DOE files petition to keep water on at Yucca

Monday, March 18, 2002 | 10:57 a.m.

CARSON CITY -- The U.S. Energy Department has gone to court to stop the state from cutting off water at the proposed nuclear dump at Yucca Mountain on April 9.

In a petition filed in U.S. District Court in Las Vegas last week, the department said state Engineer Hugh Ricci's decision to refuse to extend temporary water permits contradicts state law.

Without water, the complaint said, the DOE won't be able to complete scientific studies to provide "a reasonable assurance that the public and the environment will be adequately protected from the hazards posed by high-level radioactive waste and spent nuclear fuel."

The Energy Department added the petition to a previous complaint challenging the state's denial of a permanent water supply at Yucca Mountain.

Senior Deputy Attorney General Marta Adams said the state will file its answer to both allegations on March 29. She said she would seek dismissal of the part of the complaint involving the temporary water permit.

The federal government maintained it would comply with state law and file its applications for water rights, Adams said. But when it was denied, it went to the federal court instead of the state courts, as is the normal procedure.

"There is a lawful process. But the government doesn't seem to be able to comply with it," she said.

The case is before U.S. District Judge Roger Hunt. No hearing has been set.

The department asks Hunt to stop the state from "unlawfully interfering with DOE's performance of its statutory obligations under the Nuclear Waste Policy Act and other federal laws."

The government wants to pump 430 acre-feet of water from the Fortymile Canyon-Jackass Flat Groundwater Basin in Nye County each year.

An acre-foot is enough water to supply a family of four for a year.

The state issued temporary permits in 1992 and 1994 to study the mountain. But Ricci refused to extend the temporary permits in February, after President Bush accepted the DOE's recommendation to build a permanent repository at Yucca Mountain.

The state engineer said the site characterization process was complete and the temporary water permits were no longer necessary.

Ricci said he would issue a cease and desist order to the government if it continued to use underground water after April 9.

The DOE's lawsuit seeks to stop Ricci. Blaine Welsh of the U.S. Department of Justice says in the suit that Hunt should order Ricci to issue an extension of the water rights so the Energy Department can comply with federal regulations.

The DOE says it needs to gather more information to prepare for licensing by the Nuclear Regulatory Commission. The suit said the state engineer may deny an application if there is no unappropriated water, if it conflicts with existing water rights and if the use of the water would prove detrimental to the public interest.

Former state Engineer Mike Turnipseed denied a permanent water right to the federal agency on grounds the nuclear dump would prove detrimental to the public interest. The Legislature has passed resolutions opposing the dump site.

The Energy Department says the denial of the continued use of the water will cripple dust suppression during excavation by tunnel boring machines and other excavating equipment.

In addition the water would be used for fire suppression, worker health and safety, environmental compliance and hydrological testing, the DOE says.

Hunt ruled in favor of the state in the DOE's first lawsuit over a permanent right. But the 9th U.S. Circuit Court of Appeals reversed the ruling and returned the case to Hunt's court to determine if the federal law supersedes the state law on water rights.