MEMORANDUM

To: Tim Allen; USFWS, NWR System, Branch of Air Quality

From: Greg Wingfield, Mike George; USFWS NEFO

RE: Nebraska Draft Regional Haze State Implementation Plan

Date: December 22, 2010

This responds to your request for review of Nebraska’s Draft Regional Haze State 

Implementation Plan. In your e-mail of December 6, 2010, you specifically asked for our 

opinion on: (a) “the merits of [NDEQ] arguments” and (b) “are there options for utilizing the 

water and still maintaining ESA protection”.

The arguments given by NDEQ have some merit. However, the Platte River Recovery 

Implementation Program (PRRIP) inherently provides options to offset consumptive use that 

results in depletions to the river and jeopardizes endangered species. Additionally, it appears 

much of the information provided in NDEQ’s plan represents a worst-case scenario when 

describing offsets to water used by the Nebraska Public Power District (NPPD). While not 

inaccurate, the information tends to overstate implications of any new water use by NPPD. 

The statements in the plan regarding Nebraska state water law, the Cooperative Agreement that 

resulted in the PRRIP, and the ensuing commitments of the State of Nebraska via its 

participation in the PRRIP appear correct. The PRRIP was developed knowing that it would be 

untenable to prevent all new water uses. Thus, the approach was to devise ways to provide for 

the water-dependent needs of listed species while accommodating new uses. The method of 

accommodating uses is complex and detailed; methods are delineated in the respective states’ 

and federal agencies’ New Depletions Plans. In essence, there is an obligation to provide offsets 

for water uses above and beyond a 1997 baseline use. For your reference we are attaching 

PRRIP document language pertaining to accommodating new uses from the PRRIP’s purpose 

statement (attachment A, item 4 in bold) and from a description of the elements for overall 

PRRIP implementation (attachment A, item 3 in bold). 

Basically, the draft haze plan represents Nebraska’s water resources expert, the Nebraska 

Department of Water Resources (NDWR), advising its sister agency, NDEQ, that the 

environmental impacts to ESA-listed species from the act of mitigating environment impacts to 

air quality are onerous. Specifically, NDNR has indicated that “placing this additional demand 

on the basin jeopardizes Nebraska’s ability to meet commitments made to other states and the 

federal government ...” (page 53). Achieving the ESA recovery objectives of the PRRIP will be 

a challenging endeavor and it is in the Service’s interests to see Nebraska succeed. Thus we 

understand the basis of their position and advice to NDEQ (i.e. our conclusion that their 

argument has some merit). However, it appears the figures and calculations used to describe 

offset needs and compare them to other needs/obligations may portray a worst-case scenario. 
Memorandum - Tim Allen

December 22, 2010

Page 2 of 3

The draft haze plan omits several important considerations. First, offset needs for the PRRIP and 

IMPs may be able to be met concurrently or synergistically; the plan only hints at this by stating 

that these needs “may not necessarily be mutually exclusive”. The plan fails to note that the 

majority of the remaining 50,000-70,000 AF of PRRIP 1st Increment water objective will likely 

be met by re-timing (re-regulating) existing water supply from times when target flows are 

exceeded to times of shortage (i.e. not solely by obtaining “new” water via conservation or 

acquisition of existing water rights). Further, any commitment of the parties to proceed toward 

obtaining the estimates of water listed for a 2nd and 3rd Increment is speculative, at best. While 

the Service has calculated an average annual shortage to targets of approximately 430,000 AF, 

there is no certainty that future PRRIP increments will include an objective to achieve this 

magnitude of reduction to shortages. If such commitments are made, undoubtedly the three 

states would each contribute; because the plan is silent on this, one might assume incorrectly that 

it would only be Nebraska’s hardship to find the water.

Also, the example offset-driven acreage retirements provided by Twin Platte NRD likely do not 

represent the approach NPPD would take. The example uses an array of north/south sections 

immediately west of GGS so the stream depletion factors (SDF) vary widely (from 15 to 96%) 

and average 56%. There is no explanation or justification for this. Entities looking either to 

secure offsets (e.g. Central Platte NRD in their existing water banking program) or secure new 

supply for river flows (e.g. PRRIP as part of the 50,000-70,000 shortage reduction objective) are 

targeting irrigated land with higher SDFs. Presumably NPPD would use a similar approach, 

when possible, resulting in less acreage retired from irrigation. Accordingly, economic impacts 

from irrigated acreage retirements would be reduced proportionately. Finally, some of the 

statements about the economic impacts infer that NPPD would acquire the land in fee title, not 

just the water right for retirement (e.g. the $88,000,000 total cost for land acquisition).

It does not appear the plan has sufficiently considered all potential, feasible sources for this 

amount of water. You might want to get clarification on whether there are exceptions to the 

well-drilling moratorium in the Twin Platte NRD. Are there any industrial or commercial large 

capacity wells that could be acquired as part of the water supply or retired as part of the offsets? 

Are there potential deep-well ground water sources outside of the hydrologically connected area, 

but much closer (and much less expensive) than the example source of piping water from the 

Missouri River that is referenced? It almost seems like the Nebraska parties could be taking the 

approach of “where there is a will there is a way”, similar to how new agricultural, commercial 

or industrial water users would investigate possible sources to accommodate their needs (e.g. 

ethanol plants).

In summary, there is no question any new depletions to central Platte River flows would require 

offsets. Because of this, there is the possibility that accelerating actions to achieve air quality 

improvements would weaken Nebraska’s ability to meet its PRRIP obligations to improve Platte 

River flows on schedule. But we do not believe that it automatically follows that air quality 

improvements cannot be pursued because Nebraska simply could not do both. 
Memorandum - Tim Allen

December 22, 2010

Page 3 of 3

Attachment A

Excerpts from Program document sections on purpose and elements.

PROGRAM PURPOSES

A. The purpose of this Program is to implement certain aspects of the U.S. Fish and 

Wildlife Service’s (FWS’) recovery plans for the target species that relate to their associated 

habitats by providing for the following:

1. securing defined benefits for the target species and their associated habitats to assist 

in their conservation and recovery through a basin-wide cooperative approach agreed to 

by the three states and DOI;

2. providing ESA compliance2 for existing and new water related activities3 in the 

Platte River basin4;

3. helping prevent the need to list more basin associated species pursuant to the ESA; 

4. mitigating the adverse impacts of new water related activities on (1) the 

occurrence of FWS target flows (as described in Section III. E.1.a.) and (2) the 

effectiveness of the Program in reducing shortages to those flows, such mitigation to 

occur in the manner and to the extent described in Section III.E.3 and in the 

approved depletions plans; and

5. establishing and maintaining an organizational structure that will ensure appropriate 

state and federal government and stakeholder involvement in the implementation of the 

Program.

PROGRAM ELEMENTS

A. General Description

1. Elements. The Program has three elements: (1) increasing streamflows in the central 

Platte River during relevant time periods through reregulation and water 

conservation/supply projects; (2) enhancing, restoring and protecting habitat lands for 

the target species; and (3) accommodating new water related activities in a 

manner consistent with long-term Program goals.