Archives 2020

Legislature passes bill to allow directors to represent constituents on contract issues

A bill that would remove obstacles to better constituent representation by members of Central’s board of directors was passed by the Nebraska Legislature on Aug. 3 and signed into law by the governor.

Specifically, LB1055 would allow members of a public power and irrigation district’s board to represent the interests of their constituents when it comes to discussing and providing input on matters related to standard form water service agreements and lot leases at District-owned property near Johnson Lake and Lake McConaughy, if a board member also holds such an agreement with Central.

Sen. Matt Williams (Dist. 36, Gothenburg) introduced LB1136 which contained the necessary changes to the Accountability and Disclosure Act.

The bill was amended into LB1055, which was introduced by Sen. Tom Brewer (Dist. 43, Gordon), that changes provisions regarding elections and the Nebraska Political Accountability and Disclosure Act. Three other bills were also amended into LB1055 and the bill was designated as one of two priority bills by the Government, Military and Veterans Affairs Committee, of which Sen. Brewer is the chairman.

Central’s board members are now allowed to have an interest in a con-tract with the district. They will still be required to disclose a potential conflict of interest to the Accountability and Disclosure Commission and abstain from voting on the agreements in question.

Board members will, however, be free to discuss and provide input to their fellow board members about said agreements, thus allowing them to more properly represent constituents who elected them to the board.

The bill also repeals another section of law to eliminate the prohibition against a member of certain boards from having an interest in a con-tract with the governmental entity. This is an unusual provision rooted in events which took place more than 80 years ago during the formation and construction of public power and irrigation districts.

Finally, the bill eliminates the previous possibility that board members with lease agreements or water service agreements could be removed from the board if they are party to certain contracts.

Central and its constituents would like to thank Sens. Williams and Brewer for their efforts to secure passage of LB1055/LB1136 and members of the Legislature who voted in favor of the bill.

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Bill to Permit Board Members to Better Represent Constituents in 2020 Session

Sen. Matt Williams of Gothenburg (Dist. 36 of the Nebraska Legislature) introduced LB1136 during the 2020 Legislative session on behalf of The Central Nebraska Public Power and Irrigation District.

LB1136 is a bill to prescribe when an interest in a contract is prohibited and eliminate a prohibition against such interest by a public power and irrigation district board member.  More to the point, the bill will permit members of a public power and irrigation district’s board to represent the interests of their constituents when it comes to discussing and providing input on matters related to standard form water service agreements and lot leases at District-owned property near Johnson Lake and Lake McConaughy.

To better understand the bill’s intent, background on the issue is necessary.

About two years ago, during the process of discussing the terms of lot leases for homes/cabins at lakes owned by Central, an inquiry was made by a third party as to whether or not two members of Central’s board of directors who own homes at Johnson Lake could participate in discussions about the leases, and vote in favor of, or against, the final lease agreement.

The two members of the board with leases at the lake did participate in discussions about the lease proposal – after all, they were elected to their positions largely because of the fact that they owned homes at the lake and would faithfully represent their constituents’ best interests, as well as those of the District – but they abstained from voting on the final long-term lease.  As advised, they also sent letters to the Nebraska Accountability and Disclosure Commission (NADC) detailing their potential conflict of interest in the matter.

As the issue evolved, the ability of other members of the board who are irrigation customers to discuss and vote upon annual irrigation delivery rates was also called into question.  Central sought an advisory opinion from the NADC which concluded that board members “… who have present or prospective water service agreements with the District may not participate in discussions and voting on standard form water service agreements.”

Again, the members were elected by their constituents precisely because they are irrigation customers and, as such, understand the issues related to the District’s irrigation operations.  In short, they were elected to represent their constituents’ best interests.

The prohibition of voting on – or even discussing matters related to lot lease agreements or water service agreements — seems on its face to disenfranchise the very voters who elected the board members to their positions.  Further, constraints on the ability of individuals from voting on, or discussing, matters related to leases and/or water service agreements places an obstacle to attracting potential board members in the future.

Central understands the NADC’s position; its members followed the letter of the law to interpret the current statute.  However, Central does not believe the intent of the statute was to absolutely prohibit irrigation customers or lease holders from serving on Central’s board, or discussing and voting upon standard form agreements.  Indeed, Central has for almost 80 years had board members who were irrigation customers and, since the more recent implementation of lake lot leases, board members who are cabin-owners at District lakes.  Their ability to bring that knowledge and perspective to the board has proven invaluable over the years in discussions that pertain to those leases and/or water service agreements.

The bill would have the following effects:

First, the bill amends a section in the Nebraska Accountability and Disclosure Act so that it also applies to entities formed under Chapter 70, which contains statutes related to the formation and operation of public power utilities.  Members of Central’s board could have an interest in a contract with the district.  They would still be required to disclose a potential conflict of interest to the NADC and abstain from voting on the agreements in question.  They would, however, be free to discuss and provide input to their fellow board members about said agreements, thus allowing them to more properly represent constituents who elected them to the board.

Second, the bill repeals a portion of statute to eliminate the prohibition against a member of certain boards from having an interest in a contract with the governmental entity.  This is an unusual provision rooted in events which took place more than 80 years ago.  It would also eliminate the current possibility that board members with lease agreements or water service agreements could be removed from the board.

The bill will have no effect on irrigation districts formed under Chapter 46 where, in most cases, only those individuals who are irrigation customers and/or landowners are able to vote for candidates for boards of directors or serve on those irrigation districts’ board of directors.

LB1136 had the support of the NADC at the bill’s hearing in February.  Greg Heiden and DeDe Peterson, representing irrigation customers and cabin-owner, respectively, also testified in support of the bill, which was unanimously voted out of committee for floor debate.  It was subsequently amended into LB1055 as part of a package of bills prioritized by the Government, Military and Veterans Affairs Committee.  LB1055 was placed on select file without opposition on March 9 and was scheduled for advancement to final reading when the Legislature took an extended recess on March 16 because of COVID-19 virus concerns.  The bill’s priority status will, hopefully, lead to its appearance on the Legislature’s agenda when the Unicameral reconvenes on July 20.

Central extends its thanks to Sen. Williams for sponsoring the bill and to Sen. Brewer and his committee for including it in a package of bills with a priority designation.

 

Extension of Platte River Program Good News for Nebraska

The news last week that the Secretary of the Interior had signed an amendment to extend the Platte River Recovery Implementation Program Cooperative Agreement through Dec. 31, 2032 made for a great end to 2019 and a good start to the New Year.

The House of Representatives and the Senate passed legislation to extend the Program on Dec. 19 and it was signed by President Trump on Dec. 20.  Secretary of the Interior David Bernhardt’s signature on the amendment officially committed federal resources to the Program in which the states of Nebraska, Colorado and Wyoming are partnering with the federal government to support and protect habitat for four threatened and endangered species (the whooping crane, piping plover, interior least tern and pallid sturgeon) along the Platte River.

In remarks after the signing, the governors and Congressional delegations from all three states hailed the partnership and the progress the Platte River Program has made over the past 13 years.  The Program provides for Endangered Species Act compliance for new and existing water-related projects in the Platte River Basin, including those operated by The Central Nebraska Public Power and Irrigation District, the Nebraska Public Power District, and federal projects in Colorado and Wyoming, as well as a myriad of other water projects (basically any project or activity with an established a federal nexus that might include diversions from the river or pumping groundwater that is hydrologically connected to the river).

The Program began in 2007, but the path to its implementation can be traced even further back to the early 1990s and efforts by Central to secure a renewed license from the Federal Energy Regulatory Commission (FERC) to operate their hydroelectric facilities.

The FERC issued its first Draft Environmental Impact Statement related to project operations in early 1992, but the Environmental Protection Agency recommended that a new DEIS be prepared because the original document failed to “adequately assess the potentially significant environmental effect, nor does it identify and analyze all reasonable alternatives.”

Subsequently, Nebraska parties to the relicensing process, with the leadership of Governor Ben Nelson, developed a relicensing plan centered around a “block-of-water” concept or “environmental account.”  This plan would replace the rigid river flow proposals in the FERC’s DEIS with a more flexible plan which would set aside a block of water in Lake McConaughy for wildlife habitat purposes.  An environmental account manager (originally the Nebraska Game and Parks Commission, but later designated to be a representative of the U.S. Fish and Wildlife Service) would determine when and how much water to release from the environmental account for wildlife purposes.

Governor Nelson’s suggestion became known as the “Nebraska Plan;” it was endorsed by several entities, including the Nebraska Water Users, the Big Mac Sportsmen’s Club and NPPD.

In March 1994, the FERC released its revised DEIS concluding that a modified Nebraska Plan “offers the best overall balance among the resource values, while providing adequate protection for threatened and endangered species.”  However, Central and other Nebraska parties were deeply concerned by the costs associated with mitigation and enhancements required by the revised DEIS, as well as the fact that Nebraska would bear a disproportionate responsibility for mitigating depletions to stream flows.

In June 1994, Nebraska, Wyoming and Colorado entered into a Memorandum of Agreement with the U.S. Department of the Interior to develop a basin-wide solution that included sharing responsibility for protecting endangered species along the Platte River.

In late 1996, the USFWS issued a draft biological opinion of the FERC’s biological assessment that found jeopardy for endangered species; the agency recommended two “reasonable and prudent” alternatives for resolving ESA issues.  One alternative gave consideration to an agreement between the three states and Interior.  The other would have forced Nebraska’s power districts to shoulder a disproportionately large share of the burden for providing water and habitat for endangered species.

A year later, the states and Interior reached an agreement on a basin-wide plan for endangered species.  A Cooperative Agreement that laid out the approach to providing money, land and water to meet endangered species’ habitat needs was subsequently signed in July.

In January 1998, the parties involved in negotiations over federal license conditions announced that a settlement had had been reached that covered all fish and wildlife-related issues connected with the relicensing of the hydroelectric facilities.  The Cooperative Agreement between the three states and the federal government was an important part of the settlement reached by Central, NPPD, the Whooping Crane Trust, National Audubon Society, Nebraska Water Users, the states of Colorado and Wyoming and the U.S. Department of the Interior.

The FERC approved the relicensing settlement agreement in July 1998 and issued a new 40-year license to Central and NPPD.  The settlement was an important part of comprehensive water resource management and endangered species habitat protection in the Platte River basin.  The new license is part of an integrated approach to managing water in the Platte basin that provides regulatory certainty and allows adaptive management in response to new information about issues involved in the relicensing and water resources management process.

The FWS and Bureau released a final draft environmental impact statement (FEIS) in May 2006 and a month later the FWS’ biological opinion stated that the Program would not cause jeopardy to the target species.  The opinion cleared the way to begin implementation of the Program in on Jan. 1, 2007 after governors of the three states signed documents committing their respective states to the Program.

The Platte River Program has made significant strides toward its goal of learning about the most effective methods of protecting and enhancing habitat for the affected species over the past 13 years, including objectives related to providing land and water and the use of an adaptive management approach to implement and evaluate the effects of measures designed to improve riverine habitat.  The extension to the original agreement provides the time and resources for the Program to reach its goals, while allowing the three states and the Department of the Interior to avoid lengthy and expensive litigation over Endangered Species Act issues.

Central and its stakeholders are grateful to all of the individuals and organizations who have made the Program extension possible and look forward to continuing the highly successful partnerships with the many entities involved in the Program.


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