall not 12
require the removal of existing vegetation as a condi-13
tion or requirement for any approval or funding of 14
a project, or any other action, unless the specific 15
vegetation has been demonstrated to present an un-16
acceptable safety risk. 17
(2) REVISIONS.—Beginning on the date on 18
which the revisions to the national guidelines are 19
adopted in accordance with subsection (f), the Sec-20
retary shall consider, on request of an affected enti-21
ty, any previous action of the Corps of Engineers in 22
which the outcome was affected by the former na-23
tional guidelines. 24