CAP Section 1135

 Well, this is awkward.  You chose an authority that is unlikely to do what you need, is likely to be kicked out, will not compete well, and could conceivably get you in trouble.  

Section 1135 is to fix environmental problems initiated by the construction of federal projects.  So if a federal action has unintended ecological consequences, we can use this authority to address those consequences.

But here, the Federal project is a levee.

The levee has been overtopped, but serves the function.  And it is not the cause of the scour.  Or any other environmental problems in the area.  

So it seems an odd choice. 

Maybe return and try again?

Engineer and Planner - Site Visit and Database Upload

 You grab your favorite planner and your lead engineer and head out to the site.  The idea is to have a rapid iteration on site, just seeing if you can go through all of the planning steps quickly to vet the project.  And with there only being three of you (wait - are you the planner?  Aren't you going to invite the PM?), it should be good enough to go and visit the site and get a quick overview, identify some solutions, and bring it back for funding request.

The background information you have gotten since the first iteration is a mess. 

It took you fifteen steps, and five straight up denials, but eventually the plans for the Grade Control Structure were found.  TDOT had told you they didn't have any record of building the structure, but that any records they might have had were destroyed in a flood.  Eventually, the railroad provided you with the plans.  They were from Tennessee Department of Transportation.

Shelby County secured a HUD grant to address resiliency along Big Creek, but there are restrictions on combining funding streams from the Federal Government.  (Open discussion to follow about the wording in WRDA 22).

 

The whole thing is enough to make you start drinking.  But you persist, and finally get the MVD CAP Manager on the phone. 

Finally.

And he says, "Why don't we discuss this at the upcoming CAP Summit?  You want to host it this year?"

Walk with an Archaeologist

You show up at Big Creek with your archaeologist.  It was clearly a brilliant decision, since archaeologists are used to field work, and are always jumping at the chance to get out of the office.  They might even be able to get a car unstuck, if the mud from recent rains claims you.  Also, who knows authorities better than an archaeologist?  Between Crorey, John Peukert, Trent Stockton, Jim Wojtala, and Mike Renacker, there are more than enough examples of people who have started as archaeologists and become specialists in policy.   

Or, at least, lay claim to the title.  

After an unending car ride (was it only just 25 minutes?!) you exit the car and realize what a mistake this was.  The pile of dirt adjacent to Big Creek has pottery washing out of the scour.  There is clear evidence of previous occupation, and the cultural resource guy is not going to be able to let it go.

Fifteen years later, you are still talking about the next phase of the project.  

Maybe you should have chosen the team member who had solutions, rather than the one who was looking for problems.  Go back.

Introduction to Big Creek

You hear a sound IN THE HOUSE WITH YOU.

    If you choose to run out the front door, turn to page 23.

    If you go to the kitchen to investigate, turn to page 28.

Was there ever anything better than those books?  I loved them.  In the Choose-Your-Own-Adventure books, you chose a path, and got to find out what the consequence of your choice was.  It was almost a delicious precursor to the choices in role-playing games, and their early computer counterparts.

What follows is my own version of the Choose Your Own Adventure story, as one of our CAP projects fights its way through the process of getting the first steps completed for the project - with the goal of getting the project funded.

So the entries that follow essentially comprise a CYOA book.  Each decision point for the process will be a separate brief blog entry, to that show how your previous decision turned out.  In the process, you will see what we have worked out in the process. And if you manage to get a Letter of Intent and get the project funded, then you have won.

And if not, a back button will give you another chance. Let's get started:

**This is a very real fictional account of the interaction between the district CAP manager and a problem of a local community.  The problems mirror those of problems around the nation, and the conflict of how to help is more real than ever.***

You get a call from Shelby County, about the City of Millington, and they have a problem.  Big Creek - a stream immediately adjacent to the town - has a scour hole that has increased in size over the years.  There was a flood event in 2010 that caused $300M in damages, including to a Naval base.  There is a flood control levee See red text in picture below) adjacent to the scour hole that is threatened.  The levee was constructed by the Corps (OURS!) and is maintained by the City of Millington (O&M is THEIRS!)

Just at the eastern margin of the scour hole is the railroad bridge, and it is being threatened by the erosion.  

(Questions for consideration - is rail a public entity?  Or is it private?  Is it infrastructure we can protect?)

Right there at the railroad is a grade control structure that was installed under the CN Railroad. It is unraveling.  And doing so quickly.  Additional flood events will accelerate the process and increase the risk to the rail, to the residents, and to the federal investments of the levee.   

It is not clear who built the grade control structure - thankfully it is not one of ours, although if it were, we would have a mandate to address it.

Our big problem is authority here, complicated by the local sponsors and stakeholders. 

The City of Millington has the responsibility.

Shelby County has the responsibility.

The Railroad has the responsibility.

The flood protection levee is ours, and we hold some responsibility there.

Finally, there is a Highway, just upstream of the scour, where the Tennessee Department of Transportation has placed a highway and bridge, both of which are impeding the stream during high water events, as well. 

You get a call from the City, and they leave a voice mail, asking you to help address a water resource problem in your area.  Do you:

Pick up the phone and call them back?

Or, 

Go to the movies, and leave it for Monday.

CAP 206

 What?

Why in the world would you choose this authority?  It makes no sense.  You are trying to address erosion and flood risk issues, and you undertake the ecosystem part of the project?  

What kind of idiot are you?

But okay, if you say so.

But now what?  How do you turn this into an effective proposal for funding in the most competitive of our CAP authorities?  

Unless.... unless the erosion problem is the symptom and the ecosystem challenges are the root.  

The evaluation of the ecosystem benefits may work to address some of the other issues as well.  

Anyway, you have what you need.  Let's pull together some coordination funding and go out and see for ourselves.  

No Can Do Attitude

Sir, we have looked at the existing authorities, and there is just no way to make it work.

You type out the words, preparing the script to find the right words to soften the blow.  There are all of the right combinations here - there is infrastructure to protect, there are economic benefits to be gained, as evidenced by repeated flooding in the area, and  there are even possible life safety issues at stake. There are previous federal investments that can be addressed through resilient features.   There are ecosystem issues that need to be addressed.  If you were to look for the perfect project for the Corps to undertake, this would be the one.  

And you have run out of coordination funds, and the MSC lead is being a jerk and refusing to issue you more.  

This is a project that needs to be addressed systematically and with great care.  

And you have not succeeded in getting the project started. Your insomnia increases and you stare at the ceiling, wondering what you could have done to serve the people.  Maybe you would have been better as a bulldozer driver, just like your uncle said.  Or maybe a prison guard.

As a last resort, you decide to write up the results and ask a panel of participants at the annual (well, kind of annual) CAP workshop for brainstorming help.  

How do you proceed?

No, I'm really asking.  How do you proceed?

Office of Counsel - Make the Call

 "John Minor Wisdom, Office of Counsel."

"Um."

So starts your discussion with Office of Counsel.  You are off to a good start.  Ultimately**, you are turned back to planning - this is a policy decision, rather than a legal one - on whether the program is eligible for a combination of old and new projects.  BUT!

But there is a concern from your OC teammate about considering railroad companies as public infrastructure.  They serve a critical function, transport commodities and the public, but are NOT considered public infrastructure, and are not subject to protection from the CAP 14 program.  It doesn't rule out the use of Section 14, but might make it harder to capture the benefits.

So you didn't get any closer for having requested the help.  But at least you know that you are not worrying about a failed project resulting from not having a solid authority nailed down.  

Remind me again - why is there a set of scales here?  

So you go to the Regional Planning Chief for additional help, who asks why you didn't read the guidance for CAP.

"Wait, what?"

You open up your dog-eared copy of EP1105-2-58, turning to the pertinent page on Section 14 studies.  And sure enough, 

Well, crap.

Not only do you not have an authority you can use, you also managed to look like an idiot in front of the planning chief. Not quite an RGE (Resume Generating Event), but it is not a good look.  

Note to self, you can never go wrong with consulting the guidance first.  

Welp, I guess it is back to the Authorities Page.  

**For the record, this advice does not come from OC - I am just providing narrative.  For real answers, please consult your district office of counsel.

Letter of Intent

"Hey!  I think we can do some work here!"  You use your oiliest, best used-car salesman smile, and work on that super-sincere attitude you had learned from that previous supervisor you had.  It worked for him, after all.  He is now working at the MSC, and doesn't have time for your calls, carrying a briefcase for some SES.  

"I just happen to have an example you can use.  Just steal the text and put it on your letterhead, and Bob's your uncle!"  (Your old supervisor used to use those kind of colloquial expressions all the time.)

"Awesome," your local sponsor claims.  "But is this a Section 14 project?  Can't we get more money if we use a different authority?"

So, do you stick with the 14 authority?  

or do you

Offer other options?

CAP 14

 CAP 14 is the obvious choice.  With the combination of infrastructure (railroad) and residential impacts, there is clear reason to choose this option. 

So what is CAP 14?

"Authorized by section 14 of the 1946 Flood Control Act, as amended. Work under this authority allows emergency streambank and shoreline protection for public facilities, such as roads, bridges, hospitals, schools, and water/sewage treatment plants, that are in imminent danger of failing.  The non-Federal sponsor is responsible for a minimum of 35% to a maximum of 50% of total project costs and the Federal Government is responsible for the remainder of total project costs.   The Federal share of planning, design, and construction cannot exceed $1,500,000 per project." 

You hustle to read the CAP guidance like the burrocratic automaton that you are, and you see the following:

Wooohoo! The addition of a §14 project to protect the 205 project is authorized.  

Okay.  this is about what we expected.  We are not really combining any of the authorities, at least not at one time.  But the problem may arise that the perception of the authorities being combined to address the problem might make it seem like we are doing that.  Better check with OC.  Or you can read further and find out whether there is additional guidance.  After all, you haven't even gotten to that 8b mentioned above.  

Drat.  This means that you have to get a full call from OC as to whether the original authorization of the existing project is considered a building block.  I mean... the time delay between the original project and the proposed action makes it unlikely that there is a nexus, but...

What do you do?

Call OC,

or, 

Call the whole thing off.  The Local Sponsor will have to get specific authorization or will have to come up with the money themselves.  

Starting Off, Big Creek

The local sponsor calls you and wants you to come and see the problem that the county is having.  It sounds complicated, with railroads and streams and old levees and erosion and scouring and lots of economic damage.  You listen with a sympathetic ear; after all, you are with the Federal Government, and you are here to help.

Some of the features he mentions in his discussion sound familiar, and they are a short car ride away - about an hour drive, with traffic.  You take a look with googleearth and create a quick .kmz file with a rough outline.  Zooming in, you see the following:

You export the file into the https://www.epa.gov/ejscreen browser, and determine that there is no preference for disadvantaged communities.  

Your local partner asks you a question again, and you start, realizing you were multi-tasking and had not heard the question, either the first or the second time.  You apologize, and ask for a third repeat of the question.  

"I said, 'Do you think there is a project here?'"

You choose to:

Enthusiastically say yes. And ask for a letter of intent. 

Waffle a little, and discuss the authorities that might be able to be used. 

Take a breath, and ask if you can get back to him. 

Authorities Decision

Well, crap.  At some point, you just have to hang it all on the line and decide. So you open your handy-dandy pamphlet 
and look at the options.  And at some point, you have to PICK ONE.

Ecosystem projects: 

Description of 206 - Aquatic Ecosystem Restoration, Water Resources Development Act of 1996 (PL 104303), as amended.   Is there anything here that feels like an Ecosystem restoration?  

Description of 1135 - Project Modifications for Improvement of the Environment, Water Resource Development Act of 1986 (PL 99-662), as amended.   So there is a Federal project adjacent, and this almost seems like the right decision.  But it is not the eco link that we are looking for.  But maybe... #link

Section 204 - Beneficial Uses of Dredged Material, Water Resources Development Act of 1992 (PL 102580), as amended. Nothing here like that.  But if you want to, you can click on this link. It is always nice to learn about other authorities.

But wait.  Isn't this a Flood risk Management project? 

Section 205 - Flood Control Act of 1948 (PL 80-858), as amended, for flood control. This project is flood control related - when the river got out of the bankline in 2010, there was a large amount of damage to nearby homes - $300M and more.  There have been floods for a number of the previous 20 years, and the flooding period seems to be accelerating.  #link

Or maybe a CAP 14

Section 14: Flood Control Act of 1946 (PL 79-526), as amended for emergency streambank & shoreline erosion protection for public facilities & services. 

This one is probably the right choice.  There are public facilities (railroad) and the erosion of the streambank makes it the likely choice.  

Site visit

 A site visit will definitely help understand the on-the-ground issues better than anything else.  You coordinate with the local sponsor and prepare the visit.  There will be a little bit of walking, but a nice day in the field always beats a day in the office, doesn't it?

In preparation, you need to decide who is coming.  You, as the CAP lead, will obviously be coming - you know the authorities, and can work out the next steps.  You decide to take with you:

The project engineer and the planner #link

The Project engineer, the environmental lead, the hydraulic engineer, the planner, and the real estate lead.   

Or, 

The project engineer and the archaeologist 

Take a breath

 "You know, let me have a quick conversation with the CAP manager, and see whether he thinks we have a viable project." 

The NFS hangs up, and you send an SOS message through MS Teams to your friendly neighborhood MVD CAP manager, who is on vacation for two weeks in the Greek aisles (much more affordable than a real trip to Greece), and is out of wifi range.  His Out-of-Office memo explains his situation and tells you to pound sand until he gets back.  

You can:

Wait two weeks (well, now ten days, since he has already been gone a weekend plus two working days), and call him again, or

Go back to the authorities page. 

Site Visit Participants, Full Krewe

 Yep, you have busted the project before you started.  With even 6 hours for the site visit, and two hours for evaluation, you have spent more than the program provides in coordination budgets.  For the whole year.  The CAP Division manager is furious, and you are being explained - in detail - what an Anti-Deficiency Act violation is by Office of Counsel.  Who is, for the most part, just upset that they were not invited on the field day.  

<Insert Price is Right Sad Trombone soundclip >>here<< >

Return to decide again on how to plan your site visit.