MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
March 21, 2003
The Committee on Government Affairswas called to order at 8:13 a.m., on Friday, March 21, 2003. Chairman Mark Manendo presided in Room 3143 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Mark Manendo, Chairman
Mr. Kelvin Atkinson
Mr. Tom Collins
Mr. Pete Goicoechea
Mr. Tom Grady
Mr. Joe Hardy
Mr. Ron Knecht
Mrs. Ellen Koivisto
Mr. Bob McCleary
Ms. Valerie Weber
COMMITTEE MEMBERS ABSENT:
Mr. Chad Christensen (excused)
Ms. Peggy Pierce (excused)
Mr. Wendell P. Williams (excused)
GUEST LEGISLATORS PRESENT:
Assemblywoman Dawn Gibbons, Washoe County District No. 25
Assemblywoman Sharron E. Angle, Washoe County District No. 26
Assemblyman Don Gustavson, Washoe County District No. 30
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
JoAnn Aldrich, Committee Secretary
OTHERS PRESENT:
Terri Barber, Chief Legislative Advocate, City of Henderson, Nevada
Danny L. Thompson, Executive Secretary-Treasurer, Nevada AFL‑CIO (American Federation of Labor-Congress of Industrial Organizations)
Gary Wolff, Business Agent, Teamsters Local No.14, Nevada
Linda Lueck, Committee on Employment of People with Disabilities, Office of the Governor, State of Nevada
Warren Wish, Leader, 4-H Guide Dog Club, Carson City, Nevada
Darrien Horgan, student trainer, 4-H Guide Dog Club, Carson City
Myla Florence, State Department of Education, Training, and Rehabilitation
Theresa Shannon, resident, property owner, and private well owner, Mt. Rose/Galena area, and member of the public
Hugh Ricci, P.E., State Water Engineer, Division of Water Resources
Steve Walker, Truckee Meadows Water Authority (TMWA), Reno, Nevada
Andy Belanger, Management Analyst, Southern Nevada Water Authority and Las Vegas Valley Water District, Las Vegas, Nevada
Madelyn Shipman, District Attorney, Washoe County, Nevada
Kathy Bowling, resident of Callahan Ranch area near Mt. Rose Highway
Ginger Pierce, Pleasant Valley resident, and member of the public
Robert T. Cameron, former Chairman, Washoe County Citizens Advisory Board, and member for four years
Lori Bushey, Lemmon Valley resident and private domestic well owner
Assembly Bill 67: Revises Charter of City of Henderson to authorize City Council of City of Henderson to determine by ordinance which positions of city employment are included within system of civil service. (BDR S‑457)
Terri Barber, Chief Legislative Advocate, representing the City of Henderson, Nevada, came forward to testify. She stated that the City of Henderson sought to change the city charter to specify positions that would not be covered by civil service. The original bill would have granted authority to the Henderson City Council to specify those positions by ordinance.
Ms. Barber offered an amendment (Exhibit C). In Section 1 subsection 1, the amendment specified which positions would not be covered by the civil service system. Formerly excluded from civil service coverage were department heads, the City Clerk, the City Attorney, and the City Manager. The amendment would add to that list: Assistant City Managers, assistants to the City Manager, the Intergovernmental Relations Director, Assistant City Attorneys, and all employees of the City of Henderson reporting directly to an elected official.
Ms. Barber said that instead of giving authority to the city council to change the charter by ordinance, the City of Henderson specified the positions by title. Should they need to amend the list, the City of Henderson would need to apply again to the Legislature to do so. Ms. Barber said she met with representatives of the Teamsters, the AFL-CIO, and the Professional Firefighters of Nevada, and they all approved of the amendment.
Chairman Manendo asked, “What was the intent?” Ms. Barber answered that the intent was to give more flexibility to the city manager and to the council in managing employees who handled confidential information, so that they would serve “at-will.”
Assemblyman Collins said he thought that the City of Henderson already had the right to contract with an outside attorney like North Las Vegas did. He asked if the employees on the specified list were all full-time employees. Ms. Barber answered affirmatively. She added that the amendment would affect only those employees who were hired after the legislation passed. Current employees would be grandfathered in.
Danny Thompson, Nevada AFL-CIO, said that he had met with the City of Henderson and they supported the amendment. He stated that the proposed amendment would correct an existing problem, and that the City of Henderson needed flexibility to deal with that problem. A.B. 67, in its original form, was very broad, and the amendment narrowed the bill to solve a specific problem.
Gary Wolff, Teamsters Local 14, Las Vegas, stated that his organization had reviewed the amendment with the City of Las Vegas, and that they also supported it. Assemblyman Grady stated that in most cities, and in the case of the City of Henderson, employees reported to the City Manager, not to an elected official. Mr. Wolff said he understood that and just wanted to go on record supporting the amendment.
Chairman Manendo asked Ms. Barber to explain the difference between the Assistant City Managers and the Assistants to the City Manager. Ms. Barber explained that Assistant City Manager worked directly for the City Manager, was in charge of a department, and was next in line to become City Manager. The Assistants to the City Manager served at a different level. For example, in the City of Henderson the Assistant to the City Manager was a division head who supervised the Public Information Officer, Web site creation and maintenance, and other projects.
Chairman Manendo asked if anyone else wished to testify.
Mr. Wolff said that Mr. Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department, had asked him to convey to the Committee that Mr. Olsen supported the amendment.
Mr. Collins asked how many City of Henderson employees this amendment would affect and how many job positions would be declassified by the amendment. Ms. Barber counted the following employees:
2 Assistant City Managers
13 Department Heads
1 City Clerk
1 City Attorney
1 City Manager
1 Assistant to the City Manager
1 Intergovernmental Relations Director
8 Assistant City Attorneys (approximately)
1 Employee reporting directly to an Elected Official
Total: 29 Employees affected
Mr. Collins said that Las Vegas used to have 12 to 20 liaisons that would fit the classification of “employees reporting to an elected official.” Ms. Barber said that there were no liaisons to the city council working for the City of Henderson. Chairman Manendo asked Ms. Barber to submit a written list to the Committee for the record. [Ms. Barber provided Exhibit J on March 25, 2003.]
Chairman Manendo closed the hearing on A.B. 67.
ASSEMBLYMAN HARDY MOVED TO AMEND AND DO PASS A.B. 67.
ASSEMBLYMAN GRADY SECONDED THE MOTION.
THE MOTION PASSED AND MR. COLLINS VOTED NO. (Mr. Christensen, Ms. Pierce, and Mr. Williams were absent for the vote.)
Chairman Manendo assigned the bill to Mr. Hardy to present on the Floor.
Assembly Bill 332: Makes various changes relating to service animals. (BDR 38-1)
Chairman Manendo opened the hearing on A.B. 332. He noted that Assemblyman Morse Arberry Jr., Clark County District No. 7, was the primary sponsor of the bill. The Chairman invited Linda Lueck, who was testifying by videoconference from Las Vegas, to come forward and present the bill.
Linda Lueck, representing the Nevada Governor’s Committee on Employment of People with Disabilities, stated that she came to speak because she authored the first draft of the bill more than 2½ years ago. Ms. Lueck and Assemblyman Arberry tried unsuccessfully to have the bill considered at the last Legislative Session. In the interim, the bill was sent to the Legislative Counsel Bureau for redrafting. She had not seen the new draft of A.B. 332 until several days ago. Ms. Lueck said that the new draft of the bill had distorted the original proposal.
Ms. Lueck said that the proposal involved penalties for people who intentionally harassed, killed, or intimidated a service animal, and provided protection for service animals from attacks by other animals. She said there were cases in Las Vegas where visitors from out of town had their service dogs attacked, with no help available. The police said they could do nothing because there were no applicable laws, unless the animal attacked a person. By the time animal control appeared, there was nothing to be done.
Ms. Lueck said that a service animal was an extension of a disabled person, and that they were looking for responsibility and accountability. She had worked closely with Tom Ainsworth of Guide Dogs for the Blind in San Rafael, California, to compose the bill and to combine it with California penal codes and with existing Nevada law. In addition, Ms. Lueck had just discovered that someone else had duplicated that effort and drafted a similar bill that passed this week. She said a portion of A.B. 332 was identical to that bill.
The only remaining portion of her original bill was the part that would extend transportation access for puppy-handlers. Some airlines would not allow puppies in training to board with the handlers. She said that puppy trainers needed to include airline travel experience, rather than expecting a blind person to handle an inexperienced animal on its first airplane ride. She said access to transportation services was guaranteed by law for service animals in training, as well as to trained service dogs serving a disabled person. The problem was that the airline flying between Reno and Las Vegas refused to honor that law.
Ms. Lueck said she would prefer to bring the bill back to the Committee with an amendment. She offered to rewrite the proposal, delete the areas that had already passed in Senate Bill 231, and resubmit it as an amendment to include access for puppies in training.
Ms. Lueck said she had originally asked to have one section deleted entirely: the section specifying that the Department of Education, Training, and Rehabilitation (DETR) would be the sole provider of licensure and certification for professional trainers of service animals.
After researching the issue, Ms. Lueck said all agency personnel had told her that they never licensed or certified animal trainers. Even if authorized, they did not have the facilities or expertise to license or certify trainers. She said it was unfortunate, but when her initial proposal was rewritten, that section was enhanced instead of deleted. She said that neither DETR, nor Vocational Rehabilitation, nor anyone she talked to wanted that section included. Because stringent budget cuts were being proposed, Ms. Lueck realized that there was no place for this program in the proposed legislation. She had realized that the concept needed more investigation, more boards, and more planning to support such legislation. She added that she did not see a need for licensing and certification in Nevada, at this time.
Part of Ms. Lueck’s proposed amendment to A.B. 332 stated, “Persons who are seeking certifications or licensure as professional trainers of service dogs would first have to complete the training course and requirements outlined by the State of California.”
She said California had an extensive 3-year program of advanced education and testing for professional trainers. She said boards were already established to license, test, and recognize professional trainers. The reason she added the quoted line to the proposed amendment was because she had received many calls from people who wanted to be certified as a licensed trainer for advanced training of service animals. That would not include the 4-H program, puppy trainers, or programs that raised puppies to become service dogs.
For the benefit of the Committee, Ms. Lueck described the puppy selection process. She said that puppies were closely scrutinized, carefully bred, and selected, and the genetics were considered before the breeding took place in accredited schools. The puppies were then socialized and given to volunteers, 4-H Club members, and different puppy raising programs affiliated with the schools. Selected persons raised the puppies to around age 1½, depending on the maturity of the dog. The dog then returned to the school for 6 months of advanced training to become a guide dog, assistance dog, hearing dog, or another kind of service dog.
In the past few years, Ms. Lueck said some people who came to Nevada wanted to turn their German shepherd attack dogs into service dogs. One man told her he rescued German shepherd attack dogs and trained them to be service dogs for the elderly. She said that her dog was attacked three times by a service animal trained by a person with questionable training tactics, and the man had no background in training of service dogs. Ms. Lueck wanted to include language that would not encourage people from questionable backgrounds to operate in Nevada and put their dogs on the streets and in social settings which might endanger the public, the disabled, the elderly, and service dogs from accredited schools. She said that, if referring people to a training program in another state would present a problem, she would consider deleting that section.
Chairman Manendo asked if the folks signed up to testify could brief the Committee on service dog programs already in place in Carson City.
Ms. Lueck said the bottom line was that A.B. 332 was not the same bill she had written. The intent has been completely misconstrued, and she would like the opportunity to rewrite and amend it to match existing law. Some areas in the existing law should be deleted, such as the law that mandated having a “blaze orange leash” as proof of certification. This idea was promoted by a couple that manufactured blaze orange leashes and wanted more business.
Ms. Lueck said that a national certification program did not exist, nor a method of proving that a service animal would perform to a certain level for the owner, except by demonstration. Yet, a section of existing law stated that a person had the right to request certification of an animal, which would be in violation of the Americans with Disabilities Act. That wording also needed improvement, said Ms. Lueck. She said that the only way to verify the performance level of a service animal was to ask the owner what kind of services the animal performed for him.
Ms. Lueck said her desire was to enhance Nevada’s existing laws so that there was equal access for everyone who came from outside Nevada. She said she would be glad to take questions.
Chairman Manendo said that Committee members had received much correspondence on A.B. 332, and that there was still much work to do on the legislation. Ms. Lueck agreed. The Chairman asked if she had had the opportunity to go through the bill and write down any changes. He would like to have the bill amended quickly, because the Committee’s deadline was fast approaching.
Ms. Lueck said she received a copy of the bill on Tuesday and outlined suggested changes in a fax to Mr. Arberry, which she thought had been passed on to Chairman Manendo. She said she included questions and answers from the Department of Justice, to help the Committee see the big picture. Her desire was to synchronize Nevada law with California law, to bring Nevada law into compliance with federal law, and to improve some areas of Nevada law for puppy raisers. She said there were only four areas that needed to be addressed, and she would return to the Committee with a rewrite by the deadline the Chairman specified.
Chairman Manendo said that the deadline for moving bills out of the Assembly Committee on Government Affairs was April 11, 2003, so the amendment to A.B. 332 would need to be rewritten as soon as possible. Ms. Lueck said she could complete the rewrite by next week. The Chairman said that the deadlines were necessary because of the strict timeline for completing all legislative business within 120 days.
Chairman Manendo thanked Ms. Lueck for her testimony and asked if anyone else wished to speak in support of A.B. 332.
Danny Thompson, representing the Nevada AFL-CIO, said that he had an employee, Moshe Bialac, who used a service dog. Mr. Bialac had intended to testify (Exhibit D) from Las Vegas, but he was not feeling well enough today. Mr. Thompson said he held a retirement party at the Luxor Hotel for Mr. Bialac’s 165-pound Rottweiler, “Mojo,” and 300 people paid to attend.
Mr. Thompson said that Mr. Bialac needed his service dog to do his job, and that Section 9 of A.B. 332 should be reworded to allow him to continue working. Mojo’s large size enabled him to pull the wheelchair with Mr. Bialac in it, if the batteries died. He said that the unions, and machinists in particular, were very involved in the service dog program. In fact, trade unions had built Mr. Bialac an addition to his home to use as an office. Mr. Bialac’s concern with the bill was that it would not allow him, or anyone who could not afford an approved school, to train his own dog. Mr. Bialac told Mr. Thompson he would be willing to work with the Committee to fix this bill.
Chairman Manendo asked if Mr. Thompson would be in contact with Mr. Bialac to help them draft changes to the bill. Mr. Thompson said he would be glad to help.
Warren Wish, Leader of the 4-H Guide Dog Club in Carson City, came before the Committee to speak against the bill. Mr. Wish said that guide dog puppies had been raised in the Reno, Carson City, and Douglas County area for 25 years. He said there was a long tradition of service to communities by raising these special puppies for the benefit of disabled persons. Mr. Wish said they had serious concerns about Section 9 of A.B. 332, which addressed the licensing and bonding of those who train service animals.
Mr. Wish introduced six local puppy obedience-trainers and their dogs. Mr. Wish said that the trainers represented students and families who raised and trained the puppies in northern Nevada that would eventually be service dogs.
If A.B. 332 passed without amendment, Mr. Wish said that the trainers in the room today would have to be licensed and bonded, and they would be required to pay an annual fee, in order to continue their community service. Over the 1½ years they cared for the dogs, each family would pay at least $500 to $1000 to raise, feed, transport, and kennel their dog when females were in season, all of which they considered a donation to the cause. When the dog was about 1½ years old, the families would return the dogs to Guide Dogs for the Blind, in San Rafael, California, for advanced training. The dogs would be provided to blind individuals at no cost.
Mr. Wish said he supported Ms. Lueck’s testimony from Las Vegas. He felt that she recognized the concerns and understood how to enhance the training of the service dogs.
Mr. Wish did not support licensing and bonding of trainers because all of the student trainers present were teenagers. Because of their age, they were not eligible for bonding by the state of Nevada, so their service would be lost to the community. Adult trainers would need to pay an annual licensing fee, in addition to their other costs. Mr. Wish pointed out that they had a very fine program locally, and dedicated families throughout Nevada. There were currently 12 dogs being raised just in Carson City.
Mr. Wish asked Darrien Horgan, a student dog trainer, to explain to the Committee the “Halte” or “gentle leader” strap around the dogs’ faces. Darrien Horgan explained that the “Halte” on her dog’s face was a gentle way of leading them, directing them, and handling them, instead of yanking on their necks. She said they could still open their mouths, eat, and drink. Mr. Wish added that the Halte, sometimes called a “head harness,” had a calming effect on the dogs. Chairman Manendo asked Ms. Horgan how old she was and how long she had worked in that program. Ms. Horgan answered she was 14 years old and had been in the program for 3 years.
Assemblywoman Weber said she had a friend who had devoted ten years to training service dogs. She said that, when the dogs are matched with disabled owners, it gave the family great joy to see their dog with its companion. She said the trainers were accomplishing a great service in this work. She asked if these were the primary breeds used as guide dogs. Ms. Horgan said that primary breeds were golden retrievers, yellow and black Labrador retrievers, and German shepherds.
Mr. Collins said that Section 9, subsection 3, would grandfather in current trainers, and recognize trainers from other jurisdictions. He wondered if provisions in the bill would allow for nonprofit volunteers, since there were no licensed dog training facilities in Nevada. He said that in the realm of breaking horses, there were both volunteer groups and professionals. He asked, since these folks were donating the dogs, if there were any provisions in the bill that would allow for that distinction within the intent of the bill. Mr. Collins also asked if the group was nonprofit, and why they had to take the dogs to San Rafael.
Mr. Wish said that Guide Dogs for the Blind in San Rafael, California, had been in operation since 1942. They started the school when service men and women returned from World War II and needed service dogs. Over the years, they became one of the premier schools in the United States with dogs all over the United States and Canada. Mr. Wish said that qualified blind people were matched with a dog and trained together for a month before returning home. The blind persons incur no cost for the dog, training, or transportation.
Mr. Wish said he thought that the concern was that some individuals wanted to make a public service into a business. He said that he had not dealt with people in that kind of business.
Mr. Collins said that since Nevada did not license electricians and plumbers, he did not understand why Nevada would need to license dog trainers.
Chairman Manendo mentioned that Senate Bill 231 had been referred to the Assembly Health and Human Services Committee, whose chairman was Assemblywoman Koivisto. He asked Mr. Wish if he would be willing to work with the Committee on this bill, and on S.B. 231 with the Health and Human Services Committee. He said they would all appreciate Mr. Wish’s expertise. Mr. Wish replied that he would be pleased to do so.
Myla Florence, Department of Education, Training, and Rehabilitation (DETR), testified against Section 9 of A.B. 332 (Exhibit E). She said that existing language in Sections 11 through 14 currently authorized the Division to approve service dog training schools. Since there had been no regulation to date, Ms. Florence assumed that the provision was in the statutes in the event that a school did attempt to open in Nevada. However, even if an applicant-school came to Nevada, DETR did not possess the expertise or staff to regulate and approve such schools. She suggested that those who rewrote the bill should consider removing those sections. She offered to answer questions from the Committee.
Chairman Manendo asked Ms. Florence if she was involved with S.B. 231. Ms. Florence answered no. They were not named in that bill. The Chairman thanked Ms. Florence for her testimony.
Linda Lueck said she wanted to reiterate to everyone that this bill was not the bill she had proposed. The areas of concern, Sections 9 and 11 through 14, were sections that she thought should be deleted. She said she would be pleased to work with the Committee and with the Nevada Disability Advocacy and Law Center, who had attorneys present, to rewrite the bill as originally outlined.
When no one else came forward to testify, Chairman Manendo closed the hearing on A.B. 332. The Chairman directed the Secretary to include written testimony from Jack Middleton – the one-page statement (Exhibit F) and not the two-page e-mail, which was a duplicate – as part of the record. He explained that the Committee would wait to take action on A.B. 332 until Ms. Lueck submitted an amendment to the Committee.
The Chairman then directed the Committee to take a short recess, and he reconvened the meeting at 9:23 a.m.
Assembly Bill 334: Revises provisions regarding issuance of certain permits to appropriate or change point of diversion of water for wells to prevent adverse effects on existing domestic wells. (BDR 48-738)
The Chairman opened the hearing on A.B. 334. Assemblywoman Dawn Gibbons, Washoe County District No. 25, and Assemblywoman Sharron Angle, Washoe County District No. 26, came to the witness table to present the bill.
Assemblywoman Gibbons spoke in favor of A.B. 334. Mrs. Gibbons said that this bill was brought forward in response to serious water problems that her constituents, and her colleague’s constituents, had been facing in recent years, in the Galena alluvial fan area of Washoe County. The bill was originally requested by former Assemblyman Dave Humke, now Chairman of the Washoe County Board of Commissioners. When he decided not to run for the Legislature, Mrs. Gibbons said she followed up on the Bill Draft Request (BDR).
Assemblywoman Gibbons explained that A.B. 334 was not an answer to all the issues that had been raised by domestic well owners and the owners of large production wells, which were drilled to support urban growth in the South Truckee Meadows vicinity. Mrs. Gibbons hoped that the bill would be a step in the right direction, and would open the door to productive discussions.
Mrs. Gibbons stated that the key provision of A.B. 334 would mandate that the State Engineer must include, as a condition of the permit, a statement that if the new well caused unreasonable adverse effects on domestic wells in the area, the permit holder would be required to mitigate the impacts. This was the basic notice requirement. The second major element in the bill would directly authorize the State Engineer to require mitigation of those impacts.
Assemblywoman Gibbons said that those might seem like minor changes, but they were provisions that were not currently in the Nevada Revised Statutes. She warned the Committee that the issue was extremely controversial, and she said she understood that owners of domestic wells in her district would be proposing amendments to make A.B. 334 stronger. She also anticipated other amendments from those that might lean in the opposite direction. Mrs. Gibbons said that her goal in introducing this bill was to open the legislative dialogue and seek an opportunity to help well owners.
Mrs. Gibbons informed the Committee that a Groundwater Task Force appointed by the Regional Water Planning Commission of Washoe County had been working on those issues for some time. She hoped that the bill would complement their efforts. She said if a representative of the task force was present at the hearing, the Committee would benefit from an update on their activities. Mrs. Gibbons added that task force members could answer technical questions much better than she could.
Assemblywoman Gibbons then turned the floor over to her colleague, Assemblywoman Sharron Angle.
Assemblywoman Sharron Angle, Washoe County District No. 26, introduced herself and reminded the Committee that she formerly represented Washoe County District No. 29. She stated that the well water issue had been an issue in both districts and throughout her representation of Washoe County residents. She said that the concerned residents owned private wells and had experienced problems because of the rapid population growth in northern Nevada.
To put northern Nevada’s phenomenal growth into better perspective, Mrs. Angle said that northern Nevada’s growth might not seem as spectacular as growth in southern Nevada, but that if you divided Nevada into two states, northern and southern Nevada, southern Nevada would be the fastest-growing state in the union, Arizona would be the second fastest-growing state in the union, and northern Nevada would be the third fastest-growing state in the union.
Because of that phenomenal growth, developers were drilling large production wells that affected existing private wells that, in many cases, had existed for decades. She said there was an existing law that said that if private wells experienced impacts from nearby large production wells, those impacts must be mitigated. The heart of the problem was that no one had a clear definition of what an “impact” was. Assemblywoman Angle asked the Committee:
How much drawdown on your private well is necessary before you can claim an impact? Is it an impact if you only have 30 percent production left? Then will they mitigate? What does mitigation mean? Does it mean they will drill your well deeper? Does it mean that [drilling] is the only part they will help with? Does it mean they will help with the equipment, the new pump, and other equipment that goes into the ground?
So, we have some definition problems here. The law is clear that these things will happen, but we don’t know exactly when that takes place and what occasions the law to come into play.
Assemblywoman Angle said that the Committee would be hearing from several of her constituents, including Theresa Shannon. She said that her constituency throughout Washoe County had been affected by this issue because the growth was pervasive. What happened when the large production wells began to operate was that the water was used for golf courses and other services. She said that this was very irritating to her constituents because they had no water, and yet they watched it being sprayed in the air over golf courses while the surrounding landscape remained a desert. It was especially aggravating to residents when they were told to cut back on water, to put in “xeriscapes,” and urged to take water conservation actions.
Assemblywoman Angle said the Committee should realize that when they began working on definitions, they would need to consider words like “drought” because Nevada was in a drought cycle. She said that the task force had been working on those problems for over a year, and she wanted to bring forward similar legislation earlier. She was not sure how to approach writing such a bill and was glad that former Assemblyman David Humke had filed the BDR.
The issue was so large, she believed that the Committee might need to consider an interim committee to study water issues. Mrs. Angle believed that some of her colleagues from rural areas would join the discussion because they saw that their areas would soon be affected by the same problems in the future. She said that legislators would want to discuss and craft rules to govern growth and development, so that when it happened, they had a dependable plan to follow that would mitigate and resolve the water problems.
Mrs. Angle said that her colleagues in northern Nevada had already experienced problems and issues raised by the Colorado River Compact, which had caused water to be withdrawn. She said she knew that southern Nevada was already facing similar problems.
Although Assemblywoman Gibbons and she were both from northern Nevada, she stressed that this bill was not a local or regional problem. They researched other desert areas, such as Arizona and New Mexico, asking how those states had mitigated their growth problems. Assemblywoman Angle emphasized, “This is a statewide problem and a desert problem.” In conclusion, Assemblywoman Angle said that they had brought forward the best instrument they could today to further the discussion. She was confident that many heads would come together with good answers. They relied on the Committee to help them decide what needed to be done about the problems. She thanked the Committee for listening to her testimony.
Chairman Manendo said they were always willing to help.
Theresa Shannon, resident and property owner on the Mt. Rose Highway, and member of the public, said that her phone did not stop ringing until after midnight last night, when people found out she would testify before the Committee. She said she wanted to express her feelings about two friends who were foremost in her thoughts: Gladys Gillette and Joe McDonald, a neighbor across the road.
Gladys Gillette, a Washoe Valley resident in her 70s, had heart problems that were definitely exacerbated by anxiety over the low water level in her well. Ms. Shannon said that Ms. Gillette’s well had less than 10 feet of water left, and a new production well had recently been installed down the hill from her property. Every day she sat there wondering, “Do I turn the water on? Will this be the last drop? Do I water the lawn?” She actually let the lawn die, as most of us have, said Ms. Shannon.
Ms. Shannon said that the other person in her thoughts today was Joe McDonald. He panicked when he heard that he had less than 5 feet of water remaining and quickly sunk a new well. The old well was now located under power lines, which prevented deepening or redrilling the existing well. Only after drilling the new well did he begin to plan how to hook it up to the house. Recently he was cited by the Health Department for not capping the old well. He could go to jail, Ms. Shannon expected, because in court he would be “the most cantankerous, rotten person you’ve ever met.” She said he was so angry that she could hardly get him to talk straight.
Ms. Shannon said that the experiences of those folks illustrated why water quickly became a very emotional issue for residents. Most people believed, like Joe McDonald, that the water had been stolen out from under their homes.
The first page in the packet (Exhibit G) showed a photo of the drilling rig on her property. Ms. Shannon said she and her neighbors lived off the Mt. Rose Highway, on the Galena alluvial fan area in the Sierra Nevada foothills. Alluvial fans border mountains at the outlets of stream channels and contain mostly coarse-grained sediments. Ms. Shannon said she built one of the first homes on a 2.5 acre desert lot, and most of her neighbors were now in their 80s. She moved there to learn from her older friends what Nevada was about: horses, chickens, and geese. She said that every morning her rooster woke up Madelyn Shipman, Washoe County District Attorney, who lived nearby. The road was still dirt and no winter road maintenance was provided, although property taxes had increased from $800 per year in 1995 to $1600 per month in 2003. [It was later clarified that those taxes were per year and not per month.]
Ms. Shannon and her neighbors’ homes were located near the Mt. Rose Highway, with Montrêux Golf Course and Galena Pines subdivision above them and Saddlehorn subdivision below them. When well problems started 1½ years ago, within a nine-month period, seven out of nine wells experienced extreme hardship. Four of those wells were redrilled, replaced, or hooked up to city water. The main issue for Ms. Shannon and her neighbors was that no pipes or infrastructure existed to hook up to a municipal water system.
Because the war on water had raged for years in Nevada, Ms. Shannon learned by her involvement in water issues that Nevada was leading the way for the rest of the West. The plight of a Lemmon Valley resident, Laura Bushey, was in that week’s Reno Gazette Journal, and the next day the San Francisco Chronicle reprinted the article because they knew that it was an important national issue, as well as a huge issue in Nevada.
Ms. Shannon said that her main message to the Committee was that domestic well owners needed the Legislature to protect the water under their homes. According to Ms. Shannon, the Nevada Revised Statutes (NRS) did not require residents to be notified when large production wells were planned in the area. No notification procedure existed. In spite of the fact that 28 large production wells now surrounded her neighborhood, residents were still being told that the reason their wells were going dry was because of drought, not because of production wells.
“If you don’t have water, your home is not habitable,” said Ms. Shannon.
Currently, the Health Department had the authority to decide whether a home was livable, and if not, to force residents to vacate their homes. Ms. Shannon said residents must have the money in the bank to pay for redrilling because the banks would not loan unless finding water was guaranteed. If people did not have the money to redrill, they could be forced to move and their home would be worthless; and because wells were not considered part of a home, homeowners’ insurance would not cover the loss. She said it cost $38,000 for four of her neighbors to replace their wells, and since most of them were on fixed incomes, those kinds of costs were not absorbable over a year or so.
Most people looked at the Sierra Nevadas, and seeing snow on the mountains, concluded that water must be available below. Ms. Shannon said that that was not true. She explained that her neighborhood and surrounding subdivisions were located on alluvial fan-type ground, which was composed mostly of coarse sediments. An “alluvial fan” was the portion of the foothills where coarse-grained sediment allowed water to percolate down into the lower aquifers of the basin. She said that alluvial fan areas, which channeled water deep underground into the lower aquifers, were being covered up by development. Not only was development decreasing the ability of the fan to recharge the lower aquifers, to make the problem worse, large production wells came into the area and pumped water up from the bottom levels of the basin, which was causing reserves to slowly dry up. “And that is why we have no water,” stated Ms. Shannon.
Ms. Shannon noted that many who lived in the subdivisions thought they had plenty of water. As Assemblywoman Angle had said, they landscaped their properties and watered large lawns. Ms. Shannon’s group lived right above Saddlehorn and Fieldcreek, fancy subdivisions with million-dollar homes and lovely landscaping. Meanwhile, their wells were going dry.
Ms. Shannon said that was not happening only in northern Nevada. It was happening in Henderson, Pahrump, Battle Mountain, Elko, and Winnemucca. Water problems were increasing all over the state. She said she attended a county meeting where they considered laying pipes all the way to Winnemucca, to provide water for Washoe County. She stressed that it was evident that Washoe County had been overdrawing its water checking account every year. A neighbor said, “If I kept my checkbook balance like the government kept the balance of water, I would be in jail, under arrest for writing bad checks.”
Ms. Shannon turned to the graph in the packet that showed various water levels underground. She stated that the reason it was difficult to determine accurate water levels was that some people only needed a well that was 30 feet deep, and when that well went dry, they could redrill and find more water at 60 feet, or perhaps find sand or bedrock. “You just don’t know what you might find,” she said. Right across the road, someone may need to drill to 350 feet to find water. Regardless, the large production wells generally pumped from the lower water levels. Ms. Shannon said that when a situation occurred where the lower water level pumping was actually affecting upper level wells, it was obvious that large production pumping had dramatically affected the natural equilibrium. She said the Committee should not lose sight of that important fact.
Changes to Nevada law in July 2001 made domestic wells a “protectable interest,” and described wells as appurtenances to the property. Wells were not, in fact, being protected. Her neighbor across the road went to court, but the judge accepted arguments that his well had dried up because of drought, in spite of the fact that well owners on either side were reimbursed. Joe McDonald and many others were not reimbursed for their losses because Washoe County successfully argued in court that development had not affected their wells.
Most well owners in Nevada did not have water rights for the well water, but an older law had guaranteed every well owner the right to draw 2.02 acre-feet of water annually from a domestic well to use for domestic purposes. Per the NRS, the State Water Engineer had to grant approval for every well drilled. Not every domestic well required a permit, but they always required the state’s approval.
Ms. Shannon said that the statement in Slide 12 was verifiable proof that the original intention of Senate Bill 159 of the 2001 Legislative Session was to protect domestic wells. That statement was written by Assemblywoman Dawn Gibbons, August 2001, when Ms. Shannon first began to research domestic well issues. The statement read:
One of the more controversial water-related measures in 1999 set forth the conditions under which the State Engineer could revoke a temporary permit or prohibit deepening or redrilling of a domestic well in Clark County – thus, in effect, requiring the owner of the well to hook up to a municipal water system.
This issue was revisited in 2001 through enactment of Senate Bill 159 [of the 2001 Legislative Session]. Because a person generally does not have to obtain a permit to drill a domestic well to serve a single-family residence, the well owner also does not receive a “water right” in the traditional sense. For this reason, in the early 1990s the Legislature created a “protectable interest” for these wells, ensuring that the owners have a degree of protection when a new larger well is proposed which may infringe on their water supply. Senate Bill 159 [of the 2001 Legislative Session] extends this “protectable interest” which originally had applied only outside Clark County, to Clark County as well. The measure also establishes a “floor” of 50 percent to go along with the existing “cap” of 85 percent of the hookup fees that must be provided to the domestic well owner or to the holder of a revocable permit who is required to connect to a municipal water system
Ms. Shannon said that Slide 13 was a photo of what the alluvial fan area looked like when she bought land there in 1997. She had been recently told that the current drawdown was reasonable, and she should have anticipated her well would go dry. She said that she was told she should have known that the field in the photo would be covered with thousands of homes, that her property would soon be surrounded with Raleys, Starbucks, and shopping malls, and with Galena Heights, Double Diamond, Montrêux, Fieldcreek, and Arrowcreek subdivisions. She wanted to know how a member of the public could possibly know of the many subdivisions planned there. “How could a person have anticipated dry wells in a sparsely populated area right below beautiful, snow-capped Mt. Rose?” she asked. Ms. Shannon wanted to know if the state of Nevada really wanted to market the state to new residents in such a deceptive way, implying that the state would be setting them up for a costly fall.
Ms. Shannon testified that all the developments surrounding the older properties where she lived went through an approval process and had been approved by Washoe County officials. “When they approved those developments, how could they not think about the people that were already living there?” she asked.
When her well went dry in 2001, Ms. Shannon became angry. She wanted answers. She said she represented domestic well owners on the Groundwater Task Force, but today she represented only herself and fellow domestic well owners. She held up a recent list of 34 proposed studies of hydrographic sub-basins in which officials said they needed to protect aquifers and determine what was reasonable drawdown. She said the studies would take 5 years each to complete.
She concluded that if the intent was to use those studies to determine the impact of production wells on the 8,100 domestic wells in the area, prior to driving those wells dry, she did not think there was enough time. Well owners could not wait for the studies to be finished before approaching the Legislature for help. Ms. Shannon emphasized, “By the time those studies are completed our wells will be dry and gone.” She pleaded with the Committee to help domestic well owners by taking action now.
Ms. Shannon then explained the contents of the proposed amendment to A.B. 334. Slide 43 was a chart that had been presented to the Regional Water Commission. She said that Mike DeMartini, private domestic well representative and County Commissioner, wanted to appear before the Committee, but he had to attend a hearing regarding the drought standard for TMWA, the major purveyor of water in the Reno area. Ms. Shannon said it looked like they would be lowering the drought standard, with the permission of the State Engineer. This meant that during the drought, when domestic wells would already be in trouble, TMWA, using its two large production wells, would have the right to pump even more water from lower levels of the same hydrographic sub-basin because their primary reserve for drought conditions was groundwater pumping.
Ms. Shannon testified that Slide 43 was a list compiled 9 months ago of subdivisions that were still on the books to be built in the area. She said that no subdivision on this list ever applied for water rights. Subdivisions were built in phases, and generally needed about one acre-foot of water per year (AFA) per unit. Some subdivisions were approved with only one-half AFA per unit. Normally, 30 acre-feet was the largest amount requested per final subdivision map. The State Water Engineer’s office sent her an e-mail recently that said, in the year 2000, an average of 37 lots had an average of 19 AFA of water appropriated or diverted, with actual volumes ranging between 3 and 28 AFA each.
She stated that those numbers were very important because they showed that the current law lacked any meaningful notification requirement to well owners. Only very rarely would a developer request a diversion or appropriation even close to 350 AFA (1/2 of 1 cubic foot per second), and, according to current law, notification was only required when over 350 acre-feet of water was appropriated or diverted annually. “For example,” Ms. Shannon said,
The geothermal plant wanted 88 cubic feet per second this year, but they didn’t put in for one permit for 88 cubic feet per second. They put in for 8 appropriations at 11 cubic feet per second.
So what is 350 acre-feet about? It’s saying: private domestic well owners, we don’t care about you. That’s exactly what it’s about. We would encourage you to take a good look at using that number in any bill draft.
Ms. Shannon then addressed the next two maps. Commissioner Short, in 2001, provided Ms. Shannon with the map captioned, “The effect of this many wells isn’t confined to 2500 feet!” She said that any resident of Nevada needed to understand that map. The statement on the map read, “The effect of these 17 out of 28 wells is clearly not limited to 2500 feet, and neither should the notification of the potential impact.” Somewhere in history, she explained, someone decided that there was a 2500 foot radius around each well which determined how far from each well head the right of notification of potential impacts would extend.
Ms. Shannon wondered how, at many water meetings she attended, the “radius of notification magically became the radius of mitigation,” while no one had yet been able to determine the actual “radius of impact.” Commissioner Short had handed her the map and said, ”If you’re inside the circle, you’ll get reimbursed. If you’re outside of the circle, you won’t.”
She said that well owners wanted to be monitored because data on private wells were not included in statistics kept statewide. Samplings per hydro basin were sometimes found, but samples could disagree from one yard to the next. Better and more complete information would help solve their problems.
Ms. Shannon described the uncertainty of predicting the underground water situation at any specific location using the analogy of a bathtub. She asked the Committee to imagine a bathtub full of water. She said, normally, when a person pulled the plug at the bottom, the water drained out of the tub.
Now imagine there are 28 drains, all pumping water from one tub. How can they not work together to drain the tub much faster? And if a rubber ducky, or granite outcrop, blocked one drain, the water would spread out and flow to the other 27 outlets. So, what real purpose do those clean little 2500-foot circles serve? They are not based on the reality of how water acts in a basin, nor do they serve to explain who is affected or how.
Although the first map showed only 17 of the 28 large production wells that existed in the area, Ms. Shannon pointed out that the row of properties making up her neighborhood was indicated by a line of square boxes located in between two masses of circles. In other words, they lived outside the mitigation radii, and sandwiched between two large clusters of production wells, that were all pumping water from the lower levels of the same hydrographic sub-basin.
Ms. Shannon concluded by asking the Committee to remember Gladys Gillette and Joe McDonald, and all her chickens, roosters, and geese because they were all being priced out by the people building fancy houses around them. The presence of those developments had not only raised property taxes, but had caused Ms. Shannon and her neighbors to lose their pre-existing wells, and sole source of water. They currently faced the situation of having to find $38,000 to $50,000 to redrill their domestic wells, or at least $18,000 to deepen the wells, and those expensive efforts were not guaranteed to yield results.
On October 2-3, 2002, the State Water Engineer held a hearing on the impacts on domestic wells, but, to date, there had been no ruling from that meeting. In the meantime, drilling rigs were in their neighborhood every day.
Ms. Shannon said it was very important that state legislation be enacted soon. People in Pahrump had the same problem. People on the road between Henderson and Boulder City had the same problem. People in Tonopah had the same problem. There was proposed legislation from Silver Springs addressing the same problem. People in Winnemucca had the same issue. William Shafer in Battle Mountain could talk to the Committee about the same issue. She stressed, “We need state legislation to be strong.”
Assemblywoman Gibbons said that the language was clean up; that 1/2 cubic foot per second was the same amount as 350 acre-feet, just different measures. She added that Mr. Humke did not propose the change.
Ms. Shannon continued saying that Mike DeMartini, Regional Water Commissioner, asked her to make the following point: If someone were allowed to pump 350 acre-feet of water on a long term basis, year after year, they would, in effect, be allowed to pump actually about double that amount. During drought years, the state adjusted average figures per year and per ten years, so that wells were allowed to pump more water during drought conditions.
Ms. Shannon continued describing the well owners’ suggested amendments to A.B. 334, on the last three pages of the handout packet (Exhibit G). The mock‑up text was printed in several colors and font styles: text in bold italicswas new language; text between brackets was omitted material; pink text was to be included; and blue text was original language they agreed with.
Page 17, line 37, instead of using the unreasonable “or more than 350 acre-feet per annum,” Ms. Shannon suggested that the bill be amended to ”or more than 4 acre-feet per annum.” She said if a resident owned a home and well for 20 years, and a development was planned next to the property, property owners should be notified because there were notification laws in place.
Page 17, line 42, Ms. Shannon said that they left the determination of limiting the permit up the State Water Engineer, but spelled out that “unreasonable adverse effects” were known to be “private domestic wells failing from drawdown caused by production wells in a hydrographic sub-basin.” The reasoning was that the State Water Engineer’s office should be prohibitive in order to prevent unreasonable adverse effects.
In other bills, the State Water Engineer suggested that all private domestic wells should be metered, and that people should pay penalties if they used too much water. Ms. Shannon said the production well owners should pay penalties for sucking all those wells dry. Ms. Shannon said that many water purveyors in the area were finding it acceptable to pay $12,000 to $20,000 as the cost of doing business. “People have had invisible hands come into their wells and take the water from underneath their property. Because it’s the government, they are getting away with it. That’s not right,” Ms. Shannon concluded.
Suggested language on Page 17, line 10, would mean that, if the State Engineer determined that unreasonable adverse effects were caused by actions of a permit holder, the State Engineer “must” require the permit holder to mitigate. Furthermore, he must also impose penalties equal to at least 25 percent of the capital improvement expenses of the private domestic well owner and repayment of at least 50 percent, and no more that 85 percent, of the capital improvements, on-site and off-site, to deepen, redrill, or hook up to a municipal system.
Many areas in northern and rural Nevada did not have pipes or any kind of infrastructure to bring water service to the homes. Ms. Shannon said that piped-in water was rare in her area. Although she lived six minutes from downtown Reno, there were no pipes. She said it would cost $3 million to bring the pipes up the hill to their neighborhood. The state wanted to create a special assessment district and have the well owners pay for it, not those who had stolen the water beneath their existing wells and properties.
Ms. Shannon said the state refused to charge the water users for the pipeline. She pointed out that they had not included it as part of their capital improvement costs, as they would for a special utility division. They had not included it in the budget for the following year. At a recent utility division meeting, members were asked if they had plans to complete Phase II and III of the proposed water infrastructure to the Mt. Rose-Galena area. They said no; they were waiting to see if the well owners would get their pipes “for free.”
Ms. Shannon emphatically stated that those pipes were not free. She said her well had cost $50,000, and the water would be gone within a year. The language “on-site and off-site” meant that the infrastructure expense would include the cost of laying pipes from the house to the edge of her property and down the street to the meet the main line. The cost to hook up Ms. Shannon’s property to water, just the on-site costs, would be $14,000 in addition to the cost of hooking on-site pipes to the main pipeline.
Ms. Shannon thanked the Committee and said she appreciated their patience.
Assemblywoman Gibbons responded that she was willing to work with the Committee on the domestic well issue and hoped they would have the time to work with her. She said that the State Engineer would probably have much to say about what was being asked of him. She hoped the Legislature could help those people before the wells were completely dry. She thanked Ms. Shannon for coming forward and said she did a great job representing her own and her neighbors’ point of view.
Assemblywoman Weber asked if there was a hierarchy of water rights. She said what she was hearing was that there was no access to municipal water, which was different than what was happening in Clark County regarding domestic well-users. She asked if the domestic water well rights were protected.
Assemblywoman Gibbons said that they were. There was a lot of law and it was complicated, but in general, the older the water rights the more valuable they were. There were many different kinds of water rights.
Ms. Shannon added that private domestic wells did not require water rights because the law had appropriated domestic well owners the right to 2.02 AFA. The well owners were asking the Legislature to protect that right.
Assemblywoman Gibbons said the Committee should not think of this as a water rights issue because it was very confusing. Some older water rights could be preempted by newer ones. This issue was about domestic water wells and the right of well owners to have water in their homes.
Assemblywoman Weber added that if folks had wells for years as their only source of water, it sounded to her that for reasons of courtesy and policy they should be protected. Because they were there first, and because wells were their only source of water, their rights should be upheld or they would not be able to live at home. She said that was just common sense to her.
Assemblywoman Angle said to Ms. Weber:
You’re exactly right. The issue is how will we supply water to their homes. If we allow the wells to be drawn down, then we have to create another way to supply water. What they are asking for is mitigation. When your water is gone and the well is dry, what is the recourse? Don’t tell the landowner, “Sorry. You’re just out of luck. You bought in the wrong place. You don’t have any water left. Too bad.”
Assemblyman Grady asked Assemblywoman Gibbons about the Groundwater Task Force study in progress: Who was doing it and how soon would it be available? Mrs. Gibbons referred the question to Ms. Shannon. Ms. Shannon said that the task force was primarily composed of representatives from the State Water Engineer’s Office and from the various water purveyors. She said there was one private domestic well owner on the task force, and the rest were in the business of purveying water, making the findings difficult.
Assemblyman Grady said it sounded like the problems that were still going on in Clark County. “If you have subdivision above and below you, who supplied water to them? Private water companies? Or is it part of the city water service to which you might connect some day?”
Ms. Shannon said it was all those options, including private wells. With new laws in front of the Assembly this year regarding the spheres of influence of the City of Reno, there could be even more confusion because, based on the nature of the changes, there could be additional reorganization and consolidation. For example,
You have a private, quasi-municipal [entity] like South Truckee Meadows General Improvement District, which reported to the Board of Commissioners of the County, and then you have County Water Resources, and all operating right near each other in the same hydrographic sub-basins. That’s what makes it difficult.
Ms. Shannon explained that existing law read that domestic well owners must prove who affected their wells. ”How can a homeowner whose well is dry, who needs water tomorrow, prove which party affected the well? It’s impossible the way the law is currently written.”
Assemblyman Goicoechea said he came from rural Nevada, and water issues did not just occur in Washoe Valley. Rural Nevada had been experiencing declining groundwater levels for years. His question was whether hooking up to the municipal water system would be considered mitigation to Ms. Shannon’s group of domestic well owners. He thought that would probably be the only resolution available: they would be offered a hookup to municipal water.
Ms. Shannon wondered if Mr. Goicoechea’s question translated to “does that make us happy?” She said no, because she chose to live there to drink water from the mountain above her. She felt they had taken part of the spirit of where she lived away from her. The reality was that hooking up was the only answer in state law, and it said that if she was a certain distance from the pipe she must hook up. If the well failed or needed a permit, she thought she should have the right to use the well until time to hook up. She wanted water, but she did not think it was fair that she should have to pay for what others took.
Assemblyman Goicoechea agreed that costs would need to be part of the mitigation. He wanted to make sure that the people she represented understood that that was probably the only resolution.
Assemblyman McCleary said to Ms. Shannon that he thought the problem started with poor planning, and was a good argument for notifying all affected parties. Regarding mitigation, he said he “was a little fuzzy.” In the bill it said, “As determined by the State Engineer.” Mr. McCleary said, “We can’t force county or city officials to properly plan for things like this. Sometimes the pressure for growth is overwhelming for them. But you ask that your property be taken care of, and the response seems too vague to me.”
Assemblywoman Gibbons declared,
Thank you, Assemblyman McCleary. God love you. You understand this. And that’s why we need your help. This bill obviously was not something that could really help my constituents in the way it was written. And there was no time to change it ahead of time. So, that’s why I asked Ms. Shannon to be here. I’m asking for your expertise as well. You get it. You truly get the situation. We have to do something. We’re coming for your help.
Ms. Shannon said they needed to remember that the County Commissioners of today might not be the ones responsible for poor planning in the past. To make things equitable and fair to all was the goal, not just to well owners.
Looking at proposed [pink] changes on page 17, she pointed out that penalties had been added. Penalties would take the costs out of the realm of collateral damage for running water in this area, she stated. Ms. Shannon said that would put pressure on local authorities and purveyors of water and address the main problem, which was that the problems could all be ignored by saying they were due to drought.
For example, residents near Callahan Ranch off Mt. Rose highway and in Lemmon Valley described in newspaper articles (Exhibit H and Exhibit I) were being told that they were not affected by production wells, so they did not qualify for mitigation. No one had sufficient data. She said they needed a mitigation plan that clearly stated that if you lived in a hydrographic sub-basin, and well levels were lowered due to drawdown, and the hydro-basin was not recharging, then you qualified for mitigation.
Assemblyman Knecht said that he did not have the detailed answers, but volunteered to be the third primary cosponsor because this issue had already affected his district, which included part of Washoe Valley. Mr. Knecht thanked the three presenters and said he would work with them on the issue.
Assemblywoman Angle said to Mr. Knecht and Mr. McCleary, “Thank you for understanding the issue, and also Mr. Goicoechea.” She said a blame game was in progress.
That’s what these folks have been hearing: it’s the former County Commissioners; it’s the State Engineer before him; or whatever. No one wants to take responsibility for this, and A.B. 334 would bring closure through the legislative process. They need a determination and to know that the buck needs to stop here, even if you were not responsible for the problem. We need closure on this.
Hugh Ricci, P.E., State Water Engineer, Nevada Division of Water Resources, said he had not yet analyzed the amendments, and he would direct his comments to the bill as originally proposed. Mr. Ricci said he might not address the issues raised regarding the amendments, and he was taking a neutral position on the bill because lives were being affected. He wanted to present other relevant circumstances and the big picture.
Senate Bill 19 of the 1993 Legislative Session included the concept that well owners had a “protectable interest,” and made well permits that were issued for any municipal, quasi-municipal, or industrial purposes and which were expected to pump one-half cubic foot per second, conditional on preventing any unreasonable effects on existing domestic wells within the 2500 feet radius.
Ms. Shannon, Assemblywoman Angle, and Assemblywoman Gibbons were correct that there was no science behind the 2500-foot radius because in some instances the range of impact might go to a higher figure, or might not have any impact at ten feet. In addition, Ms. Shannon was correct that there was a request before him right now, as the State Engineer, to define what was a “protectable interest” according to the 1993 legislation, and to define what was an “unreasonable lowering of the groundwater table.”
Mr. Ricci said the determination of what was unreasonable drawdown was difficult. For example, “if someone had a well 40 feet deep, and had water in it 30 feet deep, that meant that they had 10 feet left. Water may exist to 1000 feet, or who knows how deep it might be,” and in some cases the wells were not drilled deep enough in the first place. He agreed with Ms. Shannon: How would anyone know 30 years ago that 40 feet was not deep enough? Currently, the recommendation was that people drill 100 feet past the first water encountered. Averaging the general drawdown in the state, if one planned on at least 2-3 feet per year of drawdown, that well would last 20 to 30 years.
A.B. 334, as introduced, contained concerns with the addition of Section 1, subsections 5(b) and 6, said Mr. Ricci. He said it would take a tremendous amount of time to implement, when he looked at the original bill versus the proposed amendment. The amendment called for 4 AFA. Mr. Ricci said that few permits were issued for less than 4 acre feet per year, which would mean that limit of 4 AFA would apply to every single permit issued from now on. In addition, it could be applied retroactively to wells for which permits had already been issued and that pumped more than 4 AFA.
Mr. Ricci’s other great concern, which he was not sure he had the ability to perform, was to force mitigation on a municipality or water purveyor in terms of imposing a monetary penalty. He did not know, especially in rural Nevada, how he could legally impose a fine on a small municipality, not to mention collection. He was not sure rural communities had enough money to pay for an extension of a waterline, which could include hooking up a well owner, and/or plugging the well. If passed into law, A.B. 334 would apply statewide, not just to the Mt. Rose/Galena area or Las Vegas. That meant that a state official, the State Water Engineer, would require payment and collect money from a local government. He was not sure if it was in the realm of his authority to do that.
Mr. Ricci said that mitigation already existed in the law, as written, and it said he could limit or prohibit the pumping of a production well, unless the parties agreed to some other form of mitigation. That law forced the applicant to work directly with those persons who caused him grief, and would force those responsible to mitigate the issue without limiting their pumping. If they were to cease pumping water, then all their customers would also be affected.
Currently, Mr. Ricci said, the groundwater management district in Las Vegas had a mitigation program in place, as Ms. Shannon had indicated, which specified that “not less than 50 percent, nor more than 85 percent, would be reimbursed for deepening, redrilling or hooking up.” There was also a Groundwater Task Force addressing those issues. Mr. Ricci realized that when a person’s well went dry, it was a very serious problem. However, when a statewide law was created, he said legislators should look at that very carefully, and be cautious about what power was given to the State Engineer to impose mitigation measures.
Mr. Ricci said there was a priority hierarchy in the issuance of permits, in response to a question by Ms. Weber. Ms. Shannon was correct that domestic wells do not need permits, and that was what was very unclear in A.B. 334, because it said, ”adverse effects on existing wells. Would that mean adverse effects on any existing well, regardless of the time it was put in, or with respect to the time the production well was put in?” Mr. Ricci thanked the Committee for their attention and said he supported Assemblywoman Angle’s observation that A.B. 334 needed additional work.
Mr. Collins said that the Las Vegas artesian basin was overdrawn and it was being recharged. He wanted to know what facilities were available in the state for recharging the Washoe basin, and was any water being transferred into that basin because of the over drilling. He asked how anyone would know if over-drilling were in progress, without permitting the wells as they did in Clark County.
Mr. Ricci replied that, outside of Las Vegas, there were three other active recharge programs in progress in Nevada: One in Truckee Meadows, one in Carson City, and one in Lemmon Valley. Truckee Meadows recharge was operated by the Truckee Meadows Water Authority (TMWA), Lemmon Valley recharge effort was operated by Washoe County, and Carson City recharge effort was operated by Carson Utilities.
Mr. Collins asked where the recharge was coming from. Mr. Ricci replied, “Surface water.” He said that Truckee River water was the water source for the two recharge projects in Lemmon Valley. Mr. Ricci stated that no recharge projects were planned or in progress near Ms. Shannon’s property. He suggested that a study could be done to determine if recharge was possible there.
Mr. McCleary asked Mr. Ricci: “Do you recognize that there is a problem with domestic well owners, as Ms. Shannon has indicated?” Mr. Ricci replied, “Yes. I agree. Water levels are going down. There is no question about that.”
Mr. McCleary asked if it would be unreasonable to ask the State Water Engineer to bring the Committee some specific recommendations to fix the problem. He said he had heard Mr. Ricci’s objections but had not heard any counter proposals as to how he might want to address the problems.
Mr. Ricci responded that he had no answers at this time. He was not sure, given the way the bill was written in subsections 5(b) and 6, how a State Water Engineer could force mitigation on water users. He said he did not know how to do that because his office was not set up to deal with the revenue. Although he had the power to limit, or stop, the pumping from a permitted well, it was the only leverage he had to motivate the parties to negotiate a mitigation plan. Mr. Ricci said he did not really have a complete answer that would resolve the problems.
Mr. Goicoechea asked what the rate of decline had been over the last 10 years. Mr. Ricci answered that he did not know but would find out. Mr. Goicoechea said he would appreciate that.
Steve Walker, representing TMWA, said he would oppose the bill only if the State Water Engineer was given the authority to enforce mitigation. If the bill moved forward as written there would be no significant impact on TMWA because they were not in areas where there was a concentration of municipal or domestic wells, although there was some exposure for services to Levy Lane, and south of Levy Lane. He did not support the changes because they would not require TMWA to do anything different. The current law stated that if the State Water Engineer stopped the pumping of water, there would be mitigation anyway.
Mr. Walker said that the TMWA was very supportive of the local process, including the local Groundwater Management Task Force for the Mt. Rose alluvial fan, which was sponsored by the Regional Water Planning Commission, and whose members represented the Health and Human Services Department, domestic well owners, water purveyors, and water engineers. The task force was driven by a facilities plan developed locally, which addressed the issue that municipal production well pumping to the upper limit of water permitted would, in fact, have an adverse impact on domestic wells. The facilities plan further stated that agencies did not normally pump all the water for which they had a permit. That fact allowed some flexibility in addressing impacts and utilizing other water sources. Mr. Walker concluded by saying that, in that case, the solution was local, and not state.
Andy Belanger, representing the Southern Nevada Water Authority and Las Vegas Valley Water District, Las Vegas, stated that he had some concerns and had pledged to work with Assemblywoman Gibbons on those issues. His main concern was that the Las Vegas Valley Groundwater Management Program, which was operated by the Southern Nevada Water Authority, already mitigated well-user situations, where well water levels had declined, and wells had failed.
Mr. Belanger stated that they provided financial assistance in the form of a grant for 85 percent of replacement, redrilling, or municipal connection costs, which did not have to be paid back. Well users had embraced the program in general, and since 1999, about 150 well users had taken advantage of the program. Of those well users, 135 chose to connect to the municipal water system. They believed that the program had been very successful in reducing demand on the aquifer. If the bill’s sponsors were interested in looking at their legislation and drafting similar legislation for Washoe County, or statewide, he would be happy to work with them.
Madelyn Shipman, District Attorney, Washoe County, stated that the county had been actively involved at the local level with not only the task force, but with the Planning Commission. She said they were working with everyone, because they recognized that there was a real issue here. She said she would like the opportunity, since the bill would not necessarily go forward as is, to participate and work with the Assemblywomen and with Assemblyman Knecht to come up with a product everyone could agreed on.
Mr. Walker added that TMWA would gladly participate in any kind of dialogue. One correction: the pumping of groundwater was not the largest drought source for TMWA. Independence Lake had 13,000 acre-feet (AF), Donner Lake 3,500 AF, and an interim storage contract had 5,000 AF. The total far exceeded what might be pumped from the municipal wells in a drought scenario, under the conjunctive use system, with the State Engineer.
Kathy Bowling said she lived in the Callahan Ranch area near Mt. Rose highway. After Assemblywoman Gibbons’ comment that possibly this was not the exact wording of the legislation they needed, she wanted to say she was in favor of Ms. Shannon’s proposed amendment going forward. They needed some kind of mitigation from the State Water Engineer, who had been very reluctant to act in the past.
Ms. Bowling had watched the problems as they were created in the 1990s, that everyone was now trying to solve. She watched when the County Commissioners were busy approving all the subdivisions that went in around her home. Consequently, the large production wells that were used to serve them had floored the water table. They had not completely sucked her well dry yet, but she was sure that was coming as more homes were built.
The State Engineer said there was no need to pass A.B. 334, and that he had the power to limit pumping. Ms. Bowling said that would work for her, if he would prohibit any more pumping from the wells around her. That would solve her problem. She would like to stay on a well, if possible, because she considered it part of the property and her right. She did not want to give it up.
Ms. Bowling said that something had to be done with all the new production wells. It was like existing property owners did not have any property rights. When County Commissioners allowed Montrêux and St. James Village developments to go forward, they totally ignored existing property owners’ rights, as far as protecting their domestic wells. The Commissioners had failed to make new development mesh with existing development, and that was really a local problem.
Ms. Bowling said that domestic well owners needed to know what a reasonable drawdown was. She said they needed a definition on the books because they did not have pipes in place. They accepted the responsibilities that came from owning a domestic well, and would work around what nature sent them, like drought and earthquakes. Nevertheless, when the problem was man-made, then it should be remedied.
She said that in the 1970s they were told that domestic wells would be fine in that area. The County did not want to be a water purveyor then. Now, 20 years later, they changed the rules and required dedication of water rights on the part of the developer, and approved those subdivisions with water rights, without any consideration of how all the overwhelming growth would affect existing property owners. “We don’t have property rights,” she said, “I would appreciate more protection for my domestic well. Thank you.”
Ginger Pierce from Pleasant Valley said that they had no source of water except their own wells. She said she was the person who kept the newspaper clippings. Ms. Pierce asked the Committee for definitions for the following concepts:
· Protectable rights
· Mitigation
· Impacts
· Unreasonable lowering
Mr. Collins asked whether those wells were noticed and if the permits were revocable.
Ms. Shannon replied that private domestic wells were considered an appurtenance to a property, and in areas outside of Clark County, they had approved wells, but not permanent wells. The approval would not necessarily be granted for redrilling, replacement, or hookup. A well owner would be forced to hook up if there were a viable water system nearby. The State Water Engineer had the authority to make that determination. There were no water rights or permits, only state approval of the well for domestic use.
Robert Cameron served 4 years on the Washoe County Citizens Advisory Board, as chairman and member. He attended all but one of the Groundwater Task Force meetings. He said that some things were clear: If you had the money you would succeed. If you did not, you were in trouble. For instance, a legal notice was filed by Montrêux and by the Winkle Ranch. What they were doing was swapping water rights, because Montrêux water rights were dated later than Winkle Ranch water rights. Montrêux had effectively moved ahead in the pecking order.
Mr. Cameron said that a typical Nevada resident, Gene, had phoned him because officials came to his house and immediately began to discuss capping his well. He got his shotgun, and they quickly left.
Mr. Cameron phoned the hydrologist at the Division of Water Resources to tell them about the incident, so the situation did not get out of hand. This was just an example of how the problems were increasing. He said that the advisory board would recommend against developments because they were worried there might not be adequate water resources, but they would be overruled. Now, it turned out that wells were going dry, and something had to be done.
Lori Bushey, referred to in Exhibit H and Exhibit I, built her well in 1978 in Lemmon Valley. She said that Mr. Ricci was incorrect. The recharge project was in Golden Valley, not in Lemmon Valley. Lemmon Valley residents had not been helped. They had eight production wells in Lemmon Valley. When a brand new production well started up in August, her well dropped 70 feet that month. She had well water at 212 feet in 1978. She redrilled in 1985 to 298 feet and lowered her pump several times, but the level had remained stable since 1985, until last year.
In September 2002, Ms. Bushey went on an emergency trip to Wyoming and returned to find no water in the well. The next water they found was after redrilling again to 370 feet, right next to the old one. During those 2 weeks, Washoe County pumped over 3 million gallons out of the Lemmon Valley basin and authorities said the proximity of their well had nothing to do with her well going dry. Yet, that was the only factor that had changed.
Ms. Bushey concluded,
We do need protection because I have called Mr. Ricci, and he did not inform me there was a mitigation program. When I turned the bills in to Washoe County, they said I was not covered. They are still working on whatever, but they are not addressing my situation. My insurance company will not pay either. If Mr. Ricci wants to use the excuse there is no money, well, I could not use that excuse. The well drillers wanted their $22,000 within 30 days. I had no time to get a loan. I used a line of credit. I don’t think it’s fair I had to put in that kind of money when the production well went in at the same time. They’re saying it was a coincidence when they cranked up pumping to 4 million gallons per month.
Assemblyman Don Gustavson, Washoe County District No. 30, said that his district included both Golden Valley and Lemmon Valley. He spoke in support of A.B. 334, which addressed a statewide problem. He said domestic well owners needed relief, and asked the Committee to give the bill serious consideration.
Chairman Manendo closed the hearing on AB 334.
Mr. Collins requested more information from the legislative research staff on the Lemmon Valley water issue. Starting in 1993, legislation had been proposed and later a congressional investigation was initiated. Mr. Collins said the Committee needed information as to what happened and what was revealed there.
BDR 23-34: Prohibits designation of certain positions in government as being position for which monthly service retirement allowance may be paid when previously retired employee fills position during critical labor shortage. (Assembly Bill 450)
Chairman Manendo explained that BDR 23-34 was sponsored by the Committee’s former chairman, Mr. Doug Bache.
ASSEMBLYMAN McCLEARY MOVED FOR COMMITTEE INTRODUCTION OF BDR 23-34.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY WITH A VOTE OF THOSE PRESENT. (Mr. Christensen, Ms. Pierce, and
Mr. Williams were absent for the vote.)
Meeting adjourned at 11:05 a.m.
RESPECTFULLY SUBMITTED:
JoAnn Aldrich
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: