Orange County Trial Court Upholds Cadiz Valley Groundwater Project

Water Law  

May 6, 2014

In the midst of a statewide drought, Judge Gail Andler in the Orange County Superior Court on Thursday, May 1 issued a sweeping ruling to uphold the Cadiz Valley Water Conservation, Recovery and Storage Project.  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 lead agency under the California Environmental Quality Act (CEQA), and the County, as the agency responsible for regulating the Project under the County’s own Desert Groundwater Management Ordinance. Downey Brand represented the County during its review, approval and litigation of the Cadiz Project.

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, a brine mining company, and a host of union, ratepayer, and environmental groups filed suit to halt the project. Originally, a total of nine separate lawsuits were filed in three county superior courts and the Eastern District of California. Three of the nine cases were resolved before trial and the remaining cases comprised 37 causes of action and four distinct administrative records. 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.

On Thursday, May 1, Judge Andler issued the order denying all six actions.  The court’s ruling affirms 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.