CAL Trans Inconsistencies by Rosamond Crowder
Caltrans Inconsistencies With Permits 3/30/13
404 Permit, issued by the US Army Corps of Engineers (ACE). Governs wetlands and waters of the United States. Issued February 26, 2012 as a conditional permit. Requires that there be a valid 401 permit. All conditions of the 401 are conditions of the 404 by reference. Also the National Marine Fisheries Service (NMFS) Biological Opinions (BO references the January ’12 Mitigation and Monitoring Proposal (MMP).
· When the Army Corps issued the 404 they checked to see if the 401 was in order. At the time the 401 was being amended. The Regional Water Quality Control Board (RWQCB) who administers the 401 replied “the Regional Water Board has determined that Caltrans is not authorized to conduct any channel-, ground-, or vegetation-disturbing activities associated with the Project until the baseline report is complete, the MMP is compliant with the MRP, and the new construction schedule is determined.” Only the construction schedule has been determined (The one posted on the Waterboard website does not comply with activity). The baseline report and the MMP are not complete.
· Condition 10 of the 404 requires the baseline study to be submitted for approval in the winter of 2012. The report is still not complete. How can the baseline be accurate after construction has begun?
· The Jan ’12 MMP says Conservation Easements (CE’s) were to be placed on the properties “no later than one year after the purchase date of the final mitigation parcel”. Final parcel purchase was 12/23/11 (2010?). Currently no Conservation Easements have been recorded.
· Special Condition 3 states that mitigation funding must be allocated before filling of wetlands can take place. The amount described in the MMP is just under $60 million. The CTC will be asked to fund this at their May 7th meeting in Los Angeles.
· Special Condition 16 requires that cyclone-type fencing be installed around all areas of Corps jurisdiction and associated riparian vegetation, that are not to be removed during project implementation to restrict access and ensure all movement of equipment and personnel occur within authorized construction impact areas. Areas around Haehl Creek would fall into this category. We have observed no such fencing.
· The RWQCB gave Caltrans an “early start” authorization 12/27/12 that waived condition 15 and 16 of the 401 permit until April 15th, ‘13. The Army Corps has given no memo that we know of releasing Caltrans from their obligation to the ACE to fulfill condition 15 or 16. (see 401 Inconsistencies)
· Other conditions of the 401 apply to the 404 as well. See below.
401 Permit, issued by North Coast Regional Water Quality Control Board (RWQCB). Governs water quality, wetlands and waters of the US. Issued August 6, 2010 with 62 conditions and references the June 2010 MMP.
· The June 2010 MMP has undergone serious revisions. At one point the RWQCB requested Caltrans to resubmit the MMP (go through public comment and all). Later they decided a “minor amendment” would suffice. Is there a decision document justifying this decision?
· The RWQCB gave Caltrans an “early start” authorization 12/27/12 that waived condition 15 and 16 of the 401 permit until April 15, 2013. We have yet to see a Decision Document justifying this authorization.
· 401 Condition 15 is the assurance that there is a long term mitigation land manager and the amount of money for the endowments are determined (short term and long term endowments are separate, approx $11.5 million each) and must be completed “90 days before channel-, ground- or vegetation-disturbing activities”.
· 401 Condition 16 is the design of the temporary Haul Roads. From the CDFW early start memo (1/15/13) we know the CDFW had not approved the haul road design.
· Attachment 1 requires a Groundwater Characterization Study to determine if discharge waters (from the wick wells) have a low threat to water quality. (common toxics found in valley water include arsenic and boron). We don’t know if this has been completed. We expect wick drains to be installed “in the spring”
· Attachment 2 describes “five new saplings for each oak lost”. There is no indication that the number of oaks lost have been counted. The Jan ’12 MMP instead describes acorns planted in triangles, references a map of the alignment footprint and says planting will be as-built. No numbers of triangles or ratio to trees lost.
· The Baseline Report was due to be submitted 1/31/13. It is not complete. Yet RWQCB authorized construction to start so the baseline may be altered.
· The MMP is also not complete. It includes most importantly The Grazing Plan. A draft was submitted a week late (May of 2012) and a final version has not been issued.
· Ryan Creek Fish Passage design was due June 30, 2012. It is still not complete, partly because there were changes to the creek this fall (2012) following work on the county road culvert.
1600 Stream Alteration Agreement, issued by California Department of Fish and Wildlife (CDFW), Governs work in streams below the High Water Mark. Originally issued 6/29/10. References the June 2010 MMP which is undergoing revision. Caltrans missed numerous completion dates, many conditions still not complete. Caltrans officially requested a “minor amendment” to the 1600 on 9/17/12.
· Condition 3.1 references lowland oak woodland mitigation to be 22 acres of new oak woodland to be planted. Have the oaks lost been counted? Where is this new oak woodland? I cannot find it on the maps in the MMP.
· Condition 2.14 Removal of riparian vegetation is prohibited except as represented in plans and is to be identified to all workers.
· Condition 2.20 refers to temporary haul roads. These were not approved in January ‘13 when the go-ahead was given.
· Caltrans was supposed to have recorded conservation easements and transferred mitigation lands to the MCRCD by 12/29/11. Neither of these things have happened. MCRCD may not take title for 5-15 years if at all. No word on conservation easements.
Before initiating channel-, ground-, or vegetation-disturbing project activities”. There were things to complete.
· The MMP was to be finished by 12/21/10. It was instead split in two parts and the second part is still not complete.
· Condition 2.12 ESA fencing (temporary orange construction fence or other highly visible material) shall be installed as per project plans, inspected and approved by CDFW.
On 1/15/13 CDFW issued a memo authorizing early start even though the above conditions had not been met. As of 3/30/13 the amendment was not complete. We have no Decision Document justifying this action.
Incidental Take Permit, issued by California Department of Fish and Wildlife (CDFW), Governs take of threatened fish and semaphore grass. Issued 7/14/10. References the June 2010 MMP which is undergoing revision. Caltrans missed numerous completion dates, many conditions still not complete. Do not have a date when Caltrans officially requested an amendment.
· Conditions of Approval that pertain to all channel-, ground-, or vegetation-disturbing project activities are that ITP time frames shall be adhered to. Obviously they are not.
· Condition 7.2, removal of above –ground riparian vegetation from streambanks must only occur between September 15 and January 31 of any year to comply with the Migratory Bird Treaty Act. There is NO provision in the permit for working outside this window.
Before initiating channel-, ground-, or vegetation-disturbing project activities, many things were to be complete.
· Condition 5.1 references the incomplete June 2010 MMP and says it must be completed by 12/31/10. It is still not complete.
· Condition 9 requires funding assurances for mitigation, BEFORE start of construction. The total they estimate is $34.5 million (about $4 mil Ryan Creek, $11.5 mil land acquisition, $7mil constructing mitigation treatments, $12 mil endowment). These numbers are different than the ACE permit requires ($59 mil) and also different from what Caltrans asked in March of 2012 ($54 mil) and also different from the CDFW Early Start Memo ($26 mil).
· Condition 8, Ryan Creek Fish Passage design was due 6/30/12. It is still not complete.
Condition 8.4, requires transfer of fee title of mitigation lands to MCRCD (or other approved entity). Again, MCRCD may not take title for 5-15 years if at all. This condition also requires conservation easements. They were supposed to have this completed by 7/14/11 (18 months after ITP issued). As of 6/5/12 there were not even any drafts (communication with Craig Martz, CDFW who wrote the permit