[Federal Register: August 26, 2008 (Volume 73, Number 166)]
Rules and Regulations]               
[Page 50226-50247]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]




Fish and Wildlife Service

50 CFR Part 17

[FWS-R5-ES-2008-0005; 92220-1113-0000-C6]

RIN 1018-AT37

Endangered and Threatened Wildlife and Plants; Final Rule 

Removing the Virginia Northern Flying Squirrel (Glaucomys sabrinus 

fuscus) From the Federal List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), hereby 

remove the Virginia northern flying squirrel (Glaucomys sabrinus 

fuscus), now more commonly known as the West Virginia northern flying 

squirrel (WVNFS), from the List of Threatened and Endangered Wildlife 

due to recovery. This action is based on a review of the best available 

scientific and commercial data, which indicate that the subspecies is 

no longer endangered or threatened with extinction, or likely to become 

so within the foreseeable future. Habitat regeneration and recovery 

actions have resulted in a reduction in the threats, which has led to: 

(1) A significant increase in the number of known WVNFS captures and 

distinct capture locations; (2) verification of multiple-generation 

reproduction and persistence throughout the range; (3) proven WVNFS 

resiliency; and (4) substantial improvement and continued expansion of 

suitable habitat rangewide.

DATES: This rule becomes effective September 25, 2008.

ADDRESSES: Comments and materials we received, as well as supporting 

documentation used in preparation of this final rule, are available for 

inspection, by appointment, during normal business hours, at our West 

Virginia Field Office, 694 Beverly Pike, Elkins, West Virginia 26241. 

Call (304) 636-6586 to make arrangements.


Coordinator, Northeast Regional Office, 300 Westgate Center, Hadley, MA 

01035 (telephone: 413-253-8628); or Tom Chapman, Field Office 

Supervisor, or Laura Hill, Assistant Field Supervisor, West Virginia 

Field Office (see ADDRESSES).



    The northern flying squirrel, Glaucomys sabrinus, consists of 25 

subspecies, including the Virginia northern flying squirrel, G. s. 

fuscus. Miller (1936, p. 143) first described G. s. fuscus, based on 

specimens collected in the Appalachian Mountains of eastern West 

Virginia. The Virginia northern flying squirrel was listed as 

endangered under the Endangered Species Act (Act) of 1973, as amended 

(16 U.S.C. 1531 et seq.) effective on July 31, 1985 (Service 1985 (50 

FR 26999)). However, it was subsequently determined that a more 

suitable common name for G. s. fuscus is the West Virginia northern 

flying squirrel, due to the majority of the subspecies' range occurring 

in West Virginia; thus, we refer to G. s. fuscus as West Virginia 

northern flying squirrel (WVNFS) throughout the rest of this document. 

Information about the WVNFS' life history can be found in our final 

listing rule (50 FR 26999), the Appalachian Northern Flying Squirrels 

Recovery Plan (Service 1990, pp. 1-11), and the WVNFS 5-year review 

(Service 2006a, pp. 6-10).

Previous Federal Actions

    On December 19, 2006, we published a proposed rule to delist the 

WVNFS (71 FR 75924). Additional information regarding previous Federal 

actions for the WVNFS can be obtained by consulting the subspecies' 

regulatory profile found at: http://ecos.fws.gov/speciesProfile/



    In 1990, the original recovery plan was approved, and at the time, 

the recovery criteria as they apply to the WVNFS were deemed objective, 

measurable, and adequate (Service 1990, p. 19). The original recovery 

criteria were not specifically reviewed or updated in the 2001 recovery 

plan amendment (Service 2001, pp. 1-6). Instead, the focus of the 2001 

amendment was an update to Appendix A, Guidelines for Habitat 

Identification and Management for the WVNFS. Implementation of the 

amended Appendix A guidelines by the Monongahela National Forest (MNF) 

effectively abated the main threat to the squirrel (i.e., habitat loss 

from timber management) throughout the majority of its range, by 

eliminating adverse impacts on all suitable habitat on the MNF without 

having to prove WVNFS presence (Service 2001, pp. 1-6; Service 2006a, 

pp. 3-4).

    Recovery plans are not regulatory documents and are instead 

intended to provide guidance to the Service, States, and other partners 

on methods of minimizing threats to listed species and on criteria that 

may be used to determine when recovery is achieved. There are many 

paths to accomplishing recovery of a species, and recovery may be 

achieved without all criteria being fully met. For example, one or more 

criteria may have been exceeded while other criteria may not have been 

accomplished. In that instance, the Service may judge that, overall, 

the threats have been minimized sufficiently and the species is robust 

enough to reclassify the species from endangered to threatened or to 

delist the species. In other cases, recovery opportunities may have 

been recognized that were not known at the time the recovery plan was 

finalized. These opportunities may be used instead of methods 

identified in the recovery plan. Likewise, information on the species 

may be learned that was not known at the time the recovery plan was 

finalized. This new information may change the extent to which criteria 

need to be met for recognizing recovery of the species. Overall, 

recovery of species is a dynamic process requiring adaptive management, 

and judging the degree of recovery of a species is also an adaptive 

management process that may, or may

[[Page 50227]]

not, fully follow the guidance provided in a recovery plan.

    In the case of the WVNFS, new information on the subspecies has 

been learned that was not known at the time the recovery plan and the 

amendment were finalized. This new information includes habitat 

modeling efforts completed in 2006, completion of a forest plan 

amendment in 2006 with substantial provisions for protection of WVNFS 

and its habitat, our compilation in 2005 of the 20+ years of survey 

data, and our re-analysis of WVNFS persistence and geographic 

distribution based upon them. This new information changes the extent 

to which two of the four Recovery Plan criteria need to be met for 

recognizing recovery of the subspecies. Further details related to each 

recovery criterion are available in the Service-prepared document 

Analysis of Recovery Criteria for the West Virginia Northern Flying 

Squirrel (Service 2007a, pp. 1-16). An attachment to this document, 

``Table 3, Land use designations, restrictions, and primary management 

emphases in WVNFS habitat on the MNF,'' provides supplementary 

information for downlisting criterion number 3. Based on our analysis 

of the best available data, we believe that the intents of the original 

recovery criteria have been met.

    In conjunction with the analysis of the recovery criteria, we 

analyzed the threats to the WVNFS under the framework of the five 

factors established in the Act. This analysis of the threats was based 

in part on the most recent 5-year review of the subspecies completed in 

2006 (Service 2006a, pp. 1-20). This is available at http://

www.fws.gov/northeast/pdf/flysqrev.pdf. A further detailed discussion 

of the five factors is contained in the Summary of Factors Affecting 

the Species section of this rule below.

Summary of Public Comments

    In our proposed rule (71 FR 75924), we requested that all 

interested parties submit information, data, and comments concerning: 

(1) Biological, commercial, trade, or other relevant data concerning 

any threat (or lack thereof) to the WVNFS; (2) additional information 

on the range, distribution, and population size of the WVNFS and its 

habitat; (3) the location of any additional populations of the WVNFS; 

and (4) data on population trends. The comment period was from December 

19, 2006, through April 23, 2007 (71 FR 75924; 72 FR 7852; 72 FR 9913).

    During the 120-day comment period, we received a total of 4,808 

comments. Of these comments, we consider 18 (6 from peer reviewers and 

12 from other sources) to be substantive. The majority of comments 

received were form letters objecting to the proposed delisting rule but 

providing no new or supporting information.

A. Distribution Concerns

    Issue 1--Some commenters asked us to quantify what portion of the 

historical range is currently occupied by WVNFS.

    Response--The historical range of WVNFS essentially corresponds to 

the distribution of old growth red spruce-northern hardwood forest 

(500,000 to 600,000 acres (ac)) prior to logging and fires at the turn 

of the 20th century. Much of the historical red spruce has been 

replaced by northern hardwoods. Current estimates of the amount of 

WVNFS habitat vary widely from 242,000 ac (U.S. Department of 

Agriculture (USDA), Northern Research Station 2006, unpublished map) to 

600,000+ ac (Menzel et al. 2006b, p. 4), across which the WVNFS is 

widely dispersed.

    Historically, the red spruce-northern hardwood forest encompassed 

portions of eight counties, extending from the vicinity of Mount Storm 

(Grant County) in the north, to Cold Knob (Greenbrier County) in the 

south, east to the Allegheny Front (Pendleton and Highland Counties), 

and west to Webster County. Based upon monitoring from 1985 to the 

present, the WVNFS still occupies portions of these same eight 

counties, roughly corresponding to 85 percent of the extent (breadth 

and width) of the historical range. With exception of the extreme 

northern portions of Grant County (roughly 5 percent of the historical 

range), and the area from Briery Knob south to Cold Knob in Greenbrier 

County (collectively less than 10 percent of the historical range), the 

outer boundaries of the current distribution of the WVNFS closely match 

the extent of its historical range (Service 2007a, Figure 1). 

Additional information can be found on page 75926 of the proposed 

delisting rule (71 FR 75924).

B. Population Concerns

    Issue 1--Some commenters expressed concern about an absence of 

population information and trend data. These commenters stated the 

Service had failed to consider population growth, population size, and 

linkages to other populations. Some commenters expressed concern about 

the use of persistence as an indicator of population health or 

stability and noted that the Service had not clearly defined the term 

``persistence.'' The commenters stated that this approach is flawed 

because it is not tied to knowledge of the population, but merely to 

subspecies presence, which can be explained by immigration from other 


    Response--The Service has considered population dynamics when 

assessing the status of the WVNFS using the best available scientific 

data. The Service considers persistence to be the best indicator of 

successfully reproducing populations for this subspecies, given its 

poor detectability, its life history characteristics, and the 20+ years 

of data from presence/absence surveys.

    We define persistence as continuing captures of WVNFS over multiple 

generations at previously documented sites throughout the historical 

range. Because WVNFS first reproduces at 1-2 years, and has a 

relatively short life span, averaging approximately 3 years, 

persistence at a single monitoring site over 5 years indicates 

successful reproduction across multiple (three to five) generations 

(Service 2007c, p. 10). The Service has analyzed presence/absence data 

to determine persistence of WVNFS across its range, taking into 

consideration detectability rates, life span, reproductive capacity, 

dispersal capability, linkages to other populations, and the naturally 

patchy habitat distribution of the subspecies (Service 2007c, pp. 5-6, 

9-11). These data consistently indicate a relatively high degree of 

persistence (roughly 80 percent) across the landscape, and are not 

indicative of a declining population of WVNFS. The data available for 

the remaining landscape (roughly 20 percent) does not represent an 

absence or lack of persistence of the WVNFS, but rather is indicative 

of the WVNFS' life history traits (i.e., elusive and hard to capture). 

Therefore, the data is simply less conclusive. This remaining landscape 

(roughly 20 percent) is still habitat for the WVNFS but success rates 

for capturing the WVNFS are lower. The persistence of WVNFS is likely 

facilitated by immigration. See Issues 2, 3, and 4 and their responses 

under this section for additional information.

    Issue 2--Some commenters believe the Service must conduct a 

Population Viability Analysis (PVA) to identify a minimum viable 

population before a decision on delisting the WVNFS is made. These 

commenters noted that genetics-based computer models of minimum viable 

population sizes generally indicate that population sizes on the order 

of thousands of individuals (low thousands or higher) may be needed. In 

contrast, another commenter submitted a copy of a manuscript by Smith 

and Person (2007, pp. 626-636) that evaluated the estimated persistence

[[Page 50228]]

of a northern flying squirrel subspecies in fragmented habitats in 

southeast Alaska. This commenter concluded that dispersal likely will 

be the key to northern flying squirrel population viability, not total 

population size of individual patches.

    Response--A genetics-based computer model to identify minimum 

population sizes for WVNFS does not currently exist. In our view, there 

is insufficient information available to support an accurate or 

credible genetics-based PVA model for WVNFS, and such an analysis would 

rely upon too many variables whose values would be speculative. Given 

the nature of the WVNFS life history and habitat information currently 

available, we believe that estimates of persistence, and an analysis of 

functional habitat connectivity, are the most credible form of PVA 

analysis. We therefore have done these analyses using the best 

available scientific data (for more detail, see Service 2007c, pp. 5-6, 

9-11) resulting in evidence of persistence and a high degree of habitat 


    We also have considered the recent work by Smith and Person (2007, 

pp. 626-636), who developed a birth-death process model to examine 

persistence of populations of a different northern flying squirrel 

subspecies in hypothetical, old-growth reserves isolated in managed 

landscapes in Alaska. We agree with these authors that functional 

habitat connectivity is more important to WVNFS population viability 

than total population size rangewide, or population sizes of individual 

habitat patches (See Issues 3 and 4 and their responses below).

    Issue 3--Some commenters expressed concerns that habitat reserves 

may be too few, small, degraded, and isolated to support viable 

populations of WVNFS. These commenters emphasized the importance of 

functional habitat connectivity.

    Response--Within the range of the WVNFS in the central 

Appalachians, there are numerous patches of high-quality, second-growth 

red spruce forest, with individual trees that are near maximum size and 

age, within an almost continuous matrix of more highly variable, 

second-growth red spruce and northern hardwood forest conditions. The 

habitat is still relatively well connected from the standpoint of WVNFS 

movement and does not significantly limit dispersal and movements 

(Service 2007c, Figure 1). Within the range of the WVNFS, above 3,200 

feet (ft), approximately 96 percent of the land is forested (627,237 

ac) (USDA Forest Service 2007, unpubl. map). Patch sizes on the MNF 

also are fairly large and connected by numerous forested linkages, 

facilitating the likelihood of WVNFS dispersal (Service 2007c, p. 6, 

Figure 1). For example, radio-tagged male WVNFS and other subspecies of 

northern flying squirrels have demonstrated an ability to make sudden, 

long-distance movements, presumably to find females. Some individuals 

have traveled up to 2 kilometers (1.2 miles) in a night during the 

mating season, which is from late winter to early spring (Smith 2007a, 

p. 871; Menzel 2003, p. 77, 117; Terry 2004, p. 18; Weigl et al. 1999, 

pp. 59-62; Weigl et al. 2002, p. 37, 145).

    Smith and Person (2007) modeled habitat reserve size for northern 

flying squirrels in Alaska. Habitat reserves must sustain individual 

insular populations, or the matrix of managed lands between reserves 

must allow dispersal among reserves to maintain wildlife populations 

within a metapopulation structure (Smith and Person 2007, p. 633). Out 

of an abundance of caution, Smith and Person (2007, p. 628) modeled the 

first scenario to estimate the persistence of northern flying squirrel 

populations occupying isolated fragments of habitat in a matrix of 

unsuitable habitat within a large 2-million-ac landscape in Alaska (p. 


    Lacking conclusive evidence of dispersal, the authors assumed their 

populations were closed (i.e., no immigration or emigration). They also 

assumed the habitat was static (i.e., patch size and patch quality are 

constant over as long as a 100-year period). Neither of these 

assumptions fits the situation in the central Appalachians where many, 

if not most, of the habitat patches containing WVNFS are connected by 

habitat, and through passive and active management, conditions are 

expected to continue improving. In addition, the authors relied heavily 

on 3 years of local demographic data and data from a longer-term study 

in Canada. These demographic data may be dissimilar to those of WVNFS 

in West Virginia and Virginia. For example, the authors used an 

estimated average litter size of 2, which is low compared to the WVNFS 

average litter size of 2.5-3.0 (Reynolds et al. 1999, p. 346; Stihler 

et al. 1998, p. 178). Estimated survival rates also may have been low 

because the value was based on recaptures of tagged individuals, and 

the lack of a recapture does not mean a squirrel has died.

    That said Smith and Person do provide a framework for judging the 

relative magnitude of patch sizes that may be needed for northern 

flying squirrel persistence in large forested landscapes. Smith and 

Person (2007, p. 631, Table 5) estimated that the minimum area of an 

isolated patch of contiguous habitat to confidently sustain populations 

for at least 100 years without immigration/emigration was 11,414 ac 

(4,621 hectares (ha)) (P=0.90). Furthermore, there was a high 

probability that G. sabrinus could persist in smaller ([gteqt]245-ac 

[99-ha]) isolated habitat patches for 25 years without migration (p. 

631). Smith and Person (2007, p. 633) concluded that large reserves may 

not need to be contiguous, because interspersed lower-quality habitats 

can support northern flying squirrels for a short time and likely 

facilitate dispersal between patches of higher-quality habitat (Smith 

and Person 2007, p. 633).

    Because of the many assumptions, described above, of this model, 

which do not transfer well to the central Appalachians, we decided to 

do a coarse comparison of minimum patch sizes. Because the landscape 

for WVNFS appears to have a higher degree of functional connectivity 

than the study area in Alaska, we looked at the total acreages of 

contiguous and connected suitable habitat within each of seven core 

areas. [Five ``core areas'' were identified at the time the 1990 

recovery plan was written (Service 1990. p. 16) as clusters of capture 

sites, and are referred to in the plan as Geographical Recovery Areas. 

Two more clusters were later identified when surveys found additional 

WVNFSs. Collectively these seven areas (hereafter called ``core 

areas'') encompass the entire extant distribution of WVNFS.] Out of an 

abundance of caution, we assumed these seven core areas were 

geographically separated (no immigration/emigration among them), 

although this likely is not the case. Using these conservative 

assumptions, the ``minimum patch size of contiguous habitat'' within 

each core area ranges from 9,353 ac (3,787 ha) for the smallest core 

area (Stuart Knob) to 120,484 ac (48,779 ha) for the largest core area 

(Cheat). Six of the seven core areas exceed the minimum patch size 

identified by Smith and Person (2007, p. 631) as necessary to 

confidently sustain populations for at least 100 years without 

immigration/emigration (11,414 ac or 4,621 ha). Thus we infer that 

there is adequate habitat for persistence of WVNFS populations within 

most, if not all, of the core areas.

    Whereas habitat conditions in Alaska (small, isolated, old-growth 

forest fragments in a matrix of unsuitable habitat) are quite 

dissimilar to those in the central Appalachians (large, well-connected 

patches of predominantly second-growth forest in a matrix of

[[Page 50229]]

suitable habitat), it appears that habitat reserves of sufficient 

quantity, quality, and connectivity exist to sustain populations of 

WVNFS with influences of immigration and emigration. This habitat 

matrix provides a high degree of functional connectivity, as evidenced 

by persistence over multiple generations at monitoring sites across a 

range of forest conditions (Service 2007c, pp. 9-11).

    Issue 4--Some commenters asked the Service to analyze the viability 

of WVNFS metapopulations (multiple, relatively isolated breeding 

units). These commenters cited Weigl (2007, p. 903), who claimed that 

``some second growth stands may well appear to support healthy 

densities of squirrels, but, in reality, are population sinks for 

migrants from neighboring old growth habitats and thus may not 

permanently maintain viable populations.'' These commenters suggested 

the WVNFS may be undergoing a population decline that is influenced by 

source-sink dynamics of meta-population theory.

    Response--In response to this comment, the Service has conducted 

additional analyses to look for evidence of population sinks and 

sources in the central Appalachians. We found no evidence that the few 

remaining old growth patches of habitat in the central Appalachians, or 

other optimal habitat, are operating as potential sources of WVNFS 

recruits that disperse into suboptimal habitat (potential sinks) where 

populations are not sustained. Rather, our analysis of 21 years of 

monitoring shows no evidence of localized extirpation since the 

subspecies was listed. The WVNFS persists in or near all of the 

historical areas where it was originally known at the time of listing. 

Persistence of WVNFS across the range over multiple generations is 

consistently high, consistently distributed across habitat types 

(varying from 70 to 86 percent persistence) and geographic zones 

(varying from 80 to 85 percent persistence), and not significantly 

different from expected values (Smith 2007a, p. 871; Service 2007c, p. 

11, Table 1). Nestlings and juveniles are routinely documented at 

monitoring sites (76 percent of sites) (Service 2007c, p. 9). Because 

WVNFS has a relatively short life span (averaging approximately 3 

years), and first reproduces at age 1 or 2, persistence at a single 

monitoring site over 5 years indicates successful reproduction across 

multiple (3+) generations. In addition, the observed roughly 1:1 sex 

ratio (492 males, 539 females) is within the range needed for normal 

reproductive performance (Service 2007c, p. 11). Males are most likely 

to disperse, presumably to seek females (Ford 2007a). There is no 

indication of a predominance of dispersing males or juvenile males, 

which could be indicative of a meta-population sink dynamic (such as an 

emigration front of individuals leaving former territory), or of a 

meta-population source-dynamic (such as a colonizing front of 

individuals moving into former territory) (Ford 2007a). Collectively, 

these data show a relatively high degree of population stability and 

consistent habitat occupancy across multiple generations.

    Issue 5--Some commenters noted that the chance of capturing a WVNFS 

in a nest box is confounded by a very low rate of occupancy, plasticity 

in nest site selection, availability of nest sites, and relative 

abundance of WVNFS. These commenters state that it is as important to 

understand why an individual is present as to understand why it is not 

present. They state that a major caveat of relying on the nest box data 

as a measure of persistence is that it does not tell us anything about 

the habitat, and that it is impossible to infer what is optimal habitat 

and if it is available and can support the WVNFS.

    Response--The Service agrees that all of the factors mentioned 

above affect the chance of capturing a WVNFS; however, we disagree 

about inferences that can be drawn from persistence data. Continued 

persistence of WVNFS over the past century and occupation throughout 

most of its historical range tell us much about habitat and indicate 

that sufficient quality and quantity of habitat exists regardless of 

what may be perceived as ``optimal'' habitat. Therefore, a strong 

inference can be made regarding habitat suitability based on the 

persistence, successful reproduction, and sex ratios that lack any 

indication of population sink dynamics (Service 2007c, pp 11, Table 1).

    Issue 6--Some commenters cited a paper by Weigl (2007, p. 900) as 

evidence that the WVNFS may have a longer life span than previously 

assumed. These commenters suggested that if this is true, then the 

Service may need to reanalyze reproductive data and conclusions about 


    Response--Weigl (2007, p. 900) referred to a study of a different 

G. sabrinus subspecies in the Pacific Northwest as evidence that WVNFS 

may be relatively long lived. In this study, three squirrels were known 

to be at least 7 years old at recapture; however, the majority of 

squirrels captured were not known to survive beyond 2-3 years (Villa et 

al. 1999, p.39). In the central Appalachians, recapture data for four 

WVNFS suggest the average lifespan is probably about 2 to 3 years (West 

Virginia Division of Natural Resources (WVDNR) and Service 2006, 

unpubl. data). Wells-Gosling and Heaney (1984, p. 4) also noted the 

average longevity of G. sabrinus was probably less than 4 years. Our 

previous conclusions about persistence remain valid based upon an 

average lifespan of 2-3 years.

C. Using the Best Available Science

    Issue 1--Some commenters were concerned about a lack of knowledge 

of the WVNFS life cycle and the consideration of science regarding the 

subspecies' ecology.

    Response--The WVNFS life cycle and ecology is fairly well known 

from numerous studies in peer-reviewed journals, books, and technical 

publications. The Service has considered the best available scientific 

and commercial data regarding WVNFS life history and ecology. For a 

full list of the literature cited in this final rule, please contact 

the West Virginia Field Office (see ADDRESSES).

    Issue 2--Whereas four peer reviewers and some commenters were 

satisfied the best available science and data had been used in the 

development of the proposed rule, two peer reviewers and some 

commenters questioned the quality or interpretation of data used to 

support the proposed rule. These commenters offered manuscripts in 

press, or alternative literature citations or explanations of the data.

    Response--The Service has reviewed the manuscripts in press (now 

subsequently published) and literature citations provided by 

commenters. We have considered and incorporated the information 

provided in these documents where appropriate in this final rule. We 

have incorporated these documents into our administrative record and 

cited them in this rule where appropriate (including, but not limited 

to, sections of the rule dealing with WVNFS population dynamics; 

habitat use, quantity, quality, and connectivity; and climate change). 

The peer-reviewed scientific journal articles, peer-reviewed agency 

reports, and other literature cited in the final rule represent the 

best available science relevant to the decision. None of the 

alternative explanations of the data were as persuasive as the sources 

we have cited in the final rule.

    Issue 3--Some commenters disagreed with a choice of words in the 

summary sections of the proposed rule which referred to ``an increase 

in the number of individual WVNFSs.'' These commenters claimed that 

there is no evidence of an increase, noting that 1,141 captures do not 

represent unique squirrels, because unknown portions

[[Page 50230]]

were recaptures. These commenters conducted an independent analysis of 

a WVNFS electronic database and field data reporting forms. They 

reported inconsistencies in the data base, and concluded there may have 

been as few as 654 unique captures. These commenters believe that such 

a low number of captures of unique individuals diminishes the 

credibility of conclusions reached by the Service about persistence.

    Some commenters also questioned whether an increase in WVNFS 

occupancy was simply a consequence of increased surveys or efficacy of 

survey efforts since listing. One commenter questioned our ability to 

detect a change in habitat occupancy.

    Response--Whereas the proposed rule did identify the total number 

of recaptures (71 FR 75926), the Service agrees that use of the phrase 

``increase in the number if individual WVNFSs'' was not accurate, as we 

have not estimated the size of the WVNFS population. We have corrected 

this wording in the final rule. Based upon data collected through 2005, 

there has been an increase in the total number of known captures, from 

10 at the time of listing, to 1,141 captures at the time of the 

proposed rule, of which there were 78 total recaptures (6.8 percent). 

Due to multiple recaptures of some individuals, these 78 total 

recaptures represent 62 individuals.

    Contrary to the commenters' estimate of 654 unique captures, we 

calculate that there were a total of 908 unique captures (760 unique 

captures of adults and 148 unique captures of juveniles). These 

estimates take into account unique recaptures and unmarked individuals. 

About 8 percent of the adults escaped before they could be marked. 

Also, contrary to the commenters' determination that ``several'' 

nestlings were not tagged, nearly all of the 133 nestlings and about 2 

percent of the 154 juveniles captured were not marked as a 

precautionary measure. Researchers believe that marking small 

individuals with ear tags and/or pit tags is an unnecessary procedure 

that could increase mortality (Stihler 2007). The fact that these 

individuals were not marked is inconsequential when considering that 

there is less than a 5 percent probability of subsequent recapture. 

Rather, the capture of nestlings or juveniles is a good sign of 

reproduction (25 percent of all captures).

    The increase in the number of capture locations is useful in 

evaluating the distribution of WVNFS within its range, but cannot be 

used to estimate population sizes. The number of captures has increased 

with increased survey effort. While the area covered by surveys has 

increased over time, the efficacy of capturing WVNFS remains low. Based 

on original methodologies used at the time of listing, and still 

predominantly in use today, roughly 2 percent of nest box or live trap 

checks result in detection of WVNFS (Terry 2004, p. 46; Service 2006b, 

p. 13). This estimate of detectability is a simple calculation of the 

proportion of nest box or live trap checks that resulted in WVNFS 

capture. We have not used this simple estimate of detectability to 

calculate changes in habitat occupancy over time as suggested by one 

commenter. We evaluated whether the existing data set could be analyzed 

using more rigorous models for estimating detectability and changes in 

habitat occupancy (MacKenzie et al. 2002, pp. 2248-2255; MacKenzie et 

al. 2003, pp. 2200-2207; MacKenzie 2005, pp. 849-860; MacKenzie 2006, 

1568-1584); however, we felt it inappropriate given that model 

assumptions would have been violated and could not be validated. While 

there has been an increase overall in survey area, the techniques used 

were the same and the intensity of work at sites has not varied 

significantly in the past 20 years.

    As a result of these comments, the WVDNR has checked the data base 

against field forms and has made a few minor corrections. These changes 

do not substantially alter previous statistics reported by the Service 

or conclusions reached about persistence.

    Issue 4--Some commenters noted that monitoring sites were not 

randomly selected, which builds in bias. These commenters recommended 

that such data not be used for estimating population.

    Response--The Service acknowledges that monitoring sites were not 

selected randomly. The goal of the presence/absence surveys was to find 

as many WVNFS as possible and to document their range and distribution. 

Consequently, few sites were placed in low-quality habitat, and many 

sites were placed in moderate or high-quality habitat. Because of this 

bias, the Service has not used these data to estimate population sizes, 

but rather to monitor presence/absence and persistence.

D. Genetic Concerns

    Issue 1--Some public commenters were concerned about a lack of 

genetic research that might indicate risks due to isolation (e.g., 

genetic drift, inbreeding) or existence of discrete populations 

meriting ESA protection.

    Response--We considered information from several studies using a 

variety of genetic markers. Allozymic analyses by Browne et al. (1999, 

pp. 205-214) found lower measures of polymorphism and heterozygosity in 

North Carolina, West Virginia, and Virginia populations of G. sabrinus 

compared with other northern flying squirrels, noting that population 

structure in the southeastern States is similar to that of other 

species that occupy habitat islands (Browne et al. 1999, p. 212). 

Similarly, allozyme and mitochondrial DNA data examined by Arbogast et 

al. (2005, pp. 123-133) showed lower diversity of G. s. fuscus and G. 

s. coloratus compared with conspecifics (other flying squirrel 

species), but not relative to populations of the widespread southern 

flying squirrel. Sparks' data from a small number of microsatellite 

loci showed moderate to high gene flow across populations of northern 

flying squirrels in West Virginia, Virginia, and North Carolina (Sparks 

2005, pp. 16 and 23). In addition, the coefficient of inbreeding failed 

to differ between populations at Cheat Mountain, West Virginia, and at 

an unfragmented forested landscape in Washington State (Sparks 2005, p. 

18). Also, no difference in levels of a parasitic helminth (a species 

of parasitic worm commonly found in the intestines of flying squirrels, 

the presence of which is often used as possible indicator of reduced 

fitness) was detected among G. sabrinus and two sympatric tree 

squirrels (Sparks 2005, pp. 19, 62).

    Arbogast et al. (2005, p. 130) and Weigl (2007, p. 902) speculate 

about potential future decreases in genetic diversity due to 

hypothetical habitat reductions. As discussed under Issue 3, Response 

to Comments, Section B--Population Concerns, however, we believe that 

habitat is still relatively well connected from the standpoint of WVNFS 

movements. Interspersed lower-quality habitats that can support 

northern flying squirrels for a short time will also facilitate the low 

levels of dispersal necessary to maintain allelic diversity and 

heterozygosity while conserving local adaptations. Furthermore, Sparks 

(2005, p. 29) suggests that G. sabrinus may have a population structure 

adapted to some degree of inbreeding tolerance.

    In summary, after review of the genetic studies referenced above, 

we have not detected any genetic risk to the WVNFS due to isolation. 

Additionally, we are aware of no genetic, behavioral, ecological, 

morphological, physiological, physical, or other information supporting 

the existence of distinct population segments within the WVNFS.

[[Page 50231]]

E. Habitat Modeling Concerns

    Issue 1--One peer reviewer and some commenters thought the Service 

had applied the Menzel et al. (2006b, pp. 1-10) model outside of its 

intended scope and for purposes not supported by the study the model is 

based upon. Some conclude that the Service is using the model to make a 

case that the agency can accurately predict habitat and WVNFS 

viability, by assuming that the model definitively predicts presence 

and absence.

    Response--Using logistic regression, Menzel et al. (2006b, pp. 1-

10) developed a Geographic Information System (GIS)-based habitat model 

for WVNFS in West Virginia by synthesizing micro- and macro-habitat 

relationship data. The Service has applied this model appropriately to 

gauge the relative abundance and quality of habitat rangewide and to 

broadly estimate the predicted distribution of WVNFS on the landscape. 

We have not assumed that the model definitively predicts presence/

absence of WVNFS. Nor have we argued that predicted habitat ensures 

WVNFS' viability; predicted habitat is only one component. The model 

can give insights, albeit coarse, on habitat quality and its 

distribution across the landscape. As noted in the final listing rule 

(50 FR 26999) and recovery plans (Service 1990, pp. 12-16) for this 

subspecies, the abundance and quality of habitat are keys to the 

recovery of WVNFS because habitat loss and degradation were the main 

factors that led to the subspecies being listed as endangered. We have 

used the model at a landscape level to predict habitat quality and look 

for evidence of sink-source metapopulation dynamics. We have also used 

the model to highlight where managers should conduct follow-up site 

visits to determine actual squirrel habitat or where managers could 

reasonably assume no occupation without a site visit. A manager could 

use Ford et al. (2004, pp. 430-438) at the individual forest stand 

level to verify the quality of the habitat or what the probability 

level of occupation would be for that specific location.

    Issue 2--Some commenters criticized the Menzel et al. (2006b, pp. 

1-10) habitat model for being unverified and untested.

    Response--The model has been verified and tested and proved to be 

quite accurate (81 percent) when the data were subjected to ground-

truthing procedures to determine correct classification rates of 

occupiable and non-occupiable habitat (Menzel et al. 2006b, p. 3-4). 

Staff from the WVDNR and MNF have used the model successfully to 

identify WVNFS habitat, corroborated by additional captures where the 

model had shown a high probability of occurrence.

    Issue 3--Some commenters stated that the Menzel model's prediction 

of habitat from tracking data should have been verified in following 

years (different temporal frame) and on different areas of the range 

(different spatial frame).

    Response--The actual telemetry data used by the Menzel model did 

span several years and different areas. The model is based on actual 

data, which have been verified.

    Issue 4--Some commenters criticized the Menzel model for containing 

several untested assumptions: (a) There is a direct relationship 

between nest box use and preferred habitat; (b) quality of habitat is 

predicted by elevation and vegetative community; and (c) data from 

spring and summer tracking reveals information on habitat use the 

remainder of the year.

    Response--Addressing assumptions (a) and (b), Menzel et al. (2004, 

pp. 355-368; 2006b, pp. 1-10; 2006a, pp. 204-210) does not assert that 

probability of occurrence equates directly to preferred habitat; 

however, there is a clear correlation between high probability habitat 

(>75 percent probability of WVNFS occupancy) and habitat components 

such as red spruce and high elevation that were preferred by radio-

collared individuals (Menzel et al. 2006a, pp. 206-207). Addressing 

assumption (c), data from winter telemetry studies at Snowshoe Mountain 

Resort and Canaan Valley National Wildlife Refuge (Ford et al. 2007 in 

press, pp. 6, 8) are similar to results from spring, summer and fall 

reported by Menzel et al. (2006a, pp. 206-207). Winter data confirm 

that male home ranges are larger than female home ranges and both sexes 

key in on red spruce-dominated habitats for foraging (Ford et al. 2007, 

pp. 4, 6, 7).

    Issue 5--Some commenters stated that the Menzel model was based on 

limited spatial and temporal data from 4 sites and 13 animals; 

therefore, results can be generalized only with great caution.

    Response--The Menzel et al. (2006b, p. 3) model is not based on a 

limited subset of the data, but rather is based on most of the capture 

data through 1999 and most of the telemetry data from WVNFS tracked in 

a variety of stand age-classes and compositions. All squirrels tracked 

for which home range sizes were calculated, had reached home range size 

asymptotes (the point on a graph indicating the minimum number of 

samples needed to calculate maximum home range size), indicating that 

sufficient location data exists to estimate home range size. Moreover, 

WVNFSs were tracked in a variety of poor to excellent habitat 

conditions. This methodology is consistent with similar examples of 

wildlife habitat data being collected from tagged individuals and then 

used in a modeling effort to extrapolate across a larger, but similar 

landscape (for example, Gibson et al. 2004, pp. 75-89; Posillico et al. 

2004, pp. 141-150). The Service believes it has interpreted these data 


    Issue 6--Some commenters stated that the Menzel model is a 

simplification of existing knowledge and does not account for important 

variables in WVNFS biology, such as forest age, structure, tree 

composition, and fungi. These commenters believe the model potentially 

overestimates optimal habitat by treating young forest the same as old 

forest, and by lumping other factors together (moist conditions, high 

rainfall, northern aspects, forest structure, suitable nest sites, food 

sources, etc.) based on elevation and spruce occurrence.

    Response--The Service concurs that Menzel et al. (2006b, pp. 1-10) 

is a simple habitat model that was meant to capture broad aspects of 

WVNFS distribution. The model tends to underestimate higher-quality 

habitat and to overestimate lesser-quality habitat, especially near the 

50 percent predicted probability of occurrence threshold (Ford 2007b). 

However, we still think the model is useful and reasonably accurate for 

gauging the relative abundance and quality of habitat rangewide and for 

predicting the distribution of WVNFS on the landscape, and represents 

the best available scientific and commercial data.

F. Ecosystem and Habitat Concerns

    Issue 1--Some commenters were concerned that delisting the WVNFS 

would jeopardize an entire ecosystem, especially when considering the 

critical role that WVNFS plays in dispersal and persistence of numerous 

fungi which have symbiotic relationships with trees.

    Response--The Service agrees that the WVNFS plays an important role 

in the red spruce-northern hardwood ecosystem (Smith 2007a, p. 862-863; 

Weigl 2007, pp.10-12). Habitat models for this subspecies implicitly 

recognize the symbiosis between WVNFS and tree fungus (Odom et al. 

2001, pp. 245-252; Menzel et al. 2006b, pp. 1-10). The Service does not 

expect that delisting the WVNFS will have negative consequences for the 

ecosystem. The red spruce-northern hardwood ecosystem upon which the 


[[Page 50232]]

depends has substantially recovered and continues to improve (also see 

Issue 4 in this same subsection below). The delisting process signifies 

elimination of endangerment of the WVNFS and elimination of the need 

for the Act's protections. Delisting is a procedural acknowledgement of 

the recovered ecological status of this subspecies and the ecosystem 

upon which it depends.

    Issue 2--One commenter stated that protection of habitat is serving 

as a proxy for the status of the subspecies. Protection of habitat is 

critical to protection of the subspecies but does not ensure recovery.

    Response--While protection of habitat is important to the status of 

the subspecies, it is not serving as a substitute for other factors. In 

analyzing whether the WVNFS has recovered, the Service has considered 

the reduction of all threats to the subspecies, including the 

destruction, modification, or curtailment of its habitat or range; 

overutilization; disease or predation; inadequacy of existing 

regulatory mechanisms; and other factors. See the Summary of Factors 

Affecting the Species section below for additional information.

    Issue 3--Some commenters stated that there is a lack of a clear 

definition of habitat for WVNFS due to insufficient information on 

habitat needs. Factors comprising optimal habitat are complex and 

poorly understood.

    Response--The work of Menzel et al. (2004, pp. 355-368; 2006b, pp. 

1-10), Ford et al. (2004, pp. 430-438; 2007 in press, pp. 4-7), and 

Mitchell (2001, pp. 441-442) clearly define WVNFS habitat and its 


    Issue 4--Some commenters, including two peer reviewers, thought the 

Service had overemphasized spruce as a habitat component for WVNFS. 

These commenters note that the WVNFS inhabits deciduous forest at lower 

elevations without a spruce component, and therefore should not be 

considered an obligate to red spruce forest. These commenters state 

that additional hardwood forest needs to be protected. Some commenters 

also disputed that red spruce is preferred habitat of WVNFS, 

identifying biases in the work by Menzel. These commenters state that 

the Menzel habitat model is based on a small sample of nest boxes 

located in red spruce habitat, skewing this monitoring program toward a 

finding of red spruce as preferred squirrel habitat; however, actual 

squirrel capture data seem to refute the exclusive focus on red spruce 

(Menzel 2003, p. 93).

    Response--The Service never meant to imply that the squirrel is an 

obligate of the red spruce forest. However, the ecosystem in which 

WVNFS evolved consisted of a significant red spruce component, and it 

would be inappropriate to de-emphasize this important habitat feature. 

The WVNFS can be quite cosmopolitan, living within majority red spruce 

to nearly complete red spruce cover types, to majority hardwood to 

nearly complete hardwood cover types where the red spruce-fir component 

is minimal (Stihler et al. 1995, p. 18; Menzel 2003, p. 68; Menzel et 

al. 2006a, pp. 207-208; Ford et al. 2004, pp. 433-434; Reynolds et al. 

1999, pp. 347-348). However, the preponderance of the data suggest a 

strong link to red spruce; there is a higher probability of WVNFS 

presence in areas with the most red spruce (as a percentage of the 

cover type) (Menzel 2003, p. 68; Ford et al. 2004, pp. 433-434, 2007 in 

press, pp. 12, 15-16; Menzel et al. 2006a, pp. 207-208). It is well 

documented that the entire range of the WVNFS was a red spruce 

dominated forest until heavily logged during the late 1800s and early 

1900s (Mielke 1987, p. 219; Schuler et al. 2002, p. 89; Menzel et al. 

2006b, p. 1; Rentch et al. 2007, pp. 440-442). Home range sizes also 

are smaller in areas with more red spruce, suggesting that habitat 

quality is better in these areas because WVNFS do not have to travel as 

far to meet their ecological needs (Menzel 2003, pp. 77; Ford et al. 

2007, p. 6).

    Additionally, no data in the central Appalachians show that WVNFS 

are heavily dependent upon pure hardwoods. Even so, protection of 

northern hardwood forest of considerable size is not a concern in the 

central Appalachians, since, within the range of WVNFS above 3,200 ft 

in elevation, approximately 96 percent (627,237 ac) of the land is 

forested (USDA Forest Service 2007, unpubl. map). At a coarser scale, 

within the more than 2 million ac of northern hardwoods in the high 

Allegheny landscape of West Virginia, Forest Inventory Analysis shows 

an approximately 15 percent increase in northern hardwoods from 1989 

(2,061,000 ac, SE = 4,400 ac) to 2000 (2,393,600 ac, SE = 4,200 ac) 

(Griffith and Widmann 2003, pp. 30, 32).

    Finally, Menzel (2003, p. 93) does not support the commenters' 

claims about bias. Sample bias was recognized and dealt with 

appropriately. The Menzel et al. (2006b, pp. 1-10) study used a 

sufficiently large sample of nest box and trap sites that produced 

WVNFS previous to 1999 in a statistical analysis. These occupied sites 

were then compared to 700+ locations that failed to produce WVNFS in a 

logistic regression analysis. Despite the fact that nest box and trap 

locations were skewed towards forest stands containing red spruce, 

captures occurred more frequently (in a greater proportion than habitat 

availability would suggest) in red spruce than in pure hardwood stands.

    Issue 5--Some commenters, including two of the six peer reviewers, 

expressed concern about the threat of extensive logging on Federal, 

State, and private lands within the range of the WVNFS. Some commenters 

claim the MNF proposes to log up to 40 percent of the area comprising 

Management Prescription (MP) 4.1, which focuses on red spruce and red 

spruce-northern hardwood restoration.

    Response--A substantial amount of WVNFS habitat is protected and 

managed consistently with the habitat needs of the WVNFS. Approximately 

79 percent of WVNFS habitat (189,785 ac) is protected from the threat 

of exploitive logging for the foreseeable future (Service 2007a, pp. 5-

8). Privately owned lands potentially subject to continued timbering 

(50,997 ac or 21 percent of WVNFS habitat) occur primarily at the edge 

of the subspecies' range (Service 2007a, p. 8). These lands are not 

critical to the subspecies' conservation, given the large amount of 

WVNFS potential habitat protected and managed on public lands in the 

core of the subspecies' range. [For more details on the degree of land 

protection, see criterion  3 in Service (2007a)].

    The current MNF Forest Plan (USDA Forest Service 2006a, chapters II 

and III), protects WVNFS habitat primarily through land use 

designations, a predominantly passive management strategy, and binding 

standards that effectively remove the threat of habitat loss (via 

logging and other disturbances) on all WVNFS habitat on the forest 

(164,560 ac or 68 percent of the habitat rangewide). Standards TE 63-66 

(USDA Forest Service 2006a, p, II-26-27) adopt and implement the 

provisions of appendix A of the recovery plan for the WVNFS, which 

severely limit vegetation management in all WVNFS habitat, including 

breeding, feeding, resting, and dispersal corridors (Service 2001, 

appendix A). Only specific actions that have no adverse effect to WVNFS 

habitat, a discountable or very minor effect, or that demonstrate a 

beneficial effect (such as habitat restoration) are allowed in WVNFS 

habitat forest-wide. Based upon the Forest Service's long-term (50+ 

years) desired conditions for the ecosystem (USDA Forest Service 2006a, 

p. III-12), the Forest Service's intent shown in a Memorandum of 

Understanding signed by the MNF (Service et al. 2007, pp. 3

[[Page 50233]]

and 8), conversations with MNF staff, and the absence of any 

information to the contrary, we reasonably expect these standards to 

continue to apply regardless of the Act's listing status of the WVNFS. 

This management strategy is also likely to continue post delisting, as 

the WVNFS would be managed by the Forest Service as a ``sensitive 

species'' (USDA Forest Service 2006c, p. 18).

    The commenters' reference to potential logging of 40 percent of the 

area of Management Prescription 4.1 appears to stem from a 

misunderstanding of forest-wide standards TE63-66 and how they 

interplay with the other standards on specific prescription areas. 

Prescription area 4.1 encompasses 153,600 ac, of which 59 percent 

(roughly 91,332 ac) has been mapped as WVNFS habitat and is protected 

from commercial logging by standards TE63-66. The remaining 41 percent 

of the area (62,268 ac) has not been mapped as WVNFS habitat. Within 

this 62,268-ac area, approximately 27,300 ac (or 18 percent of the 

total acreage in prescription area 4.1) have been tentatively 

identified as suitable for timber production (USDA Forest Service 

2006b, p. 3-354). These 27,300 ac may be logged contingent on site-

specific project review and field checks to verify that these lands are 

not WVNFS habitat. Thus, at most, 18 percent of the land in MP 4.1 

could be logged over the life of the Forest Plan and all of this land 

would need to be demonstrated to not be suitable habitat for WVNFS, 

prior to logging.

    Logging of areas that are not WVNFS habitat will also need to 

comply with an array of other applicable standards in the management 

direction for prescription area 4.1 (USDA Forest Service 2006a, pp. 

III-14 to III-16), such as standards 4118 and 4119, which place limits 

on the amount and timing of disturbances within harvest units (USDA 

Forest Service 2006a, p. III-15). Standard 4118 states that no more 

than 40 percent of forested National Forest System lands within each 

4.1 prescription area unit shall be harvested over a 10-year period. 

Standard 4119 requires that unforeseen activities, such as timber 

salvage or pipeline installation, shall be counted toward the 40 

percent disturbance standard in 4118. Thus there are additional limits 

on timbering, even in areas that are not WVNFS habitat, that further 

reduce forest disturbances.

    Limited logging in WVNFS habitat for purposes of restoration is 

also allowed in prescription area 4.1, consistent with standards TE 63-

66, as long as it can be demonstrated to result in a minor/discountable 

adverse effect or a beneficial effect to WVNFS. The Forest Service has 

an objective to restore approximately 1,000 to 5,000 ac of habitat over 

the next 10 years (USDA Forest Service 2006a, p. III-14, objective 

4107). Standard 4118 also applies to these restoration activities. 

Hence it places limits on the frequency of disturbances within stands.

    The Service is confident that these restoration efforts would 

benefit WVNFS in several ways, by: (1) Increasing amounts of coarse 

woody debris necessary for many fungal species; (2) increasing the size 

and importance of red spruce (an important fungal substrate); (3) 

increasing habitat patch size and connectivity; (4) increasing snags 

available as day dens for WVNFS; and (5) decreasing hard-mast 

production, thereby lessening stand value to the southern flying 

squirrel competitor (Menzel et al. 2006a, p. 208).

    Issue 6--Some commenters expressed a view that all old growth 

forest across the range of WVNFS needs to be protected. These 

commenters cited Smith (2007a, pp. 864-865, 877) and Weigl (2007, p. 

899, 902) as evidence of concerns about ongoing harvest of old growth 

forest, its replacement with plantations or regenerating stands, and 

the increasing fragmentation of much of the remaining habitat.

    Response--There is little to no harvesting occurring in old growth 

forests on public or private lands within the range of the WVNFS. There 

is very little old-growth remaining from the exploitive logging period 

in the late 1800s/early 1900s. On the MNF, old growth currently 

comprises less than 1 percent of the entire forest (USDA Forest Service 

2006a, p. B-1). In addition, areas identified as old growth on the MNF 

are not suitable or allowed to be cut. The remaining known old-growth 

areas on the forest are protected by Botanical Area, National Natural 

Landmark, or Scenic Area designations, and are managed through specific 

Forest Plan direction and standards that prohibit timber removal and 

restrict other types of vegetation management in these areas (USDA 

Forest Service 2006a, p. B-4). Furthermore, ``[t]imber harvest goals 

and objectives are based on achieving desired conditions for vegetation 

and habitat, not on regional economics'' (USDA Forest Service 2006b, 

Final Environmental Impact Statement (FEIS), Appendix I, p. I-152), so 

there is little risk of the MNF having adverse impacts on the WVNFS. 

Concerns about a significant increase in forest fragmentation 

throughout much of the remaining WVNFS habitat are unsubstantiated. 

There are no existing or predicted activities that are anticipated to 

significantly adversely affect forests within WVNFS range on a 

landscape level.

    Issue 7--Some public commenters cited a newspaper article as 

specific evidence that the impact of second home development in West 

Virginia is a significant threat to WVNFS. They requested that the 

Service reanalyze these impacts.

    Response--The Service has reanalyzed these impacts and come to the 

same conclusion as in its earlier analysis, that second home 

development is not currently a significant threat. The greatest 

development pressures in West Virginia are occurring, and are projected 

to continue to occur, outside of the range of the WVNFS, in the far 

eastern panhandle, and in and around the cities of Morgantown and 

Charleston (Stein et al. 2005, Figure 2). Second home development 

currently is occurring at the edge of the range of the WVNFS (primarily 

at Canaan Valley and Snowshoe Mountain). By 2030, housing density 

increases are projected to occur on private forests across 0 to 5 

percent of the area corresponding to the core of the range of WVNFS 

(Stein et al. 2005, Figure 2). Such losses, if they occur, would be at 

the periphery of the range and minor in relation to the 242,000 ac of 

WVNFS habitat that exist within a larger landscape encompassing the 

range of WVNFS that is 96 percent forested (USDA Forest Service 2007, 

unpub. map).

    Issue 8--Some commenters thought that the impacts of roads had not 

been adequately considered. These commenters stated that roads create 

absolute barriers to flying squirrel movement. These commenters were 

concerned that construction of Appalachian Corridor H (a four lane 

divided highway running from Weston, WV, to the Virginia line), in 

particular, will open the region to further development and will 

isolate populations of WVNFS in Blackwater Canyon from populations and 

suitable habitat south of the highway. Commenters were concerned that 

populations of WVNFS in Blackwater Canyon north of the highway may not 

be able to survive on the remaining small island of habitat. They 

criticized the Service for not discussing these impacts in more detail 

in the proposed rule or 5-year review.

    Response--Construction of Corridor H through the extreme northern 

part of the WVNFS range is not expected to result in significant 

impacts to WVNFS or its habitat. As explained in the Land Use Planning 

section of the Factor A

[[Page 50234]]

analysis below, sufficient habitat will remain on both sides of the 

highway to support WVNFS (Service 2006b, pp. 4-5, 16-29; 2007c, pp. 3-

4, 14-26). Additionally, a cumulative effects assessment, conducted by 

the West Virginia Department of Transportation (2006, pp. 17-19) 

suggests there is an adequate amount of non-environmentally sensitive, 

low-elevation land, which is not WVNFS habitat, and is available to 

support all development reasonably expected to occur as a result of the 

highway construction.

    Issue 9--Some commenters were concerned that mining, drilling for 

gas, and construction of wind turbines in the habitat of WVNFS are 

increasing and therefore pose a threat to WVNFS.

    Response--There is no evidence that these activities have in the 

past, or will in the future, significantly threaten the WVNFS. This 

conclusion is based upon Service review of impacts to WVNFS from permit 

applications for coal mining, gas, and wind power projects.

    Surface mine projects in West Virginia average 302 ac in size, and 

underground mines average 34 ac of surface disturbance (Office of 

Surface Mining (OSM) 2005, p. 2). Most coal mining activity is 

concentrated in six counties (Boone, Kanawha, Mingo, Logan, Marshall, 

and Monongalia) outside the range of the WVNFS (OSM 2005, p. 2). Within 

the range of WVNFS, small portions of Greenbrier, Randolph, Tucker, and 

Grant Counties have coal seams (OSM 2005, cover map); however, these 

areas were mined in the past and are not currently active. Given the 

cost of reopening a mine, it is unlikely that there would be a 

resurgence of active mining in these areas, considering that these 

sites require expensive acid-mine waste remediation (Fala 2007). In the 

21 years since the WVNFS's listing, there have been only 2 or 3 

projects out of thousands reviewed each year where the Service 

identified potential adverse effects from coal mining to WVNFS habitat, 

and each of these projects was in marginal habitat on the edge of the 

subspecies' range. The Service has no information suggesting that coal 

mining activities will expand into WVNFS habitat. Given this lack of 

evidence of a threat and the above prior history and acreages involved, 

the potential for future impacts to WVNFS from this activity appears 

remote and insignificant.

    The Service has noticed a recent increase in gas drilling 

applications in West Virginia; however, the footprint of these projects 

typically is small, averaging approximately 1.5 ac per gas well. These 

projects also tend to use existing, short (<1 mile long) gravel access 

roads which do not pose a barrier to WVNFS dispersal. In the 21 years 

since the WVNFS's listing, few if any gas projects have resulted in 

adverse impacts to WVNFS habitat, and none of these projects have 

resulted in take of WVNFS. The Service expects these trends to continue 

after the WVNFS is delisted. The minor impacts of these projects do not 

pose a substantial threat to WVNFS.

    There currently is one operating wind power project in West 

Virginia, two under construction, and one approved which will not be 

constructed. There also is one project in Virginia in the permitting 

application phase. These projects have ranged in size from 24 to 372 ac 

of disturbance. Neither the presently operative project nor the two 

under construction have had impacts to WVNFS or its habitat. Although 

the Service has noticed an increase in prospecting for wind power 

projects in West Virginia, only a minority of these potential projects 

might adversely impact WVNFS or its habitat. Three of the 13 projects 

the Service has reviewed initially identified potential adverse impacts 

to WVNFS habitat (two projects in West Virginia and one project in 

Virginia). Two of these projects ultimately avoided WVNFS habitat 

because of the Act, and one of these projects was withdrawn due to 

difficulties seeking access from the Forest Service. Although 

prospecting is currently occurring, nearly half of all prospective wind 

energy applications filed for grid interconnection study within the 

mid-Atlantic region are withdrawn (Boone 2006, pp. 1-2).

    On national forest lands, project proponents currently must seek 

separate authorization for prospecting (surveys and setting up 

meteorological stations), as well as the construction and operation of 

wind towers. Even after the WVNFS is delisted, proposed wind farms in 

national forests within the range of WVNFS range would still need to be 

consistent with standards and guidelines in the forest plans. 

Therefore, we conclude that while prospecting in wind farms is 

increasing, only a minority may materialize, and fewer still might 

adversely affect the WVNFS. Based on these projections and the small 

acreage potentially involved, we conclude that wind power will not pose 

a significant threat to WVNFS or its habitat.

G. Forest Pest Concerns

    Issue 1--Some commenters were concerned about the effects of beech 

bark disease and the hemlock woolly adelgid on the habitat of the 

WVNFS. Two peer reviewers noted that while these forest pests may have 

local impacts to WVNFS, they are not significant at the landscape 

level. Two peer reviewers discussed forest pests as potential threats 

but did not comment on their significance to WVNFS.

    Response--Any impacts to WVNFS habitat from beech bark disease or 

hemlock woolly adelgid are considered minor in the context of the 

subspecies' range. A decline in American beech, as a result of beech 

bark disease, should provide additional snags and coarse woody debris 

for WVNFS. Additionally, a decline in beech nuts would also reduce the 

food supply of southern flying squirrels, a potential competitor of the 


    Eastern hemlock currently comprises 1 to 9 percent of forested land 

in counties within the range of WVNFS in West Virginia (Kish 2007, 

Figure 1). A predominantly eastern hemlock overstory is known to occur 

at 7 percent of WVNFS nest site locations (such as Blackwater Falls 

State Park), and its loss could affect the quality of riparian zone 

habitat useful for WVNFS dispersal between more isolated patches of red 

spruce-northern hardwood forest. Whether or not eastern hemlock is 

replaced by red spruce or northern hardwoods, thereby ameliorating 

losses, is unknown. However, research indicates that hardwood forests 

with little or no conifer component are not barriers to WVNFS movement 

(Menzel et al. 2006a, p. 207). Please refer to the 5-year review 

(Service 2006a, pp. 17-18) and Factor A of the Summary of Factors 

Affecting the Species below for further information on both beach bark 

disease and the hemlock woolly adelgid.

H. Acid Deposition Concerns

    Issue 1--Two commenters expressed concern about the effects of 

atmospheric acid deposition (also known as ``acid rain'') on WVNFS 

habitat, whereas one peer reviewer believed that such effects were 

largely speculative.

    Response--The Service agrees with the peer reviewer that such 

effects are largely speculative. Acid deposition is not a significant 

threat to the subspecies' habitat. See Factor E under the Summary of 

Factors Affecting the Species section below for further details.

I. Climate Change Concerns

    Issue 1--All peer reviewers agreed that the impacts of climate 

change on WVNFS are unclear. Whereas four peer reviewers concluded that 

measurable effects to WVNFS were not foreseeable, two concluded that 

the risk to WVNFS could not be discounted and requested

[[Page 50235]]

further analysis. Likewise, a coalition of commenters requested a more 

thorough analysis of the effects of global warming on WVNFS. They 

provided the Service a list of references to consider and submitted 

several unpublished maps of bioclimatic models for northern flying 

squirrels provided by Lawler (2007a, unpub. maps). This coalition of 

commenters believes that global warming is probably the greatest threat 

to WVNFS existence within the next 100 years and likely will result in 

extinction of the WVNFS.

    Response--The Service has reviewed all evidence on climate change 

provided by the peer reviewers and members of the public, including 

references cited by the commenters, as well as others. While the 

Service acknowledges the general scientific consensus that global scale 

increases in temperature have occurred and are expected to continue 

into the future, we disagree with the commenters' speculation that 

these changes will drive the WVNFS to extinction. Our ability to 

foresee 100 or more years into the future is limited by the current 

lack of reasonably accurate (Botkin et al. 2007, pp. 227-234; Meyers 

2008) climate change projection models localized for the range of the 

WVNFS, and simple stochastic events over such a long timeframe.

    Issue 2--Some commenters were concerned about the effect of climate 

change on interactions of WVNFS with the southern flying squirrel. They 

point to regional climate change studies projecting an increase in 

potential mast (nut producing) trees as evidence that the southern 

flying squirrel will outcompete WVNFS. In contrast, one peer reviewer 

noted that future climate conditions are unknown. He noted that hotter, 

drier summers but wetter, snowier winters might have little effect, or 

even a positive effect, on WVNFS if vegetation conditions remain 

unchanged, but wetter, snowier winters were less favorable for southern 

flying squirrels.

    Response--Bowman et al. (2005, pp. 1486, 1490) speculated that 

southern flying squirrels in Canada had expanded their northern 

geographic range in response to climate warming between 1994 and 2002, 

followed by a population crash in 2003 that resulted from an energetic 

bottleneck created by the combination of a cold winter that was 

preceded by a failed mast crop. They hypothesize that southern flying 

squirrels have the opportunity to expand their range northward during 

these warm periods, but acknowledge that there also is the possibility 

of large range contractions during cold spells (Bowman et al. 2005, p. 

1491). They conclude that continued range expansions of southern flying 

squirrels are likely under continued global warming, although they 

expect that these expansions will be limited by the distribution of 

mast trees (Bowman et al. 2005, p. 1492).

    It is important to realize that projections about potential 

northward advance of oak forests in response to climate change relate 

to the potential distribution of suitable habitat wherein oaks could 

grow, not the actual distribution of the tree species. It is 

speculation that tree species will continue to move north because there 

are no barriers or constraints to migration (Hansen et al. 2001, p. 


    Iverson et al. (2004a, p. 787-799; 2004b, pp. 209-219) investigated 

potential colonization of new suitable tree-species habitat under 

climate change for five eastern U.S species, including red oak. The 

results show the generally limited nature of likely migration over the 

first 100-year period following climatic change (Iverson et al. 2004b, 

p. 216). They estimate that the proportion of new habitat that might be 

colonized within a century is low (15 percent) for all five tree 

species, suggesting that there is a substantial lag between the 

potential movement of suitable habitat and the potential for tree 

species to migrate into the new habitat (Iverson et al. 2004a, p. 795). 

There is a relatively high probability of colonization within a zone of 

10-20 km (depending on habitat quality and species abundance) of the 

current boundary, but a small probability of colonization as the 

distance from the current boundary exceeds about 20 km (Iverson et al. 

2004b, p. 216).

    Looking at historical patterns, Schwartz et al. (2001, pp. 570, 

574) and Iverson et al. (1999, Figure 7 on p. 89) predicted that 

migration rates of 1 to 10 km/century might be the maximum future rates 

of tree colonization in fragmented habitats. Considering that the 

distribution of the WVNFS spans >170 km, it would take centuries for 

such potential shifts in oak species composition to materialize over a 

substantial portion of the range of WVNFS. Such slow colonization rates 

increase the likelihood that should red spruce decline significantly as 

a result of climate change, WVNFS would be able to survive in refugia 

of red spruce-northern hardwood habitats (as projected by Delcourt and 

Delcourt 1998, p. 927) and shift its range in response to similar slow, 

potential changes in southern flying squirrel distribution.

    Issue 3--Some commenters were concerned that the risk of wildfires 

would increase as a result of more frequent droughts, and thus would 

pose a threat to WVNFS.

    Response--Historically, natural fires in the Central Appalachians 

are believed to have been ``relatively unimportant in the past, and to 

remain unimportant today, because of the wet weather that usually 

accompanies lightning'' (Lafon et al. 2005, p. 129). Anthropogenic 

fires have played some role in the Central Appalachians for centuries 

as Native Americans used fire to drive game, improve wildlife habitat, 

maintain open meadows, and clear underbrush (Van Lear and Waldrop 1989, 

pp. 1-2; Delcourt and Delcourt 1997, p. 1013). European settlers also 

practiced widespread burning (Van Lear and Waldrop 1989, p. 3). As 

discussed by Weigl (2007, p. 898), wildfires ravaged the landscape 

during the period of industrial logging. Loggers set fires after 

clearcutting, and additional fires were ignited from sparks from the 

logging trains (Schuler et al. 2002, p. 89). The fires associated with 

the logging practices of the early 1900s are not expected to reoccur, 

because the clearcutting is no longer taking place. While other parts 

of the Central Appalachians are currently considered to be especially 

fire-prone, the Allegheny Plateau, which contains most of the WVNFS 

habitat, is considered as ``having limited fire activity'' (Lafon et 

al. 2005, p. 141). It is clear that fire has played some role in 

development of the current ecosystem for many centuries.

    Since climate appears to have a strong influence on fire regimes, 

potential climate changes will influence the number of fires, the area 

burned, and fire intensity (Lafon et al. 2005, p. 140). While there is 

the potential for occurrence of more frequent and intense fires during 

drought, there is also potential during wetter climatic periods for 

decreased fire activity. There are no scientific means, however, of 

accurately, or reasonably determining the net effect on WVNFS and its 

habitat of any potential change in the fire regime that may occur over 

the next century. While a long-term regime of intense, landscape level 

fires could significantly impact WVNFS habitat, those potential 

conditions are mere speculation given our present state of knowledge.

    Issue 4--Some commenters requested that the Service specifically 

review the potential contribution of global warming to the ``recent'' 

condition of red spruce, as described in several papers from the late 

1980s [McLaughlin et al. 1987; Johnson et al. 1988; and Hamburg and 

Cogbill 1988 (miscited as Cogbill 1988 by the commenters)]. They stated 

that the Service should fully examine all

[[Page 50236]]

studies of red spruce condition and factors contributing to that 


    Response--The Service has reviewed the three papers from the 1980s 

cited by the commenters, as well as other studies of red spruce 

condition. The three cited papers primarily focus on the northern and 

southern Appalachians, areas that are outside the range of the WVNFS. 

Although not directly applicable to WVNFS, papers covering areas 

outside the range of the WVNFS do provide a context for observed 

differences in regional trends of red spruce condition. The Service 

further examined potential impacts on the current and future condition 

of the red spruce-northern hardwood ecosystem in Factors A and E under 

the Summary of Factors Affecting the Species section of this final 

rule, as well as the responses to comments on these issues.

    Issue 5--Some commenters cited a paper by Delcourt and Delcourt 

(1998) as specific evidence that we can foresee: (1) The extirpation of 

red spruce-balsam fir and spruce-Fraser fir forests south of 44 degrees 

north latitude (the White Mountains, New Hampshire); and (2) the 

movement of the southern range of these forests to northern New England 

in the next 100 years.

    Response--We have reviewed the paper by Delcourt and Delcourt 

(1998) cited by the commenters. We believe the projections made by 

these authors are likely overestimates of risk. First, the authors did 

not model the full range of possible climate extremes and did not use a 

full array of different climate models. They modeled possible future 

shifts in the spruce-fir ecotone from two climate models, assuming 

projected summer warming of 3.0 degrees or 6.4 degrees Celsius 

(Delcourt and Delcourt 1998, p. 926). The Intergovernmental Panel on 

Climate Change (IPCC) (2007c, Table 3.1) currently recognizes a 2 to 4 

degree Celsius increase by 2099 as the best estimate of warming under 

six climate models (with a likely range of 1 to 6 degrees). Values 

substantially higher than 4 degrees cannot be excluded, but agreement 

of models with observations is not as good for those values (IPCC 

2007c, part 2.3). Thus the 3-degree warming scenario, identified by the 

Delcourts as their ``most conservative'' projection, falls within the 

middle range of the best estimate of temperature changes currently 

recognized by the IPCC. The Delcourts did not model the lower range (1-

2 degrees) of warming currently recognized by the IPCC.

    Second, the Delcourts provided little information about model 

assumptions and limitations, and did not attempt to validate their 

model, all of which greatly diminishes the usefulness of this paper. 

They did not quantify tree species extinction probabilities, or 

otherwise explain the basis for qualitative statements about their 

confidence in their predictions. Botkin et al. (2007, p. 231) notes 

that the type of niche-theory model used by the Delcourts is likely to 

overestimate the risk of tree species extinction. These types of models 

assume that observed distributions of trees are in equilibrium with 

their current environment, and that the tree species will become 

extinct outside of the regional values (Botkin et al. 2007, p. 231). 

However, local variation in climate due to topography or other factors 

could result in tree species being able to persist in suitable 

microhabitats even though the model projects no suitable habitat in 

these general regions (Hansen et al. 2001, p. 765). The Delcourts 

focused on elevation and summer temperature as the primary factors 

controlling where spruce-fir could grow, but other factors would likely 

add considerable uncertainty, such as: the seasonality of 

precipitation, duration of cloud cover in the growing season, winter 

temperatures and frost-free chronologies, and site-specific 

disturbances (White and Cogbill 1992, pp. 4-16).

    The Delcourts suggested possible northern and upslope migration of 

red spruce under both a 3- and 6-degree warming scenario, with greater 

impacts occurring under the warmer scenario. For the moderate 3-degree 

warming scenario, the authors also suggested the possibility of spruce 

survival in refugia (Delcourt and Delcourt 1998, p. 928, Figure 4), 

similar to what happened during warmer and drier extremes of the post-

glacial period 4000-5000 years before present (Delcourt and Delcourt 

1998, p. 927, Ware 1999, pp. 45-55) under similar temperature regimes.

    Although Delcourt and Delcourt (1989) modeled summer temperature 

changes through 2100, they provided no time frame for when vegetative 

responses would likely occur. They also did not provide any prediction 

of what the tree species composition would be in the forest that would 

succeed the spruce-fir forest in each of these scenarios. As discussed 

in climate change Response to Comments Issues 1-3, future vegetative 

changes in response to such temperature changes could possibly occur 

over several hundred years. However, their possible impacts on WVNFS 

distribution and persistence are not reasonably foreseeable given the 

long time frames and high degree of uncertainty. Therefore, we do not 

find that the projections of Delcourt and Delcourt (1989) present a 

climate change threat to the WVNFS' habitat that is likely to endanger 

the subspecies in the foreseeable future.

J. Spruce Restoration Concerns

    Issue 1--Whereas one peer reviewer commented that restoration 

techniques have the ability to hasten improved overstory conditions and 

compositions favorable to WVNFS, some members of the public were 

concerned that spruce restoration efforts are misdirected and would not 

be successful. These commenters state there is only one master's level 

study suggesting that such recovery may be feasible.

    Response--Forest management and silvicultural techniques, such as 

those being proposed, have long histories of implementation (Frank and 

Bjorkbom 1973, pp. 1-29; Frank and Blum 1978, pp. 1-15; Carey et al. 

1999, pp. 64-66). Several studies and modeling simulations indicate 

that restoration silviculture could be an effective tool for increasing 

the amount and quality of red spruce-northern hardwood forests in the 

central Appalachians (Rentch et al. 2007, pp. 440-452; Schuler et al. 

2002, pp. 88-98; Hornbeck and Kochenderfer 1998, pp. 197-202).

    Efforts to restore or enhance red spruce-northern hardwood forests 

should in many cases enhance WVNFS habitat in the short-term, as well 

as the long term. For example, noncommercial efforts that involve red 

spruce release by girdling or stem-injection of herbicide will create 

snags suitable for day dens. In addition, removal of hard mast species 

such as northern red oak or American beech will lessen habitat 

suitability for the southern flying squirrel and therefore minimize any 

potential competition for dens and food, as well as lessen 

interspecific contact to spread the Stronglyoides parasite. See Factor 

C under the Summary of Factors Affecting the Species section below for 

additional information.

    And lastly, red spruce-northern hardwood restoration on the MNF is 

targeted at maximizing patch size and habitat connectivity for WVNFS 

(USDA Forest Service 2006a, p. III-14). These efforts are proceeding 

cautiously in unoccupied habitat, with monitoring to gauge success. 

These efforts are not clear cuts, but rather are light thinnings of 

northern hardwoods that open the canopy to provide additional light for 

growth of spruce. Spruce is naturally adapted to regeneration in small 

openings such as these.

K. Overutilization Concerns

    Issue 1--One public commenter was concerned that once the WVNFS was 

delisted, its collection would no longer

[[Page 50237]]

be regulated and the subspecies would be threatened by overcollection. 

In contrast, two peer reviewers offered evidence that overutilization 

of WVNFS never has been a threat and would not become a threat should 

WVNFS be delisted.

    Response--Even for trained wildlife professionals, the WVNFS is an 

exceptionally difficult animal to catch. Thus the probability that a 

layman or commercial collector could capture or overcollect WVNFS is 

very remote given the subspecies' low detectability, nocturnal and 

secretive habits, and remote localities where it occurs. Once delisted, 

WVNFS collection by hunting or trapping will still be illegal under 

West Virginia and Virginia state laws (West Virginia Code 20-2-5(26); 

Code of Virginia 29.1-521.A.10, 29.1-566 and 29.1-530.A.), and its 

capture for scientific and educational purposes will still be regulated 

through collection permitting systems of the WVDNR (West Virginia Code 

20-2-50) and the Virginia Department of Game and Inland Fisheries (Code 

of Virginia 29.1-568). For more information, see Factor B in the 

Summary of Factors Affecting the Species below.

L. Adequacy of Regulatory Mechanisms

    Issue 1--Some commenters stated that much of the habitat believed 

to be important to the WVNFS is not fully protected in the long term.

    Response--There are no known rangewide threats to the subspecies' 

forested habitat, thus full protection of this habitat is not required 

to maintain the WVNFS's status as recovered. (See Factor A under the 

Summary of Factors Affecting the Species section for further details.) 

Seventy-nine percent of the modeled habitat of the WVNFS is being 

managed for the long term by provisions of forest plans, state 

management plans, wilderness and backcountry recreation designations, 

and conservation easements. For example, in the forest plan for the MNF 

(USDA Forest Service 2006a, p. III-9, D-1), Management Prescription 4.1 

focuses on protection, restoration and management of red spruce and red 

spruce-northern hardwood communities. This management prescription, as 

well as other management plans and agreements on state, Federal, and 

private lands, wilderness and backcountry recreation designations, and 

perpetual conservation easements will continue to apply following 

delisting of the WVNFS (Service 2007a, pp. 5-10). Collectively, all of 

these mechanisms provide reasonable certainty of protection and 

management of much of the habitat for WVNFS.

    Issue 2--Some commenters requested clarification on the status of 

forest plans for the Monongahela and the George Washington National 

Forests. These commenters were concerned that the Forest Service would 

not be able to implement these plans because of a lawsuit on the land 

management planning rule published in 2005.

    Response--In March 2007, a U.S. District court order enjoined the 

Forest Service from implementation and use of the land management 

planning rule published in 2005 until the Forest Service complied with 

the Court's order for two combined cases (Citizens for Better Forestry 

et al. v. USDA and Defenders of Wildlife v. Johanns, C.A. C05-1144 

(N.D. Cal.)). The Forest Service complied in 2008 by re-issuing its 

forest planning regulations. Forest plans currently in effect for the 

MNF and the George Washington National Forest (GWNF) were based on 

planning rules published prior to 2005; hence, their continued 

implementation and use in present form is not affected by the lawsuit 

or the new regulations. These existing plans provide guidance for 

management and monitoring of the WVNFS and its habitat, including 

prescriptions, goals, objectives, standards, and guidelines. Any 

subsequent revisions or amendments to these existing plans will require 

compliance with any planning regulations in effect at the time. Should 

the MNF choose to revise or amend their existing forest plan, we 

believe it is highly unlikely that the current WVNFS habitat would be 

affected (See the Factor A--Land Use Planning section under the Summary 

of Factors Affecting the Species below for further information).

    Issue 3--Some commenters noted the Service had entered into a 

Memorandum of Understanding (MOU) with the Forest Service, WVDNR, and 

others for continued management and protection of WVNFS. These 

commenters question whether the Forest Service would continue to 

protect a species without the force of law.

    Response--By signing the MOU, signatories demonstrate that they are 

committed to implementing the features within their discretion and 

authority (Service et al. 2007, pp. 1-8). The MOU affirms commitments 

made by the U.S. Forest Service MNF to implement standards and 

guidelines for the WVNFS and its habitat contained in the 2006 Land and 

Resource Management Plan. This plan would not be invalidated by 

delisting the WVNFS. Also see response to section F,. Ecosystem and 

Habitat Concerns--Issue 5 and section L,. Adequacy of Regulatory 

Mechanisms--Issue 2, above.

    Issue 4--Some commenters questioned the ability of the Forest 

Service, WVDNR, and others to fulfill their obligations in the MOU, 

given projected staff and budget cuts.

    Response--The Service is not relying upon the MOU as an enforceable 

regulatory mechanism under the Act. See Response to Issue 3 in this 

same subsection above.

    Issue 5--Some commenters were concerned that the MOU termination 

clause allows parties to opt out for any reason with 30 days' notice.

    Response--MOUs commonly have early termination clauses. While some 

changes to the composition of the signatory parties to the MOU may 

occur over time, we expect that other parties will sign on and the MOU 

will continue to be implemented for the long-term by those 

participating at the time. See Response to Issues 3 and 4 in this same 

subsection above.

M. Predator Concerns

    Issue 1--One commenter noted the Service had not discussed the 

impact on WVNFS of the reintroduction of the fisher, a potential 

predator on WVNFS.

    Response--Fishers (Martes pennanti) were reintroduced to West 

Virginia in the late 1960s or early 1970s, prior to the listing of 

WVNFS as endangered. Both animals have shown overlapping range 

expansions in the intervening decades, providing indirect evidence that 

fishers are not significant mortality agents for WVNFS. Most data from 

the eastern United States suggest that snowshoe hare, cottontails, 

voles, mice, and bird eggs comprise the majority of the fisher's diet 

(Powell et al. 2003, p. 643). Weigl (2007, p. 901) concluded that 

fishers probably can coexist with northern flying squirrels, with the 

exception of in small habitat islands, where there are fewer WVNFS and 

other prey is more limited.

N. Other Natural Factors

    Issue 1--One peer reviewer and one public commenter thought the 

Service needed to give more consideration to the impact of parasites on 

WVNFS spread by southern flying squirrels (Glaucomys volans), given 

projections about climate change, acid deposition, oak decline in 

northern hardwood communities, and expansion of other seed- and nut-

bearing hardwoods.

    Response--Recognizing that there are ``varying intensities'' of 

parasitic infection of northern flying squirrels (G. sabrinus) in the 

wild, Weigl (2007, p. 901) remains concerned about infection of G. 

sabrinus by the intestinal parasite

[[Page 50238]]

Stonglyoides robustus, based in part on his belief that there has never 

been stable sympatry of G. sabrinus and Stonglyoides robustus. While 

that may be true for the Carolina northern flying squirrel (G. s. 

coloratus) at the sites he studied in North Carolina and Tennessee, 

stable sympatric occurrences of WVNFS and the southern flying squirrel 

(G. volans) have been documented for decades at the Spruce Knob 

geographic recovery area in West Virginia (Wallace 2007, p. 2). The 

southern flying squirrel has been detected within all 7 of the 

generalized WVNFS core areas (or population centers), and at 20 percent 

of the 109 WVNFS capture sites. Despite the presence of this competing 

species, there is no evidence of illness or mortality of WVNFS, and no 

evidence of local extirpation of WVNFS from any of these sites during 

21 years of monitoring. Based on their documented co-occurrence in West 

Virginia and Virginia, and no documented lethal effects in the wild, we 

believe that speculation that impacts of climate change, acid 

deposition, or shifts in forest composition would decrease the fitness 

or survival of the WVNFS is unwarranted. The WVNFS has prevailed in 

repopulating its range in a habitat where the red spruce-northern 

hardwood compositions arguably favor the southern flying squirrel over 

the past 100 years. The Service does not believe that the WVNFS would 

have made this recovery if it suffered debilitating or lethal effects 

from sympatric relationships with parasite-bearing species (See Factor 

E--Competition with Southern Flying Squirrel under the Summary of 

Factors Affecting the Species section for further information).

O. Miscellaneous

    Issue 1--Some commenters were concerned that we have ignored the 

WVNFS recovery plan criteria in determining that the subspecies has 


    Response--As summarized above in the Recovery section of this final 

rule, our analysis shows that the intent of each criterion for 

downlisting and delisting has been satisfied and that most of the 

criteria have been achieved or substantially achieved. Although the 

recovery plan criteria are out-of-date, we conducted an analysis of how 

well these criteria have been met and summarized that analysis in the 

beginning of this final rule. New information has changed the extent to 

which these criteria need to be met for recognizing recovery of the 

subspecies. Species are listed or delisted under the Act based on 

whether they are threatened or endangered by one or more Factors (see 

Summary of Factors Affecting the Species section below). Up-to-date, 

threats-based recovery criteria can assist the Service in analyzing 

whether a species meets the definition of threatened or endangered. 

Recovery criteria are only one tool, however, the Service uses in 

making a classification determination.

    Issue 2--Some commenters expressed concern about not providing a 

post-delisting monitoring plan for public review, concurrently with the 

proposed rule.

    Response--The proposed and final delisting decisions are based 

firmly on an analysis of identified threats and changes in the 

subspecies' status. They are not legally contingent upon future 

approval or implementation of the post-delisting monitoring plan. The 

Act contains no explicit requirements for either notifications or 

public comment opportunities relative to planning or implementation of 

post-delisting monitoring plans. Nevertheless, the Service sought input 

into these processes, as indicated by our request for public comment on 

the draft post-delisting monitoring plan (72 FR 57346), published in 

the Federal Register on October 9, 2007, prior to publication of this 

final rule, and by our finalization of the plan concurrent with this 

final decision on the delisting proposal.

    Issue 3--Some commenters expressed mistrust about the motivations 

behind delisting and accused the Service of catering to developers, the 

timber industry, and other extractive resource users. Some commenters 

also expressed value-based reasons as to why they opposed delisting, 

such as spiritual importance, animal rights, and need for humans to 

behave as caretakers and stewards of the WVNFS, not as pillagers of its 

habitat. The majority of comments received were one of three various 

form letters stating that the proposed rule was premature and based on 

inadequate scientific information, but provided no substantive 

information to support these statements.

    Response--Our decision to delist WVNFS is based solely on the best 

scientific and commercial data available and our five-factor analysis. 

This analysis indicates that the subspecies is neither threatened nor 

endangered. While we appreciate the values expressed by these 

commenters, such comments are either not relevant to the decision, or 

are outside the scope and authority of the final rule.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 

424) set forth the procedures for listing species, reclassifying 

species, or removing species from listed status. ``Species'' is defined 

by the Act as including any species or subspecies of fish or wildlife 

or plants, and any distinct vertebrate population segment of fish or 

wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the 

``species'' is determined, we then evaluate whether that species may be 

endangered or threatened because of one or more of the five factors 

described in section 4(a)(1) of the Act. We must consider these same 

five factors in delisting a species. We may delist a species according 

to 50 CFR 424.11(d) if the best available scientific and commercial 

data indicate that the species is neither endangered nor threatened for 

the following reasons: (1) The species is extinct; (2) the species has 

recovered and is no longer endangered or threatened; and/or (3) the 

original scientific data used at the time the species was classified 

was in error.

    A recovered species is one that no longer meets the Act's 

definition of threatened or endangered. The analysis for a delisting 

due to recovery must be based on the five factors outlined in section 

4(a)(1) of the Act. This analysis must include an evaluation of threats 

that existed at the time of listing, those that currently exist, and 

those that could potentially affect the species once the protections of 

the Act are removed.

    The Act defines ``species'' to also include any subspecies or, for 

vertebrates, any distinct population segment. The Act defines 

``endangered species'' as any species which is in danger of extinction 

throughout all or a significant portion of its range, and ``threatened 

species'' as any species that is likely to become an endangered species 

within the foreseeable future throughout all or a significant portion 

of its range.

    For the purposes of this finding, the ``foreseeable future'' is the 

period of time over which events or effects reasonably can or should be 

anticipated, or trends reasonably extrapolated, such that reliable 

predictions can be made concerning the status of the species. As 

discussed in the Summary of Factors section, we determined that any 

future threat from development will be localized and minimal, based on 

trends over the past 10 years. In addition, the Service has no 

indications that management of the forest for timber will have more 

than a minor impact on the

[[Page 50239]]

WVNFS based on the discussion in Factor A. WVNFS habitat has been 

improving steadily for the past 50-80 years throughout its range and we 

expect this improvement to continue into the future.

    Climate change projection models are not reasonably accurate for 

the localized range of WVNFS, and therefore we cannot reliably predict 

that climate change will pose a threat in the future. All indications 

suggest that the squirrel is resilient enough to adapt to and survive 

gradual changes in the habitat, if there are any due to climate change. 

Therefore, we do not foresee any threats affecting the WVNFS into the 

future that would lead the species to become an endangered species.

    Section 4(a)(1) of the Act requires that we determine whether a 

species is endangered or threatened based on one or more of the five 

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; and (E) other natural or manmade 

factors affecting its continued existence. Our evaluation of these 

factors is presented below. Following this threats analysis, we 

evaluate whether the WVNFS is threatened or endangered within any 

significant portion of its range.

A. The Present or Threatened Destruction, Modification, or Curtailment 

of Its Habitat or Range

WVNFS Distribution

    At the time of listing (1985), 10 WVNFS individuals were known from 

Randolph and Pocahontas Counties, WV, and Highland County, VA (Service 

2006a, p. 8). It was thought that vast stretches of unsuitable habitat 

separated the four known population centers and that the WVNFS still 

existed but that it was very rare, and perhaps no longer present in 

much of its former range (50 FR 26999). The final listing rule 

qualitatively described historic habitat losses and suggested that ``in 

these last occupied zones, the squirrels [G. s. fuscus and G. s. 

coloratus] and their habitat may be coming under increasing pressure 

from human disturbances such as logging and development'' (50 FR 


    The current known range of WVNFS follows the spine of the high 

Allegheny Plateau in a northeast to southwest alignment. Helmick Run 

(Grant County, WV) marks the northeast periphery and Briery Knob 

(Greenbrier County, WV) the southwest periphery, covering seven 

counties in West Virginia and Highland County, Virginia (Service 2006a, 

p. 25). As of 2006, there is a total of 109 WVNFS capture sites, of 

which 107 are in West Virginia and 2 are in Highland County, Virginia 

(Service 2006a, pp. 8 and Figure 2; WVDNR 2006a, pp. 1-109). These 

capture sites are dispersed across seven general areas of habitat in 

the Allegheny Highlands region (Service 2006a, pp. 9 and Figure 3). 

Distributed throughout the 109 capture sites, there have been 1,198 

captures (including 85 recaptures) as of 2006 (WVDNR 2006a, pp. 1-109). 

Collectively, the proportion of sites demonstrating persistence across 

multiple generations (83 percent), distributed among habitat quality 

types and within geographic zones; the routine documentation of 

nestlings and juveniles (76 percent of sites); and balanced to slightly 

skewed sex ratios demonstrate a relatively high degree of population 

stability and constant habitat occupancy (Service 2007c, pp. 9-11). 

Locally reproducing populations are the most likely factors for 

continuing to find WVNFS in numerous locations within their historical 

range over the last couple of decades, given their low detectability, 

relatively short life span, and relatively low reproductive capacity, 

and a naturally patchy nature of suitable forest habitat distribution 

(Service 2007c, p. 11).

    We now know that the WVNFS continues to occupy the areas identified 

in the 1985 final listing rule (50 FR 26999) as well as numerous 

additional sites dispersed throughout its historical range, suggesting 

that its current range roughly approximates the extent of its 

historical range. Studies have confirmed the ability of the WVNFS to 

adjust its foraging and denning behavior (i.e., the ability to nest in 

a wide variety of trees) to persist in and around red spruce-northern 

hardwood forest patches (Menzel et al. 2004, pp. 360, 363-364; Menzel 

et al. 2006a, pp. 1-3, 6, 7; Menzel et al. 2006b, p. 208; Ford et al. 

2004, p. 430).

Habitat Quantity and Quality

    Prior to European settlement, there were in excess of 500,000 ac 

(some sources suggest 600,000+ ac) of old-growth red spruce-northern 

hardwood forests, the preferred habitat of the WVNFS, in the Allegheny 

Highlands. These forests (occupying ridges, slopes, and drainages) in 

West Virginia extended from the vicinity of Mount Storm (Grant County) 

in the north to Cold Knob (Greenbrier County) in the south, east to the 

Allegheny Front (Pendleton County), and west to Webster and Nicholas 

Counties. These red spruce-northern hardwood forests were more 

contiguous across the Allegheny Highlands than are the well-known 

``sky-islands'' of the Southern Appalachians, which support Carolina 

northern flying squirrels (G. s. coloratus) (Service 1990, pp. 16-17; 

USDA Forest Service-Northern Research Station 2006, unpublished data, 

pp. 2-3).

    Logging activity and associated widespread fires at the turn of the 

20th century decimated the red spruce-northern hardwood forests, 

resulting in younger forests with less red spruce and, in many areas, a 

mixed mesophytic (moderately moist environment), oak-dominated forest 

(Menzel et al. 2006b, p. 6; Rollins 2005, pp. 12-13; Schuler et al. 

2002, pp. 88-89). Loggers set fires after clearcutting, and additional 

fires were ignited from sparks from the logging trains (Schuler et al., 

2002, p. 89). The fires associated with the logging practices of the 

early 1900s are not expected to reoccur, because the clearcutting is no 

longer taking place. These fires did, however, consequently, result in 

less, and poorer quality, WVNFS habitat because younger forests with 

fewer red spruce provided reduced foraging and sheltering opportunities 

(Service 2006a, p. 6). Also, the presence of oak and its associated 

mast (i.e., acorns), provided a competitive advantage of food resources 

for the more aggressive southern flying squirrel. The WVNFS' rarity was 

understood to be a consequence of its specialized use of a 

precipitously declining habitat type (Service 2006a, p. 11).

    Currently, it is estimated that there are approximately 242,000 ac 

of WVNFS habitat (USDA Forest Service-Northern Research Station 2006, 

unpublished data, p. 4). This estimate is based in part on the results 

of several habitat models, and includes all ``optimal'' habitat as well 

as ``likely'' habitat located in close proximity to red spruce-northern 

hardwood forests. ``Likely'' and ``optimal'' are terms and definitions 

imparted by the Menzel model, with ``likely'' areas having a greater 

than 50 percent chance of being occupied by the WVNFS, and ``optimal'' 

areas having a greater than 75 percent probability of being occupied 

(Menzel 2003, pp. 84-85, 87-89; Menzel et al. 2006b, pp. 4-5). The 

models allow us to estimate the amount of potential and high-quality 

habitat in the Allegheny Highlands, prioritize areas for restoration 

and recovery (Menzel et al. 2006a, p. 7), assess anthropogenic 

(manmade) and geologic fragmentation of the red spruce forest, and 

analyze stewardship of the suitable habitat (Menzel et al. 2006b, p. 


[[Page 50240]]

    The forested areas used by the WVNFS across most of its range have 

continued to mature in the 20 years since listing. For example, about 

half of the rangewide areas modeled as optimal habitat are red spruce-

northern hardwood forest stands on the MNF that are over 75 years old 

(Menzel et al. 2006b, p. 4; Service 2006a, pp. 10-11; USDA Forest 

Service-Northern Research Station 2006, unpublished data, p. 2). Even 

though current habitat conditions are not as favorable for the WVNFS as 

historical conditions preceding the late 1800s/early 1900s, current 

conditions are much improved compared to those at the time of listing. 

With the exception of localized habitat impacts, forest succession has 

resulted in older forest stands with improved forest structure, 

reflecting a continuing positive rangewide trend (Service 2006a, pp. 

11-14, 19-20). With regard to forest composition, the amount and extent 

of red spruce in the Central Appalachians also appears to be gradually 

increasing (Adams et al. 1995, p. 101; Schuler et al. 2002, p. 92-93; 

Rollins 2005, pp. 39-51). Recent evidence also suggests improving 

trends in health and regeneration of red spruce-northern hardwood 

forests within the range of WVNFS (Adams et al. 1995, p. 101; Audley et 

al. 1999, pp. 179-199; Hornbeck and Kochenderfer 1998, pp. 198-200; 

Schuler et al. 2002, p. 92-94; Rollins 2005, pp. 74-78). The forested 

landscape within the range of WVNFS provides a high degree of 

functional connectivity, as evidenced by large patch sizes, numerous 

linkages, and persistence over multiple generations at monitoring sites 

across a range of forest conditions (Service 2007c, pp. 5-6, 9-11).

    We analyzed impacts that the balsam and hemlock woolly adelgids, 

insect parasites accidentally introduced from Europe (Service 1990, p. 

13), may be having on the WVNFS' habitat (Service 2006a, p. 17). The 

balsam woolly adelgid infects balsam fir (Abies balsamea) trees, 

causing damage or mortality to the host trees (Service 1990, p. 13). 

However, we believe the effect of the balsam woolly adelgid on WVNFS 

habitat is discountable because balsam fir is limited to a minor 

component of the WVNFS habitat (Peart et al. 1992, p. 149, 165). Red 

spruce occurs in or near stands of balsam fir, providing the WVNFS with 

alternative and higher value habitat where damage from the balsam 

woolly adelgid may have occurred. In addition, the impact of the balsam 

woolly adelgid on the small component of balsam fir within WVNFS 

habitat has already occurred (Service 2006a, p. 17).

    The hemlock woolly adeglid has been in the United States since 

1924. The insect damages eastern hemlock (Tsuga canadensis) trees by 

damaging new growth, which can cause defoliation and mortality (Service 

2006a, p. 17). Only 7 percent of the WVNFS capture sites are dominated 

by Eastern hemlock instead of red spruce (Service 2006a, p. 17). 

However, work conducted on the WVNFS indicates that hardwood forests 

with little or no conifer component are not barriers to movement 

(Menzel et al. 2006a, p. 207). While hemlock woolly adelgid may remove 

the montane conifer component at less than 10 percent of the known 

capture sites, most, if not all, of these areas are in close proximity 

to red spruce-northern hardwood forests, significantly reducing the 

occasions where loss of Eastern hemlock could be detrimental to the 

WVNFS (Service 2006a, p. 17). Additionally, the West Virginia 

Department of Agriculture has an active detection program for hemlock 

woolly adelgid and a treatment program that will remain in place 

regardless of the listing status of the WVNFS. Therefore, even though 

the hemlock woolly adelgid may impact a minor component of the 

squirrel's habitat, we consider it to pose a negligible degree of risk 

to the WVNFS, because of the limited role of hemlock in the subspecies' 

survival, and presence of red spruce in the majority of the areas 

(Service 2006a, p. 17).

    The potential impact of beech bark disease was also analyzed. Beech 

bark disease is caused by the beech scale insect (Cryptococcus 

fagisuga), followed by one of two fungi (Nectria coccinea var. faginata 

or N. galligena). The scale stresses and weakens the American beech 

tree (Fagus grandifolia) and the fungi then cause either localized 

lesions or decay and death of the entire tree (Service 2006a, pp. 17-

18). Although American beech trees are common to the red spruce-

northern hardwood forests of the Allegheny Highlands, in WVNFS habitat 

they usually occur in combination with red spruce and other hardwoods, 

particularly birch and maple. Therefore, despite having a devastating 

impact on the American beech component of the red spruce-northern 

hardwood forest, beech bark disease is not thought to render WVNFS 

habitat unsuitable (Service 2006a, p. 18). There is actually a 

potential short-term benefit to the WVNFS due to the creation of new 

nest cavities in the holes of dead and decaying beeches. Foraging 

habitat for the WVNFS may also improve with increases in large woody 

debris on the forest floor from the dead beech trees, which could 

promote the growth of underground fungi, one of the WVNFS' primary food 

sources (Carey et al. 1999, p. 54; Pyare and Longland 2001, p. 1008; 

Rosenberg and Anthony 1992, p.161; Waters et al. 2000, p. 85). 

Additionally, the removal of beech nuts is thought to be more 

detrimental to the southern flying squirrel because it is a high-energy 

food source for that species, and, therefore, would counter any small 

amount of direct competition between the WVNFS and the southern flying 

squirrel. Therefore, while beech bark disease affects a minor component 

of WVNFS habitat rangewide, we consider it to pose an overall low-to-

moderate degree of risk for WVNFS, and this risk may be offset by the 

potential benefits of creation of new nest cavities, increase in a 

primary food source, and potential harm to the food supply of the 

southern flying squirrel (Service 2006a, p. 18).

    We also analyzed the potential future impacts of climate change on 

the WVNFS's habitat. While there is much speculation on potential 

future impacts of climate change on the WVNFS, it is important to 

recognize that there is no evidence that climate changes observed to 

date have had any adverse impact on WVNFS or its habitat. For example, 

within the range of the WVNFS, inexplicable crown dieback (Mielke 1987, 

pp. 221-222) and declines in red spruce radial growth were reported in 

the 1980s (Adams et al. 1985, p. 315). Since the 1980s, there has been 

no evidence of widespread crown decline of red spruce throughout the 

range of WVNFS. By the late 1990s, Audley et al. (1998, pp. 177, 180, 

190) noted that while a small percentage of individual trees sampled 

exhibited symptoms of reduced health and vigor, the majority of red 

spruce sampled in West Virginia appeared healthy. More recent 

dendrochronological surveys of red spruce stands in West Virginia 

detected this growth decline phenomenon occurring from about 1930 to 

1990 (Schuler et al. 2002, p. 93; Hornbeck and Kochenderfer 1998, pp. 

199-200). Since this time period, the decline appears to have ended in 

the central Appalachians--growth rates have leveled or shown slight 

increases (Schuler et al. 2002, p. 93, figure 3; Hornbeck and 

Kochenderfer 1998, p. 199-200) and regeneration remains unaffected 

(Schuler et al. 2002, pp. 92-93).

    Red spruce is now recolonizing areas of hardwood forest near 

existing red spruce stands, areas that historically were red spruce 

until the logging and fires at the turn of the 20th century (Schuler et 

al. p. 2002, p. 89). There is

[[Page 50241]]

evidence that the red spruce-northern hardwood ecotone is either 

stabilizing or decreasing in elevation (expanding) to approximate its 

former extent (Adams et al. 1999, p. 235, Rollins 2005, p. 76). Rollins 

(2005, p. ii, 74-75) found that the amount and quality of red spruce at 

three study sites in the central Appalachians appeared to be gradually 

improving through natural regeneration.

    Since then, Rollins has studied 9 additional sites, for a total of 

12 representative sites distributed in the northern, central, and 

southern portions of the range of WVNFS. Stand data on trees, saplings 

and seedlings, soil chemistry, red spruce foliar chemistry, and the 

percent of red spruce roots covered by symbiotic fungal mycorrhizae are 

currently being analyzed between two sampling periods (1985 vs. 2005). 

Although a final report is not yet available, preliminary results 

indicate a reversal of the crown dieback conditions observed in 1985 

(Connolly 2007).

    This pattern is contrary to general projections that climate 

changes in the next 100 years may shift the geographic ranges of flora 

and fauna upwards in elevation and northward (IPCC 2002, p. 1). 

Considering the ecotone range expansion trends documented by Rollins 

(2005) and Adams et al. (1999), we expect that the extent and quality 

of the habitat for WVNFS is likely to continue to increase.

    We looked at the possible range of effects of climate change on the 

WVNFS. Under warmer scenarios, several regional models project that 

mixed (hardwood and conifer) forests in the northeastern United States 

(including West Virginia and Virginia) may decrease in potential area, 

as they gradually shift into Canada over the next 100 years or more. By 

some projections, this possible decrease in potential habitat could be 

as small as -11 percent to -22 percent (Iverson et al. 2005, p. 34) or 

as large as -97 percent over 100 years (Hansen et al. 2001, p. 769). 

These models also project that northeast mixed hardwood and conifer 

forests may gradually be squeezed from the south by the advance of 

southeastern mixed forests to varying degrees (Inkley et al. 2004, p. 

6). However, some models project that the biome remains intact under 

cooler scenarios (Hansen et al. 2001, p. 769; Inkley et al. 2004, p. 6, 

figure 3). As explained by Botkin et al. (2007, p. 230), ``the larger 

the scale of the primary units of the model, the simpler it is to 

estimate effects over large areas and times, but also the cruder the 

approximation is and the more likely that undesirable assumptions will 

prevail.'' Given this caveat, as well as the huge variation in possible 

views of the future noted above, all with unknown likelihoods of 

occurrence, we conclude that it is not possible to translate these 

potential scenarios into potential effects on WVNFS or its habitat over 

any meaningful timeframe.

    We considered the map products provided by some of the public 

commenters (Lawler 2007a, unpub. maps). We spoke to Dr. Joshua Lawler 

(2007b), University of Washington, to gain a better understanding of 

the continentwide bioclimatic models he ran for all subspecies of 

northern flying squirrels. These models do not map vegetation directly, 

but attempt to do so indirectly by correlating the distribution of the 

various subspecies of northern flying squirrels to alternative 

scenarios of climate change. For the WVNFS, the models project that the 

future climate (2071-2100) within the range of the subspecies will be 

different from the baseline climate conditions of 1961-1990. Contrary 

to the commenters' speculation that these products project the 

extinction of WVNFS, the unpublished map products (Lawler 2007a, unpub. 

maps) provided by the commenters indicate only an unquantified 

potential range contraction of WVNFS. Botkin et al. (2007, p. 231) 

notes that bioclimatic models vary greatly in their projections of 

extinction, and that Lawler et al. (2006) have not attempted to 

validate any of the models they are using. Lawler et al. (2006, p. 

1579) recognized that it would be difficult to translate these types of 

predictions into threats of extinction because actual range shifts 

would depend on dispersal, evolutionary flexibility, and species 

interactions. Dr. Lawler (2007b) stated that the model had a good 

degree of fit at the continentwide level, but the fit would be reduced, 

and the degree of uncertainty would be expected to be higher, at the 

State level. He indicated it is not possible to determine model error 

for the relatively small scale of the WVNFS' range in West Virginia and 


    The WVNFS and other subspecies of G. sabrinus have demonstrated 

significant adaptability, resilience, mobility, and plasticity in 

habitat use by surviving landscape-level habitat changes during times 

of glacial retreat and advance during the Pleistocene, and by surviving 

intense landscape-level loss of forest during the late 1800s and early 

1900s (Weigl 2007, p. 898). Over the past 100+ years, the WVNFS 

survived a change from a red spruce-dominated forest to a loss of much 

of the forest habitat, to a transitional regeneration of a hardwood-

dominated forest, and a more recent increase in the red spruce 

component. As several commenters point out, hardwood trees have always 

been an important component of WVNFS habitat and there is no evidence 

that a gradual increase in hardwoods would cause dramatic population 

declines for the WVNFS. In fact, Weigl (2007, p. 899), citing two other 

studies in the northeast, noted that ``the species is known to occupy 

hardwood habitat without spruce or fir.'' The Service concludes that 

the WVNFS is expected to survive slow, gradual changes from long-term 

climate change.

    Based upon a review of the current scientific studies, peer-review 

comments, the unpublished maps provided by the commenters, and 

discussions with modelers, the Service concludes that there is no 

evidence that current changes in climate have had an adverse impact on 

WVNFS. Long-term projections about climate change and its possible 

effects on WVNFS are complex and best viewed as possible alternative 

views of the future that have unknown likelihoods of occurrence. 

Therefore, based on the above information, we have determined that we 

are unable to establish climate change as a threat to the WVNFS within 

the foreseeable future.

Land Use Planning

    Available information indicates that the threat posed by past 

habitat loss has been largely abated across most of the WVNFS' range. 

Implementation of the 2001 recovery plan amendment (Service 2001, p. 4) 

and the 2004 amendment to the MNF Land and Resource Management Plan 

(USDA Forest Service 2004, pp. 84a-84c, 87, 234-234b) significantly 

removed the threat of habitat loss (via logging) across much of the 

WVNFS' range. The recovery plan amendment recommended that suitable 

WVNFS habitat be considered during consultation with Federal agencies. 

The Forest Service reinforced this recommendation through an amendment 

to the MNF Land and Resource Management Plan, which limited vegetation 

management in all ``suitable habitat'' (as determined collaboratively 

by the Forest Service, Service, and WVDNR) to: (1) Research activities 

covered under an Act section 10 permit; (2) actions to improve or 

maintain WVNFS populations after research has demonstrated the 

beneficial effects of the proposed management; or (3) when project-

level assessment results in no adverse effects. This conservation 

strategy has been carried forward into the MNF's recent

[[Page 50242]]

Forest Plan Revision (USDA Forest Service 2006a, Management 

Prescriptions 4.1 and parts of 5.0, 5.1, 6.2, and 8.0; USDA Forest 

Service 2006c, pp. 12, 19-20, 27).

    It is important to note that section 7 of the Act provides 

regulatory flexibility to Federal agencies to complete their missions. 

This process allows Federal agencies to incidentally ``take'' 

individuals of a listed species as long as they insure their actions 

are not likely to jeopardize the entire species or adversely modify 

critical habitat. This regulatory option provided the MNF the ability 

to harvest and manage timber even in occupied WVNFS habitat. However, 

the MNF has avoided impacts to the WVNFS altogether while still 

maintaining a viable timber harvest program, which continues under the 

revised plan (USDA Forest Service 2006a).

    After the WVNFS is delisted, the MNF is likely to amend the Forest 

Plan to incorporate its latest forest planning regulations, and to 

formally recognize that the WVNFS is no longer an endangered or 

threatened species. But given the MNF's desired future condition for 

Management Prescription 4.1 (summarized below), and history of 

proactive recovery efforts directed toward WVNFS conservation, the 

Service believes that the MNF will continue management and monitoring 

the red spruce-northern hardwood ecosystem that supports the WVNFS. 

Furthermore, the MNF's current timber management and harvest goals are 

based on achieving desired forest and habitat conditions and not on a 

regional economic or a supply/demand basis (USDA Forest Service 2006b, 

FEIS, Appendix I). The desired future condition for Management 

Prescription 4.1 focuses on developing a late successional stage (>120 

years) forest over time (50+ years) with the multi-age stand structure 

that likely existed prior to exploitive logging (USDA 2006a, pp. III-

12). At the stand level, desired vegetation conditions include a mix of 

trees of different ages, complex vertical habitat structure, scattered 

small openings (<2 ac) dominated by shrubs and saplings, scattered 

over-mature trees, and an abundance of snags, den trees, and downed 

woody debris.

    Even if the MNF revises the current or subsequent Forest Plans to 

increase timber harvest, it is highly unlikely that the current WVNFS 

habitat would be impacted. About two-thirds of the MNF is fully stocked 

or overstocked timber. The MNF is growing nearly four times as much 

timber as is being harvested or dying from natural causes (USDA Forest 

Service 2006b, FEIS, Appendix I, p. I-155). Therefore, with the current 

surplus of available timber and the relatively small portion of the 

available timber currently being harvested, the MNF could substantially 

increase its annual harvest rate within the 330,000 available ac and 

still have no need to harvest in WVNFS habitat. The MNF's FEIS for the 

Forest Plan Revision describes three forest management alternatives 

that would result in a greater acreage available for timber harvest 

than the selected alternative (from 900 to 17,300 ac more) (USDA Forest 

Service 2006b, FEIS, Summary). The alternative with the greatest 

acreage available for timber harvest also includes a greater total 

acreage withheld from timber harvest to protect WVNFS habitat, Indiana 

bat (federally listed as endangered) habitat, river corridors, scenic 

areas, and streams buffers (367,396 ac or 68,703 ac more) than the 

selected alternative (298,693 ac), providing supporting evidence that 

the MNF has sufficient timber reserves if it wanted to increase timber 

harvest and still can protect WVNFS habitat.

    The MNF is harvesting its timber outside of WVNFS habitat, at a 

sustainable rate. Alternatives have been identified that would provide 

additional acreage for timber harvesting without compromising WVNFS 

habitat. Therefore, the Service believes it is reasonable to expect the 

MNF will continue not to harvest timber in WVNFS habitat; a choice that 

would continue the agency's previous contributions to improve the 

WVNFS's status. We also believe that the MNF has the current and future 

capability to manage timber harvest in a way that does not harm the 

WVNFS after delisting and will do so.

    Looking beyond the MNF, there is no evidence of any new sources of 

habitat loss throughout the current range of the WVNFS. According to 

analyses using the Menzel model, approximately 68 percent of areas 

modeled as habitat are now considered secured by public ownership and/

or managed for the protection of the WVNFS (Menzel et al. 2006b, p.4). 

These areas include Canaan Valley National Wildlife Refuge (NWR) 

(created in 1994), Blackwater Falls and Canaan Valley State parks, 

Handley Wildlife Management Area, Kumbrabow State Forest, and the MNF 

(Service 2006a, pp. 12-14). An additional 5 percent of habitat is 

considered secure in Virginia on the GWNF.

    Activities that have contributed to habitat loss and degradation 

since the time of listing occur only locally or occur on the periphery 

of the WVNFS's range (Service 2006a, pp. 11, 14, 20). These activities 

include limited highway development, recreational development, mining 

and gas exploration, timber management, and wind farm development (see 

``Summary of Public Comments'', part F, issue 9). With regard to 

activities that are reasonably foreseeable to occur, some low level of 

local impacts are likely to continue into the future; however, there is 

no indication that the activities would ever be likely to occur over a 

landscape level, or at such a magnitude as to pose a threat to the 

continued existence of WVNFS throughout its range or in any significant 

portion of its range (Service 2006a, pp. 11, 14, 19-20).

    For example, construction of Corridor H through the extreme 

northern part of the range of WVNFS is not expected to result in 

significant impacts to WVNFS or its habitat. Roads can adversely affect 

WVNFS movement by fragmenting habitat, although not all roads create 

absolute barriers. WVNFS are capable of gliding up to 200 ft, with the 

majority of the glides ranging from 16 to 82 ft (Scheibe et al. 2007, 

p. 857; Vernes 2001, pp. 1028-1029). WVNFS are known to have crossed 

logging roads, gravel roads, and ski slopes (Ford et al. 2007, p. 8; 

Menzel et al. 2006a, p. 207; Terry 2004, pp. 18-19). Menzel et al. 

(2004, p. 358) noted that many WVNFS day dens were located along or 

near abandoned skidder trails. Weigl et al. (1999, p. 61) found that G. 

s. coloratus frequently crossed patches of non-forested habitat, and 

one crossed a paved road several times. However, telemetry studies 

conducted on G. s. coloratus near the 2-lane paved Cherohala Skyway in 

North Carolina failed to document any evidence of squirrels attempting 

to cross this highway, even though in many cases the home ranges of the 

tracked squirrels were located in close proximity to the highway right-

of-way (Weigl et al. 1999, pp. 69-73). Mean distances between forest 

edges across both sides of the right-of-way for that study ranged from 

125 to 175 ft, and hence may have exceeded the normal gliding 

capability of a majority of G. s coloratus.

    Range-wide habitat modeling has estimated that more than 235,000 ac 

of suitable WVNFS habitat exists south of the proposed Corridor H 

alignment and an additional 4,400 ac of suitable WVNFS habitat exists 

in the Blackwater Canyon area to the north of the alignment (Service 

2006b, p. 19). Construction of the proposed project could decrease 

habitat connectivity within the northern habitats, or even create a 

permanent barrier to dispersal of the WVNFS between northern and 

southern areas. However, the amount of suitable habitat north and 

northeast of

[[Page 50243]]

the Blackwater canyon (approximately 4,400 ac) is considerable and we 

conclude that it is large enough that the current WVNFS population is 

likely to persist (Service 2006b, p. 23; Smith and Person 2007, p. 

631). About 24,000 acres of suitable habitat exists in the Blackwater 

Canyon area south of the highway and this will remain connected by 

dispersal corridors to the remaining 211,000 acres of suitable habitat. 

Although the 235,000 acres (this figure is comprised of 211,000 acres 

plus the 24,000 acres in Blackwater Canyon) south of the proposed 

Corridor H alignment is not contiguous habitat, there are no sizeable 

gaps preventing squirrel dispersal, so we conclude that no portion of 

the population south of the alignment will be meaningfully affected by 

the road. This leaves only the question of the impact of the road 

footprint itself. A total of 745 ac of habitat for the WVNFS will be 

lost during construction of the proposed project (Service 2006b, p. 23; 

Service 2008, p. 20). This equates to a total loss of only 0.1 percent 

of the available highly suitable and suitable habitat for the 

subspecies, and therefore does not represent a significant threat.

    The Service analyzed possible secondary impacts to WVNFS from the 

proposed Corridor H project from Parsons, WV to Davis, WV (Service 

2006b, pp. 1-39) and Davis, WV to Bismarck, WV (Service 2008, pp. 1-

32). Construction of this four-lane divided highway is expected to 

increase human accessibility to surrounding lands and could spur 

increased development in the lands adjacent to the project. However, a 

cumulative effects assessment, conducted by the West Virginia 

Department of Transportation (WVDOT) (2006, pp. 17-19) suggests there 

is an adequate amount of non-environmentally sensitive, low-elevation 

land that is not WVNFS habitat and that is available to support all 

development reasonably expected to occur as a result of the highway 

construction. WVDOT (2006, p. 20) modeled the worst-case scenario for 

development that was reasonably certain to occur after the highway was 

built, taking into consideration development and traffic patterns, and 

trends in employment and population growth. They mapped the raw private 

land (currently undeveloped) that was available to accommodate 

projected development. This was defined as land that was located 

outside of the 100-year floodplain that did not have slopes greater 

than 25 percent, that did not have wetlands, and that did not have 

existing development or was not currently under public ownership. Thus 

is appears that the land identified as being available to accommodate 

development corresponds to those lands that have the greatest 

likelihood of being developed due to lack of constraints.

    As a general matter, because the majority of WVNFS habitat is 

publicly owned and managed, future development throughout the range of 

the WVNFS is expected to be minimal. The entire range of the WVNFS is 

within the Allegheny Mountains Valley Physiographic Region, an area of 

steep terrain and low human population density and growth. In 2005, the 

proportion of land use classified as low density and high density 

development within this physiographic region in West Virginia was 0.4 

percent and 0.1 percent, respectively (WVDNR 2006b, p. 10). During 

2000, population densities in the counties in West Virginia in which 

the WVNFS occurs were among the lowest in the State, ranging from 9.7 

to 40.4 persons per square mile (WVDNR 2006b, p. 17); and with the 

exception of Randolph County (0.3 percent increase), the 10-year 

population trend (1990-2000) in all of these counties decreased (WVDNR 

2006b, p. 18).

    Summary of Factor A: Although the quantity and quality of WVNFS 

habitat is reduced from historical levels (preceding the logging and 

burning era of the late 1800s and early 1900s), we now know that the 

WVNFS is more resilient in its habitat use than formerly thought, 

probably because of its mobility and plasticity in nest tree selection. 

Additionally, the habitat is more connected than previously thought, 

and habitat trends are moving in a positive direction in terms of 

forest regeneration and conservation. Also, the subspecies continues to 

persist for multiple generations at many locations across its 

historical range. Impacts from proposed transportation projects and 

potential future housing development are localized and minimal. For the 

foreseeable future, any localized loss of habitat due to timber harvest 

or development on private lands will not reduce the overall quality of 

habitat for the WVNFS, rather it will just slightly reduce the amount 

of improvement in habitat conditions. For these reasons, and the lack 

of any rangewide threats to WVNFS habitat, the present or threatened 

destruction, modification, or curtailment of its habitat or range is no 

longer currently a threat to the WVNFS or likely to become so in the 

foreseeable future.

B. Overutilization for Commercial, Recreational, Scientific, or 

Educational Purposes

    The final listing rule concluded that the WVNFS was not known to be 

threatened by human utilization but noted that flying squirrels are 

highly desirable as pets to some persons, and collecting for such 

purposes is at least a potential threat to the already rare WVNFS (50 

FR 26999). The WVNFS has been captured only for scientific or 

educational purposes through nest box and live trap methods, and not 

for market collecting or commercial use. Capture for scientific or 

educational purposes has been very limited, is regulated by state 

permitting systems, and has not proven to be detrimental to the 

continued existence of the WVNFS.

    In the 21 years since listing, the Service has not received any 

evidence that commercial use in the pet trade or recreational use of 

the WVNFS is a threat. There are no law enforcement records of illegal 

harvesting or commercialization of the subspecies. Several factors 

indicate that delisting will not significantly change that. The WVNFS 

is a thinly dispersed, nocturnal mammal that is very difficult to 

catch. For example, Menzel captured the WVNFS at a rate of 0.227 

captures per 100 trap nights (Menzel 2003, p. 65), and the WVDNR's nest 

box monitoring program has had only a 2 percent average success rate of 

squirrel occupancy per box checked (Service 2006a, p. 7). Additionally, 

once the WVNFS is delisted, its collection by hunting or trapping will 

still be illegal under West Virginia and Virginia state laws (West 

Virginia Code 20-2-5(26); Code of Virginia 29.1-521.A.10; 29.1-566 and 

29.1-530A.). See further discussion in Factor D under the Summary of 

Factors Affecting the Species below. WVNFS is not currently defined as 

a game or furbearing animal that can be legally hunted or trapped in 

either state, and as such, there currently are no bag limits allowed 

for WVNFS (West Virginia Code 20-1-2; Code of Virginia 29.1-100, 29.1-

530.A). Moreover, once the WVNFS is delisted, its capture for 

scientific and educational purposes will still be regulated through 

collection permitting systems of the WVDNR (West Virginia Code 20-2-50) 

and the Virginia Department of Game and Inland Fisheries (VDGIF) (Code 

of Virginia 29.1-568).

    Summary of Factor B: Overutilization for any purpose is not 

currently considered a threat and is not anticipated to emerge as a 

threat in the foreseeable future.

[[Page 50244]]

C. Disease or Predation

    The final listing rule (50 FR 26999) made no mention of disease as 

a threat to the WVNFS, and we are not aware of any evidence since the 

time of listing that suggests the health of WVNFS individuals is 

threatened by disease. Of the more than 1,000 squirrel captures since 

1985, none have shown signs of disease (Service 2006a, p.15).

    The final listing rule predicted that increasing human recreational 

use of northern flying squirrel habitat might result in predation on 

the WVNFS by pets, especially cats (50 FR 26999). While natural 

predators of the WVNFS may include weasel, fox, mink, owls, hawks, 

bobcat, skunk, raccoon, snakes, and fisher, we are not aware of any 

scientific or commercial evidence since the time of listing to support 

pets preying upon WVNFS (Service 2006c, p. 15), or to suggest that 

natural predation limits populations of WVNFS. As analyzed in our 

biological opinion for the Camp Wilderness Habitat Conservation Plan 

(HCP) (Service 2003, pp.12, 23), there are no documented deaths of 

northern flying squirrels, particularly the WVNFS, as a result of 

impacts of human recreational use or occupancy in, or near, its 

habitat, and pets are not predicted to be a substantial threat in the 

future (Service 2003, pp. 12, 23-25). Since the majority of WVNFS 

habitat is found on the MNF, human encroachment into WVNFS habitat is 

uncommon and localized (e.g., Canaan Valley and Snowshoe Mountain) 

(Service 2003, pp. 12, 23-25; Service 2006c, p. 15; Service 2006a, pp. 

15, 20), and is therefore unlikely to become a threat to the WVNFS in 

the foreseeable future.

    Summary of Factor C: Disease and predation are not currently 

threats to the WVNFS and are not likely to become threats in the 

foreseeable future.

D. Inadequacy of Existing Regulatory Mechanisms

    The final listing rule stated that this factor was not known to be 

applicable (50 FR 26999). Currently, all threats under Factors A-C, and 

E have been eliminated or abated, and no regulatory mechanisms are 

needed to delist the WVNFS. Therefore, the inadequacy of regulatory 

mechanisms is not considered a threat to the subspecies. Nevertheless, 

even though not considered necessary for delisting, the laws discussed 

below will continue to provide some level of benefits to the WVNFS.

State Laws

    The State of West Virginia does not currently have any State laws 

protecting endangered species. However, for the reasons stated in the 

discussions of Factors A, B, C and E, there are no current threats to 

the subspecies as a whole that require additional regulation. 

Therefore, the lack of an endangered species State law in West Virginia 

is not expected to negatively impact the WVNFS. See Factor B above for 

additional information.

    In the Commonwealth of Virginia, the WVNFS has been listed as 

endangered under the Commonwealth's endangered species act since its 

Federal listing in 1985. This Commonwealth law, which is administered 

by the VDGIF, prohibits take of Commonwealth-listed species and is 

currently applicable to the WVNFS. The State has the authority to 

continue protection of the WVNFS under the State law once it is removed 

from the Federal List of Threatened and Endangered Wildlife (Virginia 

Code 29.1-566) and intends to do so (Reynolds 2008). Lack of current 

threats, along with the Commonwealth's endangered species act, ensures 

the WVNFS' persistence in Virginia. See Factor B above for additional 


E. Other Natural or Manmade Factors Affecting the Continued Existence 

of the Species

Competition With Southern Flying Squirrel

    The final listing rule (50 FR 26999) concluded that the WVNFS was 

threatened by competition with the southern flying squirrel for habitat 

and by the spread of a parasite from the southern flying squirrel to 

the WVNFS. However, evidence collected since the time of listing 

indicates that the occurrence and potential severity of the southern 

flying squirrel's impacts are limited. The occurrence of the two 

subspecies has been documented at 20 percent of the known occupied 

WVNFS sites with no evidence of local extirpation of WVNFS. Over-

competition by the southern flying squirrel for den sites does not 

appear to be affecting population persistence of the WVNFS. In 

addition, any competition between the two subspecies may be somewhat 

ameliorated by the spread of beech bark disease (see Factor A above for 

further information), which results in the reduced availability of 

beech nuts, an important food source for the southern flying squirrel 

(Service 2006a, p. 18).

    The final listing rule cited evidence from a captive study in the 

1960s that a nematode parasite, possibly carried by the southern flying 

squirrel, might be lethal to the WVNFS (50 FR 26999). The rule stated 

that while the southern flying squirrels appeared healthy, all the 

northern flying squirrels weakened and died within 3 months, and this 

mortality was associated with heavy infestations of the nematode 

parasite. All the southern flying squirrels also carried the parasite, 

but they remained in apparent good health and continued to breed (50 FR 

26999). Based on review of the original dissertation, the cause of the 

northern flying squirrel mortality was never completely understood 

(Weigl 1968, pp. 129-150). Weigl et al. (1999, pp. 74-75, 2007 p. 902) 

hypothesized that survival and maturation rates of the parasite are 

limited by below-freezing temperatures that occur within the range of 

the WVNFS, but were not replicated in the 1960s captive study. The 

conditions created in the captive study apparently do not closely 

relate to naturally occurring conditions, and observations of WVNFS 

individuals captured in the last 20 years (including areas also 

occupied by the southern flying squirrel) have revealed no signs of 

sickness, debilitation, or death due to parasitic infestation.

Other Natural or Manmade Threats

    The 1985 final listing rule did not address additional threats 

under Factor E. However, the delisting criterion within the 1990 

recovery plan addressed potential threats, such as forest pests (see 

Factor A) and acid rain, to the existence of the high elevation forests 

on which the squirrels (G. s. fuscus and G. s. coloratus) depend 

(Service 1990, p. 19). These potential threats were included in the 

overall analysis of the status of the WVNFS in the 5-year review 

(Service 2006a, pp. 4-6) and are analyzed in more detail below.

    Acid rain (more appropriately referred to as acid deposition) has 

been cited as potentially damaging forest ecosystems, especially the 

spruce-fir forests in portions of the Appalachian Mountains (NAPAP 

2005, p. 41). Although empirical data are lacking regarding specific 

effects on the WVNFS, the long-term potential exists for anthropogenic 

acid deposition to diminish the extent and quality of the boreal-like 

spruce forests that have survived on the high ridges and plateaus, by 

pushing them farther up the slopes, and, if warming continues, reducing 

and eventually eliminating habitat at higher elevations. However, there 

has been no evidence of acid deposition reducing the extent of red 

spruce-northern hardwood forests in the Central Appalachians since the 

WVNFS' listing in 1985 (Service 2006a, p. 18, Adams 1999, p. 24) (See 


[[Page 50245]]

Response to Comments, I--Climate Change Concerns, Issues 4 and 5).

    Given the naturally acidic nature of soils in spruce forests, it is 

unlikely that acid deposition has contributed significantly to their 

further acidification (Johnson and Fernandez 1992, p. 262; Johnson et 

al, 1992, pp. 391, 396). These forests do not reach the very low winter 

temperatures observed farther north and have not exhibited the red 

spruce winter kill due to decreased cold tolerance that has been 

observed in the northern Appalachians and Adirondacks (Peart et al. 

1992, p. 180; DeHayes 1992, p. 296; NAPAP 2005, p. 41). Sulphate 

deposition in the Central Appalachians has dropped by at least 25 

percent in the last 10 years and pH of deposition has increased, making 

this runoff less acidic (Johnson et al. 1992, pp. 388, 391; Adams and 

Kochenderfer 2007, p. 99-100, Adams et al. 2006, pp. 4-6, 216-217). 

Deposition of nitrogen has either leveled off or may be slightly 

increasing, but the overall acid load is decreasing in high elevation 

red spruce forests of the Central Appalachians (Adams and Kochenderfer 

2007, p. 100-101; Johnson et al. 1992, p. 391; Adams et al. 2006, pp. 

4-6, 266). Also, compared to many deciduous trees, red spruce also is 

more resistant to ozone, which is often found in combination with high 

levels of acid deposition (McLaughlin and Kohut 1992, pp. 360-366; 

Adams 2007). Given the factors of naturally acidic soils, increasing pH 

of deposition, lack of extreme cold temperatures, resistance to ozone 

impacts, and lack of adverse impacts from nitrogen, there is no current 

information demonstrating a negative impact on these high elevation 

forests. Furthermore, the current trends of the decreasing overall acid 

load indicate that acid deposition is not a significant threat to the 

subspecies' habitat in the foreseeable future.

    Thus, to the extent that the effect of acid deposition on G. s. 

fuscus and its habitat are reasonably predictable, we concluded that 

they are not a significant threat to the subspecies' habitat in the 

foreseeable future.

    Summary of Factor E: Overall, our analysis of the other natural and 

manmade factors, either alone or in combination, indicates that the 

WVNFS is not in danger of extinction throughout all or a significant 

portion of its range, or likely to become endangered within the 

foreseeable future.

Conclusion of the 5-Factor Analysis

    As demonstrated in our 5-factor analysis, threats to the WVNFS have 

been abated or sufficiently minimized over the entire range of the 

subspecies. Relative to the information available at the time of 

listing, recovery actions, forest regeneration, and a reduction or 

abatement of threats have led to: (1) A significant increase in the 

number of known WVNFS captures and distinct capture locations; (2) 

verification of multiple-generation reproduction and persistence 

throughout the range; (3) proof of resiliency of the squirrels; and (4) 

the substantial improvement and continued expansion of suitable habitat 


    The biological principles under which we evaluate the rangewide 

population status of the WVNFS relative to its long-term conservation 

are representation, redundancy, and resiliency (Groves 2003, pp. 30-

32). At the time of listing, the WVNFS was thought to be an extremely 

rare and declining taxon that had disappeared from most of its 

historical range. We now know that occupancy of available habitat has 

increased and is much more widespread and well connected than formerly 

thought, and that the geographic extent of the WVNFS' range 

approximates historical range boundaries. The red spruce-northern 

hardwood forests have substantially recovered from the vast clear-

cutting at the turn of the 20th century, and continue to improve. 

Additionally, we have learned that the WVNFS has adapted to changes in 

the spruce ecosystem over the past hundred years, and can successfully 

exploit the existing habitat conditions throughout the landscape. 

Habitat patch sizes within the core of the range of WVNFS are 

sufficiently large and well connected by numerous linkages to 

facilitate adequate WVNFS dispersal among population centers (Service 

2007c, pp. 9-12). Although there remains geographic separation (and 

likely has been since the end of the Pleistocene) between a few of the 

habitat areas supporting population centers at the edge of the range, 

this habit matrix overall provides a relatively high degree of 

functional connectivity, as evidenced by constant occupancy of habitat 

across a range of forest conditions over multiple generations. The 

WVNFS has demonstrated more flexibility in its habitat use than 

previously thought, including a capacity to move freely and become 

widely dispersed. Thus, there is adequate representation (i.e., 

occupancy of representative habitats formerly occupied by the WVNFS 

across its range) and redundancy (i.e., distribution of populations in 

a pattern that offsets unforeseen losses across a portion of the WVNFS' 

range) (Service 2007c, pp. 6-12).

    Compared to most other North American tree squirrels, G. sabrinus 

demonstrates resilience and behavioral plasticity (Weigl 2007, p. 898). 

The species survived glacial advances in the Pleistocene, as well as 

widespread loss of forest cover from logging and burning in the late 

1800s/early 1900s (Weigl 2007, p. 898; Rentch et al. 2007, p. 441). 

Studies have confirmed the ability of G. sabrinus to adjust its biology 

to survive a wide range of environmental conditions, such as: The 

ability to occupy forests of varying spruce and hardwood compositions 

(Weigl 2007, p. 898-899); the ability to survive short cold snaps by 

dropping its body temperature without becoming torpid (Weigl 2007, p. 

898); the ability to generally subsist on fungi and lichens, buds, 

berries, and staminant cones, but to occasionally use mast (Weigl 2007, 

p. 898); the ability to delay reproduction in response to environmental 

variables (Weigl et al. 1999, p. 32, 79); the ability to nest in a wide 

variety of trees (Menzel et al. 2004, pp. 360, 363-364; Menzel et al. 

2006b, pp. 1-3, 6, 7; Menzel et al. 2006b, p. 208; Ford et al. 2004, p. 

430); and the ability to recolonize new habitat areas over time by 

adjusting its activity patterns to meet ecological requirements in and 

around patches of forest (Menzel et al. 2006b, p. 208).

    Survey and monitoring efforts at 109 sites over the past 21 years 

have shown a relatively high degree of population stability, as 

evidenced by a high degree of persistence and successful reproduction 

over multiple generations throughout the historical range (Service 

2007c, pp. 9-11). There is no evidence of extirpation of a local 

population or of a deleterious source-sink metapopulation dynamic 

(Service 2007c, p. 11). As previously described, the current and future 

trend for habitat quantity, quality, and connectivity is expected to be 

favorable because of the continuing recovery of the red spruce-northern 

hardwood ecosystem and the lack of rangewide threats to WVNFS habitat 

(see Factor A under the Summary of Factors Affecting the Species above, 

and Service (2007b, pp. 3-8)). As habitat availability increases into 

the future, the carrying capacity of protected habitat should continue 

to ensure persistence of populations of the WVNFS.

    Recovery efforts have provided increased attention and focus on the 

WVNFS and the habitat upon which it depends. Numerous conservation 

actions have been implemented since 1985 by land stewards, biologists, 

government agencies, and conservation groups. These include: Research 

and recovery actions specified in the 1990 recovery plan and 2001 

recovery plan update for the WVNFS; conservation

[[Page 50246]]

provisions incorporated into future expansion of the Corridor H highway 

at the edge of subspecies' range (Service 2008, pp. 3-4, 22-26; 2006b, 

pp. 4-8, 28-32); minimization and mitigation measures specified in two 

HCPs at Snowshoe Mountain, specifically the protection of approximately 

200 ac of WVNFS habitat in perpetuity [BHE Environmental, Inc. (BHE) 

2003, pp. 34-42, Appendix F; BHE 2005, pp. 49-55]; red spruce plantings 

on public and private lands; and conservation provisions in the 1986 

MNF Land and Resource Management Plan (USDA Forest Service 1986, pp. X-

1-X-3), 2004 Forest Plan Amendment (USDA Forest Service 2004, p. 84, 

84a, 84c, 87, pp. 234-234b), and 2006 Forest Plan Revision (USDA Forest 

Service 2006a, Management Prescription 4.1 and portions of 5.0, 5.1, 

6.2, and 8.0). Of particular note are the habitat protection 

initiatives that have occurred on both public and private lands, the 

development of habitat models and research on red spruce-northern 

hardwood forest restoration, and the establishment of Canaan Valley 


    In summary, all of the past, existing, or potential future threats 

to WVNFS, either alone or in combination, have either been eliminated 

or largely abated throughout all of its range. The major factor in 

listing the WVNFS was the loss of habitat due to the logging era at the 

turn of the 20th century. This threat has largely been abated as 

evidenced by the substantial recovery and continued improvement of the 

preferred habitat of the WVNFS, red spruce-northern hardwood forests. 

Therefore, we have determined that the WVNFS is not in danger of 

extinction or likely to become so throughout its range in the 

foreseeable future.

Significant Portion of the Range Analysis

    Having determined the WVNFS is not in danger of extinction or 

likely to become so in the foreseeable future throughout all of its 

range, we must next consider whether the subspecies is in danger of 

extinction or is likely to become so in the foreseeable future in any 

significant portions of its range.

    A portion of a species' range is significant if it is part of the 

current range of the species and if it is important to the conservation 

of the species because it contributes meaningfully to the 

representation, resiliency, or redundancy of the species. The 

contribution must be at a level such that its loss would result in a 

decrease in the ability to conserve the species.

    Applying the definition described above for determining whether a 

species is endangered or threatened in a significant portion of its 

range, we first addressed whether any portions of the range of WVNFS 

warranted further consideration. As discussed in Factor A--Land Use 

Planning, there is one small geographic area where localized habitat 

threats still exist due to a future road expansion. However, we 

concluded that this area did not warrant further consideration because 

this area is very small (in the context of the range of the WVNFS) and 

has no substantive effect on the viability of the subspecies, and thus 

there was no substantial information that this area is a significant 

portion of the range (see Service prepared document ``Analysis of 

significant portion of the range for the West Virginia northern flying 

squirrel'' (Service 2007b, pp. 1-6). Therefore, based on discussion of 

the threats above, we do not foresee the loss or destruction of any 

portions of the subspecies' range such that our ability to conserve the 

subspecies would be decreased. Therefore, we find that the WVNFS is not 

in danger of extinction and is not likely to become endangered in the 

foreseeable future throughout all or a significant portion of its 


Effects of the Rule

    Promulgation of this final rule will affect the protections 

afforded the WVNFS under the Act. Taking, interstate commerce, import, 

and export of WVNFS are no longer prohibited under the Act. Removal of 

the WVNFS from the List of Endangered and Threatened Wildlife does not 

supersede any State regulations. Federal agencies are no longer 

required to consult with us under section 7 of the Act to ensure that 

any action authorized, funded, or carried out by them is not likely to 

jeopardize the subspecies' continued existence. However, for the 

approximately 68 percent of the WVNFS habitat on the MNF, and the small 

area (5 percent) of habitat located within the GWNF, the activities 

impacting the WNVFS and its habitat must comply with appropriate Forest 

Service management plans. There is no critical habitat designated for 

the WVNFS.

Post-Delisting Monitoring Plan

    Section 4(g)(1) of the Act requires us, in cooperation with the 

States, to implement a monitoring program for not less than 5 years for 

all species that have been recovered and delisted. The purpose of this 

requirement is to develop a program that detects the failure of any 

delisted species to sustain itself without the protective measures 

provided by the Act. If, at any time during the monitoring period, data 

indicate that protective status under the Act should be reinstated, we 

can initiate listing procedures, including, if appropriate, emergency 


    To further ensure the long-term conservation of the WVNFS, a post-

delisting monitoring (PDM) plan has been developed that lays out a 10-

year framework to monitor the status of the subspecies (Service 2007c, 

pp. 1-27). The Plan focuses primarily on monitoring of (1) Habitat 

status and trends and (2) implementation of habitat management plans 

and agreements. Habitat changes will be tracked rangewide by 

interpretation of remote-sensed imagery obtained at or near the time of 

delisting (baseline), compared to the end of the PDM period. These data 

will be verified by a subsample of stand data and on the ground field 

checks. In addition, land managers will self-report annually on 

accomplishment of key components of land management plans or agreements 

for WVNFS, including the acreage of habitat modified (positively or 

negatively), as well as land management problems and solutions.

    The PDM plan also includes actions for monitoring of WVNFS 

distribution and persistence. The nest box and live trapping survey 

component will be largely a continuation of ongoing annual presence/

absence surveys by the WVDNR, MNF, and other participants, but with an 

increased emphasis on covering as much of the extant distribution 

within core habitat areas as possible. This will help determine if 

WVNFS continue to be present in these areas over multiple generations.

    The PDM plan identifies measurable management thresholds and 

responses for detecting and reacting to significant changes in WVNFS 

habitat, distribution, and persistence. If declines are detected 

equaling or exceeding these thresholds, the Service, in combination 

with other PDM participants, will investigate causes of these declines, 

including consideration of habitat changes, low natality, deaths or 

emigration, weather, trap shyness, competition for nest sites, or any 

other significant evidence. The result of the investigation will be to 

determine if the WVNFS warrants expanded monitoring, additional 

research, additional habitat protection, and/or resumption of Federal 

protection under the Act. At the end of the 10-year monitoring program, 

the Service will conduct a final review. It is the intent of the 

Service to work with all of our partners towards maintaining the 

recovered status of the WVNFS.

    The final PDM plan is available on the Service's northeast region 

Web site, http://www.fws.gov/ northeast/endangered.

[[Page 50247]]

Paperwork Reduction Act

    This rule does not contain any new collections of information under 

the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). An agency may 

not conduct or sponsor and a person is not required to respond to a 

collection of information unless it displays a currently valid OMB 

control number.

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 

Impact Statements, as defined under the authority of the National 

Environmental Policy Act of 1969, need not be prepared in connection 

with regulations adopted pursuant to section 4(a) of the Endangered 

Species Act. We published a notice outlining our reasons for this 

determination in the Federal Register on October 25, 1983 (48 FR 


References Cited

    A complete list of all references cited herein is available upon 

request from the West Virginia Field Office (see FOR FURTHER 



    The primary author of this final rule is Laura Hill, Endangered 

Species Biologist and species lead for the WVNFS in our West Virginia 


List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, and Transportation.

Regulation Promulgation


Accordingly, we amend part 17, subchapter B of Chapter I, title 50 of 

the Code of Federal Regulations as set forth below:



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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


2. Amend Sec.  17.11(h) is amended by removing the entry for 

``Squirrel, Virginia northern flying'' under ``MAMMALS'' from the List 

of Endangered and Threatened Wildlife.

    Dated: August 15, 2008.

Bryan Arroyo,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. E8-19607 Filed 8-25-08; 8:45 am]