A.B. 26
- *AB26*
ASSEMBLY BILL NO. 26–COMMITTEE ON NATURAL RESOURCES
(ON BEHALF OF THE DIVISION OF WATER RESOURCES
OF THE STATE DEPARTMENT OF
CONSERVATION AND NATURAL RESOURCES)
PREFILED NOVEMBER 12, 2024
____________
Referred to Committee on Natural Resources
SUMMARY—Revises provisions relating to dams. (BDR 48-261)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State: No.
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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.
AN ACT relating to water; exempting the State Engineer from
liability for certain damages resulting from the
performance of certain duties; revising provisions relating
to the construction, reconstruction or alteration of a dam;
exempting certain works under the jurisdiction of the
United States Bureau of Reclamation or the United States
Army Corps of Engineers from certain requirements
relating to dams; requiring that certain applications
relating to dams be made available to the Department of
Wildlife; authorizing the State Engineer to enter certain
parcels of land to access a dam or other obstruction;
revising provisions relating to the removal of any dam,
diversion works or obstruction; revising provisions
relating to the removal of certain animals interfering with
the flow of water; providing a penalty; and providing
other matters properly relating thereto.
Legislative Counsel’s Digest:
Under existing law, the State Engineer is authorized to regulate the 1
construction, reconstruction, alteration and operation of dams and other 2
obstructions of waterways in the State of Nevada. (NRS 532.110, 532.120, chapter 3
535 of NRS) Section 1 of this bill exempts the State Engineer and any assistant or 4
authorized agent of the State Engineer from liability for damages caused by certain 5
failures of a dam or reservoir that may occur as a result of an inspection, emergency 6
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response or enforcement of an order or regulation by the State Engineer or his or 7
her assistant or authorized agent. 8
Under existing law, any person proposing to construct a dam in this State must 9
obtain a permit from the State Engineer to appropriate, store and use the water 10
impounded or diverted by the proposed dam before beginning construction and, 11
upon obtaining or possessing such a permit, must submit, in triplicate, to the State 12
Engineer for approval plans and specifications for certain dams. Existing law 13
further: (1) authorizes the State Engineer to inspect the construction of a dam at any 14
time for compliance with the approved plans and specifications; (2) prohibits the 15
construction and use of any dam, under certain circumstances, before the approval 16
of plans and specifications by the State Engineer; and (3) makes it a misdemeanor 17
to construct or use a dam without first obtaining such approval. (NRS 535.010) 18
Section 2 of this bill makes these provisions applicable to the reconstruction or 19
alteration of a dam. Section 2 also removes the requirement that any person 20
proposing to construct a dam in this State obtain a permit to appropriate, store and 21
use water impounded or diverted by the proposed dam before beginning 22
construction of the dam and instead requires any person proposing to construct, 23
reconstruct or alter a dam to obtain approval from the State Engineer before 24
beginning construction, reconstruction or alteration of the dam. Section 2 further: 25
(1) requires a person to submit plans and specifications to the State Engineer for 26
approval if the dam is classified by the State Engineer as a high hazard or 27
significant hazard dam; and (2) removes the requirement that such plans and 28
specifications be submitted in triplicate. 29
Under existing law, the State Engineer is authorized to impose certain 30
administrative fines for, or may seek injunctive relief upon, the violation of any 31
permit issued by the State Engineer relating to the construction, reconstruction or 32
alteration of a dam. (NRS 535.200, 535.210) Sections 8 and 9 of this bill authorize 33
the imposition of certain administrative fines or the seeking of injunctive relief 34
upon the violation of any approval issued by the State Engineer in conformity with 35
the removal of the requirement to obtain a permit made in section 2. 36
Under existing law, the State Engineer is required to file with the Board of 37
Wildlife Commissioners a copy of applications for approval of plans and 38
specifications for a new dam or for the alteration and enlargement of any dam in a 39
stream. (NRS 535.020) Section 3 of this bill instead requires the State Engineer to 40
notify the Department of Wildlife when an application for decommissioning a dam 41
is filed or a request for approval of plans and specifications of a new dam or for the 42
alteration and enlargement of any dam in a stream is submitted and to make the 43
application or plans and specifications available to the Department. 44
Under existing law, works constructed by the United States Bureau of 45
Reclamation or the United States Army Corps of Engineers are exempt from certain 46
requirements relating to dams, including requirements for the approval of plans and 47
specifications and inspections and safety and repair requirements. (NRS 535.010, 48
535.030) Sections 2 and 4 of this bill exempt any works under the jurisdiction of 49
the United States Bureau of Reclamation or the United States Army Corps of 50
Engineers from such requirements. 51
Under existing law, the State Engineer or any assistant or authorized agent of 52
the State Engineer is authorized to enter any land, at a reasonable hour, where a 53
dam or obstruction is situated to investigate and carry out the duties of the State 54
Engineer. (NRS 535.035) Section 5 of this bill further authorizes the State Engineer 55
or any assistant or authorized agent of the State Engineer to enter the land of any 56
parcel adjacent to where a dam or other obstruction is located as is necessary to 57
access the dam or other obstruction. 58
Under existing law, the State Engineer is authorized to order the removal of any 59
dam, diversion works or obstruction that has not been legally established by certain 60
means. If such a dam, diversion works or obstruction is ordered removed by the 61
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State Engineer and is not removed after the service of a 30-day notice upon the 62
owner or person controlling the dam, diversion works or obstruction, or an appeal 63
of the removal order has not been filed, the State Engineer may remove the dam, 64
diversion works or obstruction. (NRS 535.050) Section 6 of this bill authorizes the 65
State Engineer to remove a dam, diversion works or obstruction not legally 66
established after providing a written, not served, copy of the 30-day notice on the 67
owner of the dam, diversion works or obstruction. 68
Under existing law, the State Engineer is authorized to remove a beaver on 69
privately owned land if it is determined the beaver is interfering with the flow of 70
water to the detriment of water users and after service of a written notice on the 71
owner of the private land. (NRS 535.060) Section 7 of this bill requires that the 72
written notice be provided to the land owner and need not be served. 73
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 535 of NRS is hereby amended by adding 1
thereto a new section to read as follows: 2
The State Engineer and any assistant or authorized agent of 3
the State Engineer are not liable for any damages caused by the 4
partial or total failure of a dam or reservoir as a result of any 5
inspection, emergency response or enforcement of an order or 6
regulation by the State Engineer or his or her assistant or 7
authorized agent. 8
Sec. 2. NRS 535.010 is hereby amended to read as follows: 9
535.010 1. Any person proposing to construct , reconstruct 10
or alter a dam in this state shall, before beginning construction, 11
reconstruction or alteration of the dam, obtain approval from the 12
State Engineer . [a permit to appropriate, store and use the water to 13
be impounded by or diverted by the dam.] 14
2. Any [such] person [obtaining or possessing such a permit] 15
who obtains approval from the State Engineer pursuant to 16
subsection 1 shall: 17
(a) Before constructing, reconstructing or altering in any way 18
any dam, notify the State Engineer thereof; and 19
(b) [Where the dam is] Submit to the State Engineer for 20
approval plans and specifications for the construction, 21
reconstruction or alteration of the dam, if the dam: 22
(1) Is or will be 20 feet or more in height, measured from the 23
downstream toe to the crest of the dam [, or is] ; 24
(2) Is less than 20 feet in height and will impound more than 25
20 acre-feet of water [, submit to the State Engineer in triplicate 26
plans and specifications thereof for approval 30 days before 27
construction is to begin.] ; or 28
(3) Is classified by the State Engineer as a high hazard or 29
significant hazard dam. 30
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3. The State Engineer shall examine [such] any plans and 1
specifications submitted pursuant to subsection 2 and if [the State 2
Engineer approves them] approved, the State Engineer shall return 3
[one] a copy of the plans and specifications with such approval to 4
the applicant. If the State Engineer disapproves any part of the plans 5
and specifications the State Engineer shall return them to the 6
applicant for correction or revision. 7
4. The construction , reconstruction, alteration and use of any 8
dam is prohibited before approval [of the plans and specifications] 9
by the State Engineer [.] is obtained pursuant to subsection 1. 10
5. The State Engineer may at any time inspect or cause to be 11
inspected the construction , reconstruction or alteration work on a 12
dam while it is in progress to determine that it is being done in 13
accordance with the approved plans and specifications [.] , if 14
applicable. 15
6. [This section applies to new construction, reconstruction and 16
alteration of old structures. 17
7.] The provisions of this section relating to the approval of 18
plans and specifications and inspection of dams do not apply to 19
works [constructed by] under the jurisdiction of the United States 20
Bureau of Reclamation or the United States Army Corps of 21
Engineers , [;] but such federal agencies shall file duplicate plans 22
and specifications with the State Engineer. 23
[8.] 7. Any person beginning the construction , reconstruction 24
or alteration of any dam before notifying the State Engineer in 25
accordance with paragraph (a) of subsection 2 or obtaining 26
approval of the plans and specifications by the State Engineer, [or 27
without having given the State Engineer 30 days’ advance notice of 28
any proposed change, reconstruction or alteration thereof,] if 29
required pursuant to paragraph (b) of subsection 2, is guilty of a 30
misdemeanor. Each day of violation of this section constitutes a 31
separate offense and is separately punishable. 32
Sec. 3. NRS 535.020 is hereby amended to read as follows: 33
535.020 1. Whenever an application for decommissioning a 34
dam is filed or a request for approval of plans and specifications for 35
a new dam or for the alteration and enlargement of any dam in any 36
stream in this state is [filed with] submitted to the State Engineer, 37
the State Engineer shall [file a copy of the application with] notify 38
the [Board] Department of Wildlife [Commissioners.] and make 39
the application or plans and specifications, as applicable, available 40
to the Department of Wildlife. 41
2. In the construction of a dam, or the alteration or enlargement 42
of a dam, the owner shall conform with the provisions of law for the 43
installation of fishways over or around dams and for the protection 44
and preservation of fish in streams obstructed by dams. 45
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Sec. 4. NRS 535.030 is hereby amended to read as follows: 1
535.030 1. The State Engineer from time to time shall: 2
(a) Make inspections of dams at state expense for the purpose of 3
determining their safety; and 4
(b) Require owners to perform at their expense such work as 5
may be necessary to supply the State Engineer with information as 6
to the safety of such dams. 7
2. The owners shall perform at their expense any other work 8
necessary to maintenance and operation which will safeguard life 9
and property. 10
3. If at any time the condition of any dam becomes so 11
dangerous to the safety of life or property as not to permit sufficient 12
time for the issuance and enforcement of an order relative to the 13
maintenance or operation thereof, the State Engineer may, if he or 14
she deems it necessary, immediately employ the following remedial 15
measures to protect either life or property: 16
(a) Lower the water level by releasing water from the reservoir. 17
(b) Completely empty the reservoir. 18
(c) Take such other steps as may be essential to safeguard life 19
and property. 20
4. The provisions of this section shall not apply to works 21
[constructed by] under the jurisdiction of the United States Bureau 22
of Reclamation or the United States Army Corps of Engineers. 23
Sec. 5. NRS 535.035 is hereby amended to read as follows: 24
535.035 In addition to any inspection conducted pursuant to 25
NRS 535.010 or 535.030, the State Engineer or any assistant or 26
authorized agent of the State Engineer may enter the land of any 27
owner or proprietor where any dam or other obstruction is [situated] 28
located, and any adjacent parcel of land as is necessary to access 29
the dam or other obstruction, at any reasonable hour of the day to 30
investigate and carry out the duties of the State Engineer pursuant to 31
this chapter. 32
Sec. 6. NRS 535.050 is hereby amended to read as follows: 33
535.050 1. The State Engineer has the right, power and 34
authority to order the removal of any dam, diversion works or 35
obstruction that [has been placed in any stream channel or 36
watercourse when the dam, diversion works or obstruction] has not 37
been legally established and recognized through a valid claim of 38
vested right, by decree of court or [by a permit issued] approved by 39
the State of Nevada [.] in accordance with the provisions of this 40
section. 41
2. Nothing in this section is to be construed as giving the State 42
Engineer any right or authority to remove any dam or diversion 43
works that has been so legally recognized and established. 44
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3. If the dam, diversion works or obstruction has not been 1
removed after 30 days’ notice in writing given by the State Engineer 2
[and served upon] to the owner [or person controlling] of the dam, 3
diversion works or obstruction, or if no appeal has been taken from 4
the order of the State Engineer as is provided for in NRS 533.450, 5
then the State Engineer may remove the dam, diversion works or 6
obstruction. 7
4. The State Engineer shall charge the actual cost of [that] the 8
removal of the dam, diversion works or obstruction to the water 9
distribution account and thereafter present an itemized statement of 10
the charge to the board of county commissioners of the county 11
wherein those expenses were incurred. The board of county 12
commissioners shall thereupon present a bill for the expenses to the 13
person liable therefor under this section, and if that person neglects 14
for 30 days thereafter to pay it, the bill and costs become a lien upon 15
the lands and property of the person so liable for the payment of the 16
bill, and must be collected as delinquent taxes against the lands and 17
property are collected. 18
Sec. 7. NRS 535.060 is hereby amended to read as follows: 19
535.060 1. On any stream system and its tributaries in this 20
state the distribution of the waters of which are vested in the State 21
Engineer by law or the final decree of court, where beaver, by the 22
construction of dams or otherwise, are found to be interfering with 23
the lawful and necessary distribution of water to the proper users 24
thereof, the State Engineer, upon complaint of any interested water 25
user, shall investigate or cause the investigation of the matter. 26
2. The State Engineer and his or her assistants and water 27
commissioners and the Department of Wildlife and its agents may 28
enter upon privately owned lands for the purposes of investigating 29
the conditions complained of and the removal and trapping of 30
beaver. 31
3. If satisfied that such beaver are interfering with the flow of 32
water to the detriment of water users, the State Engineer shall 33
[serve] provide a written notice [on] to the owner of the land, if it is 34
privately owned, stating: 35
(a) That the beaver thereon are interfering with or stopping the 36
flow of water necessary for the proper serving of water rights; and 37
(b) That unless, within 10 days from receipt of the notice, 38
written objection to the removal of such beaver is filed with the 39
State Engineer by the landowner, the Department of Wildlife will 40
remove such beaver or as many thereof as will rectify the existing 41
conditions. 42
4. Failure of the landowner to file such written objections shall 43
be deemed a waiver thereof. Upon receipt of written objections, the 44
State Engineer may make further investigation and may sustain or 45
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overrule the objections as the facts warrant. Upon the overruling of 1
the objections, the landowner may have them reviewed by the 2
district court having jurisdiction of the land by filing therein a 3
petition for review within 10 days from the receipt of the order of 4
the State Engineer overruling the objections. The proceedings on the 5
petition must be informal and heard by the court at the earliest 6
possible moment. 7
5. Upon the landowner’s waiver of objections to the removal of 8
beaver from his or her land, or upon final determination by the court 9
that the beaver should be removed, the State Engineer shall 10
immediately notify the Department of Wildlife of the waiver or 11
determination and the Department or its agents shall enter upon the 12
land from which the beaver are to be removed and remove them or 13
as many as may be necessary to prevent the improper flow of water 14
as directed by the State Engineer. 15
6. The State Engineer may remove or cause the removal of any 16
beaver dam found to be obstructing the proper and necessary flow of 17
water to the detriment of water users. 18
Sec. 8. NRS 535.200 is hereby amended to read as follows: 19
535.200 1. In addition to any other penalty provided by law, 20
the State Engineer may, after notice and opportunity for a hearing, 21
require a person who violates any provision of this chapter, any 22
[permit,] approval, order or decision issued by the State Engineer 23
pursuant to this chapter or any regulation adopted by the State 24
Engineer pursuant to NRS 532.120 to pay an administrative fine not 25
to exceed $10,000 per day for each violation as determined by the 26
State Engineer. 27
2. If an administrative fine is imposed against a person 28
pursuant to subsection 1, the State Engineer may require the person 29
to pay the costs of the proceeding, including investigative costs and 30
attorney’s fees. 31
3. An order imposing an administrative fine or requiring the 32
payment of costs or fees pursuant to this section may be reviewed 33
by a district court pursuant to NRS 533.450. 34
Sec. 9. NRS 535.210 is hereby amended to read as follows: 35
535.210 1. The State Engineer may seek injunctive relief in 36
the appropriate court to prevent the continuance or occurrence of 37
any act or practice which violates any provision of this chapter, any 38
[permit,] approval, order or decision issued by the State Engineer 39
pursuant to this chapter or any regulation adopted by the State 40
Engineer pursuant to NRS 532.120. 41
2. On a showing by the State Engineer that a person is 42
engaged, or is about to engage, in any act or practice which violates 43
or will violate any provision of this chapter, any [permit,] approval, 44
order or decision issued by the State Engineer pursuant to this 45
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chapter or any regulation adopted by the State Engineer pursuant to 1
NRS 532.120, the court may issue, without a bond, any prohibitory 2
or mandatory injunction that the facts may warrant, including a 3
temporary restraining order issued ex parte or, after notice and 4
hearing, a preliminary or permanent injunction. 5
3. Failure to establish lack of an adequate remedy at law or 6
irreparable harm is not a ground for denying a request for a 7
temporary restraining order or injunction. 8
4. The court may require the posting of a sufficient 9
performance bond or other security to ensure compliance with the 10
court order within the period prescribed. 11
5. Any proceeding conducted or injunction or order issued 12
pursuant to this section is in addition to, and not in lieu of, any other 13
penalty or remedy available for a violation of this chapter. 14
Sec. 10. This act becomes effective upon passage and 15
approval. 16
H