Fisheries Protocols Undermined by Crippling Cutbacks
From Eco Issues
Contents |
Background
Two fisheries protocol decision notices were posted on the Registry during the 2007- 2008 reporting period. The decision notice regarding “An Inter-jurisdictional Compliance Protocol for Fish Habitat and Associated Water Quality” (the "2007 Compliance Protocol") was posted in November 2007; the protocol provides direction for federal, provincial and municipal agencies with “enforcement and compliance interests in the protection of fish habitat and water quality.” The agencies bound by the 2007 Compliance Protocol include: the federal departments of Fisheries and Oceans Canada (DFO), Environment Canada (DOE), Parks Canada, and Transport Canada; the Ontario ministries of Natural Resources (MNR), Environment (MOE), and Agriculture, Food and Rural Affairs (OMAFRA); and Ontario conservation authorities (CAs). The 2007 Compliance Protocol introduced a significant change in agency roles, transferring lead responsibility for enforcement and compliance from MNR to DFO. The transfer of leadership actually was put into practice in 2004, when the interim version of the compliance protocol was released.
The change in authority also applied to fish habitat impact reviews of provincial highway undertakings by the Ministry of Transport (MTO); MTO produced the “MTO/ DFO/OMNR Protocol for Protecting Fish and Fish Habitat on Provincial Transportation Undertakings” (the “2006 MTO Protocol”) – the final decision notice was also posted on the Registry in November 2007 – to incorporate the change in authority. The 2006 MTO Protocol introduced another significant revision, one that allows MTO to “self-screen” projects for compliance.
Description
Both protocols, the 2007 Compliance Protocol and the 2006 MTO Protocol, describe roles and responsibilities of the member agencies and guide users through a decision matrix. In the case of the 2007 Compliance Protocol, agencies are guided in their response to occurrences and complaints of potential contraventions of their fisheries legislation. In the case of the 2006 MTO Protocol, agencies and MTO service providers (consultants, contractors and contract administrators) are guided in how to comply with fisheries legislation while carrying out provincial transportation projects. The latter protocol, therefore, focuses on project review and approval. A third protocol was released during the early part of the 2008-2009 reporting period that deals with project review and approval in relation to all projects, including those of MTO. It will be discussed in a future ECO Annual Report (see Proposal for a Fish Habitat Referral Protocol).
The Federal Fisheries Act
The main piece of legislation addressed by the two protocols is the federal Fisheries Act (FA), the only federal statute with a primary goal of protecting fish and fish habitat. The FA contains very strong protection provisions:
- Section 35(1) prohibits activities that cause the harmful alteration, disruption or destruction (HADD) of fish habitat unless authorized by the minister. HADDs are authorized only when mitigation measures demonstrate “no net loss” of productive capacity of fish habitat.
- Section 36(3) prohibits the deposition of deleterious substances into water frequented by fish. For prosecutions under this section, it is sufficient to demonstrate potential to cause harm to fish.
The 2007 Compliance Protocol
The 2007 Compliance Protocol assigned DFO the lead role in enforcement for s.35(1), and for s.36(3) where the substance is sediment. DOE has lead responsibility for enforcement of s.36(3) where the substance is chemical in nature. MNR and MOE are required to carry out supporting roles: MNR in cases involving habitat destruction and pollution from sediment, and MOE in cases involving chemical pollution. The protocol defines the obligation of these two ministries as dependent on “available resources and capacity.”
The 2006 MTO Protocol
The 2006 MTO Protocol applies to all MTO projects and all fish and fish habitat, and pertains to the administration of s.35 of the FA. Deposition of deleterious substances is addressed by directing users to the MOE Spills Action Centre. Erosion and sediment control are addressed in a supporting guide; one of many “Environmental Standards and Practices” (ESP) documents released in 2006 and 2007 (see the relevant decision review in Section 3.11 of this Annual Report).
The 2006 MTO Protocol is also considered an ESP document, and other documents in this series support the implementation of the protocol. The “Environmental Guide for Fish and Fish Habitat” (the “Fish Guide”) is the main supporting document, offering extensive details on the protocol process and related scientific information. (The 2007 Compliance Protocol and 2006 MTO Protocols are discussed in more detail as decision reviews in Section 4.22 of the Supplement to this Annual Report.)
Smart Regulation
The two protocols are examples of the implementation of a federal government initiative called “Smart Regulation,” announced during the Speech from the Throne in September 2002. The goal of this strategy is to streamline the regulatory process in order to improve Canada’s position in the global market. In support of the strategy, DFO released its Environmental Process Modernization Plan (EPMP) in 2004. The EPMP streamlines regulation, primarily, through a risk management framework that concentrates efforts on projects with the greatest risk to fish habitat, conserving resources for “other activities like monitoring and watershed planning.” MNR is also altering its practice. According to its website, the ministry is starting to develop “a formalized risk-based approach to compliance.”
Responses to complaints
Low-risk assessment may explain the minimal enforcement action taken during an incident in the Township of Muskoka Lakes, when township road construction led to an application for review under the Environmental Bill of Rights (EBR). The applicant complained of an alleged HADD occurrence and the release of sediment and other substances. The incident occurred in 2004, the same year the interim compliance protocol was released. DFO, MNR and MOE responded and decided that the township had shown due diligence, despite the fact that silt fences were not installed properly and that consultants confirmed an associated plume in the downstream lake (for a more detailed review of this application, please see Section 6.2 of the Supplement to this Annual Report).
MOE’s response to another complaint in 2007 suggests that the Ministry may not have the expertise to fully address its protocol role. The complaint concerned a large chemical spill that entered a Greater Toronto Area watercourse known to support the most diverse fish community in the watershed. Among the fish in this community was a provincially threatened species. MOE responded promptly and evaluated the spill’s impact, but its assessment was much different from the assessment made by a fisheries specialist from the local CA, who visited the site the following day. MOE reported the death of numerous minnows, while the specialist recorded thousands of dead fish, including the provincially threatened species and many non-minnow species.
Regulatory streamlining culminated in large DFO cutbacks that took effect between 2005 and 2007. Staffing in Ontario was reduced from 75 to 52 biologists and from 25 to nine fisheries officers. DFO biologists assess referrals of potential HADDs and determine mitigation measures required to protect fish and fish habitat, while fisheries officers respond to occurrence reports and take enforcement action. The Environmental Commissioner of Ontario (ECO) learned through correspondence with MNR that, “MNR was concerned about DFO’s ability to deliver on its part of the Compliance Protocol, and raised this issue to DFO at the fall 2005 meeting of the Canada-Ontario Fisheries Advisory Board. DFO indicated that they would be able to meet their commitments of the Protocol, and thus it was decided to move forward with releasing the 2007 Compliance Protocol.”
Implications of the cutbacks
Providing MTO with the ability to self-screen its projects leaves DFO with less of a role in the 2006 MTO Protocol. According to the 2006 MTO Protocol and Fish Guide, MTO can proceed with undertakings that are at or beyond 30 metres of a watercourse (determined from the ordinary high water mark) without notifying DFO. MTO relies on maps to complete this exercise. If there is a watercourse within 30 metres, MTO must decide through self-screening whether: (1) a HADD is unlikely with mitigation; (2) fish and fish habitat sensitivity is low (based on MNR data); and (3) the project extent, duration and intensity are all low. If all three conditions are met, MTO assesses these projects as low risk, sends a “No HADD Notification Form” to both DFO and MNR “for information only,” and proceeds with the undertaking. DFO may, however, “question MTO’s decision.” Projects likely to cause a HADD after mitigation, receive further investigation, followed by revisions to the mitigation requirements, the redesign of the undertaking and/or its relocation until a HADD is no longer likely. Through this process of assessment, mitigation and redesign, 90 per cent of MTO’s projects are determined to be low-risk (i.e. unlikely to cause a HADD). HADDs are addressed with a compensation plan developed with DFO. As an example of an unacceptable HADD, MTO’s Fish Guide offers “the installation of a new culvert over Species at Risk (SAR) habitat will be considered a HADD, and may be considered unacceptable by DFO unless all reasonable siting and design alternatives have been precluded.”
Fewer resources are allocated to low-risk projects. They may be self-screened by MTO, require no fisheries specialist on-site, do not hold contractors responsible for their erosion and sediment measures, and do not require post-construction monitoring. MTO and DFO perform joint annual audits, but only on five to ten per cent of projects. Maintenance contractors inspect all sites when a project ends to make sure everything is in place, but this involves much more than environmental factors. Construction contractors cover the costs of correcting their work up to the end of the warranty period (typically one year). In serious cases of non-compliance, MTO may issue an infraction notice and may, through this process, remove the contractor’s eligibility to bid in whole or in part on future contracts. Three environmental infractions were issued each year over the past three years.
The ECO 2004-2005 Annual Report reviewed an environmental audit ordered by MOE in response to an application for review from the previous year of MTO’s expansion of Highway 400 in the Muskoka district. The audit revealed numerous instances where highway contractors ignored rules. It also reported a lack of knowledge by all staff, including environmental inspectors. The audit recommended strengthening contract documents, building in penalties and providing training for all staff involved, including designers, contractors, contract administrators and environmental inspectors. It also recommended monthly inspection visits by DFO, MNR and MOE.
With federal agencies leading enforcement and compliance, contraventions of the FA are no longer subject to applications for investigations under the EBR. The ECO stopped forwarding applications of alleged FA contraventions to MNR and MOE in 2004 and directed potential applicants to contact the Commissioner of the Environment and Sustainable Development which accepts petitions related to FA enforcement and compliance. The Muskoka Lakes application, described above, was a valid application under the EBR due to alleged contraventions of provincial, as well as federal, legislation.
ECO Comment
The ECO commends provincial agencies for developing, with agency partners, fisheries protocols that clarify roles and responsibilities, but stresses that the protocols need adequate on-the-ground staffing to work. The ESP support documents produced by MTO are impressive resources for training and education that should greatly improve knowledge and understanding at MTO construction sites. The ECO is surprised that MTO did not require appropriate compliance monitoring to complement its ESP investment. The lack of properly skilled environmental inspectors at 90 per cent of MTO’s undertakings greatly compromises the monitoring of fish and fish habitat compliance. The ECO strongly advises MTO to require fisheries specialists at all provincial transportation undertakings to support the intent of the 2006 MTO protocol.
The ECO is alarmed by the practice of assessing most activities as low-risk to fish and fish habitat and reducing associated enforcement under the guise of improving eff'ciency. Implementation of the two protocols in this way will increase the loss of fish and fish habitat. The ECO urges protocol agencies to promote the use of landscape-scale plans in assessing risk, so that broad-based ecosystem functions and potential cumulative impacts are taken into account. This data base should include small streams; such streams are critical components of a watershed, but are rarely featured on maps and are, therefore, not recognized in the current 2006 MTO Protocol process. With recent DFO staff cutbacks, a reliable foundation for decision-making becomes even more crucial.
Nine federal fisheries off'cers are not enough to enforce laws protecting fish and fish habitat in Ontario. The ECO strongly advises MNR and MOE to modify the 2007 Compliance Protocol agreement so that their responsibilities to protect fish and fish habitat for Ontarians are met. This may require changes to the 2007 Compliance Protocol, and MNR may have to re-assume the lead role in enforcing s.35(1) of the FA by signing a new agreement with DFO. The ECO also urges MOE to rectify any deficiencies in spill investigation caused by an absence of staff with proper skills in fish and fish habitat assessment.
A significant change in fisheries compliance in the past five years is that Ontario residents can no longer file applications for an investigation regarding alleged contraventions of the FA. In 2005, MOE strengthened s.30(1) of the Ontario Water Resources Act (OWRA), which should allow residents to take stronger actions under the EBR to protect water quality. The ECO urges MOE to ensure it develops policies on enforcement of s.30(1) of the OWRA that will partially address the gap left by the exclusion of the FA.
| Recommendation 9:
The ECO recommends that MTO strengthen its environmental compliance and enforcement programs to ensure that contractors correctly implement the MTO/DFO/MNR current fish and fish habitat protocols. |
| This is an article from the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2008. "Fisheries Protocols Undermined by Crippling Cutbacks." Getting to K(No)w, ECO Annual Report, 2007-08. Toronto: The Queen's Printer for Ontario. 106-111.
