Information required for the consideration of the approval of activities otherwise prohibited under the Species At Risk Act

On this page

• 1.0 Purpose
• 1.1 Introduction
• 2.0 Additional information requirements to address the Species at Risk Act (SARA) conditions
• 2.1 Purpose of the activity
• 2.2 Conditions related to project design
• 2.2.1 Reasonable alternatives
• 2.2.2 Implementation of feasible measures to minimize the impacts
• 2.2.3 Jeopardy

1.0 Purpose

Section 74 of the Species at Risk Act (SARA) allows a Fisheries Act authorization to act as a SARA permit, thereby authorizing activities that affect aquatic species at risk.^{Footnote 1} However, prior to the issuance of a SARA permit conditions listed in section 73 of SARA must be met. 

This document applies if you are seeking a Fisheries Act authorization under paragraphs 34(2)(b) and 35(2)(b) for works, undertakings and/or activities that may also affect aquatic species at risk, any part of their critical habitat or their residences, in a manner which is prohibited under section 32, 33 and/or subsection 58(1) of SARA.  In this case, you will need to provide additional information about the species you are affecting when you submit an application for authorization.

The information requirements  identified in this document are needed to supplement and further refine the information that must be provided in an application for authorization under paragraphs 34(2)(b) and 35(2)(b) of the Fisheries Act.  For more information on the documentation that must be submitted with an application for authorization see the Applicant's Guide,^{Footnote 2} supporting the Authorizations Concerning Fish and Fish Habitat Protection Regulations (Fisheries Act Application Regulations).

Fisheries and Oceans Canada (DFO) will use the information provided to assess if the requirements of section 73 of SARA are met prior to making a decision of whether or not to authorize the activity(ies) under the Fisheries Act. If approved, this material will also inform the establishment of the conditions of such an authorization. The decision making process under the Fisheries Act will not be concluded until all of the information is provided and the requirements of section 73 of SARA have been met.

1.1 Introduction

The purposes of SARA are to prevent wildlife species from becoming extirpated or extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened.

SARA prohibits the killing, harming, harassing, capturing, taking, possessing, collecting, buying, selling or trading of individuals of aquatic species at risk.^{Footnote 3} The damage or destruction of aquatic species at risk residences^{Footnote 4} is also prohibited under SARA. A residence is a dwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating. When a residence is identified for a specific aquatic species at risk, it will be described in its recovery strategy. These prohibitions apply to individuals of listed endangered, threatened and extirpated species and their residences wherever they are found in Canada (including private lands and lands under provincial jurisdiction).

SARA also prohibits the destruction of any part of critical habitat.^{Footnote 5} Critical habitat is the habitat necessary for the survival or recovery of a species, and is identified in the recovery strategy or action plan produced for that particular species.  Recovery strategies and action plans are available in the Species at risk public registry. Please note that the SARA prohibitions do not apply to species listed as species of special concern.

If your work, undertaking or activity could result in the contravention of the fish an fish habitat protection provision of the Fisheries Act, as well as prohibited effects on aquatic species at risk, you require approval under SARA and the Fisheries Act. Pursuant to section 74 of SARA, an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act can be also used to authorize works, undertakings or activities that result in the death of fish, the harmful alteration, disruption or destruction of fish habitat, as well as prohibited effects on aquatic species at risk, provided that certain conditions are met. Among these conditions, the Minister must be of the opinion that the activity is:

• scientific research relating to the conservation of the aquatic species and conducted by qualified persons
• an activity that benefits the aquatic species or is required to enhance its chance of survival in the wild or
• affecting the aquatic species is incidental to the carrying out of the activity^{Footnote 6}

As well, all 3 of the following conditions must be met:

• all reasonable alternatives to the activity that would reduce the impact on the species at risk have been considered and the best solution has been adopted
• all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals and
• the activity will not jeopardize the survival or recovery of the species^{Footnote 7}

It is therefore necessary that the information provided with your application for a Fisheries Act authorization clearly demonstrates that these conditions can be met. To avoid delays, please provide as much information as possible with your application. A description of each element of the required information is provided below.

2.0 Additional information requirements to address the SARA conditions

When preparing an application for a Fisheries Act authorization, please include a summary table indicating where the information regarding the aquatic species at risk can be found.

2.1 Purpose of the activity

When describing your proposed work, undertaking or activity, you will need to demonstrate how the purpose of the proposed activity fits into one of these categories. Indicate in your submission which option best describes the purpose of your activity(ies), and explain why the activity(ies) fits that category. In most cases, there will only be one purpose. However, when appropriate, indicate and explain if different purposes apply to different activities or different aquatic species at risk. For example, activities benefitting "species at risk A" may incidentally affect "species at risk B".

• Scientific research relating to the conservation of the species: This option applies to activities related to a research project conducted by a qualified person (e.g., a scientist from a university) that is focussed on obtaining information that will contribute to the survival or recovery of the aquatic species at risk.
• The activity benefits the species or is required to enhance its chance of survival in the wild: This option applies to works, undertakings or activities that are expected to benefit the aquatic species at risk or those upon which the survival or recovery of the aquatic species depend on such as habitat restoration projects. Note that this does not include scientific research, which is part of the category a), described above.
  
  This category does not apply to offsetting measures carried out to counterbalance impacts on fish and fish habitat. Offsetting measures are part of the category below (see (c)) as the impacts to aquatic species at risk are incidental to the carrying out of the development project.
• Affecting the species is incidental to the carrying out of the activity: This category applies when the main purpose of the activity does not specifically target the aquatic species at risk. Examples include:
  • any activities occurring in or near water that have the potential to affect an aquatic species at risk (e.g., bridge construction, shoreline stabilization work, pipeline installations or repairs)
  • hydroelectric, mining, coastal, oil and gas, or other industrial developments;
  • any avoidance, mitigation and offsetting measures implemented for the protection and conservation of fish and fish habitat, including aquatic species at risk, their critical habitat and residence, during the carrying out of works, undertakings or activities, such as:
    • fish surveys being done as part of an environmental assessment or a general planning exercise to determine which species are present in a watercourse; dewatering and capture, relocation or salvage of aquatic species at risk; habitat restoration and
    • offsetting measures to counterbalance impacts on aquatic species at risk

2.2 Conditions related to project design

2.2.1 Reasonable alternatives

Ensure that the information provided demonstrates that all reasonable alternatives to the activity that would reduce the impact on the aquatic species at risk have been considered and the best solution has been adopted. Provide a description of all alternatives to the proposed activity(ies) that were considered to avoid or reduce the impact on aquatic species at risk, such as:

• other locations that have been considered that are outside of the aquatic species' range or critical habitat
• alternative timelines to avoid sensitive life processes
• other techniques, designs, equipment or processes that could achieve the same outcomes

Explain why the current proposal was chosen as the best alternative relative to the survival or recovery of the aquatic species at risk, including any selection criteria that were used, and how the selection criteria were applied.

2.2.2 Implementation of feasible measures to minimize the impacts

Demonstrate that all feasible measures have been taken to minimize the impact of the activity on the aquatic species at risk, its critical habitat or the residences of its individuals. Please provide:

• a description of the mitigation measures and standards that will be implemented (note that this may form the basis of conditions included in the authorization)
• an analysis of the effectiveness of the measures and standards to mitigate impacts to aquatic species at risk, including the expected outcome (i.e., qualitative characterization and quantitative metrics illustrating the reduction of impacts to aquatic species at risk, such as how impacts to aquatic species at risk are reduced by the proposed measures and standards) and
• an identification of any reduction in impacts to aquatic species at risk and when this will be achieved

2.2.3 Jeopardy

To demonstrate that the impacts of the activity will not jeopardize the survival or recovery of the aquatic species at risk, the effects on the species must be clearly described. When providing a description of the effects of the proposed work, undertaking or activity on fish and fish habitat (see Schedule 1 section 9 of the Fisheries Act Applications Regulations), also specify the following:

Effects on individuals of aquatic species at risk

• State which aquatic species at risk are likely to be affected (e.g., harmed, harassed, captured, taken, possessed or killed) and the life stages potentially affected. Include common and scientific names and their status under SARA.
• Specify the nature of the effect (e.g., mortality, non-lethal bodily injury, stress), and its magnitude (i.e., the intensity or severity of the effect including an estimate of the number of individuals by species likely to be affected, or qualitative effects, e.g., low, medium, high). Indicate the probability or likelihood of the effect occurring.
• For non-lethal effects, indicate their duration (e.g., duration of delay to migration of the species in hours, days, months or years).

Effects on residences of aquatic species at risk

• If any of the aquatic species potentially affected has a residence(s) (e.g., spawning redd) in the area that will be affected by the work, undertaking or activity, specify the number of residences for each species found at that location , and estimate the number of residences that may be damaged or destroyed. Note that the description of residence of aquatic species at risk can be found in the Recovery Strategy or the Action Plan of the species. Describe how the impacts on residence could affect the overall population of the species.

Effects on critical habitat

• Of the fish habitat potentially affected by the activity, specify if any of this habitat is identified as critical habitat for a listed aquatic species at risk. If so, provide a description of the particular characteristics of the habitat that specifically support the aquatic species at risk directly or indirectly in carrying out their life processes.Critical habitat is identified in the Recovery Strategy or Action Plan of the species.
• Provide a description of the type of habitat and an estimate of the extent (e.g., m2) of habitat that will be affected. Indicate the probability or likelihood, the magnitude (i.e., intensity or severity) and the duration of the effect. Make reference to the functions, features and attributes referenced in the description of critical habitat provided in the Recovery Strategy or Action Plan for that species.
• Describe how the effects of the activity on the functions, features and attributes of critical habitat could, in turn, affect the overall population of the species and indicate the implications for recovery (e.g., increased noise levels interfere with marine mammal mating calls reducing the likelihood of successful reproduction that could, in turn, result in a decline in the population growth).

Summary of impacts

The information listed above could be provided in the following table format using the following headings:

• Describe how all the above information was derived, including the estimation methodologies used. Where relevant, make reference to the Recovery Strategy, Action Plan, Recovery Potential Assessment, and Committee on the Status of Endangered  Wildlife in Canada (COSEWIC) Status report of the aquatic species at risk.

Offsetting

• Offsetting plans are required as part of an application for a Fisheries Act authorization.  When there are persistent effects (i.e. effects after mitigation) on aquatic species at risk, the offsetting measures must counterbalance effects such as the killing of individuals of aquatic species at risk, the destruction of their critical habitat, and/or the damage or destruction of the residence of their individuals. To achieve this, the selection of offsetting measures should focus on concrete actions aimed at meeting the population and distribution objectives of the species as described in its recovery strategy, action plans and/or management plans. DFO will consider the proposed offsetting plan when determining if the anticipated effects of the activity could jeopardize the survival or recovery of the species.

All components of the offsetting plan must include specific information on the aquatic species at risk for which there are offsetting measures, as set out in section 16 of Schedule 1 of the Fisheries Act Applications Regulations.

Jeopardy to survival or recovery of the species

• Taking the above into account, please explain why you believe the proposed work, undertaking or activity will not jeopardize survival or recovery of the aquatic species at risk.