MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
Sixty-seventh Session
June 11, 1993
The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:36 a.m., on Friday, June 11, 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
Senator Joseph M. Neal, Jr.
COMMITTEE MEMBERS ABSENT:
Senator Dean A. Rhoads, Vice Chairman (Excused)
Senator Dina Titus
GUEST LEGISLATORS PRESENT:
Senator Raymond C. Shaffer
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
Jeffrey A. Fontaine, Professional Engineer (P.E.), Master of
Public Health (M.P.H.), Supervisor, Public Health Engineering,
Bureau of Health Protection Services, Nevada State Health
Division, Department of Human Resources
Wayne S. Chimarusti, Chairman, Tahoe Regional Planning
Agency
David S. Ziegler, Executive Director, Tahoe Regional Planning
Agency
Jeffrey S. Blanck, Agency Counsel, Tahoe Regional Planning
Agency
Eugene L. Williams, Assistant State Fire Marshal, Nevada State
Fire Marshal Division, Nevada Department of Commerce
Janet Carson, Representative, Westpac Utilities
Chairman Smith opened the hearing on Senate Bill (S.B.) 521.
SENATE BILL 521: Regulates certain domestic wells used in common.
Senator Raymond C. Shaffer introduced himself to those in attendance. He explained S.B. 521 had been drafted on behalf of several small developers in southern Nevada, as well as individual property owners who are interested in having family members share a single domestic well. He emphasized the intent of the bill is to eliminate the cost of drilling another domestic well when water could be drawn from an existing well.
In the interest of allowing Senator Shaffer to provide introductory testimony on another bill he had sponsored, Chairman Smith closed the hearing on S.B. 521 and opened the hearing on S.B. 483.
SENATE BILL 483: Provides for arbitration of disputes involving Tahoe Regional Planning Agency.
Senator Shaffer said S.B. 483 had been drafted at the request of Noel E. Manoukian, a former justice of the Nevada Supreme Court. Senator Shaffer said he has no attachment to this bill other than being the medium through which it had been introduced. He admitted he did not see that Mr. Manoukian was in the audience, but anticipated that he would provide further testimony on the justification for drafting the bill.
Senator Hickey asked if the Tahoe Regional Planning Agency was experiencing an inordinate amount of disputes, which needed to be settled outside of the normal process. Senator Shaffer said it is his opinion that disputes are being settled under the current system. However, Mr. Manoukian had felt the arbitration process proposed by S.B. 483 would be less costly and would expedite the process.
Chairman Smith closed the hearing on S.B. 483 and opened the hearing on S.B. 521.
R. Michael Turnipseed, State Engineer, Division of Water Resources, Nevada Department of Conservation and Natural Resources, introduced himself to members of the committee. He said the State of Nevada has been in the water management business since 1905 for surface water, and 1939 for ground water. In that regard, he insisted that the State of Nevada has an exemplary record and, being the driest state in the nation, other states looked to Nevada as a means of visualizing what they might possibly be dealing with in the future.
Mr. Turnipseed said the state has just come out of a 7-year drought and, unlike its neighbors to the west, he was not aware of anyone carrying buckets of bath water to their gardens to water their flowers. He said this very fact is a tribute to Nevada's experience with groundwater management. Mr. Turnipseed claimed S.B. 521 would throw water management right out of the window. He said this legislation could easily result in the construction of 100-home subdivisions that operate off of five community wells.
Mr. Turnipseed said most of the complaints the Division of Water Resources receives deal with domestic well owners and small community well owners. These individuals complain about poorly constructed wells or disproportionate water/power usage.
Mr. Turnipseed disagreed with Senator Shaffer's earlier testimony and insisted that the water usage of an average household in southern Nevada was not 1,800 gallons per day. Rather, for customers on the Las Vegas Valley water system, he explained average water usage is more like 700 gallons per day. He continued by explaining that the law currently allows a domestic well to pump up to 1,800 gallons per day. However, the language contained in section 2, subsection 3 of S.B. 521, would allow a domestic well to pump any amount of water on any given day as long as the annual water use did not average out to more than 1,800 gallons per day. He said these figures would total just a little more than 2 acre feet, or 650,000 gallons per year. Senator Adler interrupted by saying this figure is approximately double what an average household would use on an annual basis. Mr. Turnipseed replied this observation was correct.
Mr. Turnipseed then referred to language contained in section 3, subsections 1 and 2. He said this verbiage is very misleading and would be unenforceable, because a well owner would be able to pump more than 1,800 gallons per day as long as the annual water use did not average out to more than 1,800 gallons per day. Additionally, he pointed out he will have to be on-site every day to verify the water usage, which is impossible. Mr. Turnipseed said it was also ridiculous that he could charge a fee for verifying the quantity of water drawn, but be restricted from charging an inspection fee.
Mr. Turnipseed said he is sure that the fines contained in section 4 are well-intended, however, he does not have the staff to police possible offenses. He indicated that Senator Shaffer had indicated that this bill was introduced to allow family members to share domestic wells. Mr. Turnipseed responded to this statement by saying he knew of some large families, but did not see any reason why S.B. 521 should allow 20 single-family dwellings to share a single domestic well.
Mr. Turnipseed pointed out that, during the 1983 session, the legislature amended Nevada Revised Statutes (NRS) 534.180 to reduce the number of single-family dwellings on a single domestic well from three to one. He explained this earlier amendment granted a waiver for domestic wells drilled prior to 1983 and required permits for wells that would serve more than one family.
Mr. Turnipseed stressed S.B. 521 reverses earlier amendments to statute by allowing as many as 20 single-family dwellings to share one domestic well without the benefit of any permit. As a result, there is a very real danger of having no control over where a well would be located or how much water could be drawn. Additionally, without adequate control over this situation, it is probable that one well could dry up neighboring wells.
Jeffrey A. Fontaine, Professional Engineer (P.E.), Master of Public Health (M.P.H.), Supervisor, Public Health Engineering, Bureau of Health Protection Services, Nevada State Health Division, Department of Human Resources, introduced himself to members of the committee. Mr. Fontaine's testimony is contained in Exhibit C.
Senator Adler said he represents Silver Springs, Nevada, and admitted he has serious concerns about S.B. 521 as written. He said it would be disastrous to condone a proliferation of wells without placing any controls on the maintenance of the quality and quantity of water being drawn.
Chairman Smith recognized an individual in the audience who had shown an interest in providing testimony on S.B. 521. He asked Janet Carson, Representative, Westpac Utilities, if she is in support of or opposed to this piece of legislation. Speaking from the audience, Ms. Carson indicated that she is in opposition to passage of S.B. 521.
Chairman Smith closed the hearing on S.B. 521 and informed those in attendance that he intends to reschedule the bill to an upcoming work session.
Chairman Smith opened the hearing on S.B. 483.
SENATE BILL 483: Provides for arbitration of disputes involving Tahoe Regional Planning Agency.
Wayne S. Chimarusti, Chairman, Tahoe Regional Planning Agency, introduced himself to members of the committee. He noted that two additional representatives of the Tahoe Regional Planning Agency (TRPA) would be providing additional testimony later in the hearing.
At a recent TRPA board meeting, Mr. Chimarusti said board members had been informed of the fact that a delegation would be speaking in opposition to S.B. 483. At that time, none of the board members had indicated that they support passage of this bill.
Mr. Chimarusti said the process of "arbitration" looked good on the surface, but stressed its practical application does not merit the respect it seems to engender. He continued by saying that it is his viewpoint that nonbinding arbitration is a waste of time and money. He explained S.B. 483 would place a burden on the TRPA and would not resolve any problems. Mr. Chimarusti explained the language contained in this piece of legislation would ensure that the aggrieved party will always be someone other than the TRPA. He continued by saying he could not envision any type of situation where the TRPA would request nonbinding arbitration. He said, ultimately, the TRPA would be spending money for arbitrators to conduct hearings, where an aggrieved party presents its case, only to have the case proceed to the court system anyway. Mr. Chimarusti said the only advantage to this bill would be the ability to go into arbitration as a means of learning what the other side's case was based upon, then proceed into litigation.
Mr. Chimarusti explained S.B. 483 has several technical problems, one of which is the fact that the TRPA is a compact involving two states; namely, the States of California and Nevada. Under these circumstances, he does not see any feasible means for Nevada to arbitrarily amend the compact without consulting with the State of California. He explained language contained in S.B. 483 would require the State of California to select Nevada arbitrators in the nonbinding arbitration, or the American Arbitration Association. Mr. Chimarusti stressed this legislation does not take into consideration the aspects and intricacies that may or may not exist in California's law and arbitration.
Senator Hickey asked if the State of California has an arbitration process. Jeffrey S. Blanck, Agency Counsel, Tahoe Regional Planning Agency, introduced himself to members of the committee. He responded to Senator Hickey's question by saying the courts in the State of California do indeed have an arbitration provision and the State of Nevada recently adopted an arbitration provision. Mr. Blanck explained both states have arbitration clauses stating that the court may require that nonbinding arbitration take place after certain criteria have been met. He said the TRPA is subject to the state court rules when involved in these proceedings.
Senator Hickey asked what changes had been proposed by S.B. 483 to which Mr. Blanck objected. Mr. Blanck explained the TRPA governing board of regents would make a final decision. If the party did not like this decision, he said S.B. 483 requires that, within 5 days, the party force the TRPA into nonbinding arbitration. Mr. Blanck said this type of arbitration process would result in lost time and money to the TRPA due to the fact the agency counsel or litigation counsel would invest a lot of effort and time into a case that may go to court anyway. He concluded his testimony by emphasizing that S.B. 483 just creats another layer to go through before a final resolution can be reached.
Senator Hickey asked if S.B. 483 would force the TRPA into arbitration. Mr. Blanck agreed and said the TRPA could not refuse to participate in nonbinding arbitration. Senator Hickey asked if this is the crux of the TRPA's objection to the bill. Mr. Chimarusti pointed out nonbinding arbitration is, currently, an available option upon request. He continued by saying he knew of an instance where the TRPA had voluntarily participated in arbitration when a party had requested that they do so. Mr. Chimarusti said S.B. 483 made nonbinding arbitration a mandatory condition in all cases, regardless of the subject matter or dollar limit.
ASSEMBLY JOINT RESOLUTION
(A.J.R.) 17 OF THE
SIXTY-SIXTH SESSION: Creates committee of Legislators from Nevada to meet with Legislators from California to review Tahoe Regional Planning Compact.
David S. Ziegler, Executive Director, Tahoe Regional Planning Agency, introduced himself to members of the committee. He said A.J.R. 17 of the Sixty-sixth Session had come before the interim oversight committee last summer and the members had voted in opposition to the bill.
Senator Neal asked what type of dispute resolution process is currently practiced at the TRPA. Mr. Blanck explained that after the TRPA governing board takes final action, the aggrieved party could elect to file an action in the state or federal court (depending upon the location of the property). Senator Neal asked what is the process before a complaint comes before the governing board. Mr. Blanck responded by saying the complaint would be reviewed by TRPA staff to make a determination. He continued by saying the party could appeal the executive director's final determination to the TRPA governing board.
Senator Neal inquired if the TRPA executive director's final determination is put into writing. Mr. Blanck replied the executive director's final determination is put into writing and, specifically, addresses whether the request is being denied or approved. Senator Neal asked if this written determination is forwarded to the governing board. Mr. Blanck said this is the case if the party disagrees with the executive director's final determination. Senator Neal asked if the party could request another hearing before the governing board. Mr. Blanck replied this is correct. Senator Neal asked what type of permanent record is produced. Mr. Blanck responded by saying all of the governing board's meetings are tape recorded. Additionally, he explained that all of the materials submitted at a hearing are included as part of the permanent record. Senator Neal asked if a case that went to court would be a trial de novo. Mr. Blanck responded by saying this is correct.
Senator Neal is at a loss to understand what was the justification for introducing S.B. 483 in the first place. Mr. Blanck admitted he is also at a loss to explain the origin of S.B. 483. He continued by saying, in the past 5 years, the TRPA voluntarily participated in a nonbinding arbitration procedure one time only, and this particular incident had been resolved.
Senator Neal asked what is the time limit for a party to file in state or federal court after the TRPA governing board denied a request. Mr. Blanck responded by saying the TRPA compact requires a complainant to file within 60 days of the final action of the TRPA governing board. Senator Neal asked how long would it be before this same case would be heard in court. Mr. Blanck said this depended entirely upon the backlog of the court system. He guessed it would take approximately 4 to 5 years to get to trial in the State of California. However, the waiting period would be shorter in the State of Nevada, and shorter yet for the federal courts.
Senator Neal said he is aware that the State of California has an arbitration process within its judiciary process. He asked if the TRPA is willing to employ this mechanism in an effort to speed up the resolution of these types of complaints. Mr. Blanck responded by saying the TRPA is very willing, because the arbitration procedures are generally ordered by the judge. Senator Neal asked if the State of California has a process by which a complainant can request arbitration. Mr. Blanck said such a request could be made to the court and it would be up to the court to determine if the criteria met the State of California's requirements. He continued by saying the criteria utilized by the State of California is relative to the dollar amount of the case. In other words, if the case is worth less than $50,000 (on noncomplex issues), the court would order the case into nonbinding arbitration. Mr. Blanck said such an instance has never happened in the history of the TRPA, due to the complexity of the issues and the high dollar amounts involved.
Chairman Smith closed the hearing on S.B. 483 and informed those in attendance that he would hold the bill until he had an opportunity to speak with Noel E. Manoukian. He assumed there was a good reason for Mr. Manoukian to have asked Senator Shaffer to introduce this legislation.
Chairman Smith opened the hearing on Assembly Concurrent Resolution (A.C.R.) 4.
ASSEMBLY CONCURRENT
RESOLUTION 4: Directs state fire marshal and state emergency response commission, in consultation with local emergency planning committees, to study certain alternatives for providing coordinated response to incidents involving hazardous materials.
Eugene L. Williams, Assistant State Fire Marshal, Nevada State Fire Marshal Division, Nevada Department of Commerce, introduced himself to members of the committee. He pointed out the State Fire Marshal supports passage of A.C.R. 4. He explained the State Fire Marshal Division is committed to the concept and implementation of the regional hazardous materials (haz-mat) teams. He said the technical expertise these haz-mat teams have to offer, quite often, exceed the training and experience of local fire and emergency crews. Mr. Williams commented that the best and most economical method to use (when responding to a hazardous materials incident) is to supplement local fire and emergency services with the specialized skills of a regional haz-mat team.
Mr. Williams pointed out A.C.R. 4 directs the State Fire Marshal, the State Emergency Response Commission (SERC) and local emergency planning committees to conduct a study of the feasibility of creating regional response teams. He called attention to the fact that division personnel are currently gathering information in the field on this subject and anticipate having no problem with meeting the January 1, 1995 deadline set forth in A.C.R. 4.
Senator Neal asked what would be the geographical description of a "region." Mr. Williams responded by saying an integral part of the interim study would be to determine how many regions would need to be established and if some areas of the state are already well-protected. Senator Neal asked if the regions would be restricted to the State of Nevada. Mr. Williams said the regions the State Fire Marshal Division and SERC would be attempting to establish would be limited to the boundaries of the State of Nevada. However, other resources are available through a type of cooperative mutual aid system with adjoining states. Senator Neal asked if a haz-mat emergency response team, based in Reno, Nevada, might respond to an incident in Susanville, California. Mr. Williams replied this situation is quite possible.
Senator Adler said he supports passage of A.C.R. 4, and remarked he has been active in a local emergency planning committee (LEPC) in the Carson City/Lyon County area. He said many LEPCs are already forming their own regions due to the fact many members are seriously considering how to best respond to hazardous materials incidents in their general vicinities. He anticipated Carson City and Lyon, Douglas and Storey Counties will form one region, while Clark County and Washoe County will form separate regions of their own. Senator Adler stressted the importance of mapping out these regions and establishing haz-mat emergency response teams.
Senator Hickey said the United States Congress has already set aside funds for training responders to deal with high-level radioactive nuclear waste and its transportation. He pointed out the regional response teams would come under the umbrella of hazardous materials and would be eligible for these funds. Senator Hickey hoped the study set forth by A.C.R. 4 would include the transportation of nuclear waste. He asked Mr. Williams to contact Donald Bayer in an effort to provide funding for the development of this regional concept.
Senator Adler wondered if the language contained in A.C.R. 4 is broad enough to allow open discussions on the subject of high-level radioactive nuclear waste. Senator Hickey said the key word in A.C.R. 4 is "hazardous materials." He continued by saying he wanted to make this statement during the hearing and have it become part of the permanent record.
Chairman Smith momentarily closed the hearing on A.C.R. 4 and invited Senator Hickey to present subcommittee reports on the following bills: A.B. 115, A.B. 116, A.B. 122, A.B. 123 and A.B. 124.
ASSEMBLY BILL 115: Protects certain persons and organizations from liability for damages in regulating and removing hazardous materials.
ASSEMBLY BILL 116: Makes various changes regarding payment by regulated facilities of certain fees regarding 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 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.
Referencing the aforementioned bills, Senator Hickey said he had successfully obtained the consensus of the environmental agencies, the Nevada Department of Transportation (NDOT) and the industry. However, he admitted there is one exception to this overall agreement, that being A.B. 116. He said testimony received in the assembly had indicated that there were concerns about the tax portion of the bill. Specifically, it was felt that the taxes were too fragmented to allow consolidation. During the Senate Committee on Natural Resources subcommittee meeting, Senator Hickey said industry had suggested that A.B. 116 be amended to move toward consolidation by utilizing a business license number as a means of identification when tax returns are submitted.
Senator Hickey explained he had not yet received the amendment to A.B. 116, but requested that the committee take action on the bill. He offered to bring the amendment to A.B. 116 before the members of the Senate Committee on Natural Resources at an upcoming hearing. Chairman Smith called for action on A.B. 116.
SENATOR HICKEY MOVED TO AMEND AND DO PASS A.B. 116 AS AMENDED.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RHOADS AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
Senator Hickey asked Chairman Smith for permission to make a blanket motion on the following bills: A.B. 115, A.B. 122, A.B. 123, A.B. 124 and A.C.R. 4. Chairman Smith called for action on the aforementioned bills.
SENATOR HICKEY MOVED TO DO PASS A.B. 115, A.B. 122, A.B. 123, A.B. 124 and A.C.R. 4.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS 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 9:19 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 11, 1993
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