ARCHIVED — Order Amending Schedule 1 to the Species at Risk Act

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Vol. 144, No. 6 — March 17, 2010

Registration

SOR/2010-33 February 23, 2010

SPECIES AT RISK ACT

P.C. 2010-201 February 23, 2010

Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsections 27(1) and (1.1) of the Species at Risk Act (see footnote a), hereby makes the annexed Order Amending Schedule 1 to the Species at Risk Act.

ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

AMENDMENTS

1. Part 2 of Schedule 1 to the Species at Risk Act (see footnote 1) is amended by adding the following in alphabetical order under the heading “FISH”:

Shark, Basking (Cetorhinus maximus) Pacific population
Pèlerin population du Pacifique

Stickleback, Misty Lake Lentic (Gasterosteus sp.)
Épinoche lentique du lac Misty

Stickleback, Misty Lake Lotic (Gasterosteus sp.)
Épinoche lotique du lac Misty

2. Part 4 of Schedule 1 to the Act is amended by adding the following in alphabetical order under the heading “FISH”:

Trout, Westslope Cutthroat (Oncorhynchus clarkii lewisi) British Columbia population
Truite fardée versant de l’ouest population de la Colombie-Britannique

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.)

Executive summary

Issue: A growing number of aquatic species in Canada face pressures and threats that put them at risk of extirpation or extinction. Many serve important biological functions or have intrinsic, recreational and existence value to the Canadian public and require conservation and protection to ensure healthy ecosystems for future generations.

Description: This Order amends Schedule 1 of the Species at Risk Act (SARA), by adding four aquatic species to the List of Wildlife Species at Risk (the List): the Misty Lake Lentic Stickleback (endangered), the Misty Lake Lotic Stickleback (endangered), the Westslope Cutthroat Trout (British Columbia population) [special concern] and the Basking Shark (Pacific population) [endangered]. These amendments are being made on the recommendation of the Minister of the Environment, in consultation with the Minister of Fisheries and Oceans. The addition of species to the List set out in Schedule 1 as endangered species invokes prohibitions against killing, harming, harassing, capturing, taking, possessing, collecting, buying, selling or trading individuals of these species. SARA also requires the preparation of recovery strategies and action plans to provide for their recovery and survival. When a species is added to the List as a species of special concern, SARA requires the preparation of a management plan to prevent them from becoming endangered or threatened species.

Cost-benefit statement: For each of the four species recommended for addition to the List, the socio-economic impacts are estimated to be low, while costs are expected to be minimal and net benefits are expected to be positive.

Business and consumer impacts: The potential net impact on fish harvesters and recreational anglers as a result of listing these four aquatic species is low, as well as the impact on governments.

Domestic and international coordination and cooperation: International coordination and cooperation for the conservation of biodiversity is provided through the Convention on Biological Diversity (see footnote 2) to which Canada is a signatory. Domestic coordination and cooperation is covered by several mechanisms developed to coordinate Species at Risk (SAR) Program implementation across the various domestic jurisdictions. These include inter-governmental committees, a National Framework for Species at Risk Conservation (NFSARC), and negotiated SAR bilateral agreements. The SAR bilateral agreements foster collaboration in the implementation of SARA and of provincial/territorial endangered species legislation.

Performance measurement and evaluation plan: Environment Canada (EC) has put in place a Results-based Management and Accountability Framework (RMAF) and a Risk-based Audit Framework (RBAF) for the Species at Risk Program. The specific measurable outcomes for the Program and the performance measurement and evaluation strategy are described in the Species at Risk Program RMAF and RBAF. The next Program evaluation is scheduled for 2010–2011.

Issue

A growing number of wildlife species in Canada face pressures and threats that put them at risk of extirpation or extinction. Canada’s natural heritage is an integral part of Canada’s national identity and history. 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. Canadian wildlife species and ecosystems are also part of the world’s heritage, and the Government of Canada has ratified the United Nations Convention on the Conservation of Biological Diversity. The Government of Canada is committed to conserving biological diversity.

SARA is a key tool in the ongoing work to protect species at risk. By providing for the protection and recovery of species at risk, SARA is one of the most important tools in the conservation of Canada’s biological diversity. SARA also complements other laws and programs of Canada’s federal, provincial and territorial governments, and supports the efforts of conservation organizations and other partners working to protect Canadian wildlife and habitat.

On June 11, 2009, the Governor in Council (GIC) acknowledged receipt of assessments for nine aquatic species that had been assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). Receipt of eight of these species initiated the nine-month timeline set out in SARA within which the GIC, on the recommendation of the Minister of the Environment, may decide to accept the assessments and add these species to the List, decide not to add these species to the List, or refer the matter back to COSEWIC for further information or consideration. This regulatory action addresses four of these eight species.

A separate order will be published on the decision not to add to the List three populations of Winter Skate (Southern Gulf of St. Lawrence, Eastern Scotian Shelf and Georges Bank-Western Scotian Shelf-Bay of Fundy populations) and the Chinook Salmon (Okanagan population). The decision not to list these species was made on the recommendation of the Minister of the Environment, in consultation with the Minister of Fisheries and Oceans, taking into account the assessments provided by COSEWIC. The ninth species, the Western Silvery Minnow, will be dealt with through a separate order.

Objectives

The purposes of SARA are

1. To prevent wildlife species from being extirpated or becoming extinct;

2. To provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and

3. To manage species of special concern to prevent them from becoming endangered or threatened.

Adding species to the List will result in the species receiving the benefits of protection and recovery measures established under SARA. This will result in overall benefits to the environment both in terms of the protection of individual species and the conservation of Canada’s biological diversity.

Description

The purpose of the Order Amending Schedule 1 to the Species at Risk Act is to add four aquatic species to the List. This amendment is made on the recommendation of the Minister of the Environment based on advice from the Minister of Fisheries and Oceans, on scientific assessments by COSEWIC, and on consultations with governments, Aboriginal peoples, stakeholders and the Canadian public.

The status, as assessed by COSEWIC, for these four species is presented in Table 1. The full status assessments, including the reasons for classification and the species range for these four species, are available at www.sararegistry.gc.ca.

Table 1. Status designations of the four species assessed by COSEWIC

Fishes (freshwater)

Misty Lake Lentic Stickleback

Endangered

Misty Lake Lotic Stickleback

Endangered

Westslope Cutthroat Trout (British Columbia population)

Special concern

Fishes (marine)

Basking Shark (Pacific Population)

Endangered

Once the Misty Lake Lentic Stickleback, the Misty Lake Lotic Stickleback and the Basking Shark (Pacific population) are listed as endangered, the SARA prohibitions that make it an offence to kill, harm, harass, capture or take an individual of these species will apply. It will also be an offence to possess, collect, buy, sell or trade such individuals and to damage or destroy the residence of one or more such individuals. Listing the Westslope Cutthroat Trout (British Columbia population) as a species of special concern does not trigger the application of the SARA prohibitions.

Under section 37 of SARA, the Minister of Fisheries and Oceans is required to prepare a strategy for the recovery of the three species listed as endangered. Pursuant to section 41 of SARA, the recovery strategy must, inter alia, address threats to the species’ survival and to its habitat, describe the broad strategy to address those threats, identify the species’ critical habitat to the extent possible based on the best available information, state the population and distribution objectives that will assist the recovery and survival of the species and identify research and management activities needed to meet the population and distribution objectives. The recovery strategy also provides a timeline for completion of one or more action plans.

Under section 47 of SARA, the Minister of Fisheries and Oceans is also required to prepare one or more action plans for the three species listed as endangered. These action plans are developed to implement the recovery strategies. They must, with respect to the area to which the action plan relates, identify, among others, measures that address the threats to the species and those that help to achieve the population and distribution objectives for the species and when these are to take place; the species’ critical habitat, to the extent possible, based on the best available information and consistent with the recovery strategy; measures proposed to be taken to protect the species’ critical habitat; and methods to monitor the recovery of the species and its long-term viability. These action plans also require an evaluation of the socio-economic costs of the action plan and the benefits to be derived from its implementation.

Under section 65 of SARA, the Minister of Fisheries and Oceans is required to prepare a management plan for the species listed as a species of special concern. This management plan will include measures for the conservation of the species and its habitat.

The recovery strategies, the action plans and the management plan must be posted on the Public Registry within the timelines set out under SARA.

Regulatory and non-regulatory options considered

Within nine months of receiving COSEWIC assessment of the status of a species, the GIC may review that assessment and may, on the recommendation of the Minister of the Environment, (1) accept the assessment and add the species to the List; (2) decide not to add the species to the List; or (3) refer the matter back to COSEWIC for further information or consideration. All three courses of action were considered when developing the Order Amending Schedule 1 to theSpecies at Risk Act and the separate List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order.

The first option is to accept the COSEWIC assessments and to add the species to the List, thereby ensuring that the species receives protection in accordance with the provisions of SARA, including mandatory recovery or management planning.

The second option is to decide not to add the species to the List. Although the species would neither benefit from prohibitions afforded by SARA, nor the recovery or management activities required under SARA, species may still be protected under other federal, provincial or territorial legislation. When deciding not to add a species to the List, it is not referred back to COSEWIC for further information or consideration. COSEWIC may also call for the reassessment of any species when there is reasonable evidence that its status has changed.

The third option is to refer the matter back to COSEWIC for further information or consideration. It would be appropriate to send an assessment back, if, for example, significant new information became available after the species had been assessed by COSEWIC.

If the GIC has not taken a course of action in response to COSEWIC’s assessments by March 11, 2010, the Minister of the Environment shall by order amend the List in accordance with COSEWIC’s assessments.

Consultation

Under SARA, the scientific assessment of species status and the decision to add a species to the List are comprised of two distinct processes. This separation guarantees that scientists may work independently when making assessments of the biological status of wildlife species and that Canadians have the opportunity to participate in the decision-making process in determining whether or not species will be listed under SARA.

Public consultations were conducted by the Department of Fisheries and Oceans in 2008 and 2009 on eight aquatic species’ status assessments. Consultations were facilitated through mail-outs, meetings, public sessions, consultation workbooks, and other supporting documents which were made available on the SARA Public Registry and other government Internet sites. Consultations were conducted with fish harvesters, industry sectors, recreational fishers, Aboriginal groups, environmental organizations (ENGOs), other levels of government and the public. The consultation results for the individual species are outlined further below.

Benefits and costs

Description and rationale

This Order adds four aquatic species to the List. Listing a species on Schedule 1 of SARA entails both benefits and costs in terms of social, environmental and economic considerations through the implementation of SARA’s prohibitions upon listing and the recovery planning requirements.

When listed as endangered species, the three aquatic species, wherever they are found, will benefit from immediate protection through the prohibitions under SARA. Moreover, for these three species, this order will result in the development and implementation of recovery strategies and of action plans that identify measures that are to be taken to implement the recovery strategies. For the species listed as a species of special concern, this order will result in the development and implementation of a management plan that includes measures for the conservation of the species and its habitat.

Under sections 32 and 33 of SARA (the general prohibitions), it is an offence to

  • kill, harm, harass, capture or take an individual of a listed species that is extirpated, endangered or threatened;
  • possess, collect, buy, sell or trade an individual of a listed species that is extirpated, endangered or threatened, or its part or derivative; and
  • damage or destroy the residence of one or more individuals of a listed endangered or threatened species or of a listed extirpated species if a recovery strategy has proposed its reintroduction into the wild in Canada.

Benefits

Protecting species at risk can provide numerous benefits to Canadians beyond direct economic benefits, such as the protection of essential ecosystems. Moreover, many species serve as indicators of environmental quality. Various studies indicate that Canadians place value on preserving species for future generations to enjoy and from knowing the species exist, even if they will never personally see or otherwise enjoy them. Furthermore, the unique characteristics and evolutionary histories of many species at risk, such as the Misty Lake Sticklebacks, make them of special interest to the scientific community.

When seeking to quantify the economic benefits to society provided by a species, the most commonly used framework is the Total Economic Value (TEV). The TEV of a species can be broken down into the following components:

  • Direct Use — refers to the consumptive use of a resource, such as fishing;
  • Indirect Use — includes non-consumptive activities, such as whale watching, which represents recreational value;
  • Option Use Value — represents the value of preserving a species for future direct and indirect use; and
  • Passive Values (or non-use value) — include bequest value, which is the value of preserving a species for future generations, and existence value, which represents the altruistic value individuals derive from simply knowing that a given species exists, regardless of potential for any future use. (see footnote 3)

Passive values mostly dominate the TEV of species at risk. (see footnote 4) When a given species is not readily accessible to society, existence value may comprise the major or only benefit of a particular species. (see footnote 5)

Passive values can be estimated by willingness to pay — the amount an individual is willing to pay per year to preserve a species.

With regard to the species under consideration in this Order, there is limited information available regarding quantification of benefits. Willingness to pay studies on species included in this Order have not been conducted in Canada. However, various studies of similar species in the United States could be an indication that Canadians do derive substantial non-use economic benefits from conservation programs targeting species at risk, including relatively low-profile species. (see footnote 6) In the absence of existing data in the Canadian context, the data from the United States studies will be used.

With regard to Canadians’ willingness to pay for the preservation of species under consideration in this Order, information is limited. However, studies on other at-risk species indicate that Canadians do place substantial economic value upon targeted conservation programs, even for relatively low-profile species. (see footnote 7) Although specific studies are not available, it is not always necessary to quantify benefits in order to determine their likely magnitude in comparison to the costs imposed on Canadians. This Order reflects that understanding, using the best available quantitative and qualitative information. Where this information was inconclusive, a benefits value transfer method was used to the extent possible.

Costs

Major categories of costs attributed to the Order include compliance promotion, enforcement, implementation, monitoring and evaluation. These costs could arise from the application of SARA, in particular the enforcement of the SARA prohibitions and/or the development and implementation of recovery strategies, action plans, or management plans depending on the classification of the species.

Costs attributed to affected parties, including industries, individuals and different levels of governments, vary and would be proportional to some key parameters, such as threats, population size and distribution, as well as economic activities surrounding the species. Also, impacts will vary depending on the classification of the species under SARA. For example,

  • for the one aquatic species that is added to the List as a species of special concern, Westslope Cutthroat Trout (British Columbia population), the prohibitions under sections 32 and 33 of SARA will not apply, meaning there are no associated costs. Rather, the affected stakeholders may incur costs that would stem from the development and implementation of a management plan required for species of special concern under SARA. For example, the preparation of the management plan for Westslope Cutthroat Trout (British Columbia population) will be undertaken by the province of British Columbia together with the Department of Fisheries and Oceans (DFO).
  • the three new additions to the List under the endangered category will result in the application of general prohibitions upon listing; a more detailed analysis will follow.

In addition to the original federal resources dedicated to SARA upon launching of the Act in 2004, $275 million was allocated in 2006 by the Government of Canada to address the administration of the Act over a five-year period, from 2007/08 to 2011/12, with 63% of funding allocated to EC, 24% to DFO, and 13% to Parks Canada.

Amendments to the List trigger certain requirements, and there are direct costs associated with these requirements. Many of these costs stem from the development of recovery strategies for species being added to the List. Specific actions needed to implement those strategies are identified in action plans, and SARA requires that each action plan include an evaluation of the socio-economic costs of the actions. The costs are likely to vary widely depending on the species, context, and actions required.

Costs arising from the enforcement activities associated with listing under this Order are anticipated to be low. Incremental activities related to enforcement costs to DFO are not expected to create a significant additional burden on the enforcement officers.

Species included in this Order and listed in the endangered category will require a recovery strategy and action plan. Cost may arise from foregone economic activities. These costs stem from restricting human activities that would have occurred in the absence of general prohibitions and recovery actions. Although the specific costs are difficult to quantify at this time, it is expected that costs associated with this Order will be low to moderate.

The benefits and costs to Canadian society have been estimated to the greatest extent practicable, according to the 1999 benefit-cost guidelines (see footnote 8) set out by the Treasury Board Secretariat of Canada. Dollar estimates are presented as changes in net economic value (consumer and/or producer surplus) wherever possible. When quantitative estimation was not possible or expected impacts were too low to warrant extensive analysis, the potential impacts are described in qualitative terms.

Aquatic species added to the List

The present analysis focuses on the three freshwater species and on the marine species that are added to the List. Three of the species, the Misty Lake Lotic Stickleback, the Misty Lake Lentic Stickleback, and the Basking Shark (Pacific population) are added as endangered, while the Westslope Cutthroat Trout (British Columbia population) is added as a species of special concern.

Misty Lake Stickleback (Lentic and Lotic populations)

According to COSEWIC’s assessment, the Misty Lake Lentic and Lotic Sticklebacks are a highly divergent species pair restricted to a single lake-stream complex on Vancouver Island, and thus have an extremely small area of occurrence. This species pair could quickly become extinct due the introduction of non-native aquatic species or perturbations to the habitat. (see footnote 9)

Consultations

During the consultation sessions held in British Columbia in Fall 2008, there was little interest expressed concerning the potential listing of the Misty Lake Stickleback (Lentic and Lotic populations). In addition to the consultation sessions, 14 consultation workbooks were completed by First Nations and other stakeholder groups, none of which indicated any opposition to listing the species. None of the Aboriginal groups that provided feedback indicated that either population of the species is used for food, social or ceremonial purposes. The Province of British Columbia wanted to assess the implications of protecting Stickleback critical habitat before confirming their listing recommendation. However, the Province felt relatively confident that risks outside of the ecological reserve could be mitigated with existing legislation.

Benefits

Benefits can only be estimated for this analysis by examining specific studies of other fish species, and there are few examples with characteristics similar to the Misty Lake Stickleback for which humans have similar uses and familiarity. However, the scientific value for these species is high. The species pair is considered of great value for studying evolutionary processes due to a very high level of adaptive radiation within the genus.

Costs

It is anticipated that the overall socio-economic costs of listing the two Misty Lake Stickleback populations will be very low. The species is not known to be commercially or recreationally harvested, nor is there any indication of use by First Nations for food, social or ceremonial purposes. Furthermore, it is not known how a listing under SARA is likely to change the probability of survival of the populations. However, the cost of listing these species is not prohibitive and the implementation of best forestry practices can likely reduce the costs substantially below those estimated here.

The populations of Misty Lake Stickleback (Lentic and Lotic) are currently stable (COSEWIC 2007) and reside within the Misty Lake ecological reserve. However, additional protective actions may be undertaken to decrease the chance (by an unknown amount) that the population will be lost. To address the main threats to the population, the Misty Lake Ecological Reserve could be expanded, an adjacent highway (Highway 19) rest stop could be relocated to minimize contamination from highway runoff and to reduce the chance of introduction of invasive species, and logging activities could be restricted. These actions would result in annual costs (based on the 2008 commercial price) to the forest industry of approximately $306,000 in foregone profits if all activity were stopped, and annual costs to government of $16,000 to $20,000 over 10 years ($30,000 to $32,000 over five years) for alterations to the reserve and the rest stop.

Additional costs to the Government of Canada for research, education, and public involvement associated with a recovery strategy and an action plan will also be incurred. Costs are estimated to be less than $70,000 (annualized) for five years.

Total costs are therefore estimated to be, at most, $400,000 per year (over five years).

Rationale

Cost estimates represent upper limits and the unlikely scenario of the complete cessation of logging activity in the species’ watershed. Actual costs are in fact likely to be much lower, and the net benefits of listing the Misty Lake Sticklebacks are expected to be positive when research and existence values are taken into account.

Basking Shark (Pacific population)

Canada’s Pacific population of Basking Sharks has virtually disappeared. There are only six confirmed records of Basking Sharks in the Canadian Pacific since 1996, four of which are from trawl fishery observer records. It is estimated that their rate of decline has exceeded 90% within about 60 years, or two to three generations. (see footnote 10) Due to the significant lack of knowledge on current abundance, migratory behaviour and range, or on the relative impacts of past and present human activities, there is great uncertainty around projections for the future.

Consultations

The Fall 2008 consultation sessions regarding the potential listing of the Basking Shark (Pacific population) generated some interest from Aboriginal groups and commercial fishers, and a great deal of interest from the general public and ENGOs. Significant feedback was received, including over 250 emails and numerous letters in support of listing this species. Among advocates, the reasons for listing the Basking Shark included there being little to no economic impact on commercial activities and the species being at imminent risk of extinction in Canada’s Pacific waters. Twenty-seven consultation workbooks were completed regarding the Basking Shark, 20 of which supported listing the species. The workbook results indicated commercial fishers were the only sector to register a mild lack of support for listing the Basking Shark as endangered under SARA. Some commercial fishers mentioned that they did not believe numbers were down because they were still encountering Basking Sharks in their gear. The Province of British Columbia had no objections to listing Basking Shark due to high public interest and no apparent economic impacts to fishers.

Benefits

The rarity, uniqueness, size and conspicuous surface behaviour of the Basking Shark make the existence value for this species high. The Canadian public has demonstrated its desire to preserve this species through a high volume of written appeals to government for its protection.

Costs

It is anticipated that the socio-economic impacts of listing the Basking Shark will be minimal due to the low encounter rate. Protection measures include stewardship, monitoring and reporting, and increased public awareness. Some stewardship activities for the commercial fishing industry could be implemented through licensing conditions, but these are unlikely to pose significant expense to the industry. Costs associated specifically with improved monitoring and reporting for Basking Shark are also expected to be minimal, as the ground fish fishery has 100% observer coverage in place (whereby licence holders are required to carry an officially recognized observer onboard), and work has already begun towards implementing improved monitoring in the salmon fishery. Costs are also anticipated to be low for recreational fishers, aquaculture, and other industries such as the energy sector. If Basking Shark populations increase and encounters become more frequent, measures to avoid collision and entanglement will be required for the commercial fishing sector. Similar measures may be required for the aquaculture sector to minimize the chance of shark entanglement in the nets of rearing pens.

By listing the Basking Shark, costs to the Government of Canada could include data collection and research in order to identify and quantify the most serious threats, and to implement a public awareness program. Should shark populations increase and interactions become more frequent, additional education for boaters may be required to ensure avoidance of collision with surface-feeding sharks.

Rationale

Net benefits of listing the Basking Shark are expected to be positive as there are few costs associated with listing. A great deal of support for listing this species was expressed through e-mails and letters, indicating that the non-market benefits associated with the survival and recovery of this species are high. Human activities may be more affected in the future if Basking Shark populations increase and the frequency of interactions increase accordingly.

Westslope Cutthroat Trout (British Columbia population)

According to COSEWIC’s assessment, the Westslope Cutthroat Trout found in Canada are restricted to south eastern British Columbia and south western Alberta. Globally, the range of the population has become extremely fragmented and the heart of their distribution now centres on the upper Kootenay River drainage. The species inhabits large rivers and lakes in British Columbia, as well as many small mountain streams. It is estimated that native populations have been reduced by almost 80% through over-exploitation, habitat degradation, and hybridization/ competition with introduced, non-native trout. (see footnote 11)

Consultations

In regards to the Westslope Cutthroat Trout, the Sport Fishing Advisory Board (a regional advisory body to DFO) was consulted directly, while local sports fishermen, guides and/or communities were given an opportunity to provide comments through the workbooks available on DFO’s consultation Web site. These consultations occurred in the fall of 2008.

The Westslope Cutthroat Trout is a very popular sport fish managed by the province of British Columbia. Sixteen consultation workbooks were completed by stakeholders, the majority of which indicated support for listing. There is considerable interest in this species on the part of First Nations, with two groups indicating that the Westslope Cutthroat Trout is used for food, social and ceremonial purposes. In addition to the workbooks, a meeting was held with the Upper Columbia Aquatic Management Partnership (UCAMP) Technical Working Group in February 2009.

Benefits

The species is a very popular sport fish, and is considered a world class fishery that attracts international recreational anglers. Accordingly, benefits from its protection are likely to be very large. However, these benefits have not yet been estimated quantitatively. Activities undertaken to protect Westslope Cutthroat Trout populations could have spill over benefits in protecting other species and their habitats, and in maintaining the value of the species’ range areas for other recreation and tourism. However, any restrictions on angling for this fish may displace fishing pressure to other species. The Westslope Cutthroat Trout is also an important species to First Nations groups and is used by some for food, social and ceremonial purposes.

Costs

A large number of economic activities are undertaken within the distribution range of this trout. These include mining, forestry, agriculture, urban development, dam operation, and transportation (highway and railway corridors). Best Management Practices in some of these sectors (extractive industries, agriculture, and urban development) are anticipated to be sufficient protection for cutthroat trout, and impacts are not expected to be large. More information will become available when the Province’s Management Plan is completed. Nevertheless, due to the species’ status as special concern, the general prohibitions will not apply, meaning the socio-economic impacts of listing on these sectors are expected to be low, if any.

Adding this species to the List as a species of special concern will result in the development and implementation of a management plan by the Province of British Columbia, together with DFO, to undertake activities that will ensure this species does not become threatened or endangered. These activities are not anticipated to significantly impact the sport fishing industry; however, mitigation measures could be put in place that could include, for example, adjustments to catch quotas.

Rationale

Potential impacts are confined to those arising from a SARA-compliant management plan, currently under development by the Government of British Columbia together with DFO. The Westslope Cutthroat Trout sport fishery is internationally renowned, and benefits from its protection are likely to be very large while potentially affording spill over benefits in protecting other species and their habitats. Accordingly, this species has already been managed carefully by the Province of British Columbia as an important sport fish for some time. Management actions can be chosen and undertaken to ensure positive net benefits from listing this species.

Consultation

On December 5, 2009, an order proposing the addition of four aquatic species to the List was published in the Canada Gazette, Part I, for a 30-day public comment period. This order was accompanied by a Regulatory Impact Analysis Statement (RIAS) which mentioned that the Minister of Fisheries and Oceans considered advising the Minister of the Environment that he recommend to the GIC not to add four other aquatic species to the List. The draft order and the RIAS were based on earlier consultations held by DFO on individual species. This RIAS addresses the comments received on the eight species. A separate order will be published on the decision not to add to the List the Winter Skate (Southern Gulf of St. Lawrence population, Eastern Scotian Shelf population and Georges Bank–Western Scotian Shelf–Bay of Fundy population) and the Chinook Salmon (Okanagan population). A total of six comments were received during the consultation period. Four comments were from ENGOs and one was from a commercial fisher. An Aboriginal organization also sent a notice of concern.

The following section outlines the comments received, in general and by species, along with DFO’s responses to these comments where appropriate.

General Comments

ENGO comments supported the recommendation to list four aquatic species, while questioning the recommendation not to list the remaining four species.

One comment proposed that all freshwater and marine species be regulated by EC due to a perception that DFO’s mandate is to protect commercial fishing interests. However, the SARA identifies the Minister of Fisheries and Oceans as the competent minister with respect to aquatic species. As a department, DFO is responsible for developing and implementing policies and programs in support of Canada’s scientific, ecological, social and economic interests in oceans and fresh waters, and achieves these objectives using several tools, including SARA, the Fisheries Act and the Oceans Act.

An additional comment stated that not listing a species on the basis of socio-economic costs is a flawed approach. EC and DFO, like all other federal departments, must follow the Cabinet Directive on Streamlining Regulation, which requires Ministers to conduct public consultations and socio-economic analysis and to consider the results of these prior to making recommendations to GIC. DFO will continue to consider all available information to inform the Minister of Fisheries and Oceans’ advice to the Minister of the Environment as well as the Minister of the Environment’s recommendation to the GIC in accordance with section 27(1.1) of SARA. This includes the COSEWIC status assessment, other available information on the status and threats to the species, the results of consultations, and social and economic impacts from listing the species. DFO has assessed the feasibility of using SARA regulatory instruments to address the threats posed to the species.

Chinook Salmon (Okanagan population)

An ENGO commented that DFO is missing an opportunity to engage in bilateral recovery efforts with the United States through the use of SARA provisions. However, Canada and the United States have already recognized the need to address Chinook conservation and recovery on a coast-wide basis, and have made changes to commercial salmon fishery regimes. Amendments to the Pacific Salmon Treaty in 2009 reduced catch limits on Upper Columbia Chinook by 30% on the West Coast of Vancouver Island and by 15% in Southeast Alaska. DFO remains committed to continuing to manage Chinook salmon populations, including the Okanagan Chinook, under the Fisheries Act.

The submission from an Aboriginal organization indicated that the recommendation to not list Okanagan Chinook is of serious concern to that organization and its member communities as it has the potential to adversely impact Aboriginal rights and title, and also indicated concerns about the statements made with respect to the scientific assessment of the species and corresponding recovery measures. However, the organization did not provide any further information on the specific nature of their concerns.

One comment from a commercial fisher supported the recommendation not to list Okanagan Chinook due to the anticipated economic impacts of listing.

Winter Skate (Southern Gulf of St. Lawrence, Eastern Scotian Shelfand Georges Bank — Western Scotian Shelf — Bay of Fundy populations)

In the case of the three Winter Skate populations, ENGO comments questioned several aspects of the rationale provided for considering advising the Minister of the Environment to recommend to the GIC not to add the Winter Skate to the List.

The pre-publication notice stated that impacts of listing would likely include the closure of some or all commercial groundfish and shellfish fisheries in areas where Winter Skate are found, resulting in significant socio-economic costs. ENGO comments criticized this rationale for not examining alternative scenarios, including the possibility of changing to lower-impact gear types or smaller, strategic closed areas. They state that changes in gear type would not only reduce bycatch levels, but would also have positive economic results, including increasing employment. ENGOs expressed the view that complete fishery closures would be unlikely.

Scientific studies on the Winter Skate undertaken by DFO have concluded that the Eastern Scotian Shelf and Southern Gulf of St. Lawrence populations are unlikely to recover, even if all known sources of human-induced mortality are eliminated, due to a high rate of adult mortality. (see footnote 12) Therefore, listing these populations under Schedule 1 of SARA would require any fishery which could potentially impact Winter Skate be closed, including those which could cause incidental harm such as hook and line fishing for groundfish. However, the recommendation to not list the Winter Skate does not preclude the introduction of new management measures under the Fisheries Act.

Using the Fisheries Act to manage the Winter Skate population would allow DFO to use alternative management measures in addition to those already in use. Currently, it is not permitted to retain any species of skate in the offshore or inshore scallop fisheries. There are already two spatial closures in place on Georges Bank annually: approximately six weeks to minimize impacts on spawning cod (February and March) and four weeks (June) to protect yellowtail flounder. These closures indirectly protect other species, including Skate. In the offshore scallop fleet, gear modification is an ongoing process aimed at further reducing bycatch of finfish. Bycatch avoidance protocols for finfish are also in place and clearly articulated to captains and crews. Furthermore, in the shrimp fisheries, the mandatory use of the Normore grate, which prevents bycatch, has greatly reduced the bycatch of Winter Skate.

The pre-publication notice stated that reductions in bycatch and the closure of directed skate fisheries have had little or no impact on the decline of the species so far and that the benefits of listing would be limited. However, ENGO comments suggest that this conclusion is premature given that the life history characteristics of the Winter Skate make recovery a slow process and that sufficient time has not elapsed since the directed fishery has been closed to make this determination. ENGO comments also suggest that there is uncertainty about levels of skate bycatch.

Winter Skate life history does make the species vulnerable to exploitation. DFO has undertaken the Recovery Potential Assessment of the Winter Skate to separate the estimated effects of fishing from other sources of mortality (termed natural mortality). (see footnote 13) Mortality appears to have increased through time but known fishing mortality and discards have been decreasing and are currently at relatively low levels, suggesting that the level of natural mortality has increased. The main factor limiting the productivity of the Winter Skate populations is high adult natural mortality. It is possible that some mortality may be due to unaccounted fishing, and the scallop fishery was identified as a possible main source of unaccounted fishing mortality. However, a recent study in the Southern Gulf of St. Lawrence suggests that the fishery has a negligible impact on the Winter Skate population.

DFO continues to gather information on bycatch of Skate through observer coverage, commercial information and SARA bycatch project; these activities will continue. The Recovery Potential Assessment for the Southern Gulf of St. Lawrence population has demonstrated that even if incidental capture in groundfish and shrimp fisheries was ended, there would be a negligible impact on recovery. The same would be true of the scallop fishery, based on recent estimates of captures. On the Scotian shelf, halting all fishery removals would decrease but not reverse the rate of decline. (see footnote 14) Most of the fishery removals incorporated in the Recovery Potential Assessment were from the directed skate fishery, which is now closed; the remaining estimated fishery removals constituted a very small proportion of adult mortality.

Bycatch in groundfish and shrimp fisheries was estimated based on data collected by at-sea observers. While there is potential for bias in the observer data, it is unlikely that this bias would be large enough to explain a significant portion of the estimated adult mortality. Furthermore, fishing mortality of incidentally captured species is typically directly related to fishing effort. Groundfish fishing effort in the southern Gulf of St. Lawrence has declined substantially since the early 1990s, consistent with the estimated reduction in the fishing mortality of skates.

The Recovery Potential Assessment identified bycatch in the scallop fisheries as a possible source of mortality. As a result, at-sea sampling was undertaken to determine the impact of scallop fisheries on the Winter Skate population. Preliminary estimates suggest that approximately 1 400 Winter Skate are captured annually in the Southern Gulf scallop fishery, a minute fraction of the overall population of 380 000 to 2 million Southern Gulf Winter Skate estimated in the Recovery Potential Assessment. Furthermore, the Winter Skate captured in scallop dredges were almost exclusively in excellent or good physical condition prior to discarding. Experiments involving the live-holding of skates captured by bottom-trawls suggest that survival of fish in excellent to good condition is very high. (see footnote 15) However, these findings do not change the conclusion of the Recovery Potential Assessment that the Eastern Scotian Shelf and the Southern Gulf of St. Lawrence populations are unlikely to recover due to the high rate of natural mortality.

ENGOs commented that while they agree that life history characteristics of Winter Skate make them highly vulnerable to being at risk, this is not a valid reason to not list a species under SARA. One of the possible sources of natural mortality is predation by Grey Seals. One of the ENGO submissions contested this view, stating that Winter Skate constitute only a minor portion of the Grey Seal diet. DFO is conducting research on the diet of Grey Seals. The most recent information indicates that Winter Skate comprise approximately 0.2–0.3% (and seasonally up to 2%) of grey seal diets. While Winter Skate may represent a small proportion of Grey Seal diet, this amount represents approximately 4 000 ton of skate. Recent modeling work suggests that natural mortality of the Southern Gulf of St. Lawrence population can be completely explained by Grey Seal predation if the skates comprise 0.2% of the diet of Grey Seal in the Gulf of St. Lawrence. Overall, natural mortality of adult Winter Skate has increased over the same period that seal abundance has increased. This increase in adult natural mortality appears to be a contributing factor to the lack of recovery potential for this species. (see footnote 16)

ENGOs also question the rationale for not listing the special concern Winter Skate population, as listing this population would not require fishery closures, and the associated socio-economic impacts, while allowing the implementation of certain measures such as restrictions on bycatch and mandatory discard. Comments suggested that if bycatch levels are low, then commercial losses due to management measures would be minimal. ENGOs also highlighted the importance of applying the precautionary approach, particularly in light of the Fisheries Management Renewal Program, which is intended to enable DFO and resource users to meet conservation objectives. The comments suggest that the recommendation not to list Winter Skate is a means of avoiding management of Winter Skate bycatch in several important fisheries. In lieu of listing Winter Skate, DFO is committed to adding targeted conservation measures to Integrated Fisheries Management Plans. (see footnote 17)

Bycatch in all three populations of Winter Skate will be managed under the Fisheries Act and Integrated Fisheries Management Plans and implemented as conditions of fishing licenses issued for groundfish. Management measures will include, but may not be limited to, the mandatory release of all Winter Skate caught as bycatch, including live release wherever possible, continued closure of the commercial skate fishery, and monitoring to determine discard rates. The Fisheries Act allows the necessary flexibility to address key issues such as closures, alternative gear types, or licence conditions. The new Integrated Fisheries Management Plan process incorporates ecosystem objectives as part of the Fisheries Renewal process. This will allow for bycatch to be addressed under biodiversity objectives, and for human induced mortality to be reduced through strategies and tactics developed as part of the process.

Implementation, enforcement and service standards

DFO developed a compliance plan for the Order amending Schedule 1 to the Species at Risk Act to address the first five years of implementation of compliance promotion and enforcement activities related to the general prohibitions. Specifically, the compliance plan will only address compliance with the general prohibitions for species added to the List as extirpated, endangered or threatened species. The compliance plan is aimed at achieving awareness and understanding of the Order among the affected communities; adoption of behaviours by the affected communities that will contribute to the overall conservation and protection of wildlife at risk; compliance with the Order by the affected communities; and to increase the knowledge of the affected communities.

Implementation of the Order amending Schedule 1 to the Species at Risk Act will include activities designed to encourage compliance with the general prohibitions. Compliance promotion initiatives are proactive measures that encourage voluntary compliance with the law through education and outreach activities, and raise awareness and understanding of the prohibitions, by offering plain language explanations of the legal requirements under the Act. Fisheries and Oceans Canada will promote compliance with the general prohibitions of SARA through activities which may include online resources posted on the SARA Public Registry, fact sheets, mail-outs and presentations. These activities will specifically target groups who may be affected by this Order and whose activities could contravene the general prohibitions, including other federal government departments, First Nations, private land owners, recreational and commercial fishers, national park visitors and recreational ATV users on parks lands. The compliance plan outlines the priorities, affected communities, timelines and key messages for compliance activities.

At the time of listing, timelines apply for the preparation of recovery strategies, action plans or management plans. The implementation of these plans may result in recommendations for further regulatory action for protection of the species. It may draw on the provisions of other acts of Parliament, such as the Fisheries Act, to provide required protection.

SARA provides for penalties for contraventions to the Act, including liability for costs, fines or imprisonment, alternative measures agreements, seizure and forfeiture of things seized or of the proceeds of their disposition. SARA also provides for inspections and search and seizure operations by enforcement officers designated under SARA. Under the penalty provisions of the Act, a corporation found guilty of an offence punishable on summary conviction 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. A corporation found guilty of an indictable offence is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

Contact

Susan Mojgani
Director
Program Management, Species at Risk Directorate
Oceans, Habitat and Species at Risk Sector
Fisheries and Oceans Canada
Ottawa, Ontario
K1A 0E6
Telephone: 613-990-0280
Email: susan.mojgani@dfo-mpo.gc.ca

Footnote a
S.C. 2002, c. 29

Footnote 1
S.C. 2002, c. 29

Footnote 2
For further information on the Convention on Biological Diversity, visit www.cbd.int.

Footnote 3
Wallmo, K. Threatened and Endangered Species Valuation: Literature Review and Assessment (Online), www.st.nmfs.noaa.gov/st5/documents/bibliography/Protected_Resources_Valuation%20.pdf.

Footnote 4
Ibid. 23

Footnote 5
Jakobsson, Kristin M.; Dragun, Andrew K., Contingent valuation and endangered species: Methodological issues and applications, New Horizons in Environmental Economics series. Cheltenham, U.K. and Lyme, N.H.: Elgar; distributed by American International Distribution Corporation, Williston, Vt., 1996.

Footnote 6
M. A. Rudd. Memorial University of Newfoundland EVPL Working Paper 07-WP003 (2007).

Footnote 7
Ibid.

Footnote 8
Most analyses were carried out prior to the release of the 2007 Interim guidelines (www.tbs-sct.gc.ca/ri-qr/documents/gl-ld/analys/analys-eng.pdf).

Footnote 9
COSEWIC 2006. COSEWIC assessment and status report on the Misty Lake Sticklebacks Gasterosteus sp. (Misty Lake Lentic Stickleback and Misty Lake Lotic Stickleback) in Canada. Committee on the Status of Endangered Wildlife in Canada. Ottawa. vii + 27 pp. (www.sararegistry.gc.ca/document/default_e.cfm?documentID=1447).

Footnote 10
COSEWIC 2007. COSEWIC assessment and status report on the basking shark Cetorhinus maximus (Pacific population) in Canada. Committee on the Status of Endangered Wildlife in Canada. Ottawa. vii + 34 pp. (www.sararegistry.gc.ca/document/default_e.cfm?documentID=1387).

Footnote 11
COSEWIC 2006. COSEWIC assessment and update status report on the west-slope cutthroat trout Oncorhynchus clarkii lewisi (British Columbia population and Alberta population) in Canada. Committee on the Status of Endangered Wildlife in Canada. Ottawa. vii + 67 pp. (www.sararegistry.gc.ca/document/default_e.cfm?documentID=1420).

Footnote 12
Recovery Potential Assessment for Winter Skate in the Southern Gulf of St. Lawrence (www.dfo-mpo.gc.ca/csas/Csas/status/2005/SAR-AS2005_063_E.pdf); Recovery Potential Assessment for the Winter Skate on the Eastern Scotian Shelf (www.dfo-mpo.gc.ca/csas/Csas/status/2005/SAR-AS2005_062_E.pdf).

Footnote 13
Recovery Potential Assessment for Winter Skate in the Southern Gulf of St. Lawrence (www.dfo-mpo.gc.ca/csas/Csas/status/2005/SAR-AS2005_063_E.pdf); Recovery Potential Assessment for the Winter Skate on the Eastern Scotian Shelf (www.dfo-mpo.gc.ca/csas/Csas/status/2005/SAR-AS2005_062_E.pdf).

Footnote 14
Ibid.

Footnote 15
Unpublished DFO Data.

Footnote 16
Beck, C.A., Iverson, S.J., Bowen, W.D., and Blanchard, W. 2007. Sex differences in grey seal diet reflect seasonal variation in foraging behaviours and reproductive expenditure: evidence from quantitative fatty acid signature analysis. J. Anim. Ecol. 76: 490–502.
Benoît, H.P., Swain, D.P., Bowen, W.D., Breed, G., Hammill, M.O., and
Harvey, V. Can predation by grey seals explain elevated natural mortality in three fish species in the southern Gulf of St. Lawrence? Submitted to ICES J. Mar. Sci. (Nov. 2009).

Footnote 17
Recovery Potential Assessment for Winter Skate in the Southern Gulf of St. Lawrence (www.dfo-mpo.gc.ca/csas/Csas/status/2005/SAR-AS2005_063_E.pdf); Recovery Potential Assessment for the Winter Skate on the Eastern Scotian Shelf (www.dfo-mpo.gc.ca/csas/Csas/status/2005/SAR-AS2005_062_E.pdf).
Additional Reference: Recovery potential assessment of 4T and 4VW winter skate (Leucoraja ocellata): biology, current status and threats (DFO CSAS Research Document 2006/003) [www.dfo-mpo.gc.ca/csas/Csas/DocREC/2006/RES2006_003_e.pdf].