Often at odds, the federal government and Texas came together last year to rescue the dunes sagebrush lizard from the brink of extinction.
But the deal, held up as a model of cooperation, may do more to shield energy companies from scrutiny than to protect the imperiled reptile dwelling in the West Texas oil patch.
The 14-month-old Texas Conservation Plan is threatened by potential conflicts of interest and a lack of transparency, while an advocacy group says there is evidence of oil and gas development in the tiny lizard’s habitat that has gone unreported to and unnoticed by state and federal officials.
So far, the state’s monthly reports to the U.S. Fish and Wildlife Service show that energy companies and other landowners have harmed only 1½ acres of the lizard’s habitat, which stretches across the vast Permian Basin, one the nation’s most prolific oil and gas fields.
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The number suggests that people are avoiding areas where the lizards live, but federal regulators do not know for certain. A foundation created by lobbyists for the oil and gas industry monitors and records disturbances to the reptile’s habitat for the state, while Texas law prevents the Fish and Wildlife Service, among others, from seeing key documents to verify the reports.
“The Fish and Wildlife Service has no idea what is going on and has no ability to follow up,” said Ya-Wei Li, a staff attorney for Defenders of Wildlife, a Washington, D.C.-based advocacy group. “They only know what Texas is telling them.”
Federal agency sued
Defenders of Wildlife has sued the Fish and Wildlife Service over the Texas plan, which was cited as the reason for not protecting the rare sand-dwelling lizard as an endangered species. The federal agency declined comment because of the pending litigation.
Under its agreement with Texas, the Fish and Wildlife Service would not require protections for the lizard, so long as the state took steps to preserve its habitat in the Permian Basin. Both sides heralded the deal in June 2012 as a new model for saving troubled species without crippling the region’s economy.
At the time, then-Interior Secretary Ken Salazar said the decision rested, in part, on the idea that conservation efforts by oil and gas companies and ranchers would help restore and maintain habitat for the creature. But he put the states and industry on notice that if conditions do not improve, the lizard could receive endangered-species protections.
The 3-inch lizard lives only among stands of shinnery oak, a relatively rare tree that thrives in the sand dunes of West Texas and New Mexico. Beneath the tree, which is more like a bush in height, the reptile buries itself in the sand to avoid predators and regulate its body temperature.
The Texas plan does not restrict development, but caps disturbances to 1 percent of the lizard’s range during the first three years.
The plan is voluntary and does not require participants to adopt any specific conservation measures. Ten energy companies and ranchers, controlling a combined 110,117 acres of lizard habitat, enrolled to avoid stricter federal rules for protecting the reptile.
Even then, about 45 percent of the lizard’s habitat in Texas is not enrolled in the program.
One biologist on duty
Those who enroll must file a certificate of inclusion with the Texas Comptroller’s Office, which is responsible for the state’s response to endangered species. The document details where the dunes lizard might be found, which actions the property owner will take to preserve habitat and for how long.
But the certificates are confidential under state law – even the Fish and Wildlife Service is not allowed to see them without the participant’s consent. In contrast, New Mexico, which employs similar agreements with landowners, makes them public.
Amid the secrecy, state Comptroller Susan Combs delegated the authority to monitor and verify compliance to a foundation formed by the Texas Oil and Gas Association and overseen by Warren Chisum, an industry lobbyist who previously served in the state House.
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The Texas Habitat Conservation Foundation employs one person, a certified wildlife biologist. The biologist conducts driving tours of enrolled properties, uses satellite imagery and reviews state drilling permits to ensure compliance, Combs spokeswoman Lauren Willis said.
The Comptroller’s Office and Chisum said there is no conflict of interest, saying there are checksand balances in place and plans for a third-party audit.
Defenders of Wildlife, however, says it has found at least three unreported instances of new oil pads, dirt roads and cleared land on property enrolled by Houston-based oil giant ConocoPhillips, the only company to publicly release its certificate of inclusion.
Using satellite images and drilling permits, the advocacy group said it was able to pinpoint the habitat disturbances in three West Texas counties over the past 14 months
A ConocoPhillips spokeswoman said there were several instances when the company wanted to drill in locations near the lizard’s habitat, but the state’s contracted biologist said no. Some well locations were moved to acceptable areas, and others were not drilled at all.
The company believes the wells have been drilled in compliance with the terms of its agreement with the state. And the Comptroller’s Office said the advocacy group’s methodology fell short of its own protocol for ensuring compliance.
Under its deal with Texas, ConocoPhillips would pay $35,000 for each new well it builds in high quality habitat and as much as $8,750 per acre of new development.
The money would go toward improving habitat in other areas, but even the company acknowledged in its certificate that the state plan has conflicting language about which disturbances must be mitigated.
The Comptroller’s Office, meanwhile, has not said how much it has collected in fees for disturbed habitat, citing the same state law that prevents the release of the enrollment certificates.
The program’s lack of transparency has troubled state Sen. Kel Seliger, R-Amarillo, who sponsored a bill that would have shifted responsibility from the Comptroller’s Office to a board involving several agencies, including the Texas Parks and Wildlife Department. His district includes part of the tiny lizard’s habitat.
“It’s unimaginable to have the program in the Office of the Comptroller, which has to contract out” daily monitoring to a non-profit group when other agencies have biologists on staff, he said.
Combs and major oil and gas interests fought the bill. The Legislature passed it in May, but Gov. Rick Perry vetoed it, saying he preferred the process to stay with a single agency rather than a nine-member board.