Background

The BDCP is a multispecies habitat conservation plan currently under development that, if implemented, will allow certain federal, state, and local agencies to conduct activities in the Delta, including operation of the State Water Project and the Central Valley Project, that might otherwise conflict with current laws pertaining to endangered and threatened species. DWR is one of the principle state agencies developing the BDCP. As part of its proposed suite of actions intended to improve ecological conditions in the Delta and shore up the reliability of Delta water supplies available to southern and central California, the BDCP calls for the construction of an “isolated conveyance” facility, or peripheral canal. DWR is currently studying and developing plans for the canal. Accordingly, it has identified thousands of acres of property in the Delta which are strategically located in the proposed canal planning areas, and therefore seeks entry to those properties to conduct its studies.

Discussion

DWR’s Petitions, filed in Contra Costa, Sacramento, San Joaquin, Solano, and Yolo counties, allege that entry is necessary to conduct studies that will determine the “best alternatives for future conveyances to ensure reliable water supplies for fisheries, habitat and other water users.” DWR seeks access to conduct these studies over the course of the next two and one-half years, or until December 31, 2011. The Petitions allege that DWR’s activities on the properties in question will include “photographs, studies, surveys, examinations, tests, soundings, boring, samplings, appraisals, archeological, environmental, botanical, biological, geological, and engineering examinations, or to engage in similar activities reasonably related to acquisition or use of that property to determine the suitability of the property for a potential public use.” These activities, according to papers DWR filed with the courts, include the use of backhoes for digging geologic test pits twelve feet deep and twenty feet long; the use of truck mounted augers to bore groundwater-monitoring wells up to 200 feet deep; the installation and regular monitoring of animal traps, and various other activities. Each of these activities would require vehicular access by several vehicles, some at regular intervals, both day and night, throughout the year. DWR’s Petitions also ask the court to set the amount of compensation for such activities at $500 per parcel, for the two and one-half years of access.

Many of the affected property owners are opposing DWR’s Petitions given the potentially substantial intrusiveness and long-term nature of the activities. Property owners assert that such activities can significantly interfere with and create serious hazards for agricultural activities. Many of the agricultural operations on these properties are carefully planned and can, at times, be significant. Whether DWR’s activities disrupt irrigation schedules, prohibit or delay the application of herbicides, pesticides, and fertilizers, interrupt harvest activities, of simply destroy valuable crops, the landowners have expressed serious concerns with allowing DWR the access contemplated in the Petitions. Landowners have also expressed concern that DWR’s trenching, boring, and animal trapping activities could pose a threat to agricultural equipment. Large test pits, bore holes, and animal traps that could be located throughout the property pose physical obstacles to normal farming activities.

For these reasons and others, some landowners have filed formal oppositions to DWR’s Petitions. In papers filed with the courts, property owners allege, among other things, that DWR’s activities are so intrusive as to themselves constitute a taking, that DWR does not have the statutory authority to condemn the properties for the purpose of completing these studies, and that DWR has failed to comply with the California Environmental Quality Act. Each of the five county Superior Courts will separately hear DWR’s Petitions from mid-May through the end of June, 2009.

Conclusions and Implications

These court actions represent some of the first legal challenges to the latest attempt to construct an isolated conveyance facility around the Delta. If the courts side with the property owners, it would likely be a significant setback to DWR and the BDCP process. Should the courts find that DWR’s activities constitute a taking, even temporary, DWR, to the extent it could exercise the power of eminent domain for the purpose stated in the Petitions, would need to comply with more time-intensive requirements associated with condemning property. This could potentially slow BDCP’s aggressive planning schedule. DWR will likely seek access to numerous additional properties throughout the Delta as the planning process continues.

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