Testing Before Taking: California Court Confirms DWR May Enter Land Before Project Funding Is Secured

In Department of Water Resources Cases, the Third District Court of Appeal addressed whether the California Department of Water Resources (DWR) may obtain court-authorized entry onto private property to conduct environmental, cultural, and geotechnical investigations before a water project is fully authorized and funded. The dispute arose from DWR’s ongoing effort to evaluate property for the Delta Conveyance Project and related water conveyance planning in the Sacramento-San Joaquin Delta. The court affirmed the trial court’s entry order and rejected landowners’ argument that Water Code sections 250 and 11580 bar any such pre-condemnation activity until formal project approval and funding are in place.

Background: The Statutory Framework

California’s Eminent Domain Law distinguishes between a classic condemnation action and a pre-condemnation entry proceeding. In a classic condemnation case, the condemning agency files a complaint to acquire property for public use, adopts a resolution of necessity, and litigates the right to take and the amount of compensation. By contrast, Code of Civil Procedure section 1245.010 and related provisions allow an entity authorized to acquire property by eminent domain to enter land in advance to conduct studies, surveys, examinations, tests, borings, and similar activities reasonably related to possible acquisition or use of the property.

The entry statutes also contain procedural safeguards. If the proposed entry will interfere with possession or use, or cause damage, the public entity must obtain either the owner’s consent or a court order. The court must define the purpose, nature, and scope of the activities and require a deposit of probable compensation. If the entry causes actual damage or substantial interference, the owner may recover from the funds on deposit or obtain a judgment for any shortfall, with a right to jury trial on compensation unless waived.

Procedural History and the Landowners’ Argument

Beginning in 2008 and 2009, DWR filed more than 150 petitions seeking access to properties for environmental studies and geological testing to assess potential water conveyance routes. The petitions were later coordinated in San Joaquin County. Trial court rulings, Court of Appeal decisions, and the California Supreme Court’s opinion in Property Reserve I shaped the governing framework for these disputes. Following subsequent proceedings and additional entry orders between 2022 and 2023, DWR sought in 2024 to add new petitions concerning the Delta Conveyance Project. The trial court granted those petitions in December 2024, and the landowners appealed.

The Court of Appeal’s Decision

On appeal, the landowners did not principally challenge the scope of the testing or the constitutional adequacy of the entry procedure. Instead, they argued that DWR lacks authority to conduct any pre-condemnation testing unless the underlying project has already been authorized and funded under Water Code sections 250 and 11580. In their view, because the Delta Conveyance Project was not fully authorized and funded, DWR could not lawfully perform the requested investigations. They further argued that this limitation should apply with even greater force where the proposed activities rise to the level of a taking or damaging of property.

Why the Court Rejected the Project Approval Argument

Focusing on statutory text, the court explained that Code of Civil Procedure section 1245.010 requires only that the entity be “authorized to acquire property for a particular use by eminent domain.” It does not require proof that the specific project has already been approved or fully funded. DWR satisfied that threshold because Water Code sections 250 and 11575 give it general eminent domain authority for state water and dam purposes and for Central Valley Project-related purposes.

The court treated the project approval language in Water Code sections 250 and 11580 differently. In its view, those provisions regulate when DWR may commence a classic eminent domain proceeding to acquire property for a project. They do not eliminate DWR’s basic status as an agency authorized to acquire property by eminent domain. The entry statutes concern temporary investigatory access to determine whether property is suitable for acquisition. The Water Code provisions impose timing limits on actual acquisition proceedings. According to the court, conflating those concepts would collapse the statutory scheme.

The court also found the landowners’ interpretation impractical. If DWR had to fully authorize and fund a project before conducting the investigations necessary to determine whether a property should be acquired, the pre-condemnation entry process would serve no real purpose. The court described that result as inconsistent with the evident function of the entry statutes, which is to allow agencies to gather the information needed to decide whether condemnation should occur at all.

The Role of Property Reserve I

A central part of the opinion is its reliance on Property Reserve I. The California Supreme Court had already held that the pre-condemnation entry statutes provide a constitutionally valid procedure for substantial testing activities, even where those activities may amount to a taking or damage under the California Constitution, so long as the landowner can obtain just compensation and a jury trial on damages. That holding defeated the landowners’ fallback position that a classic condemnation action was required whenever the proposed entry exceeded minimal or superficial conduct.

The Third District treated Property Reserve I as effectively dispositive. It emphasized that pre-condemnation entry and classic condemnation are separate procedures serving different purposes. Because a classic condemnation action is not required for pre-condemnation testing, the project authorization and funding prerequisites tied to DWR’s exercise of eminent domain to acquire property do not apply at the investigatory stage. The only showing necessary is that DWR is a legally authorized entity to acquire property by eminent domain for the relevant public use.

Conclusions and Implications

The decision confirms that DWR may continue using California’s pre-condemnation entry statutes as a front-end investigative tool in major water infrastructure planning, including the Delta Conveyance Project, without first establishing that the project is fully authorized and funded. For public agencies, the ruling preserves a workable path to gather geotechnical, environmental, and cultural information before deciding whether to bring a classic condemnation action. For landowners, the case underscores that the principal protection at this stage lies not in blocking entry categorically, but in demanding strict judicial limits on the scope of activities and full compensation for any damage or substantial interference.

This article was originally published in the May 2026 edition of the California Water Law & Policy Reporter. It is posted here on our website with the permission of California Water Law & Policy Reporter, Argent Communications Group, Argent & Schuster, Inc., and the author, Darien Key. All rights remain with the original publisher.

Darien Key is a Land Use and Natural Resources Attorney based in Oakland. Darien’s practice focuses on Land Use entitlement (such as the Subdivision Map Act, Housing Accountability Act, and Builder’s Remedy), CEQA (California Environmental Quality Act), municipal law (such as the Brown Act, Public Records Act, Conflicts of Interest, etc.), water (SGMA compliance and groundwater adjudications), and related environmental laws both on the transactional side but also in litigation. He can be reached at dkey@fennemorelaw.com.