Science Response 2024/036

Information Components to Inform Section 73 of the Species at Risk Act for Redside Dace (Clinostomus elongatus) and Silver Shiner (Notropis photogenis), and Review of the Proposed Cumulative Effects Assessment Framework - Ontario Highway 413 Project

Context

The Ministry of Transportation Ontario (MTO; the Proponent) is proposing to develop the Highway 413 Project (the Project), a highway located in the northwest Greater Toronto Area. The Project is anticipated to contain approximately 97 stream or watercourse crossings through the Credit River, Humber River, and Sixteen Mile Creek watersheds in the municipalities of Vaughan, Caledon, Brampton, and Halton Hills, Ontario. The Project area is within (but not limited to) traditional lands of the Huron-Wendat, Mississaugas of the Credit First Nation, and Williams Treaties First Nations. Approximately 20 of the proposed watercourse crossings are in, or upstream of, areas that contain Redside Dace (Clinostomus elongatus; Species at Risk Act [SARA] Schedule 1: Endangered) and/or Silver Shiner (Notropis photogenis; SARA Schedule 1: Threatened) based on Fisheries and Oceans Canada’s (DFO) current understanding of the Project. The Project was originally subject to an Impact Assessment pursuant to the Impact Assessment Act (IAA); however, following a judicial review, a Canada–Ontario Memorandum of Understanding (MOU) on the Assessment of Effects in Areas of Federal Jurisdiction of the Highway 413 Project was formed. Under this MOU, the Proponent must meet the requirements of any federal permits or authorizations pursuant to applicable laws, including the Fisheries Act (FA) and SARA.

Section 73 of SARA describes pre-conditions that must be met before an activity that affects a listed species can be authorized. Specifically, the Act indicates that:

• S.73(1) “the competent 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 wildlife species, any part of its critical habitat or the residences of its individuals” only if:
• S.73(2)(c) “affecting the species is incidental to carrying out the activity”;
• S.73(3)(a) “all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted”;
• S.73(3)(b) “all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals”; and,
• S.73(3)(c) “the activity will not jeopardize the survival or recovery of the species”.

As part of the SARA permitting process, it is the proponent’s responsibility to provide information to demonstrate that the pre-conditions of Section 73 have been met. To address pre-condition of S.73(3)(c), proponents are to “describe any changes that the activity may cause to the listed wildlife species, its critical habitat or the residences of its individuals, the possible effects of those changes and the significance of those effects” (Government of Canada 2021). Science advice has been requested by DFO’s Fish and Fish Habitat Protection Program (FFHPP) and the Species at Risk Program (SARP) to describe the information to be submitted by the Proponent to demonstrate that the pre-conditions of Section 73(3) have been met for the Project as it relates to Redside Dace and Silver Shiner.

In addition, the Proponent provided a proposed cumulative effects assessment (CEA) framework (CEA Framework) in October 2023 (MTO 2023) as part of what was, at the time, Stage 2 of the Environmental Assessment for the Project. DFO Science has been asked to review the proposed CEA Framework with specific focus on the quality and adequacy of the contents of the framework. The CEA Framework is also relevant to the FA because before an Authorization under the FA can be issued, “the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat” shall be considered (Section 34.1(1) d).

This Science Response Report addresses these requests in two sections - the information components of a jeopardy assessment (referred to herein as the Jeopardy Assessment Checklist) and a review of the proposed CEA Framework (referred to herein as the CEA Framework Review).

The objective of the Jeopardy Assessment Checklist section is to:

1. Identify the information components and known datasets that would support DFO’s assessment of the federal SARA S.73(3) pre-conditions for Redside Dace and Silver Shiner for this Project.

The objectives of the CEA Framework Review are to:

1. Assess the quality and adequacy of the framework presented and determine if any relevant components within the steps outlined are missing or require modification.
2. Provide recommendations for additional components to assess cumulative effects on fish and fish habitat, including Redside Dace and Silver Shiner.

This Science Response Report results from the September 9-10, 2024, regional peer review on Information Components to Inform Section 73 of the Species at Risk Act for Redside Dace (Clinostomus elongatus) and Silver Shiner (Notropis photogenis) and Review of the Proposed Cumulative Effects Assessment Framework - Ontario Highway 413 Project.

Science Response 2024/036 (PDF, 587 KB)

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