Trial for protest of water for Green River nuclear power plant ongoing this week

By PATSY STODDARD Editor

The case, “HEAL Utah et al v. Blue Castle Holdings et al,” will be tried in front of Judge George Harmond in the Seventh District of Utah’s District Court. The trial is scheduled to begin on Sept. 23 and last until Monday, Sept. 30 at the courthouse.
The judge will hear arguments by the plantiffs who wish the two water right change applications granted to Blue Castle Holdings to be overturned and withdrawn. The two water right change applications for a proposed nuclear power plant near Green River, were approved by Kent Jones in January of 2012, State Engineer with the Utah Division of Water Rights. The decisions followed more than two years of study.
Kane County Water Conservancy District and San Juan County Water Conservancy District are leasing rights to Blue Castle Holdings. This company wants to use water from the Green River for a nuclear power plant. The request has raised many concerns such as the safety and oversight of nuclear power, local water use interference, wildlife concerns including endangered fish, over-appropriation of Colorado River water, the economic viability of the project, and the financial ability of Blue Castle to complete the project.
“We have listened to and very much appreciate the concerns raised by those in the local community and others,” said Jones. “Those concerns helped us look carefully and critically at the proposal as we considered the appropriate action on these applications.”
The water right approval criteria dictated in state law directs the state engineer to evaluate and investigate applications. An application is statutorily required to be approved if the state engineer believes: water is available from the source; the proposed use will not impair existing rights or interfere with the more beneficial use of water; the project is economically and physically feasible; it would not be detrimental to the public welfare; the applicant has the financial ability to complete the project; and, the application is filed in good faith and not for speculative or monopolistic purposes.
Almost 4.4 million acre-feet of water flows by the city of Green River every year. Blue Castle is seeking 53,600 acre-feet of that water to be allocated for its project. “That amount of water is not a lot on the Green River,” said Jones. “But it is a significant portion of the water Utah has left to develop on the Colorado River and a significant new diversion from the Green River where efforts are underway to provide habitat for recovery of endangered fish.” Approval of the application does not guarantee sufficient water will always be available from the river to operate the plant. Plant design will need to address the possibility of interruptions in water supply.
Nuclear power plants in the United States are developed and licensed for operation by the federal government under the regulation of the Nuclear Regulatory Commission, which is charged with promoting the use of nuclear energy to benefit public welfare and protect the radiological health and safety of the public. In pursuing NRC licensing of this project, Blue Castle plans to invest $100 million. Billions of dollars more will be required to construct the facility.
The state engineer’s decision on these applications authorizes the use of water for the plant after NRC approvals for the project are obtained. Prior to any construction, NRC will oversee an exhaustive design process to make certain the proposed site is safe for a nuclear power plant and the National Environmental Protection Act and Endangered Species Act requirements are complied with.
HEAL and fellow plaintiffs Uranium Watch, Living Rivers, and several Green River-area businesses and residents, will argue that State Engineer Kent Jones failed to uphold state law when he gave Blue Castle Holdings approval to take more than 53,000 acre feet of water from the Green River to cool a proposed nuclear power project.
The plaintiffs contend that Jones should have done much more in reviewing the water rights applications.
If the state’s water rights decision stands, Blue Castle Holdings will be free to apply to the federal U.S. Nuclear Regulatory Commission for a permit to site their nuclear reactors four miles northwest of the city of Green River.
On Jan. 20, 2012 the state engineer, Kent Jones approved the change application for both Kane and San Juan counties. This approval was protested by the plaintiffs and on Feb. 28, 2012 the state engineer denied the request for reconsideration of the approval of the change application.
The parties involved at that point had 30 days to file their protest with the courts. During the time from the original filing on March 30, 2009 until the change application was approved the opposing parties and groups have voiced their concerns with the project. They protested the change application citing broad impacts of the proposed change in water usage on their individual water rights, businesses or interests in maintaining a healthy river ecosystem and safe environment.
Emery County Economic Development Director Mike McCandless has been involved with the nuclear power plant project since the idea was first proposed, “I see a number of reasons why I do not believe the lawsuit will have merit in the courts. The primary reason is the long standing and well established processes for establishing and utilizing water rights in Utah were followed to the letter. Utah has a long and detailed history of how water rights are allocated. The courts and the legislature have, over the years, clarified this process to the point where the state engineer had a clear and defined path to follow in granting this point of diversion change. If the opponents to the power plant win, it goes against decades of established water rights process and subsequent court rulings.
“In addition, I think the plaintiffs in this case may not have standing in the court system. Only one of the plaintiffs appear to actually hold a valid water right. That water right holds a priority date that is above that of the nuclear plant. If there is a water shortage, that water rights holder gets their water first. End of story. That is what the point of diversion approval says, so, the plaintiff has no case or controversy. This is even weakened more, because the location that Blue Castle selected is downstream from this user and virtually every other user on the Green River. This was done to ensure that other valid and existing water rights were not affected.
“I just don’t see how the plaintiffs in this case can win the argument that they are adversely affected by the state engineer’s decision. They may not like the decision, but you have to have a case or controversy and standing to successfully appeal a water rights decision. I struggle to see how they have been directly harmed by the state’s actions. That is typically the standard that will be used in a court case,” said McCandless.