Chapter 17.81
INTERBASIN AND/OR OUT-OF-COUNTY WATER TRANSFER PROJECTS
Sections:
17.81.010 Purpose and definition.
17.81.020 Application—Standard—Addendum A—Addendum B—Exemptions.
17.81.030 Permitting procedure—Preapplication and application process.
17.81.050 Application and addendum requirements.
17.81.060 Conditional use permit maintenance.
17.81.010 Purpose and definition.
Moving water out of Humboldt County, as well as moving water from one groundwater basin to another, is unique in characteristics. Therefore, the county has created this set of permitting requirements. Under the Humboldt County water plan (dated August 2020), the county finds that interbasin water transfer projects and out-of-county transfer projects have varying degrees of impact and risk, thus the county developed these code sections to ensure the health, safety and welfare of Humboldt County residents are protected and to ensure an adequate supply of water remains in Humboldt County to serve the needs of its residents. For the sake of clarity, this will apply to both groundwater and surface water transfers.
A. The requirements in Chapter 17.68 HCC still apply to all projects; however, some interbasin transfers and out-of-county water transfers have additional requirements found in this chapter.
B. For the purpose of this chapter, “interbasin transfer” is defined consistent with NRS 533.007 as a transfer of water from which the proposed point of diversion/appropriation is in a different hydrographic basin than the proposed place of beneficial use.
C. For the purposes of this chapter, “out-of-county water transfer” is defined consistent with NRS 533.438, as an appropriation of water pursuant to a state-issued permit to use water that results in the transfer to and beneficial use of water in a county in this state other than the county in which the water is appropriated or in another state, when the county of origin and appropriation is Humboldt County. (Ord. 12-14-20 § 1)
17.81.020 Application—Standard—Addendum A—Addendum B—Exemptions.
Pursuant to the Humboldt County water plan, the county finds that different types of interbasin and out-of-county water transfer projects have varying impacts and risks. Based on this finding, projects may have different application requirements directly related to the level of potential risk and impact to ensure the health, safety, and welfare of Humboldt County residents are protected. The regional planning commission has discretion to approve use of a different type of application form based on its own findings, the intent of this chapter, the Humboldt County water plan and the community source water protection plan.
There are three-tiered levels of application processes:
Level 1: standard application process that is found in Chapter 17.68 HCC;
Level 2: standard application process and Addendum A that includes additional requirements in certain circumstances; and
Level 3: standard application, Addendum A, and Addendum B include additional requirements related to out-of-county and out-of-basin water transfers as outlined below.
The level of application is determined as follows:
A. Exemption, Small Projects (Level 1). For all interbasin water transfer projects and out-of-county transfer projects that move less than two hundred fifty acre-feet of water annually, follow the standard application requirements and process under Chapter 17.68 HCC.
B. Exemption, Small and Same Projects (Level 1). For out-of-county transfer projects moving less than five hundred acre-feet annually; and the point of diversion and place of use are on the same contiguous farm, existing authorized project (i.e., mine or renewable energy project), or ranch (including adjacent grazing allotment held by the ranch); and the point of diversion and place of use are within the same hydrographic basin; then the applicant can follow the standard application requirements and process under Chapter 17.68 HCC.
C. Additional Addendum A Application Process (Level 2). A standard application pursuant to Chapter 17.68 HCC is required for all projects. Addendum A consists of the additional criteria outlined in HCC 17.81.050(A) through (Q), and is required for:
1. All interbasin water transfers where the basin of origin and the basin of use are both within Humboldt County, and not otherwise qualifying to proceed to Chapter 17.68 HCC pursuant to subsection (A) of this section.
2. All interbasin water transfer projects wherein Humboldt County is the place of use, but not the county of origin, and not otherwise qualifying to proceed to Chapter 17.68 HCC pursuant to subsection (A) of this section.
3. All out-of-county water transfer projects that are not otherwise qualifying to proceed to Chapter 17.68 HCC pursuant to subsection (A) or (B) of this section, and where: (a) the point of diversion and place of use are on the same farm, under an existing authorized project (i.e., mine or renewable energy project), are on the same ranch (including adjacent grazing allotments held by the ranch), or the project is part of a public water system located in part within and serving Humboldt County; and (b) the terminal place of use is less than fifteen miles from the Humboldt County line boundary.
D. Additional Addendum B Application Process (Level 3). A standard application pursuant to Chapter 17.68 HCC is required for all projects. Addendum B contains additional requirements for conditional use permit applications for all water transfer projects moving water out-of-county and not otherwise qualifying under subsection (A), (B), or (C) of this section. Addendum B consists of the criteria outlined in HCC 17.81.050(R) through (S). If your project requires compliance with Addendum B, Addendum A will also be required. (Ord. 12-14-20 § 1)
17.81.030 Permitting procedure—Preapplication and application process.
A. Preapplication/Presubmission Process. Before submitting any application for the conditional use permit under this chapter, and prior to any initiation of NEPA analysis, the applicants in Level 2 and 3 projects (Addendum A and Addendum B) must have a premeeting with Humboldt County regional planning department staff and county representatives to discuss the project application requirements, and provide preliminary documentation as follows:
1. Water Use Permit. Applicant must provide a copy of the application(s) and/or permit(s) submitted to or issued by the Nevada Division of Water Resources (NDWR) along with the map of the proposed water project filed with the NDWR application. Applicant should be prepared to discuss water availability and whether the water contemplated for use in the project is available under the basin of origin’s perineal yield;
2. Inventory. The applicant must provide an abstract summary of water rights from the affected water source. The abstract will include all vested, decreed, permitted, and certificated rights showing the annual duty, diversion rate, owner of record, location of the points of diversion, priority date, and date in which the perineal yield was fully appropriated in the basin (groundwater only), and a narrative describing the estimated water availability;
3. Hydrological and Hydrogeological Study. If a study has been completed to assess the project’s hydrological and hydrogeological effects, as well as environmental consequences, pursuant to any federal or state agency, the applicant must provide this study. If no such study has been done, the applicant should be prepared to discuss the use and need for such study with the understanding that the county may require that such study be completed to determine the effects of the proposed water project on the county environment, the groundwater and surface water systems, impact on preexisting water rights, the groundwater basin storage and recovery, subsidence, vegetation and structure changes, and such components that the county deems necessary to assess the projects effects on the environment and water resources. If a study was already completed analyzing some but not all the factors identified herein, such study can be submitted to cover a portion of this requirement. Based upon the project under review, the county may require an additional analysis performed by a hydrologist or hydrogeologist. Any study submitted pursuant to NRS 533.368 may be used, in part, to meet the requirements under this subsection;
4. Requirements from Other Agencies. Applicant must provide a list of permits, approvals or other actions that are needed from other federal, state or local government agencies with appropriate documentation of any such authorizations already granted;
5. Monitoring, Management, Mitigation Plan. The applicant should be prepared to discuss water monitoring, management, and mitigation related to the water use under their project, including at the point(s) of diversion and place of use. The county strongly encourages that any proposed mitigation measures be approved by the affected water user and the county pursuant to Humboldt County’s master plan, community source water protection plan, water plan, code, and ordinances. This may include establishing baseline aquifer conditions of the water basin and scheduled monitoring of preexisting rights and protectable interests. The management of the water resources may include scheduling adjustments to the timing and amount of withdrawal from the aquifer and/or surface water system. Mitigation may require the applicants to offset any impact or interference caused by the project with preexisting rights;
6. National Environmental Policy Act (NEPA). If any part of the water project is on federal land triggering NEPA compliance, the applicant should be prepared to discuss all aspects of the NEPA process and when they intend to initiate it. Humboldt County may suggest that the NEPA analysis include a review of the projects consistency with the Humboldt County master plan, community source water protection plan, water plan, code and ordinances pursuant to 40 CFR 1506.2(d); and
7. Preproject Baseline Environmental Review. Applicants with projects not triggering NEPA compliance should be prepared to discuss plans for environmental compliance including a preliminary analysis by an expert (as can be qualified pursuant to NRS Chapter 50) biologist or resource scientist as to whether the proposed project can be designed, constructed and operated without significant adverse impact to fish, wildlife and native plant resources, including fish and wildlife habitat, migratory routes and state or federally listed threatened or endangered fish, wildlife or plant species.
B. Application Submission. After the preapplication/presubmission meeting, and upon meeting the application conditions and requirements, the applicant shall submit any and all documents needed to satisfy the application requirements to the planning department. Applications and addendums will not be processed if incomplete.
C. Presentation to Regional Planning Commission. Following the submission of the completed application and addendums (if required), staff will gather the necessary information to be presented at a properly noticed meeting of the regional planning commission for approval or denial of the permit following the findings required by, and process identified in, HCC 17.68.090 within sixty-five calendar days.
D. Permitting Contingencies. If a permit is approved, the permit will be contingent on approval of any pending federal land use permits, as well as the review of any documents associated with the environmental impact study or environmental analysis.
E. Permitting Process. For a review of permitting process at time of presentation to the regional planning commission, and after, follow the procedure outlined in HCC 17.68.040 through and including 17.68.170.
F. The requirements under this application process are independent from any processes required by federal, state, or local government. (Ord. 12-14-20 § 1)
17.81.040 Application fee.
An application processing fee is required pursuant to HCC 17.68.040.
In addition, in order to present the completed application to the regional planning commission in a timely manner, the applicant may be required to pay the cost for a contractor to assist the county if the county does not otherwise have the capacity or staff to review and participate in the application review or in matters related to the applicant’s project before federal or state agencies. (Ord. 12-14-20 § 1)
17.81.050 Application and addendum requirements.
Standard application: See Chapter 17.68 HCC.
Addendum A: subsections (A) through (Q) of this section.
Addendum B: subsections (R) through (S) of this section.
The project plan consists of the standard application (Chapter 17.68 HCC), the items provided in the presubmission meeting (see HCC 17.81.030(A)), and all of the following processes required for Addendum A and Addendum B:
A. Project Description and Plan. Applicant must provide a detailed project description of the proposed water transfer project including legal descriptions of the properties on which the project will be located on or upon which the conveyance system will cross, and any existing easements, including conservation or restrictive use easements, or a preliminary title report;
B. Water Use Plan. Applicant must provide a water use plan that indicates the amount, place of origin, and place of use of all water that will be used or reused in connection with interbasin or out-of-county water project, including construction, management, operation and maintenance of the water project, including water used for drilling, including washing facility components, machine components (i.e., blades), and making concrete for foundation pads and other structures within the facility. Any plan created or measures put in place to meet regulations pursuant to state oversight from the Nevada Division of Environmental Protection and/or the Nevada Division of Water Resources may be submitted to meet the requirements of this section;
C. Water Use Permit. Applicant must provide a copy of the permit(s) and any ruling approving the permit(s) as issued by the Nevada Division of Water Resources (NDWR) evidencing State Engineer granting of the water use along with the map of the proposed water project filed with the NDWR application. If the NDWR water use permit or decision issuing the permit is under appeal, the county will take no further steps to review a completed application until the applicant provides written notice to the county that the appeal has been resolved in applicant’s favor. The applicant must also show that the water rights are in the ownership of the applicant and otherwise in good standing;
D. Maps. Applicant must provide maps showing the physical features and land uses within the project area, both before and after construction of the proposed interbasin or out-of-county transfer project. The applicant must include at least one map of the proposed project site printed on a standard eight and one-half-inch by eleven-inch page. The applicant must also have maps, diagrams, or color photographs that show:
1. The project area boundaries;
2. The location, height and dimensions of all existing and proposed structures, pipelines, fencing and building/infrastructure elevations (in color);
3. Existing topography of all sites and areas involved;
4. Hydrographic boundary lines;
5. Easement corridor for water pipelines and/or water conveyance system;
6. Locations of aboveground versus belowground pipelines;
7. Roads, highways, or other utility infrastructure in the project area; and
8. Water bodies, waterways, wetlands and drainage channels;
E. Distance Requirements. Applicant must provide documentation showing the location of and distance to surrounding uses that may be affected by the proposed interbasin or out-of-county transfer project. In order to protect existing uses that are adjacent to the project, the proposed facility must be located a specified distance from any neighboring properties that may be impacted by externalities created by the project. This specified setback distance will be determined by the regional planning department staff and applicant based on project design and its associated safety requirements, and shall be based on an analysis of the project’s externalities together with the nature of the surrounding uses;
F. National Environmental Policy Act (NEPA). If any part of the water project is on federal land triggering NEPA compliance, Humboldt County shall be notified as to participating in the process as a cooperating agency, and Humboldt County may suggest that the NEPA analysis include a review of the projects consistency with the Humboldt County master plan, the community source water protection plan, the Humboldt County water plan, code and ordinances pursuant to 40 CFR 1506.2(d);
G. Travel Routes and Roads—For Existing and Proposed Roads.
1. Applicant must provide a detailed map showing travel routes and roads to and within the proposed site(s) and estimates of traffic loads and quantities both during construction and at buildout/operations phase;
2. County road department staff will determine, in consultation with the applicant, the potential impact and mitigation measures, if any, that will be required of the applicant. Any mitigation requirements shall be proportionate to the impact from the proposed project;
3. All nonpaved temporary or permanent on-site roads and staging areas shall be improved pursuant to county standards or specifications of the Orange Book (standard specifications for public works construction); and
4. During site development and construction, the applicant must regularly water or otherwise mitigate roads and staging areas as necessary to minimize dust and wind erosion;
H. Grading. Applicant must provide a technical report, showing that construction and operation of the project including, but not limited to, the development, operation and reclamation of all pipelines (whether aboveground or belowground), roads, access corridors, foundation pads, equipment storage and staging areas, and all related facilities, will conform to accepted slope stability requirements and all Nevada Division of Environmental Protection (NDEP) best management practices (BMPs);
I. Weed Control. Applicant must provide a plan for weed control, specifically to hinder the spread of invasive and noninvasive species. The plan should account for activities during both construction and operation and may include mitigation activities such as wash stations for construction vehicles;
J. Lighting. Applicant must provide a plan showing lighting on and around the project and all related facilities including:
1. Lighting mitigation measures that follow “dark sky” lighting practices including but not limited to: all proposed lighting shall be located to avoid light pollution onto any adjacent lands as viewed from a distance; all lighting fixtures shall be hooded and shielded, faced downward, located within soffits and directed onto the pertinent site only, and away from adjacent parcels and areas;
2. The lighting plan should indicate the types of lighting and fixtures, the locations of fixtures, lumens of lighting, and the areas illuminated by the lighting plan; and
3. Any required FAA lighting should be consolidated and minimized whenever possible, so long as it still meets FAA requirements and intent;
K. Drainage and Erosion Control. Applicant must provide drainage and erosion control plan for construction and operation developed in consultation with Humboldt County. Any plan created or measures put in place to meet regulations pursuant to state oversight from the Nevada Department of Environmental Protection may be submitted to meet the requirements of this section;
L. Economic Mitigation Fee or Plan. The applicant must provide an economic mitigation plan if they have elected to develop one. For any out-of-county transfer projects over two-hundred-fifty-acre-feet annually, Humboldt County may impose a fee as authorized under NRS 533.438 for water leaving the county or work with the applicant to otherwise create a plan to mitigate the adverse economic effects caused by the transfer. Pursuant to NRS 533.4385, this plan may include, but is not limited to, reservation of designated water rights to the county of origin, and compensation for the foreseeable effects of the transfer;
M. Fire and Emergency Protection. Applicant must provide a plan developed in consultation with Humboldt County emergency management, fire department, and fire marshal, that addresses all activities at the proposed project site from the start of construction through operation, and includes a response plan to address all identified potential fire, rescue, evacuation and hazardous materials scenarios. Any plan created or measures put in place to meet regulations to state oversight from the Nevada Department of Environmental Protection and/or the State Fire Marshal may be submitted to meet the requirements of this section;
N. Revegetation Plan. Applicant must provide a revegetation plan for restoring areas temporarily disturbed during construction;
O. Closure, Removal, and Post-Closure. The applicant shall provide a post-closure site restoration plan to ensure the return of the subject property to the conditions existing prior to construction and establishment of the project. A copy of the post closure plan for the project required by any state or federal entity will satisfy this requirement. If no state or federal entity has required a post-closure plan, the applicant will develop such plan with Humboldt County, to be executed in an agreement upon permit approval. The post-closure plan shall, at minimum, include:
1. Removal of aboveground and underground equipment structures and foundations to a depth of at least three feet below grade;
2. Changing the place of use of the water back to the county of origin;
3. Restoration of the surface grade and soil and revegetation of restored soil areas with native seed mixes;
4. A schedule for completion of restoration work; and
5. A detailed cost estimate for site restoration in current-year dollars, including an explanation of the basis for the cost estimate and assumptions;
P. Bond for Assurance of Post-Closure Remediation. Unless required by a state or federal entity, the county may require the applicant to submit a bond or letter of credit in a form and amount satisfactory to Humboldt County as set by the board of county commissioners, assuring the availability of adequate funds to restore the site to a functional, nonhazardous condition, if the operator fails or is otherwise unable to restore the site as required by the permit;
Q. Bond for Assurance of Remediation of Impacts to County Roads. The county may require a separate bond to support necessary maintenance and repair on county roads if not completed by the applicant;
R. Monitoring, Management, Mitigation Plan. The applicant must submit a water resources monitoring, management and mitigation plan related to the water use at the point(s) of diversion in the basin of origin. The plan must establish baseline aquifer conditions of the groundwater basin and provide for scheduled monitoring of preexisting rights and protectable interests. The plan’s proposed management of the water resources may include scheduling adjustments to the timing and amount of withdrawal from the aquifer at all project points of diversion and under each water right of use. Mitigation measures may include the applicants plan to address any impact to or interference with preexisting rights as may be caused by the project. The county strongly encourages that any proposed mitigation measures be approved by the affected water user(s) and the county pursuant to the Humboldt County’s master plan, community source water protection plan, water plan, code and ordinances as a means to protect the health, safety, and welfare of the county. Any plan submitted pursuant to NRS 533.353 may be used, in part, to meet the requirements under this subsection; and
S. Baseline Environmental Review. Any environmental impact study or environmental analysis completed under NEPA can be used to meet the requirements under this subsection. If NEPA is not required, an analysis by an expert (as can be qualified pursuant to NRS Part 50) biologist or resource scientist as to whether the proposed project can be designed, constructed and operated without significant adverse impact to fish, wildlife and native plant resources, including fish and wildlife habitat, migratory routes and state or federally listed threatened or endangered fish, wildlife or plant species. (Ord. 12-14-20 § 1)
17.81.060 Conditional use permit maintenance.
Construction on the project shall commence within two years of approval. If the applicant is not able to initiate any stage or phase of construction within that period, an extension of time from the date of the original approval of the conditional use permit may be granted by the regional planning commission following a progress report presented at an open meeting of the regional planning commission. If the applicant has not commenced construction solely due to length or contingency on federal or state permitting process, the regional planning commission shall grant a time extension following presentation of the progress report. If an extension of time is approved, the application shall present annual progress reports to the regional planning commission, unless otherwise stated by the commission.
In the event that the use authorized by the conditional use permit is abandoned or modified for a period of more than two years from the date of last producing operations, the permit shall become null and void and a new conditional use permit shall be required. Notwithstanding anything to the contrary contained in this code, the term “abandonment,” as applied to project facilities, shall not be construed as applying to a facility with regular on-site employees, maintenance, and security, regardless of whether commercial production at the facility has temporarily lapsed.
In the event of a force majeure event, such as, but not limited to, a flood, damage or destruction of the access to the site by earthquake, or other circumstances beyond the control of the county or permit holder, the period of abandonment shall not be deemed to commence until such a time as the permit holder may be found to once again have reasonable access to the site. In this case, the permit holder shall reasonably attempt to establish access to the site.
The conditional use permit shall remain valid as long as the permit holder, its heirs, assigns, or successors remain in compliance with the terms of this permit and county, state and federal regulations.
In the event that the permit lapses or the use is discontinued or abandoned, the permit holder/owner, its heirs, assigns or successors shall remain responsible for environmental compliance until post-closure reclamation requirements are met. If the facility is not being abandoned, but is not in operation for greater than two years for a reason such as equipment failure, replacement, or maintenance, the project owner shall notify Humboldt County in writing indicating an estimated timeline for operations to recommence. (Ord. 12-14-20 § 1)