LB399 LB399
2024 2024
LEGISLATIVE BILL 399
Approved by the Governor April 16, 2024
Introduced by Brewer, 43; Erdman, 47; Albrecht, 17.
A BILL FOR AN ACT relating to the Nebraska Power Review Board; to amend section
70-1014, Reissue Revised Statutes of Nebraska, sections 70-1014.02 and
84-1411, Revised Statutes Cumulative Supplement, 2022, and section
70-1001.01, Revised Statutes Supplement, 2023; to redefine terms; to provide a public meeting and report requirement for board approval of
certain proposed electric generation facilities; to change and provide certification requirements for issuance of an acknowledgment of exemption by the board of a proposed privately developed renewable energy generation facility; to provide an exception to a virtual conferencing requirement under the Open Meetings Act; to harmonize provisions; and to repeal the original sections.
Be it enacted by the people of the State of Nebraska,
Section 1. Section 70-1001.01, Revised Statutes Supplement, 2023, is amended to read:
70-1001.01 For purposes of sections 70-1001 to 70-1028, unless the context otherwise requires:
(1) Board means the Nebraska Power Review Board;
(2) Electric supplier or supplier of electricity means any legal entity supplying, producing, or distributing electricity within the state for sale at
wholesale or retail;
(3) Private electric supplier means an electric supplier producing electricity from a privately developed renewable energy generation facility that is not a public power district, a public power and irrigation district, a municipality, a registered group of municipalities, an electric cooperative, an electric membership association, any other governmental entity, or any combination thereof. A private electric supplier is limited to the development of those facilities as provided in subdivision (4) of this section;
(4) Privately developed renewable energy generation facility means and is
limited to a facility that (a) generates electricity using solar, wind,
geothermal, biomass, landfill gas, or biogas, including all electrically connected equipment used to produce, collect, and store the facility output up
to and including the transformer that steps up the voltage to sixty thousand volts or greater, and including supporting structures, buildings, and roads,
unless otherwise agreed to in a joint transmission development agreement, (b)
is developed, constructed, and owned, in whole or in part, by one or more private electric suppliers, and (c) is not wholly owned by a public power district, a public power and irrigation district, a municipality, a registered group of municipalities, an electric cooperative, an electric membership association, any other governmental entity, or any combination thereof;
(5) Regional transmission organization means an entity independent from those entities generating or marketing electricity at wholesale or retail,
which has operational control over the electric transmission lines in a designated geographic area in order to reduce constraints in the flow of
electricity and ensure that all power suppliers have open access to
transmission lines for the transmission of electricity;
(6) Reliable or reliability means the ability of an electric supplier to
supply the aggregate electric power and energy requirements of its electricity consumers in Nebraska at all times under normal operating conditions, taking into account scheduled and unscheduled outages, including sudden disturbances or unanticipated loss of system components that are to be reasonably expected for any electric utility following prudent utility practices, recognizing certain weather conditions and other contingencies may cause outages at the distribution, transmission, and generation level;
(7) Representative organization means an organization designated by the board and organized for the purpose of providing joint planning and encouraging maximum cooperation and coordination among electric suppliers. Such organization shall represent electric suppliers owning a combined electric generation plant accredited capacity of at least ninety percent of the total electric generation plant accredited capacity constructed and in operation within the state;
(8) State means the State of Nebraska; and
(9) Unbundled retail rates means the separation of utility bills into the individual price components for which an electric supplier charges its retail customers, including, but not limited to, the separate charges for the generation, transmission, and distribution of electricity.
Sec. 2. Section 70-1014, Reissue Revised Statutes of Nebraska, is amended to read:
70-1014 (1) After hearing, the board shall have authority to approve or
deny the application. Except as provided in section 70-1014.01 for special generation applications, before approval of an application, the board shall find that:
(a) The the application will serve the public convenience and necessity,
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and that the applicant can most economically and feasibly supply the electric service resulting from the proposed construction or acquisition, without unnecessary duplication of facilities or operations; and .
(b)(i) For any proposed electric generation facility that has a generating capacity that is greater than ten megawatts, the applicant has held at least one public meeting with advanced publicized notice in one of the counties in
which the proposed facility will be located at which (A) at least fifty percent of the governing body of the electric supplier attends either in person or by videoconference, but with not less than one member of the governing body physically present, (B) the applicant explains the need for the proposed facility and the type of facility, and (C) real property owners in any of the counties in which the proposed facility will be located are provided an
opportunity to comment on the proposed facility. The applicant shall provide a report to the board containing the minutes of any such meeting and how many people commented on the proposed facility. Documentation received at any such meeting shall be made available to the board upon its request. A meeting described in this subdivision is not subject to the requirements described in
subdivision (2)(b)(iv) of section 84-1411.
(ii) This subdivision (b) shall not apply if the proposed facility will be
located on real property owned by the applicant at the time of application.
(2) If the application involves a transmission line or related facilities planned and approved by a regional transmission organization and the regional transmission organization has issued a notice to construct or similar notice or
order to a utility to construct the line or related facilities, the board shall also consider information from the regional transmission organization's planning process and may consider the benefits to the region, which shall include Nebraska, provided by the proposed line or related facilities as part of the board's process in determining whether to approve or deny the application.
(3) A privately developed renewable energy generation facility is exempt from this section if it complies with section 70-1014.02.
Sec. 3. Section 70-1014.02, Revised Statutes Cumulative Supplement, 2022,
is amended to read:
70-1014.02 (1) The Legislature finds that:
(a) Nebraska has the authority as a sovereign state to protect its land,
natural resources, and cultural resources for economic and aesthetic purposes for the benefit of its residents and future generations by regulation of energy generation projects;
(b) The unique terrain and ecology of the Nebraska Sandhills provide an
irreplaceable habitat for millions of migratory birds and other wildlife every year and serve as the home to numerous ranchers and farmers;
(c) The grasslands of the Nebraska Sandhills and other natural resources in Nebraska will become increasingly valuable, both economically and strategically, as the demand for food and energy increases; and
(d) The Nebraska Sandhills are home to priceless archaeological sites of
historical and cultural significance to American Indians.
(2)(a) A privately developed renewable energy generation facility that meets the requirements of this section is exempt from sections 70-1012 to
70-1014.01 if, no less than thirty days prior to the commencement of
construction, the owner of the facility:
(i) Notifies the board in writing of its intent to commence construction of a privately developed renewable energy generation facility;
(ii) Certifies to the board that the facility will meet the requirements for a privately developed renewable energy generation facility;
(iii) Certifies to the board that the private electric supplier will (A)
comply with any decommissioning requirements adopted by the local governmental entities having jurisdiction over the privately developed renewable energy generation facility and (B) except as otherwise provided in subdivision (b) of this subsection, submit a decommissioning plan to the board obligating the private electric supplier to bear all costs of decommissioning the privately developed renewable energy generation facility and requiring that the private electric supplier post a security bond or other instrument, no later than the sixth tenth year following commercial operation, securing the costs of
decommissioning the facility and provide a copy of the bond or instrument to
the board;
(iv) Certifies to the board that the private electric supplier has entered into or prior to commencing construction will enter into a joint transmission development agreement pursuant to subdivision (c) of this subsection with the electric supplier owning the transmission facilities of sixty thousand volts or
greater to which the privately developed renewable energy generation facility will interconnect; and
(v) Certifies to the board that the private electric supplier has consulted with the Game and Parks Commission to identify potential measures to
avoid, minimize, and mitigate impacts to species identified under subsection
(1) or (2) of section 37-806 during the project planning and design phases, if possible, but in no event later than the commencement of construction; and .
(vi) For a proposed privately developed renewable energy generation facility that has a generating capacity that is greater than ten megawatts,
certifies to the board that the private electric supplier has held at least one public meeting with advanced publicized notice in one of the counties in which the proposed facility will be located at which (A) the private electric supplier explains the need for the proposed facility and the type of facility and (B) real property owners in any of the counties in which the proposed
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facility will be located are provided an opportunity to comment on the proposed facility. The private electric supplier shall provide a report to the board containing the minutes of any such meeting and how many people commented on the proposed facility. Documentation received at any such meeting shall be made available to the board upon its request. A meeting described in this subdivision is not subject to the requirements described in subdivision (2)(b)
(iv) of section 84-1411.
(b) The board may bring an action in the name of the State of Nebraska for failure to comply with subdivision (a)(iii)(B) of this subsection, except that such subdivision . Subdivision (a)(iii)(B) of this subsection does not apply if
a local government entity with the authority to create requirements for decommissioning has enacted decommissioning requirements for the applicable jurisdiction.
(c) A The joint transmission development agreement shall be entered into to address construction, ownership, operation, and maintenance of such additions or upgrades to the transmission facilities as required for the privately developed renewable energy generation facility. The joint transmission development agreement shall be negotiated and executed contemporaneously with the generator interconnection agreement or other directives of the applicable regional transmission organization with jurisdiction over the addition or upgrade of transmission, upon terms consistent with prudent electric utility practices for the interconnection of
renewable generation facilities, the electric supplier's reasonable transmission interconnection requirements, and applicable transmission design and construction standards. The electric supplier shall have the right to
purchase and own transmission facilities as set forth in the joint transmission development agreement. The private electric supplier of the privately developed renewable energy generation facility shall have the right to construct any necessary facilities or improvements set forth in the joint transmission development agreement pursuant to the standards set forth in the agreement at
the private electric supplier's cost.
(3) Within ten days after receipt of a written notice complying with subsection (2) of this section, the executive director of the board shall issue
a written acknowledgment that the privately developed renewable energy generation facility is exempt from sections 70-1012 to 70-1014.01 if such facility remains in compliance with the requirements of this section.
(4) The exemption allowed under this section for a privately developed renewable energy generation facility shall extend to and exempt all private electric suppliers owning any interest in the facility, including any successor private electric supplier which subsequently acquires any interest in the facility.
(5) No property owned, used, or operated as part of a privately developed renewable energy generation facility shall be subject to eminent domain by a consumer-owned electric supplier operating in the State of Nebraska. Nothing in
this section shall be construed to grant the power of eminent domain to a private electric supplier or limit the rights of any entity to acquire any public, municipal, or utility right-of-way across property owned, used, or operated as part of a privately developed renewable energy generation facility as long as the right-of-way does not prevent the operation of or access to the privately developed renewable energy generation facility.
(6) Only a consumer-owned electric supplier operating in the State of
Nebraska may exercise eminent domain authority to acquire the land rights necessary for the construction of transmission lines and related facilities.
There is a rebuttable presumption that the exercise of eminent domain to
provide needed transmission lines and related facilities for a privately developed renewable energy generation facility is a public use.
(7) Nothing in this section shall be construed to authorize a private electric supplier to sell or deliver electricity at retail in Nebraska.
(8) Nothing in this section shall be construed to limit the authority of
or require a consumer-owned electric supplier operating in the State of
Nebraska to enter into a joint agreement with a private electric supplier to
develop, construct, and jointly own a privately developed renewable energy generation facility.
Sec. 4. Section 84-1411, Revised Statutes Cumulative Supplement, 2022, is amended to read:
84-1411 (1)(a) Each public body shall give reasonable advance publicized notice of the time and place of each meeting as provided in this subsection.
Such notice shall be transmitted to all members of the public body and to the public.
(b)(i) Except as provided in subdivision (1)(b)(ii) of this section, in the case of a public body described in subdivision (1)(a)(i) of section 84-1409
or such body's advisory committee, such notice shall be published in a newspaper of general circulation within the public body's jurisdiction and, if available, on such newspaper's website.
(ii) In the case of the governing body of a city of the second class or
village or such body's advisory committee, such notice shall be published by:
(A) Publication in a newspaper of general circulation within the public body's jurisdiction and, if available, on such newspaper's website; or
(B) Posting written notice in three conspicuous public places in such city or village. Such notice shall be posted in the same three places for each meeting.
(iii) In the case of a public body not described in subdivision (1)(b)(i)
or (ii) of this section, such notice shall be given by a method designated by
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the public body.
(c) In addition to a method of notice required by subdivision (1)(b)(i) or
(ii) of this section, such notice may also be provided by any other appropriate method designated by such public body or such advisory committee.
(d) Each public body shall record the methods and dates of such notice in
its minutes.
(e) Such notice shall contain an agenda of subjects known at the time of
the publicized notice or a statement that the agenda, which shall be kept continually current, shall be readily available for public inspection at the principal office of the public body during normal business hours. Agenda items shall be sufficiently descriptive to give the public reasonable notice of the matters to be considered at the meeting. Except for items of an emergency nature, the agenda shall not be altered later than (i) twenty-four hours before the scheduled commencement of the meeting or (ii) forty-eight hours before the scheduled commencement of a meeting of a city council or village board scheduled outside the corporate limits of the municipality. The public body shall have the right to modify the agenda to include items of an emergency nature only at such public meeting.
(2)(a) The following entities may hold a meeting by means of virtual conferencing if the requirements of subdivision (2)(b) of this section are met:
(i) A state agency, state board, state commission, state council, or state committee, or an advisory committee of any such state entity;
(ii) An organization, including the governing body, created under the Interlocal Cooperation Act, the Joint Public Agency Act, or the Municipal Cooperative Financing Act;
(iii) The governing body of a public power district having a chartered territory of more than one county in this state;