Critical Habitat of the Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus) Order: SOR/2018-208

Canada Gazette, Part II, Volume 152, Number 22

Registration

October 12, 2018

SPECIES AT RISK ACT

Whereas the Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus) 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 Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus) Order.

Ottawa, October 11, 2018

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus), 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 orders.)

Issues

The Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus) and the Misty Lake Lotic Threespine Stickleback (Gasterosteus aculeatus) [hereafter referred to as the Misty Lake Sticklebacks] are freshwater fishes that are restricted to a single lake-stream complex on northern Vancouver Island, British Columbia. In November 2006, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Misty Lake Sticklebacks and classified the species as endangered. In April 2012, the Misty Lake Sticklebacks were listed as endangered footnote 1 in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA).

When a wildlife species is listed as an extirpated species, an endangered species or a threatened species in Schedule 1 of SARA, the following prohibitions in sections 32 and 33 of SARA automatically apply:

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 (Public Registry). The recovery strategy or action plan must include an identification of the species’ critical habitat, to the extent possible, based on the best available information. The critical habitat of the Misty Lake Sticklebacks was identified in the Recovery Strategy for the Misty Lake Sticklebacks (Gasterosteus aculeatus) in Canada (2018) [the Recovery Strategy].

As the competent minister under SARA with respect to aquatic species, other than individuals in or on federal lands administered by the Parks Canada Agency, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitat of the Misty Lake Sticklebacks 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 Misty Lake Lentic Threespine Stickleback (Gasterosteus aculeatus) Order and the Critical Habitat of the Misty Lake Lotic Threespine Stickleback (Gasterosteus aculeatus) Order (the Orders), 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 Orders afford the MFO the tool needed to ensure that the critical habitat of the Misty Lake Sticklebacks is legally protected and enhance the protection already afforded to the Misty Lake Sticklebacks’ 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.

The entire range of the Misty Lake Sticklebacks is found within the Misty Lake watershed on Vancouver Island, where the species occur in the lake, outlet stream, and inlet stream habitats. The lotic form occupies the inlet stream while the lentic form occupies the lake and outlet stream. Although the Misty Lake Sticklebacks live adjacent to each other, they interbreed relatively little in the overlapping habitat and remain ecologically, morphologically and genetically distinct from each other. The lentic-lotic complex is of considerable scientific interest and value because of their unique and recent evolutionary history. Studies on the Misty Lake Sticklebacks have been ongoing.

Works, undertakings or activities (projects) likely to destroy any part of the critical habitat of the Misty Lake Sticklebacks 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 Misty Lake Sticklebacks.

Objectives

The population objective, as set out in the Recovery Strategy, of maintaining, or where possible, increasing abundance of each population (inlet, lake, and outlet) relative to the 2016 observed population sizes, is dependent on maintaining current habitat area and habitat quality. Maintaining habitat area and quality will also contribute to the distribution objective of maintaining current spatial distribution of each population (inlet, lake, and outlet) and maintaining the two distinct forms by preventing an increase in hybridization that could lead to the collapse of the species pair into a hybrid swarm. Efforts to meet the population and distribution objectives are ongoing and supported by the broad strategies and general approaches described in the Recovery Strategy.

Current threats to the Misty Lake Sticklebacks, as identified in the Recovery Strategy, include introduction/invasion and establishment of benthic fishes, crayfish, spiny-rayed fishes, bullfrogs or other aquatic invasive species; pollution from road run-off and rest stop; pollution and changes in water quality resulting from land use practices; non-conforming recreational use of Misty Lake Ecological Reserve; riparian vegetation removal related to utility and transport corridors and land use; water extraction; changes in precipitation, water flow, temperature, ice cover, timing, etc.; and unpermitted or excessive removal of individuals for scientific research. The introduction of aquatic invasive species is the most significant threat to the survival and recovery of the Misty Lake Sticklebacks, and the likelihood of such an event is high due to easy access from an existing highway rest stop at the southwest corner of the lake.

Critical habitat protection is important for ensuring the protection of the habitat necessary for the survival and recovery of the Misty Lake Sticklebacks.

Pursuant to subsection 58(4) and (5) of SARA, the Orders trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Misty Lake Sticklebacks and results in the critical habitat of the Misty Lake Sticklebacks being legally protected.

Description

The Misty Lake Sticklebacks are restricted to a single lake-stream complex on northern Vancouver Island, British Columbia. The Orders trigger 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 Misty Lake Sticklebacks identified in the Recovery Strategy being legally protected.

The Orders provide an additional tool that enables the MFO to ensure that the habitat of the Misty Lake Sticklebacks 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. These Orders serve 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 the Orders as there are no anticipated additional administrative costs on businesses. The Orders 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 the Orders, as there are no administrative burden costs on small businesses.

Consultation

In March 2011, a technical workshop was held to seek comments and input on the draft Recovery Strategy. Participants included scientific and technical experts from academia, the provincial government, a First Nation, and non-governmental organizations. The draft Recovery Strategy was posted to the Fisheries and Oceans Canada Pacific Regional Consultation website from March 21 to April 23, 2012. Electronic mail notifications were also sent to industry, academia, environmental non-government organizations, government representatives (municipal, regional, provincial and federal), and to the March 2011 technical workshop participants. Direct mail outs, faxes and emails were sent to five Indigenous organizations whose claimed traditional territories overlap with the Misty Lake watershed. They were also offered in-person meetings; no comments were received.

The draft Recovery Strategy indicated that legal protection of critical habitat was anticipated through the application of subsection 58(1) of SARA, or its equivalent, under another Act of Parliament, which prohibits the destruction of the identified critical habitat. Two sets of comments were received; no concerns were identified with respect to the establishment of critical habitat orders.

The proposed Recovery Strategy was developed considering the above stakeholder input and published in the Public Registry for a 60-day public comment period from September 8 to November 9, 2016. The proposed Recovery Strategy indicated that the critical habitat would be legally protected through critical habitat orders made under subsections 58(4) and (5) of SARA, which will trigger the prohibition in subsection 58(1) of SARA against the destruction of critical habitat. Following these consultations, one set of comments was received. No opposition was received regarding the proposed critical habitat areas identified or the proposed use of critical habitat orders. The final Recovery Strategy was posted in the Public Registry on April 17, 2018.

Misty Lake Sticklebacks’ 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. To the extent possible, the Recovery Strategy was prepared in cooperation with the Province of British Columbia as per subsection 39(1) of SARA.

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

Rationale

The population objective for the Misty Lake Sticklebacks is to maintain, or where possible, increase abundance of each population (inlet, lake, outlet) relative to the 2016 observed population sizes. The 2016 abundances are thought to be near historical levels and self-sustaining. The distribution objective for the Misty Lake Sticklebacks is to maintain the current spatial distribution of each population (inlet, lake, and outlet) and maintain the two distinct forms by preventing an increase in hybridization that could lead to the collapse of the species pair into a hybrid swarm. Population and distribution baseline studies have been completed and a schedule of studies is ongoing.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy in the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 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) of SARA and other provisions of SARA, failing which, the MFO must make an order under subsections 58(4) and (5) of SARA. This Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Projects likely to destroy the critical habitat of the Misty Lake Sticklebacks 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 Misty Lake Sticklebacks’ 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 face 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 Misty Lake Sticklebacks and their 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 wildlife 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

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 Misty Lake Sticklebacks’ critical habitat or jeopardizing the survival or recovery of these 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 Misty Lake Sticklebacks. 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 Misty Lake Sticklebacks’ critical habitat becomes available, the Recovery Strategy will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Misty Lake Sticklebacks 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 the 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 their 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 Misty Lake Sticklebacks 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