MINUTES OF THE meeting

of the

ASSEMBLY Committee on Natural Resources, Agriculture, and Mining

 

Seventy-First Session

March 19, 2001

 

 

The Committee on Natural Resources, Agriculture, and Miningwas called to order at 1:30 p.m., on Monday, March 19, 2001.  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.    Tom Collins, Vice Chairman

Mr.    David Brown

Mr.    John Carpenter

Mr.    Jerry Claborn

Mr.    David Humke

Mr.    John Marvel

Mr.    Harry Mortenson

Mr.    Roy Neighbors

Ms.   Genie Ohrenschall

 

COMMITTEE MEMBERS ABSENT:

 

Mr.    John J. Lee

Mr.    Douglas Bache

 

GUEST LEGISLATORS PRESENT:

 

None

 

STAFF MEMBERS PRESENT:

 

Linda Eissmann, Committee Policy Analyst

June Rigsby, Committee Secretary

 

OTHERS PRESENT:

 

Steve Bremer, Chief, Administrative Services, Nevada Department of Conservation and Natural Resources, Division of Wildlife

Dave Sanger, Staff Biologist, Nevada Department of Conservation and Natural Resources, Division of Wildlife

Robert Beach, State Director, Nevada Animal Damage Control Program

Gene Weller, Deputy Administrator, Nevada Department of Conservation and Natural Resources, Division of Wildlife

Gerald Lent, Nevada Hunters’ Association

Larry Johnson, Nevada Bighorns Unlimited

Bill Bradley, Vice Chairman, Nevada Sportsmen

Doug Busselman, Executive Vice President, Nevada Farm Bureau

Joe Guild, President, Nevada Cattlemen’s Association

Joe Johnson, Toiyabe Chapter of the Sierra Club

Merritt Yochum, Independent American Party

Yvonne Silva, State Health Administrator, Nevada State Health Division

Galen Denio, Manager, Public Health Engineering, Nevada Health Division

 

 

Chairman de Braga opened the hearing on A.B. 199.

 

Assembly Bill 199:  Revises provisions governing certain accounts, licenses and stamps administered by division of wildlife of state department of conservation and natural resources. (BDR 45-529)

 

 

Steve Bremer, Chief, Administrative Services, Nevada Division of Wildlife commenced testimony in support of A.B. 199. The first two sections of the bill were described as housekeeping items. It provided for proceeds from the sale of the trout stamp to be deposited in the trout management account (Budget Account 4454). Section 3 provided for an increase in the statewide petty cash funds from $300 to $1,000. Mr. Bremer explained that this would streamline the reimbursement of petty funds to employees for items of nominal dollar value.

 

Section 4 increased the size of the Wildlife Division statewide change funds from $500 to $3,000. This was designed to expedite making change for customers in the office. Also in the area of customer service, Mr. Bremer stated that three new offices, Henderson, Winnemucca, and Ely, had been opened to serve rural clients.

 

Sections 5, 6, and 7 of A.B. 199 allowed the Wildlife Division to set the price of the trout stamp, with the proceeds to be deposited in the trout management account. Section 7 clarified that the account would be an interest-bearing account.

 

Mr. Bremer respectfully requested consideration of some housekeeping amendments that had come to their attention during the preparation of their new licensing system. He distributed a handout (Exhibit C) that outlined each amendment. The first was described as housekeeping.  It declared a ten cent commission on the sale of each trout stamp, and it eliminated the wording “or similar document.”  

 

The second amendment was designed to modify the expiration date of the hunting or fishing license and to allow the purchase of a new license before the beginning of the license period on March 1. The license would therefore be valid from March 1 until February 28 of the following year.

 

The third and fourth amendments were designed in anticipation of the implementation of the new automated license system. It would allow the agency to issue a stamp privilege without actually issuing a physical stamp to affix on the license. A customer would be able to file an application over the Internet. Mr. Bremer noted that one change had already been addressed in A.B. 199. Specifically, this referred to the $5 fee for each trout stamp.

 

Assemblyman Marvel asked if there would be public hearings on the $5 fee. Mr. Bremer replied that the draft regulation would go to public hearings, followed by a workshop process, a public vote and discussion. The fee was estimated at slightly more than $10.  Mr. Bremer explained that the engineering costs were being analyzed to determine the appropriate fee.

 

In response to Assemblyman Marvel, David Sanger, Biologist for the Division of Wildlife, explained that the total revenues anticipated from this $5 fee assessment were $430,000 per year.

 

Assemblyman Claborn asked if a computer system had been used to expedite the application process and if that was the principal reason for the proposal. Mr. Bremer replied in the affirmative and explained that an application could be completed at home.

 

Chairman de Braga, after conferring with Linda Eissmann, Committee Policy Analyst, declared the hearing closed on A.B. 199. Although amendments were accepted during committee meetings, Chairman de Braga expressed concern that the amendments did not fit the bill. The proposed amendments referenced different portions of the NRS chapter.  Chairman de Braga requested that the Division of Wildlife match the amendments to the appropriate subsections of the statute. The hearing would be rescheduled at a later time.

 

Chairman de Braga opened the hearing on A.B. 291.

 

Assembly Bill 291:  Imposes additional fee for game tags for support of   programs to control predators and protect wildlife habitat. (BDR 45-160)

 

Assemblyman Claborn distributed a handout (Exhibit D) and commenced testimony in support of A.B. 291. The invasion of predators in Nevada was posing a serious threat to the wildlife and big game animal populations. The numbers of predators (e.g., ravens, coyotes, mountain lions, skunks, and badgers) were steadily increasing while the herds of deer, antelope, sheep and sage grouse were decreasing at an alarming rate.

 

The Nevada terrain did not provide sufficient resources for the natural herds to survive. Drought, forest fire, poor management oversight, and the abundance of predators were cited as reasons for this situation.  Incidents of predators attacking domestic pets in residential areas were becoming increasingly commonplace. Some Nevada farmers were losing up to 30 percent of their livestock newborns to predators.

 

Assemblyman Claborn made reference to a 1992 a study of sage grouse. Of the 1,400 eggs placed in an artificial nest, no eggs had survived after the 15-day incubation period.  Ravens were determined to be the chief nest predator.

 

In regard to the cougar, a complicating factor was that the cougar was designated as a big game animal, which precluded the management of the numbers of cougars except by hunters with a tag. The mountain lion operated by ambush and was known to stalk watering holes where wildlife gathered. Coyotes finished eating what the cougars killed.

 

Assemblyman Claborn emphasized that as their numbers increased, the predators had become bolder in their invasion of urban areas. The coyote population was at an all time high across the nation, with average litters of five pups.

 

The primary objective of A.B. 291 was to create a program aimed at restoring the natural balance of predators and the big game animals upon which they preyed. The creation of an independent source of funding for this program was accomplished through the assessment of a $3 fee on each big game application. As such, Assemblyman Claborn declared that the program would be self-supporting. A survey of hunters had indicated that most would be willing to pay an extra $5 in support of predator management programs. Assemblyman Claborn emphasized that the problem was at a crisis stage and threatened the viability of the vital hunting economy in Nevada.

 

Assemblyman Claborn called the committee’s attention to the amendments in red ink in his handout (Exhibit D).  In summary, Assemblyman Claborn stated that a principal difference was the upfront assessment of the fee on applications and not just on awarded tags.

 

Assemblyman Marvel asked if the Division of Wildlife supported the bill. Assemblyman Claborn responded in the affirmative and requested that he be allowed to resume his seat in order to pose a series of questions to Mr. Beach, Administrator for the Division of Resource Protection of the Department of Agriculture and the USDA Wildlife Services.

 

Assemblyman Claborn commenced formal questioning of the witness. He asked if revenues of $300,000 would be enough to fund statewide predator management programs.  Mr. Beach stated that it was his understanding that the purpose would not be for implementation of statewide predator control. Rather, it would target specific locations where the game herds were judged to be threatened. A request would be made by the Division of Wildlife, and the fees would be assigned to the target area.

 

Assemblyman Claborn asked if protection of the natural resource differed from protection of the agricultural animal resource. Mr. Beach replied that there was little difference. Rather than predator control, his agency performed resource protection during vulnerable periods of reproduction. Those resources included sheep as well as wild deer herds.

 

In response to Assemblyman Claborn, Mr. Beach explained the areas targeted for protection were chosen by the Division of Wildlife.  When the game inventory (e.g., fawn to doe ratio or the sage grouse wing count) dropped below a threshold, Mr. Beach’s agency was called in to restore the ratio. Wildlife protection was geared toward the resources and not the predator. If the predation was predominantly on the fawn population, the coyote was targeted with efforts to stop the damage.  

 

According to Mr. Beach, the Division of Natural Resource Protection had worked cooperatively with Nevada Department of Wildlife (NDOW) for many years. In way of historical review, Mr. Beach explained that a Predatory Animal and Rodent Committee  (PARC), originally set up to work under the supervision of the National Wildlife Services, was moved into the Department of Agriculture. It then became the Division of Resource Protection. As such, the relationship between agencies was well established, and a 50-50 split of the work followed. Generally, program management was handled on the federal side, while the actual fieldwork was performed by the state. Funding was described as slightly heavier on the federal end than on the state side.

 

Assemblyman Carpenter asked about the effectiveness of raven control in the protection of the sage grouse. Mr. Beach described a situation where an overpopulation of ravens currently posed a serious threat to the Nevada sage grouse. He described an aviacide chemical that was planted in artificial grouse nests to specifically target raven predators. This effort had successfully reduced the raven population and had allowed the grouse to successfully hatch. It offered protection to the young calf population as well, which often fell victim to the ravens.

 

Gene Weller, Deputy Administrator for the Nevada Division of Wildlife, commenced testimony. The position of his agency on A.B. 291 was declared to be neutral. The lack of formal endorsement was attributed to the proposed addition of a fee to big game hunting applications. In his opinion, this ran counter to the Governor’s official promise not to raise taxes or fees.

 

Mr. Weller stated that his agency believed that predators were cyclic in nature and a natural part of any eco-system. Surveys indicated strong concern regarding the impact of predators on big game populations. In response, Wildlife had implemented predator management programs, with a science-based and goal-focused predator management approach. Mr. Weller emphatically stated that his agency did not support the indiscriminate killing of predators. The education of sportsmen and the general public on the role of predators was judged to be essential.

 

Assemblyman Collins asked if personnel vacancies were a problem in his agency. As a self-supporting agency, Mr. Weller stated the hiring freeze had little impact, and he considered his agency to be adequately staffed.

 

Assemblyman Marvel asked for the scientific results of the predator studies. Mr. Weller replied that his agency did not actively conduct surveys or inventories of animals. The newly established contract between his agency and the Division of Wildlife would enable the sharing of information. Mr. Weller added that their staff biologists spent a lot of time in the field and had good awareness of predator status.

 

Mr. Beach added that positive results were being reported on the sage grouse wing counts. Because hunters had heard of the decline in sage grouse, there were fewer wings to count last year. As such, results were only preliminary, and it would take additional hunting seasons to complete the wing counts. The best evidence of positive results in predator management was in the fawn to doe ratios and in the sheep population.

 

Assemblyman Marvel requested clarification on the fee that would be assessed, specifically, if it were a voluntary fee, would it sidestep the Governor’s mandate. Mr. Weller explained that sportsmen were currently allowed to donate voluntary funds for predator control.

 

In response to Assemblyman Brown, Mr. Weller stated that there were 99,000 game tag applications received last year. Revenues were estimated at $300,000. In regard to successful techniques, Mr. Weller stated that the key was locating specific areas where game reproduced and to target those areas for actual removal of animals.

 

Mr. Beach added that the success of predator management would depend a lot upon location and the type of predator. He restated their goal was the protection of the resource and not necessarily the removal of the predator. Non‑lethal tools were preferred.

 

In response to Assemblyman Brown, Mr. Beach confirmed that the three primary predators in Nevada were the raven, the coyote, and the wildcat.  He added that the red fox was migrating from Utah and had the potential to devastate the sage grouse.

 

Assemblyman Carpenter reported that he read of the red fox decimating the wild geese population on certain islands. In defense of sportsmen, Assemblyman Carpenter added that there were situations where animals were more predatory than humans. He confirmed the presence of red fox in Elko and encouraged the support of predator management programs.

 

Assemblyman Brown requested an estimate of the cost to protect the sheep and cattle industry. Mr. Beach stated that the figures were based on the number of sheep that did not get killed. Statistical projections from research revealed estimates of what losses would be in the absence of predator control efforts.  The trend in losses over years did not reveal an expected downward slope. If there was a good spring for rodents, this would be followed by an abundance of coyotes.

 

Assemblyman Neighbors commented on the Warm Springs and Rachel areas and the number of mountain lion sightings in recent years. No deer were visible, and this was a concern to the residents. He encouraged predator management for the area.

 

Gerald Lent, representing the Nevada Hunters Association, resumed testimony in support of A.B. 291. He agreed that the fee assessment should be on the application and not on the awarded tags. Mr. Lent urged that any additional funds be devoted to the actual fieldwork and not to adding staff positions. In regard to the neutral position taken by the Wildlife Division, Mr. Lent expressed his disappointment over the apparent hypocrisy.

 

Mr. Lent cited results of a survey conducted by the Nevada Board of Wildlife Commissioners. Opinions from sportsmen and users revealed most hunters were more than willing to pay an additional $5 on their applications. Most survey respondents strongly agreed that predator management efforts needed to be accelerated in Nevada. Mr. Lent added that the Division of Wildlife had never had an effective predator control program.

 

Mr. Lent suggested that Nevada follow the example of Utah where the biologists set up a target number for herd numbers. Areas with lower than expected numbers of game animals and agricultural stock were automatically targeted for resource protection efforts.

 

Chairman de Braga requested clarification on the number of respondents to the sportsmen survey. Mr. Lent stated that the sample was 1,028 Nevada residents out of a population of 22,000 applicants for game licenses. There was a 95 percent confidence level attached to the results.  The survey was conducted in October of 2000 and was considered representative of the entire state.

 

Chairman de Braga requested clarification on the setting of fees by the Wildlife Commission. Larry Johnson, representing Nevada Bighorns Unlimited, introduced Bill Bradley, Wildlife Commissioner. Mr. Bradley replied that it was within the statutory framework established by the legislature and that the legislature had capped their ability on a deer tag. Mr. Bradley felt compelled to correct some of the statements made by Mr. Lent. Specifically, in the area of the application fee, the legislature capped their statutory authority at $10. Until two months ago, it had been $5.  The decision was made to increase it to $10 due to costs. Chairman de Braga asked if the Wildlife Commission had the ability to raise the fee $3. Mr. Bradley replied they did not. 

 

Mr. Bradley, a member of the Nevada Board of Wildlife Commissioners, was one of five commissioners appointed by the Governor. He stated that he was behind the sportsmen survey and had supported the funding request for predator management. He confirmed that the Wildlife Commission had just added the option to game applications for sportsmen to contribute money for predator management efforts. The problem had been that this new option competed with another program, Operation Game Thief. As such, there was new concern that enforcement would suffer.

 

The willingness and desire of the sportsmen in Nevada to have more predator management was an overwhelming finding of the survey. He emphasized, however, that no sportsman favored the total elimination of predators from the Nevada landscape.  Mr. Bradley reflected on the terrible winter of 1992 that was followed by several years of severe drought. An estimated 75 percent of the mule deer population was decimated. Devastating forest fires in recent years had compounded the problem with the wildlife rangelands.

 

Despite the neutral stance on the bill, Mr. Bradley defended the Wildlife Division’s response to predator management.  He assured the committee that the efforts would continue in that direction if the science-based and goal-oriented approach outlined in A.B. 291 was adopted. An additional fee of $3 to $5 per application properly spent was going to increase the game population without eliminating the predators. Mr. Bradley concluded by saying that the bill should be amended to include educational programs. This would counteract misconceptions about predators.

 

Given the support of the sportsmen, Chairman de Braga asked why sportsmen were not voluntarily putting money into predator management. Mr. Bradley replied that, until two months ago, there was no vehicle in place to voluntarily donate funds. Sportsmen now could check a box on the application. He cautioned that budgeting based on such cyclical income would be very difficult. If the bill passed, the check box would remain on the application.

 

In response to Chairman de Braga, the voluntary funds would be deposited into the Wildlife Division account. Disbursement of funds would follow a joint review by the Division of Wildlife, the Wildlife Commission, and Protective Services to identify hot spots. When the fawn to doe ratio dropped below 35 to 100, this red flagged the area.

 

Chairman de Braga commented that every legislative session, the committee was faced with the issue of raising fees but not raising taxes. She endorsed the concept of the bill, however raising fees invited criticism from constituents. Mr. Bradley replied that the Wildlife Commission would take the heat for the fee increases and would deal with the issues. He was confident of the widespread support for predator management. In response, Chairman de Braga stated that she had sent a letter to every county advisory board in District 4, but only heard back indirectly from one. She had specifically solicited input regarding the fee increases proposed for this legislative session.

 

In response to Chairman de Braga, Mr. Bradley stated that the percentage of funds that would be devoted to the educational programs was unknown. He reiterated the prevailing sentiment was to invest in field implementation efforts. He made reference to an in-school program called Operation Wild, and he assured the committee that several Wildlife Commissioners would meet with the organizers of Operation Wild for purposes of reviewing the presentation made to students.

 

Assemblyman Marvel commented that he did not hear opposition from the Wildlife Division. Mr. Bradley concurred that the lack of support should not be misinterpreted and added that Wildlife had a good track history.

 

Assemblyman Collins stated that he attended a meeting of the Clark County Wildlife Board, and he felt that they strongly supported the increase in fees for improvements in the game herds. Mr. Bradley commented that attendance at Wildlife Commission meetings had improved.

 

Larry Johnson, representing Nevada Bighorns Unlimited, resumed testimony in favor of A.B. 291. He stated emphatically that he heard no opposition from any sportsmen group or from the county game boards. An informal survey of sportsmen conducted by his group clearly revealed the need for predator control and a willingness of the hunters to fund the programs. Mr. Johnson echoed the testimony of other witnesses and emphasized the need to adhere to a science- based approach to predator management. The blanket eradication of predators was not endorsed.

 

Mr. Johnson commented on an antelope fawn survival study in Oregon conducted by the U.S. Fish and Wildlife Services. Coyotes were determined to account for 90 percent of the loss of young antelope. Spot removal of coyotes was proposed, however animal rights groups successfully blocked the effort.

 

In summary, Mr. Johnson reiterated his support of the bill and expressed confidence of its future success. Public education must be integrated in all efforts. The $3 fee was appropriately charged to the application as opposed to the awarded tag. He commended Assemblyman Claborn for his foresight.

 

Doug Busselman, Executive Vice President of the Nevada Farm Bureau, resumed testimony in support of A.B. 291 and read from a prepared handout (Exhibit E). In addition to protecting Nevada’s game herds, predator management was described as critically essential from an agricultural perspective. Mr. Busselman emphasized that A.B. 291 would help protect livestock producers from economic loss due to predation. He called attention to lines 16 and 17 of the bill and asked that it be corrected. Chairman de Braga replied that it had been handled in the amendment.

 

Joe Guild, President of the Nevada Cattlemen’s Association, spoke in support of A.B. 291. He highlighted the numbers of animals that fell victim to predators in Nevada. A sheep rancher in Elko County had reported a loss of more than 800 lambs as a result of coyotes and mountain lions. Mr. Guild personally experienced a 7 percent loss of calves to coyote predation.

 

Joe Johnson, representing the Toiyabe Chapter of the Sierra Club, resumed testimony. He emphasized that the Sierra Club supported science-based and goal-oriented management of animals. They were not, however, in favor of management protocols that would generate maximum production of game herds. Maximum diversity of species was preferred as the goal, and the Sierra Club often objected to the means, the process, and the extent of predator control. Mr. Johnson added his concern over the proposal of mass distribution of aviacide-injected eggs that described by Mr. Bradley. This random effort would not be a well-defined and targeted program.

 

Mr. Johnson added that the Sierra Club was not opposed to the collection of fees, however he encouraged the addition of a sunset clause to the program. As such, the Wildlife Division would be subject to review of the functioning of the program.

 

Assemblyman Marvel interjected with a series of questions and comments regarding the negative interference by the Sierra Club. He specifically asked for results of Sierra Club scientific studies that supported their stance. Mr. Johnson attempted to explain that the function of a public interest group, such as the Sierra Club, was to act as a watchdog and to review multiple aspects of issues. He viewed all wildlife as part of the public domain and reiterated his concern that sportsmen who funded predator management would assume proprietary control. Mr. Johnson expressed his fear that broader interests of the general public would not be served. He added that he would advocate funding of these predator management programs from the state’s General Fund. Mr. Johnson stated that, when the Sierra Club had opposed predator control in the past, expert witnesses had been supplied.

 

Mr. Johnson summarized by saying that he did not openly oppose the bill. Rather, he proposed an amendment that would ensure an outcome assessment and peer review of scientific information. In response to Assemblyman Marvel, Mr. Johnson clarified that he was representing the Sierra Club, however a formal vote had not been conducted among the membership.

 

Chairman de Braga requested if Mr. Johnson had a specific recommendation for the wording of an amendment. Mr. Johnson stated that he had not reviewed the proposed amendments, however he would submit a recommendation for a sunset clause and mandatory outcome review. Chairman de Braga encouraged Mr. Johnson to consult with the originator of the bill for purposes of drafting an amendment.

 

Assemblyman Collins requested clarification of the sunset clause and asked if it would apply to the fee increase or to the entire program. Mr. Johnson replied that the sunset clause would apply to the fee increase.

 

Robert Beach, Division of Wildlife Services, requested recognition from the committee. He made reference to Mr. Bradley’s testimony in which he talked of the mass distribution of aviacide-injected eggs. Mr. Beach clarified that, although sportsmen had volunteered to perform this service, they had not been allowed to do so. The poison was restricted by law, and only an official employee of the Wildlife Division was authorized to handle the work.

 

Merritt Yochum, representing the Independent American Party, distributed a handout (Exhibit F) and commenced testimony in opposition of A.B. 291. Mr. Yochum read a statement prepared by Dan Hansen. The imposition of unnecessary fees and the creation of more government bureaucracy were highlighted by Mr. Yochum. He stated that common sense and self-government should replace the planned research and government studies.

 

Mr. Yochum stated that the simple killing of coyotes in the Ruby Valley had resulted in an immediate increase in the deer herds and sage hen populations. No studies, no fees, and no government interference were required to achieve the desired results. There was a natural balance of the predator and the game herds. He added that A.B. 291 would be subject to political manipulation by anti-hunters. Mr. Yochum added that it would invite more invasive oversight by the Bureau of Land Management (BLM), the U.S. Forest Service, and other federal agencies. The biggest enemy of the sportsmen’s interests was, according to Mr. Yochum, the BLM and the U.S. Forest Service. He concluded his testimony by stating that Nevada had always been treated as a territory instead of a state.

 

Chairman de Braga closed the hearing on A.B. 291 and opened the work session on A.B. 200.

 

Assembly Bill 200:  Expands grounds for imposition of civil penalties and administrative fines to enforce certain provisions governing public water systems. (BDR 40-397)

 

Linda Eissmann, Committee Policy Analyst, referred the committee to the work session document (Exhibit I). When A.B. 200 was first heard on March 7, there were concerns related to the removal of the word “willfully” from NRS 445A.950, the section that set forth fines and penalties. The Health Division had testified that the purpose of the bill was to ensure that it retained its status as the primacy agency to administer the Federal Drinking Water Act in Nevada.

 

Ms. Eissmann called the committee’s attention to supplemental information supplied by the Health Division and an amendment (Exhibit H). Comparison of state and federal laws was included in the work session document (Exhibit I). Ms. Eissmann summarized the amendment and stated that the word “willfully” was still removed. She added that the words “shall pay” were deleted and had been replaced with “were liable for” a civil penalty. The words “to be recovered by the Attorney General in the name of the Health Division” were added.

 

Chairman de Braga requested that Yvonne Silva, Administrator of the Nevada Health Division, respond to questions from the committee.  Chairman de Braga asked for clarification if the statute would impose a civil penalty for any violation. Equal protection required that the law be clear and that penalties not be arbitrary.

 

Ms. Silva deferred to Galen Denio, Manager of Public Health Engineering. Mr. Denio explained that the civil penalty would not be used except in egregious cases that involved the Attorney General and the court system. The administrative penalty section would be handled by the State Board of Health. No distinction was made between minor violations and major violations.

 

Mr. Denio reported that there had been approximately 1,000 violations of monitoring and sampling regulations, with 89 violations of the maximum contaminant level. Because the agency’s goal was compliance, no penalties were levied. The penalty phase would only be implemented in extreme cases of noncompliance compounded by noncooperation.

 

Assemblyman Brown requested clarification on the interpretation of the phrase “is liable” and whether it would be discretionary or mandated. Ms. Silva judged it to be discretionary and added that intent of primacy status was to apply the law only when necessary and to use discretion.

 

Assemblyman Brown asked if the committee’s legal counsel had issued an opinion on this portion. After reading the EPA documentation, it was his impression that it was necessary for the state to have the authority to assess, but not that it be mandated. Assemblyman Brown added that he saw some ambiguity in the “is liable” wording.

 

Ms. Silva confirmed that her office had contacted the Attorney General’s Office, and it was their legal opinion that the wording would grant the Health Division the discretion needed.

 

Chairman de Braga reiterated that it had been a concern of the committee that there would be some protection for water suppliers in the event of an unforeseen catastrophic event. Assemblyman Carpenter echoed the concerned and expressed his general dissatisfaction with the expansion of regulations and the issuance of mandatory fines. He made reference to a letter from the EPA that had suggested ways to soften the fines, and he had hoped Nevada would follow that example. Ms. Silva explained that the state maintained a lot of discretion as it related to the amount of the fines.

 

Assemblyman Brown returned to the language “is liable” and stated that he had a preference for “may be required to pay” wording. Mr. Denio replied that the language had been discussed with the EPA and the Attorney General. It was judged that the words “is liable for” were the most agreeable to all parties. These words would provide the flexibility the Nevada Health Division needs to enforce the regulations.

 

Assemblyman Brown asked if the Attorney General felt the words “may be subject to” were sufficient. Mr. Denio replied that neither the Attorney General nor EPA was comfortable with that phrase.

 

Chairman de Braga asked if this would be the minimum that the federal government would accept. Mr. Denio replied in the affirmative.

 

Assemblyman Collins commented that the words “is liable” seemed to be adequate in the civil sense because civil liability had to be determined before a fine could be levied. Assemblyman Marvel interjected that the real concern in Nevada is that the state maintain its primacy status.

 

In summary, Ms. Silva stated that the language of the bill could be debated endlessly, however she assured the committee that the words were agreeable and offered the state the flexibility it needed to enforce water regulations. Assemblyman Marvel reiterated the importance of the state’s primacy and added that there was always a concern about the legal “what-if” down the road.

 

Assemblyman Carpenter asked if it would be possible to ask for LCB legal review. He expressed concern for the multitude of small water users who were not fully informed about regulations and standards. There would need to be a way for a small water user to defend himself and to be guaranteed the chance to be heard.

 

Chairman de Braga agreed with Assemblyman Carpenter and stated that the discussion would resume in another work session after a legal review by the Legislative Counsel Bureau.

 

The meeting was adjourned at 3:35 p.m.

 

RESPECTFULLY SUBMITTED:

 

 

                               

June Rigsby

Committee Secretary

 

 

APPROVED BY:

 

 

                                                                                         

Assemblywoman Marcia de Braga, Chairman

 

 

DATE: