Federal Register, Volume 77 Issue 118 (Tuesday, June 19, 2012)

[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36872-36899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14818]

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Vol. 77

Tuesday,

No. 118

June 19, 2012

Part IV

Department of the Interior

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Withdrawal of the
Proposed Rule To List Dunes Sagebrush Lizard; Proposed Rule

Federal Register / Vol. 77 , No. 118 / Tuesday, June 19, 2012 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0041; 4500030113]
RIN 1018-AV97

Endangered and Threatened Wildlife and Plants; Withdrawal of the
Proposed Rule To List Dunes Sagebrush Lizard

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the
proposed rule to list the dunes sagebrush lizard (Sceloporus
arenicolus) as endangered under the Endangered Species Act of 1973, as
amended (Act). This withdrawal is based on our conclusion that the
threats to the species as identified in the proposed rule no longer are
as significant as believed at the time of the proposed rule. We base
this conclusion on our analysis of current and future threats and
conservation efforts. We find the best scientific and commercial data
available indicate that the threats to the species and its habitat have
been reduced to the point that the species does not meet the statutory
definition of an endangered or threatened species. Therefore, we are
withdrawing our proposal to list the species as endangered.

ADDRESSES: The withdrawal of our proposed rule, comments, and
supplementary documents are available on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0041. Comments and
materials received, as well as supporting documentation used in the
preparation of this rule, are also available for public inspection, by
appointment, during normal business hours at: U.S. Fish and Wildlife
Service, New Mexico Ecological Services Field Office, 2105 Osuna Road
NE., Albuquerque, NM 87113, (505) 346-2525, facsimile (505) 346-2542.

FOR FURTHER INFORMATION CONTACT: Wally Murphy, Field Supervisor, New
Mexico Ecological Services Field Office (see ADDRESSES section). If you
use a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

Previous Federal Action

On December 30, 1982, we published our notice of review classifying
the sand dune lizard (dunes sagebrush lizard) as a Category 2 species
(47 FR 58454). Category 2 status included those taxa for which
information in the Service's possession indicated that a proposed rule
was possibly appropriate, but for which sufficient data on biological
vulnerability and threats were not available to support a proposed
rule.
Please note that we will be referring to this species throughout
this finding using the currently accepted common name of dunes
sagebrush lizard (Crother et al. 2008, p. 39).
On September 18, 1985, we published our notice of review
reclassifying the dunes sagebrush lizard as a Category 3C species (50
FR 37958). Category 3C status included taxa that were considered more
abundant or widespread than previously thought or not subject to
identifiable threats. Species in this category were not included in our
subsequent notices of review, unless their status had changed.
Therefore, in our notice of review on November 21, 1991 (56 FR 58804),
the dunes sagebrush lizard was not listed as a candidate species.
On November 15, 1994, our animal candidate notice of review once
again included the dune sagebrush lizard as a Category 2 species (59 FR
58982), indicating that its conservation status had changed. On
February 28, 1996, we published a Candidate Notice of Review (CNOR)
that announced changes to the way we identify candidates for listing
under the Act (61 FR 7596). In that document, we provided notice of our
intent to discontinue maintaining a list of Category 2 species, and we
dropped all former Category 2 species from the list. This was done in
order to reduce confusion about the conservation status of those
species, and to clarify that we no longer regarded them as candidate
species. As a result, the dunes sagebrush lizard did not appear as a
candidate in our 1996 (61 FR 7596; February 28, 1996), 1997 (62 FR
49398; September 19, 1997), or 1999 (64 FR 57534; October 25, 1999)
notices of review.
In our 2001 CNOR, the dunes sagebrush lizard was placed on our
candidate list with listing priority number (LPN) of 2 (66 FR 54807;
October 30, 2001). Service policy (48 FR 43098, September 21, 1983)
requires the assignment of an LPN to all candidate species that are
warranted for listing. This listing priority system was developed to
ensure that the Service has a rational system for allocating limited
resources in a way that ensures that the species in greatest need of
protection are the first to receive such protection. A lower LPN
reflects a need for greater protection than a higher LPN. The LPN is
based on the magnitude and immediacy of threats and the species'
taxonomic uniqueness with a value range from 1 to 12. A listing
priority number of 2 for the dunes sagebrush lizard means that the
magnitude and the immediacy of the threats to the species are high.
Since 2001, the species has remained on our candidate list with an LPN
of 2.
On June 6, 2002, the Service received a petition from the Center
for Biological Diversity to list the dunes sagebrush lizard. On June
21, 2004, the United States District Court for the District of Oregon
(Center for Biological Diversity v. Norton, Civ. No. 03-1111-AA) found
that our resubmitted petition findings for the southern Idaho ground
squirrel, dunes sagebrush lizard, and Tahoe yellow cress, which we
published as part of the CNOR on May 4, 2004 (69 FR 24876), were not
sufficient. The court indicated that we did not specify what listing
actions for higher priority species precluded publishing a proposed
rule for these three species, and that we did not adequately explain
the reasons why actions for the identified species were deemed higher
in priority, or why such actions resulted in the preclusion of listing
actions for the southern Idaho ground squirrel, sand dune lizard, or
Tahoe yellow cress. The court ordered that we publish updated findings
for these species within 180 days of the order.
On December 27, 2004, the Service published its 12-month finding,
which determined that listing was warranted, but precluded by higher
priorities (69 FR 77167). In that finding, the species remained on the
candidate list, with an LPN of 2. On December 14, 2010, we proposed the
dunes sagebrush lizard for listing as endangered under the Endangered
Species Act of 1973, as amended (Act) (75 FR 77801). Publication of the
proposed rule opened a 60-day comment period that closed on February
14, 2011. On December 5, 2011 (76 FR 75858), the Service extended our
determination on whether or not to list until June 14, 2012, due to
significant scientific disagreement.

Species Information

The dunes sagebrush lizard is a small, light-brown phrynosomatid
lizard (family Phrynosomatidae, genus Sceloporus), with a maximum
snout-to-vent length of 70 millimeters (mm) (2.8 inches (in)) for
females and 65 mm (2.6 in) for males (Degenhardt et al. 1996, p.

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160). The dunes sagebrush lizard's nearest relative is the sagebrush
lizard (Sceloporus graciosus), with the closest population occurring in
northwestern New Mexico. The dunes sagebrush lizard and sagebrush
lizard were isolated from each other at least 15,000 years ago during
the late Pleistocene era, when suitable habitat for each species became
separated by large areas of warm, dry unsuitable land (Jones and Lovich
2009, p. 200). Sabath (1960, p. 22) first described the occurrence of
light-colored sagebrush lizards in southeastern New Mexico and western
Texas. Kirkland L. Jones collected the type specimen for Sceloporus
graciosus arenicolus on April 27, 1968, in eastern Chaves County, New
Mexico (Degenhardt et al. 1996, p. 159). Degenhardt and Jones (1972, p.
213) described the dunes sagebrush lizard (Sceloporus graciosus
arenicolus) as a subspecies of the sagebrush lizard. The dunes
sagebrush lizard was elevated to a species in 1992 (Smith et al. 1992,
pp. 42-43). Scientific publications, field guides, and professional
scientific organizations all consider the dunes sagebrush lizard to be
a valid species, and we concur. Much of the previous literature
concerning Sceloporus arenicolus refers to it by the common name of
sand dune lizard (e.g., Degenhardt et al. 1996, p. 159); however, the
currently accepted common name is dunes sagebrush lizard (Crother et
al. 2008, p. 39).
Habitat and Ecology
The dunes sagebrush lizard is only found in Quercus havardii
(shinnery oak) dune habitat, located in southeastern New Mexico and
West Texas. The shinnery oak community is not spreading, and its
boundaries have not changed since early surveys, suggesting that new
habitat is not being created (Peterson 1992, p. 2). The dune habitat in
southeastern New Mexico and western Texas, where the dunes sagebrush
lizard is found, lies within a small portion of the overall shinnery
oak community. During the late Pleistocene era, wind erosion of the
Blackwater Draw formation along with shinnery oak encroachment formed
this unique dune system. The prevailing winds blow from the southwest
to the northeast, creating sand accumulation along the western edge of
the Llano Estacado (a large mesa or tableland) (Muhs and Holliday 2001,
p. 82). This process creates parabolic dunes (crescent-shaped dunes
that are concave upwind and form in areas where there is some
vegetation and a good supply of sand). In this case, the dune habitat
is dependent upon the existence of shinnery oak in areas with
appropriate permeable, sandy soils. The landscape created by the
shinnery oak dune community is a spatially dynamic system that is
altered by natural processes like wind and rain. Over time, these
natural processes erode and flatten sand dunes, and new dunes form in
the flats (Muhs and Holliday 2001, p. 75). Shinnery oak dune complexes
can transition into shinnery oak flats, along with a mosaic of habitat
types within or near the range of dunes sagebrush lizard. Landforms
separating habitat may include mesquite hummocks, grasslands, and
tabosa flats that are lacking shinnery oak and are dominated by Hilaria
mutica (tabosa grass) and scattered Prosopis glandulosa (honey
mesquite).
Shinnery oak plays a very important role in stabilizing the dunes
(Muhs and Holliday 2001, p. 75). Each shinnery oak tree occurs
primarily under ground, with only one-tenth of the plant standing 0.6
to 0.8 meters (m) (2 to 3 feet (ft)) above ground level. Shinnery oak
trees are clonal, meaning that each plant in a clone is descended
asexually from a single ancestor. One clone can cover up to 81 hectares
(ha) (205 acres (ac)) and can live more than 13,000 years, although
individual stems on the surface may not be that old (Peterson and Boyd
1998, p. 5). These drought-tolerant trees, with large root and stem
masses and an extensive underground system of horizontal stems that
extends 4.6 to 6.1 m (15 to 20 ft) below the surface, support the
dynamic dune system (Peterson and Boyd 1998, p. 5). The shinnery oak
dune systems of western Texas and eastern New Mexico are being
stabilized to different degrees by the shinnery oak cover. In some
areas where land practices and drought have caused vegetation removal
and shifting sands the dunes are not as stable (Muhs and Holliday 1995,
p. 198).
The connection between dunes sagebrush lizards and the shinnery oak
dune system is very specific; the range of the species is closely
linked to the distribution of shinnery oak dunes (Fitzgerald et al.
1997, p. 4), and dunes sagebrush lizards are rarely found at sites
lacking shinnery oak dune habitat (Fitzgerald et al. 1997, p. 2),
though they have occasionally been found in the shinnery oak flats
adjacent to dunes. The presence of dunes sagebrush lizards is also
directly linked to the quality and quantity of available shinnery oak
dune habitat (Fitzgerald et al. 1997, p. 8; Smolensky and Fitzgerald
2011, p. 324). Shinnery oak provides structure to the dune system,
provides critical shelter for the dunes sagebrush lizard's
thermoregulation (regulation of body temperature), and habitat for the
dunes sagebrush lizard's insect prey base, which includes ants (Order
Hymenoptera, Family Formicidae); small beetles (Order Coleoptera),
including lady bird beetles (Family Coccinellidae) and their larvae;
crickets (Order Orthoptera); grasshoppers (Order Orthoptera); and
spiders (Order Araneae) (Degenhardt et al. 1996, p. 160).
Within the shinnery oak dune system, dunes sagebrush lizards are
found in deep, wind-hollowed depressions called blowouts. These large,
steep blowouts provide habitat for thermoregulation, foraging, and
predator avoidance, where dunes sagebrush lizards escape under leaf
litter or loose sand during the hot part of the day and at night
(Painter et al. 2007, p. 3). Sand grain size within these blowouts may
be a limiting factor in the distribution and occurrence of the dunes
sagebrush lizard within the shinnery oak dunes. Preliminary laboratory
and field experiments designed to determine sand grain preference
demonstrated that dunes sagebrush lizards select sites with a
predominance of medium-sized sand grains and do not use finer sands
(Fitzgerald et al. 1997, p. 6). Finer sand grain sizes are thought to
limit the dunes sagebrush lizard's ability to effectively breathe when
they bury themselves to avoid predators or to thermoregulate. Dunes
sagebrush lizards may instead prefer sand that is suitable for burying
but not too fine to prevent respiration (Fitzgerald et al. 1997, p.
23). Sand grain size is also important in the establishment of dune
blowouts and can influence the dune structure (Fitzgerald et al. 1997,
p. 6).
Besides the shinnery oak dunes, dunes sagebrush lizards may
sometimes be found in shinnery oak flats that are adjacent to occupied
dunes. These shinnery oak flats are used by females looking for nesting
sites and for dispersal of recent hatchlings (Hill and Fitzgerald 2007,
p. 5). Females often utilize more than one dune during the nesting
season and have home range sizes of about 436 square meters (m\2\)
(4,693 square feet (ft\2\)). The largest recorded home range is 2,799.7
m\2\ (9,185.4 ft\2\), which includes the movement of a tracked female
from her primary home range to her nesting site (Hill and Fitzgerald
2007, p. 5). Dunes sagebrush lizards are active between March and
October, and are dormant underground during the colder winter months.
Mating has been observed in April and May (Sena 1985, p. 17). Females
build nest chambers and lay eggs in the moist soil below the surface.
Nests have been observed on west-

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facing, open sand slopes with little to no vegetation, approximately 18
centimeters (cm) (7.1 in) below the sand surface (Hill and Fitzgerald
2007, p. 5). Females produce one to two clutches per year, with three
to five eggs per clutch. Hatchlings appear between July and September
(Hill and Fitzgerald 2007, p. 2; Sena 1985, p. 6).
New Mexico
The distribution of the dunes sagebrush lizard in New Mexico was
not formally described until 1997, using the results of 169
standardized surveys conducted at 157 sites. Of the 157 sites surveyed,
72 sites were determined to be occupied by dunes sagebrush lizards
(Fitzgerald 1997, p. 13). As a result of these surveys, a polygon was
drawn around all occupied habitat in New Mexico. The dunes sagebrush
lizard is limited to a narrow, isolated band of shinnery oak dunes
between elevations of 780 and 1,400 m (2,600 and 4,600 ft) in
southeastern New Mexico. Additional sites have since been located in
shinnery oak dunes within or just outside of the described
distribution, although no populations have been found outside of the
shinnery oak dune habitat. In 2010, the range was refined to
incorporate new dunes sagebrush lizard occurrences, along with soil and
vegetation data. The newly described range is delineated by the outer
edges of the habitat; however, not all areas within the polygon are
considered habitat. For instance, areas covered by mesquite hummocks
are not considered dunes sagebrush lizard habitat, though they are
located within the polygon.
Since the dunes sagebrush lizard was not described until 1973, it
was not considered a full species until 1992, and its range was not
described until 1997, there is limited site-specific data available for
this species. We do have historical records of occurrence, and limited
surveys by the New Mexico Department of Game and Fish (NMDGF), the
Bureau of Land Management (BLM), and various universities. The first
concerted effort to survey for the dunes sagebrush lizard in New Mexico
took place in 1997 when the species' distribution was first defined
(Fitzgerald et al. 1997, p. 23). After 1997, there were no consistent
surveys, and all of the sites surveyed in 1997 were not revisited until
2008 to 2011. During the 2008 to 2010 surveys, dunes sagebrush lizards
were found at 63 of the sites that were defined in 1997, and were not
detected at 9 sites (Painter 2010, p. 1). The BLM has also surveyed BLM
land for dunes sagebrush lizards throughout the species range in New
Mexico. Surveys were conducted at 45 sites within the Roswell Field
Office, with 6 of the sites having dunes sagebrush lizards (BLM 2011,
p. 5). Twenty dunes sagebrush lizards were also captured during
surveys, but it is unclear if these captures occurred within the
pitfall arrays, or at separate sites. The Carlsbad Field Office had 91
pitfall arrays, with 24 of those arrays having dunes sagebrush lizards
(BLM 2011, p. 7).
Surveys for the dunes sagebrush lizard have not been consistently
done. Dunes sagebrush lizard populations naturally fluctuate and can be
affected by extreme weather events such as drought; therefore, single
site visits may not accurately determine if a site is not occupied.
Based on the limited survey results we have in our files, we cannot
determine long-term trends of occupancy for this species. The Service,
NMDGF, BLM, and Texas Parks and Wildlife Department, along with various
universities, are working to develop consistent survey and monitoring
techniques. Future surveys should incorporate detection probabilities
and utilize standard survey techniques for the species, in order to
more accurately compare results over time.
The known geographic range of the dunes sagebrush lizard in New
Mexico extends from the San Juan Mesa in northeastern Chaves County,
Roosevelt County, through eastern Eddy and southern Lea Counties
(Fitzgerald et al. 1997, p. 23). The Mescalero Escarpment is the west
side of the Llano Estacado south from San Juan Mesa, and is informally
referred to as the Caprock. In New Mexico there are three genetically
and geographically distinct populations of dunes sagebrush lizards: the
northern population (near Kenna, New Mexico), the central population
(at the Caprock Wildlife Area, north of U.S. Highway 380), and the
southern population (near Loco Hills and Hobbs, New Mexico). These
populations are separated from each other by geologic and ecologic
landscape barriers, such as the caliche caprock of the Llano Estacado
plateau, mesquite hummock landscapes, highways, roads, and oil and gas
pads, that form areas of unsuitable vegetation, and lack dune structure
(Chan et al. 2008, p. 13). These barriers have isolated the
populations, and they have genetically diverged over time. The
northernmost population is evolutionarily considered to be the youngest
population (Chan et al. 2008, p. 13). The southern population is
considered to be the oldest population of dunes sagebrush lizard and is
genetically isolated from the central population due to the presence of
the uninhabitable caliche caprock of the Llano Estacado plateau. Due to
the presence of the caprock, where dunes sagebrush lizards do not
occur, suitable shinnery oak dune habitat is limited to a narrow 8-
kilometer (km) (4.9-mile (mi)) patch between the southern and central
populations. Data from Chan et al. (2008, p. 10) suggest that
conservation of large areas that contain a network of dune complexes is
needed to maintain historical levels of connectivity, and the unique
genetic qualities of the three dunes sagebrush lizard populations in
New Mexico.
Texas
In Texas, the species was historically found in Andrews, Crane,
Gaines, Ward, and Winkler Counties (Fitzgerald et al. 2011, p. 2).
During 2006 and 2007, surveys were conducted to determine the
distribution of the dunes sagebrush lizard in the State. Surveys were
conducted at 27 sites (19 of these sites were historical localities)
that contained potential dunes sagebrush lizard habitat in Andrews,
Crane, Cochran, Edwards, Ward, and Winkler Counties. Dunes sagebrush
lizards were found at only 3 of the 27 sites surveyed (Laurencio et al.
2007, p. 7). Two of the sites were in large patches of shinnery oak
dunes that stretch through Ward, Winkler, and Andrews Counties.
Shinnery oak dune habitat exists in north and western Crane County, but
dunes sagebrush lizards were not found. One dunes sagebrush lizard was
found at a site in Gaines County located within the easternmost
contiguous habitat that stretches from the southernmost population in
New Mexico (Laurencio et al. 2007, p. 11).
In 2011, a comprehensive effort was undertaken to determine the
dunes sagebrush lizard's habitat and range in Texas. The shinnery oak
dune habitat was delineated and 50 surveys were conducted to define the
dunes sagebrush lizard's range in Texas. The mapped range in Texas
includes only shinnery oak dune habitat, which represents both occupied
and suitable habitat for the dunes sagebrush lizard (Fitzgerald et al.
2011, p. 10).
Of the 50 sites surveyed, 28 sites were occupied by dunes sagebrush
lizards. Dunes sagebrush lizards were found at all 19 sites surveyed in
Andrews County, and it is estimated that there are approximately 12,650
ha (31,260 ac) of suitable habitat in this county (Fitzgerald et al.
2011, p. 13). Even though there is a historical dunes sagebrush lizard
location in Crane County, no lizards were detected in 2011 (Fitzgerald
et al. 2011, p. 10). In Gaines County, the dunes sagebrush lizard is
only known from one site that

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is approximately 114 ha (281 ac) in the southwestern corner of the
county. Dunes sagebrush lizards were documented at this site in 2007,
so surveys were not conducted in 2011 (Fitzgerald et al. 2011, p. 9).
In Ward County, it is estimated that there are 6,960 ha (17,198 ac) of
dunes sagebrush lizard habitat. Five surveys were conducted in Ward
County, outside of Monahans Sandshills State Park, with dunes sagebrush
lizards detected at only one site (Fitzgerald et al. 2011, p. 12).
Historically, dunes sagebrush lizards were only known to occur in the
far northeastern corner of this county, in and near Monahans Sandhills
State Park. Surveys in 2007 (Laurencio et al. 2007, p. 11) found no
dunes sagebrush lizard in the 1,554-ha (3,840-ac) park. In 2010, the
park was again surveyed, and dunes sagebrush lizards were present
(Fitzgerald 2010, p. 1). It is evident that the dunes sagebrush lizard
is still at the park, but the negative survey data from 2007 suggests
they may be present in small numbers, and that further monitoring
should be done at the park and other long-term monitoring sites.
Finally, it is estimated that there are 39,789 ha (98,320 ac) of
habitat in Winkler County. Out of the ten sites surveyed, eight had
dunes sagebrush lizards (Fitzgerald et al. 2011, p. 12). Dunes
sagebrush lizard populations in Texas are all on private land,
including the population at Monahans Sandhills State Park, which is
privately owned and leased to the State of Texas.

Summary of Comments and Recommendations

In the proposed rule published on December 14, 2010 (75 FR 77801),
we requested that all interested parties submit written comments on the
proposal by February 14, 2011. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Carlsbad Daily Argus, The Portales News Tribune, Hobbs News Sun,
Midland Reporter, and Lubbock Online. We received requests for public
hearings in both Texas and New Mexico. We held a public hearing in
Midland, Texas, on April 27, 2011, and a second public hearing in
Roswell, New Mexico, on April 28, 2011. The comment period was reopened
to accept comments received during the public hearings, and was closed
on May 9, 2011 (76 FR 19304; April 7, 2011). On December 5, 2011 (76 FR
75858), the Service issued a 6-month extension on the final
determination to list the lizard and opened the comment period again
until January 19, 2012. The comment period was then reopened on
February 24, 2012 (77 FR 11061), in order for the Service to consider
the Texas Conservation Plan. The final comment period closed on March
12, 2012.
During the comment period for the proposed rule, we received over
800 comment letters directly addressing the proposed listing of the
dunes sagebrush lizard with endangered status. During the April 27 and
April 28, 2011, public hearings, 147 individuals or organizations made
comments on the proposed rule. The majority of the comments, written
and stated at the public hearing, opposed the proposal based on
potential economic impacts. Other comments addressed the science
provided in the proposal, specifically the lack of information
regarding the species in Texas. We received approximately 30 comments
that supported the proposal. All substantive information provided
during the comment periods has either been incorporated directly into
this final determination or addressed below.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from seven knowledgeable
individuals with scientific expertise that included familiarity with
dunes sagebrush lizard and its habitat, biological needs, and threats.
We received responses from five of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the listing of the
dunes sagebrush lizard. Peer reviewer comments are addressed in the
following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: Organisms with small geographic ranges are more
susceptible to extinction than organisms with larger geographic ranges.
Also, organisms with specific ecological requirements are more
susceptible to extinction than organisms with more general ecological
requirements. Thus, even without consideration of anthropogenic
effects, the dunes sagebrush lizard warrants special consideration to
ensure its persistence as a species. Unfortunately, human activity
throughout the geographic range of the lizard has critically
exacerbated those two components of its ecology to the point that
extinction is a very real threat.
Our Response: We assessed the status of the lizard, along with the
past, present, and future threats to the species. We did consider the
risk of extinction in our five-factor analysis and determined that
historical levels of development in dunes sagebrush lizard habitat will
not continue into the future. Though human activities have caused the
loss of habitat within the species' range, we have determined that this
species has adequate habitat available to persist into the future,
given that conservation efforts direct future development outside of
shinnery oak dune habitat. While having a small geographic range and
specialized habitat may make a species more susceptible to threats, we
have determined the dunes sagebrush lizard does not meet the definition
of an endangered or threatened species because the previous threats
have been alleviated.
(2) Comment: One commenter thought the proposed rule underestimated
the potential harm from solar energy development.
Our Response: We acknowledge that solar energy development may be a
potential threat in the future; however, we are not aware of any
permitted or planned projects within the dunes sagebrush lizard's
habitat.
(3) Comment: Given that the effects of disease on the lizard are
unknown, it would be more accurate for the Service to state that it
cannot make a conclusion about the effects of disease, due to the lack
of knowledge.
Our Response: Because of known disease and parasites within the
genus Sceloporus, it is reasonable to assume that the dunes sagebrush
lizard is also affected by disease and parasites. It is correct that we
cannot make a conclusion regarding the impacts of disease or parasites,
and that the effects are unknown. Based on this peer review suggestion,
the Factor C section has been updated to reflect our understanding of
disease and parasites on the dunes sagebrush lizard.
(4) Comment: The section on competition could include other
competitors in addition to side-blotched lizards.
Our Response: Research has not been conducted to determine the
impacts of competition with other species on the dunes sagebrush
lizard. The presence of other species near and around dunes sagebrush
lizard habitat, within fragmented and unfragmented areas, has
anecdotally been considered competition. It is possible that other
species come into areas that are no longer inhabited by dunes sagebrush
lizards, or it may be that increased competition causes a reduction in
dunes sagebrush lizards in an area. Competition is mentioned in Sias
and

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Snell's 1998 research as a potential stressor for the dunes sagebrush
lizard, although no formal studies have been done. Based on this, and
other peer review comments, we have updated our analysis to clarify our
current understanding of competition with other lizard species. Please
see Factor E, below, for further discussion.
(5) Comment: Another common cause of anthropogenic (human-
influenced) extinctions relates to the presence of exotic or alien
species. The proposed rule does not mention predation by or competition
with alien species.
Our Response: We have updated our analysis to include alien
species, specifically feral hogs, which have now been found within the
dunes sagebrush lizard's habitat. We recognize there is potential for
other alien species, though we do not have substantial information
regarding these species to consider them threats to the dunes sagebrush
lizard. Please see Factor C, below, for further discussion.
(6) Comment: The proposed rule presents a scientifically supported
conclusion that the dunes sagebrush lizard is in danger of extinction,
that a number of anthropogenic actions exacerbate the situation, and
that existing regulatory mechanisms and actions have failed to reverse
a pattern of declining populations. Listing this species as endangered
is a necessary step that can improve the chances that this species will
persist.
Our Response: At the time of the proposed rule, the New Mexico
Conservation Agreements had little participation, and the Texas
Conservation Plan had not yet been developed. After the proposal
published, there was a significant increase in the number of oil and
gas companies and ranchers who enrolled in the New Mexico Conservation
Agreements, and the Texas Conservation Plan was signed. We have also
received clarification from BLM regarding the implementation of their
Special Status Species Resource Management Plan Amendment (RMPA). The
conservation agreements, along with the RMPA, provide conservation
measures that direct development outside of dune habitat. As a result,
we have determined that the dunes sagebrush lizard no longer meets the
definition of a threatened or endangered species.
(7) Comment: When talking about the range of the lizard, the
Service excluded Crane County, Texas.
Our Response: We have updated the information in our final
determination to include the 2011 surveys that were conducted in Texas,
and now include Crane County, Texas, in the range of the species (see
Species Information, above).
(8) Comment: One peer reviewer thought the sand grain work was
poorly done, and should not form the basis for any conservation
measures for the lizard.
Our Response: More information should be collected regarding sand
grain size, as it is relevant to the dunes sagebrush lizard's habitat
preferences; however, the work that was completed provides basic
information regarding the presence of dunes sagebrush lizards. In this
document, the discussion of sand grain size is limited to stating that
it may be a limiting factor for this species.
(9) Comment: One peer reviewer, along with several comments from
BLM, the Natural Resources Conservation Service (NRCS), the States, and
the public, expressed concern with the survey methodologies and how we
used the information in the proposed rule. They noted that the survey
does not allow for the evaluation of trends, but only defines the
status quo or decline.
Our Response: We recognize that the survey information for this
species is limited and not conclusive in regard to estimating abundance
or population numbers. The Service is not relying on population
numbers; rather we have used the best available information about
habitat loss now and into the future. In 2011, we received a report
detailing comprehensive surveys that were completed in Texas. This
report provided valuable information that delineated the shinnery oak
dune habitat, and determined occupancy of this habitat in Texas. We
also received a report documenting BLM's survey efforts in 2011, which
has now been incorporated into the discussion of Species Information,
above. Based on public, agency, and peer review comments, we have
updated the information in Species Information regarding surveys.
(10) Comment: In the Texas section it is stated that one dunes
sagebrush lizard was found in Gaines County. The peer reviewer found a
large population, and states that Texas surveys have found more
populations than described in the proposed rule.
Our Response: Please see comment 9. We have updated the information
in Species Information, above, in our final determination with this
information and results from the 2011 survey effort in Texas. All
information for surveys in Gaines County is included in the Species
Information section.
(11) Comment: One peer reviewer thought we placed too much emphasis
on the prey base of the lizard. To the reviewer's knowledge, the prey
base is not a factor in the decline of any Sceloporus species, and
until a proper diet study is conducted, we must assume that dunes
sagebrush lizards are like their close relatives in diet and will eat
most any insect that is small enough that they come across.
Our Response: Shinnery oak provides the structure in which the
dunes sagebrush lizard and its insect prey base feed, breed, and find
shelter. In Summary of Factors Affecting the Species, below, we discuss
prey base in relation to the loss of habitat because the prey base can
also be threatened by the removal of shinnery oak. We believe it is
relevant to discuss the prey base in the context of available
vegetative cover for both the dunes sagebrush lizard and its prey.
(12) Comment: A commenter suggested that, instead of the Coachella
Valley fringe-toed lizard (Uma inornata) comparison, an example of a
Sceloporus species would be more appropriate. The commenter suggested
using research on Florida scrub lizard (Sceloporus woodi), which
specializes on a sand ecosystem in Florida, would be more appropriate.
Our Response: The Service has reviewed literature on the Florida
scrub lizard and has incorporated a study on this species into our
discussion of The Present or Threatened Destruction, Modification, or
Curtailment of its Habitat or Range, below.
(13) Comment: Leavitt's report on fragmentation should be included
in the threats analysis.
Our Response: This new report (Leavitt et al. 2011) provides
additional information regarding the long-term, landscape-level effects
of oil and gas development on dunes sagebrush lizards, and confirms the
results provided in the Sias and Snell (1998) report. We have now
summarized this report in the discussion on Oil and Gas Development,
below.
(14) Comment: Climate change could have a significant impact on the
dunes sagebrush lizard. The predictions made by B. Sinervo on side-
blotched lizards are dire, and dunes sagebrush lizards have an even
lower tolerance for heat than side-blotched lizards.
Our Response: We agree that climate change may have an impact on
dunes sagebrush lizard habitat. The New Mexico Conservation Agreements,
Texas Conservation Plan, and RMPA all direct development outside of
habitat, which will leave large patches of intact habitat. Large,
intact patches of habitat are less susceptible to climate change and
drought than smaller, more fragmented patches. However, we recognized
in the proposal that the dunes sagebrush lizard

[[Page 36877]]

may be vulnerable to changes in climate. We also note that this does
not imply that the species cannot survive natural events such as
drought since the dunes sagebrush lizard evolved in an environment
subject to periodic atypical weather events. Please see the discussion
on Climate Change and Drought, below, for additional discussion.
(15) Comment: One peer reviewer, along with multiple public
commenters, believed that the conclusion that pollution is a threat to
the dunes sagebrush lizard is not well supported.
Our Response: We agree that there is no research on the direct
effects of pollution on the dunes sagebrush lizard, and that the
research available is based on other lizard species. We also note that
the scope of this impact is highly localized, and will be minimized by
the New Mexico Conservation Agreements and Texas Conservation Plan.
Please see the section on Exposure to Pollutants, below, for further
discussion.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments received from the State regarding the proposal to list the
dunes sagebrush lizard as endangered are addressed below.
(16) Comment: County and State governments in New Mexico and Texas,
along with hundreds of public commenters, submitted comments regarding
the social, cultural, private-property, and economic impacts of listing
the dunes sagebrush lizard. Some commenters were additionally concerned
because oil and gas leases on State lands in both New Mexico and Texas
provide funding for public schools.
Our Response: We acknowledge the concerns expressed by commenters,
and the possible impacts that might result from listing the dunes
sagebrush lizard. The Act requires that we determine whether any
species is an endangered or threatened species based solely on the
threats to the species as determined by a review of the best available
scientific information. The Act lists five factors for evaluation: (A)
The present or threatened destruction, modification, or curtailment of
the range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; and (E) other natural or
manmade factors affecting its continued existence. Considerations of a
social, cultural, political, or economic nature are not part of the
evaluation for listing decisions. Since comments of that nature are
outside the scope of this decision we have not specifically addressed
them in this rule.
(17) Comment: County and State governments in New Mexico and Texas
submitted comments supporting the use of conservation agreements to
conserve the dunes sagebrush lizard instead of listing it under the
Act.
Our Response: The Service recognizes the importance of strong
partnerships to conservation of species. However, if a species meets
the definition of a threatened or endangered species under the Act, we
have no discretion not to list it in deference to other ongoing
conservation actions. On the other hand, if ongoing and future
conservation efforts reduce or remove threats to the species to the
point that the species no longer meets the definition of endangered or
threatened under the Act, then listing is no longer required. We have
determined that the dunes sagebrush lizard does not meet the definition
of a threatened or endangered species (see Ongoing and Future
Conservation Efforts and Summary of Factors Affecting the Species,
below), due in part to the New Mexico Conservation Agreements and Texas
Conservation Plan.
(18) Comment: County and State governments in New Mexico and Texas,
along with public commenters, submitted comments questioning the
validity of the science behind the proposal.
Our Response: In our proposed rule and final determination, we used
the best available scientific information to support our analyses.
Additionally, we delayed our final determination by an additional 6
months, as allowed by the Act when there is substantial disagreement
regarding the sufficiency or accuracy of available data, in order to
solicit information to clarify these issues. We acknowledge that the
science regarding the species may be incomplete in some areas, but we
must rely upon the best available scientific information to make a
decision nonetheless.
(19) Comment: County and State governments in New Mexico and Texas,
along with public commenters, stated that documents used in the
proposed rule did not meet Information Quality Act requirements.
Our Response: We used the best available scientific information and
met the standards of the Information Quality Act. The Service has
established guidelines to implement the Information Quality Act. These
guidelines establish Service policy and procedures for reviewing,
substantiating, and correcting the quality of information it
disseminates to the public. Persons affected by that information may
seek and obtain, where appropriate, correction of information that they
believe may be in error or otherwise not in compliance with Section 515
of the Treasury and General Government Appropriations Act of 2001 (Pub.
L. 106-554, HR 5658). Section 515 is also known as the Information
Quality Act (IQA). Our guidelines are posted at http://www.fws.gov/informationquality/topics/IQAguidelines-final82307.pdf.
(20) Comment: County and State governments in New Mexico and Texas
stated concerns that the Service did not coordinate with State and
local governments, and did not comply with the National Environmental
Policy Act (NEPA). Several commenters noted that, in order to be in
compliance with various case law, policies, or regulations, it is the
continuing responsibility of the Federal Government to use all
practicable means, consistent with other essential considerations of
national policy, to improve and coordinate Federal plans, functions,
programs, and resources. Affected counties within New Mexico and Texas
requested agency coordination.
Our Response: We have determined that NEPA documents need not be
prepared in connection with making a decision whether to list a species
as endangered or threatened under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). The Service has coordinated with the
State conservation agencies to collect any information regarding the
dunes sagebrush lizard. The State of New Mexico provided many of the
reports used in the proposed rule. Texas Parks and Wildlife Department
provided lizard survey information from 2007 that was included in the
proposed rule. State and local governments have been provided with
adequate opportunity to comment on the proposed rule. Multiple comment
periods allowed for adequate opportunity for public comment. In
addition, question and answer sessions and public hearings (with
notices in the Federal Register and local newspapers) were held on
April 27 and 28, 2011, providing another opportunity for comment
submission. In addition to the comment period, we visited with
commenters on several occasions to ensure that their concerns were
heard and considered. In 2011, the Service met with representatives of
Chaves and

[[Page 36878]]

Eddy Counties, and various state and local governments in Texas.
Federal Agency Comments
(21) Comment: The BLM and NRCS submitted many comments with factual
corrections, or new information regarding those agencies' actions with
respect to the dunes sagebrush lizard.
Our Response: We have incorporated these comments into our final
determination, as appropriate. We have also included our current
understanding of BLM's implementation of its Special Status Species
RMPA, and of the NRCS's Technical Note 5,3 which guides herbicide
treatments within dunes sagebrush lizard habitat.
(22) Comment: The BLM does not chemically treat shinnery oak. The
proposed rule states that Triclopyr and Clopyralid are used to treat
mesquite, but can kill shinnery oak, depending on concentrations. The
BLM applies herbicides according to labels. Use of these chemicals can
cause seasonal browning of shinnery oak, but the plants so affected
leaf out the following spring and produce acorns.
Our Response: We are aware of one incident where the use of these
chemicals damaged shinnery oak (although not permanently) within dunes
sagebrush habitat. The RMPA states that the BLM will not treat shinnery
oak dunes with herbicides. Three historic dunes sagebrush lizard sites
were treated with Triclopyr and Clopyralid during the summer of 2010 as
part of a mesquite treatment. The timing of this treatment coincided
with the dunes sagebrush lizard's breeding season, and browned the oak
for the duration of the summer. In 2011, researchers revisited the
sites; however, due to drought conditions, none of the shinnery oak had
leafed out. It is thought that the oak was not permanently affected by
the treatment, and the BLM is monitoring the sites. The Service has
since worked with the BLM to ensure that no dunes sagebrush lizard
sites will be treated, and there are now protocols in place to ensure
dunes sagebrush lizard habitat is buffered from adjacent mesquite
treatments.
(23) Comment: BLM, NRCS, and public commenters stated that the
habitat description and rate of habitat loss are not accurate,
complete, or correctly defined.
Our Response: Based upon public comments and information provided
by the BLM, NRCS, and Texas A&M University, we have updated our
analysis to include our current understanding of the habitat in both
New Mexico and Texas. We have specifically corrected an error in the
proposed rule that stated ``In 1982, it was estimated that there was
one million acres (404,686 ha) of shinnery oak dunes in New Mexico
(McDaniel et al. 1982, p. 12). Currently, the amount of shinnery oak
dune habitat is estimated to be 600,000 acres (248,811 ha), a 40
percent loss since 1982.'' This should have stated ``In 1982, it was
estimated that there was one million acres (404,686 ha) of shinnery oak
in New Mexico (McDaniel et al. 1982, p. 12). Currently, the amount of
shinnery oak is estimated to be 600,000 acres (248,811 ha), a 40
percent loss since 1982.'' The reference was describing all shinnery
oak and was not specific to shinnery oak dune habitat. Please see
Species Information, above, and Summary of Factors Affecting the
Species, below.
(24) Comment: BLM commented that off-highway vehicle (OHV) use
drops significantly during the months of June through September, due to
hot weather conditions.
Our Response: We had not considered this in our proposal, but have
incorporated this discussion in the ``Off-Highway Vehicle (OHV) Use''
section regarding the lizard's potential exposure to OHV activities.
(25) Comment: BLM biologists reported no conflicts with the
occupied dunes sagebrush lizard habitat at the Square Lakes OHV Area,
and Mescalero Sands appears not to be habitat for the dunes sagebrush
lizard. BLM remains committed to ensure that there are no conflicts
with dunes sagebrush lizards, and there should be no BLM-related OHV
impacts.
Our Response: We disagree that there are no impacts to dunes
sagebrush lizards in the occupied OHV areas; however, these impacts
(e.g., habitat degradation, collision mortality) are localized and do
not threaten entire populations or the species as a whole (see Off-
Highway Vehicle (OHV) Use, below). Mescalero Sands OHV Area was
historically occupied, and should be resurveyed to determine if dunes
sagebrush lizards are still present, though BLM's 2011 surveys did not
find dunes sagebrush lizards at the site.
(26) Comment: Although 111,519 ha (275,570 ac) have been leased for
oil and gas development within delineated dunes sagebrush lizard
habitat, it is not guaranteed that this area will be developed.
Our Response: We agree. We understand that not all leased areas
will actually be developed for oil or gas. Additionally, many leased
areas are now enrolled under the New Mexico Conservation Agreements or
Texas Conservation Plan, and will only be developed with the
conservation measures in these agreements. Please see Ongoing and
Future Conservation Efforts section, below.
(27) Comment: The Service does not consider the amount of habitat
that is covered by conservation agreements. These agreements provide
protection, reclamation, and restoration. The conservation agreements
should go through an analysis under the Policy for Evaluation of
Conservation Efforts When Making Listing Decisions (PECE) (68 FR
15100).
Our Response: When the proposed rule was published in December
2010, there were only four companies enrolled in the New Mexico
Conservation Agreements, covering 20,303 ha (50,170 acres) of dunes
sagebrush lizard habitat. As of May 2012, enrollment has risen to 29
companies, covering 110,893 ha (274,024 acres) of dunes sagebrush
lizard habitat. Ranchers have enrolled 151,083 ha (373,335 acres) of
rangeland. When combined with the New Mexico State Land Office
enrollment and the application of the management restrictions on public
lands under the RMPA, 95 percent of dunes sagebrush lizard habitat in
New Mexico is included in areas protected by conservation efforts. On
February 17, 2012, the Texas Conservation Plan was signed, and as of
May 2012, 71 percent (56,105 ha (138,640 ac)) of the habitat in Texas
has been enrolled in this plan. The Service has now completed a PECE
analysis of the New Mexico Conservation Agreements and the Texas
Conservation Plan, and information from that analysis has been
incorporated into our final determination. Our PECE analysis is
available at http://www.regulations.gov. We are withdrawing our
proposal to list the species (see Summary of Factors Affecting the
Species, below), due in part to these efforts.
(28) Comment: Not all parts of the dunes sagebrush lizard's range
have incurred the same amount of development.
Our Response: The Service agrees that not all areas that contain
dunes sagebrush lizard habitat have equal development, and currently
there are areas where development is much greater than other areas.
Based on public comments, information received from the BLM, and our
habitat fragmentation analysis, we have updated our analysis of habitat
fragmentation in both New Mexico and Texas. Please see Summary of
Factors Affecting the Species, below.
(29) Comment: BLM data shows that 91.4 percent of the dunes
sagebrush lizard's habitat has less than or equal to 9 percent caliche
cover.

[[Page 36879]]

Our Response: The data provided by BLM did not include Texas. The
Service digitized all of the caliche roads in both New Mexico and
Texas, and found that in New Mexico, 45 percent of the habitat is
currently fragmented, and 48 percent of the habitat in Texas is
currently fragmented with caliche roads and pads. Please see the
discussion on Oil and Gas Development, below, for more discussion.
(30) Comment: BLM's RMPA is not merely guidance, and provides
protection and surface reclamation, places development out of dunes,
prohibits chemical treatments in occupied or suitable habitat, provides
dispersal corridors, reduces new drilling locations, decreases the size
of well pads, places more than one well per pad, reclaims inactive pads
and roads, reduces the number and length of roads, reduces the number
of powerlines and pipelines, requires habitat surveys prior to
development, limits seismic activity near dunes, places utility and
rights-of-ways in common corridors, and implements best management
practices for development and reclamation. The rule mischaracterizes
the extent to which operators may obtain exceptions, waivers, and
modifications.
Our Response: Based on comments and clarifications from BLM, we
revised our analysis to reflect our current understanding of BLM's
implementation of their RMPA. Please see The Inadequacy of Existing
Regulatory Mechanisms, below, for a complete discussion of BLM's RMPA.
Public Comments
(31) Comment: Not all of the papers were peer reviewed,
scientifically valid, or are specific to the dunes sagebrush lizard.
One commenter specified that the use of the Sena (1985) study is not
appropriate because the dissertation was never finalized.
Our Response: The report by Sena (1985) contains valuable life-
history information about the dunes sagebrush lizard, which is used in
various publications. In determining and evaluating threats to the
dunes sagebrush lizard, we used the best scientific and commercial data
available. This included articles published in peer-reviewed journals,
data collected by various agencies, universities, and the Service. It
is correct that some of our citations are not specific to these species
or the geographic area. Nevertheless, the citations offer evidence that
certain threats result in basic biological responses for similar
species, and we would expect the same threat to have a similar response
with the dunes sagebrush lizard.
(32) Comment: Caliche roads and pads disintegrate over time and
should not be considered a threat.
Our Response: While it is true that caliche roads and pads may
disintegrate over time, the calcium carbonate released from the caliche
into the soil will impede plant growth, and the roads and pads will
continue to affect the geologic processes that are necessary for dune
formation.
(33) Comment: Disturbance creates more bare ground and edge habitat
that would be beneficial to the dunes sagebrush lizard.
Our Response: The dunes sagebrush lizard lives in bare sand dune
blowouts within shinnery oak dunes. The disturbed areas (roads and
pads) are primarily caliche, which is a hard surface where the dunes
sagebrush lizard would be unable to bury. Also, the caliche does not
provide vegetative cover for the dunes sagebrush lizard to seek
shelter, food, or nesting habitat.
(34) Comment: The habitats in Texas and New Mexico are different.
Our Response: Though there may be differences in the habitats in
Texas and New Mexico, the dunes sagebrush lizard is found in the same
habitat features: Sand dune shinnery oak blowouts. The shinnery oak
sand dunes may be more or less stable in the different areas based on
the amount of shinnery oak vegetation present, which can vary with land
use practices and drought (Muhs and Holliday 2001, p. 75).
(35) Comment: The treatment of shinnery oak with tebuthiuron was
discontinued 18 years ago. There is no evidence that dunes sagebrush
lizard habitat has been treated since 1993. The Service provided an
inaccurate estimate of the amount of habitat treated with tebuthiuron.
Our Response: The Service has documented that, as recently as 2009,
shinnery oak dunes within the dunes sagebrush lizard's range in
Roosevelt County, New Mexico, were treated with tebuthiuron (Service
2009, p. 1). After the publication of the proposed rule NRCS finalized
a technical note that provided treatment buffers around shinnery oak
dunes in New Mexico. However, this measure does not apply to Texas. The
New Mexico Conservation Agreements and Texas Conservation Plan limit
tebuthiuron treatments to areas outside of shinnery oak dune habitat
for the dunes sagebrush lizard. Based upon public comments and
information received from NRCS, we have updated our analysis to include
our current understanding of tebuthiuron treatments in both New Mexico
and Texas. Please see ``Shinnery Oak Removal'' for more discussion.
(36) Comment: One commenter questioned whether dunes sagebrush
lizards return to tebuthiuron treatment areas, or if they are present
in treatment areas. The commenter also asked whether shinnery oak
returns to treated areas.
Our Response: The long-term monitoring site on the Caprock Wildlife
Area includes a grid that is located on the edge of an old tebuthiuron
treatment. The shinnery oak dunes and dunes sagebrush lizards are
present at this site. In areas where the dune structure is still
present and shinnery oak was not completely eradicated, dunes sagebrush
lizards are still present at historically treated sites. According to
recent data, these sites do not provide the necessary structure to have
a self-sustaining dunes sagebrush lizard population, and are only
sustained by nearby populations in good habitat (Ryburg and Fitzgerald
2011). It is estimated that shinnery oak will return in approximately
20 years (McDaniel 1980). Please see Shinnery Oak Removal, below, for
more discussion.
(37) Comment: There is no evidence that the habitat is being
threatened. The dunes sagebrush lizard is only found in a narrow
habitat range that is not going away.
Our Response: The dunes sagebrush lizard's habitat has been
fragmented and destroyed with the placement of caliche pads and roads,
which do not provide the necessary elements for the dunes sagebrush
lizard to feed, breed, and take shelter. Based on the enrollment in the
New Mexico Conservation Agreements and the Texas Conservation Plan, the
Service has determined that there are measures in place to direct
future development outside of shinnery oak dunes, and also remove some
existing infrastructure in both Texas and New Mexico. Please see the
discussion in Ongoing and Future Conservation Efforts, below.
(38) Comment: Texas was not given an opportunity to participate in
the candidate conservation agreement with assurances (CCAA) prior to
the proposed rule.
Our Response: The candidate conservation agreement (CCA) and CCAA
in New Mexico were developed with the BLM and the Center of Excellence
in Hazardous Materials Management (CEHMM; the applicants), and signed
in December 2008. At that time, the majority of known habitat was
thought to occur in New Mexico, although the species was known from a
few sites in Texas. The New Mexico Conservation Agreements were also

[[Page 36880]]

developed in response to threats to the lesser prairie chicken. It was
not until 2011, that the Texas Comptroller's Office and the oil and gas
industry in Texas began developing the Texas Conservation Plan, which
was signed on February 17, 2012.
(39) Comment: Several comments stated that the shinnery oak dune
system was not formed during the Pleistocene, not formed by geologic
processes, and that the government planted shinnery oak in the 1970s.
Our Response: The commenters did not provide any scientific
evidence to support these claims, nor does the Service have any
scientific evidence to support these claims.
(40) Comment: Many comments pertained to the dunes sagebrush lizard
survey information we discussed in the proposed rule, including
allegations of incorrect use of the data gathered from the surveys,
inconsistent methodology, and incomplete or absent survey information
for much of Texas.
Our Response: The Service agrees that the history of surveys for
this species is limited. The more recent surveys conducted to define
the species' range were thorough and have incorporated new locations as
they are found. In 2010, the habitat range was modified to include new
locations, including data from BLM. This final determination also
includes survey information from 2011 for both New Mexico and Texas.
All of this information has been incorporated into this final
determination.
(41) Comment: A hotter, drier climate would cause less dune
stability and be better for the dunes sagebrush lizard.
Our Response: The effects of a hotter, drier climate on shinnery
oak dune habitat are discussed in the Climate Change and Drought
section, below. In summary, we agree that a hotter, drier climate can
cause less dune stability in both the Monahan's Sands and Mescalero
dune fields. However, this may not be beneficial to the dunes sagebrush
lizard, because hotter temperatures could cause dunes sagebrush lizards
to spend more time regulating their body temperature, and not searching
for food and mates. A hotter, drier climate may also affect the
shinnery oak, and increase habitat loss.
(42) Comment: After 70 years, there are still dunes sagebrush
lizards in the oilfield. The commenter questioned whether any studies
have examined the density of dunes sagebrush lizards to the age of
oilfields. It seems logical that when the oil field comes in, the dunes
sagebrush lizards leave, but remaining dunes sagebrush lizards become
tolerant as activities decrease. The commenter questioned, given that
dunes sagebrush lizards are still found at 8 ha (20 ac) spacing,
whether they are threatened by oilfield development.
Our Response: Caliche pads and roads do not provide the basic
requirements for the dunes sagebrush lizard to feed, breed, and
shelter. They fragment the shinnery oak dune habitat, and increase
predation and direct mortality. There are decreased numbers of dunes
sagebrush lizards in developed areas, where habitat fragmentation
decreases the species abundance. Dunes sagebrush lizards can be present
in very low numbers, but this does not mean that they are thriving.
Though research regarding the effects of oil and gas development on the
dunes sagebrush lizard was not designed to specifically address this
question, we summarize the available findings in The Present or
Threatened Destruction, Modification, or Curtailment of its Habitat or
Range, below.
(43) Comment: A commenter inquired whether lizards are doing better
in areas where the BLM has control.
Our Response: As part of the RMPA, BLM is responsible for
establishing intervals and standards for evaluating and monitoring the
measures within the plan, and determining whether the mitigation
measures are satisfactory. Because the RMPA places oil and gas
development up to 200 m (656 ft) out of dunes, it is anticipated that
dunes sagebrush lizard habitat will be conserved.
(44) Comment: The BLM has closed drilling on 109,265 ha (270,000
acres) of habitat.
Our Response: Data provided by the BLM stated that 62,021 ha
(153,257 acres) within the dunes sagebrush lizard's range in New Mexico
will be closed to future leasing, and 53,657 ha (132,590 acres) are
unleased and will remain unleased. This information has been updated in
the Ongoing and Future Conservation Efforts discussion, below.
(45) Comment: The dunes sagebrush lizard is not geographically
isolated, and individuals travel and breed between various populations.
Our Response: The genetic information shows that dunes sagebrush
lizard populations are isolated, and there is little movement, if any,
between the major populations (Chan 2008). Please see Species
Information, above.
(46) Comment: The vast majority of pipelines are laid above ground.
Our Response: We were unable to find a data source to verify this
comment.
(47) Comment: Pipelines create dispersal corridors.
Our Response: Though dunes sagebrush lizards can be found in
shinnery oak dune habitat along pipelines, no research has determined
if these pipelines are actually used as corridors between habitat
patches. After pipelines are in place and vegetation returns, dunes
sagebrush lizards are found along pipelines. It is reasonable to
conclude that dunes sagebrush lizards could use a pipeline corridor
between two shinnery oak dune complexes, but we do not have any
documented examples of this occurring. There is potential for pipelines
to lead to areas that are unsuitable habitat as well.
(48) Comment: Trenches are rarely left open for over a half mile in
sandy soil because they tend to cave in.
Our Response: Open trenches, even a half mile long, can trap
reptiles (including dunes sagebrush lizards) and other vertebrates.
This threat can be minimized if trenches are closed quickly, or escape
ramps are placed in trenches to allow animals to climb out. These and
other measures are included in the BLM trench stipulation and the New
Mexico Conservation Agreements (see The Present or Threatened
Destruction, Modification, or Curtailment of Its Habitat or Range,
below, for additional discussion.)
(49) Comment: Generations of dunes sagebrush lizards learn to adapt
and thrive in altered environments.
Our Response: Although dunes sagebrush lizards persist in areas
where shinnery oak dunes are adjacent to moderate oil and gas
development, there have been no documented dunes sagebrush lizards
outside of shinnery oak dune habitat. It is unreasonable to believe
that they have adapted to conditions that do not provide areas to feed,
breed, and seek shelter. The species requires shinnery oak dunes for
shelter, food, and areas to lay eggs.
(50) Comment: Sceloporus arenicolus is not a valid species.
Our Response: The Service uses the best available information to
determine if a species is valid. There is no disagreement within the
scientific community as to the validity of the dunes sagebrush lizard
as a species. It is considered a valid species by the Society for the
Study of Amphibians and Reptiles, and the Center for North American
Herpetology. It was first described as a subspecies of the sagebrush
lizard (Sceloporus graciosus), but was determined to be a full species
in 1992 (Smith et al. 1992, pp. 42-43). Please see Species Information,
above, for a complete discussion of the species taxonomy.
(51) Comment: The Service received a study conducted in 2011 that
did not find hydrogen sulfide or tebuthiuron in the soil at the study
site, and determined that preliminary analysis

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does not show threats to the dunes sagebrush lizard.
Our Response: This was a preliminary study that was not conclusive
about the effects of hydrogen sulfide on the dunes sagebrush lizard. We
do not expect hydrogen sulfide to be a stressor on the dunes sagebrush
lizard throughout the species' range, and would only expect for the
species to be exposed in areas where regular hydrogen sulfide releases
occur (see Exposure to Pollutants section, below). Also, we do not have
information regarding the effects of tebuthiuron on individuals. The
information we do have indicates that the stressor, instead, is the
impact of removing shinnery oak dune habitat. Unless tebuthiuron has
recently been applied in an area, it is not expected to be found in the
soil.
(52) Comment: A commenter inquired as to why critical habitat was
not determinable, and thus not included in the proposed rule.
Our Response: In 2010, when we published our proposed rule, we had
limited information regarding dunes sagebrush lizard habitat throughout
the range, especially in Texas. Section 4(a)(3) of the Act requires the
designation of critical habitat concurrently with the species' listing
``to the maximum extent prudent and determinable.'' Our regulations at
50 CFR 424.12(a)(2) state that critical habitat is not determinable
when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
In our proposed rule, we stated that we were unable to determine
which areas meet the definition of critical habitat, because the
location and distribution of physical and biological features that may
be considered essential to the conservation of the species were not
sufficiently understood at that time. Therefore, although we determined
that the designation of critical habitat was prudent for the dunes
sagebrush lizard, we found that critical habitat for the dunes
sagebrush lizard was not determinable at that time.
(53) Comment: There were multiple scientific reviews of the
proposed rule provided by various universities, oil companies, and
petroleum associations. All of these reviews raised issues with both
published and unpublished information used in our determination, and
problems with our interpretation of the information.
Our Response: We acknowledge that the science regarding the dunes
sagebrush lizard may not be complete, but we must base our decisions on
the best scientific information available. Many of the comments
reflected disagreement with the use of unpublished reports. Most of the
scientific reviews did not present new data regarding the status of the
dunes sagebrush lizard. Some of the comments reflect disagreements with
published literature. In our proposed rule and final determination, we
used the best available scientific information to support our decision.
Any new information that was provided, such as the 2011 surveys
completed in Texas and New Mexico, were incorporated into the
information in Species Information, above.
(54) Comment: A commenter questioned whether studying the lizard
contributes to its decline.
Our Response: There is no evidence that the limited research that
has been conducted on the dunes sagebrush lizard throughout its range
has led to population declines. Lizard populations are stable in the
Caprock Wildlife Area where long-term lizard monitoring has occurred
(Fitzgerald et al. 2011).
(55) Comment: A commenter questioned how blowing sand naturally
changes the dune structure, since this habitat is not sustainable over
time.
Our Response: The shinnery oak dune system relies on the natural
geologic processes of wind and vegetation changes to form new dunes and
shift the entire dune system. Unnatural changes to the geologic
structure will alter the dune system. Shinnery oak acts to stabilize
the dune structure to various degrees, and maintains the dunes
sagebrush lizard's unique habitat. Please see Species Information,
above, for further details.
(56) Comment: Soils in Texas have high sulfates with or without oil
and gas activities.
Our Response: We were unable to verify this information for the
shinnery oak dune habitat in Texas.
(57) Comment: Roads and well pads are actively being reclaimed
throughout the species' range.
Our Response: We have included information on ongoing reclamation
of caliche pads and roads in the discussions of Ongoing and Future
Conservation Efforts and The Present or Threatened Destruction,
Modification, or Curtailment of Its Habitat or Range, below.
(58) Comment: Oil and gas development in southeast New Mexico and
west Texas, which has taken place for many decades and has caused
habitat fragmentation, soil compaction, and destruction of the shinnery
oak, have contributed to the dunes sagebrush lizard's decline.
Our Response: We agree that oil and gas activities occur within the
range of the dunes sagebrush lizard, and portions of the species' range
have high levels of oil and gas development. This development has led
to the historic loss of vegetation, and has caused soil compaction and
habitat fragmentation. However, more than 50 percent of the dunes
sagebrush lizard's range is not currently fragmented with oil and gas,
and the lizard has adequate habitat to persist into the future.
(59) Comment: A 2011 study out of Texas Tech University did not
find that pollution is a threat to the dunes sagebrush lizard.
Our Response: The Texas Tech University study was limited in scope,
and specifically stated that it was preliminary information, and that
further research needs to be completed.
(60) Comment: The Service should not rely on the New Mexico
Conservation Agreements, Texas Conservation Plan, and RMPA to provide
adequate protections for the dunes sagebrush lizard and its habitat.
The species should be listed as endangered throughout its range.
Our Response: Based on our PECE analyses of the New Mexico
Conservation Agreements and Texas Conservation Plan, and our thorough
review of the RMPA, we have concluded that those conservation efforts
address threats throughout the range of the dunes sagebrush lizard, and
are adequate to reduce the threats to the species such that it no
longer meets the definition of endangered or threatened. See Ongoing
and Future Conservation Efforts, below, for additional discussion.
(61) Comment: Recent studies have shown that the dunes sagebrush
lizard's range is actually larger than previously thought. There is no
evidence that the range of the dunes sagebrush lizard is shrinking.
Our Response: The NMDGF, BLM, and Texas A&M University have been
conducting surveys to estimate the range of the dunes sagebrush lizard.
The known range of the dunes sagebrush lizard has been refined in New
Mexico, and has now been delineated in Texas (Fitzgerald et al. 2011,
p. 10). We do not have long-term monitoring data to evaluate whether
the dunes sagebrush lizard's population is increasing, stable, or
declining. Still, on a gross scale, our

[[Page 36882]]

observations indicate that the range of the dunes sagebrush lizard is
limited to the areas of shinnery oak dunes. The BLM, CEHMM, Texas A&M
University, and the Service will continue to monitor the dunes
sagebrush lizard's population and range as part of the New Mexico
Conservation Agreements and Texas Conservation Plan.
(62) Comment: There is no compelling information that the dunes
sagebrush lizard's population has been reduced.
Our Response: We have no evidence that the dunes sagebrush lizard's
population is declining, as we do not have survey information that is
robust enough to provide population information throughout the species'
range. However, we have information that indicates the range of the
lizard has declined in the past, primarily due to effects of oil and
gas development and shinnery oak removal. As discussed throughout this
document, we do not expect that the range of the lizard will continue
to decline, primarily due to the conservation measures provided by the
New Mexico Conservation Agreements, Texas Conservation Plan, and RMPA.
(63) Comment: The proposal did not discuss the role ranching plays
in maintaining large tracts of dunes sagebrush lizard habitat.
Our Response: Large tracts of dunes sagebrush lizard habitat are
beneficial to the persistence of the species into the future. These
unfragmented shinnery oak dunes provide core habitat that is necessary
for connectivity within and between populations. Sixty-nine percent
(151,083 ha (373,335 ac)) of the dunes sagebrush lizard's delineated
habitat in New Mexico is enrolled in New Mexico Conservation Agreements
for ranching in New Mexico. Please see Ongoing and Future Conservation
Efforts and Grazing, below, for more discussion.
(64) Comment: The proposal did not discuss what impacts listing may
have on other species of concern with overlapping ranges.
Our Response: The proposed rule specifically addressed the threats
to the dunes sagebrush lizard. Protection of dunes sagebrush habitat
also protects habitat for other species like the lesser prairie-chicken
and many other species that utilize the shinnery oak sand dune
ecosystem.
(65) Comment: A commenter inquired about the results of efforts of
the dunes sagebrush lizard working group.
Our Response: The dunes sagebrush lizard working group has recently
produced a white paper that prioritizes research and directs management
with the collaboration of scientists and agency biologists. This white
paper will be used to direct management for the New Mexico Conservation
Agreements and Texas Conservation Plan into the future.
(66) Comment: The proposal was only based on litigation pressure,
or was politically motivated.
Our Response: The dunes sagebrush lizard became a candidate in 2001
when the Service determined that listing was warranted, but precluded
by higher priority listing actions. While we ultimately agreed to
publish a proposed rule pursuant to a settlement agreement, the
rulemaking had previously been funded and substantial progress had
already been made on the draft at the time of the agreement. The
proposal was not litigation driven nor politically motivated, and was
based on the threats to the species at the time of publication.
(67) Comment: Several commenters provided opinions as to the value
of the conservation agreements. For example, one commenter noted that a
decision to list will create a disincentive for affected property
rights owners to cooperate with the Service. Other commenters opined
that the New Mexico Conservation Agreements, Texas Conservation Plan,
and RMPA are not regulatory and lack sufficient certainty or
effectiveness to obviate the continued need for listing. Further, the
Texas Conservation Plan is not reasonably certain to be implemented or
effective and it does not form a basis for declining to list the dunes
sagebrush lizard as endangered.
Our Response: We have completed PECE analyses for the New Mexico
Conservation Agreements and Texas Conservation Plan, and have
determined that there is sufficient certainty of implementation and
effectiveness of the conservation efforts established by those
agreements. Habitat loss is the primary threat to the species, and the
New Mexico Conservation Agreements, Texas Conservation Plans, and the
RMPA are all designed to reduce the threat of habitat loss. Directing
development outside of dunes sagebrush lizard habitat is the
foundational requirement that will protect the dunes sagebrush lizard
and its habitat from future impacts; and the New Mexico Conservation
Agreements, Texas Conservation Plan, and RMPA all have these
foundational requirements. In addition, both Agreements include
detailed plans for monitoring and reporting in the future. The Service
has incorporated our PECE analyses for the agreements and a thorough
description of BLM's implementation of the RMPA into the Ongoing and
Future Conservation Efforts and The Inadequacy of Existing Regulatory
Mechanisms discussions, below.
(68) Comment: Several commenters interpreted the Sias and Snell
study to say that dunes sagebrush lizards will increase in oil and gas
fields as compared to unfragmented habitat.
Our Response: The Sias and Snell (1998) report shows a significant
decline in dunes sagebrush lizards in areas fragmented with oil and gas
development, compared to unfragmented habitat. More recent research
from Texas A&M University has verified this finding at a landscape
scale (Leavitt et al. 2011). Though we do not know the exact mechanism
driving declines in dunes sagebrush lizards adjacent to oil and gas
development, we do have reliable evidence that dunes sagebrush lizards
decline in these areas.
(69) Comment: A commenter suggested the lizard may be declining due
to natural predation.
Our Response: There are natural predators of the dunes sagebrush
lizard, such as coachwhip snakes, shrikes (birds), collared lizards,
and roadrunners (birds). Some of these predators are more abundant in
areas with caliche pads and roads. Dunes sagebrush lizards are more
vulnerable to predation in areas with greater edge habitat and less
vegetative cover to avoid predation. See Disease or Predation, below,
for more information.
(70) Comment: Mesquite encroachment is a threat to the dunes
sagebrush lizard.
Our Response: We agree. Based on comments provided by the public,
BLM, and researchers in southeastern New Mexico, we have determined
that there are areas where mesquite is encroaching into shinnery oak
dunes, and threatens dunes sagebrush lizard habitat. The New Mexico
Conservation Agreement, Texas Conservation Plan, and RMPA all address
mesquite encroachment as a threat to the dunes sagebrush lizard. Please
see The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range, below, for more information. We have completed
an analysis of the New Mexico Conservation Agreements and the Texas
Conservation Plan under PECE, and have concluded that the conservation
efforts established by them are sufficiently certain to be implemented
and effective that they reduce the threats to the species so that it
does not meet the definition of endangered or threatened (see PECE
analysis at http://www.regulations.gov).
(71) Comment: Extinction is natural.
Our Response: The Service recognizes that extinction can be
natural. Extinction pressure can also be exacerbated by human-caused
threats. We completed a five-factor analysis to

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determine if there are threats, natural or manmade, to the dunes
sagebrush lizard, such that it is in danger of extinction now or likely
to become so in the foreseeable future. See Summary of Factors
Affecting the Species section, below.
(72) Comment: All species are habitat specialists. This is why you
do not find fish in the sand dunes.
Our Response: From an ecological perspective, the term habitat
specialist refers to a species that can tolerate a relatively narrow
range of environmental conditions. This contrasts with a habitat
generalists which describes a species that can tolerate a relatively
wide range of environmental conditions. The dunes sagebrush lizard is
considered a habitat specialist in that it is only found within the
shinnery oak sand dune habitat in southeastern New Mexico and western
Texas. The shinnery oak sand dunes provide the necessary vegetative
cover and structure for the dunes sagebrush lizard to lay eggs, seek
shelter, and find prey.
(73) Comment: In 2011, Smolensky and Fitzgerald's research found
that dunes sagebrush lizard habitat can have up to 9 percent caliche
cover (14.4 wells per section), and still have no negative impacts to
dunes sagebrush lizards. Commenters stated that this paper provides
evidence that oil and gas does not cause declines in dunes sagebrush
lizards.
Our Response: This research contained the above statement; however,
the research was not designed to experimentally test how oil and gas
may or may not be linked to declines in lizard populations. The Service
met with the researchers who provided the following clarifications
regarding their research and how it should be interpreted:
The study is preliminary, with 11 sites that varied in
habitat quantity and quality. Thus it was not possible to control for
the influence of habitat when analyzing the effect of caliche roads and
pads. The study was correlative, not experimental, and the history of
the individual sites was not accounted for.
The study showed habitat quantity and quality were
correlated. The study showed encounters per unit effort for dunes
sagebrush lizard was also correlated with habitat quantity.
Total area of caliche does not account for proximity of
wells to habitat areas nor the spatial configuration of roads and well
pads. It did not directly address the issues of habitat fragmentation.
The sites were chosen based on confirmed presence of dunes
sagebrush lizard at the time of the visual encounter transects. Thus
this study had no ability to detect if dunes sagebrush lizards had
disappeared from areas where extensive habitat modification had
occurred from oil and gas development.
This study demonstrates a link between habitat quantity
and quality. As such, the paper provides good evidence for support of
conserving large areas of shinnery dunes.
This paper and Smolensky and Fitzgerald (2010) provide
baseline estimates of numbers of dunes sagebrush lizards. This is
important because the information can be used to assess temporal trends
in dunes sagebrush lizard numbers.
The study did not find a direct effect of oil and gas
development, nor did it conclude there is no such effect. The authors
explained in detail that habitat area, habitat quality, and effects of
surface area of caliche were intermingled. As in the first point,
above, the effect of habitat quality was not separated from the effects
of scale and from effects of habitat conversion to caliche.
The study did not test if and how construction of caliche
roads and well pads may impact the condition of habitat over time. When
roads are built, the habitat for the dunes sagebrush lizard could
possibly deteriorate because roads fragment the habitat and may, for
example, facilitate encroachment of mesquite or influence maintenance
of the shinnery dune topography.
(74) Comment: The regulatory options available to the BLM when
permitting oil and gas development are either insufficient or are not
utilized by the agency. The conflicted nature of that agency's mission,
coupled with the extreme pressure exerted on its leaders by the oil and
gas industry, results in a scenario where environmental concerns often
take a backseat to development. Because of this regulatory inadequacy,
the dunes sagebrush lizard has not been sufficiently protected by the
BLM.
Our Response: We disagree. BLM voluntarily developed the RMPA and
subsequent CCA in order to better manage the dunes sagebrush lizard and
lesser prairie chicken habitats. BLM has provided substantial
information regarding the implementation of the RMPA in all aspects of
project planning. Please see the Factor D and Ongoing and Future
Conservation Efforts sections for a complete discussion.
(75) Comment: There was a map of the sagebrush lizard's range on
the Service Web site that covered a much larger area than was depicted
in the proposal.
Our Response: An erroneous map for Sceloporus graciousus arenicolus
was previously found in our Environmental Conservation Online System
(https://ecos.fws.gov) which depicted a range that included much of
Texas and New Mexico. The dunes sagebrush lizard is a full species,
Sceloporus arenicolus, which is only found in southeastern New Mexico
and southwest Texas. The erroneous account and map for Sceloporus
graciosus arenicolus have since been removed. Please see the Species
Information section, above, for a full description of the dunes
sagebrush lizard and its range.

Summary of Changes From the Proposed Rule

Based upon our review of the public comments, comments from other
Federal and State agencies, peer review comments, issues addressed at
the public hearing, and any new relevant information that may have
become available since the publication of the proposal, we reevaluated
our proposed rule and made changes as appropriate. Other than minor
clarifications and incorporation of additional information on the
species' biology, this determination differs from the proposal by:
(1) Based on our analyses, the Service has determined that the
dunes sagebrush lizard should not be listed as endangered. This
document withdraws the proposed rule as published in 2010 (75 FR 77801;
December 14, 2010).
(2) The Service has added the Ongoing and Future Conservation
Efforts section prior to the Summary of Factors Affecting the Species
section, below. The conservation agreements are no longer discussed in
Factor D. Inadequacy of Existing Regulatory Mechanisms, but are
included in this section.
(3) The Service completed an analysis of the amount of habitat
fragmented by caliche roads, that is now included in the Summary of
Factors Affecting the Species section.

Ongoing and Future Conservation Efforts

Below we review the current plans that provide conservation benefit
to the dunes sagebrush lizard. We describe the significant conservation
efforts that are already occurring and expected to occur in the future.
We have also completed an analysis of the ongoing and future
conservation efforts pursuant to our Policy for Evaluation of
Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100)
on the New Mexico Conservation Agreements and Texas Conservation Plan.

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New Mexico
After the dunes sagebrush lizard became a candidate species in
2001, a variety of conservation initiatives were put in place to
conserve the dunes sagebrush lizard's habitat, while continuing oil and
gas and ranching activities in the area. The document that served as
the foundation for the conservation of dunes sagebrush lizard was the
Collaborative Conservation Strategies for the Lesser Prairie-Chicken
and the Sand Dune Lizard (dunes sagebrush lizard) in New Mexico (2005).
This strategy provided the conservation framework necessary for the
development of the combined Candidate Conservation Agreement (CCA) and
Candidate Conservation Agreement with Assurances (CCAA) for the Lesser
Prairie-Chicken and Sand Dune Lizard (dunes sagebrush lizard)
(hereafter called New Mexico Conservation Agreements), and BLM's RMPA.
These collaborative conservation efforts are now being implemented to
benefit the dunes sagebrush lizard, as well as the lesser prairie-
chicken (Tympanuchus pallidicinctus).
The first document to describe the conservation efforts developed
in the conservation strategy was BLM's RMPA (see Factor D for
additional discussion).
After the implementation of the RMPA, CEHMM, BLM, and the Service
worked in cooperation and consultation with land owners and industry to
develop the New Mexico Conservation Agreements, in order to bring about
voluntary implementation of conservation measures for the lesser
prairie-chicken and dunes sagebrush lizard. If either species were
listed as threatened or endangered under the Act, the listing triggers
both a regulatory and a conservation responsibility for Federal, State,
and private landowners. These responsibilities stem from section 9 of
the Act that would prohibit ``take'' (i.e., harass, harm, pursue,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in
any such conduct) of listed species. In addition to the section 9
prohibitions, Federal agencies must ensure that their actions will not
jeopardize the continued existence of the listed species.
First, CEHMM, BLM, and the Service worked together for several
years to develop the CCA, to bring about conservation on BLM land, and
later they worked together to develop the CCAA to bring about
conservation on non-Federal lands. The CCA was developed with the
vision that the conservation measures would be implemented while the
species were still candidates, and would be effective at conserving
both species so as to preclude the need to list. This is accomplished
by way of industry, landowner, and agency collaboration combining their
respective resources to provide comprehensive conservation results that
are demonstrable and beneficial to both species.
If either species were listed as threatened or endangered under the
Act, the listing would trigger both a regulatory and a conservation
responsibility for Federal, State, and private landowners. These
responsibilities stem from section 9 of the Act that would prohibit
``take'' (i.e., harass, harm, pursue, shoot, wound, kill, trap,
capture, or collect, or attempt to engage in any such conduct) of
listed species. In addition to the section 9 prohibitions, Federal
agencies must ensure that their actions will not jeopardize the
continued existence of the listed species. Under the CCA, participants
have joined by voluntarily signing a certificate of participation (CP),
and their actions have been analyzed in the Service's conference
opinion on the CCA, which would be converted to a biological opinion
and provide incidental take coverage should either species be listed.
As such, participants in the CCA receive a high degree of certainty
that additional restriction would not be placed on their otherwise
legal activities.
The companion CCAA provides incentives for voluntary conservation
of species-at-risk on private and State lands. Under the CCAA, a
property owner voluntarily commits to implement specific conservation
measures on non-Federal lands for the species by signing a certificate
of inclusion (CI). Under the CCAA, if either species is listed, then
private landowners receive assurances that additional restrictions
would not be placed on their otherwise legal activities. Without
regulatory assurances, landowners may be unwilling to initiate
conservation measures for these species. In both cases, signing up
under the CCA or CCAA is voluntary. Through enactment of a voluntary
program, enrollees can elect to continue participation at their
discretion. This translates into enrollees' prerogative to opt out if
they so desire. Leaving participation, however, eliminates the
programmatic safeguards that CCA and CCAA provide.
Interested CCA participants enroll their Federal mineral or surface
leases through a CP, and CCAA participants enroll non-Federal mineral
or surface parcels through a CI. At enrollment, the participants
understand that all conservation measures are binding and each is
implemented at the time when the specific conservation measures are
applicable. Each surface-disturbing activity that occurs after
enrollment results in a habitat conservation fee, as described in an
action-specific fee schedule located in the CI or CP.
CEHMM has established a two-step review process to ensure
implementation of the conservation measures. Step one consists of BLM
permitting activities on public lands only according to the
conservation measures listed in an enrolled company's CP. Similarly, a
participant works with CEHMM to plan non-Federal activities according
to conservation measures in their CI. The New Mexico Oil Conservation
Division reviews all Federal and non-Federal applications for permits
to drill, and posts the approved permits on their Web site. In step
two, CEHMM queries the Web site weekly to determine where new well
locations were permitted, and then reviews the locations on enrolled
lands, either mapped or in the field, to ensure compliance with the
applicable conservation measures. CEHMM then calculates the habitat
conservation fee and charges the company the appropriate fees within 10
working days. For noncompliant locations, CEHMM contacts the company
and negotiates changes to the project so that the conservation measures
are implemented properly. Finally, BLM and participants submit data
summarizing surface-disturbing activities to CEHMM for inclusion in
monthly and annual reports to the Service. This process monitors all
participants and ensures that development does not occur in dunes
sagebrush habitat in enrolled areas.
A conservation team, including biologists from the Service, BLM,
CEHMM, NMDGF, and the New Mexico State Land Office, was established to
prioritize projects to be funded for dunes sagebrush lizard habitat
restoration, reclamation of historical pads and roads, environmental
contaminant removal, and other research leading to conservation of the
dunes sagebrush lizard.
As of May 2012, there were 151,083 ha (373,335 ac) enrolled in the
New Mexico Conservation Agreements under ranching agreements and
112,060 ha (276,906 ac) enrolled under mineral agreements. On March 1,
2012, the New Mexico State Land Office enrolled all State Trust lands
in lesser prairie-chicken and dunes sagebrush lizard habitat in a
unique CI under the CCAA. As of May 2012 in New Mexico, 83 percent of
the dunes sagebrush lizard's habitat was enrolled in the New Mexico

[[Page 36885]]

Conservation Agreements. Properties may be enrolled by both the
landowner for ranching activities, and by the oil or gas company for
extraction activities. Including the areas that BLM has removed from
leasing altogether, the area covered by the RMPA, and the area enrolled
in the New Mexico Conservation Agreements, 211,708 ha (523,129 ac) have
conservation measures applied to them. This is 95 percent of the total
dunes sagebrush lizard habitat in New Mexico. The Service has completed
a PECE analysis on the New Mexico Conservation Agreements, and it is
available for review at http://www.regulations.gov.
Texas
A conservation plan has been developed for dunes sagebrush lizard
habitat in Texas. The Texas Conservation Plan was developed and
approved after the publication of the proposed rule to list the dunes
sagebrush lizard. It was developed in conjunction with the Texas
Comptroller's Office (the permittee) and many stakeholders, including
Federal, State, and private partners representing interests in the
natural resource, oil and gas, ranching, and agricultural industries.
The Texas Conservation Plan is structured differently than the New
Mexico Conservation Agreements in its implementation of conservation
measures (e.g., avoidance, minimization, and mitigation). The Texas
Conservation Plan focuses on the avoidance of activities within lizard
habitat that would further degrade habitat, reclamation of lizard
habitat to reduce fragmentation, and, due to the presence of mesquite
in Texas habitat, removal of mesquite that is encroaching into shinnery
oak dunes. If avoidance of lizard habitat cannot be accomplished, the
participants may adopt conservation measures that minimize habitat
impacts, and as a last resort, mitigate for the loss of lizard habitat.
Each CI will be developed upon enrollment and will be unique to
each site enrolled. Therefore, the overall conservation standards
incorporated in each CI must work to accomplish the conservation goals
of the Texas Conservation Plan while providing maximum benefit to the
dunes sagebrush lizard. Though the specific conservation measures
described in each CI may vary on a case-by-case basis, the Texas
Conservation Plan as a whole limits the amount of habitat loss within
dunes sagebrush lizard habitat to one percent in the first 3 years. As
detailed in the permit and the Texas Conservation Plan, the permittee
must first demonstrate avoidance and show that all appropriate
minimization measures have been utilized before any habitat degradation
is allowable. Then, if habitat loss is unavoidable, the permittee must
secure mitigation commensurate with the impact prior to authorizing any
habitat loss, and, further, that habitat loss cannot exceed one percent
of the total dunes sagebrush lizard habitat in Texas over the first 3
years of implementation of the Texas Conservation Plan (2012 to 2015).
After the first 3 years, the Service and the permittee will evaluate
the Texas Conservation Plan's accomplishments, and analyze any habitat
loss authorized by the CIs, to determine if future habitat loss (up to
10 percent) may be authorized. Total dunes sagebrush lizard habitat
loss will not exceed 10 percent during the 30-year life of the Texas
Conservation Plan.
The primary conservation measure limits impacts to high-quality
habitat on enrolled areas. Participants work with the permittee (or
third party contractor, because the Texas Comptroller's Office
anticipates contracting this function out to a third party) to develop
individual CIs through a process identified in Appendix F of the Texas
Conservation Plan. This process involves a habitat impact assessment,
discussion of conservation options under the Texas Conservation Plan,
determination of mitigation needs, and development of a property-
specific management plan. This is agreed upon through the signing of
the CI. A participant is then responsible for proper implementation,
annual and monthly reporting, and compliance monitoring (via third
party contractors making post-construction site visits on behalf of the
permittee). The permittee will provide regular reports to the Service
and meet with the Service to determine if habitat goals are being met.
The other provisions of the Texas Conservation Plan are based on the
Conservation Recovery Award System and mitigation for loss of habitat
(which is also monitored by a third party contractor). Though there may
be some habitat impacts, habitat restoration done through the award
system will offset this and have the positive effect of decreasing
habitat fragmentation and providing for the long-term conservation of
the species. It is required that 90 percent of the delineated habitat
in Texas be avoided, and only up to 10 percent of the habitat may
eventually be taken (under the stipulations described above), only if
that same amount of habitat has already been created elsewhere by
restoring previously developed habitat, or protecting habitat from
mesquite encroachment.
As of May 2012, the Texas Conservation Plan included 91,959 ha
(227,235 ac). Of that area, 56,105 ha (138,640 ac) (71 percent) are
within mapped lizard habitat. Of this amount, 28,363 ha (70,087 ac) (56
percent) represent lizard habitat that is classified as occupied lizard
habitat. The remaining 35,853 ha (88,595 ac) represent areas adjacent
to mapped lizard habitat that may buffer or connect patches of lizard
habitat. We anticipate these numbers to increase as additional CIs are
signed and more detailed information on enrolled lands is provided. The
Service has completed a PECE analysis on the Texas Conservation Plan,
and it is available for review at http://www.regulations.gov.
PECE
The purpose of PECE is to ensure consistent and adequate evaluation
of recently formalized conservation efforts when making listing
decisions. The policy provides guidance on how to evaluate conservation
efforts that have not yet been implemented or have not yet demonstrated
effectiveness. The evaluation focuses on the certainty that the
conservation efforts will be implemented and effectiveness of the
conservation efforts. The policy presents nine criteria for evaluating
the certainty of implementation and six criteria for evaluating the
certainty of effectiveness for conservation efforts. These criteria are
not considered comprehensive evaluation criteria. The certainty of
implementation and the effectiveness of a formalized conservation
effort may also depend on species-specific, habitat-specific, location-
specific, and effort-specific factors. We consider all appropriate
factors in evaluating formalized conservation efforts. The specific
circumstances will also determine the amount of information necessary
to satisfy these criteria.
To consider that a formalized conservation effort contributes to
forming a basis for not listing a species, or listing a species as
threatened rather than endangered, we must find that the conservation
effort is sufficiently certain to be (1) Implemented, and (2)
effective, so as to have contributed to the elimination or adequate
reduction of one or more threats to the species identified through the
section 4(a)(1) analysis. The elimination or adequate reduction of
section 4(a)(1) threats may lead to a determination that the species
does not meet the definition of threatened or endangered, or is
threatened rather than endangered.

[[Page 36886]]

An agreement or plan may contain numerous conservation efforts, not
all of which are sufficiently certain to be implemented and effective.
Those conservation efforts that are not sufficiently certain to be
implemented and effective cannot contribute to a determination that
listing is unnecessary, or a determination to list as threatened rather
than endangered. Regardless of the adoption of a conservation agreement
or plan, however, if the best available scientific and commercial data
indicate that the species meets the definition of ``endangered
species'' or ``threatened species'' on the day of the listing decision,
then we must proceed with appropriate rulemaking activity under section
4 of the Act. Further, it is important to note that a conservation plan
is not required to have absolute certainty of implementation and
effectiveness in order to contribute to a listing determination.
Rather, we need to be certain that the conservation efforts will be
implemented and effective such that the threats to the species are
reduced or eliminated.
New Mexico Conservation Agreements--Using the criteria in PECE, we
evaluated the certainty of implementation and effectiveness of the New
Mexico Conservation Agreements. We have determined that the
conservation efforts have a high certainty of being implemented. Our
reasons for concluding that our level of certainty is high are that the
level of enrollment is high (over 83 percent of lizard habitat is
enrolled), the mechanism and authorities for collecting funds are in
place, the process for allocating funds to support reclamation work and
research in lizard habitat is in place, the monitoring and
documentation of compliance with the conservation measures are in
place, and monthly and annual reports are complete, and all parties
have the legal authorities to carry out their responsibilities under
the New Mexico Conservation Agreements. We have determined that the
conservation efforts are effective at eliminating or reducing threats
to the species because they direct new development and herbicide
treatments outside of suitable and occupied habitat, restore habitat,
and reduce fragmentation. We are confident that the efforts will
continue to be implemented because we have a documented track record of
compliance on all of the enrolled lands to date. In over 3 years of
implementation, neither CEHMM nor the BLM have reported incidence of
non-compliance with the conservation measures. Measures, such as
reclamation, are placed on an implementation schedule and will be
effective upon completion. Participants have sufficient incentive to
remain enrolled and continue conservation of habitat for the lizard.
The agreements have sufficient monthly and annual monitoring and
reporting requirements to ensure that all of the conservation measures
are implemented as planned, and are effective at removing threats to
the lizard and its habitat. The collaboration between the Service,
CEHMM, and BLM requires regular team meetings and involvement of all
parties in order to implement the agreements fully. We find that the
conservation efforts in the New Mexico Conservation Agreements and its
implementing CIs and CPs have a high level of certainty of
implementation (for those measures not already implemented) and
effectiveness and can be considered as part of the basis for our final
listing determination for the lizard.
Texas Conservation Plan--After review and analysis of the Texas
Conservation Plan pertaining to the dunes sagebrush lizard in Texas, we
have determined that the conservation effort will be effective at
eliminating or reducing threats to the species, because it first avoids
habitat and if necessary, limits development within suitable and
occupied habitat as a priority, and it also improves and strives to
restore habitat and reduces fragmentation. We are confident that the
conservation effort will be implemented on enrolled acres, and the loss
of habitat will be limited to 1 percent in the first 3 years of the
plan, and not more than 10 percent over the 30-year life of the permit.
Mitigation measures, such as habitat improvement and mesquite removal,
are priorities in the plan. The agreements have sufficient monthly and
annual monitoring and reporting requirements to ensure that all of the
conservation measures are implemented as planned, and are effective at
removing threats to the lizard and its habitat. The collaboration
between the Service and other stakeholders requires regular meetings
and involvement of all parties in order to implement the agreements
fully. For this reason, we have determined that the Texas Conservation
Plan will be implemented and effective at reducing the threats to the
lizard in Texas, given that the majority (71 percent) of mapped lizard
habitat in Texas has been enrolled.
As of May 2012, there are 56,105 ha (138,640 ac) of dunes sagebrush
lizard habitat enrolled in the Texas Conservation Plan. Enrollees have
collectively remitted approximately $773,000 in participation fees into
the Habitat Protection Fund administered by the Texas Conservation
Plan, all funds which cannot be used by the Texas Legislature for any
other purpose.
Some of the same companies who are enrolled in the New Mexico
Conservation Agreements have also either enrolled or committed to
enroll acres in Texas. Two major operators, Conoco-Phillips and Bopco,
are enrolled in both plans. As evidenced by the enrollment acreages and
funds collected thus far, numerous other companies have submitted
enrollment forms to enroll in the Texas Conservation Plan. However, due
to confidentiality protections provided by the Texas Conservation Plan,
those company names have not been disclosed to date. The high level of
participation and compliance with the New Mexico Conservation
Agreements and additional voluntary conservation efforts prescribed by
the Texas Conservation Plan supports our determination that similar
enrollment, implementation, and success is likely to be achieved in
Texas.
The Service issued the permit to the permittee on February 17,
2012. Since then, in a short time, the permittee has enrolled
significant acreages, collected funds from current enrollees, and has
created and set into motion a non-profit organization to administer
specific functions of the Texas Conservation Plan, including but not
limited to, outreach to attract more participation. As of May 2012, the
third party administrator is negotiating agreements with interested
parties. It is reasonable to conclude that the enrollments will
continue and dunes sagebrush lizard habitat placed under conservation
through the Texas Conservation Plan will increase over time. We
conclude that the Texas Conservation Plan has a high level of certainty
of implementation and effectiveness, and can therefore be considered as
part of the basis for our final determination for the dunes sagebrush
lizard.
Our full analysis of the New Mexico Conservation Agreements and
Texas Conservation Plan pursuant to PECE can be found at http://www.regulations.gov.

Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR 424)
set forth the procedures for adding species to the Federal Lists of
Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species if the Service
determines that it is in danger of extinction or likely to become so
due to

[[Page 36887]]

one or more of the five factors described in section 4(a)(1) of the
Act: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. Listing actions may be warranted based on any of
the above threat factors, singly or in combination. Each of these
factors is discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range

The dunes sagebrush lizard is a habitat specialist and is found
only in shinnery oak dune habitat (Sias and Snell 1998, p. 1). Shinnery
oak is considered to be a highly threatened community (Dhillion et al.
1994, p. 52), and the shinnery oak dune habitat is a subset of that
larger community. Changes in either land management practices or
climate that impact this vegetative community reduce the potential for
the habitat to be available, and may destabilize the dunes within the
shinnery oak dune habitat (Muhs and Holliday 2001, p. 86).
The greatest threat to the dunes sagebrush lizard is the loss of
its specialized habitat, due to a variety of factors, including
activities associated with oil and gas development, and herbicide
treatment for range improvements. Other threats that are also expected
to contribute to habitat loss, modification, or fragmentation in the
future include localized OHV use, wind and solar energy development,
climate change, and drought.
In addition to habitat loss, development causes habitat
fragmentation that breaks up large areas of suitable habitat into
smaller patches. When large habitat patches are divided into smaller
patches, there is increased edge habitat and decreased interior
habitat. Individuals that live near the habitat's edge have limited
resources because the exterior areas do not provide adequate shade,
cover, or prey. The loss of vegetation and cover along habitat edges
decreases survivorship, growth, and reproduction, and also increases
predation. Individuals within smaller habitat patches, with greater
proportions of edge habitat, have an increased chance of mortality,
because they have less of a barrier between the core patch and the
habitat disturbance (Dramsted et al. 1996; p. 23; Jaeger et al. 2005,
p. 329; Ingelfinger and Anderson 2004, p. 385; Delgado-Garcia et al.
2007, p. 2949; Ballesteros-Barrera et al. 2007, p. 736; Sias and Snell
1996, p. 28; Endriss et al. 2007, p. 320).
For most lizard species, connectivity and movement between patches
could also play an important role in determining the occupancy and
sustainability of each patch (Barrows and Allen 2007, p. 66). The
probability of a species going extinct in local habitat patches
increases with fragmentation, as the patches become more isolated from
each other (Dramstad et al. 1996, pp. 20-24).
We do not know how large habitat patches need to be in order to
maintain viable populations of dunes sagebrush lizards. However,
literature published on other species has shown that populations within
smaller habitat patches have a greater risk of extinction than those in
large habitat patches, because small patches support fewer individuals
and have a higher proportion of less suitable edge habitat than more
suitable interior habitat (Dramsted et al. 1996, pp. 20-24). For the
similar sand-dwelling Coachella Valley fringe-toed lizard (Uma
inornata), a decrease in habitat patch size resulted in an increased
probability of local extinction. For isolated habitat patches to
sustain fringe-toed lizard populations, patch size needed to be at
least 100 ha (250 ac) (Chen et al. 2006, p. 28). Research on the
Florida scrub lizard (Sceloporus woodi) found that patch size
significantly influenced recruitment and survivorship, with the number
of hatchlings per female doubling in the largest habitat patches (Hokit
and Branch 2003, p. 61).
Based on these studies, we expect that the largest habitat patches
for the dunes sagebrush lizard would support higher populations and
decrease the chance of local population loss and extinction. The
habitat for the dunes sagebrush lizard is currently patchy and
fragmented throughout its range, and populations are not always
connected by suitable habitat, due to natural geologic processes and
human development (Chan et al. 2008, p. 10). The movement of this
dynamic system could be interrupted by habitat fragmentation that would
prevent the geologic processes from continually forming dunes, and
potentially cause the current dune structures to collapse. Also, there
is little evidence to suggest that dunes sagebrush lizards often
traverse unsuitable habitat to find suitable habitat patches
(Fitzgerald et al. 1997, p. 26).
Genetic diversity of dunes sagebrush lizard populations has
historically been linked to the connectivity of the entire system (Chan
et al. 2008, p. 10). Therefore, the fragmentation and loss of habitat
can lower migration rates and genetic connectivity among remaining
populations of dunes sagebrush lizards, potentially reducing genetic
variability and increasing extinction risk. If dunes sagebrush lizards
are unable to move between habitat patches because of natural
patchiness and fragmentation, genetic connectivity will be reduced or
lost, and individual populations will become vulnerable to stochastic
events (Chan et al. 2008, p. 10).
The following activities have resulted in the loss and
fragmentation of dunes sagebrush lizard habitat. Along with each
activity, there is a description of the existing conservation actions
that are intended to conserve the dunes sagebrush lizard and its
habitat.
Oil and Gas Development
The dunes sagebrush lizard is found within the Permian Basin, which
is one of the most productive oil and gas producing areas in the
western United States. Over 50 percent of oil production in Texas
occurs in Districts 8 and 8A (Texas oil and gas districts); these
districts overlap the known geographic range of the dunes sagebrush
lizard (Tarver and Dasgupta 1997, p. 3670). Within New Mexico, 70
percent of land within the range of the dunes sagebrush lizard has been
leased by private entities, BLM, or the New Mexico State Land Office
for oil and gas exploration and development (Service 2012, p. 1). Oil
and gas activities have been linked to the reduction in dunes sagebrush
lizard numbers around oil and gas wells (Sias and Snell 1998, p. 10;
Leavitt et al 2011, p. 3).
There are various research projects regarding the effects of oil
and gas development on the dunes sagebrush lizard. The first research
project to investigate the potential effects of oil and gas activities
on the dunes sagebrush lizard was completed in 1998 (Sias and Snell
1998). The goal of this study was to determine if there was a localized
influence around wells placed within or adjacent to shinnery oak dune
habitat, on the dunes sagebrush lizard. Visual surveys were conducted
along transects at various distances from well sites, within dunes
sagebrush lizard habitat. Surveys were only completed in areas where
dunes sagebrush lizards were present, based on presence/absence surveys
performed prior to this effort (Sias and Snell 1998, p. 3).
This study found a negative relationship between well density and
the number of dunes sagebrush lizards present at sites (Sias and Snell
1998, p. 9). A regression analysis was completed that predicted a 25
percent decline of

[[Page 36888]]

dunes sagebrush lizard populations in areas where well densities were
13.64 wells per section. In addition, the study noted that dunes
sagebrush lizard populations in areas with well densities of 29.82
wells per section were predicted to decline by 50 percent (Sias and
Snell 1998, p. 10). The study also found that there were 39 percent
fewer dunes sagebrush lizards in areas that were 80 m (260 ft) away
from well pads, as compared to well pads that are greater than 190 m
(620 ft) from dunes sagebrush lizard sites (Sias and Snell 1998, p. 2).
This study suggests that moderate levels of oil and gas activities are
not an imminent threat to the species, but high levels of continued
development could result in population reductions (Sias and Snell 1998,
p. 23).
In 2011, a preliminary study was published that showed habitat
quantity and quality for the dunes sagebrush lizard were positively
correlated. This research was done on 11 sites that varied in habitat
quantity and quality, and were all occupied with dunes sagebrush
lizards. This study was not designed to detect if dunes sagebrush
lizards had disappeared from areas where extensive habitat modification
had occurred from oil and gas development. The study showed encounters
per unit effort for dunes sagebrush lizards were correlated with
habitat quantity. In other words, more dunes sagebrush lizards were
found in large areas of abundant habitat, regardless of whether the
overall landscape was fragmented. This study did not find a direct
effect of oil and gas development, nor did it conclude there is no such
effect. As such, the paper provides good evidence for support of
conserving large areas of shinnery dunes (Smolensky and Fitzgerald
2011, pp. 315-324).
In 2009, a study was initiated to determine how management
practices affected patterns of landscape fragmentation and populations
of dunes sagebrush lizards. Because the 1998 study determined that
there were fewer dunes sagebrush lizards around well pads, this study
was designed to determine if the same trends exist at a larger
population scale (Leavitt et al. 2011, p. 3). The study established
long-term monitoring sites in areas that are fragmented with oil and
gas development, and areas that are not fragmented. Each site has
pitfall grids to capture and mark dunes sagebrush lizards in each
habitat type. Mark and recapture data from these grids will be used to
estimate population size.
The data were collected from 27 trapping grids over 3 years, for a
total of 48,600 trap days, and data collection will continue through
2012. The total number of all lizards captured in fragmented and
unfragmented sites was not significantly different, but dunes sagebrush
lizards were captured at much lower frequencies on fragmented grids
compared to unfragmented grids (Leavitt et al. 2011, pp. 5-7). Four of
the fragmented grids have yet to have a dunes sagebrush lizard captured
on them. These grids are located at historical dunes sagebrush
localities, in a highly developed oilfield between U.S. Highway 82 and
NM State Highway 529, between Maljamar, New Mexico and Loco Hills, New
Mexico (Leavitt et al. 2011, p. 7).
The three studies described above did not look closely into the
causes (specific activities) of the reduced lizard populations in the
vicinity of areas of oil and gas development that pose specific threats
to the dunes sagebrush lizard. However, it is likely that the reduction
or absence of dunes sagebrush lizards from sites adjacent to oil and
gas wells has probably resulted from the cumulative effects of all of
the activities associated with the development. The activities and
infrastructure for oil and gas development included seismic
exploration, roads, pads where well pumps and drilling rigs are placed,
battery tanks, power lines, pipelines, and injection wells. Each of
these specific activities is discussed below.
Caliche Pads and Roads--In the sandy soils of the dunes, it is
necessary to increase the stability of the sandy surface to create
roads for large equipment and trucks. Caliche (soil with high amounts
of calcium carbonate) was common throughout the range of the dunes
sagebrush lizard and often used to stabilize the sand. Bulldozers have
been used to remove vegetation, and caliche was placed over the sand to
create a road or well pad. The removal of shinnery oak dune habitat has
resulted in a grid of roads and pads, pipelines, and power lines that
are found at varying degrees throughout the range of the dunes
sagebrush lizard.
Within the range of the dunes sagebrush lizard, there are 10,995
well sites. Each oil pad averages 0.8 to 1.2 ha (2 to 3 ac), and each
gas pad averages 1.2 to 1.6 ha (3 to 4 ac) (Service 2012, p. 1). The
Service has digitized all of the roads within the dunes sagebrush
lizard habitat to estimate the percent of habitat that falls within 200
m (656 ft) of a road, which is the measure we used for habitat to be
considered fragmented (as defined in Sias and Snell 1998). Forty-six
percent of the total 301,468 ha (744,994 ac) of habitat in New Mexico
and Texas are currently fragmented by roads. Forty-eight percent of the
81,509 ha (201,413 ac) of habitat in Texas (Fitzgerald et al. 2011, p.
10), and 45 percent of the 219,979 ha (543,581 ac) of habitat in New
Mexico have been fragmented (Service 2012, p. 1).
The portions of the dunes sagebrush lizard's range where oil and
gas activities were most prevalent are in the southern part of their
range in New Mexico and West Texas, where the density of roads and well
pads may have contributed to further separation of the southern
population from the central population of dunes sagebrush lizards (Chan
et al. 2008, p. 9). In New Mexico, this development covers an area of
shinnery oak dunes measuring 8 km (5 mi) by 26 km (16 mi), between U.S.
Highway 82 and U.S. Highway 62 in Lea and Eddy Counties. In this area
there are 142 sections (36,780 ha (90,880 ac)) where the well pad
density is greater than 13 wells per section. In the BLM's RMPA
planning area, which incorporates all of the dunes sagebrush lizard's
habitat on BLM land in New Mexico, approximately 100 new wells per year
are to be drilled over the next 20 years (BLM 2007, p. 4.37). However,
management prescriptions in the published RMPA direct that these
activities will be outside of occupied dunes sagebrush lizard habitat.
The network of roads and pads throughout the shinnery oak dune
habitat altered the habitat, making it difficult for shinnery oak to
emerge and persist; the trees cannot grow through compacted areas, with
increased calcium carbonate, or through permanently paved areas. Well
pad and road construction removed shinnery oak on the surface, and
further degraded the habitat by causing soil compaction. After well
pads have been abandoned, shinnery oak did not reestablish unless the
caliche was removed and rhizomes (horizontal underground stems) could
regrow (Boyd and Bidwell 2002, p. 332). When the shinnery oak dune
habitat was destroyed or fragmented by roads and pads, the resources
provided by the shinnery oak were subsequently reduced, and dunes
sagebrush lizard populations were subdivided into smaller and more
vulnerable patches.
Hatchling and adult dunes sagebrush lizards have been found in
shinnery oak flats between large dunes, suggesting that the area
between the sand dunes is important for dispersal. Surveys by the BLM
recorded dunes sagebrush lizards in the shinnery oak flats (Bird 2007,
p. 2). In the past, oil and gas development has been directed into the
shinnery oak flats and out of the dune complexes to lessen the impact
to the dunes sagebrush lizard. In studies of other

[[Page 36889]]

lizard species where habitat is highly fragmented, lizards are limited
to small habitat patches. These studies have also found increased
mortality, due to collisions with vehicles, and due to inaccessibility
to habitat, mates, and prey, leading to a reduction in population size
and population persistence (Delgado-Garcia et al. 2007, p. 2949).
Based on various studies for similar lizard species, it would be
expected that there have been negative impacts to dunes sagebrush
lizards and their habitat as a result of roads and pads associated with
oil and gas development. These impacts include soil compaction;
decreased stability of microclimates; loss of habitat; decreased
habitat quality; division of the ecosystem with artificial gaps; abrupt
habitat edges; conversion of habitat interior to habitat edge;
inhibited access to resources for foraging, breeding, nesting, predator
avoidance, and thermoregulation; behavior modification; and direct
mortality due to collisions (Jaeger et al. 2005, p. 329; Ingelfinger
and Anderson 2004, p. 385; Delgado-Garcia et al. 2007, p. 2949;
Ballesteros-Barrera et al. 2007, p. 736; Sias and Snell 1996, p. 28;
Endriss et al. 2007, p. 320).
The New Mexico Conservation Agreements, RMPA, and Texas
Conservation Plan all limit future development of roads and pads within
the delineated habitat for the dunes sagebrush lizard. These plans also
provide for removal of existing roads and pads once they become
inactive in order to increase connectivity between shinnery oak dune
complexes. The Service believes that the roads and pads associated with
oil and gas development remove habitat and cause habitat fragmentation
where they occur. However, more than 50 percent of the dunes sagebrush
lizard's habitat is not fragmented (Service 2012, p. 1), and provides
adequate core habitat for the dunes sagebrush lizard to feed, breed and
shelter.
Pipelines--There are a variety of different pipelines throughout
the oilfields. First, there are gathering lines, which range in size
from 5 to 20 cm (2 to 8 in) in diameter, and are often laid on the
surface. These small lines gather the oil from many wells, and connect
to larger trunk lines measuring 20 to 61 cm (8 to 24 in) in diameter,
which tend to be buried lines. Every oil or gas well has an associated
pipeline, and a separate right-of-way for each pipeline. Buried
pipelines were built by digging linear trenches that are 1 to 2 m (3 to
6 ft) deep, depending on the pipe being laid. The construction of
pipelines removed vegetation, including shinnery oak. Pipelines are
located throughout the range of the dunes sagebrush lizard. We believe
pipelines pose a mortality risk to the dunes sagebrush lizard in areas
where oil and gas infrastructure has been most dense, and may continue
to be a mortality risk if oil and gas activities expand in the central
and northern parts of the range of the species. The most significant
stressor to the dunes sagebrush lizard associated with pipelines is the
actual construction process, which removes vegetation, including
shinnery oak, and also destabilizes the overall dune structure when
placed in the dunes. Large equipment can crush nests and individuals
hiding beneath the sand.
Another stressor has been the large open trenches that can form
linear pitfall traps. There have been numerous recorded instances of
reptiles and amphibians being trapped in pipeline, waterline, and
telecommunication line trenches (Hawken 1951, p. 81; Anderson et al.
1952, p. 276). For example, in 2001, a 4.8-km (3.0-mi) long
telecommunication line trench (similar in structure to pipeline
trenches) on Albuquerque, New Mexico's West Mesa was monitored for
trapped animals. During 23 days of monitoring, 298 reptiles and
amphibians, including several lizard species, were removed from the
trench (Painter 2008, p. 1). There were no escape ramps along the
trench, so it was impossible for animals to escape.
During a distribution survey for dunes sagebrush lizards in July
2008, the NMDGF found an open pipeline ditch that went through State,
private, and BLM land, that was determined to be out of compliance with
the company's BLM permit, and occurred on land that was not enrolled in
the CCA. The open ditch was approximately 1.2 m (4 ft) wide and 1.2 m
(4 ft) deep, bisecting a dune complex known to be occupied with dunes
sagebrush lizards. The large, open ditch had formed a pitfall trap
where animals could not escape if they fell in. Though no dunes
sagebrush lizards were detected in the ditch at the time of the survey,
other reptiles were found in the ditch, and surveyors were concerned
that dunes sagebrush lizards could easily be trapped in the ditch
(Currylow et al. 2008, p. 1).
Once the pipelines are established, properly functioning pipelines
are less of a stressor to the dunes sagebrush lizard. Some existing
buried pipelines located within shinnery oak dunes provide sunken dune-
like areas where dunes sagebrush lizards are found. Twenty-four percent
of dunes sagebrush lizards found during BLM surveys were found along
pipelines adjacent to shinnery oak dunes (Bird 2006, p. 2). Although it
is not known how dunes sagebrush lizards utilize existing pipelines
(Sias and Snell 1998, p. 5; Bird 2005, p. 1; Bird 2006, p. 1; Bird
2007, p. 1), the shinnery oak does reestablish in these areas, and they
do provide the necessary habitat for dunes sagebrush lizards to forage
and find shelter.
Since dunes sagebrush lizards can be found along pipelines, routine
maintenance and potential leaks are localized stressors to the dunes
sagebrush lizard. Leaks expose dunes sagebrush lizards to toxins, and
routine maintenance increases the likelihood of being crushed by OHV
travel along pipelines (Sias and Snell 1998, p. 3). On May 16, 2010, a
pipeline burst in dunes sagebrush lizard habitat, spraying oil into the
air and across the landscape (Leavitt 2010, p. 1). These spills
introduce toxins and contaminants into the soil and cover surrounding
vegetation. However, the stressors associated with pipelines are
localized, and are more prevalent in areas where oil and gas
development has been high.
Because pipelines are localized and the effects are temporary, it
is not anticipated that they will have a significant impact on
populations or the species as a whole. The New Mexico Conservation
Agreements and Texas Conservation Plan route pipelines out of dunes
sagebrush lizard habitat, and encourage the use of established
corridors for pipelines to minimize disturbance each time a pipeline is
established. The same conditions apply on public lands through the BLM
RMPA. The New Mexico Conservation Agreements have a trench stipulation
that requires that any open trench have escape ramps or biological
monitors to remove any vertebrate from the trench. This conservation
measure discourages open trenches near dunes sagebrush lizard habitat.
The BLM and New Mexico Oil Conservation Division work with companies to
prevent and quickly clean up emergency spills. The Service concludes
that while pipelines may pose localized threats where they occur, the
potential impact of pipelines is very small in relation to the total
lizard habitat. The dunes sagebrush lizard has adequate unfragmented
habitat available throughout its range such that pipelines do not pose
a significant threat. Further, the conservation measures provided in
the New Mexico Conservation Agreements and Texas Conservation Plan, and
the conditions stipulated in the BLM RMPA will minimize any potential
impacts from pipelines.

[[Page 36890]]

Powerlines--Like pipelines, powerlines have been located throughout
the range of the dunes sagebrush lizard, and are more prevalent in
areas of high oil and gas development. We believe the presence of
powerlines may have increased predation to the dunes sagebrush lizard
in areas where oil and gas infrastructure has been most dense, and may
continue to be a stressor as oil and gas activities expand in the
central and northern parts of the range of the species. Aside from the
initial disturbance associated with installation and maintenance of a
pole-mounted above-ground powerline, the most significant stressor to
the dunes sagebrush lizard associated with powerlines is the increase
of predator perches within the shinnery oak dune habitat. Increased
predator perches may lead to increased predation by avian predators.
Individuals that exist adjacent to powerlines likely have a greater
risk of predation, and populations near powerlines may decline due to
greater predation rates.
However, more than 50 percent of the dunes sagebrush lizard's
habitat is not fragmented, and provides adequate core habitat for the
dunes sagebrush lizard to feed, breed, and shelter without the threat
of increased predation (Service 2012, p. 1). The Service concludes that
while powerlines may increase predation where they occur, the potential
impact of powerlines is very small in relation to the total lizard
habitat. The dunes sagebrush lizard has adequate core habitat available
throughout its range such that pipelines do not pose a significant
threat. Further, the New Mexico Conservation Agreements and Texas
Conservation Plan direct that new powerline construction be allowed
only outside of shinnery oak dune habitat.
Seismic Exploration--Seismic exploration utilizes artificially
induced shock waves to search for subsurface deposits of crude oil,
natural gas, and minerals, and to facilitate the location of
prospective drilling sites. Shock waves are typically produced by
vibratory mechanisms mounted on specialized trucks known as thumper
trucks that weigh approximately 60 tons. Seismic waves then reflect and
refract off subsurface rock formations and travel back to acoustic
receivers called geophones. The time it takes for seismic energy to
return aids in the estimation of the structure and stratigraphy of
subsurface formations (Pendleton et al. 2008, p. 1). Seismic
exploration is conducted prior to the development of oil and gas
fields, in order to determine the below surface availability of oil or
gas and refine the placement of well pads.
Seismic exploration for oil and gas has been a periodic, localized
activity that may have caused limited disturbance to the dunes
sagebrush lizard and its habitat. Stressors due to seismic exploration
occurred because heavy thumper trucks may have caused the
destabilization of dunes by driving through dune complexes (Painter
2004, p. 4). Seismic exploration may also have posed a direct threat to
the dunes sagebrush lizard. Dunes sagebrush lizards are dormant and
immobile during colder winter months (October through March). If
seismic exploration occurred during the winter months when dunes
sagebrush lizards were dormant beneath the soil surface and unable to
move, dunes sagebrush lizards may have been crushed. If the exploration
occurred during the nesting season, eggs that were buried below the
surface may also have been destroyed (Painter 2004, p. 4). Seismic
exploration poses a localized threat for a short period of time while
the trucks are crossing a given area. Because of mineral interest
ownership and targeted pay zones, once an area has been surveyed, it
will likely not be surveyed again.
Because seismic exploration is a localized activity that only
occurs once or twice in a given area, it is not anticipated to have a
significant impact on populations or the species as a whole. Seismic
exploration is a precursor to future oil and gas development in an
area, but it also directs development to the areas where drilling will
be most productive, and may limit the amount of surface disturbance.
The RMPA, New Mexico Conservation Agreements, and Texas Conservation
Plan restrict or limit seismic exploration within dunes sagebrush
lizard habitat. The Service concludes that seismic activities may pose
localized risk of mortality where they occur, but would not be expected
to cause habitat loss or population declines, since these activities
occur in only a very small part of the range. There is adequate habitat
available that is not affected by seismic development, and seismic
activities will not pose significant threats to the species, especially
since these activities will now be managed under the RMPA, New Mexico
Conservation Agreements, and Texas Conservation Plan, which provide
minimization of exposure.
Summary of Oil and Gas Activities--A 2007 report from the BLM (BLM
2007, pp. 3-16) states that reductions of dunes sagebrush lizard
population sizes in New Mexico are associated with surface disturbance
and removal of shinnery oak due to activities, such as oil and gas
development, and the creation of roads associated with new rights-of-
way. In areas with previously high levels of oil and gas development,
populations have declined or have been extirpated (Leavitt et al. 2011,
p. 7). If oil and gas development were projected to continue at the
rate they occurred in the past, the likelihood of extinction for the
dunes sagebrush lizard would be high. With the implementation of the
New Mexico Conservation Agreements and the Texas Conservation Plan, it
is not anticipated that oil and gas development will occur at the
historical rates in the dunes sagebrush lizard's shinnery oak dune
habitat. The New Mexico Conservation Agreements require that all
development remain outside of the shinnery oak dunes and corridors
between dune complexes. The Texas Conservation Plan's foundational
conservation measure is to limit development to areas outside of dunes
sagebrush lizard habitat, allow development only when avoidance is not
feasible, and impose severe limitations on, and require implementation
of offsetting conservation efforts for, such development. The New
Mexico Conservation Agreements and Texas Conservation Plan have habitat
restoration components that not only limit future development, but also
reclaim areas that are currently fragmented with oil and gas
development. Reclamation removes inactive caliche roads and pads, and
associated infrastructure (power lines, pipelines, tank batteries
etc.). The Service concludes that if all future oil and gas development
is placed outside of the dunes sagebrush lizard's shinnery oak dune
habitat, the species will have sufficient habitat to be viable into the
future. As described in the section on PECE, above, the Service has
concluded that there is sufficient certainty that the New Mexico
Conservation Agreements and Texas Conservation Plan will continue to be
implemented and will be effective to reduce the threat of habitat loss
to the lizard.
Wind and Solar Energy Development
Eastern New Mexico and western Texas are highly suitable areas for
wind and solar energy development. The infrastructure for wind and
solar energy would cause similar habitat fragmentation as that produced
by oil and gas development. Potential direct effects to the dunes
sagebrush lizard from wind energy development include physical
disturbance during construction and maintenance of a

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project, habitat loss, and habitat fragmentation associated with the
infrastructure of the project. A wind farm infrastructure typically
consists of: (1) The physical disturbance around a tower; the area of a
turbine workspace during construction (temporary) is usually a 45- to
60-m (150- to 200-ft) radius around the turbine and permanently a 15-m
(50-ft) radius; (2) Gravel access roads linking wind turbine strings to
each other and to existing roads; (3) Area for a concrete batch plant,
if required; and (4) Buildings housing electrical switchgear,
supervisory control and data acquisition central equipment, and
maintenance facilities. Additionally, vehicle traffic to turbines over
the life of the facility, expected to average 20 years, could pose a
threat similar to the infrastructure of oil and gas development to the
dunes sagebrush lizard. Alteration of habitat related to wind energy
development could influence habitat suitability for this species;
however, we are unaware of any studies at wind energy development sites
that have examined these effects.
There is no specific information available to determine if wind or
solar energy development is a threat to the dunes sagebrush lizard at
this time, though there is concern regarding potential effects if wind
and solar development were to occur in the species' habitat. More
information is necessary to determine if any effects will result from
specific alternative energy projects that will be located within dunes
sagebrush lizard habitat. However, the BLM's RMPA states that
applications to permit either solar or wind energy on public land
within the RMPA planning area will not be approved unless the applicant
can demonstrate, using peer-reviewed science, that there will be no
negative impacts to dunes sagebrush lizards. Also, the New Mexico
Conservation Agreements limit alternative energy to areas outside of
dunes sagebrush lizard habitat. And while the Texas Conservation Plan
does not specifically include a conservation measure managing wind
development, it does limit all development activities in the dunes
sagebrush lizard's habitat to no more than one percent of that habitat
in the first 3 years.
Off-Highway Vehicle (OHV) Use
An OHV is any motorized vehicle capable of, or designated for,
travel on or immediately over land, water, or other natural terrain.
This includes motorcycles and off-highway motor bikes, all-terrain
vehicles, dune buggies, snowmobiles, most four-wheel-drive automobiles,
and any other civilian vehicle specifically designed for off-road
travel (Ouren et al. 2007, p. 4). Extensive use of OHVs can cause soil
compaction, reduce plant cover, and degrade habitat (Ouren et al. 2007,
p. 4), causing the loss of basic needs including habitat for foraging,
breeding, nesting, predator avoidance, and thermoregulation for lizard
species (Jaeger et al. 2005, p. 329; Ingelfinger and Anderson 2004, p.
385; Delgado-Garcia et al. 2007, p. 2949; Ballesteros-Barrera et al.
2007, p. 736). Research in other dune systems has found that, in areas
where plant cover is reduced, there are greater rates of erosion that
led to dune destabilization. Routes used by OHVs formed mazes through
large areas of dunes, fragmenting the habitat and reducing habitat
connectivity at a landscape level (Ouren et al. 2007, p. 5). Studies on
other lizard species have found that OHV travel also causes increased
mortality due to lizard collisions with the vehicles themselves
(Delgado-Garcia et al. 2007, p. 2949).
The presence of OHV pathways within dunes sagebrush lizard's
habitat led researchers to believe that high levels of OHV activities
were the cause for population losses in Texas (Laurencio et al. 2007,
p. 10), but that is likely not the primary cause of extirpations in New
Mexico (Painter 2004, p. 5). Nevertheless, OHV use has been a factor
affecting the species within localized areas within the dunes sagebrush
lizard's range. For example, on BLM land in New Mexico, established and
planned OHV areas, such as the Square Lake Dune Complex and the
Mescalero Sands North Dune OHV Area, are adjacent to, or within,
habitat historically occupied by the dunes sagebrush lizard. These OHV
areas were established in order to concentrate OHV within designated
areas. The OHV use planned for the Square Lake Dune Complex is limited
to existing roads, trails, and unvegetated dunes (BLM 2007, p. 4.45).
This area is currently being used by OHVs, and BLM plans to formally
designate this area for OHV use.
The Mescalero Sands North Dune OHV Area is considered an open area
of more than 243 ha (600 ac), where vehicles are not restricted to
designated trails (BLM 2007, p. 4.45), although this OHV area was
historically occupied by dunes sagebrush lizards (Fitzgerald et al.
1997, Appendix 1). Authorized OHV activities have degraded shinnery oak
dunes, potentially crushed dunes sagebrush lizards, and introduced weed
species within the otherwise open dune blowouts. At the Mescalero Sands
OHV area, dunes have multiple OHV trails, exposed shinnery oak roots,
and erosion. In 2011, BLM surveyed this area and did not find dunes
sagebrush lizards (BLM 2011, p. 6).
In the comments provided, BLM states that OHV activity drops off
during the months of June through September, so lizards may not be
exposed to this activity during the nesting season at intense rates.
Off-highway vehicle use is not considered to be a significant threat to
the species as a whole. We conclude that OHV use has been a localized
threat with potential impacts to individual dunes sagebrush lizards and
nests. Because OHV use has been a localized threat, it may have had a
significant impact on populations, but not the species as a whole. The
New Mexico Conservation Agreements and Texas Conservation Plan now
restrict or limit OHV use within dunes sagebrush lizard habitat.
Further, the BLM RMPA restricts off-road activities to just existing
roads and trails and to the designated OHV areas.
Shinnery Oak Removal
Historically, shinnery oak was commonly removed for the purpose of
clearing for agriculture and increasing forage for grazing. Shinnery
oak is toxic to cattle when it first produces leaves in the spring, and
it also competes with more palatable grasses and forbs for water and
nutrients (Peterson and Boyd 1998, p. 8). Shinnery oak is also managed
for the control of boll weevil (Anthonomus grandis), which destroys
cotton crops. Boll weevils overwinter in areas where large amounts of
leaf litter accumulate. Fire is used to remove leaf litter, and then
tebuthiuron, an herbicide, is used to remove shinnery oak (Plains
Cotton Growers 1998, pp. 2-3). Over 40,000 ha (100,000 ac) of shinnery
oak in New Mexico and 400,000 ha (1,000,000 ac) of shinnery oak in
Texas have been lost due to the tebuthiuron treatments and other
herbicides (Peterson and Boyd 1998, p. 2).
A 5-year study was conducted to determine the effects of
tebuthiuron application on the dunes sagebrush lizard. This study
documented that dunes sagebrush lizards were absent at 50 percent of
the previously occupied sites where treatments had occurred (Painter et
al. 1999, p. 2). Shinnery oak removal results in dramatic reductions
and extirpations of dunes sagebrush lizards (Snell et al. 1997, p. 8).
For example, the extirpation of dunes sagebrush lizards was repeatedly
confirmed by Snell et al. (1997, p. 1) from areas that were treated
with herbicides to remove shinnery oak. Dunes sagebrush lizard numbers

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dropped 70 to 94 percent in areas that were chemically treated,
compared to adjacent untreated plots. Some plots experienced 100
percent population loss in areas treated with tebuthiuron. Painter et
al. (1999, p. 38) estimated that about 24 percent of the total dunes
sagebrush lizard habitat in New Mexico had been eliminated by 1999 due
to herbicide treatment. In 2011, BLM surveyed some of the areas that
were sprayed between 1969 and 1992, and found between one and four
individual dunes sagebrush lizards at seven of the eight sites surveyed
(BLM 2011, p. 6). Shinnery oak was not completely eradicated from these
sites, and treated areas all had shinnery oak dune habitat present.
Habitat loss and dunes sagebrush lizard declines are not linked to
the actual application of tebuthiuron, but rather to the long-term
effects associated with the removal of shinnery oak habitat (Snell et
al. 1997, p. 3). Herbicide treatment removes or reduces natural
shinnery oak vegetation and creates smaller habitat patches rather than
naturally occurring large expanses of shinnery oak. Habitat in which
shinnery oak is removed with Tebuthiuron fails to meet the basic needs
of the dunes sagebrush lizard, including foraging, breeding, nesting,
predator avoidance, and thermoregulation. Habitat fragmentation has
caused and will continue to cause inaccessibility to habitat, mates,
and prey that could reduce the population size; threaten population
persistence; and potentially cause local extirpations of dunes
sagebrush lizards.
On BLM lands, the RMPA states that tebuthiuron may only be applied
in shinnery oak habitat if there is a 500-m (1,600-ft) buffer around
dunes, and that no chemical treatments should occur in suitable or
occupied dunes sagebrush lizard habitat (BLM 2007, p. 4.22). The New
Mexico Conservation Agreements and Texas Conservation Plan restrict or
limit tebuthiuron application to areas outside of dunes sagebrush
lizard habitat (out of the dunes and corridors between dunes). In 2011,
the NRCS finalized Technical Note 53 that limits the application of
tebuthiuron to areas outside of shinnery oak dunes in New Mexico.
We believe that the removal of shinnery oak with tebuthiuron was
historically a significant threat to the dunes sagebrush lizard
throughout its range. NRCS Technical Note 53, the New Mexico
Conservation Agreements, and Texas Conservation Plan all restrict or
limit the application of tebuthiuron within dunes sagebrush lizard
habitat. Because of these agreements, the Service concludes that
tebuthiuron treatment of shinnery oak dune habitat will not continue
within the range of the dunes sagebrush lizard, or if so, it will be at
a rate much less than that of historical application. Accordingly, we
conclude that the threat associated with removal of shinnery oak with
tebuthiuron has been reduced significantly, compared to our previous
projections in our proposed rule.
Grazing
As discussed above, removal of shinnery oak to improve rangelands
removes habitat for the dunes sagebrush lizard; however, there may also
be direct impacts of grazing on dunes sagebrush lizards. While there
has been no specific research regarding the impacts of grazing on the
dunes sagebrush lizard and its habitat, dunes sagebrush lizards have
been found in areas that are moderately grazed (Painter et al. 1999, p.
32). In shinnery oak dune habitat, high densities of livestock can lead
to overutilization, and result in reduced ground cover, increased
annual grasses and forbs, decreased perennial grasses, and increased
erosion (Painter et al. 1999, p. 32). These conditions can be adverse
for the dunes sagebrush lizard. Research has shown that high levels of
grazing removes grasses and forbs, causes soil compaction, increases
bare ground, and reduces water infiltration. These conditions could
alter dune structure and decrease vegetation availability for foraging,
mating, and predator avoidance (Smith et al. 1996, p. 1307; Castellano
and Valone 2006, p. 87). While it is clear from this discussion that
shinnery oak removal to improve rangeland conditions is a threat to the
species, the direct impact of grazing on dunes sagebrush lizards is
unknown at this time. The New Mexico Conservation Agreements include
conservation measures that are focused on increasing lesser prairie-
chicken habitat, and decreasing the impacts that may occur from
grazing. Though we have no information that grazing has a direct impact
on the dunes sagebrush lizard, the conservation measures in place for
the lesser prairie-chicken will reduce any potential habitat threat
that grazing may have. Sixty-nine percent, or 151,083 ha (373,335 ac),
of dunes sagebrush lizard habitat in New Mexico is enrolled in either
the CCA or CCAA for ranching in New Mexico. Large ranches in New Mexico
and Texas provide areas of intact habitat with little or no
fragmentation that benefit the dunes sagebrush lizard by creating
habitat corridors and core habitat. These areas are necessary for the
persistence of the species into the future.
Climate Change and Drought
Our analyses under the Act include consideration of ongoing and
projected changes in climate. The terms ``climate'' and ``climate
change'' are defined by the Intergovernmental Panel on Climate Change
(IPCC). The term ``climate'' refers to the mean and variability of
different types of weather conditions over time, with 30 years being a
typical period for such measurements, although shorter or longer
periods also may be used (IPCC 2007a, p. 78). The term ``climate
change'' thus refers to a change in the mean or variability of one or
more measures of climate (e.g., temperature or precipitation) that
persists for an extended period, typically decades or longer, whether
the change is due to natural variability, human activity, or both (IPCC
2007a, p. 78).
Scientific measurements spanning several decades demonstrate that
changes in climate are occurring, and that the rate of change has been
faster since the 1950s. Examples include warming of the global climate
system, and substantial increases in precipitation in some regions of
the world and decreases in other regions (IPCC 2007a, p. 30; Solomon et
al. 2007, pp. 35-54, 82-85). Results of scientific analyses presented
by the IPCC show that most of the observed increase in global average
temperature since the mid-20th century cannot be explained by natural
variability in climate, and is ``very likely'' (defined by the IPCC as
90 percent or higher probability) due to the observed increase in
greenhouse gas concentrations in the atmosphere as a result of human
activities, particularly carbon dioxide emissions from use of fossil
fuels (IPCC 2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al.
2007, pp. 21-35). Further confirmation of the role of greenhouse gases
comes from analyses by Huber and Knutti (2011, p. 4), who concluded it
is extremely likely that approximately 75 percent of global warming
since 1950 has been caused by human activities.
Scientists use a variety of climate models, which include
consideration of natural processes and variability, as well as various
scenarios of potential levels and timing of greenhouse gas emissions,
to evaluate the causes of changes already observed and to project
future changes in temperature and other climate conditions (e.g., Meehl
et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et
al. 2011, pp. 527, 529). All combinations of models and emissions
scenarios yield very similar projections of increases in the most
common measure of climate change, average global surface temperature

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(commonly known as global warming), until about 2030. Although
projections of the magnitude and rate of warming differ after about
2030, the overall trajectory of all the projections is one of increased
global warming through the end of this century, even for the
projections based on scenarios that assume that greenhouse gas
emissions will stabilize or decline. Thus, there is strong scientific
support for projections that warming will continue through the 21st
century, and that the magnitude and rate of change will be influenced
substantially by the extent of greenhouse gas emissions (IPCC 2007a,
pp. 44-45; Meehl et al. 2007, pp. 760-764 and 797-811; Ganguly et al.
2009, pp. 15555-15558; Prinn et al. 2011, pp. 527, 529).
Various changes in climate may have direct or indirect effects on
species and their habitats. These effects may be positive, neutral, or
negative, and they may change over time, depending on the species and
other relevant considerations, such as interactions of climate with
other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-
19). Identifying likely effects often involves aspects of climate
change vulnerability analysis. Vulnerability refers to the degree to
which a species (or system) is susceptible to, and unable to cope with,
adverse effects of climate change, including climate variability and
extremes. Vulnerability is a function of the type, magnitude, and rate
of climate change and variation to which a species is exposed, its
sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also
Glick et al. 2011, pp. 19-22). There is no single method for conducting
such analyses that applies to all situations (Glick et al. 2011, p. 3).
We use our expert judgment and appropriate analytical approaches to
weigh relevant information, including uncertainty, in our consideration
of various aspects of climate change.
Globally, it has been predicted that climate change will cause a
decline in lizard populations, with an estimated 40 percent of lizard
populations becoming extinct by 2080 (Huey et al. 2010, p. 832). In a
recent study in Mexico, 12 percent of 200 lizard populations went
extinct due to the magnitude of warming in the spring (Huey et al.
2010, p. 832). For the lizard species studied, warming caused the
lizards to avoid activities such as foraging or reproducing. In order
to avoid becoming overheated, the lizards remained in cooler refuges.
This research has shown evidence of actual extinctions of local
populations linked to changes in climate in Sceloporus lizards (the
genus of the dunes sagebrush lizard) (Sinervo et al. 2010, p. 894).
There is no information regarding the susceptibility of dunes sagebrush
lizard populations, in particular, to changes in climate. However,
below we briefly discuss potential impacts on dunes sagebrush lizard
habitat.
The predicted changes in climate in the desert Southwest include
higher temperatures and less rainfall, and changes in storm frequency
and severity (Seager et al. 2007, p. 1183; Saunders et al. 2008, p. 5).
Higher temperatures and lower rainfall, as predicted by various models
for the southeastern part of New Mexico, could manifest as further
changes in the plant community (Seager et al. 2007, p. 1183). These
increased temperatures could convert shinnery oak vegetation
communities to communities with species such as yucca (Yucca elata),
mesquite, and cacti (Family Cactacea). However, the climate models for
the Southwest are not specific to the shinnery oak dune habitat, and
potential impacts to the habitat are speculative.
Last year (2011) was one of the driest years on record, and
shinnery oak did not leaf out for many months (BLM 2011, p. 10).
However, shinnery oak is drought tolerant, and has survived previous
periods of intense drought, including the long-term drought during the
1950s. Long-term drought may affect leaf production during dry years,
reduce the fitness of individual patches of oak; however, based on its
ability to persist through previous intense drought, shinnery oak may
be more resilient to the effects of climate change. Because the
response of shinnery oak to changes in climate is speculative, the
extent or magnitude of impacts to shinnery oak as a result of future
climate change is not known at this time.
If climate change results in additional habitat fragmentation,
current areas of continuous core habitat will be more important to the
species. It is anticipated that large contiguous stands of shinnery oak
will be necessary for the system to be resilient to climate change.
Larger habitat patches provide larger interior habitat with greater
shade and cover, which will help the lizard better cope with any
increasing temperatures. Further, good core habitat provides better
resources of vegetation and prey, and has less edge habitat, which
reduces risk of predation. Having larger patches intact stabilizes the
size of a population, decreasing the probability of local extinctions,
and will better allow populations to withstand the stress of climate
change.
Though there are no immediate plans in place to remediate the
potential climate change impacts on the dunes sagebrush lizard, there
are efforts to decrease fragmentation and potentially increase
available habitat. The RMPA, New Mexico Conservation Agreements, and
Texas Conservation Plan will limit and reduce habitat fragmentation
within dunes sagebrush lizard habitat, and leave core habitat intact.
The New Mexico Conservation Agreements address the dunes sagebrush
lizard's potential response to climate change, while meeting multiple
objectives, as described in the Service's September 2010 Rising to the
Urgent Challenge: Strategic Plan for Responding to Accelerating Climate
Change. Several objectives of this plan focus on reducing nonclimate
change stressors to reduce the overall cumulative impacts of all
stressors, and thereby reduce the number of factors limiting the
continued survival of the species. The New Mexico Conservation
Agreements direct companies to develop outside of suitable dune
complexes and corridors linking those complexes. Another conservation
measure calls for reclamation and restoration of degraded habitat. The
BLM has 10,117 ha (25,000 ac) of mostly contiguous dunes sagebrush
lizard habitat in their designated Area of Critical Environmental
Concern set aside for the dunes sagebrush lizard and the lesser
prairie-chicken. Also, BLM has 57,870 ha (132,590 ac) of habitat
unleased for minerals, which also is not available for future leasing.
Actions from the New Mexico Conservation Agreements and BLM public
lands management result in a network of larger contiguous blocks of
suitable habitat to facilitate movements in response to climate change
and also create large refugia for the dunes sagebrush lizard and its
habitat.
Because the delineated habitat for the dunes sagebrush lizard is
oriented in a north to south band of shinnery oak dunes, it is not
expected that all of the range will be equally impacted by climate
change. If habitat impacts are realized in portions of the range of the
lizard, climate change considerations can be included when deciding
which areas are priorities for reclamation and habitat restoration, to
offset negative effects of a changing climate. The agreements can also
facilitate and fund mesquite removal within shinnery oak dunes as a
potential result of climate change.
As is the case with all stressors that we assess, even if we
conclude that a species may be affected in a negative way by one or
more climate-related impacts, it does not necessarily follow that the
species meets the definition of an ``endangered species'' or a
``threatened species'' under the Act. We

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do not have climate models specific for the shinnery oak dunes habitat
of the lizard, but when considering more general climate models for the
Southwest, it is likely that the lizard will face a warmer, drier
climate in the future than it has in the past. However, the adaptive
management provided for in the New Mexico Conservation Agreements and
Texas Conservation Plan directs that knowledge regarding climate-
associated changes in environmental conditions will be used to help
devise appropriate conservation measures to meet changing needs in the
habitat, including additional habitat reclamation and restoration to
provide larger refugia for the lizard.
Mesquite Encroachment
Though honey mesquite (Prosopis glandulosa) is a native plant in
the southwestern United States, it has recently expanded from drainages
and upland slopes, and is now common in grasslands (Golubov et al.
1999, p. 955). Honey mesquite is known to be an aggressive invader, and
encroachment into shinnery oak dune habitat has recently been noted.
Honey mesquite's invasion into shinnery oak dunes may degrade habitat
for the dunes sagebrush lizards due to a variety of factors. Mesquite
can spread quickly, and will fill in open blowouts that are a necessary
component to dunes sagebrush lizard habitat. Mesquite grows taller than
shinnery oak, and can serve as predator perches for shrikes and
raptors.
Much of the habitat in Texas has mesquite encroachment into the
shinnery oak dunes, as do some areas in New Mexico. The amount of
shinnery oak dune habitat with mesquite encroachment has not yet been
quantified, so the scope of the threat is unknown. The reduction of
mesquite encroachment into shinnery oak dune habitat is a priority for
the New Mexico Conservation Agreements and Texas Conservation Plan.
Though mesquite encroachment may not be totally controlled, areas where
it is a problem can be identified and prioritized for habitat
restoration efforts.
Even though the scope of mesquite encroachment as a threat is not
completely known, the RMPA, New Mexico Conservation Agreements, and
Texas Conservation Plan all have conservation or mitigation measures in
place to control it as necessary. The Service believes that the funding
available through BLM, the New Mexico Conservation Agreements'
Conservation Fund, and the Texas Conservation Plan's Mitigation Fund,
ensures that the treatment of mesquite encroachment is likely to occur
throughout the range of the dunes sagebrush lizard. Because this
problem has been identified as a priority for restoration efforts, the
Service concludes that this threat is being addressed and alleviated,
and can be minimized through conservation efforts. Without the efforts
of the New Mexico Conservation Agreements, Texas Conservation Plan, and
BLM's Restore New Mexico, mesquite encroachment would likely be
considered a significant threat to the dunes sagebrush lizard. However,
with the conservation efforts now in place, the Service concludes that
mesquite encroachment does not pose a significant threat to the dunes
sagebrush lizard, either now or in the future.
Summary of Factor A
Habitat specialists with limited geographic ranges, such as the
dunes sagebrush lizard, are more vulnerable to habitat alterations than
wide-ranging habitat generalists (Ballesteros-Barrera et al. 2007, p.
733). Habitat fragmentation and the overall reduction of shinnery oak
dune habitat has affected survivorship, growth, and reproductive
ability by increasing edge habitat and decreasing available cover. This
led to smaller populations and decreased connectivity between
populations (Chan et al. 2008, p. 9). The size of the habitat patches
and suitable dune complexes will influence the probability of
individual habitat patches being eliminated in this dynamic system. It
is important to maintain connectivity between shinnery oak dune patches
in each of the geographic areas across the dunes sagebrush lizard's
known range (Chan et al. 2008, p. 9).
Historical removal of shinnery oak within occupied habitat posed a
serious threat by generating or increasing a variety of stressors for
the dunes sagebrush lizard, a species that depends on a very
specialized dynamic system to survive. Shinnery oak stabilizes dunes in
the short term, but overall the dunes are dynamic and slowly shifting
across the landscape. Without shinnery oak, sands are not held in
place, and the entire dune community is susceptible to wind erosion
(Muhs and Holliday 1995, p. 198), which can threaten the long-term
persistence of the species.
Due to the implementation of the New Mexico Conservation
Agreements, the Texas Conservation Plan, and the RMPA, the Service does
not anticipate future development to mirror the historical development
that has already occurred. BLM's RMPA, the New Mexico Conservation
Agreements, and the Texas Conservation Plan have identified the threats
to this species, and provide conservation measures to alleviate or
lessen those threats, to restore degraded habitat, and to reduce
fragmentation or restore connectivity. The RMPA was developed to
address sensitive species conservation concerns and to establish the
minimum requirements that will be applied to all future Federal
activities covered by the RMPA for both the dunes sagebrush lizard and
the lesser prairie chicken (Tympanuchus pallidicinctus). Within New
Mexico, 52 percent of the range of the dunes sagebrush lizard habitat
(and 68 percent of the mineral ownership) are federally owned and are
under BLM lease stipulations and the RMPA.
The RMPA, New Mexico Conservation Agreements, and Texas
Conservation Plan all restrict or limit development within the dunes
sagebrush lizard's habitat. These restrictions and limitations apply to
development activities related to oil and gas exploration, wind and
solar power development, OHV use, grazing, and mesquite control. The
majority of the delineated dunes sagebrush lizard habitat in New Mexico
and Texas is covered by the RMPA, enrolled in the New Mexico
Conservation Agreements, or enrolled in the Texas Conservation Plan.
Also, 53,400 ha (132,590 ac) of dunes sagebrush lizard habitat is
unleased, and has been permanently removed from future leasing in New
Mexico. In New Mexico, 95 percent (211,703 ha (523,130 ac)) of dunes
sagebrush lizard habitat is subject to conservation measures. In Texas,
71 percent (56,105 ha (138,640 ac)) is enrolled in the Texas
Conservation Plan. Because of these agreements, the RMPA, and the
habitat that has been removed from leasing, the Service concludes that
oil and gas development will not continue within dunes sagebrush lizard
habitat at historical rates. These agreements also provide funding to
remove pads and roads and reduce habitat fragmentation. As part of the
New Mexico Conservation Agreements' and BLM's efforts, hundreds of well
pads, roads, and associated oil and gas infrastructure have been
reclaimed within the lizard's range in New Mexico.
The discontinuation of habitat loss and fragmentation, and the
restoration of already fragmented habitat, will have the benefit of
decreasing edge habitat and increasing interior habitat. Individuals
that live within core habitat will have increased resources, because
the interior habitat provides adequate shade, cover, and prey. The
increased vegetation and cover will lead to increased survivorship,
growth, and reproduction, and also to decreased predation by species
that are near roads

[[Page 36895]]

and on power lines. Individuals within larger habitat patches, which
have smaller proportions of edge habitat, have a decreased chance of
going extinct, because they have a greater barrier between the core
patch and the habitat disturbance. Leaving an occupied patch intact
stabilizes the size of a population, decreasing the probability of
local extinctions and increasing the stability of the population
(Dramsted et al. 1996, p. 23; Jaeger et al. 2005, p. 329; Ingelfinger
and Anderson 2004, p. 385; Delgado-Garcia et al. 2007, p. 2949;
Ballesteros-Barrera et al. 2007, p. 736; Sias and Snell 1996, p. 28;
Endriss et al. 2007, p. 320).
The Service concludes that if future development and activities
involving oil and gas exploration, wind and solar power development,
OHV use, and grazing are placed outside of the dunes sagebrush lizard's
habitat, and if tebuthiuron treatments are limited to areas outside of
habitat, the species currently has adequate habitat to persist into the
future. Currently, greater than 50 percent of the dunes sagebrush
lizard's habitat is unfragmented and provides large areas of core
shinnery oak dunes. These large core areas, along with the adaptive
management provisions of the conservation agreements, will provide
refugia to help maintain adequate habitat for the lizard with changing
climatic conditions. If the RMPA and these agreements were not in place
throughout the range of the species, the Service anticipates that the
threats of oil and gas development and shinnery oak removal would
continue at the levels of that in the past. However, with the
conservation agreements, the current habitat conditions will be
maintained or improved, such that we no longer find this factor to be a
threat, either now or in the future.

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

The dunes sagebrush lizard is not a commercially valuable species,
but could be increasingly sought by collectors due to its rarity.
However, scientific collecting is not known to represent a significant
threat to populations. Furthermore, the State of New Mexico requires
scientific collecting and research permits for the dunes sagebrush
lizard (NMDGF 1978, p. 7; TX House Bill 12, 2007). Therefore, we do not
consider overutilization to be a significant threat, either currently
or in the future.

C. Disease or Predation

Disease and Parasites
There are no studies on the impacts of disease or parasitism on
dunes sagebrush lizards, but studies have been conducted on close
relatives within the genus Sceloporus. Sceloporus lizards infected with
malaria have reduced volumes of red blood cells, reduced hemoglobin
(the protein that carries oxygen in the blood), impaired physical
stamina, reduced fat stores, reduced number of offspring, and smaller
testes (Klukowski and Nelson 2001, p. 289). The incidence of malaria in
Sceloporus lizards is dependent on the lizard's age, size, genetic
background, and gender (Klukowski and Nelson 2001, p. 289). Other
lizards in the genus Sceloporus have parasitic helminthes (a type of
parasitic worm) in their gut. These helminthes have not been found in
high numbers in dunes sagebrush lizards (Goldberg et al. 1995, p. 190).
In general, other stressors in the environment, such as habitat
degradation and pollution, may weaken species' immune systems and make
them more susceptible to disease and parasites (Whitfield et al. 2000,
p. 657). Research specific to the dunes sagebrush lizard has not been
conducted to determine if they have been infected with malaria or if
they have parasitic helminthes. At this point, we have no information
that disease or parasites are threats to the dunes sagebrush lizard.
Predation
During Hill and Fitzgerald's (2007) nesting ecology study, 25
percent of radio-tracked female dunes sagebrush lizards were eaten by
coachwhips (Masticophis flagellum). Coachwhips are large, swift,
diurnal snakes that feed primarily on lizard species. Another predator,
the loggerhead shrike (Lanius ludovicianus), is found throughout the
range of the dunes sagebrush lizard. Loggerhead shrikes are birds that
occur in many habitats, from remote deserts to suburban areas. These
small predators perch on trees, shrubs, poles, fences, and utility
wires, and swoop down to capture and impale prey (Rappole 2000, p.
163). Increased perches and increased edge effects could lead to
increased levels of predation that would affect the dunes sagebrush
lizard. A study of flat-tailed horned lizards found that shrike counts
are higher along edge habitats than in interior habitat patches (Barrow
et al. 2006, p. 492). Areas with greater development are, therefore,
more likely to have higher incidence of shrike predation than areas
that are not fragmented.
Power line grids are located throughout oil and gas developments.
The New Mexico State Land Office does not have a database of the power
lines within the shinnery oak habitat and range of the dunes sagebrush
lizard. However, many well pad operations and power plants are
connected with a grid of transmission lines that are most dense in
areas of high development. The ongoing threat associated with power
lines and fences is that they provide perching habitat for predaceous
birds throughout the shinnery oak dunes. The conservation measures in
the New Mexico Conservation Agreements and Texas Conservation Plan will
minimize habitat disturbance, including powerlines in dunes sagebrush
lizard habitat. They provide that new powerlines and fences will not be
allowed on enrolled lands in dunes sagebrush lizard habitat. This will
limit and reduce habitat fragmentation and reduce perch sites for
shrikes. Moreover, over 50 percent of the dunes sagebrush lizard's
habitat remains unfragmented (Service 2012). We acknowledge that dunes
sagebrush lizards may be taken by shrikes at an increased rate in
developed areas, but conclude that the remaining unfragmented interior
habitat will have decreased predation pressure, and thus predation does
not pose a significant threat to the species as a whole now or in the
future.
Feral hogs are now found in 17 counties in New Mexico, including
all of the counties with dunes sagebrush lizards. Recently, feral hogs
have been found in the shinnery oak dune habitat (Carswell 2011, p. 1).
Feral hogs are voracious predators that have been found to eat great
numbers of small vertebrates. However, we have no information on the
effect of feral hogs on dunes sagebrush lizard populations. Through the
New Mexico Conservation Agreements, CEHMM and BLM are working with the
U.S. Department of Agriculture to find and eradicate feral hogs within
dunes sagebrush lizard habitat in New Mexico before the threat is fully
realized.
Summary of Factor C
There are likely impacts to individuals from predation. It is
expected that predation rates would be highest in developed areas that
provide more perch sites for shrikes. The new conservation measures
restricting and limiting development to areas outside of shinnery oak
dunes habitat will lessen the predation pressure in core habitats. We
also believe that there is adequate unfragmented core habitat within
the species range, and we would not expect increased predation pressure
in these

[[Page 36896]]

areas. Therefore, we conclude that disease or predation do not pose
significant threats to the dunes sagebrush lizard now or in the future.

D. The Inadequacy of Existing Regulatory Mechanisms

Under New Mexico's Wildlife Conservation Act, on January 24, 1995,
NMDGF listed the dunes sagebrush lizard as a group 2 Endangered Species
(Painter et al. 1999, p. 1). This listing affords the lizard protection
from take, but not from habitat destruction (NMDGF 1978, p. 9). The
dunes sagebrush lizard is not listed as endangered or threatened in the
State of Texas under either the Texas Parks and Wildlife Code or the
Texas Administrative Code (Texas Parks and Wildlife Department 1973, p.
1). We are not aware of any local laws or ordinances that protect the
dunes sagebrush lizard and its habitat in New Mexico or Texas.
Current regulations under State and local laws are not designed,
nor have provisions, to protect the dunes sagebrush lizard from habitat
loss. However, there are conservation measures that are enforced by the
BLM, under their RMP, that remove or alleviate threats on BLM land in
dunes sagebrush lizard habitat. The RMPA established BLM's internal
guidance for managing these species in southeastern New Mexico. Along
with other measures, the RMPA allows BLM to place oil and gas
development up to 200 m (650 ft) outside of dunes sagebrush lizard
habitat, and prioritizes the reclamation of nonfunctioning oilfield
development in areas that will most benefit the dunes sagebrush lizard.
The RMPA also prohibits herbicide treatment in dunes sagebrush lizard
habitat. In accordance with the RMPA, BLM identified 53,657 ha (132,590
ac) that are currently unleased dunes sagebrush lizard habitat that
will be closed to future leasing. Since 2008, the RMPA has been used to
guide development within the planning area, which includes all BLM land
within the range of the dunes sagebrush lizard in New Mexico. The RMPA
provides baseline conservation measures, and removes habitat from
leasing to prevent the continued loss of dunes sagebrush lizard habitat
on Federal lands in New Mexico. BLM has also removed over 172 ha (425
ac) of caliche pads and roads, along with associated oil and gas
infrastructure. At the time of our proposed rule, we did not have a
full understanding of how BLM implements the RMPA. BLM has now provided
detailed information regarding the processes involved in implementing
the RMPA. For instance, no exceptions have been made to the
conservation measure that keeps development outside of dunes sagebrush
lizard habitat, unlike our assumptions in the proposal. The RMPA
provides the foundational requirements for any activities located
within the delineated habitat for the dunes sagebrush lizard on BLM
lands, and all staff are aware of these requirements.
In the proposal, the Service understood statements within the RMPA
such as ``may move development out of dunes sagebrush lizard habitat up
to 200 meters'' to mean that this was optional and potentially
unenforceable. We have since received detailed comments from BLM
regarding the implementation of the RMPA that have changed our
understanding of the RMPA. Based on BLM's comments, the Service now
understands that the statement ``may move development up to 200 meters
outside of dunes sagebrush lizard habitat'' authorizes BLM to move
development outside of dunes without further analysis. If BLM has to
move development greater than 200 meters, further analysis and
documentation must first occur. The BLM has not issued exceptions to
this conservation measure, and exceptions to the conservation measures
are very difficult to obtain.
BLM staff from all divisions meet weekly to discuss new
applications to drill, or other activities that may affect special
status species including the dunes sagebrush lizard. When a well
location is proposed near dunes sagebrush lizard habitat, resource
specialists accompany the permitting agent to the proposed location to
ensure that the well is placed outside of shinnery oak dune habitat.
BLM does not treat the RMPA as discretionary guidance, but instead
implements it with all activities in dunes sagebrush lizard and lesser
prairie-chicken habitat. The regulations pertaining to resource
management practices are at 40 CFR 1500, which discusses the overview
of Federal land management, while regulations at 40 CFR 1600 discuss
the specifics about implementation of the National Environmental Policy
Act and Federal Land Policy and Management Act. The RMPA provides a
standard to consistently guide the protection of the dunes sagebrush
lizard, and reduce or eliminate the threats to the species and its
habitat on BLM lands in New Mexico. Fifty-four percent of the dunes
sagebrush lizard's entire range is covered by BLM's RMPA, and 24
percent (53,657 ha (132,590 ac)) of the habitat in New Mexico is
currently unleased and has been removed from future leasing by the
RMPA.
In summary, we conclude that inadequacy of existing regulatory
mechanisms does not pose a threat to the dunes sagebrush lizard.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Exposure to Pollutants
Though few studies have been conducted to determine the full
effects of pollutants on reptiles, there is conclusive evidence of some
adverse impacts to lizard species (Whitfield et al. 2000, p. 657). Sias
and Snell (1998) studied the effects of oil and gas wells on dunes
sagebrush lizard abundance from 1995 to 1997. The results of their
research showed a strong negative relationship between dunes sagebrush
lizard population density and proximity to well pads. Specifically,
they found a 39 percent decrease in the abundance of dunes sagebrush
lizards within 0 to 80 m (0 to 260 ft) of wells. Sias and Snell (1996,
p. 30) believe that oil and gas extraction resulted in a reduction in
abundance of dunes sagebrush lizards as a result of: (1) Direct habitat
loss due to construction of roads and well pads (as discussed above in
Factor A); (2) poisoning of dunes sagebrush lizards from oil spills,
hydrogen sulfide gas emissions, and exposure to chemicals and other
toxins in the vicinity of oil and gas wells; (3) mortality caused by
increased traffic; and (4) giving a competitor of the dunes sagebrush
lizard a competitive advantage (see ``Competition'' section below).
During petroleum extraction, hydrogen sulfide is removed from the
petroleum and released into the air, where it remains for up to one
day. Hydrogen sulfide is heavier than air and tends to sink to the
ground, where it remains until it is neutralized (Kraft 2010, p. 1).
Hydrogen sulfide is a highly toxic gas that is the dominant reduced
(unoxygenated) sulfur gas in oilfields (Tarver and Dasgupta 1997, p.
3669). Measurements of hydrogen sulfide have been taken at a site near
Loco Hills, New Mexico (40 km (25 mi) east of Artesia), near historical
dunes sagebrush lizard sites. Air concentrations of hydrogen sulfide as
high as 33 parts per million (ppm) were recorded for a period of 32
minutes in the Loco Hills area of New Mexico (Lusk and Kraft 2010, p.
19). Lusk and Kraft (2010) recommend the adoption of interim air
quality standards for the protection of wildlife at 1 ppm, the
requirement of routine monitoring of hydrogen sulfide to identify
sources in areas where ambient concentrations exceed 1 ppm, and the
reduction of

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emissions to meet these wildlife conservation goals.
Most of the sulfur that is emitted by oil and gas infrastructure
ends up in the soil (Tarver and Dasgupta 1997, p. 3674). Surface soil
tests in active oilfields in Texas found sulfate (an oxygenated form of
sulfur) levels in the soil to range between 20 to 200 ppm near active
facilities, as opposed to 1 ppm in similar soils not adjacent to oil
facilities (Tarver and Dasgupta 1997, p. 3674). Dunes sagebrush lizards
dig just below the soil surface during hot parts of the day and at
night and would, therefore, be in direct contact with the sulfates in
the soil. Sulfates increase the anaerobic activities in the soil, make
the soil more acidic, and could cause protein and gene damage to
organisms, depending on the duration of exposure (Escher and Hermens
2002, p. 4203). Acidic soil is directly linked to small hatchling size
and slower running speed, which can influence survival and success
rates of juvenile lizards (Marco et al. 2005, p. 109).
The long-term impacts of oilfield pollutants to dunes sagebrush
lizard populations, fecundity, and survivorship are unknown. Oilfields
contain a variety of organic toxic pollutants including petroleum
hydrocarbons, polycyclic aromatic hydrocarbons (PAHs), phenanthrene,
fluoranthene, and benzo[a]anthracene. Two studies on the impacts of oil
and gas pollution to another sand-dwelling lizard, the Nidua fringe-
fingered lizard (Acanthodactylus scutellatus), a sand-dwelling species
from the Middle East, were conducted in the oilfields in Kuwait. Tissue
samples taken from both the fringe-fingered lizard and its insect prey
base (ants) found the PAH concentrations in the fringe-fingered lizard
and ant tissue increased with the exposure to the toxins. The levels of
PAHs in the fringe-fingered lizard and ant tissues were high enough to
affect the function of vital organs. Fringe-fingered lizards are not
able to remove the toxins from their system quickly, due to their slow
metabolic rate and simple enzyme system (Al-Hashem et al. 2007, p.
555). Additionally, the exposure to oilfield chemicals affected the
behavior and foraging time for the fringe-fingered lizard by altering
time of emergence and basking behavior (Al-Hashem et al. 2008, p. 589).
If dunes sagebrush lizards are exposed to this type of pollution,
we may expect physiological dysfunction, impaired foraging abilities,
increased mortality, and population declines. For this reason, we
believe the exposure to pollutants from oil and gas production may be a
factor affecting the survival of individuals and populations located
around oil and gas development. It is also likely that exposure to
pollutants in areas of development cannot be separated from the
cumulative effects of development as a whole. It is anticipated that
the conservation measures, restricting and limiting development to
areas outside of shinnery oak dunes habitat, are expected to limit the
dunes sagebrush lizard's exposure to pollutants.
Companies enrolled in the New Mexico Conservation Agreements and
Texas Conservation Plan have agreed to routine maintenance schedules to
reduce the risk of spills. In New Mexico, companies enrolled in the New
Mexico Conservation Agreements have agreed to an adaptive management
approach to reducing the risk of hydrogen sulfide exposure. The
conservation measure will determine areas of high hydrogen sulfide
risk, and will also determine the distance at which hydrogen sulfide is
a threat to the dunes sagebrush lizard. Then measures, such as alarms
or shut-off valves, will be put in place in the high-risk areas to
reduce the risk of exposure. Since over half of the dunes sagebrush
lizard's range is not fragmented, we conclude that there is adequate
core habitat available within the species' range to provide areas
without increased exposure to pollutants.
Competition
The side-blotched lizard and the prairie lizard (Sceloporus
consobrinus) are generalist lizard species found throughout the range
of the dunes sagebrush lizard. Researchers studying the dunes sagebrush
lizard have reported that the side-blotched lizard is a competitor for
resources with the dunes sagebrush lizard (Sena 1985, p. 13) and has
been observed directly competing for insect prey (Sias and Snell 1996,
p. 6). In areas where there are large dune blowouts in shinnery oak
dune complexes, the dominant lizard species is the dunes sagebrush
lizard. As the habitat becomes marginal with smaller dune blowouts
adjacent to shinnery oak flats or unsuitable habitat, there are greater
numbers of side-blotched lizards and fewer dunes sagebrush lizards. In
areas that have more habitat disturbance and greater edge effects,
there are also more side-blotched lizards than dunes sagebrush lizards
(Painter 2007, p. 2). The side-blotched lizard is the most abundant
lizard found in the same habitat as the dunes sagebrush lizard. The
side-blotched lizard uses more open, sandy substrate than the dunes
sagebrush lizard, which uses the vegetative cover provided by shinnery
oak. The side-blotched lizard also spends more time in the open sun and
more time foraging (Sartotrius et al. 2002, pp. 1972-1975). As a
generalist, the side-blotched lizard is not affected by habitat
disturbance and alteration in the way that dunes sagebrush lizard, a
habitat specialist, is affected (Sias and Snell 1996, p. 18; Painter et
al. 2007, p. 3). The side-blotched lizard may either out-compete the
dunes sagebrush lizard in these altered habitats, or is simply filling
a niche when the sites no longer support dunes sagebrush lizards. The
prairie lizard is often found in adjacent shinnery oak and mesquite
flats, and may thrive in areas where shinnery oak dunes no longer
occur.
Summary of Factor E
The Service concludes that there is sufficient certainty that the
commitment to place development outside of the dunes sagebrush lizard's
shinnery oak dune habitat will be implemented and will be effective.
Therefore, the risk of competition, and exposure to pollutants, will
only be localized stressors, and will not pose significant threats to
the species as a whole. Leaving large areas of unfragmented habitat
intact will decrease the risk of exposure to both pollutants and
competitors.

Cumulative Impacts

Some of the potential threats discussed in this finding could work
in concert with one another to cumulatively affect the dunes sagebrush
lizard to the point that they may, in combination, become significant
threats to the species, either now or in the future. However, we
conclude that the suite of conservation efforts in the RMPA, New Mexico
Conservation Agreements, and Texas Conservation Plan address and
alleviate all of the threats to the dunes sagebrush lizard adequately
for the species to continue to be viable into the future.

Determination

As required by the Act, we considered the five factors in assessing
whether the dunes sagebrush lizard meets the definition of a threatened
or endangered species. We examined the best scientific and commercial
information available regarding the past, present, and future threats
faced by the dunes sagebrush lizard. Based on our review of the best
available scientific and commercial information, we find that the
current and future threats are not of sufficient imminence, intensity,
or magnitude to indicate that the dunes sagebrush lizard is in danger
of extinction (endangered), or likely to become endangered within

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the foreseeable future (threatened), throughout all or a significant
portion of its range. Therefore, the dunes sagebrush lizard does not
meet the definition of a threatened or endangered species and we are
withdrawing the proposed rule to list the dunes sagebrush lizard as
endangered. Our rationale for this finding is outlined below.
The dunes sagebrush lizard is not in danger of extinction now
because it currently occurs in an area of sufficient size and
distribution that it is expected to be resilient to random natural
impacts. Further, its distribution encompasses the known genetic
diversity of the species such that current populations are
representative of the known diversity of the species. As such, the
species has not currently declined to the point that it is subject to
impacts from stochastic events that would result in a change in the
status of the species as a whole. In other words, if the species
continues to occur in its current distribution, we expect it will have
sufficient resiliency, redundancy, and representation to be viable now
and in the foreseeable future.
In our proposed rule, we identified several threats that
significantly impacted the status of the species. This was an
appropriate conclusion based on the best scientific and commercial
information available at that time. However, since that time,
significant ongoing and future conservation efforts, in combination
with new information on the status and distribution of the species,
have reduced the magnitude of potential impacts now and in the future
such that the species no longer meets the definition of an endangered
or threatened species.
In our proposed rule, we identified loss of habitat due to oil and
gas development and the treatment of shinnery oak dune habitat with
tebuthiuron as the most significant threats to the continued existence
of the dunes sagebrush lizard. Our conclusion was based on information
about past and current impacts to lizard habitat due to these
stressors, information about potential future development within lizard
habitat, and the lack of areas protected from these impacts.
Since the time of our proposed listing, there have been many
efforts to develop conservation measures for the dunes sagebrush lizard
in Texas, and substantial interest in the existing conservation plans
in New Mexico. Several conservation plans, including the New Mexico
Conservation Agreements, Texas Conservation Plan, and BLM's RMPA, put
in place conservation efforts that have been implemented by the States,
BLM, private landowners, and oil and gas companies, and have a high
level of certainty of continuing to be implemented in the future and of
being effective. These efforts have reduced or eliminated threats to
the dunes sagebrush lizard. When considered together, the area that has
been has been removed from oil and gas leasing, is enrolled in the New
Mexico Conservation Agreements, or is covered by BLM's RMPA amounts to
95 percent (211,703 ha (523,129 ac)) of the dunes sagebrush lizard's
habitat in New Mexico. Further, 71 percent (56,105 ha (138,640 ac)) of
the mapped dunes sagebrush lizard habitat in Texas has been enrolled in
the Texas Conservation Plan.
In New Mexico, conservation measures within the New Mexico
Conservation Agreements limit development to areas outside of the dunes
sagebrush lizard's shinnery oak dune habitat. In addition, the New
Mexico Conservation Agreements and BLM's Restore New Mexico Program
have conservation measures or mitigation measures that remove caliche
roads and pads, along with other nonfunctioning oil and gas
infrastructure. This measure creates additional habitat and reduces
fragmentation throughout the dunes sagebrush lizard range, enhancing
dunes sagebrush lizard habitat conservation through avoidance.
The Texas Conservation Plan also focuses on the avoidance of
activities within lizard habitat that would further degrade habitat,
reclamation of lizard habitat to reduce fragmentation, and, due to the
presence of mesquite, removal of mesquite that is encroaching into
shinnery oak dunes. If avoidance of lizard habitat cannot be
accomplished, the participants may adopt conservation measures that
minimize habitat impacts, and as a last resort, mitigate for the loss
of lizard habitat. The Texas Conservation Plan limits habitat loss to 1
percent of delineated dunes sagebrush lizard habitat within the first 3
years, with a total of 10 percent of the entire delineated habitat
allowed to be taken over the 30-year life of the plan. Even though the
Texas Conservation Plan allows for the loss of some dunes sagebrush
lizard habitat, no ground-disturbing activity can take place in
delineated dunes sagebrush lizard habitat until reclamation work has
successfully created dunes sagebrush lizard habitat elsewhere within
the range of the species.
The second most significant threat described in the proposed rule
was the rangewide application of tebuthiuron to reduce or kill shinnery
oak in dunes sagebrush lizard habitat. In 2011, the NRCS finalized
Technical Note 53, which states that no tebuthiuron treatments may
occur in shinnery oak dunes within the range of the dunes sagebrush
lizard in New Mexico. Also, the RMPA, New Mexico Conservation
Agreements, and Texas Conservation Plan all prohibit the application of
tebuthiuron on shinnery oak dunes.
Conservation measures that limit development and activity within
habitat are also in place to minimize impacts of other less significant
potential threats such as OHV, wind and solar development, predation by
nonnative species, and increased predation due to development.
We have a high degree of certainty that New Mexico Conservation
Agreements will continue to be implemented and that the Texas
Conservation Plan will be implemented. As summarized in the Ongoing and
Future Conservation Efforts section, above, we have determined that the
New Mexico Conservation Agreements have a high certainty of being
implemented. Our reasons for concluding that our level of certainty is
high are that the level of enrollment is high (over 83 percent of
lizard habitat is enrolled), the mechanism and authorities for
collecting funds are in place, the process for allocating funds to
support reclamation work and research in lizard habitat is in place,
the monitoring and documentation of compliance with the conservation
measures are in place, and monthly and annual reports are complete, and
all parties have the legal authorities to carry out their
responsibilities under the New Mexico Conservation Agreements.
Further, we have determined that the Texas Conservation Plan has
high certainty of implementation. The Service issued the permit to the
permittee on February 17, 2012. Since then, in a short time, the
permittee has enrolled significant acreages, collected funds from
current enrollees, and has created and set into motion a non-profit
organization to administer specific functions of the Texas Conservation
Plan, including but not limited to, outreach to attract more
participation. As of May 2012, 71 percent (56,105 ha (138,640 ac)) of
dunes sagebrush lizard habitat in Texas is enrolled in the Texas
Conservation Plan. Enrollees have collectively remitted approximately
$773,000 in participation fees into the Habitat Protection Fund
administered by the Texas Conservation Plan. These funds cannot be used
by the Texas Legislature for any other purpose. Additionally, some of
the same

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companies who are enrolled in the New Mexico Conservation Agreements
have also either enrolled or committed to enroll acres in Texas. Two
major operators, Conoco-Phillips and Bopco, are enrolled in both plans.
As evidenced by the enrollment acreages and funds collected thus far,
numerous other companies have submitted enrollment forms to enroll in
the Texas Conservation Plan. However, due to confidentiality
protections provided by the Texas Conservation Plan, those company
names have not been disclosed to date. The high level of participation
and compliance with the New Mexico Conservation Agreements and
additional voluntary conservation efforts prescribed by the Texas
Conservation Plan supports our determination that similar enrollment,
implementation, and success is likely to be achieved in Texas.
We also have high certainty that the New Mexico Conservation
Agreements and Texas Conservation Plan will be effective at reducing
and eliminating threats to the dunes sagebrush lizard to the point that
the species no longer meets the definition of threatened or endangered.
Our certainty arises from the fact that the primary effect of both
plans is to move further impacts outside of occupied dune complexes.
Further, the agreements have sufficient monthly and annual monitoring
and reporting requirements to ensure that all of the conservation
measures are implemented as planned, and are effective at removing
threats to the lizard and its habitat. The collaboration between the
Service and other stakeholders requires regular meetings and
involvement of all parties in order to implement the agreements fully.
In summary, we conclude that the conservation efforts have
sufficient certainty of implementation and effectiveness that they can
be relied upon in this final listing determination. Further, we
conclude that the conservation efforts have reduced or eliminated
current and future threats to the dunes sagebrush lizard to the point
that the species no longer is in danger of extinction now or in the
foreseeable future. Therefore, we conclude that listing the dunes
sagebrush lizard as an endangered or threatened species is not
warranted, and are withdrawing our proposed rule to list the dunes
sagebrush lizard as endangered.
We will continue to monitor the status of the species through
monitoring requirements in the New Mexico Conservation Agreements and
Texas Conservation Plan, and our evaluation of any other information we
receive. These monitoring requirements will not only inform us of the
amount of dunes sagebrush lizard habitat conserved and reclaimed, but
will also help inform us of the status of the dunes sagebrush lizard.
Additional information will continue to be accepted on all aspects of
the species. We encourage interested parties, outside of those parties
already signatories to the New Mexico Conservation Agreements and Texas
Conservation Plan, to become involved in the conservation of the
species.
If at any time data indicate that the protective status under the
Act should be reinstated, including, but not limited to, information
that enrollment in the voluntary agreements has declined substantially,
or if we become aware of noncompliance issues with the conservation
measures, or if there are new or increasing threats, we can initiate
listing procedures, including, if appropriate, emergency listing
pursuant to section 4(b)(7) of the Act.

References Cited

A complete list of all references cited in this document is
available on the Internet at http://www.regulations.gov at Docket No.
FWS-R2-ES-2010-0041 or upon request from the Field Supervisor, New
Mexico Ecological Services Field Office (see ADDRESSES section).

Authors

The primary authors of this document are the staff members of the
New Mexico Ecological Services Field Office (see ADDRESSES).

Authority: The authority for this action is the Endangered
Species Act of 1979, as amended (16 U.S.C. 1531 et seq.).

Dated: June 12, 2012.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-14818 Filed 6-18-12; 8:45 am]
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