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Maintaining private ditches: What you should know about Canada’s Fisheries Act

The latest amendments to Canada’s Fisheries Act will add an extra step for Canadian drainage contractors who are tasked with maintaining or cleaning private ditches.

Canada’s Fisheries Act was recently amended and became law on June 21, 2019.

Chris Biberhofer presented on what contractors should know about the changes to the Fisheries Act at the Land Improvement Contractors of Ontario (LICO) conference held in London, Ont. from Jan. 21 to 23, 2020. Biberhofer is a biologist with the Fish and Fish Habitat Protection Program of Fisheries and Oceans Canada (frequently referred to as Department of Fisheries and Oceans, or DFO).

The Fish and Fish Habitat Protection Program helps to conserve and protect fisheries and aquatic ecosystems, and helps limit projects that would damage or cause harm to fish habitats.

Wording changes mostly

Biberhofer explains that most of the amendments are just wording changes within the Act. “The primary thing worth noting is that some of the language changed from ‘serious harm’ back to ‘HAD,’ which is the ‘harmful alteration, disruption or destruction of fish habitat,'” Bibehofer says.

While it may seem like an uneventful change for contractors, the wording change means something more from a legal aspect. “The word ‘serious’ didn’t have a legal meaning on what was considered ‘serious,’ so the change back to HAD brought back some of that old case law that was previously there [when HAD was the terminology used],” Biberhofer explains.

Not all private ditches

Not all private ditches fall under the supervision of the Fisheries Act. Only if the ditch connects to a fish bearing water course then is it considered to be under the jurisdiction of Fisheries and Oceans Canada.

“So even if it’s mostly dry 90 per cent of the time, if it does connect to a fish bearing water course, it is a fish habitat or provides indirect fish habitat,” Biberhofer says.

If the ditch is connected to a fish habitat then it means that there are extra steps, such as sending a review of the project, that need to be followed before any work is done.

“If it connects to something with fish, then we want to see a review of it,” Biberhofer states.

“If it connects to something with fish, then we want to see a review of it.”

Such a broad definition might prompt concerns that any body of water could be considered a fish habitat if enough strings are threaded together to tie it back to a fish bearing water course. But, broad doesn’t necessarily mean bad.

“I think there’s been a lot of changes to the landscape over the years, some areas that may not have had permanent flow now do, and some areas that were natural water courses now have been altered to function more like private ditches,” Biberhofer says. “But ultimately if it does connect to something like a fish spring water course, it would be considered direct or indirect fish habitat.”

“That’s not to say that no projects can go ahead, but it’s now something we want to take a quick review of.”

“But that’s not to say that no projects can go ahead or anything like that, it’s just something we want to take a quick review of,” Biberhofer clarifies. “Anything like standard erosion control measures, which is standard good practice, is generally all that would be needed [in a project like that]. If there’s the odd instance with a species at risk involved that’s where you want some extra mitigation measures.”

Do you need a review in the first place?

The Projects Near Water website provides contextual information as well as the review process for any contractors looking to complete a project near water. It also provides contact information for each province where contractors can go to for more situation specific information. This website is the go-to source for dealing with the rules of the Fisheries Act.

The first step is figuring out if you have to take any steps in the first place. The Fisheries Act only applies to ditches that connect to fish, so if your project does not fit this description then you can go ahead with the work.

For example, agricultural drains and drainage ditches are considered under “artificial waterbodies that aren’t connected to a waterbody that contains fish at any time during any given year” and do not need to undergo a review process.

The Fisheries Act will start to come into play when it’s private ditches on the side of a field or closer to a body of water that have fish. Check if your project needs a review online.

Submitting a project review

Once you’ve determined if the private ditch falls under the Fisheries Act’s need for review, start gathering information to submit a project review.

Biberhofer says before you start any work, go to the project site in advance to inspect and take some pictures of the area. Once you know the project location (where the ditch is located), have photos of the surrounding area, and know what kind of project you will be undertaking, you fill out project review form.

Biberhofer says the more information the better, but as long as the photos show the fish habitat they will work.

“Photos that show the fish habitat, so bank vegetation, substrate within the ditch, etc. [will work.] If you have old photos, that show in the past four years the ditch was dry, those are also helpful as well,” Biberhofer says. “So the photos don’t necessarily all have to be current. And then also photos at a time where there is vegetation on the bank.”

Biberhofer shared some example of photos submitted in his LICO presentation that weren’t helpful, such as snow covered ground or photos at an angle where the water wasn’t visible. “So if it’s frozen, that’s not the best time for a photo, it’s not particularly helpful. Or nighttime, you want to be able to see the fish in the fish habitat.”

Once a form is filled and supporting documents are provided, submit the form to your regional DFO office or email it directly to your region-specific triage inbox.

What happens next?

There is no cost for review and most projects are reviewed within five to seven business days.

“They’re fairly quick. If it does need to go for a further review, sometimes it takes a little longer. But if it’s a very minor cleanup with all the proper mitigation, anticipate that it will take five to seven, maybe 10 days for a triage review,” Biberhofer says.

Sometimes a response is given that asks for additional mitigation measures or to avoid certain timing windows, but if the DFO is comfortable with the project as described they will give their go ahead.

When in doubt reach out. “That’s the best practice, you can get a quick response ideally and it’s better to check and we give you a response rather than having any potential concerns arise further down the line,” Biberhofer says.

For contractors who may see this process as an unnecessary delay, Biberhofer says it’s fairly easier when compared to the alternative.

“It’s better to cover your bases,” Biberhofer starts. “In many cases, we likely wouldn’t be concerned [with the project] and that might be nine times out of 10.

“But there will be that one instance potentially where we do have concerns about the work that is happening and it’s still better to cover your bases because it can be more costly down the line.

“There’s a whole process for non-compliance with the Fisheries Act and if some harm does happen to species at risk. If you go into more of a legal process, that not something anyone really wants to do if it can be avoided. So the main plan is to avoid and mitigate and when in doubt reach out. Just send us a quick email of what you plan to do,” Biberhofer says.