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Proposed Rule2022-21661

Endangered and Threatened Wildlife and Plants; 12-Month Finding for the Kern Plateau Salamander; 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

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Published

October 18, 2022

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

We, the U.S. Fish and Wildlife Service (Service), announce 12- month findings on a petition to list the Kern Plateau salamander (Batrachoseps robustus), the Kern Canyon slender salamander (Batrachoseps simatus), and the relictual slender salamander (Batrachoseps relictus), three salamander species from the southern Sierra Nevada Mountains in California, under the Endangered Species Act of 1973, as amended (Act). We find that listing the Kern Canyon slender salamander and the relictual slender salamander is warranted. Accordingly, we propose to list the Kern Canyon slender salamander as a threatened species with a rule issued under section 4(d) of the Act ("4(d) rule"), and we propose to list the relictual slender salamander as an endangered species. We also propose to designate critical habitat under the Act for both of these species in Kern County, California. For the Kern Canyon slender salamander, approximately 2,051 acres (ac) (830 hectares (ha)) fall within the boundaries of the proposed critical habitat designation, and for the relictual slender salamander, approximately 2,685 ac (1,087 ha) fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis (DEA) of the proposed designations of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander. After a thorough review of the best available scientific and commercial information, we find that it is not warranted at this time to list the Kern Plateau salamander. We ask the public to submit to us at any time new information relevant to the status of the Kern Plateau salamander or its habitat.

Full Text

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<title>Federal Register, Volume 87 Issue 200 (Tuesday, October 18, 2022)</title>
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[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Proposed Rules]
[Pages 63150-63199]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21661]

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Vol. 87

Tuesday,

No. 200

October 18, 2022

Part II

Department of The Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 12-Month Finding for the
Kern Plateau Salamander; 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; Proposed Rule

Federal Register / Vol. 87 , No. 200 / Tuesday, October 18, 2022 /
Proposed Rules

[[Page 63150]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2022-0081; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF83

Endangered and Threatened Wildlife and Plants; 12-Month Finding
for the Kern Plateau Salamander; 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; announcement of 12-month findings.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 12-
month findings on a petition to list the Kern Plateau salamander
(Batrachoseps robustus), the Kern Canyon slender salamander
(Batrachoseps simatus), and the relictual slender salamander
(Batrachoseps relictus), three salamander species from the southern
Sierra Nevada Mountains in California, under the Endangered Species Act
of 1973, as amended (Act). We find that listing the Kern Canyon slender
salamander and the relictual slender salamander is warranted.
Accordingly, we propose to list the Kern Canyon slender salamander as a
threatened species with a rule issued under section 4(d) of the Act
(``4(d) rule''), and we propose to list the relictual slender
salamander as an endangered species. We also propose to designate
critical habitat under the Act for both of these species in Kern
County, California. For the Kern Canyon slender salamander,
approximately 2,051 acres (ac) (830 hectares (ha)) fall within the
boundaries of the proposed critical habitat designation, and for the
relictual slender salamander, approximately 2,685 ac (1,087 ha) fall
within the boundaries of the proposed critical habitat designation. We
also announce the availability of a draft economic analysis (DEA) of
the proposed designations of critical habitat for the Kern Canyon
slender salamander and the relictual slender salamander. After a
thorough review of the best available scientific and commercial
information, we find that it is not warranted at this time to list the
Kern Plateau salamander. We ask the public to submit to us at any time
new information relevant to the status of the Kern Plateau salamander
or its habitat.

DATES: For the proposed rule to list the Kern Canyon slender salamander
and the relictual slender salamander and designate critical habitat for
these species and for the draft economic analysis for this proposed
rulemaking action, we will accept comments received or postmarked on or
before December 19, 2022. Comments submitted electronically using the
Federal eRulemaking Portal (see ADDRESSES, below) must be received by
11:59 p.m. eastern time on the closing date. We must receive requests
for a public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by December 2, 2022.
Petition finding for the Kern Plateau salamander: For the Kern
Plateau salamander, the finding in this document was made on October
18, 2022.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the proposed critical
habitat designation, the coordinates or plot points or both from which
the maps are generated are included in the decision file for this
critical habitat designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-2022-0081. Additional
supporting information that we developed for this proposed critical
habitat designation, including a draft economic analysis, is also
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

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.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, 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 endangered in 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 Kern
Canyon slender salamander meets the definition of a threatened species
and that the relictual slender salamander meets the definition of an
endangered species; therefore, we are proposing to list them as such
and proposing a designation of their critical habitat. Both listing a
species as an endangered or threatened species and making a critical
habitat determination can be completed only by issuing a rule through
the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et
seq.).
What this document does. We find that listing the Kern Plateau
salamander as an endangered or threatened species is not warranted. We
propose to list the Kern Canyon slender salamander as a threatened
species and the relictual slender salamander as an endangered species,
and we propose the designation of critical habitat for these two
species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
We have determined that the Kern Canyon slender salamander is
facing threats due to grazing, recreation, fire,

[[Page 63151]]

and climate change, and that these threats will increase such that the
species is likely to become endangered in the foreseeable future;
therefore, we are proposing to list it as a threatened species. We have
determined that the relictual slender salamander is facing threats from
roads, grazing, fire, timber harvest, and hazard tree removal that put
the species in danger of extinction throughout all of its range. The
relictual slender salamander exists in a very narrow area in a limited
ecological setting, and a single catastrophic event could result in
extinction of the species. Therefore, we are proposing to list it as an
endangered species.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, 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 protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.

Information Requested

For the Kern Plateau salamander, we ask the public to submit to us
at any time new information relevant to the species' status or its
habitat.
For the Kern Canyon slender salamander and the relictual slender
salamander, 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 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 species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns,
including the locations of any additional populations of these species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, their
habitats, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status of these species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the Kern Canyon slender salamander and
that we can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
we should consider any additional exceptions from the prohibitions in
the 4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information regarding the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species; or
(b) Such designation of critical habitat would not be beneficial to
the species. In determining whether a designation would not be
beneficial, the factors the Services may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species, or whether any areas meet the definition of
``critical habitat.''
(7) Specific information on:
(a) The amount and distribution of Kern Canyon slender salamander
and relictual slender salamander habitat;
(b) Any additional areas occurring within the range of the species
in Kern County that should be included in the designation because they
(i) are occupied at the time of listing and contain the physical or
biological features that are essential to the conservation of the
species and that may require special management considerations, or (ii)
are unoccupied at the time of listing and are essential for the
conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any areas,
please provide information supporting a benefit of exclusion.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
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 include.
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 a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the

[[Page 63152]]

basis of the best scientific and commercial data available, and section
4(b)(2) of the Act directs that the Secretary shall designate critical
habitat on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. 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 areas if we find the benefits of exclusion outweigh
the benefits of inclusion and exclusion will not result in 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.

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).

List of Acronyms and Abbreviations

We use many acronyms and abbreviations in this rule. For the
convenience of the reader, we define some of them here:

ac = acres
BLM = Bureau of Land Management
CAL FIRE = California Department of Forestry and Fire Protection
CESA = California Endangered Species Act
cm = centimeters
CNDDB = California Natural Diversity Database
ft = feet
ha = hectares
in = inches
km = kilometers
IPCC = Intergovernmental Panel on Climate Change
m = meters
mi = miles
OHV = off-highway vehicle
RCP = Representative Concentration Pathways
SSA = Species Status Assessment
USFS = U.S. Forest Service

Previous Federal Actions

On July 11, 2012, the Center for Biological Diversity (CBD 2012,
entire) submitted a petition to list 53 species of reptiles and
amphibians including the relictual slender salamander (Batrachoseps
relictus), Kern Canyon slender salamander (Batrachoseps simatus), and
Kern Plateau salamander (Batrachoseps robustus) as threatened or
endangered species under the Act. On July 1, 2015, we published a 90-
day finding that the petition presented substantial scientific and
commercial information that the listing of the relictual slender
salamander and the Kern Canyon slender salamander may be warranted (80
FR 37568). On September 18, 2015, we published a 90-day finding that
the petition presented substantial scientific and commercial
information that the listing of the Kern Plateau salamander may be
warranted (80 FR 56423).

Supporting Documents

A species status assessment (SSA) team composed of Service
biologists, in consultation with species experts, prepared an SSA
report for the Kern Plateau salamander, the Kern Canyon slender
salamander, and the relictual slender salamander (Service 2022a,
entire). The SSA report represents a compilation of the best scientific
and commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species. In accordance with our
joint policy on peer review published in the Federal Register on July
1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review of listing actions under the Act, we
sought the expert opinions of four appropriate specialists regarding
the SSA. We received two responses.

I. Finding for the Kern Plateau Salamander

Under section 4(b)(3)(B) of the Act, we are required to make a
finding whether or not a petitioned action is warranted within 12
months after receiving any petition that we have determined contains
substantial scientific or commercial information indicating that the
petitioned action may be warranted (``12-month finding''). We must make
a finding that the petitioned action is: (1) Not warranted; (2)
warranted; or (3) warranted but precluded. ``Warranted but precluded''
means that (a) the petitioned action is warranted, but the immediate
proposal of a regulation implementing the petitioned action is
precluded by other pending proposals to determine whether species are
endangered or threatened species, and (b) expeditious progress is being
made to add qualified species to the Lists of Endangered and Threatened
Wildlife and Plants (Lists) and to remove from the Lists species for
which the protections of the Act are no longer necessary. Section
4(b)(3)(C) of the Act requires that, when we find that a petitioned
action is warranted but precluded, we treat the petition as though
resubmitted on the date of such finding; accordingly, a subsequent
finding must be made within 12 months of that date. We must publish
these 12-month findings in the Federal Register.

[[Page 63153]]

Summary of Information Pertaining to the Five Factors

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future, which
appears in the statutory definition of ``threatened species.'' The
regulatory language that is applicable to determinations of the
foreseeable future is contained in the regulations at 50 CFR 424.11(d)
promulgated in 2019 (In re: Washington Cattlemen's Ass'n, No. 22-70194
(9th Cir. Sept. 21, 2022) (staying the district court's vacatur of the
2019 regulations pending resolution of the motion for reconsideration)
(Washington Cattlemen's)). However, those regulations remain the
subject of ongoing litigation, and their continued applicability is
therefore uncertain. If the litigation results in vacatur of the 2019
regulations, the regulations that were in effect before those 2019
regulations (the pre-2019 regulations) would again become the governing
law for listing decisions. Because of the uncertainty surrounding the
legal status of the regulations, we undertook two analyses of the
foreseeable future for the Kern Plateau salamander: one under the 2019
regulations and one under the pre-2019 regulations, which may be
reviewed in the 2018 edition of the Code of Federal Regulations at 50
CFR 424.11(d). Those pre-2019 regulations did not include provisions
clarifying the meaning of ``foreseeable future,'' so we applied a 2009
Department of the Interior Solicitor's opinion (M-37021, ``The Meaning
of `Foreseeable Future' in Section 3(2) of the Endangered Species Act''
(Jan. 16, 2009) (M-37021).
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
In conducting our evaluation of the five factors provided in
section 4(a)(1) of the Act to determine whether the Kern Plateau
salamander (Service 2022b, entire) currently meets the definition of
``endangered species'' or ``threatened species,'' we considered and
thoroughly evaluated the best scientific and commercial data available
regarding threats, regulatory mechanisms, conservation measures,
current condition, and future condition. We reviewed the petition,
information available in our files, and other available published and
unpublished information. This evaluation includes information from
recognized experts; Federal, State, and Tribal governments; academic
institutions; private entities; and other members of the public. After
comprehensive assessment of the best scientific and commercial data
available, we determined that the Kern Plateau salamander does not meet
the definition of an endangered or a threatened species.
The SSA Report for the Three Slender Salamanders and the Species
Assessment Form for the Kern Plateau salamander contain more detailed
biological information regarding the Kern Plateau salamander, a
thorough description of the factors influencing the species' viability,
and the current and future conditions of the species (Service 2022a,
entire; Service 2022b, entire). This supporting information can be
found on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under docket
number FWS-R8-ES-2022-0081. The following is a summary of our
determination for the Kern Plateau salamander.

Summary of Finding

The Kern Plateau salamander is a slender salamander that has a
broad, robust body with 16-17 costal grooves and a relatively short
tail. The salamander is known from 35 sites, spread across areas of
Sequoia National Forest and Inyo National Forest and privately owned
land on the eastern slope of the Sierra Nevada, located in Inyo and
Kern Counties, California.
The Kern Plateau salamander requires bodies of surface water such
as seeps, springs, streams, and associated riparian and mesic habitat.
In addition, the salamander requires the presence of sufficient refugia
consisting of materials such as woody debris, bark, leaf litter, rocks,
and other cover objects within mesic and riparian habitats. Abundant
interstitial spaces must be available

[[Page 63154]]

underneath debris or cover objects to facilitate resting, foraging, and
movement of salamanders. Microclimates underneath debris or cover
objects must be cool and moist as the Kern Plateau salamander is
susceptible to desiccation.
In the SSA report (Service 2022a, pp. 12-15), the range of the Kern
Plateau salamander was divided into three geographic groups: the Kern
Plateau geographic group in the southwestern Sierra Nevada in Kern
County, CA; the Inyo geographic group on the eastern slope of Sierra
Nevada in Inyo County, CA; and the Scodie Mountain geographic group in
the Scodie Mountains in Kern County, CA. The Kern Plateau and Scodie
Mountain geographic groups are entirely within the Sequoia National
Forest. The Scodie Mountain geographic group also falls within the
Kiavah Wilderness. The Inyo geographic group includes areas in the Inyo
National Forest and outside of the National Forest in Owens and Indian
Wells Valleys.

Kern Plateau Salamander: Status Throughout All of Its Range

The Kern Plateau salamander is an endemic species currently known
from 35 sites across a 302,035-ha (746,347-ac) range, with no
identified reductions in historical range, redundancy, or
representation. In the SSA report and the SAF, we analyzed ten
potential threats impacting the species and its habitat. Currently,
habitat supporting the Kern Plateau salamander is primarily affected by
habitat degradation from roads (Factor A), recreation (Factor A),
grazing (Factor A), timber harvest and hazard tree removal (Factor A),
fire (Factor A), and climate change (Factor E). These threats continue
to degrade the seep and spring habitat, and in some rare cases may
result in direct mortality of individual Kern Plateau salamanders.
Fire (Factor A) currently presents one of the largest risks to the
Kern Plateau salamander. The fire threat as measured by CAL FIRE is
high to very high at most of the sites occupied by the Kern Plateau
salamander on the Kern Plateau and Scodie Mountain geographic groups,
and moderate to high at sites in the Inyo geographic group (Service
2022a, figure 27). There are few regulatory mechanisms available to
address the risk of catastrophic wildfire to the species. The Scodie
Mountain geographic group previously experienced a high-severity fire
in 1997 that altered the habitat type and likely degraded the seep and
stream microhabitat. In addition to all sites being subjected to fire
risk, most sites across the species' range are further subject to
habitat degradation through grazing, with a majority of sites within
grazing allotments (Factor A).
The threat from the impact of roads (Factor A), recreation (Factor
A), and timber harvest and hazard tree removal (Factor A) to the Kern
Plateau salamander varies throughout the species' range. Habitat in the
Inyo geographic group is more isolated from roads and recreation, and
timber harvest does not take place in the area (additionally, hazard
tree removal may not be carried out in isolated areas). Timber harvest
has not occurred within the Scodie Mountains, but within this area
there are roads and trails in proximity to the occupied sites, and the
nearby McIver's Cabin is a popular destination for OHV recreationists
and hikers. Within the Kern Plateau geographic group, there are areas
that have frequent motorized recreation use, tree harvest, and hazard
tree removal. In the parts of geographic groups found within Inyo and
Sequoia National Forests, the effects associated with some of the
threats impacting the species are being reduced in magnitude due to
implemented regulatory mechanisms (Factor D) within the national
forests due to the Kern Plateau salamander being a USFS species of
conservation concern.
After evaluating threats to the Kern Plateau salamander and
assessing the cumulative effect of the threats under the section
4(a)(1) factors, we find that though the Kern Plateau salamander
currently has some reduced population resiliency in two of the
geographic groups, population resiliency is maintained from historical
levels at the third geographic group (Inyo), and, overall, the species
is still extant at multiple sites throughout the range. Additionally,
species redundancy is currently maintained at its historical condition
throughout the two largest geographic groups. The Kern Plateau
salamander is a narrow endemic and does not have a broad range that
encompasses large environmental variability; however, because the
species is still distributed throughout its historical range, which
includes a range of elevations (1,434-2,804 m (4,705-9,200 ft)) and
climatic conditions, the Kern Plateau salamander maintains ecological
representation. Thus, after assessing the best available information,
we conclude that the Kern Plateau salamander is not in danger of
extinction throughout all of its range.
Therefore, we proceed with determining whether the Kern Plateau
salamander is likely to become endangered within the foreseeable future
throughout all of its range. In considering the foreseeable future as
it relates to the status of the Kern Plateau salamander, we considered
the timeframes applicable to the relevant risk factors (threats) to the
species and whether we could draw reliable predictions about future
exposure, timing, and scale of negative effects and the species'
response to these effects. We considered whether we could reliably
assess the risk posed by the threats to the species, recognizing that
our ability to assess risk is limited by the variable quantity and
quality of available data about effects to the Kern Plateau salamander
and its response to those effects.
The SSA report's analysis of future scenarios over a 50-year
timeframe encompasses the best available information for projected
future changes in climate change and its effect on modified hydrology
across the range of the Kern Plateau salamander. This 50-year timeframe
enabled us to consider the threats/stressors acting on the species and
to draw conclusions on the species' response to those factors. In our
future conditions analysis, we considered the ``intermediate''
emissions scenario of RCP 4.5 (Scenario 1) and the ``very high''
emissions scenario of RCP 8.5 (Scenario 2). Under Scenario 1, the
resiliency of the Inyo, Kern Plateau, and Scodie geographic groups will
be reduced from the current condition. The resiliency of the Scodie
Mountain geographic group will be the furthest reduced, and the Scodie
Mountain geographic group will be more vulnerable to stochastic events.
However, the representation and redundancy of the Kern Plateau
salamander will be maintained from current levels. Under Scenario 2,
decreased resiliency, representation, and redundancy is projected for
the three geographic units, with the Scodie Mountain geographic group
again being the most vulnerable to stochastic events. Despite a decline
in resiliency under both scenarios and a decline in representation and
redundancy under Scenario 2, the Kern Plateau salamander is projected
to maintain its distribution throughout the major areas that it
historically occupied, with the Inyo and Kern Plateau geographic groups
retaining more suitable habitat and occupied sites than the Scodie
Mountain geographic group. Even considering threats impacting the
species and the species' response, the Kern Plateau salamander will
likely maintain enough resiliency, representation, and redundancy to

[[Page 63155]]

maintain viability into the foreseeable future.
After assessing the best available information on the factors
affecting the species (threats) within our future scenarios and the
species' response to those factors, we conclude that the Kern Plateau
salamander is not likely to become endangered within the foreseeable
future throughout all of its range.

Kern Plateau Salamander: Status Throughout a Significant Portion of Its
Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. Under the Act and our implementing regulations, a species
may warrant listing if it is in danger of extinction or likely to
become so in the foreseeable future throughout all or a significant
portion of its range. Having determined that the Kern Plateau
salamander is not in danger of extinction or likely to become so in the
foreseeable future throughout all of its range, we now consider whether
it may be in danger of extinction or likely to become so in the
foreseeable future in a significant portion of its range--that is,
whether there is any portion of the species' range for which it is true
that both (1) the portion is significant; and (2) the species is in
danger of extinction now or likely to become so in the foreseeable
future in that portion. Depending on the case, it might be more
efficient for us to address the ``significance'' question or the
``status'' question first. We can choose to address either question
first. Regardless of which question we address first, if we reach a
negative answer with respect to the first question that we address, we
do not need to evaluate the other question for that portion of the
species' range.
In undertaking this analysis for the Kern Plateau salamander, we
chose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species may be endangered or threatened.
For the Kern Plateau salamander, we considered the following 10
threats: Roads (Factor A), recreation (Factor A); grazing (Factor A);
timber harvest (Factor A); hazard tree removal (Factor A);
infrastructure development (Factor A); fire (Factor A); overutilization
due to recreational, educational, and scientific use (Factor B);
disease (Factor C); predation (Factor C); effects associated with small
population size (Factor E); and climate change (Factor E). We also
evaluated existing regulatory mechanisms (Factor D). Most of these
threats are site-specific or affect only individual salamanders; thus,
they do not rise to the level of affecting the species at a
biologically meaningful scale. However, we now further consider the
impact of climate change, fire, grazing, and timber harvest of dead
trees, because these four threats occur across the range of the
species, though there may be some local variation in magnitude.
Next, we consider if any portions of the range may be uniquely
vulnerable to those threats. As we noted above, the Scodie Mountain
geographic group has a reduced ability to withstand and recover from
normal stochastic variation, relative to historical conditions and will
have reduced condition in the foreseeable future as compared to other
geographic groups. However, the impact of these threats listed above is
only slightly higher in the Scodie Mountain geographic group than in
the Kern Plateau geographic group. Additionally, the entirety of the
Scodie Mountain geographic group falls within the boundary of the
Sequoia National Forest; thus, the magnitude of threats is reduced by
measures to reduce impacts to seeps and springs from threats such as
grazing and from hazard tree removal. The land management plan outlines
desired habitat management conditions for riparian areas which, upon
implementation, would reduce the risks of catastrophic wildfire and
climate change in the area. Though there are a limited number of
occurrences in the Scodie Mountain geographic group, scientists have
detected salamanders even post-fire, indicating that despite degraded
habitat conditions, it still maintains the ability to withstand
stochastic events. Thus, we found no concentration of threats at a
biologically meaningful scale anywhere in the Kern Plateau salamander's
range, and we conclude that there is no portion of the range where the
status of the species differs from any other portion of the species'
range.
Therefore, we find that the species is not in danger of extinction
now or likely to become so in the foreseeable future in any significant
portion of its range. This does not conflict with the courts' holdings
in Desert Survivors v. Department of the Interior, 321 F. Supp. 3d
1011, 1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching
this conclusion, we did not apply the aspects of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014), including the
definition of ``significant'' that those court decisions held to be
invalid.

Kern Plateau Salamander: Determination of Status

Our review of the best available scientific and commercial
information indicates that the Kern Plateau salamander does not meet
the definition of an endangered species or a threatened species in
accordance with sections 3(6) and 3(20) of the Act. Therefore, we find
that listing the Kern Plateau salamander is not warranted at this time.
A detailed discussion of the basis for this finding can be found in the
Kern Plateau salamander species assessment form (Service 2022b, entire)
and other supporting documents, such as the accompanying SSA report
(Service 2022a, entire) (see <a href="https://www.regulations.gov">https://www.regulations.gov</a> under docket
number FWS-R8-ES-2022-0081).

II. Proposed Listing Determination for the Kern Canyon Slender
Salamander and the Relictual Slender Salamander

Background

A thorough review of the taxonomy, life history, and ecology of the
Kern Canyon slender salamander and the relictual slender salamander is
presented in the SSA report (Service 2022a, pp. 2-14).
The Kern Canyon slender salamander and the relictual slender
salamander are lungless, terrestrial salamanders that are found in the
southern Sierra Nevada. Slender salamanders are within the genus
Batrachoseps and are known for their long, thin bodies, small limbs,
and projectile tongues that they use to catch small invertebrate prey
(Stebbins and McGinnis 2012, pp. 124-140). Relictual slender
salamanders are small (1.3-1.9 in (3.3-4.7 cm) snout-vent length) with
18-19 costal grooves and have blackish brown coloration with a red,
yellow, or brown dorsal stripe (Jockusch et al. 2012, p. 14; Stebbins
and McGinnis 2012, p. 139). Kern Canyon slender salamanders are larger
(1.6-2.2 in (4.0-5.6 cm) snout-vent length) with broader head and limbs
and 20-21 costal grooves (Stebbins and McGinnis 2012, p. 130). The
ventral surfaces and sides of Kern Canyon slender salamanders are dark
brown with flecks of lighter color, and the dorsal surfaces are mottled
bronze and red. Many of the life-history characteristics of the
relictual and Kern Canyon slender salamanders are

[[Page 63156]]

unknown but are assumed to be similar to other species of slender
salamanders.
Slender salamanders are thought to lay eggs terrestrially in
protected areas, hatch from eggs as miniature adults, reach
reproductive maturity in 2-4 years, and live for a maximum of 8-10
years (Hendrickson 1954, p. 19; Stebbins 1985, p. 39; Wake and Castanet
1995, p. 63; Jockusch and Mahoney 1997, entire; Wake 2017, entire).
Slender salamanders are active on the surface seasonally when
conditions are favorable for performing skin and buccopharyngeal
respiration (oxygen is taken up simply by diffusion or by the
contraction and relaxation of the muscles of the cheeks or mouth and
throat). At lower elevations, the relictual slender salamanders and
Kern Canyon slender salamanders have been found active on the surface
from January to May; at higher elevations, they are active from March
to early November (Jockusch et al. 2012, p. 17; Jockusch 2021a, pers.
comm.). When these species are active on the surface, they are usually
found under cover objects, such as rocks, woody debris, and leaf
litter, that are in proximity to seeps, springs, or streams (Stebbins
1985, p. 39; Jockusch and Mahoney 1997, entire; Wake 2017, entire).
When conditions are not favorable on the surface, slender salamanders
are thought to shelter in underground burrows (Cunningham 1960, p. 95;
Lannoo 2005, pp. 688-693).
The Kern Canyon slender salamander was known historically from 18
occupied sites to the southwest of the Isabella Lake reservoir in Kern
County, California. Kern Canyon slender salamanders are found within
Sequoia National Forest in the lower Kern River Canyon and outside of
Sequoia National Forest within the Erskine Creek and Bodfish Creek
drainages. Kern Canyon slender salamanders occur in narrow canyons in
rocky habitat within the margins of seeps and streams or talus slopes
(Lannoo 2005, pp. 691-693). They are found under rocks and woody debris
in areas that retain soil moisture. Kern Canyon slender salamanders are
associated with pine-oak woodlands with overstory of foothill pine
(Pinus sabiniana), interior live oak (Quercus wislizeni), canyon live
oak (Quercus chrysolepis), California buckeye (Aesculus californica),
Freemont cottonwood (Populus fremontii), sycamore (Platanus racemosa),
and willow (Salix spp.). Historically, Kern Canyon slender salamanders
may have also been found in open grasslands.
The relictual slender salamander has historically been documented
at 13 sites within a small area of Sequoia National Forest in Kern
County, California. Within this limited range, the species is found in
small patches of moist, rocky habitat within the margins of seeps,
springs, and streams. Relictual slender salamanders have been observed
submerged in seeps and springs and under cover objects that have water
beneath them (Lannoo 2005, p. 687; Jockusch et al. 2012, p. 17).
Consequently, the species has been described as semi-aquatic and is
thought to have a closer association with water than other species of
slender salamanders. Two communal nests of relictual slender
salamanders have been found during the spring and early summer in rocky
habitat at the edge of seep and stream habitat (Jockusch 2021a, pers.
comm.). In the lower Kern River Canyon, the relictual slender
salamander is found in valley foothill riparian habitat and blue oak
woodland with limited tree cover of oaks (Quercus spp.), buckeyes
(Aesculus spp.), and sycamores. On Breckenridge Mountain, the species
is found in Sierran mixed-conifer forest with closed canopies of pine
(Pinus spp.), fir (Abies spp.), and oak (Quercus spp.).
Information on occurrences for the Kern Canyon slender salamander
and the relictual slender salamander is limited, as widespread
systematic surveys for the species have not been conducted. Therefore,
the best available information on the Kern Canyon slender salamander
and the relictual slender salamander comes from recorded incidental
observations and opportunistic searches over limited areas. Due to the
nature of these records of observations, the survey effort for the two
species is not standard from one site to another, across geographic
groups, or from species to species. At some of the sites where
salamanders have been observed, the sites have not been searched for
the species over the last 30-40 years. In these cases, there is
considerable uncertainty as to whether the species continues to occupy
the sites. In the absence of more recent information, if conditions at
the site are still suitable to support the species, we assume that the
species continues to occupy these sites but recognize that there is
uncertainty associated with this assumption.
There is no available information on population structure or
population sizes of either the Kern Canyon slender salamander or the
relictual slender salamander. Therefore, we divide the sites of each
species into geographic groups to aid our analysis in our SSA report
and this proposed rule. The Kern Canyon slender salamander has
historically been documented in 18 sites in the Lower Kern River Canyon
and Erskine Creek geographic groups; only 9 of those sites are
currently considered extant (table 1), although 2 have not had surveys
reported to CNDDB in the last 30-40 years. The relictual slender
salamander has been documented from 13 sites in the Lower Kern River
Canyon geographic group, the Lucas Creek geographic group, and the
Squirrel Meadow geographic group. All five sites in the Lower Kern
River Canyon geographic group are considered to be extirpated, and
eight sites in the other two geographic groups are currently considered
extant. In 2019, a search of mesic habitat on Breckenridge Mountain led
to the discovery of four sites (Flying Dutchman Drainage, Mill Creek
Drainage A, Mill Creek Drainage B, Mill Creek Drainage C) occupied by
the relictual slender salamander. At two of those sites more than 20
individuals were found; however, we do not have specific information on
which of the 4 sites had more than 20 individuals (Figure 1; Jockusch
2021a, pers. comm.).

Table 1--Kern Canyon Slender Salamander Sites in California
[CNDDB 2022, unpaginated; Jockusch 2021a, pers. comm]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range of
Site Geographic group number Year first Year last Year last Presumed
observed observed observed surveyed extant?
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cow Flat Creek............................ Lower Kern River Canyon..... 0-5 1952 1970 1979 * No **
Stark Creek............................... Lower Kern River Canyon..... 1-7 1960 1979 1979 * No **
SE of HWY 178............................. Lower Kern River Canyon..... 2-11 1960 1978 1979 * No **
Unnamed drainage (SW Democrat Hot Springs) Lower Kern River Canyon..... 1 1970 1970 1970 * No **
Dougherty Creek........................... Lower Kern River Canyon..... 1-8 1970 1991 1991 * No **
Lucas Creek............................... Lower Kern River Canyon..... 20 1975 1975 1975 * No **
Mill Creek................................ Lower Kern River Canyon..... 1 1979 1979 1979 * No **

[[Page 63157]]

Miracle Hot Springs....................... Lower Kern River Canyon..... 1-12 1979 2008 2008 [dagger] Yes
Seep N of Cow Flat Creek.................. Lower Kern River Canyon..... 1 1991 1991 1991 * No **
NE of Hobo Campground..................... Lower Kern River Canyon..... 1 2007 2018 2018 Yes
S Cow Flat Rd............................. Lower Kern River Canyon..... 1 2010 2010 2010 No **
Erskine Creek A........................... Erskine Creek Canyon........ 3 1981 1981 1981 Yes [Dagger]
Erskine Creek B........................... Erskine Creek Canyon........ 12 1981 1981 1981 Yes [Dagger]
Erskine Creek C........................... Erskine Creek Canyon........ 2-3 1992 1993 1993 Yes
Bodfish Creek A........................... Erskine Creek Canyon........ 2 2001 2001 2001 Yes
Erskine Creek D........................... Erskine Creek Canyon........ 1 2010 2010 2010 Yes
Eagle Peak................................ Erskine Creek Canyon........ 1 2019 2019 2019 Yes
Bodfish Creek B........................... Erskine Creek Canyon........ 1 2021 2021 2021 Yes
Geographic Group Summary.................. Lower Kern River Canyon..... 0-20 1952 2018 2018 Yes
Geographic Group Summary.................. Erskine Creek Canyon........ 1-12 1981 2021 2021 Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* More recent negative surveys have not been reported to CNDDB.
** A species expert indicates the Kern Canyon slender salamander may be largely or entirely gone from the site.
[dagger] A species expert indicates the Kern Canyon slender salamander has been observed at this site since 2008. However, the year of more recent
observations has not been reported to CNDDB.
[Dagger] Surveys for the Kern Canyon slender salamander at this site have not been reported to CNDDB in the last 30-40 years, so there is uncertainty as
to whether the species is present.

Table 2--Relictual Slender Salamander Sites in California
[CNDDB 2022, unpaginated; Jockusch 2021a, pers. comm]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range of
Site Geographic group number Year first Year last Year last Presumed
observed observed observed surveyed extant?
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cow Flat Creek............................ Lower Kern River Canyon..... 0-12 1955 1968 1979 * No
Lucas Creek A............................. Lower Kern River Canyon..... 0-6 1960 1960 1975 * No
Unnamed Tributary (E Democrat Hot Springs) Lower Kern River Canyon..... 0-8 1964 1964 1964 * No
Stark Creek............................... Lower Kern River Canyon..... 0-4 1964 1964 1964 * No
Unnamed Tributary (SW Democrat Hot Lower Kern River Canyon..... 0-3 1967 1967 1967 * No
Springs).
Lucas Creek B **.......................... Lucas Creek................. 1-8 2001 2019 2019 Yes
Tributary to Lucas Creek A................ Lucas Creek................. 2 2017 2017 2017 Yes
Tributary to Lucas Creek B................ Lucas Creek................. 1 2021 2021 2021 Yes
NE of Squirrel Meadow..................... Squirrel Meadow............. 0-30 1977 2021 2021 Yes
Flying Dutchman Drainage.................. Squirrel Meadow............. Information 2019 2021 2021 Yes
not available
Mill Creek Drainage A..................... Squirrel Meadow............. Information 2019 2021 2021 Yes
not available
Mill Creek Drainage B..................... Squirrel Meadow............. Information 2019 2021 2021 Yes
not available
Mill Creek Drainage C..................... Squirrel Meadow............. Information 2019 2019 2019 Yes
not available
Geographic Group Summary.................. Lower Kern River Canyon..... 0-12 1955 1968 1979 * No
Geographic Group Summary.................. Lucas Creek................. 1-8 2001 2021 2021 Yes
Geographic Group Summary.................. Squirrel Meadow............. 0-30 1977 2021 2021 Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* This site has been searched for the species since the year identified as the ``year last surveyed'' (Hansen 1997, entire; Jennings and Hayes 1994, p.
22; Lannoo 2005, p. 687). However, the more recent negative surveys have not been reported to CNDDB.
** This site encompasses two CNDDB occurrence points on Lucas Creek that are considered to be one site (Jockusch 2021b, pers. comm.).

BILLING CODE 4333-15-C

[[Page 63158]]

[GRAPHIC] [TIFF OMITTED] TP18OC22.000

BILLING CODE 4333-15-P
Figure 1--Estimated Range of the Kern Canyon Slender Salamander and the
Relictual Slender Salamander

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for threatened and
endangered species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued final rules that revised the regulations in
50 CFR parts 17 and 424 regarding how we add, remove, and reclassify
threatened and endangered species and the criteria for designating
listed species' critical habitat (84 FR 45020 and 84 FR 44752; August
27, 2019). At the same time the Service also issued final regulations
that, for species listed as threatened species after September 26,
2019, eliminated the Service's general protective regulations
automatically applying to threatened species the prohibitions that
section 9 of the Act applies to endangered species (collectively, the
2019 regulations).

[[Page 63159]]

However, as discussed under I. Finding for the Kern Plateau
Salamander, the U.S. District Court for the Northern District of
California vacated the 2019 regulations (Center for Biological
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July
5, 2022) (CBD v. Haaland)), reinstating the regulations that were in
effect before the effective date of the 2019 regulations as the law
governing species classification and critical habitat decisions.
Accordingly, in developing the analysis contained in this proposal, we
applied the pre-2019 regulations, which may be reviewed in the 2018
edition of the Code of Federal Regulations at 50 CFR 17.31, 17.71,
424.02, 424.11(d)-(e), and 424.12(a)(1) and (b)(2)). Because of the
ongoing litigation regarding the court's vacatur of the 2019
regulations, and the resulting uncertainty surrounding the legal status
of the regulations, we also undertook an analysis of whether the
proposal would be different if we were to apply the 2019 regulations.
That analysis, which we described in a separate memo in the decisional
file and posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>, concluded that we would
have reached the same proposal if we had applied the 2019 regulations.
For both species, the relevant critical habitat regulations we
considered were (1) critical habitat prudency (424.12(a)(1)), (2)
unoccupied critical habitat (424.12(b)(2)), and (3) the definition of
physical or biological features (PBFs)(424.12.02). For the Kern Canyon
slender salamander, we also considered (1) foreseeable future and (2)
the 4(d) rule.
On September 21, 2022, the U.S. Circuit Court of Appeals for the
Ninth Circuit stayed the district court's July 5, 2022, order vacating
the 2019 regulations until a pending motion for reconsideration before
the district court is resolved (In re: Cattlemen's Ass'n, No. 22-
70194). The effect of the stay is that the 2019 regulations are
currently the governing law. Because a court order requires us to
submit this proposal to the Federal Register by September 30, 2022, it
is not feasible for us to revise the proposal in response to the Ninth
Circuit's decision. Instead, we hereby adopt the analysis in the
separate memo that applied the 2019 regulations as our primary
justification for the proposal. However, due to the continued
uncertainty resulting from the ongoing litigation, we also retain the
analysis in this preamble that applies the pre-2019 regulations and we
conclude that, for the reasons stated in our separate memo analyzing
the 2019 regulations, this proposal would have been the same if we had
applied the pre-2019 regulations For the Kern Canyon slender
salamander, we conclude that the decision would have been the same if
we had applied the 2019 regulations at 50 CFR 424.11(d) because the
data regarding timeframes used in our analysis pertaining to the
threats and species' responses to those threats are based on the best
available science, and supports our analysis that the threats and
species' responses to those threats are likely (2019 regulations) and
supports our ability to make reasonably reliable predictions about the
future (2009 M-Opinion). Under either regulatory scheme we find that
critical habitat is prudent for the relictual slender salamander and
the Kern Canyon slender salamander and that unoccupied critical habitat
is essential for the conservation of both species. In order to recover
the species, connecting corridors of suitable habitat need to be
maintained between areas occupied by the species. It is reasonably
certain that the unoccupied units will contribute to the conservation
of the species by providing additional areas for recovery actions and
providing connectivity between occupied areas. The unoccupied units
contain one or more of the physical or biological features that are
essential to the conservation of the species and have the abiotic and
biotic features that currently or periodically contain the resources
and conditions necessary to support one or more life processes of the
salamanders.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' With the
vacatur of the 2019 regulation regarding foreseeable future, we refer
to a 2009 Solicitor's Opinion (M-37021), which states that the
foreseeable future ``must be rooted in the best available data that
allow predictions into the future'' and extends as far as those
predictions are ``sufficiently reliable to provide a reasonable degree
of confidence in the prediction, in light of the conservation purposes
of the Act.''
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes

[[Page 63160]]

applicable to the relevant threats and to the species' likely responses
to those threats in view of its life-history characteristics. Data that
are typically relevant to assessing the species' biological response
include species-specific factors such as lifespan, reproductive rates
or productivity, certain behaviors, and other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found at Docket No. FWS-R8-ES-2022-0081 and on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
To assess Kern Canyon slender salamander and relictual slender
salamander viability, we used the three conservation biology principles
of resiliency, redundancy, and representation (Shaffer and Stein 2000,
pp. 306-310). Briefly, resiliency supports the ability of the species
to withstand environmental and demographic stochasticity (for example,
wet or dry, warm or cold years), redundancy supports the ability of the
species to withstand catastrophic events (for example, droughts, large
pollution events), and representation supports the ability of the
species to adapt over time to long-term changes in the environment (for
example, climate changes). In general, the more resilient and redundant
a species is and the more representation it has, the more likely it is
to sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of each
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on both species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.

Species Needs for the Kern Canyon Slender Salamander and the Relictual
Slender Salamander

Individual Needs
The Kern Canyon slender salamander and the relictual slender
salamander require bodies of surface water such as seeps, springs, and
streams and associated riparian and mesic habitat. In addition, the
salamanders require the presence of sufficient refugia consisting of
debris such as woody debris, bark, leaf litter, rocks, and other cover
objects within mesic and riparian habitats. There must be abundant
interstitial spaces underneath debris or cover objects to facilitate
resting, foraging, and movement of salamanders. Microclimates
underneath debris or cover objects must be cool and moist as the Kern
Canyon slender salamander and the relictual slender salamander are
susceptible to desiccation.
For the purpose of the SSA report and this proposed rule, the
habitat factors considered most significant for the Kern Canyon slender
salamander and the relictual slender salamander are seeps, springs, and
streams; debris including woody debris, bark, leaf litter; and rocks
that provide refugia within riparian and mesic habitats; cool and damp
microhabitat conditions; and small invertebrate prey. Additionally, the
Kern Canyon slender salamander and the relictual slender salamander
require access to mates to carry out breeding (Service 2022a, p. 15;
table 4).
Population Needs
At the population level, we used the best available information to
assess the resources and circumstances that most influence the
resiliency of Kern Canyon slender salamander and relictual slender
salamander populations. The population needs that we evaluate for this
species are survival, dispersal, fecundity, and abundance. Because
information is not available on population structure or size for either
species, we consider geographic groups as a proxy for populations and
thus discuss resiliency by geographic group. We do note that, since we
have no information on population structure or dispersal, analyzing
resiliency by geographic groups may over-estimate the resiliency of the
Kern Canyon slender salamander and the relictual slender salamander, as
the extent of geographic groups is greater than estimated average
dispersal distance of the salamanders.
With regard to survival, most of the individual needs identified
above influence survival in a geographic group. Survival may be limited
by both the quantity and quality of available habitat including the
presence of seeps, springs, and streams; debris that provides refugia;
and cool and damp microhabitats. However, we do not know how much
suitable habitat is required to sustain geographic groups of either the
Kern Canyon slender salamander or the relictual slender salamander.
Survival is also affected by the availability of prey.
No information is available on the dispersal distances of the Kern
Canyon slender salamander and the relictual slender salamander. In
general, slender salamanders are thought to have small home ranges and
to be highly sedentary. The maximum distances traveled by

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other species of slender salamanders such as the Pacific slender
salamander (Batrachoseps pacificus) and the California slender
salamander (Batrachoseps attenuatus) is of 3.0-18.3 m (9.8-60.0 ft)
(Hendrickson 1954, p. 12; Anderson 1960, p. 369; Cunningham 1960, p.
96). The salamanders may travel to participate in communal nesting or
to find mates. In order for dispersal to be successful, connected mesic
and riparian habitats must contain sufficient prey and debris for
refugia to allow juveniles or adults to move across the landscape,
rest, forage, find mates, and begin breeding. However, we do not know
how much habitat connectivity is required to sustain the geographic
groups of the Kern Canyon slender salamander and relictual slender
salamander. The Kern Canyon slender salamander and the relictual
slender salamander have patchy distribution and there may be barriers
to dispersal between areas of suitable habitat. Barriers to dispersal
for the Kern Canyon slender salamander and the relictual slender
salamander may include roads, activities that cause ground disturbance
such as construction or trampling, and a lack of surface water or moist
riparian habitat that act as corridors.
Not much is known about the reproduction of the Kern Canyon slender
salamander or the relictual slender salamander. In general, lungless
salamanders (family: Plethodontidae) produce one clutch annually. The
clutch sizes of the relictual slender salamander and the Kern Canyon
slender salamander are unknown. However, visual counts indicate that
gravid relictual slender salamanders carry between 16-22 eggs (Jockusch
2021a, pers. comm.; Jockusch 2021b, pers. comm.). Many of the
individual needs of the Kern Canyon slender salamander and the
relictual slender salamander are expected to influence fecundity of the
species, including availability of suitable aquatic and riparian
habitats, debris for refugia, small invertebrate prey, and mates.
While we do not have population estimates or a robust understanding
of the abundance of the Kern Canyon slender salamander and the
relictual slender salamander, many of the individual needs for the two
species are expected to influence abundance. A variety of factors may
regulate the numbers of the Kern Canyon slender salamander and the
relictual slender salamander in each geographic group. These factors
may be density-dependent (habitat quality, habitat abundance) or
density-independent (climate). The salamanders require sufficient
habitat to support population sizes large enough to recover from
harmful events such as storms, droughts, or fires (environmental
stochasticity). We discuss the potential impacts of such factors below,
but we lack information regarding the amount of habitat and resulting
population size that a single population would require to minimize such
risks.
Species Needs
At the species level, we consider the needs of the Kern Canyon
slender salamander and the relictual slender salamander in terms of
redundancy and representation. In this SSA report and this proposed
rule, we evaluate the redundancy of the Kern Canyon slender salamander
and the relictual slender salamander by considering the number and
distribution of sites occupied by each species in relation to the scale
of catastrophic events that are likely to occur, such as the average
size of fires in the region.
Regarding representation, in the absence of genetic data for the
Kern Canyon slender salamander and the relictual slender salamander, we
consider the breadth of environmental diversity for the species. In
general, these salamander species are narrow endemics and do not have
broad ranges that encompass large environmental variability. However,
each of the salamander species occurs over a range of different
elevations (Kern Canyon slender salamander: 451-1,676 m (1,480-5,500
ft); relictual slender salamander: 1,219-1,920 m (4,000-6,300 ft)). Due
to the differences in climate found throughout the range of elevation
occupied by each species, slender salamanders are active on the surface
during different seasons. These differences in climatic conditions and
temporal behaviors may indicate genetic variability between geographic
groups, which may help the Kern Canyon slender salamander and the
relictual slender salamander adapt to future environmental variability.

Threats

Following are summary evaluations of eight threats analyzed in the
SSA report for the Kern Canyon slender salamander and the relictual
slender salamander: roads (Factor A), recreation (Factor A), grazing
(Factor A), timber harvest (Factor A), hazard tree removal (Factor A),
infrastructure development (Factor A), fire (Factor A), and climate
change (Factor E). We also evaluate existing regulatory mechanisms
(Factor D) and ongoing conservation measures.
In the SSA, we also considered four additional threats:
Overutilization due to recreational, educational, and scientific use
(Factor B); disease (Factor C); predation (Factor C); and effects
associated with small population size (Factor E). We concluded that, as
indicated by the best available scientific and commercial information,
these threats are currently having little to no impact on either the
Kern Canyon slender salamander or the relictual slender salamander, and
thus their overall effect now and into the future is expected to be
minimal. Therefore, we will not present summary analyses of those
threats in this document, but we will consider them in our cumulative
assessment of impacts to the species. For full descriptions of all
threats and how they impact the species, please see the SSA report
(Service 2022a, pp. 21-34).
In considering the foreseeable future as it relates to the status
of the Kern Canyon slender salamander, we considered the timeframes
applicable to the relevant risk factors (threats) to the species and
whether we could draw reliable predictions about future exposure,
timing, and scale of negative effects and the species' response to
these effects. We considered whether we could reliably assess the risk
posed by the threats to the species, recognizing that our ability to
assess risk is limited by the variable quantity and quality of
available data about effects to the Kern Canyon slender salamander and
its response to those effects. For the purposes of this assessment, we
consider the foreseeable future for the Kern Canyon slender salamander
to be 50 years. This time period represents our best professional
judgment of the foreseeable future conditions related to the range of
available climate change models and for reasonable extrapolations of
current trends and the species' responses to those conditions.
Roads
Roads may alter seeps, springs, and drainages and reduce
microhabitat features that support the Kern Canyon slender salamander
and the relictual slender salamander, such as soil moisture and cover
objects, especially during road construction or maintenance projects
(Marsh and Beckman 2004, pp. 1889-1890; Clipp and Anderson 2014, p.
2690). Hydrologic effects are likely to persist for as long as the road
remains a physical feature altering flow routing; these effects can
often persist long after abandonment and revegetation of the road
surface. Additionally, undersized or impaired culverts can degrade
salamander habitat by flooding areas, changing stream dynamics, or
rerouting

[[Page 63162]]

water such that it is no longer available to salamanders (Anderson et
al. 2014, pp. 278-279). Roads can also act as barriers to movement and
effectively isolate populations (Marsh et al. 2005, pp. 2006-2007).
Furthermore, motor vehicle strikes may cause direct mortality of
salamanders. However, because they are sedentary and nonmigratory,
slender salamanders are considered to be at low risk of direct
mortality by vehicle strikes (Brehme et al. 2018, p. 924).
Numerous County and USFS roads throughout Sequoia National Forest
and on privately owned land may impact the two salamander species and
their habitat. Most notably, State Route 178 is a heavily trafficked
road that passes through the historical range of the relictual slender
salamander and the current range of the Kern Canyon slender salamander
in the Lower Kern River Canyon. Construction of State Route 178 in 1933
and subsequent repair, maintenance, and widening of the road altered
drainages and degraded habitat occupied by the salamanders (Lannoo
2005, pp. 688-693; USFS 2011a, p. 39). The highway's construction may
have contributed to the extirpation of the relictual slender salamander
from the Lower Kern River Canyon (Lannoo 2005, pp. 688-690; USFS 2011a,
p. 39). The Kern Canyon slender salamander may also have been
extirpated from sites in the Lower Kern River Canyon due in part to
degradation of habitat from construction and enhancement of State Route
178 (Lannoo 2005, p. 693; USFS 2011a, p. 39).
Additionally, road construction associated with timber harvest in
Sequoia National Forest has historically degraded habitat for the
relictual slender salamander. On Breckenridge Mountain in the early
1980s, a USFS logging road was rerouted through a portion of a seep
occupied by the relictual slender salamander. The construction
considerably modified the structure and hydrology of the seep and the
number of relictual slender salamanders found at the site was reduced
for the following 20 years (Jennings and Hayes 1994, p. 24; Jockusch et
al. 2012, p. 18). The current land management plan for the Sequoia
National Forest outlines standards to minimize the impact of existing
roads on natural hydrologic flow and the impact of the construction of
roads on wetlands, and to decommission and rehabilitate low-priority
roads (USFS 2004, pp. 63, 65; USFS 2019a, p. 1555).
Currently, there are no plans to construct additional roads in the
range occupied by the species. Still, existing roads are impacting the
Kern Canyon slender salamander and the relictual slender salamander
through degradation of seep and spring habitat. Direct mortality also
occurs through roadkill; however, because slender salamanders are
sedentary and nonmigratory, they are considered to be at low risk of
direct mortality by vehicle strikes. Though these effects are site-
specific and are not expected to rise to the level of population
impacts, they are expected to continue into the foreseeable future.
Recreation
Recreation that results in ground disturbance within occupied
habitat may have direct and indirect impacts on the Kern Canyon slender
salamander and the relictual slender salamander. Recreation that could
impact slender salamanders includes dispersed camping (camping outside
designated sites), hiking, and OHV use. Trails that pass through
meadows, seeps, or springs have the potential to alter hydrology and
reduce habitat suitability for the Kern Canyon slender salamander and
the relictual slender salamander. Trails adjacent to occupied habitat
have the potential to alter hydrology, which may result in the loss of
mesic habitat or increased runoff and sedimentation that may negatively
impact water quality and seep and spring habitat (Sack and da Luz 2003,
entire; Meadows et al. 2008, entire). Additionally, trampling by
hikers, bikers, pets, and OHVs on trails within occupied habitat has
the potential to directly kill individual slender salamanders.
Sequoia National Forest offers a variety of recreation activities
for the public, including OHV trails, hiking, and camping; it receives
more than one million visitors a year (USFS 2019a, p. 72). The Lower
Kern River Canyon includes areas within the historical range of the
relictual slender salamander and the current range of the Kern Canyon
slender salamander that are high-use recreation areas. Parts of the
eastern portion of Breckenridge Mountain within the range of the
relictual slender salamander are moderate-use recreation areas (USFS
2019a, figure 23, p. 129). Additionally, OHV trails are located by
sites occupied by the relictual slender salamander on Breckenridge
Mountain and the Kern Canyon slender salamander in the Lower Kern River
Canyon.
For most USFS trails, considerations have been made to determine
the environmental impacts of the trails and adjustments have been made
to minimize impacts (USFS 2004, pp. 59, 63, 65; USFS 2019a, p. 85). In
the Lower Kern River Canyon within the historical range of the
relictual slender salamander and the range of the Kern Canyon slender
salamander, some areas have been gated off from OHVs to protect
sensitive riparian habitat (USFS 2013, p. 7). In the 1980s, dispersed
camping was restricted from some Sequoia National Forest lands in the
Lower Kern River Canyon within the historical range of the relictual
slender salamander and the range of the Kern Canyon slender salamander,
but these lands remain open to OHVs and foot traffic (USFS 2011a, p.
43). On Breckenridge Mountain in Sequoia National Forest within the
range of the relictual slender salamander, dispersed camping is
permitted and there is a designated primitive campground. Additionally,
illegal user-made OHV trails are continually established in the Sequoia
National Forest on Breckenridge Mountain within the range of the
relictual slender salamander (USFS 2019b, pp. 109, 115).
Recreation is currently impacting the Kern Canyon slender
salamander and the relictual slender salamander through degradation of
seep and spring habitat and possibly direct mortality of individuals,
although these effects are site-specific. Though measures reducing the
impact of this threat are in place due to forest management plans and
effects are not occurring at the population level, some effects on
seeps and springs and individual salamanders are expected to continue
into the foreseeable future.
Grazing
Cattle grazing and associated infrastructure (water troughs,
corrals, loading chutes, and fences) have the potential for direct and
indirect impacts to the Kern Canyon slender salamander and the
relictual slender salamander. The mesic habitat used by salamanders is
often in areas that livestock congregate in to seek shade, cooler
bedding, and water (USFS 2011a, p. 45). Grazing can cause erosion of
stream channels and can damage and reduce vegetative cover (Kauffman
and Krueger 1984, pp. 431-434; Armour et al. 1994, pp. 9-12). Loss of
vegetative cover from grazing has the potential to lower groundwater
tables and summer flows (Kauffman and Krueger 1984, pp. 431-434; Armour
et al. 1994, pp. 9-12). To provide water for livestock, water is
sometimes diverted from springs and streams, limiting the extent of wet
in-channel and riparian habitat. Formerly perennial seeps, springs, and
streams may become intermittent or dry due to loss of water storage
capacity in the aquifers that formerly sustained them. Further, heavy
grazing or grazing

[[Page 63163]]

incompatible with managing sensitive habitats can alter vegetative
species composition and contribute to expansion of lodgepole pine
(Pinus contorta) into areas that were formerly treeless (Ratliff 1985,
pp. 33-36; Cole and Landres 1996, p. 171). Additionally, loss of
vegetation cover caused by grazing and trampling can increase soil
temperature and reduce soil moisture, thereby impacting the
availability of suitable microclimate conditions for the Kern Canyon
slender salamander and the relictual slender salamander (Riedel et al.
2008, entire).
In past decades, cattle grazing has severely degraded salamander
habitat as grazing is concentrated at the bottom of narrow ravines
where salamanders are found near the surface in higher densities
(Lannoo 2005, pp. 688-693; USFS 2011a, p. 44). The rangelands of the
Sequoia National Forest within the range of the Kern Canyon slender
salamander and the relictual slender salamander have been grazed by
livestock since the late 1800s (USFS 2019a, p. 5). Currently, grazing
occurs throughout Sequoia National Forest, and most of the sites
occupied by the Kern Canyon slender salamander and the relictual
slender salamander are within grazing allotments. Grazing is managed by
the current land management plan for the Sequoia National Forest (USFS
2004, pp. 55-56, 65-66). The plan includes management strategies that
limit grazing in fens, meadows, and riparian areas and may therefore
benefit the Kern Canyon slender salamander and the relictual slender
salamander (USFS 2004, pp. 65-66). Specific measures include
inventorying of fens prior to reissuing of grazing permits to ensure
desired species richness and implementing grazing limitations or
suspensions necessary in the event of habitat degradation. In the last
20 years, some riparian areas within the Lower Kern River Canyon and on
Breckenridge Mountain have been fenced off to exclude livestock.
Additionally, some sites occupied by the species within grazing
allotments are in incidental use areas and may not be accessible to
livestock because of rocky terrain.
Grazing is currently impacting the Kern Canyon slender salamander
and the relictual slender salamander through degradation of seep and
spring habitat. The impact of grazing is particularly severe in some
habitat types more than others, though grazing within USFS lands is
managed to reduce impacts to sensitive riparian features. Still,
grazing is occurring throughout the range of both species, and we
expect it will continue to occur and impact Kern Canyon slender
salamander and the relictual slender salamander populations into the
foreseeable future.
Timber Harvest
Timber harvest including commercial harvest, thinning treatments to
reduce risk of fire, and snag removal post-fire or beetle-kill events
has the potential to impact the Kern Canyon slender salamander and the
relictual slender salamander through direct mortality and indirect
impacts to habitat. Direct mortality may result from timber harvest
involving the use of heavy equipment within the range of the species.
Heavy equipment used for timber harvest may crush salamanders that are
active on the surface. Aquatic and riparian habitats are impacted by
timber harvest that takes place within the watershed due to increased
runoff, erosion, and sedimentation, and the resulting changes in water
flow, water quality, and stream morphology (Chamberlin 1982, entire).
Additionally, timber harvest has the potential to indirectly affect
the terrestrial salamanders through construction of new roads to
support timber harvesting and bring in large equipment, removal of
shade structure that is important for the thermal regulation of the
environment and suitable microclimate conditions that support the Kern
Canyon slender salamander and the relictual slender salamander and
through removal of woody debris that salamanders need for refugia
(Duvall and Grigal 1999; entire). No studies have focused on the
effects of timber harvest on the Kern Canyon slender salamander and the
relictual slender salamander, but several studies have found that the
abundance of terrestrial salamanders decreases in areas that have been
harvested for timber (Petranka et al. 1993, entire; deMaynadier and
Hunter 1995, entire; Dupuis et al. 1995, entire; Ash 1997, entire;
Herbeck and Larsen 1999, entire; Knapp et al. 2003, entire; Homyack et
al. 2011, entire).
Timber harvest on national forest lands within the range of the
Kern Canyon slender salamander and the relictual slender salamander is
managed by the land management plan for the Sequoia National Forest.
The Revised Draft Land Management Plan for the Sequoia National Forest
identifies 32,276 ha (79,755 ac) as suitable for timber production
(USFS 2019b, p. 85). Areas classified as suitable for timber harvest
encompass 6.3 percent of the estimated historical range of the
relictual slender salamander and 0.5 percent of the estimated range of
the Kern Canyon slender salamander. Additionally, Sequoia National
Forest has had large tree mortality events due to drought conditions
and beetle outbreaks and, therefore, may experience an increase in
timber harvest of dead trees (Preisler et al. 2017, p. 166).
In recent years, large tree mortality events due to drought
conditions and beetle outbreaks have occurred in the Sequoia National
Forest (Preisler et al. 2017, p. 166). The estimated number of dead
trees in the Sequoia National Forest has increased annually for the
past decade (USFS 2018, entire). It is likely that tree mortality will
continue due to worsening drought conditions that will continue to
weaken trees and increase susceptibility to bark beetles and disease,
necessitating increased thinning to reduce the threat of fire in the
National Forests (Millar and Stephenson 2015, pp. 823-826; Young et al.
2017, pp. 78, 85). However, tree mortality is expected to be lower in
wetter riparian areas along the seeps, springs, and streams that
provide habitat for the Kern Canyon slender salamander and the
relictual slender salamander.
The majority of forest roads in the National Forests of the Sierra
Nevada were built between 1950 and 1990 to support major increases in
timber harvest (USFS 2001, p. 443). Most of the impact of timber
harvesting and associated road development on habitats within the
National Forests of the Sierra Nevada took place during the expansion
period in the latter half of the 20th century. Over the last 20 years,
timber harvest in the Sequoia National Forest has decreased
substantially. Timber harvest is now managed by the current land
management plan for the Sequoia National Forest (USFS 2019a, entire).
Current forest standards and guidelines outline timber harvest
practices that maintain minimum forest density requirements and
increase retention of down logs and coarse woody debris, thereby
possibly benefiting the Kern Canyon slender salamander and the
relictual slender salamander by contributing to the availability of
refugia. Current forest standards and guidelines provide protections
for riparian areas, such as maintaining buffers during timber and
vegetation management activities. Further, riparian areas are protected
by mechanical equipment buffers and are generally not harvested.
However, fire suppression has resulted in increased conifer density and
decreased riparian herbaceous vegetation in riparian areas, which may
lead to more timber management in riparian areas in the future (USFS
2019b, pp. 109, 115).

[[Page 63164]]

Although impacts to habitat from timber harvest have the potential
for population-level effects on the Kern Canyon slender salamander and
the relictual slender salamander, at present the best available
information indicates current levels of timber harvest are not
adversely affecting either species. However, the legacy effects of
timber harvest activities such as roads and modified hydrology may
continue to have localized impacts on the habitat condition of some
sites occupied by the Kern Canyon slender salamander and the relictual
slender salamander. Timber harvest to remove dead trees may also
increase in the foreseeable future as a result of increased tree
mortality, further impacting slender salamander habitat, though the
percentage of impacted habitat is expected to be small.
Hazard Tree Removal
The current land management plan for the Sequoia National Forest
may call for removal of hazard trees in areas not suitable for timber
production. Dead and dying trees and living trees that are deemed a
risk to people or property may be removed along roads and trails and
within wildfire areas (USFS 2019a, p. 170). Hazard tree removal is
carried out for safety considerations and is not considered a component
of a timber harvest system or commercial timber harvest. Hazard tree
removal often takes place along existing roads and trails; because this
activity does not necessitate the construction of additional forest
roads, it likely has less impact on salamander habitat than timber
harvest. Hazard tree removal may reduce fuel loads and thereby reduce
the risk of high-severity wildfire within habitat occupied by the Kern
Canyon slender salamander and the relictual slender salamander. As many
of the sites occupied by the salamanders are near roads and trails,
hazard tree removal is expected to occur at some of these sites within
habitat occupied by both species. However, despite the impacts to
salamander habitat, hazard tree removal is unlikely to result in
salamander mortality as it does not generally involve the use of heavy
equipment off existing roads and trails.
Hazard tree removal results in localized effects on the habitat of
the Kern Canyon slender salamander and the relictual slender salamander
where removal of trees occurs in proximity to habitat occupied by the
species and results in modification of seep, spring, or creek margin
habitat. Hazard tree removal of dead and dying trees that are a risk to
people or property may increase in the foreseeable future as a result
of increased tree mortality, though the amount of habitat impacted by
hazard tree removal is expected to be small.
Infrastructure Development
Infrastructure development has had the greatest historical impact
on habitat occupied by the relictual slender salamander and the Kern
Canyon slender salamander. Damming of the Lower Kern River to form
Isabella Lake in 1953 flooded areas in the Lower Kern River Canyon and
prompted construction and expansion of State Route 178 and ongoing
recreation development along the Lower Kern River. Flumes, tunnels,
roads, and trails associated with the operation of the Kern River No. 1
hydroelectric project and two placer mining claims are also present
along the Lower Kern River within the historical range of the relictual
slender salamander and the range of the Kern Canyon slender salamander
(USGS 2021a, pp. 1-3; USGS 2021b, pp. 1-3).
Ongoing maintenance is required for utility infrastructure
including communication sites in the Lower Kern River Canyon and on
Breckenridge Mountain and transmission lines and an electrical subunit
in the Lower Kern River Canyon within the Sequoia National Forest.
Maintenance of utilities can often be carried out from roads or already
disturbed corridors where the Kern Canyon slender salamander and the
relictual slender salamander are not expected to be found. However,
utility crews may need to access off-road sites where the salamanders
are found to replace or perform work on power poles. Equipment used for
utility maintenance may cause direct mortality of salamanders by
crushing salamanders that are active on the surface or damage habitat
by altering seeps and springs. Infrastructure development associated
with recreation, roads, hydroelectric projects, and utility maintenance
has the potential to cause periodic habitat disturbance to sites
occupied by the relictual slender salamander and the Kern Canyon
slender salamander with impacts likely concentrated within the Lower
Kern River Canyon.
There has been discussion of a future large infrastructure project
involving construction of a proposed reservoir within the estimated
range of the Kern Canyon slender salamander; however, the project is in
the preliminary planning process (Service 2022a, p. 27). Implementation
of the proposed project within the range of the species could degrade
seep and spring habitat. However, no information is available to
suggest that infrastructure development associated with this project
will take place within the habitat of the Kern Canyon slender
salamander and the relictual slender salamander. Overall, though
infrastructure development has affected the two species in the past,
current impacts are limited to occasional maintenance activities in
limited areas of the species' range, and we do not expect that there
will be population-level impacts now or in the foreseeable future.
Fire
Fire is a natural ecological process, and fires within the natural
range of variation are generally considered beneficial to ecosystems in
the Sierra Nevada. Over the long term, small, low-severity fires can
improve habitat for fire-adapted plant species, create vegetation
mosaics, and support nutrient cycling, thereby increasing resiliency of
slender salamander habitat (Safford et al. 2012, entire). In contrast,
very large fires with patches that burn at high severity, outside the
natural range of variation, can remove forest cover and fragment
habitat over large areas and long time periods.
Current habitat conditions within the ranges of the Kern Canyon
slender salamander and the relictual slender salamander may contribute
to ongoing fire risk. Years of fire suppression in forests of the
western United States have led to greater canopy cover from small and
medium trees, higher biomass density, and more surface fuels (Parks and
Abatzoglou 2020, p. 4). Historically, the mean fire return interval
within the Sierra Nevada was 11-16 years with a mean fire size between
200-400 ha (494-988 ac) and with 5 to 15 percent of that area burning
at high severity (Safford and Stevens 2017, p. 7). Fire suppression
over the last 100 years combined with extended droughts has led to
increased fuel loads and changes in fire behavior with larger, more
severe fires, and longer wildfire seasons in recent years (Miller and
Safford 2012, p. 41; Mallek et al. 2013, p. 1; Safford and Stevens
2017, pp. v-vi; Nigro and Molinari 2019, p. 20).
From 1984 to 2017, forests in the western United States have
experienced an eightfold increase in the annual area burned at high
severity (Parks and Abatzoglou 2020, p. 4; Service 2022a, figure 8).
Current fire return intervals within the estimated ranges of the Kern
Canyon slender salamander and the relictual slender salamander are 56-
81 years (USFS 2011b, unpaginated). Additionally, the mean size of
fires in the Sierra Nevada over the past 30 years has increased to
approximately 1,400 ha (3,459 ac) with 30 to 35 percent of the

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burn area at high severity (Safford and Stevens 2017, p. 8).
Little is known about the impact of fire on terrestrial salamanders
and their habitat. In general, riparian areas burn less frequently and
at lower severity. However, fires may have large impacts on the Kern
Canyon slender salamander and the relictual slender salamander due to
their low mobility and small range sizes. Fires that burn at low and
moderate severity and occur at low elevations during the dry summer,
when the salamanders are most likely sheltering in underground burrows,
may have minimal effects. However, at higher elevations, salamanders
are thought to be active on the surface during the summer, and fires
that burn at low to moderate severity may result in mortality of
salamanders.
Throughout the range of the Kern Canyon slender salamander and the
relictual slender salamander, high-severity fires are especially likely
to result in direct mortality to both salamanders on the surface and
those sheltered underground, due to radiating heat and loss of soil
moisture, as temperatures at the soil-litter interface can reach 482-
648 [deg]C (900-1,200 [deg]F) (Sampson 1944, p. 62). Individuals more
than a few inches below the soil surface may survive the high-severity
fire but will then have reduced or no surface cover and reduced or no
invertebrate prey community until the landscape recovers. Additionally,
because high-severity fire can reduce canopy cover and remove
insulating groundcover soil, temperatures in the top 10 centimeters
(3.9 in) of soil in recently burned stands can be 5-10 [deg]C (9-18
[deg]F) higher than in late successional stands, affecting the
availability of suitable microclimate conditions for the salamanders
following fires (Liu et al. 2005, p. 8; Treseder et al. 2004, p. 1831).
Furthermore, fire residence time may also influence the impact of
fires on the Kern Canyon slender salamander and the relictual slender
salamander as fires that burn at low severity for a long time may
result in more direct mortality of salamanders than high-severity fires
that move through the area quickly. Post-fire increases in soil
temperature can be accompanied by long-term decreases in soil moisture
and increases in soil water repellency, which may result in dry
conditions that are intolerable for the Kern Canyon slender salamander
and the relictual slender salamander (DeBano 2000, p. 196; Holden et
al. 2013, p. 39). After fires occur, habitat may also be degraded by
increased soil erosion, runoff, and sedimentation (Benavides-Solorio
and MacDonald 2001, entire; Robichaud and Waldrop 1994, entire; Spigel
and Robichaud 2007, entire). More research is necessary to better
understand the relationships between wildfires, salamanders, and their
habitat.
Large, catastrophic fire cannot be completely addressed by
regulatory mechanisms. However, some management actions can reduce the
potential severity or size of wildfires (Agee and Skinner 2005, entire;
Safford et al. 2009, entire). Fuel reduction treatments, such as
prescribed fire and mechanical thinning, can reduce the severity of a
future fire (Agee and Skinner 2005, entire; Safford et al. 2009,
entire). We have a limited understanding of the trade-off between
impacts from conducting fuels treatments to prevent or reduce future
fires and impacts from fires themselves to salamanders and their
habitat (see sections on Timber Harvest and Hazard Tree Removal above).
Fuels treatments that are carried out within habitat occupied by the
salamanders may cause ground disturbance or result in modification of
seep, spring, or creek margin habitat. Two species of terrestrial
salamanders in the Sierra Nevada, the Sierra ensatina (Ensatina
eschscholtzi platensis) and the gregarious slender salamander
(Batrachoseps gregarius), were found to still be present after
prescribed fire applications were conducted in the spring (Bagne and
Purcell 2009, entire). However, fuel reduction treatments may not
prevent catastrophic damage in an extreme fire event (Peterson et al.
2003, p. 3).
Additionally, if a wildfire becomes a threat to infrastructure,
fire retardant may be used in areas occupied by the Kern Canyon slender
salamander and the relictual slender salamander that are in proximity
to development in the Lower Kern River Canyon and on Breckenridge
Mountain. Fire retardants may negatively impact the survival of
salamanders as fire retardants such as polybrominated diphenyl ethers
can decrease survivorship and slow development and growth in amphibians
(Coyle and Karasov 2010, pp. 136-138). Furthermore, post-fire
restoration involving large machinery has the potential to impact
salamander habitat through ground disturbance or result in direct
mortality of salamanders that are active on the surface. Fire and
management activities related to fire suppression and post-fire
restoration may affect the Kern Canyon slender salamander and the
relictual slender salamander through degradation of aquatic, mesic, and
riparian habitats, loss of suitable cool and damp microclimates, loss
of prey, and possibly direct mortality of individuals.
Because of the small ranges of the Kern Canyon slender salamander
and the relictual slender salamander, entire geographic groups could be
extirpated by fire, thus reducing species redundancy, and potentially
causing loss in ecological representation. The mean size and intensity
of fires has increased in the past decades. The trend in increasing
annual area burned at high severity is expected to continue into the
foreseeable future as a result of increasingly warmer and drier fire
seasons due to climate change (Parks and Abatzoglou 2020, p. 6).
Climate Change
Climate change is the change in the mean or variability of one or
more measures of climate that persist for an extended period, whether
the change is due to natural variability or human activity (IPCC 2013,
p. 1450). The climate has been warming at an unprecedented rate since
the 1950s, and is likely to continue to increase, causing not only
warmer conditions but also an increase in the intensity of storms (IPCC
2013, p. 4). The recent changes in climate are attributed to increased
greenhouse gas emissions in the atmosphere, which are likely to
continue to increase (IPCC 2013, pp. 4, 11-12, 19).
In California, the annual average temperatures have increased by
about 0.8 [deg]C (1.5 [deg]F) since 1895 (Kadir et al. 2013, p. 38).
Additionally, extreme heating events have increased throughout the
State (Kadir et al. 2013, p. 48). Specifically, in the Sierra Nevada
region, mean annual temperatures have generally increased by around
0.5-1.4 [deg]C (1.0-2.5 [deg]F) over the past 75-100 years (North 2012,
p. 25). These trends are projected to continue, by all modern climate
models, and to accelerate during coming decades. Within the Sierra
Nevada, changes in climate are expected to vary in magnitude across the
region with quicker warming trends and changes in precipitation at
highest elevations (Dettinger et al. 2018, p. 5). The annual mean
temperatures across the region are projected to warm by 1.0 [deg]C (2.0
[deg]F) by 2039 and by 2.5 [deg]C (4.5 [deg]F) by 2040-2069 as
predicted by the average of 10 climate models (Abatzoglou 2013, entire;
Pierce et al. 2013, p. 844; Hegewisch et al. 2018, unpaginated).
Additionally, in the summer months of June, July, and August, mean
temperatures are projected to increase by 3.3 [deg]C (5.9 [deg]F) by
2040-2069 in the Sierra Nevada region (Pierce et al. 2013, p. 842;
Hegewisch et al. 2018, unpaginated).

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With increasing temperatures and less snowfall, salamanders that
occur at high elevations (such as relictual slender salamanders on
Breckenridge Mountain) may experience extended periods of favorable
conditions and may increase the time they spend on the surface until
climatic conditions approach and surpass physiological limits. While
temperature increases at high elevation may be within the thermal
tolerances of the Kern Canyon slender salamander and the relictual
slender salamander, temperature increases at low elevation may exceed
salamander tolerances (Caruso and Rissler 2019, p. 12). At higher
temperatures, salamanders must increase feeding frequency to maintain
energy balances (Huey and Kingsolver 2019, entire). If salamanders are
not able to increase feeding frequency or if prey are not available in
sufficient quantities, then increased metabolism caused by temperature
increases may have geographic group-level demographic consequences,
such as decreased body sizes and growth rates (Caruso et al. 2014, p.
1,757; Mu[ntilde]oz et al. 2016, p. 8,744). Reductions in body size
could lead to delayed maturity or reduced fecundity, ultimately leading
to geographic group declines.
Future precipitation is predicted to vary less than temperature;
long-term mean annual changes may be no more than plus or minus 10-15
percent of current totals (Dettinger et al. 2018, p. 5). However,
precipitation extremes (both as deluge and drought) are expected to
increase markedly under climate change (Dettinger et al. 2018, p. 5).
As a result of projected warming, the transition from rain to snow
during a storm is expected to rise by 457-914 m (1,500-3,000 ft)
(Dettinger et al. 2018, p. 21). Sierra Nevada snowpacks will be
unlikely to form below about 1,829 m (6,000 ft) elevation, and
snowpacks will be reduced by more than 60 percent across most of the
Sierra Nevada by the end of the century (Dettinger et al. 2018, p. 21).
Losses of snowpack may be even greater due to feedback loops with
warming trends causing snow cover losses, and snow cover losses
resulting in warmer land surfaces, and thus enhanced warming trends in
turn (Dettinger et al. 2018, p. 5). The higher snow-dominated
elevations from 2,000-2,800 m (6,560-9,190 ft) will be the most
sensitive to temperature increases (Point Blue 2011, p. 23). Seeps and
springs fed by snowmelt may dry out or be more ephemeral during the
non-winter months (Point Blue 2011, p. 24). This pattern could
influence groundwater transport, and seeps and springs may be similarly
depleted, leading to lower water levels and decreased area and
hydroperiod (that is, duration of water retention) to support suitable
habitat for the Kern Canyon slender salamander and the relictual
slender salamander. More precipitation falling as rain and increased
early snow melt is also expected to result in greater winter streamflow
and floods that may impact salamander habitat by causing erosion of
salamander habitat in stream margins (Dettinger et al. 2018, p. 5).
As a result of warmer temperatures, with corresponding tendencies
for more rainfall, less snowfall, and earlier snowmelt, water will tend
to exit bodies of surface water at high elevations earlier in the year
(Harpold et al. 2015, entire). Additionally, the water that remains in
habitats will evaporate and be used by plants more quickly due to
warmer temperatures and increased evapotranspiration rates, so that by
summer, soil moisture will be low (Harpold et al. 2015, entire). The
average historical climatic water deficit, or the additional water that
would have evaporated or transpired had it been present in the soils
given the temperature, from 1990 to 2010 in the southern Sierra Nevada
within the range of the Kern Canyon slender salamander and the
relictual slender salamander is 840.6 mm (33.1 in) (Hegewisch et al.
2018, unpaginated). By 2039, the 20-year average climatic water deficit
is projected to increase by 2.0-69.1 mm (0.1-2.7 in) and, by 2069, the
20-year average is projected to increase by 75.6-200.9 mm (3.0-7.9 in)
(Hegewisch et al. 2018, unpaginated). Furthermore, total soil moisture
in the summer is expected to decrease in areas at high elevation on
Breckenridge Mountain (Hegewisch et al. 2018, unpaginated).
The Kern Canyon slender salamander and the relictual slender
salamander will likely be impacted by climate change, but the full
extent of impacts that climate change may have on terrestrial
salamanders is poorly understood. Changing climatic conditions may have
direct impacts on salamander physiology, survival, reproduction,
recruitment, and population growth. Additionally, climate change may
have indirect impacts on the species including changes in habitat
quantity and quality, and prey distribution and abundance. For the Kern
Canyon slender salamander and the relictual slender salamander to
successfully forage and meet their energy requirements, temperature and
moisture conditions must be suitable in adequate durations. Reduced
sedimentary moisture may impact the survival of the Kern Canyon slender
salamander and the relictual slender salamander by further constraining
the time that the salamanders can be active on the surface. Reduced
ambient moisture may also decrease the amount of suitable microhabitat
for breeding and rearing as the salamanders are thought to need cool
and damp protected microhabitat for egg laying. Additionally, warmer,
and drier fire seasons due to climate change are predicted to result in
more frequent fires burning at high severity (Parks and Abatzoglou
2020, entire).
Overall, the Sierra Nevada region is likely to be much drier in the
future and the climatic water deficit will increase over the next 50
years due to climate change (Dettinger et al. 2018, p. 23; Hegewisch et
al. 2018, unpaginated). Climate change is expected to affect the Kern
Canyon slender salamander and the relictual slender salamander through
degradation of seep and spring habitat, loss of suitable microhabitat
conditions, and possibly, reduction in survival and fecundity of
salamanders with risk varying across habitat type and elevation.

Conservation Efforts and Regulatory Mechanisms

The Kern Canyon slender salamander is listed in the State of
California as a threatened species. As a threatened species under the
CESA, ``take,'' which is described as hunt, pursue, catch, capture, or
kill, or attempt to hunt, pursue, catch, capture, or kill, of the Kern
Canyon slender salamander is prohibited. The relictual slender
salamander is designated as a California Species of Special Concern.
The Species of Special Concern designation carries no formal legal
protection; the intent of the designation is to focus attention on
animals of conservation risk, stimulate research on poorly known
species, and achieve conservation and recovery of these animals before
they meet criteria for listing as threatened or endangered.
The Kern Canyon slender salamander and the relictual slender
salamander are designated by the USFS as Species of Conservation
Concern. The USFS land management plans are designed to consider the
needs of the Species of Conservation Concern and guide management that
sustains habitat or conditions to support or restore populations of
Species of Conservation Concern. While the current draft land
management plan for Sequoia National Forest does not include specific
measures for the Kern Canyon slender salamander or the relictual
slender salamander, the land management plan outlines desired habitat
management conditions for riparian areas which,

[[Page 63167]]

upon implementation, will provide a habitat benefit for the species.

Current Condition

We describe the current condition of the Kern Canyon slender
salamander and the relictual slender salamander by characterizing their
status in terms of resiliency, redundancy, and representation. We
analyze the current conditions of each geographic group of each species
by considering the threats and their effects on individual and
population needs. The analysis of the current condition of each
geographic group, which we use as a proxy for populations due to
limited data on the two species, allows us to assess geographic group
resiliency.
There are no population estimates for the Kern Canyon slender
salamander or the relictual slender salamander. In the absence of
population estimates, our analysis of the current condition of
geographic groups is limited to the available records of observations
for the species and the distribution of threats across the landscape.
Many of the recorded observations of the species are from sites that
were surveyed only once 30-40 years ago, and we have no more current
information on the presence or absence of individuals from these sites.
In these cases, there is uncertainty in assessing the current condition
of the salamanders at the site. The lack of information on population
size and structure of the Kern Canyon slender salamander and the
relictual slender salamander and the absence of robust records of
observations contributes to uncertainty in the analysis of the current
condition of the species.
Kern Canyon Slender Salamander Current Condition
As discussed above in Background, the Kern Canyon slender
salamander is currently considered extant at 8 sites in the Lower Kern
River Canyon geographic group and the Erskine Creek Canyon geographic
group. Species experts indicate that the sites within the Lower Kern
River Canyon have been searched for the species in recent years;
however, the species has not been found during these searches (Jockusch
2021b, pers. comm.). Because survey results are reported only when the
species is present (that is, a positive survey) and not reported when
the species is not encountered (that is, a negative survey), our
analysis of the current condition of the species is limited to only
positive surveys. Without documentation of negative surveys at these
locations, we are unable to determine whether the species has been
extirpated from these areas or if the species is still present but the
current level of survey effort is inadequate to detect them. Species
experts also indicate that the abundance of the species has declined
across the range of the species (Jockusch 2021b, pers. comm.).
Furthermore, the Kern Canyon slender salamander is currently found in
wet patches of habitat in riparian habitat and the species no longer
seems to occupy open grassland habitat (Jockusch 2021b, pers. comm.).
Lower Kern River Canyon Geographic Group--The Lower Kern River
Canyon geographic group is composed of 11 historically occupied sites
in the small streams, seeps, and springs adjacent to the Lower Kern
River, south of Isabella Lake to Stark Creek. Communication with
species experts indicates that the Kern Canyon slender salamander may
be largely or entirely extirpated from the nine sites within the Lower
Kern River Canyon that are to the west of the two easternmost sites
near Miracle Hot Springs (Jockusch 2021b, pers. comm.). Roads,
recreation, grazing, infrastructure, fire, and climate change are
currently impacting this geographic group.
Development and roads (including State Route 178) are present
throughout the Lower Kern River Canyon. The area has high recreation
use with many access roads, trails, and camping areas (Service 2022a,
figure 16). Dispersed camping was prohibited at some camp sites along
the Lower Kern River beginning in the 1980s; therefore, impacts of
recreation in this area have likely decreased since that time. Grazing
takes place throughout the Lower Kern River Canyon and sensitive canyon
bottom habitat has been degraded by ground disturbance and trampling by
livestock (USFS 2011a, p. 44; Service 2022a, figure 17). However,
between 2003 and 2004, three springs within Dougherty Canyon were
fenced to exclude livestock and to protect the riparian vegetation
associated within the area of three of the sites occupied by Kern
Canyon slender salamander (USFS 2011a, p. 76).
Commercial timber harvest has not occurred in the area (Service
2022a, figure 18). However, tree mortality associated with drought and
insect outbreaks has occurred in proximity to occupied sites, which may
result in timber harvest to remove dead trees and hazard tree removal
along State Route 178, USFS roads, or trails. Additionally, there is an
electrical substation within 1,100 m (3,609 ft) of the easternmost site
of this geographic group, and a transmission line runs south from the
substation passing within 900 m (2,953 ft) of the same site (Service
2022a, figure 20). The impact of maintenance of this utility
infrastructure on Kern Canyon slender salamander habitat may be low due
to the distance between the utility infrastructure and the patches of
habitat occupied by the species. From 1988-2017, this geographic group
experienced frequent fires at a range of severities that may have
impacted the condition of habitat (Service 2022a, figure 21). Moreover,
fire suppression has affected riparian habitat by increasing conifer
density and decreasing riparian herbaceous vegetation (USFS 2019b, p.
104). The fire threat remains high to very high throughout the canyon
(Service 2022a, figure 22).
No information is available on dispersal or the availability of
mates within the Lower Kern River Canyon. However, species experts have
opined that the abundance of the Kern Canyon slender salamander has
declined across its range (Jockusch 2021b, pers. comm.). Additionally,
all sites are 300 m (984 ft) or more apart, and a high density of roads
and trails extends throughout the canyon. Therefore, dispersal and
access to mates in this geographic group is likely limited given the
poor dispersal ability of slender salamanders and the small numbers of
individuals that have been observed in the Lower Kern River Canyon.
Considering the threats currently impacting this species, the habitat
characteristics of seeps, springs, and streams; cool, damp
microhabitats; and debris are likely degraded.
Overall, the resiliency of the Lower Kern River Canyon geographic
group is reduced from historical conditions due to the possible
extirpation of the species from many sites within the geographic group
and ongoing threats to habitat from road construction and maintenance,
recreation, grazing, fire, infrastructure development, and climate
change.
Erskine Creek Canyon Geographic Group--The Erskine Creek Canyon
geographic group is made up of four sites along Erskine Creek, two
sites along Bodfish Creek, and one site near Eagle Peak in the Piute
Mountains. This geographic group is likely small due to the patchy
habitat distribution and the small number of individuals that have been
observed over limited surveys. Dispersal may be limited as the occupied
sites within this geographic group are separated by 350 m (1,148 ft),
which is greater than the maximum distance traveled by slender
salamanders. However, due to the presence of contiguous suitable
habitat between the closest occupied sites along Erskine Creek, it is
possible that the creek and associated riparian habitat may facilitate
dispersal of the Kern

[[Page 63168]]

Canyon slender salamander among sites along the creek.
This geographic group experiences many of the same threats that
were described for the Lower Kern River Canyon geographic group, though
the sites of this geographic group are set back and separated from
State Route 178, the electrical substation, and power lines. However,
dirt roads run along both Erskine Creek and Bodfish Creek. Fires of
moderate and high severity in 1984 and 2010 likely degraded habitat in
this geographic group (Service 2022a, figure 21), and the fire threat
remains very high throughout the area (Service 2022a, figure 22).
Additionally, this geographic group is outside of Sequoia National
Forest, so the Kern Canyon slender salamander does not receive the same
conservation measures as it does in Sequoia National Forest. Overall,
the current condition of this geographic group is likely better than
the Lower Kern River Canyon geographic group as habitat outside of the
Lower Kern River Canyon is less impacted by recreation and grazing.
However, less is known about land management outside of the National
Forest. The resiliency of this geographic group is likely reduced from
historical conditions due to reduced abundance across the range of the
species as well as past and ongoing habitat degradation from road
construction and maintenance, fire, and climate change.
Kern Canyon Slender Salamander Current Condition Summary--Overall,
there is uncertainty in the current condition of both geographic groups
as there is limited recent information on this species. The resiliency
of the two geographic groups is likely reduced from historical
conditions due to the existing threats to the species, especially
within the Lower Kern River Canyon, and the decline in abundance of the
species across its range. Additionally, the species may be largely or
entirely gone from many sites within the Lower Kern River Canyon. The
redundancy of the species is likely reduced from historical conditions,
as the species currently occupies fewer sites that are distributed over
a narrower range. In relation to the scale of catastrophic events that
are likely to occur, such as the size of fires, the redundancy of the
species is limited. In terms of representation, the species is no
longer found in open grasslands. Therefore, the species may currently
persist in a limited ecological setting that is reduced from historical
conditions.
Relictual Slender Salamander--Current Condition
As discussed in Background, the relictual slender salamander
historically occupied 13 sites that we categorized into three
geographic groups: the Lower Kern River Canyon geographic group, the
Lucas Creek geographic group, and the Squirrel Meadow geographic group.
The relictual slender salamander is presumed to be extirpated from all
sites within the Lower Kern River Canyon geographic group. The two
extant geographic groups are associated with patchy mesic habitat in
conifer forest and oak woodland on Breckenridge Mountain (Hansen 2021,
pers. comm.). The habitat currently occupied by the species is
estimated to consist of less than 0.4 ha (1 ac) (Hansen 2021, pers.
comm.). The current condition of the relictual slender salamander has
been impacted by road construction, grazing, timber harvest, hazard
tree removal, fire, and climate change.
Lucas Creek Geographic Group--The Lucas Creek geographic group is
composed of three sites near Lucas Creek on Breckenridge Mountain.
Within this geographic group, relictual slender salamanders have been
observed only in pairs or small numbers. It is unknown whether
dispersal occurs among sites within this geographic group. The occupied
sites are separated by 350 m (1,148 ft) or more, which is beyond the
maximum distance traveled by slender salamanders (18.3 m (60.0 ft)
(Cunningham 1960, p. 96). However, Lucas Creek and associated riparian
and meadow habitats may facilitate dispersal of relictual slender
salamanders to occupied sites that are found along the creek and its
tributaries. Dispersal between the Lucas Creek geographic group and the
Squirrel Meadow geographic group is not thought to occur regularly as
the geographic groups are separated by 5 km (3.1 mi).
The threats that are likely currently impacting this geographic
group are road construction and maintenance, recreation, timber
harvest, hazard tree removal, grazing, fire, and climate change. A
county road runs between the sites in this geographic group and there
are several USFS roads and trails throughout the area (Service 2022a,
figure 10). All sites are within the Breckenridge grazing allotment
(Service 2022a, figure 11). Grazing is allowed from April 1 to October
15, when salamanders on Breckenridge Mountain have been found active on
the surface (Stewart 2010, p. 10). USFS timber harvest has taken place
near all sites within this geographic group in 1987, 1988, 1996, and
2013, and habitat at these sites may still be impacted by legacy
effects of these timber harvests (Service 2022a, figure 12).
Additionally, extensive tree mortality necessitating hazard tree
removal has occurred near Lucas Creek and its tributaries (Service
2022a, figure 13). This geographic group has not been impacted by fire
since 1984. However, the fire threat as measured by CAL FIRE is high to
very high at the sites within this geographic group (Service 2022a,
figure 14, figure 15).
Considering the ongoing threats to this geographic group and the
impacts of these threats, the habitat characteristics of seeps,
springs, and streams; cool and damp microhabitat; and debris may be
degraded. Dispersal may be restricted by the distance between occupied
sites and the presence of roads, trails, and timber harvest. Regarding
resiliency, this geographic group may be vulnerable to stochastic
events because of its small size and the ongoing threats to habitat.
Squirrel Meadow Geographic Group--The Squirrel Meadow geographic
group includes five sites occupied by the relictual slender salamander
on Breckenridge Mountain to the east of Lucas Creek. We lack specific
information on the exact location of the three sites associated with
Mill Creek and the site within the Flying Dutchman drainage (table 1).
At the site northeast of Squirrel Meadow, the relictual slender
salamander is found within a strip of moist habitat about 1 m (3.3 ft)
wide that is sustained by a seep (Jockusch 2021a, pers. comm.). The
habitat at this site was damaged when a logging road was rerouted
through the seep in the early 1980s (Jockusch et al. 2012, p. 18).
Following these events, only four relictual slender salamanders were
found at the site in 1983 and no individuals were found at the site
during targeted searches over the following 20 years (Jennings and
Hayes 1994, p. 24; Jockusch et al. 2012, p. 18; CNDDB 2022,
unpaginated). A subsequent wildfire in 1988 that burned at low and
moderate severity further compromised habitat at the site (Service
2022a, figure 14; Jockusch et al. 2012, p. 18).
In recent years, the relictual slender salamander appears to have
rebounded at the site, as 15 salamanders were found in 2017 and 7
salamanders were observed in 2021 (Jockusch 2021a, pers. comm.;
Jockusch 2021b, pers. comm; CNDDB 2022, unpaginated). Additionally, 9
of the salamanders found in 2017 were gravid females that were found
associated with a communal

[[Page 63169]]

nest with at least 200 eggs (Jockusch 2021a, pers. comm.).
Road construction, timber harvest, hazard tree removal, fire,
climate change, and possibly grazing have impacted the relictual
slender salamander in this geographic group. As mentioned above, a USFS
road runs directly through the seep that provides important habitat for
this geographic group, and other roads are located adjacent to the site
(Service 2022a, figure 10). The site northeast of Squirrel Meadow is
outside of the boundaries of USFS grazing allotments (Service 2022a,
figure 11). However, other sites are within the Breckenridge grazing
allotment (Jockusch 2021b, pers. comm.). Additionally, timber harvest
in 2013 and extensive tree mortality have occurred along the roads near
the site northeast of Squirrel Meadow (Service 2022a, figure 12, figure
13). The fire threat is very high for this geographic group (Service
2022a, figure 15). Dispersal among sites in this geographic group is
unknown but may be limited between sites that are within different
drainages and separated by roads.
Considering the past threats that considerably altered habitat and
the ongoing threats of road maintenance, grazing, fire, and climate
change, the habitat characteristics of seeps, springs, and streams;
cool and damp microhabitats; and debris are likely degraded. Overall,
the resiliency of this geographic group is reduced from historical
conditions due to habitat degradation and the ongoing threats to the
habitat.
Relictual Slender Salamander Current Condition Summary--Of the
three known geographic groups of the relictual slender salamander, two
are extant and one is presumed to be extirpated. The two extant
geographic groups, Lucas Creek and Squirrel Meadow, are both on
Breckenridge Mountain and are approximately 5 km (3.1 mi) apart. The
extant geographic groups are composed of only a few occupied sites that
have been impacted by stressors and continue to be influenced by some
stressors. Therefore, the geographic groups likely have reduced
resiliency from historical conditions. In terms of redundancy, the
ability of the species to withstand catastrophic events, we note that
the species has reduced redundancy from historical conditions as the
species occupies fewer sites that are distributed over a smaller area
due to the extirpation of the Lower Kern River Canyon geographic group.
In relation to the scale of catastrophic events that are likely to
occur, such as the size of recent fires in the Sierra Nevada region,
the redundancy of the species is very limited, and one fire could
result in extinction of the species. The extirpated Lower Kern River
Canyon geographic group included characteristics that were unique to
the geographic group including habitat at lower elevation and
salamanders that exhibited different periods of seasonal surface
activity. The species may have lost genetic and ecological diversity
through the extirpation of the Lower Kern River geographic group. Both
extant geographic groups are found in similar habitat at high
elevations on Breckenridge Mountain. Therefore, in terms of
representation, the species currently exists in a limited ecological
setting that is reduced from historical conditions.

Future Condition

We now will present our analysis of the future conditions of the
Kern Canyon slender salamander, considering how those past and current
factors discussed will continue to act on the species into the future
for our foreseeable future timeframe of 50 years. While our analysis of
the future conditions of the Kern Canyon slender salamander is based on
the best scientific information available, substantial uncertainty
remains in our understanding of these species and how they will respond
to future conditions. The uncertainty in the current distribution and
current condition of the Kern Canyon slender salamander contributes
uncertainty to our assessment of the long-term future viability of the
species.
As part of the SSA, we also developed two future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the relictual slender
salamander. Our scenarios examined possible future impacts of climate
change, timber harvest, hazard tree removal, and fire. Because we
determined that the current condition of the relictual slender
salamander was consistent with an endangered species (see Determination
of Status for the Kern Canyon Slender Salamander and the Relictual
Slender Salamander, below), we are not presenting the results of the
future scenarios in this proposed rule. Please refer to the SSA report
(Service 2022a, pp. 42-50) for the full analysis of future scenarios.
The future scenarios consider the interactive effects of future
climate change, described by RCP scenarios contributed by the Working
Group III to the Fifth Assessment Report and described in the most
recent Synthesis Report of the Intergovernmental Panel on Climate
Change (IPCC 2014, pp. 9, 22, 57). In our future conditions analysis,
we consider the ``intermediate'' emissions scenario of RCP 4.5
(Scenario 1) and the ``very high'' emissions scenario of RCP 8.5
(Scenario 2).
Under both future scenarios, the threats that interact
synergistically with climate change are expected to grow in magnitude
over time with increasing greenhouse gas emissions. The threat of fire
is associated with the effects of climate change, such as increased
drought, lower soil moisture, and decreased snowpack. Therefore, fire
will continue to be a threat into the future with greater fire threat
associated with increasing greenhouse emissions. We expect the pattern
of increasing severity of fire and area burned in fires will continue
to increase into the future under both future scenarios, with greater
increases under Scenario 2. Additionally, timber harvest of dead trees
and hazard tree removal will continue to increase in magnitude in the
future with increasing greenhouse gas emissions, as drought conditions
will continue to weaken trees and make them more susceptible to
herbivory and disease. We do not have information to indicate that the
existing threats of roads, recreation, grazing, and infrastructure will
change in magnitude in the future. Furthermore, we have limited
information on predation of the Kern Canyon slender salamander, but
there is no indication that predation will increase from current levels
in the future. As most of the range of the salamander is within
National Forest lands where it is considered a USFS Species of
Conservation Concern, the USFS is expected to continue to minimize the
impacts of the threats posed by land management activities into the
future. Therefore, these existing threats are expected to persist at
the same magnitude as under the current condition for both future
scenarios.
We examine the resiliency, redundancy, and representation of the
Kern Canyon slender salamander under both plausible scenarios.
Resiliency of geographic groups of this species depends on the
availability of seeps, springs, and streams; cool and damp
microhabitat; small invertebrate prey; and mates; and how these habitat
factors influence species survival, dispersal, fecundity, and
abundance. As we have a limited understanding of the species biology
and the current condition of the species, our ability to predict the
future condition of the species based on changes in availability of
individual and population needs is somewhat limited. However, we can
predict the magnitude

[[Page 63170]]

of threats to the species under the future scenarios and their impact
on the viability of geographic groups of the Kern Canyon slender. We
expect geographic groups of this salamander species to experience
different changes to its habitat under these scenarios. We discuss the
expected future resiliency of each geographic group based on the events
that would occur under each scenario below. We then analyze the overall
resiliency, representation, and redundancy of the species under each
future scenario.
Under Scenario 1, with RCP 4.5 greenhouse gas emissions, moderate
warming and drying will occur throughout the range of the Kern Canyon
slender salamander. Reductions in soil moisture and snow water
equivalent are expected to more than double within 50 years. We expect
these changes in climate will result in reduced water flow and more
arid conditions in slender salamander habitat. Drying will be more
extreme in the high-elevation areas occupied by the species (Dettinger
et al. 2018, p. 5). In these areas, the April 1st snow water equivalent
will be reduced by up to 81 percent in the next 50 years. Reduction in
snowpack will result in reduced water retention and runoff in the
spring and summer, with runoff occurring earlier in the spring. Summer
soil moisture is also projected to decline over time for all geographic
groups of both species. Within 50 years, it is likely that water levels
will be reduced in seeps, springs, and perennial springs, and some
water sources may have truncated periods of water retention.
Additionally, there may be less cool and moist microhabitat at high
elevations. We expect that these changes in hydrology will reduce the
suitability and availability of habitat for the Kern Canyon slender.
Additionally, under Scenario 1, both the threat of fire and the
severity of fires will increase throughout the range of the Kern Canyon
slender salamander. The species and its habitat will also be impacted
by more frequent extreme weather events including winter storms and
flooding. Increased fire and flooding will likely degrade seep, spring,
and stream margin habitat and may result in direct mortality of
salamanders. Additionally, increased tree mortality will lead to an
increase in timber harvest of dead trees and hazard tree removal along
roads and trails. The presence of roads, recreation, grazing, timber
harvest, and infrastructure will continue to impact the species and
their habitat over the next 50 years. The USFS will continue to
minimize impacts to both species within the National Forests; however,
the Kern Canyon slender salamander sites located on private lands are
not afforded the same protections.
Under Scenario 2, higher greenhouse gas emissions past mid-century
(RCP 8.5) will result in greater warming and drying, increased threat
of fire, and greater frequency of extreme weather events than under
Scenario 1. The impacts from roads, recreation, grazing, timber
harvest, and infrastructure are expected to continue to pose a threat
to the Kern Canyon slender salamander and its habitat at the same
magnitude as under the current conditions. The USFS will continue to
minimize impacts to the species within the National Forest; however,
the Kern Canyon slender salamander sites located on private lands are
not afforded the same protections.
Within 50 years, under Scenario 2, extreme weather events will
occur more frequently. Additionally, temperatures and fire threat will
increase, and April 1st snow water equivalent and summer total soil
moisture will decrease to a greater degree than under Scenario 1. These
changes will likely result in reduction of seep, spring, and stream
habitats and suitable microhabitats. Loss of habitat will occur more
often at high elevations where drying will be most severe. The April
1st snow water equivalent is predicted to decrease by up to 99 percent
and summer total soil moisture is predicted to decrease by up to 27
percent at high elevations. Furthermore, prolonged droughts may reduce
the time that the salamanders can be active on the surface without the
risk of desiccation. At higher elevations, temperature increases may
result in extended periods of favorable conditions, and salamanders may
increase their surface activity. However, the dry conditions predicted
under this scenario are expected to restrict the surface activity of
salamanders at higher elevations despite increased temperatures. At
lower elevations, temperature increases may exceed the tolerances of
the species, resulting in restricted surface activity. Restricted
surface activity at all elevations would limit the ability of
salamanders to find prey and mates resulting in lower survival and
fecundity.
The following sections summarize the conditions of the Kern Canyon
slender salamander under both future scenarios based upon the best
available information.
Kern Canyon Slender Salamander--Future Condition
Under Scenario 1 within 50 years, we expect that the water level of
the seeps, springs, and streams that provide habitat for the Kern
Canyon slender salamander will decline resulting in reduced condition
of habitat. Habitat will also continue to be impacted by roads, heavy
recreation use, grazing, infrastructure, and more frequent fires. We
anticipate that the resiliency of both geographic groups will likely be
slightly reduced from the current condition due to this habitat
degradation. In 50 years, we expect that reductions in the quantity and
quality of suitable habitat will result in minor reductions in the
survival and abundance of Kern Canyon slender salamander within both
geographic groups. We expect that the resiliency of both geographic
groups of Kern Canyon slender salamander will be slightly reduced from
the current condition. Both geographic groups are expected to retain
occupied sites and, therefore, the species will maintain its current
level of redundancy. We anticipate the Kern Canyon slender salamander
will also retain ecological representation that is similar to the
current condition. However, the Kern Canyon slender salamander will
continue to be vulnerable to catastrophic events such as fires that are
expected to occur more frequently under Scenario 1.
Under Scenario 2 within 50 years, we expect that the water level of
the seeps, springs, and streams that provide habitat for the Kern
Canyon slender salamander will decline. Additionally, as most sites
occupied by the Kern Canyon slender salamander are located within
narrow canyons along the margins of creeks and streams, habitat within
both geographic groups of the Kern Canyon slender salamander will
likely be degraded by more frequent higher volume precipitation and
flooding events. We expect that this loss of habitat combined with
habitat degradation from the continued impact of high recreation use,
grazing, road, infrastructure, and increased incidence of fire, will
likely result in reductions in survival and abundance of the Kern
Canyon slender salamander within 50 years. As a result, the resiliency
of both geographic groups will likely be reduced from the current
condition. We expect that habitat loss will result in fewer occupied
sites within 50 years. Therefore, within 50 years, we expect that the
redundancy and representation of the species will be further reduced
from the current condition, as the species will occupy fewer sites and
exist in a further limited ecological setting. We anticipate Kern
Canyon slender salamander will be more vulnerable to

[[Page 63171]]

extirpation from catastrophic events under this scenario.

Determination of Status for the Kern Canyon Slender Salamander and the
Relictual Slender Salamander

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range and a ``threatened species'' as a species likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether a species meets the definition of an endangered species or a
threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) Overutilization for commercial, recreational,
scientific, or educational purposes; (C) Disease or predation; (D) The
inadequacy of existing regulatory mechanisms; or (E) Other natural or
manmade factors affecting its continued existence.
In this proposed rule, we present summary evaluations of eight
threats for the Kern Canyon slender salamander and the relictual
slender salamander: roads (Factor A), recreation (Factor A), grazing
(Factor A), timber harvest (Factor A), hazard tree removal (Factor A),
infrastructure development (Factor A), fire (Factor A), and climate
change (Factor E). We also evaluate existing regulatory mechanisms
(Factor D) and ongoing conservation measures.
In the SSA, we also considered four additional threats:
Overutilization due to recreational, educational, and scientific use
(Factor B); disease (Factor C); predation (Factor C); and effects
associated with small population size (Factor E). We concluded that, as
indicated by the best available scientific and commercial information,
these threats are currently having little to no impact on either the
Kern Canyon slender salamander or the relictual slender salamander, and
thus their overall effect now and into the future is expected to be
minimal. However, we consider them in the determination for each
species, because although these minor threats may have low impacts on
their own, combined with impacts of other threats, they could further
reduce the already low number of Kern Canyon slender salamanders and
relictual slender salamanders. For full descriptions of all threats and
how they impact the species, please see the SSA report (Service 2022a,
pp. 20-31).
For the purposes of this assessment, we considered the foreseeable
future to be 50 years. This time period represents our best
professional judgment of the foreseeable future conditions related to
the range of available climate change models and for reasonable
extrapolations of current trends.

Kern Canyon Slender Salamander: Status Throughout All of Its Range

The Kern Canyon slender salamander is a narrow endemic that
inhabits a limited range, with individuals recorded from a small number
of sites along the Lower Kern River Canyon and associated creeks. The
species has been extirpated from multiple historically occupied sites
within the Lower Kern River Canyon due in part to effects associated
with road construction from the widening of State Route 178 (Factor A).
The species also has reduced representation from historical conditions,
as it is no longer found in grassland habitats.
Currently, habitat supporting the Kern Canyon slender salamander is
affected by recreation (Factor A), grazing (Factor A), and continuing
hydrologic effects associated with roads. These threats continue to
degrade the seep and spring habitat, and in some rare cases may result
in direct mortality of individual Kern Canyon slender salamanders.
Occupied areas in the lower Kern River Canyon are particularly affected
by recreation and OHV use. Commercial timber harvest (Factor A) is
having only a minimal impact on the Kern Canyon slender salamander, as
less than one percent of the species' range is subject to timber
harvest. Hazard tree removal (Factor A) and timber harvest of dead
trees is currently minimally impacting the Kern Canyon slender
salamander as hazard tree removal only impacts small areas of habitat
and is unlikely to result in mortality. Fire (Factor A) currently
presents one of the largest risks to the Kern Canyon slender
salamander. The threat of fire in Kern Canyon slender salamander
habitat is high to very high throughout the range of the species, and
few regulatory mechanisms are available to address the risk of
catastrophic wildfire to the species.
Many of the effects associated with the other threats impacting the
species are being reduced in magnitude due to regulatory mechanisms
(Factor D) implemented by Sequoia National Forest. Sensitive riparian
areas have been gated from OHVs and fenced off from livestock.
Although the Kern Canyon slender salamander is currently being
impacted by these threats and has been extirpated from some sites in
the Kern Canyon geographic group, the species continues to occupy
habitat spread throughout multiple drainages and at a range of
elevations (2,350-5,500 ft (716-1,676 m)). Therefore, the species
currently has sufficient redundancy and representation to withstand
loss from a catastrophic event such as wildfire. Although the threats
described above are continuing to degrade the seep, spring, and stream
habitat that supports the Kern Canyon slender salamander, the species
maintains some population resiliency, redundancy, and representation.
Additionally, regulatory mechanisms implemented by the Sequoia National
Forest are reducing the magnitude of threats, and State listing under
CESA provides additional take prohibitions for the species. For that
reason, we found that the Kern Canyon slender salamander is not
endangered throughout all of its range. However, we expect that threats
affecting the species will increase in magnitude into the future. We
analyzed threats under two plausible future scenarios: the
``intermediate'' emissions scenario of RCP 4.5 (Scenario 1) and the
``very high'' emissions scenario of RCP 8.5 (Scenario 2). Under both
plausible future scenarios, climate change (Factor E) is expected to
reduce the water level of the seeps and springs that support the Kern
Canyon slender salamander. Habitat will also continue to be impacted by
roads, recreation, and grazing. Climate change is expected to intensify
tree mortality and fire, potentially increasing the need for timber
harvest and hazard tree removal. Given the high risk of fire in the
species' range, more populations could be lost to fire, and under
Scenario 2, more populations are likely to be lost. In all future
scenarios, we expect there will be further reductions in population
resiliency and species redundancy.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that although the Kern Canyon slender salamander has reduced
population resiliency and species redundancy and representation from
its historical condition, it is not currently in danger of extinction
throughout all of its range. However, the magnitude of all threats
across the species' range is expected to increase in the foreseeable
future, particularly as effects associated with climate change increase
the frequency and severity of fire and the need for hazard tree
removal, and the cumulative effect of those threats. Thus, after
assessing the best available

[[Page 63172]]

information, we conclude that the Kern Canyon slender salamander is
likely to become in danger of extinction within the foreseeable future
throughout all of its range.

Kern Canyon Slender Salamander: Status Throughout a Significant Portion
of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578; July 1, 2014) that provided that the Service does not undertake
an analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the Kern Canyon slender salamander, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For the Kern Canyon slender salamander, we considered whether the
threats are geographically concentrated in any portion of the species'
range at a biologically meaningful scale. We examined the following
threats: Roads (Factor A), recreation (Factor A); grazing (Factor A);
timber harvest (Factor A); hazard tree removal (Factor A);
infrastructure development (Factor A); fire (Factor A); overutilization
due to recreational, educational, and scientific use (Factor B);
disease (Factor C); predation (Factor C); effects associated with small
population size (Factor E); and climate change (Factor E). We also
evaluated existing regulatory mechanisms (Factor D). We found that the
Kern Canyon geographic group may have a concentration of threats, as it
faces additional threats due to roads, recreation, and infrastructure.
However, the impact of these threats is only slightly higher in the
Kern Canyon geographic group than in the Erskine Creek geographic
group. Additionally, the Kern Canyon geographic group is within the
boundary of Sequoia National Forest, so although some threats are of a
higher magnitude there, ongoing measures undertaken by the National
Forest are decreasing the impacts of grazing and roads. Thus, neither
geographic group is so reduced or faces such threats that it would be
likely to be in danger of extinction now. Overall, we found no
concentration of threats in any portion of the Kern Canyon slender
salamander's range at a biologically meaningful scale.
Thus, there are no portions of the species' range where the species
has a different status from its rangewide status. Therefore, no portion
of the species' range provides a basis for determining that the species
is in danger of extinction in a significant portion of its range, and
we determine that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
This does not conflict with the courts' holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D.
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we
did not need to consider whether any portions are significant and,
therefore, did not apply the aspects of the Final Policy's definition
of ``significant'' that those court decisions held were invalid.

Kern Canyon Slender Salamander: Determination of Status

Our review of the best available scientific and commercial
information indicates that the Kern Canyon slender salamander meets the
definition of a threatened species. Therefore, we propose to list the
Kern Canyon slender salamander as a threatened species in accordance
with sections 3(20) and 4(a)(1) of the Act.

Relictual Slender Salamander: Status Throughout All of Its Range

The relictual slender salamander has a very narrow range; it is
currently found from 8 sites, and the two extant geographic groups are
separated by less than 5 km (3.1 mi). Historically, the relictual
slender salamander occupied additional sites along route 178 in the
Lower Kern River Canyon, but repeated searches of the area have failed
to find the species, and species experts consider the relictual slender
salamander to be extirpated from that area.
Currently, habitat supporting the relictual slender salamander is
affected by recreation (Factor A), including a known primitive campsite
on Breckenridge Mountain, grazing (Factor A), and continuing hydrologic
effects associated with the small roads that pass through occupied
areas (Factor A). These threats continue to degrade the seep and spring
habitat that supports the species. Grazing is currently occurring in
areas on Breckenridge Mountain during the times when the slender
salamander is active on the surface, further degrading suitable habitat
for the species. Commercial timber harvest (Factor A) has occurred in
both geographic groups, and historical effects of logging may still be
present in occupied habitat. Hazard tree removal (Factor A) and timber
harvest of dead trees also have substantial impact on the species,
particularly in the Lucas Creek area, which has experienced a high
level of tree mortality. Existing sites in both extant geographic
groups, particularly the Lucas Creek geographic group, are also far
enough apart that relictual slender salamanders may not be able to
disperse between occupied sites.
Fire (Factor A) currently presents one of the largest risks to the
relictual slender salamander. The threat of fire in the Lucas Creek
geographic group is particularly high, and the area has not burned
since before 1984. However, effects associated with the other threats
impacting the species are being reduced in magnitude due to regulatory
mechanisms (Factor D) implemented by Sequoia National Forest; for
example, some areas on Breckenridge Mountain have been fenced off from
livestock grazing. However, few regulatory mechanisms are available to
address the risk of catastrophic wildfire to the species, and the range
of the species is limited enough that a single fire could cause the
extinction of the species.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1)

[[Page 63173]]

factors, we find that the resiliency, redundancy and representation of
the relictual slender salamander have been reduced from historical
conditions. Effects of historical threats along with ongoing impacts
from roads, grazing, fire, timber harvest, and hazard tree removal are
continuing to degrade the habitat that supports the species, causing
further reductions in resiliency and redundancy. The relictual slender
salamander exists in a very narrow area in a limited ecological
setting, and a single catastrophic event could cause the species to
become extinct at any time. Thus, after assessing the best available
information, we determine that the relictual slender salamander is in
danger of extinction throughout all of its range. We find that a
threatened species status is not appropriate for the relictual slender
salamander because the magnitude and imminence of the threats acting on
the species now result in the relictual slender salamander meeting the
definition of an endangered species.

Relictual Slender Salamander: Status Throughout a Significant Portion
of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the relictual slender salamander is
in danger of extinction throughout all of its range and accordingly did
not undertake an analysis of any significant portion of its range.
Because the relictual slender salamander warrants listing as endangered
throughout all of its range, our determination does not conflict with
the decision in Center for Biological Diversity v. Everson, 435 F.
Supp. 3d 69 (D.D.C. 2020) because that decision related to significant
portion of the range analyses for species that warrant listing as
threatened, not endangered, throughout all of their range.

Relictual Slender Salamander: Determination of Status

Our review of the best available scientific and commercial
information indicates that the relictual slender salamander meets the
definition of an endangered species. Therefore, we propose to list the
relictual slender salamander as an endangered species in accordance
with sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened 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. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/endangered">https://www.fws.gov/endangered</a>),
or from our Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (for example, 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 these species are 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,
pursuant to section 6 of the Act, the State of California would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Kern Canyon slender salamander and
the relictual slender salamander. Information on our grant programs
that are available to aid species recovery can be found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although the Kern Canyon slender salamander and the relictual
slender salamander are only proposed for listing under the Act at this
time, please let us know if you are interested in participating in
recovery efforts for these species. Additionally, we invite you to
submit any new information on these 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 requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(4)
of the Act 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. If a species is listed
subsequently, section 7(a)(2) of

[[Page 63174]]

the Act 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 affect a listed species or
its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
conferencing with the Service as described in the preceding paragraph
during the time when the Kern Canyon slender salamander and the
relictual slender salamander are proposed for listing include land
management or other landscape-altering activities on Federal lands
administered by the USFS (Sequoia National Forest) whose effects extend
into the species' range, and would adversely affect either species at a
scale and magnitude where their continued existence would be
jeopardized (for example, widespread stream channelization or
diversion, modification of spring openings, diversion of surface or
ground water flow, or other activities that modify large portions of
seep, spring, and stream habitat).
Once these species are listed, the requirement for consultation
with the Service under 7(a)(2) applies. The threshold for consultation
under 7(a)(2) is ``may affect,'' and some examples of Federal agency
actions within the species' habitat that may then require consultation
as described above could include management and any other landscape-
altering activities on Federal lands administered by the USFS (Sequoia
National Forest) and the BLM; issuance of section 404 Clean Water Act
(33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers;
construction and management of pipeline and power line rights-of-way by
the Federal Energy Regulatory Commission; construction and maintenance
of roads, bridges, or highways by the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may 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. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
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 the
species proposed for listing. Based on the best available information,
the following actions are unlikely to result in a violation of section
9 for the relictual slender salamander, if these activities are carried
out in accordance with existing regulations and permit requirements;
this list is not comprehensive:
(1) Vehicle use on existing roads and trails in compliance with the
Sequoia National Forest land management plan.
(2) Recreational use with minimal ground disturbance (for example,
hiking, walking) in compliance with the Sequoia National Forest land
management plan.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act for the
relictual slender salamander if they are not authorized in accordance
with applicable law; this list is not comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) Destruction or alteration of the species' habitat by
modification of spring opening, stream channelization or diversion,
discharge of fill material, draining, ditching, tiling, or diversion of
surface or ground water flow;
(3) Unauthorized modification of riparian areas or disturbance of
rocks and woody debris in riparian areas in which the species is known
to occur;
(4) Incompatible livestock grazing that results in direct or
indirect destruction of riparian habitat; and
(5) Introduction of nonnative species that compete with or prey
upon the relictual slender salamander species, such as the introduction
of competing, nonnative aquatic animals to the State of California.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Sacramento
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Regarding the Kern Canyon slender salamander, the Act allows the
Secretary to promulgate protective regulations for threatened species
pursuant to section 4(d) of the Act. The discussion below regarding
protective regulations for the Kern Canyon slender salamander under
section 4(d) of the Act complies with our policy.

III. Proposed Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence

[[Page 63175]]

grants particularly broad discretion to the Service when adopting one
or more of the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
In the early days of the Act, the Service published at 50 CFR 17.31
a general protective regulation that would apply to each threatened
wildlife species, unless we were to promulgate a separate species-
specific protective regulation for that species. In the wake of the
court's CBD v. Haaland decision vacating a 2019 regulation that had
made 50 CFR 17.31 inapplicable to any species listed as a threatened
species after the effective date of the 2019 regulation, the general
protective regulation applies to all threatened species, unless we
adopt a species-specific protective regulation. As explained below, we
are adopting a species-specific rule that sets out all of the
protections and prohibitions applicable to the Kern Canyon slender
salamander.
The provisions of this proposed 4(d) rule would promote
conservation of the Kern Canyon slender salamander by encouraging
management of the habitat for the species in ways that facilitate
conservation for the species. The provisions of this proposed rule are
one of many tools that we would use to promote the conservation of the
Kern Canyon slender salamander. This proposed 4(d) rule would apply
only if and when we make final the listing of the Kern Canyon slender
salamander as a threatened species.
As mentioned previously in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they fund, authorize, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species. In addition, section
7(a)(4) of the Act requires Federal agencies to confer with the Service
on any agency action that is likely to jeopardize the continued
existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of Federal actions that are subject to
the section 7 consultation process are actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, a Federal agency's
determination that an action is ``not likely to adversely affect'' a
threatened species will require the Service's written concurrence.
Similarly, a Federal agency's determination that an action is ``likely
to adversely affect'' a threatened species will require formal
consultation and the formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the Kern
Canyon slender salamander's conservation needs. As discussed previously
in Summary of Biological Status and Threats, we have concluded that the
Kern Canyon slender salamander is likely to become in danger of
extinction within the foreseeable future primarily due to grazing,
recreation, fire, and climate change. Section 4(d) requires the
Secretary to issue such regulations as she deems necessary and
advisable to provide for the conservation of each threatened species
and authorizes the Secretary to include among those protective
regulations any of the prohibitions that section 9(a)(2) of the Act
prescribes for endangered species. We find that, if finalized, the
protections, prohibitions, and exceptions in this proposed rule as a
whole satisfy the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the Kern Canyon slender salamander.
The protective regulations we are proposing for the Kern Canyon
slender salamander incorporate prohibitions from section 9(a)(1) to
address the threats to the species. Section 9(a)(1) prohibits the
following activities for endangered wildlife: importing or exporting;
take; possession and other acts with unlawfully taken specimens;
delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce in the course of commercial activity; or
selling or offering for sale in interstate or foreign commerce. This
protective regulation includes all of these prohibitions for the Kern
Canyon slender salamander because the species is at risk of extinction
in the foreseeable future and putting these prohibitions in place will
help to prevent further declines, preserve the species' remaining
populations, and decrease synergistic, negative effects from other
ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the Kern Canyon slender salamander by prohibiting the
following activities, unless they fall within specific exceptions or
are otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the species' remaining populations and

[[Page 63176]]

decrease synergistic, negative effects from other ongoing or future
threats. Therefore, we propose to prohibit take of the Kern Canyon
slender salamander, except for take resulting from those actions and
activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all of the
general exceptions to the prohibition against take of endangered
wildlife, as set forth in 50 CFR 17.21 and certain other specific
activities that we propose for exception, as described below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Kern Canyon slender salamander, are not expected to rise to the level
that would have a negative impact (that is, would have only de minimis
impacts) on the species' conservation. The proposed exceptions to these
prohibitions include:
(1) Fuels management activities that are expected to have
negligible impacts to the Kern Canyon slender salamander and its
habitat, as long as they are conducted or authorized by the Federal
agency with jurisdiction over the land where the activities occur. This
includes fuels management activities developed by a Federal, State,
county, or other entity to reduce the risk or severity of fire in Kern
Canyon slender salamander habitat and to protect and maintain habitat
that supports the species. These activities should be in accordance
with established and recognized fuels management plans that include
measures to minimize impacts to the species and its habitat, and:
(2) Fuels management activities on private lands where there is no
Federal nexus. This exception applies to those situations, whether
currently existing or that may develop in the future, where fuels
management activities are essential to reduce the risk of catastrophic
wildfire, and when such activities will be carried out in accordance
with an established and recognized fuels or forest management plan that
includes measures to minimize impacts to the species and its habitat.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to the conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with the Service in accordance with section 6(c) of the Act, who is
designated by his or her agency for such purposes, would be able to
conduct activities designed to conserve the Kern Canyon slender
salamander that may result in otherwise prohibited take without
additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the Kern
Canyon slender salamander. However, interagency cooperation may be
further streamlined through planned programmatic consultations for the
species between us and other Federal agencies, where appropriate. We
ask the public, particularly State agencies and other interested
stakeholders that may be affected by the proposed 4(d) rule, to provide
comments and suggestions regarding additional guidance and methods that
we could provide or use, respectively, to streamline the implementation
of this proposed 4(d) rule (see Information Requested, above).

IV. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) 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.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) 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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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 pursuant to 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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
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 also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat,

[[Page 63177]]

the Federal agency would be required to consult with the Service under
section 7(a)(2) of the Act. However, even if the Service were to
conclude that the proposed activity would result in destruction or
adverse modification of the critical habit

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.