Critical Habitat of the Fawnsfoot (Truncilla donaciformis) Order: SOR/2022-216

Canada Gazette, Part II, Volume 156, Number 23

Registration
SOR/2022-216 October 20, 2022

SPECIES AT RISK ACT

Whereas the Fawnsfoot (Truncilla donaciformis) 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 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;

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

Therefore, the Minister of Fisheries and Oceans makes the annexed Critical Habitat of the Fawnsfoot (Truncilla donaciformis) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a.

Ottawa, October 17, 2022

Joyce Murray
Minister of Fisheries and Oceans

Critical Habitat of the Fawnsfoot (Truncilla donaciformis) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Fawnsfoot (Truncilla donaciformis), which is identified in the recovery strategy 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 orders.)

Issues

Fawnsfoot (Truncilla donaciformis) and Threehorn Wartyback (Obliquaria reflexa) are two freshwater mussel species found in Canada in southern Ontario. Both species have experienced a contraction of their distribution, with the Fawnsfoot’s range decreasing by about 51% in Canada. This is thought to be largely a result of the establishment of invasive dressenid mussels (Zebra Mussels and Quagga Mussels).

In August 2019, Fawnsfoot was listed as an endangered speciesfootnote 1 and Threehorn Wartyback was listed as a threatened speciesfootnote 2 under the Species at Risk Act footnote 3 (SARA). The critical habitatfootnote 4 for the Fawnsfoot and the Threehorn Wartyback was identified in the Recovery Strategy and Action Plan for the Fawnsfoot (Truncilla donaciformis) and Threehorn Wartyback (Obliquaria reflexa) in Canada (PDF) (the Recovery Strategy), which was posted on the Species at Risk Public Registry (the Public Registry) on April 21, 2022.

As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the endangered Fawnsfoot and threatened Threehorn Wartyback is protected by (a) provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11; or (b) 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. Its purpose is to

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. Based on the best available information and to the extent possible, the recovery strategy or action plan must include 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 final recovery strategy or action plan identifying that critical habitat is posted on the Public Registry. Critical habitat that is not located in a place referred to in subsection 58(2) of SARAfootnote 5 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 (this includes agreements under section 11 of SARA).

Fawnsfoot and Threehorn Wartyback

Fawnsfoot and Threehorn Wartyback are 2 of Canada’s 54 known freshwater mussel species. The Canadian distribution of both species is restricted to southern Ontario in the Great Lakes watershed.

The Fawnsfoot is a small freshwater mussel approximately 35 mm in length. It is generally found in deeper areas (1 to > 5 m) in large, slow- to moderate-flowing rivers, although it may also inhabit lakes and reservoirs. The current distribution of the species includes the Grand, Sydenham, and Thames rivers, Muskrat Creek (of the Saugeen River), the St. Clair River delta, and potentially the Welland River. The range of Fawnsfoot has been significantly reduced, by approximately 51%, in Canada. It is believed to have been extirpated from the Detroit and Niagara rivers, Lake Erie and the offshore waters of Lake St. Clair.

The Threehorn Wartyback is a medium-sized (average length of 40 mm) freshwater mussel that generally prefers large river habitats with moderate currents and firm bottoms (substrates) of gravel, sand and mud. It is currently present in the Grand, Sydenham, and Thames rivers. It has also recently been captured in the Detroit River. As with Fawnsfoot, the distribution of Threehorn Wartyback is believed to have undergone a contraction due to the establishment of invasive dreissenid mussels (Zebra Mussels and Quagga Mussels), which attach to the shells of native freshwater mussels, causing them to suffocate or die from lack of food. The Threehorn Wartyback appears to be extirpated from the offshore waters of Lake St. Clair and the Canadian side of Lake Erie.

The main threats facing both species include

In April 2008, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Fawnsfoot as endangered. In August 2019, Fawnsfoot was listed as an endangered species on the List of Wildlife Species at Risk (Schedule 1) of SARA.

In May 2013, COSEWIC assessed the Threehorn Wartyback as threatened. In August 2019, Threehorn Wartyback was listed as a threatened species on Schedule 1 of SARA.

As endangered and threatened aquatic species listed under Schedule 1 of SARA, the prohibitions in section 32 and section 33 of SARA automatically applied upon listing are the following:

In April 2022, the Recovery Strategy was posted on the Public Registry. The Recovery Strategy identifies critical habitat necessary to support the recovery of the Fawnsfoot and the Threehorn Wartyback.

Objective

The objective of this regulatory initiative is to trigger, through the making of critical habitat orders, the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Fawnsfoot and the Threehorn Wartyback that is identified in the Recovery Strategy for the species.

Description

Critical habitat for the Fawnsfoot and the Threehorn Wartyback has been identified in the Grand, East Sydenham, North Sydenham (Bear Creek), and Thames rivers. 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.

In the future, additional areas of potential critical habitat within the St. Clair River delta region will be considered in collaboration with Walpole Island First Nation.

The Critical Habitat of the Fawnsfoot (Truncilla donaciformis) Order and the Critical Habitat of the Threehorn Wartyback (Obliquaria reflexa) Order (the Orders) trigger the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Fawnsfoot and the Threehorn Wartyback, respectively. The Orders result in the legal protection of the species’ critical habitat identified in the Recovery Strategy.

If new information becomes available to support changing the critical habitat of the Fawnsfoot and the Threehorn Wartyback, the Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation). The Orders will apply to the revised critical habitat once included in an amended recovery strategy posted on the Public Registry.

The Orders afford the Minister an additional tool to ensure that the critical habitat of the Fawnsfoot and the Threehorn Wartyback is legally protected. It complements the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act. This subsection 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

Consultation on the critical habitat for Fawnsfoot and Threehorn Wartyback, and the intention to protect the species’ critical habitat through critical habitat orders, occurred during the development of the Recovery Strategy. Fisheries and Oceans Canada (DFO) developed the Recovery Strategy in cooperation with the Ontario Ministry of Natural Resources and Forestry, with support from Environment and Climate Change Canada, the Ontario Freshwater Mussel Recovery Team, the Upper Thames River Conservation Authority, the Bishop Mills Natural History Centre and the Lower Thames Valley Conservation Authority.

The proposed Recovery Strategy and Action Plan for the Fawnsfoot (Truncilla donaciformis) and Threehorn Wartyback (Obliquaria reflexa) in Canada (the proposed Recovery Strategy) was posted on the Public Registry for public comment between September 24, 2020, and December 17, 2020. Emails were sent on September 14, 2020, to 99 stakeholder groups to advise them of the public comment period. The groups included conservation authorities, municipalities, environmental non-government organizations (ENGOs), fishing organizations, and agricultural organizations. Indigenous groups were also notified of the public comment period (see section below for more information on Indigenous consultations).

During the public comment period, the Ontario Federation of Agriculture (OFA) expressed concerns that the proposed Recovery Strategy did not appropriately acknowledge the positive impact of the agricultural community. In their letter dated December 17, 2020, the OFA noted the importance of the agricultural community as environmental stewards, cautioning that the threat characterization should also incorporate the potential impacts of urban development and related stressors. These concerns were addressed through amendments to the final Recovery Strategy to the extent feasible.

No other comments were received from non-Indigenous groups or organizations on the proposed Recovery Strategy for the Fawnsfoot and Threehorn Wartyback, and no comments were received from the general public during the public comment period.

Modern treaty obligations and Indigenous engagement and consultation

DFO identified 16 Indigenous groups potentially having reserve lands or traditional lands near the distribution of the Fawnsfoot and Threehorn Wartyback. Among them, 4 groups — the Chippewa of the Thames First Nation, the Moravian of the Thames First Nation (Delaware Nation), the Munsee-Delaware First Nation, and the Oneida Nation of the Thames First Nation — have reserve lands that are bordered by a river containing critical habitat.

The 16 Indigenous groups were first notified of the opportunity to comment on the proposed Recovery Strategy on August 21, 2020, via a letter that was sent by email. They were subsequently provided notice on September 25, 2020, that the proposed Recovery Strategy was posted on the Public Registry. A reminder email was circulated on November 18, 2020, in advance of the closing of the comment period.

One of the four Indigenous groups with reserve land bordered by a river containing critical habitat (Chippewa of the Thames First Nation) provided questions and comments during the public comment period. These were primarily procedural in nature (e.g. critical habitat order enforcement, monitoring, and activities allowed). They were addressed via a virtual meeting between DFO and the First Nation on November 12, 2020. No additional follow-up was required.

In accordance with subsection 58(7) of SARA, the Minister of Indigenous Services was additionally consulted because the Orders could affect a reserve set apart for the use and benefit of a band under the Indian Act (i.e. the four First Nations whose reserves are bordered by a river containing critical habitat). On February 22, 2021, a letter was sent to the Director General of the Lands and Environment Management Branch at Indigenous Services Canada notifying them of DFO’s intention to make the Orders and providing them with an opportunity to comment. No comments were received.

Under SARA subsection 58(8), consultation with a wildlife management board was not required, as there are no areas in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species that will be affected by the Orders.

An assessment of modern treaty implications was completed. The assessment concluded that implementation of the Orders would likely not have an impact on the rights, interests, and/or self-government provisions of modern treaty partners. There is in fact no modern treaty that covers the species’ range.

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 of an aquatic species at risk.

Regulatory analysis

Benefits and costs

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of the Orders are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. Should a project proponent require a permit to affect the critical habitat of the Fawnsfoot or the Threehorn Wartyback, the permitting process is the same regardless of whether a critical habitat order is in place (refer to the “Implementation” section). The federal government may incur some minimal costs, as it may undertake some additional activities associated with compliance promotion and enforcement. These costs would be absorbed through existing funding allocations.

The compliance promotion and enforcement activities to be undertaken by DFO to fulfill requirements under SARA, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups). These behavioural changes could also result in incremental benefits to the species, their 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 resulting from these outreach activities.

Small business lens

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

One-for-one rule

The one-for-one rule does not apply to the Orders, as no anticipated additional administrative burden is anticipated to be imposed on businesses. The Orders 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 Orders will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

Fawnsfoot and Threehorn Wartyback are species also protected under Ontario’s Endangered Species Act, 2007. Other provincial legislation that provides habitat protection include, but may not be limited to, considerations under section 3 of Ontario’s Planning Act, section 2.1.7 of the Provincial Policy Statement (2020) under the Planning Act, as well as Ontario’s Lakes and Rivers Improvement Act.

There are no international trade agreements that will be impacted as a result of these Orders.

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 Orders, because the Orders are not expected to have an important environmental effect on their 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. DFO provides a single window for proponents to apply for authorizations under the Fisheries Act or permits under SARA when they propose conducting works, undertakings or activities in or near water.

In order to lawfully conduct an activity resulting in the destruction of any part of the critical habitat of the Fawnsfoot and Threehorn Wartyback, the proponent must apply for and obtain an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that would 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), by reviewing the permit if an emergency order is made with respect to the species.

Provided that the Minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met, 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). 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 permit application 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, are already considered by DFO 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.

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

Contact

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