On May 20, 2024, the U.S. Fish and Wildlife Service (FWS) listed the dunes sagebrush lizard as endangered under the Endangered Species Act (ESA). The dunes sagebrush lizard exists solely in shinnery oak duneland complexes in the Permian Basin, both in Texas and New Mexico. The listing took effect on June 20, 2024.
FWS has considered dunes sagebrush lizard to be a species of concern for decades. FWS first identified the dunes sagebrush lizard, then known as the "sand dune lizard," as a candidate for listing in 1982. The species remained a candidate species when FWS proposed to list it in 2010. In 2012, however, FWS withdrew its proposed listing rule after concluding that conservation efforts addressed and alleviated threats to the species adequately for it to continue to be viable into the future. FWS again proposed to list the species in July 2023, relying on a species status assessment it finalized earlier in 2023.
FWS based its decision to list the dunes sagebrush lizard as endangered principally on past and projected future impacts to the species from oil and gas development and frac sands mining. Specifically, FWS based its endangered listing on threats to the dunes sagebrush lizard from: (1) habitat loss, fragmentation, and degradation; 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.
Notably, FWS has declined to designate critical habitat with the listing rule. FWS stated that the designation of critical habitat is not determinable at this time because FWS is still in the process of assessing the information needed to analyze the impacts of critical habitat.
The Effect of Listing on Land Users
Listing wildlife as endangered has two effects on land users.
First, the ESA prohibits take of endangered wildlife. Second, a
federal agency must consult with FWS before issuing a permit or
land use authorization that may affect an endangered species.
Incidental Take Prohibition
The ESA prohibits take of endangered wildlife, which is defined to
include harming, harassing, and killing endangered wildlife, among
other actions. The ESA's prohibition on take includes both
intentional take and take that occurs unintentionally as the result
of otherwise lawful activities, such as energy development
("incidental take").
The final rule includes the following non-exhaustive list of actions that may result in prohibited take of dunes sagebrush lizard:
- Destruction, alteration, or removal of shinnery oak duneland and shrubland vegetation;
- Degradation, removal, or fragmentation of shinnery oak duneland and shrubland formations and ecosystems;
- Disruption of water tables in dunes sagebrush lizard habitat;
- Introduction of nonnative species that compete with or prey upon the dunes sagebrush lizard;
- Unauthorized release of biological control agents that attack any life stage of the dunes sagebrush lizard or that degrade or alter its habitat; and
- Herbicide or pesticide applications in shinnery oak duneland and shrubland vegetation and ecosystems.
To engage in land use activities that will result in incidental take of endangered wildlife on private lands, land users must obtain a permit from FWS. To obtain a permit, the land user either must have entered into a candidate conservation with assurances (CCAA) with FWS prior to listing or must develop an approved habitat conservation plan (HCP). Several CCAAs exist in New Mexico and Texas; however, land users cannot enroll in these CCAAs because the listing decision is in effect. Now, a private land user will need to enter into an HCP to secure an incidental take permit. To date, no programmatic HCPs are available for land users.
Section 7 Consultation
In addition to prohibiting take of endangered species, the ESA
requires federal agencies to consult with FWS to ensure their
actions do not jeopardize the continued existence of endangered
species, in a process known as "section 7 consultation."
Section 7 consultation can lead to delay and additional
conservation measures. With respect to the dunes sagebrush lizard,
the Bureau of Land Management (BLM) must consult with FWS before
issuing leases, permits, and rights-of-way for energy and other
land uses in southeast New Mexico.
In New Mexico, CEHMM administers a Candidate Conservation Agreement (CCA) on federal lands. Participants who enrolled in this CCA prior to the effective date of the listing will enjoy a streamlined process for section 7 consultation and a high degree of certainty that FWS will not require additional conservation measures.
Critical Habitat Designation
In the final rule, FWS stated it plans to publish a proposed rule
to designate critical habitat "in the near future." Land
users will have an opportunity to comment on the proposed critical
habitat designation before FWS finalizes it.
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