Critical Habitat of the Black Redhorse (Moxostoma duquesnei) Order: SOR/2022-235

Canada Gazette, Part II, Volume 156, Number 24

Registration
SOR/2022-235 November 8, 2022

SPECIES AT RISK ACT

Whereas the Black Redhorse (Moxostoma duquesnei) 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;

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;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect a reserve or other lands that are set apart for the use and benefit of a band and, under subsection 58(7)footnote c of that Act, has consulted with the Minister of Indigenous Services and the band in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans makes the annexed Critical Habitat of the Black Redhorse (Moxostoma duquesnei) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a.

Ottawa, November 4, 2022

Joyce Murray
Minister of Fisheries and Oceans

Critical Habitat of the Black Redhorse (Moxostoma duquesnei) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Black Redhorse (Moxostoma duquesnei), 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 Black Redhorse (Moxostoma duquesnei) is a freshwater fish species member of the sucker family. Like most redhorse species, the Black Redhorse range is limited to eastern North America. In Canada, the species is restricted to southwestern Ontario, where it is considered the rarest of the redhorse species found in the province.

In August 2019, the Black Redhorse was listed as a threatened speciesfootnote 1 under the Species at Risk Act (SARA).footnote 2 The critical habitatfootnote 3 of this species was identified in the Recovery Strategy and Action Plan for the Black Redhorse (Moxostoma duquesnei) in Canada (PDF) [the Recovery Strategy], which was posted on the Species at Risk Public Registry (the Public Registry) on May 12, 2022.

As the competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the threatened Black Redhorse is legally protected by (a) provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11; or (b) by the application of subsection 58(1) of SARA.

Background

The Government of Canada is committed to conserving biodiversity both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the Convention on Biological Diversity in 1992. As a party to this Convention, Canada developed the Canadian Biodiversity Strategy and federal legislation to protect species at risk. SARA received royal assent in 2002. Its purpose is to

Habitat protection under SARA

Once a wildlife species has been listed as endangered, threatened, or extirpated in Schedule 1 of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and posted on the Public Registry. Based on the best available information, and to the extent possible, the recovery strategy or action plan must include an identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival).

Under SARA, critical habitat must be legally protected within 180 days after the final recovery strategy or action plan identifying that critical habitat is posted on the Public Registry. Critical habitat that is not located in a place referred to in subsection 58(2) of SARAfootnote 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 (this includes agreements under section 11 of SARA).

Black Redhorse

The Black Redhorse typically grows to an average length of 40 cm, making it one of the smaller of the seven redhorse species found in Canada. Distinguishing characteristics of the Black Redhorse include a long slender body, large and forked caudal fin with pointed lobes, a concave dorsal fin edge, large lateral scales, and a lack of transverse grooves on the lips.

Canadian populations of Black Redhorse have a limited extent of occurrence and area of occupancy, as they are found only in a few rivers in southwestern Ontario. Currently, the species is found in six tributaries of Lake Huron, one tributary of Lake St. Clair, and one tributary of Lake Erie. Historically, it was documented in tributaries of Lake Erie and Lake Ontario, and in Lake Simcoe. Black Redhorse was last detected in the Lake Erie tributary in 1938 and is now believed to be extirpated from this watershed; subsequent sampling efforts have also failed to detect the species in Lake Simcoe and the tributary of Lake Ontario.

Black Redhorse generally inhabits moderately sized, clear, warm-water rivers, typically preferring pools in the summer, and overwintering in deeper pools. It is generally found in sections of rivers with moderate to fast flows; however, it has occasionally been detected in areas with slower currents . It has been detected over a variety of substrate types and is more often found in wider stretches of rivers. The Black Redhorse appears less tolerant of turbidity and siltation than other redhorse species found in Canada.

Repeated sampling efforts have occurred in watersheds occupied by Black Redhorse, but a lack of consistent monitoring makes population dynamics difficult to assess. However, sampling records suggest that Black Redhorse populations are declining in some areas, while increasing in others.

The main threats facing the species include

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Black Redhorse and classified it as threatened in 1988. The species’ status was subsequently re-examined and confirmed as threatened in May 2005 and May 2015.

In August 2019, Black Redhorse was listed as a threatened species on the List of Wildlife Species at Risk (Schedule 1) of the Species at Risk Act.

As a threatened aquatic species listed under Schedule 1 of SARA, the prohibitions in section 32 and section 33 of SARA are automatically applied upon listing:

In May 2022, the Recovery Strategy was posted on the Public Registry. The Recovery Strategy identifies the critical habitat necessary to support the recovery of the Black Redhorse.

Objective

The objective of this regulatory initiative is to trigger, through the making of a critical habitat order, the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Black Redhorse that is identified in the Recovery Strategy for the species.

Description

Critical habitat has been identified in the Sauble River, Saugeen River, Maitland River (including Blyth Brook and Hopkins Creek), Bayfield River, Ausable River (including Little Ausable), Thames River (including Middle Thames River, Waubuno Creek, North Thames River, Fish Creek, Fanshawe Lake, Wye Creek, Stoney Creek, Medway Creek and Lower Thames River), and Grand River (including Conestogo River, Cedar Creek, Forwell Creek, Four Wells Lake, Laurel Creek, Nith River, Mount Pleasant Creek, and Big Creek).

Maps of the areas that contain critical habitat can be found in the Recovery Strategy. Only those areas within the identified geographical boundaries possessing features and attributes necessary to support defined life stage functions comprise the critical habitat.

The Critical Habitat of the Black Redhorse (Moxostoma duquesnei) Order (the Order) triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the Black Redhorse critical habitat. It results in the legal protection of the critical habitat identified in the Recovery Strategy.

If new information becomes available to support changing the critical habitat of the Black Redhorse, the Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation). The Order will apply to the revised critical habitat once included in an amended recovery strategy posted on the Public Registry.

The Order affords the Minister an additional tool to ensure that the critical habitat of the Black Redhorse is legally protected. It complements the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act. This subsection prohibits the carrying on of any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat.

Regulatory development

Consultation

Consultation on the critical habitat for Black Redhorse, and the intention to protect the species’ critical habitat through a critical habitat order, occurred during the development of the Recovery Strategy. Fisheries and Oceans Canada (DFO) developed the Recovery Strategy in cooperation with the Province of Ontario’s Ministry of Natural Resources and Forestry (MNRF), formerly the Ministry of Northern Development, Mines, Natural Resources and Forestry (MNDMNRF) and the Ministry of the Environment, Conservation and Parks (MECP). The Black Redhorse Recovery Team, including subject matter experts from the Grand River Conservation Authority, also provided support.

A draft of the Recovery Strategy was circulated to the Upper Thames River Conservation Authority, the Grand River Conservation Authority, and the Ausable Bayfield Conservation Authority for review prior to posting on the Public Registry.

Comments were received from MNRF, MECP and Grand River Conservation Authority on the draft Recovery Strategy. The comments were mainly focused on records of distribution and risk of certain threats. MNRF provided input that DFO took into account in the final characterization of critical habitat. The draft Recovery Strategy was reviewed twice by the Recovery Team, in February 2019 and then in November 2019, after some modifications were made to address initial feedback. Comments from all parties were incorporated into the draft Recovery Strategy.

The proposed Recovery Strategy and Action Plan for Black Redhorse (Moxostoma duquesnei) in Canada (the proposed Recovery Strategy) was posted on the Public Registry for a 60-day public comment period between July 29 to September 27, 2021. Notification emails were circulated to stakeholders on July 29, 2021, upon posting to the Public Registry, notifying them of the public comment period. These stakeholders included conservation authorities, environmental non-government organizations, municipalities, non-government organizations, angling organizations, and agricultural organizations. Indigenous groups were also notified of the public comment period (see section below for more information on Indigenous consultations). No comments were received from non-Indigenous organizations, and no comments were received from the general public during the public comment period.

Modern treaty obligations, and Indigenous engagement and consultation

Under SARA’s subsection 58(7), consultation with the Minister of Indigenous Services Canada and a band under the Indian Act was required, as critical habitat was identified in the Sauble and Saugeen Rivers, which flow through Saugeen Ojibway Nation (SON) lands; and also in the Grand River, which runs through Six Nations of the Grand River lands. In February 2021, a letter was sent to the Director General of the Lands and Environment Management Branch at Indigenous Services Canada notifying them of the upcoming Order and providing them with an opportunity to comment. No response was received.

SON and Six Nations of the Grand River were both notified of the opportunity to consult on the draft Recovery Strategy via a letter sent by email on October 2, 2020. Six Nations of the Grand River responded by requesting clarification on some of the terminology used in the draft Recovery Strategy and requested further information about specific recovery measures; threats, such as altered flow regimes and turbidity; cumulative impacts of pollution; and the need for cooperative action to address threats. DFO addressed the questions and concerns via a virtual meeting on November 12, 2020. In addition, a follow-up email was circulated on November 13, 2020, with information on potential funding opportunities and responses to outstanding inquiries. No additional follow-up was required.

DFO held a virtual meeting with SON on January 14, 2021. SON raised concerns about potential impacts of the Order on harvesting, to which DFO responded that the species is already protected under section 32 of SARA. Concerns were also expressed about potential effects related to riverbank alteration and land use along the Sauble and Saugeen Rivers. DFO responded by sharing information regarding proper procedures for projects near water. SON inquired about how its existing monitoring program could support data collection for the Black Redhorse, and also sought additional information on potential funding opportunities. SON shared its Coastal Water Monitoring Program Summary Report for 2019. In a same-day email follow-up , DFO provided information on potential funding opportunities, and added SON to the distribution list for the Habitat Stewardship Program.

In addition to the consultations required under subsection 58(7) of SARA, DFO consulted 12 Indigenous groups identified as those potentially having reserve lands or traditional lands near the distribution of the Black Redhorse. On October 2, 2020, these Indigenous groups were notified via email of the opportunity to comment on the draft Recovery Strategy. They were subsequently provided notice by email on July 29, 2021, that the proposed Recovery Strategy was posted on the Public Registry. A reminder email was circulated to all Indigenous groups on September 24, 2021, in advance of the closing of the comment period on September 27, 2021. No comments were received during the 60-day public comment period.

Under SARA’s subsection 58(8), consultation with a wildlife management board was not required, as there are no areas in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species that will be affected by the Order.

An assessment of modern treaty implications was completed. The assessment concluded that implementation of this Order will likely not have an impact on the rights, interests, and/or self-government provisions of treaty partners. There is in fact no modern treaty that covers the species’ range.

Instrument choice

Under SARA, all of a species’ critical habitat must be legally protected either by the application of the prohibition against the destruction of any part of the critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11. Courts have concluded that other federal laws must provide an equal level of legal protection for critical habitat as would be engaged through subsections 58(1) and (4), failing which, the Minister must make a critical habitat order, triggering the application of subsection 58(1) of SARA. They have also concluded that subsection 35(1) of the Fisheries Act does not legally protect critical habitat, because subsection 35(2) grants the Minister complete discretion to authorize the destruction of fish habitat. As a result, in most cases, the making of an order by the Minister may be necessary to legally protect critical habitat of an aquatic species at risk.

Regulatory analysis

Benefits and costs

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. Should a project proponent require a permit to affect the critical habitat of the Black Redhorse, the permit application process is the same regardless of whether a critical habitat order is in place (refer to the Implementation section). However, the federal government may incur some minimal costs, as it may undertake some additional activities associated with compliance promotion and enforcement. These costs would be absorbed through existing funding allocations.

The compliance promotion and enforcement activities to be undertaken by DFO to fulfill requirements under SARA, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups). These behavioural changes could also 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 resulting from these outreach activities.

Small business lens

The small business lens was applied, and it was determined that the Order does not impose any incremental regulatory costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to the Order, as no additional administrative burden is anticipated to be imposed on businesses. The 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 Convention on Biological Diversity. As such, the Order will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

The Black Redhorse is a species also protected under Ontario’s Endangered Species Act, 2007. Other provincial legislation that provides habitat protection include, but may not be limited to, considerations under section 3 of Ontario’s Planning Act, section 2.1.7 of the Provincial Policy Statement (2020) under the Planning Act, as well as Ontario’s Lakes and Rivers Improvement Act.

There are no international trade agreements that will be impacted as a result of this Order.

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 concluded that a strategic environmental assessment was not required for the Order, because the Order is not expected to have an important environmental effect on its own, considering the existing federal regulatory mechanisms in place.

However, it is expected that, when all planned recovery activities and legal protections are considered together, these will have a positive environmental impact and will 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 currently managed and will continue to be managed through existing measures under federal legislation, such as protections under the Fisheries Act. DFO provides a single window for proponents to apply for authorizations under the Fisheries Act or permits under SARA when they propose conducting works, undertakings or activities in or near water.

In order to lawfully conduct an activity resulting in the destruction of any part of the critical habitat of the Black Redhorse, the proponent must apply for and obtain an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that would have the same effect as a permit issued under subsection 73(1) 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 73(6.1) of SARA are met. After it is entered into or issued, the Minister must comply with the requirements of subsection 73(7) by reviewing the permit if an emergency order is made with respect to the species.

Provided that the Minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met, an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act can have the same effect as a permit issued under subsection 73(1) of SARA (as provided for by section 74 of SARA). After it is issued, the Minister must comply with the requirements of subsection 73(7).

A SARA permit or Fisheries Act authorization that acts as a SARA permit, 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. The permit application process is the same whether or not there is a critical habitat order in place in the affected area; the requirements of the Fisheries Act and SARA, including critical habitat considerations, are already considered by DFO staff during the review of a project. It is therefore not expected that there would be an increased administrative burden for a project proponent as a result of a critical habitat order.

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 Black Redhorse should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact DFO. For more information, proponents should consult DFO’s projects near water webpage.

Contact

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