SUMMARY--Revises provisions governing application for beneficial use of water. (BDR 48-1383)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to public water; revising provisions governing an application for the beneficial use of water; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 NRS 533.360 is hereby amended to read as follows:
533.3601. Except as otherwise provided in subsection 4, NRS 533.345 and subsection [3] 4 of NRS 533.370, when an application is filed in compliance with this chapter the state engineer shall, within 30 days, publish or cause to be published once a week for 4 consecutive weeks in a newspaper of general circulation and printed and published in the county where the water is sought to be appropriated, a notice of the application [,] which sets forth:
(a) That the application has been filed.
(b) The date of the filing.
(c) The name and address of the applicant.
(d) The name of the source from which the appropriation is to be made.
(e) The location of the place of diversion, described by legal subdivision or metes and bounds and by a physical description of that place of diversion.
(f) The purpose for which the water is to be appropriated.
The publisher shall add thereto the date of the first publication and the date of the last publication.
2. Except as otherwise provided in subsection 4, proof of publication must be filed within 30 days after the final day of publication. The state engineer shall pay for the publication from the application fee. If the application is canceled for any reason before publication, the state engineer shall return to the applicant that portion of the application fee collected for publication.
3. If the application is for a proposed well:
(a) In a county whose population is less than 400,000;
(b) For municipal, quasi-municipal or industrial use; and
(c) Whose reasonably expected rate of diversion is one-half cubic foot per second or more,
the applicant shall mail a copy of the notice of application to each owner of real property containing a domestic well that is within 2,500 feet of the proposed well, to his address as shown in the latest records of the county assessor. If there are not more than six such wells, notices must be sent to each owner by certified mail, return receipt requested. If there are more than six such wells, at least six notices must be sent to owners by certified mail, return receipt requested. The return receipts from these notices must be filed with the state engineer before he may consider the application.
4. The provisions of this section do not apply to an environmental permit.
Sec. 2 NRS 533.370 is hereby amended to read as follows:
533.3701. Except as otherwise provided in NRS 533.345, 533.371, 533.372 and 533.503 and this section, the state engineer shall approve an application submitted in proper form which contemplates the application of water to beneficial use if:
(a) The application is accompanied by the prescribed fees;
(b) The proposed use or change, if within an irrigation district, does not adversely affect the cost of water for other holders of water rights in the district or lessen the [district's] efficiency of the district in its delivery or use of water; and
(c) The applicant provides proof satisfactory to the state engineer of:
(1) His intention in good faith to construct any work necessary to apply the water to the intended beneficial use with reasonable diligence; and
(2) His financial ability and reasonable expectation actually to construct the work and apply the water to the intended beneficial use with reasonable diligence.
2. For the purposes of paragraph (b) of subsection 1, if the proposed use or change involves acquiring water that may be applied to another use without the approval of the state engineer, the use or change shall be deemed to affect adversely the cost of water for other holders of water rights in the district unless the person who acquires the water pays the operation and maintenance charges imposed by the district pursuant to NRS 539.513.
3. Except as otherwise provided in subsection [5,] 6, the state engineer shall [either] approve or reject each application within 1 year after the final date for filing protest. However:
(a) Action can be postponed by the state engineer upon written authorization to do so by the applicant or, in case of a protested application, by [both] the protestant and the applicant; and
(b) In areas where studies of water supplies are being made or where court actions are pending, the state engineer may withhold action until it is determined there is unappropriated water or the court action becomes final.
[3.] 4. Except as otherwise provided in subsection [5,] 6, where there is no unappropriated water in the proposed source of supply, or where its proposed use or change conflicts with existing rights, or threatens to prove detrimental to the public interest, the state engineer shall reject the application and refuse to issue the requested permit. Where a previous application for a similar use of water within the same basin has been rejected on these grounds, the new application may be denied without publication.
[4.] 5. If a hearing is held regarding an application, the decision of the state engineer must be in writing and include findings of fact, conclusions of law and a statement of the underlying facts supporting the findings of fact. The written decision may take the form of a transcription of an oral ruling. The rejection or approval of an application must be endorsed on a copy of the original application, and a record made of the endorsement in the records of the state engineer. The copy of the application so endorsed must be returned to the applicant. Except as otherwise provided in subsection [6,] 7, if the application is approved, the applicant may, on receipt thereof, proceed with the construction of the necessary works and take all steps required to apply the water to beneficial use and to perfect the proposed appropriation. If the application is rejected the applicant may take no steps toward the prosecution of the proposed work or the diversion and use of the public water so long as the rejection continues in force.
[5.] 6. The provisions of subsections 1 [, 2 and 3] to 4, inclusive, do not apply to an application for an environmental permit.
[6.] 7. The provisions of subsection [4] 5 do not authorize the recipient of an approved application to use any state land administered by the division of state lands of the state department of conservation and natural resources without the appropriate authorization for such a use from the state land registrar.
Sec. 3 NRS 534.270 is hereby amended to read as follows:
534.2701. Upon receipt of an application for a permit to operate a project, the state engineer shall endorse on the application the date it was received and keep a record of the application. He shall conduct an initial review of the application within 45 days after receipt of the application. If the state engineer determines in the initial review that the application is incomplete, he shall notify the applicant. The application is incomplete until the applicant files all the information requested in the application. The state engineer shall determine whether the application is correct within 180 days after receipt of a complete application. The state engineer may request additional information from the applicant. The state engineer may conduct such independent investigations as are necessary to determine whether the application should be approved or rejected.
2. If the application is determined to be complete and correct, the state engineer, within 30 days after such a determination or a longer period if requested by the applicant, shall cause notice of the application to be given once each week for 2 consecutive weeks in a newspaper of general circulation in the county or counties in which persons reside who could reasonably be expected to be affected by the project. The notice must state:
(a) The legal description of the location of the proposed project;
(b) A brief description of the proposed project including its capacity;
(c) That any person who may be adversely affected by the project may file a written protest with the state engineer within 30 days after the last publication of the notice;
(d) The date of the last publication;
(e) That the grounds for protesting the project are limited to whether the project would be in compliance with subsection 2 of NRS 534.250;
(f) The name of the applicant; and
(g) That a protest must:
(1) State the name and mailing address of the protester;
(2) Clearly set forth the reason why the permit should not be issued; and
(3) Be signed by the protester or the protester's agent or attorney.
3. A protest to a proposed project:
(a) May be made by any person who may be adversely affected by the project;
(b) Must be in writing;
(c) Must be filed with the state engineer within 30 days after the last publication of the notice;
(d) Must be upon a ground listed in subsection 2 of NRS 534.250;
(e) Must state the name and mailing address of the protester;
(f) Must clearly set forth the reason why the permit should not be issued; and
(g) Must be signed by the protester or the protester's agent or attorney.
4. Upon receipt of a protest, the state engineer shall advise the applicant by certified mail that a protest has been filed.
5. Upon receipt of a protest, or upon his own motion, the state engineer may hold a hearing. Not less than 30 days before the hearing, the state engineer shall send by certified mail notice of the hearing to the applicant and any person who filed a protest.
6. The state engineer shall [either] approve or deny each application within 1 year after the final date for filing a protest, unless he has received a written request from the applicant to postpone his decision or, in the case of a protested application, from [both] the protester and the applicant. The state engineer may delay action on the application pursuant to paragraph (b) of subsection [2] 3 of NRS 533.370.
7. Any person aggrieved by any decision of the state engineer made pursuant to subsection 6, may appeal that decision to the district court pursuant to NRS 533.450.
Sec. 4 NRS 538.171 is hereby amended to read as follows:
538.1711. The commission shall receive, protect and safeguard and hold in trust for the State of Nevada all water and water rights, and all other rights, interests or benefits in and to the waters described in NRS 538.041 to 538.251, inclusive, and to the power generated thereon, held by or which may accrue to the State of Nevada [under and by virtue of] pursuant to any Act of the Congress of the United States or any agreements, compacts or treaties to which the State of Nevada may become a party, or otherwise.
2. Except as otherwise provided in this subsection, applications for the original appropriation of such waters, or to change the place of diversion, manner of use or place of use of water covered by the original appropriation, must be made to the commission in accordance with the regulations of the commission. In considering such an application, the commission shall use the criteria set forth in subsection [3] 4 of NRS 533.370. The commission's action on the application constitutes the recommendation of the State of Nevada to the United States for the purposes of any federal action on the matter required by law. The provisions of this subsection do not apply to supplemental water.
3. The commission shall furnish to the state engineer a copy of all agreements entered into by the commission concerning the original appropriation and use of such waters. It shall also furnish to the state engineer any other information it possesses relating to the use of water from the Colorado River which the state engineer deems necessary to allow him to act on applications for permits for the subsequent appropriation of these waters after they fall within the jurisdiction of the state [engineer's jurisdiction.] engineer.
4. Notwithstanding any provision of chapter 533 of NRS, any original appropriation and use of the waters described in subsection 1 by the commission or by any entity to whom or with whom the commission has contracted the water is not subject to regulation by the state engineer.