Texas shields free-market habitat program from federal scrutiny

When the Obama administration announced last summer that it was withdrawing its proposal to list the dunes sagebrush lizard as an endangered species, it assured the public that landowners, ranchers and energy developers in west Texas and southeast New Mexico had agreed to voluntarily preserve the reptile's shinnery oak dune habitat.

But a new report shows the U.S. Fish and Wildlife Service never reviewed the specific steps landowners in Texas had agreed to take to protect the lizard from oil wells, truck traffic and new transmission lines, casting doubt on whether future habitat loss could be stopped.

Moreover, key details of the Texas Conservation Plan remain unavailable to the public or FWS because the state considers them confidential under Texas law, according to the report by Defenders of Wildlife.

The findings raise questions about the effectiveness of candidate conservation agreements with assurances (CCAAs), which the service cited as its basis for withdrawing its lizard listing proposal (E&ENews PM, June 13, 2012).

The agreements allow private landowners to voluntarily commit to conserving wildlife habitat, in exchange for legal assurances that if a certain species is ever listed, participants will not face any additional land-use restrictions beyond those they already agreed to.


While CCAAs are relatively new -- FWS has finalized only 27 such agreements -- they have grown in popularity since the lizard listing was withdrawn and as Fish and Wildlife pursues final listing decisions on more than 250 other candidate species under the terms of a sweeping settlement with environmental groups.

Fish and Wildlife early last month announced approval of a separate CCAA with Oklahoma's Department of Wildlife Conservation for the lesser prairie chicken, a grayish-brown grouse the service has proposed listing as "threatened" and which was included in the settlement.

The Defenders report warns that future CCAAs should be more transparent and that the public should have more opportunity to comment before protections are denied to species that previously were deemed in need of them.

"Our investigation reveals serious problems with the service relying on the Texas agreement to not list the lizard," said Ya-Wei Li, an endangered species policy analyst at Defenders who co-authored the report.

"We are concerned that the problems with the dunes sagebrush lizard withdrawal decision will repeat themselves in future listing decisions," the report says.

In issuing his decision on the dunes sagebrush lizard last June, Fish and Wildlife Service Director Dan Ashe promised accountability from the scores of oil and gas companies, ranchers, and other land users who signed voluntary conservation agreements.

The agency in late 2010 had warned that oil and gas development, grazing, agriculture and other disturbances had destroyed about 40 percent of the lizard's habitat in the past three decades, reducing it from 1 million acres to 600,000 acres. The pale, 3-inch-long lizard depends on a shinnery oak dune system whose wind-hollowed depressions help it regulate its temperature, avoid predators and find food.

"If they don't live up to the agreements and we continue to lose the habitat for the dunes sagebrush lizard, then we can propose to list it," Ashe said at the time. While the agreements were voluntary, the threat of future Endangered Species Act restrictions would be incentive enough for landowners to honor their commitments, Ashe said.

The cornerstone of the withdrawal decision was conservation agreements totaling roughly 650,000 acres and covering 88 percent of the lizard's habitat, Ashe said. In New Mexico, more than 100 old drilling pads and associated roads within lizard habitat had been reclaimed, he said. In Texas, $800,000 was made available for permit holders to begin habitat restoration prior to any disturbance of the lizard's dune habitat.

"We believe there's clear and compelling evidence that these conservation agreements are going to be effective," he said.

The Environmental Defense Fund supported the move, calling farmers, ranchers and landowners "essential allies" in balancing wildlife protections with economic development and pointing to the establishment of a credit exchange that would help compensate for lost habitat.

But other environmental watchdogs didn't buy Ashe's assurances. The Center for Biological Diversity, for one, blamed the decision on oil industry lobbying and a Republican-led misinformation campaign. Part of the lizard's habitat overlaps the Permian Basin, which is responsible for roughly 20 percent of the nation's oil production.

The Texas conservation plan, the group said, gave landowners and oil and gas operators too much discretion to decide when to protect the lizard, with language such as "when possible," "when practical" and "when feasible" (Greenwire, March 23, 2012).

FWS doesn't dispute findings

Both the Texas and New Mexico CCAAs served as umbrella programs under which individual landowners or companies could enroll. Certificates of inclusion (CIs) describe the specific conservation steps individual enrollees commit to take.

In one sample CI, ConocoPhillips Co. agrees to limit surface disturbance activities and pay for mitigation to compensate for impacts to lizard habitat.

But the Defenders report said the Texas comptroller's office was unwilling to release any of the other CIs. Fish and Wildlife, in fact, did not have them and never reviewed them, according to the report.

The comptroller's office said the CIs are confidential -- to both FWS and the public -- under Texas law. Defenders' request for the information last September was denied.

"The ramifications of owning property publicly known to be habitat for a potentially endangered species are significant, including loss of property value, increases in trespassers, and perhaps even environmental terrorism directed at economically beneficial operations conducted on or near potentially endangered species habitats," James Nolan, an attorney in the comptroller's office, wrote in an Oct. 5, 2012, letter to Defenders.

New Mexico didn't have the same disclosure restrictions, Li said.

Without access to the Texas CIs, it is unclear how Fish and Wildlife could have known that they were adequate to preclude a listing, the report argues.

Moreover, while the FWS's withdrawal rule states that the Texas plan would limit habitat loss to 1 percent of lizard habitat within the first three years, the plan covered only 64 percent of the lizard's habitat at the time of the decision. Li said it is doubtful whether more landowners would join the voluntary CCAA after the threat of a listing had essentially been removed.

While Texas' disclosure laws appear to be among the strictest in the country, Li said FWS should ensure that future CCAAs are more transparent, to both FWS and the public.

The report urges FWS to improve the transparency of future decisions to withdraw protections for species that have previously been found to warrant protections. The public should also have an opportunity to comment, it said.

"With the listing decisions for the lesser prairie chicken and greater sage grouse around the corner, we believe that it has never been more important to get these candidate listing decisions right," Li said.

Fish and Wildlife did not dispute any points in the Defenders report but noted that it will continue to monitor implementation of the CCAAs in both New Mexico and Texas to ensure they are having their intended effect.

The monitoring plans call for Texas to provide regular reports and meet with Fish and Wildlife to ensure habitat goals are being met.

"Though there may be some habitat impacts, habitat restoration ... will offset this and have the positive effect of decreasing habitat fragmentation and providing for the longterm conservation of the species," the agency's monitoring plan states. "Only up to 10 percent of the [lizard] habitat may eventually be taken ... only if that same amount of habitat has already been created elsewhere by restoring previously developed habitat, or protecting habitat from mesquite encroachment."

According to the report, the Texas and New Mexico CCAAs were only the second instance where CCAAs have eliminated the need to list a candidate species. The other was in 2005, when FWS declined to list lesser and greater Adams Cave beetles based on a CCAA for both species.

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