Critical Habitat of the Pugnose Minnow (Opsopoeodus emiliae) Order: SOR/2022-236
Canada Gazette, Part II, Volume 156, Number 24
SOR/2022-236 November 8, 2022
SPECIES AT RISK ACT
Whereas the Pugnose Minnow (Opsopoeodus emiliae) 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 recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
And whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2)footnote b of that Act;
Therefore, the Minister of Fisheries and Oceans makes the annexed Critical Habitat of the Pugnose Minnow (Opsopoeodus emiliae) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a.
Ottawa, November 8, 2022
Minister of Fisheries and Oceans
Critical Habitat of the Pugnose Minnow (Opsopoeodus emiliae) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Pugnose Minnow (Opsopoeodus emiliae), 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 Order.)
The Pugnose Minnow (Opsopoeodus emiliae) is a small freshwater fish species whose Canadian distribution is limited to a small area of southwestern Ontario. A contraction of the species’ distribution is thought to have occurred as more recent surveys have failed to detect Pugnose Minnow in two locations: the Thames River (presumed extirpated) and McDougall Drain (possibly extirpated).
In August 2019, the Pugnose Minnow was listed as a threatened speciesfootnote 1 under the Species at Risk Act footnote 2 (SARA). The critical habitatfootnote 3 of the Pugnose Minnow was identified in the Recovery Strategy and Action Plan for the Pugnose Minnow (Opsopoeodus emiliae) in Canada (PDF) [the Recovery Strategy], which was posted on the Species at Risk Public Registry (the Public Registry) on May 19, 2022.
As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the threatened Pugnose Minnow is legally 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.
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
- 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. 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 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 (this includes agreements under section 11 of SARA).
The Pugnose Minnow is a small (adults between 35 and 57 mm in length) silvery minnow distinguished by a bluntly rounded snout with a very small steeply upturned mouth, and, unlike any other Canadian minnow, the presence of nine principal dorsal rays. Its range in Canada is restricted to a small area in southwestern Ontario. It is found in the Detroit River and its tributary, the Canard River, as well as Lake St. Clair and six locations within the Lake St. Clair drainage. The species has historically been described as preferring slow-moving, clear, heavily vegetated water; however, populations in Canada are most often found in warm slow-moving areas of turbid streams with little to no aquatic vegetation, over silt/clay substrates, or slow-moving side channels of larger rivers with abundant vegetation. A decrease of the species’ distribution in Canada is thought to have occurred, as more recent surveys did not detect Pugnose Minnow in the Thames River (presumed extirpated) or McDougall Drain (possibly extirpated). Knowledge of population demographics (extent and abundance) is currently limited and remaining populations are small. Additional research and monitoring is required.
The main threats facing the species include
- turbidity and sediment loading;
- nutrient loading;
- habitat alteration;
- contaminants and toxic substances;
- invasive species; and
- incidental harvest.
In May 2000, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Pugnose Minnow and classified it as special concern. In June 2003, the Pugnose Minnow was listed as a species of special concern on the List of Wildlife Species at Risk (Schedule 1) of SARA. In May 2012, COSEWIC reassessed the species and changed its classification of the Pugnose Minnow to threatened. In August 2019, the species status on Schedule 1 of SARA was updated to threatened.
As a threatened aquatic species listed under Schedule 1 of SARA, the prohibitions in section 32 and section 33 of SARA are automatically applied upon listing:
- prohibition against killing, harming, harassing, capturing, or taking an individual of such species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of such species, or any part or derivative of such an individual; and
- prohibition against damaging or destroying the residence of one or more individuals of such species.
In May 2022, the Recovery Strategy was posted on the Public Registry. The Recovery Strategy identifies the critical habitat necessary to support the recovery of the Pugnose Minnow.
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 Pugnose Minnow that is identified in the Recovery Strategy for the species.
Critical habitat has been identified in the Detroit/Canard rivers, East Sydenham River, Little Bear Creek, Maxwell Creek, North Sydenham River, and Whitebread Drain/Grape Run. 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.
The Critical Habitat of the Pugnose Minnow (Opsopoeodus emiliae) 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 Pugnose Minnow critical habitat. It results in the legal protection of the critical habitat identified in the Recovery Strategy.
If new information becomes available to support changing the critical habitat of the Pugnose Minnow, the Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation). 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 Pugnose Minnow 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.
Consultation on the critical habitat for Pugnose Minnow, and the intention to protect the species’ critical habitat through a critical habitat order, occurred during the development of the Recovery Strategy. Fisheries and Oceans Canada (DFO) developed the Recovery Strategy in cooperation with the Province of Ontario’s Ministry of Natural Resources and Forestry (MNRF), formerly the Ministry of Northern Development, Mines, Natural Resources and Forestry (MNDMNRF).
A draft of the Recovery Strategy was circulated to the Essex Region Conservation Authority, Lower Thames Valley Conservation Authority, Upper Thames River Conservation Authority, St. Clair Region Conservation Authority, Ontario Federation of Hunters and Anglers, and certain universities for review prior to posting on the Public Registry. Comments were received from MNRF on the draft Recovery Strategy, related primarily to descriptions of critical habitat, population, physical characteristics, and the prioritization of listed studies. Edits were incorporated into the document accordingly.
The proposed Recovery Strategy and Action Plan for Pugnose Minnow (Opsopoeodus emiliae) in Canada (the proposed Recovery Strategy) was posted on the Public Registry for a 60-day public comment period between January 20, 2021, and March 21, 2021. Emails were sent on January 20, 2021, to 53 stakeholder groups to advise them of the public comment period. These groups included conservation authorities, municipalities, environmental non-government organizations, fishing organizations, and agricultural organizations. Indigenous groups were also notified of the public comment period (see section below for more information on Indigenous consultations). No comments were received from non-Indigenous groups or organizations, and no comments were received from the general public during the public comment period.
Modern treaty obligations and Indigenous engagement and consultation
DFO consulted 17 Indigenous groups identified as those potentially having reserve lands or traditional lands near the distribution of the Pugnose Minnow. Pugnose Minnow critical habitat has not been identified on any First Nation reserve lands.
Most of the Indigenous groups were first notified of the opportunity to comment on the draft Recovery Strategy on August 21, 2020, via email. The Walpole Island First Nation was notified on September 10, 2020. Questions were received from Chippewas of the Thames First Nation relating to critical habitat in general. The questions were primarily procedural in nature (e.g. critical habitat order enforcement, monitoring, activities allowed). These were applicable not only to Pugnose Minnow, but also to Fawnsfoot, Threehorn Wartyback, Silver Shiner and Lilliput, which formed part of the same consultation process. These questions were addressed via a virtual meeting with DFO on November 12, 2020. No additional follow-up was required.
All Indigenous groups were provided notice on January 20, 2021, that the proposed Recovery Strategy was posted on the Public Registry. A reminder email was circulated on March 17, 2021, in advance of the closing of the comment period. Only one response to this email was received, and this was from the Mississaugas of the New Credit First Nation stating it they had no comments at the time.
Under SARA’s subsection 58(7), consultation with the Minister of Indigenous Services Canada and a band under the Indian Act was not required, as there are no reserves or any other lands that are set apart for the use and benefit of such band that will be affected by the Order.
Under SARA’s 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 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. There is no modern treaty that covers the species’ range.
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.
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. Should a project proponent require a permit to affect the critical habitat of the Pugnose Minnow, the permit application process is the same, regardless of whether a critical habitat order is in place (refer to the Implementation section). However, 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, 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 resulting 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.
The one-for-one rule does not apply to the Order, as no additional administrative burden is anticipated to be 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.
The Pugnose Minnow is a 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 this Order.
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
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 Pugnose Minnow, 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 proactively 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 Pugnose Minnow 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.
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