No one else in Utah not the governor, lawmakers or residents gets a vote on a proposed nuclear plant or veto power over it.
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Kent Jones has been chewing on the question now for more than two years.
He's heard from the developers who want to build a pair of nuclear reactors that would be cooled with water from the Green River. He's listened to the critics who insist nuclear anything is too risky for a Colorado River tributary and the people who rely on it, from melon farmers to regular Utahns worried about having enough water for their grandkids.
He's gotten the message from politicians that it might be time to add nuclear to the state's energy portfolio. He's taken heed of the lawyers' advice that whatever he decides must be able to stand up to a nearly certain legal challenge.
Jones is the state engineer, the guy with his hand on the master spigot for all the water Utah uses for drinking, farming and power generation. He is the only state-level official whose OK is make-or-break for the first commercial nuclear power plant proposed in Utah.
To him, deciding on the Blue Castle Holdings project is mostly clear-cut: His job is to check the request against tried-and-true water law. But he also can't help but see the big picture how his decision in the next few weeks might change Utah's future.
"What I'm trying to do here is what I'm required to do, what's necessary legally," says Jones, whose nearly bald head and tendency to listen thoughtfully rather than talk give him a certain Zen-like quality.
"People certainly need water and they need water to meet certain demands," he goes on to say. "But it is not a lot of fun to sit in the dark and drink your cup of water when you don't have your lights. So what is in the public interest here?"
Nowhere is the weightiness of Jones' nuclear question clearer than in the problem of the Central Utah Project. A $3 billion taxpayer-funded water system that has been a half-century in the making, the CUP brings drinking water to more than 600,000 people on the Wasatch Front.
But, under the principle that first in time is first in right, a cornerstone of Western water law, the nuclear power plant would be ahead of CUP in line if there were a shortage, because part of its water was spoken for a year before the CUP's.
Put another way, someday someone might have to decide which is more important: protecting drinking water for Utah's population center or keeping electricity flowing to customers and returns flowing to the investors who, it's expected, will pump more than $13 billion into the nuclear plant.
Though few think such a showdown is likely, it is conceivable. And it is one of the concerns that Jones has been asked to consider in his decision-making.
Said Wayne Pullan, of the U.S. Bureau of Reclamation: "He's going to have to have the wisdom of Solomon on this one."
Jones admits he has been cautious and he is no less so when asked which way he's leaning.
"We don't know where we're going to go yet," he says.
Blue Castle • The nuclear plant must have water to keep the reactors cool, just as coal- and gas-fired plants do. The Kane County Water Conservancy District has agreed to lease 29,600 acre-feet of water per year to Blue Castle. San Juan County has offered to lease 24,000 acre-feet. And Blue Castle would use all of it if Jones approves the water-rights change and the company is successful in licensing and building its 3,000 megawatt plant. None of the water would be returned to the river.
Aaron Tilton, the former state lawmaker behind Blue Castle, says the project meets all the state engineer's requirements.
"I don't see the state as a large issue," he says, noting that the project will also require a conditional use permit from Emery County and a license from the U. S. Nuclear Regulatory Commission, whose process is expected to cost about $100 million and take several years.
Tilton's team includes Jones' onetime boss, former State Engineer Jerry Olds, who retired after 37 years with the state just a few months before the water rights applications were made.
Olds and other members of the Blue Castle team have said in a variety of public forums including presentations before the state Legislature that the project will have very little impact on the Green River even in the driest years.
"On paper, the Upper Colorado River Basin is over-appropriated," Olds testified at a hearing nearly two years ago. "But still, as a state, we struggle to put all of our entitlement to use. This [nuclear plant] is an opportunity to use some of that water."
Blue Castle's calculations suggest in a normal year, when the river flows at around 1,300 cubic feet per second, the nuclear power plant will take just 1 percent of the water that flows past. Based on a low-flow year like 2002, the draw would be about 4 percent.
If there was an emergency, the plant has a number of options. It could draw from the 2,500 acre-foot reservoir that is planned at the plant site just west of the town of Green River. Or it could make arrangements to buy water from local farmers, like coal plants do in a water shortage.
"The amount of water needed for safety, to assure safety, is tiny," said Nick Zervos, a supervisor of thermal engineering for The Shaw Group who spoke at a forum in favor of Blue Castle and called it "inconceivable" that the Green River would be too low to provide cooling water. "There would never be a safety issue due to a lack of water."
Public input • More than 200 organizations and people have weighed in on the Utah application. Many of them have told the state engineer they're worried about water shortages, especially during severe droughts. The U.S. Fish and Wildlife Service, for instance, is concerned about four endangered fish species that rely on Green River flow patterns. Already, before any of the requested water is allocated, there are times the endangered fish don't get enough water, the agency wrote in March.
The service and its partners in the Upper Colorado River Endangered Fish Recovery Program including three states, two other federal agencies and seven water, power and environmental advocacy groups have entered a legal agreement aimed at restoring the endangered fish in the Colorado River and its tributaries, and that is one of the factors that Jones must weigh in his decision.
Meanwhile, researchers at the Bureau of Reclamation are trying to piece together the likely water scenarios in the Colorado's future. They're considering planned but undeveloped water projects as well as projections that global warming will mean 9 to 14 percent less water in the future but the results are not expected to be ready in time to figure into Jones' decision.
Pullan, deputy area manager for the bureau's Provo area office, said he has to consider the entire seven-state region that relies on Colorado River water. That includes guaranteed water deliveries expected in the lower basin states and their thirsty cities, including Phoenix, Las Vegas and Los Angeles and, CUP, of course.
"We are responsible for all of the water rights, for all of the users," said Pullan. "Because this was such a big change, and because the impacts aren't fully known, we decided to file a protest.
"We'd be concerned about any change that would cause our CUP rights to be shorted in dry years," he added. "We don't want these guys [behind the power plant] to butt in line in front of us."
An acre-foot is enough water to supply a suburban family's use for a year, and the 53,600 acre-feet the Blue Castle project intends to use is enough for about 230,000 people. So, the water the power plant would use is enough to serve all the residents of Salt Lake City and Draper combined.
Pullan, who was trained as an economist, agrees the underlying decision facing Jones is much bigger than simply the one about Blue Castle water, given the constraints on Western water.
"Do you want to spend water on power production," he said, "or do you want to spend it on growing cities?"
Utah Gov. Gary Herbert calls water the limiting factor for growth in Utah. He has remained uncommitted about the Blue Castle project even if he generally supports nuclear power.
"It's not just a matter of having water rights," he says of the project, "it's a matter of having adequate water rights."
Jones and his staff have briefed the Governor's Office on their Blue Castle deliberations, but Assistant State Engineer John Mann notes: "The Governor's Office has not requested a specific action. They are not attempting to direct this decision at all."
What debate? • Meanwhile, Herbert continues to call for a hearty debate on whether the time is right for nuclear power in Utah. It's a dialogue many Blue Castle critics doubt will ever really happen.
No one in Utah not Herbert, the Legislature, nor voters has any official say on, nor veto power over, the project. If the state engineer OKs the water right, the decision shifts to the federal Nuclear Regulatory Commission.
Moab-based Uranium Watch's Sarah Fields asks: "How do we get in on the debate, exactly?"
That's a question also being asked by Matt Pacenza, of the Healthy Environment Alliance of Utah. He notes that should Jones approve the water-right change, Utah becomes an outsider in the NRC's deliberations about the power plant's safety and suitability.
Under federal law, environmental questions on the project are entirely in the hands of the NRC. "If Gov. Herbert decides in two years this is a bad idea," Pacenza said, "it's too late."
John Weisheit, of the environmental group Living Rivers, along with the watchdog group Uranium Watch have registered their concerns about the effects the plant is likely to have even if there never is an accident.
"There is just no more water in the Colorado River," said Weisheit, a longtime river guide.
"It's not just a Utah deal," he said of a decision that will shape future energy development, which potentially includes the water-intensive development of oil shale and tar sands in eastern Utah.
"The big picture here is we need to look at this basin-wide. We can't look at this as just a Utah project. We're all in this together."
Three key decision points
State • The state engineer, who oversees water rights, is expected to decide in coming weeks whether to allow 53,600 acre-feet of water to be leased for the Blue Castle nuclear power project in Emery County. Once a ruling is made, objectors can seek a reconsideration by the engineer or go to state court.
Local • Emery County has already voted to support plans for the 3,000 megawatt nuclear plant. It must issue a conditional use permit before the project can move forward.
Federal • The U.S. Nuclear Regulatory Commission has authority over reactor licensing. Its years-long review weighs safety, environmental and financial questions. Although the NRC has not issued a new plant license since 1996, it has pending decisions on two reactor applications; it's still considering applications for another 10 plants and projecting six more applications, including one for Blue Castle's proposal in Utah, though 2013.
Kent Jones: Utah's decision maker
State Engineer Kent Jones doesn't need to look up the various parts of state law that apply to his decision about water for a nuclear power plant. He knows them by heart.
He must determine if a proposal: involves water that is not already spoken for; is feasible economically and physically; that proponents have the financial wherewithal to build their project; and that they are proposing to do so in good faith, "not for the purposes of speculation."
He also has to make sure the project will not impair existing rights, undermine the public welfare, harm public recreation, unreasonably affect the natural stream environment or interfere with the more beneficial use of the water.
Divvying up Colorado River water
Overall, 78 percent of Colorado River Basin water is used for agriculture and 22 percent is used to meet municipal and industrial needs.
Under a decades-old agreement, the lower-basin states receive yearly allocations: California, 4.4 million acre-feet; Arizona, 2.8 million; and Nevada, 300,000.
The upper-basin compact guarantees 50,000 to northern Arizona and divides the remaining water by state, with Colorado receiving 51.75 percent; New Mexico getting 11.25 percent; Wyoming, 14 percent; and Utah, 23 percent.
Utah's Colorado River allocation is around 1.4 million acre-feet. The state already has allocated 1 million acre-feet of that, including the 53,600 previously planned for coal-fired power projects in San Juan and Kane counties and now earmarked for the Blue Castle project.
Future projected uses of unappropriated water include the Ute tribe, 105,000 acre-feet; the Navajo tribe, 81,000; new agricultural uses, 25,000; new municipal and industrial uses, 5,000; and the Lake Powell pipeline, 98,000.
That leaves 98,000 acre-feet unallocated, according to the Utah Division of Water Resources.
Sources: National Geographic and the Utah Division of Water Resources.