COURTS

New bid to stop gas pipeline

Hays County, landowners claim companies didn't get permits to disturb endangered species

Chuck Lindell
clindell@statesman.com
The proposed Permian Highway Pipeline could destroy almost 550 acres of habitat for the endangered golden-cheeked warbler, opponents argue. [GREG LASLEY]

Hoping to stop construction of a 42-inch natural gas pipeline, Hays County commissioners, the Travis Audubon Society and three landowners have notified U.S. agencies and two pipeline companies that they intend to file suit alleging violations of federal law, including the Endangered Species Act.

The 60-day notice, required by federal law before the lawsuit can be filed, argued that the pipeline companies failed to obtain the proper permits needed to disturb endangered species along the 430-mile length of the Permian Highway Pipeline.

The notice, dated Wednesday, also alleged that Kinder Morgan Texas Pipeline — operator of the $2 billion project — tried to "hide the true effects" of the pipeline on people and the environment to avoid having to conduct a full review as required by the National Environmental Policy Act.

"The pipeline's chosen route crosses some of the most sensitive environmental features in Central Texas and the Texas Hill Country, including the recharge zones of the Edwards and Edwards-Trinity Aquifers ... and federally listed endangered species habitat," the notice said.

"Its path will bring massive volumes of pressurized, combustible natural gas near residential subdivisions every day," said the notice, sent to Kinder Morgan and Permian Highway Pipeline LLC, which is asserting eminent domain power to use private property for the line's right of way.

Also in danger of being sued in federal court, according to the notice, are the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service.

The notice came after a separate lawsuit to block the pipeline was dismissed last month in state court.

Allen Fore, vice president of public affairs at Kinder Morgan, has previously said the pipeline route was meticulously planned to minimize disruptions to landowners and the environment — including more than 150 route adjustments in response to concerns raised by property owners and land surveys on the path from the Permian Basin to Colorado County.

The project, he said, exceeds the state's legal requirements and has been approved by the Texas Railroad Commission, Texas General Land Office, Texas Commission on Environmental Quality and Texas Historical Commission.

In addition, permits from the Army Corps of Engineers, granted in consultation with the Fish and Wildlife Service, will ensure that endangered specials are protected, Fore said.

Fore, in an opinion piece that appeared in the American-Statesman in May, also said the pipeline path aligns with existing rights of way where possible to minimize the impact.

"This is a huge reason why the Hill Country, with its existing subsurface pipelines already operating safely, is the best choice," Fore wrote. "The fact that 930 miles of existing pipelines have been under our feet in the Hill Country for generations demonstrates the pipeline industry’s commitment to safety and protecting the landscape."

The notification of intention to sue, however, argued that the Army Corps permits are inadequate to meet regulations under the Clean Water Act as well as studies required under other federal laws that would have provided the public with a greater understanding of the project's environmental impact.

The pipeline's path, the notice said, also would destroy almost 550 acres of habitat for the endangered golden-cheeked warbler, adding that a proper impact study could show that other endangered species may be harmed as well.

The Hays County Commissioners Court voted 4-0 Tuesday to join the possible lawsuit, with County Judge Ruben Becerra absent due to a family emergency.

The effort was different from a lawsuit — filed in state court by landowners in Gillespie, Blanco, Hays and Caldwell counties and by several area governments — arguing that the pipeline is dangerous and that the Railroad Commission failed to create a proper permitting process before allowing land to be condemned for the project.

State District Judge Lora Livingston in Austin, however, dismissed that lawsuit in June.

At Tuesday's meeting, Hays County commissioners also voted to appeal Livingston's ruling, joining the city of Kyle in turning to the Austin-based 3rd Court of Appeals in hopes of reinstating the lawsuit.