New details have come to light regarding the US Army Corps of Engineers' June 20th decision to suspend the Willits Bypass' US Clean Water Act permit (404 permit): the first time the Corps has ever suspended a northern California project on Clean Water Act grounds.
The timing of the suspension was linked to CalTrans' efforts to resume importing soil from the Mendocino Forest Products (ie, Mendocino Redwood Company) mill site north of Willits, which is Big Orange's preferred source of fill to create the massive berm on which the freeway would be perched north of its roughly one-mile viaduct past Hearst-Willits Road.
CalTrans had to gain approval from the Army Corps to begin hauling fill from the mill site. With Big Orange's application to haul roughly 900,000 cubic yards of perhaps toxic soil and dump on Little Lake Valley's figurative kidneys sitting on Corps staff members' desk, they took the opportunity to conduct a thorough investigation of Big Orange's progress on their mitigation plan so far.
What they found was that CalTrans is flagrantly violating its permit, which includes a series of deadlines and benchmarks for the mitigation plan. Army Corps Chief Regulator Jane Hicks reportedly considers the mitigation work to be only five percent completed, whereas CalTrans claims the construction of the freeway is almost half-way complete (a questionable claim).
The Corps devoted an inordinate amount of staff time and resources to, in essence, holding CalTrans' hand through the process of developing the mitigation plan, so they are not taking the combination of incompetence and obstinance that has led to the delays lightly.
For example, the suspension noted that CalTrans has not even completed the required baseline study (which requires a full calendar year to complete) for the eight parcels it was supposed to have started the mitigation wetland establishment and rehabilitation on in July 2013 and completed by January 2014. The Corps is requiring that CalTrans compensate for the delays by meeting several criteria that will be quite difficult for Big Orange to carry out, including generating new wetlands mitigation and restoration projects in Little Lake Valley.
As this issue went to press, we learned that CalTrans has just responded to the suspension order by sending their crews home, pending a resolution of their differences with the Corps.
At first, Big Orange interpreted the Army Corps' permit suspension to mean they could continue select work on the Bypass, including on the southern part of the project. CalTrans claimed in a statement that they were poised to spend $100,000 a day in delays to keep only a portion of work going, forcing them to make the tough choice to call off construction completely.
Sending their 100-or-so construction crew members home early is no small move on CalTrans' part. It likely means that no further construction on the Bypass will take place this year. It is also an indication that Big Orange's negotiations with the Army Corps are not going well for CalTrans.
The Bypass' damage to wetlands is so severe that a condition of building it is one of the largest, most expensive mitigation plans in recent memory in Northern California. As presently written, the mitigation plan would cost at least $65 million and encompass more than 400 acres of Little Lake Valley land.
Yet, the mitigation plan would also involve excavation of roughly 266,000 cubic yards of soil to “create wetlands,” according to a federal court filing by the Army Corps last year. The mitigation itself would actually involve a considerable amount of wetlands destruction in the name of wetlands creation.
The group Save Our Little Lake Valley is calling for downsizing the northern interchange as part of any future agreement by the Army Corps and CalTrans, which they say would save 25-30 acres of wetlands. CalTrans designed a plan featuring exactly such a reduced northern interchange in 2007.
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In keeping with the Anderson Valley Advertiser's editorial stance opposing the Willits Bypass, as well as my own work as a journalist and activist, I have been working to oppose the Willits Bypass since December 2012.
On June 20, 2013, exactly one year prior to the Army Corps' announcement that it was ordering work to stop on the Bypass, I scaled a 100-foot-tall piece of construction equipment that was installing drainage tubes in the Little Lake Valley wetlands to block CalTrans' destruction of that area.
During my occupation of the stitcher, Army Corps Chief Regulator Jane Hicks made her initial compliance inspection of the Bypass construction. She followed up by writing up CalTrans for numerous violations, which paved the way for the current permit suspension to Caltrans District 1 Director Charles Fielder. Based on an on-site mitigation compliance inspection that took place while I was occupying the wick drain driver, on June 25th, Ms. Hicks' staff noted five “Corrective Measures” she required that Caltrans take. The first of these acknowledged that Caltrans had never studied the hydrological or epiaquic impacts of wick draining, precisely as I had been pointing out. Her order stated, “By September 1, 2013, schedule a meeting between Corps staff and Caltrans hydrologists to discuss potential secondary effects from wick drains on wetlands hydrology, specifically shallow epiaquic saturation and groundwater through-flow affecting wetland hydrology criteria and duration in existing wetlands.”
I occupied the so-called “wick drain stitcher” for 11 and-a-half days, shutting down work in the area entirely for a portion of that time. The California Highway Patrol SWAT team from Sacramento extracted me from my perch on July 1st.
Now, CalTrans' efforts to wrangle criminal restitution fees from me in connection with the wick drain stitcher occupation is finally limping its way into court. On Thursday, July 17th, CalTrans is slated to send their attorneys all the way from Sacramento to Ukiah to try to squeeze blood from a turnip.
Originally, CalTrans' restitution claim against me was $490,002. Then it became $481,155. The AVA published a great editorial deconstructing these figures this past January. With little explanation, Big Orange's accountants then decided they were about 221 percent off the mark when they filed the $481,155 claim. They reduced it to roughly $150,000 in the early-spring.
The Mendocino County DA was apparently prepared to let the whole restitution claim go, but someone at CalTrans specifically asked that I be made to pay. The restitution claims against other protesters who locked down to construction equipment have faded away.
How about this for a stilted regulatory system? CalTrans is free to prosecute me for 150 grand in damages they say I caused by sitting on construction equipment for a little over 11 days. But the maximum fine the Army Corps of Engineers is allowed to charge CalTrans for destroying a huge area of federally protected wetlands, in violation of a permit allowing Big Orange to destroy a huge area of federally protected wetlands, is $27,500 --18.3 percent as much.
CalTrans will spend more money sending their lawyers from Sacramento to Ukiah and than I'll make for writing this article.
I settled every other aspect of the case in January, pleading to two conditional misdemeanors that drop to infractions after two years of my not being convincted of any other misdemeanors, as well as 100 hours of community service (which I completed this past Monday). I had originally faced 16 misdemeanors and a maximum eight-year prison sentence. Instead, I made out prison-free.
I invite all my readers to attend the proceedings next week on Thursday, July 17th. The restitution hearing takes place at 9:30 a.m. in Courtroom “B,” Ukiah Courthouse. A rally on the courthouse steps takes place at noon.
Contact Will Parrish at firstname.lastname@example.org.