Senate Bill No. 76–Committee on Natural Resources

 

(On Behalf of Legislative Committee on
Public Lands (NRS 218.5363))

 

February 11, 2003

____________

 

Referred to Committee on Natural Resources

 

SUMMARY—Revises provisions governing acquisition of water rights for purposes of watering livestock. (BDR 48‑670)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to water; revising the restrictions on the issuance of permits to appropriate water for the purpose of watering livestock and certificates of appropriation based upon such permits; 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

1-2  thereto a new section to read as follows:

1-3  1.  The State Engineer shall not issue a permit to appropriate

1-4  water for the purpose of watering livestock unless:

1-5  (a) The applicant for the permit, or if the application for the

1-6  permit is made by two or more applicants at least one of the

1-7  applicants for the permit, is legally entitled to place the livestock

1-8  on the lands for which the permit is sought, and:

1-9       (1) Owns, leases or otherwise possesses a legal or

1-10  proprietary interest in the livestock on or to be placed on the lands

1-11  for which the permit is sought; or

1-12          (2) Has received from a person described in subparagraph

1-13  (1), authorization to have physical custody of the livestock on or to

2-1  be placed on the lands for which the permit is sought, and

2-2  authorization to care for, control and maintain such livestock;

2-3  (b) If the application for the permit is made by two or more

2-4  applicants, each applicant for the permit, to the extent authorized

2-5  by law, agrees to contribute to:

2-6       (1) The means for putting to beneficial use the water for

2-7  which the permit is sought; and

2-8       (2) The development, using the procedures administered by

2-9  the State Engineer, of the water rights for which the permit is

2-10  sought;

2-11      (c) The forage serving the beneficial use of the water to be

2-12  appropriated is not encumbered by an adjudicated grazing

2-13  preference recognized pursuant to federal law for the benefit of a

2-14  person other than the applicant for the permit, or if the application

2-15  for the permit is made by two or more applicants, for the benefit of

2-16  a person other than at least one of the applicants for the permit;

2-17  and

2-18      (d) The lack of encumbrance required by paragraph (c) is

2-19  demonstrated by reasonable means, including, without limitation,

2-20  evidence of a valid grazing permit, other than a temporary grazing

2-21  permit, that is issued by the appropriate governmental entity to the

2-22  applicant, or if the application for the permit is made by two or

2-23  more applicants to at least one of the applicants for the permit.

2-24      2.  The State Engineer shall not issue a certificate of

2-25  appropriation based upon a permit to appropriate water for the

2-26  purpose of watering livestock unless:

2-27      (a) The holder of the permit, or if the permit is held by two or

2-28  more persons at least one of those persons, makes satisfactory

2-29  proof that the water has been beneficially used, is legally entitled

2-30  to place on the lands the livestock which have been watered

2-31  pursuant to the permit, and:

2-32          (1) Owns, leases or otherwise possesses a legal or

2-33  proprietary interest in the livestock which have been watered

2-34  pursuant to the permit; or

2-35          (2) Has received from a person described in subparagraph

2-36  (1), authorization to have physical custody of the livestock which

2-37  have been watered pursuant to the permit, and authorization to

2-38  care for, control and maintain such livestock;

2-39      (b) If the permit is held by two or more persons, each person

2-40  who holds the permit, to the extent authorized by law, has

2-41  contributed to:

2-42          (1) The means for putting to beneficial use the water for

2-43  which the certificate is sought; and

3-1       (2) The development, using the procedures administered by

3-2  the State Engineer, of the water rights for which the certificate is

3-3  sought;

3-4  (c) The forage serving the beneficial use of the water that has

3-5  been beneficially used is not encumbered by an adjudicated

3-6  grazing preference recognized pursuant to federal law for the

3-7  benefit of a person other than the holder of the permit, or if the

3-8  permit is held by two or more persons, for the benefit of a person

3-9  other than at least one of the holders of the permit; and

3-10      (d) The lack of encumbrance required by paragraph (c) is

3-11  demonstrated by reasonable means, including, without limitation,

3-12  evidence of a valid grazing permit, other than a temporary grazing

3-13  permit, that is issued by the appropriate governmental entity to the

3-14  holder of the permit, or if the permit is held by two or more

3-15  persons to at least one of the holders of the permit.

3-16      3.  This section must not be construed to impair the vested

3-17  right of any person to the use of water for the purpose of watering

3-18  livestock or to prevent any transfer of ownership of a water right

3-19  for the purpose of watering livestock.

3-20      4.  As used in this section, “grazing preference” means a

3-21  priority position in the issuance of a permit to graze livestock on

3-22  the public range.

3-23      Sec. 2.  NRS 533.040 is hereby amended to read as follows:

3-24      533.040  1.  Except as otherwise provided in this section, any

3-25  water used in this state for beneficial purposes shall be deemed to

3-26  remain appurtenant to the place of use.

3-27      2.  If at any time it is impracticable to use water beneficially or

3-28  economically at the place to which it is appurtenant, the right may

3-29  be severed from the place of use and be simultaneously transferred

3-30  and become appurtenant to another place of use, in the manner

3-31  provided in this chapter, without losing priority of right.

3-32      3.  The provisions of this section do not apply to a ditch or

3-33  canal company that appropriates water for diversion and

3-34  transmission to the lands of private persons for an annual charge.

3-35      4.  For the purposes of this section, a surface water right

3-36  acquired by a water user in a federal reclamation project may be

3-37  considered appurtenant to an entire farm, instead of specifically

3-38  identifiable land within that farm, upon the granting of a permit for

3-39  the change of place of use by the State Engineer which designates

3-40  the place of use as the entire farm. The quantity of water available

3-41  for use on that farm must not exceed the total amount determined by

3-42  applicable decrees as designated in the permit granted by the State

3-43  Engineer.

3-44      5.  For the purposes of this section, a water right acquired for

3-45  watering livestock by a person who owns, leases or otherwise

4-1  possesses a legal or proprietary interest in the livestock being

4-2  watered is appurtenant to:

4-3  (a) The land on which the livestock is watered if the land is

4-4  owned by the person who possesses a legal or proprietary interest

4-5  in the livestock; or

4-6  (b) The land located contiguous to the land on which the

4-7  livestock is watered if that contiguous land is owned by the person

4-8  who possesses the legal or proprietary interest in the livestock

4-9  being watered.

4-10      6.  The provisions of subsection 5 must not be construed:

4-11      (a) To impair a vested right or other existing water right

4-12  established before the effective date of this act of a person to the

4-13  use of water for the purpose of watering livestock; or

4-14      (b) To prevent any transfer of ownership of a water right for

4-15  the purpose of watering livestock.

4-16      7.  As used in this section, “farm” means a tract of land under

4-17  the same ownership that is primarily used for agricultural purposes.

4-18      Sec. 3.  NRS 533.370 is hereby amended to read as follows:

4-19      533.370  1.  Except as otherwise provided in this section and

4-20  NRS 533.345, 533.371, 533.372 and [533.503,] section 1 of this act,

4-21  the State Engineer shall approve an application submitted in proper

4-22  form which contemplates the application of water to beneficial use

4-23  if:

4-24      (a) The application is accompanied by the prescribed fees;

4-25      (b) The proposed use or change, if within an irrigation district,

4-26  does not adversely affect the cost of water for other holders of water

4-27  rights in the district or lessen the efficiency of the district in its

4-28  delivery or use of water; and

4-29      (c) The applicant provides proof satisfactory to the State

4-30  Engineer of:

4-31          (1) His intention in good faith to construct any work

4-32  necessary to apply the water to the intended beneficial use with

4-33  reasonable diligence; and

4-34          (2) His financial ability and reasonable expectation actually

4-35  to construct the work and apply the water to the intended beneficial

4-36  use with reasonable diligence.

4-37      2.  Except as otherwise provided in subsection 6, the State

4-38  Engineer shall approve or reject each application within 1 year after

4-39  the final date for filing a protest. However:

4-40      (a) Action may be postponed by the State Engineer upon written

4-41  authorization to do so by the applicant or, if an application is

4-42  protested, by the protestant and the applicant; and

4-43      (b) In areas where studies of water supplies have been

4-44  determined to be necessary by the State Engineer pursuant to NRS

4-45  533.368 or where court actions are pending, the State Engineer may

5-1  withhold action until it is determined there is unappropriated water

5-2  or the court action becomes final.

5-3  3.  Except as otherwise provided in subsection 6, where there is

5-4  no unappropriated water in the proposed source of supply, or where

5-5  its proposed use or change conflicts with existing rights or with

5-6  protectible interests in existing domestic wells as set forth in NRS

5-7  533.024, or threatens to prove detrimental to the public interest, the

5-8  State Engineer shall reject the application and refuse to issue the

5-9  requested permit. If a previous application for a similar use of water

5-10  within the same basin has been rejected on those grounds, the new

5-11  application may be denied without publication.

5-12      4.  In determining whether an application for an interbasin

5-13  transfer of ground water must be rejected pursuant to this section,

5-14  the State Engineer shall consider:

5-15      (a) Whether the applicant has justified the need to import the

5-16  water from another basin;

5-17      (b) If the State Engineer determines that a plan for conservation

5-18  of water is advisable for the basin into which the water is to be

5-19  imported, whether the applicant has demonstrated that such a plan

5-20  has been adopted and is being effectively carried out;

5-21      (c) Whether the proposed action is environmentally sound as it

5-22  relates to the basin from which the water is exported;

5-23      (d) Whether the proposed action is an appropriate long-term use

5-24  which will not unduly limit the future growth and development in

5-25  the basin from which the water is exported; and

5-26      (e) Any other factor the State Engineer determines to be

5-27  relevant.

5-28      5.  If a hearing is held regarding an application, the decision of

5-29  the State Engineer must be in writing and include findings of fact,

5-30  conclusions of law and a statement of the underlying facts

5-31  supporting the findings of fact. The written decision may take the

5-32  form of a transcription of an oral ruling. The rejection or approval of

5-33  an application must be endorsed on a copy of the original

5-34  application, and a record must be made of the endorsement in the

5-35  records of the State Engineer. The copy of the application so

5-36  endorsed must be returned to the applicant. Except as otherwise

5-37  provided in subsection 7, if the application is approved, the

5-38  applicant may, on receipt thereof, proceed with the construction of

5-39  the necessary works and take all steps required to apply the water to

5-40  beneficial use and to perfect the proposed appropriation. If the

5-41  application is rejected, the applicant may take no steps toward

5-42  the prosecution of the proposed work or the diversion and use of the

5-43  public water while the rejection continues in force.

5-44      6.  The provisions of subsections 1 to 4, inclusive, do not apply

5-45  to an application for an environmental permit.

6-1  7.  The provisions of subsection 5 do not authorize the recipient

6-2  of an approved application to use any state land administered by the

6-3  Division of State Lands of the State Department of Conservation

6-4  and Natural Resources without the appropriate authorization for that

6-5  use from the State Land Registrar.

6-6  8.  As used in this section, “interbasin transfer of ground water”

6-7  means a transfer of ground water for which the proposed point of

6-8  diversion is in a different basin than the proposed place of beneficial

6-9  use.

6-10      Sec. 4.  NRS 533.425 is hereby amended to read as follows:

6-11      533.425  1.  Except as otherwise provided in [NRS 533.503,]

6-12  section 1 of this act, as soon as practicable after satisfactory proof

6-13  has been made to the State Engineer that any application to

6-14  appropriate water or any application for permission to change the

6-15  place of diversion, manner or place of use of water already

6-16  appropriated has been perfected in accordance with the provisions of

6-17  this chapter, the State Engineer shall issue to the holder or holders of

6-18  the permit a certificate setting forth:

6-19      (a) The name and post office address of each holder of the

6-20  permit.

6-21      (b) The date, source, purpose and amount of appropriation.

6-22      (c) If for irrigation, a description of the irrigated lands by legal

6-23  subdivisions, when possible, to which the water is appurtenant.

6-24      (d) The number of the permit under which the certificate is

6-25  issued.

6-26      2.  If the water is appropriated from an underground source, the

6-27  State Engineer shall issue with the certificate a notice of the

6-28  provisions governing the forfeiture and abandonment of such water

6-29  rights. The notice must set forth the provisions of NRS 534.090.

6-30      Sec. 5.  NRS 533.485 is hereby amended to read as follows:

6-31      533.485  As used in NRS 533.485 to 533.510, inclusive [:] ,

6-32  and section 1 of this act:

6-33      1.  “Public range” means all lands belonging to the United

6-34  States and to the State of Nevada on which livestock are permitted

6-35  to graze, including lands set apart as national forests and lands

6-36  reserved for other purposes.

6-37      2.  “Range livestock” shall mean livestock which during the

6-38  general period or season when they are being or are proposed to be

6-39  watered at the place involved shall be subsisting chiefly or entirely

6-40  by grazing on the public range.

6-41      Sec. 6.  NRS 533.503 is hereby amended to read as follows:

6-42      533.503  1.  The State Engineer shall not issue[:

6-43      (a) A] a permit to appropriate water for the purpose of watering

6-44  livestock [on public lands unless the] unless:

7-1  (a) The applicant for the permit is legally entitled to place the

7-2  livestock on the [public] lands for which the permit is sought[.

7-3  (b) A] , and:

7-4       (1) Owns, leases or otherwise possesses a legal or

7-5  proprietary interest in the livestock on or to be placed on the lands

7-6  for which the permit is sought; or

7-7       (2) Has received from a person described in subparagraph

7-8  (1), authorization to have physical custody of the livestock on or to

7-9  be placed on the lands for which the permit is sought, and

7-10  authorization to care for, control and maintain such livestock;

7-11      (b) The forage serving the beneficial use of the water to be

7-12  appropriated is not encumbered by an adjudicated grazing

7-13  preference recognized pursuant to federal law for the benefit of a

7-14  person other than the applicant for the permit; and

7-15      (c) The lack of encumbrance required by paragraph (b) is

7-16  demonstrated by reasonable means, including, without limitation,

7-17  evidence of a valid grazing permit, other than a temporary grazing

7-18  permit, that is issued by the appropriate governmental entity to the

7-19  applicant for the permit.

7-20      2.  The State Engineer shall not issue a certificate of

7-21  appropriation based upon a permit to appropriate water for the

7-22  purpose of watering livestock [on public lands unless the person

7-23  who] unless:

7-24      (a) The holder of the permit makes satisfactory proof that the

7-25  water has been beneficially used , is legally entitled to place on

7-26  the [land] lands the livestock which have been watered pursuant to

7-27  the permit[.

7-28      2.] , and:

7-29          (1) Owns, leases or otherwise possesses a legal or

7-30  proprietary interest in the livestock which have been watered

7-31  pursuant to the permit; or

7-32          (2) Has received from a person described in subparagraph

7-33  (1), authorization to have physical custody of the livestock which

7-34  have been watered pursuant to the permit, and authorization to

7-35  care for, control and maintain such livestock;

7-36      (b) The forage serving the beneficial use of the water that has

7-37  been beneficially used is not encumbered by an adjudicated

7-38  grazing preference recognized pursuant to federal law for the

7-39  benefit of a person other than the holder of the permit; and

7-40      (c) The lack of encumbrance required by paragraph (b) is

7-41  demonstrated by reasonable means, including, without limitation,

7-42  evidence of a valid grazing permit, other than a temporary grazing

7-43  permit, that is issued by the appropriate governmental entity to the

7-44  holder of the permit.

8-1  3. This section must not be construed to impair the vested right

8-2  of any person to the use of water for the purpose of watering

8-3  livestock or to prevent any transfer of ownership of a water right for

8-4  the purpose of watering livestock.

8-5  4.  As used in this section, “grazing preference” means a

8-6  priority position in the issuance of a permit to graze livestock on

8-7  the public range.

8-8  Sec. 7.  The provisions of sections 2 and 6 of this act do not

8-9  apply to a permit to appropriate water for the purposes of watering

8-10  livestock or a certificate of appropriation based upon such a permit

8-11  if the permit was issued by the State Engineer before the effective

8-12  date of this act, regardless of whether such a permit or certificate is

8-13  transferred after that date.

8-14      Sec. 8.  The provisions of sections 1, 3, 4 and 5 of this act do

8-15  not apply to a permit to appropriate water for the purposes of

8-16  watering livestock or a certificate of appropriation based upon such

8-17  a permit if the permit is issued by the State Engineer before the date

8-18  on which sections 1, 3, 4 and 5 become effective, regardless of

8-19  whether such a permit or certificate is transferred after that date.

8-20      Sec. 9.  1.  This section and sections 2, 6 and 7 of this act

8-21  become effective upon passage and approval.

8-22      2.  If a court of competent jurisdiction invalidates all or part of

8-23  section 6 of this act and an event described in paragraph (a), (b) or

8-24  (c) of this subsection occurs on or before July 1, 2013, sections 2

8-25  and 6 of this act expire by limitation on:

8-26      (a) The date on which the court of last resort upholds the final

8-27  decision of the court of competent jurisdiction invalidating all or

8-28  part of section 6 of this act;

8-29      (b) The date on which the court of last resort declines to review

8-30  the final decision of the court of competent jurisdiction invalidating

8-31  all or part of section 6 of this act; or

8-32      (c) The date of the day following the day on which the time for

8-33  filing an appeal of the decision of the court of competent jurisdiction

8-34  invalidating all or part of section 6 of this act expires, if no appeal is

8-35  filed within that time,

8-36  whichever occurs first. If none of the events described in paragraphs

8-37  (a), (b) and (c) of this subsection occur on or before July 1, 2013,

8-38  sections 2 and 6 of this act do not expire by limitation pursuant to

8-39  this act.

8-40      3.  Sections 1, 3, 4, 5 and 8 of this act become effective on the

8-41  date on which sections 2 and 6 of this act expire by limitation, if and

8-42  only if, sections 2 and 6 of this act expire by limitation on or before

8-43  July 1, 2013.

 

9-1  4.  As used in this section, “court of last resort” means the court

9-2  having the authority to consider the final appeal of the case.

 

9-3  H