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

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> <DEPDOC>[Docket No. FWS-R2-ES-2022-0162; FXES1111090FEDR-245-FF09E21000]</DEPDOC> <RIN>RIN 1018-BG22</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Dunes Sagebrush Lizard</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the dunes sagebrush lizard ( <E T="03">Sceloporus arenicolus</E> ), a lizard species found only in southeastern New Mexico and west Texas. This rule extends the protections of the Act to this species. Because we have concluded that the designation of critical habitat for the dunes sagebrush lizard is prudent but not determinable at this time, we will consider critical habitat for the species in a separate, future rulemaking. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective June 20, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> This final rule, supporting materials we used in preparing this rule (such as the species status assessment report), and comments and materials we received on the July 3, 2023, proposed rule are available on the internet at <E T="03">https://www.regulations.gov under</E> Docket No. FWS-R2-ES-2022-0162. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Shawn Sartorius, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Executive Summary</HD> <E T="03">Why we need to publish a rule.</E> Under the Act (16 U.S.C. 1531 <E T="03">et seq.</E> ), a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the dunes sagebrush lizard meets the Act's definition of an endangered species; therefore, we are listing it as such. As explained later in this document, because the designation of critical habitat for the dunes sagebrush lizard is prudent but not determinable at this time, we will consider critical habitat for the species in a separate, future rulemaking. Listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 <E T="03">et seq.</E> ). <E T="03">What this document does.</E> This rule lists the dunes sagebrush lizard as an endangered species under the Act. <E T="03">The basis for our action.</E> Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the dunes sagebrush lizard is endangered due to the following threats: (1) Habitat loss, fragmentation, and degradation from development by the oil and gas and the frac sand (high-purity quartz sand that is suspended in fluid and injected into wells to blast and hold open cracks in the shale rock layer during the fracking process) mining industries; and (2) climate change and climate conditions, both resulting in hotter, more arid conditions with an increased frequency and greater intensity of drought throughout the species' geographic range. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, to designate critical habitat concurrent with listing. As explained later in this rule, we find that the designation of critical habitat for the dunes sagebrush lizard is not determinable at this time. The Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)). <HD SOURCE="HD1">Previous Federal Actions</HD> Please refer to the proposed listing rule (88 FR 42661; July 3, 2023) for a detailed description of previous Federal actions concerning the dunes sagebrush lizard. <HD SOURCE="HD1">Peer Review</HD> A species status assessment (SSA) team prepared an SSA report for the dunes sagebrush lizard. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the <E T="04">Federal Register</E> on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing actions under the Act, we solicited independent scientific review of the information contained in the dunes sagebrush lizard SSA report. The peer reviews can be found at <E T="03">https://www.regulations.gov.</E> In preparing the July 3, 2023, proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the proposed rule (88 FR 42661 at 42663-42664; July 3, 2023). <HD SOURCE="HD1">Summary of Changes From the Proposed Rule</HD> Based upon our review of the public comments, State agency comments, peer review comments, and relevant information that became available since the July 3, 2023, proposed rule published, we updated information in our SSA report, including: • Adding references on the impact of frac sand mining on groundwater (USFWS 2024, pp. 70-80). • Adding information and references on human population growth in the Permian Basin, which is likely to exacerbate the threats of habitat loss and fragmentation (USFWS 2024, p. 127). • Adding information (Chan 2023, pers. comm.) regarding estimates of genetic effective population size for dunes sagebrush lizard populations (USFWS 2024, pp. 40-41, 106-107). • Adding information on the effects of climate change on future groundwater levels (USFWS 2024, p. 75). • Updating enrollment numbers in existing conservation agreements (USFWS 2024, p. 84). We also made changes as appropriate in this final rule. In addition to minor clarifying edits, this determination differs from the proposal in the following ways: (1) We received a comment regarding the impact of fugitive road dust on the dunes sagebrush lizard and its habitat. This comment indicated that the impact of fugitive road dust on the species is uncertain. After reconsidering the impact of fugitive road dust on the species, we decided to remove the statement referencing road dust from the explanation of the listing decision presented below. This change does not impact the final conclusion that the dunes sagebrush lizard is in danger of extinction throughout all of its range ( <E T="03">i.e.,</E> that it meets the Act's definition of an endangered species). (2) We updated the language in the explanation of the listing decision and SSA report to address confusion regarding the terms “well density” and “well pad density.” These changes demonstrate that our focus is on well pads, and the associated construction of road infrastructure, as they are central components of ground disturbance, and therefore species impacts, in oil and gas drilling and extraction. <HD SOURCE="HD1">Summary of Comments and Recommendations</HD> In the proposed rule published on July 3, 2023 (88 FR 42661), we requested that all interested parties submit written comments on the proposal by September 1, 2023. Following requests from several members of the public, on August 30, 2023, we published a document in the <E T="04">Federal Register</E> (88 FR 59837) extending the public comment period on our July 3, 2023, proposal to October 2, 2023. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Albuquerque Journal, Midland Reporter, and Carlsbad Argus. We held a public informational session and a public hearing on July 31, 2023. All substantive information we received during the comment periods has either been incorporated directly into this final determination or is addressed below. <HD SOURCE="HD2">Federal Agency Comments</HD> <E T="03">(1) Comment:</E> One Federal agency, one State agency, and several public commenters suggested that the Service list the dunes sagebrush lizard ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 159k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━