Coordination Works | November 2, 2010 | Margaret Byfield --

Yesterday, Gray County, located near the top of the Texas Panhandle, delivered a Notice of Intent to Sue to the U.S. Fish and Wildlife Service (Service) for refusing to coordinate and prepare an Environmental Impact Statement (EIS) on a new electric transmission line.    

The Service is refusing to analyze the impact of a state approved 140 foot high transmission line and substation for the purpose of delivering wind-generated energy.  The transmission line will be routed through the occupied range of the Lesser Prairie Chicken; a species they are now considering for listing under the Endangered Species Act.

September 1^st, WildEarth Guardians, an environmental group that promotes itself as one that “protects and restores wildlife, wild rivers and wild places in the American West,” filed a petition against the Service in U.S. District Court, Colorado, to force the listing of the chicken. 

The Lesser Prairie Chicken (LPC) is a grassland nesting bird similar to the Sage Grouse and Sage Hen found in the West.  It lives in the five states of Kansas, Colorado, Oklahoma, New Mexico and Texas.  Until recently, the LPC was considered a game species in most of the states.  It wasn’t until last year that the Texas Parks and Wildlife Department stopped issuing hunting permits for the bird.

In 2009, the Service raised its status as a candidate for listing to level 2, giving it the highest priority, precluded only by funding limitations and priority of other species.  Now that WildEarth has filed its lawsuit, the Service is forced to formally review the species and make its recommendation based on the best available science.

A primary threat to the LPC identified by the Service and environmentalists is fragmentation of habitat by vertical structures like lattice towers used for electric transmission lines.  It is believed that the LPC avoids tall structures because they give its predators positions to locate and attack the chicken. According to bird biologists, they prefer landscapes with a mixture of grass and tall shrub brush.

In fact, in the Service’s 2009 Species Assessment, their number one recommendation for protecting the LPC was to “Reduce or eliminate upland construction of fence lines and utility lines.”  WildEarth agrees, citing power lines as a primary threat in their petition.

So, here is the game being played by the Service and WildEarth. 

The Texas Panhandle is considered part of the LPC’s “historic occupied range.”  Gray County is home to some of the species most viable habitat.  Private landowners in this area have successfully raised cattle and drilled for oil and gas in the area, all while maintaining habitat for the chicken. 

On September 15, 2010, the Public Utilities Commission of Texas (PUC) approved the construction of the Gray to Tesla CREZ (Competitive Renewable Energy Zone) transmission line, and later the connecting substation, placing both within the LPC’s prime occupied habitat.

A day before the PUC decision was issued the Texas Parks and Wildlife Department noticed them that the selected route “may very well contribute to the U.S. Fish and Wildlife Service’s listing of the Lesser Prairie Chicken as a federally protected Endangered Species.”

You would expect, of course, to have WildEarth Guardians or other environmentalists out in force protesting the approval of the line, given their grave concern for the survivability of the LPC.  Instead, there is silence.

You would also expect that the Service would step in and insist, at the very least, that the route be studied along with all reasonable alternatives, as they are required to do under the National Environmental Policy Act (NEPA).  Yet, they too have outright refused to do so.  Even though they have identified endangered species in the area, an element that triggers the NEPA process, they claim there is no “major federal action.”

Why the refusal to act?  One of the landowners was told by the Service’s field coordinator early in the study of the route that a NEPA analysis would not be necessary because Cross Texas Transmission (CTT), the private company authorized to build the line by the PUC, could prepare a habitat conservation plan (HCP) and pay mitigation.

Mitigation can mean different things, but in this case, it most likely indicates that CTT will be paying money to the Service that can be used to purchase land elsewhere to make up for the “occupied” land CTT is going to destroy.  The land used as “mitigation” for the line will be removed from the tax base and controlled by the Service directly or by a friendly environmental organization.

It’s a win-win situation for the government and the environmental group and a lose-lose scenario for landowners, the county, and private property.

In essence, CTT will be buying environmental clearance and the only ones who benefit will be the Service and environmental groups.  The Service will have more cause to list the species, additional money to purchase private land, and the ability to enforce the harsh restrictions of the Endangered Species Act over a five-state area.

The environmentalists get another species listed further encumbering property rights in a state that is 97% privately owned. 

But, the game is up.

A few months back, incoming Gray County Commissioner and landowner, Jeff Haley rallied his fellow Commissioners and neighbors to require coordination with the federal and state agencies.  Their first letter to the Service notified the agency that they were required to perform or, at a minimum, insist that an Environmental Impact Statement be prepared under NEPA.

The County is requiring the study be done so that all reasonable alternatives will be analyzed, the impact to the local economy considered, and the County’s position taken into account.  In the letter sent yesterday, they have given the Service seven days to respond and begin fulfilling their coordination responsibilities by meeting with them to discuss local impacts of the Gray-Tesla transmission line.

Gray County doesn’t oppose the project; they oppose the route which will severely impact the species and ultimately their local economy.

Cross Texas met and coordinated with the Gray County on October 4^th.  During the meeting, the project manager admitted that the planned substation connecting the Gray-Tesla line could be placed out of the LPC occupied range.  If this was done, the line through Gray County could also be moved and avoid the LPC range entirely.  This move would be a mere 1-3 miles from its current citing.

The solution is so obvious that it begs the question: Why didn’t the Service advocate this position more aggressively?  

Earlier this month the Service sent a letter to the County refusing to coordinate and prepare the EIS. The Service’ Texas State Administrator, Gary Mowad, explained that because their Field Coordinator attended a landowners’ meeting where a few of the county commissioners were in attendance, they fulfilled their coordination responsibility.  They also stated that “the only circumstance in which the Service would initiate NEPA would be if the transmission company decides to obtain an incidental take permit under the Endangered Species Act.”

Today, Gray County answered the Service’s refusal to follow the law by mailing them a Notice of Intent to Sue that lays out the Service’s clear violations.

This isn’t the first time federal agencies have failed to uphold their responsibilities under NEPA when mitigation is in play, but the game is up in the Texas Panhandle.  Savvy local officials like those in Gray County are not afraid to initiate the coordination process, stand up for their citizens and require that the Agency follow the law.