NEBRASKA POWER REVIEW BOARD
August 10, 2020
The 812th meeting of the Nebraska Power Review Board (“the Board” or “PRB”) was held in the First Floor hearing room, Nebraska State Office Building, 301 Centennial Mall, Lincoln, Nebraska. The roll was called and present were Chairman Reida, Vice Chairman Hutchison, Mr. Grennan, Ms. Hilyard and Mr. Moen. Ms. Hilyard participated via videoconference from Scottsbluff. She was in the Scottsbluff City Council Chambers. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on July 31, 2020. Although this was an in-person meeting with one member on videoconference, the Board also made the meeting available to the public through Webex. The Webex log-in information was available on the Board’s website and was published in the Lincoln Journal Star notice. If any member of the public wanted to speak, they could use the “raise your hand” icon. At that time they would be unmuted and announced so everyone would know who was speaking. All background materials for the agenda items to be acted on were provided to all Board members prior to the meeting and a copy of the materials was in each Board member’s notebook. The executive director announced that a copy of the Nebraska Open Meetings Act was on display on the south wall of the room for the public to review, and another copy was available in a three-ring binder on the table at the back of the room. A copy of all materials that the Board would consider was available for public inspection on a table in the back of the room, as well as extra copies of the agenda.
The Board first considered the draft minutes from its June 8, 2020, meeting. The staff did not have any recommended changes and no one had contacted the staff to request any changes. Mr. Grennan moved to approve the minutes for the June 8, 2020 meeting. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next agenda item was acceptance of the expense reports for the months of June and July. In June, there was $22,947.60 in personal services, $17,767.02 in operating expenses, and $0.00 in travel expenses. The total expenses for June were $40,714.62. In July, there was $32,304.31 in personal services, $21,341.37 in operating expenses, and $0.00 in travel expenses. The total expenses for July were $53,645.68. In July there were three pay periods, which is the reason the personal services category is considerably higher than usual. The State’s fiscal year began on July 1, 2020. There are still some assessments that have not been received from the electric utilities. Mr. Grennan asked about the budgeted dollar amount on the cash flow worksheet. It was much lower than normal. Ms. Hallgren, the Board’s business manager, explained that the number is the actual cash on hand and that there are still assessments left to collect. There was a discussion of the budgeted amount and that it was confusing. Ms. Hallgren stated that the cash flow worksheet was designed to show what the cash on hand is and not what the Board budgeted or its total appropriation. That is why it shows an actual dollar amount on hand, which is lower than the total amount assessed against the utilities. The month of July would be the only month that it would be lower than the agency’s approved cash budget, which is based on the total assessment. The Board discussed how this could be adjusted to show what the budget amount is, and not the actual cash on hand. Mr. Grennan said he would like to have the report show the amount that will be or is expected to be received based on the assessments sent to the utilities. That is the target figure against which the Board needs to determine whether its year-to-date spending is appropriate given the amount of time that has expired so far during the fiscal year. The Board asked the staff to use that figure instead of the actual cash on hand for the cash flow worksheet next July. Mr. Grennan moved to accept the June and July expense reports. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next item on the agenda was a presentation of the 2020 Annual Load and Capability Report. Jason Fortik, Vice President for Power Supply for the Lincoln Electric System, as Chair of the Nebraska Power Association’s (NPA) Joint Planning Subcommittee, gave the presentation on the report. The executive director stated that many years ago the Board designated the NPA as the representative organization to prepare this report, pursuant to Neb. Rev. Stat. § 70-1024. The report covers the utility load forecast and generation resources available and needed to satisfy the forecasted loads in Nebraska over the next 20-year period on a statewide basis. The report includes information concerning generation units that are planned, committed, and studied in order to meet the State’s projected load growth. Overall, Nebraska currently has excess generation capacity. Most of the recent construction of generation has been renewable facilities. Over the 2020 through 2039 study period, the average peak demand growth rate for the State is projected to be .6 percent per year. The Board thanked Mr. Fortik for the presentation and the discussion. Mr. Moen moved to accept the 2020 Load and Capability Report. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen –yes. The motion carried 5– 0.
The next item on the agenda was to consider PRB-3927. This was an application submitted by the Howard-Greeley Rural Public Power District for authority to construct .8 mile of 3-phase subtransmission line in Valley County. The application was filed on July 20, 2020. The project will upgrade an existing line from 34.5 kilovolt (kV) to 69 kV and add a shield wire. The line was aging and needed new conductor, so it was a good time to upgrade the line as part of the reconductoring. The line serves Howard-Greeley RPPD’s current customers and substation. No new customers will be added as a result of the line upgrade. The portion of the line requiring approval is located in Loup Valleys RPPD’s service area. Loup Valleys RPPD submitted a Consent and Waiver form. The Board consulted with the Nebraska Game and Parks Commission as required by Nebraska Revised Statute 37-807(3). In a letter dated August 4, 2020, the Commission determined the project is in the range of the endangered Whooping Crane and Threatened Northern Long-Eared Bat, River Otter, and Small White Lady’s Slipper. The Commission said there are no records of state-listed species near the project site, and there does not appear to be suitable habitat for those species in the project area. The Commission determined that the project will have “No Effect” on any state-listed threatened or endangered species and did not object to the Board’s approval of the project. Vice Chairman Hutchison moved to approve PRB-3927 as described in the application. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next item was to consider approval of an amendment to the Board’s Office Policy 6. Office Policy 6 covers approval of travel plans and expense reimbursements for Board members. The issue relates to an informal recommendation in the State Auditor’s recent report regarding when a Board member should be eligible to have lodging and meals paid when a Board meeting or other Board-related activity ends early enough for the Board member to return home at a decent hour. At the May meeting the executive director had suggested that if a PRB meeting or other event ends by 2:00 p.m., the Board member would need to travel home. If he or she did not do so, he or she would not be eligible to be reimbursed for overnight lodging expenses or the dinner meal that night or breakfast the next morning, unless the reason why staying the night was necessary was documented. Reasons warranting an extra night’s stay even though a meeting ended early in the day might include inclement weather, illness, mechanical failure of the member’s automobile, road closures, or other similar scenarios. At the May meeting the Board asked the executive director to draft language that a board member would need to travel home if he or she would be expected to arrive home by 8:00 p.m., as determined by the local time at their residence. Executive Director Texel drafted a new section VI to Office Policy 6 to address this issue. During the Board’s discussion of the policy at the May meeting, it was brought up that in the section following the new language, there is a definition of when an expense is “incurred”. Executive Director Texel told the Board the statute involved (Neb. Rev. Stat. section 81-1174) requires that reimbursement requests be submitted no later than 60 days after the final day on which expenses were incurred. He had checked with State Accounting and was told that each agency has the discretion to define the term “incurred” to mean either when the underlying purchase or transaction takes place, or when the travel status for the applicable travel event ends. In the current Office Policy 6, the Board years ago determined that “incurred” is defined to mean when the underlying transaction takes place (such as purchasing airline tickets in advance, or paying for the first night of a hotel stay, which is sometimes required). The Board wanted to change its definition so for PRB purposes the term means at the conclusion of the travel event. Then all expenses for that event would be submitted within 60 days of that date. Chairman Reida pointed out that in the third line of section VII.A.1 the word “when” is capitalized in the draft and should be lower case. Vice Chairman Hutchison made a motion to approve Office Policy 6 with the noted correction. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next item was to consider approval of amendments to the Board’s Office Policy 4. Board Policy 4 covers rules for reimbursement for PRB staff member travel expenses. This amendment amends the definition for the term “incurred” so it is consistent with Office Policy 6. Vice Chairman Hutchison pointed out that the reference to “Board member” in the amended wording in yellow highlights should be to “staff member”. Mr. Grennan made a motion to approve Policy 4 with the noted correction. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next item on the agenda was to consider approval to reimburse the executive director and general counsel for the cost to participate in the Nebraska State Bar Association’s (NSBA) webinar on July 31. The Government and Administrative Practice Section of the NSBA sponsored a webinar on July 31 titled “2020 Annual Government and Administrative Practice Seminar”. The webinar provided 2.25 hours of continuing legal education credits. The cost for NSBA members was $112. There were three sessions: 1) Governmental Power in an Emergency, 2) Can I Block Cranky Constituents? First Amendment Issues in Social Media, and 3) Municipalities in the Pandemic. The executive director and general counsel already paid the $112 to attend. Mr. Texel provided the Board with a very brief overview of what was covered at the seminar. Mr. Grennan moved to approve reimbursing the executive director and general counsel for the $112 to attend the NSBA government practice webinar. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next item on the agenda was the executive director’s report. The first item was the Southwest Power Pool (SPP) update. Mr. Grennan gave an update on the activities occurring with SPP. There has been a lot of activity since the SPP business meeting on July 27. Major items covered were the HITT team’s approval of a white paper setting out a process to approve transmission that serves only as a “highway” to move electricity generated by renewable sources outside a local area, so that the transmission can be treated as a “highway” for cost allocation purposes instead of a byway. The process includes a waiver that is requested by the local utility that would otherwise have to pay for most of the cost to build transmission it does not need in order to move electricity from the renewable sources out of its area to be sold on the market. There were still some issues remaining regarding whether the cost should be entirely socialized across the SPP footprint. SPP staff will conduct an analysis on a waiver to see if there is a benefit to the SPP footprint to determine if a waiver should be granted. Mr. Grennan also spoke about behind the meter generation. He spoke briefly about the RSC members from other states and the PRB member who represents the Board at the RSC. The other Board members pointed out that Mr. Grennan has only one more year before his term with the PRB will end. At that time the PRB members will need to appoint someone else to take over the RSC representative position. Mr. Moen noted that Mr. Grennan was the Board’s designated engineer member. He asked if the Board’s engineer member was designated as the RSC representative. Executive Director Texel said any Board member could be designated as the RSC representative. It is up to the Board members to decide which member will be appointed to represent the PRB and Nebraska on the RSC. The difficulty is that the RSC position involves a good deal more time than the member’s PRB duties. Mr. Grennan stated that the other RSC members are mostly attorneys. The representative is required to be a Board member or Commissioner, though.
Executive Director Texel then updated the Board on the Legislative session. Mr. Texel told the Board about a proposed amendment to the Open Meetings Act to allow public bodies to hold public meetings via conference call or video conference during a health emergency. This amendment had a sunset on July 1, 2021. This was meant to be a temporary measure until the Legislature could deal with the topic more comprehensively during the 2021 session. A Committee hearing was scheduled for July 27, but the hearing was cancelled. It was the executive director’s understanding that the cancellation was due to the Governor’s office expressing opposition to the amendment.
The next discussion was a briefing on a decision issued by the U.S. District Court for the District of Colorado in Oregon-California Trails Ass’n et al. v. Walsh, et al. The ruling was issued on June 17, 2020. Executive Director Texel prepared a legal brief summarizing the decision for the Board. The court decision was 116 pages long. The case deals with Nebraska Public Power District’s (NPPD) “R-plan” or “R-Project” 345 kV transmission line through the Sandhills in central Nebraska. The line would be approximately 220 miles long. Several parties challenged the decision of the U.S. Fish and Wildlife Service (the Service) to issue a “take” permit to NPPD for American Burying Beetles, which are listed as an endangered species. The Court engaged in a very lengthy discussion and analysis of the chances the project might cause harm to Whooping Cranes. The Court dismissed numerous challenges brought by Petitioners, but vacated the take permit on three bases: 1) The Service failed to include expected wind turbine development in Antelope County in its analysis; 2) The “Programmatic Agreement” between NPPD and the Service was arbitrary and capricious because it failed to examine the effects of the Thunderhead Wind project in Antelope County and what could be done to resolve any potential adverse effects to historic properties, and 3) the Service inadequately considered the effects of the proposed R-Plan line on the O’Fallon’s Bluff segment of the historic Oregon and California Trail. The Court remanded the case back to the U.S. Fish and Wildlife Service to examine the above issues and make the necessary determinations. The Court assessed the costs of the lawsuit against the Service. The decision does not stop the project, but rather requires U.S. Fish and Wildlife Service to consider and analyze the issues identified, issue a new ruling regarding the American burying beetle “take” and determine if the historic areas in the project will be damaged and if so, what, if anything, can be done to prevent or mitigate that damage.
The next discussion was on the Federal Energy Regulatory Commission’s (FERC) approval of a final rule changing the PURPA Regulations. On July 16, 2020, FERC approved a final rule amending the PURPA regulations. FERC has a fact sheet that does an excellent job summarizing the revisions. Executive Director Texel covered the fact sheet with the Board.
The final item to discuss was the executive director and general counsel’s annual performance evaluation. This performance review is done around the month of August, since that was the month Mr. Texel was originally hired. In past years, the Board has delegated completion of the review to the Chair, with the members providing any comments or input they wanted to the chair. The Board members stated they would submit any comments to the chair, and delegated completion of the performance evaluation to Chairman Reida.
The next meetings will be September 14, October 19, and November 9, 2020.
Vice Chairman Hutchison moved to adjourn the meeting. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison –yes, Mr. Grennan – yes, Ms. Hilyard – yes, and Mr. Moen – yes. The motion carried 5 – 0. The meeting was adjourned at 11:58 a.m.
Timothy J. Texel
Executive Director and General Counsel