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Guidelines for the Use of Explosives In or Near Canadian Fisheries Waters

Guidelines, and Application and Review Processes

The following sections have been prepared to guide proponents proposing works or undertakings that involve the use of confined or unconfined explosives in or near Canadian fisheries waters, and to which the Fisheries Act, Sections 32 and 35 in particular, may apply. Confined explosives are those that would be used within a substrate, including ice, while unconfined explosives are those that would be used in open water, or not within a substrate.

Note that the information and guidance provided in these sections pertains to the conservation and protection of fish and fish habitat in the context of the Fisheries Act, and to the CEAA requirements that may result. There is no intent to relieve the proponent of responsibilities under any other federal, provincial or municipal legislation. Proponents are encouraged to contact other appropriate regulatory agencies to ensure that the proposed work or undertaking is carried out according to their requirements.

Guidelines

This section provides guidelines on methods and practices which, if incorporated into a project proposal, are intended to prevent or avoid the destruction of fish, or any potentially harmful effects to fish habitat that could result from the use of explosives. Implementation of these measures, for this purpose, is at the discretion of the proponent. Use of these guidelines should not be taken to imply approval of the proposed project in accordance with the Fisheries Act. Note that should the proponent proceed with the project and the use of explosives results in the destruction of fish and/or the HADD of fish habitat as a result of a change in plans, or failure to implement the measures, contravention of Section 32 and/or Subsection 35(1) of the Fisheries Act could occur.

1. Proponents considering the use of explosives are encouraged to consult the appropriate DFO Regional/Area authorities (Appendix I) as early as possible in their planning process to identify possible alternatives to the use of explosives, the biological resources and their habitats at risk, and/or effective mitigation measures.
   
   
2. Where provincial or territorial resource management agencies, or aboriginal resource management boards undertake the administration of fisheries, the proponent is encouraged to consult with the relevant authorities.
   
   
3. The use of confined or, in particular, unconfined explosives in or near Canadian fisheries waters is discouraged, and proponents are encouraged to utilize other potentially less destructive methods wherever possible.
   
   
4. No use of ammonium nitrate-fuel oil mixtures occurs in or near water due to the production of toxic by-products (ammonia).
   
   Note:
   
   • The deposit of deleterious substances into waters frequented by fish is prohibited under Section 36(3) of the Fisheries Act, unless otherwise permitted by regulation. There is no regulation pursuant to the Fisheries Act that permits the deposit of by-products resulting from the use of ammonium nitrate-fuel oil mixtures.
     
     
5. After loading a charge in a hole, the hole is to be back-filled (stemmed) with angular gravel to the level of the substrate/water interface or the hole collapsed to confine the force of the explosion to the formation being fractured. The angular gravel is to have a particle size of approximately 1/12th the diameter of the borehole.
   
   
6. All "shock-tubes" and detonation wires are to be recovered and removed after each blast.
   
   
7. No explosive is to be knowingly detonated within 500 m of any marine mammal (or no visual contact from an observer using 7x35-power binocular).
   
   Note:
   
   • Upon review of a proposal, the DFO Regional/Area authority may impose a greater avoidance distance, depending on the size of the charge or other project specific or fishery resource conditions.
     
     
8. No explosive is to be detonated in or near fish habitat that produces, or is likely to produce, an instantaneous pressure change (i.e., overpressure) greater than 100 kPa (14.5 psi) in the swimbladder of a fish.
   
   Notes:
   
   
   • For confined explosives, setback distances from the land-water interface (e.g., the shoreline), or burial depths from fish habitat (e.g., from under the riverbed) that will ensure that explosive charges meet the 100 kPa overpressure guideline are shown in Table 1. Equations to derive these relationships have been adapted from Nicholls et al. (1971) and Anon (1980). The equations are described in Appendix II, and should be used for weights of explosives not covered in Table 1. Sample calculations and examples are illustrated in Appendix III.
     
     
   • If a confined explosive is to be detonated close to the substrate-water interface (such as in trenching or demolition), the set-back distance closely approximates the theoretical lethal range within which 50% of the fish may be killed or injured. Consequently, the 100 kPa guideline is not likely to be met in those situations where, because of the design constraints of the project, it is also likely not possible or practical to 'adjust' the setback distance as a means to meet the 100 kPa guideline. For example, preparation of a trench for a pipeline crossing typically requires no more than a below grade burial depth of about 2m. Therefore, the weight of explosive charge per delay will have to be adjusted in an effort to meet the 100 kPa guideline. A sample calculation to illustrate a trenching example is given in Appendix III.
     
     
   • For unconfined explosives, proponents are encouraged to contact the appropriate DFO Regional/Area authorities (Appendix I) for further guidance.
     
     
9. No explosive is to be detonated that produces, or is likely to produce, a peak particle velocity greater than 13 mm•s^-1 in a spawning bed during the period of egg incubation.
   
   Note:
   
   
   • For confined explosives, setback distances or burial depths from spawning beds that will ensure that explosive charges meet the 13 mm•s^-1 guideline criteria are shown in Table 2. Equations to derive these relationships have been adapted from Nicholls et al. (1971) and Anon (1980) and are described in Appendix II. Sample calculations and examples are illustrated in Appendix  III.
     
     
   • For unconfined explosives, proponents are encouraged to contact the appropriate DFO Regional/Area authorities (Appendix I) for further guidance.

 

Application And Review Processes

Proponents planning to use an explosive that is likely to destroy fish and/or cause a HADD of fish habitat are subject to certain legal obligations under the Fisheries Act, as identified in the preceding 'Applicable Legislation and Policy' section. This section discusses these obligations with respect to the proposed use of explosives, and suggests to proponents how to fulfil them.

Proponents should contact the DFO Regional/Area authorities (Appendix I) as early as possible in their planning process. The purpose is to find out whether the proposed use of explosives is likely to affect a Canadian fisheries water and whether its use is likely to destroy fish and/or cause a HADD of fish habitat. Depending on the outcome, DFO may also discuss potential issues, specific information requirements, or the next steps and possible outcomes in a further review of the proposal. For example, as summarized in the subsequent 'Review and Decision-making Process' section, possible next steps could include a request for further information, or a recommendation that the proponent seek an authorization pursuant to Section 32 and/or Subsection 35(2). Possible outcomes may include the provision of written advice, the issuance of (an) authorization(s) subject to completion of a CEAA review, or, refusal to issue (an) authorization(s).

Proponents should contact DFO before irrevocable commitments (such as contracts for equipment/services) are made, in order to avoid any unnecessary delays in the application and review process. Note that DFO may become aware of your proposed project through its participation in co-operative arrangements with other governments, agencies, boards, etc.

The following 'Application Procedures' section provides information to assist the proponent in deciding if it should seek Authorization to destroy fish by means other than fishing, and/or Authorization to harmfully alter, disrupt or destroy fish habitat, through the use of explosives and, if so, provides information on procedures for filing, etc.

Note that application for Authorization under Section 32 and/or Subsection 35(2) is voluntary. Proponents are not prohibited from going ahead with their use of explosives without Authorization. But, if as a result of the use of explosives, fish are destroyed and/or there is a HADD of fish habitat, contravention of Section 32 and/or Subsection 35(1) of the Fisheries Act could occur and the proponent is liable to prosecution.

Application Procedures

1. Proponents unable to meet the overpressure or peak particle velocity guideline values identified, respectively, in measures 8 or 9 of the preceding 'Guidelines' section, should complete and submit an application for Authorization under Section 32 of the Fisheries Act, to destroy fish by means other than fishing. The recommended application form is shown in Appendix IV. However, the proponent should contact the appropriate DFO Regional/Area authority (Appendix I) to verify that this is the appropriate application form to use and/or to identify information requirements.
   
   
2. Proponents who wish to file for Authorization under Subsection 35(2) of the Fisheries Act should complete and submit a separate application in accordance with the form prescribed pursuant to Subsection 58(1) of the Fishery (General) Regulations (Appendix V). Assistance on filing the application form, and related procedures, may be obtained by contacting the appropriate DFO Regional/Area authorities (Appendix I).
   
   
3. Proponents seeking Authorization under both Section 32 and Subsection 35(2) should complete and submit both Section 32 (Appendix IV) and Subsection 35(2) (Appendix V) applications. However, to minimize duplication, the proponent may choose to cross-reference those sections that are the same in each application form, and is expected to only submit one set of the documents requested in the forms, unless otherwise requested by the DFO Regional/Area authority. Contact the appropriate DFO Regional/Area authorities (Appendix I) for further information and assistance.
   
   
4. In seeking Authorization, the proponent will be expected to provide the information requested in the application forms. Doing so will expedite the review process.
   
   In general, the proponent is expected to provide all plans, specifications, studies, procedures, samples or other information required to permit an assessment of the potential impact of the proposed use of explosives on fish and fish habitat, and the mitigation and/or compensation measures proposed to alleviate impacts and/or to compensate for any loss of productive capacity of habitat to produce fish. Typically, the fish and/or fish habitat information requirements include, but may not necessarily be limited to the items summarized below:

1. A description of the project and the expected effects resulting from the use of explosives on the fisheries resources (including marine mammals) and/or fish habitat, including:
   
   
   1. A description of fish and marine mammal species and their habitats likely to be affected by the detonation;
   2. A description of whether the fish, marine mammals and their habitats contribute, or have the potential to contribute, directly or indirectly, to a fishery - subsistence, commercial or recreational;
   3. The timing of any seasonal migration of fish and marine mammals;
   4. The theoretical lethal range (i.e., the range, or distance, over which the overpressure exceeds 100 kPa) of the explosives to be used (from equations provided in Appendix II);
   5. An assessment of potential impacts arising from the proposed use of explosives and a description of proposed mitigation and/or compensation measures; and
   6. Other matters, such as the proposed contingency plan and monitoring and follow-up program.

2. The proponent's mitigation plan should include discussion of the following measures that are particularly relevant to alleviating the potential impacts of explosives:
   
   
   1. The work or undertaking should be undertaken at the time of least biological activity or biological sensitivity. Proponents should consult with DFO Regional/Area authorities to determine the appropriate timing;
   2. If multiple charges are required, time-delay detonation initiators (blasting caps) should be used to reduce the overall detonation to a series of discrete explosions. Time delays for discrete explosions should be greater than 25 ms; and,
   3. If possible, large charges should be subdivided into a series of smaller discrete detonations or explosions using time-delay detonation initiators (a procedure known as decking) to reduce the overall detonation to a series of smaller discrete detonations or explosions.
      
      In addition to these measures, the proponent should also consider additional mitigation measures including, but not limited to the following:
      
      
   4. Deployment of bubble curtains/air curtains to disrupt the shock wave;
   5. Deployment of noise generating devices, such as an air compressor discharge line, to scare fish away from the site; or,
   6. Removal or exclusion of fish from the work area before the blast occurs.
      
      

5. Proponents should be aware that subsequent to filing the application, DFO may request additional information concerning fish and fish habitat, the mitigation and/or compensation plans, the contingency and monitoring and follow-up programs, and other matters as required to complete the Fisheries Act review. If the appropriate information is not already available, it is the proponent's responsibility to provide it and, also, to assure DFO that the proposed mitigation and/or compensation measures will be effective. Should it be necessary to conduct an environmental assessment of the project pursuant to the CEAA, then additional information will be required in order to meet the requirements of the CEAA.
   
   
6. The Department of Fisheries and Oceans will undertake to: respond to requests for review, or to referrals, of project proposals or activities; issue Authorizations or provide advice; and/or complete environmental assessments in a manner consistent with Departmental service standards. Generally, DFO will respond to requests for review or to referrals within 30 working days of notification. Timeframes required for the issuance of Authorizations or advice will be discussed with proponents. Proponents should be aware that the length of time required to complete a review can vary greatly, often depending on the type and complexity of proposed project, the fish and fish habitat issues involved, and whether or not an environmental assessment under the CEAA is required. Once again, proponents are encouraged to contact the appropriate DFO Regional/Area authorities (Appendix I) to discuss these issues.
   
   
7. If an unforeseen need to use explosives arises, Departmental service standards may be waived and a review completed as expeditiously as possible so as not to unduly delay a project. Further, Departmental service standards are waived in the event of an emergency where lives and/or property are threatened. In such cases, the amount of information required may be reduced due to the urgency of the situation. Any verbal request for an emergency Authorization will be accepted only on the condition that it is followed by a written confirmation of the project details.
   
   
8. If applicable, proponents may be required by the Department of Fisheries and Oceans, Canadian Coast Guard, to issue a "Notice to Mariners" and/or a "Notice to Fishers". The appropriate DFO Area/Regional authorities (Appendix I) are prepared to assist the proponent with contacting the Canadian Coast Guard.
   
   
9. Resource management agencies of other governments, departments, or boards that have been established under some aboriginal land claim settlements, may have aquatic resource review requirements and service standards that are different than those described in this document. Proponents should contact those agencies to ensure compliance with any requirements they may have.
   
   

Review and Decision-making Process

This section summarizes the approach taken by the Department of Fisheries and Oceans in the review of referrals and of applications for Authorization. Included is a description of the key decisions possible from a review, and the criteria used in making decisions. There is also a brief summary of the linkage between Section 32 and/or Subsection 35(2) Authorizations and the responsibilities of the Department of Fisheries and Oceans to undertake environmental assessments pursuant to the Canadian Environmental Assessment Act (CEAA).

Fisheries Act

DFO will review the proponent's application in accordance with the Fisheries Act and its supporting policy framework, including this document. Upon receipt of information, notice, a referral, or application for Authorization concerning works or undertakings where the use of explosives is proposed, DFO will normally take the following steps in its review of the proposal:

1. Determine the adequacy of the information provided by the proponent.
   
   
2. Using the information provided, assess the extent of risk or potential damage to fish and marine mammals and/or fish habitat and the acceptability of this level of damage in context with the level of protection required.
   
   
3. Determine the probable success of proposed mitigation and/or compensation measures and, as appropriate the acceptability of any residual impacts.
   
   
4. Where relevant, consult with the appropriate provincial or territorial resource management agencies, and/or aboriginal resource management boards.
   
   
5. Note that prior to finalizing its review of the proposal DFO may, among other matters, advise the proponent of the need for more information, re-assess a revised project proposal, suggest that the proponent seek authorization, etc. The review of a proposal is often an iterative process depending on a number of factors, such as the type of referral received by DFO, its completeness, its potential impacts on fish and/or fish habitat and the potential to mitigate and/or compensate for such impacts. Proponents should discuss this and related aspects of the review process with the relevant DFO/Regional area authority (Appendix I).
   
   
6. After examination of the proposal, DFO will make a decision regarding the proponent's application.
   
   

• With respect to Section 32, DFO will either,
  
  ⇒ upon determining that implementation of mitigation measures by the proponent is expected to prevent or avoid the destruction of fish, advise the proponent by letter that if such measures are incorporated into the project, Section 32 is not expected to be contravened. A letter of advice should not be taken to imply approval of the project pursuant to the habitat provisions of the Fisheries Act, or any other legislation. Note, if the destruction of fish occurs as a result of a change in the plans for the proposed project, or failure to implement the measures identified in the letter of advice, contravention of Section 32 of the Fisheries Act could occur.
  
  OR
  
  ⇒ upon determining that even with the implementation of mitigation measures the destruction of fish is still expected to occur and, because this mortality is acceptable within the context of the fisheries resource, issue a Section 32 Authorization using a letter format.
  
  OR
  
  ⇒ upon determining that even with the implementation of mitigation measures the destruction of fish is still expected to occur but, because this mortality is not acceptable within the context of the fisheries resource, reject the proposal, and notify the proponent that DFO will not issue a Section 32 Authorization and that a contravention of the Fisheries Act could occur should the proponent still choose to proceed as proposed.
  
  
• With respect to Section 35, DFO will either,
  
  ⇒ upon determining that implementation of mitigation measures by the proponent is expected to prevent or avoid a HADD of fish habitat, advise the proponent by letter that if such measures are incorporated into the project, Subsection 35(1) is not expected to be contravened. A letter of advice should not be taken to imply approval of the project pursuant to the habitat provisions of the Fisheries Act, or any other legislation. Note, if a HADD of fish habitat occurs as a result of a change in the plans for the proposed project, or failure to implement the measures identified in the letter of advice, contravention of Subsection 35(1) of the Fisheries Act could occur.
  
  OR
  
  ⇒ upon determining that even with the implementation of mitigation measures a HADD of fish habitat is still expected to occur and, because the proposed compensation for the unavoidable net loss of productive capacity of fish habitat is acceptable to DFO, issue a Subsection 35(2) authorization using the form provided in Schedule VII of Subsection 58(2) of the Fishery (General) Regulations.
  
  OR
  
  ⇒ upon determining that even with the implementation of mitigation measures a HADD of fish habitat is still expected to occur but, because the proposed compensation for the unavoidable net loss of fish habitat productive capacity is not acceptable, reject the proposal, and notify the proponent that DFO will not issue a Subsection 35(2) Authorization and that a violation of the Fisheries Act could occur should the proponent still choose to proceed as proposed.

Notes:

• The Department of Fisheries and Oceans, in arriving at one of the above noted determinations, will also consider the following criteria:

• Whether the use of explosives is the only technically feasible means by which to attain the desired objective; and
  
  
• Whether the use of explosives is required to alleviate an emergency situation threatening human safety and/or property.
  

• Section 32 and/or Subsection 35(2) authorizations come with conditions attached, which among others may include:

• The proponent may be required to develop, undertake and report on a monitoring program at its expense, typically, to monitor compliance and evaluate effectiveness of the mitigation and/or compensation measures.
  
  
• If, during the course of the works or undertakings, the adverse effects of the explosives were significantly greater than anticipated, the proponent may be required to immediately cease all further use of explosives, pending review of the situation with Department of Fisheries and Oceans personnel.
  
  
• Additional, site-specific terms and conditions as may be required in order to satisfy fishery resource and/or fish habitat protection requirements. For example, the conditions may be more stringent than the measures identified in the preceding 'Guidelines' section.
  

Canadian Environmental Assessment Act

Section 32 and Subsection 35(2) are included in the Law List Regulation of the Canadian Environmental Assessment Act (CEAA). Consequently, the Department of Fisheries and Oceans as the Responsible Authority must conduct an environmental assessment of the relevant proposed works or undertakings before an Authorization can be issued. If the result of the environmental assessment is that the work or undertaking will, after taking into account the appropriate measures, not likely result in significant impact that cannot be justified, then authorization(s) will normally be issued pursuant to Section 32 and/or Subsection 35(2) of the Fisheries Act. Procedures for coordinating the CEAA review with provincial and aboriginal government review processes vary. Proponents are strongly advised to contact the DFO Regional/Area authorities (Appendix I) to obtain additional information on environmental assessment procedures and requirements.