Austin American-Statesman

Texas seeks feds’ OK on new lizard plan

Comptrolle­r: Previous protection program had ‘systemic problems.’

- By Asher Price asherprice@statesman.com Eric Dexheimer edexheimer@statesman.com

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.

T he 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 landuse 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 destruc- tion of habitat by the newly booming sand-mining indus- try, 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.

Sand mining

The oil and gas industry has protected less land than Combs had forecast. And the original Texas Conser- vation 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 use- less. 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 hab- itat 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.

Perh a ps the most s ig- nificant failure of the old Texas Conservati­on Plan, however, was its inability to address the sudden arrival of sand-mining com- panies. 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.

High marks

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 were in there that that literally made the plan ineffectiv­e and unlawful.”

The rewrite forces indus- try 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 Pe r mian 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.

‘This is how it should have been done the first time.’ Gary Mowad Consultant who headed Texas office of U.S. Fish and Wildlife Service from 2010 to 2013

 ?? MIKE HILL / U.S. FISH AND WILDLIFE SERVICE 2012 ?? The Texas Conservati­on Plan has thus far succeeded in fending off the U.S. Fish and Wildlife Service’s efforts to designate the dunes sagebrush lizard as endangered.
MIKE HILL / U.S. FISH AND WILDLIFE SERVICE 2012 The Texas Conservati­on Plan has thus far succeeded in fending off the U.S. Fish and Wildlife Service’s efforts to designate the dunes sagebrush lizard as endangered.

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