CA PDF Page 1 of 126 Energy East Project Part E: New Brunswick Volume 15: Biophysical Effects Assessment Section 6: Fish and Fish Habitat 6 FISH AND FISH HABITAT 6.1 Assessment Scope Fish and fish habitat is selected as a Valued Component (VC) because it is of economic and recreational importance to Canadians, and it plays a fundamental role in the functioning of natural ecosystems. Changes in the distribution or occurrence of fish or fish habitat may strongly affect ecosystem function and environmental cycles and the ability of other organisms, including humans, to use and benefit from this natural resource. The fish and fish habitat scope for the New Brunswick segment includes: • construction of watercourse crossings along 411 km of new pipeline • construction of five pump stations • construction of permanent access roads to pump stations • operation and maintenance of the pipeline, pump stations, and permanent access roads For a description of these project components, see Volume 14, Section 2. 6.1.1 Federal Regulatory Requirements 6.1.1.1 National Energy Board Act Effects on fish and fish habitat associated with the Project are subject to regulatory requirements under the National Energy Board Act (NEB Act). The assessment scope for fish and fish habitat associated with the Project is guided by the NEB’s Filing Manual, 2014-01 (NEB 2014), which provides guidance as to the type of information the NEB would typically need to make a decision pursuant to the National Energy Board Act (NEB Act) and the Canadian Environmental Assessment Act (CEAA 2012). For all requirements related to fish and fish habitat, see Table A-2 in the National Energy Board (NEB) Filing Manual, 2014-01 (NEB 2014). The filing requirements provide guidance to assess potential effects of the Project on: • an assessment of fish presence and existing background fish habitat conditions at each watercourse or water body crossed by new pipeline segments • an assessment of fish presence and existing background fish habitat conditions at each watercourse or water body within the Local Assessment Area (LAA) of a pipeline, permanent access road, or facility • an assessment of effects on fish and fish habitat from construction and operation, including construction equipment and vehicles • a description of mitigation measures to minimize effects on fish and fish habitat Energy East Pipeline Ltd. May 2016 6-1 CA PDF Page 2 of 126 Part E: New Brunswick Energy East Project Section 6: Fish and Fish Habitat Volume 15: Biophysical Effects Assessment 6.1.1.2 Fisheries Act Federal management of fisheries resources is the mandate of Fisheries and Oceans Canada (DFO); the regulatory agency that is responsible for implementing the requirements of the Fisheries Act. Modifications to fish and fish habitat are regulated by the requirements of the Fisheries Act, which “aims to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries” or fish that support such a fishery. The definitions of fish and fish habitat are established under the Fisheries Act: • “fish” includes (a) parts of fish, (b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and (c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals; • “fish habitat” means spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly to carry out their life processes. Commercial, recreational and Aboriginal (CRA) fisheries are referred to in the Fisheries Act, and involve the following: • Commercial fisheries include fish species harvested under license for the purpose of sale. • Recreational fisheries include fish species harvested for personal use or sport, as well as coarse and forage fish that support this fishery. • Aboriginal fisheries include fish species harvested by Aboriginal groups for subsistence, social or ceremonial purposes. Quality of fish habitat incorporates a variety of biophysical parameters, including substrate, cover, hydrology, channel morphology, and flow. Major water quality parameters that influence habitat suitability for fish include temperature, dissolved oxygen (DO), total suspended sediment, turbidity, and pH. Key sections of the Fisheries Act that apply to pipeline activities in fish habitat include: • Sections 20 to 21, which address obstructions, fish passage, and screening of water intakes • Section 35, which addresses serious harm to fish • Section 36, which addresses deposition of deleterious substances in water frequented by fish DFO’s Fisheries Protection Policy Statement states that “…proponents will be required to demonstrate that measures and standards have been fully applied to first avoid, then mitigate, and then finally, offset any residual serious harm to fish that are part of or support commercial, recreational or Aboriginal fisheries …” (DFO 2014). Avoidance measures are described as measures to relocate, redesign or time a project, or a component of a project, to prevent serious harm to fish. Mitigation measures are implemented during construction and operation of a project to reduce the spatial scale, duration, or intensity of serious harm to fish. Offsetting measures are implemented to counterbalance residual serious harm to fish after the application of avoidance and mitigation measures (DFO 2013a). 6-2 May 2016 Energy East Pipeline Ltd. CA PDF Page 3 of 126 Energy East Project Part E: New Brunswick Volume 15: Biophysical Effects Assessment Section 6: Fish and Fish Habitat 6.1.1.3 Species at Risk Act The status of fish species is assessed by the Committee on the Status of Endangered Wildlife Species in Canada (COSEWIC), which then recommends a designation for legal protection by being officially listed under the Species at Risk Act (SARA). One of the key considerations under SARA for protection of listed species at risk is protection of the species’ habitat. SARA is one part of a three-part Government of Canada strategy for the protection of species at risk, and applies to all extirpated, endangered or threatened fish species listed in Schedule 1 as being at risk and their critical habitat. The other two parts of this strategy include commitments under the Accord for the Protection of Species at Risk and activities under the Habitat Stewardship Program for Species at Risk. Under SARA, the protection of aquatic species at risk falls under the jurisdiction of DFO. For the Project, federal aquatic species at risk are considered to be species that are listed federally as endangered, threatened or extirpated on Schedule 1 of SARA.There are three main prohibitions in SARA relevant to all aquatic species at risk and their critical habitat: • Section 32, which prohibits killing harming, harassing, capturing or taking an individual of a species at risk • Section 33, which prohibits damage or destruction of residences of species at risk • Subsection 58(1), which prohibits destruction of critical habitat of species at risk0 6.1.1.4 Memorandum of Understanding between NEB and DFO While the implementation of the Fisheries Act and the protection of aquatic species at risk are the mandate and responsibility of DFO, under the recent Memorandum of Understanding between the National Energy Board (NEB) and DFO, the NEB will assess potential effects of the project on fish or fish habitat and aquatic species at risk (NEB 2013). If the NEB determines that a project could result in serious harm to fish or fish habitat, or adverse effects on species at risk, the NEB will notify DFO that a Fisheries Act authorization and SARA permit may be required. 6.1.2 New Brunswick Regulatory Requirements The Province of New Brunswick has the following legislation in place to manage and protect New Brunswick’s watercourses (New Brunswick Clean Water Act, New Brunswick Clean Environment Act), as well as aquatic species considered to be at risk (New Brunswick Species at Risk Act) and recreational fish species (New Brunswick Fish and Wildlife Act and The Maritime Provinces Fishery Regulation-a federal regulation under the Fisheries Act, which is applicable only to the New Brunswick segment of the Project). Energy East Pipeline Ltd. May 2016 6-3 CA PDF Page 4 of 126 Part E: New Brunswick Energy East Project Section 6: Fish and Fish Habitat Volume 15: Biophysical Effects Assessment New Brunswick Clean Water Act The water quality of watercourses is protected in New Brunswick under the Clean Water Act. Activities that could alter water quality of watercourses are regulated under the Watercourse and Wetland Alteration Regulation of the Clean Water Act. Additionally, under the Water Classification Regulation of the Clean Water Act, water quality standards are established for classified lakes and rivers in New Brunswick. Under the New Brunswick Clean Water Act (Chapter C-6.1, Section 1) a watercourse is defined as: …the full width and length, including the bed, banks, sides and shoreline, or any part, of a river, creek, stream, spring, brook, lake, pond, reservoir, canal, ditch or other natural or artificial channel open to the atmosphere, the primary function of which is the conveyance or containment of water whether the flow be continuous or not. New Brunswick Clean Water Act—Watercourse and Wetland Alteration Regulation Fish habitat is indirectly protected under the Watercourse and Wetland Alteration Regulation 90-80 (WAWA Regulation). Under the WAWA Regulation, permits are required for vegetation clearing, soil excavation, construction or landscaping activities within 30 m of a watercourse or wetland as well as works within watercourses and wetlands. The Watercourse and Wetland Alteration Technical Guidelines recommend in water works and works within 30 m of a watercourse occur during the summer low flow period from June 1 to September 30. Where the removal of a beaver dam is required, the beaver must be removed by a licensed Nuisance Wildlife Control Officer prior to the lowering of the dam in accordance with New Brunswick Department of Natural Resources Beaver Dam Removal Guidelines and the WAWA Regulation.