(Reprinted with amendments adopted on April 21, 2003)

 

Senate Bill No. 336–Senator Hardy

 

March 17, 2003

____________

 

Referred to Committee on Natural Resources

 

SUMMARY—Makes various changes relating to water rights. (BDR 48‑848)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: Yes.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to water; authorizing the State Engineer to postpone action on certain applications for water rights; providing that certain applications for water rights remain active until acted upon by the State Engineer; requiring the State Engineer to provide certain notices to persons who submitted reports of conveyance if he confirms those reports; requiring the State Engineer to quantify in acre-feet certain water rights, to give certain persons notice concerning those water rights and to file a notice concerning those water rights with the office of the county recorder of the county in which the water is appropriated; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1.  NRS 533.360 is hereby amended to read as follows:

1-2  533.360  1.  Except as otherwise provided in subsection 4,

1-3  NRS 533.345 and subsection [3] 4 of NRS 533.370, when an

1-4  application is filed in compliance with this chapter , the State

1-5  Engineer shall, within 30 days, publish or cause to be published

1-6  once a week for 4 consecutive weeks in a newspaper of general

1-7  circulation and printed and published in the county where the water

1-8  is sought to be appropriated, a notice of the application [,] which

1-9  sets forth:

2-1  (a) That the application has been filed.

2-2  (b) The date of the filing.

2-3  (c) The name and address of the applicant.

2-4  (d) The name of the source from which the appropriation is to be

2-5  made.

2-6  (e) The location of the place of diversion, described by legal

2-7  subdivision or metes and bounds and by a physical description of

2-8  that place of diversion.

2-9  (f) The purpose for which the water is to be appropriated.

2-10  The publisher shall add thereto the date of the first publication and

2-11  the date of the last publication.

2-12      2.  Except as otherwise provided in subsection 4, proof of

2-13  publication must be filed within 30 days after the final day of

2-14  publication. The State Engineer shall pay for the publication from

2-15  the application fee. If the application is cancelled for any reason

2-16  before publication, the State Engineer shall return to the applicant

2-17  that portion of the application fee collected for publication.

2-18      3.  If the application is for a proposed well:

2-19      (a) For municipal, quasi-municipal or industrial use; and

2-20      (b) Whose reasonably expected rate of diversion is one-half

2-21  cubic foot per second or more,

2-22  the applicant shall mail a copy of the notice of application to each

2-23  owner of real property containing a domestic well that is within

2-24  2,500 feet of the proposed well, to his address as shown in the latest

2-25  records of the county assessor. If there are not more than six such

2-26  wells, notices must be sent to each owner by certified mail, return

2-27  receipt requested. If there are more than six such wells, at least six

2-28  notices must be sent to owners by certified mail, return receipt

2-29  requested. The return receipts from these notices must be filed with

2-30  the State Engineer before he may consider the application.

2-31      4.  The provisions of this section do not apply to an

2-32  environmental permit.

2-33      Sec. 2.  NRS 533.370 is hereby amended to read as follows:

2-34      533.370  1.  Except as otherwise provided in this section and

2-35  NRS 533.345, 533.371, 533.372 and 533.503, the State Engineer

2-36  shall approve an application submitted in proper form which

2-37  contemplates the application of water to beneficial use if:

2-38      (a) The application is accompanied by the prescribed fees;

2-39      (b) The proposed use or change, if within an irrigation district,

2-40  does not adversely affect the cost of water for other holders of water

2-41  rights in the district or lessen the efficiency of the district in its

2-42  delivery or use of water; and

2-43      (c) The applicant provides proof satisfactory to the State

2-44  Engineer of:

3-1       (1) His intention in good faith to construct any work

3-2  necessary to apply the water to the intended beneficial use with

3-3  reasonable diligence; and

3-4       (2) His financial ability and reasonable expectation actually

3-5  to construct the work and apply the water to the intended beneficial

3-6  use with reasonable diligence.

3-7  2.  Except as otherwise provided in subsection [6,] 7, the State

3-8  Engineer shall approve or reject each application within 1 year after

3-9  the final date for filing a protest. However:

3-10      (a) Action may be postponed by the State Engineer upon written

3-11  authorization to do so by the applicant or, if an application is

3-12  protested, by the protestant and the applicant; [and]

3-13      (b) Action may be postponed by the State Engineer if the

3-14  purpose for which the application was made is municipal use; and

3-15      (c) In areas where studies of water supplies have been

3-16  determined to be necessary by the State Engineer pursuant to NRS

3-17  533.368 or where court actions are pending, the State Engineer may

3-18  withhold action until it is determined there is unappropriated water

3-19  or the court action becomes final.

3-20      3.  If the State Engineer does not act upon an application

3-21  within 1 year after the final date for filing a protest, the

3-22  application remains active until acted upon by the State Engineer.

3-23      4.  Except as otherwise provided in subsection [6,] 7, where

3-24  there is no unappropriated water in the proposed source of supply,

3-25  or where its proposed use or change conflicts with existing rights, or

3-26  with protectible interests in existing domestic wells as set forth in

3-27  NRS 533.024, or threatens to prove detrimental to the public

3-28  interest, the State Engineer shall reject the application and refuse to

3-29  issue the requested permit. If a previous application for a similar use

3-30  of water within the same basin has been rejected on those grounds,

3-31  the new application may be denied without publication.

3-32      [4.] 5. In determining whether an application for an interbasin

3-33  transfer of ground water must be rejected pursuant to this section,

3-34  the State Engineer shall consider:

3-35      (a) Whether the applicant has justified the need to import the

3-36  water from another basin;

3-37      (b) If the State Engineer determines that a plan for conservation

3-38  of water is advisable for the basin into which the water is to be

3-39  imported, whether the applicant has demonstrated that such a plan

3-40  has been adopted and is being effectively carried out;

3-41      (c) Whether the proposed action is environmentally sound as it

3-42  relates to the basin from which the water is exported;

3-43      (d) Whether the proposed action is an appropriate long-term use

3-44  which will not unduly limit the future growth and development in

3-45  the basin from which the water is exported; and

4-1  (e) Any other factor the State Engineer determines to be

4-2  relevant.

4-3  [5.] 6. If a hearing is held regarding an application, the decision

4-4  of the State Engineer must be in writing and include findings of fact,

4-5  conclusions of law and a statement of the underlying facts

4-6  supporting the findings of fact. The written decision may take the

4-7  form of a transcription of an oral ruling. The rejection or approval of

4-8  an application must be endorsed on a copy of the original

4-9  application, and a record must be made of the endorsement in the

4-10  records of the State Engineer. The copy of the application so

4-11  endorsed must be returned to the applicant. Except as otherwise

4-12  provided in subsection [7,] 8, if the application is approved, the

4-13  applicant may, on receipt thereof, proceed with the construction of

4-14  the necessary works and take all steps required to apply the water to

4-15  beneficial use and to perfect the proposed appropriation. If the

4-16  application is rejected, the applicant may take no steps toward

4-17  the prosecution of the proposed work or the diversion and use of the

4-18  public water while the rejection continues in force.

4-19      [6.] 7. The provisions of subsections 1 to [4,] 5, inclusive, do

4-20  not apply to an application for an environmental permit.

4-21      [7.] 8. The provisions of subsection [5] 6 do not authorize the

4-22  recipient of an approved application to use any state land

4-23  administered by the Division of State Lands of the State Department

4-24  of Conservation and Natural Resources without the appropriate

4-25  authorization for that use from the State Land Registrar.

4-26      [8.] 9. As used in this section, “interbasin transfer of ground

4-27  water” means a transfer of ground water for which the proposed

4-28  point of diversion is in a different basin than the proposed place of

4-29  beneficial use.

4-30      Sec. 3.  NRS 533.386 is hereby amended to read as follows:

4-31      533.386  1.  The State Engineer shall confirm that the report of

4-32  conveyance required by paragraph (a) of subsection 1 of NRS

4-33  533.384 includes all material required by that subsection and that:

4-34      (a) The report is accompanied by the prescribed fee;

4-35      (b) No conflict exists in the chain of title that can be determined

4-36  by the State Engineer from the conveyance documents or from other

4-37  information on file in the office of the State Engineer; and

4-38      (c) The State Engineer is able to determine the rate of diversion

4-39  and the amount of water conveyed in acre-feet or million gallons

4-40  from the conveyance documents or from other information on file in

4-41  the office of the State Engineer.

4-42      2.  If the State Engineer confirms a report of conveyance

4-43  pursuant to subsection 1, he shall in a timely manner provide a

4-44  notice of the confirmation to the person who submitted the report

4-45  of conveyance. The notice must include, without limitation, a

5-1  statement indicating that neither the confirmation of the report of

5-2  conveyance nor the report of conveyance, if the report sets forth

5-3  the amount of water conveyed, guarantees that:

5-4  (a) The water right is in good standing with the office of the

5-5  State Engineer; or

5-6  (b) The amount of water referenced in the notice or in the

5-7  report of conveyance is the actual amount of water that a person is

5-8  entitled to use upon conveyance of the application or permit to

5-9  appropriate any of the public waters, the certificate of

5-10  appropriation, the adjudicated or unadjudicated water right, or the

5-11  application or permit to change the place of diversion, manner of

5-12  use or place of use of water.

5-13      3.  If the State Engineer determines that the report of

5-14  conveyance is deficient, he shall reject the report of conveyance and

5-15  return it to the person who submitted it with:

5-16      (a) An explanation of the deficiency; and

5-17      (b) A notice stating that the State Engineer will not confirm a

5-18  report of conveyance that has been rejected unless the report is

5-19  resubmitted with the material required to cure the deficiency. The

5-20  notice must also include a statement of the provisions of subsection

5-21  [3.] 4.

5-22      [3.] 4. The State Engineer shall not consider or treat the person

5-23  to whom:

5-24      (a) An application or permit to appropriate any of the public

5-25  waters;

5-26      (b) A certificate of appropriation;

5-27      (c) An adjudicated or unadjudicated water right; or

5-28      (d) An application or permit to change the place of diversion,

5-29  manner of use or place of use of water,

5-30  is conveyed as the owner or holder of the application, right,

5-31  certificate or permit for the purposes of this chapter, including,

5-32  without limitation, all advisements and other notices required of the

5-33  State Engineer and the granting of permits to change the place of

5-34  diversion, manner of use or place of use of water, until a report of

5-35  the conveyance is confirmed pursuant to subsection 1.

5-36      Sec. 4.  NRS 538.171 is hereby amended to read as follows:

5-37      538.171  1.  The Commission shall receive, protect and

5-38  safeguard and hold in trust for the State of Nevada all water and

5-39  water rights, and all other rights, interests or benefits in and to the

5-40  waters described in NRS 538.041 to 538.251, inclusive, and to the

5-41  power generated thereon, held by or which may accrue to the State

5-42  of Nevada under and by virtue of any Act of the Congress of the

5-43  United States or any agreements, compacts or treaties to which the

5-44  State of Nevada may become a party, or otherwise.

6-1  2.  Except as otherwise provided in this subsection, applications

6-2  for the original appropriation of such waters, or to change the place

6-3  of diversion, manner of use or place of use of water covered by the

6-4  original appropriation, must be made to the Commission in

6-5  accordance with the regulations of the Commission. In considering

6-6  such an application, the Commission shall use the criteria set forth

6-7  in subsection [3] 4 of NRS 533.370. The Commission’s action on

6-8  the application constitutes the recommendation of the State of

6-9  Nevada to the United States for the purposes of any federal action

6-10  on the matter required by law. The provisions of this subsection do

6-11  not apply to supplemental water.

6-12      3.  The Commission shall furnish to the State Engineer a copy

6-13  of all agreements entered into by the Commission concerning the

6-14  original appropriation and use of such waters. It shall also furnish to

6-15  the State Engineer any other information it possesses relating to the

6-16  use of water from the Colorado River which the State Engineer

6-17  deems necessary to allow him to act on applications for permits for

6-18  the subsequent appropriation of these waters after they fall within

6-19  the State Engineer’s jurisdiction.

6-20      4.  Notwithstanding any provision of chapter 533 of NRS, any

6-21  original appropriation and use of the waters described in subsection

6-22  1 by the Commission or by any entity to whom or with whom the

6-23  Commission has contracted the water is not subject to regulation by

6-24  the State Engineer.

6-25      Sec. 5.  1.  On or before June 30, 2005, the State Engineer

6-26  shall quantify in acre-feet the amount of water that has been

6-27  beneficially used for the purpose set forth in the certificate of

6-28  appropriation for each certificate of appropriation which:

6-29      (a) Is issued pursuant to NRS 533.425 to appropriate water:

6-30          (1) In a county whose population is 400,000 or more; and

6-31          (2) From a basin for which the State Engineer keeps

6-32  pumping records; and

6-33      (b) Expresses the amount of appropriation only in terms of cubic

6-34  feet per second.

6-35      2.  The State Engineer shall notify each owner of a water right

6-36  described in subsection 1, as determined in the records of the Office

6-37  of the State Engineer, by registered or certified mail:

6-38      (a) That the water right has been quantified as required by

6-39  subsection 1; and

6-40      (b) Of the amount of water that the State Engineer has

6-41  determined was beneficially used for the purpose set forth in the

6-42  certificate of appropriation.

6-43      3.  The State Engineer shall file a notice with the office of the

6-44  county recorder of the county in which water is appropriated

6-45  pursuant to a certificate of appropriation described in subsection 1.

7-1  The notice must contain the information required to be included in

7-2  the notice given to the owner of the water right pursuant to

7-3  subsection 2.

7-4  Sec. 6.  The amendatory provisions of section 2 of this act

7-5  apply to:

7-6  1.  Each application described in NRS 533.370 that is made on

7-7  or after July 1, 2003; and

7-8  2.  Each such application that is pending with the office of the

7-9  State Engineer on July 1, 2003.

7-10      Sec. 7.  1.  This act becomes effective on July 1, 2003.

7-11      2.  Section 5 of this act expires by limitation on June 30, 2005.

 

7-12  H