Order No. 1197, issued by the state engineer last November, states any applications to appropriate additional underground water in Amargosa Valley within 25 miles of Devil's Hole, and applications to change the point of diversion of an existing ground water right to a point of diversion closer to Devil's Hole, will be denied.

There are exceptions for applications using two acre-feet of water per year or less and applications to change the place of use no more than a half-mile from the original point of diversion.

Language in order No. 1197 could affect future solar power projects proposed in Amargosa Valley. The order says that in projects that involve acquiring multiple existing water rights, the state engineer's office will compare the net impact to Devil's Hole.

Nye County, William Hernstadt, Michael DeLee and Rockview Dairies appealed that order to 5th District Court.

Nye County water attorney George Benesch, in a petition dated Dec. 3, 2008, wrote, "The order of the state engineer is arbitrary, capricious, an abuse of discretion, unreasonable and contrary to law."

Benesch added, "The proceedings and ultimate order of the state engineer violated petitioner's due process and other rights under the U.S. Constitution and Nevada Constitution."

The petition refers to order No. 5902 issued by the state engineer last November, in which 11 of 12 water applications seeking to move points of diversion closer to Devil's Hole were approved, based on a finding water levels in Devil's Hole were relatively stable over the last seven to eight years.

That ruling pointed out neither the protesting party nor the applicants were able to clearly demonstrate the effect of regional pumping on Devil's Hole water levels.