ENERGY/WATER RIGHTS
Yucca Mountain/Nevada

From the Newsletter of the Western States Water Council

On November 7, Nevada State Engineer Hugh Ricci denied applications for the use of water in operating the proposed Yucca Mountain nuclear waste repository. Mr. Ricci ruled that the proposed use was not deemed a beneficial use of water, and that it is also contrary to the public interest. An application to appropriate 430 acre-feet of ground water annually as a permanent water right was filed by the Department of Energy's Yucca Mountain Site Characterization Project Office (DOE) in 1997. In 2000, the State Engineer denied the application on the grounds that it would violate Nevada Revised Statute (NRS)459.910, which states, "It is unlawful for any person or governmental entity to store high level radioactive waste in Nevada." Approving water rights for such a facility would therefore prove detrimental to the public interest. Of note, the State Engineer did approve temporary water right permits for site characterization studies at Yucca Mountain. Those permits expired in April 2002, and a request for an extension was denied (WSW #1456). The facility is now using stored water.

DOE appealed the State Engineer's denial to the U.S. District Court of Nevada, which refused to interpret the state statutes at issue. DOE appealed to the U.S. Ninth Circuit Court, which in October 2001 directed the federal district court to rule on the merits of the case. On remand, in March 2003, the federal district court held that the State Engineer incorrectly relied on NRS 459.910 as a legislative determination and declaration of the public interest. Moreover, a review of the Nuclear Waste Policy Act (NWPA), under which the site was selected, and a Congressional override of Governor Kenny Guinn's veto of that siting decision are presently pending before the U.S. District of Columbia Circuit Court. NRS 459.910 as applied by the State Engineer amounted to a premature veto of the NWPA and "may not be invoked as what amounts to a 'veto' of the water application process" under NRS 533.370. The federal district court did not address the issue of the preemption of state law or the public interest -- nor cite any national interest -- but remanded the case for the State Engineer's review only under NRS 533.370 which outlines water right application considerations.

Besides finding the proposed use of water was not a beneficial use of publicly-owned water, NRS 533.370(3) prohibits the State Engineer from approving a permit where "the proposed use or change threatens to prove detrimental to the public interest." Given the strong opposition to the waste repository as evidenced by the Governor's veto (WSW #1459), and state legislative acts, Mr. Ricci reasons the proposed water use would clearly threaten to prove detrimental to the public interest. The full text can be found at http://water.nv.gov.