Since February 2009, the Department of Water Resources has been trying to gain access to selected parcels of Delta land to gather geologic and ecologic data. This is data that could, arguably, be required for an EIR/EIS for the Natural Community Conservation Plan/Habitat Conservation Plan envisioned by the parties to the Bay Delta Conservation Plan.
With a HCCP/NCP in place, these groups will be on track to construct a peripheral canal or underground tunnel to convey water around or under the Delta.
Landowners in the Delta are not happy about this data-gathering activity, which requires Temporary Entry Permits (TEPs). The majority of Delta landowners have been opposed to the request from the beginning. A few granted the state access upon its request, and others held out until the threat of legal action was apparent.
Coordinated Proceedings for the Matter have been taking place in the San Joaquin County Courthouse before Judge John P. Farrell. The list of respondents now totals well over 150 affected local landowners.
DWR’s original proposed conditions for entry were broad, intrusive, and apparently unnecessary. Agency staff would have entered property several thousand times for up to two years to investigate the contents of buildings, and bore holes, and to dig large soil sampling pits. Essential parties such as reclamation districts were not notified. Many of the outlined actions lacked limitation or justification.
Recall that in 2009, there was no “tunnel” alternative, and as the investigation and arguments began to take shape in the court, DWR’s justifications for the right to entry began to take on a “We’re making this up as we go along” feel.
In the Final Rulings for December 16-17 2010 Hearings, Judge Farrell stopped just short of calling the State’s request unconstitutional. Farrell did state, “There is something a little bit disturbing about the government making forced entry onto private land and then performing ‘continuous observation of recreationists for up to a 4-hour duration’ and later questioning the recreationists. Fourth Amendment and privacy considerations arise especially since the recreationists may well be the property owners or their invited or paying guests.” In other words, as DWR officials gained access to property, what they deemed “observable” was beginning to be interpreted while on the job.
The hearings have produced quotable and notable comments from both sides. One comment from the Bench gets to the crux of the situation: “We have to assume some common sense on the part of the state.”
Judge Farrell has issued several rulings after each round of hearings. Temporary Entry Permitting Matters such as this are typically a “rubber stamp” sort of issue. However, the nature and number of proposed activities have been pruned down substantially, even though it was apparent from the beginning that some sort of entry onto some private land was inevitable.
A great deal of credit should be given to the hard working folks from the South and Central Delta who have done a fine job of protecting the rights of local landowners over the last two years. There are more hearings scheduled for later this month and on into February.