Critical Habitat of the Western Brook Lamprey (Lampetra richardsoni) Morrison Creek Population Order: SOR/2019-123

Canada Gazette, Part II, Volume 153, Number 10

Registration

SOR/2019-123 May 6, 2019

SPECIES AT RISK ACT

Whereas the Western Brook Lamprey (Lampetra richardsoni) Morrison Creek population 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 action plan 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 Brook Lamprey (Lampetra richardsoni) Morrison Creek Population Order.

Ottawa, May 3, 2019

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Western Brook Lamprey (Lampetra richardsoni) Morrison Creek Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Western Brook Lamprey (Lampetra richardsoni) Morrison Creek population, which is identified in the action plan 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 Brook Lamprey – Morrison Creek Population (Lampetra richardsoni) is a small freshwater fish endemic to the Morrison Creek watershed on eastern Vancouver Island, British Columbia. The species has a rare life history in which both a parasitic (L. richardsoni var. marifuga) type and a non-parasitic (L. richardsoni) type are produced. No quantitative population estimates exist for the Morrison Creek Lamprey; however, catch rates of the parasitic type of Morrison Creek Lamprey have decreased over the past 30 years. In April 1999, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Morrison Creek Lamprey as a threatened species. In May 2000, COSEWIC reassessed the species as an endangered species. In June 2003, the Morrison Creek Lamprey was listed as endangered footnote 1 on the List of Wildlife Species at Risk (Schedule 1, Part 2) of the Species at Risk Act footnote 2 (SARA). COSEWIC re-examined and confirmed the assessment of endangered in April 2010, and renamed the species Western Brook Lamprey – Morrison Creek Population (Lampetra richardsoni). Hereinafter, the species will be referred to as the “Morrison Creek Lamprey.” footnote 3

When a wildlife species is listed as an endangered species or a threatened species in Schedule 1 of SARA, the 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 (the 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 the Morrison Creek Lamprey was identified in the Action Plan for the Western Brook Lamprey – Morrison Creek Population (Lampetra richardsoni) in Canada (2018) [the Action Plan].

As the competent minister under SARA, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitat of the Morrison Creek Lamprey 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 Brook Lamprey (Lampetra richardsoni) Morrison Creek Population 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 Morrison Creek Lamprey is legally protected and enhances the protection already afforded to the Morrison Creek Lamprey 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 Morrison Creek Lamprey requires stream habitat during all of their life cycle. Morrison Creek is a small tributary fed by springs and wetlands, which keeps the water at a consistently cool temperature; this feature provides year-round habitat for the Morrison Creek Lamprey. The Morrison Creek Lamprey nests in the stream bed over gravel with some water flow. The adult Morrison Creek Lamprey likely constructs their nests in the stream bed near the upstream end of the riffle and in the downstream portion of pools. Both sexes contribute to the building of nests, which represent discrete dwelling places that support life-cycle processes and are considered a residence for the species in the Action Plan.

The Report on the Progress of Recovery Strategy Implementation for the Morrison Creek Lamprey (Lampetra richardsoni) in Canada for the period 2007 – 2015 documents the progress of recovery strategy implementation for the Morrison Creek Lamprey in Canada. It summarizes progress that Fisheries and Oceans Canada, the Province of British Columbia’s Ministry of Environment, and other interested parties have made towards achieving the goals and objectives set out in the Recovery Strategy for the Morrison Creek Lamprey (Lampetra richardsoni var. marifuga) in Canada (2007) [the Recovery Strategy]. Progress to date includes conducting new research and monitoring activities (including advancing studies to support the identification of critical habitat); and completing management activities that help Canadians reduce impacts on, and better understand the threats to, the Morrison Creek Lamprey. More details can be found in the progress report.

Works, undertakings or activities likely to destroy any part of the critical habitat of the Morrison Creek Lamprey 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 Morrison Creek Lamprey.

Objectives

The recovery goal, as set out in the Recovery Strategy, is to secure its long-term viability within its natural range. Efforts to achieve the recovery goal and objectives for the Morrison Creek Lamprey are ongoing and are supported through measures outlined in the Action Plan.

Current threats to the Morrison Creek Lamprey, as identified in the Recovery Strategy and clarified in the Action Plan, include unsustainable land use, unsustainable water use, degradation of water quality, reduction in prey base, climate change, excessive take of individuals for research, and recreational activities. Given this species’ close proximity to urban areas, threats associated with urbanization of the Morrison Creek watershed are the most significant threats to the survival and recovery of the Morrison Creek Lamprey. In particular, the Morrison Creek Lamprey is extremely susceptible to habitat loss from urban development.

Critical habitat protection is important for ensuring the protection of the habitat necessary for the survival or recovery of the Morrison Creek Lamprey.

Pursuant to subsections 58(4) and (5) of SARA, the Order will trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Morrison Creek Lamprey, and will result in the critical habitat of the Morrison Creek Lamprey being legally protected.

Description

The critical habitat for the Morrison Creek Lamprey has been identified in the Action Plan as Morrison Creek and Arden Creek, including a riparian area of 10–25 m width surrounding the wetted perimeter of both sides of these water bodies, and the wetlands and their interconnecting water bodies within and immediately adjacent to the Morrison Creek watershed boundaries, including a riparian area of 30 m width surrounding the wetlands’ wetted perimeter, and a riparian area of 10–25 m width surrounding the wetted perimeter of both sides of the interconnecting waterways. The Order triggers 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 Action Plan, and results in the critical habitat of the Morrison Creek Lamprey identified in the Action Plan being legally protected.

The Order provides an additional tool that enables the MFO to ensure that the habitat of the Morrison Creek Lamprey 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) of SARA, 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 requirement does not apply to this Order, as there are no anticipated additional administrative costs imposed on businesses. The Order will be implemented under existing processes.

Small business lens

The objective of the small business lens is to reduce the regulatory costs for small businesses without compromising the health, safety, security and environment of Canadians.

The small business lens was applied, and it was determined that this Order does not impose any regulatory costs on small business.

Consultation

The public and stakeholders were consulted on the draft Recovery Strategy for the Morrison Creek Lamprey through a community dialogue session held in May 2006, with 15 attendees, and through online consultations. Indigenous input on the draft Recovery Strategy was sought through an information exchange session in Vancouver, British Columbia, with two representatives from an Indigenous organization whose claimed territory overlaps with the Morrison Creek watershed. The draft Recovery Strategy was published in the Public Registry for a 60-day public comment period from September 20, 2006, to November 19, 2006. The final Recovery Strategy was posted in the Public Registry on July 23, 2007, but did not include the identification of critical habitat.

On March 19, 2014, a workshop and community open house was held in Courtenay, British Columbia, to seek comments and input on the draft Action Plan, and to ensure that the document incorporated suggested recovery measures for the species. Participants in the community workshop included local citizens, community organizations, interest groups, non-governmental groups, industry, academia, and government (municipal and provincial). The participants at the workshop and open house were predominantly positive about the recovery of the Morrison Creek Lamprey and a number of respondents expressed an interest in participating in recovery actions once the Action Plan was developed.

The draft Action Plan underwent a 30-day targeted external review from July 13, 2016, to August 12, 2016. The draft Action Plan indicated that the critical habitat would be legally protected through a SARA critical habitat order made under subsections 58(4) and (5), which will trigger the prohibition in subsection 58(1) of SARA against the destruction of critical habitat. An information package that included the draft Action Plan and a comment form was prepared and was emailed to 59 stakeholders, including industry, academia, government and non-government organizations. Direct mail-outs, faxes and emails with the information package were sent to four Indigenous organizations that have claimed traditional territories that overlap with the Morrison Creek watershed; they were also offered in-person meetings.

Following these consultations, comments were received from three respondents on biological aspects of the species or the need for hydrology research and the conservation of headwaters; no comments were received from Indigenous groups. No concerns were identified with respect to the establishment of a critical habitat order. The comments resulted in minor revisions to the draft Action Plan.

The draft Action Plan was posted in the Public Registry for a 60-day public comment period from May 1, 2017, to June 30, 2017. Three sets of comments were received during the public comment period resulting in minor revisions to the recovery measures, and clarifications to the description and representation of critical habitat; however, the area of critical habitat identified in the final Action Plan is unchanged.

Fisheries and Oceans Canada, Pacific Region, has engaged with the Province of British Columbia about the nature and implications of the critical habitat Order. The Province of British Columbia has indicated support so long as an evaluation of socio-economic implications and consultations with directly affected parties have been conducted prior to the implementation of this Order. Consultation with implicated parties was completed during the development of the action plan and the socio-economic impacts have been evaluated as low.

Morrison Creek Lamprey’s critical habitat does not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act. The critical habitat is not located on land managed by any wildlife management boards.

Overall, no significant concerns were raised during the consultation period with respect to critical habitat.

Rationale

The recovery goal for the Morrison Creek Lamprey, as identified in the Recovery Strategy, is to secure its long-term viability within its natural range.

Even though measurable progress has been made towards achieving the goals, objectives and performance measures presented in the Recovery Strategy, efforts to support the recovery of the species are ongoing and include obtaining information on population abundance and dynamics, prey identification and abundance, hydrological connectivity in headwaters, taxonomic status and evolutionary relationships, and habitat use at different life stages.

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 on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 4 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) 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.

Threats to the critical habitat of the Morrison Creek Lamprey 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 this Order.

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations.

The compliance promotion and enforcement activities to be undertaken by 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, 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 Morrison Creek Lamprey 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

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

If the above conditions cannot be met, proponents are advised not to 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 in order to avoid destroying the critical habitat of the Morrison Creek Lamprey or jeopardizing the survival or recovery of the species.

Fisheries and Oceans Canada will continue to implement SARA provisions and existing federal legislation under its jurisdiction and to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the habitat of the Morrison Creek Lamprey. 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 the critical habitat of the Morrison Creek Lamprey becomes available at some point in the future, the Action Plan will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Action Plan 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 Morrison Creek Lamprey 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 the 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. 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 Morrison Creek Lamprey, 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

Kate Ladell
Acting Director
Operations
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca