Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 77801 

Act, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule will not impose any 

new requirements on any entities 

because it does not impose any 

additional regulatory requirements. This 

action also does not have Tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian Tribes, on the relationship 

between the Federal government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian Tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997). 

The requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This action does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501, et seq.). EPA’s compliance 

with these statutes and Executive 

Orders for the underlying rule is 

discussed in the October 29, 2009, 

Federal Register document. 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Monitoring, 

Reporting and recordkeeping. 

Dated: December 7, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–31330 Filed 12–13–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2010–0041; MO 

92210–0–0008] 

RIN 1018–AV97 

Endangered and Threatened Wildlife 

and Plants; Endangered Status for 

Dunes Sagebrush Lizard 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, propose to list the 

dunes sagebrush lizard (Sceloporus 

arenicolus), a lizard known from 

southeastern New Mexico and adjacent 

west Texas, as endangered under the 

Endangered Species Act of 1973, as 

amended. If we finalize the rule as 

proposed, it would extend the Act’s 

protections to this species. We have 

determined that critical habitat for the 

dunes sagebrush lizard is prudent but 

not determinable at this time. 

DATES: We will consider comments 

received or postmarked on or before 

February 14, 2011. We must receive 

requests for public hearings, in writing, 

at the address shown in the FOR FURTHER

INFORMATION CONTACT section by January 

28, 2011. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS–R2–ES–2010–0041 and then 

follow the instructions for submitting 

comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R2– 

ES–2010–0041; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more details). 

FOR FURTHER INFORMATION CONTACT: 

Wally ‘‘J’’ Murphy, Field Supervisor, 

New Mexico Ecological Services Field 

Office, 2105 Osuna, NE., Albuquerque, 

NM 87113; by telephone 505–761–4718 

or by facsimile 505–346–2542. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

governmental agencies, Native 

American Tribes, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) The historical and current status 

and distribution of the dunes sagebrush 

lizard, its biology and ecology, and 

ongoing conservation measures for the 

species and its habitat. 

(2) Information relevant to the factors 

that are the basis for making a listing 

determination for a species under 

section 4(a) of the Endangered Species 

Act of 1973, as amended (Act) (16 

U.S.C. 1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of the species’ 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 and 

threats to the species or its habitat. 

(3) Which areas would be appropriate 

as critical habitat for the species and 

why they should be proposed for 

designation as critical habitat. 

(4) The reasons why areas should or 

should not be designated as critical 

habitat as provided by section 4 of the 

Act of 1973, including whether the 

benefits of designation would outweigh 

threats to the species that designation 

could cause, such that the designation 

of critical habitat is or is not prudent. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or threatened 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

77802 Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 

submission—including any personal 

identifying information—will be posted 

on the Web site. If your submission is 

made via a hard copy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy comments on 

http://www.regulations.gov. Please 

include sufficient information with your 

comments to allow us to verify any 

scientific or commercial information 

you include. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the New Mexico Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Background 

Previous Federal Action 

On December 30, 1982, we published 

our notice of review classifying the sand 

dune lizard (dunes sagebrush lizard) as 

a Category 2 species (47 FR 58454). 

Category 2 status included those taxa for 

which information in the Service’s 

possession indicated that a proposed 

rule was possibly appropriate, but for 

which sufficient data on biological 

vulnerability and threats were not 

available to support a proposed rule. 

Please note that we will be referring to 

this species throughout this finding 

using the currently accepted common 

name of dunes sagebrush lizard (Crother 

et al. 2008, p. 39). 

On September 18, 1985, we published 

our notice of review re-classifying the 

dunes sagebrush lizard as a Category 3C 

species (50 FR 37958). Category 3C 

status included taxa that were 

considered more abundant or 

widespread than previously thought or 

not subject to identifiable threats. 

Species in this category were not 

included in our subsequent notice of 

reviews unless their status had changed. 

Therefore, in our notice of review on 

November 21, 1991 (56 FR 58804), the 

dunes sagebrush lizard was not listed as 

a candidate species. 

On November 15, 1994, our animal 

candidate notice of review once again 

included the dune sagebrush lizard as a 

Category 2 species (59 FR 58982), 

indicating that its conservation status 

had changed. On February 28, 1996, we 

published a Candidate Notice of Review 

(CNOR) that announced changes to the 

way we identify candidates for listing 

under the Act (61 FR 7596). In that 

document, we provided notice of our 

intent to discontinue maintaining a list 

of Category 2 species, and we dropped 

all former Category 2 species from the 

list. This was done in order to reduce 

confusion about the conservation status 

of those species, and to clarify that we 

no longer regarded them as candidate 

species. As a result, the dunes sagebrush 

lizard did not appear as a candidate in 

our 1996 (61 FR 7596; February 28, 

1996), 1997 (62 FR 49398; September 

19, 1997), or 1999 (64 FR 57534; 

October 25, 1999) notices of review. 

In our 2001 CNOR, the dunes 

sagebrush lizard was placed on our 

candidate list with listing priority 

number (LPN) of 2 (66 FR 54807; 

October 30, 2001). Service policy (48 FR 

43098, September 21, 1983) requires the 

assignment of an LPN to all candidate 

species that are warranted for listing. 

This listing priority system was 

developed to ensure that the Service has 

a rational system for allocating limited 

resources in a way that ensures that the 

species in greatest need of protection are 

the first to receive such protection. A 

smaller LPN reflects a need for greater 

protection than a larger LPN. The LPN 

is based on the magnitude and 

immediacy of threats and the species’ 

taxonomic uniqueness with a value 

range from 1 to 12. A listing priority 

number of 2 for the dunes sagebrush 

lizard means that the magnitude and the 

immediacy of the threats to the species 

are high. Since 2001, the species has 

remained on our candidate list with an 

LPN of 2. 

On June 6, 2002, the Service received 

a petition from the Center for Biological 

Diversity to list the dunes sagebrush 

lizard. On June 21, 2004, the United 

States District court for the District of 

Oregon (Center for Biological Diversity 

v. Norton, Civ. No. 03–1111–AA) found 

that our resubmitted petition findings 

for the southern Idaho ground squirrel, 

the dunes sagebrush lizard, and the 

Tahoe yellow cress that we published as 

part of the CNOR on May 4, 2004 (69 FR 

24876), were not sufficient. The court 

indicated we did not specify what 

listing action is proposed for the higher 

priority species that precluded 

publishing a proposed rule for these 

three species, and that we did not 

adequately explain the reasons why 

actions for the identified species are 

deemed higher in priority, or why such 

actions result in the preclusion of listing 

actions for the southern Idaho ground 

squirrel, sand dune lizard, or Tahoe 

yellow cress. The court ordered that we 

publish updated findings for these 

species within 180 days of the order. 

On December 27, 2004, the Service 

published its 12-month finding, which 

determined that listing was warranted, 

but precluded by higher priorities (69 

FR 77167). In that finding, the species 

remains on the candidate list with a 

LPN of 2. 

Species Information 

The dunes sagebrush lizard is a small, 

light brown phrynosomatid lizard 

(family Phrynosomatidae, genus 

Sceloporus) with a maximum snout-tovent length of 70 millimeters (mm) (2.8 

inches (in)) for females and 65 mm (2.6 

in) for males (Degenhardt et al. 1996, p. 

160). Sabath (1960, p. 22) first described 

the occurrence of light-colored 

sagebrush lizards in southeastern New 

Mexico and western Texas. Kirkland L. 

Jones collected the type specimen for 

Sceloporus arenicolus on April 27, 

1968, in eastern Chaves County, New 

Mexico (Degenhardt et al. 1996, p. 159). 

Degenhardt and Jones (1972, p. 213) 

described the dunes sagebrush lizard 

(Sceloporus graciosus arenicolus) as a 

subspecies of the sagebrush lizard 

(Sceloporus graciosus). The dunes 

sagebrush lizard was elevated to a 

species in 1992 and this elevation was 

validated with molecular and 

morphological evidence in 1997 (Painter 

et al. 1999, p. 3). Much of the previous 

literature concerning Sceloporus 

arenicolus refers to it by the common 

name of sand dune lizard (e.g., 

Degenhardt et al. 1996, p. 159); 

however, the currently accepted 

common name is dunes sagebrush lizard 

(Crother et al. 2008, p. 39). 

The dunes sagebrush lizard’s nearest 

relative is the sagebrush lizard 

(Sceloporus graciosus), which is found 

in sagebrush habitat in northwestern 

New Mexico. The dunes sagebrush 

lizard and sagebrush lizard were 

isolated from each other about 15,000 

years ago during the late Pleistocene era, 

when areas that had become warm and 

dry separated suitable habitat for each 

species. It is estimated that the shinnery 

oak sand dune habitat with which the 

dunes sagebrush lizard is associated was 

also formed during this time (Bailey and 

Painter 1994, p. 22; Chan et al. 2008, p. 

8). The dunes sagebrush lizard is a 

habitat specialist that is native to a 

small area of shinnery oak dunes in 

southeastern New Mexico and adjacent 

western Texas. The shinnery oak dune 

habitat extends from the San Juan Mesa 

in northeastern Chaves County, 

Roosevelt County, through eastern Eddy 

and southern Lea Counties in New 

Mexico (Fitzgerald et al. 1997, p. 15). In 

Texas, the dunes sagebrush lizard is 

found in a narrow band of shinnery oak 

dunes in Gaines, Ward, Winkler, and 

Andrews Counties (Laurencio et al. 

2007, p. 8). 

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Dunes sagebrush lizards are active 

between March and October and are 

dormant underground during the colder 

winter months. Mating has been 

observed in April and May (Sena 1985, 

p. 17). Females produce one to two 

clutches per year, with three to five eggs 

per clutch. Hatchlings appear between 

July and September (Hill and Fitzgerald 

2007, p. 2; Sena 1985, p. 6). 

Habitat 

The dunes sagebrush lizard is 

considered to be a habitat specialist 

because it has adapted to thrive only in 

a narrow range of environmental 

conditions that exist within shinnery 

oak dunes. Its survival is directly linked 

to the quality and quantity of available 

shinnery oak dune habitat (Fitzgerald et 

al. 1997, p. 8). Shinnery oak dune 

habitat is dependent upon the existence 

of shinnery oak (Quercus havardii) in 

areas of appropriate sediment 

availability. Each shinnery oak tree 

occurs primarily under ground, with 

only one-tenth of the plant standing 0.6 

to 0.8 meters (m) (2 to 3 feet (ft)) above 

ground level. Shinnery oaks are clonal, 

meaning that each plant in a clone is 

descended asexually from a single 

ancestor. One clone can cover up to 81 

hectares (ha) (205 acres (ac)) and can 

live over 13,000 years, although 

individual stems on the surface may not 

be that old (Peterson and Boyd 1998, p. 

5). These trees, with large root and stem 

masses and an extensive underground 

system of horizontal stems, support the 

dynamic dune system that is required 

by this lizard. Shinnery oak generally 

grows in permeable sandy soils, and 

does not grow in areas with high 

amounts of calcium carbonate or 

caliche, a hardened deposit of calcium 

carbonate (Peterson and Boyd 1998, p. 

7), as discussed further below. Shinnery 

oak is very drought-tolerant and has a 

vertical root system that extends 4.6 to 

6.1 m (15 to 20 ft) below the surface 

(Peterson and Boyd 1998, p. 5). 

The unique shinnery oak dune 

ecosystem was formed in the late 

Pleistocene era when wind erosion of 

the Blackwater Draw formation and 

shinnery oak encroachment formed the 

dune system. The prevailing winds 

blow from the southwest to the 

northeast, creating the sand 

accumulation along the western edge of 

the Llano Estacado (a large mesa or 

tableland) (Muhs and Holliday 2001, p. 

82). The dune fields of western Texas 

and eastern New Mexico are being 

stabilized by the shinnery oak cover and 

would flatten without the stability 

provided by this vegetation (Muhs and 

Holliday 2001, p. 75). The dune system 

is stable in most areas except where 

land practices have caused vegetation 

removal and shifting sands (Muhs and 

Holliday 1995, p. 198). It is estimated 

that shinnery oak historically covered 

1,068,370 ha (2,640,000 ac) in New 

Mexico and 1,416,400 ha (3,500,000 ac) 

in Texas (Peterson and Boyd 1998, p. 2). 

Large portions of this shinnery oak 

habitat have been converted to cropland 

and rangeland. The shinnery oak 

community is not spreading, and its 

boundaries have not changed since early 

surveys, suggesting that new habitat is 

not being created (Peterson 1992, p. 2). 

In 1982, it was estimated that there 

was one million acres (404,686 ha) of 

shinnery oak dunes in New Mexico 

(McDaniel et al. 1982, p.12). Currently, 

the amount of shinnery oak dune habitat 

is estimated to be 600,000 acres 

(248,811 ha), a 40 percent loss since 

1982. Continued loss of shinnery oak 

dunes within the geographic range of 

the dunes sagebrush lizard since then 

has likely further decreased the amount 

of habitat available. 

The connection between dunes 

sagebrush lizards and the shinnery oak 

dune system is very specific, and the 

range of the species is closely linked to 

the distribution of shinnery oak dunes 

(Fitzgerald et al. 1997, p. 4). The 

landscape created by the shinnery oak 

dune community is a spatially dynamic 

system. Shinnery oak and sand dunes 

form large dune complexes that are 

separated by flat areas without dunes 

called shinnery oak flats. It would be 

feasible to find dunes sagebrush lizards 

in shinnery oak flats that are adjacent to 

occupied dunes. Suitable habitat is 

separated by a mosaic of habitat types 

within or near the range of dunes 

sagebrush lizard. Landforms separating 

habitat may include mesquite 

hummocks, grasslands, and tabosa flats 

that are lacking shinnery oak and 

dominated by tabosa grass (Hilaria 

mutica) and scattered mesquite 

(Prosopis glandulosa). 

Shinnery oak dune habitat is altered 

and moved by natural processes like 

wind and rain. Over time, with wind 

and rain eroding sand dunes, areas that 

contain dunes flatten out and new 

dunes form in the flats (Muhs and 

Holliday 2001, p. 75). These new dune 

complexes may then support dunes 

sagebrush lizards, so that areas that are 

currently unoccupied may become 

occupied with shifts in dunes over time 

(Fitzgerald et al. 1997, p. 27). 

As discussed above, dunes sagebrush 

lizards are not found at sites lacking 

shinnery oak dune habitat (Fitzgerald et 

al. 1997, p. 2). Shinnery oak provides 

structure to the dune system, shelter for 

thermoregulation (regulation of body 

temperature), and habitat for the dunes 

sagebrush lizard’s insect prey base 

(Bailey and Painter 1994, p. 22, 

Fitzgerald et al. 1997, p. 4). Within the 

shinnery oak dune system, dunes 

sagebrush lizards are found in deep, 

wind-hollowed depressions called 

blowouts, which are near vegetated 

edges where they escape under leaf 

litter or loose sand during the hot part 

of the day and at night (Painter et al. 

2007, p. 3). The large, steep blowouts 

provide habitat for thermoregulation, 

foraging, predator avoidance, and the 

dunes sagebrush lizard’s prey base. The 

diet of the dunes sagebrush lizard 

includes ants (Order Hymenoptera, 

Family Formicidae) and their pupae; 

small beetles (Order Coleoptera), 

including lady bird beetles (Family 

Coccinellidae) and their larvae; crickets 

(Order Orthoptera); grasshoppers (Order 

Orthoptera); and spiders (Order 

Araneae) (Degenhardt et al. 1996, p. 

160). 

Sand grain size appears to be a 

limiting factor in the distribution and 

occurrence of the dunes sagebrush 

lizard within the shinnery oak dunes. 

Laboratory and field experiments 

designed to determine sand grain 

preference demonstrated that dunes 

sagebrush lizards select sites with more 

medium sand grains and do not use 

finer sands (Fitzgerald et al. 1997, p. 6). 

Finer sand grain sizes are thought to 

limit the dunes sagebrush lizard’s 

ability to effectively breathe when they 

bury themselves to avoid predators or to 

thermoregulate. Dunes sagebrush lizards 

instead prefer sand that is suitable for 

burying but not too fine to prevent 

respiration (Fitzgerald et al. 1997, p. 

23). Sand grain size is also important in 

the establishment of dune blowouts and 

can influence the dune structure 

(Fitzgerald et al. 1997, p. 6). 

The shinnery oak flats are used for 

movement of females to find nesting 

sites and for possible dispersal of recent 

hatchlings (Hill and Fitzgerald 2007, p. 

5). Females often utilize more than one 

dune during the nesting season and 

have home range sizes of about 436 

square meters (m2) (4,693 square feet 

(ft2)). The largest recorded home range 

is 2,799.7 m2 (9,185.4 ft2), which 

includes the movement of the tracked 

female from her primary home range to 

her nesting site (Hill and Fitzgerald 

2007, p. 5). Females build nest 

chambers and lay eggs in the moist soil 

below the surface. Nests have been 

observed on west-facing, open sand 

slopes with little to no vegetation, 

approximately 18 centimeters (7.1 in) 

below the sand surface (Hill and 

Fitzgerald 2007, p. 5). 

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Distribution 

The dunes sagebrush lizard is limited 

to a narrow, isolated band of shinnery 

oak dunes between elevations of 780 

and 1,400 m (2,600 and 4,600 ft) in 

southeastern New Mexico and adjacent 

western Texas. Populations are 

separated by vast areas of naturally 

unsuitable and unoccupied habitat 

(Painter et al. 1999, p. 1). 

New Mexico 

The known geographic range of the 

dunes sagebrush lizard in New Mexico 

includes portions of Chaves, Roosevelt, 

Lea, and Eddy Counties (Fitzgerald et al. 

1997, p. 23). At its widest, the dunes 

sagebrush lizard’s range is 2,693 

hectares (6,654 ac) and in some areas is 

less than 233 hectares (576 ac) wide 

(Fitzgerald et al. 1997, p. 2). 

The distribution of the dunes 

sagebrush lizard in New Mexico was not 

formally described until 1997, using the 

results of 169 standardized surveys 

conducted at 157 sites. Of the 157 sites 

surveyed, 72 sites were determined to 

be occupied by dunes sagebrush lizards. 

Thirty of these sites are in Chaves 

County, 8 in Eddy County, 4 in 

Roosevelt County, and 30 in Lea County 

(Fitzgerald et al. 1997, Appendix 1). 

During 2008, 54 of the 72 positive sites 

that were surveyed during the 1997 

study were re-surveyed. Dunes 

sagebrush lizards were absent from 11 of 

the 54 sites (20 percent) in which they 

were recorded during the 1997 study 

(Painter 2008a, p. 1). Not all of the 72 

positive sites surveyed during the 1997 

study were re-surveyed in 2008 due to 

poor weather conditions or access 

issues. Additional surveys were 

conducted during 2010 to investigate 

the status of the population of dunes 

sagebrush lizards at the remaining sites. 

The total number of historic sites that 

were surveyed in 1997 was 72, and 17 

of those (24 percent) no longer have 

lizards. Some of these sites have been 

sprayed with tebuthiuron (a herbicide 

used to remove shinnery oak), and some 

were in areas where the habitat was 

removed (Painter 2010, p. 1). 

In New Mexico, there are three 

genetically and geographically distinct 

populations of dunes sagebrush lizards: 

the northern population (near Kenna, 

New Mexico), the central population (at 

the Caprock Wildlife Area, north of US 

Highway 380), and the southern 

population (near Loco Hills and Hobbs, 

New Mexico). These populations are 

separated by geologic and ecologic 

landscape barriers, such as the caliche 

caprock of the Llano Estacado plateau, 

mesquite hummock landscapes, 

highways, roads, and oil and gas pads, 

that form areas of unsuitable vegetation, 

and dune structure (Chan et al. 2008, p. 

13). The northernmost population near 

Kenna is evolutionarily considered to be 

the youngest population that is now 

genetically isolated from the central and 

southern populations. Genetic 

divergence of the northern population 

from the central populations has 

occurred due to natural and humancaused habitat conversion, including 

mesquite hummock landscapes, road 

and pad construction associated with oil 

and gas development, land conversion 

for agriculture, and the presence of short 

and tall grass prairie (Chan et al. 2008, 

p. 13). 

The southern population is 

considered to be the oldest population 

of dunes sagebrush lizard and is 

genetically isolated from the central 

population due to the presence of the 

uninhabitable caliche caprock of the 

Llano Estacado plateau. Due to the 

presence of the caprock, where dunes 

sagebrush lizards do not occur, suitable 

shinnery oak dune habitat is limited to 

a narrow 8-km (4.9-mile) patch between 

the southern and central populations. 

Data from Chan et al. (2008, p. 10) 

suggest that conservation of large areas 

that contain a network of dune 

complexes is needed to maintain 

historical levels of connectivity, and 

maintain the unique genetic qualities of 

the three dunes sagebrush lizard 

populations in New Mexico. 

Texas 

In Texas, the species was historically 

found in Andrews, Crane, Ward, and 

Winkler Counties. During 2006 and 

2007, surveys were conducted to 

determine the current distribution of the 

dunes sagebrush lizard in the State. 

Surveys were conducted at 27 sites (19 

of these sites were historical localities) 

that contained potential dunes 

sagebrush lizard habitat in Andrews, 

Crane, Cochran, Edwards, Ward, and 

Winkler Counties. Dunes sagebrush 

lizards were found at only 3 of the 27 

sites surveyed (Laurencio et al. 2007, p. 

7). Two of the sites were in large 

patches of shinnery oak dunes that 

stretch through Ward, Winkler, and 

Andrews Counties. In north and western 

Crane County, shinnery oak dune 

habitat exists, but dunes sagebrush 

lizards were not found. One dunes 

sagebrush lizard was found at a site in 

Gaines County that is within the 

easternmost contiguous habitat that 

stretches from the southernmost 

population in New Mexico (Laurencio et 

al. 2007, p. 11). The sites where dunes 

sagebrush lizards were detected in 

either 2006 or 2007 likely comprise the 

last occupied habitat for dunes 

sagebrush lizards in Texas (Laurencio et 

al. 2007, p. 11). During these surveys the 

search time to find dunes sagebrush 

lizards was between 68 and 115 personminutes. The species is considered rare 

at sites where it takes more than 60 

minutes to find a dunes sagebrush 

lizard. By comparison, at some sites in 

shinnery oak dune habitat in New 

Mexico, 74 percent of dunes sagebrush 

lizards are found within 31 personminutes. The longer search time 

required to encounter individuals in a 

given area may represent a lower 

number of individuals in that area. 

Future surveys should incorporate 

detection probabilities and utilize 

standard survey techniques for the 

species, in order to more accurately 

compare results. 

Dunes sagebrush lizard populations in 

Texas are all on private land except for 

the population at Monahans Sandhills 

State Park, a 1,554-ha (3,840-ac) park 

where dunes sagebrush lizards were 

thought to be extirpated after surveys 

were completed in 2007 (Laurencio et 

al. 2007, p. 11). In 2010, the park was 

again surveyed, and dunes sagebrush 

lizards were present (Fitzgerald 2010, p. 

1). Monahans Sandhills State Park is a 

well-known historic locality that is the 

only area where dunes sagebrush lizards 

have been known to occur on public 

lands in Texas. It is evident that the 

dunes sagebrush lizard is still present at 

the park, but the negative survey data 

from 2007 suggests they may be present 

in small numbers, and that further 

monitoring should be done at this site. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act (16 U.S.C. 1533), 

and its implementing regulations at 50 

CFR part 424, set forth the procedures 

for adding species to the Federal Lists 

of Endangered and Threatened Wildlife 

and Plants. Under section 4(a)(1) of the 

Act, we may list a species based on any 

of the following 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; and (E) 

other natural or manmade factors 

affecting its continued existence. Listing 

actions may be warranted based on any 

of the above threat factors, singly or in 

combination. Each of these factors is 

discussed below. 

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A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

In 1982, there was an estimated 

400,000 ha (1,000,000 ac) of habitat 

suitable for the dunes sagebrush lizard 

in New Mexico. Today, there is an 

estimated 240,000 ha (600,000 ac) of 

suitable habitat, a decrease of 40 

percent. Within the remaining suitable 

habitat, the current occupied range is 

estimated to cover 405,599 ac (165,759 

ha) (McDaniel et al. 1982, p. 12). Other 

portions of the range have been 

developed for oil and gas infrastructure. 

The shinnery oak community that 

supports the dunes sagebrush lizard is 

now considered a highly threatened 

community (Dhillion et al. 1994, p. 52). 

Changes in either land management 

practices or climate that impact the 

vegetative community could destabilize 

the dunes and reduce the potential for 

the habitat to persist (Muhs and 

Holliday 2001, p. 86). 

In addition to habitat loss, habitat 

fragmentation breaks up large areas of 

suitable habitat into smaller patches. 

This causes the removal of interior 

habitat, the loss of vegetation and cover, 

and an increase in the proportion of 

habitat edge to interior. Habitat edge is 

the outer portion of a patch that abuts 

converted or otherwise unsuitable 

habitat, and it is where there are the 

greatest interactions between the 

shinnery oak dune natural habitat and 

human-altered unsuitable habitat 

(Dramsted et al. 1996, p. 27). Shinnery 

oak provides basic needs that impact 

survivorship, growth, and reproductive 

ability for the dunes sagebrush lizard. In 

general, interior habitat provides 

protection from predators, habitat for 

mating and foraging, shade, and habitat 

for the dunes sagebrush lizard’s insect 

prey base (Degenhardt et al. 1996, p. 

160). It is thought that habitat edges that 

are adjacent to well pads and roads do 

not provide the basic structure for 

survivorship, growth, and reproduction. 

In general, individuals that live near the 

habitat’s edge have limited resources 

because the exterior areas do not 

provide adequate shade, cover, or 

resources for an insect prey base 

(Dramstad et al. 1996, p. 28). 

We do not know how large habitat 

patches need to be in order to maintain 

viable populations of dunes sagebrush 

lizards. However, literature published 

on other lizard species has shown that 

populations within smaller habitat 

patches have a greater risk of extinction 

than those in large habitat patches 

because small patches support fewer 

individuals and have a higher 

proportion of less suitable edge habitat 

than more suitable interior habitat 

(Dramsted et al. 1996, p. 20). Larger 

habitat patches provide vegetative 

cover, maintain dune structure, and 

provide habitat for the insect prey base. 

Dunes sagebrush lizard populations 

move across the landscape with the 

movement of the shinnery oak dune 

system. The movement of this dynamic 

system could be interrupted by habitat 

fragmentation that would prevent the 

natural shift in dunes and cause the 

current dune structures to collapse. 

There is no evidence to suggest that 

dunes sagebrush lizards will traverse 

unsuitable habitat to find suitable 

habitat patches (Fitzgerald et al. 1997, p. 

26). Connectivity and movement 

between patches could play an 

important role in determining the 

occupancy and sustainability of each 

patch (Barrows and Allen 2007, p. 66). 

Removal of a patch reduces the size of 

a population, increasing the probability 

of local extinctions and reducing the 

stability of the population (Dramsted et 

al. 1996, p. 23). If dunes sagebrush 

lizards are unable to move between 

habitat patches because of fragmentation 

and habitat loss, genetic diversity will 

be lost (Chan et al. 2008, p. 10). For this 

reason, areas of apparently suitable, but 

currently unoccupied habitat may be 

important to the long term survival of 

dunes sagebrush lizards, but we have no 

data to support this hypothesis for 

dunes sagebrush lizards. 

In the dynamic shinnery oak dune 

system, habitat patches have not been 

consistent over time, and genetic 

diversity of populations has historically 

been linked to the connectivity of the 

entire system (Chan et al. 2008, p. 10). 

The habitat for the dunes sagebrush 

lizard is currently patchy and 

fragmented throughout the dunes 

sagebrush lizard’s range, and 

populations are not connected by 

suitable habitat due to natural and 

human-caused processes (Chan et al. 

2008, p. 10). Therefore, the loss of 

habitat and fragmentation can lower 

migration rates and genetic connectivity 

among remaining populations of dunes 

sagebrush lizards, reducing genetic 

variability and increasing extinction 

risk. 

For the similar sand-dwelling 

Coachella Valley fringe-toed lizard 

(Uma inornata), a decrease in habitat 

patch size resulted in an increased 

probability of local extinction. For 

isolated habitat patches to sustain lizard 

populations, patch size needed to be at 

least 100 ha (247 ac) (Chen et al. 2006, 

p. 28). When large habitat patches are 

divided into smaller patches, there is 

increased edge habitat, decreased 

interior habitat, and increased 

probability of local extinction of the 

species within these patches. Lizards 

within smaller habitat patches have an 

increased chance of going extinct 

because they have less of a barrier 

between the core patch and the habitat 

disturbance. The probability of a species 

going extinct in local habitat patches 

increases with the increasing isolation 

and decreasing size of that patch 

(Dramstad et al. 1996, pp. 20–24). 

Additional research will verify if this is 

true for dunes sagebrush lizard. 

The shinnery oak dune system has 

undergone extensive alteration and 

fragmentation because of past and 

present land uses, including oil and gas 

development, habitat conversion for 

cropland and rangeland, and offhighway vehicle (OHV) use (Painter et 

al. 1999, p. 1). Due to habitat conversion 

and fragmentation, there are historical 

areas that no longer support populations 

of dunes sagebrush lizards (Sias and 

Snell 1997, p. 1; Laurencio et al. 2007, 

p. 1; Chan et al. 2007, p. 337). In Texas, 

dunes sagebrush lizards no longer 

occupy 86 percent of the historically 

occupied sites (Laurencio et al. 2007, p. 

5). Dunes sagebrush lizards were not 

found at 20 percent of historically 

occupied sites that were surveyed 

during distribution studies in New 

Mexico (Painter et al. 2008, p. 1). Other 

threats that are also expected to 

contribute to habitat loss, modification, 

or fragmentation in the future include 

wind and solar energy development, 

climate change (discussed in Factor E, 

below), and die-off of shinnery oak due 

to natural events. 

Oil and Gas Development 

The infrastructure for oil and gas 

development includes roads, pads 

where well pumps and drilling rigs are 

placed, battery tanks, power lines, 

pipelines, and injection wells. As 

discussed below, increased oil and gas 

development in the range of the dunes 

sagebrush lizard, including seismic 

exploration, has caused direct and 

indirect effects to dunes sagebrush 

lizard habitat. Removal and 

fragmentation of dunes sagebrush lizard 

habitat has been caused by a grid of 

roads and pads, pipelines, and power 

lines that are found throughout the 

entire range of the dunes sagebrush 

lizard. Oil and gas extraction activities 

have destroyed and fragmented dunes 

sagebrush lizard habitat and have 

resulted in population losses, including 

all localities within northeastern Crane 

County, Texas, where historical 

populations have been extirpated 

(Laurencio et al. 2007, p. 9). A 2007 

report from the Bureau of Land 

Management (BLM) (pp. 3–16) states 

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that there have been significant 

reductions of dunes sagebrush lizard 

population sizes in New Mexico that are 

associated with surface disturbance and 

removal of shinnery oak due to 

activities such as oil and gas 

development, herbicide treatment, and 

the creation of roads associated with 

new rights-of-way. According to the 

BLM’s data, 65 percent of occupied or 

suitable shinnery oak habitat across the 

lizard’s range in New Mexico, has been 

fragmented with roads and well pads 

(Hill 2008, pers. comm.). 

Much of the dunes sagebrush lizard’s 

current range has been developed or is 

planned for future oil and gas 

development. In Texas, over 50 percent 

of oil production occurs in Districts 8 

and 8A (Texas oil and gas districts); 

these districts overlap the known 

geographic range of dunes sagebrush 

lizards (Tarver and Dasgupta 1997, p. 

3670). 

Currently, 70 percent of land within 

the New Mexico range of the dunes 

sagebrush lizard has been leased by 

private entities, BLM, or the New 

Mexico State Land Office (NMSLO) for 

oil and gas exploration and 

development (Winter 2010, p. 2). 

Seventy-one percent of the minerals 

within the range of the dunes sagebrush 

lizard are Federally owned and fall 

under BLM lease stipulations and the 

Pecos District (NM) Special Status 

Species Resource Management Plan 

Amendment (RMPA). The RMPA was 

developed to address sensitive species 

conservation concerns and to establish 

the minimum requirements that will be 

applied to all future Federal activities 

covered by the RMPA for both the dunes 

sagebrush lizard and the lesser prairie 

chicken (Tympanuchus pallidicinctus), 

which share some common habitat in 

New Mexico. 

Density of Wells and Well Pads 

In New Mexico, Sias and Snell (1998, 

p. 3) reported a negative relationship 

between oil well density and dunes 

sagebrush lizard abundance and noted 

an environmental sensitivity not found 

in other reptile species. Dunes 

sagebrush lizard abundance declined by 

25 percent when there were 13 oil or gas 

well pads per section (each section has 

an area of approximately 260 ha (640 

ac)), and the number of dunes sagebrush 

lizards declined by 50 percent when 

there were 29 pads per section (Sias and 

Snell 1998, p. 3). Any shinnery oak 

dune habitat within 600 m (1968 ft) of 

any well supported 31 to 52 percent 

fewer dunes sagebrush lizards than 

areas farther than 600 m (1968 ft) from 

a well (Sias and Snell 1998, p. 1). 

The 172,900 ha (427,200 ac) of 

shinnery oak dune habitat that have 

been fragmented with roads and well 

pads have 5,911 oil well pads or 

injection wells and 529 gas wells. Each 

oil pad averages 2 or 3 acres, and each 

gas pad averages 3 or 4 acres. Currently 

there are approximately 9,700 ha 

(24,000 ac) of well pad disturbance in 

New Mexico, not including roads, 

within the area occupied by the dunes 

sagebrush lizard (Hill et al. 2008, p. 1). 

The oil field with the greatest impact 

to dunes sagebrush lizard habitat is in 

the southern part of the dunes sagebrush 

lizard’s range, where the density of 

roads and well pads may be 

contributing to further separation of the 

southern population from the central 

population of dunes sagebrush lizards 

(Chan et al. 2008, p. 9). This 

development covers an area of shinnery 

oak dunes measuring 8 km (5 mi) by 26 

km (16 mi) between U.S. Highway 82 

and U.S. Highway 62 in Lea and Eddy 

Counties. In this area there are 142 

sections (36,780 ha (90,880 ac)) where 

the well pad density is greater than 13 

wells per section. Throughout the 

southern part of the dunes sagebrush 

lizard’s range, the majority of these 

sections of land have greater than 20 

wells per section, and some have greater 

than 40 wells per section. The highest 

density of well development in this area 

has more than 60 wells per section with 

a maze of associated roads (Hill et al. 

2008, p. 1). In a special species planning 

area within BLM’s Pecos District, which 

incorporates all of the dunes sagebrush 

lizard’s habitat on BLM land in New 

Mexico, approximately 100 new wells 

per year are to be drilled over the next 

20 years (BLM 2007, p. 4–37). 

An example of the impacts of well 

placement on the dunes sagebrush 

lizard can be found in two sections 

(approximately 520 ha (1,280 ac)) of 

shinnery oak dune habitat in the area of 

Loco Hills in the southern part of the 

dunes sagebrush lizard’s range in Eddy 

County (40 km (25 mi) east of Artesia). 

This area once supported one of the 

most persistent populations of dunes 

sagebrush lizards in the State and was 

used for many years as an observation 

site for students and researchers 

studying the dunes sagebrush lizard. As 

of 2003, over 40 oil wells had been 

placed on these sections; extensive 

surveys conducted in this area found no 

dunes sagebrush lizards present (Service 

2007, p. 5; Fitzgerald 2008, p. 1). 

Hatchling and adult dunes sagebrush 

lizards have been found in shinnery oak 

flats between large dunes, suggesting 

that the area between the sand dunes is 

important for dispersal. Surveys by the 

BLM recorded dunes sagebrush lizards 

in the shinnery oak flats (Bird 2007, p. 

2). In the past, oil and gas development 

has been directed into the shinnery oak 

flats and out of the dune complexes to 

lessen the impact to the dunes 

sagebrush lizard. However, 

development in the shinnery oak flats 

may be affecting dispersal of the dunes 

sagebrush lizards from one dune 

complex to another (Painter et al. 2007, 

p. 3). Currently there are no 

considerations being made for 

maintaining these undeveloped 

corridors in shinnery oak flats between 

dune complexes, which may be a 

significant threat to dunes sagebrush 

lizard dispersal. 

Roads and Well Pads 

Based on various studies in similar 

lizard species, it would be expected that 

there would be negative impacts to 

dunes sagebrush lizard habitat as a 

result of roads and pads associated with 

oil and gas development. These impacts 

include soil compaction, decreased 

stability of microclimates, loss of 

habitat, decreased habitat quality, 

division of the ecosystem with artificial 

gaps, abrupt habitat edges, conversion of 

habitat interior to habitat edge, and 

introduction of nonnative weed species 

(Endriss et al. 2007, p. 320; DelgadoGarcia et al. 2007, p. 2949). Negative 

impacts of roads and pads to the lizard 

populations include the subdivision of 

populations into smaller and more 

vulnerable patches; inhibited access to 

resources for foraging, breeding, nesting, 

predator avoidance, and 

thermoregulation; behavior 

modification; and direct mortality due 

to collisions (Jaeger et al. 2005, p. 329; 

Ingelfinger and Anderson 2004, p. 385; 

Delgado-Garcia et al. 2007, p. 2949; 

Ballesteros-Barrera et al. 2007, p. 736; 

Sias and Snell 1995, p. 28). When the 

shinnery oak dune habitat is destroyed 

or fragmented by roads and pads, the 

resources provided by the shinnery oak 

are subsequently reduced. In studies of 

other lizard species where habitat is 

highly fragmented, lizards are limited to 

small habitat patches. These studies 

have also found increased mortality due 

to collisions with vehicles and 

inaccessibility to habitat, mates, and 

prey reduce the population size and 

population persistence (Delgado-Garcia 

et al. 2007, p. 2949). 

A common method of creating roads 

and pads in dune areas is to truck 

caliche (soil with high amounts of 

calcium carbonate) into the sand 

system. Dunes sagebrush lizards are not 

found in areas with compact soil, like 

that of caliche roads and well pads 

(Fitzgerald et al. 1997, p. 3). Shinnery 

oak requires permeable sand in order to 

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establish and grow and does not grow in 

areas with high amounts of calcium 

carbonate (Peterson and Boyd 1998, p. 

6). 

The vast network of roads and pads 

throughout the shinnery oak dune 

habitat alters the habitat, making it 

difficult for shinnery oak to persist; the 

trees cannot grow through compacted 

areas, with increased calcium carbonate, 

or through permanently paved areas. 

Well pad and road construction removes 

shinnery oak, and further degrades the 

habitat by compacting the soil. After 

well pads are abandoned, shinnery oak 

does not reestablish unless the caliche 

is removed (Boyd and Bidwell 2002, p. 

332). 

The current existence and future 

establishment of roads and well pads 

throughout the dunes sagebrush lizard’s 

habitat is a significant threat to the 

species throughout its range. Impacts 

from roads and well pads cause the loss 

of basic needs including habitat for 

foraging, breeding, nesting, predator 

avoidance, and thermoregulation. 

Pipelines 

Every oil or gas well has an associated 

pipeline, and each oil or gas company 

has a separate right-of-way for each 

pipeline. Pipelines located throughout 

suitable and occupied dunes sagebrush 

lizard habitat destabilize dunes because 

heavy equipment is used to remove 

shinnery oak and bury the lines in the 

sand. Pipelines also expose dunes 

sagebrush lizards to petroleum chemical 

leaks and an increased likelihood of 

being crushed by OHV travel due to 

maintenance crews using vehicles along 

pipelines (Sias and Snell 1998, p. 3). On 

May 16, 2010, a pipeline burst in dunes 

sagebrush lizard habitat, spraying oil 

into the air and across the landscape 

(Leavitt 2010, p. 1). These spills 

introduce toxins and contaminants into 

the soil and cover surrounding 

vegetation. 

There have been numerous recorded 

instances of reptiles and amphibians 

being trapped in pipeline, waterline, 

and telecommunication line trenches 

(Hawken 1951, p. 81; Anderson et al. 

1952, p. 276). For example, in 2001, a 

4.8-km (3.0-mi) long telecommunication 

line trench (similar in structure to 

pipeline trenches) on Albuquerque, 

New Mexico’s West Mesa was 

monitored for trapped animals. During 

23 days of monitoring, 298 reptiles and 

amphibians, including several lizard 

species, were removed from the trench 

(Painter 2008, p. 1). There were no 

escape ramps along the trench, so it was 

impossible for animals to escape. 

During a distribution survey for dunes 

sagebrush lizards in July 2008, the New 

Mexico Department of Game and Fish 

(NMDGF) found an open pipeline ditch 

that went through State, private, and 

BLM land. The open ditch was 

approximately 1.2 m (4 ft) wide and 1.2 

m (4 ft) deep, bisecting a dune complex 

known to be occupied with dunes 

sagebrush lizards. The large, open ditch 

had formed a pitfall trap where animals 

could not escape if they fell in. There 

were no dunes sagebrush lizards found 

in the ditch at the time of the survey, 

but other reptiles were found in the 

ditch, and surveyors were concerned 

that dunes sagebrush lizards could 

easily be trapped in the ditch (Currylow 

et al. 2008, p. 1). 

Some existing pipelines located 

within shinnery oak dunes provide 

temporary dune-like areas where dunes 

sagebrush lizards are found. Twentyfour percent of dunes sagebrush lizards 

found during BLM surveys were found 

along pipelines adjacent to shinnery oak 

dunes (Bird 2006, p. 2), although it is 

not known how dunes sagebrush lizards 

utilize existing pipelines (Sias and Snell 

1998, p. 5; Bird 2005, p. 1; Bird 2006, 

p. 1; Bird 2007, p. 1), and it is unclear 

whether these areas provide permanent 

habitat. 

Pipelines are located throughout the 

range of the dunes sagebrush lizard, are 

currently being built with every well 

pad, and will continue to be built in the 

future. There are no established 

corridors for pipelines and each 

pipeline has its own right-of-way, 

making for new disturbed areas each 

time a pipeline is established. We 

believe pipelines pose a significant 

threat to the dunes sagebrush lizard in 

areas where oil and gas infrastructure is 

most dense, especially as increases in 

oil and gas activities expand in the 

central and northern parts of the range 

of the species. Unless they are routed 

around habitat, the current existence 

and future establishment of pipelines 

throughout the dunes sagebrush lizard’s 

habitat is a significant threat to the 

species throughout its range. 

Seismic Exploration 

Seismic exploration utilizes 

artificially induced shock waves to 

search for subsurface deposits of crude 

oil, natural gas, and minerals, and to 

facilitate the location of prospective 

drilling sites. Shock waves are produced 

by vibratory mechanisms mounted on 

specialized trucks known as thumper 

trucks that weigh approximately 60 

tons. Seismic waves then reflect and 

refract off subsurface rock formations 

and travel back to acoustic receivers 

called geophones. The time it takes for 

seismic energy to return aids in the 

estimation of the structure and 

stratigraphy of subsurface formations 

(Pendleton et al. 2008, p. 1). Seismic 

exploration is conducted prior to the 

development of oil and gas fields, in 

order to determine the below surface 

availability of oil or gas and refine the 

placement of well pads. 

Seismic exploration for oil and gas is 

a periodic threat to the dunes sagebrush 

lizard and its habitat. Threats to dunes 

sagebrush lizard habitat occur because 

heavy thumper trucks can cause the 

destabilization of dunes by driving 

through dune complexes (Painter 2004, 

p. 4). Seismic exploration can also pose 

a direct threat to the dunes sagebrush 

lizard. Dunes sagebrush lizards are 

dormant and immobile during colder 

winter months (October through March). 

If seismic exploration occurs during the 

winter months when dunes sagebrush 

lizards are dormant beneath the soil 

surface and unable to move, dunes 

sagebrush lizards could be crushed. If 

the exploration occurs during the 

nesting season, eggs that are buried 

below the surface could also be 

destroyed (Painter 2004, p. 4). Seismic 

exploration poses an imminent threat 

for a short period of time while the 

trucks are crossing a given area. Once an 

area has been surveyed, it will likely not 

be surveyed again. Proposed seismic 

explorations in an area north of the Loco 

Hills will cover up to 650 ha (1,600 ac) 

of suitable and occupied dunes 

sagebrush lizard habitat and pose an 

indirect threat through further 

development, which will lead to habitat 

fragmentation and isolation (discussed 

above) north of the already dense oil 

fields in Loco Hills. There are ongoing 

permit applications for seismic 

exploration within both occupied and 

unoccupied suitable habitat across the 

range of the dunes sagebrush lizard. We 

believe that seismic exploration is a 

localized threat with moderate impacts 

to individual dunes sagebrush lizards, 

but it is usually a prelude to the future 

expansion of oil and gas development in 

an area. 

Wind and Solar Energy Development 

Eastern New Mexico and western 

Texas are highly suitable areas for wind 

and solar energy development. The 

NMSLO has leased 1,520 ha (3,757 ac) 

of trust land in Chaves and Roosevelt 

Counties to Xcel Energy for a 120- 

megawatt (MW) wind farm. 

Additionally, two new wind projects are 

under development on State trust lands 

in Chaves County, and one in Eddy 

County. The Service has also been 

contacted by a consultant for a wind 

energy farm to be located in Lea County, 

near Tatum, New Mexico. The proposed 

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project area is near the range of the 

dunes sagebrush lizard (Riley 2008). 

The infrastructure for wind and solar 

energy would cause similar habitat 

fragmentation as that produced by oil 

and gas development. Potential direct 

effects to the dunes sagebrush lizard 

from wind energy development include 

physical disturbance during 

construction and maintenance of a 

project, habitat loss, and habitat 

fragmentation associated with the 

infrastructure of the project. A wind 

farm infrastructure typically consists of: 

(1) The physical disturbance around a 

tower; the area of a turbine workspace 

during construction (temporary) is 

usually a 46 to 61 m (150 to 200 ft) 

radius around the turbine and 

permanently a 15 m (50 ft) radius; (2) 

Gravel access roads linking wind 

turbines strings to each other and to 

existing roads; (3) Area for a concrete 

batch plant, if required; and (4) 

Buildings housing electrical switchgear, 

supervisory control and data acquisition 

central equipment, and maintenance 

facilities. Additionally, vehicle traffic to 

turbines over the life of the facility, 

expected to average 20 years, could pose 

a threat similar to the infrastructure of 

oil and gas development to the dunes 

sagebrush lizard. Alteration of habitat 

related to wind energy development 

could influence habitat suitability for 

this species; however, we are unaware 

of any studies at wind energy 

development sites that have examined 

these effects. 

Although there is no specific 

information available to implicate wind 

or solar energy development as a threat 

to the dunes sagebrush lizard at this 

time, there is concern regarding 

potential effects if wind and solar 

development were to occur in the 

species’ habitat. More information is 

necessary to determine if any effects 

will result from specific alternative 

energy projects that will be located 

within dunes sagebrush lizard habitat. 

However, the BLM’s RMPA states that 

applications to permit either solar or 

wind energy on public land within the 

RMPA planning area will not be 

approved unless the applicant can 

demonstrate, using peer-reviewed 

science, that there will be no negative 

impacts to dunes sagebrush lizards. 

Off-Highway Vehicle (OHV) Use 

An OHV is any motorized vehicle 

capable of or designated for travel on or 

immediately over land, water, or other 

natural terrain. This could include 

motorcycles and off-highway motor 

bikes, all terrain vehicles, dune buggies, 

snowmobiles, most four-wheel drive 

automobiles, and any other civilian 

vehicle specifically designed for offroad travel (Ouren et al. 2007, p. 4). 

Extensive use of OHVs can cause soil 

compaction, reduce plant cover, and 

degrade habitat (Ouren et al. 2007, p. 4), 

causing the loss of basic needs 

including habitat for foraging, breeding, 

nesting, predator avoidance, and 

thermoregulation for lizard species 

(Jaeger et al. 2005, p. 329; Ingelfinger 

and Anderson 2004, p. 385; DelgadoGarcia et al. 2007, p. 2949; BallesterosBarrera et al. 2007, p. 736). Research in 

other dune systems has found that in 

areas where plant cover is reduced, 

there are greater rates of erosion that 

would lead to dune destabilization. 

Routes used by OHVs form mazes 

through large areas of dunes, 

fragmenting the habitat and reducing 

habitat connectivity at a landscape level 

(Ouren et al. 2007, p. 5). Studies on 

other lizard species have found that 

OHV travel causes increased mortality 

due to lizard collisions with the 

vehicles themselves (Delgado-Garcia et 

al. 2007, p. 2949). 

Use of OHVs has been determined to 

be one of the greatest threats to the 

Coachella Valley fringed toed lizard, 

which is another dune-restricted lizard 

species (Painter 2004, p. 5). The 

presence of OHV pathways throughout 

dunes sagebrush lizard’s habitat led 

researchers to believe that high levels of 

OHV activities were the cause for 

population losses in Texas (Laurencio et 

al. 2007, p. 10), but that is likely not the 

primary cause of extirpations in New 

Mexico (Painter 2004, p. 5). 

Nevertheless, OHV use is a factor 

impacting the species within parts of its 

geographic range. For example, on BLM 

land in New Mexico, established OHV 

areas such as the Square Lake Dune 

Complex and the Mescalero Sands 

North Dune OHV Area are adjacent to or 

within habitat occupied by the dunes 

sagebrush lizard. These OHV areas were 

established to concentrate OHV use to 

designated areas, and BLM made some 

dune complexes off limits to OHV use. 

The OHV use planned for the Square 

Lake Dune Complex is limited to 

existing roads, trails, and unvegetated 

dunes (BLM 2007, p. 4–45). This area is 

currently being used by OHVs, and BLM 

plans to formally designate this area for 

OHV use. Because the shinnery oak 

dunes in this area are occupied by 

dunes sagebrush lizards (Fitzgerald et 

al. 1997, Appendix 1), any violation of 

the limitations of OHV use to existing 

roads, trails, and unvegetated dunes is 

likely to negatively impact the dunes 

sagebrush lizards in this shinnery oak 

habitat. 

The Mescalero Sands North Dune 

OHV Area is considered an open area of 

more than 600 acres (243 ha), where 

vehicles are not restricted to designated 

trails (BLM 2007, p. 4–45), although this 

OHV area is occupied by dunes 

sagebrush lizards (Fitzgerald et al. 1997, 

Appendix 1). Authorized OHV activities 

have degraded shinnery oak dunes, 

potentially crushed dunes sagebrush 

lizards, and introduced weed species 

within the otherwise open dune 

blowouts (Hill 2008b, p. 1). At this OHV 

area, all surveyed dunes have multiple 

OHV trails, exposed shinnery oak roots, 

and erosion, and no dunes sagebrush 

lizards were detected in this area (Hill 

2008b, p. 1). 

In areas that are not designated for 

OHV use, there are no signs identifying 

that the area is closed to OHV traffic, 

and law enforcement is limited. There 

are restrictions to OHV use on lands 

managed by BLM and the State of New 

Mexico, but there is no signage and little 

enforcement. As a result, dune habitat is 

being destroyed and modified (Hill 

2008b, p. 1). Although OHV use is not 

known to be occurring in all portions of 

the range of the dunes sagebrush lizard, 

we believe it is a significant threat to the 

species where occupied dunes are 

located in OHV areas and extensive 

habitat degradation occurs. Off-highway 

vehicle use is not considered to be the 

most significant threat to the dunes 

sagebrush lizard, but it does contribute 

to a decline of habitat in areas where it 

is prevalent. 

Shinnery Oak Removal 

Shinnery oak is removed for the 

purpose of clearing for agriculture and 

for grazing. Shinnery oak is toxic to 

cattle when it first produces leaves in 

the spring, and it also competes with 

more palatable grasses and forbs for 

water and nutrients (Peterson and Boyd 

1998, p. 8). Shinnery oak is also 

managed for the control of boll weevil 

(Anthonomus grandis), which destroys 

cotton crops. Boll weevils overwinter in 

areas where large amounts of leaf litter 

accumulate. Fire is used to remove leaf 

litter, and then tebuthiuron, an 

herbicide, is used to remove shinnery 

oak (Plains Cotton Growers 1998, pp. 2– 

3). Over 40,000 ha (100,000 ac) of 

shinnery oak in New Mexico and 

400,000 ha (1,000,000 ac) of shinnery 

oak in Texas have been lost due to the 

spraying of tebuthiuron and other 

herbicides (Peterson and Boyd 1998, p. 

2). 

A 5-year study was conducted to 

determine the effects of tebuthiuron 

application on the dunes sagebrush 

lizard. This study documented that 

dunes sagebrush lizards were absent at 

50 percent of the previously occupied 

sites where spraying had occurred 

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(Painter et al. 1999, p. 2). Shinnery oak 

removal results in dramatic reductions 

and extirpations of dunes sagebrush 

lizards (Snell et al. 1997, p. 8). For 

example, the extirpation of dunes 

sagebrush lizards was repeatedly 

confirmed by Snell et al. (1997, p. 1) 

from areas that were treated with 

herbicides to remove shinnery oak. 

Dunes sagebrush lizard numbers 

dropped 70 to 94 percent in areas that 

were chemically treated, compared to 

adjacent untreated plots. Some plots 

experienced 100 percent population loss 

in areas treated with tebuthiuron. 

Painter et al. (1999, p. 38) estimated that 

about 24 percent of the total dunes 

sagebrush lizard habitat in New Mexico 

had been eliminated by 1999 due to 

herbicide spraying. 

Habitat loss and dunes sagebrush 

lizard declines are not linked to the 

actual application of tebuthiuron, but 

rather to the long-term effects associated 

with the removal of shinnery oak habitat 

(Snell et al. 1997, p. 3). Herbicide 

spraying removes or reduces natural 

shinnery oak vegetation and creates 

smaller habitat patches rather than 

naturally occurring large expanses of 

shinnery oak. Given the history and 

current practices of herbicide 

application within dunes sagebrush 

lizard habitat, much of the remaining 

areas are at risk. For example, if further 

parcels of suitable dunes sagebrush 

lizard habitat are treated, smaller habitat 

patches would be created, and we 

would expect the movement of dunes 

sagebrush lizards between local 

populations will be restricted. This 

could lead to further extirpations of 

dunes sagebrush lizards within patches. 

On BLM lands, the RMPA states that 

tebuthiuron may only be sprayed in 

shinnery oak habitat if there is a 500-m 

(1,600-ft) buffer around dunes, and that 

no chemical treatments should occur in 

suitable or occupied dunes sagebrush 

lizard habitat (BLM 2007, p. 4–22). 

However, the NMSLO and private land 

owners continue to use tebuthiuron to 

remove shinnery oak for cattle grazing 

and agriculture. The Natural Resource 

Conservation Service’s herbicide 

spraying has treated shinnery oak in at 

least 39 counties within shinnery oak 

habitat, which includes all of the 

counties with suitable and occupied 

habitat for the dunes sagebrush lizard 

(Peterson and Boyd 1998, pp. 4). The 

BLM also treats mesquite with 

herbicides to improve livestock forage. 

In order to treat encroaching mesquite, 

BLM aerially treats mesquite with a mix 

of the herbicides Remedy (triclopyr) and 

Reclaim (clopyralid). According to the 

RMPA, occupied and suitable habitat for 

the dunes sagebrush lizard should not 

be treated. These chemicals are used to 

treat the adjacent mesquite, but can also 

kill shinnery oak, depending on the 

concentration. 

Ongoing removal of shinnery oak on 

State and private lands in New Mexico 

and Texas is an imminent threat to the 

dunes sagebrush lizard with long-term 

negative effects. Buffering an individual 

dune from shinnery oak spraying is not 

sufficient to keep the habitat intact. 

Because the majority of the shinnery oak 

plant is underground and acts to 

stabilize the dunes, its removal in the 

vicinity of the dune will cause the dune 

to collapse (Muhs and Holliday 2001, p. 

75). 

We believe that the removal of 

shinnery oak with herbicides such as 

tebuthiuron is a significant threat to the 

dunes sagebrush lizard throughout its 

range. Habitat in which shinnery oak is 

removed with herbicides fails to meet 

the basic needs of the dunes sagebrush 

lizard, including foraging, breeding, 

nesting, predator avoidance, and 

thermoregulation. Habitat fragmentation 

has caused and will continue to cause 

inaccessibility to habitat, mates, and 

prey that could reduce the population 

size; threaten population persistence; 

and potentially cause local extirpations 

of dunes sagebrush lizards. 

Grazing 

As discussed above, removal of 

shinnery oak to improve rangelands is a 

threat to the dunes sagebrush lizard; 

however, there may also be direct 

impacts of grazing on dunes sagebrush 

lizards. While there has been no specific 

research regarding the impacts of 

grazing on dunes sagebrush lizards, 

dunes sagebrush lizards have been 

found in areas that are moderately 

grazed (Painter et al. 1999, p. 32). In 

shinnery oak dune habitat, high 

densities of livestock can lead to 

overutilization and result in reduced 

ground cover, increased annual grasses 

and forbs, decreased perennial grasses, 

and increased erosion (Painter et al. 

1999, p. 32). These conditions can be 

adverse for the dunes sagebrush lizard. 

Some research has shown that high 

levels of grazing removes grasses and 

forbs, compacts the soil, increases bare 

ground, and reduces water infiltration. 

These conditions could alter dune 

structure and decrease vegetation 

availability for foraging, mating, and 

predator avoidance (Smith et al. 1996, 

p. 1307; Castellano and Valone 2006, p. 

87). While it is clear from this 

discussion that shinnery oak removal to 

improve rangeland conditions is a threat 

to the species, the direct impact of 

grazing on dunes sagebrush lizards is 

unknown at this time. 

Other Factors Impacting Shinnery Oak 

In discussions with BLM habitat 

specialists, the Service learned that 

there are many natural events that can 

impact the shinnery oak dune system 

and have results similar to spraying 

with herbicide. Sudden oak death, 

infestation by root-boring insects, and a 

known moth parasite can quickly 

defoliate and kill large stands of 

shinnery oak (Hill 2008a, pers. comm.). 

According to BLM habitat specialists, in 

a system that is susceptible to 

environmental extremes, events such as 

drought and late freezes could cause 

dramatic shifts in the available habitat. 

For example, in early May of 2008, 

thousands of acres of shinnery oak dune 

habitat in the Caprock Wildlife Area in 

east central Chaves County, New 

Mexico, were defoliated. After 

reviewing the situation, Service and 

BLM staff determined that the 

defoliation was caused by the 

combination of low precipitation during 

the winter and a late freeze that stressed 

the oak. By early June, the trees had 

leafed out and were once again 

providing habitat for the dunes 

sagebrush lizard (Hill 2008a, pers. 

comm.). Large habitat patches are more 

likely than small, fragmented sites to be 

resilient to natural events. 

All of these factors could potentially 

cause the decline of shinnery oak 

habitat, and thus lead to the decline of 

dunes sagebrush lizards. The likelihood 

of habitat loss due to natural events is 

unknown and not predictable. Although 

these factors likely impact shinnery oak, 

we are unable to determine the longterm impact on shinnery oak dunes and 

dunes sagebrush lizards. 

Summary of Factor A 

Habitat specialists with limited 

geographic ranges, such as the dunes 

sagebrush lizard, are more vulnerable to 

habitat alterations than wide-ranging 

habitat generalists (Ballesteros-Barrera 

et al. 2007, p. 733). Habitat 

fragmentation and the overall reduction 

of shinnery oak dune habitat will 

impact survivorship, growth, and 

reproductive ability by increasing edge 

habitat and decreasing available cover. 

This will lead to smaller populations 

and will decrease connectivity between 

populations (Chan et al. 2008, p. 9). The 

size of the habitat patches and suitable 

dune complexes will influence the 

probability of individual habitat patches 

being eliminated in this dynamic 

system. It is important to maintain 

connectivity between shinnery oak dune 

patches in each of the geographic areas 

across the dunes sagebrush lizard’s 

known range (Chan et al. 2008, p. 9). 

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Because the habitat in both New Mexico 

and Texas is narrow and isolated, the 

dunes sagebrush lizard may be 

vulnerable to habitat degradation and 

the potential for habitat and range 

expansion may be unlikely. 

Removal of shinnery oak within 

occupied habitat poses a serious threat 

by generating or increasing a variety of 

stressors for the dunes sagebrush lizard, 

a species that depends on a very 

specialized dynamic system to survive. 

Shinnery oak stabilizes dunes in the 

short term, but overall the dunes are 

dynamic and slowly shifting across the 

landscape. Without shinnery oak, sands 

are not held in place and the entire 

dune community will be susceptible to 

wind erosion (Muhs and Holliday 1995, 

p. 198), thereby threatening the longterm persistence of the species. The 

dunes sagebrush lizard is threatened by 

habitat loss and fragmentation due to oil 

and gas development, and to shinnery 

oak removal for rangeland improvement 

and conversion to use for agriculture. 

Additionally, while renewable energy 

development, OHV use, and other 

impacts to shinnery oak are not 

considered to be major threats to the 

species, these activities represent 

additional stressors to the habitat of the 

species. For these reasons, we consider 

the cumulative habitat impacts in Factor 

A to be a threat to the dunes sagebrush 

lizard throughout its range, both now 

and continuing into the foreseeable 

future. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

The dunes sagebrush lizard is not a 

commercially valuable species, but 

could be increasingly sought by 

collectors due to its rarity. Areas 

inhabited by this species are open to 

public access, and populations that are 

thought to be small and localized could 

be affected and possibly extirpated if 

collection pressures increase. Scientific 

collecting is not thought to represent a 

significant threat to localized 

populations. Further, the States of New 

Mexico and Texas require scientific 

collecting and research permits for the 

dunes sagebrush lizard (NMDGF 1978, 

p. 7; TX House Bill 12, 2007, p. 1). 

Therefore, we do not consider 

overutilization to be a threat now or in 

the foreseeable future. 

C. Disease or Predation 

Disease and Parasites 

There are no specific studies on the 

impacts of disease or parasitism on 

dunes sagebrush lizards, but studies 

have been conducted on close relatives 

within the genus Sceloporus. 

Sceloporus lizards infected with malaria 

have reduced volumes of red blood 

cells, reduced hemoglobin (the protein 

that carries oxygen in the blood), 

impaired physical stamina, reduced fat 

stores, reduced number of offspring, and 

smaller testes (Klukowski and Nelson 

2001, p. 289). The incidence of infection 

of malaria in Sceloporus lizards is 

dependent on the lizard’s age, size, 

genetic background, and gender 

(Klukowski and Nelson 2001, p. 289). 

Other lizards in the genus Sceloporus 

have parasitic helminthes (a type of 

parasitic worm) in their gut. These 

helminthes have not been found in high 

number in dunes sagebrush lizards 

(Goldberg et al. 1995, p. 190). In general, 

other stressors in the environment, such 

as habitat degradation and pollution, 

may weaken species’ immune systems 

and make them more susceptible to 

disease (Whitfield et al. 2000, p. 657). 

Disease and parasitism are not currently 

known to be threats to the dunes 

sagebrush lizard, but may need to be 

investigated in areas where their 

population declines and losses are 

unexplained. 

Predation 

During Hill and Fitzgerald’s (2007) 

nesting ecology study, 25 percent of 

radio-tracked female dunes sagebrush 

lizards were eaten by coachwhips 

(Masticophis flagellum). Coachwhips 

are large, swift, diurnal snakes that feed 

primarily on lizard species. Another 

predator, the loggerhead shrike (Lanius 

ludovicianus), is found in the Mescalero 

Sands habitat. Loggerhead shrikes are 

birds that occur in many habitats from 

remote deserts to suburban areas. These 

small predators perch on trees, shrubs, 

poles, fences, and utility wires, and 

swoop down to capture and impale prey 

(Rappole 2000, p. 163). Increased 

perches and increased edge effects 

could lead to increased levels of 

predation that would impact the dunes 

sagebrush lizard. 

Power line grids are located 

throughout oil and gas developments. 

The BLM and the NMSLO do not have 

a database of the power lines within the 

shinnery oak habitat and range of the 

dunes sagebrush lizard; however, all 

well pad operations and power plants 

are connected with a grid of 

transmission lines throughout the dunes 

sagebrush lizard’s habitat. The ongoing 

threat associated with power lines and 

fences is that they provide perching 

habitat for predaceous birds throughout 

the shinnery oak dunes. The total miles 

of fence and power lines throughout the 

known range of the species has not been 

quantified. Although the presence of 

power lines likely increases perches for 

predators, we are currently unable to 

determine if predation has increased 

above natural levels or if the predation 

levels are a significant threat to the 

dunes sagebrush lizard. 

Summary of Factor C 

There are likely impacts to 

individuals or individual populations 

from the impacts under Factor C, 

particularly predation. However, we do 

not know the magnitude or the effect of 

these impacts on the long-term survival 

of the dunes sagebrush lizard at this 

time. Thus, we do not consider Factor 

C to be a threat to the species 

throughout its range, either now or in 

the foreseeable future. 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

The dunes sagebrush lizard occurs on 

lands managed by the BLM, NMSLO, 

State of Texas, and private entities. 

There have been considerable efforts 

directed towards the protection of dunes 

sagebrush lizard habitat, starting with a 

multi-stakeholder group called the 

southeastern strategy. This group 

developed the Collaborative 

Conservation Strategy for the dunes 

sagebrush lizard and the lesser prairie 

chicken in 2005. This strategy was then 

used as the foundation for BLM to 

develop their RMPA and for the 

development of the Candidate 

Conservation Agreement (CCA) and 

Candidate Conservation Agreement with 

Assurances (CCAA). If implemented as 

intended, the conservation strategy, 

RMPA, and CCA/CCAAs could be 

significant contributions to the 

conservation of these two species. 

BLM’s RMPA 

The BLM’s RMPA addresses the 

threats of shinnery oak removal due to 

herbicide spraying, and oil and gas 

development. 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. However, the plan 

provides for a variety of exceptions and 

has no schedule or planned monitoring 

to ensure that the protections are being 

provided. Future leasing would be 

allowed in closed areas of habitat if 

studies show that drilling and 

exploration would not impact the lesser 

prairie chicken or dunes sagebrush 

lizard, or, if at some time in the future, 

the lesser prairie chicken is no longer a 

candidate species (BLM 2007, p. 2–22). 

Currently, BLM is working with Texas 

A&M University to study the impacts of 

habitat fragmentation, and determine if 

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the measures outlined in the RMPA are 

effective at conserving habitat and 

dunes sagebrush lizard populations. 

The RMPA outlines protective 

measures and basic guidelines for 

developing around dunes sagebrush 

lizard habitat. The RMPA provides 

guidance for the management of the 

lands with dunes sagebrush lizard 

habitat, but it lacks regulatory strength 

and is only effective when used. Future 

implementation will determine the 

overall efficacy of the plan in 

contributing to the conservation of the 

dunes sagebrush lizard. 

Candidate Conservation Agreements 

A candidate conservation agreement 

(CCA) and candidate conservation 

agreement with assurances (CCAA) for 

the dunes sagebrush lizard and the 

lesser prairie chicken in New Mexico 

were finalized on December 8, 2008. 

These agreements allow private land 

owners and operators, such as ranchers 

and oil and gas companies, to 

participate in the conservation of the 

dunes sagebrush lizard. The agreements 

provide conservation measures that 

limit habitat modification and protect 

habitat corridors between shinnery oak 

dune complexes. The agreements also 

allow for reclamation of abandoned oil 

pads, removal of relic power lines, and 

restoration of shinnery oak dunes 

within suitable habitat. The CCA and 

CCAA are ‘‘umbrella’’ agreements under 

which individual entities participate. 

Currently, six private landowners and 

four oil companies (totaling 

approximately 200,000 acres) are 

enrolled within the range of the dunes 

sagebrush lizard. There are no enrolled 

properties that have certificates of 

inclusion/participation for both the 

ranching operations and oil and gas 

activities on the property. If a rancher 

enrolls a property in the CCA/CCAA, 

that rancher is responsible for the 

activities because he or she has 

discretion, and would not have control 

if oil and gas development occurs on 

their conservation acres. The same 

property would need to also be enrolled 

by the oil and gas operator to provide 

conservation measures for operator’s 

activities on that property. The efficacy 

of the agreements depends on sustained 

future participation by all entities with 

controlling interests on properties with 

suitable and occupied habitat for the 

dunes sagebrush lizard. There are 

hundreds of oil and gas operators in the 

range of the dunes sagebrush lizard, and 

participation throughout the majority of 

the dunes sagebrush lizard habitat 

would be necessary for the conservation 

of the species. 

In New Mexico, an estimated 35 

percent of the occupied range of the 

dunes sagebrush lizard is on privately 

owned and State-managed lands. This is 

a substantial percentage of land 

occupied by the dunes sagebrush lizard, 

and these lands are significant to the 

dunes sagebrush lizard’s continued 

existence. 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 NMSLO policy in 

place to protect sensitive species. Nearly 

all of the dunes sagebrush lizard habitat 

on New Mexico State Trust lands has 

been leased for oil and gas development 

with no stipulations on that 

development. The only mechanism for 

the preservation of dunes sagebrush 

lizard habitat on State Trust Lands is by 

having those lands enrolled in the 

CCAA. 

State Laws 

Under New Mexico’s Wildlife 

Conservation Act, on January 24, 1995, 

NMDGF listed the dunes sagebrush 

lizard as a group 2 Endangered Species 

(Painter et al. 1999, p. 1), which affords 

it protection from take, but not habitat 

destruction (NMDGF 1978, p. 9). The 

dunes sagebrush lizard is not listed as 

endangered or threatened in the State of 

Texas under the Texas Parks and 

Wildlife Code or the Texas 

Administrative Code (Texas Parks and 

Wildlife Department 1973, p. 1). 

Summary of Factor D 

Current regulations under State and 

local laws are not adequate to protect 

the dunes sagebrush lizard from known 

threats, because provisions that protect 

habitat are not included in these laws. 

In New Mexico, BLM’s RMPA covers 

Federal surface and mineral activities 

within the species’ range. Additionally, 

the CCA/CCAA includes the entire 

range of the dunes sagebrush lizard in 

New Mexico, but does not extend into 

Texas. Because participation in the 

CCA/CCAA by both oil and gas and 

ranching operators is not occurring 

throughout the range of the dunes 

sagebrush lizard, the efficacy of these 

conservation agreements has not yet 

been fully implemented and determined 

to be effective. 

In order for the agreements to benefit 

the dunes sagebrush lizard, oil and gas 

operators need to enroll throughout the 

lizard’s range, and habitat restoration 

and protection needs to occur in the 

dunes sagebrush lizard’s habitat. The 

CCA/CCAA funded the initial 

investigation into the restoration of 

shinnery oak dunes, but for now there 

are no known methods to restore the 

dunes sagebrush lizard’s habitat, and 

existing habitat should be protected by 

enrolling in the CCA/CCAA or with 

conservation easements. The current 

efforts have not provided the protection 

needed to remove or lessen the 

significant threats posed to the dunes 

sagebrush lizard. 

E. Other Natural or Manmade Factors 

Affecting Its Continued Existence 

Exposure to Pollutants 

Though few studies have been 

conducted to determine the full effects 

of pollutants on reptiles, there is 

conclusive evidence of some adverse 

impacts to lizard species (Whitfield et 

al. 2000, p. 657). Sias and Snell (1998) 

studied the effects of oil and gas wells 

on dunes sagebrush lizard abundance 

from 1995 to 1997. The results of their 

research showed a strong negative 

relationship between dunes sagebrush 

lizard population density and proximity 

to well pads. Specifically, they found a 

39 percent decrease in the abundance of 

dunes sagebrush lizards within 0 to 80 

m (0 to 262 ft) of wells. Sias and Snell 

(1995, p. 30) believed that oil and gas 

extraction resulted in a reduction in 

abundance of dunes sagebrush lizards as 

a result of: (1) Direct habitat loss due to 

construction of roads and well pads (as 

discussed above in Factor A); (2) 

poisoning of dunes sagebrush lizards 

from oil spills, hydrogen sulfide gas 

emissions, and exposure to chemicals 

and other toxins in the vicinity of oil 

and gas wells; (3) mortality caused by 

increased traffic; and (4) giving a 

competitor of the dunes sagebrush 

lizard a competitive advantage (see 

‘‘Competition’’ section below). Further, 

exposure to oil spills can cause dunes 

sagebrush lizards to become entrapped. 

During surveys for dunes sagebrush 

lizards in New Mexico, side-blotched 

lizards (Uta stansburiana) were found 

stranded in oil seepages, coated in oil 

and unable to move (Sias and Snell 

1996, p. 28). 

During petroleum extraction, 

hydrogen sulfide is removed from the 

petroleum and released into the air 

where it remains for up to one day. 

Hydrogen sulfide is heavier than air and 

tends to sink to the ground where it will 

remain until it is neutralized (Lusk and 

Kraft 2006, p. 1). Hydrogen sulfide is a 

highly toxic gas that is the dominant 

reduced (unoxygenated) sulfur gas in oil 

fields (Tarver and Dasgupta 1997, p. 

3669). Most of the sulfur that is emitted 

by oil and gas infrastructure ends up in 

the soil (Tarver and Dasgupta 1997, p. 

3674). Surface soil tests in active oil 

fields in Texas found sulfate (an 

oxygenated form of sulfur) levels in the 

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soil to range between 20 to 200 parts per 

million (ppm) near active facilities, as 

opposed to 1 ppm in similar soils not 

adjacent to oil facilities (Tarver and 

Dasgupta 1997, p. 3674). 

Measurements of hydrogen sulfide 

have been taken at a site near Loco 

Hills, New Mexico (40 km (25 mi) east 

of Artesia), where large populations of 

dunes sagebrush lizards were found 

historically. Dunes sagebrush lizards dig 

just below the soil surface during hot 

parts of the day and at night, and would 

therefore be in direct contact with the 

sulfates in the soil. Sulfates increase the 

anaerobic activities in the soil, make the 

soil more acidic, and could cause 

protein and gene damage to organisms, 

depending on the duration of exposure 

(Escher and Hermens 2002, p. 4203). Air 

concentrations of hydrogen sulfide as 

high as 33 ppm were recorded for a 

period of 32 minutes in the Loco Hills 

area (Lusk and Kraft 2008, p. 19). Active 

dunes sagebrush lizards are predicted to 

show adverse effects at concentrations 

greater than 14 ppm (Lusk and Kraft 

2008, p. 20). Lusk and Kraft (2008) 

recommend the adoption of interim air 

quality standards for the protection of 

wildlife at 1 ppm, the requirement of 

routine monitoring of hydrogen sulfide 

to identify sources in areas where 

ambient concentrations exceed 1 ppm, 

and the reduction of emissions to meet 

these wildlife conservation goals. 

The long-term impacts of oil field 

pollutants to dunes sagebrush lizard 

populations, fecundity, and 

survivorship are unknown. Oil fields 

contain a variety of organic toxic 

pollutants including petroleum 

hydrocarbons, polycyclic aromatic 

hydrocarbons (PAHs), phenanthrene, 

fluoranthene, and benzo[a]anthracene. 

Two studies on the impacts of oil and 

gas pollution to another sand-dwelling 

lizard, the Nidua fringe-fingered lizard 

(Acanthodactylus scutellatus), a sanddwelling species from the Middle East, 

were conducted in the oil fields in 

Kuwait. Tissue samples taken from both 

the fringe-fingered lizard and its insect 

prey base (ants) found the PAH 

concentrations in the fringe-fingered 

lizard and ant tissue increased with the 

exposure to the toxins. The levels of 

PAHs in the fringe-fingered lizard and 

ant tissues were high enough to impact 

the function of vital organs. Fringefingered lizards are not able to remove 

the toxins from their system quickly due 

to their slow metabolic rate and simple 

enzyme system (Al-Hashem et al. 2007, 

p. 555). Additionally, the exposure to 

oil field chemicals affected the behavior 

and foraging time for the fringe-fingered 

lizard by altering time of emergence and 

basking behavior (Abdulla et al. 2008, p. 

589). 

With much of the dunes sagebrush 

lizard’s habitat located in small dune 

patches within oil and gas fields, the 

potential for exposure to hydrogen 

sulfide, PAHs, and oil spills is high. If 

dunes sagebrush lizards are exposed to 

this type of pollution, we may expect 

physiological dysfunction, impaired 

foraging abilities, increased mortality, 

and population declines. For this 

reason, we believe the exposure to 

pollutants from oil and gas production 

may be a factor affecting the survival of 

the species. 

Climate Change 

The Intergovernmental Panel on 

Climate Change (IPCC) states that 

warming of the climate system is 

unequivocal, based on observations of 

increases in global average air and ocean 

temperatures, widespread melting of 

snow and ice, and rising global average 

sea level (2007a, p. 5). For the next two 

decades, a warming of about 0.4 degrees 

Fahrenheit (°F) (0.2 degrees Celsius (°C)) 

per decade is projected (IPCC 2007a, p. 

12). Temperature projections for the 

following years increasingly depend on 

specific emission scenarios (IPCC 2007a, 

p. 13). Various emissions scenarios 

suggest that average global temperatures 

are expected to increase by between 1.1 

°F and 7.2 °F (0.6 °C and 4.0 °C) by the 

end of the 21st century, with the 

greatest warming expected over land 

(IPCC 2007a, p. 13). Warming in western 

mountains is projected to cause 

decreased snowpack, more winter 

flooding, and reduced summer flows, 

exacerbating competition for overallocated water resources (IPCC 2007b, 

p. 14). The IPCC reports that it is very 

likely that hot extremes, heat waves, 

and heavy precipitation and flooding 

will increase in frequency (IPCC 2007b, 

p. 18). 

It is anticipated that climate change 

will intensify the effects of other 

ongoing habitat impacts, including 

impacts of oil and gas development and 

shinnery oak removal (Sinervo et al. 

2010, p. 894). The predicted changes in 

climate in the desert Southwest include 

higher temperatures and less rainfall, 

and changes in storm frequency and 

severity (Seager et al. 2007, p. 1183; 

Saunders et al. 2008, p. 5). Higher 

temperatures and lower rainfall, as 

predicted by various models for the 

southeastern part of New Mexico, could 

manifest as further degradation of the 

shinnery oak dune system (Seager et al. 

2007, p. 1183). These increased 

temperatures could directly affect 

individuals by reducing habitat and by 

converting shinnery oak vegetation 

communities to communities with 

species such as yucca (Yucca elata), 

mesquite, and cacti (Family Cactacea). 

Predicted changes are not known for 

shinnery oak, but it is anticipated that 

large contiguous stands of shinnery oak 

will be necessary for the system to be 

resilient to climate change. 

Climate change is predicted to cause 

a global decline in lizard populations, 

with an estimated 40 percent of lizard 

populations becoming extinct by 2080 

(Huey et al. 2010, p. 832). In a recent 

study in Mexico, 12 percent of 200 

lizard populations went extinct due to 

the magnitude of warming in the spring 

(Huey et al. 2010, p. 832). For the 

lizards studied, warming caused the 

lizards to avoid activities such as 

foraging or reproducing. In order to 

avoid becoming overheated, the lizards 

remained in cooler refuges. This 

research has shown evidence of actual 

extinctions of local populations linked 

to changes in climate in Sceloporus 

lizards (the genus of the dunes 

sagebrush lizard) (Sinervo et al. 2010, p. 

894). 

The severity of impacts to all plants 

and wildlife resulting from climate 

change will depend on the amount of 

habitat available for dispersal. The 

dunes sagebrush lizard is a habitat 

specialist, and its habitat is not 

expanding (Peterson 1992, p. 2). The 

dune system that the dunes sagebrush 

lizard inhabits is limited by the 

distribution of shinnery oak and may be 

vulnerable to rapid habitat changes 

(Muhs and Holliday 2001, p. 86). 

Organisms that are able to adapt to 

changing environments and shifts in 

habitat availability will likely be more 

apt to survive climate change (Massot et 

al. 2008, p. 466). The impacts of climate 

change to the shinnery oak dune system, 

including increased temperatures, 

decreased precipitation, increased sand 

supply, decreased vegetative cover, and 

increased evaporation, would all lead to 

increased movement of sand dunes and 

more unstable dunes (Muhs and 

Holliday 1995, p. 206). The shinnery 

oak dune habitat relies on the stability 

and underground structure of the 

shinnery oak. Without the shinnery oak, 

the dunes will be unstable and will 

move at a much faster pace (Muhs and 

Holliday 2001, p. 75). The historical 

mobilization of sand that forms the 

current shinnery oak dune system was 

caused by relatively minor changes in 

climate (Holliday 2001, p. 88). 

Dunes sagebrush lizards are not found 

in areas that do not have shinnery oak 

dunes, and major shifts in habitat 

availability would impact the dunes 

sagebrush lizard (Painter et al 1999, p. 

7). Climate change models for some 

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lizard species predict a complete loss of 

habitat by 2050 due to precipitation 

declines (Ballesteros-Barrera et al. 2007, 

p. 736). The limited dispersal ability of 

dunes sagebrush lizards means that the 

species as a whole could be isolated in 

areas with increased desertification and 

shinnery oak loss. The already 

fragmented habitat will limit the ability 

of the dunes sagebrush lizard to respond 

to climate-induced habitat changes. At 

this time, climate change is not 

considered to be the most significant 

threat to the dunes sagebrush lizard 

throughout its range; however, impacts 

from climate change in the future will 

likely exacerbate the ongoing threat of 

habitat loss caused by other factors, as 

discussed above. 

Competition 

The side-blotched lizard (Uta 

stansburiana) is a generalist lizard 

species that is found throughout the 

range of the dunes sagebrush lizard. 

Researchers studying the dunes 

sagebrush lizard have reported that the 

side-blotched lizard is a competitor for 

resources with the dunes sagebrush 

lizard (Sena 1985, p. 13) and has been 

observed directly competing for insect 

prey (Sias and Snell 1996, p. 6). In areas 

where there are large dune blowouts in 

shinnery oak dune complexes, the 

dominant lizard species is the dunes 

sagebrush lizard. As the habitat becomes 

marginal with smaller dune blowouts 

adjacent to shinnery oak flats or 

unsuitable habitat, there are greater 

numbers of side-blotched lizards and 

fewer dunes sagebrush lizards. In areas 

that have more habitat disturbance and 

greater edge effects, there are also more 

side-blotched lizards than dunes 

sagebrush lizards (Painter 2007, p. 2). 

The side-blotched lizard is the most 

abundant lizard found in the same 

habitat as the dunes sagebrush lizard. 

The side-blotched lizard uses more 

open, sandy substrate than the dunes 

sagebrush lizard, which uses the 

vegetative cover provided by shinnery 

oak. The side-blotched lizard also 

spends more time in the open sun and 

more time foraging (Sartotrius et al. 

2002, pp. 1972–1975). As a generalist, 

the side-blotched lizard is not impacted 

by habitat disturbance and alteration in 

the way that dunes sagebrush lizard, a 

habitat specialist, is impacted (Sias and 

Snell 1996, p. 18; Painter et al. 2007, p. 

3). Therefore, the side-blotched lizard 

likely outcompetes the dunes sagebrush 

lizard in these altered habitats. 

Increased temperatures, due to climate 

change, and changes to the vegetative 

community could increase the 

competition between dunes sagebrush 

lizards and side-blotched lizards. 

Summary of Factor E 

We do not know the magnitude or 

imminence of the direct or indirect 

impacts of competition and climate 

change on the status of the species at 

this time. However, we consider 

exposure to oil and gas pollutants to be 

a threat to the species throughout its 

range, both now and continuing into the 

foreseeable future. 

Proposed Listing Determination 

We have carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future threats to the dunes 

sagebrush lizard. The dunes sagebrush 

lizard faces immediate and significant 

threats due to oil and gas activities, and 

herbicide treatments. Habitat loss and 

fragmentation due to oil and gas 

development is a measureable factor 

impacting the species due to the 

removal of shinnery oak and creation of 

roads and pads, pipelines, and power 

lines that create habitat patches and 

increase the proportion of habitat edge 

to habitat interior. In addition, impacts 

that are not easily quantified such as 

climate change, competition, and 

pollution may exacerbate adverse effects 

caused by habitat loss. Cumulative 

threats to the dunes sagebrush lizard are 

not being adequately addressed through 

existing regulatory mechanisms. Oil and 

gas pollutants are a current and ongoing 

threat to the species throughout its 

range. 

The Act defines an endangered 

species as ‘‘any species which is in 

danger of extinction throughout all or a 

significant portion of its range.’’ We find 

that the dunes sagebrush lizard is 

presently in danger of extinction 

throughout its entire range, based on the 

immediacy, severity, and scope of the 

ongoing significant threats to the dunes 

sagebrush lizard, as described above. 

Therefore, on the basis of the best 

available scientific and commercial 

information, we propose to list the 

dunes sagebrush lizard as an 

endangered species in accordance with 

sections 3(6) and 4(a)(1) of the Act. 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is endangered or threatened 

throughout all or a significant portion of 

its range. The dunes sagebrush lizard is 

highly restricted in its range, and the 

threats occur throughout its range. 

Therefore, we assessed the status of the 

species throughout its entire range. The 

threats to the survival of the dunes 

sagebrush lizard occur throughout its 

range and are not restricted to any 

particular portion of that range. 

Accordingly, our assessment and 

proposed determination applies to the 

dunes sagebrush lizard throughout its 

entire range. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened under the Act include 

recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition results in public awareness 

and conservation by Federal, State, 

Tribal, and local agencies; private 

organizations; and individuals. The Act 

encourages cooperation with the States 

and requires that recovery actions be 

carried out for all listed species. The 

protection required by Federal agencies 

and the prohibitions against certain 

activities involving listed species are 

discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Subsection 4(f) of 

the Act requires the Service to develop 

and implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning includes the 

development of a recovery outline 

shortly after a species is listed, 

preparation of a draft and final recovery 

plan, and revisions to the plan as 

significant new information becomes 

available. The recovery outline guides 

the immediate implementation of urgent 

recovery actions and describes the 

process to be used to develop a recovery 

plan. The recovery plan identifies sitespecific management actions that will 

achieve recovery of the species, 

measurable criteria that determine when 

a species may be downlisted or delisted, 

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. Recovery teams 

(comprised of species experts, Federal 

and State agencies, nongovernment 

organizations, and stakeholders) are 

often established to develop recovery 

plans. When completed, the recovery 

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outline, draft recovery plan, and the 

final recovery plan will be available on 

our Web site (http://www.fws.gov/ 

endangered), 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, Tribal and 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private, State, and Tribal lands. 

If this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, under section 6 of the Act, the 

States of New Mexico and Texas would 

be eligible for Federal funds to 

implement management actions that 

promote the protection and recovery of 

the dunes sagebrush lizard. Information 

on our grant programs that are available 

to aid species recovery can be found at: 

http://www.fws.gov/grants. 

Although the dunes sagebrush lizard 

is only proposed for listing under the 

Act at this time, please let us know if 

you are interested in participating in 

recovery efforts for this species. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7(a) of the Act, as amended, 

requires Federal agencies to evaluate 

their actions with respect to any species 

that is proposed or listed as endangered 

or threatened and with respect to its 

critical habitat, if any is designated. 

Regulations implementing this 

interagency cooperation provision of the 

Act are codified at 50 CFR part 402. 

Section 7(a)(4) requires Federal agencies 

to confer with the Service on any action 

that is likely to jeopardize the continued 

existence of a species proposed for 

listing or result in destruction or 

adverse modification of proposed 

critical habitat. We believe the following 

actions may jeopardize this species, and 

therefore we would seek to conference 

with BLM and NRCS on these actions: 

• The lease of land for oil and gas 

drilling, 

• Applications to drill, 

• Applications for infrastructure 

through dunes (including, but not 

limited to pipelines and power lines), 

• OHV activities, 

• Seismic exploration, 

• Continued oil and gas operations 

(release of pollution and routine 

maintenance), 

• Grazing leases, 

• Renewable resource activities, and 

• Chemical and mechanical removal 

of shinnery oak habitat. 

If a species is listed subsequently, 

section 7(a)(2) requires Federal agencies 

to ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may adversely affect a listed 

species or its critical habitat, the 

responsible Federal agency must enter 

into formal consultation with the 

Service. 

For the dunes sagebrush lizard, 

Federal agency actions that may require 

conference or consultation or both, as 

described in the preceding paragraph, 

include the provision of Federal funds 

to State and private entities through 

Federal programs, such as the Service’s 

Landowner Incentive Program, State 

Wildlife Grant Program, and Federal 

Aid in Wildlife Restoration program, as 

well as the various grants administered 

by the Natural Resources Conservation 

Service. Other types of actions that may 

require consultation include BLM 

activities, such as the lease of land for 

oil and gas drilling, applications to drill, 

grazing leases, and removal of shinnery 

oak habitat. Possible measures that 

could be implemented to conserve the 

dunes sagebrush lizard and its habitat 

are: 

• Maintain 500-m (1640-ft) wide 

dispersal corridors in shinnery oak 

dunes for the dunes sagebrush lizards to 

disperse between habitat patches; 

• Discontinue chemical spraying 

within occupied or suitable habitat; 

• Place well pads outside of shinnery 

oak dunes and corridors between dune 

complexes; 

• Manage well density to limit 

development in habitat; 

• Minimize well pad size and carry 

out site reclamation; 

• Develop techniques to recreate 

shinnery oak dunes; 

• Limit OHV use in occupied habitat; 

• Minimize impacts of seismic 

exploration by thumper trucks; 

• Develop a public awareness 

program; 

• Do not place power lines and fences 

through shinnery oak dune complexes; 

• Develop transmission corridors for 

pipelines and power lines; 

• Limit pollution by inspecting 

pipelines and equipment; 

• Develop and implement plans for 

cleaning oil spills; 

• Limit hydrogen sulfide emissions; 

• Maintain wells; and 

• Limit any further infrastructure that 

would remove the shinnery oak dunes. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to endangered species. The prohibitions 

of section 9(a)(2) of the Act, codified at 

50 CFR 17.21 for endangered wildlife, in 

part, make it illegal for any person 

subject to the jurisdiction of the United 

States to take (includes harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or to attempt any of 

these), import, export, ship in interstate 

commerce in the course of commercial 

activity, or sell or offer for sale in 

interstate or foreign commerce any 

listed species. Under the Lacey Act (18 

U.S.C. 42; 16 U.S.C. 3371–3378), it is 

also illegal to possess, sell, deliver, 

carry, transport, or ship any such 

wildlife that has been taken illegally. 

Certain exceptions to the prohibitions 

apply to agents of the Service and State 

conservation agencies. The dunes 

sagebrush lizard is listed as endangered 

by the State of New Mexico, and is 

currently protected under the Wildlife 

Conservation Act of 1978, which 

prohibits take of the species but has no 

protection for habitat (NMDGF 1978, p. 

9). The Act will, therefore, offer 

additional protection to this species. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered and threatened 

wildlife species under certain 

circumstances. Regulations governing 

permits are codified at 50 CFR 17.22 for 

endangered species, and at 17.32 for 

threatened species. With regard to 

endangered wildlife, a permit must be 

issued for the following purposes: for 

scientific purposes, to enhance the 

propagation or survival of the species, 

and for incidental take in connection 

with otherwise lawful activities. We 

anticipate that the only permits that 

would be sought or issued for the dunes 

sagebrush lizard would be in association 

with research and recovery efforts, as 

this species is not common in the 

herpetocultural trade or in the wild. 

Requests for copies of the regulations 

regarding listed species and inquiries 

about prohibitions and permits may be 

addressed to the Field Supervisor at the 

address in the FOR FURTHER INFORMATION

CONTACT section. 

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Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 77815 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of species proposed for listing. 

The following activities could 

potentially result in a violation of 

section 9 of the Act; this list is not 

comprehensive: 

(1) Unauthorized collecting, handling, 

possessing, selling, delivering, carrying, 

or transporting of the species, including 

import or export across State lines and 

international boundaries, except for 

properly documented antique 

specimens of these taxa at least 100 

years old, as defined by section 10(h)(1) 

of the Act; 

(2) Introduction of nonnative species 

that compete with or prey upon the 

dunes sagebrush lizard; and 

(3) The unauthorized release of 

biological control agents that attack any 

life stage of this species. 

Questions regarding whether specific 

activities would constitute a violation of 

section 9 of the Act should be directed 

to the New Mexico Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(i) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features. 

(I) Essential to the conservation of the 

species and 

(II) Which may require special 

management considerations or 

protection; and 

(ii) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition of destruction or adverse 

modification of critical habitat with 

regard to actions carried out, funded, or 

authorized by a Federal agency. Section 

7(a)(2) of the Act requires consultation 

on Federal actions that may affect 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

seeks or requests Federal agency 

funding or authorization for an action 

that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) of the 

Act would apply, but even in the event 

of a destruction or adverse modification 

finding, Federal action agencies and the 

applicant’s obligation is not to restore or 

recover the species, but to implement 

reasonable and prudent alternatives to 

avoid destruction or adverse 

modification of critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical and biological 

features essential to the conservation of 

the species, and be included only if 

those features may require special 

management considerations or 

protection. Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas that provide 

essential life cycle needs of the species 

(areas on which are found the physical 

and biological features (PBFs) laid out 

in the appropriate quantity and spatial 

arrangement for the conservation of the 

species). Under the Act and regulations 

at 50 CFR 424.12, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed only when 

we determine that those areas are 

essential for the conservation of the 

species and that designation limited to 

those areas occupied at the time of 

listing would be inadequate to ensure 

the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

critical habitat designated at a particular 

point in time may not include all of the 

habitat areas that we may later 

determine are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions we implement 

under section 7(a)(1) of the Act. Areas 

that support populations are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

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77816 Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts 

warrants otherwise. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12), require that, to the 

maximum extent prudent and 

determinable, the Secretary designate 

critical habitat at the time the species is 

determined to be endangered or 

threatened. Our regulations (50 CFR 

424.12(a)(1)) state that the designation 

of critical habitat is not prudent when 

one or both of the following situations 

exist: (1) The species is threatened by 

taking or other human activity, and 

identification of critical habitat can be 

expected to increase the degree of threat 

to the species, or (2) such designation of 

critical habitat would not be beneficial 

to the species. 

There is no documentation that the 

dunes sagebrush lizard is threatened by 

collection and, therefore, is unlikely to 

experience increased threats by 

identifying critical habitat. Further, the 

potential benefits of critical habitat to 

the dunes sagebrush lizard include: (1) 

Triggering consultation under section 7 

of the Act, in new areas for actions in 

which there may be a Federal nexus 

where it would not otherwise occur 

because, for example, it is or has 

become unoccupied or the occupancy is 

in question; (2) focusing conservation 

activities on the most essential features 

and areas; (3) providing educational 

benefits to State or county governments 

or private entities; and (4) preventing 

people from causing inadvertent harm 

to the species. Therefore, since we have 

determined that the designation of 

critical habitat will not likely increase 

the degree of threat to the species and 

may provide some measure of benefit, 

we find that designation of critical 

habitat is prudent for dunes sagebrush 

lizard. 

As stated above, section 4(a)(3) of the 

Act requires the designation of critical 

habitat concurrently with the species’ 

listing ‘‘to the maximum extent prudent 

and determinable.’’ Our regulations at 50 

CFR 424.12(a)(2) state that critical 

habitat is not determinable when one or 

both of the following situations exist: 

(i) Information sufficient to perform 

required analyses of the impacts of the 

designation is lacking, or 

(ii) The biological needs of the species 

are not sufficiently well known to 

permit identification of an area as 

critical habitat. 

When critical habitat is not 

determinable, the Act provides for an 

additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We are currently unable to determine 

which areas meet the definition of 

critical habitat because the location and 

distribution of physical and biological 

features that may be considered 

essential to the conservation of the 

species is not sufficiently understood at 

this time. Additional onsite work is 

needed for the purposes of delineating 

critical habitat boundaries and 

providing legal descriptions of those 

areas. Therefore, although we have 

determined that the designation of 

critical habitat is prudent for the dunes 

sagebrush lizard, we find that critical 

habitat for the dunes sagebrush lizard is 

not determinable at this time. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our determination of status for this 

species is based on scientifically sound 

data, assumptions, and analyses. We 

will send peer reviewers copies of this 

proposed rule immediately following 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment, during the public comment 

period, on the specific assumptions and 

conclusions regarding the proposal to 

list dunes sagebrush lizard as 

endangered, and our decision regarding 

critical habitat for these species. 

We will consider all comments and 

information we receive during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests must be received 

within 45 days after the date of 

publication of this proposal in the 

Federal Register. Such requests must be 

made in writing and be addressed to the 

Field Supervisor at the address in the 

FOR FURTHER INFORMATION CONTACT

section. We will schedule public 

hearing on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings, as 

well as how to obtain reasonable 

accommodations, in the Federal 

Register and local newspapers at least 

15 days before the hearing. 

Persons needing reasonable 

accommodations to attend and 

participate in a public hearing should 

contact the New Mexico Ecological 

Services Field Office at 505–761–4718, 

as soon as possible. To allow sufficient 

time to process requests, please call no 

later than one week before the hearing 

date. Information regarding this 

proposed rule is available in alternative 

formats upon request. 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by Office of Management and 

Budget (OMB) under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.), need not 

be prepared in connection with 

regulations adopted under section 

4(a)(1) of the Act. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 77817 

References Cited 

A complete list of all references cited 

in this proposed rule is available on the 

Internet at http://www.regulations.gov 

or upon request from the Field 

Supervisor, New Mexico Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Authors 

The primary authors of this proposed 

rule are the staff members of the New 

Mexico Ecological Services Field Office 

(see FOR FURTHER INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

2. Amend § 17.11(h) by adding an 

entry for ‘‘Lizard, dunes sagebrush’’ in 

an alphabetical order under REPTILES 

to the List of Endangered and 

Threatened Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

*******

REPTILES

* * * * * * * 

Lizard, dunes sagebrush.Sceloporus 

arenicolus.

U.S.A. (NM, TX) ..... Phrynosomatidae .... E .................... NA NA 

* * * * * * * 

* * * * * 

Dated: December 1, 2010. 

Rowan W. Gould, 

Acting Director, Fish and Wildlife Service. 

[FR Doc. 2010–31140 Filed 12–13–10; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2010–0024; MO 

92210–0–0009–B4] 

RIN 1018–AW89 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Mississippi Gopher Frog 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, availability of draft 

economic analysis, and amended 

required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of the draft economic 

analysis (DEA) for the June 3, 2010, 

proposed designation of critical habitat 

for the Mississippi gopher frog (Rana 

sevosa) [= Rana capito sevosa] under 

the Endangered Species Act of 1973, as 

amended (Act). We also announce the 

reopening of the comment period and 

an amended required determinations 

section of the proposal. We are 

reopening the comment period for an 

additional 30 days to allow all 

interested parties an opportunity to 

comment simultaneously on the 

proposed critical habitat designation, 

the associated DEA, and the amended 

required determinations section. 

Comments previously submitted need 

not be resubmitted and will be fully 

considered in preparation of the final 

rule. 

DATES: We will consider public 

comments received on or before January 

13, 2011. Comments must be received 

by 11:59 p.m. Eastern Time on the 

closing date. Any comments that we 

receive after the closing date may not be 

considered in the final decision on this 

action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS–R4–ES–2010–0024. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R4– 

ES–2010–0024; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ricks, Field Supervisor, 

Mississippi Fish and Wildlife Office, 

6578 Dogwood View Parkway, Jackson, 

MS 39213; by telephone (601–321– 

1122); or by facsimile (601–965–4340). 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written comments and 

information during this reopened 

comment period on our proposed 

designation of critical habitat for the 

Mississippi gopher frog that was 

published in the Federal Register on 

June 3, 2010 (75 FR 31387), the DEA of 

the proposed designation of critical 

habitat for the Mississippi gopher frog, 

and the amended required 

determinations provided in this 

document. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate areas as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the Mississippi 

gopher frog from human activity, the 

degree of which can be expected to 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS