CANADIAN WATERS - Infocentre

Habitat Conservation and Protection Guidelines, Second Edition (1998)

Developed from the Policy for the Management of Fish Habitat (1986)

Table of Contents

1.0 DFO's Habitat Management Policy

1.1 Definition of Fish Habitat

2.0 Context of Implementation

2.1 Scope of Application in the Provinces

2.2 Project Scale

2.3 Assessment of Productive Capacity

2.4 Factors to Consider when Assessing Severity of Impacts and Making Harmful Alteration, Disruption, or Destruction (HADD) Determination

2.5 Role of DFO and Responsibility of Proponents

3.0 Options for Habitat Conservation and Protection

3.1 Project Design

3.1.1 Relocation

3.1.2 Redesign

3.2 Mitigation

3.3 Compensation

3.3.1 Habitat Compensation

3.3.2 Artificial Propagation

4.0 Decision Steps to Achieve Habitat Conservation and Protection

Step I - Review of Application From Proponent and/or Governmental Referral

Step II - Project Assessment

Task 1: Assess Potential for Impacts on Fish and Fish Habitat Productive Capacity (HADD Determination)

Task 2: Determine the Required Level of Protection in Relation to Habitat Productive Capacity

Critical Habitat - Requires High Level of Protection

Important Habitat - Requires Moderate Level of Protection

Marginal Habitat - Requires Minimum Level of Protection

Task 3: Assess Revised Project Proposal with Proposed Compensation Measures

Step III - Public Consultation

Step IV: Decision

Step V: Audit

Step VI: Enforcement

5.0 Supporting Material

5.1 Documentation

5.2 Habitat Compensation Agreements

References

List of Figures

Figure 1: A decision framework for the determination and authorization of harmful alteration, disruption or destruction of fish habitat

Figure 2: Options for habitat conservation and protection

1.0 - DFO'S Habitat Management Policy

Under the authority of the Fisheries Act, the Department of Fisheries and Oceans (DFO) has decision-making authority for the conservation and protection of fish and fish habitat supporting Canadian fisheries. Despite their prohibitive nature, the fish and fish habitat protection provisions of the Fisheries Act do provide mechanisms to allow development projects to occur while providing for the protection of fish and fish habitat. Section 35 of the Act, which prohibits the harmful alteration, disruption or destruction (HADD) of fish habitat, provides the Minister with the power to authorize terms and conditions which would allow projects to proceed in compliance with the Act. The Policy for the Management of Fish Habitat (1986) provides policy direction for interpreting the broad powers mandated in the Act in a way, which is consistent with the concept of sustainable development.

The purpose of this document is to guide DFO staff in administering the habitat provisions of the Fisheries Act. It outlines a standard approach to habitat conservation and protection through the application of the No Net Loss (NNL) Guiding Principle contained in the Policy for the Management of Fish Habitat.

The long-term policy objective of the Department is to achieve an overall Net Gain in the productive capacity of fish habitats. A fundamental strategy for achieving this is to prevent further erosion of the productive capacity of existing habitat by applying the No Net Loss Guiding Principle to habitat management decisions related to the review of proposed works and undertaking. Under this guiding principle, DFO works with developers or provincial agencies so that projects are designed in a way that maintains the fish habitat's productive capacity. In cases where this is not possible, unavoidable losses in habitat productive capacity are compensated by habitat replacement or enhancement on a case-by-case basis.

The Policy's broad objective of Net Gain in habitat productive capacity is accomplished through habitat conservation, restoration and development. This document focuses on the application of the No Net Loss Guiding Principle and therefore addresses the habitat conservation and protection aspects of the Policy.

1.1 Definition of Fish Habitat

Under the Fisheries Act (Section 34), fish habitat is defined as:

"spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes."

and the definition of fish in the Act (Section 2) includes:

shellfish, crustaceans, marine animals, the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.

Fish habitat therefore refers to:

freshwater, estuarine and marine environments that directly or indirectly support fish stocks or fish populations that sustain, or have the potential to sustain, subsistence, commercial or recreational fishing activities.

These Guidelines are applied to habitat which:

• currently produces fish that are harvested in a subsistence, commercial or recreational fishery;
  
  
• although not directly supporting fish, provides nutrients and/or food supply to adjacent or downstream habitat or contribute to water quality for fish;
  
  
• could sustain a new fishery in the future; and,
  
  
• has been identified by DFO or a provincial fisheries agency as a candidate for enhancement.

These Guidelines are also used to protect habitats that support fisheries which may be limited but are important for other reasons. For example, rivers that flow through urban centres can offer important recreational fishing opportunities even if they are somewhat degraded.

2.0 - Context of Implementation

When a project proposal is referred to DFO (either directly by the proponent, a provincial agency or by third parties), DFO staff will assess the potential impacts of the project on fish habitat productive capacity in order to determine whether it will result in a habitat harmful alteration, disruption or destruction (HADD).

In cases where it is determined that the project will negatively impact on fish habitat productive capacity, DFO staff will assess the effectiveness of any mitigative measures proposed by the proponent to prevent HADD, as well as the effectiveness of proposed habitat compensation measures in situations where residual impacts lead to HADD. It is the responsibility of the proponent to develop the project description, identify anticipated impacts on fish habitat and provide for mitigation and compensation measures. When necessary, however, staff may work with the proponent to determine appropriate mitigation and compensation measures.

Communication and consultation between DFO and proponents are the key to success. Proponents should be notified by DFO, or the responsible provincial agency, of the assessment decision which may reflect, when required, the mechanisms provided in the Fisheries Act to protect fish habitat, such as a Section 35(2) authorization. In such cases, DFO will develop, in cooperation with provincial, territorial and/or other federal agencies where required, terms and conditions for project implementation.

2.1 Scope of Application in the Provinces

The purpose of these Guidelines is to assist DFO staff in applying the Policy for the Management of Fish Habitat to projects that could affect fish habitat productive capacity in a fair, consistent and predictable manner across Canada. Where provinces are involved in fish habitat management, DFO will work with the appropriate agencies to ensure that provincial staff also make decisions in a manner consistent with these guidelines.

2.2 Project Scale

These Guidelines are applied on a project-by-project basis, with each project proposal considered on its own merits, taking into account its proposed mitigation and habitat compensation measures. Cumulative or incremental environmental effects can, however, build up with a number of projects in a given watershed or area, and this must also be taken into account.

2.3 Assessment of Productive Capacity

Productive capacity is the measure of the capability of a habitat to produce fish and/or food organisms in natural or restored conditions. Productive capacity is analogous to carrying capacity, which can be defined as the maximum biomass of organisms that can be sustained on a long-term basis by a given habitat. The terms "maximum" and "long-term" are important to the definition and must be kept in mind when evaluating project proposals with the potential to affect fish habitat productive capacity.

The determination of productive capacity involves more than the assessment of either the number of fish utilizing a given habitat at one specific time or the current level of fisheries production from the habitat. The concept of productive capacity encompasses cyclical variations in habitat utilization as well as cycles in fish production. In addition, it is possible that a given habitat may have the capacity to produce a certain number of fish but is not producing that number because other factors (e.g. obstructions to spawning runs; overharvesting; natural phenomena) are reducing the number of fish able to exploit the habitat. The objective of the No Net Loss Principle is to maintain the long-term productive capacity so that when more fish are able to exploit the habitat the productive capacity will be sufficient to support them.

Typically, habitat lost through project development or created through compensation is assessed and described according to physical parameters (e.g. area or volume of habitat; littoral zone; mudflat; saltmarsh; gravel bed) combined with a biological classification (e.g. spawning grounds and nursery, rearing, food supply and migration areas). It may be that physical and biological descriptors are all that are available and that these will have to be used as surrogate measures to assist in defining productive capacity until ongoing research provides more precise tools.

2.4 Factors to Consider when Assessing Severity of Impacts And Making Harmful Alteration Disruption or Destruction (HADD) Determination

In determining the severity of potential impacts (HADD) of projects on fish and fish habitat, the factors that DFO takes into consideration include:

• the potential for the project to affect fish, fish habitat and/or people's use of fish as well as the nature of the effect (e.g. physical disturbance, temperature change, flow alteration, release of nutrients or contaminants, reduction in dissolved oxygen, obstruction of fish migration, alteration of oceanographic or limnological regime);
• the presence or abundance of a fish species which is actively, or has the potential to be, harvested in a subsistence, commercial and/or recreational fishery;
• whether the species (or fish population) at risk is considered as vulnerable in the context of the proposed project;
• the productive capacity (or surrogate habitat value) of the habitat and/or the degree to which it supports an important lifecycle process (e.g. spawning grounds and nursery, rearing, food supply and migration areas); the availability and anticipated effectiveness of mitigation and/or habitat compensation measures;
• proportion of the habitat with a similar productive capacity and contribution to the fish stock which may be affected;
• the habitat's resilience to damage and the amount of time it would need to recover; and,
• all other factors staff deem important to consider on a project specific basis.

Assessing severity of impacts of a project on fish habitat and making a HADD determination is the most important step in the process of achieving NNL. This step must be well documented. Figure 1 presents a flowchart outlining the process leading to a HADD determination. This flowchart is extracted from the Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat document, which provides habitat analysts and managers with a practical and nationally consistent HADD determination approach.

2.5 Role of DFO and Responsibility of Proponents

The following principles will guide DFO staff in considering project proposals:

• When feasible, DFO advise proponents as early as possible in the project planning process of their responsibilities under the habitat provisions of the Fisheries Act.
• Proponents are responsible for all aspects of the proposed projects including, provision of appropriate information on fish, fish habitat and fisheries and development of appropriate mitigation and compensation measures.
• Any available resource information, such as habitat management plans or habitat classification maps that would likely help proponents identify habitat-related constraints will be used in the assessment process.
• When appropriate, DFO will facilitate consultation with other federal and provincial/territorial environmental agencies to reach consensus on a project proposal before finalizing a mitigation/compensation scheme with a proponent. In particular, consultation may be necessary in evaluating the acceptability of options being considered in the hierarchy of preferred mitigation/compensation options in order to consider the effects on other resources.
• DFO shall assess proposed developments to determine the potential effects on the productive capacity of fish habitat. This assessment can be achieved through a cooperative approach that explores various options to achieve NNL. In situations where acceptable solutions cannot be reached, the project should be referred to more senior personnel in the region according to regional procedures.

3.0 - Options for Habitat Conservation and Protection

If it appears in assessing a project that the current habitat productive capacity cannot be maintained, a series of management options may be considered for habitat conservation and protection - Figure 2. These management options are presented in Figure 2 from the most to the least preferred. If these prove not to be feasible from a technical perspective, then it may be necessary to inform the proponent that the project as presented in the application would have unacceptable impacts on fish habitat.

3.1 Project Design

3.1.1 Relocation

DFO prefers to maintain natural habitat as much as possible because all the factors and processes involved in making a habitat productive are highly complex.

Relocating a project, or specific parts of it, may not be the easiest solution but it is the one DFO normally prefers, especially if the project represents a substantial risk to critical habitats, the habitat's productive capacity is high, or the habitat is particularly important to critical life stages of a fish species. A decision recommending that a project be relocated must be well documented with a supporting rationale. Examples of projects where relocation might be required include moving a bridge downstream to protect a spawning ground or moving a dredged material ocean dumpsite to protect a lobster ground.

3.1.2 Redesign

If relocation is impossible, the next option is to redesign the project. This option is applied when a project represents a risk to critical or important habitats such as those with high productive capacity or those that are critical to certain life stages of a fish species.

Any DFO decision recommending that a project be redesigned must be well documented with a supporting rationale. Redesign measures might include building an open concept pier rather than an infilled structure, modifying the orientation or length of a breakwater, or using a different material in the construction of a wharf.

3.2 Mitigation

Project relocation and/or redesign are not always feasible and, when feasible, they may not be sufficient to completely eliminate impacts on fish habitat productivity. In these situations, mitigative measures have to be implemented during project's planning, design, construction and/or operation, mostly when critical or important habitat are threaten. Mitigative measures are also applied to protect marginal habitat where required. It is the responsibility of proponents to prepare mitigation plans. DFO staff may provide advice during the development of mitigative measures but it must be made clear that responsibility for the effectiveness of those measures rests with the proponent.

The applicability of mitigation measures is environment and resource specific, and may vary from region to region. The most commonly used mitigation measures include:

• defining timing windows for work in streams, estuaries, etc. to minimize interference with fish migration and spawning;
• re-arranging or compressing the work schedule to finish the job sooner;
• selecting the least harmful equipment/materials/construction methods;
• ensuring fish passage around obstructions during and after construction;
• ensuring minimum instream flow rates during construction of works necessitating obstruction of flows ( ex: dams, culverts, etc);
• implementing measures to control siltation at construction sites; or
• a combination of such measures.

Guideline documents, developed and used on a regional or a national basis, provide helpful information on mitigation options.

3.3 COMPENSATION

3.3.1 Habitat Compensation

Habitat compensation is an option when residual impacts of projects on habitat productive capacity are still deemed harmful after relocation; redesign or mitigation options have been implemented. Compensation is not recommended as an option for loss of critical habitats and should only be considered where compensation for the loss of critical habitats is achievable. Compensation is not an option for loss of habitat productive capacity due to deposition of deleterious substances in any type of habitat.

Habitat compensation generally involves replacing the productive capacity of habitat which has suffered a HADD with newly created habitat or improving the productive capacity of some other natural habitat.

Habitat compensation options have to be selected on a case by case basis, in consideration of feasibility opportunities and constraints. Among the compensation options which may be most frequently contemplated for achieving NNL, the following list of options, presented in order of preference from an ecological perspective, are the most commonly used:

• create similar habitat at or near the development site within the same ecological unit;
• create similar habitat in a different ecological unit that supports the same stock or species;
• increase the productive capacity of existing habitat at or near the development site and within the same ecological unit;
• increase the productive capacity of a different ecological unit that supports the same stock or species;
• increase the productive capacity of existing habitat for a different stock or a different species of fish either on or off site.

3.3.2 Artificial Propagation

The option of artificial propagation involves replacing in part or in whole the natural productive capacity of fish habitat with artificial production. This option should be considered only in rare cases where the Minister determines that this course of action is in the public interest. Examples of rare cases where this option may be considered include: temporarily maintaining a fish population while completing habitat compensation work aimed at recovering natural productive capacity; and, complementing a habitat compensation program in order to meet production capacity objectives. If consideration is given to this option, DFO staff should inform the proponent of the large capital investment and ongoing operational costs that could be incurred in perpetuity if this option is pursued.

Artificial propagation is not a viable solution in most cases where natural habitat could be lost. If an acceptable compensation option cannot be found and the Minister determines that an artificial propagation facility is not in the public interest, DFO must advise the proponent of this determination.

4.0 - Decision Steps to Achieve Habitat Conservation and Protection

The following sections are in the form of decision steps in the project review process. The discussion follows closely the Procedural Steps for No Net Loss presented in the Policy for the Management of Fish Habitat.

Step I: Review of Application from Proponent and/or Governmental Referral

The first step is to review all submitted applications for completeness and to determine if all relevant information has been provided. If more information is required, the proponent or referral agency should be contacted as soon as possible and told precisely what is missing.

In their application, proponents must describe the project, the fisheries resources and habitat present at and around the project site, how the project might affect them, and how they propose to mitigate potential impacts and compensate for anticipated residual impacts. It is often desirable for proponents to contact DFO, directly or through the appropriate provincial agency where a habitat management agreement exists, for preliminary discussions before an application is submitted and, ideally, before land purchases and project designs are finalized. This provides an opportunity to inform the proponent of the sensitivity of the habitat in question and the constraints likely to be imposed, before a major commitment is made.

Step II: Project Assessment

Task 1: Assess Potential for Impacts on Fish and Fish Habitat Productive Capacity (HADD Determination)

Assess the project specifics and commitments made by the proponent in the application, taking into account the knowledge and experience available regarding fish, fish habitat and fisheries in the surrounding area. This is usually straightforward, taking into account such factors as the project's proximity to water, nature of the undertaking, whether or not fish exist in the waterbody, whether or not a fishery exists (at present or in the past or possibly in the future), as well as more subtle factors such as cases that involve possible groundwater impacts or potential cumulative negative effects.

If the assessment demonstrates that a loss in fish habitat productive capacity (HADD) will occur, DFO will advise the proponent so that the project can be revised to include corrective measures. The proponent must provide evidence that the proposed changes will have the desired effect.

Task 2: Determine the Level of Protection Required in Relation to Habitat Productive Capacity

It is important to recognize that habitats vary in the degree to which they contribute to fisheries production. The application of the NNL Guiding Principle must reflect this variation such that the level of protection required is appropriate for the habitat being dealt with. For decision making purposes, it is advisable to qualify the level of protection required for each habitat element under assessment on the basis of its relative importance (contribution to the productivity of a fishery, importance in a local context, type, etc.). It is also advisable to adopt or develop, on the basis of regional specificities, a habitat classification method which would help to standardize the process of determining the level of protection required for each type or "class" of habitat.

For illustration purposes, a simplified high, moderate and minimum level of protection approach will be used in the following sections, in relation to the nature of habitats they are likely to be applied to.

Prior to assessing the value of habitat in the area of the proposed project, it should be determined whether the potentially affected habitat is located in an area which is part of an Integrated Resource Management Plan, or any other form of area management plan. If so, the habitat may already be classified as to its biological values and sensitivity.

If not, other sources of information such as provincial or departmental databases compiled by the appropriate authorities, or coastal and offshore sensitivity maps prepared for emergency response, may be available to assist in decision making. If adequate habitat information does not exist, a habitat assessment is required from the proponent.

Decision-making steps associated with the three levels of protection -- high, moderate and minimum -- are discussed below.

Critical Habitat- Requires a High Level of Protection

Certain fish habitats require a high level of protection because of their importance in sustaining subsistence, commercial or recreational fisheries, their rareness, their high productive capacity, the sensitivity of certain life stages of the fish species they support, etc.

In assessing a project that has the potential to affect fish habitat requiring a high level of protection, management options from the following hierarchy should be applied. Activity specific guideline documents, developed and used on a regional or a national basis, provide helpful information on applicable options.

Available Options in Order of Preference:

NOTE: In certain circumstances the destruction of critical habitat may be unavoidable despite implementation of these options. In these circumstances, compensation for loss of critical habitat is required and compensation options considered must be directed at replacing the lost critical habitat at or near the project site. These situations have to be considered on a case by case basis, however.

A clear rationale for moving from a more preferred to a less preferred option should be included in the project documentation.

If it is determined that mitigative measures proposed by the proponent can be applied so that the fish habitat productive capacity is maintained, DFO advises the proponent in writing indicating acceptance of the revised plan and agreement on measures to be implemented. These mitigation measures may also be incorporated into provincial permits where appropriate.

If HADD cannot be avoided through project relocation, redesign or other mitigation measures, the proponent should be notified that a revised project proposal is required before the review process can continue. The proponent should also be advised of the possibility of charges being laid under the Fisheries Act if the project proceeds and adverse effects to fish habitat occur.

Important Habitat - Requires a Moderate Level of Protection

Habitat deemed to require a moderate level of protection may include, for example, areas utilized by fish for feeding, growth and migration which, while important to the fish stock, are not considered critical. Areas in this category usually contain a relatively large amount of similar habitat that is readily available to the stock. Habitat that has been disrupted by past human activity may also fall into this category.

Development, which is deemed to result in HADD can usually proceed in such habitat, provided that appropriate mitigation and compensation measures are in place. While it is preferable to maintain natural productive capacity, compensation is a possible option for areas requiring a moderate level of protection. Compensation should only be considered, however, after relocation, redesign and mitigation options have been investigated and discarded with appropriate justification.

In assessing a project that is proposed for fish habitat that requires a moderate level of protection, the hierarchy of available management options presented below should be used. Activity specific guideline documents, developed and used on a regional or a national basis, provide helpful information on applicable options.

Available Options in Order of Preference:

A clear rationale for moving from a more preferred to a less preferred option should be included in the project documentation.

If it is determined that mitigative measures proposed by the proponent can be applied so that the fish habitat productive capacity is maintained, DFO advises the proponent in writing indicating acceptance of the revised plan and agreement on measures to be implemented. These mitigation measures may also be incorporated into provincial permits where appropriate.

If HADD cannot be avoided through relocation, redesign or appropriate mitigation measures, the proponent should be advised that the HADD could be authorized pending submission and approval of a suitable habitat compensation plan. The proponent should also be advised of the possibility of charges being laid under the Fisheries Act if the project proceeds and adverse effects on fish habitat occur. Procedures to consider in assessing compensation measures as proposed by the proponent are outlined in Task 3.

Marginal Habitat - Requires a Minimum Level of Protection

Habitats requiring minimal protection have a low productive capacity and, according to available studies, contribute marginally to fish production, but do have reasonable potential for enhancement or restoration.

Development, which is deemed to result in HADD can proceed in such habitat, provided that appropriate mitigation and compensation measures are in place. While it is still preferable to maintain natural productive capacity, compensation is an option for areas requiring a minimum level of protection. Compensation should be considered after relocation, redesign and mitigation options have been investigated and discarded with appropriate justification.

In assessing a proposed project that may affect fish habitat that requires a minimum level of protection, the hierarchy of available management options presented below should be used. Activity specific guideline documents, developed and used on a regional or a national basis, provide helpful information on applicable options.

Available Options in Order of Preference:

If it is determined that mitigative measures can be applied so that the fish habitat productive capacity is maintained, DFO advises the proponent in writing indicating acceptance of the proposed plan and agreement on proposed terms and conditions. Terms and conditions may also be incorporated into provincial permits where appropriate.

If negative impacts cannot be avoided through relocation, redesign or appropriate mitigation measures, the proponent should be notified that a revised project proposal, possibly involving habitat compensation, is required before the review process can continue or before an authorization can be issued. The proponent should also be advised of the possibility of charges being laid under the Fisheries Act if the project proceeds and adverse effects on fish habitat occur. Procedures to consider in assessing compensation measures as proposed by the proponent are outlined below.

Task 3: Assess Revised Project Proposal with Proposed Compensation Measures

Where a project can not be relocated or redesigned, or its anticipated impacts cannot be appropriately mitigated, habitat compensation must be provided for habitats requiring a moderate or minimum level of protection.

Compensation involves the replacement of habitat which has suffered a HADD with newly created habitat or improving the productive capacity of some other natural habitat. While artificial propagation is a form of compensation, it is by far DFO's least preferred option which should only be considered in extenuating circumstances which require senior DFO level approval. The list of habitat compensation options is presented in order of preference under Section 3.3.1 of this Guide.

Due to the higher risk associated with compensation, DFO will consider application of habitat compensation only if the other options prove impossible or impractical. Also, the project's design must still contain appropriate mitigation measures with compensation applying only to the residual impacts of the development.

Once the habitat compensation measures have been designed, the complete project will be reassessed, including mitigation and compensation measures, to determine if all concerns relating to harmful alteration, disruption or destruction of fish habitat are addressed. If none remain, the project may be authorized. Conditions regarding habitat compensation measures must, however, be formalized. This is preferably done through the preparation and signing of a habitat compensation agreement between DFO and the proponent. In certain situations, however, regional Habitat Managers may prefer to include agreed upon habitat compensation measures as terms and conditions attached to the authorization.

If the revised project proposal does not address residual impacts, the proponent should be informed that the project, as proposed, will result in unacceptable alteration of fish habitat and charges could be laid under the Fisheries Act if the project proceeds as proposed.

Note: A decision by DFO to authorize the harmful alteration, disruption or destruction of fish habitat triggers an environmental review pursuant to the Canadian Environmental Assessment Act (CEAA).

Step III: Public Consultation

In the case of major development projects, where it is not feasible to avoid habitat loss or damage, and where mitigation and compensation measures cannot be implemented to fully prevent losses to the habitat's productive capacity, DFO will conduct public consultations and a thorough review and assessment of all factors.

Usually comprehensive environmental reviews of these large projects are conducted through existing provincial and/or federal (CEAA) assessment and review processes, including public review, which allow DFO to hear public concerns related to fisheries and fish habitat.

Step IV: Decision

Following examination of the proposed work or undertaking and taking into account the results of any public consultations, a decision will be taken on the project assessment.

DFO will take into account the economic and environmental benefits and costs associated with the development of alternative solutions.

Depending on the outcome of the Department's deliberations, DFO could decide to follow one of these actions:

1. a Fisheries Act authorization is not required because the project does not result in the harmful alteration of fish habitat. The Department may notify the proponent of this conclusion, confirming appropriate terms and conditions and mitigative measures;
   
2. a Fisheries Act authorization will be issued and will include appropriate conditions because the project will result in the harmful alteration, disruption or destruction of fish habitat;
   
3. a Fisheries Act authorization will not be issued because the project will result in unacceptable harmful alteration, disruption of destruction of fish habitat. The proponent will be advised of the possibility of charges being laid under the Fisheries Act if the project proceeds as proposed.

Step V: Audit

DFO has an obligation to see that compliance monitoring and effectiveness evaluation are undertaken.

It is not possible to completely predict the changes to fish habitats that might occur as a result of proposed actions, and therefore the effects of the project should be monitored during and for a prescribed period after development. Proponents may be required by DFO to undertake follow-up monitoring studies on the effectiveness of habitat mitigation and compensation prescriptions.

DFO will use the results of these studies as a basis for discussion with proponents regarding the possible need for improvements in mitigation and compensation measures. DFO will identify the possible need for follow-up corrective actions by proponents.

Step VI: Enforcement

The Department will enforce the Fisheries Act so as to protect fish and fish habitat. If the proponent does not comply with the terms and conditions as stated by DFO and fish or fish habitat are harmed, enforcement procedures will be initiated pursuant to the Act in accordance with departmental compliance policies.

5.0 - Supporting Material

5.1 Documentation

DFO personnel will maintain records of all discussions, actions and decisions regarding the application of NNL in the review of proponents' project proposals.

The purpose is to:

• provide a standardized record of decisions relating to referrals against which the performance of proponents can be monitored as a project proceeds;
• provide a summary of the condition of the habitat before and after development;
• help DFO to evaluate its success in meeting the NNL objective;
• provide the information necessary to revise and improve the Habitat Conservation and Protection Guidelines;
• provide a summary of the information necessary to revise, improve and audit the effectiveness of mitigation and compensation techniques; and
• provide a source of information for senior managers in the event of an appeal by proponents.

The national Habitat Referral Tracking System is now in place. This initiative, which documents habitat management decisions and the results of those decisions, is used to progressively improve the habitat management program.

5.2 Habitat Compensation Agreements

In order to issue an authorization on the basis of habitat compensation, it is necessary to have in place a separate legally binding habitat compensation agreement or, when deemed preferable by Habitat Managers to achieve No Net Loss, a habitat compensation agreement built into the authorization. This agreement must specify precise terms and conditions and be signed by, or agreed upon when built into the authorization, the proponent and DFO, as well as the appropriate provincial or territorial authority, where required.

It may also take the form of a letter of intent or Memorandum of Understanding, as long as it specifies the precise terms and conditions of the project approval and is signed by the proponent. A separate habitat compensation agreement does not, however, constitute an authorization. It is strongly recommended that the compensation agreement, letter of intent or Memorandum of Understanding be reviewed by departmental Legal Services before it is finalized.

The separate habitat compensation agreement must clearly specify the following:

• type of project;
• type, location and extent of habitat to be affected and compensated for;
• type, location and extent of compensatory habitat;
• form of compensation;
• start and completion dates for the work;
• results to be achieved;
• follow-up and monitoring required;
• how success will be evaluated;
• the measures to be taken if success is not achieved;
• nature of financial security required;
• the proponent's liability;
• mailing address of both parties; and,
• method for effecting notices.

It is recommended that a clause be included in the agreement requiring that the proponent provide a performance bond, a bank letter of guarantee or a guaranteed letter of credit. This will assure DFO that if the proponent defaults under the agreement, the work will either be completed by another contractor or DFO will receive the money to hire someone to finish it.

It would be advisable; however, to also include in the agreement a clause which states that, the existence of a bond, letter of guarantee or guaranteed letter of credit does not protect the proponent from prosecution for violation of any section of the Fisheries Act.

A legally binding habitat compensation agreement (contract) can be entered into with an individual or corporation. While it is legally feasible to enter into contractual arrangements with other Crown agencies, the appropriate document would be a Memorandum of Understanding when the proponent is another federal or provincial/territorial agency. A Memorandum of Understanding, while not legally binding, would at least allow the parties to set out their intentions clearly.

Figure 1: A Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat.

Figure 2: Options for Habitat Conservation and Protection

References

Department of Fisheries and Oceans, 1986. Policy for the Management of Fish Habitat.