November 9, 2015

Riders on the Storm

Democrats also use appropriations riders, despite recent protest.

Cadiz agricultural well head and pond in the Mojave Desert.

By Jim Swift
The Weekly Standard

A chorus of Democrats and activists are raising hackles about the potential of Republican policy riders being added to a year-end omnibus spending bill. Policy riders (or “limitation riders”) are the opposite of earmarks. Where the now-extinct earmark required money to be used on a certain project, a rider is a paragraph or two in an appropriations bill dictating what the money cannot be used for.

Senate Minority Leader Harry Reid told Roll Call:
"The president, Pelosi, Reid, my entire caucus has agreed to hold hands. We are not going to approve anything that has all these ideological, short-sighted, crazy ideas; to do away with women’s health, to do away with clean air, to attack Dodd-Frank and all these.”
David Goldston, director of government affairs at the environmental group National Resources Defense Council told E & E News in an interview: “on riders there’s going to be a very private, intense tussle between Democrats and Republican leaders on whether spending bills will be used to block environmental progress.”

This, Majority Leader McConnell has said, is the likely outcome: “Both sides will get into a negotiation here at the Appropriations Committee level, and at the end of the day, there will be some riders.” Reid, however, has claimed “We don’t have any riders.”

The sudden about-face on riders from Democrats may seem strange, since in recent years Democrats have repeatedly sought and successfully secured policy riders. But, this is the first appropriations season during the Obama presidency where Republicans control both chambers, so now policy riders are a bad thing, of course.

It remains to be seen how far Democrats will go in their newfound opposition to riders. Just last week, 25 Democratic senators, a majority of that caucus, wrote to the president, urging him to “reject all spending bill riders that would undermine Endangered Species Act protections…” If Reid, Pelosi, and the President insist they’re quitting policy riders cold turkey, there are likely to be some Democratic casualties.

One of the biggest winners (and perhaps hypocrites) has been California senator Dianne Feinstein, who has used her position on the Appropriations Committee to stop a planned water project in her state. Feinstein has fought the project for 15 years.

The project is called the Cadiz Valley Water Conservation, Recovery, and Storage Project. Cadiz owns 34,000 acres of land in the Fenner Valley in San Bernadino County, and below it are millions of acre-feet of water. With an acre-foot clocking in at 326,000 gallons, that’s hundreds of billions of gallons of water. Currently, the project is a combined effort by Cadiz, the Arizona & California Railroad, and a handful of water districts, like the Santa Margarita Water District.

California, as most know, is experiencing severe drought, and the project’s backers say 400,000 Californians could benefit from this water, some of which would otherwise evaporate into the thin desert air. An Environmental Impact Report, required by California’s stringent Environmental Quality Act of 1970 observes the following about the Cadiz project:

"California’s Constitution mandates maximizing the reasonable and beneficial use of water and avoidance of waste. The fundamental purpose of the Project is to save substantial quantities of groundwater that are present wasted and lost to evaporation by natural processes. In the absence of this Project, approximately 3 million acre-feet of groundwater presently held in storage between the proposed wellfield and the Dry Lakes would become saline and evaporate over the next 100 years. By strategically managing groundwater levels, the Project would conserve up to 2 million acre-feet of this water, retrieving it from storage before it is lost to evaporation.”

But even given the water emergency, Feinstein and other opponents of the project aren’t relenting.

The project was tried once before, in the early 2000s, but with a different partner: the Metropolitan Water District of Southern California. Feinstein and two House colleagues wrote to the Bush-era Interior Department to express their concerns about such use of the aquifer and its potential impact on the desert, which Feinstein, as author of the California Desert Protection Act, has taken a special interest in.

The Bush Interior Department signed off on the project, which needed government approval to “wheel” the water across a Bureau of Land Management “right of way” via a 35-mile pipeline. Feinstein and environmental allies convinced the board of the Metropolitan Water District to reject the proposal, which it narrowly did, as the LA Times reported: “with 50.25% of the board’s weighted votes in favor.”

The environmental and anti-development activists at Public Citizen crowed: "Cadiz Water Privatization Project Permanently Stopped!"

Feinstein knew the truth, though: The Cadiz project and its backers weren't going to go quietly, which is why she inserted a policy rider into the FY07 continuing resolution that blocked any funding for the project.

Only when Cadiz revised and revived the project and began to make progress with its new partners, the Santa Margarita Water District and the Arizona & California Railroad, did Feinstein expand the rider— inserted into the FY10 Interior Appropriations Bill, which became law in 2009 — to tighten the noose with this clause:

“Sec. 110. (a) Any proposed new use of the Arizona & California Railroad Company's Right of Way for conveyance of water shall not proceed unless the Secretary of the Interior certifies that the proposed new use is within the scope of the Right of Way.”

The Feinstein rider, due to her clout in Congress, has remained in effect ever since. But now, with the clarion call of the Democratic leaders for Republicans to eschew policy riders in the year-end omnibus bill, the rider is at risk.

At an Appropriations Committee hearing in July, Feinstein complained at length about policy riders. E & E News reported it this way:

"Sen. Dianne Feinstein (D-Calif.) in turn lectured Republicans for using the spending bill to block environmental policies they oppose, arguing that doing so would result in a continuing resolution or omnibus package to fund the federal government come September.”

Feinstein argued that riders were just “a member really trying to impose their will to change a law on this bill, which is essentially a numbers bill of appropriations.” She further denounced the practice writ large:

“You shouldn’t do these on appropriations bills, if you want the appropriation bills to pass in regular order. Instead, there is no change for six years. It’s either a CR or an Omnibus, maybe a few things get stuck into an Omnibus, but what kind of progress is that for the people we serve in this nation? I don’t think it’s any real progress, and so, you’ve got this enormous conflict now between both sides. And I don’t know where this takes us, because we’re not going to let an appropriations bill succeed. What kind of long term sense does it make to continue in this way? So, I want to make a call for some sanity.”

Yet, despite this impassioned plea, her rider to block the Cadiz project had been included in the Interior Appropriations bill.

When asked whether Feinstein’s Cadiz rider would make it into yet another omnibus bill, a GOP aide on the Appropriations Committee responded: “We cannot offer any insight as to the ultimate fate of this provision, but it certainly illustrates that Democrats are plenty capable of using appropriations riders to pursue policy outcomes.”

When Feinstein complained about using policy riders as leverage for Senators to “impose their will to change a law,” she spoke from experience. That’s because her rider preventing the Cadiz project helped do just that.

To get the water to its new partners, Cadiz signed an agreement with the Arizona & California Railroad (ARZC), which has a right-of-way granted pursuant to the General Right-of-Way Act of 1875. This would enable Cadiz to deposit the water into the Colorado River Aqueduct, which services numerous water districts, including that of its new main partner, the Santa Margarita Water District.

In the case of railroads on public land, many rights-of-way are governed by the 1875 act, as is the case here. The 1875 Act is also subject to the interpretation by the courts, and by the legal opinions of the solicitor of the Department of the Interior, which oversees BLM. The solicitor issues “M opinions” that are intended to provide guidance to enforcement of public laws, and one, issued in 1989 (M-36964) effectively gave the green light to the Cadiz.

Back in the 1980s, MCI (a telecom that would later become Verizon), wanted to install fiber optic communications lines on a railroad right-of-way controlled by Southern Pacific Transportation Company. The decision clarified that Southern Pacific did not need to seek BLM’s approval to allow MCI to install the cable because it, even though a commercial venture, was “not inconsistent with railroad operations" because it benefited the railroad's operations.

The prospect of this M-Opinion, which Cadiz and the railroad believe they are in compliance with, horrified Feinstein. After securing the rider in the FY10 Interior Appropriations bill, she trumpeted the achievement in a letter to former Senate colleague and then-Interior Secretary Ken Salazar.

“I write to bring to your attention language included in the FY10 Interior Appropriations bill regarding Cadiz LLC’s proposed use of the Arizona & California Railroad Right-of-Way (ROW) for a water conveyance pipeline in the Mojave Desert. I request that the Department start now to reexamine the previous administration’s position that the proposed pipeline does not require federal authorization.”

Feinstein wrote about a 2005 federal court opinion, Home on the Range v. AT&T Corp., which she claims the court “found that easements under the 1875 General Railroad Right-of-Way Act are limited to uses for railroad purposes, excluding non-rail activities analogous to the water pipeline here.”

The letter’s conclusion reinforced the ask: “I would like to request that the Department now initiate a review of its right-of-way policy regarding this project, as well as the Solicitor’s Opinion it is premised on, rather than waiting until the legislation is ultimately signed into law. It is my hope that by acting now, the Department can resolve the scope of the right-of-way promptly, rather than allowing legal questions and uncertainty to linger.”

Put another way, Feinstein went on record to say she’d hold up the project until BLM changed how it interpreted the law to her liking.

Two years after the letter was sent, the Interior Department did just what she asked, and issued M-37025, an M-Opinion from the Solicitor that withdrew the guidance provided by the 1989 M-Opinion that BLM approval was not required for activity not inconsistent with railroad operations.

The new M-Opinion provided that, in order to be within the scope of the Right-of-Way, “a railroad’s authority to undertake or authorize activities is limited to those activities that derives from or further a railroad purpose…” Only now, each activity “requires a fact specific case-by-case inquiry.”

The new M-Opinion was a setback, but still found that, in the case of MCI, its activity “furthered, at least in part, a railroad purpose…” and even that “…MCI’s line was primarily a commercial trunk line, a portion of its capacity was dedicated to the railroad.” Under the new guidance, Cadiz and the Arizona & California Railroad made their case to BLM as to why the water pipeline not only would further a railroad purpose, but would do so in a way that satisfies the underlying 1875 act itself.

In a 2013 staff memorandum to the Interior secretary, Jim Kenna, the director of the BLM in California, highlighted the design features in the water project that Cadiz and the railroad argued would further railroad purposes:

  • Fire hydrants placed along railroad tracks for fire suppression.
  • Access road to be constructed on leased area for railroad company for maintenance purposes or in case of emergencies such as rail car derailment;
  • Access to 10,000 gallons of water per day for vegetation control, washing rail cars, offices, and other contemplated improvements;
  • Access to power at meters located along the railroad tracks and emergency access to power at any location;
  • Water service for steam powered locomotives, to be used as excursion trains.
  • Right to connect and deliver water to any future water production facilities within the ROW to the pipeline and facilities.

The original 1875 act provides that the right of way is also granted for “ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations…”

The water stations Cadiz would supply are right there in the actual law. However, in a formal letter, BLM disagreed that the pipeline furthers railroad purposes. The letter is sadly comical, a Rube Goldberg exercise in futile bureaucratese.

The planned water suppression system, designed to remotely stop a disastrous trestle fire that could cripple the railroad for weeks?

“Use of water for fire suppression on creosote-treated timber is an uncommon industry practice, with dry sand being the preferred method, and thus the water-based hydrants and sprinklers, and fiber optic telemetry used to operate them do not derive from or further a railroad purpose. A BLM authorization is needed for use of fire suppression facilities along the 43 mile stretch of the ROWs that runs across BLM administered public land.”

The water stations for a steam-based tourism train? “may derive from or further a railroad purpose (emphasis added)…” but “…the excursion train’s prospective use of a small portion of the pipeline’s water does not convert the excursion train, the pipeline, or the water that runs through the pipeline into a legitimate railroad purpose.”

In other words, no, no, and… no: You have to get BLM approval now.

Except, BLM can’t even process an application from Cadiz and the ARZC even if it wanted to, as noted in a BLM memo:

“If a decision is made that the proposed use is not within the scope of the 1875 railroad ROW, such a pipeline would require a FLPMA ROW authorization from the BLM as it crosses BLM-managed lands. However, the processing of such a ROW would be prohibited this year, given the language in the 2012 Consolidated Appropriations Act H.R. 2055 118(b).”

The Cadiz project has bipartisan support in the House, as numerous Democrats and Republicans have written letters of support, and perhaps explains why the House Interior Appropriations bill does not contain the Feinstein rider.

While the BLM has shut the door to Cadiz and the ARZC’s quest to build the pipeline without their approval via an er, novel, interpretation of the law, if Feinstein’s anti-Cadiz rider isn’t included in the year-end omnibus, the project’s backers could apply for formal BLM approval. Other legal recourse, such as a lawsuit challenging BLM’s determination, is still on the table.

The question for Feinstein and Democrats is: How willing are they to part with policy riders on appropriations bills? In the coming weeks, we’ll find out, I guess, because Senator Feinstein’s office did not respond to a request for comment.