Critical Habitat of the Spring Cisco (Coregonus sp.) Order: SOR/2018-158

Canada Gazette, Part II, Volume 152, Number 15

Registration

July 6, 2018

SPECIES AT RISK ACT

Whereas the Spring Cisco (Coregonus sp.) 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 Spring Cisco (Coregonus sp.) Order.

Ottawa, July 3, 2018

Dominic LeBlanc
Minister of Fisheries and Oceans

Critical Habitat of the Spring Cisco (Coregonus sp.) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Spring Cisco (Coregonus sp.), 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.)

Issues

The Spring Cisco (Coregonus sp.), a species present in just one lake in southwestern Quebec — Lac des Écorces, near Mont-Laurier — has shown a rapid decline in population over the past 15 years (3 generations). In April 2009, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Spring Cisco and classified the species as an endangered species. footnote 1 In March 2013, the Spring Cisco was listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA).

When a species has been listed as extirpated, endangered or threatened under SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Species at Risk Public Registry (the Public Registry). The critical habitat of the Spring Cisco was identified in the Recovery Strategy for the Spring Cisco (Coregonus sp.), footnote 3 published in February 2014 (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 (the Minister) is required to ensure that the critical habitat of the Spring Cisco 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 Spring Cisco (Coregonus sp.) 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 an additional tool to protect the habitat of the Spring Cisco and enhances the ability of the Minister to ensure that this habitat is protected against destruction to support efforts towards the recovery of the species.

Background

The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, 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 Spring Cisco is a small silver-sided fish with a back that varies from blue-green to black in colour. It is found only in Lac des Écorces in Quebec. The Spring Cisco spawns in the springtime, unlike other cisco species, which spawn in the fall. Given the small number of specimens caught, it is difficult to draw satisfactory conclusions on population size and trends. Nonetheless, between 1994 and 2008, trends were observed that seemed to indicate a significant decline in population.

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Spring Cisco 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 Spring Cisco.

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.

Objectives

The recovery goal, as set out in the Recovery Strategy, is to improve the status of the Spring Cisco and increase the species’ abundance. Efforts to meet the population and distribution objectives are ongoing and supported by the measures described in the Recovery Strategy. Current threats to the Spring Cisco, as identified in the Recovery Strategy, include new residential areas (principal and secondary residences) that have gradually been built along the banks of Lac des Écorces. The water quality, and therefore the quality of the Spring Cisco’s habitat, has deteriorated. Additionally, many fish species have been introduced to the lake to encourage recreational fishing. The recent colonization of the lake by the Rainbow Smelt (Osmerus mordax), noted in 1999, seems to have become the main threat to the Spring Cisco’s recovery, since the Rainbow Smelt is a predator and competes with ciscos.

The introduction of Rainbow Smelt hinders cisco recruitment quality and growth. In addition, Lac des Écorces has undergone a number of changes in recent decades that have led to wastewater discharge and agricultural runoff, which contribute to eutrophication and decreased water quality. Some progress has been made in attempts to protect water quality in the lake (mainly through awareness-raising among the area’s residents). However, predation by and competition from the Rainbow Smelt must still be reduced, and further research must be conducted in order to monitor the Spring Cisco population to ensure that population and distribution objectives are achieved.

Pursuant to subsection 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 Spring Cisco.

Description

Although the Spring Cisco appears to prefer cold and well-oxygenated waters, it may be present in all areas of Lac des Écorces. The critical habitat for this species has been identified in the Recovery Strategy as the entirety of Lac des Écorces. 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 Spring Cisco identified in the Recovery Strategy being legally protected.

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

“One-for-One” Rule

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.

Consultation

The Spring Cisco Recovery Strategy was developed in conjunction with provincial government representatives (ministère des Forêts, de la Faune et des Parcs [MFFP]), the Comité du bassin versant de la rivière du Lièvre (COBALI) [Lièvre River watershed committee], local municipalities and the Regional County Municipality of Antoine-Labelle.

A consultation notice was sent to a number of organizations (including the ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques [MDDELCC], the MFFP and the ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec [MAPAQ]) and to the Kitigan Zibi Aboriginal community, inviting them to present their comments on the proposed version of the Recovery Strategy published in the Public Registry for a 60-day public comment period from October 25, 2013, to December 24, 2013. One organization (COBALI) commented on the proposed Spring Cisco Recovery Strategy.

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. All comments received in response to this consultation were aimed at improving the document; none of them had to do with critical habitat or its protection. These comments were included in the final version of the Recovery Strategy (February 13, 2014).

During the summer of 2014, an awareness-raising campaign was conducted with Lac des Écorces shoreline landowners to inform them of the issue, to encourage best practices, and to widen the riparian strip. COBALI also invited the Lac des Écorces shoreline landowners to attend an information session on September 4, 2014. Educational posters on the Spring Cisco were also placed along the banks of Lac des Écorces.

There is no Spring Cisco critical habitat on Indigenous reserve lands, and Indigenous communities do not practise any traditional activities within the bounds of the critical habitat. The critical habitat is not located on land governed by any wildlife management boards.

Overall, no significant concerns were raised during the consultation period with respect to the critical habitat, and opposition to the Order is not anticipated.

Rationale

A recovery target representing 40% of the average abundance index before the decline during the 1990s has been set. Based on this approach, which involves a precautionary approach and the surplus production model, the recovery target will be in the order of 5 individuals/hour/net, as the average abundance index prior to 1990 was 12 individuals/hour/net. The population and distribution objectives proposed in the Recovery Strategy may be updated as new information on the Spring Cisco and its habitat becomes available.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final Recovery Strategy on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA 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) and other provisions of SARA, failing which, the Minister must make an Order under subsections 58(4) and 58(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 Spring Cisco 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 the Spring Cisco’s 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 Spring Cisco 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 Minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed 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 Minister 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.

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

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 Spring Cisco 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 Spring Cisco. 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 Spring Cisco critical habitat becomes available at some point in the future, the Recovery Strategy 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 Spring Cisco 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 Minister for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

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

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

Any person planning on undertaking an activity within the critical habitat of the Spring Cisco 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.

Contact

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