MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
Sixty-seventh Session
June 8, 1993
The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:45 a.m., on Tuesday, June 8, 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 Dean A. Rhoads, Vice Chairman
Senator Ernest E. Adler
Senator Thomas J. Hickey
Senator Mark A. James
Senator Joseph M. Neal, Jr.
Senator Dina Titus
GUEST LEGISLATORS PRESENT:
Assemblyman Jan Evans
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Rayanne Francis, Senate Committee Secretary
OTHERS PRESENT:
R. Michael Turnipseed, State Engineer, Division of Water
Resources, Nevada Department of Conservation and Natural
Resources
Joe L. Johnson, Lobbyist, Sierra Club/Toiyabe Chapter
Chairman Smith convened the hearing and requested that members of the committee review a concur/not concur assembly amendment to Senate Joint Resolution (S.J.R.) 7.
SENATE JOINT RESOLUTION 7: Directs Legislative Commission to appoint committee to continue review of Tahoe Regional Planning Compact.
Chairman Smith refreshed the memories of the committee by describing the previous action they had taken on the bill, and called for action on S.J.R. 7.
SENATOR ADLER MOVED TO NOT CONCUR IN THE ASSEMBLY AMENDMENT TO S.J.R. 7.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS HICKEY, TITUS AND JAMES WERE ABSENT FOR THE VOTE.)
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Chairman Smith invited Senator Rhoads to pass out the concur/not concur assembly amendment to Senate Bill (S.B.) 118.
SENATE BILL 118: Makes various changes to provisions governing revocation or suspension of licenses issued for hunting, fishing or trapping wildlife.
Senators Neal and Rhoads made a comparison of the changes made to S.B. 118 and determined that language removed from the bill had been re-inserted. Before taking further action on the bill, Senator Rhoads offered to speak with members of the assembly to clarify what they had in mind with this concur/not concur amendment. Chairman Smith gave his permission to pursue this course of action.
Chairman Smith opened the hearing on Assembly Bill (A.B.) 314.
ASSEMBLY BILL 314: Makes various changes regarding appropriation of public waters and increasing certain fees assessed by state engineer.
R. Michael Turnipseed, State Engineer, Division of Water Resources, Nevada Department of Conservation and Natural Resources, introduced himself to members of the committee. Prior to addressing A.B. 314, he said the Division of Water Resources is almost entirely funded with General Fund monies. He continued by saying all of the fees his office collects are deposited into the General Fund. He said he averages a total of $1 million in annual deposits to the General Fund.
Mr. Turnipseed pointed out A.B. 314 had been drafted at the request of the administration of the Nevada Department of Conservation and Natural Resources. He continued by saying the Executive Budget reflects a reduction of staff in his office of 5 people the first half of the biennium, and 5 additional people the second half of the biennium. He explained a majority of the fees collected by the Division of Water Resources result from the permits issued by staff. Mr. Turnipseed pointed out he had already had a staff reduction of 7 people this past biennium, and that losing 10 more people would drastically reduce the number of permits his office is capable of issuing each year.
Mr. Turnipseed drew attention to the proposed increases to the permit fees, contained in section 4 of A.B. 314. He said the administration has recommended that permit fees be increased to offset the Division of Water Resources' staff reduction.
Mr. Turnipseed proceeded to review the various sections of the bill. He drew attention to a handout (Exhibit C) he had provided committee members, which detailed projected revenues from the proposed fee increases contained in A.B. 314. He remarked that members of the assembly, and the Senate Committee on Finance, had felt that the Division of Water Resources should be authorized to fill the 7 staff positions eliminated last biennium.
Senator Adler asked if more monies are being collected in fees than what is being budgeted to the agency. Mr. Turnipseed said this was incorrect. He continued by saying the division's budget for 1993 is approximately $2.8 million, and the division normally collects $1 million annually. Of course, with the projected budget cuts, this figure has been reduced to $1.6 million.
Senator Adler pointed out that even if A.B. 314 was passed, the budget for the Division of Water Services would total $2.6 million, instead of $2.8 million. Mr. Turnipseed said this is correct and explained the operations, equipment and travel budgets would be reduced accordingly.
Senator Adler wondered how the state could possibly operate unless the Division of Water Resources was fully staffed and able to process applications in a timely manner. Mr. Turnipseed said he looked at this situation from the viewpoint that the Division of Water Resources was in the "water management" business. He continued by saying he would prefer not to worry about the fees the division collects, and attempts to leave the fee issue completely out of his decision-making process. Mr. Turnipseed stressed that if an application is approved, the division collects a fee. Accordingly, if an application is denied, the division does not collect anything at all. He said he has a similar arrangement with permit extensions, insofar as a fee is collected if the time is extended. However, if a decision is made to cancel an extension, the division does not collect fees on the permit any longer. He stressed the process of managing the state's water, regardless of what fees are involved, is in the best interest of the citizens of Nevada. Senator Adler reiterated that the state engineer made no direct connection between his rulings and what the Division of Water Resources actually collected. Mr. Turnipseed said this is correct and that his first priority is to properly manage the state's water and not worry about what fees are going to be collected. Senator Adler said he agrees with this viewpoint and that it is the best way to maintain an objective viewpoint.
Senator Neal asked why the state engineer continues to resist efforts to bring him under the Administrative Procedures Act (APA). Mr. Turnipseed explained, in most cases, he does not object to being placed under the APA. He continued by saying, quite often, his office can and does comply with the requirements of the APA. For instance, when the Division of Water Resources designates a basin, a notice is posted in the newspaper for 3 weeks and a hearing is scheduled 30 days later. Mr. Turnipseed said these procedures are almost identical to those of the APA.
Mr. Turnipseed said the areas where the Division of Water Resources strayed from the requirements of the APA are mandated by federal decree. For instance, the rules of practice of change applications are different on the Walker River than they are on the Carson River. He continued by saying the Walker River is under a different federal court than the Carson River. Mr. Turnipseed said the federal court delegates its authority to the Nevada State Engineer to approve or deny change applications.
In reference to section 3, subsection 4, Senator Neal asked why the state engineer would not be permitted to write a decision. Mr. Turnipseed disagreed and said he is mandated by law to record his decisions in writing. After further review of the language contained in the subsection, Senator Neal read, "The written decision may take the form of a transcription of an oral ruling." Mr. Turnipseed said a hearing can generate a few pages of transcript or as much as 2,000 pages (i.e., the Yucca Mountain hearing). He explained the Yucca Mountain hearing had been in writing because of the immense amounts of material to be reviewed. He said at least 95 percent of his rulings are written, however, some of simpler permit hearings may only require an oral ruling.
Senator Neal stressed there are laws that the state engineer must follow in the State of Nevada. Mr. Turnipseed said the Division of Water Resources activities are mandated by law (Nevada Revised Statutes [NRS] Chapters 533 and 534).
In reference to the last sentence in section 2, subsection 4 of A.B. 314, Senator Neal asked why the state engineer is exempt from the technical rules of evidence. Mr. Turnipseed replied that the Division of Water Resources is currently attempting to bring water rights in the Owyhee River area up-to-date by conducting adjudication hearings. He explained there are no accurate records prior to 1905 and the division is trying to verify water rights that were created in 1860 and 1870. Another ongoing water rights adjudication was taking place at the Duck Valley Indian Reservation, where the division is trying to sort out valid reserve right claims. He said it is not unusual to hear testimony consisting of hearsay evidence from an individual whose great-grandfather extended a ditch in 1879. However, the difficulty with hearsay evidence was to determine exactly how much water was diverted or what was the size of the reservoir.
In reference to the Honey Lake decision, Senator Neal pointed out the judge was somewhat critical of the findings of fact supplied by the Nevada State Engineer. Mr. Turnipseed said this very same judge had, "found in our favor in two other cases that have also been appealed, and the state prevailed in the [Nevada] Supreme Court." He continued by saying this judge was critical that the state engineer had not articulated well enough the findings on "public interest." Mr. Turnipseed said there was not a problem with the numbers, or whether there was unappropriated water or interference with existing rights. Mr. Turnipseed said the judge has remanded the case back to the Division of Water Resources to provide him with additional opportunities to clarify the "public interest" findings.
SENATE BILL 327: Establishes guidelines for determinations by state engineer of "public interest" under water law.
Senator Neal explained that he had amended S.B. 327 with a clause placing the state engineer under the APA. He pointed out his concern stems from the fact that A.B. 314 appears to reverse his earlier recommendation. Mr. Turnipseed assured Senator Neal that A.B. 314 placed the state engineer under the APA for the purposes of adopting rules and regulations for holding hearings. Senator Neal said he is aware of this, but it seems that beyond this point the state engineer would be "left to (his) own devices." Mr. Turnipseed agreed and explained the state engineer is mandated to carry out his assigned duties by following the rules and regulations contained in NRS or by federal decree.
Senator Neal asked Mr. Turnipseed to give members of the committee an example of exactly when the federal decree would conflict with the laws of the State of Nevada (under the APA). Mr. Turnipseed explained that, under federal decree, an application for a change on the Walker River calls for a hearing, receipt of evidence and the state engineer's ruling. If the final ruling is appealed, a trial de novo takes place, rather than a substantial evidence type of review. Federal decree also requires that a notice be posted to the public, the Walker River Paiute Tribe, as well as state agencies that have water in the Walker River. Mr. Turnipseed explained NRS rules are slightly different and require the state engineer to post a 4-week notice in a paper of general circulation.
As far as the Carson River is concerned, Mr. Turnipseed said the Division of Water Resources follows its normal practices, unless the application is: 1) a California diversion for use in Nevada; or 2) a California diversion for use in California. Concerning 2), the case is clearly within the jurisdiction of the court. Mr. Turnipseed described a situation where the Division of Water Resources had recently processed some change applications moving the point of diversion from Nevada to California. He said the court had taken jurisdiction of the applications and had defined nine triable issues, five of which the court was going hear and four the state engineer would hear. He explained a trial had taken place, but the judge had passed away prior to issuing his ruling. As a result, Mr. Turnipseed said a stipulated settlement had been reached and the issues still held in dispute were remanded to the state engineer for further hearings.
Senator Neal said he is well aware that the state engineer utilized three criteria when considering an application to appropriate or change an appropriation of existing water rights in Nevada. These three criteria are: 1) whether there is unappropriated water in the source; 2) whether it would adversely affect existing rights; and 3) whether granting the request would adversely impact, or be detrimental to, the public interest. He asked if federal law required the state engineer to utilize any other criteria than the three currently used. Mr. Turnipseed responded by saying the federal government, essentially, follows the three criteria used by the State of Nevada. Senator Neal assumed these three criteria would be the crux of any decision made by the state engineer. Mr. Turnipseed explained the findings the state engineer is required to make does not conflict the APA at all. He said the federal decree differs from the APA as far as the notice requirements, hearing requirements and the appeal process. Senator Neal said he assumed the appeal process under federal decree would involve a new trial. Mr. Turnipseed said this would hold true for the Walker River, but not the Carson River. He pointed out the Carson River appeal would involve a substantial evidence review and a judge could not substitute his judgement for the state engineer.
Senator Neal pointed out Mr. Turnipseed had pointed out that the state engineer utilized three criteria when making a determination on either the Walker or Carson Rivers. Mr. Turnipseed replied this is correct. Based on this information, Senator Neal wondered why it would so difficult to place the state engineer under the APA. Mr. Turnipseed replied, in most circumstances, there would be no conflict with the APA. However, he stressed there are differences between the notice, hearing, rules of evidence, ruling and the appeal processes.
Senator Neal asked Mr. Turnipseed if he would object if the committee proposed an amendment to A.B. 314 placing the state engineer under the APA, with exception to the fact that the technical rules of evidence do not apply as far as hearsay evidence is concerned. Mr. Turnipseed admitted that he would not object to such an amendment. However, he insisted another exception would need to be addressed in this amendment. He explained that this exception would have to address situations where the state engineer is mandated to deviate from the normal procedures by federal decree. He explained the APA was crafted to provide a mid-level appeal process for agencies that take direction from a board. Mr. Turnipseed pointed out that he does not work for a board and any appeal of his decision would proceed to a federal court having jurisdiction or straight to the district court.
Joe L. Johnson, Lobbyist, Sierra Club/Toiyabe Chapter, introduced himself to members of the committee. He said the Sierra Club supports passage of the second reprint of A.B. 314. He explained there were some problems with the original draft of the bill, but these concerns had been addressed.
Mr. Johnson said the Sierra Club hopes the Division of Water Resources would receive adequate funding to allow the state engineer to continue in this performance of his duties. He also drew attention to the fact the Sierra Club agrees with Senator Neal's opinion that the state engineer be placed under the requirements of the APA.
In reference to the fees listed in section 4 of A.B. 314, Mr. Johnson suggested that a portion of the $2 fee (lines 32 & 43) be paid to the state engineer in the event a permit is denied. Currently, a fee is collected if the permit is approved, but not if it is denied. Under the current practice, a rancher who would like to water his cattle would pay the same fee for a permit that a large industrial or promotional organization would for much larger quantities of water. Mr. Johnson said he is aware that other fees are collected as well, but he stressed the importance of retaining some portion of the application fee based upon the amount of water being requested on the application.
Chairman Smith closed the hearing on A.B. 314 and invited Senator Hickey to present a report from the Subcommittee on Hazardous Materials.
ASSEMBLY BILL 115: Protects certain persons and organizations from liability for damages in regulating and removing hazardous materials.
ASSEMBLY BILL 116: Authorizes proration of annual fee paid by regulated facilities for hazardous materials.
ASSEMBLY BILL 122: Expands costs for which money may be expended and recovered regarding response to accident involving hazardous material.
ASSEMBLY BILL 123: Provides for issuance of permits for transportation of radioactive waste by Nevada highway patrol division of department of motor vehicles and public safety with approval of public service commission of Nevada.
ASSEMBLY BILL 124: Authorizes director of the division of emergency management of the department of the military to facilitate development of a comprehensive, coordinated approach to emergency management.
Senator Hickey said the subcommittee had heard considerable testimony from interested parties. He recalled the fact that industry have been concerned about the costs of cleaning up minor hazardous materials spills (A.B. 122). However, he declared that these concerns had been addressed by the testimony presented during the subcommittee hearing.
Chairman Smith commended Senator Hickey on the effort he had expended and informed those in attendance that A.B. 115, A.B. 116, A.B. 122, A.B. 123 and A.B. 124 would be rescheduled to an upcoming work session.
Chairman Smith opened the hearing on Assembly Concurrent Resolution (A.C.R.) 55.
ASSEMBLY CONCURRENT RESOLUTION: Urges local governments to continue water conservation efforts.
Assemblyman Jan Evans, District No. 30, introduced herself to members of the committee. She said A.C.R. 55 had been drafted very early in the session, prior to knowing exactly what would be the winter's total snowfall and snowpack. She emphasized A.C.R. 55 had been requested in an effort to prevent the citizens of Nevada from becoming overconfident about abundant water reserves.
Assemblyman Evans explained that, during the drought, most municipalities in Northern Nevada had established water conservation measures to control waste and promote conservation. In spite of the generous snowfall the state experienced this past winter, she feels it is extremely important to continue with existing water restrictions. Assemblyman Evans concluded her testimony by encouraging members of the committee to support passage of A.C.R. 55.
Senator Adler mentioned the fact that he had been involved in the water conservation effort during the 1991 session. He pointed out language had been adopted into statute (NRS 540.121 through 540.151) requiring that local entities submit water conservation plans to the state water planner, and enforce conservation measures through ordinances. With this in mind, Senator Adler recommended A.C.R. 55 be amended with language cross-referencing the aforementioned statutes.
Senator Adler asked Mr. Turnipseed if he had statistics on how many municipalities had complied with the requirements currently in statute. Mr. Turnipseed admitted that he did not enforce the provisions dealing with water conservation, but the Nevada State Water Planner, Everett A. Jesse, had indicated that 80 percent of the state's municipalities had submitted water conservation plans. Mr. Turnipseed said Mr. Jesse had also circulated a model state water conservation plan, which some of the smaller communities adopted, instead of developing their own.
Senator Adler inquired if the state's requirements on the installation of water saving toilets, shower heads, etc. are being enforced. Mr. Turnipseed replied that these requirements are being enforced on new construction.
Senator Adler agreed wholeheartedly with Assemblyman Evans' viewpoint that water conservation measures be continued. He pointed out some communities' water conservation plans only enforce alternate day watering as a drought condition restriction.
Chairman Smith asked Senator Adler if he would prepare an amendment to A.C.R. 55. Senator Adler said he would be happy to put together an amendment referencing the language currently contained in statute.
Chairman Smith called for action on A.C.R. 55.
SENATOR ADLER MOVED TO AMEND AND DO PASS A.C.R. 55 AS AMENDED.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED.
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Senator Neal asked for Chairman Smith's permission to make a motion on A.B. 314. Chairman Smith said this motion was in order.
ASSEMBLY BILL 314: Makes various changes regarding appropriation of public waters and increasing certain fees assessed by state engineer.
Senator Neal stated he feels strongly that the Nevada State Engineer be placed under the Administrative Procedures Act (APA), except when federally mandated procedures preempt them. After considerable discussion, Senator Hickey recommended that language be amended into A.B. 314 placing the Nevada State Engineer under the Administrative Procedures Act (APA) when applicable. Senators Neal, Adler and Hickey agreed this would be appropriate.
SENATOR NEAL MOVED TO AMEND AND DO PASS A.B. 314 AS AMENDED.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
SENATE BILL 327: Establishes guidelines for determinations by state engineer of "public interest" under water law.
Senator James drew attention to the fact that S.B. 327 had been amended and passed out of the Senate Committee on Natural Resources on Monday, May 17, 1993. He asked members of the committee if the amended language placing the Nevada State Engineer under the APA could be removed from S.B. 327 now that similar language had been amended into A.B. 314. Senator Neal said he would be agreeable to removing his earlier motion from S.B. 327.
SENATOR NEAL MOVED TO RESCIND HIS PORTION OF THE PROPOSED AMENDMENT TO S.B. 327, WHICH PLACED THE STATE ENGINEER UNDER THE ADMINISTRATIVE PROCEDURES ACT.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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There being no further business before the Senate Committee on Natural Resources, Chairman Smith adjourned the hearing at 9:31 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
June 8, 1993
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