MINUTES OF THE SENATE COMMITTEE ON NATURAL RESOURCES Sixty-eighth Session March 15, 1995 The Senate Committee on Natural Resources was called to order by Chairman Dean A. Rhoads, at 1:40 p.m., on Wednesday, March 15, 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 Mark A. James Senator Mike McGinness Senator John B. (Jack) Regan Senator O. C. Lee COMMITTEE MEMBERS ABSENT: Senator Ernest E. Adler (Excused) Senator Lawrence E. Jacobsen, Vice Chairman (Excused) STAFF MEMBERS PRESENT: Fred Welden, Chief Deputy Research Director, Legislative Counsel Bureau Brenda Erdoes, Legislative Counsel, Legislative Counsel Bureau Billie Brinkman, Committee Secretary OTHERS PRESENT: Jeff Fontaine, Supervisor of Public Health Engineering, Health Division Randy Pahl, Engineer, Division of Water Planning Mike Turnipseed, State Engineer, Division of Water Resources James Spoo, Attorney, Zeh, Spoo and Hearne Louis Thompson, Walker Lake Working Group Elsie Dupree, Lobbyist, Nevada Wildlife Federation Gordon DePaoli, Attorney, Walker River Irrigation District, and Sierra Pacific Power Company A. Brian Wallace, Chairman, Reno-Sparks Indian Colony Mike Baughman, Lobbyist, Humboldt River Basin Water Authority C. Joseph Guild, III, Lobbyist, Nevada Cattlemen's Association Pamela A. Wilcox, Administrator, Division of State Lands, State Department of Conservation and Natural Resources Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation Chairman Rhoads stated there was a bill draft request from the Grand Canyon Visibility Transport Commission concerning the clean air act. He said it is the same resolution that the Nevada Advisory Board on Natural Resources passed earlier. He said Lewis H. Dodgion, Administrator, Environmental Protection Division, State Department of Conservation and Natural Resources, suggested that the Senate also pass one and send it back to our congressional delegation. SENATOR REGAN MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST. SENATOR MCGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN WERE ABSENT FOR THE VOTE.) * * * * * Chairman Rhoads opened the hearing on Senate Bill (S.B.) 141 and Senate Bill 159. SENATE BILL 141: Revises provisions governing eligibility of certain purveyors of water to receive grants for making capital improvements to publicly owned water systems. (BDR 30-1093) SENATE BILL 159: Revises provisions governing eligibility of certain purveyors of water to receive grants for making capital improvements to publicly owned water systems. (BDR 30-997) Chairman Rhoads said he will hold Senate Bill 141 and Senate Bill 159 over for hearing on another day so that Senator Adler can be present when they are heard. Jeff Fontaine, Supervisor of Public Health Engineering, Health Division, testified both of the bills will increase the number of water systems that would be eligible to receive grants for making capital improvements which are required by either the Federal Safe Drinking Water Act or by the State Board of Health. He stated either bill would make public water systems (which were privately owned and for-profit) eligible for grants if they become publicly owned. He said there are a number of privately owned water systems that have become, or are contemplating becoming, publicly owned which need to make capital improvements to comply with the Federal Safe Drinking Water Act or State Board of Health requirements. He said the Health Division believes it is important to allow those systems to become eligible for grants and, therefore, would support either bill. Mr. Fontaine pointed out the Health Division has one concern about the way the bills are drafted, that being whether or not privately owned systems that are for-profit would actually be eligible for grants (or not be eligible for grants) until such time as they become publicly owned. Chairman Rhoads asked Mr. Fontaine if both bills need to be processed. He further asked what the differences are between the two bills. Mr. Fontaine replied both bills cover the same thing. Randy Pahl, Engineer, Division of Water Planning, testified his agency administers the grant program. He said, to date, 12 grants have been awarded for a total of about $13.1 million. He added six letters of intent have been approved. He explained the letter of intent is the first step in the application process. He asserted there is about $3.5 million earmarked for grants on those six projects. He pointed out approximately $16.6 million will have been committed over a 1-year period. He said the total authorization for the project is $25 million. He noted the first bond sale (1993) generated $7.9 million dollars, leaving the Division of Water Planning in need of another $8.7 million in bond funds to finance the 12 grants that have been awarded, plus the other six they are anticipating for the current year. He stated the remainder of the authorization ($8.4 million) will be used to fund all other projects that come before them. He stated either of the bills would increase the eligibility of several systems, and thereby increase the demand on available funds. He concluded the Division of Water Planning does support the passage of either of the bills. Senator McGinness asked Mr. Pahl when the first grant was awarded, and whether there is a cutoff period. Mr. Pahl said the grants were first awarded in early 1992, and are awarded on a first-come-first-served basis until the funds run out. Chairman Rhoads closed the hearing on Senate Bill 141 and Senate Bill 159, but stated another hearing will be scheduled so Senator Adler can comment on them. Chairman Rhoads opened the work session. SENATE BILL 93: Makes various changes relating to titling and recording of water rights. (BDR 48-982) Chairman Rhoads stated S.B. 93 was originally heard on February 20, 1995, and added there is an amendment attached to the work session document (Exhibit C) prepared by Fred Welden, Chief Deputy Research Director, Legislative Counsel Bureau. Brenda Erdoes, Legislative Counsel, Legislative Counsel Bureau, explained there is a proposed amendment (Exhibit D) which attempts to capture the intent of the committee in that first meeting plus certain additional items which have been worked out with the State Engineer's Office. She stated Exhibit E is what the bill will look like once it is amended and reprinted. Mike Turnipseed, State Engineer, Division of Water Resources, said he thinks the amendment accomplishes what the Division of Water Resources wants it to, and added it takes into account the concerns expressed at the February 20 meeting. Senator McGinness asserted the committee talked about changing "a person conveying a water right" to a "grantee conveying a water right." He said there was also some language about irrigation districts such as: "if the place of use is wholly or partly within an irrigation district." He said he does not see that language in the amendment, and feels it would be wise to review the amendment more carefully. Chairman Rhoads said the committee would skip Senate Bill 94 and Senate Bill 96, and move on to S.B. 98. He stated it is without amendment. SENATE BILL 98: Revises provisions governing approval by state engineer of application for permit to appropriate water. (BDR 48-989) SENATOR JAMES MOVED TO DO PASS S.B. 98. SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN WERE ABSENT FOR THE VOTE.) * * * * * SENATE BILL 168: Requires conveyance of certain state land to American Baptist Home Mission Society in exchange for certain transfers of land by Society. (BDR S-446) Chairman Rhoads said this bill has an amendment. Mr. Welden explained the amendment contained on page 5 of the work session handout (Exhibit C, Attachment B) was drafted by the Legal Division of the Legislative Counsel Bureau to accomplish the purposes of the Division of State Lands. He said there was some discussion during the hearing about whether to add some additional language of the type of that goes into deeds and conveyances. He said the Legal Division advised that was not consistent with the way they have previously drafted bills of this type. He concluded it would not hamper the Division of State Lands from including that language in their deeds; therefore, this amendment is appropriate. SENATOR REGAN MOVED TO AMEND AND DO PASS S.B. 168. SENATOR JAMES SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN WERE ABSENT FOR THE VOTE.) * * * * * SENATE BILL 177: Revises provision governing inspection of sheep and issuance of sheep permits. (BDR 50-880) SENATOR MCGINNESS MOVED TO DO PASS S.B. 177. SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN WERE ABSENT FOR THE VOTE.) * * * * * SENATE JOINT RESOLUTION 8: Urges Congress of United States to amend Endangered Species Act of 1973 to provide for consideration of economic impact of Act. (BDR R-1084) Mr. Welden explained that this bill deals with the Endangered Species Act of 1973. He said there was an effort to add some language about the economic impact of the act. He stated Senator Adler was asked to work with interested parties on possible language for the amendment. He referred the committee to page 7, of the work session handout (Exhibit C, Attachment C) where the proposed amendment is spelled out. He stated the amendment is supported by the Nevada Farm Bureau, and further stated the Sierra Club has expressed that they will not oppose the amendment. SENATOR LEE MOVED TO AMEND AND DO PASS SENATE JOINT RESOLUTION 8. SENATOR JAMES SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN WERE ABSENT FOR THE VOTE.) * * * * * SENATE JOINT RESOLUTION 10: Urges Congress to approve California-Nevada Interstate Compact. (BDR R-999) James Spoo, Attorney; Zeh, Spoo and Hearne; representing Mineral County on matters related to Walker Lake, presented the committee with written testimony (Exhibit F) expressing Mineral County's views on the California-Nevada Interstate Compact. Louis Thompson, Walker Lake Working Group, said they do not see a need at this time for Senate Joint Resolution (S.J.R.) 10. He said the issue of the Walker River basin waters is under review in Federal District Court C-125, and the current compact is based on the court decree. He insisted any new compact should reflect changes made in current litigation. He said the Walker Lake Working Group believes any action taken now would be premature and would be wasted effort. He remarked, however, if action is taken, they will support the amendments proposed by Mr. Spoo. Chairman Rhoads asked Mr. Thompson what he feels the danger would be in passing this resolution. Mr. Thompson replied if the Congress acts on the resolution and approves a compact, it would make it more difficult to make any internal changes in water distribution. He said they are particularly concerned with that issue in the language of the current compact. He reiterated if it is ratified by Congress, they will have a difficult time making changes internally. He said they want to see that litigation resolved before any compact is formed. Elsie Dupree, Lobbyist, Nevada Wildlife Federation, stated they support Mr. Spoo and the Walker Lake Working Group and oppose S.J.R. 10 for the reasons stated. Gordon DePaoli, Attorney, Walker River Irrigation District, and Sierra Pacific Power Company, said he agrees that the committee should not take action on S.J.R. 10 in its present form for a number of reasons. He said the California-Nevada Interstate Compact was negotiated over a long period of time, and includes an allocation of the Carson and Truckee rivers, Lake Tahoe, and the Walker River system. He said, as a result of the settlement that was worked out a few years ago through Senator Reid's efforts with Public Law 101-618, that statute includes an allocation of the waters of the Carson and Truckee rivers and Lake Tahoe which, when it becomes effective, would supersede the allocation in the old interstate compact. He said the allocation in those basins is very similar to what is in the interstate compact but, he said to urge the Congress to enact the compact that the Legislature enacted in the late 1960s or early 1970s, would, to a certain extent, suggest to the Congress that there is something wrong with Public Law 101-618. He stated he does not think that is what the Legislature wants to do. He said the interim study committee's report recognized that, and suggested that some consideration be given to the action necessary to create an interstate allocation on the Walker River system. He asserted S.J.R. 10, as proposed, does not accomplish that. He maintained there are a couple of things the committee could do here: 1) They could take no action and let the litigation run its course; or 2) They could revise the resolution into something that suggests that the director of the Department of Conservation (and his counterpart in California) give some attention to what should be done to finalize the interstate allocation without directing what the content of that allocation ought to be. He asserted the committee should not attempt to amend the compact in a vacuum. He said the whole thing has to be revisited in light of what is going on in 1995. He contended Nevada, California and the federal government need to negotiate an interstate compact and present it to the Legislatures of both states. He recommended the committee take no action on S.J.R. 10 in its present form, or else amend it to direct those concerned with water in the two states to examine the Walker River system, and evaluate what should be done. Chairman Rhoads asked Mr. DePaoli if he had seen Mr. Spoo's amendment. Mr. DePaoli answered in the affirmative. Chairman Rhoads asked Mr. DePaoli if Mr. Spoo's amendment is acceptable to him. Mr. DePaoli answered: No, and the reason it is not appropriate is that it actually proposes to amend the compact itself, and really all we are talking about here is not amending the compact. I am not sure you could amend the compact through a joint resolution anyhow, but that would probably have to be a legislation, which then would have to go back to California and then to Congress, and I know there are others who think that in 1995 there [are] provisions of the compact [that] may need revisiting. One of the major things that happened in the Truckee, Carson and Lake Tahoe portion of this is that the...what had been planned as an interstate commission to deal with compact issues, that no longer exists at all with respect to those systems and so there are a lot of things that I suspect will change, and now is really not the time to try to change them piecemeal. It really requires a careful look by both states, it seems to me, as to what this should be. Senator James stated the interim study committee heard abundant testimony about the Walker Lake problem, and the interstate allocation problems. He commented it is a difficult situation. He asserted he has no pride of authorship in this resolution and does not have any problem killing it, holding it, or whittling it out, but made the point that the committee needs to "get off the dime" on this issue. He said this bill concerns users at the lake, above the lake, and Nevada's relationship with California regarding interstate allocation of water. He said if there is something the Legislature can do to be of assistance in that process or to empower the state's water agencies to negotiate he would like to do it. Chairman Rhoads appointed Senator McGinness to work with the concerned entities to see if he can come up with something that will help. Senator McGinness accepted the appointment. Chairman Rhoads suggested that Senator James may want to assist Senator McGinness in that regard. SENATE JOINT RESOLUTION 11: Urges Congress to investigate utility of importing water to Nevada from sources outside Nevada. (BDR R-100) Chairman Rhoads said Assemblyman Joseph Dini, Jr., sponsor of Senate Joint Resolution (S.J.R.) 11, was not able to testify, so the committee will hold S.J.R. 11 over for hearing on another day. SENATE JOINT RESOLUTION 12: Urges federal government to adhere to states' laws governing use, allocation, management and protection of water. (BDR R-995) Chairman Rhoads said there is an amendment on page 8 of the work session handout (Exhibit C, Attachment D). Fred Welden, Chief Deputy Research Director, Legislative Counsel Bureau, explained that the amendment was proposed by A. Brian Wallace, Chairman, Reno-Sparks Indian Colony. He said the Legal Division of the Legislative Counsel Bureau indicated the amendment, after the words "federal government," where it reads, "nor to assert state primacy over water rights owned by Nevada tribes and their members" is vague, and since many court cases are pending relative to this issue, it may not be wise to include that which is not clear in the resolution. Chairman Rhoads asked Mr. Welden, "What if we end it there, at federal government." Mr. Welden said the Legislative Counsel Bureau is of the opinion that it would not do any damage. SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.J.R. 12 WITH THE AMENDMENT OFFERED BY THE RENO-SPARKS INDIAN COLONY MINUS THE LANGUAGE BEYOND THE WORDS "FEDERAL GOVERNMENT." SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN WERE ABSENT FOR THE VOTE) * * * * * SENATE BILL 96: Enacts provisions governing acquisition of water rights on public lands for purposes of watering livestock. (BDR 48-986) Mike Baughman, Lobbyist, Humboldt River Basin Water Authority (HRBWA), stated the committee has heard testimony from the HRBWA wherein they expressed concern over the consequences of adopting S.B. 96 as proposed, those consequences being the likelihood that all future applications or attempts to acquire or perfect stock water rights on public lands would be done solely in the name of the Bureau of Land Management (BLM) or the federal government. He said the HRBWA is concerned about the implications for private sector interests operating on those lands. He asserted the committee heard testimony indicating that it has been the policy of the state to encourage joint filings. He said there have been some cases of sole filings and cases where water rights had been certificated on the basis of beneficial use, in the BLMs name only. He said the HRBWA decided to examine the history of filings by the BLM and the certificates that they hold in an effort to understand the history as it may suggest where we may expect to go in the future. He presented the committee with a report (Exhibit G. Original on file in the Research Library.) which he said is a result of that investigation. He said the report had just been finished, and apologized for not getting it to the committee sooner. He highlighted several areas of the report for the committee. Chairman Rhoads asked Mr. Baughman when the 119 certificates were filed. Mr. Baughman replied, "...all through history, going way back." He referred Chairman Rhoads to Appendix B of Exhibit G, which he stated is a printout of all the certificates. Chairman Rhoads asked Mr. Baughman how many certificates have been filed for in the last 4 years for livestock watering purposes. Mr. Baughman replied he is not sure how many have been filed in the last 4 years, but said as of February, 1994, there were 22 applications filed. He said since then there have been about 13 additional applications filed. Chairman Rhoads asked Mr. Baughman how many certificates have been granted to the BLM in the last 2 years for the purpose of watering livestock. Mr. Baughman replied, in 1992 one certificate was issued, and in 1993 four certificates were issued in the sole name of the BLM for cattle and sheep watering. Mr. Baughman pointed out table 1, page 7, (Exhibit G) provides an outline of that information. Mr. Baughman also referred the committee to page 22 of Appendix B (Exhibit G) where he pointed out that application number 49649, certificate number 13415, asked for beneficial use for 1000 cattle, 100 antelope, 50 deer, 40 big horn sheep, 10 mountain lions, 10 bobcats, 20 coyotes, and many birds. He said the concern the HRBWA has expressed is that if S.B. 96 is approved, as proposed, it will codify filing by the BLM in their name only, one of the three ways included in the three-way system. He said the federal government has made it very clear, in their regulations, that in the future they will file in their name only. He said Mr. Turnipseed testified previously it is the state's policy to encourage joint filings. He added, however, the state has approved filings in the BLM's name alone for livestock watering beneficial use only. He said the HRBWA recommends that the state take this opportunity to elucidate its desire that whenever the BLM files (if they do file jointly) it be made a matter of state policy, and to amend S.B. 96 accordingly. Senator James commended Mr. Baughman for the work he put forth in compiling Exhibit G. He said Mr. Baughman's report enlightened the committee, and he expressed his regret that the information contained therein was not available to the interim study committee. He declared the committee is of one mind in that it wants to assert state primacy over water, and does not want to see that primacy eroded by continual federal appropriations. He insisted the federal government has overstepped its bounds by asserting dominion over the state's water rights. Senator James stated his reluctance, when Mr. Baughman originally testified, was based on a misapprehension that the BLM was not doing this. He said he did not know that the federal government could file for [the watering of] livestock when it did not own any livestock, but added Mr. Baughman has proven that beyond a reasonable doubt. Senator James said he feels the committee will have to support some type of amendment based on Exhibit G, unless the State Engineer can tell them differently. Chairman Rhoads said the committee will not take any action on the bill during this meeting. Mr. Welden said he will have an amendment drafted in final language for committee review. Chairman Rhoads appointed himself and Senator James to a subcommittee to further investigate the issues related to this bill. C. Joseph Guild, III, Lobbyist, Nevada Cattlemen's Association, testified the Nevada Cattlemen's Association has no objection to amending S.B. 96, but pointed out that the committee has not heard from the BLM on this matter. He drew attention to the BLM cattle numbers provided by Mr. Baughman in Exhibit G, saying he stopped counting at 25,000 head of cattle. He asserted the BLM apparently has permits for watering that livestock on public lands. He maintained his concern is related to the fact that the BLM does not own one cow in the state of Nevada as far as he knows. He stated: If, by adopting Mr. Baughman's proposed amendment, we are foreclosing ranchers in the state of Nevada from the opportunity of watering on the public lands 25,000 head of cattle, because the BLM may not permit livestock watering under a two-way* rather than a three-way system, then we are really kind of slapping the face of the hand that...with the wrong hand here, and this is my concern. I would like to know the answer to this question: would the BLM have permitted over 25,000 head of cattle to water on the public lands under a two-way system, and that is the only question I would like to see answered. If the answer is yes, under a two-way system, then great, have at it, let's do it, but if they say no, then it seems to me the ranchers are being shortchanged here and it just might be a hidden problem that we haven't completely found the answer to. Chairman Rhoads told Mr. Guild the committee will look into that issue. Senator James said: That, what you expressed, was my caution, initially; but I think...under this provision, it's to the extent allowed by the law of the state; they'll take it in their own name, and so what we were doing is restricting with the bill, as drafted, how that would be done...restricting the way in which the...or the circumstances under which, the federal government can take it in its own name, and we would just be restricting it a little further with this amendment...and, yeah, it's a given that the federal government does not own the livestock, somebody else is grazing it on its land by permit, and the question you are raising is whether or not...I guess it would be some kind of a retaliatory thing...or disability that is built in somewhere else that if they can't take it then they...because now the way it is with their proposed rangeland reform, they're agreeing that they only get to do it as much as state law allows. Mr. Guild stated: My concern is this, as I expressed it: if the answer to the question, 'Would you have permitted these livestock watering permits on the public lands under a two-way system, in other words would you, the BLM, have allowed, you know, over 25,000 head of cattle to be permitted on additional water sources, since whenever this started (Mike [Turnipseed] can answer that) in a system where you took title in conjunction with the operator?'... and the answer is yes to that, then I have no problem with Mr. Baughman's amendment. If the answer is 'no,' or 'maybe,' or 'we would have to take a look at that,' then it seems to me there's...and for whatever reason, and I'm not suggesting the BLM would be retaliatory in this regard...but I don't want to see a situation where we have reduced the livestock numbers or the capability on the public lands by 25,000 head if the BLM would not have gone ahead and allowed that extra use of the land in conjunction with a dual permitted certificated system with the operator. That's all I'm concerned about. I want to see livestock numbers expand in Nevada, not be reduced. So that's my concern. Mr. Turnipseed said he would like to clarify that he does not have any strong feelings whether it is a two- or three-way system; he thinks there are pros and cons with each. He referred the committee to Appendix B (Exhibit G) explaining that the sixth column from the left, labeled "SRC" refers to "source." He stated "UG" means "underground" and said the majority of certificates are issued for use of an underground water source. He said his concern is whether the application process will affect who drills and maintains the wells, and the effect it will have on long-term expansion of livestock use in the state. Chairman Rhoads asked Mr. Turnipseed: If the BLM does not own livestock, how come they are listed there to run cattle, because that is what they got water for when some of these (not made during your tenure)...the one permit you just referred to...they have 211 cattle and 60 deer, and they do not own any cattle. How do you work it, just because they are leasing land to run cattle on, therefore they can show beneficial use, is that how the water engineer looks at it? Mr. Turnipseed replied: Well, if you remember the Morros decision (Nevada v. Morros,) he didn't particularly care whose cattle they were; he was trying to treat the United States as fairly as any other appropriator, in other words, his ruling said that the United States is no different than a person as far as holding water rights in this state...they could hold the water rights for recreation...livestock watering... wildlife, any of those three, or even more probably...This is a result of that [ruling]. I probably told you wrong when I answered your question...'have we issued many permits, of late, only in the name of the BLM only for livestock watering.' The only way to tell the dates on here [Exhibit G]...it has a column for the date of the filing...keep in mind, prior to 1980, there aren't very many stock watering applications at all, now we are up into...well, he's [Mr. Baughman] added up 234 certificates, but I'm sure in permit stage or application stage, we have several hundred more, both in the name of the BLM, in the name of the operator, and... Chairman Rhoads said: Let me see if I have got this straight...the BLM could walk into your office today and file for a water right in Tuscarora area on public lands, and for 1,000 head of cattle, and you would have to...you could, if they showed beneficial use, you could give them a water right for 1,000 head of cattle. Mr. Turnipseed answered in the affirmative. He added he has no problem if the Legislature wants to change that. Pamela A. Wilcox, Administrator, Division of State Lands, State Department of Conservation and Natural Resources, testified she had a conversation last week with Bob Armstrong, Assistant Secretary, Division of Land and Minerals, at which time she expressed her concern that when Mr. Armstrong briefed the Governor he indicated that the federal agencies felt they had solved Nevada's problems with the regulations finally released. She said Mr. Armstrong was surprised when she told him that they had not and explained the problem Nevada still has. Chairman Rhoads asked Ms. Wilcox if it is not too late now, since the [Rangeland Reform] regulations go into effect on August 21, 1995. Ms. Wilcox replied she assumed they could legally amend them, but he is correct that they have been published. Chairman Rhoads asked Ms. Wilcox if they can amend a final draft. Ms. Wilcox reiterated she assumed a regulation could be amended at any time through legal procedures. Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation, stated the final rule says, "whatever the state law is, the federal government will follow it," so if the Legislature changes the state law, it can exact the desired outcome from a legislative prospective, and [the federal agencies], by their own rule, will follow what the state law requires. He said that if a rancher puts in a well it is considered a range improvement and under the final rule, the federal government will take ownership of it. He maintained the federal government will control not only the water, but also the ability to get the water out of the ground. He insisted it is critical that the committee take action, and expressed that the Nevada Farm Bureau wants to be involved in the process. Ms. Wilcox said: Senator, I don't have a magic answer to this except that it is clear to me that the federal government was attempting to respond to... their understanding of Nevada's problem...that there has been some miscommunication back and forth. I do not know how successful we will be in approaching them again at this point, but it certainly seems that the idea would have merit. While it is certainly true that we can change Nevada's law to say anything that you may wish it to say, we have to carefully think through what will happen thereafter. The concerns that have been expressed that we don't want to back BLM into a corner where they either refuse to develop additional water for wildlife, or, worse yet, decide that perhaps they want to start skirting around the edges of Nevada's water law, which has been our biggest concern from the beginning in working on this. I think we also have to be a little careful about equal protection of the laws...about writing statutes that apply to the BLM in a different way than the state water law applies to private owners. It is a fact that if you, on your private land, rented your pasture to someone else to run their livestock on, you could still prove beneficial use as a private landowner...I think there are many things we have to be careful of in trying to evaluate the best thing to put into statutory language. Mr. Turnipseed said the Rangeland Reform [regulations] contained a lot more items when it was originally drafted than it does today, including the increase of grazing fees. He said if the Legislature wants to tell him how to issue permits for livestock watering he has no problem with it as long as there are not indirect negative consequences, including some kind of federal legislation where they would just take control of their own water and not comply with state law at all. Chairman Rhoads said there is an area of concern brought up by Mr. Guild, in that the BLM already has a permit to water 25,000 head of livestock in the state of Nevada. He said his concern is that if the Legislature passes the two-way system it may prevent ranchers from watering those 25,000 cattle. Mr. Turnipseed said, "No. It would be difficult for this Legislature to apply the law retroactively." Chairman Rhoads asked Mr. Turnipseed what he feels the area of confrontation would be on August 21 when the regulations become effective. He further asked how the State Engineer's Office would do it differently. Mr. Turnipseed said if the Legislature adopts the two-way system, where the filing has to be either in the name of the rancher, or the rancher and the BLM jointly, he will take the existing applications, and any he receives thereafter, and abide by that law. Chairman Rhoads announced the committee will take a tour to examine the water situation in Clark County on March 31, 1995. He said Mr. Welden planned the tour in cooperation with Julie Wilcox, Assistant General Manager of the Southern Nevada Water Association. A. Brian Wallace, Chairman, Reno-Sparks Indian Colony, came forward to testify on S.J.R 12. He apologized for missing the hearing earlier in the meeting and thanked the committee for allowing him to testify out of order. He said he understands the committee adopted some language that was offered by the Reno-Sparks Indian Colony, but there seems to be a question as to the articulation of the state's attitude on primacy over Indian water resources on the reservation. He said he is curious as to the harm of leaving that language in the amendment. Chairman Rhoads said the committee and staff thought that it was unnecessary language; that the bill already said what they thought was meant, and they did not want to interfere with anything in the Indian rights or traditions, so they just decided to stop at that point. Mr. Wallace said he thought the language was not too thorny or uncomfortable, and, if it does not compromise the state's position on other issues [why not leave it in]. He said another thing he would like to bring up is the impact with regard to suggesting that the United States follow water regulatory and adjudicatory schemes. For example, if there are federal reserve rights which belong to the Indians or federal lands adjacent to Indian tribes, and the Indians are asked to (and do) comply with state laws relative to the justification for beneficial use applications allowed under federal standards, would [those rights] disappear, particularly [as it applies to] beneficial use related to in-stream values. He said that value is only recognized under federal principles and is somewhat consistent with tribal water resource uses because one of the tribal uses is "non-use." He stressed if the Indian tribes in the west were to fully adjudicate their water rights, there would not be much remaining for appropriation. He said one of the things that the western experience has benefitted from is tribal water management in a "non-use" sense, particularly when it comes to in-stream flow matters. He pointed out if an adjacent piece of federal property, which is not an Indian reservation, has to comply with state law, then the actual value of in-stream flows would disappear under state law. He said he understands that there is no beneficial use justification in the state water management regime for preservation of in-stream flows. He concluded the federal agencies have preserved that as a policy or doctrine, so there are other indirect reservation impacts such as fee interests, and state ownership issues. Chairman Rhoads asked Mr. Wallace to whom he would go on the reservation to get water. Mr. Wallace replied the Reno-Sparks Indian Colony follows the Winters Doctrine (the reserved water rights doctrine) which is applied by the federal scheme with relation to the establishment of federal reservations. Chairman Rhoads asked, "You don't go to the state?" Mr. Wallace replied that is correct. He added as a general rule, they view it as a reserve right under the Winters Doctrine. He urged the committee to consider restoring the remainder of the language in the proposed amendment. He said it would make the Reno-Sparks Indian Colony more comfortable and promote a better relationship between the state and tribal sectors. Chairman Rhoads said the committee will take a look at it. There being no further business before the committee, Chairman Rhoads adjourned the meeting at 2:55 p.m. RESPECTFULLY SUBMITTED: Linda Chapman, Committee Secretary APPROVED BY: Senator Dean A. Rhoads, Chairman DATE: Senate Committee on Natural Resources March 15, 1995 Page *A two-way system allows a rancher to apply for a water right independently or in conjunction with a federal land management agency. A three-way system allows a rancher to apply for a water right independently, a federal land management agency to apply independently, or the rancher and federal land management agency to apply in conjunction with each other.