Authorizations Concerning Fish and Fish Habitat Protection Regulations (SOR/2019-286)

Definitions

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act

Act means the Fisheries Act. (Loi )

DFO technical standards

DFO technical standards means a document, as amended from time to time, of a technical or explanatory nature that is published by the Department of Fisheries and Oceans and that provides measures to avoid the death of fish or to mitigate the extent of their death and to avoid or mitigate the harmful alteration, disruption or destruction of fish habitat. (normes techniques du MPO)

existing facility

existing facility means a structure constructed prior to July 14, 1977, and located wholly or partially in fish habitat. (installation existante)

municipality

municipality means an incorporated city, town, village, metropolitan authority, township, district, county or rural municipality or other incorporated municipal body however designated. (municipalité)

Authorizations

Marginal note:Issuance of authorization

2 The Minister may, on application, issue an authorization referred to in paragraph 34.4(2)(b) or 35(2)(b) of the Act.

Marginal note:Application for authorization

• 2.1 (1) Subject to subsection (2), an application in respect of one or more works, undertakings or activities must be made to the Minister in writing and include

  • (a) the information and documents set out in Part 1 of Schedule 1; and

  • (b) the information and documents set out in Part 2 of Schedule 1.

• Marginal note:Application — existing facility

  (2) An application in respect of one or more works, undertakings or activities in relation to the operations of an existing facility must be made to the Minister in writing and include

  • (a) the information and documents set out in Part 1 of Schedule 3; and

  • (b) the information and documents set out in Part 2 of Schedule 3.

• Marginal note:DFO technical standards

  (3) Despite subsection (1), an application in respect of one or more works, undertakings or activities need not contain the information and documents referred to in paragraph (1)(b) with respect to any work, undertaking or activity for which the applicant confirms in writing that the applicable chapter of the DFO technical standards will be followed.

• Marginal note:DFO technical standards — existing facility

  (4) Despite subsection (2), an application in respect of one or more works, undertakings or activities in relation to the operations of an existing facility need not contain the information and documents referred to in paragraph (2)(b) with respect to any work, undertaking or activity for which the applicant confirms in writing that the applicable chapter of the DFO technical standards will be followed.

Marginal note:Information to be provided — 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 one or more works, undertakings or activities that need 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 under section 2.1

• 4 (1) This section applies to applications referred to in section 2.1.

• 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:Risk assessment by Minister

  (2.1) For the purposes of subparagraphs (3)(b)(i) and (c)(i), the Minister must conduct a risk assessment in respect of an application for authorization in order to determine whether offsetting the death of fish or the harmful alteration, disruption or destruction of fish habitat is required.

• Marginal note:90-day time limit

  (3) Subject to subsections (6) and (8), the Minister must, within a period of 90 days beginning on the day on which the application is received, notify the applicant in writing of one of the following:

  • (a) the application is inadequate with respect to the information and documents referred to in subsection 2.1(1) or (2), in which case the notification must specify the information or documents to be provided;

  • (b) the application is adequate with respect to the information and documents referred to in subsection 2.1(1) or (2), and that

    • (i) further to a risk assessment that was conducted by the Minister, offsetting the death of fish or the harmful alteration, disruption or destruction of fish habitat is not required, and

    • (ii) if applicable, the Minister considers that consultations are required; or

  • (c) the application is adequate with respect to the information and documents referred to in subsection 2.1(1) or (2), and that

    • (i) further to a risk assessment that was conducted by the Minister, offsetting the death of fish or the harmful alteration, disruption or destruction of fish habitat is required and the following must be provided:

      • (A) the information and documents set out in Part 3 of Schedule 1, if the application is in respect of one or more works, undertakings or activities,

      • (B) the information and documents set out in Part 3 of Schedule 3, if the application is in respect of one or more works, undertakings or activities in relation to the operations of an existing facility, and

      • (C) 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 offsetting plan referred to in Part 3 of Schedule 1 or Part 3 of Schedule 3, and

    • (ii) if applicable, the Minister considers that consultations are required.

• Marginal note:Exception

  (3.1) Clause (3)(c)(i)(C) does not apply if the applicant is His Majesty in right of Canada or of a province, the government of a territory, a municipality or an Indigenous governing body.

• Marginal note:Confirmation of receipt

  (4) The Minister must, on receipt of all of the information or documents set out in the notification referred to in paragraph (3)(a), send to the applicant a confirmation of receipt that indicates the date of receipt.

• Marginal note:Subsection (3) applies again

  (4.1) Once the confirmation of receipt is sent, subsection (3) applies to the application again, except that the period begins on the date indicated in the confirmation of receipt.

• Marginal note:Application adequate

  (4.2) If the application is adequate with respect to the information and documents referred to in subsection 2.1(1) or (2) and those referred to in subparagraph (3)(c)(i), if applicable, and the consultations referred to in subparagraph (3)(b)(ii) or (c)(ii), if applicable, have been conducted, the Minister must notify the applicant in writing to that effect.

• Marginal note:Minister’s decision

  (5) Subject to subsections (6) and (8), the Minister must, within a period of 60 days beginning on the date of the notification referred to in subsection (4.2), issue an authorization to the applicant or notify them 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 relevant information or documents other than those referred to in subsection 2.1(1) or (2) and subparagraph (3)(c)(i), if applicable, be obtained or that amendments to the information or documents submitted by the applicant be made before the Minister makes their decision under subsection (5);

  • (d) the Minister considers that consultations are required before they make their decision under subsection (5); 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 Minister makes their decision under subsection (5).

• 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 consultations referred to in paragraph (6)(d) have 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, 2 or 3 that are necessary to support the request; and

• (d) a 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 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 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:90-day time limit

  (2) Subject to subsections (5) and (7), the Minister must, within a period of 90 days beginning on the day on which the request is received, notify the authorization holder in writing of one of the following:

  • (a) the request is inadequate with respect to the information and documents referred to in sections 5, 6 or 7, in which case the notification must specify the information or documents to be provided; or

  • (b) the request is adequate with respect to the information and documents referred to in sections 5, 6 or 7.

• Marginal note:Confirmation of receipt

  (3) The Minister must, on receipt of all of the information or documents set out in the notification referred to in paragraph (2)(a), send to the authorization holder a confirmation of receipt that indicates the date of receipt.

• Marginal note:Subsection (2) applies again

  (3.1) Once the confirmation of receipt is sent, subsection (2) applies to the request again, 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 60 days beginning on the date of the notification referred to in paragraph (2)(b), 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 relevant information or documents other than those referred to in sections 5 to 7, as applicable, be obtained or that amendments to the information or documents submitted by the authorization holder be made before the Minister makes their decision under subsection (4);

  • (d) the Minister considers that consultations are required before they make their decision under subsection (4); 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 Minister makes their decision under subsection (4).

• 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 consultations referred to in paragraph (5)(d) have 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.