Lands Commission Application Requirement Most Recent Ploy to Block Cadiz H2O Project
A move by the California State Lands Commission in asserting its regulatory rights in the Mojave Desert could entail Cadiz, Inc. having to carry out an exacting and comprehensive environmental impact report on that company’s controversial project to siphon water from beneath the eastern Mojave for importation to and use by communities near the coast.
Project opponents and environmentalists have long maintained that the ecological impact assessments that accompanied the project’s approval were flawed. The approval process and environmental certification of the project was carried out by the Santa Margarita Water District, which is more than 200 miles removed from the project’s desert well sites. Santa Margarita also had a direct interest in the water importation scheme.
The second and current version of the Cadiz desert water extraction plan was approved by the Santa Margarita Water District more than five years ago, but the project’s proponents have encountered a series of post-approval legal, regulatory and procedural challenges that delayed it. With the changeover from the Barack Obama to the Donald Trump administration earlier this year, the prospect increased that necessary federal acquiescence in use of governmental rights of way for the pipeline to carry the water would be forthcoming. At that point, however, project opponents reinvigorated challenges to the undertaking at the state level.
The California State Lands Commission’s demand that Cadiz submit a project application for its pipeline construction is the latest manifestation of that opposition. Beginning in the late 1980s, what was then known as the Cadiz Land Company, which had been created by Ted Dutton and Keith Brackpool, sunk a well in the Cadiz Valley and initiated an organic farming operation growing tomatoes, peppers, melons, grapes and citrus. Throughout its existence, the Cadiz farming operation failed to operate at a profit. But in the meantime, it was able to make an assertion, based upon the irrigation of the crops at the Cadiz farm, to water rights from the Cadiz/Fenner aquifer.
By the late 1990s, it was clear that the Cadiz Land Company’s true design was on securing water rights in a remote locale in the Mojave Desert to then sell that water for use elsewhere. The company seemed to hit pay dirt with its plan when in 1997 the Metropolitan Water District bought into a proposal from the Cadiz Land Company to convey up to 1.5 million acre-feet of what was referenced as “surplus” Colorado River water to Cadiz and “store” that water by pumping it into the water table there. In “dry years” the Cadiz Land Company proposed allowing the Metropolitan Water District to extract water from the aquifer and conduct it through a 35-mile pipeline that was to be constructed between Cadiz and the Metropolitan Water District’s existing Colorado River aqueduct. After five years of environmental studies, in August 2002 the federal government gave approval to the project.
In October 2002, however, the proposal was rejected by the Metropolitan Water District’s board of directors after conservationists raised concerns over possible environmental damage. An extensive round of litigation between the Cadiz Land Company and the Metropolitan Water District ensued. The concept lay dormant for six years but in 2008, the Cadiz Land Company, by then known as Cadiz, Inc., revived the plan in modified form, emphasizing less the drawing of water from the Colorado River and instead proposing to obtain water from sources feeding the desert area’s dry lakes that are subject to evaporation. The revamped project, to entail the sinking of 34 wells into the desert and construction of a 44- mile pipeline to meet up with the aqueduct carrying Colorado River water to the Los Angeles and Orange County metropolitan areas, was given a tentative budget of $536.25 million.
Cadiz, Inc. first arranged to find potential buyers of the water, lining up the Santa Margarita Water District in Orange County; the Three Valleys Water District, which provides water to the Pomona Valley, Walnut Valley, and Eastern San Gabriel Valley; the Golden State Water Company, which serves several communities in Southern California, including Claremont; Suburban Water Systems, which serves Covina, West Covina and La Mirada; and the Jurupa Community Services District, which serves Mira Loma in Riverside County.
Then, to obtain environmental certification of the project, Cadiz, Inc. turned not to the San Bernardino County Board of Supervisors, but to the Santa Margarita Water District, which was to be the largest recipient of the water. The Santa Margarita Water District is the second largest water district in Orange County, serving the affluent communities of Rancho Santa Margarita, Mission Viejo, Coto de Caza, Las Flores, Ladera Ranch and Talega. A contingent of San Bernardino County residents protested the Santa Margarita Water District’s assumption of lead agency status on the project, officially known as the Cadiz Valley Water Conservation and Recovery Project, based on the consideration that the district lies 217 miles from the Cadiz Valley across the county line from San Bernardino County.
San Bernardino County could have contested that arrangement in court, but Cadiz, Inc. effectively muted that by providing then-San Bernardino County Supervisor Brad Mitzelfelt, in whose First District the Cadiz and Fenner valleys and much of the East Mojave were located, with $48,100 in political donations as he attempted to vault from his position as county supervisor to Congress. In the June 2012 primary, Mitzelfelt proved unsuccessful in his effort to get into the 8th Congressional District race runoff in November 2012, placing a distant fifth among thirteen candidates, in no small part because his support of the Cadiz Project was so unpopular with his constituents that the hefty political contributions from Cadiz, Inc. proved to be of no avail to him.
In seeking to transition into Congress in 2012, Mitzelfelt had to forgo seeking reelection as supervisor that same year. Thus, he was consigned to leave office later that year. He was still in office as a lame duck when on July 31, 2012, the Santa Margarita Water District’s board of directors certified the environmental impact report for the Cadiz Water Project, clearing the way for Cadiz, Inc. to extract an average of 50,000 acrefeet of water per year – more than 16 billion gallons of groundwater annually – for the next century from the eastern Mojave Desert and send it via pipeline westward to Los Angeles, Orange and Riverside counties. Over the next five years, a succession of environmental challenges and lawsuits delayed the implementation of the project. Cadiz, Inc. has succeeded in overcoming those lawsuits, nearly all of which were heard in Orange County Superior Court. One remaining snag holding up the project was a 2015 U.S. Bureau of Land Management decision that Cadiz, Inc. could not use the existing federal railroad right-of-way for the water pipeline it intends to construct to convey water drawn from the aquifer to the Colorado River Aqueduct. This carried with it the requirement that the company go through a federal environmental review, under the National Environmental Policy Act, delaying the project and adding to its expense. At issue was the degree to which railroads are at liberty to allow their rights-of-way to be used for non-railroad purposes. A railroad right-of-way can accommodate a water pipeline if the water is to be used by the railroad, but the use of steam engines went out of vogue last century.
In 1989, an Interior Department solicitor concluded that an 1875 railroad law allowed railroads to authorize other uses without Department of the Interior approval. A subsequent solicitor’s opinion altered that conclusion to state other uses had to “derive from or further” a railroad purpose. The Bureau of Land Management office for California later found that “conveyance of water for public consumption is not a railroad purpose.” In March, the Donald Trump Administration, in the form of a blanket memo from a Bureau of Land Management acting assistant director, revoked two of the legal bases for the agency’s 2015 decision blocking the Cadiz project. This prompted Cadiz, Inc. to reapply with the federal government for permission to proceed, in turn galvanizing Senator Dianne Feinstein, D-California, who was the lead sponsor of the 1994 California Desert Protection Act signed into law by President Bill Clinton, the sponsor of the California Desert Protection Act of 2011, the sponsor of the California Desert Conservation and Recreation Act of 2015 and the sponsor of the California Desert Protection and Recreation Act of 2017, and a longtime opponent of Cadiz, Inc.’s designs on desert water. Feinstein consulted with Assemblywoman Laura Friedman, who in July altered the language of pending legislation, AB 1000, which originally pertained to water meter standards, to halt significant desert water pumping until state land and wildlife officials review the proposed groundwater extractions to first certify they will not harm the desert’s ecology.
Though the Cadiz Project was not mentioned specifically in the legislation, Friedman acknowledged the alteration of AB 1000 came in response to the Trump Administration’s prioritization of the Cadiz Water Project. “When the federal government refuses to undertake these environmental reviews, the state must step up and make sure they are done,” said Friedman. Friedman’s move triggered objections from Cadiz, Inc. and its corporate officers, who characterized what she was engaged in as “flawed legislation” and an effort to derail the project. The bill did not make it past the California Senate Appropriations Committee, where it lay dormant at the end of the legislative session. In September, State Sen. Ricardo Lara, DBell Gardens and Kevin de León D-Los Angeles, the state Senate’s president pro tempore, effectively blocked the bill’s release. Lara, asserting the project had already been subject to the rigors of the California Environmental Quality Act, said, “That process should be allowed to play out.” De León in whose district the Cadiz corporate headquarters is located, has received $9,100 in political contributions from Cadiz, Inc., $4,100 for his California Senate campaign in 2014 and $5,000 in June of this year for his planned run for lieutenant governor next year.
Thereafter, the environmental wing of the Democratic Party in California began casting about for another stratagem to block the Cadiz Water Project. Last month the State Lands Commission, which is chaired by Lieutenant Governor Gavin Newsom, proclaimed ownership of and passage rights over a 200-foot swath of property a mile long upon which a portion of the Cadiz pipeline is to be laid. Newsom, like current governor Edmund J. “Jerry” Brown and Feinstein, was a supporter of Friedman’s AB 1000. Newsom is vying against De León for the Democratic nomination for governor next year. The Lands Commission is requiring that Cadiz complete an application for use of the property. That application will undergo an analysis of relevant issues by the Lands Commission staff, and a determination of what criteria will need to be met to allow the pipeline to pass over the property. The discussion on the state’s end of the equation has extended, the Sentinel has learned, to what environmental certification will be required for the pipeline passover, which some want to be expanded to include a full-blown review of the adequacy of the earlier environmental analyses that were done for the project as a whole.
Environmentalists and project opponents have contended that the environmental impact report on the project which was ratified by the Santa Margarita Water District in 2012 was flawed and inadequate on a number of grounds, including what they say was a gross miscalculation of the natural annual recharge of the aquifers in the East Mojave, which in actuality falls significantly below the amount of water to be extracted by Cadiz, Inc. They contend the Santa Margarita Water District board members, who do not represent the residents of San Bernardino County or the East Mojave in particular, were insensitive to the full implication of the inadequacies in the environmental report and therefore did not fairly and adequately size up the impacts of the project, being blinded by their own interest in seeing the project approved. For that reason, they are pressing for a comprehensive reevaluation of the environmental impact report and the approval of the project that was based on it, such that Cadiz, Inc. is required to, essentially, redo the environmental impact report so the environmental certification is made under the watchful eye of a panel that does not have a stake in the financial outcome of the decision. Efforts to obtain input from Scott Slater, the current head of Cadiz, Inc. were unsuccessful. – Mark Gutglueck