NOTICE OF PUBLIC HEARING
Notice is hereby given that the Little Blue Natural Resources District (LBNRD) will hold a public hearing Thursday, February 17th, 2022, at 5:00 p.m. in the LBNRD boardroom, located in Davenport, NE. The purpose of the hearing is to change several rules pertaining to the “Groundwater Management Rules and Regulations”.
Firstly, rule 2.12.1 concerning soil sampling requirements will change the need for farm operators operating in Level I areas of the district from requiring “one (1) soil sample for each 80 acres of farm operation” to “one (1) soil sample for each 80 acres of a designated demonstration field”.
Secondly, it is proposed to change the definition of 1.13 DEMONSTRATION FIELD (water quality) to include soybean fields in an attempt to keep soil reporting continuous on one field. It is also proposed to amend rule 6.1.1.2 to change operator training from “required” to “encouraged” and to strike rule 6.1.1.2.1 which states that operator training must be renewed every four (4) years.
Lastly, in “Chapter 12 – Violations, Enforcement & Penalties”, it is proposed to amend rule 12.2.2 from having three (3) days for a person to request a hearing before the board to ten (10) days.
The full text of the proposed rule changes can be found on the LBNRD website at littlebluenrd.org.
LBNRD office: 100 East 6th street, Davenport, Nebraska, 68335. (402) 364-2145.
RULE CHANGES FOR PUBLIC HEARING — FEBRUARY 17TH, 2022
RULE 2.12.1 currently reads:
Any farm operator who intends to plant corn, sorghum or forage sorghum in the ensuing crop year on a field larger than ten (10) acres is required to collect a minimum of one (1) soil sample for each 80 acres of farm operation, and have it analyzed for organic matter and residual soil nutrients.
RULE 2.12.1 proposed change:
Any farm operator who intends to plant corn, sorghum or forage sorghum in the ensuing crop year on a field larger than ten (10) acres is required to collect a minimum of one (1) soil sample for each 80 acres of farm operation from a designated demonstration field, and have it analyzed for organic matter and residual soil nutrients.
DEFINITION OF DEMONSTRATION FIELD currently reads:
DEMONSTRATION FIELD (water quality) means an operator’s largest irrigated field as delineated in the Farm Service Agency (FSA) cropping plan records, or other field with specific management challenges as agreed to by the District, in which the operator intends to plant corn, milo, or forage sorghum in the ensuing crop year. If the operator does not have any irrigated row crop fields, the Demonstration Field shall mean the largest dryland field as delineated in the FSA cropping plan records, or other field with specific management challenges as agreed to by the District, in which the operator intends to plant corn, milo, or forage sorghum in the ensuing crop year. An irrigated Demonstration Field for water quality shall be 5 acres in size or larger, a non-irrigated Demonstration Field for water quality shall be 10 acres in size or larger.
DEFINITION OF DEMONSTRATION FIELD proposed change:
DEMONSTRATION FIELD (water quality) means an operator’s largest irrigated field as delineated in the Farm Service Agency (FSA) cropping plan records, or other field with specific management challenges as agreed to by the District, in which the operator intends to plant corn, soybeans, milo, or forage sorghum in the ensuing crop year. If the operator does not have any irrigated row crop fields, the Demonstration Field shall mean the largest dryland field as delineated in the FSA cropping plan records, or other field with specific management challenges as agreed to by the District, in which the operator intends to plant corn, milo, or forage sorghum in the ensuing crop year. An irrigated Demonstration Field for water quality shall be 5 acres in size or larger, a non-irrigated Demonstration Field for water quality shall be 10 acres in size or larger.
RULE 6.1.1.2 currently reads:
Operator training and certification is required for owners and operators who actively farm within designated Water Quality Sub-Areas. These persons may include but not limited to operators, farm managers, commercial applicators, operators of lawn service companies, operators of golf courses, operators of sod farms, and anyone engaged in the application of manure/bio-solids/bio-liquids on five (5) acres or more. Within two (2) years following the designation of a Level II Water Quality Sub-Area, all operators of land in a new designated sub-area who make the day-to-day decisions about the operations of agricultural lands of ten (10) acres or more and are engaged in the use, application and storage of nitrogen fertilizers and/or irrigation management in the sub-area must attend a Natural Resources District approved training session and be certified by the District.
RULE 6.1.1.2 proposed change:
Operator training and certification is required encouraged for owners and operators who actively farm within designated Water Quality Sub-Areas (Hastings sub-area will still be required to complete operator training). These persons may include but not limited to operators, farm managers, commercial applicators, operators of lawn service companies, operators of golf courses, operators of sod farms, and anyone engaged in the application of manure/bio-solids/bio-liquids on five (5) acres or more. Within two (2) years following the designation of a Level II Water Quality Sub-Area, all operators of land in a new designated sub-area who make the day-to-day decisions about the operations of agricultural lands of ten (10) acres or more and are engaged in the use, application and storage of nitrogen fertilizers and/or irrigation management in the sub-area must attend a Natural Resources District approved training session and be certified by the District.
RULE 6.1.1.2.1 currently reads:
Training and certification must be renewed every four (4) years.
RULE 6.1.1.2.1 proposed change:
Training and certification for Hastings sub-area farmers must be renewed every four (4) years, completed by April 1st.
CURRENT CHAPTER 12 reads :
12 CHAPTER 12 – VIOLATIONS, ENFORCEMENT & PENALTIES
12.1 The District shall enforce the provisions of the Groundwater Management and Protection Act, and all rules, orders and regulations adopted pursuant thereto through the issuance of a notice of alleged violation and/or through the issuance of cease and desist orders issued, in accordance with the procedures hereinafter set forth, and by bringing an appropriate action for enforcement of such orders in the District Court in the county in which the violation occurs.
12.2 A notice of alleged violations and/or a cease and desist order may be issued for failure to comply with any provisions or requirements of the Groundwater Management and Protection Act, these rules and regulations, or of State law in accordance with the following procedures.
12.2.1 Any violation, whether it be through general administration of District Rules or a report by the public of suspected violation, shall be verified by an inspector within 48 hours, exclusive of holidays and weekends. If required, the inspector shall notify the violator of the need to complete an inspection for verification of statute or rule compliance. An inspection report shall be provided to a compliance officer, who shall review and verify the inspector’s findings.
12.2.2 The compliance officer shall notify the appropriate landowner or operator of any non-compliance found, with an official request that the violation be corrected or with cessation of actions that created the violation. The compliance officer will provide recommendations on how the violation can be corrected and shall set a deadline for when corrective actions shall be completed. The notification shall also be provided to the violator that if corrective action is not taken by the specified deadline, the violator shall have ten (10) days to request to be heard before the Board of Directors.
12.2.3 If such landowner or operator disagrees with the findings and recommendations of the compliance officer, and requests an opportunity to be heard before the Board of Directors. S such opportunity to be heard will be advertised and conducted at the next regular Board of Director’s meeting if possible. Following the opportunity to be heard, the Board of Directors shall decide if in fact, a violation has occurred. If a violation has occurred, the Board shall issue a notice to the violator that if the violation is not corrected in three days, a cease and desist order will be issued.
12.2.4 If the violation is not corrected in the time specified in the Cease and Desist Order, the Board will commence an action in the District Court of the County in which the violation has occurred pursuant to State Statute §§ 46-707 and 46-745.
12.3 Statute § 46-745 partially states any person who violates a cease and desist order issued by a district pursuant to section § 46-707 shall be subject to a civil penalty of not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000) for each day an intentional violation occurs. In assessing the amount of the civil penalty, the court shall consider the degree and extent of the violation, the size of the operation, whether the violator has been previously convicted or subjected to a civil penalty under this section, and any economic benefit derived from noncompliance.
12.4 In addition to the authority in Sections 12.1 and 12.2 of this section, and notwithstanding any other provision of these Rules and Regulations, the District may impose a penalty on any person who violates any control required herein. Such penalties may include, but not be limited to, a reduction in whole or in part, of any current or future allocation of groundwater for a period determined by the Board, a reduction in whole or in part, of the number of certified irrigated acres in subject tracts, a reduction in carry-over groundwater allocation, the requirement of additional educational requirements for the person, and/or ineligibility for any District programs and services. In addition, if a flow meter is not installed by September 15, 2018, the penalty for all acres served by the unmetered well will be the loss of one-half (1/2) of the allocation for those acres. If a flow meter is not installed by January 1, 2019, the penalty for all acres served by the unmetered well will be the loss of all of the allocation for those acres served by the unmetered well.
PROPOSED CHANGES TO CHAPTER 12:
12 CHAPTER 12 – VIOLATIONS, ENFORCEMENT & PENALTIES
12.1 The District shall enforce the provisions of the Groundwater Management and Protection Act, and all rules, orders, and regulations adopted pursuant thereto through the issuance of a notice of alleged violation and/or through the issuance of cease-and-desist orders issued, in accordance with the procedures hereinafter set forth, and by bringing an appropriate action for enforcement of such orders in the District Court in the county in which the violation occurs.
12.2 A notice of alleged violations, a notice of intent to issue a cease-and-desist order, and a cease-and-desist order may be issued for failure to comply with any provisions or requirements of the Groundwater Management and Protection Act, these rules and regulations, or of State law in accordance with the following procedures.
12.2.1 Any violation, whether it be through general administration of District Rules or a report by the public of suspected violation, shall be verified by an inspector within 48 hours, exclusive of holidays and weekends. If required, and pursuant to Neb. Rev. Stat. § 2-3232, the inspector shall notify the violator of the need to complete an inspection for verification of statute or rule compliance. An inspection report shall be prepared by the inspector and provided to a compliance officer, who shall review and verify the inspector’s findings.
12.2.2 The compliance officer shall notify the appropriate landowner or operator of any non-compliance found with a “Notice of Intent to Issue a Cease-and-Desist Order” (“Notice”). The Notice shall specifically identify the violation and notify the landowner/operator that a cease-and-desist order will legally prohibit his/her irrigation operations. The Notice shall further advise the violator that they are entitled to a hearing upon the District receiving a written request for a hearing within ten (10) days of the receipt of the Notice and that unless such a request is timely received, the cease-and-desist order shall be issued. The Notice may be delivered to the violator by First Class United States Mail, certified mail, or by hand delivery. With an official request that the violation be corrected or with cessation of actions that created the violation. The compliance officer will provide recommendations on how the violation can be corrected, and shall set a deadline for when corrective actions shall be completed. Notification shall also be provided to the violator that if corrective action is not taken by the specified deadline, the violator shall have ten (10) days to request to be heard before the Board of Directors.
12.2.3 If such landowner or operator provides a timely written request for a hearing, the Board of Directors shall schedule such hearing within 30 days or at such time as is mutually agreeable. The Board of Directors may appoint a “hearing officer” to conduct the hearing and they shall receive all relevant information from the compliance officer and from the landowner or operator. The only information received at the hearing shall be considered in determining whether a violation of the District’s rules has occurred and the District shall afford the landowner or operator due process prior to rendering its decision. If the information presented to the Board of Directors shows a violation of the rules has occurred, the Board shall issue a cease-and-desist order. The cease-and-desist order shall be in writing and delivered to the landowner or operator via First Class United States Mail and certified mail. The cease-and-desist order may be lifted by order of the Board upon the violator coming into compliance with the rules. disagrees with the findings and recommendations of the compliance officer, and requests to be heard before the Board of Directors such opportunity to be heard will be advertised and conducted at the next regular Board of Director’s meeting if possible. Following the opportunity to be heard, the Board of Directors shall decide if in fact a violation has occurred. If a violation has occurred, the Board shall issue a notice to the violator that if the violation is not corrected in three days, a cease and desist order will be issued.
12.2.4 If the violation is not corrected in the time specified in the Cease-and-Desist Order is subsequently violated, the Board will commence action in the District Court of the County pursuant to Neb. Rev. Stat. § 46-745. in which the violation has occurred pursuant to State Stature § 46-707 and 46-745.
12.3 In addition to the authority in Sections 12.1 and 12.2 of this section, and notwithstanding any other provision of these Rules and Regulations, the District may impose a penalty on any person who violates any control required herein. Such penalties may include, but not be limited to, a reduction in whole or in part, of any current or future allocation of groundwater for a period determined by the Board, a reduction in whole or in part, of the number of certified irrigated acres in subject tracts, a reduction in carry-over groundwater allocation, the requirement of additional educational requirements for the person, and/or ineligibility for any District programs and services. In addition, if a flow meter is not installed by September 15, 2018, the penalty for all acres served by the unmetered well will be the loss of one-half (1/2) of the allocation for those acres. If a flow meter is not installed by January 1, 2019, the penalty for all acres served by the unmetered well will be the loss of all of the allocation for those acres served by the unmetered well.