Nevada's state engineer has again rejected the federal government's application for water permits to build the Yucca Mountain high-level nuclear waste dump.
Former State Engineer Mike Turnipseed denied the applications for a total of 430 acre feet of water a year in February 2000, saying the applications were not in the public interest under a state law specifically making it unlawful to store high-level nuclear water in Nevada.
A federal district court in Las Vegas ruled the state engineer abused his discretion in relying on the law because it amounted to a veto of the water application process. The judge said neither the federal government nor the U.S. Ninth Circuit Court of Appeals had preempted Nevada's existing water law and directed the state to follow those statutes in ruling on the application.
He also said "mere statements and opinions by state officials will not suffice" as evidence.
State Engineer Hugh Ricci held additional hearings on the application and ruled this week that water in Nevada can only be appropriated for a "beneficial use."
He ruled there is "overwhelming opposition" to the Yucca Mountain project and cited the governor's opposition as well as the Legislative resolutions opposing the dump.
Ricci also made it clear that, contrary to what the federal court said, he believes it is up to the governor and Legislature to decide what is in the public's interest in Nevada.
"The people of the state of Nevada have spoken through their Legislature and governor that it is not in the public interest of the citizens of Nevada to use the water that belongs to that public for a purpose which is so adamantly opposed by the public," he said.
He said the opposition is based on the Department of Energy's "bad science, bad law and bad public policy." And he pointed out that even the Nuclear Waste Technical Review Board "found there was little doubt that the science could not presently support the suitability of the Yucca Mountain site."
Marta Adams, deputy attorney general defending the state's case, said the engineer's ruling is "certainly consistent with our view of what the public interest is."
Bob Loux, director of the Agency for Nuclear Projects, said he believes Ricci reached the correct conclusion.
"He arrived at that conclusion based primarily on the governor's executive powers and those of the Legislature in their public capacity," Loux said.
The Department of Energy needs the water to continue work preparing the Yucca Mountain site to receive 77,000 tons of radioactive waste. President George Bush approved Yucca Mountain almost immediately after receiving the recommendation, despite promises during his campaign that he would only do so after making sure the recommendation was based on "sound science."
Adams and Loux both said they expect the Department of Energy to appeal to federal district court but that the appeal would be put on hold while the Appeals Court in Washington, D.C., takes up arguments on the state's constitutional challenge of the decision to force the dump on Nevada.
Adams said hearings are scheduled in January on the state's constitutional challenge -- framing the issue as a violation of state's rights - and its challenge to how Department of Energy handled the entire process - changing its own rules repeatedly to make the site meet requirements despite the scientific evidence.
"The reality is the site is completely unsafe and DOE has not been able comply with its own rules basically since day one," she said.
Yucca Mountain is located 75 miles north of Las Vegas.