Proposed Rule2024-31756
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Clear Lake Hitch
Primary source
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Published
January 16, 2025
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the Clear Lake hitch (Lavinia exilicauda chi), a freshwater fish subspecies in the North American minnow family that is restricted to the Clear Lake watershed in Lake County, California, as a threatened species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list the Clear Lake hitch. After a review of the best available scientific and commercial information, we find that listing the Clear Lake hitch is warranted. Accordingly, we propose to list the Clear Lake hitch as a threatened species with protective regulations issued under section 4(d) of the Act ("4(d) rule"). If we finalize this rule as proposed, it would add the Clear Lake hitch to the List of Endangered and Threatened Wildlife and extend the Act's protections to this subspecies.
Full Text
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Proposed Rules]
[Pages 4916-4941]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31756]
[[Page 4915]]
Vol. 90
Thursday,
No. 10
January 16, 2025
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Clear Lake Hitch; Proposed Rule
Federal Register / Vol. 90 , No. 10 / Thursday, January 16, 2025 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2024-0161; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH84
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Clear Lake Hitch
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Clear Lake hitch (Lavinia exilicauda chi), a freshwater fish
subspecies in the North American minnow family that is restricted to
the Clear Lake watershed in Lake County, California, as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the Clear Lake hitch. After a review of the best available
scientific and commercial information, we find that listing the Clear
Lake hitch is warranted. Accordingly, we propose to list the Clear Lake
hitch as a threatened species with protective regulations issued under
section 4(d) of the Act (``4(d) rule''). If we finalize this rule as
proposed, it would add the Clear Lake hitch to the List of Endangered
and Threatened Wildlife and extend the Act's protections to this
subspecies.
DATES: We will accept comments received or postmarked on or before
March 17, 2025. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by March 3, 2025.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R8-ES-2024-0161,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2024-0161, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <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> at Docket No. FWS-R8-ES-2024-0161.
FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Sacramento, CA 95825; telephone 916-414-6700. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
Please see Docket No. FWS-R8-ES-2024-0161 on <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, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range).
If we determine that a species warrants listing, we must list the
species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Clear Lake hitch meets the Act's definition of a threatened species;
therefore, we are proposing to list it as such. Listing a species as an
endangered or threatened species can be completed only by issuing a
rule through the Administrative Procedure Act rulemaking process (5
U.S.C. 551 et seq.).
What this document does. We propose to list the Clear Lake hitch as
a threatened species with a rule issued under section 4(d) of the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the Clear Lake hitch meets
the definition of a threatened species due to the following threats:
habitat loss, degradation, and modifications (Factor A), predation
(Factor C), competition (Factor E), and the effects of climate change
(Factor E).
Section 4(a)(3) of the Act requires that the Secretary of the
Interior (Secretary), to the maximum extent prudent and determinable,
concurrently with listing designate critical habitat for the species.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat. At this time, critical habitat for the Clear
Lake hitch is not determinable.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The Clear Lake hitch's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the subspecies,
[[Page 4917]]
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional areas occupied by the subspecies;
(d) Historical and current population levels, and current and
projected trends; and
Past and ongoing conservation measures for the subspecies, its
habitat, or both.
(2) Threats and conservation actions affecting the subspecies,
including:
(a) Factors that may be affecting the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this subspecies; and
(c) Existing regulations or conservation actions that may be
addressing threats to this subspecies.
(3) Additional information concerning the historical and current
status of this subspecies.
(4) Information to assist with applying or issuing protective
regulations under section 4(d) of the Act that may be necessary and
advisable to provide for the conservation of the Clear Lake hitch. In
particular, we seek information concerning:
(a) The extent to which we should include any of the section 9
prohibitions in the 4(d) rule; or
(b) Whether we should consider any additional exceptions from the
prohibitions in the 4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <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 Clear Lake hitch is
endangered instead of threatened, or we may conclude that the
subspecies does not warrant listing as either an endangered species or
a threatened species. In addition, we may change the parameters of the
prohibitions or the exceptions to those prohibitions in the 4(d) rule
if we conclude it is appropriate in light of comments and new
information received. For example, we may expand the prohibitions if we
conclude that the protective regulation as a whole, including those
additional prohibitions, is necessary and advisable to provide for the
conservation of this subspecies. Conversely, we may establish
additional exceptions to the prohibitions in the final rule if we
conclude that the activities would facilitate or are compatible with
the conservation and recovery of the subspecies. In our final rule, we
will clearly explain our rationale and the basis for our final
decision, including why we made changes, if any, that differ from this
proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On September 25, 2012, we received a petition from the Center for
Biological Diversity to list the Clear Lake hitch as an endangered or
threatened species under the Act and to designate critical habitat. The
Service issued a 90-day finding on April 10, 2015 (80 FR 19259),
stating that the petition presented substantial information that
listing the Clear Lake hitch may be warranted and initiating a status
review of the subspecies. On December 3, 2020, we published our 12-
month finding that the Clear Lake hitch was not warranted for listing
under the Act (85 FR 78029).
The Center for Biological Diversity filed a complaint in the
Northern District of California on August 17, 2021, challenging our 12-
month not-warranted finding. By stipulated settlement agreement
approved by the court on April 14, 2022, the Service agreed to submit
to the Federal Register a new 12-month finding for the Clear Lake hitch
on or before January 12, 2025 (Center for Biological Diversity v. U.S.
Fish and Wildlife Service, et al., No. 3:21-cv-06323-RS (N.D. Cal.)).
Peer Review
In 2020, a species status assessment (SSA) team prepared an SSA
report (version 1.0; Service 2021, entire) for the Clear Lake hitch's
12-month finding (85 FR 78029; December 3, 2020). The SSA team was
composed of Service biologists, in consultation with other species
experts. In 2024, the SSA report was updated with new information
(e.g., survey data, life history information, conservation actions)
(version 2.0; Service 2024, entire). The SSA report (version 2.0;
Service 2024, entire) represents a compilation of the best scientific
and commercial data available concerning the status of the subspecies,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the subspecies. species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act (<a href="https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf">https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf</a>), we solicited independent
[[Page 4918]]
scientific review of the information contained in the Clear Lake hitch
SSA report (version 2.0; Service 2024, entire). We sent the SSA report
to three independent peer reviewers and we received responses from two
reviewers. Results of this structured peer review process can be found
at <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 two
peer reviewers on the draft SSA report, version 2.0. We reviewed all
comments we received from the peer reviewers for substantive issues and
new information regarding the information contained in the SSA report.
The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions, including edits to improve the overall report. Otherwise,
no substantive changes to our analysis and conclusions within the SSA
report were deemed necessary, and peer reviewer comments are
incorporated in version 2.1 of the SSA report (Service 2024, entire).
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
Clear Lake hitch is presented in the SSA report (version 2.1; Service
2024, pp. 16-36) and in the previous 12-month finding (85 FR 78029;
December 3, 2020). The Clear Lake hitch is a medium-sized freshwater
fish subspecies classified in the Lavinia genus in the Leuciscidae
family (Service 2024, p. 16). The subspecies is endemic to the Clear
Lake watershed in the northern section of the California Coast Ranges.
Historically, Clear Lake hitch occurred in numerous lakes and ponds
found throughout the Clear Lake watershed, including Clear Lake,
Thurston Lake, Upper Blue Lake, Lower Blue Lake, and Lampson Pond.
During the spring, the Clear Lake hitch could also be found spawning in
the numerous tributaries to these larger waterbodies, including Kelsey,
Scott, Middle, Adobe, Seigler Canyon, Manning, Cole, Morrison, and
Schindler creeks (figure 1). The subspecies still occurs in Clear and
Thurston Lakes throughout the year until the spring, when reproductive
adults migrate into tributaries to spawn. Annual surveys conducted in
Clear Lake have shown that there are fluctuations in the estimated
abundances from year to year. The Clear Lake hitch was thought to be
extirpated from the Blue Lakes, but observations and fish rescue
efforts in 2022 show evidence of hitch in both Upper Blue Lake and
Lower Blue Lake (Ewing 2022a, entire; Santana 2022, entire). It is
unclear whether Lampson Pond still exists (B. Ewing in litt. 2020);
therefore, the status of the Clear Lake hitch in Lampson Pond is
unknown. All of the described waterbodies besides Thurston Lake were
hydrologically connected in the past, and it appears that Thurston Lake
and its tributary, Thurston Creek, have always been isolated from the
other waterways (B. Ewing in litt. 2020; P. Windrem in litt. 2020).
[[Page 4919]]
[GRAPHIC] [TIFF OMITTED] TP16JA25.000
Within the lacustrine habitats, the subspecies can be found in
either the littoral zone (nearshore) as juveniles or the limnetic zone
(sun-lit, offshore open water) as adults. During extreme drought
conditions, the only successful reproduction may be within the lakes.
Nonnative vegetative growth along the lake's shoreline can outcompete
the growth of important native wetland plant species, such as tule.
Nonnative plant species, such as Himalayan blackberry (Rubus
armeniacus), growing along the tributaries can become so overgrown that
they become passage barriers or they outcompete native species such as
willows and cottonwoods.
Clear Lake hitch begin to migrate into spawning tributaries when
there is sufficient runoff, typically between February and May, and
sometimes into June if flows are sufficient (Macedo 1994, p. 2;
California Department of Fish and Wildlife (CDFW) 2014, p. 1). Eggs are
deposited on fine to medium-sized gravel that is along the margin or
mid-channel of the stream (Shapovalov 1940 as cited in Murphy 1948b, p.
102; Kimsey 1960, p. 211; CDFW 2014, p. 8), where they hatch into
larval fish called fry. Fry stay in the streams anywhere between 11 to
152 days, migrating to the lake once stream waters diminish (Murphy
1948b, pp. 105, 106, 109; Swift 1965, pp. 75, 77-79; Moyle et al. 1995,
p. 154; Feyrer et al. 2019a, p. 1693). Juvenile hitch less than 2
inches (in., 50 millimeters (mm)) standard length (SL, length of a fish
measured from the tip of their mouth/snout to the end of the tail,
excluding the caudal (tail) fin) are found within the nearshore habitat
of the lake, where they utilize stands of tule (Schoenoplectus acutus)
and other submerged aquatic vegetation for cover and feed on various
diet items, including insects such as the Clear Lake gnat (Chaoborus
astictopus), Daphnia and other planktonic crustaceans, and chironomid
midges.
The Clear Lake hitch females are known to grow larger than males
(Geary 1978, pp. 7, 9), and larger females produce more eggs (average
annual fecundity is 36,000 eggs, with a range of 9,000-63,000) (Geary
and Moyle 1980, p. 387). Males are sexually mature within their first
or second year, whereas females are sexually mature in their second or
third year (Murphy 1948b, pp. 103-104, 109; Moyle et al. 1995, p. 153).
Hitch are thought to live 4 to 6 years based on scale analysis, but it
is possible some individuals can live longer (Moyle 2002, p. 138; CDFW
2014, p. 8).
There is uncertainty around where current reproduction and
recruitment
[[Page 4920]]
are successfully occurring, and whether other small waterbodies
upstream of Clear Lake are supporting the Clear Lake population. In
2017 and 2018, 280 and 297 hitch were captured, respectively. The Clear
Lake hitch was the fifth most abundant species/subspecies collected
over the course of the 2017 survey and the most abundant species/
subspecies captured during the 2018 effort (USGS 2018, p. 8). However,
the number of hitch captured during the 2019, 2021, and 2022 surveys
drastically declined to only 76, 40, and 6 individuals, respectively.
In 2023, the number of individuals captured increased to 304
individuals and included multiple stage classes (Clear Lake Hitch
Summit Agenda and Presentations 2023, p. 84; Palm et al. 2023, entire).
There is a working hypothesis that the increase in the number of hitch
seen in 2023 is due to hitch presence in smaller lakes in the watershed
(e.g., Blue Lakes, Tule Lake). The theory is that small populations of
the Clear Lake hitch are successfully reproducing in these other
waterbodies, and during a wet year, like the historically wet year in
2023, individuals were washed from these smaller lakes into Clear Lake.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at <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 consider the species' life-
history characteristics, threat-projection timeframes, and
environmental variability. In other words, the foreseeable future is
the period of time over which we can make reasonably reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction, in light of the conservation purposes of the Act.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the Clear Lake hitch's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the Clear Lake hitch's ecological requirements for survival
and reproduction at the individual, population, and subspecies levels,
and described the beneficial and risk factors influencing the
subspecies' viability.
The SSA process can be categorized into three sequential stages.
During the
[[Page 4921]]
first stage, we evaluated the individual Clear Lake hitch's life-
history needs. The next stage involved an assessment of the historical
and current condition of the subspecies' demographics and habitat
characteristics, including an explanation of how the subspecies arrived
at its current condition. The final stage of the SSA involved making
predictions about the subspecies' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of the Clear Lake hitch to sustain populations
in the wild over time, which we then used to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R8-
ES-2024-0161 on <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 Clear
Lake hitch and its resources, and the threats that influence the
subspecies' current and future condition, in order to assess the
subspecies' overall viability and the risks to that viability.
Additional information regarding the subspecies' needs can be found
in the SSA report (Service 2024, pp. 24-36).
Subspecies Needs
The Clear Lake hitch has four life stages: egg/embryo, larvae/fry,
juveniles, and adults. Below, we assess the best available information
to identify the specific habitat components needed to support
individual fitness at all four life stages for the Clear Lake hitch.
Each life stage requires different environmental and habitat components
according to the different habitats used throughout the species'
lifetime for spawning, feeding, and sheltering. Once fertilized, Clear
Lake hitch eggs require adequate stream flow to stay submerged and
oxygenated; fine to medium-sized, clean gravel along the margin or
within the mid-channel of the stream to hold position during
development; and presumably temperatures between 55.4 and 64.4 degrees
Fahrenheit ([deg]F) (13 and 18 degrees Celsius ([deg]C)) for successful
development (Shapovalov 1940 in Murphy 1948b, p. 102; Kimsey 1960, p.
211; Swift 1965, pp. 75, 77; Moyle et al. 1995, p. 154; Moyle 2002, p.
138; CDFW 2014, p. 8; Feyrer 2019a, p. 227). To initiate hatching,
water temperatures must be maintained at 59 to 71.6 [deg]F (15 to 22
[deg]C) for multiple days (Swift 1965, pp. 75, 77; Moyle 2002, p. 138).
Newly hatched larvae/fry have a small yolk sac that they require
for nourishment until they are able to swim freely and capture aquatic
invertebrate prey (Kimsey 1960, p. 212). For cover and temperature
regulation, downstream migrating fry likely require instream and/or
overhanging streamside vegetation. The fry life stage requires adequate
stream flow to stay alive, and adequate flow needs to be maintained
until the young of year are able to migrate downstream into the lake
(Murphy 1948b, pp. 105, 106, 109; Swift 1965, pp. 75, 77-79; Moyle et
al. 1995, p. 154; Feyrer et al. 2019a, p. 1693).
Within the lake, Clear Lake hitch fry and juveniles require stands
of tule and/or other submerged aquatic vegetation to act as cover from
predators and to provide for invertebrate prey items, including
insects, planktonic crustaceans, and chironomid midges. Juveniles also
require the lake water to be of sufficient quality (i.e., well-
oxygenated (more than 2 milligrams per liter (mg/L) of oxygen) and
minimally contaminated) and for water temperatures to be 59 [deg]F (15
[deg]C) or greater for survival (Franson 2012, p. 15; CDFW 2014, p. 9).
Juvenile hitch transition to adulthood when they reach about 2 in (50
mm) and they move from the lake's nearshore habitat out into the open
water of the lake.
Adult Clear Lake hitch require a diet almost exclusively composed
of Daphnia, but also other zooplankton species and adult midges and
insects (Lindquist et al. 1943, p. 199; Geary 1978, pp. 17, 25; Geary
and Moyle 1980, p. 388; Moyle et al. 1995, p. 153; Moyle 2002, pp. 137-
138; Moyle et al. 2014, p. 3). Adult Clear Lake hitch also require
well-oxygenated (more than 2 mg/L of oxygen) and minimally contaminated
water within the lake to ensure survival (Franson 2012, p. 15; CDFW
2014, p. 9). Adult Clear Lake hitch are only found in the tributaries
during the spawning season. A reproductive adult that is attempting to
spawn requires an adequate amount of flow to migrate upstream to
appropriate spawning locations and downstream back to the lake, and
water temperatures between 55.4 and 64.4 [deg]F (13 and 18 [deg]C) to
trigger spawning activity (Swift 1965, pp. 75, 77; Moyle 2002, p. 138;
Feyrer 2019a, p. 227).
In addition to stream spawning, some reproductive adults spawn
within the lake (or ponds) instead of migrating into the lake
tributaries. Lake or pond spawning Clear Lake hitch have been
documented spawning in areas with only a mud substrate that contains no
gravel, so it is possible lake- or pond-spawning individuals do not
require gravel to successfully spawn (Kimsey 1960, p. 214; Geary 1978,
p. 22).
Threats
In assessing the Clear Lake hitch's viability, we describe the
threats acting on the subspecies and its habitat. We also provide a
description of historical and ongoing activities or regulations that
ameliorate the threats and provide conservation benefits to the
subspecies. The threats acting on the Clear Lake hitch include habitat
loss, degradation, and modification; predation; competition; mercury
mining; and the effects of climate change. Due to the different aquatic
habitats (lake and tributary) used by the subspecies, there are threats
acting on different life stages of the subspecies. These threats along
with other ongoing and future stressors acting on the species may act
synergistically to cause declines in resiliency across populations and
analysis units. An example includes the effects of climate change with
increased temperatures and aridity, may lead to more fires in the area.
Burned areas create more runoff into the lake and tributary systems,
further degrading habitat and affecting all life stages of the Clear
Lake hitch. We note here that Thurston Lake does not have the level of
threats acting on the subspecies that are affecting the hitch in Clear
Lake.
Habitat Loss, Degradation, and Modification
Habitat loss, degradation, and modification are affecting the
subspecies in both the tributary and lake systems. Changes to the Clear
Lake watershed have occurred since the mid-1800s. Various forms of past
mining activities, agricultural and urban development, pesticide use,
increased fire activity, past deforestation, and historical grazing
practices have all contributed to the degradation of the Clear Lake
watershed and are also the cause of toxic cyanobacteria blooms and
periodic fish kills in the lake. The degradation of tributaries has
changed their hydrology, reducing the amount of water retained in the
streams over the Clear Lake hitch's spawning season. This loss of flow
earlier in the season and the presence of numerous passage barriers in
the tributaries have greatly reduced reproduction and early life stage
survival (egg, larvae) of the Clear Lake hitch. The conversion of
wetland habitats surrounding Clear Lake not only negatively impacted
the lake's water quality but also reduced the amount of rearing habitat
for any juvenile hitch that are able to migrate to the lake from their
natal stream. This loss of rearing habitat also reduces early
[[Page 4922]]
life stage survival (juvenile), further reducing the likelihood of
recruitment. The impacts to Clear Lake's water quality affect adult
hitch survival, especially when poor lake conditions result in large
fish kills.
The Clear Lake hitch relies on tributary habitat for spawning and
early rearing (Murphy 1951, p. 480). It is estimated that,
historically, the tributaries to Clear Lake ran until at least
September; currently, however, besides a few tributaries, most are
known to dry by early summer or late spring (Murphy 1951, p. 480; B.
Ewing in litt. 2020; Ewing 2020, pp. 3-5; Ewing 2021, pp. 6-7; Ewing
2022b, p. 7; B. Ewing in litt. 2024). A combination of activities
contributed, and are continuing to contribute, to the reduction in
tributary flow during the Clear Lake hitch's spawning season. Increased
fire activity and legacy effects from instream gravel removal and
deforestation have likely increased the rate of runoff within the
tributaries during the winter. For example, burned vegetation removes
the root systems that hold soil in place and, with subsequent rainfall,
increases runoff and sedimentation into the subspecies' habitat. Those
same factors, possibly in conjunction with both in-creek and
groundwater pumping for urban and agricultural uses, have greatly
reduced the amount of flow that actually makes it to the lake during
the summer (Murphy 1951, p. 480).
Gravel mining activities in the Clear Lake watershed first began in
the latter half of the 19th century and occurred in most of the
spawning tributaries to Clear Lake (Suchanek et al. 2003, pp. 1253-
1254; Thompson et al. 2013, p. 19). Gravel mining originally occurred
as scattered operations throughout the watershed until the early- to
mid-20th century, when operations became centralized within the creeks
(County of Lake 1992, p. 48; Richerson et al. 1994, p. III-19). This
time period coincides with improved automobile technology and increased
pressure to build more reliable roads (County of Lake 1992, p. 48). As
the human population within the county grew in the 1960s and 70s, new
houses and associated roads needed to be constructed to accommodate the
new residents. Since the instream gravel was available as a convenient
source of material, gravel was extracted from the tributaries and was
used as building material for both homes and roads (County of Lake
1992, p. 48; Richerson et al. 1994, p. VIII-150). Until the 1981
partial moratorium on instream gravel extraction, approximately 1
million metric tons of instream gravel was extracted from the watershed
(Richerson et al. 1994, pp. III-19-III-20; CDFW 2014, p. 29). Although
the amount of gravel mining within the Clear Lake tributaries has been
reduced, mining and extraction are still known to occur in areas where
the Clear Lake hitch occur, such as Scotts and Alley creeks (Murphy
1948b, p. 106; Richerson et al. 2008, p. A260; CDFW 2014, p. 29; B.
Ewing in litt. 2020).
Past gravel mining in tributaries not only removed spawning
substrate that the subspecies uses for reproduction and egg
development, but it also lowered streambeds and destabilized channels,
causing increased erosion, incision, and channelization. In addition,
large swaths of riparian vegetation were removed from along the
tributaries to allow access for gravel extraction, further exacerbating
the issues with erosion. The flushing of eroded material not only
negatively impacted tributaries by increasing the amount of suspended
sediments and silt within the creek, ultimately increasing turbidity in
some tributaries to zero visibility, but it also negatively impacted
the lake ecosystem when those sediments eventually were transported
into the lake (CDFG 1955, entire; Richerson et al. 1994, pp. III-19,
VIII-2; Service 2024, pp. 44-48; Suchanek et al. 2003, p. 1254; CDFW
2014, pp. 29, 45).
In addition to gravel mining, agricultural practices have impacted,
and still are impacting, the Clear Lake hitch's habitat. Agricultural
production in the Clear Lake area has been important since the mid-
1800s with crops that included apples, almonds, grapes, nectarines,
peaches, pears, plums, and prunes, many of which are still grown today
(Suchanek et al. 2003, p. 1256; U.S. Department of Agriculture (USDA)
2023, entire). Much of the land surrounding Clear Lake has been
converted from forest lands to agricultural use. Large-scale
deforestation and land conversion within the watershed began in the
mid-19th century. The large-scale forest removal within the Clear Lake
watershed increased the amount of erosion occurring in the tributaries,
contributing to bank incision within the tributaries and causing
increased sediment and nutrient transport into the lake (Suchanek et
al. 2003, pp. 1247-1248). Increased erosion and bank cutting decrease
the amount of time that water is retained within the tributaries, which
affects water quantity and flow needed by the subspecies.
Agricultural development is found throughout the watershed;
however, it is most concentrated in the southwestern area of the
watershed, primarily near Kelsey and Adobe creeks (USDA 2023, entire).
The presence of agricultural production in the watershed not only has
an impact on the amount of water flowing in the tributaries to Clear
Lake, but it likely also increases the amounts of contaminants, in the
form of pesticides and fertilizers, and sediment entering the lake.
Pesticides are used for agriculture production across the region.
Pesticides not only affect the habitat but may also affect certain life
stages of the Clear Lake hitch and affect the subspecies' prey species.
The reported application of pesticides on agricultural lands in the
region has increased from 2008 to 2021. In 2008, more than 589,500
pounds of different forms of chemicals used as pesticides were applied
in Lake County (California Pesticide Information Portal (CALPIP) 2019,
unpaginated). In 2021, that amount increased to almost 741,000 pounds
(CALPIP 2021, unpaginated). Pesticides are also known to be used for
illegal cannabis crops, and it is possible that pesticides associated
with illegal grows could drain into the Clear Lake watershed, further
exacerbating declining water quality conditions. The primary concerns
of pesticide effects on Clear Lake hitch are the high toxicity. Growers
can add these chemicals to their irrigation systems, causing the
chemicals to seep into the surrounding soil and waterways (California
Department of Pesticide Regulation 2021, p. 2; USDA 2023, entire).
Pesticides are known to cause fish casualties, growth delays, and
swimming abnormalities, making fish more susceptible to predation
(Baker 2018, pp. 2-3).
Fertilizers that get into waterways can cause nutrient imbalances
that affect oxygen levels in the water, causing cyanobacteria blooms
and fish kills (Baker 2018, p. 6). Another concern is water diversions
associated with these illegal cultivation sites, which can block fish
passage, change flow regimes, and cause other secondary effects (Baker
2018, p. 6). However, it is unknown what effect agricultural pesticides
or pesticides associated with illegal grows are having on the aquatic
environment in Clear Lake or if pesticides are being transported
through tributaries into the lake (Suchanek et al. 2003, p. 1252).
Herbicides Are Used To Control Nonnative Aquatic Vegetation in Clear
Lake
Komeen<SUP>TM</SUP> (copper sulfate) and SONAR<SUP>TM</SUP>
(fluridone) have been applied in the lake to control Hydrilla
verticillata, a highly invasive, submerged aquatic weed (Suchanek et
[[Page 4923]]
al. 2003, p. 1250; CDFW 2014, p. 32). Two herbicides were used to
target different parts of the plant; Komeen targets Hydrilla vegetative
growth, while SONAR treats the tubers (Suchanek et al. 2003, p. 1250).
SONAR is considered less toxic than Komeen because SONAR is a systemic
herbicide that is slowly absorbed in the vascular system; SONAR also
impacts similar non-target vegetation such as tule and other submerged
vegetation (Bairrington 2000, pp. 64-65; CDFW 2014, p. 32). Because
juvenile Clear Lake hitch require tule habitat for cover and prey, the
use of Komeen can indirectly impact the hitch by reducing the amount of
rearing habitat (CDFW 2014, p. 32). The use of the herbicide, SONAR, at
high concentrations may have an impact on early hitch development.
To meet the needs for agricultural production, crops require
sufficient water. Water extraction and the early drawdown of the
tributaries, in conjunction with habitat modifications throughout the
watershed, likely led to the extinction of the Clear Lake splittail
(Pogonichthys ciscoides), another stream-spawning native fish
restricted to the Clear Lake watershed (Moyle 2002, pp. 138-139; CDFW
2014, p. 27). The Clear Lake splittail spawned later in the season than
the Clear Lake hitch does, and, as the tributaries began to dry earlier
in the season, Clear Lake splittail young were not able to migrate to
the lake (Cook et al. 1966, p. 146; Moyle 2002, pp. 138-139; CDFW 2014,
p. 27).
Water extraction continues throughout the watershed today for
agricultural and domestic purposes. Both surface and ground water are
being diverted from Clear Lake tributaries (legally and illegally)
(CDFW 2014, p. 27), with the primary supply, about 60 percent, coming
from groundwater sources in an average year (County of Lake 2014,
entire; Clear Lake Hitch Summit Agenda and Presentations 2023, p. 18).
These particular diversions are legal extractions conducted under
riparian and water rights associated with land ownership. Surface water
is diverted via intake pumps, and groundwater is extracted via the
installation of shallow wells near the tributary channel where they
capture underflow (CDFW 2014, p. 27). In 2013 and 2014, water rights
users in Kelsey Creek used 85 and 134.5 million gallons of water,
respectively, as well as 31.4 million gallons in each of those years
from Adobe Creek. In addition, from 2008 to 2014, 18 private water
wells were permitted for installation along the two creeks. Although
this amount of water withdrawal is legally permissible, it is unknown
what effects this amount of water extraction is having on the hydrology
of these tributaries and the Clear Lake hitch (Big Valley 2015, p. 4).
Water extractions, both legal and illegal, are often cited as one
of the primary reasons for the reduction in the Clear Lake hitch's
population; however, although stream gauges are installed in some of
the tributaries and continue to be installed, studies on the effects
that water extraction is having on Clear Lake tributaries or the Clear
Lake hitch are still in initial stages (Clear Lake Hitch Summit Agenda
and Presentations 2023, pp. 63-72). The CDFW compared stream flow
conditions at the U.S. Geological Survey (USGS) gauge on Kelsey Creek
(USGS Station 11449500) and catch data from the early 1990s. Both 1990
and 1991 were considered dry water years with below average tributary
flow during the spring; however, the highest number of hitch were
captured during seining efforts during those years. Flow conditions
improved to average or above average for the following 3 years, but the
number of fish captured declined (CDFW 2014, p. 27). Clear Lake hitch
abundance varies from year to year due to a number of factors,
including streamflow. More data are needed to better understand the
relationship between streamflow and population numbers as well as the
effects that water extraction has on streamflow.
Historical land conversion was not only for the purposes of
agricultural crops but also for livestock. The effects of livestock on
the land can include overgrazing and the subsequent effects of
exacerbated erosion and water quality degradation. Although overgrazing
no longer appears to be occurring in the Clear Lake watershed, it was
an issue until the mid-20th century. Past overgrazing in the watershed
resulted in the loss of streamside vegetation, which decreased soil
stability and increased the rate of runoff within the creeks,
effectively reducing the amount of time water is retained within the
channel (Murphy 1948b, p. 106; Suchanek et al. 2003, p. 1257). Although
the amount of grazing pressure has decreased in the watershed, the
impacts of past practices are still contributing to the issues seen in
the watershed today.
Clear Lake hitch are affected by passage barriers that block the
ability of the fish to move up and downstream. The lack of adequate
tributary flow can act as a barrier to migrating fish, reducing the
amount of available spawning habitat, and leaving young stranded before
they can migrate to the lake. However, even when flow conditions allow
for migration, most of the tributaries in the watershed contain
physical barriers that prevent hitch passage, reducing the amount of
spawning and rearing habitat available.
The installation of dams, diversions, roadways, and crossings have
had a negative impact on migrating hitch by eliminating access to
portions of stream with suitable spawning habitat or impeding passage
during certain years until specific flow conditions (i.e., high flow)
are met (Suchanek et al. 2003, p. 1254; CDFW 2014, pp. 45, 69-70).
Using a variety of data sources, CDFW estimated that more than 92
percent of the Clear Lake hitch's historical 180 stream miles of
tributary habitat is currently blocked or has reduced access due to the
presence of barriers (CDFW 2014, pp. 24-25). In addition, since the
presence of a barrier on a spawning stream reduces the amount of
available spawning habitat, reproducing adults have to compete for
available spawning substrate. Fertilized eggs have been known to
accumulate just below a barrier to the point that they will die due to
oxygen deprivation (Robinson Rancheria 2015, p. 1).
Numerous dam structures can be found throughout the Clear Lake
watershed, including dams on Kelsey, Adobe, Highland Springs, and
Manning creeks. These dams were installed in the mid- to late 20th
century and were installed primarily for irrigation and recreation
(Suchanek et al. 2003, p. 1248). In addition, CDFW identified potential
barriers on Lyon's Creek, Scott's Creek, Seigler Canyon Creek, Clover
Creek, and Kelsey Creek (Ewing 2016a, entire). Additional barriers in
the watershed include flood and water infrastructure that are not
regularly maintained that may block hitch passage (CDFW 2014, p. 69).
Flood control projects have also contributed to increased nutrient and
sediment transport in the watershed by channelizing and armoring
tributaries with rip-rap and by reclaiming large portions of wetland
habitat that once surrounded the lake (CDFW 2014, p. 29). There are
almost 14 miles of levee structures that are maintained by the U.S.
Army Corps of Engineers (USACE) on Scotts, Middle, Clover, and Alley
creeks (USACE 2012, p. 3). The loss of wetland habitat and increased
nutrient and sediment transport further exacerbates water quality
issues within Clear Lake, likely reducing hitch survival. Further, the
loss of wetland habitat to install the flood projects reduced the
amount of rearing habitat for juvenile hitch, reducing the likelihood
of successful recruitment. The lake habitat for the Clear Lake hitch is
also affected by habitat loss, degradation, and modification through
wetland/tule habitat loss, cyanobacteria
[[Page 4924]]
(blue- green algae) blooms, and fish kills. Because of the impacts from
the historical land conversion, surrounding wetland habitats were lost,
essentially removing Clear Lake's natural filter. Over time, increasing
amounts of sediment and nutrients from the degraded tributaries were
transported directly into the lake, and nutrient inputs from
surrounding urban and agricultural development ended up in the lake.
This increase in nutrients and sediments entering Clear Lake degraded
its water quality, resulting in increased cyanobacteria blooms that
contributed to or caused periodic fish kills.
With the loss of the extensive tule expanses within the lake's
nearshore habitat, there has been an increase in the amount of
sedimentation and nutrients entering the lake (Prine et al. 1975, p.
21). Wetlands act as a filter for sediments and nutrients transported
from the tributaries into the lake and the loss of these large wetland
complexes directly surrounding the lake has had negative consequences
to Clear Lake's water quality (Richerson et al. 1994, pp. III-1, V-1,
VIII-1; Suchanek et al. 2003, p. 1255). One result from the wetland
loss and water quality impacts is blue-green algae blooms that occur in
Clear Lake from phosphorus input.
The blue-green algae, a cyanobacteria and not an actual alga, will
float to the surface of the lake during the day and can form large mats
or scums. These mats will either be broken down or re-submerged into
the lake via wind action or will deteriorate from sun exposure.
Phosphorus is found naturally in underlying sediments within the Clear
Lake watershed (Richerson et al. 1994, p. V-99), and the degradation of
tributaries have exposed those sediments, allowing for transport into
the lake during rain events. A major factor in the persistence and
formation of cyanobacteria blooms in Clear Lake relates to periods of
anoxia (deficiency of oxygen), and where phosphorus is released from
sediments (Florea et al. 2022, p. ii). Blue-green algae blooms can be
toxic to fish (Gorham 1960, p. 242; Prine et al. 1975, p. 23; Richerson
et al. 1994, p. III-9); however, it is unknown what impact they have on
the Clear Lake hitch.
Fires have occurred naturally in the Clear Lake watershed as part
of the ecological cycle; however, with Euro-American settlement in the
middle of the 19th century, widespread intentional burning occurred
throughout the watershed to clear brush or promote grass growth for
livestock grazing (Suchanek et al. 2003, pp. 1243-1245, 1246-1247).
Numerous fires have occurred in the Clear Lake area during the 20th
century, with several large ((10,000+ acres (ac), 4047 hectares (ha))
fires occurring directly in the watershed (Suchanek et al. 2003, pp.
1244, 1248). The fire seasons in California during 2017, 2018, and 2020
were some of the worst on record. The 2018 Mendocino Fire Complex, a
portion of which occurred in Lake County, was the third largest fire on
record in California (CalFire 2022a, entire). Past fire suppression
practices within the State of California have reduced the occurrence of
fire, but due to the accompanying fuel accumulation, these practices
have made fires more devastating when they do occur (Suchanek et al.
2003, p. 1247). Fire activity within the watershed results in increased
erosion and bank incision, which channelize the stream and increase
water turbidity; fire activity is likely to continue to increase within
the Clear Lake watershed (CalFire 2022b, entire). Channelization can
decrease the amount of time water is retained within the tributary
channel (Murphy 1948b, p. 106; County of Lake 1992, p. 13). A reduction
of flow in the tributaries during the spawning season can eliminate or
greatly reduce the likelihood for successful reproduction and/or
recruitment, and due to the Clear Lake hitch's very narrow range, the
effects of channelization can impact the subspecies' viability.
Summary of Habitat Loss, Degradation, And Modification
Habitat loss, degradation, and modification due to agricultural and
urban development, pesticide use, increased fire activity, and legacy
impacts from past mining activities, past deforestation, and historical
grazing practices will continue to affect the Clear Lake hitch at the
individual, population, and subspecies level into the future throughout
its range.
The Clear Lake hitch habitats that are affected include the
tributaries and lake habitat. Impacts to both habitat types will affect
the Clear Lake hitch by reducing survival and recruitment, which
reduces resiliency by decreasing the size of the overall population.
For the tributaries, the loss of consistent flow during the spawning
season is seen throughout the Clear Lake hitch's range. This influence
is affecting the hitch at the individual, population, and subspecies
level and is likely to continue into the future. The loss of consistent
tributary flow, loss of wetland/tule habitat, and reduced lake water
quality, has reduced, and will continue to reduce, population
resiliency by reducing reproductive success, early life stage survival,
and the likelihood of recruitment. Loss of resiliency may reduce the
Clear Lake hitch's overall representation and redundancy because fewer
individuals spawn in each of the tributaries and natal habitat types.
The reduction in resiliency may result in a reduction to the hitch's
overall representation and redundancy.
There are no existing regulatory mechanisms or management actions
that fully ameliorate habitat loss, degradation, and modification
within the watershed, primarily because much of the degradation
occurred in the past, although the effects are still occurring today
and will continue into the future. There are planned activities
associated with the Clear Lake watershed, the Middle Creek Flood Damage
Reduction and Ecosystem Restoration Project, that will benefit improve
water quality, increase available wetland habitat for the Clear Lake
hitch and mitigate some of the ongoing habitat loss, degradation, and
modification.
Construction of this project would greatly benefit juvenile hitch
by providing increased cover from predators and competitors, and
increased prey abundance The county's Clear Lake Shoreline Ordinance
has prohibited the destruction of tule on residential properties along
the shoreline around Clear Lake and requires full mitigation for any
tule habitat that is destroyed. This ordinance benefits the Clear Lake
hitch by providing a consistent amount of tule habitat for juveniles.
In addition, the county recently began a tule planting initiative that
informs the public about the importance of tule habitat and how to
plant tule (Lake County 2024a, entire).
Predation
Non-native fish introduced into Clear Lake for recreational or
biological control purposes are known to prey upon the Clear Lake hitch
and all introduced piscivorous (fish-eating) fish species in Clear Lake
are potential predators of Clear Lake hitch. Clear Lake hitch have been
found in the stomach contents of nonnative fish species in the Clear
Lake watershed including largemouth bass (Micropterus nigricans) and
channel catfish (Ictalurus punctatus; Macedo 1994, p. 5; Moyle et al.
1995, pp. 154 -155; Moyle et al. 2014, p. 10). Mississippi silversides
(Menidia audens) are also known to prey on larval fish, so it is likely
some predation of Clear Lake hitch larvae by silversides is occurring
in Clear Lake (Bennett and Moyle 1996, pp. 526, 529; Moyle et al. 2014,
p. 9-10). The nonnative species predation will
[[Page 4925]]
continue to affect the Clear Lake hitch at the individual, population,
and subspecies level into the future throughout its range. Nonnative
species predation pressure within Clear Lake impacts the hitch by
reducing survival and recruitment, which reduces resiliency by
decreasing the size of the overall population.
Predation pressure within the tributaries to Clear Lake impacts the
hitch by reducing survival, reproduction, and recruitment, which
further reduces resiliency by decreasing the size of the spawning
population in any given year and by reducing the overall population
altogether. This loss of resiliency may reduce the hitch's overall
representation and redundancy because it results in fewer individuals
spawning in each of the tributaries and natal habitat types.
Competition
Competition from other nonnative aquatic species affects the Clear
Lake hitch by reducing the available resources for breeding, feeding,
and sheltering. For example, largemouth bass (Micropterus nigricans)
feed on insects and zooplankton, directly competing with both juvenile
and adult hitch for food resources (Moyle and Holzhauser 1978, pp. 577-
578, 581). Threadfin shad (Dorosoma petenense) and Mississippi
silversides also compete with the Clear Lake hitch because they depend
on the same aquatic prey base (Anderson et al. 1986, entire;
Bairrington 2000, p. 33; CDFW 2014, p. 35). During years when
silverside or threadfin shad abundances are especially high, they could
reduce or deplete prey resources on which the hitch depends. A
comparison of hitch trend data and abundances of silversides and
threadfin shad suggests there may be a correlation between their
abundances (CDFW 2014, p. 35), but more detailed studies need to be
completed. There are currently no regulatory mechanisms that address
competition by non-native species.
Mercury Mining Contaminants
Historically, small-scale commercial mining operations along the
shores of Clear Lake occurred in 1864 and 1865. Originally, the mining
included borax and sulfur (Suchanek et al. 2003, p. 1253). Large-scale
commercial sulfur extraction along the eastern shore of Clear Lake
began in 1865, when the Sulphur Bank Mercury Mine was established. The
sulfur mining operation switched over to mercury mining in 1873, after
mercury sulfide deposits were found beneath their sulfur source. Early
extraction methods were not as destructive; however, in 1927, the mine
began to implement open- pit mining at a large-scale level and would
bulldoze any waste products into the lake (Richerson et al. 2008, p.
A259). The company continued to mine sporadically throughout the 1950s
until the Sulphur Bank Mercury Mine was officially closed in 1957,
although waste continued to contaminate the lake well into the 1990s
(Suchanek et al. 2008, p. A153).
The highest concentrations of mercury were found in the Oaks Arm
area, near the southeastern area of the lake, which is where the
Sulphur Bank Mercury Mine is located; however, elevated mercury levels
have also been detected lake-wide (Richerson et al. 2008, p. A271). The
use of heavy ground-moving equipment associated with the open-pit
mining also likely contributed to the algal blooms seen in the lake;
this equipment can excavate and disturb large swaths of sediments,
which increase nutrient runoff (Richerson et al. 2008, p. A260).
Mercury and other mining-associated contaminants have entered the
lake via erosion of waste piles, purposeful dumping/bulldozing of mine
waste, atmospheric deposition, and subsurface drainage (Richerson et
al. 2008, p. A275). Since 1992, the Environmental Protection Agency
(EPA) has implemented numerous remediation projects to address the
continued mercury contamination originating from the Sulphur Bank
Mercury Mine. The remediation projects include the removal of waste
rock piles that erode and discharge mercury, removal of contaminated
soil from residential areas, installation of diversions to prevent
contaminated water and sediments from entering Clear Lake, closure of
three abandoned geothermal wells, capping of mine waste used to build
an old road, and installation of two test sediment covers to contain
mercury- contaminated sediment within Clear Lake (Richerson et al.
2008, pp. A265, A275; EPA 2019, entire).
The Sulphur Bank Mercury Mine became an EPA Superfund Site in 1990,
due to the elevated mercury levels found in Clear Lake's larger
piscivorous fish (Curtis 1977, p. 1; Suchanek et al. 2003, p. 1253;
Thompson et al. 2013, p. 19). Elevated levels of mercury in fish can
significantly impair reproductive success; however, effects can vary
based on a multitude of factors, including species and life stage, and
there are no specific studies for the Clear Lake hitch (Crump and
Trudeau 2008, pp. 902, 904; CDFW 2014, pp. 32-33). Mercury
concentrations found in developed hitch caught in Clear Lake in 2019
and 2020 averaged 0.14 milligrams per kilogram (mg/kg) (Pierce et al.
2022, entire), which exceed the Regional Water Quality Control Board's
proposed target of 0.09 mg/kg for fish in trophic level 3, which
includes the Clear Lake hitch (CEPA 2008, p. 1). Although these levels
may exceed the Regional Water Quality Control Board's target, the best
available science does not provide the lethal concentration of mercury
specific for Clear Lake hitch or levels that may cause acute or chronic
health effects to the Clear Lake hitch, or whether they are currently
exposed to those levels in Clear Lake. The threat of mercury mining
contaminants impacts the Clear Lake population and has not affected the
Thurston Lake population.
Climate Change
Climate change affects the Clear Lake hitch and its habitat due to
shifts in normal weather patterns. Changes in temperature and
precipitation regimes can affect water quality and quantity for the
subspecies and can exacerbate other effects, such as increased drought
and fire frequency. Annual average air temperatures in California have
increased by 1.5 [deg]F (0.83 [deg]C) since the beginning of the 20th
century (Bales 2013, p. 2).
Temperatures are expected to continue to increase in California's
North Coast Region, which includes Lake County (Grantham 2018, entire).
Drought conditions within the Clear Lake watershed can have detrimental
effects on the Clear Lake hitch by reducing the amount of flow within
the tributaries over the spawning season, reducing water quality in the
lake, and possibly reducing emergent vegetation growth in the lake. In
1946 and 1947, there was almost a complete lack of spawning runs due to
the lack of water flow in the tributaries (Murphy 1948b, p. 105).
However, the hitch's ability to spawn along the lake shore provides an
alternative to tributary spawning for at least a small proportion of
the population.
More arid conditions can impact the Clear Lake hitch by reducing
the amount of water that enters, and the time period that water is
retained within, the tributaries and wetland habitats that the hitch
requires for spawning and rearing. Increases in aridity also reduce
wetland/emergent vegetation growth, which the hitch requires for
rearing and for cover from predators. All of these factors can impact
the reproductive success and recruitment of the hitch; these factors
could also reduce the hitch's survival if flows drop too drastically in
the tributaries and wetland habitats, or if
[[Page 4926]]
hitch are subject to increased predation due to a reduction in cover
from aquatic vegetation.
A reduction of flow in the tributaries during the spawning season
can eliminate or greatly reduce the likelihood for successful
reproduction and/or recruitment, and due to the Clear Lake hitch's very
narrow range, the effects of drought will impact the entire subspecies.
The ability to spawn along the shore provides for some redundancy
within each population, but it is unknown whether shore spawning would
be able to support a viable population in the lakes over the long term.
Having a longer lifespan (4 to 6+ years) is likely an adaptation to
variable environmental conditions, but prolonged droughts can have
devastating effects on the overall population, especially in
conjunction with other factors that are currently acting on the Clear
Lake hitch.
There have been numerous efforts over the last 10 years to save
Clear Lake hitch that become stranded in pools within the tributaries
when the tributaries began to rapidly dry up. In March 2014, 197
individuals were rescued from two pools within Adobe Creek, and the
surviving fish were released into Kelsey Creek (Ewing 2014a, entire). A
few months later, in June 2014, more than 1,400 hitch were rescued from
Cooper Creek and 389 hitch were rescued from Adobe Creek when the flow
within those creeks began to rapidly drop. The surviving individuals
from both rescues were released into Rodman Slough and at the Konocti
Vista Casino boat ramp, respectively (Ewing 2014e, pp. 3, 6).
Unfortunately, during visual spawning surveys that same year,
approximately 300 adult hitch were found dead in a portion of Adobe
Creek that had dried (Ewing 2014c, p. 7).
During the spring of 2018, numerous young of year were stranded in
a pool within Cole Creek when the water flow began to rapidly drop. The
creek no longer had continuous flow into the lake, and the small pool
where the fish were stranded would have eventually dried, killing all
of the 3,100+ young fish. Fortunately, members of Robinson Rancheria
and CDFW were able to rescue the fish and transport them for release at
Clear Lake State Park, which is located where Cole Creek enters the
lake (Ewing 2018a, p. 1). In April 2022, 268 individuals were rescued
from two pools within Adobe Creek and transported to Konocti Casino
Harbor on Clear Lake where they were released (Ewing 2022a, p. 1). On
August 8, 2022, 295 hitch were rescued from a pool off of Cooper Creek;
the rescued hitch were translocated to Upper Blue Lake for release
(Santana 2022, p. 2). The effects of climate change will continue to
affect both Clear Lake hitch populations, Clear Lake and Thurston Lake.
Regulatory mechanisms and management actions that are or could
potentially provide some protection from the effects of climate change
include the California Global Warming Solutions Act. This Act addresses
climate change by reducing greenhouse gas emissions within California.
There are no regulatory mechanisms or management actions that fully
address the effects of the climate change.
Synergistic Effects
Multiple influencing factors can act on a species or its habitat at
the same time, which can result in impacts that are not accounted for
when factors are analyzed separately. Factors that appear minor when
considered alone may have greater impacts on individuals, populations,
or habitat when analyzed in combination with other factors.
The Clear Lake hitch evolved in Lake County, California, which has
always had a highly variable climate with natural periodic droughts.
However, the degradation and loss of water retention within their
spawning streams and the loss of large stretches of suitable spawning
habitat due to various instream barriers has likely reduced
reproductive success and recruitment. During drought conditions this
can reduce or eliminate all tributary- based spawning in a given year.
If drought conditions persist over multiple years, stream- based
reproduction can also be reduced or eliminated for multiple years.
Furthermore, climate change projections show the Clear Lake area will
experience more varied precipitation and higher air temperatures during
the spring, which could result in even less water flow being retained
within the tributary streams during the hitch's spawning season (Pierce
et al. 2013, pp. 842, 844, 848-850. Although the hitch has the ability
to spawn within the lake, it is unknown whether that method of
reproduction would be able to sustain a viable population of hitch in
Clear Lake.
Additionally, groundwater extraction for agriculture and other uses
likely affects the Clear Lake hitch and its habitat, particularly
combined with other chronic threats, such as habitat loss, degradation,
and modification along with climate change that are synergistically
acting on the subspecies. Water extraction in the summer is likely to
lower the water level in pool habitat that acts as refugia for the
subspecies in disconnected tributaries until those tributaries become
reconnected by spring rains. It is the loss of this pool habitat that
affects the Clear Lake hitch resiliency.
The combination of wetland habitat loss and drought can increase
predation pressure and competition. Past habitat loss has left only a
small proportion of wetland habitat surrounding Clear Lake and drought
conditions can reduce the amount of emergent vegetation growth within
those remaining wetland habitats. This reduction in emergent vegetative
growth reduces the amount of cover the hitch uses to hide from
predators, increasing predation pressure. It can also increase
competition as more fish concentrate into this limited habitat type.
Conservation Efforts and Regulatory Mechanisms
The Clear Lake hitch is protected through existing regulatory
mechanisms and management actions that result in conservation of the
subspecies or its habitat or both. Additional actions from Tribes and
other interested groups also provide a benefit to the subspecies.
Below, we present some of the ongoing efforts that provide conservation
benefits to the Clear Lake hitch or its habitat or both from Federal,
State, Tribal, and local regulations and management plans.
I. Federal
U.S. Forest Service (USFS)
The Clear Lake hitch has been designated a USFS sensitive species.
Species identified as sensitive by the USFS are species in which
population viability is a concern, as evidenced by significant current
or predicted downward trends in population numbers or density, or
significant current or predicted downward trends in habitat capability
that would reduce a species' existing distribution, or both. The
designation of sensitive species ensures USFS: assists States,
including California, in achieving their goals for conservation of
endemic species; as part of the process under the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), reviews
programs and activities, through a biological evaluation, to determine
their potential effect on sensitive species; avoids or minimizes
impacts to species whose viability has been identified as a concern; if
impacts cannot be avoided, analyzes the significance of potential
adverse effects on the population or its habitat within the area of
concern and on the species as a whole; establishes management
objectives in cooperation with the States when projects on
[[Page 4927]]
National Forest System lands may have a significant effect on sensitive
species population numbers or distributions; and establishes objectives
for Federal candidate species, in cooperation with the Service or
National Marine Fisheries Service, and the States. Most of the Clear
Lake hitch's range is on private land and only the headwaters of a few
tributaries to the east of Clear Lake fall within USFS lands.
II. State
California Endangered Species Act (CESA)
On August 6, 2014, the CFGC determined that the Clear Lake hitch
warranted listing as a threatened species under the CESA due to the
present or threatened modification or destruction of the subspecies'
habitat, predation on and competition with the hitch, and the
anticipated impacts of climate change (CDFW 2014, pp. 1-2). Section
2067 of the California Fish and Game Code defines a ``threatened
species'' as a native species or subspecies of bird, mammal, fish,
amphibian, reptile, or plant that, although not presently threatened
with extinction, is likely to become an endangered species in the
foreseeable future in the absence of the special protection and
management efforts required by the State. As a threatened species under
the CESA, the take of Clear Lake hitch individuals is prohibited unless
the take is authorized by a State-issued permit.
However, CESA regulations only apply to the take of individuals
(i.e., they do not apply to the destruction or modification of
habitat). It should be noted that California's definition of take (see
section 86 of the California Fish and Game Code) is not the same as the
Act's definition of take (16 U.S.C. 1532(19)).
California Environmental Quality Act (CEQA) of 1970
The CEQA does not regulate land use but requires all local and
State agencies in California to avoid or minimize environmental damage,
where feasible, during the course of proposed projects. The CEQA
provides protection for species that are State-listed or federally
listed as endangered, threatened, or rare. Compliance with the CEQA may
be required for watershed restoration work and any restoration work
that requires a ``lake or streambed alteration agreement'' (also known
as a ``1600 agreement''; see sections 1600-1616 of the California Game
and Fish Code).
Sustainable Groundwater Management Act (SGMA)
The SGMA is a California State law that provides a framework for
sustainable groundwater management in California. Under section
10933(b) of the California Water Code, groundwater basins throughout
the State have been classified into four categories of prioritization
(high, medium, low, very low). Phase 1 of the categorization process
was finalized in January 2019, and 458 basins were prioritized during
that phase. Fifty-seven basins were categorized under phase 2, which
was finalized on December 17, 2019 (DWR 2020, p. AD-3). The SGMA
requires water agencies and governments of high- priority and medium-
priority basins to reduce overdraft and bring groundwater basins into
balance. The State of California ensures the SGMA goals are met as
planned.
Several groundwater basins in the Clear Lake watershed were
prioritized during the phase 1 prioritization. The Big Valley basin to
the southwest of Clear Lake received a medium prioritization, whereas
the other eight basins in the watershed (Scotts Valley, Upper Lake
Valley, Middle Creek, Long Valley, High Valley, Clear Lake Cache
Formation, Burns Valley, and Lower Lake Valley) were given a low
priority. The high- priority and medium-priority basins will be managed
by a group of local agencies, referred to as ``groundwater
sustainability agencies,'' and they will be tasked with reaching
sustainability in their basin within 20 years of implementing their
groundwater sustainability plans. Groundwater sustainability agencies
have been formed for the Big Valley and Scotts Valley basins, and a
groundwater sustainability plan was developed for the Big Valley basin
and published in January 2022 (DWR 2019a, entire; DWR 2019b, entire;
DWR 2019c, entire; DWR 2022, entire). Reducing overdraft from
groundwater pumping in the Big Valley basin could improve flow
conditions in Thompson Creek, Adobe Creek, Kelsey Creek, Cole Creek,
McGaugh Slough, and Manning Creek and could provide sufficient water
quantity for the Clear Lake hitch to traverse the tributaries during
their spawning season.
III. Local
Clear Lake Integrated Watershed Management Plan (CLIWMP)
The local resource conservation districts developed CLIWMP to
document the historical and current conditions of the Clear Lake
watershed and any management actions that have been, or are currently
being, implemented. Actions to enhance and/or protect the watershed are
then identified using that background information and timeframes for
each action are described. The CLIWMP describes specific implementation
actions needed to create an environmentally and economically healthy
watershed, both for the benefit of the existing local community and for
future generations (County of Lake et al. 2010a, entire).
Implementation of the actions described in the CLIWMP would benefit the
Clear Lake hitch by increasing the amount of wetland habitat used for
rearing, improving fish passage within the tributary streams, and
restoring degraded tributary stream and lake habitats. In addition to
the CLIWMP, the local conservation districts also developed watershed
assessments for Scotts, Middle, and Kelsey creeks. The purpose of those
assessments is similar to the CLIWMP; they document the historical and
current conditions of those watersheds and any management actions
implemented. The assessments will aid in educating watershed users and
landowners on the condition of that particular watershed, the
management and restoration actions that need to be implemented to
improve conditions, and how the conditions of those particular
watersheds impact the condition of Clear Lake (County of Lake et al.
2010b, entire; County of Lake et al. 2010c, entire; County of Lake et
al. 2010d, entire). Aggregate Resources Management Plan
Lake County developed an Aggregate Resources Management Plan
(County of Lake 1992, entire) to address concerns about the impacts of
gravel mining on the watershed. The plan describes the policies
regarding mining in specific areas, identifies areas deemed as suitable
for future mining projects, and informs the public about mining in Lake
County. The plan calls for a moratorium on mining in certain creeks and
limits mining activities to certain areas (County of Lake 1992, pp. 83-
86). The regulation of gravel mining in the county has reduced the rate
of erosion in the tributaries and increased the amount of riparian
habitat along the stream channels, where the Clear Lake hitch occurs.
Although instream sources of gravel are no longer the primary source of
aggregate in Lake County because gravel is now acquired from other
sources, illegal gravel mining or extraction has been known to occur in
the watershed (CEPA 2008, pp. 8, 89; B. Ewing in litt. 2020).
[[Page 4928]]
Middle Creek Flood Damage Reduction and Ecosystem Restoration Project
The Middle Creek Flood Damage Reduction and Ecosystem Restoration
Project (Middle Creek Project) is both a flood risk reduction project
for urban and agricultural areas along the northern end of Clear Lake
and an ecosystem restoration project that will improve degraded wetland
habitat and water quality in Clear Lake. The Middle Creek Project area
was once approximately 1,400 ac (567 ha) of wetland habitat that was
lost in the early 1900s through the construction of levees and
conversion to agricultural use.
Because these levees are no longer functional and there is an
urgent need to restore surrounding wetland habitats to improve the lake
and the watershed, Lake County requested USACE assistance to evaluate
the project in 1995. The Middle Creek Project consists of acquiring
reclaimed land, breaching existing levees to flood historical wetland
and floodplain areas, and reconnecting Scotts and Middle creeks. Final
NEPA and CEQA review was completed in 2003 and 2004, respectively, and
the Middle Creek Project was authorized under the Water Resources
Development Act of 2007 (33 U.S.C. 2201 et seq.). Federal funding for
the Middle Creek Project has not yet been appropriated to start project
design; however, funding for land acquisition has been acquired (USACE
2012, pp. 1-2; USACE 2023, entire).
The Middle Creek Project will benefit the Clear Lake watershed by
reducing the amount of sediment and nutrients entering Clear Lake,
improving overall water quality. It will also increase the existing
amount of wetland habitat within the Clear Lake watershed by
approximately 79 percent (USACE 2012, p. 3). If the Middle Creek
Project were to be implemented, it would benefit adult hitch by
improving the water quality of Clear Lake, which would likely reduce
the incidence of large fish kills. The Middle Creek Project would also
greatly benefit juvenile hitch by increasing the amount of wetland
habitat surrounding the lake, providing increased cover from predators
and competitors, and increased prey abundance.
Clear Lake Shoreline Ordinance
The destruction of woody species and tule on residential properties
along the shoreline around Clear Lake is prohibited under section 23-15
of the Clear Lake Shoreline Ordinance. These types of vegetation can be
managed via mowing, pruning, or trimming, but those activities cannot
result in the death of the plant. In addition, the ordinance applies a
no-net-loss program for commercial, resort, or public properties that
require mitigation for any areas of vegetation cleared by providing
replacement plantings (County of Lake et al. 2010a, pp. ES-16, 3-10;
CDFW 2014, p. 42). The measures associated with this ordinance benefit
the Clear Lake hitch by providing a consistent amount of tule habitat
for juveniles.
Clear Lake Hitch Conservation Strategy
A group including local Tribes, local government, State agencies,
and Federal agencies have been working on the development of a
conservation strategy for the Clear Lake hitch. The strategy, which is
still in draft form, documents the past and current status of the
subspecies, describes the negative influences that have resulted in the
subspecies' current status, and identifies the actions that will
address those negative influences in order to maintain a viable
population of Clear Lake hitch throughout the subspecies' range. This
conservation strategy will provide benefits to the subspecies through
public outreach regarding Clear Lake hitch conservation; it will also
direct funds to implement actions or projects that will specifically
benefit the hitch.
Clear Lake Hitch Task Force
In August 2022, Tribal leaders and members of the Tribal
Environmental Protection Agencies representing the Big Valley Rancheria
of Pomo Indians, Elem Indian Colony Pomo Tribe, Robinson Rancheria Band
of Pomo Indians, and the Habematolel Pomo of Upper Lake went before the
CFGC to express their concern for the status of the Clear Lake hitch.
To address these concerns and focus attention on the subspecies, the
Clear Lake Hitch Task Force (Task Force) was formed. The Task Force had
its first meeting on September 14, 2022, and consisted of Tribal and
CDFW representatives.
Since 2022, the Task Force has expanded to include the California
Department of Water Resources, State Water Resources Control Board,
Central Valley Regional Water Board, Lake County Water Resources
Department, Fish and Game Commission, California Natural Resources
Agency, Service, USGS, California Conservation Corps, Bureau of Land
Management (BLM), USACE, and USFS. The Task Force's mission involves
collaborative planning for long-term responses to the decline in the
Clear Lake hitch population, coordinating projects, identifying funding
sources, and facilitating information exchange among agencies. The Task
Force meets monthly and has held three summits to help relay
information and coordinate projects between different agencies.
IV. Miscellaneous
Lake County, the California Department of Transportation, USFS,
State Water Resources Control Board, and BLM have undertaken various
actions to prevent or reduce nutrients and contaminants from entering
Clear Lake, or to track the amount of water being used throughout the
watershed (West Lake Resource Conservation District, undated, entire;
CDFW 2014, p. 41). These actions include the Eightmile Valley Sediment
Reduction and Habitat Enhancement Project, for which BLM and the Scotts
Valley Band of Pomo Indians received a grant (CDFW 2014, p. 41). CDFW
has two conceptual area protection plans (CAPPs) that cover different
areas of the Clear Lake watershed. A CAPP allows different
organizations and agencies to apply for land acquisition funding
through the Wildlife Conservation Board. Both plans focus on the
protection of wetland and riparian habitats, which would benefit the
Clear Lake hitch during its early life stages (CDFW 2014, p. 42).
Lastly, the State Water Resources Control Board issued draft emergency
information order regulations for the Clear Lake watershed in September
2023. These regulations were adopted by the Water Resources Control
Board on December 6, 2023. These regulations allow the Water Resources
Control Board to gather information on water usage, particularly
groundwater pumping, in the Clear Lake watershed and learn how, if at
all, it influences surface tributary flow (State Water Resource Control
Board 2023, entire).
Lastly, the CDFW has begun to address some of the fish passage
barriers in the Clear Lake hitch's spawning tributaries by installing
fish ladders. The reconstruction of one project included installation
of holding pools for the fish to rest as they move upstream and breaks
in the ladder to help slow the rate of water flow (Ewing 2017c,
entire).
Cumulative Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the subspecies. To assess the current and future condition
of the subspecies, we evaluate the effects of all the relevant factors
that may be influencing the
[[Page 4929]]
subspecies, including threats and conservation efforts. Because the SSA
framework considers not just the presence of the factors, but to what
degree they collectively influence risk to the entire subspecies, our
assessment integrates the cumulative effects of the factors and
replaces a standalone cumulative-effects analysis.
Current Condition
In order to evaluate the current condition of the Clear Lake hitch,
we describe the resiliency of each population along with the redundancy
and representation of the subspecies. We considered demographic factors
and habitat elements to evaluate the population-level resiliency. We
divided the population in Clear Lake to ensure a more focused analysis
regarding how different areas of the lake contribute to the subspecies'
survival.
We established that there are two separate populations of Clear
Lake hitch within the Clear Lake watershed: one is found in Clear Lake
and its associated tributaries and small lakes (i.e., Blue Lakes and
Tule Lake), and the other is in Thurston Lake and its associated
tributary. Because Thurston Lake is not currently hydrologically
connected to Clear Lake and possibly never was, we do not anticipate it
to be connected in the future. The Clear Lake and Thurston Lake
populations were further delineated into units to capture the aquatic
habitat features at a local, sub-watershed level. We then grouped some
of the smaller delineated units into five ``analysis units'' using
otolith (calcium carbonate structure found in the inner ear of the
Clear Lake hitch) strontium signatures that indicated natal origins can
be assigned to one of five strontium isotope groups (SIGs) throughout
the watershed (Feyrer et al. 2019a, entire). The use of adult otoliths
for the natal habitat strontium groupings indicates that those areas
associated with the SIGs are contributing to reproduction and
recruitment. The terms ``analysis unit'' and ``SIG'' may be used
interchangeably for this analysis.
We delineated six analysis units across the subspecies' range.
Thurston Lake and Thurston Creek are described as a single analysis
unit. The Clear Lake population includes five analysis units described
according to the general location: Cole Creek; Kelsey Creek; Adobe
Creek and Clear Lake; Rodman Slough; and Middle, Clover, and Siegler
Canyon creeks (SIGs 1 through 5, respectively; Service 2024, p. 34).
Additional description of the populations and analysis units can be
found in the SSA report (Service 2024, pp. 26-28); see table 2, below,
for a list of the AUs.
In order to determine resiliency, we assessed the conditions at the
population and analysis unit levels. We used demographic and habitat
factors associated with each population. The demographic factors
include reproduction, recruitment, and survival at both the adult and
juvenile life stages. The habitat factors we used include water
quantity (tributaries) and quality (lake) and wetland/tule habitat
condition.
Influencing those factors is the quality and accessibility of Clear
Lake hitch habitat, which determines how well the spawning areas allow
for successful reproduction, whether the nearshore nursery areas allow
for young-of-year survival and subsequent recruitment, and whether
individuals can move between tributary spawning habitats and the lake.
Within the tributaries, water quantity and quality are important
factors influencing survival at all life stages, reproductive success,
and recruitment, and water quantity and quality are important for
connectivity between the tributaries and lakes. Environmental
stochastic events that have the potential to affect the subspecies
include severe storms, drought, contaminant exposure, and the
modification of habitat via natural (i.e., fire, drought, etc.) and
anthropogenic (i.e., conversion to agriculture, vegetation management)
means. Additional information regarding the resiliency factors can be
found in the SSA report (Service 2024, pp. 28-34).
We describe the population and analysis unit resiliency conditions
using categories of high, medium, and low (with transitional stages).
The methodology for determining the condition category includes
assessment of the demographic and habitat factors within each analysis
unit and within each population (Service 2024, p. 79). An overall high
condition for a population is an indicator of high probability of
population persistence. Populations in high condition have: accessible
tributaries available throughout the spawning season, different natal
habitats available for reproduction, individuals that are reproducing
successfully and populations that are actively recruiting, and a
sufficient amount and quality of spawning and rearing habitat to allow
for varying population densities. An overall moderate condition is an
indicator that probability of persistence for that population may be
compromised by the lack and/or degradation of one or more of the
subspecies' needs, and a low overall condition indicates low
probability of population persistence due to the lack and/or
degradation of multiple of the subspecies' needs. An extirpated
condition indicates no probability of population persistence due to
lack and/or degradation of all of the subspecies' needs. Conditions of
low/extirpated, moderate/low, and high/moderate are transitionary
between each of the qualitative categories.
In order to determine the current population estimates and
distribution, we used recent data (2015-2023) from surveys conducted on
spawning in the tributaries, along the lake shore, and throughout Clear
Lake. That data also informed the resiliency analysis for each
population and analysis unit. The demographic and habitat parameters
used in the resiliency analysis for each population and analysis unit
is provided in table 1, below (Service 2024, p. 67).
Table 1--Demographic and Habitat Factors Condition Categories for Population and Analysis Unit Resiliency With
High Condition as the Best Condition and Zero as the Lowest Condition
----------------------------------------------------------------------------------------------------------------
Demographic Demographic Habitat element-- Habitat element--
Condition category factor-- factor-- tributary water lake water
reproduction recruitment quantity quality
----------------------------------------------------------------------------------------------------------------
High........................... Overall total from Overall total from Water is retained Lake water is
reproduction recruitment within the well oxygenated
analysis is high. analysis is high. tributaries and minimally
throughout the contaminated.
spawning season.
[[Page 4930]]
Moderate....................... Overall total from Overall total from Water is retained Lake water is
reproduction recruitment within the oxygenated most
analysis is analysis is tributaries of the time,
moderate. moderate. throughout a large hypoxic
portion of the conditions do
spawning season. occur
periodically.
Some
contaminants are
present, but not
at lethal
levels.
Low............................ Overall total from Overall total from Water is retained Lake water is not
reproduction recruitment within the well oxygenated
analysis is low. analysis is low. tributaries and hypoxic
throughout a small conditions occur
portion of the frequently.
spawning season. Contaminants are
present,
sometimes at
lethal levels.
0 (Zero)....................... No reproduction... No recruitment.... Water is not Lake water
retained within the quality is
tributaries during uninhabitable.
any portion of the
spawning season.
----------------------------------------------------------------------------------------------------------------
Of the six Clear Lake hitch analysis units, for reproduction, there
are currently three analysis units that are in moderate condition (SIGs
1, 2, and 4), and two analysis units that are in low condition (SIGs 3
and 5). The current recruitment condition for SIG 3 is high, moderate
for SIGs 2 and 4, and low for SIGs 1 and 5. The current condition of
lake water quality is at a low condition for all five analysis units,
and the current condition for tributary water quantity is low for SIGs
1, 2, and 3, and moderate for SIGs 4 and 5. Currently, the Clear Lake
population has three analysis units at a moderate condition (SIGs 2, 3,
and 4), and two units at a low condition (SIGs 1 and 5), for an overall
Clear Lake population resiliency of moderate (Service 2024, p. 83). The
Thurston Lake population is currently in high condition and, therefore,
has high resiliency. See table 2, below.
Table 2--Summary Table of Current and Future Resiliency for Each Population (P) and Analysis Unit (AU)
----------------------------------------------------------------------------------------------------------------
Future condition Future condition
Population Analysis unit Current condition scenario 1 scenario 2
----------------------------------------------------------------------------------------------------------------
Clear Lake...................... .................. Moderate.......... Moderate/Low...... Low.
Cole Creek (SIG 1) Low............... Low............... Low.
Kelsey Creek (SIG Moderate.......... Moderate/Low...... Low.
2).
Clear Lake, Adobe Moderate.......... Moderate/Low...... Low.
Creek (SIG 3).
-------------------------------------------------------------------------------
Rodman Slough (SIG Moderate.......... Moderate.......... Moderate/Low.
4).
Middle Creek, Low............... Low............... Low.
Clover Creek,
Seigler Canyon
Creek (SIG 5).
Thurston Lake................... Thurston Lake..... High.............. Moderate.......... Moderate.
----------------------------------------------------------------------------------------------------------------
In describing the overall current condition, we not only include
resiliency of each population and analysis unit, but also consider the
representation and redundancy across the range of the subspecies.
Because both populations of the Clear Lake hitch are narrowly
distributed and occupy the same ecological niche, the subspecies has
likely never had much environmental diversity and likely does not have
much genetic diversity due to its endemism to a single watershed,
suggesting inherently limited representation. Given the subspecies'
narrow range, both populations of the subspecies (Clear Lake and
Thurston Lake) could be affected simultaneously by large-scale events.
However, the Clear Lake hitch uses different types of spawning habitats
(tributary, lake, or interface between the two) across its narrow
range, which may provide some current capacity to withstand a
catastrophic drought event.
Because of the historical connectivity within a single, large
watershed, Clear Lake provided better habitat conditions for the
subspecies. Currently, Thurston Lake does not have the level of threats
acting on the subspecies that are affecting the hitch in Clear Lake.
Surveys in 2023 of the Clear Lake population show there is an influx of
age classes, thus indicating there is reproduction occurring. This
diverse demographic make- up of the subspecies' population in Clear
Lake indicates that there is redundancy across subspecies' range and
bolsters the subspecies' resiliency. Currently, the Clear Lake hitch
has two extant populations: the Clear Lake population, which has a
moderate resiliency; and the Thurston Lake population, which has a high
resiliency. Both of these populations are able to withstand stochastic
environmental variation. Representation and redundancy are similar to
historical conditions, with both populations narrowly distributed and
occupying the same ecological niche.
The current resiliency analysis uses the best available
information; however, we recognize there are some uncertainties around
the subspecies' life
[[Page 4931]]
history, including recruitment, and the factors that influence its
viability. Some of the uncertainties include the lack of robust,
statistically valid population or abundance estimates for the
historical population of the Clear Lake hitch. Further, current
population estimates are still in initial stages, as local Tribes,
CDFW, and USGS are accruing more data to provide a more accurate
rangewide population estimate. Because this information is not
available, there is no baseline to compare for our current condition
analysis; therefore, we had to use available demographic and habitat
data to inform our analysis, which could result in an overestimation or
underestimation of population resiliency.
There is some uncertainty in how successful recruitment is in the
lower Clear Lake watershed, including within Clear Lake itself. Our
analysis in the SSA report assumes reproduction is successful when
adults are documented in the tributaries over the spawning season and
that some lake spawning is successful (Service 2024, p. 70). It is
possible these assumptions are overestimating how successful
reproduction is, resulting in an overestimation of population
resiliency.
Future Condition
In order to determine the Clear Lake hitch's viability in the
future, we assessed the condition of the subspecies' resiliency,
redundancy, and representation within a timeframe that we can make
reliable predictions about the threats and the subspecies' response to
the threats. The future conditions projections were timeframe we
applied for the future conditions' analyses found that the most
reliable timeframe extends out to the next 40 to 50 years. We
considered two plausible future scenarios that represent the extremes
of a range of future changes in environmental conditions and success of
implemented conservation efforts. Using these two scenarios allows us
to consider the full range of future possibilities for forecasting
future viability of the subspecies and incorporates any uncertainty
regarding the impact of future environmental conditions and the success
of implemented conservation efforts.
The future scenarios project the influences on viability into the
future and consider how those influences would potentially impact the
Clear Lake hitch's viability. As under Current Condition, we assessed
the subspecies' resiliency, redundancy, and representation under each
future scenario. For resiliency, we projected the impact to the
subspecies' reproduction, recruitment, water quantity (tributary), and
water quality (lake) at the population level and the analysis unit
level.
The following six factors affecting the Clear Lake hitch were
included in both of the two plausible future scenarios:
1. The loss of spawning habitat due to past watershed modifications
that have blocked access to or altered the flow regime of tributaries.
The lack of consistent tributary flow will continue due to the effects
of past instream gravel mining, deforestation, and grazing practices;
existing flood control project infrastructure; fire activity; and water
utilization for agricultural and urban uses. Because the rate of urban
development has slowed in the last decade, we do not anticipate a
significant amount of urban growth into the future. The timeframe for
the current Lake County General Plan is 20 years and only projects
growth out to 2028; however, we still do not expect growth to increase
much after 2028. Although the amount of agricultural development
increased substantially leading up to the 21st century, over the last
10 years or so the acreage of fruit, nut, field, seed, and vegetable
crops in Lake County only slightly increased.
Therefore, we do not anticipate a substantial increase in the
amount of agricultural production into the future (Service 2024, pp.
29, 34). Furthermore, future climate change is projected to further
exacerbate the degradation and inaccessibility of tributaries by
increasing the incidence of fire activity, flood events, and aridity.
Various passage barriers, both physical barriers and lack of flow, will
continue to persist in the watershed. And there are no there are no
groundwater sustainability plans for low priority basins.
2. The loss of wetland/tule habitat. The current remaining wetland/
tule habitat surrounding the lake will persist into the future,
primarily due to the implementation of Lake County's Clear Lake
Shoreline Ordinance.
3. Continued reductions in lake water quality due to the past loss
of wetland/tule habitat surrounding the lake, contamination from past
mercury mining along the lake's shore and from pesticide use for
agricultural and urban uses, the input of sediment and nutrients from
degraded tributaries, and nutrient inputs from surrounding urban and
agricultural development. As mentioned above, we do not project
agricultural production or urban development to increase substantially
into the future. Elevated nutrient and sediment inputs continue to
contribute to periodic cyanobacteria blooms, further reducing water
quality. Periodic fish kills continue to occur.
4. Nonnative fish species from past introductions are still
established within the lakes.
5. Drought incidence and intensity increase due to climate change,
reducing tributary flow during the spawning season in some years.
6. The continued implementation of current regulatory mechanisms
(e.g., CESA, Lake County's Clear Lake Shoreline Ordinance) and
management actions (e.g., Lake County's Aggregate Resources Management
Plan, other miscellaneous restoration actions occurring throughout the
watershed).
Scenario 1 assesses the viability of the subspecies if the trend
and magnitude of threats were to continue at the current trajectory
into the future with implemented management efforts being fully
successful. Scenario 2 assesses the subspecies' future viability with
an increase in the trend and magnitude of threats with implemented
management efforts having mixed success. Additional details regarding
the scenarios are described in the SSA report (Service 2024, pp. 89-
91).
Under Scenario 1, many of the factors that are having an influence
on each of the Clear Lake hitch populations continue at current rates,
or slightly increase. The effects of climate change, specifically
increased aridity, are already occurring throughout the watershed,
although the effects of increased aridity are not apparent every year.
Future drought conditions are projected to increase in both the number
of years drought conditions persist and the intensity of drought. Due
to the increased incidence of aridity, and because future climate
projections show the timing of precipitation will change, in some
years, the number of spawning tributaries available to the Clear Lake
hitch over the spawning season will decrease. A slight increase in fire
and flooding incidence will increase the amount of erosion occurring in
the tributaries, further decreasing lake water quality. As conditions
worsen in the tributaries, the hitch will have to increasingly rely on
spawning in the lake or in the mouths of streams. Because the Clear
Lake hitch is a State- listed species, direct take will continue to be
prohibited without a permit. Due to Lake County's Clear Lake Shoreline
Ordinance, the amount of existing wetland/tule habitats surrounding the
lake will continue to persist. Under Scenario 1, the SGMA has been
implemented, and general restoration projects, such as contaminant
remediation, tributary function, and barrier removal, continue to be
[[Page 4932]]
implemented at a small scale throughout the watershed.
Under Scenario 1, both populations decline in resiliency; the
Thurston Lake population is in moderate condition, and the Clear Lake
population is in moderate/low condition. Each Clear Lake analysis unit
is either unchanged from current condition, or declines. The resiliency
for SIGs 1 and 5 remains in low condition. SIG 4 remains in moderate
condition, and SIGs 2 and 3 decline from moderate to moderate/low
condition. For representation, because both populations of Clear Lake
hitch are narrowly distributed and occupy the same ecological niche,
environmental and genetic diversity are not expected to change
dramatically under Scenario 1. Therefore, representation for the Clear
Lake hitch under current conditions is maintained under Scenario 1.
For redundancy, given the narrow range, both populations of the
subspecies could be affected simultaneously by large-scale events.
However, the Clear Lake hitch uses different types of spawning habitats
(tributary, lake, or interface between the two) across its narrow
range, which may increase the ability of the subspecies to withstand a
catastrophic drought event, which is not expected to change
dramatically under Scenario 1. Therefore, redundancy for the Clear Lake
hitch under current conditions is maintained under Scenario 1.
Under Scenario 2, some of the factors that are having an influence
on each of the Clear Lake hitch populations continue at current rates,
while others will increase (Service 2024, pp. 92-94). In this scenario,
climate change results in more arid conditions throughout the
subspecies' range and impacts from increased fire and flooding increase
erosion occurring in the tributaries, further decreasing water quality
within the lake. As conditions worsen in the tributaries, the Clear
Lake hitch will have to increasingly rely on spawning in the lake or in
the mouths of streams. In addition, under this scenario, agricultural
production slightly increases in areas currently not prioritized by the
SGMA, small-scale restoration projects have been implemented but not
all are successful, the Middle Creek Project has not been implemented,
and few passage barriers have been removed. Under Scenario 2, Lake
County's Clear Lake Shoreline Ordinance will continue to limit tule
habitat loss, and the CESA will continue to limit the take of Clear
Lake hitch individuals.
The overall resiliency of each population will decline under
Scenario 2. The projections result in a moderate condition for the
Thurston Lake population and low condition for the Clear Lake
population. Within Clear Lake, each SIG declines to or maintains a low
condition except for Rodman Slough, which has a moderate/low condition.
Under Scenario 2, due to declines in abundance and recruitment
predicted under this future scenario, we anticipate representation will
be somewhat reduced from current conditions, and, therefore, the
subspecies will be less able to adapt to changing environmental
conditions. We also anticipate that redundancy will be somewhat reduced
from current conditions due to predicted declines in abundance and
recruitment, and, therefore, the subspecies will be more susceptible to
a catastrophic event.
We also present uncertainties associated with the future conditions
analyses for the Clear Lake hitch. As described above under Current
Condition, there is uncertainty regarding some of the subspecies' life-
history traits, including recruitment, and some of the factors
influencing the subspecies' viability that were used in the future
condition scenarios. Although there is a current population estimate
for the subspecies, this estimate is in its initial stages and
additional years of monitoring data are needed to provide a more
accurate estimate. Because we do not have an accurate current number to
compare to, and therefore cannot project changes in the size of either
population, we must qualitatively describe how future influences will
impact Clear Lake hitch populations. There is uncertainty in how
successful recruitment is in the lower Clear Lake watershed, including
within Clear Lake itself. Our analysis assumes reproduction is
successful when adults are documented in the tributaries over the
spawning season and that some lake spawning is successful. It is
possible these assumptions are overestimating how successful
reproduction is, resulting in an overestimation of population
resiliency.
Lastly, there is uncertainty around the degree of impact from water
extraction for agricultural use on the Clear Lake hitch and its
habitat. Groundwater pumping can deplete surface water in streams and
reduce flow and available water (USGS 2013, entire). Water extractions
may be one of the reasons for the reduction in the Clear Lake hitch's
population; however, the Clear Lake watershed is complex, and we do not
fully understand how surface and ground water interact in most of the
watershed because studies have not been completed. We also do not have
a full understanding of where water extractions are occurring or how
much water is being extracted; however, there are ongoing studies to
better understand the magnitude of impacts on the Clear Lake watershed
(Santana 2024, pers. comm.). Although we do not fully understand if or
how groundwater extraction is having an impact on the Clear Lake hitch,
we do know that water extraction in the summer lowers the water level
in pool habitat that acts as refugia for native fish in the
disconnected streams until they become reconnected by spring rains. It
is the loss of this pool habitat that affects the Clear Lake hitch.
However, because groundwater extraction is likely affecting water
availability for the subspecies, for our analysis, it is a logical
assumption that groundwater pumping for agricultural production is
likely having a negative impact on the subspecies. We also assumed the
highest rates of pumping are occurring where the most agricultural
production occurs. Therefore, it is possible we are overestimating the
impact from this threat, resulting in an underestimate of current
population resiliency.
Additional uncertainty is presented regarding future impacts to the
subspecies and its habitat from climate change, the future trajectory
of current negative influences to the subspecies (i.e., agricultural
production and urban development), the long-term success of current
conservation actions, and the implementation and success of future
conservation actions. Our overall future condition analysis assumes
climate change will exacerbate the current negative influences (e.g.,
drought) acting on the subspecies; both future scenarios capture the
full risk of this influence within the 40-to-50-year timeline. For
agricultural production and urban development, we assume future trends
will be similar to trends over the last decade, which only showed
slight increases. It is possible we underestimated the future
trajectory of these influences, which would result in an overestimation
of future population resiliency. The number of conservation actions
being implemented in the watershed has increased over the past few
years; however, we are uncertain about their success over the long term
and whether the current trend in implementation will continue into the
future. Since the two future condition scenarios consider the breadth
of future implementation and success of conservation activities for the
Clear Lake hitch, the overall future condition analysis captures the
full benefits of this influence on the subspecies.
[[Page 4933]]
Determination of the Clear Lake Hitch's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.
The Act requires that we determine whether a species meets the
definition of an endangered species or a threatened species because of
any of the following factors: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating the threats to the Clear Lake hitch and assessing
the cumulative effect of the threats under the Act's section 4(a)(1)
factors, we have determined that the overall viability of the Clear
Lake hitch has declined from historical levels due to the past and
ongoing threats of habitat loss, degradation, and modifications (Factor
A), predation (Factor C), competition (Factor E), and the effects of
climate change (Factor E) .
Currently, the subspecies has two extant populations: the Clear
Lake population, which has a moderate resiliency, and the Thurston Lake
population, which has a high resiliency. Both populations are able to
withstand stochastic environmental variation. Representation and
redundancy are similar to historical conditions, with both populations
narrowly distributed and occupying the same ecological niche. Because
of the historical connectivity within a single, large watershed, Clear
Lake provided better habitat conditions for the subspecies. Currently,
Thurston Lake does not have the level of threats acting on the
subspecies that are affecting the hitch in Clear Lake. Surveys in 2023
of the Clear Lake population show there is an influx of age classes,
thus indicating there is reproduction occurring. The diverse
demographic makeup of the subspecies' population in Clear Lake provides
support that there is redundancy across the Clear Lake hitch's range
and bolsters the subspecies' resiliency. Therefore, the Clear Lake
hitch is not currently at risk of extinction throughout its range and
does not meet the Act's definition of an endangered species.
However, under both future scenarios we see declines in population
resiliency in the foreseeable future as a result of factors that will
continue to affect the subspecies. Our analysis of the past, current,
and future factors influencing viability revealed there are six primary
factors affecting the viability of the Clear Lake hitch. These risks to
viability are primarily related to habitat changes but also includes
others with more direct effect to the subspecies:
1. The loss of spawning habitat due to past watershed modifications
that have blocked access to or altered the flow regime of tributary
streams.
2. The loss of wetland/tule habitat. The current remaining wetland/
tule habitat surrounding the lake will persist into the future,
primarily due to the implementation of Lake County's Clear Lake
Shoreline Ordinance.
3. Continued reductions in lake water quality due to the past loss
of wetland/tule habitat surrounding the lake, contamination from past
mercury mining along the lake's shore and from pesticide use for
agricultural and urban uses, the input of sediment and nutrients from
degraded tributaries, and nutrient inputs from surrounding urban and
agricultural development. As mentioned above, we do not project
agricultural production or urban development to increase substantially
into the future. Elevated nutrient and sediment inputs continue to
contribute to periodic cyanobacteria blooms, further reducing water
quality. Periodic fish kills continue to occur.
4. Nonnative fish species from past introductions are still
established within Clear Lake.
5. Drought incidence and intensity increase due to climate change,
reducing tributary flow during the spawning season in some years
(Hayhoe et al. 2004, pp. 12424-12425, Pierce et al. 2013, pp. 848-850).
6. The continued implementation of current regulatory mechanisms
(e.g., CESA, Lake County's Clear Lake Shoreline Ordinance), management
actions (e.g., Lake County's Aggregate Resources Management Plan, and
other miscellaneous restoration actions occurring throughout the
watershed) that limits the amount of gravel extract.
Under both future scenarios, Thurston Lake declines to a moderate
resiliency and Clear Lake declines to a moderate/low or low resiliency,
suggesting the subspecies will be less likely to withstand stochastic
environmental variation in the future. Under future Scenario 1,
redundancy and representation are mostly maintained but begin to be
impacted by the declines in population resiliency. Under future
Scenario 2, both redundancy and representation are reduced due to the
limited availability of some spawning habitats and the subspecies being
less able to adapt to changing environmental conditions. Because of
this future reduction in resiliency, redundancy, and representation,
the subspecies is likely to become endangered within the foreseeable
future throughout its range and meets the Act's definition of a
threatened species. Thus, after assessing the best scientific and
commercial data available, we conclude that the Clear Lake hitch is not
in danger of extinction but is likely to become in danger of extinction
within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final
Policy''; 79 FR 37578, July 1, 2014) that provided if the Services
determine that a species is threatened throughout all of its range, the
Services will not analyze whether the species is endangered in a
significant portion of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
the Clear Lake hitch is in danger of extinction in a significant
portion of its
[[Page 4934]]
range. In undertaking this analysis for the Clear Like hitch, we chose
to address the significance question first. We identified Clear Lake
and its tributaries as a significant portion of the subspecies' range;
this portion is biologically meaningful to the subspecies due to its
large geographical size (i.e., it encompasses the greatest proportion
of the subspecies' entire range and near 95 percent of the available
lake habitat). Additionally, Clear Lake and its tributaries support the
majority of the subspecies' entire population. We include the
tributaries in this portion because the Clear Lake hitch uses them for
spawning, and they are important for the reproduction aspect of the
subspecies' lifecycle.
After determining the portion's significance, we evaluated the
Clear Lake hitch's status within that portion. Since we found the
subspecies meets the Act's definition of threatened across its entire
range, we considered the status of the portion to determine if the
subspecies within Clear Lake and its tributaries meets the Act's
definition of an endangered species. The current resiliency of this
population is scored as moderate (see table 2, above). Seasonal surveys
conducted in Clear Lake from 2017 to 2023 indicate fluctuations in the
populations; the 2023 surveys yielded the highest number (304) of
individual hitch captured. The increase could possibly be due to more
water available from a rainy year. The 2023 surveys also show there is
an influx of age classes, thus indicating there is reproduction
occurring across a range of years and climatic conditions. This diverse
demographic makeup of the subspecies' population in Clear Lake provides
support that there is currently redundancy within the portion and
bolsters the subspecies' resiliency. Representation and redundancy in
this portion are similar to historical conditions, with the population
narrowly distributed and occupying the same ecological niche. The
current resiliency is moderate for this portion, and this portion
retains sufficient resiliency such that it will be able to withstand
stochastic environmental variation in the near term. Therefore, the
subspecies is not in danger of extinction within this portion of its
range.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because,
in reaching this conclusion, we did not apply the aspects of the Final
Policy, including the definition of ``significant'' that those court
decisions held to be invalid.
Determination of Status
Based on the best scientific and commercial data available, we
determine that the Clear Lake hitch meets the Act's definition of a
threatened species throughout its range. Therefore, we propose to list
the Clear Lake hitch as a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, foreign
governments, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies, including the Service, and the prohibitions
against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self- sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If the Clear Lake hitch is listed, funding for recovery actions
will be available from a variety of sources, including Federal budgets,
State programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of California would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Clear Lake hitch. Information on our
grant programs that are available to aid species recovery can be found
at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although the Clear Lake hitch is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery
[[Page 4935]]
efforts for this subspecies. Additionally, we invite you to submit any
new information on this subspecies whenever it becomes available and
any information you may have for recovery planning purposes (see FOR
FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation,'' and it
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action that is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2) of the
Act.
Examples of discretionary actions for the Clear Lake hitch that may
be subject to conference and consultation procedures under section 7 of
the Act are management of Federal lands administered by BLM and USFS,
as well as actions that require a Federal permit (such as a permit from
USACE under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.)
or actions funded by Federal agencies such as the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency. Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation. Federal
agencies should coordinate with the Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on
section 7 consultation and conference requirements.
Section 9 of the Act provides a specific list of prohibitions for
endangered species but does not provide these same prohibitions for
threatened species. Instead, pursuant to section 4(d) of the Act, for
any species listed as a threatened species, the Secretary must issue
protective regulations that are ``necessary and advisable to provide
for the conservation of such species'' (these are referred to as ``4(d)
rules). Additional measures for the Clear Lake hitch are described
below (see Protective Regulations Under Section 4(d) of the Act,
below).
We may issue permits to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits for threatened wildlife are codified at 50 CFR 17.32,
and general Service permitting regulations are codified at 50 CFR part
13. With regard to threatened wildlife, a permit may be issued: for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
II. Protective Regulations Under Section 4(d) of the Act
Background
As discussed in Available Conservation Measures, section 9 of the
Act provides a specific list of prohibitions for endangered species but
does not provide these same prohibitions for threatened species.
Instead, pursuant to section 4(d) of the Act, for any species listed as
a threatened species, the Secretary must issue protective regulations
that are ``necessary and advisable to provide for the conservation of
such species'' (these are referred to as ``4(d) rules''). Section 4(d)
of the Act contains two sentences. The first sentence states that the
Secretary shall issue such regulations as she deems necessary and
advisable to provide for the conservation of species listed as
threatened species.
Conservation is defined in the Act to mean the use of all methods
and procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. With these two sentences in section
4(d), Congress delegated broad authority to the Secretary to determine
what protections would be necessary and advisable to provide for the
conservation of threatened species, and even broader authority to put
in place any of the section 9 prohibitions, for a given species. Courts
have recognized the extent of the Secretary's discretion under section
4(d) to develop rules that are appropriate for the conservation of a
species. For example, courts have upheld, as a valid exercise of agency
authority, rules developed under section 4(d) that included limited
prohibitions against takings (see Alsea Valley Alliance v.
Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington Environmental
Council v. National Marine Fisheries Service, 2002 WL 511479 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to [them] with regard to the permitted activities for those species.
[They] may, for example, permit taking, but not importation of such
species. [They] may, for example, permit taking, but not importation of
such species, or [they] may choose to forbid both taking and
importation but allow the transportation of such species'' (H.R. Rep.
No. 412, 93rd Cong., 1st Sess. 1973).
Under our 4(d) authorities, we put in place protections intended to
both prevent a threatened species from becoming an endangered species
and to promote its recovery. We have two ways to put in place these
protections for a
[[Page 4936]]
threatened species: (1) we can issue a species-specific 4(d) rule (at
50 CFR 17.40-17.47 or 17.73-17.74), which would contain all of the
protective regulations for that species; or (2) we can apply a
``blanket rule'' (for more information, see 89 FR 23919, April 5,
2024), which extends to threatened species without a species-specific
rule all of the prohibitions that apply to endangered species under
section 9 (with certain exceptions applicable to threatened species).
Both ``blanket rules'' and species-specific 4(d) rules explain what
is prohibited for a threatened species, thus making the activity
unlawful without a permit or authorization under the Act for the
prohibited activity unless otherwise excepted in the 4(d) rule
(species-specific 4(d) rules may also include affirmative
requirements). Section 4(d) rules are therefore directly related to
what actions may require permits in the future. As discussed in
Available Conservation Measures, permits may be issued for purposes
described in our threatened species permitting regulations at 50 CFR
17.32 and 17.72, including for recovery actions, conservation benefit
agreements (previously referred to as candidate conservation agreements
with assurances and safe harbor agreements), or habitat conservation
plans. We may also except otherwise prohibited activities through a
4(d) rule itself, in which case threatened species permits would not be
required for those activities. For example, there are two categories of
exceptions that we frequently include in 4(d) rules, and these are for
otherwise prohibited acts or forms or amounts of ``take'' that are: (1)
unavoidable while conducting beneficial actions for the species, or (2)
considered inconsequential (de minimis) to the conservation of the
species. For otherwise prohibited take activities that require section
10 permits, programmatic approaches--such as general conservation plans
and template habitat conservation plans--may be available as another
way for project proponents to comply with take prohibitions or
requirements applicable to one or more species while reducing the time
that would otherwise be associated with developing individual permit
applications. In addition, the Service and project proponents can
reduce the need for such permits by developing standardized
conservation measures that avoid the risk of ``take.''
The provisions of the Clear Lake hitch's proposed protective
regulations under section 4(d) of the Act are one of many tools that we
would use to promote the conservation of the Clear Lake hitch. The
proposed protective regulations would apply only if and when we make
final the listing of the Clear Lake hitch as a threatened species.
Nothing in 4(d) rules change in any way the recovery planning
provisions of section 4(f) of the Act or the consultation requirements
under section 7 of the Act. As mentioned previously in Available
Conservation Measures, section 7(a)(2) of the Act requires Federal
agencies, including the Service, to ensure that any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of designated critical habitat
of such species. In addition, even before the listing of any species or
the designation of its critical habitat is finalized, section 7(a)(4)
of the Act requires Federal agencies to confer with the Service on any
agency action which is likely to jeopardize the continued existence of
any species proposed to be listed under the Act or result in the
destruction or adverse modification of critical habitat proposed to be
designated for such species. These requirements are the same for a
threatened species regardless of what is included in its 4(d) rule.
Whether a threatened species is protected through a ``blanket
rule'' or a species- specific 4(d) rule, protective regulations do not
alter section 7 obligations, including the criteria for informal or
formal consultations or the analytical process used for biological
opinions or concurrence letters. Section 7 consultation is required for
Federal actions that ``may affect'' a listed species regardless of
whether take caused by the activity is prohibited or excepted by a 4(d)
rule (the ``blanket rule'' or a species-specific 4(d) rule.
For example, as with an endangered species, if a Federal agency
determines that an action is ``not likely to adversely affect'' a
threatened species, this will require the Service's written concurrence
(50 CFR 402.13(c)). Similarly, if a Federal agency determinates that an
action is ``likely to adversely affect'' a threatened species, the
action will require formal consultation with the Service and the
formulation of a biological opinion (50 CFR 402.14(a)). Because
consultation obligations and processes are unaffected by 4(d) rules, we
may consider developing tools to streamline future intra-Service and
interagency consultations for actions that result in forms of take that
are not prohibited by the 4(d) rule (but that still require
consultation). These tools may include consultation guidance;
streamlined, online consultation processes via the Service's digital
project planning tool (Information for Planning and Consultation;
<a href="https://ipac.ecosphere.fws.gov/">https://ipac.ecosphere.fws.gov/</a>); template language for biological
opinions; or programmatic consultations.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the Clear
Lake hitch's conservation needs. As discussed above under Summary of
Biological Status and Threats, we have concluded that the Clear Lake
hitch is likely to become in danger of extinction within the
foreseeable future primarily due to habitat loss, degradation, and
modification; nonnative species' predation; competition; and the
effects of climate change. Section 4(d) requires the Secretary to issue
such regulations as she deems necessary and advisable to provide for
the conservation of each threatened species and authorizes the
Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
species. We are not required to make a ``necessary and advisable''
determination when we apply or do not apply specific section 9
prohibitions to a threatened species (In re: Polar Bear Endangered
Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228
(D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v.
Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S.
687 (1995))). Nevertheless, even though we are not required to make
such a determination, we have chosen to be as transparent as possible
and explain below why we find that, if finalized, the protections,
prohibitions, and exceptions in this proposed rule as a whole satisfy
the requirement in section 4(d) of the Act to issue regulations deemed
necessary and advisable to provide for the conservation of the Clear
Lake hitch.
The protective regulations we are proposing for the Clear Lake
hitch incorporate prohibitions from the Act's section 9(a)(1) to
address the threats to the subspecies. The prohibitions of section
9(a)(1) of the Act, and implementing regulations codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit, or to cause to be committed any of the following acts with
regard to any endangered wildlife: (1) import into, or export from, the
United States; (2) take (which
[[Page 4937]]
includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct) within the
United States, within the territorial sea of the United States, or on
the high seas; (3) possess, sell, deliver, carry, transport, or ship,
by any means whatsoever, any such wildlife that has been taken
illegally; (4) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means whatsoever and in the
course of commercial activity; or (5) sell or offer for sale in
interstate or foreign commerce. This protective regulation includes all
of these prohibitions because the Clear Lake hitch is at risk of
extinction within the foreseeable future and putting these prohibitions
in place would help prevent further declines in the subspecies,
preserve the species remaining populations, and decrease synergistic,
negative effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the Clear Lake hitch by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce. Under the Act, ``take''
means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct. Some of these
provisions have been further defined in regulations at 50 CFR 17.3.
Take can result knowingly or otherwise, by direct and indirect impacts,
intentionally or incidentally. Regulating take would help to sustain
water quality and water flow within the tributaries and improve
reproductive success, prevent further declines preserve or improve the
resiliency of the remaining populations, and decrease synergistic,
negative effects from other ongoing or future threats. Therefore, we
propose to prohibit take of the Clear Lake hitch, except for take
resulting from those actions and activities specifically excepted by
the 4(d) rule.
Exceptions to the prohibition on take would include all of the
general exceptions to the prohibition on take of endangered wildlife,
as set forth in 50 CFR 17.21, and additional exceptions, as described
below.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
In addition, to further the conservation of the species, any
employee or agent of the Service, any other Federal land management
agency, the National Marine Fisheries Service, a State conservation
agency, or a federally recognized Tribe, who is designated by their
agency or Tribe for such purposes, may, when acting in the course of
their official duties, take threatened wildlife without a permit if
such action is necessary to: (i) Aid a sick, injured, or orphaned
specimen; (ii) dispose of a dead specimen; (iii) salvage a dead
specimen that may be useful for scientific study; or (iv) remove
specimens that constitute a demonstrable but nonimmediate threat to
human safety, provided that the taking is done in a humane manner; the
taking may involve killing or injuring only if it has not been
reasonably possible to eliminate such threat by live capturing and
releasing the specimen unharmed, in an appropriate area.
We recognize the special and unique relationship that we have with
our State natural resource agency partners in contributing to
conservation of listed species. State agencies often possess scientific
data and valuable expertise on the status and distribution of
endangered, threatened, and candidate species of wildlife and plants.
State agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve the Clear Lake hitch that may result in
otherwise prohibited take without additional authorization.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Clear Lake hitch, are not expected to rise to the level that would have
a negative impact (i.e., would have only de minimis impacts) on the
subspecies' conservation. The proposed exceptions to these prohibitions
include activities associated with the cleanup of illegal cannabis
cultivation sites in the Clear Lake watershed, Tribal collection, fish
rescues, fuels and fire management activities, habitat management and
restoration, and nonnative fish species removal (described below) that
are expected to have negligible impacts to the Clear Lake hitch and its
habitat.
Cleanup of Illegal Cannabis Cultivation Sites
Illegal cannabis cultivation in California has been an ongoing
problem, and illegal grows are known to occur in Lake County within the
Clear Lake hitch's range (Lake County News 2023, entire; California
Statewide Law Enforcement Association 2020, entire). Although species-
specific studies on the impact that illegal cannabis grows have on the
Clear Lake hitch are not currently available, these illegal cannabis
sites are known to impact fish and their habitats, not only during
active operation but also when sites are left abandoned. As described
above in the Threats section, many pesticides can be highly toxic and
used illegally at cannabis grow sites. Fertilizers are also used at
these sites. Growers can add these chemicals to their irrigation
systems, causing the chemicals to seep into the surrounding soil and
waterways (California Department of Pesticide Regulation 2021, p. 2;
USDA 2023, entire). Fertilizers affect the water quality and may
increase cyanobacteria blooms and fish kills (Baker 2018, p. 6).Water
diversions associated with illegal cannabis cultivation sites, block
fish passage, change flow regimes, and cause other secondary effects
(Baker 2018, p. 6).
Cleanup efforts to address chemical contamination and water
diversion structures from these illegal grow sites will help protect
the surrounding ecosystem and discourage other growers from returning
to the same sites (USDA 2023, entire). During cleanup efforts, some
localized, short-term disturbances to Clear Lake hitch habitat may
occur if activities occur within or adjacent to
[[Page 4938]]
that habitat. Implementation of these cleanup activities will not
appreciably reduce the likelihood of survival and recovery of the Clear
Lake hitch and will result in a long-term benefit to the subspecies and
surrounding ecosystem. Therefore, we propose to except take incidental
to otherwise lawful activities that remove toxicants, other chemicals,
and related water diversion infrastructure from illegal cannabis
cultivation sites in the Clear Lake watershed.
Tribal Collection
The Clear Lake area is one of the earliest known sites to be
occupied by Native Americans, approximately 10,000 years ago (Richerson
et al. 2008, p. A259). For their subsistence, the local Pomo Tribes
historically relied on the large spawning runs of hitch and other
native migrating fish during the spring, drying and storing them to eat
throughout the year. Tribes continued to harvest hitch until the mid-
1980s, when the spawning runs began to decline (Big Valley
Environmental Protection Agency 2013 in CDFW 2014, p. 26). California
State regulations allowed capture of Clear Lake hitch on tributaries by
hand or dip-net until the subspecies was designated a candidate for
State listing under the CESA (CDFW 2014, p. 26).
In recognizing the Tribe's long-standing relationship to the
subspecies, we propose to except take caused by collection of Clear
Lake hitch by members of federally recognized Tribes for ceremonial use
or traditional consumption if the collection is conducted pursuant to a
Tribal conservation plan.
Fish Rescues
Clear Lake hitch may become stranded during drought or at other
times when there is low water availability. Due to their reliance on
connectivity between tributaries and lakes for the reproductive cycle,
a reduction of flow in the tributaries during the spawning season can
completely eliminate or greatly reduce the likelihood for successful
reproduction or recruitment or both. The effects of drought will affect
the entire subspecies because of its inherently narrow range and will
result in strandings. Several entities aid stranded Clear Lake hitch,
including State, Federal, Tribal, local, and private individuals.
Therefore, we propose to except take caused by rescue of individual
Clear Lake hitch that are at risk of stranding and eventual death in
drying or warming pools, and the subsequent transport and release into
a flowing, connected tributary stream or into a larger waterbody (e.g.,
Clear Lake, Blue Lakes, Tule Lake).
Fuels and Fire Management Activities
In certain areas, the use of fire and wildfire management such as
prescribed burns, fuel reduction activities, and maintenance of fuel
breaks (not including the use of heavy equipment such as bulldozers,
backhoes, or tractors) may assist in protecting and maintaining land
adjacent to the aquatic systems used by the Clear Lake hitch.
Establishing and maintaining required minimum vegetation clearance
from dwellings or structures to reduce wildland fire risks to human
life and property may assist in protecting and maintaining habitat for
the Clear Lake hitch by controlling erosion and improving water
quality. This process includes activities necessary to maintain the
minimum clearance (defensible space) requirement from any occupied
dwelling or occupied structure, or to the property line, whichever is
nearer, to provide reasonable fire safety and to reduce wildfire risks
consistent with the State of California fire codes or local fire codes/
ordinances. Therefore, we propose to except take incidental to an
otherwise lawful activity caused by fuels and fire management
activities (such as prescribed fire) to reduce the risk or severity of
catastrophic wildfire, and when such activities will be carried out in
accordance with an established and recognized fuels or forest
management plan that includes measures to minimize impacts to the Clear
Lake hitch or aquatic habitats and will result in conservation benefits
to the Clear Lake hitch.
Habitat Management and Restoration
Clear Lake hitch individuals require connectivity to lakes and
tributaries throughout their lives. Different life stages depend on
different habitat types. Tributaries are used for spawning and
successful reproduction. During the spawning season, most adults likely
migrate into the connected tributaries; however, some reproductive
adults may stay within the lake and spawn along the shore, the mouth of
tributaries, or in backwater areas (e.g., Rodman Slough in Clear Lake).
Outside of the spawning season, the Clear Lake hitch is primarily found
in Clear Lake or Thurston Lake, but can also be found in Tule Lake, the
Blue Lakes, and other permanent waterbodies such as reservoirs and
ponds. Within the lacustrine habitats, the subspecies can be found in
either the littoral zone (nearshore) as juveniles or the limnetic zone
(sun-lit, offshore open water) as adults. During extreme drought
conditions, the only successful reproduction may be within the lakes.
Nonnative vegetative growth along the lake's shoreline can
outcompete the growth of important native wetland plant species, such
as tule. Nonnative plant species, such as Himalayan blackberry (Rubus
armeniacus), growing along the tributaries can become so overgrown that
they become passage barriers or they outcompete native species such as
willows and cottonwoods. Removal and maintenance of excessive nonnative
vegetation may assist the restoration of wetland and riparian habitats
throughout the watershed so that these habitats can be used as breeding
and rearing habitat for the Clear Lake hitch.
Therefore, we propose to except take incidental to otherwise lawful
activity caused by habitat management and restoration efforts that
specifically provide for the habitat needs of the Clear Lake hitch and
include measures that minimize impacts to the subspecies and its
habitat. These efforts must be carried out in accordance with finalized
conservation plans or strategies for the Clear Lake hitch that have the
approval of appropriate State or Federal agencies. These activities
will most likely have some limited short-term impacts but overall will
provide for conservation of the subspecies.
Nonnative Fish Species Removal
As noted earlier in this document, 25 different species of
nonnative fish have been introduced into Clear Lake for recreational or
biological control purposes, and although not all of them have become
established, about 20 are still found in the lake today (Thompson et
al. 2013, pp. 12-17). All of the piscivorous species in Clear Lake are
potential predators of the Clear Lake hitch, and there have been
accounts of the subspecies in the digestive tracts of both largemouth
bass and channel catfish (Macedo 1994, p. 5; Moyle et al. 1995, pp.
154-155; Moyle et al. 2014, p. 10). Anecdotal reports suggest the Clear
Lake hitch may be a main prey-item for largemouth bass. Predation and
competition from the nonnative species will continue to affect the
Clear Lake hitch at the individual, population, and subspecies level
into the future throughout its range, reducing survival, reproduction,
and recruitment, which reduces resiliency by decreasing the size of the
spawning and overall population.
Nonnative species removal will significantly increase the viability
of the Clear Lake hitch. Actions with the primary or secondary purpose
of removing nonnative fish species that
[[Page 4939]]
compete with, predate upon, or degrade the habitat of the Clear Lake
hitch are beneficial to the Clear Lake hitch. Therefore, we propose to
exempt take incidental to otherwise lawful activity caused by removal
or eradication of nonnative fish species. This exception does not
include actions that disturb habitat or involve the use of chemicals.
III. Critical Habitat
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4(b)(2) of the Act requires that we designate critical
habitat on the basis of the best scientific data available. Further,
our Policy on Information Standards Under the Endangered Species Act
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the
Information Quality Act (section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554;
H.R. 5658)), and our associated Information Quality Guidelines provide
criteria, establish procedures, and provide guidance to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information compiled in the SSA report and information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge. Habitat is dynamic, and
species may move from one area to another over time.
We recognize that critical habitat designated at a particular point
in time may not include all of the habitat areas that we may later
determine are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be needed for
recovery of the species. Areas that are important to the conservation
of the species, both inside and outside the critical habitat
designation, will continue to be subject to: (1) Conservation actions
implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in the 4(d) rule. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may
[[Page 4940]]
still result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of the
species. Similarly, critical habitat designations made on the basis of
the best scientific data available at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of those planning
efforts calls for a different outcome.
Critical Habitat Determinability
Our regulations at 50 CFR 424.12(a)(2) state that critical habitat
is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
We reviewed the available information pertaining to the biological
needs of the subspecies and habitat characteristics where this
subspecies is located, but sufficient data to perform the required
consideration of economic impacts are lacking at this time.
Therefore, we conclude that the designation of critical habitat for
the Clear Lake hitch is not determinable at this time. The Act allows
the Service an additional year to publish a critical habitat
designation that is not determinable at the time of listing (16 U.S.C.
1533(b)(6)(C)(ii)).
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government- to-Government Relations with Native American Tribal
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and
Coordination with Indian Tribal Governments), the President's
memorandum of November 30, 2022 (Uniform Standards for Tribal
Consultation; 87 FR 74479, December 5, 2022), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We contacted all federally recognized Tribes in the range of
the Clear Lake hitch during the initiation of our SSA development
process. Two of the local Tribes provided technical review of the SSA
report. We will continue to work with relevant Tribal entities during
the development of a final rule for listing of, and a proposed rule for
the designation of critical habitat for, the Clear Lake hitch.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this proposed rule are members of Fish and
Wildlife Service's Species Assessment Team and Sacramento Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Hitch, Clear Lake'' in
alphabetical order under FISHES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
[[Page 4941]]
* * * * * * *
Hitch, Clear Lake............... Lavinia exilicauda Wherever found.... T [Federal Register
chi. citation when
published as a final
rule]; 50 CFR
17.44(mm).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (mm) to read as follows:
Sec. 17.44 Species-specific rules--fishes.
* * * * *
(mm) Clear Lake hitch (Lavinia exilicauda chi).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Clear Lake hitch. Except as
provided under paragraph (mm)(2) of this section and Sec. Sec. 17.4
and 17.5, it is unlawful for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit, or cause to be committed any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Activities that remove toxicants, other chemicals, and related
water diversion infrastructure from illegal cannabis cultivation sites
in the Clear Lake watershed.
(B) Fuels and fire management activities (such as prescribed fire)
to reduce the risk or severity of catastrophic wildfire, and when such
activities will be carried out in accordance with an established and
recognized fuels or forest management plan that includes measures to
minimize impacts to the Clear Lake hitch or aquatic habitats and will
result in conservation benefits to the Clear Lake hitch. This exception
does not include the use of heavy equipment, such as bulldozers,
backhoes, or tractors, for fuels and fire management activities.
(C) Habitat management and restoration efforts that are
specifically designed to provide for the conservation of the Clear Lake
hitch's habitat needs and include measures that minimize impacts to the
Clear Lake hitch and its habitat. These efforts must be carried out in
accordance with finalized conservation plans or strategies for the
Clear Lake hitch that have the approval of appropriate State or Federal
agencies.
(D) Removal or eradication of nonnative fish species, including,
but not limited to, carp and goldfish, for the conservation benefit of
the Clear Lake hitch. This exception does not include actions that
disturb habitat or involve the use of chemicals.
(vi) Purposefully take associated with:
(A) Collection of Clear Lake hitch individuals by members of
federally recognized Tribes for ceremonial use or traditional Tribal
consumption if the collection is conducted pursuant to a Tribal
conservation plan.
(B) Activities associated with rescuing Clear Lake hitch
individuals that are at risk of stranding in drying or warming pools
and relocating them into connected waterways.
* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-31756 Filed 1-15-25; 8:45 am]
BILLING CODE 4333-15-P
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