In another U-turn from existing environmental policy, the Trump administration has eased the way for a controversial California desert water project that President Obama’s team had blocked.
Federal directives drafted under Obama had erected a major obstacle to Cadiz Inc.’s long-standing plans to pump Mojave Desert groundwater and sell it to urban Southern California.
But in a March 29 memo, an acting assistant director at the U.S. Bureau of Land Management revoked two legal guidances that underpinned the agency’s 2015 decision that Cadiz could not use an existing federal railroad right-of-way for a new water pipeline to carry supplies from the project’s proposed well field to the Colorado River Aqueduct.
That meant Cadiz would have to go through federal environmental review to construct a pipeline over federal land, a lengthy and costly process that the company wants to avoid.
Cadiz immediately asked the BLM to reverse what it called a flawed decision. The Obama administration declined to do so.
The new administration appears sympathetic to the company’s concerns.
Although the one-page order doesn’t mention Cadiz, it sets the stage for reversing the finding by BLM’s California field office, which determined that the company needed federal approval for its proposed 43-mile pipeline.
The memo from the BLM, issued under Trump, also states that future right-of-way decisions will be made by the agency’s Washington office.
Cadiz Chief Executive Scott Slater said that he is “cautiously optimistic” that the new decision will open the way for a pipeline on the right-of-way.
U.S. Sen. Dianne Feinstein (D-Calif.), a longtime opponent of the groundwater project, condemned the move.
“The Trump administration has once again put corporate profits ahead of the public’s interest,” she said in a statement.
Feinstein called the reversal “a blatant attempt to muscle the Cadiz water project through,” and “an effort to circumvent an environmental review that any project of this magnitude on federal land would normally undergo.”
The Cadiz project was approved by San Bernardino County, and the company prevailed in several environmental lawsuits filed under state law.
But Feinstein, who was instrumental in creating the nearby Mojave National Preserve, has doggedly fought Cadiz. For years she has attached a rider to congressional appropriations bills barring the BLM from spending money on the Cadiz project.
The company, founded by Keith Brackpool, wants to pump enough groundwater from beneath its private Mojave holdings to supply 100,000 homes a year and sell it to urban California at prices that could, over the project's 50-year-life, reap $1 billion to $2 billion in revenue.
Federal hydrologists have said Cadiz experts are overstating the natural recharge rate of the desert aquifer. And public land advocates argue the pumping could dry up springs vital to wildlife on surrounding federal land, a claim that Cadiz rejects.
The company has garnered congressional support, including from Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee. Bishop was one of 18 members of Congress that a month ago urged Interior Secretary Ryan Zinke to withdraw the BLM directives — which they said threatened businesses’ ability to run power, telephone or fiber optic lines along railroad rights-of-way.
“I think it has a lot to do with things other than Cadiz,” Slater said.
The issue revolves around how much leeway railroads have in letting other interests use their rights-of-way.
An Interior Department solicitor’s 1989 opinion concluded that the 1875 railroad law allowed railroads to authorize other uses without Interior approval. A later solicitor opinion modified that, saying other uses had to derive from or further a railroad purpose.
The two rescinded memos laid out guidelines for deciding what furthered railroad purposes. And the California BLM office subsequently concluded that "conveyance of water for public consumption is not a railroad purpose.”
That finding, said opposition attorney Adam Keats, can still be used against the project.
“This is not an easy thing for the Trump administration to unwind,” he said.
Slater is a water attorney and shareholder of the law firm Brownstein Hyatt Farber Schreck, which runs a high-profile lobbying operation in Washington. For three years Slater was co-chair, along with David Bernhardt, of the firm’s Natural Resources Department.
Bernhardt, who served as Interior Department solicitor under the George W. Bush administration, is reportedly a candidate for a top-level Interior position under Trump. The department oversees the BLM.
Slater said Bernhardt was not behind last week’s action. “David did not lobby for us…. I do not believe that he had anything to do with it.”