Staff briefed the commissioners on the CWC’s role in eminent domain, reviewing both the land acquisition process and the Resolution of Necessity, a governing authority’s formal decision to acquire real property rights. The CWC is the “governing authority.”
DWR isn’t talking about acquiring land for a peripheral canal or tunnel YET. First they have to do some test borings. In a case argued by attorneys representing Delta landowners, a judge told DWR that they have to go through the eminent domain process to get temporary entry permits to do these boring.
The Water Code says that DWR may acquire property rights through eminent domain IF THE PROJECT HAS BEEN AUTHORIZED AND FUNDED. We’ll be coming back to this point when actual conveyance comes up for discussion.
In the case of the test borings, according to staff counsel, they’ve been authorized by DWR itself, which has “specific authorities relative to the State Water Project.” As for funding, it comes from the State Water Contractors, the Bureau of Reclamation, and . . . well, somewhere. Staff counsel was a bit vague on that point.
And by the way, where is an environmental impact report for these geotechnical activities?
Before approving a Resolution of Necessity, the Commission must consider
- Whether the public interest and necessity require the project;
- Whether the project and acquisition are planned or located in the manner that is most compatible with the greatest public good and least private injury;
- Whether the property to be acquired is necessary for the project; and
- Whether the written offer required by the Government Code has been made to the owner, or has not been made because the owner cannot be located.
Staff told the Commission that DWR will negotiate and work with landowners. One Delta landowner provided specific details about the failure of DWR to work with her in a reasonable way; they inconvenienced her and her clients, didn’t return phone calls, didn’t show up when they said they would. She said that DWR refused to negotiate at every point. The Supervising Land Agent said that this case “had not been brought to his attention.”
The immediate matter on which the CWC will be asked to provide a Resolution of Necessity is the test borings. But Delta folks making public comments may surely be forgiven for raising the issue of the peripheral canal, since that is clearly the direction the State is headed. One Delta landowner took the opportunity to give the commissioners a report on dredging. We already have a transfer system, he noted. DWR deems it broken because of silting, the result of a failure to dredge and maintain waterways in the Delta.
Commissioner’s, too, had questions about acquiring property for a tunnel. And there were lots of questions about the process.
Melinda Terry of the North Delta Water Agency addressed the Commission and followed her remarks with a letter. She asked the Commission to
formalize a clear process that makes it clear how and when landowners can provide information, evidence, and comments regarding eminent domain actions on their property that the Commission will follow prior to making a decision on any Resolutions of Necessity. For instance, it seems appropriate for a procedure in such a process to include having DWR make a presentation on the specific measures, including each contact and consequent negotiations that occurred with landowners for each property brought to the Commission for the approval of a Resolution of Necessity, rather than a “trust us, we made every effort to work with the landowner, and we were professional.”
In this matter of eminent domain, as in the matter of approving regulations, it will take considerable vigilance to ensure that the California Water Commission isn’t just providing a rubber stamp for actions taken by the Department of Water Resources at the behest of the State Water Contractors.
Executive Officer Sue Sims suggested that the commissioners might want to get out and see where the borings are proposed and what they look like. Chair Saracino said that having begun his career as a geologist, he had seen plenty of test borings and didn’t need to see any more.
The South Delta’s Rogene Reynolds noted later that some of these people clearly have no sense of what it means to have your land be part of who you are.