By Ian James, Palm Springs Desert Sun
President Donald Trump’s administration has approved a company’s plan to build a water pipeline to carry billions of gallons from the Mojave Desert to California cities.
The federal Bureau of Land Management told Cadiz Inc. in a letter released Monday that the company won’t need a permit to build the pipeline alongside a railroad. The agency rescinded a 2015 decision by President Barack Obama’s administration that had blocked the project.
The Los Angeles-based company said with no federal permit needed, it now plans to move ahead with designing and building the 43-mile pipeline from its property to the Colorado River Aqueduct.
Scott Slater, Cadiz’s president and CEO, praised the decision and said the company is “tremendously satisfied to finally have this matter resolved.”
“We are grateful for the determined bi-partisan Congressional effort that sought a deeper, fair and unbiased review of the project’s proposed use of the right-of-way,” Slater said in a statement.
The agency’s ruling came after an appeal by 18 members of Congress who had called for the government to overturn the Obama administration’s decision, and after a related policy change by the Interior Department that critics said would allow Cadiz to sidestep federal oversight.
Sen. Dianne Feinstein said the fight against the project isn’t finished — and California has the power to block it.
“It’s no surprise the Trump administration is willing to look the other way while Cadiz drains a vital desert aquifer. California must now step up to protect the Mojave desert from Cadiz and its friends in the administration,” the Democratic senator said in a statement.
“The Trump administration might be willing to let Cadiz profit by harming our public lands but California shouldn’t give up,” Feinstein said. “Our state can still require a stronger review of Cadiz’s plans. The fight to protect our desert isn’t over.”
In an Oct. 13 letter to the company, acting Bureau of Land Management Director Michael Nedd said the agency “concludes that authorizing the proposed activity falls within the scope of rights granted to the Arizona and California Railroad” under an 1875 law, and therefore doesn’t require an additional federal permit.
Cadiz’s proposal to pump groundwater in the desert and sell it to cities has been hotly debated for years, and the company’s plan could still face major obstacles because some of the land where it wants to build the pipeline is owned by the state.
California’s State Lands Commission told the company in a Sept. 20 letter that any use of the state-owned lands under its jurisdiction would require a lease and the agency’s approval.
Slater said the company’s representatives haven’t yet had a conversation with the commission, “but we will when the time is right.”
“I expect we will sit down with them to understand their claim and concern,” Slater said in an email last week.
The state commission’s letter refers to a strip of land about 1 mile long and 200 feet wide, which Slater said makes up “about 2.3 percent of the length of the preferred route” of the pipeline running alongside the railroad.
In the letter, Brian Bugsch, chief of the state commission’s Land Management Division, pointed out that when a previous iteration of the project was undergoing an environmental review in 2000, the agency sent a letter saying the state owned some lands in the area and any use of those lands would require a lease. The Metropolitan Water District of Southern California later said in a response to those comments that the property was privately owned, although the state held underground mining rights.
Bugsch said the commission reanalyzed the lands it owns due to “recent renewed activity” on the project and determined the pipeline route would cross state property.
“This letter is a reminder that any use of state-owned lands under the Commission’s jurisdiction will require a lease from the Commission,” Bugsch said. Because the commission “will be making a discretionary decision when considering a lease,” he said, an environmental review may be required.
“Please submit an application as soon as possible to allow sufficient time to process it, conduct any required environmental review, and negotiate a draft lease for the Commission’s consideration,” Bugsch wrote in the letter.
Selling desert groundwater
Cadiz has proposed to pump as much as 16.3 billion gallons of groundwater per year on land surrounded by Mojave Trails National Monument and sell the water to cities in Southern California.
The company owns 34,000 acres in the desert along Route 66 in the Cadiz Valley and surrounding areas. While pursuing its plan to sell water, Cadiz has been running its wells to irrigate nearly 2,000 acres of farmland, growing lemons, grapes, raisins and other crops.
The company says its pumping wouldn’t harm the environment.
Conservation groups say if Cadiz is allowed to draw down the aquifer, it would threaten natural springs and wildlife in the heart of the Mojave Desert.
State officials are now in a position to have a strong voice on the issue, and the federal government’s announcement on the pipeline doesn’t mean the project is cleared to move ahead, said Frazier Haney, conservation director of the Mojave Desert Land Trust, which opposes the project.
“This may be an illusion that they’re close to building their project, but they still have some significant challenges to deal with,” Haney said.
Haney said while it’s not surprising that the Trump administration has sought to roll back environmental protections, he finds it troubling that the administration seems to have focused on helping Cadiz.
Opponents of the project have voiced concerns about the appointment of David Bernhardt as Trump’s deputy Interior secretary. Bernhardt was until recently a partner — along with Slater — in the law firm Brownstein Hyatt Farber Schreck LLP, which owns shares in Cadiz.
Some activists said the government’s reversal seems to be the result of Bernhardt’s influence.
“This about-face from BLM raises serious questions about the involvement of Deputy Secretary Bernhardt,” said Chris Saeger, executive director of the Western Values Project, a public lands nonprofit based in Whitefish, Montana.
“We warned officials that Bernhardt would do just this if confirmed — pave the way for his former clients and colleagues to make millions,” Saeger said in a statement, calling for an investigation and the release of internal documents related to the decision.
The ruling by the federal government comes nearly a decade after the company first proposed to build its pipeline alongside the railroad. The company signed a 99-year lease with the railroad in 2008.
In the federal agency’s letter to Cadiz, Nedd said officials determined that the ability to authorize the use of the easement for the water pipeline “falls within the decision rights of the railroad.”
Nedd said the agency also concluded the company’s proposal would “further a railroad purpose” in several ways. He said the company would benefit the railroad by providing water, installing fire sprinklers to protect wooden bridges along the rail line, installing turbines in the pipeline that would generate power, and enabling the operation of a steam train, among other things.
“Cadiz also proposes to operate a steam-based excursion train for tourists that utilizes water from the conveyance pipeline,” Nedd said in the letter. “Operation of such a tourist train would necessarily depend on the water obtained from the water pipeline.”
Nedd said those portions of the company’s plans would provide “critical benefits” to the railroad.
Pipeline route includes state-owned land
The State Lands Commission contacted Cadiz last month after the close of the state Legislature’s session, where the company’s opponents had pressed unsuccessfully for a bill that would require a review of the project by state agencies.
The legislation, AB1000, would prohibit the transfer of groundwater from a desert groundwater basin in the vicinity of protected public lands unless the State Lands Commission, working with the Department of Fish and Wildlife, determines the water transfer “will not adversely affect the natural or cultural resources, including groundwater resources or habitat.”
The bill, which was introduced by Assemblymember Laura Friedman, D-Glendale, was set aside by Senate leaders during the Appropriations Committee’s final hearing. The bill was shelved despite Gov. Jerry Brown’s last-minute appeal to Senate President Pro Tem Kevin de León and Assembly Speaker Anthony Rendon to pass the bill.
Lt. Gov. Gavin Newsom also urged lawmakers to approve the legislation. Newsom told Rendon and de León in a Sept. 1 letter that at a time when Trump’s administration is moving to weaken environmental protections and studying whether to shrink national monuments, Cadiz’s proposal to pump groundwater in the desert “merits additional scrutiny.”
Newsom chairs the three-member State Lands Commission, and he would have authority in considering a lease.
Cadiz has yet to say how it intends to respond to the State Lands Commission. In an Oct. 9 statement, the company stressed that the commission referred to an earlier iteration of the project in its letter and that the agency didn’t comment on the more recent environmental review, which was completed in 2012.
Cadiz said the state agency didn’t participate in workshops that were part of that review process, which later survived several challenges in court. The company said that environmental review is “final and conclusive” and the statute of limitations to challenge it has passed.
“The State Lands in question are not material to our ability to complete the Cadiz Water Project,” the company said.
Bugsch responded to Cadiz in a second letter on Thursday, saying his earlier comments weren’t “meant to undermine the adequacy of the 2012 EIR (Environmental Impact Report) or indicate that the Commission intends to challenge it.”
He reiterated the commission’s purpose was to inform Cadiz that its pipeline, as currently planned, would cross state-owned land and therefore would require a lease.
The state agency also took a different stance than the federal government on the lands along the railroad, telling Cadiz that what’s permitted on the property is “limited to railroad purposes.”
“A water pipeline is outside the scope of the right-of-way permit,” Bugsch wrote.
Whether the company has a right to build its pipeline alongside the railroad without securing an additional permit has long been a point of contention.
Much of the desert land surrounding Cadiz’s property is owned by the federal government. In 2015, when the Bureau of Land Management ruled the company would need a permit to build its pipeline, the agency based the decision on a 2011 legal opinion that railroads could only authorize other types of uses “that derive from or further a railroad purpose.”
On Sept. 1, however, the Interior Department’s solicitor issued a new legal opinion and tossed out that previous opinion, saying under the 1875 law, railroad companies are allowed to lease out portions of their easements without getting a federal permit as long as it doesn’t interfere with the railroad.
The latest intervention by the State Lands Commission places the Cadiz project — alongside the debates over immigration and environmental policies — as yet another issue on which California officials are clashing with the Trump administration.
Bugsch responded to Cadiz’s comment about the state-owned land not affecting its ability to complete the project, saying it’s unclear “whether this means that Cadiz disputes that the pipeline would cross state lands or that Cadiz is exploring alternatives to circumvent state lands.”
Either way, Bugsch said, because Cadiz hasn’t submitted a lease application, the state “cannot comprehensively analyze the project and make a final determination about whether the proposed pipeline would cross state lands.”
Conservationists who have been fighting the project said the revelation that the pipeline would cross state-owned land appears to be major setback for Cadiz.
“A project that seemed to be on the fast-track to construction has now hit a dead halt,” said David Lamfrom of the National Parks Conservation Association. “Until this gets resolved, Cadiz goes nowhere.”
The state commission could decide to require an additional review or could reject a lease altogether, said Lamfrom, who leads the nonprofit’s California desert and national wildlife programs. He said if the company decides to shift the pipeline route away from the railroad to avoid the state property, Cadiz would then have to go through a federal environmental review.
A political struggle
Courtney Degener, a Cadiz spokesperson, said the State Lands Commission was notified of the environmental review process under the California Environmental Quality Act, which began in 2011.
“They did not comment or participate even though they received” related documents, Degener said. “Their identification now of a property that they may own and may be crossed by the pipeline doesn’t change that and is primarily a real estate matter, not an environmental issue as the CEQA process has been completed.”
She said the state’s “potential ownership of the small strip of property” doesn’t change the analysis or the conclusions of the environmental review — a process that she said was “comprehensive and complete” and upheld in the courts.
Among California politicians, Cadiz has both friends and enemies.
Former Los Angeles Mayor Antonio Villaraigosa, now a gubernatorial candidate running against Newsom, worked as a consultant for Cadiz after leaving office in 2013 and has voiced support for the project.
Rep. Paul Cook (R-Apple Valley) was among 18 members of Congress who wrote to Interior Secretary Ryan Zinke in March urging him to take action on the Cadiz project and rescind the Obama administration’s decision blocking the pipeline.
Other lawmakers who signed that letter included Reps. Tom McClintock (R-Elk Grove), Tony Cárdenas (D-Los Angeles), Duncan Hunter (R-Alpine) and Jim Costa (D-Fresno). They said that the Cadiz project would provide needed water and generate jobs, and that the Obama administration wrongly slowed it down.
Cook also has urged the Trump administration to eliminate the southern third of Mojave Trails National Monument, which borders Cadiz’s property and includes lands on both sides of the railroad line.
Feinstein has fought the project for years, arguing that pumping precious water out of the desert would irreparably harm the environment.
“Cadiz has waited years for an administration willing to greenlight its plans without any real oversight,” Feinstein said. “That gamble has clearly paid off. Cadiz is now set to drain more than three times the aquifer’s natural recharge rate, putting life in the Mojave Desert at risk.”
She said she’s also concerned that Cadiz’s water contains hazardous contaminants at levels above safe drinking water standards. In August, Feinstein wrote to the Metropolitan Water District to raise concerns and questions.
General Manager Jeffrey Kightlinger responded in a Sept. 15 letter, saying once Cadiz submits a formal proposal, the district would study the potential impacts of transporting the water through the Colorado River Aqueduct. He said the groundwater contains contaminants such as arsenic, fluoride, chromium, nitrate and bromide, some of them at levels exceeding drinking water standards.
Kightlinger said the Cadiz water would likely need to be treated to meet water quality standards, and the infrastructure described in the environmental review documents “may not be adequate to meet Metropolitan’s requirements for introduction of water” into the aqueduct.
He also said, among other things, that the project is “in a preliminary planning stage and much about it is still unknown.”
In addition to designing the water pipeline, Cadiz Inc’s next steps will include finalizing arrangements with water agencies that plan to buy the water, and reaching an agreement with the Metropolitan Water District to transport the water to cities.
Ian James writes about water and environmental issues for The Desert Sun. Reach him at firstname.lastname@example.org, 760-778-4693 or @TDSIanJames.