By Jim Steinberg
San Bernardino Sun
LOS ANGELES – The CEO for embattled Cadiz Inc. has a plan to keep alive a controversial project to transfer ancient groundwater in a remote part of San Bernardino County’s Mojave Desert to parts of Orange County and other locations, where it could serve as many as 400,000 people.
In an interview late last week, Cadiz CEO Scott Slater said he would be seeking a review of the decision by the U.S. Bureau of Land Management to reject Cadiz’s proposed use of an 1875 railway right-of-way to build a critical 43-mile pipeline from the Fenner Valley — about 40 miles northeast of Twentynine Palms — to the Colorado River Aqueduct, where it could be delivered to future customers.
If that fails, he will take his battle to court, he said.
“This is pure politics,” said Slater, who is considered by many to be an expert in groundwater law and water policy.
According to a letter from the BLM, the proposed use of the railroad right-of-way for the pipeline is outside the scope of the Arizona and California Railroad’s use of right-of-way grants held under the General Railroad Right-of-Way Act of March 3, 1875.
The letter to Cadiz warns that “proceeding with new activities or continued activities ... without authorization from the BLM could result in the BLM instituting trespass proceedings.”
The ARZC, as the short-line railroad is called, has agreed to let Cadiz use its right-of-way. The railroad moves primarily petroleum across its 190 miles of track.
As part of its water project, Cadiz planned to build fire-suppression and power-generation capabilities for the railroad.
“BLM has determined that the project does not derive or further a railroad purpose,” said the letter signed by James Kenna, California BLM director, who has since retired.
For that reason, in order for the pipeline to proceed along the right-of-way, the BLM must approve that use. And for that to happen, a full federal environmental review must be completed.
Slater called the BLM’s decision an “outrage” that ignores key precedent set forth in a memorandum written in November 2011 by the top attorney for the Department of Interior, which liberalizes the definition of railroad purpose to mean that BLM permission is not needed if the purpose benefits the railroad in some way.
“Every American should be infuriated” at the way the BLM has deliberately ignored the evolution, determined by a top federal lawyer, of a law written more than 100 years before, said Slater, who is author of “California Water Law and Policy,” a two-volume treatise, and has taught law and graduate classes at Pepperdine University, UC Santa Barbara and the University of Western Australia, He also revised the water code for Western Australia.
On the other hand, David Lamfrom, director of the California Desert and Wildlife Program for the National Parks Conservation Service, said: “The Bureau of Land Management’s decision is supported law, policy and common sense and prevents a clear attempt by Cadiz Inc. to create a loophole to avoid federal review.
“The BLM has a responsibility to all Americans to fully understand the impacts this project proposes on public lands, including impacts on our water resources and national parks. This decision opens the door for good science and objective decision-makers to participate.”
Also agreeing with the BLM decision is Sen. Dianne Feinstein, D-Calif.
“I remain concerned the Cadiz project could damage the Mojave Desert beyond repair,” she said in a statement, “and believe the BLM decision to deny the right-of-way is the right one.”
“We need to use water more responsibly, not less, and the Cadiz project is a bad idea,” said Feinstein, who is attempting to include the Cadiz Valley in her proposed Mojave Trails National Monument, one of three proposed for the region.
Rep. Ken Calvert, R-Corona, said, “I have looked at the Cadiz Water Project carefully and I believe it has merit. ... I have concerns about what kind of precedent this sets for railroads across the country and the ability of an agency to deny historically protected property rights.”
Calvert is chairman of the House Interior and Environmental Appropriations Subcommittee.
The project has been approved by the San Bernardino County Board of Supervisors.
When asked about the BLM decision, 1st District Supervisor Robert A. Lovingood said, “The BLM decision will be a roadblock for the project. But this is a matter between the BLM and the company. ...”
For the past eight years, Feinstein has attached a rider to the legislation that funds the Department of the Interior, the umbrella agency for the BLM, that effectively blocks the Cadiz Valley aquifer from being drained, her office said.
Last week, Cadiz said it found out about the BLM decision through a third party.
Before the decision, Cadiz had been saying it and its public agency partner, the Santa Margarita Water District in Orange County, were on track to begin construction of the pipeline this year or early next year.