Vol. 151, No. 25 — December 13, 2017
SOR/2017-265 December 4, 2017
SPECIES AT RISK ACT
Whereas the Eastern Sand Darter (Ammocrypta pellucida) Ontario populations is a wildlife species that is listed as a threatened species in Part 3 of Schedule 1 to the Species at Risk Act (see footnote a);
Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
Whereas a portion of the critical habitat of that species is in a place referred to in subsection 58(2) (see footnote b) of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;
And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect reserves or other lands that are set apart for the use and benefit of bands and, pursuant to subsection 58(7) of that Act, has consulted with the Minister of Indian Affairs and Northern Development and the bands in question with respect to the Order;
Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote c), makes the annexed Critical Habitat of the Eastern Sand Darter (Ammocrypta pellucida) Ontario Populations Order.
Ottawa, November 30, 2017
Minister of Fisheries and Oceans
Critical Habitat of the Eastern Sand Darter (Ammocrypta pellucida) Ontario Populations Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Eastern Sand Darter (Ammocrypta pellucida) Ontario populations — 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 the Long Point National Wildlife Area, as described in Part IV of Schedule I to the Wildlife Area Regulations.
Coming into Force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The extent of occurrence of Eastern Sand Darter (Ammocrypta pellucida) in Ontario is approximately half of what it was in the 1970s as a result of habitat loss and degradation. The species was previously considered a single designatable unit in Canada and designated by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) as threatened (see footnote 1) in April 1994 and November 2000. In November 2009, COSEWIC split the species into two designatable units: Ontario populations and Quebec populations. COSEWIC assessed the Eastern Sand Darter, Ontario populations, as threatened and the Governor General in Council listed it, in October 2012, as threatened under Schedule 1, Part 3, of the Species at Risk Act (see footnote 2) (SARA).
When a species has been listed as extirpated, threatened or endangered under SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Species at Risk Public Registry (Public Registry). Critical habitat for the Ontario populations of Eastern Sand Darter was identified in the Recovery Strategy for the Eastern Sand Darter (Ammocrypta pellucida) in Canada: Ontario Populations (2012) [Recovery Strategy].
As competent minister under SARA, the Minister of Fisheries and Oceans (MFO) is required to ensure that the Eastern Sand Darter’s, Ontario populations, critical habitat 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 protection will be accomplished through the making of the Critical Habitat of the Eastern Sand Darter (Ammocrypta pellucida), Ontario Populations Order (Order) under subsections 58(4) and (5) of SARA, which will trigger the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order affords an additional tool for the protection of Eastern Sand Darter’s critical habitat in Ontario and enhances the ability of the MFO to ensure that the Eastern Sand Darter’s, Ontario populations, critical habitat is protected against destruction to support efforts towards the recovery of the species.
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, SARA 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 Eastern Sand Darter is a small benthic and translucent fish whose North American range is discontinuous and composed of two disjunct areas (Great Lakes and Ohio River drainage, and the Lake Champlain and St. Lawrence River area). In Ontario, populations have recently been collected in lakes Erie and St. Clair, and from the Sydenham, Grand, and Thames rivers, as well as Big Creek (Norfolk County). Populations are presumed to be extirpated from Big Otter Creek, Catfish Creek, and the Ausable River.
Works, undertakings or activities (projects) likely to destroy the critical habitat of the Eastern Sand Darter, Ontario populations, are currently already subject to other federal regulatory mechanisms. Section 35 of the Fisheries Act, prohibits serious harm to fish, which is defined in the Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that serious harm to fish encompasses the destruction of fish habitat, the prohibition under section 35 contributes to the protection of critical habitat for the Eastern Sand Darter in Ontario.
Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is 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 services such as filtering drinking water and capturing the sun’s energy, which is vital to all life.
The long-term objective of the Recovery Strategy is to maintain self-sustaining, extant populations and to restore self-sustaining populations to formerly occupied habitats, where feasible. Efforts to achieve both the short-term and long-term goals are ongoing and are supported through measures outlined in the Recovery Strategy. Present threats to the Eastern Sand Darter as identified in the Recovery Strategy, include turbidity and sediment loading, contaminants and toxic substances, nutrient loading, barriers to movement, altered flow regimes, shoreline modifications, incidental harvest, and invasive species and disease.
In Ontario, the survival and recovery of the Eastern Sand Darter is primarily threatened by turbidity and sediment loading, contaminants and toxic substances, altered flow regimes, and the introduction of exotic species and disease. Measurable progress towards meeting some of the goals, objectives and performance measures presented in the Recovery Strategy is ongoing, as several Eastern Sand Darter surveys have been conducted between 1997 and 2010 in historically and/or currently occupied waterbodies. Furthermore, five ecosystems or multi-species recovery strategies that include the Eastern Sand Darter have been initiated in Ontario.
In accordance with section 58 of SARA, the Order under subsections 58(4) and (5) of SARA will trigger the prohibition set out in subsection 58(1) against destruction of any part of the species’ identified critical habitat.
The preferred habitat of the Eastern Sand Darter is sand-bottomed areas in streams and rivers, and sandy shoals in lakes. Critical habitat has been identified as the reaches of streams and rivers with sand substrate; sandy shoals, bars, and beaches; and, shallow pools and bays of the Sydenham River, Thames River, Grand River, Big Creek (Norfolk County), and Long Point Bay (Lake Erie). These areas support the nursing, feeding, cover and spawning life stages of the Eastern Sand Darter, Ontario populations. The Order triggers the prohibition against the destruction of the critical habitat, including the biophysical attributes identified in the Recovery Strategy, and results in the critical habitat identified in the Recovery Strategy (see footnote 3) being legally protected.
The Order enables the MFO to protect the critical habitat of the Eastern Sand Darter, Ontario populations, against destruction under subsection 58(1) of SARA, and to prosecute those 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 alternative measures agreements and seizure and forfeiture of things seized or of the proceeds of their disposition. The protection provided by this Order serves to
- communicate to Canadians the prohibition against the destruction of any part of the Eastern Sand Darter’s critical habitat in Ontario, and where it applies, so that they can plan their activities within a regulatory regime that is clearly articulated;
- complement existing federal acts and regulations; and
- ensure that all human activities that may result in the destruction of identified critical habitat are managed to the extent required under SARA.
The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business.
The “One-for-One” Rule does not apply to this Order, as there are no anticipated additional administrative costs on businesses. The Order will be implemented under existing processes.
Small business lens
The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians.
The small business lens does not apply to this Order, as there are no administrative burden costs on small business.
Signage with both stewardship and legislative messaging regarding protection under SARA were posted at some critical habitat locations in 2010, 2014, and 2015 to inform local residents of the existence and importance of critical habitat for the Eastern Sand Darter, Ontario populations. Furthermore, the Department of Fisheries and Oceans (DFO) organized information sessions in 2010 to inform groups and agencies (e.g. conservation authorities, drainage superintendents, and municipalities) about the location and protection of critical habitat for the Eastern Sand Darter and other fishes and mussels at risk in southwestern Ontario.
Consultation on the proposed Recovery Strategy for the Eastern Sand Darter, Ontario populations took place in May 2012, and included the following:
- Information packages (which included a summary of the Recovery Strategy that referred to areas identified as critical habitat) were sent to potentially affected Aboriginal/First Nation communities, non-governmental organizations, stakeholders, and municipalities. These groups were informed that the proposed Recovery Strategy was to be posted and were invited to comment. The Recovery Strategy includes explicit reference to the fact that the critical habitat of the Eastern Sand Darter will be legally protected through the application of subsection 58(1) of SARA.
- An announcement was prepared and placed in newspapers in localities where the Eastern Sand Darter occurs, or was historically present, to inform landowners and the general public about the Recovery Strategy and to request their comments.
As a result, one meeting was held with a First Nation group (Walpole Island First Nation) and revisions were made to the proposed Recovery Strategy based on feedback from this community. No additional concerns were received; follow up with this group eventually resulted in a broader consultation plan being implemented with the federal government (DFO and Environment Canada) on multiple SARA documents. No other comments were received on the proposed Recovery Strategy and no significant concerns were noted with respect to critical habitat during the consultation period.
Under subsection 58(7) of SARA, five First Nations with lands adjacent to Eastern Sand Darter critical habitat were contacted. Munsee-Delaware Nation, Oneida Nation and Delaware Nation (all on the Thames) and Six Nations (Grand River) did not express any concern with the development of a Critical Habitat Order. Only one First Nation, the Chippewa of the Thames First Nation (COTTFN), was opposed to the establishment of a Critical Habitat Order. COTTFN was first contacted in April 2012 focusing on the proposed Recovery Strategy for the Eastern Sand Darter, Ontario populations, and two other species. The first letter sent to COTTFN specifically regarding the establishment of a Critical Habitat Order for the Easter Sand Darter was sent in November 2012. COTTFN believes that it maintains title to the Thames River, including the riverbed and, therefore, SARA cannot apply to the Thames River. An initial Critical Habitat Order meeting occurred in February 2013, and a second in November 2013 that included DFO’s Regional Manager, Species at Risk Program staff and DFO’s Community Liaison Unit Manager. In December 2013, a letter was sent by COTTFN to the MFO, regarding their opposition to the Critical Habitat Order. Numerous follow-up calls and emails have been exchanged on the Critical Habitat Order, but COTTFN remains opposed to the establishment of a Critical Habitat Order for the Eastern Sand Darter, Ontario populations. Although DFO believes that the Critical Habitat Order would not negatively affect Aboriginal use of aquatic resources or development on the river, it is COTTFN’s assertion that they maintain title to the river and that remains the basis for their opposition to any enforcement of federal laws on this watercourse.
Additionally, under subsection 58(7) of SARA, the Minister of Indian Affairs and Northern Development was contacted for input. That Minister did not have any comments or concerns to report with respect to impacts to Aboriginal communities and First Nations.
Consultation with the Minister of the Environment was completed in accordance with subsection 58(9) of SARA, as the Order will affect land under her authority in the Long Point National Wildlife Area. The response from environmental non-governmental organizations (ENGOs) to a Critical Habitat Order is expected to be positive as it would be viewed to represent a higher level of habitat protection.
DFO continues to advise stakeholders on an ongoing basis with regards to all technical standards and specifications on activities and works that may contribute to the killing, harming and harassing of individuals. These standards and specifications are closely aligned to those that would be required once the Order comes into force.
Based on consultation results, it is anticipated that there would be some opposition from the COTTFN, albeit low opposition due to the nature of their complaint, and potentially medium support for the Critical Habitat Order from stakeholders. Any unexpected opposition would be managed with outreach and education to clarify Critical Habitat Order requirements.
The current long-term recovery goals of the Eastern Sand Darter, Ontario populations, as outlined in the Recovery Strategy, is to maintain self-sustaining, extant populations and to restore self-sustaining populations to formerly occupied habitats, where feasible. The population and distribution objective for Eastern Sand Darter, Ontario populations is to ensure the survival of self-sustaining populations at the six extant locations (Sydenham River, Thames River, Lake St. Clair, Big Creek, Grand River, Lake Erie [Long Point Bay]), and restore self-sustaining population(s) at the following locations: Ausable River, Lake Erie (Rondeau Bay and Pelee Island), Catfish Creek, and Big Otter Creek, where feasible. At present, the number of populations present at each location is unknown and further research is required.
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. Critical habitat that is not in a place referred to in subsection 58(2) of SARA 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 of any other Act of Parliament. 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 subsection 58(1) of SARA, failing which, the Minister must make an Order under subsections 58(4) and (5) of SARA. Projects likely to destroy the critical habitat of the Eastern Sand Darter populations in Ontario 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 costs and benefits are anticipated to be negligible. The proposed Order is not anticipated to result in incremental costs to Canadian businesses and Canadians. However, the federal government may incur some negligible costs, as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations. The compliance promotion and enforcement activities to be undertaken by the Department, in combination with the continuing outreach activities undertaken as part of the identification process of critical habitat during the development of the Recovery Strategy and Action Plan may also contribute towards 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
DFO’s current practice for the protection of the Eastern Sand Darter, Ontario populations, 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.
In addition, proponents of works and developments in areas where Eastern Sand Darter, Ontario populations, are present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of Eastern Sand Darter, Ontario populations (SARA, section 32).
DFO is currently not aware of any planned or ongoing activities that will 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 destruction of Eastern Sand Darter, Ontario populations, critical habitat.
DFO will continue to implement SARA provisions and existing federal legislation under its jurisdiction in order to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the killing, harming and harassing of individuals of the Eastern Sand Darter, Ontario populations. These standards and specifications are aligned with those required when the Order is in force. If new scientific information supporting changes to the Eastern Sand Darter’s critical habitat in Ontario becomes available at some point in the future, the Recovery Strategy and subsequent Action Plan will be updated as appropriate. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Eastern Sand Darter, Ontario populations, through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.
DFO 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 the DFO 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 considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA — that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or affecting the species is incidental to the carrying out of the activity. 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 MFO 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 under subsections 35(1) or 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 Eastern Sand Darter, Ontario populations, should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.
Species at Risk Program
Fisheries and Oceans Canada and Canadian Coast Guard
200 Kent Street
- Footnote a
S.C. 2002, c. 29
- Footnote b
S.C. 2015, c. 10, s. 60
- Footnote c
S.C. 2002, c. 29
- Footnote 1
A “threatened species” is defined under the Species at Risk Act (SARA) as a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.
- Footnote 2
Species at Risk Act (S.C. 2002, c. 29)
- Footnote 3