Federal Fisheries Regulation
This document lays out the basics of the fisheries regulations (under the 2012 Fisheries Act) and how they are applied (as per the 2013 Fisheries Protection Policy Statement). In British Columbia, fisheries protection falls under federal, provincial and municipal legislation. However, the primary regulator is the Department of Fisheries and Oceans (DFO) who is mandated, under the federal Fisheries Act, with the protection of both freshwater and marine fisheries throughout Canada. The 2012 changes to the Fisheries Act have redefined the Act to specifically provide protection to commercial, recreational and aboriginal fisheries values. The main principals have changed from “habitat alteration, disturbance or destruction (HADD)” to focuses on activity that would result in “serious harm to fish”. The Fisheries Act still regulates fish and fish habitat in lakes, rivers, creeks, and marine areas around the province. It also provides protection to riparian zones, foreshore areas, beaches, marshes, and wetlands that directly or indirectly provide habitat for fish. This also includes forage fish and nutrient values that contribute to downstream fisheries habitat. The definition of fish under the Fisheries Act includes all fish, shellfish, crustaceans, marine animals and any parts of fish, shellfish, crustaceans or marine animals, including the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals, that are part of or support commercial, recreational or aboriginal fisheries. The protection of the fisheries is mandated under the following sections of the Fisheries Act:
- Section 20 and 21 identify that fish passage must be provided around obstructions and allows the DFO to request studies to evaluate the potential impacts;
- Section 22 and 22.2 require that a minimum flow be maintained to preserve fish habitat and allow the upstream and downstream passage of fish;
- Section 22.1 requires that fish passage must be maintained during a Project’s construction;
- Section 32 prohibits the unauthorized killing of fish other than by fishing;
- Section 35.1 has been updated to prohibit serious harm to fish that are part of or support commercial, recreational or aboriginal fisheries. This includes the killing of fish and the permanent alteration of fish habitat (spawning, rearing, foraging or overwintering areas) as well as their food supplies;
- Section 35.2 indicates that only DFO has the authority to authorize serious harm to fish or fish habitat; serious harm is defined as:
- The death of fish;
- The permanent alteration of fish habitat; and
- The destruction of fish habitat.
- Section 36 prohibits the dumping of deleterious substances (including sedimentation of water) into fish habitat;
- Section 37 allows the ministry to request plans, specifications and studies to determine if deposited substance is deleterious, or if a serious harm will occur as a result of a project;
- Section 37.1 empowers the ministry to ask for additional work, or restrict the operation of work, and/or stop works altogether, to avoid the deposition of deleterious substances into or to prevent a serious harm to fish habitat; and
Section 38 states that there is a duty to notify a DFO inspector when serious harm to fish has occurred that is not authorised under the Act.
“DFO Operational Statements (no longer apply)”
Federal Permitting Process
As part of DFO’s 2013 Policy Statement, DFO has developed a self-evaluation process to determine if your project will cause serious harm to fish and therefore will require an authorization. If your answer is ‘No’ to all three questions (below), DFO indicates that no Authorisation is required:
- Are there potential impacts to fish or fish habitat that are part of, or support a commercial, recreational and Aboriginal fishery?
- Impacts to fish or fish habitat can not be avoided or mitigated?
- Will impacts result in serious harm to fish?
If you are unsure whether your project has the potential to cause serious harm, to fish, then a project review application should be submitted to the DFO Referral Centre prior to the commencement of any work.
“If there is a potential for fisheries impacts, a request for review should be submitted to DFO”.
If DFO believes that the project will cause serious harm to fish, then a formal application for Fisheries Act Authorization will be required. Your application for a Fisheries Act Authorization will take three weeks to review, although no application fee is required. The Authorization process will require the collection of additional information about the extent of the project’s impacts including:
- An Aquatic Effects Assessment;
- Offsetting Requirements; and
- Monitoring Plans.
If DFO believes that the project will not cause serious harm to fish, they will send you a Letter of Advice, indicating mitigation and/or compensation measures required to proceed. The Authorization process involves extensive time and effort by both the proponent and DFO that may not be necessary if your project can be designed to avoid serious harm to fish. Many impacts can be mitigated to reduce the time and cost of the project authorization.
Under the 2013 Policy Statement, DFO relies heavily on Professional judgement. Seek expert advice on developing mitigation, best management practices and permitting requirements before you begin any work. It is the proponent’s responsibility to determine whether their projects require an authorization and, if so, to apply for the authorization.
Copyright John Black 2014. All rights reserved.