Appeals court backs landowners on access for delta tunnel tests

A California appeals court has sided with landowners fighting the state over test drilling for a proposed water tunnel system in the Sacramento-San Joaquin Delta.

In a 2-1 decision, an appeals panel ruled Thursday that the state needed to go through the eminent domain process to gain access to private property on which it wanted to take soil samples and conduct environmental surveys.

The testing is necessary for the design and construction of two 30-mile tunnels that the state proposes to build as part of a delta replumbing project. To obtain soil samples, workers drill 200-feet-deep holes, a few inches in diameter, which are later filled with cement.

Delta farmers are fiercely opposed to the $25-billion project, which also calls for construction of new diversion intakes on the Sacramento River in the north delta and extensive habitat restoration.

Though some delta landowners allowed state workers onto their property for testing, others refused, throwing the matter into court.

In 2011, a San Joaquin County Superior Court ruled that the geological drilling amounted to a taking under the California Constitution and could only be authorized in a condemnation proceeding.  The court said the state could move ahead with the environmental studies without condemnation, subject to deposits to cover any property damage incurred during the surveys.

Both sides appealed, leading to this week’s ruling that the geological testing and the environmental surveys both amounted to a taking.

That means the state Department of Water Resources will have to go through condemnation proceedings to gain access to the land it still needs to survey.

Although the process will slow testing, water resources spokeswoman Nancy Vogel said the department has built that delay into the project schedule.

The proposal is undergoing a lengthy environmental review, has not yet obtained necessary approvals and is several years away from construction.


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