Critical Habitat of the Pugnose Shiner (Notropis anogenus) Order: SOR/2019-326

Canada Gazette, Part II, Volume 153, Number 20

Registration
SOR/2019-326 September 11, 2019

SPECIES AT RISK ACT

Whereas the Pugnose Shiner (Notropis anogenus) 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 a portion of the critical habitat of that species is in a place referred to in subsection 58(2) footnote b of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;

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;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect a reserve or other lands that are set apart for the use and benefit of a band and, pursuant to subsection 58(7) of that Act, has consulted with the Minister of Indigenous Services and the band in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Pugnose Shiner (Notropis anogenus) Order.

Ottawa, September 6, 2019

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Pugnose Shiner (Notropis anogenus) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Pugnose Shiner (Notropis anogenus) – 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 Thousand Islands National Park of Canada as described in Part 5 of Schedule 1 to the Canada National Parks Act, as well as the Big Creek Unit of Big Creek National Wildlife Area, Long Point National Wildlife Area, the St. Clair Unit of St. Clair National Wildlife Area and Wellers Bay National Wildlife Area, each of which are 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.)

Issues

The Pugnose Shiner (Notropis anogenus) is a small minnow with a limited distribution in North America. In Canada, this species has been recorded as occurring in four areas within Ontario: southern Lake Huron, Lake St. Clair, Lake Erie, and eastern Lake Ontario/upper St. Lawrence River. In 2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Pugnose Shiner and classified the species as an endangered species. In June 2003, the Pugnose Shiner was listed as “endangered” in Part 2 of Schedule 1 to the Species at Risk Act footnote 1 (SARA). Following an updated status report and reassessment by COSEWIC in May 2013, the Pugnose Shiner was reclassified as a threatened species. On August 8, 2019, the status of the Pugnose Shiner was changed from “endangered” to “threatened” footnote 2 in Part 3 of Schedule 1 to SARA.

When a wildlife species is listed as an endangered or 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 the 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 Pugnose Shiner was identified in the Recovery Strategy for the Pugnose Shiner (Notropis anogenus) in Canada (2013) [the Recovery Strategy].

As the competent ministers under SARA, the Minister of Fisheries and Oceans (MFO) and the Minister responsible for the Parks Canada Agency (the Minister of the Environment) are required to ensure that the critical habitat of the Pugnose 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. A description of the critical habitat located within Thousand Islands National Park of Canada and Big Creek, Long Point, St. Clair, and Wellers Bay national wildlife areas was published in the Canada Gazette, Part I, on October 15, 2016, pursuant to subsection 58(2) of SARA, triggering the prohibition against destruction of those portions of the critical habitat on January 13, 2017. The Critical Habitat of the Pugnose Shiner (Notropis anogenus) Order (the Order), made under subsections 58(4) and (5) of SARA, triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat that is not located within Thousand Islands National Park of Canada, the Big Creek Unit of Big Creek National Wildlife Area, Long Point National Wildlife Area, the St. Clair Unit of St. Clair National Wildlife Area, or Wellers Bay National Wildlife Area. The Order affords the MFO the tool needed to ensure that the critical habitat of the Pugnose Shiner is legally protected and enhances the protection already afforded to the Pugnose Shiner habitat under existing legislation in order to support efforts towards the recovery of the species.

Background

The Government of Canada is committed to conserving biodiversity and ensuring the sustainable management of fish and fish 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 conservation of Canada’s natural aquatic ecosystems, and the protection and recovery their 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 ecological functions such as filtering drinking water and capturing the sun’s energy, which are vital to all life.

The Pugnose Shiner has a limited and disjunct distribution in North America. Within the Great Lakes Basin, the Pugnose Shiner is present in tributaries of lakes Huron, Michigan, St. Clair, Erie, and eastern Lake Ontario/upper St. Lawrence River. Recent declines have been observed across the Pugnose Shiner’s distribution, with only four existing populations known in Canada: southern Lake Huron, Lake St. Clair, Lake Erie, and eastern Lake Ontario/upper St. Lawrence River. The amount of available habitat for the Pugnose Shiner may have been diminished in quality and quantity owing to a general decline in water quality and an increase in lakeshore development.

Works, undertakings or activities likely to destroy any part of the critical habitat of the Pugnose Shiner are already subject to other federal regulatory mechanisms. The Fisheries Act protects all fish and fish habitat and provides protection against the harmful alteration, disruption or destruction of fish habitat, thereby contributing to the protection of the critical habitat of the Pugnose Shiner. Protection is afforded by the Canada National Parks Act and its regulations for the portion of critical habitat that falls within the Thousand Islands National Park of Canada and by the Canada Wildlife Act for the portions of critical habitat that fall within the Big Creek Unit of Big Creek National Wildlife Area, Long Point National Wildlife Area, the St. Clair Unit of St. Clair National Wildlife Area, and Wellers Bay National Wildlife Area.

Objectives

The long-term recovery goal, as set out in the Recovery Strategy, is to maintain self-sustaining populations at existing locations and restore self-sustaining populations to historical locations where feasible. Modelling conducted in 2010 estimated that the minimum viable population size for the Pugnose Shiner is 14 325 adults, given a 10% chance of a catastrophic event occurring per generation. Efforts to achieve the long-term goal for the Pugnose Shiner are ongoing and will be supported through measures outlined in one or more action plans, including the final Parks Canada Agency Multi-species Action Plan for Thousand Islands National Park of Canada (2016) and the proposed Action Plan for the Ausable River in Canada: An Ecosystem Approach (2018). These action plans outline several measures related to research, monitoring, and stewardship and outreach that are needed to help meet the population and distribution objectives for this species.

Threats to the Pugnose Shiner, as identified in the Recovery Strategy, include habitat modifications, aquatic vegetation removal, sediment loading/turbidity, nutrient loading, exotic species, baitfish industry, changes in the food web, and climate change. Given its limited distribution, habitat loss and degradation are the most significant threats to the survival and recovery of the Pugnose Shiner.

Critical habitat protection is important for ensuring the protection of the habitat necessary for the survival or recovery of the Pugnose Shiner. Pursuant to subsections 58(4) and (5) of SARA, this Order triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Pugnose Shiner that is not in Thousand Islands National Park of Canada, the Big Creek Unit of Big Creek National Wildlife Area, Long Point National Wildlife Area, the St. Clair Unit of St. Clair National Wildlife Area, or Wellers Bay National Wildlife Area, and results in the critical habitat of the Pugnose Shiner being legally protected.

Description

Adult Pugnose Shiner have regularly been captured in slow-moving, clear waters of shallow streams, large lakes and embayments with low gradients, abundant rooted vegetation, and substrates including sand, mud, organic detritus, clay, and marl. Adults have also been documented in sheltered inshore ponds, diked wetlands, stagnant channels, and protected bays adjacent to large waterbodies. Young-of-the-year Pugnose Shiner are typically found in heavily vegetated, shallow habitat (less than 2 m deep) with sand and silt substrates. Critical habitat for the Pugnose Shiner has been identified in the Recovery Strategy within the following areas in Ontario: Teeswater River, Old Ausable Channel, Mouth Lake, the St. Clair Unit of the St. Clair National Wildlife Area, Little Bear Creek, Long Point Bay/Big Creek (including Long Point National Wildlife Area and the Big Creek Unit of Big Creek National Wildlife Area), Wellers Bay, West Lake, East Lake, Waupoos Bay, and the St. Lawrence River/Thousand Islands National Park of Canada. The making of 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 Recovery Strategy, and results in the critical habitat of the Pugnose 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 Pugnose Shiner is protected against destruction and 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. The 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 consider and, to the extent possible, reduce the regulatory costs for small businesses without compromising the health, safety, security and environment of Canadians.

The small business lens was considered and it was determined that this Order does not impose any regulatory or compliance costs on small business.

Consultation

The Recovery Strategy, which outlined actions to protect the Pugnose Shiner and identified areas of critical habitat, was developed with a recovery team that represented a range of conservation and regulatory interests, with membership from the Province of Ontario, several conservation authorities, other federal jurisdictions (Environment and Climate Change Canada), and university researchers.

In 2010, signage with both stewardship (e.g. best management practices) and legislative messaging regarding protection under SARA were posted next to waterbodies designated as critical habitat to inform local residents of the existence and importance of critical habitat for the Pugnose Shiner. Fisheries and Oceans Canada organized approximately 10 information sessions from March 2010 to May 2012 to inform groups and agencies (e.g. conservation authorities, drainage superintendents and municipalities) about the location and protection of critical habitat for the Pugnose Shiner and other fish in southern Ontario. One information session was held that included several Indigenous groups.

Consultations were undertaken with the Minister of Indigenous Services, as per SARA subsection 58(7), regarding the making of a critical habitat order for the Pugnose Shiner, as parts of the critical habitat are located adjacent to reserves or other lands that are set apart for the use and benefit of a band under the Indian Act. Fisheries and Oceans Canada contacted the First Nation in question by letter, voice mail and email correspondence to provide them with the opportunity to review and comment on the proposed protection of critical habitat for the Pugnose Shiner. This First Nation provided comments on the Recovery Strategy as a result of a face-to-face meeting held with them in the winter of 2012. The comments were editorial in nature, and minor revisions were made to the proposed Recovery Strategy as a result.

Consultation with a wildlife management board was not required, as there are no areas in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species that will be affected by the Order.

The proposed Recovery Strategy was posted on the Public Registry for a 60-day public consultation period from June 1 to July 31, 2012. The proposed Recovery Strategy indicated that critical habitat would be legally protected by provisions in, or measures under, SARA or any other Act of Parliament (including an agreement under section 11 of SARA), or by a critical habitat protection order.

Information packages, which included a summary of the Recovery Strategy that referred to areas identified as critical habitat, a statement that critical habitat would be protected by an order as the anticipated protection mechanism, and notifications of the public comment period were sent in April and June 2012 to 34 potentially affected stakeholders and 18 Indigenous groups. Notifications of the public comment period were also made in eight newspapers in July 2012 with circulation in watersheds where the Pugnose Shiner occurs or was historically found.

In response to the information package, one First Nation community replied that they lacked the capacity to review the Recovery Strategy. A follow-up letter was sent to the community encouraging them to apply to the federal Aboriginal Fund for Species at Risk program, and inviting further discussion if desired.

A local municipality expressed concern with potential impacts to their drain clean-out activities resulting from the implementation of the recovery actions and identification of critical habitat for the Pugnose Shiner. Letters were sent back to the municipality and a series of follow-up meetings were held with the municipality and the Province of Ontario to discuss their concerns. A study on the impacts of drain clean-out was conducted and several documents were produced on different clean-out scenarios, which provided insight on the specific timing windows for drain clean-out activities.

No other comments were received during the consultation period with respect to critical habitat or its protection through an order.

The final Recovery Strategy was posted in January 2013. A minor correction was made to the map identifying critical habitat in Little Bear Creek in July 2016.

Approximately 14 additional information sessions were organized in 2013 and 2014, after the final Recovery Strategy was posted on the Public Registry, to inform stakeholder groups and agencies about the location and protection of critical habitat for the Pugnose Shiner as well as other species at risk in southern Ontario. These information sessions included a presentation that gave background information on the Pugnose Shiner, displayed maps of critical habitat, and explained the use of an Order to protect critical habitat.

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 Recovery Strategy outlines short-term population and distribution objectives for the Pugnose Shiner over the next five to ten years to assist with meeting the long-term recovery goal. They include refining population and distribution objectives, refining and protecting critical habitat, determining long-term population and habitat trends, evaluating and minimizing threats to the species and its habitat, and investigating the feasibility of population supplementation or repatriation for populations that may be extirpated or reduced.

Even though measurable progress has been made in achieving the goals, objectives and performance measures presented in the Recovery Strategy, obtaining information on population size, trends and spatial distribution, including habitat quality, is important for refining the minimum population viability target and implementing recovery measures. The identification and protection of critical habitat are also required to support the recovery goals for the Pugnose Shiner.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy or action plan that identifies critical habitat on the Public Registry. 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.

Threats to Pugnose Shiner critical habitat are managed and will continue to be managed through existing measures under federal legislation. No additional requirements are therefore imposed upon stakeholders or Indigenous groups as a result of the coming into force of 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 Fisheries and Oceans Canada, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may also contribute to 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 Pugnose Shiner 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 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 these conditions cannot be met, the activity is not authorized and applicants may be advised to modify their works, undertakings or activities so as to enable these conditions to be met.

Fisheries and Oceans Canada is currently not aware of any planned or ongoing activities that will need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts so as to avoid destroying Pugnose Shiner critical habitat or jeopardizing the 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 Pugnose Shiner. These standards and specifications are aligned with those that are required now that the Order has come into force. If new scientific information supporting changes to Pugnose Shiner critical habitat becomes available, the Recovery Strategy will be updated as appropriate and this Order will continue to 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 Pugnose 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 34.4(2)(b) or 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the MFO for a permit under section 73 of SARA, or an authorization under section 34.4 or 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, as stated above. Furthermore, the 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 34.4(1), 35(1) and 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Pugnose 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.

Contact

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