Commissioners approve KXL road agreement

The Antelope County Board of Commissioners has approved a road-use agreement for the duration of potential construction of the Keystone XL Pipeline.

However, the board’s decision was neither quick nor unanimous, as the commissioners discussed the agreement for about an hour and 40 minutes during their nearly five-hour meeting, Tuesday, Aug. 4, at the courthouse in Neligh.

Board chair Charlie Henery and commissioners Eli Jacob and Carolyn Pedersen approved the agreement as presented, while vice board chair Regina Krebs and commissioner Dean Smith voted against it.

Before the board voted on the agreement, its members met with representatives of TC Energy – formerly TransCanada – and its Keystone pipeline project to discuss and finalize the 16-Page road-haul agreement.

TC Energy representatives have been meeting with the county road department for several months regarding the multiple road improvements they have committed to.

“We’ve gone over these roads extensively,” said Dan Forbes, permit supervisor for the pipeline project. “We’ve agreed to do the improvements on them.”

The TC Energy representatives have committed to the road improvements in phases, with the first one to start immediately and to be completed before winter, weather permitting.

Forbes noted the rest of the roadwork projects – he referred to them as “future roads” – would be finished during or after the installation of the pipeline.

“That would be done either during or after construction to make sure they’re equally or better than what we started with,” he said.

Henery asked the TC Energy representatives whether most or all of the first phase of road improvements could really be finished before this upcoming winter.

“It’s going to depend on the availability of your contractors that you hire to do it, too,” Henery said.

TC Energy representatives reiterated the plan is for the first phase of road improvements to start as soon as possible.

Henery asked county road superintendent Aaron Boggs his thoughts on the road-use agreement.

“We’ve done a lot of back-and-forth and negotiations,” Boggs said. “As far the road standpoint goes, we’re very confident and comfortable with what they’ve approached us with.”

Jacob made a motion to approve the agreement as presented. His motion was seconded by Pedersen.

Krebs voiced her displeasure at not having more time to look over the agreement before voting on whether to approve it or not.

When asked what she was concerned about in regard to the agreement, Krebs said, “The total cost of the improvements versus what we’re dealing with as a loss of revenue from the county on this.”

She acknowledged the commissioners have discussed the agreement for several months, but she wanted more time to look over the finalized copy, which included Exhibit A, a map of the county roads that will be improved by TC Energy.

“At the end of the day, I’ve had this information for 15 minutes,” Krebs said. “We haven’t even went through and discussed the future plans and the future reimbursements in any detail at all.”

She wanted to look over the agreement with the county road department to address questions she had on it.

“If this is the final agreement and this is what we’re looking at, I would like the one week to really sit down and analyze this and go through it,” Krebs said.

However, she acknowledged the board had already made a motion on the agreement and the motion had been seconded.

Pedersen asked Krebs what her concerns with the road-use agreement were.

“I’m just looking at the total project and what we’re upgrading,” Krebs said. “I just haven’t had a chance to look at this map and the upgrades that have been proposed in this.”

Smith noted he did not like approving the agreement when there is no time frame on the pipeline project.

Because of that open-endedness, he wondered whether the agreement would stay in effect indefinitely.

“There are just so many unknowns here,” Smith said. “When we have a road-haul agreement open, then they maintain those roads that are agreed to.

“That means they’re going to start maintaining these roads tomorrow, if this gets approved,” he said. “They’re going to start maintaining the roads tomorrow? Routine maintenance? Is that correct?”

Part-time road foreman Casey Dittrich noted the board has accepted maps like Exhibit A in the past and then the road superintendent had the authority to enter into portions of it.

“As far as when they enter into it, their Phase One – obviously they’re going to need more miles than what their list of Phase One is to be able to do the job,” Dittrich said. “They would have to present a Phase One to Aaron if the board gives him the authority to enter and exit that.”

Smith asked about approving the first phase of road improvements without having to approve the agreement.

Krebs noted the agreement would need to be approved for the first phase of road improvements to take place.

TC Energy representatives reminded the commissioners they plan on making improvements to the county roads as part of the agreement to support the pipeline installation.

These kinds of agreements are open-ended because they are used until all of the road improvements have been completed.

TC Energy representatives explained there are no end dates on the agreements because there always is some sort of maintenance after the work has been finished and before the roads are handed back to the county.

“It’s not so much an end date I’m looking at,” Smith said. “I’m looking at a start date. And you can’t give me a start date other than Phase One. That’s the only thing you can give me a start date on.”

He again expressed his unhappiness with how open-ended the agreement is as far as the road improvements are concerned.

“Are we prepared to have this be an open agreement for five years?” Smith said. “Maybe 15 months. Maybe that’s all it will be.

“But maybe it’s going to be five years,” he said. “If this is open for five years, that means they’re maintaining roads for five years.”

Smith was reminded by the TC Energy representatives that they start taking possession of roads when they start working on those roads.

They would work with the county road department to let it know when they are planning to start working on a particular stretch of road.

“I just think that if we can find something that works to move forward, that we’re going to get $4 million worth of improvements out of these guys before we find out if they can come through or not,” Dittrich said.

“I’m not trying to be on the other side of the fence,” he said. “I’m just trying to find a way forward.”

Dittrich asked the TC Energy representatives for an estimated completion date for the first phase of road improvements listed in the agreement.

Derek Montgomery, manager of workforce logistics and roads for TC Energy, noted all first-phase road improvements would be completed before the installation of the pipeline would begin.

“What if construction never starts?” Dittrich said of the pipeline project. “We need a date on the calendar.”

Dittrich suggested a completion date of sometime in December 2021 for the first-phase road improvements, which Montgomery was not opposed to.

“That’s a date we could commit to,” Montgomery said. “Again, I hope to have it done this year. I hope to be able to get out there as quickly as possible and get that done before winter.

“If I do not, the first thing I’m going to do, when we get after thaw of next year, is finish anything we didn’t get done, but our goal is to come out of here with this agreement and immediately go to work,” he said.

Jacob reminded the board he made a motion to approve the road-use agreement so work on the first-phase road improvements could be started immediately.

“They’re going to improve a lot of roads,” he said.

Henery asked for the commissioners’ votes on Jacob’s motion to approve the agreement as presented.

Dittrich wanted clarification on what the motion was for, which Krebs said was to approve the agreement.

“Is it the written part of the RUA?” Dittrich asked. “Because it should be done in two phases.”

“It’s approving the RUA with them starting on Phase One,” Smith said.

Dittrich noted the motion should emphasize the written part of the agreement.

“Then we should accept an Exhibit A,” Dittrich said. “We need to decide if that Exhibit A is Aaron’s or if we want to use theirs with all the colors or just their Phase One. We have three options on the table.”

Krebs again expressed her frustration with the lack of time she had to look over the agreement.

“We’ve gotten to a point where we need to get all the information on the table,” she said.

Dittrich gave a recommendation to the board.

“I think the best thing that you can do is to accept, when you’re comfortable, Exhibit A as a complete document and authorize Aaron to enter into a partial road-use agreement that everyone should look at today,” he said.

After the commissioners voted 3-2 to approve the agreement as presented, county clerk Lisa Payne clarified the motion the board had voted on.

“The motion was to accept the road-use agreement written out,” she said. “It didn’t say anything about Exhibit As or additional things like that.”

Smith noted there was a blank Exhibit A Page included in the agreement.

“That’s how we’ve always done it,” Payne said. “The road-use agreements always had Exhibit A with nothing on it.”

Smith argued the large map the blank Exhibit A Page was supposed to refer to did not say Exhibit A.

Payne pointed out the map was labeled as a road-haul map while Smith again argued it did not say Exhibit A.

“You are dealing with a company that has the ability to hire and pay for more legal consulting than this entire county if they pooled their money together,” Smith said.

“So, we need to have the residents of the county – the current residents and the future residents of this county – in our mind and protected,” he said.

Smith requested that Payne record his previous comments in the written minutes of the meeting.

“I always had assumed that the road map that was presented with the road-haul agreement went with the road-haul agreement,” Payne said. “That’s the only thing I stated.”

Dittrich noted if the approval of the agreement was for the written portion only, there was “no harm, no foul” and no changes to that part were needed.

He recommended the commissioners approve Exhibit A in a separate motion.

“I don’t think I’ve got an issue with the written portion of it,” Krebs said. “It’s going to be the exhibits.”

Pedersen noted Boggs has already gone through all of the planned county road improvements with TC Energy representatives.

“I don’t have a problem with Phase One and getting that done and approving the agreement itself,” Pedersen said. “If you want to add to it after this, after that motion, that’s fine.”

Pedersen made a motion to accept Exhibit A as presented by TC Energy to go along with the road-use agreement. Krebs seconded the motion.

Henery, Jacob, Krebs and Pedersen approved Exhibit A, while Smith voted against it.

Smith asked how many years have passed since the pipeline project had been proposed. The response he received was at least a decade.

“So, depending on what happens in the future and so on – this has went on for 10 years – it could go on for another 10 years,” Smith said.

“So, what we have just done – we have an open-ended road-use agreement that will go on for 10 years until the project is done,” he said.

Smith noted the next generation of commissioners will inherit the agreement if the pipeline project is not completed in at least another 10 years.

“It may go for 15 months, everything’s closed up, they’re out of the county and it’s done,” Smith said. “But we have a past history that it has taken 10 years.

“So, we’ve approved a road-use agreement that could go for any length of time, but there’s a chance – yeah, I’m not comfortable with that,” he said.

Smith expressed his appreciation for the improvements of the county roads listed in the agreement.

“If they want to do that on their dime, that’s a fantastic thing,” Smith said. “I think that’s great, but I guess … I’m having trouble wrapping my head around that one.”

Krebs made a motion to accept Exhibit A1, a map of the first-phase county road improvements. Jacob seconded the motion.

The motion included preconstruction roadwork to be done before the improvement projects begin.

Henery, Jacob, Krebs and Pedersen approved Exhibit A1, while Smith voted against it. Smith also requested his previous comments be recorded in the written minutes of the meeting.

Pedersen made the final motion of the meeting in regard to the road-use agreement, which was to authorize Boggs to act on the county’s behalf to work with TC Energy on modifications to the agreement, which would include but not be limited to:

-Entering and exiting portions of the agreement.

-Negotiating start dates and end dates for construction projects.

-Negotiating contracts for maintenance on county roads within the agreement and product issues or changes.

Jacob seconded Pedersen’s motion. Henery, Jacob and Pedersen approved the motion, while Krebs and Smith voted against it.

“Aaron’s always been very good about getting to us on what we need,” Henery said.