Critical Habitat of the Bull Trout (Salvelinus confluentus) Saskatchewan-Nelson Rivers Populations Order: SOR/2021-31

Canada Gazette, Part II, Volume 155, Number 7

Registration
SOR/2021-31 March 11, 2021

SPECIES AT RISK ACT

Whereas the Bull Trout (Salvelinus confluentus) Saskatchewan-Nelson Rivers populations 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 Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, and the Minister of Fisheries and Oceans have together prepared a recovery strategy that identified the critical habitat of that species and that recovery strategy has been included in the Species at Risk Public Registry;

And 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;

Therefore, the Minister of the Environment and the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, make the annexed Critical Habitat of the Bull Trout (Salvelinus confluentus) Saskatchewan-Nelson Rivers Populations Order.

Gatineau, March 5, 2021

Jonathan Wilkinson
Minister of the Environment

Ottawa, March 9, 2021

Bernadette Jordan
Minister of Fisheries and Oceans

Critical Habitat of the Bull Trout (Salvelinus confluentus) Saskatchewan-Nelson Rivers Populations Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Bull Trout (Salvelinus confluentus) Saskatchewan-Nelson Rivers populations — 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 Banff National Park of Canada, Waterton Lakes National Park of Canada and Jasper National Park of Canada, as described in Part 2 of Schedule 1 to the Canada National Parks Act.

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 Saskatchewan-Nelson Rivers populations of Bull Trout (hereafter referred to as Bull Trout) are considered a unique ecotype (that is, a distinct form of a species) native to rivers and streams of the North and South Saskatchewan River watershed in southwest and central-west Alberta.

In 2019, the Bull Trout was listed as a threatened species footnote 1 under the Species at Risk Actfootnote a (SARA). The critical habitat footnote 3 of the Bull Trout was identified in the Recovery Strategy for the Bull Trout (Salvelinus confluentus), Saskatchewan-Nelson Rivers populations, in Canada (the recovery strategy) which was posted on the Species at Risk Public Registry (the Public Registry) as final on September 10, 2020.

As competent ministers under SARA, the Minister responsible for the Parks Canada Agency (the Minister of the Environment) and the Minister of Fisheries and Oceans (the Minister) are required to ensure that the critical habitat of the threatened Bull Trout is 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). For the Bull Trout, this protection will be accomplished through the making of the Critical Habitat of the Bull Trout (Salvelinus confluentus) Saskatchewan-Nelson Rivers populations Order (the Order) under subsections 58(4) and (5) of SARA, which will trigger the protection against the destruction of any part of the species' critical habitat under subsection 58(1).

To avoid duplication of effort and to aim for greater efficiency, the competent ministers have agreed to make a joint order to ensure that Bull Trout critical habitat would be legally protected against destruction in those areas where it is located outside of Banff National Park, Jasper National Park, and Waterton Lakes National Park. Critical habitat for these three national parks is not included in the Order because it is protected under subsection 58(2) of SARA by a description published in the Canada Gazette, Part I, on December 5, 2020. However, some critical habitat falls within other areas administered by Parks Canada Agency (PCA), including portions in Rocky Mountain House National Historic Site, the Ya Ha Tinda Ranch, and the Bar U Ranch National Historic Site. These are not covered under subsection 58(2) and, therefore, require protection that will be completed by the making of this Order.

Background

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 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

Once a wildlife species has been 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 posted on the Public Registry. The recovery strategy or action plan must include, to the extent possible based on the best available information, an identification of the species' critical habitat (i.e. the habitat necessary for a listed wildlife species' recovery or survival).

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

Bull Trout

The Saskatchewan-Nelson Rivers populations of Bull Trout are members of the salmonid family native to rivers and streams of the North and South Saskatchewan River watershed in southwest and central-west Alberta. Native Saskatchewan-Nelson Rivers populations of Bull Trout exist in four large river systems east of the continental divide (the Oldman, Bow, Red Deer and North Saskatchewan rivers). Bull Trout are a keystone species where they are found, and are often referred to as a “canary in the coal mine” species, as they are an indicator of healthy, intact, cold-water aquatic ecosystems. Within Alberta, Bull Trout exhibit three life history stages: stream resident, migratory or fluvial (riverine), and adfluvial (riverine-lake migrant). Bull Trout habitat is generally described as cold, clean, complex, and connected, regardless of life history type. Groundwater upwellings (areas where groundwater seeps up from below the stream bed) are an important component of Bull Trout habitat for all life history types. This is particularly the case for perennial upwellings, which are most important for egg incubation and overwintering. Bull Trout are largely opportunistic predators and while juveniles mainly forage on drift during the day and benthic insects at night, they switch to a fish diet once reaching 100 mm to 200 mm in length.

Bull Trout are threatened by several anthropogenic factors, including habitat alteration and removal, habitat fragmentation (i.e. migratory barriers), human-induced mortality (from historic overexploitation and incidental harvest mortality from catch-and-release fishing), and interspecific interactions: hybridization with introduced Brook Trout, and competition and egg/juvenile predation by introduced Rainbow Trout and Brook Trout. Bull Trout are particularly vulnerable to these threats and others, such as climate change, due to their specific habitat needs, limited cold-water habitat availability, low population density, restricted gene flow due to fragmentation and slow maturity rate.

This population was assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) in 2012 as threatened.

In 2019, the Saskatchewan-Nelson Rivers populations of Bull Trout were listed as a threatened species under Schedule 1 of SARA. For aquatic endangered and threatened species listed on Schedule 1 of SARA, the following prohibitions in sections 32 and 33 automatically apply:

In September 2020, the final recovery strategy was posted on the Public Registry. The recovery strategy identifies the critical habitat necessary to support the recovery of the Bull Trout.

Objective

The objective of this regulatory initiative is to trigger, through the making of a critical habitat order, the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Bull Trout that is identified in the recovery strategy for the species, outside of Banff, Jasper, and Waterton Lakes National Parks.

Description

The critical habitat identified in the recovery strategy includes parts of the Oldman, Bow, Red Deer, and North Saskatchewan river basins in southwestern Alberta. The recovery strategy identifies the critical habitat of the Bull Trout as clean, cold waters that tend to be structurally diverse (complex habitat), well connected, contain areas of groundwater upwelling, and offer protection against high or low stream flows, disruption of the stream bed, fine sediments, high water temperatures, freezing to the stream bed, and the loss of pools and cover. Maps of the areas that contain critical habitat can be found in the recovery strategy. Only those areas within the identified geographical boundaries possessing features and attributes necessary to support defined life stage functions comprise the critical habitat. A width of 30 m from the high water mark on both stream banks is included in the identified critical habitat. This 30 m riparian area footnote 5 is necessary to protect key stream attributes such as clean and cold water with low sediment and silt, maintain channel configuration and habitat structure, and provide terrestrial food inputs and woody debris into the aquatic environment.

The Order triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of Bull Trout critical habitat and results in the legal protection of the critical habitat identified in the recovery strategy, excluding the portion in Banff, Jasper, and Waterton Lakes national parks of Canada.

If new information becomes available to support changing the critical habitat of the Bull Trout, the recovery strategy will be amended as appropriate (taking into account feedback from public consultation) and the Order will apply to the revised critical habitat once included in an amended recovery strategy posted on the Public Registry.

The Order affords the competent ministers with an additional tool to ensure that the critical habitat of the Bull Trout 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 carrying on of any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat.

The definition of fish habitat for the purposes of subsection 35(1) of the Fisheries Act has always included riparian habitat where it is required to, directly or indirectly, support the life processes of fish. Prior to the identification of critical habitat for the Bull Trout in the recovery strategy, the exact extent of riparian habitat necessary for the survival of this fish species may not have been apparent. Through the identification of critical habitat, it has been determined that 30 m from the high water mark on both stream banks is required and thus, the prohibition under subsection 35(1) of the Fisheries Act, as well as the prohibition under subsection 58(1) of SARA triggered by the Order, apply to this riparian zone.

Regulatory development

Consultation

The recovery strategy was prepared in cooperation and consultation with other jurisdictions, organizations, and affected parties, including Alberta Environment and Parks (AEP). The Department of Fisheries and Oceans (DFO) and PCA participated in AEP's provincial recovery planning processes, including the Provincial Bull Trout Advisory Committee (Bull Trout PAC), which developed the provincial draft recovery plan. The intention was to ensure consistency between the provincial plan and the recovery strategy, to facilitate coordination between jurisdictions and stakeholders responsible for Bull Trout recovery. Bull Trout PAC meetings were held semiannually to review and seek input on drafts of the provincial recovery plan. In addition to DFO, AEP, and PCA, the Bull Trout PAC included representatives of the forestry industry (West Fraser, Spray Lakes Sawmills, fRI Research [Foothills Research Initiative]), Canadian Association of Petroleum Producers (CAPP), Canadian Parks and Wilderness Society (CPAWS), Trout Unlimited Canada (TUC), Alberta Wilderness Association (AWA), and Alberta Fish and Game Association (AFGA).

The development of the federal recovery strategy was largely undertaken incorporating the concepts and information developed in support of the provincial draft recovery plan for Bull Trout. Additionally, a process of review and input was undertaken on the federal draft recovery strategy that included DFO, PCA, and the Province of Alberta (AEP and Alberta Agriculture and Forestry), that occurred between late 2019 and early 2020. Proposed critical habitat was identified through a science-based process, coordinated through the DFO Canadian Science Advisory Secretariat (CSAS) footnote 6. The CSAS process included participation and provision of information from DFO, AEP, and PCA and led to the development of the Recovery Potential Assessment (DFO 2017), and the Review of Alberta's Cumulative Effects Assessment Joe Model (DFO 2019).

On June 1, 2020, Indigenous, stakeholder, and public input was sought through the publication of the proposed recovery strategy on the Public Registry for a 60-day public comment period. The proposed recovery strategy included the identification of critical habitat, and noted the anticipated protection of critical habitat by a critical habitat order made under SARA subsections 58(4) and (5), which would invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat. There were 27 comments from industry, environmental non-governmental organizations (ENGOs), stakeholders, and the public. Responses to the proposed recovery strategy were mostly positive, with some exceptions. ENGOs considered the critical habitat to be too narrow and not providing sufficient protection of the species. Conversely, the forestry industry did not support the identification of critical habitat as they considered it too broad, in particular with respect to the riparian component, and indicated this would result in negative impacts on their businesses. Upon the scientific determination that a 30 m riparian zone was necessary to support the life processes of Bull Trout in the final recovery strategy, any work, undertaking, or activity resulting in the harmful alteration, disruption, or destruction of this fish habitat became prohibited by subsection 35(1) of the Fisheries Act, unless the requirements for an exception described in subsection 35(2) can be satisfied. The forestry industry has signalled that this could lead to an increase in the number of projects that may require review by DFO. As such, DFO is currently in discussion with the forestry industry to explore alignment of modern forestry practices with requirements to protect habitat and determine whether there is an increase in burden and how that might be alleviated for both industry and government. The potential increase in burden would be attributable to the Fisheries Act; the Order itself does not have an incremental impact (refer to the “Regulatory analysis” section of this Regulatory Impact Analysis Statement). In follow-up discussions, forestry industry representatives did not express opposition when DFO explained its plan to proceed with making the Order to satisfy the legal obligations of SARA.

Overall, comments received on the proposed recovery strategy indicated general support, and included some specific, editorial, and detailed content comments that were addressed. All feedback received was considered and incorporated as appropriate in the finalization of the recovery strategy. Suggestions and concerns related to the implementation of recovery measures for the Bull Trout will be considered in the action plan that will be developed and open to public consultation.

Modern treaty obligations and Indigenous engagement and consultation

Bull Trout critical habitat identified in the species' September 2020 recovery strategy 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. Indigenous groups identified as having traditional lands near the historic or current distribution of the Bull Trout were included in the consultation activities completed during the development of the recovery strategy. This determination was based on best practices, taking into account existing knowledge regarding the traditional lands of Indigenous groups in the region, and insights gleaned from previous consultation during the SARA Schedule 1 listing process, which included Indigenous groups/reserves located within a 50 km radius of the Bull Trout's distribution. PCA also provided input in the selection of Indigenous groups to consult. This process was intended to be inclusive, encompassing a large number of potentially interested and concerned Indigenous groups. Notifications and executive summaries were sent to 46 Indigenous groups in February and March 2020. In June 2020, the Indigenous groups were notified that the proposed recovery strategy was on the Public Registry for a 60-day public comment period. No comments were received from Indigenous groups during the public comment period regarding the critical habitat identification. Letters were sent after the proposed recovery strategy was published on the Public Registry. The letters directed attention to the upcoming Order.

DFO intends to amend the recovery strategy to include a portion of critical habitat that overlaps with the O'Chiese First Nation, Sunchild First Nation, Blood Tribe, Piikani Nation, Alexis Nakota Sioux Nation, Tsuut'ina Nation, and Stoney Nakoda Nations (Wesley First Nation, Bearspaw First Nation, and Chiniki First Nation). These portions of critical habitat were identified in the proposed recovery strategy posted to the Public Registry on June 1, 2020. However, DFO decided not to include the portions of critical habitat overlapping with reserve lands in the final recovery strategy posted on September 10, 2020, as it wanted to ensure obligations under subsection 58(7) of SARA were thoroughly met. The operational environment in 2020 during the COVID-19 pandemic may have impeded comprehensive and effective consultation with Indigenous groups. DFO has initiated consultations on the planned amendment by directly engaging with Louis Bull Tribe, Lac Ste. Anne Métis, Blackfoot Confederacy (Blood Tribe, Piikani Nation, Siksika First Nation), Stoney Nakoda Nations (Wesley First Nation, Bearspaw First Nation, and Chiniki First Nation), and Tsuut'ina Nation. In addition, all other Indigenous groups whose traditional lands are near the historic or current distribution of Bull Trout were notified by letter of the Order and the planned amendment to the critical habitat. Once the consultations are complete and the recovery strategy is amended and posted as final to the Public Registry, the Order will automatically apply to the new critical habitat. footnote 7

An assessment of modern treaty implications was completed by DFO. The assessment concluded that implementation of this Order will likely not have an impact on the rights, interests and/or self-government provisions of modern treaty partners.

Instrument choice

Under SARA, all of a species' critical habitat must be legally 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, triggering the application of subsection 58(1) of SARA. Courts also concluded that subsection 35(1) of the Fisheries Act does not legally protect critical habitat, because subsection 35(2) grants the Minister complete discretion to authorize the destruction of fish habitat. As a result, in most cases, the making of an order by the Minister may be necessary to legally protect critical habitat.

Regulatory analysis

Benefits and costs

The baseline for this analysis is the management of fish habitat subsequent to the posting of the recovery strategy. Prior to the identification of the 30 m riparian zone as critical habitat in the recovery strategy, the riparian area that was considered fish habitat under the Fisheries Act varied from 5 m to 100 m in some geographical areas. This reflects Alberta's Timber Harvest Planning and Operating Ground Rules Framework for Renewal (PDF). Consequently, the identification of the 30 m riparian zone as critical habitat resulted in some new areas being considered fish habitat. These new areas of fish habitat now receive protection pursuant to subsection 35(1) of the Fisheries Act, which may result in additional administrative or operational requirements for proponents and incremental impacts to industry. Protection of new areas of fish habitat under the Fisheries Act may also provide incremental benefits to the species, its habitat, and the ecosystem, which in turn may provide incremental benefits to Canadians. However, these impacts are attributable to the Fisheries Act rather than this Order, and form part of the baseline for analysis.

As a result, 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 from the making of this Order. 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 DFO and PCA to fulfill requirements under SARA, 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 Canadians and Canadian businesses 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 from these outreach activities.

Small business lens

The small business lens was applied and it was determined that the Order does not impose any incremental regulatory costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to the Order, as there are no anticipated additional administrative burden 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 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.

Province of Alberta

The Government of Alberta has recognized Bull Trout as a threatened species under the provincial Wildlife Act. Preparation of the recovery strategy was undertaken in cooperation with Alberta Environment and Parks (AEP) in order to ensure coordination between jurisdictions and stakeholders responsible for Bull Trout recovery. This cooperation was primarily through participation in the Provincial Bull Trout Advisory Committee which was assembled to develop the provincial draft recovery plan.

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 concluded that a strategic environmental assessment was not required for the Order, because the Order 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, these will have a positive environmental impact and will 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 and compliance and enforcement

Implementation

Threats to critical habitat are currently managed and will continue to be managed through existing measures under federal legislation, such as protections under the Fisheries Act.

DFO provides a single window for proponents to apply for authorizations or permits under the Fisheries Act or SARA to conduct works, undertakings or activities in or near water. In cases where it is not possible to avoid the destruction of a part of the critical habitat of the Bull Trout, the proponents of the works, undertakings, or activities may apply to the Minister or to the Minister of the Environment for a permit under section 73 of SARA. A permit under another Act that has the same effect as an agreement or permit under subsection 73(1) of SARA could also be acceptable. In some cases, an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act will have the same effect as a permit issued under subsection 73(1) of SARA.

Under section 73 of SARA, the competent 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 that the requirements of subsections 73(2) to (6.1) of SARA are met. After it is entered into or issued, the competent minister must comply with the requirements of subsection 73(7).

An authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act can 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 must be of the opinion that the requirements of subsections 73(2) to (6.1) are met. After the authorization is issued, the Minister must also comply with the requirements of subsection 73(7).

A SARA permit or an authorization under the Fisheries Act also having the same effect as a SARA permit, 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.

DFO is currently involved in three active impact assessments, the Springbank Off-Stream Reservoir Project, Coalspur Vista Coal Underground Mine and Expansion, and Grassy Mountain Coal Project, as well as other potential regulatory reviews for projects located in or nearby Bull Trout critical habitat. The critical habitat identified in the species' recovery strategy has been or will be taken into account as part of any impact assessment or regulatory review process.

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 Bull Trout should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact DFO or PCA. For more information, proponents should consult DFO's Projects near water webpage.

Contacts

Kate Ladell

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

Lisa Young
Director
Conservation Strategy Branch
Parks Canada Agency
30 Victoria Street
Gatineau, Quebec
J8X 0A8
Email: pc.sarregistrycomments.pc@canada.ca