Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to paragraphs 43(1)(i.11) a, (i.2) a, (i.4) a, (i.6) a and (i.8) a of the Fisheries Act b, makes the annexed Authorizations Concerning Fish and Fish Habitat Protection Regulations. S.C. 2019, c. 14, s. 31(6) R.S., c. F-14
Definitions
The following definitions apply in these Regulations.
Act means the Fisheries Act. (Loi )
DFO technical standards means a document, as amended from time to time, of a technical or explanatory nature that is published by the Department of Fisheries and Oceans and that provides measures to avoid the death of fish or to mitigate the extent of their death and to avoid or mitigate the harmful alteration, disruption or destruction of fish habitat. (normes techniques du MPO)
existing facility means a structure constructed prior to July 14, 1977, and located wholly or partially in fish habitat. (installation existante)
municipality means an incorporated city, town, village, metropolitan authority, township, district, county or rural municipality or other incorporated municipal body however designated. (municipalité)
Authorizations
The Minister may, on application, issue an authorization referred to in paragraph 34.4(2)(b) or 35(2)(b) of the Act.
Subject to subsection (2), an application in respect of one or more works, undertakings or activities must be made to the Minister in writing and include
the information and documents set out in Part 1 of Schedule 1; and
the information and documents set out in Part 2 of Schedule 1.
An application in respect of one or more works, undertakings or activities in relation to the operations of an existing facility must be made to the Minister in writing and include
the information and documents set out in Part 1 of Schedule 3; and
the information and documents set out in Part 2 of Schedule 3.
Despite subsection (1), an application in respect of one or more works, undertakings or activities need not contain the information and documents referred to in paragraph (1)(b) with respect to any work, undertaking or activity for which the applicant confirms in writing that the applicable chapter of the DFO technical standards will be followed.
Despite subsection (2), an application in respect of one or more works, undertakings or activities in relation to the operations of an existing facility need not contain the information and documents referred to in paragraph (2)(b) with respect to any work, undertaking or activity for which the applicant confirms in writing that the applicable chapter of the DFO technical standards will be followed.
Only the information set out in Schedule 2 must be provided to the Minister in support of an application in respect of one or more works, undertakings or activities that need to be carried on without delay in response to the following situations:
a matter of national security;
a national emergency for which special temporary measures are taken under the Emergencies Act; or
an emergency that poses a risk to public health or safety, the environment or property.
Processing of Non-Emergency Applications
This section applies to applications referred to in section 2.1.
The Minister must, on receipt of an application, send to the applicant a confirmation of receipt that indicates the date of receipt.
For the purposes of subparagraphs (3)(b)(i) and (c)(i), the Minister must conduct a risk assessment in respect of an application for authorization in order to determine whether offsetting the death of fish or the harmful alteration, disruption or destruction of fish habitat is required.
further to a risk assessment that was conducted by the Minister, offsetting the death of fish or the harmful alteration, disruption or destruction of fish habitat is not required, and
if applicable, the Minister considers that consultations are required; or
further to a risk assessment that was conducted by the Minister, offsetting the death of fish or the harmful alteration, disruption or destruction of fish habitat is required and the following must be provided:
the information and documents set out in Part 3 of Schedule 1, if the application is in respect of one or more works, undertakings or activities,
the information and documents set out in Part 3 of Schedule 3, if the application is in respect of one or more works, undertakings or activities in relation to the operations of an existing facility, and
an irrevocable letter of credit issued by a recognized Canadian financial institution or another equivalent financial guarantee, including a performance bond, to cover the costs of implementing the offsetting plan referred to in Part 3 of Schedule 1 or Part 3 of Schedule 3, and
if applicable, the Minister considers that consultations are required.
Clause (3)(c)(i)(C) does not apply if the applicant is His Majesty in right of Canada or of a province, the government of a territory, a municipality or an Indigenous governing body.
The Minister must, on receipt of all of the information or documents set out in the notification referred to in paragraph (3)(a), send to the applicant a confirmation of receipt that indicates the date of receipt.
Once the confirmation of receipt is sent, subsection (3) applies to the application again, except that the period begins on the date indicated in the confirmation of receipt.
If the application is adequate with respect to the information and documents referred to in subsection 2.1(1) or (2) and those referred to in subparagraph (3)(c)(i), if applicable, and the consultations referred to in subparagraph (3)(b)(ii) or (c)(ii), if applicable, have been conducted, the Minister must notify the applicant in writing to that effect.
the applicant proposes amendments to their application;
the applicant requests in writing that the processing of the application be suspended;
circumstances require that relevant information or documents other than those referred to in subsection 2.1(1) or (2) and subparagraph (3)(c)(i), if applicable, be obtained or that amendments to the information or documents submitted by the applicant be made before the Minister makes their decision under subsection (5);
the Minister considers that consultations are required before they make their decision under subsection (5); or
an Act of Parliament, a regulation made under an Act of Parliament or a land claims agreement provides that a decision be made or that conditions be met before the Minister makes their decision under subsection (5).
If a time limit ceases to apply, the Minister must notify the applicant in writing and, if it ceases to apply for a reason set out in any of paragraphs (6)(c), (d) and (e), inform the applicant of the reason and, if applicable, the information or documents that must be submitted.
all information or documents in support of the proposed amendments have been received, in the case referred to in paragraph (6)(a);
the Minister receives a request in writing that the processing of the application be resumed, in the case referred to in paragraph 6(b);
the information or documents referred to in paragraph (6)(c) have been obtained or amended;
the consultations referred to in paragraph (6)(d) have been conducted;
the decision has been made or the conditions have been met, in the case referred to in paragraph (6)(e).
Amendment, Suspension or Cancellation of Authorization
The holder of any authorization may request that the authorization be amended. The request must be submitted to the Minister in writing and include
the file numbers indicated on the original authorization;
a description of the amendment;
the updated information and documents set out in Schedule 1, 2 or 3 that are necessary to support the request; and
a description of the likely effects of the amendment on fish and fish habitat, if not otherwise submitted under paragraph (c).
The holder of any authorization may request that the authorization be suspended in whole or in part. The request must be submitted to the Minister in writing and include
the file numbers indicated on the original authorization;
the period of suspension requested, if any;
the reason for requesting the suspension; and
a description of the likely effects of the suspension on fish and fish habitat.
The holder of any authorization may request that the authorization be cancelled. The request must be submitted to the Minister in writing and include
the file numbers indicated on the original authorization;
the requested cancellation date;
the reason for requesting the cancellation; and
a description of the likely effects of the cancellation on fish and fish habitat.
The Minister must, on receipt of all of the information or documents set out in the notification referred to in paragraph (2)(a), send to the authorization holder a confirmation of receipt that indicates the date of receipt.
Once the confirmation of receipt is sent, subsection (2) applies to the request again, except that the period begins on the date indicated in the confirmation of receipt.
the authorization holder proposes amendments to the request to amend, suspend or cancel;
the authorization holder requests in writing that the processing of the request be suspended;
the Minister considers that consultations are required before they make their decision under subsection (4); or
an Act of Parliament, a regulation made under an Act of Parliament or a land claims agreement provides that a decision be made or that conditions be met before the Minister makes their decision under subsection (4).
If the time limit ceases to apply, the Minister must notify the authorization holder in writing and, if it ceases to apply for a reason set out in any of paragraphs (5)(c), (d) and (e), inform the authorization holder of the reason and, if applicable, the information or documents that must be submitted.
all information or documents in support of the proposed amendments have been received, in the case referred to in paragraph (5)(a);
the Minister receives a request in writing that the processing of the request be resumed, in the case referred to in paragraph 5(b);
the information or documents referred to in paragraph (5)(c) have been obtained or amended;
the consultations referred to in paragraph (5)(d) have been conducted;
the decision has been made or the conditions have been met, in the case referred to in paragraph (5)(e).
The Minister may, on the Minister’s own initiative, amend or suspend, in whole or in part, or cancel any authorization if
the Minister has reasonable grounds to believe that the conditions established by the Minister in the authorization have not been or will not be met;
the Minister has reasonable grounds to believe that the authorization was obtained by fraudulent or improper means or by the misrepresentation of a material fact;
the Minister becomes aware of new information that demonstrates that
the death of fish or the harmful alteration, disruption or destruction of fish habitat is or will be different than anticipated by the Minister at the time of issuance of the authorization, or
the avoidance, mitigation or offsetting measures set out in the conditions, if applicable, are not achieving the outcomes anticipated by the Minister at the time of issuance of the authorization; or
the authorization holder has not paid a fine imposed on them under the Act.
If the Minister intends to amend or suspend, in whole or in part, or cancel the authorization, the Minister must notify the authorization holder in writing of this intention and give the authorization holder an opportunity to make written representations.
Despite subsection (2), the Minister may suspend an authorization, in whole or in part, without giving the authorization holder an opportunity to make written representations if the suspension is required to prevent the imminent death of fish or the imminent harmful alteration, disruption or destruction of fish habitat.
If the authorization is amended or suspended, in whole or in part, or cancelled by the Minister, the Minister must notify the authorization holder in writing of the amendment, suspension or cancellation, its effective date and, in the case of a suspension, the duration.
The Minister may reinstate the authorization at the expiry of the period indicated in the notice of suspension or, on written request, at any time during the suspension if the matter that gave rise to the suspension has been resolved or corrected. The Minister may require the authorization holder to submit a request for amendment in order to reinstate the authorization.
The Minister, on their own initiative, may amend, in whole or in part, any authorization if they become aware of new information that demonstrates that further action is necessary to avoid, mitigate or offset the death of fish or the harmful alteration, disruption or destruction of fish habitat.
[Repealed]
[Repealed]
Coming into Force
These Regulations come into force on the day on which section 22 of An Act to amend the Fisheries Act and other Acts in consequence comes into force, but if they are registered after that day, they come into force on the day on which they are registered.[Note: Regulations in force August 28, 2019, see SI/2019-80.]
Information and Documents to Be Provided
Contact Information
The name, address, email address and telephone number of the applicant and, if applicable, their representative.
Description of Proposed Work, Undertaking or Activity
A description of each proposed work, undertaking or activity and, if applicable, a description of the project that the proposed work, undertaking or activity is a part of, including
the purpose of the proposed work, undertaking or activity and, if applicable, the project;
the associated infrastructure;
any associated permanent or temporary structure; and
the construction methods, building materials, explosives, machinery and other equipment that will be used.
If physical works are proposed, the area, in square metres, of those works and, for works in or near water, the project engineering specifications, scale drawings and dimensional drawings.
Phases, Schedule and Duration
A description of the phases, schedule and expected duration of the proposed work, undertaking or activity and, if applicable, a description, schedule and expected duration of the project that the proposed work, undertaking or activity is a part of.
Location
A description of the location of the proposed work, undertaking or activity and, if applicable, of the location of the project that the proposed work, undertaking or activity is a part of, including
geographic coordinates;
a small-scale site plan identifying the general location and boundaries;
a large-scale site plan indicating the size of the planned facilities, infrastructure and any related components and their spatial relationship to any existing structures, landmarks, water sources, water bodies or other geographic features; and
the name of any watersheds, water sources and water bodies that are likely to be affected and the geographic coordinates of the water sources and water bodies.
The name of the community nearest to the location and the name of the county, district or region and the province or territory where the proposed work, undertaking or activity will be carried on.
Fish and Fish Habitat
A description of the fish and fish habitat found at the location of the proposed work, undertaking or activity and within the area likely to be affected by the proposed work, undertaking or activity, including
the type of water source or water body;
the characteristics of the fish habitat and how those characteristics directly or indirectly support fish in carrying out their life processes;
date-stamped photographs that clearly indicate the habitat characteristics that are likely to be affected by the proposed work, undertaking or activity;
the fish species that are present and, if available, an estimate of the abundance of those species; and
Effects on Fish and Fish Habitat
A description of the likely effects of the proposed work, undertaking or activity on fish and fish habitat. The description must include
the fish species that are likely to be affected and the life stages of the individuals of those species;
the type and extent of fish habitat that is likely to be affected;
the probability, severity, geographic extent and duration of the likely effects on fish and fish habitat; and
A description of
how the effects referred to in subsection (1) are likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat; and
the extent of the death of fish or the harmful alteration, disruption or destruction of fish habitat.
Measures and Standards
A description of the measures and standards that will be implemented, including an analysis of the expected effectiveness of those measures and standards, to
avoid the death of fish or to mitigate the extent of their death; and
avoid or mitigate the harmful alteration, disruption or destruction of fish habitat.
A description of the monitoring measures that will be implemented to assess the effectiveness of the measures and standards referred to in section 9.
A description of the death of fish referred to in subsection 8(2) after the measures and standards referred to in paragraph 9(a) are implemented.
A description of the harmful alteration, disruption or destruction of fish habitat referred to in subsection 8(2) after the measures and standards referred to in paragraph 9(b) are implemented.
Engagement
A list of the Indigenous groups that may be affected by the carrying on of the work, undertaking or activity, a summary of any engagement undertaken with the Indigenous peoples of Canada, including a summary of key issues raised and the results of the engagement, and a brief description of any plan for future engagement.
Habitat Credit
The number of habitat credits that the applicant plans to use to offset the death of fish referred to in section 11 and the harmful alteration, disruption or destruction of fish habitat referred to in section 12, as well as the number of any certificate referred to in paragraph 42.02(1)(b) of the Act.
Offsetting Plan
A description of a plan to offset the death of fish referred to in section 11 and the harmful alteration, disruption or destruction of fish habitat referred to in section 12 that were not offset by the habitat credits referred to in section 14, including
the geographic coordinates of the location where offsetting measures will be implemented;
a small-scale site plan identifying the general location and boundaries of the location where the offsetting measures will be implemented;
a description of the offsetting measures and how those measures will meet their objectives;
a description of the monitoring measures that will be implemented to assess the effectiveness of the measures referred to in paragraph (c);
a description of any harmful effects on fish and fish habitat that could result from the implementation of the plan;
a description of the measures and standards that will be implemented to avoid or mitigate the harmful effects and how those measures will meet their objectives;
the timeline for the implementation of the plan;
an estimate of the cost of implementing each element of the plan; and
if the implementation of the plan requires access to lands, water sources or water bodies that are not owned by the applicant, a description of the steps that are proposed to be taken to obtain the authorization required for the applicant, the Department of Fisheries and Oceans and anyone authorized to act on that Department’s behalf to access the lands, water sources or water bodies in question. This information is not required if the applicant is His Majesty in right of Canada or of a province or the government of a territory.
Information to Be Provided — Emergency Situations
The name, address, email address and telephone number of the applicant and, if applicable, their representative.
The timeline for carrying on the proposed work, undertaking or activity.
A description of the location of the proposed work, undertaking or activity, including its geographic coordinates and the name of any water sources and water bodies that are likely to be affected.
A description of the death of fish and the harmful alteration, disruption or destruction of fish habitat that are likely to result from the proposed work, undertaking or activity.
Information and Documents To Be Provided — Existing Facilities
Contact Information
The name, address, email address and telephone number of the applicant and, if applicable, their representative.
Description of Existing Facility and Works, Undertakings or Activities
A description of the existing facility and its operations, including its
associated infrastructure and design;
operating conditions; and
routine maintenance requirements and schedule.
A description of each work, undertaking or activity in relation to the operations of the existing facility, including the purpose of the work, undertaking or activity.
The engineering specifications, scale drawings and dimensional drawings of the existing facility and the operating plans and details of any fishways.
Location
A description of the location of the existing facility, including
its geographic coordinates;
a small-scale site plan identifying its general location and boundaries;
a large-scale site plan indicating the size of the existing facility, infrastructure and any related components and their spatial relationship to any other structures, landmarks, water sources, water bodies or other geographic features; and
the name of any watersheds, water sources and water bodies that are affected and the geographic coordinates of the water sources and water bodies.
The name of the community nearest to the location and the name of the county, district or region and the province or territory in which the existing facility is located.
Fish and Fish Habitat
A description of the fish and fish habitat found at the location of the existing facility, including
the type of water source or water body;
the characteristics of the fish habitat and how those characteristics directly or indirectly support fish in carrying out their life processes;
date-stamped photographs that clearly indicate the habitat characteristics that are affected by the operations of the existing facility;
the fish species that are present and, if available, an estimate of the abundance of those species; and
Effects on Fish and Fish Habitat
A description of the effects of the operations of the existing facility on fish and fish habitat. The description must include
the fish species that are affected and the life stages of the individuals of those species;
the type and extent of fish habitat that is affected;
the probability, severity, geographic extent and duration of the effects on fish and fish habitat; and
A description of
how the effects referred to in subsection (1) result in the death of fish or the harmful alteration, disruption or destruction of fish habitat; and
the extent of the death of fish or the harmful alteration, disruption or destruction of fish habitat.
Measures and Standards
A description of the measures and standards, including an analysis of the expected effectiveness of those measures and standards, to
avoid the death of fish or to mitigate the extent of their death; and
avoid or mitigate the harmful alteration, disruption or destruction of fish habitat.
A description of the monitoring measures for assessing the effectiveness of the measures and standards referred to in section 8.
A description of the death of fish referred to in subsection 7(2) after the measures and standards referred to in paragraph 8(a) are implemented.
A description of the harmful alteration, disruption or destruction of fish habitat referred to in subsection 7(2) after the measures and standards referred to in paragraph 8(b) are implemented.
Engagement
A list of the Indigenous groups that may be affected by the carrying on of the work, undertaking or activity, a summary of any engagement undertaken with the Indigenous peoples of Canada, including a summary of key issues raised and the results of the engagement, and a brief description of any plan for future engagement.
Habitat Credit
The number of habitat credits that the applicant plans to use to offset the death of fish referred to in section 10 and the harmful alteration, disruption or destruction of fish habitat referred to in section 11, as well as the number of any certificate referred to in paragraph 42.02(1)(b) of the Act.
Offsetting Plan
the geographic coordinates of the location where offsetting measures will be implemented;
a small-scale site plan identifying the general location and boundaries of the location where the offsetting measures will be implemented;
a description of the offsetting measures and how those measures will meet their objectives;
a description of the monitoring measures that will be implemented to assess the effectiveness of the measures referred to in paragraph (c);
a description of any harmful effects on fish and fish habitat that could result from the implementation of the plan;
a description of the measures and standards that will be implemented to avoid or mitigate the harmful effects and how those measures will meet their objectives;
the timeline for the implementation of the plan;
an estimate of the cost of implementing each element of the plan; and
if the implementation of the plan requires access to lands, water sources or water bodies that are not owned by the applicant, a description of the steps that are proposed to be taken to obtain the authorization required for the applicant, the Department of Fisheries and Oceans and anyone authorized to act on that Department’s behalf to access the lands, water sources or water bodies in question. This information is not required if the applicant is His Majesty in right of Canada or of a province or the government of a territory.