On April 13, 2013, the federal government published in the Canada Gazette a proposed new regulation, the Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (the “Proposed Regulation”), under the Fisheries Act, R.S.C. 1985, c. F-14 (the “Act”). The Proposed Regulation would clarify the process and procedural requirements to obtain an authorization to alter, disrupt, or destroy fish habitat pursuant to s. 35(2)(b) of the Act, and would repeal the current procedure detailed in s. 58 and Schedules VI and VII of the Fishery (General) Regulation, SOR/93-53 (the “Regulation”).

The Proposed Regulation is part of the federal government’s efforts under “Canada’s Economic Action Plan” to eliminate duplication and delays in the current regulatory scheme for environmental review of major projects.

The information applicants for an authorization would be required to submit under the Proposed Regulation would be broadly similar to the information currently submitted. These requirements are described in Schedule I of the Proposed Regulation, and include:

  1. contact information of the applicant or authorized representative;
  2. a description of the proposed work, including its location;
  3. a description of the fish and fish habitat found at the location of the proposed work;
  4. a description of the likely effects of the proposed work on the fish and fish habitat;
  5. a description of the measures and standards that will be implemented to avoid or mitigate serious harm to fish;
  6. a quantitative description of the serious harm to fish that is likely to remain even after the implementation of the measures and standards to avoid or mitigate serious harm to fish;
  7. an offsetting plan in respect of serious harm to fish that is likely to remain after implementation of the measures described above; and
  8. an irrevocable letter of credit to cover the costs of implementing the offsetting plan submitted in support of the application.

A significant change is that under the Proposed Regulation these requirements would be mandatory, whereas currently most of this information (apart from the project description) is simply listed on the authorization application form as information that can be submitted and “will assist in assessing your application and help expedite its approval”. The practical impact of this change is likely to be slight, however, since applicants almost always provide such information in any event.

The other significant change is the establishment of statutory timelines for the processing of applications by the Ministry. The Proposed Regulation would impose the following notification requirements and deadlines on the Ministry:

  1. the Ministry must send a confirmation of receipt to the applicant indicating the date of receipt of the application;
  2. within 60 days or receipt of the application, the Ministry must notify the applicant whether the information received in  support of the application is complete or incomplete;
  3. steps 1 and 2 are repeated for each subsequent submission of outstanding information until the application is complete; and
  4. within 90 days of receiving a complete application, the Ministry must either issue the authorization or notify the applicant of the refusal to do so.

The 60 and 90 day deadlines would be subject to certain exceptions, such as where the applicant proposes changes to the work or where consultation is required before a decision regarding approval can be made. In such circumstances, however, the Ministry would be required to notify the applicant accordingly and again when the processing of the application is resumed.

On balance, the Proposed Regulation should be welcomed by project proponents. While the exception for consultation is likely to limit its overall effect, particularly with regard to some of the longest delays, it is certainly a step in the right direction and will in many cases streamline the planning and approval process.

The 30-day comment period on the Proposed Regulation has now expired. There is as yet no indication whether any changes to the text will be made as a result or when the Proposed Regulation will come into force.