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Share and view ideas: Potential amendments to the Aquatic Invasive Species Regulations pertaining to authorities for the deposit of deleterious substances

Current status: Open

Opened on January 5, 2024 and will close to new input on March 31, 2024.

Fisheries and Oceans Canada (DFO), led by the Aquatic Invasive Species National Core Program (AIS NCP), is planning potential amendments to the federal Aquatic Invasive Species Regulations (AIS Regulations). These amendments are needed to improve the efficiency and environmental protections of authorized control activities for aquatic invasive species (AIS) that use pesticides (referred to as “pest control products” under the Pest Control Products Act).

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Who is the focus of this engagement

DFO is committed to developing regulations and policies through engagement and early discussions with Canadians. We are engaging with the public, Indigenous Peoples, partners, and stakeholders to share information and seek early input on 3 changes to the AIS Regulations being considered.

All Canadians are invited to participate in the online engagement. These amendments may be of a particular interest to:

Those may include:

Background

DFO mandate

DFO is responsible for the administration and enforcement of subsections 36(3) to (6) of the Fisheries Act for subject matters such as the control or elimination of any AIS or aquatic species that represent a pest to fisheries (“Designation Order” 2014). This responsibility requires DFO to regulate the use of chemical substances (including pesticides) when used for AIS control purposes which it does through the AIS Regulations (2015) that were established under the Fisheries Act.

The federal AIS Regulations enable the Minister of Fisheries and Oceans Canada and specific federal, provincial or territorial ministers (section 18) to:

Pesticides must be registered or otherwise authorized for use by Health Canada’s Pest Management Regulatory Agency (PMRA) under the Pest Control Products Act (PCPA) before their use against an AIS can be authorized (paragraph 21(b) of the AIS Regulations).

What are aquatic invasive species?

In the context of this engagement, AIS are defined as any non-indigenous aquatic plant or animal species introduced by human activity outside of its natural or past distribution. Their introduction and spread may negatively impact:

Impacts from AIS on the environment include:

AIS can also cause socio-economic damages by impacting:

Some AIS can also cause damage to infrastructure, for example by clogging intake structures (such as reservoirs or pipes) in power stations and water treatment plants.

How are pesticides currently used to control AIS?

There are a number of control options available to federal, provincial or territorial governments and stakeholders. These options can be considered when responding to the detection of an AIS. Options may include a combination of:

In some situations, it is necessary to use pesticides to control an AIS and prevent their introduction, establishment or further spread in Canadian waters.

Pesticides registered in Canada, whose registered uses include uses against aquatic invasive species can be authorized under the AIS Regulations to control an AIS. Examples include:

Under the Fisheries Act, it is illegal to deposit, directly or indirectly, any deleterious substance into Canadian waters frequented by fish unless authorized to do so.

Anyone who wishes to use a pesticide to control an AIS must receive an authorization under the AIS Regulations (subsection 19(3)) from DFO or from the appropriate provincial or territorial regulator. In relation to the Crown’s duty to consult, these authorizations from DFO are subject to consultations with Indigenous groups whose Aboriginal and treaty rights may be affected by a specific project. If a project is approved, the authorization will include a number of conditions, in addition to those imposed under the PCPA, to ensure that the pesticide will be used as intended in an effective manner to manage impacts to the environment or human health.

Description of proposed changes

DFO’s AIS NCP is responsible for administering the federal AIS Regulations and for leading federal efforts against AIS in Canada. The AIS NCP is proposing to revise the AIS Regulations to address specific gaps and to further improve the efficiency and environmental protections of authorized projects that use pesticides to control AIS.

Your ideas and input are sought around 3 potential amendments to the AIS Regulations within the scope of this engagement. These proposed amendments seek to:

  1. expand the scope of section 21 to provide authority to deposit substances, such as “deactivating agents, reactants, agents to remove taste and odours and utility modifier adjuvants” when an authorized pesticide is deposited and where the use of the substance is referred to on the pest control product approved label, in order to mitigate potential adverse impacts of the pesticide on the environment
  2. obtain the authority for a regulator to amend, suspend, or cancel an authorization it has issued under subsection 19(3) to reduce the administrative burden on persons to whom an authorization is issued and regulators
  3. strengthen accountability by specifying that conditions of an authorization issued under subsection 19(3) must be followed by persons to whom an authorization is issued when using authorized classes of deleterious substances, including pesticides, to control an AIS

The rationale for the proposed amendments is explained in the sections below.

Feedback provided on other aspects of the AIS Regulations, including the existing power to authorize the deposit of deleterious substances to control AIS and DFO’s process to authorize projects, is beyond the scope of this engagement, but may be considered for future modifications to the AIS Regulations.

Proposed modification 1

Provide authority to deposit substances, such as “deactivating agents, reactants, agents to remove taste and odours and utility modifier adjuvants” when an authorized pesticide is deposited and where the use of the substance is referred to on the pest control product approved label, in order to mitigate potential adverse impacts of the pesticide on the environment.

Issue

Health Canada-approved labels of registered pesticides may list a number of substances that could be used together with the pesticide itself to help mitigate impacts or improve its effectiveness. Such substances currently include:

These substances can help make sure that pesticide treatments used to control AIS can be carried out effectively.
Deactivating agents, agents to remove taste and odours, reactants, and utility modifier adjuvants are not pesticides and are therefore not registered or otherwise authorized under the PCPA. Therefore, their use cannot be authorized currently under the AIS Regulations.

Example

Rotenone is one of the only pesticides that is registered in Canada for the control of invasive fish, and it is an important tool for the management of AIS in Canada. When pesticides containing rotenone are used in lotic waters (flowing waters such as rivers), the pesticide label references the use of potassium permanganate (KMnO4) with the pesticide. Potassium permanganate deactivates the rotenone before it migrates downstream of the area being treated to prevent unintended impacts to the surrounding aquatic environment.

In other cases, pest control product label directions:

Proposed amendment

The AIS Regulations were created to provide safe and effective tools to control AIS across Canada. The absence of a process to authorize the use of these other substances in conjunction with the pesticides whose labels refer to their use, can undermine the use of pesticides to control AIS.

DFO proposes updating section 21 of the AIS Regulations to add all other substances referenced on the labels of pesticides, such as “deactivating agents, reactants, agents to remove taste and odours, and utility modifier adjuvants”, to the list of approved chemical substances when using a pesticide only. The use of these substances would only be authorized when the use of the pesticide is also authorized under the AIS Regulations and when the substance is referenced on the Health Canada-approved label to be used with the pesticide.

This proposed amendment would give DFO and other regulators under the AIS Regulations the ability to authorize the use of other substances referred to on product labels of pesticides, when their use is appropriate. Proposed amendments will, therefore, harmonize the AIS Regulations with requirements on the pesticide labels, so that all existing regulatory safeguards apply to AIS control projects.

Proposed modification 2

Provide authority for a regulator to amend, suspend or cancel an authorization it has issued under subsection 19(3) of the AIS Regulations. This would reduce the administrative burden on persons to whom an authorization is issued and regulators.

Issue

A second issue relates to the absence of a process in the AIS Regulations to amend (i.e., modify), suspend or cancel an authorization issued under the AIS Regulations.

Currently, project applicants wishing to modify their subsection19(3) authorization permitting their use of pesticides that has already been approved by DFO, must submit a new project proposal to DFO for review and re-approval, regardless of the extent of the changes being proposed. A similar process must also be used for project applicants who wish to postpone their projects by suspending their authorization.

DFO and other regulators also lack the ability under the AIS Regulations to suspend or cancel a project proposing to use pesticides that they have already approved under the AIS Regulations.

Example

Projects proposing to use pesticides to control AIS are complex and require careful planning, coordination and execution. These projects may take place in remote locations that are not easily accessible, and their effectiveness may depend on circumstances that are difficult to predict (weather, water temperatures, etc.). Projects can also evolve over time in unexpected ways causing delays that require changes to the original project proposal (for example, the spread of AIS beyond the proposed project area). Projects may also need to be suspended or canceled for example due to unforeseen extreme weather events (floods, drought, etc.) or due to a non-compliance issue that risks damage to fish and fish habitat.

Proposed amendments

DFO suggests updating the AIS Regulations to give DFO and regulators that are prescribed under the AIS Regulations the authority to amend, suspend or cancel authorizations issued under subsection 19(3) of the AIS Regulations. DFO already has the authority to amend, suspend or cancel other project approvals issued under the Fisheries Act, for projects potentially causing the death of fish or the harmful alteration, disruption and destruction of fish habitat. The proposed changes would provide equal authority to DFO and regulators prescribed under the AIS Regulations over projects proposing to use pesticides to control AIS that have been authorized under the AIS Regulations.

The process to amend, suspend or cancel a project approval could be initiated by the Minister of Fisheries and Oceans Canada, other regulators prescribed under the AIS Regulations or authorization holders. Any request to amend, suspend or cancel an authorization issued for a project proposing to use pesticides to control AIS would be subject to a review similar to the initial application, as appropriate. When amending a project approval, the Minister would set out the new or revised conditions in the notification to the project applicant. In order to suspend a subsection 19(3) authorization, the Minister could include the date the work is allowed to resume, or state that the project is suspended until the applicant submits a request to update their proposal.

In the case of a project cancellation, the applicant would require a new project proposal be approved in order to continue the project and any associated activities related to the use of pesticides.

Proposed modification 3

Strengthen accountability by specifying that conditions of an authorization issued under subsection 19(3) must be followed by persons to whom an authorization is issued when using authorized classes of deleterious substances, including pesticides, to control an AIS.

Issue

When DFO or other regulators prescribed under the AIS Regulations issue a project approval to use pesticides to control AIS, the authorization may include a number of conditions specifying how the project must be conducted. These conditions are referred to as “directions for their deposit” in subsection 19(3) of the AIS Regulations. Project applicants must obey all conditions in order to make sure their project is conducted safely, effectively and in compliance with the pollution prevention section of the Fisheries Act (section 36).

Subsection 30(1) of the AIS Regulations specifies that every person to whom a direction is given under subsection 22(2), 26(1) or 27(1) of the AIS Regulations must follow the requirements specified in the direction, and are prohibited from engaging in any activity contrary to the requirements specified in the direction. This section does not include subsection 19(3) and this gap could be misinterpreted to incorrectly signify that persons to whom an authorization is issued are not required to follow conditions of authorizations issued under subsection 19(3).

Sufficient authorities already exist under the Fisheries Act to enforce conditions of authorizations issued under subsection 19(3) of the AIS Regulations. For example, a failure to respect these conditions could invalidate the legality of an authorization. This would expose a person to whom an authorization is issued to the prohibition against the deposit of deleterious substances (subsection 36(3)). However, for greater clarity it is recommended to amend the existing regulations to make it clear that a failure to respect the conditions of an authorization issued under subsection 19(3) of the AIS Regulations is, in and of itself, an offence under the regulation.

Proposed amendments

Clear requirements for persons to whom an authorization is issued to respect conditions of authorizations for projects intending to deposit pesticides are necessary to ensure that those projects are carried out properly and do not cause unacceptable harm to Canadian ecosystems.

DFO proposes to update subsection 30(1) of the AIS Regulations to make it clear that directions or conditions outlined in a project approved under subsection 19(3) must be followed by persons to whom an authorization is issued and are enforceable by regulators.

Have your say

Your ideas and input are sought around these 3 proposed amendments to the AIS Regulations. Feedback obtained through this process will be compiled and published in a “What we’ve heard report” that will be accessible to the public. This input will be used to inform the formal regulatory amendment process that will be initiated when public engagement is completed. Once the draft AIS Regulations have been developed, they will be published in the Canada Gazette Part 1 for a 30-day public comment period. These changes will be carried out according to the Cabinet Directive on Regulation from the Treasury Board of Canada Secretariat.

Send us an email

Email us your ideas or comments to make yourself heard.

Participate by mail

Send a letter with your ideas and input (see Contact us below).

Attend a meeting

Virtual national information sessions are being held. Dates and software for the information sessions:

Virtual national information sessions
Session Date and time Meeting software
Virtual information session #1 (bilingual) February 28, 2024 Zoom (contact us to register)
Virtual information session #2 (bilingual) March 6, 2024 Zoom (contact us to register)

Contact us

AIS National Core Program, Biodiversity Management, Programs Sector
Fisheries and Oceans Canada
200 Kent Street
Ottawa, ON K1A 0E6
DFO.NationalAIS-EAENational.MPO@DFO-MPO.GC.CA

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