Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations
SOR/2013-191
Registration 2013-10-25
Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations
P.C. 2013-1129 2013-10-24
His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to paragraphs 43(1)(i.2)Footnote a and (i.4)Footnote a of the Fisheries ActFootnote b, makes the annexed Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations.
Return to footnote aS.C. 2012, c. 19, s. 149(2)
Return to footnote bR.S., c. F-14
Interpretation
Marginal note:Definitions
1 The following definitions apply in these Regulations.
- Act
Act means the Fisheries Act. (Loi)
- offsetting plan
offsetting plan means the plan that provides for the implementation of measures to offset the serious harm to fish referred to in section 12 of Schedule 1. (plan compensatoire)
Application
Marginal note:Authorization required
2 These Regulations apply to applications for authorization under paragraph 35(2)(b) of the Act that are made to the Minister of Fisheries and Oceans.
Authorization
Application for Authorization
Marginal note:Required information and documentation
3 (1) Subject to section 4, an application for authorization under paragraph 35(2)(b) of the Act must be submitted to the Minister in writing and must include
(a) the information and documentation listed in Schedule 1; and
(b) an irrevocable letter of credit issued by a recognized Canadian financial institution to cover the costs of implementing the offsetting plan.
Marginal note:Exception
(2) Paragraph (1)(b) does not apply if the applicant is Her Majesty in right of Canada, Her Majesty in right of a province or the government of a territory.
Application for Authorization — Emergency Circumstances
Marginal note:Required information — emergency circumstances
4 (1) Only the information listed in Schedule 2 must be submitted to the Minister in support of an application in respect of a work, undertaking or activity that needs to be carried on without delay in response to
(a) a matter of national security;
(b) a national emergency for which special temporary measures are taken under the Emergencies Act; or
(c) an emergency that poses a risk to public health or safety or to the environment or property.
Marginal note:Non-application of sections 5 to 8
(2) Sections 5 to 8 do not apply to an application referred to in subsection (1).
Processing of Application
Marginal note:Confirmation of receipt
5 Subject to section 4, the Minister must, on receipt of an application, send to the applicant a confirmation of receipt that indicates the date of receipt.
Marginal note:60-day time limit
6 (1) Subject to sections 4 and 8, the Minister must, within a period of 60 days beginning on the date of receipt of the application, notify the applicant in writing as to whether the application is complete or incomplete. If the application is incomplete, the Minister must include in the notification a list of the information or documentation that is still to be provided.
Marginal note:Outstanding information or documentation
(2) The Minister must, on receipt of any information or documentation listed in the notification, send to the applicant a confirmation of receipt that indicates the date of receipt. Subsection (1) applies again to the application, except that the period begins on the date indicated in the confirmation of receipt.
Marginal note:Application complete
7 Subject to sections 4 and 8, the Minister must, within a period of 90 days beginning on the date of the notification that the application is complete, either issue an authorization or notify the applicant in writing of the refusal to do so.
Marginal note:Time limit ceases to apply
8 (1) The time limit referred to in subsection 6(1) or section 7 ceases to apply in the following circumstances:
(a) the applicant proposes changes to the proposed work, undertaking or activity or to the offsetting plan that require the submission of additional or amended information or documentation before an authorization can be issued or a notification of refusal can be given;
(b) the applicant requests in writing that the processing of the application be suspended;
(c) circumstances require that information or documentation other than that referred to in subsection 3(1) be obtained or that information or documentation submitted by the applicant be amended before an authorization can be issued or a notification of refusal can be given;
(d) consultation is required before an authorization can be issued or a notification of refusal can be given; or
(e) an Act of Parliament, a regulation made under an Act of Parliament or a land claims agreement provides that a decision be made or that conditions be met before an authorization can be issued or a notification of refusal can be given.
Marginal note:Notification
(2) If a time limit ceases to apply under subsection (1), the Minister must notify the applicant in writing and, if the cessation is due to a circumstance set out in paragraph (1)(c), (d) or (e), inform the applicant of the circumstance and, if applicable, the information or documentation that must be submitted.
Marginal note:Resumption of processing of application
(3) The processing of the application is to resume as soon as
(a) the information or documentation referred to in paragraph (1)(a) or (c) has been obtained or amended;
(b) if paragraph (1)(b) applies, the Minister receives a written request from the applicant that the processing of the application be resumed;
(c) the consultation referred to in paragraph (1)(d) has been completed; or
(d) if paragraph (1)(e) applies, the decision has been made or the conditions have been met.
Marginal note:Time limit
(4) The Minister must notify the applicant in writing of the date on which the processing of their application is resumed. The time limit set out in subsection 6(1) or section 7, as the case may be, applies to the application, except that the 60-day or 90-day period begins on the date of resumption.
Consequential Amendments to the Fishery (General) Regulations
9 [Amendments]
Coming into Force
Marginal note:S.C. 2012, c. 19
Footnote *10 These Regulations come into force on the day on which subsection 149(2) of the Jobs, Growth and Long-term Prosperity Act, chapter 19 of the Statutes of Canada, 2012, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.
Return to footnote *[Note: Regulations in force November 25, 2013, see SI/2013-116.]
SCHEDULE 1(Section 1 and paragraph 3(1)(a))Information and Documentation To Be Provided
Contact Information
1 The applicant’s name, address, telephone number and, if applicable, the name, address and telephone number of their duly authorized representative.
Description of Proposed Work, Undertaking or Activity
2 A description of the proposed work, undertaking or activity and, if applicable, of the project of which the proposed work, undertaking or activity is a part, including the purpose of the proposed work, undertaking or activity and, if applicable, of the project, the associated infrastructure, any permanent or temporary structure involved and the construction methodologies, building materials, explosives, machinery and other equipment that will be used.
3 If physical works are proposed, the project engineering specifications, scale drawings and dimensional drawings.
Timeline
4 A description of the anticipated phases, including the sequencing of the phases, of the proposed work, undertaking or activity and, if applicable, of the project of which the proposed work, undertaking or activity is a part and the schedule for carrying on the proposed work, undertaking or activity and, if applicable, the project.
Location
5 A description of the location of the proposed work, undertaking or activity and, if applicable, of the location of the project of which the proposed work, undertaking or activity is a part, including
(a) geographic coordinates;
(b) a small-scale site plan identifying the overall location and boundaries;
(c) a large-scale site plan indicating the size and spatial relationship of the planned facilities, infrastructure and other components and of any existing structures, landmarks, water sources or water bodies and other geographic features; and
(d) the name of any watersheds, water sources and water bodies that are likely to be affected and the geographic coordinates of the water sources and water bodies.
6 The name of the community nearest to the location and the name of the county, district or region and the province in which the proposed work, undertaking or activity will be carried on.
Description of Fish and Fish Habitat (Aquatic Environment)
7 A description of the fish and fish habitat found at the location of the proposed work, undertaking or activity and within the area likely to be affected by the proposed work, undertaking or activity, including
(a) the type of water source or water body;
(b) the characteristics of the water source or water body and how those characteristics directly or indirectly support fish in carrying out their life processes;
(c) the fish species that are present and an estimate of the abundance of those species; and
(d) a description of how the information provided under paragraphs (a) to (c) was derived, including the sources, methodologies and sampling techniques used.
Description of Effects on Fish and Fish Habitat
8 (1) A description of the likely effects of the proposed work, undertaking or activity on fish that are part of a commercial, recreational or Aboriginal fishery, or on fish that support such a fishery, and the likely effect on the habitat of those fish. The description must include the following information:
(a) the fish species that are likely to be affected and the life stages of the individuals of those species;
(b) the extent and type of fish habitat that is likely to be affected;
(c) the probability, magnitude, geographic extent and duration of the likely effects on fish and fish habitat; and
(d) a description of how the information provided under paragraphs (a) to (c) was derived, including the methodologies used.
(2) A description of how the effects referred to in subsection (1) are likely to result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, and a description of the serious harm to fish.
Measures and Standards to Avoid or Mitigate Serious Harm to Fish
9 A description of the measures and standards that will be implemented to avoid or mitigate the serious harm to fish that is referred to in subsection 8(2), including an analysis of the expected effectiveness of those measures and standards.
10 A description of the monitoring measures that will be put in place to assess the effectiveness of the measures and standards referred to in section 9.
11 A description of the contingency measures that will be implemented if the measures and standards referred to in section 9 are not successful in avoiding or mitigating the serious harm to fish that is referred to in subsection 8(2).
Residual Serious Harm to Fish after Implementation of Avoidance and Mitigation Measures and Standards
12 A quantitative description of the anticipated serious harm to fish that is likely to result from the work, undertaking or activity despite the implementation of the measures and standards referred to in section 9.
Offsetting Plan
13 An offsetting plan in respect of the serious harm to fish referred to in section 12, including
(a) a description of the measures that will be implemented to offset the serious harm to fish;
(b) an analysis of how those measures will offset the serious harm to fish;
(c) a description of the measures and standards that will be put in place during the implementation of the offsetting plan to avoid or mitigate any adverse effects on fish and fish habitat that could result from the implementation and an analysis of how those measures and standards will avoid or mitigate those adverse effects;
(d) a description of the monitoring measures that will be put in place to assess the effectiveness of the offsetting measures referred to in paragraph (a);
(e) the timeline for the implementation of the offsetting plan;
(f) a description of the contingency measures and associated monitoring measures that will be put into place if the measures referred to in paragraph (a) are not successful in offsetting the serious harm to fish;
(g) an estimate of the cost of implementing each element of the offsetting plan; and
(h) if the implementation of the offsetting plan requires access to lands, water sources or water bodies that are not owned by the applicant, a description of the steps that are proposed to be taken to obtain the authorization required for the applicant, the Department of Fisheries and Oceans and anyone authorized to act on the Department’s behalf to access the lands, water sources or water bodies in question. This information is not required if the applicant is Her Majesty in right of Canada, Her Majesty in right of a province or the government of a territory.
SCHEDULE 2(Subsection 4(1))Emergency Circumstances — Information To Be Provided
Contact Information
1 The applicant’s name, address, telephone number and, if applicable, the name, address and telephone number of their duly authorized representative.
Nature of the Matter of National Security, National Emergency or Emergency
2 A description of the nature of the matter of national security, national emergency or emergency and the reasons why the proposed work, undertaking or activity needs to be carried on without delay.
Proposed Work, Undertaking or Activity
3 A description of the proposed work, undertaking or activity and how it relates to the matter of national security, national emergency or emergency.
Timeline
4 The timeline for carrying on the proposed work, undertaking or activity.
Location
5 A description of the location of the proposed work, undertaking or activity, including its geographic coordinates and the name of any water sources and water bodies that are likely to be affected.
Serious Harm
6 A description of the serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is likely to result from the proposed work, undertaking or activity.
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