Extension of Platte River Program Good News for Nebraska

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.

Jeff Buettner

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