Critical Habitat of the Atlantic Mud-piddock (Barnea truncata) Order: SOR/2023-221

Canada Gazette, Part II, Volume 157, Number 23

Registration
SOR/2023-221 October 20, 2023

SPECIES AT RISK ACT

Whereas the Atlantic Mud-piddock (Barnea truncata) 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 Atlantic Mud-piddock (Barnea truncata) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a.

Ottawa, October 18, 2023

Diane Lebouthillier
Minister of Fisheries and Oceans

Critical Habitat of the Atlantic Mud-piddock (Barnea truncata) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Atlantic Mud-piddock (Barnea truncata), 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.)

Issues

The Atlantic Mud-piddock (Barnea truncata) is a relatively small (3 cm to 5 cm long) intertidal bivalve mollusc whose only population in Canada is found in the Minas Basin in the Bay of Fundy, Nova Scotia. The Atlantic Mud-piddock is found in the intertidal zone, and is threatened by many anthropogenic stressors. The primary threat to the Atlantic Mud-piddock in Canada is climate change, which could result in habitat destruction through increased sedimentation, ice scouring, sea-level rise, and an increase in the frequency of major storm events.

In April 2017, the Atlantic Mud-piddock was listed as a threatened speciesfootnote 1 under the Species at Risk Act footnote 2 (SARA). The critical habitatfootnote 3 of the Atlantic Mud-piddock was identified in the final Recovery Strategy for the Atlantic Mud-piddock (Barnea truncata) in Canada (the Recovery Strategy), which was posted on the Species at Risk Public Registry (the Public Registry) on April 24, 2023.

As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the threatened Atlantic Mud-piddock is legally protected by (a) provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11; or (b) 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 on the List of Wildlife Species at Risk (Schedule 1) of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister 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).

Atlantic Mud-piddock

The Atlantic Mud-piddock is a bivalve mollusc. In Canada, the only population is distributed in the Minas Basin, within the inner Bay of Fundy, approximately 475 km from the nearest population in Maine. Also referred to as “fallen angelwing,” it has a thin, delicate, ridged shell that is greyish-white in colour and 3 cm to 5 cm long. There are no visible differences between males and females. The Atlantic Mud-piddock is found in the intertidal zone, which is a zone that is under water at high tide and largely uncovered by water at low tide (however, Atlantic Mud-piddocks require the persistence of water to survive, so they are found in tidal pools, for example). Atlantic Mud-piddocks live in individual burrows, releasing their eggs and sperm into the surrounding water. Fertilized eggs grow into larvae. After about 35 days of growth, the larvae settle and begin burrowing. The population size is unknown, but is thought to be stable.

In Canada, the species burrows into only one type of substrate called red mudstone, which is somewhat firm and offers protection. Red mudstone in the Minas Basin is extremely limited, and the total known suitable habitat area for the species is less than 1.84 kmfootnote 2. Once an Atlantic Mud-piddock larva settles on its preferred red mudstone substrate, it invests energy in creating a burrow that is essential to its survival. The Atlantic Mud-piddock’s burrow has been identified as its residence. The species becomes entrapped in its burrow as it grows, and it remains there for the duration of its life span (approximately 11 years).

In Canada, the Atlantic Mud-piddock is threatened by many anthropogenic stressors. Climate change poses the greatest risk to the population, the effects of which are likely to be complex and broadly distributed. In general, the species is threatened by processes that cause changes to the ocean bottom, particularly increases in sediment, such as sand or silt, over their habitat. These may occur as a result of

In November 2009, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed Atlantic Mud-piddock and classified it as threatened. In April 2017, the Atlantic Mud-piddock was listed as a threatened species on the List of Wildlife Species at Risk (Schedule 1) of SARA.

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

On April 24, 2023, the final Recovery Strategy was posted on the Public Registry. The Recovery Strategy identifies the critical habitat necessary to support the survival or recovery of the Atlantic Mud-piddock.

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 Atlantic Mud-piddock that is identified in the Recovery Strategy for the species.

Description

The Critical Habitat of the Atlantic Mud-piddock (Barnea truncata) 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 Atlantic Mud-piddock critical habitat. It results in the legal protection of the critical habitat identified in the Recovery Strategy.

Critical habitat for Atlantic Mud-piddock has been identified as the substrate at nine discrete sites within the Minas Basin: Port Williams, Spencer Point, Five Islands, Tennycape, Burntcoat Head, Noel Bay, Sloop Rocks, Shad Creek, and Mungo Brook. These intertidal sites contain red mudstone in association with tide pools, rivulets, resistant capstone, boulders/large cobbles, and patches. All habitat types, except for capstone, have water present at high and low tide. Capstone habitat retains moisture and provides shade to allow for Atlantic Mud-piddock persistence. Further critical habitat for this species is identified as the waters of the Minas Basin below the high tide mark along the contiguous shoreline.

If new information becomes available to support changing the critical habitat of the Atlantic Mud-piddock, the Recovery Strategy would be updated as appropriate (taking into account feedback from public consultation). The Order would 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 Atlantic Mud-piddock 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 Atlantic Mud-piddock, and the intention to protect the species’ critical habitat through a critical habitat order, occurred during the development of the Recovery Strategy for the species. Fisheries and Ocean Canada (DFO) shared the Recovery Strategy with the Province of Nova Scotia; the Department of Fisheries and Aquaculture made no comments regarding the proposed Order.

An early engagement workshop was held at the Bedford Institute of Oceanography in Dartmouth, in Nova Scotia, on June 15, 2018. The purpose of the workshop was to collaborate on setting the recovery direction for the Atlantic Mud-piddock and provide a forum for sharing ideas on potential research and management approaches to achieve recovery. This workshop included a discussion of critical habitat protection and identification. Input from this workshop was considered in the development of the Recovery Strategy. Invitations to attend the workshop were extended to provincial and federal government departments, Indigenous organizations, industry, and non-government organizations. Workshop participants included representatives from the following groups: Bird Studies Canada; Burntcoat Head Park; Fundy United Federation/Weir fish harvesters; Nova Scotia Department of Energy; Nova Scotia Museum, Saint Mary’s University; and the University of New Brunswick, Saint John.

A draft version of the Recovery Strategy was sent to relevant government departments (federal and provincial), Indigenous organizations, and stakeholders for a targeted external review period held from July 28, 2021, to September 13, 2021. Communications providing information on the identification of the Atlantic Mud-piddock critical habitat, and its anticipated protection through a critical habitat order were sent to those receiving the draft version of the Recovery Strategy for review. Feedback from this external review period was considered and incorporated into the proposed Recovery Strategy, as appropriate.

The proposed Recovery Strategy for the Atlantic Mud-piddock (Barnea truncata) in Canada was posted on the Public Registry between August 3, 2022, and October 2, 2022, for a 60-day public comment period. The Recovery Strategy stated that protections for the critical habitat of the Atlantic Mud-piddock were anticipated through the making of a critical habitat order under subsections 58(4) and (5) of SARA. These would in turn invoke the prohibition in subsection 58(1) against the destruction of critical habitat. Notifications of the upcoming publication of the proposed Recovery Strategy to the Public Registry were circulated to 49 targeted stakeholders on July 28, 2022, notifying them of the upcoming public comment period, upon posting to the Public Registry. No comments were received during the 60-day comment period. The final Recovery Strategy was published on April 24, 2023.

Indigenous groups were also notified of the public comment period for the proposed Recovery Strategy (see section below for more information on Indigenous consultations).

Modern treaty obligations and Indigenous engagement and consultation

There are no reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act that would be affected by the Order. Consultations required under SARA’s subsection 58(7) and 58(8) were therefore not required, as the Order does not affect lands set apart for the use and benefit of a band under the Indian Act or 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.

DFO engaged and consulted with 16 Indigenous groups: Acadia First Nation, Annapolis Valley First Nation, Assembly of Nova Scotia Mi’kmaq Chiefs (KMKNO), Bear River First Nation; Eskasoni First Nation, Glooscap First Nation, Maritime Aboriginal Peoples Council, Membertou First Nation, Millbrook First Nation, Native Council of Nova Scotia, Paq’tnkek Mi’kmaw Nation, Pictou Landing First Nation, Potlotek First Nation, Sipekne’katik Band, Wagmatcook First Nation, and Waycobah First Nation.

Each of the 16 Indigenous groups or organizations was invited to the early engagement workshop held June 15, 2018. The purpose of the workshop was to collaborate on setting the recovery direction for the Atlantic Mud-piddock and provide a forum for sharing ideas on potential research and management approaches to achieve recovery. This workshop included a discussion of critical habitat protection and identification. Input from this workshop was considered in the development of the Recovery Strategy.

These same 16 Indigenous groups were contacted as part of a targeted external review period held from July 28, 2021, to September 13, 2021, and were notified of the posting of the proposed Recovery Strategy on July 28, 2022. There were no comments received from Indigenous groups or organizations on the proposed Recovery Strategy during the comment period, and there were no comments received pertaining to critical habitat or the making of the Order. However, on October 12, 2022, the Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO) submitted comments in response to the 2021 consultation period, which recommended updating records of food, social or ceremonial use of the species; requested the inclusion of Mi’kmaq technical organizations in research and monitoring of the species; and recommended further research to identify critical habitat. These comments were incorporated into the final Recovery Strategy, as appropriate, and DFO submitted a response to the KMKNO. No further communications were received.

An assessment of modern treaty implications was completed. The assessment concluded that the implementation of the 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.

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 currently in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. The federal government may incur minimal costs, as it may undertake additional activities associated with compliance promotion and enforcement. These costs would be absorbed through existing funding allocations. No additional incremental costs to Canadians or Canadian businesses are anticipated. Should a project proponent require a permit to affect the critical habitat of the Atlantic Mud-piddock, the permit application process is the same regardless of whether a critical habitat order is in place or not (refer to the “Implementation” section).

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.

One-for-one rule

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. Consequently, the Order will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

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 goal 15 of the Federal Sustainable Development Strategy to protect and recover species, and conserve Canadian biodiversity.

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 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.

To lawfully conduct an activity resulting in the destruction of any part of the critical habitat of the Atlantic Mud-piddock, 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 person planning on undertaking an activity within the critical habitat of the Atlantic Mud-piddock 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