Critical Habitat of the Western Silvery Minnow (Hybognathus argyritis) Order: SOR/2019-2

Canada Gazette, Part II, Volume 153, Number 1

Registration

SOR/2019-2 December 19, 2018

SPECIES AT RISK ACT

Whereas the Western Silvery Minnow (Hybognathus argyritis) 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;

And whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Western Silvery Minnow (Hybognathus argyritis) Order.

Ottawa, December 14, 2018

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Western Silvery Minnow (Hybognathus argyritis) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Western Silvery Minnow (Hybognathus argyritis), 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.)

Issues

The Western Silvery Minnow (Hybognathus argyritis) is a small cyprinid species native to northwestern North America. In Canada, the Western Silvery Minnow has only been confirmed in the Milk River in southern Alberta. In November 2001, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Western Silvery Minnow and classified the species as a threatened species. In June 2003, the Western Silvery Minnow was listed as threatened footnote 1 in Part 3 of Schedule 1 to the Species at Risk Act footnote 2 (SARA). Following an updated status report and reassessment by COSEWIC in April 2008, the COSEWIC status of the Western Silvery Minnow changed from threatened to endangered. However, in November 2017, COSEWIC reassessed the Western Silvery Minnow and changed the status back to threatened based on new knowledge of its habitat requirements, trends, biology and threats. The species meets the criteria for endangered, but was assessed as threatened because there is no evidence of decline in abundance and there is uncertainty in the severity of threats.

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

In addition, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Species at Risk Public Registry (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 Western Silvery Minnow was posted in the Public Registry in February 2008. The Recovery Strategy was subsequently amended and posted in the Public Registry in June 2017. The critical habitat of the Western Silvery Minnow was identified in the Amended Recovery Strategy for the Western Silvery Minnow (Hybognathus argyritis) in Canada (2017) [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 Western Silvery Minnow 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 Western Silvery Minnow (Hybognathus argyritis) 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 the MFO the tool needed to ensure that the critical habitat of the Western Silvery Minnow is legally protected and enhances the protection already afforded to the Western Silvery Minnow habitat under existing legislation to support efforts towards the recovery of the species.

Background

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.

The Western Silvery Minnow is a member of the Minnow family (Cyprinidae). Within the Milk River in southern Alberta, it is typically found in the plains streams, in habitat that has limited flow conditions. Its distribution and habitat requirements are of interest to science in relation to the zoogeographic history and distribution of species subsequent to the Wisconsin Glaciation. While this species is moderately abundant, its distribution is very restricted.

The Report on the Progress of Recovery Strategy Implementation for Western Silvery Minnow (Hybognathus argyritis) in Canada for the Period 2008-2013 (2016) documents the progress of the 2008 Recovery Strategy implementation for the Western Silvery Minnow 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 Amended Recovery Strategy. Progress, within the five-year period following the publication of the 2008 Recovery Strategy, included scientific research to assess the recovery potential of the Western Silvery Minnow, as part of a recovery potential assessment, and to identify seasonal habitat selection and movement potential of Western Silvery Minnow and habitat suitability in the Milk River. This information was used to inform the identification of critical habitat in the Amended Recovery Strategy. Additionally, Fisheries and Oceans Canada has contributed to the collection of additional information on habitat requirements, trends and biology that was used to inform the 2017 COSEWIC reassessment of the Western Silvery Minnow.

Works, undertakings or activities (projects) likely to destroy any part of the critical habitat of the Western Silvery Minnow 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 Western Silvery Minnow.

Objectives

The recovery goal, as set out in the Amended Recovery Strategy, is to protect and maintain a self-sustaining population of Western Silvery Minnow within its current range within the Milk River in Canada. Efforts to achieve the recovery goal are ongoing and supported by the measures described in the Action Plan for the Milk River and St. Mary River Drainage Basins in Canada (2018) [the Action Plan]. Current threats to the Western Silvery Minnow, as identified in the Amended Recovery Strategy, include habitat loss or degradation such as changes in flow regime, dam construction and operation, and the cumulative impact of pollution, such as from point and non-point sources. Habitat loss, either through degradation or fragmentation, is a significant threat to the survival and recovery of the Western Silvery Minnow in Canada. Flow augmentation increases the water velocity but can decrease the amount of suitable habitat for Western Silvery Minnow in the Milk River. Degradation of riverbank habitat and water quality associated with livestock use of the flood plain may also impact Western Silvery Minnow habitat. Natural drought conditions alone may seriously stress minnow populations, and anthropogenic stresses could compound the severity of the effects of drought significantly.

Even though measurable progress has been made in achieving the goals, objectives and performance measures presented in the Amended Recovery Strategy, addressing knowledge gaps regarding basic life history, biology, population structure and abundance, habitat requirements and threats is important to ensure that the recovery goals of maintaining the population are achieved. Critical habitat protection is an important component aimed at ensuring the survival or recovery of the Western Silvery Minnow, because of its limited range in Canada.

Pursuant to subsection 58(4) and (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 Western Silvery Minnow, and results in the critical habitat of the Western Silvery Minnow being legally protected.

Description

The preferred habitat of the Western Silvery Minnow is in prairie streams, in areas with quiet water and sandy, muddy or debris-covered bottom, such as in the backwaters and pools of larger streams. Critical habitat for this species has been identified in the Amended Recovery Strategy in the Milk River of southern Alberta. 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 Amended Recovery Strategy, and results in the critical habitat of the Western Silvery Minnow identified in the Amended Recovery Strategy being legally protected.

The Order provides an additional tool that enables the MFO to ensure that the habitat of the Western Silvery Minnow 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

“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 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.

Consultation

To the extent possible, the Recovery Strategy was prepared in cooperation with the Province of Alberta as per subsection 39(1) of SARA. Fisheries and Oceans Canada, in cooperation with the Province of Alberta, assembled a group of experts from various levels of government, academia, consultants, and non-governmental organizations to form the Milk River Fish Species at Risk Recovery Team in March 2004. This team was responsible for drafting both the Recovery Strategy (2008) and the Amended Recovery Strategy (2017) for the Western Silvery Minnow.

The proposed Amended Recovery Strategy was posted in the Public Registry for a 60-day public comment period from September 9, 2016, to November 8, 2016. The proposed Amended Recovery Strategy indicated that it is anticipated that the critical habitat would be legally protected through a SARA Critical Habitat Order made under subsections 58(4) and (5), which will invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat.

Notifications of this public comment period were sent by email or direct mail out to the Government of Alberta (Alberta Environment and Parks), the Milk River Fish Species at Risk Recovery Team, five Indigenous groups, six municipal governments, representatives from academia, and nine environmental non-governmental organizations. No comments were received during the public comment period. The final Amended Recovery Strategy was posted in the Public Registry on June 1, 2017.

There is no Western Silvery Minnow critical habitat on reserves or any other lands that are set aside 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.

In 2018, Fisheries and Oceans Canada published the Action Plan for the Milk River and St. Mary Drainage Basins in Canada, which includes two species at risk, the Western Silvery Minnow and the Rocky Mountain Sculpin. The Action Plan noted that critical habitat for these two species was identified to the extent possible in their respective Recovery Strategies and advised readers of its anticipated legal protection through a Critical Habitat Order made under subsections 58(4) and (5). The proposed Action Plan was posted in the Public Registry for a 60-day public comment period from April 12, 2017, to June 11, 2017. Notifications of the public comment period were sent by email or direct mail out to the Government of Alberta, the Milk River Fish Species at Risk Recovery Team, governments, academia, environmental non-governmental organizations, and Indigenous groups. Two comments were received during the 60-day public comment period and a third comment was received four months after the public comment period; no comments on critical habitat were received.

Overall, no 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 of the Recovery Strategy are to (1) quantify and maintain current population levels; (2) refine knowledge on the essential functions, features and attributes of critical habitat for various life stages of the Western Silvery Minnow; and (3) identify potential threats from human activities and ecological processes and develop plans to avoid, eliminate or mitigate threats. Efforts to achieve the population and distribution objectives for Western Silvery Minnow are ongoing and are supported through measures outlined in the Action Plan. The identification and protection of critical habitat required to support this recovery goal is required under SARA. Furthermore, threats to critical habitat, such as habitat degradation and pollution, must still be reduced and further research and monitoring must be conducted to ensure that population and distribution objectives are achieved. The population and distribution objectives proposed in the Amended Recovery Strategy may be updated as new information on the Western Silvery Minnow and its habitat becomes available.

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 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. 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 Western Silvery Minnow 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 cost or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to Western Silvery Minnow 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 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 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 Western Silvery Minnow 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.

Further, the preconditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to entering into an agreement or issuing a permit, the MFO must be of the opinion that

If the above conditions cannot be met, proponents are advised to not undertake their project, or to modify their project so as to meet these conditions.

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 Western Silvery Minnow 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 Western Silvery Minnow 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 Western Silvery Minnow critical habitat becomes available, the Amended 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 Western Silvery Minnow 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 survival or recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, as stated above. Furthermore, the preconditions set out in subsection 73(3) of SARA, as stated above, must also be satisfied.

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 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 Western Silvery Minnow, 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