MONAHANS, Texas -- A dispute this year pitting the 40-year-old Endangered Species Act against the powerful Texas oil and gas industry centers on a tiny lizard hiding somewhere in the sandy dunes surrounding this community.
About 3 inches in length, the dunes sagebrush lizard makes its home in West Texas and southeastern New Mexico, the epicenter of a new frenzy to unlock crude oil from tight formations using hydraulic fracturing. This sensitive species' only known habitat is the dune formations where batches of shinnery oak grow. Monahans Sandhills State Park, a popular sandbox here for people who live hundreds of miles from the nearest beach, is considered ideal habitat for the lizard.
The dunes sagebrush lizard is considered "vulnerable" by the International Union for Conservation of Nature, just one step away from "endangered." Cattle ranching has likely done the most damage to the lizard's population as ranchers cleared their lands of shinnery oak plants to make way for better grazing material, but drilling also has hurt the habitat.
Last year, environmental groups tried to get the lizard listed according to the Endangered Species Act (ESA). Texas state officials and oil interests fear that would put a major obstacle in their quest to unlock more hydrocarbons from the Permian Basin, historically the nation's largest oil patch.
Opponents of an ESA listing are now out to prove that they can protect the lizard, through a unique arrangement with the U.S. Fish and Wildlife Service that puts oil companies and state revenue collectors in the business of species conservation.
Texas officials are hopeful that the arrangement, organized by Texas A&M University and the state comptroller's office, could serve as a model of success that could influence debate over another species living in oil country -- the lesser prairie chicken, found in the Texas Panhandle. Today is the deadline for groups to submit their public comments on a proposal to list that species as threatened under the ESA, and a handful of lesser prairie chicken range states are hoping to prevent such a listing with their own conservation plans.
But conservationists, in particular the Center for Biological Diversity and its allies, strongly object to the conflict of interests inherent in the dunes sagebrush lizard arrangement. Those groups are now suing Fish and Wildlife to have a court force it to put the lizard on the ESA list of threatened species. FWS has one week to turn over its records on the case to the plaintiffs, as determined recently by a federal district court in Washington, D.C.
"These voluntary conservation agreements ... are not enough assurance that this lizard is going to be adequately protected," said Collette Adkins Giese, a staff attorney at the Center for Biological Diversity. "We just think the whole thing reeks of corruption and really is not going to save the species."
Supporters of the Texas Conservation Plan are pleading for patience, urging its critics to give them more time to prove that they can make it work. Less than two years old, the organization formed to oversee the plan, the Texas Habitat Conservation Foundation (THCF), has 110,000 acres of potential habitat enrolled so far, and 250,000 acres when buffer zones are included.
"For the most part we've captured all of the large shinnery dune complexes," said Jason Brooks, a former Texas Parks and Wildlife Department official now running THCF, during an interview at his office in nearby Midland.
Levels of protection for a mysterious little lizard
Brooks' office came under attack late last year when critics of the plan used Google satellite imagery to show that habitat that was supposedly protected was cleared to build an access road for drilling equipment. It turned out that the city of Midland used an existing easement it controlled to build a new water line for its growing population.
Though lizard habitat was hit by that construction, Brooks countered the skeptics by arguing that the case demonstrates how the conservation plan could be working. The construction proposal made its way to his desk before work commenced, and Brooks said he issued a recommendation that the most valuable shinnery oak habitat be avoided at all costs. It was, he said, though the water authorities never contacted him directly.
"I made some recommendations that they avoid the best-quality habitat," Brooks recalled. "They did avoid the best-quality habitat. They followed the recommendation."
THCF is working to sign up as many companies and landowners as it can to further ensure the survival of both the species and the foundation's mission. So far, it has 10 participants. Brooks' office must turn in monthly reports to FWS, and federal officials can nullify the entire agreement if they feel it's not doing enough to prevent future habitat loss. Failure to protect the lizard might also make it more difficult for the industry and state governments to keep the lesser prairie chicken off the endangered species list.
The foundation has identified shinnery bush and sand dunes lands in West Texas according to four degrees of likelihood that dunes sagebrush lizards will be found there, with level 4 lands indicated the highest probability. The Monahans Sandhills are rated as level 4 habitat.
Still, determining what constitutes best practices for protection of the species is difficult because not a lot is known about it. The small lizard spends most of the day hiding underground, becoming even more dormant during winter months. Hours of searching at the state park by an EnergyWire reporter revealed only possible tracks, but no lizards.
Adkins Giese at CBD acknowledged that the dunes sagebrush lizard isn't adequately understood.
"It's a species that we don't know a whole lot about," she said. "It buries itself in the sand. It's just not one of those that are easily studied."
But the species could face possible extinction, and the CBD, Defenders of Wildlife and others concerned are alarmed that it's the Texas comptroller overseeing this new initiative, and not the Texas Parks and Wildlife Department or federal conservation agents. They insist on pressing ahead with their lawsuit against FWS. Texas' comptroller and oil industry groups are intervening in the lawsuit on behalf of the agency.
"The Fish and Wildlife Service can't even review the terms of the agreement that the specific landowners enter into because of Texas confidentiality laws," Adkins Giese said.
Winning over skeptics
Supporters of the Texas plan express confidence that, over time, their methods and efforts can be shown to work. Brooks is also hopeful that better understanding and appreciation of what his foundation is trying to do might eventually win skeptical conservationists over.
The THCF is subcontracted with the office of state Comptroller Susan Combs to oversee the habitat protection and recovery aspects of the plan. Researchers at Texas A&M University are tasked with improving the scientific understanding of dunes sagebrush lizard behavior and biology.
Brooks says he's been busy for a about a year and a half enrolling participants into the voluntary conservation program, focusing on the landowners controlling the best habitat and the companies holding leases on those lands or firms showing interest in drilling in shinnery oak ranges. The enrollment process continues.
Once signed up, participants agree to protect habitat that has been mapped according to the level of likelihood of encountering lizards on the foundation's scale of 1 to 4. Where disturbances can't be avoided, companies agree to offset their impact by ensuring greater protections elsewhere. The foundation also oversees a market-based "conservation recovery award system," Brooks said, with funds for that administered by the comptroller.
"We're in charge of educating not only the general public at large but making sure that our participants are up to date with the knowledge that they need to have for the coordination of any development that they are looking at in the habitat or on enrolled acreage," Brooks explained.
He insisted that the foundation's compliance monitoring system was strong and would only become more so this year as survey techniques improve.
"We use aerial imagery, commercially available, and GIS analysis on these images from various different times to basically be able to tell anything that's happened within the habitat with fairly robust methods," he said. Monitoring efforts also include twice-monthly field inspections, where investigators "look for drilling rigs, heavy equipment, anything that would be a sign of potential disturbance."
Proponents of the THCF work say the comptroller's oversight isn't all that unusual. The person occupying that office was appointed chair of an Interagency Task Force on Economic Growth and Endangered Species by the state's Legislature back in 2009. An outline of the state's conservation plan for the lizard says the comptroller "actively seeks to balance economic growth and endangered species regulation, and to do so by developing strategic alliances among farmers, ranchers, industry, conservation groups and agencies, universities and research institutions."
That the state's main revenue collector and the oil and gas industry would intervene in such an active way to halt a FWS endangered species listing isn't surprising, either. The Endangered Species Act is considered a blunt instrument in environmental law circles, a powerful statute that can stop billions of dollars' worth of investments dead in their tracks. The most famous case continually cited is the 1978 Supreme Court decision that halted construction of a multimillion-dollar dam by the Tennessee Valley Authority to protect a tiny freshwater fish, the snail darter. It took an act of Congress to overturn that decision and get the dam built. The snail darter survived, with conservationists relocating some while discovering other populations in neighboring creeks and rivers.
But environmentalists defending the law's power and reach point to the premise under which it was initially drafted. There exist countless examples of biomedical discoveries and breakthroughs made possible by studying the genetic material of plant and animal species. Though extinction is a natural process, the ESA seeks to minimize human-caused extinctions on the principle of protecting possible genetic treasures for future generations. What seems to be only a lizard today might be the key to better medicines tomorrow.
Thus far, however, state officials have expressed far more alarm over the possible loss of oil and gas revenue than concern over the possible permanent extinction of yet more species by human activity. In a recent open letter opposing a possible ESA listing for the lesser prairie chicken, Texas Railroad Commissioner David Porter said the state's oil and gas regulators would vigorously fight the proposal because of the possibility of a listing "limiting exploration and production activity in the Permian Basin, one of the country's most prolific hydrocarbon-bearing regions."
Conservationists believe comments like this strongly suggest species like the dunes sagebrush lizard will never be a high priority for the state or its oil and gas industry, no matter what arrangements are made with federal regulators.
"We're quite skeptical that they'll do a good job protecting the animal," Adkins Giese said.