Proposed Pipeline Would Cut Through Golden-cheeked Warbler Habitat

Every March, birders spill into the canyonlands outside of Austin, Texas, to search for Golden-cheeked Warblers. The tiny black-and-white songbird, with vibrant yellow splashed across its face, is the state’s sole endemic bird, and a federally protected species with an estimated population of 27,000. In early spring the birds migrate up from Central America to nest in the Hill Country, a region of limestone hills, caves, clear creeks, and swimming holes in Central Texas. There they construct deep cup nests, weaving strands of ash-juniper with spiderweb. By the end of summer, they and their fledglings are gone, departed back to the tropics.

The warblers depend on forests that have long been under threat from exploding municipal growth and rapid development along the booming I-35 corridor, which cuts north-south through the heart of the state. The newest threat to the region comes from outside: the multibillion-dollar energy company Kinder Morgan, which moves over one-third of the natural gas consumed in the United States through over 70,000 miles of pipeline. Last year, the company announced plans for the $2 billion Permian Highway pipeline, a 430-mile project running southeast from West Texas, home of the the Permian Basin (now the world's highest-producing oilfield), to the Gulf of Mexico, from where natural gas will be exported to foreign markets.

In doing so, it’s cutting a roughly 80-mile route through one of the last parts of Texas unscarred by the extraction economy. For angry landowners in the way, the pipeline and Golden-cheeked Warbler have taken on greater meanings: the bird as a symbol of the unspoiled Hill Country, and the pipeline as an embodiment of an existential threat that could ruin the landscape forever.

Lucy Johnson’s first inkling of the project was a letter from Kinder Morgan in October, requesting the right to survey her property. Johnson is a former mayor of Kyle, Texas, who lives on Halifax Ranch, a 3,800-acre family property sited along a crystal-clear stretch of the Blanco River. Johnson and her family have largely managed the land with an eye toward environmental sustainability and water quality. Now, the company told them, they intended to use eminent domain to claim a 150-foot-wide construction easement running for 2.9 miles through groves of old-growth oak and ash-juniper—not only prime warbler habitat, but a landscape of particular fragility. All trees within the easement would be razed. 

“It's cutting right through our property,” Johnson says. “It's cutting through century-old oak trees . . . It'll be very disruptive to the birds, and it will be destroying at least part of their habitat."

Johnson’s alarm was echoed throughout the Hill Country. Around 200 people packed a community meeting on the pipeline in January. (Johnson participated on the panel.) Public officials in Hays, Kyle, Buda, and San Marcos counties subsequently voted to oppose the project, while environmental groups like the Hill Country Alliance, Wimberley Valley Watershed Association, and Texas Real Estate Advocacy and Defense Coalition have organized landowners in legal defense funds against Kinder Morgan. And as of April 16, the city of Kyle had sued to stop the project. 

“In the Hill Country, we have both incredible flooding and prolonged extreme drought,” Katherine Romans, executive director of the Hill Country Alliance, says. “Should there be some sort of accident—a spill, a fire that requires the use of flame-retardant chemicals, an accident in the construction of the line—we could see catastrophic impacts to drinking water supplies for thousands of Texans, and to the habitat of endangered species."

For city officials and sovereignty-minded landowners, the pipeline's other major sticking point has been Kinder Morgan's use of eminent domain, an issue which makes pipeline companies all but impossible to fight in Texas. Eminent domain gives governments the right to seize land from private landowners for public purposes—and in Texas, the law extends to pipeline operators. State law does not require pipeline companies to be transparent about their route choices, says David Baker, a longtime Hill Country resident and the executive director of the Wimberley Valley Watershed Association, and offers little in the way of safety regulations or oversight. “The companies use intimidating tactics," he says. "Landowners who have never been through the process of condemnation are receiving letters full of legalese that threaten lawsuits and injunctions,” pressuring them to give up their property without a fight.

This aspect of the Permian Highway project has sparked a backlash in the Texas Legislature. Representative Erin Zweiner, a freshman Democrat representing Blanco and Hays counties, has sponsored more than 10 bills aimed at reining in pipeline companies and forcing greater environmental oversight and mitigation. State Senator Lois Kolkhorst (R–Brenham) pushed to boost the rights of landowners faced with eminent domain claims. These measures largely failed in the legislature, with lawmakers instead passing a bill to charge pipeline protestors with felonies.

According to Romey Swanson, director of conservation strategy at Audubon Texas, some landowners see the presence of an endangered species like the Golden-cheeked Warbler as leverage against the pipeline company. While the 1990 federal listing of the bird was bitterly opposed by many developers and local property-holders, landowners once concerned that the warblers were a threat to their personal sovereignty now hope that the Endangered Species Act will deal them a stronger hand against Kinder Morgan, either by slowing the company down or forcing it to avoid the bird's breeding territory.

There is no question that the pipeline will affect Golden-cheeked Warbler populations in the area, Swanson says, both through clearing the ash-junipers in which they nest and further disturbing an already fractured habitat. Warbler populations do better in large swaths of undamaged habitat, which can support more birds and are more resilient to threats like predators and nest parasites; smaller patches of land don’t offer those benefits. 

Often, though, landowners have not officially reported warblers nesting on their property to local authorities, and rushing to do so now that a threat has materialized is too little too late. Although Kinder Morgan is legally required to survey for warblers, the pipeline company gets to decide who will lead the survey work—and usually the company is the one paying the surveyor. "There are plenty of instances of environmental consulting firms that are favorable to whoever's writing the checks,” Swanson says. “There’s always an opportunity to introduce bias in surveys based on whoever is doing the work.”

Pipeline companies are legally required to offset the damage they do to warbler habitat like that found on Johnson’s property, usually through setting aside or restoring land. However, there’s no legal requirement that mitigation occur on the property, or even the county, where the damage occurs. Most mitigation in this case is done through mitigation banks, which draw together units of protected, enhanced, or restored land. Development companies can buy credits in this land, which in theory compensates for damage they do—but not everyone agrees that one swath of habitat is equal to a different habitat of the same size.

Ideally, Swanson says, development companies would replant and restore land in the vicinity of the original project, which with care can eventually regrow lost forests that birds like Golden-cheeked Warblers depend on. But in this case, Swanson says, mitigation is likely to occur in a place like the Balcone Canyonlands, a national wildlife refuge northwest of Austin, well out of the pipeline’s path and an area that's already essentially protected.

When asked repeatedly whether mitigation would occur along the pipeline route or through the use of mitigation banks, Kinder Morgan says only that they were working with the U.S. Fish and Wildlife Service to determine appropriate mitigation.

“We want to see the reinvestment of mitigation dollars into the very counties and landscapes that are being impacted,” Audubon Texas's Swanson says, "as opposed to the very cheap route of being able to go buy credits in places that are several counties away." 

The question now is how much damage will be done, says Baker, the Wimberley Valley Watershed Association director. "Our primary goal is to work with Kinder Morgan, the state, and the communities to see if we can reroute the pipeline out of the Hill Country," he says. "This is not an appropriate place for this kind of industrial infrastructure."