BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT: Title
Adopt a Resolution Making Responsible Agency Findings Under the California Environmental Quality Act and Approve and Authorize the Interim Chief Executive Officer to Execute the Joint Use Agreement No. A5407X, with the United States Fish and Wildlife Service’s Don Edwards San Francisco Bay National Wildlife Refuge for the Stevens Creek West Levee Trail on Don Edwards San Francisco Bay National Wildlife Refuge Pond A2W East Levee Between Shoreline Regional Park and Edge of San Francisco Bay (Mountain View, District 7).
End
RECOMMENDATION: Recommendation
A. Adopt the Resolution CONSIDERING THE FINAL PHASE 2 ENVIRONMENTAL IMPACT STATEMENT/REPORT FOR THE SOUTH BAY SALT POND RESTORATION PROJECT AND MAKING CEQA RESPONSIBLE AGENCY FINDINGS FOR APPROVAL OF JOINT USE AGREEMENT NO. A5407X, WITH THE UNITED STATES FISH AND WILDLIFE SERVICE’S DON EDWARDS SAN FRANCISCO BAY NATIONAL WILDLIFE REFUGE FOR THE STEVENS CREEK WEST LEVEE TRAIL.
B. Approve and authorize the Interim Chief Executive Officer to execute Joint Use Agreement No. A5407X, with the United States Fish and Wildlife Service’s Don Edwards San Francisco Bay National Wildlife Refuge for the Stevens Creek West Levee Trail; and
C. Delegate authority to the Interim Chief Executive Officer to approve future renewals and amendments to Joint Use Agreement No. A5407X with the United States Fish and Wildlife Service’s Don Edwards San Francisco Bay National Wildlife Refuge for the Stevens Creek West Levee Trail.
Body
SUMMARY:
Santa Clara Valley Water District (Valley Water) owns a portion of the east levee around Pond A2W, a former salt-production pond adjacent to Stevens Creek at its confluence with San Francisco Bay (Attachment 1). The South Bay Salt Pond Restoration Project (SBSPRP) will breach the Pond A2W levees to convert the pond into tidal habitat. The United States Fish and Wildlife Service’s Don Edwards San Francisco Bay National Wildlife Refuge (Refuge) desires to use the levee to provide a public access trail from the current northern terminus of the Stevens Creek Trail to a viewpoint on Refuge lands on the edge of San Francisco Bay. Valley Water has been a supportive and involved partner with the SBSPRP for over 20 years including participating in the Project Management Team and providing technical review and funding support for the Project’s activities. Valley Water and Refuge have negotiated this Joint Use Agreement (Agreement) for public recreational access in furtherance of Phase 2 of the SBSPRP.
The proposed Agreement incorporates provisions clarifying the Refuge’s responsibility for the ongoing operation and maintenance of the trail while also ensuring Valley Water's unrestricted rights to operate the property.
Key provisions of the Agreement include:
§ Refuge will have the right to build additional improvements on the property necessary or convenient to the enjoyment of the Agreement, provided that any such improvement is first approved by Valley Water by issuance of a Valley Water Permit.
§ Refuge has sole responsibility for:
o the construction, operation, maintenance, and repair of all Refuge improvements;
o maintenance and operation of all Refuge improvements in usable and safe condition; and
o the duty, cost, and expense of providing any security; police; preparation of traffic and pedestrian detour plans; public notifications for trail closures, detours, or other expenditures necessary to temporarily prohibit or control public access to the property.
§ Either party may terminate the Agreement after providing the other party with at least 90 days prior written notice.
§ Indemnification of Valley Water by the Refuge resulting from public use of the property.
Valley Water also holds flood control easements on the Stevens Creek levees downstream of the proposed Agreement area, which will be breached as part of the restoration of Pond A2W. Since the levees would no longer be necessary for flood protection, maintenance of the levees is no longer required. Accordingly, Valley Water proposes to quitclaim these land rights to the Refuge, which will be considered by the Board at a later date. The proposed Agreement would allow the advancement of the levee trail component of the SBSPRP to be authorized under a Valley Water permit, in advance of the quitclaim process.
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
There are no Environmental Justice Impacts associated with the Agreement between the United States Fish and Wildlife Service’s Don Edwards San Francisco Bay National Wildlife Refuge and the Santa Clara Valley Water District. This action is unlikely to or will not result in adverse impacts and is not associated with an equity opportunity.
FINANCIAL IMPACT:
Public recreation on the subject property will not significantly hinder normal Valley Water activities and are compatible with Valley Water's use of the property. The Agreement allocates responsibility to the Refuge for all costs associated with the public recreational use including trail surface maintenance, vegetation management, litter and graffiti removal. Valley Water will continue its normal maintenance activities consistent with its management of comparable facilities.
CEQA:
According to California Environmental Quality Act (CEQA) Guidelines §15381, Valley Water is a responsible agency, which is a public agency, other than the lead agency, that has discretionary approval power over a project. Here, Valley Water has discretionary authority over the execution of the Joint Use Agreement brought concurrently with this Board item. Accordingly and pursuant to CEQA Guidelines §15096(a) and (f), Valley Water is required to consider the environmental effects of the project in the lead agency’s CEQA document and reach its own conclusions on whether and how to approve the project.
United States Fish and Wildlife Service (USFWS) and California State Coastal Conservancy’s (SCC) prepared the South Bay Salt Pond Restoration Project (SBSPRP) Final Environmental Impact Statement/Report, Phase 2 (Phase 2 EIS/EIR) to evaluate the SBSPRP in accordance with the requirements of the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA). On May 26, 2016, SCC certified the Final Phase 2 EIS/EIR, adopted a Mitigation Monitoring and Reporting Program (MMRP) to require SCC’s implementation of the mitigation measures therein, adopted CEQA Findings, and adopted a Statement of Overriding Considerations relating to the SBSPRP’s significant and unavoidable environmental impacts. The Final Phase 2 EIS/EIR certified by SCC and related documents can be found on the SBSPRP’s website, located at: <https://www.southbayrestoration.org/document/phase-2-alvisoravenswood-final-environmental-impact-statementreport>.
Staff has reviewed the Phase 2 EIS/EIR and its appendices and believes it contains a complete, objective and accurate reporting of impacts, and is adequate for use by Valley Water. The Phase 2 EIS/EIR included analysis of the potential environmental impacts of installation, operation, and maintenance of a public access trail atop the entirety of the eastern and northern sides of the levee separating Pond A2W and Stevens Creek/Whisman Slough as part of Alternative Mountain View C, which includes the proposed activities connected with the Joint Use Agreement. As described in the Phase 2 EIS/EIR, the program-level mitigation measures identified in the Phase 1 EIS/EIR have been incorporated into the project description for the alternatives. These measures, which include avoidance and minimization measures to address water quality, cultural resources, traffic, noise, and air quality, are therefore incorporated into the proposed activities at Pond A2W.
While the lead agency adopted a Mitigation Monitoring and Reporting Program (MMRP), it does not include any measures that are applicable to Alternatives C, and thus, no measures are applicable to any of the future activities associated with the Joint Use Agreement. Staff has concluded that there are no feasible alternatives or feasible mitigation measures within Valley Water’s powers that would substantially lessen or avoid any significant effect of the SBSPRP beyond what was identified in the Phase 2 EIS/EIR and the MMRP adopted by the lead agency.
Based on the aforementioned, staff recommends that the Board take actions under CEQA as a Responsible Agency by finding that the Phase 2 EIS/EIR is adequate for use by Valley Water in executing the Joint Use Agreement, and adopting the Lead Agency’s CEQA Findings and a Statement of Overriding Considerations regarding the potentially significant and unavoidable impacts of the SBSPRP. A Resolution that would take these CEQA actions is included for the Board’s consideration (Attachment 3).
ATTACHMENTS:
Attachment 1: Location Map
Attachment 2: Joint Use Agreement, A5407X
Attachment 3: Resolution
UNCLASSIFIED MANAGER: Manager
Lisa Bankosh, 408-630-2618