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HomeMy WebLinkAboutMINUTES - 11122013 - C.11RECOMMENDATION(S): ACKNOWLEDGE the limited funding in Flood Control Zone 7 (Wildcat Creek); SUPPORT the Chief Engineer’s approach to continue participation with the Corps of Engineers on the Wildcat Creek Section 1135 project planning as long as possible without a cash contribution to the Corps; DIRECT the Chief Engineer, Contra Costa County Flood Control & Water Conservation District to continue project participation under certain conditions; and AUTHORIZE the Chair of the Board of Supervisors to sign the attached letter to the Assistant Secretary of the Army, North Richmond area. (100% Flood Control Zone 7 funds) APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 11/12/2013 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: Paul Detjens (925) 313-2394 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: November 12, 2013 David Twa, County Administrator and Clerk of the Board of Supervisors By: June McHuen, Deputy cc: David Twa, County Administrator, Lara DeLaney, County Administrator's Office, Mike Carlson, Flood Control, Paul Detjens, Flood Control, Catherine Windham, Flood Control, Paul Schlesinger, Alcalde and Fay C. 11 To:Contra Costa County Flood Control District Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:November 12, 2013 Contra Costa County Subject:Support continued participation with US Army Corps of Engineers on the Wildcat Creek Section 1135 Project, North Richmond area. Project #7527-6F8619 FISCAL IMPACT: The fiscal impact throughout the design and construction phases is estimated to be approximately $200,000, funded by Flood Control Zone 7. The anticipated local match for the $5,000,000 federal project is approximately $1,500,000, which is expected to be covered by future grant proceeds. BACKGROUND: This is a time-critical item and would normally go before the Transportation, Water and Infrastructure Committee (TWIC). With the cancellation of the November 7, 2013, TWIC meeting, this item is proceeding directly to the full Board for consideration. Original Corps Project In the late 1980s, the US Army Corps of Engineers (Corps), the Contra Costa County Flood Control & Water Conservation District (Flood Control District), and many local stakeholders worked together to develop plans for a flood risk reduction project on Wildcat and San Pablo Creeks in North Richmond. With extensive stakeholder input, the Corps developed a comprehensive plan that reduced flood risk, improved the environment, and provided recreation to the local community. Unfortunately, this plan was costly and there weren’t enough benefits to be financially justified by the Corps. Raising the needed funds for the federal project’s local match was especially difficult in these watersheds, because the ad valorem tax rate had been frozen in the aftermath of Proposition 13 at a level that did not support the type of project desired by the stakeholders. In response, the Flood Control District offered a lower cost and much more austere plan that reduced flood risk but did not substantially provide the other desired amenities. This plan was not well received by stakeholders. To resolve disagreements in the project design, the Corps, Flood Control District, and stakeholders formed the Wildcat San Pablo Creeks Design Team, which eventually evolved into the Wildcat San Pablo Creeks Watershed Council. This group worked on a compromise plan, which was eventually implemented by the Corps in the early 1990s. The resulting project has become a nationwide model for innovative, geomorphic design and features much more vegetation and habitat than is found in a typical flood control facility. On Wildcat Creek, some problems with the project arose soon after construction. Wildcat Creek has a very large sediment load, which makes constructing a stable, sustainable channel very challenging. The fish ladder on Wildcat Creek tended to fill up quickly with sediment and debris, and even with extraordinary maintenance efforts, did not allow steelhead to successfully pass upstream. The sediment basin constructed with the project also was undersized and filled up much more quickly than originally assumed in the design of the project. Funding a Fix In 1998, in response to these and other issues, the Corps of Engineers offered participation in their “Section 1135” Ecosystem Restoration program for Wildcat Creek. This program offered an avenue to further improve habitat in Wildcat Creek, and also to resolve many problematic features of the original design. At the request of the Watershed Council, the Flood Control District indicated to the Corps interest in participating and serving as the nonfederal sponsor for the project. As per the terms of the Corps’ nationwide 1135 program, there was no upfront local match required to begin the planning effort. At the conclusion of the Corps’ planning process, the nonfederal sponsor would receive the proposed design concept and, at that time, decide whether to abandon the partnership (with no financial responsibility or hard feelings) or to pay back the local share of the planning costs and proceed forward with detailed design and ultimately to project construction. The Flood Control District agreed to be the sponsor of the 1135 project with the explicit understanding that it would participate with staff time and expertise, but that local match would need to come from community stakeholders, such as the Watershed Council. The expectation was once the Corps planning was completed, the Watershed Council could use the Corps’ design concept to seek grant funding, which would pay the local cost of the Corps’ planning process and also cover the local match moving forward. Corps Section 1135 Project Between 1999 and 2003, the Corps made great progress on identifying problems and developing conceptual solutions under their Section 1135 program. The Watershed Council had identified $1,000,000 in state funding that would cover the local match. At this point, all indications were that the project would come to a successful conclusion. In 2004, in the middle of the Corps’ planning work on Wildcat Creek, the Corps instituted a nationwide freeze on the 1135 program. This pause ended up lasting six years until funding was partially restored in 2010. It was becoming clear to watershed stakeholders, including the Flood Control District, that some of the more serious issues on Wildcat Creek could not wait until the completion of the Section 1135 process. One such issue was the realignment of the low flow channel which had, in the course of one winter season, filled with sediment and shifted away from the trees and shade that bordered it. The low flow channel was intended to provide good passage and habitat for fish, but had quickly evolved into something that provided neither. Early Implementation As part of their preliminary planning, the Corps had identified solutions for this exact issue. However, the Corps was not able to implement any solutions until their planning and design processes were fully completed. In response, the Flood Control District and a local nonprofit group used the Corps’ preliminary 1135 designs, and using grant funds, reconstructed the low flow channel into a much more stable configuration. In 2007, specific language was included in Congress’ Water Resources Development Act (WRDA) that specifically acknowledges early implementation work, such as this low flow channel work, and allows it to count towards the local match of a future Section 1135 project. This project was, and still is, in Congressman Miller’s district. Congressman Miller was the sponsor of the language added to WRDA for Contra Costa County. While the Corps 1135 program was frozen, the Flood Control District received nearly $2,000,000 in state grants that covered levee investigation and rehabilitation on Wildcat and San Pablo Creeks. This was in response to the levees on these two creeks, potentially requiring many properties to purchase flood insurance. The levee investigation work has been completed, and the rehabilitation design work is ongoing. Construction is tentatively scheduled for summer 2015. Approximately $1,000,000 of these grant funds are being spent on Wildcat Creek levees. The Corps early 1135 project planning work identified that levee raising would be needed to accommodate many of the solutions being studied (such as the low flow channel realignment). The Flood Control District took advantage of state grant funding opportunities when the Corps process was stalled. Because the levee work was identified by the Corps as necessary for the future 1135 project, the Flood Control District intends to use these state grant funds as partial local match for the Corps 1135 project. Restart of the 1135 Project; Change in Rules In 2010, the Corps provided a small amount of funding to restart the 1135 planning work for Wildcat Creek. The minimal funding levels allowed study of some minor project items, but progress was slow. The completely new planning team needed to become familiar with the project’s problems and the past work. This rework increased the Corps overall planning costs and slowed progress. In August 2013, an additional $300,000 of federal funds was provided for Wildcat Creek and the Corps hired a planning consultant to bring the planning phase of the project to completion by late 2014. Nearly coincident with the announcement of the additional funding, Corps Headquarters issued new nationwide guidance that changed the rules of the 1135 program. Under the old rules, the Corps would pay 100% of planning costs with the expectation that the local sponsor would pay back their 50% share of planning costs if they wanted to proceed to design and construction. Under the new rules, the local sponsor must pay a 50% share of the remaining planning costs (estimated to be about $400,000) in addition to paying back their 50% share of past planning costs if they want to proceed to design and construction. This results in a significant local cash outlay now before being able to see the final product and to seek grant funds to pay back the local share. The Corps has notified the Flood Control District that project planning work will again cease unless the Flood Control District executes a Feasibility Cost Share Agreement (FCSA) that conforms to these new rules. Credit for Early Implementation Work In accordance with the language Congressman Miller added to WRDA 2007, the Flood Control District intends to use grant funds to cover the entire nonfederal share of the project. However, the Corps new Section 1135 rules and their standard FCSA do not specifically allow this approach, and instead expect the sponsor to pay their share of the planning work in cash. Flood Control District staff is working with the Corps to modify the standard FCSA to allow credit for the early implementation work as noted in WRDA 2007. The new Corps’ guidance and Congress’ project-specific WRDA 2007 direction to the Corps are in conflict. The attached letter to the Assistant Secretary of the Army seeks her support in resolving this policy issue. An Approach to Continued Participation Even with the poor financial condition of Flood Control Zone 7, the Flood Control District can participate in the Wildcat Creek 1135 Project under the old Corps rules. These old rules allowed the completion of planning work, and then time to seek grant funds before paying back the local share and proceeding with design and construction. However, the new rules requiring upfront cash payment all but preclude continued participation by the Flood Control District or by other watershed stakeholders such as the Watershed Council. After considering many options, the Flood Control District’s desired approach is to: · Operate within the financial means of Flood Control Zone 7. · Continue participating with the Corps as long as possible. · Seek Corps acceptance of early implementation work as project credit per WRDA 2007. · Negotiate an acceptable FCSA which includes consideration and credit of the early implementation work. · Negotiate a reduction in the amount of past planning costs. · Request the Watershed Council seek grant funding, as needed, to cover any remaining local cost share. Outside these specific, reasonable conditions, the Flood Control District cannot continue to participate in the Wildcat 1135 Project. CONSEQUENCE OF NEGATIVE ACTION: Rejection of the recommendation would cause a disorderly termination of the Corps partnership, which may negatively affect the Flood Control District’s and watershed stakeholders’ ability to implement future restoration projects in Wildcat Creek. CHILDREN'S IMPACT STATEMENT: Not applicable. ATTACHMENTS BOS Letter to USACE The Board of Supervisors County Administration Building 651 Pine Street, Room 106 Martinez, California 94553 John Gioia, 1st District Candace Andersen, 2nd District Mary N. Piepho, 3rd District Karen Mitchoff, 4th District Federal D. Glover, 5th District November 12, 2013 The Honorable Jo-Ellen Darcy Assistant Secretary of the Army for Civil Works 108 Army Pentagon Washington, DC 20310-0108 RE: Importance of US Army Corps of Engineers to Honor WRDA 2007 Language Regarding In-kind Contributions for the Wildcat Creek Section 1135 Project Dear Assistant Secretary of the Army Darcy: The Contra Costa County Flood Control & Water Conservation District (Flood Control District) and the US Army Corps of Engineers (Corps) have enjoyed a long and successful partnership that has reduced flood risk for thousands of residents in our County. Most recently, this partnership extended to Wildcat Creek, resulting in an innovative flood risk reduction project that features geomorphic principles and habitat improvement in addition to the standard channelization and levees. Since 1998, the Flood Control District has been working with the Corps on a Section 1135 ecosystem restoration project on Wildcat Creek that builds on the successes of the original project, which was completed in the early 1990s. The Flood Control District has been patient through the many starts and stops of the Corps Section 1135 planning process and has acted reasonably and responsibly as a nonfederal sponsor for this work. Part of this approach includes seeking out funding opportunities to assist in implementation of the Corps Section 1135 plan. To date, the Flood Control District has secured over $1million in state grants for Wildcat Creek, which will be used to implement portions of the Corps 1135 plan years before the Corps is able to do so. At the Flood Control District’s request, Section 3039 of the Water Resources Development Act of 2007 included specific language allowing credit towards the nonfederal share of the project carried out by the nonfederal interest before the date of a formal project partnership agreement. This language was specifically requested to ensure that credit would be properly granted and gave the Flood Control District confidence to proceed with applying for state grants to fund early implementation of parts of the 1135 project. Last month, the Flood Control District was informed of imminent changes to the Continuing Authority Program (CAP) process. This process now requires execution of a Feasibility Cost Share Agreement (FCSA) with resulting cost sharing of feasibility phase costs incurred up to and payable upon execution of the FCSA. The Flood Control District’s intent has always been to satisfy the local match using state grant funds and local work-in-kind. David Twa Clerk of the Board and County Administrator (925) 335-1900 Contra Costa County The Honorable Jo-Ellen Darcy November 12, 2013 Page 2 of 2 Early feedback from the Corps San Francisco District has been problematic. Due to lack of specific implementation guidance, there has been confusion about the applicability of the WRDA 2007 language and skepticism that the state grant funds could be credited towards the nonfederal cost share. The Flood Control District’s continued partnership in the Wildcat Creek 1135 project is predicated on allowing fair and appropriate credit of this early implementation work in accordance with the project-specific language included in WRDA 2007. The Flood Control District is also concerned about excessive planning costs for the 1135 project, which partially stem from the six-year freeze (2004–2010) in the CAP program. Stopping the project and then restarting has required a near complete turnover of the project team and significant rework of project assumptions and planning efforts. To date, Corps expenditures and obligations exceed $1.5 million. A significant amount of that expenditure was prior to freezing the project in 2004. In summary, we respectfully ask for your assistance to: 1. Ensure fair and appropriate credit of early implementation work by the nonfederal interest as specifically granted in WRDA 2007, and 2. Grant partial relief of excessive planning costs in light of the duplication of Corps efforts due to the six-year total shutdown and subsequent restart of the project. We greatly value our continued partnership with the Corps and trust that these current difficulties can quickly be put behind us so that we may continue working together toward implementing the Wildcat 1135 project. Please contact Julie Bueren, Chief Engineer of the Flood Control District, at (925) 313-2201 or jbuer@pw.cccounty.us if you have any questions or need any follow-up regarding this request. Sincerely, FEDERAL D. GLOVER Chair, Board of Supervisors cc: Members – Board of Supervisors David Twa, County Administrator Lara DeLaney, County Administrator’s Office Julia R. Bueren, Chief Engineer Mike Carlson, Flood Control District Paul Detjens, Flood Control District The Honorable George Miller U.S. House of Representatives 2205 Rayburn House Office Building Washington, DC 20515 Paul Schlesinger Alcalde and Fay 2111 Wilson Blvd., 8th Floor Arlington, VA 22201