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DRAFT CORPS OF ENGINEERS CONTRACTS: Louisiana Coastal Area, Mississippi River Gulf Outlet, and Lake Pontchartrain & Vicinity

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DRAFT CORPS OF ENGINEERS CONTRACTS: Louisiana Coastal Area, Mississippi River Gulf Outlet, and Lake Pontchartrain & Vicinity. Presented to the Coastal Protection and Restoration Authority July 11, 2008. Louisiana Coastal Area. Feasibility study on 6 ecosystem restoration projects

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DRAFT CORPS OF ENGINEERS CONTRACTS:Louisiana Coastal Area,Mississippi River Gulf Outlet, andLake Pontchartrain & Vicinity

Presented to the Coastal Protection and Restoration Authority

July 11, 2008

louisiana coastal area
Louisiana Coastal Area
  • Feasibility study on 6 ecosystem restoration projects
    • Multipurpose operation of Houma navigation lock
    • Terrebonne basin barrier shoreline restoration
    • Small diversion at Convent/Blind River
    • Amite River diversion canal modification
    • Medium diversion at White’s Ditch
    • Convey Atchafalaya river water to northern Terrebonne marshes
louisiana coastal area continued
Louisiana Coastal Area(continued)
  • Cost Share Agreement
    • CPRA to be Non-Federal Sponsor
    • NFS & Corps each lead on 3 projects
    • 50% NFS cost share
    • NFS work-in-kind projected to be 50%, so no payment anticipated by NFS
  • Purpose is to determine feasibility of the projects
mississippi river gulf outlet
Mississippi River Gulf Outlet
  • Construction
    • MRGO closure structure
    • Ecosystem restoration measures
  • Memorandum of Agreement
    • Full federal cost
    • Corps to construct
    • CPRA to be Non-Federal Sponsor
    • NFS to operate and maintain, and acquire necessary property rights
lake pontchartrain vicinity
Lake Pontchartrain & Vicinity
  • Construction
    • Accelerate completion of unconstructed portions of original project
    • Modify original project to improve performance and armor critical portions
    • Raise levee heights and enhance original project to provide level of protection to achieve NFIP certification
lake pontchartrain vicinity continued
Lake Pontchartrain & Vicinity(continued)
  • CPRA to be Non-Federal Sponsor
  • Partnering and Cost Share Agreement
    • Full federal expense for completion of original project
    • Full federal expense for improvement of original project
    • 35% NFS cost share for raising levee heights and enhancing original project
  • NFS to perform WIK, O&M, property acquisition
common issues
Common issues
  • Corps has complete control
    • For full federal and cost-shared work, Corps determines completion and turnover
      • Protection and/or performance
      • O&M cost
    • For cost-shared work, Corps determines Corps costs and NFS credit
      • Amount of NFS payment for Corps work
      • Amount of credit for NFS work
      • Corps determines expenditure of State funds
common issues continued
Common issues(continued)
  • Hazardous substance remediation
    • CERCLA liability can be huge and unknown
    • Corps position is that this is 100% NFS cost
    • Property owner liable under CERCLA
  • Use of federal program funds
    • Corps requires express authorization
    • Has been a problem in the past
    • Standard should be absence of prohibition
lca specific issues
LCA-specific issues
  • Total costs capped, but Corps could “crowd out” NFS costs
    • Corps can incur more than 50% share
    • Corps can “allocate” NFS costs to excess category
    • As a practical matter, NFS may have to agree to increase total costs
  • Availability of credits for pre-Agreement work
  • NFS ability to audit Corps expenditures
mrgo specific issues
MRGO-specific issues
  • Construction at full federal expense, but:
    • NFS to acquire necessary property rights (agreed; credit if possible)
    • NFS to perform environmental investigation and remediation
  • Clarification of “completion” versus “maintenance”
  • No dispute resolution mechanism
lpv specific issues
LPV-specific issues
  • NFS cannot agree or disagree to include or incur costs
  • NFS cannot cost-share all of the same types of costs as Corps
  • Credit limitations
    • May be impermissible
    • No reimbursement for WIK above NFS cost share
lpv specific issues continued
LPV-specific issues(continued)
  • No NFS or third-party review of disagreement
    • NFS comments during construction
    • NFS comments on completion
    • NFS request for warranty work
    • Credit for property, relocations, and improvements
    • Corps determination of funds due
lpv specific issues continued13
LPV-specific issues(continued)
  • NFS responsible for:
    • Acquisition of necessary property rights
    • Relocations - Roads, railroads, pipelines
    • Building improvements for disposal of dredged material from construction
    • Interior drainage & pumping plants – No credit
    • Commandeering – No credit for defense
    • CERCLA remediation – No credit
lpv specific issues continued14
LPV-specific issues(continued)
  • Confusing cost-share payment scheme
    • Appears to require up-front payment despite credit for WIK, etc., with reimbursement later
  • Problematic property rights process
    • Preference for commandeering
    • Provision of other gov’t agency property
    • Unrealistic time frames for acquisition
conclusion
Conclusion
  • All three Agreements are more favorable to NFS than past PCAs
    • Corps has agreed to some improvements
  • Some additional improvements are still necessary
  • Negotiations are ongoing
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