Vol. 139, No. 19 — September 21, 2005

Registration
SOR/2005-249 August 31, 2005

FISHERIES ACT

Regulations Amending the Ontario Fishery Regulations, 1989

P.C. 2005-1486 August 31, 2005

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 (see footnote a) of the Fisheries Act, hereby makes the annexed Regulations Amending the Ontario Fishery Regulations, 1989.

REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 1989

AMENDMENTS

1. Subsection 9.1(1) of the Ontario Fishery Regulations, 1989 (see footnote 1) is replaced by the following:

9.1 (1) Subject to subsection (1.1), no person shall possess live fish or viable eggs of a species set out in Part IV of Schedule II (in this section referred to as "invasive fish").

(1.1) The provincial minister may, on request by a person, authorize that person to possess specified species and quantities of invasive fish if the person establishes that

(a) he or she is a qualified fisheries researcher working in a recognized research facility;

(b) he or she has, and will use, the equipment and controls necessary to protect against any release of invasive fish into Ontario waters; and

(c) the sole purpose of his or her possession of invasive fish is for scientific research on their potential impacts in Ontario waters, the mitigation of those impacts and the prevention or control of their spread.

2. Section 10.2 of the Regulations is replaced by the following:

10.2 No person shall bring live leeches into Ontario for use as bait.

3. Schedule II to the Regulations is amended by replacing the reference "(Sections 2 and 9.2)" after the heading "SCHEDULE II" with the reference "(Sections 2, 9.1 and 9.2)".

4. Schedule II to the Regulations is amended by adding the following after Part III:

PART IV

Fish that Shall not be Possessed When Alive

Item	Column I Common Name	Column II Scientific Name
1.	Ruffe	Gymnocephalus cernuus
2.	Grass carp	Ctenopharyngodon idella
3.	Bighead carp	Hypophthalmichthys nobilis
4.	Silver carp	Hypophthalmichthys molitrix
5.	Black carp	Mylopharyngodon piceus
6.	Snakehead family	Channidae
7.	Round goby	Neogobius melanostomus
8.	Tubenose goby	Proterorhinus marmoratus

COMING INTO FORCE

5. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Government of Ontario has requested amendments to the Ontario Fishery Regulations, 1989 (OFR), which are made pursuant to the federal Fisheries Act. Ontario manages the province's freshwater fisheries by agreement with the federal government. Amendments to the Regulations, however, must be processed by the Department of Fisheries and Oceans (DFO) and approved by the Governor in Council since they are made under federal legislation.

These amendments to the OFR are to conserve and protect Ontario's fish populations, and to protect the aquatic ecosystems and biodiversity of the province from the threat of certain aquatic invasive species. The amendments will prohibit the possession of a number of invasive fish species as well as the import of live leeches into Ontario for use as bait.

Invasive species pose threats to the economy, to local ecology, and to human health. Aquatic invasive species that are not native to Ontario waters can completely change ecosystems by competing with native species for habitat and food. Their establishment can damage sensitive ecosystems, and negatively impact fishing, tourism, and other industries that form the backbone of local economies. In addition, the introduction of new diseases or pathogens into Ontario waters by aquatic invasive species can have drastic environmental consequences; put native aquatic species at risk and even impact public health. Some aquatic invasive species, such as the infamous zebra mussel, can damage human infrastructure at costs in excess of millions of dollars per year. In the absence of their natural predators, the most aggressive of invasive species can spread rapidly and can radically alter habitat, rendering it inhospitable for native species.

The most effective approach to minimizing the effects of the invasive species that are (or could become) established in Ontario waters involves managing the pathways through which they enter and spread through the province. These pathways include, among others,

1. the live food fish industry which imports and distributes live fish and other aquatic species for human consumption;
2. the aquarium/water garden trade which imports and sells live aquatic fish, invertebrate, plant, amphibian and reptile species for use in indoor aquariums and outdoor ornamental ponds and water gardens; and
3. the import and sale of live species for use as bait in recreational fishing.

Prohibiting Possession of Invasive Fish Species

Ontario residents currently use a variety of live non-native fish species for food and for use in both aquaria and water gardens. Unfortunately, the transportation and sale of some of these live aquatic species increases the likelihood of their escape or introduction into Ontario waters and, as a result, poses significant risk to the health and sustainability of provincial fisheries and ecosystems.

Most non-native species imported into Ontario, for sale as food or for use in aquaria and water gardens are of tropical origin and, therefore, the risk of their introduction into provincial waters is extremely small. Equally small is the likelihood that most of these species could survive to harm fish populations or aquatic ecosystems. However, a number of non-native species, such as snakeheads, gobies and certain carp species, have been shown to be very invasive in parts of the United States and there is significant potential for their introduction and establishment in Ontario waters. In the United States, where these invasive species have been introduced both intentionally and unintentionally, their ability to survive and out-compete native species for food and other resources has resulted in severe harm to native fish populations and their aquatic habitats.

Therefore, to proactively protect Ontario's aquatic resources, using a precautionary approach, this amendment proposes to prohibit the possession of live specimens of the following species: grass carp, bighead carp, silver carp, black carp, snakeheads, round goby and tubenose goby.

Carp

Four species of invasive carp (Grass carp, Bighead carp, Silver carp and Black carp) have escaped from aquaculture facilities in the United States and wild populations have become established. Despite a few isolated occurrences of these fish being caught in Lakes Erie, Ontario and Huron, fisheries managers agree these species of carp are not established in Ontario. Further, these species are not approved for culture under provincial Fish and Wildlife Conservation Act and the Regulations and, therefore, cannot be grown in Ontario aquaculture facilities.

However, these invasive carp species are considered to be a significant threat to Ontario aquatic ecosystems, since they are known to become very abundant and to eat large amounts of plankton, benthos and molluscs. These species will disrupt food webs, threaten endangered species and compete with recreational and commercial fish populations that are the basis for economically important fisheries. A number of known diseases and parasites have also been reported in carp that can infect Ontario's native fish species.

Allowing the possession of living carp species in Ontario carries significant risks of their escape during transport or as a result of improper disposal of spoiled shipments. In addition, once live specimens are purchased, there are risks of their intentional release for control of unwanted aquatic plants or organisms, for cultivation in ornamental ponds, for cultural practices, or in protest of their captivity. Both the Great Lakes Fishery Commission and the International Joint Commission have called for restrictions on the import of invasive carp.

International efforts are focussed on preventing the spread of these carp species into the Great Lakes through either the Chicago Sanitary and Ship Canal or other pathways. In the United States, the US Fish and Wildlife Service conducted public consultations on a proposal to list black, bighead and silver carp as injurious species under the Lacey Act (Legislation in the United States that prohibits the importation or shipment of injurious mammals, birds, fish (including mollusks and crustacea), amphibia, and reptiles). The proposal was to restrict possession and transport of these carp species due to the environmental impact they can cause in the open US waters. A number of states bordering the Great Lakes including Ohio, Michigan, Illinois, New York, and Indiana have already passed regulations restricting the transport of these species in an attempt to prevent their introduction. In US jurisdictions where grass carp are cultured, there is a legal requirement for all fish to be triploid (that is, unable to reproduce) to ensure no self-sustaining populations can become established.

Snakehead

To date, there are no confirmed reports of snakehead being captured in Ontario waters.

However, the family of snakehead species are able to tolerate a wide range of aquatic conditions and because they can breathe air, some species are capable of moving overland from one body of water to another. Adult snakeheads are very aggressive predators of fish as well as frogs, birds and small mammals. Snakeheads carry a number of parasites and diseases, including epizootic ulcerative syndrome (EUS) which can be transmitted to native fish populations.

If possession of snakeheads is not prohibited and they enter Ontario's waters, these species will have a major negative impact on Ontario's fish communities as they will compete with and feed on native fish species. In addition, snakeheads may transmit new parasites and diseases, including EUS, into those communities. A further risk is the impact on endangered fish species and amphibians.

In the United States, although only four species of snakehead have been detected in open waters, all 28 species of snakehead (Fam: Channidae) have been added to the list of injurious fish, mollusks and crustacea under the Lacey Act. Concern over negative impacts of the introduction and establishment of these fish has led to a prohibition of their importation and transportation between states and territories. Many individual states have also prohibited possession of snakehead to further reduce the risk of invasion.

Goby

Two species of freshwater goby (round goby and tubenose goby) have been introduced into the Ontario portions of the Great Lakes via ballast water from the Black and Caspian Seas. The round goby species in particular has expanded rapidly, displacing native fish species such as sculpins, log perch and darters.

Like snakehead species, gobies are able to tolerate a wide range of water conditions. Through direct competition for food, gobies negatively impact smallmouth bass and walleye. They also reduce the size of native fish populations by consuming the eggs and young. In addition to the above, because gobies also feed on zebra mussels which accumulate contaminants, a new pathway for the transfer of those contaminants is provided when gobies are eaten by bass, walleye and other sport fish. This increases concern over the level of contaminants in sport fish consumed by humans. Further, since gobies were discovered in the Great Lakes, a number of negative impacts to native species have been documented including a reduction in numbers of sculpin, an important native food source for fish sought in the commercial and recreational fishery. During the summer of 2002, gobies were associated with an outbreak of Type E botulism that killed large numbers of fish and birds, including loons, in Lakes Erie and Ontario.

Allowing the possession of live invasive gobies greatly increases the risk of their spread from the Great Lakes to Ontario's inland lakes and streams. In 2003, they were discovered in the Trent Severn Waterway near Peterborough, and in summer 2004, specimens were found in Pefferlaw Brook, a tributary of Lake Simcoe.

The use of gobies as live bait is the most probable pathway for their spread. Although they cannot be legally used as bait, gobies have been found in bait pails and are also caught when other species of live bait are harvested. Gobies live well in bait pails and have proven to be attractive live bait for smallmouth bass, walleye, perch and rockbass. A 1991 review of introduced fish indicated that, despite it being illegal to do so, 13 species of exotic fish were introduced through the dumping of bait pails. Surveys indicate that almost 50% of bait pails containing live fish are dumped into lakes and streams at the end of fishing trips.

For several decades, the province has prohibited the import of live fish, crayfish and salamanders for use as bait so as to minimize accidental introductions of undesirable invasive species. The Ontario Ministry of Natural Resources (OMNR), the Bait Association of Ontario (BAO) and the Ontario Federation of Anglers and Hunters have also worked together on a public education plan to reduce the transfer of live fish through bait pails. This OFR amendment prohibiting possession of round and tubenose goby will reduce the spread of these species by anglers to other Ontario waters.

Exemption for Research

The OMNR has requested an exemption from the prohibition on the possession of live invasive species to permit their possession for the purpose of scientific research.

Under this exemption, the Minister of Ontario Natural Resources can authorize the possession of invasive species by qualified researchers in recognized research facilities provided the facilities are equipped to ensure that no release of invasive fish species into the waters of Ontario occurs and provided the possession is for scientific research on their potential impacts, mitigation of those impacts, the prevention of their introduction and control of their spread.

Incorporating this exception into the OFR is vital to ensure that this scientific research can continue in Ontario. Requiring that the facilities be recognized and ensure that controls are in place to prevent release of invasive fish is a reasonable prerequisite for authorization.

Prohibiting Importation of Live Leeches

Although, as stated above, the OFR have, for many years, prohibited the import into Ontario of live fish, crayfish and salamanders for use as bait and, since 1999, the import by anglers of live leeches as bait, the Regulations do not prohibit the import of live leeches by commercial bait licence holders.

Unfortunately, the use as bait of imported live leeches poses a risk to the health and sustainability of the province's fisheries. Of the 45 leech species present in the Great Lakes Basin, 35 are common to both the US and Ontario. Therefore, if importation of leeches is allowed to continue, the potential is high for the introduction into Ontario waters of 10 invasive leech species. There are also risks of other invasive organisms (e.g. zebra mussels), diseases and pathogens being introduced via the water in which live leeches are transported.

Therefore, these amendments to the OFR also propose to prohibit all import of live leeches into Ontario for use as bait. This change will complement the limited prohibition that was put in place in 1999 allowing only commercial bait licence holders to import live leeches. Licence holders will still be permitted to harvest and sell domestic leeches as well as other domestically harvested live bait species (e.g., minnows, worms, frogs, crayfish, etc.).

Alternatives

The status quo was not considered an appropriate means of protecting Ontario's biodiversity and aquatic ecosystems from the threat of aquatic invasive species. The status quo would not allow the maintenance of healthy, sustainable provincial fisheries and the continued social and economic benefit from those resources. Nor would the status quo prevent the high costs of ecosystem enhancement and restoration. The status quo represents an unacceptable environmental risk and would not constitute a proactive or precautionary approach to safeguarding Ontario's aquatic ecosystems.

Prohibiting Possession of Invasive Fish Species

Consideration was given to establishing provincial regulations requiring that carp sold in fish markets be killed before consumers can take them home (killed at point of sale). However, the risk assessment completed by the OMNR in 1999 indicated that the release of fish or their holding water during transport to the points of sale represented a significant risk. A recent traffic accident on Highway 401 supports this concern. Hundreds of live Tilapia, another fish common in live fish markets, were released on the highway when the truck transporting them overturned. In this case, the fish released were unable to survive as they were of tropical origin. However, if the species had been a shipment of live snakehead, the consequences of the accident would have been significantly more serious.

Consideration was also given to establishing best management practices (bmps) for the live food fish industry. However, since there is no industry association representing the live food fish trade in Ontario, it was determined that development of industry supported bmps, communication of bmps to the industry, and implementation and consistent application of the bmps by the industry would not be achievable in a time frame consistent with the urgency of this matter.

Regulations under the province's Fish and Wildlife Conservation Act already prohibit the unlicensed buying and selling of carp snakehead and goby species. And while these provincial regulations help reduce the risk of these species being introduced, there remains a significant risk that these species may escape into Ontario waters during their handling or transport. In the case of gobies, prohibiting their possession under the OFR will minimize the risk of their spread by anglers who capture and transport them to other water bodies for use as live bait.

Prohibiting Importation of Live Leeches

Similarly, prohibiting the import into Ontario of live leeches for use as bait is the only alternative that will adequately protect provincial waters from the environmental risks presented by the introduction of invasive species, diseases and pathogens.

A suggestion made during consultations to allow the import of leeches from "certified" facilities was not considered a viable alternative as it could not adequately ensure that introduction of invasive species would not take place. Also, the development of such a certification process would require considerable financial and human resources.

Benefits and Costs

Ontario fisheries are vulnerable to the competition for food and habitat posed by invasive species and by the diseases or pathogens that can be introduced via the water in which these species are transported. Invasive species can cause drastic changes to aquatic habitats and ecosystems, further threatening Ontario's fisheries. Such occurrences would have a serious negative effect on recreational and commercial fishing, on tourism-based businesses and on the fishing supply and service sector.

The OMNR is responsible for ensuring healthy, sustainable fisheries province-wide for all its citizens and for minimizing as much as possible the risks of damage to those fisheries. A proactive approach is necessary to safeguard Ontario's fisheries. The Great Lakes commercial fishery is one of the largest and the most valuable freshwater fisheries in the world. In Canada, the Great Lakes account for an average annual landed value of about 45 million dollars and adds over 100 million dollars to the Canadian economy. Recreational angling provides a further $350 million, for an overall contribution of $450 million to the Canadian economy. The combined value of both the American and Canadian commercial and recreational fisheries in the Great Lakes has been estimated to be as much as $7 billion annually.

Prohibiting Possession of Invasive Fish Species

In Canada, published information available on several other invasive species (including Dutch Elm Disease, Sea Lamprey, Zebra Mussel and others) conservatively Cost of Control/ Research Efforts at $5.5 billion (see footnote 2). A US report estimates the annual economic burden of invasive species in that country at $137 billion. The World Conservation Union rates invasive alien species as the second worst threat to biodiversity after habitat loss.

Black, bighead and silver carp are imported into Ontario predominantly from the state of Arkansas and these species are not exported from Ontario. Concerns over the environmental impact of these three carp species in US waters has led the United States to propose restrict possession and transport of these species by listing them as injurious under the Lacey Act. In addition, a number of states bordering the Great Lakes including Ohio, Michigan, Illinois, New York, and Indiana have passed regulations restricting the transport of these species in order to prevent their introduction. Further, in US jurisdictions where grass carp are cultured, there is a legal requirement for all fish to be triploid (unable to reproduce) to ensure that no self-sustaining populations can become established.

In the US, 28 species of snakehead (Family Channidae) have been added to the list of injurious fish, mollusks and crustacea under the Lacey Act, thus prohibiting their importation and transportation between states and territories. Many individual states have also prohibited possession of snakehead to further reduce the risks of invasion. In addition, regulations under the provincial Fish and Wildlife Conservation Act, 1997, were recently amended to prohibit the buying and selling of live specimens of the four carp, all snakehead and two goby species.

The amendment to prohibit the possession of the 4 live carp species will have an impact on some commercial importers and retailers of these fish species. However, importers, wholesalers, fish markets and other retailers of these fish will still be able to deal in freshly killed and frozen carp. And, when live carp are no longer available, the consumer market is expected to shift to the purchase of freshly killed or frozen carp. Also, many other non-invasive live fish species are available to satisfy consumer demand for live food fish. While a major economic impact is not expected, retailers have indicated that carp prices will be affected, since consumers will not likely wish to pay the same price for fresh/frozen carp as for live carp.

The two goby species are not imported into Ontario and are not currently sold by the aquarium or water garden trade. While it is known that snakeheads are sold in aquarium stores in Ontario, they are not found in great numbers and the majority of stores indicate that they are uncommon. The prohibition of their possession is not expected to have an impact as the minor market for these species will shift to other available species.

The amendment prohibiting possession of snakehead and gobies will complement the recent provincial regulatory amendments prohibiting the sale of live grass carp and snakeheads by the water garden and aquarium trades. The OFR amendment will further reduce introduction and spread of snakehead and goby species by anglers.

Prohibiting Importation of Live Leeches

To date, live leeches have not represented a significant portion of the bait industry in the province. Commercial bait licence holders sell leeches harvested from Ontario waters and supplement their supply by importing leeches from the United States. Estimates indicate that, in 2002, approximately one half of all live leeches sold in Ontario had been imported from outside the province. Some commercial licence holders prefer importing less expensive leeches from the US to harvesting domestic leeches. Of the 20 million dollars in annual revenues of the live bait industry in Ontario, the retail sale of leeches is estimated to account for approximately 5.4 million dollars.

The leeches imported from the US come from about eight border States but the vast majority of imported leeches come from Minnesota. This state requires leech harvesters to obtain a permit before leeches can be imported or moved within the state. It is difficult to determine the economic impact of the prohibition to import leeches on the leech industry in the United States as these states do not keep records on leech harvest and export. Discussions with some leech operators indicate that the ban may result in a reduction in the price of domestic leeches since more will be available for sale within the state. In addition, the prohibition may impact some leech exporters who will have to find new markets for leeches.

The proposal to prohibit live leech imports into Ontario was first announced by the OMNR in 1999 and was delayed in order to educate and assist commercial bait licence holders in developing an industry based solely on domestically produced leeches. This training combined with opening previously unused provincial bait harvest areas and maximizing the use of current bait harvest areas will minimize the impact of the proposed prohibition on commercial bait licence holders.

The prohibition on live leech imports may result in a temporary reduction in revenues for leech dealers until domestic leech harvests increase. Estimates place this short term revenue reduction at approximately 2 million dollars. In addition, the price of leeches for anglers may rise temporarily but should stabilize as the industry adjusts. It should be noted also that leeches (imported or domestic) are only one of the types of live domestic bait used by anglers (e.g., domestic minnows, worms, frogs, crayfish, etc.) and these bait species will still be available to anglers.

The impact of this amendment on leech dealers is minor when compared to the level of negative environmental and economic impact that continued live leech imports could have on Ontario's fisheries.

Impact on Aboriginal groups

Neither of the above amendments apply to aboriginal fishing for food, social or ceremonial purposes. No aboriginal groups are involved in import or sale of the carp, snakehead or goby species. Further, the very few aboriginal peoples involved in the commercial leech industry have voiced no concerns with the proposal to prohibit the import of live leeches.

Trade Implications

The proposals to prohibit possession of live invasive carp, snakehead and goby and to prohibit the importation of live leeches into Ontario are expected to have minimal impact on international trade. As stated above, the US and most states bordering the Great Lakes have already moved to ban the import and/or transport of the invasive species proposed for prohibition in this amendment. Therefore, there is little trade for these species (other than some leeches) and, as a result, no appreciable impact on trade.

The issue of a prohibition of the import of live leeches was discussed as part of the 1999 North American Free Trade Agreement (NAFTA) discussions between the Department of Foreign Affairs and International Trade (DFAIT) and US trade representatives in Washington DC. DFAIT clearly indicated that, for conservation reasons, the intention was to prohibit the importation of live leeches as soon as logistically possible. Subsequent meetings in Ottawa, Toronto and Washington reaffirmed this intention.

Existing trade agreements allow for exemptions to the "like-national" treatment provisions for conservation or environmental protection reasons. The need for this amendment to prevent the importation of invasive leech species, diseases or pathogens falls within the above exemption criteria. US trade representatives recognise that these amendments represented a legitimate NAFTA exemption, particularly since some states have similar legislation for similar reasons.

Consultation

The Province of Ontario has an extensive consultation process in place to ensure that changes affecting individual water bodies or fishing areas receive an appropriate level of public consultation. Appropriate consultation tools are selected based on the complexity of proposed regulatory changes.

A communications strategy is implemented for all proposed changes to ensure that discussions are open and transparent. Information on proposed changes and invitations to comment are disseminated in various ways, including notices posted in affected areas, radio announcements, advertisements in local papers, news releases, posting on the OMNR Internet site and posting of proposal and information notices on the Environmental Bill of Rights Environmental Registry (EBR).

Prohibiting Possession of Invasive Fish Species

On February 27, 2004, the proposal to prohibit buying and selling of live invasive carp, snakeheads and gobies under the Fish and Wildlife Conservation Act, 1997, (FWCA) and to amend the OFR to prohibit possession of these live fish was announced. A press release was issued and these initiatives were posted for a 30-day comment period on the EBR.

The intention of the OMNR to proceed with OFR amendments prohibiting possession of live carp, snakeheads and gobies was again made clear to 900 retail outlets when the amendments to the FWCA came into force. No enquiries or comments were received from retail outlets and industry associations as a result of the announced intentions.

As part of direct consultations on the OFR amendment proposal, letters were sent to affected commercial companies and stakeholder organizations and notices of the EBR posting were placed in the major Asian language newspapers. A total of 125 responses were received, with 71% supporting the proposal, 15% opposing, 10% urging Ontario to continue to allow possession of live carp while prohibiting live sale, and 4% indicating neither support nor opposition. All comments received on the proposed prohibition of the possession of live snakehead and goby species were supportive of the change and no concerns were raised during consultations by the few aquarium or water garden businesses that deal in snakehead.

On the proposal to prohibit possession of the four carp species, a major live food fish wholesaler provided an opposing response. The OMNR convened a meeting with this company to discuss the proposal and its potential impact on the import business. The wholesaler suggested an alternative to the proposed regulatory change that would allow live possession but would require fish to be killed at the point of sale. A suggestion was also made that larger facilities should be exempt from the prohibition as they could ensure their operations presented low risk of invasive species introduction.

It was OMNR's position that these alternatives would not address the potential for release of these invasive species during transport. In addition, the resources necessary to review and monitor the fish handling practices of the Ontario enterprises dealing in live carp species would be prohibitive and could not adequately ensure prevention of invasive species introduction.

Opposition by other stakeholders to the proposal also focused on the carp species (bighead and grass carp). The following is a summary of the concerns raised during the EBR public comment period, and the OMNR response.

• The proposed regulation for carp species should be phased in over time.
  
  This option was considered inappropriate because, once established, these species are extremely difficult, if not impossible, to eradicate. Measures to control impacts after the invasion of species are expensive, often ineffective and can cause further damage to the environment. It is necessary for the OMNR to proceed with the regulation for the carp species listed to prevent the anticipated negative impacts if these fish become established in Ontario waters.
  
  
• Carp should continue to be sold in supermarkets, but should be slaughtered and cleaned at point of sale. Respondents submitted that they enjoyed eating fresh fish and preferred these species since they were familiar and economically priced.
  
  The release of live fish can occur prior to the point of consumer sale such as in transport to and from import facilities and wholesalers. The proposed regulatory change is necessary to protect the environment and economy from the accidental and intentional release of the invasive fish species listed. Grass carp and bighead carp can still be sold fresh, frozen or in any state other than live. Numerous other species of live fish not considered a high risk to the environment will continue to be available in fish markets.
  
  
• Comments disputed references made in the proposal to releasing fish for cultural or religious purposes, stating that this was not common practice. In addition, responses stated that fish escape during transport was highly improbable.
  
  Numerous incidents of grass and bighead carp being captured in the Great Lakes clearly demonstrates that these fish are being released accidentally or intentionally into Ontario waters. On at least one occasion, live fish being transported to markets in the Greater Toronto Area escaped from transport containers when the truck was involved in a traffic accident. This proposed regulation is required to prevent the accidental and/or intentional release of these detrimental species.
  
  
• Any reference to grass carp should be deleted from the proposed Regulation.
  
  While grass carp are currently not established in Ontario waters, it is necessary to prohibit this species to proactively prevent its introduction and spread, so as to protect the environment and the economy. In other jurisdictions, where grass carp have become established, they feed extensively on aquatic vegetation which results in increasing turbidity causing negative impacts on fish habitat. Impacts to wetland habitat and fish and wildlife species that rely on wetlands have also been documented.

Prohibiting Importation of Live Leeches

The proposal to prohibit the import of leeches was first announced in 1999 by the Ontario Minister of Natural Resources, and was delayed to allow the commercial bait industry time to prepare for its implementation. In July 2002, the proposal was posted on the Environmental Bill of Rights Registry. The public was invited to comment on the proposal. A direct mailing to the 1,400 commercial bait licence holders in Ontario provided them with information on the EBR posting and on how to respond to the proposal. OMNR staff also met with the Bait Association of Ontario and other bait harvesters to discuss the proposal.

Eleven responses to the EBR posting were received on the leech import prohibition. Two individuals supported the proposal stating that it is important to prevent invasive species from entering Ontario and that live bait from outside the province should not be allowed to be transferred to Ontario waters.

Five individuals and four organizations (2 in Minnesota and 2 in Ontario) opposed the implementation of the prohibition. Their comments expressed the following points.

• Ontario bait harvesters will not be able to meet the demand for leeches if this prohibition is implemented.
  
  The OMNR is encouraging commercial bait licence holders to maximize their utilization of existing bait harvest areas which, to date; have been underused by some licence holders in favour of importing cheaper US leeches. There are also about 750 Bait Harvest Areas in Ontario (about 20% of the total) that are not being used. The OMNR is reviewing this situation and working with the BAO to develop a process for making these areas available to leech harvesters. In addition, while there is currently no cultivation of leeches in Ontario, the OMNR and the BAO are exploring the potential for leech culture and the concept is being incorporated into industry training sessions.
  
  These measures will enable the more effective use of provincial bait harvest areas and perhaps the development of leech growing operations, allowing commercial bait licence holders to invest in maximizing domestic leech production. As the industry adjusts, the supply and demand for leeches will stabilize as will leech prices.
  
  
• Approximately 140 commercial bait licence holders will lose a portion of their income, which for some is significant and leech prices will rise without the import of cheaper US leeches.
  
  With the efforts underway to develop unused bait harvest areas, to maximize the use of existing areas and to possibly develop leech growing operations, it is expected that bait industry revenues from domestic leech sales will increase after a short term reduction. Normal market supply and demand will stabilize domestic leech prices over time.
  
  
• Do not proceed with the ban until Ontario bait harvesters can be trained to harvest Ontario leeches to meet the demand.
  
  To mitigate the above concerns brought forward in response to the EBR posting, the OMNR decided to delay implementation of the prohibition until January 2005. This was done so that the OMNR could further assist commercial bait licence holders in developing and delivering training programs to teach harvesters methods of harvesting, handling and transporting domestic leeches. This will aid in redirecting the leech industry in Ontario to the harvest and sale of domestic leeches. Twelve courses have been held across Ontario from June to August 2004, which were delivered by the BAO on behalf of the OMNR.
  
• Allow the import of leeches from "certified" facilities.
  
  As noted above in the Alternatives section, the development of a certification process for non-domestic leech production facilities was not considered as a realistic option to an import prohibition.
  
  
• There is little documented proof that the import of leeches represents a risk of invasive species introductions and research should be conducted to determine the risk of invasive species being introduced by importing leeches.
  
  It is believed that at least 13 fish species have been unintentionally introduced into Ontario through the use of live bait. Species introduced from overseas are more readily identified as invasive and consequently are more often documented than species introduced from other North American waters. This is particularly true for invertebrates such as leeches and crayfish. However, the extent of the problem is probably far greater than has been realized. And while there is no clear scientific evidence that invasive species have yet been introduced via live leech importation, it has been demonstrated repeatedly that non-native species have the ability to adapt and survive in inhospitable conditions to later thrive and supercede native populations. Better to err on the side of caution and prohibit live leech importation than deal with the environmental and economic consequences after the fact.
  
  Despite the concerns raised during consultations on these proposed amendments and the impact the amendments may have on industry, the OMNR must take responsible action to minimize the significant negative environmental and economic impacts posed by these invasive species. A precautionary approach to safeguarding Ontario's aquatic ecosystems is preferable to gambling that the introduction and spread of invasive species, diseases or pathogens will not occur. Pre-publication of these proposed amendments will provide an additional opportunity for comment.

Comments received following pre-publication of the Regulations in the Canada Gazette, Part I

Comments were received from nine sources during the 30-day comment period after the proposed Regulations were published in the Canada Gazette, Part I, on May 6, 2005.

The majority of comments indicated the need for an exemption to provide for scientific research on the listed invasive species because a prohibition on the possession of the listed species would stop valuable research on these invasive species in Ontario. Research is being conducted on the ecology and behaviour of invasives, their negative effects on other aquatic species and possible mitigation and control measures.

It is not in the best interest of Canadians to stop scientific research on invasive species as it may lead to measures that will prevent their introduction or remediate already affected areas. The OMNR have considered the issue and agree that research on invasives is in the best interest of Ontario. Therefore, the Regulations have been amended to allow the Minister of Natural Resources to authorize facilities to conduct research on specified live invasives. These facilities will be required to have measures in place that will prevent escape of these species into Ontario waters. This will ensure that potentially beneficial research can continue in Ontario.

The OMNR has consulted with research facilities on the new authorization requirements. The facilities concur that the requirements are necessary and reasonable.

Comments were also received in support of the proposed leech ban but requesting further delays in implementation to provide for the bait industry to develop a domestic supply of leeches. The Ministry of Natural Resources has already delayed implementation of the ban since first announcing the intention to put it into place in 1999 to enable the bait industry to respond to an increased demand for Ontario leeches. Also, the Ministry has worked with the BAO to put on leech training courses across the province to train new harvesters. The Ministry of Natural Resources is also reviewing bait harvest area allocation procedures to ensure that more areas are utilized for leech harvesting. The Ministry does not believe it would be in the best interests of the industry to delay implementation further. The ban was expected to come into effect by January 1, 2005 and many members of the bait industry have already invested time and resources into meeting the increased demand for Ontario leeches and may suffer economic loses should the ban be delayed any further.

Compliance and Enforcement

Once amendments are approved, the public and affected stakeholders will be informed of the regulatory changes via press releases, announcements in the media and letters to specific stakeholders. Information about the regulations is also available on the Ministry's Internet site, which is updated regularly. A notice will be sent to importers of live fish, bait dealers, tourism operators and the aquarium/water garden industry notifying them of the restrictions. The Fisheries Guide already includes information on invasive species, what to do if you catch them, and how to avoid transporting them. The 2007 Guide will be updated to reflect this prohibition.

Compliance and enforcement efforts are planned and scheduled annually in District Compliance Plans. These efforts include promotion and education, patrols of popular fishing areas and, where appropriate, can include the issuance of warnings or tickets with prescribed fines, or the laying of charges under the Fisheries Act. Penalties under the Fisheries Act, upon conviction for a contravention of these Regulations, can include imprisonment for up to 24 months and fines of up to $500,000. The courts can also order forfeiture of fishing gear, catch, vessels or other equipment used in the commission of an offence. License suspension or cancellation may also be imposed. These OFR amendments involve no new enforcement costs.

Prohibiting Possession of Invasive Fish Species

Compliance with the new invasive species prohibitions will be ensured via the routine inspections of live fish markets and pet shops that are part of current enforcement of existing provincial and federal regulations. These inspections are also used to collect information about the species and quantities of live fish sold in these enterprises so as to provide data for future fisheries management and conservation decisions.

Discussions of the Great Lakes Law Enforcement Committee (comprised of representatives from US and Canadian Law Enforcement Agencies bordering the Great Lakes) support joint enforcement at border crossings to detect illegal shipments of carp species. This activity will be mutually beneficial given transport restrictions on carp in Great Lakes states.

Prohibiting Importation of Live Leeches

Enforcement procedures were established at all Ontario border points when the non-commercial importation of live leeches was restricted in 1999. Once the proposed commercial import prohibition on live leeches is approved, the OMNR will advise Canada Border Services of the changes and border enforcement procedures will be adjusted accordingly. In addition, border checks for live leeches will be coordinated with the carp enforcement activity of the Great Lakes Law Enforcement Committee. Also, with the approval of the proposed live leech import prohibition, all live leach imports will be banned and shipments into Ontario should no longer occur, making border enforcement easier.

The commercial bait industry in Ontario is fully aware of the proposal and will be informed when the prohibition is approved. The provincial regulations (O.Reg. 664/98), under Ontario's Fish and Wildlife Conservation Act, require commercial bait licence holders to keep log books records of all purchases and sales of bait, including leeches. The log books are checked as part of routine enforcement activities.

Contacts

Cameron Mack
Director
Fish and Wildlife Branch
Ontario Ministry of Natural Resources
P.O. Box 7000
Peterborough, Ontario
K9J 8M5
Telephone: (705) 755-1909
FAX: (705) 755-1845

Michelle Dyck
Policy Analyst
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: (613) 991-0493
FAX: (613) 990-2811

Footnote a

S.C. 1991, c. 1, s. 12

Footnote 1

SOR/89-93

Footnote 2

RNT Consulting Inc., Environmental and Economic Costs of Alien Invasive Species in Canada, page 20, March 26, 2002 (accessed June 27, 2005) http://www.cise-scie.ca/english/library/bg_papers/biodiversity/
enviro_economic_costs_alien_invasive_species/Invasives.pdf

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