Critical Habitat of the Rainbow Trout (Oncorhynchus mykiss) Athabasca River Populations Order: SOR/2021-32

Canada Gazette, Part II, Volume 155, Number 7

Registration
SOR/2021-32 March 11, 2021

SPECIES AT RISK ACT

Whereas the Rainbow Trout (Oncorhynchus mykiss) Athabasca River populations 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 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;

And 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;

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 Rainbow Trout (Oncorhynchus mykiss) Athabasca River Populations Order.

Ottawa, March 9, 2021

Bernadette Jordan
Minister of Fisheries and Oceans

Critical Habitat of the Rainbow Trout (Oncorhynchus mykiss) Athabasca River Populations Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Rainbow Trout (Oncorhynchus mykiss) Athabasca River 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 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 Regulations.)

Issues

In Canada, only three river systems east of the continental divide are known to contain native populations of Rainbow Trout (Oncorhynchus mykiss): the Peace, Liard and Athabasca river systems. The Athabasca River populations (hereafter referred to as Athabasca Rainbow Trout) are considered a unique ecotype, or a distinct form of the species. They are found primarily in small cold headwater streams in the upper Athabasca watershed in west-central Alberta.

In August 2019, the Athabasca Rainbow Trout was listed as an endangered species footnote 1 under the Species at Risk Act footnote a (SARA). The critical habitat footnote 3 of the Athabasca Rainbow Trout was identified in the Recovery Strategy for the Rainbow Trout (Oncorhynchus mykiss) in Canada (Athabasca River populations) [the Recovery Strategy], which was posted on the Species at Risk Public Registry (the public registry) on September 10, 2020.

As competent ministers under SARA, the Minister of Fisheries and Oceans (the Minister) and the Minister responsible for the Parks Canada Agency (PCA) [the Minister of the Environment] are required to ensure that the critical habitat of the endangered Athabasca Rainbow Trout is protected by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA, or by the application of subsection 58(1) of SARA.

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. 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.

Athabasca Rainbow Trout

The Athabasca Rainbow Trout is a member of the Salmonidae family native to streams and rivers of the upper Athabasca watershed in west-central Alberta. There are two life history strategies observed within populations of Athabasca Rainbow Trout: one where individuals are “stream resident” and live in cold headwater streams, and the other where individuals are “river migrant” and live in the upper reaches of larger rivers and move into smaller streams for spawning. Spawning habitat for both is in streams with fine gravel (free of silts and clays) and moderate flow rates. Deeper pools are required for overwintering, and links must be maintained between spawning, rearing and overwintering habitat. The diet of the Athabasca Rainbow Trout varies across life stages and consists primarily of aquatic and terrestrial insects. Athabasca Rainbow Trout differ from introduced Rainbow Trout populations in Alberta in that Athabasca Rainbow Trout spawn later in the spring, have slower growth rates and mature at smaller sizes.

Athabasca Rainbow Trout are threatened by several anthropogenic factors including impacts of invasive species, hybridization and interbreeding with non-native stocked Rainbow Trout, mortality related to fishing, sedimentation, and habitat fragmentation. Various population assessments suggest that Athabasca Rainbow Trout have decreased in abundance in many streams.

In May 2014, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Athabasca Rainbow Trout as endangered.

In August 2019, Athabasca Rainbow Trout was listed as an endangered species on the List of Wildlife Species at Risk (Schedule 1) of SARA. As an aquatic endangered species listed under Schedule 1 of SARA, the prohibitions in section 32 and section 33 of SARA automatically apply:

In September 2020, the Recovery Strategy was posted on the public registry. The Recovery Strategy identifies the critical habitat necessary to support the recovery of the Athabasca Rainbow Trout.

In December 2020, the Minister responsible for PCA published a description of the portion of the Athabasca Rainbow Trout critical habitat that occurs in Jasper National Park, to trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the species' critical habitat located in Jasper National Park.

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 Athabasca Rainbow Trout that is identified in the Recovery Strategy for the species, outside of Jasper National Park.

Description

Critical habitat for the Athabasca Rainbow Trout has been identified throughout the drainages of the upper Athabasca River, including the major tributaries of the McLeod, Berland/Wildhay, Sakwatamau and Freeman river watersheds. 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 critical habitat order (the Order) triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the Athabasca Rainbow Trout critical habitat and results in the legal protection of the critical habitat identified in the Recovery Strategy, excluding the portion in Jasper National Park.

If new information becomes available to support changing the critical habitat of the Athabasca Rainbow Trout, the Recovery Strategy will be updated 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 Minister an additional tool to ensure that the critical habitat of the Athabasca Rainbow 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 life processes. Prior to the identification of critical habitat for the Athabasca Rainbow 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, thus the Fisheries Act subsection 35(1) prohibition, as well as the SARA subsection 58(1) prohibition triggered by the Order, apply to this riparian zone.

Regulatory development

Consultation

The Recovery Strategy was prepared in cooperation and consultation with multiple other jurisdictions, organizations, and affected parties, including PCA and Alberta Environment and Parks (AEP). Participation in the development of the provincial Alberta Athabasca Rainbow Trout Recovery Plan 2014-2019, on which the Recovery Strategy is based, included the Alberta Forest Products Association, Athabasca Bioregional Society, Alberta Fish and Game Association, Trout Unlimited Canada, University of Lethbridge, Coal Valley, and the Canadian Association of Petroleum Producers. Proposed critical habitat was identified through a science-based process, coordinated through the Department of Fisheries and Oceans (DFO) Canadian Science Advisory Secretariat (CSAS). footnote 6 The CSAS process included participation and provision of information from the DFO and AEP.

Consultation on the draft recovery strategy occurred through emails and meetings with the Province of Alberta and PCA. They provided extensive editorial and organizational comments on the document. Indigenous groups within the range of the Athabasca Rainbow Trout were emailed letters in February and March 2020 and were invited to comment on the accompanying draft executive summary. No Indigenous groups provided comments on the executive summary.

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) of SARA against the destruction of the identified critical habitat. Seventeen comments were received from industry, environmental non-governmental organizations (ENGOs), Indigenous groups, and the general public. Responses to the proposed recovery strategy were mostly positive, with some exceptions. ENGOs criticized the identification of critical habitat as they considered it too narrow and not providing sufficient protection for 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 that this would result in negative impacts on their businesses. Upon the scientific determination that a 30 m riparian zone was habitat necessary to support the life processes of this fish species, 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 the DFO. As a result, the 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 and 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 the 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 Athabasca Rainbow 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

The 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 Athabasca Rainbow 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 Athabasca Rainbow Trout. PCA also provided input to 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.

During consultation on the draft recovery strategy in February and March 2020, 40 Indigenous groups were sent a letter of notification and the executive summary of the draft document. In June 2020, these 40 Indigenous groups were notified of the posting of the proposed recovery strategy on the public registry for a 60-day public comment period. Letters were sent to Indigenous groups after the proposed recovery strategy was posted. The letters directed their attention to the planned critical habitat order. Feedback from Indigenous groups, in response to the letters and during the public comment period, included questions around potential treaty implications, concerns around the consultation approach, and requests for additional information and clarification. In response to this input on both the recovery strategy and the critical habitat order, the DFO has followed up, and continues to do so in a variety of ways, including initiating further dialogue with those Indigenous groups requesting it, circulating additional email correspondence and holding virtual meetings (e.g. with Métis Nation of Alberta, Swan River First Nation, Lac Ste. Anne Métis [Gunn Métis Local #55], Mountain Métis, and Aseniwuche Winewak Nation). Where appropriate, AEP and PCA have been involved in these follow-up actions.

The DFO intends to amend the Recovery Strategy in the future to include a portion of critical habitat that overlaps with the Alexis Nakota Sioux Nation's Alexis Whitecourt Indian Reserve 232. This portion of critical habitat was identified in the proposed recovery strategy posted to the public registry on June 1, 2020. However, the DFO decided not to include the portion of critical habitat that occurs in Whitecourt Indian Reserve 232 in the final Recovery Strategy posted on September 10, 2020, as it wanted to ensure the consultation obligations of 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 the Alexis Nakota Sioux Nation. The DFO has initiated consultations on the planned amendment by sending a letter to the Alexis Nakota Sioux Nation, and will be following up with additional outreach should there be no response. In addition, the 39 other Indigenous groups whose traditional lands are near the historic or current distribution of Athabasca Rainbow Trout were notified via letters of the planned amendment to 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. 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.

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. They have 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, therefore, form part of the baseline for analysis.

Therefore, 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 the Department 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 as a result of 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. As such, 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 Athabasca Rainbow Trout as a threatened fish under the provincial Wildlife Act. The identification of critical habitat for the Athabasca Rainbow Trout largely aligns with the Ecologically Significant Habitat (ESH) identified in the 2014 provincial recovery plan, except that areas upstream that provide direct and indirect habitat to ESH and areas downstream that have habitat features for spawning or overwintering for both life history forms have been added to the critical habitat.

Parks Canada Agency

A portion of the Athabasca Rainbow Trout critical habitat occurs in Jasper National Park, a national park of Canada listed under Schedule 1 of the Canada National Parks Act. In accordance with subsection 58(2) of SARA, the Minister responsible for PCA has published a description of the critical habitat that occurs in Jasper National Park in the Canada Gazette. On March 5, 2021, 90 days following the publication of the description, the prohibition in subsection 58(1) of SARA against the destruction of any part of the species' critical habitat will apply to the portion of the Athabasca Rainbow Trout critical habitat found in Jasper National Park. The remainder of the Athabasca Rainbow Trout critical habitat is subject to the critical habitat order, which triggers the application of subsection 58(1) for the portion of critical habitat outside of Jasper National Park.

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, compliance and enforcement, and service standards

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.

The 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 outside of Jasper National Park where it is not possible to avoid the destruction of a part of the critical habitat of the Athabasca Rainbow Trout, 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 paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that 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 comply with the requirements of subsection 73(7).

A SARA permit or Fisheries Act authorization 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.

The DFO is currently involved in one active impact assessment, the Coalspur Vista Coal Underground Mine and Expansion, as well as other regulatory reviews for projects located in or nearby Athabasca Rainbow 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.

Anyone planning on undertaking an activity within the critical habitat of the Athabasca Rainbow Trout should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact the DFO. For more information, proponents should consult the DFO's projects near water webpage.

Contact

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