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Loach minnow
Law360, September 22, 2010

Green Group Tries to Block Ariz. Gas Pipe Repairs
By Dietrich Knauth

New York -- The Center for Biological Diversity has asked the Federal Energy Regulatory Commission to stop planned repairs to a natural gas pipeline that passes through the habitat of the threatened loach minnow in the San Francisco River.

In a petition filed with FERC Tuesday, the center asked the commission to reconsider its grant of a permit, saying that the work would destroy critical habitat and alleging that the commission failed to consider alternatives, including removing the pipeline.

The pipeline in question is owned by El Paso Corp., who had applied for a permit to embed the pipeline in concrete after river erosion exposed three pipeline segments near Clifton, Ariz. El Paso said that the project, which is expected to cost $3.7 million, was necessary to ensure the "safety and integrity" of the exposed lines. The permit was granted on Sept. 16.

"We don't know if this is the best plan, because no alternatives were considered," said Jay Lininger, an ecologist with the center. "FERC cannot rubber-stamp a proposal like this when endangered species are involved."

"We disagree with the Center for Biological Diversity, as you might imagine," said Richard Wheatley, a spokesman for El Paso, stressing that every effort would be made to protect the habitat during construction. "We've met all the federal requirements that are associated with this project," Wheatley said.

In their order granting the certificate, FERC disagreed with the Center for Biological Diversity's earlier allegations that it had failed to consider alternatives. It also noted that El Paso had attempted to work around the pipeline in 2005 by horizontally drilling under the San Francisco River. The drilling project was unsuccessful "due to geological issues," the order said.

The pipeline was laid in 1967 and serves the Morenci Mine, a large open-pit copper mine near Morenci, Ariz. owned by Freeport McMoRan Copper and Gold Inc.

El Paso applied for permission in July to replace the pipes and build a permanent concrete structure within the streambed and floodplain of the San Francisco River.

In a biological analysis greenlighting the proposal, the U.S. Fish and Wildlife Service highlighted the fragility of the loach minnow and its habitat, but approved construction as long as certain guidelines were followed.

One of the recommendations was to schedule the project for October and November, when the endangered fish are not breeding and the river's flow is at its lowest.

The action, "as proposed, is neither likely to jeopardize the continued existence of the loach minnow, or likely to destroy or adversely modify designated critical habitat for the species," the July report concluded.

The construction plan would require excavation of a two-and-a-half acre area within the floodplain and active channel of the river, and would divert the water's flow with a temporary dam, the FWS report said.

The Center for Biological Diversity cited the disruption described in the FWS report in its Tuesday petition over the permit, and requested a full environmental impact statement before construction starts.

El Paso had requested that approval be expedited so that it wouldn't have to wait until October 2011 to begin. Neither Lininger nor Wheatley would speculate on whether the center's petition for reconsideration would delay the project until after the window proposed by the FWS, but Wheatley said the project wouldn't wait.

"We intend to begin work as soon as is feasible," Wheatley said.

The loach minnow's habitat has declined to 419 miles of streams and rivers in the southwestern U.S., which is only 15% to 20% of its historical range, according to the FWS report. A petition to reclassify the species from "vulnerable" to the more severe "endangered" is pending, the FWS said.

"The survival of the loach minnow was already in doubt before this pipeline plan," Lininger said. "The federal government needs to rethink this pipeline and not place ill-considered energy development ahead of imperiled

The center has already locked horns with El Paso earlier this year, suing in the U.S. Court of Appeals for the Ninth Circuit to stop a 677-mile pipeline crossing Wyoming, Ore., and California. The center cited impact on nine species of endangered fish where the line would cross rivers and streams.

Photo © Paul S. Hamilton