Critical Habitat of the Copper Redhorse (Moxostoma hubbsi) Order: SOR/2021-95

Canada Gazette, Part II, Volume 155, Number 11

Registration
SOR/2021-95 May 6, 2021

SPECIES AT RISK ACT

Whereas the Copper Redhorse (Moxostoma hubbsi) 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 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 Copper Redhorse (Moxostoma hubbsi) Order.

Gatineau, April 30, 2021

Jonathan Wilkinson
Minister of the Environment

Ottawa, May 5, 2021

Bernadette Jordan
Minister of Fisheries and Oceans

Critical Habitat of the Copper Redhorse (Moxostoma hubbsi) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Copper Redhorse (Moxostoma hubbsi) — 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 the îles de Contrecœur National Wildlife Area as set out in item 2 of Part III 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

In December 2007, the Copper Redhorse was listed as an endangered species footnote 1 on Schedule 1 of the Species at Risk Act (SARA). In May 2014, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) confirmed the classification of the Copper Redhorse as endangered.

In 2012, the Recovery Strategy for the Copper Redhorse (Moxostoma hubbsi) in Canada (Recovery Strategy) was published in the Species at Risk Public Registry (Public Registry). The Recovery Strategy identified, to the extent possible, the critical habitat necessary for the survival or recovery of the Copper Redhorse.

As competent ministers under SARA, the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency (PCA; Minister of the Environment) are required to ensure that the critical habitat of the Copper Redhorse 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. For the Copper Redhorse, this protection is accomplished through the making of the Critical Habitat of the Copper Redhorse (Moxostoma hubbsi) Order (the Order) under subsections 58(4) and (5) of SARA, which triggers the prohibition against the destruction of any part of the species' critical habitat in subsection 58(1) of SARA.

To avoid duplication of effort and to aim for greater transparency, the Minister of Fisheries and Oceans and the Minister of the Environment agreed to make a joint order to ensure that the critical habitat of the Copper Redhorse is legally protected in those areas where it is located outside of the Îles de Contrecœur National Wildlife Area, including the Saint-Ours Canal National Historic site.

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 included in the Public Registry. The recovery strategy or action plan must be based on the best available information. Among other things, it must, to the extent possible, identify the species' critical habitat (that is, the habitat necessary for a listed wildlife species' survival or recovery).

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 that identifies that critical habitat. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 2 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.

Copper Redhorse

The Copper Redhorse is a large-scaled fish that is endemic to southwestern Quebec, and is found only in the St. Lawrence River and some of its tributaries.

COSEWIC assessed the status of the Copper Redhorse and classified it as threatened in 1987, and as endangered in 2004 and 2014. In December 2007, the Copper Redhorse was listed as an endangered species on Schedule 1 of SARA. In 2012, the Recovery Strategy was published on the Public Registry. In the Recovery Strategy, critical habitat for the Copper Redhorse is identified as grass beds in the Montréal to Sorel portion of the St. Lawrence River, the littoral zone of the Richelieu River, and the rapids downstream from the Saint-Ours and Chambly dams of the Richelieu. A portion of the critical habitat falls in a place referred to in subsection 58(2) of SARA; specifically, the Îles de Contrecœur National Wildlife Area. This area is administered by Environment and Climate Change Canada. A description of that portion of critical habitat was included in the Canada Gazette on October 15, 2016, and the subsection 58(1) prohibition against the destruction of critical habitat applied to that area 90 days later.

As an endangered species listed under Schedule 1 of SARA, the following prohibitions in sections 32 and 33 of SARA automatically apply upon the listing of an aquatic species:

Parks Canada Agency jurisdiction

PCA administers a lock, a hydrographic dam and the Vianney-Legendre fish ladder at the Saint-Ours Canal National Historic Site of Canada. The operation of the dam is important in regulating water levels during low water flow periods and for public safety purposes during high water level periods, while allowing navigation to continue in accordance with the Canadian Navigable Waters Act. The Vianney-Legendre fish ladder at the Saint-Ours Canal National Historic Site of Canada has been identified as essential to support the improvement of habitat conditions necessary for all stages of the Copper Redhorse's life cycle, and for its survival and recovery. Because the Copper Redhorse makes use of the Vianney-Legendre fish ladder, the Minister responsible for PCA (Minister of the Environment) is the competent minister for individuals located in the ladder and in the rapids just downstream of it. PCA is leading the Vianney-Legendre fish ladder Conservation and Restoration project at Saint-Ours Canal National Historic Site of Canada, which is making significant contributions to the survival and recovery of the Copper Redhorse. PCA confirms that its regular dam life cycle management operations are undertaken in compliance with applicable laws, standards and best practices, while respecting sensitive periods for wildlife.

Assessment, mitigation measures and patrols by PCA law enforcement personnel also contribute to compliance with SARA prohibitions. As such, PCA's support and interventions are critical for the survival and recovery of Copper Redhorse.

Container port construction project

The Montreal Port Authority is proposing the construction of a container port terminal approximately 40 kilometres downstream from Montréal on the St. Lawrence River, within the critical habitat of the Copper Redhorse that will be protected by this Order. The project underwent an environmental assessment (EA) under the Canadian Environmental Assessment Act, 2012, led by the Impact Assessment Agency of Canada, which included public and Indigenous consultations. The Department of Fisheries and Oceans (DFO) was aware of the sensitive Copper Redhorse areas and took this into account while participating in the environmental assessment of the project. The EA final decision statement by the Minister of Environment and Climate Change was issued on March 1, 2021, and concluded in favour of the project. Following the completion of the EA process, the project is now being reviewed in light of SARA and of the Fisheries Act.

To lawfully conduct works, undertakings or activities that could result in contravention of the prohibitions found under the Fisheries Act or SARA, project proponents (e.g. Port of Montreal) must apply for and obtain an authorization under the Fisheries Act and a permit under SARA. The container port project is expected to have impacts on fish and fish habitat, including the Copper Redhorse and its critical habitat. In compliance with the Fisheries Act and SARA, the proponent must file offsetting plans as part of their application for an authorization under the Fisheries Act and a permit under SARA. More specific regulatory requirements are set out in the “Implementation, compliance and enforcement, and service standards” section of this document. On August 30, 2016, DFO received an application from the Montreal Port Authority for an authorization under the Fisheries Act relating to the port container project. The application review process had been paused while the EA process was ongoing, but has now resumed.

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 Copper Redhorse that is identified in the species' Recovery Strategy.

This Order applies to any ongoing or future activities that could result in the destruction of any part of the critical habitat of the Copper Redhorse outside of the Îles de Contrecœur National Wildlife Area, and enables the Crown to prosecute for any such unauthorized destruction.

Description

Critical habitat for the Copper Redhorse has been identified as consisting of grass beds in the St. Lawrence River, the littoral zone (that is, 0 to 4 m of the nearshore) of the Richelieu River, and the rapids below the Saint-Ours and Chambly dams, also in the Richelieu River. Adult Copper Redhorse prefer the shallow grass beds around islands and archipelagos. The grass beds have a slow-moving current and provide a highly productive habitat for feeding. At the present time, the Richelieu River tributary is the only body of water in which Copper Redhorse spawning has been confirmed. To date, two spawning grounds have been identified in the Richelieu River: the main one in the Chambly rapids archipelago and another in the channel downstream from the Saint-Ours dam. All known spawning sites are located in white water.

The Recovery Strategy included the following examples of activities likely to destroy critical habitat: construction of dams, construction of other infrastructure (e.g. bridges and marinas), infilling, bank construction (e.g. retaining walls), navigation, dredging, and pleasure-boating activities. Maps of the critical habitat can be found in the Recovery Strategy.

If new information becomes available to support changing the critical habitat of the Copper Redhorse, the Recovery Strategy 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 recovery strategy published in the Public Registry.

The Order will afford the competent ministers an additional tool to ensure that the critical habitat of the Copper Redhorse is legally protected. It will enhance 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.

Regulatory development

Consultation

The Recovery Strategy for Copper Redhorse was developed in consultation and partnership with the following stakeholders:

To the extent possible, the Recovery Strategy was prepared by DFO and PCA in cooperation with the Province of Quebec as per subsection 39(1) of SARA. In addition, a Copper Redhorse Recovery Team was created in order to support the implementation of conservation efforts. The Recovery team consists of a group of experts from various levels of government, industry, museum institutions and non-governmental organizations (that is, DFO, PCA, provincial departments, MELCC, MAPAQ, MFFP, Union des producteurs agricoles, Biodôme de Montréal, Parc Aquarium du Québec, Éco-Nature, Comité ZIP du lac Saint-Pierre, Comité ZIP des Seigneuries, and Comité de concertation et de valorisation du bassin versant).

Consultations required pursuant to SARA were held from July 22 to September 9, 2011, while the Recovery Strategy was in development. Consultation with a territorial minister was not required, as there are no lands in a territory that will be affected by this Order. Only lands managed under the authority of the Minister of Environment and Climate Change will be affected by this Order, because they are responsible for the Vianney-Legendre fish ladder. During the 2011 consultation period, letters or emails detailing the proposed Order were sent to representatives of MELCC, MFFP and MAPAQ. No comments were received on the identification of critical habitat or the use of an order to protect the critical habitat.

Consultations with Indigenous communities were undertaken concurrently with broader stakeholder consultations during the development of the Recovery Strategy. Letters or emails were sent to Indigenous communities and organizations near the Copper Redhorse's range, including the Odanak (Abénakis) and Kahnawake (Mohawk) communities, as well as an umbrella organization, l'Institut de développement durable des Premières Nations du Québec et du Labrador. No concerns or issues were communicated by Indigenous groups regarding the Order. The critical habitat of the Copper Redhorse 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 lands managed by any wildlife management boards.

The proposed version of the Recovery Strategy was posted on the Public Registry for a 60-day public comment period from March 2 to May 1, 2012. The proposed Recovery Strategy included the identification of critical habitat and its anticipated legal protection mechanism through an order made pursuant to section 58, which would prohibit the destruction of any part of the identified critical habitat. Letters and emails were sent to 53 partners, including the Province of Quebec, non-governmental organizations, agri-environmental clubs, the Union des producteurs agricoles, regional environmental councils, regional county municipalities, Hydro-Québec (H-Q), marine industries, port authorities — including the Montreal Port Authority — and fishers' associations.

Following consultations with these stakeholders with respect to the Recovery Strategy for the Copper Redhorse, no comments were received regarding the proposed critical habitat identification or protection. Most of the comments were editorial and minor except for a comment from H-Q. H-Q was of the view that hydroelectric dams are not a threat to the Copper Redhorse, and expressed concern that their identification in the Recovery Strategy as a threat could impact the perception of H-Q activities. However, H-Q was not opposed to the use of an order to protect Copper Redhorse critical habitat. H-Q's comments were submitted in 2012, and DFO replied to them and modified the Recovery Strategy where appropriate. Since then, there has been no communication between H-Q and DFO on this matter.

Prepublication in the Canada Gazette, Part I

The proposed Critical Habitat of the Copper Redhorse (Moxostoma hubbsi) Order was published in the Canada Gazette, Part I, on February 20, 2021, for a 30-day public comment period.

In response to the proposed Order, the Government of Quebec sent a letter to DFO and to Environment and Climate Change Canada (ECCC) indicating that the Province opposes the making of the Order. The letter refers to the Canada-Quebec agreement for the protection of species at risk in Quebec (the Agreement), section 4.1. This section of the Agreement states that Quebec has priority in providing leadership with respect to activities surrounding the protection and recovery of species at risk within its territory. The letter also refers to existing provincial laws and regulations that would effectively protect and promote the recovery of species at risk. Finally, the letter indicates that the decision to protect the critical habitat of the Copper Redhorse under SARA could generate substantial socioeconomic impacts in Quebec.

The making of the Order for the Copper Redhorse by the Minister of Fisheries and Oceans and the Minister of the Environment is a legislated requirement under section 58 of SARA. Making this Order will not impede the Province of Quebec's ability to lead on any common initiatives for the species, pursuant to the Agreement. The socioeconomic impacts associated with making the Order are reflected in the “Regulatory Analysis” section of this document.

Concerns have been raised by the City of Longueuil with respect to added regulatory burden or costs that might be associated with this Order. Specifically, the City of Longueuil is concerned that this added regulatory burden might lead to delays for certain activities that ensure essential services are provided to its citizens, including any work related to storm drains, facilities that provide drinking water, and wastewater treatment plants. Any work, undertaking, or activity resulting in the harmful alteration, disruption, or destruction of this fish's habitat is already prohibited by subsection 35(1) of the Fisheries Act, unless the requirements for an exception described in subsection 35(2) can be satisfied. More information is available on the DFO's projects near water web page and in the “Implementation, compliance and enforcement, and service standards” section of this document.

Modern treaty obligations and Indigenous engagement and consultation

The critical habitat of the Copper Redhorse 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. Under subsection 58(8) of SARA, 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 would be affected by this Order.

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 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 competent ministers 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 of Fisheries and Oceans complete discretion to authorize the destruction of fish habitat.

Regulatory analysis

Benefits and costs

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. In cases where a permit is required as a result of this Order, the permitting process is the same as is required for a Fisheries Act authorization. The Order itself does not, therefore, have an incremental impact with respect to regulatory burden or costs. However, the federal government may incur some minimal 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 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.

Small business lens

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

One-for-one rule

The one-for-one rule does not apply to this Order, as there are no anticipated additional administrative burden costs imposed on businesses. This 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. As such, this Order respects this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

The making of the Order for the Copper Redhorse by the Minister of Fisheries and Oceans and the Minister of the Environment will not impede the Province of Quebec's ability to lead on any common initiatives for the species pursuant to the Canada-Quebec agreement for the protection of species at risk in Quebec (the Agreement). The purpose of the Agreement is to establish the methods by which the parties will coordinate their activities in relation to the protection and recovery of species at risk of common interest and their habitats and will collaborate in order to avoid duplication. Its purpose is also to encourage the exchange of information and to improve knowledge about species at risk and wildlife species.

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, considering the existing federal regulatory mechanisms in place, this Order is not expected to have an important environmental effect on its own.

However, it is expected that, when all planned recovery activities and legal protections are considered together, these 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

No gender-based analysis plus (GBA+) impacts have been identified for this Order.

Implementation, compliance and enforcement, and service standards

Implementation

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

In cases other than on federal lands administered by PCA, when it is not possible to avoid the destruction of a part of the critical habitat of the Copper Redhorse, the proponent of the works, undertaking 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 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 73(6.1) of SARA are met. After it is entered into or issued, the Minister must comply with the requirements of subsection 73(7).

DFO provides a single window for proponents to apply for authorizations or permits when they propose conducting works, undertakings or activities in or near water. 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, provided that the Minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met. After it is issued, the Minister must comply with the requirements of subsection 73(7).

A SARA permit or Fisheries Act authorization that acts 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 permitting process is the same whether or not there is a critical habitat order in place in the affected area; the requirements of the Fisheries Act and SARA, including critical habitat considerations, were proactively considered by departmental staff during the review of a project. It is therefore not expected that there would be an increased administrative burden for a project proponent as a result of a critical habitat order.

PCA will be responsible for considering permit applications, compliance promotion and enforcement of the Order on lands and waters under its jurisdiction. Any works, undertakings or activities assumed by PCA that are likely to destroy the critical habitat of the Copper Redhorse are already subject to other federal regulatory mechanisms. As required by the previous Canadian Environmental Assessment Act, 2012, for ongoing projects before the coming into force of the new Impact Assessment Act (IAA) [2019], and all new projects under the IAA, activities proposed on lands and waters managed by PCA must be examined under PCA's impact assessment process. This assessment, including mitigation measures to address effects on natural and cultural ecosystems, helps ensure compliance with SARA prohibitions. In addition, lands and waters administered by PCA are patrolled and protected by PCA law enforcement personnel. These existing protection measures continue to apply now that the Order is in force.

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 Copper Redhorse 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 web page.

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