The Bypass ‘Mitigation’ Charade

In Little Lake Valley, aka the Willits Valley, CalTrans is preparing to destroy the largest area of wetlands as part of any Northern California construction project since at least 1977. That was the year the US Congress amended the Clean Water Act to require the US Army Corps of Engineers to enforce a “no net loss of wetlands” policy.

Big Orange’s spokespeople claim their plan to “mitigate” the damage from the process of draining, filling in, and paving over nearly 90 acres of wetlands more than compensates for the loss. The agency’s propagandists have even claimed, for example, that their new six-mile freeway would be “good for the fish.”

“This is definitely not our grandfather’s way of constructing a highway,” reads an exemplary post on the Willits Bypass Project web site, set up last month in an attempt to stem the tide of criticism the project has been receiving. “Learning more about the sustainable approach and care that has gone into the Willits Bypass Project offers special insight into Caltrans’ application of contemporary and world-class engineering practices.”

The statement does contain a kernel of truth. Learning more about Caltrans’ approach to “mitigating” the damage wrought by the Willits Bypass does, indeed, offer special insight into the agency’s practices.

Let’s start with the price tag. The so-called Mitigation and Monitoring Plan (MMP) for the Willits Bypass would cost California taxpayers at least $79 million. It is surely one of the most exorbitant environmental mitigation or remediation schemes any public agency has ever devised for rural California.

CalTrans claims the cost is only $59 million, but they are fudging the numbers there. While the “yet-to-be-funded” line item for the MMP pencils in at $59 million (see adjoining story), Big Orange has already spent at least $20 million on studying, preparing, writing, and starting to implement the “mitigation” measures. That isn’t to mention the cost of buying the properties where the “mitigations” would occur, which is at least an additional $10 million.

The price tag is that large for the quite straightforward reason that the scale of destruction is extremely great.  To raise a 20-to-30-foot high, 200-foot-wide earthen wall across nearly five miles on the east side of Little Lake Valley, connected by an elevated two-lane viaduct spanning more than a mile of the northern wetlands, Caltrans plans to fell 1,815 oak trees in total, according to a chart in the agency’s biological survey the agency conducted.  These trees comprised 23 acres of oak woodlands, according to CalTrans’ Mitigation and Monitoring Plan. Most of them have been cut down since March, including many that were several hundred years old.

CalTrans also plans to destroy at least seven acres of riparian habitat, including spawning grounds of two threatened and one endangered anadromous fish species (that figure is also from the MMP).  They plan to dry up large areas of creeks and “relocate” juvenile salmon and trout so their eardrums are not shattered by the extreme noise of constant piledriving.  They plan to destroy endangered plant species. They plan to destroy Northern Spotted Owl habitat.  All of these forms of destruction require some degree of “mitigation” under state and federal laws.

Most of the effort and expense of Big Orange’s “mitigation,” though, relates to the vast area of wetlands the agency plans to destroy in Little Lake Valley's northern end. The process of developing the elaborate wetlands mitigation scheme CalTrans now has in place has played out for years and involved input from an alphabet soup of regulatory agencies. Many politicians, including State Assemblyman Wes Chesbro, say they support the Bypass largely on the strength of the mitigation plan.

Even so, the mitigation proposal as it currently stands would likely cause more ecological harm than good. Amazingly, Little Lake Valley’s ecology would be better off without it. And therein lies a tale of how rich, powerful interests run right over over the interests of small communities, watering down environmental regulations to the point of futility as they go.

 

The Army Corps First Refuses to Cooperate

CalTrans has floated various ideas about how to compensate for the destruction of these wetlands across the years. The cycle of proposals and counter-proposals that resulted in adoption of the current plan began in 2008. That was the year several regulatory agencies began meeting in Sacramento and determined the parameters for Caltrans to follow, revolving around the “no net loss of wetlands” concept. Army Corps of Engineers reps were among those on hand.

It was also the year Big Orange’s real estate arm began an intensive phase of land negotiations with local ranch owners, which involved no small amount of arm-twisting, that resulted in CalTrans’ becoming the largest landowner in Little Lake Valley. The agency now owns about 2,000 acres of valley bottom land, on which it pledges to “create” wetlands, plant oak trees, install native plants, create animal habitat, and rehabilitate streams.

Initially, the regulatory agencies deferred to CalTrans to develop its own mitigation plan. The transportation agency consistently tried to get away with doing as little as possible to mitigate the damage to them. It was evident from CalTrans personnel’s foot-dragging that they had little idea how to go about “replacing” nearly 90 acres of the, even if they actually wanted to.

Owing to the Willits Environmental Center’s effective 20-year struggle to oppose the Bypass, its co-founders David and Ellen Drell secured the opportunity to be a participant in the meetings where the agencies formulated their wetlands mitigation strategy. “CalTrans repeatedly proposed that the Agencies issue the permits and trust that CalTrans would make a plan later that meets their needs,” Ellen Drell notes.

Not until March 2010 did CalTrans finally issue its first draft mitigation proposal. The Army Corps turned it down. A second, June 2010 proposal was also rebuffed by the Army Corps. The haphazard document merely identified all the properties that CalTrans had purchased as “mitigation properties” and largely proposed to employ cattle grazing as the primary means of “wetland enhancement” on these lands.

Some of the context for the Army Corps’ initial refusal to rubber stamp the project may have been a growing body of information that indicates most existing wetlands mitigation schemes have been abject failures. A 2004 UCLA study, for instance, reviewed wetlands impact projects in the Los Angeles basin authorized between 1991 and 2002 to determine how well they were mitigated. The study could not review a large number of the permits because many critical regulatory documents could not be found. Among the study team’s various alarming conclusions were that 58 percent of the mitigations were failures by current standards of wetlands function.

Meanwhile, the federal government’s General Accounting Office criticized the Corps of Engineers in 2005 for failing to follow up on permitted projects to ensure the required wetlands mitigation measures were actually being done as required. The Corps responded by issuing new mandates to the regulatory groups responsible for issuing permits.

One of the major factors working in CalTrans’ favor was a 2008 amendment to the Clean Water Act called the Compensatory Mitigation Rule (MR) unveiled by the Army Corps and the Environmental Protection Agency (EPA), which permit so-called “wetlands mitigation banks” as part of mitigating wetlands destruction.

Such banks are part of a now-global trend of wedding environmental protection to capitalist free market principles, as in the carbon credit market California enacted in 2012. Conceived in the 1990s, wetlands mitigation banking creates a regulated psuedo-market where wetland losses are traded for wetland gains. Developer A significantly impacts an acre of wetlands; instead of having to create an acre adjacent to the development, Developer A can purchase wetland credit from Mitigation Bank B, which has created X acres of wetlands.

Under the mitigation bank system, different values are assigned to different forms of mitigation. It is no longer necessary, in other words, to attempt to replace an acre of functioning wetlands with an acre of functioning wetlands. “Enhancing” one of a wetland’s functions, such as water quality or providing wildlife habitat, for example, counts for a certain number of points on an overall wetland mitigation scorecard. Establishing a new area of wetlands counts for more, as does preserving or restoring it.

In September 2010, Caltrans submitted a final draft of the mitigation proposal. Again, the Army Corps turned them down. By denying CalTrans the permit, the Army Corps sent a jolt through CalTrans' matrix of political supporters, including the erstwhile US congressional representative for this area, Mike Thompson (D-Kendall-Jackson).

 

The Wetlands Lottery Prevails

On September 11, 2010, Thompson's office dashed off a letter to the Army Corps urging the Corps to meet regularly with CalTrans, in essence, to hold their hand through the process of developing a satisfactory mitigation plan, and to inform his office any time the two agencies were to meet.

Thompson is a long-time booster of the Bypass. His fourth largest career donor, according to data I compiled from the web site Open Secrets, is also one of the most powerful political forces advancing the project: the construction lobby.

Under pressure from Thompson and other quarters, the Army Corps agreed to develop a mitigation plan on CalTrans' behalf. One of the Army Corp's regional wetlands experts, Dan Martel, determined from field surveys that Caltrans could satisfy the “no net loss” condition if cattle grazing were removed from 1,100 acres of the 2,000 total that CalTrans had purchased for the mitigation. The idea was that Oregon ash and other native woody vegetation would eventually re-establish itself, thus restoring soil organisms and moisture to those lands enough so as to compensate for the 90 destroyed acres.

While Martel's mitigation proposal was based on some very questionable assumptions – and the idea that it is possible to replace a wetland at all surely rates foremost among them – the link he made between cattle grazing and wetlands destruction is clear. There are different ways to graze cattle that are more or less ecologically harmful, but these livestock animals as a general rule destroy much native vegetation and compact soil, particularly in riparian areas, which causes water to rush into streams. The extra water velocity generates high peak flows during storms that cause erosion on stream banks and deepen waterway channels. As a result, water tables are lowered and less water is available in the soil for the late summer, potentially drying out riparian and wetlands area. Over time, re-vegetation of formerly grazed areas can allow the soil – and thus the watershed -- to recover.

Local ranchers who had leased their land and now hold grazing lease agreements with CalTrans were outraged. Martel's recommendations meant the ranchers would no longer be able to graze on the lands as per usual, or possibly at all. The California Farm Bureau, among the state’s most powerful lobbying entities, got involved. Ultimately, Rep. Thompson and the Farm Bureau negotiated to reduce the mitigation area from 1,100 acres to roughly 450. Grazing had been restored to the vast majority of the land. Martel’s recommendations have been scrubbed from the public record.

Ellen Drell notes, “Martel's field notes containing his assessments and recommendations appear as appendices in both the October 2011 and the January 2012 MMP, but his recommendations were never incorporated into the body of any subsequent document that was circulated to the public, draft or final.”

Now, for the rub of this entire story: Under the 2008 Compensatory Mitigation rule, Martel’s 1,100 acre mitigation proposal would have given CalTrans enough “credits” to achieve “no net loss of wetlands.” With only 450 acres to work with, though, CalTrans and the Army Corps were unable to develop a plausible scenario for securing the “credits” under their original rules. The pressure to meet a February 2012 funding deadline by the California Transporation Commission was building.

For CalTrans to abide by the rules of the game, they had to change the rules.

Some of the most ecologically significant areas of the CalTrans mitigation properties lie adjacent to Davis and Outlet Creeks on the north end of Little Lake Valley. These “uplands” are parts of natural levees, or slightly higher areas of ground, where sediment has been deposited by floodwaters across geologic time. They are inches to a few feet above the surrounding wetlands. They are a natural feature of any dynamic wetland or flood plain, and as such add richness and diversity to the landscape, including ecological niches for soil, wildlife, and trees.

The final draft of Caltrans' MMP revolves around scraping off the top layers of soil in these uplands with backhoes or other heavy machinery so that water will collect in pools in the adjacent area The water that Caltrans' “new wetlands” would capture typically drains into Davis and Outlet creeks, helping to maintain their flow rates. The areas that Caltrans plans to make concave feature a number of mature valley oak trees, which would be flooded and destroyed by the “new wetlands.”

Essentially, CalTrans intends to take ecologically valuable areas that are already part of functioning wetlands, scrape away the healthy top layers of soil, and then claim by virtue of the water collecting in the newly concave areas that they have created wetlands.

Army Corps scientist Dan Martel, as well as scientists with other agencies who studied these areas, unanimously agreed that these uplands should not be included as part of wetlands establishment. By contrast, the Army Corps of Engineers is giving these areas the highest possible credit score as part of the mitigation banking scheme, listing them as so-called “Group 2” mitigation areas.

Even with the artificial reclassification in place, CaltTans and the Army Corps still lacked enough points to achieve a high enough score to achieve “no net loss of wetlands. The two agencies made up for it with an “enhancement” scheme to plant exactly as many native wetland plant species as necessary to secure these extra points. There does not seem to be any scientific study in the public record to justify this intensive planting scheme.

On February 16, 2012, the Army Corps finally issued Caltrans a “conditional” permit to build the Willits Bypass and fill in the largest area of wetlands in northern California since the mid-20th century. Shortly after, the California Transportation Commission approved funding for the project.

Notwithstanding the particulars of how Caltrans’ wetlands mitigation lottery played out, it is worth bearing in mind that the entire project has violated the spirit and letter of the Clean Water Act from its inception. A 1990 agreement between the Environmental Protection Agency and the Army Corps establishes a three-part process, known as the mitigation sequence, to help guide mitigation decisions and determine the type and level of mitigation required under the Act. The first step in this sequence is as follows: “Adverse impacts to aquatic resources are to be avoided and no discharge shall be permitted if there is a practicable alternative with less adverse impact.”

As I and many others have noted before, there are extensively documented practicable alternatives to the Willits Bypass proposal.

 

The Timing of Direct Action

Even though the Army Corps of Engineers went out of its way to water down the permitting process on CalTrans’ behalf, Big Orange still had not yet met the conditions of this “conditional” permit as of January 2013, when a letter from CalTrans’ resident engineer for the project, Geoffrey T. Wright, obtained by project opponents, expressed confidence that the Army Corps would soon sign off on the start of construction, with a start date of “+/- January 28th.”

On that same morning, 24-year-old Amanda Senseman of Willits scaled a Ponderosa pine tree in the route of the Bypass, south of the Haehl Creek interchange perpendicular to Walker Rd., where the southern interchange of the freeway would be installed. She would remain in the ponderosa, in a platform 71 feet above ground, for the next 65 days.

Though countless people in Willits have opposed the Bypass across the decades, the regulatory and political system had failed – as it is more or less designed to do, given the way that system is tilted in the favor of massive bureaucracies and corporations like CalTrans. Direct action had become the most viable means of carrying the opposition forward. The direct action against the project stands only to grow until the project is canceled.

 

The Wetlands That Already Exist

For a more complete understanding of CalTrans’ proposal to create new wetlands in Little Lake Valley, let’s regard the Little Lake Valley wetlands that already exist. The Valley once teemed with these lush, marshy areas that formed when the area’s once-lively streams overflowed their banks and scoured the surrounding meadows with moisture and nutrients. The Central Pomo people knew the area by the evocatively intimate name Mto’m-kai, which closely translates to “Valley of Water Splashing the Toes.”

As Willits’ settlers set about gridding the land and marketing it to cattle ranchers and timber merchants, they rapidly removed the wetlands. The early Euroamerican pioneers incised streambeds, redirected creeks, constructed artificial drainage ditches, and ripped apart the hardpan layers of topsoil that contained much of the water, allowing it to seep slowly into the ground. Most American farmers and policymakers, as with Caltrans now, regarded the wetlands as a nuisance. Their main objective was greater and greater dry land for cultivation.

Some of the moisture that time had stored on the land remains, though, most notably within the marshy area extending across Route 101 on the west and Reynolds Highway on the east, on the north end of the valley.

Several waterways in the valley – Berry, Davis, Baechtel, Broaddus and Willits creeks – flow north. During the winter months, the flows from these streams collect and form a seasonal lake and wetlands: Little Lake. The overflow from Little Lake creates Outlet Creek, a mighty 130-mile tributary that joins the Eel River mainstem near Covelo. By various accounts, it is California’s largest remaining Coho salmon run.

These wetlands function in a manner akin to kidneys: absorbing the valley’s waters and slowly releasing them back into the system. As water flows through them minerals, sediments, and contaminants are absorbed and transformed by the plants, animals, and bacteria that occupy the many ecological niches therein.

According to the Environmental Protection Agency, wetlands in general are second only to the ocean in the number of biota inhabiting them. The nearly endangered tule elk, which re-emerged in Little Lake Valley this past summer after an absence of more than a half-century, as well as a wide range of migratory and local birds, foxes, rabbits, raccoons, opossums, bobcats, various amphibians, and hundreds of deer are only some of the wildlife that depend on the area and would be trapped on one side or the other of the massive obstruction the freeway would embody.

And then, there are the details of how and why CalTrans' plans to destroy these wetlands. To harden up the soft, moist ground characterized by extremely fine sediment, and thereby make it suitable for 18-wheelers bouncing and careening through the valley at highway speeds, CaTtrans first intends to piledrive roughly 55,000 four-inch wide polls called “wick drains” into a large area of the wetlands (to be clear: the 55,000 figure is an estimate). These plastic drains would be spaced on a grid three or five feet apart depending on the saturation of the soil. According to the bid package Caltrans advertised to engineering companies in 2012, roughly 1.35 million meters of plastic drainage wick material would be required for thus torturing and draining this area of land

Translated: 839 miles of drains driven into Little Lake. Granted, the actual amount of wick drain material CalTrans’ constructor contractor, FlatIron (a division of Europe’s largest construction firm, Germany-based Hochtief), actually uses may be less than this. It may be more.

As part of filling in the wetlands, CalTrans intends to remove between 12 and 40 cubic acres of topsoil off of Oil Well Hill, just north of Willits. The agency would orchestrate these excavations to the tune of an estimated 200 dump truck trips delivering gravel, soil, and asphalt in Willits every day for roughly two years. ¥¥

(Contact Will Parrish at wparrish@riseup.net.)