MINUTES OF THE SENATE COMMITTEE ON NATURAL RESOURCES Sixty-eighth Session March 13, 1995 The Senate Committee on Natural Resources was called to order by Chairman Dean A. Rhoads, at 2:05 p.m., on Monday, March 13, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Dean A. Rhoads, Chairman Senator Lawrence E. Jacobsen, Vice Chairman Senator Mark A. James Senator John B. (Jack) Regan Senator O. C. Lee COMMITTEE MEMBERS ABSENT: Senator Mike McGinness, (Excused) Senator Ernest E. Adler, (Excused) STAFF MEMBERS PRESENT: Fred W. Welden, Chief Deputy Research Director Billie Brinkman, Committee Secretary OTHERS PRESENT: Albert E. Boardman, Administrative Services Bureau Chief, Wildlife Division, State Department of Conservation and Natural Resources Thomas A. Atkinson, Law Enforcement Bureau Chief, Wildlife Division, State Department of Conservation and Natural Resources Steven R. Albert, Wildlife Division, State Department of Conservation and Natural Resources Tom Bentz, Lobbyist, Executive Director, Nevada Animal Wise Use and Welfare Alliance Donnell J. Richards, State Board of Agriculture Michael Turnipseed, State Engineer, Division of Water Resources, State of Nevada Stephen J. Mahoney, Chief, Bureau of Brand Inspection, Agriculture Division, Department of Business and Industry Chairman Rhoads said he had received a request for a resolution concerning the visitors center at Hoover Dam. He explained utility companies in southern Nevada originally had agreed to contribute $32 million to update the visitors' center. Now, he said, the Bureau of Reclamation has already spent $120 million, and the utilities want assurance they will be liable for no more than $32 million according to the original agreement. He asked the committee to approve making a bill draft request (BDR) for a resolution on the matter. SENATOR REGAN MOVED FOR THE COMMITTEE TO SPONSOR A BILL DRAFT REQUEST REGARDING THE UTILITY COMPANIES' COMMITMENT TO THE HOOVER DAM VISITOR CENTER. SENATOR JACOBSEN SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS McGINNESS AND ADLER WERE ABSENT FOR THE VOTE.) * * * * * Chairman Rhoads opened the hearing on Senate Bill (S.B.) 174. SENATE BILL 174: Increases fee for issuance of certificates of ownership and number for transfer of ownership of certain motorboats. Albert E. Boardman, Administrative Services Bureau Chief, Wildlife Division, State Department of Conservation and Natural Resources, said S.B. 174 would revise the Nevada Revised Statutes (NRS) regarding transfers of title on boats. He drew attention to the proposed title transfer fee change from $5 to $15 shown on line 4. Mr. Boardman noted the fee had not been raised since 1977, although the fee for new titles was elevated to $15 during the last legislative session. He averred the fees would become consistent with passage of S.B. 174. Chairman Rhoads inquired how the fees in Nevada compare with those in other states. Mr. Boardman replied the fees are comparable, although Nevada is less than most of the other western states. He acknowledged the fee is included in the proposed budget and he estimated it will generate approximately $50,000 per annum. He said normally 5,500 to 5,800 titles are transferred each year. In the absence of further testimony, Chairman Rhoads closed the hearing on S.B. 174 and opened the hearing on Senate Bill (S.B.)175. SENATE BILL 175: Requires certain children to wear personal flotation devices while on board certain vessels. Thomas A. Atkinson, Law Enforcement Bureau Chief, Wildlife Division, State Department of Conservation and Natural Resources, testified the bill would require that a child under 13 wear a personal flotation device while under way on a vessel less than 26 feet in length. He pointed out there are exceptions for certain commercial vessels, such as the ferries on the Colorado River that transport passengers from the Nevada side to the Arizona side. Mr. Atkinson offered justification for the legislation based upon recognized need and desire. He included the National Marine Manufacturers' Association, the National Association of State Boating Law Administrators, the National Transportation Safety Board, the United States Coast Guard Auxiliary and power squadrons among those organizations in support of the measure. Mr. Atkinson said the aim of the legislation is to reduce water-related mortalities. He pointed out there is no legislation which requires that children entering the water from a boat must be trained to swim. He asserted reasonable parents should make an effort to protect their young children while on the water. He estimated 80 percent of water-related mortalities could be prevented by wearing life jackets. Mr. Atkinson related there are 19 states which have similar laws. Chairman Rhoads observed the measure would amount to an unfunded mandate. He remarked 2 years ago the Nevada Association of Counties (NACO) requested that no more unfunded mandates be passed by the Legislature. Chairman Rhoads pointed out the fiscal note on the bill states: This bill increases or newly provides for a term of imprisonment in a city or county jail or detention facility or makes release on probation therefrom less likely. Therefore local governments will incur all appurtenant costs of enforcement, prosecution and incarceration. Mr. Atkinson responded the bill provides that the crime will be a misdemeanor, the Division of Wildlife is the principal agency responsible for boating. He does not foresee a significant impact to government. Senator James voiced agreement with the comments made by Chairman Rhoads. He suggested the requirement should be made of everyone, even Olympic swimmers, in case the boat should capsize. He decried a situation in which it would be considered a crime for a youngster under 13 to be in a boat not wearing a life vest, but it would not be considered a crime for an older person who could not swim at all to be in a boat without a flotation device. Senator James questioned setting the age at 13 while California set the age at 6. Mr. Atkinson responded the American Academy of Pediatrics made various studies and made a decision based upon mental and physical abilities at that age. He reiterated the bill came about as a result of constituent requests. Senator James wanted to know specifically who had made such recommendations. Mr. Atkinson replied it had been addressed by a Las Vegas newspaper columnist, by the president of the Lake Mead boat owners association and by spokesmen for three power squadrons. He expressed hope some of those people would have conveyed their interests to members of the Legislature regarding S.B. 175. Chairman Rhoads announced he had received a telephone call from a retired Lieutenant Commander in the United States Coast Guard living in Las Vegas who supports S.B. 175. Senator Regan pointed out personal flotation devices are addressed under NRS 483.193 under which each motor boat in the state is mandated to have a flotation device. He said S.B. 175 would require parents to put those on children. He questioned lines 12 through 13 in the bill which would allow children to go without the devices if they are below decks. He averred the child would be in as much peril below decks as on top in an accident such as that at Lake Mead when the boat hit the wall. He concurred the law would mandate parental involvement. Mr. Atkinson explained the risk of falling into the water is significantly reduced if the child is below decks, just as there is a higher risk of someone falling overboard if the boat is under way than if it is moored at the dock. Senator Jacobsen questioned the reason why the law should only pertain to boats under 26 feet in length. Mr. Atkinson responded statistics indicate nearly 90 percent of those types of fatalities occur in smaller boats. He said there are 48,000 boats registered in the state, of which 93 or 94 percent are under 26 feet in length. Senator James questioned whether parents would put life jackets on their children after the law is passed. He also questioned the below decks exemption, the 26 foot exemption and the commercial exemption. He suggested children should wear the devices at all times. In the absence of further testimony, Chairman Rhoads closed the hearing on S.B. 175 and opened the hearing on Senate Bill (S.B.) 176. SENATE BILL 176: Revises provisions governing certain unlawful activities related to hunting, trapping, possession, sale or training of birds of prey. Mr. Atkinson introduced Steven R. Albert, Wildlife Division, State Department of Conservation and Natural Resources, who is responsible for the captive wildlife program for the state. Mr. Atkinson explained the intent of S.B. 176 is to allow the Wildlife Commission to adopt regulations which exempt license and permit requirements for certain birds of prey, and it would remove restrictions that prohibit the killing of rare and endangered species of birds of prey for certain reasons. Mr. Atkinson noted there are 422 birds that are classified as birds of prey, 60 are protected by the federal Migratory Bird Treaty Act, and of that 60 only 25 are found in Nevada. He said current law requires the Wildlife Division to license and permit all those species of birds whether they occur in the state or not, and whether they are covered by the Migratory Bird Treaty Act or not. Mr. Atkinson said S.B. 176 would allow the Wildlife Commission to exempt those species of predatory birds that have no significant impact on Nevada's wildlife. Mr. Atkinson called section 2, subsection 4, overly restrictive. He acknowledged there may be sound biological reasons for taking rare or endangered birds, and the present law prohibits doing so. Mr. Atkinson recounted there is wide support for allowing the Wildlife Commission the flexibility which would result from passage of S.B. 176. In response to a query by Senator Jacobsen, Mr. Atkinson said the bill would relate to vultures, eagles, hawks, falcons, kites and owls. He agreed with the senator that some of the birds that are protected have a significant depredating effect on game birds. Senator Regan inquired if there would be any change regarding the licensing of those involved in falconry. Mr. Atkinson declared the training for a falconer is under very specific regulations. He said the bill would exempt them from requiring a license when they have certain species that are not commonly used for falconry purposes, such as vultures. He added if the bird is exotic it could be exempted by commission regulation. Chairman Rhoads requested a list of the 25 birds of prey found in Nevada. Mr. Atkinson agreed to provide one later. Tom Bentz, Lobbyist, Executive Director, Nevada Animal Wise Use and Welfare Alliance, stated the falconers who belong to the alliance view S.B. 176 as a way to relax restrictions and make falconry laws function easier through regulation by the commission. He said the alliance supports S.B. 176. In the absence of further testimony, Chairman Rhoads closed the hearing on S.B. 176 and opened the work session. He asked the committee to refer to the work sheet (Exhibit C). He pointed out public testimony is not normally taken during work sessions, but he invited comment if anyone had new information for the committee. SENATE BILL 92: Provides for distribution of administrative fine imposed for violation of certain laws and regulations governing suppliers of water. Mr. Welden stated S.B. 92 would change the procedure for administrative fines for violations of regulations by water suppliers. He said the proposed amendments came from the Health Division Bureau of Health Protection Services. The first would change the wording from "state board of health" to "health division," and the second amendment would add "other nonprofit or public entity" after the word "organization." Chairman Rhoads asked if the fines collected for each day of violation had always been earmarked for education of water suppliers as indicated in the new language of the bill, and he asked if that is a federal mandate. Mr. Welden replied it has been traditional that fines in the environmental field be set aside for training or educational programs rather than have the funds allocated to the agency in order to prevent imposition of fines for use by the agency. Chairman Rhoads responded Senator McGinness had voiced concern over the matter. He requested that Mr. Welden find out where the funds from fines have been going before taking action on S.B. 92. SENATE BILL 97: Defines "subsisting right" to water livestock. Chairman Rhoads invited Donnell J. Richards, State Board of Agriculture, to comment on the two amendments proposed for S.B. 97. Mr. Richards, who ranches south of Winnemucca, said the addition of the word "vested" after the word "existing" on the first line resolved one of his concerns. Mr. Richards expressed concern over situations in which public land is evolving into private land, particularly where it is close to urbanizing areas. He called attention to the list of methods by which one could perfect water rights through section 1, subsection 1 (a) (1), (2) and (3). He asked why the same methods could not apply to section 1, subsection 1 (b) as to water rights on other privately owned land. He stated the open range is recognized as unfenced land, but he wondered if a problem arises where it is described as "fenced private lands." He explained: It's still considered as open range as to other private owners. Here we have an individual that is actually dumping cattle and does not have water rights, and/or this situation has occurred where an individual brought a bunch of cattle in and then another individual was watering his cattle for him with no water rights. Well, that individual who was watering the cattle applied to the state for a water permit, and that permit was in fact granted. Now this area had been previously adjudicated ... as a private allotment with the Bureau of Land Management (BLM), and the original owner of that allotment had adjudicated rights, certificated rights and vested rights. Now, that again, I understand, is a civil matter or between the individuals, but then there was a protest made to the state engineer and a hearing was held, and these items under ... [section 1, subsection] 1 (a) (1), (2), (3) were pointed out to the state engineer, and the hearings went against the individual rancher who had that allotment. Mr. Richards reiterated those concerns need answers. He proposed the items in section 1, subsection 1 (a) (1), (2), (3) be included under (b). He opined that would allow an individual to prove a previous BLM allotment. He stated the land in his narrative was private land, not public land. He added the same situation is occurring with another rancher. Michael Turnipseed, State Engineer, Division of Water Resources, State of Nevada, commented the language under the 1925 Stock Water Act was amended during the last session of the Legislature. He said: As to the different ways that you could evidence a pre-statutory water right to water livestock ... the method is outlined as to livestock watering under open range and then the method is outlined for livestock use on private land. For my particular purpose in an adjudication, I'm more interested in the number of cows and the type of animal, whether it be cows or sheep or horses or whatever they are, not necessarily whether they were all on federal land or all on private land or a part on each. As far as I'm concerned, if he has the right to water 500 cows, he has the right to water 500 cows from any, each and all of the sources that are available to the cows. And I don't necessarily care whether they are in part on private land or public land. It's just a method by which you can show me the numbers, and the kinds, and date the priority back to 1905 in case of surface water or 1939 in case of groundwater. Chairman Rhoads suggested the way the law is presently written or if it is changed through passage of S.B. 97, a person has no right to dump his livestock without an existing water right. Mr. Turnipseed agreed on both counts. Mr. Richards reiterated: This area had been adjudicated and that was pointed out to the state engineer, that as in a private allotment it was adjudicated as to the number of cattle to be run, and what was happening, and is happening to this other individual now, is that this person will dump - in my case it was about 2,000 head of cattle in an area that should run about 200 head, so we're running into a situation where they're overgrazing the area. Chairman Rhoads reiterated his opinion that had nothing to do with S.B. 97. Mr. Richards asked: If this, under (b) if as far as the state engineer is concerned, if it's private land, can he go back to the proof under the Taylor Grazing Service on either statements or licenses or statements of the priority of use? Chairman Rhoads acknowledged the language of the statute is old and no longer being used. Mr. Richards argued it applies in the case he cited because it is private land and in order to prove the right is in effect which has been adjudicated as to the number of cattle. He suggested the state engineer would be involved as to the verification of proof. Mr. Turnipseed responded the matter had not been adjudicated by his division regarding the number of livestock. He suggested the BLM may have had an allotment or it may have been another allotment with a specific number of animal unit months (AUMs) on the property. He surmised it may have then gone into private ownership and the lessor or rancher had dumped the cattle onto the land where the only violation had been the absence of stock watering rights, which the rancher then obtained through application. Mr. Turnipseed reiterated there had not been an adjudication of the water rights, there only may have been an adjudication of the land. He acknowledged he did not know what term was used by the BLM, but he did know the BLM has specific allotments as to how many head of cattle can run on the land. Chairman Rhoads repeated his suggestion they were discussing two different matters, and S.B. 97 was drafted to determine the existing valid right to water livestock. Mr. Richards continued to press his point that since it had become private land to be considered under (b), the statements under (a) should be allowed as evidence for proof in adjudication before the Department of the Interior, that is, the BLM. He posed an alternate by asking if (a) would cover the situation adequately. Mr. Turnipseed replied, "It does for my purposes." He said if the person has the water rights for 5,000 cattle, the rights for 5,000 head would remain. Mr. Welden said it had been brought to his attention by the attorney for the Division of Water Resources that the amendments should include the words "loss or abandonment or forfeiture." Senator James responded the traditional meaning of vested rights in the State of Nevada indicates a pre-statutory water right, which could only be lost through abandonment. He pointed out there is an annotation to NRS 533.085 which indicates vested rights may be both "pre-statutory and permitted rights." He opined forfeiture would apply if the right had been a permitted right. He noted under adjudication statutes vested rights are considered pre-statutory rights. Chairman Rhoads voiced support for passing the bill with the amendments outlined in Exhibit C. SENATOR REGAN MOVED TO AMEND AND DO PASS S.B. 97 AS PROPOSED. SENATOR JAMES SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS McGINNESS AND ADLER WERE ABSENT FOR THE VOTE.) * * * * * SENATE BILL 99: Revises definition of "domestic use" for purposes of statutes governing underground water and wells. Chairman Rhoads stated the list on lines 6 through 8 was not intended to be inclusive, thus it had been recommended during testimony that the words "but not limited to" be added on line 6 after the word "including." SENATOR JAMES MOVED TO AMEND AND DO PASS S.B. 99 WITH THE AMENDMENT CITED. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS McGINNESS AND ADLER WERE ABSENT FOR THE VOTE.) * * * * * Chairman Rhoads called for discussion and action on Senate Joint Resolution (S.J.R.) 7. SENATE JOINT RESOLUTION 7: Expresses support of Nevada Legislature for ranching and farming in Nevada and expresses its opposition to any extensive and unreasonable reform of existing regulations of Federal Government concerning management of public rangelands. Chairman Rhoads commented the measure applies to rangeland reform. He pointed out new wording for the "WHEREAS" clauses included on page 3 in Exhibit C. He recalled committee discussion of the measure and proposed amendments. SENATOR REGAN MOVED TO AMEND AND DO PASS S.J.R. 7 AS SET FORTH IN EXHIBIT C. SENATOR JAMES SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS McGINNESS AND ADLER WERE ABSENT FOR THE VOTE.) * * * * * The chairman called for discussion of Assembly Bill (A.B.) 68. ASSEMBLY BILL 68: Increases maximum reward for information leading to arrest and conviction of person engaged in stealing livestock. Chairman Rhoads reiterated his confusion as to why the legislation had to be enacted when the funding for the reward was provided by the cattlemen and the Nevada Farm Bureau. Stephen J. Mahoney, Chief, Bureau of Brand Inspection, Agriculture Division, Department of Business and Industry, responded the statutes require the legislation. He said the present statutory limitation for a reward is $500, which would be increased to $1,500 by A.B. 68. SENATOR REGAN MOVED TO DO PASS A.B. 68. SENATOR JACOBSEN SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS McGINNESS AND ADLER WERE ABSENT FOR THE VOTE.) * * * * * In the absence of further business before the committee, Chairman Rhoads adjourned the hearing at 3:00 p.m. RESPECTFULLY SUBMITTED: Judy Jacobs, Committee Secretary APPROVED BY: Senator Dean A. Rhoads, Chairman DATE: Senate Committee on Natural Resources March 13, 1995 Page