1.6.16 – On December 21, 2015, nine Congressional representatives from California joined in a written request for reconsideration of the US Bureau of Land Management’s (“BLM”) October 2015 preliminary Cadiz Water Project guidance, which rejected the Project’s proposed use of an existing railroad right-of-way for its conveyance pipeline. The written request, which characterizes the guidance as “legally flawed,”  follows an in-person meeting held in November 2015 regarding the guidance between the BLM National Director and members of Congress regarding the guidance.  The Company is thankful for the bi-partisan Congressional support for a prompt reversal of the guidance issued by the BLM.

Over the last several years, the Company and its public agency partner, the Santa Margarita Water District, have jointly sought confirmation from the BLM that no new federal right-of-way permit is required for the Project’s water conveyance pipeline, as the route provides numerous benefits to the host railroad and will avoid environmental impacts.  However, in October 2015, the state director of the BLM California office, on his last day before retiring, issued a preliminary “non-binding” guidance letter finding that the pipeline is outside the scope of the railroad right-of-way, because in addition to providing railroad benefits it will also provide water for public consumption. Consequently, the guidance stated that the BLM would require a new, separate right-of-way permit for pipeline construction to proceed.

This October 2015 guidance altered existing federal right-of-way law and policy, which has allowed railroads to grant third party uses without additional permitting so long as they derive from OR further a railroad purpose.  Thousands of existing and proposed right-of-way uses are affected by the precedent established by the BLM’s Cadiz Water Project pipeline guidance.

The December correspondence from the bi-partisan Congressional Representatives criticizes BLM California’s new position and requests a timely reconsideration by the National office.   The letter states in part:

“We believe the October 2015 Cadiz decision to be flawed and in direct conflict with the 2011 M-Opinion. Consequently, we strongly urge you toreissue the California State Office’s decision in a manner consistent with the test provided for in the 2011 M-Opinion. Failure to do so will cast a cloud on all other activities within 1875 Act ROWs that rely on the M-Opinion as the basis for action, causing significant and avoidable uncertainty to activities nationwide.”

The December letter was signed by the following Congressional members, who represent districts across 19 California counties, including:

• Representative Ken Calvert, (R-Corona, CD-42) – Chairman, House Appropriations Subcommittee on Interior, Environment and Related Agencies
• Representative Tony Cardenas, (D- Panorama City, CD-29)
• Representative Paul Cook, (R-Yucca Valley, CD-8)
• Representative Jim Costa, (D-Fresno, CD-16)
• Representative Duncan Hunter, (R-El Cajon, CD-50)
• Representative Tom McClintock, (R – Roseville, CD – 4) – Chairman, House Subcommittee on Federal Lands
• Representative Peters, (D-San Diego, CD-52)
• Representative Dana Rohrbacher, (R-Huntington Beach, CD-48)
• Representative Mimi Walters, (R-Laguna Niguel, CD-45)

A copy of the letter is available here.

In the event that a prompt BLM reconsideration is not forthcoming, the Company, in consultation with its partners, will pursue additional legal and administrative remedies to resolve the cloud on title created by the BLM guidance.

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