Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Dunes Sagebrush Lizard, 43748-43769 [2024-11025]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 98 (Monday, May 20, 2024)]
[Rules and Regulations]
[Pages 43748-43769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11025]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2022-0162; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BG22


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for the Dunes Sagebrush Lizard

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended, for the dunes sagebrush lizard (Sceloporus 
arenicolus), a lizard species found only in southeastern New Mexico and 
west Texas. This rule extends the protections of the Act to this 
species. Because we have concluded that the designation of critical 
habitat for the dunes sagebrush lizard is prudent but not determinable 
at this time, we will consider critical habitat for the species in a 
separate, future rulemaking.

DATES: This rule is effective June 20, 2024.

ADDRESSES: This final rule, supporting materials we used in preparing 
this rule (such as the species status assessment report), and comments 
and materials we received on the July 3, 2023, proposed rule are 
available on the internet at https://www.regulations.gov under Docket 
No. FWS-R2-ES-2022-0162.

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), a species warrants listing if it meets the definition of an 
endangered species (in danger of extinction throughout all or a 
significant portion of its range) or a threatened species (likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range). If we determine that a 
species warrants listing, we must list the species promptly and 
designate the species' critical habitat to the maximum extent prudent 
and determinable. We have determined that the dunes sagebrush lizard 
meets the Act's definition of an endangered species; therefore, we are 
listing it as such. As explained later in this document, because the 
designation of critical habitat for the dunes sagebrush lizard is 
prudent but not determinable at this time, we will consider critical 
habitat for the species in a separate, future rulemaking. Listing a 
species as an endangered or threatened species and designating critical 
habitat can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule lists the dunes sagebrush lizard 
as an endangered species under the Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the dunes sagebrush lizard 
is endangered due to the following threats: (1) Habitat loss, 
fragmentation, and degradation from development by the oil and gas and 
the frac sand (high-purity quartz sand that is suspended in fluid and 
injected into wells to blast and hold open cracks in the shale rock 
layer during the fracking process) mining industries; and (2) climate 
change and climate conditions, both resulting in hotter, more arid 
conditions with an increased frequency and greater intensity of drought 
throughout the species' geographic range.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, to 
designate critical habitat concurrent with listing. As explained later 
in this rule, we find that the designation of critical habitat for the 
dunes sagebrush lizard is not determinable at this time. The Act allows 
the Service an additional year to publish a critical habitat 
designation that is not determinable at the time of listing (16 U.S.C. 
1533(b)(6)(C)(ii)).

Previous Federal Actions

    Please refer to the proposed listing rule (88 FR 42661; July 3, 
2023) for a detailed description of previous Federal actions concerning 
the dunes sagebrush lizard.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the dunes sagebrush lizard. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the dunes sagebrush lizard SSA 
report. The peer reviews can be found at

[[Page 43749]]

https://www.regulations.gov. In preparing the July 3, 2023, proposed 
rule, we incorporated the results of these reviews, as appropriate, 
into the SSA report, which was the foundation for the proposed rule and 
this final rule. A summary of the peer review comments and our 
responses can be found in the proposed rule (88 FR 42661 at 42663-
42664; July 3, 2023).

Summary of Changes From the Proposed Rule

    Based upon our review of the public comments, State agency 
comments, peer review comments, and relevant information that became 
available since the July 3, 2023, proposed rule published, we updated 
information in our SSA report, including:
     Adding references on the impact of frac sand mining on 
groundwater (USFWS 2024, pp. 70-80).
     Adding information and references on human population 
growth in the Permian Basin, which is likely to exacerbate the threats 
of habitat loss and fragmentation (USFWS 2024, p. 127).
     Adding information (Chan 2023, pers. comm.) regarding 
estimates of genetic effective population size for dunes sagebrush 
lizard populations (USFWS 2024, pp. 40-41, 106-107).
     Adding information on the effects of climate change on 
future groundwater levels (USFWS 2024, p. 75).
     Updating enrollment numbers in existing conservation 
agreements (USFWS 2024, p. 84).
    We also made changes as appropriate in this final rule. In addition 
to minor clarifying edits, this determination differs from the proposal 
in the following ways:
    (1) We received a comment regarding the impact of fugitive road 
dust on the dunes sagebrush lizard and its habitat. This comment 
indicated that the impact of fugitive road dust on the species is 
uncertain. After reconsidering the impact of fugitive road dust on the 
species, we decided to remove the statement referencing road dust from 
the explanation of the listing decision presented below. This change 
does not impact the final conclusion that the dunes sagebrush lizard is 
in danger of extinction throughout all of its range (i.e., that it 
meets the Act's definition of an endangered species).
    (2) We updated the language in the explanation of the listing 
decision and SSA report to address confusion regarding the terms ``well 
density'' and ``well pad density.'' These changes demonstrate that our 
focus is on well pads, and the associated construction of road 
infrastructure, as they are central components of ground disturbance, 
and therefore species impacts, in oil and gas drilling and extraction.

Summary of Comments and Recommendations

    In the proposed rule published on July 3, 2023 (88 FR 42661), we 
requested that all interested parties submit written comments on the 
proposal by September 1, 2023. Following requests from several members 
of the public, on August 30, 2023, we published a document in the 
Federal Register (88 FR 59837) extending the public comment period on 
our July 3, 2023, proposal to October 2, 2023. We also contacted 
appropriate Federal and State agencies, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposal. Newspaper notices inviting general public comment were 
published in the Albuquerque Journal, Midland Reporter, and Carlsbad 
Argus. We held a public informational session and a public hearing on 
July 31, 2023. All substantive information we received during the 
comment periods has either been incorporated directly into this final 
determination or is addressed below.

Federal Agency Comments

    (1) Comment: One Federal agency, one State agency, and several 
public commenters suggested that the Service list the dunes sagebrush 
lizard as a threatened species in order to issue a rule under section 
4(d) of the Act (a ``4(d) rule'') that exempts from take those 
activities that occur pursuant to CCAAs, noting this framework would 
complement existing conservation efforts.
    Our response: We conclude that the dunes sagebrush lizard is 
currently in danger of extinction, and not in danger of extinction 
within the foreseeable future. Therefore, the species currently meets 
the Act's definition of an endangered species, not the definition of a 
threatened species. The commenters did not provide supporting evidence 
as to why the dunes sagebrush lizard should be listed as a threatened 
species. We cannot consider regulatory implications, such as the 
flexibility provided by a potential 4(d) rule, in determining the 
status of a species.

Comments From States

    (2) Comment: We received several comments regarding critical 
habitat designation for the dunes sagebrush lizard. One State agency 
expressed that not designating critical habitat at the time of listing 
calls into question the Service's conclusions, and they requested that 
the Service not delay designating critical habitat and the associated 
analysis of the economic impact of a critical habitat designation for 
the species. Other commenters expressed concern over a delay in 
designating critical habitat, noting either the need for an evaluation 
of economic impacts or concern that the delay will lead to additional 
destruction of dunes sagebrush lizard habitat. Another State agency 
indicated that they plan to assist with any necessary analysis in the 
development of a critical habitat designation for this species.
    Our response: As described below under II. Critical Habitat, we 
find the designation of critical habitat to be prudent but not 
determinable at this time. Because the evaluation of economic impacts 
comes into play only in association with the designation of critical 
habitat under section 4(b)(2) of the Act, we did not engage in any 
evaluation of economic impacts to inform this final listing rule. We 
recognize that designation of critical habitat would create an 
additional layer of protection; however, we are still in the process of 
assessing the information needed to analyze the impacts of the 
designation. The Act allows the Service an additional year to publish a 
critical habitat designation if we find that critical habitat is not 
determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).
    (3) Comment: Two State agencies and several public commenters 
expressed concern for the impacts this listing rule will have on the 
economy, agriculture industry, and energy independence. One State 
agency also expressed concern for the impact listing will have on 
funding for education in Texas due to impacts to revenues from oil and 
gas.
    Our response: We acknowledge these concerns and, separate from this 
listing action, have worked with partners to develop voluntary 
conservation agreements to mitigate the impacts of industrial 
activities. We remain committed to continuing to do so. However, 
regarding this listing, the Act requires that listing determinations be 
made solely on the basis of the best scientific and commercial data 
available and the Congressional record is clear that economic analysis 
requirements of Executive Order 12291 and such statutes as the 
Regulatory Flexibility Act do not apply to any phase of determining the 
listing status of an entity under the Act.
    (4) Comment: Two State agencies and several individuals commented 
that the Service's analysis and listing determination disregard 
voluntary conservation efforts now and into the future. Several argued 
the candidate

[[Page 43750]]

conservation agreement (CCA) in New Mexico and the candidate 
conservation agreements with assurances (CCAAs) in both New Mexico and 
Texas offer sufficient protections and conservation such that listing 
of the species is not warranted. One State agency commented that 
listing the dunes sagebrush lizard as endangered undermines the 
voluntary conservation efforts put in place and will have detrimental 
impacts to the species by discouraging future voluntary conservation 
efforts.
    Our response: The Act requires us to make a determination using the 
best available scientific and commercial data after conducting a review 
of the status of the species and after taking into account those 
efforts, if any, being made by any State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect such 
species within any area under its jurisdiction. In line with that 
requirement, we considered all current and projected future impacts of 
conservation efforts on the status of the dunes sagebrush lizard. In 
addition, the listing of the species does not prevent the existing 
conservation agreements from operating or obstruct the development of 
additional conservation agreements or partnerships to conserve the 
species. The conditions of the CCA and CCAAs will remain in place for 
enrollees now that the dunes sagebrush lizard is listed as an 
endangered species. Once a species is listed as either endangered or 
threatened, the Act provides many additional tools to advance the 
conservation of listed species. Conservation of the dunes sagebrush 
lizard is dependent upon working partnerships with a wide variety of 
entities, including the voluntary cooperation of non-Federal 
landowners. Building partnerships and promoting cooperation of 
landowners are essential to understanding the status of species on non-
Federal lands and may be necessary to implement recovery actions such 
as reintroducing listed species, restoring habitat, and protecting 
habitat. Once a species is listed, for private or other non-Federal 
property owners, we offer voluntary safe harbor agreements (SHAs) that 
can contribute to the recovery of species, habitat conservation plans 
(HCPs) that allow lawful activities to proceed while minimizing effects 
to species, funding through the Service's Partners for Fish and 
Wildlife Program to help promote conservation actions, and grants to 
the States under section 6 of the Act.
    The existing CCA and CCAAs in New Mexico and Texas have provided, 
and continue to provide, many conservation benefits for the dunes 
sagebrush lizard. However, based on the information we reviewed in our 
assessment, we conclude that the risk of extinction for the dunes 
sagebrush lizard is high despite these efforts. For example, advances 
in mapping dunes sagebrush lizard habitat have allowed the Service to 
gain a better understanding of the extent of habitat loss and 
fragmentation for the species rangewide. We have quantified these 
habitat impacts with the mapping effort described in chapter 5 of the 
SSA report (USFWS 2024, pp. 88-111). Furthermore, these conservation 
agreements have not eliminated the loss of dunes sagebrush lizard 
habitat. The current buffer around duneland habitat in New Mexico is 30 
meters. As a result, development continues in close proximity to 
duneland habitat. This has led to increased habitat fragmentation and a 
loss of connectivity between important habitat patches. In Texas, the 
CCAAs promote avoidance and minimization of impacts to dunes sagebrush 
lizard habitat. However, these CCAAs still allow development within 
dunelands when mitigation measures are applied, although some of these 
mitigation measures, such as mesquite removal, have been shown to 
provide little conservation benefit (USFWS 2024, pp. 86-87). Thus, 
continued development in dunelands contributes to increasing 
fragmentation, which has failed to be offset by mitigation. Also, the 
accomplishments and level of success of the existing CCA and CCAAs 
differ between Texas and New Mexico, as pointed out by several 
commenters. Enrollment in the Texas Conservation Plan (TCP), one of the 
two CCAAs, in Texas, has declined significantly over the past several 
years and the plan has not performed as expected due to several 
factors, including implementation errors, low enrollment, activities of 
non-Participants, and stratification of enrolled and non-enrolled 
properties. The CCAA signed in 2020, which is the second CCAA in Texas, 
also currently has similar issues, such as low enrollment, 
stratification of properties, and lack of clarity to date on 
conservation measures and other activities. While conservation measures 
are a requirement of participation in the certificates of inclusion, we 
are unsure of the extent of conservation measure implementation in 
Texas, as well as the locations of areas where conservation is 
occurring. Thus, while we continue to coordinate with the plan 
administrators, based on performance reporting to date, it has not yet 
been demonstrated that these agreements will be adequate or effective 
at protecting the dunes sagebrush lizard or its habitat in Texas into 
the future. Therefore, the measures implemented by these agreements are 
not enough to reduce the risk of extinction of the dunes sagebrush 
lizard such that it does not meet the definition of an endangered 
species.
    (5) Comment: One State agency recommended the Service provide 
additional information regarding interpretation of a population 
viability analysis. Several public commenters also requested additional 
information on why modeling habitat is reliable for inferring dunes 
sagebrush lizard demographics. One public commenter suggested that the 
results of the population viability model from Leavitt and Acre (2021, 
p. 29) support a threatened listing determination.
    Our response: Our assessment of the viability of the dunes 
sagebrush lizard was based on the quantity and quality of habitat 
across its range. We chose this approach for several reasons. First, it 
provided a consistent methodology to assess populations rangewide, 
which was not available for any of the demographic data. Since the 
habitat assessment was based on aerial imagery and land cover data 
available across the entire species' range, and was not limited by 
State lines, we were able to generate comparable data to assess 
habitat. As noted in the SSA report, there are no rangewide data on 
population abundance and trends for the dunes sagebrush lizard (USFWS 
2024, pp. 35-41). Leavitt and Acre (2021, entire) provide population 
estimates for the New Mexico portion of the range only. There are no 
equivalent population estimates for Texas. Without consistent 
demographic data, our approach ensures that comparable data available 
across the species' range were used to provide a comprehensive 
assessment of the dunes sagebrush lizard's status.
    Second, given the habitat specificity of the dunes sagebrush 
lizard, we determined that an assessment of habitat is appropriate to 
evaluate the status of the species. There is ample evidence that loss 
and degradation of the habitat result in declines and extirpations of 
the dunes sagebrush lizard. As referenced in the SSA (USFWS 2024, pp. 
57-60), multiple studies have documented the impact of increasing well 
pad density on the species, providing a consistent metric to assess 
viability of dunes sagebrush lizard populations (Sias and Snell 1998, 
p. 1; Leavitt and Fitzgerald 2013, p. 9; Ryberg et al. 2015, p. 893; 
Johnson et al. 2016, p. 41; Walkup et al. 2017, p. 9).

[[Page 43751]]

    Although Leavitt and Acre (2021, entire) provide estimates of 
population abundance, this study has several limitations relevant to 
our assessment. Again, the study is limited to just the dunes sagebrush 
lizard's range in New Mexico. Second, density estimates were based on 
lizard surveys at several locations, noted as trapping grids. The 
spatial distribution of these grids is heavily biased: most are 
concentrated in a single analysis unit (southern Mescalero 1). The 
remaining analysis units had just one grid, except for northern 
Mescalero 4, which had none. This spatial bias may impact population 
density estimates. Third, the population estimates for each analysis 
unit were based on the assumption that all potentially suitable habitat 
is occupied at all times, which is likely an overestimate of true 
habitat occupancy. Numerous studies have revealed that given the 
colonization and source-sink dynamics of dunes sagebrush lizard 
populations, not all patches of adequate habitat may be occupied (USFWS 
2024, p. 36). The study did not consider where a block of habitat was 
of sufficient size to support a population of dunes sagebrush lizards, 
or whether they were fragmented and isolated to the point that 
colonization of these patches was unlikely. It also did not incorporate 
the well pad density thresholds that are correlated with decreases in 
dunes sagebrush lizard abundance in estimating population abundance. 
The survey grids used to inform the density estimates are located in 
relatively undisturbed, intact habitat and may not reflect dunes 
sagebrush lizard abundance in degraded habitat. Thus, the population 
estimates of Leavitt and Acre (2021, entire) are likely overestimates 
of the number of dunes sagebrush lizards on the landscape. We conclude 
that these estimates are insufficient for inferring population 
resiliency and that our habitat modeling provides a more reliable 
approach.
    Leavitt and Acre (2021, pp. 6-11) also performed a population 
viability analysis to estimate the probability of extirpation for each 
analysis unit in New Mexico. However, we do not rely on this analysis 
for several reasons. First, as noted above, the population estimates 
used as input for the model are biased and likely to be overestimates. 
Second, the population viability analysis uses two different model 
frameworks to estimate probability of extinction. Notably, these two 
models provide drastically different estimates; one model, which is 
based on the Vortex modeling framework, predicts the probability of 
extirpation to be less than 1 percent for all analysis units, whereas 
the other model predicts the probability is greater than 50 percent for 
all analysis units. These discrepancies are due to the differing 
analytical assumptions and data inputs for the two models. The 
difference in the outcome of these models reinforces our decision that 
a habitat model is the best way to avoid the apparent biases in 
existing survey data and to examine the threats to the species from 
habitat loss and fragmentation, which are the most impactful threats to 
the species. Hence, we did not rely on this model in our listing 
determination.
    (6) Comment: Two State agencies and several other commenters 
suggested that the Service did not appropriately consider population 
trends and population estimates for the dunes sagebrush lizard. They 
further expressed that these population estimates do not justify 
listing and that the Service failed to explain observed population 
increases. Commenters cited several studies referencing population 
estimates and trends, including Leavitt and Acre (2021, entire) and 
Acre and Hill (2023, entire).
    Our response: As discussed in section 2.6.3 of the SSA report 
(USFWS 2024, pp. 38-41), rangewide population data for the dunes 
sagebrush lizard do not exist to enable us to estimate abundance and 
population trends. As noted in comment response (5), the population 
estimates for New Mexico produced by Leavitt and Acre (2021, entire) 
are likely overestimates based on the assumptions embedded in the 
analysis. The survey data completed in New Mexico (i.e., Acre and Hill 
2023, entire), which are discussed in section 2.6.4 of the SSA report 
(USFWS 2024, pp. 41-43), only cover specific locations within the 
species' range where the dunes sagebrush lizard is known to occur. 
These studies represent targeted surveys in high-quality habitat to 
discern localized trends in the species, and, as such, we are unable to 
extrapolate these data to look at population trends universally or 
infer the status of the species rangewide. These data are also not 
representative of habitat across the species' range and do not provide 
companion surveys of fragmented habitat. Other studies have shown that 
habitat fragmentation is correlated with declines of the dunes 
sagebrush lizard, as discussed in the SSA report (USFWS 2024, pp. 54-
55). Additionally, the data referenced in the public comments (e.g., 
Acre and Hill 2023, entire) only covers a brief time period (5 years), 
which is not sufficient to infer long-term population trends. As such, 
surveys limited to high-quality habitat across a short time period 
provide too narrow of a dataset to infer rangewide populations trends. 
Our quantitative assessment of habitat condition provided a more 
comprehensive and consistent way to assess the status of the dunes 
sagebrush lizard rangewide.
    (7) Comment: One State agency commented the Service incorrectly 
used the terms ``well density'' and ``well pad density'' 
interchangeably, and, as such, conclusions concerning impacts to the 
dunes sagebrush lizard at certain well pad densities now and into the 
future are unclear, are unsupported, and should not form the basis for 
the listing. The commenter claims the studies referenced by the Service 
also use the terms interchangeably, and that the Service should not 
rely on Sias and Snell (1998, entire) to conclude that a density of 13 
well pads per square mile should be considered degraded habitat because 
the study preceded the advent of horizontal drilling.
    Our response: We agree that the terms ``well density'' and ``well 
pad density'' are not interchangeable and are a source of confusion. 
Our focus is on well pads, and the associated construction of road 
infrastructure, as they are central components of ground disturbance in 
oil and gas drilling and extraction. Appropriate clarifications have 
been made in the SSA report and this final rule. We also agree that 
Sias and Snell (1998, entire) conducted their study before the 
widespread implementation of more advanced horizontal drilling 
technologies and thus employed a more conflated definition of wells and 
well pads, essentially drawing no distinction between the two meanings. 
The term ``well(s)'' used by Sias and Snell (1998) is, however, 
equivalent to the more recent usage of ``well pad(s).''
    With these clarifications, we continue to conclude the best 
available science demonstrates that a density of 13 well pads per 
square mile constitutes degraded habitat for the species. Johnson et 
al. (2016, pp. 41, 51) provides an independent analysis that shows 
important declines in dunes sagebrush lizard densities at more 
conservative values of 5 and 8 well pads per square mile, with 
additional declines at 18 well pads per square mile. Leavitt and 
Fitzgerald (2013, p. 9) document consistently fewer captures of dunes 
sagebrush lizards in fragmented sites, which they define as 13 well 
pads or more per square mile. Even when the species was present, it was 
found in lower abundance when there were 13 or more well pads per 
square mile. This study also found that the dunes sagebrush lizard was 
one of the first species to disappear from areas with 13

[[Page 43752]]

well pads or more per square mile. Further, this study notes that 
trapping grids located in areas that were more fragmented by 
development had fewer large dune blowouts, a key feature of dunes 
sagebrush lizard habitat and ecology, compared to non-fragmented areas. 
Walkup et al. (2017, pp. 5, 9, 10) confirmed that habitat 
fragmentation, again areas defined as having more than 13 well pads per 
square mile, resulted in very low capture rates and that the 
demographic structure of dunes sagebrush lizard populations in 
fragmented grids was clearly disrupted compared to unfragmented grids. 
The study concludes that too few dunes sagebrush lizards were present 
in fragmented areas to support a self-sustaining population. We, 
therefore, elected to use 13 well pads per square mile to describe 
degraded habitat due to the strong consensus in the literature from 
1998-2017 and because there is clear evidence it is an appropriate 
measure of degraded habitat (USFWS 2024, p. 60).
    Our assessment of future habitat conditions is based on a 
comprehensive analysis by Pierre et al. (2020, entire) that modeled 
landscape alterations from oil and gas well pad construction through 
the year 2050. Via the application of three discrete scenarios that 
project different levels of landscape-level impacts (low, medium, and 
high impact) across the Permian Basin, this study incorporated many of 
the trends and market forces that influence oil and gas development. In 
addition, to inform the placement and characteristics of modeled well 
pads, Pierre et al. (2020, pp. 3-5) accounted for the size and 
technological advances in horizontal drilling, which is capable of 
clustering multiple well heads on an individual well pad. We have 
concluded that both the current and future characterizations of well 
pad impacts and degraded habitat conditions presented in our analysis 
are based solely on the best scientific and commercial data available 
(USFWS 2024, pp. 111-112, 187).
    (8) Comment: Two State agencies and several members of the public 
commented that the Service's conclusions about future impacts of oil 
and gas activities are exaggerated, are highly speculative, are based 
on antiquated data, and have high levels of uncertainty, which cause 
them to be insufficient to justify listing the dunes sagebrush lizard. 
Some of the commenters believe the SSA report and proposed rule fail to 
account for several technological advancements that significantly 
reduce impacts of oil and natural gas activities on the dunes sagebrush 
lizard and its habitat. The commenters identified these advancements as 
including three dimensional (3D) seismic surveys, horizontal and 
directional drilling, multi-well pads, centralized facilities, shorter 
drilling and well completion timeframes, closed-loop drilling fluid 
systems, and enclosed liquid gathering systems.
    Our response: We agree that advances in oil and gas drilling and 
extraction technologies represent a significant reduction in ground 
disturbance relative to historical practices. To account for this, we 
derived a set of future impact scenarios that empirically modeled both 
trends that drive demand and technologies that cluster multiple wells 
on a given well pad (Pierre et al. 2020, p. 4; USFWS 2024, p. 111). 
This analysis is presented in the SSA report (USFWS 2024, pp. 118-126) 
and represents the best available projections of future oil and gas 
drilling based on past well placement, market forces, and technological 
innovation. Our analysis demonstrates that across all three scenarios 
there will be continued loss of dunes sagebrush lizard habitat by 2050, 
although there were differences in the magnitude of overall habitat 
loss among the three scenarios.
    Nonetheless, our listing determination that the dunes sagebrush 
lizard meets the Act's definition of an ``endangered species'' is 
supported by the current condition of the habitat and the risk that 
condition poses to the dunes sagebrush lizard throughout all of its 
range. The existing landscape includes a vast number of historical and 
unrestored well pads, as well as their associated road infrastructure. 
This enduring legacy of the oil and gas industry, spanning over a 
century of vertical drilling practices, represents a significant 
hindrance to dunes sagebrush lizard dispersal and drastically 
compromises habitat quantity and quality (USFWS 2024, pp. 56-60). We 
recognize that horizontal drilling has been implemented since 2008, but 
that does not allay the myriad issues with the degree and extent of 
historical well pads or the small proportion of well pads that have 
been reclaimed and returned to adequate dunes sagebrush lizard habitat. 
Further, we understand that many historical well pads are being 
reutilized for horizontal drilling; therefore, they are not currently 
considered to be candidates for future habitat restoration efforts and 
remain a source of ground disturbance.
    In summary, the current condition of the dunes sagebrush lizard's 
habitat is highly fragmented and of diminished quality. As a result of 
the present destruction and modification of dunes sagebrush lizard 
habitat, which has resulted in substantial reductions in the resiliency 
of populations, the species meets the Act's definition of an 
``endangered species,'' and we are listing it as such in this rule.
    (9) Comment: One State agency commented that the Service failed to 
provide meaningful data to justify the reversal of the Service's 2012 
finding that the dunes sagebrush lizard does not meet the statutory 
definition of an endangered or threatened species under the Act (see 77 
FR 36872; June 19, 2012).
    Our response: The 2024 decision to list the dunes sagebrush lizard 
as an endangered species relies on the recently completed SSA, which 
takes into account the best scientific data available on the species, 
including updated mapping efforts and additional research on the 
species and its habitat conducted or published after 2012. Between 2012 
and 2024, mapping efforts by Natural Heritage New Mexico and Hardy et 
al. (2018, entire) (discussed in the SSA report's appendix B) have 
provided a resource for assessing dunes sagebrush lizard habitat 
rangewide (USFWS 2024, pp. 182-189). This resource was not available at 
the time of the 2012 listing decision. There has also been additional 
research published since 2012 on the dunes sagebrush lizard's 
population biology, such as factors influencing dispersal and 
population genetic structure (USFWS 2024, pp. 35-43), and the negative 
effects of habitat degradation on the species' persistence (USFWS 2024, 
pp. 55-59). With this additional information, we were able to re-
evaluate the viability of the species more fully on these factors. This 
process revealed that the species' current condition places it in 
danger of extinction due to identified threats, including oil and gas 
development in dunes sagebrush lizard habitat. Data from the U.S. 
Census Bureau between 2010 and 2020 (Permian Basin Regional Planning 
Commission 2023, entire) indicate that there was continued human 
population growth in the Permian Basin Region. This growth is likely 
connected to increased industry development. Further, several studies 
project continued growth of extraction-related jobs in both Texas 
(Texas Oil and Gas Association 2023, entire) and New Mexico (New Mexico 
Department of Workforce Solutions 2023, p. 36). Again, this projection 
of continued growth of the oil and gas development industry indicates 
that there will continue to be impacts to the habitat of this species.

[[Page 43753]]

    Oil and gas development, along with other threats like frac sand 
mining, continue to contribute to habitat loss and fragmentation, the 
primary threats to the dunes sagebrush lizard. Because restoration of 
shinnery oak duneland is not currently feasible, loss of habitat within 
duneland complexes must be viewed as a potential permanent impact to 
the species. In addition, the 2012 withdrawal was based on the 
implementation of newly developed conservation agreements, specifically 
the TCP in Texas (77 FR 36872). These agreements now have a track 
record that can be fully considered in evaluating the current and 
future viability of the dunes sagebrush lizard. As discussed below, the 
conservation efforts in place have not mitigated or ameliorated the 
threats to the dunes sagebrush lizard such that it does not require the 
protections of the Act.
    (10) Comment: One State agency and several individuals commented 
that the Service exaggerated the threat of sand mining and associated 
surface disturbance in the proposed decision to list the dunes 
sagebrush lizard. The comments noted that sand mining only occurs in a 
small portion of the species' range, there are no peer review studies 
on the effects of sand mining on the dunes sagebrush lizard or its 
habitat, and the Service failed to demonstrate that frac sand mining is 
expanding or increasing now or that it will do so into the future.
    Our response: After reviewing information regarding the industry, 
we concluded that frac sand mining poses a threat to dunes sagebrush 
lizard habitat due to extensive surface disturbance caused by the 
mining process. There are currently no peer-reviewed studies on the 
impacts of sand mines on the dunes sagebrush lizard. This is because 
frac sand mines only became prevalent in the area in 2017. Regardless, 
the best available science supports the conclusion that the excavation 
of sand is detrimental to the species. This is because frac sand mining 
results in the complete removal of surface habitat, including shinnery 
oak and sand dunes. Aerial imagery shows no shinnery oak duneland 
habitat remaining after a sand mine disrupts the surface for sand 
extraction and infrastructure. In our habitat analysis, we treated the 
footprint of sand mines as complete non-habitat for the dunes sagebrush 
lizard (USFWS 2024, pp. 62-63). These footprints were determined using 
aerial imagery obtained for each of the 18 known sand mines within the 
range of the dunes sagebrush lizard (USFWS 2024, pp. 110-111). Manually 
digitizing these features, while far more time consuming, is often more 
accurate than remote sensing methods, as depositional sand may obscure 
some features and blend them with non-anthropogenic landforms.
    Our use of only the mine footprints, rather than a larger mining 
area, to estimate impact to the dunes sagebrush lizard likely is an 
underestimation of effects. We did not categorize habitat surrounding 
the footprint of a mine as degraded or disturbed due to its proximity 
to these facilities. Thus, we treated habitat surrounding these mines 
as intact, unless other disturbances were present (e.g., well pads). 
The impacts of the mines themselves likely extend beyond their 
footprint by, for example, deflating surrounding sand dunes and 
damaging nearby vegetation (USFWS 2024, pp. 60-61). Also, several mines 
are notably located in areas that represent pinch-points in the dunes 
sagebrush lizard's range in Texas (USFWS 2024, p. 97), which may 
restrict dispersal between habitat patches.
    We based our estimates on the best available information regarding 
observed sand mine growth rates since the inception of the industry in 
west Texas, mainly imagery from the National Agricultural Imagery 
Program and MAXAR Technologies. Table C-1 in appendix C of the SSA 
report (USFWS 2024, pp. 194-195) presents sand mine growth estimates 
from the Texas State government, nongovernmental organizations, various 
contractors, and the sand mining industry itself. The range and 
distribution of these estimates track closely with our independent, 
empirical analysis; in fact, our high impact estimate of sand mine 
growth (74 acres per year) is notably less than several of the high 
estimates from the body of information compiled in the SSA report 
(86.5-145.8 acres per year). In addition, the 2020 CCAA in Texas 
authorizes up to 60 acres per year of habitat loss (considered to be 
take of the species) per mine, within any habitat class, which is 
roughly 10 percent more than our medium impact scenario (54 acres per 
year). Lastly, our low impact scenario (39 acres per year) is 
comparable with the lowest value (37.1 acres per year) from table C-1 
in the SSA report (USFWS 2024, pp. 196-197). Our analysis is in line 
with multiple previous estimates of sand mine growth from a wide 
variety of sources.
    Also, market analysis indicates that the frac sand mining industry 
in west Texas has additional opportunity for growth. Mace (2019, p. 42) 
indicates that the current frac sand capacity is meeting roughly 40 
percent of the total market demand and more than 30 potential mine 
sites can be identified within the Monahans Sandhills region. This 
study also notes that the total acreage purchased by individual 
operators is far greater than what is currently reported as disturbed. 
These future projections indicate that our model of 18 sand mines is a 
conservative estimate and additional habitat loss is likely.
    (11) Comment: Two State agencies and several other individuals 
commented that the Service's analysis on climate change impacts on the 
dunes sagebrush lizard are speculative, arguing the Service does not 
provide scientific literature or data to demonstrate impacts of climate 
change on the species.
    Our response: The Act requires that we use the best scientific data 
available when we make decisions to list a species, and we followed all 
Service policies and standards on data and information quality in our 
SSA report and this final rule. We concluded that the direct impacts of 
climate change on the dunes sagebrush lizard, its food, and its habitat 
are somewhat uncertain; there are no studies available that have 
examined the specific response of the dunes sagebrush lizard to a 
changing climate. However, we have presented a thorough assessment of 
likely future impacts of climate change in chapter 4.3 of our SSA 
report (USFWS 2024, pp. 72-75) based on our knowledge of the species 
and its habitat. Drought has become more frequent over the past several 
decades across the species' range (U.S. Drought Monitor 2022, 
unpaginated), which not only affects the dunes sagebrush lizard, but 
also the shinnery oak that is the foundation of the entire ecosystem. 
During drought, shinnery oak can lose its leaves or not even leaf-out 
(Peterson and Boyd 1998, p. 9). Recent droughts have resulted in a lack 
of the typical spring green-up for shinnery oak, instead occurring 
later with the seasonal summer monsoons (Johnson et al. 2016, p. 78). 
The timing of this green-up is important, as is provides shelter for 
adults as they become active in the spring and food for invertebrates 
that are consumed by the dunes sagebrush lizard.
    Effects of drought on shinnery oak can also have broader 
consequences for duneland habitat. Shinnery oak clones may reach 15 
meters (50 feet) in diameter, making large areas of duneland habitat 
vulnerable in the event of drought-induced oak mortality (Gucker 2006, 
p. 7). Any disruption to the groundwater in these ecosystems (e.g., 
drought) that lowers the water table may destabilize the dunes such 
that the system experiences a net loss in sand (Newton and Allen 2014, 
p. 4).

[[Page 43754]]

Furthermore, periods of low rainfall are likely to inhibit shinnery oak 
colonization of disturbed areas, limiting potential for restoration and 
natural ecological dynamics. Ultimately, given the close association 
between the dunes sagebrush lizard and shinnery oak, decline or loss of 
this habitat would have ramifications for dunes sagebrush lizard 
viability.
    Climate change is likely to increase the frequency and magnitude of 
drought in this region. On average, surface air temperatures across 
Texas are predicted to increase by 3 degrees Celsius ([deg]C) (5.4 
degrees Fahrenheit ([deg]F)) by 2099 (Jiang and Yang 2012, p. 238). In 
the southwest United States, temperature increases will be concentrated 
in the summer months. In Texas, the number of days exceeding 35 [deg]C 
(95 [deg]F) may double by 2050 (Kinniburgh et al. 2015, p. 8). 
According to climate change predictions, west Texas will experience 
greater variability in seasonal precipitation patterns with the 
greatest net loss experienced in winter (Jiang and Yang 2012, p. 238). 
An increase in drought frequency and intensity has been shown to be 
occurring throughout the range of the dunes sagebrush lizard 
(Kinniburgh et al. 2015, p. 62). Projections under future climate 
change indicate that groundwater resources will be further depleted 
with more extreme drought and increasing summer temperatures (Nielsen-
Gammon et al. 2020, pp. 5-7; Yoon et al. 2018, entire). Based on this 
information, we conclude that climate change will reduce the viability 
of the dunes sagebrush lizard due to the effects of drought on the 
species and its habitat.
    (12) Comment: Two State agencies commented that the Service's 
analysis and listing determination do not provide enough evidence or 
justification to warrant an endangered finding.
    Our response: We are required to make our determination based on 
the best scientific and commercial data available at the time of our 
rulemaking. We considered the best scientific and commercial data 
available regarding the dunes sagebrush lizard to evaluate its 
potential status under the Act.
    Also, in accordance with our peer review policy published on July 
1, 1994 (59 FR 34270), we solicited peer review of the SSA report from 
knowledgeable individuals with scientific expertise that included 
familiarity with the species, the geographic region in which the 
species occurs, and conservation biology principles. Additionally, we 
requested comments or information from other concerned governmental 
agencies, Native American Tribes, the scientific community, industry, 
and any other interested parties concerning our July 3, 2023, proposed 
rule. Comments and information we received helped inform this final 
rule. Further, information provided in comments on the proposed listing 
rule were evaluated and taken into consideration in the development of 
this final determination, as appropriate.

Public Comments

    (13) Comment: Several commenters suggested creating tailored 
prohibitions for the dunes sagebrush lizard, presumably through a rule 
promulgated under section 4(d) of the Act. Other commenters suggested 
that we did not provide information that would satisfy the Service's 
policy on section 9 prohibitions (59 FR 34272; July 1, 1994), which 
specifies that at the time of listing the Service will list specific 
activities that will not be considered likely to result in violation of 
section 9 of the Act.
    Our response: Tailored prohibitions promulgated under section 4(d) 
of the Act apply only to species listed as threatened; because we have 
determined that the dunes sagebrush lizard is an endangered species, 
the section 4(d) provisions do not apply this species.
    Section 9 of the Act makes it illegal for anyone to ``take'' 
(defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, collect, or attempt any of these actions) an endangered 
species. At this time, we are unable to identify specific activities 
that will not be considered likely to result in a violation of section 
9 of the Act beyond what is already clear from the descriptions of 
prohibitions or already excepted through our regulations at 50 CFR 
17.21. We estimate that most activities that result in surface 
disturbance or disruption of existing habitat conditions in identified 
habitat may be likely to result in take of the species. We provide 
further information regarding section 9 prohibitions under Available 
Conservation Measures, below. However, the mere promulgation of a 
regulation, such as listing a species under the Act, does not take 
private property, unless the regulation on its face denies the property 
owners all economically beneficial or productive use of their land, 
which is not the case with the listing of this species. Programs are 
available to private landowners for managing habitat for listed 
species, and permits can be obtained to protect private landowners from 
the take prohibitions when such taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity. Private 
landowners may contact their local Service field office to obtain 
information about these programs and permits.
    (14) Comment: One commenter suggested the SSA report and proposed 
rule do not use the best available science on habitat suitability, 
probability of occurrence mapping, and species distribution based on 
presence data from Walkup et al. (2022, entire).
    Our response: In assessing the status of the dunes sagebrush 
lizard, we developed a model that categorized and quantified habitat 
consistently across the species' range. We used the Hardy et al. (2018, 
entire) model in Texas because that model uses a methodology that can 
be consistently applied with the Natural Heritage New Mexico model 
(Johnson et al. 2016, entire) across the species' range using publicly 
available spatial data. In contrast, the Walkup et al. (2022, entire) 
models are limited to only a portion of the range (i.e., Monahans 
Sandhills in Texas), rely on data only available for a subset of that 
range, and rely on assumptions that limit applicability to our 
rangewide assessment. Walkup et al. (2022, entire) developed fine-scale 
occupancy models evaluating the probability of occurrence of the dunes 
sagebrush lizard across the species' range in Texas. Their occupancy 
model is not analogous to our habitat model, as it estimates the 
likelihood that dunes sagebrush lizard may be present in a certain 
area, rather than assessing the quality or quantity of habitat. While 
the LiDAR (Light Detection and Ranging) data used to develop these 
occupancy models present a novel inclusion of high-resolution data for 
fine-scale habitat modeling of dunes sagebrush lizard presence, their 
model predicted the likelihood of the species being present in a given 
area based on correlations between presence data (i.e., locations where 
the species has been detected) and environmental factors. The authors 
point out an inherent bias of their model in that areas closer to 
presence points have an inherently larger probability of occurrence. 
Unfortunately, the models are based on only 67 presence points obtained 
from 122 dunes sagebrush lizard observations (USFWS 2024, pp. 38-41). 
The limited survey data are due to lack of access to private land with 
missing or underrepresented counties within the range in Texas. Due to 
these data limitations, these models are based on data that are not 
random or evenly distributed across the potential range, likely biasing 
the model. Walkup et al. (2022, pp. 357-358) caution interpretation of 
low predicted probabilities of occurrence, citing that low probability 
of occurrence is likely inflated in their modeling approach due

[[Page 43755]]

to geographic gaps in the available dunes sagebrush lizard occurrence 
data. The authors point out issues with this modeling method that can 
contribute to bias and under-prediction of habitat. Walkup et al. 
(2022, pp. 357-358) emphasize the importance of validation in this type 
of modeling. Without validation with an independent data set, the 
modeling approach should be viewed simply as exploratory and not truly 
predictive modeling (see Tredennick et al. 2021, entire). Exploratory 
modeling helps in the process of identifying important habitat 
variables for species like the dunes sagebrush lizard but cannot be 
applied predictively across the range without the critical validation 
step. Thus, Walkup et al. (2022, pp. 357-358) call for the importance 
of obtaining more survey data for the dunes sagebrush lizard to address 
the importance of validation. In light of these limitations, we found 
the Hardy et al. (2018, entire) model to be a more reliable predictor 
of species occupancy across the entire range of the dunes sagebrush 
lizard.
    (15) Comment: Several commenters suggested that the Service 
inappropriately interpreted the impacts of habitat loss or disturbance 
on dunes sagebrush lizard abundance and density. Commenters suggested 
the Service does not demonstrate that oil and gas production and sand 
mining are impacting the dunes sagebrush lizard's population, and that 
habitat fragmentation does not mean habitat vanishes or decreases long 
term but that it may shift in space. Several commenters further 
expressed that the Service does not know how much habitat is critical 
to the species' survival and that our analysis overinflates the areas 
that should be considered habitat.
    Our response: As discussed in section 4.1 of the SSA report, the 
largest threat to the dunes sagebrush lizard is habitat loss and 
fragmentation, and dunes sagebrush lizard population declines in 
fragmented landscapes have been repeatedly observed (USFWS 2024, pp. 
56-71).
    Dunes sagebrush lizard habitats may shift spatially over geological 
time; however, as discussed in section 2.5.7 of the SSA report (USFWS 
2024, pp. 34-35), this is a slow process that takes decades, centuries, 
and even millennia to occur and does not happen during a biologically 
meaningful time period for dunes sagebrush lizard populations 
(Fitzgerald et al. 1997, p. 28; Dzialak et al. 2013, p. 1371-1372, 
1379-1383; Hardy et al. 2018, p. 27). Additionally, as discussed in 
section 2.6.2 of the SSA report (USFWS 2024, pp. 36-38), the dunes 
sagebrush lizard may not occur in all areas of suitable habitat due to 
natural extinction-colonization dynamics (Fitzgerald et al. 1997, p. 
28; Painter et al. 1999, p. 51; Fitzgerald et al. 2005, p. 1; Walkup et 
al. 2022, pp. 358; Acre and Hill 2023, p. 11. However, the 
fragmentation that exists on the landscape and the species' limited 
dispersal ability often prevent dunes sagebrush lizards from moving 
amongst disconnected patches of habitat. In some cases, due to 
fragmentation, the dunes sagebrush lizard may have once existed within 
a patch or patches of suitable habitat, but, because of stochastic 
events, the species may have disappeared there, and the fragmentation 
that currently exists on the landscape can prevent dispersal to these 
unused patches of habitat. Due to the habitat requirements of the dunes 
sagebrush lizard, these patches of habitat that may be considered 
suitable habitat but may be unoccupied, or may have low levels of 
occupation that may be difficult to detect, could be important areas in 
future recovery actions restoring connectivity between occupied and 
unoccupied sections of habitat.
    (16) Comment: Several commenters note well drilling data from the 
New Mexico Energy, Minerals and Natural Resources Department and the 
Texas Railroad Commission often include wells that are abandoned or 
plugged and can contain multiple log entries for the same well over 
time. Commenters claim that the Service does not indicate whether 
duplicate well entries were removed in the refined habitat model, and 
they note that, if the Service did not conduct such a screening, the 
Service might be over-classifying areas as disturbed or degraded.
    Our response: We agree that the New Mexico Energy, Minerals and 
Natural Resources Department and the Texas Railroad Commission 
databases contain records of wells now plugged or abandoned. That does 
not, however, indicate a lack of ground disturbance on either 
historical or more contemporary well pads. Our focus is on ground 
disturbance, as that is a key element of dunes sagebrush lizard habitat 
condition. We, therefore, visually reconciled the above databases with 
recent aerial imagery and remotely sensed land cover modeling to 
validate the spatial coincidence between the well locations and 
persistent ground disturbance, which showed a high degree of agreement. 
Further, there has been little well pad reclamation for plugged, 
abandoned, or otherwise non-active wells in this area; while there may 
be no drilling equipment present at a given site, the installed caliche 
well pad and associated road infrastructure often remain intact, which 
leads to habitat loss and fragmentation for the species.
    We did evaluate these databases for duplicate well entries. Within 
Texas, including the area adjacent to the New Mexico border (Mescalero 
7 analysis unit), there were 8,316 total well records but only a single 
record (0.01 percent) was coincident. Similarly, in southeast New 
Mexico, there were 82 spatially identical records (0.6 percent) out of 
13,283 total well records. In addition, there are many instances, in 
both New Mexico and Texas, where a well pad exists with no record in 
the State databases of well installation or drilling activity.
    (17) Comment: Several commenters suggested the analysis in the SSA 
report does not sufficiently consider the different components of the 
oil and gas lifecycle, the temporary nature of the impacts, and the 
process of decommissioning and removal of well infrastructure. These 
comments suggested that the Service improperly assumes that ongoing and 
future oil and gas development will have deleterious effects on the 
dunes sagebrush lizard.
    Our response: While the infrastructure from oil and gas development 
placed on the landscape may be limited to a lifecycle of 20-30 years 
and disturbance from human activity primarily occurs during the 
beginning stages of well development, the impact to the landscape, and 
loss of dunes sagebrush lizard habitat, is effectively permanent. Once 
the infrastructure, including all the physical infrastructure and the 
caliche used for the well pads and roads, are removed, the physical 
form of the landscape remains altered. The shinnery oak dunelands that 
the dunes sagebrush lizard relies on for habitat are flattened and 
removed during development. Even if a well pad is completely reclaimed, 
the sand dunes are lost until long-term geologic processes that take 
centuries and even millennia to occur can recreate the dunes (USFWS 
2024, p. 34). Due to the dunes sagebrush lizard's reliance on this very 
specific and restricted habitat of shinnery oak dunes within the 
Mescalero and Monahans Sandhills, the species is highly susceptible to 
habitat loss and fragmentation, with loss of this habitat being the 
greatest threat to the species, as described in detail in the SSA 
report (USFWS 2024, pp. 55-70). Removal of shinnery oak dunelands can 
impair breeding, feeding, sheltering, dispersal, and survival, causing 
declines in abundance or even loss of populations. Degradation and 
fragmentation of shinnery oak dunelands may be irreversible; once

[[Page 43756]]

disturbed, these dunelands shift to alternative stable states of other 
habitat type and, to date, attempts to restore this habitat have been 
unsuccessful at a large scale (Ryberg et al. 2015, p. 896; Johnson et 
al. 2016, p. 34). Reclaiming unused well pads is beneficial to the 
dunes sagebrush lizard because it allows for improved connectivity 
between dunelands. However, to date, there have been no successful 
efforts to recreate lost habitat.
    (18) Comment: Commenters requested clarification on the relative 
importance of various habitat types to the dunes sagebrush lizard and 
justification on how they were classified and summed. One commenter 
believed the dunes sagebrush lizard is not associated with open sand 
dunes, grass dunes, mesquite shrublands, and mesquite grasslands, and 
that these land covers are not described as suitable habitat for the 
species.
    Our response: The habitat categories we developed for the SSA, 
namely shinnery oak duneland and shinnery oak supportive habitat, were 
based on published information regarding habitat use by the dunes 
sagebrush lizard (Johnson et al. 2016, entire; Hardy et al. 2018, p. 
21). As described in section 5.1.2 of the SSA report (USFWS 2024, pp. 
89-91), shinnery oak duneland is the top-quality habitat that the 
species uses most for breeding, feeding, and sheltering. This category 
includes areas with less than 10 percent mesquite cover in New Mexico, 
and less than 5 percent mesquite cover in Texas. The difference between 
the two States is due to data availability and the resulting habitat 
categories defined by the separate mapping efforts for each portion of 
the dunes sagebrush lizard's range. Johnson et al. (2016, entire) and 
Hardy et al. (2018, entire) found declines in the dunes sagebrush 
lizard at these levels of mesquite density. Also, shinnery oak sand 
dunes begin to lose their structure at mesquite densities above these 
levels (USFWS 2024, p. 68). Most known dunes sagebrush lizard 
observations have been within shinnery oak duneland.
    Shinnery oak supportive habitat includes habitat around the 
shinnery oak dunelands that the species may use for dispersal, feeding, 
and sheltering; however, no breeding has ever been recorded in this 
habitat. Shinnery oak supportive habitat also serves to stabilize 
shinnery oak duneland habitat against threats from anthropogenic 
disturbance. Dunes sagebrush lizards have been observed within this 
habitat type, although to a lesser degree than in shinnery oak 
dunelands. For a more detailed description, refer to the SSA report's 
section 5.1.2 (USFWS 2024, pp. 89-91) and appendix B.
    Commenters suggested that areas of open sand dunes are not 
associated with the dunes sagebrush lizard. This assertion is 
inconsistent with the data we have reviewed for the species. Open sand 
dunes were included as suitable habitat in all of the habitat modeling 
to date (i.e., Fitzgerald et al. 2011, entire; Johnson et al. 2016, 
entire; Hardy et al. 2018, entire; Walkup et al. 2022, entire). As 
noted in Fitzgerald et al. (2011, p. 3), an important component of the 
habitat is open spaces clear of all vegetation, which are used for 
foraging. In Walkup et al. (2022, p. 355), both models showed a high 
probability of dunes sagebrush lizard occurrence in the large open sand 
dunes of Winkler County, Texas. As noted in Hardy et al. (2018, pp. 21-
22), historical and current survey data have documented dunes sagebrush 
lizards within the interior of large open dune fields having an absence 
of vegetation. While both Hardy et al. (2018, p. 22) and Johnson et al. 
(2016, p. 85) document the majority of species location data in 
shinnery oak dunefields (which we include in the shinnery oak dunelands 
habitat class), both note that this is not always the case and 
observations are documented within the large open dunes in both New 
Mexico and Texas. We agree that the dunes sagebrush lizard may not 
always be present in a given suitable habitat class, but unoccupied 
areas support future dispersal and formation of new populations (USFWS 
2024, pp. 35-43) and provide structural support to the sand dunes that 
the species depends on (USFWS 2024, pp. 28-35).
    (19) Comment: Commenters questioned the reliability of the 
geospatial analysis methods we used and requested validation exercises 
be performed to confirm reliability. One commenter believed the Hardy 
et al. (2018, entire) map should not have been used as a starting point 
for the SSA habitat map because it is a pre-existing landcover map that 
had minimal ground-truth analysis and the occurrence and suitability 
assumptions in the Hardy et al. (2018, entire) map were based on 
environmental data and expert opinion without the use of dunes 
sagebrush lizard detection/non-detection data.
    Our response: For species with limited data or where there are 
geographical gaps in data collection, habitat-based maps provide a 
mapping approach that is unbiased relative to available occurrence 
data. Habitat-based mapping using environmental variables, previously 
peer-reviewed literature, and expert input is a commonly used approach 
in wildlife biology and conservation, especially for species, like the 
dunes sagebrush lizard, that have limited survey data. Much of the 
current observational data for the species, including the data that 
were used to build the models underlying Walkup et al. (2022, entire), 
are based on surveys where the methods employed have been inconsistent, 
lack sufficient survey effort, and result in a low detection 
probability, which can lead to a considerable error rate (Leavitt 2019, 
pp. 6-11; USFWS 2024, p. 87). The habitat-based approach that we used 
avoids these biases.
    In addition, the Hardy et al. (2018, p. 10) effort did incorporate 
survey data from several sources in their evaluation and categorization 
of habitat classes. We also funded an accuracy assessment (Jensen and 
Hardy 2021, entire) that evaluated the Hardy et al. (2018, entire) map. 
While this accuracy assessment was not able secure property access and 
is thus not a ground-based approach, it utilized ultra high-resolution 
imagery obtained from small unmanned aerial system (sUAS) data 
collected in 2017 and 2018. Assessment by an independent, experienced 
analyst found an overall accuracy of the map to be over 70 percent, 
which is considered an acceptable level of accuracy for remote sensing 
(Jensen and Hardy 2021, entire).
    (20) Comment: One commenter suggested that evidence of past 
tebuthiuron (a broad-spectrum herbicide) treatment alone fails to 
justify the Service's characterization of areas as degraded habitat. 
The commenter claims that regardless of historical treatments, if areas 
have the necessary landscape structures determined to be highly 
important to the dunes sagebrush lizard, then they should not be 
categorized as greatly reduced or nonexistent resources for breeding, 
sheltering, feeding, and dispersal.
    Our response: The degraded habitat classification describes a 
condition where resources for the dunes sagebrush lizard are greatly 
reduced. Specifically, constituent habitat elements that support 
breeding, feeding, sheltering, and dispersal have been functionally 
compromised. The degraded habitat class is a combination of (1) well 
pad densities of 13 well pads or more per square mile and (2) areas of 
herbicide treatment. Dunes sagebrush lizard abundance has been 
documented to be between 70 and 94 percent lower in sites previously 
treated with herbicides (e.g., tebuthiuron) as compared to non-treated 
sites (Snell et al. 1994, p. 11). Further, more recent examples from 
both aerial imagery and ground-based photos demonstrate the fundamental

[[Page 43757]]

alterations to the landscape where known treatments have occurred 
(Johnson et al. 2016 e.g., pp. 22, 30, 31, 92-94). This demonstrates 
the enduring impacts that herbicide treatments completed in the 1980s 
and 1990s represent to the fragile shinnery oak duneland ecosystem and 
thus dunes sagebrush lizard ecology.
    In combination with data provided by the Bureau of Land Management 
(BLM), the remote sensing analysis of current vegetation in New Mexico 
(Johnson et al. 2016, entire) identified areas where herbicide 
treatments have occurred. Within these areas, it is evident that the 
vegetation community has typically transitioned to grasslands or 
mesquite-grasslands and the sand dune structure necessary for the dunes 
sagebrush lizard has been generally destabilized. Several similar areas 
were noted in Texas but tended to be less pronounced; however, to be 
consistent across the species' entire range, we contacted the Texas 
State University team who conducted the habitat mapping in Texas (Hardy 
et al. 2018, entire) to address potential additions to their original 
habitat model. Based on aerial photo interpretation, we then submitted 
a series of proposed changes (i.e., herbicide-treated areas) to the 
Texas State University team for review and concurrence. We subsequently 
incorporated the agreed-upon changes into the Texas habitat mapping.
    (21) Comment: One commenter suggests the Service failed to include 
two recent studies demonstrating that herbicide and grazing can restore 
shinnery oak and shinnery-oak prairies (Zavaleta et al. 2016, entire; 
Carroll et al. 2019, entire).
    Our response: Zavaleta et al. (2016, entire) analyzed the impacts 
of combinations of tebuthiuron treatments and moderate-intensity 
grazing on shinnery oak prairie restoration. The goal of this study was 
to reduce the proportion of shinnery oak, thereby increasing the 
available forage for grazing cattle. Zavaleta et al. (2016, pp. 229-
231) deals with monotypic stands of shinnery oak that have a limited 
availability of grasses and forbs but does not address shinnery oak 
restoration in duneland complexes. In fact, Zavaleta et al. (2016, p. 
227) point out that they deliberately avoided sand dunes and blowouts 
``to minimize the potential for subsequent erosion.'' While the Service 
acknowledges the beneficial contribution of science related to 
restoration of prairie grasses and forbs, especially in the specific 
context of improving grazing potential, this study does not address the 
gap in scientific knowledge relating to restoration of shinnery oak 
duneland complexes that would improve and expand degraded habitat for 
the dunes sagebrush lizard.
    Carroll et al. (2019, entire) conducted a 1-year laboratory study 
on shinnery oak emergence and rhizome survival in which field-collected 
samples were exposed to shade and cold treatments. The narrow scope of 
the study prevents any broad assumptions or inference to be made about 
large-scale shinnery oak restoration. The authors did not attempt to 
demonstrate the potential for their methods to be used in an applied 
context. Carroll et al. (2019, p. 632) note that shinnery oak samples 
were collected from one location in western Oklahoma (Packsaddle 
Wildlife Management Area), which may not be representative of the 
entire range of shinnery oak, especially concerning native soils and 
precipitation. In fact, the location of this study represents the 
easternmost portion of the shinnery oak range, an area that receives 
greater and more consistent precipitation with soils that are not 
susceptible to erosion. These conditions are not representative of 
conditions throughout the dunes sagebrush lizard's range in New Mexico 
and Texas. Furthermore, Carroll et al. (2019, p. 634) assert that, in 
nature, shinnery oak regeneration primarily occurs via rhizomatous 
growth rather than sexual reproduction (i.e., acorns). The low survival 
rate of rhizomes in their experiment prevented analysis on the effects 
of temperature and shade on rhizome survival; therefore, the findings 
do not support a basis for applied shinnery oak restoration within the 
range of the dunes sagebrush lizard.
    (22) Comment: Several comments suggested there is confusion 
regarding the numbers of enrollment in conservation agreements across 
the dunes sagebrush lizard's range. Several commenters stated that 
there are several millions of acres of dunes sagebrush lizard habitat 
enrolled in these agreements.
    Our response: Through the public comment process, the Service 
received updated enrollment numbers for existing CCA and CCAAs provided 
by the commenter. We have updated the SSA report, and we consider that 
current enrollment data in this final rule.
    According to our habitat analysis, there are 505,857 hectares (1.25 
million acres) of dunes sagebrush lizard habitat rangewide, which 
include both duneland and supportive habitat. There are multiple 
overlapping explanations for the discrepancy between the size of the 
range of the dunes sagebrush lizard and the amount of land enrolled in 
the agreements. In some cases, multiple species are covered in the 
conservation agreements; as such, enrollment acreages may reflect areas 
outside of the dunes sagebrush lizard's range. Additionally, multiple 
types of enrollment (ranchers and oil and gas, surface and subsurface) 
can occur on the same acreage. This could cause specific acres to be 
enrolled, or to be considered to be enrolled, multiple times through 
different enrollment types. Also, habitat for other species may be 
enrolled in agreements. Finally, some of the CCAAs have enrolled areas 
that are outside of the dunes sagebrush lizard's range, resulting in 
total enrolled acreages greater than the acreage of dune sagebrush 
lizard habitat being covered by those CCAAs. The numbers stated by the 
permit holders are included in the SSA report, but there are not more 
acres of habitat enrolled than are present across the range of the 
dunes sagebrush lizard.
    (23) Comment: Several commenters suggested the Service failed to 
evaluate conservation efforts under the Policy for Evaluation of 
Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100; 
March 28, 2003), and the proposed listing fails to sufficiently account 
for conservation agreements and their benefits to the dunes sagebrush 
lizard now and into the future.
    Our response: PECE was developed to assess whether formalized 
conservation efforts that have not yet been implemented or demonstrated 
effectiveness may make listing of a species under the Act unnecessary 
or result in a species meeting the definition of a threatened species 
instead of an endangered species. Indeed, an evaluation of conservation 
efforts under PECE was used to support the withdrawal of the proposed 
rule to list the dunes sagebrush lizard following the adoption of the 
TCP in 2012 (see 77 FR 36872; June 19, 2012). Since then, the CCA/CCAA 
in New Mexico and the TCP in Texas have been implemented for more than 
a decade. The 2020 CCAA in Texas has had 3 years of implementation. 
They all now have a documented track record both of implementation and 
effectiveness, which we discuss in the SSA report (USFWS 2024, pp. 81-
87). Because these conservation efforts all have a documented track 
record, a PECE analysis was unnecessary and inapplicable, and they were 
considered in full in the SSA. We evaluated the performance, history, 
and projected future contributions to the species' conservation of 
these plans in our listing determination.

[[Page 43758]]

    An important aspect of our assessment is the quantification of 
dunes sagebrush lizard habitat using remotely sensed, publicly 
available data. These data indicate that large quantities of dunes 
sagebrush lizard habitat have been degraded and much of the species' 
range is fragmented by human development. Even with current 
conservation efforts in place, we determined that the reduction and 
fragmentation of habitat has elevated the risk of extinction for the 
dunes sagebrush lizard. Further implementation of these conservation 
efforts will be essential to protect the remaining habitat for the 
species.
    (24) Comment: Several commenters suggested that the listing 
determination requires analysis under the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.).
    Our response: Regulations adopted pursuant to section 4(a) of the 
Act are exempt from the National Environmental Policy Act (NEPA; 42 
U.S.C. 4321 et seq.) and do not require an environmental analysis under 
NEPA. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This includes listing, delisting, and reclassification rules, 
as well as critical habitat designations. In a line of cases starting 
with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the 
courts have upheld this position.
    (25) Comment: Several commenters requested an economic analysis 
regarding the impacts of listing the dunes sagebrush lizard as an 
endangered species.
    Our response: Section 4(b)(1) of the Act (16 U.S.C. 1533(b)(1)) 
requires us to make our listing determinations ``solely on the basis of 
the best scientific and commercial data available.'' Therefore, the Act 
does not allow us to consider the economic impacts of a listing whether 
over the short term, long term, or cumulatively. Please also see our 
response to (2) Comment, above.
    (26) Comment: We received several comments requesting that we 
designate the portions of the dunes sagebrush lizard's range in New 
Mexico and Texas as separate distinct population segments (DPSs) since 
those portions of the range are isolated from each other.
    Our response: Under the Act, any DPS of any species of vertebrate 
fish or wildlife which interbreeds when mature is a listable entity 
(see 16 U.S.C. 1532(16) and 1533(a)(1)). We have a policy that outlines 
the criteria we use in determining whether an entity qualifies as a DPS 
(61 FR 4722; February 7, 1996). The original petition to list the dunes 
sagebrush lizard requested the listing at the scale of the full range 
of the species; it did not request different listing actions for New 
Mexico and Texas. Congress has indicated that we should designate DPSs 
``sparingly and only when the biological evidence indicates that such 
action is warranted'' (Senate Report 151, 96th Congress, 1st Session). 
Therefore, based on the intent of the original petition and Congress, 
we determined that identifying separate population segments is not 
appropriate in this situation.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
dunes sagebrush lizard is presented in the SSA report (version 1.3; 
USFWS 2024, pp. 16-42). Since the publication of the July 3, 2023, 
proposed rule (88 FR 42661), we updated the SSA report to provide the 
most current information available on the dunes sagebrush lizard. We 
updated enrollment figures for the CCA/CCAAs in New Mexico and Texas, 
as well as providing clarification on the geographical coverage of 
these enrollments (USFWS 2024, pp. 84-87). During the proposed rule's 
public comment period, we received new information on effective 
population estimates for the dunes sagebrush lizard (USFWS 2024, pp. 
40-41) and several threats, notably groundwater pumping, sand mines, 
and human population growth (USFWS 2024, pp. 75-80, 127). This finding 
takes into account those changes made in the SSA report in reaching the 
conclusion that the dunes sagebrush lizard is at risk of extinction.
    The dunes sagebrush lizard is a species of spiny lizard endemic to 
the shinnery oak dunelands and shrublands of the Mescalero and Monahans 
Sandhills in southeastern New Mexico and western Texas. Most dunes 
sagebrush lizard adults live for 2 to 4 years and reproduce in the 
spring and summer (Degenhardt and Jones 1972, p. 216; Cole 1975, p. 
292; Snell et al. 1997, p. 9; Fitzgerald and Painter 2009, p. 200; 
Hibbitts and Hibbitts 2015, p. 156). Males are territorial and compete 
to attract and mate with females (Fitzgerald and Painter 2009, p. 200). 
Females establish nests underground in shinnery oak duneland 
vegetation, where they lay an average of five eggs per clutch and lay 
either one or two clutches in a year (Hibbitts and Hibbitts 2015, p. 
156; Hill and Fitzgerald 2007, p. 30; Ryberg et al. 2012, p. 583). 
Hatchlings emerge approximately 30 days after eggs are laid (Ryberg et 
al. 2012, p. 583; Fitzgerald and Painter 2009, p. 200). Eggs and young 
dunes sagebrush lizards are susceptible to natural mortality from 
environmental stress and predation.
    This species is a habitat specialist that depends on shinnery oak 
duneland habitat to provide appropriate substrate for nests, cover for 
young, and food resources as juvenile lizards mature into adults 
(Fitzgerald et al. 1997, p. 4; Hibbitts et al. 2013, p. 104; Hardy et 
al. 2018, p. 10). The Mescalero and Monahans Sandhills ecosystems are 
composed of ancient sand dune fields formed and maintained by wind and 
shifting sand, and they are partially stabilized by shinnery oak 
(Ryberg et al. 2015, pp. 888, 893; Walkup et al. 2017, p. 2). These 
ecosystems are characterized by a patchy arrangement of narrow, almost 
linear sand dunes embedded in a matrix of shinnery oak shrubland flats 
(Fitzgerald and Painter 2009, p. 199; Ryberg et al. 2015, p. 890). 
Within the sand dunes themselves, dunes sagebrush lizards rely on open 
dune blowouts, which typically form on the leeward side of established 
vegetation (Walkup et al. 2022, pp. 13-14). Dune blowouts are bowl-
shaped depressions in the sand dunes that form when disturbance removes 
stabilizing vegetation.
    The landscape created by the shinnery oak duneland ecosystem is a 
spatially dynamic system in which the location and presence of sand 
dunes is not static and shifts over time (Dzialak et al. 2013, entire). 
Spatial variation within habitat patches can drive regional population 
dynamics by shaping movement, behavior, and habitat selection (Ryberg 
et al. 2015, p. 888). Dunes sagebrush lizards form small, localized 
populations called neighborhoods that are interconnected through 
dispersal (Ryberg et al. 2013, entire). Long-term population stability 
is maintained through interconnected neighborhoods experiencing 
localized colonization and extirpation (Fitzgerald et al. 1997, p. 28; 
Fitzgerald et al. 2005, p. 1).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. On April 5, 2024, jointly with the National Marine 
Fisheries Service, the Service issued a

[[Page 43759]]

final rule that revised the regulations in 50 CFR 424 regarding how we 
add, remove, and reclassify endangered and threatened species and the 
criteria for designating listed species' critical habitat (89 FR 
24300). On the same day, the Service published a final rule revising 
our protections for endangered species and threatened species at 50 CFR 
17 (89 FR 23919). These final rules will be in effect on May 6, 2024 
prior to the effective date of this final rule for the dunes sagebrush 
lizard. Our analysis for this decision applied the 2024 regulations. 
Given that we proposed listing this species under our prior regulations 
(revised in 2019), we have also undertaken an analysis of whether our 
decision would be different if we had continued to apply the 2019 
regulations and we concluded that the decision would be the same. The 
analyses under both the regulations currently in effect and the 2019 
regulations are available on https://www.regulations.gov.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The 
foreseeable future extends as far into the future as the Services can 
make reasonably reliable predictions about the threats to the species 
and the species' responses to those threats. The Services will describe 
the foreseeable future on a case-by-case basis, using the best 
available data and taking into account considerations such as the 
species' life-history characteristics, threat-projection timeframes, 
and environmental variability. The Services need not identify the 
foreseeable future in terms of a specific period of time.
    When evaluating the status of the species, we must review the 
degree of certainty and foreseeability concerning each of the threats 
to the species and the species' responses to those threats. We must 
assess the nature of the best scientific and commercial data available 
concerning each threat and the degree to which the data allow us to 
make reliable predictions. Predictions about the occurrence of an event 
or a response in the future are inherently uncertain. We look not only 
at the foreseeability of threats, but also at the foreseeability of the 
impact of the threats on the species. Data that are typically relevant 
to assessing the species' biological response include species-specific 
factors such as lifespan, reproductive rates or productivity, certain 
behaviors, and other demographic factors. In some cases, a species' 
responses to a foreseeable threat will manifest immediately; in other 
cases, it may be multiple generations before a foreseeable threat's 
effect on the species can be observed. But in each case, we must be 
able to make reliable predictions about the future impact to the 
species from the foreseeable threat. The further into the future that 
we assess threats to a species or a species' responses to threats, the 
greater the burden on the Services to explain how we can conclude that 
those future threats or responses remain foreseeable--that is, that our 
assessments of them are based on reasonably reliable predictions out to 
that point in the future. In making these predictions, we must avoid 
speculation and presumption. Thus, for a particular species, we may 
conclude, based on the extent or nature of the best data available, 
that a trend has only a certain degree or period of reliability, and 
that to extrapolate the trend beyond that point would constitute 
speculation. The foreseeable future extends only so far as those 
predictions are reliable. ``Reliable'' does not mean ``certain''; it 
means sufficient to provide a reasonable degree of confidence in the 
prediction, in light of the conservation purposes of the Act.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be listed as an endangered or threatened 
species under the Act. However, it does provide the scientific basis 
that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    To assess the dunes sagebrush lizard's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years); redundancy is the ability of the species

[[Page 43760]]

to withstand catastrophic events (for example, droughts, large 
pollution events); and representation is the ability of the species to 
adapt to both near-term and long-term changes in its physical and 
biological environment (for example, climate conditions, pathogens). In 
general, species viability will increase with increases in resiliency, 
redundancy, and representation (Smith et al. 2018, p. 306). Using these 
principles, we identified the species' ecological requirements for 
survival and reproduction at the individual, population, and species 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full updated SSA report (version 1.3) can be found 
at Docket No. FWS-R2-ES-2022-0162 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future conditions, to assess the species' overall viability 
and the risks to that viability.

Species Viability

    The key requirement for long-term viability of the dunes sagebrush 
lizard is large, intact, shinnery oak duneland ecosystems that 
facilitate completion of the species' life history and maintain healthy 
populations (Texas A&M University (TAMU) 2016, p. 3). Shinnery oak 
duneland habitat provides the primary features necessary to support 
neighborhoods of dunes sagebrush lizards, particularly sand dune 
blowouts that are essential for reproduction and other aspects of the 
species' life history (Fitzgerald et al. 1997, p. 4; Hibbitts et al. 
2013, p. 104; Hardy et al. 2018, p. 10; Walkup et al. 2022, pp. 13-14). 
The shinnery oak duneland and shrubland habitat that surrounds these 
blowouts are important to facilitate dispersal and maintain the 
structure of the sand dune formations (Machenberg 1984, p. 23; Kocurek 
and Havholm 1993, pp. 401-402; Gucker 2006, p. 14; Dhillion and Mills 
2009, p. 264).
    Since the Mescalero and Monahans Sandhills are dynamic ecosystems, 
habitat patches for the dunes sagebrush lizard can shift over time 
(Fitzgerald et al. 1997, p. 28; Dzialak et al. 2013, pp. 1371-1372, 
1379-1383; Hardy et al. 2018, p. 27). Long-term resiliency of the dunes 
sagebrush lizard is maintained through interconnected neighborhoods 
experiencing localized colonization and extirpation (Ryberg et al. 
2013, p. 1). A dunes sagebrush lizard population, even within a 
contiguous patch of habitat, is itself composed of aggregations of 
localized neighborhoods that interact with each other. That means dunes 
sagebrush lizards may not occur in all areas of suitable habitat due to 
natural extinction-colonization dynamics (Fitzgerald et al. 1997, p. 
28; Painter et al. 1999, p. 51; Fitzgerald et al. 2005, p. 1), and the 
current state of occupancy may not necessarily reflect the future state 
at a site (Walkup et al. 2018, p. 503). Thus, it is important to 
include the consideration of currently unoccupied but potentially 
suitable habitat patches within the species' range, especially since 
dispersal rates and their mechanisms are not well understood (Painter 
et al. 1999, p. 36; Hardy et al. 2018, p. 20). Scaling up to the 
species' range, the dunes sagebrush lizard is subdivided into three 
primary evolutionary lineages that are spatially discrete and have 
evolved in isolation since their initial founding (Chan et al. 2009, p. 
136; Chan et al. 2020, pp. 6-7). Two are found in Mescalero Sandhills, 
with one occurring in the northern portion of the sandhills (Northern 
Mescalero) and the second in the southern portion (Southern Mescalero). 
The third is exclusive to the Monahans Sandhills of west Texas. Despite 
a narrow contact zone between the Northern and Southern Mescalero 
lineages (Chan et al. 2020, p. 7), there is no evidence of intermixing 
or gene flow between these lineages. These three lineages cover 
different portions of the species' range and, therefore, are subject to 
different environmental conditions. For example, a latitudinal gradient 
in precipitation and temperature exists from north to south within the 
Mescalero and Monahans Sandhills. In general, moving 1[deg] latitude 
from north to south across the dunes sagebrush lizard's range results 
in a mean annual maximum temperature increase of 1.1 [deg]C (2 [deg]F) 
and a total annual precipitation decrease of 5 centimeters (cm) (2 
inches (in)) (Leavitt 2019, pp. 7-8; USFWS 2024, pp. 45-47). Potential 
evapotranspiration also increases from north to south (Holliday 2001, 
p. 101). The combination of isolation and environmental variation has 
likely facilitated adaptive differences between these lineages.
    These lineages are further subdivided into at least 10 different 
genetic groups, delineated primarily by mitochondrial DNA haplotypes 
and corroborated by nuclear microsatellite data (Chan et al. 2014, p. 
9; Chan et al. 2020, entire). These groups correspond to notable breaks 
and pinch points in the dune formations and reflect historical 
differentiation based on limited connectivity between contiguous 
habitat patches (Chan et al. 2020, p. 2). Within these groups, there 
appears to be varying levels of connectivity and gene flow, with 
evidence of isolation by distance and resistance in several areas in 
New Mexico (Chan et al. 2014, pp. 33-41; Chan et al. 2017, pp. 9-22). 
Despite evidence of some gene flow between these groups based on 
nuclear microsatellite data (Chan et al. 2020, p. 7), they appear to 
function as independent units with intermixing restricted to narrow 
contact zones. Thus, there is limited potential for natural 
recolonization should one or more of these groups become extirpated.

Threats

    We identified risk factors that have influenced the dunes sagebrush 
lizard and its habitat in the past and may continue to do so into the 
future. These include habitat destruction, modification, and 
fragmentation (Factor A); predation (Factor C); human-caused mortality 
(Factor E); invasive species (Factors A and E); pollution (Factors A 
and E); groundwater depletion (Factor A); and extreme weather and 
climate change (Factors A and E) (USFWS 2024, pp. 53-85). However, in 
this final rule, we will discuss only those factors in detail that 
could meaningfully impact the status of the species. Risk factors such 
as predation, pollution, invasive species, groundwater depletion, and 
human-caused mortality have more localized effects on the dunes 
sagebrush lizard, but, on their own, they are unlikely to significantly 
affect overall species viability. The primary risk factors affecting 
the current and future status of the dunes sagebrush lizard are habitat 
loss, fragmentation, and

[[Page 43761]]

degradation associated with oil and natural gas production and frac 
sand mining. Climate change is also likely to lead to more extreme 
weather events, particularly drought, that will further impact the 
dunes sagebrush lizard and its habitat. For a detailed description of 
the threats analysis, please refer to the SSA report (USFWS 2024, pp. 
53-85).
Habitat Destruction, Modification, and Fragmentation
    Due to its reliance on a very specific and restricted habitat type, 
the dunes sagebrush lizard is highly susceptible to habitat loss and 
fragmentation (Walkup et al. 2017, p. 2). At the individual level, the 
removal of shinnery oak vegetation and destruction of sand dunes has 
multiple negative effects on the dunes sagebrush lizard. The species is 
dependent on this habitat type for all aspects of its life history, 
including breeding, feeding, and sheltering (Young et al. 2018, p. 
906). Shinnery oak vegetation provides sheltering habitat for 
thermoregulation and refuge from potential predators (Machenberg 1984, 
pp. 16, 20-21; Degenhardt et al. 1996, p. 160; Snell et al. 1997, pp. 
1-2, 6-11; Fitzgerald et al. 1997, p. 26; Peterson and Boyd 1998, p. 
21; Painter et al. 1999, pp. 1, 27; Sartorius et al. 2002, pp. 1,972-
1,975; Painter 2004, pp. 3-4; Dhillion and Mills 2009, p. 264; Leavitt 
and Acre 2014, p. 700; Hibbitts and Hibbitts 2015, p. 157). It also 
provides habitat for the prey (e.g., insects and other terrestrial 
invertebrates) consumed by the dunes sagebrush lizard (Degenhardt et 
al. 1996, p. 160; Degenhardt and Jones 1972, p. 217; Fitzgerald and 
Painter 2009, p. 199; Leavitt and Acre 2014, p. 700). Dunes sagebrush 
lizards move exclusively through shinnery oak vegetation to disperse 
between the sand dune blowouts that support nesting and reproduction 
(Fitzgerald et al. 1997, p. 24). Since the dunes sagebrush lizard 
breeds exclusively in sand dune blowouts, loss of sand dunes eliminates 
breeding habitat for the species.
    At the population level, habitat destruction and fragmentation can 
affect the dunes sagebrush lizard's viability in multiple ways. Loss of 
habitat can lead to the reduction or even loss of populations, and 
those populations that do remain are likely smaller and more isolated, 
elevating their vulnerability to stochastic events (Henle 2004, p. 239; 
Devictor et al. 2008, p. 511; Hibbitts et al. 2013, p. 111; Leavitt and 
Fitzgerald 2013, p. 6; Walkup et al. 2017, p. 2). Fragmentation may 
also result in degradation of dune-blowout landforms beyond the 
immediate footprint of developed areas (Leavitt and Fitzgerald 2013, p. 
9; Walkup et al. 2017, p. 11). Fragmented sites are often of lower 
quality, possessing fewer, more dispersed large dune blowouts as well 
as more large patches of flat open sand and barren ground (Leavitt and 
Fitzgerald 2013, pp. 9-10), which are less likely to support robust 
populations.
    As populations and habitat patches disappear across the landscape, 
there are fewer ``stepping-stones'' to connect remaining populations 
through dispersal and colonization (Young et al. 2018, p. 910). Dunes 
sagebrush lizards are not known to disperse across large expanses of 
unsuitable habitat. Thus, a given population may have little chance of 
receiving immigrating individuals across areas where suitable habitat 
has been removed (Fitzgerald et al. 1997, p. 27). Movements of 
individual dunes sagebrush lizards between populations are hindered or 
precluded by fragmentation and do not occur at rates sufficient to 
sustain demographics necessary to prevent localized extirpations 
(Leavitt and Fitzgerald 2013, p. 11; Ryberg et al. 2013, p. 4; Walkup 
et al. 2017, p. 12; Young et al. 2018, p. 910). Over time, 
fragmentation isolates populations and results in a progressive decline 
in population abundance until, ultimately, the species becomes 
extirpated (Leavitt and Fitzgerald 2013, p. 12). Loss of habitat may be 
irreversible: once shinnery oak dunelands are disturbed, these 
landforms tend to shift to alternative stable states that are not prone 
to self-regeneration through ecological succession (Ryberg et al. 2015, 
p. 896; Johnson et al. 2016, p. 34).
    Oil and natural gas production--The dunes sagebrush lizard's range 
overlaps with the Permian Basin, a geologic province that hosts 
multiple basins each with multiple stratigraphic units from which 
hydrocarbons, water, or minerals are extracted. Oil and gas development 
involves many activities, such as surface exploration, exploratory 
drilling, oil field development, and facility construction, including 
access roads, well pads, and operation and maintenance. These 
activities can all result in direct habitat loss by disturbance and 
removal of shinnery oak duneland. Indirect habitat loss occurs from 
fragmentation of larger habitat into smaller parcels of suitable 
habitat. As habitat becomes fragmented, the overall stability of the 
shinnery oak sand dune formations decreases, promoting wind erosion and 
deflation of the dunes (Carrick and Kruger 2007, pp. 771-772; Breckle 
et al. 2008, pp. 442, 453-454; Mossa and James 2013, pp. 75, 88, 92; 
Engel et al. 2018, pp. 1-13; Forstner et al. 2018, pp. 3-21). 
Fragmentation can also result in edge effects in which the habitat 
directly adjacent to the converted areas is of lower quality. For 
example, habitat fragmentation can increase air temperatures and solar 
radiation, along with reducing the availability of microhabitats that 
can serve as thermal refugia for the dunes sagebrush lizard (Jacobson 
2016, pp. 3-4, 10).
    Several studies have demonstrated a negative relationship between 
oil well pad density and the number of dunes sagebrush lizards present 
at a site (Sias and Snell 1998, p. 1; Leavitt and Fitzgerald 2013, p. 
9; Ryberg et al. 2015, p. 893; Johnson et al. 2016, p. 41; Walkup et 
al. 2017, p. 9). A regression analysis that predicted a 25 percent 
reduction in the abundance of dunes sagebrush lizards at well pad 
densities of 13.64 per square mile, and a 50 percent reduction at well 
pad densities of 29.82 well pads per square mile (Sias and Snell 1998, 
p. 23). Based on that study, the proposed recommendation became that 
well pad densities in New Mexico be limited to 13 well pads per square 
mile (Painter et al. 1999, p. 3). Further research found that areas 
with 13 or more well pads per square mile have considerably lower 
abundance of dunes sagebrush lizards than unfragmented sites (Leavitt 
and Fitzgerald 2013, p. 9). Further, high well pad and road densities 
at the landscape scale result in smaller, fewer, and more dispersed 
sand dune blowouts that are less suited to dunes sagebrush lizard 
persistence (Leavitt and Fitzgerald 2013, p. 9). Marked declines in 
dunes sagebrush lizard occurrence in New Mexico have also been observed 
at well pad densities of 5 and 8 well pads per square mile, with no 
lizards found at well pad densities greater than 23 well pads per 
square mile (Johnson et al. 2016, p. 41). These results support the 
recommendation that 13 well pads per square mile should be considered 
``degraded'' habitat as a standard in the scientific literature. This 
effect extends to population persistence, as research has found that 
dunes sagebrush lizard populations have a relatively high 
susceptibility to local extinction in landscapes with 13 or more well 
pads per square mile (Walkup et al. 2017, p. 10). The network-like 
development of well pads and their connecting roads both isolate 
populations and disrupt the underlying geomorphologic processes 
required to maintain the shinnery oak dune formations.
    In many areas of oil and gas development, caliche roads are 
constructed in a grid-like network (Young et al. 2018, p. 6). Roads 
fragment

[[Page 43762]]

habitat and impede dunes sagebrush lizard movement, reducing access to 
habitat, mating opportunities, and prey, and decreasing population size 
and the likelihood of population persistence. Both field experiments 
and radio tracking studies have revealed that dunes sagebrush lizards 
will avoid crossing caliche roads (Hibbitts et al. 2017, p. 197; Young 
et al. 2018, p. 910).
    Frac sand mining--Frac sand is a naturally occurring sand used as a 
proppant (i.e., a solid material used to keep fissures beneath the 
Earth's surface open) during hydraulic fracturing of oil and gas wells 
to maximize production of unconventional reservoirs (Mossa and James 
2013, pp. 76-79; Benson and Wilson 2015, pp. 1-50; Engel et al. 2018, 
pp. 1-13; Forstner 2018, pp. 1-19; Mace 2019, entire). Sand mining 
involves the use of heavy equipment and open-pit methods to 
mechanically remove vegetation and fine sediments from near-surface 
deposits of sand (e.g., sand dunes and sand sheets) (Breckle et al. 
2008, pp. 453-454; Benson and Wilson 2015, pp. 7-8, 49; Mossa and James 
2013, pp. 76-80; Forstner et al. 2018, pp. 2-17; Mace 2019, pp. 42-61). 
Construction of sand mine facilities, which include processing plants 
and related infrastructure, in dunes sagebrush lizard habitat removes 
shinnery oak and degrades and compacts shinnery oak dunelands. The sand 
mine facilities replace the shinnery oak dunelands with paved surfaces, 
buildings, open pit mines, spoil areas, processing pools, and other 
structures (Boyd and Bidwell 2002, p. 332; Ryberg et al. 2015, pp. 888-
890, 895-896; Forstner et al. 2018, pp. 1-5). Sand mining operations in 
dunes sagebrush lizard habitat can remove entire shinnery oak duneland 
landforms, or portions thereof; alter dune topography; and produce 
large, deep, unnatural pits in the land surface (Breckle et al. 2008, 
pp. 453-454; Mossa and James 2013, pp. 77-79, 85; Engel et al. 2018, 
pp. 1-13; Pye 2009, pp. 361-362; Forstner et al. 2018, pp. 2-21). The 
effects of sand mining can extend beyond the footprint of the actual 
mine itself. Removal of a portion (or portions) of a sand dune promotes 
the loss and degradation of the entire landform (i.e., the remaining 
unmined segments) by undermining its stability and promoting wind 
erosion and deflation (Carrick and Kruger 2007, pp. 771-772; Breckle et 
al. 2008, pp. 442, 453-454; Mossa and James 2013, pp. 75, 88, 92; Engel 
et al. 2018, pp. 1-13; Forstner et al. 2018, pp. 3-21).
    Frac sand mining is a recent occurrence in this region: the first 
sand mine was developed in early 2017, and by the end of 2018, 17 
facilities had registered with the Texas Commission on Environmental 
Quality for operations in the region (Mace 2019, pp. 1, 42-43, 78). 
Sand mines have only been developed in the Texas portion of the dunes 
sagebrush lizard's range, specifically the Monahans Sandhills. 
Currently, most mines are in Winkler and Ward Counties; these two 
counties contain 11 and 2, respectively, of the 17 existing facilities 
(Mace 2019, pp. 43-44, 56; USFWS 2024, pp. 108-109). Sand mining is 
expected to continue in these counties given the current location and 
density of mines in the counties, the average rates of surface mining, 
and the anticipated plans and growth of the oil and gas industry in the 
area (Mace 2019, pp. 42-54; Benson and Wilson 2015, pp. 1-8, 54-57; 
Latham and Watkins 2020, pp. 12-13).
Extreme Weather and Climate Change
    The dunes sagebrush lizard occurs in a semiarid climate that 
experiences extreme heat and droughts, but the species is adapted to 
contend with such environmental variability. In the 1920s and 1930s, 
northern shinnery oak ecosystems averaged 1 to 2 years of drought every 
10 years, and southern portions of those ecosystems averaged 2 to 3 
years of drought every 10 years (Peterson and Boyd 1998, p. 14). In the 
past 20 years, moderate to exceptional drought has occurred every 1 to 
2 years, in the southern and northern shinnery oak ecosystems (U.S. 
Drought Monitor 2022, unpaginated). Climate change is likely to 
increase the frequency and severity of drought in this region since, on 
average, surface air temperatures across Texas are predicted to 
increase by 3 [deg]C (5.4 [deg]F) by 2099 (Jiang and Yang 2012, p. 
238). In the southwest United States, temperature increases are 
predicted to be concentrated in the summer months, and in Texas, the 
number of days exceeding 35 [deg]C (95 [deg]F) may double by 2050 
(Kinniburgh et al. 2015, p. 8). According to climate change 
predictions, west Texas will experience greater variability in seasonal 
precipitation patterns, with the greatest net loss experienced in 
winter (Jiang and Yang 2012, p. 238).
    The impacts of extreme heat and drought on individual dunes 
sagebrush lizards is relatively unknown. Drought could impact food 
resources, which would then impact lizard productivity. The marbled 
whiptail (Aspidoscelis marmoratus), another lizard species found in the 
Monahans Sandhills, showed a decline in density during a period of 
drought (Fitzgerald et al. 2011, p. 30). If drought restricts available 
food resources, it could negatively affect the dunes sagebrush lizard's 
recruitment and survival.
    The relationship between these weather events and dunes sagebrush 
lizard habitat (i.e., shinnery oak) is more established. While shinnery 
oak is highly adapted for arid conditions, prolonged periods of drought 
inhibit growth and reproduction. For example, during drought, shinnery 
oak can lose its leaves or not even leaf-out (Peterson and Boyd 1998, 
p. 9). Additionally, recent droughts have delayed typical spring leaf-
out for shinnery oak, with leaf-out instead occurring with the seasonal 
summer monsoons (Johnson et al. 2016, p. 78). The timing of the spring 
leaf-out is important, as it provides shelter for adult dunes sagebrush 
lizards as they become active in the spring and food resources for 
invertebrates that are consumed by dunes sagebrush lizards. 
Furthermore, continued alterations to the landscape are likely to 
exacerbate the impacts of climate change on the dunes sagebrush lizard. 
For example, habitat fragmentation can already increase air 
temperatures and solar radiation, along with reducing the availability 
of microhabitats that can serve as a thermal refugia (Jacobson 2016, 
pp. 3-4, 10). Habitat fragmentation also restricts natural patterns of 
dispersal and colonization that could buffer against extreme weather 
impacts.

Conservation Efforts and Regulatory Mechanisms

    Because we are considering the best available information and 
because the discussion above primarily addresses the viability of the 
dunes sagebrush lizard in relation to the threats and factors affecting 
its viability, here we will discuss regulatory mechanisms and 
conservation actions that potentially have influenced or will influence 
the current and future viability of the species.
New Mexico
    The dunes sagebrush lizard is listed as an endangered species 
within the State of New Mexico by the New Mexico Department of Game and 
Fish, which makes it ``unlawful for any person to take, possess, 
transport, export, process, sell or offer for sale or ship'' the 
species (17-2-41 C. New Mexico Statutes Annotated 1978). It is 
considered a sensitive species by the BLM, which means the agency will 
work cooperatively with other Federal and State agencies and 
nongovernmental organizations to proactively conserve these species and 
ensure that activities on public lands do not contribute to the need 
for their listing under the

[[Page 43763]]

Endangered Species Act. In 2008, the BLM developed a Special Status 
Species Resource Management Plan Amendment (hereafter Amendment) (BLM 
2008, entire) to guide management of lands within dunes sagebrush 
lizard habitat in New Mexico. The plan addresses concerns and threats 
of oil and gas development and shinnery oak removal due to herbicide 
spraying by outlining protective measures and basic guidelines for 
development in the vicinity of dunes sagebrush lizard habitat. The plan 
provides for specific conservation requirements, lease stipulations, 
and the removal of 42,934 ha (106,091 ac) of dunes sagebrush lizard 
habitat from future oil and gas leasing (BLM 2008, entire). Since the 
Amendment was approved in 2008, the Bureau of Land Management has 
closed approximately 120,000 ha (300,000 ac) to future oil and gas 
leasing and closed approximately 345,000 ha (850,000 ac) to wind and 
solar development (BLM 2008, p. 3). From 2008 to 2020, the BLM has 
reclaimed 1,416 ha (3,500 ac) of abandoned well pads and associated 
roads. Additionally, the BLM continues to implement control efforts for 
invasive mesquite.
    Following approval of the Amendment, a team including the Service, 
BLM, Center of Excellence, and participating cooperators drafted both a 
CCA and CCAA (Center of Excellence (CEHMM) 2008, entire) for the dunes 
sagebrush lizard and lesser prairie-chicken (Tympanuchus 
pallidicinctus) in New Mexico. The CCA addresses the conservation needs 
of the dunes sagebrush lizard and lesser prairie-chicken on BLM lands 
in New Mexico by attempting habitat restoration and enhancement 
activities, conducting activities like removing unused well pads, and 
minimizing habitat degradation. The CCAA was developed to facilitate 
conservation actions for the two species on private and State lands.
    The CCA and CCAA are umbrella agreements under which individual 
entities participate. In New Mexico, an estimated 35 percent of the 
occupied range of the dunes sagebrush lizard is on privately owned and 
State-managed lands. There are no local or State regulatory mechanisms 
pertaining to the conservation of dunes sagebrush lizard habitat on 
private or State lands in New Mexico, nor is there New Mexico State 
Land Office policy in place to protect sensitive species. The only 
mechanism for the preservation of dunes sagebrush lizard habitat on 
lands administered by the New Mexico State Land Office is by having 
those lands enrolled in the CCAA.
    Since the CCA and CCAA were finalized in December 2008, 40 oil and 
gas companies and 37 ranchers have enrolled a total of 218,144 ha 
(539,046 ac) of shinnery oak duneland habitat and 258,018 ha (637,577 
ac) of the surrounding supportive matrix habitat. The total area of 
habitat enrolled by industry, private landowners, New Mexico Department 
of Game and Fish, and New Mexico State Land Office currently covers 
around 85 percent of the range of the dunes sagebrush lizard within New 
Mexico. By enrolling lands in these agreements, participants agree to 
avoid disturbing shinnery oak duneland habitat, forgo spraying of 
herbicides on shinnery oak, and relocate projects to avoid dunes 
sagebrush lizard habitat (CEHMM 2016, pp. 1-2). We received updated 
enrollment numbers for 2023, however, these updated numbers were not 
broken out by habitat type and ownership type. Updated enrollment 
numbers include a total of 104 ranches (33 new since 2022), 13 parcel-
by-parcel (1 new since 2022), 50 all-activities, and 31 linear 
development enrollees. Areas enrolled as of 2023 includes 946,810 ha 
(2,339,619 ac) for ranching and 1,314,722 ha (3,314,722 ac) for 
industry, resulting in a total of 2,288,231 ha (5,654,341 ac). It is 
important to note that these enrollment numbers are for the joint 
lesser prairie chicken-dunes sagebrush lizard programs, so enrollee 
numbers and acreage do not necessarily reflect dunes sagebrush lizard-
specific coverage.
Texas
    In Texas, the dunes sagebrush lizard is listed as a ``species of 
greatest conservation need'' by the Texas Parks and Wildlife 
Department. This designation does not afford the species any legal 
protection, but it guides nongame conservation efforts, including 
regional efforts to conserve these species. Additionally, there are no 
local or other State mechanisms regulating impacts or pertaining to the 
conservation of dunes sagebrush lizard habitat on private lands. Nearly 
all dunes sagebrush lizard habitat in Texas is privately owned. 
Monahans State Park is the only public land on which the dunes 
sagebrush lizard is known to exist in Texas.
    Texas Conservation Plan--In 2011, the Texas Comptroller of Public 
Accounts (Comptroller) led a group of stakeholders to develop the TCP 
for the dunes sagebrush lizard, which finalized a CCAA in 2012. The TCP 
authorizes impacts to dunes sagebrush lizard habitat (i.e., incidental 
take of lizards) resulting from oil and gas development, agriculture, 
and ranching activities (i.e., covered activities) and established a 
conservation program focused on avoiding these activities in dunes 
sagebrush lizard habitat. If avoidance of habitat cannot be 
accomplished, participants enrolled in the TCP must implement 
conservation measures that minimize and mitigate for habitat impacts 
via restoration or enhancement of dunes sagebrush lizard habitat (Texas 
Comptroller of Public Accounts (CPA) 2012, entire).
    Approximately 1,847 ha (4,564 ac) of dunes sagebrush lizard habitat 
was negatively impacted by the TCP between 2012 and 2018. However, 
after 6 years of implementation, the Comptroller sought to revise the 
TCP to address issues preventing the plan from achieving its 
conservation and protection goals (Gulley 2017a, entire; Gulley 2017b, 
entire; Koch 2018, entire; Hegar 2018a, entire; Hegar 2018b, entire; 
Gulley 2018a, entire; Gulley 2018b, entire; Hegar 2018d, entire; CPA 
2019, entire). In 2018, the Comptroller submitted these proposed 
revisions to the Service in the form of a new CCAA to replace the 
existing TCP and subsequently ended their administration of the permit 
(Ashley 2018a, entire; Ashley 2018b, entire; Hegar 2018a, entire; Hegar 
2018b, entire; Hegar 2018c, entire). The Service did not approve the 
proposed new CCAA submitted by the Comptroller. Rather, in 2020, the 
Service revised and transferred the permit for the TCP to a new permit 
holder, the American Conservation Foundation (Falen 2019, entire; 
Fleming 2020a, entire; Fleming 2020b, entire). Of the 29 participants 
enrolled in the 2012 TCP, only 8 expressed interest in maintaining 
enrollment under the revised 2020 TCP. Subsequently, the area enrolled 
in the TCP decreased significantly, from 120,193 ha (297,004 ac) in 
2012, to 28,489 ha (70,397 ac) in 2020 (an approximately 76 percent 
decrease). Per the TCP 2023 annual report, as of December 31, 2023, a 
total of seven participants are enrolled in the TCP. The total acreage 
enrolled by these seven participants is 135,296 ha (334,323 ac). Of 
this total acreage, 20,565 ha (50,816 ac) are located in dunes 
sagebrush lizard habitat, according to the range maps used by the TCP 
(Fitzgerald et al. 2011, p. 10) An additional 6,132 ha (15,153 ac) are 
located in the 200-meter buffer of dunes sagebrush lizard habitat. 
However, acreage can be enrolled separately as surface and subsurface, 
and the same acreage can be enrolled by different enrollees and follow 
different conservation measures for different activities in the same 
location.

[[Page 43764]]

Additionally, while conservation measures are a requirement of 
participation in the certificates of inclusion in Texas, we are unsure 
of the extent of conservation measure implementation and the locations 
of all areas where conservation is occurring because specific data on 
enrolled locations are not available. The Service remains in 
discussions with the American Conservation Foundation and remaining 
participants to consider and implement changes to the TCP.
    2020 CCAA--In 2020, a separate applicant, led primarily by mining 
companies, applied for a separate CCAA that covers oil and gas 
activities, sand mining, linear infrastructure (such as utilities and 
pipelines), wind and solar energy development, local governments, and 
agriculture and ranching (Canyon Environmental, LLC 2020, entire). The 
Service approved this CCAA in 2021. Using habitat as a surrogate for 
quantifying the amount of incidental take, the total amount of take 
authorized during the permit term (23 years) is 14,140 ha (34,940 ac). 
Because it was not possible to determine how much dunes sagebrush 
lizard habitat would be disturbed or destroyed by the 2020 CCAA's 
participants (versus nonparticipants), this estimate, which was 
formulated based on a variety of factors (Canyon Environmental, LLC 
2020, pp. 45-49), is the expected total impacts to habitat in Texas 
over the permit term, including from the TCP.
    The 2020 CCAA describes the goal and objectives of the CCAA 
conservation strategy. The one overarching goal is to contribute, 
directly or indirectly, to the conservation of the dunes sagebrush 
lizard by reducing or eliminating threats on enrolled properties. This 
goal is then followed by a list of objectives that emphasize, in part, 
conserving dunes sagebrush lizard habitat, restoring and reclaiming 
impacted areas, reducing habitat fragmentation, and addressing surface 
impacts from the development of stratified mineral estates. Each 
industry has various avoidance and minimization measures that they are 
encouraged to implement. Each industry also has various fees based on 
the dunes sagebrush lizard habitat type to be impacted. These fees are 
expected to support administration of the 2020 CCAA, as well as 
conservation actions and research.
    The permit was issued on January 20, 2021, and the permit 
administrator is currently coordinating implementation with the 
Service. As of February 29, 2024, we received seven certificates of 
inclusion for the 2020 CCAA from the Permit holder, which enrolled a 
total of 99,616 ha (403,232 ac). Of these 99,616 ha (403,232 ac), only 
8,417 ha (34,061 ac) are reported to be in dunes sagebrush lizard 
habitat as mapped by Hardy et al (2018, entire). While each certificate 
of inclusion has a requirement for implementing avoidance and 
conservation measures, no specific actions have been reported to date; 
thus, we remain unaware of the specific conservation measures being 
implemented by each participant per their certificate of inclusion.

Current Condition

    We assessed the current condition of the dunes sagebrush lizard 
using geospatial analysis to estimate the current quantity and quality 
of available habitat (USFWS 2024, pp. 86-109). Our approach was rooted 
in the findings by numerous studies that the dunes sagebrush lizard 
experiences reductions in abundance and density as habitat is lost or 
becomes disturbed (Leavitt and Fitzgerald 2013, p. 11; Ryberg et al. 
2013, p. 4; Walkup et al. 2017, p. 12; Young et al. 2018, p. 910). The 
results of our geospatial analysis indicate that across our analysis 
area there is approximately 210,506 hectares (ha) (520,161 acres (ac)) 
classified as shinnery oak duneland, which is the primary habitat type 
required by the species for breeding, feeding, and sheltering. Of this 
shinnery oak duneland habitat, about 50 percent is minimally disturbed 
by human development, whereas 35 percent has been degraded to the point 
that it is likely unable to support populations of the dunes sagebrush 
lizard. The remaining 15 percent has moderate levels of disturbance, 
where we project there have been reductions in dunes sagebrush lizard 
viability.
    Since the dunes sagebrush lizard exhibits divisions between 
population areas and restricted gene flow across its range (Chan et al. 
2020, entire), we identified 11 analysis units to assess resiliency. 
These units correspond to sections of the overall range of the dunes 
sagebrush lizard that are demographically and genetically independent 
from each other and logical breakpoints for analysis based on habitat 
distribution and potential barriers to movement (i.e., highways). 
Levels of habitat degradation and disturbance were not equal across the 
11 analysis units; therefore, we developed a system to rank the 
viability of dunes sagebrush lizard populations within these units 
based on habitat metrics. Each analysis unit was classified as being in 
high, moderate, or low condition. Those in high condition possess 
enough undisturbed habitat that we project they will support robust, 
interconnected populations of the dunes sagebrush lizard. Moderate 
condition defines units that have experienced habitat loss and 
disturbance to such an extent that abundance and the potential for 
natural patterns of dispersal and colonization are expected to be 
reduced. Units in low condition have experienced such extensive habitat 
loss that they are expected to experience substantial population losses 
(USFWS 2024, pp. 92-94).
    Of the 11 analysis units, we found 2 that are high condition, 5 
that are moderate condition, and 4 that are low condition (see table 1, 
below). All analysis units in the Northern Mescalero Sandhills are in 
either high (two units) or moderate (three units) condition. In 
contrast, both analysis units in the Southern Mescalero Sandhills are 
in low condition. Two analysis units in the Monahans Sandhills are in 
low condition and two in moderate condition. Although two analysis 
units are in high condition according to our analysis (North Mescalero 
2 and 4), they are physically disconnected from any other sand dune 
formations and contain the least amount of shinnery oak duneland 
habitat. Thus, despite being relatively undisturbed, they are isolated 
and small, making them at increasing risk of extirpation.

     Table 1--Current Habitat Condition for the 11 Analysis Units Defined for the Dunes Sagebrush Lizard SSA
----------------------------------------------------------------------------------------------------------------
                                                Proportion of    Proportion
                                                  total area     of duneland   Proportion
     Representation unit       Analysis unit      minimally       minimally    of duneland    Current condition
                                                  disturbed       disturbed     degraded
----------------------------------------------------------------------------------------------------------------
N Mescalero.................  N Mescalero 1..             0.74          0.80          0.14  Moderate.
                              N Mescalero 2..             0.76          0.93          0.01  High.

[[Page 43765]]

 
                              N Mescalero 3..             0.62          0.65          0.31  Moderate.
                              N Mescalero 4..             0.61          0.58          0.03  High.
                              N Mescalero 5..             0.70          0.71          0.28  Moderate.
S Mescalero.................  S Mescalero 1..             0.17          0.17          0.51  Low.
                              S Mescalero 2..             0.40          0.28          0.59  Low.
Monahans....................  Monahans 1.....             0.36          0.40          0.56  Low.
                              Monahans 2.....             0.62          0.73          0.13  Moderate.
                              Monahans 3.....             0.66          0.65          0.16  Moderate.
                              Monahans 4.....             0.26          0.37          0.51  Low.
----------------------------------------------------------------------------------------------------------------

    Using the total size of each analysis unit, we projected the 
proportion of the total dunes sagebrush lizard range that falls into 
these different condition categories. Only 6 percent of the species' 
range is considered to be in high condition, 47 percent is considered 
to be in moderate condition, and 47 percent is considered to be in low 
condition.
    For redundancy, all 11 analysis units have some habitat classified 
as minimally disturbed, meaning they are capable of support dunes 
sagebrush lizards. Given the size of the range, it is unlikely that a 
single catastrophe would eliminate the entire species. The resiliency 
scores of some analysis units, however, suggests that they are 
potentially vulnerable to extirpation. Loss of the low condition 
analysis units would reduce the total number to 7, with those remaining 
concentrated in North Mescalero Sandhills. It is a vulnerability to the 
species that the analysis units in the strongest condition are 
clustered geographically: North Mescalero Sandhills also includes some 
of the smallest units. An extreme event centered in that area could 
reduce abundance in the last strongholds for the species, leaving its 
viability tied to low condition areas in Southern Mescalero and 
Monahans Sandhills.
    For representation, all analysis units and representation units 
contain dunes sagebrush lizards, meaning that the genetic lineages 
identified by Chan et al. (2020, entire) are still represented. The 
mere existence of these lineages on the landscape suggests there is 
still raw genetic variation present within the species that can support 
adaptive capacity. However, some representation units are composed of 
populations with low resiliency. Both analysis units in the Southern 
Mescalero Sandhills are in low condition. The low viability of these 
units suggests that an entire genetic lineage is currently at high risk 
for extirpation. Two of the four analysis units in the Monahans 
Sandhills are also in low condition. Importantly, these two units cover 
the northern and southern extremes of the dunes sagebrush lizard range 
in the Monahans Sandhills. Loss of these analysis units could result in 
the loss of genetic variation associated with extremes in the 
environmental variation experienced by the species in Texas, reducing 
adaptive capacity. In fact, a general pattern is that analysis units 
are in better condition in the northern part of the species range 
(Northern Mescalero Sandhills). Southern populations experience higher 
temperatures and drier conditions and may have higher capacity to 
withstanding climate change (Leavitt 2019, pp. 7-8). However, their 
poor condition limits their potential to contribute to long-term 
adaptation of the species.
    For a more thorough discussion of the current status of the dunes 
sagebrush lizard, see the SSA report (USFWS 2024, pp. 86-109).

Future Scenarios

    As part of the SSA, we also developed several future-condition 
scenarios to forecast the condition of the species under different 
projections of threats. We used our existing assessment of current 
habitat as the starting point for our future scenarios. We then 
incorporated projections of factors likely to impact the viability of 
the dunes sagebrush lizard into the future. Although there are several 
factors that may influence the condition of the species in the future, 
we focused on oil and gas development and frac sand mining as the 
threats most likely to impact the dunes sagebrush lizard's habitat and 
long-term viability. Because we determined that the current condition 
of the dunes sagebrush lizard is consistent with an endangered species 
(see Determination of Dunes Sagebrush Lizard's Status, below), we are 
not presenting the results of the future scenarios in this final rule. 
Please refer to the SSA report (USFWS 2024, pp. 110-129) for the full 
analysis of future scenarios.

Cumulative Effects

    We note that by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
these factors, but to what degree they collectively influence risk to 
the entire species, our assessment integrates the cumulative effects of 
the factors and replaces a standalone cumulative effects analysis.

Determination of Dunes Sagebrush Lizard's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational

[[Page 43766]]

purposes; (C) disease or predation; (D) the inadequacy of existing 
regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.

Status Throughout All of Its Range

    Among the threats we evaluated in our SSA report (USFWS 2024, 
entire), the most consequential to the long-term persistence of the 
dunes sagebrush lizard are habitat loss, fragmentation, and degradation 
due to the industrial extraction of oil, gas, and frac sand (Factor A) 
and climate change (Factor E). Because these activities have so 
thoroughly degraded habitat across large portions (47 percent) of 
shinnery oak duneland habitat, much of that habitat is no longer 
capable of supporting populations of the dunes sagebrush lizard. Even 
though these degraded areas may continue to support the dunes sagebrush 
lizard in small, isolated patches, the species in these areas has 
limited recruitment, has higher mortality, and is disconnected from 
other populations. In highly degraded areas, remnant populations may 
persist over the next several decades; however, as they become 
extirpated, there is little potential for recolonization due to habitat 
fragmentation. Therefore, the dunes sagebrush lizard is functionally 
extinct across 47 percent of its range. This includes the entire 
Southern Mescalero Sandhills portion of the range, which reduces the 
species' adaptive capacity and, therefore, reduces its representation.
    Based on our habitat assessment, only two analysis units (6 
percent) are currently in high enough condition to support robust, 
interconnected populations. Even this, however, may be an overestimate 
of long-term resiliency, as these two analysis units are at the extreme 
northern portion of the species' range in New Mexico and are physically 
disconnected from other dune fields and each other. Additionally, 
although minimally disturbed, these two units contain the least amount 
of shinnery oak duneland habitat; thus, the populations within these 
units are small, isolated, and vulnerable to stochastic and 
catastrophic events.
    Another large component of the species' range (47 percent) is 
currently in moderate condition, meaning it contains sufficient amounts 
of minimally disturbed habitat to support populations of the dunes 
sagebrush lizard at this time. However, within these areas, 
interconnectedness is reduced, increasing the potential for local 
extirpations. Where the habitat is in moderate condition, dunes 
sagebrush lizard populations are not secure, as the populations are 
already highly fragmented and are expected to continue to be impacted 
by human activity. Even if there were no further expansion of the oil 
and gas or sand mining industry, the existing footprint of these 
operations will continue to negatively affect the dunes sagebrush 
lizard into the future. For example, the existing road network will 
continue to restrict movement and facilitate direct mortality of dunes 
sagebrush lizards from traffic, and industrial development will 
continue to have edge effects on surrounding habitat and weaken the 
structure of the sand dune formations. The pervasiveness of industrial 
development makes dunes sagebrush lizards vulnerable to other threats 
that were not explicitly quantified in our assessment, such as extreme 
drought, groundwater extraction, oil spills, and mesquite encroachment. 
Because shinnery-oak duneland habitat cannot currently be restored 
(Ryberg et al. 2015, p. 896; Johnson et al. 2016, p. 34), and limited 
existing infrastructure will likely be removed from this landscape, 
there is little possibility for conditions in these moderate condition 
units to improve (USFWS 2024, pp. 105-107). Therefore, we conclude that 
habitat in these units will continue to deteriorate due to 
fragmentation, which will continue to isolate dunes sagebrush lizard 
populations and result in a progressive decline in population 
abundance.
    Although it still occupies much of its range, many populations are 
small, isolated, and vulnerable to extirpation, which will gradually 
erode redundancy and increase the risks posed by catastrophic events, 
such as drought. Adaptive capacity (i.e., representation) has also been 
reduced as well. An entire genetically distinct lineage covering an 
ecologically separate portion of the range (Southern Mescalero) is 
functionally extinct. A second lineage occupying a geographically 
disjunct portion of the range (Monahans) is on a similar trajectory. 
Loss of ecological and genetic representation across the range will 
reduce adaptive capacity and the ability of the species to respond to 
environmental change.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we conclude that the risk factors acting on the dunes 
sagebrush lizard and its habitat, either singly or in combination, are 
of sufficient imminence, intensity, and magnitude to indicate that the 
species is in danger of extinction throughout all of its range. Due to 
past and current stressors, the species has experienced reductions in 
resiliency across its range, making it vulnerable to stochastic events 
We do not find that the dunes sagebrush lizard meets the definition of 
a threatened species because the reductions in resiliency, redundancy, 
and representation to this point have elevated the risk of the 
extinction for the species. Thus, after assessing the best available 
information, we determine that dunes sagebrush lizard is in danger of 
extinction throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. We have determined that the dunes sagebrush lizard is in 
danger of extinction throughout all of its range and accordingly did 
not undertake an analysis of any significant portions of its range. 
Because the dunes sagebrush lizard warrants listing as endangered 
throughout all of its range, our determination does not conflict with 
the decision in Center for Biological Diversity v. Everson, 435 F. 
Supp. 3d 69 (D.D.C. 2020), which vacated the provision of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (79 FR 37578, July 1, 2014) 
providing that if the Service determines that a species is threatened 
throughout all of its range, the Service will not analyze whether the 
species is endangered in a significant portion of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the dunes sagebrush lizard meets the Act's 
definition of an endangered species. Therefore, we are listing the 
dunes sagebrush lizard as an endangered species in accordance with 
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act

[[Page 43767]]

encourages cooperation with the States and other countries and calls 
for recovery actions to be carried out for listed species. The 
protection required by Federal agencies, including the Service, and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened and the ecosystems upon which they depend. The ultimate 
goal of such conservation efforts is the recovery of these listed 
species, so that they no longer need the protective measures of the 
Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    When this rule is effective (see DATES, above), funding for dunes 
sagebrush lizard recovery actions will be available from a variety of 
sources, including Federal budgets, State programs, and cost-share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. In addition, pursuant to section 6 of 
the Act, the States of New Mexico and Texas will be eligible for 
Federal funds to implement management actions that promote the 
protection or recovery of the dunes sagebrush lizard. Information on 
our grant programs that are available to aid species recovery can be 
found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the dunes sagebrush lizard. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled, ``Interagency Cooperation'' and 
mandates all Federal action agencies to use their existing authorities 
to further the conservation purposes of the Act and to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify critical habitat. Regulations 
implementing section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    Examples of discretionary actions for the dunes sagebrush lizard 
that may be subject to consultation procedures under section 7 are land 
management or other landscape-altering activities on Federal lands or 
mineral rights administered by the BLM as well as actions on State, 
Tribal, local, or private lands that require a Federal permit (such as 
a permit from the U.S. Army Corps of Engineers under section 404 of the 
Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service 
under section 10 of the Act) or that involve some other Federal action 
(such as funding from the Federal Highway Administration, Federal 
Aviation Administration, or the Federal Emergency Management Agency). 
Federal actions not affecting listed species or critical habitat--and 
actions on State, Tribal, local, or private lands that are not 
federally funded, authorized, or carried out by a Federal agency--do 
not require section 7 consultation. Federal agencies should coordinate 
with the local Service Field Office (see FOR FURTHER INFORMATION 
CONTACT) with any specific questions on section 7 consultation and 
conference requirements. To facilitate this process, we will ensure 
that maps and the data used to generate them in the SSA report will be 
made available through requests to the New Mexico Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT). We will also publish up-
to-date range maps on our website (https://www.fws.gov/species/dunes-sagebrush-lizard-sceloporus-arenicolus) to facilitate the project 
planning process.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit or to cause to be committed any of the following: (1) import 
endangered wildlife into, or export endangered wildlife from, the 
United States; (2) take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct) endangered wildlife within the United States or on 
the high seas; (3) possess, sell, deliver, carry, transport, or ship, 
by any means whatsoever, any endangered wildlife that has been taken 
illegally; (4) deliver, receive, carry, transport, or ship in

[[Page 43768]]

interstate or foreign commerce, in the course of commercial activity, 
any endangered wildlife; or (5) sell or offer for sale in interstate or 
foreign commerce any endangered wildlife. Certain exceptions to these 
prohibitions apply to employees or agents of the Service, the National 
Marine Fisheries Service, other Federal land management agencies, and 
State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits for endangered wildlife are codified at 50 CFR 17.22. 
With regard to endangered wildlife, a permit may be issued: for 
scientific purposes, for enhancing the propagation or survival of the 
species, or for take incidental to otherwise lawful activities. The 
statute also contains certain exemptions from the prohibitions, which 
are found in sections 9 and 10 of the Act.
    It is the policy of the Service, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify, to the extent 
known at the time a species is listed, specific activities that will 
not be considered likely to result in violation of section 9 of the 
Act. To the extent possible, activities that will be considered likely 
to result in violation will also be identified in as specific a manner 
as possible. The intent of this policy is to increase public awareness 
of the effect of a listing on proposed and ongoing activities within 
the range of the species.
    At this time, we are unable to identify specific activities that 
will not be considered likely to result in a violation of section 9 of 
the Act beyond what is already clear from the Act's descriptions of 
prohibitions or already excepted through our regulations at 50 CFR 
17.21 (e.g., any person may take endangered wildlife in defense of his 
own life or the lives of others). Also, as discussed above, certain 
activities that are prohibited under section 9 may be permitted under 
section 10 of the Act.
    To the extent currently known, the following is a list of examples 
of activities that will be considered likely to result in violation of 
section 9 of the Act in addition to what is already clear from the 
descriptions of the prohibitions found at 50 CFR 17.21:
    (1) Destruction, alteration, or removal of shinnery oak duneland 
and shrubland vegetation.
    (2) Degradation, removal, or fragmentation of shinnery oak duneland 
and shrubland formations and ecosystems.
    (3) Disruption of water tables in dunes sagebrush lizard habitat.
    (4) Introduction of nonnative species that compete with or prey 
upon the dunes sagebrush lizard.
    (5) Unauthorized release of biological control agents that attack 
any life stage of the dunes sagebrush lizard or that degrade or alter 
its habitat.
    (6) Herbicide or pesticide applications in shinnery oak duneland 
and shrubland vegetation and ecosystems.
    This list is intended to be illustrative and not exhaustive; 
additional activities that will be considered likely to result in 
violation of section 9 of the Act may be identified during coordination 
with the local field office, and in some instances (e.g., with new or 
site-specific information), the Service may conclude that one or more 
activities identified here will not be considered likely to result in 
violation of section 9. Questions regarding whether specific activities 
would constitute violation of section 9 of the Act should be directed 
to the New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

II. Critical Habitat

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that we designate critical habitat at the time a 
species is determined to be an endangered or threatened species, to the 
maximum extent prudent and determinable. In our July 3, 2023, proposed 
listing rule (88 FR 42661), we determined that designation of critical 
habitat was prudent, but not determinable because specific information 
needed to analyze the impacts of designation was lacking. We are still 
in the process of assessing the information needed to analyze the 
impacts of critical habitat. We plan to publish a proposed rule to 
designate critical habitat for the dunes sagebrush lizard in the near 
future. The Act allows the Service an additional year to publish a 
critical habitat designation that is not determinable at the time of 
listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. In accordance with 
Secretaries' Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. No designated Tribal lands occur 
within the range of the dunes sagebrush lizard, and we received no 
comments from Tribes on the July 3, 2023, proposed listing rule, but 
several Tribes may have interests in this area and could be affected by 
the rule. We contacted the Mescalero Apache, Pueblo of Tesuque, Ysleta 
del Sur Pueblo, Kiowa Tribe of Oklahoma, Apache Tribe of Oklahoma, and 
Comanche Nation of Oklahoma regarding the SSA process by mail and 
invited them to provide information and comments to inform the SSA.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the U.S. 
Fish and Wildlife Service's Species Assessment Team and the New Mexico 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.


0
2. Amend Sec.  17.11, in paragraph (h), by adding an entry for 
``Lizard, dunes sagebrush'' to the List of Endangered and Threatened 
Wildlife in alphabetical

[[Page 43769]]

order under REPTILES to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                                                    REPTILES
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Lizard, dunes sagebrush.........  Sceloporus          Wherever found....  E              89 FR [INSERT Federal
                                   arenicolus.                                            Register PAGE WHERE
                                                                                          THE DOCUMENT BEGINS],
                                                                                          5/20/2024.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-11025 Filed 5-17-24; 8:45 am]
BILLING CODE 4333-15-P