Copyright: Energywire
By: Nathanial Gronewold, E&E reporter
HOUSTON — The state of Texas and other oil and gas industry supporters are advising energy companies to prepare for a decades-long fight over plant and animal conservation and the Endangered Species Act.
Next month, the U.S. Fish and Wildlife Service is expected to make a decision on whether to list the lesser prairie chicken, a species inhabiting prime drilling land in the Texas Panhandle, as threatened or endangered. Industry opposes that move and is hoping to win over FWS with their own protection plan as they successfully did with the dunes sagebrush lizard in the West Texas oil patch.
But the industry is being warned that the lesser prairie chicken is just the tip of an iceberg. The Texas Parks and Wildlife Department estimates that about 30 separate species in the state could be up for consideration next. David Blackmon, an industry adviser with FTI Consulting, said oil and gas companies could find themselves fighting cases involving as many as 250 individual species in the coming years. Just a handful of new ESA listings could seriously hamper drilling activity in Texas, he said.
“There will be a lot of litigation around it, and that’s never a productive way to spend money,” Blackmon said. “The requirements that come down with a listing can result in time delays in getting your work done … it can result in feasibility restrictions around mating seasons and migration seasons.”
In an interview, Blackmon pointed out the problems oil and gas companies have faced with meeting ESA requirements in the Rocky Mountains for the past 20 years. In California, “whole regions” have been designated off-limits to drillers due to ESA listings, he said.
Blackmon and others gave an impassioned plea to oil interests at a recent oil and gas prospects conference, urging companies to get ahead of the threat and develop a response strategy. They oppose listing the lesser prairie chicken, fearing that could bog down drillers in expensive conservation fees and litigation, burdens that may force smaller operators out of certain promising tight oil fields.
The state of Texas is also intervening. Last month, the office of the Texas Comptroller of Public Accounts launched an initiative to get state universities involved in researching dozens of contested species to determine if any future ESA listings are warranted. In an interview, Comptroller Susan Combs said the research grants on offer are a deliberate push to get ahead of future FWS reviews (EnergyWire, Jan. 28).
“What we’re trying to do is help Fish and Wildlife have more information upfront so that their decisions then are based on really good science,” she said.
Conservation groups say they are not backing down as they wait for FWS to consider the status of several more species that call Texas home. They are already fighting the lizard decision in the courts and are pushing firmly for the lesser prairie chicken to be listed.
“We’re in the middle of an extinction crisis, and there’s more and more people, and more and more development, and more and more fossil fuels, and less and less habitat,” said Tierra Curry, a senior scientist at the Center for Biological Diversity and who is involved in the effort to get FWS to move forward on listing considerations. “The number of endangered species is going to grow as we develop more and more habitat.”
Both sides see the dunes sagebrush lizard fight as round one of this conflict. Up for round two is next month’s lesser prairie chicken decision. That bird’s habitat covers five states and encompasses some of the most promising oil and gas real estate in the country, including the Texas Panhandle.
Adam Riggsbee, a principal at the Austin-based conservation firm RiverBank Ecosystems, said the forthcoming decision on the chicken’s status is the hottest topic in his industry.
“You sort of have the convergence of multiple interests in a high-stakes game here on the southern prairie,” he said. “You’ve got some of the biggest plays in the oil and gas industry right now in North America that could be affected by a listing of this bird, there’s no doubt about that.”
‘This is a private-land state’
Riggsbee and others in his industry are critical of the plan being promoted by the Western Association of Fish and Wildlife Agencies (WAFWA that’s supported by oil and gas interests.
That group’s Range-wide Conservation Plan was recently submitted to FWS for consideration as an alternative to a listing. The plan is voluntary, so its organizers are scrambling to get as many industry stakeholders on board as quickly as possible to show the government that they are up to the task. A lesser prairie chicken listing would affect not only drilling but also pipeline construction, utility work and even the large Texas wind power industry, they say.
“It is very important to us that the interest of all of our members and at large the industry is represented in the way this plan is executed, put together and the way it moves forward hopefully to keep [the lesser prairie chicken] from being put on the endangered species list,” said Wayne Hughes, executive director of the Panhandle Producers & Royalty Owners Association, at the start of a December 2013 briefing on the WAFWA plan in Amarillo, Texas. He said getting the industry to buy in to the WAFWA plan — an arrangement similar to one in place for the dunes sagebrush lizard in the Permian Basin — is urgent “so that we can have a good faith show for the Fish and Wildlife Service.”
WAFWA’s plan would implement an incentive system for landowners to preserve and expand the lesser prairie chicken’s habitat, along with a credit system enabling off-site habitat conservation and the offsetting of negative impacts to the chicken’s rangeland on a 2-1 basis. It has already been endorsed by the Fish and Wildlife Service. FWS is now taking a closer look at a separate plan put forth by the American Habitat Center, a group formed from oil and gas interests along the lines of the Texas Habitat Conservation Foundation, which was founded by the industry to manage dunes sagebrush lizard habitat.
Comptroller Combs vigorously defends the habitat conservation foundation’s model, arguing that voluntary measures that emphasize control are key to winning over landowners and local oil and gas companies to species protections.
“Texas is 97 percent private land, so you sort of take your features where you find them,” she said. “This is a private-land state and people do want to be cooperative, but they are, as you well might imagine, suspicious of the federal government, and the federal government understands that, and they work through other entities and they get good, reliable partnerships.”
‘Full of legal uncertainties’
Private conservation bankers worry that there is too much flexibility built into the WAFWA plan in an effort to keep conservation efforts as cheap as possible. They support a conservation banking system that’s been a regular feature in habitat protection since 2003, instead of the more fluid, less permanent solution to protecting lesser prairie chicken habitat envisioned by WAFWA.
Wayne Walker of Common Ground Capital, a firm that’s been busy for two years identifying prime lesser prairie chicken habitat for conservation projects that can generate marketable credits, worries that WAFWA’s plan moves the government and industry away from proven habitat banking methods. The credit system WAFWA is proposing deals only with “term impacts,” he said, and does away with efforts to create permanently protected zones.
“Instead of having permanent offsets for impacts, which is what you normally do for species, we’re going to change those rules,” Walker said. “We’re going to create a whole new market and credit type that’s based on five- or ten-year credits, mostly five-year credits, and that, of course, cheapens the cost of conservation because you don’t have to have an easement on property, the endowment cost is less, and the belief is the industry will flock to this because it’s easier.”
Walker predicts that the industry will trade more affordable and flexible conservation efforts for greater risk of future litigation by outside environmental groups. Riggsbee agrees, arguing that lawsuits are almost certain if the Fish and Wildlife Service seems too willing to bend to the interests of landowners and developers over the interest of the lesser prairie chicken species.
“Unfortunately all indications would point to that they just picked what solutions were presented to them and that they are leaning toward accommodating,” he said. “Those particular solutions are full of legal uncertainties.”
Curry at the Center for Biological Diversity said her organization and others aligned with it oppose the voluntary approach that’s increasingly being promoted. That’s one reason they are attempting to force FWS to reverse course on the dunes sagebrush lizard.
“There has to be something legally binding in there somewhere that says we are not going to destroy the habitat of the species, and this isn’t present in a lot of the voluntary measures,” she said.
“There has to be some actual accountability in there somewhere,” Curry added.
‘Repeating history’
The Center for Biological Diversity and its allies will press for action on the status of 252 other species the government has committed to reviewing as part of a settlement reached in 2011 between the center, Fish and Wildlife Service, and WildEarth Guardians, Curry said. Fish and Wildlife has until September 2016 to finish that work.
Those species have been waiting for reviews for decades, Curry said. She said the environmental groups’ legal actions against FWS are meant to compel that understaffed and underfunded agency to do the work that it is charged to do.
FTI Consulting’s Blackmon sees a larger role to stymie oil and gas development, using the Endangered Species Act as an effective tool to accomplishing this.
“These species were targeted by these groups because they exist in large numbers over large geographic areas, and a listing of them would have maximum negative impact on development,” he argued. “If you end up having to deal with 20 different species — some of which have seasonal restrictions, some of which have provisions [that] require you to perform biological surveys or to be set back so many thousand feet from a nest or a hole that a lizard lives in — then pretty soon you run out of time in the year or land on which to actually do any development, and that’s the whole goal, strategy that these groups are following under this law.”
Scientists believe the population of lesser prairie chickens has been in sharp decline over the past decade. Drought conditions in 2011 and 2012 were particularly hard on the bird.
Walker at Common Ground Capital said it’s important for the sake of the chicken’s survival that the right conservation model be put in place. He points to a cousin of that species as an example of how difficult protecting the lesser prairie chicken could be.
The Attwater’s prairie chicken is making its final stand at a small wildlife refuge managed by FWS about an hour west of this oil and gas capital. Closely related to the lesser prairie chicken, the Attwater’s chicken was one of the first species put under protection in accordance with ESA, but Fish and Wildlife is still struggling to figure out how to make the population viable without captive breeding.
Attwater’s chickens were decimated by hunting and the development of the Texas and Louisiana coastal plains. In 1900, the government estimated its population at about 1 million. Today, fewer than 60 call the refuge home, while a smaller number of Attwater’s prairie chickens are being kept alive as part of a captive breeding program. Fish and Wildlife officials believe strongly that captive breeding is the only thing keeping this bird from going the way of the passenger pigeon.
“Big, un-fragmented landscapes are what these birds need,” Walker said. “Back in the ’60s, ’70s and ’80s … there were some ranches that could have been bought, large ranches to be permanently protected, and a lot of scientists think if that would have been done, you would have enough landscape left to have a viable Attwater’s chicken. To some extent, we’re kind of repeating history here.”