Critical Habitat of the Barrens Willow (Salix jejuna) Order: SOR/2019-236
Canada Gazette, Part II, Volume 153, Number 14
SOR/2019-236 June 24, 2019
SPECIES AT RISK ACT
Whereas the Barrens Willow (Salix jejuna) 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;
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;
And whereas the Minister of the Environment is of the opinion that the annexed Order would affect land that is under the authority of the Minister of Fisheries and Oceans and, pursuant to subsection 58(9) of that Act, has consulted with that Minister with respect to the Order;
Therefore, the Minister of the Environment, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Barrens Willow (Salix jejuna) Order.
Gatineau, June 19, 2019
Minister of the Environment
Critical Habitat of the Barrens Willow (Salix jejuna) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Barrens Willow (Salix jejuna), 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.)
Loss of habitat is one of the greatest threats to biodiversity and species persistence in the world today. footnote 1 Protecting the habitat of species at risk is therefore key to their conservation, and to the preservation of biodiversity.
The Barrens Willow (Salix jejuna) is a low-lying deciduous shrub found only on the limestone barrens on the northwestern part of the Great Northern Peninsula of Newfoundland. footnote 2 The main threats to the Barrens Willow are loss and degradation of habitat due to human activities. This species was listed as endangered in 2003 under the Species at Risk Act (SARA).
As required by SARA, a final recovery strategy for the Barrens Willow was posted on the Species at Risk (SAR) Public Registry on October 25, 2006. The recovery strategy identified habitat that is necessary for the survival or recovery of the species (also known as critical habitat), some of which occurs on federal land on the northwestern tip of the island of Newfoundland. When, in a final posted recovery strategy, all of a species’ critical habitat or portions of that critical habitat have been identified on federal lands, footnote 3 SARA requires that it be protected within 180 days. The Department of the Environment has determined that portions of the critical habitat of the Barrens Willow located on federal land are not protected under SARA or another Act of Parliament, and that a ministerial order pursuant to section 58 of SARA is required.
Canada’s natural heritage is an integral part of its identity and history. In 1992, Canada signed and ratified the Convention on Biological Diversity (the Convention). The Convention is an international legal agreement between governments that was established to help ensure that biological diversity is conserved and used sustainably. The text of the Convention notes that the conservation of ecosystems and habitats is a “fundamental requirement for the conservation of biological diversity.”
As a party to this Convention, Canada has developed a national strategy for the conservation of biological diversity, and federal legislation to protect species at risk, Canada’s Species at Risk Act. The purposes of SARA are to prevent wildlife species from being extirpated from Canada or becoming extinct; to provide for recovery of wildlife species that are listed as 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. footnote 4 Consistent with the Convention, SARA recognizes that the habitat of species at risk is key to their conservation, and includes provisions that enable the protection of this habitat.
Habitat Protection under SARA
Once a species has been listed under SARA as endangered, threatened or extirpated, the competent federal minister(s) footnote 5 must prepare a recovery strategy. Recovery strategies must contain information such as a description of the species, threats to species survival and, to the extent possible, the identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival). Recovery strategies are posted on the SAR Public Registry.
When, in a final posted recovery strategy or action plan, critical habitat or portions of critical habitat have been identified on federal lands, in the exclusive economic zone of Canada or on the continental shelf of Canada, SARA requires that it be protected within 180 days of the date of posting on the SAR Public Registry.
If critical habitat is located in a migratory bird sanctuary under the Migratory Birds Convention Act, 1994, in a national park described in Schedule 1 of the Canada National Parks Act, in the Rouge National Urban Park established by the Rouge National Urban Park Act, in a marine protected area under the Oceans Act or in a national wildlife area under the Canada Wildlife Act, the competent minister must publish a description of that critical habitat in the Canada Gazette within 90 days of the date that critical habitat was identified in a final recovery strategy or action plan. Ninety days after this description of critical habitat is published in the Canada Gazette, the critical habitat protection under subsection 58(1) of SARA (i.e. prohibiting the destruction of critical habitat) comes into effect automatically, and critical habitat located in the federal protected area is legally protected under SARA.
If critical habitat or any portion of that habitat is found on federal lands other than a federal protected area listed in the previous paragraph, the competent minister must, under subsection 58(5) of SARA, either make a ministerial order to apply subsection 58(1) of SARA, prohibiting the destruction of this critical habitat, within 180 days following the identification of this habitat in a final posted recovery strategy or action plan, or publish on the SAR Public Registry a statement explaining how the critical habitat or portions of it are legally protected under SARA or another Act of Parliament.
Following the development of a recovery strategy, the Act requires the development of one or more action plans for the species. Action plans summarize the projects and activities required to meet recovery strategy objectives and goals. They include information on habitat, details of protection measures, and evaluation of socio-economic costs and benefits.
Permits issued under SARA
A person intending to engage in an activity affecting a listed species, any part of its critical habitat or the residences of its individuals that is prohibited under SARA may apply to the competent minister for a permit under section 73 of the Act. A permit may be issued if the competent minister is of the opinion that the activity meets one of three purposes:
- (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or
- (c) affecting the species is incidental to the carrying out of the activity. footnote 6
The permit may only be issued if the competent minister is of the opinion that the following three preconditions are met:
- (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 or its critical habitat or the residences of its individuals; and
- (c) the activity will not jeopardize the survival or recovery of the species.
Section 74 of SARA allows for a competent minister to issue permits under another Act of Parliament (e.g. the Canada National Parks Act) to engage in an activity that affects a listed wildlife species, any part of its critical habitat or the residences of its individuals, and have the same effect as those issued under subsection 73(1) of SARA, if certain conditions are met. This is meant to reduce the need for multiple authorizations.
The Barrens Willow was listed as endangered under the Newfoundland and Labrador Endangered Species Act in 2002 and benefits from protections under this piece of legislation. The Minister of the Environment is the competent minister under SARA for the Barrens Willow. The species was listed as endangered on Schedule 1 of SARA in 2003.
The general prohibitions under section 32 (for individuals) apply automatically on federal lands in the provinces for terrestrial species listed as extirpated, endangered or threatened. As such, it is prohibited to kill, harm, harass, capture or take an individual Barrens Willow, and to possess, collect, buy, sell or trade an individual Barrens Willow, or any part or derivative of the plant.
A final recovery strategy for the Barrens Willow was completed and posted on the SAR Public Registry on October 25, 2006. The recovery strategy partially identified critical habitat of the species and outlined a schedule of studies needed to complete the identification of critical habitat. A recovery strategy may be amended, as described in section 45 of SARA, if additional scientific information becomes available.
In June 2018, the recovery strategy for the Barrens Willow was amended. These amendments provided updated critical habitat information and improved maps of Barrens Willow critical habitat and are consistent with the information presented in the final action plan (2018). The amended recovery strategy for the Barrens Willow was posted on the SAR Public Registry on June 20, 2018.
A final action plan for the Barrens Willow was posted on the SAR Public Registry on June 20, 2018. This action plan identifies recovery measures required to meet the population and distribution objective of securing the long-term persistence of the natural population throughout its range. Through the development and posting of this action plan, the competent minister consulted and cooperated with others (including Aboriginal organizations and stakeholders) on both the action plan and the amendments to the recovery strategy.
Barrens Willow critical habitat on federal land
The Barrens Willow is located within the Strait of Belle Isle ecoregion along the north coastal section of the Great Northern Peninsula of Newfoundland. Portions of the critical habitat identified in the Barrens Willow recovery strategy occur on one federal property located at Cape Norman. This property is owned by the Department of Fisheries and Oceans and is managed by the Canadian Coast Guard for the purpose of operating a lighthouse.
The Department of the Environment has determined that portions of the critical habitat of the Barrens Willow located on Cape Norman are not protected under SARA or another Act of Parliament. As such, a ministerial order pursuant to section 58 of SARA is required.
The objective of the Critical Habitat of the Barrens Willow (Salix jejuna) Order (the Order) is to support the survival and recovery of the Barrens Willow through the legal protection of its critical habitat on federal land.
The Order will apply the prohibition against the destruction of critical habitat set out in subsection 58(1) of SARA to the critical habitat of the Barrens Willow on federal land. The Order will apply to one federal property located at Cape Norman, Newfoundland and Labrador.
Activities likely to destroy critical habitat
The final recovery strategy for the Barrens Willow describes the types of activities that would be likely to result in the destruction of critical habitat. Examples of these activities include, but are not limited to, activities that
- remove substrate, vegetation and/or the organic layer, or deposit material that prevents the Barrens Willow from germinating, establishing, growing and/or reproducing, including limestone gravel excavation, quarrying, drilling, and road construction, or the development of recreational trails for eco-tourism purposes;
- compact substrate and damage substrate (e.g. limestone shattering) that affects normal root function, seedling recruitment, and natural hydrologic pattern, including the use of vehicles (e.g. all-terrain vehicle, dirt bike, heavy equipment or car) off of designated trails and roadways (even a single pass of a vehicle, especially when the substrate is wet), or the placement of temporary or permanent structures; or
- reduce the quality of habitat by removing, adding or covering substrate or damaging the plant community, including the laying out of fish nets or fishing equipment, collecting rocks or plants, picnicking in places other than designated locations, depositing of waste material, or introduction of non-native species to the limestone barrens.
Costs and benefits
It is expected that the Order, in combination with additional protection and recovery measures, will contribute to the recovery of the Barrens Willow. The Barrens Willow and its critical habitat provide various benefits to society, including recreational and aesthetic values, co-benefits for other species, and potential contributions to current and future research. This analysis did not reveal any incremental cost impacts on stakeholders and Indigenous peoples. The Government of Canada will incur minor costs related to compliance promotion and enforcement.
Benefits of the Order
This Order will support the overall recovery objective identified in the recovery strategy for the Barrens Willow by protecting the species’ critical habitat from destruction on federal land. As such, the benefits associated with the continued existence of the species cannot be attributed to the Order alone, but are associated with the successful recovery of the species. The benefits described below stem from protecting both the species and its critical habitat.
Canadians place value on Canada’s natural assets. Analysis revealed that the recovery of the Barrens Willow will be associated with maintaining and enhancing a variety of benefits for Canadians, including recreational and aesthetic values, ecotourism potential, co-benefits for other species and benefits from the Barrens Willow’s use in current and future research.
People derive recreational and aesthetic benefits from observing Barrens Willow. The species is unique and is found nowhere else in the world. It inhabits a globally rare habitat (i.e. the coastal limestone barrens) that has very distinctive climactic, geological and biological characteristics. The limestone barrens flora contributes to the ecotourism potential in the Great Northern Peninsula area. footnote 7
Preventing the extinction of a given species contributes to overall biodiversity, the maintenance of which is essential for healthy ecosystems, human health, prosperity and well-being. Barrens Willow may support other species that share its habitat. For example, its presence could contribute to the establishment and survival of other plants, as it is a pioneer species colonizing a habitat characterized by disturbance. footnote 8 Overall, the Order may benefit the larger ecological community as well as other species at risk (notably, Fernald’s Braya and Long’s Braya, small perennial plants). Approximately one third of rare vascular plants on the island of Newfoundland reside in ecoregions containing limestone barrens and some are endemic to these unique ecoregions. footnote 9
Protecting habitat for this species also contributes to our knowledge of northern flora and species of isolated origins. The Barrens Willow may serve as an indicator species footnote 10 for changes in landscape and climate patterns. footnote 11, footnote 12 Furthermore, society often places a value on retaining the option of possible future uses associated with a species. The option value of the Barrens Willow to Canadians stems from the preservation of its genetic information that may be used in future research.
Costs of the Order
The baseline scenario for the cost analysis includes activities ongoing on federal lands where Barrens Willow critical habitat may be found, and incorporates any likely changes over the next ten years (2019–2028) without the Order in place. An analytical period of ten years was selected as section 24 of SARA states that the Committee on the Status of Endangered Wildlife in Canada must reassess the status of the species every ten years.
Cape Norman, near Cook’s Harbour (population < 100), attracts tourists visiting the lighthouse, whale watching and visiting the L’Anse aux Meadows National Historic Site. The main activities that occur near the Barrens Willow critical habitat include lighthouse operations, the use of walking paths, and hydro line maintenance. There are no anticipated incremental costs to stakeholders related to these activities, since they are not expected to be affected by the Order.
On the property, the lighthouse footprint and parking lot are human-altered substrates that do not contain the biophysical attributes of Barrens Willow critical habitat. While no activities within this area are likely to destroy this species’ critical habitat, the individual plants are protected by the section 32 prohibitions. As such, prior to undertaking any activities that may impact individuals, it is already required to apply for a SARA permit. Additionally, parking is sufficient for the current and projected use of the property and pressure to expand the parking lot is not expected.
Barrens Willow critical habitat is found along walking paths and in small patches near the graveyard on the property as well as in other areas on the property. These locations are already subject to the section 32 general prohibitions under SARA and the Department of Fisheries and Oceans (DFO) has installed a number of signs on the property, including within the walking path area. These signs bring awareness of the species at risk to people using the property in an effort to avoid disturbing the rare plants or their habitat. No changes in these activities are expected due to the Order.
The Order is also unlikely to affect the hydro line and utility pole on the property. A SARA permit is already required prior to any utility pole maintenance on Cape Norman. Since the requirement for a SARA permit has been in place since 2003 (when SARA came into force) for activities that could affect the Barrens Willow, the anticipated impact on the power company associated with the Order is low.
Compliance promotion and enforcement
The federal government will incur some incremental costs related to compliance promotion activities. Any enforcement costs attributable to this Order are considered to be minimal. These costs include compliance verification and enforcement activities, including but not limited to operational costs, and take into consideration site visits to the remote location of the critical habitat.
Given the protection already in place due to SARA’s general prohibitions, the Order is not expected to result in significant benefits or costs. The Order is expected to contribute to the recovery of the Barrens Willow and is likely to provide some co-benefits for other species that share the critical habitat on the Cape Norman property. Minor costs to the Government of Canada will result from additional compliance promotion and enforcement activities. No incremental costs to non-government stakeholders and Indigenous peoples have been identified.
Section 5 of the Red Tape Reduction Act (the “One-for-One” Rule) does not apply, as the Order will not impose any new administrative burden on business.
Small business lens
The small business lens does not apply, as the Order will not impose any compliance or administrative costs on small businesses.
In 2006, prior to posting the proposed recovery strategy for the Barrens Willow, the Department engaged in consultations with five stakeholders. Six responses were received, all of which were supportive of the recovery strategy, recovery of the species and/or protection of the species’ critical habitat. No concerns were raised during these consultations. Following these pre-posting consultations, the proposed recovery strategy was posted on the SAR Public Registry for public comment on July 27, 2006. No comments were received. The final recovery strategy was posted on October 25, 2006.
Subsequently, the Department worked collaboratively in the development of the action plan for the Barrens Willow. This plan includes a schedule of studies, currently underway, to complete the critical habitat identification for this species. The proposed action plan for the Barrens Willow was posted on the SAR Public Registry on February 23, 2016, for a 60-day public comment period. One comment was received from a local stewardship group stating support for the action plan and the Department’s efforts to support the identification of additional critical habitat. The province was also supportive and the final action plan was posted on June 20, 2018.
In June 2018, the federal addendum of the recovery strategy for the Barrens Willow was amended. These amendments provided updated information about the Barrens Willow critical habitat, including clarification of biophysical attributes and geographical location, detailed critical habitat maps and clarification of activities likely to result in the destruction of critical habitat. Additionally, the amendments are consistent with the information in the 2018 action plan. The province was supportive of the amendments and the final amended recovery strategy was posted on June 20, 2018.
Since the species was listed under SARA, the Department has worked collaboratively with the Department of Fisheries and Oceans (DFO) and the Newfoundland and Labrador Department of Environment and Conservation (NL DEC) in the development of recovery and protection measures for the Barrens Willow and the Cape Norman property. In June 2016, the Department sent letters to inform the Regional Director General of the Maritimes Region of DFO and Director of Wildlife of the NL DEC that the Minister of the Environment would be moving forward with the Order. Recipients were invited to provide comments. No concerns were raised.
The Barrens Willow is listed as an endangered species under SARA. The species is restricted to a rare habitat type within an ecologically and geologically unique region. Portions of the species’ critical habitat on one federal property are currently unprotected. SARA section 58 obliges the competent minister to put in place protection for critical habitat of endangered species on federal lands where protection is not in place. The Order will support the survival and recovery of the Barrens Willow through the protection of the critical habitat on federal land, consistent with the overall objectives of SARA and Canada’s biodiversity commitments under the Convention on Biological Diversity.
A strategic environmental assessment (SEA) was conducted for the Order. The SEA concluded that, although the benefits associated with the continued existence of the species cannot be attributed to the Order alone, the legal protection of the critical habitat for the Barrens Willow on federal land would have positive benefits for the species. The Order will also benefit other species that inhabit or visit the federal land and protect the limestone barrens habitat unique to this location.
The objective of the Order directly supports the following goal of the 2016–2019 Federal Sustainable Development Strategy (FSDS): “Healthy Wildlife Populations — All species have healthy and viable populations.” The Order supports the goal’s medium-term target, “By 2020, species that are secure remain secure, and populations of species at risk listed under federal law exhibit trends that are consistent with recovery strategies and management plans.” The objective of the Order supports the Canadian Biodiversity Strategy, which recognizes the importance of protecting the habitats of species at risk as a key component of conserving biological diversity. The protection of habitat by the Order will also contribute to the 2030 Agenda, particularly Sustainable Development Goal 15 — “Life on Land”.
In summary, the Order will contribute to the recovery of the Barrens Willow, although its contribution is likely to be limited given that the portion of critical habitat found on federal land is a small portion of the critical habitat of the species. The incremental costs of the Order include Government of Canada actions related to compliance promotion and enforcement, and no incremental costs to stakeholders or Indigenous Peoples were identified.
Implementation, enforcement and service standards
The implementation of the Order will provide protection and recourse against the destruction of the Barrens Willow critical habitat on federal land to which the Order applies.
The Department of the Environment will be responsible for issuing permits, compliance promotion and enforcement of the Order on federal land. The Department has developed a compliance promotion strategy outlining activities focused towards federal land managers.
The Department will continue to work with DFO to contribute to the conservation and protection of the Barrens Willow and its critical habitat. The action plan for the Barrens Willow provides information on other ongoing and future recovery measures to help achieve recovery for Barrens Willow. The Department will also continue to work with local habitat stewardship groups to help protect and bring awareness to species at risk in the unique limestone barrens habitat. footnote 13
SARA provides for penalties for contraventions to the Act, including fines or imprisonment and seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measures agreements may also be used to deal with an alleged offender under certain conditions. SARA also provides for inspections and search and seizure operations by enforcement officers designated under the Act. Under the penalty provisions of the Act, a corporation other than a non-profit corporation found guilty of an offence punishable on summary conviction 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. A corporation other than a non-profit corporation found guilty of an indictable offence is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.
The Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations, which came into effect on June 19, 2013, impose a 90-day timeline on the Government of Canada to either issue or refuse permits under section 73 of SARA to authorize activities that may affect listed wildlife species. The 90-day timeline may not apply in certain circumstances, such as a permit issued under another Act of Parliament (e.g. the Canada National Parks Act) as per section 74 of SARA. These regulations contribute to consistency, predictability and transparency in the SARA permitting process by providing applicants with clear and measurable service standards. The Department of the Environment measures its service performance annually and performance information is posted on the Department’s website no later than June 1st for the preceding fiscal year.
Mary Jane Roberts
SARA Policy and Regulatory Affairs
Canadian Wildlife Service
Environment and Climate Change Canada
Annex 1 — Description of the Barrens Willow
The Barrens Willow (Salix jejuna) is a low-lying deciduous shrub unique to Canada. Its range is restricted to a narrow stretch of coast along Newfoundland’s Great Northern Peninsula off the Strait of Belle Isle.
The Barrens Willow grows in exposed gravely and rocky limestone areas with little vegetation and a thin layer of low-nutrient soil. This species is a dwarf, woody shrub that forms small mats, and reaches 1 to 2 cm in height. The stems and branchlets are reddish-brown and hug the ground. Dense clusters of inconspicuous flowers called catkins grow just below the previous year’s shoots at the tip of the branchlets.