U.S. sues Nevada over Yucca water rights ban

Friday, March 3, 2000 | 11:20 a.m.

As expected, the U.S. government has filed suit contesting a Nevada decision that denies water rights needed to build and operate a Yucca Mountain high-level nuclear waste repository.

The lawsuit filed in U.S. District Court Thursday, the last day to appeal the decision, seeks to overturn state engineer Michael Turnipseed's ruling based on the Supremacy Clause in the U.S. Constitution, which grants the federal government authority over most state laws.

The federal government asked for the court to decide that the state's ruling is "arbitrary, capricious and an abuse of discretion."

The Department of Energy is studying Yucca Mountain, 90 miles northwest of Las Vegas, as the sole site in the nation to bury 77,000 tons of highly radioactive wastes from commercial reactors and defense activities during the Cold War.

A decision on whether the mountain passes scientific muster to contain the wastes for more than 10,000 years has not been made.

Turnipseed ruled last month that the DOE cannot claim a permanent right on 430 acre feet of water a year from five wells in Nye County.

The decision said building and operating a nuclear waste repository to handle and wash down containers filled with deadly wastes threatens the public interest of Nevada citizens. The project also is against state law, Turnipseed said.

The state engineer based his decision on Nevada's water law and a legislative ban on storing or burying nuclear waste within the state. The Legislature took the action after Congress in 1987 singled out Yucca Mountain as the only site in the nation to study as a repository.

Nevada's water law is one of the most comprehensive in the West because the resource belongs to the public and is protected for beneficial use.

The Nevada Agency for Nuclear Projects and Citizen Alert, a statewide environmental watchdog group, sided with the state's opposition to the Yucca repository based on Turnipseed's argument.

The federal government argues in its lawsuit that Turnipseed's decision is a roadblock to the will of Congress based on the 1982 Nuclear Waste Policy Act and its 1987 amendment.

Although Turnipseed rejected the DOE's request for a permanent water right, the agency has temporary use of the water for scientific studies at Yucca until March 2002. The state engineer issued the DOE a 10-year temporary permit in March 1992 to pump water from an existing well near Yucca for studying the site.

The Nevada Attorney General's Office expected the federal suit. "We are prepared to fight this," Deputy Attorney General Marta Adams said today from Carson City.

Nevada officials had said the contentious water issue would be appealed. Gov. Kenny Guinn, Sens. Harry Reid and Richard Bryan, both D-Nev., and Reps. Shelley Berkley, D-Nev., and Jim Gibbons, R-Nev., said the water ruling would go to court no matter what decision Turnipseed made.

The federal government had not filed an appeal in Nevada District Court in Tonopah as of this morning, the clerk's office said. State law also requires an appeal through the state court.

Mary Manning covers environmental issues for the Sun. She can be reached at (702) 259-4065or by e-mail at manning@lasvegassun.com