Notice

On June 29, 2012, the Fisheries Act was amended. Policy and regulations are now being developed to support the new fisheries protection provisions of the Act (which are not yet in force). The existing guidance and policies continue to apply. For more information, see Changes to the Fisheries Act.

Project Approval Decisions Under the Fisheries Act

No Impact to Fish or Fish Habitat - the Fisheries Act does not apply

Not all infrastructure projects will result in harm to fish and fish habitat. Some projects will not be in or near water and will have no impact on fish or fish habitat. Projects that may be near or in water, if planned, sited, designed and constructed properly by experienced and qualified firms or individuals, may be undertaken in a manner that avoids impacts to fish and fish habitat. The Fisheries Act allows for these projects to proceed without the Proponent contacting DFO for review or authorization.

The following question has been identified as a first step to identifying projects to which the Fisheries Act could typically apply:

• Are all components of the project a minimum of 30 metres or more away from the normal high water mark of a water body?

If the response to this question is yes, a project can usually proceed without notifying DFO, as the Fisheries Act does not likely apply. It remains the responsibility of the Proponent, however, to ensure that indirect impacts to fish and fish habitat are avoided through implementation of sediment and erosion control measures, protection of riparian vegetation, and prevention of the release of harmful substances into any water bodies.

If the answer to the question is no, there may be an impact on fish or fish habitat and the Proponent should seek the advice of a qualified environmental service provider or individual. Where impacts to fish and fish habitat cannot be avoided, or the avoidance of impacts is uncertain, a site-specific DFO review may be required. Conversely, where impacts can be avoided through project planning, siting and design (see 7.2 below) a site-specific DFO review may not be required.

Low Risk to Fish and Fish Habitat - the Fisheries Act does apply, No DFO Review Required

The following sections provide guidance on how to apply DFO Operational Statements and other standard mitigation tools to protect fish and fish habitat for projects that pose low risk to fish and fish habitat.

If a Proponent is planning to do work in or near water they should be aware of the potential impact their proposed project may have on fish and fish habitat. DFO has developed activity specific Operational Statements that can be used in different provinces and territories to mitigate potential fish habitat impacts from "low risk" activities. Other known and accepted tools and standard approaches such as Federal or Provincial Guidelines for activities affecting fish habitat, Erosion and Sediment Control Plans, water intake fish screening, activity specific Best Management Practices, design, construction and operating standards, etc. can also be effective in mitigating impacts to fish and fish habitat if applied properly.

Using DFO Operational Statements

Operational Statements have been developed by DFO to help Proponents plan and design their project to avoid impacts to fish and fish habitat. Operational Statements have been developed to address specific activities with "low risk" of affecting fish and fish habitat. Application of these Operational Statements will avoid or mitigate impacts to fish and fish habitat. By following the advice in these documents it is not necessary for a proposal to undergo project-specific DFO review and approval.

A "National List of Operational Statements" has been developed and is presented in Appendix C. Please refer to the DFO website to review the list of activities that are covered by Operational Statements. From this web page, the Proponent can select the Province or Territory where a proposed project will be carried out to find both the approved current Operational Statements for the project location, DFO notification forms, and the contact information for local DFO offices should further information be required.

Proponents may refer to "Figure 2: Project Review and Approvals Process Using Operational Statements or Standard Practice" for additional information on the project planning, design and approval requirements.

Using Other Standard Practice Tools

In addition to Operational Statements, other Standard Practice tools and guidance, or project review processes may exist in different Provinces, Territories and/or Municipalities. These processes may include a one-window referral (project review) process where the Province or Territory is the first point of contact to review a proposed project, and is permitted to take into account fish and fish habitat issues to meet the requirements of the Fisheries Act. DFO has identified Agreements to established one-window approach on the Operational Statements website.

Other tools and guidance may include best management practices and approved work practices that outline acceptable practices to follow when carrying out certain activities. To access those tools that have been identified by DFO working in cooperation with Provincial or Territorial governments, go to the DFO Operational Statements website and select the appropriate Province or Territory to check if identified Standard Practice processes apply to a proposed project.

As noted earlier, experienced and qualified environmental firms and individuals can also assist a Proponent in identifying additional acceptable mitigation measures and other relevant tools or processes that will address fish and fish habitat issues and identify project planning, siting, design and construction requirements, and required mitigation. If the Proponent is able to avoid impacts to fish and fish habitat, the project can proceed without DFO review and approval.

Proponents are encouraged to submit project proposals to DFO for review if they are uncertain whether or not they will be able to incorporate the advice provided in an Operational Statement or other Standard Practice. Project proposals should also be submitted for review by DFO if the Proponent feels that the proposed development may have an impact to fish and fish habitat that they have not been able to fully avoid.

Proponents may refer to "Figure 2: DFO Project Review and Approvals Process Using Operational Statements or Standard Practice" for additional information on the project planning, design and approval requirements.Ensuring that all relevant information and analysis is submitted to DFO is vital to achieving a timely review of a project.

Information Requirements for Projects Not Requiring DFO Review and Approval

The federal government has identified the importance of complying with relevant legislation in the delivery of the increased federal funding for infrastructure projects across Canada. When using Operational Statements, DFO requests that the Proponent send the notification form attached on the last page of each Operational Statement to DFO to assist in monitoring the effectiveness of the Operational Statements for protecting fish habitat. Also, DFO may choose to audit projects to ensure conformity with the conditions of the Operational Statements or other Standard Practice Tools.

Potential Impact to Fish and Fish Habitat - the Fisheries Act does apply, DFO Review Required

There are three situations when a project proposal should be submitted to DFO for advice and any required Authorization. These situations are:

1. The Proponent is uncertain that they can follow the advice and implement the mitigation in an Operational Statement or other Standard Practice Tools to fully avoid impacts to fish and fish habitat.
2. The Proponent feels that the project may result in harmful impacts to fish and fish habitat.
3. The Proponent knows that the project will result in harmful impacts to fish and fish habitat.

DFO has developed a "Proponents Guide to Information Requirements for Review under the Fish Habitat Protection Provisions of the Fisheries Act". (http://www.dfo-mpo.gc.ca/habitat/role/141/1415/14155/requirements-exigences/index-eng.asp). Proponents not familiar with the application of the Fisheries Act should refer to this document for specific instruction on the requirements to submit information for review by DFO when a detailed review is recommended. It is in the Proponent's best interest to ensure that DFO information requirements for the project are met upon submission of their funding application. A summary of "Information Requirements for Projects Reviewed by DFO" is presented in Appendix A. Detailed requirements and additional information is provided on the DFO website as noted above.

Proponents may refer to "Figure 3: Operational Statements and Standard Practices Do Not Apply - Project Referred to DFO for Review and Approval" for additional information on the project planning, design and approval requirements.

It is important that Proponents submitting their projects to DFO for review clearly identify when the project is being funded under the federal Building Canada Plan, and under which specific program the funds are being provided. This will allow DFO to identify and track federally funded infrastructure project reviews, as well as ensure that the appropriate environmental assessment process is followed for these projects.

Standard Mitigation Measures Adequately Address Risk to Fish and Fish Habitat

Upon review of the information submitted, DFO may determine that standard measures that are set out in Operational Statements or other Standard Practices (Provincial Regulations, guidebooks, industry specific codes of practice or other mechanisms) are adequate to avoid all impacts to fish and fish habitat. In such a case, the Proponent would be referred to the appropriate Operational Statement, references or information, which if incorporated into the project plan, would not require DFO review or authorization.

Additional Mitigation Measures Are Required to Avoid Harm to Fish and Fish Habitat - Issuance of a DFO "Letter of Advice"

Where it is clear that standard mitigation measures alone will not address all potential harmful effects to fish and fish habitat, additional site specific measures and conditions may need to be specified by DFO. In these cases the project should be referred to DFO who will provide guidance and advice in the form of a "Letter of Advice". By following the measures outlined in a "Letter of Advice" the Proponent can proceed and avoid the need for authorization under the Fisheries Act.

Harmful Alteration, Disruption or Destruction (HADD) of Fish Habitat Cannot be Avoided - Authorization for a HADD and Compensation Are Required

DFO's first preference is always to avoid the harmful alteration, disruption or destruction (HADD) of fish habitat through relocation, redesign and mitigation. Where it is clear that despite efforts to relocate, design or mitigate, the project will result in impacts to fish habitat, a Fisheries Act authorization will be required.

For DFO to contemplate authorization, the HADD must be considered acceptable. Acceptability is a function of the feasibility of alternate designs or project siting, nature and severity of the residual impact, the value/sensitivity of habitat affected, and the adequacy of compensation.

The proportion of projects likely to result in a HADD that require an authorization and associated compensation measures, in general, is relatively small. However, where a HADD is likely to occur as a result of project works or undertakings, it is important that an authorization be obtained. The Proponent is required to gather the appropriate information and request DFO review of their project proposal following the process described in Appendix A. In order for DFO to issue an Authorization an effective habitat compensation plan must also be developed and implemented to offset the authorized impacts to fish habitat. Appendix B provides information on the process and considerations for developing and implementing a fish habitat compensation plan for infrastructure works.

Harming fish or fish habitat without a Fisheries Act authorization is an offence under the Act,and carriessignificant penalties.

Unacceptable Impacts - Project Cannot Proceed as Designed

DFO will not issue an authorization under the Fisheries Act where the harm to fish and fish habitat is considered unacceptable, due to the scale or severity of the impacts or the critical or important nature of the habitat impacted. Accordingly, Proponents are strongly encouraged to examine all location and design options for their project at the conceptual project design stage to avoid this outcome.