Canada Gazette, Part I, Volume 152, Number 29: Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order

July 21, 2018

Statutory authority
Species at Risk Act

Sponsoring department
Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Atlantic salmon, inner Bay of Fundy population (hereafter, iBoF salmon) is an anadromous fish endemic to Canada. This population once bred in many rivers flowing into the inner Bay of Fundy; however, evidence of spawning is no longer found in most rivers. In May 2001, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the iBoF salmon and classified the species as an endangered species. In June 2003, upon the coming into force of the Species at Risk Act footnote 1 (SARA), the iBoF salmon was listed as endangered footnote 2 in Part 2 of Schedule 1 of that Act. Following an updated status report and reassessment by COSEWIC in April 2006, and a re-examination in November 2010, the status of the iBoF salmon was confirmed as endangered.

When a species has been listed as extirpated, endangered or threatened under SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister or ministers and included in the Species at Risk Public Registry (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. Freshwater critical habitat of the iBoF salmon was identified in the Recovery Strategy for the Atlantic salmon (Salmo salar), inner Bay of Fundy populations (2010) footnote 3 [Recovery Strategy].

As the competent ministers under SARA, the Minister of Fisheries and Oceans (MFO) and the Minister responsible for the Parks Canada Agency (Minister of Environment and Climate Change) are required to ensure that the critical habitat of the iBoF salmon 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. A description of the critical habitat located within Fundy National Park of Canada was published in the Canada Gazette, Part I, on August 7, 2010, pursuant to subsection 58(2) of SARA, triggering the prohibition against the destruction of that portion of the critical habitat in November 2010. The Critical Habitat of the Atlantic Salmon (Salmo salar), Inner Bay of Fundy Population Order (Order), made under subsections 58(4) and (5) of SARA, would trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat that is not in the Fundy National Park of Canada. The Order would afford the MFO the tool needed to ensure that the critical habitat of the iBoF salmon is legally protected and would enhance the protection already afforded to the iBoF habitat under existing legislation to support efforts towards the recovery of the species.

Background

The Government of Canada is committed to conserving biodiversity and ensuring the sustainable management of fish and fish habitat, 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 iBoF salmon spawns in those rivers of Nova Scotia and New Brunswick that drain into the Minas Basin and Chignecto Bay, as far south as the Mispec River in New Brunswick. After these salmon go to sea, they remain in the Bay of Fundy, at least until late autumn. The iBoF salmon is unlike other Atlantic salmon populations in that they are believed to remain mainly within the Bay of Fundy and Gulf of Maine area during the marine phase of their life cycle. These populations have declined by 90% or more in abundance: they were once estimated at 40 000 adults, but declined to fewer than 200 individuals in 2008.

Works, undertakings or activities (projects) likely to destroy the critical habitat of the iBoF salmon 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 iBoF salmon. Protection is offered by the Canada National Parks Act and its regulations for the portion of habitat that falls within the Fundy National Park of Canada.

The conservation of 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 functions such as filtering drinking water and capturing the sun’s energy, which is vital to all life.

Objectives

The overarching recovery goal, as set out in the Recovery Strategy, is to re-establish wild, self-sustaining populations as required to conserve the genetic characteristics of the remaining anadromous iBoF Atlantic salmon. The persistence of iBoF salmon is currently dependent on support from the Live Gene Bank (LGB) program, which is a spawning and rearing program designed to minimize the loss of genetic diversity and fitness in the remnant population. Evidence suggests that the rapid decline in numbers of iBoF salmon is likely due to a number of factors (current and historical) acting in the freshwater and the marine environment. However, it is believed that the iBoF salmon’s current status and ability to recover is primarily due to low marine survival, rather than an inability to spawn and live successfully in freshwater rivers and streams.

Potential marine threats identified to date include interactions with farmed and hatchery salmon, increased predator abundance, lack of or reduced forage species, temperature shifts that depress ocean productivity, altered migration routes leading to decreased survival, excessive illegal and/or incidental catch, and depressed population phenomena (lack of recruits to form effective schools). Potential threats to the species in the freshwater environment are thought to be historical and contemporary in nature and include changes in environmental conditions, contaminants, barriers to fish passage, and depressed population phenomena (as a result of abnormal behaviour due to low abundance or because of inbreeding depression).

Even though measurable progress has been made in achieving the goals, objectives and performance indicators presented in the Recovery Strategy, there remain a number of knowledge gaps about the iBoF salmon, including the sources of the unusually high marine mortality, which are important to understand for implementing recovery measures. Should marine survival return to healthier, pre-mid 1980s levels, then disturbances to freshwater habitat that affect the productive capacity of iBoF salmon will become the dominant factors in their recovery. The protection of critical habitat is an important component aimed at ensuring the recovery of the iBoF salmon, especially because of the low marine survival rates.

Pursuant to subsections 58(4) and (5) of SARA, the Order would trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the iBoF salmon that is not in the Fundy National Park of Canada, and would result in the critical habitat of the iBoF salmon being legally protected.

Description

The iBoF salmon require a variety of freshwater and marine habitats to complete a life cycle, and as a salmon grows to maturity, habitat requirements change. Freshwater iBoF salmon habitat consists of riffles, runs and staging or holding pools found below complete natural barriers in rivers. IBoF salmon streams are generally clean, cool, well oxygenated, and have bottom substrates composed of assorted gravel, cobble and boulder. Marine habitat requirements for iBoF salmon are less well known than those for freshwater. The only available indicator of marine habitat quality for Atlantic salmon is temperature. The marine temperature preference for Atlantic salmon ranges between 1 and 13 oC, with high preference for 4 to 10 oC areas. The infusion of cold oceanic water into the Bay of Fundy and the Gulf of Maine provides this temperature range and supports two of their principal prey species. The critical habitat for this species has been identified in the Recovery Strategy within select rivers in Nova Scotia and New Brunswick. The Order would 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 Recovery Strategy, and would result in the critical habitat of the iBoF salmon identified in the Recovery Strategy being legally protected.

The Order would provide an additional tool that enables the MFO to ensure that the habitat of the iBoF salmon is 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. The Order would 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 this Order, as there are no anticipated additional administrative costs imposed on businesses. The Order would 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 would be no administrative burden costs imposed on small business.

Consultation

The Recovery Strategy for the iBoF salmon, which identified critical habitat to the extent possible, was developed in cooperation and consultation with a broad range of groups, including Indigenous organizations from the inner Bay of Fundy area, industry (e.g. aquaculture, forestry, hydro power), and environmental non-governmental organizations. The proposed Recovery Strategy was published in the Public Registry for a 60-day public comment period from December 4, 2009, to February 4, 2010.

Information regarding broad process steps and progress on developing a critical habitat order for iBoF salmon was provided at meetings held in April and November 2012. A more detailed presentation at a meeting in April 2013 provided information on the requirement to develop an order for the protection of critical habitat; the administrative process; the critical habitat destruction prohibition; the activities likely to destroy the iBoF salmon critical habitat as outlined in the Recovery Strategy; existing protection and practices; and new critical habitat maps with geo-referenced coordinates. An additional consultation meeting was held with Indigenous organizations in December 2014. The critical habitat identified for the iBoF salmon is not located on land governed by any wildlife management boards.

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

Rationale

The population and distribution objectives for the iBoF salmon, as outlined in the Recovery Strategy, consist of the five-year target to conserve the genetic characteristics of the few remaining anadromous iBoF Atlantic salmon populations in order to progress towards re-establishing self-sustaining populations to their conservation levels in 10 river systems that contribute to the Live Gene Bank program. The long-term target, should marine survival increase, is to re-establish self-sustaining populations of iBoF Atlantic salmon to a conservation level of 9 900 spawning adults distributed throughout 19 river systems.

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) of SARA, failing which the MFO must make an order under subsections 58(4) and (5) of SARA. This order would 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 iBoF salmon are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements would therefore be imposed on stakeholders as a result of the coming into force of the Order.

Based upon the best evidence currently available and the application of the existing federal regulatory mechanisms, no additional compliance cost or administrative burden on Canadians and Canadian businesses is anticipated. Threats to the iBoF salmon critical habitat are managed and would 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 iBoF salmon 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.

In addition, proponents of works and developments in areas where iBoF salmon is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of iBoF salmon (section 32 of SARA).

Fisheries and Oceans Canada is currently not aware of any planned or ongoing activities that would 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 iBoF salmon 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 iBoF salmon. These standards and specifications are aligned with those that would be required once the Order comes into force. If new scientific information supporting changes to the iBoF salmon critical habitat becomes available at some point in the future, the Recovery Strategy will be updated as appropriate and this Order would apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition that would be triggered by the Order would provide a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the iBoF salmon 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 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 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) 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 iBoF salmon 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

Julie Stewart
Director
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, proposes to make the annexed Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order.

Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Julie Stewart, Director, Species at Risk Program, Department of Fisheries and Oceans, 200 Kent Street, Ottawa, Ontario K1A 0E6 (fax: 613-990-4810; email: SARA_LEP@dfo-mpo.gc.ca).

Ottawa, July 3, 2018

Dominic LeBlanc
Minister of Fisheries and Oceans

Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order

Application

1. Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy population — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act, more specifically, in Fundy National Park of Canada as described in Part 7 of Schedule 1 to the Canada National Parks Act.

Coming into force

2. This Order comes into force on the day on which it is registered.