Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Kern Canyon Slender Salamander and Endangered Species Status for the Relictual Slender Salamander; Designation of Critical Habitat

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; revisions and reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are reopening the comment period on our October 18, 2022, proposed rule to list the Kern Canyon slender salamander ( Batrachoseps simatus) and the relictual slender salamander ( Batrachoseps relictus) under the Endangered Species Act of 1973, as amended (Act), and to designate critical habitat. This action will allow all interested parties an additional opportunity to comment on the October 18, 2022, proposed rule, as well as the opportunity to comment on the new areas we are considering for relictual slender salamander critical habitat, small changes to Kern Canyon slender salamander critical habitat, and our updates to the physical or biological features for the Kern Canyon slender salamander, in response to previously submitted public comments. Comments previously submitted need not be resubmitted as they are already incorporated into the public record and will be fully considered in the final rule.

DATES:

The comment period on the proposed rule that published October 18, 2022 (87 FR 63150), is reopened. We will accept comments received or postmarked on or before December 6, 2023.

ADDRESSES:

You may submit comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS–R8–ES–2022–0081, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment.”

(2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R8–ES–2022–0081, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041–3803.

We request that you send comments only by the methods described above. We will post all comments on https://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

Availability of supporting materials: This document and supporting materials (including the species status assessment report, the coordinates or plot points or both from which the critical habitat maps are generated, comments and information received on the proposed rule, the updated economic analysis, and references cited are available at https://www.regulations.gov at Docket No FWS–R8–ES–2022–0081.

FOR FURTHER INFORMATION CONTACT:

Michael Fris, Field Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA 95825; telephone 916–414–6700. 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. In compliance with the Providing Accountability Through Transparency Act of 2023, please see Docket No. FWS–R8–ES–2022–0081 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Information Requested

We will accept written comments and information during this reopened comment period on our proposed rule to list the Kern Canyon slender salamander and the relictual slender salamander and designate critical habitat for both species. We will consider information and recommendations from all interested parties. We intend that any final action resulting from the proposal will be based on the best scientific data available. Our final determination will take into consideration all comments and any additional information we receive during the reopened comment period on the proposed rule.

Because we will consider all comments and information received during both comment periods, our final determination may differ from our October 18, 2022 (87 FR 63150), proposed rule. Based on the new information we receive (and any comments on that new information), we may conclude that the Kern Canyon slender salamander is endangered instead of threatened, that the relictual slender salamander is threatened instead of endangered, or we may conclude that either or both species do not warrant listing as either endangered species or threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, and may exclude some additional areas if we find the benefits of exclusion outweigh the benefits of inclusion and will not lead to the extinction of the species.

In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions in the proposed 4(d) rule for the Kern Canyon slender salamander if we conclude it is appropriate in light of comments and new information received. For example, we may expand the prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species. In our final rule, we will clearly explain our rationale and the basis for our final decision, including why we made changes, if any, that differ from this proposal.

If you already submitted comments or information on the October 18, 2022, proposed rule, please do not resubmit them. Any such comments are incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them in the preparation of our final determination.

Comments should be as specific as possible. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you assert. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support our determination, as section 4(b)(2) of the Act directs that designations of critical habitat be made “on the basis of the best scientific data available.”

We request that you send comments and materials only by one of the methods listed in ADDRESSES . If you submit information via https://www.regulations.gov, your entire submission—including your personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on https://www.regulations.gov at Docket No. FWS–R8–ES–2022–0081.

Background

On October 18, 2022, we published a proposed rule in the Federal Register (87 FR 63150) to list the Kern Canyon slender salamander as a threatened species with a critical habitat designation of approximately 2,051 acres (ac) (830 hectares (ha)), and to list the relictual slender salamander as an endangered species with a critical habitat designation of approximately 2,685 ac (1,087 ha). Both species are found in the southern Sierra Nevada mountains.

During the comment period on the October 18, 2022, proposed rule, species experts submitted a comment letter stating that they had discovered several new locations where the relictual slender salamander occurs. In their comment letter, they stated that they were concerned about sharing these new locations due to the potential for increased foot traffic and possible disturbance of sensitive habitat for the species. After the comment period closed, we met with the experts to discuss the risks of sharing the new locations and the lead researcher then subsequently provided us the new location data in a way that was consistent with our critical habitat mapping methods but does not reveal the specific site locations that may be sensitive to trampling and disturbance.

Based on these new data for the relictual slender salamander, we have expanded Unit 2 and Unit 3 within the proposed designation to include the new locations that contain the physical or biological features essential to the conservation of the species. We also added a new unit to proposed critical habitat to include new locations in the Walker Basin Drainage that also contain the physical or biological features essential to the conservation of the species (Unit 4). We are adding 2,257 ac (913 ha) to critical habitat for a new total of 4,942 ac (2,000 ha) proposed for designation for the relictual slender salamander. In addition, the experts noted an error in the mapping of Kern Canyon slender salamander critical habitat and identified one additional location within proposed Unit 3 where the Kern Canyon slender salamander occurs and which contains the physical or biological features essential to the conservation of the species. We have proposed to modify Unit 3 of the proposed designation for the Kern Canyon slender salamander to incorporate these changes. In total, these changes result in an additional 6 ac (2 ha) of critical habitat for the Kern Canyon slender salamander.

The experts also provided information that the Kern Canyon slender salamander makes use of a broader range of habitats than was stated in the proposed rule. They stated that the Kern Canyon slender salamander has been frequently found on open, rocky slopes adjacent to streams. We therefore updated our physical or biological features for the Kern Canyon slender salamander in order to reflect this new information.

Because we received the new location data outside the public comment period, we now reopen the comment period to allow for the public to review and comment on the new information and the revisions to the proposed critical habitat designation. Below, we provide a summary of that information. We provide a new description of the physical or biological features for the two species that have been updated in response to the new information. We also provide the new unit descriptions for the units that have changed and the units that are being added.

Physical or Biological Features Essential to the Conservation of the Species

Space for Individual and Population Growth and for Normal Behavior

The Kern Canyon slender salamander and the relictual slender salamander are endemic to, and occur within or immediately adjacent to, humid habitat associated with seeps, springs, and streams in the Greenhorn and Piute Mountains in the southern Sierra Nevada in Kern County. The Kern Canyon slender salamander's habitat is constrained to riparian zones adjacent to seeps, springs, and streams, and open, rocky slopes adjacent to streamside habitats that are likely being wetted by cryptic seeps. These seeps may not be readily apparent, but can be identified by the presence of moisture-dependent vegetation (Evelyn 2022, pers. comm.; Jockusch 2022, pers. comm.). The relictual slender salamander's habitat is constrained to riparian zones adjacent to seeps, springs, and streams due to their narrow physiological tolerances. Habitat within larger fast-moving bodies of water, such as the Kern River, is not suitable habitat and does not contain the physical or biological features that support the Kern Canyon slender salamander or relictual slender salamander.

Primary habitat for the Kern Canyon slender salamander is composed of wet stream and seep margins within rocky, narrow canyons supporting chapparal shrubs, sycamore ( Platanus racemosa), California buckeye ( Aesculus californica), willow ( Salix spp.), Fremont cottonwood ( Populus fremontii), interior live oak ( Quercus wislizeni), canyon live oaks ( Quercus chrysolepis), and foothill pine ( Pinus sabiniana). Historically, the Kern Canyon slender salamander was found on exposed hillsides and open grasslands, but the primary habitat of the species is now limited to riparian habitats or other moist microsites (Lannoo 2005, p. 692; Jockusch 2021b, pers. comm.). However, the species is still found in open, rocky habitat within moist microsites that are likely being wetted by cryptic seeps (Evelyn 2022, pers. comm.; Jockusch 2022, pers. comm.). These seeps may not be readily apparent but can be identified by the presence of moisture-dependent vegetation.

Primary habitat for the relictual slender salamander is composed of seeps, perennial springs, and streams in rocky habitat supporting limited tree cover of oaks ( Quercus spp.), buckeyes ( Aesculus spp.), sycamores ( Platanus racemosa ), pines ( Pinus spp.), and firs ( Abies spp.).

We do not know how much suitable habitat and habitat connectivity is required to sustain a viable population of either the Kern Canyon slender salamander or the relictual slender salamander. There may be distinct, non-interbreeding populations or there may be some level of dispersal between localities associated with the same streams or different aquatic features providing at least a small level of connectivity between individual populations. The minimum number of viable populations necessary to sustain the salamanders is unknown. The distribution and quantity of available suitable habitat across the range necessary to support populations of either the Kern Canyon slender salamander or the relictual slender salamander are unknown.

While the amount of habitat necessary to support Kern Canyon slender salamander and relictual slender salamander individual and population growth and normal behavior is unknown, preservation of these features is essential for the species.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

The diets of the Kern Canyon slender salamander and the relictual slender salamander are assumed to be similar to other Batrachoseps species such as the California slender salamander and the Pacific slender salamander, which prey upon small invertebrates, earthworms, and slugs (Cunningham 1960, p. 98; Adams 1968, p. 171; Stebbins and McGinnis 2012, p. 127). The prey-related requirements (abundance, diversity, range, etc.) to sustain a viable population of either species is unknown.

Water is essential for survival of the Kern Canyon slender salamander and the relictual slender salamander. We have no specific information on the amount of water they require; however, both species are restricted to patches of humid habitat near sources of water such as small seeps, springs, and streams, even if the water source is not readily apparent. The relictual slender salamander has a closer association with water than other species of terrestrial salamanders as relictual slender salamanders have been found submerged in water and under cover objects with water beneath them. During times of drought, water sources may become scarce, and associated riparian areas may become hot and dry. The relictual slender salamander and the Kern Canyon slender salamander may need to expend more energy and time to search for new water sources and humid habitat or may restrict surface activity and foraging time to seek shelter in subterranean refugia to avoid desiccation during times of drought.

Summary of Essential Physical or Biological Features for the Kern Canyon Slender Salamander

We derive the specific physical or biological features essential to the conservation of the Kern Canyon slender salamander from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2022, entire; available on https://www.regulations.gov under Docket No. FWS–R8–ES–2022–0081). We have determined that the following physical or biological features are essential to the conservation of the Kern Canyon slender salamander:

(1) Aquatic habitat consisting of seeps, springs, and streams.

(2) Riparian habitat consisting of terrestrial areas adjacent to seeps, springs, and streams that contain:

a. Sufficient refugia consisting of woody debris, leaf litter, and rocks with abundant interstitial spaces to facilitate safe resting, foraging, and movement;

b. Suitable prey to allow for survival, growth, and reproduction; and

c. Riparian vegetation that provides shade cover contributing to cool and moist surface conditions for maintaining homeostasis, foraging opportunities, and physical structure for predator avoidance.

(3) Open, rocky slopes that are likely being wetted by cryptic seeps due to the presence of moisture-dependent vegetation. These slopes should be adjacent to streamside habitat and contain:

a. Sufficient refugia consisting of debris, vegetation, and rocks with abundant interstitial spaces to facilitate safe resting, foraging, and movement;

b. Suitable prey to allow for survival, growth, and reproduction; and

c. Boulders and rocks that provide shade cover contributing to cool and moist surface conditions for maintaining homeostasis, foraging opportunities, and physical structure for predator avoidance.

(4) Corridors of aquatic habitat, riparian habitat, or open, rocky slopes with moisture-dependent vegetation that provide connectivity between patches of occupied habitat to allow for movement of individuals.

Summary of Essential Physical or Biological Features for the Relictual Slender Salamander

We derive the specific physical or biological features essential to the conservation of the relictual slender salamander from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2022, entire; available on https://www.regulations.gov under Docket No. FWS–R8–ES–2022–0081). We have determined that the following physical or biological features are essential to the conservation of the relictual slender salamander:

(1) Aquatic habitat consisting of seeps, springs, and streams.

(2) Riparian habitat consisting of terrestrial areas adjacent to seeps, springs, and streams that contain:

a. Sufficient refugia consisting of woody debris, leaf litter, and rocks with abundant interstitial spaces to facilitate safe resting, foraging, and movement;

b. Suitable prey to allow for survival, growth, and reproduction; and

c. Riparian vegetation that provides shade cover contributing to cool and moist surface conditions for maintaining homeostasis, foraging opportunities, and physical structure for predator avoidance.

(3) Corridors of aquatic habitat or riparian habitat that provide connectivity between patches of occupied habitat to allow for movement of individuals.

Proposed Critical Habitat Designation for the Kern Canyon Slender Salamander

We are proposing to designate four units as critical habitat for the Kern Canyon slender salamander, for a total of approximately 2,057 ac (833 ha). The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Kern Canyon slender salamander. The areas we propose as critical habitat are: (1) Bodfish Creek, (2) Erskine Creek, (3) Kern Canyon Tributaries, and (4) Kern Canyon Tributaries and Connecting Creeks. Table 1 shows the proposed critical habitat units and the approximate area of each unit. Unit 3 overlaps with proposed critical habitat for the relictual slender salamander.

For the Kern Canyon slender salamander, the three occupied units contain all of the identified physical or biological features and support multiple life-history processes, and the one unoccupied unit contains only some of the physical or biological features necessary to support the Kern Canyon slender salamander's particular use of that habitat. The unoccupied unit has aquatic habitat containing seeps, springs, and streams that support the life-history needs of the species.

Below we provide the description of the unit that has been updated since the proposed rule.

Unit 3: Kern Canyon Tributaries

We expanded this unit to include additional habitat occupied by the Kern Canyon slender salamander that contains the physical or biological features essential to the conservation of the species. We also removed one occurrence mapped in error; the total change is 6 ac (2 ha) added to the unit. In total, this unit encompasses 1,415 ac (573 ha) within Kern County in Sequoia National Forest in the Kern Canyon. This unit includes segments of streams and small tributaries that feed into the Kern River and associated riparian habitat on the south side of the Kern Canyon. Small streams within steep ravines and narrow canyons provide habitat for the Kern Canyon slender salamander within this unit. The mainstem of the Kern River is not considered to be habitat for the Kern Canyon slender salamander within this unit. Some of the habitat within this unit is fragmented by highway California State Route 178, single lane roads, and recreational development. The majority of habitat in this unit is federally owned by the U.S. Forest Service (USFS). General land use activities on Federal lands within the unit include forest management (for example, fuels reduction, hazard tree management, forest restoration, prescribed fire), grazing, highway maintenance, and recreational development. Smaller tracts of habitat are owned by private entities and contain a small amount of residential and recreational development. Wildfire and climate change are the primary ongoing threats to habitat within this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with California State Route 178 and other roads, forest management, recreational development, residential development, and grazing. This unit includes all the physical or biological features. This unit is considered occupied.

Proposed Critical Habitat Designation for the Relictual Slender Salamander

We are proposing to designate four units as critical habitat for the relictual slender salamander, for a total of approximately 4,942 ac (2,000 ha). The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the relictual slender salamander. The four areas we propose as critical habitat are: (1) Kern Canyon Tributaries, (2) Lucas Creek, (3) Mill Creek and Flying Dutchman Creek, and (4) Walker Basin Drainage. Table 2 shows the proposed critical habitat units and the approximate area of each unit. Unit 1 overlaps with proposed critical habitat for the Kern Canyon slender salamander.

For the relictual slender salamander, the three occupied units contain all of the identified physical or biological features and support multiple life-history processes, and the one unoccupied unit contains only some of the physical or biological features necessary to support the relictual slender salamander's particular use of that habitat. The unoccupied unit has aquatic habitat containing seeps, springs, and streams that support the life-history needs of the species.

We present brief descriptions of all changed and new units, and reasons why they meet the definition of critical habitat for the relictual slender salamander, below.

Unit 2: Lucas Creek

We have expanded this unit to include an additional 372 ac (151 ha) to incorporate new occurrences of the species; these new areas contain the physical or biological features essential to the conservation of the species. In total, this unit encompasses 1,135 ac (460 ha) within Kern County to the south of the Kern Canyon in Sequoia National Forest. This unit extends south from the Kern Canyon along Lucas Creek and unnamed tributaries to Lucas Creek on Breckenridge Mountain. Land within this unit is largely undeveloped and only sparsely fragmented by single-lane roads, recreational development, and small parcels that contain residential development. Most of the habitat in this unit is federally owned by the USFS. General land use activities on Federal lands within the unit include forest management (for example, fuels reduction, timber harvest, hazard tree management, forest restoration, prescribed fire), grazing, road maintenance, and recreational development. Wildfire and climate change are the primary ongoing threats to the habitat in this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, roads, recreational development, residential development, and grazing. This unit includes all the physical or biological features and is considered occupied.

Unit 3: Mill Creek and Flying Dutchman Creek

We have expanded this unit to include an additional 1,452 ac (588 ha) to incorporate new occurrences of the species; these new areas contain the physical or biological features essential to the conservation of the species. In total, this unit encompasses 2,651 ac (1,073 ha) within Kern County to the south of the Kern Canyon primarily within Sequoia National Forest. This unit extends south from the Kern Canyon along Mill Creek and unnamed tributaries to Mill Creek on Breckenridge Mountain. The unit also includes habitat associated with Flying Dutchman Creek and unnamed tributaries to Flying Dutchman Creek on Breckenridge Mountain. Land within this unit is largely undeveloped and only sparsely fragmented by single-lane roads and some recreational development. The majority of habitat in this unit is federally owned by the USFS and the Bureau of Land Management (BLM), and a few tracts of habitat are owned by private entities. General land use activities on Federal lands within this unit include forest management (for example, timber harvest, fuels reduction, hazard tree management, forest restoration, prescribed fire), grazing, road maintenance, and recreational development. Wildfire and climate change are the primary ongoing threats to the habitat in this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, roads, recreational development, and grazing. This unit includes all the physical or biological features and is considered occupied.

Unit 4: Walker Basin Drainage

This unit encompasses 433 ac (175 ha) within Kern County on the eastern slope of Breckenridge Mountain primarily within Sequoia National Forest. This unit extends along four unnamed tributaries within the Walker Basin drainage. Land within this unit is largely undeveloped and only sparsely fragmented by recreational development. The majority of habitat in this unit is federally owned by the USFS, and a small area of habitat is privately owned. General land use activities on Federal lands within this unit include forest management (for example, timber harvest, fuels reduction, hazard tree management, forest restoration, prescribed fire), grazing, and recreational development. Wildfire and climate change are the primary ongoing threats to the habitat in this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, recreational development, and grazing. This unit includes all the physical or biological features and is considered occupied.

Authors

The primary authors of this document are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Sacramento Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose further to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 87 FR 63150 (October 18, 2022) as set forth below:

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

2. Further amend § 17.95(d), as proposed to be amended at 87 FR 63150, by:

a. In the entry for “Kern Canyon Slender Salamander ( Batrachoseps simatus)”, revising paragraphs (2), (5), and (8); and

b. In the entry for “Relictual Slender Salamander ( Batrachoseps relictus)”, revising paragraphs (5), (7), and (8) and adding paragraph (9).

The revisions and additions read as follows: