Seventh District Judge George Harmond found that Blue Castle Holdings presented enough evidence to show that the Utah State Engineer’s office followed the law when it approved two water rights applications for the project.
The judge’s Nov. 27 ruling came two months after he heard testimony in a Carbon County case that pitted HEAL Utah, Living Rivers and Uranium Watch against the Provo company and Utah State Engineer Kent Jones.
The plaintiffs sought to overturn Jones’ January 2012 ruling that allows the proposed Blue Castle Project to use 53,600-acre-feet – more than 1.74 billion gallons – of Green River water each year. They also asked the court to reject two change applications that transfer the water rights from two southern Utah water conservancy districts to the proposed site, which is located about four miles west of the town of Green River.
But Harmond ultimately ruled that the plaintiffs failed to offer testimony or evidence to back up their case.
Blue Castle Holdings CEO Aaron Tilton called the decision a major milestone for his company, noting that it lessens the risks that come with the development of a proposed nuclear power plant.
Without water, he said, there would be no project.
While there are still many more hurdles to overcome, Tilton said his company can now offer potential partners greater certainty that one key asset is in place.
Tilton was hardly surprised by the ruling.
“It’s something that we expected,” he said Dec. 4. “We believed all along that the state engineer did a thorough and sufficient job.”
But HEAL Utah Policy Director Matt Pacenza had an entirely different reaction after he read through the judge’s 26-page decision.
Pacenza said he believes the plaintiffs raised a number of very strong points for Harmond to consider.
Among other things, they alleged that Blue Castle Holdings failed to show its plan to build the 2,200- to 3,000-megawatt facility is physically or economically feasible.
The court should overturn Jones’ decision, according to the plaintiffs, because Blue Castle did not prove it has the financial wherewithal to finish the project.
In addition, the plaintiffs claimed Blue Castle did not demonstrate that its plans would not have an unreasonable impact on the natural stream environment, outdoor recreation or the public’s welfare.
But instead of considering those points, Pacenza believes the judge relied upon misleading evidence and testimony that the defense team introduced in court.
“I think that it’s a little confusing to say that all of the information presented by the defendants is solid, while all of the information presented by the plaintiffs is shaky,” Pacenza said Dec. 3.
In his ruling, Hammond sided with the defendants on every key issue that came up during the trial.
He found that the river contains more than enough water to accommodate the developer’s proposed diversions, based on historic readings from a Green River monitoring station.
The power plant would siphon 1.22 percent of the river’s annual mean volume, leading to a maximum projected drop of less than 1.5 inches in depth. The width of the river would shrink by about one foot, he ruled, noting that it spans about 350 feet from bank to bank.
Harmond also ruled that the applications cannot be rejected on the grounds that future diversions might affect anyone who owns higher-priority water rights. Most of those higher-priority rights are located upstream from the project site, he noted.
There are 16 points of diversion between the project site and the Green’s confluence with the Colorado River. Yet no one who holds those rights came forward in September to testify that they would be significantly impacted as a result of the developer’s proposed water usage, Harmond noted.
Likewise, he found that the plaintiffs failed to present any evidence that the plant’s water usage would impair beneficial uses downstream. Nor did they show that it would have any negative impacts on the natural stream environment or outdoor recreation, he ruled.
The judge also found that the company’s plans are economically feasible.
Blue Castle has shown that it has the ability to raise funding and capital as needed, has not borrowed any money to date, and has met all of its financial obligations, Hammond ruled.
At this early stage of the project, the company does not have to line up the estimated $15 billion to $20 billion needed to build a nuclear power plant, Harmond wrote.
It’s far from certain that Blue Castle will find the partners it needs to reach that stage. But its business plan shows the project, if built, will eventually be profitable, the judge wrote.
Hammond said he had reason to believe that the federal Nuclear Regulatory Commission (NRC) will conduct a stringent and compulsory review of any potential health, safety and environmental issues that could arise from the project.
“No matter what the State Engineer determines, if the environmental impacts cannot be satisfactorily resolved, the project will not be able to utilize the water rights,” Hammond wrote.
At this point, the company still has a long way to go before it completes that federal permitting phase of the project.
Tilton said Blue Castle is currently about halfway through its application-related work on the NRC’s Early Site Permit process. He estimates that the company won’t be ready to submit its application for another 12 to 18 months at the earliest.
In the meantime, Tilton said he isn’t anticipating any further legal challenges of the water rights applications.
“[The judge’s ruling] was very thorough, and there really is no basis that we can see for an appeal,” he said. “It would probably be a waste of time and money for them.”
Pacenza said he isn’t sure what the plaintiffs’ next course of action might be, since they barely had a chance to jointly review the judge’s ruling before the Thanksgiving holiday.
In the near future, though, they plan to sit down with their attorneys, HEAL Utah’s board of directors and others to discuss their options, he said.
Whatever decision is made, Pacenza said that opponents of the project will continue to make the case that the state should pursue alternatives to nuclear power.
“We’re all committed to fighting this project,” he said.