[Federal Register: January 24, 2008 (Volume 73, Number 16)]
[Page 4178-4180]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 4178]]



National Oceanic and Atmospheric Administration


Fish and Wildlife Service

RIN 0648-XE30

Notice of Intent to Conduct Public Scoping and Prepare an 
Environmental Impact Report/Environmental Impact Statement (EIR/EIS) 
Regarding the Bay Delta Conservation Plan (BDCP) for the Sacramento-San 
Joaquin Delta, California

AGENCIES: National Marine Fisheries Service (NMFS), National Oceanic 
and Atmospheric Administration (NOAA), Commerce; Fish and Wildlife 
Service (FWS), Interior.

ACTION: Notice of intent.


SUMMARY: Pursuant to the National Environmental Policy Act (NEPA), and 
the California Environmental Policy Act (CEQA) we, NMFS and FWS 
(Services), advise the public of our intent to collaborate with the 
State of California in gathering information necessary to prepare a 
joint Environmental Impact Report/Environmental Impact Statement (EIR/
EIS) on the anticipated Bay Delta Conservation Plan (BDCP). The BDCP is 
being prepared through a unique collaboration of state, Federal and 
local agencies, of the Federal Endangered Species Act of 1973, as 
amended (Act). The California Department of Water Resources (DWR) 
intends to apply for Incidental Take Permits (ITP) from the Services 
based upon the BDCP in 2009 according to the planning schedule. At the 
same time, the Services would provide Biological Opinions and 
Incidental Take Statements (ITS) to the Bureau of Reclamation 
(Reclamation) for their participation and implementation of the BDCP. A 
goal of the BDCP is to meet the requirements of the California Natural 
Community Conservation Planning Act (NCCPA), California Fish and Game 
(CDFG), and provide the basis for DWR to apply for an ITP pursuant to 
CDFG Code. However, in the event that the BDCP does not meet the 
requirements of the NCCPA, DWR may alternatively seek an ITP under 
Section 2081 of the California Endangered Species Act, California Fish 
and Game Code 2050 et seq. These incidental take authorizations would 
allow the incidental take of threatened and endangered species 
resulting from certain covered activities that will be identified 
through the planning process, including those associated with water 
operations of the California State Water Project, as operated by DWR, 
and the Central Valley Project, as operated by Reclamation.

ADDRESSES: Comments and requests for information related to the 
preparation of the EIR/EIS should be sent to National Marine Fisheries 
Service, Attn: Rosalie del Rosario, 650 Capitol Mall, Suite 8-300, 
Sacramento, California 95819; or Fish and Wildlife Service, Attn: Lori 
Rinek, Chief, Conservation Planning and Recovery Division, Sacramento 
Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, 
California 95825. Comments may also be submitted electronically to 
BDCP-NEPA.SWR@noaa.gov. Comments and materials received will be 

available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Rosalie del Rosario of NMFS at 916-
930-3600 or Lori Rinek of FWS at 916-414-6600.


Proposed Action

    The California Department of Water Resources (DWR) intends to apply 
for Incidental Take Permits (ITP) from the Services based upon the BDCP 
in 2009 according to the planning schedule. Other applicants, co-
applicants, or beneficiaries of an ITP, referred to as Potentially 
Regulated Entities, will be identified during this planning process. At 
the same time, the Services would issue Biological Opinions and 
Incidental Take Statements (ITS) to Reclamation for its participation 
and implementation of the BDCP. These Incidental Take Statements would 
allow for the incidental take of threatened and endangered species 
resulting from certain covered activities that will be identified 
through the planning process and are associated with water operations 
of the California State Water Project, as operated by DWR, and the 
Central Valley Project, as operated by Reclamation.
    The Services provide this notice to (1) briefly describe the 
anticipated proposed action and the BDCP planning activities now 
underway to help develop that proposed action; (2) 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 EIR/
EIS; (3) announce the initiation of early public scoping; and (4) 
obtain suggestions and information on the scope of issues to be 
included in the EIR/EIS. Written comments should be received on or 
before March 24, 2008.
    The applicants have identified four potential water conveyance 
options that are being considered for the habitat conservation planning 
process: (1) the existing conveyance and system without physical change 
to conveyance facilities, (2) changes to conveyance in San Joaquin Old 
and Middle River channels plus separation of San Joaquin corridor from 
through-delta conveyance, (3) a dual conveyance in which existing 
conveyance would still be operational plus an isolated facility (not 
yet constructed) from the Sacramento River to the south Delta, and (4) 
an isolated conveyance facility (not yet constructed) from the 
Sacramento River to the south Delta. These four options are undergoing 
evaluations through the BDCP Steering Committee to assess the relative 
ability of each to contribute to the goals and objectives of the 
planning effort. Although the applicant has not yet decided which 
option(s) will be submitted for consideration under section 10 of the 
Endangered Species Act, the intent is to narrow the project focus to 
one or two of the four options or a mixture thereof by fall 2007.
    Additional to the conveyance elements of the State Water Project 
(SWP) and Central Valley Project (CVP) options given above, covered 
activities may include, but are not necessarily limited to, existing or 
new activities related to:
    1. Operational activities, including emergency preparedness, of the 
    2. Operational activities related to water transfers involving 
Water Contractors or to serve environmental programs
    3. Maintenance of the SWP, CVP and other Potentially Regulated 
Entities' facilities
    4. Facility improvements of the SWP and CVP
    5. Ongoing operation of and recurrent and future projects related 
to other Delta Water Users
    6. Projects designed to improve salinity conditions
    7. Conservation measures included in the BDCP, including, but not 
limited to adaptive habitat management, restoration, enhancement and 
monitoring activities.
    Please refer to the Planning Agreement, para. 7.5, available at 
http://resources.ca.gov/bdcp/. The BDCP Planning Agreement was reached 

in October 2006 and was amended April 2007, to guide the BDCP process.
    Planning Process
    DWR and Reclamation, along with the Metropolitan Water District of 
Southern California, Kern County Water Agency, Santa Clara Valley Water 
District, Zone

[[Page 4179]]

7 Water Agency, San Luis & Delta-Mendota Water Authority, Westlands 
Water District, Contra Costa Water District, and Mirant Delta (known 
collectively as the ``Potentially Regulated Entities'' or PREs) are 
preparing the BDCP for their covered activities within the Geographic 
Scope described below. It is the goal of the PREs that the BDCP will 
(1) satisfy the requirements of Section 10(a)(1)(B) of the Act for non-
Federal PREs and result in the issuance of ITPs from the Services to 
certain of the PREs, (2) be used in a concurrent consultation with 
other Federal agencies pursuant to Section 7 of the Act, resulting in 
the issuance of Biological Opinions, including ITSs, from the Services 
to certain of the PREs, (3) satisfy the requirements for an ITP under 
the California fish and wildlife protection laws, either pursuant to 
the Natural Community Conservation Plan Act (NCCPA), Section 2835 of 
the Fish and Game Code or Section 2081 of the Fish and Game Code.
    The planning efforts for the BDCP are in its preliminary stages. 
Formal preparation of a draft EIR/EIS will commence when the planning 
efforts described below progress further in the coming months. The BDCP 
is being prepared with the cooperation of the Services, the California 
Resources Agency, CDFG, the California Bay Delta Authority, the PRE's 
as listed above, and key Non-Government Organizations including The 
Nature Conservancy, Environmental Defense, Defenders of Wildlife, 
Natural Heritage Institute, The Bay Institute, American Rivers, and the 
California Farm Bureau Federation. All of these agencies and 
organizations are members of a Steering Committee that will guide the 
preparation of the BDCP. The Services are participating in the Steering 
Committee's efforts on an ex officio basis, providing technical input 
and guidance in support of the Steering Committee's efforts. The 
participants are undertaking these planning efforts pursuant to the 
Planning Agreement.
    A document from the BDCP Steering Committee titled ``The Bay Delta 
Conservation Plan: Points of Agreement for Continuing into the Planning 
Process,'' dated November 16, 2007, provides a summary of the planning 
process to date along with future direction and procedures. Through 
this document, the Steering Committee points to agreement on an 
approach to be evaluated for achieving the conservation and water 
supply goals. The primary new structural features of the water 
conveyance system to be evaluated are a new diversion point (or points) 
for water from the Sacramento River in the north Delta and an isolated 
water conveyance facility around the Delta. Modifications to existing 
south Delta facilities to reduce entrainment and otherwise improve the 
State Water Project's (SWP) and Central Valley Project's (CVP) ability 
to convey water through the Delta while contributing to near- and long-
term conservation and water supply goals will also be evaluated.
    Members of the public interested in participating in the BDCP 
process directly or interested in having access to information 
associated with the effort are encouraged to visit the Bay Delta 
Conservation Plan component of the California Resources Agency's 
website: http://resources.ca.gov/bdcp/. This website provides open 

access to comprehensive documentation of the planning process, and a 
detailed schedule of past and future planning activities. The following 
describes preliminary information identified by the Steering Committee 
for consideration in the BDCP development.

Geographic Scope

    The planning area for the BDCP will consist of the aquatic 
ecosystems and natural communities, and potentially adjacent riparian 
and floodplain natural communities, within the Statutory Delta 
(California Water Code Section 12220), which 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 
the Statutory Delta that advance the goals and objectives of the BDCP, 
including as appropriate, conservation actions in the Suisun Marsh, 
Suisun Bay, and areas upstream of the Delta. Any conservation actions 
taken outside the Statutory Delta would be implemented pursuant to 
cooperative agreements or similar mechanisms with local agencies, 
interested non-governmental organizations, landowners, and others. See 
Planning Agreement, para. 5.

Covered Species

    Species that are intended to be the initial focus of the BDCP 
include aquatic species such as: Central Valley steelhead (Oncorhynchus 
mykiss), Central Valley Chinook salmon (Oncorhynchus tshawytscha) 
(spring run and fall/late-fall runs), Sacramento River Chinook salmon 
(winter run), Delta smelt (Hypomesus transpacificus), green sturgeon 
(Acipenser medirostris), white sturgeon (Acipenser transmontanus), 
splittail (Pogonichthys macrolepidotus), longfin smelt (Spirinchus 
thaleichthys). Other species that will be considered for inclusion in 
the BDCP include Swainson's hawk (Buteo swainsoni), bank swallow 
(Riparia riparia), giant garter snake (Thamnophis gigas), and valley 
elderberry longhorn beetle (Desmocerus californicus dimorphus). See 
Planning Agreement, para. 6.1.1. This list identifies the species that 
will be evaluated for inclusion in the BDCP as proposed covered 
species, but the list may vary or 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.

Planning Goals

    The BDCP will include goals and objectives for the management of 
Covered Activities and conservation of Covered Species. As proposed in 
the Planning Agreement (para.3), the planning goals include:
    1. Provide for the conservation and management of covered species 
within the planning area;
    2. Preserve, restore and enhance aquatic, riparian and associated 
terrestrial natural
    communities and ecosystems that support covered species within the 
planning area through
    conservation partnerships;
    3. Allow for projects that restore and protect water supply, water 
quality, ecosystem, and ecosystem health to proceed within a stable 
regulatory framework;
    4. Provide a means to implement covered activities in a manner that 
complies with applicable State and federal fish and wildlife protection 
laws, including the Natural Communities Conservation Planning Act or 
the California Endangered Species Act, the Federal Endangered Species 
Act, and other environmental laws, including CEQA and NEPA;
    5. Provide a basis for permits necessary to lawfully take covered 
    6. Provide a comprehensive means to coordinate and standardize 
mitigation and compensation requirements for covered activities within 
the planning area;
    7. Provide a less costly, more efficient project review process 
which results in greater conservation values than project-by-project, 
species-by-species review; and
    8. Provide clear expectations and regulatory assurances regarding 
covered activities occurring within the planning area.

[[Page 4180]]

Statutory Authority

    Section 9 of the Act (16 U.S.C. 1538) and implementing regulations 
(50 CFR 17.21, and 17.31(a)) prohibit the ``taking or animal species 
listed as endangered or threatened. The term ``take'' is defined under 
the Act to mean harass, harm, pursue, hunt, shoot, wound kill, trap, 
capture or collect, or attempt to engage in any such conduct (16 U.S.C. 
1532 (10)). ``Harm'' is defined by FWS regulation to include 
significant habitat modification or degradation where it actually kills 
or injures wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding and sheltering (50 CFR 17.3). 
NMFS' definition of harm includes significant habitat modification of 
degradation where it actually kills or injures fish or wildlife by 
significantly impairing essential behavioral patterns, including 
breeding, feeding, spawning, migrating, rearing and sheltering (64 FR 
60727, November 8, 1999).
    Section 7 of the Act outlines the procedures for federal 
interagency cooperation to conserve federally listed species and 
designated critical habitats (U.S.C. 1531 et seq.) Section 7(a)(1) of 
the Act directs the Secretaries of Interior and Commerce (Secretaries) 
to review other programs administered by them and utilize such programs 
to further the purposes of the Act. It also directs all other Federal 
agencies to utilize their authorities in furtherance of the purposes of 
the Act by carrying out programs for the conservation of species listed 
pursuant to the Act. Section 7(a)(2) states that each Federal agency 
shall, in consultation with the Secretaries, insure that any action 
they authorize, fund, or carry out is not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. Sections 7(b)(4) 
and 7(o)(2) of the Act allow for taking of listed species that is 
incidental and not an intended part of a Federal action if such taking 
is in compliance with the terms and conditions of an incidental take 
statement provided by the Services.
    Section 10 of the Act and implementing regulations provide for the 
issuance of incidental take permits (ITPs) to non-federal applicants to 
authorize incidental take of endangered and threatened species (16 
U.S.C. 1539(a); 50 CFR 17.22, and 17.32(b)). Any proposed take must be 
incidental to an otherwise lawful activity, must not appreciably reduce 
the likelihood of the survival and recovery of the species in the wild, 
and must be minimized and mitigated to the maximum extent practicable. 
In addition, an applicant must prepare a Habitat Conservation Plan 
(HCP) describing the impact that will likely result from such taking, a 
plan for minimizing and mitigating the impacts of such incidental take, 
the funding available to implement the plan, alternatives to such 
taking, and the reasons such alternatives are not being implemented.
    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 1500 
et seq.; NOAA Administrative Order 216-6; 40 CFR parts 1500-1508), a 
reasonable range of alternatives to the proposed action are developed 
and considered in the Services' EIR/EIS. Alternatives considered for 
analysis in an EIR/EIS may include: variations in the scope or types of 
covered activities; variations in the location, amount and types of 
conservation measures, timing of project activities; variations in 
permit duration; or a combination of these or other elements. In 
addition, an EIR/EIS will identify potentially 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.


    The schedule for this EIR/EIS depends upon the development of the 
draft BDCP, which is expected to occur by early 2009. We will publish 
additional notices about the proposed action and public participation 
once the elements of the comprehensive plan are developed.

Request for Comments

    Environmental review of the EIR/EIS will be conducted in accordance 
with the requirements of NEPA (42 U.S.C. 4321 et seq.), its 
implementing regulations (40 CFR parts 1500-1508), other applicable 
regulations, and the Services' procedures for compliance with those 
regulations; and according to the requirements of CEQA (California 
Public Resources Code Section 21000 et. seq) and the State CEQA 
Guidelines (14 California Code of Regulations 15000 et seq.). This 
notice is being furnished in accordance with 40 CFR 1501.7, and 1508.22 
to obtain suggestions and information from other agencies and the 
public on the scope of issues and alternatives that will be addressed 
in the EIR/EIS. The primary purpose of the scoping process is to 
identify important issues raised by the public related to the issuance 
of ITPs for the BDCP. Written comments from interested parties are 
invited to ensure that the full range of issues related to the 
development of the BDCP and issuance of the ITPs are identified. 
Comments during this stage of the scoping process will only be accepted 
in written form. All comments received, including names and addresses, 
will become part of the official administrative record and may be made 
available to the public.
    Our practice is to make comments, including names, home addresses, 
home phone numbers, and email addresses of respondents, available for 
public review. Individual respondents may request that we withhold 
their names and /or homes addresses, etc., but if you wish us to 
consider withholding this information you must state this prominently 
at the beginning of your comments. In addition, you must present a 
rationale for withholding this information. This rationale must 
demonstrate that disclosure would constitute a clearly unwarranted 
invasion of privacy. Unsupported assertions will not meet this burden. 
In the absence of exceptional, documentable circumstances, this 
information will be released. We will always make submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives of or officials of organizations or 
businesses, available for public inspection in their entirety.

Reasonable Accommodation

    Information regarding this proposed action is available in 
alternative formats upon request.

    Dated: January 15, 2008.
Angela Somma,
Chief, Endangered Species Division, Office of Protected Resources, 
National Marine Fisheries Service.

    Dated: January 15, 2008.
Dale Morris,
Acting Deputy Regional Director, U.S. Fish and Wildlife Service, Region 
8, Sacramento, CA.
[FR Doc. E8-1219 Filed 1-23-08; 8:45 am]