Vol. 151, No. 50 — December 16, 2017

Critical Habitat of the Lake Chubsucker (Erimyzon sucetta) Order

Statutory authority

Species at Risk Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Lake Chubsucker (Erimyzon sucetta) is a freshwater fish that is declining throughout most of its range across Canada and the United States. The Canadian range of this species is restricted to Southwestern Ontario. In November 2001, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) reassessed the Lake Chubsucker as threatened. The Lake Chubsucker was listed as a threatened species under Schedule 1, Part 3, of the Species at Risk Act (SARA) when that Act came into force in June 2003. Following an update status report and reassessment by COSEWIC in November 2008, the status of the Lake Chubsucker was changed in June 2011 from a threatened species to an endangered species (see footnote 1) under Schedule 1, Part 2, of SARA.

When a species has been listed as extirpated, endangered or threatened under SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister or ministers and included in the Species at Risk Public Registry (Public Registry). Critical habitat for the Lake Chubsucker was identified in June 2010 in the Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada. (see footnote 2) A description of the critical habitat of the Lake Chubsucker located within the Big Creek National Wildlife Area, the Long Point National Wildlife Area, the St. Clair National Wildlife Area, and Point Pelee National Park of Canada was published in the Canada Gazette, Part I, on August 28, 2010, (see footnote 3) pursuant to subsection 58(2) of SARA.

As the competent ministers under SARA, the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency (who is also the Minister of Environment and Climate Change) are required to ensure that the critical habitat of the Lake Chubsucker is protected by provisions in, or measures under, SARA or any other Act of Parliament, or by the application of subsection 58(1) of SARA. This would be accomplished through the making of the Critical Habitat of the Lake Chubsucker (Erimyzon sucetta) Order (the Order) under subsections 58(4) and (5) of SARA, which would trigger the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order would afford an additional tool to protect the habitat of the Lake Chubsucker and would enhance the ability of the Minister of Fisheries and Oceans to ensure that this critical habitat is protected against destruction to support efforts towards recovery of the species.

Background

The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, the Species at Risk Act received royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened.

The Lake Chubsucker is a small freshwater fish and a member of the sucker family. It typically inhabits clear, well-vegetated, slow-moving or still waters with substrates of gravel, sand, silt and organic debris. In Ontario, the species is usually found in heavily vegetated stagnant bays, channels, ponds and swamps. The Lake Chubsucker is declining throughout most of its range in Canada and the United States. The Canadian range of this species is restricted to Southwestern Ontario in the Ausable River drainage, Lake St. Clair, Thames River drainage, coastal wetlands of Lake Erie and several tributaries of Big Creek and the Niagara River.

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Lake Chubsucker are already subject to other federal regulatory mechanisms. Subsection 35(1) of the Fisheries Act prohibits serious harm to fish, which is defined in that Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that serious harm to fish encompasses destruction of fish habitat, subsection 35(1) of the Fisheries Act contributes to the protection of the critical habitat of the Lake Chubsucker. Protection is also offered by the Canada National Parks Act and its regulations for the portion of habitat that falls within Point Pelee National Park of Canada, and by the Wildlife Area Regulations made under the Canada Wildlife Act for the portion of habitat that falls within the Big Creek National Wildlife Area, the Long Point National Wildlife Area and the St. Clair National Wildlife Area.

The conservation of Canada’s natural aquatic ecosystems and the protection and recovery of its wild species are essential to Canada’s environmental, social and economic well-being. SARA also recognizes that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.” A review of the literature confirms that Canadians value the conservation of species and measures taken to conserve their preferred habitat. In addition, protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem functions such as filtering drinking water and capturing the sun’s energy, which is vital to all life.

Objectives

The long-term recovery goal (greater than 20 years) set out in the Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada is to maintain current populations of the Lake Chubsucker and to restore viable populations to formerly occupied wetland habitats. Efforts to achieve this recovery goal are ongoing and involve a number of recovery objectives outlined in the Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada. Threats to this species include siltation, increased turbidity, nutrient loading, and loss of its preferred wetland habitat (clear, still, well-vegetated waters) through habitat alteration, channelization, wetland drainage, pollution, changes to rates of flow, and possibly exotic species and climate change. In Southwestern Ontario, the leading causes of habitat loss for this species appear to be the draining of wetlands, as well as siltation and nutrient loading due to agricultural practices. Protection of critical habitat is an important component aimed at ensuring the recovery of the Lake Chubsucker, particularly given its extremely limited distribution in Canada.

Pursuant to subsections 58(4) and (5) of SARA, the Order would trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Lake Chubsucker.

Description

The Lake Chubsucker inhabits shallow (0–2 m)waters with abundant submerged vegetation. Critical habitat has been partially identified for extant Lake Chubsucker populations in the Old Ausable Channel, L Lake, St. Clair National Wildlife Area (St. Clair Unit), Point Pelee National Park of Canada, Rondeau Bay, Long Point Bay (including Long Point National Wildlife Area and Long Point Provincial Park), Big Creek National Wildlife Area and Lyons Creek. Within these areas, critical habitat is defined as the habitats that meet the functional habitat requirements for one or more Lake Chubsucker life stages, such as spawning, hatching, young-of-the-year, juvenile, or adult. The Order would trigger the prohibition in subsection 58(1) of SARA against the destruction of the critical habitat, including the biophysical attributes identified in the recovery strategy, and result in the critical habitat identified in the Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada being legally protected.

The Order would provide an additional tool that would enable the Minister of Fisheries and Oceans to ensure that the habitat of the Lake Chubsucker is protected against destruction and to prosecute persons who commit an offence under subsection 97(1) of SARA. To support compliance with the subsection 58(1) prohibition, SARA provides for penalties for contraventions, including fines or imprisonment, as well as agreements on alternative measures, and seizure and forfeiture of things seized or of the proceeds of their disposition. This Order would serve to

“One-for-One” Rule

The “One-for-One” Rule would not apply to the Order, as there would be no anticipated additional administrative costs imposed on businesses. The Order would be implemented under existing processes.

Small business lens

The small business lens would not apply to the Order, as there would be no administrative burden costs imposed on small business.

Consultation

The proposed Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada was posted on the Public Registry for comments between April 3, 2009, and June 2, 2009, and notices of the posting were sent to non-governmental organizations and municipalities. Information packages were sent to potentially affected Aboriginal communities, non-government organizations, stakeholders, local communities, and municipalities to request comments on the recovery strategy and the critical habitat identified. An announcement was prepared and placed in newspapers with circulation in the area where this fish occurs or was historically found to inform landowners and the general public about the recovery strategy and to request their comments. The proposed recovery strategy was updated based on the comments received.

Signage with both stewardship and legislative messaging was posted at some critical habitat locations in 2010 to inform local residents of the existence and importance of critical habitat for the Lake Chubsucker.

Information sessions were hosted in 2010 by Fisheries and Oceans Canada to inform groups and agencies (e.g. conservation authorities, drainage superintendents and municipalities) about the location and protection of critical habitat for Lake Chubsucker as well as other fish species in Southwestern Ontario.

Rationale

The current recovery goal for the Lake Chubsucker, as outlined in the Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada, is to maintain current populations of the Lake Chubsucker and restore viable populations to formerly occupied wetland habitats. Over the five-year period from when the recovery strategy was finalized, the population and distribution objective was to maintain current distributions and densities of known extant populations in the Old Ausable Channel, L Lake, Lake St. Clair (Walpole Island and St. Clair National Wildlife Area), Lake Erie (Point Pelee National Park of Canada, Rondeau Bay, Long Point Bay, Big Creek National Wildlife Area) and the upper Niagara River (Lyons Creek).

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA (see footnote 4) must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through SARA, failing which, the competent minister must make an order under subsections 58(4) and (5) of SARA. This Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat. Projects likely to destroy the critical habitat of the Lake Chubsucker are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements would therefore be imposed upon stakeholders as a result of the coming into force of the Order.

Considering the existing federal regulatory mechanisms in place, the incremental impacts to Canadians that will result from the making of the Order are anticipated to result in negligible incremental costs and benefits. The federal government may undertake some additional activities associated with compliance promotion and enforcement following the making of the Order that may result in incremental costs for the federal government; however, these are expected to be low and would be absorbed through existing funding allocations.

Based upon the best evidence currently available, and the application of the existing regulatory mechanisms, no additional compliance costs and administrative burden on the part of Canadians and Canadian businesses are anticipated. Threats to Lake Chubsucker critical habitat are managed and would continue to be managed through existing measures under federal legislation.

The compliance promotion and enforcement activities to be undertaken by the Department, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process during the development of the recovery strategy and Action Plan, may also contribute to behavioural changes on the part of Canadian businesses and Canadians (including Aboriginal groups) that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.

Implementation, enforcement and service standards

Fisheries and Oceans Canada’s current practice for the protection of the Lake Chubsucker and its habitat is to direct all proponents of projects to apply for the issuance of a permit or agreement authorizing a person to affect a listed species so long as certain conditions are first met. Under subsection 73(1) of SARA, the competent minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed wildlife species, any part of its critical habitat, or the residences of its individuals. Under subsection 73(2) of SARA, the agreement may be entered into, or the permit issued, only if the Minister is of the opinion that

In addition, proponents of works and developments in areas where Lake Chubsucker is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of Lake Chubsucker, per section 32 of SARA.

Fisheries and Oceans Canada is currently not aware of any planned or ongoing activities that would need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts in order to avoid destroying Lake Chubsucker critical habitat or jeopardizing the survival or recovery of the species.

Fisheries and Oceans Canada will continue to implement SARA provisions and existing federal legislation under its jurisdiction and to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the Lake Chubsucker habitat. If new scientific information supporting changes to Lake Chubsucker critical habitat becomes available at some point in the future, the Recovery Strategy for the Lake Chubsucker (Erimyzon sucetta) in Canada will be updated as appropriate. The prohibition that would be triggered by the Order would provide a further deterrent in addition to the existing regulatory mechanisms and would specifically safeguard the critical habitat of the Lake Chubsucker through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.

Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to Fisheries and Oceans Canada for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorization under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister of Fisheries and Oceans is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, as stated above. Furthermore, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to issuing SARA-compliant Fisheries Act authorizations, the Minister of Fisheries and Oceans must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted, that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals, and that the activity will not jeopardize the survival or recovery of the species.

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 35(1) and 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Lake Chubsucker should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.

Contact

Julie Stewart
Director
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote a), proposes to make the annexed Critical Habitat of the Lake Chubsucker (Erimyzon sucetta) Order.

Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Julie Stewart, Director, Species at Risk Program, Department of Fisheries and Oceans, 200 Kent St., Ottawa, Ontario K1A 0E6 (fax: 613-990-4810; email: SARA_LEP@dfo-mpo.gc.ca).

Ottawa, November 30, 2017

Dominic LeBlanc
Minister of Fisheries and Oceans

Critical Habitat of the Lake Chubsucker (Erimyzon sucetta) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Lake Chubsucker (Erimyzon sucetta) — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act, more specifically, in Point Pelee National Park of Canada as described in Part 5 of Schedule 1 to the Canada National Parks Act and in Big Creek National Wildlife Area, Long Point National Wildlife Area and St. Clair National Wildlife Area as described in Part IV of Schedule I to the Wildlife Area Regulations.

Critical habitat

2 (1) For greater certainty, section 1 applies to that species’ critical habitat that is contained within the following areas:

Features and attributes

(2) The critical habitat of the species includes the key features and attributes set out in columns 3 and 4 of Table 2 of the schedule.

Coming into force

3 This Order comes into force on the day on which it is registered.

SCHEDULE

(Section 2)

TABLE 1

Coordinates of the Areas Within Which the Critical Habitat of the Lake Chubsucker is Found

Item

Column 1
Location

Column 2
Point 1 (NW)

Column 3
Point 2 (NE)

Column 4
Point 3 (SE)

Column 5
Point 4 (SW)

1

L Lake

Latitude 43°13′27.490″ N, longitude 81°55′17.517″ W

Latitude 43°13′40.029″ N, longitude 81°54′29.740″ W

Latitude 43°13′24.085″ N, longitude 81°54′20.904″ W

 

2

Rondeau Bay

Latitude 42°16′58.396″ N, longitude 81°53′50.301″ W

Latitude 42°19′34.763″ N, longitude 81°51′19.993″ W

Latitude 42°19′32.256″ N, longitude 81°50′42.122″ W

Latitude 42°16′03.673″ N, longitude 81°52′40.250″ W

3

Long Point Bay

Latitude 42°40′45.822″ N, longitude 80°19′57.794″ W

Latitude 42°33′04.619″ N, longitude 80°02′20.594″ W

Latitude 42°34′43.393″ N, longitude 80°26′24.629″ W

Latitude 42°36′36.151″ N, longitude 80°27′31.869″ W

MAPS

Map 1: Critical Habitat of the Lake Chubsucker Within the Old Ausable Channel

Map-Detailed information can be found in the surrounding text.

Map 2: Critical Habitat of the Lake Chubsucker in L Lak

Map-Detailed information can be found in the surrounding text.

Map 3: Critical Habitat of the Lake Chubsucker in Rondeau Bay

Map-Detailed information can be found in the surrounding text.

Map 4: Critical Habitat of the Lake Chubsucker in Long Point Bay

Map-Detailed information can be found in the surrounding text.

Map 5: Critical Habitat of the Lake Chubsucker in Lyons Creek

Map-Detailed information can be found in the surrounding text.

TABLE 2

Key Features and Attributes of Critical Habitat

Column 1

Life Stage

Column 2

Function

Column 3

Features

Column 4

Attributes

Spawn to hatch

Spawning, cover,
nursery

Areas that seasonally support aquatic vegetation

  • Shallow water (0–2 m) of bays, ponds, marshes, lower reaches of tributaries
  • Abundant submerged aquatic vegetation
  • Water temperatures of approximately 20°C from April to June

Young-of-the-year, juvenile, adult

Feeding, cover, nursery

Areas that seasonally support aquatic vegetation

  • Calm and shallow water (0–2 m)
  • Abundant aquatic vegetation
  • Substrates of sand, silt, clay, organic debris
  • Low turbidity

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