TO WHOM IT MAY CONCERN: The San Francisco District of the U.S. Army Corps of Engineers (Corps) has received an application to modify the In-Lieu Fee Instrument for the Santa Clara Habitat Conservation Plan In-Lieu Fee (SCVHP ILF) to include the San Felipe Creek Restoration Project, located in the City of San José 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.).
WATERWAY AND LOCATION: The San Felipe Creek Restoration Project conducted restoration, establishment, and enhancement activities within San Felipe Creek and its tributaries between the Corral and Cañada de Pala trails in the Joseph D. Grant Park, in the City of San José, in Santa Clara County, California (0 Section, 9 S Township, 3 E Range; at Latitude 37.3245 and Longitude -121.6621).
EXISTING CONDITIONS: Restoration activities were completed in 2018 and included:
- Improvements to park trails and associated drainage features;
- Restoration of San Felipe Creek including inset floodplain creation;
- Improvements to an incised agricultural ditch and seasonal wetlands;
- Rehabilitation of incised tributaries;
- Rehabilitation of Boyds Creek (a tributary to San Felipe Creek) and an associated abandoned channel; and
- Enhancement of seasonal wetlands and a spring wetland.
According to the 2025 Annual Monitoring Report, the site has met the current performance standards.
PROJECT PURPOSE: The Santa Clara Valley Habitat Agency (SCVHA) has requested that the site be incorporated into the SCVHP ILF. Doing so would allow the restoration activities at the site to generate mitigation credits, which could be sold to other project proponents to mitigate for unavoidable impacts to waters of the U.S. within the Coyote Service Area of the SCVHP ILF.
PROPOSED WORK: All work on the San Felipe Creek Restoration Project that requires authorization from USACE has been completed.
AVOIDANCE AND MINIMIZATION: The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment: minimization measures were conditions of the permit authorizing the restoration project.
COMPENSATORY MITIGATION: The project has been proposed to mitigate for unavoidable impacts to waters of the U.S. associated with future projects that would occur within the Coyote Service Area of the SCVHP ILF.
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:
Should historic properties (i.e., properties listed in or eligible for inclusion in the National Register of Historic Places) be present within the Corps’ permit area, the incorporation of the restoration project into the SCVHP ILF (the undertaking) is a type of activity that has no potential to cause an effect to an historic property.
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 request for modification to determine if any threatened, endangered, proposed, or candidate species, as well as the proposed and final designated critical habitat may occur in the vicinity of the proposed project. Based on this initial review, the Corps has made a preliminary determination that the proposed incorporation of the restoration project into the SCVHP ILF would have no effect on listed species or their critical habitat.
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 modification.
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 determined the proposal would have no effect on any Essential Fish Habitat (EFH). The restoration project is complete, and incorporation of the project into the SCVHP ILF would not result in impacts to EFH. 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.
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 does not require permission under Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408) because the activity, in whole or in part, does not alter, occupy, or use a Corps Civil Works project.
WATER QUALITY CERTIFICATION: Water Quality Certification would not be required in order to modify the SCVHP ILF instrument.
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 modification of the SCVHP ILF instrument 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 May 10, 2026. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to Sarah Firestone at Sarah.M.Firestone@usace.army.mil. Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, San Francisco District, Attention: Sarah Firestone, U.S. Army, Corps of Engineers
San Francisco District
Regulatory Division, CESPN-RGS
450 Golden Gate Ave., 4th Floor
San Francisco, CA 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.