11.0: Laws and Regulations

This section contains information about all the most important laws and regulations connected with water in our province.

There are two important Acts, which regulate your activities in the protection and restoration of fish habitats in Nova Scotia. They are the:

Nova Scotia Environment Act administered by the Nova Scotia Department of Environment and Labour and

Fisheries Act administered by the Department of Fisheries and Oceans Canada

Other Acts can come into play to regulate activities on or around the water, but for the purposes of work conducted under this program, they only required in rare situations or large projects. If you are proposing a project, an application for Approval to the Nova Scotia Department of Environment and Labour will trigger referral systems, which will circulate your proposal to all relevant Federal and Provincial government agencies. Staff will review your proposal to ensure it is in compliance with all the laws and regulations. The permit from NSDEL does not always give you permission from these other agencies so be sure to wait until you have all the permits and letters of permission you need before you start work. If in doubt contact your local Nova Scotia Department of the Environment and Labour office or the NSSA coordinator.

Government management in the watersheds is to protect water resources and maintain healthy ecosystems, and best management practices need to be developed and implemented in conjunction with regulators and in partnership with the landowners. The following is an outline of the Acts, which can come into play when working on or near the watercourse. For up to date information, policies, and programs see the Department web sites.
Fisheries & Oceans Authorization
The Fisheries Act, Section 35 (1), makes it illegal to harmfully alter disrupt or destroy (HADD) fish habitat in all freshwater, coastal, and marine areas. The Minister of Fisheries & Oceans may authorize the HADD under Section 35(2). Project proponents are responsible for assessing the impact of their activities on the productive capacity of the aquatic habitats to produce fish, which contribute to an aboriginal, commercial, or recreational fishery. If the project is going to harmfully alter disrupt or destroy fish habitat an authorization from DFO is required. If you have any doubt contact your local Fisheries office for advice. Habitat restoration when done properly should not harmful alter the habitat, but to be sure you are planning the project properly, you should consult the local Area office of DFO. DFO may be willing to aid you in the preparation of the provincial Approval application for restoration or enhancement. Habitat Management Division has developed a restoration template that is attached to the "Watercourse Alteration" application. This template provides DFO, HMD with additional information when review projects

The Canadian Environmental Assessment Act

Certain pieces of legislation are on the Law List under the Canadian Environmental Assessment Act (CEAA) and trigger an environmental assessment. The requirement to obtain an authorization under the Fisheries Act is one such trigger. At this time restoration work done by hand is very unlikely to harm fish habitat but machinery used in the watercourse may result in the requirement for an environmental review. Some of the structures used in restoration are being approved through a class screening process so if you are going to do the work according to the approved methods you may not have to prepare a formal environmental impact statement.

The Species at Risk Act SARA

This Act makes it illegal to disrupt the habitats of endangered or threatened species listed in the regulations. Information on the current list and the designation of critical habitats can be found at http://www.sararegistry.gc.ca. Your application for restoration work will be reviewed for impacts on these species but it is good to check before you undertake detailed planning. Your watershed restoration plan should include the protection and restoration of habitats of listed species and all the techniques in this manual are aimed at restoring the natural productivity of the watercourse but this may at times conflict with one or more of these species. You should be aware of the status of the Inner Bay of Fundy Atlantic salmon and the Atlantic Whitefish

Navigable Waters Protection Act

Navigable Water is any body of water capable of being navigated by floating vessels of any description for the purpose of transportation, commerce or recreation. This includes both inland and coastal waters. The final authority to determine the navigability of a waterway rests with the Minister of Transport or his/her designated representative. A permit is required for any work including:

any bridge, boom, dam, wharf, dock, pier, tunnel or pipe and the approaches or other necessary or associated works

any dumping of fill or excavation of materials from the bed of a navigable water,

any telegraph or power cable or wire, or § any structure, device or thing, whether similar in character to anything referred to in this definition or not, that may interfere with navigation.

NWPA Review Process

The NWPA is also on the CEAA Law List and may require an environmental review. Before you start your project, contact

Transport Canada

P.O. Box 1000

Dartmouth, Nova Scotia B2Y 3Z8

Phone: (902) 426-2726 Fax: (902) 426-7585

A Navigable Waters Protection (NWP) Officer will assist you in determining what information and documentation is required for preparing and submitting an application under the NWPA.

Once you have finalized the project design, submit your application to the nearest NWPP office, in your area including details regarding the applicant (yourself or your agent), the nature of the work, other permits obtained, property ownership and drawings and plans of proposed work. It is extremely important that plans be drawn accurately. Freehand sketches may not be acceptable and could delay approvals An "approval" issued under the NWPA authorizes the work only in terms of its effect on navigation.

It remains the owner's responsibility to obtain any other permits (i.e. federal, provincial or municipal), which may be required. Therefore, early in the planning stages you are encouraged to contact your local conservation authority, provincial Departments of Natural Resources/Environment/Fisheries and municipal offices to discuss their specific requirements.

Concerning construction of new works, there are two types of processes, which can be followed:

· the approval process subsection 5(1) of the NWPA

· the determination process subsection 5(2) of the NWPA

The approval process, subsection 5(1) is followed when the work has the potential to interfere with navigation. The determination process subsection 5(2) is followed when NWPP officer determine that the work does not interfere with navigation.

The approval process, subsection 5(1) is usually longer, requiring you to complete additional steps, including public advertisement of the details of the proposed work and the completion of an environmental assessment in accordance with requirements defined under the Canadian Environmental Assessment Act (CEAA). During the advertisement period and over the course of the CEAA review process, the public will have an opportunity to comment on the project's potential impact on navigation and on the environment. If approval of your proposed work is granted, it may include conditions, which you must follow in order to mitigate certain impacts your work may have on navigation and the environment.

The determination process, subsection 5(2) does not require formal advertisement or an environmental assessment.

To obtain an Application Form please contact your Regional NWPP office at Transport Canada. http://www.tc.gc.ca/marinesafety/Ships-and-operations-standards/nwp/guide.htm

Provincial Legislation - Water Approval, Watercourse Alteration

Who Needs This Approval?

Any persons or persons who wish to use or alter a watercourse or a water resource or any natural body of water by:

a. constructing or maintaining a culvert;

b. constructing or maintaining a bridge which is in the water course, or using equipment closer than 3 metres from the water course;

c. constructing or maintaining a causeway, wharf, weir, fishway or other instream structure;

d. removing material from a surface water course;

e. diverting a water course from its natural channel;

f. installing or maintaining fishing equipment, fishway, counting fence, fish habitat improvement structure, aquaculture cage or any similar structure in a water course;

g. dredging or any other modification of a surface water course;

h. installing or maintaining a pipeline, cable or other equipment in a surface water course;

i. placing rock or other erosion protection material in a surface water course;

j. any other alteration of a surface water course or the flow of the water.

An approval is not required for:

a. use of seawater;

b. use of brackish water from an intertidal zone of a river estuary;

c. maintenance of lands and structures incorporated by marsh bodies under the Marshland Reclamation Act .

Issuing Department / Agency: Nova Scotia Environment and Labour

Where can you get this Approval and / or further information?

Any Regional or District Office of Environment and Labour

http://www.gov.ns.ca/enla/offloc.htm

OR

HeadOffice Nova Scotia Environment and Labour

Phone: (902) 424-5300 Fax: (902) 424-0503

e-mail: ecs@gov.ns.ca

Office Location: Terminal Road Building 5151 Terminal Road 5th Floor Halifax, NS

Mailing Address: P.O.Box 697 Halifax, NS B3J 2T8

Application Forms & Process:

You can get an application form for this Approval from any Regional or District Office of the Department. After it has been completed, it is submitted to the Department. When the Department receives an application, staff review it to see if all the required information is on the form, and if the required supporting information has been provided. If not, the application package is returned with an explanation as to what is missing.

Once an application has been accepted by the Department as complete, the application form and supporting documentation undergo a technical review and evaluation. This is to decide if the activity being proposed meets the minimum standards, policies, guidelines, procedures and regulations that are administered by the Department. Review by the Department of Fisheries and Oceans (Canada), Transport Canada, local authorities and community organizations may form part of the review process.

If an applicant fails to meet these criteria, staff will tell them which specific criteria have not been met to the satisfaction of the Department. If an applicant meets all the criteria, the Approval will be sent to the applicant by mail.. This Approval will list any terms and conditions that the applicant must satisfy.

Waiting Period: A maximum of 60 days, provided that all the items that must accompany the application have been received.

Expiry & Renewal: This approval is valid until the expiry date included on the approval. It can be renewed.

Note, it is the responsibility of the Approval holder to contact the Department before it expires; NO NOTICE of renewal will be sent out by the Department.

Price: $100. Restoration projects planned through Adopt-a-Stream may be exempt from this fee.

Related Requirements: Terms and conditions will be issued for each specific proposal and activity. Other permits approvals that may be required:

a. Navigable Water Protection Act, 1985, Transport Canada;

b. Use of Crown Lands; See http://www.gov.ns.ca/snsmr/paal/dnr/paal066.asp

Additional Information:

1) "Watercourse" means any creek, brook, stream, river, lake, pond, spring, lagoon or any other natural body of water, and includes all the water in it, and also the bed and the shore (whether there is actually any water in it or not). It also includes all ground water.

2) "Water resource" means all fresh and salt (marine) waters, including all surface water, groundwater and coastal water. Legislative Authority: Environment Act, Statutes of Nova Scotia, 1994-95, Chapter 1,
http://www.gov.ns.ca/legi/legc/

Habitat Management Division of DFO has developed a restoration template that is to be attached to the "Watercourse Alteration" application. This template provides DFO, HMD with additional information they need when reviewing the restoration project.

DFO Habitat Management Application template.