Tom Keeling, representing a number of Delta landowners, explained to the commission how the whole process of gathering data got to this point. 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 (TEP) because the investigations they requested are too invasive and take too long. DWR asked for much more access than they needed just to do geotechnical test borings, establishing an atmosphere of distrust that has dominated the process ever since.
The court said DWR has to get easements, and that involves eminent domain.
Last month, 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. Some landowners are waiting to negotiate with DWR until they learn the outcome of this review.
Dan Kelly of Somach Simmons & Dunn also raised CEQA issues and said that landowners are asking for more specific information on where drilling will occur.
Commissioner Ball thought that condemning property to get borings seemed excessive. He said condemnation should be reserved for actually having to build something. He accused DWR of playing hardball and suggested they find another way to get temporary entry permits.
But from DWR’s perspective this was all about reluctant landowners stonewalling the process. DWR insists it has been trying to negotiate, but some of that negotiation amounted to “Give us this temporary entry, or we’ll sue you.”
There are problems with the timing. DWR admits that they don’t plan to begin these investigations until May of 2012. That’s about the time the BDCP is scheduled to be completed, so they can hardly hope to incorporated the data they collect.
But in fact, DWR staff admitted during the afternoon session that the department has all the geotechnical data it needs for the draft EIR.
What they want to do now is investigations for preliminary engineering studies for a tunnel.
They have requested 6-month windows in both 2012 and 2013, just in case they can’t collect what they want in 2012. But even the EIR is scheduled for completion in 2012. Ball said that DWR’s desire for flexibility in access was creating problems. He also said they have scheduling issues.