Sixteen years after it first petitioned, the Center for Biological Diversity, along with the Defenders of Wildlife, are asking that the U.S. Fish and Wildlife Service add the dunes sagebrush lizard to its endangered species list.
The initial petition, which set off a $60 million conservation effort by the oil and gas industry and led to a detailed conservation plan for the lizard by the state of Texas, was rejected by the Fish and Wildlife Service in June of 2012.
“Despite the Service’s analysis in its 2012 withdrawal finding, the TCP (Texas Conservation Plan) did not eliminate or adequately reduce the threats or improve the status of the DSL (dunes sagebrush lizard),” the petitioners said in a May 8 letter to Ryan Zinke, Secretary of the Interior.
“In fact, sand mining is now occurring in the species’ habitat and is not covered or even described in the TCP. Despite the efforts described in the TCP and the New Mexico CCA/As (conservation agreements), habitat fragmentation and destruction is ongoing and, in combination with the threats from invasive species and climate change, imperils the species.”
The proliferation of hydraulic fracturing — which has made the Permian Basin the largest oil producing area in North America — and its use of sand blasting technology in the lizard’s habitat is the latest in a long line of concerns for environmental groups.
While the vast majority of the lizard’s habitat is in New Mexico, the federal government has identified about 200,000 acres of it in seven border counties, a large swath of the oil-rich basin, in Texas.
Following guidelines set by the Texas Conservation Plan, about 300 of those 200,000 acres have been disturbed by the industry, according to a study sponsored by Texans for Natural Gas, which describes itself as a grassroots group that speaks to oil industry interests.
Should Fish and Wildlife reverse itself and give federal protection to the dunes sagebrush lizard, the impact on oil and gas production in Texas would be considerable, oil industry leaders told The Texas Monitor in interviews over the last two days.
Despite beginning discussions with sand mining company representatives about environmental concerns more than a year ago, national environmental groups have signaled that they want federal rather than state oversight of the lizard, Ben Shepperd, president of the Permian Basin Petroleum Association, said.
“We’re not terribly surprised by the petition,” Shepperd said. “Unfortunately, we haven’t done a good enough job getting out the message that millions of dollars have been spent, far more than would have been spent on protection had the lizard been under the federal ESA (Endangered Species Act). I think sometimes we paint the entire environmental movement with too broad a brush, but there are some who use the ESA as a blunt object to beat us over the head.”
Todd Staples, president of the Texas Oil and Gas Association, called the endangered species petition “unwarranted, with the purpose of shutting down the Texas oil and gas industry and threatening our energy supply and our national security.”
In a phone interview on the road, Staples said the filing and the way it is portrayed shortchanges the years of cooperative effort and millions of dollars spent by the industry to make certain the dunes sagebrush lizard thrives in West Texas.
“The reality is there would be no Texas Conservation Plan without the people in our industry stepping forward, working with the landowners and the Comptroller’s office on this plan. Our companies have some of the best scientists in the world working to make sure this habitat is protected.”
The petitioners and the federal officials involved over the years with the fight to get the lizard listed, disagree with Staples’ assessment. “Dunes sagebrush lizards have waited too long for the federal protection they desperately need to survive,” Center for Biological Diversity scientist, Chris Nagano told the Texas Tribune. “The only reason these rare lizards aren’t already protected is political interference by Susan Combs and the oil and gas industry, which is rapidly destroying the animals’ habitat.”
Gary Mowad, former head of Fish and Wildlife in Texas during the years the lizard’s conservation plan was being developed, told the Austin American-Statesman in February the authority for the species should have been kept at the the federal level.
“It stunk to high heaven,” Mowad said of the plan. “It should have never been passed.”
At the time, however, the federal level was being overrun by petitions — more than 1,000 filed by the Center for Biological Diversity and other environmental groups — to have a huge variety of species listed as endangered.
Since the passage of the Endangered Species Preservation Act in 1966 and the ESA that followed in 1973, Fish and Wildlife officials have listed more than 2,250 species in the U.S. and foreign countries. During that time, roughly 60 species were taken off the list.
Environmental groups filed the petitions in bulk, overwhelming the ability of Fish and Wildlife to meet its deadlines for review, according to the Texans for Natural Gas study. Petitioners followed by suing Fish and Wildlife.
The federal government agreed to a major settlement of 85 lawsuits and a schedule for species review in 2011, yet the Center for Biological Diversity filed another bulk petition on behalf of 53 species.
Steve Everley, a spokesman for Texans for Natural Gas, said this latest filing for the sagebrush lizard follows a familiar pattern.
“The activists’ tactics are pretty straightforward: file baseless petitions and lawsuits to create regulatory hurdles that will block or delay oil and gas projects, all in the name of saving species that they claim are endangered,” Everley told The Texas Monitor. “What activists are doing is not about saving the dunes sagebrush lizard; it’s about advancing a fringe political movement called ‘Keep-It-In-The-Ground.’ They don’t want oil and gas produced anywhere in the United States.”
Concerned the listing of the dunes sagebrush lizard would have “dampened, if not eliminated activity in the most prolific oil producing area in North America, if not the world,” oil and gas representatives agreed to work with then-Comptroller Susan Combs to create a state-run conservation plan, Shepperd said.
The oil and gas industry has since spent about $60 million to develop and maintain the plan, Shepperd said.
The federal government approved of the plan because, in June of 2012, Secretary of the Interior Ken Salazar announced Fish and Wildlife had declined to add the lizard to its endangered species list.
“This is a huge win for the Texas economy,” Combs told reporters at the time. “It’s a huge win for private property rights, and I think it’s a big win for [the] species.”
“It’s another example of how state-led, voluntary conservation efforts can actually help conserve species, as opposed to frivolous lawsuits and filings that cost taxpayers money and have proven woefully ineffective,” Everley said.
The plan came into question in February when a Statesman story suggested it was being scrapped because of “fatal flaws.” “The more we looked at the program, the more we realized there were systemic problems,” Robert Gulley, an endangered species expert hired to oversee the review for Comptroller Glenn Hegar, told the Statesman.
Much of the criticism of the old plan centered on its failure to address the impact of the growing need for sand in the fracking process and the impact of its use on sagebrush lizard habitat.
Rather than a threat to the conservation plan or the lizard, Staples said the sand mining issue was an opportunity to get buy-in from sand mining companies that had not participated in the original discussions.
“We began meeting with sand mining companies at the time we recognized the uptick,” Staples said.
“Initially, I think maybe the sand miners weren’t fully aware of all of the environmental challenges we’ve been dealing with,” Shepperd said. “The conversations have gone well. I think they understand that it’s in no one’s interest to ride roughshod over this.”
Even Melinda Taylor, a critic of the plan and associate director of the Kay Bailey Hutchison Center for Energy, Law and Business at the University of Texas, told the Statesman she endorsed updating the plan. “I think what Dr. Gulley has done is very, very strong and a terrific step in the right direction,” she said.
The consensus among industry experts is that sometime before its 90-day deadline, the Fish and Wildlife Service will agree to review the new petition in greater depth. There is also consensus that before it makes a decision on adding the dunes sagebrush lizard to the endangered species list, Fish and Wildlife will also have to review the efforts of the industry and the state to do the conservation on its own.
“This should be seen as a success story,” Everley said. “State officials, oil and gas operators, and sand mining companies have all taken proactive steps to mitigate impacts. Conservation and responsible energy development not only can coexist, they already do.”
Mark Lisheron can be reached at [email protected]