`[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Proposed Rules]
[Pages 4916-4941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31756]



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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: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2024-0161, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2024-0161, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R8-ES-2024-0161.

FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Sacramento, CA 95825; telephone 916-414-6700. Individuals 
in the United States who are deaf, deafblind, hard of hearing, or have 
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States. 
Please see Docket No. FWS-R8-ES-2024-0161 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range).
    If we determine that a species warrants listing, we must list the 
species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
Clear Lake hitch meets the Act's definition of a threatened species; 
therefore, we are proposing to list it as such. Listing a species as an 
endangered or threatened species can be completed only by issuing a 
rule through the Administrative Procedure Act rulemaking process (5 
U.S.C. 551 et seq.).
    What this document does. We propose to list the Clear Lake hitch as 
a threatened species with a rule issued under section 4(d) of the Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the Clear Lake hitch meets 
the definition of a threatened species due to the following threats: 
habitat loss, degradation, and modifications (Factor A), predation 
(Factor C), competition (Factor E), and the effects of climate change 
(Factor E).
    Section 4(a)(3) of the Act requires that the Secretary of the 
Interior (Secretary), to the maximum extent prudent and determinable, 
concurrently with listing designate critical habitat for the species. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protections; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat. At this time, critical habitat for the Clear 
Lake hitch is not determinable.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The Clear Lake hitch's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the subspecies,

[[Page 4917]]

including habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional areas occupied by the subspecies;
    (d) Historical and current population levels, and current and 
projected trends; and
    Past and ongoing conservation measures for the subspecies, its 
habitat, or both.
    (2) Threats and conservation actions affecting the subspecies, 
including:
    (a) Factors that may be affecting the continued existence of the 
subspecies, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors;
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this subspecies; and
    (c) Existing regulations or conservation actions that may be 
addressing threats to this subspecies.
    (3) Additional information concerning the historical and current 
status of this subspecies.
    (4) Information to assist with applying or issuing protective 
regulations under section 4(d) of the Act that may be necessary and 
advisable to provide for the conservation of the Clear Lake hitch. In 
particular, we seek information concerning:
    (a) The extent to which we should include any of the section 9 
prohibitions in the 4(d) rule; or
    (b) Whether we should consider any additional exceptions from the 
prohibitions in the 4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov. Our 
final determination may differ from this proposal because we will 
consider all comments we receive during the comment period as well as 
any information that may become available after this proposal. Based on 
the new information we receive (and, if relevant, any comments on that 
new information), we may conclude that the Clear Lake hitch is 
endangered instead of threatened, or we may conclude that the 
subspecies does not warrant listing as either an endangered species or 
a threatened species. In addition, we may change the parameters of the 
prohibitions or the exceptions to those prohibitions in the 4(d) rule 
if we conclude it is appropriate in light of comments and new 
information received. For example, we may expand the prohibitions if we 
conclude that the protective regulation as a whole, including those 
additional prohibitions, is necessary and advisable to provide for the 
conservation of this subspecies. Conversely, we may establish 
additional exceptions to the prohibitions in the final rule if we 
conclude that the activities would facilitate or are compatible with 
the conservation and recovery of the subspecies. In our final rule, we 
will clearly explain our rationale and the basis for our final 
decision, including why we made changes, if any, that differ from this 
proposal.

Public Hearing

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

Previous Federal Actions

    On September 25, 2012, we received a petition from the Center for 
Biological Diversity to list the Clear Lake hitch as an endangered or 
threatened species under the Act and to designate critical habitat. The 
Service issued a 90-day finding on April 10, 2015 (80 FR 19259), 
stating that the petition presented substantial information that 
listing the Clear Lake hitch may be warranted and initiating a status 
review of the subspecies. On December 3, 2020, we published our 12-
month finding that the Clear Lake hitch was not warranted for listing 
under the Act (85 FR 78029).
    The Center for Biological Diversity filed a complaint in the 
Northern District of California on August 17, 2021, challenging our 12-
month not-warranted finding. By stipulated settlement agreement 
approved by the court on April 14, 2022, the Service agreed to submit 
to the Federal Register a new 12-month finding for the Clear Lake hitch 
on or before January 12, 2025 (Center for Biological Diversity v. U.S. 
Fish and Wildlife Service, et al., No. 3:21-cv-06323-RS (N.D. Cal.)).

Peer Review

    In 2020, a species status assessment (SSA) team prepared an SSA 
report (version 1.0; Service 2021, entire) for the Clear Lake hitch's 
12-month finding (85 FR 78029; December 3, 2020). The SSA team was 
composed of Service biologists, in consultation with other species 
experts. In 2024, the SSA report was updated with new information 
(e.g., survey data, life history information, conservation actions) 
(version 2.0; Service 2024, entire). The SSA report (version 2.0; 
Service 2024, entire) represents a compilation of the best scientific 
and commercial data available concerning the status of the subspecies, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the subspecies. species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing and recovery actions under the Act (https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf), we solicited independent

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scientific review of the information contained in the Clear Lake hitch 
SSA report (version 2.0; Service 2024, entire). We sent the SSA report 
to three independent peer reviewers and we received responses from two 
reviewers. Results of this structured peer review process can be found 
at https://www.regulations.gov. In preparing this proposed rule, we 
incorporated the results of these reviews, as appropriate, into the SSA 
report, which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

    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

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are successfully occurring, and whether other small waterbodies 
upstream of Clear Lake are supporting the Clear Lake population. In 
2017 and 2018, 280 and 297 hitch were captured, respectively. The Clear 
Lake hitch was the fifth most abundant species/subspecies collected 
over the course of the 2017 survey and the most abundant species/
subspecies captured during the 2018 effort (USGS 2018, p. 8). However, 
the number of hitch captured during the 2019, 2021, and 2022 surveys 
drastically declined to only 76, 40, and 6 individuals, respectively. 
In 2023, the number of individuals captured increased to 304 
individuals and included multiple stage classes (Clear Lake Hitch 
Summit Agenda and Presentations 2023, p. 84; Palm et al. 2023, entire). 
There is a working hypothesis that the increase in the number of hitch 
seen in 2023 is due to hitch presence in smaller lakes in the watershed 
(e.g., Blue Lakes, Tule Lake). The theory is that small populations of 
the Clear Lake hitch are successfully reproducing in these other 
waterbodies, and during a wet year, like the historically wet year in 
2023, individuals were washed from these smaller lakes into Clear Lake.

Regulatory and Analytical Framework

Regulatory Framework
    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the U.S. Fish 
and Wildlife Service and National Marine Fisheries Service (hereafter, 
the Services) can make reasonably reliable predictions about the 
threats to the species and the species' responses to those threats. We 
need not identify the foreseeable future in terms of a specific period 
of time. We will describe the foreseeable future on a case-by-case 
basis, using the best available data and consider the species' life-
history characteristics, threat-projection timeframes, and 
environmental variability. In other words, the foreseeable future is 
the period of time over which we can make reasonably reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction, in light of the conservation purposes of the Act.
Analytical Framework
    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess the Clear Lake hitch's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years); redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events); 
and representation is the ability of the species to adapt to both near- 
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the Clear Lake hitch's ecological requirements for survival 
and reproduction at the individual, population, and subspecies levels, 
and described the beneficial and risk factors influencing the 
subspecies' viability.
    The SSA process can be categorized into three sequential stages. 
During the

[[Page 4921]]

first stage, we evaluated the individual Clear Lake hitch's life-
history needs. The next stage involved an assessment of the historical 
and current condition of the subspecies' demographics and habitat 
characteristics, including an explanation of how the subspecies arrived 
at its current condition. The final stage of the SSA involved making 
predictions about the subspecies' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of the Clear Lake hitch to sustain populations 
in the wild over time, which we then used to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R8-
ES-2024-0161 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the Clear 
Lake hitch and its resources, and the threats that influence the 
subspecies' current and future condition, in order to assess the 
subspecies' overall viability and the risks to that viability.
    Additional information regarding the subspecies' needs can be found 
in the SSA report (Service 2024, pp. 24-36).
Subspecies Needs
    The Clear Lake hitch has four life stages: egg/embryo, larvae/fry, 
juveniles, and adults. Below, we assess the best available information 
to identify the specific habitat components needed to support 
individual fitness at all four life stages for the Clear Lake hitch. 
Each life stage requires different environmental and habitat components 
according to the different habitats used throughout the species' 
lifetime for spawning, feeding, and sheltering. Once fertilized, Clear 
Lake hitch eggs require adequate stream flow to stay submerged and 
oxygenated; fine to medium-sized, clean gravel along the margin or 
within the mid-channel of the stream to hold position during 
development; and presumably temperatures between 55.4 and 64.4 degrees 
Fahrenheit ([deg]F) (13 and 18 degrees Celsius ([deg]C)) for successful 
development (Shapovalov 1940 in Murphy 1948b, p. 102; Kimsey 1960, p. 
211; Swift 1965, pp. 75, 77; Moyle et al. 1995, p. 154; Moyle 2002, p. 
138; CDFW 2014, p. 8; Feyrer 2019a, p. 227). To initiate hatching, 
water temperatures must be maintained at 59 to 71.6 [deg]F (15 to 22 
[deg]C) for multiple days (Swift 1965, pp. 75, 77; Moyle 2002, p. 138).
    Newly hatched larvae/fry have a small yolk sac that they require 
for nourishment until they are able to swim freely and capture aquatic 
invertebrate prey (Kimsey 1960, p. 212). For cover and temperature 
regulation, downstream migrating fry likely require instream and/or 
overhanging streamside vegetation. The fry life stage requires adequate 
stream flow to stay alive, and adequate flow needs to be maintained 
until the young of year are able to migrate downstream into the lake 
(Murphy 1948b, pp. 105, 106, 109; Swift 1965, pp. 75, 77-79; Moyle et 
al. 1995, p. 154; Feyrer et al. 2019a, p. 1693).
    Within the lake, Clear Lake hitch fry and juveniles require stands 
of tule and/or other submerged aquatic vegetation to act as cover from 
predators and to provide for invertebrate prey items, including 
insects, planktonic crustaceans, and chironomid midges. Juveniles also 
require the lake water to be of sufficient quality (i.e., well- 
oxygenated (more than 2 milligrams per liter (mg/L) of oxygen) and 
minimally contaminated) and for water temperatures to be 59 [deg]F (15 
[deg]C) or greater for survival (Franson 2012, p. 15; CDFW 2014, p. 9). 
Juvenile hitch transition to adulthood when they reach about 2 in (50 
mm) and they move from the lake's nearshore habitat out into the open 
water of the lake.
    Adult Clear Lake hitch require a diet almost exclusively composed 
of Daphnia, but also other zooplankton species and adult midges and 
insects (Lindquist et al. 1943, p. 199; Geary 1978, pp. 17, 25; Geary 
and Moyle 1980, p. 388; Moyle et al. 1995, p. 153; Moyle 2002, pp. 137-
138; Moyle et al. 2014, p. 3). Adult Clear Lake hitch also require 
well-oxygenated (more than 2 mg/L of oxygen) and minimally contaminated 
water within the lake to ensure survival (Franson 2012, p. 15; CDFW 
2014, p. 9). Adult Clear Lake hitch are only found in the tributaries 
during the spawning season. A reproductive adult that is attempting to 
spawn requires an adequate amount of flow to migrate upstream to 
appropriate spawning locations and downstream back to the lake, and 
water temperatures between 55.4 and 64.4 [deg]F (13 and 18 [deg]C) to 
trigger spawning activity (Swift 1965, pp. 75, 77; Moyle 2002, p. 138; 
Feyrer 2019a, p. 227).
    In addition to stream spawning, some reproductive adults spawn 
within the lake (or ponds) instead of migrating into the lake 
tributaries. Lake or pond spawning Clear Lake hitch have been 
documented spawning in areas with only a mud substrate that contains no 
gravel, so it is possible lake- or pond-spawning individuals do not 
require gravel to successfully spawn (Kimsey 1960, p. 214; Geary 1978, 
p. 22).
Threats
    In assessing the Clear Lake hitch's viability, we describe the 
threats acting on the subspecies and its habitat. We also provide a 
description of historical and ongoing activities or regulations that 
ameliorate the threats and provide conservation benefits to the 
subspecies. The threats acting on the Clear Lake hitch include habitat 
loss, degradation, and modification; predation; competition; mercury 
mining; and the effects of climate change. Due to the different aquatic 
habitats (lake and tributary) used by the subspecies, there are threats 
acting on different life stages of the subspecies. These threats along 
with other ongoing and future stressors acting on the species may act 
synergistically to cause declines in resiliency across populations and 
analysis units. An example includes the effects of climate change with 
increased temperatures and aridity, may lead to more fires in the area. 
Burned areas create more runoff into the lake and tributary systems, 
further degrading habitat and affecting all life stages of the Clear 
Lake hitch. We note here that Thurston Lake does not have the level of 
threats acting on the subspecies that are affecting the hitch in Clear 
Lake.
Habitat Loss, Degradation, and Modification
    Habitat loss, degradation, and modification are affecting the 
subspecies in both the tributary and lake systems. Changes to the Clear 
Lake watershed have occurred since the mid-1800s. Various forms of past 
mining activities, agricultural and urban development, pesticide use, 
increased fire activity, past deforestation, and historical grazing 
practices have all contributed to the degradation of the Clear Lake 
watershed and are also the cause of toxic cyanobacteria blooms and 
periodic fish kills in the lake. The degradation of tributaries has 
changed their hydrology, reducing the amount of water retained in the 
streams over the Clear Lake hitch's spawning season. This loss of flow 
earlier in the season and the presence of numerous passage barriers in 
the tributaries have greatly reduced reproduction and early life stage 
survival (egg, larvae) of the Clear Lake hitch. The conversion of 
wetland habitats surrounding Clear Lake not only negatively impacted 
the lake's water quality but also reduced the amount of rearing habitat 
for any juvenile hitch that are able to migrate to the lake from their 
natal stream. This loss of rearing habitat also reduces early

[[Page 4922]]

life stage survival (juvenile), further reducing the likelihood of 
recruitment. The impacts to Clear Lake's water quality affect adult 
hitch survival, especially when poor lake conditions result in large 
fish kills.
    The Clear Lake hitch relies on tributary habitat for spawning and 
early rearing (Murphy 1951, p. 480). It is estimated that, 
historically, the tributaries to Clear Lake ran until at least 
September; currently, however, besides a few tributaries, most are 
known to dry by early summer or late spring (Murphy 1951, p. 480; B. 
Ewing in litt. 2020; Ewing 2020, pp. 3-5; Ewing 2021, pp. 6-7; Ewing 
2022b, p. 7; B. Ewing in litt. 2024). A combination of activities 
contributed, and are continuing to contribute, to the reduction in 
tributary flow during the Clear Lake hitch's spawning season. Increased 
fire activity and legacy effects from instream gravel removal and 
deforestation have likely increased the rate of runoff within the 
tributaries during the winter. For example, burned vegetation removes 
the root systems that hold soil in place and, with subsequent rainfall, 
increases runoff and sedimentation into the subspecies' habitat. Those 
same factors, possibly in conjunction with both in-creek and 
groundwater pumping for urban and agricultural uses, have greatly 
reduced the amount of flow that actually makes it to the lake during 
the summer (Murphy 1951, p. 480).
    Gravel mining activities in the Clear Lake watershed first began in 
the latter half of the 19th century and occurred in most of the 
spawning tributaries to Clear Lake (Suchanek et al. 2003, pp. 1253-
1254; Thompson et al. 2013, p. 19). Gravel mining originally occurred 
as scattered operations throughout the watershed until the early- to 
mid-20th century, when operations became centralized within the creeks 
(County of Lake 1992, p. 48; Richerson et al. 1994, p. III-19). This 
time period coincides with improved automobile technology and increased 
pressure to build more reliable roads (County of Lake 1992, p. 48). As 
the human population within the county grew in the 1960s and 70s, new 
houses and associated roads needed to be constructed to accommodate the 
new residents. Since the instream gravel was available as a convenient 
source of material, gravel was extracted from the tributaries and was 
used as building material for both homes and roads (County of Lake 
1992, p. 48; Richerson et al. 1994, p. VIII-150). Until the 1981 
partial moratorium on instream gravel extraction, approximately 1 
million metric tons of instream gravel was extracted from the watershed 
(Richerson et al. 1994, pp. III-19-III-20; CDFW 2014, p. 29). Although 
the amount of gravel mining within the Clear Lake tributaries has been 
reduced, mining and extraction are still known to occur in areas where 
the Clear Lake hitch occur, such as Scotts and Alley creeks (Murphy 
1948b, p. 106; Richerson et al. 2008, p. A260; CDFW 2014, p. 29; B. 
Ewing in litt. 2020).
    Past gravel mining in tributaries not only removed spawning 
substrate that the subspecies uses for reproduction and egg 
development, but it also lowered streambeds and destabilized channels, 
causing increased erosion, incision, and channelization. In addition, 
large swaths of riparian vegetation were removed from along the 
tributaries to allow access for gravel extraction, further exacerbating 
the issues with erosion. The flushing of eroded material not only 
negatively impacted tributaries by increasing the amount of suspended 
sediments and silt within the creek, ultimately increasing turbidity in 
some tributaries to zero visibility, but it also negatively impacted 
the lake ecosystem when those sediments eventually were transported 
into the lake (CDFG 1955, entire; Richerson et al. 1994, pp. III-19, 
VIII-2; Service 2024, pp. 44-48; Suchanek et al. 2003, p. 1254; CDFW 
2014, pp. 29, 45).
    In addition to gravel mining, agricultural practices have impacted, 
and still are impacting, the Clear Lake hitch's habitat. Agricultural 
production in the Clear Lake area has been important since the mid-
1800s with crops that included apples, almonds, grapes, nectarines, 
peaches, pears, plums, and prunes, many of which are still grown today 
(Suchanek et al. 2003, p. 1256; U.S. Department of Agriculture (USDA) 
2023, entire). Much of the land surrounding Clear Lake has been 
converted from forest lands to agricultural use. Large-scale 
deforestation and land conversion within the watershed began in the 
mid-19th century. The large-scale forest removal within the Clear Lake 
watershed increased the amount of erosion occurring in the tributaries, 
contributing to bank incision within the tributaries and causing 
increased sediment and nutrient transport into the lake (Suchanek et 
al. 2003, pp. 1247-1248). Increased erosion and bank cutting decrease 
the amount of time that water is retained within the tributaries, which 
affects water quantity and flow needed by the subspecies.
    Agricultural development is found throughout the watershed; 
however, it is most concentrated in the southwestern area of the 
watershed, primarily near Kelsey and Adobe creeks (USDA 2023, entire). 
The presence of agricultural production in the watershed not only has 
an impact on the amount of water flowing in the tributaries to Clear 
Lake, but it likely also increases the amounts of contaminants, in the 
form of pesticides and fertilizers, and sediment entering the lake.
    Pesticides are used for agriculture production across the region. 
Pesticides not only affect the habitat but may also affect certain life 
stages of the Clear Lake hitch and affect the subspecies' prey species. 
The reported application of pesticides on agricultural lands in the 
region has increased from 2008 to 2021. In 2008, more than 589,500 
pounds of different forms of chemicals used as pesticides were applied 
in Lake County (California Pesticide Information Portal (CALPIP) 2019, 
unpaginated). In 2021, that amount increased to almost 741,000 pounds 
(CALPIP 2021, unpaginated). Pesticides are also known to be used for 
illegal cannabis crops, and it is possible that pesticides associated 
with illegal grows could drain into the Clear Lake watershed, further 
exacerbating declining water quality conditions. The primary concerns 
of pesticide effects on Clear Lake hitch are the high toxicity. Growers 
can add these chemicals to their irrigation systems, causing the 
chemicals to seep into the surrounding soil and waterways (California 
Department of Pesticide Regulation 2021, p. 2; USDA 2023, entire). 
Pesticides are known to cause fish casualties, growth delays, and 
swimming abnormalities, making fish more susceptible to predation 
(Baker 2018, pp. 2-3).
    Fertilizers that get into waterways can cause nutrient imbalances 
that affect oxygen levels in the water, causing cyanobacteria blooms 
and fish kills (Baker 2018, p. 6). Another concern is water diversions 
associated with these illegal cultivation sites, which can block fish 
passage, change flow regimes, and cause other secondary effects (Baker 
2018, p. 6). However, it is unknown what effect agricultural pesticides 
or pesticides associated with illegal grows are having on the aquatic 
environment in Clear Lake or if pesticides are being transported 
through tributaries into the lake (Suchanek et al. 2003, p. 1252).
Herbicides Are Used To Control Nonnative Aquatic Vegetation in Clear 
Lake
    KomeenTM (copper sulfate) and SONARTM 
(fluridone) have been applied in the lake to control Hydrilla 
verticillata, a highly invasive, submerged aquatic weed (Suchanek et

[[Page 4923]]

al. 2003, p. 1250; CDFW 2014, p. 32). Two herbicides were used to 
target different parts of the plant; Komeen targets Hydrilla vegetative 
growth, while SONAR treats the tubers (Suchanek et al. 2003, p. 1250). 
SONAR is considered less toxic than Komeen because SONAR is a systemic 
herbicide that is slowly absorbed in the vascular system; SONAR also 
impacts similar non-target vegetation such as tule and other submerged 
vegetation (Bairrington 2000, pp. 64-65; CDFW 2014, p. 32). Because 
juvenile Clear Lake hitch require tule habitat for cover and prey, the 
use of Komeen can indirectly impact the hitch by reducing the amount of 
rearing habitat (CDFW 2014, p. 32). The use of the herbicide, SONAR, at 
high concentrations may have an impact on early hitch development.
    To meet the needs for agricultural production, crops require 
sufficient water. Water extraction and the early drawdown of the 
tributaries, in conjunction with habitat modifications throughout the 
watershed, likely led to the extinction of the Clear Lake splittail 
(Pogonichthys ciscoides), another stream-spawning native fish 
restricted to the Clear Lake watershed (Moyle 2002, pp. 138-139; CDFW 
2014, p. 27). The Clear Lake splittail spawned later in the season than 
the Clear Lake hitch does, and, as the tributaries began to dry earlier 
in the season, Clear Lake splittail young were not able to migrate to 
the lake (Cook et al. 1966, p. 146; Moyle 2002, pp. 138-139; CDFW 2014, 
p. 27).
    Water extraction continues throughout the watershed today for 
agricultural and domestic purposes. Both surface and ground water are 
being diverted from Clear Lake tributaries (legally and illegally) 
(CDFW 2014, p. 27), with the primary supply, about 60 percent, coming 
from groundwater sources in an average year (County of Lake 2014, 
entire; Clear Lake Hitch Summit Agenda and Presentations 2023, p. 18). 
These particular diversions are legal extractions conducted under 
riparian and water rights associated with land ownership. Surface water 
is diverted via intake pumps, and groundwater is extracted via the 
installation of shallow wells near the tributary channel where they 
capture underflow (CDFW 2014, p. 27). In 2013 and 2014, water rights 
users in Kelsey Creek used 85 and 134.5 million gallons of water, 
respectively, as well as 31.4 million gallons in each of those years 
from Adobe Creek. In addition, from 2008 to 2014, 18 private water 
wells were permitted for installation along the two creeks. Although 
this amount of water withdrawal is legally permissible, it is unknown 
what effects this amount of water extraction is having on the hydrology 
of these tributaries and the Clear Lake hitch (Big Valley 2015, p. 4).
    Water extractions, both legal and illegal, are often cited as one 
of the primary reasons for the reduction in the Clear Lake hitch's 
population; however, although stream gauges are installed in some of 
the tributaries and continue to be installed, studies on the effects 
that water extraction is having on Clear Lake tributaries or the Clear 
Lake hitch are still in initial stages (Clear Lake Hitch Summit Agenda 
and Presentations 2023, pp. 63-72). The CDFW compared stream flow 
conditions at the U.S. Geological Survey (USGS) gauge on Kelsey Creek 
(USGS Station 11449500) and catch data from the early 1990s. Both 1990 
and 1991 were considered dry water years with below average tributary 
flow during the spring; however, the highest number of hitch were 
captured during seining efforts during those years. Flow conditions 
improved to average or above average for the following 3 years, but the 
number of fish captured declined (CDFW 2014, p. 27). Clear Lake hitch 
abundance varies from year to year due to a number of factors, 
including streamflow. More data are needed to better understand the 
relationship between streamflow and population numbers as well as the 
effects that water extraction has on streamflow.
    Historical land conversion was not only for the purposes of 
agricultural crops but also for livestock. The effects of livestock on 
the land can include overgrazing and the subsequent effects of 
exacerbated erosion and water quality degradation. Although overgrazing 
no longer appears to be occurring in the Clear Lake watershed, it was 
an issue until the mid-20th century. Past overgrazing in the watershed 
resulted in the loss of streamside vegetation, which decreased soil 
stability and increased the rate of runoff within the creeks, 
effectively reducing the amount of time water is retained within the 
channel (Murphy 1948b, p. 106; Suchanek et al. 2003, p. 1257). Although 
the amount of grazing pressure has decreased in the watershed, the 
impacts of past practices are still contributing to the issues seen in 
the watershed today.
    Clear Lake hitch are affected by passage barriers that block the 
ability of the fish to move up and downstream. The lack of adequate 
tributary flow can act as a barrier to migrating fish, reducing the 
amount of available spawning habitat, and leaving young stranded before 
they can migrate to the lake. However, even when flow conditions allow 
for migration, most of the tributaries in the watershed contain 
physical barriers that prevent hitch passage, reducing the amount of 
spawning and rearing habitat available.
    The installation of dams, diversions, roadways, and crossings have 
had a negative impact on migrating hitch by eliminating access to 
portions of stream with suitable spawning habitat or impeding passage 
during certain years until specific flow conditions (i.e., high flow) 
are met (Suchanek et al. 2003, p. 1254; CDFW 2014, pp. 45, 69-70). 
Using a variety of data sources, CDFW estimated that more than 92 
percent of the Clear Lake hitch's historical 180 stream miles of 
tributary habitat is currently blocked or has reduced access due to the 
presence of barriers (CDFW 2014, pp. 24-25). In addition, since the 
presence of a barrier on a spawning stream reduces the amount of 
available spawning habitat, reproducing adults have to compete for 
available spawning substrate. Fertilized eggs have been known to 
accumulate just below a barrier to the point that they will die due to 
oxygen deprivation (Robinson Rancheria 2015, p. 1).
    Numerous dam structures can be found throughout the Clear Lake 
watershed, including dams on Kelsey, Adobe, Highland Springs, and 
Manning creeks. These dams were installed in the mid- to late 20th 
century and were installed primarily for irrigation and recreation 
(Suchanek et al. 2003, p. 1248). In addition, CDFW identified potential 
barriers on Lyon's Creek, Scott's Creek, Seigler Canyon Creek, Clover 
Creek, and Kelsey Creek (Ewing 2016a, entire). Additional barriers in 
the watershed include flood and water infrastructure that are not 
regularly maintained that may block hitch passage (CDFW 2014, p. 69). 
Flood control projects have also contributed to increased nutrient and 
sediment transport in the watershed by channelizing and armoring 
tributaries with rip-rap and by reclaiming large portions of wetland 
habitat that once surrounded the lake (CDFW 2014, p. 29). There are 
almost 14 miles of levee structures that are maintained by the U.S. 
Army Corps of Engineers (USACE) on Scotts, Middle, Clover, and Alley 
creeks (USACE 2012, p. 3). The loss of wetland habitat and increased 
nutrient and sediment transport further exacerbates water quality 
issues within Clear Lake, likely reducing hitch survival. Further, the 
loss of wetland habitat to install the flood projects reduced the 
amount of rearing habitat for juvenile hitch, reducing the likelihood 
of successful recruitment. The lake habitat for the Clear Lake hitch is 
also affected by habitat loss, degradation, and modification through 
wetland/tule habitat loss, cyanobacteria

[[Page 4924]]

(blue- green algae) blooms, and fish kills. Because of the impacts from 
the historical land conversion, surrounding wetland habitats were lost, 
essentially removing Clear Lake's natural filter. Over time, increasing 
amounts of sediment and nutrients from the degraded tributaries were 
transported directly into the lake, and nutrient inputs from 
surrounding urban and agricultural development ended up in the lake. 
This increase in nutrients and sediments entering Clear Lake degraded 
its water quality, resulting in increased cyanobacteria blooms that 
contributed to or caused periodic fish kills.
    With the loss of the extensive tule expanses within the lake's 
nearshore habitat, there has been an increase in the amount of 
sedimentation and nutrients entering the lake (Prine et al. 1975, p. 
21). Wetlands act as a filter for sediments and nutrients transported 
from the tributaries into the lake and the loss of these large wetland 
complexes directly surrounding the lake has had negative consequences 
to Clear Lake's water quality (Richerson et al. 1994, pp. III-1, V-1, 
VIII-1; Suchanek et al. 2003, p. 1255). One result from the wetland 
loss and water quality impacts is blue-green algae blooms that occur in 
Clear Lake from phosphorus input.
    The blue-green algae, a cyanobacteria and not an actual alga, will 
float to the surface of the lake during the day and can form large mats 
or scums. These mats will either be broken down or re-submerged into 
the lake via wind action or will deteriorate from sun exposure. 
Phosphorus is found naturally in underlying sediments within the Clear 
Lake watershed (Richerson et al. 1994, p. V-99), and the degradation of 
tributaries have exposed those sediments, allowing for transport into 
the lake during rain events. A major factor in the persistence and 
formation of cyanobacteria blooms in Clear Lake relates to periods of 
anoxia (deficiency of oxygen), and where phosphorus is released from 
sediments (Florea et al. 2022, p. ii). Blue-green algae blooms can be 
toxic to fish (Gorham 1960, p. 242; Prine et al. 1975, p. 23; Richerson 
et al. 1994, p. III-9); however, it is unknown what impact they have on 
the Clear Lake hitch.
    Fires have occurred naturally in the Clear Lake watershed as part 
of the ecological cycle; however, with Euro-American settlement in the 
middle of the 19th century, widespread intentional burning occurred 
throughout the watershed to clear brush or promote grass growth for 
livestock grazing (Suchanek et al. 2003, pp. 1243-1245, 1246-1247). 
Numerous fires have occurred in the Clear Lake area during the 20th 
century, with several large ((10,000+ acres (ac), 4047 hectares (ha)) 
fires occurring directly in the watershed (Suchanek et al. 2003, pp. 
1244, 1248). The fire seasons in California during 2017, 2018, and 2020 
were some of the worst on record. The 2018 Mendocino Fire Complex, a 
portion of which occurred in Lake County, was the third largest fire on 
record in California (CalFire 2022a, entire). Past fire suppression 
practices within the State of California have reduced the occurrence of 
fire, but due to the accompanying fuel accumulation, these practices 
have made fires more devastating when they do occur (Suchanek et al. 
2003, p. 1247). Fire activity within the watershed results in increased 
erosion and bank incision, which channelize the stream and increase 
water turbidity; fire activity is likely to continue to increase within 
the Clear Lake watershed (CalFire 2022b, entire). Channelization can 
decrease the amount of time water is retained within the tributary 
channel (Murphy 1948b, p. 106; County of Lake 1992, p. 13). A reduction 
of flow in the tributaries during the spawning season can eliminate or 
greatly reduce the likelihood for successful reproduction and/or 
recruitment, and due to the Clear Lake hitch's very narrow range, the 
effects of channelization can impact the subspecies' viability.
Summary of Habitat Loss, Degradation, And Modification
    Habitat loss, degradation, and modification due to agricultural and 
urban development, pesticide use, increased fire activity, and legacy 
impacts from past mining activities, past deforestation, and historical 
grazing practices will continue to affect the Clear Lake hitch at the 
individual, population, and subspecies level into the future throughout 
its range.
    The Clear Lake hitch habitats that are affected include the 
tributaries and lake habitat. Impacts to both habitat types will affect 
the Clear Lake hitch by reducing survival and recruitment, which 
reduces resiliency by decreasing the size of the overall population. 
For the tributaries, the loss of consistent flow during the spawning 
season is seen throughout the Clear Lake hitch's range. This influence 
is affecting the hitch at the individual, population, and subspecies 
level and is likely to continue into the future. The loss of consistent 
tributary flow, loss of wetland/tule habitat, and reduced lake water 
quality, has reduced, and will continue to reduce, population 
resiliency by reducing reproductive success, early life stage survival, 
and the likelihood of recruitment. Loss of resiliency may reduce the 
Clear Lake hitch's overall representation and redundancy because fewer 
individuals spawn in each of the tributaries and natal habitat types. 
The reduction in resiliency may result in a reduction to the hitch's 
overall representation and redundancy.
    There are no existing regulatory mechanisms or management actions 
that fully ameliorate habitat loss, degradation, and modification 
within the watershed, primarily because much of the degradation 
occurred in the past, although the effects are still occurring today 
and will continue into the future. There are planned activities 
associated with the Clear Lake watershed, the Middle Creek Flood Damage 
Reduction and Ecosystem Restoration Project, that will benefit improve 
water quality, increase available wetland habitat for the Clear Lake 
hitch and mitigate some of the ongoing habitat loss, degradation, and 
modification.
    Construction of this project would greatly benefit juvenile hitch 
by providing increased cover from predators and competitors, and 
increased prey abundance The county's Clear Lake Shoreline Ordinance 
has prohibited the destruction of tule on residential properties along 
the shoreline around Clear Lake and requires full mitigation for any 
tule habitat that is destroyed. This ordinance benefits the Clear Lake 
hitch by providing a consistent amount of tule habitat for juveniles. 
In addition, the county recently began a tule planting initiative that 
informs the public about the importance of tule habitat and how to 
plant tule (Lake County 2024a, entire).
Predation
    Non-native fish introduced into Clear Lake for recreational or 
biological control purposes are known to prey upon the Clear Lake hitch 
and all introduced piscivorous (fish-eating) fish species in Clear Lake 
are potential predators of Clear Lake hitch. Clear Lake hitch have been 
found in the stomach contents of nonnative fish species in the Clear 
Lake watershed including largemouth bass (Micropterus nigricans) and 
channel catfish (Ictalurus punctatus; Macedo 1994, p. 5; Moyle et al. 
1995, pp. 154 -155; Moyle et al. 2014, p. 10). Mississippi silversides 
(Menidia audens) are also known to prey on larval fish, so it is likely 
some predation of Clear Lake hitch larvae by silversides is occurring 
in Clear Lake (Bennett and Moyle 1996, pp. 526, 529; Moyle et al. 2014, 
p. 9-10). The nonnative species predation will

[[Page 4925]]

continue to affect the Clear Lake hitch at the individual, population, 
and subspecies level into the future throughout its range. Nonnative 
species predation pressure within Clear Lake impacts the hitch by 
reducing survival and recruitment, which reduces resiliency by 
decreasing the size of the overall population.
    Predation pressure within the tributaries to Clear Lake impacts the 
hitch by reducing survival, reproduction, and recruitment, which 
further reduces resiliency by decreasing the size of the spawning 
population in any given year and by reducing the overall population 
altogether. This loss of resiliency may reduce the hitch's overall 
representation and redundancy because it results in fewer individuals 
spawning in each of the tributaries and natal habitat types.
Competition
    Competition from other nonnative aquatic species affects the Clear 
Lake hitch by reducing the available resources for breeding, feeding, 
and sheltering. For example, largemouth bass (Micropterus nigricans) 
feed on insects and zooplankton, directly competing with both juvenile 
and adult hitch for food resources (Moyle and Holzhauser 1978, pp. 577-
578, 581). Threadfin shad (Dorosoma petenense) and Mississippi 
silversides also compete with the Clear Lake hitch because they depend 
on the same aquatic prey base (Anderson et al. 1986, entire; 
Bairrington 2000, p. 33; CDFW 2014, p. 35). During years when 
silverside or threadfin shad abundances are especially high, they could 
reduce or deplete prey resources on which the hitch depends. A 
comparison of hitch trend data and abundances of silversides and 
threadfin shad suggests there may be a correlation between their 
abundances (CDFW 2014, p. 35), but more detailed studies need to be 
completed. There are currently no regulatory mechanisms that address 
competition by non-native species.
Mercury Mining Contaminants
    Historically, small-scale commercial mining operations along the 
shores of Clear Lake occurred in 1864 and 1865. Originally, the mining 
included borax and sulfur (Suchanek et al. 2003, p. 1253). Large-scale 
commercial sulfur extraction along the eastern shore of Clear Lake 
began in 1865, when the Sulphur Bank Mercury Mine was established. The 
sulfur mining operation switched over to mercury mining in 1873, after 
mercury sulfide deposits were found beneath their sulfur source. Early 
extraction methods were not as destructive; however, in 1927, the mine 
began to implement open- pit mining at a large-scale level and would 
bulldoze any waste products into the lake (Richerson et al. 2008, p. 
A259). The company continued to mine sporadically throughout the 1950s 
until the Sulphur Bank Mercury Mine was officially closed in 1957, 
although waste continued to contaminate the lake well into the 1990s 
(Suchanek et al. 2008, p. A153).
    The highest concentrations of mercury were found in the Oaks Arm 
area, near the southeastern area of the lake, which is where the 
Sulphur Bank Mercury Mine is located; however, elevated mercury levels 
have also been detected lake-wide (Richerson et al. 2008, p. A271). The 
use of heavy ground-moving equipment associated with the open-pit 
mining also likely contributed to the algal blooms seen in the lake; 
this equipment can excavate and disturb large swaths of sediments, 
which increase nutrient runoff (Richerson et al. 2008, p. A260).
    Mercury and other mining-associated contaminants have entered the 
lake via erosion of waste piles, purposeful dumping/bulldozing of mine 
waste, atmospheric deposition, and subsurface drainage (Richerson et 
al. 2008, p. A275). Since 1992, the Environmental Protection Agency 
(EPA) has implemented numerous remediation projects to address the 
continued mercury contamination originating from the Sulphur Bank 
Mercury Mine. The remediation projects include the removal of waste 
rock piles that erode and discharge mercury, removal of contaminated 
soil from residential areas, installation of diversions to prevent 
contaminated water and sediments from entering Clear Lake, closure of 
three abandoned geothermal wells, capping of mine waste used to build 
an old road, and installation of two test sediment covers to contain 
mercury- contaminated sediment within Clear Lake (Richerson et al. 
2008, pp. A265, A275; EPA 2019, entire).
    The Sulphur Bank Mercury Mine became an EPA Superfund Site in 1990, 
due to the elevated mercury levels found in Clear Lake's larger 
piscivorous fish (Curtis 1977, p. 1; Suchanek et al. 2003, p. 1253; 
Thompson et al. 2013, p. 19). Elevated levels of mercury in fish can 
significantly impair reproductive success; however, effects can vary 
based on a multitude of factors, including species and life stage, and 
there are no specific studies for the Clear Lake hitch (Crump and 
Trudeau 2008, pp. 902, 904; CDFW 2014, pp. 32-33). Mercury 
concentrations found in developed hitch caught in Clear Lake in 2019 
and 2020 averaged 0.14 milligrams per kilogram (mg/kg) (Pierce et al. 
2022, entire), which exceed the Regional Water Quality Control Board's 
proposed target of 0.09 mg/kg for fish in trophic level 3, which 
includes the Clear Lake hitch (CEPA 2008, p. 1). Although these levels 
may exceed the Regional Water Quality Control Board's target, the best 
available science does not provide the lethal concentration of mercury 
specific for Clear Lake hitch or levels that may cause acute or chronic 
health effects to the Clear Lake hitch, or whether they are currently 
exposed to those levels in Clear Lake. The threat of mercury mining 
contaminants impacts the Clear Lake population and has not affected the 
Thurston Lake population.
Climate Change
    Climate change affects the Clear Lake hitch and its habitat due to 
shifts in normal weather patterns. Changes in temperature and 
precipitation regimes can affect water quality and quantity for the 
subspecies and can exacerbate other effects, such as increased drought 
and fire frequency. Annual average air temperatures in California have 
increased by 1.5 [deg]F (0.83 [deg]C) since the beginning of the 20th 
century (Bales 2013, p. 2).
    Temperatures are expected to continue to increase in California's 
North Coast Region, which includes Lake County (Grantham 2018, entire). 
Drought conditions within the Clear Lake watershed can have detrimental 
effects on the Clear Lake hitch by reducing the amount of flow within 
the tributaries over the spawning season, reducing water quality in the 
lake, and possibly reducing emergent vegetation growth in the lake. In 
1946 and 1947, there was almost a complete lack of spawning runs due to 
the lack of water flow in the tributaries (Murphy 1948b, p. 105). 
However, the hitch's ability to spawn along the lake shore provides an 
alternative to tributary spawning for at least a small proportion of 
the population.
    More arid conditions can impact the Clear Lake hitch by reducing 
the amount of water that enters, and the time period that water is 
retained within, the tributaries and wetland habitats that the hitch 
requires for spawning and rearing. Increases in aridity also reduce 
wetland/emergent vegetation growth, which the hitch requires for 
rearing and for cover from predators. All of these factors can impact 
the reproductive success and recruitment of the hitch; these factors 
could also reduce the hitch's survival if flows drop too drastically in 
the tributaries and wetland habitats, or if

[[Page 4926]]

hitch are subject to increased predation due to a reduction in cover 
from aquatic vegetation.
    A reduction of flow in the tributaries during the spawning season 
can eliminate or greatly reduce the likelihood for successful 
reproduction and/or recruitment, and due to the Clear Lake hitch's very 
narrow range, the effects of drought will impact the entire subspecies. 
The ability to spawn along the shore provides for some redundancy 
within each population, but it is unknown whether shore spawning would 
be able to support a viable population in the lakes over the long term. 
Having a longer lifespan (4 to 6+ years) is likely an adaptation to 
variable environmental conditions, but prolonged droughts can have 
devastating effects on the overall population, especially in 
conjunction with other factors that are currently acting on the Clear 
Lake hitch.
    There have been numerous efforts over the last 10 years to save 
Clear Lake hitch that become stranded in pools within the tributaries 
when the tributaries began to rapidly dry up. In March 2014, 197 
individuals were rescued from two pools within Adobe Creek, and the 
surviving fish were released into Kelsey Creek (Ewing 2014a, entire). A 
few months later, in June 2014, more than 1,400 hitch were rescued from 
Cooper Creek and 389 hitch were rescued from Adobe Creek when the flow 
within those creeks began to rapidly drop. The surviving individuals 
from both rescues were released into Rodman Slough and at the Konocti 
Vista Casino boat ramp, respectively (Ewing 2014e, pp. 3, 6). 
Unfortunately, during visual spawning surveys that same year, 
approximately 300 adult hitch were found dead in a portion of Adobe 
Creek that had dried (Ewing 2014c, p. 7).
    During the spring of 2018, numerous young of year were stranded in 
a pool within Cole Creek when the water flow began to rapidly drop. The 
creek no longer had continuous flow into the lake, and the small pool 
where the fish were stranded would have eventually dried, killing all 
of the 3,100+ young fish. Fortunately, members of Robinson Rancheria 
and CDFW were able to rescue the fish and transport them for release at 
Clear Lake State Park, which is located where Cole Creek enters the 
lake (Ewing 2018a, p. 1). In April 2022, 268 individuals were rescued 
from two pools within Adobe Creek and transported to Konocti Casino 
Harbor on Clear Lake where they were released (Ewing 2022a, p. 1). On 
August 8, 2022, 295 hitch were rescued from a pool off of Cooper Creek; 
the rescued hitch were translocated to Upper Blue Lake for release 
(Santana 2022, p. 2). The effects of climate change will continue to 
affect both Clear Lake hitch populations, Clear Lake and Thurston Lake.
    Regulatory mechanisms and management actions that are or could 
potentially provide some protection from the effects of climate change 
include the California Global Warming Solutions Act. This Act addresses 
climate change by reducing greenhouse gas emissions within California. 
There are no regulatory mechanisms or management actions that fully 
address the effects of the climate change.
Synergistic Effects
    Multiple influencing factors can act on a species or its habitat at 
the same time, which can result in impacts that are not accounted for 
when factors are analyzed separately. Factors that appear minor when 
considered alone may have greater impacts on individuals, populations, 
or habitat when analyzed in combination with other factors.
    The Clear Lake hitch evolved in Lake County, California, which has 
always had a highly variable climate with natural periodic droughts. 
However, the degradation and loss of water retention within their 
spawning streams and the loss of large stretches of suitable spawning 
habitat due to various instream barriers has likely reduced 
reproductive success and recruitment. During drought conditions this 
can reduce or eliminate all tributary- based spawning in a given year. 
If drought conditions persist over multiple years, stream- based 
reproduction can also be reduced or eliminated for multiple years. 
Furthermore, climate change projections show the Clear Lake area will 
experience more varied precipitation and higher air temperatures during 
the spring, which could result in even less water flow being retained 
within the tributary streams during the hitch's spawning season (Pierce 
et al. 2013, pp. 842, 844, 848-850. Although the hitch has the ability 
to spawn within the lake, it is unknown whether that method of 
reproduction would be able to sustain a viable population of hitch in 
Clear Lake.
    Additionally, groundwater extraction for agriculture and other uses 
likely affects the Clear Lake hitch and its habitat, particularly 
combined with other chronic threats, such as habitat loss, degradation, 
and modification along with climate change that are synergistically 
acting on the subspecies. Water extraction in the summer is likely to 
lower the water level in pool habitat that acts as refugia for the 
subspecies in disconnected tributaries until those tributaries become 
reconnected by spring rains. It is the loss of this pool habitat that 
affects the Clear Lake hitch resiliency.
    The combination of wetland habitat loss and drought can increase 
predation pressure and competition. Past habitat loss has left only a 
small proportion of wetland habitat surrounding Clear Lake and drought 
conditions can reduce the amount of emergent vegetation growth within 
those remaining wetland habitats. This reduction in emergent vegetative 
growth reduces the amount of cover the hitch uses to hide from 
predators, increasing predation pressure. It can also increase 
competition as more fish concentrate into this limited habitat type.
Conservation Efforts and Regulatory Mechanisms
    The Clear Lake hitch is protected through existing regulatory 
mechanisms and management actions that result in conservation of the 
subspecies or its habitat or both. Additional actions from Tribes and 
other interested groups also provide a benefit to the subspecies. 
Below, we present some of the ongoing efforts that provide conservation 
benefits to the Clear Lake hitch or its habitat or both from Federal, 
State, Tribal, and local regulations and management plans.
I. Federal
U.S. Forest Service (USFS)
    The Clear Lake hitch has been designated a USFS sensitive species. 
Species identified as sensitive by the USFS are species in which 
population viability is a concern, as evidenced by significant current 
or predicted downward trends in population numbers or density, or 
significant current or predicted downward trends in habitat capability 
that would reduce a species' existing distribution, or both. The 
designation of sensitive species ensures USFS: assists States, 
including California, in achieving their goals for conservation of 
endemic species; as part of the process under the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), reviews 
programs and activities, through a biological evaluation, to determine 
their potential effect on sensitive species; avoids or minimizes 
impacts to species whose viability has been identified as a concern; if 
impacts cannot be avoided, analyzes the significance of potential 
adverse effects on the population or its habitat within the area of 
concern and on the species as a whole; establishes management 
objectives in cooperation with the States when projects on

[[Page 4927]]

National Forest System lands may have a significant effect on sensitive 
species population numbers or distributions; and establishes objectives 
for Federal candidate species, in cooperation with the Service or 
National Marine Fisheries Service, and the States. Most of the Clear 
Lake hitch's range is on private land and only the headwaters of a few 
tributaries to the east of Clear Lake fall within USFS lands.
II. State
California Endangered Species Act (CESA)
    On August 6, 2014, the CFGC determined that the Clear Lake hitch 
warranted listing as a threatened species under the CESA due to the 
present or threatened modification or destruction of the subspecies' 
habitat, predation on and competition with the hitch, and the 
anticipated impacts of climate change (CDFW 2014, pp. 1-2). Section 
2067 of the California Fish and Game Code defines a ``threatened 
species'' as a native species or subspecies of bird, mammal, fish, 
amphibian, reptile, or plant that, although not presently threatened 
with extinction, is likely to become an endangered species in the 
foreseeable future in the absence of the special protection and 
management efforts required by the State. As a threatened species under 
the CESA, the take of Clear Lake hitch individuals is prohibited unless 
the take is authorized by a State-issued permit.
    However, CESA regulations only apply to the take of individuals 
(i.e., they do not apply to the destruction or modification of 
habitat). It should be noted that California's definition of take (see 
section 86 of the California Fish and Game Code) is not the same as the 
Act's definition of take (16 U.S.C. 1532(19)).
California Environmental Quality Act (CEQA) of 1970
    The CEQA does not regulate land use but requires all local and 
State agencies in California to avoid or minimize environmental damage, 
where feasible, during the course of proposed projects. The CEQA 
provides protection for species that are State-listed or federally 
listed as endangered, threatened, or rare. Compliance with the CEQA may 
be required for watershed restoration work and any restoration work 
that requires a ``lake or streambed alteration agreement'' (also known 
as a ``1600 agreement''; see sections 1600-1616 of the California Game 
and Fish Code).
Sustainable Groundwater Management Act (SGMA)
    The SGMA is a California State law that provides a framework for 
sustainable groundwater management in California. Under section 
10933(b) of the California Water Code, groundwater basins throughout 
the State have been classified into four categories of prioritization 
(high, medium, low, very low). Phase 1 of the categorization process 
was finalized in January 2019, and 458 basins were prioritized during 
that phase. Fifty-seven basins were categorized under phase 2, which 
was finalized on December 17, 2019 (DWR 2020, p. AD-3). The SGMA 
requires water agencies and governments of high- priority and medium-
priority basins to reduce overdraft and bring groundwater basins into 
balance. The State of California ensures the SGMA goals are met as 
planned.
    Several groundwater basins in the Clear Lake watershed were 
prioritized during the phase 1 prioritization. The Big Valley basin to 
the southwest of Clear Lake received a medium prioritization, whereas 
the other eight basins in the watershed (Scotts Valley, Upper Lake 
Valley, Middle Creek, Long Valley, High Valley, Clear Lake Cache 
Formation, Burns Valley, and Lower Lake Valley) were given a low 
priority. The high- priority and medium-priority basins will be managed 
by a group of local agencies, referred to as ``groundwater 
sustainability agencies,'' and they will be tasked with reaching 
sustainability in their basin within 20 years of implementing their 
groundwater sustainability plans. Groundwater sustainability agencies 
have been formed for the Big Valley and Scotts Valley basins, and a 
groundwater sustainability plan was developed for the Big Valley basin 
and published in January 2022 (DWR 2019a, entire; DWR 2019b, entire; 
DWR 2019c, entire; DWR 2022, entire). Reducing overdraft from 
groundwater pumping in the Big Valley basin could improve flow 
conditions in Thompson Creek, Adobe Creek, Kelsey Creek, Cole Creek, 
McGaugh Slough, and Manning Creek and could provide sufficient water 
quantity for the Clear Lake hitch to traverse the tributaries during 
their spawning season.
III. Local
Clear Lake Integrated Watershed Management Plan (CLIWMP)
    The local resource conservation districts developed CLIWMP to 
document the historical and current conditions of the Clear Lake 
watershed and any management actions that have been, or are currently 
being, implemented. Actions to enhance and/or protect the watershed are 
then identified using that background information and timeframes for 
each action are described. The CLIWMP describes specific implementation 
actions needed to create an environmentally and economically healthy 
watershed, both for the benefit of the existing local community and for 
future generations (County of Lake et al. 2010a, entire). 
Implementation of the actions described in the CLIWMP would benefit the 
Clear Lake hitch by increasing the amount of wetland habitat used for 
rearing, improving fish passage within the tributary streams, and 
restoring degraded tributary stream and lake habitats. In addition to 
the CLIWMP, the local conservation districts also developed watershed 
assessments for Scotts, Middle, and Kelsey creeks. The purpose of those 
assessments is similar to the CLIWMP; they document the historical and 
current conditions of those watersheds and any management actions 
implemented. The assessments will aid in educating watershed users and 
landowners on the condition of that particular watershed, the 
management and restoration actions that need to be implemented to 
improve conditions, and how the conditions of those particular 
watersheds impact the condition of Clear Lake (County of Lake et al. 
2010b, entire; County of Lake et al. 2010c, entire; County of Lake et 
al. 2010d, entire). Aggregate Resources Management Plan
    Lake County developed an Aggregate Resources Management Plan 
(County of Lake 1992, entire) to address concerns about the impacts of 
gravel mining on the watershed. The plan describes the policies 
regarding mining in specific areas, identifies areas deemed as suitable 
for future mining projects, and informs the public about mining in Lake 
County. The plan calls for a moratorium on mining in certain creeks and 
limits mining activities to certain areas (County of Lake 1992, pp. 83-
86). The regulation of gravel mining in the county has reduced the rate 
of erosion in the tributaries and increased the amount of riparian 
habitat along the stream channels, where the Clear Lake hitch occurs. 
Although instream sources of gravel are no longer the primary source of 
aggregate in Lake County because gravel is now acquired from other 
sources, illegal gravel mining or extraction has been known to occur in 
the watershed (CEPA 2008, pp. 8, 89; B. Ewing in litt. 2020).

[[Page 4928]]

Middle Creek Flood Damage Reduction and Ecosystem Restoration Project
    The Middle Creek Flood Damage Reduction and Ecosystem Restoration 
Project (Middle Creek Project) is both a flood risk reduction project 
for urban and agricultural areas along the northern end of Clear Lake 
and an ecosystem restoration project that will improve degraded wetland 
habitat and water quality in Clear Lake. The Middle Creek Project area 
was once approximately 1,400 ac (567 ha) of wetland habitat that was 
lost in the early 1900s through the construction of levees and 
conversion to agricultural use.
    Because these levees are no longer functional and there is an 
urgent need to restore surrounding wetland habitats to improve the lake 
and the watershed, Lake County requested USACE assistance to evaluate 
the project in 1995. The Middle Creek Project consists of acquiring 
reclaimed land, breaching existing levees to flood historical wetland 
and floodplain areas, and reconnecting Scotts and Middle creeks. Final 
NEPA and CEQA review was completed in 2003 and 2004, respectively, and 
the Middle Creek Project was authorized under the Water Resources 
Development Act of 2007 (33 U.S.C. 2201 et seq.). Federal funding for 
the Middle Creek Project has not yet been appropriated to start project 
design; however, funding for land acquisition has been acquired (USACE 
2012, pp. 1-2; USACE 2023, entire).
    The Middle Creek Project will benefit the Clear Lake watershed by 
reducing the amount of sediment and nutrients entering Clear Lake, 
improving overall water quality. It will also increase the existing 
amount of wetland habitat within the Clear Lake watershed by 
approximately 79 percent (USACE 2012, p. 3). If the Middle Creek 
Project were to be implemented, it would benefit adult hitch by 
improving the water quality of Clear Lake, which would likely reduce 
the incidence of large fish kills. The Middle Creek Project would also 
greatly benefit juvenile hitch by increasing the amount of wetland 
habitat surrounding the lake, providing increased cover from predators 
and competitors, and increased prey abundance.
Clear Lake Shoreline Ordinance
    The destruction of woody species and tule on residential properties 
along the shoreline around Clear Lake is prohibited under section 23-15 
of the Clear Lake Shoreline Ordinance. These types of vegetation can be 
managed via mowing, pruning, or trimming, but those activities cannot 
result in the death of the plant. In addition, the ordinance applies a 
no-net-loss program for commercial, resort, or public properties that 
require mitigation for any areas of vegetation cleared by providing 
replacement plantings (County of Lake et al. 2010a, pp. ES-16, 3-10; 
CDFW 2014, p. 42). The measures associated with this ordinance benefit 
the Clear Lake hitch by providing a consistent amount of tule habitat 
for juveniles.
Clear Lake Hitch Conservation Strategy
    A group including local Tribes, local government, State agencies, 
and Federal agencies have been working on the development of a 
conservation strategy for the Clear Lake hitch. The strategy, which is 
still in draft form, documents the past and current status of the 
subspecies, describes the negative influences that have resulted in the 
subspecies' current status, and identifies the actions that will 
address those negative influences in order to maintain a viable 
population of Clear Lake hitch throughout the subspecies' range. This 
conservation strategy will provide benefits to the subspecies through 
public outreach regarding Clear Lake hitch conservation; it will also 
direct funds to implement actions or projects that will specifically 
benefit the hitch.
Clear Lake Hitch Task Force
    In August 2022, Tribal leaders and members of the Tribal 
Environmental Protection Agencies representing the Big Valley Rancheria 
of Pomo Indians, Elem Indian Colony Pomo Tribe, Robinson Rancheria Band 
of Pomo Indians, and the Habematolel Pomo of Upper Lake went before the 
CFGC to express their concern for the status of the Clear Lake hitch. 
To address these concerns and focus attention on the subspecies, the 
Clear Lake Hitch Task Force (Task Force) was formed. The Task Force had 
its first meeting on September 14, 2022, and consisted of Tribal and 
CDFW representatives.
    Since 2022, the Task Force has expanded to include the California 
Department of Water Resources, State Water Resources Control Board, 
Central Valley Regional Water Board, Lake County Water Resources 
Department, Fish and Game Commission, California Natural Resources 
Agency, Service, USGS, California Conservation Corps, Bureau of Land 
Management (BLM), USACE, and USFS. The Task Force's mission involves 
collaborative planning for long-term responses to the decline in the 
Clear Lake hitch population, coordinating projects, identifying funding 
sources, and facilitating information exchange among agencies. The Task 
Force meets monthly and has held three summits to help relay 
information and coordinate projects between different agencies.
IV. Miscellaneous
    Lake County, the California Department of Transportation, USFS, 
State Water Resources Control Board, and BLM have undertaken various 
actions to prevent or reduce nutrients and contaminants from entering 
Clear Lake, or to track the amount of water being used throughout the 
watershed (West Lake Resource Conservation District, undated, entire; 
CDFW 2014, p. 41). These actions include the Eightmile Valley Sediment 
Reduction and Habitat Enhancement Project, for which BLM and the Scotts 
Valley Band of Pomo Indians received a grant (CDFW 2014, p. 41). CDFW 
has two conceptual area protection plans (CAPPs) that cover different 
areas of the Clear Lake watershed. A CAPP allows different 
organizations and agencies to apply for land acquisition funding 
through the Wildlife Conservation Board. Both plans focus on the 
protection of wetland and riparian habitats, which would benefit the 
Clear Lake hitch during its early life stages (CDFW 2014, p. 42). 
Lastly, the State Water Resources Control Board issued draft emergency 
information order regulations for the Clear Lake watershed in September 
2023. These regulations were adopted by the Water Resources Control 
Board on December 6, 2023. These regulations allow the Water Resources 
Control Board to gather information on water usage, particularly 
groundwater pumping, in the Clear Lake watershed and learn how, if at 
all, it influences surface tributary flow (State Water Resource Control 
Board 2023, entire).
    Lastly, the CDFW has begun to address some of the fish passage 
barriers in the Clear Lake hitch's spawning tributaries by installing 
fish ladders. The reconstruction of one project included installation 
of holding pools for the fish to rest as they move upstream and breaks 
in the ladder to help slow the rate of water flow (Ewing 2017c, 
entire).
Cumulative Effects
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the subspecies. To assess the current and future condition 
of the subspecies, we evaluate the effects of all the relevant factors 
that may be influencing the

[[Page 4929]]

subspecies, including threats and conservation efforts. Because the SSA 
framework considers not just the presence of the factors, but to what 
degree they collectively influence risk to the entire subspecies, our 
assessment integrates the cumulative effects of the factors and 
replaces a standalone cumulative-effects analysis.
Current Condition
    In order to evaluate the current condition of the Clear Lake hitch, 
we describe the resiliency of each population along with the redundancy 
and representation of the subspecies. We considered demographic factors 
and habitat elements to evaluate the population-level resiliency. We 
divided the population in Clear Lake to ensure a more focused analysis 
regarding how different areas of the lake contribute to the subspecies' 
survival.
    We established that there are two separate populations of Clear 
Lake hitch within the Clear Lake watershed: one is found in Clear Lake 
and its associated tributaries and small lakes (i.e., Blue Lakes and 
Tule Lake), and the other is in Thurston Lake and its associated 
tributary. Because Thurston Lake is not currently hydrologically 
connected to Clear Lake and possibly never was, we do not anticipate it 
to be connected in the future. The Clear Lake and Thurston Lake 
populations were further delineated into units to capture the aquatic 
habitat features at a local, sub-watershed level. We then grouped some 
of the smaller delineated units into five ``analysis units'' using 
otolith (calcium carbonate structure found in the inner ear of the 
Clear Lake hitch) strontium signatures that indicated natal origins can 
be assigned to one of five strontium isotope groups (SIGs) throughout 
the watershed (Feyrer et al. 2019a, entire). The use of adult otoliths 
for the natal habitat strontium groupings indicates that those areas 
associated with the SIGs are contributing to reproduction and 
recruitment. The terms ``analysis unit'' and ``SIG'' may be used 
interchangeably for this analysis.
    We delineated six analysis units across the subspecies' range. 
Thurston Lake and Thurston Creek are described as a single analysis 
unit. The Clear Lake population includes five analysis units described 
according to the general location: Cole Creek; Kelsey Creek; Adobe 
Creek and Clear Lake; Rodman Slough; and Middle, Clover, and Siegler 
Canyon creeks (SIGs 1 through 5, respectively; Service 2024, p. 34). 
Additional description of the populations and analysis units can be 
found in the SSA report (Service 2024, pp. 26-28); see table 2, below, 
for a list of the AUs.
    In order to determine resiliency, we assessed the conditions at the 
population and analysis unit levels. We used demographic and habitat 
factors associated with each population. The demographic factors 
include reproduction, recruitment, and survival at both the adult and 
juvenile life stages. The habitat factors we used include water 
quantity (tributaries) and quality (lake) and wetland/tule habitat 
condition.
    Influencing those factors is the quality and accessibility of Clear 
Lake hitch habitat, which determines how well the spawning areas allow 
for successful reproduction, whether the nearshore nursery areas allow 
for young-of-year survival and subsequent recruitment, and whether 
individuals can move between tributary spawning habitats and the lake. 
Within the tributaries, water quantity and quality are important 
factors influencing survival at all life stages, reproductive success, 
and recruitment, and water quantity and quality are important for 
connectivity between the tributaries and lakes. Environmental 
stochastic events that have the potential to affect the subspecies 
include severe storms, drought, contaminant exposure, and the 
modification of habitat via natural (i.e., fire, drought, etc.) and 
anthropogenic (i.e., conversion to agriculture, vegetation management) 
means. Additional information regarding the resiliency factors can be 
found in the SSA report (Service 2024, pp. 28-34).
    We describe the population and analysis unit resiliency conditions 
using categories of high, medium, and low (with transitional stages). 
The methodology for determining the condition category includes 
assessment of the demographic and habitat factors within each analysis 
unit and within each population (Service 2024, p. 79). An overall high 
condition for a population is an indicator of high probability of 
population persistence. Populations in high condition have: accessible 
tributaries available throughout the spawning season, different natal 
habitats available for reproduction, individuals that are reproducing 
successfully and populations that are actively recruiting, and a 
sufficient amount and quality of spawning and rearing habitat to allow 
for varying population densities. An overall moderate condition is an 
indicator that probability of persistence for that population may be 
compromised by the lack and/or degradation of one or more of the 
subspecies' needs, and a low overall condition indicates low 
probability of population persistence due to the lack and/or 
degradation of multiple of the subspecies' needs. An extirpated 
condition indicates no probability of population persistence due to 
lack and/or degradation of all of the subspecies' needs. Conditions of 
low/extirpated, moderate/low, and high/moderate are transitionary 
between each of the qualitative categories.
    In order to determine the current population estimates and 
distribution, we used recent data (2015-2023) from surveys conducted on 
spawning in the tributaries, along the lake shore, and throughout Clear 
Lake. That data also informed the resiliency analysis for each 
population and analysis unit. The demographic and habitat parameters 
used in the resiliency analysis for each population and analysis unit 
is provided in table 1, below (Service 2024, p. 67).

 Table 1--Demographic and Habitat Factors Condition Categories for Population and Analysis Unit Resiliency With
                      High Condition as the Best Condition and Zero as the Lowest Condition
----------------------------------------------------------------------------------------------------------------
                                     Demographic         Demographic       Habitat element--   Habitat element--
      Condition  category             factor--            factor--          tributary water        lake water
                                    reproduction         recruitment           quantity             quality
----------------------------------------------------------------------------------------------------------------
High...........................  Overall total from  Overall total from  Water is retained     Lake water is
                                  reproduction        recruitment         within the            well oxygenated
                                  analysis is high.   analysis is high.   tributaries           and minimally
                                                                          throughout the        contaminated.
                                                                          spawning season.

[[Page 4930]]

 
Moderate.......................  Overall total from  Overall total from  Water is retained     Lake water is
                                  reproduction        recruitment         within the            oxygenated most
                                  analysis is         analysis is         tributaries           of the time,
                                  moderate.           moderate.           throughout a large    hypoxic
                                                                          portion of the        conditions do
                                                                          spawning season.      occur
                                                                                                periodically.
                                                                                                Some
                                                                                                contaminants are
                                                                                                present, but not
                                                                                                at lethal
                                                                                                levels.
Low............................  Overall total from  Overall total from  Water is retained     Lake water is not
                                  reproduction        recruitment         within the            well oxygenated
                                  analysis is low.    analysis is low.    tributaries           and hypoxic
                                                                          throughout a small    conditions occur
                                                                          portion of the        frequently.
                                                                          spawning season.      Contaminants are
                                                                                                present,
                                                                                                sometimes at
                                                                                                lethal levels.
0 (Zero).......................  No reproduction...  No recruitment....  Water is not          Lake water
                                                                          retained within the   quality is
                                                                          tributaries during    uninhabitable.
                                                                          any portion of the
                                                                          spawning season.
----------------------------------------------------------------------------------------------------------------

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

     Table 2--Summary Table of Current and Future Resiliency for Each Population (P) and Analysis Unit (AU)
----------------------------------------------------------------------------------------------------------------
                                                                           Future condition    Future condition
           Population                Analysis unit     Current condition      scenario 1          scenario 2
----------------------------------------------------------------------------------------------------------------
Clear Lake......................  ..................  Moderate..........  Moderate/Low......  Low.
                                  Cole Creek (SIG 1)  Low...............  Low...............  Low.
                                  Kelsey Creek (SIG   Moderate..........  Moderate/Low......  Low.
                                   2).
                                  Clear Lake, Adobe   Moderate..........  Moderate/Low......  Low.
                                   Creek (SIG 3).
                                 -------------------------------------------------------------------------------
                                  Rodman Slough (SIG  Moderate..........  Moderate..........  Moderate/Low.
                                   4).
                                  Middle Creek,       Low...............  Low...............  Low.
                                   Clover Creek,
                                   Seigler Canyon
                                   Creek (SIG 5).
Thurston Lake...................  Thurston Lake.....  High..............  Moderate..........  Moderate.
----------------------------------------------------------------------------------------------------------------

    In describing the overall current condition, we not only include 
resiliency of each population and analysis unit, but also consider the 
representation and redundancy across the range of the subspecies. 
Because both populations of the Clear Lake hitch are narrowly 
distributed and occupy the same ecological niche, the subspecies has 
likely never had much environmental diversity and likely does not have 
much genetic diversity due to its endemism to a single watershed, 
suggesting inherently limited representation. Given the subspecies' 
narrow range, both populations of the subspecies (Clear Lake and 
Thurston Lake) could be affected simultaneously by large-scale events. 
However, the Clear Lake hitch uses different types of spawning habitats 
(tributary, lake, or interface between the two) across its narrow 
range, which may provide some current capacity to withstand a 
catastrophic drought event.
    Because of the historical connectivity within a single, large 
watershed, Clear Lake provided better habitat conditions for the 
subspecies. Currently, Thurston Lake does not have the level of threats 
acting on the subspecies that are affecting the hitch in Clear Lake. 
Surveys in 2023 of the Clear Lake population show there is an influx of 
age classes, thus indicating there is reproduction occurring. This 
diverse demographic make- up of the subspecies' population in Clear 
Lake indicates that there is redundancy across subspecies' range and 
bolsters the subspecies' resiliency. Currently, the Clear Lake hitch 
has two extant populations: the Clear Lake population, which has a 
moderate resiliency; and the Thurston Lake population, which has a high 
resiliency. Both of these populations are able to withstand stochastic 
environmental variation. Representation and redundancy are similar to 
historical conditions, with both populations narrowly distributed and 
occupying the same ecological niche.
    The current resiliency analysis uses the best available 
information; however, we recognize there are some uncertainties around 
the subspecies' life

[[Page 4931]]

history, including recruitment, and the factors that influence its 
viability. Some of the uncertainties include the lack of robust, 
statistically valid population or abundance estimates for the 
historical population of the Clear Lake hitch. Further, current 
population estimates are still in initial stages, as local Tribes, 
CDFW, and USGS are accruing more data to provide a more accurate 
rangewide population estimate. Because this information is not 
available, there is no baseline to compare for our current condition 
analysis; therefore, we had to use available demographic and habitat 
data to inform our analysis, which could result in an overestimation or 
underestimation of population resiliency.
    There is some uncertainty in how successful recruitment is in the 
lower Clear Lake watershed, including within Clear Lake itself. Our 
analysis in the SSA report assumes reproduction is successful when 
adults are documented in the tributaries over the spawning season and 
that some lake spawning is successful (Service 2024, p. 70). It is 
possible these assumptions are overestimating how successful 
reproduction is, resulting in an overestimation of population 
resiliency.
Future Condition
    In order to determine the Clear Lake hitch's viability in the 
future, we assessed the condition of the subspecies' resiliency, 
redundancy, and representation within a timeframe that we can make 
reliable predictions about the threats and the subspecies' response to 
the threats. The future conditions projections were timeframe we 
applied for the future conditions' analyses found that the most 
reliable timeframe extends out to the next 40 to 50 years. We 
considered two plausible future scenarios that represent the extremes 
of a range of future changes in environmental conditions and success of 
implemented conservation efforts. Using these two scenarios allows us 
to consider the full range of future possibilities for forecasting 
future viability of the subspecies and incorporates any uncertainty 
regarding the impact of future environmental conditions and the success 
of implemented conservation efforts.
    The future scenarios project the influences on viability into the 
future and consider how those influences would potentially impact the 
Clear Lake hitch's viability. As under Current Condition, we assessed 
the subspecies' resiliency, redundancy, and representation under each 
future scenario. For resiliency, we projected the impact to the 
subspecies' reproduction, recruitment, water quantity (tributary), and 
water quality (lake) at the population level and the analysis unit 
level.
    The following six factors affecting the Clear Lake hitch were 
included in both of the two plausible future scenarios:
    1. The loss of spawning habitat due to past watershed modifications 
that have blocked access to or altered the flow regime of tributaries. 
The lack of consistent tributary flow will continue due to the effects 
of past instream gravel mining, deforestation, and grazing practices; 
existing flood control project infrastructure; fire activity; and water 
utilization for agricultural and urban uses. Because the rate of urban 
development has slowed in the last decade, we do not anticipate a 
significant amount of urban growth into the future. The timeframe for 
the current Lake County General Plan is 20 years and only projects 
growth out to 2028; however, we still do not expect growth to increase 
much after 2028. Although the amount of agricultural development 
increased substantially leading up to the 21st century, over the last 
10 years or so the acreage of fruit, nut, field, seed, and vegetable 
crops in Lake County only slightly increased.
    Therefore, we do not anticipate a substantial increase in the 
amount of agricultural production into the future (Service 2024, pp. 
29, 34). Furthermore, future climate change is projected to further 
exacerbate the degradation and inaccessibility of tributaries by 
increasing the incidence of fire activity, flood events, and aridity. 
Various passage barriers, both physical barriers and lack of flow, will 
continue to persist in the watershed. And there are no there are no 
groundwater sustainability plans for low priority basins.
    2. The loss of wetland/tule habitat. The current remaining wetland/
tule habitat surrounding the lake will persist into the future, 
primarily due to the implementation of Lake County's Clear Lake 
Shoreline Ordinance.
    3. Continued reductions in lake water quality due to the past loss 
of wetland/tule habitat surrounding the lake, contamination from past 
mercury mining along the lake's shore and from pesticide use for 
agricultural and urban uses, the input of sediment and nutrients from 
degraded tributaries, and nutrient inputs from surrounding urban and 
agricultural development. As mentioned above, we do not project 
agricultural production or urban development to increase substantially 
into the future. Elevated nutrient and sediment inputs continue to 
contribute to periodic cyanobacteria blooms, further reducing water 
quality. Periodic fish kills continue to occur.
    4. Nonnative fish species from past introductions are still 
established within the lakes.
    5. Drought incidence and intensity increase due to climate change, 
reducing tributary flow during the spawning season in some years.
    6. The continued implementation of current regulatory mechanisms 
(e.g., CESA, Lake County's Clear Lake Shoreline Ordinance) and 
management actions (e.g., Lake County's Aggregate Resources Management 
Plan, other miscellaneous restoration actions occurring throughout the 
watershed).
    Scenario 1 assesses the viability of the subspecies if the trend 
and magnitude of threats were to continue at the current trajectory 
into the future with implemented management efforts being fully 
successful. Scenario 2 assesses the subspecies' future viability with 
an increase in the trend and magnitude of threats with implemented 
management efforts having mixed success. Additional details regarding 
the scenarios are described in the SSA report (Service 2024, pp. 89-
91).
    Under Scenario 1, many of the factors that are having an influence 
on each of the Clear Lake hitch populations continue at current rates, 
or slightly increase. The effects of climate change, specifically 
increased aridity, are already occurring throughout the watershed, 
although the effects of increased aridity are not apparent every year. 
Future drought conditions are projected to increase in both the number 
of years drought conditions persist and the intensity of drought. Due 
to the increased incidence of aridity, and because future climate 
projections show the timing of precipitation will change, in some 
years, the number of spawning tributaries available to the Clear Lake 
hitch over the spawning season will decrease. A slight increase in fire 
and flooding incidence will increase the amount of erosion occurring in 
the tributaries, further decreasing lake water quality. As conditions 
worsen in the tributaries, the hitch will have to increasingly rely on 
spawning in the lake or in the mouths of streams. Because the Clear 
Lake hitch is a State- listed species, direct take will continue to be 
prohibited without a permit. Due to Lake County's Clear Lake Shoreline 
Ordinance, the amount of existing wetland/tule habitats surrounding the 
lake will continue to persist. Under Scenario 1, the SGMA has been 
implemented, and general restoration projects, such as contaminant 
remediation, tributary function, and barrier removal, continue to be

[[Page 4932]]

implemented at a small scale throughout the watershed.
    Under Scenario 1, both populations decline in resiliency; the 
Thurston Lake population is in moderate condition, and the Clear Lake 
population is in moderate/low condition. Each Clear Lake analysis unit 
is either unchanged from current condition, or declines. The resiliency 
for SIGs 1 and 5 remains in low condition. SIG 4 remains in moderate 
condition, and SIGs 2 and 3 decline from moderate to moderate/low 
condition. For representation, because both populations of Clear Lake 
hitch are narrowly distributed and occupy the same ecological niche, 
environmental and genetic diversity are not expected to change 
dramatically under Scenario 1. Therefore, representation for the Clear 
Lake hitch under current conditions is maintained under Scenario 1.
    For redundancy, given the narrow range, both populations of the 
subspecies could be affected simultaneously by large-scale events. 
However, the Clear Lake hitch uses different types of spawning habitats 
(tributary, lake, or interface between the two) across its narrow 
range, which may increase the ability of the subspecies to withstand a 
catastrophic drought event, which is not expected to change 
dramatically under Scenario 1. Therefore, redundancy for the Clear Lake 
hitch under current conditions is maintained under Scenario 1.
    Under Scenario 2, some of the factors that are having an influence 
on each of the Clear Lake hitch populations continue at current rates, 
while others will increase (Service 2024, pp. 92-94). In this scenario, 
climate change results in more arid conditions throughout the 
subspecies' range and impacts from increased fire and flooding increase 
erosion occurring in the tributaries, further decreasing water quality 
within the lake. As conditions worsen in the tributaries, the Clear 
Lake hitch will have to increasingly rely on spawning in the lake or in 
the mouths of streams. In addition, under this scenario, agricultural 
production slightly increases in areas currently not prioritized by the 
SGMA, small-scale restoration projects have been implemented but not 
all are successful, the Middle Creek Project has not been implemented, 
and few passage barriers have been removed. Under Scenario 2, Lake 
County's Clear Lake Shoreline Ordinance will continue to limit tule 
habitat loss, and the CESA will continue to limit the take of Clear 
Lake hitch individuals.
    The overall resiliency of each population will decline under 
Scenario 2. The projections result in a moderate condition for the 
Thurston Lake population and low condition for the Clear Lake 
population. Within Clear Lake, each SIG declines to or maintains a low 
condition except for Rodman Slough, which has a moderate/low condition.
    Under Scenario 2, due to declines in abundance and recruitment 
predicted under this future scenario, we anticipate representation will 
be somewhat reduced from current conditions, and, therefore, the 
subspecies will be less able to adapt to changing environmental 
conditions. We also anticipate that redundancy will be somewhat reduced 
from current conditions due to predicted declines in abundance and 
recruitment, and, therefore, the subspecies will be more susceptible to 
a catastrophic event.
    We also present uncertainties associated with the future conditions 
analyses for the Clear Lake hitch. As described above under Current 
Condition, there is uncertainty regarding some of the subspecies' life-
history traits, including recruitment, and some of the factors 
influencing the subspecies' viability that were used in the future 
condition scenarios. Although there is a current population estimate 
for the subspecies, this estimate is in its initial stages and 
additional years of monitoring data are needed to provide a more 
accurate estimate. Because we do not have an accurate current number to 
compare to, and therefore cannot project changes in the size of either 
population, we must qualitatively describe how future influences will 
impact Clear Lake hitch populations. There is uncertainty in how 
successful recruitment is in the lower Clear Lake watershed, including 
within Clear Lake itself. Our analysis assumes reproduction is 
successful when adults are documented in the tributaries over the 
spawning season and that some lake spawning is successful. It is 
possible these assumptions are overestimating how successful 
reproduction is, resulting in an overestimation of population 
resiliency.
    Lastly, there is uncertainty around the degree of impact from water 
extraction for agricultural use on the Clear Lake hitch and its 
habitat. Groundwater pumping can deplete surface water in streams and 
reduce flow and available water (USGS 2013, entire). Water extractions 
may be one of the reasons for the reduction in the Clear Lake hitch's 
population; however, the Clear Lake watershed is complex, and we do not 
fully understand how surface and ground water interact in most of the 
watershed because studies have not been completed. We also do not have 
a full understanding of where water extractions are occurring or how 
much water is being extracted; however, there are ongoing studies to 
better understand the magnitude of impacts on the Clear Lake watershed 
(Santana 2024, pers. comm.). Although we do not fully understand if or 
how groundwater extraction is having an impact on the Clear Lake hitch, 
we do know that water extraction in the summer lowers the water level 
in pool habitat that acts as refugia for native fish in the 
disconnected streams until they become reconnected by spring rains. It 
is the loss of this pool habitat that affects the Clear Lake hitch. 
However, because groundwater extraction is likely affecting water 
availability for the subspecies, for our analysis, it is a logical 
assumption that groundwater pumping for agricultural production is 
likely having a negative impact on the subspecies. We also assumed the 
highest rates of pumping are occurring where the most agricultural 
production occurs. Therefore, it is possible we are overestimating the 
impact from this threat, resulting in an underestimate of current 
population resiliency.
    Additional uncertainty is presented regarding future impacts to the 
subspecies and its habitat from climate change, the future trajectory 
of current negative influences to the subspecies (i.e., agricultural 
production and urban development), the long-term success of current 
conservation actions, and the implementation and success of future 
conservation actions. Our overall future condition analysis assumes 
climate change will exacerbate the current negative influences (e.g., 
drought) acting on the subspecies; both future scenarios capture the 
full risk of this influence within the 40-to-50-year timeline. For 
agricultural production and urban development, we assume future trends 
will be similar to trends over the last decade, which only showed 
slight increases. It is possible we underestimated the future 
trajectory of these influences, which would result in an overestimation 
of future population resiliency. The number of conservation actions 
being implemented in the watershed has increased over the past few 
years; however, we are uncertain about their success over the long term 
and whether the current trend in implementation will continue into the 
future. Since the two future condition scenarios consider the breadth 
of future implementation and success of conservation activities for the 
Clear Lake hitch, the overall future condition analysis captures the 
full benefits of this influence on the subspecies.

[[Page 4933]]

Determination of the Clear Lake Hitch's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.
    The Act requires that we determine whether a species meets the 
definition of an endangered species or a threatened species because of 
any of the following factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
Status Throughout All of Its Range
    After evaluating the threats to the Clear Lake hitch and assessing 
the cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we have determined that the overall viability of the Clear 
Lake hitch has declined from historical levels due to the past and 
ongoing threats of habitat loss, degradation, and modifications (Factor 
A), predation (Factor C), competition (Factor E), and the effects of 
climate change (Factor E) .
    Currently, the subspecies has two extant populations: the Clear 
Lake population, which has a moderate resiliency, and the Thurston Lake 
population, which has a high resiliency. Both populations are able to 
withstand stochastic environmental variation. Representation and 
redundancy are similar to historical conditions, with both populations 
narrowly distributed and occupying the same ecological niche. Because 
of the historical connectivity within a single, large watershed, Clear 
Lake provided better habitat conditions for the subspecies. Currently, 
Thurston Lake does not have the level of threats acting on the 
subspecies that are affecting the hitch in Clear Lake. Surveys in 2023 
of the Clear Lake population show there is an influx of age classes, 
thus indicating there is reproduction occurring. The diverse 
demographic makeup of the subspecies' population in Clear Lake provides 
support that there is redundancy across the Clear Lake hitch's range 
and bolsters the subspecies' resiliency. Therefore, the Clear Lake 
hitch is not currently at risk of extinction throughout its range and 
does not meet the Act's definition of an endangered species.
    However, under both future scenarios we see declines in population 
resiliency in the foreseeable future as a result of factors that will 
continue to affect the subspecies. Our analysis of the past, current, 
and future factors influencing viability revealed there are six primary 
factors affecting the viability of the Clear Lake hitch. These risks to 
viability are primarily related to habitat changes but also includes 
others with more direct effect to the subspecies:
    1. The loss of spawning habitat due to past watershed modifications 
that have blocked access to or altered the flow regime of tributary 
streams.
    2. The loss of wetland/tule habitat. The current remaining wetland/
tule habitat surrounding the lake will persist into the future, 
primarily due to the implementation of Lake County's Clear Lake 
Shoreline Ordinance.
    3. Continued reductions in lake water quality due to the past loss 
of wetland/tule habitat surrounding the lake, contamination from past 
mercury mining along the lake's shore and from pesticide use for 
agricultural and urban uses, the input of sediment and nutrients from 
degraded tributaries, and nutrient inputs from surrounding urban and 
agricultural development. As mentioned above, we do not project 
agricultural production or urban development to increase substantially 
into the future. Elevated nutrient and sediment inputs continue to 
contribute to periodic cyanobacteria blooms, further reducing water 
quality. Periodic fish kills continue to occur.
    4. Nonnative fish species from past introductions are still 
established within Clear Lake.
    5. Drought incidence and intensity increase due to climate change, 
reducing tributary flow during the spawning season in some years 
(Hayhoe et al. 2004, pp. 12424-12425, Pierce et al. 2013, pp. 848-850).
    6. The continued implementation of current regulatory mechanisms 
(e.g., CESA, Lake County's Clear Lake Shoreline Ordinance), management 
actions (e.g., Lake County's Aggregate Resources Management Plan, and 
other miscellaneous restoration actions occurring throughout the 
watershed) that limits the amount of gravel extract.
    Under both future scenarios, Thurston Lake declines to a moderate 
resiliency and Clear Lake declines to a moderate/low or low resiliency, 
suggesting the subspecies will be less likely to withstand stochastic 
environmental variation in the future. Under future Scenario 1, 
redundancy and representation are mostly maintained but begin to be 
impacted by the declines in population resiliency. Under future 
Scenario 2, both redundancy and representation are reduced due to the 
limited availability of some spawning habitats and the subspecies being 
less able to adapt to changing environmental conditions. Because of 
this future reduction in resiliency, redundancy, and representation, 
the subspecies is likely to become endangered within the foreseeable 
future throughout its range and meets the Act's definition of a 
threatened species. Thus, after assessing the best scientific and 
commercial data available, we conclude that the Clear Lake hitch is not 
in danger of extinction but is likely to become in danger of extinction 
within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. The court in Center for Biological Diversity v. Everson, 
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of 
the Final Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final 
Policy''; 79 FR 37578, July 1, 2014) that provided if the Services 
determine that a species is threatened throughout all of its range, the 
Services will not analyze whether the species is endangered in a 
significant portion of its range.
    Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
the Clear Lake hitch is in danger of extinction in a significant 
portion of its

[[Page 4934]]

range. In undertaking this analysis for the Clear Like hitch, we chose 
to address the significance question first. We identified Clear Lake 
and its tributaries as a significant portion of the subspecies' range; 
this portion is biologically meaningful to the subspecies due to its 
large geographical size (i.e., it encompasses the greatest proportion 
of the subspecies' entire range and near 95 percent of the available 
lake habitat). Additionally, Clear Lake and its tributaries support the 
majority of the subspecies' entire population. We include the 
tributaries in this portion because the Clear Lake hitch uses them for 
spawning, and they are important for the reproduction aspect of the 
subspecies' lifecycle.
    After determining the portion's significance, we evaluated the 
Clear Lake hitch's status within that portion. Since we found the 
subspecies meets the Act's definition of threatened across its entire 
range, we considered the status of the portion to determine if the 
subspecies within Clear Lake and its tributaries meets the Act's 
definition of an endangered species. The current resiliency of this 
population is scored as moderate (see table 2, above). Seasonal surveys 
conducted in Clear Lake from 2017 to 2023 indicate fluctuations in the 
populations; the 2023 surveys yielded the highest number (304) of 
individual hitch captured. The increase could possibly be due to more 
water available from a rainy year. The 2023 surveys also show there is 
an influx of age classes, thus indicating there is reproduction 
occurring across a range of years and climatic conditions. This diverse 
demographic makeup of the subspecies' population in Clear Lake provides 
support that there is currently redundancy within the portion and 
bolsters the subspecies' resiliency. Representation and redundancy in 
this portion are similar to historical conditions, with the population 
narrowly distributed and occupying the same ecological niche. The 
current resiliency is moderate for this portion, and this portion 
retains sufficient resiliency such that it will be able to withstand 
stochastic environmental variation in the near term. Therefore, the 
subspecies is not in danger of extinction within this portion of its 
range.
    Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy, including the definition of ``significant'' that those court 
decisions held to be invalid.
Determination of Status
    Based on the best scientific and commercial data available, we 
determine that the Clear Lake hitch meets the Act's definition of a 
threatened species throughout its range. Therefore, we propose to list 
the Clear Lake hitch as a threatened species in accordance with 
sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, foreign 
governments, private organizations, and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species. The protection required 
by Federal agencies, including the Service, and the prohibitions 
against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self- sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Sacramento Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If the Clear Lake hitch is listed, funding for recovery actions 
will be available from a variety of sources, including Federal budgets, 
State programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of California would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Clear Lake hitch. Information on our 
grant programs that are available to aid species recovery can be found 
at: https://www.fws.gov/service/financial-assistance.
    Although the Clear Lake hitch is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery

[[Page 4935]]

efforts for this subspecies. Additionally, we invite you to submit any 
new information on this subspecies whenever it becomes available and 
any information you may have for recovery planning purposes (see FOR 
FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled, ``Interagency Cooperation,'' and it 
mandates all Federal action agencies to use their existing authorities 
to further the conservation purposes of the Act and to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify critical habitat. Regulations 
implementing section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action that is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2) of the 
Act.
    Examples of discretionary actions for the Clear Lake hitch that may 
be subject to conference and consultation procedures under section 7 of 
the Act are management of Federal lands administered by BLM and USFS, 
as well as actions that require a Federal permit (such as a permit from 
USACE under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) 
or actions funded by Federal agencies such as the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency. Federal actions not affecting listed 
species or critical habitat--and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or carried out 
by a Federal agency--do not require section 7 consultation. Federal 
agencies should coordinate with the Sacramento Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on 
section 7 consultation and conference requirements.
    Section 9 of the Act provides a specific list of prohibitions for 
endangered species but does not provide these same prohibitions for 
threatened species. Instead, pursuant to section 4(d) of the Act, for 
any species listed as a threatened species, the Secretary must issue 
protective regulations that are ``necessary and advisable to provide 
for the conservation of such species'' (these are referred to as ``4(d) 
rules). Additional measures for the Clear Lake hitch are described 
below (see Protective Regulations Under Section 4(d) of the Act, 
below).
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits for threatened wildlife are codified at 50 CFR 17.32, 
and general Service permitting regulations are codified at 50 CFR part 
13. With regard to threatened wildlife, a permit may be issued: for 
scientific purposes, for enhancing the propagation or survival of the 
species, or for take incidental to otherwise lawful activities. The 
statute also contains certain exemptions from the prohibitions, which 
are found in sections 9 and 10 of the Act.

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

Background

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

[[Page 4936]]

threatened species: (1) we can issue a species-specific 4(d) rule (at 
50 CFR 17.40-17.47 or 17.73-17.74), which would contain all of the 
protective regulations for that species; or (2) we can apply a 
``blanket rule'' (for more information, see 89 FR 23919, April 5, 
2024), which extends to threatened species without a species-specific 
rule all of the prohibitions that apply to endangered species under 
section 9 (with certain exceptions applicable to threatened species).
    Both ``blanket rules'' and species-specific 4(d) rules explain what 
is prohibited for a threatened species, thus making the activity 
unlawful without a permit or authorization under the Act for the 
prohibited activity unless otherwise excepted in the 4(d) rule 
(species-specific 4(d) rules may also include affirmative 
requirements). Section 4(d) rules are therefore directly related to 
what actions may require permits in the future. As discussed in 
Available Conservation Measures, permits may be issued for purposes 
described in our threatened species permitting regulations at 50 CFR 
17.32 and 17.72, including for recovery actions, conservation benefit 
agreements (previously referred to as candidate conservation agreements 
with assurances and safe harbor agreements), or habitat conservation 
plans. We may also except otherwise prohibited activities through a 
4(d) rule itself, in which case threatened species permits would not be 
required for those activities. For example, there are two categories of 
exceptions that we frequently include in 4(d) rules, and these are for 
otherwise prohibited acts or forms or amounts of ``take'' that are: (1) 
unavoidable while conducting beneficial actions for the species, or (2) 
considered inconsequential (de minimis) to the conservation of the 
species. For otherwise prohibited take activities that require section 
10 permits, programmatic approaches--such as general conservation plans 
and template habitat conservation plans--may be available as another 
way for project proponents to comply with take prohibitions or 
requirements applicable to one or more species while reducing the time 
that would otherwise be associated with developing individual permit 
applications. In addition, the Service and project proponents can 
reduce the need for such permits by developing standardized 
conservation measures that avoid the risk of ``take.''
    The provisions of the Clear Lake hitch's proposed protective 
regulations under section 4(d) of the Act are one of many tools that we 
would use to promote the conservation of the Clear Lake hitch. The 
proposed protective regulations would apply only if and when we make 
final the listing of the Clear Lake hitch as a threatened species. 
Nothing in 4(d) rules change in any way the recovery planning 
provisions of section 4(f) of the Act or the consultation requirements 
under section 7 of the Act. As mentioned previously in Available 
Conservation Measures, section 7(a)(2) of the Act requires Federal 
agencies, including the Service, to ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of any endangered species or threatened species or result in 
the destruction or adverse modification of designated critical habitat 
of such species. In addition, even before the listing of any species or 
the designation of its critical habitat is finalized, section 7(a)(4) 
of the Act requires Federal agencies to confer with the Service on any 
agency action which is likely to jeopardize the continued existence of 
any species proposed to be listed under the Act or result in the 
destruction or adverse modification of critical habitat proposed to be 
designated for such species. These requirements are the same for a 
threatened species regardless of what is included in its 4(d) rule.
    Whether a threatened species is protected through a ``blanket 
rule'' or a species- specific 4(d) rule, protective regulations do not 
alter section 7 obligations, including the criteria for informal or 
formal consultations or the analytical process used for biological 
opinions or concurrence letters. Section 7 consultation is required for 
Federal actions that ``may affect'' a listed species regardless of 
whether take caused by the activity is prohibited or excepted by a 4(d) 
rule (the ``blanket rule'' or a species-specific 4(d) rule.
    For example, as with an endangered species, if a Federal agency 
determines that an action is ``not likely to adversely affect'' a 
threatened species, this will require the Service's written concurrence 
(50 CFR 402.13(c)). Similarly, if a Federal agency determinates that an 
action is ``likely to adversely affect'' a threatened species, the 
action will require formal consultation with the Service and the 
formulation of a biological opinion (50 CFR 402.14(a)). Because 
consultation obligations and processes are unaffected by 4(d) rules, we 
may consider developing tools to streamline future intra-Service and 
interagency consultations for actions that result in forms of take that 
are not prohibited by the 4(d) rule (but that still require 
consultation). These tools may include consultation guidance; 
streamlined, online consultation processes via the Service's digital 
project planning tool (Information for Planning and Consultation; 
https://ipac.ecosphere.fws.gov/); template language for biological 
opinions; or programmatic consultations.

Provisions of the Proposed 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the Clear 
Lake hitch's conservation needs. As discussed above under Summary of 
Biological Status and Threats, we have concluded that the Clear Lake 
hitch is likely to become in danger of extinction within the 
foreseeable future primarily due to habitat loss, degradation, and 
modification; nonnative species' predation; competition; and the 
effects of climate change. Section 4(d) requires the Secretary to issue 
such regulations as she deems necessary and advisable to provide for 
the conservation of each threatened species and authorizes the 
Secretary to include among those protective regulations any of the 
prohibitions that section 9(a)(1) of the Act prescribes for endangered 
species. We are not required to make a ``necessary and advisable'' 
determination when we apply or do not apply specific section 9 
prohibitions to a threatened species (In re: Polar Bear Endangered 
Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 
(D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v. 
Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 
687 (1995))). Nevertheless, even though we are not required to make 
such a determination, we have chosen to be as transparent as possible 
and explain below why we find that, if finalized, the protections, 
prohibitions, and exceptions in this proposed rule as a whole satisfy 
the requirement in section 4(d) of the Act to issue regulations deemed 
necessary and advisable to provide for the conservation of the Clear 
Lake hitch.
    The protective regulations we are proposing for the Clear Lake 
hitch incorporate prohibitions from the Act's section 9(a)(1) to 
address the threats to the subspecies. The prohibitions of section 
9(a)(1) of the Act, and implementing regulations codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit, or to cause to be committed any of the following acts with 
regard to any endangered wildlife: (1) import into, or export from, the 
United States; (2) take (which

[[Page 4937]]

includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or to attempt to engage in any such conduct) within the 
United States, within the territorial sea of the United States, or on 
the high seas; (3) possess, sell, deliver, carry, transport, or ship, 
by any means whatsoever, any such wildlife that has been taken 
illegally; (4) deliver, receive, carry, transport, or ship in 
interstate or foreign commerce, by any means whatsoever and in the 
course of commercial activity; or (5) sell or offer for sale in 
interstate or foreign commerce. This protective regulation includes all 
of these prohibitions because the Clear Lake hitch is at risk of 
extinction within the foreseeable future and putting these prohibitions 
in place would help prevent further declines in the subspecies, 
preserve the species remaining populations, and decrease synergistic, 
negative effects from other ongoing or future threats.
    In particular, this proposed 4(d) rule would provide for the 
conservation of the Clear Lake hitch by prohibiting the following 
activities, unless they fall within specific exceptions or are 
otherwise authorized or permitted: importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, carrying, transporting, or shipping in interstate or foreign 
commerce in the course of commercial activity; or selling or offering 
for sale in interstate or foreign commerce. Under the Act, ``take'' 
means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or to attempt to engage in any such conduct. Some of these 
provisions have been further defined in regulations at 50 CFR 17.3. 
Take can result knowingly or otherwise, by direct and indirect impacts, 
intentionally or incidentally. Regulating take would help to sustain 
water quality and water flow within the tributaries and improve 
reproductive success, prevent further declines preserve or improve the 
resiliency of the remaining populations, and decrease synergistic, 
negative effects from other ongoing or future threats. Therefore, we 
propose to prohibit take of the Clear Lake hitch, except for take 
resulting from those actions and activities specifically excepted by 
the 4(d) rule.
    Exceptions to the prohibition on take would include all of the 
general exceptions to the prohibition on take of endangered wildlife, 
as set forth in 50 CFR 17.21, and additional exceptions, as described 
below.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
issued for the following purposes: for scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act (50 CFR 
17.32). The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    In addition, to further the conservation of the species, any 
employee or agent of the Service, any other Federal land management 
agency, the National Marine Fisheries Service, a State conservation 
agency, or a federally recognized Tribe, who is designated by their 
agency or Tribe for such purposes, may, when acting in the course of 
their official duties, take threatened wildlife without a permit if 
such action is necessary to: (i) Aid a sick, injured, or orphaned 
specimen; (ii) dispose of a dead specimen; (iii) salvage a dead 
specimen that may be useful for scientific study; or (iv) remove 
specimens that constitute a demonstrable but nonimmediate threat to 
human safety, provided that the taking is done in a humane manner; the 
taking may involve killing or injuring only if it has not been 
reasonably possible to eliminate such threat by live capturing and 
releasing the specimen unharmed, in an appropriate area.
    We recognize the special and unique relationship that we have with 
our State natural resource agency partners in contributing to 
conservation of listed species. State agencies often possess scientific 
data and valuable expertise on the status and distribution of 
endangered, threatened, and candidate species of wildlife and plants. 
State agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would be able to conduct 
activities designed to conserve the Clear Lake hitch that may result in 
otherwise prohibited take without additional authorization.
    The proposed 4(d) rule would also provide for the conservation of 
the species by allowing exceptions that incentivize conservation 
actions or that, while they may have some minimal level of take of the 
Clear Lake hitch, are not expected to rise to the level that would have 
a negative impact (i.e., would have only de minimis impacts) on the 
subspecies' conservation. The proposed exceptions to these prohibitions 
include activities associated with the cleanup of illegal cannabis 
cultivation sites in the Clear Lake watershed, Tribal collection, fish 
rescues, fuels and fire management activities, habitat management and 
restoration, and nonnative fish species removal (described below) that 
are expected to have negligible impacts to the Clear Lake hitch and its 
habitat.
Cleanup of Illegal Cannabis Cultivation Sites
    Illegal cannabis cultivation in California has been an ongoing 
problem, and illegal grows are known to occur in Lake County within the 
Clear Lake hitch's range (Lake County News 2023, entire; California 
Statewide Law Enforcement Association 2020, entire). Although species-
specific studies on the impact that illegal cannabis grows have on the 
Clear Lake hitch are not currently available, these illegal cannabis 
sites are known to impact fish and their habitats, not only during 
active operation but also when sites are left abandoned. As described 
above in the Threats section, many pesticides can be highly toxic and 
used illegally at cannabis grow sites. Fertilizers are also used at 
these sites. Growers can add these chemicals to their irrigation 
systems, causing the chemicals to seep into the surrounding soil and 
waterways (California Department of Pesticide Regulation 2021, p. 2; 
USDA 2023, entire). Fertilizers affect the water quality and may 
increase cyanobacteria blooms and fish kills (Baker 2018, p. 6).Water 
diversions associated with illegal cannabis cultivation sites, block 
fish passage, change flow regimes, and cause other secondary effects 
(Baker 2018, p. 6).
    Cleanup efforts to address chemical contamination and water 
diversion structures from these illegal grow sites will help protect 
the surrounding ecosystem and discourage other growers from returning 
to the same sites (USDA 2023, entire). During cleanup efforts, some 
localized, short-term disturbances to Clear Lake hitch habitat may 
occur if activities occur within or adjacent to

[[Page 4938]]

that habitat. Implementation of these cleanup activities will not 
appreciably reduce the likelihood of survival and recovery of the Clear 
Lake hitch and will result in a long-term benefit to the subspecies and 
surrounding ecosystem. Therefore, we propose to except take incidental 
to otherwise lawful activities that remove toxicants, other chemicals, 
and related water diversion infrastructure from illegal cannabis 
cultivation sites in the Clear Lake watershed.
Tribal Collection
    The Clear Lake area is one of the earliest known sites to be 
occupied by Native Americans, approximately 10,000 years ago (Richerson 
et al. 2008, p. A259). For their subsistence, the local Pomo Tribes 
historically relied on the large spawning runs of hitch and other 
native migrating fish during the spring, drying and storing them to eat 
throughout the year. Tribes continued to harvest hitch until the mid-
1980s, when the spawning runs began to decline (Big Valley 
Environmental Protection Agency 2013 in CDFW 2014, p. 26). California 
State regulations allowed capture of Clear Lake hitch on tributaries by 
hand or dip-net until the subspecies was designated a candidate for 
State listing under the CESA (CDFW 2014, p. 26).
    In recognizing the Tribe's long-standing relationship to the 
subspecies, we propose to except take caused by collection of Clear 
Lake hitch by members of federally recognized Tribes for ceremonial use 
or traditional consumption if the collection is conducted pursuant to a 
Tribal conservation plan.
Fish Rescues
    Clear Lake hitch may become stranded during drought or at other 
times when there is low water availability. Due to their reliance on 
connectivity between tributaries and lakes for the reproductive cycle, 
a reduction of flow in the tributaries during the spawning season can 
completely eliminate or greatly reduce the likelihood for successful 
reproduction or recruitment or both. The effects of drought will affect 
the entire subspecies because of its inherently narrow range and will 
result in strandings. Several entities aid stranded Clear Lake hitch, 
including State, Federal, Tribal, local, and private individuals.
    Therefore, we propose to except take caused by rescue of individual 
Clear Lake hitch that are at risk of stranding and eventual death in 
drying or warming pools, and the subsequent transport and release into 
a flowing, connected tributary stream or into a larger waterbody (e.g., 
Clear Lake, Blue Lakes, Tule Lake).
Fuels and Fire Management Activities
    In certain areas, the use of fire and wildfire management such as 
prescribed burns, fuel reduction activities, and maintenance of fuel 
breaks (not including the use of heavy equipment such as bulldozers, 
backhoes, or tractors) may assist in protecting and maintaining land 
adjacent to the aquatic systems used by the Clear Lake hitch.
    Establishing and maintaining required minimum vegetation clearance 
from dwellings or structures to reduce wildland fire risks to human 
life and property may assist in protecting and maintaining habitat for 
the Clear Lake hitch by controlling erosion and improving water 
quality. This process includes activities necessary to maintain the 
minimum clearance (defensible space) requirement from any occupied 
dwelling or occupied structure, or to the property line, whichever is 
nearer, to provide reasonable fire safety and to reduce wildfire risks 
consistent with the State of California fire codes or local fire codes/
ordinances. Therefore, we propose to except take incidental to an 
otherwise lawful activity caused by fuels and fire management 
activities (such as prescribed fire) to reduce the risk or severity of 
catastrophic wildfire, and when such activities will be carried out in 
accordance with an established and recognized fuels or forest 
management plan that includes measures to minimize impacts to the Clear 
Lake hitch or aquatic habitats and will result in conservation benefits 
to the Clear Lake hitch.
Habitat Management and Restoration
    Clear Lake hitch individuals require connectivity to lakes and 
tributaries throughout their lives. Different life stages depend on 
different habitat types. Tributaries are used for spawning and 
successful reproduction. During the spawning season, most adults likely 
migrate into the connected tributaries; however, some reproductive 
adults may stay within the lake and spawn along the shore, the mouth of 
tributaries, or in backwater areas (e.g., Rodman Slough in Clear Lake). 
Outside of the spawning season, the Clear Lake hitch is primarily found 
in Clear Lake or Thurston Lake, but can also be found in Tule Lake, the 
Blue Lakes, and other permanent waterbodies such as reservoirs and 
ponds. Within the lacustrine habitats, the subspecies can be found in 
either the littoral zone (nearshore) as juveniles or the limnetic zone 
(sun-lit, offshore open water) as adults. During extreme drought 
conditions, the only successful reproduction may be within the lakes.
    Nonnative vegetative growth along the lake's shoreline can 
outcompete the growth of important native wetland plant species, such 
as tule. Nonnative plant species, such as Himalayan blackberry (Rubus 
armeniacus), growing along the tributaries can become so overgrown that 
they become passage barriers or they outcompete native species such as 
willows and cottonwoods. Removal and maintenance of excessive nonnative 
vegetation may assist the restoration of wetland and riparian habitats 
throughout the watershed so that these habitats can be used as breeding 
and rearing habitat for the Clear Lake hitch.
    Therefore, we propose to except take incidental to otherwise lawful 
activity caused by habitat management and restoration efforts that 
specifically provide for the habitat needs of the Clear Lake hitch and 
include measures that minimize impacts to the subspecies and its 
habitat. These efforts must be carried out in accordance with finalized 
conservation plans or strategies for the Clear Lake hitch that have the 
approval of appropriate State or Federal agencies. These activities 
will most likely have some limited short-term impacts but overall will 
provide for conservation of the subspecies.
Nonnative Fish Species Removal
    As noted earlier in this document, 25 different species of 
nonnative fish have been introduced into Clear Lake for recreational or 
biological control purposes, and although not all of them have become 
established, about 20 are still found in the lake today (Thompson et 
al. 2013, pp. 12-17). All of the piscivorous species in Clear Lake are 
potential predators of the Clear Lake hitch, and there have been 
accounts of the subspecies in the digestive tracts of both largemouth 
bass and channel catfish (Macedo 1994, p. 5; Moyle et al. 1995, pp. 
154-155; Moyle et al. 2014, p. 10). Anecdotal reports suggest the Clear 
Lake hitch may be a main prey-item for largemouth bass. Predation and 
competition from the nonnative species will continue to affect the 
Clear Lake hitch at the individual, population, and subspecies level 
into the future throughout its range, reducing survival, reproduction, 
and recruitment, which reduces resiliency by decreasing the size of the 
spawning and overall population.
    Nonnative species removal will significantly increase the viability 
of the Clear Lake hitch. Actions with the primary or secondary purpose 
of removing nonnative fish species that

[[Page 4939]]

compete with, predate upon, or degrade the habitat of the Clear Lake 
hitch are beneficial to the Clear Lake hitch. Therefore, we propose to 
exempt take incidental to otherwise lawful activity caused by removal 
or eradication of nonnative fish species. This exception does not 
include actions that disturb habitat or involve the use of chemicals.

III. Critical Habitat

Background

    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate a species' critical habitat 
concurrently with listing the species. Critical habitat is defined in 
section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of designated critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation also does not allow the government or public to access 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific data available. Further, 
our Policy on Information Standards Under the Endangered Species Act 
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information compiled in the SSA report and information developed during 
the listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge. Habitat is dynamic, and 
species may move from one area to another over time.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be needed for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may

[[Page 4940]]

still result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of the 
species. Similarly, critical habitat designations made on the basis of 
the best scientific data available at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of those planning 
efforts calls for a different outcome.

Critical Habitat Determinability

    Our regulations at 50 CFR 424.12(a)(2) state that critical habitat 
is not determinable when one or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    We reviewed the available information pertaining to the biological 
needs of the subspecies and habitat characteristics where this 
subspecies is located, but sufficient data to perform the required 
consideration of economic impacts are lacking at this time.
    Therefore, we conclude that the designation of critical habitat for 
the Clear Lake hitch is not determinable at this time. The Act allows 
the Service an additional year to publish a critical habitat 
designation that is not determinable at the time of listing (16 U.S.C. 
1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule
    We are required by E.O.s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).
Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994 
(Government- to-Government Relations with Native American Tribal 
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and 
Coordination with Indian Tribal Governments), the President's 
memorandum of November 30, 2022 (Uniform Standards for Tribal 
Consultation; 87 FR 74479, December 5, 2022), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We contacted all federally recognized Tribes in the range of 
the Clear Lake hitch during the initiation of our SSA development 
process. Two of the local Tribes provided technical review of the SSA 
report. We will continue to work with relevant Tribal entities during 
the development of a final rule for listing of, and a proposed rule for 
the designation of critical habitat for, the Clear Lake hitch.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by adding an entry for ``Hitch, Clear Lake'' in 
alphabetical order under FISHES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

[[Page 4941]]

 
                                                  * * * * * * *
Hitch, Clear Lake...............  Lavinia exilicauda  Wherever found....  T              [Federal Register
                                   chi.                                                   citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.44(mm).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.44 by adding paragraph (mm) to read as follows:


Sec.  17.44   Species-specific rules--fishes.

* * * * *
    (mm) Clear Lake hitch (Lavinia exilicauda chi).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the Clear Lake hitch. Except as 
provided under paragraph (mm)(2) of this section and Sec. Sec.  17.4 
and 17.5, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit, or cause to be committed any of the following acts in regard 
to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Activities that remove toxicants, other chemicals, and related 
water diversion infrastructure from illegal cannabis cultivation sites 
in the Clear Lake watershed.
    (B) Fuels and fire management activities (such as prescribed fire) 
to reduce the risk or severity of catastrophic wildfire, and when such 
activities will be carried out in accordance with an established and 
recognized fuels or forest management plan that includes measures to 
minimize impacts to the Clear Lake hitch or aquatic habitats and will 
result in conservation benefits to the Clear Lake hitch. This exception 
does not include the use of heavy equipment, such as bulldozers, 
backhoes, or tractors, for fuels and fire management activities.
    (C) Habitat management and restoration efforts that are 
specifically designed to provide for the conservation of the Clear Lake 
hitch's habitat needs and include measures that minimize impacts to the 
Clear Lake hitch and its habitat. These efforts must be carried out in 
accordance with finalized conservation plans or strategies for the 
Clear Lake hitch that have the approval of appropriate State or Federal 
agencies.
    (D) Removal or eradication of nonnative fish species, including, 
but not limited to, carp and goldfish, for the conservation benefit of 
the Clear Lake hitch. This exception does not include actions that 
disturb habitat or involve the use of chemicals.
    (vi) Purposefully take associated with:
    (A) Collection of Clear Lake hitch individuals by members of 
federally recognized Tribes for ceremonial use or traditional Tribal 
consumption if the collection is conducted pursuant to a Tribal 
conservation plan.
    (B) Activities associated with rescuing Clear Lake hitch 
individuals that are at risk of stranding in drying or warming pools 
and relocating them into connected waterways.
* * * * *

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-31756 Filed 1-15-25; 8:45 am]
BILLING CODE 4333-15-P`