"The vast majority of our energy eggs are in a single basket, the fossil-fuel basket. We are trying to add new eggs to that basket," attorney David Wright told the judge in closing Blue Castle's water-rights case Friday. "You don't have to be a tree-hugging environmentalist to see that the fossil-fuel industry has come at a cost."
Harmond has 60 days to rule whether State Engineer Kent Jones made the right call in assigning 53,000 acre-feet of water to the Provo-based Blue Castle.
"I'll try to get it sooner," Harmond said, "but I have a lot to think about."
The water rights at issue have been held by San Juan and Kane county water districts since originally awarded in 1960s for a coal-fired plant that was never built.
The key questions are would the diversion needed to cool the reactor a continuous 70-cubic-feet-per-second (cfs) flow hurt the natural stream environment, displace public recreation or impinge on senior water rights? Could the project even be pulled off and serve the public interest?
The state failed to conduct the investigation necessary to answer these questions, argued attorney John Flitton, representing HEAL Utah, Living Rivers, Uranium Watch and local water users.
Under Utah water law, he said, the project should have some markets and funding lined up. Yet Blue Castle has raised just one-tenth of 1 percent of the estimated total cost and has yet to decide on the plant's type and size and who would operate it.
"They want to have the ability to not make decisions and keep holding this water in perpetuity and bank this early-site permit for 40 years," Flitton said. "Here is a valuable public resource that is not being developed. It is foreclosing others from putting it to some beneficial use."
The sorry record of proposed reactors getting permitted and financed over the past decade does not bode well for Blue Castle's project, he said. The only reactors under construction are being built by major public utilities that are expanding existing facilities in states that require ratepayers to absorb financial risks associated with nuclear power.
Worse, Flitton said, if the plant is built, its water consumption could wreak havoc on the river and those who rely on it.
Wright said the operating plan for Flaming Gorge Dam upstream will ensure adequate flows in the Green River to ensure adequate flows to sustain four species of endangered fish: razorback sucker; Colorado pikeminnow; humpback chub; and bonytail chub. The U.S. Fish and Wildlife Service recommends maintaining flows of at least 1,300 cfs, yet late summer flows already fall below that, according to Harold Tyus, a fisheries biologist at the University of Colorado and a leading expert on the Green.
There is very little spawning and nursery habitat on the river below the diversion, making what's left that much more important to the survival of the fish, he testified Thursday.
"We are not talking about guppies in a pond. These are endangered species that are federally protected," Flitton argued.
Blue Castle's fisheries expert, Thomas Hardy, had testified that the diversion would lower the river's level by 1.5 inches when the Green is experiencing its lowest flows, a change he regarded as having minal impact.
Tyus, however, said such a change would dewater half the downstream backwater habitat that native fish need for feeding and spawning.