88012 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The EPA performed an environmental 

justice analysis, as is described in 

section VI of this proposed rule, titled 

‘‘Environmental Justice 

Considerations.’’ The analysis was done 

for the purpose of providing additional 

context and information about this 

rulemaking to the public, not as a basis 

of the action. Due to the nature of the 

action being taken here, this action is 

expected to have a neutral to positive 

impact on the air quality of the affected 

area. In addition, there is no information 

in the record upon which this decision 

is based inconsistent with the stated 

goal of E.O. 12898 of achieving 

environmental justice for people of 

color, low-income populations, and 

Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ammonia, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: December 12, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–27686 Filed 12–19–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R5–ES–2023–0179; 

FF09E21000 FXES1111090FEDR 245] 

RIN 1018–BH06 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for West Virginia Spring 

Salamander and Designation of Critical 

Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the West Virginia spring salamander 

(Gyrinophilus subterraneus), an 

amphibian species from Greenbrier 

County, West Virginia, as an endangered 

species and to designate critical habitat 

under the Endangered Species Act of 

1973, as amended (Act). This 

determination also serves as our 12- 

month finding on a petition to list the 

West Virginia spring salamander. After 

a review of the best available scientific 

and commercial information, we find 

that listing the species is warranted. We 

also propose to designate critical habitat 

for the West Virginia spring salamander 

under the Act. In total, approximately 

3.5 kilometers (2.2 miles) in Greenbrier 

County, West Virginia, fall within the 

boundaries of the proposed critical 

habitat designation. We announce the 

availability of a draft economic analysis 

of the proposed designation of critical 

habitat for the West Virginia spring 

salamander. If we finalize this rule as 

proposed, it would extend the Act’s 

protections to the species and its 

designated critical habitat. 

DATES: We will accept comments 

received or postmarked on or before 

February 20, 2024. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

eastern time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by February 5, 2024. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https:// 

www.regulations.gov. In the Search box, 

enter FWS–R5–ES–2023–0179, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R5–ES–2023–0179, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

Supporting materials, such as the 

species status assessment report, are 

available on the Service’s website at 

https://www.fws.gov/office/westvirginia-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-virginiaecological-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-ofcontact 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 


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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 


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88014 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

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 semiaquatic 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). 


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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 


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88016 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

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 speciesspecific 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/westvirginia-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 


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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 welloxygenated 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 streampassage 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 


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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 caveobligate 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; Aljancˇicˇ 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 streamdwelling 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 


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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 predisturbance 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 


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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 

Date Adult Larvae Total 

Length of cave 

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 

1All 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. 


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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). 

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 


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88022 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

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 

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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, selfsustaining, 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/endangeredspecies), or from our West Virginia 


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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/financialassistance. 

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 


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(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 


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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 lifehistory 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 earlysuccessional 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 lifehistory 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 welloxygenated 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 


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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-virginiaecological-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 lifehistory 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 


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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 


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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 


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88030 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

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 homelandsecurity 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 nonpermitted 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; 


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(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 


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‘‘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 


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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 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 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. In § 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: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

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

*******

Amphibians 

*******

Salamander, West Virginia spring.Gyrinophilus 

subterraneus.

Wherever found ............ E [Federal Register citation when published as a 

final rule]; 50 CFR 17.95(d).CH

* * * * * * * 

■ 3. In § 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: 

§ 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 welloxygenated 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-virginiaecological-services, at https:// 

www.regulations.gov at Docket No. 

FWS–R5–ES–2023–0179, and at the 

field office responsible for this 


ddrumheller on DSK120RN23PROD with PROPOSALS1
88034 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

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) 


ddrumheller on DSK120RN23PROD with PROPOSALS1EP20DE23.002</GPH>

Critical Habitat for West Virginia Spring Salamander (Gyrinophilus subtemmeus) 

General Davis Cave Unit 

Greenbrier County, West Virginia 

'N 

A 

--- Roadways 

--- Rivers and Streams 

ll 75 1S!l Jllll 451! Em 

ll 11!1 22ll 4411 li6ll !!l!f! ---
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FF09E21000 FXES1111090FEDR245] 

Endangered and Threatened Wildlife 

and Plants; Ten Species Not Warranted 

for Listing as Endangered or 

Threatened Species 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notification of findings. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce 

findings that 10 species are not 

warranted for listing as endangered or 

threatened species under the 

Endangered Species Act of 1973, as 

amended (Act). After a thorough review 

of the best available scientific and 

commercial information, we find that it 

is not warranted at this time to list 

Hupp’s Hill cave beetle 

(Pseudanophthalmus parvicollis), 

Hubbard’s cave beetle 

(Pseudanophthalmus hubbardi), 

overlooked cave beetle 

(Pseudanophthalmus praetermissus), 

Shenandoah cave beetle 

(Pseudanophthalmus limicola), Little 

Kennedy cave beetle 

(Pseudanophthalmus cordicollis), 

Holsinger’s cave beetle 

(Pseudanophthalmus holsingeri), 

Hubricht’s cave beetle 

(Pseudanophthalmus hubrichti), silken 

cave beetle (Pseudanophthalmus 

sericus), Pinalen ̃ o talussnail (Sonorella 

grahamensis), and San Xavier talussnail 

(Sonorella eremita). However, we ask 

the public to submit to us at any time 

any new information relevant to the 

status of any of the species mentioned 

above or their habitats. 

DATES: The findings in this document 

were made on December 20, 2023. 

ADDRESSES: Detailed descriptions of the 

bases for these findings are available on 

the internet at https://

www.regulations.gov under the 

following docket numbers: 

Species Docket No. 

Holsinger’s cave beetle ............................................................................ FWS–R5–ES–2023–0233 

Hubbard’s cave beetle .............................................................................. FWS–R5–ES–2023–0235 

Hubricht’s cave beetle .............................................................................. FWS–R5–ES–2023–0236 

Hupp’s Hill cave beetle ............................................................................. FWS–R5–ES–2023–0237 

Little Kennedy cave beetle ....................................................................... FWS–R5–ES–2023–0238 

Overlooked cave beetle ............................................................................ FWS–R5–ES–2023–0239 

Pinalen ̃o talussnail .................................................................................... FWS–R2–ES–2023–0240 

San Xavier talussnail ................................................................................ FWS–R2–ES–2023–0241 

Shenandoah cave beetle .......................................................................... FWS–R5–ES–2023–0242 

Silken cave beetle .................................................................................... FWS–R5–ES–2023–0243 

Those descriptions are also available 

by contacting the appropriate person as 

specified under FOR FURTHER

INFORMATION CONTACT. Please submit any 

new information, materials, comments, 

or questions concerning this finding to 

the appropriate person, as specified 

under FOR FURTHER INFORMATION

CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Species Contact Information 

Hupp’s Hill cave beetle, Hubbard’s cave beetle, overlooked cave beetle, Shenandoah cave beetle, Little Kennedy cave beetle, Holsinger’s 

cave beetle, Hubricht’s cave beetle, and silken cave beetle.

Cindy Schulz, Field Office Supervisor, Virginia Ecological Services 

Field Office, 804–654–1842, cindy_schulz@fws.gov. 

Pinalen ̃o talussnail and San Xavier talussnail ......................................... Heather Whitlaw, Arizona Ecological Services Field Office Supervisor, 

806–773–5932, heather_whitlaw@fws.gov. 

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-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Background 

Under section 4(b)(3)(B) of the Act (16 

U.S.C. 1531 et seq.), we are required to 

make a finding on whether or not a 

petitioned action is warranted within 12 

months after receiving any petition that 

we have determined contains 

substantial scientific or commercial 

information indicating that the 

petitioned action may be warranted 

(‘‘12-month finding’’). We must make a 

finding that the petitioned action is: (1) 

Not warranted; (2) warranted; or (3) 

warranted, but precluded by other 

listing activity. We must publish a 

notification of these 12-month findings 

in the Federal Register. 

Summary of Information Pertaining to 

the Five Factors 

Section 4 of the Act (16 U.S.C. 1533) 

and the implementing regulations at 

part 424 of title 50 of the Code of 

Federal Regulations (50 CFR part 424) 

set forth procedures for adding species 

to, removing species from, or 

reclassifying species on the Lists of 

Endangered and Threatened Wildlife 

and Plants (Lists). The Act defines 

‘‘species’’ as including any subspecies 

of fish or wildlife or plants, and any 

distinct population segment of any 

species of vertebrate fish or wildlife 

which interbreeds when mature. The 

Act defines ‘‘endangered species’’ as 

any species that is in danger of 

extinction throughout all or a significant 

portion of its range (16 U.S.C. 1532(6)), 

and ‘‘threatened species’’ as any species 

that is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range (16 U.S.C. 1532(20)). Under 

section 4(a)(1) of the Act, a species may 

be determined to be an endangered 


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