Critical Habitat of the Round Hickorynut (Obovaria subrotunda) Order: SOR/2019-308
Canada Gazette, Part II, Volume 153, Number 18
SOR/2019-308 August 20, 2019
SPECIES AT RISK ACT
Whereas the Round Hickorynut (Obovaria subrotunda) 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;
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;
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 with the Minister of Indigenous and Northern Affairs and the band in question 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 footnote a, makes the annexed Critical Habitat of the Round Hickorynut (Obovaria subrotunda) Order.
Ottawa, August 12, 2019
Minister of Fisheries and Oceans
Critical Habitat of the Round Hickorynut (Obovaria subrotunda) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Round Hickorynut (Obovaria subrotunda) 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.)
Round Hickorynut (Obovaria subrotunda) and Kidneyshell (Ptychobranchus fasciolaris) are two freshwater mussel species found in southwestern Ontario. Since the invasion of the Great Lakes by dreissenid mussels (e.g. zebra mussels), the Canadian population of Round Hickorynut has declined by 75–95% (over the last 10 years), with an estimated 99% decline over the last 30 years. Furthermore, the geographical distribution of Kidneyshell has been reduced by 70% over that time span. In May 2003, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Round Hickorynut and Kidneyshell and classified these species as endangered. In January 2005, the Round Hickorynut and Kidneyshell were listed as endangered footnote 1 in Part 2 of Schedule 1 to the Species at Risk Act footnote 2 (SARA). Following an updated status report and reassessment by COSEWIC in May 2013, the status of the Round Hickorynut and Kidneyshell was confirmed as endangered.
When a wildlife species is listed as endangered or threatened 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 such species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of such species, or any part or derivative of such an individual; and
- prohibition against damaging or destroying the residence of one or more individuals of such 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 (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 Round Hickorynut and Kidneyshell was not identified in the 2006 Recovery Strategy for the Round Hickorynut (Obovaria subrotunda) and Kidneyshell (Ptychobranchus fasciolaris) in Canada (the 2006 Recovery Strategy). Critical habitat of the Round Hickorynut and Kidneyshell was identified in the 2013 amended Recovery Strategy for the Round Hickorynut (Obovaria subrotunda) and Kidneyshell (Ptychobranchus fasciolaris) in Canada (the Amended 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 Round Hickorynut and Kidneyshell 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 Round Hickorynut (Obovaria subrotunda) Order and the Critical Habitat of the Kidneyshell (Ptychobranchus fasciolaris) Order (the orders), under subsections 58(4) and (5) of SARA, which 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 tools needed to ensure that the critical habitat of Round Hickorynut and Kidneyshell are legally protected, as well as enhance the protection already afforded to Round Hickorynut and Kidneyshell habitat under existing legislation in order to support efforts toward the recovery of the species.
The Government of Canada is committed to conserving biodiversity and to 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 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.
Round Hickorynut and Kidneyshell have a Canadian distribution limited to Southwestern Ontario and can be separated into two major groups: lake populations (i.e. Great Lakes and connecting channels) and inland riverine populations. The largest Canadian population of Round Hickorynut occurs in the St. Clair River delta, while the largest Canadian population of Kidneyshell occurs in the Ausable River, while both species occur in the Sydenham River.
The Report on the Progress of Recovery Strategy Implementation for the Round Hickorynut (Obovaria subrotunda) and Kidneyshell (Ptychobranchus fasciolaris) in Canada for the Period 2006–2011 (2012) documents the progress of Recovery Strategy implementation for Round Hickorynut and Kidneyshell in Canada. It summarizes progress that Fisheries and Oceans Canada and the broader scientific community have made toward achieving the long-term recovery goals and population and distribution objectives set out in the Recovery Strategy. Research and monitoring activities were conducted between 2006 and 2011 to determine the habitat requirements for all life stages of Round Hickorynut and Kidneyshell. This information was used to inform the identification of critical habitat in the Amended Recovery Strategy.
Works, undertakings or activities likely to destroy any part of the critical habitat of Round Hickorynut and Kidneyshell are already subject to other federal regulatory mechanisms. The Fisheries Act protects all fish and fish habitat and provides protection against the harmful alteration, disruption or destruction of fish habitat, therefore contributing to the protection of the critical habitat of the Round Hickorynut and Kidneyshell.
The long-term recovery goals, as set out in the 2006 Recovery Strategy and Amended Recovery Strategy, are to
- (i) prevent the extirpation of Round Hickorynut and Kidneyshell in Canada;
- (ii) return healthy self-sustaining populations of Round Hickorynut to the East Sydenham River and St. Clair River delta;
- (iii) maintain healthy self-sustaining Kidneyshell populations in the Ausable and East Sydenham rivers while returning the St. Clair River delta and Thames River (including Medway Creek) populations to self-sustaining levels; and
- (iv) re-establish populations in historically occupied habitats, excluding areas where dreissenids have now made habitats unsuitable.
Specific short-term recovery objectives have also been identified in the 2006 Recovery Strategy and Amended Recovery Strategy to assist with meeting the long-term recovery goals. Efforts to meet the short-term objectives, and the long-term goals, are ongoing and supported by the measures described in the Action Plan for the Sydenham River in Canada: An Ecosystem Approach (2018) [the Sydenham River Action Plan].
Round Hickorynut and the Kidneyshell, like most mussel species, are sensitive to a wide variety of stressors. Current threats to Round Hickorynut and Kidneyshell, as identified in the Amended Recovery Strategy include invasive species (i.e. dreissenid mussels, Round Goby); siltation; declining water quality resulting from point (industrial and urban discharge) and non-point (herbicide, pesticide and surface run-off) sources; decline of host fish; urbanization; physical habitat loss/modification; impoundments; predation; and recreational activities. The presence of invasive dreissenid mussels is the main reason for the declines in lake populations, and the major current threat to the St. Clair River delta populations of Round Hickorynut and the Kidneyshell. Riverine populations of both mussel species are subject to different threats as compared to the lake populations, with the primary threats being decline in water quality and a general disappearance of suitable habitat. Because the reproductive cycle of these mussels depends on a host fish, threats to the host fish species must also be considered.
Critical habitat protection is important for ensuring the survival or recovery of Round Hickorynut and Kidneyshell, especially because of their very limited distribution in Canada. 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 habitat of Round Hickorynut and Kidneyshell, and results in the critical habitat of Round Hickorynut and Kidneyshell being legally protected.
The preferred habitat of the adult Round Hickorynut is medium- to large-sized rivers with sand and gravel substrates and steady, moderate flows at depths of up to 2 m. The preferred habitat of the adult Kidneyshell is small- to medium-sized rivers with riffle areas and substrates of firmly packed coarse gravel. Critical habitat has been identified for both Round Hickorynut and Kidneyshell in the East Sydenham River, and further critical habitat has been identified for Kidneyshell in the Ausable and Thames rivers (including Medway Creek). Additional areas of potential critical habitat for these species will be considered.
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 results in the critical habitat of Round Hickorynut and Kidneyshell identified in the Amended Recovery Strategy being legally protected.
The orders provide an additional tool that enables the MFO to ensure that the critical habitat of Round Hickorynut and Kidneyshell 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), 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
- communicate to Canadians the prohibition against the destruction of any part of the critical habitat of Round Hickorynut and Kidneyshell, and specify 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 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 regulatory costs to be offset with equal reductions in regulatory costs. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes regulatory costs on business.
The “One-for-One” Rule requirement does not apply to these orders, as there are no anticipated additional regulatory costs imposed on businesses. The orders will be implemented under existing processes.
Small business lens
The objective of the small business lens is to consider, and to the extent possible, reduce the 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 or compliance burden costs on small business.
The Amended Recovery Strategy included the identification of critical habitat and noted its anticipated protection through the application of the prohibition against the destruction of any part of the critical habitat of the species in subsection 58(1) of SARA. Fisheries and Oceans Canada organized information sessions in 2010 and 2012–2013 to inform groups and agencies (e.g. conservation authorities and municipalities) about the location and protection of critical habitat for Kidneyshell and Round Hickorynut and other mussels and fish in southern Ontario.
Consultations were undertaken with the Minister of Indigenous and Northern Affairs and two First Nations as per SARA subsection 58(7), as critical habitat for Round Hickorynut and Kidneyshell is adjacent to the reserve lands of these two communities. Fisheries and Oceans Canada contacted the two First Nations adjacent to the critical habitat of Kidneyshell and Round Hickorynut to provide them with the opportunity to review and comment on the proposed Amended Recovery Strategy and the protection of critical habitat. In February 2012, Fisheries and Oceans Canada conducted (in coordination with Environment Canada and the Parks Canada Agency) community consultation sessions with one of these First Nations on several recovery documents, including the Amended Recovery Strategy. Feedback and written comments from that community expressed concern that their activities might be impacted by the identification of critical habitat. Fisheries and Oceans Canada responded that critical habitat would not be identified on their reserve lands; therefore, activities they conduct on their lands would not be impacted by the prohibitions. Furthermore, critical habitat identified on their traditional lands in the lower Sydenham River would not impact their activities there.
In addition, letters (in September 2012) and related information packages (in October 2012) were sent to 16 Indigenous communities and organizations. One First Nation responded to the letter but did not provide any comments on the Amended Recovery Strategy or the critical habitat identified therein.
Consultation with a wildlife management board was not required, as there are no areas in which a wildlife management board is authorized by a land claims agreement to perform functions with respect to wildlife species that will be affected by the orders.
The Amended Recovery Strategy was posted as proposed in the Public Registry for comment from July 11 to September 9, 2013. No comments were received and no concern was noted with respect to critical habitat or its protection by orders during the consultation period. The final Amended Recovery Strategy was posted on October 25, 2013.
In August 2016, Fisheries and Oceans Canada published the proposed Sydenham River Action Plan, which includes Round Hickorynut and Kidneyshell, as well as several other species at risk. The Sydenham River Action Plan notes that critical habitat for these two species was identified to the extent possible in the Amended Recovery Strategy and that it is anticipated it will be legally protected through the use of critical habitat orders made under subsections 58(4) and (5), which will invoke the prohibition in subsection 58(1) against the destruction of critical habitat.
In March 2012, one First Nation was consulted on the Sydenham River Action Plan and provided comments that were taken into consideration when finalizing the document. No comments were received related to critical habitat. In addition, letters were sent to 13 Indigenous communities in January 2013. The proposed Sydenham River Action Plan was posted in the Public Registry for a 60-day comment period from August 25 to October 24, 2016. Notifications of the public comment period were sent by email or direct mail-out to 13 Indigenous organizations, one conservation authority, 12 environmental non-government organizations, 2 non-government organizations, and 18 municipal governments. No comments related to the identified critical habitat or its protection by orders were received during the 60-day public comment period. The final Sydenham River Action Plan was posted in the Public Registry on May 24, 2018.
The population and distribution objectives for these species are to return/maintain self-sustaining populations in the following locations: (1) St. Clair River delta and East Sydenham River (Round Hickorynut and Kidneyshell); and (2) Ausable River and Thames River (including Medway Creek) [Kidneyshell]. 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. An ecosystem approach, which includes Round Hickorynut and Kidneyshell, is currently underway to recover a number of aquatic species at risk in the Sydenham, Thames and Ausable rivers.
Even though measurable progress has been made in achieving the recovery goals and objectives and performance measures/indicators presented in the Amended Recovery Strategy, obtaining more information on the habitat requirements of these two species, identifying and/or confirming their host fishes, and further evaluating key threats represent important steps in recovery implementation. Critical habitat protection is an important component aimed at ensuring the survival or recovery of Round Hickorynut and Kidneyshell. Although larval mussels are passively distributed by their host fishes, adults are found in distinct habitat types, suggesting that survival is linked to local habitat conditions. Habitat conditions may be equally important during the juvenile stage, with respect to the availability of host fishes.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy or action plan that identifies critical habitat on the Public Registry. Critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 3 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 habitat.
Threats to Round Hickorynut and Kidneyshell critical habitat are managed and will continue to be managed through existing measures under federal legislation. No additional requirements are therefore imposed upon stakeholders or Indigenous groups as a result of the coming into force of these orders.
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 the Department, 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 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 Round Hickorynut and Kidneyshell, and its habitat, 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
- (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or
- (c) affecting the species is incidental to the carrying out of the activity.
Further, the pre-conditions 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 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 Round Hickorynut and Kidneyshell 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 Round Hickorynut and Kidneyshell. These standards and specifications are aligned with those that will be required once the orders come into force. If new scientific information supporting changes to Round Hickorynut and Kidneyshell critical habitat becomes available, the current Recovery Strategy will be updated as appropriate and these orders will apply to the revised critical habitat once included in a final amended recovery strategy published in the Public Registry. The prohibition triggered by these orders provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of Round Hickorynut and Kidneyshell 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 pre-conditions 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. Of note is 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 habitat of Round Hickorynut and Kidneyshell 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