Critical Habitat of the Rainbow Smelt (Osmerus mordax) Lake Utopia Small-Bodied Population Order: SOR/2019-310

Canada Gazette, Part II, Volume 153, Number 18

Registration
SOR/2019-310 August 20, 2019

SPECIES AT RISK ACT

Whereas the Rainbow Smelt (Osmerus mordax) Lake Utopia small-bodied 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 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 Rainbow Smelt (Osmerus mordax) Lake Utopia Small-Bodied Population Order.

Ottawa, August 12, 2019

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Rainbow Smelt (Osmerus mordax) Lake Utopia Small-Bodied Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Rainbow Smelt (Osmerus mordax) Lake Utopia small-bodied population 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

Rainbow Smelt (Osmerus mordax) can be found in both fresh and salt water along the North American coast. In southwestern New Brunswick, Rainbow Smelt found in Lake Utopia and its tributaries consist of two co-existing morphologically, ecologically, and genetically differentiated (sympatric) populations: Lake Utopia Rainbow Smelt Small-bodied Population and Lake Utopia Rainbow Smelt Large-bodied Population (hereafter referred to as LURS-SbP and LURS-LbP, respectively). This sympatric species pair is only found in Lake Utopia and its tributaries in the Magaguadavic River watershed in New Brunswick. In April 1998, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed LURS-SbP, previously known as “Lake Utopia Dwarf Smelt,” and classified the species as threatened. In May 2000, COSEWIC re-examined and confirmed the threatened designation. In June 2003, upon the coming into force of the Species at Risk Act (SARA), footnote 1 LURS-SbP was listed as threatened footnote 2 in Part 3 of Schedule 1 to SARA. In November 2008, when the threatened status of LURS-SbP was again re-examined by COSEWIC, the assessment included LURS-SbP and LURS-LbP, both of which were assessed as threatened. Both populations were subsequently re-assessed by COSEWIC as endangered in November 2018. footnote 3

When a wildlife species is listed as 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. The critical habitat of LURS-SbP was identified in the Recovery Strategy for Lake Utopia Rainbow Smelt (Osmerus mordax), Small-bodied Population (sympatric with the Large-bodied Population), in Canada (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 LURS-SbP 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 Rainbow Smelt (Osmerus mordax) Lake Utopia Small-Bodied 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 Minister of Fisheries and Oceans the tools needed to ensure that the critical habitat of LURS-SbP is legally protected and enhances the protection already afforded to LURS-SbP 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.

LURS-SbP is limited in occurrence and distribution to Lake Utopia and its tributaries in the Magaguadavic River watershed, southwest New Brunswick. LURS-SbP use three tributaries at the north end of Lake Utopia for spawning (Second Brook, Unnamed Brook, and Smelt Brook), and carry out all other life processes in Lake Utopia itself. LURS-LbP, as LURS-SbP’s sympatric counterpart, plays an essential role in the survival of LURS-SbP. The removal of one sympatric counterpart is expected to influence the survival of the other member, whether through a change in population size, and/or through a shift in the distribution of physical and ecological traits. The fundamental interdependence of LURS-SbP and LURS-LbP indicates that the persistence of LURS-LbP in abundances sufficient to maintain the sympatric dynamic between the two populations is an important feature of LURS-SbP critical habitat and has been identified as such in the Recovery Strategy.

Works, undertakings or activities likely to destroy any part of the critical habitat of LURS-SbP are already subject to other federal regulatory mechanisms. The Fisheries Act protects all fish and fish habitat and provides protection against the harmful alteration, disruption or destruction of fish habitat, therefore contributing to the protection of the critical habitat of LURS-SbP.

Objectives

The recovery goal for LURS-SbP, as set out in the Recovery Strategy, is to maintain the current population distribution and abundance of LURS-SbP and LURS-LbP and the genetic diversity of the sympatric species pair. Efforts to meet the recovery objectives are ongoing and will be supported by the measures described in the proposed Action Plan for LURS-SbP. Present threats to LURS-SbP, as identified in the Recovery Strategy, have been grouped under four main categories of impact: impacts to habitat, impacts to water quantity, impacts to water quality, and direct mortality. Land alteration and recreational activities near LURS-SbP spawning habitat, water level fluctuations, the release of effluent into Lake Utopia, and predation of LURS-SbP by stocked, as well as invasive, fishes have had widespread impacts and are the most significant threats to LURS-SbP survival and recovery. In comparison to the other threats to LURS-SbP, direct mortality is considered a low-level concern. The threat of direct mortality to LURS-SbP from the directed recreational dip net smelt fishery has been effectively mitigated through the closure of this fishery in Lake Utopia in spring 2011.

Even though measurable progress has been made in achieving some of the recovery objectives, and performance measures presented in the Recovery Strategy, LURS-SbP will continue to remain vulnerable to a variety of threats given their naturally limited distribution, the potential for further development of the lake shore, and impacts from aquatic invasive predators. Critical habitat protection is an important component aimed at ensuring the survival or recovery of LURS-SbP.

Pursuant to subsections 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 LURS-SbP, and results in the critical habitat of LURS-SbP being legally protected.

Description

LURS-SbP uses Lake Utopia and some of its tributaries to support all its life functions. This existing habitat is currently sufficient to support both LURS-SbP and LURS-LbP. The critical habitat for LURS-SbP has been identified in the Recovery Strategy as Lake Utopia in the Magaguadavic River watershed in Charlotte County, New Brunswick, and part of the following tributaries of Lake Utopia: Smelt Brook, Unnamed Brook, and Second Brook. 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 LURS-SbP identified in the Recovery Strategy being legally protected.

The Order provides an additional tool that enables the MFO to ensure that the habitat of LURS-SbP 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 regulatory costs to be offset with equal reductions in regulatory costs. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes regulatory costs on business.

The “One-for-One” Rule requirement does not apply to this Order, as there are no anticipated additional regulatory costs imposed on businesses. The Order will be implemented under existing processes.

Small business lens

The objective of the small business lens is to consider, and to the extent possible, reduce the regulatory costs for small businesses without compromising the health, safety, security and environment of Canadians.

The small business lens was considered, and it was determined that this Order does not impose any compliance or regulatory costs on small businesses.

Consultation

To the extent possible, the LURS-SbP Recovery Strategy, which identified critical habitat, was prepared in cooperation with the Province of New Brunswick as per subsection 39(1) of SARA. The Recovery Strategy was also developed in cooperation and consultation with a broad range of groups including: Indigenous organizations in New Brunswick (e.g. New Brunswick Aboriginal Peoples Council); industry (e.g. J.D. Irving and Cooke Aquaculture); academia (e.g. Dalhousie University and University of New Brunswick); and environmental non-governmental organizations (e.g. Lake Utopia Preservation Association and Eastern Charlotte Waterways).

A draft version of the Recovery Strategy was prepared and distributed for targeted consultation by email or direct mail-outs in April 2013 for a six-week comment period to the Province of New Brunswick, Indigenous groups, and other interested parties, including non-governmental organizations, a municipality, academia, and industry. Consultations on the draft Recovery Strategy included the identification of critical habitat and indicated that it was anticipated that the critical habitat would be legally protected through a critical habitat order within 180 days of the final publication of the Recovery Strategy. Comments received during this targeted consultation period were incorporated into the proposed version of the Recovery Strategy; none of the respondents disputed the making of a critical habitat order.

The proposed Recovery Strategy was published in the Public Registry for a 60-day public comment period from June 9 to August 8, 2016. The proposed Recovery Strategy included the identification of critical habitat and its anticipated legal protection through a SARA critical habitat order made under subsections 58(4) and (5), which will invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat. In advance of publication of the proposed Recovery Strategy to the Public Registry, email notifications were sent to 5 New Brunswick provincial departments, approximately 12 stakeholders, and 18 Indigenous groups. No comments were received from any of the groups who received the advance notification nor from the general public on the proposed version of the Recovery Strategy or on the anticipated protection of critical habitat via an order. The final Recovery Strategy was posted in the Public Registry on October 26, 2016.

LURS-SbP 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.

Overall, given the many successful activities already underway to promote LURS-SbP recovery, engagement with stakeholder groups, and consultation outcomes to date on the recovery documents, opposition to the Order is not anticipated.

Rationale

The genetic objective, as identified in the Recovery Strategy, will be specifically addressed through maintaining the genetic diversity and genetic differentiation of the LURS-SbP and LURS-LbP. The short-term interim abundance objective for LURS-SbP is to maintain 100 000 spawning fish distributed among Second Brook, Unnamed Brook, and Smelt Brook during nights of peak spawning. The distribution objective for LURS-SbP includes the occupation of Lake Utopia year round and annual, synchronous occupation of Second Brook, Unnamed Brook, and Smelt Brook for spawning, with no individual stream to be unoccupied for two consecutive years. Threats to critical habitat, such as habitat degradation, must still be reduced and further research and monitoring must be conducted to ensure that all population objectives for LURS-SbP are achieved.

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) 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.

Threats to LURS-SbP critical habitat are managed and will continue to be managed through existing measures under federal legislation. No additional requirements are therefore imposed upon stakeholders or Indigenous groups as a result of the coming into force of this Order.

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 LURS-SbP and its habitat is to advise all proponents of works, undertakings or activities 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

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 these conditions cannot be met, the activity is not authorized and applicants may be advised to modify their works, undertakings or activities so as to enable these conditions to be met.

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 LURS-SbP 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 LURS-SbP. 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 LURS-SbP 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 LURS-SbP 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 34.4(2)(b) or 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 works, undertakings or activities 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 34.4 or 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 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 34.4(1), 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 LURS-SbP 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

Kate Ladell
Director
Operations
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca