Critical Habitat of the Salish Sucker (Catostomus catostomus ssp.) Order: SOR/2019-274
Canada Gazette, Part II, Volume 153, Number 16
SOR/2019-274 July 17, 2019
SPECIES AT RISK ACT
Whereas the Salish Sucker (Catostomus catostomusssp.) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;
Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
And whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;
Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Salish Sucker (Catostomus catostomus ssp.) Order.
Ottawa, July 12, 2019
Minister of Fisheries and Oceans
Critical Habitat of the Salish Sucker (Catostomus catostomus ssp.) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Salish Sucker (Catostomus catostomusssp.), 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 Salish Sucker (Catostomus catostomus ssp.) is a small-bodied freshwater fish that has been documented in 11 southwestern British Columbia watersheds, all in the Fraser Valley. The species has been in decline since at least the 1960s and is susceptible to continuing habitat destruction. In November 2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Salish Sucker and classified the species as an endangered species. In June 2005, the Salish Sucker was listed as endangered footnote 1 in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA). In 2012, COSEWIC completed an updated status report and reassessment and designated the Salish Sucker as a threatened species. footnote 3
When a wildlife species is listed as an extirpated species, an endangered species or a threatened species in Schedule 1 of SARA, the prohibitions in sections 32 and 33 of SARA automatically apply:
- prohibition against killing, harming, harassing, capturing or taking an individual of that species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of that species, or any part or derivative of such an individual;
- prohibition against damaging or destroying the residence of one or more individuals of that species.
In addition, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Species at Risk Public Registry (the Public Registry). The recovery strategy or action plan must include an identification of the species’ critical habitat, to the extent possible, based on the best available information. The critical habitat of the Salish Sucker was identified in the Recovery Strategy for the Salish Sucker (Catostomus sp. cf. catostomus) in Canada (2016) [the Recovery Strategy].
As the competent minister under SARA with respect to aquatic species other than individuals in or on federal lands administered by the Parks Canada Agency, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitat of the Salish Sucker is protected by provisions in, or measures under, SARA or any other Act of Parliament, or by the application of subsection 58(1) of SARA. This is accomplished through the making of the Critical Habitat of the Salish Sucker (Catostomus catostomus ssp.) Order (the Order), under subsections 58(4) and (5) of SARA, which triggers the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order provides the MFO with the tool needed to ensure that the critical habitat of the Salish Sucker is legally protected and enhances the protection already afforded to the Salish Sucker habitat under existing legislation 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.
Conserving Canada’s natural aquatic ecosystems, and protection and recovery of their 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.
In British Columbia, the Salish Sucker has been documented in 11 watersheds in the Fraser Valley, where it inhabits coastal streams and small rivers. The species has a clumped distribution, with only a few sites harbouring most individuals. Most individuals appear to restrict their movements to a single reach, but some individuals may travel more widely, as far as thousands of metres during the spawning period. Adults favour deep pool habitats and headwater marshes, while juveniles are often found in shallow pools or glides with cover. Salish Suckers generally spawn in riffles over fine gravel, but may also use groundwater upwellings in areas lacking riffle habitats.
Works, undertakings or activities (projects) likely to destroy any part of the critical habitat of the Salish Sucker are already subject to other federal regulatory mechanisms. Subsection 35(1) of the Fisheries Act prohibits serious harm to fish, which is defined in that 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 in subsection 35(1) of the Fisheries Act contributes to the protection of the critical habitat of the Salish Sucker.
The recovery goal, as set out in the Recovery Strategy, is to ensure the long-term viability of Salish Sucker populations throughout their natural distribution in Canada. Efforts to meet the recovery goal are ongoing and supported by the measures described in the Action Plan for the Nooksack Dace (Rhinichthys cataractae) and the Salish Sucker (Catostomus sp. cf. catostomus) in Canada (2017) [the Action Plan]. Current threats to the Salish Sucker, as identified in the Recovery Strategy, include hypoxia, physical destruction of habitat, habitat fragmentation, toxicity, sediment deposition, seasonal lack of water, increased predation, and riffle loss to beaver ponds. Of these threats, the Salish Sucker is most vulnerable to hypoxia and physical destruction of habitat. Severe hypoxia can kill large numbers of fish quickly and is likely occurring with increased frequency. Direct habitat destruction is the likely cause for the historical decline in Salish Sucker populations. Habitat fragmentation is considered a moderate threat to the Salish Sucker, but is also poorly understood. Toxicity, sediment deposition, seasonal lack of water, increased predation, and riffle loss to beaver ponds were all considered as moderate to minor concerns in the Recovery Strategy.
Critical habitat protection is an important component aimed at ensuring the survival or recovery of the Salish Sucker. Pursuant to subsections 58(4) and (5) of SARA, the Order triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Salish Sucker, and results in the critical habitat of the Salish Sucker being legally protected.
The preferred habitat of the Salish Sucker includes shallow and deep pools, glides and riffles. The critical habitat for this species has been identified in the Recovery Strategy and is located in occupied watersheds in southwestern British Columbia. The description of the critical habitat includes the reaches within those watersheds that consist of more than 50 m of continuous pool with a water depth exceeding 70 cm under summer low flow conditions. The Order triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical features and attributes identified in the Recovery Strategy, and results in the critical habitat of the Salish Sucker identified in the Recovery Strategy being legally protected.
The Order provides an additional tool that enables the MFO to ensure that the habitat of the Salish Sucker is protected against destruction, and to prosecute persons who commit an offence under subsection 97(1) of SARA. To support compliance with the prohibition in subsection 58(1) of SARA, SARA provides for penalties for contraventions, including fines or imprisonment, as well as alternative measures agreements, and seizure and forfeiture of things seized or of the proceeds of their disposition. This Order serves to
- communicate to Canadians the prohibition against the destruction of any part of the critical habitat of the Salish Sucker, and where it applies, so that they can plan their activities within a regulatory regime that is clearly articulated;
- complement existing federal acts and regulations; and
- ensure that all human activities that 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 imposed on businesses. The Order will be implemented under existing processes.
Small business lens
The objective of the small business lens is to reduce the regulatory costs for 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 imposed on small business.
Recovery Strategy — Regional consultation effort, responses, and proposed posting comments
The draft Recovery Strategy was consulted upon regionally between January 5 and February 11, 2011, which included the posting of the draft Recovery Strategy to Fisheries and Oceans Canada Pacific Region Consultations website for public comment. Community open houses and workshops were also held in several local communities in January and February 2011. Notification of the public comment period, open houses and workshops were sent to Indigenous groups, tribal councils, private landowners, and representatives from municipalities, regional districts, provincial ministries, federal agencies, and stakeholder groups. Over 100 people submitted comments and letters during regional consultations. Overall, key concerns regarding the Recovery Strategy included the potential impacts of critical habitat identification on agricultural activities and private land, potential changes in land use due to critical habitat identification, and issues related to drainage maintenance.
While the identification of critical habitat was consulted upon as part of regional Recovery Strategy consultations, these consultations did not specifically include the use of an order as a legal protection mechanism because that was not current practice at the time.
In 2012, an updated version of the Recovery Strategy was posted as proposed in the Public Registry for a 60-day public comment period from March 15 to May 14, 2012. This version of the Recovery Strategy included the identification of critical habitat and its anticipated legal protection mechanism through the application of a SARA critical habitat order, which will prohibit the destruction of the identified critical habitat. Only one set of minor comments were received during the 60-day public comment period, none of which were oppositional. The final Recovery Strategy was posted in the Public Registry on September 9, 2016.
Action Plan — Regional consultation effort, responses, and proposed posting comments
In 2012, Fisheries and Oceans Canada drafted a joint Action Plan for Nooksack Dace and Salish Sucker that was regionally consulted upon between February 6 and March 12, 2012. The draft Action Plan noted that critical habitat for these two species was identified to the extent possible in their respective recovery strategies and that it is anticipated that the critical habitat of the Salish Sucker will be legally protected through the use of a critical habitat order. Regional consultations entailed the online posting of the draft Action Plan to Fisheries and Oceans Canada Pacific Region Consultations website for public comment. Notifications were sent to Indigenous organizations, private landowners, representatives of municipal, provincial and federal governments, industry, community interest groups, and environmental non-governmental organizations. In addition, four face-to-face workshops and four community open house sessions were held in local communities. Several comments were received on the draft Action Plan during the regional consultation period. Feedback was similar to comments received in the 2011 regional consultations on the draft Recovery Strategy (i.e. relating to the potential socio-economic impacts of critical habitat protection), but the overall response was more positive, with several respondents expressing interest in participating in implementation, and increasing enforcement measures to protect the Salish Sucker and other species at risk within the area.
Comments received from the regional consultations were incorporated as appropriate into the proposed Action Plan, which was posted in the Public Registry for a 60-day public comment period from September 9 to November 8, 2016. No comments were received during the 60-day public comment period. The final Action Plan was posted in the Public Registry on April 26, 2017.
Salish Sucker critical habitat does not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act. The critical habitat is not located on land managed by any wildlife management boards. To the extent possible, the Recovery Strategy was prepared in cooperation with the Province of British Columbia as per subsection 39(1) of SARA.
Based on the consultation results, protecting critical habitat via an order may result in some public interest; however, it is not anticipated to generate significant controversy given the extensive consultation efforts to date.
The recovery goal, as set out in the Recovery Strategy, is to ensure the long-term viability of Salish Sucker populations throughout their natural distribution in Canada. The recovery objectives, as set out in the Recovery Strategy, are the following:
- (1) Prevent extirpation of Salish Suckers in each of the watersheds with extant populations by preventing net loss of recovery potential; and
- (2) Reach or exceed the following targets by 2020:
- (a) occupation of all instream critical habitats;
- (b) watershed-specific abundance targets for mature individuals; and
- (c) one or more source habitats with high density in each watershed.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 4 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) and other provisions of SARA, failing which, the MFO must make an order under subsections 58(4) and (5) of SARA. This Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.
Projects likely to destroy the critical habitat of the Salish Sucker are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed upon stakeholders as a result of the coming into force of this Order.
Based upon the best evidence currently available and the application of the existing regulatory mechanisms, no additional compliance cost or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to Salish Sucker critical habitat are managed and will continue to be managed through existing measures under federal legislation.
Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations.
The compliance promotion and enforcement activities to be undertaken by Fisheries and Oceans Canada, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups) that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.
Implementation, enforcement and service standards
Fisheries and Oceans Canada’s current practice for the protection of the Salish Sucker and its habitat is to advise all proponents of projects to apply for the issuance of a permit or agreement authorizing a person to affect a listed species or its critical habitat so long as certain conditions are first met. Under section 73 of SARA, the MFO may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals. Under subsection 73(2) of SARA, the agreement may be entered into, or the permit issued, only if the MFO is of the opinion that
- (1) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- (2) the activity benefits the species or is required to enhance its chance of survival in the wild; or
- (3) affecting the species is incidental to the carrying out of the activity.
Further, the preconditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to entering into an agreement or issuing a permit, the MFO must be of the opinion that
- (a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
- (b) 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
- (c) the activity will not jeopardize the survival or recovery of the species.
If the above conditions cannot be met, proponents are advised to not undertake their project, or to modify their project so as to meet these conditions.
Fisheries and Oceans Canada is currently not aware of any planned or ongoing activities that will need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts, so as to avoid destroying Salish Sucker critical habitat or jeopardizing the survival or recovery of the species.
Fisheries and Oceans Canada will continue to implement SARA provisions and existing federal legislation under its jurisdiction and to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the habitat of the Salish Sucker. These standards and specifications are aligned with those that will be required once the Order comes into force. If new scientific information supporting changes to Salish Sucker critical habitat becomes available, the Recovery Strategy will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Salish Sucker through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.
Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 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 the MFO 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 survival or recovery.
In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, as stated above. Furthermore, the preconditions set out in subsection 73(3) of SARA, as stated above, must also be satisfied.
Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 35(1) and 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA.
Any person planning on undertaking an activity within the critical habitat of the Salish Sucker, should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street