Pipeline opponents target federal agencies and ESA

Kyle isn’t going it alone.

The city council’s recent decision to notify two federal agencies of its intent to sue for failing to hold Kinder Morgan accountable to the Endangered Species Act (ESA) was mirrored in actions by the cities of Austin and San Marcos, as well as the Barton Springs Edwards Aquifer Conservation District (BSEACD) and the Wimberley Valley Watershed Association (WVWA).

Kinder Morgan is planning to build the Permian Highway Pipeline (PHP), a 42-inch pipeline that would carry natural gas from West Texas fields to near Houston. The proposed route would bisect the Wimberley Valley, cross the Edwards Aquifer Recharge Zone and the Trinity Aquifer, come within a mile of Jacob’s Well and cross the Blanco River twice in the Kyle area. Together, the Edwards and Trinity aquifers supply drinking water for more than two million people.

The route also cuts through the established habitat of endangered species including the Golden-cheeked Warbler, the Texas Blind Salamander and several more.

Under state law, pipelines are considered infrastructure, and are only subject to regulation by the Texas Railroad Commission (RRC), which does not address environmental concerns.

On Oct. 16, attorney William S. Eubanks sent a letter to the U.S. Army Corps of Engineers (USACE) and the Fish and Wildlife Service (USFWS), along with Kinder Morgan VP Allen Fore and Ryan D. McCarty, Acting Secretary of the Army, informing them of a 60-day intent to sue.

“We hereby notify you of violations of the Endangered Species Act (ESA) in connection with the Permian Highway Pipeline that Kinder Morgan intends to construct in the near future,” Eubanks’ letter says. “This pipeline and its associated construction and operation activities will result in serious adverse impacts to federally endangered and threatened species and their habitat .. (which includes) at least seven aquifer-based species in the vicinity of the pipeline’s proposed route.”

Allen Fore, Kinder Morgan vice president for Public Affairs, reponded Tuesday, saying, “We look forward to continuing to work with the city of Kyle and all stakeholders as our project moves forward.” Fore made no other comments regarding the notifications to the agencies.

Eubanks said in his letter that it appears Kinder Morgan does not intend to seek either an incidental take permit for the pipeline nor to prepare a habitat conservation plan. “Rather, Kinder Morgan intends for the U.S. Army Corps of Engineers to utilize the Section 7 consultation process of the ESA to address all incidental take associated with the pipeline including for uplands” not subject to the Clean Water Act that “is expressly limited to ‘navigable waters’ which includes wetlands and other ‘waters of the United States’ but does not include uplands.”

Such a course of action  would “violate various provisions of the ESA,” Eubanks wrote, and would also “impose obligations under other federal laws, including the National Environmental Policy Act (NEPA).”

He goes on to charge that in the absence of a “legally adequate biological opinion” and written incidental take statement, “any activities likely to result in incidental take of members of listed species are unlawful” and that “anyone who undertakes such activities, or who authorizes such activities, may be subject to criminal and civil federal enforcement actions, as well as civil actions by citizens or others for declaratory and injunctive relief.”

“It is beyond legitimate scientific dispute that Kinder Morgan’s construction and operation of its large pipeline through these sensitive areas will pose a serious threat to these aquifers and the endangered and threatened species that live there,” Eubanks told the Texas Real Estate Advocacy and Defense Coalition (T.R.E.A.D.), a bi-partisan group formed after Kinder Morgan announced its PHP plans.

“As a result, there are several legal obligations that the USACE, USFSW and Kinder Morgan must satisfy to ensure compliance with the ESA, the Clean Water Act and the NEPA.”

He also said the new notice of intent “asserts that the aquifers … are under direct threat by the pipeline” and that Kinder Morgan “has no intention of making public its plans to mitigate the damage caused by this pipeline.”

T.R.E.A.D. spokesperson Elyse Yates noted that, at this point, “we are dealing with a known entity,” adding that “Kinder Morgan chose this route before hiring an environmental consultant, and refuses to make its internal environmental studies public. We have no idea what the company knows about the impact of the pipeline on the region’s water quality and endangered species. It is simply not enough for them to tell us to trust them.”

Several cities including Kyle, some school districts and conservation groups filed suit against the energy giant in the spring alleging that the limited oversight by the RRC was unconstitutional. That was struck down by a judge but has been appealed.

More recently, Kyle agreed to a settlement with Kinder Morgan in a separate legal action. Though the company won the right to proceed with construction, it promised that the pipeline would never be converted to carry crude oil.

Because pipelines are considered infrastructure projects, companies that build them have the power of eminent domain. The PHP proposal brought together private property advocates and environmentalists, two sides that have often been at odds.

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