It's been almost five years since Loup Power District closed the off-road trails at its Headworks Park near Genoa, and the long wait has a lot more to do with birds than you might think.
The off-highway vehicle (OHV) area, which was once a popular destination for Nebraskan motorcyclists and all-terrain vehicle operators, has been closed since 2016. At the time, Loup closed it because the Nebraska Off Highway Vehicle Association had recently dissolved and the power district was worried about liability issues.
Now, however, how and when Loup reopens the OHV area may depend on getting its recreation management plan approved. The recreation management plan is in limbo right now, though, because it's part of Loup's hydroelectric facility license. That's where the birds come in.
For the last seven years, Loup has been locked in something of a stalemate with the Federal Energy Regulatory Commission (FERC) and the U.S. Fish and Wildlife Service (FWS) over the operation and maintenance license for its hydroelectric system. FERC is responsible for issuing the license and FWS weighs in heavily.
Looking at the ILP documents reveals that most of Loup, FERC and FWS's differences have to do with how much water should flow through the hydroelectric system.
FERC and FSW want Loup to restrict the flow in the name of protecting three species of bird -- whooping crane, interior least tern and piping plover -- and the pallid sturgeon fish species. Loup argues the restrictions would be excessive and more expensive than the power district could afford.
Loup received its original license in 1934. Typically, the licenses are good for several decades; FERC issued a new license in 1982, which expired in 2014. Since then, Loup has operated the hydroelectric facility under an annual license while it tries to hash out differences with FERC and FWS over the new long-term license.
The licensing process -- formally known as the integrated licensing process (ILP) -- is incredibly complex and usually takes five or six years. Loup formally started the ILP in 2008, six years before its long-term license was due to expire.
The first big bump in the road came in the middle of 2014, when Loup took issue with FERC's draft environmental assessment (EA) which -- among many other things -- talked about the birds.
Loup objected to the interpretation of the research FERC used to decide what is necessary to preserve habitat for those three bird species. In 2015 and 2016, FWS draft and final biological opinions drew similar criticism from Loup.
Then, on May 22, 2017, FERC took what is supposedly the last ILP step: Issuing a license order. Less than a month later, Loup filed a request to have the license reheard, for the same reasons it objected to the FWS biological opinion documents and FERC draft environmental assessment.
After some back and forth, FERC denied Loup's request for a rehearing. Things really ground to a halt after that when Loup appealed FERC's denial with the 8th U.S. Circuit Court of Appeals in 2018.
Immediately after filing its appeal, Loup got the circuit court to put the appeal on hold -- where it has stayed since -- to give Loup, FERC and FWS time to try and work out their differences outside of court.
"If there is an agreement, (Loup) would make a filing asking the Commission to amend the license in accordance with the agreement," FERC Media Relations said in a Thursday email to the Telegram.
According to FERC Media Relations, the Commission's policy has been that a limited settlement -- which would be the case here -- only opens the subjects covered by it.
While the license remains in limbo, Loup President/CEO Neal Suess said it's difficult for Loup to move forward with certain parts of its recreation management plan. In 2018, Suess said, things were moving in the direction of reopening the facility. Then, flooding in spring 2019 threw a huge wrench in things, thanks to all of the damage repair work and preventative construction projects that had to take place in its aftermath.
The hydroelectric system as it exists now, and as it will exist once Loup is done with all of the flood-related projects, may look different than the one upon which the entire 2017 license order was based.
A case in point is a spillway project, proposed as a result of the flooding, that would redirect high water flows back to the Loup River from the Loup Canal, preventing future damage to the canal and surrounding property.
"If we end up doing this with the spillway and FERC decides that, because of that piece, it changes the (hydroelectric system), they would require us to file a license amendment," Suess said.
Many of Loup's current decisions are made with that possibility in mind. Suess explained the power district fears that such an amendment would reopen the entire license and allow additional interpretation of the flow requirements -- something Loup wants to avoid.
Molly Hunter is a reporter for The Columbus Telegram. Reach her via email at firstname.lastname@example.org.