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INFORMATION MEMORANDUM FOR THE SECRETARY
FROM:
Jim Kenna, State Director California, Bureau of Land Management
SUBJECT:
Cadiz Valley Water Conservation, Recovery and Storage Project
I.
INTRODUCTION
Cadiz Inc., a Los Angeles based resource development company and the Santa Margarita
Water District have proposed to construct a 43 mile water pipeline from privately owned
wells in Cadiz to the Colorado River Aqueduct, for purposes of conveying groundwater
from the Mojave Desert to Los Angeles. Construction of this pipeline is proposed to
occur across BLM land within a railroad right-of-way (ROW) held by the Arizona &
California Railroad Company (ARZC) under the General Railroad Right-of-Way Act of
March 3, 1875 (1875 Act). Prior Department practice, pursuant to M-Opinion 36964 had
allowed the railroad grantee to enter into agreements for a third-party to use portions of
such ROWs across Department-managed lands without authorization from the
Department.
On November 4, 2011, the Solicitor issued Opinion M-37025 which withdrew those
portions of Opinion M-36964 relating to the 1875 Act, and concluded that a railroad can
only authorize third parties to use 1875 ROWs for those activities that derive from or
further a railroad purpose. As a result, the BLM must now determine whether Cadiz’s
proposed pipeline falls within this scope of the ARZC’s ROW and how to proceed with
processing an authorization for the pipeline if it does not fall within the scope of the
ROW.
Current Status: In 2011, BLM resumed contact with Cadiz, Inc. after seeing various news
reports about the proposed project. Throughout the course of the last 10 months, BLM
has requested specific information from Cadiz, ARZC, and the Santa Margarita Water
District about the proposed pipeline and its relationship to railroad. The information is
needed in order to determine BLM’s jurisdiction. This information has not been provided
and BLM does not have sufficient information to make the determination. BLM has
contacted ARZC to set up a meeting with the State Director but a meeting date has not
been set.
II.
BACKGROUND
In 2001, a pipeline ROW was proposed by the Metropolitan Water District for the Cadiz
water project. That ROW crossed BLM managed lands outside of ARZC railroad ROW.
An EIS/EIR was prepared and BLM offered a ROW grant for the project in 2002. The
Metropolitan board of directors voted to reject the terms and conditions and not to
proceed with the project. Consequently, no right-of-way was issued. The case file was
closed.
In 2005, Cadiz, Inc. in conjunction with several Southern California water districts
resumed interest in the project and in 2008, entered into a Longitudinal Lease Agreement
with ARZC for a pipeline along their 1875 Act railroad ROW that crossed BLM managed
lands.
In August 2011, BLM resumed contact with Cadiz, Inc., requesting specific information
about the project. BLM has had several correspondence exchanges with Cadiz, Inc.,
ARZC and Santa Margarita Water District since then to determine BLM’s jurisdiction.
The last correspondence was received on May 22, 2012 but the information provided has
not sufficient enough to make a determination.
In November 2011, Solicitor opinion M-37025 was issued, evaluating the legality of
railroad grantees issuing easements to third-parties within their 1875 rights of ways. The
determination was that such easements must be “limited to those activities that derive
from or further a railroad purpose.” In December 2011, IM-2012-038 was issued by
BLM to provide guidance on implementing the M opinion, and concluded that decisions
for whether or not proposed activities meet this criteria will be decided on a case by case
basis.
In December 2011, a draft EIR was issued by the Santa Margarita Water District,
describing the pipeline and roadways as supportive to the existing railroad. Cadiz Inc.,
and ARZC also amended their Longitudinal Lease Agreement to reference the Solicitor’s
M-Opinion and incorporate six design features that they claim would derive and further
railroad purposes. These design features include:
· 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.
All project facilities and pipelines proposed in the draft EIR are located on private lands
or within the 1875 ROW. BLM has not issued, nor has been requested to issue ROW or
permits for wells or any other facilities in these areas. BLM submitted comments to the
draft EIS requesting copies of the plan related to water conveyance along the railroad, the
Longitudinal Lease Agreement between Cadiz, Inc. and ARZC and all other supporting
documentation. In response, BLM received a copy of the lease agreement but the
information is not sufficient to determine BLM’s jurisdiction over the project.
Language in the 2012 Appropriations directs the Secretary to determine if Cadiz’s
pipeline is within the scope of the ARZC ROW. The rider also specified that no
appropriated funding should be spent for approval of a ROW related to the Cadiz water
project.
The BLM must decide whether the proposed action is within the scope of the 1875
railroad ROW. A yes/no decision should be supported by expert resources familiar with
what constitutes standard industry practices for water use associated with railroad ROWs.
If a decision is made that the proposed use is within the scope of the 1875 railroad ROW,
no further right-of-way authorization or associated environmental impact analysis would
be required for the pipeline.
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).
III.
POSITION of INTERESTED PARTIES
Senator Feinstein has expressed concerns with the project and has an interest in
protecting the desert ecosystem, especially the region surrounding the project.
Cadiz, Inc., Arizona & California Railroad, El Paso Natural Gas and Questar have
significant financial interests to move forward with this proposal to extract and transport
groundwater out of the Mojave Desert.
Santa Margarita Water District has an interest in providing water resources to its own
customers as well as several other southern California water districts including; Three
Valleys Municipal Water District, Golden State Water Company, Suburban Water
Systems, Jurupa Community Services District and the California Water Service
Company.
Members of the public have expressed concern that the modeling used to show recharge
of the desert groundwater is not accurate.