SUBCOMMITTEE MINUTES OF THE ASSEMBLY COMMITTEE ON NATURAL RESOURCES, AGRICULTURE AND MINING Sixty-eighth Session February 20, 1995 The SubCommittee on Natural Resources, Agriculture and Mining was called to order at 5:00 p.m., on Monday, February 20, 1995, Chairman John C. Carpenter presiding in Room 321 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. John C. Carpenter, Chairman Mrs. Marcia de Braga, Chairman Mr. Thomas A. Fettic Mr. P.M. Roy Neighbors Mr. Brian Sandoval COMMITTEE MEMBERS ABSENT: None GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: David S. Ziegler, Senior Research Analyst OTHERS PRESENT: Louis A. Lani, Lander, Sewer and Water II; Tony Tipton, Permittee-Rancher; Jerrie Tipton, Permittee-Rancher; Elsie Dupree, Nevada Wildlife Federation; Darrell Rasner, Nevada State Health Department. Chairman Carpenter called the meeting to order and requested the Secretary to note attendance. He informed the committee that, although one hearing had been accomplished on A.B. 10, it was deemed necessary to receive further testimony from other individuals involved, particularly the Forest Service. He said the purpose of the meeting was to discuss the nature of the bill, the impact of a proposed amendment, and a general discussion of the situation. Mr. Carpenter introduced a background memorandum prepared by Dave Ziegler, Research Analyst, which indicated counties and townships might be added to the bill. He went on to explain the present statute, passed in 1915, was written to exclude sheep from grazing around the area. It was amended in 1929 adding that water had to be owned by cities or municipalities. It did not apply to animals running at large upon the range. Therefore, if an individual had a cattle permit this statute would not apply unless there was a county ordinance to fence the area; and the fencing law in Nevada places the onus upon the property owner to fence the livestock out. The memorandum also indicated that in cooperation with the permittee, the Forest Service and the county, an area of about 400 acres was fenced off. Mr. Carpenter stated he felt the presence of the Forest Service in this sub- committee was desirable as there had been a running battle with them regarding water rights. He pointed out this year in Elko, Nevada, an individual had been brought to court and fined because he lacked a permit to put in a development. This individual had run a pipeline across Forest Service land resulting in what was subsequently entitled "The Kelly Spring Incident". Mr. Carpenter went on to state if an individual had vested water rights, meaning if the water was used before the Forest Service was in existence, a permit was not required to transport water across Forest Service land. He was uncertain as to their motivations but indicated various elements were involved. He suggested additions of a few counties, cities and General Improvement Districts (G.I.D.'s) to the bill. He stated livestock interests would not be agreeable to more restrictions than those already in the bill. On the other hand, other places had experienced cooperation with permittees, counties and agencies in fencing water developments. Mr. Carpenter requested suggestions from the Committee. There being none forthcoming, he asked Mr. Louis A. Lani, from Austin, Nevada, Lander County Sewer and Water II, to give a history, a critique and his impressions for the future on the situation. Mr. Lani stated on the original request for the change there was a problem on interpretation of ownership. Since that time, Mr. Tipton, the Forest Service and the county agreed upon fencing to protect the spring source. The county had passed an ordinance fencing one mile square beneath each of the two watersheds to keep out livestock. Mr. Lani explained he was not concerned about fencing the entire mile square in the Marshall Canyon area because he feels the cattle and sheep provide good fire protection to the back side of the town of Austin. He further stated if a quarter mile square of fencing, instead of one mile square, would protect the water sources the Board would agree. He had been informed a letter from the Forest Service was awaiting his signature stating all fees would be waived and the town of Austin would not be required to pay anything for their special use permit. The Forest Service had been told about the upcoming battle and were now agreeable to issuing a free special use permit. Assemblyman de Braga asked who had title to the water rights. Mr. Lani answered one legal source at the 318 District said they belonged to the county, but the water rights were listed to Lander County Sewer and Water II and some of them back in the 1874's were to the town of Austin. He assumed they belonged to Lander County because should District 318 falter, Lander County would step in and take over. Therefore, he supposed Lander County owned the water rights even though they were listed by several names. Ms. de Braga asked for a definition of the special use permit. Mr. Lani explained the special use permit consisted of a myriad of rules and regulations created by the Forest Service regarding care of the spring sources, some of which state responsibility for acts of God, with which he had a problem. Assemblyman Neighbors asked where the water was located. Mr. Lani indicated the spring sources were located two canyons directly above the town of Austin. Over Austin summit the canyon to the right was Pony Canyon where half the spring sources were located; and the next canyon to the south also had spring sources. Mr. Neighbors asked if it had to be pumped back up to the summit. Mr. Lani said it was brought down by gravity. A new well had been put in about one mile-and-a-half below town and in the summer time, due to lack of flow of the springs, they were supplementing approximately 60% of the water which was pumped up from the valley floor into the existing system. Mr. Neighbors asked if there was a pressure problem. Mr. Lani responded negatively stating there was static pressure on the water in the town of l20 PSI. Assemblyman Fettic queried if the county, or some entity of the county, owns the water. Mr. Lani responded affirmatively. Mr. Fettic asked if the Forest Service controls access to the water. Mr. Lani said this was addressed in the special use permit but the access roads have been going into the spring sources since the turn of the century. Mr. Fettic asked about the infrastructure getting the water from there to Austin. Mr. Lani said it was all by gravity and came down in pipelines across Forest Service land. He reiterated they had been informed of the requirement to have a special use permit and they had always operated under same. Mr. Fettic asked if there was a time limit on the special use permit. Mr. Lani indicated the time rules were changed year-to-year. Mr. Fettic expressed indignation at that answer. Mr. Carpenter stated that was the reason Elko had filed suit. He stated Lander County should take a stand asserting the fact a special use permit was not needed because they had a permit before the Forest Service was established. That permit was passed by Congress in an 1866 mining law but it seemed necessary to file suit every few years to put the Forest Service back on course. Mr. Neighbors expressed it was his impression the vested water rights were established in 1904. Mr. Darrell Rasner, State Health Division, was introduced to the Committee. He stated the bill, as they read it, was basically extending the authority for other entities to control the watershed, which was an excellent public health measure. He said he had not personally done a survey of the Lander County water system in about ten years and was unable to remember much about the system other than it was on a very steep hill with several spring sources in the canyons. The concern was if animals were in the area with no control over where they were grazing, there was potential for erosion run off of fecal matter, urine, etc. He felt if there were more control of the water resources it would ultimately save the cost of treating water after it was contaminated. Mr. Carpenter asked if samples of water were tested. Mr. Lani answered in the affirmative and said the water was treated with chlorine and the samples came back in good shape. Mr. Fettic stated if G.I.D.'s and unincorporated towns were covered by this bill it would be a positive health measure. However, he reiterated the special use permit was annual and revocable, meaning if the Forest Service decided tomorrow to close off the water they would be out of luck. The Chair recognized Mr. Tony Tipton, Permittee-Rancher, who indicated the bill affects many communities throughout the state, not only Austin. He felt the bill was originally introduced in 1915 to obtain better water quality and this was the motivation today. He indicated the Austin watershed was in poor shape. They captured very little of the water, which he found disturbing. He understood the health reasons for exclusion of livestock, however, that exclusion would not improve the watershed. In addition, the fencing of one square mile around the spring takes a great deal of his summer grazing country. He suggested doing what the Environmental Protection Agency (EPA) proposed several years ago which would take the watershed above and 100 feet below, with other provisions for diking around the water catch basin so other waters did not run into the spring. He indicated he would approve expansion on the ordinance passed by Lander County. He expressed concern about the quality of the watershed and would like to see it improved. At this time he said the town of Austin is proposing to drill into the mountain to find more water. He felt this was not the answer; the answer was to get a functioning watershed. He indicated Lander County and permittees held vested water rights since the 1800's. He stated fencing responsibility was shared with the Forest Service. His cattle had entered the fenced area due to individuals from the Water Department leaving the gate open. It disturbed him that he had no control over the acts of another individual for which he assumed liability. Mr. Carpenter explained the legislature is attempting to give control back to the County through their ordinance procedures so everyone in the community could have input. He discussed the mile square fencing indicating that the bill did not provide for that and legal counsel would be sought. He thought it provided for one mile within the watershed itself and below the stream source should not be a part of the watershed. He wondered if the Committee wished to change the law materially. He expressed difficulty in micro managing everything but some things had to be regulated. He felt other issues, such as dikes around the spring, would have to be left up to common sense. The Committee could consider a change in the one mile square fencing. The Chair recognized David Ziegler, Research Analyst, who asked Mr. Tipton to read the rule mentioning 100 feet below and so many feet above. Mr. Tipton indicated this rule was written in January 1991, from the Public Water Systems Design, Construction, Operation and Maintenance, out of the Division of Health in Carson City, page 21, listed under protection area, stating: "All land at elevations equal to or higher than and within 1000 horizontal feet of the spring source must be protected against establishment of concentrated sources of pollution." He indicated this rule was referring to waste. He went on to Section 2 which stated: "All land at elevations lower than and within 100 horizontal feet of the spring must also be protected. The elevation datum to be used is a point of water collection." Mr. Tipton expressed this was common sense, much more than one mile, one mile square, or one mile radius, depending upon how it is interpreted. He would like to see those parameters considered, rather than one mile. He asked if Mr. Ziegler knew where the point of diversion was on the old permits in Austin. He was told it went down to the meadow and, in that case, it continually kept expanding. It wasn't the current point of collection but he questioned where the limit would ultimately be. Mr. Ziegler responded those were proposed regulations still in draft form. Currently the only rule regarding protection was Nevada Administrative Code 445A.658 , which he read. He reiterated, a 100 foot minimum protected area to be maintained by the water supplier is required by the Health Division. Mr. Tipton asked if that meant 100 feet uphill. Mr. Ziegler responded affirmatively. Mr. Tipton queried if it included sewers. Mr. Ziegler said sewers were more stringent and this meant any form of pollution, which could be cattle or sheep. The Chair recognized Mr. Jeff Fontaine, Health Division, who cautioned against taking a cookie cutter approach to every similar situation in the state. What may be appropriate protection for the town of Austin may or may not be appropriate for another town in Nevada. Specifically with respect to what was happening in Austin, the Health Division had done a review of the springs in May of 1993 and at that time, based upon on site tests as well as subsequent samples that were analyzed from the springs, it was determined the springs were under the influence of surface water. It wasn't certain if the springs themselves were surface water or because of the construction of the springs there was surface water getting into them. As a result the town of Austin had proceeded to drill horizontal wells in an attempt to tap true spring water, meaning the water was coming directly from the ground and not being contaminated from the surface. He didn't know what the results of the horizontal wells had shown or if they were completed at this point in time. Mr. Fontaine indicated there were two issues: (1) if the springs were open reservoirs; and (2) if they were not open reservoirs and they were influenced by surface water, where was the surface water coming from. These issues had a bearing on how much protection was needed to protect the water source. Mr. Carpenter asked how long the fence had been in. Mr. Fontaine answered it was put in last June. He added if it turned out the spring sources were surface water, or surface water influenced, the town of Austin would be looking at additional treatment requirements. Mr. Carpenter requested questions from the Committee. Mr. Fettic responded and agreed with Mr. Fontaine regarding his cookie cutter allegory and stated the Committee could not solve the problem. After briefly summarizing the situation he suggested the Committee needed to make their decision on whether or not to include unincorporated towns and G.I.D.'s; and it was up the individuals involved to figure out how many feet, rods, miles, or whatever, it would take to satisfy it. Mr. Tipton asserted the one mile above problem needed clarification. It could mean one mile radius, which would mean one mile below and most water does not flow uphill -- it may flow towards money, but it doesn't flow uphill. Mr. Fettic reiterated the legislature's concern was whether or not to include unincorporated towns and G.I.D.'s, it was that simple. He understood their problems were not that simple, however. Mr. Carpenter declared the Committee could change the one mile aspect if they had good reason. Ms. de Braga asked what was specified in the ordinance. She maintained Austin was an unincorporated town and the County Commissioners had passed the ordinance under the existing law. She asked what were the provisions in the ordinance and was it followed exactly. Mr. Lani replied affirmatively stating the ordinance depicts one mile square around the spring sources and the given watersheds. There were two watersheds back-to-back and if both were to be fenced one mile square it would force Mr. Tipton to clear off a good portion of his range. Mr. Tipton again queried if it was one mile square or one mile radius. He was concerned if it was a one mile radius. Mr. Lani thought it was one mile square but was uncertain. Mr. Tipton asserted it was a county problem. Ms. de Braga asked Mr. Tipton how much range would be lost and were there alternate sources for watering his cattle and wildlife. Mr. Tipton said this was a loaded question because they have vested rights dating back to the 1800's. The portion of the watershed they fenced off was range lost to him. However, he felt giving up 400 acres was no problem because what was done to improve watersheds would probably have cattle on the watershed for manipulation purposes in the future after other things were worked out. A one mile radius would result in his losing one-third of his summer range. Mr. Carpenter asked if there had been a hearing in Austin when the ordinance was discussed. Mr. Lani said the first hearing had been held at Battle Mountain and the Forest Service was well represented. The Council wanted to know if they could work together. Mr. Lani said, speaking for the Board, if the Forest Service was willing to work with them they would not request the ordinance be passed. He reserved the right to return and request the ordinance be put into effect if the Forest Service refused to work with them. It turned out that was the case and the second hearing was advertised and held in the town of Austin. He indicated Mr. Tipton was at that hearing when the ordinance was passed. Mr. Tipton said he knew they talked about it that night but hadn't realized an ordinance was being passed. Mr. Lani clarified the ordinance had, indeed, been passed at that hearing. Mr. Tipton said he had not been aware of it. He indicated he had been there at one meeting, where he had some input, but had not seen anything since that time. Mr. Carpenter asked if there were any questions. Mr. Fettic had a question for Messrs. Fontaine and Rasner. He remarked the provisions would not apply unless the County Commissioners passed an ordinance, therefore, he assumed they enacted 638330 and said, "Okay, one mile." Was there anything magic about one mile? Was it safe, or as the Chair indicated, could it be somehow adjusted or amended to state within whatever distances are safe. Mr. Rasner answered there was no engineering basis for the mile. Mr. Fettic emphasized it could be set at 100 feet, 500 feet or twenty miles. The answer was if there were cattle above the watershed, and the creek or stream was being used, the mile didn't matter. They were up there and would contaminate the water. Mr. Fettic asserted if they were below it wouldn't matter if was within 50 feet. He stated maybe they should be looking at the mile. Mr. Carpenter stated he would like the County to have the power because they are the government closest to the people. He suggested the Committee might change the language of the bill to give them the power dependent upon conditions at the time. Mr. Lani suggested leaving the language the same but putting in a clause whereby the Commissioners would have the option to break it into areas rather than the mile square. In this way the statute would still be in place but the County Commissioners would have the right to cut it down to a smaller portion if needed. This would give the County flexibility in decisions made regarding these matters. A discussion ensued between Mr. Tipton and Mr. Carpenter regarding the running of cattle and herding of sheep and how those activities applied to the bill. Mr. Carpenter expressed that counties and any other government entities should be added to the language of the bill and suggested legal opinion should be sought. Mr. Ziegler wondered if this would change the state engineer's opinion because they prefer limiting language on cities and townships, and that sort of thing. Mr. Carpenter assured him that language would be retained, but counties will be added because many water rights are owned by the counties. Mr. Neighbors agreed local control should be maintained. He asked if there might be any existing health laws that would conflict with this change. Mr. Rasner answered there was guidance from the EPA referring to unfiltered water systems and/or surface water supplies where cattle grazing should not be allowed, but it is only guidance, not law or regulation, just common sense. Mr. Ziegler summarized the discussion by stating some element of local control should be added to the bill. He intended to talk to the bill drafters about appropriate language. After a brief discussion, Mr. Carpenter directed the language of the bill to give the decision regarding the area of the radius around the springs specifically with the County Commissioners so the cities would be required to come to them for an ordinance. Mr. Ziegler, Mr. Sandoval and the bill drafter were assigned the task to change the language of the bill. Mr. Carpenter asked for further discussion. There being none he adjourned the Committee at 5:30 p.m. RESPECTFULLY SUBMITTED: Pat Menath, Committee Secretary APPROVED BY: Assemblyman John C. Carpenter, Chairman Assemblyman Marcia de Braga, Chairman Assembly Committee on Natural Resources, Agriculture and Mining February 20, 1995 Page