County Faces Lawsuit Over MOU Approval For Desert Water Project

A salt mining company in the Cadiz Valley has lodged a lawsuit against the county of San Bernardino over the proposed Cadiz Water Project, maintaining a memorandum of understanding the county entered into with the project’s proponents bypasses crucial components of the environmental certification process.
Referred to by its proponents as the Cadiz Valley Conservation, Recovery and Storage Project, the undertaking is an $878 million proposal by Los Angeles-based Cadiz, Inc. to sink 34 wells into the desert and construct a 44-mile pipeline along a railroad right-of-way until it meets up with the aqueduct that carries Colorado River water to the Los Angeles and Orange County metropolitan areas. That system will be used to draw an average of 50,000 acre-feet of water annually from the Cadiz Aquifer for use by  the Santa Margarita Water District, the second largest water agency 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.
Cadiz has arranged for the Santa Margarita Water District, which lies 217 miles from the Cadiz Valley and will be the recipient of the lion’s share of the water to be obtained under the plan, to serve as the lead agency in the environmental certification of the project. Reportedly, county officials considered petitioning the California Office of Planning and Research to regain oversight of the project but rejected that option  and on May 1 entered into a memorandum of understanding with Cadiz, Inc., the Santa Margarita Water District and the Fenner  Valley Mutual Water Company,  a corporate entity created by and wholly owned by  Cadiz, Inc., which ceded to the Santa Margarita Water District lead agency status for the consideration of the project and its environmental review.
On May 25, the law firm of Rutan & Tucker filed on behalf of Tetra Technologies a petition for a writ of mandate and a complaint for injunctive relief against the county of San Bernardino and its board of supervisors that named Cadiz, Inc., the Santa Margarita Water District and the Fenner  Valley Mutual Water Company as real parties in interest.
The Cadiz Valley lies just south of the Marble Mountains and northeast of the Sheep Hole Mountains near the National Trails Highway. Cadiz is home to a former railroad stop along the Santa Fe line, 17 miles east of Amboy and 70 miles from Needles
Tetra’s mining operations in the Cadiz Valley consist of the use of surface collection pits into which underground brines percolate as well as the pumping of underground brines into evaporation ponds.
According to Rutan & Tucker, “By ceding lead agency status to the Santa Margarita Water District (SMWD), the county violated its Desert Groundwater Management Ordinance and turned the California Environmental Quality Act (CEQA) on its head. The ordinance provides that an applicant who wishes to construct a groundwater well in the desert area must either get a permit from the county, after complying with CEQA, or be “excluded” from the ordinance. Rather than comply with the California Environmental Quality Act and seek permits from the county to construct its wells, Cadiz and SMWD seek to exclude themselves from the ordinance. The ordinance expressly contemplates that an applicant seeking to exclude itself from the ordinance must follow a particular order: First, a  groundwater management, monitoring and mitigation plan must be adopted which adheres to the ordinance’s ‘groundwater safe yield’ limitations. Thereafter, the applicant must execute a memorandum of understanding or other binding agreement with the county which, among other things, ensures that the measures identified in the county approved groundwater management, monitoring and mitigation plan are fully implemented and enforced. By approving the memorandum of understanding  before the groundwater management, monitoring and mitigation plan was prepared and approved, the county flipped this prescribed order.”
The writ continues, “The Santa Margarita Water District and Cadiz, Inc. were complicit in this inversion of the sequence prescribed in the ordinance, which inversion allowed the county and SMWD to evade meaningful compliance with the California Environmental Quality Act. Specifically, the Santa Margarita Water District has proposed to construct up to 35 wells on Cadiz’s land and to pump a massive amount of groundwater from the underlying aquifer. Whereas Cadiz had been using only approximately 1,500 acre feet per year for its agricultural operations in recent years, the Cadiz Project proposes to pump 50 times that amount (75,000 acre feet per year) for over 33 years or 33.3 times that amount (50,000 acre feet per year) for 50 years.”
Furthermore, according to the writ, “Instead of applying to the county for a groundwater management, monitoring and mitigation plan to exclude itself from the ordinance, a scenario under which the county would have been the lead agency in processing an environmental impact report for the groundwater management, monitoring and mitigation plan, the Santa Margarita Water District usurped the role of lead agency and went forward with the preparation of its own environmental impact report without procuring either a permit or a groundwater management, monitoring and mitigation plan from the county. In preparing its environmental impact report, however, the Santa Margarita Water District engaged in sleight of hand. It attached a ‘Groundwater Management, Monitoring, and Mitigation Plan’ as an appendix to its draft environmental impact report, and made that document the linchpin of the entire environmental analysis, as if the groundwater management, monitoring and mitigation plan had already been approved by the county. Indeed, this ‘phantom groundwater management, monitoring and mitigation plan’ was even dated (November 29, 2011), suggesting it had been approved then, and was referred to throughout the draft environmental impact report as having already been developed, even though the document had never been approved by the county or subjected to environmental review of any kind. Specifically, the Santa Margarita Water District’s draft environmental impact report relied on the phantom 2011 Groundwater Management, Monitoring and Mitigation Plan for certain project design features and mitigation measures even though the 2011 Groundwater Management Monitoring and Mitigation Plan had never been adopted by the county. Thus, the draft environmental impact report’s conclusion that those project design features and mitigation measures would reduce the project’s hydrology impacts to ‘less than significant’ is specious, as an environmental impact report cannot base such a conclusion on an  unenforceable, unadopted document within the jurisdiction of another public agency. In short, the entire California Environmental Quality Act process was reduced to a sham exercise that significantly misled  the public.”
According to the writ, “By forcing the county into the role of a mere responsible agency, the Santa Margarita Water District also has circumscribed the discretionary power of the county, and by accepting that role, the county has shirked its responsibilities under the California Environmental Quality Act.”
According to Rutan & Tucker, “the Cadiz Project would result in overdraft, and thus exceed the ‘safe yield’ of affected aquifers … because the project  proposes to extract an average of 50,000 acre feet per year of groundwater for 50 years (and up to  75,000 acre feet per year for over 33 years), while the maximum assumed recharge is only 32,000 acre feet per year.”
And, according to the writ, the county in drafting the memorandum of understanding cut Cadiz, Inc. an unlawful break by altering the time standard for considering a state of overdraft  from gauging whether more water is extracted in a given year than is replenished by that year’s rainfall to considering the average of this difference over a period of ten years, such that a determination of whether such an overdraft exists cannot be made for a decade after the project is initiated.
“The identification, evaluation, and mitigation of potentially significant effects of the project have been unlawfully deferred to a future date, without specific performance standards that must be met and without assurance that any potential mitigation measures will be effective or enforceable,” the writ states. “Moreover, by approving the memorandum of understanding, which contractually binds the county to various obligations, including the preparation of the real groundwater management, monitoring and mitigation plan, the county took another step in the process of approving the Cadiz Project, giving impetus to the project without the benefit of environmental evaluation or meaningful public input.”
David Wert, the official spokesman for the county said, “The county doesn’t have any response to the writ of mandate at this point and will reserve any comment until it has the opportunity to make a response in court. I can tell you the county  disagrees with the contention made by the plaintiffs that the county violated the county’s ordinance and CEQA and will be prepared to argue those points.”
Cadiz, Inc. spokesperson Courtney Degener offered her company’s reaction to Tetra Technologies’ legal filing.
“Cadiz, Inc. is developing a sustainable project on its property that will safely capture groundwater that is lost to evaporation and provide a new municipal water supply in Southern California,” Degener said. “Project deliveries of approximately 50,000 acre-feet per year would consist of natural recharge and temporary surplus and not result in overdraft. For many years, Tetra Technologies, an oil and gas enterprise, has operated a salt mining operation at the nearby Cadiz and Bristol Dry Lakes at the low point of the surrounding watershed. This operation removes the surface crust of the dry lakes to expose and evaporate saline water below so that the residual salts can be mined and sold.  This process demonstrates that substantial quantities of hyper-saline groundwater exist beneath the dry lakes and underscores the goal of the project to prevent the degradation of fresh water.  Tetra’s operations would continue throughout the life of the project and, under the proposed management plan, mitigation measures will be enforced to ensure there are no adverse impacts to third parties, including Tetra.
“We believe,” Degener continued, “this lawsuit has no merit but cannot comment any further on the specifics of this pending litigation.”

Leave a Reply