Nac: Chapter 532 - State Engineer


Published: 2015

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month, or Get a Day Pass for only USD$9.99.
NAC: CHAPTER 532 - STATE ENGINEER

[Rev. 11/22/2013 9:30:36 AM--2013]

[NAC-532 Revised Date: 12-11]

CHAPTER 532 - STATE ENGINEER

532.010            Definitions.

532.020            “Alternative penalty” defined.

532.030            “Division” defined.

532.040            “Economic benefit” defined.

532.050            “Enforcement action” defined.

532.060            “Enforcement cost” defined.

532.070            “Finding of alleged violation” defined.

532.080            “Hearing to show cause” defined.

532.090            “Independent advisory committee” defined.

532.100            “Penalty” defined.

532.110            “Person” defined.

532.120            “Requirement” defined.

532.130            “Respondent” defined.

532.140            “State Engineer” defined.

532.150            “Violation” defined.

532.160            “Violation order” defined.

532.180            Computation of time; extension of time; date on which information that is hand-delivered or mailed is deemed filed; electronic transmission of information not accepted without prior written approval.

532.200            Violations: Issuance of warning letter; commencement of enforcement action; injunctive relief.

532.210            Additional penalties: Administrative fines; enforcement costs and cost of compliance inspections; calculation.

532.220            Additional penalties: Order to replace water.

532.230            Hearings to show cause: Appearance of parties; procedure.

532.240            Hearings to show cause: Conduct of persons; maintenance of order.

532.250            Hearing before independent advisory committee: Request; extension of time; notice; final decision.

532.260            Proposal of alternative penalties by respondent.

532.270            Appeals.

 

 

 

      NAC 532.010  Definitions. (NRS 532.120)  As used in this chapter, unless the context otherwise requires, the words and terms defined in NAC 532.020 to 532.160, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.020  “Alternative penalty” defined. (NRS 532.120)  “Alternative penalty” means a settlement proposal submitted by a respondent that, if approved by the Division, ends an enforcement action upon satisfaction of the penalty proposed.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.030  “Division” defined. (NRS 532.120)  “Division” means the Division of Water Resources of the State Department of Conservation and Natural Resources.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.040  “Economic benefit” defined. (NRS 532.120)  “Economic benefit” means any benefit actually or potentially realized or a cost avoided by a person because of a violation.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.050  “Enforcement action” defined. (NRS 532.120)  “Enforcement action” means a finding of alleged violation, a violation order or injunctive relief, or any combination thereof.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.060  “Enforcement cost” defined. (NRS 532.120)  “Enforcement cost” means an amount of money imposed by the State Engineer pursuant to NRS 533.481, 534.193, 535.200 or 536.200 for any costs of a proceeding, including investigative costs and attorney’s fees, incurred by the Division in investigating and stopping a violation.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.070  “Finding of alleged violation” defined. (NRS 532.120)  “Finding of alleged violation” means a notice of an alleged violation sent by the Division to a person which cites the requirement allegedly violated by the person.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.080  “Hearing to show cause” defined. (NRS 532.120)  “Hearing to show cause” means a hearing between a respondent and the Division to determine the manner in which the respondent acted upon a finding of alleged violation or a violation order issued by the Division to the respondent.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.090  “Independent advisory committee” defined. (NRS 532.120)  “Independent advisory committee” means a committee that:

     1.  Consists entirely of members appointed by the Director of the State Department of Conservation and Natural Resources who have knowledge of and experience in the laws and regulations of this State relating to water; and

     2.  Is formed to review an appeal of a penalty assessed for a violation.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.100  “Penalty” defined. (NRS 532.120)  “Penalty” means an administrative fine imposed by the State Engineer in response to a violation pursuant to NRS 533.481, 534.193, 535.200 or 536.200, as appropriate, which may include a requirement to reimburse enforcement costs pursuant to those sections and a requirement to replace not more than 200 percent of any water unlawfully used, wasted or diverted pursuant to NRS 533.481 or 534.193.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.110  “Person” defined. (NRS 532.120)  “Person” has the meaning ascribed to it in NRS 533.010 and 534.014.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.120  “Requirement” defined. (NRS 532.120)  “Requirement” means:

     1.  Any provision of chapter 533, 534, 535 or 536 of NRS;

     2.  Any provision of a permit, certificate, order or decision issued or regulation adopted by the State Engineer; or

     3.  Any provision for the development and use of water from a well for domestic purposes pursuant to NRS 534.013 and 534.180.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.130  “Respondent” defined. (NRS 532.120)  “Respondent” means any person to whom the Division issues a notice of an enforcement action.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.140  “State Engineer” defined. (NRS 532.120)  “State Engineer” has the meaning ascribed to it in NRS 533.015.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.150  “Violation” defined. (NRS 532.120)  “Violation” means any act or failure to act which violates a requirement. The term includes, without limitation:

     1.  Engaging in any activity that is prohibited by or not in compliance with a requirement;

     2.  Engaging in any activity without a required permit or without approval required to engage in that activity; or

     3.  The failure to perform a requirement or the failure to perform a requirement in a timely manner.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.160  “Violation order” defined. (NRS 532.120)  “Violation order” means a decision issued by the State Engineer in conjunction with a finding of alleged violation which sets forth the required actions and periods of time for the respondent to correct a violation specified in the order.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.180  Computation of time; extension of time; date on which information that is hand-delivered or mailed is deemed filed; electronic transmission of information not accepted without prior written approval. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)

     1.  In computing any period of time prescribed by this chapter, the day of the act from which the designated period begins is included. The last day of the period so computed is included unless it is a Saturday, Sunday or legal holiday. If the last day is a Saturday, Sunday or legal holiday, the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. If the period prescribed is less than 7 days, intermediate Saturdays, Sundays or legal holidays are excluded.

     2.  The State Engineer may extend any time limit contained in this chapter for good cause. All requests for extensions must be submitted in writing within the period specified by the State Engineer.

     3.  Any information which is hand-delivered to the Division during regular business hours shall be deemed filed on the date of delivery.

     4.  Any information deposited in the United States mail shall be deemed filed on the date of the postmark on the envelope in which it was mailed, as provided in NRS 238.100.

     5.  Unless the State Engineer gives prior written approval, any information transmitted electronically will not be accepted for filing.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.200  Violations: Issuance of warning letter; commencement of enforcement action; injunctive relief. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)  If a person under the jurisdiction of the Division, including an owner of a well constructed for the development and use of water for domestic purposes, commits a violation, the State Engineer may:

     1.  Issue a warning letter setting forth the alleged violation and requesting the person to correct the violation;

     2.  Commence an enforcement action which will include:

     (a) A finding of alleged violation which:

          (1) Specifies the requirement allegedly violated; and

          (2) Supports the allegation with facts determined by the Division; and

     (b) A violation order which specifies a reasonable deadline by which the respondent must:

          (1) Comply with the requirements set forth in the finding of alleged violation;

          (2) Submit to the Division a written mitigation plan approved by the Division setting forth the circumstances under which the respondent intends to comply with those requirements;

          (3) Meet with Division staff to show cause why the Division should not seek injunctive relief; and

          (4) Submit any other information relating to the violation specified by the Division; or    3.  Seek injunctive relief pursuant to NRS 533.482, 534.195, 535.210 or 536.210, as appropriate.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.210  Additional penalties: Administrative fines; enforcement costs and cost of compliance inspections; calculation. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)

     1.  The State Engineer may assess a penalty not to exceed $10,000 per day for each violation, not including any assessed enforcement costs or requirement to replace any water.

     2.  The period for which the State Engineer may impose an administrative fine pursuant to NRS 533.481, 534.193, 535.200 or 536.200 begins on the first day the violation occurs and continues to accrue until the day the respondent corrects the violation. In calculating a period of time pursuant to this subsection, the State Engineer will not include delays which are not caused by the respondent.

     3.  In addition to an administrative fine, the State Engineer may assess enforcement costs and the cost of compliance inspections as follows:

     (a) For enforcement costs, time spent to enforce actions surrounding the violation by water enforcement staff, supervisors and the Office of the Attorney General, at the full cost of the hourly rate of each employee, including, without limitation, salary, benefits, overhead and other directly related costs.

     (b) For compliance inspections, the amount due based on staff time at the full cost of the hourly rate of the employee, including, without limitation, salary, benefits, overhead and other directly related costs.

     4.  The amount of a penalty assessed pursuant to this section is based on:

     (a) The gravity of the violation, including, without limitation, any economic injury or impact to other persons;

     (b) Whether the respondent made significant progress toward correcting the violation and attempted to comply with any applicable orders of the State Engineer;

     (c) Any prior violations committed by the respondent;

     (d) The economic benefit, if any, derived by the respondent from the violation;

     (e) In the case of unlawfully using, wasting or diverting water:

          (1) The relative amount of water involved; and

          (2) The method used to measure the water in question; and

     (f) Any other relevant facts established at a hearing to show cause before the State Engineer.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.220  Additional penalties: Order to replace water. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)

     1.  In addition to any penalty assessed pursuant to NAC 532.210, the State Engineer may, pursuant to NRS 533.481 or 534.193, order the respondent against whom the penalty is assessed to replace not more than 200 percent of any water unlawfully used, wasted or diverted.

     2.  Before ordering a replacement of water, the State Engineer will consider:

     (a) The value or quantity of water unlawfully used, wasted or diverted, including, without limitation, the cost or difficulty of replacing the water;

     (b) The gravity of the violation, including, without limitation, any economic injury or impact to other persons;

     (c) Whether the respondent attempted to comply with any applicable orders of the State Engineer; and

     (d) The economic benefit, if any, derived by the respondent from the violation.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.230  Hearings to show cause: Appearance of parties; procedure. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)

     1.  The parties may appear in person at a hearing to show cause and may be represented by counsel. All testimony must be given under oath and recorded.

     2.  The Division:

     (a) Shall determine the order of the presentation of evidence; and

     (b) May limit the time and scope of the examination of witnesses and disallow repetitive testimony.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.240  Hearings to show cause: Conduct of persons; maintenance of order. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)

     1.  A person who appears at a hearing to show cause shall conform to the recognized standards of ethical and courteous conduct as determined by the Division. All parties to the hearing, their counsel and the spectators shall conduct themselves in a respectful manner.

     2.  The Division may take any action which it determines is necessary to maintain order during a hearing to show cause, including, without limitation:

     (a) Excluding a party or his or her attorney or authorized representative from the hearing;

     (b) Excluding a witness from the hearing; and

     (c) Limiting the taking of testimony and presentation of evidence during the hearing.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.250  Hearing before independent advisory committee: Request; extension of time; notice; final decision. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)

     1.  A respondent may request, in writing, a hearing before an independent advisory committee within 30 days after the date the State Engineer imposes a penalty against the respondent.

     2.  The independent advisory committee shall schedule a hearing within 30 days after receiving the request, unless the Division extends the time for good cause.

     3.  The State Engineer, in conjunction with the independent advisory committee, will determine the time, date and location of the hearing and notify the respondent of that fact.

     4.  The State Engineer will issue a final decision concerning the appeal within 30 days after the hearing.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.260  Proposal of alternative penalties by respondent. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)  At any time after a violation is committed, the respondent may propose an alternative penalty for the violation. If it is accepted by the State Engineer, the matter may be resolved pursuant to the proposal.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)

      NAC 532.270  Appeals. (NRS 532.120, 533.481, 534.193, 535.200, 536.200)  Pursuant to NRS 533.481, 534.193, 535.200 or 536.200, as appropriate, the respondent may appeal any order or decision of the State Engineer to a district court.

     (Added to NAC by St. Engineer by R024-08, eff. 9-18-2008)