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.

Memorandum of Understanding between The Canadian Electricity Association and Fisheries and Oceans Canada

Preamble

WHEREAS the Canadian Electricity Association (CEA) is the national trade association of the Canadian electricity industry, and, as such, is responsible for representing the industry to the Government of Canada and its agencies and for advancing the interests of the industry, including its capacity to deliver reliable, affordable electricity to Canadians and its environmental performance, as documented under its national voluntary Environmental Commitment and Responsibility (ECR) Program, (see Annex 1)

and

WHEREAS the CEA, in the context of its national mandate and its role in the administration of the ECR Program, is committed to aiding its members in their efforts to conserve and protect Canada's fish and fish habitat resources and comply with the Fisheries Act, and is further committed to attaining that end by working cooperatively, on behalf of its members, with Fisheries and Oceans Canada(DFO),

and

WHEREAS the CEA and DFO recognize that CEA members, who often manage diverse generation portfolios with technologies that have different environmental impacts, must constantly balance protection of fish and fish habitat resources with other social, environmental, and economic objectives that Canadians consider important, all in the context of comprehensive provincial and federal regulatory and policy frameworks,

and

WHEREAS the DFO is responsible for the conservation and protection of Canada's marine and freshwater fish and fish habitat resources from the impact of human activities, and assumes this constitutional responsibility through the authority of the Fisheries Act (Annex 2), guided by the "Policy for the Management of Fish Habitat" (Habitat Policy) and other related regulatory and policy documents (Annex 3), and fulfills this responsibility through implementation of its Habitat Management Program's Key Activities (Annex 4),

and

WHEREAS DFO recognizes that the success of national efforts, including the development and implementation of an effective, efficient, and consistent Habitat Management Program, is enhanced through cooperation with a variety of organizations across the country, including industry associations,

and

WHEREAS DFO desires, in particular, to cooperate with Canada's electricity industry in order to better conserve and protect the fish and fish habitat resources associated with electricity generation in Canada in a manner consistent with the requirements of the Fisheries Act and related regulatory and policy documents, including the Habitat Policy, and, thus, to help better achieve the goals and overall objective of the Habitat Management Program,

THEREFORE the CEA and DFO agree to establish a cooperative working relationship through this "Memorandum of Understanding" (CEA-DFO MOU), in order to facilitate regular national and regional consultation, collaborate in the development of standard fish and fish habitat conservation and protection requirements consistent with the objectives of the Fisheries Act, the Habitat Policy, and related regulatory and policy documents, undertake joint stewardship initiatives, develop joint education and training materials, and establish joint research programs, all with the intent of better protecting the fish and fish habitat resources associated with electricity generation in Canada.

1. Consultation

The CEA and DFO agree that, in order to exchange information, resolve conflicts, and develop and implement initiatives described in this CEA-DFO MOU, they must undertake to consult regularly. To this end, the CEA and DFO jointly commit to:

1. conduct an annual senior level meeting between industry executives and DFO officials to monitor progress under the CEA-DFO MOU;
2. convene twice annual operations level meetings to define priorities, review progress, discuss specific concerns, advance stewardship, education and training and research initiatives, and share ideas on fish habitat management;
3. encourage and facilitate meetings between electricity industry and DFO regional representatives in regions across Canada.

2. Compliance with the Fisheries Act

The CEA and DFO agree that compliance with the Fisheries Act is best achieved through the development of a National Fisheries Act Compliance Strategy and Action Plan for Electricity Generation that describes legally based and scientifically sound fish and fish habitat conservation and protection requirements which are to be applied consistently across Canada, with appropriate recognition of local and regional differences. Therefore, the CEA and DFO agree to cooperate in developing such a national compliance strategy and action plan.

3. Stewardship

The CEA and DFO agree to work together to encourage and coordinate fish habitat stewardship initiatives across the nation. These stewardship initiatives will be consistent with the objectives of the relevant regulatory and policy documents and the priorities of the Habitat Management Program and with the priorities of the CEA and its member companies. When mutually agreed upon, they will be developed and implemented at the local level by CEA member companies and regional representatives of DFO. Where possible, the CEA and DFO agree to involve other government agencies in these local initiatives. The CEA and DFO further agree to publicize such joint initiatives and, in such publicity, to recognize the respective role of each party.

4. Education and Training

The CEA and the DFO agree, with respect to electricity generation and fish and fish habitat conservation and protection, to coordinate development of programs and materials used for public education and staff training. To this end, the CEA agrees to encourage the inclusion of DFO habitat management training materials in staff training programs of its member utilities. The DFO, for its part, agrees to include CEA materials on electricity generation practices in its staff training programs. Both parties agree that their public education programs and materials about electricity will identify known effects of electrical generation on fish and fish habitat, while also highlighting the many innovative approaches being taken across the country to protect fish and fish habitat. The CEA and DFO also agree to develop joint public education materials and programs about fish and fish habitat conservation and protection and electricity generation.

5. RESEARCH AND MONITORING

The CEA and DFO recognize the importance of research and monitoring in providing the scientific knowledge necessary for the effective conservation and protection of fish and fish habitat. Therefore, in order to better understand the impacts of electricity generation facilities on fish and fish habitat, assess the effectiveness of measures taken to protect and conserve fish and fish habitat, and improve the performance of electricity generation facilities with respect to the protection, conservation, and enhancement of fish and fish habitat, they agree to exchange information and develop research and monitoring priorities together. The CEA and DFO also agree that, whenever warranted by budget considerations and mutual advantage, they will initiate joint research and monitoring efforts. The CEA and DFO further agree to publicize such joint initiatives and, in such publicity, to recognize the respective role of each party.

6. REVIEW AND ADMINISTRATION OF THE AGREEMENT

The CEA and DFO agree to prepare and present an annual report to the Minister of Fisheries and Oceans and the CEA Executive Committee describing progress in implementing the CEA-DFO MOU and the contribution of initiatives launched under the CEA-DFO MOU to the sustainable management of fish and fish habitat resources and electricity generation in Canada. The results will be identified in the Department's Annual Report to Parliament on Habitat Management.

The signatures of the parties will initiate this CEA-DFO MOU. Either the CEA or DFO can terminate this MOU on three months written notice to the other party. This MOU will be reviewed by respective senior executives three years after the date of its coming into force to evaluate its effectiveness and to make appropriate mutually acceptable adjustments as required. Additionally, the MOU can be amended at any time with the approval of both parties.

The CEA and DFO will resolve issues regarding the implementation of this MOU in a timely manner using mechanisms available at the staff and senior executive levels of both organizations.

CANADIAN ELECTRICITY ASSOCIATION

Original Signed by

Hans Konow, President, CEA

the week of July 2, 2002

GOVERNMENT OF CANADA

Original Signed by

Dr. Peter Harrison, Deputy Minister

Fisheries and Oceans Canada

the week of July 2, 2002

ANNEX 1 - Summary of the CEA Environmental Commitment and Responsibility (ECR) Program

Background

The Environmental Commitment and Responsibility (ECR) Program was established in 1997 by electric utilities, through the Canadian Electricity Association (CEA), to report on environmental performance on a national, industry-wide basis. Participation in the ECR Program became a requirement of corporate utility membership with CEA 1998.

At the core of the ECR Program is an open commitment to adopting four environmental performance principles that electric utilities integrate into their daily business activities:

1. To be more efficient in our use of resources.
2. To reduce the adverse environmental impact of our business.
3. To be accountable to our constituents.
4. To ensure that our employees understand the environmental implications of their actions and have the knowledge and skills and to make the right decisions.

These principles are translated into specific measures and indicators which are tracked each year to demonstrate the industry´s commitment to improved performance.

The aggregated results are compiled into an Annual Report on the electricity industry, which is shared with utility customers, business partners and all other stakeholders. Each utility´s results are verified, at least once every five years, by an independent outside body.

Objectives 

The ECR Program recognizes that the industry and individual companies have to conduct their business with due respect and care for the natural environment and societal expectations in order to remain accountable to stakeholders.

The implementation of the ECR Program results in a healthier environment, improved corporate performance, and long-term profitability and economic benefits. The Program fosters this by complementing each electrical utility member's own environmental program(s). Specifically the program is designed to achieve the following objectives and benefits:

• Improved environmental performance and credibility
• Partnership opportunities in Public Policy development and implementation
• Creation of marketing and trade advantages
• Increased efficiency and cost reduction through improved management and reporting
• Business opportunities and profitability

Monitoring and Reporting

A Public Advisory Panel provides an independent overview each year to ensure the integrity and credibility of the Program. Each utility prepares an ECR Progress Report which is signed off by the CEO and submitted by March 31 each year. The Progress Reports are then compiled to form the basis of the Annual Report, which is publicly released in September of each year. The Annual Report communicates performance based on industry level results, using the Indicators, and provides the status of EMS implementation.

The Panel reviews each individual report to develop an assessment of the industry's progress on implementing the Program. This evaluation forms the basis for their "letter to the industry", which is included in the Annual Report.

ANNEX 2 - Habitat Provisions of the Fisheries Act

Section 20: Ensures safe passage for fish

Section 21: Ensures fishways constructed around obstructions

Section 22: Minister can require that appropriate measures are taken at dams and other obstructions to ensure fish passage and to maintain sufficient flows to protect fish habitat downstream

Section 28: Prohibits hunting or killing of fish by explosives

Section 30: Ability to require fish guards or screens at water diversions or intakes

Section 32: Prohibits the destruction of fish by any means other than fishing

Section 35: Prohibits works or undertakings that result in the harmful alteration, disruption or destruction of fish habitat, except when authorized by the Minister or his designate

Section 36: Prohibits the deposit of deleterious substances in water frequented by fish, except where authorized by Regulations

Note: Section 36 is administered by Environment Canada on behalf of the Minster of Fisheries and Oceans and does not form part of this Agreement

Section 37: Allows the Minister to request plans and specifications where harmful alteration of habitat or the deposit of a deleterious substance may occur. Where unauthorized deposit of a deleterious substance disruption of habitat is likely, the Minister may order appropriate corrective action

ANNEX 3 - Federal Government Fish Habitat Management Regulatory and Policy Documents

Habitat protection provisions of the Fisheries Act

Policy for the Management of Fish Habitat, 1986

Habitat Conservation and Protection Guidelines

Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat

ANNEX 4 - KEY ACTIVITIES LIST FOR THE MANAGEMENT OF FISH HABITAT IN CANADA

REGULATORY
Protection and Compliance (Strategy 1) (incl. CEAA since 1995)

Review development proposals ("referrals") to assess compliance with the Fisheries Act :

• Examine referral documentation
• Seek, request and/or provide additional information or clarification
• Conduct site visits
• Determine impacts to fish and fish habitat
• Identify mitigation/compensation requirements
• Make decision
• Issue letter(s) of advice or authorization(s)
• Communicate requirements, decisions, etc. to proponent

Conduct enforcement activities:

• Establish habitat enforcement priorities
• Conduct compliance monitoring (ensure compliance with the Fisheries Act, authorization, mitigation and/or compensation measures, directions and/or orders)
• Investigate potential offences under Fisheries Act and collect evidence, including testimony from key witnesses
• Advise on potential violations
• Recommend prosecution or pursue alternative actions
• Provide expert witness testimony, support documentation or advice
• Oversee that court directions are fully implemented

Conduct Environmental Assessment under CEAA triggered by regulatory decisions under the Fisheries Act and/or Navigable Waters Protection Act :

• Coordinate federal input.
• Acquire legal input
• Respond to subsection 12(3) requests
• Maintain public registries
• Conduct environmental assessment (analysis of information, communication with proponent, public participation, follow-up program, etc.)
• Prepare Screening or Comprehensive Study report
• Respond to inquiries
• Coordinate and prepare response to Panel/mediator report recommendations
• Conduct other Fisheries Act activities specific to Panel or mediation (participate at hearings, prepare written and/or oral submissions, make recommendations, etc.)

FRESH WATER AND OCEANS PLANNING
Integrated Resource Planning (IRP) (Strategy 2)

Define and establish fish habitat objectives and requirements at the ecozone, watershed and/or other levels :

• Establish roles and responsibilities in IRP initiatives
• Determine current health and status of fish habitat in relation to fisheries
• Establish desired objectives and identify priorities
• Develop and participate in IRP initiatives
• Develop and implement action plans
• Monitor and evaluate effectiveness of the action plans

HABITAT ENHANCEMENT
Habitat Improvement (Strategy 7)

Conduct habitat improvement activities:

• Identify priorities for habitat improvement (see also IRP)
• Develop projects to restore damaged habitat
• Establish projects to develop (increase/improve) habitat
• Provide support, advice and guidance on improvement activities
• Monitor/evaluate effectiveness of improvement activities

COMMUNITY OUTREACH AND STEWARDSHIP
Public Information and Education(Strategy 5) Public Consultation(Strategy 4) Co-operative Action(Strategy 6)

Design/implement proactive communication strategies to relay specific information and educational material:

• Develop communication plans (including requirements, target audiences, mechanisms, etc.)
• Develop communications materials
• Disseminate material/information to external target audience(s)
• Monitor and evaluate effectiveness of communications materials/ initiatives

Conduct public consultations:

• Establish policies, approaches and guidance for public consultation
• Plan and hold consultation sessions on major or controversial fish habitat issues, as well as proposed new or revised policies and legislation
• Collect information and feedback obtained during public consultation
• Evaluate effectiveness of consultation
• Provide feedback (summary/conclusions) to participants

Maintain and develop co-operative arrangements:

• Identify clear roles and responsibilities of DFO and partners
• Review current agreements
• Prioritize future partnering opportunities
• Develop new partnering opportunities
• Sustain arrangements
• Evaluate progress/results of partnering arrangements

SCIENTIFIC SUPPORT
Scientific Research (Strategy 3) Habitat Monitoring (Strategy 8)

Conduct and communicate research in support of Regulatory, Integrated Watershed Management and Community Outreach activities:

• Identify emerging issues/trends and scientific research
• Undertake/contract research
• Translate research results into user-friendly formats for different audiences
• Provide input to effectiveness monitoring for guidelines and/or mitigation/ compensation decisions

Ascertain "effectiveness" of decisions/techniques related to both referrals & integrated watershed projects:

• Identify objectives and priorities to design appropriate monitoring techniques/ plans
• Monitor and evaluate projects to verify effectiveness of mitigation and/or compensation measures (baseline conditions and trends)
• Provide direction for needed amendments or adjustments to mitigation and/or compensation measures
• Share results with DFO staff, management and partners

INFORMATION MANAGEMENT

Manage Program data and information:

• Identify data and information requirements/sources
• Design, build and maintain knowledge integration tools for staff and partners
• Collect and adapt/package Program-related information and best practices
• Disseminate Program-related information to internal staff and partners
• Evaluate effectiveness of Program data and information management tools and modify as required

PROGRAM MANAGEMENT

Manage and administer Program:

• Direct and co-ordinate Program-wide activities
• Manage financial and human resources
• Establish and monitor specialized contracts and work of external consultants, researchers, etc.
• Respond to various requests for information (public inquiries, ATIP, Ministerial correspondence, briefing notes, Auditor General petitions, NACEC submissions, Auditor General reports, etc.)
• Record, track and report on Program performance (e.g., TB Performance Management, Annual Report to Parliament, CEA Agency, etc.)