ENDANGERED SPECIES:

Tiny lizard a big headache for Obama admin in Southwest oil fields

President Obama in New Mexico this week touted an eight-year surge in domestic oil production and promised to drill "everywhere we can" to increase supplies and create new jobs.

But not far from the oil well where he spoke, a scaly, elusive creature was lurking underfoot.

While Obama made no mention of the dunes sagebrush lizard in his 11-minute speech, the 3-inch-long reptile has become a political lightning rod in a swing state the president hopes to clinch in the November election.

By mid-June, Interior Department scientists must decide whether to finalize a proposal to list the lizard under the Endangered Species Act, a move that would infuriate the oil and gas industry Obama sought to placate in Wednesday's speech.

The lizard's sand dune habitat overlaps the Permian Basin in southeastern New Mexico and West Texas, an area responsible for roughly 20 percent of the oil produced in the lower 48 states.

A federal listing, energy officials and Republican lawmakers warn, would cause a permitting gridlock, crimping production and threatening thousands of jobs. Federal officials and environmentalists say such dire predictions are grossly overblown (Land Letter, Nov. 7, 2011).

Still, a group of local protesters awaited Obama's arrival in Roswell this week holding signs to remind the president not to list the lizard.

"New Mexicans are faced with the threat of losing their jobs in the oil fields as a direct result of this administration's determination to list the dunes sagebrush lizard," said Rep. Steve Pearce (R-N.M.), who is the former owner of an oil-field service company. "His visit did little to address these concerns, just as his energy policies have done little to actually help increase oil production."

Amid intense political pressure, the Fish and Wildlife Service last December decided to delay its final listing decision by an additional six months, citing "substantial disagreement" over the data used to inform its proposal (E&ENews PM, Dec. 1, 2011).

The extension -- a seldom-used provision under the 1973 law -- drew fire from environmentalists who accused the president of subverting science for political expedience.

"The lizard has become quite the political football in the Permian Basin," said Jay Lininger, an ecologist for the Center for Biological Diversity who is based in Albuquerque.

But unlike the Keystone XL pipeline, a much higher-profile energy project whose ultimate fate the president will decide after the election, a decision on the lizard must come by early summer.

Interior recently announced it has signed new conservation agreements in Texas and New Mexico that allow landowners and industries to take voluntary steps to safeguard the lizard. The agreements, known as "candidate conservation agreements with assurances" (CCAA), include steps such as avoiding herbicide use in the lizard's dune hideouts and reducing the footprint of oil and gas infrastructure.

Texas Comptroller Susan Combs said the plan will allow the conservation of lizard habitat without stifling vital sectors of the economy including oil and gas and agriculture.

Legal hurdles

While voluntary conservation plans have rarely, if ever, allowed the agency to withdraw a proposed listing, Interior officials appear hopeful new regulations can be avoided.

"We have created what is approximately a million-acre conservation area that will allow these assurances to be there that may actually keep us in a position where we can say that the lizard [listing] is not warranted," Interior Secretary Ken Salazar said last month on Capitol Hill. "We're not there yet, but we're working on it."

But the agency could find itself in legal hot water if it backtracks on the listing proposal. In at least two cases, federal courts have ruled against the government when it decided to drop proposed listings based on newly minted conservation plans.

A federal court in Oregon declared the National Marine Fisheries Service had improperly relied on the state's voluntary conservation plan when it withdrew a proposal to list the coho salmon in 1997. That same year, a federal court in Texas overturned FWS's decision to withdraw its proposed listing of the rare Barton Springs salamander, arguing the state's conservation plan does "not take any tangible steps to reduce the immediate threat to the species."

Both cases could be relevant in New Mexico, said Patrick Parenteau, an environmental law professor at Vermont Law School.

"If the plan is full of promises for prospective action, that's going to be a problem," he said. "The Oregon court said it actually has to be federally enforceable."

Lininger, of CBD, said the Texas plan gives landowners and oil and gas operators too much discretion to decide when to protect the lizard. The state's plan is riddled with phrases such as "when possible," "when practical" and "when feasible." Combs, the Texas comptroller, has called the plan "purely voluntary."

"Every single one of them is at the discretion of the operator," Lininger said. "The way they designed this is to give the oil and gas industry a get-out-of-jail-free card."

Tom Buckley, a spokesman for FWS, said there are very few examples of when protections are proposed for a species but that a federal listing is not ultimately carried out.

FWS issued its draft listing rule in December 2010, arguing the lizard "faces immediate and significant threats due to oil and gas activities, and herbicide treatments."

"I'm not saying this couldn't be different," Buckley said. But, "when you get to the point of a species being proposed for listing, it's usually pretty far down the slope of heading toward extinction."

To halt a listing in progress, he said, the agency would need proof that not only will the removal of threats stop the species' decline, it will also spur a population increase.

The agency will be examining each states' conservation plans and population and habitat data submitted by Texas A&M University, among other materials, he said.

Threats persist

Lee Fitzgerald, a professor of ecology at Texas A&M whose team conducted the lizard survey, said the law's definition will require a listing if the agency finds populations of the species have declined and disappeared and threats to the species and its habitat are ongoing.

"If the lizard were not to receive any kind of protection, and the habitat on which it depends continued to be lost and degraded, the species' future would be uncertain," said Fitzgerald, who has studied the lizard since 1994.

Oil and gas development, grazing, agriculture and other disturbances have destroyed about 40 percent of the lizard's habitat in the past three decades, from 1 million acres to 600,000 acres, according to FWS. In Texas, the lizards no longer occupy 86 percent of historically occupied sites, the agency found.

In addition, many areas occupied by the lizard are targeted for future drilling, which could further fragment the lizard's shinnery oak habitat with roads and well pads, pipelines and power lines. In one Bureau of Land Management district that incorporates all of the lizard's habitat in New Mexico, roughly 100 new wells are expected to be drilled each year over the next two decades, FWS said.

At the same time, environmentalists are promising a federal listing -- which would require federal agencies to consult with FWS to ensure their actions will not jeopardize the lizard while requiring permits to kill or disturb the animals -- would not drive the oil and gas industry out of business.

"The fact that dunes sagebrush lizard habitat spans less than 2 percent of the Permian Basin hasn't stopped oil-polluted politicians from claiming that protecting the lizard will destroy industry," CBD's Taylor McKinnon said.

"The lizard, not the oil and gas industry, is at risk of extinction -- and industry's refusal to yield even the last tiny slivers of habitat to prevent that extinction underscores the need for federal protections."