The State of California is planning to use eminent domain law to acquire hundreds of farms in the Delta for a controversial, multi-billion-dollar underground water tunnel project proposed by Gov. Jerry Brown.
According to documents obtained by environmental group Restore the Delta, state water exporters and the Delta Design Construction Enterprise (DCE) division of the Department of Water Resources are planning to acquire 300 pieces of land from Delta farms to ensure right of way for the Bay Delta Conservation Plan tunnel project.
The $15 billion project, under development for the last eight years, has long been favored by Brown, who wants to use the twin underground tunnels to move water from the northern part of the state to the south by diverting it around the Sacramento-San Joaquin River Delta.
But the project has faced stiff opposition from environmental groups like Restore the Delta and others who say the tunnels are not environmentally sustainable.
In a statement, Restore the Delta executive director Barbara Barrigan-Parilla blasted the “arrogance” of state officials for using eminent domain to acquire farmers’ land.
“While Delta and good-government activists are busy mobilizing comments in a democratic process, we discover state agencies view public oversight as simply a distraction,” Barrigan-Parilla said. “These documents arrogantly envision groundbreaking ceremonies as early as July 2016. Bulldozers and cement trucks are ready to roll! Red ribbons are budgeted! All for a $60 billion boondoggle without even one permit. Clearly, water officials under the Brown Administration view the Delta as a colony.”
Brown has tussled with environmental groups over the tunnels before. In May, the governor told critics of the proposal to “shut up, because you don’t know what they hell you’re talking about.” Brown said that “millions of hours” had gone into poring over every aspect of the tunnels, and has called the project an “imperative” that “must move forward.”
Yet despite the governor’s enthusiasm, the tunnel project has not yet been approved.
Water exporters and some agricultural interest groups support the tunnels. Californians for Water Security, a group made up of the California Chamber of Commerce and various farm and labor groups, has spent hundreds of thousands of dollars on television and radio advertisements in support of the project.
But California’s plan to use eminent domain to acquire the land has created an increasingly rare moment of unity between environmental groups and Delta farmers.
“It is wrong and premature that the Department of Water Resources has a unit creating a secret land acquisition plan to take 150-year-old farms, like ours, through condemnation,” Courtland farmer Richard Elliott said in a statement, noting that his family has never sold any of its land. “The entire plan doesn’t make for sustainable food policies, smart land use practices, or even common sense.”
According to the documents, the state would make Delta farmers one offer to purchase their land, after which the farmers would have 30 days to accept or reject a deal. But after those 30 days, the state could still plan to force the owners to sell using eminent domain law.
The plan also calls outright for minimal “external” oversight.
“All transactions are conducted, reviewed and approved internally by DCE staff and managers to maintain control and avoid unnecessary delays to schedule,” the documents state. “DCE shall seek to minimize external review and approval requirements.”
Tony Francois, an attorney at the Pacific Legal Foundation who specializes in water and property rights, tells Breitbart News that the use of eminent domain does not allow for a proper system of “checks and balances,” even for controversial state infrastructure projects.
“The fact that they don’t have the project approved has generally not been a bar to acquiring the property,” Francois said. “If the project is controversial, they don’t need any special approvals to acquire the property, and that starts making the project look more inevitable. [State contractors could say] ‘Hey, we’ve already spent the money acquiring the property, we better get started building it.”
Francois added that the use of eminent domain exempts the state from being subject to California Environmental Quality Act (CEQA) environmental impact reviews, which have caused stalling on some infrastructure projects for years, or even decades.
“If these reports are correct, then we have further confirmation that the tunnels project has been a foregone conclusion,” state Sen. Lois Wolk (D-Davis) told the Associated Press on Monday. Wolk said the environmental impact review, “which should be used to choose a project, is simply being used to justify a favored project.”
Francois says the state is on solid ground for claims of eminent domain to acquire the property, as long as it can prove the water tunnel project constitutes a “public good.” Less clear, he says, is the issue of “just compensation” for the land the farmers will be giving up.
“Are they only taking the property they need for the underground tunnels, or are they taking the surface estate as well?” Francois said. “It’s the cutting [the land] up that creates a significant problem that farmers think they are not getting properly compensated for.”
According to the AP, the tunnel project is officially in a public comment phase until October.