State engineer fears ‘chaos’ from high court water ruling

Depending on how it is interpreted, last week’s surprise water ruling by the Nevada Supreme Court could mean “chaos” for thousands of water rights awarded over a 55-year span, the state’s chief water regulator said Wednesday.

If the ruling winds up nullifying every application for water that took more than a year to be acted on by the state, as many as 14,500 water rights issued between 1947 and 2002 could be affected, Acting State Engineer Jason King warned.

“I can’t even fathom it,” King said. “There would just be so much litigation, it would be gridlock.”

Already the decision has touched off a tidal wave of paperwork at the state engineer’s office in Carson City.

Since the ruling was handed down Jan. 28, 200 new water rights applications have come in from across the state as water managers seek to guard against the potential fallout from the high court’s action.

That’s roughly 50 more applications than the state engineer typically sees in a month.

The new filings essentially duplicate earlier applications that were called into question by the Supreme Court because they were not acted on by the state within one year as the law requires.

Most of the filings from the past week came from the Southern Nevada Water Authority, which could be forced by the ruling to start over again as it seeks state permission to pump enough groundwater out of eastern Nevada to supply more than 250,000 Las Vegas Valley homes.

The authority refiled 86 of its pending applications on the day of the Supreme Court ruling and has added 35 more in the days since.

In their reversal of a lower court decision, the justices said Nevada law required the state engineer to act within one year on a massive 1989 filing that sought water rights for the Las Vegas Valley from across rural Clark, Lincoln and White Pine counties.

Instead, the applications weren’t considered until more than a decade later, after many people who initially protested them had died or moved away.

Though a law passed by the 2003 Legislature allows the state engineer to extend the hearing process for municipal use applications, the Supreme Court said that law applied only to filings submitted after July 1, 2002.

Ultimately, the justices left it to a rural District Court to decide whether the water authority should be required to repeat the state review process for its applications from 1989.

What King and others don’t yet know is how broadly the high court’s ruling will apply.

The flood of new filings is a direct result of that uncertainty, said water authority spokesman J.C. Davis.

“I think the phrase is 'an abundance of caution,’ ” Davis said.

“Prudent is probably a better word than caution,” said John Entsminger, deputy counsel for the authority.

Some of the applications refiled by the authority over the past week are for water rights that were granted and put to use years ago.

Entsminger said the most “high-profile” example of that is in Garnet Valley, better known to local residents as Apex. There, three power plants generate electricity for Southern Nevada with the help of cooling water from permits that were first applied for by the Las Vegas Valley Water District in 1989.

“I want to be clear: There’s nothing in the (Supreme Court’s) order that specifically says permits are implicated, but there’s also nothing that says they aren’t,” Entsminger said.

Late last week, Lincoln County and the private water marketing firm Vidler Water Co. filed 10 new applications of their own in four basins they have teamed up to develop.

On Monday, the Virgin Valley Water District, which serves the Mesquite area, filed 51 applications and Washoe County filed 18.

The state engineer’s office charges $300 per application, so the recent activity will mean $50,000 in revenue for the state’s general fund and $10,000 in revenue for the Nevada newspapers that will publish notices of the filings.

Those notices will trigger a 30-day period for individuals and organizations to lodge official protests of the water applications. Only those who file such protests — and pay the $25 fee — will be allowed to directly participate in any state hearings that might be held on the new filings.

King said the application fee and protest fee are set by state law and are not refundable in the event that the lower court decides the new round of filings was not necessary.

The state engineer and the water authority have about two more weeks to file a motion to have the state Supreme Court reconsider last week’s ruling.

King considers such a motion likely, if only to try to get the justices to clarify their decision.

“It just could have huge ramifications,” he said.

In the meantime, King’s staff is scrambling to process all of the filings from the past week.

Under Nevada law, the state engineer’s office has 30 days to look over each new application and send out a notice of its filing to be published in a newspaper.

Rick Lisle is the supervising engineer in charge of that initial review and notice process. He said staff members will have to be pulled off other assignments to help handle the recent flood of filings.

“Needless to say, we have a lot of work ahead of us,” Lisle said.

Contact reporter Henry Brean at hbrean@reviewjournal.com or 702-383-0350.