Federal Register, Volume 88 Issue 243 (Wednesday, December 20, 2023)

[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Proposed Rules]
[Pages 88012-88035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27741]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2023-0179; FF09E21000 FXES1111090FEDR 245]
RIN 1018-BH06

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for West Virginia Spring Salamander and Designation of Critical
Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the West Virginia spring salamander (Gyrinophilus subterraneus),
an amphibian species from Greenbrier County, West Virginia, as an
endangered species and to designate critical habitat under the
Endangered Species Act of 1973, as amended (Act). This determination
also serves as our 12-month finding on a petition to list the West
Virginia spring salamander. After a review of the best available
scientific and commercial information, we find that listing the species
is warranted. We also propose to designate critical habitat for the
West Virginia spring salamander under the Act. In total, approximately
3.5 kilometers (2.2 miles) in Greenbrier County, West Virginia, fall
within the boundaries of the proposed critical habitat designation. We
announce the availability of a draft economic analysis of the proposed
designation of critical habitat for the West Virginia spring
salamander. If we finalize this rule as proposed, it would extend the
Act's protections to the species and its designated critical habitat.

DATES: We will accept comments received or postmarked on or before
February 20, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by February 5, 2024.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2023-0179,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R5-ES-2023-0179, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available on the Service's
website at https://www.fws.gov/office/west-virginia-ecological-services, at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-
0179, or both. For the proposed critical habitat designation, the
coordinates or plot points or both from which the maps are generated
are included in the decision file for this critical habitat designation
and are available at https://www.regulations.gov at Docket No. FWS-R5-
ES-2023-0179 and on the Service's website at https://www.fws.gov/office/west-virginia-ecological-services.

FOR FURTHER INFORMATION CONTACT: Jennifer Norris, Field Supervisor,
U.S. Fish and Wildlife Service, West Virginia Ecological Services Field
Office, 6263 Appalachian Highway, Davis, WV 26260; telephone 304-866-
3858. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please see Docket No. FWS-R5-ES-2023-0179 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), a species warrants listing if it meets the definition of an
endangered species (in danger of extinction throughout all or a
significant portion of its range) or a threatened species (likely to
become an

[[Page 88013]]

endangered species within the foreseeable future throughout all or a
significant portion of its range). If we determine that a species
warrants listing, we must list the species promptly and designate the
species' critical habitat to the maximum extent prudent and
determinable. We have determined that the West Virginia spring
salamander meets the Act's definition of an endangered species;
therefore, we are proposing to list it as such and proposing a
designation of its critical habitat. Both listing a species as an
endangered or threatened species and designating critical habitat can
be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the West Virginia
spring salamander as an endangered species under the Act, and we
propose to designate critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the West Virginia spring
salamander is endangered due to the following threats: past collection
for scientific purposes (Factor B); current climate change conditions,
including the increased magnitude of major flood events (Factor A); and
threats associated with small population size (Factor E).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species; and
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Specific information on:
(a) The amount and distribution of West Virginia spring salamander
habitat;
(b) Any additional areas occurring within the range of the species,
in Greenbrier County, West Virginia, that should be included in the
critical habitat designation because they (i) are occupied at the time
of listing and contain the physical or biological features that are
essential to the conservation of the species and that may require
special management considerations or protection, or (ii) are unoccupied
at the time of listing and are essential for the conservation of the
species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether occupied areas are adequate for the conservation of the
species, as this will help us evaluate the potential to include areas
not occupied at the time of listing. Additionally, please provide
specific information regarding whether or not unoccupied areas would,
with reasonable certainty, contribute to the conservation of the
species and contain at least one physical or biological feature
essential to the conservation of the species. We also seek comments or
information regarding whether areas not occupied at the time of listing
qualify as habitat for the species.
(5) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(6) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(7) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(8) Whether the specific area we are proposing for critical habitat
designation should be considered for exclusion under section 4(b)(2) of
the Act, and whether the benefits of potentially excluding this area
outweigh the benefits of including this area under section 4(b)(2) of
the Act.
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened

[[Page 88014]]

species must be made solely on the basis of the best scientific and
commercial data available, and section 4(b)(2) of the Act directs that
the Secretary shall designate critical habitat on the basis of the best
scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is threatened
instead of endangered, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. For critical habitat, our final designation may not include
all areas proposed, may include some additional areas that meet the
definition of critical habitat, or may exclude some areas if we find
the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species. In our
final rule, we will clearly explain our rationale and the basis for our
final decision, including why we made changes, if any, that differ from
this proposal.

Public Hearing

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

Previous Federal Actions

On April 20, 2010, we received a petition from the Center for
Biological Diversity, Alabama Rivers Alliance, Clinch Coalition,
Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council,
West Virginia Highlands Conservancy, Tierra Curry, and Noah Greenwald
to list 404 species, including the West Virginia spring salamander, as
endangered or threatened under the Act. On September 27, 2011, we
published in the Federal Register (76 FR 59836) a 90-day finding that
the petition presented substantial scientific and commercial
information indicating that listing the West Virginia spring salamander
may be warranted. This document serves as our 12-month finding for the
West Virginia spring salamander.

Peer Review

A species status assessment (SSA) team prepared an SSA report for
the West Virginia spring salamander. The SSA team was composed of
Service biologists, in consultation with other species experts. The SSA
report represents a compilation of the best scientific and commercial
data available concerning the status of the species, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing actions under the Act, we solicited independent scientific
review of the information contained in the West Virginia spring
salamander SSA report. We sent the SSA report to five independent peer
reviewers and received one response. Results of this structured peer
review process can be found at https://www.regulations.gov. In
preparing this proposed rule, we incorporated the results of the
review, as appropriate, into the SSA report, which is the foundation
for this proposed rule.

Summary of Peer Reviewer Comments

As discussed in Peer Review above, we received comments from one
peer reviewer on the draft SSA report. We reviewed all comments we
received from the peer reviewer for substantive issues and new
information regarding the information contained in the SSA report.
The peer reviewer generally concurred with our methods and
conclusions and provided additional information on the potential for
hybridization of West Virginia spring salamanders with spring
salamanders (Gyrinophilus porphyriticus). The peer reviewer also
provided suggestions for clarifications in terminology and other
editorial suggestions. We made no substantive changes to our analysis
and conclusions within the SSA report, and peer reviewer comments are
addressed in version 1.0 of the SSA report.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
West Virginia spring salamander (Gyrinophilus subterraneus) is
presented in the SSA report (version 1.0; Service 2023, pp. 13-38). The
West Virginia spring salamander is endemic to a single small cave
system (General Davis Cave) in southern Greenbrier County, West
Virginia (see figure 1, below). The West Virginia spring salamander is
a member of the Gyrinophilus complex, which are semi-aquatic or
aquatic, large-bodied, lungless salamanders with a prolonged larval
period. Limited information is available specific to the life history
of the West Virginia spring salamander. Where appropriate, we apply
what is known about other Gyrinophilus species, and specifically the
spring salamander (Gyrinophilus porphyriticus), as a surrogate for the
West Virginia spring salamander. The spring salamander is described as
one of the most common and abundant salamander species encountered in
West Virginia caves (Dearolf 1956, p. 205; Green and Brant 1966, p. 42;
Osbourn 2005, p. 12) and is the only other member of the Gyrinophilus
complex known to occur sympatrically with the West Virginia spring
salamander in General Davis Cave. Although both larval and adult stage
West Virginia spring salamanders resemble the spring salamander, the
two species can be distinguished using a suite of morphological
characteristics, genetic analyses, or both (Niemiller et al. 2009, p.
244; Niemiller et al. 2010, p. 34; Grant et al. 2022, p. 735).

[[Page 88015]]

[GRAPHIC] [TIFF OMITTED] TP20DE23.000

Figure 1. Location of General Davis Cave in Greenbrier County, West
Virginia.
West Virginia spring salamanders inhabit aquatic habitats within
the General Davis Cave system, including the cave stream, rimstone
pools, drip pools, and seeps; adults also are found on the steep, muddy
streambanks. West Virginia spring salamanders are found in the first
450 meters (m) (1,476 feet (ft)) (the maximum length that has been able
to be accessed and sampled) of the General Davis Cave stream and on its
banks, while spring salamanders are generally found in the first 200 m
(656 ft) of the cave stream (Grant et al. 2022, p. 733). Nest sites
have not been located, but it is thought that females lay eggs attached
to submerged or partially submerged rocks or logs. Based on the one
known observation of a gravid female West Virginia spring salamander in
October, we suspect that the reproductive period for the West Virginia
spring salamander is similar to those of cave-dwelling spring
salamander populations and other members of the Gyrinophilus complex,
which is from fall to early winter. We also assume the species has
characteristics of other cave species and is relatively long-lived
(approximately 9 to 20 or more years), with lower metabolic and growth
rates, reduced reproduction, and slower development than their epigean
(aboveground) relatives.
West Virginia spring salamanders are considered generalist
predators that feed mainly on small invertebrates found in the General
Davis Cave stream and on its banks (Besharse and Holsinger 1977, p.
627; Osbourn 2005, pp. 159-161; Fong et al. 2007, pp. 145-146; Huntsman
et al. 2011, p. 1753; Grant et al. 2018, p. 1).
The Nature Conservancy in West Virginia owns the main entrance to
General Davis Cave and has a conservation easement on the cave passage.
The main entrance to General Davis Cave is gated, and, since 1981, The
Nature Conservancy has granted access for only a select group of
researchers and cave mappers. The surface land above the cave is
privately owned.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered

[[Page 88016]]

species or a threatened species because of any of the following
factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain;'' it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the West Virginia spring salamander's viability, we used
the three conservation biology principles of resiliency, redundancy,
and representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time, which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R5-
ES-2023-0179 on https://www.regulations.gov and at https://www.fws.gov/office/west-virginia-ecological-services.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
condition, in order to assess the species' overall viability and the
risks to that viability.

Hydrogeological Setting

General Davis Cave is located in the Davis Hollow subwatershed
within the Greenbrier Valley. The cave system under Davis Hollow, which
includes General Davis and Sinks of the Run Caves, is a relatively
simple cave system, compared to the complexity of many other systems in
karst topography, in that the cave system has one main subterranean
stream course. The primary source of water for the General Davis Cave
stream is the unnamed surface stream that enters the Sinks of the Run
Cave through a swallet hole (opening where a stream descends
underground) (Jones 2018, p. 33). Ninety percent of the water entering
the Davis Hollow drainage basin enters at

[[Page 88017]]

Sinks of the Run Cave and continues through to enter the General Davis
Cave through a siphon at the upstream extent of General Davis Cave
(Jones 1997, pp. 20, 24, 32).
General Davis Cave has approximately 4,000 m (13,123 ft) of mapped
passage, and is essentially one, long narrow stream passage that heads
north/northeast from the main cave entrance. The cave can readily be
traversed for approximately the first 450 m (1,476 ft) until a
significant breakdown occurs; after that point, the cave can only be
traversed by experienced cavers (Oxenrider 2021, pers. comm.; Grant et
al. 2022, p. 733). For the first 450 m (1,476 ft), the stream banks are
very steep and made of soft clay and mud on both sides, with deposits
of coarse and fine particulate organic matter (Besharse and Holsinger
1977, p. 627; Bartkus 2009, p. 41; Niemiller et al. 2010, p. 34; Grant
et al. 2022, p. 741). The cave banks are composed of organic material
(mainly leaf litter) and can be up to 1.0 m (3.2 ft) deep in some areas
along the cave stream, most notably in areas where small side passages
flow into the main cave (Niemiller et al. 2010, p. 39). The streambed
in this portion of the cave consists mainly of small cobble and gravel
substrate, interspersed with long stretches of silt, mud, and periodic
leaf litter buildup with occasional bedrock exposure (Bartkus 2009, p.
41; Niemiller et al. 2010, p. 34; Brand 2021, pers. comm.).
There are two major landowners within Davis Hollow drainage.
Approximately 450 acres (ac) (182 hectares (ha)) in the southern part
of Davis Hollow directly over General Davis Cave has been privately
owned by one family for more than 200 years. Over this time,
approximately 100 ac (40 ha) of the property has been used mainly as
pasture for cattle grazing, with the rest being maintained as forest
that has been subjected to occasional harvests (Powell 2021, pers.
comm.). In the northern part of Davis Hollow, above the Sinks of the
Run Cave and the area surrounding the headwaters of the unnamed surface
stream that sinks and flows through both cave systems, approximately
500 ac (200 ha) are owned by a private timber company. We have no
information on the management of this forested area, although timber
harvests have been proposed in the past (Hammerson and Jackson 2019, p.
3). The Nature Conservancy owns approximately 1.56 acres (0.63 hectare)
at the entrance to General Davis Cave and restricts access.

Species Needs

Based upon the best available scientific and commercial
information, and acknowledging existing ecological uncertainties, the
resource and demographic needs for breeding, feeding, sheltering, and
dispersal of the West Virginia spring salamander include: (1) adequate
freshwater availability (water quantity), (2) sufficient water quality,
(3) appropriate cave habitat, and (4) sufficient allochthonous
materials (organic material originating outside the cave) to provide a
prey base. We provide a summary here of each of the species needs; a
more detailed review of the species needs can be found in the SSA
report (Service 2023, pp. 38-41).
Adequate Freshwater Availability (Water Quantity)
Water availability is fundamental to the survival of the West
Virginia spring salamander. All life stages rely on sufficient flow as
their source of oxygenated water and for habitat availability during
important life stages. West Virginia spring salamanders require
sufficient water quantity for nests to be submerged or partially
submerged during egg laying (Niemiller et al. 2009, p. 67). We assume
that shallow pools and riffle habitat in the cave stream with water
depths from 13-30 centimeters (5.9-11.8 inches) are needed for all life
stages (Besharse and Holsinger 1977, p. 627; Niemiller et al. 2010, pp.
36-37, 39; Oxenrider 2021, pers comm.; Grant et al. 2022, p. 729).
Water Quality
There is little information about specific water quality parameters
necessary to support the species. However, we consider appropriate
water quality as exhibiting the conditions present during species
surveys and water sampling in 2003, 2004, and 2018. Water conditions in
the cave stream of General Davis Cave were cool and well-oxygenated
with a neutral to slightly basic pH (7.0-7.9), temperatures between
10.0-11.8 degrees Celsius (50.0-53.2 degrees Fahrenheit), dissolved
oxygen around 8.2-9.9 milligrams per liter (mg/l), and no evidence of
pesticides, herbicides, or other contaminants or pollutants (Osbourn
2005, pp. 24, 31; Grant et al. 2022, p. 736; U.S. Geological Survey
(USGS) 2022, entire).
Cave Habitat Quality and Allochthonous Material Supply
West Virginia spring salamanders require cave habitat that provides
interstitial spaces, drip pools, rimstone pools, and other spaces
isolated from the main cave stream for larval-stage individuals to
escape predation and/or strong flooding events, and for adults to
escape flooding events and secure suitable nest sites (Niemiller et al.
2010, p. 39; Miller 2018, pers. comm.). Additionally, rocks or objects
suitable for larvae and adults to use as cover objects within the
stream are needed, as well as a sufficient amount of allochthonous
material to support the species' prey base.

Threats Influencing the West Virginia Spring Salamander

The primary threat facing the West Virginia spring salamander is
impacts from current climate change conditions, including the increased
frequency and intensity of major flood events (Factor A). Secondary
threats potentially impacting the species in conjunction with the
primary threat include past collection for scientific purposes (Factor
B) and factors associated with small population size (Factor E).
Although human collection of West Virginia spring salamanders is no
longer considered a threat, past collection of salamanders has likely
had a negative impact on their current status. In the SSA report
(Service 2023, pp. 86-91), we evaluated other threats that could impact
the West Virginia spring salamander, including habitat alteration from
changes in land use (Factor A), disease (Factor C), hybridization
(Factor E), and other climate change impacts including drought (Factor
A), but we found that these threats are not currently impacting the
species. Below, we provide an overview of the factors that have
influenced the current condition of the West Virginia spring
salamander.
Flood Events
General Davis Cave is a stream-passage cave prone to some degree of
flooding on an annual basis (Pauley et al. 1985 p. 2; Osbourn 2005, p.
69). The intensity of these yearly flooding events is uncertain, but
debris and mud have been observed on the cave ceiling, on stalactites,
and well above stream elevation, indicating occasional strong flood
events that would fill the entire cave (Grant et al. 2022, p. 741).
Recent preliminary monitoring of the Sinks of the Run Cave has
indicated that it has a consistent flood response at various times
throughout the year, likely in response to local precipitation events
with short-lived flood pulses (lasting hours to a day), particularly
during repeated rainfall events across multiple days (Brooks 2020,
pers. comm.). Given the connectedness and proximity of Sinks of the Run
Cave to General Davis

[[Page 88018]]

Cave, we assume General Davis Cave has a similar flooding regime, with
peak flows moderately above average flow, occurring in response to
local precipitation events.
Major (catastrophic) flood events are defined by the National
Weather Service (NWS) as events causing extensive inundation of
structures and roads, and typically have a 50- to 100-year recurrence
interval (NWS 2023, entire). There have been 17 catastrophic flood
events across West Virginia since recordkeeping began in 1844; 6 of
these have occurred in the Greenbrier River watershed where the General
Davis Cave is located (Wiley and Atkins 2010, p. 4; Thurkettle 2019, p.
17; Austin et al. 2018, p. 11). The USGS gauging station at Alderson,
West Virginia, located approximately 10.1 kilometers (km) (6.3 miles
(mi)) downstream of General Davis Cave, is the nearest gauging station
and, given its proximity, likely reflects major flood events around
General Davis Cave. When the river gauge reaches approximately 4.2 m
(14.0 ft) at Alderson, it triggers the flood stage warning.
Yearly peak flows at the Alderson gauge station have been
increasing over the past 125 years, and three catastrophic flooding
events have occurred in the area within the past 36 years (1985 to
2021). In 1985, a strong storm system caused a flood event, during
which water reached 7.3 m (23.9 ft) at the Alderson gauge. This is the
second highest recorded water level at this gauge since monitoring
began in 1844 (Grote et al. 2019, p. 8; Thurkettle 2019, p. 25;
National Oceanic Atmospheric Administration (NOAA) 2022, entire). In
1996, a widespread rain-on-snow flooding event caused flooding
throughout the Mid-Atlantic and Appalachian regions and caused the
highest ever flood levels recorded in the area, with the Alderson gauge
topping out at 7.4 m (24.3 ft) (Grote et al. 2019, p. 8; Thurkettle
2019, p. 25; NOAA 2022, entire). In 2016, the third largest flood event
was recorded, with water levels reaching approximately 6.7 m (22.0 ft)
(Grote et al. 2019, p. 9; Thurkettle 2019, p. 25; NOAA 2022, entire).
Additionally, catchment basins in the Greenbrier Valley are known
to be very flashy in response to storm events (Jones 1997, pp. 48-51;
Jones 2018, pp. 23-24), and anecdotal observations provide evidence
that localized flooding events have occurred in Davis Hollow but were
not recorded as flood-stage events at a large scale. For example, in
January 2006, the secondary overflow entrance to General Davis Cave,
which is located near the ceiling of the cave, was observed to be
flooded (Powell 2021, pers. comm.; Service 2023, p. 59). Flow from the
secondary entrance is an uncommon event and would occur only at very
high water levels within General Davis Cave. Accordingly, we assume
that flood events occur on a more frequent basis (albeit, an unknown
frequency) in Davis Hollow than in the Greenbrier River watershed, due
to the topography and flashy nature of Davis Hollow, and because of
this observation of flood waters flowing from the cave entrance when no
flood stage was indicated in the Greenbrier River (Service 2023, p.
121).
The flood return interval for the major floods in the Greenbrier
River watershed in 1996 and 2016 is estimated at 50 to 200 years and
200 to more than 500 years, respectively (Thurkettle 2019, pp. 69-70;
Grote et al. 2019, p. 19). However, these flood events occurred within
20 years of each other. This increased frequency of recent major flood
events, combined with the rising level of peak flows for the Greenbrier
River at Alderson, indicates that major flood events are increasing in
both frequency and intensity in the area, as is predicted with most
climate change models (Service 2023, pp. 69-71, 110-112).
Flooding has long been recognized as a key disturbance in karst
ecosystems and described as being important to cave fauna (Hawes 1939,
entire), but the specifics of how flood events affect cave species and
cave communities are largely unstudied (Niemiller et al. 2010, pp. 37-
38; Simon 2019, p. 226). The basis of the food web in most caves is
allochthonous input, and for caves with limited surface connectivity,
such as General Davis Cave, these organic materials are mainly
transported into the cave via the cave stream during flood events
(Service 2023, p. 39). Thus, cave fauna is dependent on some degree of
periodic flooding. The right balance of flood intensity and frequency
that will replenish organic material in General Davis Cave, but also
maintain suitable habitat, while only displacing a minimum number of
individuals from the cave and allowing suitable recovery time for the
population, is vital for the continued viability of the West Virginia
spring salamander.
Many cave species, including crayfish, fish, copepods, and other
cave-obligate salamanders are known to be swept out of caves during
severe flood events, or can be displaced to areas within the cave that
have fewer resources or more stressors (Juberthie 2004, p. 766;
Graening et al. 2006, pp. 377, 379; Aljan[ccaron]i[ccaron] et al. 2014,
p. 72; Bradley 2018, p. 49; Service 2019, p. 22; Miller 2021, pers.
comm.). Other potential effects of flood events are large sediment and
debris deposits, which may reduce habitat by burying rock substrates.
Thus, food sources, areas available for egg deposition, and escape
cover may be compromised.
Extreme variation in precipitation events impacts survivorship of
some cave-dwelling or cave-associated salamanders (Rudolph 1978, p.
155). Similarly, flooding events or extreme variability in stream flows
may alter the demography of some surface stream-dwelling salamanders
(Nickerson et al. 2007, pp. 115-116; Lowe et al. 2019, pp. 19564-
19565). For example, Lowe et al. (2019, pp. 19565-19566) found that
larger-sized larval spring salamanders were inordinately affected by
altered stream flows, as, unlike smaller larvae, they were too large to
bury into interstitial spaces in the streambed to avoid strong floods
or drought conditions, and yet unable to leave the stream for
terrestrial refuge, as adults are expected to do. Thus, over time, the
lower survivorship of larger-sized larvae contributed to a decline in
overall abundance of the population. We may expect the different life
stages of the West Virginia spring salamander to behave in a similar
fashion during typical flooding events to avoid or limit physical
exposure to flood waters and debris. It is likely that small West
Virginia spring salamander larvae would bury into the interstitial
spaces of the stream substrate, while adults retreat to side channels
out of the main cave stream or find refuge under larger cover items.
However, as with the spring salamander, later stage West Virginia
spring salamander larvae may be too large to get into interstitial
spaces in the cave stream but are unable to move out of the cave stream
to seek shelter in other areas of the cave during altered streamflow
(Lowe et al. 2019, pp. 19565-19566), leaving this life stage especially
vulnerable to flood events.
Collection
There are at least 40 West Virginia spring salamander specimens
that have been collected from the General Davis Cave between 1973 and
1988 (Besharse and Holsinger 1977, p. 625; VertNet 2023, entire;
National Museum of Natural History (NMNH) 2023, entire). However, there
is an unknown number of specimens not recorded in online collections
records. For example, there are at least two specimens that were not
included in any of these records (Pauley 2021, pers. comm.).
Eighteen individuals, both adults and larvae of different sizes,
were removed from General Davis Cave from 1973 to

[[Page 88019]]

1975 (Besharse and Holsinger 1977, p. 625). The second significant
collection event occurred in 1976 and 1977, when Blaney and Blaney
(1978, entire) removed at least 12 more adult stage individuals from
the cave in October 1976 (2 individuals) and October 1977 (10
individuals). It is unknown how many larval-stage individuals were
collected during this event (Pauley et al. 1985, p. 1). Two additional
individuals (unknown life stage) were removed from General Davis Cave
in 1980, five individuals (unknown life stage) were collected in 1984,
and three individuals (unknown life stage) were collected in October
1988 (Howard et al. 1984, pp. 3-4; VertNet 2023, entire; NMNH 2023,
entire).
While all collection events affect the West Virginia spring
salamander at an individual level, it is also likely that these past
collection events had negative effects at the population and species
level. Because the species is believed to breed infrequently and
exhibits life-history characteristics typical of other cave
Gyrinophilus species (and other cave fauna), in which individuals have
slow growth rates, reduced reproduction, slower development, a long
larval period, and longer lifespans, these collection events are more
likely to have a negative impact on the population, due to the length
of time needed to replace lost individuals. Furthermore, since adult
female West Virginia spring salamanders are believed to be gravid from
late fall to early winter, the removal of a relatively high number of
adults in the fall (October), at least some of which were female, is
likely to have further reduced the reproductive capacity of the
species.
While these past collection events have had a direct impact on the
West Virginia spring salamander at the individual level, and likely at
the population and species level (see Current Condition, below), we
know of no additional individuals being removed from General Davis Cave
in more than three decades (last documented collection was in 1988).
However, there have been at least three instances of researchers taking
tissue samples (tail tips) for genetics work. While this type of
sampling typically causes little negative effect to individual
salamanders, as they readily regenerate lost body parts (including tail
tips), there is uncertainty about the effect of this type of sampling
on the West Virginia spring salamander. Given the presumptive low
metabolic and growth rates of the West Virginia spring salamander,
individuals may be slow to recover, and it is possible that the energy
expenditure of regenerating a tail tip could translate into some
reduction in reproductive output or survivorship for individuals.
However, it is also possible that individuals losing tail tips during
encounters with predators is not uncommon and individuals are able to
recover with little effect. A larval West Virginia spring salamander
with a missing tail tip was documented during the 2018 survey of
General Davis Cave (Grant et al. 2018, p. 12).
We estimate it is likely that any further scientific collection of
the West Virginia spring salamander would occur sparingly and would be
limited to tissue samples, rather than individuals. Furthermore, West
Virginia State Code (chapter 20, article 7A, section 20-7A-4) prohibits
the removal of cave organisms from any cave within the State, unless a
scientific collection permit is issued by the West Virginia Department
of Natural Resources (DNR). West Virginia State regulations at title
58, series 73, sections 58-73-1 through 58-73-5 (known as the State
reptile and amphibian rule) prohibit the take and possession of most
salamander species in the State, including the West Virginia spring
salamander.
In summary, past collection of a relatively large number of West
Virginia spring salamanders from the General Davis Cave has likely
impacted species viability. Because the species is believed to have
slow growth rates, reduced reproduction, and a long larval period, past
collection events are more likely to have a negative impact on the
population due to the length of time needed to replace lost
individuals. Furthermore, since adult females are believed to be gravid
in fall and winter, the removal of a relatively high number of adults
in the fall, at least some of which were female, is likely to have
further reduced the reproductive capacity of the species.
Cave Species Characteristics and the Effects of Small Population Size
The West Virginia spring salamander's small population size and
restricted range contribute to its vulnerability to impacts from
catastrophic flooding. Cave species, such as the West Virginia spring
salamander, have geographically restricted ranges, are typically
numerically rare (i.e., found at low abundance), generally have a low
tolerance for changes in abiotic conditions, and tend to have lower
metabolic and growth rates and reduced reproduction than surface
populations; thus, they are vulnerable to even relatively minor or very
localized disturbances in their environment (Urich 2002, p. 42;
Niemiller et al. 2010, p. 40; Culver and Pipan 2019, p. 226; Mammola et
al. 2019, p. 646; Niemiller and Taylor 2019, pp. 824-825). The ability
of a population to recover from human-caused change (e.g., collection)
in their environment or a stochastic or catastrophic event (e.g.,
flooding) leading to the loss of individuals or suitable habitat is
limited for cave species, as their populations cannot be as readily
augmented by the immigration of new individuals (as in surface
populations), they seldom have the capability or option of moving to
another suitable habitat, and their life histories are such that it
will take a longer period of time (due to their lower growth rates,
reduced reproduction, and slower development than their aboveground
relatives) to recover to pre-disturbance numbers.
The reduced genetic diversity that is typical of small populations
further complicates recovery for cave-dwelling species, as small
populations are often associated with a higher likelihood of
individuals with decreased fitness (the ability to produce viable
offspring) and greater expression of deleterious recessive genes
(Allendorf and Luikart 2007, pp. 306, 315). With small populations,
genetic drift (random change in gene frequencies) is also more likely
to result in reduced genetic diversity, which may cause the loss of
genes that help allow populations to adapt to environmental change.
These factors can increase the likelihood of extirpation (Allendorf and
Luikart 2007, p. 355). Thus, populations of cave species that are
subjected to an ecological stress that results in a reduction of
individuals will have a smaller breeding population size for a longer
period of time (compared to their aboveground relatives), increasing
the risk of extinction (Urich 2002, p. 42; Culver and Pipan 2019, p.
230; Niemiller and Taylor 2019, p. 825).
The West Virginia spring salamander is a single-site endemic with a
troglobitic (cave-dwelling) life-history and which has likely always
been isolated in a restricted range that supports a small population
with limited genetic diversity. However, the species has apparently
been able to maintain population viability with this low level of
genetic diversity for presumably thousands of years. Thus, for some
narrow endemics, such as the West Virginia spring salamander, the low
level of genetic diversity inherent in the species may not necessarily
translate into deleterious genetic effects leading to reduced fitness
of individuals within the population, as described above. However, at
the species level, low

[[Page 88020]]

genetic diversity poses an inherent vulnerability, because the species
may lack the behavioral, morphological, or genetic diversity that would
allow it to readily adapt to alterations to the cave habitat, with
potentially significant negative impacts to the species (Niemiller et
al. 2010, p. 40; Miller 2018, pers. comm.; West Virginia DNR 2020, p.
81; Grant et al. 2022, p. 741).
In summary, the West Virginia spring salamander is assumed to
exhibit multiple life-history elements characteristic of cave fauna
(slow metabolic and growth rates, breeds biennially at a maximum, low
clutch sizes, and extended time in the nonbreeding or larval stage)
that limit its ability to recover from stressors and disturbance
events. While the West Virginia spring salamander has low genetic
diversity (Grant et al. 2022, p. 734), it is not clear that this has
resulted in deleterious effects on individuals. However, at the species
level, lower genetic diversity means that the species has less capacity
to adapt to changes in its environment or reductions in its population
size.

Current Condition

Resiliency
Resiliency is the ability of a species to withstand environmental
and demographic stochasticity. Resiliency is measured based on metrics
of population health, such as the size and growth rate of populations
and how quickly they are able to rebound in numbers after an event
results in loss of individuals or populations. For a species to
maintain viability, its populations, or some portion of its
populations, must be sufficiently resilient. For the West Virginia
spring salamander, only one population (in the General Davis Cave) is
known to exist. Stochastic events that have the potential to affect the
West Virginia spring salamander include extreme weather events (such as
flooding) and the introduction of disease.
To evaluate current resiliency, we evaluated abundance data and
trends in population growth rate (Grant et al. 2022, pp. 736, 738-740);
these data are considered the best available information and encompass
the entire 45-year period over which abundance data were collected
(from 1973 to 2018; see table 1, below; Service 2023, pp. 101-102).
Overall population abundance is difficult to quantify given surveys
have only been conducted within the first 450 m (1,476 ft) of the cave.
The rest of the cave is inaccessible and not logistically amenable to
standard sampling, which limits our ability to truly evaluate
population abundance for this species. That said, multiple surveys have
been conducted for this species since 1973 and provide our best
estimate of the current population status.
There was high variation in the observed number of individuals
during the 1973-2018 survey period (see table 1, below). The highest
number of individuals observed during a survey event was 34 salamanders
in 1979, and the lowest number of individuals observed during a survey
event was 2 salamanders in 2001 (see table 1, below). The most recent
survey in 2018 reported six West Virginia spring salamanders (five
adults and one larval stage individual).

Table 1--Survey Data for the West Virginia Spring Salamander in General Davis Cave From 1973 Through 2018
----------------------------------------------------------------------------------------------------------------
Length of cave
Date Adult Larvae Total surveyed in
meters1 2
----------------------------------------------------------------------------------------------------------------
October 1973............................................. 1 3 4 180
1973 or 1974............................................. \3\ N/A \3\ N/A 14 \3\ N/A
September 1974........................................... \3\ N/A \3\ N/A 11 \3\ N/A
May 1975................................................. 6 1 7 290
September 1976........................................... 1 7 8 290
October 1978 and October 1979............................ 15 \3\ N/A 15 \3\ N/A
September 1979........................................... 34 0 34 213
September 1979........................................... 10 2 12 290
April 1980............................................... 14 1 15 213
June 1980................................................ 4 13 17 213
July 1982................................................ 2 3 5 290
1982..................................................... 4 5 9 \3\ N/A
July 1983................................................ 4 8 12 290
September 1984........................................... 3 9 12 290
May 1985................................................. 9 4 13 213
September 1986........................................... 1 6 7 290
October 1988............................................. 1 13 14 290
September 1990........................................... 1 6 7 290
October 1993............................................. 0 5 5 290
September 1995........................................... 0 5 5 290
October 1998............................................. 2 6 8 290
September 2001........................................... 0 2 2 290
August 2002.............................................. 3 23 26 290
October 2003............................................. 3 12 15 290
August 2007.............................................. 1 28 29 290
October 2008............................................. 1 15 16 290
January 2015............................................. 2 5 7 450
August 2018.............................................. 5 1 6 450
----------------------------------------------------------------------------------------------------------------
\1\ All surveys begin at the intersection of the cave entrance and the cave stream.
\2\ Length of cave surveyed is reported in meters and is considered an approximation.
\3\ N/A indicates information that is not available.

[[Page 88021]]

Over the past 45 years, surveys have recorded high variation in the
counts observed for the West Virginia spring salamander (Grant et al.
2022, pp. 739-740; see figure 2, below). Because the length of the cave
surveyed differed among sampling occasions, Grant et al. (2022, pp.
733, 740) calculated an observed density of salamanders for each survey
occasion (count per meter). After accounting for high variation in the
counts, Grant et al. (2022, p. 736) found that the observed population
density of the West Virginia spring salamander in General Davis Cave
appears to have declined over the 45-year sampling period and the
overall population growth rate is negative (Grant et al. 2022, p. 738;
see figure 2, below). Calculating the probability of decline over the
entire dataset resulted in an 81.4 percent probability that the West
Virginia spring salamander population is in decline (Grant et al. 2022,
p. 736). Even when the results of the two most recent survey efforts
(2015 and 2018), which had fewer individuals overall, are excluded from
analysis, the West Virginia spring salamander population still exhibits
a declining population trend, with the probability of population
decline approximately 57.6 percent. The observed density of the West
Virginia spring salamander over the 45-year survey period was 0.049
individuals per meter of cave stream and bank surveyed, although most
surveys completed since 1990 have had densities lower than this overall
mean (Grant et al. 2022, p. 736).
[GRAPHIC] [TIFF OMITTED] TP20DE23.001

Figure 2. Trends in West Virginia spring salamander abundance and
growth rate based on 24 surveys in General Davis Cave from 1973 to
2018. The line is the fitted mean, the observed data are the open
circles, and the 95 percent confidence interval is shaded in gray.
Figure modified and used with permission from Grant et al. (2022,
entire).
Summary of Current Resiliency
The West Virginia spring salamander appears to be experiencing a
population decline, with lower numbers of salamanders observed in
recent survey years (Grant et al. 2022, p. 736). The number of
individuals collected, the timing of those collections, and the current
overall low number of West Virginia spring salamanders in General Davis
Cave (six salamanders) have likely contributed to the negative
population growth trend. Since current trend data indicate a negative
population growth, we consider current resiliency for the West Virginia
spring salamander to be low. The reason(s) behind this population
decline remain unclear. At present, the cave habitat, water quality and
quantity, and supply of allochthonous material in General Davis Cave
appear to be in good condition (Service 2023, pp. 96-97). We could find
no evidence of major changes in land use within Davis Hollow since
before 1950, and the water quality of the cave and surface stream were
unimpaired as of 2018 (Grant et al. 2022, p. 737; USGS 2022, entire).
However, past collection of a relatively large number of West Virginia
spring salamanders from the General Davis Cave has likely had a
negative impact on the population due to the length of time needed to
replace lost individuals, specifically from catastrophic flooding
events. In the past 35 years, there has been an increase in the
frequency of storm events leading to higher intensity flooding in Davis
Hollow and in the Greenbrier River watershed, which may have directly
affected the number of West Virginia spring salamanders in General
Davis Cave. Because we know that cave fauna can be killed or displaced
from caves or moved around within caves during flood events (Hawes
1939, pp. 3-4; Barr 1967, pp. 476, 485), we postulate that individual
West Virginia spring salamanders are negatively impacted during intense
flood events. The most recent flood event in 2016 in General Davis Cave
reached such high levels that the entire cave, floor to ceiling, was
filled with flood waters and bits of debris were left on the cave
ceiling (Grant et al. 2022, p. 741). Given the increase in frequency
and intensity of storm events projected with current climate change
models, we expect effects on individuals from

[[Page 88022]]

higher intensity floods to continue, with the potential for the reduced
recovery time between such events to compound these impacts, resulting
in a continued reduction in species viability (Service 2023, pp. 108-
118).
Redundancy
Redundancy is defined at the species level and is a measure of a
species' ability to withstand natural or anthropogenic catastrophic
events. Redundancy is about spreading the species-level risk, as
measured through the distribution of populations (or individuals in a
large population) across the species' range. Redundancy guards against
potential species-level risks, such as hurricanes, intense drought, or
variable precipitation (including extreme flooding). Greater redundancy
is exhibited when a species' populations are not completely isolated
and when movement between populations is achievable. The West Virginia
spring salamander is an endemic species found in a single cave in
Greenbrier County, West Virginia. As initially described, and at
present, all individuals have been observed within the first 450 m
(1,476 ft) of the cave due to lack of access beyond that point. Even if
the entire cave system were occupied, the species is likely restricted
to a single population, thus, we consider this species to have no
redundancy.
Representation
Representation is the ability of a species to adapt to both near-
term and long-term changes in its physical and biological environments.
It can be measured through ecological diversity (environmental
variation) and genetic diversity within and among populations. Based on
a recent analysis of genetic data, the West Virginia spring salamander
has relatively low genetic diversity (Grant et al. 2022, p. 734), which
is somewhat expected in a species with a small population (Service
2023, pp. 13-23). As there is only one cave population, we do not
expect any significant behavioral or ecological variation within this
population (Mammola et al. 2019, entire). Thus, we consider
representation of the West Virginia spring salamander to be inherently
low.
Summary of Current Condition
The species currently has low resiliency with only six individual
salamanders detected in the most recent survey in 2018, and an overall
declining population growth rate. The species is not considered to have
redundancy since it is a narrow, cave endemic found only within the
General Davis Cave. Representation is considered to be low given the
overall low genetic diversity and low morphological and ecological
variability.
As part of the SSA, we also developed three future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the West Virginia spring
salamander. Our scenarios assumed a moderate or enhanced probability of
more frequent flood events, and either changes in land use (that would
impact water quality in the cave) or no changes in land use. Because we
determined that the current condition of the West Virginia spring
salamander is consistent with an endangered species (see Determination
of the West Virginia Spring Salamander's Status, below), we are not
presenting the results of the future scenarios in this proposed rule.
Please refer to the SSA report (Service 2023, pp. 108-118) for the full
analysis of future scenarios.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.

Conservation Efforts and Regulatory Mechanisms

The Nature Conservancy owns a conservation easement at the General
Davis Cave passage, and holds the title to the main entrance, which is
thought to be the only entrance accessible to humans. The Nature
Conservancy installed a gate at the cave entrance in 1981 to restrict
access and, since that time, has approved cave access requests only
sparingly. For example, just three entry requests by researchers and/or
cave mappers have been approved in the past 14 years (Powell 2021,
pers. comm.).

State Conservation Actions and Laws

The West Virginia spring salamander is listed as a Priority 1 (S1)
Species of Greatest Conservation Need in the West Virginia State
Wildlife Action Plan (West Virginia DNR 2015, p. 25). West Virginia DNR
has also developed an individual cave management plan for General Davis
Cave, which provides broad guidelines for conservation of the cave, and
includes protection of groundwater and surface water resources, the
pursuit of general cave conservation actions, and restriction on
visitation to the cave (West Virginia DNR 2020, p. 81). However, the
extent to which this cave management guidance can be implemented
remains unclear, as the surface above the cave system remains privately
owned and the guidelines within the management plan remain voluntary.
Since 1977, General Davis Cave (and all caves in the State) are
afforded some legal protection under West Virginia State Code (chapter
20, article 7A). This State law protects the cave habitat itself, by
making it illegal in West Virginia for any person, without express,
prior, written permission of the owner, to willfully or knowingly cause
disturbance of any type to the cave (West Virginia State Code, chapter
20, article 7A, section 20-7A-2; West Virginia DNR 2020, p. 6). Cave
organisms (including plants) are also protected from collection without
a scientific collection permit from West Virginia DNR (West Virginia
State Code, chapter 20, article 7A, section 20-7A-4). Additionally,
West Virginia recently passed its State reptile and amphibian rule
(West Virginia State regulations at title 58, series 73, sections 58-
73-1 through 58-73-5). This rule, which went into effect on March 23,
2021, bans the possession of 80 species of herpetofauna, including the
West Virginia spring salamander.

Federal Laws

While there are no Federal cave protections offered to caves that
are not located on Federal lands, General Davis Cave does have a known
wintering colony of the federally endangered Indiana bat (Myotis
sodalis). Therefore, the Act offers some protection for species within
General Davis Cave, as disturbance to the cave from any Federal action
would be required to go through section 7 consultation under the Act.
While any section 7 consultation would be specific to listed bats and
may not necessarily provide protections for other species within the
cave, access to the cave during the Indiana bat's hibernation season
(November 15 through March 31) is restricted and would provide
additional protections for the West Virginia spring salamander during
that time period.
It is also unlawful under the Lacey Act (see 16 U.S.C.
3372(a)(2)(A)) to import, export, transport, sell, receive,

[[Page 88023]]

acquire, or purchase in interstate or foreign commerce any wildlife
taken, possessed, transported, or sold in violation of any law or
regulation of any State. Because the possession of West Virginia spring
salamanders is illegal in West Virginia, interstate or international
sale of individuals collected is prohibited by the Lacey Act.

Determination of the West Virginia Spring Salamander's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, the West Virginia spring salamander has limited resiliency,
redundancy, and representation in order to maintain viability over
time. Only one population of West Virginia spring salamander is known
to exist (within General Davis Cave, Greenbrier County, West Virginia),
and this population currently has low resiliency. The last survey in
2018 observed only six individuals (five adults and one larval stage
individual) and supported an overall negative population growth trend.
Because there is only one known population, the species has no
redundancy. A single catastrophic event, such as a severe storm that
results in major flooding, could result in the extinction of the
species. As there is only one cave population for this species, we do
not expect any significant behavioral, ecological, or genetic variation
within this population, and the species is considered to have low
representation. The current and projected near-term increase in the
frequency of catastrophic floods exacerbates the current condition for
the West Virginia spring salamander. We do not find the West Virginia
spring salamander meets the definition of a threatened species because
the species has already shown declines in abundance and resiliency of
its population. Because the West Virginia spring salamander lacks
redundancy and representation is limited, the species is vulnerable to
catastrophic flooding events. Thus, after assessing the best available
information, we conclude that the West Virginia spring salamander is in
danger of extinction throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the West Virginia spring
salamander is in danger of extinction throughout all of its range and
accordingly did not undertake an analysis of any significant portion of
its range. Because the West Virginia spring salamander warrants listing
as endangered throughout all of its range, our determination does not
conflict with the decision in Center for Biological Diversity v.
Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), which vacated the provision
of the Final Policy on Interpretation of the Phrase ``Significant
Portion of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (79 FR 37578; July 1,
2014) providing that if the Service determines that a species is
threatened throughout all of its range, the Service will not analyze
whether the species is endangered in a significant portion of its
range.

Determination of Status

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

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our West Virginia

[[Page 88024]]

Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their ranges may occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of West Virginia would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the West Virginia spring salamander.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Although the West Virginia spring salamander is only proposed for
listing under the Act at this time, please let us know if you are
interested in participating in recovery efforts for this species.
Additionally, we invite you to submit any new information on this
species whenever it becomes available and any information you may have
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation'' and
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action that is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2) of the
Act.
Examples of discretionary actions for the West Virginia spring
salamander that may be subject to conference and consultation
procedures under section 7 are land management or other landscape-
altering activities on Federal lands administered by the U.S.
Department of Agriculture as well as actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation. Federal agencies should coordinate with the
local Service Field Office (see FOR FURTHER INFORMATION CONTACT) with
any specific questions on section 7 consultation and conference
requirements.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit or to cause to be committed any of the following: (1) import
endangered wildlife into, or export from, the United States; (2) take
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct)
endangered wildlife within the United States or on the high seas; (3)
possess, sell, deliver, carry, transport, or ship, by any means
whatsoever, any such wildlife that has been taken illegally; (4)
deliver, receive, carry, transport, or ship in interstate or foreign
commerce in the course of commercial activity; or (5) sell or offer for
sale in interstate or foreign commerce. Certain exceptions to these
prohibitions apply to employees or agents of the Service, the National
Marine Fisheries Service, other Federal land management agencies, and
State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22.
With regard to endangered wildlife, a permit may be issued for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
It is the policy of the Service, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify, to the extent
known at the time a species is listed, specific activities that will
not be considered likely to result in violation of section 9 of the
Act. To the extent possible, activities that will be considered likely
to result in violation will also be identified in as specific a manner
as possible. The intent of this policy is to increase public awareness
of the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in a violation of
section 9 of the Act beyond what is already clear from the descriptions
of prohibitions or already excepted through our regulations at 50 CFR
17.21

[[Page 88025]]

(e.g., any person may take endangered wildlife in defense of his own
life or the lives of others (see 50 CFR 17.21(c)(2))). Also, as
mentioned above, certain activities that are prohibited under section 9
may be permitted under section 10 of the Act. Questions regarding
whether specific activities would or would not constitute a violation
of section 9 of the Act should be directed to the West Virginia
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas

[[Page 88026]]

may still result in jeopardy findings in some cases. These protections
and conservation tools will continue to contribute to recovery of the
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of those planning
efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
As described in the Species Needs section in the Proposed Listing
Determination, above, and the SSA report (Service 2023, pp. 38-41), the
resource and demographic needs for breeding, feeding, sheltering, and
dispersal of the West Virginia spring salamander include:
Appropriate cave habitat;
Sufficient allochthonous materials (organic material
originating outside the cave) to provide a prey base;
Adequate freshwater availability (water quantity) and
sufficient water quality

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of the West Virginia spring salamander from studies of
the species' habitat, ecology, and life history, as described above.
Additional information can be found in the SSA report (Service 2023,
entire; available on https://www.regulations.gov under Docket No. FWS-
R5-ES-2023-0179). We have determined that the following physical or
biological features in the General Davis Cave in Greenbrier County,
West Virginia, are essential to the conservation of the West Virginia
spring salamander:
(1) Cave habitat, including the cave stream and banks, interstitial
spaces, rocks and other objects suitable for use as cover and nest
sites, and drip and rimstone pools away from the main cave stream (to
provide protected nest site habitats);
(2) Sufficient amounts and regular replenishment of allochthonous
(organic material from outside the cave) inputs to support the
invertebrate prey base in the cave; and
(3) Water conditions in the cave stream that are cool; are well-
oxygenated with a neutral pH; have no evidence of excessive sediments,
nutrients, pesticides, or herbicides; and have a cave stream flow and
pattern consistent with current seasonal flows.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the West
Virginia spring salamander may require special management
considerations or protection to reduce threats posed by climate change
(increased frequency of major flood events) and human activities (cave
access for cave exploration, research activities, or recreational
activities).
Management activities that could ameliorate these threats include,
but are not limited to, minimizing human access to the cave; following
applicable management plans and/or laws for cave visitation and
recreational use; and conducting restoration and debris cleanup around
or near the General Davis Cave after major flood events. These
activities should be conducted in a way that minimizes disturbance to
West Virginia spring salamanders and their habitat.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because the West Virginia spring salamander is endemic to one
cave. We determined that the occupied area, General Davis Cave, is
sufficient for the conservation of the West Virginia spring salamander
and, therefore, we are not proposing to designate any unoccupied areas
as critical habitat for the species.
In summary, for areas within the geographical area occupied by the
species at the time of listing, we delineated the critical habitat
unit's boundaries using the following criteria:
(1) Geographic extent--To maintain viability of the West Virginia
spring

[[Page 88027]]

salamander population, the critical habitat unit should encompass the
entire range of the species which is limited to the subterranean area
of the General Davis cave.
Sources of data used for the delineation of critical habitat units
included:
(1) U.S. Geological Survey digital ortho-photo quarter-quadrangles
base layer map using Universal Transverse Mercator (UTM) Zone 17N
coordinates, was used to delineate the critical habitat unit.
(2) Environmental Systems Research Institute's (ESRI's)
Aeronautical Reconnaissance Coverage Geographical Information System
(ArcGIS) online basemap aerial imagery was used to cross-check the base
layer map.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the West Virginia spring
salamander. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support the life-history processes of
the species.
We propose to designate one critical habitat unit based on the
presence of the physical or biological features essential to the West
Virginia spring salamander's life-history processes. The proposed unit
contains all of the identified essential physical or biological
features and supports multiple life-history processes.
The proposed critical habitat designation is defined by the map, as
modified by any accompanying regulatory text, presented at the end of
this document under Proposed Regulation Promulgation. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which the map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R5-ES-
2023-0179 and on our internet site at https://www.fws.gov/office/west-virginia-ecological-services.

Proposed Critical Habitat Designation

We are proposing one unit as critical habitat for the West Virginia
spring salamander. The critical habitat area we describe below
constitutes our current best assessment of the area that meets the
definition of critical habitat for West Virginia spring salamander. The
area we propose as critical habitat is the General Davis Cave in
Greenbrier County, West Virginia. We present a brief description of the
unit, and reasons why it meets the definition of critical habitat for
West Virginia spring salamander, below.

General Davis Cave Unit

The General Davis Cave consists of approximately 3.5 km (2.2 mi) of
subterranean area in Greenbrier County, West Virginia. The General
Davis Cave is considered occupied by the West Virginia spring
salamander and represents the entire known range of the species. Based
on our review, we concluded that the proposed unit is representative of
the species' historical range, and it constitutes our best assessment
of the area that meets the definition of critical habitat for the West
Virginia spring salamander. The proposed unit is considered occupied
year-round. The proposed unit contains the physical or biological
features in the appropriate quantity and spatial arrangement essential
to the conservation of the West Virginia spring salamander and to
support multiple life-history processes for the species. Therefore, the
conservation function of the unit is to provide for all life stages of
the species.
The land above the proposed subterranean unit is entirely privately
owned. Approximately 450 ac (182 ha) directly over General Davis Cave
has been privately owned by one family for more than 200 years. Over
this time, approximately 100 ac (40 ha) of the property has been used
mainly as pasture for cattle grazing, with the rest being maintained as
forest that has been subjected to occasional harvests (Powell 2021,
pers. comm.). West Virginia DNR has developed an individual cave
management plan for General Davis Cave, which provides broad guidelines
for the conservation of the cave, and includes protection of
groundwater and surface water resources, the pursuit of general cave
conservation actions, and restrictions on visitation to the cave (West
Virginia DNR 2020, p. 81). The physical and biological features in this
unit may require special management considerations or protection such
as minimizing human access to the cave; following applicable management
plans and/or laws for cave visitation and recreational use; and
conducting restoration and debris cleanup around or near the General
Davis Cave after major flood events. These activities should be
conducted in a way that minimizes disturbance to West Virginia spring
salamanders and their habitat.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable

[[Page 88028]]

and prudent alternatives'' (at 50 CFR 402.02) as alternative actions
identified during formal consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation if any of the following four
conditions occur: (1) the amount or extent of taking specified in the
incidental take statement is exceeded; (2) new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered; (3) the
identified action is subsequently modified in a manner that causes an
effect to the listed species or critical habitat that was not
considered in the biological opinion or written concurrence; or (4) a
new species is listed or critical habitat designated that may be
affected by the identified action. The reinitiation requirement applies
only to actions that remain subject to some discretionary Federal
involvement or control. As provided in 50 CFR 402.16, the requirement
to reinitiate consultations for new species listings or critical
habitat designation does not apply to certain agency actions (e.g.,
land management plans issued by the Bureau of Land Management in
certain circumstances).

Destruction or Adverse Modification of Critical Habitat

The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support the physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to, agricultural practices,
forestry practices, and/or development/urbanization activities that
alter the quality or quantity of water within the General Davis Cave
stream. These activities, particularly in the absence of proper
application of best management practices, could eliminate or reduce the
quality or quantity of the General Davis Cave stream habitat by
increasing stream sedimentation, introducing pesticides and herbicides,
or changing the water flow pattern of the cave stream.

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing

[[Page 88029]]

regulatory and socio-economic burden imposed on landowners, managers,
or other resource users potentially affected by the designation of
critical habitat (e.g., under the Federal listing as well as other
Federal, State, and local regulations). Therefore, the baseline
represents the costs of all efforts attributable to the listing of the
species under the Act (i.e., conservation of the species and its
habitat incurred regardless of whether critical habitat is designated).
The ``with critical habitat'' scenario describes the incremental
impacts associated specifically with the designation of critical
habitat for the species. The incremental conservation efforts and
associated impacts would not be expected without the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat,
above and beyond the baseline costs. These are the costs we use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct a discretionary section 4(b)(2) exclusion analysis.
Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866
and E.O. 13563 and directs Federal agencies to assess the costs and
benefits of available regulatory alternatives in quantitative (to the
extent feasible) and qualitative terms. Consistent with the E.O.
regulatory analysis requirements, our effects analysis under the Act
may take into consideration impacts to both directly and indirectly
affected entities, where practicable and reasonable. If sufficient data
are available, we assess to the extent practicable the probable impacts
to both directly and indirectly affected entities. Section 3(f) of E.O.
12866 identifies four criteria when a regulation is considered a
``significant regulatory action'' and requires additional analysis,
review, and approval if met. The criterion relevant here is whether the
designation of critical habitat may have an economic effect of $200
million or more in any given year (section 3(f)(1), as amended by E.O.
14094). Therefore, our consideration of economic impacts uses a
screening analysis to assess whether a designation of critical habitat
for the West Virginia spring salamander is likely to exceed the
economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the West Virginia spring salamander (IEc 2023,
entire). We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographical areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis
on evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
presence of the listed species in occupied areas of critical habitat
means that any destruction or adverse modification of those areas is
also likely to jeopardize the continued existence of the species.
Therefore, designating occupied areas as critical habitat typically
causes little if any incremental impacts above and beyond the impacts
of listing the species. As a result, we generally focus the screening
analysis on areas of unoccupied critical habitat (unoccupied units or
unoccupied areas within occupied units). Overall, the screening
analysis assesses whether designation of critical habitat is likely to
result in any additional management or conservation efforts that may
incur incremental economic impacts. This screening analysis combined
with the information contained in our IEM constitute what we consider
to be our draft economic analysis (DEA) of the proposed critical
habitat designation for the West Virginia spring salamander; our DEA is
summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the West Virginia spring
salamander, first we identified, in the IEM dated July 25, 2023,
probable incremental economic impacts associated with agricultural
activities. Additionally, we considered whether the activities have any
Federal (e.g., U.S. Department of Agriculture) involvement. Critical
habitat designation generally will not affect activities that do not
have any Federal involvement; under the Act, designation of critical
habitat only affects activities conducted, funded, permitted, or
authorized by Federal agencies. If we list the species, in areas where
the West Virginia spring salamander is present, Federal agencies would
be required to consult with the Service under section 7 of the Act on
activities they authorize, fund, or carry out that may affect the
species. If, when we list the species, we also finalize this proposed
critical habitat designation, Federal agencies would be required to
consider the effects of their actions on the designated habitat, and if
the Federal action may affect critical habitat, our consultations would
include an evaluation of measures to avoid the destruction or adverse
modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the West
Virginia spring salamander's critical habitat. Because the designation
of critical habitat for the West Virginia spring salamander is being
proposed concurrently with the listing, it has been our experience that
it is more difficult to discern which conservation efforts are
attributable to the species being listed and those which will result
solely from the designation of critical habitat. However, the following
specific circumstances in this case help to inform our evaluation: (1)
The essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the species itself. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the West Virginia
spring salamander is currently occupied by the

[[Page 88030]]

species and totals approximately 3.5 km (2.2 miles) of subterranean
cave habitat, with the surface area above the cave entirely privately
owned lands. It is unlikely that there will be economic costs related
to implementing this proposed critical habitat designation through
section 7 of the Act given the absence of activities that may trigger
section 7 consultation. This finding is based on a lack of historical
consultations for other species in or near the proposed critical
habitat unit, and no future project activities reported by Federal
agencies. Therefore, the rule is unlikely to meet the threshold for an
economically significant rule as defined in E.O. 14094.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under the authority of section
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and
the 2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the West
Virginia spring salamander are not owned or managed by the DoD or DHS,
and, therefore, we anticipate no impact on national security or
homeland security.

Consideration of Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements, or candidate
conservation agreements with assurances--or whether there are non-
permitted conservation agreements and partnerships that may be impaired
by designation of, or exclusion from, critical habitat. In addition, we
look at whether Tribal conservation plans or partnerships, Tribal
resources, or government-to-government relationships of the United
States with Tribal entities may be affected by the designation. We also
consider any State, local, social, or other impacts that might occur
because of the designation.

Summary of Exclusions Considered Under Section 4(b)(2) of the Act

In preparing this proposal, we have determined that no HCPs or
other management plans for the West Virginia spring salamander
currently exist, and the proposed designation does not include any
Tribal lands or trust resources or any lands for which designation
would have any economic or national security impacts. Therefore, we
anticipate no impact on Tribal lands, partnerships, or HCPs from this
proposed critical habitat designation and thus, as described above, we
are not considering excluding any particular areas on the basis of the
presence of conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are economic,
national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
If we receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
explain our decision in the final rule for this action. (Please see
ADDRESSES, above, for instructions on how to submit comments.)

Required Determinations

Clarity of the Rule

We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;

[[Page 88031]]

(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)

Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866
and E.O. 13563 and states that regulatory analysis should facilitate
agency efforts to develop regulations that serve the public interest,
advance statutory objectives, and are consistent with E.O. 12866, E.O.
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this proposed rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects to the extent
permitted by law when undertaking actions identified as significant
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a
``significant energy action'' as an action that (i) is a significant
regulatory action under E.O. 12866 (or any successor order, including
most recently E.O. 14094 (88 FR 21879; Apr. 11, 2023)); and (ii) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This proposed rule is not a significant
regulatory action under E.O. 12866 or E.O. 14094. Therefore, this
action is not a significant energy action, and there is no requirement
to prepare a statement of energy effects for this action.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that

[[Page 88032]]

``would impose an enforceable duty upon State, local, or Tribal
governments'' with two exceptions. It excludes ``a condition of Federal
assistance.'' It also excludes ``a duty arising from participation in a
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and Tribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; Aid to Families with Dependent Children work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or more (adjusted annually for inflation) in
any year, that is, it is not a ``significant regulatory action'' under
the Unfunded Mandates Reform Act. Therefore, a small government agency
plan is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the West Virginia spring salamander in a takings
implications assessment. The Act does not authorize the Service to
regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership or establish any
closures or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed for the proposed designation
of critical habitat for West Virginia spring salamander, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal Government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that this proposed rule would not unduly
burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the physical or biological features
essential to the conservation of the species. The proposed area of
critical habitat is presented on a map, and the proposed rule provides
several options for the interested public to obtain more detailed
location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain information collection requirements, and
a submission to OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor,
and you are not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

Regulations adopted pursuant to section 4(a) of the Act are exempt
from

[[Page 88033]]

the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.)
and do not require an environmental analysis under NEPA. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244). This includes listing,
delisting, and reclassification rules, as well as critical habitat
designations. In a line of cases starting with Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretaries' Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have determined that no Tribal lands fall within the
boundaries of the proposed critical habitat designation for the West
Virginia spring salamander, so no Tribal lands would be affected by the
proposed designation.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the West Virginia Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the West
Virginia Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Salamander, West Virginia
spring'' in alphabetical order under AMPHIBIANS to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Amphibians
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Salamander, West Virginia spring Gyrinophilus Wherever found.... E [Federal Register
subterraneus. citation when
published as a final
rule]; 50 CFR
17.95(d).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (d) by adding an entry for ``West
Virginia Spring Salamander (Gyrinophilus subterraneus)'' after the
entry for ``San Marcos Salamander (Eurycea nana),'' to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(d) Amphibians.
* * * * *
West Virginia Spring Salamander (Gyrinophilus subterraneus)
(1) The critical habitat unit is depicted for Greenbrier County,
West Virginia, on the map in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the West Virginia spring salamander
consist of the following components in the General Davis Cave in
Greenbrier County, West Virginia:
(i) Cave habitat, including the cave stream and banks, interstitial
spaces, rocks and other objects suitable for use as cover and nest
sites, and drip and rimstone pools away from the main cave stream (to
provide protected nest site habitats);
(ii) Sufficient amounts and regular replenishment of allochthonous
(organic material from outside the cave) inputs to support the
invertebrate prey base in the cave; and
(iii) Water conditions in the cave stream that are cool; are well-
oxygenated with a neutral pH; have no evidence of excessive sediments,
nutrients, pesticides, or herbicides; and have a cave stream flow and
pattern consistent with current seasonal flows.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created on a base of U.S.
Geological Survey digital ortho-photo quarter-quadrangles, and the
critical habitat unit was then mapped using Universal Transverse
Mercator (UTM) Zone 17N coordinates. The map in this entry, as modified
by any accompanying regulatory text, establishes the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which the map is based are available to the public at the Service's
internet site at https://www.fws.gov/office/west-virginia-ecological-services, at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-
0179, and at the field office responsible for this

[[Page 88034]]

designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) General Davis Cave Unit; Greenbrier County, West Virginia.
(i) The General Davis Cave Unit consists of 3.5 kilometers (2.2
miles) in Greenbrier County, West Virginia, and is composed entirely of
private lands.
(ii) Unit map follows:
Figure 1 to West Virginia Spring Salamander (Gyrinophilus subterraneus)
paragraph (5)(ii)
[GRAPHIC] [TIFF OMITTED] TP20DE23.002

[[Page 88035]]

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-27741 Filed 12-19-23; 8:45 am]
BILLING CODE 4333-15-P