MINUTES OF THE

ASSEMBLY SubCommittee on Natural Resources, Agriculture, and Mining

Seventieth Session

April 3, 1999

 

The Subcommittee on Natural Resources, Agriculture, and Mining was called to order at 9:15 a.m., on Saturday, April 3, 1999. Chairman Marcia de Braga presided in Room 3161 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

COMMITTEE MEMBERS PRESENT:

Mrs. Marcia de Braga, Chairman

Mr. Lynn Hettrick

COMMITTEE MEMBERS ABSENT:

Mr. Roy Neighbors (Excused)

STAFF MEMBERS PRESENT:

Linda Eissmann, Committee Policy Analyst

Sharon Spencer, Committee Secretary

OTHERS PRESENT:

Michael Turnipseed, State Engineer, Division of Water Resources

Norman Frey, Chairman, Newlands Water Protective Association

Michael Mackedon, Fallon City Attorney

Tebeau Piquet, Private Citizen

Mike Baughman, Representing Humboldt River Basin Water Authority

Michael Lynch, Representing Builders Association of Nevada

Norman Harry, Chairman, Pyramid Lake Paiute Tribal Council

Robert Pelcyger, Attorney, Pyramid Lake Paiute Tribal Council

Cassidy Williams, Chairman, Walker River Paiute Tribal Council

Gerry Emm, Private Citizen

Ernest Schank, President, Truckee Carson Irrigation District

Virgil Getto, Member, Newlands Water Protective Association

Janet Carson, Director of Water Policy, Sierra Pacific Power Company

Steve Walker, Water Management Planner, Washoe County

Sonya Johnson, Private Citizen

Greg Dennis, Senior Engineer, City of Reno

Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation

Tina Nappe, Private Citizen

Nancy Henker, Private Citizen

Edwin James, General Manager, Carson Water Subconservancy District

After roll was called the Chairman informed the committee and audience the subcommittee was a work session to discuss A.B. 380 and A.B. 412 together because both measures had interrelated issues, which needed to be considered simultaneously. She explained testimony was not heard in subcommittee hearings, but she make an exception because of the complex issues contained within the two measures. She opened the subcommittee hearing on A.B. 380 and A.B. 412.

Assembly Bill 380: Revises provisions governing priority, forfeiture and adjudication of water rights. (BDR 48-971)

Assembly Bill 412: Revises provisions relating to certain water rights. (BDR S-1278)

Linda Eissmann, Legislative Counsel Bureau policy analyst, provided the committee with the following handouts, which were various changes to the proposed legislation:

The following amendment, as drafted by Ms. Eissmann, was the result of two subcommittee meetings on A.B. 380, which took place March 16, 1999, and April 3, 1999. It was based on the second revision discussed at the last subcommittee meeting, modified to incorporate comments made during testimony:

 

 

 

1. Adds a new section to NRS Chapter 533 (proposed as 533.043) to read as:

"The priority of a water right acquired by a person for use in a federal reclamation project is determined according to the date on which the United States appropriated water for initiation of the project and all such water rights so acquired are governed by the applicable Nevada law in place as of the priority date, notwithstanding the fact that the water rights so appropriated and acquired may ultimately vest in the name of a person at a later date, except in the case of a water right which vests under the law of this state prior to the time the United States first appropriated or otherwise acquired the water for initiation of the project. No additional water rights, as allocated under applicable court decrees, are stated or implied by the determination of the priority date pursuant to this section."

2. Amends NRS 533.040 to read as follows:

All water used in this state for beneficial purposes shall remain appurtenant to the place of use; provided:

1. That if for any reason it should at any time become impracticable to use water beneficially or economically at the place to which it is appurtenant, the right may be severed from such place of use and simultaneously transferred and become appurtenant to other place or places of use, in the manner provided in this chapter, and not otherwise, without losing priority of right heretofore established; [and]

2. That the provisions of this section shall not apply in cases of ditch or canal companies [or irrigation districts] which have appropriated water for diversion and transmission to the lands of private persons at an annual charge; and

3. For the purposes of this section, a water right in a federal reclamation project is appurtenant to the property of a water right owner within the project and may be used on the property of the water right owner provided that the water used does not exceed the total amount of water owned by the holder of the water right. [any place of use within the project or if the place of use is described in a document evidencing the right, then the water right is appurtenant to and may be used anywhere within the described area provided that the total amount of water used on that area does not exceed the total amount of water that has been appropriated.]

3. Amends NRS 533.060 to read as follows:

NRS 533.060

1. Rights to use the water shall be limited and restricted to so much thereof as may be necessary, when reasonably and economically used for irrigation and other beneficial purposes, irrespective of the carrying capacity of the ditch. All the balance of the water not so appropriated shall be allowed to flow in the natural stream from which such ditch draws its supply of water, and shall not be considered as having been appropriated thereby.

2. [Except as otherwise provided in subsection 4, if the owner or owners of any such ditch, canal, reservoir, or any other means of diverting any of the public water fail to use the water therefrom or thereby for beneficial purposes for which the right of use exists during any 5 successive years, the right to so use shall be deemed as having been abandoned, and any such owner or owners thereupon forfeit all water rights, easements and privileges appurtenant thereto theretofore acquired, and all the water so formerly appropriated by such owner or owners and their predecessors in interest may be again appropriated for beneficial use the same as if such ditch, canal, reservoir or other means of diversion had never been constructed an any qualified person may appropriate any such water for beneficial use.] Rights to the use of surface water may not be lost or forfeited through non-use.

3. "Upon failure for five successive years on the part of the holder of any right to appropriate surface water to use beneficially all or any part of the surface water for which the right is acquired or claimed the right to so use, shall be deemed as having been abandoned only upon a clear and conclusive showing of the intent to abandon the surface water right."

4. "Evidence including, but not limited to, the following may be considered to create a presumption that the right to use the water has not been abandoned [during a period when the holder of a right can provide]:

a. Records or other proof of:

(1) The delivery of water;

(2) The payment of any costs of maintenance and other operational costs incurred in delivering the water; or

(3) The payment of any costs for capital improvements, including works of diversion and irrigation; or

(4) Actual maintenance performed."

[b. Data regarding production of crops;

c. Maintenance of or contracts for the construction or maintenance of works of diversion and irrigation; or

d. "Water rights that have been recognized in a local ordinance or its equivalent as a part of their future water supply by a governing body of any local government of this state or any public utility which is a purveyor of water within the state."

e. No prescriptive right to the use of such water or any of the public water appropriated or unappropriated can be acquired by adverse user or adverse possession for any period of time whatsoever, but any such right to appropriate any of such water shall be initiated by first making application to the state engineer for a permit to appropriate the same as provided in this chapter and not otherwise.

f. The State of Nevada reserves for its own present and future use all rights to the use and diversion of water acquired pursuant to chapter 462, State of Nevada 1963, or otherwise existing within the watersheds of Marlette Lake, Franktown Creek and Hobart Creek and not lawfully appropriate on April 26, 1963, by any person other than the Marlette Lake Company. No such right may be appropriated by any person without the express consent of the legislature.

The following handouts were provided to the subcommittee:

Chairman de Braga asked if there were any additional questions or comments for the committee. As there were none, the meeting was adjourned at 1:15 p.m.

RESPECTFULLY SUBMITTED:

 

Sharon Spencer,

Committee Secretary

APPROVED BY:

 

 

Assemblywoman Marcia de Braga, Chairman

 

DATE: