Order Amending the Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order: SOR/2020-171
Canada Gazette, Part II, Volume 154, Number 16
Registration
SOR/2020-171 July 24, 2020
SPECIES AT RISK ACT
Whereas the Nooksack dace (Rhinichthys cataractae ssp.) 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 Order Amending the Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order.
Ottawa, July 22, 2020
Bernadette Jordan
Minister of Fisheries and Oceans
Order Amending the Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order
Amendments
1 Section 2 of the Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order footnote 1 is repealed.
2 The schedule to the Order is repealed.
Coming into Force
3 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
As a result of recent changes to the critical habitat identified in the recovery strategy for the Nooksack Dace, section 1 and section 2 of the 2016 Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order (SOR/2016-82) [the 2016 Order] no longer provided the same information as to the critical habitat to which the Order applied. In addition, errors were identified in the critical habitat geographic coordinates included within the Schedule to the 2016 Order. An amendment to the 2016 Order was needed to rectify these issues.
Background
Critical habitat for the endangered Nooksack Dace, a small (under 15 cm) stream-dwelling minnow, is found within the Bertrand Creek, Brunette River, Fishtrap Creek, and Pepin Creek watersheds in southwestern British Columbia.
In 2016, the Minister of Fisheries, Oceans and the Canadian Coast Guard, as competent minister for aquatic species under the Species at Risk Act (SARA), footnote 2 made the Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order. This 2016 Order triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the Nooksack Dace critical habitat. It provides an additional tool to ensure that the critical habitat is legally protected against destruction, thereby enhancing the protections already afforded to the species’ habitat under existing legislation, such as subsection 35(1) of the Fisheries Act, which prohibits the harmful alteration, disruption, or destruction of fish habitat.
Section 1 of the 2016 Order stated, “Subsection 58(1) of [SARA] applies to the critical habitat of the Nooksack Dace … , which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry [the Public Registry].” Given that “recovery strategy” footnote 3 is defined in SARA as including any amendment to it, section 1 of the Order meant that the Order applied to the critical habitat identified in any amended recovery strategies that were included in the Public Registry.
Section 2 of the 2016 Order began, “For greater certainty, section 1 applies to that species’ critical habitat, which is located within … ” and continued by describing the critical habitat that was identified in the recovery strategy posted on the Public Registry at that time (dated June 9, 2008). Section 2 also added a schedule to the Order for detailed information on the identified critical habitat, including the geographic coordinates for the areas of critical habitat, which were not provided in the 2008 recovery strategy. These coordinates were added to the Order along with critical habitat descriptions and maps for further clarity and to facilitate compliance with the SARA.
On February 12, 2020, Fisheries and Oceans Canada (DFO) posted the final amended Recovery Strategy for the Nooksack Dace (Rhinichthys cataractae ssp.) in Canada, 2020 (the amended recovery strategy) to the Public Registry. Among the amendments are modifications to the Nooksack Dace critical habitat, including the removal of eight critical habitat reaches footnote 4 in the Brunette River watershed based on additional scientific information, and the addition of one reach in Bertrand Creek based on habitat restoration. Updates were also made to the critical habitat features and attributes to better inform the assessment of activities likely to destroy critical habitat and an updated methodology for critical habitat identification was provided. Latitude and longitude coordinates were also added to define the geographic areas of the critical habitat.
As a result of the posting of the amended recovery strategy with revised critical habitat identification, section 1 and section 2 of the 2016 Order provided contradicting information as to the critical habitat to which the Order applied. Section 1 of the 2016 Order implied the Order applied to the revised critical habitat in the amended recovery strategy, whereas section 2 indicated that the Order applied to the critical habitat described in that section as well as its referenced Schedule to the Order. This could have caused confusion for individuals and entities wishing to comply with the Order, in particular regarding the Bertrand Creek reach newly identified as critical habitat in the amended recovery strategy but not mentioned in the Order, and the eight Brunette River watershed reaches mentioned in the Order but no longer identified as critical habitat in the amended recovery strategy.
Objective
The objective of this regulatory amendment is to clarify the critical habitat to which the 2016 Order applies. It also addresses issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) regarding errors in the geographic coordinates for the areas of critical habitat identified in the 2016 Order.
Amending the 2016 Order ensures that the Critical Habitat Order (CHO) applies to the new Nooksack Dace critical habitat identified in the amended recovery strategy posted on the Public Registry on February 12, 2020, thereby ensuring that the obligations, under section 57 and subsections 58(4) and (5) of SARA, to legally protect critical habitat within 180 days of it being identified in the amended recovery strategy are met.
Description
The regulatory amendment repeals section 2 and the Schedule from the 2016 Order. The amended Order retains section 1, with the result being that the incorporation by reference of the critical habitat identified in the recovery strategy for the species is henceforth dynamic. That is, if new information becomes available to support changing the Nooksack Dace critical habitat in the future, the recovery strategy will be updated as appropriate (taking into account feedback from consultation) and the legal protection afforded by the Order will automatically apply to the revised critical habitat once included in a final amended recovery strategy posted on the Public Registry.
This “ambulatory” incorporation by reference approach to identifying the critical habitat to which a CHO applies is consistent with the approach taken for other recent CHOs for aquatic species.
Regulatory development
Consultation
Consultation on the changes to the Nooksack Dace critical habitat and DFO’s plan to amend the 2016 Order to ensure legal protection of the revised critical habitat occurred during the development of the 2020 amended recovery strategy for Nooksack Dace.
A draft amended recovery strategy underwent a 35-day targeted external review from December 4, 2017, to January 8, 2018. The draft included updated critical habitat and it specifically indicated that legal protection of critical habitat against destruction was accomplished on April 21, 2016, through a CHO made under subsections 58(4) and (5) of SARA. The draft also communicated that the 2016 Order would be amended to reflect changes in critical habitat identification outlined in the amended recovery strategy. A package that included the draft amended recovery strategy and a comment form was emailed to 72 stakeholders, including industry, species experts, governments (local, regional, provincial, federal), and non-governmental organizations. Emails, direct mail-outs, and/or faxes with the information package were sent to one wildlife management board and 26 Indigenous groups and Indigenous organizations with claimed traditional territories that overlap with, or are adjacent to, the Nooksack Dace range. In-person meetings were also offered.
One set of comments was received on behalf of both the Province of British Columbia (B.C.) and the B.C. Agriculture Council relating to potential impacts of critical habitat identification on agricultural activities and land owners. Their concerns were mostly related to the inclusion of “all riparian footnote 5 vegetation” to the riparian critical habitat and the potential impacts of critical habitat identification on land owners. DFO acknowledged these concerns and explained how the threshold for critical habitat destruction had not changed and that every activity would continue to be assessed on a case-by-case basis. No comments were received from the wildlife management board or from the Indigenous groups and Indigenous organizations. No concerns were identified with respect to amending the 2016 Order.
Following the consultations on the draft, the Recovery Strategy for the Nooksack Dace (Rhinichthys cataractae ssp.) in Canada, 2019 (proposed) was posted on the Public Registry on January 11, 2019, for a 60-day public comment period. Email notifications in advance of the public comment period were sent to one wildlife management board and 26 Indigenous groups and Indigenous organizations. The proposed amended recovery strategy included the updated critical habitat and noted that it was anticipated that the 2016 Order would be subsequently amended to reflect changes in critical habitat identification outlined in the proposed amended recovery strategy. One set of comments from the B.C. Ministry of Agriculture was received on the proposed amended recovery strategy relating to potential impacts of critical habitat identification on agricultural activities and private land, potential changes in land use due to critical habitat identification, and issues related to drainage maintenance. Most of these concerns related to critical habitat that was already protected under the 2016 Order. Comments were considered in the development of the final amended recovery strategy.
DFO engaged with the province of B.C. about the nature and implications of CHOs. The Province indicated support, provided an evaluation of socio-economic implications and consultation with directly affected parties are conducted prior to the making of a CHO. Consultation with implicated parties was completed during the development of the amended recovery strategy, as described above, and the socio-economic impacts were evaluated as low by DFO.
Modern treaty obligations and Indigenous engagement and consultation
Nooksack Dace 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.
An assessment of modern treaty implications concluded that amending the 2016 Order will likely not have an impact on the rights, interests, and/or self-government provisions of treaty partners.
Portions of the Nooksack Dace critical habitat are adjacent to the territory subject to the land claims agreement with the Tsawwassen First Nation. The Tsawwassen wildlife management board was included in the consultations undertaken during the development of the amended recovery strategy.
Refer to the consultations section above for more information on Indigenous engagement.
Instrument choice
To correct errors and potentially contradictory information in the 2016 Order, an amendment to the 2016 Order was chosen as the most appropriate regulatory instrument option. No other viable alternatives were identified. This amendment option was chosen over a repeal and replace option so the Order retains its original Statutory Orders and Regulations (SOR) identifier.
Regulatory analysis
Benefits and costs
The amendment to the 2016 Order is not expected to result in any additional costs beyond the negligible incremental cost assessment associated with the 2016 Order. Refer to the Regulatory Impact Analysis Statement published with the 2016 Order for more information on the 2016 cost-benefit analysis.
Small business lens
The small business lens was applied and it was determined that the amended Order does not impose any regulatory costs on small businesses.
One-for-one rule
The one-for-one rule does not apply to the amended Order, as there are no anticipated additional administrative burden costs imposed on businesses. The amended Order will be implemented under existing processes.
Regulatory cooperation and alignment
SARA is a key tool for the conservation and protection of Canada’s biological diversity and fulfills a commitment made under the United Nations Convention on Biological Diversity. As such, the amended Order will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan to identify the potential for important environmental effects was conducted. It was concluded that a strategic environmental assessment was not required because amending the CHO is not expected to have an important environmental effect, given that the vast majority of the species’ critical habitat is already protected under the 2016 Order and considering the complementary federal regulatory mechanisms already in place for protecting fish habitat.
However, it is expected that when all planned Nooksack Dace recovery activities and legal protections are considered together, these will have a positive environmental impact and contribute to the achievement of the Federal Sustainable Development Strategy goal of healthy wildlife populations.
Gender-based analysis plus
A preliminary consideration of gender-based analysis plus (GBA+) factors did not reveal potential differences in impact on groups or subgroups of individuals.
Implementation, compliance and enforcement, and service standards
Implementation
Threats to critical habitat are managed and will continue to be managed through existing measures under federal legislation.
In cases where it is not possible to avoid the destruction of a part of the critical habitat of the Nooksack Dace, the proponents of the works, undertakings or activities may apply to the Minister of Fisheries, Oceans and the Canadian Coast Guard for a permit under section 73 of SARA, or an authorization under paragraphs 34.4(2)(b) and 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.
Under section 73 of SARA, the Minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals, provided that the requirements of subsections 73(2) to (6.1) of SARA are met. After it is entered into or issued, the Minister must comply with the requirements of subsection 73(7).
DFO provides a single window for proponents to apply for an authorization under paragraphs 34.4(2)(b) and 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. In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister must be of the opinion that the requirements of subsections 73(2) to (6.1) are met, and, after it is issued, the Minister must comply with the requirements of subsection 73(7).
A SARA permit or Fisheries Act authorization, if approved, would contain the terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.
Compliance and enforcement
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.
Any persons planning on undertaking an activity within the critical habitat of the Nooksack Dace should inform themselves 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
Species at Risk Operations
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca