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Interpretation of the Fisheries Act and the Resulting Impact on Projects in Canada


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Did You Know?

Since 2019, Fisheries and Oceans Canada (DFO) has been working hard to interpret and apply the various changes made by the Government of Canada, to the federal Fisheries Act.

Prior to 2019, typically only direct impacts to fish and fish habitat were considered during the federal review process, which lead to many indirect impacts to fish and fish habitat to not be identified nor discussed. As a result of the previous Fisheries Act, wetlands were typically only considered during the request for review process, if they provided direct fish habitat (e.g. fish living within the wetland). However, under the current Fisheries Act definition of fish habitat, indirect impacts to fish and fish habitat receive equal consideration, regardless of whether the wetland or waterbody is dry for parts of the year or whether fish are present at the project location.

“fish habitat means water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nursery, rearing, food supply and migration areas; (habitat)”

Fisheries Act, R.S.C., 1985, c. F-14.

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Over the past 12 months, we have seen a steady rise in wetland related inquiries from DFO through casual, informal, and formal conversations on a variety of project types across multiple DFO regions. We have also been proactively engaging with the DFO to continue to refine their interpretation, under many different hypothetical scenarios, to enable us to provide clear direction and recommendations to our clients.

As a result of these changes and the ongoing pandemic, some projects are experiencing significant delays during the DFO review process. To reduce uncertainty around the federal review process and to mitigate environmental and compliance risks to your business, it is important to engage experienced professionals, who can advocate on your behalf and describe any potential impacts your project activities may have on the aquatic environment.

Projects that involve water withdrawals in Canada continue to be under increased scrutiny, especially if they include potential impacts to wetlands that are connected to fish bearing waterbodies. These types of projects (among many others) are still required to be reviewed by DFO, and the process for determining whether a Request for Review is required is further described below.

Who Needs This?

Operators across Canada that:

  • Are proposing a project where the activities have the potential to either directly or indirectly impact fish or fish habitat.
  • Hold water withdrawal licences (short or long term) from a fish bearing waterbody or one that is connected to a waterbody that contains fish at any time during the year.
  • Control water withdrawal intakes or other structures, whether temporary or permanent, below the high-water mark.

Are You Affected?

The revised requirements under the Fisheries Act requires operators to submit their project for review if proponents are unable to implement all measures to protect fish, fish habitat, and avoid affects to an aquatic species at risk. Water withdrawal projects from fish bearing waterbodies or projects that disturb wetlands that are connected to fish habitat are inherently unable to implement all the protective measures and therefore require a review by DFO.

The changes are likely to affect you, if your project has not been reviewed by DFO, since the coming into force of the new Fisheries Act (29 August 2019). The Fisheries Act does not include a provision to grandfather previously reviewed projects.

Punishments for non-compliance include monetary fines and/or imprisonment. An offence that is committed or continued for more than one day is considered a separate offence and could lead to greater punishment.

DFO is currently working with the Provinces to refine review, approval, and enforcement strategies. Enforcement activities are ongoing, however, delays due to COVID-19 are to be anticipated.

If you are unsure, meet with Integrated Sustainability for a free consultation.

DFO Project Review Process

Integrated Sustainability will help you interpret and understand the implications of the 2019 Fisheries Act revisions and can support you throughout the entire project review process. A Request for Review form is a cost-effective first step in having your project reviewed and approved by the DFO.

To get you started, we will provide a list of information requirements to facilitate the completion of the required Request for Review form. Once that information is received, we will complete and submit the Request for Review form to initiate the review process with the DFO.

Other Services and Next Steps

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Integrated Sustainability can support compliance under the Fisheries Act for other projects potentially affected by the 2019 revisions and determine whether a Request for Review form is required for your project. We can assist in managing these new requirements, which are sometimes challenging to understand, in a timely and cost-effective manner.

Integrated Sustainability can also support with preparing additional associated documentation and reporting, which may include:

  • Completing a fish habitat assessment
  • Review and selection of compliant fish screen and water intake designs, to maximize efficiency based on site specific conditions
  • Completing a hydrology assessment and bathymetric survey
  • Completing a wetland assessment (including the determination of connectivity to fish bearing waterbodies)
  • Summarizing project activities
  • Developing mitigation strategies
  • Preparation and submission of water licence applications
  • Responding to supplemental information requests from regulators

Contact us today to have your Request for Review process started. Costs can be as little as $1,500 and can be completed within as little as 1 week.

Robert Best, M.Sc., P.Biol., R.P.Bio.
Senior Aquatic Biologist & Manager, Water Resources
403.618.9314
Robert.Best@IntegratedSustainability.ca
IntegratedSustainability.ca

Tanya Cairns, M.Sc., B.Comm
Director, Science & Consulting Services
403.617.5743
Tanya.Cairns@IntegratedSustainability.ca
IntegratedSustainability.ca



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