Canada Gazette, Part I, Volume 148, Number 7: Experimental Lakes Area Research Activities Regulations

February 15, 2014

Statutory authority

Fisheries Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The pollution prevention provisions of the Fisheries Act (hereafter referred to as the Act) prohibit the deposit of any deleterious substance in water frequented by fish unless authorized by federal regulations made either under the Act or under another Act of Parliament. This prohibition creates a potential legal risk to operations of the Experimental Lakes Area (ELA), a scientific research facility in operation since 1968 which, due to the nature of that research, requires the ability to deposit substances that could be considered deleterious into water frequented by fish. The federal government has historically operated the ELA, although, as part of the Deficit Reduction Action Plan, Fisheries and Oceans Canada (DFO) announced its decision to cease its operation of the ELA. Subsequently, DFO has identified a prospective operator better suited than the Government of Canada to conduct whole-lake ecosystem manipulation and continue operation of the ELA.

Background

The ELA covers approximately 270 km2 in the Kenora District of Northern Ontario, and is made up of 58 small lakes and their terrestrial basins as well as three streams. The ELA is a unique, world-class facility for conducting whole-lake ecosystem experiments and can provide significant scientific contributions to the management of fish habitat and aquatic ecosystems. The Government of Canada believes that the continuation of such research is in the public interest, as it builds knowledge related to the conservation and protection of aquatic ecosystems. Further, the Government of Canada believes that non-governmental organizations are better suited to conduct the kind of whole-lake ecosystem manipulation that is undertaken at the ELA. Since 2012, the Government of Canada has been working to identify a non-governmental organization to operate the ELA. Those efforts include a discussion hosted by Fisheries and Oceans Canada and the Province of Ontario with ELA-related universities and other organizations, including the International Institute for Sustainable Development (IISD). The IISD is a not-for-profit organization, and as a prospective operator, the IISD is expected to continue similar scientific research at the Experimental Lakes Area.

In order to facilitate the transition of responsibility for the operation of the ELA to the new operator, the Government of Canada is working to put in place the necessary regulatory framework for conducting scientific research prior to the start of the research season (May 1, 2014).

Recent amendments to the Act have introduced a new authority to develop ministerial regulations to authorize deposits of deleterious substances under conditions established by the Governor in Council (GIC). These conditions are found in the proposed Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act (hereafter referred to as the Enabling Regulations), and include the ability for the Minister to authorize deposits related to aquatic research activities that provide useful information to support the purposes of the pollution prevention provisions of the Act.

The proposed process for operation of the ELA by the prospective operator is expected to meet the conditions set out in the Enabling Regulations, which allow for the development of ministerial regulations related to aquatic research activities. Therefore, Environment Canada is proposing the Experimental Lakes Area Research Activities Regulations (hereafter referred to as the ELA Ministerial Regulations) to authorize deposits of deleterious substances related to research activities at the ELA, in order to provide the necessary regulatory framework for continued operation of the ELA.

Conditions in the Enabling Regulations

The following are the conditions in the Enabling Regulations required to be met for aquatic research and the results of the Environment Canada assessment of the proposed governance processes for operation of the ELA facility by the prospective operator consulted regarding those conditions:

  1. There are processes in place such that the knowledge gained from research activities are for the purpose of managing, conserving, protecting or restoring fish populations or water frequented by fish:
    • This criterion is met by governance processes that outline an overall strategic research agenda for the facility and provide for the recommendation and approval of projects by a research advisory board (which is anticipated to include Government of Ontario representation). This body will take into account the purposes of the pollution prevention provisions of the Act when reviewing projects.
  2. There are processes in place such that the research is conducted under the supervision of a qualified person who has expertise in conducting aquatic research under similar conditions, as evidenced by a substantial and relevant peer-reviewed publication record:
    • This criterion is met by the operator employing a chief scientist, with relevant qualifications, who will supervise research activities at the facility.
  3. There are processes in place such that the research activities are designed to avoid harmful effects other than what is required to obtain valid scientific results, and to contain effects to waters within the boundary for which the authorization is given:
    • This criterion is met by the processes governing project approvals in which researchers must confirm the above, with supporting analysis. In addition, the research advisory board can only recommend and approve projects where it is satisfied that this is the case (based on the supporting analysis provided by the researchers).
  4. There are processes in place for natural or assisted remediation within 20 years directly following project completion in the event that deposits render the aquatic environment unsuitable for sustaining fish populations and/or fish populations unsuitable for human consumption:
    • This criterion is met by the processes governing project approvals in which researchers must submit a monitoring and remediation plan that satisfies the research advisory board that natural or assisted remediation will occur within 20 years following project completion. In addition, the operator will have processes for ensuring the availability of funds for remediation at the project level and for monitoring the status of waters frequented by fish impacted by research activities.
  5. There are processes in place to determine whether research activities are carried out in accordance with their design and to document any deviations from that design:
    • This criterion is met by a process for project reporting that requires researchers to submit annual reports, to a compliance manager, that identify and document any variances or exceptions from the project plan. The compliance manager will submit an annual report that will specifically identify these variances and/or exceptions to the research advisory board.
  6. There are processes in place that result in the findings from research activities being made available to the public:
    • This criterion is met by an open data policy established by the operator whereby results will be published within two years following the completion of research activities.

Objectives

The objectives of the proposed ELA Ministerial Regulations are to set out the conditions that will authorize the deposits of deleterious substances at the ELA. The ELA Ministerial Regulations are expected to provide the prospective operator with the regulatory framework, with respect to the Act, needed to operate the ELA.

Description

Insofar as the conditions established for the Minister in the Enabling Regulations have been satisfied, the proposed ELA Ministerial Regulations would allow for the deposit of a deleterious substance in the ELA during the course of aquatic research projects. The conditions that must be met under the ELA Ministerial Regulations are that

  1. The deposit is solely for scientific research;
  2. The operator must submit to the responsible officer a written annual report, no later than March 31 of each year for the previous calendar year, containing the following information pertaining to the previous year (the reporting period):
    • name of operator;
    • contact information for the operator, including address, telephone number and email, if any;
    • name(s) and résumé(s), including a list of publications, of the person(s) responsible for the supervision of all research projects occurring at the Experimental Lakes Area;
    • contact information for the person(s) responsible for the supervision of all research projects occurring at the Experimental Lakes Area, including address, telephone number and email, if any;
    • reporting period;
    • date of report; and
    • number of research projects during the reporting period.
    • For each of the research projects conducted during the reporting period, the operator must submit the following information:
      • title of the research project;
      • start and actual or projected end date for the research project;
      • name and affiliation of the lead researcher for the project;
      • summary of the project, including how the research project has or will contribute to the development of knowledge for the purpose of managing, conserving, protecting or restoring fish populations or water frequented by fish;
      • for each deposit made in relation to the project, if any, the date and/or duration of the deposit, the location and the substance deposited and the concentration of the substance in the deposit along with its flow rate, if applicable;
      • summary of findings to date, if any;
      • list of publications related to the project, if any; and
      • summary of any measures put into place to limit the harmful effects of deposits on fish populations and water frequented by fish.
  3. The operator must prepare, and update annually, an emergency response plan and make it readily available on site to persons who are to implement the plan. The emergency response plan shall include the following elements:
    • identification of risks for potential unanticipated deposits that could be reasonably expected to cause damage or danger to fish, fish habitat or the use by man of fish;
    • description of measures to prevent, prepare for and respond to the risks identified above;
    • list of individuals responsible for implementing the above-mentioned plan, including a description of roles and responsibilities; and
    • identification of the training required for relevant individuals, and alerting and notification procedures, including the measures to be taken to notify members of the public who may be adversely affected by an incident occurring.
  4. The operator must notify in writing a fisheries officer or fisheries inspector as soon as feasible in the event of unanticipated fish morbidity and mortality as a result of research activities occurring within the Experimental Lakes Area.
  5. The operator must notify the Director in writing within 10 business days in the event that the processes assessed by the Minister under the Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act change in a way that could result in one or more of the conditions outlined in section 3 of those Regulations no longer being met.

“One-for-One” Rule

It is intended that the operator will be a not-for-profit organization that engages in activities for a public purpose (i.e. research); therefore, the “One-for-One” Rule does not apply. The ELA Ministerial Regulations are expected to result in a new administrative and reporting requirement of approximately $1,200 annually. (see footnote 1) The prospective operator has been consulted on the estimated administrative costs.

Small business lens

It is intended that the operator will be a not-for-profit organization; therefore, it does not fall within the criteria of a “small business” as defined by the Treasury Board Secretariat. The operator is the only regulatee that would be affected by the proposed ELA Ministerial Regulations. Consequently, the small business lens does not apply to this proposal.

Consultation

The proposed ELA Ministerial Regulations have only one regulatee and are expected to have minimal impact on other stakeholders and/or the public at large. The key stakeholders that will be affected by the proposed ELA Ministerial Regulations are the prospective operator of the ELA and the Province of Ontario, which have been consulted throughout the development of the proposed ELA Ministerial Regulations. There were no major issues identified as a result of these consultations. The prospective operator consulted has expressed support for the development of the ELA Ministerial Regulations, as they would provide the necessary regulatory framework to operate the ELA and ensure compliance with the pollution prevention provisions of the Act.

Rationale

The research activities at the ELA can provide valuable scientific information to influence policy decisions related to human health and the environment and, in particular, to support the purposes of the pollution prevention provisions of the Act. However, the Government of Canada believes that non-governmental organizations are best suited to conduct the kind of whole-lake ecosystem manipulation that is undertaken at the ELA. Consequently, it is a priority for the Government of Canada to facilitate the operation of the ELA by a non-governmental organization. In order to facilitate this transition and to afford reasonable protection to the aquatic environment in the area, the Government of Canada is working to provide the necessary regulatory framework for conducting research activities.

The costs of the regulatory proposal are low, for both the operator of the ELA and the federal government, as the proposed ELA Ministerial Regulations have only one regulatee, which will be managed within existing resource allocations. The compliance costs associated with the proposed ELA Ministerial Regulations include those associated with the preparation of an annual report and establishment of an emergency response plan. It is anticipated that the administrative and financial burden associated with these documents would be minimal due to the fact that the information to be included already exists and is readily available to the regulatee.

As a result of the authorization provided by the proposed ELA Ministerial Regulations, there may be short- to medium-term effects to fish and to the water frequented by fish in the ELA. However, these environmental impacts would be balanced with the scientific advances and knowledge gained during the ELA operation, which are expected to provide broader environmental and societal benefits. There will also be processes in place for natural or assisted remediation within 20 years directly following project completion in the event that deposits render the aquatic environment unsuitable for sustaining fish populations and/or fish populations unsuitable for human consumption.

In developing the proposed ELA Ministerial Regulations, the Minister has been satisfied that the conditions set out in sections 3, 5 and 6 of the Enabling Regulations governing the Minister's authority to make regulations will be met. The processes and governance structure to be in place for the operation of the ELA have been proposed and discussed by the Government of Canada and the prospective operator. A preliminary assessment of these processes has been conducted, which deems the conditions to have been met. However, while the IISD has expressed interest in becoming the new operator of the ELA, a definitive agreement is not yet in place and its processes are not yet finalized. Therefore, a final assessment by the Minister will occur once an operator has been confirmed.

Implementation, enforcement and service standards

Implementation and enforcement

The proposed ELA Ministerial Regulations would come into force on the day on which they are registered.

Environment Canada's enforcement officers will be responsible for the enforcement of the proposed Experimental Lakes Area Research Activities Regulations. In verifying compliance with the ELA Ministerial Regulations, fisheries officers and inspectors will apply the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. The policy document, jointly published in November 2001 by Environment Canada and the Department of Fisheries and Oceans, outlines among others,

Further details on the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act, are available at the following Web site : www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=D6B74D58-1&offset=1&toc=show.

Contacts

Stéphanie Johnson
Director
Forestry Products and Fisheries Act Division
Environmental Stewardship Branch
Environment Canada
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-934-5189
Fax: 819-994-9848
Email: FPFA-PFLP@ec.gc.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Strategic Policy Branch
Environment Canada
10 Wellington Street
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-7651
Fax: 819-953-3241
Email: RAVD.DARV@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Fisheries and Oceans, pursuant to subsection 36(5.2) (see footnote a) of the Fisheries Act (see footnote b), proposes to make the annexed Experimental Lakes Area Research Activities Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Stéphanie Johnson, Director, Forest Products and Fisheries Act Division, Industrial Sectors Directorate, Environmental Stewardship Branch, Department of the Environment, 351 Saint-Joseph Blvd., 19th Floor, Gatineau, Quebec K1A 0H3 (fax: 819-994-9848; email: FPFA-PFLP@ec.gc.ca).

Ottawa, January 30, 2014

GAIL SHEA
Minister of Fisheries and Oceans

EXPERIMENTAL LAKES AREA RESEARCH ACTIVITIES REGULATIONS

Definitions

1. The following definitions apply in these Regulations.

“Act”
« Loi »

“aquatic research project”
« projet de recherche aquatique »

“Act” means the Fisheries Act.
“aquatic research project” means a project that involves the deposit of a deleterious substance in water frequented by fish and any monitoring related to that project.

“deleterious substance”
« substance nocive »

“deleterious substance” has the same meaning as in subsection 34(1) of the Act.

“Director”
« directeur »

“Director” means the Director, Forest Products and Fisheries Act Division, Industrial Sectors Directorate, Environmental Stewardship Branch, Department of the Environment.

“Experimental Lakes Area”
« Région des lacs expérimentaux »

“Experimental Lakes Area” means the area located in Ontario and comprising the lakes set out in Schedule 1 and the streams set out in Schedule 2.

“operator”
« exploitant »

“operator” means the person who manages the Experimental Lakes Area.

Application

2. These Regulations apply in respect of the Experimental Lakes Area.

Authority to deposit deleterious substance

3. A deleterious substance may be deposited in the Experimental Lakes Area during the course of an aquatic research project if the purpose of the deposit is solely for scientific research and the conditions set out in sections 4 to 7 are met.

Condition — annual report

4. The operator must, not later than March 31 of each year, submit to the Director a report for the preceding calendar year containing the following information:

Condition — emergency response plan

5. (1) The operator must prepare an emergency response plan, update it annually and make it readily available on site to the persons who are to implement it.

Elements of the plan

(2) The emergency response plan must include the following elements:

Condition — requirement to notify

6. The operator must notify a fishery officer or an inspector in writing as soon as feasible in the event of unanticipated morbidity and mortality in fish that occurs as a result of any aquatic research project conducted in the Experimental Lakes Area.

Time limit for notification

7. The operator must notify the Director in writing if the processes referred to in section 3 of the Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act change in a way that could result in a failure to meet one or more of the conditions set out in that section, and must do so not later than 10 business days after that change occurs.

Coming into force

8. These Regulations come into force on the day on which they are registered.

SCHEDULE 1
(Section 1)

LAKES
Item

Column 1

Lake Number

Column 2

Latitude

Column 3

Longitude
1. 93 49°44′55″N 93°50′45″W
2. 106 49°44′04″N 93°46′31″W
3. 109 49°44′23″N 93°49′10″W
4. 110 49°44′37″N 93°49′19″W
5. 111 49°44′34″N 93°50′06″W
6. 114 49°40′18″N 93°45′22″W
7. 115 49°40′36″N 93°46′46″W
8. 149 49°41′13″N 93°55′51″W
9. 164 49°37′18″N 93°49′12″W
10. 165 49°37′27″N 93°48′40″W
11. 191 49°34′43″N 93°46′46″W
12. 220 49°42′20″N 93°43′44″W
13. 221 49°42′05″N 93°43′36″W
14. 222 49°41′47″N 93°43′21″W
15. 223 49°41′54″N 93°42′28″W
16. 224 49°41′24″N 93°43′01″W
17. 225 49°41′15″N 93°42′50″W
18. 226 49°41′23″N 93°44′38″W
19. 227 49°41′16″N 93°41′20″W
20. 239 49°39′46″N 93°43′22″W
21. 240 49°39′16″N 93°43′36″W
22. 260 49°41′49″N 93°46′02″W
23. 261 49°42′50″N 93°41′56″W
24. 262 49°42′42″N 93°41′33″W
25. 265 49°43′32″N 93°37′44″W
26. 302 49°40′36″N 93°45′39″W
27. 303 49°39′51″N 93°44′30″W
28. 304 49°39′33″N 93°44′55″W
29. 305 49°41′27″N 93°41′33″W
30. 309 49°39′46″N 93°38′49″W
31. 310 49°39′55″N 93°38′05″W
32. 373 49°44′41″N 93°47′55″W
33. 375 49°44′44″N 93°47′16″W
34. 377 49°43′16″N 93°46′23″W
35. 378 49°42′38″N 93°46′32″W
36. 382 49°42′18″N 93°40′40″W
37. 383 49°42′57″N 93°37′41″W
38. 385 49°42′49″N 93°36′37″W
39. 421 49°45′16″N 93°43′14″W
40. 428 49°45′29″N 93°46′00″W
41. 442 49°46′32″N 93°49′03″W
42. 470 49°39′33″N 93°44′04″W
43. 622 49°45′52″N 93°50′50″W
44. 623 49°45′56″N 93°50′11″W
45. 624 49°46′08″N 93°49′21″W
46. 626 49°45′12″N 93°47′52″W
47. 627 49°45′29″N 93°47′10″W
48. 629 49°44′57″N 93°50′09″W
49. 632 49°40′36″N 93°47′36″W
50. 635 49°39′07″N 93°49′03″W
51. 658 49°44′01″N 93°44′13″W
52. 659 49°43′30″N 93°45′26″W
53. 661 49°39′34″N 93°44′26″W
54. 663 49°37′56″N 93°44′10″W
55. 664 49°37′24″N 93°44′39″W
56. 938 49°40′22″N 93°57′38″W
57. 979 49°38′48″N 93°43′34″W
58. 980 49°37′36″N 93°43′58″W

SCHEDULE 2
(Section 1)

STREAMS
Item Stream
1. Stream between Lake 649 (49°48′59″N, 93°45′33″W) and Lake 653 (49°46′49″N, 93°47′58″W)
2. Stream between Lake 653 and Lake 376 (49°45′25″N, 93°44′37″W)
3. Stream between Lake 376 and Lake 660 (49°47′14″N, 93°41′41″W)

[7-1-o]