SPN-2023-00293 Pond A4 Resilient Habitat Restoration Project

TO WHOM IT MAY CONCERN: The San Francisco District of the U.S. Army Corps of Engineers (Corps) has received an application for a Department of the Army permit pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344)). The purpose of this public notice is to solicit comments from the public regarding the work described below:

APPLICANT:    John Bourgeois
    Santa Clara Valley Water District
    5750 Almaden Expressway
    San Jose, California 95118

AGENT:    Nick Mascarello
    Santa Clara Valley Water District
    5750 Almaden Expressway
    San Jose, California 95118

WATERWAY AND LOCATION:  The project would affect wetlands and waters of the United States associated with South San Francisco Bay, Pond A4, located immediately adjacent to the Alviso Pond Complex, part of the South Bay Salt Pond Restoration effort to restore former salt production ponds to a mix of tidal marsh and managed ponds. The project/review area is located along the southern edge of Pond A4, near Caribbean Drive in Sunnyvale, California in within the Mountain View, CA 7.5 minute U.S. Geological Survey quadrangle, with a small portion of the eastern side located in the Milpitas, CA 7.5 minute USGS quadrangle, 6 S Township, 1 W Range; at Latitude 37.41971 and Longitude -122.00769; in Sunnyvale, Santa Clara County, California.

EXISTING CONDITIONS: The project site contains Pond A4, with water levels managed to maintain water quality and water level objectives identified by Valley Water in collaboration with the U.S. Fish and Wildlife Service (USFWS) Don Edwards San Francisco Bay National Wildlife Refuge (Refuge). Staff gage readings indicate that this water management system has kept water levels consistently between 1.1 feet and 2.1 feet NAVD88 over the period from 2010 to 2022.  Salinity typically ranged from a minimum of 1.4 parts per thousand (ppt) to a high of 71.5 ppt. The most recent year with data on salinity was 2022, when the salinity ranged from 35.2 parts per thousand (ppt) to 64.5 ppt. Wetlands are present along the margin of Pond A4, dominated by salt marsh species. The project site also contains a non-tidal drainage channel west of the Valley Water Maintenance Road, that receives stormwater runoff from the Sunnyvale Water Pollution Control Plant and the adjacent urbanized watershed, and associated brackish wetlands.
    
PROJECT PURPOSE:

Basic: To enhance the aquatic habitat in a former salt pond.

Overall:  To enhance the aquatic environment within Pond A4, a former salt pond, for foraging shorebirds and aquatic species, and to increase tidal habitat resiliency by reducing the sediment deficit in the South San Francisco Bay.

PROPOSED WORK:  The applicant requests authorization to discharge of fill material into up to forty (40) acres waters of the U.S. to construct a mudflat habitat bench for aquatic species that utilize shallow water habitat. This is a voluntary restoration/enhancement project that would beneficially reuse sediments generated by Santa Clara Valley Water’s (Valley Water) Stream Maintenance Program (SMP).
The project would be constructed over an approximately 15 to 20 year period, as sediments are available from the Valley Water SMP and other sources.  In order to provide haul truck access to the pond, an approximately 200-foot-long section of Valley Water’s maintenance road would be widened. Following the access improvements, a
temporary (earthen) staging area will be constructed starting at the terminus of the maintenance road into Pond A4, at an elevation of approximately 3 feet above the ordinary high water mark (OHWM), and will enable trucks and equipment to access the pond, stockpile sediments, and construct the habitat bench. The location and extent of this temporary staging area will be variable with each construction season, commensurate with the availability of sediments and construction constraints. As the habitat bench is constructed, portions of the temporary staging area in Pond A4 will be converted to habitat bench when no longer needed for construction, and at the end of
the project, all remaining temporary staging area will be removed and converted to habitat bench. The project elements are summarized below and shown in attached figure.

1. Habitat Bench:  The habitat bench would convert a section of Pond A4 along the length of its southern shore from perennially ponded open water (fringed with mudflat) to mudflat, and the habitat bench dimensions would be up to 400 feet wide by 5,500 feet long, with a surface area of up to 40 acres.
2. Phased approach:  Phase 1, which would be approximately 6 years, and would include access improvements, a portion of the temporary staging area and the first approximately one-third of the habitat bench; Phase 2 would consist of the remaining two-thirds of the temporary staging area and habitat bench. The duration of each phase and the extent of each year’s portion of the habitat bench would vary based on the availability of the reuse sediments.
3. Related Future Projects:  the project would tie in with future proposed projects, including the Calabazas/San Tomas Aquino Creek-Marsh Connection Project, which is a future Valley Water project that is anticipated to breach the berm surrounding Pond A4. Prior to that breach, the Creek-Marsh Connection Project proposes that the habitat bench be converted, by placing additional fill, to a gently sloping salt marsh-upland transition zone (t-zone) with a 30H:1V slope.

AVOIDANCE AND MINIMIZATION:  
A summary list of the proposed measures to avoid and/or minimize impacts to the aquatic environment as follows: 

• General construction site conservation measures including: speed limits and driving; dry season work window; worker environmental awareness training; no firearms; no pets; trash removal; daytime work only; limit vegetation removal; cleaning of construction equipment.
• Water quality measures, including:  equipment maintenance to avoid leaks; spill prevention kits; hazardous materials management/fuel spill containment plan; vehicle washing at approved areas only; stormwater management plan; turbidity curtains when appropriate; dewatering plan as needed.
• Fish exclusion measures during dewatering with qualified biologists using a seine through the area to herd fish out.
• Nesting bird surveys by qualified biologist if vegetation removal occurs between March 1 and August 31.
• Measures to protect California Ridgway’s rail, including:  breeding season habitat buffers of 200 feet from potential breeding habitat along Guadalupe Slough during breeding season, unless protocol surveys have been completed and determined absence of nesting birds; qualified biological monitors for rail activity within the marsh along the slough.
• Measures to protect western Snowy plover, including: surveys conducted by qualified biologists during the western snowy plover breeding season (March 1–September 15) if there is a lull in project construction or sediment/soil delivery of more than 14 days (or more than 7 days, if snowy plovers are recorded using the habitat bench during any project activities) within 3 days prior to the resumption of project activities. The survey will cover any portion of the habitat bench providing potential nesting habitat (i.e., dry sediment/soil) at the time; 300-foot buffers established around any nests with eggs or broods of snowy plovers observed during surveys and monitoring by qualified biologist.
• Measures to protect salt marsh harvest mouse, including: measures to minimize impacts from vegetation removal in suitable habitat for salt marsh harvest mouse, following specific progressive vegetation removal plan in these areas and restoration of habitat post temporary disturbance; installation of exclusion fencing as appropriate.
• Measures to protect northwestern pond turtle, including:  surveys conducted by qualified biologists within 3 days prior to commencement of vegetation clearing and earth-moving in ruderal areas; establishment of buffer around any detected nest by qualified biologist.

COMPENSATORY MITIGATION:  The applicant has provided the following explanation why compensatory mitigation should not be required: The project is beneficial habitat enhancement and would result in no permanent loss of waters. 

CULTURAL RESOURCES: 
The Corps evaluated the undertaking pursuant to Section 106 of the National Historic Preservation Act (NHPA) utilizing its existing program-specific regulations and procedures along with 36 CFR Part 800. The Corps’ program-specific procedures include 33 CFR 325, Appendix C, and revised interim guidance issued in 2005 and 2007, respectively. The District Engineer consulted district files and records and the latest published version of the National Register of Historic Places and initially determines that:  
Historic properties (i.e., properties listed in or eligible for inclusion in the National Register of Historic Places), are present within the Corps’ permit area; however, the undertaking will have no adverse effect on these historic properties. The Corps subsequently requests concurrence from the SHPO and/or THPO.

The District Engineer’s final eligibility and effect determination will be based upon coordination with the SHPO and/or THPO, as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps-identified permit area.

ENDANGERED SPECIES: The Corps has performed an initial review of the application, the U.S. Fish and Wildlife Service (USFWS) Information for Planning and Consultation (IPaC), the National Marine Fisheries Service (NMFS) West Coast Section 7 Mapper, the NMFS ESA Critical Habitat Mapper, and the NMFS Essential Fish Habitat Mapper to determine if any threatened, endangered, proposed, or candidate species, as well as the proposed and final designated critical habitat may occur within the boundary of the proposed project. Based on this initial review, the Corps has made a preliminary determination that the proposed project may affect species and critical habitat listed in Table 1. No other ESA-listed species or critical habitat will be affected by the proposed action. 

Table 1: ESA-listed species potentially present in the action area

Pursuant to Section 7 ESA, any required consultation with the Service will be conducted in accordance with 50 CFR part 402.

This notice serves as request to the U.S. Fish and Wildlife Service and National Marine Fisheries Service for any additional information on whether any listed or proposed to be listed endangered or threatened species or critical habitat may be present in the area which would be affected by the proposed activity.

ESSENTIAL FISH HABITAT: Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act 1996, the Corps reviewed the project area, examined information provided by the applicant, and consulted available species information. 

The Corps has made a preliminary determination that the proposal would have no adverse effect on any Essential Fish Habitat (EFH) because the project would implement conservation measures to minimize impacts due to construction, including minimization of turbidity from project actions. Pond A4 is not tidal, and no fish protected under the Pacific Coast Salmon, Coastal Pelagics, and Pacific Groundfish fishery management plans (FMPs) can easily access the pond, the pond itself may not be considered EFH. In addition, the drainage channel adjacent to the maintenance road proposed for widening is also non-tidal. Therefore, no consultation with the National Marine Fisheries Service on EFH as required by the Magnuson-Stevens Fishery Conservation and Management Act 1996 is required. USACE will render a final determination on the need for consultation at the close of the comment period, taking into account any comments provided by NMFS.

Our final determination relative to project impacts and the need for mitigation measures is subject to review by and coordination with the National Marine Fisheries Service.

NAVIGATION: The proposed structure or activity is not located in the vicinity of a federal navigation channel.

SECTION 408: The applicant will not require permission under Section 14 of the Rivers and Harbors Act (33 USC 408) because the activity, in whole or in part,  would not alter, occupy, or use a Corps Civil Works project.

WATER QUALITY CERTIFICATION: Water Quality Certification may be required from the San Francisco Bay Regional Water Quality Control Board. 

NOTE:  This public notice is being issued based on information furnished by the applicant. This information has not been verified or evaluated to ensure compliance with laws and regulation governing the regulatory program. The geographic extent of aquatic resources within the proposed project area that either are, or are presumed to be, within the Corps jurisdiction has been verified by Corps personnel.

EVALUATION: The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefits, which reasonably may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including cumulative impacts thereof; among these are conservation, economics, esthetics, general environmental concerns, wetlands, historical properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food, and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people. Evaluation of the impact of the activity on the public interest will also include application of the guidelines promulgated by the Administrator, EPA, under authority of Section 404(b) of the Clean Water Act or the criteria established under authority of Section 102(a) of the Marine Protection Research and Sanctuaries Act of 1972.  A permit will be granted unless its issuance is found to be contrary to the public interest. 

COMMENTS: The Corps is soliciting comments from the public; Federal, State, and local agencies and officials; Indian Tribes; and other Interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this determination, comments are used to assess impacts to endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act (NEPA). Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

The San Francisco District will receive written comments on the proposed work, as outlined above, until July 20, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to Frances Malamud-Roam at frances.p.malamud-roam@usace.army.mil. Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, San Francisco District, Regulatory Division, Attention:  Frances Malamud-Roam, 450 Golden Gate Avenue, 4th Floor, San Francisco, California 94102-3404.  Please refer to the permit application number in your comments.

Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. Requests for a public hearing will be granted, unless the District Engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing