Draft Regulations Released for Deposits of Deleterious Substances

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On February 15, 2014, the Department of Fisheries and Oceans (DFO) released draft regulations under section 36 of the Fisheries Act to provide a regulatory framework to permit deposits of deleterious substances in three circumstances:

to regulate aquaculture, aquatic pests and aquatic invasive species;
to allow for aquatic research; and
where the deposits of deleterious substances are already managed by provincial and/or federal regulating authorities.

With respect to the last category, which is of most significance for our members, the proposed regulations allow the Minister of Environment to issue regulations permitting the deposit of deleterious substances if the following conditions are met:

the deleterious substance to be deposited, its deposit or the work, undertaking or activity that results in the deposit is authorized under federal or provincial law, or is subject to guidelines issued by a federal or provincial government and is subject to an enforcement or compliance regime;
the federal or provincial law or guidelines set out conditions that result in a deposit that is not acutely lethal and contains a quantity or concentration of deleterious substance that, when measured in that deposit or in the relevant water frequented by fish, satisfies:

the recommendations of the Canadian Council of Ministers of the Environment (CCME’s) Canadian Water Quality Guidelines for the Protection of Aquatic Life , as amended, or
the recommendations that were derived from those guidelines on their site specific application, as amended, or
the recommendations of any peer-reviewed guidelines that are established for the purpose of protecting aquatic life and adopted by a federal or provincial body; and

if the effects of such a deposit on fish, fish habitat and the use by man of fish have been evaluated in accordance with generally accepted standards of good scientific practice.

Wastewater utilities have been subject to prosecutions under the deleterious substance provisions, and occasionally even drinking water systems have had challenges under the legislation (i.e., during filter backwashing). This vulnerability has been mostly mitigated by the new Wastewater Systems Effluent Regulations, which authorize the deposit of ammonia, chlorine and total suspended solids under prescribed levels and gives firm timelines for compliance. However, this Regulation will provide further protection for our members, providing clear guidance on when a discharge is considered deleterious, and making it much easier to defend against prosecutions.

If the proposed regulations are approved, they will provide for a significant shift in the regulatory regime for managing water quality in Canada. The current regulatory regime involves overlaps and inefficiencies between provincial and federal authorities and creates legal uncertainty for proponents of activities. The proposed regulations will allow the federal Government to rely on provincial permitting programs to manage industrial developments. This will reduce regulatory overlap and inefficiencies, and will remove a key source of legal risk for major projects.

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