JAMCRNJLagoonFill.pdf

Control No. NWP-15-012

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. CONTRACTING AGENCY: USACE Portland District (CECT-NWP-S), Supply/Services Branch, Portland Oregon

2. DESCRIPTION OF ACTION:

Portland District will have unavoidable fill impacts to aquatic resources located in waters of the U.S. while working on the Mouth of the Columbia River North Jetty Lagoon Fill and Culvert Replacement Project. No on-site mitigation is feasible.

To be in compliance with environmental laws (National Environmental Policy Act (NEPA)/Clean Water Act (CWA)) mitigation credits need to be purchased. The only mitigation bank that is located near the geographic area of the impacts and has the appropriate type of intertidal, estuarine mitigation credits is the McHugh Demonstration Estuarine Wetland Restoration Project Bank (McHugh Bank).

Approval is being requested for purchase of compensatory mitigation credits from the McHugh Bank using North Jetty Lagoon Fill funds from FY14 Operations and Maintenance appropriation funds. The estimated amount for the requirement, including fees, is approximately $138,525.00 for the purchase of 1.827 credits (the unit price of each one credit is $75,000, plus a $1,500 service fee).

3. DESCRIPTION OF SUPPLIES/SERVICES OR NATURE OF CONSTRUCTION:

a. This requirement is for supply of a estuarine mitigation bank credit. The McHugh Bank will be providing this credit.

The Portland District Corps of Engineers, Civil Works (Corps or NWP) has determined that the impacts to 5.537 acres of lagoon fill is unavoidable in the execution of the North Jetty Lagoon Fill and Culvert Replacement Project, and that compensatory mitigation is required.

b. The requiring activity is the Mouth of the Columbia River North Jetty Lagoon Fill and Culvert Replacement Project.

(P2# - 403890).

c. The purchase will fulfill estuarine mitigation requirements for permanent impacts caused by the project and will be effective into perpetuity.

4. AUTHORITY CITED: 10 U.S.C. 2304(c) (1), as implemented by FAR 13.106-1(b)(1)(i). Only One Responsible Source and no other supplies or services will satisfy agency requirements.

5. REASON FOR AUTHORITY CITED:

(1) Background: Pursuant to the Clean Water Act, 33 Code of Federal Regulations § 336.1(a), the Corps does not seek or obtain permits, in conjunction with its own activities, for loss of or impacts to wetlands or other aquatic resources falling within the scope of waters of the United States as defined under the Clean Water Act. In lieu thereof, the Corps applies all substantive legal requirements of the Clean Water Act, and evaluates the impacts of the pertinent water resources impacts under Section 404(b)(1) of the Clean Water Act, applying the Guidelines promulgated in the Clean Water Act, 40 Code of Federal Regulations Part 230.

In light of the preference expressed in the Clean Water Act, 33 Code of Federal Regulations §§ 332.3(a)(1) and (b)(2), for achieving compensatory mitigation through mitigation bank credits, and in light of the impracticability of developing and maintaining project-specific, on- or off-site mitigation, the Corps has determined that satisfaction of its compensatory mitigation obligations through acquisition of credits from the McHugh Bank is most advantageous, and that universal credits generated by the Bank are fully appropriate and sufficient mitigation for the Project’s impacts.

(2) Justification: In-kind mitigation is required. Currently, there is no other bank provider with a service area or mitigation credit type appropriate or applicable to the aquatic resource impacts (lagoon fill) and location of the Corps’ project. The McHugh Bank is in the same vicinity as the impact area, and also one of the few banks in the region with the appropriate estuarine mitigation credits types for intertidal impacts. The McHugh Bank is the sole provider of mitigation bank credits of the appropriate estuarine type, and with the appropriate geographical context, which are both similar and closest to the type and area of impacted aquatic resources, respectively.

The Interagency Review Team (IRT) (standing members represent the U.S. Army Corps of Engineers (Seattle District), U.S.

Environmental Protection Agency (EPA), and Washington State Department of Ecology (Ecology)), has regulatory jurisdiction to determine appropriate distribution of bank credits. Based on the Corps’ request for an exception, Ecology agreed to allow the Corps (NWP) to purchase credits from, and the Bank to sell credits outside of the Bank’s normal service area. This was done in order to accommodate the Corps’ unique needs for similar estuarine credits within the same geographic context and region. The Corps received approval of its Bank Use Plan, which is required for the McHugh Bank to release and the Corps to purchase appropriate mitigation credits (all banks must receive this approval before legally releasing mitigation bank credits).

The private mitigation bank, McHugh Bank has received bank approval and credits have been released through the Seattle District’s Corps Regulatory process. The IRT, Seattle Regulatory and the McHugh Demonstration Estuarine Wetland Restoration Project Bank signed a document finalizing bank establishment and requirements, which is memorialized in the McHugh Wetland Restoration and Mitigation Bank Proposal and Memorandum of Agreement, dated March 26, 1998 and subsequent related documentation.

(3) Impact: The project will be out of compliance with several of its environmental compliance requirements and commitments under both the Clean Water Act Sections 404 and 401, and under the National Environmental Policy Act, if these credits are not purchased. The Corps will have failed to fulfill its compliance duty to offset the unavoidable aquatic resource impacts that have occurred. This Bank is the only current supplier that is in the correct geographic area, has the correct estuarine credit types, and has been approved to release these credits for the Corps’ specific compensatory mitigation needs for this particular project and impacts. The North Jetty Lagoon Fill and Culvert Replacement Project has received a CWA Section 401 state water quality certification with conditions that require the Corps to purchase mitigation bank credits to compensate for unavoidable impacts to aquatic resources. The need to purchase bank credits is becoming more urgent as the project approaches execution in October 2014, because mitigation is typically required to be completed prior to or concurrently with impacts.

(4) Alternatives: There were no appropriate, alternative mitigation banks available from which to purchase credits. Not purchasing estuarine mitigation bank credits is an unacceptable alternative because it puts the Corps into non-compliance with its environmental documentation under the CWA and NEPA.

6. EFFORTS TO OBTAIN COMPETITION: Based on information in paragraph 5, above, competition for this action was not feasible. The McHugh Demonstration Estuarine Wetland Restoration Project Bank is the only current supplier that is in the correct geographic proximity, has the correct estuarine credit types, and has been approved to release these credits for the Corps’ specific compensatory mitigation needs for this particular project and impacts.

7. ACTIONS TO INCREASE COMPETITION: No action to increase competition can be taken at this time for reasons stated in paragraph 6.

The project is already reaching beyond the existing mitigation banking service area due to a lack of appropriate or available banking sources in the project area. There is only a single supplier in the near vicinity that has appropriate in-kind compensatory mitigation banking credits available and which has a service area that is in the geographic vicinity of the project footprint. The Corps is already requesting an exception to purchase outside of the normal service area of the Bank.

The type of estuarine, intertidal credits required for mitigation are generally constrained to coastal mitigation banks, which are limited to only a few in OR and WA.

8. MARKET RESEARCH: A Sources Sought was not issued due to the information provided in paragraph 5.

9. INTERESTED SOURCES: To date, the McHuch Bank is the only Bank near the project area that has both appropriate estuarine credits available and a service area that is in the same geographic setting as the project footprint. This is the only bank that has received approval to release the specific type and number of compensatory mitigation credits to the Corps for project impacts specific to the MCR North Jetty North Jetty Lagoon Fill and Culvert Replacement Project. The Corps had to request and receive approval from the regulating resources agencies in order to purchase bank credits.

10. Other Facts: Discuss any other facts supporting the use of other than full and open competition, such as the following:

a. Procurement history. Seattle District has purchased compensatory mitigation bank credits from a required source in the past. Portland District also recently purchased compensatory mitigation bank credits from a required source. Savannah, Charleston, and San Francisco District Offices were contacted in order to find similar purchases. No records of anything similar to this purchase were found. Savannah has purchased credits in the past but has done so through contractors working on projects, never directly. The unique nature of this project, its geographic remoteness to other mitigation banks, the limited nature of the mitigation off-set, the limited time available to offset environmental impacts and the rarity of similar purchases makes this current purchase justifiable as a sole source award.

(1) Contract numbers and dates of the last several awards. Contract Number W912DW-08-P-0316 was awarded on

12 Sep 2008 by the Seattle District; Contract Number W9127N-14-P-0020 was awarded on 11 March 2014 by the Portland District.

In the project for Seattle’s Chehalis Long Road Levee Repair the Seattle District purchased $15,261.37 worth of mitigation credits from the North Fork Newaukum Mitigation Bank, a WSDOT Bank. Unlike the current purchase, Seattle was required to go through the Mitigation Bank operated by the Washington Department of Transportation.

For the South Jetty Dune Stabilization Project, Portland District purchased $7,200.00 worth of mitigation credits from LBMB, Inc. to offset interdunal wetland impacts from the Mouth of the Columbia River South Jetty Dune Stabilization Project. Portland was required to go through the private mitigation bank operated by LBMB, Inc.

(2) The J&A used for the North Fork Newaukum Mitigation Bank was used because it was required source for credits. The J&A used for the LBMB, Inc. Mitigation Bank was used because it was required source for credits. The Authority previously used for the sole source justification was 10 U.S.C. 2304(c) (1), as implemented by FAR 13.106-1.

Only One Responsible Source and no other supplies or services will satisfy agency requirements.

(3) Prior J&A was prepared to support the procurement of previous contract for compensatory mitigation bank credits by Seattle District, a summary of the contents of paragraph 7 of the justification for that procurement can be found in paragraph 5 under items 1 through 3.

b. Acquisition data availability. The sole source contract is needed to meet environmental compliance obligations of

Portland District at MCR Noeth Jetty Lagoon Fill and Culvert Replacement Project. The contract with the McHugh Bank is necessary to ensure the project meets it compensatory mitigation requirements under the CWA and NEPA.

c. Unusual and compelling urgency. No urgency requirements are being utilized within this justification.

d. Subcontracting competition. Subcontracting opportunities are not applicable for this contract

11. TECHNICAL 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.

NAME:___________________________________ TITLE: ___________________________________

CAC SIGNATURE: ________________________________________________________________________

12. 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.

13. FAIR AND REASONABLE COST DETERMINATION:

I hereby determine that the anticipated cost or price to the Government for this contract action will be fair and reasonable.

Fair and reasonable pricing shall be determined by comparison of the new submitted prices compared to prices previously paid for the past acquisitions and against the Independent Government Estimate. Certified Cost or Pricing data will not be required.

14. CONTRACTING OFFICER CERTIFICATION:

"I certify that this J&A is accurate and complete to the best of my knowledge and belief."

APPROVAL

Based on the foregoing justification, I hereby approve the procurement of compensatory mitigation bank credit on an other than full and open competition basis pursuant to the authority of 10 U.S.C. 2304(c) and subject to the availability of funds, and provided the materials herein described have otherwise been authorized for acquisition.