A_03_09_JA-MCR-JettyARehab_LBMB_062016.pdf

Control# 16-038

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 impact wetlands while conducting scheduled repairs on the Mouth of the Columbia River Jetty A, which is part of the major rehabilitation of the jetties at the Mouth of the Columbia River (MCR). 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 proximate to the geographic area of the impacts, has an approved exception to the service area coverage, and has appropriate wetland credit types is the Long Beach Mitigation Bank, Inc. (LBMB).

Approval is being requested for purchase of compensatory wetland mitigation bank credit using Jetty A Rehabilitation funds from FY16 Construction General appropriation funds. The estimated amount for the requirement, including fees, is approximately $24,000 for the purchase of 0.28 credits (the unit price of each one credit is $75,000, plus a $3,000 adminstrative service fee).

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

a. This requirement is for supply of a wetland mitigation bank credit. LBMB, Inc. will be providing this credit. The Portland District Corps of Engineers, Civil Works (Corps or NWP) has determined that the impacts to 0.01 acres of wetlands and 1.35 acres of critical buffers are unavoidable in the execution of the Jetty A Rehabilitation Project, and that compensatory wetland mitigation is required to be in compliance with environmental laws (National Environmental Policy Act (NEPA)/Clean Water Act (CWA)). The Corps is required to acquire 0.28 credits from the Bank, in compensation for the Project’s anticipated 0.01 acre of wetland impacts and applied the ratio of 1:1, credits per acre of Category III wetlands impact, and 20% ratio for 1.35 acres of wetland buffer impacts as provisionally prescribed in Appendix E, Sections E.2 and E.3 and Table E.2 of the LBMB Mitigation Banking Instrument (MBI).

b. The requiring activity is the Mouth of the Columbia River Jetty A Rehabilitation Project. (P2# - 403198).

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

4. AUTHORITY CITED:

FAR 13.106-1(b)(1)(i). Contracting officer may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available.

Procedures in FAR subpart 13.5 were used in accordance with 41 USC 1901

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 (CFR) Part 230.

In 2008, the Environmental Protection Agency and the USACE issued the joint Final Rule for Compensatory Mitigation for Losses of Aquatic Resources under Section 404 of the Clean Water Act (73 FR 19594). The final rule stated a preference for the use of mitigation banks, when available, over permittee-responsible on-site/off-site wetland mitigation for development projects. The Corps’ use of this approach is further supported by Section 2036 (c) of the 2007 Water Resources Development Act (Public Law 110-114) as well as 33 CFR 332.3(j)(1) and 40 CFR 230.93(j)(1).

Per 33 CFR § 336.1(a) the Corps applies all substantive legal requirements of the CWA, applying the guidelines promulgated in 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 wetland mitigation obligations through acquisition of credits from the Long Beach Mitigation Bank (LBMB) 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 bank provider with a service area or wetland credit type appropriate or applicable to the wetland impacts and location of the Corps’ project. LBMB is the nearest bank to the impact area, and also one of the few banks in the region with proximate service area coverage and the appropriate wetland mitigation credits types for interdunal wetland impacts. LBMB, Inc. is the sole provider of mitigation bank credits of the appropriate wetland type, and with a proximate service area coverage, which are both similar and closest to the type and area of impacted wetlands, respectively. There is no mitigation bank with approved service area coverage in the area of impacted wetlands. However, the LBMB service area is immediate adjacent to the Jetty A impacted wetlands. Therefore, the Corps must request and receive an approved exception in order to purchase and provide mitigation credits for impacts outside of a bank’s approved service area. This approach was deemed appropriate because the LBMB service area: is immediately adjacent to the project site; is connected to the project site area by a relatively undisturbed and unbroken vegetative corridor;

is identified within the same WRIA basin; has inkind wetland credits available; and is similarly hydrologically situated. The Corps requested and was granted approval of its mitigation and Bank Use Plan requesting an exception to the LBMB service area coverage in order to purchase credits for impacts outside of the geographical extent of the LBMB service area.

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, the IRT and Ecology agreed to allow the Corps (NWP) to purchase credits from, and the Bank to sell credits outside the Bank’s normal service area. This was done in order to accommodate the Corps’ needs for similar wetland credits within the same geographic context and region. The Corps received approval of its Bank Use Plan, which is required for the LBMB, Inc. 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, LBMB, Inc. has received bank approval and credits have been released through the Seattle District’s Corps Regulatory process. The IRT, Seattle Regulatory and LBMB, Inc. signed a document finalizing bank establishment and requirements, which is memorialized in the Long Beach Wetland Mitigation Bank Mitigation Bank Instrument (MBI).

FAR Part 13.106-1(b)(1)(i) does not require that LBMB be the only souce available, but the only source “reasonably” available. For the reasons stated above, and the significant regulatory action that has been taken in support of this purchase, the Contracting Officer determines the LBMB is the only “reasonable” source of these mitigation credits.

(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 wetland impacts that will occur. This Bank is the only current supplier that is in the correct geographic service area, has the correct wetland credit types, and has been approved to release these credits for the Corps’ specific compensatory wetlands mitigation needs for this particular project and impacts. The Jetty A Rehabilitation 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 wetlands. The need to purchase bank credits is becoming more urgent as the project approaches execution in January 2016, 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 wetland 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. Long Beach Wetland Mitigation Bank is the only current supplier with a bank service area that is in the correct geographic proximy, has the correct wetland credit types, and has been approved to release these credits for the Corps’ specific compensatory wetlands 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.

There is only a single supplier in the near vicinity that has appropriate in-kind compensatory wetland mitigation banking credits available with a service area within geographic proximity to the project footprint. The type of interdunal wetland credits required for mitigation are generally constrained to coastal mitigation banks, which are limited to only a few in OR and WA. Mitigation bank service areas are set by the IRT and relate to coverage within the same watershed where impacts occur. 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 interdunal 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, LBMB, Inc. is the only Bank near the project area that has both appropriate interdunal wetland credits available and a service area that overlaps the project footprint. This is the only bank that has received approval to release the specific type and number of compensatory wetland mitigation credits to the Corps for project impacts specific to the MCR Jetty A Rehabilitation Project. The Corps had to request and receive approval from the regulating resources agencies in order to purchase bank credits.

10. Other Facts::

a. Procurement history.

For the South Jetty Dune Stabilization Project, Portland District purchased $8,700.00 worth of mitigation credits from LBMB, Inc. to offset similar 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.

For the North Jetty Lagoon Fill Project, Portland District purchased $20,025.00 worth of mitigation credits from LBMB, Inc. to offset similar interdunal wetland impacts from the Mouth of the Columbia River North Jetty Lagoon Fill Project.

Portland was required to go through the private mitigation bank operated by LBMB, Inc.

b. Acquisition data availability.

Contract ID Award/IDV Type Vendor Name Date Signed Action Obligation ($)

W9127N14P0020

PURCHASE

ORDER LBMB, INC. 21 Mar 14 $8,700.00

W9127N15P0004

PURCHASE

ORDER LBMB, INC. 21 Jan 15 $20,025.00

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

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

11. PRICE FAIR AND REASONABLE For purchase W9127N-15-P-0004 cited above an extensive comparison of the mitigation bank cost per acre and compariable properties was conducted. This previous comparision, approved by the contracting officer is included as supporting documentation in the contact file for this action. At the time of the preparation of that document the cost per acre ($75,000.00) was determined to be fair and reasonable. That price has not changed, and market conditions for this location have not changed in the last twelve months. Mitigation credits are a commercial item marketed to both governmental and non-governmental entities (http://eco-land.com/?cat=4) and the prices are publicly announced and also regulated by the entities in paragraph 5(2) above. Therefore, the price for this mitigation credit, including the $3,000.00 administrative fee, is considered to be fair and reasonable.

12. 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:

13. 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.

NAME: TITLE:

CAC SIGNATURE:

14. 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.

NAME: TITLE:

CAC SIGNATURE:

15. CONTRACTING OFFICER CERTIFICATION:

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

NAME: TITLE:

CAC SIGNATURE:

Barbara Cisneros Environmental Resource Specialist

CISNEROS.BARBARA.G.1386256736

Digitally signed by CISNEROS.BARBARA.G.1386256736 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=CISNEROS.BARBARA.G.1386256736 Date: 2016.06.21 15:20:22 -07'00'

OTTO.JERRY.L.1163946

Digitally signed by OTTO.JERRY.L.1163946854 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=OTTO.JERRY.L.1163946854 Date: 2016.06.21 15:40:45 -07'00'

JONES.CLOVIA.S

UE.1085745146

Digitally signed by

JONES.CLOVIA.SUE.1085745146

DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=JONES.CLOVIA.SUE.1085745146 Date: 2016.06.22 08:31:58 -07'00'

APPROVAL

Based on the foregoing justification, I hereby approve the procurement of compensatory wetland mitigation bank credit on an other than full and open competition basis pursuant to the authority of FAR Part 13.106-1(1)(b)(i) and subject to the availability of funds, and provided the materials herein described have otherwise been authorized for acquisition.

NAME: TITLE:

CAC SIGNATURE: