Under existing law, the State Engineer is authorized to make such reasonable rules and regulations as may be necessary for the proper and orderly execution of the powers conferred upon him or her by law, including regulations governing the practice and procedure in all contests before the Office of the State Engineer. (NRS 532.120) Section 1 of this bill requires the State Engineer to adopt regulations: (1) governing hearings before the Office; and (2) to establish a pre-application review process for purposes of the provisions governing underground water and wells, the adjudication of vested water rights and the appropriation of public water, which must include procedures to submit an application for review for potential issues prior to the filing of the application and to meet with the State Engineer or his or her designee at the request of a potential applicant. (Chapters 533 and 534 of NRS) Under existing law, any person who wishes to appropriate water for beneficial use in Nevada, or change the place of diversion, manner of use or place of use of water already appropriated, is required to first apply for a permit to do so. (NRS 533.325) Existing law requires the State Engineer to publish notice of such an application in certain newspapers of general publication and on the Internet website of the Division of Water Resources of the State Department of Conservation and Natural Resources. (NRS 533.360) Any interested person may file a written protest against the granting of such an application with the State Engineer and the State Engineer may hold a hearing regarding such a protest. (NRS 533.365) The State Engineer is generally required to approve or reject the application within 2 years, unless authorized to postpone taking action for certain reasons specified by law. (NRS 533.370) Section 3 of this bill: (1) requires, with certain exceptions, the State Engineer to issue a preliminary determination on an application and any protest to the application within 150 days after the last publication of the notice of the application, and to provide notice of the preliminary determination to the applicant and each protestant, if any; (2) provides for an applicant or any protestant to file an objection to the preliminary determination within 30 days after issuance; (3) requires the State Engineer to give an applicant and any protestants notice of a filed objection within 15 days after filing; (4) requires, with certain exceptions, the State Engineer to hold a hearing regarding an objection within 120 days after receipt of the objection and to provide notice of the hearing; and (5) authorizes the State Engineer to postpone issuing a preliminary determination under certain conditions. Section 5 of this bill applies the definition of “water already appropriated” to the provisions of section 3. Section 8 of this bill applies the requirements of section 3 to applications for reservoir permits, as applicable. Section 4 of this bill requires the State Engineer to prepare and submit a biennial report to the Director of the Legislative Counsel Bureau for transmittal to the Legislative Commission relating to certain applications to appropriate water that have been pending before the State Engineer for 2 or more years. Under existing law, the State Engineer must notify an applicant by certified mail of any written protest filed against the application and give notice of any hearing to be held on such a protest by certified mail to both the applicant and protestant. If the State Engineer holds a hearing regarding any filed protest, he or she must render a decision on the protested application not later than 240 days after: (1) the transcripts of the hearing become available; or (2) a date specified by the State Engineer for the filing of additional information. (NRS 533.365) Section 6 of this bill requires such notice to be provided by registered or certified mail. Section 6 also limits the deadline for the State Engineer to render a decision on a protest after a hearing to only those hearings on a protest to an application that seeks a temporary change of place of diversion, manner of use or place of use of water already appropriated. Existing law sets forth the conditions of and manner in which the State Engineer shall approve or reject an application to appropriate water for beneficial use in Nevada, including requiring the State Engineer, with certain exceptions, to approve or reject each application within 2 years after the final date for filing a protest and to postpone taking action on an application in specific instances. Existing law requires the State Engineer to issue a written decision if a hearing is held regarding an application and that the decision include certain findings of fact and conclusions of law. (NRS 533.370) Section 7 of this bill requires the State Engineer, with certain exceptions, to approve or reject each application within 1 year after the issuance of a preliminary determination pursuant to section 3, if there was no objection filed to the preliminary determination, or within 240 days after a hearing is held on an objection to a preliminary determination or a protest. Section 7 also authorizes the State Engineer to postpone taking action on an application under certain circumstances. Section 7 further requires that if a hearing is held regarding an application, only the final decision by the State Engineer must be in writing. Existing law sets forth the procedures for judicial review of certain orders and decisions of the State Engineer, including that a decision of the State Engineer is deemed prima facie correct and that the burden of proof is on the party appealing the decision. (NRS 533.450) Section 9 of this bill removes the presumption that the decision of the State Engineer is prima facie correct and sets forth the standard of review for a court to review the decision. Under existing law, any person, including a governmental entity who may be adversely affected by a project for the recharge, storage and recovery of water, is authorized to file a written protest with the State Engineer against the granting of an application for a permit to operate such project. Existing law also requires the State Engineer, with certain exceptions, to approve or deny an application for such a permit within 1 year after the final date for filing a protest. (NRS 534.270) Section 10 of this bill: (1) requires the State Engineer to issue a preliminary determination on such an application and any protest within 120 days after the last publication of the notice of the application and to provide notice of the preliminary determination to the applicant and protestant, if any; (2) provides for an applicant or any protestant to file an objection to the preliminary determination within 30 days after the issuance of the preliminary determination; (3) requires the State Engineer to give an applicant and any protestant notice of a filed objection within 15 days after filing; (4) requires, with certain exceptions, the State Engineer to hold a hearing regarding an objection within 120 days after receipt of the objection and to provide notice of the hearing; and (5) authorizes the State Engineer to postpone issuing a preliminary determination under certain circumstances. Section 10 further requires the State Engineer, with certain exceptions, to either approve or deny each application within 1 year after the issuance of a preliminary determination that is not objected to, or within 1 year after the date of the hearing held regarding an objection to a preliminary determination. Under existing law the State Engineer is exempt from the Nevada Administrative Procedure Act, which establishes procedural requirements for the adoption of regulations and the adjudication of contested cases. (Chapter 233B of NRS) Section 11 of this bill makes the State Engineer subject to the Nevada Administrative Procedure Act for purposes of adopting regulations and certain provisions governing the adjudication of contested cases.

Statutes affected:
As Introduced: 532.120, 533.324, 533.365, 533.370, 533.440, 533.450, 534.270, 233B.039
BDR: 532.120, 533.324, 533.365, 533.370, 533.440, 533.450, 534.270, 233B.039