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Presented to the Coastal Protection and Restoration Authority July 11, 2008

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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Presented to the Coastal Protection and Restoration Authority July 11, 2008

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  1. 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

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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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