This commentary originally appeared in the Austin American-Statesman on February 23, 2014.
As California grapples with severe drought, federal regulations are making it harder to quench the state’s thirst. The acute water shortages now occurring in California are significantly caused by the release of huge volumes of water from reservoirs on behalf of the welfare of the purportedly endangered Delta Smelt.
Could this happen in Texas? The federal Endangered Species Act, or ESA, is expanding its regulatory purview over huge swaths of Texas. Until quite recently, the U.S. Fish and Wildlife Service focused its power under the ESA on the abundant federal lands of the western states. In the past few years, however, U.S. Fish and Wildlife has accelerated ESA actions on private land in Texas.
A U.S. Supreme Court ruling in 1978 made clear that regulatory protection of species listed as endangered or threatened is to be “accorded the highest of priorities … regardless of costs.” Balance human need with wildlife need, the ESA does not!
In 2012, the Permian Basin narrowly avoided a federal listing of the dunes sagebrush lizard and all the disruption to surging oil and gas businesses the listing would have entailed. The process, however, generated a contentious debate about the most appropriate way for the state and affected parties to respond to the Endangered Species Act. The issue is not likely to recede.
The lizard is only one of 100 species in Texas for which U.S. Fish and Wildlife will soon make listing decisions. The range of the lesser prairie chicken across five states covers some of the most valuable energy-producing areas in the country.
A decision to list the lesser prairie chicken under the ESA is anticipated in late March. And so continues the same debate about how to respond. How can Texas avoid the fate of a state like California where federal protection of endangered species denies access to water and blocks basic economic activity? Should there be a centralized state authority over response? Does the science justify listing the species? Should the listing be fought in court or pre-empted by self-imposed regulation? Is the Endangered Species Act so flawed that reform of the law by Congress is the only path forward?
A bill in the previous legislative session would have put the Texas Parks and Wildlife Department in the driver’s seat on endangered species matters. And though TPWD might seem a likely candidate, remember that the Texas legislature has long avoided giving this agency regulatory authority over private land use. For all of its history, Texas Parks and Wildlife has functioned as a state agency that champions private property rights, productive use of natural resources, voluntary stewardship programs and hunting. If responsible for implementation of endangered species plans, this state agency is ineluctably transformed into a regulatory agency imposing federal controls.
This legislation passed but was vetoed by Gov. Rick Perry. Yet now it appears that TPWD has adopted a role that exceeds the failed legislation. TPWD is now involved in a bold effort of the Western Association of Fish and Wildlife Agencies to develop a multi-state conservation plan for the lesser prairie chicken. The plan could encumber 41 million acres of land across five states, 7.8 million acres of which exist in Texas. This Western Association — not the state of Texas — would sign and oversee implementation of the plan in Texas. TPWD would implement on the ground. The executive director of TPWD is the president of the Western Association. Texas law does not give TPWD jurisdiction over federally listed endangered species.
There are simpler, less onerous, private alternatives to the one-size-fits-all approach of the Western Association. A private group representing diverse interests has developed a stakeholder strategy aimed at a smaller area and using more market-based measures at far less cost than the Western Association’s model. The stakeholder’s group estimates the mitigation cost per oil well perhaps 30 percent lower than the cost estimated in the Western Association’s plan. This money would flow to the Western Association.
Why one big plan? U.S. Fish and Wildlife is obligated to approve conservation plans and permits that meet the requirements of the ESA whether from a private party, business, political subdivision or private stakeholders group. More region-specific plans would more likely achieve effective protection and flexibility than a single plan for 41 million acres of diverse habitat and land use?
A vexing feature of the ESA debate in Texas is the insistence on an exclusive approach institutionalized in a single agency. Why not welcome creatively different methods? Sticking to the Texas model offers the best approach: protect property rights and market dynamics, resist expansion of state government and encourage diverse, private, voluntary wildlife protection.
White is a distinguished senior fellow-in-residence and the director for the Armstrong Center for Energy & the Environment. She is also former chairman for the Texas Commission on Environmental Quality.