Vol. 150, No. 10 — May 18, 2016

Registration

SOR/2016-83 May 2, 2016

SPECIES AT RISK ACT

Critical Habitat of the White Sturgeon (Acipenser transmontanus) Upper Fraser River Population Order

Whereas the White Sturgeon (Acipenser transmontanus) Upper Fraser River population 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 White Sturgeon (Acipenser transmontanus) Upper Fraser River Population Order.

Ottawa, April 21, 2016

Hunter Tootoo
Minister of Fisheries and Oceans

Critical Habitat of the White Sturgeon (Acipenser transmontanus) Upper Fraser River Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the White Sturgeon (Acipenser transmontanus) Upper Fraser River population, which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.

Coming into Force

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the orders.)

Issues

In 2003, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed White Sturgeon in Canada as endangered. Although the assessment was conducted for White Sturgeon as one species in Canada, COSEWIC noted the existence of six nationally significant populations (Lower Fraser River, Middle Fraser River, Upper Fraser River, Nechako River, Upper Columbia River and Kootenay River White Sturgeon). 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 White Sturgeon.

In August 2006, on the recommendation of the Minister of the Environment, who consulted the Minister of Fisheries and Oceans and took into account the assessment of COSEWIC in respect of the species, the Governor in Council, after considering the potential impacts of adding the species to the List of Wildlife Species at Risk set out in Schedule 1 of SARA, decided to add four of the nationally significant populations of White Sturgeon to Schedule 1 of SARA: the Upper Fraser River, Nechako River, Upper Columbia River and Kootenay River populations (hereafter referred to collectively as White Sturgeon).

As a result of the addition of the White Sturgeon to Schedule 1 of SARA, the competent minister was required to prepare a recovery strategy for the species. The development of the recovery strategy was led by the Minister of Fisheries and Oceans and the British Columbia Ministry of the Environment who established a National Recovery Team for White Sturgeon in Canada. Its membership comprises a broad range of technical experts from Fisheries and Oceans Canada (DFO), the province of British Columbia, First Nations, and the chairs of basin-specific, multi-stakeholder technical working groups for the Nechako and Upper Fraser Rivers, the Upper Columbia River and the Kootenay River.

The recovery strategy for White Sturgeon (Acipenser transmontanus) in Canada, which was posted on the Species at Risk Public Registry (SAR Public Registry) in March 2014, includes an identification of the species’ critical habitat. (see footnote 1) As described in the species’ recovery strategy, the critical habitat for each listed population of White Sturgeon in Canada is composed of a unique set of features which support its function(s). Generally, this includes a mix of food availability, hydraulic conditions, and important habitat, such as

The geographic extent of the critical habitat identified for each listed population is also described in detail in the recovery strategy, and is summarized as follows:

Nechako River population

There are 13 critical habitat areas identified for the Nechako River population of White Sturgeon, totalling a combined river length of approximately 68.1 kilometres, and a combined lake and river area of approximately 141.6 square kilometres. Critical habitat areas are located in the Nechako, Stuart, Stellako and Nautley Rivers, as well as Fraser, Trembleur and Stuart Lakes. A portion of the critical habitat is found within the boundaries of the Nechako River Migratory Bird Sanctuary administered by Environment Canada.

Upper Fraser River population

There are nine critical habitat areas identified for the Upper Fraser River population of White Sturgeon, totalling a combined river length of approximately 71.9 kilometres, and a combined river area of approximately 19.7 square kilometres. Critical habitat areas are located in the Fraser, Nechako, Bowron, Salmon, McGregor and Willow Rivers.

Upper Columbia River population

There are 12 critical habitat areas identified for the Upper Columbia River population of White Sturgeon, totalling a combined river length of approximately 30.7 kilometres, and a combined lake and river area of approximately 42 square kilometres. Critical habitat areas are located in the Columbia and Kootenay Rivers, as well as Arrow Lakes.

Kootenay River population

There are three critical habitat areas identified for the Kootenay River population of White Sturgeon, totalling a combined river length of approximately 16.2 kilometres, and a combined lake and river area of approximately 18.6 square kilometres. Critical habitat areas are located in the Kootenay River and Kootenay Lake.

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 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, the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Upper Fraser River Population Order, the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Nechako River Population Order, the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Upper Columbia River Population Order, and the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Kootenay River Population Order (hereafter referred to collectively as the Orders) are intended to satisfy the obligation to legally protect the critical habitat of White Sturgeon by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat. The Orders do not apply to critical habitat located within the boundaries of the Nechako River Migratory Bird Sanctuary administered by Environment Canada, which will be addressed through a separate Canada Gazette description as required by subsection 58(2) of SARA.

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, SARA 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. Thus 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 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

These Orders contribute to and align with these broader Biodiversity Outcomes Framework goals. The Orders legally protect the critical habitat of the White Sturgeon by triggering the prohibition against the destruction of any part of its critical habitat.

The “endangered” SARA status of the White Sturgeon was the result of an assessment undertaken by COSEWIC, and was based on various lines of evidence that can be used to infer that population abundance has declined in many parts of the Canadian range, particularly in the Nechako, Columbia and Kootenay Rivers. The recovery goal for the White Sturgeon is to ensure that each of the populations are sustainable throughout their natural range and are self-sustaining through natural reproduction, and to increase or restore opportunities for beneficial use, if and when feasible. A series of population and distribution objectives and general activities have been identified in the recovery strategy, including specific recovery measures, research and ongoing monitoring. A number of population and distribution objectives are identified in the recovery strategy:

The objectives and timelines will be revisited as new information is collected, and possible changes to priorities will be evaluated.

To the extent possible, critical habitat identification was based on habitat associations developed from detailed empirical work. Where detailed studies were lacking or inconclusive, expert opinion and a precautionary approach was used, as described in SARA and DFO guidance documents cited in the recovery strategy. The precautionary approach recognizes that, where there is a risk of serious or irreversible harm, cost-effective measures to prevent the reduction or loss of a species should not be postponed for a lack of full scientific certainty.  This approach allowed critical habitat to be identified for less-well studied populations such as the Upper Fraser River and for early life stages in areas currently afflicted by recruitment failure.

Description

The Orders are made to satisfy the obligation to ensure that the White Sturgeon critical habitat is legally protected. With these Orders, the White Sturgeon benefits from the prohibition in subsection 58(1) of SARA against the destruction of any part of its critical habitat. The prohibition applies to anyone undertaking activities in and around the White Sturgeon critical habitat that would result in the destruction of any part of it. The Orders serve to

As a result of the Orders, the prohibition in subsection 58(1) of SARA applies to any ongoing or future human activities that could result in the destruction of any part of the White Sturgeon critical habitat [excluding those areas of critical habitat described under subsection 58(2) which are protected further to the publication of the critical habitat description and the subsequent application of the prohibition in subsection 58(1) of SARA]. This further supports management of human activities in the critical habitat and allows 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 White Sturgeon include direct habitat alienation and loss where sturgeon can no longer access previously used habitats; river (flow) regulation; harvest of prey/food; introduction of invasive non-native fish species; direct and indirect harvest; release of pollutants; and floodplain development. Examples of activities likely to destroy critical habitat of these species include (see footnote 2)

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 is prohibited by the making of the Orders. 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 Orders come into force on the day they are registered and trigger the prohibition in subsection 58(1) of SARA, which confers legal protection to the White Sturgeon critical habitat. This will facilitate efforts to support the survival and recovery of the species.

Consultation

In 2005, prior to the White Sturgeon being listed on Schedule 1 of SARA, DFO and the British Columbia Ministry of the Environment established the National Recovery Team for White Sturgeon in Canada. Its membership comprises technical experts from DFO, the province of British Columbia, First Nations, and the chairs of basin-specific, multi-stakeholder technical working groups for the Nechako and Upper Fraser Rivers, the Upper Columbia River and the Kootenay River. Membership for the technical working groups varies and may include technical experts from DFO, the province of British Columbia, First Nations and U.S. Tribes, U.S. Government, hydro-electric operators, contractors, and the Freshwater Fisheries Society of British Columbia. In February 2006, the National Recovery Team was tasked with drafting the White Sturgeon recovery strategy, which was posted on the Species at Risk Public Registry in March 2014.

The proposed recovery strategy underscored the fact that the critical habitat of the four populations of White Sturgeon identified in the document would be legally protected largely through the making of the Orders, and, in the case of part of the critical habitat of one population, through a Canada Gazette description, as required under subsection 58(2). DFO engaged stakeholders and interested parties to discuss the Orders and the Canada Gazette description and to seek their input on their potential implications. The proposed recovery strategy was later posted on the SAR Public Registry on December 16, 2013, for 60 days, to provide interested parties with sufficient time to consider the potential impacts of such actions, and to provide their feedback to DFO.

Furthermore, in anticipation of making the Orders, direct consultation activities were undertaken in 2013 and 2014 with those that may be affected by this action, including First Nations, Tribal Councils and other Aboriginal organizations, the province of British Columbia, federal agencies, and hydro-electric utilities. Specifically, the following took place:

Approximately 20 representatives from the hydro-electric facilities participated in various phases of the consultation process and provided input to DFO. A total of 32 representatives of 12 First Nations, 3 Tribal Councils and 4 other Aboriginal organizations attended and participated in DFO’s presentations to First Nations. No written responses to the letters sent to First Nations and Aboriginal Affairs and Northern Development Canada regarding the Orders have been received, but First Nations provided comments during the in-person meetings.

Seven key areas of inquiries were heard during these consultation activities regarding the legal protection of White Sturgeon critical habitat through the Orders. A summary of these questions, and DFO’s responses, is provided below.

Hydro-electric operators

DFO has explained the manner in which the SARA prohibition will be applied and will continue discussions with the hydro-electric operators on operations, potential impacts to critical habitat and the mitigation measures necessary, if any, to reduce or avoid impacts.

First Nations

DFO has explained the manner in which the SARA prohibition will be applied. Discussions are ongoing with hydro-electric operators on operations, impacts (ongoing or potential) to White Sturgeon (both individuals and critical habitat) and ways to achieve regulatory compliance.

DFO reviewed information previously provided in its written evidence submission to the Enbridge Northern Gateway Project Joint Review Panel (the JRP). The JRP did not note any likely impacts to White Sturgeon from the pipeline. DFO cannot comment on the JRP report beyond the evidence it provided to the JRP. For other pipelines, DFO’s Species at Risk Program provides information to DFO’s Fisheries Protection Program on White Sturgeon presence, the functions, features and attributes of particular habitat likely utilized by White Sturgeon, the geospatial areas bounding critical habitat within which those functions, features and attributes are present, and activities likely to destroy the critical habitat if they are not sufficiently mitigated.

The recovery strategy identifies overfishing of prey species of the Nechako River population of White Sturgeon as an “Activity Likely to Destroy Critical Habitat.” However, there is currently no indication that overfishing of prey species is a problem in relation to White Sturgeon, and DFO will continue to work towards identifying prey availability thresholds. Fishing for food, social and ceremonial purposes could continue as long as it did so in a way that does not compromise the quantity and diversity of prey species for White Sturgeon.

Current White Sturgeon recovery efforts are focused on the linkage between habitat restoration and juvenile recruitment (survival to adulthood). As a result, habitat restoration measures are being undertaken as a means of addressing recruitment failure. If it becomes clear that current efforts related to habitat restoration measures are not successful in terms of improved recruitment, the options for alternative approaches and, when necessary, the recovery goals and population and distribution objectives would be reviewed. First Nations should report potential non-compliance using the same mechanism as for habitat violations — the DFO Observe, Record, Report phone line.

There is no automatic trigger for any funding associated with making SARA critical habitat orders, but research aiming to identify additional critical habitat or to refine current critical habitat (set out in the Schedule of Studies in the recovery strategy) would receive priority consideration as part of existing commitments. DFO provides significant resources for critical habitat restoration works for Nechako White Sturgeon, which is a high priority species for the region. Funding continues to be potentially available through the Habitat Stewardship Program and the Aboriginal Fund for Species at Risk Program.

The making of the Orders was identified in the proposed recovery strategy and was discussed in direct consultation with stakeholders and partners, including First Nations. The issues identified through this process have been considered in the overarching impact analysis.

Overall, there was general support for the areas identified as critical habitat in the proposed recovery strategy, and the critical habitat orders as proposed in that document. No opposition was raised during the direct consultations noted above regarding the Orders. However, participants raised questions with regards to the implications of critical habitat identification and the Orders for their activities (including hydro-electric operations and salmon fishing), how compliance with the Orders would be achieved and how the Orders would be enforced. Feedback received as part of the 60-day public comment period on the proposed recovery strategy has been incorporated in the final recovery strategy for the species, which was posted on the Species at Risk Public Registry on March 19, 2014.

Rationale

Purpose

Under SARA, critical habitat identified in the recovery strategy must be protected within 180 days after the posting of the final recovery strategy 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 subsection 58(4) and (5) of SARA. Therefore, the four Orders for the protection of critical habitat of the White Sturgeon — the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Upper Fraser River Population Order, the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Nechako River Population Order, the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Upper Columbia River Population Order and the Critical Habitat of the White Sturgeon (Acipenser transmontanus) Kootenay River Population Order — are 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 White Sturgeon populations are currently already subject to other federal and provincial regulatory mechanisms.

Table 1. Examples of key existing federal regulatory mechanisms that apply to the critical habitat of White Sturgeon

Application to critical habitat

Species at Risk Act, subsection 32(1)

Prohibits, among other things, the killing, harming or harassing of individuals of White Sturgeon. 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.

DFO currently provides mechanisms for ensuring that authorizations issued under other federal legislation applicable to the critical habitat of White Sturgeon have the same effect as permits issued under SARA.

Additional detail is provided in the “Application” 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 White Sturgeon 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.

To date, no amendments have been made to such documents with respect to activities in the critical habitat of the White Sturgeon and none are anticipated in the foreseeable future.

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 White Sturgeon 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 White Sturgeon. DFO 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 White Sturgeon was identified in a final recovery strategy published on March 19, 2014, all projects affecting critical habitat are already subject to this provision.

Fisheries Act, subsection 7(1)

The Minister may, in his/her absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

As overfishing of prey species is identified in the recovery strategy as an activity likely to destroy critical habitat, this section could apply in the issuance of fishing licences for species such as salmon, a prey species of White Sturgeon.

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 White Sturgeon.

Additional detail is provided in the “Application” 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 White Sturgeon 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 White Sturgeon 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 White Sturgeon 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.

National Energy Board Act

The National Energy Board (NEB) regulates, among other things, the construction and operation of interprovincial and international oil and gas pipelines, international power lines and designated interprovincial power lines. The NEB’s environmental responsibility includes ensuring environmental protection during the planning, construction, operation and abandonment of energy projects within its jurisdiction.

As a “responsible authority” under the Canadian Environmental Assessment Act, 2012, the NEB ensures environmental assessments are conducted for projects under its jurisdiction, according to standards prescribed by the legislation. The NEB contacts DFO if there is the potential for impacts to a SARA listed aquatic species.  When appropriate, DFO will review and, if possible, issue permits under SARA, should the project be approved by the NEB.

Complementary provincial regulatory mechanisms also promote the survival and recovery of White Sturgeon and apply to areas identified as White Sturgeon critical habitat.

Table 2. Existing provincial regulatory mechanisms that apply to White Sturgeon critical habitat

Water Act (British Columbia) 

In British Columbia, ownership of water and most streambeds is vested in the Crown and the main provincial statute regulating water resources is the Water Act. 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.

According to the Province of British Columbia, the Water Regulation (the Regulation) ensures that water quality, fish and wildlife habitat and the rights of licensed water users are not compromised.

The Regulation allows certain activities to be undertaken when carried out in compliance with the Regulation, rather than under the authority of an approval or licence. Under the Regulation, 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. Some activities, such as the construction of a dam, require a licence.

Fish Protection Act (British Columbia)

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.
Application of the critical habitat orders

The Orders trigger the prohibition under subsection 58(1) of SARA against the destruction of any part of the identified White Sturgeon critical habitat. The Orders complement 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 tables above, there is an existing framework of federal and provincial regulatory mechanisms that offers protection to the populations of White Sturgeon and their critical habitat.

Based upon the best evidence currently available, it is anticipated that the application of the existing regulatory mechanisms is sufficient to manage the application of the prohibition in subsection 58(1) without the need for additional compliance and administrative measures. DFO anticipates that there are no planned or ongoing activities within the critical habitat of the White Sturgeon that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of existing federal and provincial legislative or regulatory mechanisms to avoid destruction of any part of critical habitat. That being said, should any future activities result in the destruction of any part of the critical habitat of White Sturgeon, they would be subject to the stringent requirements of SARA triggered through the making of these Orders.

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 White Sturgeon. DFO 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 DFO 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 or 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 these Orders were assessed by reviewing the scale and types of past “projects” that were assessed by DFO and that occurred within or adjacent the White Sturgeon’s critical habitat from 2010 to November 2015.

In-stream works and land development projects that occurred within or adjacent to the critical habitat of the four listed White Sturgeon populations between 2010 and 2013 were identified to determine the types, frequency and scale of projects that have occurred in the past and could occur in the future. About one-third of the projects included activities that could result in destruction of parts of critical habitat if avoidance or mitigation measures were not implemented (e.g. shoreline stabilization, log jams, pipeline repairs and crossings, bridge works, water withdrawal and dredging). A subsequent analysis for 2014 and 2015 identified projects within or adjacent to critical habitat that pertained to in-steam works and land development (e.g. shoreline stabilization and protection, highway upgrade, bridge maintenance, suspension bridge, lakeside developments), many of which also included activities that could result in destruction of parts of critical habitat if avoidance or mitigation measures were not implemented. From these analyses, it was determined that, if these types of projects were to be proposed in the future, the application of available standard mitigation measures designed to avoid serious harm to fish would make it unlikely that there would be destruction of any part of the species’ critical habitat.

Several hydro-electric facilities possess Fisheries Act authorizations issued prior to the period of the retrospective analysis and under the former Fisheries Act for the harmful alteration, disruption or destruction of fish habitat. (see footnote 3) At the time of issuance, these authorizations were issued based on the best available information, and do not include conditions specific to SARA or White Sturgeon. Conditions of these authorizations relate to flow, mortality of fish, and impacts associated with the physical presence of the structures themselves. If current mitigation efforts to prevent harm to individual White Sturgeon are demonstrated to be insufficient for the purposes of subsection 32(1) of SARA, future changes would be incorporated into existing and/or future SARA-compliant regulatory mechanisms, namely via 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.

Further, there remains some uncertainty as to whether critical habitat destruction is currently occurring or might occur for any of the White Sturgeon populations in relation to flow regulation or flow diversion associated with dams and hydro-electric developments and/or facilities. If research determines that future changes are required to ensure compliance with the prohibition against the destruction of any part of the critical habitat, such changes would also be incorporated into existing and/or future SARA-compliant regulatory mechanisms, i.e. 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.

Over the short term, no changes are expected to be required under existing Fisheries Act authorizations to achieve compliance with the prohibition against the destruction of any part of the critical habitat.

Consequently, based on the best available information, DFO has also determined that, in the short term, 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 above to avoid either destruction of any part of the critical habitat or jeopardy to survival or recovery of the species.

Cost-benefit analysis

While it is anticipated that the application of existing federal and provincial regulatory mechanisms would result in minimal incremental impacts on most stakeholders or Aboriginal groups as a result of the Orders, there is some uncertainty regarding long-term potential impacts on hydro-electric facilities. In the short term, the Orders are 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. Stakeholders may undertake incremental research to assess the potential for activities to impact the critical habitat, beyond impacts to individuals.

As discussed above, given the mechanisms already in place, any benefits resulting from these Orders are anticipated to be negligible in the short term.

“One-for-One” Rule

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

Small business lens

At present, compliance for small business is being met through the administration of the existing federal regulatory mechanisms. 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.

DFO offers 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 does not apply to these Orders, as there are no incremental costs to small business.

Implementation, enforcement and service standards

DFO 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 White Sturgeon. These standards and specifications are aligned with those that are required upon the entry into force of the Orders. DFO 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 mechanisms apply to the critical habitat of the White Sturgeon. The Orders provide an additional deterrent to the existing regulatory mechanisms and specifically safeguard the critical habitat of the mechanisms through penalties and fines under SARA, 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 subsection 32(1), section 33, or subsection 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the White Sturgeon 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
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca