Can Nye County be compensated for damaged test site waters?

Decades of nuclear testing rendered both land and water at the former Nevada Test Site contaminated and therefore useless to the public. It’s a fact that cannot be contested but does this also mean the United States government should make restitution for the experiments conducted there?

The Nye County Water District believes so and its governing board is currently working to put pressure on the Nevada Dept. of Conservation and Natural Resources (DCNR) in an attempt to force forward movement on the issue.

During its meeting last month, the water board discussed the progress of its effort, which included the creation of a “white paper” by the district’s legal team, Schroeder Law. That white paper was forwarded to the DNCR and a follow-up letter was sent two months later.

“Essentially, this letter notifies the Nevada Dept. of Natural Resources and Conservation that we are compelling them [to act] – because according to our legal counsel, they have first bite at the apple as far as seeking damages for the people of the state of Nevada and the people of the county of Nye,” Nye County Water District General Manager Dann Weeks explained for the board on Dec. 10. “Should that state department choose not to pursue damages, their lack of action will authorize a second bite at the apple. That will be our legal team’s opportunity to pursue recovery for the damaged waters on the Nevada Test Site.”

Water board chair Ed Goedhart, who previously served as a Nevada assemblyman, noted that a pursuit for compensation for the contaminated waters had already been laid out in Nevada Assembly Joint Resolution No. 5 of the 2011 legislative session. That resolution urged the federal government to enter into negotiations for the remediation of the damaged resource. It passed both houses in the state and was signed by the governor but no response was ever received from the federal government.

“It’s something that has been ongoing for a while but we know that when you go after something like the federal government for potentially tens of millions of dollars, it’s going to be a long, hard, uphill battle,” Goedhart said.

Water board member Michael Lach chimed in as well.

“As Mr. Holden stated on the last item, he thought it was the single biggest issue that we’ve tackled so far,” Lach remarked, referring to the board’s proposal for a 2-1 relinquishment of water rights for new subdivisions, which was detailed in the Wednesday, Jan. 8 edition of the Pahrump Valley Times. “This one could be the single biggest issue, times 100.

“The issue isn’t, did they taint the water? That doesn’t have to be proven, that’s already documented, there is nobody who is going to claim that they didn’t. The question is, did they have a right to do that and do it in our backyard?” Lach continued. “We don’t have the ability to use that water anymore. And the idea that the federal government unilaterally decided they were going to be willy-nilly with throwing some nuclear stuff in the ground and not really protecting it… I think there is reason for us to move forward with this.”

He emphasized that Nye County making the first move to compel action by the DCNR could prove very important.

“Even though this (Nevada National Security Site) wholly lies in Nye County, the waters are owned by the state. So as soon as we initiate something, if it gets any legs, you’re going to see Clark County, you’re going to see Washoe County, you’re going to see these big counties jump on this. If we are at least out there first, it will help us keep some portion of whatever might come of this,” Lach stressed.

As detailed by the white paper, the water district outlines its belief that the contamination of the groundwater at the test site constitutes a violation of the Takings Clause of the Fifth Amendment of the U.S. Constitution.

“We also explained DCNR’s duty under the public trust doctrine to take action against the federal government to protect the state’s valuable groundwater resources,” the follow-up letter to the white paper read. “Finally, we explained the plight of Nye County, which is in desperate need of additional water resources to fulfill the needs of its residents. We again implore the DCNR to enforce the public’s interests and demand compensation from the federal government for the taking of its water resources and to assist Nye County in obtaining water to meet its current and future needs.”

The water district is required by law to notify the DNCR multiple times before it can be determined that the department is failing to act. After that determination is made, a report including a potential lawsuit and associated projected budget for such an action will be brought forward.

“That activity will come before this body for consideration on whether or not we really want to pull the trigger,” Weeks explained.

Contact reporter Robin Hebrock at rhebrock@pvtimes.com