State to decide Yucca water case

Friday, Sept. 22, 2000 | 11:06 a.m.

Nevada won a major victory Thursday in the battle to keep highly radioactive waste from being stored at Yucca Mountain when a federal judge tossed a key decision back to a state court.

A Nevada court will now decide whether the Department of Energy will be allowed to use ground water at Yucca Mountain to build and operate a proposed high-level nuclear waste repository.

On Thursday U.S. District Judge Roger Hunt refused to hear the DOE's challenge of the state's Feb. 2 denial of water rights for the project.

Nevada officials called Hunt's ruling a significant victory in the state's battle to keep highly radioactive waste stored at commercial reactors and federal weapons sites across the nation from coming to Yucca Mountain, 90 miles northwest of Las Vegas.

"That's tremendous news," said Deputy Attorney General Marta Adams, who argued the case for the state.

Yucca Mountain is the only site being studied to store the 77,000 tons of waste. If it is found scientifically suitable, a repository could open by 2010.

The DOE has temporary permission to use the ground water to study Yucca Mountain through March 2002, but sought permanent rights to use 430 acre-feet a year to build and operate a repository. An acre-foot is enough water to supply a family of four for a year.

Former state engineer Michael Turnipseed, in denying the DOE's request for the ground water earlier this year, cited threats to public health, safety and Nevada's tourism-based economy.

DOE officials said at the time that a lack of water rights would not stop a repository, only slow it down, because water could be trucked in to the site.

Hunt said in his Thursday decision that the DOE did not have a constitutional right to usurp state jurisdiction on water rights.

Hunt issued the ruling without hearing arguments.

He cited a 1990 court case in which the state challenged DOE's temporary water rights, arguing that a nuclear waste repository was not an appropriate use for the land under state law.

Federal judges denied that challenge, ruling that the argument was premature, because the temporary rights were for study of the mountain, not a nuclear repository. The court said the state had to follow its own guidelines in issuing or denying permission.

The state law still has not been pre-empted, Hunt said, and the state is within its rights to deny the water now that DOE is seeking permission for a repository.

Hunt noted that Congress has not authorized a repository, and the DOE does not even own the land where it seeks water rights. The Bureau of Land Management and the Air Force own Yucca Mountain and the surrounding area.

He did not indicate whether congressional action or a change in ownership would affect a future ruling.

Hunt said that the DOE's argument that the ground water case is governed by federal laws does not stand. "It arises out of state water law, to which Congress has historically deferred," the judge wrote.

Adams agreed. "It was always our position that it was under state law and the federal government needed to pursue its remedies under state law," she said. "This means they're going to have to pursue it in state court."

Adams said the DOE could appeal Hunt's decision to send the ground water case to federal court.

DOE officials had not seen the ruling.

"We have no comment until we have had an opportunity to review the decision," DOE's Yucca Mountain Project spokeswoman Gayle Fisher said.

Robert Loux, executive director of the Nevada Agency for Nuclear Projects, said the state had argued that granting permanent water rights was premature.

"That's what we have been arguing all along," Loux said. "The DOE has been raising a nonsensical constitutional argument."