Sand-min­ing rush up­sets lizard plan

State’s pro­tec­tion pact didn’t count on thirst for frack­ing ma­te­rial.

Austin American-Statesman Sunday - - FRONT PAGE - By Eric Dex­heimer

A sud­den in­flux of min­ing com­pa­nies scrap­ing the West Texas oil patch for sand to use in frack­ing op­er­a­tions has dis­rupted nearly as much highly sen­si­tive habi­tat of a rare lizard in the last three months as the oil and gas in­dus­try had in the pre­vi­ous five years, ac­cord­ing to state of­fi­cials and a con­ser­va­tion group that mon­i­tors the area.

The de­vel­op­ment, they say, ex­poses deep and po­ten­tially fa­tal flaws in the state’s much-vaunted, pri­vate-pub­lic plan to pro­tect the rare dunes sage­brush lizard.

The Texas Con­ser­va­tion Plan was adopted in 2012 as a way to avoid the land-use re­stric­tions that would ap­ply if the U.S. Fish and Wildlife Ser­vice of­fi­cially listed the small brown lizard as en­dan­gered. Pushed by then-Comptroller Su­san Combs, an out­spo­ken critic of such list­ings, the deal en­listed oil and gas com­pa­nies to pro­tect the species by pay­ing to mon­i­tor and min­i­mize dam­age to its Per­mian Basin habi­tat. Con­ser­va­tion groups, who chal­lenged the plan in court as un­en­force­able be­cause it was vol­un­tary, ul­ti­mately lost their case.

The agree­ment was hailed as a vic­tory that would pro­tect the lizard while al­low­ing Texas’ pow­er­ful oil in­dus­try to op­er­ate with min­i­mal re­stric­tions. Yet the ar­rival of the sand com­pa­nies has pro­vided a stark il­lus­tra­tion of the plan’s lim­i­ta­tions.

The Texas plan didn’t an­tic­i­pate the pos­si­bil­ity of an­other large in­dus­try threat­en­ing the lizard’s habi­tat.

So the comptroller’s of­fice, which over­sees the state’s en­dan­gered species, was caught by sur­prise when the frack­ing sand com­pa­nies started churn­ing up sand ear­lier this sum­mer. Even now, with the threat in view, the plan sup­plies state of­fi­cials with no tools to com­pel the sand-min­ing com­pa­nies to join the ef­fort to pro­tect the lizard.

The comptroller “has no au­thor­ity to stop the de­vel­op­ment of frac-sand op­er­a­tions,” Robert Gul­ley, who over­sees en­dan­gered species is­sues for Comptroller Glenn He­gar, wrote in a let­ter last week to the U.S. Fish and Wildlife Ser­vice alert­ing the agency to the threat. (The cor­re­spon­dence was first re­ported by the Texas Tribune.)

The sand com­pa­nies in­sist they in­tend to vol­un­tar­ily op­er­ate as good cit­i­zens. “The plan as drafted really doesn’t fit well with sand min­ing,” said Bud Brigham, an Austin oil­man whose At­las Sand hold­ings lie al­most en­tirely in tracts the state has des­ig­nated highly sen­si­tive lizard habi­tat. Still, he added, “We’ve worked ex­tremely hard to be good stew­ards of the land.”

Yet crit­ics who warned the Texas Con­ser­va­tion Plan was in­suf­fi­cient to pro­tect the lizard say the ar­rival of the sand-min­ing in­dus­try has con­firmed their fears. They note the state’s cur­rent predica­ment stands in marked con­trast to the au­thor­ity fed­eral reg­u­la­tors would have wielded had the species been of­fi­cially listed as en­dan­gered.

Not only would the com­pa­nies most likely have had to alert the Fish and Wildlife Ser­vice of their in­ten­tion be­fore they started op­er­a­tions, they “would have had to com­ply with con­ser­va­tion mea­sures, in­stead of it be­ing vol­un­tary as it is now,” said Ya-Wei Li, di­rec­tor of the Cen­ter for Con­ser­va­tion In­no­va­tion at the De­fend­ers of Wildlife, one of the or­ga­ni­za­tions that chal­lenged the Texas plan in court.

“There’s noth­ing really that can be done to stop the sand peo­ple,” said Gary Mowad, who as former head of the U.S. Fish and Wildlife Ser­vice’s Texas of­fice re­sisted the state’s ini­tia­tive.

In­dus­try de­mand soar­ing

Sand is a ba­sic com­po­nent of frack­ing, a min­ing tech­nique that has al­lowed pe­tro­leum com­pa­nies to ex­tract more oil and gas. Wa­ter is pumped into wells un­der high pres­sure, forc­ing open fis­sures in the rock. Sand blasted into the holes then keeps the cracks open, al­low­ing for oil and gas to be pumped out.

As frack­ing op­er­a­tions have be­come more so­phis­ti­cated, the amount of sand used in the process has sky­rock­eted. A re­cent in­vestor pre­sen­ta­tion by Hi-Crush Part­ners LP, one of the first sand com­pa­nies to open an oper­a­tion in the Per­mian Basin, pre­dicted in­dus­try de­mand would soar to 100 million tons an­nu­ally by next year, a 54 per­cent in­crease from 2014.

Pre­vi­ously, most of the sand has been mined from Mid­west states and shipped to min­ing sites. But with the soar­ing de­mand, in­dus­try ex­perts say the cost sav­ings of ac­quir­ing sand closer to the oil and gas wells be­came too great to ig­nore.

Yet con­ser­va­tion­ists say that the sand min­ing in West Texas im­per­ils the lizard’s sur­vival. The same sand that is best for frack­ing ap­pears to be the type pre­ferred by the lizard. A comptroller’s map of the Per­mian Basin’s known sand-min­ing op­er­a­tions shows a thin north-south arc of land near the New Mex­ico bor­der nearly over­lay­ing sen­si­tive lizard habi­tat.

They add that the stan­dard method of min­ing — dig­ging 80-foot-deep pits to ex­tract the sand — is un­avoid­ably dis­rup­tive. Once com­pleted, it can­not be eas­ily re­paired to re­store the habi­tat.

Brigham, who through At­las Sand controls 2,000 acres of land in the area and leases 4,000 more from the state’s Gen­eral Land Of­fice, dis­missed such fears. “The con­cern about the im­pact of sand min­ing is very much ex­ag­ger­ated,” he said.

He said that, de­spite his large hold­ings, the At­las oper­a­tion would dis­rupt fewer than 100 acres in the next three years, and re­claim nearly half of that. Brigham added that he has en­cour­aged other lo­cal min­ing com­pa­nies to adopt best prac­tices, and that he is fund­ing ad­di­tional re­search on the lizard and its habi­tat.

“The dunes sage­brush lizard is a very poorly un­der­stood species,” he said.

No ac­cess to some sites

The comptroller’s of­fice said it has iden­ti­fied 15 sand-min­ing com­pa­nies that have started op­er­a­tions in the Per­mian Basin, pri­mar­ily in Win­kler County, and se­cured com­mit­ments from sev­eral to join the lizard-pro­tec­tion ef­fort. Yet the process has ex­posed lim­i­ta­tions of the Texas plan’s abil­ity to re­act to new threats.

Gul­ley said his of­fice learned about the breadth of the min­ing boom in the heart of the lizard’s most sen­si­tive habi­tat only af­ter read­ing about it in a news­pa­per ar­ti­cle. Us­ing satel­lite im­ages of the area his of­fice re­views quar­terly, his staff last month no­ticed dis­tur­bances on the ground. Li said his or­ga­ni­za­tion’s mon­i­tor­ing of the Per­mian Basin picked up on the ac­tiv­ity, as well, with most of it start­ing in July.

The pre­cise ex­tent of the ac­tiv­ity has been a chal­lenge to pin­point, how­ever. While sev­eral of the com­pa­nies are pub­licly traded, and so re­port the out­lines of their ac­tiv­ity to in­vestors, oth­ers are pri­vately held.

Be­cause it can­not in­trude on the sand-min­ing com­pa­nies’ pri­vate prop­erty, the com­pany hired through the Texas Con­ser­va­tion Plan to keep an eye on the lizard habi­tat has only been able to in­fer sand-min­ing ac­tiv­ity by driv­ing by the op­er­a­tions.

“We just don’t have ac­cess to the sites, so we don’t have all the in­for­ma­tion we’d like to have,” Gul­ley said.

In the case of Ohio-based Fair­mount Santrol, whose op­er­a­tions lie in the lizard’s most sen­si­tive habi­tat, Gul­ley said he still didn’t know how many acres the com­pany con­trolled. State of­fi­cials haven’t yet been able to pin­point where three of the com­pa­nies in­tend to mine at all. And in one in­stance, Gul­ley con­ceded that he has been un­able to even iden­tify the sand-min­ing com­pany’s own­ers.

‘Reck­on­ing’ on the way

Even once all the sand-min­ing com­pa­nies are iden­ti­fied and their op­er­a­tions mapped, the state has lim­ited au­thor­ity to en­list their help in pro­tect­ing the lizard.

Gul­ley said his of­fice has so far com­mu­ni­cated with nine of the com­pa­nies, urg­ing them to work with the comptroller to min­i­mize dam­age to the lizard habi­tat.

Two of those, Black Moun­tain and Vista Sand, agreed to change their min­ing to avoid sen­si­tive land and to en­roll land most likely to pro­vide a home to the lizard in the state’s con­ser­va­tion plan. Two other com­pa­nies said they won’t mine on sen­si­tive lizard habi­tat. High Roller LLC re­cently in­di­cated a will­ing­ness to avoid ar­eas most likely to have lizards, he said.

Yet such agree­ments are vol­un­tary. And “as of now, nine of the re­main­ing 11 com­pa­nies ap­par­ently still plan to op­er­ate in (dunes sage­brush lizard) habi­tat or buf­fer in­clud­ing in very high like­li­hood of oc­cur­rence ar­eas,” Gul­ley wrote in his let­ter to the U.S. Fish and Wildlife Ser­vice. He said he was par­tic­u­larly con­cerned about the op­er­a­tions of At­las, Hi-Crush and Fair­mount, whose hold­ings were al­most en­tirely in tracts des­ig­nated as highly likely to con­tain lizards.

Gul­ley said the Texas Oil and Gas As­so­ci­a­tion and Per­mian Basin Pe­tro­leum As­so­ci­a­tion, whose mem­bers com­prise and con­tinue to sup­port the orig­i­nal Texas Con­ser­va­tion Plan, have urged the sand-min­ing com­pa­nies to work with the state. The in­dus­try has an in­cen­tive to en­list the sand com­pa­nies. If a threat to the lizard per­sists, fed­eral reg­u­la­tors may still step in and list the lizard as en­dan­gered, po­ten­tially lim­it­ing pe­tro­leum ex­trac­tion in the Per­mian Basin.

De­spite the ef­forts, Gul­ley said he fully ex­pects ei­ther the U.S. Fish and Wildlife Ser­vice will re­sume its ef­forts to list the lizard as en­dan­gered or con­ser­va­tion groups will rekin­dle their op­po­si­tion in court — a pos­si­bil­ity Li said the De­fend­ers of Wildlife is al­ready con­sid­er­ing.

“Ei­ther the U.S. Fish and Wildlife Ser­vice or a fed­eral judge will de­cide,” Gul­ley said. “There will be a reck­on­ing.”

The Texas plan didn’t an­tic­i­pate the pos­si­bil­ity of an­other large in­dus­try threat­en­ing the lizard’s habi­tat. So the comptroller’s of­fice, which over­sees the state’s en­dan­gered species, was caught by sur­prise when the frack­ing sand com­pa­nies started churn­ing up sand ear­lier this sum­mer. Even now, with the threat in view, the plan sup­plies state of­fi­cials with no tools to com­pel the sand-min­ing com­pa­nies to join the ef­fort to pro­tect the lizard.

MICHAEL T. HILL / U.S. FISH AND WILDLIFE SER­VICE

The dunes sage­brush lizard (Scelo­porus areni­co­lus) prefers the same sand that frack­ing in­ter­ests do.

RODOLFO GON­ZA­LEZ / AMER­I­CAN-STATES­MAN 2013

Bud Brigham, an Austin oil­man whose At­las Sand hold­ings lie al­most en­tirely in tracts the state has des­ig­nated as sen­si­tive habi­tat for the dunes sage­brush lizard, said he is fund­ing re­search on the “poorly un­der­stood” species.

U.S. FISH AND WILDLIFE SER­VICE

One ob­server ex­pects reg­u­la­tors to re­sume an ef­fort to list the dunes sage­brush lizard as an en­dan­gered species.

RALPH BARRERA / AMER­I­CAN-STATES­MAN 2016

State Comptroller Glenn He­gar, whose of­fice over­sees en­dan­gered species in Texas, has no au­thor­ity to stop the frack­ing sand op­er­a­tions, said Robert Gul­ley, who su­per­vises species is­sues in He­gar’s de­part­ment.

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