Two More Lawsuits Filed Against Desert Water Project

(September 7)  wo lawsuits challenging a groundwater extraction project in the East Mojave Desert were filed last week, one on August 31 in San Bernardino Superior Court and the other on August 30 in U.S. District Court in Riverside. Four environmental groups – the Center for Biological Diversity, the National Parks Conservation Association, the San Gorgonio chapter of the Sierra Club and the San Bernardino Valley Audubon Society – filed a suit in state court, naming both the county of  San Bernardino and the Santa Margarita Water District. Another group, the Colorado River branch of the Archaeological Heritage Association, filed suit in federal court against Secretary of the Interior Ken Salazar and San Bernardino County, further naming the Santa Margarita Water District, project proponent Cadiz, Inc. and a Cadiz, Inc. corporate offshoot, the FennerValley Mutual Water Company, as real parties in interest.
An issue explored in both lawsuits is San Bernardino County’s ceding of lead agency authority for the environmental certification of the Cadiz Valley Water Conservation, Recovery and Storage Project, which would pump 16 billion gallons of groundwater per year from ancient aquifers lying beneath the Cadiz Valley and the adjacent Fenner Valley.
Cadiz, Inc., which operates an organic grape, melon, tomato, citrus, and asparagus farm on 500 acres in the Cadiz Valley utilizing roughly 4,000 acre feet of water per year, intends to up its drafting of water to as much as 150,000 acre-feet per year and maintain an average draft of 50,000 acre feet a year for the next century and convey that water in an aqueduct to Riverside, Orange, and Los Angeles counties. In addition to serving as the lead agency on the project, the Santa Margarita Water District, which lies some 217 miles from the Cadiz Valley, has also entered into a water purchasing agreement with Cadiz, Inc. to utilize a major portion of the water to be removed from the desert.
The Center for Biological Diversity, the National Parks Conservation Association, the San Gorgonio chapter of the Sierra Club and the San Bernardino Valley Audubon Society assert the county should not have allowed the environmental review of the project to be carried out by the Mission Viejo-based Santa Margarita Water District. The suit challenges the county for allowing Santa Margarita to commandeer lead agency status and calls into question as well the water district’s approval of the environmental impact report.
The environmental groups maintain the county violated its own groundwater management ordinance by not setting an acceptable rate of decline for the aquifer or danger levels that would trigger alerts of harm prior to the environmental impact report’s approval.
The water district ratified the environmental impact report on July 31. The environmental groups raced to file a challenge of that approval in state court within the statutory one month period.
The Colorado River branch of the Archaeological Heritage Association, led by Ruth Musser-Lopez, cited the failure of Salazar and the Department of the Interior to invoke the protocols and requirements of the Federal Land Policy and Management Act, the National Historic Preservation Act, as well as the National Environmental Protection Act, which the association maintains should have been done because part of the project will involve a 42-mile right-of-way for the aqueduct on federal land. The county is named because in transferring the authority for environmental certification of the project to the Santa Margarita Water District, it failed, according to the plaintiff, to live up to its obligation to comply with federal law in reviewing the impact a permitted project might have on federal public resources and thereby trigger the necessary federal procedural review prior to the issuing of permits.
“Significant federal cultural resources, potentially eligible for the National Register of Historic Places are in the way of harm along the 42-mile railroad right-of-way corridor that would be used for the water conveyance pipeline, all without due process or public participation in determining whether water mining is even an activity that should be allowed on federal land in the Bureau of Land Management’s California Desert,” Musser-Lopez said.  “If the court finds that Section 106 of the National Historic Preservation Act is applicable, this is one of the keys to unlock the door for federal review of the entire project.  The Archaeological Heritage Association submitted the idea that an archaeological site often straddles political boundaries and that the impact on the half of the property within the railroad right-of-way is an impact upon the archaeological site as a whole.   The association argues that even if the court finds that the area within the right-of-way is exempt from federal review, the federal archaeological sites in the area of potential impact of the project on the right-of-way would not be exempt.  The federal agency, the Bureau of Land Management, may not cede its review to a state agency; it is the Bureau of Land Management’s responsibility to consult with the State Historic Preservation Office and the Advisory Council. They may not turn that responsibility over to a state agency or the project proponent’s contracted environmental firm.  It would have been a relatively simple, routine procedure for the federal government to simply submit the archaeological or cultural resource findings to the Advisory Board on Historic Preservation and allow them the opportunity to review as required by Section 106.  However, had the Department of the Interior and Bureau of Land Management, the county of San Bernardino, or the lead agency, the Santa Margarita Water District, admitted that such consultation is necessary, it would have also been an admission that a federal review is necessary.”
When the Santa Margarita Water District moved to claim lead agency status on the project, county officials contemplated appealing the assumption of that authority by the Orange County-based entity to the California Office of Planning and Research but elected against doing so, instead entering into a memorandum of understanding with Cadiz, Inc., the Santa Margarita Water District and the Fenner Valley Mutual Water District to review a groundwater monitoring, mitigation and managing plan for the project. The county is slated to review Santa Margarita’s approval of the environmental impact report on October 1.
The lawsuits filed on August 31 were the third and fourth legal actions challenging the project. Delaware Tetra Technologies Inc., which operates a brine mining operation at two dry lakes near Cadiz’s property, previously filed suit questioning the legitimacy of Santa Margarita acting as the lead agency. A group of Orange County residents calling themselves Citizens and Ratepayers Opposing Water Nonsense have sued the Santa Margarita Water District over its approval of the environmental impact report and the water purchase agreement it entered into with Cadiz, Inc.

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