Las Vegas Sun

March 28, 2024

State again denies DOE use of water for Yucca

CARSON CITY -- For a second time, state Engineer Hugh Ricci has denied the application to use water to build and operate Yucca Mountain, saying it would be "detrimental to the public interest."

Ricci's 15-page decision, signed Nov. 7, said the water for the project "would not be considered a beneficial use of the water that belongs to the public."

Ricci said Wednesday he expected the Energy Department to again challenge his ruling in the courts. So did Bob Loux, head of the state Office of Nuclear Projects, who said the Ricci ruling "confirms our position this water isn't in the public interest."

DOE spokesman Gayle Fisher confirmed that this morning, saying the Ricci decision will be appealed. But she said there is sufficient water available now to continue operations at the site.

The state engineer's decision, Loux said, preserves the status quo in the state's fight to stop the high-level nuclear dump from being built. The state has five suits in the U.S. Court of Appeals in Washington, D.C., and hearings are scheduled for Jan. 14.

Fisher said the department will wait for a decision on those cases before filing the appeal over water rights.

Gov. Kenny Guinn declined to comment.

Senior Deputy Attorney General Marta Adams, who has been handling the legal fight against Yucca, said she was happy with the ruling and expected an appeal.

She said there may be an agreement to stay the decision until the Appeals Court rules in Washington, but Loux said any ruling from the appeals court would probably go to the U.S. Supreme Court, no matter which side wins.

The Energy Department applied for use of 430 acre-feet of water. An acre-foot is enough to supply a family of four for a year.

The state engineer in February 2000 ruled against the applications, saying they were not in the public interest because of a law enacted by the Legislature that prohibits the storage of high-level nuclear waste in the state.

But that ruling was overturned by the courts, saying that was not a correct reason for denying the permit.

In his new ruling, Ricci cites Guinn's opposition to the location of the dump. He said there is a lack of science to support the suitability of the site.

Ricci said the governor's disapproval and the Legislature's resolution opposing Yucca Mountain "are a direct expression that it (Yucca) would threaten to prove detrimental to the public interest to grant use of the public's water ..." for the repository.

The Energy Department, in its application, suggested this was like any other industrial project that applied for water. But Ricci said a "nuclear waste repository does not fit into this definition of industry. The nuclear waste repository is in a class of its own."

Yucca Mountain is "unprecedented and unique," Ricci said.

In citing his reasons for denial, Ricci referred to the findings of the Nuclear Waste Technical Review Board, which found that "there was little doubt that science could not presently support the suitability of the Yucca Mountain site."

Ricci also cited the Nuclear Regulatory Commission, which identified 293 unresolved technical issues at Yucca Mountain. This included volcanic activity, seismic problems and the rapid groundwater flow through the area.

The state engineer said two of the criteria for defining the "public interest" in deciding on water applications are that all underground water belongs to the public and that this water must be appropriated for beneficial use.

There is "overwhelming opposition to the Yucca Mountain Nuclear Waste Repository," as demonstrated by Guinn's disapproval and the resolutions of the Legislature opposing the dump, Ricci said. This is a "clear indication that the water for the project "would not be considered a beneficial use of the water that belongs to the public of Nevada."

The state and the Energy Department have reached agreement for the use of water for sanitary and culinary -- but not construction -- purposes at the site.

The government had water in reserve to allow it to go forward with its continued investigation and preliminary work. It still must get a permit from the U.S. Nuclear Regulatory Commission.

The courts so far have not ruled that the federal Nuclear Waste Policy Act pre-empts state water law, Ricci noted.

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