Cadiz Valley

A pilot well on Cadiz Inc. property in the Mojave Desert. Photo credit: Cadiz Inc.

In a series of sweeping opinions, the Fourth Appellate District on Tuesday, May 10, upheld the Cadiz Valley Water Conservation, Recovery and Storage Project against six separate challenges brought by a host of environmental organizations and a salt mining operation. The Cadiz Project, initiated by the Santa Margarita Water District (SMWD) and Cadiz, Inc. in a public/private partnership, involves plans to pump native groundwater from the Fenner Valley Aquifer System in the Mojave Desert and deliver the water for municipal and industrial uses in Southern California. A later phase of the Project would include importing water for storage in the basin. With this ruling, the Cadiz Project has survived an onslaught of organized opposition. Six legal challenges were directed at overturning approvals granted by SMWD, as the CEQA lead agency, and the County, as the agency responsible for regulating the Project under the County’s own Desert Groundwater Management Ordinance.

Cadiz is the owner of approximately 45,000 acres of land in eastern San Bernardino County, most of which overlies the Fenner Valley aquifer system. Cadiz and SMWD proposed to appropriate an average of 50,000 acre feet of groundwater per year (afy) over a period of 50 years and to deliver the groundwater via the Colorado River Aqueduct. Enacted in 2002, the County’s Groundwater Ordinance is designed to ensure that groundwater extractions maintain the safe yield of affected aquifers. Consistent with this principle, the Ordinance requires that any applicant proposing to extract groundwater from the County’s unadjudicated basins first secure a permit from the County or otherwise qualify for an “exclusion.” The County has the discretion to grant an exclusion if the applicant prepares a groundwater management plan that contains strong and enforceable measures aimed at protecting the health and continued ability of affected aquifers to store and maintain water. In the case of the Cadiz Project, SMWD and Cadiz proceeded under the exclusion process based on a comprehensive Groundwater Monitoring, Management, and Mitigation Plan (GMMMP). The GMMMP imposes a detailed monitoring regime, strict pumping limits, and multiple protections against subsidence, water quality degradation, and other indicia of overdraft. The GMMMP and its accompanying agreements also secure a strong role for the County in overseeing groundwater extractions and enforcing basin protections.

SMWD and the County completed environmental review and approved project plans in July and October 2012, respectively. Delaware Tetra Technologies, Inc., a salt mining company, and Center for Biological Diversity and a host of other environmental groups filed a series of six lawsuits to halt the project. The bulk of the trial arguments centered on SMWD’s role as lead agency, the Project’s environmental review under CEQA, and the governance of water extractions under the County’s Ordinance and principles of California water law. The trial court in May 2014 denied all claims, and plaintiffs appealed.

On Tuesday, May 10, the Fourth Appellate District issued six opinions—two published and four unpublished—denying all six appeals in Center for Biological Diversity v. County of San Bernardino, Case Nos. G051058 (published) and G051080 (unpublished), and Delaware Tetra Technologies, Inc. v. County of San Bernardino, Case Nos. G050858 (published), G050864, G050869, and G050881 (all unpublished). The court’s rulings affirm the management plan adopted to protect the aquifer and the framework set by the County and SMWD for review of the Project’s physical effects on the environment.

Downey Brand attorneys, Christian Marsh, Kevin O’Brien, Steve Saxton, Rebecca Smith and Arielle Harris were part of the legal team that secured this decision on behalf of the County of San Bernardino.