Protecting Environmental Flows for Fish Habitat
Richard Farthing-Nichol | October 2020
Fish populations are in trouble across the country. Less than a third of Canada’s marine stocks can confidently be considered healthy, while habitat loss and fragmentation is a significant problem in most major watersheds. As climate change intensifies and existing water resources are strained by increasing demand, changes are needed to better protect fish and fish habitat.
Stronger legislation is an important part of reversing these trends. Amendments to the federal Fisheries Act in 2019 introduced a number of provisions that can be leveraged to enhance protections for fish and fish habitat. One of the most important changes, found in section 34.3(7), enables the fisheries minister to make regulations “respecting the flow of water that needs to be maintained for the passage of fish and the protection of fish or fish habitat.” Ensuring an adequate “flow of water” for fish, commonly referred to as environmental flows, is a key part of a holistic, whole-of-ecosystem approach to fisheries management.
Environmental flows are critical to fish and all aquatic life, widely recognized by scientists as the ‘master variable’ for ensuring the health of freshwater ecosystems. The most widely accepted definition of environmental flows puts their importance into clear relief:
“Environmental flows describe the quantity, timing, and quality of freshwater flows and levels necessary to sustain aquatic ecosystems which, in turn, support human cultures, economies, sustainable livelihoods, and well-being.”
Flows are a fundamental part of fish habitat. This seems self-evident – fish need water – yet protection of fish habitat has historically focused on areas of sand, rock, gravel or aquatic vegetation used by fish for spawning and feeding grounds, not on the quality and amount of water available.
Introducing new regulations under the Fisheries Act could help fill this gap and address longstanding concerns and recommendations of the scientific community. A 2013 report by the Department of Fisheries and Oceans (DFO) Canadian Science Advisory Secretariat identifies the lack of federal guidelines for determining environmental flows in Canada as producing “a situation where fisheries resources, fish habitat and the supporting freshwater ecosystems may not be consistently protected across Canada.” This conclusion has been widely supported across the water science and policy communities.
The regulation-making provision in section 34.3(7) of the Fisheries Act is an opportunity to strengthen and clarify the federal role in ensuring environmental flows. Different levels of government are responsible for different aspects of water management. This is not the problem – the problem is that, historically, there has not been enough consideration of how these different management functions collectively affect environment flows. Federal regulations will achieve tangible outcomes in watersheds across the country by ensuring that protections for fish and fish habitat no longer fall through the cracks of shared water management systems.
The development of environmental flow regulations should be led by DFO and informed by collaboration with different levels of government and relevant stakeholders. While this collaborative process would determine the detailed content of the regulations, there are a few key considerations that should be considered as regulations are developed.
First, environmental flow standards should be harmonized across different levels of governments as much as possible. Jurisdiction over the water flows that are central to the protection of fish and fish habitat is shared between different levels of government, with provincial and territorial governments largely responsible for regulating water use and withdrawals. Indigenous governments, meanwhile, are increasingly assuming a larger role in decision making over water in their territories. Each level of government has a role to play, and harmonization across different levels of government is important to ensure consistent protections.
Second, connections between environmental flow regulations under the Fisheries Act and other aspects of fisheries and water management are important. Environmental flow regulations should align with and support regional and watershed-based planning processes. The regulations can also contribute to decision making under other sections of the Fisheries Act. For instance, under section 34.1 there are a number of factors that the Minister must consider when authorizing a project that may impact fish habitat, including the cumulative effects of the project. Environmental flow regulations would contribute to assessing and addressing cumulative effects.
Third, a new Canada Water Agency could play a key role in helping implement environmental flow regulations under the Fisheries Act. The Agency, which the federal government has committed to establishing, could help bring together different levels of government and ensure harmonization between various flow regulations across the country. This is the exact type of multijurisdictional policy issue that the Agency will be designed to address.
DFO should move expeditiously to develop environmental flow regulations under section 34.3(7) of the Fisheries Act. These efforts should be undertaken in close collaboration with Indigenous, provincial, and territorial governments. They should also be guided by the knowledge and expertise of the water science and policy communities. The established, extensive body of knowledge on environmental flows provides a good starting point, but ongoing engagement is needed to ensure the regulations are done right.