The California Water Commission had scheduled two days last week to deal with resolutions of necessity for eminent domain so that the Department of Water Resources (DWR) can go forward with geotechnical investigations in the Delta. But the Water Commission dispensed with matters in one day, having debated the most important issues at their September and October meetings.
Restore the Delta is grateful to Stockton attorney Tom Keeling for the following report on the November 16 meeting of the Water Commission.
“At the hearing yesterday, the California Water Commission adopted resolutions of necessity for approximately 21 Delta properties. Each resolution authorizes DWR to proceed to prepare and file a complaint in eminent domain to acquire temporary and permanent easements which, in turn, will enable DWR to enter and conduct geotechnical activities (primarily drilling). The drillings are to provide DWR with additional data for use in the BDCP and, specifically, for use in planning the alignment and design of a proposed peripheral canal or tunnel (euphemistically referred to in DWR-speak as an “isolated facility”).
“The Commission adopts a resolution of necessity only when DWR and the Delta landowner do not reach an agreement on the matter. For the most part, the Commission’s adoption of resolutions of necessity yesterday occurred in the face of objections from landowners. Many objections were raised during the hearing, which was the third hearing addressing the proposed actions in eminent domain. Among them:
- DWR failed to identify the “project” for which the property is being taken;
- the actual project for which the property is being taken (the BDCP) is neither authorized nor funded;
- DWR has failed to identify the exact locations of the proposed borings, thus frustrating efforts by the landowners to evaluate and appraise the proposed takings;
- DWR did not provide statutory offers that complied with Govt. Code section 7267.2 (e.g., because they identified a project that DWR now says is not the actual project for the which property is being condemned);
- the specific property interests being condemned are not necessary for the project; and
- the location of the proposed takings is not planned so as to achieve the greatest public good and least private injury.
“Landowner objections also addressed such issues as DWR’s refusal to indemnify Delta landowners for the consequences of finding hazardous materials during the entry and drilling activities, as well as the serious potential for contamination of water tables.”
Says Mr. Keeling, “The next step, I assume, will be DWR’s filing and serving of complaints in eminent domain to acquire these easements. The complaints will have to name not only the landowners, but all tenants and other lessees, holders of easements, including Reclamation District easements, encumbrancers, and the like. Moreover, depending how the Court of Appeal rules on pending matters, DWR may find itself going back to the Commission to acquire additional easements for non-drilling investigative activities – an enormous waste of public and private resources. The Commission clearly rejected the argument that for this reason the current takings are premature, and that the Commission should wait until it knows how the Court of Appeal will rule.”