AB 298 — Revises provisions relating to water. (BDR 48-735)

If a monitoring, management and mitigation plan requires the applicant to furnish mitigation water, the applicant must demonstrate by substantial evidence that the applicant has the ability to furnish the mitigation water of sufficient quality, quantity and reliability to eliminate the conflict.

- *AB298_R1* – 4 – (b) Improving the works of diversion and distribution to the holder of an existing water right.

(c) Providing a new well to the holder of an existing right or the owner of an existing domestic well.

(d) Reducing or relocating the quantity of water diverted by the applicant or a holder of a water right with a later priority.

(e) Any other measure or action that may be necessary to eliminate the conflict.

5.

The State Engineer shall deny a monitoring, management and mitigation plan if he or she determines that the plan does not eliminate the conflicts.

The State Engineer must review a monitoring, management and mitigation plan and determine whether there is substantial evidence that implementation of the plan will eliminate the conflicts with existing rights and protectable interests in domestic wells.

2.

(1) The holdersapplicant; of existing rights and owners of domestic wells with whom the application conflicts;

(2) AllThe holders of existing rights whoseand pointowners of diversionexisting isdomestic locatedwells withinwith 2,500whom feet of the pointapplication ofmay diversionconflict; of the applicant;

and (3) All persons who filed a protest against the granting of the application pursuant to NRS 533.365;533.365.

and(c) (4)Allow Anyfor a period during which any person whodescribed hasin requestedparagraph that(b) may submit any comment, analysis or other information in response to the Stateapplication Engineerand provideproposed suchmonitoring, notice.management and mitigation plan.

-(d) *AB298*Comply –with 4 – (c) Allow for a period during which any person may submit any comment, analysis or other information in response to the proposedprovisions monitoring,of managementNRS or533.353, mitigationif plan.applicable.

(d)2. Comply with the provisions of NRS 533.353.

The State Engineer may consider any comment on the application or the monitoring, management and mitigation plan submitted:

(a) By any person to whom the State Engineer provided notice pursuant to paragraph (b) of subsection 1;

or (b) Jointly by the applicant and any person to whom the State Engineer provided notice pursuant to paragraph (b) of subsection 1.

(a) Send notice of the approval by certified mail to each person to whom the State Engineer provided notice pursuant to paragraph (b) of subsection 2;1;

- *AB298_R1* – 5 – 4.

The applicant must pay the cost of the notices required pursuant to this section.

5.

Judicial review pursuant to NRS 533.450 of a monitoring, management and mitigation plan approved by the State Engineer must occur at the same time the approval or rejection of the application by the State Engineer is subject to judicial review.

If a monitoring, management or mitigation plan that is approved by the State Engineer requires the applicant to furnish replacementmitigation water to a holder of existing rights or owner of aan existing domestic well:

Before replacementmitigation water is furnished, the person who will be furnishing the replacementmitigation water must file a notice with the State Engineer setting forth:

and (c) The place of use of the water that will be furnished.furnished;

and (d) The number associated with the permit, certificate or vested right of the existing right, the number associated with the well log or the locations of the existing domestic wells that will receive the water, as applicable.

The person furnishing replacementmitigation water is not required to submit an application pursuant to NRS 533.345 for a permit to change the point of diversion, manner of use or place of use of the replacementmitigation water.water provided that the State Engineer considered the furnishing of mitigation water as part of the original monitoring, management and mitigation plan.

The time periods for cancellation, forfeiture and abandonment of a water right pursuant to NRS 533.060533.060, 533.410 and 534.090 and for filing proof of beneficial use under the terms of a permit to appropriate water are tolled for as long as replacementmitigation water must be furnished.

4.

The holder of an existing right or owner of an existing domestic well is not entitled to a specific source of water.

The State Engineer may approveconsider an amendment to aan approved monitoring, management and mitigation plan.plan proposed by:

(a) The applicant who submitted the monitoring, management and mitigation plan;

(b) A holder of an existing right or the owner of an existing domestic well with whom the applicant may conflict;

or (c) Any person who filed a protest to an application pursuant to NRS 533.365.

A proposed amendment must be accompanied by substantial evidence that demonstrates the feasibility and - *AB298_R1* – 6 – effectiveness of the amendment in eliminating the conflict or conflicts.

3.

- *AB298* – 5 – (c) Allow for a period during which any person to whom the State Engineer sent notice of the original monitoring, management and mitigation plan may submit any comment, analysis or other information in response to the proposed amendment to the monitoring, management and mitigation plan.plan for the consideration of the State Engineer.

(d) Comply with the provisions of NRS 533.353.533.353, if applicable.

3.4.

(a) Send notice of the approval by certified mail to each person to whom the State Engineer provided notice pursuant to paragraph (b) of subsection 2;3;

5.

The applicant or person requesting the amendment must pay the cost of the notices required pursuant to this section.

6.

The State Engineer may require a person who has submitted a monitoring, management and mitigation plan to conduct additional monitoring or change the location of the monitoring.

Such a request by the State Engineer is not subject to the provisions of this section if the State Engineer determines that the existing rights, protectable interests in existing domestic wells and important environmental resources will continue to be protected under the modified monitoring provisions.

533.005 As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 533.007 to 533.023, inclusive, and sectionsections 2 and 2.5 of this act have the meanings ascribed to them in those sections.

7.5.

NRS 533.024 is hereby amended to read as follows:

533.024 The Legislature declares that:

1.

It is the policy of this State:

- *AB298_R1* – 7 – (a) To encourage and promote the use of effluent, where that use is not contrary to the public health, safety or welfare, and where that use does not interfere with federal obligations to deliver water of the Colorado River.

(b) To recognize the importance of domestic wells as appurtenances to private homes, to create a protectable interest in such wells and to protect their supply of water from unreasonable adverse effects which are caused by municipal, quasi-municipal or industrial uses and which cannot reasonably be mitigated.

(c) To encourage the State Engineer to consider the best available science in rendering decisions concerning the available surface and underground sources of water in Nevada.

(d) To encourage and promote the use of water to prevent or reduce the spread of wildfire or to rehabilitate areas burned by wildfire, including, without limitation, through the establishment of vegetative cover that is resistant to fire.

(e) To encourage any person applying for a permit to appropriate water or to change the point of diversion, place of use or manner of use of water to work with holders of existing rights and owners of existing wells to address issues or conflicts with the application before any hearing that may be held by the State Engineer on the application.

(f) To encourage the use of monitoring, management and mitigation plans to:

(1) Identify potential issues with future water development;

(2) Seek to avoid conflicts with existing rights, protectable interests in existing domestic wells and the public interest;

(3) Ensure any proposed interbasin transfer of groundwater is environmentally sound;

(4) Manage groundwater basins consistent with the doctrine of prior appropriation;

and (5) When necessary, mitigate the impact of an application for the purpose of eliminating any conflict with existing rights, protectable interests in domestic wells and important environmental resources.

2.

The procedures in this chapter for changing the place of diversion, manner of use or place of use of water, and for confirming a report of conveyance, are not intended to have the effect of quieting title to or changing ownership of a water right and that only a court of competent jurisdiction has the power to determine conflicting claims to ownership of a water right.

3.

The procedures in this chapter regarding the review or approval of a monitoring, management and mitigation plan are not intended to abrogate the authority of the State Engineer to - *AB298_R1* – 8 – protect existing rights and protectable interests in existing domestic wells.

Sec.

- *AB298* – 6 – 3.

- *AB298_R1* – 9 – (1) Intention in good faith to construct any work necessary to apply the water to the intended beneficial use with reasonable diligence;

In addition to the criteria set forth in subsections 1 and 2,2 [,] and section 3 of this act, in determining whether an application for an interbasin transfer of groundwater must be rejected pursuant to this section, the State Engineer shall consider:

- *AB298* – 7 – (d) Whether the proposed action is an appropriate long-term use which will not unduly limit the future growth and development in the basin from which the water is exported;

- *AB298_R1* – 10 – (e) Where court actions or adjudications are pending, which may affect the outcome of the application.

If the State Engineer has not approved, rejected or held a hearing on an application within 7 years after the final date for filing a protest, the State Engineer shall cause notice of the application to be republished pursuant to NRS 533.360 immediately preceding - *AB298* – 8 – the time at which the State Engineer is ready to approve or reject the application.

Except as otherwise provided in subsection 11, if the application is approved, the applicant may, on receipt thereof, proceed with the construction of the necessary works and take all steps required to apply the water to - *AB298_R1* – 11 – beneficial use and to perfect the proposed appropriation.

(b) “Environmentally“Unappropriated sound”water” means that the usequantity of groundwater forthat anis: interbasin transfer of water will not cause:

-(1) *AB298*Available –for 9appropriation –based (1)on Anthe unreasonableperennial effectyield onof naturalthe resourcessource of supply which dependdoes onnot groundwaterrequire inthe actual capture of the basinrecharge fromor whichdischarge from the watersource isof transferred;supply;

orand (2) TheNot inabilitycommitted to sustain,existing overpermitted, acertificated, 75-yearfederally planningreserved, period,decreed current or successorvested plant and wildlife communities in the basin from which the water isrights. transferred.

(c) “Unappropriated water” means the quantity of groundwater that is:

(1) Available for appropriation based on the perennial yield of the source of supply;

and (2) Not committed to existing water rights.

[The]The Exceptproposed asuse otherwiseconflicts providedwith inexisting NRSrights 533.353[;] and sectionsthe 3conflict tocannot 6,be inclusive,eliminated ofthrough thisthe act,use theof proposeda usemonitoring, conflictsmanagement withand existingmitigation rights;plan;

or - *AB298_R1* – 12 – 6.

Except as otherwise provided in NRS 533.353, any person feeling aggrieved by any order or decision of the State Engineer, acting in person or through the assistants of the State - *AB298* – 10 – Engineer or the water commissioner, affecting the person’s interests, when the order or decision relates to the administration of determined rights or is made pursuant to NRS 533.270 to 533.445, inclusive, and sections 3 to 6, inclusive, of this act, or NRS 533.481, 534.193, 535.200 or 536.200, may have the same reviewed by a proceeding for that purpose, insofar as may be in the nature of an appeal, which must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated, but on stream systems where a decree of court has been entered, the action must be initiated in the court that entered the decree.

No such proceedings may be entertained unless notice thereof, containing a statement of the substance of the order or decision complained of, and of the manner in which the same injuriously affects the petitioner’s interests, has been served upon the State Engineer, personally or by registered or certified mail, at the Office of the State Engineer at the State Capital within 30 days - *AB298_R1* – 13 – following the rendition of the order or decision in question.

In - *AB298* – 11 – determining whether to grant or deny the motion for a stay, the court shall consider:

Appeals may be taken to the appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution from - *AB298_R1* – 14 – the judgment of the district court in the same manner as in other civil cases.

- *AB298* – 12 – Sec.

Any person who files an application for a permit to appropriate water from above or beneath the surface of the ground for use outside this State, or to change the point of diversion under an existing water right which has a place of use outside of this - *AB298_R1* – 15 – State, or to change the place of use of water from a location in this State to a location outside this State under an existing right, must file an application with the State Engineer for a permit to do so pursuant to provisions of NRS 533.324 to 533.450, inclusive, and sections 3 to 6, inclusive, of this act, and chapter 534 of NRS.

- *AB298* – 13 – (d) Whether the water that is the subject of the application could feasibly be used to alleviate current or reasonably anticipated shortages of water in this State;

Upon submittal of an application under this section, the applicant and, if the applicant is a natural person, the personal - *AB298_R1* – 16 – representative of the person, are subject to the jurisdiction of the courts of this State and to service of process as provided in NRS 14.065.

If the records of the State Engineer or any other documents specified by the State Engineer indicate at least 4 consecutive years, but less than 5 consecutive years, of nonuse of all or any part of a water right which is governed by this chapter, the - *AB298* – 14 – State Engineer shall notify the owner of the water right, as determined in the records of the Office of the State Engineer, by registered or certified mail that the owner has 1 year after the date of the notice in which to use the water right beneficially and to provide proof of such use to the State Engineer or apply for relief pursuant to subsection 2 to avoid forfeiting the water right.

- *AB298_R1* – 17 – (a) Whether the holder has shown good cause for the holder’s failure to use all or any part of the water beneficially for the purpose for which the holder’s right is acquired or claimed;

¬ The State Engineer shall notify, by registered or certified mail, the owner of the water right, as determined in the records of the - *AB298* – 15 – Office of the State Engineer, of whether the State Engineer has granted or denied the holder’s request for an extension pursuant to this subsection.

If, upon notice by registered or certified mail to the owner of record who had the prior right, the owner of record of the prior right fails to appeal the ruling in the manner provided for in NRS 533.450, and - *AB298_R1* – 18 – within the time provided for therein, the alleged abandonment declaration as set forth by the State Engineer becomes final.

and - *AB298* – 16 – (b) Whose reasonably expected rate of diversion is one-half cubic foot per second or more, ¬ to report periodically to the State Engineer concerning the effect of that well on other previously existing wells that are located within 2,500 feet of the well.

This section does not prevent the granting of permits to applicants later in time on the ground that the diversions under the proposed later appropriations may cause the water level to be lowered at the point of diversion of a prior appropriator, so long as any protectable interests in existing domestic wells as set forth in NRS 533.024 and the rights of holders of existing appropriations can be satisfied under such[such express conditionsconditions.] [.] , the terms of the permit or a monitoring, management and mitigation plan.

and (b) Whose reasonably expected rate of diversion is one-half cubic foot per second or more, - *AB298_R1* – 19 – ¬ the State Engineer shall include as a condition of the permit that pumping water pursuant to the permit may be limited or prohibited to prevent any unreasonable adverse effects on an existing domestic well located within 2,500 feet of the well, unless the holder of the permit and the owner of the domestic well have agreed to alternative measures that mitigate those adverse effects.

- *AB298* – 17 – (b) Shall designate as a critical management area any basin in which withdrawals of groundwater consistently exceed the perennial yield of the basin upon receipt of a petition for such a designation which is signed by a majority of the holders of certificates or permits to appropriate water in the basin that are on file in the Office of the State Engineer.

It has examined the past and present practice of the State Engineer with respect to existing water rights and protectable interests in existing domestic wells and the approval of an application to appropriate water or to change the point of diversion, manner of use - *AB298_R1* – 20 – or place of use subject to the development and implementation of a monitoring, management and mitigation plan and finds that the State Engineer has applied the provisions of Nevada law relating to such actions in a manner consistent with the provisions of this act.

The provisions of this act are intended to clarify rather than change the existing application of chapters 533 and 534 of NRS relating to existing water rights and protectable interests in existing domestic wells and the approval of an application to appropriate water or to change the point of diversion, manner of use or place of use subject to the development and implementation of a monitoring, management and mitigation plan, and to promote thereby stability andNRS.consistency consistency in the administration of chapters 533 and 534 of NRS.Sec.

Sec.

This act becomes effective upon passage and approval and, to the extent that it applies to applications for a permit to appropriate water or to change the point of diversion, manner of use - *AB298* – 18 – or place of use submitted to the State Engineer on or before the effective date of this act or to existing water rights or protectable interests in an existing domestic well with a priority date on or before the effective date of this act, shall apply to such applications, water rights and protectable interests retroactively and prospectively.

H - *AB298**AB298_R1*