On June 12, 2012, the U.S. Fish & Wildlife Service decided that the dunes sagebrush lizard, a candidate species for over a decade, no longer warranted listing under the U.S. Endangered Species Act. Yet only 18 months earlier, it concluded that the species warranted listing as “endangered.” This abrupt reversal was based largely on two candidate conservation agreements for the species, one for New Mexico and another for Texas.
In a report released yesterday, we describe for the first time serious problems with the Service relying on the Texas agreement to support its decision. Some of these problems include the following:
- The Service is unable to determine what conservation measures participants will actually implement under the Texas agreement. This is the result of several compounding factors, including the vagueness of the agreement and the Service never having reviewed or approved any of the certificates of inclusion that describe what conservation measures participants committed to implementing (the New Mexico agreement, fortunately, does not have any of these problems).
- The confidentiality provisions of Texas law, as currently interpreted by the Texas Comptroller’s Office and the Texas Office of the Attorney General, will prevent the Service from reviewing any part of the original certificates of inclusion, unless participants voluntarily disclose their certificate (which only one participant has done).
- The Service’s decision relies largely on the claim that the Texas agreement limits habitat loss to only one percent within the first three years of implementing the agreement. We discovered that this limit cannot be ensured because the Service has not enrolled enough habitat (99 percent) under the Texas agreement. In fact, the Service was about 76,550 acres short of this goal as of May 2012.
We also recommend eight specific improvements to ESA policy to address these and other problems, so that they are not repeated in future listing decisions for candidate species. Some of these improvements can be implemented before the Service ever decides whether to list a candidate species. For example, the Service should create policy clarifying that the conservation goals for candidate species are identical to those for recovering listed species. Other improvements can be implemented as part of the listing decision. For example, the Service should more clearly explain why a candidate species no longer warrants listing based on both its biological status and the threats it faces. With listing decisions for high-profile species like the lesser prairie chicken and greater sage grouse around the corner, these recommendations are very timely.