In 2013 and 2014, an oil and gas industry-funded organization charged with overseeing the protection of a rare lizard in West Texas’ oil patch failed to perform any of the habitat restoration work it was supposed to do, according to state records. Nor did the Texas Habitat Conservation Foundation monitor drillers and other landowners to ensure they were performing conservation measures to protect the dunes sagebrush lizard.
State Comptroller Glenn Hegar, whose office oversees endangered species programs for Texas, quietly fired the foundation last month after discovering those lapses, as well as others.
The disclosures raise questions about how well the state’s strategy to place responsibility for protecting the species in private hands has worked. The foundation was created four years ago by the petroleum industry specifically to manage protection of the tiny brown lizard in lieu of listing the species as endangered, which could have severely limited oil production in the area.
At the time, industry and state officials led by then-Comptroller Susan Combs hailed the arrangement, called the Texas Conservation Plan, as a landmark compromise that would protect both the lizard and the Texas economy without onerous federal regulations. Conservationists warned that placing the well-being of the species in the hands of a private organization, out of public sight, was fraught with risk. Two organizations brought an unsuccessful lawsuit to stop the plan.
Critics said news of the foundation’s failure to perform basic oversight of the fragile species appeared to confirm some of their fears.
“One of biggest problems of the lizard plan is that it hard for any member of the public to know who’s participating in the plan and what conservation measures are being undertaken, in a way that can make them confident of the protection of the species,” said Melinda Taylor, director of the Kay Bailey Hutchison Center for Energy, Law and Business at the University of Texas.
The foundation’s work had been questioned before. In 2013, Defenders of Wildlife, one of the groups that sued to block the lizard plan, reported that, although the Texas Habitat Conservation Foundation suggested there had been no disturbance of lizard habitat, satellite photos showed that roads, wells and other infrastructure had been built on the land.
Although the foundation’s reporting had since improved, “it seems like there were some deeper problems that could not be fixed,” said Ya-Wei Li, a senior director of endangered species conservation at Defenders of Wildlife.
A spokeswoman for Hegar, Lauren Willis, said there was no evidence the foundation’s poor work had harmed the lizard. She said the fact that the comptroller’s office had discovered and corrected the recent lapses is proof that state regulators are aggressively overseeing the plan.
The conservation plan calls for lizard habitat hit by surface disturbances to be mitigated, or repaired — removing abandoned concrete well pads and roads, for example. But between 2013 and 2014, the foundation failed to do such mitigation work on several sites over approximately 20 acres, the comptroller’s office determined. Rather, it removed mesquite plants from separate pieces of land, considered a cheaper and less-effective protection for the species.
The plan to protect the dunes sagebrush lizard also requires the foundation to make sure that oil companies and landowners implement conservation measures to protect sensitive habitat on which they work. Instead, the comptroller’s office said it discovered that the Texas Habitat Conservation Foundation had simply permitted the companies to self-report once a year on whether they had done the required work.
In one instance, three acres of lizard habitat that had been disturbed was never reported to the comptroller’s office, as required by the plan.
Jason Brooks, executive director of the foundation, confirmed that the foundation’s contract had been terminated, but disputed the comptroller’s account. He said the state and the foundation simply disagreed over definitions of the word “mitigation,” and he insisted his organization was properly overseeing conservation efforts on West Texas oil and gas land.
“We were out in the field doing what we were supposed to be doing. Our participants are to be commended for doing what they’ve done,” he said.
Joe Maley, a foundation board member and board chairman of the Texas Agricultural Land Trust, said he was shocked by the firing. “The program was working,” he said.
But Warren Chisum, a former state representative and lobbyist who helped form the Texas Habitat Conservation Foundation, said the organization’s role overseeing the lizard had been terminated because “we were just not able to meet all the requirements” to protect the lizard. “We should have been able to handle it. But we didn’t have the right people,” he said. Chisum said he intends to resign at the foundation’s next meeting.
The U.S. Fish and Wildlife Service proposed listing the dunes sagebrush lizard as endangered in 2010. But in 2011 Chisum led an under-the-radar effort to move oversight of endangered species from the Texas Parks and Wildlife Department to the comptroller’s office. Combs, a staunch opponent of federal species listings because of the economic cost to landowners and the state treasury, began trying to fend off an endangered designation for the lizard.
She worked with the oil and gas industry and private property owners to craft a plan that would allow petroleum companies to voluntarily sign on, and pay for conservation and mitigation efforts to protect the lizard. Though controversial, the Texas Conservation Plan was adopted in 2012, and federal regulators withdrew their proposal to designate the lizard as endangered.
The Texas A&M AgriLife Extension Service, a division of the university, was hired to manage the details. It in turn sought out a contractor to work on-site with landowners and petroleum companies in the Permian Basin.
When one couldn’t be found, the Texas Oil and Gas Association formed the nonprofit Texas Habitat Conservation Foundation to handle the on-the-ground work. Originally led by oil and gas lobbyists, the foundation’s board today is Chisum; Maley; Maley’s son, who is a real estate professional; and Houston attorney and chemist Glenna Kyle. Brooks is the foundation’s sole employee.
In a written statement, Combs said that when she left office, the foundation was “reliably playing an essential role in the state’s approach to the process.”
When Hegar replaced Combs as comptroller in 2015, he hired Robert Gulley, a San Antonio lawyer and scientist, to lead the agency’s endangered species program. Best known for overseeing a plan balancing San Antonio’s use of the Edwards Aquifer for drinking, agricultural and industrial water with endangered species found in the area, Gulley said he began reviewing the comptroller’s species protection program soon after his arrival.
Concerned that Texas Habitat Conservation Foundation was charged with handling both field work and compliance, in late December Gulley hired a company he’d worked with on the Edwards Aquifer project, Bio-West, to ensure oil and gas companies were complying with the lizard protections. But after discovering evidence the foundation had failed to do important oversight work, Hegar’s office fired the foundation on Feb. 11, hiring Bio-West full-time.
People who have worked with the company, and its leader, Edmund Oborny, gave Bio-West high marks. “He’s done outstanding work,” said Con Mims, executive director of the Nueces River Authority and former head of a group involved with the Edwards Aquifer plan.
Federal officials said from their perspective the state’s lizard’s protection program was working. “The plan is functioning as intended,” said David Hoth, assistant field supervisor in the U.S. Fish and Wildlife’s southwest region.
The Defenders of Wildlife’s Li, however, said the state still has work ahead of it: “Texas has to do more than normal to regain public trust about this agreement.”
This story is an American-Statesman exclusive that reflects the newspaper’s focus on covering environmental issues in Central Texas. Environmental reporter Asher Price and investigative reporter Eric Dexheimer have also teamed up for an in-depth examination of the tension between Texas state officials and the federal wildlife regulators over endangered species protections.