PROJECT: Santa Clara Valley Habitat Conservation Plan In-Lieu Fee – Pacheco Creek Reserve Restoration Project
PUBLIC NOTICE NUMBER: SPN-2012-00302
PUBLIC NOTICE DATE: August 2, 2023
COMMENTS DUE DATE: August 31, 2023
PERMIT MANAGER: Sarah Firestone TELEPHONE: (415) 503-6776 E-MAIL: Sarah.M.Firestone@usace.army.mil
INTRODUCTION:
Santa Clara Valley Habitat Agency (SCVHA, POC: Edmund Sullivan, (408) 779-7261), 535 Alkire Avenue, Suite 100, Morgan Hill, California 95037, has applied to the U.S. Army Corps of Engineers (USACE), San Francisco District, to modify the In-Lieu Fee Instrument for the Santa Clara Habitat Conservation Plan In-Lieu Fee (SCVHP ILF) to include the Pacheco Creek Reserve Restoration Project, located near the City of Gilroy in Santa Clara County, California. This instrument modification is being processed pursuant to the provisions of the “Mitigation Rule of 2008” (33 C.F.R. Part 332), Section 404 of the Clean Water Act of 1972, as amended (33 U.S.C. § 1344 et seq.), and Section 10 of the Rivers and Harbors Act of 1899, as amended (33 U.S.C. § 403 et seq.).
PROPOSED PROJECT:
Project Site Location: The 219-acre project area is located along Pacheco Creek from 37.034745° latitude/-121.314874° longitude to 37.014526° latitude/-121.339417° longitude in unincorporated Santa Clara County, approximately 7.5 miles north of the City of Hollister, California (APNs 898-38-001; 898-38-002; 898-38-004; 898-53-002). It is located within the Lower Pacheco Creek HUC 12 (180600020206) watershed. The study area is bordered to the north by SR 152.
Project Site Description: The project site is approximately two miles downstream of the Pacheco Reservoir, and water releases from the Pacheco Reservoir are the predominant source of hydrology for the site. The creek bed within the project area is predominantly composed of cobbles, with various gravel bars and willow-gravel bars within the banks. In-stream wetlands occur throughout the site, along with wetlands and ponds outside of the channel in remnant excavation areas. The site contains multiple remnant high flow channels that no longer contain an OHWM or defined bed and bank, along with Harper Creek, Cedar Creek, and an unnamed ephemeral tributary to Pacheco Creek. Habitats within the project area also include freshwater marsh, willow riparian forest, annual grassland, mixed oak woodland, and sycamore alluvial woodland.
Project Description: As shown in the attached drawings, the applicant proposes to enhance sensitive habitats in the project area, primarily via cattle exclusion. Habitats to be preserved, enhanced, and rehabilitated include willow riparian forest and scrub, mixed riparian forest and woodland, Central California sycamore alluvial woodland, seasonal wetland, coastal and valley freshwater marsh, pond, and stream. Enhancement activities also include grading, planting native species, including California sycamores, removing invasive plant species, and installing large woody debris in Pacheco Creek.
Project Impacts: Project impacts to waters of the U.S. are authorized under Regional General Permit 18. Project activities include:
- Summarize the work, structures and/or discharge of dredged or fill material that requires DA authorization under one or more regulatory authorities. Any relevant project history may be included. If the nature and extent of the regulated activity was modified after initial submittal, describe those changes briefly so that this section describes the activity that is being considered for final verification. Any relevant project history may be included. The description provided here should align with the “Authorized Project Description” from ORM2 but may be more detailed in order to highlight changes from time of PCN submittal to time of verification.the installation of 181 cubic yards of wood in the form of post-assisted log structures (PALS) over 0.2 acres (200 linear feet) in Pacheco Creek for the purpose of habitat enhancement;
- gradingthe discharge of minimal amounts of dredged material associated with grading 0.12 acre (296 linear feet) of Pacheco Creek and 0.04 acre (184 linear feet) of an unnamed ephemeral tributary to Pacheco Creek; and
- the discharge of minimal amounts of fill material associated with the installation of line braces and t-posts to support pig fencing at Pond 3 (<3 square feet) and seasonal wetlands SW-2 and SW-5 (<1 square foot)
Proposed Mitigation: The Pacheco Creek Reserve Restoration Project consists entirely of enhancement activities, so does not itself require mitigation. It is proposed to serve as mitigation for unavoidable impacts to waters of the U.S. within the SCVHP ILF service area.
Project Alternatives: Modifications to In-Lieu Fee Instruments do not require an analysis of alternatives beyond approving or not approving the modification. If the modification is not approved, the Pacheco Creek Reserve Restoration Project could not be used to compensate for impacts within the SCVHP ILF service area.
STATE AND LOCAL APPROVALS:
Water Quality Certification: State water quality certification or a waiver thereof is a prerequisite for the issuance of a Department of the Army Permit to conduct any activity which may result in a fill or pollutant discharge into waters of the United States, pursuant to Section 401 of the Clean Water Act of 1972, as amended (33 U.S.C. § 1341 et seq.). The Pacheco Creek Reserve Restoration Project obtained a water quality certification from California Regional Water Quality Control Board (RWQCB) on May 1, 2023.
Water quality issues should be directed to the Executive Officer, California Regional Water Quality Control Board, Central Coast Region, 895 Aerovista Place, Suite 101, San Luis Obispo, California 93401, by the close of the comment period.
Coastal Zone Management: Section 307(c) of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. § 1456(c) et seq.), requires a non-Federal applicant seeking a federal license or permit to conduct any activity occurring in or affecting the coastal zone to obtain a Consistency Certification that indicates the activity conforms with the state’s coastal zone management program that indicates the activity conforms with the state’s coastal zone management program. Generally, no federal license or permit will be granted until the appropriate state agency has issued a Consistency Certification or has waived its right to do so. The project does not occur in the coastal zone, and a preliminary review by USACE indicates the project is not likely to affect coastal zone resources. This presumption of effect, however, remains subject to a final determination by the California Coastal Commission.
Other Local Approvals: The SCVHA has obtained the following additional governmental authorizations for the project: Santa Clara Valley Habitat Plan (VHP); US Army Corps of Engineers (USACE) Regional General Permit 18 (File Number SPN-2020-00399; California Department of Fish and Wildlife Natural Community Conservation Plan (Permit # 2835-2012-002-03); Central Coast Regional Water Quality Control Board (RWQCB) 401 certification (Permit No. 34322WQ06); California Department of Fish and Wildlife (CDFW) Streambed Alteration Agreement (SAA; Permit No. EPIMS-SCL-35691-R3).
COMPLIANCE WITH VARIOUS FEDERAL LAWS:
National Environmental Policy Act (NEPA): Upon review of the Department of the Army permit application and other supporting documentation, USACE has made a preliminary determination that the project neither qualifies for a Categorical Exclusion nor requires the preparation of an Environmental Impact Statement for the purposes of NEPA. At the conclusion of the public comment period, USACE will assess the environmental impacts of the project in accordance with the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321-4347), the Council on Environmental Quality's regulations at 40 C.F.R. Parts 1500‑1508, and USACE regulations at 33 C.F.R. Part 325. The final NEPA analysis will normally address the direct, indirect, and cumulative impacts that result from regulated activities within the jurisdiction of USACE and other non-regulated activities USACE determines to be within its purview of Federal control and responsibility to justify an expanded scope of analysis for NEPA purposes. The final NEPA analysis will be incorporated in the decision documentation that provides the rationale for issuing or denying a Department of the Army Permit for the project. The final NEPA analysis and supporting documentation will be on file with the San Francisco District, Regulatory Division.
Endangered Species Act (ESA): Section 7(a)(2) of the ESA of 1973, as amended (16 U.S.C. § 1531 et seq.), requires Federal agencies to consult with either the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) to ensure actions authorized, funded, or undertaken by the agency are not likely to jeopardize the continued existence of any Federally-listed species or result in the adverse modification of designated critical habitat. As the Federal lead agency for this project, USACE has conducted a review of the California Natural Diversity Data Base, digital maps prepared by USFWS and NMFS depicting critical habitat, and other information provided by the applicant to determine the presence or absence of such species and critical habitat in the project area. Based on this review, USACE has made a preliminary determination that the following Federally-listed species and designated critical habitat are present at the project location or in its vicinity and may be affected by project implementation. California red-legged frog (CRLF, Rana draytonii), San Joaquin kit fox (Vulpes macrotis mutica), and South-Central California Coast Steelhead (steelhead, Oncorhynchus mykiss) have the potential to occur within the project area, and critical habitat for CRLF and steelhead occurs within the project area. To address project related impacts to Federally-listed species and designated critical habitat, USACE consulted with USFWS and NMFS, pursuant to Section 7(a) of the Act. Impacts to these species are analyzed and addressed in the SCVHA HCP with the USFWS and in the NMFS NOAA Restoration Center Programmatic Biological Opinion.
Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA): Section 305(b)(2) of the MSFCMA of 1966, as amended (16 U.S.C. § 1801 et seq.), requires Federal agencies to consult with the NMFS on all proposed actions authorized, funded, or undertaken by the agency that may adversely affect essential fish habitat (EFH). EFH is defined as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. EFH is designated only for those species managed under a Federal Fisheries Management Plan (FMP), such as the Pacific Groundfish FMP, the Coastal Pelagics FMP, or the Pacific Coast Salmon FMP. As the Federal lead agency for this project, USACE has conducted a review of digital maps prepared by NMFS depicting EFH to determine the presence or absence of EFH in the project area. Based on this review, USACE has made a determination that the proposed activities would result in a temporary increase in turbidity, impacting Pacific Coast Salmonid EFH; however, the project would result in long-term enhancement of essential fish habitat. These impacts are analyzed and addressed in the NOAA Restoration Center Programmatic Biological Opinion.
Marine Protection, Research, and Sanctuaries Act (MPRSA): Section 302 of the MPRSA of 1972, as amended (16 U.S.C. § 1432 et seq.), authorizes the Secretary of Commerce, in part, to designate areas of ocean waters, such as the Cordell Bank, Gulf of the Farallones, and Monterey Bay, as National Marine Sanctuaries for the purpose of preserving or restoring such areas for their conservation, recreational, ecological, or aesthetic values. After such designation, activities in sanctuary waters authorized under other authorities are valid only if the Secretary of Commerce certifies that the activities are consistent with Title III of the Act. No Department of the Army Permit will be issued until the applicant obtains any required certification or permit. The project does not occur in sanctuary waters, and a preliminary review by USACE indicates the project is not likely to affect sanctuary resources. This presumption of effect, however, remains subject to a final determination by the Secretary of Commerce or his designee.
National Historic Preservation Act (NHPA): Section 106 of the NHPA of 1966, as amended (16 U.S.C. § 470 et seq.), requires Federal agencies to consult with the appropriate State Historic Preservation Officer to take into account the effects of their undertakings on historic properties listed in or eligible for listing in the National Register of Historic Places. Section 106 of the Act further requires Federal agencies to consult with the appropriate Tribal Historic Preservation Officer or any Indian tribe to take into account the effects of their undertakings on historic properties, including traditional cultural properties, trust resources, and sacred sites, to which Indian tribes attach historic, religious, and cultural significance. As the Federal lead agency for this undertaking, USACE has conducted a review of the latest published version of the National Register of Historic Places, survey information on file with various city and county municipalities, and other information provided by the applicant to determine the presence or absence of historic and archaeological resources within the permit area. Based on this review, USACE made a determination that historic or archaeological resources are present in the permit area but that the project would have no effect on these resources. The two resources potentially eligible for listing on the National Register of Historic Places are located at the perimeter of the project area and would be avoided. To address project related impacts to historic or archaeological resources, USACE initiated consultation with the State Historic Preservation Officer (SHPO), pursuant to Section 106 of the Act. The SHPO had no comments on our determination of effects.
CONSIDERATION OF COMMENTS:
USACE is soliciting comments from the public; Federal, State, and local agencies and officials; Native American Nations or other tribal governments; and other interested parties in order to consider and evaluate the impacts of the project. All comments received by USACE will be considered in the decision on whether to incorporate the project into the SCVHP ILF. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, and other environmental or public interest factors addressed in a final environmental assessment or environmental impact statement. Comments are also used to determine the need for a public hearing and to determine the overall public interest in the project.
SUBMITTING COMMENTS:
Additional details and project plans are provided in the Prospectus, available online through RIBITS at the following link:
https://ribits.ops.usace.army.mil/ords/f?p=107:378:5289924319750::::P378_PROGRAM_ID:2840
Additionally, these documents (project plans and Prospectus) are also available at the Corps’ San Francisco District Office at the address below and may be reviewed by appointment. During the specified comment period, interested parties may submit written comments to Sarah Firestone, San Francisco District, Regulatory Division, 450 Golden Gate Avenue, 4th Floor, San Francisco, California 94102-3404; comment letters should cite the project name, applicant name, and public notice number to facilitate review by the Regulatory Permit Manager. Comments may include a request for a public hearing on the project prior to a USACE decision on whether to incorporate Pacheco Creek into the ILF; such requests shall state, with particularity, the reasons for holding a public hearing. All substantive comments will be forwarded to SCVHA for resolution or rebuttal. Additional project information or details on any subsequent project modifications of a minor nature may be obtained from SCVHA or by contacting the Regulatory Permit Manager by telephone or e-mail (cited in the public notice letterhead). An electronic version of this public notice may be viewed under the Public Notices tab on the USACE website: https://www.spn.usace.army.mil/Missions/Regulatory.