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Proposed Rule2024-17237

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

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Published

August 13, 2024

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

We, the U.S. Fish and Wildlife Service (Service), propose to list the Santa Ana speckled dace (Rhinichthys gabrielino), a fish species native to 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 Santa Ana speckled dace. After a review of the best available scientific and commercial information, we find that listing the species is warranted. Accordingly, we propose to list the Santa Ana speckled dace 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 this species to the List of Endangered and Threatened Wildlife and extend the Act's protections to the species. Due to the current lack of data sufficient to perform required analyses, we conclude that the designation of critical habitat for the species is not determinable at this time.

Full Text

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[Federal Register Volume 89, Number 156 (Tuesday, August 13, 2024)]
[Proposed Rules]
[Pages 65816-65835]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17237]

[[Page 65816]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2024-0018; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BH39

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Santa Ana speckled dace (Rhinichthys gabrielino), a fish
species native to 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 Santa Ana
speckled dace. After a review of the best available scientific and
commercial information, we find that listing the species is warranted.
Accordingly, we propose to list the Santa Ana speckled dace 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 this species to the List of Endangered and Threatened
Wildlife and extend the Act's protections to the species. Due to the
current lack of data sufficient to perform required analyses, we
conclude that the designation of critical habitat for the species is
not determinable at this time.

DATES: We will accept comments received or postmarked on or before
October 15, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 27, 2024.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R8-ES-2024-0018,
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-2024-0018, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R8-ES-2024-0018.

FOR FURTHER INFORMATION CONTACT: Scott Sobiech, Field Supervisor,
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2177
Salk Avenue, Carlsbad CA 92008; telephone 760-431-9440. 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-2024-0018 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), a species warrants listing if it meets the definition of an
endangered species (in danger of extinction throughout all or a
significant portion of its range) or a threatened species (likely to
become an 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 Santa Ana speckled dace
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 Santa Ana speckled
dace as a threatened species with protective regulations 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 Santa Ana speckled
dace is threatened due to the following threats: habitat loss (due to
urban development), habitat degradation (roadways, recreational
activities, mining activities, and hydrological modifications and
diversions), habitat fragmentation, increased fire frequency and
intensity, climate change effects (e.g., warmer air temperatures, more
intense precipitation events including drought and flooding), nonnative
species (invasive aquatic species predation and competition), and small
population effects (e.g., inbreeding depression and loss of genetic
diversity).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable,
concurrently with listing designate critical habitat for the species.
We have not yet been able to obtain the necessary economic information
needed to develop a proposed critical habitat designation for the Santa
Ana speckled dace, although we are in the process of obtaining this
information. At this time, we find that designation of critical habitat
for the Santa Ana speckled dace is not determinable. When critical
habitat is not determinable, the Act allows the Service an additional
year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).

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:

[[Page 65817]]

(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species; and
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) 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 Santa Ana speckled
dace. In particular, we seek information concerning the extent to which
we should include any of the section 9 prohibitions in the 4(d) rule or
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is endangered
instead of threatened, or we may conclude that the species 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 protective regulations
under section 4(d) of the Act 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 the species. 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 species. In our
final rule, we will clearly explain our rationale and the basis for our
final decision, including why we made changes, if any, that differ from
this proposal.

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

On May 11, 2020, we received a petition from the Center for
Biological Diversity requesting that the Santa Ana speckled dace be
listed as an endangered or threatened species and critical habitat be
designated for this species under the Act. The petition clearly
identified itself as such and included the requisite identification
information for the petitioner, required at 50 CFR 424.14(c). On June
17, 2021, we published in the Federal Register (86 FR 32241) a 90-day
finding that the petition presented substantial scientific or
commercial information indicating the petitioned action may be
warranted.

Peer Review

A species status assessment (SSA) team prepared an SSA report for
the Santa Ana speckled dace (Service 2023a, entire). The SSA team was
composed of Service biologists, in consultation with other species
experts. The SSA report represents a compilation of the best scientific
and commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act, we solicited independent
scientific review of the information contained in the Santa Ana
speckled dace SSA report. We sent the SSA report to five independent
peer reviewers and received one response. Results of this structured
peer review process can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 one
peer reviewer. We reviewed all comments for substantive issues and new
information regarding the material contained in the

[[Page 65818]]

SSA report. The reviewer generally provided additional references,
clarifications, and suggestions for the SSA report. We updated the SSA
report based on the information we received and worked with researchers
to update the current and future condition analyses. The substantive
peer reviewer comment is addressed in the following summary, and the
information provided was incorporated into the SSA report as
appropriate (Service 2023a, entire).
Comment 1: The reviewer commented on debris flows and provided
clarifying language when describing the cause, stating debris flows are
caused by intense rainfall, not by existing surface water already
flowing in a channel. The reviewer also clarified how fire increases
the magnitude of debris flows, indirectly impacting dace. They also
noted that while debris flows are more common in the winter, summertime
debris flows have been documented in the Santa Ana Mountains.
Our Response: We clarified language in the SSA report to reflect
more accurately the cause of debris flows and the indirect impact fire
has on daces with regard to debris flows. Flooding events are not
necessarily the cause of debris flows. Instead, intense precipitation
events cause debris flows that may also result in flooding. Language in
the SSA report was also revised to reflect the possibility of debris
flows occurring outside of winter when larger rainfall events are
expected. We recognize that while wildfires do not cause debris flows,
they increase the likelihood of a debris flow.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
Santa Ana speckled dace is presented in the SSA report (Service 2023a,
pp. 6-8).
The Santa Ana speckled dace is a small freshwater fish that
occupies cool headwaters of perennial streams and rivers in the
mountains north and east of Los Angeles, California. The species was
historically found throughout river systems at the bases of the San
Gabriel, San Bernardino, and San Jacinto Mountain ranges in Los
Angeles, San Bernardino, and Riverside Counties, California. For a map
of the species' range, see Docket No. FWS-R8-ES-2024-0018 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Several speckled dace species occur throughout California. At the
time of our petition finding, we stated that a formal taxonomic
description at the species rank or subspecies rank had not been
prepared and had not passed scientific peer review, either as part of
acceptance for publication or through some other equivalent review. We
therefore determined that the Santa Ana speckled dace was not listable
as a taxonomically described species. The Santa Ana speckled dace has
since been described as genetically distinguishable from other speckled
dace species (Su et al. 2022, entire, Moyle et al. (2023, entire).
Therefore, in this proposed rule we are analyzing the Santa Ana
speckled dace at the species rank.
The Santa Ana speckled dace has an olive to darkish yellow body,
with the stomach area paler in color. During the breeding season, both
males and females have orange- or red-tipped fins, with males also
having red snouts and lips. This small-scaled fish has a small
downfacing mouth and a pointed snout with a small barbel on each end of
the maxilla. A small patch of skin connects the snout to the upper lip.
The speckled dace's subterminal mouth and tooth structure are ideal for
consuming the small aquatic invertebrates most common in riffles
(hydropsychid caddisflies, baetid mayflies, and chironomid and simuliid
midges), which generally make up the bulk of the speckled dace's diet
(Moyle et al. 2015, p. 2). The speckled dace also consumes filamentous
algae (Moyle et al. 2015, p. 2).
The Santa Ana speckled dace's lifespan is coarsely correlated with
maximum size, with dace under 80 millimeters (mm) fork length (FL) (the
typical size of a Santa Ana speckled dace) living for roughly 3 years.
Dace in the upper reaches of the San Gabriel River drainage commonly
reach more than 110 mm (4.3 inches (in)) standard length (SL); in other
locations, dace this large can live up to 6 years (Moyle et al. 2015,
p. 3). Daces grow to 20 to 30 mm (0.79 to 1.2 in) SL by the end of
their first summer and grow each subsequent year by an average of 10 to
15 mm (0.4 to 0.6 in) SL. Typically females grow faster than males.
Under stressful environmental conditions, limited food, or high
population densities, growth rates can decrease. Santa Ana speckled
daces reach sexual maturity by the end of the second summer; based on
size and location, females generate between 190 and 800 eggs (Moyle et
al. 2015, p. 3). High flow events and/or rising water temperatures are
normally correlated with dace spawning, making March through May the
presumed spawning period for the Santa Ana speckled dace.

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. On April 5, 2024, jointly with the National Marine
Fisheries Service, we issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and what criteria we apply when
designating listed species' critical habitat (89 FR 24300). On the same
day, we published a final rule revising our protections for endangered
species and threatened species at 50 CFR 17 (89 FR 23919). These final
rules are now in effect and are incorporated into the current
regulations.
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

[[Page 65819]]

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 <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
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 taking into account
considerations such as 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 Santa Ana speckled dace'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. 2017, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R8-
ES-2024-0018 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We analyze these factors
both individually and cumulatively to determine the current condition
of the species and project the future condition of the species under
both plausible future scenarios at mid- and late-century.

Species Needs

In order for the Santa Ana speckled dace to have high viability,
the species needs to maintain its representation (adaptive capacity) by
having multiple, sufficiently resilient populations (redundancy) in
different watersheds. The amount of available habitat for the Santa Ana
speckled dace is mainly driven by cold, flowing water in the streams
throughout the watersheds that the species occupies. Having reaches of
flowing water (as opposed to dry creek beds) that individuals can
occupy and use to disperse to new areas in the watershed is important
for population resiliency. The species inhabits a relatively small
area, making adequate amounts of suitable habitat important for the
resiliency of the species.
Individual needs for the Santa Ana speckled dace revolve around
having consistent clean, cool water (estimated temperatures that stay
below 28 degrees Celsius ([deg]C) (82 degrees Fahrenheit ([deg]F)) in
the summer months) with access to aquatic invertebrates as a food
source. Fertilized eggs and larvae utilize gravel substrate during
development, and, later, larvae use rocks and emergent vegetation for
cover. Adult Santa Ana speckled daces inhabit a variety of stream
habitats, with a preference for moving water. Populations need abundant
individuals within habitat patches of adequate area and quality to
maintain survival and reproduction in spite of disturbance. For the
Santa Ana speckled dace, this revolves around having adequate flows of
cold water that connect the populations within each watershed. Having
enough water in ephemeral creeks and limited fish barriers are
important to allow dace within the population to disperse

[[Page 65820]]

throughout connected habitat and not become isolated. Santa Ana
speckled dace population size varies greatly based on the annual
conditions of the habitat, and populations will rebound when conditions
are conducive to the species' needs. The amount of water is strongly
correlated with the annual fluctuation in habitat conditions, with
droughts correlated to lower dace numbers. Without enough cold water
throughout the year to maintain connectivity, populations are more
likely to become isolated and less resilient to the presence of ongoing
threats.
Connectivity allows individuals to move among reaches in a
watershed, for example, upstream and downstream without barriers
impeding movement. Connectivity allows for movement of individuals in
response to stressors such as high flow events or fire and allows for
dispersal and gene flow among Santa Ana speckled dace occurrences,
which maintains genetic diversity and increases population resiliency.
Connectivity within a watershed becomes increasingly important as
localized threats increase, forcing individuals to find more suitable
habitat to survive.

Factors Influencing Species Viability

The following discussion provides a summary of the primary factors
that affect or may affect the current and future conditions of the
Santa Ana speckled dace. For our analysis, we evaluated impacts from
the following threats to the species: (1) habitat loss (due to urban
development); (2) habitat degradation (due to recreational activities,
mining, roadways, and hydrological activities and diversions); (3)
habitat fragmentation; (4) increased risk of wildfire (probability of
fire and contributions to debris flows); (5) changing climate trends
(e.g., increased debris flows from high wintertime precipitation
events, increased temperatures, and longer, more frequent drought
periods); (6) nonnative species (increased competition and predation);
and (7) small population effects.

Habitat Loss

The lower portions of the San Gabriel, Santa Ana, and Los Angeles
rivers that were part of the Santa Ana speckled dace's historical range
no longer support the species because of habitat loss from extensive
urbanization. The middle and lower reaches of these rivers have been
channelized and impounded for flood control, and riparian corridors
have been replaced with concrete-lined canals. Water quality has also
been degraded and become unsuitable for daces due to urbanization. For
example, the lower reaches of the San Gabriel, Santa Ana, and Los
Angeles rivers have highly unsuitable levels of pH, ammonia, lead,
coliform, trash, scum algae, total dissolved solids, heavy metals,
pathogens, bacteria, and nutrients (Moyle et al. 2015, p. 8). Habitat
that is currently suitable for the Santa Ana speckled dace is
restricted to headwater habitats that are not impacted by urbanization.

Habitat Degradation

Recreational Activities--Much of the remaining habitat occupied by
the Santa Ana speckled dace is located in the Angeles and San
Bernardino National Forests, which are some of the most heavily visited
National Forests in the country. Impacts from recreation are an
increasing threat for daces, particularly in the small waterways they
inhabit. Recreational activities that directly impact daces and their
habitat include swimming, off-highway vehicle (OHV) use, dam building,
littering, camping, and recreational mining. These activities stress
and displace fish. The artificial impoundments erected to create
swimming and bathing areas impact water quality (including temperature
and sedimentation) and fragment the habitat by limiting dispersal. OHV
use directly disturbs waterways and nearby vegetation and soils, as
well as increases nonpoint sources of pollution (including trash) and
sedimentation. Based on current levels, recreational activities are a
moderate and rangewide threat to the Santa Ana speckled dace.
Mining--Suction dredging is currently banned in California,
although it was used in the past in the San Gabriel River and in the
Cajon Wash and Lytle Creek. Recreational mining for gold has increased
in these same areas in recent years with the increase in gold prices.
This activity lowers water quality, destroys sensitive habitat, and
disturbs Santa Ana speckled daces in the surrounding areas. In the San
Gabriel River watershed, gold mining activities are impacting daces in
the East Fork of the San Gabriel River and Cattle Creek. Habitat in
Fish Canyon has also been impacted by a rock quarry, although, as of
2015, the mining company was in the process of restoring habitat for
the Santa Ana speckled dace (Moyle et al. 2015, p. 8). Any mining
activities that affect the water channel can also directly kill or
injure individual fish. Overall, mining activities occur in a few areas
and appear to be less extensive than other recreational activities.
While mining is not currently considered a substantial threat,
recreational mining is currently degrading habitat quality in some
areas within the species' range, and changes in restrictions that would
increase the rangewide extent of mining activities could result in a
substantial increase in impact on the Santa Ana speckled dace in the
future.
Roadways--Roadways that run along or cross occupied Santa Ana
speckled dace habitat create a variety of impacts that degrade habitat
and impact water quality. Roads are sources of nonpoint pollution
(chemical and trash) and sediment inputs and can also constrict the
natural morphology of the waterway (straighten out a naturally braided
stream), restricting dispersal capacity for individuals. Roads can also
negatively impact or eliminate vegetation near riverbanks, degrading
water quality and overall habitat quality. Unpaved roads increase the
potential for erosion and sediment inputs, especially in mountainous
terrain, where most of the remaining Santa Ana speckled dace habitat is
found. Where roads facilitate recreational access and activities, the
associated negative effects are moderately impacting the majority of
Santa Ana speckled dace analytical units.
Hydrological Activities and Diversions--Water flow in Big Tujunga
Creek and in the West Fork of the San Gabriel River is regulated by
large permanent dams that impact habitat quality, stream flow, water
temperature, sediment transport, stream morphology, and dispersal.
Unregulated flows are available to maintain habitat for the Santa Ana
speckled dace in the East and North Forks of the San Gabriel River and
their associated tributaries. Several unregulated tributaries also flow
into Big Tujunga Creek.
Dams and regulated flows reduce the delivery of coarse substrates
(for example, cobble and gravel) to occupied downstream reaches,
reducing breeding and forage habitat. Above dams, the accumulation of
sediments converts actively flowing stream channels to still-water
marshes. Marsh habitat favors nonnative species, such as largemouth
bass (Micropterus salmoides) and other centrarchids that are predators
on Santa Ana speckled dace (USACE 2001, p. 4-28). Slow or standing
water also allows fine materials to settle out, resulting in a
substrate that does not support breeding and foraging habitat for the
Santa Ana speckled dace. In periods of extreme drought, releases from
dams have helped provide sufficient flows to move sediment to improve
habitat for the Santa Ana speckled dace downstream.

[[Page 65821]]

Levees and other methods of channelizing streams limit and often
prevent the natural meandering process of rivers, limiting them to more
linear paths. As such, levees confine available habitats to a narrower
geographical area and, under most conditions, a shorter linear length.
Additionally, during flood events, water confined within levees flows
faster, and areas that serve as refugia/sheltering habitat become
scarce. In summary, hydrological modifications--dams and stream
channelization activities--have significantly altered and degraded
Santa Ana speckled dace habitat throughout the dace's historical range,
reducing its current habitat conditions compared to its historical
habitat conditions, and represent a moderate to high threat to the
species.
Habitat Fragmentation From Hydrological Modifications
Hydrological modifications also limit or sever habitat
connectivity, which affects the dispersal of the Santa Ana speckled
dace. Such modifications include flood control dams, drop structures,
recreational dams, road crossings (for example, culverts), and levees.
Large dams, such as Cogswell Dam, severely limit connectivity between
Santa Ana speckled dace populations, only allowing limited,
unidirectional migration downstream. These and other barriers reduce
fish passage, in turn reducing gene flow and limiting or preventing
population replenishment. Drop structures also impede or prevent
upstream movement. Recreational dams, constructed out of rocks,
vegetation, or other debris to create pools for recreational waterplay,
create barriers during low-flow conditions but may be passable during
higher flow conditions. Although recreational dams are typically
destroyed by high winter flows, recreationalists subsequently rebuild
new dams. Trash and debris can also build up during high flows and
create barriers. Culverts and other road crossings may prevent access
into tributaries or limit connectivity within the main river channel.
Additionally, prolonged periods of low flows as a result of reduced
water input (such as through flood control measures, storage, or
diversion, or through drought conditions) can allow native and
nonnative vegetation to accumulate, which can sometimes serve as
barriers to fish passage (see OCWD 2012, entire). Barriers are
currently present rangewide, causing a moderately high impact on the
Santa Ana speckled dace.
Debris Flows and Increased Risk of Wildfire
Debris flows are fast-moving landslides that generally occur during
periods of intense rainfall or rapid snowmelt and usually start on
hillsides or mountains. Heavy precipitation in steep areas can cause
debris flows, which negatively impact Santa Ana speckled dace occupancy
and can extirpate small, isolated occurrences, as likely historically
occurred within Fish Canyon Creek. Currently, debris flows are a
disproportionate threat because all remaining dace habitat now occurs
in small, steep waterways due to the loss of less steep downstream
habitat to development and human activities. Debris flows can result
from an excess overland flow from intense precipitation in steep
mountain catchments with available sediment. In southern California
mountains, debris flows are driven by precipitation and occur in both
burned and unburned terrain. However, wildfires greatly increase the
likelihood of debris flows within the burned area by removing
vegetation and temporarily elevating soil hydrophobicity (Staley et al.
2017, entire), where hydrophobic layers are created in the soil profile
from the heat. When debris flows occur, they can cause significant
erosion to hillslopes and channels, resulting in large amounts of
sediment being carried downstream. This excessive sediment can fill in
pools, causing profound negative impacts on local wildlife, including
fish such as the Santa Ana speckled dace.
Wildfire has the potential to impact Santa Ana speckled dace
habitat throughout all of the occupied and unoccupied reaches of all
watersheds within the range of the species. Wildfire also eliminates
vegetation that shades the water and moderates water temperature and
may further impact water transport, sediment transport, water quality,
and flow regime. Fires followed by debris flows have the potential to
extirpate occurrences (particularly small, isolated occurrences),
especially when fire frequency increases. Burned uplands in the
watersheds affect Santa Ana speckled dace habitat by producing silt-
and-ash-laden runoff that can fill in pools and significantly increase
turbidity of rivers. Large wildfires have caused local extirpations in
isolated dace occurrences (Expert Working Group 2023, p. 23). Wildfire
will impact the Santa Ana speckled dace throughout its remaining range,
although the location, frequency, and size of these events cannot be
precisely predicted. An expected increase in wildfire frequency and
severity is currently a substantial threat to Santa Ana speckled dace
habitat. Changing climate conditions are a primary driver for this, as
described below.
Changing Climate
Climate change forecasts for the Northern Hemisphere predict warmer
air temperatures, more intense precipitation events (both drought and
flooding), and increased summer continental drying by the year 2100
(Cayan et al. 2005, p. 6). The Santa Ana speckled dace requires cooler
water, with temperatures that stay below 28 [deg]C (82 [deg]F). The
species is capable of withstanding elevated water temperatures (Moyle
et al. 2015, p. 11), but the lethal upper temperature limit is unknown.
Fish are generally more stressed at the upper extremes of their
temperature range, and although they may be able to survive, elevated
temperature is an example of a stressor that may affect them through
reduced disease resistance (Moyle et al. 2015, p. 11). Drought
negatively impacts dace by reducing connectivity within currently
occupied watersheds, further isolating dace, limiting available
habitat, and degrading remaining habitat. Currently, impacts from
climate change are considered moderate, but they are projected to
increase in the future. Although average annual precipitation is
predicted to increase, summer and fall flows are predicted be stable to
slight decreases, which will reduce connectivity within currently
occupied watersheds, further isolating dace, limiting available
habitat, and degrading remaining habitat. Increases in precipitation
from wintertime storms could have both beneficial impacts to the
streams (mitigating impacts from drought including flushing systems,
reconnecting isolated reaches). However, increases in wintertime
precipitation in southern California due to climate change would most
likely lead to more frequent intense storms that can initiate debris
flows, both in burned and unburned settings. Additionally, increasing
summer air temperatures and decreasing precipitation will likely impact
the availability of suitable cooler-water habitat during the summer and
fall months, when the Santa Ana speckled dace is already most
vulnerable to low flows and high water temperatures.
Regionally, the American Southwest has the hottest and driest
climate in the United States. The current drought in the western United
States is one of the worst in the last 1,200 years and is exacerbated
by climate warming (Williams et al. 2020, p. 317). Climate

[[Page 65822]]

warming will make droughts longer, more severe, and more widespread in
the future. Prolonged droughts can cause effects to Santa Ana speckled
dace habitat (e.g., stream flows and the frequency and severity of
wildfire) in detrimental ways.
Climate change is also predicted to increase fire probability.
Although the fire footprint is not likely to change--because most of
the area within the range of the Santa Ana speckled dace has already
burned--there is an increased probability of fires in the future.
Increases in wintertime precipitation in southern California due to
climate change would most likely lead to more frequent intense storms
that can initiate debris flows, both in burned and unburned settings.
The combination of elevated water temperatures with increased risks
from drought (in summer), increased rainfall (in winter), and fire
throughout the remaining range of the Santa Ana speckled dace suggests
a higher threat from climate change in the future.
Nonnative Species
Aquatic habitat may be modified by the presence of nonnative
vegetation in a variety of ways. For the Santa Ana speckled dace, the
giant reed (Arundo donax), an invasive, bamboo-like, perennial grass
(Poaceae), poses a host of problems that degrade remaining habitats.
Giant reed is commonly found growing along lakes, streams, and other
wetted areas, and once established it can survive long periods of
drought. Where dominant, giant reed is correlated with increased levels
of pH and ammonia and decreased levels of dissolved oxygen (Moyle et
al. 2015, p. 9). Compared to other riparian vegetation, it uses large
amounts of water to support exceptionally high growth rates (Bell 1997,
p. 104). This species is considered a primary threat to riparian
corridors, and thus Santa Ana speckled dace habitat, because of its
ease of establishment and spread and its ability to alter the hydrology
of riparian systems (CDFW 2015, p. F-11).
There are numerous nonnative fish species that are common in all
four of the river systems where Santa Ana speckled daces are found.
These species are concentrated in the reservoirs and degraded streams
within these watersheds. Brown trout (Salmo trutta), hatchery-stocked
rainbow trout (Oncorhynchus mykiss), and red shiners (Cyprinella
lutrensis) can either directly compete with or predate on dace (Moyle
et al. 2015, p. 9). The American bullfrog (Lithobates catesbeiana),
another potential predator, has also been observed in Big Tujunga
Creek, and may predate on varying life stages of the dace (Haines
Creek) (ECORP Consulting Inc. 2013, pp. 29-31). Additionally, the red
swamp crayfish (Procambarus clarkii), predates upon the Santa Ana
speckled dace, is known from Big Tujunga Creek (O'Brien 2015, entire)
and may also be more widespread. Dams and impoundments (such as
engineered flood control dams, recreational dams, drop structures, and
groundwater recharge basins) and pools created as the result of changes
in hydrology from the giant reed can improve habitat for nonnative
predators, allowing their populations to increase. Impacts from
nonnative predators are rangewide and can be severe at the population
scale. The conditions that promote exposure to predation are highly
variable across locations and over time. Therefore, the threat of
nonnatives to the Santa Ana speckled dace is considered a low to
moderate threat.
Small Population Effects
The Santa Ana speckled dace occurs mostly in small, isolated
populations throughout its range. These small, isolated populations are
vulnerable to a number of deleterious effects including: (1)
demographic fluctuation due to random variation in birth and death
rates and sex ratio; (2) environmental fluctuation in resource or
habitat availability, predation, competitive interactions, and
catastrophes; (3) reduction in cooperative interactions and subsequent
decline in fertility and survival (i.e., Allee effects); (4) inbreeding
depression reducing reproductive fitness; and (5) loss of genetic
diversity reducing the ability to evolve and cope with environmental
change (Traill et al. 2010, p. 29). In particular, small populations of
Santa Ana speckled dace are more vulnerable to extirpation during
catastrophic or stochastic events, such as flood events (that can
physically wash dace away), debris flows (which are much more likely
after fire and reduce habitat quality and population size), or
sustained drought (that can result in the loss or reduction of surface
flows and concomitant increases in water temperature). Isolation means
that any remnant populations following these events are unlikely to
benefit from demographic or genetic rescue, further elevating the risks
of inbreeding depression, loss of genetic diversity, and reductions in
evolutionary potential that can contribute to population extirpation.
These small population effects interact with other factors to pose a
low to moderate threat across the species' current range.

Cumulative and Synergistic 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 species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.

Conservation Efforts and Regulatory Mechanisms

Several mechanisms provide a conservation benefit to the Federally-
listed Santa Ana sucker (Catostomus santaanae), which also provide a
benefit to Santa Ana speckled dace where the species co-occur. A native
fish facility is operated by the Riverside-Corona Resource Conservation
District that rears native fish including Santa Ana sucker and Santa
Ana speckled dace for multiple conservation efforts including research,
temporary holding, breeding for augmentations and reintroductions, and
educational purposes. The draft Upper Santa Ana River Habitat
Conservation Plan (HCP) has a conservation strategy with objectives and
actions that help benefit Santa Ana speckled dace in the Santa Ana
River AU including long term monitoring, threats analysis, removing
barriers and installing fishway passages to increase connectivity,
nonnative species control, and salvage operations to relocate
individuals after floods. The Santa Ana speckled dace is also a covered
species under the Big Tujunga Dam Low-Effect HCP where Santa Ana
speckled dace in the LA River AU benefit from multiple conservation
measures. Avoidance and minimization measures are implemented to limit
impacts on Santa Ana speckled dace and Santa Ana sucker, including the
timing of dam releases, storing and releasing supplemental water during
the dry season to improve habitat quality, habitat monitoring, dace
monitoring, and potential habitat enhancement measures. Other
regulatory mechanisms thought to have some potential to protect Santa
Ana speckled dace include: (1) California Endangered Species Act (where
the Santa Ana speckled dace co-occurs with State-

[[Page 65823]]

listed species), (2) California Environmental Quality Act, (3) National
Environmental Policy Act, (4) the Clean Water Act, (5) the Endangered
Species Act (where Santa Ana speckled dace co-occurs with other
federally-listed species), and (6) land management or conservation
measures by Federal, State, or local agencies or by private groups and
organizations. Each of these regulatory mechanisms provide some level
of support to help protect Santa Ana speckled dace throughout its
range. Several State and Federal mechanisms currently provide a
conservation benefit to the Federal- and State-listed Santa Ana sucker,
which will also provide a benefit to Santa Ana speckled dace where the
species co-occur.

Current Condition

The historical distribution of the Santa Ana speckled dace once
extended across the upland and middle reaches of the Los Angeles, San
Gabriel, Santa Ana, and San Jacinto rivers. These systems were
historically connected in the alluvial plain during flood events,
allowing for connectivity among watersheds. Additionally, these areas
provided suitable habitat as well as refuge for populations during
stochastic and catastrophic events such as fire, drought, and debris
flows. The historical viability afforded to daces by this diversity and
extent of available habitats has been lost to development and other
human impacts in the lower reaches of these watersheds. For the Santa
Ana speckled dace, the impacts of these changes from historical to
current conditions include reductions in currently available habitat,
reduced quality of remaining available habitat, minimal to no
connectivity among occupied river occurrences within and among
watersheds, and presumed small population sizes based on declining
detections over time and/or small numbers of observed fish. This
historical context for the current status of the Santa Ana speckled
dace sets the stage for the species' overall capacity to withstand
environmental and demographic stochasticity and disturbances
(resiliency), catastrophic events (redundancy), and novel changes in
its biological and physical environment (representation).
When determining population resiliency for the Santa Ana speckled
dace, we examined the four currently occupied river systems as separate
populations or analysis units: San Gabriel, Los Angeles, Santa Ana, and
San Jacinto analysis units. We used four metrics representing habitat
and demographic needs to evaluate resiliency at the analysis unit
scale: amount of habitat, quality of habitat, connectivity, and
population size. We determined the overall resiliency condition for
each analysis unit by narratively integrating two habitat needs
(habitat quality and amount of habitat) and two demographic needs (size
of population and connectivity), with the size of population (i.e.,
abundance of individuals within a population) accounting for relatively
more of the overall resiliency condition. We evaluated representation
by examining available data on the breadth of genetic, phenotypic, and
ecological diversity across the Santa Ana speckled dace's range from
historical to current conditions, as well as the species' ability to
disperse and colonize new areas. We evaluated redundancy by analyzing
the number and distribution of populations from historical to current
conditions relative to the magnitude of anticipated catastrophic
events, such as floods and wildfires.
Resiliency
The current condition of Santa Ana speckled dace populations varies
among the four analysis units, with the San Gabriel analysis unit
retaining the most high-quality and intact habitat across the range,
and moderate resiliency. Relative to the other analysis units, this
unit is more connected, although dispersal is limited among some
occurrences due to permanent barriers. Santa Ana speckled dace
populations appear to have low but stable abundance in this analysis
unit; however, population size of the unit is considered moderate due
to the number and quality of occupied river miles. In contrast, the Los
Angeles analysis unit has less habitat available with degraded habitat
quality and limited connectivity. Overall, this system has low
resiliency; however, the Santa Ana speckled dace appears to be
consistently present in low, though still relatively stable, numbers.
The Santa Ana analysis unit has the most known occurrences and most
occupied river miles, and low to moderate resiliency. Occupied
occurrences are currently disconnected and remain largely isolated by
the overall low flows. Abundance in the Santa Ana analysis unit is low
but considered stable. Finally, the San Jacinto analysis unit is less
impacted by human disturbance relative to the other analysis units,
though available habitat is limited and only one small population is
thought to remain extant, resulting in low resiliency. Overall, the two
larger analysis units have moderate (San Gabriel) and low to moderate
(Santa Ana) resiliency, contain the majority of occupied areas, and are
likely to withstand stochastic events. The other two analysis units are
smaller, have low resiliency, and are more at risk of extirpation from
stochastic events. Table 1 shows the current condition of habitat and
demographic needs and overall resiliency for each of the analysis
units.

Table 1--Overall Current Resiliency Conditions for Each Analysis Unit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Population Amount of habitat Quality of habitat Dispersal Size of population * Resiliency *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles River.................. Low................... Low/Moderate.......... Low/Moderate......... Low.................. Low.
San Gabriel River.................. Moderate.............. Moderate.............. Moderate............. Moderate............. Moderate.
Santa Ana River.................... Moderate.............. Moderate.............. Low.................. Low/Moderate......... Low/Moderate.
San Jacinto River.................. Low................... Low/Moderate.......... Low/Moderate......... Low.................. Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Resiliency is largely influenced by the size of population score, as this parameter is the most important in determining resiliency. Specifically, the
resiliency score cannot be higher than the size of population score.

Representation
Representation, or adaptive capacity, is maximized in a species
with healthy populations distributed across the breadth of its
evolutionary lineages and ecological niches that is capable of moving
to new, suitable environments or capable of altering their physical or
behavioral traits (phenotypes) to match changing environmental
conditions through either plasticity or genetic change (Nicotra et al.
2015, p. 1270; Beever et al. 2016, p. 132). By this definition, the
adaptive capacity of the Santa Ana speckled dace from historical to
current conditions has diminished due to the loss of historically
occupied habitats across the range and isolation of

[[Page 65824]]

small remnant populations in headwater habitats. This has reduced
representation of evolutionary lineages in each watershed and the
diversity of occupied ecological niches (i.e., due to population
extirpations and complete loss of lower watershed habitats). Remnant
populations are relatively small and isolated, both within and across
the four remaining analysis units. In spite of this, the number of
miles of occupied streams is still relatively high, and it is unlikely
that all populations will be impacted by threats evenly or in a
significant way that would cause widespread extirpation.
Disrupted connectivity and restriction to headwaters means that
populations have limited capacity to colonize new habitats or shift
their distribution to avoid or mitigate threats. Disrupted connectivity
also reduces or eliminates gene flow, increasing the impacts of genetic
drift and inbreeding, and reducing evolutionary potential that could
allow populations to adapt to changing environmental conditions, such
as warming stream temperatures.
While other populations of speckled daces have shown plasticity in
feeding behavior that facilitates responses to fluctuating resource
availability, feeding plasticity is reduced in anthropogenically
impacted populations (Behn and Baxter 2019, pp. 17-19) such as the
Santa Ana speckled dace. Additionally, relative to other native fish,
other species in the Santa Ana speckled dace complex have limited
plasticity (i.e., acclimation capacity) in their upper thermal
tolerance, reducing tolerance for increasing water temperatures
(Carveth et al. 2006, pp. 1436-1438).
Overall, these constraints on dispersal capacity, evolutionary
potential, and plasticity, in combination with low to moderate
resiliency of Santa Ana speckled dace populations, point to limited
representation (adaptive capacity) within populations and across the
species' range.
Redundancy
As with representation, redundancy from historical to current
conditions for the Santa Ana speckled dace has been diminished due to
permanent loss of historically occupied habitats. In particular, loss
of the lower reaches of the currently occupied watersheds has
eliminated access to refugial habitats that historically protected fish
from extirpation during stochastic and catastrophic events including
fire, drought, and debris flows. These habitats also allowed for
recolonization of upper headwaters once conditions improved. These
habitat losses have placed all remaining remnant populations at a much
higher risk of extirpation due to catastrophic and even less severe
stochastic events. This is illustrated by fish salvage efforts (e.g.,
in the San Gabriel River analysis unit) that were needed after the 2020
Bobcat Fire to protect populations from debris flows; historical access
to lower-elevation habitats would likely have allowed populations to
persist and recolonize naturally (i.e., without human intervention) in
response to fire and debris flow events.
Currently, the Santa Ana speckled dace occupies 17 occurrences
across four analysis units. This relatively broad distribution provides
some level of redundancy and helps ensure that multiple populations
contribute to species viability since all occurrences are unlikely to
be impacted simultaneously by any single catastrophic event. Two of the
analysis units with low resiliency (Los Angeles River and San Jacinto
River) are more at risk of stochastic and catastrophic events, and the
loss of either of these would reduce redundancy. However, the other two
analysis units are significantly larger and less likely to become
extirpated from stochastic or catastrophic events. Overall, redundancy
has been reduced compared to historical conditions. The fact that Santa
Ana speckled daces have been able to naturally recolonize areas shortly
after a catastrophic event suggests that there is recovery potential
where risks can be mitigated via human intervention, which could help
to maintain redundancy in the future.
Summary of Current Condition
The Santa Ana speckled dace occurs in the San Gabriel, San
Bernardino, and San Jacinto Mountain ranges in Los Angeles, San
Bernardino and Riverside Counties, California. The majority of occupied
habitat is on Federal lands, and the species occurs in 17 extant
occurrences across four analysis units. Fish are largely restricted to
the headwaters with a low to moderate quantity of habitat with moderate
quality habitat readily available. There is limited connectivity within
some of the populations, particularly in the Santa Ana River and San
Jacinto River analysis units. Populations are generally stable
currently, although smaller populations will be less able to withstand
environmental and demographic stochasticity in the foreseeable future.
The low to moderate resiliency across the four extant units, in
addition to losses across the historical range, contributes to an
overall reduced adaptive capacity for Santa Ana speckled dace
populations, which may limit their ability to respond to novel changes
in the environment. However, the species as a whole is generally
resilient to periodic disturbances, and the species is consistently
detected across the analysis units. Small population sizes not only
increase risks from demographic and environmental stochasticity but
also reduce the genetic and trait diversity that supports
evolutionarily adaptive and plastic responses to change. Lack of
connectivity and limited habitat availability also reduce the ability
of populations to disperse in response to changing future conditions.
Overall viability of the Santa Ana speckled dace is reduced
relative to historical conditions, however there are currently 17
extant populations across the range. We anticipate that while these
populations are currently relatively stable, diminished viability over
time may result in a low to moderate ability to sustain populations in
the wild into the future. These are the baselines that we used when
projecting the species' future condition.

Future Condition

To analyze future conditions, we developed two plausible scenarios
to assess how the species' needs, threats, and habitat conditions may
change at both mid-century and late century. We considered what the
Santa Ana speckled dace needs for species viability, and we evaluated
the past, current, and future influences that are affecting habitat and
demographic needs. Habitat loss, habitat degradation, habitat
fragmentation, increased risk of wildfire, nonnative species, climate
change, and small population sizes are the threats evaluated in the
future scenarios, as they are projected to influence the viability of
the Santa Ana speckled dace into the future. None of the threats we
identified were insignificant enough to exclude from our future
condition evaluation. We applied our future forecasts to the concepts
of resiliency, representation, and redundancy to describe the future
viability of the Santa Ana speckled dace.
After evaluating the current threats described above, we determined
that the Santa Ana speckled dace will likely continue to be impacted by
all current identified threats. Because future changes in the global
climate have the potential to affect a number of current threats, we
developed two plausible future scenarios based on the recommended lower
and upper bounds for climate change emissions scenarios, representative
concentration pathway (RCP) 4.5 and RCP 8.5 at mid-century

[[Page 65825]]

(2030-2059) and late-century (2070-2099) timepoints (Service 2023b, p.
10). We forecast the future scenarios at two timepoints (mid-century
and late century) because these time periods are within the range of
the available climate change model projections that we used to project
changes in stream temperature, stream flow, and fire, and these model
projections are considered the best available science (Service 2023a,
pp. 15-16). Table 2, below, describes the change in parameters for each
of the scenarios compared to the modeled baseline.
These future scenarios examine the same threats identified above
under Current Condition, including habitat loss, habitat degradation,
habitat fragmentation, increased risk of wildfire, nonnative species,
small population effects, and climate change (extreme precipitation
metrics (10-year flood events), stream flows, and stream temperatures).
For area burned, we used the Cal-Adapt boundary selection tool to
upload AU shapefiles to aggregate annual hectares burned in each AU
(where data were available) for each RCP model. Current threats are
predicted to be ongoing based on analysis including climate change
models, discussions with species experts and land managers, and review
of reports and other literature. Impacts from recreation and other
human-related impacts (including maintaining current dams that fragment
the habitat) are expected to continue in the future, while all climate
models predict the main impacts of climate change will continue through
the century. Since invasive species are hard to eradicate, we predict
plausible impacts from these species will continue in the future,
although management decisions will influence the level of impact to
some degree.
For each scenario, we describe the threats that would occur in each
analysis unit. We examined resiliency, representation, and redundancy
under each of these two plausible scenarios. In this analysis,
population resiliency depends on demographic conditions (including
distribution size, population size, and connectivity) and the overall
amount and quality of habitat that is available. Debris flows caused by
heavy precipitation events (primarily wintertime storms that result in
flood events), with or without the aggravating impact of wildfire burn
scars, are a primary threat that influences resiliency for each
analysis unit.

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

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

Table 3--Future Scenario 1 (RCP4.5) Mid-Century Condition Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Analysis unit Amount of habitat Quality of habitat Dispersal Size of population Resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles River.................. Low................... Low/Moderate.......... Low/Moderate......... Low.................. Low.
San Gabriel River.................. Moderate.............. Low/Moderate.......... Moderate............. Low/Moderate......... Low/Moderate.
Santa Anta River................... Moderate.............. Moderate.............. Low/Moderate......... Moderate............. Moderate.

[[Page 65826]]

San Jacinto River.................. Low................... Low/Moderate.......... Low/Moderate......... Low.................. Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 4--Future Scenario 1 (RCP4.5) Late Century Condition Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Analysis unit Amount of habitat Quality of habitat Dispersal Size of population Resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles River.................. Low................... Low................... Low/Moderate......... Low.................. Low.
San Gabriel River.................. Moderate.............. Low................... Moderate............. Low.................. Low.
Santa Anta River................... Moderate.............. Moderate.............. Low/Moderate......... Moderate............. Moderate.
San Jacinto River.................. Low................... Low/Moderate.......... Low/Moderate......... Low.................. Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Representation--In this scenario, adaptive capacity is further
reduced from historical levels with impacts to the four analysis units
that represent the last remnants of the species' historical range (the
headwaters of four river systems). The San Gabriel River analysis unit
is projected to become more degraded by the increased risk of fire and
high rainfall events, reducing dispersal capacity and evolutionary
potential within the current stronghold analysis unit. The Santa Ana
River analysis unit has the best chance of maintaining current habitat
and population sizes as there is less risk of fire. The least resilient
analysis units, the San Jacinto River and Los Angeles River, are likely
to remain small due to increased fire risk. In summary, ongoing
reductions in habitat quantity, habitat quality, connectivity, and
population sizes will continue degrading representation rangewide,
contributing to reduced ability to adapt to changing conditions in the
future under this scenario.
Redundancy--In this scenario, all four analysis units are projected
to remain extant, although reduced resiliency and representation at
late century put dace populations at higher risk of extirpation from
catastrophic events. Although the distribution is projected to remain
spread over four river systems, dace generally occur in the upper
tributaries where there is a limited capacity to recover from high
consequence events, such as fires, droughts, and debris flows. Two of
the analysis units with low resiliency are more at risk of stochastic
and catastrophic events, and the loss of either of these would reduce
redundancy. The remaining two analysis units are significantly larger
and less likely to become extirpated from stochastic or catastrophic
events. The magnitude (i.e., flow levels) of 10-year flood events,
representing potentially catastrophic events that could extirpate dace
occurrences, are 1.1 to 1.9 times higher than baseline 10-year flood
events by mid-century (see Service 2023a, appendix D, table D-5, p.
86). In particular, Cajon Creek and the Santa Ana River Mainstem in the
Santa Ana River analysis unit are projected to see flooding at 1.5 and
1.9 times baseline flood levels, respectively, placing these
occurrences at higher risk of extirpation. By late century, reduced
emissions under RCP4.5 lower the magnitude of 10-year flood events to
1.0-1.5 times baseline flood levels, slightly reducing the risk of
extirpation due to debris flows caused by storms. Overall, it is
unlikely that catastrophic events such as floods and subsequent debris
flows would extirpate all current occurrences within an analysis unit,
though some are at higher risk than others.
Scenario 2
Resiliency--Under Scenario 2, a high emission scenario (RCP8.5) was
used to evaluate impacts from threats related to increased risk of
wildfire and climate change (stream flows, winter precipitation, and
stream temperatures; see section 8.1 of the SSA report for more detail)
at mid-century and late century. In this scenario, habitat loss,
habitat degradation (human recreation activities, mining, roadways, and
hydrological modifications and diversions), habitat fragmentation,
nonnative species effects, and small population effects continue at the
same rate. Impacts from a changing climate are already influencing
Santa Ana speckled dace in all analysis units, and the future impacts
under RCP8.5 will continue to increase. Climate change projections
predict increases in the probability of fire and the magnitude of 10-
year flood events. As described above, modeled changes in wintertime
base flows and the magnitude of 10-year flood events are proxies for
changes in extreme precipitation/wintertime storms. Heavy precipitation
events, with or without the aggravating impact of wildfire burn scars,
have an outsized influence over future debris flows, which are widely
acknowledged to lower resiliency of dace by reducing population size
and degrading habitat. Under Scenario 2, at mid-century, all
populations are projected to be at low resiliency and are more at risk
of stochastic events; by late century, two of the analysis units will
also be at risk of extirpation. The future conditions for the four
analysis units projected under Scenario 2 for mid-century and late
century are shown in tables 5 and 6, respectively.

Table 5--Future Scenario 2 (RCP8.5) Mid-Century Condition Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Analysis unit Amount of habitat Quality of habitat Dispersal Size of population Resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles River.................. Low................... Low................... Low/Moderate......... Low.................. Low.
San Gabriel River.................. Moderate.............. Low................... Low/Moderate......... Low.................. Low.
Santa Anta River................... Moderate.............. Low/Moderate.......... Low/Moderate......... Low.................. Low.
San Jacinto River.................. Low................... Low................... Low/Moderate......... Low.................. Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 65827]]

Table 6--Future Scenario 2 (RCP8.5) Late Century Condition Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Analysis unit Amount of habitat Quality of habitat Dispersal Size of population Resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles River.................. Low................... Low................... Low/Moderate......... Extirpated........... Extirpated.
San Gabriel River.................. Low/Moderate.......... Low................... Low.................. Low.................. Low.
Santa Anta River................... Low/Moderate.......... Low................... Low.................. Low.................. Low.
San Jacinto River.................. Low................... Low................... Low/Moderate......... Extirpated........... Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Representation--In this scenario, due to the heightened threats
described in Scenario 2 the trajectory for projected loss of
representation relative to historical and current conditions is more
severe when compared to Scenario 1. This is driven by the potential
extirpation of two of the four AUs, which represent the most southern
and most western populations. These extirpations would represent
complete loss of evolutionary lineages and occupancy of potentially
unique habitats across the species' range. These decreases in the
species' range would limit recovery potential as genetic and phenotypic
diversity and the corresponding adaptive capacity in these AUs would be
permanently lost.
Representation--In this scenario, the extirpation of two AUs by
late century and low condition for all AUs at mid-century points to a
sharp drop in redundancy across the species' range. In addition to
reductions in resiliency, all AUs face elevated risks from high
magnitude 10-year flood events at both mid and late-century, which
correlates to higher risk of debris flows. In particular, all eight
current occurrences within the Santa Ana AU will see 10-year flood
events that are 1.4-2.5 times baseline flood levels at mid-century,
placing the entire AU at risk from catastrophic debris flow events from
extreme precipitation events. By late century, the magnitude of 10-year
flood events is 1.2-3.6 times baseline flood flows rangewide, with
almost all occurrences facing significantly higher 10-year flood
levels, elevating AU-wide extirpation risks. Combined with reduced
resiliency, these increases in potentially catastrophic flood events
(and resulting debris flows from storms) indicate that at least two AUs
are likely to be extirpated under Scenario 2 by late-century.
Summary of Future Condition
Future scenarios for the Santa Ana speckled dace point to
conditions that will further degrade the viability of the species.
Under a low to moderate emissions climate change scenario (Scenario 1,
RCP4.5), one of the four analysis units (Santa Ana River) will have
moderate resiliency given stochastic environmental and demographic
disturbances through late century. Low resiliency across the remainder
of the range will contribute to ongoing reductions in adaptive capacity
and place populations at high risk of extirpation from catastrophic
events due to limited capacity to respond and recover from high
consequence events, including increased fire and debris flows. Under a
higher emissions climate change scenario (Scenario 2, RCP8.5), two
analysis units are projected to be extirpated by late century, with the
remaining two units in low condition. All units will face elevated
risks of extirpation from high-magnitude flood events. Losses of
redundancy and representation rangewide, including the extirpation of
two analysis units, will dramatically reduce overall species viability.
Overall, future species resiliency is projected to be low,
representation will become limited, and reduced redundancy will place
the species at high risk from catastrophic events. Thus, the Santa Ana
speckled dace will have less capacity to sustain populations in the
wild in the future, reducing viability and elevating extinction risk.
Table 7, below, describes the comparison between current condition and
future condition for the species.

Table 7--Current and Future Condition Category Comparison Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-century future Mid-century future Late century future Late century future
Analysis unit Current scenario 1 scenario 2 scenario 1 scenario 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles River.................. Low................... Low................... Low.................. Low.................. Extirpated.
San Gabriel River.................. Moderate.............. Low/Moderate.......... Low.................. Low.................. Low.
Santa Anta River................... Low/Moderate.......... Moderate.............. Low.................. Moderate............. Low.
San Jacinto River.................. Low................... Low................... Low.................. Low.................. Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Determination of Santa Ana Speckled Dace's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we found that habitat loss, habitat degradation, and habitat
fragmentation (all Factor A) are the most substantial threats to the
species' viability. Within the foreseeable future, we anticipate that
heavier debris flows pose the greatest future threat to the Santa Ana
speckled dace's viability. Increased debris flows, driven by an
increase in heavy rainfall and wildfire, are projected to impact
habitat quality

[[Page 65828]]

and lead to future loss of habitat, particularly by late century.
Effects from climate change are also projected to increase the
probability of fire and affect habitat quality by raising water
temperatures in summer and winter. We also considered the effects of
nonnative species and the effects of small population size for their
cumulative effects.
Given the presence of 17 populations across the four AUs that
comprise the range of the Santa Ana speckled dace, and their general
stability in terms of occurrence (detectability) and reproduction, the
species is able to maintain its current resiliency. Historical
constraints on dispersal capacity, evolutionary potential, and
plasticity have reduced representation for the Santa Ana speckled dace.
However, despite historical losses across the range, the species is
currently extant among 17 occurrences, occupying 76 stream miles across
four river systems. Having multiple populations provides redundancy
against large catastrophic events, and it is unlikely that a single
event would cause extinction across the species' range. When
connectivity is still intact, populations have shown the ability to
naturally recolonize areas affected by catastrophic events, which
indicates that there is still some level of redundancy within
populations (including the 2020 Bobcat Fire which impacted both the
West Fork San Gabriel River and Bear Creek). Salvage efforts are also
utilized to boost resiliency after flooding.
Santa Ana speckled dace populations are currently stable and
reproducing, albeit at relatively low numbers. Small, isolated
populations with reduced genetic diversity may magnify risk from
demographic and environmental stochasticity. Lack of connectivity and
limited habitat availability also reduce the ability of populations to
shift in space in response to environmental change. However, the
species shows resiliency in response to periodic disturbance, and fish
are consistently found in the river systems they occupy. In addition,
survey data indicate that in spite of multi-decadal threats and
impacts, the species still occupies populations across its range.
Furthermore, with four analysis units that have low to moderate
resiliency, it is likely that the species will withstand stochastic
events under current conditions. Given the current levels of
resiliency, representation, and redundancy of the Santa Ana speckled
dace across its range, and the relative stability the species maintains
within each analysis unit, we conclude that the species is not
currently in danger of extinction throughout all of its range.
We next considered whether the Santa Ana speckled dace is likely to
become in danger of extinction within the foreseeable future throughout
all of its range. In considering the foreseeable future for the
species, we analyzed expected changes in habitat availability, habitat
degradation, habitat fragmentation, increased risk of wildfire,
presence of nonnative species, climate change, and small population
sizes to mid-century (2030-2059) and late-century (2070-2099)
timepoints (Service 2023a, pp. 35-46). We determined that these
timeframes represent periods for which we can make reasonably reliable
predictions about both the threats to the species and the species'
response to those threats.
Under a low to moderate emissions climate change scenario (Scenario
1, RCP4.5), resiliency at mid-century will be similar to current
conditions, remaining low to moderate across the four analysis units.
Representation and redundancy will also be comparable to current
conditions. Because of similar conditions in Scenario 1, the Santa Ana
speckled dace's viability at mid-century is not expected to change from
its current level. However, there is still uncertainty about the level
of impact that debris flows and a generally increased risk of wildfire
might have on habitat quality amid changing climate conditions. Under a
higher emissions climate change scenario (Scenario 2, RCP8.5), all four
analysis units are projected to have low resiliency by mid-century,
putting them all at risk of extirpation from stochastic events.
Representation is also projected to be diminished, making it harder for
the Santa Ana speckled dace to adapt and recover from adverse
conditions. Redundancy is also reduced from current condition,
increasing the likelihood of extirpation. Overall, the Santa Ana
speckled dace will experience ongoing declines due to primary threats,
and a reduced overall capacity to sustain populations in the wild into
the future, substantially reducing viability and elevating extinction
risk. Secondary threats, while not influencing viability in significant
ways currently, could have more pronounced adverse effects given
continuous declines in future condition. Thus, after assessing the best
available information, we conclude that the Santa Ana speckled dace is
not currently in danger of extinction but is likely to become in danger
of extinction within the foreseeable future throughout all of its
range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final
Policy''; 79 FR 37578, July 1, 2014) that provided if the Service
determines that a species is threatened throughout all of its range,
the Service will not analyze whether the species is endangered in a
significant portion of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
the species is in danger of extinction in a significant portion of its
range. In undertaking this analysis for the Santa Ana speckled dace, we
choose to address the status question first.
We evaluated the range of the Santa Ana speckled dace to determine
if the species is currently in danger of extinction in any portion of
its range. The range of a species can theoretically be divided into
portions in an infinite number of ways. We focused our analysis on
portions of the species' range that may meet the Act's definition of an
endangered species. For the Santa Ana speckled dace, we considered
whether the threats or their effects on the species are greater in any
biologically meaningful portion of the species' range than in other
portions such that the species is currently in danger of extinction in
that portion. For our analysis, we examined the following threats:
habitat loss, habitat degradation, habitat fragmentation, increased
risk of wildfire, changing climate trends,

[[Page 65829]]

nonnative species, and small population effects.
While threats that may impact the Santa Ana speckled dace are not
concentrated in any geographic areas within the range, our analysis
indicated that two analysis units within the range may be more
vulnerable to extirpation than the other two. The Los Angeles River
analysis unit is a smaller unit with two occupied Santa Ana speckled
dace occurrences. While these occurrences are connected, the analysis
unit has limited available habitat, degraded habitat quality, and
consistently low abundance estimates. The amount of available habitat
within this unit, with 15 miles of occupied habitat, was rated as low
because there are less than 20 stream miles of occupied habitat that
does not require some form of management to maintain. Habitat quality
within the analysis unit was rated as low to moderate because some of
the essential features, including habitat free of nonnative species,
adequate flows, appropriate water quality, and proper substrate, are
degraded.
The San Jacinto River analysis unit is the smallest and least
surveyed of the analysis units, occurring mostly within Tribal lands.
Occurrences within this analysis unit are not influenced by high levels
of human impact (e.g., urbanization). Instead, impacts from drought,
fire, and debris flows are the main threats affecting resiliency in
this analysis unit. Nonnative species are present in the North and
South Forks of the San Jacinto River, which may have contributed to the
possible extirpation of Santa Ana speckled dace from these sites. The
analysis unit has 2.8 miles of occupied habitat, which again rates as
low because there are less than 20 stream miles of occupied habitat,
with one known occupied occurrence. Other occurrences were reported as
extant in the recent past but are now possibly extirpated even though
these areas are still considered suitable. Habitat quality within the
analysis unit was rated as low to moderate because some of the
essential features, including habitat free of nonnative species and
adequate flows, are degraded. Connectivity is considered low to
moderate because the one extant occurrence is connected to historically
occupied habitat that could become occupied again in the future, making
dispersal possible between these areas. Size of population was rated as
low due to only one known extant occurrence with flows becoming very
small during dry conditions, limiting dace abundance within the
analysis unit.
Because of the current condition due to the threats described
above, we determined these portions may have a different status than
the rest of the range and then considered whether these portions may be
significant. Collectively, the Los Angeles River analysis unit and the
San Jacinto River analysis unit account for 3 of 17 (17.6 percent) of
occurrences, and account for 23.5 percent of occupied river miles
within the range of the Santa Ana speckled dace. Therefore, together
these portions collectively comprise only about 18 percent of overall
Santa Ana speckled dace occurrences and account for less than 25
percent of total river miles within the species' range. The San Jacinto
River analysis unit is spatially disjunct and may have unique genetic
alleles within the range of the species, because of its location mostly
within Tribal lands that do not experience the effects of human
activities such as urbanization or recreation. However, both analysis
units have relatively lower habitat quality compared to the other two
analysis units. Thus, the Los Angeles River analysis unit and the San
Jacinto River analysis unit do not constitute a large geographic area
relative to the other two analysis units, nor do we find them to be
individually or collectively significant. We found no other
biologically meaningful portions of the Santa Ana speckled dace's range
where the biological condition of the species may differ from its
condition elsewhere in its range such that the status of the species in
that portion may differ from any other portion of the species' range.
Therefore, no portion of the species' range provides a basis for
determining that the species is currently in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because,
in reaching this conclusion, we did not apply the aspects of the Final
Policy, including the definition of ``significant'' that those court
decisions held to be invalid.

Determination of Status

Our review of the best available scientific and commercial
information indicates that the Santa Ana speckled dace meets the Act's
definition of a threatened species. Therefore, we propose to list the
Santa Ana speckled dace as a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, foreign
governments, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies, including the Service, and the prohibitions
against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing

[[Page 65830]]

recovery tasks. Revisions of the plan may be done to address continuing
or new threats to the species, as new substantive information becomes
available. The recovery outline, draft recovery plan, final recovery
plan, and any revisions will be available on our website as they are
completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of California would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Santa Ana speckled dace. Information
on our grant programs that are available to aid species recovery can be
found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although the Santa Ana speckled dace is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled Interagency Cooperation and mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2) of the
Act.
Examples of discretionary actions for the Santa Ana speckled dace
that may be subject to conference and consultation procedures under
section 7 are land management or other landscape-altering activities on
Federal lands administered by the U.S. Forest Service and the U.S. Army
Corps of Engineers, as well as actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation. Federal agencies should coordinate with the
local Service Field Office (see FOR FURTHER INFORMATION CONTACT, above)
with any specific questions on section 7 consultation and conference
requirements.

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

Background

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

[[Page 65831]]

[She] may, for example, permit taking, but not importation of such
species, or [she] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this species' proposed protective regulations
under section 4(d) of the Act are one of many tools that we would use
to promote the conservation of the Santa Ana speckled dace. The
proposed protective regulations would apply only if and when we make
final the listing of the Santa Ana speckled dace as a threatened
species. Nothing in 4(d) rules change in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of the Santa Ana
speckled dace. As mentioned previously in Available Conservation
Measures, section 7(a)(2) of the Act requires Federal agencies,
including the Service, to ensure that any action they authorize, fund,
or carry out is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification of designated critical habitat of such species.
In addition, even before the listing of any species or the designation
of its critical habitat is finalized, section 7(a)(4) of the Act
requires Federal agencies to confer with the Service on any agency
action which is likely to jeopardize the continued existence of any
species proposed to be listed under the Act or result in the
destruction or adverse modification of critical habitat proposed to be
designated for such species. These requirements are the same for a
threatened species regardless of what is included in its 4(d) rule.
Section 7 consultation is required for Federal actions that ``may
affect'' a listed species regardless of whether take caused by the
activity is prohibited or excepted by a 4(d) rule (``blanket rule'' or
species-specific 4(d) rule). A 4(d) rule does not change the process
and criteria for informal or formal consultations and does not alter
the analytical process used for biological opinions or concurrence
letters. For example, as with an endangered species, if a Federal
agency determines that an action is ``not likely to adversely affect''
a threatened species, this will require the Service's written
concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency
determinates that an action is ``likely to adversely affect'' a
threatened species, the action will require formal consultation with
the Service and the formulation of a biological opinion (50 CFR
402.14(a)). Because consultation obligations and processes are
unaffected by 4(d) rules, we may consider developing tools to
streamline future intra-Service and inter-Agency consultations for
actions that result in forms of take that are not prohibited by the
4(d) rule (but that still require consultation). These tools may
include consultation guidance, Information for Planning and
Consultation effects determination keys, template language for
biological opinions, or programmatic consultations.

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

Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the Santa
Ana speckled dace's conservation needs. As discussed above under
Summary of Biological Status and Threats, we have concluded that the
Santa Ana speckled dace is likely to become in danger of extinction
within the foreseeable future primarily due to impacts to habitat,
wildfire, climate change, nonnative species, and effects of small
population size. Section 4(d) requires the Secretary to issue such
regulations as she deems necessary and advisable to provide for the
conservation of each threatened species and authorizes the Secretary to
include among those protective regulations any of the prohibitions that
section 9(a)(1) of the Act prescribes for endangered species. We are
not required to make a ``necessary and advisable'' determination when
we apply or do not apply specific section 9 prohibitions to a
threatened species (In re: Polar Bear Endangered Species Act Listing
and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 (D.D.C. 2011)
(citing Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d
1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 687 (1995))).
Nevertheless, even though we are not required to make such a
determination, we have chosen to be as transparent as possible and
explain below why we find that, if finalized, the protections,
prohibitions, and exceptions in this proposed rule as a whole satisfy
the requirement in section 4(d) of the Act to issue regulations deemed
necessary and advisable to provide for the conservation of the Santa
Ana speckled dace.
The protective regulations we are proposing for the Santa Ana
speckled dace incorporate prohibitions from section 9(a)(1) of the Act
to address the threats to the species. The prohibitions of section
9(a)(1) of the Act, and implementing regulations codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit or to cause to be committed any of the following acts with
regard to any endangered wildlife: (1) import into, or export from, the
United States; (2) take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect) within the United
States, within the territorial sea of the United States, or on the high
seas; (3) possess, sell, deliver, carry, transport, or ship, by any
means whatsoever, any such wildlife that has been taken illegally; (4)
deliver, receive, carry, transport, or ship in interstate or foreign
commerce, by any means whatsoever and in the course of commercial
activity; or (5) sell or offer for sale in interstate or foreign
commerce. This proposed protective regulation includes all of these
prohibitions because the Santa Ana speckled dace is at risk of
extinction within the foreseeable future and putting these prohibitions
in place will help to prevent further declines, preserve the species'
remaining populations, slow its rate of decline, and decrease
synergistic, negative effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the Santa Ana speckled dace by prohibiting the
following activities, unless they fall within specific exceptions or
are otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the species' remaining populations, slow their
rate of decline, and decrease cumulative effects from other ongoing or
future threats. Therefore, we propose to prohibit take of the Santa Ana
speckled dace, except for take resulting from those actions and
activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all the general
exceptions to the prohibition on take of endangered wildlife, as set
forth in 50

[[Page 65832]]

CFR 17.21, and additional exceptions, as described below.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
In addition, to further the conservation of the species, any
employee or agent of the Service, any other Federal land management
agency, the National Marine Fisheries Service, a State conservation
agency, or a federally recognized Tribe, who is designated by their
agency or Tribe for such purposes, may, when acting in the course of
their official duties, take threatened wildlife without a permit if
such action is necessary to: (i) Aid a sick, injured, or orphaned
specimen; or (ii) Dispose of a dead specimen; or (iii) Salvage a dead
specimen that may be useful for scientific study; or (iv) Remove
specimens that constitute a demonstrable but nonimmediate threat to
human safety, provided that the taking is done in a humane manner; the
taking may involve killing or injuring only if it has not been
reasonably possible to eliminate such threat by live capturing and
releasing the specimen unharmed, in an appropriate area.
We recognize the special and unique relationship that we have with
our State natural resource agency partners in contributing to
conservation of listed species. State agencies often possess scientific
data and valuable expertise on the status and distribution of
endangered, threatened, and candidate species of wildlife and plants.
State agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve the Santa Ana speckled dace that may
result in otherwise prohibited take without additional authorization.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Santa Ana speckled dace, are not expected to rise to the level that
would have a negative impact (i.e., would have only de minimis impacts)
on the species' conservation. The proposed exceptions to the 4(d)
rule's prohibitions include incidental take caused by: (1) forest or
wildland management activities that are intended to minimize negative
impacts from forest management rangewide, including activities
conducted to maintain the minimum clearance (defensible space)
requirement from structures to reduce wildfire risks consistent with
State fire codes or local fire codes or ordinances; (2) habitat
restoration and enhancement activities conducted as part of
nonpermitted Federal or State habitat restoration plans that are for
the benefit of the Santa Ana speckled dace or its habitat; and (3)
removal of nonnative species (including removal of invasive, nonnative
plants and aquatic predators) for the benefit of the Santa Ana speckled
dace and its habitat. These proposed exceptions, as discussed below,
are expected to have negligible or beneficial impacts to the Santa Ana
speckled dace and its habitat.

Proposed Species-Specific Incidental Take Exceptions

We propose to except from the take prohibitions in the 4(d) rule
those forest or wildland management activities that are intended to
minimize negative impacts from forest management rangewide. Since the
listing of the Santa Ana sucker (Catostomus santaanae; see 65 FR 19686,
April 12, 2000), a co-occurring species with the Santa Ana speckled
dace, the U.S. Forest Service has adopted additional guidance and
proposals to protect the Santa Ana sucker, and effects of management
plans are expected to also result in beneficial conservation effects
for the Santa Ana speckled dace. These excepted activities would
include activities specifically conducted to maintain the defensible
space requirement from structures; are intended to reduce wildfire
risk, which would protect Santa Ana speckled dace habitat; and would
provide enhanced public safety against fires.
We also propose to except from the take prohibitions in the 4(d)
rule those habitat restoration and enhancement activities that include,
but are not limited to, trash removal, removal of recreational dams,
restoration of waterways from recreational mining, and dam operations
that are beneficial to the Santa Ana speckled dace as outlined in a
Service-approved plan (e.g., a conservation plan developed in
coordination with the Service where take has not been covered but where
activities would lead to net conservation benefits for the Santa Ana
speckled dace). Such measures would be implemented to minimize impacts
to the Santa Ana speckled dace and its habitat, and are expected to
result in the restoration and enhancement of habitat quality features
such as natural stream flow, sediment transport, stream morphology, and
water quality within the species' range.
In addition, we propose to except from the take prohibitions in the
4(d) rule the removal of nonnative species, including noxious weed
control and other vegetation reduction in the course of habitat
management and restoration to benefit the Santa Ana speckled dace.
Activities may include mechanical and chemical control, provided these
activities are conducted in a manner consistent with Federal and
applicable State laws. Activities may also include removal or
eradication of nonnative animal species, including, but not limited to,
catfish, bass, crayfish, and bullfrogs. The use of electrofishing for
eradication of predators would have to be approved by the Service prior
to being implemented.

III. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as: The
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features essential to the conservation of
the species and which may require special management considerations or
protection; and specific areas outside the geographical area occupied
by the species at the time it is listed, upon a determination that such
areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the

[[Page 65833]]

Secretary (i.e., range). Such areas may include those areas used
throughout all or part of the species' life cycle, even if not used on
a regular basis (e.g., migratory corridors, seasonal habitats, and
habitats used periodically, but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions set forth in the 4(d) rule. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of the species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available at the time
of those planning efforts calls for a different outcome.

Critical Habitat Determinability

Our regulations at 50 CFR 424.12(a)(2) state that critical habitat
is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
We reviewed the available information pertaining to the biological
needs of the Santa Ana speckled dace and habitat characteristics where
this species is located. A careful assessment of the economic impacts
that may occur due to a critical habitat designation is still ongoing,
and we are in the process of acquiring the complex information needed
to perform that assessment. Therefore, due to the current lack of data
sufficient to perform required analyses, we conclude that the
designation of critical habitat for the Santa Ana speckled dace is not

[[Page 65834]]

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

Required Determinations

Clarity of the Proposed Rule

We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise this rulemaking, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.

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

Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and
Coordination with Indian Tribal Governments), the President's
memorandum of November 30, 2022 (Uniform Standards for Tribal
Consultation; 87 FR 74479, December 5, 2022), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We will continue to work with Tribal entities during the
development of recovery actions for the Santa Ana speckled dace.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Carlsbad Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

Accordingly, FWS proposes to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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, amend the table in paragraph (h) by adding an entry
for ``Dace, Santa Ana speckled'' to the List of Endangered and
Threatened Wildlife in alphabetical order under FISHES to read as
follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

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

----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Dace, Santa Ana speckled......... Rhinichthys Wherever found..... T............. [Federal Register
gabrielino. citation when
published as a
final rule];
50 CFR
17.44(ll).\4d\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Further amend Sec. 17.44, as proposed to be amended at 88 FR 88338
(December 21, 2023), by adding and reserving paragraphs (jj) and (kk),
and adding paragraph (ll) to read as follows:

Sec. 17.44 Special rules--fishes.

* * * * *
(jj)-(kk) [Reserved]

[[Page 65835]]

(ll) Santa Ana speckled dace (Rhinichthys gabrielino).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Santa Ana speckled dace. Except
as provided under paragraph (ll)(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 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)(3) and (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) Forest or wildland management activities that are intended to
minimize negative impacts from forest management rangewide, including
activities specifically conducted to maintain the defensible space
requirement from structures.
(B) Habitat restoration and enhancement activities, including, but
not limited to, trash removal, removal of recreational dams,
restoration of waterways from recreational mining, and dam operations
that are beneficial to the Santa Ana speckled dace. Such measures must
be implemented in accordance with a conservation plan developed in
coordination with the Service; must minimize impacts to the Santa Ana
speckled dace and its habitat; and should result in the restoration and
enhancement of habitat features such as natural stream flow, sediment
transport, stream morphology, and water quality within the species'
range.
(C) Removal of nonnative species, including noxious weed control
and other vegetation reduction, in the course of habitat management and
restoration to benefit the Santa Ana speckled dace. Activities may
include mechanical and chemical control, provided these activities are
conducted in a manner consistent with Federal and applicable State
laws. Activities may also include removal or eradication of nonnative
animal species, including, but not limited to, catfish, bass, crayfish,
and bullfrogs; however, the Service must approve the use of
electrofishing for eradication of predators prior to implementation.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-17237 Filed 8-12-24; 8:45 am]
BILLING CODE 4333-15-P

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