MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
Sixty-seventh Session
April 23, 1993
The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:44 a.m., on Friday, April 23, 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 Ernest E. Adler
Senator Thomas J. Hickey
Senator Mark A. James
COMMITTEE MEMBERS ABSENT:
Senator Dean A. Rhoads, Vice Chairman (Excused)
Senator Joseph M. Neal, Jr.
Senator Dina Titus
GUEST LEGISLATORS PRESENT:
Assemblyman John C. Carpenter
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Rayanne Francis, Senate Committee Secretary
OTHERS PRESENT:
R. Michael Turnipseed, Professional Engineer (P.E.), State
Engineer, Division of Water Resources, Department of
Conservation and Natural Resources
David Rowles, Director of Administrative Services, Clark County
Health District
Chairman Smith invited Assemblyman John C. Carpenter to present his testimony on Assembly Bill (A.B.) 419.
ASSEMBLY BILL 419: Revises provisions governing construction of dams.
Assemblyman Carpenter introduced himself to members of the committee and explained A.B. 419 simply amended existing language in statute by increasing the dam height and acre-feet of water impounded in a small dam. He explained these changes would allow ranchers and farmers to construct small dams which are slightly under these specifications without obtaining the approval of the state engineer.
Assemblyman Carpenter stated the soil conservation districts had originally requested that this bill be drafted. Additionally, the Nevada Farm Bureau and the Nevada Cattlemen's Association support passage of A.B. 419.
R. Michael Turnipseed, Professional Engineer (P.E.), State Engineer, Division of Water Resources, Department of Conser-vation and Natural Resources, introduced himself to members of the committee. He said the state engineer has been responsible for dam safety in Nevada since the original legislation was enacted in 1951. Mr. Turnip-seed stated A.B. 419 brings the Nevada Revised Statutes (NRS) into compliance with National Dam Safety criteria.
Mr. Turnipseed explained when the Teton Dam failed in 1976, and another dam failed in the State of Georgia (then President Jimmy Carter's home state), there was a big furor over dam safety. He explained, at that time, there was a National Dam Safety law the federal government had never funded. After the failure of these dams, the job of inspecting the country's dams had been assigned to the Army Corps of Engineers (ACE). Subsequently, a National Dam Safety Program was established and the ACE conducted a nationwide inventory of all dams and inspected high-hazard dams.
Mr. Turnipseed explained the ACE's definition of a "small dam" (25 feet high and 50 acre-feet of water) was actually more than A.B. 419 attempted to achieve. He insisted that raising the height and storage of a small dam does not necessarily insinuate that the failure of said dam would not cause significant damage. However, for the record, Mr. Turnipseed stated:
As the Nevada State Engineer, I would still like to be notified whenever a dam is to be constructed.
Mr. Turnipseed stated his reasoning for wanting to be notified of all dam construction was due to the fact it was imperative to confirm that a water right had actually been approved. He stressed his office would not require anyone who intended to construct a dam, smaller than the recommended 20 foot high or 20 acre-feet of water, to file plans and specifications prepared by a professional engineer.
Senator Hickey inquired whose responsibility it was to determine whether or not a dam was actually storing less than 20 acre-feet of water. Mr. Turnipseed explained his staff could make this determination by conducting a simple survey of the reservoir's capacity below the spillway elevation. He continued by stating a review of the particular site's plans and specifications would indicate the dam's "area capacity curve," confirming its adherence to the state engineer's rules and regulations.
Senator Hickey asked if A.B. 419 gave the state engineer's office the authority to make the determination on whether a dam met the state's requirements. Mr. Turnipseed replied by saying the state engineer's office has always been able to make this determination.
Senator Hickey asked if the construction of small dams across the state would have any effect on Nevada's water planning. Mr. Turnipseed admitted that he did not have too much to do with water planning, but stated small dam construction should not affect the water plan. He continued by saying there is a definite need, especially in ranching communities, to have stock water which will carry through the summer season. However, Mr. Turnipseed stressed he would object to the construction of dams on perennial streams which are tributary to a decreed stream system, such as the Humboldt River. Of course, if a rancher has access to a perennial stream, he pointed out there would be no need to construct a dam. Mr. Turnipseed stated it was much more common for small dams to be constructed on ephemeral streams, which dry up in the summer.
Senator Hickey stated it was his impression that many of the streams which feed into the Humboldt River dry up in the summer months. Mr. Turnipseed agreed and explained many of the streams on the Humboldt River were ephemeral. Senator Hickey inquired if Mr. Turnipseed approved of small dam construction on ephemeral streams. Mr. Turnipseed replied by saying his office had approved such requests in the past.
Senator Hickey asked if small dam construction could affect the water resources on an adjoining piece of property. Mr. Turnip-seed explained the effect of dam construction on an adjoining piece of property is two-fold: 1) the benefit to the neighboring property because the small dam acted as a flood control feature; and 2) the drawback of the small dam possibly reducing the amount of water flowing onto the neighbor's property.
While focusing on the possibility of reducing the flow of water on neighboring properties, Senator Hickey asked if this fact was taken into consideration when approval for dam construction was requested. Mr. Turnipseed stated this was the reason the State Engineer's Office preferred to be notified of every dam's construction, without consideration of the dam's height. He emphasized the importance of being apprised was to ensure that the proper water right approval had been obtained and to review the dam's effect on neighboring properties.
Mr. Turnipseed commented Chapter 535 of the NRS dealt strictly with dam safety and the obstruction of streams. He continued by saying Chapter 533 of the NRS dealt with surface water laws, and Chapter 534 of the NRS dealt with ground water laws.
Assemblyman Carpenter explained the Humboldt River was fully decreed and it was unlawful to construct a storage reservoir on one of its perennial streams. He continued by saying most of these dams were built under the authority, and adhere to the criteria, of the soil conservation districts. He stated these soil conservation districts have engineers who assist the state's farmers and ranchers in meeting the construction requirements of the small dams.
Chairman Smith called for action on A.B. 419.
SENATOR HICKEY MOVED TO DO PASS A.B. 419.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL, RHOADS AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
Chairman Smith opened the hearing on A.B. 132.
ASSEMBLY BILL 132: Increases amount that local air pollution control board may retain from administrative penalties.
David Rowles, Director of Administrative Services, Clark County Health District (CCHD), introduced himself to members of the committee. He stated A.B. 132 had been drafted based upon a unanimous vote, in July, 1992, of the Clark County District Board of Health.
Mr. Rowles emphasized A.B. 132 had also been unanimously passed out of the Assembly Committee on Natural Resources, Agriculture and Mining once the school district had endorsed the amended language contained in the bill.
Mr. Rowles stated that it was the responsibility of local health authorities (in counties whose population exceeded 100,000) to perform the duties described in section 1, subsection 1(b) of A.B. 132. He explained the enforcement issue was the basis for the health district's amendment to current statute.
Mr. Rowles explained the Clark County District Board of Health had appointed an air pollution control hearing board approxi-mately 12 years ago. He explained the purpose of this volunteer board was to review and hear violations of air pollution control regulations. Based upon these hearings, the board may assess fines ranging from $100 to $5,000. Mr. Rowles commented these fines have been levied against violators using or selling non-oxygenated fuels during the winter months. He continued by saying some large construction companies had also been fined due to dust pollution originating from their construction sites.
Mr. Rowles explained the Clark County air pollution control hearing board assessed and collected fines which are then turned over to the school district. He explained, in 1990, the hearing board increased its efforts in the pursuit of clean air stan-dards which the citizens of Clark County expect and deserve.
Mr. Rowles cited one instance where the owner of four gas stations in Clark County refused to sell oxygenated fuel in the winter months. This fellow was called before the air pollution control hearing board and, subsequently, fined $20,000. He clarified that an accurate breakdown of the total infraction was $5,000 per gas station. Mr. Rowles emphasized this individual had been in defiance of the regulations for some time, "so this was not just a trigger-happy control board hitting him at the first infraction." After the hearing, this fellow dared the board to try and collect the fine, because he intended to declare bankruptcy.
Mr. Rowles remarked that this type of situation undermined the integrity of the board's ability to enforce air pollution regulations in the county. If fines were not collected, the school district would not have additional funding for books, computers, etc. Additionally, the legal fees incurred by the board for pursuing the violation in the first place would not be reimbursed. He declared further costs would be incurred if the board was also forced to pursue collection through district or bankruptcy courts.
Mr. Rowles explained the aforementioned problems justified the amended language contained in section 1, subsection 3 of A.B. 132. He continued by pointing out legislation had been passed, during the Sixty-sixth Session, which allowed the CCHD to retain a maximum of $10,000 per year. He commented these monies were utilized to defray administrative expenses incurred by the air pollution control board in enforcing regulations contained in statute.
Mr. Rowles advised members of the committee that, in the last year, the costs of the Clark County air pollution control board exceeded the maximum $10,000 limit. He testified that, within the last year, 115 individuals had been brought before the air pollution control hearing board for violating air pollution regulations in Clark County. He continued by saying these fines totalled $60,000, of which $41,000 had been collected. Mr. Rowles stressed the board was pursuing the collection of the remaining $19,000 by filing legal documents, preparing legal orders and by carrying loans for individuals who are paying their fines on a payment by payment basis.
Mr. Rowles stated the amended language contained in section 1, subsection 3 of A.B. 132 would allow a more complete recapture of legal and administrative costs expended by the air pollution control hearing board. He concluded his comments by encouraging the Senate Committee on Natural Resources to enact A.B. 132.
Senator Adler asked if the Clark County air pollution control hearing board had been able to recapture any costs and attorney's fees on the collections. Mr. Rowles replied by stating, at the present time, the board had been unable to recapture these costs due to the fact they had not yet gone to district court. In the case of the gas station owner, he explained the board is still attempting to collect the fine through the bankruptcy court. Senator Adler imagined the board would not recapture any attorney's fees from bankruptcy pro-ceedings. However, he pointed out the air pollution control board should be considered a priority creditor. Mr. Rowles agreed and stated the board had filed for priority credit status and their board's legal counsel was prepared to appear in court whenever necessary.
Mr. Rowles discussed another situation with committee members which had just recently developed. He described a gas whole-saler who conducted business just across the Arizona state line. He said this individual sold nonoxygenated fuel to Clark County residents. Mr. Rowles stated the owner was brought before the hearing board and fined $10,000 for violating regulations con-tained in the NRS. However, it was proving to be very difficult to collect from an Arizona corporation which sold unfit fuel to Clark County residents. He said the legal costs of pursuing this matter were going to rather high, but stated the board was dedicated to maintaining a clean air environment for the citizens of Clark County.
Senator Adler inquired if the hearing board utilized the service of a debt collection agency. Mr. Rowles said they had not done this because most collection agencies charge one-third to one-half of the amount owed for their services.
Senator Hickey inquired if the air pollution control board could close offending businesses for violating air quality regula-tions. Mr. Rowles admitted he was not sure whether the hearing board had this authority. Senator Hickey was confident they did and asked if the board had ever exercised this authority. Mr. Rowles remarked the gas station owner, who had filed bankruptcy, voluntarily closed all four of his gas stations. However, this individual merely reconstituted his corporation under another name and reopened the stations.
Senator Hickey asked if the Nevada Highway Patrol (NHP) cooperated with the CCHD as far as the operation of illegal businesses was concerned. Mr. Rowles stated the cooperation level was excellent. Senator Hickey inquired if the air pollution control board had ever confiscated the truck of an business conducting illegal operations. Mr. Rowles was not sure if the board had the right to confiscate a truck, but stated the health district performed the "at the pump" measurement and measured the fuel in the underground tank(s). Senator Hickey stressed he was referring to embargoed material coming into the State of Nevada. He was positive the air pollution control board would have the right to confiscate the vehicle or equip-ment. Senator Adler asked Senator Hickey if he was referring to vehicle forfeiture. Senator Hickey said that was exactly what he was talking about.
Senator Hickey recommended that the Arizona State Attorney General be notified of this problem. Mr. Rowles assured members of the Senate Committee on Natural Resources that the board intended to further pursue this matter.
Senator Adler wondered if the Clark County District Attorney had instituted any forfeiture proceedings against a truck which had been transporting illegal gas. He stressed this type of enforcement would surely make a strong statement against violating the state's air quality laws. Mr. Rowles pointed out the CCHD is an independent, consolidated form of government. He remarked they had their own private legal counsel who, interestingly enough, was a former member of the Nevada State Legislature.
Senator Adler stated the Clark County District Attorney should be able to intervene, because the sale of illegal gas consti-tutes a criminal offense. He continued by saying the district attorney could institute a civil forfeiture action. However, he cautioned Mr. Rowles that the CCHD would not receive any pro-ceeds from the forfeiture of a tanker truck, but the county would. Mr. Rowles said he wouldn't mind such an arrangement if the CCHD could receive some of the proceeds from the forfeiture. Senator Adler thought this type of sanction would surely be an effective deterrent to these types of violations.
Mr. Rowles explained the CCHD was facing quite a dilemma. He continued by saying the air pollution control board meted out $1,500 in fines 12 years ago, but the total assessed fines this year would, most likely, exceed $100,000. He stressed the importance of maintaining the integrity of the board's ability to enforce air quality standards in Clark County. He concluded his statements by asserting the CCHD fully intended to thwart anyone who viewed these sanctions with impunity.
Chairman Smith called for action on A.B. 132.
SENATOR ADLER MOVED TO DO PASS A.B. 132.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL, RHOADS AND TITUS WERE ABSENT FOR THE VOTE.)
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Chairman Smith pointed out the Subcommittee on Wildlife, chaired by Senator Rhoads, had returned to the full Senate Committee on Natural Resources with several recommendations. He continued by explaining a vote would be taken to indefinitely postpone several bills, the content of which would then be incorporated into an existing bill.
SENATE BILL 114: Makes various changes to provisions governing possession, cultivation and propagation of live wildlife.
SENATE BILL 115: Prohibits hunting of certain animals held in or released from captivity.
SENATE BILL 132: Prohibits importation of game animals under certain circumstances.
SENATE BILL 133: Makes various changes to provisions governing collections of live wild animals.
SENATE BILL 297: Authorizes board of wildlife commissioners to adopt regulations prohibiting importation, transportation or possession of certain species of wildlife.
Chairman Smith stated S.B. 115, S.B. 132, S.B. 133 and S.B. 297 would be incorporated into S.B. 114.
Chairman Smith called for action on these senate bills.
SENATOR HICKEY MOVED TO INDEFINITELY POSTPONE S.B. 115, S.B. 132, S.B. 133 and S.B. 297.
SENATOR JAMES SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL, RHOADS AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
SENATE BILL (S.B.) 130:Revises restriction on terms of sale or lease of state land or interest therein.
Chairman Smith drew attention to an amendment to S.B. 130 provided the members of the committee. He requested that committee members review the amendment as he intended to call for a vote on the matter.
Senator James explained the amendment was technical in nature and removed the obsolete and redundant provisions, as well as changed S.B. 130's summary statement.
SENATOR HICKEY MOVED TO CONCUR IN THE AMENDMENT TO S.B. 130.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL, RHOADS AND TITUS WERE ABSENT FOR THE VOTE.)
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Chairman Smith drew attention to a bill draft request (BDR) he had requested.
BDR 48-197:Create advisory board on Colorado River water resources.
Chairman Smith explained BDR 48-197 could receive a committee introduction or be individually introduced.
SENATOR HICKEY MOVED FOR COMMITTEE INTRODUCTION OF BDR 48-197.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL, RHOADS AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
There being no further business before the Senate Committee on Natural Resources, Chairman Smith adjourned the hearing at 9:14 a.m.
RESPECTFULLY SUBMITTED:
Rayanne J. Francis,
Committee Secretary
APPROVED BY:
Senator R. Hal Smith, Chairman
DATE:
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Senate Committee on Natural Resources
April 23, 1993
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