In late November 2017, the Cadiz Valley Groundwater Conservation, Storage and Recovery Project (Cadiz Project) was the subject of a new lawsuit challenging the U.S. Bureau of Land Management’s (BLM) determination that no additional federal environmental review was required for the project’s construction of conveyance structures in a railroad right-of-way. The Center for Biological Diversity and Center for Food Safety filed legal action in the U.S. District Court for the Central District of California directly challenging BLM’s determination and asking the court for declaratory and injunctive relief. The lawsuit is one in a series of peaks and valleys for the embattled Cadiz Project, which has been subject to litigation and debate since 2012. [Center for Biological Diversity, et al. v. U.S. Bureau of Land Management, Case No. 2:17-cv-08587, filed Nov. 28, 2017 (C.D. Cal. 2017).]
The Cadiz Groundwater Project
The Cadiz Project, proposed as a public-private partnership between Cadiz, Inc. and local water districts, involves plans to pump native groundwater from the Fenner Valley Aquifer System in the Mojave Desert. Cadiz, Inc. is the owner of approximately 45,000 acres of land in eastern San Bernardino County, most of which overlies the Fenner Valley aquifer system. To carry out the project, Cadiz and Santa Margarita Water District (SMWD) would appropriate an average of 50,000 acre-feet of groundwater per year (afy) over a period of 50 years from that aquifer, and deliver that water for municipal and industrial uses in Southern California. To deliver the project’s water, Cadiz proposes the construction of a 43-mile pipeline, spanning across both private and federally owned lands.
In 2012, the project faced a series of challenges in California state courts, including lawsuits filed by the Center for Biological Diversity. Those challenges, ultimately rejected by the California appellate court in 2016, attacked the local agency approvals granted to the project under the California Environmental Quality Act (CEQA) and local groundwater ordinances. These state court challenges, however, did not address a lurking background issue: the propriety of the proposed construction of the project’s conveyances in a railroad right-of-way.
Arizona & California Railroad Company (AZRC) holds a right-of-way across federal lands managed by BLM, granted to by the U.S. federal government under 1875 Railroad Right of Way Act (1875 Act). In 2008, Cadiz leased a portion of that right-of-way from AZRC with the goal of co-locating water conveyance facilities along the same path. In 2011, the U.S. Department of the Interior’s Solicitor General determined that under the 1875 Act any activities in the right-of-way were required to “derive from or further a railroad purpose.” Four years later, in 2016, the project faced a new setback when BLM advised all parties that it did not consider the proposed water delivery pipeline to derive from or further a railroad purpose, and that the project therefore could not be constructed on publicly held federal land without federal review and approval.
A Change of Direction, and a New Challenge
In September 2017, the Department of the Interior reversed position on the scope of the 1875 Act’s limitations, concluding that “rights-of-way granted to railroad companies under the 1875 Act allow railroad companies to lease portions of their easements to third parties without permit or grant from the Bureau of Land Management,” provided that those leases “do not interfere with the continued use of the easement as a railroad.” One month later, BLM advised Cadiz via letter that it had concluded the proposed use within the AZRC easement was within the scope of the 1875 Act, and no BLM approval was required for the project to move forward.
In late November 2017, the Center for Biological Diversity and the Center for Food Safety challenged that determination arguing that this use was beyond the scope of the 1875 Act and that BLM had exceeded its authority in offering this determination. The challengers went on to argue that the Federal Land Policy and Management Act, which governs the management of federal lands, required BLM to perform a full environmental review of the proposed project. Cadiz responded in a press release, noting that it was not a party to the lawsuit (which is a direct challenge to BLM’s approval) asserting that the BLM had:
- . . .correctly applied applicable law, returned to long-established federal policy, and [the October 2017 change of position] was widely supported.
Conclusion and Implications
As of the date of this article, BLM had not yet responded to the lawsuit. Outside the courtroom, however, both challenges to and support of the Cadiz Project have been high-profile: President Trump identified the project in a January 2017 list of top priority Emergency and National Security Projects; while Senator Dianne Feinstein decried the project as a “disaster” for the local environment. BLM will have 90 days to respond to the complaint. In the meantime, project proponents continue to navigate the complicated web of approvals necessary to break ground and carry out the final project. The complaint in this action is accessible online at: https://earthjustice.org/sites/default/files/files/1%20Complaint%2011-28-17.pdf
(Rebecca Smith, Meredith Nikkel)
