Lake and Wetland Improvements Continue in Cherry County Watershed

Management to improve the natural conditions of lakes and wetlands in a Cherry County watershed continue.

There has been a request by Sandhills Task Force spokesperson Shelly Kelly for improvements at Vrender Swamp in central Cherry county, at the southern edge of the Valentine Lake district. She officially asked Cherry County commissioners for approval to install an additional 36” culvert – adjacent to a present similar culvert – as well as a concrete box to control water flow and to place fish screens at each culvert. These constructs would be placed at the county road at the southern edge of Vrenders Marsh (a.k.a. Vrender Swamp), according to details present commissioners meeting on July 25th at Valentine. The fish-screens are solar-powered and cycle on a timed schedule to remove accumulated debris to ensure an uninhibited water flow. This equipment would be built by a son of the land owner, according to Kelly. Having them along the county road would improve their reliability as they could be more easily monitored at a readily accessible location. Any expenses associated with the project would be paid by sponsors.

The proposal was positively received by the commissioners, and notably by Jim Van Winkle (a former representative of the Sandhills Task Force), though a decision was tabled until there could be a determination to ensure the county road right-of-way alignment as notably voiced by commissioner Tanya Storer. The three commissioners agreed that that landowners would need to be timely informed of roadway construction activities, and that any work be done in a manner that would not inhibit travel necessary for area ranchers, especially if they need to transport cattle to the livestock market.

“The objective of this project is to impede upstream movement of invasive common carp and ultimately restore the high-quality ecosystem inherent to Vrenders Marsh and the associated wetland,” according to information presented at the meeting. There would be 450 acres of “permanent lake and seasonal wetlands” restored with the removal of carp which would be expected to result in “high quality habitats for waterfowl, shorebirds and desirable game fishes.”

The original plan, for which a permit was received from the Army Corps of Engineers, would have placed a culvert northward in the meadow, and which would have required the construction of a water control berm. The waters would be treated with rotenone to remove any fish present.
The project would be done on privately owned property.

Other participants in the project include the U.S. Fish and Wildlife Service and the Nebraska Game and Parks Commission.

There has been previous work done to improve the quality of this watershed for game fish and migratory birds following the placement of two fish barriers just eastward of the Rat and Beaver Lakes complex. Both lakes were treated with rotenone to remove unwanted fish on September 3, 2014, according to Zac Brashears, a fisheries biologist employee of the Nebraska Game and Parks Commission.

Following the treatment, yellow perch, bluegill, largemouth bass, black crappie and redear were released to reestablish the fishery, he said via email. In addition, “the lake has rebounded quickly with both emergent and submergent vegetation making it a great place to view shorebird species and waterfowl including trumpeter swans.”

The project summary submitted to the county commissioners also stated that “high-quality habitat” would be restored at Vrender Swamp following completion of this project. Waterfowl were notably indicated as beneficiaries.

“We are currently in the stages of documenting how these systems change and what added benefits are created once common carp are removed,” Brashears said.

The Cherry County Commissioners voted 2 to 1 to deny the application to install a second culvert beneath the county road so the status of this project is uncertain.

Land Impacts by NPPD Indicated by Corps of Engineers Document

The Nebraska Public Power District in mid-May applied for a nationwide permit from the Army Corps of Engineers that would allow them to place fill in wetlands along the corridor of the r-project.

This is a section of text from the letter submitted to the federal agency: “NPPD is applying for a Nationwide Permit (NWP) 12 (2017 issue) for Utility Line Discharges from the US Army Corps of Engineers (USACE) to authorize the loss of less than 0.50 acre of waters of the United States (US) from fill.”

The document submitted to the Corps is titled “R-Project – Pre-Construction Notification – Application No. 2012-02858” as prepared by consultant company Power Engineers and with a date of May 10, 2017. This document was provided by the federal agency after three Freedom of Information Act requests.

What is very prominent was that NPPD did not just apply for a permit from the Corps, but they applied for a particular type of permit, and made certain that the indicated impact to wetlands was below the threshold that would have required an individual permit requiring a public notice and allow public review.

A Problematic Application

Amidst the extensive information in the document, there are several items which are very problematic based upon a review of details.

The application is basically built upon a false premise that immediately becomes evident in Figure 1, showing the project location. This map differs from other maps showing the “final transmission line route” as given in other project review documents also issued in May, especially the draft environmental impact statement released by the Fish and Wildlife Service. Even the permit area map given as Figure 1 in the Habitat Restoration Plan portion of the document submitted to the Corps has an alignment different from what is shown in Figure 1 shown on previous pages.
The map given in the Corps documents has three obvious changes: 1) northeast Blaine county eastward of Highway 7 which shows a shift southward; 2) just west of Highway 183 in northern Loup county and in the vicinity of the Calamus river which shows a shift northward; and, 3) a slight southerly shift in northwest Garfield county on the south side of Carson lake.

Map indicating three instances of changes in the supposed "final route" for the proposed R-Project transmission line.

These changes have occurred despite the continued and repeated insistence by NPPD that the route is final, but this claim apparently applies only until the utility company decides to make changes to suit their purpose.

It needs to be indicated that NPPD cannot convey a definitive final route for the industrial powerline until NPPD has signed, legal agreements for any right-of-way for access. There are indications that there are few such signed easements, notably in Blaine and Thomas counties, where an evaluation was done by an advocate to prevent construction of the r-project industrial powerline.

This application conveys a tentative route that is a convoluted route of many changes here and there in directions to such an extreme that there is hardly ever any long length of straight-line alignment in comparison to other powerline alignments shown maps within the NPPD documentation.

The draft restoration management plan portion of the document indicates that there will be “temporary disturbance activities” in 1,042 acres within the permit zone and 465 acres outside the permit area. Each site will “require restoration efforts” as described in this plan. This extent of acres as being directly impacted according to the NPPD application includes both lowland and upland localities.

Placement of Fill in Wetlands

An essential component of the document is an evaluation of where fill will be placed. The only item for which jurisdictional fill is being considered is for the proposed monopoles where there is an indicated value of “0.001” acres of impact for each monopole structure. Though steel-lattice structures would be placed directly into in wetland areas and the aquifer, there is an exemption on any fill activity as the anchor screws have been legally defined as not being a type of fill. Most of indicated activity associated with permanent fill are denoted in a similar numeric factor of 0.000 extent.

There is an overall list of places where construction activity would take place within the multiple county area which the powerline would traverse. There are dozens of places that will require temporary fill, and which will exceed a minimally indicated more than 40 acres overall for dozens of miles – for which there is no indicated extent – of vehicular routes for items such as “overland travel access” or pull sites, or temporary work areas as well as fly yards. Pictures with the document indicate particular wetland places where impacts will occur.

There is no indication on the number of times that NPPD-associated vehicular traffic will traverse a particular route, as the number of times heavy equipment crosses a grassland or meadow, the impact will increase. What if it is a very wet season when construction crews want to travel to a particular tower site? There are times following extensive precipitation when wet meadows should not be traversed. The NPPD application does not consider such conditions. What if a big truck gets stuck in a meadow, and other big equipment is required to extract it from the wetland? This will result in a deep gouge into the ground, and not simply be a track across the land.

At four indicated places where culverts will be installed, the banks of the waterway will be altered to a configuration that will conform to the circular or oval shape of the metal culvert. Dirt will be placed within the waterway and atop the structure to allow vehicle travel. This is not a temporary disturbance.

The “temporary” designation for travel access is a not particularly considered in any specific manner by the document. Will NPPD will continue to traverse these routes for powerline maintenance and any emergency access? There is an obvious need of the utility company for regular, perhaps twice a year maintenance work. If a culvert is required for a construction route, it seems reasonable that this same construct will be needed for additional future and expected access.

There is nothing in the document submitted by NPPD that even considers the access necessary for the required continued maintenance and emergency access of powerline features. How will any utility company truck(s) traverse routes across the hills after a substantive snowfall exceeding 12 inches and perhaps with ongoing blizzard-like conditions? They will not be able to do any such thing. So rather than align the powerline along already established rights-of-way, they instead prefer to place the line where access will not be possible during severe winter weather, so any repairs will need to be delayed until some later time.

Since the r-project is not intended to provide a powerline for “local” customers, instead any outage might be locally irrelevant, but the overall power grid will be operating in a deficient manner. This situation does not conform with the intent of NPPD and the Southwest Power Pool to improve quality of service.

It needs to be noted that wetland delineation occurred only at places where the landowner allowed “right of entry” so any wetland evaluation is only partial since some property owners may have denied access to their property. There were three dates, primarily during the 2016 growing season, when field surveys were done by hired consultants.

There is a claim made that any “temporary fill” within wetlands will be removed following the completion of the powerline construction. The document indicates: “4) temporary fill will be removed in its entirety, and the affected area will be restored to its pre-construction condition including seeding wetlands with appropriate native hydrophytic species as needed; and 5) when temporary fills are placed in a wetland, a horizontal marker will be used to demarcate the existing ground elevation in order to restore the wetlands to pre-construction conditions.”

There is no indication of any effort by NPPD to conduct work in wet meadow areas during times of the year when the ground is frozen, which would reduce impacts. If the ground is frozen, perhaps the placement of fill would not be required as it would be hard ground traversed rather than a soft-ground water-saturated soil. NPPD has not considered this alternative.

There is no timeframe indicating when any temporary fill would be removed. This needs to precisely defined so that NPPD cannot simply wait years or until some time of their choosing.

It is impossible for any entity to restore each and every wetland to “pre-construction conditions.” Once a wetland is disturbed by being filled to some extent, and then when excavation occurs to remove the fill, it is forever altered. Only time will allow recovery, and this will be influenced the overall extent of alteration and by any artificial seeding.

Within the report, there is, of course, a section on “Avoidance, Minimization, and Compensation” with one pertinent statement: “Restrict all construction vehicle movement outside the ROW to pre-designated access or public roads, and restrict the use of other roads or areas to emergency situations.”

This is a statement which is directly the opposite of what is shown in the NPPD document to develop new travel access routes for construction, many of which are outside the powerline right-of-way. This statement would seem to indicate that there will be no new access routes developed though NPPD will obviously create new travel routes through the hills to suit their needs.

Powerline Route Maps

A key section of the document provided to the Corps is Appendix B, the “Wetland Map Book” which comprises 81 images showing particular segments of the powerline route with land features shown in association with the powerline alignment and the proposed r-project access route within these counties: Lincoln (where two forested wetlands along the South Platte river will be cleared; these two locations are not indicated in the tabular fill summary because it is vegetative removal, not placement of fill. There is a similar situation at the North Platte river), Logan, Thomas, Blaine, Loup (with maps for ca. 20 sections of the proposed powerline route), Garfield (ca. 15 segments), Holt (ca. 12 segments) and Wheeler.
These are some example of the route maps indicating prominent land features. After looking at the “map book” time and time and time again, these maps conveys some of the most notable indications associated with the proposed powerline route and access routes as derived from some example computer screen captures from the document provided by the Corps.

Crossing the North Platte River. Note how the powerline alignment does not adhere to the westerly North Prairie Trace Road because there would not be a “pull-site” available at the western extent of the corridor and along a roadway, as such a place would be within the river, so instead the line will be placed through forested wetlands rather than along the road.	North Loup River northwest of Brewster.
Along Gracie Creek avenue. The dashed black lines indicate the proposed route. How will the topography will altered so that the immediate setting of the powerline tower is suitable for an industrial lattice tower. This is a situation all along this indicated segment of the proposed r-project.	Note the topography of this site for a powerline construct at the western end of Gracie Creek Avenue. It seems that NPPD will conform the site to make it suitable for a lattice tower, rather than conform their construct to the natural contours of the hills. The marker pictured - and others in the immediate vicinity - are nothing but trash on the land.
This location is on the Hawley Flats. The powerline pole will be placed directly west of the county road and within the wetland extent. Because of legal machinations, placing the steel-lattice tower within this wetland site, it is not considered to be sort of fill activity. Notice how the map is erroneous as it calls the road “Holly Flats” which is an obvious and notable error.	This is a photograph taken in April 2017 which shows a marker indicating the specific location of an industrial powerline tower. There are additional impacts due to the imposition of pull areas and work yards to the south.
Alignment shift at the south side of Carson lake in northwest Garfield county. The route of the proposed powerline could follow a county road westward of the lake, and then continue along the county road alignment rather than traverse overland through a lake setting and wetland meadows and other portions of a natural landscape.
Along Highway 11. There was an access route of a greater extent selected to avoid any crossing associated with Big Cedar creek.	Southward of Goose Lake WMA. At Highway 183 the utility company decided to move the live southward to an alignment where there is no access route, rather than make the effort to just have a straight-line alignment along county road 846.

Despite the extent of proposed access routes associated with the conveyed alignment of an industrial powerline, the details given to the Corps and other federal agencies are associated only with a proposed corridor. This document indicates that the potential impact is much greater because of ancillary routes of vehicular travel. Yet this has received only slight consideration via the ACE document. Every consideration needs to be given to the overall particulars, not just some chosen portion of an industrial construct. The details given represent a “false reality” which is not an overall reality accepted by residents of the Sand Hills.

Vegetative Restoration

Essential to any review of wetland conditions is an evaluation of the flora, and there are those details given in the permit application. Appendix E provides the “wetland determination data forms” as prepared for some sites along the project corridor.

Why is it that the species indicated to be used to reestablish the disturbed vegetation – based upon some report or another – do not include the species actually documented as growing at a several locales? Subtle nuances in plant growth represent centuries of adaptation yet NPPD prefers to use a few so-called “representative studies” to make decisions on what needs to be seeded, with there being an obvious focus only on some representative grassland species.

Representative species actually present on the east-west segment of the line include, for example, include these sorts of plants as indicated on many “Wetland Determination Data Form” reports prepared for site surveys, notably in the route along County Road 846 in southern Holt county and northern Wheeler county: Carex (sedges), different species of Juncus (rushes), Calamagrostis stricta (slimstem reedgrass), Ratibida columnifera (upright prairie coneflower), Verbena stricta (hoary verbena), Liatris aspera (a gayfeather species), Agrostris giganteum (= A. gigantea; a grass species), Eleocharis compressa (flatstem spikerush) at several sites, Trifolium pratense (red clover), Ambrosia psilostachya (Cuman ragweed), Phalaris arundinacea (reed canarygrass), Typha angustifolia (narrowleaf cattail), Distichlis spicata (inland saltgrass), Spartina pectinata (prairie cordgrass) and numerous other sorts of plants as documented during site surveys.

A claim conveyed in the NPPD document is that all restoration will be completed with a five-year timeframe, with monitoring of the restoration efforts. The document states: “A formal Effectiveness Monitoring Report will be submitted to USFWS only for Zone 1, because that is the area of the project under USFWS jurisdiction through the ITP. The annual report will be prepared following each late-summer monitoring session, which will include results from the effectiveness monitoring and document progress toward achieving the performance standards. If performance standards are met, the fifth annual report (end of five-year monitoring) will be the final report on restoration effectiveness. If performance standards are not met within the initial five-year monitoring period, adaptive management measures will be implemented and post-construction restoration effectiveness monitoring will be extended until the standards are met. Any data collected for Zone 2 will be kept by NPPD to document restoration success.”

It is not apparent how this information will be available for public consideration and that there would be any sort of review of efficacy.

The seeding mix indicated in the document submitted to the Corps does not represent the overall flora present and thus lacks any proper suitability in any indicated vegetative restoration. The species listed in the document are primarily focused on grass species, mostly ignoring forbs and other sorts of plants which exist in a naturally adapted vegetative setting.

Considering the Section 404 Evaluation

The pre-construction document received from the Corps after three Freedom of Information Act requests, comprises 45 pages and several appendices as prepared by Power Engineers for the utility company so it comprises a much greater extent of pages.

Due to the many problems with a permit request by NPPD, the application needs to be elevated to an individual permit where the public can review details in a timely manner and that there would also be a public hearing or two in the proposed project area, preferably Brewster and then Burwell. To do anything otherwise, would be an intentional decision that disregards the public and most notably ranch-country residents.

Cherry County Planning Board Violates Open Meetings Act

(Copyright 2017 James E. Ducey. All rights reserved) Also issued in the Grant County News.

The Cherry County Planning and Zoning Board violated the Open Meetings Act during their morning meeting on July 21st at the commissioner’s room at Valentine.

The three items which were violations are indicated in Section 84-1412 of the Act.
The first and most egregious violation was of subsection 1, which states: “…the public has the right to attend and the right to speak at meetings of public bodies …”

There was no comment period item on the agenda and there was no opportunity given to allow public comments by attendees.

This is especially problematic because Gary Swanson stated at the previous meeting of the board in early July that public comment would not be allowed at their next meeting. Despite my objections at that time that this would violate the Open Meetings Act and with a strident request to the board that this objection be entered into the public record, this statement was not corrected, nor was any subsequent action taken by board chair Jim Buer. These two board members and everyone on the board was told that to not allow public comments would be a violation of the Open Meetings Act.
Buer stated I should talk to Eric Scott, the county attorney. Following a meeting with the attorney there was a better understanding on how to deal with any potential violations.

A subsection 4 of the Act states: “Any member of a public body who knowingly violates or conspires to violate or who attends or remains at a meeting knowing that the public body is in violation of any provision of the Open Meetings Act shall be guilty of a Class IV misdemeanor for a first offense and a Class III misdemeanor for a second or subsequent offense.”

Therefore, each member of the board present on July 21st knowingly violated the Open Meetings Act, especially since each of them had been present at the meeting earlier in the month and heard the notice that to not allow public comment would be a violation. This means there has been a legal offense by eight members of the board, including messrs. Billings, Buer, Ericksen, Lee, Mathis, Pabst, Swanson and Wheeler.

Another pertinent subsection states that “Public bodies shall make available at the meeting or the instate location for a telephone conference call or videoconference, for examination and copying by members of the public, at least one copy of all reproducible written material to be discussed at the open meeting.”

There was no public copy available in the meeting room of a) the meeting agenda, and b) the minutes, so there were two distinct, additional violations. Photocopies of both items were however given to members of the board by the county zoning administrator.

Just before adjournment of the meeting – with an insistence to speak – a formal, verbal objection was made with a request that it be entered into the public record. This was personally done to comply with an annotation to Sec. 84-1412, which states: “To preserve an objection that a public body failed to make documents available at a public meeting as required by subsection (8) of this section, a person who attends a public meeting must not only object to the violation, but must make that objection to the public body or a member of the public body.”

This clause was read in its entirety to ensure that the board members and public present understood the complaint. The objection was told to the eight members of the board that were present, as well to the more than ten members of the community present. The entire meeting was videotaped by an attendee so there is an obvious record.

Because of these violations, there is an opportunity to file a civil law suit as Section 84-1414, subsection 1 allows recourse: “Any motion, resolution, rule, regulation, ordinance, or formal action of a body made or taken in violation of the Open Meetings Act shall be declared void by the district court if the suit is commenced within one hundred twenty days of the meeting of the public body at which the alleged violation occurred.” This language is reinforced in subsection 3.

Subsection 2 states that the “… county attorney of the county in which the public body ordinarily meets shall enforce the Open Meetings Act.” This would be Mr. Scott in Cherry county.

It also needs to be known that despite multiple and repeated requests by some meeting attendees for a sign-in sheet, both the planning and zoning board and county commissioners continue to disregard this means of getting into the official record the names of people that have taken the time to be involved in the public discourse. The excuse given is that this is a courtesy not a legal requirement. It is a request which elected public officials apparently prefer to ignore. At multiple meetings, an attendee has personally gotten together a sign-in sheet and spread it around so that public involvement would be documented.

NPPD Forces Feds to Nix Attendance of FWS Official at Community Meeting

A phone call from a federal office in Washington D.C. prevented Robert Harms of the U.S. Fish and Wildlife Service from attending a private meeting in Thedford on the afternoon of July 17, 2017.

Officials of the Nebraska Public Power District had learned of the meeting via an online posting, and called the Denver and Grand Island office of the federal agency, but were told by an agency head in Nebraska that the question and answer meeting was still a go, according to details provided by a meeting sponsor. Because of communication with an office in Washington, D.C., Harms received notice that he could not attend the meeting. It was conveyed that NPPD thought that it looked like Harms was “going behind their back” and made the FWS look biased.

Harms, from the Nebraska Field Office, had planned to answer questions regarding the R-Project. He was already in Thedford, when he received the notification to not attend, within the hour prior to the start of the meeting.

Prior to the start of the meeting, two NPPD representatives were sitting in a back corner of the meeting room of the venue. They were kindly asked to leave, initially balked as they were told to attend by some lawyer and then erroneously said that Mr. Harms would be present. Once told that it was a private meeting and they did not have reservations, they were escorted to the exit and it was made certain that they left, according to the hostess of the meeting. While the meeting was underway, an attendee that arrived a short time after it had started, saw two people in an NPPD truck driving around, taking pictures of parked vehicles and their license plates, she said.

Ranchland Community Gathering

Despite the lack of a guest that would have been greatly appreciated, the meeting continued with discussions on these key items:
* the Section 404 application made to the Army Corps of Engineers where NPPD has asked for a type of permit which does not address fill being placed in wetlands for the required long-term powerline and power-pole maintenance; they have also requested a permit that was prepared in a manner that would not allow public review, as associated with an individual permit. Information on this application was received three Freedom of Information Act requests. Any decision is still pending.
* change in r-project alignment: the alignment map in the ACE document does not match the alignment indicated in other draft documents that have recently been submitted for public review; there are obvious substantive changes.
* lack of legal agreements for many portions of the proposed powerline route as obvious due to the few easements filed in deed records of two counties which the powerline will traverse, notably Blaine county.
* NPPD and regulatory agencies undertaking an environmental review and other considerations for a project where the final route of the powerline is hypothetical due to the lack of legally-indicated easements.
* how is it that NPPD can identify itself as a “quasi-public” corporation; this company has even indicated that it is a public corporation or a political subdivision, according to documentation received via the FOIA request; an action item indicated at the meeting was to have the Nebraska Attorney General issue a finding that will provide a final answer as to the type of company designation for NPPD. It is impossible for NPPD to be a "political subdivision" as the term is applicable to incorporated villages, towns and cities.
* pending opportunity for further public comment on the draft environmental impact statement and other project documents, comprising about 1500 pages; additional weeks will be provided, based upon details which are expected to be issued this month in the Federal Register.
* matters regarding the legal statutes of the state of Nebraska Open Meetings Act, including how these statutes have recently been violated in association with public meetings on the r-project and wind turbine planning efforts in Cherry county.
* plans for ongoing activities to keep industrial powerlines and unwanted wind turbines from being placed in the sandhills, a place that is special for each person in the meeting, and for future generations, as stated multiple times by speakers. Cattleman Steve Moreland from Merriman put it very succinctly: “Just say no” to unwanted turbines and powerlines.

The private meeting was hosted by Dan and Barb Welch of the Brush Creek Ranch which is primarily west of Brownlee, with their south unit a short distance south of Thedford, along with great involvement from "members" of the advocacy group “Preserve the Sandhills.” More than 65 people attended, including Merriman, Valentine, Wood Lake, the Brownlee area, Brewster, Burwell, and Thomas County residents. There was also a representative or two from local planning boards or county commissioners that attended to hear the commentary.

There were many successful ranchers present, sitting on the chairs in the rooms. Their names could be mentioned individually, but that will not happen here because it was a community meeting where a bunch of special ranch country decided to splice out personal time during a busy summer season to be present at a meeting for common causes.

Lots of cowboys hats were upon the heads of cattlemen. There were boots a bit of distance above the floor spread about. The crowd was completely respectful. They listened. They learned because among those present are a few people which have spent multiple hours dealing with government, wind turbines and an industrial powerline. Most importantly, everyone, yes everyone was given a chance to speak. Everyone listened attentively in each instance.

The meeting was one more example of sand hill ranchland residents gathering to work towards conservation of their home place now as well as for their future generations.

Blaine county is now initiating efforts to develop zoning regulations, according to comments made at the meeting and details mentioned at the meeting of the Cherry county commissioners on July 11th. An initial meeting is pending.