L-2 - What You Should Know About Fish Habitat and A Class Authorization System for the Maintenance of Agricultural Municipal Drains in Ontario  

Fisheries and Oceans Canada (DFO) recognizes the important contribution that agriculture makes to the economy and that drains, associated with this industry, provide fish habitat that contributes to our nation's fisheries resource. Agricultural drain construction and maintenance is regulated under the Ontario Drainage Act and the protection of fish habitat is regulated under the federal Fisheries Act. To strike a balance between the requirements of these two Acts, namely maintaining municipal drains and protecting fish and fish habitat, DFO developed a Class Authorization System to streamline the review and approval process related to impacts of drain maintenance activities on fish habitat.

Fisheries Act

The Fisheries Act provides for the protection of fish and fish habitat. Under the Act, no one may carry out any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat (HADD) unless authorized by the Minister of Fisheries and Oceans Canada. In most instances where a work or undertaking will result in a HADD, DFO must also conduct an assessment under the Canadian Environmental Assessment Act (CEAA) prior to issuing an authorization under the Fisheries Act. However, the maintenance of existing physical works (such as drains) can be excluded from the requirements of CEAA in accordance with the Exclusion List Regulations. Therefore, while drain maintenance works that have the likelihood of impacting fish habitat do not require an environmental assessment under CEAA, they may require a review under the Fisheries Act. Persons having a Fisheries Act authorization for the HADD associated with the proposed maintenance may proceed without being liable under the Act provided they comply with the conditions of the authorization. For more information on fish habitat and Fisheries Act Authorizations, refer to the Working Around Water? series introductory fact sheet, What You Should Know About Fish Habitat and fact sheet #L-1 of the same series, Obtaining a Section 35 Fisheries Act Authorization.

Species at Risk Act

The federal Species at Risk Act (SARA) was created to prevent wildlife species from becoming extinct. Under SARA, there are three prohibitions (Section 32, 33 and 58) that require consideration prior to DFO issuing a Fisheries Act Authorization.

A number of aquatic species have been identified under SARA and should be considered prior to commencing work in and around water. In addition to meeting the requirements of the Fisheries Act, all projects in and around water must be in compliance with the prohibitions of the Species at Risk Act. If a project is proposed in an area where there are species at risk, contact should be made with the local Conservation Authority or DFO office to ensure compliance with SARA. More information on SARA and listed species can be found at: www.sararegistry.gc.ca

Applying for a Class Authorization

The process of applying for a Class Authorization is straight forward provided that the work being proposed is the maintenance of a municipal drain that has been classified. The proponent (usually the Drainage Superintendent) completes a notification form for each drain maintenance project and submits these to the office responsible for classifying the drain, usually the local Conservation Authority. Forms are available from Conservation Authorities, DFO’s Ontario - Great Lakes Area District Offices or the Drainage Superintendents of Ontario website (www.dsao.net). Proponents will normally receive the Class Authorization, issued by DFO, via the Conservation Authority shortly after submitting the notification form. Some terms and conditions (such as in-water work timing guidelines) can be adapted to suit regional biological differences related to critical periods during the life cycle of fish species present (e.g. spawning). Each Class Authorization can be tailored to fit a particular region using the knowledge and expertise of biologists from various resource management agencies and of Drainage Superintendents in that area. Therefore, some of the terms and conditions in different authorizations of the same Class may vary depending on where in the province the work will be completed.

The Benefits of a Class Authorization System

The Class Authorization System is a streamlined Fisheries Act review and approval process for drain maintenance activities.This streamlined approach allows for drain maintenance in accordance with the Drainage Act while protecting fish and fish habitat. The process identifies which drains will require individual review and which will receive a Class Authorization. In most cases, a Class Authorization can be issued for several drains of the same type and can be applied to any drain that has been classified. In many areas most drains have already been classified using a standardized fish habitat evaluation technique.

When Drainage Superintendents are planning maintenance activities, additional benefits resulting from the Class Authorization System include:

• Work can be completed for many separate projects on less sensitive drains within the same class provided that the conditions outlined in the Class Authorization are followed.
• Required mitigation measures are determined in advance.
• Sensitive drains requiring a site-specific Fisheries Act review can be identified in advance to allow sufficient time to determine project-specific mitigation and compensation if necessary.

How do Drain Maintenance Activities Affect Fish Habitat?

From a drainage perspective, all drains serve the same function - to remove excess water from the land. When viewed with fish habitat in mind, however, drains can and do differ according to the type and sensitivity of their habitat. The Fisheries Act defines fish habitat as spawning grounds, nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes. Fish habitat can be described as components of the aquatic environment (e.g. shoreline and associated vegetation) that provide areas for reproduction, food and cover, as well as the migration corridors that link these areas. Maintenance activities in most drains can harmfully alter, disrupt or destroy fish habitat by changing or removing riparian vegetation (plant life beside the water's edge), altering bottom substrate composition and changing width-to-depth ratios of the waterway. In addition, while the work is in progress, fish migration can be blocked and water quality degraded. Fish and/or fish habitat in some drains can be very sensitive to routine drain maintenance practices. After a disturbance, these drains may take a long time to rebound before once again providing healthy productive fish habitat. Some drains may never rebound, and over time, the fish populations and habitats that were there previously may be lost completely. In other drains fish and fish habitat are more resilient to disturbances. Resilient species and habitats are more likely to recover from maintenance work within a relatively short time period if mitigation measures to minimize the potential impacts to fish habitat are employed. These include such measures as avoiding work during fish spawning and nursery times, limiting the extent of bottom clean-out and minimizing the removal of riparian vegetation. Mitigation measures implemented during routine drain maintenance activities may prevent harmful impacts to fish habitat in many drains that contain certain types of fish habitat. Because of this, it was possible to develop a Class Authorization System to streamline the Fisheries Act review and approval process, and to provide standard mitigation measures which are intended to minimize harmful impacts to fish and fish habitat that can be associated with drain maintenance.

The Class Authorization System

To develop the Class Authorization System, drains were classified into six types according to the sensitivity of fish and fish habitat found in the drain and the types of maintenance work typically completed (see facing page). Class Authorizations were created for three of the six drain types that contained fish and fish habitat considered to be more resilient to drain maintenance work. These resilient drains are classified as either type A, B or C and the authorizations developed for a HADD occurring within these drain types are Class Authorization A, B or C, respectively. Each of these authorizations specifies standard mitigation measures to minimize the potential impacts to fish and fish habitat from typical drain maintenance activities. A Drainage Superintendent, as defined under the Drainage Act, in possession of a Class Authorization for the proposed maintenance works, will be in compliance with the Fisheries Act provided the specific conditions of the authorization are followed. Maintenance works in drains with sensitive fish and fish habitat (types D & E) are not covered by the Class Authorization System, but this does not mean that these drains cannot be maintained. Given the sensitivity of fish habitat in type D & E drains, a project-specific review under the Fisheries Act may be required to determine the appropriate mitigation methods and, if required, the appropriate compensation measures. Drains classified as type F are intermittent and typically dry for more than two consecutive months. Works within these drains generally will not result in a HADD. Therefore a Fisheries Act authorization is not required, provided the work is conducted when the drain is dry and all disturbed soil is stabilized when the work is completed.


Click to view Table 1: Municipal Drain Classification and Ontario’s Class Authorization System

Classifying Municipal Drains in Ontario

• Many Conservation Authorities in southern and south-eastern Ontario have classified drains based on field data collected and local knowledge. The classified drain types have been mapped for use by the Conservation Authorities, local drainage superintendents and the agricultural community.
• Where a specific attribute used to classify a drain is unknown, the drain is classed as "Not Rated". These decisions are built into the Drain Classification System.
• Drain classifications are updated as new information becomes available.
• The sensitivity of drains can be classified according to the following four characteristics:
  • Flow - Permanent watercourses are more sensitive than intermittent watercourses that are dry for more than two consecutive months.
  • Temperature - Cold/cool water watercourses are more sensitive than warm water watercourses.
  • Fish Species -The presence of sensitive fish species (e.g. trout, bass, sculpin and pike) and fish species identified under the federal Species at Risk Act indicates the presence of a more sensitive habitat.
  • Stability - A watercourse that has not recently undergone a full clean-out has most likely reached a higher state of ecological stability. The combined productivity of riparian vegetation and in-stream habitat components can be easily disrupted by maintenance activities.

Habitat Evaluation Technique References

The following are references of the techniques used in the classification process to determine the drain habitat typing:

• A Simple Method to Determine the Thermal Stability of Southern Ontario Trout Streams. Habitat Management Series fact sheet.
• A Rapid Assessment Technique to Estimate Salmonine Populations in Southern Ontario Streams. Habitat Management Series fact sheet.

Remember to Protect Water Quality

If the proposed work cannot be done in the dry, sediment and erosion control measures should be installed before the project commences. These measures should be designed to effectively contain sediment within the project limits and protect upstream and downstream water quality. During the work phase these measures should be frequently inspected, maintained, and repaired or enhanced as needed.

Tiling-in Drains

Tiling-in or enclosing surface drains is not considered to be a maintenance activity by DFO and is therefore not covered by the Class Authorization System. Enclosing of a permanent or intermittent watercourse or drain often results in the permanent loss of fish habitat and results in a HADD (i.e. destruction of fish habitat by enclosing the drain) and is the least preferred option. In some cases the effects on fish habitat may be considered unacceptable and the proponent will be asked to examine other project options. As set out in our national Policy for the Management of Fish Habitat (1986), proponents should first look at options to relocate or redesign the project or use other mitigation measures to avoid the HADD. It is only in those cases where projects will still result in a HADD, after relocation, redesign, and mitigation and if the impacts to fish and fish habitat are acceptable, that DFO will authorize the HADD. Also, according to DFO's Policy for the Management of Fish Habitat no authorizations will be issued unless acceptable fish habitat compensation is proposed and implemented by the proponent. A proposal to tile-in a drain or watercourse should be discussed with the local Conservation Authority or DFO office to determine if the HADD is acceptable and if a Fisheries Act authorization can be issued. Possession of such an authorization is required to be in compliance with the Fisheries Act when commencing work.

Contacts and Approvals

Keep in mind that approval from one government agency does not guarantee approval from another. Other agencies have legal requirements that may affect projects in and around water. The lead review agency for project proposals and their areas of responsibility (listed below) will assist in determining which agencies need to be contacted for permits and approvals. In Ontario, DFO has formal agreements with other permitting agencies as a means of streamlining the review process. If provincial permits are necessary, the local Conservation Authority or Ontario Ministry of Natural Resources office should be contacted first. All approvals should be obtained before starting work.

Additional Information

Fisheries and Oceans Canada has developed fact sheets, Operational Statements and guides which help people become better informed on ways to avoid impacting fish and fish habitat. For additional information please visit DFO’s national website at: www.dfo-mpo.gc.ca/oceans-habitat/ (choose ‘Infocentre’ then ‘Documents’) or the regional website at: www.dfo-mpo.gc.ca/regions/central/ (choose ‘Publications’). These documents are a good source of information for anyone working in or around water. By listing some common activities and mitigation techniques which should help with project planning, impacts to aquatic communities can be avoided. Specific to drains, the Drain Primer has been developed to explain the necessity of open drains, the need to maintain them and ways to maintain their effectiveness while limiting the impact on the local environment. Two posters have also been developed. One outlines the class authorization process and the other illustrates the review process under the Fisheries Act for the development of an engineer's report. Both of the following posters are available through DFO Ontario offices: Maintenance of Municipal Drains – A Fisheries Act Class Authorization Process for Municipal Drain Maintenance and Repair Activities under the Drainage Act and Streamlining the Fisheries Act Review and Authorization Process During the Development of the Engineer's Report for Drainage Projects Authorized by Sections 4 and/or 78 of the Drainage Act.

Contact Information - Ontario

If the property where the work will be carried out is . . .	Your first contact should be . . .	Your Website is . . .
in the Fathom Five National Marine Park, Bruce Peninsula National Park, Rideau Canal or Trent-Severn Waterway	Parks Canada Agency	www.pc.gc.ca
in a federally-owned small craft harbour	Fisheries and Oceans Canada (DFO) - Small Craft Harbours	www.dfo-mpo.gc.ca/oceans-habitat/
below the high water mark in a public (Crown) land or on a private water lot	Your local Conservation Authority (CA). Where there is no designated CA, contact your local Ontario Ministry of Natural Resources office.	www.conservation-ontario.on.ca www.mnr.gov.on.ca
above the high water mark but within a regulatory flood plain	Your local CA	www.conservation-ontario.on.ca
above the high water mark and on private property	Approvals may be required from your local CA if the structure is within the flood plain or cut-fill regulated line.	www.conservation-ontario.on.ca