2024-31756. Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Clear Lake Hitch

Table 1—Demographic and Habitat Factors Condition Categories for Population and Analysis Unit Resiliency With High Condition as the Best Condition and Zero as the Lowest Condition

Condition category	Demographic factor— reproduction	Demographic factor— recruitment	Habitat element—tributary water quantity	Habitat element—lake water quality
High	Overall total from reproduction analysis is high	Overall total from recruitment analysis is high	Water is retained within the tributaries throughout the spawning season	Lake water is well oxygenated and minimally contaminated.
( print page 4930)
Moderate	Overall total from reproduction analysis is moderate	Overall total from recruitment analysis is moderate	Water is retained within the tributaries throughout a large portion of the spawning season	Lake water is oxygenated most of the time, hypoxic conditions do occur periodically. Some contaminants are present, but not at lethal levels.
Low	Overall total from reproduction analysis is low	Overall total from recruitment analysis is low	Water is retained within the tributaries throughout a small portion of the spawning season	Lake water is not well oxygenated and hypoxic conditions occur frequently. Contaminants are present, sometimes at lethal levels.
0 (Zero)	No reproduction	No recruitment	Water is not retained within the tributaries during any portion of the spawning season	Lake water quality is uninhabitable.

Of the six Clear Lake hitch analysis units, for reproduction, there are currently three analysis units that are in moderate condition (SIGs 1, 2, and 4), and two analysis units that are in low condition (SIGs 3 and 5). The current recruitment condition for SIG 3 is high, moderate for SIGs 2 and 4, and low for SIGs 1 and 5. The current condition of lake water quality is at a low condition for all five analysis units, and the current condition for tributary water quantity is low for SIGs 1, 2, and 3, and moderate for SIGs 4 and 5. Currently, the Clear Lake population has three analysis units at a moderate condition (SIGs 2, 3, and 4), and two units at a low condition (SIGs 1 and 5), for an overall Clear Lake population resiliency of moderate (Service 2024, p. 83). The Thurston Lake population is currently in high condition and, therefore, has high resiliency. See table 2, below.

Table 2—Summary Table of Current and Future Resiliency for Each Population (P) and Analysis Unit (AU)

Population	Analysis unit	Current condition	Future condition scenario 1	Future condition scenario 2
Clear Lake		Moderate	Moderate/Low	Low.
	Cole Creek (SIG 1)	Low	Low	Low.
	Kelsey Creek (SIG 2)	Moderate	Moderate/Low	Low.
	Clear Lake, Adobe Creek (SIG 3)	Moderate	Moderate/Low	Low.
	Rodman Slough (SIG 4)	Moderate	Moderate	Moderate/Low.
	Middle Creek, Clover Creek, Seigler Canyon Creek (SIG 5)	Low	Low	Low.
Thurston Lake	Thurston Lake	High	Moderate	Moderate.

In describing the overall current condition, we not only include resiliency of each population and analysis unit, but also consider the representation and redundancy across the range of the subspecies. Because both populations of the Clear Lake hitch are narrowly distributed and occupy the same ecological niche, the subspecies has likely never had much environmental diversity and likely does not have much genetic diversity due to its endemism to a single watershed, suggesting inherently limited representation. Given the subspecies' narrow range, both populations of the subspecies (Clear Lake and Thurston Lake) could be affected simultaneously by large-scale events. However, the Clear Lake hitch uses different types of spawning habitats (tributary, lake, or interface between the two) across its narrow range, which may provide some current capacity to withstand a catastrophic drought event.

Because of the historical connectivity within a single, large watershed, Clear Lake provided better habitat conditions for the subspecies. Currently, Thurston Lake does not have the level of threats acting on the subspecies that are affecting the hitch in Clear Lake. Surveys in 2023 of the Clear Lake population show there is an influx of age classes, thus indicating there is reproduction occurring. This diverse demographic make- up of the subspecies' population in Clear Lake indicates that there is redundancy across subspecies' range and bolsters the subspecies' resiliency. Currently, the Clear Lake hitch has two extant populations: the Clear Lake population, which has a moderate resiliency; and the Thurston Lake population, which has a high resiliency. Both of these populations are able to withstand stochastic environmental variation. Representation and redundancy are similar to historical conditions, with both populations narrowly distributed and occupying the same ecological niche.

The current resiliency analysis uses the best available information; however, we recognize there are some uncertainties around the subspecies' life ( print page 4931) history, including recruitment, and the factors that influence its viability. Some of the uncertainties include the lack of robust, statistically valid population or abundance estimates for the historical population of the Clear Lake hitch. Further, current population estimates are still in initial stages, as local Tribes, CDFW, and USGS are accruing more data to provide a more accurate rangewide population estimate. Because this information is not available, there is no baseline to compare for our current condition analysis; therefore, we had to use available demographic and habitat data to inform our analysis, which could result in an overestimation or underestimation of population resiliency.

There is some uncertainty in how successful recruitment is in the lower Clear Lake watershed, including within Clear Lake itself. Our analysis in the SSA report assumes reproduction is successful when adults are documented in the tributaries over the spawning season and that some lake spawning is successful (Service 2024, p. 70). It is possible these assumptions are overestimating how successful reproduction is, resulting in an overestimation of population resiliency.

Future Condition

In order to determine the Clear Lake hitch's viability in the future, we assessed the condition of the subspecies' resiliency, redundancy, and representation within a timeframe that we can make reliable predictions about the threats and the subspecies' response to the threats. The future conditions projections were timeframe we applied for the future conditions' analyses found that the most reliable timeframe extends out to the next 40 to 50 years. We considered two plausible future scenarios that represent the extremes of a range of future changes in environmental conditions and success of implemented conservation efforts. Using these two scenarios allows us to consider the full range of future possibilities for forecasting future viability of the subspecies and incorporates any uncertainty regarding the impact of future environmental conditions and the success of implemented conservation efforts.

The future scenarios project the influences on viability into the future and consider how those influences would potentially impact the Clear Lake hitch's viability. As under Current Condition, we assessed the subspecies' resiliency, redundancy, and representation under each future scenario. For resiliency, we projected the impact to the subspecies' reproduction, recruitment, water quantity (tributary), and water quality (lake) at the population level and the analysis unit level.

The following six factors affecting the Clear Lake hitch were included in both of the two plausible future scenarios:

1. The loss of spawning habitat due to past watershed modifications that have blocked access to or altered the flow regime of tributaries. The lack of consistent tributary flow will continue due to the effects of past instream gravel mining, deforestation, and grazing practices; existing flood control project infrastructure; fire activity; and water utilization for agricultural and urban uses. Because the rate of urban development has slowed in the last decade, we do not anticipate a significant amount of urban growth into the future. The timeframe for the current Lake County General Plan is 20 years and only projects growth out to 2028; however, we still do not expect growth to increase much after 2028. Although the amount of agricultural development increased substantially leading up to the 21st century, over the last 10 years or so the acreage of fruit, nut, field, seed, and vegetable crops in Lake County only slightly increased.

Therefore, we do not anticipate a substantial increase in the amount of agricultural production into the future (Service 2024, pp. 29, 34). Furthermore, future climate change is projected to further exacerbate the degradation and inaccessibility of tributaries by increasing the incidence of fire activity, flood events, and aridity. Various passage barriers, both physical barriers and lack of flow, will continue to persist in the watershed. And there are no there are no groundwater sustainability plans for low priority basins.

2. The loss of wetland/tule habitat. The current remaining wetland/tule habitat surrounding the lake will persist into the future, primarily due to the implementation of Lake County's Clear Lake Shoreline Ordinance.

3. Continued reductions in lake water quality due to the past loss of wetland/tule habitat surrounding the lake, contamination from past mercury mining along the lake's shore and from pesticide use for agricultural and urban uses, the input of sediment and nutrients from degraded tributaries, and nutrient inputs from surrounding urban and agricultural development. As mentioned above, we do not project agricultural production or urban development to increase substantially into the future. Elevated nutrient and sediment inputs continue to contribute to periodic cyanobacteria blooms, further reducing water quality. Periodic fish kills continue to occur.

4. Nonnative fish species from past introductions are still established within the lakes.

5. Drought incidence and intensity increase due to climate change, reducing tributary flow during the spawning season in some years.

6. The continued implementation of current regulatory mechanisms ( e.g., CESA, Lake County's Clear Lake Shoreline Ordinance) and management actions ( e.g., Lake County's Aggregate Resources Management Plan, other miscellaneous restoration actions occurring throughout the watershed).

Scenario 1 assesses the viability of the subspecies if the trend and magnitude of threats were to continue at the current trajectory into the future with implemented management efforts being fully successful. Scenario 2 assesses the subspecies' future viability with an increase in the trend and magnitude of threats with implemented management efforts having mixed success. Additional details regarding the scenarios are described in the SSA report (Service 2024, pp. 89-91).

Under Scenario 1, many of the factors that are having an influence on each of the Clear Lake hitch populations continue at current rates, or slightly increase. The effects of climate change, specifically increased aridity, are already occurring throughout the watershed, although the effects of increased aridity are not apparent every year. Future drought conditions are projected to increase in both the number of years drought conditions persist and the intensity of drought. Due to the increased incidence of aridity, and because future climate projections show the timing of precipitation will change, in some years, the number of spawning tributaries available to the Clear Lake hitch over the spawning season will decrease. A slight increase in fire and flooding incidence will increase the amount of erosion occurring in the tributaries, further decreasing lake water quality. As conditions worsen in the tributaries, the hitch will have to increasingly rely on spawning in the lake or in the mouths of streams. Because the Clear Lake hitch is a State- listed species, direct take will continue to be prohibited without a permit. Due to Lake County's Clear Lake Shoreline Ordinance, the amount of existing wetland/tule habitats surrounding the lake will continue to persist. Under Scenario 1, the SGMA has been implemented, and general restoration projects, such as contaminant remediation, tributary function, and barrier removal, continue to be ( print page 4932) implemented at a small scale throughout the watershed.

Under Scenario 1, both populations decline in resiliency; the Thurston Lake population is in moderate condition, and the Clear Lake population is in moderate/low condition. Each Clear Lake analysis unit is either unchanged from current condition, or declines. The resiliency for SIGs 1 and 5 remains in low condition. SIG 4 remains in moderate condition, and SIGs 2 and 3 decline from moderate to moderate/low condition. For representation, because both populations of Clear Lake hitch are narrowly distributed and occupy the same ecological niche, environmental and genetic diversity are not expected to change dramatically under Scenario 1. Therefore, representation for the Clear Lake hitch under current conditions is maintained under Scenario 1.

For redundancy, given the narrow range, both populations of the subspecies could be affected simultaneously by large-scale events. However, the Clear Lake hitch uses different types of spawning habitats (tributary, lake, or interface between the two) across its narrow range, which may increase the ability of the subspecies to withstand a catastrophic drought event, which is not expected to change dramatically under Scenario 1. Therefore, redundancy for the Clear Lake hitch under current conditions is maintained under Scenario 1.

Under Scenario 2, some of the factors that are having an influence on each of the Clear Lake hitch populations continue at current rates, while others will increase (Service 2024, pp. 92-94). In this scenario, climate change results in more arid conditions throughout the subspecies' range and impacts from increased fire and flooding increase erosion occurring in the tributaries, further decreasing water quality within the lake. As conditions worsen in the tributaries, the Clear Lake hitch will have to increasingly rely on spawning in the lake or in the mouths of streams. In addition, under this scenario, agricultural production slightly increases in areas currently not prioritized by the SGMA, small-scale restoration projects have been implemented but not all are successful, the Middle Creek Project has not been implemented, and few passage barriers have been removed. Under Scenario 2, Lake County's Clear Lake Shoreline Ordinance will continue to limit tule habitat loss, and the CESA will continue to limit the take of Clear Lake hitch individuals.

The overall resiliency of each population will decline under Scenario 2. The projections result in a moderate condition for the Thurston Lake population and low condition for the Clear Lake population. Within Clear Lake, each SIG declines to or maintains a low condition except for Rodman Slough, which has a moderate/low condition.

Under Scenario 2, due to declines in abundance and recruitment predicted under this future scenario, we anticipate representation will be somewhat reduced from current conditions, and, therefore, the subspecies will be less able to adapt to changing environmental conditions. We also anticipate that redundancy will be somewhat reduced from current conditions due to predicted declines in abundance and recruitment, and, therefore, the subspecies will be more susceptible to a catastrophic event.

We also present uncertainties associated with the future conditions analyses for the Clear Lake hitch. As described above under Current Condition, there is uncertainty regarding some of the subspecies' life-history traits, including recruitment, and some of the factors influencing the subspecies' viability that were used in the future condition scenarios. Although there is a current population estimate for the subspecies, this estimate is in its initial stages and additional years of monitoring data are needed to provide a more accurate estimate. Because we do not have an accurate current number to compare to, and therefore cannot project changes in the size of either population, we must qualitatively describe how future influences will impact Clear Lake hitch populations. There is uncertainty in how successful recruitment is in the lower Clear Lake watershed, including within Clear Lake itself. Our analysis assumes reproduction is successful when adults are documented in the tributaries over the spawning season and that some lake spawning is successful. It is possible these assumptions are overestimating how successful reproduction is, resulting in an overestimation of population resiliency.

Lastly, there is uncertainty around the degree of impact from water extraction for agricultural use on the Clear Lake hitch and its habitat. Groundwater pumping can deplete surface water in streams and reduce flow and available water (USGS 2013, entire). Water extractions may be one of the reasons for the reduction in the Clear Lake hitch's population; however, the Clear Lake watershed is complex, and we do not fully understand how surface and ground water interact in most of the watershed because studies have not been completed. We also do not have a full understanding of where water extractions are occurring or how much water is being extracted; however, there are ongoing studies to better understand the magnitude of impacts on the Clear Lake watershed (Santana 2024, pers. comm.). Although we do not fully understand if or how groundwater extraction is having an impact on the Clear Lake hitch, we do know that water extraction in the summer lowers the water level in pool habitat that acts as refugia for native fish in the disconnected streams until they become reconnected by spring rains. It is the loss of this pool habitat that affects the Clear Lake hitch. However, because groundwater extraction is likely affecting water availability for the subspecies, for our analysis, it is a logical assumption that groundwater pumping for agricultural production is likely having a negative impact on the subspecies. We also assumed the highest rates of pumping are occurring where the most agricultural production occurs. Therefore, it is possible we are overestimating the impact from this threat, resulting in an underestimate of current population resiliency.

Additional uncertainty is presented regarding future impacts to the subspecies and its habitat from climate change, the future trajectory of current negative influences to the subspecies ( i.e., agricultural production and urban development), the long-term success of current conservation actions, and the implementation and success of future conservation actions. Our overall future condition analysis assumes climate change will exacerbate the current negative influences ( e.g., drought) acting on the subspecies; both future scenarios capture the full risk of this influence within the 40-to-50-year timeline. For agricultural production and urban development, we assume future trends will be similar to trends over the last decade, which only showed slight increases. It is possible we underestimated the future trajectory of these influences, which would result in an overestimation of future population resiliency. The number of conservation actions being implemented in the watershed has increased over the past few years; however, we are uncertain about their success over the long term and whether the current trend in implementation will continue into the future. Since the two future condition scenarios consider the breadth of future implementation and success of conservation activities for the Clear Lake hitch, the overall future condition analysis captures the full benefits of this influence on the subspecies. ( print page 4933)

Determination of the Clear Lake Hitch'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 the threats to the Clear Lake hitch and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we have determined that the overall viability of the Clear Lake hitch has declined from historical levels due to the past and ongoing threats of habitat loss, degradation, and modifications (Factor A), predation (Factor C), competition (Factor E), and the effects of climate change (Factor E) .

Currently, the subspecies has two extant populations: the Clear Lake population, which has a moderate resiliency, and the Thurston Lake population, which has a high resiliency. Both populations are able to withstand stochastic environmental variation. Representation and redundancy are similar to historical conditions, with both populations narrowly distributed and occupying the same ecological niche. Because of the historical connectivity within a single, large watershed, Clear Lake provided better habitat conditions for the subspecies. Currently, Thurston Lake does not have the level of threats acting on the subspecies that are affecting the hitch in Clear Lake. Surveys in 2023 of the Clear Lake population show there is an influx of age classes, thus indicating there is reproduction occurring. The diverse demographic makeup of the subspecies' population in Clear Lake provides support that there is redundancy across the Clear Lake hitch's range and bolsters the subspecies' resiliency. Therefore, the Clear Lake hitch is not currently at risk of extinction throughout its range and does not meet the Act's definition of an endangered species.

However, under both future scenarios we see declines in population resiliency in the foreseeable future as a result of factors that will continue to affect the subspecies. Our analysis of the past, current, and future factors influencing viability revealed there are six primary factors affecting the viability of the Clear Lake hitch. These risks to viability are primarily related to habitat changes but also includes others with more direct effect to the subspecies:

1. The loss of spawning habitat due to past watershed modifications that have blocked access to or altered the flow regime of tributary streams.

2. The loss of wetland/tule habitat. The current remaining wetland/tule habitat surrounding the lake will persist into the future, primarily due to the implementation of Lake County's Clear Lake Shoreline Ordinance.

3. Continued reductions in lake water quality due to the past loss of wetland/tule habitat surrounding the lake, contamination from past mercury mining along the lake's shore and from pesticide use for agricultural and urban uses, the input of sediment and nutrients from degraded tributaries, and nutrient inputs from surrounding urban and agricultural development. As mentioned above, we do not project agricultural production or urban development to increase substantially into the future. Elevated nutrient and sediment inputs continue to contribute to periodic cyanobacteria blooms, further reducing water quality. Periodic fish kills continue to occur.

4. Nonnative fish species from past introductions are still established within Clear Lake.

5. Drought incidence and intensity increase due to climate change, reducing tributary flow during the spawning season in some years (Hayhoe et al. 2004, pp. 12424-12425, Pierce et al. 2013, pp. 848-850).

6. The continued implementation of current regulatory mechanisms ( e.g., CESA, Lake County's Clear Lake Shoreline Ordinance), management actions ( e.g., Lake County's Aggregate Resources Management Plan, and other miscellaneous restoration actions occurring throughout the watershed) that limits the amount of gravel extract.

Under both future scenarios, Thurston Lake declines to a moderate resiliency and Clear Lake declines to a moderate/low or low resiliency, suggesting the subspecies will be less likely to withstand stochastic environmental variation in the future. Under future Scenario 1, redundancy and representation are mostly maintained but begin to be impacted by the declines in population resiliency. Under future Scenario 2, both redundancy and representation are reduced due to the limited availability of some spawning habitats and the subspecies being less able to adapt to changing environmental conditions. Because of this future reduction in resiliency, redundancy, and representation, the subspecies is likely to become endangered within the foreseeable future throughout its range and meets the Act's definition of a threatened species. Thus, after assessing the best scientific and commercial data available, we conclude that the Clear Lake hitch is not in danger of extinction but is likely to become in danger of extinction within the foreseeable future 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. The court in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson), 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” (hereafter “Final Policy”; 79 FR 37578, July 1, 2014) that provided if the Services determine that a species is threatened throughout all of its range, the Services will not analyze whether the species is endangered in a significant portion of its range.

Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Everson, we now consider whether the Clear Lake hitch is in danger of extinction in a significant portion of its ( print page 4934) range. In undertaking this analysis for the Clear Like hitch, we chose to address the significance question first. We identified Clear Lake and its tributaries as a significant portion of the subspecies' range; this portion is biologically meaningful to the subspecies due to its large geographical size ( i.e., it encompasses the greatest proportion of the subspecies' entire range and near 95 percent of the available lake habitat). Additionally, Clear Lake and its tributaries support the majority of the subspecies' entire population. We include the tributaries in this portion because the Clear Lake hitch uses them for spawning, and they are important for the reproduction aspect of the subspecies' lifecycle.

After determining the portion's significance, we evaluated the Clear Lake hitch's status within that portion. Since we found the subspecies meets the Act's definition of threatened across its entire range, we considered the status of the portion to determine if the subspecies within Clear Lake and its tributaries meets the Act's definition of an endangered species. The current resiliency of this population is scored as moderate (see table 2, above). Seasonal surveys conducted in Clear Lake from 2017 to 2023 indicate fluctuations in the populations; the 2023 surveys yielded the highest number (304) of individual hitch captured. The increase could possibly be due to more water available from a rainy year. The 2023 surveys also show there is an influx of age classes, thus indicating there is reproduction occurring across a range of years and climatic conditions. This diverse demographic makeup of the subspecies' population in Clear Lake provides support that there is currently redundancy within the portion and bolsters the subspecies' resiliency. Representation and redundancy in this portion are similar to historical conditions, with the population narrowly distributed and occupying the same ecological niche. The current resiliency is moderate for this portion, and this portion retains sufficient resiliency such that it will be able to withstand stochastic environmental variation in the near term. Therefore, the subspecies is not in danger of extinction within this portion of its range.

Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This does not conflict with the courts' holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did not apply the aspects of the Final Policy, including the definition of “significant” that those court decisions held to be invalid.

Determination of Status

Based on the best scientific and commercial data available, we determine that the Clear Lake hitch meets the Act's definition of a threatened species throughout its range. Therefore, we propose to list the Clear Lake hitch as a threatened species in accordance with sections 3(20) 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, foreign governments, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies, including the Service, and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The goal of this process is to restore listed species to a point where they are secure, self- sustaining, and functioning components of their ecosystems.

The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed ( https://www.fws.gov/​program/​endangered-species), or from our Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( 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 range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If the Clear Lake hitch 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 California would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Clear Lake hitch. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/​service/​financial-assistance.

Although the Clear Lake hitch is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery ( print page 4935) efforts for this subspecies. Additionally, we invite you to submit any new information on this subspecies 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 it 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 Clear Lake hitch that may be subject to conference and consultation procedures under section 7 of the Act are management of Federal lands administered by BLM and USFS, as well as actions that require a Federal permit (such as a permit from USACE under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or actions funded by Federal agencies such as the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency. Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Federal agencies should coordinate with the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ) with any specific questions on section 7 consultation and conference requirements.

Section 9 of the Act provides a specific list of prohibitions for endangered species but does not provide these same prohibitions for threatened species. Instead, pursuant to section 4(d) of the Act, for any species listed as a threatened species, the Secretary must issue protective regulations that are “necessary and advisable to provide for the conservation of such species” (these are referred to as “4(d) rules). Additional measures for the Clear Lake hitch are described below (see Protective Regulations Under Section 4(d) of the Act, below).

We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits for threatened wildlife are codified at 50 CFR 17.32, and general Service permitting regulations are codified at 50 CFR part 13. With regard to threatened 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.

II. Protective Regulations Under Section 4(d) of the Act

Background

As discussed in Available Conservation Measures, section 9 of the Act provides a specific list of prohibitions for endangered species but does not provide these same prohibitions for threatened species. Instead, pursuant to section 4(d) of the Act, for any species listed as a threatened species, the Secretary must issue protective regulations that are “necessary and advisable to provide for the conservation of such species” (these are referred to as “4(d) rules”). Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened species.

Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. With these two sentences in section 4(d), Congress delegated broad authority to the Secretary to determine what protections would be necessary and advisable to provide for the conservation of threatened species, and even broader authority to put in place any of the section 9 prohibitions, for a given species. Courts have recognized the extent of the Secretary's discretion under section 4(d) to develop rules that are appropriate for the conservation of a species. For example, courts have upheld, as a valid exercise of agency authority, rules developed under section 4(d) that included limited prohibitions against takings (see Alsea Valley Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 WL 511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to [them] with regard to the permitted activities for those species. [They] may, for example, permit taking, but not importation of such species. [They] may, for example, permit taking, but not importation of such species, or [they] may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Under our 4(d) authorities, we put in place protections intended to both prevent a threatened species from becoming an endangered species and to promote its recovery. We have two ways to put in place these protections for a ( print page 4936) threatened species: (1) we can issue a species-specific 4(d) rule (at 50 CFR 17.40-17.47 or 17.73-17.74), which would contain all of the protective regulations for that species; or (2) we can apply a “blanket rule” (for more information, see 89 FR 23919, April 5, 2024), which extends to threatened species without a species-specific rule all of the prohibitions that apply to endangered species under section 9 (with certain exceptions applicable to threatened species).

Both “blanket rules” and species-specific 4(d) rules explain what is prohibited for a threatened species, thus making the activity unlawful without a permit or authorization under the Act for the prohibited activity unless otherwise excepted in the 4(d) rule (species-specific 4(d) rules may also include affirmative requirements). Section 4(d) rules are therefore directly related to what actions may require permits in the future. As discussed in Available Conservation Measures, permits may be issued for purposes described in our threatened species permitting regulations at 50 CFR 17.32 and 17.72, including for recovery actions, conservation benefit agreements (previously referred to as candidate conservation agreements with assurances and safe harbor agreements), or habitat conservation plans. We may also except otherwise prohibited activities through a 4(d) rule itself, in which case threatened species permits would not be required for those activities. For example, there are two categories of exceptions that we frequently include in 4(d) rules, and these are for otherwise prohibited acts or forms or amounts of “take” that are: (1) unavoidable while conducting beneficial actions for the species, or (2) considered inconsequential (de minimis) to the conservation of the species. For otherwise prohibited take activities that require section 10 permits, programmatic approaches—such as general conservation plans and template habitat conservation plans—may be available as another way for project proponents to comply with take prohibitions or requirements applicable to one or more species while reducing the time that would otherwise be associated with developing individual permit applications. In addition, the Service and project proponents can reduce the need for such permits by developing standardized conservation measures that avoid the risk of “take.”

The provisions of the Clear Lake hitch's proposed protective regulations under section 4(d) of the Act are one of many tools that we would use to promote the conservation of the Clear Lake hitch. The proposed protective regulations would apply only if and when we make final the listing of the Clear Lake hitch as a threatened species. Nothing in 4(d) rules change in any way the recovery planning provisions of section 4(f) of the Act or the consultation requirements under section 7 of the Act. As mentioned previously in Available Conservation Measures, section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they 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, even before the listing of any species or the designation of its critical habitat is finalized, 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 critical habitat proposed to be designated for such species. These requirements are the same for a threatened species regardless of what is included in its 4(d) rule.

Whether a threatened species is protected through a “blanket rule” or a species- specific 4(d) rule, protective regulations do not alter section 7 obligations, including the criteria for informal or formal consultations or the analytical process used for biological opinions or concurrence letters. Section 7 consultation is required for Federal actions that “may affect” a listed species regardless of whether take caused by the activity is prohibited or excepted by a 4(d) rule (the “blanket rule” or a species-specific 4(d) rule.

For example, as with an endangered species, if a Federal agency determines that an action is “not likely to adversely affect” a threatened species, this will require the Service's written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency determinates that an action is “likely to adversely affect” a threatened species, the action will require formal consultation with the Service and the formulation of a biological opinion (50 CFR 402.14(a)). Because consultation obligations and processes are unaffected by 4(d) rules, we may consider developing tools to streamline future intra-Service and interagency consultations for actions that result in forms of take that are not prohibited by the 4(d) rule (but that still require consultation). These tools may include consultation guidance; streamlined, online consultation processes via the Service's digital project planning tool (Information for Planning and Consultation; https://ipac.ecosphere.fws.gov/​); template language for biological opinions; or programmatic consultations.

Provisions of the Proposed 4(d) Rule

Exercising the Secretary's authority under section 4(d) of the Act, we have developed a proposed rule that is designed to address the Clear Lake hitch's conservation needs. As discussed above under Summary of Biological Status and Threats, we have concluded that the Clear Lake hitch is likely to become in danger of extinction within the foreseeable future primarily due to habitat loss, degradation, and modification; nonnative species' predation; competition; and the effects of climate change. Section 4(d) requires the Secretary to issue such regulations as she deems necessary and advisable to provide for the conservation of each threatened species and authorizes the Secretary to include among those protective regulations any of the prohibitions that section 9(a)(1) of the Act prescribes for endangered species. We are not required to make a “necessary and advisable” determination when we apply or do not apply specific section 9 prohibitions to a threatened species (In re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 (D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 687 (1995))). Nevertheless, even though we are not required to make such a determination, we have chosen to be as transparent as possible and explain below why we find that, if finalized, the protections, prohibitions, and exceptions in this proposed rule as a whole satisfy the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Clear Lake hitch.

The protective regulations we are proposing for the Clear Lake hitch incorporate prohibitions from the Act's section 9(a)(1) to address the threats to the subspecies. The prohibitions of section 9(a)(1) of the Act, and implementing regulations 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 acts with regard to any endangered wildlife: (1) import into, or export from, the United States; (2) take (which ( print page 4937) includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) within the United States, within the territorial sea of 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, by any means whatsoever and in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce. This protective regulation includes all of these prohibitions because the Clear Lake hitch is at risk of extinction within the foreseeable future and putting these prohibitions in place would help prevent further declines in the subspecies, preserve the species remaining populations, and decrease synergistic, negative effects from other ongoing or future threats.

In particular, this proposed 4(d) rule would provide for the conservation of the Clear Lake hitch by prohibiting the following activities, unless they fall within specific exceptions or are otherwise authorized or permitted: importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating take would help to sustain water quality and water flow within the tributaries and improve reproductive success, prevent further declines preserve or improve the resiliency of the remaining populations, and decrease synergistic, negative effects from other ongoing or future threats. Therefore, we propose to prohibit take of the Clear Lake hitch, except for take resulting from those actions and activities specifically excepted by the 4(d) rule.

Exceptions to the prohibition on take would include all of the general exceptions to the prohibition on take of endangered wildlife, as set forth in 50 CFR 17.21, and additional exceptions, as described below.

Despite these prohibitions regarding threatened species, we may under certain circumstances issue permits to carry out one or more otherwise prohibited activities, including those described above. The regulations that govern permits for threatened wildlife state that the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species. These include permits issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act (50 CFR 17.32). The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

In addition, to further the conservation of the species, any employee or agent of the Service, any other Federal land management agency, the National Marine Fisheries Service, a State conservation agency, or a federally recognized Tribe, who is designated by their agency or Tribe for such purposes, may, when acting in the course of their official duties, take threatened wildlife without a permit if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a dead specimen that may be useful for scientific study; or (iv) remove specimens that constitute a demonstrable but nonimmediate threat to human safety, provided that the taking is done in a humane manner; the taking may involve killing or injuring only if it has not been reasonably possible to eliminate such threat by live capturing and releasing the specimen unharmed, in an appropriate area.

We recognize the special and unique relationship that we have with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we must cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the Clear Lake hitch that may result in otherwise prohibited take without additional authorization.

The proposed 4(d) rule would also provide for the conservation of the species by allowing exceptions that incentivize conservation actions or that, while they may have some minimal level of take of the Clear Lake hitch, are not expected to rise to the level that would have a negative impact ( i.e., would have only de minimis impacts) on the subspecies' conservation. The proposed exceptions to these prohibitions include activities associated with the cleanup of illegal cannabis cultivation sites in the Clear Lake watershed, Tribal collection, fish rescues, fuels and fire management activities, habitat management and restoration, and nonnative fish species removal (described below) that are expected to have negligible impacts to the Clear Lake hitch and its habitat.

Cleanup of Illegal Cannabis Cultivation Sites

Illegal cannabis cultivation in California has been an ongoing problem, and illegal grows are known to occur in Lake County within the Clear Lake hitch's range (Lake County News 2023, entire; California Statewide Law Enforcement Association 2020, entire). Although species-specific studies on the impact that illegal cannabis grows have on the Clear Lake hitch are not currently available, these illegal cannabis sites are known to impact fish and their habitats, not only during active operation but also when sites are left abandoned. As described above in the Threats section, many pesticides can be highly toxic and used illegally at cannabis grow sites. Fertilizers are also used at these sites. Growers can add these chemicals to their irrigation systems, causing the chemicals to seep into the surrounding soil and waterways (California Department of Pesticide Regulation 2021, p. 2; USDA 2023, entire). Fertilizers affect the water quality and may increase cyanobacteria blooms and fish kills (Baker 2018, p. 6).Water diversions associated with illegal cannabis cultivation sites, block fish passage, change flow regimes, and cause other secondary effects (Baker 2018, p. 6).

Cleanup efforts to address chemical contamination and water diversion structures from these illegal grow sites will help protect the surrounding ecosystem and discourage other growers from returning to the same sites (USDA 2023, entire). During cleanup efforts, some localized, short-term disturbances to Clear Lake hitch habitat may occur if activities occur within or adjacent to ( print page 4938) that habitat. Implementation of these cleanup activities will not appreciably reduce the likelihood of survival and recovery of the Clear Lake hitch and will result in a long-term benefit to the subspecies and surrounding ecosystem. Therefore, we propose to except take incidental to otherwise lawful activities that remove toxicants, other chemicals, and related water diversion infrastructure from illegal cannabis cultivation sites in the Clear Lake watershed.

Tribal Collection

The Clear Lake area is one of the earliest known sites to be occupied by Native Americans, approximately 10,000 years ago (Richerson et al. 2008, p. A259). For their subsistence, the local Pomo Tribes historically relied on the large spawning runs of hitch and other native migrating fish during the spring, drying and storing them to eat throughout the year. Tribes continued to harvest hitch until the mid-1980s, when the spawning runs began to decline (Big Valley Environmental Protection Agency 2013 in CDFW 2014, p. 26). California State regulations allowed capture of Clear Lake hitch on tributaries by hand or dip-net until the subspecies was designated a candidate for State listing under the CESA (CDFW 2014, p. 26).

In recognizing the Tribe's long-standing relationship to the subspecies, we propose to except take caused by collection of Clear Lake hitch by members of federally recognized Tribes for ceremonial use or traditional consumption if the collection is conducted pursuant to a Tribal conservation plan.

Fish Rescues

Clear Lake hitch may become stranded during drought or at other times when there is low water availability. Due to their reliance on connectivity between tributaries and lakes for the reproductive cycle, a reduction of flow in the tributaries during the spawning season can completely eliminate or greatly reduce the likelihood for successful reproduction or recruitment or both. The effects of drought will affect the entire subspecies because of its inherently narrow range and will result in strandings. Several entities aid stranded Clear Lake hitch, including State, Federal, Tribal, local, and private individuals.

Therefore, we propose to except take caused by rescue of individual Clear Lake hitch that are at risk of stranding and eventual death in drying or warming pools, and the subsequent transport and release into a flowing, connected tributary stream or into a larger waterbody ( e.g., Clear Lake, Blue Lakes, Tule Lake).

Fuels and Fire Management Activities

In certain areas, the use of fire and wildfire management such as prescribed burns, fuel reduction activities, and maintenance of fuel breaks (not including the use of heavy equipment such as bulldozers, backhoes, or tractors) may assist in protecting and maintaining land adjacent to the aquatic systems used by the Clear Lake hitch.

Establishing and maintaining required minimum vegetation clearance from dwellings or structures to reduce wildland fire risks to human life and property may assist in protecting and maintaining habitat for the Clear Lake hitch by controlling erosion and improving water quality. This process includes activities necessary to maintain the minimum clearance (defensible space) requirement from any occupied dwelling or occupied structure, or to the property line, whichever is nearer, to provide reasonable fire safety and to reduce wildfire risks consistent with the State of California fire codes or local fire codes/ordinances. Therefore, we propose to except take incidental to an otherwise lawful activity caused by fuels and fire management activities (such as prescribed fire) to reduce the risk or severity of catastrophic wildfire, and when such activities will be carried out in accordance with an established and recognized fuels or forest management plan that includes measures to minimize impacts to the Clear Lake hitch or aquatic habitats and will result in conservation benefits to the Clear Lake hitch.

Habitat Management and Restoration

Clear Lake hitch individuals require connectivity to lakes and tributaries throughout their lives. Different life stages depend on different habitat types. Tributaries are used for spawning and successful reproduction. During the spawning season, most adults likely migrate into the connected tributaries; however, some reproductive adults may stay within the lake and spawn along the shore, the mouth of tributaries, or in backwater areas ( e.g., Rodman Slough in Clear Lake). Outside of the spawning season, the Clear Lake hitch is primarily found in Clear Lake or Thurston Lake, but can also be found in Tule Lake, the Blue Lakes, and other permanent waterbodies such as reservoirs and ponds. Within the lacustrine habitats, the subspecies can be found in either the littoral zone (nearshore) as juveniles or the limnetic zone (sun-lit, offshore open water) as adults. During extreme drought conditions, the only successful reproduction may be within the lakes.

Nonnative vegetative growth along the lake's shoreline can outcompete the growth of important native wetland plant species, such as tule. Nonnative plant species, such as Himalayan blackberry ( Rubus armeniacus), growing along the tributaries can become so overgrown that they become passage barriers or they outcompete native species such as willows and cottonwoods. Removal and maintenance of excessive nonnative vegetation may assist the restoration of wetland and riparian habitats throughout the watershed so that these habitats can be used as breeding and rearing habitat for the Clear Lake hitch.

Therefore, we propose to except take incidental to otherwise lawful activity caused by habitat management and restoration efforts that specifically provide for the habitat needs of the Clear Lake hitch and include measures that minimize impacts to the subspecies and its habitat. These efforts must be carried out in accordance with finalized conservation plans or strategies for the Clear Lake hitch that have the approval of appropriate State or Federal agencies. These activities will most likely have some limited short-term impacts but overall will provide for conservation of the subspecies.

Nonnative Fish Species Removal

As noted earlier in this document, 25 different species of nonnative fish have been introduced into Clear Lake for recreational or biological control purposes, and although not all of them have become established, about 20 are still found in the lake today (Thompson et al. 2013, pp. 12-17). All of the piscivorous species in Clear Lake are potential predators of the Clear Lake hitch, and there have been accounts of the subspecies in the digestive tracts of both largemouth bass and channel catfish (Macedo 1994, p. 5; Moyle et al. 1995, pp. 154-155; Moyle et al. 2014, p. 10). Anecdotal reports suggest the Clear Lake hitch may be a main prey-item for largemouth bass. Predation and competition from the nonnative species will continue to affect the Clear Lake hitch at the individual, population, and subspecies level into the future throughout its range, reducing survival, reproduction, and recruitment, which reduces resiliency by decreasing the size of the spawning and overall population.

Nonnative species removal will significantly increase the viability of the Clear Lake hitch. Actions with the primary or secondary purpose of removing nonnative fish species that ( print page 4939) compete with, predate upon, or degrade the habitat of the Clear Lake hitch are beneficial to the Clear Lake hitch. Therefore, we propose to exempt take incidental to otherwise lawful activity caused by removal or eradication of nonnative fish species. This exception does not include actions that disturb habitat or involve the use of chemicals.

III. Critical Habitat

Background

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate a species' critical habitat concurrently with listing the species. 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(b)(2) 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 compiled in 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 the 4(d) rule. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may ( print page 4940) 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 scientific data available 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.

Critical Habitat Determinability

Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

We reviewed the available information pertaining to the biological needs of the subspecies and habitat characteristics where this subspecies is located, but sufficient data to perform the required consideration of economic impacts are lacking at this time.

Therefore, we conclude that the designation of critical habitat for the Clear Lake hitch is not determinable at this time. The Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

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;

(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.

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

Regulations adopted pursuant to section 4(a) of the Act are exempt from 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 and species-specific protective regulations promulgated concurrently with a decision to list or reclassify a species as threatened. The courts have upheld this position ( e.g., Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical habitat); Center for Biological Diversity v. U.S. Fish and Wildlife Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) rule)).

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, May 4, 1994), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), the President's memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes and Alaska Native Corporations (ANCs) on a government-to-government basis. In accordance with Secretary's 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 contacted all federally recognized Tribes in the range of the Clear Lake hitch during the initiation of our SSA development process. Two of the local Tribes provided technical review of the SSA report. We will continue to work with relevant Tribal entities during the development of a final rule for listing of, and a proposed rule for the designation of critical habitat for, the Clear Lake hitch.

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 Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Authors

The primary authors of this proposed rule are members of Fish and Wildlife Service's Species Assessment Team and Sacramento Fish and Wildlife 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 “Hitch, Clear Lake” in alphabetical order under FISHES to read as follows:

§ 17.11

Endangered and threatened wildlife.

* * * * *

(h) * * *

Common name	Scientific name	Where listed	Status	Listing citations and applicable rules
*         *         *         *         *         *         *
Fishes
( print page 4941)
*         *         *         *         *         *         *
Hitch, Clear Lake	Lavinia exilicauda chi	Wherever found	T	[ Federal Register citation when published as a final rule]; 50 CFR 17.44(mm).4d
*         *         *         *         *         *         *