Question Period Note: Highway 101 Twinning / Avon River Tidal Gate, Nova Scotia

• Protecting the environment and biodiversity is a priority for our government, and we remain committed to ensuring adequate passage for fish at the Avon River tidal gate.
• My department is currently reviewing, under the Fisheries Act, an application from the Government of Nova Scotia for replacing the existing tidal gate. The project will be evaluated for fish passage for all fish species likely to use the Avon River.
• My department is committed to working with the province, Indigenous groups and other stakeholders to find solutions that protect fish and fish habitat in the Avon River.

Ministerial Order
• To address concerns about fish passage, my department has issued a Ministerial Order to the province about how they operate the tidal gates.
• The Order will be reviewed every two weeks and adjusted in the event that additional information demonstrates potential impacts to public or personal property.

Existing structure (Ministerial Order):
• Given the expiration of the current Ministerial Order (MO) on June 15, 2021, on June 1, 2021, it was decided that the department would continue with issuance of the MOs every two weeks with the same wording as currently used until at such time issues considered relevant by the Minister would require a change in the MO or the new structure is put into operation.
• As with any structure regulated under the Fisheries Act, the responsibility to communicate changes in operations that may impact stakeholders rests with the owner or operator of the structure.
• It has been reported that the implementation of the MO has created disturbances along the river, such as causing fish and turtle kills upstream to the structure. Fisheries and Oceans Canada (DFO) has received a few reports of very minor fish mortality events upstream. However, given the increased fish passage and large number of fish reported in the system, mortality events were anticipated. Freshwater turtles fall under provincial responsibility, and the Department has not received any reports concerning turtle mortality events.
• On March 19, 2021, to ensure adequate fish passage during important periods, while balancing the need to consider public and private property in the area, DFO issued a Ministerial Order (MO) to the Nova Scotia Department of Agriculture (NSDA) for operation of the Avon River tidal gates.
• DFO made the Order for an initial two-week period ending on April 3, 2021, to allow the NSDA to collect additional information about the impacts of the Order on public and private property in the area. DFO will continue to renew the Order for two-week periods until at least mid-June 2021.
• The MO requires that the gates be left open during the falling tide which results in lower than normal water levels in Lake Pisiquid and allows at least 10 minutes of saltwater to enter above the tidal gates on the incoming tide before closing the gates to ensure flood control from tidal waters.
• Since the issuance of the Order, the Department has heard from stakeholders and the local Member of Parliament that the Order is impacting or will impact competitive paddling, agriculture operations, residential drinking water, emergency water for fire fighting, snow making operations and property use/value.
• In December 2020, a media release reiterated the Mi’kmaq’s concerns regarding the decision to no longer issue, or to postpone until Spring 2021, a revised Ministerial Order for the operation of the existing aboiteau. The Assembly of Nova Scotia Mi’kmaw Chiefs had expressed similar concerns in a November 18, 2020, media release.
• On November 16, 2020, the media reported that protesters were blocking traffic on Highway 101 to draw attention to the lack of water flow through the Avon River tidal gate, preventing fish from passing through. The protesters say the gates are only open for about 6 minutes at each tide, giving fish only about 12 minutes a day to pass through, which is not enough time. They are calling on Minister Jordan to take action to allow for proper fish passage, which they say would require the gates to be opened permanently.
• In May 2020, DFO issued a Ministerial Order to the NSDA to improve fish passage and undertake additional monitoring at the tidal gates during the spring migration. Operating a structure that is at its end of life, while attempting to provide fish passage and maintain adequate flood control, has presented various challenges.

New structure:
• Legislated timelines for review of the application are currently paused while the Department is waiting for information from the proponent.
• On November 5, 2020, Nova Scotia Department of Transportation and Infrastructure Renewal (NSTIR) submitted an application for a Fisheries Act authorization for installation of a new aboiteau and fish passage structure to replace the current tidal gate (this is referred to as the Phase 2 of the highway twinning project).
• DFO Maritimes Region is now reviewing the application for Phase 2, including an evaluation of effective fish passage for migratory species likely to use the Avon River, such as Atlantic Salmon, Gaspereau, and American Eel. DFO is also consulting with leading US experts (branch of NOAA) regarding safe, timely, and effective fish passage solutions.
• NSTIR is proposing the twinning and upgrading of the existing section of Highway 101 from Three Mile Plains to Falmouth. The work includes upgrading the existing Avon tidal gate structure (aboiteau) in partnership with the Nova Scotia Department of Agriculture. DFO issued an authorization for Phase 1 of the project (causeway construction in the Windsor saltmarsh of Avon River) in January 2020.

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