Natural ResourcesSession Review 2019

Session Review: Natural Resources

Measures restricting the use of eminent domain by renewable energy developers, extending an Omaha-area natural resources district’s bonding authority and merging the state agencies responsible for recommending energy policies and administering environmental regulations were among the bills advanced by the Natural Resources Committee this session.

Natural Resources Committee chairperson Sen. Dan Hughes

Renewable energy

As introduced by Gordon Sen. Tom Brewer, LB155 would have prohibited a private entity from using eminent domain to provide access to build transmission lines or other infrastructure related to a privately developed wind energy project.

Currently, state law authorizes the use of eminent domain in those situations and states that it is considered a public use.

The bill was amended to define the public use aspect of such exercise of eminent domain as a “rebuttable presumption”—meaning that it may be challenged in court by an impacted landowner.

Lawmakers passed LB155 on a 44-0 vote.

A bill that would require owners to remove a wind turbine’s concrete foundation after decommissioning stalled on first-round debate.

LB700, introduced by Brainard Sen. Bruce Bostelman, would make any person who owns, operates or manages a wind energy conversion system responsible for decommissioning or reclamation costs necessary for removal of the system.

A pending committee amendment would replace the bill. It would require a wind turbine owner who is a party to a wind agreement to provide every landowner who also is a party to that agreement with information about the materials and equipment that would be removed from, and that would remain on, the landowner’s property when a wind turbine is decommissioned.

The amendment would require every wind agreement executed on or after Jan. 1, 2020, to provide for the removal of a wind turbine’s foundation material and equipment below grade upon decommissioning. The requirement would not apply to a wind turbine that is used for repowering within 24 months after it would have been decommissioned.

Any void left from the removal of foundation material and equipment would be restored to the condition of the land prior to the installation of the turbine or to an improved condition.

The Legislature moved to the next item on its agenda before voting on the committee amendment or LB700. Per a practice implemented by Speaker Jim Scheer, the sponsor of a bill that is facing a potential filibuster must demonstrate sufficient support for a cloture motion before the measure will be scheduled for additional debate.

The bill remains on general file.

Natural resources districts

Currently, NRDs encompassing a city of the metropolitan class may issue bonds payable from a flood protection and water quality enhancement levy on the taxable value of property in the district. The levy may not exceed 1 cent per $100 of taxable valuation annually without voter approval.

Only the Papio-Missouri River NRD has that bonding authority, which was set to end Dec. 31, 2019. LB177, sponsored by Omaha Sen. Brett Lindstrom and passed on a vote of 35-8, extends the termination date to Dec. 31, 2024.

The committee did not advance a bill that would authorize NRDs to sell land originally acquired for a water augmentation project while retaining the right to use groundwater beneath that land.

Introduced by North Platte Sen. Mike Groene, LB606 would authorize each NRD to develop water augmentation projects for streamflow enhancement and to acquire real property for those projects. The governing NRD would be required to allocate the amount of groundwater that may be withdrawn for such a project.

After a project has been developed, its owner could sell the property and continue to pump the groundwater necessary for augmentation without regard to the land area or acres owned.

Other measures

LB302, introduced by Venango Sen. Dan Hughes on behalf of Gov. Pete Ricketts, transfers the statutory powers, employees and assets of the State Energy Office into the state Department of Environmental Quality on July 1, 2019. The new Department of Environment and Energy will be led by the current director of environmental quality.

The bill authorizes the new department to assume responsibility for a permit program related to the discharge of dredged or fill material consistent with section 404 of the federal Clean Water Act. The permits are required for any project that encounters “waters of the U.S.” as defined under the act. Federal law allows the program, which is administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency, to be delegated to states with approved programs.

LB302 passed on a 45-0 vote.

A change to state Department of Natural Resources rulemaking requirements also advanced from committee.

LB319, sponsored by Columbus Sen. Mike Moser and passed on a vote of 43-1, repeals a requirement that the department send county, city and village clerks notice of hearings regarding floodplain management rules and regulations via mail.

The bill also makes two changes to department rulemaking requirements. It makes optional the department’s adoption and promulgation of rules and regulations regarding the allocation and expenditure of money from the Water Resources Trust Fund, which holds state and federal funds used to pay for the management and protection of the state’s groundwater.

The bill also makes optional the department’s adoption of rules and regulations governing the matters over which it has jurisdiction—water rights for irrigation, power or other useful purposes.

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