JA Sole Source.pdf

Single Source Justification US Army Corps of Engineers, St. Louis District

FAR 13.106-1(b)(1), Simplified Acquisitions For purchases not exceeding the simplified acquisition threshold ($250,000)

1. Contracting Activity US Army Corps of Engineers, St. Louis District, Contracting Office

2. Description of Action The Melvin Price Underseepage Flood Control Project needs to purchase 5.85 wetland credits from a mitigation bank to offset the 4.92 Average Annualized Habitat Units (AAHU) of unavailable impacts associated with the construction of project features. It is USACE Policy that Civil Works programs demonstration that impacts to all significant ecological resources, both terrestrial and aquatic, have been avoided and minimized to the extent practicable, and that any remaining unavoidable impacts have been compensated to the extent possible. In addition, under Section 404 of the Clean Water Act, wetlands are protected habitat type and the alteration, or destruction, of wetlands require mitigation.

The Mel Price Design Deficiency project impacts significant ecological resources and mitigation requirements to offset those impacts were outlined in the Environmental Assessment as required in Section 906(d), Water Resource Development Act (WRDA) 1986 as amended by Section 2036, WRDA 2007 (33 U.S.C. 2283(d)); Section 1040, WRDA 2014; and Section 1162, WRDA 2016. The habitats impacted by features in the Design Deficiency Project and Emergency Interim Operating Plan include herbaceous wetland, scrub-shrub wetland, forested wetland, and deciduous bottomland hardwood forest. As required by Section 2036(a), WRDA 2007, approved USACE models were used to assess project impacts on these resources. The models included:

mink, slider turtle, and fox squirrel. Based on these models, the project impacted a total of 4.92 AAHUs.

The Mitigation Plan associated with the Environmental Assessment describes the mitigation alternatives for this project to include the potential construction of a mitigation site. The purchase of credits from an approved mitigation bank was not considered at that time because no mitigation bank existed. However, USACE Implementation Guidance for WRDA 2007 Section 2036(c) - Wetland Mitigation states that Civil Works Projects, where appropriate, are to first consider the use of a mitigation bank to compensate for wetland impacts that occur within the service area of an existing, approved mitigation bank. The Mel Price Underseepage Projects falls within the service area of one established wetland mitigation bank, Eberhardt Wetland Mitigation Bank (EWMB).

Section 1163 of WRDA 2016 and subsequent USACE Implementation Guidance provides guidance on the use of mitigation banks and in-lieu fee programs for mitigation for water resource development projects. As outlined in the Implementation Guidance, USACE shall consider the use of available and potential in-kind credits from mitigation banks and in-lieu fee programs as compensatory mitigation for unavoidable impacts to wetlands and other habitats resulting from the construction of a water resources development project.

Approved mitigation banks take the responsibility of creating, restoring, or enhancing wetland habitat to compensate for the Civil Works projects, helping to achieve a “no net loss” of wetlands goal. The mitigation credits obtained for this purpose include the acquisition of required lands, easements, and rights-of-way; construction and management activities to produce credits; and operation and maintenance of the bank.

A functional analysis of the potential credits at the EWMB was completed on 1 April 2021 following concurrence via webinar on the analysis from Illinois DNR and U.S. FWS – Carterville. According to the assessment, the EWMB has 46.97 net AAHUs. The USACE-MVS Regulatory Division approved the EWMB for 55.91 total potential credits. Therefore, there are

0.84 AAHU/Credit (46.97 AAHU/55.91 credits) at EWMB. The Mel Price Underseepage project would therefore need to purchase 5.85 credits to offset the 4.92 AAHU’s of unavoidable impacts.

The purchase of credits would result in a substantial cost savings compared to the mitigation alternatives considered in the Environmental Assessment. To obtain these credits, a Fixed-Price Supply contract will be created.

3. The rationale or circumstances for limiting competition Competition for this contract is limited, due to the nature of the mitigation credits. Each mitigation bank approved by the St. Louis Regulatory Branch has a specific service area. In addition, each bank has a set number of credits they can sell based on the size and quality of the bank, which is also determined by the USACE Regulatory Branch. The Melvin Price project falls within the service area of two mitigation banks: Fountain Creek Wetland and Stream Mitigation Bank and Eberhardt Wetland Mitigiation Bank. However, the Fountain mitigation bank only has

1.03 wetland credits available, which is insufficient for the Melvin Price project which requires

5.85 wetland credits. This means that the Eberhardt Wetlands Bank, LLC is the only option for obtaining the mitigation credits.

Additionally, Section 2036(c) of the Water Resource Development Act of 2007 states that Civil Works Projects, where appropriate, must first consider the use of a mitigation bank to compensate for wetland impacts that occur within the service area of an existing, approved mitigation bank. All Corps of Engineers Civil Works Projects are required by law to mitigate for impacts; therefore, the other option besides mitigation credits is to purchase farmland and construct the required mitigation. According to the Implementation Guidance for the WRDA of 2007 – Section 2036(c) Wetlands Mitigation (dated 06-Nov-2008), the purchase of credits from a mitigation bank removes the “responsibility for monitoring the mitigation measure, and demonstrating that the mitigation measure is successful,” rather putting that responsibility on the “owner or operator of the mitigation bank.” An approved mitigation bank has already completed the process of successfully restoring wetland acreage; therefore, the demonstrated achievement of wetland restoration means that there is considerabley less risk compared to Corps-constructed mitigation projects. The desired long-term outcomes have already been achieved and the land set aside to compensate for future impacts. As a result of these factors, it more efficient for the government to purchase the mitigation credits from an approved entity, rather than constructing and monitoring the mitigation in-house.

4. Market Research (MR) Market Research was done by researching the legal requirements for USACE Civil Works projects to mitigate for environmental impacts to wetlands during construction projects, as well as contacting Regulatroy. As referenced above, Section 2036(c) of the Water Resource Development Act of 2007 requires the USACE Civil Works Projects to compensate for wetland impacts. Mitigation banks, whose service area includes the location of the project, must first be considered if the bank contains sufficient available credits to offset the impact and if the bank is approved under applicable federal law. Regulatory advised that only one approved mitigation bank meets the service area requirement, and has the required number of Wetland credits available.

Additionally, the RIBITS (Regulatory In-Lieu Fee and Bank Information Tracking System) was consulted to verify the Mitigation Banks that the Melvin Price project is within the service area

of. According to the website, Eberhardt Wetland Mitigation Bank has 7.6 Wetlands credits available, which is sufficient for the requirements of the Melvin Price project. Meanwhile, it was also verified on the website that Fountain Creek Wetland and Stream Mitigation Bank only has

1.03 Wetland credits available.

5. Price estimate The estimated price per mitigation credit is $31,000, with the total cost for 5.85 credits being $181,350.00. This amount is derived from the cost estimate from the contractor.

6. Recommended source Eberhardt Wetlands Bank, LLC 16 Williamsburg Road St. Louis, MO 63141

7. Technical and Requirements Certification I certify that the supporting data under my cognizance which are included in the justification are accurate and complete to the best of my knowledge and belief.

Alison Anderson Ecologist

8. Contracting Officer Certification I certify that this justification is accurate and complete to the best of my knowledge and belief.

Jacob Prebianca Contracting Officer