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.

Proponent's Guide to Information Requirements for Review Under the Fish Habitat Protection Provisions of the Fisheries Act

Version 1.2
April 2009

Foreword

This Guide is intended for proponents proposing to carry out works or undertakings in or near water including riparian areas. It outlines the information that Fisheries and Oceans Canada staff need in order to review a development proposal and ensure adequate protection of fish and fish habitat in accordance with the fish habitat protection provisions of the Fisheries Act. The information provided by proponents will help staff determine whether additional measures are needed to prevent or reduce potential impacts to fish and fish habitat from the proposed development or whether a Fisheries Act authorization is needed when those impacts are considered to be unavoidable but acceptable.

Although the information requirements identified in this Guide are sufficient for the majority of development proposals, large-scale and/or more complex proposals may present a greater risk to fish and fish habitat or may cause greater uncertainty with regard to their potential impacts. In such cases, more detailed information may be required by staff to determine whether or not a Fisheries Act authorization is required.

This Guide is also intended to promote dialogue between proponents and Fisheries and Oceans Canada staff. Proponents are encouraged to contact staff as early as possible in the planning stage of their proposed development. If you have any questions regarding this Guide, please contact your local Fisheries and Oceans Canada office. Office contact information can be accessed from the Department's web site at http://www.dfo-mpo.gc.ca/habitat/regions/index-eng.htm. Please use this link to find mailing information to submit your development proposal to a Fisheries and Oceans Canada office for review.

Please note that you are required to respect all municipal, provincial, territorial or federal legislation that applies to the work being carried out in relation to your proposed development. In the event that you are working in a province where there is joint referral process between provincial agencies and Fisheries and Oceans Canada, you are also encouraged to contact the province with your proposed development plans.

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Table of Contents

Introduction

A) Contact Information for Proponent, Contractor and Consultants

B) Location of the Proposed Development

C) Description of the Aquatic Environment

• C.1 Type of Watercourse, Water Body
• C.2 Biophysical Characteristics of the Site
• C.3 Drawings or Photographs of the Aquatic Environment

D) Description of the Proposed Development

• D.1 Components of the Proposed Development
• D.2 Methods, Materials and Equipment
• D.3 Affected Area
• D.4 Plans, Maps or Drawings
• D.5 Fish and Fish Habitat Protection Measures
• D.6 Implementation Schedule
• D.7 Life Expectancy

E) Glossary of Terms

Introduction

* See the Glossary of Terms at the end of the document for an explanation of words that are italicized and have an asterix.

Canada's Fisheries Act provides for the protection of fish* and fish habitat*. The Act includes fish habitat protection provisions* that prevent anyone from carrying out works or undertakings in or near water that prevents fish passage, reduces flow, results in fish mortality by means other than fishing or the harmful alteration, disruption or destruction of fish habitat unless such impacts have been authorized by Fisheries and Oceans Canada. The habitat protection provisions also apply to the ongoing operation, modification, maintenance or other works or undertakings associated with an existing facility or structure in or near water.

All proponents* who plan to carry out a work or undertaking in or near water are encouraged to design their proposed development* in such a way to avoid impacts to fish and fish habitat. When it is uncertain if such impacts can be avoided, Fisheries and Oceans Canada staff will be pleased to assist proponents and will review the details of the proposed development, as outlined in their development proposal*, to ensure that measures to protect fish and their habitat are considered and included where appropriate.

The Department requires sufficient information not only about the proposed development itself, but also about the aquatic environment, the substrates*, the water column and in some cases the coast, the shoreline and riparian areas* in the vicinity of the proposed development.

When preparing a development proposal, it is important to include as much information as is available (e.g., site surveys, studies, inventories, photographs, presence of fish species, etc.). This information will be used to determine whether there are any potential impacts to fish and their habitat and if alternative development designs or additional fish and fish habitat protection measures can be applied to avoid or minimize such impacts. Potential impacts on fish or their habitat may include, for example, modifying the bed or banks of a water body or watercourse, creating barriers that prevent fish migration, reducing the water flow or destroying vegetation in coastal areas or destroying deep cold corals.

The regulatory decision-making process is made easier when the risks to fish and fish habitat are well understood and there is sufficient information about the proposed development and the aquatic environment. When the risks to fish and fish habitat are considered to be low, a development proposal can proceed with minimal regulatory review. A development proposal may require a more detailed review and possibly a Fisheries Act authorization when it is considered to have moderate to higher risks to fish and fish habitat.

The Department has developed Operational Statements to streamline the review process for a series of routine activities that are considered low risk to fish and fish habitat. Operational Statements provide advice on ways to protect fish and fish habitat when carrying out specific works or undertakings in or near water. By applying an Operational Statement, a proponent can be sure that fish and fish habitat are protected without requiring a review from the Department. Please refer the Department's web site at: (http://www.dfo-mpo.gc.ca/habitat/habitat-eng.htm) to review the list of activities that are covered by Operational Statements. If you find that an Operational Statement applies to your proposed development, you are encouraged to follow the Operational Statement and submit a notification form to the Department. In this case, it is not necessary to send your development proposal for a more detailed review.

Please note that you are required to respect all municipal, provincial, territorial or federal legislation that applies to the work being carried out in relation to your proposed development. In the event that you are working in a province where there is joint referral process between provincial agencies and Fisheries and Oceans Canada, you are also encouraged to contact the province with your proposed development plans.

This document is divided into the following five sections:

• Section A: Contact Information for Proponent, Contractor and Consultants, whichasks for contact information for the proponent of the proposed development;
• Section B: Location of the Proposed Development, which asks for information onthe physical location of the proposed development;
• Section C: Description of the Aquatic Environment, which asks the proponent to describe the components of the aquatic environment at and in the vicinity of the proposed development;
• Section D: Description of the Development Proposal, which asks the proponent to describe the nature and scale of all of the components of the proposed development including fish and fish habitat protection measures; and
• Section E: Glossary of Terms defines some of the technical terms used throughout this document.

The review of the development proposal will be more efficient when you submit a complete set of information, as outlined in this Guide. If you have any questions regarding the nature of the information described this Guide, please contact your local Fisheries and Oceans Canada office. Office contact information can be accessed from the Department's web site at http://www.dfo-mpo.gc.ca/habitat/regions/index-eng.htm. Please use this link to find mailing information to submit your development proposal to a Fisheries and Oceans Canada office for review.

A) Contact Information for Proponent, Contractor and Consultants¹

Provide the name, mailing address, phone and fax numbers and email address for each of the following, if applicable:

• Proponent, for example the landowner, company, association, etc.
• Contractor in charge of carrying out the work described in this development proposal
• Consultant to whom staff can address technical questions, for example, an engineer or biologist

B) Location of the Proposed Development

Provide the following information:

• Nearest community (City, Town, Village)
• Municipality, District, Township, County, Province
• Name of the watercourse(s) or water body(ies) likely to be impacted by the proposed development
• Coordinates of the proposed development (e.g., map, Global Positioning System [GPS] or Universal Transverse Mercator Grid [UTM] coordinates)
• A map or directions (showing access routes, e.g., via road, water, air) to access the proposed development site and indicate if permission is needed to gain access
• In a marine setting, it may be helpful to depict the approximate location of the proposed development on a nautical chart or showing the relation of the site to sea marks or other navigational aids.

C) Description of the Aquatic Environment

In this section, you will describe in more detail the components of the aquatic environment, mainly the fish species present and their habitat, at the proposed development site.

Information about the watercourse(s) or water body(ies) will help staff better understand the receiving environment of the proposed development. More detailed and technical information may be required if there is uncertainty about the potential impacts or the sensitivity of the fish species and their habitat in and around the proposed development site.

Photographs of the proposed development site, both upstream and downstream of the site, the adjacent banks, shoreline areas and the lake, river or marine substrates are always beneficial (see section C.3 Drawings or Photographs of the Aquatic Environment).

C.1 TYPE OF WATERCOURSE, WATER BODY

Describe the type of watercourse(s) or water body(ies) that you will be working in or near, by referring to the three following categories:

• Freshwater* systems; specify one of the following: rivers, streams, creeks, lakes, reservoirs, ponds or wetlands
• Estuary*; specify if it is bay, fjord, sound, etc.
• Coastal and marine*; specify if it is a bay, cove, beach, brackish pond, mud flat, salt marsh, upwelling, etc.

C.2 BIOPHYSICAL CHARACTERISTICS OF THE SITE

Information about the biophysical characteristics at the proposed development site is needed to determine how changing those elements, features or characteristics may affect the various ecological functions and productivity of the aquatic ecosystem.

This subsection describes in more detail those biophysical characteristics that are requested, be it in fresh, estuarine, coastal or marine waters. In freshwater, the features that require description include the waterway width, the nature of the flow, the type of substrate, the depth, fish species and fish habitat present, including aquatic and riparian vegetation. In the coastal and marine environment, the biophysical features are similar to those in freshwater, especially in coastal areas, however some specific considerations have to be addressed such as marine vegetation, tides, offshore currents.

Channel width

Determine the average width of the channel from the high water marks* (from one bank to the other) at the proposed site.

Type of flow

• Specify if the flow is controlled (e.g., by a dam) or if it is natural
• Indicate if the flow is permanent (wet all year) or is intermittent (is only wet seasonally, during spring thaw conditions or after heavy rain)
• In a marine setting, describe the offshore currents, the time of year and weather conditions that influence the characteristics of the flow

Tides

In coastal and estuary waters, describe the tidal range and the normal mean low and high tides at the proposed site.

Water depth

Determine the average depth of water at the proposed development site. In the marine environment, it is more relevant to provide the minimum and maximum depth and the slope of the sea floor, if possible.

Substrate type and density

A combination of substrate* types can be present on the bed of the watercourse or the water body.

• Describe the predominant substrate type (e.g., bedrock, boulder, cobble, gravel, etc.) of the bed of the watercourse(s) or water body(ies) at the proposed development site
• Indicate the relative density of the types of substrate, for example, the site is 60% bedrock, 20% sand and 20% gravel.
• Wherever possible, map the substrate types at the proposed development site

Aquatic (freshwater, marine or estuary) vegetation type and density

• Indicate the predominant types of aquatic vegetation at the proposed development site. This includes vegetation that is rooted into the bed of the watercourse or water body and may emerge from the water, remain completely submerged in the water or float on the surface of the water.
• Indicate the relative composition of the vegetation, for example, if generally the site is 80% eelgrass and 20% algae.
• In the freshwater environment, indicate the predominant type of riparian* vegetation (trees, shrubs, grasses, sedges or reeds) that are adjacent to the watercourse(s) and water body(ies) and the density of the vegetation.

Other aquatic organisms

• In the coastal and marine environment, this information may not be relevant when the depth of the proposed development site is deeper than the enlightened zone. Therefore, indicate the presence of submerged living structures and the type of coral (sponge, mussel) if they are in or near the vicinity of the proposed development site.

Presence of fish* species

Whenever possible, identify the fish species that are known or suspected to be in the area of the proposed development site. This can be determined either by fish sampling, by existing information (e.g., previously documented in reports or databases), by asking provincial or territorial agencies or by knowledge of the fishing activity (e.g., recreational, commercial or Aboriginal) in the area. Contact the appropriate provincial or territorial agency for a fish collection permit prior to starting any fish sampling work.

• Identify fish species by their scientific name or their common name. Refer to the table below for some examples of both the scientific and common names of fish species. You may also access the www.fishbase.org/search.php web site, which is a useful tool to find the scientific name of fish species.

Scientific name (Genus + species)	Common name
Homarus americanus	American lobster
Salvelinus alpinus	Arctic char
Clupea harengus harengus	Atlantic herring
Anoplopoma fimbria	Black cod
Mytilus edulis	Blue mussel
Salvelinus fontinalis	Brook trout
Oncorhynchus kisutch	Coho salmon
Crassostrea virginica	Eastern oyster
Haliotis kamtschatkana	Northern abalone
Oncorhynchus mykiss	Rainbow trout
Placopecten magellanicus	Sea scallop
Perca flavescens	Yellow perch

C.3 DRAWINGS OR PHOTOGRAPHS OF THE AQUATIC ENVIRONMENT

Include in your development proposal detailed drawings, such as plans or maps and photos depicting the natural features of the proposed development site. This may include the upstream and downstream features of the site, the location of riparian and aquatic vegetation, the adjacent land-use type and, if possible, an aerial photo of the site.

In an offshore marine setting, photos may not be useful to depict the proposed development site. Instead describe and/or sketch the specific features of the sea floor which may include the presence of a submarine canyon, cliff, cavern, etc.

D) Description of the Proposed Development

In this section you are asked to describe, in general, what is being proposed. This includes an overview of the nature and scale of all of the components of the proposed development including: the location and dimensions of any structures, the extent (area and/or footprint on land/water); the timing and duration; the work and undertakings to complete the proposed development; and the proposed measures to protect fish and fish habitat.

The information provided in this section may be conceptual at the preliminary review stage however staff may require finalized plans before the proposed development can proceed. Please inform staff if your plans change.

D.1 COMPONENTS OF THE PROPOSED DEVELOPMENT

Provide as much of the following information as possible:

• Permanent structures that will remain in place once the proposed development is completed and temporary structures, those required during the construction, maintenance or decommissioning phases of the proposed development, that are located in or near water. These may include rip rap*, dikes, jetties, embankments, coffer dams, dams, diversion works, canals, water intakes, outlets, culverts, bridges, piers, docks, launching ramps, breakwaters or access routes. Provide the dimensions for each structure.
• The activities required to carry out the proposed development. Examples of activities may include land clearing, excavating, grading, infilling, blasting, dredging, installing structures, draining or removing debris from water.

Specify if your proposed development involves the withdrawal of water (e.g., the use of water intake structures) and indicate the expected changes to the natural hydrological condition (e.g., the timing and volume or rate of discharge of water flow) of the watercourse(s) or water body(ies).

D.2 METHODS, MATERIALS AND EQUIPMENT

In this section, explain how the proposed development (i.e., physical structures and activities) will be carried out. The methods may be closely related to the activities listed in D.1 and may include temporary diversions, dikes or crossings, draining a watercourse by means of coffer dams, clearing vegetation to access the site, blasting, driving piles, etc.

Indicate the principal materials that will be used to build any structures (permanent or temporary) in or near the water. For example, materials may include gravel, blocks or armour stone (provide the average diameter), concrete (indicate if pre-cast or poured in-water), steel beams or wood.

Indicate the machinery or equipment that will be used in or near water to carry out the proposed development.

D.3 AFFECTED AREA

Indicate the extent of the area (in square metres) that will be affected by both the proposed structures (permanent or temporary) and the activities. The extent of the affected area should include all areas affected by the proposed development including those potential impacts in or on the water, on the shoreline, coast, bank(s) or in the riparian zone.

D.4 PLANS, MAPS OR DRAWINGS

Provide plans, maps or diagrams indicating the high water mark and the location, size and nature (e.g., floating or fixed) of proposed and existing structures, landmarks and proposed activities. This will help staff situate the existing and proposed structures and activities in relation to one another. The plans may be conceptual at the preliminary review stage however staff may require finalized plans before the proposed development can proceed.

In freshwater systems, indicate where the structures and activities will be located in relation to the high water mark*. In a coastal setting, indicate the location of the activities and structures in relation to tidal range and low and high tide elevations.

Wherever possible, delineate proposed modifications or structural footprints on the plans or photographs in relation to existing structures or features as a reference to compare pre- and post-construction conditions at the site. Also, indicate on the diagram the location of any fish and fish habitat protection measures (see Section (D.5)), such as the location of sediment and erosion control features.

These plans, maps or diagrams should be at an appropriate scale to help determine the relative size of the proposed structures and activities, the proximity to the watercourse or water body and the distance from existing structures or landmarks.

D.5 FISH AND FISH HABITAT PROTECTION MEASURES

Describe those measures that will be taken to avoid or minimize any impacts on the aquatic environment, shoreline or riparian areas that may occur while the proposed development is being constructed and during its subsequent operation. Such measures may include using alternative designs and/or locations to avoid negative impacts altogether, installing sediment and erosion control measures, taking measures to prevent damage to the bed or banks, adhering to fisheries timing windows*, using appropriately sized screens on water intakes to prevent the mortality of fish or planting vegetation in the riparian area.

Please note that more complex proposed developments that pose a higher risk to fish and fish habitat may require additional measures to protect fish and fish habitat that staff will discuss with you.

D.6 IMPLEMENTATION SCHEDULE

Indicate the proposed start and end date for the proposed development.

D.7 LIFE EXPECTANCY

Indicate the expected life span of any proposed structure(s).

E) Glossary of Terms

Development proposal is a document prepared by a landowner or proponent consistent with the information requirements outlined in this Guide that describe their plans for development in or near water. The development proposal should include an overview of the main components of the proposed development including the location and dimensions of any proposed structures, the extent of the affected area, the implementation schedule and the duration of the activities, etc. The proposal is reviewed by Fisheries and Oceans Canada staff to assess the impact of the proposed development on fish and fish habitat.

Estuary is an area where a freshwater water body or watercourse is connected with the sea or ocean, and saltwater mixes with fresh water. An estuary is largely influenced by tidal fluctuations and habitat for salt tolerant aquatic species.

Fish as defined in the Fisheries Act, includes parts of fish, shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals and the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.

Fish habitat as defined in the Fisheries Act, includes the 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.

Freshwater includes water systems that contain very little dissolved salt including rivers, streams, creeks, lakes, reservoirs, ponds, wetlands, etc.

Fisheries timing windows indicate when it is appropriate to proceed with the proposed development in water bodies or watercourses. These timing constraints typically coincide with critical periods in the life cycle of fish (reproduction, incubation and nursery activities).

Habitat Protection Provisions include the sections of the federal Fisheries Act that pertain to the powers and authorities to regulate impacts of works or undertakings to fish and fish habitat. These provisions include that prevent anyone from carrying out any works or undertakings in or near water that prevent fish passage, reduce flow needs of fish, results in the destruction of fish by means other than fishing or results in the harmful alteration, disruption or destruction of fish habitat.

High water mark indicates the usual or average level to which a body of water rises at its highest point and remains for sufficient time so as to change the characteristics of the land. In flowing waters (rivers, streams) this refers to the active channel or bank-full level which is often the 1:2 year flood flow return level. In inland lakes, wetlands or marine environments it refers to those parts of the water body bed and banks that are frequently flooded by water so as to leave a mark on the land and where the natural vegetation changes from predominately aquatic vegetation to terrestrial vegetation. For reservoirs this refers to normal high operating levels.

Coastal and marine environment comprises the seas and oceans. A coast may take many forms, namely beaches, brackish ponds, mud flats, salt marshes, etc.

Proponents A person, company or corporation that has submitted, or plans to submit, a development proposal.

Proposed development is what is being proposed. This includes all components of the proposed development with potential impacts to fish and their habitat.

Riparian areas are the vegetated areas adjacent to a watercourse or water body that directly contribute to fish habitat by providing shade, cover and food production areas. Riparian areas are important because they stabilize stream banks and shorelines. To minimize disturbance to fish habitat and prevent bank erosion, it is important to retain as much riparian vegetation as possible, especially the vegetation directly adjacent to the watercourse or water body.

Rip rap is the placement of rocks along the water's edge to support culverts, piers, or other structures.

Substrate refers to the bed of a water body or watercourse. The substrate of a water body or watercourse may be bedrock, boulder, cobble, gravel, sand, silt, clay, mud, vegetative matter, etc.

Watercourse is a general term that refers to riverine systems such as creeks, brooks, streams, rivers, etc.

Water body is a general term that refers to ponds, bays, lakes, estuaries, marine areas, etc.

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1 Information about the above-noted proposed work or undertaking is collected by Fisheries and Oceans Canada under the authority of the Fisheries Act for the purpose of administering the fish habitat protection provisions of the Fisheries Act. Personal information will be protected under the provisions of the Privacy Act and will be stored in the Personal Information Bank DFO-OCE-010. Under the Privacy Act, individuals have a right to, and on request shall be given access to any personal information about them contained in a personal information bank. Instructions for obtaining personal information are contained in the Government of Canada's Info Source publications available at www.infosource.gc.ca or in Government of Canada offices. Information other than “personal” information may be accessible or protected as required by the provision of the Access to Information Act.