Archives August 2019

Much was written and spoken about what the Nebraska Legislature did and did not accomplish during the 2019 session, which adjourned on May 31.

Tax reform and efforts to substantially lower property taxes were at the top of the list of “things to do” next session, as efforts in the Legislature to reach agreement came up short.  Legislation to enact new business tax incentives (to replace the Nebraska Advantage Act, which expires at the end of 2020) became entangled with property tax relief last session and a solution that would satisfy enough senators for either to pass proved elusive.

However, it’s not my intent to add to the debate over taxes or business incentives; instead I’ll use this space to discuss a number of bills pertaining to water and natural resources that were either passed with little fanfare, or (appropriately and thankfully, in our opinion) failed to advance.

The bills were not as controversial, but the lack of controversy does not diminish their importance to those who will be –or won’t be – affected.

LB48, introduced by Sen. John Stinner of Scottsbluff, changes provisions related to a finding of sufficient cause for non-use of a water appropriation.  The new statute, which passed final reading 43-0 and was signed into law by Gov. Ricketts, allows contracts under any crop reserve program to be extended to 30 years by providing for sufficient cause for nonuse of water rights.  In other words, acres enrolled in such federal, state or Natural Resources District programs can maintain their water right without threat of cancellation for non-use.

For instance, the federal Conservation Reserve Enhancement Program (CREP) is designed to reduce the amount of water consumption from irrigation activity as well as the introduction of agricultural chemicals and sediment entering the waters of the state from agricultural lands and transportation corridors.  Enrollees in CREP are protected from losing their water appropriations for a longer period than was provided under current state law.

LB294 and LB298 were both budget bills; both contained provisions that were in the governor’s original proposal that the Legislature left intact.  After a few years of seeing reductions in the mainline budget bill, the Water Sustainability Fund contained within LB294 will receive its full allotment of $11 million during the next biennium, enabling the Natural Resources Committee and the Department of Natural Resources (DNR) to continue to build upon the successes they’ve had with various projects intended to enhance the state’s ability to achieve sustainability of our water resources.

And in LB298, the ability for DNR to receive grants from the Nebraska Environmental Trust Fund was continued, which is an important component of DNR’s efforts to fund water projects in the state.

LB302, introduced by Sen. Dan Hughes of Venango, proposed to merge the State Energy Office with the Department of Environmental Quality and rename the agency the Department of Environment and Energy.  The bill passed final reading on a 45-0 vote and was signed with an emergency clause (meaning it takes effect immediately) by Gov. Ricketts.

Mostly intended as an efficiency measure, one important aspect of the merger, at least to those in the water resources field, was authorization the agency to assume responsibility for the “dredge-and-fill” permitting process, pending agreement between the federal government and the state.  This development has the potential to speed the permitting process and allow projects to proceed more quickly without sacrificing environmental quality.

A couple bills that failed to advance from their respective committees included LB368, which would have legislatively eliminated the “over-appropriated” designation of river basins, sub-basins and reaches and require the DNR to manage dams in Nebraska as flood control structures, effectively preventing them from filling past 80 percent before a certain date.

Sen. Hughes, in his opening at the hearing on the bill, explained that he introduced the bill to provide the Natural Resources Committee, of which he is chairman, with information about why water is managed as it is today and to help the committee members better understand what the fully and over-appropriated designation means.  He also intended the bill to serve as an opportunity for education, background and context to discussion of water legislation.

He closed his testimony by saying that the hearing was a “… good exercise for the committee to understand the challenges that we have in Nebraska, but there’s been a lot of work in this committee before we ever got here.  Any changes that (the Legislature) makes in water policy should be taken very slowly, very deliberately, and very cautiously.”

And last, LB655 was introduced by Sen. Justin Wayne to change provisions of Nebraska’s fencing laws.  The bill, which received little or no support in the Agriculture Committee hearing, would have turned the state’s fencing statutes upside down by eliminating the practice of sharing financial responsibility for construction and maintenance of division fences currently found in statute.

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