[Federal Register Volume 88, Number 126 (Monday, July 3, 2023)]
[Proposed Rules]
[Pages 42661-42677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13859]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2022-0162; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG22
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for the Dunes Sagebrush Lizard
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the dunes sagebrush lizard (Sceloporus arenicolus), a species
found only in southeastern New Mexico and west Texas, as an endangered
species under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the dunes sagebrush lizard. After a review of the best available
scientific and commercial information, we find that listing the species
is warranted. If we finalize this rule as proposed, it will add this
species to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the species. We find the designation of
critical habitat to be prudent but not determinable at this time.
DATES: We will accept comments received or postmarked on or before
September 1, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 17, 2023.
Public informational meeting and public hearing: We will hold a
public informational session from 5 to 6 p.m., mountain standard time,
followed by a public hearing from 6 to 8 p.m., mountain standard time,
on July 31, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2022-0162,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2022-0162, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0162.
Public informational meeting and public hearing: The public
informational meeting and the public hearing will be held virtually
using the Zoom platform. See Public Hearing, below, for more
information.
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, 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 endangered 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 proposing to list it as such. Listing a
species as an endangered or threatened species can be completed only by
issuing a rule through the Administrative Procedure Act rulemaking
process.
What this document does. We propose to list the dunes sagebrush
lizard as an endangered species under the Act. As explained in this
document, we find that the designation of critical habitat for the
dunes sagebrush lizard is not determinable at this time.
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
[[Page 42662]]
the following threats: (1) Habitat loss, fragmentation, and degradation
from development by the oil and gas and 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 designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. As explained later in this
proposed rule, we find that the designation of critical habitat for the
dunes sagebrush lizard is not determinable at this time.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status of this species.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act (16 U.S.C. 1531 et seq.) directs that determinations as to
whether any species is an endangered or a threatened species must be
made solely on the basis of the best scientific and commercial data
available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determination may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), we may conclude that the species is threatened
instead of endangered, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species.
Public Hearing
We have scheduled a public informational meeting and public hearing
on this proposed rule to list the dunes sagebrush lizard as an
endangered species. We will hold the public informational meeting and
public hearing on the date and at the times listed above under Public
informational meeting and public hearing in DATES.
We are holding the public informational meeting and public hearing
via the Zoom online video platform and via teleconference so that
participants can attend remotely. For security purposes, registration
is required. To listen and view the meeting and hearing via Zoom,
listen to the meeting and hearing by telephone, or provide oral public
comments at the public hearing by Zoom or telephone, you must register.
For information on how to register, or if you encounter problems
joining Zoom the day of the meeting, visit https://www.fws.gov/office/new-mexico-ecological-services. Registrants will receive the Zoom link
and the telephone number for the public informational meeting and
public hearing. If applicable, interested members of the public not
familiar with the Zoom platform should view the Zoom video tutorials
(https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational meeting and public
hearing.
The public hearing will provide interested parties an opportunity
to present verbal testimony (formal, oral comments) regarding this
proposed rule. The public informational meeting will be an opportunity
for dialogue with the Service. The public hearing is a forum for
accepting formal verbal testimony. In the event there is a large
attendance, the time allotted for oral statements may be limited.
Therefore, anyone wishing to make an oral statement at the public
hearing for the record is encouraged to provide a prepared written copy
of their statement to us through the Federal eRulemaking Portal, or
U.S. mail (see ADDRESSES, above). There are no limits on the length of
written comments submitted to us. Anyone wishing to make an oral
statement at the public hearings must register before the hearing
(https://www.fws.gov/about/region/southwest). The use of a virtual
public hearing is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
On December 30, 1982, we published our candidate notice of review
(CNOR) classifying the sand dune lizard (i.e., dunes sagebrush lizard)
as a Category 2 candidate species (47 FR 58454). Much of the previous
literature concerning Sceloporus arenicolus refers to it by the common
name of sand dune lizard (e.g., Degenhardt et al. 1996, p. 159);
however, the currently accepted common name is dunes sagebrush lizard
(Crother 2017, p. 52). Category 2 status included those taxa for which
information in the Service's possession indicated that a proposed rule
was
[[Page 42663]]
possibly appropriate, but for which sufficient data on biological
vulnerability and threats were not available to support a proposed
rule.
On September 18, 1985, we published our CNOR reclassifying the
dunes sagebrush lizard as a Category 3C candidate species (50 FR
37958). Category 3C status included taxa that were considered more
abundant or widespread than previously thought or not subject to
identifiable threats. Species in this category were not included in our
subsequent notices of review, unless their status had changed.
Therefore, in our subsequent November 21, 1991, CNOR (56 FR 58804), the
dunes sagebrush lizard was not listed as a candidate species.
On November 15, 1994, our CNOR once again included the dune
sagebrush lizard as a Category 2 candidate species (59 FR 58982),
indicating that its conservation status had changed. On February 28,
1996, we published a CNOR that announced changes to the way we identify
candidates for listing under the Act (61 FR 7596). In that document, we
provided notice of our intent to discontinue maintaining a list of
Category 2 species, and we dropped all former Category 2 species from
the candidate list. This was done to reduce confusion about the
conservation status of those species, and to clarify that we no longer
regarded them as candidate species. As a result, the dunes sagebrush
lizard did not appear as a candidate in our 1996 (61 FR 7596; February
28, 1996), 1997 (62 FR 49398; September 19, 1997), or 1999 (64 FR
57534; October 25, 1999) CNOR.
In our 2001 CNOR, the dunes sagebrush lizard was placed on our
candidate list with listing priority number (LPN) of 2 (66 FR 54808;
October 30, 2001). Service policy (48 FR 43098; September 21, 1983)
requires the assignment of an LPN to all candidate species that are
warranted for listing. This listing priority system was developed to
ensure that the Service has a rational system for allocating limited
resources in a way that ensures that the species in greatest need of
protection are the first to receive such protection. The LPN is based
on the magnitude and immediacy of threats and the species' taxonomic
uniqueness with a value range from 1 to 12. A listing priority number
of 2 for the dunes sagebrush lizard means that the magnitude and the
immediacy of the threats to the species were considered high.
On June 6, 2002, we received a petition from the Center for
Biological Diversity to list the dunes sagebrush lizard. On June 21,
2004, the United States District Court for the District of Oregon
(Center for Biological Diversity v. Norton, Civ. No. 03-1111-AA) found
that our resubmitted petition findings for three species, including the
dunes sagebrush lizard, which we published as part of the CNOR on May
4, 2004 (69 FR 24876), were not sufficient to satisfy the petition
process. The court indicated that we did not specify what listing
actions for higher priority species precluded publishing a proposed
rule for these three species, and that we did not adequately explain
the reasons why actions for the identified species were deemed higher
in priority, or why such actions resulted in the preclusion of listing
actions for these three species. The court ordered that we publish
updated findings for these species within 180 days of the order.
On December 27, 2004, we published a 12-month finding that listing
of the dunes sagebrush lizard was warranted, but precluded by higher
priorities (69 FR 77167). In that finding, the species remained on the
candidate list, with an LPN of 2. On December 14, 2010, we proposed to
list the dunes sagebrush lizard as endangered (75 FR 77801). Following
two public comment periods (see 75 FR 77801, December 14, 2010, and 76
FR 19304, April 7, 2011), we announced a 6-month extension on the final
determination for the proposed listing of the dunes sagebrush lizard
and reopened the comment period on the proposed rule to list the
species (76 FR 75858; December 5, 2011). We took this action because
there was substantial disagreement regarding the sufficiency or
accuracy of the available data relevant to the proposed listing rule.
On February 24, 2012, we again reopened the comment period on the
proposed listing (77 FR 11061). The February 24, 2012, publication also
announced the availability of, and requested comments on the likelihood
of implementation and effectiveness of the conservation measures in, a
signed conservation agreement for the dunes sagebrush lizard in Texas.
Following these comment periods, on June 19, 2012, we published a
document (77 FR 36871) withdrawing the proposed rule to list the dunes
sagebrush lizard as endangered based on our conclusion that the threats
to the species identified in the proposed rule were no longer as
significant as believed at the time of the proposed rule. We based this
conclusion on our analysis of current and future threats as well as an
analysis of the potential benefits of conservation efforts in New
Mexico and Texas.
On June 1, 2018, we received a petition from the Center for
Biological Diversity and Defenders of Wildlife, requesting that the
dunes sagebrush lizard be listed as endangered or threatened and
critical habitat be designated for this species under the Act. On July
16, 2020, we published a 90-day finding determining that the petition
presented substantial scientific or commercial information indicating
that listing the species may be warranted (85 FR 43203). On May 19,
2022, we received a complaint from the Center for Biological Diversity
alleging that we failed to issue a timely 12-month finding. In order to
settle the complaint, we agreed to publish a 12-month finding by June
29, 2023. This document serves as the 12-month finding for the 2018
petition.
Peer Review
A species status assessment (SSA) team prepared a SSA report for
the dunes sagebrush lizard. The SSA team was composed of Service
biologists, in consultation with other species experts from State
wildlife agencies, consulting firms, and academia. 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 of
listing actions under the Act, we solicited independent scientific
review of the information contained in the dunes sagebrush lizard SSA
report. We sent the SSA report to seven independent peer reviewers and
received five responses. Results of this structured peer review process
can be found at https://www.regulations.gov under Docket No. FWS-R2-ES-
2022-0162. In preparing this proposed rule, we incorporated the results
of these reviews, as appropriate, into the SSA report, which is the
foundation for this proposed rule.
Summary of Peer Review Comments
As discussed above in Peer Review, we received comments from five
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions
presented within the draft SSA report. They provided some additional
information, clarifications in terminology, further discussions and
interpretations of the available scientific literature, and feedback on
stressors. We
[[Page 42664]]
incorporated the majority of the substantive comments within the SSA
report (USFWS 2023, version 1.2), and thus this proposed rule. We
outlined the substantive comments that we did not incorporate, or fully
incorporate, within the SSA report below.
(1) Comment: We received several comments from a reviewer on the
use of shinnery oak (Quercus havardii) shrublands, which are areas of
flat terrain interspersed among shinnery oak sand dune formations, by
the dunes sagebrush lizard. The reviewer believed our assertion in the
SSA report that dunes sagebrush lizards use shinnery oak shrublands for
dispersal was incorrect. Instead, the reviewer believed that the dunes
sagebrush lizard does not use shinnery oak shrublands for dispersal and
only perform long-distance movements through shinnery oak dune
formations.
Our response: We revised the wording of the SSA report to reflect
the importance of the sand dune formations, particularly sand dune
blowouts, to all aspects of dunes sagebrush lizard life history.
However, there are records of dunes sagebrush lizards collected in
shinnery oak shrublands, which we clarified in the SSA report. In
response to this comment, we emphasized that the importance of the
shinnery oak shrublands to the dunes sagebrush lizard is largely due to
it providing a stabilizing force that maintains the structure of the
sand dune formations.
(2) Comment: A reviewer commented that the SSA report presented an
inaccurate impression on the extent of gene flow between the areas
designated as analysis units for the SSA. The reviewer stated that
there was no evidence of gene flow between these areas and they should
be treated as independent units that do not exchange individuals.
Our response: For the SSA, we subdivided the dunes sagebrush
lizard's range into analysis units to base our assessment of
resiliency. These units were delineated based on genetic, demographic,
and habitat data that indicated breakpoints where dunes sagebrush
lizard movement was restricted on the landscape. We agree that
contemporary gene flow and movement of individual dunes sagebrush
lizards is limited to nonexistent between the areas we designated as
analysis units. We revised our wording in the SSA report to reflect
that dispersal events between these areas are infrequent and unlikely
to contribute to the demographic or genetic resiliency of a population.
These analysis units are based largely on the results of Chan et al.
(2020, entire), who identified distinct genetic groupings across the
dunes sagebrush lizard's range. However, Chan et al. (2020, p. 7) also
found evidence of genetic intermixing between several of these groups,
although admixed individuals composed a small portion of the samples
that were typically restricted to contact zones between the distinct
genetic groups. For this reason, we cannot unequivocally claim that
dispersal and gene flow between our analysis units is nonexistent.
(3) Comment: A reviewer disagreed with our characterization of the
shinnery oak duneland ecosystem as a dynamic environment in which sand
dune formations shift over time. They stated that sand dunes were
stable over decades and any appreciable shifts occur over the scale of
centuries and millennia, which contrasted with our depiction of these
ecosystems as dynamic with suitable habitat shifting regularly over
time and space. The reviewer noted that several locations where dunes
sagebrush lizards have been studied for over 30 years have remained
stable over that time.
Our response: In reviewing the literature and personal accounts of
experts, there is substantial evidence that sand dune fields in this
area have shifted spatially since they were first described. However,
we acknowledge that does not mean all sand dunes shift on similar
spatial or temporal scales. In revising the SSA report, we referenced
the results of Dzialak et al. (2013, entire), who documented shifts in
the geographic extent of the Mescalero and Monahans Sandhills over 25
years using satellite and aerial imagery. They found that over that
period some areas remained stable but loss and emergence of shinnery
oak soil-associations were also common (Dzialak et al. 2013, p. 1381).
Overall, the Mescalero and Monahans Sandhills experienced a net decline
in geographic extent of 10.3 percent over the study period. Several
areas within the range of the dunes sagebrush lizard, most notably in
the northern extent of the range in the Mescalero Sandhills, were
estimated to have had an elevated probability of loss in shinnery oak
soil-associations (Dzialak et al. 2013, p. 1382). Therefore, we
maintain our characterization of this landscape as one that is
spatially dynamic, but we also revised our wording to clarify that some
areas may remain stable over longer timeframes.
(4) Comment: A reviewer commented that trends in the frac sand
mining industry are dependent on market demands and noted the inherent
challenge in projecting mine expansion over time. The reviewer noted
that since the industry is relatively new in this area (the first sand
mine was established in 2017), growth rates may be biased by rapid
expansion as mines were first established and before the market
corrected to a more stable trend. The reviewer also suggested that the
industry may shift to locally derived frac sand as the oil industry
considers alternative methods of development.
Our response: We acknowledge that it is difficult to make
projections for such a young industry for which there is little
available information on the patterns and practices of sand mines
collectively. However, our projections of future sand mine expansion
were based on observed growth of known sand mines using aerial imagery
(USFWS 2023, pp. 108-109, 112-114). We used imagery that covered a 4-
year period, which included the initial startup phase of mine
establishment as well as ebbs in the market, during the COVID pandemic.
We observed minimal growth at several mines after their initial
establishment, whereas others expanded eightfold from 2018 to 2022
(USFWS 2023, p. 109). By developing two scenarios that represent
plausible upper and lower limits of sand mine growth, we capture
inherent uncertainty in the future development of the industry. Thus,
we are confident that our future scenarios incorporate plausible growth
rates for sand mines based upon the best available data. We also note
that our projected annual growth rates are within the range estimated
in independent assessments by industry experts (USFWS 2023, pp. 195-
196).
I. Proposed 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 1.2;
USFWS 2023, pp. 16-42).
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
[[Page 42665]]
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,
shifting sand, and 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. 2021, 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. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
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 term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. 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.
[[Page 42666]]
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 proposed for listing 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 viability of the dunes sagebrush lizard, 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 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 SSA report 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 dunes
sagebrush lizard and its resources, and the threats that influence the
species' current and future condition, 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 their 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 lizard, 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. 2021, pp. 13-14).
The shinnery oak duneland and shrubland habitat that surrounds these
blowouts is 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 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 degrees Celsius ([deg]C) (2 degrees Fahrenheit
([deg]F)) and a total annual precipitation decrease of 5 centimeters
(cm) (2 inches (in)) (Leavitt 2019, pp. 7-8; USFWS 2023, 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.
[[Page 42667]]
Threats
We identified risk factors that have influenced the dunes sagebrush
lizard and its habitats in the past and may continue to do so into the
future. These included 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 2023, pp. 53-85). However, in
this proposed 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 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
destruction, modification, and fragmentation 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 2023, 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. 1972-
1975; 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;
Devictoret 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 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 a 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 densities
of 13.64 wells pads per square mile (wells/mi\2\), and a 50 percent
reduction at a well density of 29.82 well pads/mi\2\ (Sias and Snell
1998, p. 23). Based on that study, the proposed recommendation became
that well densities in New Mexico be limited to 13 well pads/mi\2\
(Painter et al. 1999, p. 3). Further research found that areas with 13
well pads/mi\2\ or greater are found to have considerably lower
abundance of dunes sagebrush lizards than unfragmented sites (Leavitt
and Fitzgerald 2013, p. 9). Further, high well and road density 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,
[[Page 42668]]
p. 9). Marked declines in dunes sagebrush lizard occurrence in New
Mexico have also been observed at well densities of 5 and 8 well pads/
mi\2\, with no lizards found at well densities above 23 well pads/mi\2\
(Johnson et al. 2016, p. 41). These results supported the
recommendation that 13 well pads/mi\2\ 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/mi\2\ (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 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). Roads may also create
fugitive dust that can impact shinnery oak growth and alter the grain-
size distribution in blowouts. The dunes sagebrush lizard appears to be
more abundant in areas where sand particles are larger (Fitzgerald et
al. 1997, p. 25; Snell et al. 1997, p. 9). Soils with fine-grained
particles (less than 250 micrometers ([mu]m)) may interfere with
breathing physically (e.g., inhaling sand) and prevent gas exchange
necessary for lizards to breathe while buried (Fitzgerald et al.1997,
p. 25; Snell et al. 1997, p. 9; Ryberg and Fitzgerald 2015, p. 118).
Fine-grained sand may also be too compact for the dunes sagebrush
lizard to bury itself, may be inadequate for nest excavation and egg
incubation (Ryberg et al. 2012, p. 584), and may have properties that
prevent adequate exchange of gasses and water between eggs and the
substrate surrounding subterranean nest chambers (Snell et al. 1997, p.
9). Thus, covering blowouts in dust may make an area unsuitable habitat
for the dunes sagebrush lizard.
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 grades 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 2023, 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 dunes sagebrush lizard
recruitment and survival.
The relationship between these weather events and dunes sagebrush
lizard habitat (i.e., shinnery oak) has been better characterized.
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
[[Page 42669]]
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 provides food resources for invertebrates that
are consumed by dunes sagebrush lizard. Furthermore, continued
alterations to the landscape are likely to exacerbate the impacts of
climate change on 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.
Current Condition
We assessed the current condition of the dunes sagebrush lizard
using a geospatial analysis to estimate the current quantity and
quality of available habitat (USFWS 2023, 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 it is likely unable to support populations of
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 either
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 2023, pp. 92-94).
Of the 11 analysis units, we found two have an overall condition
score of high, five that are moderate condition, and four that are low
condition (Table 1). 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 are moderate condition. Although
two analysis units are in high condition according to our analysis
(North Mescalero 2 and 4), there 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--Results From the Analysis of Current Status of Habitat Across the 11 Analysis Units Defined for the Dunes Sagebrush Lizard Assessment the
Overall Current Condition of Those Unit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proportion of Proportion of
total area duneland Proportion of
Representation unit Analysis unit minimally minimally 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.
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 fell 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 a more thorough discussion of the current status of the
dunes sagebrush lizard, see the SSA report (USFWS 2023, pp. 86-109).
Future Scenarios
To assess the viability of the dunes sagebrush lizard into the
future, we developed several 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
dunes sagebrush lizard viability into the future. Although there are
several factors that may influence the condition
[[Page 42670]]
of the species in the future, we focused on oil and gas development and
sand mining as the threats most likely to impact the dunes sagebrush
lizard's habitat and long-term viability.
Since dunes sagebrush lizard density and abundance have a negative
relationship with oil well pad density, projecting the number and
placement of future wells on the landscape is important for assessing
the future condition of the species. Pierre et al. (2020, entire)
created a spatially explicit model to project future landscape
alteration associated with oil and gas development in the Permian
Basin. Projections in the model followed three scenarios, which they
labelled as ``Low'', ``Medium'', and ``High'', that differed based on
numbers of wells developed on each pad. The inputs to the model are
based on past, current, and anticipated future production practices
that take into account evolving new technology that enables multiple
wells to be developed on a single pad, ultimately requiring a smaller
footprint per well. All three scenarios were projected to 2050. The
models also prevented oil well pads from being established in certain
locations, including areas set aside for conservation, such as State
parks and Bureau of Land Management lands closed to oil drilling.
Because of these features, Pierre et al. (2020, entire) represents a
scientifically rigorous projection of future oil and gas development
throughout the range of the dunes sagebrush lizard.
The sand mining industry is relatively young in west Texas, with
the first mines appearing in 2017. Thus, there are not ample published
data on past industry trends that could be used to project future
growth. This raises uncertainty about projecting the growth of existing
sand mines and the potential for new mines to be developed. For our
future scenarios in the SSA report (USFWS 2023, pp. 111-114), we chose
to model future sand mine expansion using our own empirical estimates
of sand mine growth rates. We did this by using the latest aerial
imagery to estimate growth of individual sand mines within the dunes
sagebrush lizard's range from 2017 to 2022, depending on the
availability of imagery. We identified 18 sand mines within our
analysis area and assessed their growth rates over the 5-year period
using aerial imagery. The median growth rate was 22 ha (54 ac) per mine
per year, with the 25th percentile being 16 ha (39 ac) per mine per
year and the 75th percentile being 30 ha (74 ac) per mine per year. To
capture the ebbs and flows of the market, we created three estimates of
sand mine growth rates--a high, medium, and low scenario (USFWS 2023,
p. 112-114)--and integrated them into the future scenarios developed by
Pierre et al. (2020, entire). For the medium sand mine growth rate
scenario, we selected the median growth rate calculated using the
aerial imagery. With the high scenario, we selected the 75th percentile
of sand mines growth rates, and for the low scenario, we used the 25th
percentile of sand mine growth rates. We then used geospatial analyses
to project sand mine growth to 2050, which matches the timeframe of the
Pierre et al. (2020, entire) scenarios (USFWS 2023, pp. 188-194).
We paired the projections of oil well density and sand mine
expansion to capture the extent of potential future impacts to the
dunes sagebrush lizard, not to generate a holistic, integrated economic
scenario. In other words, we did not assume that the economic forces
that would result in an outcome for one industry would necessarily
result in a similar trend for the other. Instead, our scenarios were
meant to capture the plausible range of landscape impacts caused by
both industries under an upper and lower plausible limit. The likely
future lies somewhere between these boundary scenarios, and it is
important to interpret them as bounds of plausible future impacts to
dunes sagebrush lizard habitat and the species' future viability.
There are several conservation agreements that have been put in
place to minimize the impact of industrial activity on the dunes
sagebrush lizard and its habitat (see Conservation Efforts and
Regulatory Mechanisms, below). For projecting future conditions, we
considered the nature of the agreements and accounted for them in our
projections of future habitat. The protection of public lands in New
Mexico was accounted for in the oil projections: Pierre et al. (2020,
p. 349, table S3) excluded certain areas from future oil well
placement, including protected areas, conservation easements in New
Mexico, and Bureau of Land Management lands closed to future oil
drilling. In Texas, since most landownership is private and there are
fewer protected areas officially closed to future development, there
were fewer restrictions on future oil development in the Pierre et al.
(2020) model. Furthermore, unlike the conservation agreements in New
Mexico, which require avoidance of dunes sagebrush lizard habitat, the
agreements in Texas authorize impacts to habitat. The Texas agreements
are voluntary agreements where areas set aside to preserve dunes
sagebrush lizard habitat by Participants are not under permanent or
long-term protection. Further, they do not provide any property-
specific commitments to avoid habitat, only commitments to mitigate for
habitat impacts that result from covered activities, for the duration
of these agreements. Also, since these are private lands, we would not
know the location of the habitat being avoided. Thus, based on
performance of these plans to date, we do not expect these agreements
to have a measurable effect in protecting the dunes sagebrush lizard or
its habitat in Texas into the future. Therefore, we did not include
potential future conservation efforts resulting from these plans in our
scenarios projecting the species' future status. We did not adjust our
future projections of oil well density or sand mining to account for
these agreements.
We also did not include any future habitat restoration in the
future projections. This is because loss of shinnery oak duneland
habitat is irreversible. Trials to restore and recreate shinnery oak
dunelands have not been successful (Ryberg et al. 2015, p. 896; Johnson
et al. 2016, p. 34). Thus, restoration of dunes sagebrush lizard
habitat has been limited and not conducted on a meaningful scale.
In all three scenarios, the quality and quantity of dunes sagebrush
lizard habitat was projected to decrease (see figure, below). As with
current condition, we ranked the resiliency of the 11 analysis units
based on projected habitat conditions under all three scenarios. Across
all three scenarios, only 2 percent of the dunes sagebrush lizard's
range is projected to have high resiliency in 2050. The low scenario
results in similar resiliency scores as estimated for current
conditions. In contrast, in the medium scenario, 72 percent of the
dunes sagebrush lizard's range is projected to have low resiliency.
This increases to 77 percent under the high scenario. With the low
scenario, 51 percent of the dunes sagebrush lizard's range is projected
to be in moderate resiliency; this drops to 26 and 21 percent for the
medium and high scenarios, respectively. Under the medium and high
scenarios, all the analysis units in the Southern Mescalero and
Monahans analysis units are projected to have low resiliency.
BILLING CODE 4333-15-P
[[Page 42671]]
[GRAPHIC] [TIFF OMITTED] TP03JY23.000
BILLING CODE 4333-15-C
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 not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the 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.
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 and is considered a sensitive species by the Bureau of Land
Management. In 2008, the Bureau of Land Management developed a Special
Status Species Resource Management Plan Amendment
[[Page 42672]]
(hereafter Amendment) (BLM 2008, entire) to guide management of lands
within dunes sagebrush lizard habitat in New Mexico. The plan addressed
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 (Bureau of Land Management
[BLM] 2008, p. 3). From 2008 to 2020, they have reclaimed 1,416 ha
(3,500 ac) of abandoned well pads and associated roads. Additionally,
the Bureau of Land Management continues to implement control efforts
for invasive mesquite.
Following approval of the Amendment, a team including the Service,
Bureau of Land Management, the Center of Excellence, and participating
cooperators drafted both a candidate conservation agreement (CCA) and
candidate conservation agreement with assurances (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 Bureau of Land Management 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 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).
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 Texas
Conservation Plan (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 (approximately 76 percent
decrease). 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, sand
mining, linear infrastructure (such as utilities and pipelines), wind,
solar, 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 Participants versus non-Participants, 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
[[Page 42673]]
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 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
and actively seeking participants to sign up under the 2020 CCAA. To
date, no certificates of inclusion have been issued, and thus no
conservation actions have been implemented as part of this CCAA.
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 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. We also take into consideration any efforts by
States or other authorities to protect the species and promote its
viability.
Status Throughout All of Its Range
Among the threats we evaluated in our SSA report (USFWS 2023,
entire), the most consequential to the long-term persistence of the
dunes sagebrush lizard are habitat loss, modification, and
fragmentation due to the industrial extraction of oil, gas, and frac
sand (Factor A). Because these activities have so thoroughly degraded
habitat across large portions (47 percent) of shinnery oak duneland
habitat, much of it 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, but 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 over-estimate
of long-term resiliency, since 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. Dunes sagebrush lizard populations where the habitat is
in moderate condition are not secure in those units, as the populations
are already highly fragmented and are expected to continue to be
impacted by human activity. Even if there was no further expansion of
the oil and gas or sand mining industries, 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 2023, pp. 105-107). Therefore, we conclude that
habitat in these units will continue to deteriorate due to
fragmentation, which will continue to isolate populations and result in
a progressive decline in population abundance. Ultimately, the species
will become extirpated in the areas currently classified as moderate
condition, even without any expansion of current threats.
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
current stressors, the species has experienced reductions in resiliency
across its range, making it vulnerable to stochastic events. 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. An entire lineage covering an ecologically separate portion of
the range (Southern Mescalero) is functional extinct, which would
reduce adaptive capacity and the ability of the species to respond to
environmental change. A second lineage occupying a geographically
disjunct portion of the range (Monahans) is on a similar trajectory.
Thus, after assessing the best available information, we determine that
the dunes sagebrush lizard is in danger of extinction throughout all of
its range. Threats are so pervasive and severe across the species range
that they heighten the risk of extinction for the dunes sagebrush
lizard in the near future even with extrapolation of these threats into
the future, meaning a threatened determination under the Act would not
reflect the current risk to the species.
[[Page 42674]]
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
in 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 portion 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) (Everson), 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 Services determine that a species is threatened
throughout all of its range, the Services 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 propose to list 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 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 species 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.
If this species is listed, funding for 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
would 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.
Although the dunes sagebrush lizard is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. 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(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency (action agency) must enter into consultation
with the Service.
Examples of actions that may be subject to the section 7 processes
are land management or other landscape-altering activities on Federal
lands or mineral rights administered by the Bureau of Land Management
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
[[Page 42675]]
section 10 of the Act) or that involve some other Federal action (such
as funding from the Federal Highway Administration, Federal Aviation
Administration, Federal Emergency Management Agency, or Natural
Resources Conservation Service). 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. Examples of
Federal agency actions that may require consultation for the dunes
sagebrush lizard could include updates or amendments to the Bureau of
Land Management Resource Management Plan; oil and gas lease sales of
Federal lands or minerals; habitat management, such as mesquite
treatments and prescribed burns, on Bureau of Land Management lands;
and new roads funded by the Federal Highway Administration. Given the
difference in triggers for conferencing and consultation, Federal
agencies should coordinate with the local Service Field Office (see FOR
FURTHER INFORMATION CONTACT) with any specific questions.
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 take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees 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 are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
for scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with 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 our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing.
At this time, however, we are unable to identify specific
activities that would not be considered to result in a violation of
section 9 of the Act because the dunes sagebrush lizard and its habitat
occurs in a highly active and developing region of New Mexico and Texas
and it is likely that site-specific conservation measures may be needed
for activities that may directly or indirectly affect the species.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(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.
Questions regarding whether specific activities would constitute a
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
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management, such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the
[[Page 42676]]
proposed activity would likely result in destruction or adverse
modification of the critical habitat, the Federal action agency and the
landowner are not required to abandon the proposed activity, or to
restore or recover the species; instead, they must implement
``reasonable and prudent alternatives'' to avoid destruction or adverse
modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report and
proposed listing determination for the dunes sagebrush lizard, we
determined that the present or threatened destruction, modification, or
curtailment of habitat or range is a threat to the dunes sagebrush
lizard and that threat in some way can be addressed by the Act's
section 7(a)(2) consultation measures. The species occurs wholly in the
jurisdiction of the United States, and we are able to identify areas
that meet the definition of critical habitat. Therefore, because none
of the circumstances enumerated in our regulations at 50 CFR
424.12(a)(1) have been met and because the Secretary has not identified
other circumstances for which this designation of critical habitat
would be not prudent, we have determined that the designation of
critical habitat is prudent for the dunes sagebrush lizard.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the dunes
sagebrush lizard is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking; or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service
[[Page 42677]]
an additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. Careful assessments of the economic and environmental impacts
that may occur due to a critical habitat designation are not yet
complete, and we are in the process of working with the States and
other partners in acquiring the complex information needed to perform
those assessments. The information sufficient to perform a required
analysis of the impacts of the designation is lacking. Therefore, we
conclude 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)).
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
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), E.O. 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 recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial 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, but several Tribes may have interests in this
area and could be affected by the proposed 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. Our interactions with these
Tribes are part of our government-to-government consultation with
Tribes regarding the dunes sagebrush lizard and the Act. We will
continue to work with Tribal entities during the rulemaking process.
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 proposed rule are the staff members of
the 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.
Proposed Regulation Promulgation
Accordingly, we propose to 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(h) by adding an entry for ``Lizard, dunes
sagebrush'' to the List of Endangered and Threatened Wildlife in
alphabetical order under REPTILES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
* * * * * * *
Lizard, dunes sagebrush.......... Sceloporus Wherever found..... E [Federal Register
arenicolus. citation when
published as a
final rule].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-13859 Filed 6-30-23; 8:45 am]
BILLING CODE 4333-15-P