A Catch 22 for DWR

The California Water Commission met in an all-day session on September 21, with the agenda dominated by preliminary hearings of evidence for resolutions of necessity for eminent domain.  (They’re thinking about thinking about acquiring property.)

The meeting started at 9 a.m., but it was 2:30 before the Commission got around to considering the 28 parcels.  Some landowners couldn’t wait.  There’s not much point in inviting landowners to make comments if you make it unreasonably inconvenient for them.

DWR staff spent a lot of time explaining the process again, perhaps for the benefit of any landowners who had come to testify.  (The Commissioners heard this all last month and had it in writing, too.)  DWR claims they have broad statutory authority (referencing legislation and the Water Code) to conduct investigations necessary for improvements to the State Water Project; others argue that conveyance associated with the BDCP is not an approved and financed project yet, so DWR can’t invoke general statutory authorization.

The Governor asked for investigation of four conveyance options, but a map of the proposed exploration area shows drilling sites along what is clearly a through- or under-Delta alignment.  They aren’t looking much on the west, and not on the east at all.

Melinda Terry of the North Delta Water Agency acknowledged that BDCP is facing a Catch 22 in trying to collect the data they need to evaluate different alignments and options so that they can get the project approved and financed.  But she said that doesn’t change the intent of Water Code Section 11580:

When the department cannot acquire any necessary property by agreement with the owner, the department may exercise the power of eminent domain to acquire the property in the name of the state if the project for which the property is being acquired has been authorized and funds are available therefor.

Conveyance clearly hasn’t been authorized, and there are compelling questions about how it could be paid for if it were authorized.

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