Critical Habitat of the Redside Dace (Clinostomus elongatus) Order: SOR/2025-4

Canada Gazette, Part II, Volume 159, Number 4

Registration
SOR/2025-4 January 27, 2025

SPECIES AT RISK ACT

Whereas the Redside Dace (Clinostomus elongatus) 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 make the annexed Critical Habitat of the Redside Dace (Clinostomus elongatus) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a

Ottawa, January 6, 2025

Steven Guilbeault
Minister of the Environment

Ottawa, January 24, 2025

Diane Lebouthillier
Minister of Fisheries and Oceans

Critical Habitat of the Redside Dace (Clinostomus elongatus) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Redside Dace (Clinostomus elongatus) — 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.

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 Redside Dace (Clinostomus elongatus) is a small insectivorous fish found primarily in southern Ontario, where it most frequently occurs in streams flowing into western Lake Ontario. Urban development is considered to be the most significant threat acting upon Redside Dace populations and habitats in Ontario.

In April 2017, the Redside Dace was listed as an endangered speciesfootnote 1 under the Species at Risk Act footnote 2 (SARA). The critical habitatfootnote 3 of the Redside Dace was identified in the Recovery Strategy and Action Plan for the Redside Dace (Clinostomus elongatus) in Canada (the recovery strategy), which was posted on the Species at Risk Public Registry (the Public Registry) on July 29, 2024.

As the competent ministers under SARA, the Minister of Fisheries and Oceans (the Minister) and the Minister responsible for Parks Canada (the Minister of the Environment) are required to ensure that the Redside Dace’s critical habitat 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.

For those areas of critical habitat located within the Rouge National Urban Park,footnote 4 the Minister of the Environment has published in the Canada Gazette, a description of Redside Dace critical habitat in the park, in accordance with subsection 58(2) of SARA. This triggered the application of the prohibition in subsection 58(1) of SARA against destroying any part of the species’ critical habitat in Rouge National Urban Park.

For protection of critical habitat located outside of the Rouge National Urban Park, the Minister and the Minister of the Environment are making the Critical Habitat of the Redside Dace (Clinostomus elongatus) Order (the Order) under subsections 58(4) and 58(5) of SARA, to trigger the application of the prohibition in subsection 58(1) of SARA against destroying any part of the species’ critical habitat outside of areas referred to in subsection 58(2) 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 and action plan must include an identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ survival or recovery).

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).

Redside Dace

The Redside Dace is a small insectivorous fish that belongs to the true minnow family. It can be found in slow-moving sections of rivers and streams in the southern Great Lakes basin, the upper Mississippi drainage, and the upper Susquehanna River drainage. In Canada, the Redside Dace is found primarily in southern Ontario where it most frequently occurs in streams flowing into western Lake Ontario. It is also found in a few streams that drain into Lake Huron, Lake Erie, and Lake Simcoe.

Redside Dace populations have been lost from several tributaries to western Lake Ontario, and the extent of many remaining populations has been reduced within watersheds. Most of Canada’s Redside Dace populations are found in the “Golden Horseshoe Region” of Ontario, which is an area that is rapidly being developed. Urban development is considered to be the most significant threat acting upon Redside Dace populations and habitats in Ontario.

The main threats facing the species include

In August 2007, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Redside Dace and classified it as endangered. In April 2017, the Redside Dace was listed as an endangered species on the List of Wildlife Species at Risk (Schedule 1) of SARA.

COSEWIC reassessed the species in November 2017 and confirmed its classification as endangered.

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

On July 29, 2024, the recovery strategy was published on the Public Registry. The recovery strategy identifies the critical habitat of the Redside Dace.

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 Redside Dace that is identified in the recovery strategy for the species, outside of places referred to in subsection 58(2) of SARA.

Description

Critical habitat can be found in the watersheds of Two Tree River, Saugeen River, Gully Creek, Unknown Stan J, Irvine Creek, Spencer Creek, Bronte Creek, Fourteen Mile Creek, Sixteen Mile Creek, Credit River, Humber River, Don River, Rouge River, Duffins Creek, Carruthers Creek, Lynde Creek, and the Holland River.

The recovery strategy provides maps of the areas within which critical habitat is found. The critical habitat does not comprise all areas within the identified boundaries, but only those areas within the identified geographical boundaries where the described biophysical feature(s) and function(s) it supports occur. Refer to the recovery strategy for more information.

The Critical Habitat of the Redside Dace (Clinostomus elongatus) Order triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the Redside Dace critical habitat that is outside of places referred to in subsection 58(2) of SARA. If new information becomes available to support changing the critical habitat of the Redside Dace, 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 as final on the Public Registry.

The Order affords the ministers a tool to ensure that the critical habitat of the Redside Dace 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 unauthorized 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 Redside Dace, 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 Oceans Canada (DFO) and Parks Canada developed the recovery strategy with support from species experts, the Ontario Ministry of Environment, Conservation, and Parks (MECP), and the Ontario Ministry of Natural Resources.

The proposed recovery strategy was posted on the Public Registry on January 4, 2024, for a 60-day public comment period. Targeted stakeholder groups were notified on January 4, 2024, by email of the public comment period opening. These groups included conservation authorities (CAs), environmental non-governmental organizations, municipalities, and agricultural organizations.

First Nations were also notified of the public comment period for the proposed recovery strategy (see section below for more information on Indigenous consultations).

Comments were received from three CAs (Central Lake Ontario CA, Credit Valley CA, and Toronto and Region CA), two municipalities (Town of Oakville, Bruce County), one company involved in the energy sector (TC Energy), and two provincial ministries (Ministry of Transportation Ontario [MTO] and MECP). One member of the public also commented on the proposed recovery strategy. Comments were generally supportive.

The MTO, the MECP and TC Energy suggested revisions to the critical habitat identification. All three organizations were seeking alignment with the province’s (then) proposed regulatory amendments on habitat protection for Redside Dace under the Ontario Endangered Species Act, 2007 (ESA). However, since the proposed changes under the ESA would have limited the recovery potential for the species, were not based on the North American scientific standard that DFO applies (NatureServe 2024), and had not been finalized, no modifications to the recovery strategy were made as a result of these comments. DFO replied directly to the province after considering their feedback and has not received additional comments in response. On September 6, 2024, the MECP posted a notice on the Environmental Registry of Ontario indicating that the Ministry will not be proceeding with the proposed regulatory amendments regarding habitat protections for Redside Dace.

Modern treaty obligations and Indigenous engagement and consultation

DFO consulted 18 First Nations identified as those potentially having traditional lands near the distribution of the Redside Dace. There is no critical habitat located in rivers on or bordering reserve lands.

The 18 First Nations were invited to comment on the draft recovery strategy on August 12, 2022, via a letter that was sent by email, which also included a plain language summary of the document. They were subsequently provided notice on January 4, 2024, that the proposed recovery strategy was published on the Public Registry for a 60-day public comment period.

In response to the 2022 mail out, Hiawatha First Nation contacted DFO requesting a virtual meeting. This meeting was held on October 27, 2022, and community representatives at the meeting raised no particular concerns with the draft recovery strategy, the identified critical habitat or the plan to make a critical habitat order. No additional follow-up was required.

Two comments were received from First Nations on the proposed recovery strategy following its posting on the Public Registry for the 60-day public comment period. The first, from Alderville First Nation, indicated support for the document and concern regarding the proposed changes to the species’ habitat protection under the ESA that was put forward by the province of Ontario. DFO offered to meet with Alderville First Nation to discuss any comments or concerns they had with the proposed recovery strategy, while also indicating that DFO is not in a position to speak of the proposed changes to provincial habitat protections and associated implications. No reply has been received to date. The second comment was from Hiawatha First Nation and did not explicitly state support for the document, but did state that Redside Dace is an indicator species for water quality and represents a concern for First Nations.

Under subsection 58(7) of SARA, consultation with the Minister of Indigenous Services 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 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 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 modern treaty partners. There are no modern treaties in the area of the identified critical habitat, which is entirely within Ontario.

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.

According to jurisprudence, 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. According to this same jurisprudence, subsection 35(1) of the Fisheries Act does not provide equivalent legal protection to critical habitat as that of an order engaging subsection 58(1) of SARA, because subsection 35(2) of the Fisheries Act grants the Minister wide discretion to authorize works, undertakings and activities that result in the destruction of fish habitat. As a result, in most cases, the making of an order by the Minister is necessary to legally protect critical habitat of an aquatic species at risk.

Regulatory analysis

Benefits and costs

The cost-benefit analysis assesses the incremental impacts of the Order on ongoing activities and future projects that are currently under consideration and planned to be implemented. DFO and Parks Canada are not aware of any ongoing activities or projects currently under regulatory review that will require additional mitigation measures to protect the critical habitat of Redside Dace beyond the requirements of existing regulatory regimes.

The proponents of activities or projects that would result in the destruction of Redside Dace critical habitat already need to comply with existing regulatory regimes, which form part of the baseline for analysis.

All identified critical habitat for Redside Dace is already subject to the fish habitat protection provisions of the Fisheries Act, which prohibit works, undertakings and activities that result in the harmful alteration, disruption or destruction of fish habitat without authorization. The Minister has wide discretion when issuing Fisheries Act authorizations under paragraph 35(2)(b), including with respect to the consideration of measures to avoid, mitigate or offset the adverse effects on fish or fish habitat that result from the carrying on of a work, undertaking or activity being authorized.

Further, upon the listing of the Redside Dace as an endangered species under SARA, the species became protected by the automatic prohibitions of SARA, including the subsection 32(1) prohibition that makes it an offence for a person to kill, harm, harass, capture or take an individual without a SARA permit. Many activities that would destroy critical habitat would also be likely to cause harm to individuals. Where that is the case, an application for a SARA permit is required, given the effects of the activity on individuals of the species, even before the making of a critical habitat order. In such instances, the appropriate minister may issue the permit only if certain requirements of SARA are met, including (among other things) that the Minister form the opinion that (a) the activity will not jeopardize the survival or recovery of the species (the “jeopardy precondition”); and (b) all feasible measures to minimize impact on the species will be undertaken.

Finally, the Redside Dace is classified as an endangered species under Ontario’s ESA, affording additional provincial protection of the species and its habitat.

Project applications may be submitted to DFO or Parks Canada, as appropriate, in the coming years seeking authorization for works, undertakings or activities that may destroy a part of Redside Dace critical habitat. However, the nature and scope of these future projects are unknown at this time. As explained in the “Implementation” section, proponents of these not-yet-proposed projects will need to apply for a Fisheries Act authorization that has the same effect as a SARA permit to carry out their projects. The application process for a Fisheries Act authorization that has the same effect as a SARA permit is the same regardless of whether a critical habitat order is in place. For the Minister to authorize the project, the requirements of subsections 73(2) and 73(3) of SARA, among other requirements, will need to be met. This includes the requirements that the jeopardy precondition be met and that the Minister form the opinion that all feasible measures to minimize the impact on critical habitat will be taken. DFO may require additional information and measures to mitigate the impact on the species and its critical habitat as it relates to subsection 73(3) preconditions.

Accounting for current authorization/regulatory processes, it is anticipated that future not-yet-submitted projects will be subject to similar authorization terms and conditions, as they would have immediately before the making of the Order, including measures to avoid, mitigate and offset the adverse effects of the project on critical habitat. Therefore, based on the existing legislative schemes in place and the current information on the projects that may be forthcoming, the incremental impacts of making the Order, while unknown, are anticipated to be low.

The federal government may incur some negligible costs associated with the making of the Order, as it may undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations.

The compliance promotion and enforcement activities to be undertaken by the federal government 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 Canadians and Canadian businesses that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes 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. 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 Redside Dace and its habitat are also protected under Ontario’s ESA.

Other provincial legislation that provides habitat protection includes, but may not be limited to, considerations under section 2.1.7 of the Provincial Policy Statement, 2020 issued under section 3 of the Planning Act, which prohibits development and site alteration in the habitat of endangered and threatened species, except in accordance with provincial and federal requirements. In respect of the exercise of any authority that affects a planning matter, it must be consistent with the policy statements issued under section 3 of the Planning Act. This applies to the following authorities: a council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, a board, a commission or an agency of the Government, including the Tribunal. Also relevant is protection provided under the Lakes and Rivers Improvement Act in Ontario.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment (SEEA Directive), a preliminary scan concluded that a strategic environmental and economic assessment is not required.

Gender-based analysis plus

No impacts based on gender and other identity factors have been identified for this Order.

Implementation, compliance and enforcement, and service standards

Implementation

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 Redside Dace, the proponent must apply for and obtain an authorization under the Fisheries Act (under paragraph 35(2)(b)) 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. This includes the Minister forming the opinion that the activity will not jeopardize the survival or recovery of the species, and that all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals. After an agreement or a permit is 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. Section 74 of SARA allows for an agreement, a permit, a licence, an order, or other similar document, issued or made by the competent minister under another Act of Parliament to have the same effect as a SARA permit provided that the requirements of subsections 73(2) to (7) are met. This means that a paragraph 35(2)(b) Fisheries Act authorization may also function as a SARA permit, after fulfilling the SARA requirements.

Parks Canada has its own permitting process to issue a SARA permit, complementing a Fisheries Act authorization, when required. Parks Canada 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 assessed by Parks Canada that are likely to destroy the critical habitat of the Redside Dace are already subject to other federal regulatory schemes. As required by the Impact Assessment Act (IAA) [2019] and Parks Canada Directive on Impact Assessment, all new projects and activities that have the potential to cause adverse environmental effects on lands and waters managed by Parks Canada must be evaluated for their potential to cause significant adverse environmental effects through Parks Canada’s impact assessment process. This assessment, including mitigation measures to address effects on natural and cultural resources, helps ensure compliance with SARA prohibitions. In addition, lands and waters administered by Parks Canada are patrolled and protected by Parks Canada law enforcement personnel. These existing protection measures will continue to apply when the Order is in force.

A SARA permit or Fisheries Act authorization (or a permit authorized under any other applicable Act of Parliament) that has the same effect as a SARA permit, if approved, would contain the terms and conditions considered necessary for protecting the species and its critical habitat, minimizing the impact of the authorized activity on the species and its critical habitat, 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, SARA, or other Acts of Parliament, including critical habitat considerations, are already considered by DFO and Parks Canada staff during the review of an application.

The critical habitat of the Redside Dace is located in the path of the potential Highway 413, a proposed build of the MTO. DFO will consider an application for an authorization under paragraph 35(2)(b) of the Fisheries Act and section 73 of SARA once it is received, and will make a decision in accordance with the Acts and applicable regulations. As agreed upon in the Canada–Ontario Memorandum of Understanding on the Assessment of Effects in Areas of Federal Jurisdiction of the Highway 413 Project, the MTO and DFO will collaborate on potential measures to avoid, lessen, or mitigate, adverse effects on fish and fish habitat, including aquatic species at risk and their critical habitat. MTO will submit a request for review to DFO that outlines the specific impacts of the project on fish and fish habitat, including any aquatic species at risk and their critical habitat, as early as possible to support timely discussions as to whether the permit can be issued and, if so, about avoiding, mitigating and offsetting impacts on fish and fish habitat. In the submitted request for review, the MTO will also demonstrate how, in its view, the SARA permitting preconditions will be achieved. DFO will review the project for adverse effects on fish, fish habitat, aquatic species at risk and their critical habitat, including the Redside Dace.

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 Redside Dace 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 Parks Canada for activities within the Rouge National Urban Park. For more information, proponents should consult DFO’s projects near water webpage.

Contacts

Julie Châteauvert
Acting 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
30 Victoria Street
Gatineau, Quebec
J8X 0A8
Email: commentairesderegistreEEP-SARregistrycomments@pc.gc.ca