IN DEPTH: Hays County, Travis Audubon demand full, public environmental review in legal challenge to Permian Highway Pipeline

Image description
Plaintiffs in endangered species legal challenge to Permian Highway Pipeline seek full, public environmental review
Image description
Plaintiffs in endangered species legal challenge to Permian Highway Pipeline seek full, public environmental review
Image description
Plaintiffs in endangered species legal challenge to Permian Highway Pipeline seek full, public environmental review
Local opponents of the Permian Highway pipeline have taken a second major legal action to try to push the company developing the project into conducting a full and public environmental review.

Hays County, Travis Audubon Society and several private plaintiffs filed a notice of intent July 17 to sue the U.S. Army Corps of Engineers, the U.S. Fish & Wildlife Service and Kinder Morgan. The challenge follows months of discussion among elected officials and residents over the impact that the proposed natural gas pipeline could have on the environmentally sensitive region.

“Basically the suit is saying: We need you to do an environmental impact study,” said Christy Esmahan, a Travis Audubon board member and chair of the advocacy committee.

The letter of intent, which must be filed at least 60 days before a lawsuit is brought under the federal Endangered Species Act, charges the company with trying to avoid one.

“Kinder Morgan is deliberately choosing to force a 42-inch petroleum pipeline through one of the most ecologically unique and diverse areas of the state of Texas, as opposed to avoiding expected impacts to endangered species and the Edwards Aquifer by following a more traditional route that would avoid these impacts,” the letter of intent reads. “If Kinder Morgan is going to stubbornly insist upon this route for whatever reason, it should be required to follow the correct legal process.”

In addition to filing a letter of intent, the Texas Real Estate Advocacy and Defense Coalition—the organization funding the legal action—announced in July that it would appeal a previous lawsuit in which Hays County was a plaintiff. That suit was dismissed by a Travis County state district judge in June, but Hays County commissioners voted at their July 16 meeting to support the appeal.  The first lawsuit, originally filed in April, focused on the lack of regulation around the exercise of eminent domain by private pipeline companies—a power that land use attorneys and other experts have said is extraordinarily difficult to challenge.

The environmental issue


Even as eminent domain dominated conversations about legal challenges against the Permian Highway Pipeline in recent months, environmental issues have been at the heart of public opposition to the project in Central Texas since landowners first began receiving letters from Kinder Morgan last fall.

Local residents have repeatedly expressed concern about the potential effect of the pipeline on the Edwards Aquifer—a key source of drinking water for the region—as well as unique features of the aquifer that are are also a draw for tourists, such as Jacobs Well, and disruption of conservation land in the region.

“We have a great cause for concern,” said Ashley Waymouth, managing director of the Wimberley Valley Watershed Association, which is not directly involved in the suit but has been a part of the opposition to the pipeline since last fall. “This affects our aquifers, this affects our water supply, this affects our endangered species. We have a lot of things we have to be mindful of.”

Andrew Sansom, a well-known Texas conservationist and the former executive director of the Texas Parks & Wildlife Department, joined the first lawsuit as a plaintiff after learning the roughly 1,500-acre parcel of conservation land he manages—Hershey Ranch—would be bisected by the pipeline. Though he is not a party to the letter of intent, he supports its message.

“I think that what is most disturbing about this is that it would become an assault on one of the most iconic regions of our state in both its culture and its natural resources—those being the endangered species and the Edwards and Trinity aquifers,” Sansom told Community Impact Newspaper. “At the same time, it’s also going to be incredibly disruptive on one of the fastest-growing regions in the United States. And why they would have picked such a dual impact is just amazing to me.”
The golden-cheeked warbler—a small black bird with a yellow head is the federally listed endangered species at the center of the letter of intent, and one of the reasons that Travis Audubon joined the suit.

"It just seemed like it just went right along with what we need to do to protect this bird,” Esmahan said.

The new lawsuit


According to David P. Smith—a former deputy assistant secretary for fish, wildlife and parks at the U.S. Department of the Interior and the attorney who filed the notice of intent—the Permian Highway Pipeline will directly affect around 548 acres of habitat belonging to the golden-cheeked warbler and indirectly affect 2,355 acres.

Smith said this would clearly amount to what the federal government refers to as “take” of endangered species—defined as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect”—which must be specially permitted to avoid violating the ESA.

“I don’t think anyone is debating whether or not take is going to occur  with the golden-cheeked warbler based on the amount of occupied habitat that’s going to be impacted,” Smith told Community Impact Newspaper.

The letter of intent charges that the permitting process Kinder Morgan is pursuing “is a thinly veiled attempt to avoid obtaining the necessary federal permits to allow them to lawfully ‘take’ federally listed endangered species.” It goes on: “[I]t is obvious that Kinder Morgan is deliberately attempting to hide the true effects of the [pipeline] on the human and natural environment by failing to obtain the necessary permits to comply with federal law in an effort to avoid conducting a full and necessary review of the project.”

Though the Permian Highway Pipeline never crosses outside of Texas, there are still federal permits Kinder Morgan can and in some cases must obtain. The company is required, for example, to have permission from the Corps for any crossing of waterways, of which there are many over the pipeline’s 430-mile path from the Permian Basin to the Gulf Coast.

That permission can come in one of two forms. The first option is a general nationwide permit, which the Corps issues every few years and are not project-specific. But according to the Corps, not all projects qualify for nationwide permits, including those that “would have more than minimal individual or cumulative net adverse impacts on the environment, or may be contrary to the public interest.”

The letter of intent argues that the Permian Highway Pipeline will have much more than a minimal impact on the environment, and therefore that Kinder Morgan must pursue the second option for permission from the Corps:  an individual permit under Section 404 of the Clean Water Act.

Unlike nationwide permits, those individual permits require public notice, public hearings, and case-by-case evaluation.

“They’re almost, in essence, playing keep-away with the information by using the nationwide permitting process,” Smith said.

With either type of permit, if the pipeline remains on the same route, the Corps will have to consult with the U.S. Fish & Wildlife Service under Section 7 of the ESA. In turn, the USFW will have to produce a biological opinion and what it calls an incidental take statement, or ITS, which quantifies the damage that could be done to the species.

But, Smith said, neither the biological opinion nor ITS actually give Kinder Morgan permission for incidental take of the golden-cheeked warbler. Those items must be incorporated into the Corps permit.

Even if those elements are incorporated into the Corps permit, however, the issue of jurisdiction may remain. The nationwide permit—and in some cases an individual permit—is applied only to the area of the project that crosses a waterway under Corps jurisdiction, which Smith estimates would be 2%-3% of the project as a whole.

Or, as the letter of intent states, in that case “Kinder Morgan will have no legal coverage for incidental take of listed endangered species resulting from the construction, operation and maintenance of the PHP for over 95% of its route.”

The letter of intent to sue outlines three options that the federal agencies and Kinder Morgan can take to avoid a lawsuit. First, Kinder Morgan can apply for an individual Corps permit to cover the whole project, which would require a full and public environmental review, and consult with the USFW and then incorporate the biological opinion and ITS into the permit. Second, Kinder Morgan can proceed with nationwide permitting but also apply separately to the USFW for what is known under the ESA as a Section 10(a)(1)(B) Incidental Take Permit, which also requires a full environmental impact statement, including public notice and public comment.

“We’re just hoping to get some answers on how [Kinder Morgan] will mitigate the environmental impacts that they will create in Hays County,” Hays County Commissioner Lon Shell said.

The third option offered by the letter of intent is to move the pipeline “to an alternative route that would avoid substantial adverse impacts to federally listed endangered species and the Edwards Aquifer.”

Kinder Morgan sent Community Impact Newspaper a written statement from Vice President of Public Affairs Allen Fore, responding to both the appeal of the first lawsuit and the filing of the letter of intent.

“We feel confident that the Travis County District Court ruled in accordance with settled law, and we continue to work with all stakeholders, including state and federal regulators, as we complete the Permian Highway Pipeline Project,” the statement reads.  “We are also complying with all applicable laws related to endangered species along the pipeline route.”

A matter of process



The first lawsuit Hays County joined to challenge the Permian Highway Pipeline was essentially about public process and transparency, charging that when it came to the exercise of eminent domain by private pipeline companies, the “[Texas] Railroad Commission conducts no investigation, evaluates no alternative route, entertains no adversarial inquiry, provides no notice, allows no hearing, and considers no evidence.”


The second suit levels a similar challenge at federal agencies, should Kinder Morgan be allowed to proceed with only nationwide permits, stating the use of those permits is the company’s “effort to avoid fully analyzing the impacts of its project on the human and natural environment, disclosing those impacts to the public or to elected officials, or allowing any sort of public comment on the environmental effects of their project.”

In a third legal action related to the Permian Highway Pipeline, Kinder Morgan has sued the city of Kyle over a municipal ordinance that mandates additional steps from companies building pipelines in the city and the developers that build near them. The company charges that Kyle—which is a plaintiff of the eminent domain lawsuit—has overstepped its authority.

The difference between what is required of private companies and what is required of the government in terms of both the use of eminent domain and the evaluation of environmental impacts has been raised often by local elected officials and pipeline opponents.

“If the county were going to build a road along the route that they have chosen to build their pipeline we would be doing a more thorough environmental impact analysis,” Shell said.

By the end of the 60-day period after the letter of intent is filed, Smith said he hopes the federal agencies in charge of permitting and Kinder Morgan will have taken action to avoid a lawsuit.

“Our hope would be that Kinder Morgan would have a conversation with the Fish & Wildlife Service and with the Corps and decide to do the sensible thing and get full coverage for their endangered species impacts,” he said.

If not, a second suit will ask that the private pipeline companies be required to complete a similar process as government agencies disrupting an endangered species' habitat.

“Hays County is like, ’Hey, every time we do some sort of major infrastructure projects, we’re doing a very public review,” Smith said. “And so we think Kinder Morgan should too. As a matter of law, we agree.”
SHARE THIS STORY
By Katharine Jose

Katharine Jose has written about politics, infrastructure, environment, development, natural disasters and other subjects for The New York Observer, Capital New York, and The New York Times, among other publications. She was an editor for several publicat


MOST RECENT

New dockless vehicles, such as Revel mopeds, have entered the Austin market, in addition to electric scooters, pictured here in West Campus. (Emma Freer/Community Impact Newspaper)
City of Austin expects to see more dockless vehicles used for longer trips in 2020

When electric scooters first arrived in Austin in April 2018, residents and city officials alike raised concerns about regulations, safety and inconvenience.

Austin City Council directed the Austin Police Department to end enforcement of lower-level marijuana possession offenses to furthest extent possible under state law during a Jan. 23 meeting.  (Christopher Neely/Community Impact Newspaper)
Austin police chief doubles down: Cops will continue citing and, in some cases, arresting for pot possession despite City Council direction

City Council decision does not change how police department handles marijuana possession, according to the police chief.

Trudy's North Star, located at 8820 Burnet Road, Austin, was closed as of Friday afternoon, Jan. 24, with a sign on the door saying the restaurant would reopen Monday, Jan. 27. (Jack Flagler/Community Impact Newspaper)
Trudy's files for bankruptcy, owes employees more than $267,000 in unpaid wages

According to court documents, the Tex-Mex restaurant's financial issues started with its Dripping Springs location, which lost over $1 million per year.

Students at Lee Lewis Campbell Elementary Media and Performing Arts Institute in East Austin point to their classmate holding the red bag, whose artwork is featured on the new electric bus. (Amy Denney/Community Impact Newspaper)
Capital Metro sets ambitious goal to eventually replace all 423 buses with electric versions

Starting Jan. 26, riders can ride the new electric buses, which will rotate among routes.

(Christopher Neely/Community Impact Newspaper)
Council members divided over hire of outside attorney in property protest rights lawsuit

Some City Council members said taxpayer dollars should not be used to fight taxpayer interests.

While a new story is scheduled to open in South Austin this March, the H-E-B located at 600 W William Cannon Drive, Austin, will close this spring. (Nicholas Cicale/Community Impact Newspaper)
South Austin H-E-B openings, closings and renovations expected in 2020

2020 is slated to be a year of major development for H-E-B in the South Austin area, with projects totaling $200 million.

Central Health is exploring options to provide a cash injection to its employees with minimum wage salaries. (Courtesy Fotolia)
Central Health will explore minimum wage bumps for its employees

The health care district is considering increasing its minimum wage to $15 per hour.

Austin EyeWorks gains new leadership as longtime doctor retires

An Oak Hill optometry office has welcomed a new eye doctor.

Construction on Sunset Valley city facilities including its new police building were completed in the early summer of 2019, but problems persist with its water features. (Nicholas Cicale/Community Impact Newspaper)
Sunset Valley to withhold payment until city facility pond issues are resolved

Sunset Valley will withhold between $200,000-$250,000 in payments for its new water quality pond.

A photo of the exterior of Dripping Springs City Hall.
Neighborhood Note: Dripping Springs appoints the city’s first full-time attorney

Dripping Springs City Council has named Laura Mueller city attorney.

An aerial rendering of the schematic design for Dripping Springs ISD's fifth elementary school.
Plans progress on Dripping Springs ISD bond projects, new school construction in 2020

Construction will move forward at several Dripping Springs ISD school sites, both new and existing, this year.

Back to top