The seemingly interminable back-and-forth between the advocates and the opponents of a Los Angeles-based company’s effort to capitalize by diverting billions of gallons of water from aquifers beneath California’s East Mojave Desert to Orange and Los Angeles counties has now shifted in favor of the conservationists, pursuant to action by the California Legislature.
Since the late 1980s, what was then known as the Cadiz Land Company, has had designs on securing water rights out in a remote locale in the Mojave Desert to then sell that water for use elsewhere. After obtaining more than 3,000 acres of land near Cadiz, the company began growing organic vegetables and fruits, including beans, melons and tomatoes on a portion of that land. 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.
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 the water from sources feeding the desert area’s dry lakes that are subject to evaporation. The revived 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. 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 moved to block that challenge from occurring, 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 leapfrog from his position as county supervisor to Congress. In the 2012 primary, Mitzelfelt proved unsuccessful in his effort to capture outright or get into the 8th Congressional District race, placing a distant fifth among thirteen candidates. In reaching for the Congressional brass ring, Mitzelfelt had to forgo seeking reelection as supervisor, consigning him 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 Los Angeles-based Cadiz, Inc. to extract an average of 50,000 acre-feet 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.
In this way, the Cadiz Water Project, officially called by its proponents the Cadiz Valley Water Conservation, Recovery and Storage Project, became known as the Mitzelfelt’s lasting political legacy, the final product of his failed attempt to trade the trust of his constituents and his authority over the fate of their regional resources for cash he believed would be the key to higher political office.
Over the next five years, a succession of environmental challenges and lawsuits delayed the implementation of the project. Cadiz, Inc. has succeeded in overcoming all of those lawsuits or having them dismissed. The only snag holding up the project at this point is 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. In March, however, the Donald Trump Administration, in the form of a memo from a Bureau of Land Management acting assistant director, revoked two of the legal bases for the agency’s 2015 decision.
At issue is 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. Both solicitors’ memos held that an involved process was required to determine what constituted secondary uses and what furthered railroad purposes. The California Bureau of Land Management office later found that “conveyance of water for public consumption is not a railroad purpose.”
Based on the March memo, which did not specifically note the Cadiz project, Cadiz, Inc. is asking the federal government for permission to proceed. Environmental groups, however, are at the ready to file further court action based upon the underlying law.
A little less than two months ago, on May 24, Senator Dianne Feinstein, D-California, called on the Trump administration to continue a policy of preventing the use of a Mojave Desert railroad right-of-way for the Cadiz Water Project.
In a letter to U.S. Interior Secretary Ryan Zinke, Feinstein requested that his agency uphold the Bureau of Land Management’s 2015 determination that Cadiz cannot use the railroad right-of-way on federal property to convey water drawn from beneath the fragile Mojave Desert without further federal environmental reviews.
“If Cadiz is successful in building its project, a major aquifer that sustains life in California’s Mojave Desert will be destroyed,” Feinstein said publicly. “This would be a terrible legacy for this administration to allow the destruction of all that we’ve done to preserve this amazing desert for posterity.”
Feinstein simultaneously produced a letter from the U.S. Geological Survey which stated that an analysis done by the agency in 2000 found that the Cadiz, Bristol and Fenner basins naturally recharged water at rates of 2,000 to 10,000 acre-feet a year, far below the rate at which Cadiz, Inc. would be drawing water for its project.
Early in her tenure as a senator, Feinstein authored and successfully pushed for the passage of the California Desert Protection Act of 1994 that created the Mojave National Preserve, which introduced a number of protection regimens for 69 wilderness areas falling between the Mexican border and the town of Bishop.
At noon on July 10, the deadline elapsed for public input on President Donald Trump’s Executive Order 13792 issued on April 26, calling for a review of the status of national monuments larger than 100,000 acres that were created or expanded since 1996 under the authority of the Antiquities Act of 1906, which he said occurred “without adequate public outreach.” Trump’s order calls for U.S. Secretary of the Interior Ryan Zinke to determine whether any of the 27 national monuments were created without proper input from the public and local, state and tribal governments. It says designations made without such input may impede “energy independence” or “curtail economic growth.” The Mojave Trails and Sand to Snow are among the 27 monuments covered by Trump’s order. By reversing those expansions, the Trump Administration would remove a further potential roadblock to Cadiz, Inc. drawing water from the East Mojave.
Two weeks ago, Assemblywoman Laura Friedman, D-Glendale entered the fray, potentially bringing with her the weight of the entire California Legislature. Using her legislator’s pen, she moved to amend pending state legislation such that before water can be sucked out of the desert in the quantities envisaged by Cadiz, Inc., a host of reviews of the impact must first be carried out.
Friedman altered the language of pending legislation, AB 1000, which originally pertained to water meter standards, to halt significant water pumping until state land and wildlife officials review the proposed groundwater extractions to first certify they will not harm the desert’s ecology.
Friedman, a freshman legislator, acknowledged the alteration of AB 1000 came in response to 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 to amend the bill brought howls of 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.
“We are disappointed that the California Legislature’s Senate Committee on Natural Resources voted yesterday on a party line 7-2 vote to pass out of committee Assembly Bill (AB) 1000, a bill just introduced by Assemblymember Laura Friedman over the Independence Day holiday. Assemblymember Friedman utilized the ‘gut and amend’ process to quietly change a pre-existing bill and load it with new language that seeks to derail reliable water supplies in Southern California without consultation with those who may be impacted by such legislation,” said Scott Slater, Cadiz, Inc.’s chief executive officer and president.
“AB 1000 is a deeply flawed, unconstitutional bill that targets a single project, usurps local control and undercuts the revered California Environmental Quality Act to review environmental impacts,” said Slater. “Setting a terrible precedent, AB 1000 would overrule the judgment of local agencies even where California’s courts have already reviewed and approved their decisions. The bill faces substantial opposition and numerous steps remain ahead of AB 1000 before it could become law. We will work vigorously with the broad, growing coalition of opposition to block this bill from advancing and demonstrate that such an extraordinary action is both unlawful and unwise.”
According to Slater, “The Cadiz Water Project is a California project that has been thoroughly and publicly reviewed and approved by two separate California public agencies in accordance with the California Environmental Quality Act, widely known as the most stringent environmental law in the U.S. During this review process, project operations were found to have no adverse impacts on the environment, including state and federal lands referenced in AB 1000.”
If passed by the legislature and signed into law by the governor, AB 1000 would be called the California Desert Protection Act of 2017.
Under AB 1000, taking groundwater from beneath that part of the Mojave that is not already urbanized would be prohibited unless the State Lands Commission in conjunction with the state Department of Fish and Wildlife determines pumping “will not adversely affect the natural or cultural resources of those federal and state lands.”
If AB 1000 passes, Cadiz, Inc. could yet put the project into place, but would need to convince those without a stake in the project’s outcome that the water siphoning at the level of intensity envisaged by Cadiz, Inc. would do no harm. That was not the case with the board for the Santa Margarita Water District, which has committed to purchasing at least 20 percent of the water to be made available from the project. -Mark Gutglueck