ARCHIVED — Vol. 148, No. 7 — February 15, 2014

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Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act

Statutory authority

Fisheries Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The pollution prevention provisions in the Fisheries Act (hereinafter referred to as the “Act”) include a general prohibition on polluting water frequented by fish.

This has meant that activities already well managed in a way that is protective of water frequented by fish may not be in compliance with the pollution prevention provisions of the Act. As a result, there is some uncertainty within industries because their activities, though in compliance with other federal or provincial regulatory controls, are not authorized under the Act. For example, deposits from an industrial sector that are managed by a provincial permitting program may not be authorized under the Act, even if they comply with the provincial permit requirements. This uncertainty could pose a challenge to some industries in that it could discourage investment decisions or delay business development.

In addition, there has been limited flexibility to authorize research activities that provide useful information to support the purposes of the pollution prevention provisions of the Act. Research of this nature conducted at the ecosystem scale, as opposed to a laboratory setting, may require the carefully controlled and monitored release of deleterious substances into water frequented by fish. The Fisheries Act does not have a specific mechanism to exempt research activities from the general prohibition. In contrast, the Species at Risk Act and the Migratory Birds Regulations provide for the permitting of research activities in similar situations.

Recent amendments to the pollution prevention provisions within the Act have introduced a new authority to develop ministerial regulations authorizing the deposit of certain deleterious substances. These regulations would provide some legal certainty for stakeholders in the situations described above. However, before this authority can be exercised, the Governor in Council (GIC) must make regulations that set out conditions on the use of this new authority.

Background

Subsection 36(3) of the Act (the general prohibition) prohibits the deposit of deleterious substances in water frequented by fish unless authorized by federal regulations made either under the Act or under another act of Parliament.

The Minister of Fisheries and Oceans is accountable to Parliament for the overall administration and enforcement of the Act. The Minister of the Environment is responsible for the administration and enforcement of the pollution prevention provisions of the Act, in particular subsections 36(3) to (6). This responsibility includes providing advice to the Minister of Fisheries and Oceans on regulations to recommend to the GIC authorizing deposits under these sections.

As part of the Jobs, Growth and Long-term Prosperity Act, a number of amendments were made to the Fisheries Act, including changes to the pollution prevention provisions. More specifically, ministerial regulations, not only GIC regulations, may authorize the deposit of certain deleterious substances. The authority to develop ministerial regulations is intended to improve the ability of Environment Canada and the Department of Fisheries and Oceans to more efficiently and effectively manage responsibilities under the Act. However, the making of such regulations is subject to the GIC having set out conditions for making ministerial regulations.

The amendments do not change the long-standing prohibition against the deposit of deleterious substances.

Objectives

The objective of the Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act (hereinafter referred to as the “proposed Regulations”) is to set out conditions under which the Minister may make regulations authorizing the deposit of deleterious substances into water frequented by fish. For example, ministerial regulations are an efficient means for authorizing lower-risk deposits that are already well controlled by recognized instruments and/or processes outside the Act or research that supports the objectives of the Act.

Description

Made under the authority of subsection 36(5.1) of the Act, the proposed Regulations would establish conditions for the making of ministerial regulations under subsection 36(5.2) of the Act. Different conditions would apply to the making of ministerial regulations depending on the objectives of such regulations.

In the first instance, the following conditions, intended for authorizations administered by the Minister of Fisheries and Oceans, would apply to ministerial regulations that authorize deposits of deleterious substances for the purposes of aquaculture, aquatic pests and aquatic invasive species:

  • The Minister is satisfied that the regulations are required for the proper management and control of fisheries or the conservation and protection of fish; and
  • The deleterious substance whose deposit is to be authorized
    • (i) is a drug whose sale is permitted or otherwise authorized or whose importation is not prohibited under the Food and Drugs Act,
    • (ii) is a pest control product that is registered under the Pest Control Products Act or whose use is authorized under that Act, or
    • (iii) is biochemical oxygen demanding matter.

In the second instance, the following conditions, intended for authorizations administered by the Minister of the Environment, would apply to ministerial regulations that authorize deposits of deleterious substances for the purpose of aquatic research:

  • The persons authorized to deposit have processes in place or are subject to processes to verify that
    • (i) the research will contribute to the development of knowledge for the management, conservation, protection or restoration of aquatic ecosystems, and
    • (ii) the research is conducted under the supervision of a qualified person;
  • The persons authorized to deposit have processes in place or are subject to processes that result in the findings from research activities being made available to the public;
  • The persons authorized to deposit have processes in place or are subject to processes to ensure that research activities are designed and executed to
    • (i) avoid harmful effects other than what is required to obtain valid scientific results, and
    • (ii) contain effects to waters within the boundary for which the authorization is given; and
  • The persons authorized to deposit have processes in place or are subject to processes for natural or assisted remediation within 20 years directly following project completion in the event deposits render
    • (i) the aquatic environment unsuitable for sustaining fish populations, and
    • (ii) fish populations unsuitable for human consumption.

In the third instance, the following conditions, intended for authorizations administered by the Minister of the Environment, would apply to ministerial regulations that authorize deposits of deleterious substances already managed by provincial and/or federal regulating authorities:

  • The deleterious substance, the deposit or the source of the deposit is subject to a federal and/or provincial instrument that establishes conditions such that the deleterious substances in the deposit meet or surpass the Canadian Water Quality Guidelines for the Protection of Aquatic Life (CWQG), their site-specific application, or science-based guidelines that offer protection similar to the CWQG adopted by federal and/or provincial jurisdictions, in the deposit itself or after they are mixed with waters;
  • The whole of the deposit is not acutely lethal to fish;
  • The deleterious substance, the deposit or the source of the deposit is subject to an enforcement and/or compliance regime; and
  • The effects on fish, fish habitat and the use by man of fish associated with the deposit subject to ministerial regulation are documented or evaluated, in accordance with generally accepted standards of good scientific practice.

The following conditions would apply to each of the three instances above:

  • Ministerial regulations must be published in the Canada Gazette, Part I, for a minimum 30-day public comment period; and
  • Before publishing the regulations, the Minister must provide the President of the Treasury Board with an estimate of the costs of their implementation.

“One-for-One” Rule

The “One-for-One” Rule would not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The proposed Regulations would not impose any incremental costs on industry, including small businesses. As a result, the small business lens would not apply to the proposed Regulations.

Consultation

The proposed Regulations have no impact on regulatees and no effect on stakeholders or the public at large. The proposed Regulations will not impose any costs or burden on stakeholders, and will not result in any impact on water frequented by fish. Therefore, a limited consultation approach has been taken. This approach includes the publication of the proposed Regulations in the Canada Gazette, Part I, for public comment and written notification to key stakeholders in advance of the publication.

To date, pre-consultations have been completed with provincial/territorial representatives and key stakeholders. There were no major issues identified as a result of these pre-consultations.

Ministerial regulations that would be developed via this new authority and that would authorize deposits may impose costs or burden on stakeholders and would be subject to consultations.

Rationale

The proposed Regulations are required in order to enable the use of this new ministerial authority to make regulations and would set out conditions under which regulations could be made. As the proposed Regulations would merely set out the conditions for the Minister to make regulations, there are no direct impacts on water frequented by fish or on stakeholders.

The proposed Regulations will provide an additional tool to manage classes of activities, waters and deleterious substances that are already effectively controlled by other federal and/or provincial instruments in a manner that prevents pollution, or research activities that contribute to the development of knowledge around pollution prevention for water frequented by fish. For example, the Experimental Lakes Area is a dedicated research facility for ecosystem-scale experimental investigations and long-term monitoring of ecosystem processes. The research at this facility is relevant and useful in implementing the pollution prevention provisions of the Act. However, the facility would benefit from the certainty provided by an authorization under the Act supporting the ongoing conduct of research. Such a facility would be a potential candidate for ministerial regulation. The ministerial regulations would provide regulatees assurance that they would not be subject to the general prohibition in cases where they are in compliance with a regime that has recognized environmental controls or are conducting research that supports the pollution prevention provisions of the Act.

GIC regulations would continue to be used where such regulations are the most appropriate option to manage pollution risks (e.g. deposits that are not currently managed by another regulatory body, or where there is a need to impose several conditions on the deposit) and in all cases where the regulations would impose significant new costs.

For deposits related to aquaculture, aquatic invasive species and aquatic pests, ministerial regulations would provide an additional tool to manage the deposit of deleterious substances that are well managed, including those substances that are already regulated at the federal level, for example through the Pest Control Products Act and the Food and Drugs Act. These ministerial regulations would also provide regulatees the assurance that they would not be subject to the general prohibition in cases where they are in compliance with an existing provincial or federal regime that otherwise allows for the use of these substances in water. Finally, the ministerial regulations could also allow for additional controls to the deposit of these substances (e.g. monitoring standards and reporting requirements).

Given that the risk to water frequented by fish is expected to be negligible and that the proposed Regulations would allow for a more effective and efficient management of responsibilities under the Act, the outcome of the proposed Regulations is expected to be positive.

Implementation, enforcement and service standards

The proposed Regulations would come into force on the day on which they are registered. There is no enforcement associated with the proposed Regulations.

Contact

Peter Ferguson
Manager
Legislation and Regulatory Affairs
Fisheries and Oceans Canada
Mail Station 14S020
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-993-5204
Email: ER-RH@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 36(5.1) (see footnote a) of the Fisheries Act (see footnote b), proposes to make the annexed Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act.

Any person may, within 30 days after the date of publication of this notice, file comments with respect to the proposed Regulations. All comments must cite the Canada Gazette, Part I, and the date of publication of this notice and be sent to Peter Ferguson, Manager, Legislation and Regulatory Affairs, Fisheries and Oceans Canada, Mail Station 14S020, 200 Kent Street, Ottawa, Ontario K1A 0E6 (fax: 613-993-5204; email: ER-RH@dfo-mpo.gc.ca).

Ottawa, February 6, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS ESTABLISHING CONDITIONS FOR MAKING REGULATIONS UNDER SUBSECTION 36(5.2) OF THE FISHERIES ACT

Definitions

1. (1) The following definitions apply in these Regulations.

“Act”
« Loi »

“Act” means the Fisheries Act.

“biochemical oxygen- demanding matter”
« matière exerçant une demande biochimique en oxygène »

“biochemical oxygen-demanding matter” means any matter that consumes oxygen dissolved in water.

“Procedure for pH Stabilization EPS 1/RM/50”
« procédure de stabilisation du pH SPE 1/RM/50 »

“Procedure for pH Stabilization EPS 1/RM/50” means the Procedure for pH Stabilization During the Testing of Acute Lethality of Wastewater Effluent to Rainbow Trout (EPS 1/RM/50), March 2008, published by the Department of the Environment, as amended from time to time.

“Reference Method EPS 1/RM/13”
« méthode de Référence SPE 1/RM/13 »

“Reference Method EPS 1/RM/13” means the Biological Test Method: Reference Method for Determining Acute Lethality of Effluents to Rainbow Trout (EPS 1/RM/13 Second Edition), December 2000 (with May 2007 amendments), published by the Department of the Environment, as amended from time to time.

“research activities”
« activités de recherche »

“research activities” includes any monitoring that is carried out in relation to a deposit.

Acutely lethal

(2) For the purposes of these regulations, a deposit is acutely lethal if, at 100% concentration, it kills more than 50% of the rainbow trout subjected to it over a 96- hour period when tested to determine lethality in accordance with Reference Method EPS 1/RM/13 and – if applicable – in conjunction with the Procedure for pH Stabilization EPS 1/RM/50.

Aquaculture, pests and invasive species

2. The power that is conferred by subsection 36(5.2) of the Act may be exercised in relation to aquaculture, to aquatic species that are a pest to a fishery or to aquatic invasive species, if the following conditions are met:

  • (a) the Minister is satisfied that the regulations are required for the proper management and control of fisheries or the conservation and protection of fish; and
  • (b) the deleterious substance whose deposit is to be authorized
    • (i) is a drug whose sale is permitted or otherwise authorized, or whose importation is not prohibited, under the Food and Drugs Act,
    • (ii) is a pest control product that is registered under the Pest Control Products Act or whose use is authorized under that Act, or
    • (iii) is biochemical oxygen-demanding matter.

Aquatic research

3. The power that is conferred by subsection 36(5.2) of the Act may be exercised in relation to aquatic research activities if the persons authorized by the regulations to deposit deleterious substances have processes in place or are subject to processes

  • (a) to verify that
    • (i) the research activities will contribute to the development of knowledge for the purpose of managing, conserving, protecting or restoring fish populations or water frequented by fish,
    • (ii) the research activities will be conducted under the supervision of a person who has expertise in conducting aquatic research under similar conditions, as evidenced by a substantial and relevant peer-reviewed publication record,
    • (iii) the research activities will be designed so as to
      • (A) avoid harmful effects on fish, fish habitat and the use by man of fish, other than the effects that are necessary to achieve results that are scientifically valid, and
      • (B) confine any harmful effects on fish, fish habitat or the use by man of fish to the waters in respect of which the deposit is authorized, and
    • (iv) if deposits made to conduct research activities render any waters frequented by fish unsuitable to sustain fish populations or render fish populations unsuitable for human consumption, no later than 20 years following completion of the research activities, the waters will be suitable to sustain fish populations and the fish populations will be suitable for human consumption;
  • (b) to evaluate whether the research activities will be carried out in accordance with their design and to document any deviations from that design; and
  • (c) to make research findings available to the public.

Other subject matters

4. The power that is conferred by subsection 36(5.2) of the Act may be exercised in relation to any other subject matter if the following conditions are met:

  • (a) 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;
  • (b) 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
    • (i) the recommendations of the Canadian Water Quality Guidelines for the Protection of Aquatic Life that were published in 1999 by the Canadian Council of Ministers of the Environment, as amended from time to time, or the recommendations that were derived from those guidelines on their site-specific application, as amended from time to time, or
    • (ii) 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
  • (c) 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.

Additional conditions

5. The power that is conferred by subsection 36(5.2) of the Act may be exercised if

  • (a) the proposed regulations are published in the Canada Gazette at least 30 days before the day on which they are made; and
  • (b) before the proposed regulations are published, the Minister provides the President of the Treasury Board with an estimate of the costs of their implementation.

Coming into force

6. These Regulations come into force on the day on which they are registered.

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