The District Courtroom at the Holt County Court House was overflowing with concerned citizens voicing their opposition to the proposed KXL pipeline that has an extensive route through the County. The Supervisors voted unanimously to deny TransCanada's pipeline construction permit.
TCE Energy spokes people led off the public hearing on Friday, Feb. 28.
Patrick Pepper, a lawyer for TCE, stated that concerning the two conditions that the planning and zone commission laid out. "As of last week Transcanda has acquired all the right of way necessary that should fill the requirements for the first part of the permit set forth by the planning commission and for the second part of the requirement asks that all private drain tiles should be identified and that we have laid out in front of you for all the known drain tiles." said Pepper.
Pepper said, "It is impossible to comply with the County attorneys interpretation of the statute because it's impossible for us to identify or locate all the drain tiles.
"There may be people who don't know where their drain tiles are and there may be people who are unwilling to provide that information," said Pepper.
He said we would have to explore our options, which include our legal options.
To put a construction on this regulation that requires an impossibility leaves us with very few options," Pepper said. "It is perilously close to a regulatory taking that is something we will certainly need to evaluate. I'm sure your county attorney can give you great advice on that. But, it's very dangerous and limits our options quite considerably."
Gary Salsman, project director of Keystone XL, noted that we have a presidential permit from Trump, a permit from Nebraska that was unanimously upheld by the Nebraska Supreme Court last summer and, more recently, we acquired the necessary permits to cross federal land in Montana.
"We still have some legal matters in Montana to get through and we have our 404 authority need from the Corps of Engineers to cross rivers and streams but in anticipation of getting those, we have started preconstruction activities, including in Nebraska," said Salsman.
"Based on what was reported last year, TC Energy will be one of the largest taxpayers in Holt County. More than $3 million in property taxes in the first year of operation. That equates to approximately $28 million over 15 years," Salsman said.
He also said, TC Energy will invest: $1.5 million road upgrades in Holt County, $1 million – Stuart Napier Bridge
"The need for this project and the benefits it will bring to the United States remains as true today as when we started this project ten years ago. We have achieved several key milestones this past year that has put us in a position to start pre-construction and construction activities this year," Salsman said.
The remainder of the hearing was spent with the supervisors listening to landowners and concerned citizens voicing their opposition to the pipeline based on environmental concerns as to the safety of the pipeline and in the event of a leak the potential for groundwater contamination by the product being pumped through the proposed TCE pipeline. Besides the environmental concerns of the project, a lot of the crowd took issue with the way the ground was being taken through easements which most of the crowd thought was not right as many of the people said the pipeline brings no benefit to them or the country so why should a foreign company get to take the land from them. Patrons also voiced their concern that at some point the pipeline when finished pumping oil may be used to pump water from the aquifer which, as the crowd voiced was their lifeblood.
Holt County Attorney Brent Kelly said that TransCanada might ask a Court to overrule the will of the Zoning Board, the Board of Supervisors, and the public.
"I view this as the least desirable option, as I think it will be the most expensive and time-consuming for both the County and TransCanada. The second option would be for TransCanada to ask the Board of Supervisors to reconsider their position using the same evidence, or perhaps additional evidence. I think we need to explore whether this option is legal and proper. The problem with requesting a "do over" is fairness to the public, and determining at which point of the process you start with again. Does TransCanada go before the Zoning Board again, or go straight to the Board of Supervisors? Will there be another public hearing, after giving appropriate notice? How many "do overs" does TransCanada get? Do we just do this every few months until they eventually get enough votes?
The final option is for TransCanada to request a variance. The granting of variances is specifically provided for within Holt County's zoning regulations. A variance can be granted upon such terms and conditions as the Zoning Board and the Board of Supervisors see fit. The local boards could say, for example, TransCanada will be granted the variance if:
1. They follow the sound judgment of the board of sworn appraisers and pay the landowners what is owed.
2. They sign a satisfactory road haul agreement with the County.
3. They post a bond to cover the County for expenses incurred as a result of the pipeline construction or operation.
4. They agree to never use the pipeline to pump Holt County's water away from her citizens.
5. They agree to reasonable setbacks so that the pipeline avoids contaminating existing water wells.
I believe this option, the variance option, is the best for Holt County and for TransCanada.