[Federal Register Volume 70, Number 149 (Thursday, August 4, 2005)]
[Notices]
[Pages 44897-44901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15448]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 072205I]


Environmental Impact Statement for the Santa Clara Valley Water 
District Fisheries and Aquatic Habitat Collaborative Effort

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Notice of intent to conduct public scoping and prepare an 
Environmental Impact Statement

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SUMMARY: Pursuant to the National Environmental Policy Act (NEPA) of 
1969, as amended, the National Marine Fisheries Service (NMFS) proposes 
to serve as the lead agency under NEPA in the preparation of a joint 
Environmental Impact Statement/ Environmental Impact Report (EIS/EIR) 
for the following project/proposed action: Adoption and implementation 
of the ``Settlement Agreement Regarding Water Rights of the Santa Clara 
Valley Water District On Coyote, Guadalupe, and Stevens Creeks,'' 
(Settlement Agreement), the State Water Resources Control Board's 
approval of modifications of the Santa Clara Valley Water District's 
(District) appropriative water rights to allow for implementation of 
the Settlement Agreement with supporting findings and implementation of 
those modifications, the District's adoption of a Conservation Plan 
(CP), NMFS's issuance of an incidental take permit (ITP) to the 
District, the U.S. Fish and Wildlife Service's (USFWS) issuance of an 
ITP to the District, the U.S. Army Corps of Engineers' (Corps) issuance 
of a permit to the District, and the California Department of Fish and 
Game's issuance of an incidental take permit or consistency 
determination to the District. The project/proposed action is also 
known as ``FAHCE'' (Fisheries and Aquatic Habitat Collaborative 
Effort). The NMFS is the lead agency for this EIS, and the USFWS and 
the Corps are cooperating agencies. The District, a local public water 
agency, is the lead agency under the California Environmental Quality 
Act (CEQA). A similar notice is being published by the District in 
accordance with CEQA. Comments and participation in the scoping process 
are encouraged.

DATES: Written and oral comments may be submitted at a public scoping 
meeting scheduled for Tuesday, August 9, 2005, from 7 to 9 p.m. at the 
Santa Clara Valley Water District Board Room located at 5750 Almaden 
Expressway, San Jose, CA 95118.In addition, written comments may be 
submitted on or before September 15, 2005.

ADDRESSES: Address comments and requests for information related to 
preparation of the EIS/EIR, or requests to be added to the mailing list 
for this project/proposed action, to Gary Stern, NMFS, 777 Sonoma 
Avenue, Room 325, Santa Rosa, CA 95404; facsimile (707)578-3435. 
Comments may be submitted by e-mail to the following address: 
[email protected]. In the subject line of the e-mail, include the 
document identifier: FAHCE - EIS/EIR. Comments and materials received 
will be available to public inspection, by appointment, during normal 
business hours at the above addresses.

FOR FURTHER INFORMATION CONTACT: Gary Stern, San Francisco Bay Region 
Team Leader at NMFS, Santa Rosa Area Office, (707) 575-6060.

SUPPLEMENTARY INFORMATION:

Background

    The NEPA requires Federal agencies to conduct an environmental 
analysis of their proposed actions to determine if the actions may 
affect the human environment. The NMFS expects to take action on an 
Endangered Species Act (ESA) section 10(a)(1)(B) permit application 
anticipated from the District. Therefore, the NMFS is seeking public 
input on the scope of the

[[Page 44898]]

required NEPA analysis, including the range of reasonable alternatives 
and associated impacts of any alternatives.
    Section 9 of the ESA and implementing regulations prohibit the 
``taking'' of a species listed as endangered or threatened. The term 
take is defined under the ESA as to mean harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct (16 U.S.C. 1532(19)). Harm is defined by the USFWS to 
include significant habitat modification or degradation where it 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding, and sheltering (50 
CFR 17.3). NMFS' definition of harm includes significant habitat 
modification or degradation where it actually kills or injures fish or 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, feeding, spawning, migrating, rearing, and 
sheltering (64 FR 60727; November 8, 1999).
    Section 10 of the ESA contains provisions for the issuance of an 
ITP to non-Federal landowners for the take of endangered and threatened 
species, provided that all permit issuance criteria are met, including 
the requirement that the take is incidental to otherwise lawful 
activities, and will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild. In addition, the 
applicant must prepare and submit to the NMFS and USFWS for approval, a 
CP containing a strategy for minimizing and mitigating the take 
associated with the proposed activities to the maximum extent 
practicable. The applicant must also ensure that adequate monitoring 
and funding for the CP will be provided.
    The project/proposed action arises from a complaint filed by 
Guadalupe-Coyote Resource Conservation District on July 11, 1996, 
alleging that the District's operations on Guadalupe River, Coyote 
Creek, and Stevens Creek were adversely affecting fish and their 
habitat. The District answered the complaint, denying its allegations. 
In an innovative strategy for resolving the issues raised in the 
complaint and to provide for long-term planning on these three 
watersheds and preservation of the District's water resources to serve 
its customers, trustee public agencies and interested public groups 
participated in facilitated settlement negotiations, identified as the 
Fish and Aquatic Habitat Collaborative Effort (FAHCE).
    The FAHCE process culminated successfully in the Settlement 
Agreement, finalization and implementation of which requires NEPA and 
CEQA compliance. The Settlement Agreement is expressly conditioned on 
prior compliance with NEPA and CEQA, and all applicable resource agency 
approvals of the measures that will implement the Settlement Agreement, 
and will not become effective unless and until all specified conditions 
precedent are satisfied.
    To adopt and implement the Settlement Agreement and pursue 
regulatory certainty of its existing and future water supplies, the 
District is seeking an ITP that would provide long-term assurances for 
the reliability of water supplies. The District needs an ITP because 
some of its activities have the potential to take listed species.
    As the primary water management agency for Santa Clara County, 
California, the District has constructed and currently operates and 
maintains a system of local reservoirs, flood control channels, 
groundwater recharge facilities, and water conveyance facilities in the 
Santa Clara Valley, and serves an area of approximately 1,300 sq mi 
(3,367 sq km) with a population of 1.8 million. It acts as the county's 
water wholesaler and flood protection agency, serving as the steward 
for the streams and creeks, underground aquifers and District-built 
reservoirs within the county.

Project/Proposed Action

    The ITP application is related to the operation and maintenance of 
District reservoirs and other water operations/facilities in the 
Guadalupe River, Coyote Creek, and Stevens Creek watersheds in Santa 
Clara County, California(covered activities). The Settlement Agreement 
forms the basis for covered activities in the ITP application. The 
Settlement Agreement provides for actions to be taken during four 
phases, the beginning dates of which are tied to the Effective Date of 
the Settlement Agreement (the date upon which all parties to the 
Settlement Agreement have executed it following NEPA/CEQA review and 
receipt of all regulatory approvals).
    The first three phases of the Settlement Agreement each would allow 
10 years to implement specified measures. The fourth phase would carry 
forward the measures in perpetuity. Each of the initial three phases 
would include distinct management objectives and measures to achieve 
the overall management goals. The overall management goals are to 
restore and maintain healthy steelhead and salmon populations as 
appropriate to each of the three watersheds by providing suitable 
spawning and rearing habitat within each, and to provide adequate 
passage for adult steelhead and salmon to reach suitable spawning and 
rearing habitat and for out-migration of juveniles.
    The Settlement Agreement provides that the proposed measures would 
be implemented in an adaptive manner in order to effectively mitigate 
any adverse impacts on the steelhead and Chinook salmon fisheries as 
well as red-legged frog. An Adaptive Management Team would be formed to 
oversee the implementation of the Settlement Agreement measures, 
including identification of the measures to be included in phases two, 
three and four, and initially would include representatives of all 
parties to the Settlement Agreement.
    The District has informed NMFS of its proposal to submit a 
conservation plan (CP) and application for an ITP under section 
10(a)(1)(B) of the ESA. Activities that the District may propose for 
incidental take permit coverage include:
    1. Phase One (first 10 years) measures common to Coyote Creek, 
Guadalupe River and Stevens Creek watersheds would include the 
following:
    a. Re-operation of reservoirs in accordance with specified criteria 
for flood releases, fish passage and other non-emergency operations and 
maintenance; expansion of the District's appropriative water rights to 
include preservation and enhancement of public trust resources as a 
beneficial use; and operation of the District's reservoirs to ensure 
that both stream water depth and stream water temperature are adequate 
to support the various life stages of the two salmonid species.
    b. Removal or remediation of Priority 1 District-owned barriers to 
salmonid migration and use of reasonable best efforts, including up to 
50 percent cost sharing, to remove or remediate Priority 1 barriers 
owned by others; and periodic evaluation and determination of whether 
other barriers interfere with the timely achievement of the management 
objectives for each of the three watersheds.
    c. Implementation of a Fish Habitat Restoration Plan to enhance 
spawning habitats for steelhead and salmon in the three watersheds.
    d. Implementation of a program to enhance rearing habitats for 
steelhead and Chinook salmon, including tree planting, placement of 
large organic (woody) debris, channel modifications including berms, 
and riparian canopy enhancement.
    e. Implementation of a program to identify stream reaches where 
geomorphic functions necessary for channel maintenance or formation 
(e.g., hydraulic runoff, bedload transport, channel migration, riparian 
vegetation

[[Page 44899]]

succession) are impaired; and evaluation of the feasibility of 
restoring such geomorphic functions to enhance fish passage to suitable 
spawning and rearing habitats, followed by development and 
implementation of feasible pilot projects to restore geomorphic 
functions.
    f. Development and adoption of general guidelines, applying 
environmentally sensitive techniques, to maintain or enhance geomorphic 
functions, riparian conditions and bank stabilization projects 
undertaken by other persons.
    2. Phase One (first 10 years) measures for the Coyote Creek System 
would also include:
    a. Maintenance of habitat for steelhead and Chinook salmon.
    b. Operation of a Cold Water Management Zone for approximately 5 
miles (8 km) below Anderson Dam.
    c. Preparation of a Coyote Creek Facilities Plan, including 
evaluation of Laguna Seca groundwater remediation and the restoration 
of the Metcalf Ponds.
    d. Development of a cooperative operations agreement on Cherry Flat 
Reservoir with the City of San Jose.
    e. Development of a feasibility study of a track and truck 
operation at Anderson Reservoir.
    3. Phase One (first 10 years) measures for the Guadalupe River 
System would also include:
    a. Maintenance of habitat for steelhead and Chinook salmon.
    b. Operation of a Cold Water Management Zone on Guadalupe Creek 
below Guadalupe Dam to confluence with Guadalupe River.
    c. Operation of a management zone for Chinook salmon on Alamitos 
Creek and Calero Creek below Calero and Almaden Reservoirs.
    d. Operation of a management zone for Chinook salmon in Los Gatos 
Creek from Camden Ave. to the confluence with the Guadalupe River.
    e. Preparation of a facilities plan for Alamitos Creek.
    4. Phase One (first 10 years) measures for the Stevens Creek System 
would also include:
    a. Maintenance of habitat for steelhead.
    b. Operation of a Cold Water Management Zone below Stevens Creek 
Reservoir.
    c. Installation of a multi-post outlet at Stevens Creek Dam to 
allow for the management of temperature in the cold water management 
zone.
    d. Development of a feasibility study of a track and truck 
operation at Stevens Creek Reservoir.
    5. Phase Two (second 10 years) measures for Coyote Creek watershed 
would include the following, as needed:
    a. Extension of the distribution of suitable habitat for salmon and 
steelhead up to an approximate additional five miles (8 km) below 
Anderson Dam; or up to 10 miles (16 km) above Anderson Reservoir or 
Coyote Reservoir, as feasible.
    b. Modification of water releases from Anderson Reservoir.
    c. Relocation of the Coyote Percolation Facility off-stream.
    d. Removal or remediation of Priority No. 2 District-owned 
barriers.
    e. Use of recycled or other urban water to augment flows in Coyote 
Creek.
    f. Implementation of a trap and truck operation to relocate adult 
steelhead into upper watershed habitat above Anderson or Coyote 
Reservoirs and to assist in smolt out-migration.
    6. Phase Two (second 10 years) measures for Guadalupe River 
watershed would include the following, as needed:
    a. Extension of the distribution of fishery habitat for steelhead 
in Alamitos Creek up to an approximate additional three miles (5 km) 
above Almaden Reservoir, or below either Calero Reservoir or Almaden 
Reservoir to its confluence with Lake Almaden, as feasible.
    b. Removal or remediation of Priority No. 2 District-owned 
barriers.
    c. Use of recycled or other urban water to augment flows in the 
Guadalupe main stem or its tributaries.
    d. Implementation of a trap-and-truck operation to relocate adult 
steelhead into upper watershed habitat above Almaden Reservoir.
    e. Construction of a bypass channel or other modification necessary 
to isolate Alamitos Creek and Guadalupe River from Lake Almaden.
    f. Removal or modification of Almaden Reservoir to allow for 
unimpeded access to upper watershed habitat.
    7. Phase Two (second 10 years) measures for Stevens Creek watershed 
would include the following, as needed:
    a. Extension of the distribution of suitable habitat for salmon and 
steelhead up to an approximate additional five miles (8 km) above 
Stevens Creek Reservoir or an additional two miles (3 km) below Stevens 
Creek Reservoir, as feasible.
    b. Removal or remediation of Priority No. 2 District-owned 
barriers.
    c. Use of recycled or other urban water to augment flows in Stevens 
Creek.
    d. Implementation of a trap-and-truck operation to relocate adult 
steelhead into upper watershed habitat above Stevens Creek Reservoir.
    8. Phase Three (third 10 years) measures for Coyote Creek watershed 
would be those measures not implemented in Phase Two, as needed to 
achieve the overall management objectives.
    9. Phase Three (third 10 years) measures for Guadalupe River 
watershed would be those measures not implemented in Phase Two but 
needed to achieve the overall management objectives. Periodic review 
would be conducted on reaches within Los Gatos Creek below Lexington 
Reservoir to identify opportunities for additional measures that may be 
implemented in Phases Two and Three, specifically to increase access to 
salmonid spawning or juvenile rearing habitat.
    10. Phase Three (third 10 years) measures for Stevens Creek 
watershed would be to extend habitat into suitable tributaries or above 
Stevens Creek Reservoir. Additional measures not implemented in Phase 
Two would be implemented as needed to achieve the overall management 
objectives.
    11. Phase Four (long term) measures for all watersheds would be the 
continuation of prior actions, including the District's continued 
operation of its reservoirs to provide in-stream flows as needed to 
achieve the overall management objectives as long as the District 
continues to appropriate water pursuant to its water rights; long-term 
monitoring would continue; and maintenance of facility improvements and 
other non-flow measures would continue.
    The geographic areas to be covered by the proposed CP and ITP are 
located in Santa Clara County, California. More information on the 
geographic area can be found at an Internet site maintained by the 
District: http://www.valleywater.org/Water/Watersheds_-_streams_and_floods/Taking_care_of_streams/FAHCE/index.shtm.
    Under NEPA, a reasonable range of alternatives to a proposed action 
must be developed and considered in the NMFS' environmental review. The 
NMFS is currently in the process of developing alternatives for 
analysis, and have considered analyzing the following:
    Alternative 1: No Action - Under the No Action Alternative, an ITP 
would not be issued by NMFS or USFWS, there would not be a commitment 
to implement the CP (although it is expected that improvements will be 
made on an uncertain schedule), and ESA assurances under section 10 
would not be provided to the District;
    Alternative 2: Flow Adjustments (Only) Alternative - This 
alternative would include modified District reservoir operations and 
maintenance

[[Page 44900]]

and activities, but with no additional actions to enhance and preserve 
habitats and fisheries.;
    Alternative 3: Flow Adjustments and Removal of District Owned 
Barriers Alternative - This alternative would be limited to flow 
adjustments and removal of District-owned stream barriers.;
    Alternative 4: Accelerated Recycled Water Investigations 
Alternative - This alternative would include all of the actions 
described in the Settlement Agreement as well as beginning a program 
for bringing recycled water to the base of the dams to conserve potable 
water supplies. The program would include investigation of the 
feasibility of supplying recycled water to new customers along the 
length of the pipeline.
    Alternative 5: Use of Other Water Supplies to Augment Flow 
Alternative - This alternative would include the use of other water 
supplies (e.g. imported water or consolidated water rights from 
District retailers) to augment flow alternatives.
    Alternative 6: Flow to the Bay Alternative - This alternative would 
establish a year-round ``live stream'' flow to the Bay using one or 
more of the following water supplies: flow to the bay with local water 
supplies; flow to the bay with other raw water sources to augment 
flows; and/or flow to the bay with treated recycled water to augment 
flows.
    Alternative 7: Maximize the Wetted Zone Over the Long Term 
Alternative - This alternative would be in contrast to standard methods 
that emphasize temperature control through cold-water management. This 
alternative includes existing operations and maintenance with flow 
ramping modifications and emphasizes the behavioral and physiological 
adaptations of fish. This alternative recognizes that there will be 
potential dry years and emphasizes the application of Adaptive 
Management principles.
    Alternative 8: Natural Conditions Alternative - This alternative 
analyzes the removal of all the District's dams in the Coyote Creek, 
Guadalupe River, and Stevens Creek watersheds with restoration to pre-
dam conditions.
    Alternative 9: Hatchery Alternative - This alternative considers 
the use of Federal, State of California or privately owned hatcheries 
to provide hatchery fish to the Coyote Creek, Guadalupe River, and 
Stevens Creek watersheds with costs paid by the District.
    Alternative 10: Raise Dam face Alternative - This alternative 
analyzes the effects of raising the dam faces on the Coyote Creek, 
Guadalupe River, and Stevens Creek watersheds to increase the cold 
water supply to benefit fisheries.
    Alternative 11: Extend Timetable for Implementing Phases One 
through Three - This alternative analyzes the effects of extending the 
time period for implementing Phases One through Three by an additional 
5 years each to provide the District additional time to provide the 
funding necessary for implementation. Under this alternative, none of 
the measures included in each phase would be modified. Only the timing 
would change.
    Additional project/proposed action alternatives may be developed 
based on input received from this and future scoping during development 
of the EIS/EIR.

NMFS, USFWS, and Corps Actions

    Under the project/proposed action, the effects of covered 
activities on covered species are expected to be minimized and 
mitigated through the CP. Species for which the District seeks ITP 
coverage include two ESA-listed threatened species (Central California 
Coast steelhead and California red-legged frog) and one unlisted 
species (Central Valley fall-run Chinook salmon) that may be affected 
by the District's adoption and implementation of the Settlement 
Agreement.
    To obtain an ITP, the District must prepare a CP that meets the 
issuance criteria established by NMFS and USFWS (50 CFR 17.22 and 
222.307). Federal approval of an ITP and associated CP require 
environmental review under the NEPA. The NMFS and District will 
complete an EIS/EIR evaluating the environmental effects of the 
District's operations under the proposed Settlement Agreement and CP. 
As a Cooperating Agency, USFWS may also use the EIS analysis for 
purposes of supporting a decision as to whether to issue an ITP to the 
District based on the CP.
    The District is expected to apply to the Corps for permits pursuant 
to section 404 of the Clean Water Act (CWA) for some actions included 
in the project/proposed action. As a Cooperating Agency, the Corps may 
use the EIS analysis for purposes of supporting the decision whether to 
issue permits to the District under section 404 of the CWA.

Non-Federal Actions

    The District will request that the State Water Resources Control 
Board (SWRCB) (a) approve modifications to the District's water rights 
as necessary to implement the measures contemplated by the Settlement 
Agreement, and (b) adopt certain specific findings with respect to the 
District's operations and maintenance on Stevens Creek, Guadalupe River 
and Coyote Creek. The SWRCB cannot approve modification of the 
District's appropriative water rights as necessary to implement the 
Settlement Agreement, or make any of the requested findings, without an 
environmental document certified under CEQA. The SWRCB will be a 
responsible agency for the EIS/EIR.
    As a joint lead agency, the District cannot implement the 
provisions of the Settlement Agreement or undertake actions authorized 
by its modified water rights without first certifying the EIS/EIR in 
compliance with CEQA.

Scoping for the EIS/EIR

    The NMFS provides this notice to: (1) advise other agencies and the 
public of our intentions; and (2) obtain suggestions and information on 
the scope of issues to include in the EIS/EIR. The NMFS and District 
have scheduled a public scoping meeting scheduled for Tuesday, August 
9, 2005, at 7 to 9 p.m. at the Santa Clara Valley Water District Board 
Room located at 5750 Almaden Expressway, San Jose, CA 95118. Written 
and oral comments may be submitted at this public scoping meeting. 
Comments and suggestions are invited from all interested parties to 
ensure that the full range of issues related to this proposed action 
and all significant issues are identified.
    The NMFS and District request that comments be as specific as 
possible. In particular, we request information regarding: the direct, 
indirect, and cumulative impacts that implementation of the proposed CP 
could have on endangered and threatened and other covered species, and 
their communities and habitats; other possible alternatives that meet 
the purpose and need; potential adaptive management and/or monitoring 
provisions; funding issues; existing environmental conditions in 
Stevens Creek, Guadalupe River, and Coyote Creek watersheds in Santa 
Clara County; other plans or projects that might be relevant to this 
proposed project; and minimization and mitigation efforts.
    In addition to considering potential impacts on listed and other 
covered species and their habitats, the EIS/EIR could include 
information on potential impacts resulting from alternatives on other 
components of the human environment. These other components could 
include air quality, water quality and quantity, geology and soils, 
cultural resources, socioeconomic resources, vegetation, and 
environmental justice.
    Comments or questions concerning this proposed action and the

[[Page 44901]]

environmental review should be directed to the NMFS at the addresses or 
telephone numbers provided above (see ADDRESSES). All comments and 
material received, including names and addresses, will become part of 
the administrative record and may be released to the public.
    The environmental review of this project/proposed action will be 
conducted in accordance with the requirements of the National 
Environmental Policy Act of 1969, as amended (42. U.S.C. 4321 et seq.), 
National Environmental Policy Act Regulations (40 CFR 1500-1508), other 
appropriate Federal laws and regulations, and policies and procedures 
of the Services for compliance with those regulations.

    Dated: July 28, 2005.
Walter L. Wadlow,
Acting Chief Executive Officer, Santa Clara Valley Water District, 
Santa Clara, California.

    Dated: July 29, 2005.
Donna Wieting,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-15448 Filed 8-3-05; 8:45 am]
BILLING CODE 3510-22-S