MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
Sixty-seventh Session
April 22, 1993
The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:35 a.m., on Thursday, April 22, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator R. Hal Smith, Chairman
Senator Mark A. James
Senator Joseph M. Neal, Jr.
Senator Thomas J. Hickey
Senator Dina Titus
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
Senator Dean A. Rhoads, Vice Chairman (Excused)
GUEST LEGISLATORS PRESENT:
Assemblyman Joe Dini, Assembly District 38
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Caroline Allen, Committee Secretary
OTHERS PRESENT:
R. Michael Turnipseed, State Engineer, Division of Water Resources
Peggy Twedt, Deputy Attorney General for Division of Water Resources
Gordon De Paoli, Attorney, Walker River Irrigation District, Edgewood Water Co.
Jim Weishaupt, Manager, Walker River Irrigation District
Harvey Whittemore, Lionel, Sawyer & Collins - Reno
Samuel P. McMullen, Independence Mining Co./Barrick Goldstrike Mines - Elko
Dave Moody, Manager, Dewatering Technical Services, Barrick Goldstrike Mines - Elko
Mervin Wright, Jr., Director, Water Resources, Pyramid Lake Paiute Tribe
Robert Pelyger, Tribal Attorney, Pyramid Lake Paiute Tribe
Chairman Smith announced that the order of business would be rearranged today and also he remarked that he had invited other members of the committee to add remarks if they wished. Chairman
Smith added that the day's session would end at 10:45 a.m., deliberations would resume as close to 8:30 a.m., as possible on Monday, April 26, 1993 and the subcommittee chaired by Senator Mark James, would continue on Wednesday, April 28, 1993 at 8:30 a.m. There was further discussion on the order of business.
Chairman Smith convened the hearing and opened with Assembly Bill
(A.B.) 337.
ASSEMBLY BILL 337: Clarifies certain provisions of water law and ratifies past actions of state engineer.
Joe Dini, Assembly District 38, introduced himself to members of the
committee, indicating further that he represented an agricultural area of the state. He remarked that his interest in this legislation comes from his pledge to those people with whom he served and represented some 27 years ago that he would do everything he could to protect their water rights and their ability to operate their farms and their ranches in an appropriate manner. He proceeded to give a brief overview of his views concerning A.B. 337. He concluded by encouraging the committee to support A.B. 337 because it was good public policy and not because it may or may not affect a specific
application in any way.
Chairman Smith commented that he and Assemblyman Dini have the same background and that they both understand western water.
Senator Adler commented that he had received a great number of communications from people saying that if this bill is passed, it would increase speculation. He further remarked that he had looked at this fairly carefully and that with assurance there had been a number of filings, he imagined there would be a rash of thousands of speculations on applications if the legislature does not pass the bill.
Further discussion ensued.
Chairman Smith interjected and apologized to those in attendance for not having adequate room capacity, indicating he would try to have that arranged for the next subcommittee meeting.
R. Michael Turnipseed, State Engineer, Division of Water Resources, introduced himself to members of the committee. He reiterated what Assemblyman Dini had said and stated that the State Engineer, since the inception of the office and since changes in statutes were passed in 1907, have interpreted the law consistently in that, a person can file application to change the permit that has not gone to beneficial use. He drew the committee's attention to a letter from Roland D. Westergard, former Assistant State Engineer and Director of the Department of Conservation and Natural Resources, (Exhibit C).
He then proceeded to give his presentation from Exhibit D, titled Briefing Paper on A.B. 337.
Further discussion ensued.
Peggy Twedt, Deputy Attorney General for the Division of Water Resources, introduced herself to members of the committee. She gave an interpretation of the water rights.
Further discussion ensued.
Mr. Turnipseed once again alluded to Exhibit D and continued with his presentation.
Mrs. Twedt explained the ramifications which would occur in the event the bill was not passed, indicating if the legislature rejects a retroactive provision, basically, the legislature is saying, "the State Engineer was acting outside of his authority." She further
stated this would be an indication that the State Engineer acted in- appropriately the past 86 years and if the State Engineer was acting outside of his authority that meant his actions were void. She stressed a void action could be attacked at any point in time, so in essence, if the legislature chooses not to apply the retroactive provision, all the people that relied on the State Engineer's decisions in approving, would change the people's rights and in turn, could have those approvals subject to judicial attack. She emphasized because of the chaos that could be created by that decision, she urged the legislative committee to approve the bill and specifically, to approve the retroactive provisions in the bill.
Senator Neal commented that he understood what Mrs. Twedt was saying in terms of what the effect would be, if the provision was not adopted, but his question to her was what constitutional standing would the legislature have to pass a law that would be retroactive?
Mrs. Twedt explained that this procedure is done frequently and further expounded on her explanation.
Further discussion ensued.
Gordon De Paoli, Attorney, Walker River Irrigation District, Edgewood Water Company, introduced himself to members of the committee. He explained that the Walker River Irrigation District provides water
to approximately 80,000 acres of land in the Smith and Mason Valleys, from the Bridgeport and Topaz reservoirs on the east and west forks of the Walker River. He proceeded to give his presentation from
Exhibit E, titled, Statement of Gordon H. DePaoli.
Further discussion ensued.
Jim Weishaupt, Manager, Walker River Irrigation District, introduced himself to members of the committee and added to the presentation Mr. DePaoli had given.
Chairman Smith called for a 5-minute recess and then reconvened the hearing.
Harvey Whittemore, Lionel, Sawyer and Collins, Reno, came forward and introduced himself to members of the committee. He remarked that he thought the important part that should be focused on in Assembly Bill 337 is what is actually being put into the Nevada Revised Statutes (NRS). He referred to A.B. 337, Section 1, lines 3-6:
As used in NRS 533.325, 533.345 and 533.425, 'water already appropriated' includes water for whose appropriation the state engineer has issued a permit, but which has not been applied to the intended use before an application to change the place of diversion, manner of use or place of use is made.
He stated the remaining provisions of the bill are there to suggest how to handle appropriate matters, but the bottom portion is what is going to actually be placed in the Nevada Revised Statutes contained in lines 3-6 (mentioned above). Further discussion ensued.
Samuel P. McMullen, Representative, Barrick Goldstrike Mines, Elko, introduced himself to members of the committee. He explained that their interest was in explaining some of the current, practical applications and the need for the law being mentioned.
Dave Moody, Manager (Dewatering), Barrick/Goldstrike Mines, Elko,
introduced himself to members of the committee. He explained
that they are operating a gold mine in the Boulder Flat groundwater basin. He also stated the state engineer's policy of allowing changes in the diversion points prior to putting water to beneficial use has been one of the key instrumental tools in allowing the Goldstrike Mine to be developed and to grow at the rate in which it has over the last 6 years. He indicated his presentation was to focus around the effect of changes in points of diversion and the way that it has allowed the mines to develop. He explained that is in contrast to conventional groundwater pumping operations in which you install a well, withdraw water and put it to use. He further indicated in mining water operations, it is necessary to pump the groundwater to create a cone of depression. He gave further presentation.
Further discussion ensued.
Mervin Wright, Jr., Director, Water Resources, Pyramid Lake Paiute Tribe, introduced himself to members of the committee. He stated he had gone to the Assembly Committee on Government Affairs last month in efforts to explain or present their concerns on A.B. 337. He also stated that he was instructed by the chairman of that committee to oppose amendments to A.B. 337, to address their concerns and protect their interests reflected by this bill. He expressed they were not given the opportunity for those amendments to be recognized and the bill was passed by the assembly. He stated his efforts were to have their concerns recognized by the senate. He alluded to a handout of his presentation to the committee, (Exhibit F).
Robert Pelyger, Tribal Attorney, Pyramid Lake Paiute Tribe, introduced himself to members of the committee. He stated the main point he would like to make is, this is not, in their opinion, an all or nothing proposition. He stated, essentially, the way the issue has been framed to the committee, so far is, that it has been cast in terms of either one extreme or the other. Specifically, that is, whether or not to permit any transfers at all of water that has not been put to beneficial use. He gave further presentation. He directed the committee's attention to Exhibit G, proposed amendment to Chapter 533 of Nevada Revised Statutes, section 2:
The legislature hereby ratifies each approval granted by
the state engineer before the effective date of this act for a change of the place of diversion, manner of use or place of use of water for whose appropriation the state engineer had previously issued a permit, but which had not been applied to the intended use before the approval was granted provided that the ruling of the state engineer granting such approval was not appealed with the time set forth in NRS 533.450.
Further discussion ensued.
Chairman Smith thanked the committee for their participation and alluded to the subcommittee meeting on Monday, May 3, 1993.
There being no further business before the Senate Committee on Natural Resources, Chairman Smith adjourned the hearing at 10:50 a.m.
RESPECTFULLY SUBMITTED:
Caroline Allen,
Committee Secretary
APPROVED BY:
Senator R. Hal Smith, Chairman
DATE:
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Senate Committee on Natural Resources
April 22, 1993
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