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

March 3, 1999

____________

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.

~

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; 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. The priority of a water right acquired by a person for use in a

1-4 federal reclamation project is determined according to the date on which

1-5 the United States appropriated water for initiation of the project.

1-6 Notwithstanding the fact that the water right so appropriated and

1-7 acquired may ultimately vest in the name of the person at a later date, all

1-8 such water rights so acquired are governed by the applicable law of this

1-9 state in effect on the date on which the United States appropriated water

1-10 for initiation of the project, unless the water rights vested under the law

1-11 in this state before the time the United States first appropriated or

1-12 otherwise acquired the water for initiation of the project. If the water

1-13 right vested under the law in this state before appropriation or

1-14 acquisition by the United States, the date of initiation of the water right is

2-1 determined according to the date on which the water was first diverted

2-2 under that appropriation or acquisition by the United States.

2-3 2. No water rights, in addition to those allocated under applicable

2-4 court decrees, are granted, stated or implied by the determination of the

2-5 date of priority pursuant to subsection 1.

2-6 Sec. 2. NRS 533.040 is hereby amended to read as follows:

2-7 533.040 [All]

2-8 1. Except as otherwise provided in this section, any water used in this

2-9 state for beneficial purposes shall be deemed to remain appurtenant to the

2-10 place of use . [; provided:

2-11 1. That if for any reason it should]

2-12 2. If at any time [become] it is impracticable to use water beneficially

2-13 or economically at the place to which it is appurtenant, the right may be

2-14 severed from [such] the place of use and be simultaneously transferred and

2-15 become appurtenant to [other place or places] another place of use, in the

2-16 manner provided in this chapter, [and not otherwise,] without losing

2-17 priority of right . [heretofore established; and

2-18 2. That the]

2-19 3. The provisions of this section [shall] do not apply [in cases of] to a

2-20 ditch or canal [companies which have appropriated] company that

2-21 appropriates water for diversion and transmission to the lands of private

2-22 persons [at] for an annual charge.

2-23 4. For the purposes of this section, a water right acquired for use in

2-24 a federal reclamation project shall be deemed to be appurtenant to the

2-25 property of any person who owns water rights within the project and may

2-26 be used on any portion of that property within the project if the

2-27 cumulative amount of water so used does not exceed the total amount of

2-28 water owned by the holder of the water right.

2-29 Sec. 3. NRS 533.060 is hereby amended to read as follows:

2-30 533.060 1. Rights to the use of water [shall] must be limited and

2-31 restricted to [so much thereof] as much as may be necessary, when

2-32 reasonably and economically used for irrigation and other beneficial

2-33 purposes, irrespective of the carrying capacity of the ditch. [All the] The

2-34 balance of the water not so appropriated [shall] must be allowed to flow in

2-35 the natural stream from which [such] the ditch draws its supply of water,

2-36 and [shall] must not be considered as having been appropriated thereby.

2-37 2. [Except as otherwise provided in subsection 4, if the owner or

2-38 owners of any such ditch, canal, reservoir, or any other means of diverting

2-39 any of the public water fail to use the water therefrom or thereby for

2-40 beneficial purposes for which the right of use exists during any 5

2-41 successive years, the right to so use shall be deemed as having been

2-42 abandoned, and any such owner or owners thereupon forfeit all water

2-43 rights, easements and privileges appurtenant thereto theretofore acquired,

3-1 and all the water so formerly appropriated by such owner or owners and

3-2 their predecessors in interest may be again appropriated for beneficial use

3-3 the same as if such ditch, canal, reservoir or other means of diversion had

3-4 never been constructed, and any qualified person may appropriate any such

3-5 water for beneficial use.

3-6 3. No] Rights to the use of surface water shall not be deemed to be

3-7 lost or otherwise forfeited for the failure to use the water therefrom for a

3-8 beneficial purpose. In a determination of whether a right to use surface

3-9 water has been abandoned, a presumption that the right to use the

3-10 surface water has not been abandoned is created upon the submission of:

3-11 (a) Records, photographs, receipts, contracts, affidavits or any other

3-12 proof of the occurrence of any of the following events or actions within a

3-13 10-year period immediately preceding any claim that the right to use the

3-14 water has been abandoned:

3-15 (1) The delivery of water;

3-16 (2) The payment of any costs of maintenance and other operational

3-17 costs incurred in delivering the water;

3-18 (3) The payment of any costs for capital improvements, including

3-19 works of diversion and irrigation; or

3-20 (4) The actual performance of maintenance related to the delivery

3-21 of the water.

3-22 (b) A copy of a local ordinance or other equivalent governmental

3-23 document in which the governing body of a local government of this state

3-24 or a public utility which is a purveyor of water within this state requires

3-25 the dedication of or otherwise recognizes the water rights as a resource

3-26 for the current or future municipal water supply.

3-27 3. A prescriptive right to the use of [such] the water or any of the

3-28 public water appropriated or unappropriated [can] may not be acquired by

3-29 [adverse user or] adverse possession . [for any period of time whatsoever,

3-30 but any] Any such right to appropriate any of [such water shall] the water

3-31 must be initiated by [first making application] applying to the state

3-32 engineer for a permit to appropriate the [same] water as provided in this

3-33 chapter . [and not otherwise.]

3-34 4. The State of Nevada reserves for its own present and future use all

3-35 rights to the use and diversion of water acquired pursuant to chapter 462,

3-36 Statutes of Nevada 1963, or otherwise existing within the watersheds of

3-37 Marlette Lake, Franktown Creek and Hobart Creek and not lawfully

3-38 appropriated on April 26, 1963, by any person other than the Marlette

3-39 Lake Company. [No such right may] Such a right must not be

3-40 appropriated by any person without the express consent of the legislature.

3-41 Sec. 4. This act becomes effective upon passage and approval.

~