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Department of Water Resources Granted Authority to Conduct Testing for Tunnel Project on Private Land Without Having to Pay Rent

Client Alert

A recent California Supreme Court decision increased the authority of the California Department of Water Resources (“DWR”) to enter upon private land.  This Alert provides an update on recent developments that impact local agencies and their authority to use private land.

The New Ruling Permits Public Agencies to Conduct Testing on Private Land Without Having to Pay Rent Subject to Conditions Protecting the Interests of Land Owners

On July, 21 2016, the California Supreme Court ruled in Property Reserve, Inc. v. Superior Court that state water authorities are permitted to enter and conduct environmental and geological testing on private land, for a proposed project to divert Sacramento-San Joaquin Delta (the “Delta”) water to the south, without having to pay rent.  The ruling came after six years of litigation by Delta property owners who filed suit to challenge entry on their lands without compensation.

DWR had undertaken to investigate the feasibility of constructing Governor Brown’s twin tunnels in the Delta as a means of delivering fresh water from Northern California to Central and Southern California. As part of the preliminary steps, the DWR sought to conduct environmental and geological studies and testing on more than 150 privately-owned parcels of land that the state, in the future, might seek to acquire for the project through negotiation or eminent domain.

The statutory procedures established by Eminent Domain Law relating to precondemnation entry and testing require a public entity to obtain a court order specifically authorizing the activities that are to be conducted on the property and to deposit in court the judicially determined probable compensation for the authorized activities.  These procedures also permit the property owner to obtain damages in the same proceeding for any actual damage and substantial interference with the possession or use of the property caused by the public entity’s entry and testing activities.

The Court ruled these procedures satisfy the California takings clause when reformed to permit a property owner to obtain a jury determination of damages in the proceeding.  The Court went on to rule that the trial court may limit the exploration to protect the interests of the owners. 

A New Right to Land Owners & Decreased Costs for Public Agencies

The ruling provides a new right to land owners who are now entitled to seek compensation before a jury for damages and losses, including restricted use of the property, as a matter of right.  However, the ruling also permits public agencies to enter and use private land for testing without having to pay rent, provided the above procedures are followed.  This will greatly decrease the cost of water agency actions involving entry and testing on private land.

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For further information, please contact Christine Carson in Aleshire & Wynder, LLP’s Water Practice Group, or call (949) 223-1170, or visit our website at awattorneys.com. Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.