Adjustment board: Pipeline permit denied until proposed conditions are met

Holt County Board of Adjustment members unanimously upheld a previous decision, made by county supervisors, to deny a pipeline application permit, until TC Energy agrees to follow proposed conditions.

The decision was announced Thursday, when the board reconvened a meeting that started Oct. 30.

The meeting lasted approximately 45 minutes.

In February, Holt County Supervisors voted to deny the permit, until conditions laid out by the county planning commission are met, noting TC Energy must have easements to property involved and identify all private drain tiles.

During an Oct. 30 hearing, at the O'Neill Community Center, Patrick Pepper, a TC Energy attorney with the Omaha law firm MacGrath North, requested the board of adjustment approve the appeal.

On Thursday, Holt County Attorney Brent Kelly told board members they have three options: grant the permit as applied for, deny the permit or offer a variance.

"It's your prerogative which you do," Kelly said.

"I understand tiling is a major investment in the land so I would offer a variance," board member Barb Steskal said, "but there would be no guarantees that a fix to a tiled field would be sufficient."

Steskal offered a list of conditions TC Energy needs to meet before the permit will be approved, including:

• If a landowner has not disclosed tiling of a field, if it is found to be tiled, during construction, the pipeline route must be diverted around the field;

• Condemnation of easement or eminent domain is wholly resolved, up to and including any appeals to the U.S. Supreme Court;

• All funds have been allocated and paid to the landowners;

• U.S. Corps of Engineers regulation review, currently in progress, is completed and KXL pipeline is in compliance with the Clean Water Act;

• A proven plan, which allows successful and timely cleanup of a spill of pipeline contents into the Ogallala Aquifer, as well as any creeks, streams or rivers the pipeline crosses, or any creeks, streams or rivers drained into;

• An escrow account will be deposited in a Holt County banking facility, replenished by TC Energy, if funds should be drawn for such a clean up, to ensure the same monetary protection in the event of a subsequent spill;

• At the end of life of the pipeline, funds will be returned to the company, only after pipeline removal and restoration is complete;

• Funds will be in escrow to clean up a spill and cover loss of production in event of a spill;

• Relief from liability to the landowner, township, county and state must be resolved to preserve the economy of Holt County and Nebraska;

• Landowners, township, county and state will be provided liability insurance for the duration of the pipeline operation and such insurance be provided by the pipeline. Proof of insurance will be provided to Holt County Supervisors;

• All personal protection equipment will be provided to first responder units serving the county. Any and all initial and continuing training, deemed necessary by first responder units, will be funded by the pipeline company;

• Information of all possible contaminants, PPE and training must be completed before any content moves through the pipeline;

• First responders must be informed of all content flowing through the line at any given time. If makeup of the contents is altered, first responders must be notified 24 hours prior to alteration;

• Since a system to detect a slow leak is not in place, testing of wells, creeks, streams and rivers in the county, at regular intervals, by a certified lab, will be required. TC Energy will bear the cost. If contamination is suspected by landowners, veterinarians, agronomists or medical personnel, testing may be requested, with TC Energy covering the cost;

• Escrow funds must be in place to cover removal of the pipeline and reclamation of the easement and any other lands disturbed during removal of the pipeline;

• Crossing of currently-established pastures, irrigated parcels and land that would be economically or operationally hindered by the crossing of a pipeline is prohibited. The pipeline must be diverted to a perimeter of said parcel;

• The pipeline must not cut through established shelter belts, as it lessens its effectiveness.

• All pipe, new and stored, must be inspected and found to be free of defect before placed in the ground;

• If local electric companies are used during construction, the local company must show county supervisors their policy reflects any reduction of service necessary will reduce energy to the pipeline before any reduction to agriculture is made;

• Cleanup of any spill must be free of litter, including concrete or rock and must be restored with soil consistent to pre-spill soil along the pipeline easement;

• An escrow account will fund any increased costs to law enforcement during pipeline construction, including security deemed necessary by the county for any work camps or temporary residences of pipeline employees, as well as any costs associated with an increase in crime;

• Reclamation of easement of any lands disturbed by a spill, shall be considered complete, only on inspection and approval by the natural resources district, ensuring reclamation is successfully restored, including top soil, underlying soil and native grasses and plants. Furthermore, the Holt County Weed Board will inspect the land during reclamation and make sure noxious weeds are eradicated;

• Any wells necessary for reclamation will require approval in the manner all wells in the county are registered and must be approved before the construction of the pipeline;

• Easement agreements will be changed from a perpetual easement to an easement with a sunset, not to exceed 30 years. Easements may not be sold to an entity not wholly owned by U.S. citizens;

• The pipeline, or easement, may not be used to transport any water from the Ogallala Aquifer to outside the state of Nebraska or to transport water to a holding area, that could allow said water to be transported outside Nebraska; and

• Pipeline cannot employ and must guard against and be liable for any instrument or technology that could place dangerous or explosive devices in the pipeline, including terrorist attacks.

Steskal said all the conditions are "what I consider the county officials, the zoning officials, should do to protect the agriculture in this area, to protect the economics of this area."

Board of Adjustment chairman, Gene Kelly, said some of the conditions are currently in place in county zoning regulations.

Jim Powers, a TC Energy attorney, said the county cannot go beyond the requirements of its regulations.

"It's tough to get hit cold with all this, and you hear all the legitimate concerns. This is the end of a long process," he said.

When questioned why TC Energy selected this route, instead of mirroring the Keystone I route, in eastern Nebraska, Powers said, "That's a lot more land to disturb."

Steskal's motion was seconded by Mark Rossman and unanimously passed.