MINUTES OF THE

SENATE Committee on Natural Resources

 

Seventy-First Session

February 26, 2001

 

The Senate Committee on Natural Resourceswas called to order by Chairman Dean A. Rhoads, at 1:30 p.m., on Monday, February 26, 2001, in Room 2144 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Attendance Roster.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

 

COMMITTEE MEMBERS PRESENT:

 

Senator Dean A. Rhoads, Chairman

Senator Lawrence E. Jacobsen, Vice Chairman

Senator Mike McGinness

Senator Mark A. James

Senator Raymond C. Shaffer

Senator Bob Coffin

Senator Maggie Carlton

 

STAFF MEMBERS PRESENT:

Fred W. Welden, Committee Policy Analyst

Billie Brinkman, Secretary

Heather Miller, Committee Secretary

 

OTHERS PRESENT:

Linda J. Eissmann, Senior Research Analyst, Research Division, Legislative Counsel Bureau

R. Michael Turnipseed, P.E., Director, Department of Conservation and Natural Resources

Hugh Ricci, P.E., State Engineer, Division of Water Resources, State Department of Conservation and Natural Resources

Robert Crowell, Lobbyist

Robert Tretiak, Ph.D., Lobbyist, Vice President, Nevada Well Owners Association

Julie A. Wilcox, Lobbyist, Director of Public Services, Las Vegas Valley Water District, and Southern Nevada Water Authority

Michael D. Goff, R.G., Hydrologist, Department of Resources, Southern Nevada Water Authority

Steve K. Walker, Lobbyist, Washoe County

 

 

 

Chairman Rhoads opened the committee meeting with the introduction of Senate Bill (S.B.) 159 and S.B. 161, concerning water wells. 

 

SENATE BILL 159:  Makes various changes concerning protectible interests in domestic water wells. (BDR 48-309)

 

 SENATE BILL 161:  Requires applicant for permit to operate certain water systems to provide documentation that applicant possesses sufficient water rights to operate system. (BDR 40-308)

 

Linda J. Eissmann, Senior Research Analyst, Research Division, Legislative Counsel Bureau (LCB), gave testimony on both S.B. 159 and S.B. 161 from a prepared statement (Exhibit C).  Ms. Eissmann referred to LCB Bulletin 01-18, “Domestic and Municipal Water Wells” (Exhibit D. Original is on file at the Research Library.), in her statement.  This bulletin provided a description of the purpose of each bill.  Senate Bill 159 is a result of a measure enacted in a previous session of the Nevada Legislature, S.B. 19 of the Sixty-seventh Session, she said. 

 

SENATE BILL 19 OF THE SIXTY-SEVENTH SESSION:  Make various changes to provisions governing water.  (BDR 48-528)

 

Ms. Eissmann stressed the issue considered by the technical advisory committee was “protectible interests,” and whether this provision should be extended to all domestic well owners, not only those in counties with a population less than 400,000.  Well owners in Clark County are currently excluded from the “protectible interest” provision of Nevada Revised Statutes (NRS) 533.024, she explained.  Ms. Eissmann stated that NRS 533.024 stipulates “protectible interests” means protection of the domestic well’s water supply from unreasonable adverse impacts.

 

Ms. Eissmann then testified on S.B. 161 and again read from her prepared statement (Exhibit C).  She said S.B. 161 requires the applicant for expansion of a public water system to submit documentation from the state engineer to the Health Division, confirming the applicant holds sufficient water rights to operate the expanded water system.

 

R. Michael Turnipseed, P.E., Director, State Department of Conservation and Natural Resources, and Hugh Ricci, P.E., State Engineer, State Engineer’s Office, Division of Water Resources, State Department of Conservation and Natural Resources, spoke in support of S.B. 159. 

 

Mr. Turnipseed explained how S.B. 19 of the Sixty-seventh Session was passed in 1993 during a 7-year drought, when the Truckee River irrigation canals were shut off for one summer month of both 1992 and 1994.  Domestic wells dried up, and residents blamed Sierra Pacific Power Company, particularly in Southwest Truckee Meadows where there are many 1- to 5-acre mini ranches.  An extensive monitoring system was in place (normal in almost all municipal well fields) and it was discovered that these ranchers were attempting to keep their ranches green by pumping their domestic wells.  This strained the water supply and explained the drained wells.  Senate Bill 19 of the Sixty-seventh Session provided “protectible interests” to domestic wells.  Mr. Turnipseed stated a municipal well’s cone of depression could impact domestic wells at that location.  The department of conservation requested that Carson City either decrease the amount of water they asked for or hook up private citizens with private wells.  Carson City decided to do the latter.  Mr. Turnipseed argued that the 2500-foot notification requirements in S.B. 19 of the Sixty-seventh Session had no scientific basis and should be removed.  Geologic factors make the 2500-foot zone of influence unreliable, since wells drilled in valleys and hills would have different impacts on the water table.  A strong aquifer may not draw down at all, while a poor aquifer may draw down the cone of depression much farther than 2500 feet.  Mr. Turnipseed said that a change in this language eliminating the notification provision is suggested.  It was the position of the state engineer’s office that if there was an unreasonable impact on any domestic wells, there were three options:  reduce the pumping to a point where it is not impacting domestic wells, pay to hook those wells onto the municipal system, or pay to deepen those domestic wells.  Problems have arisen in Clark County as the water level in the Las Vegas basin continues to decline.  Clark County has been engaged in a recharge project since 1989.  Water brought in from the Colorado River was used to recharge municipal wells while nearby domestic wells continued to dry. 

 

Senator James asked Mr. Turnipseed if this bill relates to domestic wells that are non-permitted under the domestic well statute.  Senator James asked if it also applies to wells created under NRS 534.120.  Assembly Bill 408 of the Seventieth Session was mentioned in conjunction with NRS 534.120.

 

ASSEMBLY BILL 408 OF THE SEVENTIETH SESSION:  Revises provisions relating to appropriation of water and revises method for calculating certain charge for water. (BDR 48-1541)  

 

Mr. Turnipseed responded that domestic wells defined in statute, and serving a single family or domestic home, have been exempt from permitting since the beginning of the groundwater law in 1939.  One of the problems in protecting domestic wells is that some of their whereabouts were and still are unknown.  Well drillers now must file a log with the State Department of Conservation and Natural Resources.  The approval criteria in NRS 533.70 have three parts:  Is there unappropriated water in the source, is it going to interfere with existing rights, and is it going to prove detrimental to the public interest.  Even though the existing rights in part two are revocable, they are just as valid as far as “protectible interest” is concerned.  Senator James and Mr. Turnipseed discussed the specifics of NRS 533.024 and NRS 534.120.

 

Senator Carlton asked Mr. Turnipseed if the “protectible interests” only occur after there has been an improvement on the property and a well has been drilled, and if citizens cannot claim “protectible interests” without anything on the property.  Mr. Turnipseed answered, “Yes.”

 

Mr. Ricci added one of the problems they face is the drilling of a well prior to a house being built.  “Protectible interests” become difficult because the bill states “existing domestic wells.”  He said it is difficult to determine if one of these wells meets the criteria simply because it was drilled years in advance of building a house. 

 

Senator James argued the main “protectible interest” is the 2500-foot notification requirements, which is removed from S.B. 159.  He said this bill is being turned over to the judiciary to decide what the “protectible interest” is, or the courts will decide it is a policy statement that has no “protectible interests.”  Mr. Turnipseed replied that the “protectible interest” is not only a policy under NRS 533.024, but comes in under the approval criteria.  Senator James countered that the state engineer must be empowered to adopt regulations to implement this policy statement into a statute.  The criteria need to be developed through the state engineer through rulemaking.  He said the courts might not recognize “protectible interests” in S.B. 159, if it is left as is.  Mr. Ricci pointed out domestic/municipal well interactions have been carried out before without rulemaking on what protectible interest includes. 

 

Senator James also said there are two kinds of protections:  procedural protections, like notification of a municipal well drilled in the area; and substantive rights, which states the state engineer must limit or prohibit pumping if it shows unreasonable, adverse effects on wells located within 2500 feet of the well, unless the domestic well owners have agreed to alternate measures that mitigate those adverse effects.  Senator James said S.B. 159 eliminates these rights, nullifying the purpose of the original bill.  Mr. Ricci reminded Senator James there was another provision in the statute NRS 534.110, which is an amended section of S.B. 159.  Should a domestic well be affected, the owner could appeal to the Division of Water Resources, or to any court, whether there were “protectible interests” or not, he said.

 

Chairman Rhoads asked Mr. Ricci what the bill would do that is not being done now.  Mr. Ricci answered the Division of Water Resources would respond to a domestic well owner’s complaint, then analyze the drawdown impact away from the well.  Then it would be decided if the drawdown was reasonable or not.  Mr. Turnipseed also answered the 2500-foot notification requirement has either become a burden on municipal providers of water, or they have found a way around it.  Municipal providers sometimes acquire existing water rights then move it into an existing well. 

 

Mr. Ricci reiterated the difference between reasonable and unreasonable impact to a domestic well.  That determination can best be made on an individual basis.  Mr. Ricci mentioned there had never been an appeal filed against the Division of Water Resources due to permitting another type of well within the proximity of a domestic well, except for one occasion in Smith Valley, which occurred under different circumstances.

 

Senator Carlton asked Mr. Turnipseed if they judged “protectible interests” on the amount of water recharged to a well then removed, or the cone of depression, or the static level where they started.  Mr. Turnipseed responded the law is problematic in the Las Vegas basin because there are domestic wells on the fringes under declining conditions, and also revocable permits in the recharge zone, where the water level has been increasing.  The judgment may vary with each case.  Senator Carlton asked Mr. Turnipseed if drillers, new to the area, understand when they drill a well the water is not at its natural level.  Mr. Turnipseed replied he doubted they would know.  Mr. Ricci added the Division of Water Resources combined efforts with the Real Estate Division to amend the seller’s disclosure form.  Any problems with the well are to be reported to the Division of Water Resources when property is sold.

 

Vice Chairman Jacobsen opened the hearing on S.B. 161. 

 

Mr. Ricci and Mr. Turnipseed stated support of S.B. 161, as is.

 

As there were no more additional comments or questions on S.B. 161, Chairman Jacobsen returned to S.B. 159.

 

Robert Crowell, Lobbyist, speaking for Nevada Well Owners Association (NWOA), testified in favor of S.B. 159, along with Robert Tretiak, Ph.D., Lobbyist, Vice President, Nevada Well Owners Association.  Mr. Tretiak testified that Clark County, the area to which this bill chiefly refers, includes several aquifers.  Mr. Tretiak stated the NWOA asked the legislative subcommittee to remove the 400,000 population cap section, which does not afford equal protection under the law to residents of Clark County.  The NWOA wants the same well rights the rest of the state is given.  He referred to a letter included in LCB Bulletin 01-18 from Congressman Jim Gibbons (Page 83 of Exhibit D).

 

Senator James, Mr. Tretiak and Mr. Crowell discussed the language in S.B. 159.  Mr. Crowell reflected that the current language is agreeable to the NWOA.

 

Julie A. Wilcox, Lobbyist, Director of Public Services, Las Vegas Valley Water District, and Southern Nevada Water Authority (SNWA); and Michael Goff, R.G., Hydrologist, Resources Department, Southern Nevada Water Authority, came forward to comment on S.B. 159.  Ms. Wilcox explained the SNWA understood the necessity of domestic wells, but the language in the bill left some confusion.  She wanted it clarified the bill will not affect the prior appropriation doctrine.  She agreed with some of Senator James’ concerns, and also said the state engineer needs to have the ability to resolve problems as they arise.  Mr. Goff entered into discussion with Senator James, Senator Shaffer and Ms. Wilcox on the bill’s ramifications.  Mr. Goff and Ms. Wilcox had no comment on S.B. 161. 

 

Steve K. Walker, Lobbyist, Washoe County, testified for Washoe County on S.B. 159.  Washoe County, through the S.B. 19 of the Sixty-seventh Session, has established procedures when wells within 2500-foot radius of a municipal well are impacted.  He explained Washoe County has been using the 2500-foot notification rule, even though it is an arbitrary measurement.  He suggested the use of some other language in S.B. 159, rather than a circle around a well which can extend into a mountain or over a wetland, and so forth.  A researched, scientific analysis on whether there is unreasonable drawdown in the area given by the well applicant would make more sense.  Mr. Walker stated the 2500-foot rule was not working in Washoe County.  Chairman Rhoads asked Mr. Walker to write new language for the bill and present it to Fred W. Welden, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, Mr. Walker affirmed he would. 

 

 

 

As there was no further business, Chairman Rhoads adjourned the meeting at 3:08 p.m.

 

 

 

 

RESPECTFULLY SUBMITTED:

 

 

_____________________________

Heather Miller,

Committee Secretary

 

 

 

APPROVED BY:

 

 

_________________________

Senator Dean A. Rhoads, Chairman

 

 

DATE:___________________