Vol. 151, No. 25 — December 13, 2017
SOR/2017-267 December 4, 2017
SPECIES AT RISK ACT
Whereas the Rocky Mountain Sculpin (Cottus sp.) Eastslope populations is a wildlife species that is listed as a threatened species in Part 3 of Schedule 1 to the Species at Risk Act (see 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) (see 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, pursuant to subsection 58(7) of that Act, has consulted the Minister of Indian Affairs and Northern Development and the band with respect to the Order;
Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote c), makes the annexed Critical Habitat of the Rocky Mountain Sculpin (Cottus sp.) Eastslope Populations Order.
Ottawa, November 30, 2017
Minister of Fisheries and Oceans
Critical Habitat of the Rocky Mountain Sculpin (Cottus sp.) Eastslope Populations Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Rocky Mountain Sculpin (Cottus sp.) Eastslope populations, 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.)
The Rocky Mountain Sculpin is a small, bottom-dwelling fish associated with the headwaters of rivers and creeks. The Eastslope populations of the Rocky Mountain Sculpin has a restricted area of occurrence where it has been impacted by activities that alter the flow regime of the river causing habitat loss and degradation. In May 2005, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Rocky Mountain Sculpin, Eastslope populations, and the Governor General in Council designated them, in August 2006, as threatened (see footnote 1) under Schedule 1, Part 3 of the Species at Risk Act (see footnote 2) (SARA).
When a species has been listed as extirpated, threatened or endangered under SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included on the Species at Risk Public Registry (Public Registry). Critical habitat for Rocky Mountain Sculpin, Eastslope populations, was identified in the Recovery Strategy for the Rocky Mountain Sculpin (Cottus sp.), Eastslope populations, in Canada (2012) [Recovery Strategy].
As the competent minister under SARA, the Minister of Fisheries and Oceans (MFO) is required to ensure that the Rocky Mountain Sculpin’s, Eastslope populations, critical habitat is protected by provisions in, or measures under, SARA or any other Act of Parliament, or by the application of subsection 58(1) of SARA. This protection is accomplished through the making of the Critical Habitat of the Rocky Mountain Sculpin (Cottus sp.), Eastslope populations, Order (Order) under subsections 58(4) and (5) of SARA, which triggers the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1). The Order affords an additional tool for the protection of the Rocky Mountain Sculpin’s, Eastslope populations, critical habitat and enhances the ability of the MFO to ensure that the Rocky Mountain Sculpin’s, Eastslope populations, critical habitat is protected against destruction to support efforts towards the recovery of the species.
The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received Royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened.
The Rocky Mountain Sculpin is a small freshwater fish found only in North America. It occurs in the upper Missouri system from Alberta (i.e. the Milk River) south to southern Montana. Within Canada the species only occurs in the St. Mary and Milk river watersheds of Alberta, and in the Flathead River of British Columbia. Within Alberta, the Rocky Mountain Sculpin distribution appears to be limited to the St. Mary River system above the St. Mary Reservoir, and the upper Milk and North Milk rivers and is the only sculpin that occurs in these waters. The species’ current distribution has likely been determined by postglacial dispersal and preference for cooler upstream waters. These fish are locally abundant; however, the natural rarity of sculpins in Canada, in terms of both distribution and abundance, makes them vulnerable to extirpation.
Works, undertakings or activities (projects) likely to destroy the critical habitat of the Rocky Mountain Sculpin, Eastslope populations, are already subject to other federal regulatory mechanisms. Section 35 of the Fisheries Act prohibits serious harm to fish, which is defined in the Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that serious harm to fish encompasses destruction of fish habitat, the prohibition under section 35 contributes to the protection of critical habitat of the Rocky Mountain Sculpin, Eastslope populations.
Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. SARA also recognizes that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.” A review of the literature confirms that Canadians value the conservation of species and measures taken to conserve their preferred habitat. In addition, protecting species and their habitats helps preserve biodiversity - the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life.
The long-term population objective for Rocky Mountain Sculpin, Eastslope populations, is to protect and maintain self-sustaining populations within its current range in the St. Mary and Milk river watersheds in Canada. Efforts to achieve both the short-term and long-term goals are ongoing and are supported through measures outlined in the Recovery Strategy. A number of threats to Rocky Mountain Sculpin, Eastslope populations, are identified in the Recovery Strategy. The most significant threats may be those that could alter the flow regime of a river, causing habitat loss or impairment. Such threats may include water removal (e.g. for irrigation, municipal, recreational, industrial and domestic use), impoundment, bank stabilization, channelization, and changes in flow conditions. Other threats to the species’ habitat and survival include pollution and degradation of riparian areas. Some of the above threats may also act indirectly by altering faunal communities which in turn threaten the sculpin’s existence.
Water removal, diversions and reservoirs associated with irrigation, in combination with frequent droughts, likely pose the greatest threat to the Rocky Mountain Sculpin in southern Alberta. Drought is a natural occurrence in prairie streams and one to which the sculpin is somewhat adapted. Man-made changes to flow can exacerbate the impacts of natural drought on sculpin habitat. The impacts of drought are difficult to mitigate, but habitat loss or degradation caused by man-made changes can be mitigated. While there has been measurable progress towards meeting some of the goals, objectives and performance indicators presented in the Recovery Strategy, knowledge gaps remain in the information on Rocky Mountain Sculpin life history, biology, habitat requirements, population structure and abundance, and threats.
In accordance with section 58 of SARA, the Order made under subsections 58(4) and (5) of SARA will trigger the prohibition set out in subsection 58(1) against destruction of any part of the species’ critical habitat.
Rocky Mountain Sculpin, Eastslope populations, is found in cool, clear rivers and creeks with shallow runs and riffles that contain rock, gravel, or cobble substrate. Critical habitat for this species is identified as the riffles and runs in Lee Creek, as well as the St. Mary, North Milk, and Milk rivers, which support the rearing/nursing, feeding, cover and spawning life stages of the Rocky Mountain Sculpin, Eastslope populations. The Order triggers the prohibition against the destruction of the critical habitat, including the biophysical attributes identified in the Recovery Strategy and results in the critical habitat identified in the Recovery Strategy (see footnote 3) being legally protected.
The Order provides a tool that enables the MFO to protect the critical habitat of the Rocky Mountain Sculpin, Eastslope populations, against destruction under subsection 58(1) of SARA and to prosecute those who commit an offence under subsection 97(1) of SARA. To support compliance with the subsection 58(1) prohibition, SARA provides for penalties for contraventions, including fines or imprisonment, as well as alternative measures agreements and seizure and forfeiture of things seized or of the proceeds of their disposition. The protection provided by the prohibition triggered by this Order serves to
- communicate to Canadians the prohibition against the destruction of any part of the Rocky Mountain Sculpin’s, Eastslope populations, critical habitat, and where it applies, so that they can plan their activities within a regulatory regime that is clearly articulated;
- complement existing federal and provincial acts and regulations; and
- ensure that all human activities which may result in the destruction of critical habitat are managed to the extent required under SARA.
The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business.
The “One-for-One” Rule does not apply to this Order as there are no anticipated additional administrative costs on businesses. The Order will be implemented under existing processes.
Small business lens
The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians.
The small business lens does not apply to this Order, as there are no administrative burden costs on small business.
In 2012, 26 information packages (which included a summary of the Recovery Strategy that referred to areas identified as critical habitat) were sent to the province of Alberta, potentially affected Aboriginal communities, non-government organizations, stakeholders and municipalities. These groups were informed that the proposed Recovery Strategy was to be posted and were invited to comment. During the same year, an announcement was placed in newspapers with circulation in the area where the Rocky Mountain Sculpin, Eastslope populations, occurs or was historically found. This announcement informed landowners and the general public about the Recovery Strategy and requested their comments.
No significant comments were received on the proposed Recovery Strategy, and no significant concerns were noted with respect to critical habitat protection during the consultation period. Moreover, no concerns or issues were communicated by First Nations groups with regard to potential impacts of the Order.
The current recovery goal for the Rocky Mountain Sculpin, Eastslope populations, as outlined in the Recovery Strategy, is to protect and maintain self-sustaining populations within its current range in the St. Mary and Milk river watersheds. The focus of recovery planning should be on reducing, eliminating or managing existing or potential threats. Given that population numbers and habitat do not appear to require recovery or restoration, a conservation approach based on protecting and maintaining existing populations and their habitats is proposed in the Recovery Strategy.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the Public Registry. Critical habitat that is not in a place referred to in subsection 58(2) of SARA (see footnote 4) must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an Order under subsections 58(4) and (5) of SARA. Projects likely to destroy the critical habitat of the Rocky Mountain Sculpin, Eastslope populations, are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements would therefore be imposed upon stakeholders as a result of the coming into force of the Order.
Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits are anticipated to be negligible. The proposed Order is not anticipated to result in incremental costs to Canadian businesses and Canadians. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations. The compliance promotion and enforcement activities to be undertaken by the Department, in combination with the continuing outreach activities undertaken as part of the identification process of critical habitat during the development of the Recovery Strategy and Action Plan may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Aboriginal groups) that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.
Implementation, enforcement and service standards
DFO’s current practice for protection of the Rocky Mountain Sculpin, Eastslope populations, and its habitat is to direct all proponents of projects to apply for the issuance of a permit or agreement authorizing a person to affect a listed species so long as certain conditions are first met.
In addition, proponents of works and developments in areas where Rocky Mountain Sculpin, Eastslope populations, is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of Rocky Mountain Sculpin, Eastslope populations (SARA section 32).
DFO is currently not aware of any planned or ongoing activities that will need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts, in order to avoid destruction of Rocky Mountain Sculpin, Eastslope populations, critical habitat.
DFO will continue to implement SARA provisions and existing federal legislation under its jurisdiction in order to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the killing, harming and harassing of individuals of the Rocky Mountain Sculpin, Eastslope populations. These standards and specifications are aligned with those required when the Order is in force.
If new scientific information supporting changes to Rocky Mountain Sculpin, Eastslope populations, critical habitat becomes available at some point in the future, the Recovery Strategy and subsequent Action Plan will be updated as appropriate.
The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Rocky Mountain Sculpin, Eastslope populations, through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.
DFO provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to DFO for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.
In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA — that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or affecting the species is incidental to the carrying out of the activity. Furthermore, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to issuing SARA-compliant Fisheries Act authorizations, the MFO must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted, that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals, and that the activity will not jeopardize the survival or recovery of the species.
Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation, is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 35(1) or 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA.
Any person planning on undertaking an activity within the critical habitat of the Rocky Mountain Sculpin, Eastslope populations, should inform himself or herself as to whether that activity might contravene one or more of the prohibitions in SARA and, if so, should contact Fisheries and Oceans Canada.
Species at Risk Program
Fisheries, Oceans and the Canadian Coast Guard Canada
200 Kent Street
- Footnote a
S.C. 2002, c. 29
- Footnote b
S.C. 2015, c. 10, s. 60
- Footnote c
S.C. 2002, c. 29
- Footnote 1
A “threatened species” is defined under the Species at Risk Act as a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.
- Footnote 2
Species at Risk Act (S.C. 2002, c. 29)
- Footnote 3
- Footnote 4
Places referred to in subsection 58(2) are a national park of Canada named and described in Schedule 1 to the Canada National Parks Act, the Rouge National Urban Park established by the Rouge National Urban Park Act, a marine protected area under the Oceans Act, a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 and a national wildlife area under the Canada Wildlife Act.