BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Approve Amendment No. 5 to the Agreement for Possession and Use by and Between Santa Clara Valley Water District and the County of Santa Clara for Anderson Dam Tunnel Project, Coyote Percolation Dam Replacement Project, and Cross Valley Pipeline Extension Project as Parts of the Federal Energy Regulatory Commission Order Compliance Project, Project No. 91864005, APN: 728-34-020, 728-35-001, 729-36-001, 678-02-031 & -034, and 725-06-008; Real Estate File Nos. 9186-35, 9186-39, 9188-17, 9232-52, and 9186-59, Providing a No-Cost Time Extension to the Agreement (Unincorporated Santa Clara County, District 1).
End
RECOMMENDATION:
Recommendation
Approve Amendment No. 5 to Agreement for Possession and Use by and Between Santa Clara Valley Water District and the County of Santa Clara for the Anderson Dam Tunnel Project, Coyote Percolation Dam Replacement Project, and Cross Valley Pipeline Extension Project, Providing a No-Cost Time Extension to the Agreement.
Body
SUMMARY:
On April 27, 2021, the Board approved an Agreement for Possession and Use (PUA) by and Between Santa Clara Valley Water District (Valley Water) and the County of Santa Clara (County). The PUA provides rights for Valley Water to use County lands required for the Federal Energy Regulatory Commission (FERC) Order Compliance Project (FOCP) (Project) so that the completion of negotiations, including any extension thereof, will not delay the Project. On November 9, 2021, the Board approved the First Amendment to Agreement for Possession and Use, and on April 12, 2022, the Board approved the Second Amendment to Agreement for Possession and Use, and on April 11, 2023, the Board approved the Third Amendment to Agreement for Possession and Use, and on May 14, 2024, the Board approved the Fourth Amendment to Agreement for Possessions and Use which is Exhibit A to the Fifth Amendment to Agreement for Possession and Use (Attachment 1).
Since the Board meeting of November 9, 2021, representatives of Valley Water and the County have engaged in regular discussions for the acquisition of the real property interests as described in the PUA and subsequent amendments. These discussions are ongoing, cooperative, and productive. However, because the complexity and analysis of project impacts, and the adequate determination of possible noncash consideration have required careful analysis, a further extension of time is appropriate.
Section 2.1 of the original PUA provides that if the parties have not entered into a formal sales agreement within six months of the effective date of the PUA (April 27, 2021), then Valley Water may seek authorization from this Board to acquire the real property interests described in the PUA by eminent domain. In the alternative, Section 2.1 also provides that the terms and provisions of the PUA may be extended by mutual written agreement of the parties. Because of the productive discussions to date and because Valley Water representatives believe that the additional time for negotiations authorized by the Fifth Amendment to the PUA extending negotiations to January 31, 2025, will result in an agreement that is satisfactory to both Valley Water and the County, Valley Water staff recommend that the Board approve the Fifth Amendment to the PUA.
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
There are no environmental justice and equity impacts associated with the amendment to the Consultant agreement. This action is unlikely to or will not result in human health or environmental effects and is not associated with an equity opportunity.
FINANCIAL IMPACT:
The Anderson Dam Seismic Retrofit Project, Project No. 91864005, is included in the Capital Improvement Program (CIP) Fiscal Years (FY) 2025-29 Five-Year Plan and the FY 2024-25 Adopted Budget. The Fifth Amendment to the PUA does not require any additional funds beyond the $1,500,000.00 deposited into escrow in accordance with the terms and provisions of the original PUA. The Project is forecasted to receive up to $54.1 million from the renewed Safe, Clean Water & Natural Flood Protection Program (Fund 26), with the remainder of the total project cost funded by the Water Utility Fund (Fund 61) with 81.4% of the costs allocated to North County Zone W-2, 7.8% to South County Zone W-5 and 10.8% to South County Zone W-7.
CEQA:
The Board approved the FOCP on June 23, 2020, after determining that the project is not subject to CEQA pursuant to the statutory exemption for emergency projects, which include specific actions necessary to prevent or mitigate an emergency. Pub. Res. Code section 21080(b)(4) and CEQA Guidelines section 15269(c). CEQA (Pub. Res. Code § 21060.3) defines an “emergency” as a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. Dam failure leading to catastrophic flooding would be a “sudden unexpected occurrence” were it to occur. FERC’s dam safety order in February 2020 clearly reflects a regulatory determination that seismic risks associated with Anderson Dam and the existing outlet constitute an emergency situation that requires immediate action by Valley Water. Each of the FOCP components, including property acquisition to construct these components, is necessary for an integrated emergency response to the FERC Order, both to mitigate the potential for a catastrophic dam failure, and to avoid and minimize environmental, flood management, groundwater recharge, and water supply impacts of such emergency response actions. Approval of the original PUA, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, and this Fifth Amendment are covered by the emergency project statutory exemption.
In addition, because the temporary water pipeline easement (APN: 725-06-008) and the 4.05-acre parcel (APN: 729-36-001) are also planned for future use by the ADSRP, CEQA Guidelines Section 15004 (b)(2)(A) applies to Valley Water’s acquisition of these property interests with respect to future ADSRP use. Section 15004 (b)(2)(A) states that public agencies shall not formally make a decision to proceed with use of a site for facilities which would require CEQA review, regardless of whether the agency has made any final purchase of the site for these facilities, except that agencies may designate a preferred site for CEQA review and may enter into land acquisition agreements when the agency has conditioned the agency’s future use of the site on CEQA compliance. Execution of the PUA does not commit Valley Water to a definite course of action in regard to ADSRP, no future ADSRP use of the temporary pipeline easement and 4.05- acre parcel would commence until after ADSRP CEQA review is completed, and after that CEQA review Valley Water may pursue a different alternative.
ATTACHMENTS:
Attachment 1: Amendment No. 5
Attachment 2: Amendment No. 4
Attachment 3: Amendment No. 3
Attachment 4: Amendment No. 2
Attachment 5: Amendment No. 1
Attachment 6: Original Agreement
UNCLASSIFIED MANAGER:
Manager
Ryan McCarter, 408-630-2983