Critical Habitat of the Silver Shiner (Notropis photogenis) Order: SOR/2023-39

Canada Gazette, Part II, Volume 157, Number 7

Registration
SOR/2023-39 March 9, 2023

SPECIES AT RISK ACT

Whereas the Silver Shiner (Notropis photogenis) is a wildlife species that is listed as a threatened species in Part 3 of Schedule 1 to the Species at Risk Act footnote a;

Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;

Whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2)footnote b of that Act;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect a reserve or other lands that are set apart for the use and benefit of a band and, under subsection 58(7)footnote c of that Act, has consulted with the Minister of Indigenous Services and the band in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans makes the annexed Critical Habitat of the Silver Shiner (Notropis photogenis) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a.

Ottawa, March 6, 2023

Joyce Murray
Minister of Fisheries and Oceans

Critical Habitat of the Silver Shiner (Notropis photogenis) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Silver Shiner (Notropis photogenis), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.

Coming into force

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Silver Shiner (Notropis photogenis) is a relatively large freshwater minnow whose Canadian range is limited to southwestern Ontario. It is threatened by many anthropogenic stressors, including water quality and habitat degradation resulting from agricultural land uses and urban development, as well as dams and impoundments.

In August 2019, the Silver Shiner was listed as a threatened speciesfootnote 1 under the Species at Risk Act footnote a (SARA). The critical habitatfootnote 2 of the Silver Shiner was identified in the Recovery Strategy and Action Plan for the Silver Shiner (Notropis photogenis) in Canada (the Recovery Strategy), which was posted on the Species at Risk Public Registry (the Public Registry) on September 13, 2022.

As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the threatened Silver Shiner is legally protected by (a) provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11; or (b) the application of subsection 58(1) of SARA.

Background

The Government of Canada is committed to conserving biodiversity both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the Convention on Biological Diversity in 1992. As a party to this Convention, Canada developed the Canadian Biodiversity Strategy and federal legislation to protect species at risk. SARA received royal assent in 2002. Its purpose is to

Habitat protection under SARA

Once a wildlife species has been listed as endangered, threatened, or extirpated in Schedule 1 of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister and posted on the Public Registry. Based on the best available information and to the extent possible, the recovery strategy or action plan must include an identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival).

Under SARA, critical habitat must be legally protected within 180 days after the final recovery strategy or action plan identifying that critical habitat is posted on the Public Registry. Critical habitat that is not located in a place referred to in subsection 58(2) of SARAfootnote 3 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament (this includes agreements under section 11 of SARA).

Silver Shiner

The Silver Shiner is a relatively large minnow that can grow to about 14 cm long. It has a silvery body with some blue or green iridescence, a dark stripe down the centre of the back and a long snout marked with two black crescents between the nostrils. The Canadian range of Silver Shiner appears to be restricted to tributaries of lakes Erie, St. Clair, Ontario, and Huron. Within the Lake Erie drainage, the species has been found in the Grand River and some of its tributaries (Conestogo, Nith, and Speed rivers; Laurel, Schneider, Silver, and Whitemans creeks). In the Lake St. Clair drainage, it has been found in the Thames River and tributaries (Avon, North Thames, Middle Thames, and South Thames rivers; Black, Dingman, Fish, Medway, Oxbow, Stoney and Trout creeks; Fanshawe Lake). In the Lake Ontario drainage, the species has been found in Bronte and Sixteen Mile creeks. In the Lake Huron drainage, it is found in the Saugeen and the North Saugeen rivers. Adult Silver Shiner generally prefer medium to large streams and rivers with moderate to fast flows, and are associated with areas of alternating pools and riffles (shallower faster moving sections of a stream or river) or more turbulent regions below dams. Riparianfootnote 4 vegetation may be an important indirect habitat feature as the Silver Shiner is known to feed on terrestrial insects.

In Canada, the Silver Shiner is threatened by many anthropogenic stressors. The main threats facing the species include

In May 2011, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Silver Shiner and classified it as threatened. In August 2019, the Silver Shiner was listed as a threatened species on the List of Wildlife Species at Risk (Schedule 1) of SARA.

When a threatened aquatic species listed under Schedule 1 of SARA, the following prohibitions in section 32 and section 33 of SARA automatically apply:

In September 2022, the Recovery Strategy was posted on the Public Registry. The Recovery Strategy identifies the critical habitat necessary to support the survival or recovery of the Silver Shiner.

Objective

The objective of this regulatory initiative is to trigger, through the making of a critical habitat order, the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Silver Shiner that is identified in the Recovery Strategy for the species.

Description

Critical habitat for the Silver Shiner has been identified as run, riffle or pool areasfootnote 5 in streams with slow to moderate flow for juveniles and moderate to fast flow for adults within the Thames River (including the Avon, Middle Thames, North Thames and South Thames rivers, and the Black, Dingman, Fish, Medway, Oxbow, Stoney, Trout, Whirl and Wye creeks), the Grand River (including the Conestogo and Nith rivers), the Bronte Creek, and the Sixteen Mile Creek (including the East Sixteen Mile Creek). The Recovery Strategy provides maps of the areas within which critical habitat is found. Within the delineated areas, only those portions possessing features necessary to support defined life stage functions are critical habitat.

Within identified stream segments, critical habitat includes the entire bankfull channel width,footnote 6 the meander belt widthfootnote 7 and the riparian vegetation within it, and associated riparian vegetation extending 30 m out from the meander belt width. The exception to this is for watercourses that are classed as municipal drains (under Ontario’s Drainage Act) and that have had previous channel realignment work conducted. In this case, critical habitat includes the entire bankfull channel width as well as 30 m of riparian vegetation on each side of the bankfull channel (i.e. meander belt is not included).

The Critical Habitat of the Silver Shiner (Notropis photogenis) Order (the Order) triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the Silver Shiner critical habitat. It results in the legal protection of the critical habitat identified in the Recovery Strategy.

If new information becomes available to support changing the critical habitat of the Silver Shiner, the Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation). The Order will apply to the revised critical habitat once included in an amended recovery strategy posted on the Public Registry.

The Order affords the Minister an additional tool to ensure that the critical habitat of the Silver Shiner is legally protected. It complements the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act. This subsection prohibits the carrying on of any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat.

Regulatory development

Consultation

Consultation on the critical habitat for Silver Shiner, and the intention to protect the species’ critical habitat through a critical habitat order, occurred during the development of the Recovery Strategy for the species. Fisheries and Ocean Canada (DFO) developed the Recovery Strategy in cooperation with the Ontario Ministry of Natural Resources and Forestry (MNRF; formerly the Ministry of Northern Development, Mines, Natural Resources and Forestry) with support from the Ontario Freshwater Fish Recovery Team and the Ontario Ministry of the Environment, Conservation, and Parks (MECP).

The proposed Recovery Strategy and Action Plan for the Silver Shiner (Notropis photogenis) in Canada (the proposed Recovery Strategy) was posted on the Public Registry for public comment between January 20, 2021, and March 21, 2021. Emails were sent on January 15, 2021, to 85 targeted stakeholder groups to notify them of the upcoming public comment period. These groups included conservation authorities, environmental non-governmental organizations (ENGOs), municipalities, fishing organizations, and agricultural organizations.

Subsequently, on January 20, 2021, additional stakeholder groups (specifically Bruce County, Municipality of Brockton, Municipality of Arran-Elderslie, Saugeen Nature, and Saugeen Valley Conservation Authority) were sent a separate email notifying them of the posting of the proposed Recovery Strategy. The emails sent to these groups also advised that Silver Shiner had recently been found in the Saugeen River (the first confirmed records of the species in the watershed), and that, although the species’ presence in the Saugeen River was described as uncertain in the proposed Recovery Strategy, the intention was to add this new distribution information to the final Recovery Strategy. Further, it was clarified that the Saugeen River would not be identified as potentially containing critical habitat in the final Recovery Strategy, as more information is required before making such a determination.

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

Comments were received from both the Hamilton Naturalists’ Club and Conservation Halton expressing support for the Recovery Strategy and the actions to be taken to protect the Silver Shiner. No responses were received from other non-Indigenous groups, including the groups specifically notified about the recent discovery of Silver Shiner in the Saugeen River, or from the general public.

Modern treaty obligations and Indigenous engagement and consultation

DFO consulted 17 Indigenous groups identified as those potentially having reserve lands or traditional lands near the distribution of the Silver Shiner. Four of these — Chippewas of the Thames First Nation, Munsee-Delaware First Nation, Oneida Nation of the Thames, and Six Nations of the Grand River — have reserve lands that are bordered by rivers (the Thames and the Grand) containing critical habitat.

The 17 Indigenous groups were first notified of the opportunity to consult on the draft Recovery Strategy on August 21, 2020, via a letter that was sent by email. They were subsequently provided notice on January 20, 2021, that the proposed Recovery Strategy was posted on the Public Registry. A reminder email was circulated on March 17, 2021, in advance of the closing of the comment period.

For the Saugeen Ojibway Nation (Saugeen First Nation and Chippewas of Nawash), the January 20, 2021 communication additionally advised that new information had been made available to confirm the presence of Silver Shiner in the Saugeen River watershed, which would be included in the final Recovery Strategy but would not result in critical habitat identification in the Saugeen River.

Responses were received from two Indigenous groups.

The Chippewas of the Thames First Nation, one of the First Nations whose reserve land is bordered by a river containing critical habitat, requested a meeting following receipt of the initial August 21, 2020 letter, as they had some questions that they wanted DFO to address. Their questions were primarily procedural in nature (e.g. critical habitat order enforcement, monitoring, and activities allowed). They were addressed via a virtual meeting between DFO and the First Nation held on November 12, 2020. No additional follow-up was required, and no further questions were received from the Chippewas of the Thames First Nation during the public comment period for the proposed Recovery Strategy.

A response was received from Mississaugas of the Credit First Nation by email on March 17, 2021. Their response stated that they had no comments at that time.

In accordance with subsection 58(7) of SARA, the Minister of Indigenous Services was additionally consulted because the Order could affect lands set apart for the use and benefit of a band under the Indian Act (i.e. the four First Nation reserves bordered by rivers containing critical habitat). On February 22, 2021, a letter was sent to the Director General of the Lands and Environment Management Branch at Indigenous Services Canada notifying them of DFO’s intention to make the Order and providing them with an opportunity to comment. No comments were received.

Under SARA subsection 58(8), consultation with a wildlife management board was not required as there are no areas in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species that will be affected by the Order.

An assessment of modern treaty implications was completed. The assessment concluded that implementation of the Order will likely not have an impact on the rights, interests, and/or self-government provisions of treaty partners. There is no modern treaty that covers the species’ range.

Instrument choice

Under SARA, all of a species’ critical habitat must be legally protected either by the application of the prohibition against the destruction of any part of the critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11. Courts have concluded that other federal laws must provide an equal level of legal protection for critical habitat as would be engaged through subsections 58(1) and (4), failing which, the Minister must make a critical habitat order, triggering the application of subsection 58(1) of SARA. They have also concluded that subsection 35(1) of the Fisheries Act does not legally protect critical habitat, because subsection 35(2) grants the Minister complete discretion to authorize the destruction of fish habitat. As a result, in most cases, the making of an order by the Minister may be necessary to legally protect critical habitat of an aquatic species at risk.

Regulatory analysis

Benefits and costs

The baseline for this analysis is the management of fish habitat subsequent to the identification of critical habitat in the Recovery Strategy. As part of the process for identifying critical habitat for the Recovery Strategy, it was determined that the entire bankfull channel width, the meander belt width and the riparian vegetation within it, and associated riparian vegetation extending 30 m out from the meander belt width was habitat necessary to support the life processes of the Silver Shiner. Prior to this, the exact extent of riparian habitat necessary for the survival of this fish species may not have been formalized. As such, this identification of critical habitat may have resulted in some new areas being considered fish habitat, and thus receiving protection pursuant to subsection 35(1) of the Fisheries Act. Subsection 35(1) of the Fisheries Act prohibits the carrying out of any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat, unless the requirements for an exception described in subsection 35(2) can be satisfied. This protection could result in additional administrative or operational requirements for proponents and incremental impacts to industry. Protection of new areas of fish habitat under the Fisheries Act may also provide incremental benefits to the species, its habitat and the ecosystem, which in turn may provide incremental benefits to Canadians. These potential impacts are attributable to the Fisheries Act rather than this Order and form part of the baseline for analysis.

Therefore, considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. The federal government may incur minimal costs as it may undertake additional activities associated with compliance promotion and enforcement. These costs would be absorbed through existing funding allocations. No additional incremental costs to Canadians or Canadian businesses are anticipated. Should a project proponent require a permit to affect the critical habitat of the Silver Shiner, the permit application process is the same regardless of whether a critical habitat order is in place (refer to the “Implementation” section).

The compliance promotion and enforcement activities to be undertaken by DFO to fulfill requirements under SARA, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups). These behavioural changes could also result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes resulting from these outreach activities.

Small business lens

The small business lens was applied and it was determined that the Order does not impose any incremental regulatory costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to the Order, as no additional administrative burden is anticipated to be imposed on businesses. The Order will be implemented under existing processes.

Regulatory cooperation and alignment

SARA is a key tool for the conservation and protection of Canada’s biological diversity and fulfills a commitment made under the Convention on Biological Diversity. Therefore, the Order will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

The Silver Shiner is also protected under Ontario’s Endangered Species Act, 2007. Other provincial legislation that provides habitat protection includes, but may not be limited to, considerations under section 3 of Ontario’s Planning Act, section 2.1.7 of the Provincial Policy Statement (2020) under the Planning Act, as well as Ontario’s Lakes and Rivers Improvement Act.

There are no international trade agreements that will be impacted as a result of this Order.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan to identify the potential for important environmental effects was conducted. It concluded that a strategic environmental assessment was not required for the Order, because the Order is not expected to have an important environmental effect on its own, considering the existing federal regulatory mechanisms in place.

However, it is expected that, when all planned recovery activities and legal protections are considered together, these will have a positive environmental impact and will contribute to the achievement of the Federal Sustainable Development Strategy goal of healthy wildlife populations.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this Order.

Implementation, compliance and enforcement, and service standards

Implementation

Threats to critical habitat are currently managed and will continue to be managed through existing measures under federal legislation, such as protections under the Fisheries Act. DFO provides a single window for proponents to apply for authorizations under the Fisheries Act or permits under SARA when they propose conducting works, undertakings or activities in or near water.

To lawfully conduct an activity resulting in the destruction of any part of the critical habitat of the Silver Shiner, the proponent must apply for and obtain an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that would have the same effect as a permit issued under subsection 73(1) of SARA.

Under section 73 of SARA, the Minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals, provided that the requirements of subsections 73(2) to 73(6.1) of SARA are met. After it is entered into or issued, the Minister must comply with the requirements of subsection 73(7) by reviewing the permit if an emergency order is made with respect to the species.

Provided that the Minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met, an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act can have the same effect as a permit issued under subsection 73(1) of SARA (as provided for by section 74 of SARA). After it is issued, the Minister must comply with the requirements of paragraph subsection 73(7).

A SARA permit or Fisheries Act authorization that acts as a SARA permit, if approved, would contain the terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species, or providing for its recovery. The permit application process is the same whether or not there is a critical habitat order in place in the affected area; the requirements of the Fisheries Act and SARA, including critical habitat considerations, are already considered by DFO staff during the review of a project. It is therefore not expected that there would be an increased administrative burden for a project proponent as a result of a critical habitat order.

Compliance and enforcement

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000; a non-profit corporation is liable to a fine of not more than $50,000; and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000; a non-profit corporation is liable to a fine of not more than $250,000; and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

Any persons planning on undertaking an activity within the critical habitat of the Silver Shiner should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact DFO. For more information, proponents should consult DFO’s projects near water web page.

Contact

Courtney Trevis
Director
Species at Risk Operations
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca