Critical Habitat of the Hotwater Physa (Physella wrighti) Order: SOR/2019-21
Canada Gazette, Part II, Volume 153, Number 3
SOR/2019-21 January 25, 2019
SPECIES AT RISK ACT
Whereas the Hotwater Physa (Physella wrighti) 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 action plan 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 Hotwater Physa (Physella wrighti) Order.
Ottawa, January 24, 2019
Minister of Fisheries and Oceans
Critical Habitat of the Hotwater Physa (Physella wrighti) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Hotwater Physa (Physella wrighti), which is identified in the action plan 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 Hotwater Physa (Physella wrighti) is a small freshwater snail found only within the Liard River Hot Springs complex located in Liard River Hot Springs Provincial Park in northeastern British Columbia. While there is currently no evidence of a population decline, Hotwater Physa has a very small and localized distribution in Canada which makes it vulnerable to the risk of extinction due to human activities or catastrophic events. In April 1998, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Hotwater Physa and classified the species as an endangered footnote 1 species. In June 2003, the Hotwater Physa was listed as endangered in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA).
When a wildlife species is listed as an endangered or 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;
- prohibition against damaging or destroying the residence of one or more individuals of such species.
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 Recovery Strategy for the Hotwater Physa (Physella wrighti) in Canada (2007) [the Recovery Strategy] did not identify critical habitat. The critical habitat of the Hotwater Physa was identified in the Action Plan for the Hotwater Physa (Physella wrighti) in Canada (2018) [the Action Plan].
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 Hotwater Physa 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 is accomplished through the making of the Critical Habitat of the Hotwater Physa (Physella wrighti) 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 Hotwater Physa is legally protected and enhances the protection already afforded to the Hotwater Physa habitat under existing legislation 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.
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 Hotwater Physa is found only within the Liard River Hot Springs complex located in Liard River Hot Springs Provincial Park in northeastern British Columbia. The small hot springs complex provides a constant supply of geothermally heated water for the Hotwater Physa; the species can be found near the water’s surface. The quality of riparian habitat, including factors such as streambank stability, vegetation and shade, are important components of the species’ habitat needs. Hotwater Physa are a likely food source for Lake Chub (Couesius plumbeus), a fish species whose habitat overlaps with Hotwater Physa in many areas of the hot springs complex.
The Report on the Progress of Recovery Strategy Implementation for Hotwater Physa (Physella wrighti) in Canada for the Period 2007–2015 documents the progress of the Recovery Strategy implementation for the Hotwater Physa in Canada. It summarizes the progress that Fisheries and Oceans Canada, the Province of British Columbia, the broader scientific community and other interested parties have made towards achieving the goals and objectives set out in the Recovery Strategy.
Works, undertakings or activities likely to destroy any part of the critical habitat of the Hotwater Physa are already subject to other federal regulatory mechanisms. No additional requirements are therefore imposed upon stakeholders or Indigenous groups as a result of the coming into force of this Order.
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, and the Hotwater Physa occurs in fish habitat that supports commercial, recreational or Aboriginal fisheries (e.g. Lake Chub), the prohibition in subsection 35(1) of the Fisheries Act contributes to the protection of the critical habitat of the Hotwater Physa. The Liard River Hot Springs Provincial Park also provides protection to the Hotwater Physa through the British Columbia Park Act.
The recovery goal, as set out in the Recovery Strategy, is to maintain and protect the population(s) of Hotwater Physa within its natural geographic range and within its current variation of abundance at the Liard River Hot Springs complex. Efforts to achieve the recovery goal and objectives are ongoing and supported by the measures outlined in the Action Plan. Current threats to the Hotwater Physa, as identified in the Recovery Strategy, include introduction of deleterious substances, change to the flow regime as a result of human activities, physical habitat destruction or alteration, introduced species, and collecting. These threats to the survival and recovery of the Hotwater Physa are of particular concern given that this is the only known location where Hotwater Physa exist.
Even though measurable progress has been made in achieving the goals, objectives and performance measures presented in the Recovery Strategy, efforts to support the recovery of the species are ongoing and include measures to be taken to address the threats and monitor the recovery of the species. Critical habitat protection is important for ensuring the protection of the habitat necessary for the survival and recovery of the Hotwater Physa.
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 Hotwater Physa and results in the critical habitat of the Hotwater Physa being legally protected.
The critical habitat for the Hotwater Physa has been identified in the Action Plan as their entire area of occupancy within the Liard River Hot Springs Provincial Park, including riparian areas of 30 m width. 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 Action Plan, and results in the critical habitat of the Hotwater Physa identified in the Action Plan being legally protected.
The Order provides an additional tool that enables the MFO to ensure that the habitat of the Hotwater Physa 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 Hotwater Physa, 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 business.
The draft Action Plan identified critical habitat and specifically indicated that legal protection of critical habitat against destruction was anticipated and would be accomplished through 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. The draft Action Plan was developed in close collaboration with the Province of British Columbia’s Ministry of Environment and BC Parks.
The draft Action Plan underwent a 30-day targeted external review from October 20 to November 18, 2016. An information package that included the draft Action Plan, a link to Fisheries and Oceans Canada’s online species profile, and a comment form were emailed to three independent consultants, one mining company, and the Muskwa-Kechika Management Area Advisory Board (representing First Nations, industry, local government, and conservation groups, among others). Direct mail outs, faxes and emails with the information package were sent to 11 Indigenous organizations; these organizations were also offered in-person meetings. One set of comments was received, and it supported the need for further research on Hotwater Physa, but did not offer feedback on the identification of critical habitat or the use of an order to protect that critical habitat.
The proposed Action Plan was published in the Public Registry for a 60-day public comment period from May 10, 2017, to July 9, 2017. The proposed Action Plan 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 60-day public comment period. The final Action Plan was posted in the Public Registry on July 31, 2018.
Hotwater Physa’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 concerns were raised during the consultation period with respect to critical habitat, and opposition to the Order is not anticipated.
The recovery goal for the Hotwater Physa, as identified in the Recovery Strategy, is to maintain and protect the population(s) of Hotwater Physa within its natural geographic range and within its current variation of abundance at the Liard River Hot Springs complex. The identification and protection of critical habitat required to support this recovery goal is required under SARA. Efforts to achieve the recovery goal and objectives for the Hotwater Physa are ongoing and are supported through measures outlined in the Action Plan for the Hotwater Physa (Physella wrighti) in Canada. Progress to date includes continued population monitoring; research and improved understanding of Hotwater Physa habitat use and threats; and increased public awareness of the threats to Hotwater Physa, including human activities that can degrade water quality.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy or action plan on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 3 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) 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.
Threats to Hotwater Physa critical habitat are managed and will continue to be managed through existing mechanisms 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 Hotwater Physa and its habitat is to advise all proponents of works, undertakings or activities 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
- (1) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- (2) the activity benefits the species or is required to enhance its chance of survival in the wild; or
- (3) 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
- (a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
- (b) 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
- (c) the activity will not jeopardize the survival or recovery of the species.
If the above conditions cannot be met, proponents are advised to not 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 Hotwater Physa critical habitat or jeopardizing the 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 Hotwater Physa. 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 Hotwater Physa critical habitat becomes available at some point in the future, the Action Plan will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Action Plan 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 Hotwater Physa 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 works, undertakings or activities 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 Hotwater Physa 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