Environmental Regulatory Compliance for
Highway Development and Operations


Fish Habitat

About Fish Habitat Protection

The Fisheries and Oceans Canada Habitat and Enhancement Branch is responsible for the protection of fish and fish habitat in ‘waters frequented by fish’. This includes the restoration of fish habitat, salmonid enhancement programs, integrated resource management planning, and community and public education programs. The Branch fulfills its mandate in accordance with provisions of the Fisheries Act, the National Policy for the Management of Fish Habitat (1986), and the Canadian Environmental Assessment Act.  The Fisheries Act is administered in British Columbia by both the Fisheries and Oceans Canada (DFO) and the provincial Ministry of Environment, Lands and Parks (MELP). DFO retains responsibility for the management and protection of all fish habitat, marine fish, shellfish, marine mammals and Pacific salmon. By agreement, the responsibility for the management and protection of all freshwater fish and anadromous species other than salmon (e.g., steelhead, cutthroat trout and Dolly Varden char) is delegated to MELP; however, DFO maintains authority for the determination and authorization of harmful alteration, disruption or destruction of all fish habitat.

The guiding principle of DFO’s Fish Habitat Policy is to ensure “no net loss” in productive capacity of fish habitat. This is achieved by balancing unavoidable habitat losses with habitat replacement on a project-by-project basis. As well, DFO has an overall goal to achieve a “net gain” of habitat by: (1) habitat conservation (i.e., protection); (2) habitat restoration; and (3) habitat development.

The Fisheries Act contains a number of powers to deal with the harmful alteration, disruption or destruction (HADD) of fish habitat, destruction of fish, obstruction of fish passage, and deposit of deleterious substances. Although not defined in the Fisheries Act, a HADD is defined by DFO as “any change in fish habitat that reduces its capacity to support one or more life processes of fish” (e.g., spawning, nursery, rearing, feeding, overwintering, migration). It is an offence under the Fisheries Act to destroy fish habitat unless DFO has issued a subsection 35(2) letter of authorization to “alter, disrupt or destroy” fish habitat. The terms and conditions of the authorization typically accompany it. Pursuant to Section 5 of the Canadian Environmental Assessment Act, an environmental assessment must be completed before the DFO can issue an authorization.

DFO has developed Operational Statements (OS) for routine low-impact works. The OS outline measures and conditions for avoiding HADDs and thereby ensuring compliance with the Fisheries Act. Proponents are not required to submit their proposal for review by DFO when they incorporate the measures and conditions outlined in the OS into their plans. MoT projects that are covered by an OS do not require a subsection 35(2) letter of authorization. (see below for excerpts from, and links to, these Operational Statements)

Generally, MoT is responsible for all aspects of the proposed development activity including the provision of appropriate information on fish and fish habitat, and the development of appropriate mitigation and compensation measures.

The Process for Ministry of Transportation and Infrastructure Projects

  1. Determine if fish habitat will be affected.

    Determine the potential for waters in the vicinity of the proposed work to be either fish habitat by consulting available literature and by speaking with the MoT Regional Environmental Manager.

  2. If fish habitat will be affected, retain a fisheries consultant to complete a fish habitat overview and/or impact assessment.

    A fish and fish habitat overview (a reconnaissance level study) includes:

    • a summary of existing fishery data in the vicinity of the proposed development;
    • identification of resource values;
    • potential activity impacts for each design alternative;
    • avoidance opportunities;
    • descriptions of conceptual mitigation and compensation options to meet DFO’s “no net loss” requirements; and
    • recommendations for a preferred corridor option from a fisheries resource perspective.

    The objective of the reconnaissance level study is impact avoidance.

    An impact assessment is more detailed and includes:

    • pre-construction stream assessment information;
    • identification of resource values;
    • impacts associated with design options;
    • avoidance options;
    • an evaluation of design alternatives for each stream crossing;
    • an evaluation of mitigation options for each stream crossing; and
    • recommendation(s) for a preferred design option from a fisheries resource perspective.

  3. Identify mitigation measures.

    Mitigation measures may include:

    • defining timing windows for work in watercourses to minimize interference with fish migration and spawning;
    • utilizing the least harmful equipment, materials and construction methods;
    • ensuring fish passage during and after construction;
    • ensuring minimum in-stream flow rates during construction of works necessitating obstruction of flows (e.g., culverts);
    • implementing measures to protect water quality and fish habitat and to control sediment release from construction sites; and
    • approaches to the treatment of highway runoff.

  4. Identify compensation measures

    Habitat compensation generally involves replacing the productive capacity of habitat which has suffered a HADD with newly created habitat or improving the productive capacity of some other natural habitat. Habitat compensation options are selected on a case-by-case basis. Compensation is not an option for loss of habitat productive capacity due to deposition of deleterious substances in any type of habitat.

  5. Apply for a 35(2) Authorization

    If a HADD is unavoidable, the work can only proceed after it has been authorized by DFO. MoT or a fisheries consultant must prepare an application for a 35(2) authorization and submit it to the regional DFO Habitat and Enhancement Branch. DFO will rely on the information provided in the application as the basis for their authorization. DFO staff may use the following references in preparing the Authorization: Practitioners Guide to Writing Subsection 35(2) Fisheries Act Authorization, Practitioners Guide to Habitat Compensation.


      To make the Authorization process as efficient as possible:

      • DFO’s information requirements should be agreed upon at the outset;
    • The information should be compiled by a qualified environmental professional;
    • Project contacts with DFO should be limited – ideally one or two people – to reduce confusion and repetition;
    • The fish habitat impact, mitigation, and compensation information should be close to final. If there are any significant changes, a new Authorization will be required.

Regional Operational Statements

“A series of Operational Statements (OS) has been developed to streamline the Habitat Management Program’s (HMP) regulatory review of low risk activities. The OS outline measures and conditions for avoiding the harmful alteration, disruption and destruction (HADD) to fish habitat and thus be in compliance with subsection 35(1) of the Fisheries Act. Proponents are not required to submit their proposal for review by Fisheries and Oceans Canada (DFO) when they incorporate the measures and conditions outlined in the OS into their plans.”

If a project complies with the conditions specified in the OS, it may proceed without review by DFO.

“Please notify DFO 10 working days before starting your work by filling out and sending the Pacific Region Operational Statement notification form directly to DFO Regional Headquarters. ... It is recommended that you keep a copy of the Operational Statement at the work site to demonstrate to Habitat and Fishery Officer staff that the conditions and measures, as outlined in the OS, are being followed.”

 

Prohibition of the Deposit of Deleterious Substances into
Waters Frequented by Fish

Subsection 36(3) of the Fisheries Act prohibits the deposit of deleterious substances into water. There is no provision to authorize the deposit of deleterious substances except by Regulation or an Order in Council. Currently, there are no regulations relevant to highway environmental compliance that authorize the deposit of deleterious substances. Environment Canada is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act.

Subsection 38(4) of the Fisheries Act confers a duty to report a deposit of deleterious substance in water frequented by fish and subsection 38(5) confers a duty to prevent, counteract, mitigate or remedy the effects of a deleterious substance in or near fish habitat.

Related websites

Fisheries Act

DFO Pacific Region Habitat and Enhancement Branch

Project Review Information Requirements

References Regional DFO staff may use in preparing the Authorization

BC Ministry of Environment – Standards and Best Practices for Instream Works

BC Ministry of Environment – A User’s Guide to Working in and Around Water

Forest Practices Code – Fish-stream Crossing Guidebook

Forest Practices Code – Fish-stream identification guidebook


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