Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Clear Lake Hitch, 4916-4941 [2024-31756]
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Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2024–0161;
FXES1111090FEDR–256–FF09E21000]
RIN 1018–BH84
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
With Section 4(d) Rule for Clear Lake
Hitch
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the Clear Lake hitch (Lavinia
exilicauda chi), a freshwater fish
subspecies in the North American
minnow family that is restricted to the
Clear Lake watershed in Lake County,
California, as a threatened species under
the Endangered Species Act of 1973, as
amended (Act). This determination also
serves as our 12-month finding on a
petition to list the Clear Lake hitch.
After a review of the best available
scientific and commercial information,
we find that listing the Clear Lake hitch
is warranted. Accordingly, we propose
to list the Clear Lake hitch as a
threatened species with protective
regulations issued under section 4(d) of
the Act (‘‘4(d) rule’’). If we finalize this
rule as proposed, it would add the Clear
Lake hitch to the List of Endangered and
Threatened Wildlife and extend the
Act’s protections to this subspecies.
DATES: We will accept comments
received or postmarked on or before
March 17, 2025. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
eastern time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by March 3, 2025.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R8–ES–2024–0161, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
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SUMMARY:
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(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R8–ES–2024–0161, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
Supporting materials, such as the
species status assessment report, are
available at https://www.regulations.gov
at Docket No. FWS–R8–ES–2024–0161.
FOR FURTHER INFORMATION CONTACT:
Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento
Fish and Wildlife Office, 2800 Cottage
Way, Sacramento, CA 95825; telephone
916–414–6700. Individuals in the
United States who are deaf, deafblind,
hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or
TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States. Please see
Docket No. FWS–R8–ES–2024–0161 on
https://www.regulations.gov for a
document that summarizes this
proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, a species warrants listing if it
meets the definition of an endangered
species (in danger of extinction
throughout all or a significant portion of
its range) or a threatened species (likely
to become an endangered species within
the foreseeable future throughout all or
a significant portion of its range).
If we determine that a species
warrants listing, we must list the species
promptly and designate the species’
critical habitat to the maximum extent
prudent and determinable. We have
determined that the Clear Lake hitch
meets the Act’s definition of a
threatened species; therefore, we are
proposing to list it as such. Listing a
species as an endangered or threatened
species can be completed only by
issuing a rule through the
Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et
seq.).
What this document does. We
propose to list the Clear Lake hitch as
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a threatened species with a rule issued
under section 4(d) of the Act.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
because of any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. We
have determined that the Clear Lake
hitch meets the definition of a
threatened species due to the following
threats: habitat loss, degradation, and
modifications (Factor A), predation
(Factor C), competition (Factor E), and
the effects of climate change (Factor E).
Section 4(a)(3) of the Act requires that
the Secretary of the Interior (Secretary),
to the maximum extent prudent and
determinable, concurrently with listing
designate critical habitat for the species.
Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas
within the geographical area occupied
by the species, at the time it is listed,
on which are found those physical or
biological features (I) essential to the
conservation of the species and (II)
which may require special management
considerations or protections; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed, upon a determination by the
Secretary that such areas are essential
for the conservation of the species.
Section 4(b)(2) of the Act states that the
Secretary must make the designation on
the basis of the best scientific data
available and after taking into
consideration the economic impact, the
impact on national security, and any
other relevant impacts of specifying any
particular area as critical habitat. At this
time, critical habitat for the Clear Lake
hitch is not determinable.
Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other governmental
agencies, Native American Tribes, the
scientific community, industry, or any
other interested parties concerning this
proposed rule. We particularly seek
comments concerning:
(1) The Clear Lake hitch’s biology,
range, and population trends, including:
(a) Biological or ecological
requirements of the subspecies,
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including habitat requirements for
feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range,
including distribution patterns and the
locations of any additional areas
occupied by the subspecies;
(d) Historical and current population
levels, and current and projected trends;
and
Past and ongoing conservation
measures for the subspecies, its habitat,
or both.
(2) Threats and conservation actions
affecting the subspecies, including:
(a) Factors that may be affecting the
continued existence of the subspecies,
which may include habitat modification
or destruction, overutilization, disease,
predation, the inadequacy of existing
regulatory mechanisms, or other natural
or manmade factors;
(b) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this
subspecies; and
(c) Existing regulations or
conservation actions that may be
addressing threats to this subspecies.
(3) Additional information concerning
the historical and current status of this
subspecies.
(4) Information to assist with applying
or issuing protective regulations under
section 4(d) of the Act that may be
necessary and advisable to provide for
the conservation of the Clear Lake hitch.
In particular, we seek information
concerning:
(a) The extent to which we should
include any of the section 9 prohibitions
in the 4(d) rule; or
(b) Whether we should consider any
additional exceptions from the
prohibitions in the 4(d) rule.
Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
Please note that submissions merely
stating support for, or opposition to, the
action under consideration without
providing supporting information,
although noted, do not provide
substantial information necessary to
support a determination. Section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or a threatened
species must be made solely on the
basis of the best scientific and
commercial data available.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
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If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov. Our
final determination may differ from this
proposal because we will consider all
comments we receive during the
comment period as well as any
information that may become available
after this proposal. Based on the new
information we receive (and, if relevant,
any comments on that new
information), we may conclude that the
Clear Lake hitch is endangered instead
of threatened, or we may conclude that
the subspecies does not warrant listing
as either an endangered species or a
threatened species. In addition, we may
change the parameters of the
prohibitions or the exceptions to those
prohibitions in the 4(d) rule if we
conclude it is appropriate in light of
comments and new information
received. For example, we may expand
the prohibitions if we conclude that the
protective regulation as a whole,
including those additional prohibitions,
is necessary and advisable to provide for
the conservation of this subspecies.
Conversely, we may establish additional
exceptions to the prohibitions in the
final rule if we conclude that the
activities would facilitate or are
compatible with the conservation and
recovery of the subspecies. In our final
rule, we will clearly explain our
rationale and the basis for our final
decision, including why we made
changes, if any, that differ from this
proposal.
Public Hearing
Section 4(b)(5) of the Act provides for
a public hearing on this proposal, if
requested. Requests must be received by
the date specified in DATES. Such
requests must be sent to the address
shown in FOR FURTHER INFORMATION
CONTACT. We will schedule a public
hearing on this proposal, if requested,
and announce the date, time, and place
of the hearing, as well as how to obtain
reasonable accommodations, in the
Federal Register and local newspapers
at least 15 days before the hearing. We
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may hold the public hearing in person
or virtually via webinar. We will
announce any public hearing on our
website, in addition to the Federal
Register. The use of virtual public
hearings is consistent with our
regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On September 25, 2012, we received
a petition from the Center for Biological
Diversity to list the Clear Lake hitch as
an endangered or threatened species
under the Act and to designate critical
habitat. The Service issued a 90-day
finding on April 10, 2015 (80 FR 19259),
stating that the petition presented
substantial information that listing the
Clear Lake hitch may be warranted and
initiating a status review of the
subspecies. On December 3, 2020, we
published our 12-month finding that the
Clear Lake hitch was not warranted for
listing under the Act (85 FR 78029).
The Center for Biological Diversity
filed a complaint in the Northern
District of California on August 17,
2021, challenging our 12-month notwarranted finding. By stipulated
settlement agreement approved by the
court on April 14, 2022, the Service
agreed to submit to the Federal Register
a new 12-month finding for the Clear
Lake hitch on or before January 12, 2025
(Center for Biological Diversity v. U.S.
Fish and Wildlife Service, et al., No.
3:21–cv–06323–RS (N.D. Cal.)).
Peer Review
In 2020, a species status assessment
(SSA) team prepared an SSA report
(version 1.0; Service 2021, entire) for the
Clear Lake hitch’s 12-month finding (85
FR 78029; December 3, 2020). The SSA
team was composed of Service
biologists, in consultation with other
species experts. In 2024, the SSA report
was updated with new information (e.g.,
survey data, life history information,
conservation actions) (version 2.0;
Service 2024, entire). The SSA report
(version 2.0; Service 2024, entire)
represents a compilation of the best
scientific and commercial data available
concerning the status of the subspecies,
including the impacts of past, present,
and future factors (both negative and
beneficial) affecting the subspecies.
species.
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review in listing and recovery actions
under the Act (https://www.fws.gov/
sites/default/files/documents/peerreview-policy-directors-memo-2016-0822.pdf), we solicited independent
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scientific review of the information
contained in the Clear Lake hitch SSA
report (version 2.0; Service 2024,
entire). We sent the SSA report to three
independent peer reviewers and we
received responses from two reviewers.
Results of this structured peer review
process can be found at https://
www.regulations.gov. In preparing this
proposed rule, we incorporated the
results of these reviews, as appropriate,
into the SSA report, which is the
foundation for this proposed rule.
Summary of Peer Reviewer Comments
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As discussed above in Peer Review,
we received comments from two peer
reviewers on the draft SSA report,
version 2.0. We reviewed all comments
we received from the peer reviewers for
substantive issues and new information
regarding the information contained in
the SSA report. The peer reviewers
generally concurred with our methods
and conclusions, and provided
additional information, clarifications,
and suggestions, including edits to
improve the overall report. Otherwise,
no substantive changes to our analysis
and conclusions within the SSA report
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were deemed necessary, and peer
reviewer comments are incorporated in
version 2.1 of the SSA report (Service
2024, entire).
I. Proposed Listing Determination
Background
A thorough review of the taxonomy,
life history, and ecology of the Clear
Lake hitch is presented in the SSA
report (version 2.1; Service 2024, pp.
16–36) and in the previous 12-month
finding (85 FR 78029; December 3,
2020). The Clear Lake hitch is a
medium-sized freshwater fish
subspecies classified in the Lavinia
genus in the Leuciscidae family (Service
2024, p. 16). The subspecies is endemic
to the Clear Lake watershed in the
northern section of the California Coast
Ranges.
Historically, Clear Lake hitch
occurred in numerous lakes and ponds
found throughout the Clear Lake
watershed, including Clear Lake,
Thurston Lake, Upper Blue Lake, Lower
Blue Lake, and Lampson Pond. During
the spring, the Clear Lake hitch could
also be found spawning in the
numerous tributaries to these larger
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waterbodies, including Kelsey, Scott,
Middle, Adobe, Seigler Canyon,
Manning, Cole, Morrison, and Schindler
creeks (figure 1). The subspecies still
occurs in Clear and Thurston Lakes
throughout the year until the spring,
when reproductive adults migrate into
tributaries to spawn. Annual surveys
conducted in Clear Lake have shown
that there are fluctuations in the
estimated abundances from year to year.
The Clear Lake hitch was thought to be
extirpated from the Blue Lakes, but
observations and fish rescue efforts in
2022 show evidence of hitch in both
Upper Blue Lake and Lower Blue Lake
(Ewing 2022a, entire; Santana 2022,
entire). It is unclear whether Lampson
Pond still exists (B. Ewing in litt. 2020);
therefore, the status of the Clear Lake
hitch in Lampson Pond is unknown. All
of the described waterbodies besides
Thurston Lake were hydrologically
connected in the past, and it appears
that Thurston Lake and its tributary,
Thurston Creek, have always been
isolated from the other waterways (B.
Ewing in litt. 2020; P. Windrem in litt.
2020).
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1994, p. 2; California Department of
Fish and Wildlife (CDFW) 2014, p. 1).
Eggs are deposited on fine to mediumsized gravel that is along the margin or
mid-channel of the stream (Shapovalov
1940 as cited in Murphy 1948b, p. 102;
Kimsey 1960, p. 211; CDFW 2014, p. 8),
where they hatch into larval fish called
fry. Fry stay in the streams anywhere
between 11 to 152 days, migrating to the
lake once stream waters diminish
(Murphy 1948b, pp. 105, 106, 109; Swift
1965, pp. 75, 77–79; Moyle et al. 1995,
p. 154; Feyrer et al. 2019a, p. 1693).
Juvenile hitch less than 2 inches (in., 50
millimeters (mm)) standard length (SL,
length of a fish measured from the tip
of their mouth/snout to the end of the
tail, excluding the caudal (tail) fin) are
found within the nearshore habitat of
the lake, where they utilize stands of
tule (Schoenoplectus acutus) and other
submerged aquatic vegetation for cover
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and feed on various diet items,
including insects such as the Clear Lake
gnat (Chaoborus astictopus), Daphnia
and other planktonic crustaceans, and
chironomid midges.
The Clear Lake hitch females are
known to grow larger than males (Geary
1978, pp. 7, 9), and larger females
produce more eggs (average annual
fecundity is 36,000 eggs, with a range of
9,000–63,000) (Geary and Moyle 1980,
p. 387). Males are sexually mature
within their first or second year,
whereas females are sexually mature in
their second or third year (Murphy
1948b, pp. 103–104, 109; Moyle et al.
1995, p. 153). Hitch are thought to live
4 to 6 years based on scale analysis, but
it is possible some individuals can live
longer (Moyle 2002, p. 138; CDFW 2014,
p. 8).
There is uncertainty around where
current reproduction and recruitment
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Figure 1. Clear Lake Hitch range map with tributaries and lakes.
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are successfully occurring, and whether
other small waterbodies upstream of
Clear Lake are supporting the Clear Lake
population. In 2017 and 2018, 280 and
297 hitch were captured, respectively.
The Clear Lake hitch was the fifth most
abundant species/subspecies collected
over the course of the 2017 survey and
the most abundant species/subspecies
captured during the 2018 effort (USGS
2018, p. 8). However, the number of
hitch captured during the 2019, 2021,
and 2022 surveys drastically declined to
only 76, 40, and 6 individuals,
respectively. In 2023, the number of
individuals captured increased to 304
individuals and included multiple stage
classes (Clear Lake Hitch Summit
Agenda and Presentations 2023, p. 84;
Palm et al. 2023, entire). There is a
working hypothesis that the increase in
the number of hitch seen in 2023 is due
to hitch presence in smaller lakes in the
watershed (e.g., Blue Lakes, Tule Lake).
The theory is that small populations of
the Clear Lake hitch are successfully
reproducing in these other waterbodies,
and during a wet year, like the
historically wet year in 2023,
individuals were washed from these
smaller lakes into Clear Lake.
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Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533)
and the implementing regulations in
title 50 of the Code of Federal
Regulations set forth the procedures for
determining whether a species is an
endangered species or a threatened
species, issuing protective regulations
for threatened species, and designating
critical habitat for endangered and
threatened species.
The Act defines an ‘‘endangered
species’’ as a species that is in danger
of extinction throughout all or a
significant portion of its range, and a
‘‘threatened species’’ as a species that is
likely to become an endangered species
within the foreseeable future throughout
all or a significant portion of its range.
The Act requires that we determine
whether any species is an endangered
species or a threatened species because
of any of the following factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
These factors represent broad
categories of natural or human-caused
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actions or conditions that could have an
effect on a species’ continued existence.
In evaluating these actions and
conditions, we look for those that may
have a negative effect on individuals of
the species, as well as other actions or
conditions that may ameliorate any
negative effects or may have positive
effects.
We use the term ‘‘threat’’ to refer in
general to actions or conditions that are
known to or are reasonably likely to
negatively affect individuals of a
species. The term ‘‘threat’’ includes
actions or conditions that have a direct
impact on individuals (direct impacts),
as well as those that affect individuals
through alteration of their habitat or
required resources (stressors). The term
‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
that the species meets the statutory
definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
species’ expected response and the
effects of the threats—in light of those
actions and conditions that will
ameliorate the threats—on an
individual, population, and species
level. We evaluate each threat and its
expected effects on the species, then
analyze the cumulative effect of all of
the threats on the species as a whole.
We also consider the cumulative effect
of the threats in light of those actions
and conditions that will have positive
effects on the species, such as any
existing regulatory mechanisms or
conservation efforts. The Secretary
determines whether the species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ only
after conducting this cumulative
analysis and describing the expected
effect on the species.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
future on a case-by-case basis which is
further described in the 2009
Memorandum Opinion on the
foreseeable future from the Department
of the Interior, Office of the Solicitor
(M–37021, January 16, 2009; ‘‘MOpinion,’’ available online at https://
www.doi.gov/sites/doi.opengov.
ibmcloud.com/files/uploads/M37021.pdf). The foreseeable future
extends as far into the future as the U.S.
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Fish and Wildlife Service and National
Marine Fisheries Service (hereafter, the
Services) can make reasonably reliable
predictions about the threats to the
species and the species’ responses to
those threats. We need not identify the
foreseeable future in terms of a specific
period of time. We will describe the
foreseeable future on a case-by-case
basis, using the best available data and
consider the species’ life-history
characteristics, threat-projection
timeframes, and environmental
variability. In other words, the
foreseeable future is the period of time
over which we can make reasonably
reliable predictions. ‘‘Reliable’’ does not
mean ‘‘certain’’; it means sufficient to
provide a reasonable degree of
confidence in the prediction, in light of
the conservation purposes of the Act.
Analytical Framework
The SSA report documents the results
of our comprehensive biological review
of the best scientific and commercial
data regarding the status of the species,
including an assessment of the potential
threats to the species. The SSA report
does not represent our decision on
whether the species should be proposed
for listing as an endangered or
threatened species under the Act.
However, it does provide the scientific
basis that informs our regulatory
decisions, which involve the further
application of standards within the Act
and its implementing regulations and
policies.
To assess the Clear Lake hitch’s
viability, we used the three conservation
biology principles of resiliency,
redundancy, and representation (Shaffer
and Stein 2000, pp. 306–310). Briefly,
resiliency is the ability of the species to
withstand environmental and
demographic stochasticity (for example,
wet or dry, warm or cold years);
redundancy is the ability of the species
to withstand catastrophic events (for
example, droughts, large pollution
events); and representation is the ability
of the species to adapt to both nearterm and long-term changes in its
physical and biological environment
(for example, climate conditions,
pathogens). In general, species viability
will increase with increases in
resiliency, redundancy, and
representation (Smith et al. 2018, p.
306). Using these principles, we
identified the Clear Lake hitch’s
ecological requirements for survival and
reproduction at the individual,
population, and subspecies levels, and
described the beneficial and risk factors
influencing the subspecies’ viability.
The SSA process can be categorized
into three sequential stages. During the
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first stage, we evaluated the individual
Clear Lake hitch’s life-history needs.
The next stage involved an assessment
of the historical and current condition
of the subspecies’ demographics and
habitat characteristics, including an
explanation of how the subspecies
arrived at its current condition. The
final stage of the SSA involved making
predictions about the subspecies’
responses to positive and negative
environmental and anthropogenic
influences. Throughout all of these
stages, we used the best available
information to characterize viability as
the ability of the Clear Lake hitch to
sustain populations in the wild over
time, which we then used to inform our
regulatory decision.
The following is a summary of the key
results and conclusions from the SSA
report; the full SSA report can be found
at Docket No. FWS–R8–ES–2024–0161
on https://www.regulations.gov.
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Summary of Biological Status and
Threats
In this discussion, we review the
biological condition of the Clear Lake
hitch and its resources, and the threats
that influence the subspecies’ current
and future condition, in order to assess
the subspecies’ overall viability and the
risks to that viability.
Additional information regarding the
subspecies’ needs can be found in the
SSA report (Service 2024, pp. 24–36).
Subspecies Needs
The Clear Lake hitch has four life
stages: egg/embryo, larvae/fry, juveniles,
and adults. Below, we assess the best
available information to identify the
specific habitat components needed to
support individual fitness at all four life
stages for the Clear Lake hitch. Each life
stage requires different environmental
and habitat components according to
the different habitats used throughout
the species’ lifetime for spawning,
feeding, and sheltering. Once fertilized,
Clear Lake hitch eggs require adequate
stream flow to stay submerged and
oxygenated; fine to medium-sized, clean
gravel along the margin or within the
mid-channel of the stream to hold
position during development; and
presumably temperatures between 55.4
and 64.4 degrees Fahrenheit (°F) (13 and
18 degrees Celsius (°C)) for successful
development (Shapovalov 1940 in
Murphy 1948b, p. 102; Kimsey 1960, p.
211; Swift 1965, pp. 75, 77; Moyle et al.
1995, p. 154; Moyle 2002, p. 138; CDFW
2014, p. 8; Feyrer 2019a, p. 227). To
initiate hatching, water temperatures
must be maintained at 59 to 71.6 °F (15
to 22 °C) for multiple days (Swift 1965,
pp. 75, 77; Moyle 2002, p. 138).
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Newly hatched larvae/fry have a small
yolk sac that they require for
nourishment until they are able to swim
freely and capture aquatic invertebrate
prey (Kimsey 1960, p. 212). For cover
and temperature regulation,
downstream migrating fry likely require
instream and/or overhanging streamside
vegetation. The fry life stage requires
adequate stream flow to stay alive, and
adequate flow needs to be maintained
until the young of year are able to
migrate downstream into the lake
(Murphy 1948b, pp. 105, 106, 109; Swift
1965, pp. 75, 77–79; Moyle et al. 1995,
p. 154; Feyrer et al. 2019a, p. 1693).
Within the lake, Clear Lake hitch fry
and juveniles require stands of tule and/
or other submerged aquatic vegetation to
act as cover from predators and to
provide for invertebrate prey items,
including insects, planktonic
crustaceans, and chironomid midges.
Juveniles also require the lake water to
be of sufficient quality (i.e., welloxygenated (more than 2 milligrams per
liter (mg/L) of oxygen) and minimally
contaminated) and for water
temperatures to be 59 °F (15 °C) or
greater for survival (Franson 2012, p. 15;
CDFW 2014, p. 9). Juvenile hitch
transition to adulthood when they reach
about 2 in (50 mm) and they move from
the lake’s nearshore habitat out into the
open water of the lake.
Adult Clear Lake hitch require a diet
almost exclusively composed of
Daphnia, but also other zooplankton
species and adult midges and insects
(Lindquist et al. 1943, p. 199; Geary
1978, pp. 17, 25; Geary and Moyle 1980,
p. 388; Moyle et al. 1995, p. 153; Moyle
2002, pp. 137–138; Moyle et al. 2014, p.
3). Adult Clear Lake hitch also require
well-oxygenated (more than 2 mg/L of
oxygen) and minimally contaminated
water within the lake to ensure survival
(Franson 2012, p. 15; CDFW 2014, p. 9).
Adult Clear Lake hitch are only found
in the tributaries during the spawning
season. A reproductive adult that is
attempting to spawn requires an
adequate amount of flow to migrate
upstream to appropriate spawning
locations and downstream back to the
lake, and water temperatures between
55.4 and 64.4 °F (13 and 18 °C) to trigger
spawning activity (Swift 1965, pp. 75,
77; Moyle 2002, p. 138; Feyrer 2019a, p.
227).
In addition to stream spawning, some
reproductive adults spawn within the
lake (or ponds) instead of migrating into
the lake tributaries. Lake or pond
spawning Clear Lake hitch have been
documented spawning in areas with
only a mud substrate that contains no
gravel, so it is possible lake- or pondspawning individuals do not require
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gravel to successfully spawn (Kimsey
1960, p. 214; Geary 1978, p. 22).
Threats
In assessing the Clear Lake hitch’s
viability, we describe the threats acting
on the subspecies and its habitat. We
also provide a description of historical
and ongoing activities or regulations
that ameliorate the threats and provide
conservation benefits to the subspecies.
The threats acting on the Clear Lake
hitch include habitat loss, degradation,
and modification; predation;
competition; mercury mining; and the
effects of climate change. Due to the
different aquatic habitats (lake and
tributary) used by the subspecies, there
are threats acting on different life stages
of the subspecies. These threats along
with other ongoing and future stressors
acting on the species may act
synergistically to cause declines in
resiliency across populations and
analysis units. An example includes the
effects of climate change with increased
temperatures and aridity, may lead to
more fires in the area. Burned areas
create more runoff into the lake and
tributary systems, further degrading
habitat and affecting all life stages of the
Clear Lake hitch. We note here that
Thurston Lake does not have the level
of threats acting on the subspecies that
are affecting the hitch in Clear Lake.
Habitat Loss, Degradation, and
Modification
Habitat loss, degradation, and
modification are affecting the
subspecies in both the tributary and lake
systems. Changes to the Clear Lake
watershed have occurred since the mid1800s. Various forms of past mining
activities, agricultural and urban
development, pesticide use, increased
fire activity, past deforestation, and
historical grazing practices have all
contributed to the degradation of the
Clear Lake watershed and are also the
cause of toxic cyanobacteria blooms and
periodic fish kills in the lake. The
degradation of tributaries has changed
their hydrology, reducing the amount of
water retained in the streams over the
Clear Lake hitch’s spawning season.
This loss of flow earlier in the season
and the presence of numerous passage
barriers in the tributaries have greatly
reduced reproduction and early life
stage survival (egg, larvae) of the Clear
Lake hitch. The conversion of wetland
habitats surrounding Clear Lake not
only negatively impacted the lake’s
water quality but also reduced the
amount of rearing habitat for any
juvenile hitch that are able to migrate to
the lake from their natal stream. This
loss of rearing habitat also reduces early
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life stage survival (juvenile), further
reducing the likelihood of recruitment.
The impacts to Clear Lake’s water
quality affect adult hitch survival,
especially when poor lake conditions
result in large fish kills.
The Clear Lake hitch relies on
tributary habitat for spawning and early
rearing (Murphy 1951, p. 480). It is
estimated that, historically, the
tributaries to Clear Lake ran until at
least September; currently, however,
besides a few tributaries, most are
known to dry by early summer or late
spring (Murphy 1951, p. 480; B. Ewing
in litt. 2020; Ewing 2020, pp. 3–5; Ewing
2021, pp. 6–7; Ewing 2022b, p. 7; B.
Ewing in litt. 2024). A combination of
activities contributed, and are
continuing to contribute, to the
reduction in tributary flow during the
Clear Lake hitch’s spawning season.
Increased fire activity and legacy effects
from instream gravel removal and
deforestation have likely increased the
rate of runoff within the tributaries
during the winter. For example, burned
vegetation removes the root systems that
hold soil in place and, with subsequent
rainfall, increases runoff and
sedimentation into the subspecies’
habitat. Those same factors, possibly in
conjunction with both in-creek and
groundwater pumping for urban and
agricultural uses, have greatly reduced
the amount of flow that actually makes
it to the lake during the summer
(Murphy 1951, p. 480).
Gravel mining activities in the Clear
Lake watershed first began in the latter
half of the 19th century and occurred in
most of the spawning tributaries to Clear
Lake (Suchanek et al. 2003, pp. 1253–
1254; Thompson et al. 2013, p. 19).
Gravel mining originally occurred as
scattered operations throughout the
watershed until the early- to mid-20th
century, when operations became
centralized within the creeks (County of
Lake 1992, p. 48; Richerson et al. 1994,
p. III–19). This time period coincides
with improved automobile technology
and increased pressure to build more
reliable roads (County of Lake 1992, p.
48). As the human population within
the county grew in the 1960s and 70s,
new houses and associated roads
needed to be constructed to
accommodate the new residents. Since
the instream gravel was available as a
convenient source of material, gravel
was extracted from the tributaries and
was used as building material for both
homes and roads (County of Lake 1992,
p. 48; Richerson et al. 1994, p. VIII–
150). Until the 1981 partial moratorium
on instream gravel extraction,
approximately 1 million metric tons of
instream gravel was extracted from the
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watershed (Richerson et al. 1994, pp.
III–19–III–20; CDFW 2014, p. 29).
Although the amount of gravel mining
within the Clear Lake tributaries has
been reduced, mining and extraction are
still known to occur in areas where the
Clear Lake hitch occur, such as Scotts
and Alley creeks (Murphy 1948b, p.
106; Richerson et al. 2008, p. A260;
CDFW 2014, p. 29; B. Ewing in litt.
2020).
Past gravel mining in tributaries not
only removed spawning substrate that
the subspecies uses for reproduction
and egg development, but it also
lowered streambeds and destabilized
channels, causing increased erosion,
incision, and channelization. In
addition, large swaths of riparian
vegetation were removed from along the
tributaries to allow access for gravel
extraction, further exacerbating the
issues with erosion. The flushing of
eroded material not only negatively
impacted tributaries by increasing the
amount of suspended sediments and silt
within the creek, ultimately increasing
turbidity in some tributaries to zero
visibility, but it also negatively
impacted the lake ecosystem when
those sediments eventually were
transported into the lake (CDFG 1955,
entire; Richerson et al. 1994, pp. III–19,
VIII–2; Service 2024, pp. 44–48;
Suchanek et al. 2003, p. 1254; CDFW
2014, pp. 29, 45).
In addition to gravel mining,
agricultural practices have impacted,
and still are impacting, the Clear Lake
hitch’s habitat. Agricultural production
in the Clear Lake area has been
important since the mid-1800s with
crops that included apples, almonds,
grapes, nectarines, peaches, pears,
plums, and prunes, many of which are
still grown today (Suchanek et al. 2003,
p. 1256; U.S. Department of Agriculture
(USDA) 2023, entire). Much of the land
surrounding Clear Lake has been
converted from forest lands to
agricultural use. Large-scale
deforestation and land conversion
within the watershed began in the mid19th century. The large-scale forest
removal within the Clear Lake
watershed increased the amount of
erosion occurring in the tributaries,
contributing to bank incision within the
tributaries and causing increased
sediment and nutrient transport into the
lake (Suchanek et al. 2003, pp. 1247–
1248). Increased erosion and bank
cutting decrease the amount of time that
water is retained within the tributaries,
which affects water quantity and flow
needed by the subspecies.
Agricultural development is found
throughout the watershed; however, it is
most concentrated in the southwestern
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area of the watershed, primarily near
Kelsey and Adobe creeks (USDA 2023,
entire). The presence of agricultural
production in the watershed not only
has an impact on the amount of water
flowing in the tributaries to Clear Lake,
but it likely also increases the amounts
of contaminants, in the form of
pesticides and fertilizers, and sediment
entering the lake.
Pesticides are used for agriculture
production across the region. Pesticides
not only affect the habitat but may also
affect certain life stages of the Clear
Lake hitch and affect the subspecies’
prey species. The reported application
of pesticides on agricultural lands in the
region has increased from 2008 to 2021.
In 2008, more than 589,500 pounds of
different forms of chemicals used as
pesticides were applied in Lake County
(California Pesticide Information Portal
(CALPIP) 2019, unpaginated). In 2021,
that amount increased to almost 741,000
pounds (CALPIP 2021, unpaginated).
Pesticides are also known to be used for
illegal cannabis crops, and it is possible
that pesticides associated with illegal
grows could drain into the Clear Lake
watershed, further exacerbating
declining water quality conditions. The
primary concerns of pesticide effects on
Clear Lake hitch are the high toxicity.
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).
Pesticides are known to cause fish
casualties, growth delays, and
swimming abnormalities, making fish
more susceptible to predation (Baker
2018, pp. 2–3).
Fertilizers that get into waterways can
cause nutrient imbalances that affect
oxygen levels in the water, causing
cyanobacteria blooms and fish kills
(Baker 2018, p. 6). Another concern is
water diversions associated with these
illegal cultivation sites, which can block
fish passage, change flow regimes, and
cause other secondary effects (Baker
2018, p. 6). However, it is unknown
what effect agricultural pesticides or
pesticides associated with illegal grows
are having on the aquatic environment
in Clear Lake or if pesticides are being
transported through tributaries into the
lake (Suchanek et al. 2003, p. 1252).
Herbicides Are Used To Control
Nonnative Aquatic Vegetation in Clear
Lake
KomeenTM (copper sulfate) and
SONARTM (fluridone) have been applied
in the lake to control Hydrilla
verticillata, a highly invasive,
submerged aquatic weed (Suchanek et
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al. 2003, p. 1250; CDFW 2014, p. 32).
Two herbicides were used to target
different parts of the plant; Komeen
targets Hydrilla vegetative growth, while
SONAR treats the tubers (Suchanek et
al. 2003, p. 1250). SONAR is considered
less toxic than Komeen because SONAR
is a systemic herbicide that is slowly
absorbed in the vascular system;
SONAR also impacts similar non-target
vegetation such as tule and other
submerged vegetation (Bairrington 2000,
pp. 64–65; CDFW 2014, p. 32). Because
juvenile Clear Lake hitch require tule
habitat for cover and prey, the use of
Komeen can indirectly impact the hitch
by reducing the amount of rearing
habitat (CDFW 2014, p. 32). The use of
the herbicide, SONAR, at high
concentrations may have an impact on
early hitch development.
To meet the needs for agricultural
production, crops require sufficient
water. Water extraction and the early
drawdown of the tributaries, in
conjunction with habitat modifications
throughout the watershed, likely led to
the extinction of the Clear Lake splittail
(Pogonichthys ciscoides), another
stream-spawning native fish restricted
to the Clear Lake watershed (Moyle
2002, pp. 138–139; CDFW 2014, p. 27).
The Clear Lake splittail spawned later in
the season than the Clear Lake hitch
does, and, as the tributaries began to dry
earlier in the season, Clear Lake splittail
young were not able to migrate to the
lake (Cook et al. 1966, p. 146; Moyle
2002, pp. 138–139; CDFW 2014, p. 27).
Water extraction continues
throughout the watershed today for
agricultural and domestic purposes.
Both surface and ground water are being
diverted from Clear Lake tributaries
(legally and illegally) (CDFW 2014, p.
27), with the primary supply, about 60
percent, coming from groundwater
sources in an average year (County of
Lake 2014, entire; Clear Lake Hitch
Summit Agenda and Presentations 2023,
p. 18). These particular diversions are
legal extractions conducted under
riparian and water rights associated
with land ownership. Surface water is
diverted via intake pumps, and
groundwater is extracted via the
installation of shallow wells near the
tributary channel where they capture
underflow (CDFW 2014, p. 27). In 2013
and 2014, water rights users in Kelsey
Creek used 85 and 134.5 million gallons
of water, respectively, as well as 31.4
million gallons in each of those years
from Adobe Creek. In addition, from
2008 to 2014, 18 private water wells
were permitted for installation along the
two creeks. Although this amount of
water withdrawal is legally permissible,
it is unknown what effects this amount
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of water extraction is having on the
hydrology of these tributaries and the
Clear Lake hitch (Big Valley 2015, p. 4).
Water extractions, both legal and
illegal, are often cited as one of the
primary reasons for the reduction in the
Clear Lake hitch’s population; however,
although stream gauges are installed in
some of the tributaries and continue to
be installed, studies on the effects that
water extraction is having on Clear Lake
tributaries or the Clear Lake hitch are
still in initial stages (Clear Lake Hitch
Summit Agenda and Presentations 2023,
pp. 63–72). The CDFW compared stream
flow conditions at the U.S. Geological
Survey (USGS) gauge on Kelsey Creek
(USGS Station 11449500) and catch data
from the early 1990s. Both 1990 and
1991 were considered dry water years
with below average tributary flow
during the spring; however, the highest
number of hitch were captured during
seining efforts during those years. Flow
conditions improved to average or above
average for the following 3 years, but the
number of fish captured declined
(CDFW 2014, p. 27). Clear Lake hitch
abundance varies from year to year due
to a number of factors, including
streamflow. More data are needed to
better understand the relationship
between streamflow and population
numbers as well as the effects that water
extraction has on streamflow.
Historical land conversion was not
only for the purposes of agricultural
crops but also for livestock. The effects
of livestock on the land can include
overgrazing and the subsequent effects
of exacerbated erosion and water quality
degradation. Although overgrazing no
longer appears to be occurring in the
Clear Lake watershed, it was an issue
until the mid-20th century. Past
overgrazing in the watershed resulted in
the loss of streamside vegetation, which
decreased soil stability and increased
the rate of runoff within the creeks,
effectively reducing the amount of time
water is retained within the channel
(Murphy 1948b, p. 106; Suchanek et al.
2003, p. 1257). Although the amount of
grazing pressure has decreased in the
watershed, the impacts of past practices
are still contributing to the issues seen
in the watershed today.
Clear Lake hitch are affected by
passage barriers that block the ability of
the fish to move up and downstream.
The lack of adequate tributary flow can
act as a barrier to migrating fish,
reducing the amount of available
spawning habitat, and leaving young
stranded before they can migrate to the
lake. However, even when flow
conditions allow for migration, most of
the tributaries in the watershed contain
physical barriers that prevent hitch
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4923
passage, reducing the amount of
spawning and rearing habitat available.
The installation of dams, diversions,
roadways, and crossings have had a
negative impact on migrating hitch by
eliminating access to portions of stream
with suitable spawning habitat or
impeding passage during certain years
until specific flow conditions (i.e., high
flow) are met (Suchanek et al. 2003, p.
1254; CDFW 2014, pp. 45, 69–70). Using
a variety of data sources, CDFW
estimated that more than 92 percent of
the Clear Lake hitch’s historical 180
stream miles of tributary habitat is
currently blocked or has reduced access
due to the presence of barriers (CDFW
2014, pp. 24–25). In addition, since the
presence of a barrier on a spawning
stream reduces the amount of available
spawning habitat, reproducing adults
have to compete for available spawning
substrate. Fertilized eggs have been
known to accumulate just below a
barrier to the point that they will die
due to oxygen deprivation (Robinson
Rancheria 2015, p. 1).
Numerous dam structures can be
found throughout the Clear Lake
watershed, including dams on Kelsey,
Adobe, Highland Springs, and Manning
creeks. These dams were installed in the
mid- to late 20th century and were
installed primarily for irrigation and
recreation (Suchanek et al. 2003, p.
1248). In addition, CDFW identified
potential barriers on Lyon’s Creek,
Scott’s Creek, Seigler Canyon Creek,
Clover Creek, and Kelsey Creek (Ewing
2016a, entire). Additional barriers in the
watershed include flood and water
infrastructure that are not regularly
maintained that may block hitch
passage (CDFW 2014, p. 69). Flood
control projects have also contributed to
increased nutrient and sediment
transport in the watershed by
channelizing and armoring tributaries
with rip-rap and by reclaiming large
portions of wetland habitat that once
surrounded the lake (CDFW 2014, p.
29). There are almost 14 miles of levee
structures that are maintained by the
U.S. Army Corps of Engineers (USACE)
on Scotts, Middle, Clover, and Alley
creeks (USACE 2012, p. 3). The loss of
wetland habitat and increased nutrient
and sediment transport further
exacerbates water quality issues within
Clear Lake, likely reducing hitch
survival. Further, the loss of wetland
habitat to install the flood projects
reduced the amount of rearing habitat
for juvenile hitch, reducing the
likelihood of successful recruitment.
The lake habitat for the Clear Lake hitch
is also affected by habitat loss,
degradation, and modification through
wetland/tule habitat loss, cyanobacteria
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(blue- green algae) blooms, and fish
kills. Because of the impacts from the
historical land conversion, surrounding
wetland habitats were lost, essentially
removing Clear Lake’s natural filter.
Over time, increasing amounts of
sediment and nutrients from the
degraded tributaries were transported
directly into the lake, and nutrient
inputs from surrounding urban and
agricultural development ended up in
the lake. This increase in nutrients and
sediments entering Clear Lake degraded
its water quality, resulting in increased
cyanobacteria blooms that contributed
to or caused periodic fish kills.
With the loss of the extensive tule
expanses within the lake’s nearshore
habitat, there has been an increase in
the amount of sedimentation and
nutrients entering the lake (Prine et al.
1975, p. 21). Wetlands act as a filter for
sediments and nutrients transported
from the tributaries into the lake and the
loss of these large wetland complexes
directly surrounding the lake has had
negative consequences to Clear Lake’s
water quality (Richerson et al. 1994, pp.
III–1, V–1, VIII–1; Suchanek et al. 2003,
p. 1255). One result from the wetland
loss and water quality impacts is bluegreen algae blooms that occur in Clear
Lake from phosphorus input.
The blue-green algae, a cyanobacteria
and not an actual alga, will float to the
surface of the lake during the day and
can form large mats or scums. These
mats will either be broken down or resubmerged into the lake via wind action
or will deteriorate from sun exposure.
Phosphorus is found naturally in
underlying sediments within the Clear
Lake watershed (Richerson et al. 1994,
p. V–99), and the degradation of
tributaries have exposed those
sediments, allowing for transport into
the lake during rain events. A major
factor in the persistence and formation
of cyanobacteria blooms in Clear Lake
relates to periods of anoxia (deficiency
of oxygen), and where phosphorus is
released from sediments (Florea et al.
2022, p. ii). Blue-green algae blooms can
be toxic to fish (Gorham 1960, p. 242;
Prine et al. 1975, p. 23; Richerson et al.
1994, p. III–9); however, it is unknown
what impact they have on the Clear
Lake hitch.
Fires have occurred naturally in the
Clear Lake watershed as part of the
ecological cycle; however, with EuroAmerican settlement in the middle of
the 19th century, widespread
intentional burning occurred throughout
the watershed to clear brush or promote
grass growth for livestock grazing
(Suchanek et al. 2003, pp. 1243–1245,
1246–1247). Numerous fires have
occurred in the Clear Lake area during
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the 20th century, with several large
((10,000+ acres (ac), 4047 hectares (ha))
fires occurring directly in the watershed
(Suchanek et al. 2003, pp. 1244, 1248).
The fire seasons in California during
2017, 2018, and 2020 were some of the
worst on record. The 2018 Mendocino
Fire Complex, a portion of which
occurred in Lake County, was the third
largest fire on record in California
(CalFire 2022a, entire). Past fire
suppression practices within the State
of California have reduced the
occurrence of fire, but due to the
accompanying fuel accumulation, these
practices have made fires more
devastating when they do occur
(Suchanek et al. 2003, p. 1247). Fire
activity within the watershed results in
increased erosion and bank incision,
which channelize the stream and
increase water turbidity; fire activity is
likely to continue to increase within the
Clear Lake watershed (CalFire 2022b,
entire). Channelization can decrease the
amount of time water is retained within
the tributary channel (Murphy 1948b, p.
106; County of Lake 1992, p. 13). A
reduction of flow in the tributaries
during the spawning season can
eliminate or greatly reduce the
likelihood for successful reproduction
and/or recruitment, and due to the Clear
Lake hitch’s very narrow range, the
effects of channelization can impact the
subspecies’ viability.
Summary of Habitat Loss, Degradation,
And Modification
Habitat loss, degradation, and
modification due to agricultural and
urban development, pesticide use,
increased fire activity, and legacy
impacts from past mining activities, past
deforestation, and historical grazing
practices will continue to affect the
Clear Lake hitch at the individual,
population, and subspecies level into
the future throughout its range.
The Clear Lake hitch habitats that are
affected include the tributaries and lake
habitat. Impacts to both habitat types
will affect the Clear Lake hitch by
reducing survival and recruitment,
which reduces resiliency by decreasing
the size of the overall population. For
the tributaries, the loss of consistent
flow during the spawning season is seen
throughout the Clear Lake hitch’s range.
This influence is affecting the hitch at
the individual, population, and
subspecies level and is likely to
continue into the future. The loss of
consistent tributary flow, loss of
wetland/tule habitat, and reduced lake
water quality, has reduced, and will
continue to reduce, population
resiliency by reducing reproductive
success, early life stage survival, and the
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likelihood of recruitment. Loss of
resiliency may reduce the Clear Lake
hitch’s overall representation and
redundancy because fewer individuals
spawn in each of the tributaries and
natal habitat types. The reduction in
resiliency may result in a reduction to
the hitch’s overall representation and
redundancy.
There are no existing regulatory
mechanisms or management actions that
fully ameliorate habitat loss,
degradation, and modification within
the watershed, primarily because much
of the degradation occurred in the past,
although the effects are still occurring
today and will continue into the future.
There are planned activities associated
with the Clear Lake watershed, the
Middle Creek Flood Damage Reduction
and Ecosystem Restoration Project, that
will benefit improve water quality,
increase available wetland habitat for
the Clear Lake hitch and mitigate some
of the ongoing habitat loss, degradation,
and modification.
Construction of this project would
greatly benefit juvenile hitch by
providing increased cover from
predators and competitors, and
increased prey abundance The county’s
Clear Lake Shoreline Ordinance has
prohibited the destruction of tule on
residential properties along the
shoreline around Clear Lake and
requires full mitigation for any tule
habitat that is destroyed. This ordinance
benefits the Clear Lake hitch by
providing a consistent amount of tule
habitat for juveniles. In addition, the
county recently began a tule planting
initiative that informs the public about
the importance of tule habitat and how
to plant tule (Lake County 2024a,
entire).
Predation
Non-native fish introduced into Clear
Lake for recreational or biological
control purposes are known to prey
upon the Clear Lake hitch and all
introduced piscivorous (fish-eating) fish
species in Clear Lake are potential
predators of Clear Lake hitch. Clear Lake
hitch have been found in the stomach
contents of nonnative fish species in the
Clear Lake watershed including
largemouth bass (Micropterus nigricans)
and channel catfish (Ictalurus
punctatus; Macedo 1994, p. 5; Moyle et
al. 1995, pp. 154 –155; Moyle et al.
2014, p. 10). Mississippi silversides
(Menidia audens) are also known to
prey on larval fish, so it is likely some
predation of Clear Lake hitch larvae by
silversides is occurring in Clear Lake
(Bennett and Moyle 1996, pp. 526, 529;
Moyle et al. 2014, p. 9–10). The
nonnative species predation will
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continue to affect the Clear Lake hitch
at the individual, population, and
subspecies level into the future
throughout its range. Nonnative species
predation pressure within Clear Lake
impacts the hitch by reducing survival
and recruitment, which reduces
resiliency by decreasing the size of the
overall population.
Predation pressure within the
tributaries to Clear Lake impacts the
hitch by reducing survival,
reproduction, and recruitment, which
further reduces resiliency by decreasing
the size of the spawning population in
any given year and by reducing the
overall population altogether. This loss
of resiliency may reduce the hitch’s
overall representation and redundancy
because it results in fewer individuals
spawning in each of the tributaries and
natal habitat types.
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Competition
Competition from other nonnative
aquatic species affects the Clear Lake
hitch by reducing the available
resources for breeding, feeding, and
sheltering. For example, largemouth
bass (Micropterus nigricans) feed on
insects and zooplankton, directly
competing with both juvenile and adult
hitch for food resources (Moyle and
Holzhauser 1978, pp. 577–578, 581).
Threadfin shad (Dorosoma petenense)
and Mississippi silversides also
compete with the Clear Lake hitch
because they depend on the same
aquatic prey base (Anderson et al. 1986,
entire; Bairrington 2000, p. 33; CDFW
2014, p. 35). During years when
silverside or threadfin shad abundances
are especially high, they could reduce or
deplete prey resources on which the
hitch depends. A comparison of hitch
trend data and abundances of
silversides and threadfin shad suggests
there may be a correlation between their
abundances (CDFW 2014, p. 35), but
more detailed studies need to be
completed. There are currently no
regulatory mechanisms that address
competition by non-native species.
Mercury Mining Contaminants
Historically, small-scale commercial
mining operations along the shores of
Clear Lake occurred in 1864 and 1865.
Originally, the mining included borax
and sulfur (Suchanek et al. 2003, p.
1253). Large-scale commercial sulfur
extraction along the eastern shore of
Clear Lake began in 1865, when the
Sulphur Bank Mercury Mine was
established. The sulfur mining
operation switched over to mercury
mining in 1873, after mercury sulfide
deposits were found beneath their sulfur
source. Early extraction methods were
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not as destructive; however, in 1927, the
mine began to implement open- pit
mining at a large-scale level and would
bulldoze any waste products into the
lake (Richerson et al. 2008, p. A259).
The company continued to mine
sporadically throughout the 1950s until
the Sulphur Bank Mercury Mine was
officially closed in 1957, although waste
continued to contaminate the lake well
into the 1990s (Suchanek et al. 2008, p.
A153).
The highest concentrations of
mercury were found in the Oaks Arm
area, near the southeastern area of the
lake, which is where the Sulphur Bank
Mercury Mine is located; however,
elevated mercury levels have also been
detected lake-wide (Richerson et al.
2008, p. A271). The use of heavy
ground-moving equipment associated
with the open-pit mining also likely
contributed to the algal blooms seen in
the lake; this equipment can excavate
and disturb large swaths of sediments,
which increase nutrient runoff
(Richerson et al. 2008, p. A260).
Mercury and other mining-associated
contaminants have entered the lake via
erosion of waste piles, purposeful
dumping/bulldozing of mine waste,
atmospheric deposition, and subsurface
drainage (Richerson et al. 2008, p.
A275). Since 1992, the Environmental
Protection Agency (EPA) has
implemented numerous remediation
projects to address the continued
mercury contamination originating from
the Sulphur Bank Mercury Mine. The
remediation projects include the
removal of waste rock piles that erode
and discharge mercury, removal of
contaminated soil from residential
areas, installation of diversions to
prevent contaminated water and
sediments from entering Clear Lake,
closure of three abandoned geothermal
wells, capping of mine waste used to
build an old road, and installation of
two test sediment covers to contain
mercury- contaminated sediment within
Clear Lake (Richerson et al. 2008, pp.
A265, A275; EPA 2019, entire).
The Sulphur Bank Mercury Mine
became an EPA Superfund Site in 1990,
due to the elevated mercury levels
found in Clear Lake’s larger piscivorous
fish (Curtis 1977, p. 1; Suchanek et al.
2003, p. 1253; Thompson et al. 2013, p.
19). Elevated levels of mercury in fish
can significantly impair reproductive
success; however, effects can vary based
on a multitude of factors, including
species and life stage, and there are no
specific studies for the Clear Lake hitch
(Crump and Trudeau 2008, pp. 902, 904;
CDFW 2014, pp. 32–33). Mercury
concentrations found in developed
hitch caught in Clear Lake in 2019 and
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2020 averaged 0.14 milligrams per
kilogram (mg/kg) (Pierce et al. 2022,
entire), which exceed the Regional
Water Quality Control Board’s proposed
target of 0.09 mg/kg for fish in trophic
level 3, which includes the Clear Lake
hitch (CEPA 2008, p. 1). Although these
levels may exceed the Regional Water
Quality Control Board’s target, the best
available science does not provide the
lethal concentration of mercury specific
for Clear Lake hitch or levels that may
cause acute or chronic health effects to
the Clear Lake hitch, or whether they
are currently exposed to those levels in
Clear Lake. The threat of mercury
mining contaminants impacts the Clear
Lake population and has not affected
the Thurston Lake population.
Climate Change
Climate change affects the Clear Lake
hitch and its habitat due to shifts in
normal weather patterns. Changes in
temperature and precipitation regimes
can affect water quality and quantity for
the subspecies and can exacerbate other
effects, such as increased drought and
fire frequency. Annual average air
temperatures in California have
increased by 1.5 °F (0.83 °C) since the
beginning of the 20th century (Bales
2013, p. 2).
Temperatures are expected to
continue to increase in California’s
North Coast Region, which includes
Lake County (Grantham 2018, entire).
Drought conditions within the Clear
Lake watershed can have detrimental
effects on the Clear Lake hitch by
reducing the amount of flow within the
tributaries over the spawning season,
reducing water quality in the lake, and
possibly reducing emergent vegetation
growth in the lake. In 1946 and 1947,
there was almost a complete lack of
spawning runs due to the lack of water
flow in the tributaries (Murphy 1948b,
p. 105). However, the hitch’s ability to
spawn along the lake shore provides an
alternative to tributary spawning for at
least a small proportion of the
population.
More arid conditions can impact the
Clear Lake hitch by reducing the
amount of water that enters, and the
time period that water is retained
within, the tributaries and wetland
habitats that the hitch requires for
spawning and rearing. Increases in
aridity also reduce wetland/emergent
vegetation growth, which the hitch
requires for rearing and for cover from
predators. All of these factors can
impact the reproductive success and
recruitment of the hitch; these factors
could also reduce the hitch’s survival if
flows drop too drastically in the
tributaries and wetland habitats, or if
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hitch are subject to increased predation
due to a reduction in cover from aquatic
vegetation.
A reduction of flow in the tributaries
during the spawning season can
eliminate or greatly reduce the
likelihood for successful reproduction
and/or recruitment, and due to the Clear
Lake hitch’s very narrow range, the
effects of drought will impact the entire
subspecies. The ability to spawn along
the shore provides for some redundancy
within each population, but it is
unknown whether shore spawning
would be able to support a viable
population in the lakes over the long
term. Having a longer lifespan (4 to 6+
years) is likely an adaptation to variable
environmental conditions, but
prolonged droughts can have
devastating effects on the overall
population, especially in conjunction
with other factors that are currently
acting on the Clear Lake hitch.
There have been numerous efforts
over the last 10 years to save Clear Lake
hitch that become stranded in pools
within the tributaries when the
tributaries began to rapidly dry up. In
March 2014, 197 individuals were
rescued from two pools within Adobe
Creek, and the surviving fish were
released into Kelsey Creek (Ewing
2014a, entire). A few months later, in
June 2014, more than 1,400 hitch were
rescued from Cooper Creek and 389
hitch were rescued from Adobe Creek
when the flow within those creeks
began to rapidly drop. The surviving
individuals from both rescues were
released into Rodman Slough and at the
Konocti Vista Casino boat ramp,
respectively (Ewing 2014e, pp. 3, 6).
Unfortunately, during visual spawning
surveys that same year, approximately
300 adult hitch were found dead in a
portion of Adobe Creek that had dried
(Ewing 2014c, p. 7).
During the spring of 2018, numerous
young of year were stranded in a pool
within Cole Creek when the water flow
began to rapidly drop. The creek no
longer had continuous flow into the
lake, and the small pool where the fish
were stranded would have eventually
dried, killing all of the 3,100+ young
fish. Fortunately, members of Robinson
Rancheria and CDFW were able to
rescue the fish and transport them for
release at Clear Lake State Park, which
is located where Cole Creek enters the
lake (Ewing 2018a, p. 1). In April 2022,
268 individuals were rescued from two
pools within Adobe Creek and
transported to Konocti Casino Harbor on
Clear Lake where they were released
(Ewing 2022a, p. 1). On August 8, 2022,
295 hitch were rescued from a pool off
of Cooper Creek; the rescued hitch were
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translocated to Upper Blue Lake for
release (Santana 2022, p. 2). The effects
of climate change will continue to affect
both Clear Lake hitch populations, Clear
Lake and Thurston Lake.
Regulatory mechanisms and
management actions that are or could
potentially provide some protection
from the effects of climate change
include the California Global Warming
Solutions Act. This Act addresses
climate change by reducing greenhouse
gas emissions within California. There
are no regulatory mechanisms or
management actions that fully address
the effects of the climate change.
Synergistic Effects
Multiple influencing factors can act
on a species or its habitat at the same
time, which can result in impacts that
are not accounted for when factors are
analyzed separately. Factors that appear
minor when considered alone may have
greater impacts on individuals,
populations, or habitat when analyzed
in combination with other factors.
The Clear Lake hitch evolved in Lake
County, California, which has always
had a highly variable climate with
natural periodic droughts. However, the
degradation and loss of water retention
within their spawning streams and the
loss of large stretches of suitable
spawning habitat due to various
instream barriers has likely reduced
reproductive success and recruitment.
During drought conditions this can
reduce or eliminate all tributary- based
spawning in a given year. If drought
conditions persist over multiple years,
stream- based reproduction can also be
reduced or eliminated for multiple
years. Furthermore, climate change
projections show the Clear Lake area
will experience more varied
precipitation and higher air
temperatures during the spring, which
could result in even less water flow
being retained within the tributary
streams during the hitch’s spawning
season (Pierce et al. 2013, pp. 842, 844,
848–850. Although the hitch has the
ability to spawn within the lake, it is
unknown whether that method of
reproduction would be able to sustain a
viable population of hitch in Clear Lake.
Additionally, groundwater extraction
for agriculture and other uses likely
affects the Clear Lake hitch and its
habitat, particularly combined with
other chronic threats, such as habitat
loss, degradation, and modification
along with climate change that are
synergistically acting on the subspecies.
Water extraction in the summer is likely
to lower the water level in pool habitat
that acts as refugia for the subspecies in
disconnected tributaries until those
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tributaries become reconnected by
spring rains. It is the loss of this pool
habitat that affects the Clear Lake hitch
resiliency.
The combination of wetland habitat
loss and drought can increase predation
pressure and competition. Past habitat
loss has left only a small proportion of
wetland habitat surrounding Clear Lake
and drought conditions can reduce the
amount of emergent vegetation growth
within those remaining wetland
habitats. This reduction in emergent
vegetative growth reduces the amount of
cover the hitch uses to hide from
predators, increasing predation
pressure. It can also increase
competition as more fish concentrate
into this limited habitat type.
Conservation Efforts and Regulatory
Mechanisms
The Clear Lake hitch is protected
through existing regulatory mechanisms
and management actions that result in
conservation of the subspecies or its
habitat or both. Additional actions from
Tribes and other interested groups also
provide a benefit to the subspecies.
Below, we present some of the ongoing
efforts that provide conservation
benefits to the Clear Lake hitch or its
habitat or both from Federal, State,
Tribal, and local regulations and
management plans.
I. Federal
U.S. Forest Service (USFS)
The Clear Lake hitch has been
designated a USFS sensitive species.
Species identified as sensitive by the
USFS are species in which population
viability is a concern, as evidenced by
significant current or predicted
downward trends in population
numbers or density, or significant
current or predicted downward trends
in habitat capability that would reduce
a species’ existing distribution, or both.
The designation of sensitive species
ensures USFS: assists States, including
California, in achieving their goals for
conservation of endemic species; as part
of the process under the National
Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.), reviews programs
and activities, through a biological
evaluation, to determine their potential
effect on sensitive species; avoids or
minimizes impacts to species whose
viability has been identified as a
concern; if impacts cannot be avoided,
analyzes the significance of potential
adverse effects on the population or its
habitat within the area of concern and
on the species as a whole; establishes
management objectives in cooperation
with the States when projects on
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National Forest System lands may have
a significant effect on sensitive species
population numbers or distributions;
and establishes objectives for Federal
candidate species, in cooperation with
the Service or National Marine Fisheries
Service, and the States. Most of the
Clear Lake hitch’s range is on private
land and only the headwaters of a few
tributaries to the east of Clear Lake fall
within USFS lands.
II. State
California Endangered Species Act
(CESA)
On August 6, 2014, the CFGC
determined that the Clear Lake hitch
warranted listing as a threatened species
under the CESA due to the present or
threatened modification or destruction
of the subspecies’ habitat, predation on
and competition with the hitch, and the
anticipated impacts of climate change
(CDFW 2014, pp. 1–2). Section 2067 of
the California Fish and Game Code
defines a ‘‘threatened species’’ as a
native species or subspecies of bird,
mammal, fish, amphibian, reptile, or
plant that, although not presently
threatened with extinction, is likely to
become an endangered species in the
foreseeable future in the absence of the
special protection and management
efforts required by the State. As a
threatened species under the CESA, the
take of Clear Lake hitch individuals is
prohibited unless the take is authorized
by a State-issued permit.
However, CESA regulations only
apply to the take of individuals (i.e.,
they do not apply to the destruction or
modification of habitat). It should be
noted that California’s definition of take
(see section 86 of the California Fish
and Game Code) is not the same as the
Act’s definition of take (16 U.S.C.
1532(19)).
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California Environmental Quality Act
(CEQA) of 1970
The CEQA does not regulate land use
but requires all local and State agencies
in California to avoid or minimize
environmental damage, where feasible,
during the course of proposed projects.
The CEQA provides protection for
species that are State-listed or federally
listed as endangered, threatened, or rare.
Compliance with the CEQA may be
required for watershed restoration work
and any restoration work that requires a
‘‘lake or streambed alteration
agreement’’ (also known as a ‘‘1600
agreement’’; see sections 1600–1616 of
the California Game and Fish Code).
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Sustainable Groundwater Management
Act (SGMA)
The SGMA is a California State law
that provides a framework for
sustainable groundwater management in
California. Under section 10933(b) of
the California Water Code, groundwater
basins throughout the State have been
classified into four categories of
prioritization (high, medium, low, very
low). Phase 1 of the categorization
process was finalized in January 2019,
and 458 basins were prioritized during
that phase. Fifty-seven basins were
categorized under phase 2, which was
finalized on December 17, 2019 (DWR
2020, p. AD–3). The SGMA requires
water agencies and governments of
high- priority and medium-priority
basins to reduce overdraft and bring
groundwater basins into balance. The
State of California ensures the SGMA
goals are met as planned.
Several groundwater basins in the
Clear Lake watershed were prioritized
during the phase 1 prioritization. The
Big Valley basin to the southwest of
Clear Lake received a medium
prioritization, whereas the other eight
basins in the watershed (Scotts Valley,
Upper Lake Valley, Middle Creek, Long
Valley, High Valley, Clear Lake Cache
Formation, Burns Valley, and Lower
Lake Valley) were given a low priority.
The high- priority and medium-priority
basins will be managed by a group of
local agencies, referred to as
‘‘groundwater sustainability agencies,’’
and they will be tasked with reaching
sustainability in their basin within 20
years of implementing their
groundwater sustainability plans.
Groundwater sustainability agencies
have been formed for the Big Valley and
Scotts Valley basins, and a groundwater
sustainability plan was developed for
the Big Valley basin and published in
January 2022 (DWR 2019a, entire; DWR
2019b, entire; DWR 2019c, entire; DWR
2022, entire). Reducing overdraft from
groundwater pumping in the Big Valley
basin could improve flow conditions in
Thompson Creek, Adobe Creek, Kelsey
Creek, Cole Creek, McGaugh Slough,
and Manning Creek and could provide
sufficient water quantity for the Clear
Lake hitch to traverse the tributaries
during their spawning season.
III. Local
Clear Lake Integrated Watershed
Management Plan (CLIWMP)
The local resource conservation
districts developed CLIWMP to
document the historical and current
conditions of the Clear Lake watershed
and any management actions that have
been, or are currently being,
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implemented. Actions to enhance and/
or protect the watershed are then
identified using that background
information and timeframes for each
action are described. The CLIWMP
describes specific implementation
actions needed to create an
environmentally and economically
healthy watershed, both for the benefit
of the existing local community and for
future generations (County of Lake et al.
2010a, entire). Implementation of the
actions described in the CLIWMP would
benefit the Clear Lake hitch by
increasing the amount of wetland
habitat used for rearing, improving fish
passage within the tributary streams,
and restoring degraded tributary stream
and lake habitats. In addition to the
CLIWMP, the local conservation
districts also developed watershed
assessments for Scotts, Middle, and
Kelsey creeks. The purpose of those
assessments is similar to the CLIWMP;
they document the historical and
current conditions of those watersheds
and any management actions
implemented. The assessments will aid
in educating watershed users and
landowners on the condition of that
particular watershed, the management
and restoration actions that need to be
implemented to improve conditions,
and how the conditions of those
particular watersheds impact the
condition of Clear Lake (County of Lake
et al. 2010b, entire; County of Lake et al.
2010c, entire; County of Lake et al.
2010d, entire). Aggregate Resources
Management Plan
Lake County developed an Aggregate
Resources Management Plan (County of
Lake 1992, entire) to address concerns
about the impacts of gravel mining on
the watershed. The plan describes the
policies regarding mining in specific
areas, identifies areas deemed as
suitable for future mining projects, and
informs the public about mining in Lake
County. The plan calls for a moratorium
on mining in certain creeks and limits
mining activities to certain areas
(County of Lake 1992, pp. 83–86). The
regulation of gravel mining in the
county has reduced the rate of erosion
in the tributaries and increased the
amount of riparian habitat along the
stream channels, where the Clear Lake
hitch occurs. Although instream sources
of gravel are no longer the primary
source of aggregate in Lake County
because gravel is now acquired from
other sources, illegal gravel mining or
extraction has been known to occur in
the watershed (CEPA 2008, pp. 8, 89; B.
Ewing in litt. 2020).
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Middle Creek Flood Damage Reduction
and Ecosystem Restoration Project
The Middle Creek Flood Damage
Reduction and Ecosystem Restoration
Project (Middle Creek Project) is both a
flood risk reduction project for urban
and agricultural areas along the
northern end of Clear Lake and an
ecosystem restoration project that will
improve degraded wetland habitat and
water quality in Clear Lake. The Middle
Creek Project area was once
approximately 1,400 ac (567 ha) of
wetland habitat that was lost in the
early 1900s through the construction of
levees and conversion to agricultural
use.
Because these levees are no longer
functional and there is an urgent need
to restore surrounding wetland habitats
to improve the lake and the watershed,
Lake County requested USACE
assistance to evaluate the project in
1995. The Middle Creek Project consists
of acquiring reclaimed land, breaching
existing levees to flood historical
wetland and floodplain areas, and
reconnecting Scotts and Middle creeks.
Final NEPA and CEQA review was
completed in 2003 and 2004,
respectively, and the Middle Creek
Project was authorized under the Water
Resources Development Act of 2007 (33
U.S.C. 2201 et seq.). Federal funding for
the Middle Creek Project has not yet
been appropriated to start project
design; however, funding for land
acquisition has been acquired (USACE
2012, pp. 1–2; USACE 2023, entire).
The Middle Creek Project will benefit
the Clear Lake watershed by reducing
the amount of sediment and nutrients
entering Clear Lake, improving overall
water quality. It will also increase the
existing amount of wetland habitat
within the Clear Lake watershed by
approximately 79 percent (USACE 2012,
p. 3). If the Middle Creek Project were
to be implemented, it would benefit
adult hitch by improving the water
quality of Clear Lake, which would
likely reduce the incidence of large fish
kills. The Middle Creek Project would
also greatly benefit juvenile hitch by
increasing the amount of wetland
habitat surrounding the lake, providing
increased cover from predators and
competitors, and increased prey
abundance.
Clear Lake Shoreline Ordinance
The destruction of woody species and
tule on residential properties along the
shoreline around Clear Lake is
prohibited under section 23–15 of the
Clear Lake Shoreline Ordinance. These
types of vegetation can be managed via
mowing, pruning, or trimming, but
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those activities cannot result in the
death of the plant. In addition, the
ordinance applies a no-net-loss program
for commercial, resort, or public
properties that require mitigation for
any areas of vegetation cleared by
providing replacement plantings
(County of Lake et al. 2010a, pp. ES–16,
3–10; CDFW 2014, p. 42). The measures
associated with this ordinance benefit
the Clear Lake hitch by providing a
consistent amount of tule habitat for
juveniles.
Clear Lake Hitch Conservation Strategy
A group including local Tribes, local
government, State agencies, and Federal
agencies have been working on the
development of a conservation strategy
for the Clear Lake hitch. The strategy,
which is still in draft form, documents
the past and current status of the
subspecies, describes the negative
influences that have resulted in the
subspecies’ current status, and identifies
the actions that will address those
negative influences in order to maintain
a viable population of Clear Lake hitch
throughout the subspecies’ range. This
conservation strategy will provide
benefits to the subspecies through
public outreach regarding Clear Lake
hitch conservation; it will also direct
funds to implement actions or projects
that will specifically benefit the hitch.
Clear Lake Hitch Task Force
In August 2022, Tribal leaders and
members of the Tribal Environmental
Protection Agencies representing the Big
Valley Rancheria of Pomo Indians, Elem
Indian Colony Pomo Tribe, Robinson
Rancheria Band of Pomo Indians, and
the Habematolel Pomo of Upper Lake
went before the CFGC to express their
concern for the status of the Clear Lake
hitch. To address these concerns and
focus attention on the subspecies, the
Clear Lake Hitch Task Force (Task
Force) was formed. The Task Force had
its first meeting on September 14, 2022,
and consisted of Tribal and CDFW
representatives.
Since 2022, the Task Force has
expanded to include the California
Department of Water Resources, State
Water Resources Control Board, Central
Valley Regional Water Board, Lake
County Water Resources Department,
Fish and Game Commission, California
Natural Resources Agency, Service,
USGS, California Conservation Corps,
Bureau of Land Management (BLM),
USACE, and USFS. The Task Force’s
mission involves collaborative planning
for long-term responses to the decline in
the Clear Lake hitch population,
coordinating projects, identifying
funding sources, and facilitating
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information exchange among agencies.
The Task Force meets monthly and has
held three summits to help relay
information and coordinate projects
between different agencies.
IV. Miscellaneous
Lake County, the California
Department of Transportation, USFS,
State Water Resources Control Board,
and BLM have undertaken various
actions to prevent or reduce nutrients
and contaminants from entering Clear
Lake, or to track the amount of water
being used throughout the watershed
(West Lake Resource Conservation
District, undated, entire; CDFW 2014, p.
41). These actions include the Eightmile
Valley Sediment Reduction and Habitat
Enhancement Project, for which BLM
and the Scotts Valley Band of Pomo
Indians received a grant (CDFW 2014, p.
41). CDFW has two conceptual area
protection plans (CAPPs) that cover
different areas of the Clear Lake
watershed. A CAPP allows different
organizations and agencies to apply for
land acquisition funding through the
Wildlife Conservation Board. Both plans
focus on the protection of wetland and
riparian habitats, which would benefit
the Clear Lake hitch during its early life
stages (CDFW 2014, p. 42). Lastly, the
State Water Resources Control Board
issued draft emergency information
order regulations for the Clear Lake
watershed in September 2023. These
regulations were adopted by the Water
Resources Control Board on December
6, 2023. These regulations allow the
Water Resources Control Board to gather
information on water usage, particularly
groundwater pumping, in the Clear Lake
watershed and learn how, if at all, it
influences surface tributary flow (State
Water Resource Control Board 2023,
entire).
Lastly, the CDFW has begun to
address some of the fish passage barriers
in the Clear Lake hitch’s spawning
tributaries by installing fish ladders.
The reconstruction of one project
included installation of holding pools
for the fish to rest as they move
upstream and breaks in the ladder to
help slow the rate of water flow (Ewing
2017c, entire).
Cumulative Effects
We note that, by using the SSA
framework to guide our analysis of the
scientific information documented in
the SSA report, we have analyzed the
cumulative effects of identified threats
and conservation actions on the
subspecies. To assess the current and
future condition of the subspecies, we
evaluate the effects of all the relevant
factors that may be influencing the
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subspecies, including threats and
conservation efforts. Because the SSA
framework considers not just the
presence of the factors, but to what
degree they collectively influence risk to
the entire subspecies, our assessment
integrates the cumulative effects of the
factors and replaces a standalone
cumulative-effects analysis.
Current Condition
In order to evaluate the current
condition of the Clear Lake hitch, we
describe the resiliency of each
population along with the redundancy
and representation of the subspecies.
We considered demographic factors and
habitat elements to evaluate the
population-level resiliency. We divided
the population in Clear Lake to ensure
a more focused analysis regarding how
different areas of the lake contribute to
the subspecies’ survival.
We established that there are two
separate populations of Clear Lake hitch
within the Clear Lake watershed: one is
found in Clear Lake and its associated
tributaries and small lakes (i.e., Blue
Lakes and Tule Lake), and the other is
in Thurston Lake and its associated
tributary. Because Thurston Lake is not
currently hydrologically connected to
Clear Lake and possibly never was, we
do not anticipate it to be connected in
the future. The Clear Lake and Thurston
Lake populations were further
delineated into units to capture the
aquatic habitat features at a local, subwatershed level. We then grouped some
of the smaller delineated units into five
‘‘analysis units’’ using otolith (calcium
carbonate structure found in the inner
ear of the Clear Lake hitch) strontium
signatures that indicated natal origins
can be assigned to one of five strontium
isotope groups (SIGs) throughout the
watershed (Feyrer et al. 2019a, entire).
The use of adult otoliths for the natal
habitat strontium groupings indicates
that those areas associated with the SIGs
are contributing to reproduction and
recruitment. The terms ‘‘analysis unit’’
and ‘‘SIG’’ may be used interchangeably
for this analysis.
We delineated six analysis units
across the subspecies’ range. Thurston
Lake and Thurston Creek are described
as a single analysis unit. The Clear Lake
population includes five analysis units
described according to the general
location: Cole Creek; Kelsey Creek;
Adobe Creek and Clear Lake; Rodman
Slough; and Middle, Clover, and Siegler
Canyon creeks (SIGs 1 through 5,
respectively; Service 2024, p. 34).
Additional description of the
populations and analysis units can be
found in the SSA report (Service 2024,
pp. 26–28); see table 2, below, for a list
of the AUs.
In order to determine resiliency, we
assessed the conditions at the
population and analysis unit levels. We
used demographic and habitat factors
associated with each population. The
demographic factors include
reproduction, recruitment, and survival
at both the adult and juvenile life stages.
The habitat factors we used include
water quantity (tributaries) and quality
(lake) and wetland/tule habitat
condition.
Influencing those factors is the quality
and accessibility of Clear Lake hitch
habitat, which determines how well the
spawning areas allow for successful
reproduction, whether the nearshore
nursery areas allow for young-of-year
survival and subsequent recruitment,
and whether individuals can move
between tributary spawning habitats
and the lake. Within the tributaries,
water quantity and quality are important
factors influencing survival at all life
stages, reproductive success, and
recruitment, and water quantity and
quality are important for connectivity
between the tributaries and lakes.
Environmental stochastic events that
have the potential to affect the
subspecies include severe storms,
drought, contaminant exposure, and the
modification of habitat via natural (i.e.,
fire, drought, etc.) and anthropogenic
(i.e., conversion to agriculture,
vegetation management) means.
Additional information regarding the
4929
resiliency factors can be found in the
SSA report (Service 2024, pp. 28–34).
We describe the population and
analysis unit resiliency conditions using
categories of high, medium, and low
(with transitional stages). The
methodology for determining the
condition category includes assessment
of the demographic and habitat factors
within each analysis unit and within
each population (Service 2024, p. 79).
An overall high condition for a
population is an indicator of high
probability of population persistence.
Populations in high condition have:
accessible tributaries available
throughout the spawning season,
different natal habitats available for
reproduction, individuals that are
reproducing successfully and
populations that are actively recruiting,
and a sufficient amount and quality of
spawning and rearing habitat to allow
for varying population densities. An
overall moderate condition is an
indicator that probability of persistence
for that population may be
compromised by the lack and/or
degradation of one or more of the
subspecies’ needs, and a low overall
condition indicates low probability of
population persistence due to the lack
and/or degradation of multiple of the
subspecies’ needs. An extirpated
condition indicates no probability of
population persistence due to lack and/
or degradation of all of the subspecies’
needs. Conditions of low/extirpated,
moderate/low, and high/moderate are
transitionary between each of the
qualitative categories.
In order to determine the current
population estimates and distribution,
we used recent data (2015–2023) from
surveys conducted on spawning in the
tributaries, along the lake shore, and
throughout Clear Lake. That data also
informed the resiliency analysis for each
population and analysis unit. The
demographic and habitat parameters
used in the resiliency analysis for each
population and analysis unit is
provided in table 1, below (Service
2024, p. 67).
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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
High ...................................
Overall total from reproduction analysis is high.
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Demographic factor—
recruitment
Overall total from recruitment analysis is high.
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Habitat element—tributary
water quantity
Water is retained within
the tributaries throughout the spawning season.
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Habitat element—lake
water quality
Lake water is well
oxygenated and minimally contaminated.
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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—Continued
Condition
category
Demographic factor—
reproduction
Demographic factor—
recruitment
Habitat element—tributary
water quantity
Habitat element—lake
water quality
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.
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.
0 (Zero) ..............................
No reproduction ................
No recruitment ..................
Water is not retained within the tributaries during
any 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.
Lake water is not well
oxygenated and hypoxic
conditions occur frequently. Contaminants
are present, sometimes
at lethal levels.
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
Clear Lake .........................
...........................................
Cole Creek (SIG 1) ...........
Kelsey Creek (SIG 2) ........
Clear Lake, Adobe Creek
(SIG 3).
Moderate ...........................
Low ....................................
Moderate ...........................
Moderate ...........................
Moderate/Low ...................
Low ....................................
Moderate/Low ...................
Moderate/Low ...................
Low.
Low.
Low.
Low.
Rodman Slough (SIG 4) ...
Middle Creek, Clover
Creek, Seigler Canyon
Creek (SIG 5).
Thurston Lake ...................
Moderate ...........................
Low ....................................
Moderate ...........................
Low ....................................
Moderate/Low.
Low.
High ...................................
Moderate ...........................
Moderate.
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Thurston Lake ...................
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
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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
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Future condition scenario
2
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
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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’
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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,
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4931
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 Statelisted 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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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, selfsustaining, and functioning components
of their ecosystems.
The recovery planning process begins
with development of a recovery outline
made available to the public soon after
a final listing determination. The
recovery outline guides the immediate
implementation of urgent recovery
actions while a recovery plan is being
developed. Recovery teams (composed
of species experts, Federal and State
agencies, nongovernmental
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organizations, and stakeholders) may be
established to develop and implement
recovery plans. The recovery planning
process involves the identification of
actions that are necessary to halt and
reverse the species’ decline by
addressing the threats to its survival and
recovery. The recovery plan identifies
recovery criteria for review of when a
species may be ready for reclassification
from endangered to threatened
(‘‘downlisting’’) or removal from
protected status (‘‘delisting’’), and
methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Revisions of the plan
may be done to address continuing or
new threats to the species, as new
substantive information becomes
available. The recovery outline, draft
recovery plan, final recovery plan, and
any revisions will be available on our
website as they are completed (https://
www.fws.gov/program/endangeredspecies), or from our 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 nonFederal 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
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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
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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
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‘‘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
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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 speciesspecific 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
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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,
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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
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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
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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
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4937
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
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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.
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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 longstanding 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
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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
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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
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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
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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
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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.
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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
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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)).
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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
Common name
*
FISHES
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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 speciesspecific 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
Scientific name
*
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*
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Status
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) * * *
*
Listing citations and applicable rules
*
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Common name
Scientific name
Where listed
*
Hitch, Clear Lake ............
*
*
Lavinia exilicauda chi .....
*
Wherever found ..............
*
*
*
3. Amend § 17.44 by adding paragraph
(mm) to read as follows:
■
§ 17.44
Species-specific rules—fishes.
*
*
*
*
(mm) Clear Lake hitch (Lavinia
exilicauda chi).
(1) Prohibitions. The following
prohibitions that apply to endangered
wildlife also apply to the Clear Lake
hitch. Except as provided under
paragraph (mm)(2) of this section and
§§ 17.4 and 17.5, it is unlawful for any
person subject to the jurisdiction of the
United States to commit, to attempt to
commit, to solicit another to commit, or
cause to be committed any of the
following acts in regard to this species:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in
the course of a commercial activity, as
set forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) Exceptions from prohibitions. In
regard to this species, you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
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*
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*
Status
Listing citations and applicable rules
*
T
*
*
[Federal Register citation when published as a
final rule]; 50 CFR 17.44(mm).4d
*
(ii) Take, as set forth at § 17.21(c)(2)
through (4) for endangered wildlife.
(iii) Take, as set forth at § 17.31(b).
(iv) Possess and engage in other acts
with unlawfully taken wildlife, as set
forth at § 17.21(d)(2) for endangered
wildlife.
(v) Take incidental to an otherwise
lawful activity caused by:
(A) Activities that remove toxicants,
other chemicals, and related water
diversion infrastructure from illegal
cannabis cultivation sites in the Clear
Lake watershed.
(B) 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. This exception does not
include the use of heavy equipment,
such as bulldozers, backhoes, or
tractors, for fuels and fire management
activities.
(C) Habitat management and
restoration efforts that are specifically
designed to provide for the conservation
of the Clear Lake hitch’s habitat needs
PO 00000
Frm 00027
Fmt 4701
Sfmt 9990
*
*
and include measures that minimize
impacts to the Clear Lake hitch 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.
(D) Removal or eradication of
nonnative fish species, including, but
not limited to, carp and goldfish, for the
conservation benefit of the Clear Lake
hitch. This exception does not include
actions that disturb habitat or involve
the use of chemicals.
(vi) Purposefully take associated with:
(A) Collection of Clear Lake hitch
individuals by members of federally
recognized Tribes for ceremonial use or
traditional Tribal consumption if the
collection is conducted pursuant to a
Tribal conservation plan.
(B) Activities associated with rescuing
Clear Lake hitch individuals that are at
risk of stranding in drying or warming
pools and relocating them into
connected waterways.
*
*
*
*
*
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife
Service.
[FR Doc. 2024–31756 Filed 1–15–25; 8:45 am]
BILLING CODE 4333–15–P
E:\FR\FM\16JAP2.SGM
16JAP2
Agencies
[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Proposed Rules]
[Pages 4916-4941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31756]
[[Page 4915]]
Vol. 90
Thursday,
No. 10
January 16, 2025
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Clear Lake Hitch; Proposed Rule
Federal Register / Vol. 90 , No. 10 / Thursday, January 16, 2025 /
Proposed Rules
[[Page 4916]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2024-0161; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH84
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Clear Lake Hitch
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Clear Lake hitch (Lavinia exilicauda chi), a freshwater fish
subspecies in the North American minnow family that is restricted to
the Clear Lake watershed in Lake County, California, as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the Clear Lake hitch. After a review of the best available
scientific and commercial information, we find that listing the Clear
Lake hitch is warranted. Accordingly, we propose to list the Clear Lake
hitch as a threatened species with protective regulations issued under
section 4(d) of the Act (``4(d) rule''). If we finalize this rule as
proposed, it would add the Clear Lake hitch to the List of Endangered
and Threatened Wildlife and extend the Act's protections to this
subspecies.
DATES: We will accept comments received or postmarked on or before
March 17, 2025. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by March 3, 2025.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2024-0161,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2024-0161, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R8-ES-2024-0161.
FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Sacramento, CA 95825; telephone 916-414-6700. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
Please see Docket No. FWS-R8-ES-2024-0161 on https://www.regulations.gov for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range).
If we determine that a species warrants listing, we must list the
species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Clear Lake hitch meets the Act's definition of a threatened species;
therefore, we are proposing to list it as such. Listing a species as an
endangered or threatened species can be completed only by issuing a
rule through the Administrative Procedure Act rulemaking process (5
U.S.C. 551 et seq.).
What this document does. We propose to list the Clear Lake hitch as
a threatened species with a rule issued under section 4(d) of the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the Clear Lake hitch meets
the definition of a threatened species due to the following threats:
habitat loss, degradation, and modifications (Factor A), predation
(Factor C), competition (Factor E), and the effects of climate change
(Factor E).
Section 4(a)(3) of the Act requires that the Secretary of the
Interior (Secretary), to the maximum extent prudent and determinable,
concurrently with listing designate critical habitat for the species.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat. At this time, critical habitat for the Clear
Lake hitch is not determinable.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The Clear Lake hitch's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the subspecies,
[[Page 4917]]
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional areas occupied by the subspecies;
(d) Historical and current population levels, and current and
projected trends; and
Past and ongoing conservation measures for the subspecies, its
habitat, or both.
(2) Threats and conservation actions affecting the subspecies,
including:
(a) Factors that may be affecting the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this subspecies; and
(c) Existing regulations or conservation actions that may be
addressing threats to this subspecies.
(3) Additional information concerning the historical and current
status of this subspecies.
(4) Information to assist with applying or issuing protective
regulations under section 4(d) of the Act that may be necessary and
advisable to provide for the conservation of the Clear Lake hitch. In
particular, we seek information concerning:
(a) The extent to which we should include any of the section 9
prohibitions in the 4(d) rule; or
(b) Whether we should consider any additional exceptions from the
prohibitions in the 4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov. Our
final determination may differ from this proposal because we will
consider all comments we receive during the comment period as well as
any information that may become available after this proposal. Based on
the new information we receive (and, if relevant, any comments on that
new information), we may conclude that the Clear Lake hitch is
endangered instead of threatened, or we may conclude that the
subspecies does not warrant listing as either an endangered species or
a threatened species. In addition, we may change the parameters of the
prohibitions or the exceptions to those prohibitions in the 4(d) rule
if we conclude it is appropriate in light of comments and new
information received. For example, we may expand the prohibitions if we
conclude that the protective regulation as a whole, including those
additional prohibitions, is necessary and advisable to provide for the
conservation of this subspecies. Conversely, we may establish
additional exceptions to the prohibitions in the final rule if we
conclude that the activities would facilitate or are compatible with
the conservation and recovery of the subspecies. In our final rule, we
will clearly explain our rationale and the basis for our final
decision, including why we made changes, if any, that differ from this
proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On September 25, 2012, we received a petition from the Center for
Biological Diversity to list the Clear Lake hitch as an endangered or
threatened species under the Act and to designate critical habitat. The
Service issued a 90-day finding on April 10, 2015 (80 FR 19259),
stating that the petition presented substantial information that
listing the Clear Lake hitch may be warranted and initiating a status
review of the subspecies. On December 3, 2020, we published our 12-
month finding that the Clear Lake hitch was not warranted for listing
under the Act (85 FR 78029).
The Center for Biological Diversity filed a complaint in the
Northern District of California on August 17, 2021, challenging our 12-
month not-warranted finding. By stipulated settlement agreement
approved by the court on April 14, 2022, the Service agreed to submit
to the Federal Register a new 12-month finding for the Clear Lake hitch
on or before January 12, 2025 (Center for Biological Diversity v. U.S.
Fish and Wildlife Service, et al., No. 3:21-cv-06323-RS (N.D. Cal.)).
Peer Review
In 2020, a species status assessment (SSA) team prepared an SSA
report (version 1.0; Service 2021, entire) for the Clear Lake hitch's
12-month finding (85 FR 78029; December 3, 2020). The SSA team was
composed of Service biologists, in consultation with other species
experts. In 2024, the SSA report was updated with new information
(e.g., survey data, life history information, conservation actions)
(version 2.0; Service 2024, entire). The SSA report (version 2.0;
Service 2024, entire) represents a compilation of the best scientific
and commercial data available concerning the status of the subspecies,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the subspecies. species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act (https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf), we solicited independent
[[Page 4918]]
scientific review of the information contained in the Clear Lake hitch
SSA report (version 2.0; Service 2024, entire). We sent the SSA report
to three independent peer reviewers and we received responses from two
reviewers. Results of this structured peer review process can be found
at https://www.regulations.gov. In preparing this proposed rule, we
incorporated the results of these reviews, as appropriate, into the SSA
report, which is the foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed above in Peer Review, we received comments from two
peer reviewers on the draft SSA report, version 2.0. We reviewed all
comments we received from the peer reviewers for substantive issues and
new information regarding the information contained in the SSA report.
The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions, including edits to improve the overall report. Otherwise,
no substantive changes to our analysis and conclusions within the SSA
report were deemed necessary, and peer reviewer comments are
incorporated in version 2.1 of the SSA report (Service 2024, entire).
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
Clear Lake hitch is presented in the SSA report (version 2.1; Service
2024, pp. 16-36) and in the previous 12-month finding (85 FR 78029;
December 3, 2020). The Clear Lake hitch is a medium-sized freshwater
fish subspecies classified in the Lavinia genus in the Leuciscidae
family (Service 2024, p. 16). The subspecies is endemic to the Clear
Lake watershed in the northern section of the California Coast Ranges.
Historically, Clear Lake hitch occurred in numerous lakes and ponds
found throughout the Clear Lake watershed, including Clear Lake,
Thurston Lake, Upper Blue Lake, Lower Blue Lake, and Lampson Pond.
During the spring, the Clear Lake hitch could also be found spawning in
the numerous tributaries to these larger waterbodies, including Kelsey,
Scott, Middle, Adobe, Seigler Canyon, Manning, Cole, Morrison, and
Schindler creeks (figure 1). The subspecies still occurs in Clear and
Thurston Lakes throughout the year until the spring, when reproductive
adults migrate into tributaries to spawn. Annual surveys conducted in
Clear Lake have shown that there are fluctuations in the estimated
abundances from year to year. The Clear Lake hitch was thought to be
extirpated from the Blue Lakes, but observations and fish rescue
efforts in 2022 show evidence of hitch in both Upper Blue Lake and
Lower Blue Lake (Ewing 2022a, entire; Santana 2022, entire). It is
unclear whether Lampson Pond still exists (B. Ewing in litt. 2020);
therefore, the status of the Clear Lake hitch in Lampson Pond is
unknown. All of the described waterbodies besides Thurston Lake were
hydrologically connected in the past, and it appears that Thurston Lake
and its tributary, Thurston Creek, have always been isolated from the
other waterways (B. Ewing in litt. 2020; P. Windrem in litt. 2020).
[[Page 4919]]
[GRAPHIC] [TIFF OMITTED] TP16JA25.000
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.
Clear Lake hitch begin to migrate into spawning tributaries when
there is sufficient runoff, typically between February and May, and
sometimes into June if flows are sufficient (Macedo 1994, p. 2;
California Department of Fish and Wildlife (CDFW) 2014, p. 1). Eggs are
deposited on fine to medium-sized gravel that is along the margin or
mid-channel of the stream (Shapovalov 1940 as cited in Murphy 1948b, p.
102; Kimsey 1960, p. 211; CDFW 2014, p. 8), where they hatch into
larval fish called fry. Fry stay in the streams anywhere between 11 to
152 days, migrating to the lake once stream waters diminish (Murphy
1948b, pp. 105, 106, 109; Swift 1965, pp. 75, 77-79; Moyle et al. 1995,
p. 154; Feyrer et al. 2019a, p. 1693). Juvenile hitch less than 2
inches (in., 50 millimeters (mm)) standard length (SL, length of a fish
measured from the tip of their mouth/snout to the end of the tail,
excluding the caudal (tail) fin) are found within the nearshore habitat
of the lake, where they utilize stands of tule (Schoenoplectus acutus)
and other submerged aquatic vegetation for cover and feed on various
diet items, including insects such as the Clear Lake gnat (Chaoborus
astictopus), Daphnia and other planktonic crustaceans, and chironomid
midges.
The Clear Lake hitch females are known to grow larger than males
(Geary 1978, pp. 7, 9), and larger females produce more eggs (average
annual fecundity is 36,000 eggs, with a range of 9,000-63,000) (Geary
and Moyle 1980, p. 387). Males are sexually mature within their first
or second year, whereas females are sexually mature in their second or
third year (Murphy 1948b, pp. 103-104, 109; Moyle et al. 1995, p. 153).
Hitch are thought to live 4 to 6 years based on scale analysis, but it
is possible some individuals can live longer (Moyle 2002, p. 138; CDFW
2014, p. 8).
There is uncertainty around where current reproduction and
recruitment
[[Page 4920]]
are successfully occurring, and whether other small waterbodies
upstream of Clear Lake are supporting the Clear Lake population. In
2017 and 2018, 280 and 297 hitch were captured, respectively. The Clear
Lake hitch was the fifth most abundant species/subspecies collected
over the course of the 2017 survey and the most abundant species/
subspecies captured during the 2018 effort (USGS 2018, p. 8). However,
the number of hitch captured during the 2019, 2021, and 2022 surveys
drastically declined to only 76, 40, and 6 individuals, respectively.
In 2023, the number of individuals captured increased to 304
individuals and included multiple stage classes (Clear Lake Hitch
Summit Agenda and Presentations 2023, p. 84; Palm et al. 2023, entire).
There is a working hypothesis that the increase in the number of hitch
seen in 2023 is due to hitch presence in smaller lakes in the watershed
(e.g., Blue Lakes, Tule Lake). The theory is that small populations of
the Clear Lake hitch are successfully reproducing in these other
waterbodies, and during a wet year, like the historically wet year in
2023, individuals were washed from these smaller lakes into Clear Lake.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf).
The foreseeable future extends as far into the future as the U.S. Fish
and Wildlife Service and National Marine Fisheries Service (hereafter,
the Services) can make reasonably reliable predictions about the
threats to the species and the species' responses to those threats. We
need not identify the foreseeable future in terms of a specific period
of time. We will describe the foreseeable future on a case-by-case
basis, using the best available data and consider the species' life-
history characteristics, threat-projection timeframes, and
environmental variability. In other words, the foreseeable future is
the period of time over which we can make reasonably reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction, in light of the conservation purposes of the Act.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the Clear Lake hitch's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the Clear Lake hitch's ecological requirements for survival
and reproduction at the individual, population, and subspecies levels,
and described the beneficial and risk factors influencing the
subspecies' viability.
The SSA process can be categorized into three sequential stages.
During the
[[Page 4921]]
first stage, we evaluated the individual Clear Lake hitch's life-
history needs. The next stage involved an assessment of the historical
and current condition of the subspecies' demographics and habitat
characteristics, including an explanation of how the subspecies arrived
at its current condition. The final stage of the SSA involved making
predictions about the subspecies' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of the Clear Lake hitch to sustain populations
in the wild over time, which we then used to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R8-
ES-2024-0161 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the Clear
Lake hitch and its resources, and the threats that influence the
subspecies' current and future condition, in order to assess the
subspecies' overall viability and the risks to that viability.
Additional information regarding the subspecies' needs can be found
in the SSA report (Service 2024, pp. 24-36).
Subspecies Needs
The Clear Lake hitch has four life stages: egg/embryo, larvae/fry,
juveniles, and adults. Below, we assess the best available information
to identify the specific habitat components needed to support
individual fitness at all four life stages for the Clear Lake hitch.
Each life stage requires different environmental and habitat components
according to the different habitats used throughout the species'
lifetime for spawning, feeding, and sheltering. Once fertilized, Clear
Lake hitch eggs require adequate stream flow to stay submerged and
oxygenated; fine to medium-sized, clean gravel along the margin or
within the mid-channel of the stream to hold position during
development; and presumably temperatures between 55.4 and 64.4 degrees
Fahrenheit ([deg]F) (13 and 18 degrees Celsius ([deg]C)) for successful
development (Shapovalov 1940 in Murphy 1948b, p. 102; Kimsey 1960, p.
211; Swift 1965, pp. 75, 77; Moyle et al. 1995, p. 154; Moyle 2002, p.
138; CDFW 2014, p. 8; Feyrer 2019a, p. 227). To initiate hatching,
water temperatures must be maintained at 59 to 71.6 [deg]F (15 to 22
[deg]C) for multiple days (Swift 1965, pp. 75, 77; Moyle 2002, p. 138).
Newly hatched larvae/fry have a small yolk sac that they require
for nourishment until they are able to swim freely and capture aquatic
invertebrate prey (Kimsey 1960, p. 212). For cover and temperature
regulation, downstream migrating fry likely require instream and/or
overhanging streamside vegetation. The fry life stage requires adequate
stream flow to stay alive, and adequate flow needs to be maintained
until the young of year are able to migrate downstream into the lake
(Murphy 1948b, pp. 105, 106, 109; Swift 1965, pp. 75, 77-79; Moyle et
al. 1995, p. 154; Feyrer et al. 2019a, p. 1693).
Within the lake, Clear Lake hitch fry and juveniles require stands
of tule and/or other submerged aquatic vegetation to act as cover from
predators and to provide for invertebrate prey items, including
insects, planktonic crustaceans, and chironomid midges. Juveniles also
require the lake water to be of sufficient quality (i.e., well-
oxygenated (more than 2 milligrams per liter (mg/L) of oxygen) and
minimally contaminated) and for water temperatures to be 59 [deg]F (15
[deg]C) or greater for survival (Franson 2012, p. 15; CDFW 2014, p. 9).
Juvenile hitch transition to adulthood when they reach about 2 in (50
mm) and they move from the lake's nearshore habitat out into the open
water of the lake.
Adult Clear Lake hitch require a diet almost exclusively composed
of Daphnia, but also other zooplankton species and adult midges and
insects (Lindquist et al. 1943, p. 199; Geary 1978, pp. 17, 25; Geary
and Moyle 1980, p. 388; Moyle et al. 1995, p. 153; Moyle 2002, pp. 137-
138; Moyle et al. 2014, p. 3). Adult Clear Lake hitch also require
well-oxygenated (more than 2 mg/L of oxygen) and minimally contaminated
water within the lake to ensure survival (Franson 2012, p. 15; CDFW
2014, p. 9). Adult Clear Lake hitch are only found in the tributaries
during the spawning season. A reproductive adult that is attempting to
spawn requires an adequate amount of flow to migrate upstream to
appropriate spawning locations and downstream back to the lake, and
water temperatures between 55.4 and 64.4 [deg]F (13 and 18 [deg]C) to
trigger spawning activity (Swift 1965, pp. 75, 77; Moyle 2002, p. 138;
Feyrer 2019a, p. 227).
In addition to stream spawning, some reproductive adults spawn
within the lake (or ponds) instead of migrating into the lake
tributaries. Lake or pond spawning Clear Lake hitch have been
documented spawning in areas with only a mud substrate that contains no
gravel, so it is possible lake- or pond-spawning individuals do not
require gravel to successfully spawn (Kimsey 1960, p. 214; Geary 1978,
p. 22).
Threats
In assessing the Clear Lake hitch's viability, we describe the
threats acting on the subspecies and its habitat. We also provide a
description of historical and ongoing activities or regulations that
ameliorate the threats and provide conservation benefits to the
subspecies. The threats acting on the Clear Lake hitch include habitat
loss, degradation, and modification; predation; competition; mercury
mining; and the effects of climate change. Due to the different aquatic
habitats (lake and tributary) used by the subspecies, there are threats
acting on different life stages of the subspecies. These threats along
with other ongoing and future stressors acting on the species may act
synergistically to cause declines in resiliency across populations and
analysis units. An example includes the effects of climate change with
increased temperatures and aridity, may lead to more fires in the area.
Burned areas create more runoff into the lake and tributary systems,
further degrading habitat and affecting all life stages of the Clear
Lake hitch. We note here that Thurston Lake does not have the level of
threats acting on the subspecies that are affecting the hitch in Clear
Lake.
Habitat Loss, Degradation, and Modification
Habitat loss, degradation, and modification are affecting the
subspecies in both the tributary and lake systems. Changes to the Clear
Lake watershed have occurred since the mid-1800s. Various forms of past
mining activities, agricultural and urban development, pesticide use,
increased fire activity, past deforestation, and historical grazing
practices have all contributed to the degradation of the Clear Lake
watershed and are also the cause of toxic cyanobacteria blooms and
periodic fish kills in the lake. The degradation of tributaries has
changed their hydrology, reducing the amount of water retained in the
streams over the Clear Lake hitch's spawning season. This loss of flow
earlier in the season and the presence of numerous passage barriers in
the tributaries have greatly reduced reproduction and early life stage
survival (egg, larvae) of the Clear Lake hitch. The conversion of
wetland habitats surrounding Clear Lake not only negatively impacted
the lake's water quality but also reduced the amount of rearing habitat
for any juvenile hitch that are able to migrate to the lake from their
natal stream. This loss of rearing habitat also reduces early
[[Page 4922]]
life stage survival (juvenile), further reducing the likelihood of
recruitment. The impacts to Clear Lake's water quality affect adult
hitch survival, especially when poor lake conditions result in large
fish kills.
The Clear Lake hitch relies on tributary habitat for spawning and
early rearing (Murphy 1951, p. 480). It is estimated that,
historically, the tributaries to Clear Lake ran until at least
September; currently, however, besides a few tributaries, most are
known to dry by early summer or late spring (Murphy 1951, p. 480; B.
Ewing in litt. 2020; Ewing 2020, pp. 3-5; Ewing 2021, pp. 6-7; Ewing
2022b, p. 7; B. Ewing in litt. 2024). A combination of activities
contributed, and are continuing to contribute, to the reduction in
tributary flow during the Clear Lake hitch's spawning season. Increased
fire activity and legacy effects from instream gravel removal and
deforestation have likely increased the rate of runoff within the
tributaries during the winter. For example, burned vegetation removes
the root systems that hold soil in place and, with subsequent rainfall,
increases runoff and sedimentation into the subspecies' habitat. Those
same factors, possibly in conjunction with both in-creek and
groundwater pumping for urban and agricultural uses, have greatly
reduced the amount of flow that actually makes it to the lake during
the summer (Murphy 1951, p. 480).
Gravel mining activities in the Clear Lake watershed first began in
the latter half of the 19th century and occurred in most of the
spawning tributaries to Clear Lake (Suchanek et al. 2003, pp. 1253-
1254; Thompson et al. 2013, p. 19). Gravel mining originally occurred
as scattered operations throughout the watershed until the early- to
mid-20th century, when operations became centralized within the creeks
(County of Lake 1992, p. 48; Richerson et al. 1994, p. III-19). This
time period coincides with improved automobile technology and increased
pressure to build more reliable roads (County of Lake 1992, p. 48). As
the human population within the county grew in the 1960s and 70s, new
houses and associated roads needed to be constructed to accommodate the
new residents. Since the instream gravel was available as a convenient
source of material, gravel was extracted from the tributaries and was
used as building material for both homes and roads (County of Lake
1992, p. 48; Richerson et al. 1994, p. VIII-150). Until the 1981
partial moratorium on instream gravel extraction, approximately 1
million metric tons of instream gravel was extracted from the watershed
(Richerson et al. 1994, pp. III-19-III-20; CDFW 2014, p. 29). Although
the amount of gravel mining within the Clear Lake tributaries has been
reduced, mining and extraction are still known to occur in areas where
the Clear Lake hitch occur, such as Scotts and Alley creeks (Murphy
1948b, p. 106; Richerson et al. 2008, p. A260; CDFW 2014, p. 29; B.
Ewing in litt. 2020).
Past gravel mining in tributaries not only removed spawning
substrate that the subspecies uses for reproduction and egg
development, but it also lowered streambeds and destabilized channels,
causing increased erosion, incision, and channelization. In addition,
large swaths of riparian vegetation were removed from along the
tributaries to allow access for gravel extraction, further exacerbating
the issues with erosion. The flushing of eroded material not only
negatively impacted tributaries by increasing the amount of suspended
sediments and silt within the creek, ultimately increasing turbidity in
some tributaries to zero visibility, but it also negatively impacted
the lake ecosystem when those sediments eventually were transported
into the lake (CDFG 1955, entire; Richerson et al. 1994, pp. III-19,
VIII-2; Service 2024, pp. 44-48; Suchanek et al. 2003, p. 1254; CDFW
2014, pp. 29, 45).
In addition to gravel mining, agricultural practices have impacted,
and still are impacting, the Clear Lake hitch's habitat. Agricultural
production in the Clear Lake area has been important since the mid-
1800s with crops that included apples, almonds, grapes, nectarines,
peaches, pears, plums, and prunes, many of which are still grown today
(Suchanek et al. 2003, p. 1256; U.S. Department of Agriculture (USDA)
2023, entire). Much of the land surrounding Clear Lake has been
converted from forest lands to agricultural use. Large-scale
deforestation and land conversion within the watershed began in the
mid-19th century. The large-scale forest removal within the Clear Lake
watershed increased the amount of erosion occurring in the tributaries,
contributing to bank incision within the tributaries and causing
increased sediment and nutrient transport into the lake (Suchanek et
al. 2003, pp. 1247-1248). Increased erosion and bank cutting decrease
the amount of time that water is retained within the tributaries, which
affects water quantity and flow needed by the subspecies.
Agricultural development is found throughout the watershed;
however, it is most concentrated in the southwestern area of the
watershed, primarily near Kelsey and Adobe creeks (USDA 2023, entire).
The presence of agricultural production in the watershed not only has
an impact on the amount of water flowing in the tributaries to Clear
Lake, but it likely also increases the amounts of contaminants, in the
form of pesticides and fertilizers, and sediment entering the lake.
Pesticides are used for agriculture production across the region.
Pesticides not only affect the habitat but may also affect certain life
stages of the Clear Lake hitch and affect the subspecies' prey species.
The reported application of pesticides on agricultural lands in the
region has increased from 2008 to 2021. In 2008, more than 589,500
pounds of different forms of chemicals used as pesticides were applied
in Lake County (California Pesticide Information Portal (CALPIP) 2019,
unpaginated). In 2021, that amount increased to almost 741,000 pounds
(CALPIP 2021, unpaginated). Pesticides are also known to be used for
illegal cannabis crops, and it is possible that pesticides associated
with illegal grows could drain into the Clear Lake watershed, further
exacerbating declining water quality conditions. The primary concerns
of pesticide effects on Clear Lake hitch are the high toxicity. 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).
Pesticides are known to cause fish casualties, growth delays, and
swimming abnormalities, making fish more susceptible to predation
(Baker 2018, pp. 2-3).
Fertilizers that get into waterways can cause nutrient imbalances
that affect oxygen levels in the water, causing cyanobacteria blooms
and fish kills (Baker 2018, p. 6). Another concern is water diversions
associated with these illegal cultivation sites, which can block fish
passage, change flow regimes, and cause other secondary effects (Baker
2018, p. 6). However, it is unknown what effect agricultural pesticides
or pesticides associated with illegal grows are having on the aquatic
environment in Clear Lake or if pesticides are being transported
through tributaries into the lake (Suchanek et al. 2003, p. 1252).
Herbicides Are Used To Control Nonnative Aquatic Vegetation in Clear
Lake
KomeenTM (copper sulfate) and SONARTM
(fluridone) have been applied in the lake to control Hydrilla
verticillata, a highly invasive, submerged aquatic weed (Suchanek et
[[Page 4923]]
al. 2003, p. 1250; CDFW 2014, p. 32). Two herbicides were used to
target different parts of the plant; Komeen targets Hydrilla vegetative
growth, while SONAR treats the tubers (Suchanek et al. 2003, p. 1250).
SONAR is considered less toxic than Komeen because SONAR is a systemic
herbicide that is slowly absorbed in the vascular system; SONAR also
impacts similar non-target vegetation such as tule and other submerged
vegetation (Bairrington 2000, pp. 64-65; CDFW 2014, p. 32). Because
juvenile Clear Lake hitch require tule habitat for cover and prey, the
use of Komeen can indirectly impact the hitch by reducing the amount of
rearing habitat (CDFW 2014, p. 32). The use of the herbicide, SONAR, at
high concentrations may have an impact on early hitch development.
To meet the needs for agricultural production, crops require
sufficient water. Water extraction and the early drawdown of the
tributaries, in conjunction with habitat modifications throughout the
watershed, likely led to the extinction of the Clear Lake splittail
(Pogonichthys ciscoides), another stream-spawning native fish
restricted to the Clear Lake watershed (Moyle 2002, pp. 138-139; CDFW
2014, p. 27). The Clear Lake splittail spawned later in the season than
the Clear Lake hitch does, and, as the tributaries began to dry earlier
in the season, Clear Lake splittail young were not able to migrate to
the lake (Cook et al. 1966, p. 146; Moyle 2002, pp. 138-139; CDFW 2014,
p. 27).
Water extraction continues throughout the watershed today for
agricultural and domestic purposes. Both surface and ground water are
being diverted from Clear Lake tributaries (legally and illegally)
(CDFW 2014, p. 27), with the primary supply, about 60 percent, coming
from groundwater sources in an average year (County of Lake 2014,
entire; Clear Lake Hitch Summit Agenda and Presentations 2023, p. 18).
These particular diversions are legal extractions conducted under
riparian and water rights associated with land ownership. Surface water
is diverted via intake pumps, and groundwater is extracted via the
installation of shallow wells near the tributary channel where they
capture underflow (CDFW 2014, p. 27). In 2013 and 2014, water rights
users in Kelsey Creek used 85 and 134.5 million gallons of water,
respectively, as well as 31.4 million gallons in each of those years
from Adobe Creek. In addition, from 2008 to 2014, 18 private water
wells were permitted for installation along the two creeks. Although
this amount of water withdrawal is legally permissible, it is unknown
what effects this amount of water extraction is having on the hydrology
of these tributaries and the Clear Lake hitch (Big Valley 2015, p. 4).
Water extractions, both legal and illegal, are often cited as one
of the primary reasons for the reduction in the Clear Lake hitch's
population; however, although stream gauges are installed in some of
the tributaries and continue to be installed, studies on the effects
that water extraction is having on Clear Lake tributaries or the Clear
Lake hitch are still in initial stages (Clear Lake Hitch Summit Agenda
and Presentations 2023, pp. 63-72). The CDFW compared stream flow
conditions at the U.S. Geological Survey (USGS) gauge on Kelsey Creek
(USGS Station 11449500) and catch data from the early 1990s. Both 1990
and 1991 were considered dry water years with below average tributary
flow during the spring; however, the highest number of hitch were
captured during seining efforts during those years. Flow conditions
improved to average or above average for the following 3 years, but the
number of fish captured declined (CDFW 2014, p. 27). Clear Lake hitch
abundance varies from year to year due to a number of factors,
including streamflow. More data are needed to better understand the
relationship between streamflow and population numbers as well as the
effects that water extraction has on streamflow.
Historical land conversion was not only for the purposes of
agricultural crops but also for livestock. The effects of livestock on
the land can include overgrazing and the subsequent effects of
exacerbated erosion and water quality degradation. Although overgrazing
no longer appears to be occurring in the Clear Lake watershed, it was
an issue until the mid-20th century. Past overgrazing in the watershed
resulted in the loss of streamside vegetation, which decreased soil
stability and increased the rate of runoff within the creeks,
effectively reducing the amount of time water is retained within the
channel (Murphy 1948b, p. 106; Suchanek et al. 2003, p. 1257). Although
the amount of grazing pressure has decreased in the watershed, the
impacts of past practices are still contributing to the issues seen in
the watershed today.
Clear Lake hitch are affected by passage barriers that block the
ability of the fish to move up and downstream. The lack of adequate
tributary flow can act as a barrier to migrating fish, reducing the
amount of available spawning habitat, and leaving young stranded before
they can migrate to the lake. However, even when flow conditions allow
for migration, most of the tributaries in the watershed contain
physical barriers that prevent hitch passage, reducing the amount of
spawning and rearing habitat available.
The installation of dams, diversions, roadways, and crossings have
had a negative impact on migrating hitch by eliminating access to
portions of stream with suitable spawning habitat or impeding passage
during certain years until specific flow conditions (i.e., high flow)
are met (Suchanek et al. 2003, p. 1254; CDFW 2014, pp. 45, 69-70).
Using a variety of data sources, CDFW estimated that more than 92
percent of the Clear Lake hitch's historical 180 stream miles of
tributary habitat is currently blocked or has reduced access due to the
presence of barriers (CDFW 2014, pp. 24-25). In addition, since the
presence of a barrier on a spawning stream reduces the amount of
available spawning habitat, reproducing adults have to compete for
available spawning substrate. Fertilized eggs have been known to
accumulate just below a barrier to the point that they will die due to
oxygen deprivation (Robinson Rancheria 2015, p. 1).
Numerous dam structures can be found throughout the Clear Lake
watershed, including dams on Kelsey, Adobe, Highland Springs, and
Manning creeks. These dams were installed in the mid- to late 20th
century and were installed primarily for irrigation and recreation
(Suchanek et al. 2003, p. 1248). In addition, CDFW identified potential
barriers on Lyon's Creek, Scott's Creek, Seigler Canyon Creek, Clover
Creek, and Kelsey Creek (Ewing 2016a, entire). Additional barriers in
the watershed include flood and water infrastructure that are not
regularly maintained that may block hitch passage (CDFW 2014, p. 69).
Flood control projects have also contributed to increased nutrient and
sediment transport in the watershed by channelizing and armoring
tributaries with rip-rap and by reclaiming large portions of wetland
habitat that once surrounded the lake (CDFW 2014, p. 29). There are
almost 14 miles of levee structures that are maintained by the U.S.
Army Corps of Engineers (USACE) on Scotts, Middle, Clover, and Alley
creeks (USACE 2012, p. 3). The loss of wetland habitat and increased
nutrient and sediment transport further exacerbates water quality
issues within Clear Lake, likely reducing hitch survival. Further, the
loss of wetland habitat to install the flood projects reduced the
amount of rearing habitat for juvenile hitch, reducing the likelihood
of successful recruitment. The lake habitat for the Clear Lake hitch is
also affected by habitat loss, degradation, and modification through
wetland/tule habitat loss, cyanobacteria
[[Page 4924]]
(blue- green algae) blooms, and fish kills. Because of the impacts from
the historical land conversion, surrounding wetland habitats were lost,
essentially removing Clear Lake's natural filter. Over time, increasing
amounts of sediment and nutrients from the degraded tributaries were
transported directly into the lake, and nutrient inputs from
surrounding urban and agricultural development ended up in the lake.
This increase in nutrients and sediments entering Clear Lake degraded
its water quality, resulting in increased cyanobacteria blooms that
contributed to or caused periodic fish kills.
With the loss of the extensive tule expanses within the lake's
nearshore habitat, there has been an increase in the amount of
sedimentation and nutrients entering the lake (Prine et al. 1975, p.
21). Wetlands act as a filter for sediments and nutrients transported
from the tributaries into the lake and the loss of these large wetland
complexes directly surrounding the lake has had negative consequences
to Clear Lake's water quality (Richerson et al. 1994, pp. III-1, V-1,
VIII-1; Suchanek et al. 2003, p. 1255). One result from the wetland
loss and water quality impacts is blue-green algae blooms that occur in
Clear Lake from phosphorus input.
The blue-green algae, a cyanobacteria and not an actual alga, will
float to the surface of the lake during the day and can form large mats
or scums. These mats will either be broken down or re-submerged into
the lake via wind action or will deteriorate from sun exposure.
Phosphorus is found naturally in underlying sediments within the Clear
Lake watershed (Richerson et al. 1994, p. V-99), and the degradation of
tributaries have exposed those sediments, allowing for transport into
the lake during rain events. A major factor in the persistence and
formation of cyanobacteria blooms in Clear Lake relates to periods of
anoxia (deficiency of oxygen), and where phosphorus is released from
sediments (Florea et al. 2022, p. ii). Blue-green algae blooms can be
toxic to fish (Gorham 1960, p. 242; Prine et al. 1975, p. 23; Richerson
et al. 1994, p. III-9); however, it is unknown what impact they have on
the Clear Lake hitch.
Fires have occurred naturally in the Clear Lake watershed as part
of the ecological cycle; however, with Euro-American settlement in the
middle of the 19th century, widespread intentional burning occurred
throughout the watershed to clear brush or promote grass growth for
livestock grazing (Suchanek et al. 2003, pp. 1243-1245, 1246-1247).
Numerous fires have occurred in the Clear Lake area during the 20th
century, with several large ((10,000+ acres (ac), 4047 hectares (ha))
fires occurring directly in the watershed (Suchanek et al. 2003, pp.
1244, 1248). The fire seasons in California during 2017, 2018, and 2020
were some of the worst on record. The 2018 Mendocino Fire Complex, a
portion of which occurred in Lake County, was the third largest fire on
record in California (CalFire 2022a, entire). Past fire suppression
practices within the State of California have reduced the occurrence of
fire, but due to the accompanying fuel accumulation, these practices
have made fires more devastating when they do occur (Suchanek et al.
2003, p. 1247). Fire activity within the watershed results in increased
erosion and bank incision, which channelize the stream and increase
water turbidity; fire activity is likely to continue to increase within
the Clear Lake watershed (CalFire 2022b, entire). Channelization can
decrease the amount of time water is retained within the tributary
channel (Murphy 1948b, p. 106; County of Lake 1992, p. 13). A reduction
of flow in the tributaries during the spawning season can eliminate or
greatly reduce the likelihood for successful reproduction and/or
recruitment, and due to the Clear Lake hitch's very narrow range, the
effects of channelization can impact the subspecies' viability.
Summary of Habitat Loss, Degradation, And Modification
Habitat loss, degradation, and modification due to agricultural and
urban development, pesticide use, increased fire activity, and legacy
impacts from past mining activities, past deforestation, and historical
grazing practices will continue to affect the Clear Lake hitch at the
individual, population, and subspecies level into the future throughout
its range.
The Clear Lake hitch habitats that are affected include the
tributaries and lake habitat. Impacts to both habitat types will affect
the Clear Lake hitch by reducing survival and recruitment, which
reduces resiliency by decreasing the size of the overall population.
For the tributaries, the loss of consistent flow during the spawning
season is seen throughout the Clear Lake hitch's range. This influence
is affecting the hitch at the individual, population, and subspecies
level and is likely to continue into the future. The loss of consistent
tributary flow, loss of wetland/tule habitat, and reduced lake water
quality, has reduced, and will continue to reduce, population
resiliency by reducing reproductive success, early life stage survival,
and the likelihood of recruitment. Loss of resiliency may reduce the
Clear Lake hitch's overall representation and redundancy because fewer
individuals spawn in each of the tributaries and natal habitat types.
The reduction in resiliency may result in a reduction to the hitch's
overall representation and redundancy.
There are no existing regulatory mechanisms or management actions
that fully ameliorate habitat loss, degradation, and modification
within the watershed, primarily because much of the degradation
occurred in the past, although the effects are still occurring today
and will continue into the future. There are planned activities
associated with the Clear Lake watershed, the Middle Creek Flood Damage
Reduction and Ecosystem Restoration Project, that will benefit improve
water quality, increase available wetland habitat for the Clear Lake
hitch and mitigate some of the ongoing habitat loss, degradation, and
modification.
Construction of this project would greatly benefit juvenile hitch
by providing increased cover from predators and competitors, and
increased prey abundance The county's Clear Lake Shoreline Ordinance
has prohibited the destruction of tule on residential properties along
the shoreline around Clear Lake and requires full mitigation for any
tule habitat that is destroyed. This ordinance benefits the Clear Lake
hitch by providing a consistent amount of tule habitat for juveniles.
In addition, the county recently began a tule planting initiative that
informs the public about the importance of tule habitat and how to
plant tule (Lake County 2024a, entire).
Predation
Non-native fish introduced into Clear Lake for recreational or
biological control purposes are known to prey upon the Clear Lake hitch
and all introduced piscivorous (fish-eating) fish species in Clear Lake
are potential predators of Clear Lake hitch. Clear Lake hitch have been
found in the stomach contents of nonnative fish species in the Clear
Lake watershed including largemouth bass (Micropterus nigricans) and
channel catfish (Ictalurus punctatus; Macedo 1994, p. 5; Moyle et al.
1995, pp. 154 -155; Moyle et al. 2014, p. 10). Mississippi silversides
(Menidia audens) are also known to prey on larval fish, so it is likely
some predation of Clear Lake hitch larvae by silversides is occurring
in Clear Lake (Bennett and Moyle 1996, pp. 526, 529; Moyle et al. 2014,
p. 9-10). The nonnative species predation will
[[Page 4925]]
continue to affect the Clear Lake hitch at the individual, population,
and subspecies level into the future throughout its range. Nonnative
species predation pressure within Clear Lake impacts the hitch by
reducing survival and recruitment, which reduces resiliency by
decreasing the size of the overall population.
Predation pressure within the tributaries to Clear Lake impacts the
hitch by reducing survival, reproduction, and recruitment, which
further reduces resiliency by decreasing the size of the spawning
population in any given year and by reducing the overall population
altogether. This loss of resiliency may reduce the hitch's overall
representation and redundancy because it results in fewer individuals
spawning in each of the tributaries and natal habitat types.
Competition
Competition from other nonnative aquatic species affects the Clear
Lake hitch by reducing the available resources for breeding, feeding,
and sheltering. For example, largemouth bass (Micropterus nigricans)
feed on insects and zooplankton, directly competing with both juvenile
and adult hitch for food resources (Moyle and Holzhauser 1978, pp. 577-
578, 581). Threadfin shad (Dorosoma petenense) and Mississippi
silversides also compete with the Clear Lake hitch because they depend
on the same aquatic prey base (Anderson et al. 1986, entire;
Bairrington 2000, p. 33; CDFW 2014, p. 35). During years when
silverside or threadfin shad abundances are especially high, they could
reduce or deplete prey resources on which the hitch depends. A
comparison of hitch trend data and abundances of silversides and
threadfin shad suggests there may be a correlation between their
abundances (CDFW 2014, p. 35), but more detailed studies need to be
completed. There are currently no regulatory mechanisms that address
competition by non-native species.
Mercury Mining Contaminants
Historically, small-scale commercial mining operations along the
shores of Clear Lake occurred in 1864 and 1865. Originally, the mining
included borax and sulfur (Suchanek et al. 2003, p. 1253). Large-scale
commercial sulfur extraction along the eastern shore of Clear Lake
began in 1865, when the Sulphur Bank Mercury Mine was established. The
sulfur mining operation switched over to mercury mining in 1873, after
mercury sulfide deposits were found beneath their sulfur source. Early
extraction methods were not as destructive; however, in 1927, the mine
began to implement open- pit mining at a large-scale level and would
bulldoze any waste products into the lake (Richerson et al. 2008, p.
A259). The company continued to mine sporadically throughout the 1950s
until the Sulphur Bank Mercury Mine was officially closed in 1957,
although waste continued to contaminate the lake well into the 1990s
(Suchanek et al. 2008, p. A153).
The highest concentrations of mercury were found in the Oaks Arm
area, near the southeastern area of the lake, which is where the
Sulphur Bank Mercury Mine is located; however, elevated mercury levels
have also been detected lake-wide (Richerson et al. 2008, p. A271). The
use of heavy ground-moving equipment associated with the open-pit
mining also likely contributed to the algal blooms seen in the lake;
this equipment can excavate and disturb large swaths of sediments,
which increase nutrient runoff (Richerson et al. 2008, p. A260).
Mercury and other mining-associated contaminants have entered the
lake via erosion of waste piles, purposeful dumping/bulldozing of mine
waste, atmospheric deposition, and subsurface drainage (Richerson et
al. 2008, p. A275). Since 1992, the Environmental Protection Agency
(EPA) has implemented numerous remediation projects to address the
continued mercury contamination originating from the Sulphur Bank
Mercury Mine. The remediation projects include the removal of waste
rock piles that erode and discharge mercury, removal of contaminated
soil from residential areas, installation of diversions to prevent
contaminated water and sediments from entering Clear Lake, closure of
three abandoned geothermal wells, capping of mine waste used to build
an old road, and installation of two test sediment covers to contain
mercury- contaminated sediment within Clear Lake (Richerson et al.
2008, pp. A265, A275; EPA 2019, entire).
The Sulphur Bank Mercury Mine became an EPA Superfund Site in 1990,
due to the elevated mercury levels found in Clear Lake's larger
piscivorous fish (Curtis 1977, p. 1; Suchanek et al. 2003, p. 1253;
Thompson et al. 2013, p. 19). Elevated levels of mercury in fish can
significantly impair reproductive success; however, effects can vary
based on a multitude of factors, including species and life stage, and
there are no specific studies for the Clear Lake hitch (Crump and
Trudeau 2008, pp. 902, 904; CDFW 2014, pp. 32-33). Mercury
concentrations found in developed hitch caught in Clear Lake in 2019
and 2020 averaged 0.14 milligrams per kilogram (mg/kg) (Pierce et al.
2022, entire), which exceed the Regional Water Quality Control Board's
proposed target of 0.09 mg/kg for fish in trophic level 3, which
includes the Clear Lake hitch (CEPA 2008, p. 1). Although these levels
may exceed the Regional Water Quality Control Board's target, the best
available science does not provide the lethal concentration of mercury
specific for Clear Lake hitch or levels that may cause acute or chronic
health effects to the Clear Lake hitch, or whether they are currently
exposed to those levels in Clear Lake. The threat of mercury mining
contaminants impacts the Clear Lake population and has not affected the
Thurston Lake population.
Climate Change
Climate change affects the Clear Lake hitch and its habitat due to
shifts in normal weather patterns. Changes in temperature and
precipitation regimes can affect water quality and quantity for the
subspecies and can exacerbate other effects, such as increased drought
and fire frequency. Annual average air temperatures in California have
increased by 1.5 [deg]F (0.83 [deg]C) since the beginning of the 20th
century (Bales 2013, p. 2).
Temperatures are expected to continue to increase in California's
North Coast Region, which includes Lake County (Grantham 2018, entire).
Drought conditions within the Clear Lake watershed can have detrimental
effects on the Clear Lake hitch by reducing the amount of flow within
the tributaries over the spawning season, reducing water quality in the
lake, and possibly reducing emergent vegetation growth in the lake. In
1946 and 1947, there was almost a complete lack of spawning runs due to
the lack of water flow in the tributaries (Murphy 1948b, p. 105).
However, the hitch's ability to spawn along the lake shore provides an
alternative to tributary spawning for at least a small proportion of
the population.
More arid conditions can impact the Clear Lake hitch by reducing
the amount of water that enters, and the time period that water is
retained within, the tributaries and wetland habitats that the hitch
requires for spawning and rearing. Increases in aridity also reduce
wetland/emergent vegetation growth, which the hitch requires for
rearing and for cover from predators. All of these factors can impact
the reproductive success and recruitment of the hitch; these factors
could also reduce the hitch's survival if flows drop too drastically in
the tributaries and wetland habitats, or if
[[Page 4926]]
hitch are subject to increased predation due to a reduction in cover
from aquatic vegetation.
A reduction of flow in the tributaries during the spawning season
can eliminate or greatly reduce the likelihood for successful
reproduction and/or recruitment, and due to the Clear Lake hitch's very
narrow range, the effects of drought will impact the entire subspecies.
The ability to spawn along the shore provides for some redundancy
within each population, but it is unknown whether shore spawning would
be able to support a viable population in the lakes over the long term.
Having a longer lifespan (4 to 6+ years) is likely an adaptation to
variable environmental conditions, but prolonged droughts can have
devastating effects on the overall population, especially in
conjunction with other factors that are currently acting on the Clear
Lake hitch.
There have been numerous efforts over the last 10 years to save
Clear Lake hitch that become stranded in pools within the tributaries
when the tributaries began to rapidly dry up. In March 2014, 197
individuals were rescued from two pools within Adobe Creek, and the
surviving fish were released into Kelsey Creek (Ewing 2014a, entire). A
few months later, in June 2014, more than 1,400 hitch were rescued from
Cooper Creek and 389 hitch were rescued from Adobe Creek when the flow
within those creeks began to rapidly drop. The surviving individuals
from both rescues were released into Rodman Slough and at the Konocti
Vista Casino boat ramp, respectively (Ewing 2014e, pp. 3, 6).
Unfortunately, during visual spawning surveys that same year,
approximately 300 adult hitch were found dead in a portion of Adobe
Creek that had dried (Ewing 2014c, p. 7).
During the spring of 2018, numerous young of year were stranded in
a pool within Cole Creek when the water flow began to rapidly drop. The
creek no longer had continuous flow into the lake, and the small pool
where the fish were stranded would have eventually dried, killing all
of the 3,100+ young fish. Fortunately, members of Robinson Rancheria
and CDFW were able to rescue the fish and transport them for release at
Clear Lake State Park, which is located where Cole Creek enters the
lake (Ewing 2018a, p. 1). In April 2022, 268 individuals were rescued
from two pools within Adobe Creek and transported to Konocti Casino
Harbor on Clear Lake where they were released (Ewing 2022a, p. 1). On
August 8, 2022, 295 hitch were rescued from a pool off of Cooper Creek;
the rescued hitch were translocated to Upper Blue Lake for release
(Santana 2022, p. 2). The effects of climate change will continue to
affect both Clear Lake hitch populations, Clear Lake and Thurston Lake.
Regulatory mechanisms and management actions that are or could
potentially provide some protection from the effects of climate change
include the California Global Warming Solutions Act. This Act addresses
climate change by reducing greenhouse gas emissions within California.
There are no regulatory mechanisms or management actions that fully
address the effects of the climate change.
Synergistic Effects
Multiple influencing factors can act on a species or its habitat at
the same time, which can result in impacts that are not accounted for
when factors are analyzed separately. Factors that appear minor when
considered alone may have greater impacts on individuals, populations,
or habitat when analyzed in combination with other factors.
The Clear Lake hitch evolved in Lake County, California, which has
always had a highly variable climate with natural periodic droughts.
However, the degradation and loss of water retention within their
spawning streams and the loss of large stretches of suitable spawning
habitat due to various instream barriers has likely reduced
reproductive success and recruitment. During drought conditions this
can reduce or eliminate all tributary- based spawning in a given year.
If drought conditions persist over multiple years, stream- based
reproduction can also be reduced or eliminated for multiple years.
Furthermore, climate change projections show the Clear Lake area will
experience more varied precipitation and higher air temperatures during
the spring, which could result in even less water flow being retained
within the tributary streams during the hitch's spawning season (Pierce
et al. 2013, pp. 842, 844, 848-850. Although the hitch has the ability
to spawn within the lake, it is unknown whether that method of
reproduction would be able to sustain a viable population of hitch in
Clear Lake.
Additionally, groundwater extraction for agriculture and other uses
likely affects the Clear Lake hitch and its habitat, particularly
combined with other chronic threats, such as habitat loss, degradation,
and modification along with climate change that are synergistically
acting on the subspecies. Water extraction in the summer is likely to
lower the water level in pool habitat that acts as refugia for the
subspecies in disconnected tributaries until those tributaries become
reconnected by spring rains. It is the loss of this pool habitat that
affects the Clear Lake hitch resiliency.
The combination of wetland habitat loss and drought can increase
predation pressure and competition. Past habitat loss has left only a
small proportion of wetland habitat surrounding Clear Lake and drought
conditions can reduce the amount of emergent vegetation growth within
those remaining wetland habitats. This reduction in emergent vegetative
growth reduces the amount of cover the hitch uses to hide from
predators, increasing predation pressure. It can also increase
competition as more fish concentrate into this limited habitat type.
Conservation Efforts and Regulatory Mechanisms
The Clear Lake hitch is protected through existing regulatory
mechanisms and management actions that result in conservation of the
subspecies or its habitat or both. Additional actions from Tribes and
other interested groups also provide a benefit to the subspecies.
Below, we present some of the ongoing efforts that provide conservation
benefits to the Clear Lake hitch or its habitat or both from Federal,
State, Tribal, and local regulations and management plans.
I. Federal
U.S. Forest Service (USFS)
The Clear Lake hitch has been designated a USFS sensitive species.
Species identified as sensitive by the USFS are species in which
population viability is a concern, as evidenced by significant current
or predicted downward trends in population numbers or density, or
significant current or predicted downward trends in habitat capability
that would reduce a species' existing distribution, or both. The
designation of sensitive species ensures USFS: assists States,
including California, in achieving their goals for conservation of
endemic species; as part of the process under the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), reviews
programs and activities, through a biological evaluation, to determine
their potential effect on sensitive species; avoids or minimizes
impacts to species whose viability has been identified as a concern; if
impacts cannot be avoided, analyzes the significance of potential
adverse effects on the population or its habitat within the area of
concern and on the species as a whole; establishes management
objectives in cooperation with the States when projects on
[[Page 4927]]
National Forest System lands may have a significant effect on sensitive
species population numbers or distributions; and establishes objectives
for Federal candidate species, in cooperation with the Service or
National Marine Fisheries Service, and the States. Most of the Clear
Lake hitch's range is on private land and only the headwaters of a few
tributaries to the east of Clear Lake fall within USFS lands.
II. State
California Endangered Species Act (CESA)
On August 6, 2014, the CFGC determined that the Clear Lake hitch
warranted listing as a threatened species under the CESA due to the
present or threatened modification or destruction of the subspecies'
habitat, predation on and competition with the hitch, and the
anticipated impacts of climate change (CDFW 2014, pp. 1-2). Section
2067 of the California Fish and Game Code defines a ``threatened
species'' as a native species or subspecies of bird, mammal, fish,
amphibian, reptile, or plant that, although not presently threatened
with extinction, is likely to become an endangered species in the
foreseeable future in the absence of the special protection and
management efforts required by the State. As a threatened species under
the CESA, the take of Clear Lake hitch individuals is prohibited unless
the take is authorized by a State-issued permit.
However, CESA regulations only apply to the take of individuals
(i.e., they do not apply to the destruction or modification of
habitat). It should be noted that California's definition of take (see
section 86 of the California Fish and Game Code) is not the same as the
Act's definition of take (16 U.S.C. 1532(19)).
California Environmental Quality Act (CEQA) of 1970
The CEQA does not regulate land use but requires all local and
State agencies in California to avoid or minimize environmental damage,
where feasible, during the course of proposed projects. The CEQA
provides protection for species that are State-listed or federally
listed as endangered, threatened, or rare. Compliance with the CEQA may
be required for watershed restoration work and any restoration work
that requires a ``lake or streambed alteration agreement'' (also known
as a ``1600 agreement''; see sections 1600-1616 of the California Game
and Fish Code).
Sustainable Groundwater Management Act (SGMA)
The SGMA is a California State law that provides a framework for
sustainable groundwater management in California. Under section
10933(b) of the California Water Code, groundwater basins throughout
the State have been classified into four categories of prioritization
(high, medium, low, very low). Phase 1 of the categorization process
was finalized in January 2019, and 458 basins were prioritized during
that phase. Fifty-seven basins were categorized under phase 2, which
was finalized on December 17, 2019 (DWR 2020, p. AD-3). The SGMA
requires water agencies and governments of high- priority and medium-
priority basins to reduce overdraft and bring groundwater basins into
balance. The State of California ensures the SGMA goals are met as
planned.
Several groundwater basins in the Clear Lake watershed were
prioritized during the phase 1 prioritization. The Big Valley basin to
the southwest of Clear Lake received a medium prioritization, whereas
the other eight basins in the watershed (Scotts Valley, Upper Lake
Valley, Middle Creek, Long Valley, High Valley, Clear Lake Cache
Formation, Burns Valley, and Lower Lake Valley) were given a low
priority. The high- priority and medium-priority basins will be managed
by a group of local agencies, referred to as ``groundwater
sustainability agencies,'' and they will be tasked with reaching
sustainability in their basin within 20 years of implementing their
groundwater sustainability plans. Groundwater sustainability agencies
have been formed for the Big Valley and Scotts Valley basins, and a
groundwater sustainability plan was developed for the Big Valley basin
and published in January 2022 (DWR 2019a, entire; DWR 2019b, entire;
DWR 2019c, entire; DWR 2022, entire). Reducing overdraft from
groundwater pumping in the Big Valley basin could improve flow
conditions in Thompson Creek, Adobe Creek, Kelsey Creek, Cole Creek,
McGaugh Slough, and Manning Creek and could provide sufficient water
quantity for the Clear Lake hitch to traverse the tributaries during
their spawning season.
III. Local
Clear Lake Integrated Watershed Management Plan (CLIWMP)
The local resource conservation districts developed CLIWMP to
document the historical and current conditions of the Clear Lake
watershed and any management actions that have been, or are currently
being, implemented. Actions to enhance and/or protect the watershed are
then identified using that background information and timeframes for
each action are described. The CLIWMP describes specific implementation
actions needed to create an environmentally and economically healthy
watershed, both for the benefit of the existing local community and for
future generations (County of Lake et al. 2010a, entire).
Implementation of the actions described in the CLIWMP would benefit the
Clear Lake hitch by increasing the amount of wetland habitat used for
rearing, improving fish passage within the tributary streams, and
restoring degraded tributary stream and lake habitats. In addition to
the CLIWMP, the local conservation districts also developed watershed
assessments for Scotts, Middle, and Kelsey creeks. The purpose of those
assessments is similar to the CLIWMP; they document the historical and
current conditions of those watersheds and any management actions
implemented. The assessments will aid in educating watershed users and
landowners on the condition of that particular watershed, the
management and restoration actions that need to be implemented to
improve conditions, and how the conditions of those particular
watersheds impact the condition of Clear Lake (County of Lake et al.
2010b, entire; County of Lake et al. 2010c, entire; County of Lake et
al. 2010d, entire). Aggregate Resources Management Plan
Lake County developed an Aggregate Resources Management Plan
(County of Lake 1992, entire) to address concerns about the impacts of
gravel mining on the watershed. The plan describes the policies
regarding mining in specific areas, identifies areas deemed as suitable
for future mining projects, and informs the public about mining in Lake
County. The plan calls for a moratorium on mining in certain creeks and
limits mining activities to certain areas (County of Lake 1992, pp. 83-
86). The regulation of gravel mining in the county has reduced the rate
of erosion in the tributaries and increased the amount of riparian
habitat along the stream channels, where the Clear Lake hitch occurs.
Although instream sources of gravel are no longer the primary source of
aggregate in Lake County because gravel is now acquired from other
sources, illegal gravel mining or extraction has been known to occur in
the watershed (CEPA 2008, pp. 8, 89; B. Ewing in litt. 2020).
[[Page 4928]]
Middle Creek Flood Damage Reduction and Ecosystem Restoration Project
The Middle Creek Flood Damage Reduction and Ecosystem Restoration
Project (Middle Creek Project) is both a flood risk reduction project
for urban and agricultural areas along the northern end of Clear Lake
and an ecosystem restoration project that will improve degraded wetland
habitat and water quality in Clear Lake. The Middle Creek Project area
was once approximately 1,400 ac (567 ha) of wetland habitat that was
lost in the early 1900s through the construction of levees and
conversion to agricultural use.
Because these levees are no longer functional and there is an
urgent need to restore surrounding wetland habitats to improve the lake
and the watershed, Lake County requested USACE assistance to evaluate
the project in 1995. The Middle Creek Project consists of acquiring
reclaimed land, breaching existing levees to flood historical wetland
and floodplain areas, and reconnecting Scotts and Middle creeks. Final
NEPA and CEQA review was completed in 2003 and 2004, respectively, and
the Middle Creek Project was authorized under the Water Resources
Development Act of 2007 (33 U.S.C. 2201 et seq.). Federal funding for
the Middle Creek Project has not yet been appropriated to start project
design; however, funding for land acquisition has been acquired (USACE
2012, pp. 1-2; USACE 2023, entire).
The Middle Creek Project will benefit the Clear Lake watershed by
reducing the amount of sediment and nutrients entering Clear Lake,
improving overall water quality. It will also increase the existing
amount of wetland habitat within the Clear Lake watershed by
approximately 79 percent (USACE 2012, p. 3). If the Middle Creek
Project were to be implemented, it would benefit adult hitch by
improving the water quality of Clear Lake, which would likely reduce
the incidence of large fish kills. The Middle Creek Project would also
greatly benefit juvenile hitch by increasing the amount of wetland
habitat surrounding the lake, providing increased cover from predators
and competitors, and increased prey abundance.
Clear Lake Shoreline Ordinance
The destruction of woody species and tule on residential properties
along the shoreline around Clear Lake is prohibited under section 23-15
of the Clear Lake Shoreline Ordinance. These types of vegetation can be
managed via mowing, pruning, or trimming, but those activities cannot
result in the death of the plant. In addition, the ordinance applies a
no-net-loss program for commercial, resort, or public properties that
require mitigation for any areas of vegetation cleared by providing
replacement plantings (County of Lake et al. 2010a, pp. ES-16, 3-10;
CDFW 2014, p. 42). The measures associated with this ordinance benefit
the Clear Lake hitch by providing a consistent amount of tule habitat
for juveniles.
Clear Lake Hitch Conservation Strategy
A group including local Tribes, local government, State agencies,
and Federal agencies have been working on the development of a
conservation strategy for the Clear Lake hitch. The strategy, which is
still in draft form, documents the past and current status of the
subspecies, describes the negative influences that have resulted in the
subspecies' current status, and identifies the actions that will
address those negative influences in order to maintain a viable
population of Clear Lake hitch throughout the subspecies' range. This
conservation strategy will provide benefits to the subspecies through
public outreach regarding Clear Lake hitch conservation; it will also
direct funds to implement actions or projects that will specifically
benefit the hitch.
Clear Lake Hitch Task Force
In August 2022, Tribal leaders and members of the Tribal
Environmental Protection Agencies representing the Big Valley Rancheria
of Pomo Indians, Elem Indian Colony Pomo Tribe, Robinson Rancheria Band
of Pomo Indians, and the Habematolel Pomo of Upper Lake went before the
CFGC to express their concern for the status of the Clear Lake hitch.
To address these concerns and focus attention on the subspecies, the
Clear Lake Hitch Task Force (Task Force) was formed. The Task Force had
its first meeting on September 14, 2022, and consisted of Tribal and
CDFW representatives.
Since 2022, the Task Force has expanded to include the California
Department of Water Resources, State Water Resources Control Board,
Central Valley Regional Water Board, Lake County Water Resources
Department, Fish and Game Commission, California Natural Resources
Agency, Service, USGS, California Conservation Corps, Bureau of Land
Management (BLM), USACE, and USFS. The Task Force's mission involves
collaborative planning for long-term responses to the decline in the
Clear Lake hitch population, coordinating projects, identifying funding
sources, and facilitating information exchange among agencies. The Task
Force meets monthly and has held three summits to help relay
information and coordinate projects between different agencies.
IV. Miscellaneous
Lake County, the California Department of Transportation, USFS,
State Water Resources Control Board, and BLM have undertaken various
actions to prevent or reduce nutrients and contaminants from entering
Clear Lake, or to track the amount of water being used throughout the
watershed (West Lake Resource Conservation District, undated, entire;
CDFW 2014, p. 41). These actions include the Eightmile Valley Sediment
Reduction and Habitat Enhancement Project, for which BLM and the Scotts
Valley Band of Pomo Indians received a grant (CDFW 2014, p. 41). CDFW
has two conceptual area protection plans (CAPPs) that cover different
areas of the Clear Lake watershed. A CAPP allows different
organizations and agencies to apply for land acquisition funding
through the Wildlife Conservation Board. Both plans focus on the
protection of wetland and riparian habitats, which would benefit the
Clear Lake hitch during its early life stages (CDFW 2014, p. 42).
Lastly, the State Water Resources Control Board issued draft emergency
information order regulations for the Clear Lake watershed in September
2023. These regulations were adopted by the Water Resources Control
Board on December 6, 2023. These regulations allow the Water Resources
Control Board to gather information on water usage, particularly
groundwater pumping, in the Clear Lake watershed and learn how, if at
all, it influences surface tributary flow (State Water Resource Control
Board 2023, entire).
Lastly, the CDFW has begun to address some of the fish passage
barriers in the Clear Lake hitch's spawning tributaries by installing
fish ladders. The reconstruction of one project included installation
of holding pools for the fish to rest as they move upstream and breaks
in the ladder to help slow the rate of water flow (Ewing 2017c,
entire).
Cumulative Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the subspecies. To assess the current and future condition
of the subspecies, we evaluate the effects of all the relevant factors
that may be influencing the
[[Page 4929]]
subspecies, including threats and conservation efforts. Because the SSA
framework considers not just the presence of the factors, but to what
degree they collectively influence risk to the entire subspecies, our
assessment integrates the cumulative effects of the factors and
replaces a standalone cumulative-effects analysis.
Current Condition
In order to evaluate the current condition of the Clear Lake hitch,
we describe the resiliency of each population along with the redundancy
and representation of the subspecies. We considered demographic factors
and habitat elements to evaluate the population-level resiliency. We
divided the population in Clear Lake to ensure a more focused analysis
regarding how different areas of the lake contribute to the subspecies'
survival.
We established that there are two separate populations of Clear
Lake hitch within the Clear Lake watershed: one is found in Clear Lake
and its associated tributaries and small lakes (i.e., Blue Lakes and
Tule Lake), and the other is in Thurston Lake and its associated
tributary. Because Thurston Lake is not currently hydrologically
connected to Clear Lake and possibly never was, we do not anticipate it
to be connected in the future. The Clear Lake and Thurston Lake
populations were further delineated into units to capture the aquatic
habitat features at a local, sub-watershed level. We then grouped some
of the smaller delineated units into five ``analysis units'' using
otolith (calcium carbonate structure found in the inner ear of the
Clear Lake hitch) strontium signatures that indicated natal origins can
be assigned to one of five strontium isotope groups (SIGs) throughout
the watershed (Feyrer et al. 2019a, entire). The use of adult otoliths
for the natal habitat strontium groupings indicates that those areas
associated with the SIGs are contributing to reproduction and
recruitment. The terms ``analysis unit'' and ``SIG'' may be used
interchangeably for this analysis.
We delineated six analysis units across the subspecies' range.
Thurston Lake and Thurston Creek are described as a single analysis
unit. The Clear Lake population includes five analysis units described
according to the general location: Cole Creek; Kelsey Creek; Adobe
Creek and Clear Lake; Rodman Slough; and Middle, Clover, and Siegler
Canyon creeks (SIGs 1 through 5, respectively; Service 2024, p. 34).
Additional description of the populations and analysis units can be
found in the SSA report (Service 2024, pp. 26-28); see table 2, below,
for a list of the AUs.
In order to determine resiliency, we assessed the conditions at the
population and analysis unit levels. We used demographic and habitat
factors associated with each population. The demographic factors
include reproduction, recruitment, and survival at both the adult and
juvenile life stages. The habitat factors we used include water
quantity (tributaries) and quality (lake) and wetland/tule habitat
condition.
Influencing those factors is the quality and accessibility of Clear
Lake hitch habitat, which determines how well the spawning areas allow
for successful reproduction, whether the nearshore nursery areas allow
for young-of-year survival and subsequent recruitment, and whether
individuals can move between tributary spawning habitats and the lake.
Within the tributaries, water quantity and quality are important
factors influencing survival at all life stages, reproductive success,
and recruitment, and water quantity and quality are important for
connectivity between the tributaries and lakes. Environmental
stochastic events that have the potential to affect the subspecies
include severe storms, drought, contaminant exposure, and the
modification of habitat via natural (i.e., fire, drought, etc.) and
anthropogenic (i.e., conversion to agriculture, vegetation management)
means. Additional information regarding the resiliency factors can be
found in the SSA report (Service 2024, pp. 28-34).
We describe the population and analysis unit resiliency conditions
using categories of high, medium, and low (with transitional stages).
The methodology for determining the condition category includes
assessment of the demographic and habitat factors within each analysis
unit and within each population (Service 2024, p. 79). An overall high
condition for a population is an indicator of high probability of
population persistence. Populations in high condition have: accessible
tributaries available throughout the spawning season, different natal
habitats available for reproduction, individuals that are reproducing
successfully and populations that are actively recruiting, and a
sufficient amount and quality of spawning and rearing habitat to allow
for varying population densities. An overall moderate condition is an
indicator that probability of persistence for that population may be
compromised by the lack and/or degradation of one or more of the
subspecies' needs, and a low overall condition indicates low
probability of population persistence due to the lack and/or
degradation of multiple of the subspecies' needs. An extirpated
condition indicates no probability of population persistence due to
lack and/or degradation of all of the subspecies' needs. Conditions of
low/extirpated, moderate/low, and high/moderate are transitionary
between each of the qualitative categories.
In order to determine the current population estimates and
distribution, we used recent data (2015-2023) from surveys conducted on
spawning in the tributaries, along the lake shore, and throughout Clear
Lake. That data also informed the resiliency analysis for each
population and analysis unit. The demographic and habitat parameters
used in the resiliency analysis for each population and analysis unit
is provided in table 1, below (Service 2024, p. 67).
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
----------------------------------------------------------------------------------------------------------------
Demographic Demographic Habitat element-- Habitat element--
Condition category factor-- factor-- tributary water lake water
reproduction recruitment quantity quality
----------------------------------------------------------------------------------------------------------------
High........................... Overall total from Overall total from Water is retained Lake water is
reproduction recruitment within the well oxygenated
analysis is high. analysis is high. tributaries and minimally
throughout the contaminated.
spawning season.
[[Page 4930]]
Moderate....................... Overall total from Overall total from Water is retained Lake water is
reproduction recruitment within the oxygenated most
analysis is analysis is tributaries of the time,
moderate. moderate. throughout a large hypoxic
portion of the conditions do
spawning season. occur
periodically.
Some
contaminants are
present, but not
at lethal
levels.
Low............................ Overall total from Overall total from Water is retained Lake water is not
reproduction recruitment within the well oxygenated
analysis is low. analysis is low. tributaries and hypoxic
throughout a small conditions occur
portion of the frequently.
spawning season. Contaminants are
present,
sometimes at
lethal levels.
0 (Zero)....................... No reproduction... No recruitment.... Water is not Lake water
retained within the quality is
tributaries during uninhabitable.
any portion of the
spawning season.
----------------------------------------------------------------------------------------------------------------
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)
----------------------------------------------------------------------------------------------------------------
Future condition Future condition
Population Analysis unit Current condition scenario 1 scenario 2
----------------------------------------------------------------------------------------------------------------
Clear Lake...................... .................. Moderate.......... Moderate/Low...... Low.
Cole Creek (SIG 1) Low............... Low............... Low.
Kelsey Creek (SIG Moderate.......... Moderate/Low...... Low.
2).
Clear Lake, Adobe Moderate.......... Moderate/Low...... Low.
Creek (SIG 3).
-------------------------------------------------------------------------------
Rodman Slough (SIG Moderate.......... Moderate.......... Moderate/Low.
4).
Middle Creek, Low............... Low............... Low.
Clover Creek,
Seigler Canyon
Creek (SIG 5).
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
[[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
[[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.
[[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
[[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
[[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
[[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
[[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
[[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
[[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
[[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
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Hitch, Clear Lake'' in
alphabetical order under FISHES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
[[Page 4941]]
* * * * * * *
Hitch, Clear Lake............... Lavinia exilicauda Wherever found.... T [Federal Register
chi. citation when
published as a final
rule]; 50 CFR
17.44(mm).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (mm) to read as follows:
Sec. 17.44 Species-specific rules--fishes.
* * * * *
(mm) Clear Lake hitch (Lavinia exilicauda chi).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Clear Lake hitch. Except as
provided under paragraph (mm)(2) of this section and Sec. Sec. 17.4
and 17.5, it is unlawful for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit, or cause to be committed any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Activities that remove toxicants, other chemicals, and related
water diversion infrastructure from illegal cannabis cultivation sites
in the Clear Lake watershed.
(B) 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. This exception
does not include the use of heavy equipment, such as bulldozers,
backhoes, or tractors, for fuels and fire management activities.
(C) Habitat management and restoration efforts that are
specifically designed to provide for the conservation of the Clear Lake
hitch's habitat needs and include measures that minimize impacts to the
Clear Lake hitch 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.
(D) Removal or eradication of nonnative fish species, including,
but not limited to, carp and goldfish, for the conservation benefit of
the Clear Lake hitch. This exception does not include actions that
disturb habitat or involve the use of chemicals.
(vi) Purposefully take associated with:
(A) Collection of Clear Lake hitch individuals by members of
federally recognized Tribes for ceremonial use or traditional Tribal
consumption if the collection is conducted pursuant to a Tribal
conservation plan.
(B) Activities associated with rescuing Clear Lake hitch
individuals that are at risk of stranding in drying or warming pools
and relocating them into connected waterways.
* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-31756 Filed 1-15-25; 8:45 am]
BILLING CODE 4333-15-P