On May 7th, Caltrans goes hat-in-hand to the California Transportation Commission (CTC), which allocates funding for California transportation infrastructure projects, to request $30.986 million for the wetlands and riparian areas “mitigation” plans that I describe in the adjoining story. The CTC’s 11 esteemed board members, most of them members of California’s elite business circles with financial stakes in the real estate, construction, and transportation industries, are convening in Los Angeles to deliberate on 166 agenda items over the course of four hours.
Although one of the conditions of CalTrans’ Clean Water Act permit with the Army Corps of Engineers for the Willits Bypass is that it cannot begin construction before securing all mitigation funding, the Army Corps granted Big Orange an exemption to that condition. So that CalTrans could begin destroying trees and vegetation starting in February, the Army Corps merely required that CalTrans provide them a written “assurance” that the CTC would vote in its favor next Tuesday.
Whatever form the assurance took, it was probably superfluous. The CTC’s clearly established record is to rubber-stamp everything that comes before it, excepting rare instances where influential officials intervene in advance of the meetings.
Yet, on the surface, there is absolutely no justification for the CTC to authorize further funding for CalTrans’ mitigation project. CalTrans is going to the CTC as a proverbial emperor with no clothes. In what should be seen as a massive embarrassment to California’s transportation agency, as of this writing, it has been been unable to come to terms with the proposed manager of its mitigation lands, the Mendocino County Resource Conservation District (MCRCD), on an agreement to operate its roughly 2,000 acres in Little Lake Valley. CalTrans’ permit with the Army Corps of Engineers makes entirely clear that this funding is necessary.
Let’s be entirely clear about the legalities here, as described by Rosamond Crower of the Willits Environmental Center: “Special Condition 1 of CalTrans’ Clean Water Act permit with the Army Corps of Engineers specifies the Mitigation and Monitoring Plan (MMP) alluded to in the accompanying story as the document describing the required mitigation. Both this document and this condition identify the MCRCD as the long-term manager of the mitigation properties.”
The purported manager of those purported mitigation lands, the Mendocino County Resource Conservation District (MCRCD), indicates in a letter dated April 12th that they have been unable to come to terms with CalTrans on an agreement to manage the land.
No land manager should translate to no funding for Bypass mitigation. Under the terms of the Army Corps permit, no funding for Bypass mitigation should also translate into no construction on the Bypass.
CalTrans’ already in-place “exemptions” from the mitigation funding process help illustrate its officials’ habit of doing as little as they can get away with to abide by agreements with regulatory agencies, though, as well as the agencies have proved willing to accommodate themselves to Big Orange’s whims in most cases. But will the CTC prove so lax that its commissioners fund the mitigation of a project that has no mitigation lands manager, in flagrant violation of the federal government permit governing that mitigation?
In preparation for the CTC meeting, members of Save Our Little Lake Valley are organizing trips to Sacramento to attempt to convince legislators and regulators to convince the CTC to cancel the funding for the project. If there is one iota of democracy extant in the State of California, Sacramento legislators would intervene with the CTC for the reasons I’ve already outlined. For more information, see www.savelittlelakevalley.org.
New CEQA Lawsuit Pending Against CalTrans; SOLLV Issues Stop-Work Order Request
In an attempt to hold CalTrans and the regulatory agencies to account for its innumerable violations of permits, the Willits community group Save Our Little Lake Valley is in the course of filing a California Environmental Quality Act lawsuit to stop the Bypass.
As part of that process, SOLLV attorney Rose Zoia sent a letter to California Department of Fish & Wildlife (CDFW) District Manager for the Northern Region Neil Manji dated April 29th, requesting that CDFW officials issue a written stop-work order to Caltrans suspending its construction activity. The list of violations the letter compiles is impressive, and I will reproduce it at the end of this article.
Next week’s CTC meeting provides only one of the latest examples of how CalTrans is attempting to do a run around permit requirements it finds inconvenient. The National Marine Fisheries Service (NMFS), a federal agency that is one of a handful that had to review and approve of the Bypass, signed off on the project largely based on CalTrans’ promise to improve fish passage on culverts located at the South Fork and North Fork of Ryan Creek, a tributary that flows through Outlet Creek directly into the Eel River just below Ryan Creek Road north of Willits. The California Department of Fish and Wildlife was also involved in formulating this agreement.
Yet, CalTrans and the Mendocino Council of Governments are requesting as part of CTC Agenda Item #116 to delay the funding of this mitigation project for two more years, thus placing the entire project in jeopardy and subjecting federally-listed endangered and threatened fish species to potential harm.
NMFS Biologist Tom Daugherty, who authored the agency’s study of the Willits Bypass project, did not return calls requesting comment as of press time.
Wick Drains as ‘Minor and Isolated Intrusion’
There are environmental crimes CalTrans commits, and then there are the forms of environmental harm it omits from its official documentation, presumably to steer clear of regulatory headaches in the first place. Most notably, in the course of thousands of pages of documentation describing its plans for the Bypass, the agency’s ghost writers almost entirely omit any reference to one of the project’s greatest impacts: wick draining.
You will find a summary of wick drains in the adjoining story. CalTrans’ lonel wick drains reference is buried in Section 5.5.6 of its 2002 Draft Environmental Impact Report, as follows.
“The only activity that would penetrate into the groundwater table anticipated as part of any build alternative would be the placement of support piles and footings for bridges and structures; the relocation of groundwater wells; the placement of wick drains and any associated de-watering activities. These minor and isolated intrusions are not expected to impact the quality of groundwater.”
The wick drains are essentially wells up to 80 feet deep that would run continuously for an unknown length of time. CalTrans is essentially calling the installation of 55,000 wells that suck an unknown quantity of the water table, then, “a minor and isolated intrusion.” Either the agency’s personnel genuinely believe this statement or they are attempting to avoid answering to anybody regarding this enormously destructive aspect of the project.
As Bob Whitney, president of the Golden State Land Conservancy and a SOLLV member, has additionally pointed out, the turbid water the wicks collect on the surface of the ground are likely to drain into the adjacent Outlet Creek, thus greatly increasing sedimentation and filling in spawning pools.
And Willits rancher and artist John Wagenet summarizes the impact of wick drains on the salmon runs: “This absurd concept will not only create a dam above but a compacted dam below grade as well with unknown groundwater consequences.
Other Mitigation Charades
As a public service to these lawmakers and to the AVA’s readership, I offer several other examples of CalTrans’ mitigation charade in advance of the California Transportation Commission meeting.
Oak Trees: Caltrans counted 1,815 oak trees that would be cut in the project, most of which have already fallen to the saw, when its contractors surveyed the route in 2003. Their contractor, Atlas Tree Surgery of Santa Rosa, felled most of these trees in late-March and early-April, including many that are at least 200 years old.
It would be impossible to “mitigate” this damage. Nevertheless, Caltrans has a proposal to do so. Actually, they have three contradictory forms of mitigation that they have tossed out in three separate documents, such that it is difficult to take any of them seriously.
One document shows the amount of mitigation money for this aspect of the project dropping $3 million by slashing the amount of money allowed for things such as oak mitigation. Instead of $20 per oak sapling, Caltrans changes it to $5 per sapling. The number goes from 33,000 trees to 15,000 trees and 1,000 acorns. Another document says “if available.” “Why would a contractor plant trees when all he has to do is claim they are not available at $5 per tree?” asks Rosamond Crowder.
Endangered Grass: Caltrans' “mitigation” on North Coast Semaphore Grass, a federally listed endangered species, began in mid-January. Caltrans hired a group of individuals, led by local Willits plant expert Geri Hulse-Stephens, one-time chairperson of the Mendocino County Resource Conservation District (which, again, manages the Willits Bypass mitigation lands), to “relocate” the grass to a location just to the side of where the Bypass would run. The transplanting effort consisted of digging out the grass, walking it 50-100 yards across meadow, and re-planting it there. The area adjacent to where this wetlands grass is now attempting to re-establish itself will be partially dewatered by wick drains, then filled and compacted. It is very likely to die once construction begins.
Salmon Habitat: The project entails various kinds of impact to fish habitat, including the destruction of seven acres of riparian areas. Removing the trees from these areas invariably will cause sediment to wash into the creeks, for instance, filling in spawning pools. It will raise the temperature of the water, making it much more difficult for cold water-loving fish species such as the endangered coho salmon to survive.
Willits rancher and artist John Wagenet summarizes the impact of wick drains on the salmon runs: “This absurd concept will not only create a dam above but a compacted dam below grade as well with unknown groundwater consequences. All this in the very sensitive headwaters of the Eel River with the longest salmon and steelhead runs on the north coast.”
Yet, the impact that Caltrans and the Army Corps have attended in greatest detail is piledriving. In short, piledrivers of the size Caltrans plans to employ shatter the ear drums of juvenile fish.
One ill-defined way Caltrans would address the problem would be to dewater entire sections of creek. Section 4.2.3 of Caltrans' Conceptual Mitigation Plan notes, “One possible measure to minimize this harm could be stream dewatering, if water is present. The length of stream channel that would be dewatered would be determined through consultation with NMFS and CDFG fisheries biologists.”
It continues, “In order to dewater a stream reach within the Modified Alternative J1T area, cofferdams could be set up. Caltrans proposes to construct cofferdams with the use of heavy equipment below the OHWM. Riffle crests would be generally used as the locations for cofferdams. Juvenile salmonids may seek cover under cobble substrates during the time of year that cofferdam construction would be taking place, and they could be killed or otherwise adversely affected. Additionally, short term increases in turbidity and suspended sediment could affect fish behavior. To minimize these effects, block nets could be set to capture fish and relocate them temporarily prior to cofferdam construction.”
Summary of Request to CDFW to Issue Stop Work Order to Caltrans on the Willits Bypass Project —
Violations of CDFW Incidental Take Permit
The following conditions have not been completed, as required, prior to Caltrans initiating any channel-, ground-, or vegetation-disturbing activities related to the Willits Bypass Project in violation of the CDFW Incidental Take Permit (ITP).
• Condition 5.1 requires Caltrans to submit a detailed mitigation plan for the 1,486 acres of Habitat Mitigation Lands to CDFW.
• Conditions 7.1 and 7.3 permit construction work in the bed, channel, or banks of any stream only between June 15 and October 15 of a given year. Yet Caltrans has requested permission from CDFW to start this work prior to June 15th.
• Condition 7.2 requires “that removal of above-ground riparian vegetation from the streambanks only occurs between September 1 and January 31 of any year to avoid impacts to migratory birds”, which are also protect under Fish and Game Code section 3513. Yet Caltrans has requested CDFW to clear vegetation in riparian areas this Spring and Summer.
• Condition 8.4 requires Caltrans to submit a restoration and management plan for the Habitat Mitigation Lands prior to January 14, 2011.
• Condition 9.1 requires Caltrans to submit written documentation that it has allocated sufficient and approved funds in the Expenditure Authorization for the Project to ensure implementation of the ITP conditions; and that “Even if the Funding Assistance is provided, Permittee must complete the required acquisition, protection, and transfer of all Habitat Mitigation Lands and record the required conservation easements within 18 months of the effective date of the ITP”.
Violations of the CDFW 1602 Stream Alteration Agreement
• Measures 3.1 and 3.5 require Caltrans to submit detailed mitigation plans, protect and transfer Habitat Mitigation Lands, and record the conservation easement in favor of CDFW prior to channel-, ground-, or vegetation-disturbing activities and no later than December 11, 2011. This has still not been accomplished.
Violations of the NMFS Biological Opinion
The NMFS Biological Opinion protects Chinook and Coho salmon, and Steelhead. The Biological Opinion includes the following measure to further minimize impacts to these anadromous fish:
• Construction at each of creek crossing will be limited to the period between June 15 and October 15 of each year. Yet Caltrans is seeking permission to start earlier.
• Fish passage on culverts located at the South Fork and North Fork of Ryan Creek will be improved for all three anadromous species. Both of these projects are required mitigation for coho salmon with the CDFW. However, Caltrans and the Mendocino Council of Governments propose (in the May 7, 2013 California Transportation Commission agenda #116) to delay the funding for two more years. This places this required mitigation in jeopardy of not being funded and subjects these anadromous fish at a higher risk of harm.
• One or more years in advance of construction of stream crossings, Caltrans should plant riparian vegetation along the banks of Haehl, Baechtel, Broaddus, Mill, and Upp creeks to enhance the riparian corridor prior to the project’s vegetation removal. This has not begun, yet Caltrans is preparing to begin construction of stream crossings this Spring or Summer.
Request
CDFW immediately issue a written stop-work order to Caltrans to suspend activity on the Willits Bypass project.”
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