Critical Habitat of the Speckled Dace (Rhinichthys osculus) Order: SOR/2018-218
Canada Gazette, Part II, Volume 152, Number 23
SOR/2018-218 October 25, 2018
SPECIES AT RISK ACT
Whereas the Speckled Dace (Rhinichthys osculus) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;
Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
And whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;
Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Speckled Dace (Rhinichthys osculus) Order.
Ottawa, October 24, 2018
Minister of Fisheries and Oceans
Critical Habitat of the Speckled Dace (Rhinichthys osculus) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Speckled Dace (Rhinichthys osculus), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.
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 Speckled Dace (Rhinichthys osculus) is a small freshwater fish that is widely distributed in rivers throughout western North America. In Canada, Speckled Dace occurs only in a short section of the Columbia River drainage in the Kootenay Boundary regional district of British Columbia. While this species is moderately abundant, its distribution in Canada is very restricted, suggesting that the Speckled Dace will continually be at some risk. In April 1980, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Speckled Dace and classified the species as special concern. In November 2002, the Speckled Dace population was reassessed by COSEWIC as endangered. COSEWIC re-examined and confirmed this assessment in April 2006. In March 2009, the Speckled Dace was listed as endangered footnote 1 in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA).
When a wildlife species is listed as an extirpated species, an endangered species or a threatened species in Schedule 1 of SARA, the prohibitions in sections 32 and 33 of SARA automatically apply:
- prohibition against killing, harming, harassing, capturing or taking an individual of such species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of such species, or any part or derivative of such an individual; and
- prohibition against damaging or destroying the residence of one or more individuals of such species (this prohibition applies to the residence of individuals of a species listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada).
In addition, 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 (the Public Registry). The recovery strategy or action plan must include an identification of the species’ critical habitat, to the extent possible, based on the best available information. The critical habitat of the Speckled Dace was identified in the Recovery Strategy for the Speckled Dace (Rhinichthys osculus) in Canada (2018) [the Recovery Strategy].
As the competent minister under SARA with respect to aquatic species, other than individuals in or on federal lands administered by the Parks Canada Agency, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitat of the Speckled Dace 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 will be accomplished through the making of the Critical Habitat of the Speckled Dace (Rhinichthys osculus) Order (the Order), under subsections 58(4) and (5) of SARA, which triggers the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order affords the MFO the tool needed to ensure that the critical habitat of the Speckled Dace is legally protected and enhances the protection already afforded to the Speckled Dace habitat under existing legislation to support efforts towards the recovery of the species.
The Government of Canada is committed to conserve biodiversity and the sustainable management of fish stocks 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. This Act 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.
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.
Speckled Dace are bottom-feeding fish that make use of river margins, riffles, runs and pools to find food resources. The species prefers shallow and slow flowing riverine habitats, and likely relies on substrate for cover. In 2010, field studies confirmed a large and robust population of Speckled Dace throughout its range in the West Kettle, Kettle and Granby rivers, signifying that suitable habitat for the species is still abundant. Although more recent population abundance estimates have suggested that the population is larger than previously thought, the small distribution of Speckled Dace and continual development in the Columbia River drainage suggests that the species will always be susceptible to threats.
Works, undertakings or activities (projects) likely to destroy any part of the critical habitat of the Speckled Dace 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, the prohibition in subsection 35(1) of the Fisheries Act contributes to the protection of the critical habitat of the Speckled Dace.
The population and distribution objective, as set out in the Recovery Strategy, is to maintain the current distribution and abundance of Speckled Dace within natural fluctuations. Efforts to meet the population and distribution objective are ongoing and supported by the broad strategies and general approaches described in the Recovery Strategy and will be supported through the development of an action plan.
Current threats to the Speckled Dace, as identified in the Recovery Strategy, include reduced flows in summer and autumn due to irrigation and other consumptive uses; inundation and loss of habitat through proposed hydro development; increased siltation and substrate embeddedness from agricultural land clearing; increased siltation and substrate embeddedness from forestry activities; harmful substance and sediment releases and substrate embeddedness from mining activities; increased predation by invasive piscivorous fish; and changes in hydrograph, temperature, cover and stream morphology. Reduced flows in summer and autumn are the most significant threat to the survival and recovery of the Speckled Dace, given the increasing frequency of drought conditions and projected increasing water demands around the Columbia River drainage.
Critical habitat protection is important for ensuring the protection of the habitat necessary for the survival and recovery of the Speckled Dace.
Pursuant to subsections 58(4) and (5) of SARA, the Order triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Speckled Dace and results in the critical habitat of the Speckled Dace being legally protected.
The preferred habitat of the Speckled Dace is shallow and slow-flowing riverine habitats with substrate for cover. The critical habitat for this species has been identified in the Recovery Strategy as located within the Columbia River drainage in British Columbia and includes a 2,4-kilometre long section in each of the West Kettle, Kettle and Granby rivers. Critical habitat extends landward to the high-water mark as defined for streams in the Schedule of Riparian Areas Regulation Assessment Methods attached to the Riparian Areas Regulation (B.C. Reg. 376/2004). footnote 3Maps of these areas can be found in the Recovery Strategy. The Order triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical features and attributes identified in the Recovery Strategy, and results in the critical habitat of the Speckled Dace identified in the Recovery Strategy being legally protected.
The Order provides an additional tool that enables the MFO to ensure that the habitat of the Speckled Dace is protected against destruction, and to prosecute persons who commit an offence under subsection 97(1) of SARA. To support compliance with the prohibition in subsection 58(1) of SARA, 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. This Order serves to
- communicate to Canadians the prohibition against the destruction of any part of the critical habitat of the Speckled Dace, 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 which may result in the destruction of 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 businesses.
To the extent possible, the Recovery Strategy has been prepared in cooperation with the Province of British Columbia as per subsection 39(1) of SARA.
In December 2013, Fisheries and Oceans Canada held a technical workshop to seek comments and input on the draft Recovery Strategy, including critical habitat, and to ensure the document incorporated the best technical and scientific expertise on Speckled Dace. Indigenous groups, industry, environmental consultants, academia, community stewardship groups and government representatives were invited to participate.
The draft Recovery Strategy was posted to the Department of Fisheries and Oceans (Pacific Region) consultation website for a 48-day public comment period from August 28 to October 14, 2014. It indicated that legal protection of critical habitat was anticipated through the application of a SARA critical habitat order made under subsections 58(4) and (5), which will invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat. Input to the consultation was solicited online via the regional consultation website and email notifications were sent to approximately 125 stakeholders, including agricultural associations, industry, academia, environmental non-government organizations, community stewardship groups and government representatives (municipal, regional, provincial, federal, and United States federal and state). Direct mail outs were sent to approximately 80 private landowners located near the proposed critical habitat. Direct mail outs, faxes and emails with information on the draft Recovery Strategy consultations were sent to 14 Indigenous groups; they were also offered in-person meetings.
During regional consultations, only one letter was received. The letter was from an Indigenous organization and included technical information on Speckled Dace, the ecological connectivity of the species and the importance of water to their community. The feedback received was considered in the proposed Recovery Strategy.
The proposed Recovery Strategy was published in the Public Registry for a 60-day public comment period from August 18 to October 17, 2016. The proposed Recovery Strategy indicated that the critical habitat would be legally protected through a SARA critical habitat order made under subsections 58(4) and (5), which will trigger the prohibition in subsection 58(1) of SARA against the destruction of critical habitat. No comments were received during the public comment period, and no comments were received regarding the proposal to identify critical habitat. The final Recovery Strategy was posted on the Species at Risk Public Registry on May 1, 2018.
Speckled Dace’s critical habitat does not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act. The critical habitat is not located on land managed by any wildlife management boards.
Overall, no significant concerns were raised during the consultation period with respect to critical habitat, and opposition to the Order is not anticipated.
The population and distribution objective for the Speckled Dace is to maintain the current distribution and abundance of Speckled Dace within natural fluctuations. “Current” refers to the best available knowledge on Speckled Dace population and distribution, as stated in the Recovery Strategy. As identified in the Recovery Strategy, a number of significant actions specific to the recovery of Speckled Dace have taken place since the 2006 COSEWIC assessment document was published. These include the development of abundance estimates, which helped in understanding threats and developing the population and distribution objective, and studies which helped to inform the identification of Speckled Dace critical habitat.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final Recovery Strategy in the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA 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 subsection 58(1) of SARA and other provisions of SARA, failing which, the MFO 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 Speckled Dace are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed upon stakeholders as a result of the coming into force of this Order.
Based upon the best evidence currently available and the application of the existing regulatory mechanisms, no additional compliance cost or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to Speckled Dace critical habitat are managed and will continue to be managed through existing measures under federal legislation.
Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. 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 critical habitat identification process, may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous 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 Speckled Dace and its habitat is to advise all proponents of projects to apply for the issuance of a permit or agreement authorizing a person to affect a listed species or its critical habitat so long as certain conditions are first met. Under section 73 of SARA, the MFO 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 aquatic 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 MFO is of the opinion that
- the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- 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.
Further, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to entering into an agreement or issuing a permit, 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;
- 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
- the activity will not jeopardize the survival or recovery of the species.
If the above conditions cannot be met, proponents are advised not to undertake their project, or to modify their project so as to meet these conditions.
Fisheries and Oceans Canada 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, so as to avoid destroying Speckled Dace 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 habitat of the Speckled Dace. These standards and specifications are aligned with those that will be required once the Order comes into force. If new scientific information supporting changes to Speckled Dace critical habitat becomes available, the Recovery Strategy will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. 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 Speckled Dace 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 the MFO 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 survival or recovery.
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, as stated above. Furthermore, the pre-conditions set out in subsection 73(3) of SARA, as stated above, must also be satisfied.
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 Speckled Dace 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
200 Kent Street