Ontario’s Ministry of Transportation has plead guilty to two charges under the old federal Fisheries Act, and has agreed to pay a $250,000 penalty. The charges were laid by Fisheries and Oceans Canada (DFO), and relate to sediment released from a Highway 11 construction project near Burks Falls, Ontario, March 30 to April 15, 2011. They read as follows:
- Did deposit or permit the deposit of a deleterious substance in water frequented by fish or in any place under any condition where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water, contrary to section 36(3) of the Fisheries Act, thereby committing an offence under section 40(2) of that Act; and
- Did unlawfully carry out a work or undertaking that resulted in the harmful alteration disruption or destruction of fish habitat contrary to section 35(1) of the Fisheries Act, thereby committing an offence under section 40(1) of that Act.
The Ontario Ministry of Transportation (MTO) was the owner, designer and financier of the highway construction project.
Stirling Creek is Fish Habitat
For most of the 11 kilometres of highway that were constructed, a stream known as Stirling Creek runs nearby. Stirling Creek is a clear, cold to cool water stream and is a tributary to the Magnetewan River. Tributaries to Stirling Creek run through the contract area, several of which MTO identified as fish habitat prior to construction.
Stirling Creek is fish habitat and anglers have targeted brook trout within its waters.
Sediment Spills Cause Adverse Effects
During construction of the highway, there were a number of spills of sediment from the work areas into Stirling Creek and its tributaries. This sediment adversely affected fish habitat, and deposited a delta of sediment into Stirling Creek. Some of these sediment flows were reported, as spills, to the Ontario Ministry of the Environment Spills Action Centre.
Samples confirmed that some of these flows contained very high levels of suspended solids and turbidity, which are harmful to fish and to fish habitat. Sediment is a substance deleterious to fish.
In February 2012, Jennifer Predie, the former DFO Senior Fish Habitat Biologist in the Parry Sound District, reported that Stirling Creek is water frequented by fish, particularly by brook trout. She concluded that sediment leaving the construction site had been deposited into Stirling Creek and its tributary, causing a harmful alteration, disruption or destruction of fish habitat contrary to s. 35 (1) of the Fisheries Act.
Nearby residents report that fishing was poor after construction began.
10% of the penalty will be paid as a fine; the other 90% will go to the Environmental Damages Fund.
It is unusual for a highway owner/designer to accept liability for erosion during construction.