[Federal Register: February 13, 2009 (Volume 74, Number 29)]
[Page 7257-7260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Bureau of Reclamation


National Oceanic and Atmospheric Administration

[FWS-R8-2008-N0345; 1112-0000-80221-F2]

Bay Delta Conservation Plan for the Sacramento-San Joaquin Delta, 

AGENCIES: Fish and Wildlife Service, Interior; Bureau of Reclamation, 
Interior; National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Notice of Intent (NOI) to prepare an Environmental Impact 
Statement/Environmental Impact Report (EIS/EIR) and notice of public 
scoping meetings.


SUMMARY: Pursuant to the National Environmental Policy Act (NEPA) of 
1969, as amended, the Fish and Wildlife Service (FWS), the Bureau of 
Reclamation (Reclamation), and the National Marine Fisheries Service 
(NMFS) will serve as co-lead agencies in the preparation of a joint 
EIS/EIR for the Bay Delta Conservation Plan (BDCP). The California 
Department of Water Resources (DWR) will serve as the lead agency under 
the California Environmental Quality Act (CEQA), which requires the 
preparation of the EIR component of the EIS/EIR. FWS will serve as the 
administrative lead for all actions related to this Federal Register 
Notice (Notice). The Federal co-lead agencies have requested that the 
U.S. Army Corps of Engineers (USACE) and the Environmental Protection 
Agency (EPA) participate in the EIS/EIR as cooperating agencies for the 
purposes of their regulatory programs. The Corps and EPA have indicated 
that they will participate in such a role.
    This Notice revises and updates the Notices of April 15, 2008 and 
January 24, 2008. In these previous Notices the description of the 
proposed action and possible alternatives were preliminary in nature 
and relied upon initial BDCP planning documents which describe the 
overall intent and direction of potential actions. Following 
publication of these previous Notices, preliminary scoping comments 
were submitted in writing and provided at preliminary scoping meetings. 
Some of the scoping comments indicated that more detailed descriptions 
of the proposed actions and alternatives are needed to allow specific 
comments on the range of alternatives and issues and levels of detail 
to be considered in the analyses of environmental consequences. Public 
comments received during this scoping period plus the previous two 
preliminary scoping periods will be considered during the preparation 
of the EIS/EIR. Comments submitted in response to the previous notices 
will be considered and do not need to be resubmitted.
    The BDCP is a conservation plan being prepared to meet the 
requirements of the federal Endangered Species Act (ESA), the 
California Endangered Species Act (CESA), and the State of California's 
Natural Communities Conservation Planning Act (NCCPA). DWR (and 
potentially State and Federal water contractors) intends to apply for 
ESA and CESA incidental take permits (ITP) for water operations and 
management activities in the Sacramento-San Joaquin Delta. These 
incidental take authorizations would allow the incidental take of 
threatened and endangered species resulting from covered activities and 
conservation measures that will be identified through the planning 
process, including those associated with water operations of the 
Federal Central Valley Project (CVP), as operated by Reclamation, the 
California State Water Project (SWP), as operated by DWR, as well as 
operations of certain Mirant Delta LLC (Mirant Delta) power plants. 
Additionally, if feasible, the BDCP will be used as the basis for ESA 
compliance by Reclamation, including compliance with Section 7 of ESA 
in coordination with FWS and NMFS. Ultimately, the BDCP is intended to 
secure authorizations that would allow projects that restore and 
protect water supplies, water quality, and ecosystem health to proceed 
within a stable regulatory framework.

DATES: Ten public scoping meetings, open house format, will be held at 
various times and locations throughout California. See SUPPLEMENTARY 
INFORMATION section for public scoping meeting dates.
    Written comments on the scope of the BDCP or issues to be addressed 
in the EIS/EIR must be received no later than May 14, 2009.

ADDRESSES: Send written comments to Lori Rinek, Sacramento Fish and 
Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825, e-mail 
to lori_rinek@fws.gov, or fax to (916) 414-6713. See SUPPLEMENTARY 
INFORMATION section for public scoping meeting addresses.

FOR FURTHER INFORMATION CONTACT: Lori Rinek, FWS, 916-414-6600; Patti 
Idlof, Reclamation, 916-978-5056; or Rosalie del Rosario, NMFS, 916-


Public Scoping Meeting Dates

    Public scoping meetings will be held on the following dates and 
     Monday, March 9, 2009, 6 p.m. to 10 p.m., Chico, CA.
     Tuesday, March 10, 2009, 6 p.m. to 10 p.m., San Jose, CA.
     Wednesday, March 11, 2009, 6 p.m. to 10 p.m., Bakersfield, 
     Thursday, March 12, 2009, 1 p.m. to 4 p.m., Los Angeles, 
     Monday, March 16, 2009, 6 p.m. to 10 p.m., San Diego, CA.
     Tuesday, March 17, 2009, 6 p.m. to 10 p.m., Merced, CA.
     Wednesday, March 18, 2009, 6 p.m. to 10 p.m., Davis, CA.
     Thursday, March 19, 2009, 1 p.m. to 4 p.m., Sacramento, 
     Monday, March 23, 2009, 6 p.m. to 10 p.m., Brentwood, CA.
     Tuesday, March 24, 2009, 6 p.m. to 10 p.m., Stockton, CA.
     Wednesday, March 25, 2009, 6 p.m. to 10 p.m., Fairfield, 
     Thursday, March 26, 2009, 6 p.m. to 10 p.m., Clarksburg, 

Public Scoping Meeting Addresses

    Public scoping meetings will be held at the following locations:
     Chico--Masonic Family Center, 1110 West East Avenue, 
Chico, CA 95926.
     San Jose--San Jose Marriott, 301 South Market Street, 
Blossom Hill and Almaden Rooms, San Jose, CA 95113.
     Bakersfield--Bakersfield Marriott at the Convention 
Center, 801 Truxtun Avenue, Salon A and Hammons Rooms, Bakersfield, CA 
     Los Angeles--Junipero Serra State Building, 320 West 
Fourth, Los Angeles, CA 90013.
     San Diego--Marina Village Conference Center, 1936 Quivera 
Way, Captains Room and Room C8, San Diego, CA 92109.
     Merced--Merced High School, 205 West Olive Avenue, Merced, 
CA 95344.
     Davis--Veterans Center, 203 East 14th Street, Davis, CA 

[[Page 7258]]

     Sacramento--Hyatt Regency, 1209 L Street, Sacramento, CA 
     Brentwood--Brentwood Community Multipurpose Room, 730 
Third Street, Brentwood, CA 94513.
     Stockton--Stockton Civic Memorial Auditorium, 525 North 
Center Street, Stockton, CA 95202.
     Fairfield--Hilton Garden Inn, 2200 Gateway Court, Willow 
and Larkspur Rooms, Fairfield, CA 94533.
     Clarksburg--Clarksburg Community Church, 52910 Netherlands 
Avenue, Clarksburg, CA 95612.

Reasonable Accommodation

    Persons needing reasonable accommodations in order to attend and 
participate in the public meeting should contact Lori Rinek at (916) 
414-6600 as soon as possible. In order to allow sufficient time to 
process requests, please call no later than one week before the public 
meeting. Information regarding this proposed action is available in 
alternative formats upon request.

Background Information

    The BDCP is being prepared through a collaboration of State, 
Federal, and local water agencies, and Mirant Delta, an electric power 
generating facility located in West Pittsburg, California in Contra 
Costa County, under: (1) Section 10(a)(1)(B) of the ESA of 1973, as 
amended, and (2) the NCCPA, California Fish and Game Code, Section 2800 
et seq., or Fish and Game Code Section 2081 of CESA. The BDCP is 
intended to provide (1) Reclamation the ability to obtain a Biological 
Opinion and incidental take statements (ITS) pursuant to Section 7 of 
ESA, and (2) the basis for the DWR (and potentially State and Federal 
water contractors) to apply for ITPs pursuant to Section 10 of ESA and 
California Fish and Game Code Section 2835 or 2081 for implementation 
of the BDCP.
    DWR and Reclamation, along with the Metropolitan Water District of 
Southern California (MWD), the Kern County Water Agency (KCWA), the 
Santa Clara Valley Water District (SCVWD), Alameda County Flood Control 
and Water Conservation District, Zone 7 Water Agency (Zone 7), the San 
Luis and Delta-Mendota Water Authority (SLDMWA), the Westlands Water 
District (WWD), and Mirant Delta (known collectively as the 
``Potentially Regulated Entities'' or PREs) are currently preparing the 
BDCP for existing and proposed covered activities within the Statutory 
Delta. Some elements of the BDCP will complement the actions identified 
in the State of California's Delta Vision process, which was a process 
convened by Governor Schwarzenegger to provide advice with respect to 
how to improve environmental conditions in the Delta while rendering it 
a more reliable source of water supply.
    It is the goal of the PREs that the BDCP meets:
    (1) The requirements of Section 10(a)(1)(B) of the ESA for the non-
federal PREs and result in the issuance of ITPs from the FWS and NMFS 
to those PREs;
    (2) The requirements of an ITP under the California fish and 
wildlife protection laws, either pursuant to Section 2835 or Section 
2081 of the Fish and Game Code, resulting in take authority under 
either one of those statutes; and
    (3) The requirements of the Section 7 consultation process under 
the ESA, resulting in the issuance of Biological Opinions, and ITSs, 
from the NMFS and FWS on specific activities of certain members of the 

Purpose and Need for Action


    This EIS is being developed for the following proposed actions and 
federal regulatory agency responses:
    (1) DWR, Reclamation, other PREs, and possibly other persons or 
entities implementing the BDCP;
    (2) DWR and possibly other PREs applying to the FWS for incidental 
take permits pursuant to the ESA section 10(a)(1)(B); and
    (3) DWR and possibly other PREs applying to the NMFS for incidental 
take permits pursuant to the federal ESA section 10(a)(1)(B).
    The proposed federal actions that are being evaluated in this EIS 
    (1) FWS issuing an ESA Section 10(a)(1)(B) permit(s);
    (2) NMFS issuing an ESA Section 10(a)(1)(B) permit(s); and
    (3) Reclamation's implementation of one or more components of the 
    Reclamation, as a federal agency, obtains incidental take 
authorization through consultation with FWS and NMFS under Section 7 of 
the ESA. Reclamation will initiate Section 7 consultation with FWS and 
NMFS for any BDCP components to be implemented by Reclamation. 
Additionally, in a parallel yet separate process, Reclamation will be 
required to reinitiate Section 7 consultation on the long-term 
operation of the CVP, as coordinated with the SWP, to the extent that 
such coordinated operations may be modified to effectively be 
integrated with any operational or facility improvements that may occur 
from implementation of the BDCP.


    The purposes of the proposed actions are to achieve the following:
    Respond to the applications for incidental take permits for the 
covered species that authorize take related to:
    (1) The operation of existing SWP Delta facilities and construction 
and operation of facilities for the movement of water entering the 
Delta from the Sacramento Valley watershed to the existing SWP and CVP 
pumping plants located in the southern Delta;
    (2) The implementation of any conservation actions that have the 
potential to result in take of species that are or may become listed 
under the ESA, pursuant to the ESA at section 10(a)(1)(B) and its 
implementing regulations and policies;
    (3) The diversion and discharge of water by Mirant LLC for power 
generation in the Western Delta.
    Improve the ecosystem of the Delta by:
    (1) Providing for the conservation and management of covered 
species through actions within the BDCP Planning Area that will 
contribute to the recovery of the species; and
    (2) Protecting, restoring, and enhancing certain aquatic, riparian, 
and associated terrestrial natural communities and ecosystems.
    (3) Reducing the adverse effects to certain listed species of 
diverting water by relocating the intakes of the SWP and CVP;
    Restore and protect the ability of the SWP and CVP to deliver up to 
full contract amounts, when hydrologic conditions result in the 
availability of sufficient water, consistent with the requirements of 
state and federal law and the terms and conditions of water delivery 
contracts held by SWP contractors and certain members of SLDMWA.


    Water for a wide range of in-stream, riparian and other beneficial 
uses, including drinking water for over 25 million Californians and 
irrigation water for agricultural lands in the Delta and the San 
Joaquin Valley, is currently routed through the Delta. While some 
beneficial water users depend on the Delta for only a portion of their 
water needs, others are highly or totally dependent on supplies from 
the Delta. Conflicts have arisen and intensified among users of Delta 
water as total volume of water used and competition for the finite 
quantity of water available to be applied among those uses has 
increased over time. Such conflicts are magnified in years with reduced

[[Page 7259]]

precipitation in the watershed of the Sacramento and San Joaquin 
    Requirements have been established for the direction and magnitude 
of water flows moving through the Delta, and the volume of water and 
the timing requirements for its release associated with meeting the 
habitat requirements for threatened and endangered fish species. There 
exists a need to protect and recover these species. However, these 
requirements alone are unlikely to recover the species and they have 
also reduced the ability of the CVP and SWP to meet the quantity and 
timing of water delivered from the Delta for beneficial consumptive 
uses. Additionally, the levees in the Delta are at constant risk of 
failure from a number of causes, including seismic activity and sea 
level rise associated with global climate change. The ability to export 
water from the Delta for beneficial use would be compromised should one 
or more of these levees fail, resulting in an interruption of water 
supply for both urban and agricultural uses, as well as cause severe 
degradation of water quality in the Delta with potential adverse 
impacts upon the aquatic ecosystem and the ability to apply water from 
the Delta to beneficial use. Improvements to the conveyance system are 
needed to respond to these increased demands upon and risks to water 
supply reliability, water quality, and the aquatic ecosystem.
    The EIS provides analysis for alternatives developed to address the 
purpose and needs identified above.

Project Area

    The planning area for the BDCP will consist of the aquatic and 
terrestrial ecosystems and natural communities and, potentially, the 
adjacent riparian and floodplain natural communities within the 
Statutory Delta. The Statutory Delta includes parts of Yolo, Solano, 
Contra Costa, San Joaquin, and Sacramento counties. However, it may be 
necessary for the BDCP to include conservation actions outside of the 
Statutory Delta that advance the goals and objectives of the BDCP 
within the Delta, including as appropriate, conservation actions in the 
Suisun Marsh, Suisun Bay, and areas upstream of the Delta. Any 
conservation actions outside the Statutory Delta would be implemented 
pursuant to cooperative agreements or similar mechanisms with local 
agencies, interested non-governmental organizations, landowners, and 
others. The EIS/EIR project area for which impacts are evaluated may be 
different than the BDCP geographic scope.

Covered Activities

    The BDCP covered activities may include, but are not limited to, 
existing or new activities related to:
    (1) Existing Delta conveyance elements and operations of the CVP 
and SWP;
    (2) New Delta conveyance facilities (including power line 
alignments) and operations of the CVP and SWP generally described in 
the BDCP November 2007 Points of Agreement (http://resources.ca.gov/
    (3) Operational activities, including emergency preparedness of the 
CVP and SWP in the Delta;
    (4) Operational activities in the Delta related to water transfers 
involving water contractors or to serve environmental programs;
    (5) Maintenance of the CVP, SWP, and other PREs' facilities in the 
    (6) Facility improvements of the CVP and SWP within the Statutory 
Delta (California Water Code Section 12220);
    (7) Ongoing operation of and recurrent and future projects related 
to other Delta water users, as defined by the BDCP Planning Agreement 
    (8) Projects designed to improve Delta salinity conditions; and
    (9) Conservation measures included in the BDCP, including, but not 
limited to, fishery related habitat restoration projects, adaptive 
management, and monitoring activities in the Delta.

Covered Species

    Species proposed for coverage in the BDCP are species that are 
currently listed as Federal or State threatened or endangered or have 
the potential to become listed during the life of the BDCP and have 
some likelihood to occur within the project area. The covered species 
that are the initial focus of the BDCP include certain aquatic species 
such as:
    (1) Central Valley steelhead Oncorhynchus mykiss;
    (2) Central Valley Chinook salmon Oncorhynchus tshawytscha (spring-
run and fall/late fall-runs);
    (3) Sacramento River Chinook salmon Oncorhynchus tshawytscha 
    (4) Delta smelt Hypomesus transpacificus;
    (5) Green sturgeon Acipenser medirostris;
    (6) White sturgeon Acipenser transmontanus;
    (7) Splittail Pogonichthys macrolepidotus; and
    (8) Longfin smelt Spirinchus thaleichthys.
    Other species that will be considered for inclusion in the BDCP 
include, but may not be limited to:
    (1) Swainson's hawk Buteo swainsoni;
    (3) Bank swallow Riparia riparia;
    (4) Giant garter snake Thamnophis gigas; and
    (5) Valley elderberry longhorn beetle Desmocerus californicus 
    This list identifies the species that will be evaluated for 
inclusion in the BDCP as proposed covered species; however, the list 
may change as the planning process progresses. The participants 
anticipate that species may be added or removed from the list once more 
is learned about the nature of the covered activities and the impact of 
covered activities on native species within the planning area.


    The BDCP will likely consist of three major elements: (1) Actions 
to improve ecological productivity and sustainability in the Delta; (2) 
potential capital improvements to the water conveyance system, and; (3) 
potential changes in Delta-wide operational parameters of the CVP and 
SWP associated with improved water conveyance facilities.
    Potential habitat restoration measures that could improve 
ecological productivity and sustainability in the Delta may involve the 
restoration of floodplain; freshwater intertidal marsh; brackish 
intertidal marsh; channel margin, and riparian habitats. Floodplain 
restoration opportunities exist in the North Delta/Yolo Bypass and 
upper San Joaquin River areas; intertidal marsh restoration 
opportunities exist throughout the Delta and in Suisun Marsh. Channel 
margin habitat restoration opportunities exist for improving habitat 
corridors and as a component of floodplain restoration. Riparian 
habitat restoration opportunities exist as a component of floodplain, 
freshwater intertidal marsh, and channel margin habitat restoration.
    Three general alternatives are being considered as they relate to 
the potential changes in the water conveyance system and CVP/SWP 
operations. These include: (1) A through-Delta alternative; (2) a dual 
conveyance alternative; and (3) an isolated facility alternative. In 
addition, the implications of taking no action, the No Action 
alternative, will be considered in the analysis. The dual conveyance 
alternative may include potential new points of diversion at various 
locations in the North Delta, facilities to move water from new points 
of diversion to the existing SWP and CVP pumping facilities in the 
South Delta, and continued use of the existing

[[Page 7260]]

diversions in the South Delta. The fully isolated facility alternative 
would include potential new points of diversion at various locations in 
the North Delta and facilities to move water from new points of 
diversion to the existing SWP and CVP pumping facilities in the South 
Delta. The improved through-Delta alternative could include new 
temporary or permanent barriers to modify existing hydraulics or fish 
movement within the Delta, armoring of levees along Delta waterways to 
ensure continued conveyance capacity, and/or actions to improve 
conveyance capacity in existing Delta waterways.
    New points of diversion could be located along the Sacramento River 
between South Sacramento and Walnut Grove. The new conveyance facility 
could extend from the new points of diversion to the existing SWP and 
CVP pumping facilities in the South Delta and be located either to the 
west or east of the Sacramento River. Potential CVP/SWP operations 
changes include the seasonal, daily, and real time amounts, rates, and 
timing of water diverted through and/or around the Delta. Potential 
corresponding changes to water exports could also be developed.
    Other actions to reduce threats to listed fish that may be 
evaluated for implementation by the BDCP include measures to minimize 
other stressors. These other stressors may include: (1) Non-native 
invasive species; (2) toxic contaminants; (3) other water quality 
issues; (4) hatcheries; (5) harvest; (6) non-project diversions; and 
(7) commercial/recreational activities. Implementation of potential 
habitat restoration activities and measures to minimize other stressors 
will be evaluated throughout the Delta, and possibly upstream and 
downstream of the Delta, as appropriate to meet the objectives of the 
    Preliminary locations, alignments, and capacities of new conveyance 
facilities, as well as habitat restoration activities and actions to 
address other stresses, to be evaluated in the EIS/EIR will be informed 
by the scoping process. In addition to the alternatives described 
above, other reasonable alternatives identified through the scoping 
process will be considered for potential inclusion in the alternatives 

Statutory Authority

    NEPA (42 U.S.C. 4321 et seq.) requires that Federal agencies 
conduct an environmental analysis of their proposed actions to 
determine if the actions may significantly affect the human 
environment. Under NEPA and its implementing regulations (40 CFR part 
1500 et seq.; NOAA Administrative Order 216-6) (43 CFR Part 46), a 
reasonable range of alternatives to the proposed action are to be 
developed and considered in an EIS/EIR prepared by the FWS and NMFS. 
Alternatives considered for analysis in an EIS/EIR may include 
variations in the scope or types of covered activities; variations in 
the location, amount, and types of conservation measures and the timing 
of project activities; variations in permit duration; or a combination 
of these or other elements. In addition, as required by NEPA, the EIS 
will identify significant direct, indirect, and cumulative effects, and 
possible mitigation for those significant effects, on biological 
resources, land use, air quality, water quality, water resources, 
socioeconomics, environmental justice, cultural resources, and other 
environmental issues that could occur with the implementation of the 
proposed action and alternatives.

Request for Comments

    The purpose of this notice is to advise other Federal and State 
agencies, affected Tribes, and the public of our intention to continue 
to gather information to support the preparation of an EIS/EIR, to 
obtain suggestions and information from other agencies and the public 
on the scope of alternatives and issues to be addressed in the EIS/EIR, 
and to identify important issues raised by the public related to the 
development and implementation of the BDCP. Written comments from 
interested parties are invited to ensure that the full range of 
alternatives and issues related to the development of the BDCP is 
identified. Comments during this stage of the scoping process will only 
be accepted in written form. You may submit written comments by mail, 
facsimile transmission, or in person (see ADDRESSES). All comments 
received, including names and addresses, will become part of the 
official administrative record and may be made available to the public. 
Comments and participation in the scoping process are encouraged.
    Before including your name, address, phone number, e-mail address, 
or other personal identifying information in your comment, you should 
be aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Ken McDermond,
Deputy Regional Director, Pacific Southwest Region, U.S. Fish and 
Wildlife Service, Sacramento, CA.

Mike Chotkowski,
Acting Regional Environmental Officer, Mid-Pacific Region, Bureau of 

Russ Strach,
Assistant Regional Administrator, Protected Resources, Southwest 
Region, National Marine Fisheries Service.
[FR Doc. E9-3103 Filed 2-12-09; 8:45 am]