Critical Habitat of the Striped Bass (Morone saxatilis) St. Lawrence River Population Order: SOR/2022-2

Canada Gazette, Part II, Volume 156, Number 2

Registration
SOR/2022-2 January 10, 2022

SPECIES AT RISK ACT

Whereas the Striped Bass (Morone saxatilis) St. Lawrence 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 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 a portion of the critical habitat of that species is in a place referred to in subsection 58(2) footnote b of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Striped Bass (Morone saxatilis) St. Lawrence River Population Order.

Ottawa, January 6, 2022

Joyce Catherine Murray
Minister of Fisheries and Oceans

Critical Habitat of the Striped Bass (Morone saxatilis) St. Lawrence River Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Striped Bass (Morone saxatilis) St. Lawrence River population – which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry – other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act, more specifically, in Cap Tourmente National Wildlife Area as described in Part III of Schedule I to the Wildlife Area Regulations, and in Cap-Saint-Ignace Bird Sanctuary, L’Islet Bird Sanctuary, Montmagny Bird Sanctuary, Saint-Vallier Bird Sanctuary and Trois-Saumons Bird Sanctuary as described in Part V of the schedule to the Migratory Bird Sanctuary Regulations.

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 Striped Bass, St. Lawrence River population, footnote 1 is one of five native populations of Striped Bass in Canada.

In August 2019, the Striped Bass, St. Lawrence River population (hereafter referred to as Striped Bass) was listed as an endangered species footnote 2 under the Species at Risk Actfootnote a (SARA). The critical habitat footnote 3 of the Striped Bass was identified in the Recovery Strategy and Action Plan for the Striped Bass (Morone saxatilis), St. Lawrence River population, in Canada (the Recovery Strategy-Action Plan), which was posted on the Species at Risk Public Registry (the Public Registry) on July 13, 2021.

As competent minister under SARA, for any area of critical habitat not described in subsection 58(2) of SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the endangered Striped Bass is legally protected by provisions in, or measures under, SARA or any other Act of Parliament. This includes agreements under section 11 of SARA, or by the application of subsection 58(1).

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

  • prevent wildlife species from being extirpated or becoming extinct;
  • provide for the recovery of wildlife species that are extirpated, endangered, or threatened as a result of human activity; and
  • manage species of special concern to prevent them from becoming endangered or threatened.

Habitat protection under SARA

Once a wildlife species has been listed as endangered, threatened, or extirpated in Schedule 1 of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and posted on the Public Registry. Based on the best available information, 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, the 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. A critical habitat that is not located in a place referred to in subsection 58(2) of SARA footnote 4 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament (this includes agreements under section 11 of SARA).

Striped Bass, St. Lawrence River population

Striped Bass is an anadromous species that spawns in fresh water and develops to maturity at sea. This fish is associated with estuaries and coastal habitats in the American Northeast. Spawning, incubation and initial development of fry occur in fresh or slightly brackish waters. From the juvenile stage onward, the Striped Bass is more tolerant of changes in environmental conditions. It can meet its food needs by travelling through estuarine and coastal areas. The historical population of Striped Bass in the St. Lawrence River disappeared in the 1960s due to overfishing and the destruction of its habitat. The Striped Bass was reintroduced to the St. Lawrence River in 2002 under a reintroduction program involving the hatchery breeding of individuals collected in the Miramichi River. The reintroduced population reproduces naturally and there has been some increase in its abundance and distribution.

Threats to the species include

  • infrastructure development;
  • St. Lawrence Seaway maintenance;
  • wharf marinas and access channels maintenance;
  • local modification of the riparian environment;
  • ship wave action;
  • temporary or permanent barrier creation;
  • aquatic invasive species;
  • diseases and parasites;
  • incidental sport and commercial catches;
  • illegal catches;
  • oil leaks and spills during transport;
  • possible leaks during oil and gas exploration and development activities;
  • agricultural pollution (nutrient and sediment load, pesticides); and
  • municipal and industrial effluents.

In November 2012, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Striped Bass and classified it as endangered.

In August 2019, Striped Bass was listed as an endangered species on the List of Wildlife Species at Risk (Schedule 1) of SARA. For an aquatic endangered species listed under Schedule 1 of SARA, the prohibitions in section 32 and section 33 of SARA automatically applied upon listing are as follows:

  • prohibition against killing, harming, harassing, capturing, or taking an individual of such species;
  • prohibition against possessing, collecting, buying, selling, or trading an individual of such species, or any part or derivative of such an individual; and
  • prohibition against damaging or destroying the residence of one or more individuals of such species.

In November 2019, COSEWIC reassessed the Striped Bass and classified it as extinct. In July 2021, the Governor in Council referred this assessment back to COSEWIC for further information or consideration, as the 2019 assessment by COSEWIC did not take into consideration the Striped Bass that were introduced into the St. Lawrence River as part of the 2002 reintroduction program and their progeny.

In July 2021, the Recovery Strategy-Action Plan was posted on the Public Registry. Among other things, the Recovery Strategy-Action Plan identifies the critical habitat necessary to support the recovery of the Striped Bass.

For areas of the identified critical habitat that are administered by Environment and Climate Change Canada (ECCC) [Cap Tourmente National Wildlife Area, and the Bird Sanctuaries at Saint-Vallier, Montmagny, Cap-Saint-Ignace, L’Islet, and Trois-Saumons], a description of the critical habitat is required footnote 5 to trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat located in those areas.

Objective

The objective of this regulatory initiative is to trigger, through the making of the Critical Habitat of the Striped Bass (Morone saxatilis) St. Lawrence River Population Order (the Order), the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Striped Bass that is identified in the Recovery Strategy-Action Plan for the species, excluding the areas that fall under subsection 58(2) of SARA.

Description

Critical habitat for the Striped Bass is identified to the extent possible, using the best available information. It provides the functions and features necessary to support the species’ life-cycle processes and to achieve the species’ population and distribution objectives. The critical habitat includes a series of geographic locations in the fluvial or upper Estuary of the St. Lawrence River where the Striped Bass performs its essential life cycle processes, including (1) adult feeding (May to October; two areas); (2) adult overwintering (November to April; two areas); (3) reproduction (May to June; two areas); and (4) larvae and juvenile growth and feeding (June to November; one area). All identified critical habitat must be protected throughout the entire year to ensure that it can fulfill its critical functions for the species when needed.

The Order triggers the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the Striped Bass critical habitat and results in the legal protection of the critical habitat identified in the Recovery Strategy-Action Plan (excluding the portions in Cap Tourmente National Wildlife Area and the Bird Sanctuaries at Saint-Vallier, Montmagny, Cap-Saint-Ignace, L’Islet, and Trois-Saumons).

If new information becomes available to support changing the critical habitat of the Striped Bass, the Recovery Strategy-Action Plan 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-Action Plan posted on the Public Registry.

The Order affords the Minister an additional tool to ensure that the critical habitat of Striped Bass 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 unauthorized carrying on of any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat.

Regulatory development

Consultation

Under SARA subsection 58(9), consultation with another federal minister was not required as there are no lands under the authority of another federal minister, other than a competent minister, that will be affected by the Order.

To the extent possible, the Recovery Strategy-Action Plan was prepared by Fisheries and Oceans Canada (DFO) in cooperation with the Government of Quebec as per subsections 39(1) and 48(1) of SARA, and with the support of the Striped Bass, St. Lawrence River population, Recovery Team which consisted of representatives from the following stakeholder groups:

  • Federal departments (DFO and Parks Canada Agency [PCA])
  • Government of Quebec: Ministère des Forêts, de la Faune et des Parcs (MFFP)
  • Indigenous communities (Huron-Wendat and Abenaki Nations)
  • Sport fishery organization (Fédération québécoise des Chasseurs et Pêcheurs)
  • Non-governmental organizations, e.g. Regroupement des organismes de bassins versants du Québec, and Stratégies Saint-Laurent
  • A commercial fisher
  • An academic expert

This team was responsible for contributing to the development of the draft Recovery Strategy-Action Plan (2017) and was actively involved in drafting the 2019 proposed version and the final Recovery Strategy-Action Plan of 2021.

In 2017, the draft Recovery Strategy-Action Plan, including the critical habitat, was the subject of consultations by affected Indigenous communities (see the following section), PCA, ECCC, the Government of Quebec, and of a review by the pertinent sectors of DFO. During the consultations and review, the draft Recovery Strategy-Action Plan was well received. PCA and ECCC did not provide any comments.

The proposed Recovery Strategy-Action Plan, including critical habitat, was posted on the Public Registry for a 60-day public comment period on July 19, 2019. The consultation on the Recovery Strategy-Action Plan also served as a consultation on critical habitat identification and anticipated protection of critical habitat by a SARA critical habitat order made under subsections 58(4) and 58(5), which would trigger the prohibition in subsection 58(1) against the destruction of critical habitat. Notifications of the public comment period were sent by email to the Recovery Team, and to various organizations in the following sectors: hydroelectric and maritime (6), sport and commercial fishing (5), environment and sustainable development (51), municipal (34) and academia (6), and Indigenous organizations (7).

A large number of comments were received on the proposed Recovery Strategy-Action Plan during the public comment period from stakeholders, the general public, and Indigenous organizations. Three economic development organizations, two consultants from the Quebec Port Authority (which had a proposed port development project in the area that was rejected by the federal government in June 2021) and one sport fishing organization voiced concerns with the Recovery Strategy-Action Plan. It was favourably received by five First Nations and one Indigenous organization (composed of two First Nations), as well as by two environmental organizations. One economic development organization expressed concern about the potential restriction of development in the Côte de Beaupré area without specifically mentioning critical habitat. In cases where the critical habitat that supports reproduction in the Quebec City area was called into question, the habitat was considered to be poorly defined because of failure to use the best available information and to consider data from the port industry (particularly telemetry data). The feedback received regarding the critical habitat that supports reproduction was considered and addressed in the final Recovery Strategy-Action Plan.

Modern treaty obligations and Indigenous engagement and consultation

Under SARA subsection 58(7), consultations with the Minister of Indigenous Services and a band under the Indian Act were not required as there are no reserves or any other lands that are set apart for the use and benefit of such band that will be affected by the Order.

Under 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 this Order would not have an impact on the rights, interests, and/or self-government provisions of modern treaty partners. There is in fact no modern treaty that covers the species’ range.

Indigenous communities were engaged early at the drafting stage of the species’ Recovery Strategy-Action Plan. Representatives from the Abenaki and Huron-Wendat Nations collaborated in drafting the report through the Striped Bass, St. Lawrence River population, Recovery Team (the Team). Their collaboration on the Team continued throughout the entire document production process, and the last discussions were held in December 2019. These communities have also made an investment in the species’ recovery through the Aboriginal Funds for Species at Risk.

During consultations on the draft Recovery Strategy-Action Plan, letters were sent by email to the Chiefs and Council of the affected First Nations on June 6, 2017. The letter contained an offer to meet. Two Indigenous communities replied at the consultation stage. The Innu Essipit First Nation Council asked for vigilance in the event a harbour development project was carried out in the Beauport area and anticipated impacts on hydrodynamics, a component of the identified critical habitat. The Huron-Wendat First Nation Council mentioned the need to assess and document the importance of Striped Bass fishing activity to the members of the Huron-Wendat Nation and the impact of the Recovery Strategy-Action Plan on the rights, activities and interests of the Huron-Wendat Nation. The Council was critical of the fact that the information from the Port of Quebec (collected under the environmental assessment for a port development project) and from various experts did not appear to agree. The feedback received was considered and is reflected in the final version of the Recovery Strategy-Action Plan.

In September 2017, DFO and MFFP met with representatives from the Huron-Wendat Nation. Experts from MFFP described the survey techniques used to identify critical habitat and provided information on the impact of Striped Bass on other sport fish species. The impact of critical habitat identification for the Huron-Wendat Nation was also discussed.

The proposed Recovery Strategy-Action Plan was posted on the Public Registry on July 19, 2019. The Indigenous communities’ engagement had already been sought at the consultation stage in 2017. In addition, the First Nations of Quebec and Labrador Sustainable Development Institute received specific notification inviting comments on the proposed Recovery Strategy-Action Plan. The Mohawks (Kahnawake), who had not been consulted in 2017, were consulted at this step given that the species had increasingly been observed upstream in the St. Lawrence.

The First Nations (5) and one of their organizations (the Mi’gmaq Maliseet Aboriginal Fisheries Management Association [MMAFMA]) were generally favourably disposed toward the proposal. All of them, including a sixth First Nation that did not have any comments to add, indicated that they wanted to be involved in the species’ recovery. Concerns were raised regarding the possible impact of certain development projects and the need to better document the species and its habitat, including from the perspective of future development and the associated impacts. The Mohawks called on Canada to implement the critical habitat order in a timely manner; the MMAFMA also called for protection of critical habitat. The final Recovery Strategy-Action Plan takes account of the comments made.

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 58(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 aquatic species at risk.

Regulatory analysis

Benefits and costs

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. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some minimal costs as it may undertake some additional activities associated with compliance promotion and enforcement. These costs would be absorbed through existing funding allocations.

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

Environment and Climate Change Canada

Portions of Striped Bass critical habitat occur in the Cap Tourmente National Wildlife Area and the Bird Sanctuaries at Saint-Vallier, Montmagny, Cap-Saint-Ignace, L’Islet, and Trois-Saumons. In accordance with subsection 58(2) of SARA, a description of the critical habitat that occurs in these areas is required. Ninety days following the publication of the description, the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat will apply to the portion of the Striped Bass critical habitat found in these areas. The remainder of the Striped Bass critical habitat is subject to the critical habitat order, which triggers the application of subsection 58(1) for the portion of critical habitat outside of these areas.

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 or permits when they propose conducting works, undertakings or activities in or near water.

In order to lawfully conduct an activity resulting in the destruction of any part of the critical habitat of the Striped Bass, the proponent must apply 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).

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 proactively considered by Departmental 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 Striped Bass 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

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