Authorizations Concerning Fish and Fish Habitat Protection Regulations (SOR/2019-286)
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Regulations are current to 2024-04-01 and last amended on 2019-08-28. Previous Versions
Authorizations Concerning Fish and Fish Habitat Protection Regulations
SOR/2019-286
Registration 2019-08-08
Authorizations Concerning Fish and Fish Habitat Protection Regulations
P.C. 2019-1183 2019-08-07
Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to paragraphs 43(1)(i.11)Footnote a, (i.2)Footnote a, (i.4)Footnote a, (i.6)Footnote a and (i.8)Footnote a of the Fisheries ActFootnote b, makes the annexed Authorizations Concerning Fish and Fish Habitat Protection Regulations.
Return to footnote aS.C. 2019, c. 14, s. 31(6)
Return to footnote bR.S., c. F-14
Interpretation
Marginal note:Definition of Act
1 In these Regulations, Act means the Fisheries Act.
Authorizations
Marginal note:Required information and documents
2 (1) The Minister may, on application, issue the authorization referred to in paragraph 34.4(2)(b) or 35(2)(b) of the Act. The application must be made to the Minister in writing and include
(a) the information and documents set out in Schedule 1; and
(b) an irrevocable letter of credit issued by a recognized Canadian financial institution, or another equivalent financial guarantee, including a performance bond, to cover the costs of implementing the plan referred to in section 16 of Schedule 1.
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.
Marginal note:Required information — emergency situation
3 Only the information set out in Schedule 2 must be provided 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 the following situations:
(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, the environment or property.
Processing of Non-Emergency Applications
Marginal note:Application
4 (1) This section applies to applications referred to in section 2.
Marginal note:Confirmation of receipt
(2) 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
(3) Subject to subsections (6) and (8), the Minister must, within a period of 60 days beginning on the day on which the application is received, notify the applicant in writing that the application is complete, incomplete or inadequate. If the application is incomplete or inadequate, the notification must specify the information or documents to be provided.
Marginal note:Subsection (3) applies again
(4) The Minister must, on receipt of any information or documents set out in the notification, send to the applicant a confirmation of receipt that indicates the date of receipt. Subsection (3) applies again to the application, except that the period begins on the date indicated in the confirmation of receipt.
Marginal note:Minister’s decision
(5) Subject to subsections (6) and (8), the Minister must, within a period of 90 days beginning on the date of the notification informing the applicant that their 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
(6) The time limit referred to in subsection (3) or (5) ceases to apply if
(a) the applicant proposes amendments to their application;
(b) the applicant requests in writing that the processing of the application be suspended;
(c) circumstances require that information or documents other than those referred to in subsection 2(1) be obtained or that amendments to the information or documents submitted by the applicant be made 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:Notice
(7) If a time limit ceases to apply, the Minister must notify the applicant in writing and, if it ceases to apply for a reason set out in any of paragraphs (6)(c), (d) and (e), inform the applicant of the reason and, if applicable, the information or documents that must be submitted.
Marginal note:Time limit starts over
(8) The time limit referred to in subsection (3) or (5) starts over as soon as all of the following conditions have been met:
(a) all information or documents in support of the proposed amendments have been received, in the case referred to in paragraph (6)(a);
(b) the Minister receives a request in writing that the processing of the application be resumed, in the case referred to in paragraph 6(b);
(c) the information or documents referred to in paragraph (6)(c) have been obtained or amended;
(d) the consultation referred to in paragraph (6)(d) has been conducted;
(e) the decision has been made or the conditions have been met, in the case referred to in paragraph (6)(e).
Marginal note:Notice
(9) The Minister must notify the applicant in writing of the day on which the time limit referred to in subsection (3) or (5) starts over.
Amendment, Suspension or Cancellation of Authorization
Marginal note:Request for amendment
5 The holder of any authorization may request that the authorization be amended. The request must be submitted to the Minister in writing and include
(a) the file numbers indicated on the original authorization;
(b) a description of the amendment;
(c) the updated information and documents set out in Schedule 1 or 2 that are necessary to support the request; and
(d) a detailed description of the likely effects of the amendment on fish and fish habitat, if not otherwise submitted under paragraph (c).
Marginal note:Request for suspension
6 The holder of any authorization may request that the authorization be suspended in whole or in part. The request must be submitted to the Minister in writing and include
(a) the file numbers indicated on the original authorization;
(b) the period of suspension requested, if any;
(c) the reason for requesting the suspension; and
(d) a detailed description of the likely effects of the suspension on fish and fish habitat.
Marginal note:Request for cancellation
7 The holder of any authorization may request that the authorization be cancelled. The request must be submitted to the Minister in writing and include
(a) the file numbers indicated on the original authorization;
(b) the requested cancellation date;
(c) the reason for requesting the cancellation; and
(d) a detailed description of the likely effects of the cancellation on fish and fish habitat.
Marginal note:Confirmation of receipt
8 (1) The Minister must, on receipt of a request referred to in sections 5 to 7, send to the authorization holder a confirmation of receipt that indicates the date of receipt.
Marginal note:60-day time limit
(2) Subject to subsections (5) and (7), the Minister must, within a period of 60 days beginning on the day on which the request is received, notify the authorization holder in writing that the request is complete, incomplete or inadequate. If the request is incomplete or inadequate, the notification must specify the information or documents to be provided.
Marginal note:Subsection (2) applies again
(3) The Minister must, on receipt of any information or documents set out in the notification, send to the authorization holder a confirmation of receipt that indicates the date of receipt. Subsection (2) applies again to the request, except that the period begins on the date indicated in the confirmation of receipt.
Marginal note:Minister’s decision
(4) Subject to subsections (5) and (7), the Minister must, within a period of 90 days beginning on the date of the notification informing the authorization holder that their request is complete, either amend, suspend or cancel the authorization or notify the authorization holder in writing of the refusal to do so.
Marginal note:Time limit ceases to apply
(5) The time limit referred to in subsection (2) or (4) ceases to apply if
(a) the authorization holder proposes amendments to the request to amend, suspend or cancel;
(b) the authorization holder requests in writing that the processing of the request be suspended;
(c) circumstances require that information or documents other than those referred to in sections 5 to 7 be obtained or that amendments to the information or documents submitted by the authorization holder be made before the Minister amends, suspends or cancels the authorization;
(d) consultation is required before the authorization can be amended, suspended or cancelled; 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 the authorization can be amended, suspended or cancelled.
Marginal note:Notice
(6) If the time limit ceases to apply, the Minister must notify the authorization holder in writing and, if it ceases to apply for a reason set out in any of paragraphs (5)(c), (d) and (e), inform the authorization holder of the reason and, if applicable, the information or documents that must be submitted.
Marginal note:Time limit starts over
(7) The time limit referred to in subsection (2) or (4) starts over as soon as all of the following conditions have been met:
(a) all information or documents in support of the proposed amendments have been received, in the case referred to in paragraph (5)(a);
(b) the Minister receives a request in writing that the processing of the request be resumed, in the case referred to in paragraph 5(b);
(c) the information or documents referred to in paragraph (5)(c) have been obtained or amended;
(d) the consultation referred to in paragraph (5)(d) has been conducted;
(e) the decision has been made or the conditions have been met, in the case referred to in paragraph (5)(e).
Marginal note:Notice
(8) The Minister must notify the authorization holder in writing of the day on which the time limit referred to in subsection (2) or (4) starts over.
Marginal note:Amendment, suspension or cancellation by Minister
9 (1) The Minister may, on the Minister’s own initiative, amend or suspend, in whole or in part, or cancel any authorization if
(a) the Minister has reasonable grounds to believe that the conditions established by the Minister in the authorization have not been or will not be met;
(b) the Minister has reasonable grounds to believe that the authorization was obtained by fraudulent or improper means or by the misrepresentation of a material fact;
(c) the Minister becomes aware of new information that demonstrates that the death of fish or the harmful alteration, disruption or destruction of fish habitat is or will be significantly greater than anticipated by the Minister at the time of issuance of the authorization; or
(d) the authorization holder has not paid a fine imposed on them under the Act.
Marginal note:Notice and representations
(2) If the Minister intends to amend or suspend, in whole or in part, or cancel the authorization, the Minister must notify the authorization holder in writing of this intention and give the authorization holder an opportunity to make written representations.
Marginal note:Suspension in urgent situations
(3) Despite subsection (2), the Minister may suspend an authorization, in whole or in part, without giving the authorization holder an opportunity to make written representations if the suspension is required to prevent the imminent death of fish or the imminent harmful alteration, disruption or destruction of fish habitat.
Marginal note:Notice of amendment, suspension or cancellation
(4) If the authorization is amended or suspended, in whole or in part, or cancelled by the Minister, the Minister must notify the authorization holder in writing of the amendment, suspension or cancellation, its effective date and, in the case of a suspension, the duration.
Marginal note:Reinstatement of authorization
(5) The Minister may reinstate the authorization at the expiry of the period indicated in the notice of suspension or, on written request, at any time during the suspension if the matter that gave rise to the suspension has been resolved or corrected. The Minister may require the authorization holder to submit a request for amendment in order to reinstate the authorization.
Transitional Provision
Marginal note:SOR/2013-191
10 If an application for an authorization under paragraph 35(2)(b) of the Fisheries Act is made in accordance with the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations before the coming into force of these Regulations, and the applicant has been notified by the Minister that the application is complete in accordance with the requirements of the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, then the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, as they read immediately before the coming into force of these Regulations, apply to the application.
Repeal
11 The Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act RegulationsFootnote 1 are repealed.
Return to footnote 1SOR/2013-191
Coming into Force
Marginal note:S.C. 2019, c. 14
Footnote *12 These Regulations come into force on the day on which section 22 of An Act to amend the Fisheries Act and other Acts in consequence 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 August 28, 2019, see SI/2019-80.]
SCHEDULE 1(Subsection 2(1) and paragraph 5(c))Information and Documents To Be Provided
Contact Information
1 The applicant’s and, if applicable, their representative’s name, address and telephone number.
Description of Proposed Work, Undertaking or Activity
2 A detailed description of the proposed work, undertaking or activity and, if applicable, a detailed description of the project of which the proposed work, undertaking or activity is a part, including
(a) the purpose of the proposed work, undertaking or activity and, if applicable, the project;
(b) the associated infrastructure;
(c) any permanent or temporary structure involved; and
(d) the construction methods, 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.
Phases and Schedule
4 A description of the phases and the schedule of the proposed work, undertaking or activity and, if applicable, a description and schedule of the project of which the proposed work, undertaking or activity is a part.
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 general 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.
Consultations
7 A description and the results of any consultations undertaken in relation to the proposed work, undertaking or activity, including with Indigenous communities or groups and the public.
Fish and Fish Habitat
8 A detailed 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 fish habitat 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 obtained, including the sources, methods and sampling techniques used.
Effects on Fish and Fish Habitat
9 (1) A detailed description of the likely effects of the proposed work, undertaking or activity on fish and fish habitat. The description must include
(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 detailed description of
(a) how the effects referred to in subsection (1) are likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat; and
(b) the extent of the elements referred to in paragraph (a).
Measures and Standards
10 A detailed description of the measures and standards that will be implemented, including an analysis of the expected effectiveness of those measures and standards, to
(a) avoid the death of fish or to mitigate the extent of their death; or
(b) avoid or mitigate the harmful alteration, disruption or destruction of fish habitat.
11 A detailed description of the monitoring measures that will be implemented to assess the effectiveness of the measures and standards referred to in section 10.
12 A detailed description of the contingency measures that will be implemented if the measures and standards referred to in section 10 do not meet their objectives.
13 A quantitative and detailed description of the death of fish referred to in subsection 9(2) after the measures and standards referred to in paragraph 10(a) are implemented.
14 A quantitative and detailed description of the harmful alteration, disruption or destruction of fish habitat referred to in subsection 9(2) after the measures and standards referred to in paragraph 10(b) are implemented.
Habitat Credit
15 The number of habitat credits that the applicant plans to use to offset the death of fish referred to in section 13 and the harmful alteration, disruption or destruction of fish habitat referred to in section 14, as well as the number of any certificate referred to in paragraph 42.02(1)(b) of the Act.
Offsetting Plan
16 A detailed description of a plan to offset the death of fish referred to in section 13 and the harmful alteration, disruption or destruction of fish habitat referred to in section 14 that were not offset by the habitat credits referred to in section 15, including
(a) the geographic coordinates of the location where offsetting measures will be implemented;
(b) a small-scale site plan identifying the general location and boundaries of the location where the measures will be implemented;
(c) a detailed description of the measures and how those measures will meet their objectives;
(d) a detailed description of the monitoring measures that will be implemented to assess the effectiveness of the measures referred to in paragraph (c);
(e) a detailed description of the contingency measures and associated monitoring measures that will be implemented if the measures referred to in paragraph (c) do not meet their objectives;
(f) a detailed description of any adverse effects on fish and fish habitat that could result from the implementation of the plan;
(g) a detailed description of the measures and standards that will be implemented to avoid or mitigate the adverse effects and how those measures will meet their objectives;
(h) the timeline for the implementation of the plan;
(i) an estimate of the cost of implementing each element of the plan; and
(j) if the implementation of the 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(Section 3 and paragraph 5(c))Emergency Situations — Information To Be Provided
1 The applicant’s and, if applicable, their representative’s name, address and telephone number.
2 A detailed description of the proposed work, undertaking or activity, a description of the applicable situation referred to in paragraphs 3(a) to (c) of these Regulations and the reasons why the proposed work, undertaking or activity needs to be carried on without delay.
3 The timeline for carrying on the proposed work, undertaking or activity.
4 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.
5 A detailed description of the death of fish and the harmful alteration, disruption or destruction of fish habitat that are likely to result from the proposed work, undertaking or activity.
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