A complaint and petition for review of agency action was filed in the Seventh District Court for Emery County on Tuesday. Several groups and individuals were named as plaintiffs in the complaint and Kane County Water Conservancy District, Blue Castle Holdings and Kent L. Jones, state engineer were named as defendants. A corresponding complaint has been filed against the San Juan Water Conservancy District.
Kane County and San Juan counties water conservancy districts are the entities which have agreed to lease their water rights to Blue Castle Holdings the company which is representing the proposed nuclear power plant near Green River.
The change of applications for Kane County was filed on March 30, 2009 with the Utah State Division of Water Rights. This request asked for a change to the point of diversion of 29,600 acre feet of water to be used for the proposed nuclear power plant near Green River. The water rights held by Kane County were not being put to beneficial use. They were intended at one point to be used for a coal fired power plant which was never built.
Plaintiffs have initiated the judicial review in the courts to protect their interests in what they view is a complex, novel and potentially devastating project.
On Jan. 20 of this year 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, 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.
The plaintiffs have listed six cause of actions as to why they believe the change application should be repealed and denied. They list no unappropriated water in the source available to support the proposed diversion and use of water under the change application. The plaintiffs believe that the uses under the change application will interfere with the existing rights of the plaintiffs on the Green River. They list that the project is not physically or economically feasible. They believe there is insufficient evidence that the company will qualify for all necessary federal and state permits.
The plaintiffs believe the company hasn't demonstrated the plan is economically feasible and doubt the company's ability to complete the project due to lack of financial resources.
The plaintiffs listed the detrimental impact on the rivers natural environment and public welfare in their suit. There are four species of fish unique to the Colorado River system that call the Green River home and would be in danger should the nuclear power plant be constructed.
Plaintiffs in the complaint include: Heal Utah, Uranium Watch, Moki Mac River Expeditions, Bill and June Adams, Pamala Hackley, Norm Guice, Elfreda Mortensen, Living Waters, Kathryn Baker, Waid and Cheryl Reynolds, Lisa Rutherford, Paul Van Dam, Naomi Franklin, Kathleen Corr, Tom and Pamela Mooney, Center for Water Advocacy, Utah Rivers Council.
Emery County Economic Development Director Mike McCandless has been involved with the nuclear power plant project since the idea was first proposed, he had this to say about the complaint, "Ever since the application for the water was filed and the original public hearing was conducted, I have expected the opposition groups to file a lawsuit. I would expect that Blue Castle has expected this as well. In my opinion this appeal will not have a significant effect on the timing of the process.
"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.
Aaron Tilton from Blue Castle Holdings said this about the court filing, "We expected this as part of the process. It wasn't unexpected. Their filing doesn't change anything. There will be no change in our process. We are moving forward with the project.
"Things are going well. We are a year and a few months away from having the application ready to submit to the Nuclear Regulatory Commission. By next summer we will be submitting the early site permit. Currently seismic and geologic testing is ongoing and this will be a two year process. There are meetings with 40 of the top experts in the field.
"This extensive testing of a site hasn't been done in the Western United States. This level 3 review includes extensive and thorough site testing that hasn't been done in the Western United States before. This is new ground for the level of intensity with which this is being reviewed. This study will be complete by the end of this year or the first of next year. This is an independent third party process to determine the stability of the selected site by experts.
"We are also doing our own seismic investigations. We have taken core samples as far as one mile down to look at rock structure and to gather a 3D picture of the rocks to determine stability and other specifics.
"In regards to the water issue, we aren't worried at all. We feel that the state engineer has sided with us on this issue. We feel that two years worth of investigation and study was enough. We are on track and on schedule and we are financially secure. We are in great shape," said Tilton.