Update: Nebraska Legislators Push Forward with Key Bills

We continue to monitor legislative activity in the Nebraska Unicameral this session. Below is an update on legislative bills of interest that could impact environmental permitting, cannabis, water projects, and drainage.

The Second Regular Session of the 107th Nebraska Legislature convened on January 5, 2022. Legislators introduced bills through January 20, 2022, and could prioritize bills through February 22, 2022. The Legislature has until April 20, 2022 to hold hearings and to debate and cast votes.

Last month, we provided a summary and chart of all bills introduced this session that relate to agricultural, energy, environmental, and natural-resources law. This update follows up on those bills to discuss if and how they have progressed toward becoming law. Please contact Vanessa Silke, a registered lobbyist, to discuss any questions.

 

Agriculture

LB 889 (Introduced by Senator Halloran) proposes to update and amend the Nebraska Hemp Farming Act. Section 2-503 defines hemp as a cannabis plant having less than a 0.3% concentration of tetrahydrocannabinol on a dry-weight basis. Section 2-514 permits the Department of Agriculture to destroy any cannabis exceeding that threshold. Among other things, this bill would relax that procedure to give the Department discretion to allow a producer to remediate and retest a crop before destroying it.

The Agricultural Committee held a hearing on this bill on January 25, 2022. The Committee then moved this bill to the General File on February 10, 2022.

LB 925 (Introduced by Senator Gragert) proposes to adopt the Resilient Soils and Water Quality Act. Under this bill, the Department of Natural Resources would assist agricultural producers and landowners in forming a statewide “producer learning community.”  Natural resources districts and university extension offices could also partner with these communities. A duly formed community could apply for gifts, grants, and sponsorships to aid in soil conservation throughout the state. The Legislature would also appropriate $250,000 over the next five years for soil conservation.

The Natural Resources Committee held a hearing on this bill on January 26, 2022. The Committee moved the bill to the General File with Senator Gragert’s priority designation. As amended, this bill would only require the Department to file annual reports through 2027. After that point, such obligation would cease.  Floor debate on this bill began on February 24, 2022.

LB 1275 (Introduced by Former Senator Groene; Co-introduced by Senator Wishart) proposes to adopt the Medicinal Cannabis Act. The Act would legalize some possession and use of cannabis for medicinal purposes. A qualified patient under the Act could possess any amount of cannabis containing no more than a gram and a 15% concentration of delta-9 tetrahydrocannabinol. But a patient could only possess up to 2.5 ounces of cannabis containing more than that concentration of delta-9 tetrahydrocannabinol.

To administer these provisions, the Act would create the Cannabis Enforcement Department. Overseen by a Medicinal Cannabis Board of appointed representatives, the Department could register up to five dispensaries in each congressional district. In total that could amount to 15 dispensaries in Nebraska. Dispensaries would apply in a competitive process and remain subject to various restrictions.

Because the Act would not permit any cannabis to be grown in Nebraska, some supporters of medicinal cannabis have expressed opposition to LB 1275 in its current form. They instead support one or more of the four Nebraska ballot initiatives that are currently in circulation. Senator Wishart, who became this bill’s co-introducer following Senator Groene’s resignation, is a sponsor of three of those ballot initiatives.

The Judiciary Committee held a hearing on this bill on February 23, 2022.

 

Energy

LB 775 (Introduced by Senator Brewer) proposes to amend the Integrated Solid Waste Management Act to prohibit the land disposal of wind turbine blades and their component parts.

The Natural Resources Committee held a hearing on this bill on January 19, 2022.

LB 801 (Introduced by Senator Hughes) proposes to amend the ImagiNE Nebraska Act to include, among the definition of qualified location, a place where the capture, transport, and geologic storage of carbon dioxide occurs.

The Revenue Committee held a hearing on this bill on February 2, 2022.

LB 1045 (Introduced by Senator Bostelman) proposes to amend the qualifications for a person to serve on a public power and irrigation district’s board of directors. Against a general rule that no employee of such a district may serve on its board of directors, Neb. Rev. Stat. section 70-618(2) presently provides an exception for high level managers in limited circumstances, such as when a director has resigned or taken unpaid leave. This bill would remove that exception, meaning that no district employees, including high level managers, could serve on the board of directors.

The Natural Resources Committee held a hearing on this bill on February 2, 2022.  The Committee subsequently selected LB 1045 as a priority bill.

LB 1046 (Introduced by Senator Bostelman) proposes to amend the election procedure for certain public power districts’ boards of directors. Beginning in 2024, this bill would require districts to divide their territories into four equal subdivisions. Each subdivision would then elect a board member. Those elected board members would serve alongside five members at large, appointed by the Governor. The nine board members, in total, would serve staggered six-year terms. Under this bill, the Governor would also appoint a chief executive officer for each district.

The Natural Resources Committee held a hearing on this bill on January 27, 2022.

LB 1047 (Introduced by Senator Bostelman) proposes to strengthen the Power Review Board’s energy forecasting requirement. This bill would require that the Board include, in its biennial report, a 20-year forecast for both summer and winter peak load conditions. In addition, this bill would require any firm electric generation plant that lacks the capability to store a 45-day supply of fuel on site to identify how it plans to obtain such fuel during load periods.

The Natural Resources Committee held a hearing on this bill on January 27, 2022.

LB 1048 (Introduced by Senator Blood) proposes to appropriate $10 million to the University of Nebraska Medical Center to study ethanol’s health effects. The money under this bill would come from the federal American Rescue Plan of 2021. It would go toward evaluating the environmental, ecological, and human health effects of ethanol production and storage.

The Appropriations Committee will hold a hearing on this bill on March 3, 2022.

LB 1099 (Introduced by Bostelman) proposes to create the Hydrogen Hub Industry Work Group. The Director of Economic Development would appoint members from the manufacturing or industry, agriculture, transportation, and energy industries. The Work Group then would apply to the U.S. Department of Energy for designation as one of the four regional clean-hydrogen hubs authorized under the federal Infrastructure Investment and Jobs Act.

The Natural Resources Committee held a hearing on this bill on February 9, 2022. Senator Bostelman selected LB 1099 as a priority bill, and the bill moved to the General File with amendments. The amendments remove the effective date and allow the Governor, rather than the Director of Economic Development, to select the members of the working group. The amendments also remove the requirement that members of the working group represent the manufacturing, agriculture, transportation, and energy industries. Finally, the amendments remove the Group’s ability to receive money from the General Fund.

LB 1100 (Introduced by Senator Bostelman) proposes to appropriate $1 million to the Department of Economic Development to study nuclear energy. The money would come from the federal American Rescue Plan Act of 2021. It would go toward studying the feasibility of more nuclear energy in Nebraska. Only a political subdivision that already owned or operated a nuclear plant in Nebraska could use the money.

The Appropriations Committee held a hearing on this bill on February 16, 2022.

 

Environmental

LR 159 (Introduced by Senator Blood) proposes for the Executive Board to appoint a special committee of the Legislative Council to investigate the family of AltEn, LLC, companies. According to this resolution, those companies have unlawfully polluted sites in and around Mead, Nebraska, with over 100,000 tons of contaminated distillers grain.  This resolution further alleges that those companies have so far refused to engage in remediating their pollution. This resolution would direct a special committee to investigate those companies and recommend a path forward.

The Executive Board held a hearing on this bill on February 24, 2022.

LB 978 (Introduced by Senator Hughes) would continue Nebraska’s effort to give the Department of Environment and Energy primary dredge-and-fill permitting authority under section 404 of the Clean Water Act, which governs “waters of the United States.” For more on that term, see our previous newsletters here and here. To date, only three states—Michigan, New Jersey, and Florida—have assumed control of the Section 404 program. The U.S. Army Corps of Engineers retains permitting authority in the rest of the country, including in Nebraska.

The Natural Resources Committee held a hearing on this bill on January 26, 2022.

LB 1102 (Introduced by Senator Bostelman) proposes to adopt the Environmental Response Act. Under the Act, the Department of Environment and Energy would receive funding and authorization to clean up releases of pollutants in the state. The Department could also elect to issue orders requiring any persons responsible for the release to clean it up. In many respects, this Act would resemble the federal Comprehensive Environmental Response, Compensation, and Liability Act.

The Natural Resources Committee held a hearing on this bill on February 3, 2022. Following the hearing, Speaker Hilgers selected LB 1102 as a priority bill, and it moved to the General file with amendments. As amended, the bill would conform more closely with federal law, and it would direct the State Treasurer to transfer $300,000 from the General Fund to the Nebraska Environmental Response Fund by June 30, 2023.

LB 1186 (Introduced by Senator Bostar) proposes to amend the Oil Pipeline Reclamation Act and change its name to the Hazardous Liquid Pipeline Reclamation Act. This bill would provide for mandatory reclamation of all abandoned pipelines. Within 30 days after a pipeline’s abandonment, the pipeline carrier would need to provide all landowners along the pipeline’s path with a list of independent engineers qualified to advise on reclamation options. Those landowners could then choose from the options and require the pipeline operator to pay for such reclamation. If the pipeline carrier failed to pay, the landowner could undertake reclamation and cause the pipeline carrier’s right of way to revert back to the landowner. The Department of Environment and Energy would have authority to promulgate rules and administer funds in accordance with these provisions.

The Natural Resources Committee held a hearing on this bill on February 16, 2022.

 

Natural Resources

LB 806 (Introduced by Senator Bostelman) proposes to limit liability protections for landowners who drain diffused surface water, such as rainfall or snow melt, from their property. Currently, Neb. Rev. Stat. section 31-201 protects landowners from liability if they dam, divert, or otherwise repel such water without negligence and without causing the water to concentrate in volume and velocity before it reaches a neighbor’s property. This bill would limit that protection by imposing liability for drainage that causes injury to another’s property.

The Natural Resources Committee held a hearing on this bill on January 28, 2022 and moved the bill to the General File with amendments. As amended, the bill would only limit protections for landowners who cause harm to others by draining their land via a pump or powered system.

LB 1015 (Introduced by Speaker Hilgers) would adopt the Perkins County Canal Project Act. The Act would direct the Department of Natural Resources to develop and operate a canal in Perkins County consistent with the South Platte River Compact. Signed in 1923 and ratified by Congress in 1926, the Compact allocates the South Platte River’s water between Colorado and Nebraska. The Compact also authorizes Nebraska to construct a canal beginning near Ovid, Colorado.

The Natural Resources Committee held a hearing on this bill on February 9, 2022. Following the hearing, Senator Hughes selected LB 1015 as a priority bill.

LB 1023 (Introduced by Speaker Hilgers) would adopt the Lake Development Act and the Water Recreation Enhancement Act. The Lake Development Act would direct the Department to develop a 3,600-acre lake in Sarpy County, between Lincoln and Omaha. Under this bill, the lake could not cause flooding to any existing towns and could not utilize a dam.

Similarly, the Water Recreation Enhancement Act would authorize the Game and Parks Commission to develop marinas at Lake McConaughy State Recreation Area and Lewis and Clark State Recreation Area. The Commission would also have authority to construct an event center and lodge at Niobrara State Park. The purpose of these projects is to expand tourism.

The Natural Resources Committee held a hearing on this bill on February 10, 2022. Senator McDonnell selected LB 1023 as a priority bill.

 

All of these bills are also available on the Nebraska Legislature’s website. Please do not hesitate to contact us if you have questions about these bills or any others. Thank you.