Vol. 151, No. 25 — December 13, 2017
SOR/2017-264 December 4, 2017
SPECIES AT RISK ACT
Whereas the Spotted Gar (Lepisosteus oculatus) is a wildlife species that is listed as a threatened species in Part 3 of Schedule 1 to the Species at Risk Act (see footnote a);
Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
Whereas a portion of the critical habitat of that species is in a place referred to in subsection 58(2) (see footnote b) of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;
And whereas, pursuant to subsection 58(5) of that Act, the Minister of Fisheries and Oceans has consulted with the Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, with respect to the annexed Order;
Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote c), makes the annexed Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order.
Ottawa, November 30, 2017
Minister of Fisheries and Oceans
Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Spotted Gar (Lepisosteus oculatus) — 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 Point Pelee National Park of Canada as described in Part 5 of Schedule 1 to the Canada National Parks Act and Big Creek National Wildlife Area as described in Part IV of Schedule I to the Wildlife Area Regulations.
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 Spotted Gar (Lepisosteus oculatus) is a freshwater fish species with a very limited range in Canada, where it is only known to inhabit three coastal wetlands in Lake Erie. Previously assessed as special concern, in November 2000, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) reassessed the Spotted Gar as threatened. The Spotted Gar was listed as threatened (see footnote 1) under Schedule 1, Part 3, of the Species at Risk Act (see footnote 2) (SARA) when it came into force in June 2003. Following an updated status report, COSEWIC reassessed the Spotted Gar as endangered (see footnote 3) in November 2015.
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(s) and included in the Species at Risk Public Registry (Public Registry). Critical habitat for the Spotted Gar was identified in the Recovery Strategy for the Spotted Gar (Lepisosteus oculatus) in Canada (2012). (see footnote 4) A description of the critical habitat located within Point Pelee National Park of Canada and the Big Creek Unit of Big Creek National Wildlife Area was published in the Canada Gazette, Part I on October 15, 2016, pursuant to subsection 58(2) of SARA (http://www.gazette.gc.ca/rp-pr/p1/2016/2016-10-15/pdf/g1-15042.pdf ( B)) [PDF, 1 090 KB].
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 Spotted Gar 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 will be accomplished through the making of the Critical Habitat of the Spotted Gar (Lepisosteus oculatus) 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 affords an additional tool to protect the critical habitat of the Spotted Gar and enhances the ability of the Minister of Fisheries and Oceans to ensure that this critical habitat is protected against destruction to support efforts towards the recovery of the species.
The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and, to manage species of special concern to prevent them from becoming endangered or threatened.
The Spotted Gar is a relatively large, predatory fish species with a long, narrow body and elongated snout with many sharp teeth. The Spotted Gar is found only in North America where it has a wide, but disjunct distribution in the Mississippi, Great Lakes and Gulf Coast drainages of eastern North America, occurring in 18 states and Ontario. Although globally secure, the Spotted Gar is at the northern extent of its range in southern Ontario and was never common. Extant populations occur within three shallow, heavily vegetated coastal wetlands of Lake Erie (Long Point Bay/Big Creek National Wildlife Area, Point Pelee National Park of Canada and Rondeau Bay).
Works, undertakings or activities (projects) likely to destroy the critical habitat of the Spotted Gar are already subject to other federal regulatory mechanisms. Section 35 of the Fisheries Act, prohibits serious harm to fish, which is defined in the Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that serious harm to fish encompasses destruction of fish habitat, the prohibition under section 35 of the Fisheries Act contributes to the protection of the critical habitat of the Spotted Gar. Protection is also offered by the Canada National Parks Act and its regulations for the portion of habitat that falls within Point Pelee National Park of Canada, and by the Wildlife Area Regulations made pursuant to the Canada Wildlife Act for the portion of habitat that falls within the Big Creek Unit of Big Creek National Wildlife Area.
Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. SARA also recognizes that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.” A review of the literature confirms that Canadians value the conservation of species and measures taken to conserve their preferred habitat. In addition, protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life.
The long-term recovery goal (greater than 20 years), set out in the Recovery Strategy, is to protect, enhance and maintain viable Spotted Gar populations within the three coastal wetlands of Lake Erie, where extant populations occur. Efforts to achieve this recovery goal are ongoing and involve a number of recovery objectives outlined in the Recovery Strategy. Current threats to the Spotted Gar, as identified in the Recovery Strategy, are related to habitat modifications (e.g. dredging, infilling along shorelines, shoreline hardening, channelization and drainage works, installation of docks and piers), aquatic vegetation removal, sediment and nutrient loadings, exotic species, climate change, and barriers to movement, as well as fishing (incidental harvest). While there has been measurable progress towards meeting the recovery goal and objectives and performance indicators presented in the Recovery Strategy, additional information on the species’ ecology, population dynamics and distribution is required. Protection of critical habitat is an important component of ensuring the recovery of the Spotted Gar, particularly given its extremely limited distribution.
Pursuant to subsection 58(4) 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 Spotted Gar.
The Spotted Gar inhabits shallow, warm waters of coastal wetlands with abundant vegetation. Critical habitat has been identified within three coastal wetlands of Lake Erie (Long Point Bay/Big Creek National Wildlife Area, Point Pelee National Park of Canada and Rondeau Bay). The Order triggers the prohibition in subsection 58(1) of SARA against the destruction of the critical habitat, including the biophysical attributes identified in the Recovery Strategy, and result in the critical habitat identified in the Recovery Strategy being legally protected.
The Order provides an additional tool that enables the MFO to ensure that the critical habitat of the Spotted Gar 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. This Order serves to
- communicate to Canadians the prohibition against the destruction of any part of the Spotted Gar’s critical habitat, 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 which may result in the destruction of critical habitat are managed to the extent required under SARA.
Fisheries and Oceans Canada’s current practice for the protection of the Spotted Gar and its habitat is to direct all proponents of projects to apply for the issuance of a permit or agreement authorizing a person to affect a listed species 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 Minister is of the opinion that
- the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- the activity benefits the species or is required to enhance its chance of survival in the wild; or
- affecting the species is incidental to the carrying out of the activity.
In addition, proponents of works and developments in areas where Spotted Gar is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of Spotted Gar (section 32 of SARA).
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, to avoid destruction of Spotted Gar critical habitat or jeopardy to the survival or recovery of the species.
The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business.
The “One-for-One” Rule does not apply to this Order, as there are no anticipated additional administrative costs on businesses. The Order will be implemented under existing processes.
Small business lens
The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians.
The small business lens does not apply to this Order, as there are no administrative burden costs on small business.
All potentially affected Aboriginal communities in southern Ontario were contacted during the development of the proposed recovery strategy for the Spotted Gar. Many Aboriginal and Métis communities received a letter in April 2007 regarding a recovery strategy for the Spotted Gar; however, given the passage of time and the addition of critical habitat to the recovery strategy, a new letter was sent to invite their comments on the updated recovery strategy. This letter was sent in advance of the proposed recovery strategy being posted on the SARA Registry.
Consultation on the proposed recovery strategy for the Spotted Gar included mail outs of information packages, which included a summary of the recovery strategy that referred to areas identified as critical habitat. These information packages were sent out to 18 potentially affected Aboriginal communities and organizations, and several non-government organizations, municipalities and other stakeholders. These groups were informed that the proposed recovery strategy would be posted and each group was invited to comment.
In addition, an announcement was prepared and placed in newspapers with circulation in the area where the Spotted Gar occurs, or was historically found, to inform landowners and the general public about the recovery strategy and to request their comments. As a result, meetings were held with two First Nation communities. No major concerns were identified at these meetings.
The proposed recovery strategy was posted on the SARA Public Registry for public comment from April 19, 2012, to June 18, 2012. The proposed recovery strategy document stated that critical habitat would be legally protected against destruction through the application of subsection 58(1) of SARA.
No significant comments were received on the proposed recovery strategy and no significant concern was noted with respect to critical habitat during the consultation period.
In addition to consultations, signs with both stewardship and legislative messaging regarding protection under SARA were posted at some habitat locations in 2010 to inform local residents of the existence and importance of habitat for the Spotted Gar. In addition, Fisheries and Oceans Canada organized information sessions in 2010, 2011, 2012 and 2013 to inform groups and agencies (e.g. conservation authorities, drainage superintendents and municipalities) about the location and protection of critical habitat for Spotted Gar and other fishes in southwestern Ontario.
Consultation was completed by June 18, 2012, after having engaged all affected Aboriginal communities in southern Ontario. No negative comments with respect to the use of a Critical Habitat Order were received.
The current recovery goal for the Spotted Gar, as outlined in the Recovery Strategy, is to protect, enhance and maintain viable Spotted Gar populations within the three coastal wetlands of Lake Erie where extant populations occur. The present long-term recovery goal is based on current information. If additional extant populations (e.g. East Lake, Hamilton Harbour) of the Spotted Gar are found and/or repatriating an extirpated population is deemed to be feasible, the recovery goal will be revised. Over the next five-year period, the population and distribution objective is to maintain current distributions and densities of extant populations of Spotted Gar in the three coastal wetlands of Lake Erie. More quantifiable objectives relating to individual populations are not possible at this time, but will be developed once the necessary sampling 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 on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA (see 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) of SARA, failing which, the Minister 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 Spotted Gar 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 the Order.
Based upon the best evidence currently available and the application of the existing regulatory mechanisms, no additional compliance costs or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to Spotted Gar 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 are anticipated to be negligible. The proposed Order is not anticipated to result in incremental costs to Canadian businesses and Canadians. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs for which would be absorbed through existing funding allocations. The compliance promotion and enforcement activities to be undertaken by the Department, in combination with the continuing outreach activities undertaken as part of the identification process of critical habitat during the development of the Recovery Strategy and action plan may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Aboriginal groups) that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.
Implementation, enforcement and service standards
Fisheries and Oceans Canada will continue to implement SARA provisions and existing federal legislation under its jurisdiction in order to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the Spotted Gar habitat. 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 Spotted Gar critical habitat becomes available at some point in the future, the Recovery Strategy will be updated as appropriate. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Spotted Gar 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 Minister of Fisheries and Oceans 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 Minister of Fisheries and Oceans 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 must also be satisfied. This means that prior to issuing SARA-compliant Fisheries Act authorizations, the Minister of Fisheries and Oceans 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 Spotted Gar 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, Oceans and the Canadian Coast Guard Canada
200 Kent Street
- Footnote a
S.C. 2002, c. 29
- Footnote b
S.C. 2015, c. 10, s. 60
- Footnote c
S.C. 2002, c. 29
- Footnote 1
A “threatened” species is defined under the Species at Risk Act as a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.
- Footnote 2
S.C. 2002, c. 29.
- Footnote 3
An “endangered” species is defined under the Species at Risk Act as a wildlife species that is facing imminent extirpation or extinction.
- Footnote 4
- Footnote 5
Places referred to in subsection 58(2) are a national park of Canada named and described in Schedule 1 to the Canada National Parks Act, the Rouge National Urban Park established by the Rouge National Urban Park Act, a marine protected area under the Oceans Act, a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 and a national wildlife area under the Canada Wildlife Act.