Critical Habitat of Carmine Shiner (Notropis percobromus) Order: SOR/2018-183
Canada Gazette, Part II, Volume 152, Number 19
September 7, 2018
SPECIES AT RISK ACT
Whereas the Carmine Shiner (Notropis percobromus) is a wildlife species that is listed as a threatened species in Part 3 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;
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 Carmine Shiner (Notropis percobromus) Order.
Ottawa, September 4, 2018
Minister of Fisheries and Oceans
Critical Habitat of Carmine Shiner (Notropis percobromus) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Carmine Shiner (Notropis percobromus), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.
Coming into force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The Carmine Shiner (Notropis percobromus) is found in the Whitemouth, Birch and Winnipeg river watersheds in Manitoba. While there is no evidence that Carmine Shiner populations have declined over time, because of its limited distribution and abundance, the species may be sensitive to future anthropogenic disturbances. In November 2001, and in April 2006, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Carmine Shiner and classified the species as a threatened species. Following an updated status report and reassessment by COSEWIC in April 2018, the status of the Carmine Shiner changed from threatened to endangered.
In June 2003, the Carmine Shiner was listed as threatened footnote 1 in Part 3 of Schedule 1 to the Species at Risk Act (SARA), footnote 2 and maintains that status to date. 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). 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 first recovery strategy for the Carmine Shiner was posted in the Public Registry in 2008. The Recovery Strategy was subsequently revised and posted in the Public Registry in 2013. The critical habitat of the Carmine Shiner is identified in the Recovery Strategy for the Carmine Shiner (Notropis percobromus) in Canada (2013) footnote 3 [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 Carmine Shiner 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 Carmine Shiner (Notropis percobromus) Order (the Order) under subsections 58(4) and 58(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 the MFO the tool needed to ensure that the critical habitat of the Carmine Shiner is legally protected and enhances the protection already afforded to the Carmine Shiner habitat under existing legislation to support efforts towards the recovery of the species.
The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened.
Conserving Canada’s natural aquatic ecosystems, and protection and recovery of 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.
Carmine Shiners are slender, elongate minnows that are part of the Rosyface Shiner species complex, which is distributed widely throughout highland and glaciated regions of eastern North America. In Canada, the Carmine Shiner occurs only in Manitoba, at the northwestern limit of the species’ range.
The Report on the Progress of Recovery Strategy Implementation for the Carmine Shiner (Notropis percobromus) in Canada for the Period 2008–2013 documents the progress of the Recovery Strategy implementation for the Carmine Shiner in Canada. It summarizes progress that Fisheries and Oceans Canada and the broader scientific community have made towards achieving the goals and objectives set out in the Recovery Strategy. Progress to date includes extensive sampling and survey work to help identify and refine critical habitat, working with experts to assess the species’ recovery potential, revising the 2008 Recovery Strategy to identify critical habitat, and outreach activities at the local, regional and national levels.
Works, undertakings or activities (projects) likely to destroy the critical habitat of the Carmine Shiner 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 Carmine Shiner.
The recovery goal, as set out in the Recovery Strategy, is to maintain self-sustaining populations of the Carmine Shiner by reducing or eliminating potential threats to the species and its habitats. Efforts to meet the recovery goal are ongoing and supported by the measures described in the Action Plan for the Carmine Shiner (Notropis percobromus) in Canada (Action Plan). Threats to the Carmine Shiner, as identified in the Recovery Strategy, include overexploitation, species introductions, habitat loss/degradation, and pollution. Species introductions and habitat loss/degradation associated with flow alteration, shoreline/riparian development, landscape changes and climate change are the most significant threats to the survival of these fish.
Even though measurable progress has been made towards meeting some of the recovery goals, objectives and performance measures presented in the Recovery Strategy, addressing knowledge gaps regarding the species’ biology, ecology, and life processes, habitat requirements and threats is important for implementing recovery measures. Critical habitat protection is an important component aimed at ensuring the recovery of the Carmine Shiner, especially given its restricted distribution.
Pursuant to subsection 58(4) and 58(5) of SARA, the Order triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Carmine Shiner, and results in the critical habitat of the Carmine Shiner being legally protected.
The preferred habitat of the Carmine Shiner is at midwater depths of clear, brown-coloured, fast-flowing creeks and small rivers with clean gravel or rubble substrates, usually at the foot of riffles. The critical habitat for this species has been identified in the Recovery Strategy in the Whitemouth and Birch rivers in Manitoba. The Order triggers the prohibition against the destruction of any part of the critical habitat in subsection 58(1) of SARA, including the biophysical features and attributes identified in the Recovery Strategy, and results in the critical habitat of the Carmine Shiner identified in the Recovery Strategy being legally protected.
The Order provides an additional tool that enables the MFO to ensure that the habitat of the Carmine Shiner 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 critical habitat of the Carmine Shiner, 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.
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.
The initial 2008 Recovery Strategy, which did not include the identification of critical habitat, was developed in cooperation with a broad range of conservation, regulatory and stakeholder interests, including the Province of Manitoba, non-governmental organizations, industry groups, academia, and municipal governments.
In 2013, the Recovery Strategy was amended to include the identification of critical habitat. The amended Recovery Strategy was published in the Public Registry for a 60-day public comment period from July 11, 2013, to September 9, 2013. Notifications of the public comment period were sent by direct mail-out to potentially affected stakeholders, including Indigenous communities, municipalities and a cottage owners association in proximity of the Carmine Shiners’ critical habitat. No comments were received during the public comment period. The final Recovery Strategy was posted to the Public Registry on October 24, 2013.
On January 30, 2017, the Action Plan was published as proposed in the Public Registry for a 60-day consultation period from April 18, 2017, to June 17, 2017. The Action Plan notes that it is anticipated that critical habitat for the species will be legally protected from destruction through a critical habitat order made under subsections 58(4) and 58(5) which will invoke the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat. No comments were received during the comment period.
There is no Carmine Shiner critical habitat on Indigenous reserves or any other land that are set apart for the use and benefit of a band under the Indian Act. The critical habitat identified is not located on land managed by any wildlife management boards.
The Province of Manitoba participated in the development of the Recovery Strategy, including the identification of critical habitat. Comments were also received from the Province on a draft version prior to its posting in the Public Registry.
Overall, no significant concerns were raised during the consultation period with respect to critical habitat, and opposition to the Order is not anticipated.
The long-term recovery goal for the Carmine Shiner, as outlined in the Recovery Strategy, is to maintain self-sustaining populations of the Carmine Shiner by reducing or eliminating potential threats to the species and its habitat. This goal would be achieved through mitigating existing or potential threats to the species and through increasing our knowledge of the species biology, ecology, and life history to improve our ability to manage and protect the species and its habitat.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy in the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 4 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) and other provisions of SARA, failing which, the MFO must make an Order under subsections 58(4) and 58(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 Carmine Shiner are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed upon stakeholders as a result of the coming into force of this Order.
Based upon the best evidence currently available and the application of the existing regulatory mechanisms, no additional compliance costs or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to the Carmine Shiner 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 from the making of this Order are anticipated to be negligible. The 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 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 identification process of critical habitat, 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 protection of the Carmine Shiner 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 residence 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
- 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 the Carmine Shiner is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of the Carmine Shiner (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 the Carmine Shiner critical habitat or jeopardy to the survival or recovery of the species.
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 Carmine Shiner 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 Carmine Shiner critical habitat becomes available at some point in the future, the Recovery Strategy will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Carmine Shiner 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 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 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 under subsections 35(1) or 36(3) of the Fisheries Act are higher than the maximum fines for a contravention of subsection 58(1) of SARA.
Any person planning on undertaking an activity within the critical habitat of the Carmine Shiner 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