Critical Habitat of the Coastrange Sculpin (Cottus aleuticus) Cultus Population Order: SOR/2019-3

Canada Gazette, Part II, Volume 153, Number 1

Registration

SOR/2019-3 December 19, 2018

SPECIES AT RISK ACT

Whereas the Coastrange Sculpin (Cottus aleuticus) Cultus population is a wildlife species that is listed as a threatened species in Part 3 of Schedule 1 to the Species at Risk Act footnote a;

Whereas the action plan that identified the critical habitat of that species has been included in the Species at Risk Public Registry;

And whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Coastrange Sculpin (Cottus aleuticus) Cultus Population Order.

Ottawa, December 14, 2018

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Coastrange Sculpin (Cottus aleuticus) Cultus Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Coastrange Sculpin (Cottus aleuticus) Cultus population, which is identified in the action plan for that species that is included in the Species at Risk Public Registry.

Coming into force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Coastrange Sculpin (Cottus aleuticus) Cultus population, hereafter referred to as the Cultus Pygmy Sculpin, footnote 1 is a small freshwater fish found only in Cultus Lake, a small lake located in the lower mainland region of southwestern British Columbia (BC). Available information on the abundance of Cultus Pygmy Sculpin is limited, but incidental catch data suggests a possible slight downward trend. In November 2000, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Cultus Pygmy Sculpin and classified the species as a threatened species. In June 2003, the Cultus Pygmy Sculpin was listed as threatened footnote 2 in Part 3 of Schedule 1 to the Species at Risk Act footnote 3 (SARA). In April 2010, COSEWIC re-examined and confirmed this assessment.

When a wildlife species is listed as an extirpated species, an endangered species or a threatened species in Schedule 1 of SARA, the 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. Critical habitat of the Cultus Pygmy Sculpin was identified in the Action Plan for the Cultus Pygmy Sculpin (Cottus aleuticus, Cultus Population) in Canada (2017) [the Action Plan].

As the competent minister under SARA with respect to aquatic species other than individuals in or on federal lands administered by the Parks Canada Agency, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitat of the Cultus Pygmy Sculpin 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 Coastrange Sculpin (Cottus aleuticus) Cultus Population Order (the Order), under subsections 58(4) and (5) of SARA, which triggers the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order affords the MFO the tool needed to ensure that the critical habitat of the Cultus Pygmy Sculpin is legally protected and enhances the protection already afforded to the Cultus Pygmy Sculpin 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.

Little is known about the basic biology and life history needs of the Cultus Pygmy Sculpin. The Cultus Pygmy Sculpin shares many physical features of the Coastrange Sculpin (Cottus aleuticus) and of sculpins in general, but there are also important differences in morphology and ecology, most importantly small body size, retention of larval features, and a limnetic (offshore) existence. Cultus Pygmy Sculpin are thought to occur in offshore habitats of Cultus Lake for most of their life cycle. The species likely lay egg masses on the underside of rocks, which are then guarded by a male until eggs hatch and juveniles leave the nest. Nests represent a discrete dwelling place and are considered residences during the spawning and guarding period, when eggs are incubating, and when juveniles still reside within the nest.

Works, undertakings or activities (projects) likely to destroy any part of the critical habitat of the Cultus Pygmy Sculpin 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 Cultus Pygmy Sculpin.

Objectives

The recovery goal, as set out in the Recovery Strategy for Cultus Pygmy Sculpin (Cottus sp.) in Canada (2007) [the Recovery Strategy] is to ensure the long-term viability of the Cultus Pygmy Sculpin population in the wild. Efforts to meet the recovery goal for Cultus Pygmy Sculpin are ongoing and supported by the measures described in the Action Plan. Current threats to the Cultus Pygmy Sculpin, as identified in the Recovery Strategy, include invasive (exotic) species, altered predation rates, water use, water quality, water-oriented recreation, land use, and climate change. Given its limited distribution, habitat quality decline and establishment of aquatic invasive species are the most significant threats to the survival and recovery of the Cultus Pygmy Sculpin. Cultus Lake drains into the lower Fraser River area where many invasive species are already well established and introduction of invasive vertebrate species in Cultus Lake could significantly increase competition with, or predation on, various life stages of the Cultus Pygmy Sculpin. The Cultus Lake area is also subject to sustained and rapid development and urbanization. Water quality degradation due to eutrophication from point and non-point source nutrient inputs, and some land-use activities have the capacity to negatively affect Cultus Pygmy Sculpin.

Even though measurable progress has been made in achieving the goals, objectives and performance measures presented in the Recovery Strategy, little is still known about Cultus Pygmy Sculpin. Developing a better understanding of habitat use by different life stages and population abundance is important for setting recovery targets and implementing recovery measures. Critical habitat protection is an important component aimed at ensuring the survival or recovery of the Cultus Pygmy Sculpin.

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 Cultus Pygmy Sculpin, and results in the critical habitat of the Cultus Pygmy Sculpin being legally protected.

Description

The preferred habitat of the Cultus Pygmy Sculpin is considered to be the deep offshore waters of Cultus Lake. The species has not yet been found in the shallower littoral (nearshore) areas of the lake; however, the functioning of the offshore water is connected with littoral zone processes, thus it was considered inseparable in determining the geographic extent of the critical habitat. The critical habitat for this species has been identified in the Action Plan as the whole of Cultus Lake up to its wetted boundary.footnote 4 The Order triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical features and attributes identified in the Action Plan, and results in the critical habitat of the Cultus Pygmy Sculpin identified in the Action Plan being legally protected.

The Order provides an additional tool that enables the MFO to ensure that the habitat of the Cultus Pygmy Sculpin 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

In February 2011, two workshops were held at the University of British Columbia and in the community of Cultus Lake, British Columbia, to seek input for the Action Plan and to help identify the critical habitat. Participants in the workshops included stewardship groups, scientific and technical experts from academia, and species experts from British Columbia’s Ministry of Environment and BC Parks. To the extent possible, the draft Action Plan was developed in cooperation with the Province of British Columbia, as per section 48(1) of SARA.

The draft Action Plan, which included the identification of critical habitat and its anticipated legal protection through the application of subsection 58(1) of SARA or its equivalent, was posted on the Department of Fisheries and Oceans (DFO) Pacific Region Consultation website for a 30-day public comment period from November 15 to December 17, 2012. To gather input on the draft Action Plan, notifications were sent to First Nation organizations, private landowners, agricultural associations, industry, academia, non-government environmental organizations, community stewardship groups, and government representatives. Several comments were received, none from First Nations. No comments concerned critical habitat or its protection.

Input on the draft Action Plan was also solicited during a community open house in Cultus Lake on November 24, 2012. Notifications were sent to First Nations, environmental interest groups, private land owners and stakeholders, including regional and provincial governments, recreational groups, stewardship organizations, industry and academia. The participants of the open house and the majority of submitted comments were predominantly positive and in support of the identified critical habitat and its anticipated legal protection mechanism via an Order. Key changes to the Action Plan resulting from consultations included further clarification of the species’ habitat use, as well as new information which supported modifying the identification of critical habitat.

Cultus Pygmy Sculpin’s critical habitat does not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act. The critical habitat is not located on land managed by any wildlife management boards.

The proposed Action Plan was posted in the Public Registry for a 60-day public comment period from August 18, 2016, to October 17, 2016. The proposed Action Plan indicated that critical habitat would be legally protected through an Order made under subsections 58(4) and 58(5) of SARA, which will prohibit the destruction of the identified critical habitat. Only one minor comment was received, and no oppositional comments were received regarding proposed critical habitat area identification or the proposed use of an Order. The final Action Plan was posted in the Public Registry on April 12, 2017, with no significant edits.

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

Rationale

The recovery objectives, as outlined in the Recovery Strategy, are to foster active local involvement in stewardship and habitat protection, maintain or enhance the ecological integrity of Cultus Pygmy Sculpin habitat, and increase scientific understanding of Cultus Pygmy Sculpin through additional investigation of its natural history, critical habitat and threats to its persistence. Progress has been made towards the recovery objectives outlined in the Recovery Strategy, and includes the establishment of local stewardship initiatives and increased understanding of life history, habitat use and threats.

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 SARAfootnote 5 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 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 Cultus Pygmy Sculpin 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 Cultus Pygmy Sculpin 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 Cultus Pygmy Sculpin 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 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 the Cultus Pygmy Sculpin 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 Cultus Pygmy Sculpin. 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 Cultus Pygmy Sculpin critical habitat becomes available, the Action Plan will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Action Plan published in the Public Registry. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Cultus Pygmy Sculpin 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 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 preconditions 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 Cultus Pygmy Sculpin 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