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Nooksack dace (Rhinichthys cataractae ssp.): critical habitat order

Registration

SOR/2016-82 May 2, 2016

SPECIES AT RISK ACT

Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order

Whereas the Nooksack dace (Rhinichthys cataractae ssp.) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act (see 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) of that Act;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote b), makes the annexed Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order.

Ottawa, April 21, 2016

Hunter Tootoo
Minister of Fisheries and Oceans

Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Nooksack dace (Rhinichthys cataractae ssp.), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.

2 (1) For greater certainty, section 1 applies to that species’ critical habitat, which is located within the Bertrand Creek, Brunette River, Fishtrap Creek and Pepin Creek (also known as Pepin Brook) watersheds. More specifically, section 1 applies to the reaches within those watersheds that consist of or are known to have previously consisted of more than 10% riffle by length, to all the aquatic habitats within those reaches, including riffle and shallow pool habitats, and to the riparian reserve strips of native vegetation on both banks of those reaches for their entire lengths, as set out in Table 1 of the schedule and as illustrated in the maps that follow that table.

(2) The critical habitat of the species includes the key features and attributes set out in columns 4 and 5 of Table 2 of the schedule.

Coming into Force

3 This Order comes into force on the day on which it is registered.

SCHEDULE

(Section 2)

Table 1

Reaches Within the Watersheds and Riparian Reserve Strips that Constitute the Critical Habitat

This table presents the aquatic habitats, including riffle and shallow pool habitats.
Item Column 1











Watershed		 Column 2










Reach Code (see note 1)		 Column 3









Reach Length (m)		 Column 4











Reach Start Point		 Column 5











Reach End Point		 Column 6

Width of Riparian Reserve Strip of Native Vegetation on Each Bank for Entire Reach Length (m)
1 Bertrand Creek BTD1 2408 latitude 49°00′07.96″ N, longitude 122°31′23.89″ W latitude 49°00′57.54″ N, longitude 122°31′22.84″ W 30
2 Bertrand Creek BTD2 1808 latitude 49°00′57.54″ N, longitude 122°31′22.84″ W latitude 49°01′33.71″ N, longitude 122°31′36.06″ W 25
3 Bertrand Creek BTD3 579 latitude 49°01′33.71″ N, longitude 122°31′36.06″ W latitude 49°01′43.47″ N, longitude 122°31′43.65″ W 25
4 Bertrand Creek BTD4 1844 latitude 49°01′43.47″ N, longitude 122°31′43.79″ W latitude 49°02′15.1″ N, longitude 122°32′02.71″ W 30
5 Bertrand Creek BTD5 652 latitude 49°02′15.1″ N, longitude 122°32′02.66″ W latitude 49°02′16.13″ N, longitude 122°31′32.48″ W 30
6 Bertrand Creek BTD6 351 latitude 49°02′16.17″ N, longitude 122°31′32.57″ W latitude 49°02′22.54″ N, longitude 122°31′19.8″ W 30
7 Bertrand Creek BTD7 449 latitude 49°02′22.54″ N, longitude 122°31′19.8″ W latitude 49°02′28.15″ N, longitude 122°31′02.32″ W 20
8 Bertrand Creek BTD8 1139 latitude 49°02′28.15″ N, longitude 122°31′02.39″ W latitude 49°02′30.62″ N, longitude 122°30′12,88″ W 25
9 Bertrand Creek BTD9 1104 latitude 49°02′30.64″ N, longitude 122°30′12.95″ W latitude 49°02′13.19″ N, longitude 122°29′32.8″ W 20
10 Bertrand Creek BTD13 356 latitude 49°02′18.89″ N, longitude 122°28′02.9″ W latitude 49°02′28.89″ N, longitude 122°27′57.39″ W 25
11 Bertrand Creek BTD17 616 latitude 49°03′11.45″ N, longitude 122°27′48.88″ W latitude 49°03′28.69″ N, longitude 122°27′58.91″ W 15
12 Bertrand Creek BTD18 637 latitude 49°03′28.65″ N, longitude 122°27′59″ W latitude 49°03′33.6″ N, longitude 122°28′23.27″ W 20
13 Brunette River BRN2 3702 latitude 49°14′01.47″ N, longitude 122°52′48.62″ W latitude 49°14′52.46″ N, longitude 122°55′00.98″ W 30
14 Brunette River BRN5 517 latitude 49°14′27.77″ N, longitude 122°57′45.31″ W latitude 49°14′18.66″ N, longitude 122°58′05.36″ W 15
15 Brunette River BRN16 1615 latitude 49°14′36.82″ N, longitude 122°56′06.59″ W latitude 49°15′19.07″ N, longitude 122°56′34.77″ W 15
16 Brunette River BRN17 725 latitude 49°15′19.07″ N, longitude 122°56′34.77″ W latitude 49°15′39.14″ N, longitude 122°56′24.4″ W 15
17 Brunette River BRN20 2362 latitude 49°14′49.05″ N, longitude 122°54′31.94″ W latitude 49°15′46.53″ N, longitude 122°53′50.68″ W 15
18 Brunette River BRN21 1052 latitude 49°15′46.52″ N, longitude 122°53′50.66″ W latitude 49°16′10.32″ N, longitude 122°53′26.92″ W 10
19 Brunette River BRN27 500 latitude 49°15′54.63″ N, longitude 122°53′53.26″ W latitude 49°16′09.6″ N, longitude 122°53′54.38″ W 10
20 Brunette River BRN33 665 latitude 49°14′10.05″ N, longitude 122°56′02.82″ W latitude 49°13′52.55″ N, longitude 122°55′54.79″ W 10
21 Brunette River BRN36 279 latitude 49°14′08.29″ N, longitude 122°56′03.09″ W latitude 49°13′59.85″ N, longitude 122°56′06.6″ W 10
22 Fishtrap Creek FTP1 1984 latitude 49°00′08.09″ N, longitude 122°24′24.82″ W latitude 49°01′02.45″ N, longitude 49°01′02.45″ W 30
23 Fishtrap Creek FTP2 1239 latitude 49°01′02.63″ N, longitude 122°24′14.62″ W latitude 49°01′29.22″ N, longitude 122°23′42.31″ W 30
24 Fishtrap Creek FTP3 962 latitude 49°01′29.15″ N, longitude 122°23′42.18″ W latitude 49°01′27.53″ N, longitude 122°23′04.31″ W

(a) left bank: 15

(b) right bank: 20
25 Fishtrap Creek FTP4 460 latitude 49°01′27.56″ N, longitude 122°23′04.36″ W latitude 49°01′40.21″ N, longitude 122°22′57.51″ W 20
26 Fishtrap Creek FTP5 1300 latitude 49°01′40.18″ N, longitude 122°22′57.51″ W latitude 49°02′20.63″ N, longitude 122°22′50.49″ W 20
27 Fishtrap Creek FTP6 458 latitude 49°02′20.65″ N, longitude 122°22′50.35″ W latitude 49°02′34.05″ N, longitude 122°22′44.6″ W 15
28 Fishtrap Creek FTP10 282 latitude 49°03′05.78″ N, longitude 122°21′54.74″ W latitude 49°03′11.49″ N, longitude 122°21′50.08″ W 15
29 Fishtrap Creek FTP11 1251 latitude 49°03′11.49″ N, longitude 122°21′50.08″ W latitude 49°03′43.72″ N, longitude 122°22′13.03″ W 15
30 Fishtrap Creek FTP12 476 latitude 49°03′43.7″ N, longitude 122°22′13.07″ W latitude 49°03′58.17″ N, longitude 122°22′07.89″ W 10
31 Pepin Creek PEP1 191 latitude 49°00′08.34″ N, longitude 122°28′26.11″ W latitude 49°00′08.57″ N, longitude 122°28′16.9″ W 20
32 Pepin Creek PEP2 926 latitude 49°00′08.57″ N, longitude 122°28′16.9″ W latitude 49°00′34.25″ N, longitude 122°28′14.93″ W 15
33 Pepin Creek PEP5 540 latitude 49°00′41.61″ N, longitude 122°28′06.16″ W latitude 49°00′47.19″ N, longitude 122°27′41.86″ W 30
34 Pepin Creek PEP8 326 latitude 49°01′00.9″ N, longitude 122°26′35.68″ W latitude 49°01′03.37″ N, longitude 122°26′22.49″ W 30
35 Pepin Creek PEP17 669 latitude 49°01′01.29″ N, longitude 122°26′29.16″ W latitude 49°01′20.22″ N, longitude 122°26′28.5″ W 20
36 Pepin Creek PEP18 263 latitude 49°01′20.22″ N, longitude 122°26′28.5″ W latitude 49°01′27.43″ N, longitude 122°26′30.39″ W 10
Maps

Map 1: Critical Habitat -- Bertrand Creek Watershed

Map - Detailed information can be found in the surrounding text.

Map 2: Critical Habitat -- Brunette River Watershed

Map - Detailed information can be found in the surrounding text.

Map 3: Critical Habitat -- Fishtrap Creek Watershed

Map - Detailed information can be found in the surrounding text.

Map 4: Critical Habitat -- Pepin Creek Watershed

Map - Detailed information can be found in the surrounding text.

Table 2

Key Features and Attributes of the Critical Habitat

This table presents the key features and attributes of the critical habitat.
Item Column 1

Geographic Location		 Column 2

Life Stage		 Column 3


Function		 Column 4


Features		 Column 5


Attributes
1 Reaches within Bertrand Creek, Brunette River, Fishtrap Creek and Pepin Creek watersheds Adult and juvenile Spawning, nursery, rearing and feeding Riparian habitat
  • Native riparian vegetation that is continuous for the entire length of the reach and extends laterally (inland) from the top of the bank to a width equal to the widest zone of sensitivity (calculated using methods consistent with those used under the British Columbia Riparian Areas Regulation) in order to:
    • -- protect the integrity of aquatic features such as riffle and shallow pool habitat
    • -- provide large and small woody debris
    • -- provide localized bank stability
    • -- provide shade to buffer instream temperatures
    • -- provide terrestrial insect input
    • -- limit entry of additional nutrients
2 Reaches within Bertrand Creek, Brunette River, Fishtrap Creek and Pepin Creek watersheds Adult Spawning (April – July) Riffle habitat
  • Loose gravel and cobble substrates
  • Sufficient water velocity (> 0.25 m/s) and flow to support riffles
  • Dissolved oxygen (≥ 5 mg/L)
  • Little or no additional sediment
  • Few or no additional nutrients
  • Adequate quantity and quality of food supply (e.g. riffle-dwelling insects)
3 Reaches within Bertrand Creek, Brunette River, Fishtrap Creek and Pepin Creek watersheds Juvenile Nursery and rearing Shallow pool habitat
  • Water depth of 10 – 20 cm
  • Sand, mud or leaf litter substrates
  • Adequate quantity and quality of food supply (e.g. chironomid pupae and ostracods)
  • Location beside riffle habitats
  • Dissolved oxygen (≥ 5 mg/L)
  • Little or no additional sediment
  • Few or no additional nutrients
4 Reaches within Bertrand Creek, Brunette River, Fishtrap Creek and Pepin Creek watersheds Juvenile Feeding Shallow pool habitat
  • Water depth of 10 – 20 cm
  • Sand, mud or leaf litter substrates
  • Adequate quantity and quality of food supply (e.g. chironomid pupae and ostracods)
  • Location beside riffle habitats
  • Dissolved oxygen (≥ 5 mg/L)
  • Little or no additional sediment
  • Few or no additional nutrients
Adult and juvenile Riffle habitat
  • Loose gravel and cobble substrates
  • Sufficient water velocity (> 0.25 m/s) and flow to support riffles
  • Dissolved oxygen (≥ 5 mg/L)
  • Little or no additional sediment
  • Few or no additional nutrients
  • Adequate quantity and quality of food supply (e.g. riffle-dwelling insects)

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

In 1996, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Nooksack Dace (Rhinichthys cataractae) as endangered. The assessment was based upon the best available information on the biological status of the species, including scientific knowledge. This status was re-examined and confirmed in May 2000 and again in April 2007. An “endangered species” is defined under the Species at Risk Act (SARA) as a wildlife species that is facing imminent extirpation or extinction.

The assessment of the status of the species was provided to the Minister of the Environment and to the Canadian Endangered Species Conservation Council, which consists of the Minister of the Environment, the Minister of Fisheries and Oceans, the Minister responsible for the Parks Canada Agency (currently the Minister of the Environment) and the provincial ministers in British Columbia responsible for the conservation and management of the Nooksack Dace.

The Nooksack Dace was included in Part 2 of Schedule 1 of SARA as an endangered species when the Act came into force.

As a result of the addition of Nooksack Dace to Schedule 1 of SARA, the competent minister was required to prepare a recovery strategy for the species. The recovery strategy was prepared by the Minister of Fisheries and Oceans in cooperation with the province of British Columbia, the University of British Columbia, the Township of Langley, and species experts in the private sector.

The final amended recovery strategy for the Nooksack Dace (Rhinichthys cataractae) in Canada, which includes an identification of the species’ critical habitat, was posted on the Species at Risk Public Registry (SAR Public Registry) on June 9, 2008. (see footnote 1) Within Canada, the Nooksack Dace can be found in the watersheds of four lowland streams in British Columbia’s Lower Mainland and Fraser Valley: the Brunette River; Bertrand Creek; Fishtrap Creek; and Pepin Creek (also known as Pepin Brook). The Nooksack Dace is extirpated from some tributaries in Canadian watersheds where it was abundant in the 1960s (McPhail 1997).

Nooksack Dace are strongly associated with riffle habitats (see footnote 2) (McPhail 1997) (see footnote 3) and the proportion of riffle in a reach (see footnote 4) is the strongest predictor of their presence (Pearson 2004a). (see footnote 5) Home range size is typically very small (less than 50 metres of channel) although a few individuals venture for at least hundreds of metres (Pearson 2004a). The major factor limiting population abundance and distribution is the availability of high quality habitat. Nooksack Dace adults and juveniles use riffle and shallow pool habitats for feeding, spawning and rearing.

As described in the recovery strategy, critical habitat for the Nooksack Dace consists of reaches in the Brunette River, Bertrand Creek, Fishtrap Creek and Pepin Creek (also known as Pepin Brook) that consist of, or are known to have previously consisted of, more than 10% riffle by length. (see footnote 6) It includes all aquatic habitats, including riffles and shallow pools, and riparian reserve strips of native vegetation on both banks, for the entire length of the reach, which range in width from 10–30 metres. This width allows the native riparian vegetation to protect the integrity of aquatic critical habitat features such as riffle and shallow pool habitats; provide large and small woody debris; provide localized bank stability; provide shade to buffer instream temperatures; provide terrestrial insect input; and limit entry of additional nutrients. The combined length of critical habitat for the Nooksack Dace within the four watersheds is 33.1 km, out of a total of 93.9 km of surveyed stream channel.

Once the critical habitat of an aquatic species listed as endangered (other than individuals in or on federal lands administered by the Parks Canada Agency) is identified in a recovery strategy or in an action plan that is posted as final on the SAR Public Registry, the Minister of Fisheries and Oceans must ensure that the entire critical habitat is legally protected. In most cases, this will be accomplished through the making of a critical habitat order, which triggers the prohibition against the destruction of any part of the critical habitat.

Therefore, this Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order (hereafter referred to as the Order) is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Background

The Government of Canada is committed to conserving biodiversity and the management of sustainable aquatic ecosystems, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, the Species at Risk Act (see footnote 7) received royal assent in 2002. Its purposes are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

Species listed on the List of Wildlife Species at Risk set out in Schedule 1 of SARA benefit from recovery planning and protections under SARA. In general, as stated in the preamble of SARA, “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons,” which indicates that recovery would hold value for Canadians. Research confirms that Canadians value the conservation of species at risk and measures taken to conserve their preferred habitat. Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. Protecting species and their habitats helps preserve biodiversity -- the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life. As a result, for individuals of aquatic species listed as extirpated, endangered or threatened, steps taken to help protect and recover them include

These prohibitions do not apply to activities authorized under SARA.

The protection of critical habitat is important for many species’ survival and recovery. The protection of the critical habitat of aquatic species is a legal requirement under sections 57 and 58 of SARA.

Orders made under subsections 58(4) and (5) of SARA, and which trigger the prohibition in subsection 58(1) against the destruction of any part of the species’ critical habitat, are made to legally protect the critical habitat and contribute to the broader goals set out by the Canadian Biodiversity Outcomes Framework and its commitments to the United Nations’ Convention on Biological Diversity.

Objectives

In 2005, the Canadian Council of Ministers of the Environment instructed the Federal-Provincial-Territorial Biodiversity Working Group to develop a corresponding outcomes-based framework for guiding and monitoring implementation of the Canadian Biodiversity Strategy. The Canadian Biodiversity Outcomes Framework was approved by ministers responsible for the environment, forests, parks, fisheries and aquaculture, and wildlife in October 2006. As part of the Biodiversity Outcomes Framework, Conservation and Use Outcomes were identified, including

This Order contributes to and aligns with these broader Biodiversity Outcomes Framework goals. The Order legally protects the critical habitat of the Nooksack Dace by triggering the prohibition against the destruction of any part of its critical habitat.

The “endangered” SARA status of the Nooksack Dace was the result of an assessment undertaken by COSEWIC, and was based on the species’ small distribution and continuing decline in quality of habitat. The species is considered a habitat specialist dependent on stream riffles with loose, small grained substrates. It is known in Canada from only four locations in southwestern British Columbia, where its area of occupancy is severely limited, and subject to ongoing physical destruction of riffle habitat by urban, industrial and agricultural practices (e.g. dredging, channelization). Streams where the species is found are also impacted by lack of water in late summer due to ground and surface water extraction. Other activities have led to sediment accumulation in riffles caused by bank erosion resulting from gravel mining and/or runoff from urban storm drains, leading to further degradation of water quality and habitat.

The population and distribution objectives outlined in the recovery strategy -- “to ensure long-term viability of Nooksack Dace populations throughout their natural distribution in Canada” -- are considered to be both technically and biologically feasible. However, it is highly likely the species will remain at some risk due to the continued pressure on its habitats from a rapidly growing human population in the Fraser Valley. Recovery of the species will involve, among others, establishing and maintaining adequate base flows; protecting existing habitat, restoring lost or degraded habitat and creating new habitat; reducing sediment and harmful substances entry into streams; reducing the fragmentation of instream and riparian habitats; and preventing new introductions of predator species.

A number of key recovery objectives are proposed in the recovery strategy to meet the population and distribution objective:

Description

The Order is made to satisfy the obligation to ensure that the Nooksack Dace critical habitat is legally protected. With this Order, the Nooksack Dace will benefit from the prohibition in subsection 58(1) of SARA against the destruction of any part of its critical habitat. The prohibition will apply to anyone undertaking activities in and around the Nooksack Dace critical habitat that would result in the destruction of any part of it. The Order will serve to

As a result of the Order, the prohibition in subsection 58(1) of SARA will apply to any ongoing or future human activities that could result in the destruction of any part of the Nooksack Dace critical habitat. This will further support management of human activities in the critical habitat and allow for the prosecution of any unauthorized destruction of the critical habitat under SARA.

Under SARA, an activity that will destroy a part of the species’ critical habitat may be permitted by the Minister if (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or (c) affecting the species is incidental to the carrying out of the activity. The permit may be issued only if, among other things, the Minister is of the opinion that three conditions are met:

Examples of threats to the habitat of the Nooksack Dace include, but are not limited to, physical destruction of critical habitat; seasonal lack of water; sediment deposition; riffle loss to beaver ponds; and habitat fragmentation. Introduced predators are widespread in the range, but probably have minimal impacts on Nooksack Dace because of lack of habitat overlap. Low oxygen levels and toxicity are significant threats in some sections of at least one watershed, but do not threaten the species throughout its range. Examples of activities likely to destroy critical habitat of this species include (see footnote 11)

It is important to note that these examples of activities are not prohibited; rather, it is the destruction of critical habitat caused by human activities that will be prohibited once the Order is made. Under certain conditions, competent ministers may authorize activities which would otherwise contravene the SARA prohibitions. SARA provides tools such as permits that can be issued with conditions and conservation agreements that can be entered into by the Minister of Fisheries and Oceans with any Government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild. SARA also allows for the making of regulations and codes of practice, national standards or guidelines with respect to the protection of critical habitat. A person, who, without a permit, carries out an activity that contravenes one of the prohibitions under SARA, commits an offence. The Act provides for penalties for contraventions, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measures agreements are also available.

The Order comes into force on the day it is registered and triggers the prohibition in subsection 58(1) of SARA which confers legal protection to the Nooksack Dace critical habitat. This will facilitate efforts to support the survival and recovery of the species.

Consultation

Consultations on the Nooksack Dace critical habitat and proposed measures to protect it from destruction (i.e. the Order) were conducted as part of the consultations on the recovery strategy for the species, and draft joint action plan for Nooksack Dace and Salish Sucker, respectively. An assessment of potential critical habitat for Nooksack Dace was reviewed by the Canadian Science Advisory Secretariat Consultation (DFO 2007) in October 2007. Consultations on critical habitat were undertaken in February 2008 and included letters to First Nations, landowners, and other interested parties, followed by presentations and discussion sessions with local First Nations, the municipalities of Abbotsford, Langley, Burnaby and New Westminster and the province of British Columbia. Meetings with regional agriculture committees also occurred.

The proposed amended recovery strategy for Nooksack Dace was posted for comment on the SAR Public Registry in March 2008, and the final version was posted in June 2008. In February and March 2012, Fisheries and Oceans Canada held consultations on the draft action plan for Nooksack Dace and Salish Sucker. Because the draft action plan addressed both species, consultations were done simultaneously for the Nooksack Dace and Salish Sucker. These consultations addressed various elements of the draft action plan such as recovery measures and the making of orders, which would prohibit the destruction of any part of the species’ critical habitat.

During this time, the following consultation activities relevant to Nooksack Dace critical habitat protection were undertaken by the Department:

A total of 91 people participated in the workshops and open houses detailed above. Seven feedback forms (see footnote 15) and three email inquiries addressing Nooksack Dace were received. No response was received from First Nations.

Overall, environmental groups, utilities, local governments and many landowners were supportive of the Order and wanted the Department to provide further guidance and commit to additional enforcement of critical habitat protection, while some landowners, the regional government and some groups in the agricultural community were concerned with the implications of the use of an order. The level of participation in the consultation activities may suggest that many landowners may not have strong feelings about the use of an order or the implementation of an action plan.

Specific comments regarding the Order included: requests for more specific guidance for landowners and local government on how critical habitat destruction can be avoided; questions regarding implications of the Order, including the identification of the need for additional education, compliance promotion, and enforcement efforts specific to the Order; concerns regarding potential impacts of the Order on existing land use; questions regarding how the Order aligns with the Fisheries Act and other existing legislation; and a request for further scientific study and changes to critical habitat for Nooksack Dace in the Brunette River watershed.

As communicated during the consultation sessions, the Department of Fisheries and Oceans (DFO) will continue working towards integrating SARA into existing Fisheries Act processes in order to create a process that is as streamlined as possible for proponents. DFO will also be working to develop additional guidance where needed; for example, to inform landowners and others around management practices that could help avoid the destruction of critical habitat. DFO will also develop a communications plan for the Order to protect critical habitat for Nooksack Dace. If new scientific information supporting changes to Nooksack Dace critical habitat becomes available, DFO would update the recovery strategy as appropriate.

Rationale

Purpose

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy or action plan on the SAR Public Registry. Critical habitat not mentioned in subsection 58(2) must be protected either by the application of the prohibition against the destruction of 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 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an order under subsections 58(4) and (5) of SARA. Therefore, this Critical Habitat of the Nooksack Dace (Rhinichthys cataractae ssp.) Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Existing regulatory mechanisms

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Nooksack Dace are currently already subject to other federal regulatory mechanisms.

Table 1. Examples of key existing federal regulatory mechanisms that already apply to the critical habitat of the Nooksack Dace

This table presents the examples of key existing federal regulatory mechanisms that already apply to the critical habitat of the Nooksack Dace.
Act or Regulation Application to critical habitat
Species at Risk Act, subsection 32(1)

Prohibits, among other things, the killing, harming or harassing of individuals of the Nooksack Dace. Activities that would contravene this prohibition require an authorization under SARA in order to proceed. Activities likely to destroy critical habitat are also likely to kill, harm or harass individuals of this species.

Therefore, anyone intending to carry out such activities is already subject to this prohibition.
Species at Risk Act, section 74 Under this section an agreement, permit, licence, order or other similar document authorizing a person or organization to engage in an activity affecting, among other things, critical habitat, that is entered into, issued or made by the competent minister under another Act of Parliament has the same effect as an agreement or permit under subsection 73(1) of SARA if, among others, before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met.
 

The Department of Fisheries and Oceans currently provides mechanisms for ensuring that authorizations issued under other federal legislation applicable to the critical habitat of the Nooksack Dace have the same effect as permits issued under SARA.

Additional detail is provided in the “Application of critical habitat Order” section below.
Species at Risk Act, subsections 75(1) and (2)

Allows a competent minister to add terms and conditions to protect, among other things, any part of critical habitat, to any agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting, among other things, the critical habitat of the Nooksack Dace that is entered into, issued or made by the competent minister under another Act of Parliament.

A competent minister may also revoke or amend any term or condition in any of those documents to protect, among other things, identified critical habitat.
Species at Risk Act, subsection 77(1)

Under this provision, any person or body, other than a competent minister, authorized under any other Act of Parliament other than SARA, to issue or approve a licence, a permit or any other authorization that might result in the destruction of any part of the critical habitat of the Nooksack Dace may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species’ critical habitat and is of the opinion that

  • (a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat have been considered and the best solution has been adopted; and
  • (b) all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat.

To date, the Minister of Fisheries and Oceans has not been consulted on the issuance of any licences, permits or other authorizations that might result in the destruction of any part of the critical habitat of the Nooksack Dace. The Department of Fisheries and Oceans works proactively with other departments to ensure that critical habitat destruction is avoided or mitigated to the extent possible.
Species at Risk Act, section 79

A person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and an authority who makes a determination in relation to a project on federal lands under section 67 of the Canadian Environmental Assessment Act, 2012, must notify the competent minister(s) of the project if it is likely to affect a listed species or its critical habitat.

In such a case, the person must identify the adverse effects of the project on the listed wildlife species and its critical habitat. If the project is carried out, the person must ensure that measures are taken (1) to avoid or lessen any adverse effects the project may have on a listed wildlife species and its critical habitat; and (2) to monitor them. These measures must be taken in a way that is consistent with any applicable recovery strategy and action plans. As the critical habitat of the Nooksack Dace was identified in a revised recovery strategy published in June 2008, all projects affecting critical habitat are already subject to this provision.
Fisheries Act, section 20

Section 20 relates to fish passage and the maintenance of water flow. This authority can be exercised to improve fish passage, prevent harm to fish or improve flow to areas below an obstruction.

This authority to require provision for the flooding of fish habitat or for fish passage can contribute, respectively, to the protection of the critical habitat directly, or indirectly by providing for the species’ access to the critical habitat.
Fisheries Act, section 35

Prohibits the carrying on of any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery unless authorized.

Serious harm to fish is defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Thus, given that “serious harm to fish” encompasses destruction of fish habitat, the prohibition under section 35 contributes to the protection of critical habitat of the Nooksack Dace.

Additional detail is provided in the “Application of critical habitat Order” section below.
Fisheries Act, section 36

Prohibits the deposit of deleterious substances in waters frequented by fish, where such deposits may be deleterious to fish, fish habitat or the use of fish, unless authorized by regulation.

Thus, prohibition of the deposit of deleterious substances in areas identified as critical habitat of the Nooksack Dace would also contribute to the protection of the critical habitat.
Fisheries Act, section 37

Provides authority to request plans and specifications for works, undertakings or activities that may result in serious harm to fish or the deposit of a deleterious substance, to determine what measures could be taken to prevent or mitigate these effects and to make orders to require the modification, restriction or closing of the work, undertaking or activity.

This authority contributes to the protection of the critical habitat of the Nooksack Dace from a work, undertaking or activity that could result in serious harm to fish or the deposit of a deleterious substance.
Canadian Environmental Assessment Act, 2012

The proponent of any designated project in the critical habitat of the Nooksack Dace must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect, unless

  • (a) the Canadian Environmental Assessment Agency makes a decision, pursuant to the Act, that no environmental assessment of the designated project is required; or
  • (b) the proponent complies with the conditions included in the decision statement with respect to that designated project.
 

The Act requires that environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project include, among other things, a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:

  • (i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act; and
  • (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act.

Complementary provincial regulatory efforts to promote the survival and recovery of the species apply to areas identified as Nooksack Dace critical habitat (Table 2).

Table 2. Existing provincial regulatory mechanisms that apply to areas identified as Nooksack Dace critical habitat

This table presents the existing provincial regulatory mechanisms that apply to areas identified as Nooksack Dace critical habitat.
Act or Regulation Application to critical habitat
Fish Protection Act, section 9 Allows for ministerial orders to temporarily regulate the diversion, rate of diversion, time of diversion, storage, time of storage and use of water from the stream by holders of licences or approvals in relation to the stream, regardless of the terms of their Water License under the Water Act, provided the following conditions are met: (a) water levels are low due to drought; (b) the survival of fish populations is or may be threatened due to low water levels; and (c) due consideration has been given to the needs of agricultural users.
Riparian Areas Regulation The Riparian Areas Regulations establish directives to protect riparian areas from development so that the areas can provide natural features, functions and conditions that support fish life processes.
Controlled Alien Species Regulation made under the Wildlife Act, subsection 6.6 Among other things, prohibits the introduction of aquatic invasive species.
Environmental Management Act, section 6 Among many other things, this Act controls the introduction of waste into the environment. The Agricultural Waste Control Regulation includes a Code of Agricultural Practice for Waste Management, the purpose of which is to describe practices for using, storing and managing agricultural waste that will result in agricultural waste being handled in an environmentally sound manner.
Water Act, section 9

According to subsection 9(2) of the Water Act, a minister, a municipality or any other person may only make “changes in or about a stream” in accordance with an “approval” under subsection 9(1), or in accordance with the Regulations, a licence or an order under the Act.

The Regulations allows certain activities to be undertaken when carried out in compliance with the Regulations, rather than under the authority of an approval or licence. Under the Regulations, a number of routine works may be carried out, provided that the general conditions and notification requirements are met. An approval or licence is required in cases involving more complex works and for the short-term use, storage or diversion of water.
Application of the critical habitat Order

The Order, upon coming into force, triggers the prohibition under subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Nooksack Dace. The Order complements the existing federal regulatory framework by formally establishing and clearly communicating the legal protection of critical habitat for the species in question, as required by subsections 58(4) and (5) of SARA.

As summarized in the table above, there is an existing framework of federal regulatory mechanisms that offers protection to the Nooksack Dace and its critical habitat.

Based upon the best evidence currently available, it is anticipated that the application of the existing federal regulatory mechanisms is sufficient to manage the application of the prohibition in subsection 58(1) of SARA without the need for additional compliance and administrative measures on the part of Canadians and Canadian businesses. Fisheries and Oceans Canada anticipates that there are no planned or ongoing activities within the critical habitat of the Nooksack Dace that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of existing federal regulatory mechanisms to avoid destruction of any part of critical habitat. Should any future activities result in the destruction of any part of the critical habitat of the Nooksack Dace, they would be subject to the non-discretionary requirements of SARA triggered through the making of this Order.

For added specificity, it should be noted that Fisheries Act authorizations are already required for applicants who seek to carry out any work, undertaking or activity that results in permanent alteration to, or destruction of, the critical habitat of the Nooksack Dace. Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the Department of Fisheries and Oceans for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister of Fisheries and Oceans is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA -- that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or affecting the species is incidental to the carrying out of the activity. Furthermore, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. With respect to the latter, this means that prior to issuing SARA-compliant Fisheries Act authorizations, the Minister of Fisheries and Oceans must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted, that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals, and that the activity will not jeopardize the survival or recovery of the species.

The future impact of the Order was assessed by reviewing the scale and types of past “projects” that were assessed by Fisheries and Oceans Canada and that occurred within or adjacent to Nooksack Dace critical habitat from 2007 to November 2015. The scan identified 19 projects that were reviewed by Fisheries and Oceans Canada ranging in scale from large, one-time/infrequent projects to mid-scale, irregular infrastructure maintenance projects, to small scale, high frequency activities. They included

The majority of these projects were assessed by DFO as presenting a low to a medium risk to fish and fish habitat. Since the Nooksack Dace critical habitat was already identified in 2008, when most of these projects were undertaken, it is reasonable to assume the recommendations for mitigation under existing legislation took into account the presence of a SARA listed species’ critical habitat. Therefore, even in the absence of an order, the presence of a SARA listed species in a project area would likely have resulted in additional scrutiny and management with respect to requirements for mitigating impacts on the species and its habitat. Hence, it is reasonable to assume the current regulatory framework would be sufficient for the protection of critical habitat from low to medium risk projects in the future.

During the 2007 to November 2015 analysis period, 8 out of 19 projects were assessed as high risk. Two of these high risk projects required paragraph 35(2)(b) Fisheries Act authorizations in order to proceed. These included a large highway development project (Port Mann Bridge expansion with multiple components) and a municipal infrastructure project (replacement of sanitary sewer). The authorizations contained, among other things, conditions that mitigated the impacts of each of the projects so that survival or recovery of the species would not be jeopardized.

Of the remaining six projects identified as high risk, two projects have been categorized as abandoned, and the other four were reclassified as low to medium risk after best management practices were applied.

The remaining projects that were reviewed over this time period were considered low to medium risk to fish and fish habitat at the time of the assessment. These types of projects will continue to be managed under the existing legislative framework after the entry into force of the Order. Based on the best available information, Fisheries and Oceans Canada has also determined that there are no future projects anticipated within the critical habitat that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of the existing federal regulatory mechanisms highlighted in Table 1 to avoid either destruction of any part of critical habitat, or jeopardy to survival, or recovery of the species.

Cost-benefit analysis

It is anticipated that there will be no incremental impacts on stakeholders or Aboriginal groups as a result of the Order. Therefore, considering the existing federal regulatory mechanisms, the Order is anticipated to have minimal impact, resulting in negligible incremental costs. The federal government may undertake some additional activities associated with compliance promotion and enforcement. As a result, there may be some incremental costs for the federal government; however, these are expected to be low and would be absorbed through existing funding allocations.

As discussed above, given the mechanisms already in place, any benefits resulting from this Order are anticipated to be negligible.

“One-for-One” Rule

Given that the information requirements of the existing regulatory framework are sufficient to promote compliance with the prohibition against destruction of critical habitat triggered by this Order, with no incremental administrative burden on businesses anticipated, the “One-for-One” Rule would not apply to this Order. Notwithstanding this analysis, this Order must be made to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the Nooksack Dace’s critical habitat.

Small business lens

At present, compliance for small business is being met through the administration of the existing federal regulatory framework. In addition to federal approvals under other acts, Fisheries Act authorizations and SARA permits are already required for applicants who seek specific permission to contravene prohibitions under subsection 32(1) of SARA and subsection 35(1) of the Fisheries Act.

Fisheries and Oceans Canada provides a single window to proponents to apply for a SARA permit under section 73, or for an authorization under paragraph 35(2)(b) of the Fisheries Act, as provided for by section 74 of SARA. Therefore, the small business lens would not apply to this Order, as there would be no incremental costs on small business.

Implementation, enforcement and service standards

Fisheries and Oceans Canada continues to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the killing, harming and harassing of individuals of the Nooksack Dace. These standards and specifications are aligned with those that will be required once the Order comes into force. Fisheries and Oceans Canada also advises stakeholders on compliance specifications for other acts and regulations administered by the Department that apply to the species and its habitat.

The existing federal regulatory framework applies to the critical habitat of the Nooksack Dace. The Order will provide a further deterrent in addition to the existing regulatory mechanisms and specifically safeguard the critical habitat of the Nooksack Dace through penalties and fines under the Species at Risk Act, including the pursuit of offences punishable on summary conviction or indictable offences.

A contravention of subsection 58(1) of SARA has the same maximum fines as for a contravention of subsection 32(1) of SARA. Under the penalty provisions of SARA, a corporation that is not a non-profit corporation, found guilty of an offence punishable on summary conviction, 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. A corporation that is not a non-profit corporation, found guilty of an indictable offence, is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions under subsections 35(1) or 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsections 32(1), or 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Nooksack Dace should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.

For more details on applying for a SARA permit under section 73, or for SARA-compliant Fisheries Act authorizations contemplated by section 74 of SARA, please visit http://www.dfo-mpo.gc.ca/species-especes/ permits-permis/permits-eng.htm or contact the Fisheries Protection Program at http://www.dfo-mpo.gc.ca/pnw-ppe/contact-eng.html.

Contact

Julie Stewart
Director
Integrated Species at Risk
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-993-8607
Email: SARA_LEP@dfo-mpo.gc.ca

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