Austin (KXAN) — Several cities and conservation groups mailed a letter Wednesday giving notice of intent to sue federal agencies if they don’t hold Kinder Morgan’s Permian Highway Pipeline to the requirements of the Endangered Species Act. The entities who filed the notice don’t believe the process Kinder Morgan is currently taking to get permitted through federal agencies complies with the Endangered Species Act.
The City of Austin, the City of San Marcos, the City of Kyle, the Barton Springs Edwards Aquifer Conservation District and the Wimberley Valley Watershed Association joined together in sending the notice of intent (NOI) to the United States Fish and Wildlife Service (USFWS) and U.S. Army Corps of Engineers (USACE).
Together, this group of cities and organizations is expressing concern for the environmental implications of the 430-mile natural gas pipeline that is slated to pass across Texas and through the Hill Country. The group notes that the pipeline will travel through the habitats of seven endangered species, including the Golden-cheeked Warbler, the Barton Springs Salamander, the Austin Blind Salamander, the San Marcos salamander, the Texas Blind salamander, the Fountain darter, the Comal Springs dryopid beetle, and the Comal Springs riffle beetle.
Because the Permian Highway Pipeline travels only through the state of Texas, it is not subject to as many regulations as a pipeline that crossed state lines would be.
This legal effort is funded by Texas Real Estate Advocacy and Defense Coalition (TREAD), which identifies as “a bi-partisan group that advocates for and defends Texas landowner rights.”
They are calling for more publically available information about the environmental analysis done on the pipeline route and the efforts Kinder Morgan will be taking to mitigate impacts. Now that this NOI has been filed, there is a 60-day window before these entities can actually file suit against the federal government.
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.
The pipeline is slated to travel from Waha in West Texas to the Katy area, passing through the Hill Country. Kinder Morgan has already begun construction on the western portion of the pipeline and expects to have it operational by late 2020. The middle portion of the pipeline is slated to pass through the Hill Country, with the city of Kyle being the most populous city it passes through.
City of Kyle gets involved after recent settlement
The City of Kyle has already been involved with an unsuccessful legal challenge against Kinder Morgan. The city also passed an ordinance this summer designed to require greater depths for pipelines, which in turn prompted Kinder Morgan to sue them.
After the city expressed the legal battle with the pipeline company was growing too expensive for them to handle, the council voted on October 4 to approve a settlement with Kinder Morgan. The pipeline company agreed to pay the city $2.7 million and to promise not to pump crude oil through the entirety of the pipeline.
Kyle mayor Travis Mitchell explained that in the settlement, the city specifically negotiated the ability to bring suits against Kinder Morgan on the basis of environmental concerns.
“Up ’til this point, we have no idea what the environmental impact would be,” Mitchell said of the pipeline.
“We need to make sure the powers that be, including our legislature, just know how seriously this is impacting our entire region,” Mitchell added. “I also think this notice of intent is a way to signal to our legislature that we’re not dropping the issue.”
While the pipeline doesn’t pass through the City of Austin or San Marcos, both cities believe the pipeline still stands to impact their well-being.
City of Austin’s concerns
“So the city of Austin is concerned about the construction and operation of the Permian Highway Pipeline, in particular where it would cross the recharge zone to the Edwards Aquifer,” explained Chris Herrington, the City of Austin’s Environmental Officer. “That could introduce sediment and hydrocarbons into the aquifer that would pose a risk for the two species of federally endangered salamanders that reside in Barton Springs.”
While the city of Austin gets its water from the Colorado River and not the Edwards Aquifer, the city believes that the proposed pipeline route could still impact natural resources in the city. Herrington explained that over the last decade, the city “has invested a lot of time and resources in protecting the Edwards Aquifer and in particular Barton Springs.”
“The city and others have done dye tracing studies to show that [water from the Edwards Aquifer in Hays County] actually does come to Barton Springs under certain flow conditions, so that would mean that any pollutants that would be released during the construction of the pipeline or the operation of the pipeline could come to Barton Springs,” Herrington said. “Obviously Barton Springs is a huge cultural asset for this city and we have an obligation with the federal government to protect the habitat of Barton Springs for the Barton Springs salamander and the Austin Blind Salamander.”
“So without pursuing this step and asking the federal government to intervene to protect these species we would have no certainty,” Herrington added. “And this is the only action we could take to get the information to understand the full range of impacts and what Kinder Morgan would be doing to mitigate.”
Is there anything these federal agencies can do in the next 60 days to prevent this notice from becoming a full-blown lawsuit?
“That’s a good question for our friends in the federal government,” Herrington said.
City of San Marcos concerns
The City of San Marcos explained that its City Council voted unanimously to file the notice of intent.
“Based on the responses received as a result of the NOI, this matter may be litigated in Federal court,” the city said in a statement.
Questions over impacts to aquifers
The Barton Springs Edwards Aquifer Conservation District explained in a release that they are “deeply concerned” that the aquifers they work with, which supply water to 70,000 people in their district, would be impacted by the pipeline.
“Kinder Morgan has not committed to constructing the pipeline in accordance with the minimal construction standards set forth by the TCEQ, nor have they shared with us their plans to protect the aquifers during construction and long-term operation by the PHP,” said Blayne Stansberry, president of the Barton Springs Edwards Aquifer Conservation District.
The Wimberley Valley Watershed Association explained that more than two million people rely on the Edwards and Edwards-Trinity Aquifers for drinking water every day. The Watershed Association added that hydrocarbons in the pipeline could also “threaten the health” of San Marcos Springs, Jacob’s Well, and the groundwater drinking supply in the area.
The notices of intent
Kinder Morgan sent KXAN a statement about this NOI Tuesday saying:
“While we are not commenting in length on this previously reported issue, the City of Kyle’s potential participation in this litigation was specifically contemplated in the settlement agreement.”
Hays County in partnership with Travis Audobon Society filed a NOI regarding the Permian Highway Pipeline back in July. That NOI is focused on protections for only the Golden-cheeked Warbler.
TREAD says that both NOI’s accuse Kinder Morgan of trying to get a general permit from the US Army Corps of Engineers called a Nationwide 12 permit rather than “seeking a more rigorous individual permit under the Clean Water Act.” TREAD says Kinder Morgan chose the route for the Permian Highway Pipeline before hiring an environmental consultant.
“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,” said lead attorney William Eubanks in a release. “As a result, there are several legal obligations that the USACE, USFWS, and Kinder Morgan must satisfy to ensure compliance with the ESA, Clean Water Act, and National Environmental Policy Act.”
Eubanks told KXAN over the phone Wednesday that he does think there’s a sentiment among the groups he’s representing that “this is a very bad location for a pipeline” due to the potential impacts on residents and aquifers.
“We would prefer to see it at a different location,” Eubanks said. “At bare minimum, we would like to see the federal laws complied with.”