Assembly Bill No. 380–Committee on Natural Resources, Agriculture and Mining

March 3, 1999

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Referred to Committee on Natural Resources, Agriculture and Mining

 

SUMMARY—Revises provisions governing priority, forfeiture and adjudication of water rights. (BDR 48-971)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to water; revising the provisions establishing the priority of certain water rights; providing that certain evidence may be considered to show whether water has been beneficially used; clarifying the circumstances under which water becomes appurtenant to land; providing that certain surface water rights are not subject to forfeiture for failure to use water pursuant to that right within a certain period; requiring a district court to decide protests of applications to appropriate water; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. Chapter 533 of NRS is hereby amended by adding thereto

1-2 a new section to read as follows:

1-3 1. Except as otherwise provided in subsections 2 and 3 and NRS

1-4 533.492, the priority of a water right is determined according to the date

1-5 on which the holder of the right or, if the right was obtained from a

1-6 previous holder of the right, the previous holder, first:

1-7 (a) Appropriates the water;

1-8 (b) Obtains the right by decree; or

1-9 (c) Is issued a certificate for the right,

1-10 whichever is earlier.

1-11 2. Except as otherwise provided in subsection 3, if the previous

1-12 holder of the water right was the United States, the priority of the water

1-13 right is determined according to the date on which the United States first

1-14 appropriated or otherwise acquired the water right. If the water right

2-1 vested under the law in this state before appropriation or acquisition by

2-2 the United States, the priority of the water right is determined according

2-3 to the date on which the water right vested.

2-4 3. The priority of a water right granted to a person by the United

2-5 States for use in a federal reclamation project is determined according to

2-6 the date on which the United States appropriates all of the water for

2-7 initiation of the project, unless the water right vested under the law in

2-8 this state at the time the United States first appropriated or otherwise

2-9 acquired the water right. If the water right vested under the law in this

2-10 state before appropriation or acquisition by the United States, the priority

2-11 of the water right is determined according to the date on which the water

2-12 right vested.

2-13 Sec. 2. NRS 533.035 is hereby amended to read as follows:

2-14 533.035 1. Beneficial use [shall be] is the basis, the measure and the

2-15 limit of the right to the use of water.

2-16 2. Evidence including, but not limited to, the following may be

2-17 considered to show that water has been applied to beneficial use:

2-18 (a) Records of:

2-19 (1) The delivery of the water;

2-20 (2) The payment of any costs of maintenance and other operational

2-21 costs incurred in delivering the water; and

2-22 (3) The payment of any costs for capital improvements, including

2-23 works of diversion and irrigation;

2-24 (b) Data regarding production of crops;

2-25 (c) Contracts for the construction or maintenance of works of

2-26 diversion and irrigation; and

2-27 (d) Testimony of witnesses concerning the beneficial use of the water.

2-28 Sec. 3. NRS 533.040 is hereby amended to read as follows:

2-29 533.040 [All]

2-30 1. Except as otherwise provided in this section, any water used in this

2-31 state for beneficial purposes shall be deemed to remain appurtenant to the

2-32 place of use . [; provided:

2-33 1. That if for any reason it should]

2-34 2. If at any time [become] it is impracticable to use water beneficially

2-35 or economically at the place to which it is appurtenant, the right may be

2-36 severed from [such] the place of use and be simultaneously transferred and

2-37 become appurtenant to [other place or places] another place of use, in the

2-38 manner provided in this chapter, [and not otherwise,] without losing

2-39 priority of right . [heretofore established; and

2-40 2. That the]

2-41 3. The provisions of this section [shall] do not apply [in cases of] to a

2-42 ditch or canal [companies which have appropriated] company that

3-1 appropriates water for diversion and transmission to the lands of private

3-2 persons [at] for an annual charge.

3-3 4. For the purposes of this section, water is appurtenant to the place

3-4 of use if:

3-5 (a) The water is appropriated for use on a contiguous area of land,

3-6 regardless of whether the water is used only on part of that area; and

3-7 (b) The total amount of water used on that area:

3-8 (1) Does not exceed the total amount of water that has been

3-9 appropriated or obtained by decree or for which a certificate has been

3-10 issued; and

3-11 (2) Is limited to that amount which is applied to beneficial use.

3-12 Sec. 4. NRS 533.060 is hereby amended to read as follows:

3-13 533.060 1. Rights to the use of water [shall] must be limited and

3-14 restricted to [so much thereof] as much as may be necessary, when

3-15 reasonably and economically used for irrigation and other beneficial

3-16 purposes, irrespective of the carrying capacity of the ditch. [All the] The

3-17 balance of the water not so appropriated [shall] must be allowed to flow in

3-18 the natural stream from which [such] the ditch draws its supply of water,

3-19 and [shall] must not be considered as having been appropriated thereby.

3-20 2. Except as otherwise provided in [subsection 4,] subsections 4 and

3-21 5, if the owner [or owners of any such] of a ditch, canal, reservoir [, or

3-22 any] or other means of diverting any of the public water [fail] fails to use

3-23 the water therefrom [or thereby] for beneficial purposes for which the right

3-24 of use exists during any 5 successive years, the [right to so use shall be

3-25 deemed as having been abandoned, and any such owner or owners

3-26 thereupon forfeit] owner forfeits all water rights, easements and privileges

3-27 appurtenant thereto theretofore acquired, and all the water so formerly

3-28 appropriated by [such owner or owners and their predecessors in interest]

3-29 the owner may be again appropriated for beneficial use [the same as if

3-30 such ditch, canal, reservoir or other means of diversion had never been

3-31 constructed, and] by any qualified person . [may appropriate any such

3-32 water for beneficial use.

3-33 3. No]

3-34 3. A prescriptive right to the use of [such] the water or any of the

3-35 public water appropriated or unappropriated [can] may not be acquired by

3-36 [adverse user or] adverse possession . [for any period of time whatsoever,

3-37 but any] Any such right to appropriate any of [such water shall] the water

3-38 must be initiated by [first making application] applying to the state

3-39 engineer for a permit to appropriate the [same] water as provided in this

3-40 chapter . [and not otherwise.]

3-41 4. The State of Nevada reserves for its own present and future use all

3-42 rights to the use and diversion of water acquired pursuant to chapter 462,

3-43 Statutes of Nevada 1963, or otherwise existing within the watersheds of

4-1 Marlette Lake, Franktown Creek and Hobart Creek and not lawfully

4-2 appropriated on April 26, 1963, by any person other than the Marlette

4-3 Lake Company. [No such right may] Such a right must not be

4-4 appropriated by any person without the express consent of the legislature.

4-5 5. The provisions of subsection 2 do not apply to a surface water

4-6 right that is established by a decree or other adjudication of a court.

4-7 Sec. 5. NRS 533.365 is hereby amended to read as follows:

4-8 533.365 1. Any person interested may, within 30 days [from] after

4-9 the date of the last publication of the notice of application, file with the

4-10 [state engineer] district court of the county in which the water is proposed

4-11 to be appropriated a written protest against the granting of the application .

4-12 [, setting] The protest must set forth with reasonable certainty the grounds

4-13 [of such protest, which shall] for the protest and must be verified by the

4-14 affidavit of the protestant, his agent or attorney. At the time the protest is

4-15 filed, a copy of the protest must be served upon the applicant by certified

4-16 mail.

4-17 2. On receipt of a protest, the [state engineer shall advise the applicant

4-18 whose application has been protested of the fact that the protest has been

4-19 filed with him, which advice shall be sent by certified mail.

4-20 3. The state engineer shall consider the protest, and may, in his

4-21 discretion, hold hearings and require the filing of such evidence as he may

4-22 deem necessary to a full understanding of the rights involved. The state

4-23 engineer shall give notice of the hearing by certified mail to both the

4-24 applicant and the protestant. The notice must state the time and place at

4-25 which the hearing is to be held and must be mailed at least 15 days before

4-26 the date set for the hearing.

4-27 4. The state engineer shall adopt rules of practice regarding the

4-28 conduct of such hearings. The rules of practice must be adopted in

4-29 accordance with the provisions of NRS 233B.040 to 233B.120, inclusive,

4-30 and codified in the Nevada Administrative Code. The technical rules of

4-31 evidence do not apply at such a hearing.] district court shall schedule a

4-32 hearing to determine the respective rights of the applicant and the

4-33 protestant.

4-34 3. The Nevada Rules of Civil Procedure apply to any hearing

4-35 conducted pursuant to this section. After the protest is filed and a copy of

4-36 the protest is served upon the applicant, a party may invoke any method

4-37 of discovery that is available under those rules if, and to the extent that,

4-38 the judge for good cause shown grants leave to invoke that method of

4-39 discovery. A request for discovery that is available under those rules must

4-40 be accompanied by a statement of the interrogatories or requests for

4-41 admission and a list of any documents sought to be produced. If the

4-42 protestant alleges that any water right at issue has been perfected,

4-43 forfeited or abandoned, the protestant bears the burden of proving the

5-1 existence of the perfection, forfeiture or abandonment of the water right

5-2 by a preponderance of the evidence.

5-3 4. After considering any evidence presented at the hearing, the

5-4 district court shall enter an order declaring the respective rights of the

5-5 parties.

5-6 Sec. 6. NRS 533.370 is hereby amended to read as follows:

5-7 533.370 1. Except as otherwise provided in NRS 533.345, 533.371,

5-8 533.372 and 533.503 and this section, the state engineer shall approve an

5-9 application submitted in proper form which contemplates the application of

5-10 water to beneficial use if:

5-11 (a) The application is accompanied by the prescribed fees;

5-12 (b) The proposed use or change, if within an irrigation district, does not

5-13 adversely affect the cost of water for other holders of water rights in the

5-14 district or lessen the [district’s] efficiency of the district in its delivery or

5-15 use of water; and

5-16 (c) The applicant provides proof satisfactory to the state engineer of:

5-17 (1) His intention in good faith to construct any work necessary to

5-18 apply the water to the intended beneficial use with reasonable diligence;

5-19 and

5-20 (2) His financial ability and reasonable expectation actually to

5-21 construct the work and apply the water to the intended beneficial use with

5-22 reasonable diligence.

5-23 2. Except as otherwise provided in subsection 5, the state engineer

5-24 shall [either] approve or reject each application within 1 year after the final

5-25 date for filing a protest. However:

5-26 (a) Action [can] may be postponed by the state engineer upon written

5-27 authorization to do so by the applicant or, [in case of a protested

5-28 application, by both the protestant and the applicant;] if the application is

5-29 protested pursuant to NRS 533.365, until the decision of the district court

5-30 in that proceeding becomes final; and

5-31 (b) In areas where studies of water supplies are being made or where

5-32 court actions are pending, the state engineer may withhold action until it is

5-33 determined there is unappropriated water or the court action becomes final.

5-34 3. Except as otherwise provided in subsection 5, [where] if there is no

5-35 unappropriated water in the proposed source of supply, or [where its] if the

5-36 proposed use or change set forth in the application conflicts with existing

5-37 rights [,] or threatens to prove detrimental to the public interest, the state

5-38 engineer shall reject the application and refuse to issue the requested

5-39 permit. [Where] If a previous application for a similar use of water within

5-40 the same basin has been rejected on [these] those grounds, the new

5-41 application may be denied without publication.

5-42 4. If a hearing is held regarding an application, the decision of the state

5-43 engineer must be in writing and include findings of fact, conclusions of

6-1 law and a statement of the underlying facts supporting the findings of fact.

6-2 The written decision may take the form of a transcription of an oral ruling.

6-3 The rejection or approval of an application must be endorsed on a copy of

6-4 the original application, and a record made of the endorsement in the

6-5 records of the state engineer. The copy of the application so endorsed must

6-6 be returned to the applicant. Except as otherwise provided in subsection 6,

6-7 if the application is approved, the applicant may, on receipt thereof,

6-8 proceed with the construction of the necessary works and take [all] any

6-9 steps required to apply the water to beneficial use and to perfect the

6-10 proposed appropriation. If the application is rejected , the applicant may

6-11 not take [no] any steps toward the prosecution of the proposed work or the

6-12 diversion and use of the public water [so] as long as the rejection continues

6-13 in force.

6-14 5. The provisions of subsections 1, 2 and 3 do not apply to an

6-15 application for an environmental permit.

6-16 6. The provisions of subsection 4 do not authorize the recipient of an

6-17 approved application to use any state land administered by the division of

6-18 state lands of the state department of conservation and natural resources

6-19 without the appropriate authorization for [such a] that use from the state

6-20 land registrar.

6-21 Sec. 7. NRS 533.435 is hereby amended to read as follows:

6-22 533.435 1. The state engineer shall collect the following fees:

6-23 For examining and filing an application for a permit

6-24 to appropriate water $250.00

6-25 This fee includes the cost of publication, which

6-26 is $50.

6-27 For examining and acting upon plans and

6-28 specifications for construction of a dam 500.00

6-29 For examining and filing an application for each

6-30 permit to change the point of diversion, manner of

6-31 use or place of use of an existing right 150.00

6-32 This fee includes the cost of the publication of

6-33 the application, which is $50.

6-34 For issuing and recording each permit to appropriate

6-35 water for any purpose, except for generating

6-36 hydroelectric power which results in

6-37 nonconsumptive use of the water or watering

6-38 livestock or wildlife purposes 150.00

6-39 plus $2 per acre-foot approved or fraction

6-40 thereof.

7-1 For issuing and recording each permit to change an

7-2 existing right whether temporary or permanent for

7-3 any purpose, except for generating hydroelectric

7-4 power which results in nonconsumptive use of the

7-5 water, for watering livestock or wildlife purposes

7-6 which change the point of diversion or place of

7-7 use only, or for irrigational purposes which

7-8 change the point of diversion or place of use only $100.00

7-9 plus $2 per acre-foot approved or fraction

7-10 thereof.

7-11 For issuing and recording each permit to change the

7-12 point of diversion or place of use only of an

7-13 existing right whether temporary or permanent for

7-14 irrigational purposes 200.00

7-15 For issuing and recording each permit to appropriate

7-16 or change the point of diversion or place of use of

7-17 an existing right only whether temporary or

7-18 permanent for watering livestock or wildlife

7-19 purposes for each second-foot of water approved

7-20 or fraction thereof 50.00

7-21 For issuing and recording each permit to appropriate

7-22 or change an existing right whether temporary or

7-23 permanent for water for generating hydroelectric

7-24 power which results in nonconsumptive use of the

7-25 water for each second-foot of water approved or

7-26 fraction thereof 100.00

7-27 This fee must not exceed $1,000.

7-28 For filing a secondary application under a reservoir

7-29 permit 200.00

7-30 For approving and recording a secondary permit

7-31 under a reservoir permit 200.00

7-32 For reviewing each tentative subdivision map 150.00

7-33 plus $1 per lot.

7-34 For storage approved under a dam permit for

7-35 privately owned nonagricultural dams which store

7-36 more than 50 acre-feet 100.00

7-37 plus $1 per acre-foot storage capacity. This fee

7-38 includes the cost of inspection and must be

7-39 paid annually.

7-40 For filing proof of completion of work 10.00

7-41 For filing proof of beneficial use 50.00

7-42 For filing any protest pursuant to NRS 534.270 25.00

8-1 For filing any application for an extension of time

8-2 within which to file proofs $100.00

8-3 For examining and filing a report of conveyance

8-4 filed pursuant to paragraph (a) of subsection 1 of

8-5 NRS 533.384 25.00

8-6 plus $10 per conveyance document

8-7 For filing any other instrument 1.00

8-8 For making a copy of any document recorded or

8-9 filed in his office, for the first page 1.00

8-10 For each additional page .20

8-11 For certifying to copies of documents, records or

8-12 maps, for each certificate 1.00

8-13 For each blueprint copy of any drawing or map, per

8-14 square foot .50

8-15 The minimum charge for a blueprint copy, per print 3.00

8-16 2. [When] If any fees are not specified in subsection 1 for work

8-17 required of his office, the state engineer shall collect the actual cost of the

8-18 work.

8-19 3. Except as otherwise provided in this subsection, all fees collected by

8-20 the state engineer under the provisions of this section must be deposited in

8-21 the state treasury for credit to the state general fund. All fees received for

8-22 blueprint copies of any drawing or map must be kept by him and used only

8-23 to pay the costs of printing, replacement and maintenance of printing

8-24 equipment. Any publication fees received which are not used by him for

8-25 publication expenses must be returned to the persons who paid the fees. If,

8-26 after exercising due diligence, the state engineer is unable to make the

8-27 refunds, he shall deposit the fees in the state treasury for credit to the state

8-28 general fund. The state engineer may maintain, with the approval of the

8-29 state board of examiners, a checking account in any bank qualified to

8-30 handle state money to carry out the provisions of this subsection. The bank

8-31 account must be secured by a depository bond satisfactory to the state

8-32 board of examiners to the extent the account is not insured by the Federal

8-33 Deposit Insurance Corporation.

8-34 Sec. 8. NRS 233B.039 is hereby amended to read as follows:

8-35 233B.039 1. The following agencies are entirely exempted from the

8-36 requirements of this chapter:

8-37 (a) The governor.

8-38 (b) The department of prisons.

8-39 (c) The University and Community College System of Nevada.

8-40 (d) The office of the military.

8-41 (e) The state gaming control board.

8-42 (f) The Nevada gaming commission.

9-1 (g) The welfare division of the department of human resources.

9-2 (h) The state board of examiners acting pursuant to chapter 217 of NRS.

9-3 (i) [Except as otherwise provided in NRS 533.365, the] The office of

9-4 the state engineer.

9-5 2. Except as otherwise provided in NRS 391.323, the department of

9-6 education, the committee on benefits and the commission on professional

9-7 standards in education are subject to the provisions of this chapter for the

9-8 purpose of adopting regulations but not with respect to any contested case.

9-9 3. The special provisions of:

9-10 (a) Chapter 612 of NRS for the distribution of regulations by and the

9-11 judicial review of decisions of the employment security division of the

9-12 department of employment, training and rehabilitation;

9-13 (b) Chapters 616A to 617, inclusive, of NRS for the determination of

9-14 contested claims;

9-15 (c) Chapter 703 of NRS for the judicial review of decisions of the

9-16 public utilities commission of Nevada;

9-17 (d) Chapter 91 of NRS for the judicial review of decisions of the

9-18 administrator of the securities division of the office of the secretary of

9-19 state; and

9-20 (e) NRS 90.800 for the use of summary orders in contested cases,

9-21 prevail over the general provisions of this chapter.

9-22 4. The provisions of NRS 233B.122, 233B.124, 233B.125 and

9-23 233B.126 do not apply to the department of human resources in the

9-24 adjudication of contested cases involving the issuance of letters of

9-25 approval for health facilities and agencies.

9-26 5. The provisions of this chapter do not apply to:

9-27 (a) Any order for immediate action, including, but not limited to,

9-28 quarantine and the treatment or cleansing of infected or infested animals,

9-29 objects or premises, made under the authority of the state board of

9-30 agriculture, the state board of health, the state board of sheep

9-31 commissioners or any other agency of this state in the discharge of a

9-32 responsibility for the preservation of human or animal health or for insect

9-33 or pest control; or

9-34 (b) An extraordinary regulation of the state board of pharmacy adopted

9-35 pursuant to NRS 453.2184.

9-36 6. The state board of parole commissioners is subject to the provisions

9-37 of this chapter for the purpose of adopting regulations but not with respect

9-38 to any contested case.

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