04 Apr New, Frivolous Opponent Lawsuit a PR Stunt with No Impact on Water Project’s Continued Progress
Yesterday, the National Parks Conservation Association (NPCA) filed a lawsuit in federal Court against the U.S. Department of the Interior (DOI) challenging DOI Solicitor Opinion M-37048 related to third-party use of railroad rights-of-way. The Company is not named as a party to the NPCA lawsuit and its outcome is inconsequential to the Project’s implementation. Every previous claim brought by NPCA to challenge the Project has been denied by California’s trial and appellate courts.
The Cadiz Water Project, which will conserve water lost to evaporation and create a new reliable water supply for Southern California, was developed with the goal of avoiding adverse impacts to public lands and the environment, a commitment that was confirmed by its successful approval under the California Environmental Quality Act – the nation’s most stringent environmental law. In order to protect the local environment, the Project’s facilities will be constructed entirely on private land and within an active, disturbed railroad right-of-way owned by the Arizona and California Railroad Company (ARZC) instead of on open federal lands. The Project will further, in part, numerous railroad purposes and constitutes an incidental use that is within the scope of the ARZC’s existing right-of-way. As a result, the Project does not require federal permits in addition to its state and local permits to construct a conveyance pipeline and related facilities within the existing ARZC railroad right-of-way.
M-37048 and the two Solicitor Opinions that preceded it have all been clear that third parties do not require permission from the federal government to use an existing railroad right-of-way when that use includes elements furthering railroad purposes. M-37048 also summarizes that “railroad purposes,” as have been required for third-party uses, should be interpreted liberally and that railroads have “wide discretion” in leasing access to rights-of-way. M-37048 is in line with historic policy under multiple Democratic and Republican federal administrations and consistent with historic practice of co-locating infrastructure within already disturbed rights-of-way to avoid impacts to public lands.
According to the BLM, there are more than 3,500 instances and thousands of miles of infrastructure already co-located within railroad corridors across the Western United States, including water pipelines. Building pipelines and co-locating infrastructure within existing railway corridors is good public policy that has reduced environmental impacts to federal land. Thus, when BLM California attempted to change that policy via a controversial evaluation of the Cadiz Project in 2015, bipartisan Members of Congress and numerous other stakeholders consistently expressed grave concerns to both current and former BLM and DOI officials. In addition, in early 2017 Congress by bi-partisan vote refused to continue the unique budget requirement that the Cadiz Water Project obtain Interior certification of its proposed use of the ARZC right-of-way.
NPCA consistently ignores and misleads the public about these facts choosing instead to file lawsuits at every opportunity, and, when those lawsuits have failed, it relies on its extensive network of political connections at all levels of government to create new hurdles unique to the Cadiz Water Project. However, time and again the courts and public agencies have ruled against NPCA, confirming that the project is based on sound science, has followed every law, and will not harm the California desert or any public lands. NPCA’s new lawsuit is nothing more than a public relations stunt designed to help it raise funds and generate headlines for its ongoing fact-free campaign to slow the progress of our project. It’s a shame NPCA is willing to waste taxpayer dollars on a frivolous lawsuit that won’t stop the Project and only puts our federal lands at risk.
Additional Background – Timeline of Federal Regulatory Review of Cadiz Water Project
- 2001: DOI/BLM grant a right-of-way (ROW) over open public land to the first iteration of the project developed in partnership with Metropolitan Water District of Southern California. This project is larger in size and scope and would have constructed a pipeline on federal land.
- 2008-2009: Project is re-envisioned based on new science and modeling and enters into a lease to use an active, disturbed railroad ROW for a water pipeline and power and fire suppression benefits for ARZC.
- 2009: DOI determines new Water Project does not require federal action, b/c it will use existing ARZC ROW and not be constructed on any federal lands.
- 2011: DOI issues new Solicitor Opinion finding that third party uses of railroad rights of way that further in part a railroad purpose do not require further federal action or permitting. Since Project will furthers a railroad purpose in addition to its commercial purposes, the Project still does not require additional federal permits.
- 2015: BLM California Office reverses course, concludes that the Water Project does need separate ROW, that may be subject to a federal environmental review. Senator Feinstein blocks such federal environmental review of Project during federal budget process.
- 2015-2017: Bi-partisan members of congress call for investigation out of concern for impacts of BLM policy on 3,500 existing instances of infrastructure co-located in railroad ROWs and threat of greater environmental impacts if infrastructure is no longer co-located therein.
- 2016: FOIA disclosure reveals BLM communications with stock market short-sellers who stood to profit from 2015 finding against Cadiz.
- 2017: Congress eliminates Feinstein requirement that BLM review Project’s use of the ARZC right-of-way and after, stakeholder engagement including letters from Members of Congress, DOI/BLM withdraws controversial 2015 finding, concludes Water Project furthers railroad purposes and that a new ROW permit is not required.
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