DOE vows battle over water use

WASHINGTON — The Department of Energy plans to go to the mat with Nevada over the disputed use of water at Yucca Mountain, the director of the federal nuclear waste project said Thursday.

The government probably will appeal an adverse ruling made late last month by U.S. District Judge Roger Hunt, said Ward Sproat, head of the Office of Civilian Radioactive Waste Management.

Meanwhile, Justice Department lawyers along with attorneys for the state are due back in Hunt’s courtroom in Las Vegas on Sept. 20 for a fresh round of arguments over water.

The state is trying to enforce a cease-and-desist order to stop the Energy Department from using water to drill test holes at the site 100 miles northwest of Las Vegas.

In an Aug. 31 ruling, Hunt upheld the state’s order but DOE maintained some drilling was exempt, and it has continued to work in certain sections of the site.

“There is a broader issue here,” Sproat said. “The broader issue is not geotechnical data. The broader issue is quite frankly, does the federal government have the right to withdraw water on federal land and on a project that was mandated by law by Congress.

“That is the issue and that is not going to get resolved in federal district court in Nevada,” Sproat said in a short interview outside a meeting at the Nuclear Regulatory Commission.

Government attorneys raised the federal supremacy argument before Hunt this summer. He rejected it, saying “there has been no act by Congress which pre-empts Nevada state water laws.”

Sproat said Nevada is using water as a tool against the Yucca project, which state leaders have fought for years.

“Obviously water is a big political issue out West and the state is doing what they think they need to do, to exercise their rights to try and impede the program,” Sproat said. “I can understand that but there is a bigger issue here.”

Marta Adams, Nevada senior deputy attorney general, said Hunt’s ruling “is going to be a tough order to appeal.” It involved a specific state cease-and-desist action, and not broader water rights issues, she said.

“It doesn’t really go to the heart,” Adams said.

Sproat declined to answer questions about the impact any drilling halt would have on the repository project, saying he was advised by Justice Department lawyers not to discuss it.

The Energy Department is collecting rock samples to analyze the earthquake and flood safety of large-scale industrial buildings it plans to construct to handle canisters of highly radioactive spent nuclear fuel.

The analysis would be incorporated into a repository license application DOE has said it will file with the NRC in June. DOE officials have said crews have drilled 56 holes out of 80 that were planned.

Water from wells near the site is used to cool and lubricate drill bits and to create mud for extracting core samples from rock layers.

“I have a pretty good idea of what we got and what we didn’t get” in the way of data from the holes already drilled, Sproat said.

“Some of them are nice to have and some of them are must-have,” Sproat said. “It is what the engineers need to fully understand and describe what is underground there.”

The issue of water rights at Yucca Mountain has been brewing since the late 1990s but largely on the back burner as Judge Hunt had declared the matter moot until the DOE could show significant progress.

In the meantime, Nevada state engineers have denied DOE applications for water uses beyond sanitation, firefighting and other emergencies.

The Energy Department has asked Congress to pass legislation that would broaden its powers to claim water from Nevada for the Yucca project. That proposal raised alarm bells in other Western states and has not advanced.

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