Conservation Halton

Fish and Fish Habitat Review

Ecological Review of Planning Applications

Conservation Halton ecology staff provide review of projects as they pertain to Ontario Regulation 162/06. In addition to these comments, staff may provide comments for applications made pursuant to the Planning Act, the Environmental Assessment Act, the Niagara Escarpment Planning and Development Act and the Parkway Belt West Plan. These reviews can include large-scale planning documents as well as small-scale planning applications.

Large-scale planning includes watershed studies, subwatershed studies, subwatershed impact studies, provincial plans, municipal planning documents and environmental assessments. These types of planning documents examine “big picture” planning initiatives and their potential impacts to natural features. Conservation Halton staff review these documents regarding the assessment of natural features, restoration, mitigation and potential impacts to those features on a local and watershed scale. Staff comment on these applications under our memorandums of understanding with our municipal partners with regards to Natural Heritage under the Provincial Policy Statement (Section 2.1). Conservation Halton staff may also provide concurrent preliminary comments under Section 35 of the Fisheries Act as per our agreement with Fisheries and Oceans Canada.

Small-scale planning applications such as site plans and environmental impact statements are more localized. They deal with planning issues on a site-by-site basis. As such they require a more detailed and scoped assessment compared to larger scale planning documents. Conservation Halton staff review local impacts to significant areas, habitat and associated function of natural areas. This review is conducted under the memorandums of understanding between Conservation Halton and our municipal partners with regards to Natural Heritage under the Provincial Policy Statement (Section 2.1). Small scale planning applications may also be subject to a concurrent review under our Level 2 Agreement with Fisheries and Oceans Canada with regards to impacts to fish habitat under the Fisheries Act (Section 35(1)).

Ecological Review of Permit Applications

Conservation Halton Ecology staff review permit applications under Ontario Regulation 162/06. Concurrently, comments under Section 35(1) of the Fisheries Act are also provided through our Level 2 Agreement with Fisheries and Oceans Canada with regards to impacts to fish habitat, However in some instances the Planning Act may also be applicable. Hence the file may also be subject to comments under the Provincial Policy Statement.

Ecological Review of Impacts to Fish Habitat Not Associated with a Permit Application

Under our Level 2 Agreement with Fisheries and Oceans Canada, Conservation Halton is responsible for review of all projects with the potential to cause an impact to fish habitat regardless of whether the project requires a permit under Ontario Regulation 162/06 or planning approvals.

FISHERIES ACT – SECTION 35 REVIEW

The Fisheries Act is a federal legislation enforced and managed by Fisheries and Oceans Canada (DFO). Various portions of the Act are administered through partnerships with other organizations such as conservation authorities, Parks Canada, Environment Canada, etc.

Conservation Halton has a Level 2 agreement with DFO to administer the review of projects under section 35 (1) of the Fisheries Act which states:

"No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat." (HADD)

Fish Habitat as defined in the Fisheries Act means the spawning grounds and nursery, rearing, food supply, and migration areas on which fish depend directly or indirectly in order to carry out their life processes. Fish habitat is comprised of those physical, chemical and biological attributes of the environment which are required by fish to carry out their life processes (e.g. spawning, nursery, rearing, feeding, overwintering, migration). It consists of those environments that directly or indirectly support fish stocks or fish populations that sustain, or have the potential to sustain subsistence, commercial or recreational fishing activities. These guidelines can be applied to habitat which although not directly supporting fish, provides nutrients and/or food supply to adjacent or downstream habitat or contribute to water quality for fish.

This agreement has been established for the conservation and protection of fish habitat while promoting the principles of good fisheries management and client service. Under this agreement conservation Halton will assess all proposals within our watershed regardless of other permitting requirements unless agreed to by DFO under a separate agreement (i.e. Union Gas, MNR etc). The Fisheries Act is independent of lower-tier provincial and municipal government legislation.

There are three levels of agreements between DFO and conservation authorities (CA).

Level 1: CA identifies presence of fish habitat in the area of proposed work and refers the file to DFO.
Level 2: CA identifies if a Harmful Alteration, Disruption or Destruction (HADD) of fish habitat is likely to occur as a result of the proposal and mitigates the proposal to lessen or eliminate the HADD. If the HADD cannot be mitigated, the file is then referred to DFO. Conservation Halton has a Level 2 Agreement.
Level 3: CA identifies the presence of fish habitat in the area of proposed work and mitigates the proposal to lessen or eliminate the harmful alteration, disruption or destruction of fish habitat. If the project cannot be mitigated the partner reviews compensation plans for the loss or fish habitat as a result of the works.

Ministry of Natural Resources or Ministry of Transportation reviews proposals by Ministry of Transport, Canadian Fish and Wildlife Improvement Program applications, and Crown Forest Sustainability Act projects in a similar fashion as a Level 3 Conservation Authority.

Conservation Halton is not responsible for the enforcement of the Fisheries Act but works in partnership with DFO for the protection of fish and fish habitat.

CONSERVATION HALTON’S LEVEL 2 AGREEMENT

Under Conservation Halton’s Level 2 Agreement with Fisheries and Oceans Canada (DFO), CH staff review proposals for their potential impacts to fish habitat under the Fisheries Act, Section 35(1). Conservation Halton’s responsibilities under this agreement are:

Determination of the presence of fish habitat.
Working with the proponent to mitigate impacts to fish habitat as a result of the proposal.
Issuing a letter of advice for projects that will likely not constitute a HADD.
If necessary, referring the proposal to Fisheries and Oceans Canada for authorization under the Fisheries Act, if the impacts cannot be mitigated.

Upon review, if a HADD is deemed to likely occur, staff will provide the proponent with the following options:

Revise the application in order to avoid any impact to fish habitat
Advise the proponent of mitigation measures necessary to avoid a HADD (actions taken during the planning, design, construction and operation of works, and undertakings to prevent potential adverse effects on the productive capacity of fish habitats);
Refer the project to DFO if the HADD cannot be mitigated, which will require the project to be reviewed by DFO staff.

Once a project has been finalized and all impacts to fish habitat have been mitigated, Conservation Halton staff will issue a letter of advice. The letter of advice outlines the general project concept, general phasing requirements and details regarding mitigation measures required in order to mitigate the effects of any harmful alteration, disruption or destruction of fish habitat. The proponent is responsible for ensuring all workers (contractors, consultants, equipment operators, etc.) are familiar with the terms of the letter of advice. The letter of advice (or copy) should be posted at the worksite throughout the duration of the works.

DFO has issued standard Operational Statements to replace letters of advice for common routine projects that, if completed according to the guidelines of the Operational Statement, should not cause a harmful alteration, disruption or destruction of fish habitat. CH will provide an Operational Statement for applicable proposals in place of a letter of advice. It is the proponent’s responsibility to ensure that the project is carried out according to the guidelines in the Operational Statement and that DFO is notified about the proposed undertaking. Operational Statements are posted on the Fisheries and Oceans Canada website.

The review of fish habitat is independent of the engineering review and other permitting requirements. As such requirements for engineering purposes (i.e. hydraulics) may not be suitable for fish habitat and visa-versa. Conservation Halton ecology staff work closely with our engineers to determine techniques and methods that satisfy both of these requirements. Engineering and ecology comments are complementary and should be read in their entirety.

Note, that under the Level 2 Agreement, Conservation Halton staff are NOT responsible for facilitating the preparation of compensation plans for the proponent (Level 3 agreements).

The following chart outlines the review process for proposals submitted to Conservation Halton:

Conservation Halton Fisheries Review Process

PROVINCIAL POLICY STATEMENT

Section 3 of the Planning Act states that a decision of any authority that affects planning matters shall be consistent with policy statements issued. Policy 2.1 of the Provincial Policy Statement, speaks to how planning applications should address natural heritage features and functions. The Provincial Policy Statement gives municipalities the ability to protect natural areas through the Planning Act. The responsibility to conduct this review has been given to Conservation Halton through a memorandum of understanding between Conservation Halton and our partner municipalities.

Provincial Policy Statement on MMAH website