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.

Appendix B: Developing and Implementing a Compensation Plan for a HADD Authorized Under the Fisheries Act

A habitat Compensation Plan is only required when it has been determined that a project will result in a harmful alteration, disruption or destruction (HADD) of fish habitat and the project must be Authorized under the Fisheries Act. A Compensation Plan is to be designed to offset the losses in productive capacity of fish habitat associated with the authorized HADD. Proponents are encouraged to engage a fish habitat specialist or other qualified environmental service provider for advice and guidance in the design and implementation of a Compensation Plan.

This Appendix provides guidance to Proponents in developing compensation plans to offset the harmful alteration, disruption, or destruction (HADD) of fish habitat, resulting from a work or undertaking. This guidance material builds on the principles outlined in the 1986 "Policy for the Management of Fish Habitat" and the "Practitioners Guide to Writing a Subsection 35(2) Fisheries Act Authorization". Additional guidance is also provided in the DFO "Practitioners Guide to Habitat Compensation".

Background

DFO's preference is to avoid the HADD of fish habitat through project relocation, redesign and impact mitigation, wherever possible. Where a HADD cannot be avoided, compensation measures are necessary to achieve the Guiding Principle of No Net Loss (NNL), as specified in the 1986 Policy. Proponents are required to compensate for the HADD as a condition of Subsection 35(2) Fisheries Act Authorizations.

Compensation is defined in the Policy as:

"The replacement of natural habitat, increase in the productive capacity of existing habitat, or maintenance of fish production by artificial means in circumstances dictated by social and economic conditions, where mitigation techniques and other measures are not adequate to maintain habitats for Canada's fisheries resources."

In accordance with the Habitat Policy and DFO guidance documents, the hierarchy of preferences to be considered for achieving NNL through compensation are:

1. Create or increase the productive capacity of like-for-like habitat in the same ecological unit;
2. Create or increase the productive capacity of unlike habitat in the same ecological unit;
3. Create or increase the productive capacity of habitat in a different ecological unit; and
4. As a last resort, consider artificial production techniques to maintain a stock of fish.

In unique and rare situations DFO may also consider deferred compensation or restoration of previously impacted sites that are not in the same geographic location as the project.

Information Considerations

In developing a Compensation Plan, Proponents should strive to identify compensation methods in accordance with the first two preferences stated above. However, all proposed compensation plans should be clearly linked to benefits for the fisheries resource, and the HADD for which the Authorization is being sought. Whether NNL is achieved through strict adherence to the preferences, or through some innovative combination of available options, the most important consideration is ensuring that the proposed compensation works will have a tangible benefit to the fisheries resource.

In developing compensation plans to offset the losses associated with a HADD, there are a number of factors that should be considered:

• The type of habitat that is being harmfully altered, disrupted, or destructed;
• Habitat sensitivity, uniqueness, rarity and abundance at the impacted site;
• The temporal nature of the impact (permanent or temporary impacts)
• Habitat quality, supply and function, at both the impact and compensation sites;
• Fisheries management objectives, fishery use, or potential;
• First Nations traditional uses and ecological knowledge;
• Watershed impacts;
• The presence of Species at Risk (or critical habitat for Species at Risk);
• The type and quality of compensatory habitat being proposed; and
• The risk of failure and the time lag until compensatory habitats are fully functional.

Information Requirements

When submitting a Compensation Plan for review, the following information should be included to ensure an efficient review and Authorization of the project:

• A description of the compensation site and planned works. This should include photographs and sketches/drawings of the site identifying the approximate location (geographic coordinates), area, number and dimensions of compensation works and structures.
• Details of the fish habitat at the compensation site, and the fish that presently utilize the site.
• Identification of the factors limiting the productive capacity and habitat function of the area in which the compensation works are being proposed.
• If applicable, identification of established stakeholder groups, and confirmation that consultation has occurred where necessary.
• The option chosen from the hierarchy of preferences (stated above), and/or a rationale as to why a combination of the preferences was chosen.
• Detailed description(s) of proposed compensation works including drawings outlining the nature and location of compensation works and plans or drawings for any constructed works or structures.
• Characterization of the habitat gains expected from the compensation works [i.e. the type and amount of habitat to be created, the species that will benefit, the habitat function or capacity that will be created, improved or enhanced, and how such gains will offset the HADD].
• If habitat ratios (compensatory habitat : impacted habitat) were used in developing the Compensation Plan, a description of how the ratios are intended to offset the losses associated with the HADD should be provided.
• The timeline for implementing the compensation works.
• The construction details [i.e. machine access routes, mitigation measures to prevent additional HADD during construction, construction methods, etc].
• Issues that could compromise the success of the compensation works [i.e. site accessibility, downstream fish obstructions, etc.].
• Confirmation of land tenure, legal right of access, and management authority for compensation works. If applicable, please include signatures of any affected landowners.
• Environmental inspection and monitoring commitments [for example, a description of compliance and effectiveness monitoring that will take place in relation to the compensation works, a description of post-compensation monitoring, etc.].
• A copy of "as-build drawings".

Itemized cost(s) of compensation measures may be required. If DFO requires a Letter-of-Credit to cover the costs of mitigation, compensation, and monitoring measures for the project the Proponent would then be required to provide Compensation Plan costing details.