Changes to Fisheries Act Now in Force

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Much anticipated amendments to the Fisheries Act came into effect on November 25, 2013. The most substantial of these amendments is the repeal of the prohibition against the harmful alteration or destruction ("HADD") of fish habitat, and its replacement with a new prohibition against "serious harm" to fish and fish habitat.

These revisions were first proposed and passed as part of the two omnibus budget bills introduced in 2012. Before the amendments the Fisheries Act prohibited:

the destruction of fish or fish habitat;
the deposit of deleterious substances in waters frequented by fish;
works or undertakings that result in the harmful alteration, disruption or destruction of fish habitat ("HADD") (s. 35(1)).

In the amendments that recently came in force the habitat protection provisions will be removed and replaced with a prohibition against works, undertakings or activities that result "in serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery, or to fish that support such a fishery."

With this amendment, fish habitat will only be protected if the work or undertaking causes a "permanent alteration" or "destruction" of habitat of fish in one of the three protected fisheries (or a fish that supports one of those fisheries). "Harmful alteration" or "disruption", by itself, will no longer trigger a Fisheries Act violation.

A DFO Fisheries Protection Policy Statement (effective November 2013), states that "serious harm" provision will be triggered in any of the following circumstances:

the death of fish;
a permanent alteration to fish habitat of a spatial scale, duration or intensity that limits or diminishes the ability of fish to use such habitats as spawning grounds, or as nursery, rearing, or food supply areas, or as a migration corridor, or any other area in order to carry out one or more of their life processes; and
the destruction of fish habitat of a spatial scale, duration, or intensity that fish can no longer rely upon such habitats for use as spawning grounds, or as nursery, rearing, or food supply areas, or as a migration corridor, or any other area in order to carry out one or more of their life processes.

Effective November 25, project proponents or operators will be responsible for avoiding and mitigating "serious harm" to fish that are part of or support commercial, recreational or Aboriginal fisheries. When proponents are unable to completely avoid or mitigate this harm, the project will normally require a Fisheries Act authorization for the project to proceed. The Act contains transitional provisions that stipulate that authorizations issued under the previous Act remain valid. However, upon request by a holder of an authorization, the DFO will review that authorization and consider if it can be amended or cancelled.

The request for such a review must be made to the DFO by February 24, 2014.

How these changes will impact municipal water and wastewater operations is difficult to predict. Certainly large and small scale operations had the potential to disrupt fish habitat, and required approvals under the Act. Many projects may now be relieved of that requirement because they pose no threat of serious harm. This will certainly remove some administrative burden from utilities. The distinction of serious harm and limiting the provisions to key fisheries will also limit the liability of water and wastewater projects and operations under the Fisheries Act.

A new duty to report harm to habitat, which will complement the duty to report deposits of deleterious substances (only recently effective with regulations which came into force March 25, 2011), will provide some further habitat protection.

The more problematic deleterious substance provisions remain intact and wastewater facilities will continue to face some vulnerability under these provisions — although this has been mostly relieved by the Wastewater Systems Effluent Regulations.

Environmentalists fear that these changes will have serious impacts on fish habitat and ultimately on fish populations. However, the hope is that these revisions will reduce administrative burden and costs for both project proponents and the federal government while still protecting fish and fish habitat from serious harm. Any at risk fish populations will have the added benefit of protection under the Species at Risk Act.

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