Agenda Item   

AGENDA STAFF REPORT

 

                                                                                                                        ASR Control  22-000187

 

MEETING DATE:

09/13/22

legal entity taking action:

Board of Supervisors and Orange County Flood Control District

board of supervisors district(s):

All Districts

SUBMITTING Agency/Department:

OC Public Works   (Approved)

Department contact person(s):

Nardy Khan (714) 647-3906 

 

 

Fiona Man (714) 647-3953

 

 

Subject:  Approve Memorandum of Agreement with the U.S. Army Corps of Engineers

 

      ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Agreement to Form

Discussion

 

 

3 Votes Board Majority

 

 

 

    Budgeted: No

Current Year Cost: $55,755

Annual Cost: See Financial Impact Section

 

 

 

    Staffing Impact:

No

# of Positions:

Sole Source: N/A

    Current Fiscal Year Revenue: N/A

  Funding Source: Fund 400: 90%, Fund 115: 10%

County Audit in last 3 years: No

 

 

    Prior Board Action: 11/8/2016 #24, 1/29/2013 #32

 

RECOMMENDED ACTION(S):

 

Approve Memorandum of Agreement between the Orange County Flood Control District, the County of Orange and the U.S. Army Corps of Engineers, Los Angeles District in order to expedite the evaluation of priority project applications, in an amount not to exceed $914,270 effective upon execution of all necessary signatures, through September 30, 2029.

 

 

 

 

SUMMARY:

 

Approval of a Memorandum of Agreement with the U.S. Army Corps of Engineers is expected to streamline and accelerate the U.S. Army Corps of Engineers' regulatory permitting process under Section 404 of the Clean Water Act of 1972, as amended, and Section 10 of the Rivers and Harbors Act, as amended, permit application submittals and provide a more predictable timeline for obtaining permit authorizations in order to meet public needs through the delivery of priority flood, road and maintenance projects.

 

 

 

BACKGROUND INFORMATION:

 

The U.S. Army Corps of Engineers (Corps) has jurisdiction over most activities in Orange County's flood control channels pursuant to Section 404 of the Clean Water Act of 1972, as amended, and navigable waters pursuant to Section 10 of the Rivers and Harbors Act of 1899, as amended. 

Section 214 of the Federal Water Resources Development Act of 2000, Public Law 106-541 (WRDA), as amended and codified at 33 U.S.C. § 2352, authorizes the Secretary of the Army to accept and expend funds contributed by a non-federal public entity to expedite the evaluation of a permit for that entity related to a project or activity for a public purpose under the jurisdiction of the Department of the Army. The Secretary of the Army has delegated the responsibility of carrying out Section 214 of the WRDA to the Chief of Engineers of the Corps, and the Assistant Secretary of the Army has authorized District Engineers and Division Engineers of the Corps to accept and expend funds contributed by non-federal public entities.

Due to an on-going deficiency in staffing levels at the Corps and a significant increase in regulatory analysis required by federal policy, the length of time needed to obtain federal approvals is considerable. The large number of projects, combined with the Corps’ increased concern over endangered species, wetlands and new mitigation regulations have increased the Corps’ permit processing time. The result is a backlog of capital and maintenance projects awaiting a permit from the Corps.

 

A Memorandum of Agreement (MOA) has allowed the County of Orange (County) and Orange County Flood Control District (District) to provide funding to the Corps for the expedited regulatory review of the County and the District projects. Pursuant to the MOA, funds provided by the County and the District are expended by the Corps to provide staffing resources, which are exclusively dedicated to expediting permit application processing services for designated County and District priority projects. The Corps has established a separate, internal financial account to track receipt and expenditures of funds associated with its review of designated County and District permit applications. Additionally, the Corps has provided a brief quarterly summary report of progress made and costs incurred under the MOA.  

 

Prior Board of Supervisors (Board) and District actions related to the MOA with the Corps are summarized in the table below.

 

Date

Action

Amount

Effective Date

End Date

1/29/2013

Approved MOA

$400,000

3/15/2013

9/30/2022

11/8/2016

Approved Amendment No. 1 to the MOA

$600,000

11/8/2016

9/30/2022

 

The current MOA expires on September 30, 2022. In order to continue to provide a more predictable timeline for obtaining permit authorizations and meet public needs through the delivery of priority flood, road and maintenance projects, approval of a new MOA is required.

 

OC Public Works is recommending Board approval of MOA No. MA-080-17011073 with the Corps, in an amount not to exceed $914,270, effective upon execution of all necessary signatures, through September 30, 2029.

 

The Corps has provided the County and the District with an anticipated cost invoice that provides an updated budget estimate of costs for the next Federal fiscal year. The County and the District will make annual lump sum payments to the Corps of the total amount specified in the anticipated cost invoice prior to the Corps incurring any expenditure to expedite permit evaluation-related activities. The Corps carries-over any unobligated funds from year to year. Any party may terminate the MOA with 30 days' written notice.

 

Participation in Section 214 of the WRDA has noticeably streamlined the permit process, accelerated resolution of endangered species issues and provides a more predictable timeline for obtaining permit authorizations. The benefit to the County and the District has been a decrease of backlogged projects and permit coordination. Turnaround times have been reduced by approximately 50 percent. 

 

OC Public Works is requesting Board approval prior to the intended effective date of the MOA but less than 30 days prior to the expiration of the existing MOA. The Corps’ review process of the draft MOA took longer than expected. County Counsel has approved the MOA as to form and the Corps will not alter the terms of the MOA. The Corps will execute the MOA following receipt of a fully executed MOA from the County.

 

Compliance with CEQA: This action is not a project within the meaning of CEQA Guidelines Section 15378 and is therefore not subject to CEQA since it does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. The approval of this agenda item does not commit the County to a definite course of action in regard to a project since the MOA proposed herein is intended to streamline and expedite resource agency permitting process and review of designated County and District priority flood, road and maintenance projects. The proposed activity is therefore not subject to CEQA. Any future action connected to this approval that constitutes a project will be reviewed for compliance with CEQA. 

 

 

 

FINANCIAL IMPACT:

 

Appropriations for this MOA are not included in the FY 2022-2023 Budget for OC Flood, Fund 400, and OC Road, Fund 115. Budget adjustments will be included in the FY 2022-2023 Mid-Year Budget Report and appropriations will be included in the budgeting process for future years. The future funding source breakdown is estimated to be OC Flood Fund 400, 90 percent and OC Road Fund 115, 10 percent.

 

The MOA’s not to exceed amount of $914,270 does not include $60,000 of carryover balance from the existing MOA. The actual estimated cost from October 2022 through September 2029 is $854,270.

 

Anticipated Annual Costs:

FY 2022-23 $115,755 (or $55,755 with $60,000 carryover from the existing MOA)

FY 2023-24 $120,386

FY 2024-25 $125,201

FY 2025-26 $130,209

FY 2026-27 $135,417

FY 2027-28 $140,834

FY 2028-29 $146,468

 

The proposed MOA includes a provision stating the MOA is subject to, and contingent upon, applicable budgetary appropriations being approved by the Board for each fiscal year during the term of this MOA. If such appropriations are not approved, this MOA may be immediately terminated without penalty to the County.

 

 

 

STAFFING IMPACT:

 

N/A

 

 

ATTACHMENT(S):

 

Attachment A - Memorandum of Agreement No. MA-080-17011073 with the U.S. Army Corps of Engineers
Attachment B - Section 404 of the Clean Water Act of 1972, as amended
Attachment C - Section 10 of the Rivers and Harbors Act of 1899, as amended
Attachment D - Section 214 of the Federal Water Resources Development Act of 2000, Public Law 106-541, as amended and codified at 33 U.S.C. § 2352