EXCLUSIVE: Citing fatal flaws, Texas rewrites plan to save rare lizard


The Texas Conservation Plan to protect the dunes sagebrush lizard was created to avoid federal regulation.

Environmentalists said the plan favored oil and gas companies over species protection.

After trying to fix it with patches, state officials decided to rewrite the entire plan.

In 2012, fearing that the federal government’s move to protect a small reptile could cripple the oil and gas business, Texas unveiled its own plan to look after the dunes sagebrush lizard and its habitat in the middle of the petroleum-rich Permian Basin.

Unlike other states, in Texas species protection falls to the head financial officer. The Texas Conservation Plan, shepherded by then-Comptroller Susan Combs, enlisted oil and gas companies to voluntarily help preserve the lizard’s habitat.

Although the plan succeeded in fending off the U.S. Fish and Wildlife Service’s efforts to designate the animal as endangered — and the strict land-use regulations that would have accompanied it — conservationists panned it as favoring petroleum interests over the species. “It stunk to high heaven,” recalled Gary Mowad, who ran the U.S. Fish and Wildlife Service’s Texas office between 2010 and 2013. “It should have never been passed.”

Now, five years on, state officials are conceding that the Texas lizard protection plan did in fact have fatal flaws. After trying to patch a series of problems over the past two years with policy Band-Aids, regulators in recent weeks said they are effectively rewriting the entire Texas Conservation Plan from scratch.

“The more we looked at the program, the more we realized there were systemic problems,” said Robert Gulley, an endangered species policy expert hired by Comptroller Glenn Hegar in 2015 to oversee the division.

BACKGROUND: How Texas fights endangered species protections, critter by critter

Documents and interviews show the overhaul was prompted by a series of increasingly unbridgeable gaps in the original blueprint to protect the lizard.

When it persuaded federal regulators to allow Texas to care for the tiny tan lizard without federal meddling, Combs’ office predicted that oil and gas companies whose holdings represented more than 70 percent of the animal’s Permian Basin habitat would sign on to the state’s plan.

Yet in recent years, the amount of habitat that the industry actually agreed to protect has been closer to 50 percent — considerably less than promised. In fact, the earlier, higher estimates were adjusted downward only months after the U.S. Fish and Wildlife Service signed off on the Texas plan, Gulley said.

Lizard habitat identified by the original Texas Conservation Plan also appears to have been dramatically incomplete. Although newer maps based on recent studies are still being drawn, Gulley said the dunes sagebrush lizard’s territory could turn out to be twice as large as originally plotted in 2012.

Perhaps the most significant failure of the old Texas Conservation Plan, however, was its inability to address the sudden arrival of sand-mining companies. Sand is a crucial tool for fracking, the process by which petroleum companies blast a sand and water mix into the ground, opening fissures to extract more oil and gas.

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Over the past year, sand mining has become a booming business in the Permian Basin, churning up thousands of acres of lizard habitat. Yet the Texas Conservation Plan applies only to oil and gas companies, so the comptroller’s office has had no good way to enlist the new companies in the effort to protect the lizard.

Taken together, the glitches resulted in a system increasingly ill-equipped to protect the species it was designed to save.

Documents show that since 2012, oil and gas companies that signed on to the Texas Conservation Plan have disrupted only 300 acres of lizard habitat. Yet more than 10 times that has been upended by petroleum and sand mining companies that decided not to participate.

“We are concerned the (Texas Conservation Plan) may not have yet achieved the anticipated … conservation and protection levels,” an executive from the U.S. Fish and Wildlife Service’s regional office in New Mexico wrote last month in a letter supporting the state’s overhaul.

Texas sand mining unregulated

Industry representatives have responded cautiously to Hegar’s Texas Conservation Plan rewrite. “We recognize the plan needed to be updated,” said Ben Shepperd, president of the Permian Basin Petroleum Association. But he added that he hadn’t had time to review the details yet.

Todd Staples, president of the Texas Oil & Gas Association and former state agriculture commissioner, also declined to go into specifics, writing that the association’s members “continue to work closely with the Comptroller’s office on the most effective management of the plan to protect the species.”

Some of the Texas Conservation Plan’s most vocal critics applauded the overhaul. “I think what Dr. Gulley has done is very, very strong and a terrific step in the right direction,” said Melinda Taylor, associate director of the Kay Bailey Hutchison Center for Energy, Law and Business at the University of Texas.

Environmental groups say the most immediate threat to the efforts to protect the rare lizard has been the rapid growth of sand mining operations, which value the same type of sand favored by the lizard. “There’s been quite an expansion even in the past few months,” said Ya-Wei Li, director of the Center for Conservation Innovation at the Defenders of Wildlife, which has mapped the industry’s explosive growth. Texas legislators have ordered a study on the business ahead of the next legislative session.

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Much of the sand used in the Permian Basin was formerly being brought from Wisconsin, where the business is “highly regulated,” said Roberta Walls, who oversees the industry for Wisconsin’s Department of Natural Resources. Sand mining companies in Wisconsin must apply for air and stormwater permits that take into account potential impacts on rare species. Post-mining reclamation is also overseen by that state.

Texas, however, does not monitor the industry, whose operations can extract hundreds of truckloads daily from pits that reach 80 feet deep, giving state regulators little leverage over the operations. Of the 17 sand companies now in business, only half have agreed to voluntarily avoid or restore any habitat destroyed by their operations, according to the comptroller’s office.

Gulley said the conservation plan rewrite hopes to enlist the companies in the lizard protection efforts. In the meantime, the sand industry has disrupted about 1,000 acres of lizard habitat over the past eight months alone.

Land swaps ineffective

Sand mining was only one of several holes in the original Texas plan in need of patching. “We’d continually go from one thing to the next,” Gulley said.

A fundamental stumbling block was accurately identifying where in West Texas the dunes sagebrush lizard actually could be found. Environmentalists had dismissed the plan’s mapping, based on a single 2011 study, as hastily and poorly done, with little foundation in on-the-ground science.

“The way the habitat was delineated could’ve been drawn by an eighth-grader with a Big Chief pad and three or four crayons,” Mowad said.

A popular credit swap program meant to save habitat also turned out to be largely useless. Under the system, oil and gas companies paid a contractor to remove large clumps of mesquite on private ranch land in exchange for permission to excavate on comparably sized lizard habitat on their own drill sites.

For the oil and gas companies, “it was something that could be done rapidly and efficiently,” Gulley said. Local ranchers also benefited from the paid landscaping.

Yet the trade system has provided little, if any, benefit to the lizard. There often was little consideration as to whether the mesquite removal was being done on land genuinely favorable to the species. More fundamentally, recent research has shown that clearing the scrubby trees did virtually nothing to improve living conditions for the lizard.

Hegar’s office already had made adjustments to the old lizard-protection plan. In 2016, the comptroller fired the nonprofit organization that had been created by the petroleum industry to oversee the project.

The Texas Habitat Conservation Foundation, whose single employee was monitored by a board selected by oil and gas companies, had drawn criticism for failing to watch the companies paying its expenses. In 2013, Defenders of Wildlife reported that even while the foundation was reporting no disturbance of lizard habitat in certain areas, satellite photos taken by the national conservation organization showed that roads, wells and other infrastructure had been built on the land.

And while the conservation plan called for lizard habitat hit by surface disturbances to be mitigated or repaired — removing abandoned concrete well pads and roads, for example — between 2013 and 2014 the comptroller’s office determined the Texas Habitat Conservation Foundation had failed to do the work on several sites. It also had permitted oil companies to self-report on how well they were protecting sensitive habitat, rather than independently verifying the work.

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