Critical Habitat of the Vancouver Lamprey (Entosphenus macrostomus) Order: SOR/2020-29
Canada Gazette, Part II, Volume 154, Number 5
SOR/2020-29 February 17, 2020
SPECIES AT RISK ACT
Whereas the Vancouver Lamprey (Entosphenus macrostomus) 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 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 Vancouver Lamprey (Entosphenus macrostomus) Order.
Ottawa, February 13, 2020
Minister of Fisheries and Oceans
Critical Habitat of the Vancouver Lamprey (Entosphenus macrostomus) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Vancouver Lamprey (Entosphenus macrostomus), 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.)
The Vancouver Lamprey is a landlocked parasitic freshwater fish found only in the Cowichan valley watershed in southern Vancouver Island, British Columbia.
In 2003, the Vancouver Lamprey was listed as “threatened” footnote 1 in Part 3 of Schedule 1 to the Species at Risk Act footnote 2 (SARA). The critical habitat footnote 3 of the Vancouver Lamprey was identified in the Action Plan for the Vancouver Lamprey (Entosphenus macrostomus) in Canada (the Action Plan), which was posted in the Species at Risk Public Registry (the Public Registry) on August 21, 2019.
As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the threatened Vancouver Lamprey is legally protected by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11, or by the application of subsection 58(1) of SARA.
The Government of Canada is committed to conserving biodiversity both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. As a party to this Convention, Canada developed the Canadian Biodiversity Strategy and federal legislation to protect species at risk. SARA received royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and manage species of special concern to prevent them from becoming endangered or threatened.
Habitat protection under SARA
When a wildlife species is listed as endangered, threatened or extirpated in Schedule 1 of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Public Registry. The recovery strategy or action plan must include, to the extent possible, an identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival) based on the best available information.
Under SARA, critical habitat must be legally protected within 180 days after the posting in the Public Registry of the final recovery strategy or action plan that identifies that critical habitat. 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.
The Vancouver Lamprey
The Vancouver Lamprey has only been reported in the Cowichan valley watershed on Vancouver Island. Its preferred habitat is not known, but it is assumed that the species seek prey in a variety of locations within the water column of Cowichan, Mesachie and Bear lakes. It is assumed that they spawn in the nearshore lake habitat and construct their nests in or near tributary deltas of streams. Their nests represent discrete dwelling places that support spawning and egg incubation, and are considered a “residence” for the species. After hatching, larvae (ammocoetes) are generally found in areas with fine sediment in close proximity to lake tributaries. Studies on the Vancouver Lamprey have been ongoing.
In 2000, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Vancouver Lamprey and classified the species as threatened. COSEWIC reassessed the species in November 2008 and November 2017, and the status of the Vancouver Lamprey was confirmed as threatened.
In 2003, the Vancouver Lamprey was listed as threatened on the List of Wildlife Species at Risk (Schedule 1) of SARA.
As the Vancouver Lamprey is a threatened species under Schedule 1 of SARA, the following prohibitions stated in sections 32 and 33 of SARA automatically apply:
- prohibition against killing, harming, harassing, capturing or taking an individual of that species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of that species, or any part or derivative of such an individual; and
- prohibition against damaging or destroying the residence of one or more individuals of that species.
In 2019, the Action Plan was posted in the Public Registry. This Action Plan identifies the critical habitat necessary to support the recovery of the Vancouver Lamprey.
The objective of the Critical Habitat of the Vancouver Lamprey (Entosphenus macrostomus) Order (the Order) is to trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Vancouver Lamprey that is identified in the Action Plan for this species.
The Vancouver Lamprey is considered an extreme endemic species; it has been reported only in Cowichan and Mesachie lakes, on southern Vancouver Island, British Columbia. The critical habitat for this species has been identified in the Action Plan as Cowichan, Bear, and Mesachie lakes; Mesachie Creek (flowing between Bear and Mesachie lakes); the lower 100 m of eight tributaries flowing into Cowichan Lake; the lower 100 m of Halfway Creek flowing into Mesachie Lake; and riparian widths of 15–30 m extending inland from aforementioned streams and two specific areas of Cowichan Lake. 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 Vancouver Lamprey identified in the Action Plan being legally protected.
If new information becomes available to support changing the critical habitat of the Vancouver Lamprey, the Action Plan will be updated as appropriate (taking into account feedback from public consultation) and this Order will apply to the revised critical habitat once included in a final amended action plan published in the Public Registry.
The Order affords the Minister an additional tool to ensure that the critical habitat of the Vancouver Lamprey is legally protected against destruction. It enhances the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act, which prohibits the harmful alteration, disruption or destruction of fish habitat.
On September 19, 2016, a workshop and a community open house were held in Lake Cowichan, British Columbia, to seek input on the draft Action Plan, which identified critical habitat. Participants in the workshop included community, interest and non-governmental groups, species experts, industry, Indigenous organizations, and government (regional and provincial). Participants in the workshop and open house were predominantly positive about Vancouver Lamprey recovery.
The draft Action Plan underwent a 30-day targeted external review from February 20 to March 21, 2017. The draft Action Plan identified critical habitat and specifically indicated that legal protection of critical habitat against destruction was anticipated and would be accomplished through a SARA critical habitat order made under subsections 58(4) and (5), which would trigger the prohibition in subsection 58(1) against the destruction of the identified critical habitat. A review package that included the draft Action Plan and a comment form was emailed to 24 stakeholders, including industry, species experts, the regional district, governments (municipal, provincial, federal) and non-governmental organizations. Direct mail-outs, faxes and emails with the information package were sent to nine Indigenous groups and Indigenous organizations that have claimed traditional territories that overlap with the Vancouver Lamprey range; they were also offered in-person meetings.
Comments were received from three respondents: the Province of British Columbia, a species expert, and an Indigenous organization. Comments related to biological aspects of the species; the need for continued research on Vancouver Lamprey; knowledge gaps related to critical habitat attributes and activities likely to result in the destruction of critical habitat; priorities and timelines for recovery measures; and the inclusion of Indigenous groups and Indigenous organizations as collaborators. The comments resulted in minor revisions to the draft Action Plan.
The proposed Action Plan was published in the Public Registry for a 60-day public comment period from June 12 to August 11, 2018. The proposed 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 the identified critical habitat. No comments were received during the public comment period.
Fisheries and Oceans Canada, Pacific Region, has engaged with the Province of British Columbia about the nature and implications of critical habitat orders. The Province has indicated support, so long as an evaluation of socio-economic implications and consultation with directly affected parties have been conducted prior to the implementation of this Order. Consultation with affected parties was completed during the development of the Action Plan and the socio-economic impacts have been determined to be low.
Overall, no significant concerns were raised during the consultation period with respect to the critical habitat identified for the Vancouver Lamprey or to plans to protect the critical habitat through the making of critical habitat orders.
Modern treaty obligations and Indigenous engagement and consultation
The critical habitat of the Vancouver Lamprey 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.
An assessment of modern treaty implications was completed. The assessment concluded that implementation of this Order will likely not have an impact on the rights, interests and/or self-government provisions of treaty partners.
Refer to the “Consultation” section above for information on the Indigenous engagement completed.
Under SARA, all of a species’ critical habitat must be protected either by the application of the prohibition against the destruction of any part of the critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11. Courts have concluded that other federal laws must provide an equal level of legal protection for critical habitat as would be engaged through subsections 58(1) and (4), failing which, the Minister must make a critical habitat order to trigger the application of subsection 58(1) of SARA. The courts have also concluded that subsection 35(1) of the Fisheries Act does not legally protect critical habitat, as subsection 35(2) grants the Minister complete discretion to authorize the destruction of fish habitat. As a result, in most cases, the making by the Minister of an order to legally protect critical habitat may be necessary.
Benefits and costs
Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of the 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 may 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 at this time, qualitatively or quantitatively, due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.
Small business lens
The small business lens was applied, and it was determined that this Order does not impose any regulatory costs on small businesses.
The one-for-one rule 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.
Regulatory cooperation and alignment
SARA is a key tool for the conservation and protection of Canada’s biological diversity and fulfills a commitment made under the United Nations’ Convention on Biological Diversity. Therefore, the Order will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan to identify the potential for important environmental effects was conducted. It was concluded that a strategic environmental assessment was not required for this Order because it is not expected to have an important environmental effect on its own considering the existing federal regulatory mechanisms in place.
However, it is expected that when all planned recovery activities and legal protections are considered together, this Order will have a positive environmental impact and contribute to the achievement of the Federal Sustainable Development Strategy goal of healthy wildlife populations.
Gender-based analysis plus
A preliminary consideration of gender-based analysis plus (GBA+) factors did not reveal potential differences in impact on groups or subgroups of individuals.
Implementation, compliance and enforcement, and service standards
Threats to critical habitat are managed and will continue to be managed through existing measures under federal legislation.
In cases where it is not possible to avoid the destruction of a part of the critical habitat of the Vancouver Lamprey, the proponents of the works, undertakings or activities may apply to the Minister of Fisheries and Oceans 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.
Under section 73 of SARA, the Minister 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, provided, among other things, the Minister forms the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, and the pre-conditions set out in subsection 73(3) of SARA are met.
Fisheries and Oceans Canada also 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. In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA. Furthermore, among other things, the pre-conditions set out in subsection 73(3) of SARA must also be met.
A SARA permit or Fisheries Act authorization, if approved, would contain the terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.
Compliance and enforcement
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.
Any person planning on undertaking an activity within the critical habitat of the Vancouver Lamprey should inform themself 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 Operations
Fisheries and Oceans Canada
200 Kent Street