15-day notice (comment period extended)
Original issue date: October 1, 2013
Extension date: October 22, 2013
Expiration date: October 29, 2013
Corps reference: PM-F-ODOT-2013
This Public Notice announces the preliminary intent of the U.S. Army Corps of Engineers’ Portland District to accept funds from the Oregon Department of Transportation for the Columbia River Crossing Project for the review of two Section 408 permits to modify or alter a portion of Peninsula Drainage District 1 and 2 federal flood protection systems and to modify the federally authorized navigation channel in the Columbia River near the existing Interstate 5 bridge.
Portland District would allocate funds internally and to other supporting Corps district to expedite the Department of the Army processing of an Oregon Department of Transportation-proposed request to modify a federal flood protection system (levee) and federally authorized navigation channel in accordance with Section 408, subject to a series of limitations specified below.
The Corps may accept and expend these funds pursuant to Section 214 of the Water Resources Development Act of 2000 (Public Law No. 106-541), as amended, which provides that the Secretary of the Army, after public notice, may accept and expend funds contributed by a non-federal public entity to expedite the evaluation of a permit of that entity related to a project or activity for a public purpose under the jurisdiction of the Department of the Army. In doing so, the Secretary must ensure that the use of such funds will not impact impartial decision making with respect to permits, either substantively or procedurally. The authority provided in Section 214 is in effect from October 1, 2000 to December 31, 2016.
The Secretary of the Army has delegated this Section 408 approval responsibility to the Chief of Engineers and his authorized representatives, including district commanders of the U.S. Army Corps of Engineers.
Authorized representatives of the Corps’ Portland District Commander are negotiating an agreement with ODOT to accept and expend funds to expedite review and evaluation of a Section 408 request to modify a federal flood protection system and federally authorized navigation channel.
33 USC § 408 provides authority to the Secretary of the Army to grant permission for the alteration or modification of Corps projects when in the judgment of the Secretary such alteration or modification will not be injurious to the public interest and will not impair the usefulness of the project.
Definition of non-federal public entities: Non-federal public entities are defined for Section 214 purposes as state and local governmental agencies and Indian tribal governments. ODOT meets this definition.
How the Portland District’s acceptance of funds from ODOT is expected to expedite the processing of the Columbia River Crossing’s Section 408 request to modify a federally constructed flood risk reduction project and modification of the federal channel. The Corps’ Operation and Maintenance Inspection of Completed Works program and Channels and Harbors program are funded through the Corps’ Civil Works program in the annual federal budget. Funding within the Inspection of Completed Works program and the Channels and Harbors fund is insufficient to completely fund the technical and policy reviews required for the Chief of Engineers’ approval of major modifications to federally constructed flood risk reduction projects and navigation channel undertaken under 33 U.S.C. Section 408. The Portland District would receive additional funds from ODOT and would add those funds to the Operation and Maintenance budgets and Inspection of Completed Works budget of the Portland District, in accordance with the provisions of Section 214 of WRDA 2000, as amended.
Activities for which funds will be expended: Funds would be expended primarily on the direct labor and overhead of Corps’ Civil Works personnel evaluating the engineering plans, specifications and reports prepared by engineering consultants to the CRC project. Such review and processing activities would include, but not be limited to, the following: technical analyses and writing, real estate evaluation, risk analysis, copying or other clerical/support tasks, acquisition of GIS data, site visits, travel, coordination activities, additional personnel (including support/clerical staff), technical contracting, environmental documentation preparation and review in support of the Section 408 permit review process. Funds will not be used for drafting, negotiating or issuing any necessary real estate instruments.
Funds provided by ODOT that remain unexpended at the Corps’ acceptance of the completed modification will be returned to ODOT. If at any time during the review and approval process the CRC project wishes to withdraw their request to modify the flood risk reduction project and or the federal navigation channel, the Corps will return unexpended funds to ODOT.
Procedures to be used to ensure impartial decision-making: Approval of the ODOT Section 408 permit applications has been determined to be at the Director of Civil Works level. To ensure the funds will not impact impartial decision-making, the following procedures would apply:
a. No funds received under a Section 214 agreement shall be expended for the District Commander or the Division Commander’s consideration and recommendation to the Director of Civil Works regarding the CRC project Section 408 request to modify a federally constructed flood risk reduction project and federal navigation channel.
b. Draft technical documents, draft decision and recommendation documents resulting from the use of funds obtained from ODOT under Section 214 will be reviewed and signed by a reviewer who is not funded by funds received under Section 214 for the CRC project permit application.
c. All final permit decisions for cases where Section 214 funds are used will be made available on the Portland District website, www.nwp.usace.army.mil.
d. The Corps will not eliminate any procedures or decisions that would otherwise be required for that type of project and permit application request under consideration.
e. The Corps will comply with all applicable laws and regulations.
f. Section 214 funds will only be expended to provide priority review of the participating non-federal entity’s permit request to modify a federally constructed flood risk reduction project and federal navigation channel and if approved by the Director of Civil Works, Section 214 funds will also be expended to monitor the construction activities in order to render Corps acceptance of the modifications.
Impacts to the Civil Works Program: The Corps does not expect priority review of the CRC project to negatively impact the District’s Civil Works Programs, or to increase the time for evaluations of other projects.
Consideration of Comments: The Corps is soliciting comments from the public, federal, state and local agencies and officials, and other interested parties on the proposed acceptance and use of funds using the Section 214 authority. Comments will be part of the record, and considered in determining whether it would be in the public interest to proceed with this action. If the Portland District commander determines, after considering public comments, that the acceptance and expenditure of the funds is in compliance with Section 214 of WRDA 2000 and is not otherwise contrary to the general public interest, the Portland District will implement Section 214 of WRDA 2000, as amended, through a signed Inter-Governmental Agreement and accept the funds from ODOT.
Provided that the purpose for accepting funds remains the same as that described in this notice, a new public notice is not required in the event that the IGA is amended to extend the term of the agreement; to modify the list of priority projects identified in the IGA; or to adjust the terms of the annual advance payment contemplated under the IGA.
Comments: Interested parties may submit, in writing, any comments concerning this proposal. Comments should refer to Proposed Acceptance of Funds from ODOT for CRC Project (PM-ODOT-2013) and the date of this Public Notice, and be postmarked by the comment due date. Comments must be sent to:
U.S. Army Corps of Engineers, Portland District
ATTN: Dominic Yballe
333 SW 1st Ave
P.O. Box 2946
Portland, OR 97204-3495
Alternatively, comments can be sent electronically to: Dominic.P.Yballe@usace.army.mil. Message subject MUST SAY: Public Notice PM-F-ODOT 2013.
For additional information, call Dominic Yballe at 503-808-4392. This public notice is issued by the U.S. Army Corps of Engineers, Portland District