[Federal Register Volume 89, Number 98 (Monday, May 20, 2024)]
[Rules and Regulations]
[Pages 43748-43769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11025]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2022-0162; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BG22
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for the Dunes Sagebrush Lizard
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the dunes sagebrush lizard (Sceloporus
arenicolus), a lizard species found only in southeastern New Mexico and
west Texas. This rule extends the protections of the Act to this
species. Because we have concluded that the designation of critical
habitat for the dunes sagebrush lizard is prudent but not determinable
at this time, we will consider critical habitat for the species in a
separate, future rulemaking.
DATES: This rule is effective June 20, 2024.
ADDRESSES: This final rule, supporting materials we used in preparing
this rule (such as the species status assessment report), and comments
and materials we received on the July 3, 2023, proposed rule are
available on the internet at https://www.regulations.gov under Docket
No. FWS-R2-ES-2022-0162.
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), a species warrants listing if it meets the definition of an
endangered species (in danger of extinction throughout all or a
significant portion of its range) or a threatened species (likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range). If we determine that a
species warrants listing, we must list the species promptly and
designate the species' critical habitat to the maximum extent prudent
and determinable. We have determined that the dunes sagebrush lizard
meets the Act's definition of an endangered species; therefore, we are
listing it as such. As explained later in this document, because the
designation of critical habitat for the dunes sagebrush lizard is
prudent but not determinable at this time, we will consider critical
habitat for the species in a separate, future rulemaking. Listing a
species as an endangered or threatened species and designating critical
habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule lists the dunes sagebrush lizard
as an endangered species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (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. We have determined that the dunes sagebrush lizard
is endangered due to the following threats: (1) Habitat loss,
fragmentation, and degradation from development by the oil and gas and
the frac sand (high-purity quartz sand that is suspended in fluid and
injected into wells to blast and hold open cracks in the shale rock
layer during the fracking process) mining industries; and (2) climate
change and climate conditions, both resulting in hotter, more arid
conditions with an increased frequency and greater intensity of drought
throughout the species' geographic range.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. As explained later
in this rule, we find that the designation of critical habitat for the
dunes sagebrush lizard is not determinable at this time. The Act allows
the Service an additional year to publish a critical habitat
designation that is not determinable at the time of listing (16 U.S.C.
1533(b)(6)(C)(ii)).
Previous Federal Actions
Please refer to the proposed listing rule (88 FR 42661; July 3,
2023) for a detailed description of previous Federal actions concerning
the dunes sagebrush lizard.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the dunes sagebrush lizard. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing actions under the Act, we solicited independent scientific
review of the information contained in the dunes sagebrush lizard SSA
report. The peer reviews can be found at
[[Page 43749]]
https://www.regulations.gov. In preparing the July 3, 2023, proposed
rule, we incorporated the results of these reviews, as appropriate,
into the SSA report, which was the foundation for the proposed rule and
this final rule. A summary of the peer review comments and our
responses can be found in the proposed rule (88 FR 42661 at 42663-
42664; July 3, 2023).
Summary of Changes From the Proposed Rule
Based upon our review of the public comments, State agency
comments, peer review comments, and relevant information that became
available since the July 3, 2023, proposed rule published, we updated
information in our SSA report, including:
Adding references on the impact of frac sand mining on
groundwater (USFWS 2024, pp. 70-80).
Adding information and references on human population
growth in the Permian Basin, which is likely to exacerbate the threats
of habitat loss and fragmentation (USFWS 2024, p. 127).
Adding information (Chan 2023, pers. comm.) regarding
estimates of genetic effective population size for dunes sagebrush
lizard populations (USFWS 2024, pp. 40-41, 106-107).
Adding information on the effects of climate change on
future groundwater levels (USFWS 2024, p. 75).
Updating enrollment numbers in existing conservation
agreements (USFWS 2024, p. 84).
We also made changes as appropriate in this final rule. In addition
to minor clarifying edits, this determination differs from the proposal
in the following ways:
(1) We received a comment regarding the impact of fugitive road
dust on the dunes sagebrush lizard and its habitat. This comment
indicated that the impact of fugitive road dust on the species is
uncertain. After reconsidering the impact of fugitive road dust on the
species, we decided to remove the statement referencing road dust from
the explanation of the listing decision presented below. This change
does not impact the final conclusion that the dunes sagebrush lizard is
in danger of extinction throughout all of its range (i.e., that it
meets the Act's definition of an endangered species).
(2) We updated the language in the explanation of the listing
decision and SSA report to address confusion regarding the terms ``well
density'' and ``well pad density.'' These changes demonstrate that our
focus is on well pads, and the associated construction of road
infrastructure, as they are central components of ground disturbance,
and therefore species impacts, in oil and gas drilling and extraction.
Summary of Comments and Recommendations
In the proposed rule published on July 3, 2023 (88 FR 42661), we
requested that all interested parties submit written comments on the
proposal by September 1, 2023. Following requests from several members
of the public, on August 30, 2023, we published a document in the
Federal Register (88 FR 59837) extending the public comment period on
our July 3, 2023, proposal to October 2, 2023. 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 Albuquerque Journal, Midland Reporter, and Carlsbad
Argus. We held a public informational session and a public hearing on
July 31, 2023. All substantive information we received during the
comment periods has either been incorporated directly into this final
determination or is addressed below.
Federal Agency Comments
(1) Comment: One Federal agency, one State agency, and several
public commenters suggested that the Service list the dunes sagebrush
lizard as a threatened species in order to issue a rule under section
4(d) of the Act (a ``4(d) rule'') that exempts from take those
activities that occur pursuant to CCAAs, noting this framework would
complement existing conservation efforts.
Our response: We conclude that the dunes sagebrush lizard is
currently in danger of extinction, and not in danger of extinction
within the foreseeable future. Therefore, the species currently meets
the Act's definition of an endangered species, not the definition of a
threatened species. The commenters did not provide supporting evidence
as to why the dunes sagebrush lizard should be listed as a threatened
species. We cannot consider regulatory implications, such as the
flexibility provided by a potential 4(d) rule, in determining the
status of a species.
Comments From States
(2) Comment: We received several comments regarding critical
habitat designation for the dunes sagebrush lizard. One State agency
expressed that not designating critical habitat at the time of listing
calls into question the Service's conclusions, and they requested that
the Service not delay designating critical habitat and the associated
analysis of the economic impact of a critical habitat designation for
the species. Other commenters expressed concern over a delay in
designating critical habitat, noting either the need for an evaluation
of economic impacts or concern that the delay will lead to additional
destruction of dunes sagebrush lizard habitat. Another State agency
indicated that they plan to assist with any necessary analysis in the
development of a critical habitat designation for this species.
Our response: As described below under II. Critical Habitat, we
find the designation of critical habitat to be prudent but not
determinable at this time. Because the evaluation of economic impacts
comes into play only in association with the designation of critical
habitat under section 4(b)(2) of the Act, we did not engage in any
evaluation of economic impacts to inform this final listing rule. We
recognize that designation of critical habitat would create an
additional layer of protection; however, we are still in the process of
assessing the information needed to analyze the impacts of the
designation. The Act allows the Service an additional year to publish a
critical habitat designation if we find that critical habitat is not
determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).
(3) Comment: Two State agencies and several public commenters
expressed concern for the impacts this listing rule will have on the
economy, agriculture industry, and energy independence. One State
agency also expressed concern for the impact listing will have on
funding for education in Texas due to impacts to revenues from oil and
gas.
Our response: We acknowledge these concerns and, separate from this
listing action, have worked with partners to develop voluntary
conservation agreements to mitigate the impacts of industrial
activities. We remain committed to continuing to do so. However,
regarding this listing, the Act requires that listing determinations be
made solely on the basis of the best scientific and commercial data
available and the Congressional record is clear that economic analysis
requirements of Executive Order 12291 and such statutes as the
Regulatory Flexibility Act do not apply to any phase of determining the
listing status of an entity under the Act.
(4) Comment: Two State agencies and several individuals commented
that the Service's analysis and listing determination disregard
voluntary conservation efforts now and into the future. Several argued
the candidate
[[Page 43750]]
conservation agreement (CCA) in New Mexico and the candidate
conservation agreements with assurances (CCAAs) in both New Mexico and
Texas offer sufficient protections and conservation such that listing
of the species is not warranted. One State agency commented that
listing the dunes sagebrush lizard as endangered undermines the
voluntary conservation efforts put in place and will have detrimental
impacts to the species by discouraging future voluntary conservation
efforts.
Our response: The Act requires us to make a determination using the
best available scientific and commercial data after conducting a review
of the status of the species and after taking into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such
species within any area under its jurisdiction. In line with that
requirement, we considered all current and projected future impacts of
conservation efforts on the status of the dunes sagebrush lizard. In
addition, the listing of the species does not prevent the existing
conservation agreements from operating or obstruct the development of
additional conservation agreements or partnerships to conserve the
species. The conditions of the CCA and CCAAs will remain in place for
enrollees now that the dunes sagebrush lizard is listed as an
endangered species. Once a species is listed as either endangered or
threatened, the Act provides many additional tools to advance the
conservation of listed species. Conservation of the dunes sagebrush
lizard is dependent upon working partnerships with a wide variety of
entities, including the voluntary cooperation of non-Federal
landowners. Building partnerships and promoting cooperation of
landowners are essential to understanding the status of species on non-
Federal lands and may be necessary to implement recovery actions such
as reintroducing listed species, restoring habitat, and protecting
habitat. Once a species is listed, for private or other non-Federal
property owners, we offer voluntary safe harbor agreements (SHAs) that
can contribute to the recovery of species, habitat conservation plans
(HCPs) that allow lawful activities to proceed while minimizing effects
to species, funding through the Service's Partners for Fish and
Wildlife Program to help promote conservation actions, and grants to
the States under section 6 of the Act.
The existing CCA and CCAAs in New Mexico and Texas have provided,
and continue to provide, many conservation benefits for the dunes
sagebrush lizard. However, based on the information we reviewed in our
assessment, we conclude that the risk of extinction for the dunes
sagebrush lizard is high despite these efforts. For example, advances
in mapping dunes sagebrush lizard habitat have allowed the Service to
gain a better understanding of the extent of habitat loss and
fragmentation for the species rangewide. We have quantified these
habitat impacts with the mapping effort described in chapter 5 of the
SSA report (USFWS 2024, pp. 88-111). Furthermore, these conservation
agreements have not eliminated the loss of dunes sagebrush lizard
habitat. The current buffer around duneland habitat in New Mexico is 30
meters. As a result, development continues in close proximity to
duneland habitat. This has led to increased habitat fragmentation and a
loss of connectivity between important habitat patches. In Texas, the
CCAAs promote avoidance and minimization of impacts to dunes sagebrush
lizard habitat. However, these CCAAs still allow development within
dunelands when mitigation measures are applied, although some of these
mitigation measures, such as mesquite removal, have been shown to
provide little conservation benefit (USFWS 2024, pp. 86-87). Thus,
continued development in dunelands contributes to increasing
fragmentation, which has failed to be offset by mitigation. Also, the
accomplishments and level of success of the existing CCA and CCAAs
differ between Texas and New Mexico, as pointed out by several
commenters. Enrollment in the Texas Conservation Plan (TCP), one of the
two CCAAs, in Texas, has declined significantly over the past several
years and the plan has not performed as expected due to several
factors, including implementation errors, low enrollment, activities of
non-Participants, and stratification of enrolled and non-enrolled
properties. The CCAA signed in 2020, which is the second CCAA in Texas,
also currently has similar issues, such as low enrollment,
stratification of properties, and lack of clarity to date on
conservation measures and other activities. While conservation measures
are a requirement of participation in the certificates of inclusion, we
are unsure of the extent of conservation measure implementation in
Texas, as well as the locations of areas where conservation is
occurring. Thus, while we continue to coordinate with the plan
administrators, based on performance reporting to date, it has not yet
been demonstrated that these agreements will be adequate or effective
at protecting the dunes sagebrush lizard or its habitat in Texas into
the future. Therefore, the measures implemented by these agreements are
not enough to reduce the risk of extinction of the dunes sagebrush
lizard such that it does not meet the definition of an endangered
species.
(5) Comment: One State agency recommended the Service provide
additional information regarding interpretation of a population
viability analysis. Several public commenters also requested additional
information on why modeling habitat is reliable for inferring dunes
sagebrush lizard demographics. One public commenter suggested that the
results of the population viability model from Leavitt and Acre (2021,
p. 29) support a threatened listing determination.
Our response: Our assessment of the viability of the dunes
sagebrush lizard was based on the quantity and quality of habitat
across its range. We chose this approach for several reasons. First, it
provided a consistent methodology to assess populations rangewide,
which was not available for any of the demographic data. Since the
habitat assessment was based on aerial imagery and land cover data
available across the entire species' range, and was not limited by
State lines, we were able to generate comparable data to assess
habitat. As noted in the SSA report, there are no rangewide data on
population abundance and trends for the dunes sagebrush lizard (USFWS
2024, pp. 35-41). Leavitt and Acre (2021, entire) provide population
estimates for the New Mexico portion of the range only. There are no
equivalent population estimates for Texas. Without consistent
demographic data, our approach ensures that comparable data available
across the species' range were used to provide a comprehensive
assessment of the dunes sagebrush lizard's status.
Second, given the habitat specificity of the dunes sagebrush
lizard, we determined that an assessment of habitat is appropriate to
evaluate the status of the species. There is ample evidence that loss
and degradation of the habitat result in declines and extirpations of
the dunes sagebrush lizard. As referenced in the SSA (USFWS 2024, pp.
57-60), multiple studies have documented the impact of increasing well
pad density on the species, providing a consistent metric to assess
viability of dunes sagebrush lizard populations (Sias and Snell 1998,
p. 1; Leavitt and Fitzgerald 2013, p. 9; Ryberg et al. 2015, p. 893;
Johnson et al. 2016, p. 41; Walkup et al. 2017, p. 9).
[[Page 43751]]
Although Leavitt and Acre (2021, entire) provide estimates of
population abundance, this study has several limitations relevant to
our assessment. Again, the study is limited to just the dunes sagebrush
lizard's range in New Mexico. Second, density estimates were based on
lizard surveys at several locations, noted as trapping grids. The
spatial distribution of these grids is heavily biased: most are
concentrated in a single analysis unit (southern Mescalero 1). The
remaining analysis units had just one grid, except for northern
Mescalero 4, which had none. This spatial bias may impact population
density estimates. Third, the population estimates for each analysis
unit were based on the assumption that all potentially suitable habitat
is occupied at all times, which is likely an overestimate of true
habitat occupancy. Numerous studies have revealed that given the
colonization and source-sink dynamics of dunes sagebrush lizard
populations, not all patches of adequate habitat may be occupied (USFWS
2024, p. 36). The study did not consider where a block of habitat was
of sufficient size to support a population of dunes sagebrush lizards,
or whether they were fragmented and isolated to the point that
colonization of these patches was unlikely. It also did not incorporate
the well pad density thresholds that are correlated with decreases in
dunes sagebrush lizard abundance in estimating population abundance.
The survey grids used to inform the density estimates are located in
relatively undisturbed, intact habitat and may not reflect dunes
sagebrush lizard abundance in degraded habitat. Thus, the population
estimates of Leavitt and Acre (2021, entire) are likely overestimates
of the number of dunes sagebrush lizards on the landscape. We conclude
that these estimates are insufficient for inferring population
resiliency and that our habitat modeling provides a more reliable
approach.
Leavitt and Acre (2021, pp. 6-11) also performed a population
viability analysis to estimate the probability of extirpation for each
analysis unit in New Mexico. However, we do not rely on this analysis
for several reasons. First, as noted above, the population estimates
used as input for the model are biased and likely to be overestimates.
Second, the population viability analysis uses two different model
frameworks to estimate probability of extinction. Notably, these two
models provide drastically different estimates; one model, which is
based on the Vortex modeling framework, predicts the probability of
extirpation to be less than 1 percent for all analysis units, whereas
the other model predicts the probability is greater than 50 percent for
all analysis units. These discrepancies are due to the differing
analytical assumptions and data inputs for the two models. The
difference in the outcome of these models reinforces our decision that
a habitat model is the best way to avoid the apparent biases in
existing survey data and to examine the threats to the species from
habitat loss and fragmentation, which are the most impactful threats to
the species. Hence, we did not rely on this model in our listing
determination.
(6) Comment: Two State agencies and several other commenters
suggested that the Service did not appropriately consider population
trends and population estimates for the dunes sagebrush lizard. They
further expressed that these population estimates do not justify
listing and that the Service failed to explain observed population
increases. Commenters cited several studies referencing population
estimates and trends, including Leavitt and Acre (2021, entire) and
Acre and Hill (2023, entire).
Our response: As discussed in section 2.6.3 of the SSA report
(USFWS 2024, pp. 38-41), rangewide population data for the dunes
sagebrush lizard do not exist to enable us to estimate abundance and
population trends. As noted in comment response (5), the population
estimates for New Mexico produced by Leavitt and Acre (2021, entire)
are likely overestimates based on the assumptions embedded in the
analysis. The survey data completed in New Mexico (i.e., Acre and Hill
2023, entire), which are discussed in section 2.6.4 of the SSA report
(USFWS 2024, pp. 41-43), only cover specific locations within the
species' range where the dunes sagebrush lizard is known to occur.
These studies represent targeted surveys in high-quality habitat to
discern localized trends in the species, and, as such, we are unable to
extrapolate these data to look at population trends universally or
infer the status of the species rangewide. These data are also not
representative of habitat across the species' range and do not provide
companion surveys of fragmented habitat. Other studies have shown that
habitat fragmentation is correlated with declines of the dunes
sagebrush lizard, as discussed in the SSA report (USFWS 2024, pp. 54-
55). Additionally, the data referenced in the public comments (e.g.,
Acre and Hill 2023, entire) only covers a brief time period (5 years),
which is not sufficient to infer long-term population trends. As such,
surveys limited to high-quality habitat across a short time period
provide too narrow of a dataset to infer rangewide populations trends.
Our quantitative assessment of habitat condition provided a more
comprehensive and consistent way to assess the status of the dunes
sagebrush lizard rangewide.
(7) Comment: One State agency commented the Service incorrectly
used the terms ``well density'' and ``well pad density''
interchangeably, and, as such, conclusions concerning impacts to the
dunes sagebrush lizard at certain well pad densities now and into the
future are unclear, are unsupported, and should not form the basis for
the listing. The commenter claims the studies referenced by the Service
also use the terms interchangeably, and that the Service should not
rely on Sias and Snell (1998, entire) to conclude that a density of 13
well pads per square mile should be considered degraded habitat because
the study preceded the advent of horizontal drilling.
Our response: We agree that the terms ``well density'' and ``well
pad density'' are not interchangeable and are a source of confusion.
Our focus is on well pads, and the associated construction of road
infrastructure, as they are central components of ground disturbance in
oil and gas drilling and extraction. Appropriate clarifications have
been made in the SSA report and this final rule. We also agree that
Sias and Snell (1998, entire) conducted their study before the
widespread implementation of more advanced horizontal drilling
technologies and thus employed a more conflated definition of wells and
well pads, essentially drawing no distinction between the two meanings.
The term ``well(s)'' used by Sias and Snell (1998) is, however,
equivalent to the more recent usage of ``well pad(s).''
With these clarifications, we continue to conclude the best
available science demonstrates that a density of 13 well pads per
square mile constitutes degraded habitat for the species. Johnson et
al. (2016, pp. 41, 51) provides an independent analysis that shows
important declines in dunes sagebrush lizard densities at more
conservative values of 5 and 8 well pads per square mile, with
additional declines at 18 well pads per square mile. Leavitt and
Fitzgerald (2013, p. 9) document consistently fewer captures of dunes
sagebrush lizards in fragmented sites, which they define as 13 well
pads or more per square mile. Even when the species was present, it was
found in lower abundance when there were 13 or more well pads per
square mile. This study also found that the dunes sagebrush lizard was
one of the first species to disappear from areas with 13
[[Page 43752]]
well pads or more per square mile. Further, this study notes that
trapping grids located in areas that were more fragmented by
development had fewer large dune blowouts, a key feature of dunes
sagebrush lizard habitat and ecology, compared to non-fragmented areas.
Walkup et al. (2017, pp. 5, 9, 10) confirmed that habitat
fragmentation, again areas defined as having more than 13 well pads per
square mile, resulted in very low capture rates and that the
demographic structure of dunes sagebrush lizard populations in
fragmented grids was clearly disrupted compared to unfragmented grids.
The study concludes that too few dunes sagebrush lizards were present
in fragmented areas to support a self-sustaining population. We,
therefore, elected to use 13 well pads per square mile to describe
degraded habitat due to the strong consensus in the literature from
1998-2017 and because there is clear evidence it is an appropriate
measure of degraded habitat (USFWS 2024, p. 60).
Our assessment of future habitat conditions is based on a
comprehensive analysis by Pierre et al. (2020, entire) that modeled
landscape alterations from oil and gas well pad construction through
the year 2050. Via the application of three discrete scenarios that
project different levels of landscape-level impacts (low, medium, and
high impact) across the Permian Basin, this study incorporated many of
the trends and market forces that influence oil and gas development. In
addition, to inform the placement and characteristics of modeled well
pads, Pierre et al. (2020, pp. 3-5) accounted for the size and
technological advances in horizontal drilling, which is capable of
clustering multiple well heads on an individual well pad. We have
concluded that both the current and future characterizations of well
pad impacts and degraded habitat conditions presented in our analysis
are based solely on the best scientific and commercial data available
(USFWS 2024, pp. 111-112, 187).
(8) Comment: Two State agencies and several members of the public
commented that the Service's conclusions about future impacts of oil
and gas activities are exaggerated, are highly speculative, are based
on antiquated data, and have high levels of uncertainty, which cause
them to be insufficient to justify listing the dunes sagebrush lizard.
Some of the commenters believe the SSA report and proposed rule fail to
account for several technological advancements that significantly
reduce impacts of oil and natural gas activities on the dunes sagebrush
lizard and its habitat. The commenters identified these advancements as
including three dimensional (3D) seismic surveys, horizontal and
directional drilling, multi-well pads, centralized facilities, shorter
drilling and well completion timeframes, closed-loop drilling fluid
systems, and enclosed liquid gathering systems.
Our response: We agree that advances in oil and gas drilling and
extraction technologies represent a significant reduction in ground
disturbance relative to historical practices. To account for this, we
derived a set of future impact scenarios that empirically modeled both
trends that drive demand and technologies that cluster multiple wells
on a given well pad (Pierre et al. 2020, p. 4; USFWS 2024, p. 111).
This analysis is presented in the SSA report (USFWS 2024, pp. 118-126)
and represents the best available projections of future oil and gas
drilling based on past well placement, market forces, and technological
innovation. Our analysis demonstrates that across all three scenarios
there will be continued loss of dunes sagebrush lizard habitat by 2050,
although there were differences in the magnitude of overall habitat
loss among the three scenarios.
Nonetheless, our listing determination that the dunes sagebrush
lizard meets the Act's definition of an ``endangered species'' is
supported by the current condition of the habitat and the risk that
condition poses to the dunes sagebrush lizard throughout all of its
range. The existing landscape includes a vast number of historical and
unrestored well pads, as well as their associated road infrastructure.
This enduring legacy of the oil and gas industry, spanning over a
century of vertical drilling practices, represents a significant
hindrance to dunes sagebrush lizard dispersal and drastically
compromises habitat quantity and quality (USFWS 2024, pp. 56-60). We
recognize that horizontal drilling has been implemented since 2008, but
that does not allay the myriad issues with the degree and extent of
historical well pads or the small proportion of well pads that have
been reclaimed and returned to adequate dunes sagebrush lizard habitat.
Further, we understand that many historical well pads are being
reutilized for horizontal drilling; therefore, they are not currently
considered to be candidates for future habitat restoration efforts and
remain a source of ground disturbance.
In summary, the current condition of the dunes sagebrush lizard's
habitat is highly fragmented and of diminished quality. As a result of
the present destruction and modification of dunes sagebrush lizard
habitat, which has resulted in substantial reductions in the resiliency
of populations, the species meets the Act's definition of an
``endangered species,'' and we are listing it as such in this rule.
(9) Comment: One State agency commented that the Service failed to
provide meaningful data to justify the reversal of the Service's 2012
finding that the dunes sagebrush lizard does not meet the statutory
definition of an endangered or threatened species under the Act (see 77
FR 36872; June 19, 2012).
Our response: The 2024 decision to list the dunes sagebrush lizard
as an endangered species relies on the recently completed SSA, which
takes into account the best scientific data available on the species,
including updated mapping efforts and additional research on the
species and its habitat conducted or published after 2012. Between 2012
and 2024, mapping efforts by Natural Heritage New Mexico and Hardy et
al. (2018, entire) (discussed in the SSA report's appendix B) have
provided a resource for assessing dunes sagebrush lizard habitat
rangewide (USFWS 2024, pp. 182-189). This resource was not available at
the time of the 2012 listing decision. There has also been additional
research published since 2012 on the dunes sagebrush lizard's
population biology, such as factors influencing dispersal and
population genetic structure (USFWS 2024, pp. 35-43), and the negative
effects of habitat degradation on the species' persistence (USFWS 2024,
pp. 55-59). With this additional information, we were able to re-
evaluate the viability of the species more fully on these factors. This
process revealed that the species' current condition places it in
danger of extinction due to identified threats, including oil and gas
development in dunes sagebrush lizard habitat. Data from the U.S.
Census Bureau between 2010 and 2020 (Permian Basin Regional Planning
Commission 2023, entire) indicate that there was continued human
population growth in the Permian Basin Region. This growth is likely
connected to increased industry development. Further, several studies
project continued growth of extraction-related jobs in both Texas
(Texas Oil and Gas Association 2023, entire) and New Mexico (New Mexico
Department of Workforce Solutions 2023, p. 36). Again, this projection
of continued growth of the oil and gas development industry indicates
that there will continue to be impacts to the habitat of this species.
[[Page 43753]]
Oil and gas development, along with other threats like frac sand
mining, continue to contribute to habitat loss and fragmentation, the
primary threats to the dunes sagebrush lizard. Because restoration of
shinnery oak duneland is not currently feasible, loss of habitat within
duneland complexes must be viewed as a potential permanent impact to
the species. In addition, the 2012 withdrawal was based on the
implementation of newly developed conservation agreements, specifically
the TCP in Texas (77 FR 36872). These agreements now have a track
record that can be fully considered in evaluating the current and
future viability of the dunes sagebrush lizard. As discussed below, the
conservation efforts in place have not mitigated or ameliorated the
threats to the dunes sagebrush lizard such that it does not require the
protections of the Act.
(10) Comment: One State agency and several individuals commented
that the Service exaggerated the threat of sand mining and associated
surface disturbance in the proposed decision to list the dunes
sagebrush lizard. The comments noted that sand mining only occurs in a
small portion of the species' range, there are no peer review studies
on the effects of sand mining on the dunes sagebrush lizard or its
habitat, and the Service failed to demonstrate that frac sand mining is
expanding or increasing now or that it will do so into the future.
Our response: After reviewing information regarding the industry,
we concluded that frac sand mining poses a threat to dunes sagebrush
lizard habitat due to extensive surface disturbance caused by the
mining process. There are currently no peer-reviewed studies on the
impacts of sand mines on the dunes sagebrush lizard. This is because
frac sand mines only became prevalent in the area in 2017. Regardless,
the best available science supports the conclusion that the excavation
of sand is detrimental to the species. This is because frac sand mining
results in the complete removal of surface habitat, including shinnery
oak and sand dunes. Aerial imagery shows no shinnery oak duneland
habitat remaining after a sand mine disrupts the surface for sand
extraction and infrastructure. In our habitat analysis, we treated the
footprint of sand mines as complete non-habitat for the dunes sagebrush
lizard (USFWS 2024, pp. 62-63). These footprints were determined using
aerial imagery obtained for each of the 18 known sand mines within the
range of the dunes sagebrush lizard (USFWS 2024, pp. 110-111). Manually
digitizing these features, while far more time consuming, is often more
accurate than remote sensing methods, as depositional sand may obscure
some features and blend them with non-anthropogenic landforms.
Our use of only the mine footprints, rather than a larger mining
area, to estimate impact to the dunes sagebrush lizard likely is an
underestimation of effects. We did not categorize habitat surrounding
the footprint of a mine as degraded or disturbed due to its proximity
to these facilities. Thus, we treated habitat surrounding these mines
as intact, unless other disturbances were present (e.g., well pads).
The impacts of the mines themselves likely extend beyond their
footprint by, for example, deflating surrounding sand dunes and
damaging nearby vegetation (USFWS 2024, pp. 60-61). Also, several mines
are notably located in areas that represent pinch-points in the dunes
sagebrush lizard's range in Texas (USFWS 2024, p. 97), which may
restrict dispersal between habitat patches.
We based our estimates on the best available information regarding
observed sand mine growth rates since the inception of the industry in
west Texas, mainly imagery from the National Agricultural Imagery
Program and MAXAR Technologies. Table C-1 in appendix C of the SSA
report (USFWS 2024, pp. 194-195) presents sand mine growth estimates
from the Texas State government, nongovernmental organizations, various
contractors, and the sand mining industry itself. The range and
distribution of these estimates track closely with our independent,
empirical analysis; in fact, our high impact estimate of sand mine
growth (74 acres per year) is notably less than several of the high
estimates from the body of information compiled in the SSA report
(86.5-145.8 acres per year). In addition, the 2020 CCAA in Texas
authorizes up to 60 acres per year of habitat loss (considered to be
take of the species) per mine, within any habitat class, which is
roughly 10 percent more than our medium impact scenario (54 acres per
year). Lastly, our low impact scenario (39 acres per year) is
comparable with the lowest value (37.1 acres per year) from table C-1
in the SSA report (USFWS 2024, pp. 196-197). Our analysis is in line
with multiple previous estimates of sand mine growth from a wide
variety of sources.
Also, market analysis indicates that the frac sand mining industry
in west Texas has additional opportunity for growth. Mace (2019, p. 42)
indicates that the current frac sand capacity is meeting roughly 40
percent of the total market demand and more than 30 potential mine
sites can be identified within the Monahans Sandhills region. This
study also notes that the total acreage purchased by individual
operators is far greater than what is currently reported as disturbed.
These future projections indicate that our model of 18 sand mines is a
conservative estimate and additional habitat loss is likely.
(11) Comment: Two State agencies and several other individuals
commented that the Service's analysis on climate change impacts on the
dunes sagebrush lizard are speculative, arguing the Service does not
provide scientific literature or data to demonstrate impacts of climate
change on the species.
Our response: The Act requires that we use the best scientific data
available when we make decisions to list a species, and we followed all
Service policies and standards on data and information quality in our
SSA report and this final rule. We concluded that the direct impacts of
climate change on the dunes sagebrush lizard, its food, and its habitat
are somewhat uncertain; there are no studies available that have
examined the specific response of the dunes sagebrush lizard to a
changing climate. However, we have presented a thorough assessment of
likely future impacts of climate change in chapter 4.3 of our SSA
report (USFWS 2024, pp. 72-75) based on our knowledge of the species
and its habitat. Drought has become more frequent over the past several
decades across the species' range (U.S. Drought Monitor 2022,
unpaginated), which not only affects the dunes sagebrush lizard, but
also the shinnery oak that is the foundation of the entire ecosystem.
During drought, shinnery oak can lose its leaves or not even leaf-out
(Peterson and Boyd 1998, p. 9). Recent droughts have resulted in a lack
of the typical spring green-up for shinnery oak, instead occurring
later with the seasonal summer monsoons (Johnson et al. 2016, p. 78).
The timing of this green-up is important, as is provides shelter for
adults as they become active in the spring and food for invertebrates
that are consumed by the dunes sagebrush lizard.
Effects of drought on shinnery oak can also have broader
consequences for duneland habitat. Shinnery oak clones may reach 15
meters (50 feet) in diameter, making large areas of duneland habitat
vulnerable in the event of drought-induced oak mortality (Gucker 2006,
p. 7). Any disruption to the groundwater in these ecosystems (e.g.,
drought) that lowers the water table may destabilize the dunes such
that the system experiences a net loss in sand (Newton and Allen 2014,
p. 4).
[[Page 43754]]
Furthermore, periods of low rainfall are likely to inhibit shinnery oak
colonization of disturbed areas, limiting potential for restoration and
natural ecological dynamics. Ultimately, given the close association
between the dunes sagebrush lizard and shinnery oak, decline or loss of
this habitat would have ramifications for dunes sagebrush lizard
viability.
Climate change is likely to increase the frequency and magnitude of
drought in this region. On average, surface air temperatures across
Texas are predicted to increase by 3 degrees Celsius ([deg]C) (5.4
degrees Fahrenheit ([deg]F)) by 2099 (Jiang and Yang 2012, p. 238). In
the southwest United States, temperature increases will be concentrated
in the summer months. In Texas, the number of days exceeding 35 [deg]C
(95 [deg]F) may double by 2050 (Kinniburgh et al. 2015, p. 8).
According to climate change predictions, west Texas will experience
greater variability in seasonal precipitation patterns with the
greatest net loss experienced in winter (Jiang and Yang 2012, p. 238).
An increase in drought frequency and intensity has been shown to be
occurring throughout the range of the dunes sagebrush lizard
(Kinniburgh et al. 2015, p. 62). Projections under future climate
change indicate that groundwater resources will be further depleted
with more extreme drought and increasing summer temperatures (Nielsen-
Gammon et al. 2020, pp. 5-7; Yoon et al. 2018, entire). Based on this
information, we conclude that climate change will reduce the viability
of the dunes sagebrush lizard due to the effects of drought on the
species and its habitat.
(12) Comment: Two State agencies commented that the Service's
analysis and listing determination do not provide enough evidence or
justification to warrant an endangered finding.
Our response: We are required to make our determination based on
the best scientific and commercial data available at the time of our
rulemaking. We considered the best scientific and commercial data
available regarding the dunes sagebrush lizard to evaluate its
potential status under the Act.
Also, in accordance with our peer review policy published on July
1, 1994 (59 FR 34270), we solicited peer review of the SSA report from
knowledgeable individuals with scientific expertise that included
familiarity with the species, the geographic region in which the
species occurs, and conservation biology principles. Additionally, we
requested comments or information from other concerned governmental
agencies, Native American Tribes, the scientific community, industry,
and any other interested parties concerning our July 3, 2023, proposed
rule. Comments and information we received helped inform this final
rule. Further, information provided in comments on the proposed listing
rule were evaluated and taken into consideration in the development of
this final determination, as appropriate.
Public Comments
(13) Comment: Several commenters suggested creating tailored
prohibitions for the dunes sagebrush lizard, presumably through a rule
promulgated under section 4(d) of the Act. Other commenters suggested
that we did not provide information that would satisfy the Service's
policy on section 9 prohibitions (59 FR 34272; July 1, 1994), which
specifies that at the time of listing the Service will list specific
activities that will not be considered likely to result in violation of
section 9 of the Act.
Our response: Tailored prohibitions promulgated under section 4(d)
of the Act apply only to species listed as threatened; because we have
determined that the dunes sagebrush lizard is an endangered species,
the section 4(d) provisions do not apply this species.
Section 9 of the Act makes it illegal for anyone to ``take''
(defined as harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, collect, or attempt any of these actions) an endangered
species. At this time, we are unable to identify specific activities
that will not be considered likely to result in a violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions or already excepted through our regulations at 50 CFR
17.21. We estimate that most activities that result in surface
disturbance or disruption of existing habitat conditions in identified
habitat may be likely to result in take of the species. We provide
further information regarding section 9 prohibitions under Available
Conservation Measures, below. However, the mere promulgation of a
regulation, such as listing a species under the Act, does not take
private property, unless the regulation on its face denies the property
owners all economically beneficial or productive use of their land,
which is not the case with the listing of this species. Programs are
available to private landowners for managing habitat for listed
species, and permits can be obtained to protect private landowners from
the take prohibitions when such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity. Private
landowners may contact their local Service field office to obtain
information about these programs and permits.
(14) Comment: One commenter suggested the SSA report and proposed
rule do not use the best available science on habitat suitability,
probability of occurrence mapping, and species distribution based on
presence data from Walkup et al. (2022, entire).
Our response: In assessing the status of the dunes sagebrush
lizard, we developed a model that categorized and quantified habitat
consistently across the species' range. We used the Hardy et al. (2018,
entire) model in Texas because that model uses a methodology that can
be consistently applied with the Natural Heritage New Mexico model
(Johnson et al. 2016, entire) across the species' range using publicly
available spatial data. In contrast, the Walkup et al. (2022, entire)
models are limited to only a portion of the range (i.e., Monahans
Sandhills in Texas), rely on data only available for a subset of that
range, and rely on assumptions that limit applicability to our
rangewide assessment. Walkup et al. (2022, entire) developed fine-scale
occupancy models evaluating the probability of occurrence of the dunes
sagebrush lizard across the species' range in Texas. Their occupancy
model is not analogous to our habitat model, as it estimates the
likelihood that dunes sagebrush lizard may be present in a certain
area, rather than assessing the quality or quantity of habitat. While
the LiDAR (Light Detection and Ranging) data used to develop these
occupancy models present a novel inclusion of high-resolution data for
fine-scale habitat modeling of dunes sagebrush lizard presence, their
model predicted the likelihood of the species being present in a given
area based on correlations between presence data (i.e., locations where
the species has been detected) and environmental factors. The authors
point out an inherent bias of their model in that areas closer to
presence points have an inherently larger probability of occurrence.
Unfortunately, the models are based on only 67 presence points obtained
from 122 dunes sagebrush lizard observations (USFWS 2024, pp. 38-41).
The limited survey data are due to lack of access to private land with
missing or underrepresented counties within the range in Texas. Due to
these data limitations, these models are based on data that are not
random or evenly distributed across the potential range, likely biasing
the model. Walkup et al. (2022, pp. 357-358) caution interpretation of
low predicted probabilities of occurrence, citing that low probability
of occurrence is likely inflated in their modeling approach due
[[Page 43755]]
to geographic gaps in the available dunes sagebrush lizard occurrence
data. The authors point out issues with this modeling method that can
contribute to bias and under-prediction of habitat. Walkup et al.
(2022, pp. 357-358) emphasize the importance of validation in this type
of modeling. Without validation with an independent data set, the
modeling approach should be viewed simply as exploratory and not truly
predictive modeling (see Tredennick et al. 2021, entire). Exploratory
modeling helps in the process of identifying important habitat
variables for species like the dunes sagebrush lizard but cannot be
applied predictively across the range without the critical validation
step. Thus, Walkup et al. (2022, pp. 357-358) call for the importance
of obtaining more survey data for the dunes sagebrush lizard to address
the importance of validation. In light of these limitations, we found
the Hardy et al. (2018, entire) model to be a more reliable predictor
of species occupancy across the entire range of the dunes sagebrush
lizard.
(15) Comment: Several commenters suggested that the Service
inappropriately interpreted the impacts of habitat loss or disturbance
on dunes sagebrush lizard abundance and density. Commenters suggested
the Service does not demonstrate that oil and gas production and sand
mining are impacting the dunes sagebrush lizard's population, and that
habitat fragmentation does not mean habitat vanishes or decreases long
term but that it may shift in space. Several commenters further
expressed that the Service does not know how much habitat is critical
to the species' survival and that our analysis overinflates the areas
that should be considered habitat.
Our response: As discussed in section 4.1 of the SSA report, the
largest threat to the dunes sagebrush lizard is habitat loss and
fragmentation, and dunes sagebrush lizard population declines in
fragmented landscapes have been repeatedly observed (USFWS 2024, pp.
56-71).
Dunes sagebrush lizard habitats may shift spatially over geological
time; however, as discussed in section 2.5.7 of the SSA report (USFWS
2024, pp. 34-35), this is a slow process that takes decades, centuries,
and even millennia to occur and does not happen during a biologically
meaningful time period for dunes sagebrush lizard populations
(Fitzgerald et al. 1997, p. 28; Dzialak et al. 2013, p. 1371-1372,
1379-1383; Hardy et al. 2018, p. 27). Additionally, as discussed in
section 2.6.2 of the SSA report (USFWS 2024, pp. 36-38), the dunes
sagebrush lizard may not occur in all areas of suitable habitat due to
natural extinction-colonization dynamics (Fitzgerald et al. 1997, p.
28; Painter et al. 1999, p. 51; Fitzgerald et al. 2005, p. 1; Walkup et
al. 2022, pp. 358; Acre and Hill 2023, p. 11. However, the
fragmentation that exists on the landscape and the species' limited
dispersal ability often prevent dunes sagebrush lizards from moving
amongst disconnected patches of habitat. In some cases, due to
fragmentation, the dunes sagebrush lizard may have once existed within
a patch or patches of suitable habitat, but, because of stochastic
events, the species may have disappeared there, and the fragmentation
that currently exists on the landscape can prevent dispersal to these
unused patches of habitat. Due to the habitat requirements of the dunes
sagebrush lizard, these patches of habitat that may be considered
suitable habitat but may be unoccupied, or may have low levels of
occupation that may be difficult to detect, could be important areas in
future recovery actions restoring connectivity between occupied and
unoccupied sections of habitat.
(16) Comment: Several commenters note well drilling data from the
New Mexico Energy, Minerals and Natural Resources Department and the
Texas Railroad Commission often include wells that are abandoned or
plugged and can contain multiple log entries for the same well over
time. Commenters claim that the Service does not indicate whether
duplicate well entries were removed in the refined habitat model, and
they note that, if the Service did not conduct such a screening, the
Service might be over-classifying areas as disturbed or degraded.
Our response: We agree that the New Mexico Energy, Minerals and
Natural Resources Department and the Texas Railroad Commission
databases contain records of wells now plugged or abandoned. That does
not, however, indicate a lack of ground disturbance on either
historical or more contemporary well pads. Our focus is on ground
disturbance, as that is a key element of dunes sagebrush lizard habitat
condition. We, therefore, visually reconciled the above databases with
recent aerial imagery and remotely sensed land cover modeling to
validate the spatial coincidence between the well locations and
persistent ground disturbance, which showed a high degree of agreement.
Further, there has been little well pad reclamation for plugged,
abandoned, or otherwise non-active wells in this area; while there may
be no drilling equipment present at a given site, the installed caliche
well pad and associated road infrastructure often remain intact, which
leads to habitat loss and fragmentation for the species.
We did evaluate these databases for duplicate well entries. Within
Texas, including the area adjacent to the New Mexico border (Mescalero
7 analysis unit), there were 8,316 total well records but only a single
record (0.01 percent) was coincident. Similarly, in southeast New
Mexico, there were 82 spatially identical records (0.6 percent) out of
13,283 total well records. In addition, there are many instances, in
both New Mexico and Texas, where a well pad exists with no record in
the State databases of well installation or drilling activity.
(17) Comment: Several commenters suggested the analysis in the SSA
report does not sufficiently consider the different components of the
oil and gas lifecycle, the temporary nature of the impacts, and the
process of decommissioning and removal of well infrastructure. These
comments suggested that the Service improperly assumes that ongoing and
future oil and gas development will have deleterious effects on the
dunes sagebrush lizard.
Our response: While the infrastructure from oil and gas development
placed on the landscape may be limited to a lifecycle of 20-30 years
and disturbance from human activity primarily occurs during the
beginning stages of well development, the impact to the landscape, and
loss of dunes sagebrush lizard habitat, is effectively permanent. Once
the infrastructure, including all the physical infrastructure and the
caliche used for the well pads and roads, are removed, the physical
form of the landscape remains altered. The shinnery oak dunelands that
the dunes sagebrush lizard relies on for habitat are flattened and
removed during development. Even if a well pad is completely reclaimed,
the sand dunes are lost until long-term geologic processes that take
centuries and even millennia to occur can recreate the dunes (USFWS
2024, p. 34). Due to the dunes sagebrush lizard's reliance on this very
specific and restricted habitat of shinnery oak dunes within the
Mescalero and Monahans Sandhills, the species is highly susceptible to
habitat loss and fragmentation, with loss of this habitat being the
greatest threat to the species, as described in detail in the SSA
report (USFWS 2024, pp. 55-70). Removal of shinnery oak dunelands can
impair breeding, feeding, sheltering, dispersal, and survival, causing
declines in abundance or even loss of populations. Degradation and
fragmentation of shinnery oak dunelands may be irreversible; once
[[Page 43756]]
disturbed, these dunelands shift to alternative stable states of other
habitat type and, to date, attempts to restore this habitat have been
unsuccessful at a large scale (Ryberg et al. 2015, p. 896; Johnson et
al. 2016, p. 34). Reclaiming unused well pads is beneficial to the
dunes sagebrush lizard because it allows for improved connectivity
between dunelands. However, to date, there have been no successful
efforts to recreate lost habitat.
(18) Comment: Commenters requested clarification on the relative
importance of various habitat types to the dunes sagebrush lizard and
justification on how they were classified and summed. One commenter
believed the dunes sagebrush lizard is not associated with open sand
dunes, grass dunes, mesquite shrublands, and mesquite grasslands, and
that these land covers are not described as suitable habitat for the
species.
Our response: The habitat categories we developed for the SSA,
namely shinnery oak duneland and shinnery oak supportive habitat, were
based on published information regarding habitat use by the dunes
sagebrush lizard (Johnson et al. 2016, entire; Hardy et al. 2018, p.
21). As described in section 5.1.2 of the SSA report (USFWS 2024, pp.
89-91), shinnery oak duneland is the top-quality habitat that the
species uses most for breeding, feeding, and sheltering. This category
includes areas with less than 10 percent mesquite cover in New Mexico,
and less than 5 percent mesquite cover in Texas. The difference between
the two States is due to data availability and the resulting habitat
categories defined by the separate mapping efforts for each portion of
the dunes sagebrush lizard's range. Johnson et al. (2016, entire) and
Hardy et al. (2018, entire) found declines in the dunes sagebrush
lizard at these levels of mesquite density. Also, shinnery oak sand
dunes begin to lose their structure at mesquite densities above these
levels (USFWS 2024, p. 68). Most known dunes sagebrush lizard
observations have been within shinnery oak duneland.
Shinnery oak supportive habitat includes habitat around the
shinnery oak dunelands that the species may use for dispersal, feeding,
and sheltering; however, no breeding has ever been recorded in this
habitat. Shinnery oak supportive habitat also serves to stabilize
shinnery oak duneland habitat against threats from anthropogenic
disturbance. Dunes sagebrush lizards have been observed within this
habitat type, although to a lesser degree than in shinnery oak
dunelands. For a more detailed description, refer to the SSA report's
section 5.1.2 (USFWS 2024, pp. 89-91) and appendix B.
Commenters suggested that areas of open sand dunes are not
associated with the dunes sagebrush lizard. This assertion is
inconsistent with the data we have reviewed for the species. Open sand
dunes were included as suitable habitat in all of the habitat modeling
to date (i.e., Fitzgerald et al. 2011, entire; Johnson et al. 2016,
entire; Hardy et al. 2018, entire; Walkup et al. 2022, entire). As
noted in Fitzgerald et al. (2011, p. 3), an important component of the
habitat is open spaces clear of all vegetation, which are used for
foraging. In Walkup et al. (2022, p. 355), both models showed a high
probability of dunes sagebrush lizard occurrence in the large open sand
dunes of Winkler County, Texas. As noted in Hardy et al. (2018, pp. 21-
22), historical and current survey data have documented dunes sagebrush
lizards within the interior of large open dune fields having an absence
of vegetation. While both Hardy et al. (2018, p. 22) and Johnson et al.
(2016, p. 85) document the majority of species location data in
shinnery oak dunefields (which we include in the shinnery oak dunelands
habitat class), both note that this is not always the case and
observations are documented within the large open dunes in both New
Mexico and Texas. We agree that the dunes sagebrush lizard may not
always be present in a given suitable habitat class, but unoccupied
areas support future dispersal and formation of new populations (USFWS
2024, pp. 35-43) and provide structural support to the sand dunes that
the species depends on (USFWS 2024, pp. 28-35).
(19) Comment: Commenters questioned the reliability of the
geospatial analysis methods we used and requested validation exercises
be performed to confirm reliability. One commenter believed the Hardy
et al. (2018, entire) map should not have been used as a starting point
for the SSA habitat map because it is a pre-existing landcover map that
had minimal ground-truth analysis and the occurrence and suitability
assumptions in the Hardy et al. (2018, entire) map were based on
environmental data and expert opinion without the use of dunes
sagebrush lizard detection/non-detection data.
Our response: For species with limited data or where there are
geographical gaps in data collection, habitat-based maps provide a
mapping approach that is unbiased relative to available occurrence
data. Habitat-based mapping using environmental variables, previously
peer-reviewed literature, and expert input is a commonly used approach
in wildlife biology and conservation, especially for species, like the
dunes sagebrush lizard, that have limited survey data. Much of the
current observational data for the species, including the data that
were used to build the models underlying Walkup et al. (2022, entire),
are based on surveys where the methods employed have been inconsistent,
lack sufficient survey effort, and result in a low detection
probability, which can lead to a considerable error rate (Leavitt 2019,
pp. 6-11; USFWS 2024, p. 87). The habitat-based approach that we used
avoids these biases.
In addition, the Hardy et al. (2018, p. 10) effort did incorporate
survey data from several sources in their evaluation and categorization
of habitat classes. We also funded an accuracy assessment (Jensen and
Hardy 2021, entire) that evaluated the Hardy et al. (2018, entire) map.
While this accuracy assessment was not able secure property access and
is thus not a ground-based approach, it utilized ultra high-resolution
imagery obtained from small unmanned aerial system (sUAS) data
collected in 2017 and 2018. Assessment by an independent, experienced
analyst found an overall accuracy of the map to be over 70 percent,
which is considered an acceptable level of accuracy for remote sensing
(Jensen and Hardy 2021, entire).
(20) Comment: One commenter suggested that evidence of past
tebuthiuron (a broad-spectrum herbicide) treatment alone fails to
justify the Service's characterization of areas as degraded habitat.
The commenter claims that regardless of historical treatments, if areas
have the necessary landscape structures determined to be highly
important to the dunes sagebrush lizard, then they should not be
categorized as greatly reduced or nonexistent resources for breeding,
sheltering, feeding, and dispersal.
Our response: The degraded habitat classification describes a
condition where resources for the dunes sagebrush lizard are greatly
reduced. Specifically, constituent habitat elements that support
breeding, feeding, sheltering, and dispersal have been functionally
compromised. The degraded habitat class is a combination of (1) well
pad densities of 13 well pads or more per square mile and (2) areas of
herbicide treatment. Dunes sagebrush lizard abundance has been
documented to be between 70 and 94 percent lower in sites previously
treated with herbicides (e.g., tebuthiuron) as compared to non-treated
sites (Snell et al. 1994, p. 11). Further, more recent examples from
both aerial imagery and ground-based photos demonstrate the fundamental
[[Page 43757]]
alterations to the landscape where known treatments have occurred
(Johnson et al. 2016 e.g., pp. 22, 30, 31, 92-94). This demonstrates
the enduring impacts that herbicide treatments completed in the 1980s
and 1990s represent to the fragile shinnery oak duneland ecosystem and
thus dunes sagebrush lizard ecology.
In combination with data provided by the Bureau of Land Management
(BLM), the remote sensing analysis of current vegetation in New Mexico
(Johnson et al. 2016, entire) identified areas where herbicide
treatments have occurred. Within these areas, it is evident that the
vegetation community has typically transitioned to grasslands or
mesquite-grasslands and the sand dune structure necessary for the dunes
sagebrush lizard has been generally destabilized. Several similar areas
were noted in Texas but tended to be less pronounced; however, to be
consistent across the species' entire range, we contacted the Texas
State University team who conducted the habitat mapping in Texas (Hardy
et al. 2018, entire) to address potential additions to their original
habitat model. Based on aerial photo interpretation, we then submitted
a series of proposed changes (i.e., herbicide-treated areas) to the
Texas State University team for review and concurrence. We subsequently
incorporated the agreed-upon changes into the Texas habitat mapping.
(21) Comment: One commenter suggests the Service failed to include
two recent studies demonstrating that herbicide and grazing can restore
shinnery oak and shinnery-oak prairies (Zavaleta et al. 2016, entire;
Carroll et al. 2019, entire).
Our response: Zavaleta et al. (2016, entire) analyzed the impacts
of combinations of tebuthiuron treatments and moderate-intensity
grazing on shinnery oak prairie restoration. The goal of this study was
to reduce the proportion of shinnery oak, thereby increasing the
available forage for grazing cattle. Zavaleta et al. (2016, pp. 229-
231) deals with monotypic stands of shinnery oak that have a limited
availability of grasses and forbs but does not address shinnery oak
restoration in duneland complexes. In fact, Zavaleta et al. (2016, p.
227) point out that they deliberately avoided sand dunes and blowouts
``to minimize the potential for subsequent erosion.'' While the Service
acknowledges the beneficial contribution of science related to
restoration of prairie grasses and forbs, especially in the specific
context of improving grazing potential, this study does not address the
gap in scientific knowledge relating to restoration of shinnery oak
duneland complexes that would improve and expand degraded habitat for
the dunes sagebrush lizard.
Carroll et al. (2019, entire) conducted a 1-year laboratory study
on shinnery oak emergence and rhizome survival in which field-collected
samples were exposed to shade and cold treatments. The narrow scope of
the study prevents any broad assumptions or inference to be made about
large-scale shinnery oak restoration. The authors did not attempt to
demonstrate the potential for their methods to be used in an applied
context. Carroll et al. (2019, p. 632) note that shinnery oak samples
were collected from one location in western Oklahoma (Packsaddle
Wildlife Management Area), which may not be representative of the
entire range of shinnery oak, especially concerning native soils and
precipitation. In fact, the location of this study represents the
easternmost portion of the shinnery oak range, an area that receives
greater and more consistent precipitation with soils that are not
susceptible to erosion. These conditions are not representative of
conditions throughout the dunes sagebrush lizard's range in New Mexico
and Texas. Furthermore, Carroll et al. (2019, p. 634) assert that, in
nature, shinnery oak regeneration primarily occurs via rhizomatous
growth rather than sexual reproduction (i.e., acorns). The low survival
rate of rhizomes in their experiment prevented analysis on the effects
of temperature and shade on rhizome survival; therefore, the findings
do not support a basis for applied shinnery oak restoration within the
range of the dunes sagebrush lizard.
(22) Comment: Several comments suggested there is confusion
regarding the numbers of enrollment in conservation agreements across
the dunes sagebrush lizard's range. Several commenters stated that
there are several millions of acres of dunes sagebrush lizard habitat
enrolled in these agreements.
Our response: Through the public comment process, the Service
received updated enrollment numbers for existing CCA and CCAAs provided
by the commenter. We have updated the SSA report, and we consider that
current enrollment data in this final rule.
According to our habitat analysis, there are 505,857 hectares (1.25
million acres) of dunes sagebrush lizard habitat rangewide, which
include both duneland and supportive habitat. There are multiple
overlapping explanations for the discrepancy between the size of the
range of the dunes sagebrush lizard and the amount of land enrolled in
the agreements. In some cases, multiple species are covered in the
conservation agreements; as such, enrollment acreages may reflect areas
outside of the dunes sagebrush lizard's range. Additionally, multiple
types of enrollment (ranchers and oil and gas, surface and subsurface)
can occur on the same acreage. This could cause specific acres to be
enrolled, or to be considered to be enrolled, multiple times through
different enrollment types. Also, habitat for other species may be
enrolled in agreements. Finally, some of the CCAAs have enrolled areas
that are outside of the dunes sagebrush lizard's range, resulting in
total enrolled acreages greater than the acreage of dune sagebrush
lizard habitat being covered by those CCAAs. The numbers stated by the
permit holders are included in the SSA report, but there are not more
acres of habitat enrolled than are present across the range of the
dunes sagebrush lizard.
(23) Comment: Several commenters suggested the Service failed to
evaluate conservation efforts under the Policy for Evaluation of
Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100;
March 28, 2003), and the proposed listing fails to sufficiently account
for conservation agreements and their benefits to the dunes sagebrush
lizard now and into the future.
Our response: PECE was developed to assess whether formalized
conservation efforts that have not yet been implemented or demonstrated
effectiveness may make listing of a species under the Act unnecessary
or result in a species meeting the definition of a threatened species
instead of an endangered species. Indeed, an evaluation of conservation
efforts under PECE was used to support the withdrawal of the proposed
rule to list the dunes sagebrush lizard following the adoption of the
TCP in 2012 (see 77 FR 36872; June 19, 2012). Since then, the CCA/CCAA
in New Mexico and the TCP in Texas have been implemented for more than
a decade. The 2020 CCAA in Texas has had 3 years of implementation.
They all now have a documented track record both of implementation and
effectiveness, which we discuss in the SSA report (USFWS 2024, pp. 81-
87). Because these conservation efforts all have a documented track
record, a PECE analysis was unnecessary and inapplicable, and they were
considered in full in the SSA. We evaluated the performance, history,
and projected future contributions to the species' conservation of
these plans in our listing determination.
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An important aspect of our assessment is the quantification of
dunes sagebrush lizard habitat using remotely sensed, publicly
available data. These data indicate that large quantities of dunes
sagebrush lizard habitat have been degraded and much of the species'
range is fragmented by human development. Even with current
conservation efforts in place, we determined that the reduction and
fragmentation of habitat has elevated the risk of extinction for the
dunes sagebrush lizard. Further implementation of these conservation
efforts will be essential to protect the remaining habitat for the
species.
(24) Comment: Several commenters suggested that the listing
determination requires analysis under the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.).
Our response: Regulations adopted pursuant to section 4(a) of the
Act are exempt from the National Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.) and do not require an environmental analysis under
NEPA. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This includes listing, delisting, and reclassification rules,
as well as critical habitat designations. In a line of cases starting
with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the
courts have upheld this position.
(25) Comment: Several commenters requested an economic analysis
regarding the impacts of listing the dunes sagebrush lizard as an
endangered species.
Our response: Section 4(b)(1) of the Act (16 U.S.C. 1533(b)(1))
requires us to make our listing determinations ``solely on the basis of
the best scientific and commercial data available.'' Therefore, the Act
does not allow us to consider the economic impacts of a listing whether
over the short term, long term, or cumulatively. Please also see our
response to (2) Comment, above.
(26) Comment: We received several comments requesting that we
designate the portions of the dunes sagebrush lizard's range in New
Mexico and Texas as separate distinct population segments (DPSs) since
those portions of the range are isolated from each other.
Our response: Under the Act, any DPS of any species of vertebrate
fish or wildlife which interbreeds when mature is a listable entity
(see 16 U.S.C. 1532(16) and 1533(a)(1)). We have a policy that outlines
the criteria we use in determining whether an entity qualifies as a DPS
(61 FR 4722; February 7, 1996). The original petition to list the dunes
sagebrush lizard requested the listing at the scale of the full range
of the species; it did not request different listing actions for New
Mexico and Texas. Congress has indicated that we should designate DPSs
``sparingly and only when the biological evidence indicates that such
action is warranted'' (Senate Report 151, 96th Congress, 1st Session).
Therefore, based on the intent of the original petition and Congress,
we determined that identifying separate population segments is not
appropriate in this situation.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
dunes sagebrush lizard is presented in the SSA report (version 1.3;
USFWS 2024, pp. 16-42). Since the publication of the July 3, 2023,
proposed rule (88 FR 42661), we updated the SSA report to provide the
most current information available on the dunes sagebrush lizard. We
updated enrollment figures for the CCA/CCAAs in New Mexico and Texas,
as well as providing clarification on the geographical coverage of
these enrollments (USFWS 2024, pp. 84-87). During the proposed rule's
public comment period, we received new information on effective
population estimates for the dunes sagebrush lizard (USFWS 2024, pp.
40-41) and several threats, notably groundwater pumping, sand mines,
and human population growth (USFWS 2024, pp. 75-80, 127). This finding
takes into account those changes made in the SSA report in reaching the
conclusion that the dunes sagebrush lizard is at risk of extinction.
The dunes sagebrush lizard is a species of spiny lizard endemic to
the shinnery oak dunelands and shrublands of the Mescalero and Monahans
Sandhills in southeastern New Mexico and western Texas. Most dunes
sagebrush lizard adults live for 2 to 4 years and reproduce in the
spring and summer (Degenhardt and Jones 1972, p. 216; Cole 1975, p.
292; Snell et al. 1997, p. 9; Fitzgerald and Painter 2009, p. 200;
Hibbitts and Hibbitts 2015, p. 156). Males are territorial and compete
to attract and mate with females (Fitzgerald and Painter 2009, p. 200).
Females establish nests underground in shinnery oak duneland
vegetation, where they lay an average of five eggs per clutch and lay
either one or two clutches in a year (Hibbitts and Hibbitts 2015, p.
156; Hill and Fitzgerald 2007, p. 30; Ryberg et al. 2012, p. 583).
Hatchlings emerge approximately 30 days after eggs are laid (Ryberg et
al. 2012, p. 583; Fitzgerald and Painter 2009, p. 200). Eggs and young
dunes sagebrush lizards are susceptible to natural mortality from
environmental stress and predation.
This species is a habitat specialist that depends on shinnery oak
duneland habitat to provide appropriate substrate for nests, cover for
young, and food resources as juvenile lizards mature into adults
(Fitzgerald et al. 1997, p. 4; Hibbitts et al. 2013, p. 104; Hardy et
al. 2018, p. 10). The Mescalero and Monahans Sandhills ecosystems are
composed of ancient sand dune fields formed and maintained by wind and
shifting sand, and they are partially stabilized by shinnery oak
(Ryberg et al. 2015, pp. 888, 893; Walkup et al. 2017, p. 2). These
ecosystems are characterized by a patchy arrangement of narrow, almost
linear sand dunes embedded in a matrix of shinnery oak shrubland flats
(Fitzgerald and Painter 2009, p. 199; Ryberg et al. 2015, p. 890).
Within the sand dunes themselves, dunes sagebrush lizards rely on open
dune blowouts, which typically form on the leeward side of established
vegetation (Walkup et al. 2022, pp. 13-14). Dune blowouts are bowl-
shaped depressions in the sand dunes that form when disturbance removes
stabilizing vegetation.
The landscape created by the shinnery oak duneland ecosystem is a
spatially dynamic system in which the location and presence of sand
dunes is not static and shifts over time (Dzialak et al. 2013, entire).
Spatial variation within habitat patches can drive regional population
dynamics by shaping movement, behavior, and habitat selection (Ryberg
et al. 2015, p. 888). Dunes sagebrush lizards form small, localized
populations called neighborhoods that are interconnected through
dispersal (Ryberg et al. 2013, entire). Long-term population stability
is maintained through interconnected neighborhoods experiencing
localized colonization and extirpation (Fitzgerald et al. 1997, p. 28;
Fitzgerald et al. 2005, p. 1).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. On April 5, 2024, jointly with the National Marine
Fisheries Service, the Service issued a
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final rule that revised the regulations in 50 CFR 424 regarding how we
add, remove, and reclassify endangered and threatened species and the
criteria for designating listed species' critical habitat (89 FR
24300). On the same day, the Service published a final rule revising
our protections for endangered species and threatened species at 50 CFR
17 (89 FR 23919). These final rules will be in effect on May 6, 2024
prior to the effective date of this final rule for the dunes sagebrush
lizard. Our analysis for this decision applied the 2024 regulations.
Given that we proposed listing this species under our prior regulations
(revised in 2019), we have also undertaken an analysis of whether our
decision would be different if we had continued to apply the 2019
regulations and we concluded that the decision would be the same. The
analyses under both the regulations currently in effect and the 2019
regulations are available on https://www.regulations.gov.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(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.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The
foreseeable future extends as far into the future as the Services can
make reasonably reliable predictions about the threats to the species
and the species' responses to those threats. The Services will describe
the foreseeable future on a case-by-case basis, using the best
available data and taking into account considerations such as the
species' life-history characteristics, threat-projection timeframes,
and environmental variability. The Services need not identify the
foreseeable future in terms of a specific period of time.
When evaluating the status of the species, we must review the
degree of certainty and foreseeability concerning each of the threats
to the species and the species' responses to those threats. We must
assess the nature of the best scientific and commercial data available
concerning each threat and the degree to which the data allow us to
make reliable predictions. Predictions about the occurrence of an event
or a response in the future are inherently uncertain. We look not only
at the foreseeability of threats, but also at the foreseeability of the
impact of the threats on the species. Data that are typically relevant
to assessing the species' biological response include species-specific
factors such as lifespan, reproductive rates or productivity, certain
behaviors, and other demographic factors. In some cases, a species'
responses to a foreseeable threat will manifest immediately; in other
cases, it may be multiple generations before a foreseeable threat's
effect on the species can be observed. But in each case, we must be
able to make reliable predictions about the future impact to the
species from the foreseeable threat. The further into the future that
we assess threats to a species or a species' responses to threats, the
greater the burden on the Services to explain how we can conclude that
those future threats or responses remain foreseeable--that is, that our
assessments of them are based on reasonably reliable predictions out to
that point in the future. In making these predictions, we must avoid
speculation and presumption. Thus, for a particular species, we may
conclude, based on the extent or nature of the best data available,
that a trend has only a certain degree or period of reliability, and
that to extrapolate the trend beyond that point would constitute
speculation. The foreseeable future extends only so far as those
predictions are reliable. ``Reliable'' does not mean ``certain''; it
means sufficient to provide a reasonable degree of confidence in the
prediction, in light of the conservation purposes of the Act.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess the dunes sagebrush lizard's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species
[[Page 43760]]
to withstand catastrophic events (for example, droughts, large
pollution events); and representation is the ability of the species to
adapt to both near-term and long-term changes in its physical and
biological environment (for example, climate conditions, pathogens). In
general, species viability will increase with increases in resiliency,
redundancy, and representation (Smith et al. 2018, p. 306). Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full updated SSA report (version 1.3) can be found
at Docket No. FWS-R2-ES-2022-0162 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future conditions, to assess the species' overall viability
and the risks to that viability.
Species Viability
The key requirement for long-term viability of the dunes sagebrush
lizard is large, intact, shinnery oak duneland ecosystems that
facilitate completion of the species' life history and maintain healthy
populations (Texas A&M University (TAMU) 2016, p. 3). Shinnery oak
duneland habitat provides the primary features necessary to support
neighborhoods of dunes sagebrush lizards, particularly sand dune
blowouts that are essential for reproduction and other aspects of the
species' life history (Fitzgerald et al. 1997, p. 4; Hibbitts et al.
2013, p. 104; Hardy et al. 2018, p. 10; Walkup et al. 2022, pp. 13-14).
The shinnery oak duneland and shrubland habitat that surrounds these
blowouts are important to facilitate dispersal and maintain the
structure of the sand dune formations (Machenberg 1984, p. 23; Kocurek
and Havholm 1993, pp. 401-402; Gucker 2006, p. 14; Dhillion and Mills
2009, p. 264).
Since the Mescalero and Monahans Sandhills are dynamic ecosystems,
habitat patches for the dunes sagebrush lizard can shift over time
(Fitzgerald et al. 1997, p. 28; Dzialak et al. 2013, pp. 1371-1372,
1379-1383; Hardy et al. 2018, p. 27). Long-term resiliency of the dunes
sagebrush lizard is maintained through interconnected neighborhoods
experiencing localized colonization and extirpation (Ryberg et al.
2013, p. 1). A dunes sagebrush lizard population, even within a
contiguous patch of habitat, is itself composed of aggregations of
localized neighborhoods that interact with each other. That means dunes
sagebrush lizards may not occur in all areas of suitable habitat due to
natural extinction-colonization dynamics (Fitzgerald et al. 1997, p.
28; Painter et al. 1999, p. 51; Fitzgerald et al. 2005, p. 1), and the
current state of occupancy may not necessarily reflect the future state
at a site (Walkup et al. 2018, p. 503). Thus, it is important to
include the consideration of currently unoccupied but potentially
suitable habitat patches within the species' range, especially since
dispersal rates and their mechanisms are not well understood (Painter
et al. 1999, p. 36; Hardy et al. 2018, p. 20). Scaling up to the
species' range, the dunes sagebrush lizard is subdivided into three
primary evolutionary lineages that are spatially discrete and have
evolved in isolation since their initial founding (Chan et al. 2009, p.
136; Chan et al. 2020, pp. 6-7). Two are found in Mescalero Sandhills,
with one occurring in the northern portion of the sandhills (Northern
Mescalero) and the second in the southern portion (Southern Mescalero).
The third is exclusive to the Monahans Sandhills of west Texas. Despite
a narrow contact zone between the Northern and Southern Mescalero
lineages (Chan et al. 2020, p. 7), there is no evidence of intermixing
or gene flow between these lineages. These three lineages cover
different portions of the species' range and, therefore, are subject to
different environmental conditions. For example, a latitudinal gradient
in precipitation and temperature exists from north to south within the
Mescalero and Monahans Sandhills. In general, moving 1[deg] latitude
from north to south across the dunes sagebrush lizard's range results
in a mean annual maximum temperature increase of 1.1 [deg]C (2 [deg]F)
and a total annual precipitation decrease of 5 centimeters (cm) (2
inches (in)) (Leavitt 2019, pp. 7-8; USFWS 2024, pp. 45-47). Potential
evapotranspiration also increases from north to south (Holliday 2001,
p. 101). The combination of isolation and environmental variation has
likely facilitated adaptive differences between these lineages.
These lineages are further subdivided into at least 10 different
genetic groups, delineated primarily by mitochondrial DNA haplotypes
and corroborated by nuclear microsatellite data (Chan et al. 2014, p.
9; Chan et al. 2020, entire). These groups correspond to notable breaks
and pinch points in the dune formations and reflect historical
differentiation based on limited connectivity between contiguous
habitat patches (Chan et al. 2020, p. 2). Within these groups, there
appears to be varying levels of connectivity and gene flow, with
evidence of isolation by distance and resistance in several areas in
New Mexico (Chan et al. 2014, pp. 33-41; Chan et al. 2017, pp. 9-22).
Despite evidence of some gene flow between these groups based on
nuclear microsatellite data (Chan et al. 2020, p. 7), they appear to
function as independent units with intermixing restricted to narrow
contact zones. Thus, there is limited potential for natural
recolonization should one or more of these groups become extirpated.
Threats
We identified risk factors that have influenced the dunes sagebrush
lizard and its habitat in the past and may continue to do so into the
future. These include habitat destruction, modification, and
fragmentation (Factor A); predation (Factor C); human-caused mortality
(Factor E); invasive species (Factors A and E); pollution (Factors A
and E); groundwater depletion (Factor A); and extreme weather and
climate change (Factors A and E) (USFWS 2024, pp. 53-85). However, in
this final rule, we will discuss only those factors in detail that
could meaningfully impact the status of the species. Risk factors such
as predation, pollution, invasive species, groundwater depletion, and
human-caused mortality have more localized effects on the dunes
sagebrush lizard, but, on their own, they are unlikely to significantly
affect overall species viability. The primary risk factors affecting
the current and future status of the dunes sagebrush lizard are habitat
loss, fragmentation, and
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degradation associated with oil and natural gas production and frac
sand mining. Climate change is also likely to lead to more extreme
weather events, particularly drought, that will further impact the
dunes sagebrush lizard and its habitat. For a detailed description of
the threats analysis, please refer to the SSA report (USFWS 2024, pp.
53-85).
Habitat Destruction, Modification, and Fragmentation
Due to its reliance on a very specific and restricted habitat type,
the dunes sagebrush lizard is highly susceptible to habitat loss and
fragmentation (Walkup et al. 2017, p. 2). At the individual level, the
removal of shinnery oak vegetation and destruction of sand dunes has
multiple negative effects on the dunes sagebrush lizard. The species is
dependent on this habitat type for all aspects of its life history,
including breeding, feeding, and sheltering (Young et al. 2018, p.
906). Shinnery oak vegetation provides sheltering habitat for
thermoregulation and refuge from potential predators (Machenberg 1984,
pp. 16, 20-21; Degenhardt et al. 1996, p. 160; Snell et al. 1997, pp.
1-2, 6-11; Fitzgerald et al. 1997, p. 26; Peterson and Boyd 1998, p.
21; Painter et al. 1999, pp. 1, 27; Sartorius et al. 2002, pp. 1,972-
1,975; Painter 2004, pp. 3-4; Dhillion and Mills 2009, p. 264; Leavitt
and Acre 2014, p. 700; Hibbitts and Hibbitts 2015, p. 157). It also
provides habitat for the prey (e.g., insects and other terrestrial
invertebrates) consumed by the dunes sagebrush lizard (Degenhardt et
al. 1996, p. 160; Degenhardt and Jones 1972, p. 217; Fitzgerald and
Painter 2009, p. 199; Leavitt and Acre 2014, p. 700). Dunes sagebrush
lizards move exclusively through shinnery oak vegetation to disperse
between the sand dune blowouts that support nesting and reproduction
(Fitzgerald et al. 1997, p. 24). Since the dunes sagebrush lizard
breeds exclusively in sand dune blowouts, loss of sand dunes eliminates
breeding habitat for the species.
At the population level, habitat destruction and fragmentation can
affect the dunes sagebrush lizard's viability in multiple ways. Loss of
habitat can lead to the reduction or even loss of populations, and
those populations that do remain are likely smaller and more isolated,
elevating their vulnerability to stochastic events (Henle 2004, p. 239;
Devictor et al. 2008, p. 511; Hibbitts et al. 2013, p. 111; Leavitt and
Fitzgerald 2013, p. 6; Walkup et al. 2017, p. 2). Fragmentation may
also result in degradation of dune-blowout landforms beyond the
immediate footprint of developed areas (Leavitt and Fitzgerald 2013, p.
9; Walkup et al. 2017, p. 11). Fragmented sites are often of lower
quality, possessing fewer, more dispersed large dune blowouts as well
as more large patches of flat open sand and barren ground (Leavitt and
Fitzgerald 2013, pp. 9-10), which are less likely to support robust
populations.
As populations and habitat patches disappear across the landscape,
there are fewer ``stepping-stones'' to connect remaining populations
through dispersal and colonization (Young et al. 2018, p. 910). Dunes
sagebrush lizards are not known to disperse across large expanses of
unsuitable habitat. Thus, a given population may have little chance of
receiving immigrating individuals across areas where suitable habitat
has been removed (Fitzgerald et al. 1997, p. 27). Movements of
individual dunes sagebrush lizards between populations are hindered or
precluded by fragmentation and do not occur at rates sufficient to
sustain demographics necessary to prevent localized extirpations
(Leavitt and Fitzgerald 2013, p. 11; Ryberg et al. 2013, p. 4; Walkup
et al. 2017, p. 12; Young et al. 2018, p. 910). Over time,
fragmentation isolates populations and results in a progressive decline
in population abundance until, ultimately, the species becomes
extirpated (Leavitt and Fitzgerald 2013, p. 12). Loss of habitat may be
irreversible: once shinnery oak dunelands are disturbed, these
landforms tend to shift to alternative stable states that are not prone
to self-regeneration through ecological succession (Ryberg et al. 2015,
p. 896; Johnson et al. 2016, p. 34).
Oil and natural gas production--The dunes sagebrush lizard's range
overlaps with the Permian Basin, a geologic province that hosts
multiple basins each with multiple stratigraphic units from which
hydrocarbons, water, or minerals are extracted. Oil and gas development
involves many activities, such as surface exploration, exploratory
drilling, oil field development, and facility construction, including
access roads, well pads, and operation and maintenance. These
activities can all result in direct habitat loss by disturbance and
removal of shinnery oak duneland. Indirect habitat loss occurs from
fragmentation of larger habitat into smaller parcels of suitable
habitat. As habitat becomes fragmented, the overall stability of the
shinnery oak sand dune formations decreases, promoting wind erosion and
deflation of the dunes (Carrick and Kruger 2007, pp. 771-772; Breckle
et al. 2008, pp. 442, 453-454; Mossa and James 2013, pp. 75, 88, 92;
Engel et al. 2018, pp. 1-13; Forstner et al. 2018, pp. 3-21).
Fragmentation can also result in edge effects in which the habitat
directly adjacent to the converted areas is of lower quality. For
example, habitat fragmentation can increase air temperatures and solar
radiation, along with reducing the availability of microhabitats that
can serve as thermal refugia for the dunes sagebrush lizard (Jacobson
2016, pp. 3-4, 10).
Several studies have demonstrated a negative relationship between
oil well pad density and the number of dunes sagebrush lizards present
at a site (Sias and Snell 1998, p. 1; Leavitt and Fitzgerald 2013, p.
9; Ryberg et al. 2015, p. 893; Johnson et al. 2016, p. 41; Walkup et
al. 2017, p. 9). A regression analysis that predicted a 25 percent
reduction in the abundance of dunes sagebrush lizards at well pad
densities of 13.64 per square mile, and a 50 percent reduction at well
pad densities of 29.82 well pads per square mile (Sias and Snell 1998,
p. 23). Based on that study, the proposed recommendation became that
well pad densities in New Mexico be limited to 13 well pads per square
mile (Painter et al. 1999, p. 3). Further research found that areas
with 13 or more well pads per square mile have considerably lower
abundance of dunes sagebrush lizards than unfragmented sites (Leavitt
and Fitzgerald 2013, p. 9). Further, high well pad and road densities
at the landscape scale result in smaller, fewer, and more dispersed
sand dune blowouts that are less suited to dunes sagebrush lizard
persistence (Leavitt and Fitzgerald 2013, p. 9). Marked declines in
dunes sagebrush lizard occurrence in New Mexico have also been observed
at well pad densities of 5 and 8 well pads per square mile, with no
lizards found at well pad densities greater than 23 well pads per
square mile (Johnson et al. 2016, p. 41). These results support the
recommendation that 13 well pads per square mile should be considered
``degraded'' habitat as a standard in the scientific literature. This
effect extends to population persistence, as research has found that
dunes sagebrush lizard populations have a relatively high
susceptibility to local extinction in landscapes with 13 or more well
pads per square mile (Walkup et al. 2017, p. 10). The network-like
development of well pads and their connecting roads both isolate
populations and disrupt the underlying geomorphologic processes
required to maintain the shinnery oak dune formations.
In many areas of oil and gas development, caliche roads are
constructed in a grid-like network (Young et al. 2018, p. 6). Roads
fragment
[[Page 43762]]
habitat and impede dunes sagebrush lizard movement, reducing access to
habitat, mating opportunities, and prey, and decreasing population size
and the likelihood of population persistence. Both field experiments
and radio tracking studies have revealed that dunes sagebrush lizards
will avoid crossing caliche roads (Hibbitts et al. 2017, p. 197; Young
et al. 2018, p. 910).
Frac sand mining--Frac sand is a naturally occurring sand used as a
proppant (i.e., a solid material used to keep fissures beneath the
Earth's surface open) during hydraulic fracturing of oil and gas wells
to maximize production of unconventional reservoirs (Mossa and James
2013, pp. 76-79; Benson and Wilson 2015, pp. 1-50; Engel et al. 2018,
pp. 1-13; Forstner 2018, pp. 1-19; Mace 2019, entire). Sand mining
involves the use of heavy equipment and open-pit methods to
mechanically remove vegetation and fine sediments from near-surface
deposits of sand (e.g., sand dunes and sand sheets) (Breckle et al.
2008, pp. 453-454; Benson and Wilson 2015, pp. 7-8, 49; Mossa and James
2013, pp. 76-80; Forstner et al. 2018, pp. 2-17; Mace 2019, pp. 42-61).
Construction of sand mine facilities, which include processing plants
and related infrastructure, in dunes sagebrush lizard habitat removes
shinnery oak and degrades and compacts shinnery oak dunelands. The sand
mine facilities replace the shinnery oak dunelands with paved surfaces,
buildings, open pit mines, spoil areas, processing pools, and other
structures (Boyd and Bidwell 2002, p. 332; Ryberg et al. 2015, pp. 888-
890, 895-896; Forstner et al. 2018, pp. 1-5). Sand mining operations in
dunes sagebrush lizard habitat can remove entire shinnery oak duneland
landforms, or portions thereof; alter dune topography; and produce
large, deep, unnatural pits in the land surface (Breckle et al. 2008,
pp. 453-454; Mossa and James 2013, pp. 77-79, 85; Engel et al. 2018,
pp. 1-13; Pye 2009, pp. 361-362; Forstner et al. 2018, pp. 2-21). The
effects of sand mining can extend beyond the footprint of the actual
mine itself. Removal of a portion (or portions) of a sand dune promotes
the loss and degradation of the entire landform (i.e., the remaining
unmined segments) by undermining its stability and promoting wind
erosion and deflation (Carrick and Kruger 2007, pp. 771-772; Breckle et
al. 2008, pp. 442, 453-454; Mossa and James 2013, pp. 75, 88, 92; Engel
et al. 2018, pp. 1-13; Forstner et al. 2018, pp. 3-21).
Frac sand mining is a recent occurrence in this region: the first
sand mine was developed in early 2017, and by the end of 2018, 17
facilities had registered with the Texas Commission on Environmental
Quality for operations in the region (Mace 2019, pp. 1, 42-43, 78).
Sand mines have only been developed in the Texas portion of the dunes
sagebrush lizard's range, specifically the Monahans Sandhills.
Currently, most mines are in Winkler and Ward Counties; these two
counties contain 11 and 2, respectively, of the 17 existing facilities
(Mace 2019, pp. 43-44, 56; USFWS 2024, pp. 108-109). Sand mining is
expected to continue in these counties given the current location and
density of mines in the counties, the average rates of surface mining,
and the anticipated plans and growth of the oil and gas industry in the
area (Mace 2019, pp. 42-54; Benson and Wilson 2015, pp. 1-8, 54-57;
Latham and Watkins 2020, pp. 12-13).
Extreme Weather and Climate Change
The dunes sagebrush lizard occurs in a semiarid climate that
experiences extreme heat and droughts, but the species is adapted to
contend with such environmental variability. In the 1920s and 1930s,
northern shinnery oak ecosystems averaged 1 to 2 years of drought every
10 years, and southern portions of those ecosystems averaged 2 to 3
years of drought every 10 years (Peterson and Boyd 1998, p. 14). In the
past 20 years, moderate to exceptional drought has occurred every 1 to
2 years, in the southern and northern shinnery oak ecosystems (U.S.
Drought Monitor 2022, unpaginated). Climate change is likely to
increase the frequency and severity of drought in this region since, on
average, surface air temperatures across Texas are predicted to
increase by 3 [deg]C (5.4 [deg]F) by 2099 (Jiang and Yang 2012, p.
238). In the southwest United States, temperature increases are
predicted to be concentrated in the summer months, and in Texas, the
number of days exceeding 35 [deg]C (95 [deg]F) may double by 2050
(Kinniburgh et al. 2015, p. 8). According to climate change
predictions, west Texas will experience greater variability in seasonal
precipitation patterns, with the greatest net loss experienced in
winter (Jiang and Yang 2012, p. 238).
The impacts of extreme heat and drought on individual dunes
sagebrush lizards is relatively unknown. Drought could impact food
resources, which would then impact lizard productivity. The marbled
whiptail (Aspidoscelis marmoratus), another lizard species found in the
Monahans Sandhills, showed a decline in density during a period of
drought (Fitzgerald et al. 2011, p. 30). If drought restricts available
food resources, it could negatively affect the dunes sagebrush lizard's
recruitment and survival.
The relationship between these weather events and dunes sagebrush
lizard habitat (i.e., shinnery oak) is more established. While shinnery
oak is highly adapted for arid conditions, prolonged periods of drought
inhibit growth and reproduction. For example, during drought, shinnery
oak can lose its leaves or not even leaf-out (Peterson and Boyd 1998,
p. 9). Additionally, recent droughts have delayed typical spring leaf-
out for shinnery oak, with leaf-out instead occurring with the seasonal
summer monsoons (Johnson et al. 2016, p. 78). The timing of the spring
leaf-out is important, as it provides shelter for adult dunes sagebrush
lizards as they become active in the spring and food resources for
invertebrates that are consumed by dunes sagebrush lizards.
Furthermore, continued alterations to the landscape are likely to
exacerbate the impacts of climate change on the dunes sagebrush lizard.
For example, habitat fragmentation can already increase air
temperatures and solar radiation, along with reducing the availability
of microhabitats that can serve as a thermal refugia (Jacobson 2016,
pp. 3-4, 10). Habitat fragmentation also restricts natural patterns of
dispersal and colonization that could buffer against extreme weather
impacts.
Conservation Efforts and Regulatory Mechanisms
Because we are considering the best available information and
because the discussion above primarily addresses the viability of the
dunes sagebrush lizard in relation to the threats and factors affecting
its viability, here we will discuss regulatory mechanisms and
conservation actions that potentially have influenced or will influence
the current and future viability of the species.
New Mexico
The dunes sagebrush lizard is listed as an endangered species
within the State of New Mexico by the New Mexico Department of Game and
Fish, which makes it ``unlawful for any person to take, possess,
transport, export, process, sell or offer for sale or ship'' the
species (17-2-41 C. New Mexico Statutes Annotated 1978). It is
considered a sensitive species by the BLM, which means the agency will
work cooperatively with other Federal and State agencies and
nongovernmental organizations to proactively conserve these species and
ensure that activities on public lands do not contribute to the need
for their listing under the
[[Page 43763]]
Endangered Species Act. In 2008, the BLM developed a Special Status
Species Resource Management Plan Amendment (hereafter Amendment) (BLM
2008, entire) to guide management of lands within dunes sagebrush
lizard habitat in New Mexico. The plan addresses concerns and threats
of oil and gas development and shinnery oak removal due to herbicide
spraying by outlining protective measures and basic guidelines for
development in the vicinity of dunes sagebrush lizard habitat. The plan
provides for specific conservation requirements, lease stipulations,
and the removal of 42,934 ha (106,091 ac) of dunes sagebrush lizard
habitat from future oil and gas leasing (BLM 2008, entire). Since the
Amendment was approved in 2008, the Bureau of Land Management has
closed approximately 120,000 ha (300,000 ac) to future oil and gas
leasing and closed approximately 345,000 ha (850,000 ac) to wind and
solar development (BLM 2008, p. 3). From 2008 to 2020, the BLM has
reclaimed 1,416 ha (3,500 ac) of abandoned well pads and associated
roads. Additionally, the BLM continues to implement control efforts for
invasive mesquite.
Following approval of the Amendment, a team including the Service,
BLM, Center of Excellence, and participating cooperators drafted both a
CCA and CCAA (Center of Excellence (CEHMM) 2008, entire) for the dunes
sagebrush lizard and lesser prairie-chicken (Tympanuchus
pallidicinctus) in New Mexico. The CCA addresses the conservation needs
of the dunes sagebrush lizard and lesser prairie-chicken on BLM lands
in New Mexico by attempting habitat restoration and enhancement
activities, conducting activities like removing unused well pads, and
minimizing habitat degradation. The CCAA was developed to facilitate
conservation actions for the two species on private and State lands.
The CCA and CCAA are umbrella agreements under which individual
entities participate. In New Mexico, an estimated 35 percent of the
occupied range of the dunes sagebrush lizard is on privately owned and
State-managed lands. There are no local or State regulatory mechanisms
pertaining to the conservation of dunes sagebrush lizard habitat on
private or State lands in New Mexico, nor is there New Mexico State
Land Office policy in place to protect sensitive species. The only
mechanism for the preservation of dunes sagebrush lizard habitat on
lands administered by the New Mexico State Land Office is by having
those lands enrolled in the CCAA.
Since the CCA and CCAA were finalized in December 2008, 40 oil and
gas companies and 37 ranchers have enrolled a total of 218,144 ha
(539,046 ac) of shinnery oak duneland habitat and 258,018 ha (637,577
ac) of the surrounding supportive matrix habitat. The total area of
habitat enrolled by industry, private landowners, New Mexico Department
of Game and Fish, and New Mexico State Land Office currently covers
around 85 percent of the range of the dunes sagebrush lizard within New
Mexico. By enrolling lands in these agreements, participants agree to
avoid disturbing shinnery oak duneland habitat, forgo spraying of
herbicides on shinnery oak, and relocate projects to avoid dunes
sagebrush lizard habitat (CEHMM 2016, pp. 1-2). We received updated
enrollment numbers for 2023, however, these updated numbers were not
broken out by habitat type and ownership type. Updated enrollment
numbers include a total of 104 ranches (33 new since 2022), 13 parcel-
by-parcel (1 new since 2022), 50 all-activities, and 31 linear
development enrollees. Areas enrolled as of 2023 includes 946,810 ha
(2,339,619 ac) for ranching and 1,314,722 ha (3,314,722 ac) for
industry, resulting in a total of 2,288,231 ha (5,654,341 ac). It is
important to note that these enrollment numbers are for the joint
lesser prairie chicken-dunes sagebrush lizard programs, so enrollee
numbers and acreage do not necessarily reflect dunes sagebrush lizard-
specific coverage.
Texas
In Texas, the dunes sagebrush lizard is listed as a ``species of
greatest conservation need'' by the Texas Parks and Wildlife
Department. This designation does not afford the species any legal
protection, but it guides nongame conservation efforts, including
regional efforts to conserve these species. Additionally, there are no
local or other State mechanisms regulating impacts or pertaining to the
conservation of dunes sagebrush lizard habitat on private lands. Nearly
all dunes sagebrush lizard habitat in Texas is privately owned.
Monahans State Park is the only public land on which the dunes
sagebrush lizard is known to exist in Texas.
Texas Conservation Plan--In 2011, the Texas Comptroller of Public
Accounts (Comptroller) led a group of stakeholders to develop the TCP
for the dunes sagebrush lizard, which finalized a CCAA in 2012. The TCP
authorizes impacts to dunes sagebrush lizard habitat (i.e., incidental
take of lizards) resulting from oil and gas development, agriculture,
and ranching activities (i.e., covered activities) and established a
conservation program focused on avoiding these activities in dunes
sagebrush lizard habitat. If avoidance of habitat cannot be
accomplished, participants enrolled in the TCP must implement
conservation measures that minimize and mitigate for habitat impacts
via restoration or enhancement of dunes sagebrush lizard habitat (Texas
Comptroller of Public Accounts (CPA) 2012, entire).
Approximately 1,847 ha (4,564 ac) of dunes sagebrush lizard habitat
was negatively impacted by the TCP between 2012 and 2018. However,
after 6 years of implementation, the Comptroller sought to revise the
TCP to address issues preventing the plan from achieving its
conservation and protection goals (Gulley 2017a, entire; Gulley 2017b,
entire; Koch 2018, entire; Hegar 2018a, entire; Hegar 2018b, entire;
Gulley 2018a, entire; Gulley 2018b, entire; Hegar 2018d, entire; CPA
2019, entire). In 2018, the Comptroller submitted these proposed
revisions to the Service in the form of a new CCAA to replace the
existing TCP and subsequently ended their administration of the permit
(Ashley 2018a, entire; Ashley 2018b, entire; Hegar 2018a, entire; Hegar
2018b, entire; Hegar 2018c, entire). The Service did not approve the
proposed new CCAA submitted by the Comptroller. Rather, in 2020, the
Service revised and transferred the permit for the TCP to a new permit
holder, the American Conservation Foundation (Falen 2019, entire;
Fleming 2020a, entire; Fleming 2020b, entire). Of the 29 participants
enrolled in the 2012 TCP, only 8 expressed interest in maintaining
enrollment under the revised 2020 TCP. Subsequently, the area enrolled
in the TCP decreased significantly, from 120,193 ha (297,004 ac) in
2012, to 28,489 ha (70,397 ac) in 2020 (an approximately 76 percent
decrease). Per the TCP 2023 annual report, as of December 31, 2023, a
total of seven participants are enrolled in the TCP. The total acreage
enrolled by these seven participants is 135,296 ha (334,323 ac). Of
this total acreage, 20,565 ha (50,816 ac) are located in dunes
sagebrush lizard habitat, according to the range maps used by the TCP
(Fitzgerald et al. 2011, p. 10) An additional 6,132 ha (15,153 ac) are
located in the 200-meter buffer of dunes sagebrush lizard habitat.
However, acreage can be enrolled separately as surface and subsurface,
and the same acreage can be enrolled by different enrollees and follow
different conservation measures for different activities in the same
location.
[[Page 43764]]
Additionally, while conservation measures are a requirement of
participation in the certificates of inclusion in Texas, we are unsure
of the extent of conservation measure implementation and the locations
of all areas where conservation is occurring because specific data on
enrolled locations are not available. The Service remains in
discussions with the American Conservation Foundation and remaining
participants to consider and implement changes to the TCP.
2020 CCAA--In 2020, a separate applicant, led primarily by mining
companies, applied for a separate CCAA that covers oil and gas
activities, sand mining, linear infrastructure (such as utilities and
pipelines), wind and solar energy development, local governments, and
agriculture and ranching (Canyon Environmental, LLC 2020, entire). The
Service approved this CCAA in 2021. Using habitat as a surrogate for
quantifying the amount of incidental take, the total amount of take
authorized during the permit term (23 years) is 14,140 ha (34,940 ac).
Because it was not possible to determine how much dunes sagebrush
lizard habitat would be disturbed or destroyed by the 2020 CCAA's
participants (versus nonparticipants), this estimate, which was
formulated based on a variety of factors (Canyon Environmental, LLC
2020, pp. 45-49), is the expected total impacts to habitat in Texas
over the permit term, including from the TCP.
The 2020 CCAA describes the goal and objectives of the CCAA
conservation strategy. The one overarching goal is to contribute,
directly or indirectly, to the conservation of the dunes sagebrush
lizard by reducing or eliminating threats on enrolled properties. This
goal is then followed by a list of objectives that emphasize, in part,
conserving dunes sagebrush lizard habitat, restoring and reclaiming
impacted areas, reducing habitat fragmentation, and addressing surface
impacts from the development of stratified mineral estates. Each
industry has various avoidance and minimization measures that they are
encouraged to implement. Each industry also has various fees based on
the dunes sagebrush lizard habitat type to be impacted. These fees are
expected to support administration of the 2020 CCAA, as well as
conservation actions and research.
The permit was issued on January 20, 2021, and the permit
administrator is currently coordinating implementation with the
Service. As of February 29, 2024, we received seven certificates of
inclusion for the 2020 CCAA from the Permit holder, which enrolled a
total of 99,616 ha (403,232 ac). Of these 99,616 ha (403,232 ac), only
8,417 ha (34,061 ac) are reported to be in dunes sagebrush lizard
habitat as mapped by Hardy et al (2018, entire). While each certificate
of inclusion has a requirement for implementing avoidance and
conservation measures, no specific actions have been reported to date;
thus, we remain unaware of the specific conservation measures being
implemented by each participant per their certificate of inclusion.
Current Condition
We assessed the current condition of the dunes sagebrush lizard
using geospatial analysis to estimate the current quantity and quality
of available habitat (USFWS 2024, pp. 86-109). Our approach was rooted
in the findings by numerous studies that the dunes sagebrush lizard
experiences reductions in abundance and density as habitat is lost or
becomes disturbed (Leavitt and Fitzgerald 2013, p. 11; Ryberg et al.
2013, p. 4; Walkup et al. 2017, p. 12; Young et al. 2018, p. 910). The
results of our geospatial analysis indicate that across our analysis
area there is approximately 210,506 hectares (ha) (520,161 acres (ac))
classified as shinnery oak duneland, which is the primary habitat type
required by the species for breeding, feeding, and sheltering. Of this
shinnery oak duneland habitat, about 50 percent is minimally disturbed
by human development, whereas 35 percent has been degraded to the point
that it is likely unable to support populations of the dunes sagebrush
lizard. The remaining 15 percent has moderate levels of disturbance,
where we project there have been reductions in dunes sagebrush lizard
viability.
Since the dunes sagebrush lizard exhibits divisions between
population areas and restricted gene flow across its range (Chan et al.
2020, entire), we identified 11 analysis units to assess resiliency.
These units correspond to sections of the overall range of the dunes
sagebrush lizard that are demographically and genetically independent
from each other and logical breakpoints for analysis based on habitat
distribution and potential barriers to movement (i.e., highways).
Levels of habitat degradation and disturbance were not equal across the
11 analysis units; therefore, we developed a system to rank the
viability of dunes sagebrush lizard populations within these units
based on habitat metrics. Each analysis unit was classified as being in
high, moderate, or low condition. Those in high condition possess
enough undisturbed habitat that we project they will support robust,
interconnected populations of the dunes sagebrush lizard. Moderate
condition defines units that have experienced habitat loss and
disturbance to such an extent that abundance and the potential for
natural patterns of dispersal and colonization are expected to be
reduced. Units in low condition have experienced such extensive habitat
loss that they are expected to experience substantial population losses
(USFWS 2024, pp. 92-94).
Of the 11 analysis units, we found 2 that are high condition, 5
that are moderate condition, and 4 that are low condition (see table 1,
below). All analysis units in the Northern Mescalero Sandhills are in
either high (two units) or moderate (three units) condition. In
contrast, both analysis units in the Southern Mescalero Sandhills are
in low condition. Two analysis units in the Monahans Sandhills are in
low condition and two in moderate condition. Although two analysis
units are in high condition according to our analysis (North Mescalero
2 and 4), they are physically disconnected from any other sand dune
formations and contain the least amount of shinnery oak duneland
habitat. Thus, despite being relatively undisturbed, they are isolated
and small, making them at increasing risk of extirpation.
Table 1--Current Habitat Condition for the 11 Analysis Units Defined for the Dunes Sagebrush Lizard SSA
----------------------------------------------------------------------------------------------------------------
Proportion of Proportion
total area of duneland Proportion
Representation unit Analysis unit minimally minimally of duneland Current condition
disturbed disturbed degraded
----------------------------------------------------------------------------------------------------------------
N Mescalero................. N Mescalero 1.. 0.74 0.80 0.14 Moderate.
N Mescalero 2.. 0.76 0.93 0.01 High.
[[Page 43765]]
N Mescalero 3.. 0.62 0.65 0.31 Moderate.
N Mescalero 4.. 0.61 0.58 0.03 High.
N Mescalero 5.. 0.70 0.71 0.28 Moderate.
S Mescalero................. S Mescalero 1.. 0.17 0.17 0.51 Low.
S Mescalero 2.. 0.40 0.28 0.59 Low.
Monahans.................... Monahans 1..... 0.36 0.40 0.56 Low.
Monahans 2..... 0.62 0.73 0.13 Moderate.
Monahans 3..... 0.66 0.65 0.16 Moderate.
Monahans 4..... 0.26 0.37 0.51 Low.
----------------------------------------------------------------------------------------------------------------
Using the total size of each analysis unit, we projected the
proportion of the total dunes sagebrush lizard range that falls into
these different condition categories. Only 6 percent of the species'
range is considered to be in high condition, 47 percent is considered
to be in moderate condition, and 47 percent is considered to be in low
condition.
For redundancy, all 11 analysis units have some habitat classified
as minimally disturbed, meaning they are capable of support dunes
sagebrush lizards. Given the size of the range, it is unlikely that a
single catastrophe would eliminate the entire species. The resiliency
scores of some analysis units, however, suggests that they are
potentially vulnerable to extirpation. Loss of the low condition
analysis units would reduce the total number to 7, with those remaining
concentrated in North Mescalero Sandhills. It is a vulnerability to the
species that the analysis units in the strongest condition are
clustered geographically: North Mescalero Sandhills also includes some
of the smallest units. An extreme event centered in that area could
reduce abundance in the last strongholds for the species, leaving its
viability tied to low condition areas in Southern Mescalero and
Monahans Sandhills.
For representation, all analysis units and representation units
contain dunes sagebrush lizards, meaning that the genetic lineages
identified by Chan et al. (2020, entire) are still represented. The
mere existence of these lineages on the landscape suggests there is
still raw genetic variation present within the species that can support
adaptive capacity. However, some representation units are composed of
populations with low resiliency. Both analysis units in the Southern
Mescalero Sandhills are in low condition. The low viability of these
units suggests that an entire genetic lineage is currently at high risk
for extirpation. Two of the four analysis units in the Monahans
Sandhills are also in low condition. Importantly, these two units cover
the northern and southern extremes of the dunes sagebrush lizard range
in the Monahans Sandhills. Loss of these analysis units could result in
the loss of genetic variation associated with extremes in the
environmental variation experienced by the species in Texas, reducing
adaptive capacity. In fact, a general pattern is that analysis units
are in better condition in the northern part of the species range
(Northern Mescalero Sandhills). Southern populations experience higher
temperatures and drier conditions and may have higher capacity to
withstanding climate change (Leavitt 2019, pp. 7-8). However, their
poor condition limits their potential to contribute to long-term
adaptation of the species.
For a more thorough discussion of the current status of the dunes
sagebrush lizard, see the SSA report (USFWS 2024, pp. 86-109).
Future Scenarios
As part of the SSA, we also developed several future-condition
scenarios to forecast the condition of the species under different
projections of threats. We used our existing assessment of current
habitat as the starting point for our future scenarios. We then
incorporated projections of factors likely to impact the viability of
the dunes sagebrush lizard into the future. Although there are several
factors that may influence the condition of the species in the future,
we focused on oil and gas development and frac sand mining as the
threats most likely to impact the dunes sagebrush lizard's habitat and
long-term viability. Because we determined that the current condition
of the dunes sagebrush lizard is consistent with an endangered species
(see Determination of Dunes Sagebrush Lizard's Status, below), we are
not presenting the results of the future scenarios in this final rule.
Please refer to the SSA report (USFWS 2024, pp. 110-129) for the full
analysis of future scenarios.
Cumulative Effects
We note that by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
these factors, but to what degree they collectively influence risk to
the entire species, our assessment integrates the cumulative effects of
the factors and replaces a standalone cumulative effects analysis.
Determination of Dunes Sagebrush Lizard's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational
[[Page 43766]]
purposes; (C) disease or predation; (D) the inadequacy of existing
regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
Among the threats we evaluated in our SSA report (USFWS 2024,
entire), the most consequential to the long-term persistence of the
dunes sagebrush lizard are habitat loss, fragmentation, and degradation
due to the industrial extraction of oil, gas, and frac sand (Factor A)
and climate change (Factor E). Because these activities have so
thoroughly degraded habitat across large portions (47 percent) of
shinnery oak duneland habitat, much of that habitat is no longer
capable of supporting populations of the dunes sagebrush lizard. Even
though these degraded areas may continue to support the dunes sagebrush
lizard in small, isolated patches, the species in these areas has
limited recruitment, has higher mortality, and is disconnected from
other populations. In highly degraded areas, remnant populations may
persist over the next several decades; however, as they become
extirpated, there is little potential for recolonization due to habitat
fragmentation. Therefore, the dunes sagebrush lizard is functionally
extinct across 47 percent of its range. This includes the entire
Southern Mescalero Sandhills portion of the range, which reduces the
species' adaptive capacity and, therefore, reduces its representation.
Based on our habitat assessment, only two analysis units (6
percent) are currently in high enough condition to support robust,
interconnected populations. Even this, however, may be an overestimate
of long-term resiliency, as these two analysis units are at the extreme
northern portion of the species' range in New Mexico and are physically
disconnected from other dune fields and each other. Additionally,
although minimally disturbed, these two units contain the least amount
of shinnery oak duneland habitat; thus, the populations within these
units are small, isolated, and vulnerable to stochastic and
catastrophic events.
Another large component of the species' range (47 percent) is
currently in moderate condition, meaning it contains sufficient amounts
of minimally disturbed habitat to support populations of the dunes
sagebrush lizard at this time. However, within these areas,
interconnectedness is reduced, increasing the potential for local
extirpations. Where the habitat is in moderate condition, dunes
sagebrush lizard populations are not secure, as the populations are
already highly fragmented and are expected to continue to be impacted
by human activity. Even if there were no further expansion of the oil
and gas or sand mining industry, the existing footprint of these
operations will continue to negatively affect the dunes sagebrush
lizard into the future. For example, the existing road network will
continue to restrict movement and facilitate direct mortality of dunes
sagebrush lizards from traffic, and industrial development will
continue to have edge effects on surrounding habitat and weaken the
structure of the sand dune formations. The pervasiveness of industrial
development makes dunes sagebrush lizards vulnerable to other threats
that were not explicitly quantified in our assessment, such as extreme
drought, groundwater extraction, oil spills, and mesquite encroachment.
Because shinnery-oak duneland habitat cannot currently be restored
(Ryberg et al. 2015, p. 896; Johnson et al. 2016, p. 34), and limited
existing infrastructure will likely be removed from this landscape,
there is little possibility for conditions in these moderate condition
units to improve (USFWS 2024, pp. 105-107). Therefore, we conclude that
habitat in these units will continue to deteriorate due to
fragmentation, which will continue to isolate dunes sagebrush lizard
populations and result in a progressive decline in population
abundance.
Although it still occupies much of its range, many populations are
small, isolated, and vulnerable to extirpation, which will gradually
erode redundancy and increase the risks posed by catastrophic events,
such as drought. Adaptive capacity (i.e., representation) has also been
reduced as well. An entire genetically distinct lineage covering an
ecologically separate portion of the range (Southern Mescalero) is
functionally extinct. A second lineage occupying a geographically
disjunct portion of the range (Monahans) is on a similar trajectory.
Loss of ecological and genetic representation across the range will
reduce adaptive capacity and the ability of the species to respond to
environmental change.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we conclude that the risk factors acting on the dunes
sagebrush lizard and its habitat, either singly or in combination, are
of sufficient imminence, intensity, and magnitude to indicate that the
species is in danger of extinction throughout all of its range. Due to
past and current stressors, the species has experienced reductions in
resiliency across its range, making it vulnerable to stochastic events
We do not find that the dunes sagebrush lizard meets the definition of
a threatened species because the reductions in resiliency, redundancy,
and representation to this point have elevated the risk of the
extinction for the species. Thus, after assessing the best available
information, we determine that dunes sagebrush lizard is in danger of
extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the dunes sagebrush lizard is in
danger of extinction throughout all of its range and accordingly did
not undertake an analysis of any significant portions of its range.
Because the dunes sagebrush lizard warrants listing as endangered
throughout all of its range, our determination does not conflict with
the decision in Center for Biological Diversity v. Everson, 435 F.
Supp. 3d 69 (D.D.C. 2020), which vacated the provision of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (79 FR 37578, July 1, 2014)
providing that if the Service determines that a species is threatened
throughout all of its range, the Service will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the dunes sagebrush lizard meets the Act's
definition of an endangered species. Therefore, we are listing the
dunes sagebrush lizard as an endangered species in accordance with
sections 3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act
[[Page 43767]]
encourages cooperation with the States and other countries and calls
for recovery actions to be carried out for listed species. The
protection required by Federal agencies, including the Service, and the
prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened and the ecosystems upon which they depend. The ultimate
goal of such conservation efforts is the recovery of these listed
species, so that they no longer need the protective measures of the
Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
When this rule is effective (see DATES, above), funding for dunes
sagebrush lizard recovery actions will be available from a variety of
sources, including Federal budgets, State programs, and cost-share
grants for non-Federal landowners, the academic community, and
nongovernmental organizations. In addition, pursuant to section 6 of
the Act, the States of New Mexico and Texas will be eligible for
Federal funds to implement management actions that promote the
protection or recovery of the dunes sagebrush lizard. Information on
our grant programs that are available to aid species recovery can be
found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for the dunes sagebrush lizard. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation'' and
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
Examples of discretionary actions for the dunes sagebrush lizard
that may be subject to consultation procedures under section 7 are land
management or other landscape-altering activities on Federal lands or
mineral rights administered by the BLM as well as actions on State,
Tribal, local, or private lands that require a Federal permit (such as
a permit from the U.S. Army Corps of Engineers under section 404 of the
Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service
under section 10 of the Act) or that involve some other Federal action
(such as funding from the Federal Highway Administration, Federal
Aviation Administration, or the Federal Emergency Management Agency).
Federal actions not affecting listed species or critical habitat--and
actions on State, Tribal, local, or private lands that are not
federally funded, authorized, or carried out by a Federal agency--do
not require section 7 consultation. Federal agencies should coordinate
with the local Service Field Office (see FOR FURTHER INFORMATION
CONTACT) with any specific questions on section 7 consultation and
conference requirements. To facilitate this process, we will ensure
that maps and the data used to generate them in the SSA report will be
made available through requests to the New Mexico Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT). We will also publish up-
to-date range maps on our website (https://www.fws.gov/species/dunes-sagebrush-lizard-sceloporus-arenicolus) to facilitate the project
planning process.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit or to cause to be committed any of the following: (1) import
endangered wildlife into, or export endangered wildlife from, the
United States; (2) take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct) endangered wildlife within the United States or on
the high seas; (3) possess, sell, deliver, carry, transport, or ship,
by any means whatsoever, any endangered wildlife that has been taken
illegally; (4) deliver, receive, carry, transport, or ship in
[[Page 43768]]
interstate or foreign commerce, in the course of commercial activity,
any endangered wildlife; or (5) sell or offer for sale in interstate or
foreign commerce any endangered wildlife. Certain exceptions to these
prohibitions apply to employees or agents of the Service, the National
Marine Fisheries Service, other Federal land management agencies, and
State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22.
With regard to endangered wildlife, a permit may be issued: for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
It is the policy of the Service, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify, to the extent
known at the time a species is listed, specific activities that will
not be considered likely to result in violation of section 9 of the
Act. To the extent possible, activities that will be considered likely
to result in violation will also be identified in as specific a manner
as possible. The intent of this policy is to increase public awareness
of the effect of a listing on proposed and ongoing activities within
the range of the species.
At this time, we are unable to identify specific activities that
will not be considered likely to result in a violation of section 9 of
the Act beyond what is already clear from the Act's descriptions of
prohibitions or already excepted through our regulations at 50 CFR
17.21 (e.g., any person may take endangered wildlife in defense of his
own life or the lives of others). Also, as discussed above, certain
activities that are prohibited under section 9 may be permitted under
section 10 of the Act.
To the extent currently known, the following is a list of examples
of activities that will be considered likely to result in violation of
section 9 of the Act in addition to what is already clear from the
descriptions of the prohibitions found at 50 CFR 17.21:
(1) Destruction, alteration, or removal of shinnery oak duneland
and shrubland vegetation.
(2) Degradation, removal, or fragmentation of shinnery oak duneland
and shrubland formations and ecosystems.
(3) Disruption of water tables in dunes sagebrush lizard habitat.
(4) Introduction of nonnative species that compete with or prey
upon the dunes sagebrush lizard.
(5) Unauthorized release of biological control agents that attack
any life stage of the dunes sagebrush lizard or that degrade or alter
its habitat.
(6) Herbicide or pesticide applications in shinnery oak duneland
and shrubland vegetation and ecosystems.
This list is intended to be illustrative and not exhaustive;
additional activities that will be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, and in some instances (e.g., with new or
site-specific information), the Service may conclude that one or more
activities identified here will not be considered likely to result in
violation of section 9. Questions regarding whether specific activities
would constitute violation of section 9 of the Act should be directed
to the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
II. Critical Habitat
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that we designate critical habitat at the time a
species is determined to be an endangered or threatened species, to the
maximum extent prudent and determinable. In our July 3, 2023, proposed
listing rule (88 FR 42661), we determined that designation of critical
habitat was prudent, but not determinable because specific information
needed to analyze the impacts of designation was lacking. We are still
in the process of assessing the information needed to analyze the
impacts of critical habitat. We plan to publish a proposed rule to
designate critical habitat for the dunes sagebrush lizard in the near
future. The Act allows the Service an additional year to publish a
critical habitat designation that is not determinable at the time of
listing (16 U.S.C. 1533(b)(6)(C)(ii)).
Required Determinations
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis. In accordance with
Secretaries' Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. No designated Tribal lands occur
within the range of the dunes sagebrush lizard, and we received no
comments from Tribes on the July 3, 2023, proposed listing rule, but
several Tribes may have interests in this area and could be affected by
the rule. We contacted the Mescalero Apache, Pueblo of Tesuque, Ysleta
del Sur Pueblo, Kiowa Tribe of Oklahoma, Apache Tribe of Oklahoma, and
Comanche Nation of Oklahoma regarding the SSA process by mail and
invited them to provide information and comments to inform the SSA.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the U.S.
Fish and Wildlife Service's Species Assessment Team and the New Mexico
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by adding an entry for
``Lizard, dunes sagebrush'' to the List of Endangered and Threatened
Wildlife in alphabetical
[[Page 43769]]
order under REPTILES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
* * * * * * *
REPTILES
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Lizard, dunes sagebrush......... Sceloporus Wherever found.... E 89 FR [INSERT Federal
arenicolus. Register PAGE WHERE
THE DOCUMENT BEGINS],
5/20/2024.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-11025 Filed 5-17-24; 8:45 am]
BILLING CODE 4333-15-P