Critical Habitat of the Northern Riffleshell (Epioblasma torulosa rangiana) Order: SOR/2019-327

Canada Gazette, Part II, Volume 153, Number 20

Registration
SOR/2019-327 September 11, 2019

SPECIES AT RISK ACT

Whereas the Northern Riffleshell (Epioblasma torulosa rangiana) 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 Northern Riffleshell (Epioblasma torulosa rangiana) Order.

Ottawa, September 6, 2019

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Northern Riffleshell (Epioblasma torulosa rangiana) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Northern Riffleshell (Epioblasma torulosa rangiana), 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 orders.)

Issues

The Northern Riffleshell (Epioblasma torulosa rangiana), Snuffbox (Epioblasma triquetra), Round Pigtoe (Pleurobema sintoxia), Salamander Mussel (Simpsonaias ambigua), and Rayed Bean (Villosa fabalis) are freshwater mussels that share common current and historical distributions and are facing similar threats to their continued existence in Canada. All five species are found in the Sydenham River in Ontario. In addition, Northern Riffleshell and Snuffbox are found in the Ausable River; Round Pigtoe is found in the St. Clair River delta, Grand and Thames rivers, and Bear Creek; and Rayed Bean has been found in the Thames River. The range of all five species has shrunk relative to historical limits, as they have all been extirpated from Lake Erie, Lake St. Clair, and the Detroit and Niagara rivers. Furthermore, many of the remaining populations have declined considerably from historical abundance levels.

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has assessed the five mussel species as follows:

In June 2003, the Northern Riffleshell, Snuffbox, Salamander Mussel, and Rayed Bean were listed as “endangered species” footnote 1 in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA), while Round Pigtoe was listed as “endangered” in Part 2 of Schedule 1 in July 2005.

When a wildlife species is listed as an endangered species in Schedule 1 of SARA, the prohibitions in sections 32 and 33 of SARA automatically apply:

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 habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean were identified in the final amended Recovery Strategy for the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean in Canada (2019) [the Amended Recovery Strategy].

As the competent minister under SARA, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean are 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 Northern Riffleshell (Epioblasma torulosa rangiana) Order, the Critical Habitat of the Snuffbox (Epioblasma triquetra) Order, the Critical Habitat of the Round Pigtoe (Pleurobema sintoxia) Order, the Critical Habitat of the Salamander Mussel (Simpsonaias ambigua) Order, and the Critical Habitat of the Rayed Bean (Villosa fabalis) Order (the orders), under subsections 58(4) and (5) of SARA. These orders trigger the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The orders afford the MFO the tool needed to ensure that the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean are legally protected, and enhance the protection already afforded to the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean habitats under existing legislation to support efforts towards the recovery of these species.

Background

The Government of Canada is committed to conserving biodiversity and ensuring the sustainable management of fish and fish 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 conservation of Canada’s natural aquatic ecosystems, and the 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 ecological functions such as filtering drinking water and capturing the sun’s energy, which are vital to all life.

The habitat requirements for the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean demonstrate a degree of commonality and, for the adult phase, have been identified as shallow riffle areas with clean, clear, moderate to swift-flowing water, and firm rubble/gravel/sand substrates (Salamander Mussel also requires mud substrates). The availability of these types of habitat appears to be the main limiting factor for these species. The larval (glochidial) stage of these species requires a suitable host fish (or a salamander host, in the case of the Salamander Mussel) for development to the juvenile stage, while juvenile habitat requirements are poorly understood.

Efforts to achieve the short-term objectives to meet the long-term recovery goals for these mussels are ongoing and are supported through measures outlined in the Amended Recovery Strategy. The identification and protection of critical habitat required to support the recovery goals is required under SARA.

The Report on the Progress of Recovery Strategy Implementation for the Wavyrayed Lampmussel, Northern Riffleshell, Snuffbox, Round Pigtoe, Mudpuppy Mussel and Rayed Bean in Canada for the Period 2006–2011 footnote 3 footnote 4 documents the progress of recovery strategy implementation for the five mussel species in Canada. It summarizes progress that Fisheries and Oceans Canada, Environment and Climate Change Canada, Ontario Ministry of Natural Resources and Forestry, Indigenous groups, environmental non-governmental organizations, and the broader scientific community have made towards achieving the goals and objectives set out in the Amended Recovery Strategy. Progress to date includes continued monitoring and the development of long-term monitoring programs, implementation of habitat improvement projects, activities to mitigate threats, refinement of host-fish knowledge, and increased public awareness of threats to the five mussel species.

Works, undertakings or activities likely to destroy any part of the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean are already subject to other federal regulatory mechanisms. The Fisheries Act protects all fish and fish habitat and provides protection against harmful alteration, disruption or destruction of fish habitat, therefore contributing to the protection of the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean.

Objectives

The long-term recovery goals, as set out in the Amended Recovery Strategy, are to prevent the extirpation of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean in Canada and to maintain/return healthy self-sustaining populations of

Efforts to meet the short-term objectives and long-term recovery goals are ongoing and supported by the measures described in the Amended Recovery Strategy. Current threats to the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean, as identified in the Amended Recovery Strategy, include declining water quality, loss of habitat and the introduction and spread of invasive species (e.g. Zebra Mussel [Dreissena polymorpha], Round Goby [Neogobius melanostomus]). The watersheds in southwestern Ontario, where the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean are still found, are predominantly agricultural with high nutrient and sediment inputs to the watercourse from adjacent lands. A number of existing or potential activities related to water use contribute to these threats. Populations of all five mussel species have been decimated throughout their historical ranges in the Great Lakes proper owing to the arrival and spread of Zebra Mussel. The parasitic nature of the reproductive cycles of these five mussel species necessitates a consideration of threats to the host species, as well as direct threats to the mussels.

Despite the measurable progress that has been made in achieving the objectives, recovery goals, and performance measures presented in the Amended Recovery Strategy, obtaining further information on specific threat thresholds, juvenile habitat requirements and host fish relationships is important for fully implementing all of the recovery measures. Critical habitat protection is important for ensuring the survival or recovery of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean, especially given their limited distributions.

Pursuant to subsections 58(4) and (5) of SARA, the orders trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean, and result in their critical habitats being legally protected.

Description

The critical habitats for these five mussel species have been identified in the Amended Recovery Strategy as being located within the Sydenham River in southwestern Ontario, and within the Ausable River for Northern Riffleshell and Snuffbox, the Thames River for Round Pigtoe and Rayed Bean, and the Grand River and Bear creek for Round Pigtoe. The orders trigger 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 Amended Recovery Strategy, and result in the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean being legally protected.

The orders provide an additional tool that enables the MFO to ensure that the habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean are protected against destruction, and to prosecute persons 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. These orders serve to

“One-for-One” Rule

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 these orders, as there are no anticipated additional administrative costs imposed on businesses. The orders will be implemented under existing processes.

Small business lens

The objective of the small business lens is to reduce regulatory costs for small businesses without compromising the health, safety, security and environment of Canadians.

The small business lens was considered, and it was determined that these orders do not impose any regulatory costs on small business.

Consultation

The first proposed version of the amended Recovery Strategy was posted on the Species at Risk Public Registry for a 60-day public comment period from August 25 to October 24, 2016, and included the identification of critical habitat. The proposed amended Recovery Strategy indicated that legal protection of critical habitat against destruction was anticipated and would be accomplished through a SARA critical habitat order made under subsections 58(4) and (5), which would invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat.

Notifications of the public comment period were sent to approximately 80 potentially affected non-governmental organizations and municipalities to inform these groups that the proposed amended Recovery Strategy was posted on the Public Registry and that the protection of the species’ critical habitat would be accomplished through the making of a critical habitat order. Groups were invited to comment on the proposed amended Recovery Strategy. Related information packages and follow-up emails were also sent to 16 potentially affected Indigenous communities and organizations. No comments, either opposing or supporting the proposed amended Recovery Strategy and/or the use of an order to protect critical habitat, were received from stakeholders or Indigenous groups.

In 2018, the proposed Recovery Strategy was amended again to include the identification of additional critical habitat. Owing to the identification of additional critical habitat, the amended Recovery Strategy was reposted as proposed for another 60-day public comment period from May 24 to July 23, 2018. The 2018 proposed amended Recovery Strategy also indicated that the critical habitats would be legally protected through SARA critical habitat orders made under subsections 58(4) and (5), which would trigger the prohibition in subsection 58(1) of SARA against the destruction of critical habitat. No comments were received during this consultation period.

In 2018, Fisheries and Oceans Canada developed the Action Plan for the Sydenham River in Canada: An Ecosystem Approach and the Action Plan for the Ausable River in Canada: An Ecosystem Approach, which include all five and two (Northern Riffleshell and Snuffbox) of the at-risk mussel species, respectively. Both action plans note it is anticipated that critical habitat will be legally protected from destruction through a critical habitat order made under subsections 58(4) and (5) of SARA, which will prohibit the destruction of the identified critical habitat. The proposed Sydenham River Action Plan was posted in the Public Registry for a 60-day public comment period from August 25 to October 24, 2016. The proposed Ausable River Action Plan was posted for a 60-day public comment period from May 24 to July 23, 2018. Notifications of the public comment period were sent by email or direct mail-out to stakeholders, governments, academia, environmental non-governmental organizations, and Indigenous groups. No comments were received during the 60-day public comment period regarding critical habitat or its protection by an order.

The Northern Riffleshell, Snuffbox, Salamander Mussel, and Rayed Bean’s critical habitats do not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act. Consultations were undertaken with the Minister of Indigenous Services as per SARA subsection 58(7) regarding the making of a critical habitat order for Round Pigtoe, which is located adjacent to reserves or other lands that are set apart for the use and benefit of a band under the Indian Act. Fisheries and Oceans Canada also contacted the First Nation by letter, voice mail and email correspondence, to provide them with the opportunity to review and comment on the proposed protection of critical habitat for Round Pigtoe. No concerns or comments were received from this consultation.

The critical habitats are not located on land managed by any wildlife management boards.

Overall, no significant concerns were raised during the consultation period with respect to critical habitats, and opposition to the orders is not anticipated.

Rationale

The population and distribution objectives are to return/maintain self-sustaining populations of the Northern Riffleshell to the East Sydenham and Ausable rivers; the Snuffbox to the East Sydenham and Ausable rivers; the Round Pigtoe to the East Sydenham, Thames and Grand rivers, Bear Creek, and St. Clair River delta; the Salamander Mussel to East Sydenham River; and the Rayed Bean to the East Sydenham and North Thames rivers.

The populations at these locations could be considered recovered when they have returned to historically estimated ranges and/or population densities and demonstrate active signs of reproduction and recruitment throughout their distribution. More quantifiable objectives (that may include consideration of extirpated populations where suitable habitats may be present) will be developed once necessary surveys and studies have been completed.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy that identifies critical habitat on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 5 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. These orders are 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 habitats.

Works, undertakings or activities likely to destroy the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed upon stakeholders or Indigenous groups as a result of the coming into force of these orders.

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 the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean’s critical habitats 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 these orders 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, their habitats 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 these five mussel species and their habitats is to advise all proponents of works, undertakings or activities to apply for the issuance of a permit or agreement authorizing a person to affect a listed wildlife 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

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

If these conditions cannot be met, the activity is not authorized and applicants may be advised to modify their works, undertakings or activities so as to enable these conditions to be met.

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 the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean’s critical habitats or jeopardizing the survival or recovery of these 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 habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean. These standards and specifications are aligned with those that are required now that the orders have come into force. If new scientific information supporting changes to Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean’s critical habitats becomes available, the Amended Recovery Strategy will be updated as appropriate and these orders will apply to the revised critical habitats once included in a final amended recovery strategy published in the Public Registry. The prohibition triggered by the orders provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean 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 34.4(2)(b) or 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 34.4 or 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, 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 34.4(1), 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 habitats of the Northern Riffleshell, Snuffbox, Round Pigtoe, Salamander Mussel, and Rayed Bean, 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.

Contact

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