December 11, 2017…

       December 11, 2017

  Fiona Mcguiness

 Senior Policy Advisor

 Ministry of Natural Resources and Forestry

 Policy Division

 Species Conservation Policy Branch

 Species at Risk Recovery Section

 300 Water Street

 Peterborough, Ontario

 K9J 8M5

  Dear Ms. Mcguiness,

  Re: EBR 013-1476 - Development of the government response statement for American Eel under the Endangered Species Act, 2007

  On behalf of Ontario Nature and the David Suzuki Foundation, we would like to thank you for the opportunity to review the draft government response statement (GRS) for the American Eel. Though we share the ministry’s perspective regarding the importance of research and collaboration, particularly with Indigenous communities, we are deeply concerned about many key elements of the government’s proposed approach. Below we outline our concerns and offer recommendations for improving the GRS before it is finalized.

  1. Fundamentally flawed recovery goal

 The recovery goal is too vague to be meaningful. It is singularly unambitious and falls far short of the goal set out in the recovery strategy which is:

  to re-establish the species in a wide variety of waters throughout its historical range in Ontario by the year 2150, at abundance levels that: (1) restore cultural relationships and natural heritage values, (2) are consistent with ecosystems of high integrity and function, (3) strengthen the biodiversity of the province’s watersheds and (4) provide valued ecological services.” (Recovery Strategy, p. 33)

  The goal of the recovery strategy highlights re-establishment of the eel across its historic range, the restoration of cultural relationships, and the restoration of the eel’s historic role in terms of the ecological integrity of watersheds. None of these elements is included in the GRS recovery goal. Rather, the scope is narrowly focused on increasing the number of individuals that migrate out of the province; but even here, there is no clear target to drive recovery actions:

  The government’s goal for the recovery of American Eel is to increase the proportion of individuals that successfully migrate out of the province, within 25 years, by reducing threats to American Eel throughout its current Ontario range, and working with other jurisdictions to understand and address global threats. (lines 210 – 213)

  Without a clear target this goal could be met with just a very slight improvement to the current number of out-migrating eels within the next 25 years. Just one more out-migrating eel by the year 2043 would meet the test.

  Restated at lines 195-197, the GRS goal is even less assertive – increasing the “likelihood” (not achieving the outcome) of out-migration:

  The province’s goal for American Eel will focus on increasing the likelihood that eels that grow and mature in Ontario can successfully out-migrate, by working collaboratively to mitigate current threats.

  Again, ‘mitigating’ threats can mean many things, including next to nothing. If the government is truly committed to recovery of the American eel, it should provide a goal that sets the stage for significant action.

  Recommendation 1: Revise the GRS recovery goal so that it reflects the scope of the goal set out in the Recovery Strategy, including re-establishment of the American eel in places throughout its historic range and an increase in abundance that would support the restoration of cultural and ecological relationships. Include a specific, ambitious target for the number of out-migrating eels in the recovery goal.

  2. Lack of transparency about regulatory context

 There is a complete lack of transparency about the ESA regulatory exemption for hydro-electric generating stations (ONTARIO REGULATION 242/08, sec. 23.12) and what is actually required by industry in light of this exemption. The following statement is nothing short of misleading given the lack of information provided about the exemption and its implications for American eel:

  American Eel is listed as an endangered species under the ESA, which protects both the animal and its habitat. The ESA prohibits harm or harassment of the species and damage or destruction of its habitat without authorization. Such authorization would require that conditions established by the Ministry be met.” (lines 42 – 44)

  Use of the conditional verb “would require” suggests that this situation is hypothetical, when in fact the exemption has been in place for almost five years. The American eel and its habitat are not currently protected from harm given the ministry’s approach to implementing the ESA.

  The conditions set out in the exemption regulation should be spelled out in the GRS: What exactly is the hydropower industry required to do? What is the track record of this industry over the last five years? The vague summary provided at lines 158 – 161 is totally inadequate. The only measure discussed in any detail is a failed long-distance translocation (lines 162 – 170). What have been the impacts of all actions taken to date? In light of this record, are the conditions set out in the regulatory exemption adequate to drive recovery actions? Mere talk about collaborative efforts, woven throughout the GRS, is meaningless unless such information is shared with Indigenous communities and stakeholders.

  Under the exemption regulation, all action hinges on the completion of mitigation plans and annual reports, but proponents are not even required to submit these to the government, unless requested. What is the government’s track record in terms of reviewing these documents and monitoring and enforcing compliance? Has the MNRF requested and reviewed mitigation plans for all operators? Has it reviewed all of the annual reports? Has it conducted a summary analysis in terms of cumulative impacts of the hydro-power industry on American eel? If so, it should be sharing this information with Indigenous communities and stakeholders at meetings and in the GRS. If not, then assurances about “continuing to implement, promote compliance with and enforce conditions found in authorizations under the ESA” (lines 404 – 406) ring hollow.

  Recommendation 2: Conduct and share (with Indigenous communities and stakeholders) a summary analysis of all actions planned for and taken to date by the hydro-power industry to promote the recovery of American eel, based on mitigation plans and annual reports required under the regulatory exemption as well as MNRF compliance monitoring reports.

  Recommendation 3: Determine, in light of the recommended analysis of industry mitigation plans and annual reports and MNRF compliance monitoring reports, whether the regulatory exemption needs to be revised and strengthened in order to achieve the recovery of American eel. If deemed insufficient, then revise or remove the exemption so that the government can require the hydro industry to implement needed recovery actions, in accordance with sections 9 and 10 of the ESA.

  Recommendation 4: Firmly commit to revoking exemptions for facilities where mitigation plans are deemed insufficient and to charging operators found to be in non-compliance with an offence under the ESA.

   3. Priorities, timing and addressing delays

 Though we appreciate the identification of high priority actions (lines 278 – 315), both actions 7 (reducing out-migrating mortality) and 8 (improving upstream passage) at lines 383-401should be added to this high priority list of actions to be undertaken.

  Immediate action is needed to reduce eel mortality. According to the GRS, planning for safe upstream and downstream passage won’t be completed until 2020, and only then will there be support for implementation:

  Prioritizing additional locations for the safe upstream and downstream passage of eel will be completed by 2020, and implementation of the actions identified will be supported at that time (lines 369 – 371).

  Such delay of implementation is not acceptable, especially given the potential for delays in the planning process.

  Recommendation 5: Include as immediate priority actions the reduction of downstream mortality and the provision of safe upstream passage.

  We are concerned about delays in implementation that are implied in the government’s proposed approach, especially given the record to date on promoting the recovery of this species. American eel was first listed as endangered in Ontario in 2008. It then took five years to finalize the recovery strategy (draft completed in 2010, yet not finalized until 2013), and another five years to finalize the GRS. Ten years of inaction is too long for one of the most critically endangered animals in Ontario, a species that has declined in abundance by 99% in Ontario since the 1970s. This history of delay should be acknowledged in the GRS, with a solid commitment to make up for lost time, driven by specific, measurable recovery targets and tighter timelines. For example, evaluating plans to provide passage only every ten years (lines 273 – 275) is not enough to support adaptive planning and spur recovery actions for this critically endangered species.

  Recommendation 6: Establish a process to assess progress and to revise and update targets every three years to build momentum and drive action towards American eel recovery.

  4. Inadequate approach to providing safe upstream and downstream passage

 Restoring upstream passage was the #1 objective of the recovery strategy: “Strategically restore access to habitat within the historical range of the American Eel.” The authors of the strategy also proposed a quantifiable target for upstream passage: “Beginning immediately and using the habitat range in 2000 as the baseline, increase American Eel access to habitat by 10 percent every five years, consistent with the draft National Management Plan for American Eel (CEWG 2009)” (Table 1, p. 53).

  The rationale for this prioritization of upstream passage was well supported in the recovery strategy:

  Now that fishing mortality has been eliminated, the cumulative effects of dams that reduced access to a wide variety of habitats and significant turbine mortality by hydroelectric facilities during seaward migration are the most significant threats to survival and recovery. Thus the two main pillars to this recovery strategy are: (1) strategic enhancement of upstream passage to a diverse array of habitats and, (2) strategically enhanced escapement. (p. 55)

  The most effective actions in the short term are likely to be rapid, strategic improvements to upstream passage, restoring some level of connectivity within watersheds. Early provision of upstream passage is a widely adopted strategy in numerous North American jurisdictions (Elmer and Murphy 2007, GMCME 2007, PFBC 2007, PRRT 2009), as it is highly feasible and provides numerous benefits (McCleave 2001, Briand et al. 2005, Machut et al. 2007). It is especially effective and important where large females predominate (McCleave 2001, Hitt et al. 2012), despite ongoing turbine mortalities (McCleave 2001). (p. 56)

  Enhancing access to tributary habitat and improving headwater connectivity by improving access may increase the carrying capacity of the entire watershed (Machut et al. 2007), and increase the relative abundance of females which tend to be more common in upstream areas of low density (Krueger and Oliveira 1999, Oliveira and McCleave 2000, Schmidt et al. 2009, Hitt et al. 2012). Consequently, improving upstream passage will enable improvement in production from a diversity of inland watersheds, enhancing over time biodiversity, ecosystem services and resilience to future anthropogenic perturbations in Ontario and elsewhere. This increased resilience will assist eels in enduring the effects of climate change and the planned addition of many more waterpower facilities within the Ontario range of eels (Secor 2010, Venturelli et al. 2010, see also the Supporting Narrative). Indeed, the conservation and improved abundance of females (by restoring connectivity to tributaries and headwater reaches) is a mechanism by which to improve eel abundance throughout their range (Hitt et al. 2012). Vigorous, strategic efforts to protect and restore migratory corridors (see Section 2.5) are required urgently. (p. 56)

  In light of this evidence, we take exception to the premise underlying the following statement from the GRS, which invites a do-nothing response:

  Similarly, expanding the distribution of eel beyond the current range in the absence of effective mitigation associated with downstream passage may pose risks to the species’ persistence in Ontario and have implications for the global population. (lines 185 – 187)

  On the contrary, as indicated in the recovery strategy, there is no reason for delay:

  Because naturally recruited Ontario eels spend one to two decades growing and maturing in fresh water, there will be time to evaluate and implement measures for downstream passage options once upstream passage has been enabled. (pp. 56 – 57)

  Recommendation 7: Incorporate and adopt the recovery strategy target of increasing American eel access to upstream habitat by 10 percent every five years, beginning immediately and using the habitat range in 2000 as the baseline.

  In implementing this action, we support the proposal of the Canadian Wildlife Federation (CWF) that the provision of upstream passage be based on the likelihood of cumulative survival. More specifically, by 2019, upstream passage should be provided at all barriers in Ontario where passage would result in a greater than 50 per cent cumulative survival. At the same time, work should begin immediately to assess potential ladder locations and develop upstream passage plans at all barriers where passage would result in greater than 33 percent cumulative survival, for implementation by 2020. Only unambiguous targets such as these will drive the action needed to recover the species. Informed decisions can and should be made immediately.

  Similarly, an unambiguous target is needed to drive efforts to provide downstream passage. Action 7, as currently worded (“reduce mortality of out-migrating eels”) provides little guidance for proponents and, as noted by the CWF, could conceivably be addressed by transporting a single eel downstream.  We acknowledge and support the following recommendation by the CWF:

  Recommendation 8: Require proponents to take immediate steps to reduce mortality of out-migrating American eel by 25 percent relative to 2007 rates at all facilities where more than five eels have been observed upstream in the past decade.

  5. New hydro-power projects not adequately addressed

 The proposed GRS does not deal adequately with new hydro projects. In contrast, in the recovery strategy designing new facilities so that they provide safe upstream passage is identified as a critical priority:

  1.3 Ensure all new facilities on watersheds within the native range of eels are designed to allow upstream passage for the American Eel.

 •Protect migratory corridors from further permanent blockages (see Watershed Implementation Plans).

 •Protect migratory corridors from harmful alterations of disruptions during peak migration periods” (Recovery Strategy, Table 2, p. 58)

  Recommendation 9: Require that, within the historic range of the American eel, any new construction as well as any major renovations to dams and hydro facilities be designed so as to provide safe upstream and downstream passage for this species.

  6. “Feasibility” is undefined, inviting delay and inaction.

 The notion of ‘feasibility’ permeates the proposed GRS (e.g., lines 20–21, 219, 237-239, 301, 322-323, 361-363, 446). The underlying assumptions about what is feasible are not discussed, yet are repeatedly associated with cost:

  Potential ecological and socio-economic risks and factors, and feasibility must also be considered in developing practical solutions that support American Eel protection and recovery in Ontario. (lines 237-239)

  Undertaking these modifications during other physical work (e.g., re-design, upgrades or re-development) may reduce these costs and increase the feasibility of these actions. (lines 361-363).

  While we agree that expensive actions which are not effective should be avoided, we do not agree that cost alone should be used as a reason for avoiding effective action in a timely fashion. Modifying hydro-electric facilities only when opportunities arise (lines 389-392) is not sufficient. Mitigation technologies should be considered and assessed immediately at all facilities, and implemented wherever such action will have a positive outcome for the species.

  Further, it is our understanding that at some hydro facilities no mitigation at all is occurring, based on a loose interpretation of what might be reasonable or feasible. If true, this is unacceptable, given the fact that a variety of effective mitigation measures have existed for years (as outlined in the Ontario Waterpower Associations 2010 Best Management Practices). Practices such as spilling water during the night time when most eels migrate downstream are known to be effective. These or equally effective alternatives should be required elements of mitigation plans, necessary to meet the conditions for exemption under the ESA.

   Recommendation 10: When reviewing mitigation plans and annual reports, ensure that cost alone is not used as an excuse to avoid implementation of effective mitigation measures.

    7. Inappropriate treatment of habitat

 We are very concerned about the proposal in the GRS not to proceed with a habitat regulation for American eel. This is a serious shortcoming considering that this species has been extirpated from much of its range. Without a habitat regulation, habitat will be defined as the area which the species currently depends on directly or indirectly to carry out its life processes (ESA, section 2(1)(b)). Any ESA protections (even the conditions set out in the exemption regulation) would not apply to other areas within the species’ historic range. For example, new facilities or existing facilities undergoing retrofits outside of the current area of occupation would fall outside of ESA requirements, undermining any plans for full and progressive recovery of the species.

  This proposal runs contrary to the recommendation included in the recovery strategy, according to which all reaches currently or formerly occupied or used as migratory corridors should be prescribed as habitat in a regulation for American eel (pp. 47-48). As noted above, the recovery strategy identifies “rapid, strategic improvements to upstream passage” as the most likely action to be effective (p. 56) and as an approach used in numerous jurisdictions. But unless a there is a habitat regulation to ensure that historic habitat is covered under the ESA, there will be no regulatory driver for such improvements.

  The reason given for not developing a habitat regulation is in itself not acceptable:

  Eels are habitat generalists, and at their current level of abundance, sufficient habitat is available for growth and maturation in Ontario. As a result, a habitat regulation will not be developed for the species. (lines 375 – 377)

  The assumption that current habitat is sufficient for the recovery of this species (reiterated at lines 109 – 110) is unfounded. In fact, the role of habitat quantity and eel fitness is largely unknown. According to CWF, “if eels are seeking out upstream habitats for reasons other than density dependence (i.e., natural selection or genetic predetermination), there may be fitness consequences to preventing upstream passage” (Nicolas Lapointe, personal communication). The assumption that current habitat is sufficient is also inconsistent with a statement in the GRS which identifies “reduced access to productive growth habitat caused by in-stream barriers to upstream migration (e.g., navigation, flood control and hydro-electric dams)” as one of the highest concern threats (lines 115 – 117).

  In an era of catastrophic climate change and biodiversity loss, the proposal not to prepare a habitat regulation bespeaks an unacceptable lack of precaution, foresight and any realistic assessment of what is needed to recover this species. This grave shortcoming is illustrated, for example, in the following statement: “As American Eel recovery proceeds over several generations, longer-term facilitation of range increases may be necessary to support cultural and biological needs for the species” (lines 219-221). Such tentative language (“may be”) is objectionable. There is no doubt that range increases will be needed to restore cultural and ecological relationships with American eel.

  Recommendation 11: As recommended in the recovery strategy, develop a habitat regulation for this species that includes all reaches currently or formerly occupied or used as migratory corridors.

  Recommendation 12: Remove or revise any statements in the GRS which imply that access to historic habitat is not necessary to achieve the recovery of American eel.

  Concluding remarks

 In her 2017 report, Good Choices, Bad Choices, the Environmental Commissioner of Ontario highlights the abysmal record of MNRF in implementing the ESA. She states that MNRF is using modernization approvals (in this case, the exemption regulation) “to sacrifice the protection of species at risk for the convenience of industry.” (p.3)  We are deeply concerned that this GRS for American eel is simply another example of the ministry’s general failure to adequately protect and recover species at risk.

  We urge you to heed our recommendations above, and to revise the GRS so that it aligns with recommendations in the recovery strategy and so that effective recovery actions for this critically endangered species can and will be implemented without further delay.

   Yours truly,

    Dr. Anne Bell

 Director of Conservation and Education

 Ontario Nature

     Rachel Plotkin

 Ontario Science Projects Manager

 David Suzuki Foundation

[Original Comment ID: 211513]