How CT Gets Away With It
Bypass Northern Interchange area. Photo by Steve Eberhardt of the Willits News

[Updated: Sept. 21, 2013]

Throughout this year, a combination of direct action opposition and legal initiatives have slowed construction of the California Department of Transportation’s Willits Bypass, garnering widespread attention and scrutiny of the project. But an effort to compel Caltrans to reduce the size, impacts and costs of the four-lane freeway bypass segment of Hwy 101 around Willits has persisted for more than two decades.

In this time, people who have attempted to stop the highly destructive and wasteful project have become intimately acquainted with CalTrans’ methods of gaining approval for large, expensive freeways. In pushing the Willits Bypass, CalTrans has engaged in a pattern of dissembling, influence peddling, exploitation of misunderstandings among regulators, and outright illegality. We are providing this resource both for the benefit of Mendocino County residents who are seeking background on the Bypass, as well as for people who are faced with unnecessary, destructive Caltrans projects in other area of California.

The following key points and documentation comprise the essence of our findings. This page is a work-in-progress that will be periodically updated as more information becomes available.

1. CalTrans ignores the law whenever they find it practical to do so, or whenever they can get away with it.

For more than two decades, Caltrans has worked intensively to secure approval of all regulatory agency permits that establish the protocol they are to follow in constructing the Bypass. Given this oft-contentious history with state and federal regulators, you might think that CalTrans would strictly follow these protocols once the construction finally began.

Yet, on the very first day of construction of the Willits Bypass — February 25, 2013 — Caltrans and its contractor were forced to call off the work they had planned for the day when they were found to be in violation of the Migratory Bird Treaty Act — and, by extension, their own Environmental Impact Report..

Joann Dunne inspects a bird nest pointed out by Little Lake Valley defenders. [Photo courtesy of Adrianna Oberg]
Joann Dunne inspects a bird nest pointed out by Little Lake Valley defenders in the East Hill Rd. area of the Bypass construction zone on 2/25/13. [Photo courtesy of Adrianna Oberg]

The events of that day are worth recounting in some detail, not because the legal violation at issue is particularly unique, but because these events exemplify Caltrans’ pattern of dissembling and evading its legal requirements in a compelling way.
Caltrans’ contractors were attempting to install fencing in the southern portion of their intended Willits Bypass route to demarcate the construction area, so that they could begin cutting trees and removing brush. Caltrans spokesperson Phil Frisbie, Jr. was on hand. When activists asked him if the agency had completed all relevant bird surveys, as agreed to with the California Department of Fish and Wildlife (CDFW), he claimed they had.

These activists shortly thereafter discovered bird nests in the project construction swath. They called the Department of Fish and Wildlife, which dispatched a biologist named JoAnn Dunn. Upon arriving at the site, she called off the project for the day. Later, it turned out CalTrans hadn’t completed viable bird surveys, contrary to Frisbie’s claim, but rather had contracted with a private engineering firm to write up a document composed of little over a page of text, roughly half of which described an extremely cursory bird survey. Construction was delayed by over three weeks as the CDFW forced Caltrans to conduct more legitimate bird surveys. Meanwhile, direct actions by project opponents ensured Caltrans contractors didn’t continue with the fencing.

Section 4.8.3 of CalTrans’ Willits Bypass EIR reads as follows: “Pre-construction clearance surveys for nesting sensitive bird species would be conducted by a qualified biologist no less than 30 days prior to the start of vegetation removal. Vegetation removal would be performed during winter where possible to comply with the Migratory Bird Treaty Act. Survey results would be provided to [California Department of Fish and Wildlife]… upon completion of each survey. If sensitive species were found nesting in the project area or within 0.5 mi (0.8 km) of it, Caltrans would consult with the resource agencies to develop a strategy to further minimize the project impacts to these species.”

This episode was a microcosm of the power dynamics that have shaped the Bypass thus far: Caltrans complies with the law when they are forced to do so. Typically, activists are the ones holding them accountable for these obligations. Absent the pressure from these activists, the regulatory agencies are very often remiss in doing their job.

The same dynamic played out when Caltrans contractors began hauling soil to dump on the Liittle Lake wetlands in late-August. The source of the soil was the old Apache Mill north of Willits, a former Louisiana Pacific saw mill. FlatIron/DeSilva Gates’ fill hauling trucks dumped this soil on the Little Lake wetlands’ “wick fields” for nine days.

Trucks hauling soil to dump on the northern Little Lake Valley wetland “wick fields.”
Trucks hauling potentially contaminated soil to dump on the northern Little Lake Valley wetland “wick fields.”

The filling operation was clearly illegal under the terms of the 1975 Surface Mining and Reclamation Act (SMARA), being that it had not undergone any public review process. Abandoned mill sites are notorious for having high levels of chemical contamination. A lawsuit by the Willits Environmental Center and Keep the Code against the Mendocino County Planning Department halted the operation.

Not only did the hauling of fill violate SMARA, it violated CalTrans’ own permit with the Regional Water Quality Control Board: the 401 Permit. Condition 47 of this permit states: “All imported fill material shall be clean and free of pollutants. All fill material shall be imported from a source that has the appropriate environmental clearances and permits. The reuse of low-level contaminated solids as fill on-site shall be performed in accordance with all State and Federal policies and established guidelines and must be submitted to the Regional Water Board for review and concurrence.”

Neither CalTrans nor its contractors submitted their fill hauling plan to the Regional Water Board for review. And, far from establishing that the fill material is free of pollutants, the survey of contamination at the mill site that CalTrans conducted reveals elevated levels of chromium, mercury, and other dangerous chemicals, while failing to test for the most common of mill site contaminants, dioxin.

This activity also violated Chapter 5, p. 161 of CalTrans Draft EIR/EIS os 2002: “Any borrow site used to provide fill for the project other than the designated site (Oil Well Hill) will be analyzed and submitted for review in advance by the resource agencies.”

For more thoroughgoing documentation of Caltrans illegality, see the following.

* A list of CalTrans permit violations on the Willits Bypass project (compiled in April 2013).

* A letter from SOLLV and Keep the Code to the Department of Fish and Wildlife outlining some of these violations.

* CalTrans Migratory Bird Treaty Act violations by Ellen Drell

* CalTrans Permit Violations Found by State Water Resources Control Board

* Army Corps of Engineers Notice of Noncompliance to Caltrans

2. Caltrans sets high and arbitrary goals for a project, which eliminate more reasonable alternatives from serious consideration.

[For a thorough treatment of this issue, see the video “How Caltrans Sold the Willits Bypass.”]

A. Caltrans misuses ‘Level of Service’ standards to eliminate smaller projects: “Level of Service” (LOS) is a subjective measurement of drivers’ perception of their driving experience. LOS is widely used in Caltrans Purpose and Need statements to plan the amount of lanes needed for a project. In Willits and other locations, Level of Service (LOS) “C” has been used as a way to eliminate all two-lane options for alleviating traffic congestion. Because of the way Level of Service is calculated, two-lane highways can rarely meet this high and arbitrary standard. In Olancha, a waypoint on US Route 395 in southern California, Caltrans is using the goal of LOS B as a means to eliminate two-lane alternatives from serious consideration.

B. Caltrans makes false claims that federal agencies and documents dictate highway design features. In the case of the Willits Bypass, Caltrans claimed that they were forced to construct a four-lane freeway because of Federal Highway Administration (FHWA) requirements of Level of Service “C”. Willits-based engineer RIchard Estabrook filed a series of Public Records Act requests to Caltrans and FHWA, confirming this claim to be false. In actuality, the FHWA would have allowed or funded any project that reduced congestion in Willits (see KGO video footage here), regardless of its “level of service.” This lie has been pervasive. Caltrans Director Malcolm Dougherty used it as a primary justification for the Bypass in a letter to State Senator Noreen Evans. The Army Corps of Engineers referenced it in a legal briefing pertaining to the Willits Environmental Center, et al.’s federal lawsuit. It appears in some of Caltrans’ environmental impact review documents.

(Also see: FHWA_summary by Richard Estabrook)

In the cases of the other new projects that we’ve studied, Caltrans claims that it is “required” to build at least a four-lane expressway because of the Interregional Road System Requirements (IRRS), which “mandate” a minimum of a four-lane expressway. An analysis of the IRRS “requirements” reveals that these are created within Caltrans, and are not enforced by any external agency or law. There has never been any environmental review of the planned expansions to the freeway system anywhere in the state, meaning these documents can only be used for general guidance and not decisions. (Conversation with David Bricker, Caltrans Environmental Planning, August 26, 2013). It appears that approving agencies like the Army Corps of Engineers do not understand the nature of these “requirements”, and that they accept Caltrans claims at face value. (Caltrans letter to USACE).

Willits Graph
Graph by Richard Estabrook

3. Caltrans justifies the “need” for large projects by dishonestly increasing the amount of traffic projected to use it.

A. High and unsubstantiated growth projections: Caltrans projected a high rate of growth in the Willits Bypass EIR/EIS (2006). Even after eight years of declining traffic volumes, Caltrans never updated the projections, still claiming in 2011 that traffic volumes were increasing. [See graph: the red line indicates Caltrans growth projections that were never updated to reflect changing conditions, and the blue line that shows actual traffic volume. These inflated projections are necessary to convince the public, elected officials and regulating agencies that the project is needed to prevent future congestion.]

According to the Mineta Transportation Institute and USPIRG, cited by Fox news and the New YorkUS Pirg Growth Times, traffic volumes have been declining since 2005, and no longer follow population growth.

Nevertheless, Caltrans projects a sustained annual growth rate of 1.5% to 4% in all the projects we studied. (These figures are taken from the Environmental Impact Reports or Project/Traffic Reports.)

Hinkley Graph Growth
Graph by Richard Estabrook

Shopper local trafficFor example, because of contaminated ground water made famous by Erin Brockovich, people have been leaving Hinkley, CA — site of a proposed Caltrans bypass on Highway 58 — for the last ten years. However, Caltrans claims Hinkley will experience a growth rate of four percent per year. See chart.

New planned rural projects all over the state use these high growth rates to justify expensive new freeways. (Watch a 10 minute video presentation Willits Growth projections made by Caltrans.)

C. Faulty Modeling: Caltrans claimed to need an extra lane to accommodate all the people using the Willits Bypass to ‘get across town’ (2/13/12 Arseneau Letter). We determined that Caltrans had put drivers on the bypass even when it would take them longer to use the Bypass. They needed the high traffic projections to justify the ultimate four-lane design (see video for a detailed explanation on what Caltrans did with traffic modeling).

Caltrans False, Incorrect or Misleading Statements Used to Justify the Willits Bypass

1. Caltrans Claim: Level of Service “C” is a goal and policy of Mendocino County.

ctdestruction“The minimum of LOS “C” is a goal and policy…included in the Caltrans Transportation Concept Report for US 101, in the MCOG Regional Transportation Plan, and the General Plans for Mendocino County and the City of Willits.” Department of the Army Permit Evaluation and Decision Document, p 74 and 75.

Facts: The actual Level of Service listed in the referenced documents is LOS “D”:

a. Hwy 101 Transportation Concept Report: “The preferred Level of Service for Route 101 is “C” for four-lane segments in rural areas, and “D” for urban areas and two-lane segments in rural areas.” Caltrans Route Concept Report for Highway 101 Corridor, p 4

This picture of Willits north of town is from Caltrans’ own traffic camera that streams online. The amount of traffic that traverses this section of Highway 101 is approximately that which would use the Willits Bypass.
This picture of Willits north of town is from Caltrans’ own traffic camera that streams online. The amount of traffic that traverses this section of Highway 101 is approximately that which would use the Willits Bypass.

b. Mendocino County Regional Transportation Plan: “…a minimum Level of Service of D in “urbanized” areas”. Page 24. According to FHWA, urban areas have more than 5000 people. Phil Dow, MCOG executive director, confirmed the Willits Bypass segment is in an “urbanized” area.

c. The Mendocino County General Plan: contains no reference to Level of Service.

d. The Willits General Plan: “LOS D is generally regarded as the minimum standard.” P. 111-8; and “Prevent gridlock by maintaining a roadway level of service of D or better.” 2.200 Circulation Policies.

Why it matters: Caltrans used the standard “Level of Service (LOS) C” to eliminate all two-lane alternatives. When questioned why they used this as the ‘brick wall’ for eliminating cheaper alternatives, they justified this decision by saying it was a goal and policy of Mendocino County, and also, that the Federal Highway Administration would not allow anything below this standard. As we know now, both of these things are untrue.

2. Caltrans Claim: Caltrans considered and studied two-lane alternatives to the four-lane Bypass.

“Since project planning for the Willits Bypass began in 1962, approximately 30 alternatives have been considered and studied.” – Appendix J, Willits Bypass FEIS/FIER, Page 1 of 6

Fact: No 2-lane alternatives were seriously considered, presented as an option to the public, or included in the EIR/EIS because none could meet the Purpose and Need Statement goal of Level of Service “C”.

a. “…a two-lane alternative was not included in the range of alternatives studied in the DEIS/EIR.” (Response to comment 34-15, Volume 2, FEIS/R.)

b. “Based on the purpose and need of the project, a two-lane highway would result in a facility that would be functionally obsolete* within the design period.” (“Alternatives Considered But Eliminated From Further Study”.)

* “Functionally obsolete” within the context of the Willits Bypass project means: will not operate at an acceptable Level of Service (e.g., not operate at LOS C) within the design life of the project.” (Response to comment 34-31,

Why this matters: A two-lane alternative would have been chosen as the “Least Environmentally Damaging Practicable Alternative” (LEDPA) mandated by the Clean Water Act. Because Caltrans successfully eliminated any two-lane alternatives from consideration in the Draft Environmental Impact Report, agencies like the Army Corps of Engineers could only choose the LEDPA from the four-lane alternatives presented.

3. Federal Highway Administration (FHWA) “Requirements”.

Caltrans Claims: “FHWA regulations do not allow development of a facility that would be functionally obsolete within its design life.” — Willits Bypass EIR/EIS S.3.1 p. S-6

“Only 4-lane routes could be considered due to a Federal Highway Administration requirement that all new highway projects must have at least a 20 year service life providing a level of service (LOS) of at least “C”.

Fact: FHWA has no LOS requirements, and “functionally obsolete” has no meaning with FHWA or anywhere in traffic engineering or roadway design. FHWA Letter EstabrookFHWA confirmed by letter and phone that they would have allowed or funded any project that relieved congestion in Willits, even if it had operated at LOS D or E. Currently, Caltrans is claiming FHWA requires them to follow their “Purpose and Need” statement; however, after a Public Records Act Request submitted 30 days ago, they have been unable to provide any documentation confirming this statement. FHWA has also been unable to confirm this.

4. Caltrans Claim: Traffic volumes are increasing in Willits.

Willits Graph“Traffic Congestion has been a concern in Willits for a number of years, and it is becoming more prevalent as the traffic volume increases.” — Willits Bypass Final 404 (b) (1) Alternatives Analysis. Page 3-2.

Fact: “There has been a decrease in peak hour traffic along US 101 over the previous 12 years”. Jan 31, 2012 letter to Jane Hicks from Nicholas Deal, Chief, Office of Travel Forecasting & Modeling (Nicholas Deal Letter).

5. Caltrans Claim: Significant amounts of local traffic would use the Bypass.

Troy Arseneau, Caltrans chief of traffic operations
Troy Arseneau, Caltrans chief of traffic operations

“…freeway segments…attract travelers from within the urbanized area who want to ‘get across town’ more quickly…Because of this increase in traffic volumes…an additional travel lane in both directions…would be required…” — February 13, 2012 letter to Jane Hicks from Troy Arseneau, Chief, Office of Traffic Operations, Caltrans.

Caltrans is projecting that 40% of the total volume using the Bypass will be vehicle trips with an origin or destination in Willits. Caltrans letter regarding traffic model (Rick Knapp to Richard Estabrook).

Fact: “..the resultant highway will separate through traffic from local traffic in Willits and be used minimally by local traffic due to the location of the interchanges.” Phil Dow, Executive Director of Mendocino Council of Governments. (CMIA Responsiveness Document #8)

Willits Citizens for Good Planning built a traffic model based on Highway Capacity Manual specifications. Our modeling shows that virtually no in-town trips (origin and destination within the City and Brooktrails) would use the Bypass. For more details, see local traffic analysis.

6. Caltrans failed to correct the statement that a two-lane Bypass would operate at LOS E upon completion.

Caltrans Claim: “A two-lane facility would not provide better than an ‘E’ level of service in the short term, and could not begin to adequately accommodate future traffic growth which is expected to increase by approximately 60% over the next 20 years.” (The purpose and need statement submitted in 1995, which also appears in Appendix G of the Draft Environmental Impact Statement (DEIS).

Fact: A two-lane facility would operate at level of service (LOS) D throughout its design life (FEIS, Volume 1, Page 1-17), not LOS E. This claim from 1995 was the basis for the agencies’ support of the Memorandum of Understanding confirming the Purpose and Need Statement. A correction of this claim was not brought to the agencies’ attention.

7. Wick drains do not warrant environmental review.

Wick drains installed in Little Lake Valley. According to CalTrans, these drainage tubes do not cause significant environmental impact, but rather are “minor and isolated intrusions.”
Eighty-to-85-foot-long wick drain tubes installed in Little Lake Valley. According to CalTrans, these drainage tubes do not cause significant environmental impact, but rather are “minor and isolated intrusions.”

Caltrans Claim: “The only activity that would penetrate into the groundwater table anticipated as part of any build alternative would be 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.” Willits Bypass EIS/EIR Page 5-42

Fact: Caltrans plans to install 55,000 wick drains, 80 to 85 feet deep, on approximately 40 acres of wetlands. Wick drains are intended to rapidly de-water and compact the entire area. There has been no analysis of the potential impacts of this extensive use of wick drains on the quality or hydrologic conditions of the groundwater nor on neighboring wetland mitigation areas, streams, or flooding risks.

Letter to US Army Corps of Engineers from Willits Citizens for Better Planning

“We believe that the examples of false, incomplete, or inaccurate information presented above are significant enough to warrant re-evaluation of Caltrans’ permit, especially as it relates to the northern interchange. The current design of the northern interchange is the most environmentally-damaging aspect of the entire bypass, permanently destroying about 40 acres of wetlands. We are asking that ACOE suspend Caltrans’ existing permit and modify the permit to conform to Caltrans original concept articulated in the 2006 Willits Bypass Project Report (Page 6-3), which calls for an at-grade signalized intersection at the north end of the project for Phase I construction. Our calculations indicate that a signalized intersection or roundabout in lieu of the proposed interchange would reduce total wetland impacts from 40 acres to less than 10 acres.

“The simplified northern terminus would have other advantages as well. It is highly unlikely that Phase II funding will materialize in the foreseeable future given the high cost of completing the four-lane bypass and the extremely low volume of traffic likely to use it. Destroying an additional 30 acres of wetlands to build an interchange on the highly speculative assumption that four lanes will eventually be built is not in the public interest, especially given the increasing controversy and media scrutiny regarding this project.

“A simplified northern terminus would meet the general goals of the bypass by reducing delays for interregional traffic. Based on preliminary calculations, either a signalized or roundabout intersection would provide LOS C or D, roughly the same LOS as the two-lane Phase I mainline section of the bypass would provide.”