U.S. judge denies DOE request for Yucca water

Monday, March 17, 2003 | 11:28 a.m.

CARSON CITY -- A federal judge handed Nevada an apparent win over the Department of Energy in the fight over water for Yucca Mountain.

U.S. District Judge Roger Hunt rejected a request by the Department of Energy for the immediate right to 430 acre feet of water for construction and operation of a nuclear waste dump.

Hunt, in a ruling dated March 11, rejected several arguments from Department of Energy's lawyers and delayed the federal government's lawsuit from going further, pending the state's lawsuits filed to stop the dump.

Attorney General Brian Sandoval called it "a significant victory for Nevada in its fight to keep nuclear waste out of the state."

A Department of Energy spokesman today was unavailable for comment on the ruling.

The department filed suit after the state Engineer Hugh Ricci denied the federal government water rights to continue preparing the site.

The department argued that federal law preempted state law.

Hunt disagreed but ruled that Ricci needed to hold more hearings in the matter. Ricci denied the application noting the Legislature had enacted a law prohibiting a nuclear dump in Nevada. Hunt said he couldn't deny the water requested based on that alone. Senior Deputy Attorney General Marta Adams said today this was a "good ruling" for the state.

Adams said there are three items Ricci must consider -- if there is a conflict with existing water rights; if there is an adequate supply of water and if the granting of the rights will be detrimental to the public.

She said the state has more evidence now to present to Ricci showing the water rights would hurt the public, part of which is the release of radioactivity into the ground water.

The judge said the state engineer must make a decision on water rights based on evidence of economic or environmental impacts adverse to the state. He said "mere statements and opinions by state officials will not suffice" for Ricci to make a ruling.

"There must be evidence supplied by experts to substantiate any finding and conclusion by the state engineer," Hunt wrote.

Hunt said the Department of Energy believes the federal law and the resolution constitutes a finding of public interest that mandates the granting of the water right. But he said there is no language to that effect in either the resolution or the law.

He said he hopes the federal agency is not taking the position that the "public interest" of having a nuclear repository outweighs the safety of Nevada citizens.

The judge asked, "Is (the Department of Energy) contending its citizens do not have a right to the preservation of life if Congress has declared it has other interests?"

Sandoval said the argument of the "public interest" helps Nevada.

"The argument used by (the federal government) acknowledges that the 'public interest' includes public safety, specifically that of Nevada's citizens," he said. "In forwarding their argument, they underscore the very reason for our opposition to the proposal: the health, safety and welfare of Nevadans."

Benjamin Grove,

who covers Washington for the Sun, contributed to this report.