PRICE — The fate of a proposed nuclear power plant — the first in Utah — turns on the ebb and flow of the Green River, where proponents of the project want to divert water to cool the plant's nuclear reactors.
For five days in a small courtroom in Price last week, Judge George Harmond — who once served on the Utah Board of Water Resources — listened to reasons why the decision to grant that water for the plant was within the law or, alternately, why it contravened the statute governing water allocations.
Ultimately, whatever the 7th District judge decides — he took the case under advisement and will issue a decision within 60 days — the loser in this contest is destined to appeal.
"As a river advocate, it bothers me that they admit the Colorado River is overallocated, that climate change is going to put more stress on the system, but that those are not reasons enough to deny a water right," said John Weisheit of Moab-based Living Rivers.
That group is among more than a dozen plaintiffs who have sued to overturn Utah state engineer Kent Jones' decision to allow Blue Castle Holdings to use 53,600 acre-feet of water from the Green River, a tributary of the Colorado River.
The so-far unused water belongs to the Kane County and San Juan County water conservancy districts and has been leased to Aaron Tilton's Blue Castle Holdings in a usage change approved by Jones after two years of review.
Tilton, CEO of Blue Castle Holdings, believes Jones did his job, and the decision will be upheld.
"The trial has been going great," Tilton said near the end of the proceedings. "It further establishes the basis and the evidence that what we are doing is reasonable and that the decision was sound."
A Utah County conservative Republican who served in the Utah Legislature, Tilton is attractive and soft-spoken. He bridles with energy, determined to see his project through.
His foes have demonstrated a like-minded determination that rests in their zeal to quash the proposal, raising alarms over the danger of nuclear power and its radioactive ramifications, deriding the economic viability of the project and denouncing its deleterious effects on the Green River.
"We are more convinced than ever that the Green River nuclear reactors are a poor choice for Utah. They use too much water, they cost too much, would produce dangerous waste and pose too many risks," said Matt Pacenza, policy director for HEAL Utah.
He added that the trial clearly showed the folly of Jones' decision.
"I think we did a pretty good job in raising serious doubts about his decision on several fronts," Pacenza said.
Under state law, applications for water rights must be approved if it can be demonstrated to the state engineer that a number of factors have been met, including if the water is available from the source, if existing rights won't be impaired and if the project is financially feasible. Jones has said those requirements were clearly met and criticisms raised as part of the review process were weighed carefully.
During the trial, both sides trotted out witnesses to promote or excoriate nuclear power, its cost, its safety record and its environmental implications.
On Thursday, dueling water experts spoke to the effects that such a withdrawal from the Green River might pose. In one corner, the impacts could be life-changing for the Green River and the Colorado River drainage, impairing Utah's precious water resource in a state that is the second driest in the nation.
Charles Norris, testifying on behalf of the groups challenging Jones' decision, told the court that while the Green River may have available water now, there is no reason to think it would be available in the long term.
"Unless Utah can replace it, it better not be using it in perpetuity," he said.
Pacenza said Norris' testimony drove home something all Utahns should worry about concerning water — its fleeting behavior in the time of drought.
"I think we should all be concerned," he said. "This project uses a tremendous amount of water — enough for a city of 200,000 people. We live in a state that is growing quickly that is already the second driest in the nation and is entering a phase due to climate change where we are going to have less water."
But Blue Castle's attorney, David Wright, reminded the court that all of Utah's water users are depleting an amount that is well under the state's share of the Colorado River drainage.
Under questioning, he got Norris to concede that never in its history has the Green River fallen to such low flows that water had to be reduced for those owners with "junior" rights of a diminished priority.
Tilton likes to point out the water necessary for the power plant represents just 1 percent of the state's available water — a veritable drop in the bucket — but it will support a facility that will produce the equivalent of 50 percent of the state's power.
The water in question to be used by the power plant is owned by the two water districts, who have a timeline to prove it is being put to a "beneficial" use, or risk losing it. By leasing it to Blue Castle, the districts earn a financial windfall that can be used to shore up reserves for future projects of their own.
Panceza said there's the possibility that Tilton and his group will just "sit" on the water that's leased, waiting for the appropriate time and a friendly market for nuclear power while the Green River's needs go wanting.
Pacenza is the fly to Tilton's ointment.
A upstate New Yorker who once worked as an environmental reporter in Albany, Panceza is now a stay-at-home dad who has schooled himself in the art of relentless advocacy.
As HEAL Utah's policy director, he galvanizes grass-roots support to dog Tilton at public meetings, pepper residents with anti-nuclear signs and tells anyone who pauses to listen the horrors of nuclear power and its waste.
He insists that the project is an economic boondoggle built on a "house of cards" and says the testimony by the defense team's expert Thursday proved that point.
But Tilton's own expert took the stand to undermine the credibility of the HEAL witness, pointing out that an aberration in the data made one of its key points about "high" costs statistically unsound.
Robert Graber, Blue Castle's senior vice president and an energy economist, told the judge that the flawed data led to the HEAL witnesses' conclusion, which also had to be flawed.
Tilton said his foes can launch missives at his project over the finances but countered he wouldn't be on this long regulatory path if it was littered with funding potholes.
"We have put almost $18 million into it and keep spending money every month. If we didn't think it was going to work out, we wouldn't be doing that," Tilton said. "And a lot of these issues they keep bringing up shows it is more about a clear bias against nuclear power."
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