4. Wetland Stewardship
in BC

Proposals for Reform of Wetland Policy

Unlike other jurisdictions, such as the federal government and the provinces of Ontario and Alberta, BC has no official written policy on wetlands protection.

Wetlands in BC have little statutory legal protection. The province has an informal, unpublished policy on wetlands, and only the federal Fisheries Act contains an explicit “no net loss of wetland functions” policy for wetlands under federal fisheries jurisdiction.³⁹

A number of changes to law and policy are required to give wetlands a level of protection similar to other ecologically valuable areas.

Wetland Policy

First, a comprehensive wetland policy is required in BC. A written policy statement, confirming the government’s commitment to protect wetlands, and containing policy goals, would fulfil these key functions:

• require land use decision makers to give priority to wetland preservation;
• raise public awareness of the ecological value of wetlands, both within and outside government; and,
• authorize programs and policies designed to enhance and restore wetlands.

When developing a wetland policy, BC has the advantage of learning from other jurisdictions, which have had more experience with wetland protection regulation. It can look at the experience DFO has had, for example, when formulating the provincial goals. A common goal is “no net loss” of wetlands. There are problems with this policy goal. Both Washington State and the Canadian federal government have documented continuing losses of wetlands when the “no net loss” goal has been in effect.⁴⁰

For this reason, the policy should be based on the goals “no loss of wetlands” and “a net gain in the productive capacity of wetlands.” These goals will help to address the cumulative impact of many small wetland losses.

A written policy would signal the importance the government attaches to wetlands. However, a policy is not enforceable in a court, and decision makers are not legally obligated to respect a policy. Therefore, legal reforms are also required to adequately protect wetlands. Some of these changes which should be made to provincial laws in BC are addressed below.

Fish Protection Act

The province has pledged to introduce a new law to protect fish habitat under provincial jurisdiction. This law would amend a number of existing statutes, including the Water Act, Wildlife Act, and Municipal Act. While all the proposed changes are steps in the right direction, they do not go far enough. The Fish Protection Act should also provide a statutory basis for the overriding wetland policy goal of “no loss of wetlands.” This could be accomplished by requiring this goal to be given priority in:

• land use decisions involving wetlands on Crown land under the Land Act;
• municipal land use decisions under the Municipal Act including protection of environmentally sensitive areas, zoning and subdivision procedures, preparation of and amendment to Official Community Plans;
• environmental assessment procedures involving wetlands under the provincial Environmental Assessment Act; and,
• water licensing and approval decisions under the Water Act.

Water Act

The Water Act is in need of serious revision. An improved Water Act could be an important tool for wetlands protection. In addition to providing a statutory basis for the “no loss of wetlands” goal described above, three other key proposed amendments are discussed below: increasing protection for instream flows; broadening the definition of stream to include all types of wetlands; and, extending the right of appeal of decisions made under the Act to a broader group of people.

The current Water Act sets up a system of water rights which are acquired through the issuance of licences. The rights are allocated on a first come, first served, basis. So, a licence obtained before another licence of a later date will prevail. The law does not adequately deal with the need to maintain instream flows for conservation purposes, as its primary purpose is to divide up rights to water between residential, agricultural and industrial license holders. The Act should be amended to require managers to give express consideration to the amount of water that must be left in a stream or wetland in order to maintain its ecological health.

The Act regulates activities “in and around a stream” but the definition of stream is not broad enough to encompass all types of wetland, which may not have obvious flows. Broadening the definition of stream to include all wetlands would increase the regulatory protection available for wetlands.⁴¹

The appeal rights in the Water Act are more restrictive than other more modern provincial environmental laws. The Water Act should be amended to more closely resemble other environmental statutes which explicitly state that “any affected person” (which would include environmental groups and concerned citizens) can appeal a decision.

Forest Practices Code

The current Riparian Management Area setbacks, in which logging is prohibited or restricted, apply only to areas that are under the jurisdiction of the Forest Practices Code. These setbacks also may be varied at the discretion of Ministry of Forests employees. Requiring the setbacks to be applied in all cases is a preferable approach. Applying the Code to private forest land would also increase legal protection for wetlands found on those lands.

Provincial Riparian Setbacks

Wetland setbacks similar to those in the Forest Practices Code should be required for all wetlands in BC. Crucial wetland and other riparian habitat should be protected not only from logging but from residential, industrial and other urban development. The province is considering the introduction of provincial riparian legal standards, which would require mandatory application of the Stream Stewardship Guidelines and Land Development Guidelines for the Protection of Aquatic Habitat in urban areas. This would be an important new legal tool for wetland protection. The provincial government should be encouraged to continue with this initiative.

Municipal Act

Changes to the Municipal Act which would increase municipalities’ powers to protect the environment are also required for enhanced legal protection of wetlands. Priority should be given in municipal land use decisions to the goal of “no loss of wetlands” as described above. Some additional amendments that have been proposed by the provincial government include: authorizing environmental planning by local governments; broadening the purpose of development permit areas for the protection of the natural environment; and, enhancing the scope of permits in development permit areas. All these proposed changes would be beneficial for wetlands.

Endangered Species Act

The province lacks strong legal protection for endangered species. A new law would significantly increase legal protection for wetlands. The American Endangered Species Act has been a very powerful tool for conservation of salmon and their habitat in the Pacific Northwest of the United States. The Act in the US is generally regarded as one of the most powerful environmental laws in the world. Since some species of salmon in the US have been listed as endangered, the Act’s requirements to preserve their critical habitat and engage in recovery efforts have proven to be very important for wetland and river protection.

New provincial and federal endangered species laws, with strong provisions for habitat protection, would be useful complements to the current arsenal of legal tools available for wetland protection.

Conclusion

While there are many laws which can be used for wetland protection in BC, there is no specific law or policy focused on protection of rivers or aquatic habitat protection. Since legal responsibility for the water in wetlands, the fish in the wetland, the wildlife that depend on the streamside habitat, and the land beside the wetlands streams is found in different levels of government and different branches within the same level of government, the result is often a lack of accountability.