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Threads in a tangled web

Eminent domain matters dominated this month’s California Water Commission (CWC) meeting on August 17.  The Department of Water Resources (DWR) was asking the Commission to approve a process for taking public comment when considering a “resolution of necessity” intended to lead to eminent domain proceedings.  But the discussion covered much wider ground than just the public comment process.

Some background: A judge has told DWR that they can’t go onto people’s property to do geotechnical investigations (mostly test borings) with just a temporary entry permit because the investigations are too invasive and take too long.  DWR has to get easements, and that involves eminent domain.

NOTE: As we go to print on this report, we have learned that on August 18, the Court of Appeal for the Third Appellate District issued a Stay of Entry Order, which will force a halt to the State’s entries and activities not just for drilling, but also for “environmental” investigations, pending appellate review of the merits.  This is good news for Delta landowners.

Of course this all annoys the you-know-what out of DWR, which is already at the Court of Appeal challenging the trial court’s April 8 order telling it that it can’t drill with just a temporary entry permit, but instead needs to do a real condemnation action.  Requiring easements for test borings means that DWR has to get a resolution of necessity from the CWC for each individual property.  And the CWC isn’t supposed to consider a resolution of necessity for any project that isn’t authorized and funded.

We all know that the only reason for doing these investigations in the Delta is to design a tunnel to move water under the Delta as part of the Bay Delta Conservation Plan (BDCP).  And we all know that the BDCP has been neither authorized nor funded.

That should be the end of it, for now.  But DWR is arguing that they need the information from the test borings to come up with a BDCP that can be authorized and funded.  So they have to present the geotechnical investigations as being themselves an authorized and funded project.

The California Environmental Quality Act (CEQA), makes it hard for DWR to make that case. Under CEQA, a project cannot be “segmented” but must be considered as a whole for purposes of an environmental impact report (EIR).

What DWR and the State Water Contractors should have done, according to Stockton attorney George Hartmann and others, was to do a programmatic EIR, which would have allowed them to address potential impacts in a general way.

In public comments, Hartmann, who has been litigating temporary entry permits on behalf of Delta reclamation districts, told the Commission that DWR is trying to use the CWC’s authority to do an end-run around what is going on in the courts.   And Melinda Terry of the North Delta Water Agency pointed out that the temporary entry permits identify BDCP, not geotechnical drilling, as the “project.”  She suggested that DWR seems to be circumventing the regular process required under CEQA and advised the CWC to get outside legal counsel (outside of DWR, that is) to advise them on what is allowed.

With DWR staff and counsel sitting on the dais with the commissioners, and with DWR staff preparing all the informational material and doing most of the briefings, it is hard to see how the CWC can do anything independently of DWR.

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