2024-17237. Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Santa Ana Speckled Dace

Table 1—Overall Current Resiliency Conditions for Each Analysis Unit

Population	Amount of habitat	Quality of habitat	Dispersal	Size of population *	Resiliency *
Los Angeles River	Low	Low/Moderate	Low/Moderate	Low	Low.
San Gabriel River	Moderate	Moderate	Moderate	Moderate	Moderate.
Santa Ana River	Moderate	Moderate	Low	Low/Moderate	Low/Moderate.
San Jacinto River	Low	Low/Moderate	Low/Moderate	Low	Low.
* Resiliency is largely influenced by the size of population score, as this parameter is the most important in determining resiliency. Specifically, the resiliency score cannot be higher than the size of population score.

Representation

Representation, or adaptive capacity, is maximized in a species with healthy populations distributed across the breadth of its evolutionary lineages and ecological niches that is capable of moving to new, suitable environments or capable of altering their physical or behavioral traits (phenotypes) to match changing environmental conditions through either plasticity or genetic change (Nicotra et al. 2015, p. 1270; Beever et al. 2016, p. 132). By this definition, the adaptive capacity of the Santa Ana speckled dace from historical to current conditions has diminished due to the loss of historically occupied habitats across the range and isolation of ( print page 65824) small remnant populations in headwater habitats. This has reduced representation of evolutionary lineages in each watershed and the diversity of occupied ecological niches ( i.e., due to population extirpations and complete loss of lower watershed habitats). Remnant populations are relatively small and isolated, both within and across the four remaining analysis units. In spite of this, the number of miles of occupied streams is still relatively high, and it is unlikely that all populations will be impacted by threats evenly or in a significant way that would cause widespread extirpation.

Disrupted connectivity and restriction to headwaters means that populations have limited capacity to colonize new habitats or shift their distribution to avoid or mitigate threats. Disrupted connectivity also reduces or eliminates gene flow, increasing the impacts of genetic drift and inbreeding, and reducing evolutionary potential that could allow populations to adapt to changing environmental conditions, such as warming stream temperatures.

While other populations of speckled daces have shown plasticity in feeding behavior that facilitates responses to fluctuating resource availability, feeding plasticity is reduced in anthropogenically impacted populations (Behn and Baxter 2019, pp. 17-19) such as the Santa Ana speckled dace. Additionally, relative to other native fish, other species in the Santa Ana speckled dace complex have limited plasticity ( i.e., acclimation capacity) in their upper thermal tolerance, reducing tolerance for increasing water temperatures (Carveth et al. 2006, pp. 1436-1438).

Overall, these constraints on dispersal capacity, evolutionary potential, and plasticity, in combination with low to moderate resiliency of Santa Ana speckled dace populations, point to limited representation (adaptive capacity) within populations and across the species' range.

Redundancy

As with representation, redundancy from historical to current conditions for the Santa Ana speckled dace has been diminished due to permanent loss of historically occupied habitats. In particular, loss of the lower reaches of the currently occupied watersheds has eliminated access to refugial habitats that historically protected fish from extirpation during stochastic and catastrophic events including fire, drought, and debris flows. These habitats also allowed for recolonization of upper headwaters once conditions improved. These habitat losses have placed all remaining remnant populations at a much higher risk of extirpation due to catastrophic and even less severe stochastic events. This is illustrated by fish salvage efforts ( e.g., in the San Gabriel River analysis unit) that were needed after the 2020 Bobcat Fire to protect populations from debris flows; historical access to lower-elevation habitats would likely have allowed populations to persist and recolonize naturally ( i.e., without human intervention) in response to fire and debris flow events.

Currently, the Santa Ana speckled dace occupies 17 occurrences across four analysis units. This relatively broad distribution provides some level of redundancy and helps ensure that multiple populations contribute to species viability since all occurrences are unlikely to be impacted simultaneously by any single catastrophic event. Two of the analysis units with low resiliency (Los Angeles River and San Jacinto River) are more at risk of stochastic and catastrophic events, and the loss of either of these would reduce redundancy. However, the other two analysis units are significantly larger and less likely to become extirpated from stochastic or catastrophic events. Overall, redundancy has been reduced compared to historical conditions. The fact that Santa Ana speckled daces have been able to naturally recolonize areas shortly after a catastrophic event suggests that there is recovery potential where risks can be mitigated via human intervention, which could help to maintain redundancy in the future.

Summary of Current Condition

The Santa Ana speckled dace occurs in the San Gabriel, San Bernardino, and San Jacinto Mountain ranges in Los Angeles, San Bernardino and Riverside Counties, California. The majority of occupied habitat is on Federal lands, and the species occurs in 17 extant occurrences across four analysis units. Fish are largely restricted to the headwaters with a low to moderate quantity of habitat with moderate quality habitat readily available. There is limited connectivity within some of the populations, particularly in the Santa Ana River and San Jacinto River analysis units. Populations are generally stable currently, although smaller populations will be less able to withstand environmental and demographic stochasticity in the foreseeable future. The low to moderate resiliency across the four extant units, in addition to losses across the historical range, contributes to an overall reduced adaptive capacity for Santa Ana speckled dace populations, which may limit their ability to respond to novel changes in the environment. However, the species as a whole is generally resilient to periodic disturbances, and the species is consistently detected across the analysis units. Small population sizes not only increase risks from demographic and environmental stochasticity but also reduce the genetic and trait diversity that supports evolutionarily adaptive and plastic responses to change. Lack of connectivity and limited habitat availability also reduce the ability of populations to disperse in response to changing future conditions.

Overall viability of the Santa Ana speckled dace is reduced relative to historical conditions, however there are currently 17 extant populations across the range. We anticipate that while these populations are currently relatively stable, diminished viability over time may result in a low to moderate ability to sustain populations in the wild into the future. These are the baselines that we used when projecting the species' future condition.

Future Condition

To analyze future conditions, we developed two plausible scenarios to assess how the species' needs, threats, and habitat conditions may change at both mid-century and late century. We considered what the Santa Ana speckled dace needs for species viability, and we evaluated the past, current, and future influences that are affecting habitat and demographic needs. Habitat loss, habitat degradation, habitat fragmentation, increased risk of wildfire, nonnative species, climate change, and small population sizes are the threats evaluated in the future scenarios, as they are projected to influence the viability of the Santa Ana speckled dace into the future. None of the threats we identified were insignificant enough to exclude from our future condition evaluation. We applied our future forecasts to the concepts of resiliency, representation, and redundancy to describe the future viability of the Santa Ana speckled dace.

After evaluating the current threats described above, we determined that the Santa Ana speckled dace will likely continue to be impacted by all current identified threats. Because future changes in the global climate have the potential to affect a number of current threats, we developed two plausible future scenarios based on the recommended lower and upper bounds for climate change emissions scenarios, representative concentration pathway (RCP) 4.5 and RCP 8.5 at mid-century ( print page 65825) (2030-2059) and late-century (2070-2099) timepoints (Service 2023b, p. 10). We forecast the future scenarios at two timepoints (mid-century and late century) because these time periods are within the range of the available climate change model projections that we used to project changes in stream temperature, stream flow, and fire, and these model projections are considered the best available science (Service 2023a, pp. 15-16). Table 2, below, describes the change in parameters for each of the scenarios compared to the modeled baseline.

These future scenarios examine the same threats identified above under Current Condition, including habitat loss, habitat degradation, habitat fragmentation, increased risk of wildfire, nonnative species, small population effects, and climate change (extreme precipitation metrics (10-year flood events), stream flows, and stream temperatures). For area burned, we used the Cal-Adapt boundary selection tool to upload AU shapefiles to aggregate annual hectares burned in each AU (where data were available) for each RCP model. Current threats are predicted to be ongoing based on analysis including climate change models, discussions with species experts and land managers, and review of reports and other literature. Impacts from recreation and other human-related impacts (including maintaining current dams that fragment the habitat) are expected to continue in the future, while all climate models predict the main impacts of climate change will continue through the century. Since invasive species are hard to eradicate, we predict plausible impacts from these species will continue in the future, although management decisions will influence the level of impact to some degree.

For each scenario, we describe the threats that would occur in each analysis unit. We examined resiliency, representation, and redundancy under each of these two plausible scenarios. In this analysis, population resiliency depends on demographic conditions (including distribution size, population size, and connectivity) and the overall amount and quality of habitat that is available. Debris flows caused by heavy precipitation events (primarily wintertime storms that result in flood events), with or without the aggravating impact of wildfire burn scars, are a primary threat that influences resiliency for each analysis unit.

Table 2—Future Scenario Comparison Table: Change in Parameters From Modeled Baseline

Parameter	Scenario 1: RCP4.5		Scenario 2: RCP8.5
	Mid-century	Late century	Mid-century	Late century
Fire Probability	Slight increase: 1-6% increase	Slight increase: 2-9% increase	Increase: 8-13% increase	Significant increase: 12-22% increase.
Fire: Area Burned	Current rate	Current rate	Slight increase	Slight increase.
Mean Summer Stream Flows	Stable to Slight decline	Stable to Slight decline	Stable to Slight decline	Stable to Slight decline.
Mean Winter Stream Flows	Increase: 1.4-1.7 times higher	Increase: 1.1-1.4 times higher	Significant increase: 1.6-2.2 times higher	Significant increase: 1.8-3.2 times higher.
10-year Flood Events	Increase: 1.1-1.9 times higher	Slight increase: 1.0-1.5 times higher	Increase: 1.1-2.5 times higher	Significant increase: 1.2-3.6 times higher.
August Stream Temperatures	1 °C increase; Highest temp 24 °C	1.5 °C increase; Highest temp 24.5 °C	1.4 °C increase; Highest temp 24.4 °C	3.4 °C increase; Highest temp 26.4 °C.

Scenario 1

Resiliency —Under Scenario 1, a low-moderate emission scenario (RCP4.5) was used to predict impacts from threats related to climate change (including fire, stream flows, winter precipitation, and stream temperatures; see section 8.1 in the SSA report for more detail) at mid-century and late century. In this scenario, habitat loss, habitat degradation (human recreation activities, mining, roadways, and hydrological modifications and diversions), habitat fragmentation, nonnative species effects, and small population effects continue at the same rate. Impacts from a changing climate are already influencing Santa Ana speckled dace habitat in all analysis units and are projected to increase in the future under RCP4.5, albeit less than under RCP8.5. Based on the climate change projections, impacts from fire (area burned and fire frequency) and precipitation (primarily heavy winter precipitation and 10-year flood events) are predicted to vary based on the analysis unit, but in general the probability of fire and the magnitude of 10-year flood events will increase. Within the Santa Ana River analysis unit, resiliency is projected to slightly increase to moderate by mid-century in both emission scenarios due to a very slight increase (1% increase by mid-century and no change by late century) in fire risk, and the potentially beneficial impacts of higher flows in the absence of fire. As described above, modeled changes in wintertime base flows and the magnitude of 10-year flood events are proxies for changes in extreme precipitation/wintertime storms. Heavy precipitation events, with or without the aggravating impact of wildfire burn scars, have an outsized influence over future debris flows, which are widely acknowledged to lower resiliency of dace by reducing population size and degrading habitat. Resiliency is projected to be similar to current conditions at mid-century but is projected to decrease by late century. The future condition for the four analysis units under Scenario 1 is shown below in tables 3 and 4 for mid-century and late century projections, respectively.

Table 3—Future Scenario 1 (RCP4.5) Mid-Century Condition Table

Analysis unit	Amount of habitat	Quality of habitat	Dispersal	Size of population	Resiliency
Los Angeles River	Low	Low/Moderate	Low/Moderate	Low	Low.
San Gabriel River	Moderate	Low/Moderate	Moderate	Low/Moderate	Low/Moderate.
Santa Anta River	Moderate	Moderate	Low/Moderate	Moderate	Moderate.
( print page 65826)
San Jacinto River	Low	Low/Moderate	Low/Moderate	Low	Low.

Table 4—Future Scenario 1 (RCP4.5) Late Century Condition Table

Analysis unit	Amount of habitat	Quality of habitat	Dispersal	Size of population	Resiliency
Los Angeles River	Low	Low	Low/Moderate	Low	Low.
San Gabriel River	Moderate	Low	Moderate	Low	Low.
Santa Anta River	Moderate	Moderate	Low/Moderate	Moderate	Moderate.
San Jacinto River	Low	Low/Moderate	Low/Moderate	Low	Low.

Representation —In this scenario, adaptive capacity is further reduced from historical levels with impacts to the four analysis units that represent the last remnants of the species' historical range (the headwaters of four river systems). The San Gabriel River analysis unit is projected to become more degraded by the increased risk of fire and high rainfall events, reducing dispersal capacity and evolutionary potential within the current stronghold analysis unit. The Santa Ana River analysis unit has the best chance of maintaining current habitat and population sizes as there is less risk of fire. The least resilient analysis units, the San Jacinto River and Los Angeles River, are likely to remain small due to increased fire risk. In summary, ongoing reductions in habitat quantity, habitat quality, connectivity, and population sizes will continue degrading representation rangewide, contributing to reduced ability to adapt to changing conditions in the future under this scenario.

Redundancy —In this scenario, all four analysis units are projected to remain extant, although reduced resiliency and representation at late century put dace populations at higher risk of extirpation from catastrophic events. Although the distribution is projected to remain spread over four river systems, dace generally occur in the upper tributaries where there is a limited capacity to recover from high consequence events, such as fires, droughts, and debris flows. Two of the analysis units with low resiliency are more at risk of stochastic and catastrophic events, and the loss of either of these would reduce redundancy. The remaining two analysis units are significantly larger and less likely to become extirpated from stochastic or catastrophic events. The magnitude ( i.e., flow levels) of 10-year flood events, representing potentially catastrophic events that could extirpate dace occurrences, are 1.1 to 1.9 times higher than baseline 10-year flood events by mid-century (see Service 2023a, appendix D, table D-5, p. 86). In particular, Cajon Creek and the Santa Ana River Mainstem in the Santa Ana River analysis unit are projected to see flooding at 1.5 and 1.9 times baseline flood levels, respectively, placing these occurrences at higher risk of extirpation. By late century, reduced emissions under RCP4.5 lower the magnitude of 10-year flood events to 1.0-1.5 times baseline flood levels, slightly reducing the risk of extirpation due to debris flows caused by storms. Overall, it is unlikely that catastrophic events such as floods and subsequent debris flows would extirpate all current occurrences within an analysis unit, though some are at higher risk than others.

Scenario 2

Resiliency —Under Scenario 2, a high emission scenario (RCP8.5) was used to evaluate impacts from threats related to increased risk of wildfire and climate change (stream flows, winter precipitation, and stream temperatures; see section 8.1 of the SSA report for more detail) at mid-century and late century. In this scenario, habitat loss, habitat degradation (human recreation activities, mining, roadways, and hydrological modifications and diversions), habitat fragmentation, nonnative species effects, and small population effects continue at the same rate. Impacts from a changing climate are already influencing Santa Ana speckled dace in all analysis units, and the future impacts under RCP8.5 will continue to increase. Climate change projections predict increases in the probability of fire and the magnitude of 10-year flood events. As described above, modeled changes in wintertime base flows and the magnitude of 10-year flood events are proxies for changes in extreme precipitation/wintertime storms. Heavy precipitation events, with or without the aggravating impact of wildfire burn scars, have an outsized influence over future debris flows, which are widely acknowledged to lower resiliency of dace by reducing population size and degrading habitat. Under Scenario 2, at mid-century, all populations are projected to be at low resiliency and are more at risk of stochastic events; by late century, two of the analysis units will also be at risk of extirpation. The future conditions for the four analysis units projected under Scenario 2 for mid-century and late century are shown in tables 5 and 6, respectively.

Table 5—Future Scenario 2 (RCP8.5) Mid-Century Condition Table

Analysis unit	Amount of habitat	Quality of habitat	Dispersal	Size of population	Resiliency
Los Angeles River	Low	Low	Low/Moderate	Low	Low.
San Gabriel River	Moderate	Low	Low/Moderate	Low	Low.
Santa Anta River	Moderate	Low/Moderate	Low/Moderate	Low	Low.
San Jacinto River	Low	Low	Low/Moderate	Low	Low.

( print page 65827)

Table 6—Future Scenario 2 (RCP8.5) Late Century Condition Table

Analysis unit	Amount of habitat	Quality of habitat	Dispersal	Size of population	Resiliency
Los Angeles River	Low	Low	Low/Moderate	Extirpated	Extirpated.
San Gabriel River	Low/Moderate	Low	Low	Low	Low.
Santa Anta River	Low/Moderate	Low	Low	Low	Low.
San Jacinto River	Low	Low	Low/Moderate	Extirpated	Extirpated.

Representation —In this scenario, due to the heightened threats described in Scenario 2 the trajectory for projected loss of representation relative to historical and current conditions is more severe when compared to Scenario 1. This is driven by the potential extirpation of two of the four AUs, which represent the most southern and most western populations. These extirpations would represent complete loss of evolutionary lineages and occupancy of potentially unique habitats across the species' range. These decreases in the species' range would limit recovery potential as genetic and phenotypic diversity and the corresponding adaptive capacity in these AUs would be permanently lost.

Representation —In this scenario, the extirpation of two AUs by late century and low condition for all AUs at mid-century points to a sharp drop in redundancy across the species' range. In addition to reductions in resiliency, all AUs face elevated risks from high magnitude 10-year flood events at both mid and late-century, which correlates to higher risk of debris flows. In particular, all eight current occurrences within the Santa Ana AU will see 10-year flood events that are 1.4-2.5 times baseline flood levels at mid-century, placing the entire AU at risk from catastrophic debris flow events from extreme precipitation events. By late century, the magnitude of 10-year flood events is 1.2-3.6 times baseline flood flows rangewide, with almost all occurrences facing significantly higher 10-year flood levels, elevating AU-wide extirpation risks. Combined with reduced resiliency, these increases in potentially catastrophic flood events (and resulting debris flows from storms) indicate that at least two AUs are likely to be extirpated under Scenario 2 by late-century.

Summary of Future Condition

Future scenarios for the Santa Ana speckled dace point to conditions that will further degrade the viability of the species. Under a low to moderate emissions climate change scenario (Scenario 1, RCP4.5), one of the four analysis units (Santa Ana River) will have moderate resiliency given stochastic environmental and demographic disturbances through late century. Low resiliency across the remainder of the range will contribute to ongoing reductions in adaptive capacity and place populations at high risk of extirpation from catastrophic events due to limited capacity to respond and recover from high consequence events, including increased fire and debris flows. Under a higher emissions climate change scenario (Scenario 2, RCP8.5), two analysis units are projected to be extirpated by late century, with the remaining two units in low condition. All units will face elevated risks of extirpation from high-magnitude flood events. Losses of redundancy and representation rangewide, including the extirpation of two analysis units, will dramatically reduce overall species viability. Overall, future species resiliency is projected to be low, representation will become limited, and reduced redundancy will place the species at high risk from catastrophic events. Thus, the Santa Ana speckled dace will have less capacity to sustain populations in the wild in the future, reducing viability and elevating extinction risk. Table 7, below, describes the comparison between current condition and future condition for the species.

Table 7—Current and Future Condition Category Comparison Table

Analysis unit	Current	Mid-century future scenario 1	Mid-century future scenario 2	Late century future scenario 1	Late century future scenario 2
Los Angeles River	Low	Low	Low	Low	Extirpated.
San Gabriel River	Moderate	Low/Moderate	Low	Low	Low.
Santa Anta River	Low/Moderate	Moderate	Low	Moderate	Low.
San Jacinto River	Low	Low	Low	Low	Extirpated.

Determination of Santa Ana Speckled Dace'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, we found that habitat loss, habitat degradation, and habitat fragmentation (all Factor A) are the most substantial threats to the species' viability. Within the foreseeable future, we anticipate that heavier debris flows pose the greatest future threat to the Santa Ana speckled dace's viability. Increased debris flows, driven by an increase in heavy rainfall and wildfire, are projected to impact habitat quality ( print page 65828) and lead to future loss of habitat, particularly by late century. Effects from climate change are also projected to increase the probability of fire and affect habitat quality by raising water temperatures in summer and winter. We also considered the effects of nonnative species and the effects of small population size for their cumulative effects.

Given the presence of 17 populations across the four AUs that comprise the range of the Santa Ana speckled dace, and their general stability in terms of occurrence (detectability) and reproduction, the species is able to maintain its current resiliency. Historical constraints on dispersal capacity, evolutionary potential, and plasticity have reduced representation for the Santa Ana speckled dace. However, despite historical losses across the range, the species is currently extant among 17 occurrences, occupying 76 stream miles across four river systems. Having multiple populations provides redundancy against large catastrophic events, and it is unlikely that a single event would cause extinction across the species' range. When connectivity is still intact, populations have shown the ability to naturally recolonize areas affected by catastrophic events, which indicates that there is still some level of redundancy within populations (including the 2020 Bobcat Fire which impacted both the West Fork San Gabriel River and Bear Creek). Salvage efforts are also utilized to boost resiliency after flooding.

Santa Ana speckled dace populations are currently stable and reproducing, albeit at relatively low numbers. Small, isolated populations with reduced genetic diversity may magnify risk from demographic and environmental stochasticity. Lack of connectivity and limited habitat availability also reduce the ability of populations to shift in space in response to environmental change. However, the species shows resiliency in response to periodic disturbance, and fish are consistently found in the river systems they occupy. In addition, survey data indicate that in spite of multi-decadal threats and impacts, the species still occupies populations across its range. Furthermore, with four analysis units that have low to moderate resiliency, it is likely that the species will withstand stochastic events under current conditions. Given the current levels of resiliency, representation, and redundancy of the Santa Ana speckled dace across its range, and the relative stability the species maintains within each analysis unit, we conclude that the species is not currently in danger of extinction throughout all of its range.

We next considered whether the Santa Ana speckled dace is likely to become in danger of extinction within the foreseeable future throughout all of its range. In considering the foreseeable future for the species, we analyzed expected changes in habitat availability, habitat degradation, habitat fragmentation, increased risk of wildfire, presence of nonnative species, climate change, and small population sizes to mid-century (2030-2059) and late-century (2070-2099) timepoints (Service 2023a, pp. 35-46). We determined that these timeframes represent periods for which we can make reasonably reliable predictions about both the threats to the species and the species' response to those threats.

Under a low to moderate emissions climate change scenario (Scenario 1, RCP4.5), resiliency at mid-century will be similar to current conditions, remaining low to moderate across the four analysis units. Representation and redundancy will also be comparable to current conditions. Because of similar conditions in Scenario 1, the Santa Ana speckled dace's viability at mid-century is not expected to change from its current level. However, there is still uncertainty about the level of impact that debris flows and a generally increased risk of wildfire might have on habitat quality amid changing climate conditions. Under a higher emissions climate change scenario (Scenario 2, RCP8.5), all four analysis units are projected to have low resiliency by mid-century, putting them all at risk of extirpation from stochastic events. Representation is also projected to be diminished, making it harder for the Santa Ana speckled dace to adapt and recover from adverse conditions. Redundancy is also reduced from current condition, increasing the likelihood of extirpation. Overall, the Santa Ana speckled dace will experience ongoing declines due to primary threats, and a reduced overall capacity to sustain populations in the wild into the future, substantially reducing viability and elevating extinction risk. Secondary threats, while not influencing viability in significant ways currently, could have more pronounced adverse effects given continuous declines in future condition. Thus, after assessing the best available information, we conclude that the Santa Ana speckled dace is not currently 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 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.

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 species is in danger of extinction in a significant portion of its range. In undertaking this analysis for the Santa Ana speckled dace, we choose to address the status question first.

We evaluated the range of the Santa Ana speckled dace to determine if the species is currently in danger of extinction in any portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways. We focused our analysis on portions of the species' range that may meet the Act's definition of an endangered species. For the Santa Ana speckled dace, we considered whether the threats or their effects on the species are greater in any biologically meaningful portion of the species' range than in other portions such that the species is currently in danger of extinction in that portion. For our analysis, we examined the following threats: habitat loss, habitat degradation, habitat fragmentation, increased risk of wildfire, changing climate trends, ( print page 65829) nonnative species, and small population effects.

While threats that may impact the Santa Ana speckled dace are not concentrated in any geographic areas within the range, our analysis indicated that two analysis units within the range may be more vulnerable to extirpation than the other two. The Los Angeles River analysis unit is a smaller unit with two occupied Santa Ana speckled dace occurrences. While these occurrences are connected, the analysis unit has limited available habitat, degraded habitat quality, and consistently low abundance estimates. The amount of available habitat within this unit, with 15 miles of occupied habitat, was rated as low because there are less than 20 stream miles of occupied habitat that does not require some form of management to maintain. Habitat quality within the analysis unit was rated as low to moderate because some of the essential features, including habitat free of nonnative species, adequate flows, appropriate water quality, and proper substrate, are degraded.

The San Jacinto River analysis unit is the smallest and least surveyed of the analysis units, occurring mostly within Tribal lands. Occurrences within this analysis unit are not influenced by high levels of human impact ( e.g., urbanization). Instead, impacts from drought, fire, and debris flows are the main threats affecting resiliency in this analysis unit. Nonnative species are present in the North and South Forks of the San Jacinto River, which may have contributed to the possible extirpation of Santa Ana speckled dace from these sites. The analysis unit has 2.8 miles of occupied habitat, which again rates as low because there are less than 20 stream miles of occupied habitat, with one known occupied occurrence. Other occurrences were reported as extant in the recent past but are now possibly extirpated even though these areas are still considered suitable. Habitat quality within the analysis unit was rated as low to moderate because some of the essential features, including habitat free of nonnative species and adequate flows, are degraded. Connectivity is considered low to moderate because the one extant occurrence is connected to historically occupied habitat that could become occupied again in the future, making dispersal possible between these areas. Size of population was rated as low due to only one known extant occurrence with flows becoming very small during dry conditions, limiting dace abundance within the analysis unit.

Because of the current condition due to the threats described above, we determined these portions may have a different status than the rest of the range and then considered whether these portions may be significant. Collectively, the Los Angeles River analysis unit and the San Jacinto River analysis unit account for 3 of 17 (17.6 percent) of occurrences, and account for 23.5 percent of occupied river miles within the range of the Santa Ana speckled dace. Therefore, together these portions collectively comprise only about 18 percent of overall Santa Ana speckled dace occurrences and account for less than 25 percent of total river miles within the species' range. The San Jacinto River analysis unit is spatially disjunct and may have unique genetic alleles within the range of the species, because of its location mostly within Tribal lands that do not experience the effects of human activities such as urbanization or recreation. However, both analysis units have relatively lower habitat quality compared to the other two analysis units. Thus, the Los Angeles River analysis unit and the San Jacinto River analysis unit do not constitute a large geographic area relative to the other two analysis units, nor do we find them to be individually or collectively significant. We found no other biologically meaningful portions of the Santa Ana speckled dace's range where the biological condition of the species may differ from its condition elsewhere in its range such that the status of the species in that portion may differ from any other portion of the species' range.

Therefore, no portion of the species' range provides a basis for determining that the species is currently 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

Our review of the best available scientific and commercial information indicates that the Santa Ana speckled dace meets the Act's definition of a threatened species. Therefore, we propose to list the Santa Ana speckled dace 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 ( print page 65830) 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 Carlsbad 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 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 California would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Santa Ana speckled dace. 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 Santa Ana speckled dace 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 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. 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 Santa Ana speckled dace 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. Forest Service and the U.S. Army Corps of Engineers, 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 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 local Service Field Office (see FOR FURTHER INFORMATION CONTACT , above) with any specific questions on section 7 consultation and conference requirements.

II. Protective Regulations Under Section 4(d) of the Act for the Santa Ana Speckled Dace

Background

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.

The courts have recognized the extent of the Secretary's discretion under this standard 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 [her] with regard to the permitted activities for those species. ( print page 65831) [She] may, for example, permit taking, but not importation of such species, or [she] 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).

The provisions of this species' 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 Santa Ana speckled dace. The proposed protective regulations would apply only if and when we make final the listing of the Santa Ana speckled dace as a threatened species. Nothing in 4(d) rules change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the Santa Ana speckled dace. 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.

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 (“blanket rule” or species-specific 4(d) rule). A 4(d) rule does not change the process and criteria for informal or formal consultations and does not alter the analytical process used for biological opinions or concurrence letters. 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 inter-Agency 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, Information for Planning and Consultation effects determination keys, template language for biological opinions, or programmatic consultations.

Provisions of the Proposed 4(d) Rule for the Santa Ana Speckled Dace

Exercising the Secretary's authority under section 4(d) of the Act, we have developed a proposed rule that is designed to address the Santa Ana speckled dace's conservation needs. As discussed above under Summary of Biological Status and Threats, we have concluded that the Santa Ana speckled dace is likely to become in danger of extinction within the foreseeable future primarily due to impacts to habitat, wildfire, climate change, nonnative species, and effects of small population size. 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 Santa Ana speckled dace.

The protective regulations we are proposing for the Santa Ana speckled dace incorporate prohibitions from section 9(a)(1) of the Act to address the threats to the species. 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 includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect) 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 proposed protective regulation includes all of these prohibitions because the Santa Ana speckled dace is at risk of extinction within the foreseeable future and putting these prohibitions in place will help to prevent further declines, preserve the species' remaining populations, slow its rate of decline, 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 Santa Ana speckled dace 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 preserve the species' remaining populations, slow their rate of decline, and decrease cumulative effects from other ongoing or future threats. Therefore, we propose to prohibit take of the Santa Ana speckled dace, 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 the general exceptions to the prohibition on take of endangered wildlife, as set forth in 50 ( print page 65832) 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; or (ii) Dispose of a dead specimen; or (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 Santa Ana speckled dace 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 Santa Ana speckled dace, are not expected to rise to the level that would have a negative impact ( i.e., would have only de minimis impacts) on the species' conservation. The proposed exceptions to the 4(d) rule's prohibitions include incidental take caused by: (1) forest or wildland management activities that are intended to minimize negative impacts from forest management rangewide, including activities conducted to maintain the minimum clearance (defensible space) requirement from structures to reduce wildfire risks consistent with State fire codes or local fire codes or ordinances; (2) habitat restoration and enhancement activities conducted as part of nonpermitted Federal or State habitat restoration plans that are for the benefit of the Santa Ana speckled dace or its habitat; and (3) removal of nonnative species (including removal of invasive, nonnative plants and aquatic predators) for the benefit of the Santa Ana speckled dace and its habitat. These proposed exceptions, as discussed below, are expected to have negligible or beneficial impacts to the Santa Ana speckled dace and its habitat.

Proposed Species-Specific Incidental Take Exceptions

We propose to except from the take prohibitions in the 4(d) rule those forest or wildland management activities that are intended to minimize negative impacts from forest management rangewide. Since the listing of the Santa Ana sucker ( Catostomus santaanae; see 65 FR 19686, April 12, 2000), a co-occurring species with the Santa Ana speckled dace, the U.S. Forest Service has adopted additional guidance and proposals to protect the Santa Ana sucker, and effects of management plans are expected to also result in beneficial conservation effects for the Santa Ana speckled dace. These excepted activities would include activities specifically conducted to maintain the defensible space requirement from structures; are intended to reduce wildfire risk, which would protect Santa Ana speckled dace habitat; and would provide enhanced public safety against fires.

We also propose to except from the take prohibitions in the 4(d) rule those habitat restoration and enhancement activities that include, but are not limited to, trash removal, removal of recreational dams, restoration of waterways from recreational mining, and dam operations that are beneficial to the Santa Ana speckled dace as outlined in a Service-approved plan ( e.g., a conservation plan developed in coordination with the Service where take has not been covered but where activities would lead to net conservation benefits for the Santa Ana speckled dace). Such measures would be implemented to minimize impacts to the Santa Ana speckled dace and its habitat, and are expected to result in the restoration and enhancement of habitat quality features such as natural stream flow, sediment transport, stream morphology, and water quality within the species' range.

In addition, we propose to except from the take prohibitions in the 4(d) rule the removal of nonnative species, including noxious weed control and other vegetation reduction in the course of habitat management and restoration to benefit the Santa Ana speckled dace. Activities may include mechanical and chemical control, provided these activities are conducted in a manner consistent with Federal and applicable State laws. Activities may also include removal or eradication of nonnative animal species, including, but not limited to, catfish, bass, crayfish, and bullfrogs. The use of electrofishing for eradication of predators would have to be approved by the Service prior to being implemented.

III. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as: 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 essential to the conservation of the species and which may require special management considerations or protection; and 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 ( print page 65833) 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 set forth in the 4(d) rule. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas 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, 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 Santa Ana speckled dace and habitat characteristics where this species is located. A careful assessment of the economic impacts that may occur due to a critical habitat designation is still ongoing, and we are in the process of acquiring the complex information needed to perform that assessment. Therefore, due to the current lack of data sufficient to perform required analyses, we conclude that the designation of critical habitat for the Santa Ana speckled dace is not ( print page 65834) 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 Proposed 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 this rulemaking, 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 will continue to work with Tribal entities during the development of recovery actions for the Santa Ana speckled dace.

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 Carlsbad Fish and Wildlife 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 Carlsbad 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, FWS proposes 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, amend the table in paragraph (h) by adding an entry for “Dace, Santa Ana speckled” to the List of Endangered and Threatened Wildlife 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
*         *         *         *         *         *         *
Dace, Santa Ana speckled	Rhinichthys gabrielino	Wherever found	T	[ Federal Register citation when published as a final rule]; 50 CFR 17.44(ll).4d
*         *         *         *         *         *         *