Nebraska Legislature to Debate Dozens of Bills Impacting Environmental Permitting, Cannabis, Water Projects and Drainage

The Second Regular Session of the 107th Nebraska Legislature convened on January 5, 2022. It will conclude on April 20, 2022. The Legislature introduced bills through January 20, 2022.

Below are summaries of the introduced bills that relate to agricultural, energy, environmental, and natural-resources law. Please contact Vanesa Silke, a registered lobbyist, to discuss any questions.

Clean Water Act Permitting Authority

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 the term “waters of the United States,” 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. The Legislature has referred this bill to the Natural Resources Committee.

Water Projects

LB 1015 and LB 1023 (Introduced by Speaker Hilgers) would establish five water projects located throughout the state. First, LB 1015 would adopt the Perkins County Canal Project Act, authorizing 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, that Compact allocates the South Platte River’s water between Colorado and Nebraska.

Next, LB 1023 would adopt the Lake Development Act and the Water Recreation Enhancement Act. The Lake Development Act would authorize 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.

Also under LB 1023, 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 Legislature has referred both of these bills to the Natural Resources Committee.

Environmental Response Act

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 Legislature has referred this bill to the Natural Resources Committee.

Medicinal Cannabis Act

LB 1275 (Introduced by Senator Groene) proposes to adopt the Medicinal Cannabis Act. The Act would legalize the 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. The Act would not allow cannabis to be grown in Nebraska.

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. Dispensaries would apply in a competitive process and remain subject to various restrictions.

Four similar ballot initiatives are underway in Nebraska. Three would legalize and regulate cannabis for medicinal purposes, and one would legalize it for recreational purposes. Supporters of those initiatives, however, have expressed opposition to LB 1275 in its current form. The Legislature has referred this bill to the Judiciary Committee.

Other Agricultural, Energy, Environmental, and Natural-Resources Bills

LB 712 (Introduced by Senator Hughes) proposes to amend the Black-Tailed Prairie Dog Management Act. Under section 23-3804, landowners in a county that has adopted a black-tailed prairie dog management plan must prevent prairie-dog colonies from expanding onto neighbors’ land. This bill would allow neighbors to waive that requirement. The Legislature has referred this bill to the Agriculture Committee.

LB 722 (Introduced by Senator Hilkemann) proposes to appropriate $400,000 from the Lead-Based Paint Hazard Control Cash Fund and additionally to transfer $400,000 from the Affordable Housing Trust Fund into the Lead-Based Paint Hazard Control Cash Fund. The Lead-Based Paint Hazard Control Cash Fund is administered in accordance with section 81-1211. The Legislature has referred this bill to the Appropriations Committee.

LB 746 (Introduced by Senator Friesen) proposes to remove the requirement that the Director of the Department of Natural Resources be a professional engineer. Versions of this bill have been introduced many times in past sessions in an effort to expand the pool of potential candidates for the Director role. The Legislature has referred this bill to the Natural Resources Committee.

LB 761 (Introduced by Senator Dorn) proposes to adopt the Precision Agriculture Infrastructure Grant Act. This act would create a $10 million grant program administered by the Department of Economic Development. Agricultural producers, agricultural cooperatives, agronomists, and internet service providers could all apply for grant funding from this program to expand access to high-speed internet and web-based tools for on-farm use. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

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 Legislature has referred this bill to the Natural Resources Committee.

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 Legislature has referred this bill to the Revenue Committee.

LB 804 (Introduced by Senator Hughes) proposes to increase the annual limits on compensation to the Nebraska Power Review Board’s members from $20,000 to $35,000. For board members’ Southwest Power Pool activities, this bill would also raise aggregate pay to $40,000. The Legislature has referred this bill to the Natural Resources Committee.

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, 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 Legislature has referred this bill to the Natural Resources Committee.

LB 809 (Introduced by Senator Moser) proposes to relax certain limits on the use of federal funds distributed by the state via the Safe Drinking Water Act. Sections 71-5318 and 71-5322 presently limit how the Department of Energy and Environment may administer those funds. This bill would allow the funds to go, as grants or loan forgiveness for up to 75% of a project’s cost, toward buying or refinancing a municipality’s debt obligation for a public water supply system. The Legislature has referred this bill to the Natural Resources Committee.

LB 837 (Introduced by Senator Hunt) proposes to require the Department of Environment and Energy to notify members of the Legislature about its conservation efforts. Under this bill, whenever the Department certifies that the Nebraska Energy Code complies with federal standards as required by the federal Conservation and Production Act, it would need to transmit a copy of such certification to the Urban Affairs Committee. The Legislature has referred this bill to the Urban Affairs Committee.

LB 848 (Introduced by Senator Halloran) proposes to amend the Animal Health and Disease Control Act to allow the use of funds, when available, for the disposal of livestock remains during catastrophic events. The Legislature has referred this bill to the Agriculture Committee.

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 restest a crop before destroying it. The Legislature has referred this bill to the Agriculture Committee.

LB 924 (Introduced by Senator Brewer) proposes to amend the Waste Reduction and Recycling Incentive Act to include cities of the first class as eligible grant recipients. Presently, only cities of the second class, villages, and counties of five thousand or fewer population may receive such funds for the deconstruction of abandoned buildings. The Legislature has referred this bill to the Natural Resources Committee.

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 Legislature has referred this bill to the Natural Resources Committee.

LB 953 (Introduced by Senator J. Cavanaugh) proposes to amend the statutes regulating land-management burns. This bill would shield persons from liability caused by such burns. Except in cases of willful misconduct or gross negligence, a duly permitted landowner or tenant burning his or her land for land-management purposes would have no liability for causing harm to a neighbor. Moreover, a local fire official would have no liability for issuing such a permit. The Legislature has referred this bill to the Judiciary Committee.

LB 969 (Introduced by Senator Dorn) proposes to appropriate $10 million to the Department of Environment and Energy to award grants for electric infrastructure projects. Entities eligible for this money would include public power districts, public power and irrigation districts, municipalities, cooperatives, and other governmental entities. Depending on the strength of the grant application, each entity could use up to $2 million. Entities using the money to withstand electrical disruptions and to install advanced metering infrastructure would have priority for these grants. The Legislature has referred this bill to the Appropriations Committee.

LB 970 (Introduced by Senator Halloran) proposes to appropriate $7 million to the Department of Agriculture. The funds would go toward planning and assisting the disposal of livestock remains during catastrophic events. The Legislature has referred this bill to the Appropriations Committee.

LB 981 (Introduced by Senator Hilkemann) proposes to revive the Trail Development Assistance Act. Under that Act, the Game and Parks Commission would administer $750,000 annually to purchase, develop, and maintain recreational trails, particularly those on retired rail lines. Toward that purpose, this bill would appropriate $15 million from the General Fund. The Legislature has referred this bill to the Natural Resources Committee.

LB 1002 (Introduced by Senator McDonnell) proposes to appropriate $2 million to the Department of Health and Human Services for energy assistance in low-income housing. The money would come from the federal American Rescue Plan Act of 2021. Metropolitan utilities districts and public power districts could split the money evenly, applying it toward the heating and cooling costs of households eligible for low-income home-energy assistance. The Legislature has referred this bill to the Appropriations Committee.

LB 1008 (Introduced by Senator Albrecht) proposes to prohibit any county, city, or village from enacting a law that has the effect of prohibiting any electric, natural gas, propane, or other public utility providing energy in its jurisdiction. The Legislature has referred this bill to the Government, Military, and Veterans Affairs Committee.

LB 1021 (Introduced by Senator Friesen) proposes to revise the Public Service Commission’s duties with respect to telecommunication companies. Under the bill, the Commission could subject such telecommunication companies to rules and regulation concerning affordability. The bill would also clarify that such rules may apply equally to telecommunication companies’ broadband services. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

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 Legislature has referred this bill to the Natural Resources Committee.

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 those districts to divide their territories into four equal subdivisions. Each subdivision would then elect one board member. They would serve alongside five members at large, appointed by the Governor. These 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 Legislature has referred this bill to the Natural Resources Committee.

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 Legislature has referred this bill to the Natural Resources Committee.

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 comes 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 Legislature has referred this bill to the Appropriations Committee.

LB 1056 (Introduced by Senator Brewer) proposes to specify that county board of commissioners may regulate and restrict industrial wind turbines, as well as other structures, such as tents, cabins, and house trailers. The Legislature has referred this bill to the Government, Military, and Veterans Affairs Committee.

LB 1058 (Introduced by Senator Brewer) proposes to require any public power supplier that retires, permanently shuts down, or substantial alters or reduces the base load capacity of a base load unit before the end of its contract life to pay a severance to permanent employee who terminated because of such action. The bill would also require such supplier to make payments in lieu of taxes to the political subdivisions who would have received tax money from the project for either a period of 10 years or a total of $50,000,000, whichever is greater. The Legislature has referred this bill to the Natural Resources Committee.

LB 1074 (Introduced by Senator Bostelman) proposes to appropriate $50 million to the Department of Natural Resources to administer a Surface Water Irrigation Infrastructure Fund. Irrigation districts could apply for the money and use it to repair or construct head gates, flumes, diversion structures, check valves, and other related physical structures. Each successful applicant would need to provide matching funds equal to 10% of the grant amount. No irrigation district could receive more than $5 million. The Legislature has referred this bill to the Appropriations Committee.

LB 1081 (Introduced by Senator Bostar) proposes to appropriate $200 million to the Department of Natural Resources for water-supply projects. The money would come from the federal American Rescue Plan Act of 2021, and the Department could use it to award grants to municipalities to design, construct, and implement water supply projects. Only municipalities utilizing at least 30 million gallons per day would qualify. The Legislature has referred this bill to the Natural Resources Committee.

LB 1082 (Introduced by Senator Gragert) proposes to require the Game and Parks Commission to include information relating to organ and tissue donation on applications for certain hunting and fishing permits. The Legislature has referred this bill to the Natural Resources Committee.

LR 277 (Introduced by Senator Blood) proposes to designate a special committee of the Legislature to study the population decline of pollinators, such as bees, butterflies, moths, and bats, and determine how to protect them. In addition, the special committee would analyze whether neonicotinoids have affected those pollinators’ declines. The Legislature has referred this resolution to the Executive Board.

LB 1095 (Introduced by Senator Halloran) proposes to amend certain provisions in the Animal Health and Disease Control Act. This bill would direct the Department of Agriculture to cooperate with the U.S. Department of Agriculture to trace animal diseases. The Legislature has referred this bill to the Agriculture Committee.

LB 1098 (Introduced by Senator Halloran) proposes to amend certain duties of the State Fire Marshal. Among other things, this bill would require the Marshal to develop a model permit listing the minimum requirements to conduct open burning. The Legislature has referred this bill to the Business and Labor Committee.

LB 1099 (Introduced by Senator Bostelman) proposes to create the Hydrogen Hub Industry Work Group. The Director of Economic Develop 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 Legislature has referred this bill to the Natural Resources Committee.

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 owns or operates a nuclear plant in Nebraska could use the money. The Legislature has referred this bill to the Appropriations Committee.

LB 1101 (Introduced by Senator Bostelman) proposes to limit the Public Service Commission’s discretion in awarding funds from the Nebraska Telecommunications Universal Service Fund. Neb. Rev. Stat. section 86-330 presently gives the Commission discretion in determining whether to withhold funds due to an internet service provider’s failure to serve underserved areas. This bill would mandate the withholding of those funds. It would also require the Commission to consider certain factors in considering whether to open a docket based on such internet service provider’s failure to serve. Under this bill, if more than 10% of active subscribers in an area receive less than 25 megabits per second of internet speed, there would be a rebuttable presumption of underservice. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1103 (Introduced by Senator Brandt) proposes to amend provisions in the Beginning Farmer Tax Credit Act. Under this bill, a qualified beginning farmer’s or livestock producer’s net worth would not take account of a pension, retirement, or other type of deferred benefit account. The Legislature has referred this bill to the Revenue Committee.

LB 1144 (Introduced by Senator Friesen) proposes to amend certain conditions on how the Public Service Commission distributes grants to telecommunications and broadband companies. Among other things, this bill would establish a preference for telecommunications and broadband projects located outside of high-cost areas. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1149 (Introduced by Senator Friesen) proposes to change the vehicle-registration fee for alternative fuel-powered motor vehicles. Under this bill, that fee would rise incrementally from $75 in 2022 to $150 in 2027 and subsequent years. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1153 (Introduced by Senator McCollister) proposes to increase the membership of electricians on the State Electrical Board. Under this bill, the number of journeyman electricians would increase from one to two, and the number of electrical contractors or master electricians would also go from one to two. One of each would also need to hold an affiliation with a nonprofit labor organization for electrical workers. The Legislature has referred this bill to the Government, Military, and Veterans Affairs Committee.

LB 1160 (Introduced by Senator Wishart) proposes to appropriate $10 million to the Department of Environment and Energy to assist in developing water technology. The money would come from the federal American Rescue Plan of 2021. Small and rural communities could apply for grants to install reverse osmosis systems in community water systems and private wells where nitrate levels exceeded 10 parts per million of nitrate. The Legislature has referred this bill to the Appropriations Committee.

LB 1185 (Introduced by Senator Morfeld) proposes to limit the authority of electric cooperative corporations to act. Under this bill, such corporations could only engage in the sale of electricity to end users. Any organization or corporation not so engaged would lose its authority granted in the Electric Cooperative Corporation Act. The Legislature has referred this bill to the Natural Resources Committee.

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 such 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 Legislature has referred this bill to the Natural Resources Committee.

LB 1191 (Introduced by Senator Brewer) proposes to appropriate federal dollars from the American Rescue Plan Act of 2021 to the Commission on Indian Affairs. The money would go toward improving tribal-owned community drinking water and sewer systems. This bill does not yet state how much money it would entail. The Legislature has referred this bill to the Appropriations Committee.

LB 1196 (Introduced by Senator McDonnell) proposes to appropriate $45 million to the Department of Economic Development for a drinking-water initiative. The money would come from the federal American Rescue Plan Act of 2021. It would go to utilities districts to replace lead service lines in drinking-water systems. The Legislature has referred this bill to the Appropriations Committee.

LB 1208 (Introduced by Senator Friesen) proposes to appropriate $15 million of funds from the federal American Rescue Plan Act of 2021 into a Broadband Pole Replacement Fund. From the Fund, the Public Service Commission could award grants to broadband-pole owners to replace their poles. Such grants would be the lesser of $5,000 or 50% of the total amount paid for replacement. Any replacement poles under the Act would, among other requirements, need to have sufficient capacity to accommodate at least two additional wireline broadband or telecommunications attachers. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1214 (Introduced by Senator Geist) proposes to amend provisions in the Broadband Bridge Act. This bill would require grant recipients under the Act to agree to provide broadband internet service in new project areas for at least five years after receipt of the funding. It would also prioritize grant applicants who can provide rates in the project area that are comparable to those it offers in other areas. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1234 (Introduced by Senator Friesen) proposes to grant telecommunications carriers an expedited approval process to cross railroad carriers’ rights of way. Under this bill, if a railroad carrier did not respond within 30 days of a written application to cross, the Public Service Commission could enter an order granting a permit to that effect. The permit would entitle the telecommunications carrier to reasonably install its line, wire, or cable across the railroad’s right of way absent the railroad’s approval. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1248 (Introduced by Senator B. Hansen) proposes to appropriate $30 million to the Department of Environment and Energy for water-quality initiatives. The money would come from the federal American Rescue Plan Act of 2021. It would go toward expanding municipal water treatment plants, acquiring land for eligible project components, and supporting agricultural production and water quality in the state. The Legislature has referred this bill to the Appropriations Committee.

LB 1255 (Introduced by Senator Bostar) proposes to appropriate $150,000 to the University of Nebraska to conduct climate-change research. The money would come from the federal American Rescue Plan Act of 2021. It would go toward updating the 2014 Assessing Climate Change report and hiring a third-party organization to recommend responses to the updated report. Both the updated report and recommendations would be due to the Legislature and Governor by December 1, 2024. The Legislature has referred this bill to the Appropriations Committee.

LB 1257 (Introduced by Senator Bostar) proposes to appropriate $10 million to the Department of Transportation to expand electric-vehicle charging stations. The money would come from the federal American Rescue Plan Act of 2021. The Department would use the money to administer a competitive grant program in which it provided matching funds to entities for installation of a comprehensive statewide network of fast-charging stations for electric vehicles. The Legislature has referred this bill to the Appropriations Committee.

LB 1262 (Introduced by Senator Murman) proposes to appropriate $8 million to the Game and Parks Commission to develop and improve recreation areas in the state. The money would come from the federal American Rescue Plan Act of 2021. The Commission could use it to hire contractors, managers, and other parties necessary to improve access, services, and tourist attractions at the state’s recreational areas, particularly its lakes and reservoirs. This bill would designate the program the Recreation Area Assistance Act. The Legislature has referred this bill to the Natural Resources Committee.

LB 1266 (Introduced by Senator Halloran) proposes to protect common carriers from administrative penalties for providing services at a free or reduced rate to persons over 65 years of age. The Legislature has referred this bill to the Transportation and Telecommunications Committee.

LB 1277 (Introduced by Senator Clements) proposes to appropriate $7 million to the Department of Economic Development to assist county agricultural societies in upgrading critical infrastructure. The money would come from the federal American Rescue Plan Act of 2021. It would go to county agricultural societies with facilities in cities of the primary class. The Legislature has referred this bill to the Appropriations Committee.

We have prepared an updated chart of these bills here. 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.