Judge’s order clears the way for Hill Country pipeline construction to begin ‘immediately’

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AUSTIN (KXAN) — An order from a federal judge has cleared the way for Kinder Morgan to begin construction of the Hill Country portion of Kinder Morgan’s Permian Highway Pipeline.

Several Central Texas government entities tried unsuccessfully to place a temporary restraining order on the construction of the Hill Country stretch of the 430-mile natural gas pipeline slated to run across the state.

The order came Feb. 14 from U.S District Court Judge Robert Pitman of the Western District of Texas, Austin Division. The order states that “Kinder Morgan intends to begin construction immediately, first by clearing the land.”

Information in this court document indicates that Kinder Morgan will need to move quickly to begin clearing the land. The order also notes that Kinder Morgan is not allowed to clear vegetation between March 1 and July 31 in habitat areas for the endangered golden-cheeked warbler.

A photo of a golden-cheeked warbler. (Courtesy Texas Parks and Wildlife Department.)

Kinder Morgan has told KXAN recently that it hopes to have the Permian Highway Pipeline in service by 2021. We have yet to hear from the company about their timeline for construction in the Hill Country. Construction on other parts of the pipeline has already begun, but the Hill Country portion had not started due to pending federal permits and public backlash about the impacts of the pipeline there.

The order Friday revealed that on Thursday Kinder Morgan got authorization from the U.S. Army Corps of Engineers to build the pipeline through Central Texas. The authorization includes some measures the company is being asked to take to reduce the impact on endangered species such as the limitations on clearing plants in the warbler habitat.

The order the judge issued Friday was in response to legal action from several local governments opposing the pipeline.

The City of Austin, the City of San Marcos, Travis County, Hays County, the Barton Springs Edwards Aquifer Conservation District and several individuals are suing Kinder Morgan in federal court over the Permian Highway Pipeline’s potential impact on endangered species. They had asked Judge Pitman to grant a temporary restraining order which would stop Kinder Morgan from constructing the Hill Country portion of the pipeline while the lawsuit plays out in federal court.

While Judge Pitman acknowledged, “the Court appreciates Plaintiffs’ arguments and has concerns about the fate of the warblers whose habitat is in the path of the pipeline,” he also said that the entities suing Kinder Morgan did not show that the pipeline would cause “irreparable harm” to the golden-cheeked warbler population.

The warbler, which has been the subject of much debate since it was placed on the list in 1990, breeds exclusively in Central Texas. These birds need older growth forests and dense tree canopy in order to survive. Despite efforts to remove the bird from the endangered species list in the past few years, the U.S. Fish and Wildlife Service and a 2019 ruling by a federal judge in Austin have solidified the continued protection of these birds. According to numbers on the FWS website, around 27,000 of these warblers survive today, a decline of about 25% in 28 years.

Permian Highway Pipeline_Overview Map from Kinder Morgan
Permian Highway Pipeline Overview Map from Kinder Morgan in May 2019.

The fight over the Permian Highway Pipeline

This is the latest of several legal battles that have played out over the construction of this pipeline through Central Texas. Ever since the pipeline’s route was announced in 2018, Kinder Morgan has faced opposition from landowners, organizations, and local governments about the implications of the pipeline – both in regards to Kinder Morgan’s authority to exercise eminent domain and in regards to the environmental implications of the pipeline itself.

Kinder Morgan has said the most populous areas this pipeline would pass through are located in Central Texas, with the most populous city it passes through being Kyle.

The pipeline would not pass through Austin and the city does not get water from the Edwards Aquifer — an aquifer the pipeline is slated to intersect. However, the city’s research shows the pipeline could still impact Austin’s natural resources. City officials told KXAN that dye-tracing studies have shown water from the Edwards Aquifer does come into Barton Springs. The city is worried that pollutants from the pipeline could impact the springs and the endangered species that live there.

The Wimberley Valley Watershed Association has told KXAN that more than two million people rely on the Edwards and Edwards-Trinity Aquifers for drinking water every day.

The pipeline will be 42 inches wide and is slated to travel from Waha in West Texas to the Katy area, passing through the Hill Country. Because the Permian Highway Pipeline travels only through the state of Texas, it is not subject to as many regulations as a pipeline that crosses state lines.

It will cost an estimated $2 billion for the gas companies involved to carry out this project. This pipeline will be designed to move as much as 2.1 billion cubic feet per day of natural gas.

A Kinder Morgan map of the intended route of the Permian Highway Pipeline through Hays County. Map from Kinder Morgan dated May of 2019.

Responses to the order

In a statement sent to KXAN following the judge’s order, Kinder Morgan said, “We are pleased with the decision and look forward to continuing construction on this vital infrastructure project.”

The company noted that it has made more than 200 adjustments to its original proposed route because of landowners and land surveys along the route. Kinder Morgan also says they have reached agreements with landowners on all of the rights-of-way for the Permian Highway Pipeline route.

The company emphasized that they (and their Permian Highway Pipeline plans) are in compliance with the Endangered Species Act. Their statement went on to note that the environmental assessments along this pipeline route considered nearby endangered species and that Kinder Morgan’s plans were designed to minimize impacts on those species.

“We remain committed to preserving the environment including endangered species, and we have gone above and beyond established requirements to do so,” Kinder Morgan said in the statement.

A fact sheet from Kinder Morgan shows that the company did its environmental analysis on the route between September 2018 and June 2019.

Kinder Morgan explained to KXAN back in July that this assessment included the company conducting a review of a potential pipeline route remotely through publicly available information about the area, then contracting with a company (SWCA) to perform environmental analysis on the ground for that route. That environmental analysis by SWCA has not been made public.

In a suit dismissed in June opposing the pipeline, a judge pointed out that SWCA had been performing an environmental analysis for the pipeline and seeking out permits without communicating with the City of Kyle and Hays County about the projects going on above ground in the same area.

The Texas Real Estate Advocacy and Defense Coalition (TREAD), which has supported some of the legal efforts challenging the pipeline, said in a statement that they do not agree with the court’s most recent ruling denying the Temporary Restraining Order against Kinder Morgan. TREAD believes the court failed to “consider such other significant harms as loss of heritage oaks and spread of oak wilt.”

The statement went on to say that TREAD and its supporters believe the issues they see with the pipeline and the Endangered Species Act “is only one small part of the problem” and that TREAD sees “a multitude of problems, both legal and scientific, with the route that Kinder Morgan has chosen through the Hill Country.”

TREAD said its legal focus was immediately drawn to the pipeline’s impact on endangered species because of the immediate consequences which could result from Kinder Morgan clearing out vegetation. The coalition went on to call for more of a public process setting a route and building the Permian Highway Pipeline and other pipelines like it.

“Before irreversible harm is done to our beautiful Hill Country landscape, the safety of our families, our economic plans, the environment and our aquifers, the public should be brought into the process and allowed to scrutinize the science and offer their valuable perspectives and insights,” TREAD said.

All parties in this federal suit are slated to participate in a phone conference on Tuesday at 3:30 p.m. to set dates for the next legal proceedings.

A map of the potential pathway of the proposed Permian Highway Pipeline across the Edwards Aquifer in Hays County. Image from the August 28 memo from the City of Austin Watershed Protection Department.

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