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 this subsection and

3-8  subsection [6,] 7, the State Engineer shall approve or reject each

3-9  application within 1 year after the final date for filing a protest.

3-10  [However:

3-11      (a) Action may be postponed by the] The State Engineer may:

3-12      (a) Postpone action upon written authorization to do so by the

3-13  applicant or, if an application is protested, by the protestant and the

3-14  applicant . [; and]

3-15      (b) Postpone action if the purpose for which the application

3-16  was made is municipal use.

3-17      (c) In areas where studies of water supplies have been

3-18  determined to be necessary by the State Engineer pursuant to NRS

3-19  533.368 or where court actions are pending, [the State Engineer

3-20  may] withhold action until it is determined there is unappropriated

3-21  water or the court action becomes final.

3-22      3.  If the State Engineer does not act upon an application

3-23  within 1 year after the final date for filing a protest, the

3-24  application remains active until acted upon by the State Engineer.

3-25      4.  Except as otherwise provided in subsection [6,] 7, where

3-26  there is no unappropriated water in the proposed source of supply,

3-27  or where its proposed use or change conflicts with existing rights, or

3-28  with protectible interests in existing domestic wells as set forth in

3-29  NRS 533.024, or threatens to prove detrimental to the public

3-30  interest, the State Engineer shall reject the application and refuse to

3-31  issue the requested permit. If a previous application for a similar use

3-32  of water within the same basin has been rejected on those grounds,

3-33  the new application may be denied without publication.

3-34      [4.] 5. In determining whether an application for an interbasin

3-35  transfer of ground water must be rejected pursuant to this section,

3-36  the State Engineer shall consider:

3-37      (a) Whether the applicant has justified the need to import the

3-38  water from another basin;

3-39      (b) If the State Engineer determines that a plan for conservation

3-40  of water is advisable for the basin into which the water is to be

3-41  imported, whether the applicant has demonstrated that such a plan

3-42  has been adopted and is being effectively carried out;

3-43      (c) Whether the proposed action is environmentally sound as it

3-44  relates to the basin from which the water is exported;

4-1  (d) Whether the proposed action is an appropriate long-term use

4-2  which will not unduly limit the future growth and development in

4-3  the basin from which the water is exported; and

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

4-5  relevant.

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

4-7  of the State Engineer must be in writing and include findings of fact,

4-8  conclusions of law and a statement of the underlying facts

4-9  supporting the findings of fact. The written decision may take the

4-10  form of a transcription of an oral ruling. The rejection or approval of

4-11  an application must be endorsed on a copy of the original

4-12  application, and a record must be made of the endorsement in the

4-13  records of the State Engineer. The copy of the application so

4-14  endorsed must be returned to the applicant. Except as otherwise

4-15  provided in subsection [7,] 8, if the application is approved, the

4-16  applicant may, on receipt thereof, proceed with the construction of

4-17  the necessary works and take all steps required to apply the water to

4-18  beneficial use and to perfect the proposed appropriation. If the

4-19  application is rejected, the applicant may take no steps toward

4-20  the prosecution of the proposed work or the diversion and use of the

4-21  public water while the rejection continues in force.

4-22      [6.] 7. The provisions of subsections 1 to [4,] 5, inclusive, do

4-23  not apply to an application for an environmental permit.

4-24      [7.] 8. The provisions of subsection [5] 6 do not authorize the

4-25  recipient of an approved application to use any state land

4-26  administered by the Division of State Lands of the State Department

4-27  of Conservation and Natural Resources without the appropriate

4-28  authorization for that use from the State Land Registrar.

4-29      [8.] 9. As used in this section, “interbasin transfer of ground

4-30  water” means a transfer of ground water for which the proposed

4-31  point of diversion is in a different basin than the proposed place of

4-32  beneficial use.

4-33      Sec. 3.  NRS 533.386 is hereby amended to read as follows:

4-34      533.386  1.  The State Engineer shall confirm that the report of

4-35  conveyance required by paragraph (a) of subsection 1 of NRS

4-36  533.384 includes all material required by that subsection and that:

4-37      (a) The report is accompanied by the prescribed fee;

4-38      (b) No conflict exists in the chain of title that can be determined

4-39  by the State Engineer from the conveyance documents or from other

4-40  information on file in the office of the State Engineer; and

4-41      (c) The State Engineer is able to determine the rate of diversion

4-42  and the amount of water conveyed in acre-feet or million gallons

4-43  from the conveyance documents or from other information on file in

4-44  the office of the State Engineer.

5-1  2.  If the State Engineer confirms a report of conveyance

5-2  pursuant to subsection 1, he shall in a timely manner provide a

5-3  notice of the confirmation to the person who submitted the report

5-4  of conveyance. The notice must include, without limitation, a

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

5-6  conveyance nor the report of conveyance, if the report sets forth

5-7  the amount of water conveyed, guarantees that:

5-8  (a) The water right is in good standing with the office of the

5-9  State Engineer; or

5-10      (b) The amount of water referenced in the notice or in the

5-11  report of conveyance is the actual amount of water that a person is

5-12  entitled to use upon conveyance of the application or permit to

5-13  appropriate any of the public waters, the certificate of

5-14  appropriation, the adjudicated or unadjudicated water right, or the

5-15  application or permit to change the place of diversion, manner of

5-16  use or place of use of water.

5-17      3.  If the State Engineer determines that the report of

5-18  conveyance is deficient, he shall reject the report of conveyance and

5-19  return it to the person who submitted it with:

5-20      (a) An explanation of the deficiency; and

5-21      (b) A notice stating that the State Engineer will not confirm a

5-22  report of conveyance that has been rejected unless the report is

5-23  resubmitted with the material required to cure the deficiency. The

5-24  notice must also include a statement of the provisions of subsection

5-25  [3.] 4.

5-26      [3.] 4. The State Engineer shall not consider or treat the person

5-27  to whom:

5-28      (a) An application or permit to appropriate any of the public

5-29  waters;

5-30      (b) A certificate of appropriation;

5-31      (c) An adjudicated or unadjudicated water right; or

5-32      (d) An application or permit to change the place of diversion,

5-33  manner of use or place of use of water,

5-34  is conveyed as the owner or holder of the application, right,

5-35  certificate or permit for the purposes of this chapter, including,

5-36  without limitation, all advisements and other notices required of the

5-37  State Engineer and the granting of permits to change the place of

5-38  diversion, manner of use or place of use of water, until a report of

5-39  the conveyance is confirmed pursuant to subsection 1.

5-40      Sec. 3.5. NRS 534.270 is hereby amended to read as follows:

5-41      534.270  1.  Upon receipt of an application for a permit to

5-42  operate a project, the State Engineer shall endorse on the application

5-43  the date it was received and keep a record of the application. He

5-44  shall conduct an initial review of the application within 45 days after

5-45  receipt of the application. If the State Engineer determines in the

6-1  initial review that the application is incomplete, he shall notify the

6-2  applicant. The application is incomplete until the applicant files all

6-3  the information requested in the application. The State Engineer

6-4  shall determine whether the application is correct within 180 days

6-5  after receipt of a complete application. The State Engineer may

6-6  request additional information from the applicant. The State

6-7  Engineer may conduct such independent investigations as are

6-8  necessary to determine whether the application should be approved

6-9  or rejected.

6-10      2.  If the application is determined to be complete and correct,

6-11  the State Engineer, within 30 days after such a determination or a

6-12  longer period if requested by the applicant, shall cause notice of the

6-13  application to be given once each week for 2 consecutive weeks in a

6-14  newspaper of general circulation in the county or counties in which

6-15  persons reside who could reasonably be expected to be affected by

6-16  the project. The notice must state:

6-17      (a) The legal description of the location of the proposed project;

6-18      (b) A brief description of the proposed project including its

6-19  capacity;

6-20      (c) That any person who may be adversely affected by the

6-21  project may file a written protest with the State Engineer within 30

6-22  days after the last publication of the notice;

6-23      (d) The date of the last publication;

6-24      (e) That the grounds for protesting the project are limited to

6-25  whether the project would be in compliance with subsection 2 of

6-26  NRS 534.250;

6-27      (f) The name of the applicant; and

6-28      (g) That a protest must:

6-29          (1) State the name and mailing address of the protester;

6-30          (2) Clearly set forth the reason why the permit should not be

6-31  issued; and

6-32          (3) Be signed by the protester or the protester’s agent or

6-33  attorney.

6-34      3.  A protest to a proposed project:

6-35      (a) May be made by any person who may be adversely affected

6-36  by the project;

6-37      (b) Must be in writing;

6-38      (c) Must be filed with the State Engineer within 30 days after

6-39  the last publication of the notice;

6-40      (d) Must be upon a ground listed in subsection 2 of

6-41  NRS 534.250;

6-42      (e) Must state the name and mailing address of the protester;

6-43      (f) Must clearly set forth the reason why the permit should not

6-44  be issued; and

7-1  (g) Must be signed by the protester or the protester’s agent or

7-2  attorney.

7-3  4.  Upon receipt of a protest, the State Engineer shall advise the

7-4  applicant by certified mail that a protest has been filed.

7-5  5.  Upon receipt of a protest, or upon his own motion, the State

7-6  Engineer may hold a hearing. Not less than 30 days before the

7-7  hearing, the State Engineer shall send by certified mail notice of the

7-8  hearing to the applicant and any person who filed a protest.

7-9  6.  The State Engineer shall either approve or deny each

7-10  application within 1 year after the final date for filing a protest,

7-11  unless he has received a written request from the applicant to

7-12  postpone his decision or, in the case of a protested application, from

7-13  both the protester and the applicant. The State Engineer may delay

7-14  action on the application pursuant to paragraph [(b)] (c) of

7-15  subsection 2 of NRS 533.370.

7-16      7.  Any person aggrieved by any decision of the State Engineer

7-17  made pursuant to subsection 6, may appeal that decision to the

7-18  district court pursuant to NRS 533.450.

7-19      Sec. 4.  NRS 538.171 is hereby amended to read as follows:

7-20      538.171  1.  The Commission shall receive, protect and

7-21  safeguard and hold in trust for the State of Nevada all water and

7-22  water rights, and all other rights, interests or benefits in and to the

7-23  waters described in NRS 538.041 to 538.251, inclusive, and to the

7-24  power generated thereon, held by or which may accrue to the State

7-25  of Nevada under and by virtue of any Act of the Congress of the

7-26  United States or any agreements, compacts or treaties to which the

7-27  State of Nevada may become a party, or otherwise.

7-28      2.  Except as otherwise provided in this subsection, applications

7-29  for the original appropriation of such waters, or to change the place

7-30  of diversion, manner of use or place of use of water covered by the

7-31  original appropriation, must be made to the Commission in

7-32  accordance with the regulations of the Commission. In considering

7-33  such an application, the Commission shall use the criteria set forth

7-34  in subsection [3] 4 of NRS 533.370. The Commission’s action on

7-35  the application constitutes the recommendation of the State of

7-36  Nevada to the United States for the purposes of any federal action

7-37  on the matter required by law. The provisions of this subsection do

7-38  not apply to supplemental water.

7-39      3.  The Commission shall furnish to the State Engineer a copy

7-40  of all agreements entered into by the Commission concerning the

7-41  original appropriation and use of such waters. It shall also furnish to

7-42  the State Engineer any other information it possesses relating to the

7-43  use of water from the Colorado River which the State Engineer

7-44  deems necessary to allow him to act on applications for permits for

8-1  the subsequent appropriation of these waters after they fall within

8-2  the State Engineer’s jurisdiction.

8-3  4.  Notwithstanding any provision of chapter 533 of NRS, any

8-4  original appropriation and use of the waters described in subsection

8-5  1 by the Commission or by any entity to whom or with whom the

8-6  Commission has contracted the water is not subject to regulation by

8-7  the State Engineer.

8-8  Sec. 5.  1.  On or before June 30, 2005, the State Engineer

8-9  shall quantify in acre-feet the amount of water that has been

8-10  beneficially used for the purpose set forth in the certificate of

8-11  appropriation for each certificate of appropriation which:

8-12      (a) Is issued pursuant to NRS 533.425 to appropriate water:

8-13          (1) In a county whose population is 400,000 or more; and

8-14          (2) From a basin for which the State Engineer keeps

8-15  pumping records; and

8-16      (b) Expresses the amount of appropriation only in terms of cubic

8-17  feet per second.

8-18      2.  The State Engineer shall notify each owner of a water right

8-19  described in subsection 1, as determined in the records of the Office

8-20  of the State Engineer, by registered or certified mail:

8-21      (a) That the water right has been quantified as required by

8-22  subsection 1; and

8-23      (b) Of the amount of water that the State Engineer has

8-24  determined was beneficially used for the purpose set forth in the

8-25  certificate of appropriation.

8-26      3.  The State Engineer shall file a notice with the office of the

8-27  county recorder of the county in which water is appropriated

8-28  pursuant to a certificate of appropriation described in subsection 1.

8-29  The notice must contain the information required to be included in

8-30  the notice given to the owner of the water right pursuant to

8-31  subsection 2.

8-32      Sec. 6.  The amendatory provisions of section 2 of this act

8-33  apply to:

8-34      1.  Each application described in NRS 533.370 that is made on

8-35  or after July 1, 2003; and

8-36      2.  Each such application that is pending with the office of the

8-37  State Engineer on July 1, 2003.

8-38      Sec. 7.  1.  This act becomes effective on July 1, 2003.

8-39      2.  Section 5 of this act expires by limitation on June 30, 2005.

 

8-40  H