WIMBERLEY, TX — Yesterday, Montana Federal Judge Brian Morris reaffirmed his decision vacating the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP 12) in the Keystone XL pipeline case. His decision continued a previous ruling that removed this administrative device that allows for pipeline construction across waterways without the necessity of individual permit review by the Corps. This affirmation is expected to slow construction of the Permian Highway Pipeline (PHP) as it crosses Blanco and Hays Counties.
The new opinion by Judge Morris is largely similar to the original decision issued on April 15 with the exception that maintenance operations and some other minor changes are allowed. Otherwise, Judge Morris maintained his earlier decision and refused to issue a stay in the effect of his decision pending appeal to the 9th U.S. Circuit Court of Appeals.
The ruling is expected to have major impact upon the PHP project currently under construction in the Texas Hill Country using NWP 12. According to Charles Irvine, attorney for the Trinity Edwards Springs Protection Association (TESPA), an opponent to the pipeline, “The new order appears to apply to new construction projects such as the PHP. We will all be watching closely to see how the Corps interprets this new decision.”
The PHP has been the source of much controversy and legal opposition since its inception, but the level of opposition has recently increased due to the discharge of drilling fluids into the Trinity Aquifer by the pipeline’s sponsor Kinder Morgan during construction of a crossing beneath the Blanco River. This release of drilling fluids has contaminated several water wells for homeowners solely dependent on aquifer groundwater.
According to David Baker of Wimberley Valley Watershed Association (WVWA), “We joined with TESPA to fight this pipeline because the construction was unsafe due to its potential impacts on the aquifer. What happened was unfortunate but predicted. We are gratified by Judge Morris’s ruling because it gives us another arrow to use to protect our sacred waters.”
Patrick Cox, Executive Director of TESPA, agreed, stating: “We have been working with our lawyers on various theories to protect our groundwater and springs and rivers that are central to our Hill Country way of life. We have not had much help in this fight from state and federal authorities. We are all simply thankful for a brave federal Judge in Montana whose ruling gives us time to make important arguments in court.”
On April 8, 2020, TESPA issued notices of intent to sue the PHP project and Kinder Morgan for violations of the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Clean Water Act. Those suits cannot be filed until the 60-day notice period has expired and the federal courts gain jurisdiction to hear their claims.