Pools of doubt
BEC’s lawsuit is the first of several legal challenges to the $130 million Highway 149 upgrade
In a 30-acre field just north and west of the intersection of highways 149 and 70, five bulldozers are busily moving back and forth, each in its own spot, scraping small depressions into the ground. By the time the rains come this fall, they will have created some 600 of these depressions, and if all goes as hoped, each depression will become a seasonal vernal pool.
“Our deadline is Nov. 1,” said Tran Tang, the designer and supervisor of this project, which is being done by the Sacramento habitat-restoration firm Resources Recovery. It’s a key environmental-impact-mitigation component of the $130 million upgrade of Highway 149 under way just to the south. He was confident he’d finish the project on time.
Not if Barbara Vlamis and the group she leads, the Chico-based Butte Environmental Council, can help it. Two weeks ago, BEC filed a lawsuit against the Butte County Association of Governments, the agency coordinating the Highway 149 upgrade, charging that the approval and permitting process for the project was legally flawed. BEC is attempting to obtain a restraining order to stop work on the pools, though not the highway itself.
“Not at this time, anyway,” Vlamis quickly added. In fact, BEC is preparing another suit that will challenge the whole federal environmental process by which the Highway 149 project was approved.
She acknowledges that the actions won’t make her organization popular with supporters of the road upgrade, who have been quick in letters to the editor to call attention to the disproportionate number of fatal accidents that have occurred on the roadway, especially at the intersection of highways 149 and 70. To them, anyone who impedes the new highway simply doesn’t care about saving lives.
The charge would make Vlamis laugh if it didn’t make her angry. “Yeah, we only care about critters, not people,” she said sarcastically during a recent interview in BEC’s tidy but small and jam-packed upstairs offices in downtown Chico.
“First of all, we believe everyone should follow the law, including government,” she said. “Just as with private developers, when the government doesn’t follow the law, we expect to hold their feet to the fire.”
At the same time, she added, “I am deeply appalled that this argument is being used, when the responsible entities [for the dangerous conditions] are the state and local governments that for more than a decade have chosen quite consciously not to implement safety measures that could have saved lives.”
BEC long has argued that installing traffic lights at the 149/70 intersection and reducing the speed limit along the route would have made the roadway safer.
“It was worth a shot to put lights in 10 years ago,” Vlamis insisted. “It would have cost less than a half-million dollars, instead of the $130 million they’re spending on this.”
Caltrans’ project manager on the site, John Hoole, said the department once did have a backup plan to put lights at the intersection. When funding for “the big job” came through, however, that plan became moot.
Several years ago some improvements were made to the intersection, he said. “I don’t have the history with the project to be able to say why they didn’t put in signal lights. Maybe they thought the improvements would make it safe.” In any event, he said, the interchange now being constructed is safer than any alternative.
BEC’s current lawsuit charges that the environmental assessment of the vernal-pool mitigation project failed in several ways. For one, it didn’t provide a “stable and accurate project description"—the project has changed its size and shape since the review was done. In addition, it failed to consider the impact on the endangered giant garter snake and the designation of vernal-pool critical habitat. It also failed to adequately assess growth-inducing impacts from the project, to respond to comments received and to consider cumulative impacts.
In addition, the lawsuit states that the environmental review failed to consider the U.S. Fish and Wildlife Service’s new recovery plan for vernal-pool ecosystems in California and Southern Oregon—a plan developed in response to another BEC lawsuit. Only an estimated 10 percent of historic vernal pools remain, and the plan called for protecting all of them.
The Highway 149 project has bulldozed 30 acres of natural vernal pools.
Besides, Vlamis said, altering an existing system and changing its hydrology to build artificial vernal pools isn’t a mitigation, it’s just another negative impact of the highway project.
If BEC wins its suit, BCAG will have to write a complete environmental-impact statement “and robustly analyze the true impacts of the projects,” Vlamis said.
Those impacts, however, are a done deal. The earth-movers have completed their work, at least one artificial marsh has been created, and the vernal pools are well on their way. BEC’s case could be a real monkey wrench in the works. Asked if it would put some local judge on the hot spot, she replied, laughing, “Of course it will.”
Near the entrance to the vernal-pools project are two big dirt piles. They look perfectly ordinary, but they are key to the success of the project. They even have a scientific name: “inoculum.” They are the dirt and rocks scraped from the bottoms of the vernal pools destroyed during highway construction. The creatures that live in vernal pools, notably fairy shrimp, hibernate in the dirt during summer months.
When the bulldozers have finished creating the 600 depressions, Tang said, the inoculum will be spread in small areas at the center of the pools. The area around the inoculum will be seeded and planted, and when the rains come, the pool will spring to life—or so Tang hopes. “Our other projects have been very successful,” he insisted.
He said he designed the project in such a way that the new pools wouldn’t affect the existing swales and water hydrology. They’ll fill with rainwater and runoff flowing down a gentle gradient, he explained.
Andy Newsum, the BCAG manager for the upgrade project, worries about the impact if BEC is able to stop the vernal-pools project before the inoculum is spread. “It’s all timing,” he said, noting the inoculum was harvested when dry and must be spread before it gets wet.
If that’s done, “we believe it will be successful,” Newsum said. “These guys we’re working with [Resources Restoration] are very experienced.”
Of course, vernal pools are not overnight phenomena, and the long-term success of the project won’t be known for many years.
The vernal-pools project is just one of several mitigations for the highway project. Another is a new freshwater pond near the 149/70 intersection that was created last summer. In addition, another 110 acres of mitigation-bank vernal-pools land has been purchased and will be set aside in perpetuity. And an endowment has been established to maintain and monitor the vernal-pools site over time, Newsum said.