Endangered and Threatened Wildlife and Plants; Endangered Species Status for West Virginia Spring Salamander and Designation of Critical Habitat, 88012-88035 [2023-27741]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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]


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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.

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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