MINUTES OF MEETING
ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS
Sixty-seventh Session
March 24, 1993
The Assembly Committee on Government Affairs was called to order by Chairman Val Z. Garner at 8:03 a.m. Wednesday, March 24, 1993, in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Val Z. Garner, Chairman
Mr. Rick C. Bennett, Vice Chairman
Mrs. Kathy M. Augustine
Mr. Douglas A. Bache
Mrs. Marcia de Braga
Mr. Pete Ernaut
Mrs. Vivian L. Freeman
Mr. Lynn Hettrick
Mrs. Erin Kenny
Mrs. Joan A. Lambert
Mr. James W. McGaughey
Mr. Roy Neighbors
Mrs. Gene W. Segerblom
Mr. Wendell P. Williams
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Assemblyman Joseph E. Dini, Jr., District No. 38.
STAFF MEMBERS PRESENT:
Ms. Dana Bennett
OTHERS PRESENT:
Mr. Mike Turnipseed, State Division of Water Resources; Ms. Peggy Twedt, Deputy Attorney General for State Engineer; Mr. Gordon DePaoli, Walker River Irrigation District, Edgewood Water Company; Mr. Charles Lawson, Nevada Rural Water Association; Mr. Richard Arden, SEA Engineers; Ms. Dorothy Timian-Palmer, Utility Director for Carson City; Mr. Ross deLipkau, Hill Cassas & deLipkau; Mr. George Thiel, Consultant and Civil Engineer; Mr. Bill Brush, Washoe Water Protection Association; Mr. Mike Oliver; Mr. Gary Tope; Mr. T.M. Thompson, Diamond Springs Ranch; Mr. Bob Fulkerson, Executive Director of Citizen Alert; Mr. Ray D. May; Ms. Reynese Wilson; Mr. Zane Miles, Lander County District Attorney; Mr. Charles Watson, Director, Nevada Outdoor Recreation Association; Mr. Jim Davis, Pyramid Lake Paiute Tribe; Mr. Robert Pelcyger, Attorney for Pyramid Lake Paiute Tribe; Mr. Mervin Wright, Jr., Pyramid Lake Paiute Tribe; Mr. Jack Warnecke; Mr. Ned Eyre; Mr. Joe Johnson, Sierra Club; Ms. Juanita Cox.
ASSEMBLY BILL 337 - Clarifies certain provisions of water law and ratifies past actions of state engineer.
Assemblyman Joseph E. Dini, Jr., Assembly District No. 38, testified as a proponent of AB 337 (Exhibit C).
Mr. Mike Turnipseed, State Engineer, Division of Water Resources, gave testimony in favor of AB 337 and distributed a briefing paper relating several cases regarding administration of the Water Law (Exhibit D). He indicated AB 337 clarified the term "water already appropriated" as being water rights which were in permit form.
Mr. Turnipseed referred to a memorandum from Mr. Roland Westergard (Exhibit E) which interpreted the law in the same manner as he did.
Mr. Turnipseed stated AB 337 was asking the legislature to ratify the actions of the State Engineer for the past 86 years. He indicated with passage of AB 337 a statement would be made clarifying what the 1907 legislature meant when it said, "water already appropriated may be changed by Chapter 533.325 and 533.345." Mr. Turnipseed stressed it would affect every county in the state and almost every municipality, mining company and agricultural interest. He mentioned the Division had 367 changes and applications before them as of March 9.
Mr. Turnipseed referenced the second column from the right on page 2 of Appendix 1 in Exhibit D labeled "ppm," indicating the "y" in the first column showed changes in point of diversion, the second "y" showed changes in point of use, and the "y" in the third column represented changes in manner of use.
Ms. Peggy Twedt, Deputy Attorney General for State Engineer, addressed the retroactive provisions in AB 337, indicating Section 3 specifically provided the definition of water already appropriated would apply, but would also apply retroactively. She indicated Section 2 stated reasons why there should be retroactive application of the definition. Ms. Twedt said if the legislature rejected the retroactive provisions, the result would create chaos as to the thousands of change applications which had already been approved over the past 86 years. She pointed out since 1907 state engineers had approved thousands of change applications of unperfected rights, rights which were not put to beneficial use at the time the change application was filed with the State Engineer's office. Ms. Twedt said, "If the legislature rejects a retroactive application, basically will not acknowledge what state engineers have done for the past 86 years. It puts into question every single one of those applications that were approved." She felt the chaos created by not applying AB 337 retroactively would create a lot of litigation she would have to defend and the possibility of litigation for the thousands of water users who have depended on the State Engineer's interpretation of water law for the past 86 years. She recommended the committee pass AB 337 and retain the retroactive language.
Mrs. de Braga asked if the new language would have any effect on the water rights other than permitted water rights and would it open the state to water speculation.
Mr. Turnipseed replied he did not believe it would. Speculation could be treated in a couple of ways, either up front when the application is first approved, or in the statute which dealt with extensions of time. He indicated in basins which had less competition for water, the Division had been fairly liberal in granting extensions of time; but in basins where there was a lot of competition for water, the Division had been fairly short with extensions of time. Mr. Turnipseed did not feel it would address anything other than permitted water rights as certificated rights, deed rights and claims of pre-statutory rights were already presumed to have gone to beneficial use and could be changed under the current definition "water already appropriated" in NRS 533.325 and 533.345.
Mrs. Freeman questioned if there would be any objection to language in AB 337 which would prevent future speculation.
Mr. Turnipseed indicated he would have no objections to that sort of language, but did not feel it belonged in NRS 533.325 or 533.345, but in NRS 533.370. He reiterated Assemblyman Dini's statement there were only three criteria in approving an original application: 1) was there unappropriated water in the source, 2) would it interfere with existing rights, and 3) would it be in the public interest.
Chairman Garner asked Mr. Turnipseed to verify his testimony which indicated Judge Handelsman had invited the legislature to come forward with this kind of legislation and had stated the legislature should be the body to decide this issue. Mr. Turnipseed agreed (see page 6 of Exhibit D).
Chairman Garner referred to Mr. Turnipseed's comment that virtually every segment of Nevada's water users would be affected if the court's rulings were not changed by legislation. Mr. Turnipseed replied that meant any segment which had permits. He mentioned the list of applications before the Division as referenced in Exhibit D.
Mrs. de Braga asked if the applications he referenced were mostly intra-basin transfers. Mr. Turnipseed indicated they were.
Mrs. de Braga said it seemed to her there was a big difference, if the law applied to "inter-basin" or "intra-basin" transfers. Mr. Turnipseed replied, "What it does, it allows for flexibility for a municipality to expand its service area, or to add a well to its system, or put a well in a different part of its distribution system, whether that well would be in the basin or outside the basin. There is existing legislation that deals with trans-county diversion of water, the 1991 session of the Legislature addressed that, allowed the county of origin to assess a tax on any water exported out of the county and there are many, many cases where inter-basin transfers of water are already taking place in the state."
Mrs. de Braga questioned if the out-of-basin transfers had to be proven unperfected before they were transferred. Mr. Turnipseed replied no they did not.
Mr. Gordon DePaoli, Walker River Irrigation District, Edgewood Water Company, testified in support of AB 337 (Exhibit F).
Mr. Hettrick referenced page 9 of Exhibit F, "The public at large is protected...and with diligence." asking if there was any reason to expand the definition of "public interest" or "due diligence and good faith." Mr. DePaoli replied he felt the terms were very broad and left a lot of discretion in the State Engineer's office and any effort to define them would probably narrow rather than expand them. He added he did not have any recommendations to define or narrow those concepts.
Mr. Hettrick stated, "I guess the question is, if we are going to change the water law and if we are going to concentrate this power, we may not be so fortunate in the future as to have someone that is as even-handed as they may have been in the past, and in light of the fact this essentially is coming down to those two points, the way it appears to me, I just wonder if that doesn't have some merit."
Mr. DePaoli answered if that was to be done, it ought to be done entirely separate from this legislation, and in his judgment this legislation was not a change in the water law.
Mrs. Lambert asked Mr. DePaoli to comment on the study done by Nevada Water Facts and Division of Water Planning, which showed all the perennial yields of the basins and outstanding permits. She questioned how he would suggest dealing with problems where there might have been overestimations of the amount of water available in the past and there were outstanding permits which were not yet perfected in the basins.
Mr. DePaoli replied he thought the State Engineer's office had been much tougher in granting or denying applications for extensions of time on permits which had not been perfected. He also indicated he felt in certain situations the State Engineer had considered whether some of the perfected and certificated permits had been lost through forfeiture and nonuse. Mr. DePaoli said the way to deal with that would be to not grant extensions of time, apply the diligence and good faith statute rigorously and look at the forfeiture statute.
Mrs. Lambert questioned if the good faith and due diligence portion of the statute needed to be strengthened for the extensions in areas where water was not being put to use but there were outstanding permits. Mr. DePaoli indicated there could probably be some things done in placing absolute time limits and limitations on numbers of extensions and requirements that applications for extensions be published and allow protest.
Further discussion ensued between committee members and Mr. DePaoli.
Mr. Charles Lawson, Vice Chairman of Nevada Rural Water Association, testified in favor of AB 337 stating he represented 46 utilities throughout the state. He indicated he knew there was concern with water speculation and felt that could be addressed in a separate section of the statutes.
Mr. Richard Arden, SEA Engineers, testified he had represented many clients and water issues over the past 30 years which had relied on the State Engineer's decision to change the place of use, manner of use or point of diversion. He felt AB 337 was a very important public policy and would put the water law into chaos if it was not passed.
Ms. Dorothy Timian-Palmer, Utility Director for Carson City, discussed management of the municipal system. She stated Carson City had a variety of water sources, including Marlette-Hobart system, Carson River, Ash and Kings Canyon creeks, and Eagle, Dayton and Washoe valley groundwater systems. Ms. Timian-Palmer stressed Carson City practiced what was known as conjunctive use management, which meant water was pulled from the surface sources whenever they were available and left the ground water table alone except when absolutely necessary. She said AB 337 would allow Carson to continue to operate in that manner. Ms. Timian-Palmer remarked, "If we have a contamination problem and we have to move to another well, we would not be able to do that without AB 337 the way the courts are looking at water law. If AB 337 doesn't go forward, what would occur is Carson City would start pumping just to prove up, or put water to beneficial use, and that's a waste of water."
Mr. Ross deLipkau, member of Reno law firm Hill Cassas & deLipkau, indicated he had been a former employee of the State Engineer's office and for the past 20 years had specialized in water rights law. He agreed with all previous testimony and felt if AB 337 was not passed disaster and chaos would follow and the water law would cease to exist. Mr. deLipkau stated municipalities and water companies would have to file literally hundreds of applications to appropriate water. He stated in some cases if communities had to file new applications, they would not be able to get approval as the basins had already been closed to further permits. Mr. deLipkau further stressed this bill would not lead to water speculation as there were numerous laws on the books which would prevent it.
Mrs. de Braga questioned how areas from where water was exported from were protected if there was no proof water existed in the area. Mr. deLipkau answered the State Engineer, under NRS 533.370, would not grant a permit if no unappropriated water was available.
Mr. George Thiel, Consultant and Civil Engineer, testified in favor of AB 337, stating he felt this clarification was a good change and urged passage and implementation.
Mr. Bill Brush, Washoe Water Protection Association (WWPA), indicated he would not testify at this time but asked the WWPA position letter of March 22 (Exhibit G) be entered into the record in opposition to AB 337.
Mr. Mike Oliver testified in opposition to AB 337 (Exhibit F).
Mr. Barry Bouchard, President, Lemon Valley Association, stated he was opposed to any legislation which would further the concept of "so-called paper water rights."
Mr. Gary Tope, testified in opposition to AB 337, stating he felt the most important thing on the water issue was, "The water in this state belongs to the taxpayers of this state, it don't belong to any special group or to anybody else. The law says that if you want water, you apply for it. If water is available you get a permit. You use it or you lose it... If you have a permit and you don't use it, then it should go back to the next person in line."
Mr. T.M. Thompson, Diamond Springs Ranch, testified against AB 337 (Exhibit I).
Mrs. de Braga questioned if the permits granted in Diamond Valley were for agricultural use and were they transfers or well permits. Mr. Thompson replied the permits were for in-basin agricultural use.
Mr. Bob Fulkerson, Executive Director of Citizen Alert, indicated Citizen Alert was a statewide watch dog organization founded in 1975 and was comprised of approximately 3,200 members from every county in Nevada. Mr. Fulkerson stated the water facts booklet published by the Nevada Resources Planning Division was an excellent source of information which painted a grim picture of Nevada groundwater basins. He said it showed 80 basins had been very seriously over-appropriated, which could lead to desertification of wide areas of Nevada.
Mr. Fulkerson felt previous testimony from the proponents of AB 337 indicated a concern to preserve prior decisions made by the State Engineer. He stated there was no way under Nevada water law a previously approved transfer which had become final could be challenged or reopened.
Mr. Fulkerson said, "We see the real reason for AB 337, Judge Handelsman made a decision last summer that threw the Truckee Meadows project into massive disarray, and then a bill draft request showed up at the Legislative Counsel Bureau to overturn that decision. This bill would be like manna from heaven to the water importers - the people behind Eco-Vision, the Truckee Meadows Project and the Las Vegas water grab - because it's going to allow these water rights to be changed before they are proved up or before they are certificated." He felt AB 337 would allow water speculators to tie up large amounts of ground water and exact payment from urban entities for those water rights.
Mr. Fulkerson suggested there needed to be a requirement for water rights to be perfected before inter-basin transfers were approved, which would require proof the water was available, physically developed and used for a number of years to test the impact of pumping on a sustained basis. He felt some of the reasoning by proponents was valid but should be addressed in other legislation.
Mrs. de Braga asked if Mr. Fulkerson would have a problem with AB 337 if it was restricted to intra-basin transfers. Mr. Fulkerson replied he did not think so.
Mrs. Kenny asked Mr. Fulkerson if he thought this bill was saying something other than what is currently being practiced. Mr. Fulkerson answered it was clearly already happening, it favored speculators and sought to overturn the court decisions made by the Ninth Circuit court, the Alpine decision and Judge Handelsman's decision.
Further discussion ensued between committee members and Mr. Fulkerson.
Mr. Ray D. May testified in opposition to AB 337. He related a personal incident, "In 1979, I purchased 1,280 acres in Honey Lake Valley. I immediately applied for water permits. I, like several of my neighbors ... were all told the basin was closed and no more permits would be issued ever. The Division of Water Resources had let one person with 2,000 acres of land have all the available water in the valley. Mr. Newman, the State Engineer at that time, informed us even if the outstanding permits came back for whatever reason, they would not be ever reissued. He, of course, directed us to buy them from the party that had them tied up without using them. I took Mr. Newman at his word and bought the permits from the guy that had them. The Division of Water Resources then lost my deeds to the water permits I had purchased. They lost them for a period of one and a half years. A few years later, the Division of Water Resources, after 1983, again started issuing free water permits, over 20,000 acres in the basin they told me that they would never have any more permits issued ever. I found out from the water board by accident. If the present system has worked for 80 years plus, why change the system... This law change deprives wronged parties from appealed rights... This bill change protects a lot of people, but what about the people that the law changes will adversely affect that rely on current law?"
Mr. Ernaut questioned if Mr. May had inquired about water rights prior to purchasing his land. Mr. May indicated he had not.
Ms. Reynese Wilson testified in support of Mr. May, indicating he had been struggling with the problem for some time. She felt this law, if passed, would give speculators more freedom and did not think it was right.
Mr. Zane Miles, Lander County District Attorney, stated he was speaking as the District Attorney and not for the Board of County Commissioners as they had not had an opportunity to meet to ratify the statements he intended to make. Mr. Miles indicated a written statement would be forwarded from the Board after its April 1 meeting to be included in the committee records.
Mr. Miles felt this bill was unfortunate in that it proposed to continue actions by the State Engineer which were never legal in the first place, the effect of which would be to further the activities and concerns of the water speculators who currently infested the state. He did not think there was any need for the bill as far as retroactive application to protect 80 years worth of water law since the statute of limitations for appealing the State Engineer's decisions was 30 days. Mr. Miles suggested if the committee wanted to be certain protection was provided, it could be accomplished by limiting the bill to retroactive application that legitimized what the State Engineer had done in the past and leave the law alone for the future, as it was the only protection most of Nevada had against water speculators.
Mr. Miles felt another serious danger would be to allow transfer of unperfected agricultural rights out of the basin as the transferred water would be lost entirely to the area.
He further thought the committee had been misled with the statement that without AB 337 it would be impossible to move an agricultural well. He indicated that was not true as the definition used by the State Engineer was "a well site extends 300 feet in any direction, or within the 40-acre lot," which meant a farmer could put a well down anywhere within 40 acres without obtaining any sort of a change permit. In other words, he said, the definition of "well-site" was quite large.
Mr. McGaughey questioned how Mr. Miles would propose to handle the restriction and water speculation. Mr. Miles replied a separate bill would be needed, but also AB 337 would affect and permit water speculation and it needed to be addressed or amended to simply apply to the previously granted permits.
Further discussion was held regarding handling of water speculation.
Mr. McGaughey asked if Mr. Miles and others who had been in water law could propose a solution to the problem in written form. Mr. Miles indicated he would be happy to work with others to come up with language which would address the problems.
Mr. Charles Watson, Director of Nevada Outdoor Recreation Association, said the association was a public land environmental task force which operated in several areas of the west trying to bring the forum of environmental management to public lands. He indicated the testimony of Bob Fulkerson should be very carefully paid attention to, and felt Mr. Thompson's example showed a gross mismanagement by the State Engineer.
Mr. Jim Davis, Pyramid Lake Paiute Tribe, introduced Mr. Mervin Wright, Jr., and Mr. Robert Pelcyger.
Mr. Mervin Wright, Jr., Pyramid Lake Paiute Tribe, testified in opposition to AB 337 (Exhibit J).
Mrs. de Braga indicated the committee had received previous testimony which stated AB 337 would not affect anything other than permitted water rights so Newlands Project would not be affected.
Mr. Wright stated that was understood as members of the tribe had discussed the issues with Speaker Dini. He pointed out the main concern was the impact to the reservation of the pending applications which were paper water rights as the water rights had not been determined to actually exist.
Mr. Ernaut indicated he was under the assumption the Newlands Project had been addressed in the negotiated settlement at which time AB 337 was basically the law, and this legislation would merely bring it back to what it had been. He asked if the settlement had been made under those rules, then why would it hinder the decision to return to those rules.
Mr. Wright deferred to Mr. Pelcyger.
Mr. Robert S. Pelcyger, Attorney for Pyramid Lake Paiute Tribe, stated it appeared to be designed so it would not apply to the Newlands Project as their rights were not based on state permits, which would eliminate one of the problems. Mr. Pelcyger recommended perhaps a more specific statement of the legislature's intent would be useful as the legislative history would not be readily accessible and 30 years from now someone might not appreciate that kind of fine distinction.
Mr. Ernaut then asked if it was Mr. Pelcyger's opinion this bill would not affect the negotiated settlement. Mr. Pelcyger replied if it excluded the issues with the Newlands Project it would not affect the negotiated settlement.
Mrs. Augustine inquired, "When I spoke with Mr. Davis yesterday, he was concerned about the five court decisions that had been made in your favor in different litigations. In Mr. Dini's testimony, he stated that this would not reverse any of those court decisions. How does that affect your testimony at this point?"
Mr. Pelcyger responded he felt there were some fine distinctions being made which he did not understand, but the clear effect of the bill if passed in its present form would clearly and specifically reverse Judge Handelsman's decision which was in the court system. Mr. Pelcyger indicated his complete agreement with Mr. Miles in that he felt there was no way the 80 years of previous transfer applications could be reopened as the rules were very tight regarding that, and the only case which would be affected by AB 337 would be the case which was properly appealed by the Pyramid Lake Tribe to Judge Handelsman in which the tribe had secured a favorable decision.
Mr. Ernaut asked Mr. Pelcyger to expand on the lawsuit.
Mr. Pelcyger explained: The Honey Lake project involved an effort to transfer water rights from the Honey Lake basin down to the Truckee Meadows. The permits in the case go back to 1978. The total amount of water authorized by the State Engineer for that water import project was 13,000 acre feet, of which less than 6,000 acre feet had been put to beneficial use. The State Engineer's decision authorized the inter-basin transfer of large amounts of unperfected water rights for agricultural use in the Honey Lake basin out of that basin to the Truckee Meadows area. The Pyramid Lake Tribe protested the application on several grounds, one of which was the State Engineer lacked the authority to transfer unperfected water rights. The State Engineer ruled against the Tribe so it was appealed to Judge Handelsman. Judge Handelsman ruled in favor of the Tribe and interpreted the term of "water already appropriated," to mean water which had already been put to use. Also, without the wording "beneficial use," found in the statute which indicates beneficial use shall be the basis, the measure, and the limit of water rights in the state, there is no water right.
Mr. Pelcyger further indicated the Tribe did not disagree with the State Engineer's statements regarding moving a well or amending the law to allow municipalities to change their boundaries, so long as it would remain in the same basin and the changes would not adversely affect anyone else. He further asserted, "The real thing that's driving this is the issue of water speculation, and especially the Honey Lake project, the Truckee Meadows project, because - in other words don't throw out the baby with the bath water, if there are some things which need to be addressed, limit it to those specific things, but you don't have to totally change the law to allow these massive inter-basin transfers for water rights that have never been perfected. Because as has been pointed out, the state gives those rights for free. People comply to the state, obtain a permit, they can come in, apply for agricultural use, tie up a whole basin, and make anybody who comes in who then wants to appropriate that water, they hold them up for ransom, and Washoe County has agreed to pay for these paper water rights, $30 million, in order to be able to transfer these water rights that have not been put to use and haven't been perfected."
Chairman Garner questioned, "Whether we pass AB 337 or not, it won't have any effect on the court's ruling as far as the Honey Lake thing is concerned, will it?"
Mr. Pelcyger replied, "Of course it would."
Chairman Garner asked if the court would not go forward with the litigation regardless of whether the bill was passed or not, and why would the Judge invite the legislature to enact this bill if he felt it would interfere with the court ruling.
Mr. Pelcyger answered, "No, what the Judge did, Mr. Chairman, he noted that all that he was doing was interpreting the law that was passed by the legislature, which is what the courts are there to do, and that's their job. He's saying, of course, that if the legislature disagrees, the legislature is free to change the law - which you certainly are, there's no question about that..."
Chairman Garner queried, "That doesn't stop any lawsuit, does it?"
Mr. Pelcyger replied if the law was changed, it would stop the lawsuit. He referenced Section 3 of AB 337 which would ratify each approval granted by the State Engineer, become effective upon approval of the bill, and be applied both retroactively as well as prospectively, which would in effect change the pending decision.
Extensive discussion ensued between committee members and Mr. Pelcyger regarding the court case and possible water speculation.
Mr. McGaughey questioned if there would be a future need for the water to remain where it was rather than divert it for other use.
Mr. Pelcyger replied, "I can answer that from the standpoint of the Pyramid Lake Paiute Tribe and Pyramid Lake Indian Reservation. The reason that we are opposed... to the Honey Lake Project is because, according to the reports of the U.S. Geological Survey, pumping from the Honey Lake basin, and especially from the Fish Springs Ranch, will draw groundwater away from two very important areas of the Pyramid Lake Indian Reservation - the Smoke Creek Desert and Pyramid Valley, both of which also contribute water to Pyramid Lake. So yes, we are opposed to the project on the grounds that we feel the water is needed in those areas, within the reservation and that this project would draw water away from it, and would bring it down to the Truckee Meadows area. Once it comes down, it's never going back up."
Further discussion followed.
Mr. Pelcyger concluded the discussion by indicating he would like to propose a specific amendment to make it clear the bill would not interfere in the pending cases as previously discussed which dealt with Honey Lake and Newlands Project.
Chairman Garner stated he would appreciate the proposed amendments to be presented in written form. He also indicated he would give the State Engineer and Deputy Attorney General an opportunity to reply to the previous testimony.
Mr. Jack Warnecke, a registered professional chemical engineer in California and Nevada, indicated his principal interest stemmed from his fears the Honey Lake project would go forward and the people of Washoe County would spend a lot of money and then find out it had been wasted as the quality of the water could not be guaranteed. Mr. Warnecke stated the stream flows going into Honey Lake basin would be considered part of that basin, and about two-thirds of the basin was in California. He said the major recharge of the basin was from the Susan River and Long Valley Creek in California. Mr. Warnecke felt before anything was done with water from Honey Lake, a Susan River compact should be formed to include California into any decisions.
Mr. Ned Eyre stated he was a user of certificated water in Diamond Valley and had concerns from the standpoint of Mr. Thompson's comments as well as of one who might be applying for water in the future. He did not feel the state should be legalizing the future transfer of water in a permitted basis (See Exhibit K).
Mr. Joe Johnson, Sierra Club, indicated he supported the goals of AB 337, but stated they were opposed to specific issues which had been identified in previous testimony.
Ms. Juanita Cox testified she viewed all water bills as giving the State Engineer more and more power and taking control away from the people. She felt AB 337 created a frightening amount of paper water with no assets to back it up. Ms. Cox said, "Just because a State Engineer hasn't followed the Nevada Revised Statutes since 1907 doesn't mean you can forgive their sins by the last statement: applies retrospectively as well as prospectively." She urged the committee to kill AB 337.
Chairman Garner asked Mr. Turnipseed and Ms. Twedt to respond to questions which had been raised, specifically by Mr. Pelcyger. Chairman Garner said, "In your testimony, you have indicated that virtually every segment of Nevada's water users will be affected if the court's rulings are not changed by legislation. I want you to respond to that."
Mr. McGaughey pointed out to Mr. Turnipseed a Metropolitan Water Council had been created in Southern Nevada, wherein all water rights had been unselfishly given up individually and put into a pool for the Water Council to reallocate at need. He asked if it would be helpful to the Water Resources Department if there was a state water council which would work with the State Engineer in solving the water problems for everyone.
Mr. Turnipseed replied most states had a water development and planning arm which would find additional sources to meet the needs of the state and he felt there was probably some logic in having a statewide water development and planning agency. He stated he did not have a lot of insight on how that might be made up and what their mission ought to be.
Mr. Turnipseed continued, "To answer Mr. Pelcyger's question, he was correct in that the Judge remanded the Honey Lake ruling back to me on three issues. Mrs. Lambert was correct also, one of those was the public interest issue, one was on the basis of the Tribe's reserved right to groundwater, and the other was on the authority to approve changes that had not gone to beneficial use. This law would affect one of those three issues. I am not a proponent of the Honey Lake importation project, I am not a proponent or opponent of that. Washoe County made the decision to make the deal with the people who had the water rights in Honey Lake and I was no part of that decision nor that contractual agreement."
Ms. Twedt remarked she believed if the legislature rejected the retroactive provisions, the legislature would be disavowing all the State Engineer's previous actions. She felt it would put into question the validity of any previous action and those actions would be declared void, and there would be no statute of limitations or 30-day appeal period.
Mr. McGaughey called attention to the discussion about Diamond Valley and asked Mr. Turnipseed to respond regarding handling of that situation.
Mr. Turnipseed replied one of the groundwater basins in the state, specifically the Las Vegas Basin, had been over-appropriated on purpose through the revocable permit process. It was assumed the Colorado River would replace the groundwater used. The Diamond Valley basin was over-appropriated by mistake. He stated in the 1950's there was not a lot of information regarding recharge in the valleys. He also indicated at the time there was a lot of desert land being developed by homesteaders and permits were issued to everyone who requested them. Mr. Turnipseed indicated Diamond Valley had been developed largely by people who had the money to develop the land and drill wells and irrigate it, consequently, Diamond Valley became over-appropriated.
Further discussion ensued between committee members, Mr. Turnipseed and Ms. Twedt.
There being no further testimony, Chairman Garner closed the hearing on AB 337.
Chairman Garner assigned Mr. Bennett, Mrs. Lambert and Mr. Williams to a subcommittee on AB 314 to solve the problems of financing for the State Engineer's office.
Chairman Garner requested committee introduction of the following bill draft requests:
BILL DRAFT REQUEST 21-861 - Authorizes creation of local taxing districts to defray cost of improving business within those districts.
BILL DRAFT REQUEST 23-768 - Changes computation of money available for local governments to pay employees.
BILL DRAFT REQUEST 20-278 - Exempts school districts from certain fees for governmental services.
BILL DRAFT REQUEST 27-832 - Raises threshold for requiring advertisement of competitive bids for purchases by local governments.
BILL DRAFT REQUEST 58-685 - Expands authority of public service commission of Nevada to regulate safety of storage facilities and pipelines for certain gases and petroleum products and increases civil penalty for violation of certain regulations governing safety standards for pipelines used to transport gas.
BILL DRAFT REQUEST 28-1054 - Makes various changes relating to public works projects.
ASSEMBLYMAN BENNETT MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 21-861, B.D.R. 23-768, B.D.R. 20-278, B.D.R. 27-832, B.D.R. 58-685 AND B.D.R. 28-1054.
ASSEMBLYMAN KENNY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
There being no further business to come before committee, the meeting was adjourned at 11:04 a.m.
RESPECTFULLY SUBMITTED:
LINDA FEATHERINGILL
Committee Secretary
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Assembly Committee on Government Affairs
March 24, 1993
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