Kinder Morgan reacts to newest anti-PHP lawsuit

A lawsuit alleging Kinder Morgan has violated the Endangered Species Act with its approach to building a natural gas pipeline through the heart of the Texas Hill Country has added new plaintiffs.

The Hays County Commissioners Court voted unanimously Jan 28. to join the suit, which was filed by the Barton Springs Edwards Aquifer Conservation District (BSEACD). The cities of Austin and San Marcos are on board, and the Kyle City Council voted to join the effort at its regular meeting Feb. 4. The law firm of Braun & Gresham will represent Kyle in the litigation, and council committed $5,000 toward the effort. The Hays County vote also authorized devoting $75,000 to the legal fight.

Pct. 4 Commissioner Walt Smith, whose jurisdiction much of the proposed route of the Permian Highway Pipeline (PHP) would cross, predicted the action when he issued a press release days ahead of the court’s vote.

Smith noted that the suit also acknowledges the fact that because the pipeline is considered infrastructure, the company building it has the power of eminent domain. “The action taken by the court today will continue our fight on behalf of the private property rights of the citizens of Hays County,” he said.

An earlier action including many of the same plaintiffs that was filed in the spring of 2019 targeting the powerful Railroad Commission (RRC), which oversees projects like pipelines, was thrown out within months by a district judge.

In addition to Kinder Morgan, the lawsuit alleges the U.S. Fish and Wildlife Service (USFWS) and the U.S. Army Corps of Engineers (USACE) have violated terms of the Endangered Species Act (ESA) and its protections, which are supposed to extend to each listed species.

Repeating claims made by the BSEACD, Smith charged that Kinder Morgan’s refusal to get a biological opinion from USFSW or to create a habitat conservation plan in its construction of the 42-inch pipeline, which would run from the oil fields of west Texas to near Houston, violated the terms of the ESA.

However, Kinder Morgan Vice President Allen Fore told the Hays Free Press that the company does intend to comply with the ESA and to obtain both a biological opinion from the USFWS as well as an authorization from USACE “particular to jurisdictional waters.”

“Part of the analysis will be impacts” to species including the golden-cheeked warbler and “some salamanders,” he said. However, he declined to provide details on how mitigation would work, in particular with regard to aquatic species. “There will be definitions and we’ll be discussing that once those authorizations are in place,” Fore said. “I can’t comment specifically because those authorizations are still pending … once that’s issued we will indicate precisely what we’re going to do and where we’re going to be doing it. We’ve always known that mitigation would be part of the process.”

Fore maintained that Kinder Morgan has “always said we’re abiding by all the rules and regulations of fish and wildlife and the migratory bird act, all the requirements.”

Central Texans – including those who own land along the proposed route, first learned of the pipeline plans in late 2018. Smith called natural gas a “toxic and flammable substance,” and the proposed route as crossing some of “the most ecologically sensitive features in Central Texas and the Hill Country.”

Pct. 3 Commissioner Lon Shell also commented on the action. “Our natural resources – our aquifers, rivers, creeks and wildlife – will be endangered by the pipeline’s construction, and should a leak or explosion occur the results would be devastating,” he said.

At peak production, the pipeline would carry up to 2 billion cubic feet of natural gas per day.

As proposed, the route would cross the recharge zones of both the Edwards and Trinity aquifers and come within a mile of the artesian spring that forms Jacob’s Well.

“The proposed route does not require approval from any state agency even though it crosses the Edwards and Trinity aquifers, which supply drinking water for over two million people,” Smith said. “The pipeline will also cut directly through the habitat of endangered species such as the Barton Springs salamander and the Austin Blind Salamander, among others.”

Fore confirmed that right-of-way has been secured for 100 percent of the 42-inch pipeline’s 430 mile length and downplayed the use of eminent domain, saying that a “significant number” of cases in which the company has ended up in court with landowners involved valuation, not actual access. The company has already paid out millions to landowners in Blanco County who challenged the valuation. Fore said the company is acting as it has historically, assessing the project’s impact on only the value of the 50-foot permanent easement, not the property as a whole. He discounted the possibility that the presence of the easement would hamper development, pointing to areas near Houston where “you see development coming right up to our right-of-way. It’s not impeding development at all.”

Moreover, he said some of the more than 160 adjustments the company has worked out with landowners have been for future plans – whether it’s the planned location for a family cabin, or for a new subdivision. “We make an adjustment because they have plans.”

Fore said he expects federal authorizations to be resolved in the first quarter of this year and that construction, once it begins, should only take about a year to complete.

He said the PHP’s route has been divided into five segments and each will be constructed at the same time, facilitating a short schedule, and that each segment will have its own team.

“Product will flow as soon as everything is tied in,” he said, though restoration of the ground above the line may take longer. For example, if a landowner wanted the easement seeded with a particular type of grass and the initial planting didn’t take, more seeds would be put out.

He also said it will be possible that the pipeline could supply not only its end destination in the Houston area but points along the way – for new subdivisions or manufacturers. “It’s absolutely a possibility. We have two delivery points now in Caldwell County.”

As the area continues to develop he expects the “major new source of natural” gas the PHP will provide will be taken advantage of. “I’d be surprised if that didn’t happen.”

Though the company has long-term contracts for product the PHP will move, “we can have additional space on the line for additional growth.”

“We’re building it thinking 15, 20 years down the road,” Fore said. “We’re trying to think of the need for the project right now but also in the future ability for local development or manufacturers needing a fuel supply, that this energy supply going through has longterm value.”

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