Critical Habitat of Atlantic Whitefish (Coregonus huntsmani) Order: SOR/2018-182

Canada Gazette, Part II, Volume 152, Number 19

Registration

September 7, 2018

SPECIES AT RISK ACT

Whereas the Atlantic Whitefish (Coregonus huntsmani) 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;

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 Atlantic Whitefish (Coregonus huntsmani) Order.

Ottawa, September 4, 2018

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of Atlantic Whitefish (Coregonus huntsmani) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Atlantic Whitefish (Coregonus huntsmani), 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 Atlantic Whitefish (Coregonus huntsmani) is a Canadian endemic fish species known historically to occur in two watersheds in southwestern Nova Scotia. Once anadromous, the species has continued to decline in abundance and distribution, and presently occurs as a single lake-resident population distributed amongst three small, interconnected, semi-natural lakes in the Petite Rivière watershed. In this last remaining refuge, its status continues to decline due to the presence of two highly piscivorous aquatic invasive species (smallmouth bass and chain pickerel). The Atlantic Whitefish was the first fish species in Canada and Nova Scotia’s first endemic fish to be classified as endangered by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) in 1984. This status was re-examined and reconfirmed by COSEWIC in both 2000 and 2010. In June 2003, upon the coming into force of the Species at Risk Act (SARA), footnote 1 the Atlantic Whitefish was listed as endangered footnote 2 in Part 2 of Schedule 1 to 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 (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. Critical habitat for the Atlantic Whitefish was not identified in the original 2007 Recovery Strategy for the Atlantic Whitefish (Coregonus huntsmani) in Canada (Recovery Strategy) but the document did include a schedule of studies to identify critical habitat. Critical habitat of the Atlantic Whitefish is identified in the Amended Recovery Strategy for the Atlantic Whitefish (Coregonus huntsmani) in Canada (2018) footnote 3 [Amended 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 Atlantic Whitefish 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 Atlantic Whitefish (Coregonus huntsmani) Order (the Order), under subsections 58(4) and 58(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 Atlantic Whitefish is legally protected and enhances the protection already afforded to the Atlantic Whitefish habitat under existing legislation 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.

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.

As the only founding representative of a unique lineage of whitefish in North America, the Atlantic Whitefish is a unique component of Canadian biodiversity and is recognized to be of considerable evolutionary significance. Although the specific habitat requirements of the Atlantic Whitefish are largely unknown, the species is known to complete its entire life cycle within three lakes in the upper watershed of the Petite Rivière (Hebb, Milipsigate and Minamkeak lakes). Therefore, the survival of the Atlantic Whitefish depends upon the completion of all its life cycle processes in these lakes. Additionally, the fish passage facility at the Hebb Lake Dam (the first dam at the base of the three lakes) is an important migration corridor for the species and is considered necessary for the survival and recovery of the Atlantic Whitefish.

The Report on the Progress of Recovery Strategy Implementation for the Atlantic Whitefish (Coregonus huntsmani) in Canada for the Period 2007-2012 (2016) documents the progress made towards the implementation of the 2007 Recovery Strategy for the Atlantic Whitefish in Canada over this reporting period. An Amended Recovery Strategy containing updates and new information including the identification of critical habitat was published in 2018. The identification and protection of the critical habitat required to support the recovery goal is a requirement under SARA. The Action Plan for the Atlantic Whitefish (Coregonus huntsmani) in Canada (Action Plan), which outlines all recovery measures required to achieve the Recovery Strategy goal and objectives, was also published in 2018.

Works, undertakings or activities (projects) likely to destroy any part of the critical habitat of the Atlantic Whitefish 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 Atlantic Whitefish.

Objectives

The recovery goal, as set out in both the 2007 and 2018 Recovery Strategy, has three components: achieve stability in the current population of Atlantic Whitefish in Nova Scotia; reestablish the anadromous form; and expand its current range. Efforts to meet the population and distribution objectives are ongoing and supported by the measures described in the Action Plan. Current threats to the Atlantic Whitefish, as identified in both the 2007 and 2018 Recovery Strategy, include barriers to fish passage, interactions with non-native fish species, and acidification from land-based activities. It also identifies other potential threats to the Atlantic Whitefish including incidental catch by anglers and commercial fishers, fluctuating water levels, entrainment of fish into water intakes, removal and mortality associated with scientific sampling, siltation, eutrophication, and habitat degradation by shoreline alteration or infilling. These other potential threats are considered a low-level concern in the Amended Recovery Strategy, as several mitigation measures for these threats are already in place.

Even though measurable progress has been made in achieving the goals, objectives and performance indicators presented in both the 2007 and 2018 Recovery Strategy, obtaining more information about the basic biology and ecology of the Atlantic Whitefish and its habitat requirements is important for implementing recovery measures that will further help achieve recovery goals. Critical habitat protection is important for ensuring the protection of this habitat necessary for the survival and recovery of the Atlantic Whitefish, especially because of the species’ extremely limited distribution.

Pursuant to subsection 58(4) and 58(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 Atlantic Whitefish, and results in the critical habitat of the Atlantic Whitefish being legally protected.

Description

Little is known about the preferred habitat of the Atlantic Whitefish, but sampling to date has shown that the species occurs throughout, and completes its entire life cycle within, the three interconnected lakes in the Petite Rivière watershed. The critical habitat for this species has been identified in the Amended Recovery Strategy as the entire water column and substrate features within the three lakes in the upper Petite Rivière and the waterways interconnecting these three lakes: Milipsigate Lake, Minamkeak Lake, and Hebb Lake, as well as the fish passage facility at Hebb Lake Dam which was built to provide passage into Hebb Lake of any Atlantic Whitefish individuals that may have descended over the dam. 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 Amended Recovery Strategy, and results in the critical habitat of the Atlantic Whitefish identified in the Amended Recovery Strategy being legally protected.

The Order provides an additional tool that enables the MFO to ensure that the habitat of the Atlantic Whitefish 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

“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 Amended Recovery Strategy was developed in collaboration with members of the Atlantic Whitefish Recovery Team. The Recovery Team included representatives from Fisheries and Oceans Canada, the provincial government of Nova Scotia, a municipal government, industry, environmental non-government organizations, and Indigenous organizations.

The Department continuously shared updates on progress of critical habitat identification during Recovery Team meetings. A focused presentation on critical habitat identification, including an overview of activities likely to destroy critical habitat and habitat protection mechanisms and options for protection under SARA, was provided at the October 2009 Recovery Team meeting. A bilateral meeting between Fisheries and Oceans and the Public Service Commission of the Town of Bridgewater was held in 2011 to review the draft critical habitat proposal and to discuss any potential concerns related to dam maintenance and upgrades; no issues were raised.

To gather comments on the draft Amended Recovery Strategy, letters and emails were sent in February 2013 for a 6-week comment period to the Recovery Team, relevant Nova Scotia Provincial Departments, Indigenous groups in Nova Scotia, and other stakeholders including environmental non-governmental organizations, industry, and municipal and federal governments; no oppositional comments were received.

There is no Atlantic Whitefish critical habitat on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act, and Indigenous communities do not practise any traditional activities within the bounds of the Atlantic Whitefish critical habitat. The critical habitat is not located on land governed by any wildlife management boards.

In 2016, the proposed Amended Recovery Strategy was posted in the Public Registry for a 60-day public comment period from June 9 to August 8, 2016. The proposed Amended Recovery Strategy indicated that it was anticipated that the critical habitat would be protected against destruction through a Critical Habitat Order made under subsections 58(4) and 58(5) of SARA. A single minor comment related to monitoring information was received during the public comment period. The final Amended Recovery Strategy was posted in the Public Registry on March 8, 2018.

Protecting the Atlantic Whitefish critical habitat via an Order resulted in a general positive response from the Recovery Team, as it will provide an added layer of protection to the upper Petite Rivière lakes which are already afforded provincial protection through their designation as a Watershed Protected Water Area.

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

Rationale

The interim population objective to support the recovery goal of the Amended Recovery Strategy is to achieve a minimum population size of greater than 1 275 mature individuals in the Petite Rivière watershed. The interim distribution objective is to establish self-sustaining anadromous populations in several watersheds in the Nova Scotia Southern Uplands ecoregion, including the Petite Rivière. However, the lack of information on the species’ abundance makes it difficult to assess the status of the species in relation to these objectives. Providing the conditions to ensure the survival of the existing population within the three lakes in the Petite Rivière watershed, facilitating anadromy on the Petite Rivière, and expanding the range of the Atlantic Whitefish are important components of recovery for this species.

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 MFO 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 Atlantic Whitefish 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 costs or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to the Atlantic Whitefish 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 Atlantic Whitefish 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 residence 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.

In addition, proponents of works and developments in areas where the Atlantic Whitefish is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of the Atlantic Whitefish (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 the Atlantic Whitefish 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 Atlantic Whitefish. 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 the Atlantic Whitefish critical habitat becomes available at some point in the future, 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 Atlantic Whitefish 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 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 must also be satisfied. This means that prior to issuing SARA-compliant Fisheries Act authorizations, the MFO must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted, that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals, and that the activity will not jeopardize the survival or recovery of the species.

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions 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 Atlantic Whitefish 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