The county set the possible fine at as much as $5.23 million per day to locate and follow proper procedures for a fraction of the wells — the most extreme measure thus far in a long-running jurisdictional spitting contest. The county says the state should have obtained permits, licenses and inspections for 523 narrow wells drilled from January 1990 to May 2014, according to a notice of violation obtained by CalWatchdog.

The wells, four to six inches in diameter, are used to monitor geological conditions and water levels for safe building purposes. State water laws are aimed at making sure the holes, which can extend hundreds of feet into the ground, don’t allow for untreated stormwater or hazardous chemicals to pollute groundwater, which the holes often intersect with.

Caltrans lawyers have for years advised staff that while the agency was subject to the laws, Caltrans could police itself. The agency relied on those opinions in deciding not to obtain the same approval and paperwork from county agencies required of a private individual or company undertaking similar drilling.

Under pressure from county environmental agencies, Caltrans shifted its stance in 2014, announcing its intent to follow the law going forward and outlining a plan to locate wells throughout the state and to work under the proper license.

“Our intention has always been to play by the rules, and ensuring that you are in compliance is always a best practice, whether you are an individual or a state department,” Caltrans spokesman Mark Dinger said.

Statewide

The dispute with Sacramento County is one of several across the state involving the drilling regulations. The agency has had relatively recent run-ins in Marin, Mendocino, San Joaquin and Humboldt counties. Some of those counties and others have filed records requests on well drilling in their jurisdictions.

The state estimates it drilled 10,000 borings across the state since 1990, though some would not have been subject to the state Water Code at issue.

CalWatchdog asked Dinger why the state agency failed to fully adhere to state and local laws during that time.

“Caltrans adopted policies in 2014 to ensure that its operations are in full compliance with the California State Water Code and the local enforcement agencies’ standards, and is working with local enforcement agencies to resolve issues from previous practices,” Dinger said.

The Sacramento County issue

As a result of not alerting Sacramento County and not keeping adequate records, Caltrans lost track of most of the wells, although some may be covered by structures. At the county’s urging, Caltrans tried to locate all 523 wells in 2015, finding 35.

The notice says that the records of how the 35 were sealed did not match what was observed by county inspectors, and internal discussions suggest that the wells were not sealed appropriately.

Cheryl Hawkins, supervising environmental specialist with Sacramento County’s Environmental Management Department, would not say whether any testing to check the groundwater had been done to follow up on Caltrans’ drilling. Hawkins said that failing to follow county standards has “potentially caused groundwater contamination,” but added there’s no “concrete evidence” of contamination.

Caltrans’ Dinger said the state does not test groundwater as part of its drilling, but it had taken extra precautions when drilling “in or near areas of known contamination.”

Caltrans was ordered to find 16 particular holes to comply with the violation notice, but only found four. Sacramento County is working on a response, which will include any enforcement actions, including the a fine, if there is one.

Background

In 2014, Sacramento County environmental official Susan Williams noticed a Caltrans work crew drilling in Courtland. Williams, who has since retired, told the crew that work could not continue until a permit had been obtained, an inspection had been scheduled and other requirements had been met.

The crew chief told Williams that Caltrans was “exempt from local agency permitting requirements,” according to the county violation notice.

Williams issued a cease and desist letter, pointing out the site they were drilling, along the Sacramento Delta, was a “sensitive area” with respect to groundwater and required a special sealant to prevent contamination through improperly sealed wells.

It was not the first time Williams had wrestled with Caltrans. In 2003, Williams and another county official told a Caltrans crew that permits for drilling were required and said the county would cite anyone tied to drilling.

Williams emailed Caltrans staff in early 2015, asking for documentation on the agency’s plan to find and backfill the holes. Based on what she’d seen so far, “nothing even came close to being sealed properly.”

Meanwhile, some Caltrans employees were urging change.

Internal cracks

Caltrans had made coordination with counties optional and had developed a form letter to provide notice when the agency planned to drill a well. The letter was rarely issued. The agency had determined that employees, consultants and contractors did not need to obtain permits for the drilling or pay related fees.

And the agency decided it would work under a C-57 professional license — typically required when water is struck — only when drilling in or near areas of known contamination.

That policy worried Douglas Brittsan.

In a Feb. 2014 email to Geotechnical Services division’s upper management, including the then-Geotechnical Design regional chiefs and then-Deputy Division Chief Phil Stolarksi, Brittsan, the supervising transportation engineer, asked the group if notification to counties was required. Brittsan said that the language in the boilerplate cover letter said Caltrans would comply with a county’s program, but that “we currently are not.”

Brittsan said the state didn’t have the equipment needed to backfill the holes properly and noted that Caltrans’ preferred method for backfilling was not allowed in some counties.

“Notification is not a requirement,” said Timothy Pokrywka, one of the regional Geotechnical Design chiefs.

Brittsan argued that it was best to notify anyway. Otherwise they were subject to “getting spotted and ratted on, and with the county having no record of us being there.”

“Wouldn’t it be better if it was required so we are transparent with the county (or other agency)?” Brittsan asked before stating he didn’t “agree with our current policy,” calling it “wishy washy.”

Pokrywka said the issue had been “widely debated” among the division’s brass for years and that he used to agree with Brittsan.

“It was decided that each Office Chief has to manage their own risk,” Pokrywka wrote. … “It does put drilling services staff in a precarious position.”

Policy shift

By April 2014, Brittsan had persuaded enough people to play by the rules. Under pressure from Sacramento County, the policy shifted. Agencies needed to be notified ahead of time, and local procedures were to be followed. Well completion reports were to be filed. And workers were to fill the wells with the preferred sealant with a device called a tremie used to guarantee the seal within groundwater.

The licensing issue was still being worked out internally, so activities requiring a C-57 were subcontracted out and the subcontractors were demanding that the rules be followed or else their license couldn’t be used.

“If your work falls under the Water Code then that code needs to be followed and Caltrans is NOT exempt from its requirements,” Brittsan wrote to staff. “Ostensibly, Caltrans is exempt from obtaining permits and paying fees, however (the contractors) are requiring that we obtain permits and pay fees or else we cannot use their license.”

In June 2014, Caltrans Director Malcolm Dougherty sent a memo to Brian Kelly, the secretary of the California State Transportation Agency, stating that Caltrans now agreed with Sacramento County about following local procedures.

Dougherty admitted to Kelly that the lack of documentation, combined with an “ill-defined business process means Caltrans cannot represent that we have adequately protected groundwater during our drilling operations as required” by state law.

Caltrans has since worked with local agencies to locate and reseal old wells and follow the rules on new ones.

As of December, Caltrans reported in a informational document that it had found and properly sealed 7 percent of its borings on active and planned projects statewide. The agency will soon hunt for older holes and estimates less than 5 percent total will be accessible for resealing.

Caltrans estimates that $750,000 has been spent since 2014 in Sacramento County in the effort to go back and reseal previous borings and $3.7 million statewide. The agency estimates that to finish the job it will take “several million more.”

The law

In 1986, the Legislature amended the California Water Code to include in its definition of regulated wells many of the same kind Caltrans drills.

The measure and subsequent laws did several things, including defining the state as a person regulated by the law and setting a minimum statewide standard for best practices, requiring a C-57 license and the filing of well completion reports with the Department of Water Resources documenting proper sealing of the wells.

The law also empowered local agencies to meet or exceed those standards for drilling in their individual jurisdictions. Sacramento County passed an ordinance requiring notification, permitting, inspections and completion reports.

But Caltrans’ legal opinions provided the agency cover in ignoring the substance of the law.

Legal opinions

There are at least four legal opinions prepared by Caltrans in-house counsel dating back to 1998, three of which say the law needs to be followed to some degree. While all agreed that Caltrans was subject to the Water Code, the opinions gave the agency free rein to determine its own compliance.

The 1998 opinion came after Contra Costa County complained Caltrans was drilling without a permit. The opinion argued the kind of borings Caltrans was drilling were not the same type of wells regulated in the Water Code.

In May 2003, another opinion said that Caltrans didn’t have to follow any of the rules if the drilling was for a “state highway purpose.” That opinion, the only one entirely supportive of Caltrans’ position, was quickly overruled by another, which said Caltrans was subject to state and local laws but not required to pay related fees.

Then in 2011, another legal opinion said Caltrans was subject to state and local laws, like the C-57 license requirement, but didn’t need to get locally mandated permits because permits weren’t specifically mentioned in the state law.

Actual practices varied

“We do not necessarily need to abide by every specific local agency requirement,” an internal 2012 memo from Pokrywka, on behalf of the Geotechnical Services management team that included the Geotechnical Design regional chiefs and the Geotechnical Support chief, who at the time were: Abbas Abghari, Roy Bibbens, John Ehsan, Mark Willian and Pokrywka.

“It is possible to negotiate with the local agency on some of these requirements. Since we are not legally directly subject to all their provisions, we can choose not to implement requirements that are too extreme or superfluous,” Pokrywka said.

Pokrywka wrote that compliance with state and local laws “would add time and costs to projects,” and that the C-57 licensing requirement adds “potential cost, procedure and labor relations issues.”

Pokrywka recommended that staff only notify local jurisdictions of drilling activities when “it is in the best interest of Caltrans.”

Mendocino County

Caltrans often maintained it would comply with the substantive provisions of the groundwater protection program. However, it did not always properly seal its wells — arguably the most important component of the law.

Between 2004 and 2008, Caltrans back-filled more than 100 wells in Mendocino County with bentonite chips, state records show.

“That’s not typical practice for this county,” William Nalty, an environmental health technician at Mendocino County Environmental Health, told CalWatchdog.

That material is generally used for shallow borings, not the deep holes that Caltrans was drilling, primarily because it’s difficult to seal deep wells with it. Grout with a tremie is preferred.

Nalty added that with the drought, “more and more people are pumping out of the water table, so we want to make sure it’s clean and not contaminated.” Nalty also praised Caltrans’ efforts since 2014.

The agency’s practices in Mendocino County came to light as part of a 2015 case before a professional board questioning whether agency staff should have had a C-57 license to drill the wells, obtain permits and file completion reports. Caltrans prevailed because, as the board argued, the wells were “reportedly” sealed properly.

Marin County

The agency has also been criticized by officials in Marin County.

In February 2014, county inspector Scott Callow sent an email to Sacramento County’s Williams, saying the lack of permitting and the rogue drilling was not the most troubling part in his county’s interactions with Caltrans, but rather the apparent lack of training on the part of Caltrans engineers.

“The apparent lack of basic knowledge of the possible contamination threats to groundwater is most concerning,” Callow wrote, complaining of crews trying to fill deep holes without a tremie.

“How do you explain the blank looks when discussing a tremie,” Callow asked.

Drilling in contaminated sites

Instead of contacting the local agency first to find out if there were any contamination issues with the site, Caltrans would routinely do its own determination of the risks.

However, that plan didn’t always work. A San Joaquin County official in February 2014 complained of catching Caltrans drilling wells without prior notification (and noted that Caltrans was not calling the wells “wells”). The official complained that staff was not properly trained on drilling in contaminated areas.

“These wells were going to be left indefinitely to help drain the storm-water pond,” San Joaquin County’s Adrienne Ellsaesser wrote in an email to officials in other counties. “This would allow any hazardous spill/waste from the freeway to run into the pond and drain directly into and contaminate our groundwater.”

Sen. Mike McGuire of Healdsburg is author of SB643, “The Medical Marijuana Public Safety and Environmental Protection Act.” It won broad backing from the Assembly Business & Professions Committee last week after passing the state Senate on a 26-13 vote in June. Its next hurdle is the Assembly Health Committee; a hearing date has not yet been scheduled.

Both media in McGuire’s neck of the Golden State and the national media depict marijuana growing as a profound environmental threat. This is from the Lake County News:

… it is clear that large-scale rogue marijuana grows are having a negative impact on Northern California watersheds.

 

“The impacts are horrendous and the drought has had an exacerbating effect, especially on the North Coast. Entire rivers are running dry as marijuana grows expand and the fourth year of this historic drought sets in,” McGuire said.

 

Rogue operators have cut down tens of thousands of acres of Northern California forests illegally without regard for the environment, neighboring communities, downstream farms, or endangered species. 

 

In addition, tens of thousands of pounds of pesticides, rodenticides and fertilizers have been dumped into watersheds that flow through Northern California communities. 

 

Rogue marijuana grows are the number one source of sediment and nutrient load in Northern California rivers.

Marijuana growers are ‘sucking rivers dry’

Scientific American had a similar take in a July 3 story on its website headlined “California’s 50,000 pot farms are sucking rivers dry.”

The impacts of California’s drought on key fisheries have been of increasing concern for wildlife agencies across the state, which have worked for decades to restore fish populations to their historic levels. In 2014, warm water conditions contributed to a 95 percent mortality of winter run brood salmon in the Sacramento River system. This year, with cold water stocks in the Shasta Reservoir — located in Northern California about 9 miles northwest of Redding—at record low levels, Chuck Bonham, director of the California Department of Fish and Wildlife (CDFW), said the state faces another loss of brood stock this winter.

 

Across the state, there are an estimated 50,000 small pot farms. In the last decade, under the auspices of Proposition 215, which legalized marijuana for medical use, there has been a steady increase in the amount of cannabis cultivation in Shasta, Tehama and Humboldt counties, according to DeWayne Little, a lieutenant with CDFW’s Watershed Enforcement Team.

 

A study by CDFW and published in the journal PLOS ONE in March, found that in four watersheds that are home to both coho salmon and large numbers of marijuana farms — which use about 22 liters of water per day, per plant — the pot cultivation drained much of the river’s water … .

Farmers may get tough rules they want

This sort of media coverage and horror stories in farmers’ testimony to legislative committees are making it easy for McGuire to round up support — even in an era in which old attitudes about marijuana being a dangerous gateway drug seem to be fading.

Per the Lake County News, his bill would “provide a legal framework for those farmers who are working with McGuire on this legislation. The bill provides a regulatory framework for the industry covering the issues of environmental protection and water regulations, law enforcement, licensing, public health related to edibles and product testing, to marketing, labeling, taxing, transporting, zoning, local control and re-sale (and more).”

Here’s a link to the official Assembly analysis of the measure. The only formal opponent of the legislation is the Fresno Cannabis Association.

As I took the nearly six-hour drive recently from the Sacramento area, past Ukiah and up to Eureka, through the heart of California’s redwood-forested North Coast, I was reminded of the spectacular beauty of California. Driving through Mendocino and Humboldt counties also reminded me of the spectacular ways the state government wastes taxpayer dollars even at a time when officials are crying poormouth.

Deep in this remote country, enveloped by state and federal parks and public forests where so much of the land is off-limits from development, the state is spending tens of millions of dollars buying up land (for conservation easements) to protect it from development threats that are even more remote than the landscape.

The public is financing land deals that are causing consternation to timber companies that operate along the North Coast. Before you ask, “What would you expect from self-interested despoilers of the environment?,” consider that these are companies with a long history of environmental sensitivity. They operate in an environment hostile to their existence and must maintain public support for their efforts as well as protect the land for their future business.

The companies, such as Mendocino Redwood Co., have long been lauded by the local environmental community for their efforts to carefully harvest and upgrade wildlife habitat in the forests and streams. But they get to watch, up close and personal, how the state is operating in these forests and they are appalled by the waste of tax dollars and frustrated by the way that these questionable land deals are driving up the cost of forested land.

Bad Deals

In a 2007 letter to the state Wildlife Conservation Board, six forest managers from North Coast timber companies argue that various “transactions targeted lands zoned for timber production that have a long history of continuous production of forest products, while containing little in the way of pristine forest attributes.” They further argued that the deals “have been completed at prices that were too high for private operators to compete, even as there are models of successful private stewardship in the same area.”

These taxpayer-financed deals, completed with the help of nonprofit foundations paid fees based on the value of the deal, are about what one would expect when other people’s money and noble goals are involved. Timber officials tell me that the same goals can be accomplished at a fraction of the cost through restoration projects and without transferring more land out of the private sector. But who cares about that these days? (One North Coast newspaper even complained that the companies represent the “private ownership/free market model” of land use, which just shows us how far California has moved from the nation’s founding principles.)

State officials in Sacramento and voters in urbanized regions want to “save” the redwood forests, even if they don’t need to be saved. These are magnificent places. I’ve driven through the Avenue of the Giants, that 32-mile stretch of giant redwood trees, and frolicked in the deep, dark redwood forests. Few things are more beautiful, but few things are less endangered.

For perspective, there’s still another two-hour drive north from Eureka to the Oregon border — and towns in the area are little more than tiny pockets of development swallowed by the encroaching forests. As the Wikipedia entry (based on official Humboldt County data) explains: “[T]he vast majority of [the forests are] protected or strictly conserved within dozens of national, state, and local forests and parks, totaling approximately 680,000 acres (over 1,000 square miles).”

No Development

This is not the next Irvine, Pleasanton or Rocklin. No one proposed major developments even at the southernmost point closest to the Bay Area at the height of the market. The steep canyons and lack of public utilities, combined with onerous local development regulations and a culture that frowns on development (but smiles at marijuana production), assures that these forests will remain in their natural state. I don’t see why we want to turn vast portions of the state into wilderness areas that few can enjoy and that are so controlled that few humans can earn a living there. How about a little balance?

The purchase of these regional open-space districts and conservation easements is a story about the waste of tax dollars and about secretive government, given that the appraisals have been largely off-limits from public scrutiny — at least until after the deals are done. The timber folks complain that the appraisals don’t consider that most of the land is largely undevelopable and that the state uses appraisals from other state-funded conservation deals, which skews the true market value.

State officials released a review of the latest appraisals and insist that they are done to the highest standards. They also defend the deals and insist the public had plenty of opportunity to object. In response to industry concerns, officials developed criteria for the conservation program — to “promote the ecological integrity and economic stability of California’s diverse native forests for all their public benefits.” Those are nebulous goals, of course, and the public hearings are dominated by no-growth environmentalists.

New Purchases

The state officials and wildlife foundations are about to ram through two other easements now pending before the state Wildlife Conservation Board (the Usal and Gualala properties). They are soon expected to be approved by a telephone voice vote of directors. This does indeed raise open-government questions, given that these purchases ultimately are financed by taxpayers.

As the state runs out of money, even environmentalists ought to think about properly divvying up scarce resources.

At a time when the state can’t even maintain its current holdings of park lands, with an estimated maintenance backlog of about $1.3 billion, the state continues to expand its reach, grabbing control of land to protect it from imaginary threats.

If you wonder what’s wonderful and awful about California, there are few better places to start than the North Coast, where magnificent scenery contrasts with absurd public policy.

— Steven Greenhut