Aiming to reform a troubled state program designed to stave off federal habitat protections for a rare lizard species in the petroleum-rich Permian Basin, Texas Comptroller Glenn Hegar is asking the U.S. Fish and Wildlife Service to approve a new version, meant to address what Hegar’s office called the plan’s “systemic problems.”
The proposal, the latest turn over how to protect the dunes sagebrush lizard amid a threat of federal action, eliminates scientifically unsupported conservation options and defines ways for companies to avoid lizard habitat, enacts fees from some companies operating in the lizard habitat to support conservation efforts to offset habitat disturbances and includes incentives to focus industrial activities in degraded or nonhabitat areas.
“It’s fair to say we’re very pleased that it strikes balance of protecting species while also allowing growth and development in the Permian Basin,” said Robert Gulley, who oversees endangered species conservation for the Texas comptroller’s office.
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 has thus far 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 criticized it as favoring petroleum interests over the species.
And in early June, a pair of environmental groups again asked the Fish and Wildlife Service to consider the species endangered — this time citing the destruction of habitat by the newly booming sand-mining industry, which supports hydraulic fracturing.
With the sand miners not contemplated in the original conservation plan, the new petition further prompted Hegar’s office to act.
But even leaving aside the latest effort by environmentalists, the comptroller’s office had discovered a series of discomfiting facts about the effort to protect the lizard.
“Investigation revealed problems that were systemic and not amenable to piecemeal fixes,” the staff at the comptroller’s office wrote in a letter this month to U.S. Fish and Wildlife officials.
The oil and gas industry has protected less land than Combs had forecast. And the original Texas Conservation Plan appears to have vastly underestimated the size of dunes sagebrush lizard habitat.
A 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 ranchland in exchange for permission to excavate on comparably sized lizard habitat on their own drill sites.
Oil and gas companies liked the program. But there often was little consideration as to whether the mesquite removal was being done on land genuinely favorable to the species.
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 that a foundation monitoring the plan had failed to do the work on several sites.
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.
Sand mining has become a booming business in the Permian Basin, disrupting 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.
Gary Mowad, who oversaw the Texas office of the U.S. Fish and Wildlife Service from 2010 to 2013, said he gives the rewrite proposal high marks.
“This is how it should have been done the first time,” said Mowad, who now works as a consultant on environmental rules. “They fixed the problems that were in there, that literally made the plan ineffective and unlawful.”
The rewrite forces industry to make a calculation: On the one hand, the plan demands more of participants; on the other hand, a firmer plan could make an endangered listing — and onerous federal habitat protection — less likely.
U.S. Sen. John Cornyn, R-Texas, has argued that an endangered species listing for the lizard threatens “the jobs of nearly 27,000 Texans who work in the Permian Basin.”
Neither the Permian Basin Petroleum Association nor Combs, now a senior adviser to the U.S. secretary of the interior, responded to requests for comment.
“Our member companies are committed to preserving the species and doing so in a manner that allows for continued oil and gas activity in the region,” said Todd Staples, president of the Texas Oil and Gas Association. “We appreciate Comptroller Hegar’s dialogue with the industry and look forward to the process continuing with the U.S. Fish and Wildlife Service.”
‘Defensible in court’
About half of the 17 sand-mining companies operating in the basin have decided to participate in the current conservation plan.
The new plan is meant to be “defensible in court, and durable so that it doesn’t have to be amended over a 30-year period,” Gulley said. “The oil and gas industry wanted a plan that would provide that kind of certainty.”
In a letter to the New Mexico-based regional director of the U.S. Fish and Wildlife Service in early August, Deputy Comptroller Mike Reissig said the agreement, when approved, “will include new participants, and that the acreage enrolled will likely increase.”
The comptroller’s office, citing confidentiality clauses in the agreement, declined to release the names of companies currently participating in the program.
The companies, and anyone else, will have a chance to offer comments to the U.S. Fish and Wildlife Service in coming months.
Gulley said the federal government could make a decision on whether to give the revamped plan the green light by spring.