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.”

By WAYNE LUSVARDI

The recent capsizing of the Carnival Cruise Lines ship Costa Concordia off the coast of Italy is symbolic of both Italy’s and California’s inability to continue to fund welfare states.  A lack of “social capital,” not income or taxes, is tearing at the social superstructure of California from within.

The Costa Concordia departed from “Civitavecchia,” an ancient second-century port of the Roman Empire near Rome.  In Italian, “civita” means civilized or civic society.  “Vecchia” refers to old age, as in, “you’ll support me in my old age” (sara il bastone della mia vecchiaia).

The initial reports of the shipwreck indicate that the captain may have abandoned ship in violation of maritime laws.  If the media reports are correct, it was not the ship’s officers but the Filipino cooks, maids and rank and file crew who saved passengers during the chaos to abandon the ship.  Plausibly, they had enough social capital from a Catholic-Asian-influenced social culture to save 4,000 passengers.

The capsizing of the Costa Concordia is symbolic of what is slowly happening to the government cruise ship “Costa California.”

Cruise Ship ‘Costa California’ Coming Apart

The metaphorical cruise ship “Costa California” is listing to port. It can’t find a way to plug a structural $20 billion annual state budget deficit.  But contrary to Gov. Jerry Brown, who proposes to raise taxes, Costa California isn’t leaking taxes from its ballast tanks.  Rather, it is leaking social capital.  There aren’t enough young, intact families to take out mortgages to support the pensions of public or private retirees.  Thus, the economy is coming apart.  But it is really the social fabric that is fraying.  It doesn’t matter how much money you have if you are trying to escape going down with a sinking ship.

According to the Occupy Wall Street movement, California is divided along social class lines with the rich comprising 1 percent and the not-rich comprising the other 99 percent. But libertarian sociologist Charles Murray says the reason for California’s social class divide is not primarily due to an income gap but due to a gap in social capital.

By American social capital, Murray means those institutions that bring about industriousness, neighborliness and lack of class envy; and which promote marriage and family formations along with a culture of entrepreneurialism.

Murray’s soon-to-be-published book, “Coming Apart: The State of White America 1960 to 2010,” says it is the lack of marriage and religious institutions that is resulting in greater social division, fewer liberties and a declining economy.  A synopsis by Murray of the book can be found online in an article titled, “Belmont and Fishtown: On Diverging Classes in the United States.” The article is a comparison of two fictional neighborhoods in upscale Boston and working-class Philadelphia, respectively.  An audio of Murray stating the evidence for the thesis of his book can also be found here.

Although similar divisions exist among other races and groups, Murray concentrated on whites because other groups are more influenced by racial discrimination and recent immigration. By isolating whites in his study, Murray more easily can focus his analysis on class divisions.

The focus of Murray’s book is not the middle class.  Instead, he compares the top 20 percent and the bottom 30 percent on the social class ladder.  What he finds is a growing social class divide.   The Tea Party’s focus is on the preservation of the middle class. And the Occupy Movement’s focus is on the growing social divide.  Both are misdirected social movements when it comes to rescuing California.

Social Divisions

To Murray, the origins for the divide are social and not due to the “greed” of Wall Street.  In 1960, about 88 percent of the “upper class” and 83 percent of the “lower class” in the U.S. were married.  Today, 83 percent of the upper class still are married, but only 48 percent of the lower class.  The result is that there aren’t enough intact families to take out mortgages and start new businesses to support the pensions of the elderly.  Thus, the inter-generational financial structure of the economy is coming apart.  But it is really the social superstructure that has self-destructed with the “nudging” of government.

What Murray is concerned about nationally has also taken place in California. California saw a leveling off of intact nuclear families from 2000 to 2007. The number of two-parent families with children grew from 4,117,036 in 2000 to only 4,218,469 in 2007.  This reflects a minus half percent (-0.5%) decline relative to total population growth. Two parent families with children constituted 35.8 percent of all state households in 2000 and 34.7 percent in 2007. This reflects a 1.1 percentage-point decline. Meanwhile, state population grew 8.1 percent over the same seven-year period.

What apparently has grown in California are the number of single-parent families due to divorce and out-of-wedlock births, not childless households. Unmarried partner households (same-sex) only represented 0.9 percent of all households in 2007.

Virtue Gap

What is causing this is the lack of socially institutionalized “virtues” that foster family formations, the work ethic and social responsibility.   This can only be derived from religion that is separate from the state.  It can’t be manufactured by government funded non-profit clones, academia, some faddish therapy or churches captured by politicized extremes.

In California, “occupying” Wall Street will not fix the state.  Nor will increased public school expenditures per student.  Fully funding state and local government budgets so that pension obligations can be met is not the long-term answer, either.  Figuratively speaking, that would just take on more water to the Costa California cruise ship.

Repealing Proposition 13 would not close the social class divide.  It would just widen the divide, as the widow and small business person couldn’t withstand the tax shock.

Neither would restoring redevelopment or imposing Obamacare make a difference.  Such discussions are like trying to pick a chair in a game of musical chairs on a sinking ship.  But the band plays on.

Restoring the Sacramento Delta and curtailing urban sprawl would be of no consequence either.  Global warming may or may not become a problem in our lifetimes or ever.

But the cooling off of marriage has, within one generation, wreaked structural devastation on the economy and compelled California to look to rampant immigration to offer a partial solution.  But immigration hasn’t brought enough intact two-parent families with entrepreneurial values to plug the gap.

For that matter, reducing the size of government alone would also not produce the social capital needed to keep the family and the economy from eventually declining.  However, Murray nonetheless says that reducing the size of government is a necessary pre-condition for social and economic regeneration.

Civil Society, Not Social Authoritarianism

Murray is not considered a “social conservative” but a libertarian.  Social conservatism is associated with a form of authoritarianism that wants government to have a greater role in the supporting of morally correct choices.

This is the kind of subtle social authoritarianism that Obama has adopted with the “nudging” policies of technocratic guru Cass Sunstein.  Only these policies are secular, so they are considered politically correct. Sunstein is opposed to free markets and believes that elite policy experts know what is best for the public.  But “nudging” policies can’t replace the family, free religious institutions, neighborhoods and other voluntary associations.  Because they reflect government coercion, they add to social alienation.

That is not what Murray is driving at.  Murray is interested in purely voluntary associations cultivating social capital for the public good.

Murray attends a Quaker church, not one that’s Evangelical, fundamentalist or liberal Christian.

Murray says non-religious people are as moral as those who are religious.  But the irreligious don’t leave behind primary social institutions that continue their social values.  Free religious institutions are, if I may say so, California’s original “Think Long Committees.” 

Such free institutions cannot be cloned by the state or by wealthy philanthropic organizations created by social elites.  There is no DNA from which to copy truly voluntary religious associations into the secular world.

In the language of the new genetics, the family and religion are “epigenomes” that self-program DNA by diet or behavior.  The epigenetic code can be inherited by succeeding generations. For example, it was found that binge eating in years of abundant agricultural harvests in Sweden cut 32 years off the life spans of the next two generations of farmers due to a single year of gluttony. By analogy, California government has experienced two decades of budgetary gluttony and thus has several years of self-inherited problems to solve.

Social institutions are like epigenomes that reprogram DNA code in the human cell.  Their effects are long-lasting.

De Tocqueville Libertarianism

Murray might be called a “de Tocqueville” libertarian because he believes that primary social institutions, such as the family and religion, are the creators of social capital that generates political liberties.  Alexis de Tocqueville was a famous French writer who visited America in the early 19th Century.  His famous book, “Democracy in America,” found that the American brand of democracy and business enterprise, and the work ethic, came from participation in voluntary associations not controlled or subsidized by the state.

The ideal of most libertarians is the naked individual with “inalienable” rights facing huge bureaucracies.  This is the image portrayed in Ayn Rand novels. Consider the fictional architect Howard Roark battling the bureaucracy in the novel, “The Fountainhead.”  But Roark is an “unarmed prophet” with no social capital.

Libertarianism can lead to an alienated individual who is part of the “lonely crowd” and who “bowls alone.”  Murray’s libertarianism sees the need for primary social institutions to serve as a buffer from the huge Wall Street corporations on the one hand, and the Federal Reserve and predatory eminent domain for redevelopment by the elites on the other hand.  “Wall Street,” “Big Corporations,” and “Too Big to Fail Banks” reflect icons of social alienation to the political Left.  “Fannie and Freddie Mac,” “the Federal Reserve,” “Redevelopment” and “Eminent Domain” reflect alienation on the Right.

People who are religious tend to become Little League organizers.  They fight for installing traffic signals at dangerous intersections.  They want a better world for their children and the children of others.  They are politically involved in more than a self-interested way.  They create lasting social capital that can be transferred to bigger issues.

The Maligning of ‘Prop. 8 as Hate’

In California, Proposition 8 to ban gay marriage is seen by liberal cognitive elites as just another form of social authoritarianism.  Libertarians just want “government out of the family.”

But Jennifer Roback Morse of the Hoover Institution has made a libertarian case for the exclusiveness of the “traditional” nuclear family.  This does not necessarily mean that gays should be prohibited from “civil unions” or other legal protections.

How to Re-float the Cruise Ship ‘Costa California’

According to social scientist Charles Murray, California can refloat the cruise ship “Costa California” if it can right-size government to allow voluntary associations to fulfill their irreplaceable role without resorting to social authoritarianism.

This even extends into an alternative to Obamacare.  Health has a social basis, as even liberal policy makers know.  Using “civil society” to form self-care and mutual aid groups focusing on health care is a viable alternative or complement to either socialized, privatized or “single payer” health care.

Murray points out that his findings are contrary to the stereotype that the working class is more religious and thus has more social capital than the upper class.  To the contrary, it is the lower classes that are sinking as the welfare state has replaced free religious and social institutions.  Moreover, upper class elites do not socialize with the lower classes anymore and have limited the pathways for social mobility in a high-tech society.

Murray writes: “Encompassing these specific ways in which declines in the Founding virtues diminish civic culture are the class divisions that have emerged in the raising of the next generation. In Belmont, the intact two-parent family is still the norm—about 90 percent of all Belmont children are still living with both biological parents when the mother turns forty. In Fishtown, that figure has fallen below 30 percent. The socialization of children in Belmont and Fishtown has become radically different, and everything we have learned about the problems associated with single parenthood forces us to expect that the consequences for the transmission of industriousness, marriage, honesty, and religiosity to the next generation will be profound.”

Translated to California’s current situation: the CalPERS pension fund may depend as much or more on the revival of civil society than on endless higher taxes. And your civita vecchia  — your civilian retirement — may depend on it too.