EP 1165-2-1
30 Jul 99
where the utility owners are compelled to relocate under permit
conditions, the non-Federal sponsor is responsible for one-half of the
cost of these deep draft utility relocations. Administrative and any
legal costs incurred by the Corps to compel deep draft utility
relocations would be shared 50/50 between the non-Federal sponsor and
the utility owner.
(4) Removals. The cost of removal of facilities (i.e., those
not being relocated) which are located on fastlands are considered to
be part of GNF costs, to be cost shared accordingly. However, the
cost of acquiring such facilities, so that they may be removed, is
part of the sponsor's LERRD responsibility. Where there is an
obstruction to a navigation project that is within the navigation
servitude, and that obstruction does not fit within the definition of
a relocation as discussed in paragraph 10-4 or a deep draft utility
relocation as presented in paragraph 10-4.b.(3), the obstruction will
be removed at owner cost to accommodate the navigation project. If
facilities exist which are partially located on fastland and partially
subject to the navigation servitude, a reasonable allocation of costs
will be made between owner costs and relocation or GNF costs as
appropriate.
(5) Removal Responsibility. Where the non-Federal sponsor has
the capability to compel the owner of a facility obstructing a
navigation project to remove the facility solely at owner cost, the
non-Federal sponsor will exercise this capability. The capability of
the non-Federal sponsor to successfully compel the removal of
facilities at owner cost will be jointly assessed by the Corps and the
non-Federal sponsor. Factors in this assessment will include the
legal authorities available to the non-Federal sponsor and their
strength, the applicability of the non-Federal sponsor's authorities
to the Federal navigation project and the record of success in
exercising the non-Federal sponsor's authorities. The non-Federal
sponsor may also elect to directly negotiate with the owner of a
facility obstructing a navigation project for the removal of the
facility in lieu of exercising any non-Federal sponsor or Corps
authorities to compel the facility removal at owner cost. However,
any payments or reimbursements by the non-Federal sponsor to the
facility owner for the removal of the facility would not be creditable
against the non-Federal sponsor's required additional 10 percent
repayment under Section 101(a)(2) of WRDA 1986, as amended. In the
event it is determined that the non-Federal sponsor does not have the
capability to compel the owner of a facility obstructing a navigation
project to remove the facility at owner cost and the non-Federal
sponsor does not elect to directly negotiate with the facility owner
for the removal of the facility, the Corps will exercise its rights
under the navigation servitude and any applicable Corps permit
conditions to require the owner to perform the removal of the facility
at the owner's expense.
(6) Accounting for Removal Costs. When a facility is removed
at owner cost, the facility removal cost and any cost to replace the
facility at a new location (for example at a greater depth) will be an
owner cost. The administrative and legal cost to the non-Federal
sponsor or the Corps of requiring the owner to remove the obstruction
will be considered GNF costs and shared accordingly. Corps regulatory
program funds will not be used for accomplishing removals or
permitting owner replacements of removed facilities. Costs to the
owner of a facility for its removal and any owner replacement costs,
including any costs voluntarily paid or reimbursed by the non-Federal
sponsor, will be accounted for as associated costs of the project and
are not shared GNF costs nor non-Federal sponsor costs for lands,
10-13
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