APPENDIX C REAL ESTATE PLAN BOULEVARD RESACA, BROWNSVILLE, TX CAMERON COUNTY, TEXAS

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1 APPENDIX C REAL ESTATE PLAN BOULEVARD RESACA, BROWNSVILLE, TX CAMERON COUNTY, TEXAS November 19, 2016

2 Table of Contents Purpose... 3 Project Authority... 3 Project Location and Description... 3 Non-Federal Sponsor... 3 Real Estate Requirements... 4 Sponsor Owned Property... 4 Navigation Servitude... 4 Mitigation Feature... 5 Borrow Material... 5 Access/Staging... 5 Recreation Feature... 5 Project Induced Flooding... 5 Baseline Cost Estimate... 5 Public Law Relocation Assistance... 5 Mineral Activity that May affect the Project... 5 Assessment of the NFS s Legal and Professional Capability... 6 Zoning... 6 Description of Facility or Utility Relocation... 6 HTRW or Other Environmental Contaminants... 6 Landowner Opposition... 6 Risks Associated with Acquiring Land Before the Execution of the PCA... 7 Description of Any Other Real Estate Issues Relevant to Planning, Designing, or Implementing the Project Land Acquisition Schedule Exhibit A: Map... 8 Exhibit B: Surveys Exhibit C: Assessment of Non-Federal Sponsor s Real Estate Acquisition Capability Exhibit D: Not Used P age

3 Purpose This report is intended to supplement the integrated feasibility study-environmental assessment for Boulevard Resaca, Brownsville, Texas. The purpose of this study is to develop an ecosystem restoration plan to restore degraded ecosystem structure, function, and dynamic processes to a less degraded, more natural condition. The Real Estate Plan is tentative in nature; it is for planning purposes only and both the final real property acquisition lines and the real estate cost estimates provided are subject to change even after approval of this report. Project Authority Resolution of the Committee on Transportation and Infrastructure of the United States House of Representatives dated 10 November The final resolution reads as follows: Resolved by the Committee on Transportation and Infrastructure of the United States House of Representatives, that the Secretary of the Army is requested to review that report of the Chief of Engineers on Louisiana and Texas Intracoastal Waterway, Corpus Christi, Texas to the Rio Grande, published as House Document No. 402, 77 th Congress, 1 st Session, and other pertinent reports to determine the feasibility of providing improvements to the Resacas in the vicinity of the City of Brownsville, Texas in the interest of flood control, watershed management, environmental restoration and protection, water quality, and other allied purposes. Project Location and Description The study area encompasses the Resaca and adjacent lands between Belthair Street and a weir located at the south end of the Resaca, covering approximately 25.4 acres. The project intent is to restore the Resaca Boulevard Resaca by removing invasive plant species, moving earth to re-grade the bank to a gentler slope that would be less prone to soil erosion during rainfall and high water events, and replanting vegetation native to the system. Once the bank is re-graded and stabilized, native vegetation will be planted along an approximately 30-foot wide corridor along the Resaca bank. Approximately 5 acres along the bank will be restored. Approximately 15 feet of this width will be within a submerged and/or intermittently submerged zone and will include wetland plant types that are native and will provide critical habitat for a variety of fish species, amphibians, wading birds and other native fauna. The remaining 15 feet are along the high bank and will form a riparian corridor. This area would be vegetated with native plant species beneficial to a variety of local and migratory birds. The site is located within the central flyway, one of the major migratory bird paths in North America. The Resacas are the major source of freshwater for these birds in Cameron County. The newly vegetated Resaca bank will aid in further stabilizing the bank with the root systems of plants to minimize erosion, and will also assist in improvements to water quality. (See exhibit A ) Non-Federal Sponsor The District Engineer, Galveston District, U.S. Army Corps of Engineers (USACE), is responsible for the overall management of the study and report preparation. The City of Brownsville is the Non-Federal sponsor for the study and construction of the project. The City of Brownsville was founded in 1848 and finally incorporated in The City of Brownsville is the entity responsible for the acquisition of the Lands Easements, Right-of-Way, Relocation and Disposal Areas (LERRD) for this project. 3 P age

4 Real Estate Requirements West Bank of Resaca The NFS is required to have fee title for ecosystem restoration projects (Engineering Regulation [ER] ; 12-9). Fee title or Fee Simple Estate is defined by The Dictionary of Real Estate Appraisal, fifth edition, as: Absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat. The City of Brownsville owns acres on the west bank of the Resaca that was conveyed by the following two deeds and are illustrated on the survey which can be found as exhibit B. The property was not purchase with Federal Funds. A. Houston and Brownsville Development Company conveyed 76.4 acres to City of Brownsville dated 25 of November 1933 (Vol 253 Page 93) with the following restriction: It being distinctly understood and agreed that all of above property is conveyed and is by the city accepted for use as public parks, and playground, for roads and streets, for drainage and other related public purposes and shall always be used and maintained for such purposes. B. Deed from Sisters of the Incarnate Word Convent of Brownsville To City of Brownsville for 7.58 acres of land dated 12 January 1934 (Vol 253 Page 103) with the following restriction: Purpose of roads, streets, parks and drainage; and it is further stipulated that no public playground or public recreation places whatsoever are to be maintained or permitted on the aforesaid tract of 7.58 acres The sponsor has agreed to condemn its property to clear title. Sponsor Owned Property Property for this project is owned by the City of Brownsville and was not purchased with Federal funds. The federal government does not have any property interests within the project footprint. Navigation Servitude Navigation servitude is the dominant right of the Government under the Commerce Clause of the U.S. Constitution (U.S. CONST. Art. I, 8, cl.3) to use, control and regulate the navigable waters of the United States and the submerged lands hereunder for various commerce-related purposes including navigation and flood control. In tidal areas, the servitude extends to all lands below the mean high water mark. In non-tidal areas, the servitude extends to all lands within the bed and banks of a navigable stream that lie below the ordinary high water mark. United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917), Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). The Government s rights under the navigation servitude exist irrespective of the ownership of the banks and bed of a stream below the ordinary high water mark and irrespective of western water rights under 4 P age

5 prior appropriation doctrine. There is no land subject to navigation servitude within this project. Mitigation Feature No environmental mitigation will be required for the Recommended Plan. Borrow Material The proposed Project does not require the acquisition of any borrow material. Access/Staging All land that will be crossed is owned by the NFS and is available for this project. Recreation Feature The proposed Project does not have any recreation features. Project Induced Flooding No Project induced flooding will result from the construction of the Project. Baseline Cost Estimate The City owned property will have to be condemned to clear title. Due to the age of the tract acquisition, it is assumed that the condemnation will be uncontested. The estimated costs of acquisition is on the Real Estate baseline cost listed in Exhibit D. Public Law Relocation Assistance There are no persons or businesses that will need to be relocated due to project implementation. Mineral Activity that May affect the Project The NFS does not own the mineral rights within the project footprint. The potential risks to the government associated with the NFS not owning the mineral rights are sufficiently mitigated and there is no anticipated effect to construction, operation, or maintenance of the project. The City of Brownsville has to approve all oil wells within the city limits. According to City Ordinance Sec (b) a permittee shall not interfere with or damage existing water, sewer, or gas lines; the facilities of public utilities; or any other improvement or facility located on, under or across the course of such rights-of-way. The City of Brownsville will not issue a permit for mineral extraction on City owned property, especially in a densely populated area of the city, such as the project area. Accordingly, the additional costs and time associated with the NFS acquiring the mineral rights far outweigh the risks to the government. 5 P age

6 Assessment of the NFS s Legal and Professional Capability Non-Federal Sponsor s Real Estate Acquisition Capability Survey will be sent to the City of Brownsville prior to final approval of the project. However, the City of Brownsville has the ability to acquire property for their projects under the City s right of eminent domain. City of Brownville s House Rule Amendment, Article II, Section 9, Right of Eminent Domain: Said city shall have the right of eminent domain and the power to appropriate private property for public purposes whenever the governing authority shall deem it necessary; and to take any private property, within or without the city limits, for any of the following purposes, to-wit: city halls, police stations, jails, calabooses, fire stations and fire alarm systems, libraries, hospitals, sanitariums, auditoriums, market houses, slaughterhouses, reformatories, abattoirs, streets, alleys, parks, highways, playgrounds, sewer systems, storm sewers, sewage disposal plants, filtering beds and emptying grounds for sewer systems, drainage, drainage water, water supply sources, wells, water and electric light and power systems, street car systems, telephone and telegraph systems, gas plants or gas systems, cemeteries, crematories, prison farms, pest houses, and to acquire lands, within or without the city, for any other municipal purpose that may be deemed advisable. That the power herein granted for the purpose of acquiring private property shall include the power of improvement and enlargement of waterworks, including water supply, riparian rights, stand pipes, watersheds, and the construction of supply reservoirs. That in all cases wherein the city exercises the power of eminent domain it shall be controlled as nearly as practicable, by the laws governing the condemnation of property by railroad corporations in this state; the city taking the position of the railroad corporation in any such cases. Zoning No application or enactment of zoning ordinances is proposed in connection with the Project. Description of Facility or Utility Relocation There are powerlines located along the street called Resaca Boulevard which is on located on city owned property. There are no plans to relocate these powerlines. Any conclusion or categorization contained in this report that an item is a utility or facility relocation to be performed by the non-federal sponsor as part of its LERRD responsibilities is preliminary only. The government will make a final determination of the relocations necessary for the construction, operation, or maintenance of the project after further analysis and completion and approval of a final attorney s opinion of compensability for each of the impacted utilities and facilities. HTRW or Other Environmental Contaminants There are no known hazardous or toxic wastes or other environmental contaminants on or within the proposed Project area. Landowner Opposition A public meeting was held March 1, 2016 at the Brownsville Public Utility District at 1425 Robinhood Street, Brownsville, TX Attendees in addition to members of BPUB and USACE consisted of two local citizens. Both individuals gave positive feedback with no opposition to the Project during the public hearing. 6 P age

7 Risks Associated with Acquiring Land Before the Execution of the PCA A risk letter will be sent to the City of Brownsville identifying the risks associated with any propertyacquisition prior to the execution of the PPA and will be noted in the final Real Estate Plan. Description of Any Other Real Estate Issues Relevant to Planning, Designing, or Implementing the Project. There are no other real estate issues relevant to Planning, Designing, or implementing the project. Land Acquisition Schedule. Milestones are based on the Project Partnership Agreement being signed Transmittal of ROW drawings & estate(s) 30 days after PPA signed Obtain Surveys 60 days after transmittal of ROW drawings & estate(s) Obtain Title Evidence 60 days after obtaining surveys Obtain Appraisals & Reviews 60 days after obtaining title Authorization to Proceed with Offer 10 days after obtaining appraisals & reviews Conclude Negotiations 90 days after start of negotiations Conduct Closings 45 days to conduct closings Conclude Condemnations 240 days after condemnation process starts Attorney Certify Availability of LERRD 15 days after condemnations concluded Corps Certifies Availability of LERRD 5 days after NFS Attorney Certifies LERRD Review LERRD Credit Request 60 days after receiving LERRD documentation Approve or Deny LERRD Credit Requests 5 days after concluding review of LERRD documentation 7 P age

8 Exhibit A: Map 8 P age

9 Exhibit B: Surveys 9 P age

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11 Exhibit C: Assessment of Non-Federal Sponsor s Real Estate Acquisition Capability 11 P age

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