The federal government has proposed a new draft regulation for industries that have provincial water discharge permits that don’t comply with the broader Fisheries Act prohibition.
According to a February 15, 2014 statement from the Department of Fisheries and Oceans, “this uncertainty could pose a challenge to some industries in that it could discourage investment decisions or delay business development.”
Essentially, the proposed regulation aims to provide legal certainty for industries or researchers who work with water in some capacity that may prove harmful. Some courts have already made broad interpretations about subsection 36(3) of the Fisheries Act, which protects active fish waters from the dumping of harmful substances.
The draft Conditions for Making Regulations Under Subsection 36(5.2) of the Fisheries Act regulations highlight three circumstances that permit discharges into active fish waters: controlling invasive species; enabling pollution prevention research; and managing activities, waters and harmful substances already controlled at the federal or provincial level.
The Department of Fisheries and Oceans stated that the federal Fisheries Act, in its current form, has “limited flexibility” to authorize research activities that involve discharges into water. The proposed change would allow Canada’s renowned Experimental Lakes Area to operate under federal jurisdiction in Ontario.
“[International Institute for Sustainable Development] continues to negotiate with both Ontario and the federal government, and we are hopeful that a final arrangement regarding legal transfer of the Experimental Lakes Area can be reached in the coming weeks,” said Scott Vaughan, the Institute’s president and CEO, in a February 14, 2014 announcement.
Under the draft regulations, the federal Ministry of the Environment would ensure that research contributes to the development of knowledge around pollution prevention in active fish waters; the research findings must be made public; the research avoids harmful effects other than what is required for valid scientific results; remediation is to be completed within 20 years of the project date.
The draft regulation would also provide clarity around the use of harmful substances in the water. The deposits, or the source of the deposits, must: meet conditions relating to the Canadian Water Quality Guidelines for the Protection of Aquatic Life, their site-specific application, or science-based guidelines that offer similar protection; be subject to an enforcement and/or compliance regime, and the whole of the deposit must not be acutely lethal to fish.
Lastly, the federal Ministry of Fisheries and Oceans is proposing a regulation to authorize the deposit of harmful substances into water for the purposes of controlling aquaculture, aquatic pests and aquatic invasive species.
The 30-day comment period for the draft regulation ends on March 17, 2014. Comments should be directed to Peter Ferguson, Manager of Legislation and Regulatory Affairs, Fisheries and Oceans Canada, Mail Station 14S020, 200 Kent Street, Ottawa, Ontario K1A 0E6.