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Listings under ESA to heat up

Texas comptroller is the lead person in the state on endangered species. No single, definitive list of all the species in question exists. Prepare to litigate.

It’s a case of a list that doesn’t exist and a lawsuit that most certainly does. And that juxtaposition of elements has Texas Comptroller Susan Combs frustrated.

That’s because, in two different legislative sessions, the Texas legislature made the comptroller the lead person in the state on endangered species, she told cattlemen attending the fall meeting of the Texas and Southwestern Cattle Raisers Association recently in Lubbock. In response, Combs set up an interagency task force charged with looking at the potential economic impact of endangered species listings, as well as the economic impact of other federal regulations, such as the Clean Air Act, on Texans.

The source of Combs’ recent frustration is a lawsuit filed by several environmental groups, including the Center for Biological Diversity. The suit said the U.S. Fish and Wildlife Service (USFWS) wasn’t moving fast enough on endangered species listings. Under a recent settlement, USFWS is now obligated to list more than 700 species nationwide.

How many of those are in Texas? That’s another frustration—there is no single, definitive list of all the species in question, Combs says. However, as best she can find out, 111 of those species live in Texas.

What’s more, USFWS says that due to the large number of species, they won’t be able to conduct the research needed to fully determine each species’ status. Thus, they will rely on the information provided in the petition seeking its listing and on information they already have on file. Absent any information already in their files, they will rely completely on the information provided in the petition.

“What that means is, it is now a complete sham,” Combs told the cattlemen. “If you don’t have an obligation for correct data, you can put gobbledygook out, because you’re not going to be held to any evidentiary standard.” That also means, she says, that the burden of scientific proof has now shifted to the regulated industries. “When a listing agency has no perceived obligation or ability to do the research necessary, we must of necessity do the research.”

As an example, she holds up the Dunes Sagebrush Lizard, which lives in the sandy country of the Permian Basin in West Texas. That’s important to the Texas economy because the Permian Basin produces 20 percent of the nation’s crude oil from the lower 48 states.

Last April, Combs learned that, contrary to her belief that USFWS wasn’t going to move on listing the lizard under the Endangered Species Act, they changed their minds and were ready to rock and roll. However, they didn’t have any data on the lizard in Texas; they only had data from New Mexico. Because of budget concerns, they had no plans for researching the full extent of the lizard’s range in Texas or the estimated numbers of lizards occupying that range. Add to that situation that by the time Combs learned all this, it was May and the lizard is a seasonal critter, only lounging in the dunes until July.

“I called the oil and gas people and said you’ve got to get out there, now, and find some lizards,” Combs said. The industry did, hiring 15 biologists who collected data that can be used in answering the proposed listing.

As this situation plays out, Combs suggests that Texans consider three things:

 Number one, prepare to litigate. “Number 2, talk to everybody else. Make a coalition. Do not sit and wait, because they are coming. Number 3, we do not have enough science.”

Combs says it will be necessary to certify people to collect the necessary data. “If we can get Fish and Wildlife to agree that there is a protocol for spotting these guys (endangered species), we can be believed.”

But most importantly, she told the cattlemen, get involved. “We spend our time on our farms and ranches doing our day jobs. It’s not going to be enough. It’s flat not going to be enough. Because the burden of proof has shifted to us, we’re going to have to go the political route and we’re going to have to get serious about this.”

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