West Coast Environmental Law Research Foundation Workshop

SFU Harbour Centre, Vancouver, Friday, June 14, 1996

Legal Options For Protecting Urban Streams:
Workshop Background Paper, Linda Nowlan,
West Coast Environmental Law

Threats to urban streams

As the population of BC expands, and as development and pollution increase, streams in urban areas are increasingly in danger. Urban streams together as a class appear on both the 1995 and 1996 lists of the province's ten most endangered rivers. The Outdoor Recreation Council nominated urban streams because so many are being diverted into culverts, buried under ground, and stripped of streamside vegetation. The Council said: "The effects of rapid urban development are reflected in lower water quality, elimination of green space and loss of fish and wildlife habitat." The report applauded the provincial government's efforts to protect riparian zones in forested areas and expressed interest in achieving similar protection for riparian zones and streams in urban areas.

Continuing federal urban stream work

The Department of Fisheries and Oceans (DFO) works on urban stream protection as part of its fisheries protection work. DFO hired community advisers 15 years ago to work on urban streams. Three years ago, DFO began an urban stream initiative, including the "Partners for Protection of Aquatic and Riparian Resources (PPARR). DFO also conducts public education and awareness campaigns about the importance of urban streams. Their poster titled "Lost Streams of the Lower Fraser River" contains historical photographs of old streams in the area, and stories about their history. It outlines the importance of stream stewardship and recognizes that the loss of the waterways also means loss of the salmon populations as well as a way of life that allowed us to live in harmony with the natural world.

Recent Provincial Initiatives

The province has recognized the importance of urban streams for salmon conservation. In the 1996 Throne Speech, the NDP promised to enact a Fish Protection Act. This proposed Act grew out of the 1995 BC Salmon Habitat Conservation Plan, in which the government recognized: "Urbanization often affects small and seemingly insignificant streams that are crucial for some salmon species such as coho." The government started the process of identifying and prioritizing critical streams for salmon habitat, defined as streams which are:

subject to impacts from urbanization or development or facing future impacts;

still have some salmon and trout habitat and have good potential for restoration;

have coho stocks or habitat, but are often considered unimportant because the stream is comparatively small; or

have endangered or threatened species as well as salmon.

Over 140 critical streams have been identified including more than 50 priority streams. All levels of government have identified the need to protect urban streams. The provincial and federal government have prepared important documents to guide developers and municipal authorities such as:

Stream Stewardship — A Guide for Developers and Planners;

Streamkeepers: A Guide for Wetland and Stream Care;

Land Development Guidelines for the Protection of Aquatic Habitat;

Developing Fish Habitat Signage: A Guide for Community Groups and All Concerned Citizens; and,

Community Greenways: Linking Communities to Country and People to Nature.

Partners for Protection of Aquatic and Riparian Resources (PPARR)

In addition, governments have worked together in the initiative called "Partners for Protection of Aquatic and Riparian Resources (PPARR). Under this initiative, funded by the Fraser River Action Plan and spearheaded by DFO, people from all levels of government took part in workshops to identify the barriers that continue to threaten urban streams, as well as the solutions that they found most useful working in the field. A number of important recommendations resulted from these workshops. The summary document titled Partners for Protection of Aquatic and Riparian Resources contains a list of recommendations, many of which have now been carried out. Studies conducted as a result of recommendations from PPARR include:

An inventory of measures adopted in the Lower Fraser Valley by 25 municipalities and 4 regional districts lists the ways in which different governments are protecting riparian habitat, through bylaws, official community plan mechanisms or identification of environmentally sensitive areas: Protection of Aquatic and Riparian Habitat by Local Governments — An Inventory of Measures Adopted in the Lower Fraser Valley, 1995.

A study was done about the effectiveness of covenants in protecting riparian habitat. A pilot project was chosen in the City of Surrey and a publication titled Protection of Aquatic and Riparian Habitat on Private Land — Evaluating the Effectiveness of
Covenants in the City of Surrey outlines the problems with this form of legal protection for aquatic and riparian habitat on private land.

A comprehensive study of the effectiveness of a number of mechanisms to protect riparian and aquatic resources has been completed by a consultant, also as a result of a PPARR recommendation. The assessment identifies mechanisms, lists issues and proposed actions to address these issues and assesses the overall value of each mechanism in protecting aquatic habitat. The assessment covers legal tools; planning tools; municipal organizational arrangements; monitoring, compliance and enforcement; coordination between governments; technical guidance; and, a host of other issues. It offers many suggestions for improving how governments go about protecting aquatic and riparian habitat.

A study was done of the number of charges made under federal environmental legislation against municipalities, to try and alleviate municipal concerns of increased liability from increased involvement in protection of aquatic and riparian habitat. The study concludes it is only on remarkably few occasions that municipalities have been charged for Fisheries Act violations, especially when considering that the municipal government is directly responsible for water, waste and sewage treatment and storage, as well as construction activities: The Fisheries Act and Local Governments — Court Judgments (1984-1994) in the Pacific Region.

A study was also done of the environmental powers of municipal governments: Environmental Stewardship in the Municipal Act — A Synopsis of Local Governments' Powers.

Jurisdiction

Before considering the current range of legal tools that are available, we must look at the different powers available to each level of government. This divided jurisdiction over the environment has important consequences when considering possible overhauls to the existing legal regime because of the problem of coordinating action between different levels of governments. While coordination of effort is a key issue, the basic legal structure is even more important.

Federal

The federal government's powers to protect urban streams come mainly from its jurisdiction over fish. In the Canadian Constitution, this power is referred to as "sea coast and inland fisheries." The federal Act related to fisheries protection is the Fisheries Act.

Provincial

The province has very wide powers to protect the environment. These come from provincial powers over property and civil rights and all matters of a generally local or private nature.

The province also has the power to delegate authority to municipalities. Most environmental law is provincial in nature.

Municipal

Municipalities have only those powers delegated to them by other levels of governments. The Municipal Act is the chief enabling statute in the province of BC which sets out the powers of municipalities and regional districts. The Municipal Act does not give local governments the power to control natural resources. The Act does not apply to the City of Vancouver — the Vancouver City Charter is the applicable law and is very similar to the Municipal Act.

Interjurisdictional

There are a number of interjurisdictional arrangements in place to protect the environment. The federal and provincial governments have agreements about their different responsibilities for fisheries and environmental assessment. Major interjurisdictional arrangements which may affect protection of urban streams include the Fraser Basin Management Program and the Fraser River Estuary Management Program. The PPARR initiative was an informal interjurisdictional arrangement. Many stream stewardship publications and activities result from cooperative efforts between various levels of government.

A pilot project on Vancouver Island provides a good example of how governments can work together for improved environmental protection. The Intergovernmental Partnership Agreement for the Protection of Environmentally Sensitive Areas between the Ministry of Environment, Lands and Parks, the DFO, and, the Comox/Strathcona Regional District is a written agreement that provides a "one window" approach to development applications, with coordinated examination of the habitat impacts of each new proposal.

Legal options to protect urban streams

Most of the analysis and activities related to stream and aquatic habitat protection have focused on examining what arrangements are now in place and how those arrangements could be improved. A broader look at the basic legal underpinnings behind stream and river protection has not yet been done. Examining the experience of other jurisdictions with protection of river resources has also not yet been done. One of the purposes of this workshop is to take a step back and examine the legal framework in place for riparian protection. How are the current tools working? More importantly, are any tools missing?

Another gap in the wealth of activity that has been taking place recently relates to the involvement of environmental, conservation and community organizations. Government authorities have been interviewed exhaustively, and have provided their perspective on the current state of affairs. Efforts have been made to identify the concerns of developers as well. Yet members of the public who have been directly involved in stream protection efforts have not had as great an opportunity to voice their opinions and give feedback to planners and regulators about which tools work best for ordinary citizens. That is another purpose of the workshop — to get input from non-governmental organizations.

Federal legal tools Fisheries Act

The most important provisions of the Fisheries Act for urban stream protection are:

a prohibition against altering or destruction of fish habitat (s. 35), and

a prohibition against emitting a deleterious substance into water frequented by fish (s. 36).

The first provision, relating to habitat protection, allows the Department of Fisheries and Oceans (DFO) to authorize certain projects to go ahead even if they may damage fish habitat. In this case, DFO provides an authorization for a project to proceed, and requires habitat compensation to achieve the government's policy goal of "no net loss of fish habitat."

The second provision is a general anti-pollution section. Even though provincial law also contains many anti-pollution provisions, it is often the federal Fisheries Act which is used to prosecute offences of polluting rivers or streams where the discharge is deleterious to fish.

The importance of the Fisheries Act is obvious when considering the number of authorizations required, the number of investigations underway and the number of charges laid in the last two years in the province — approximately 92. Most charges are related to stream or river protection.

Limitations of the Fisheries Act

There are a number of limitations with the Fisheries Act, despite its power to protect fish.

Who gets charged?

Enforcement of the Act is limited by lack of resources, and also by political concerns. As Dovetail Consulting has noted: "Prosecutions are generally pursued where there have been approvals granted, where warnings have occurred, and/or cases where the proponent should be familiar with requirements and the proponent still commits an offence." DFO must consider the financial and practical aspects of prosecutions. Although there is widespread municipal fear of prosecution under the Fisheries Act, there is an equal, if not greater, amount of concern from the NGO side that municipalities are essentially exempt from prosecution under the Fisheries Act. Despite the fact that the sewage treatment efforts of the Greater Vancouver Regional District (GVRD) have made the district a constant repeat offender on the province's pollution concern list, the federal and provincial governments have refused to lay Fisheries Act charges.

Private prosecutions

Private citizens may initiate prosecutions under the Fisheries Act. However, the province has the authority to intervene in the prosecution to either take it over, or to stay or cancel the proceedings. This is an obvious constraint on NGO involvement. The Georgia Strait Alliance has been frustrated in its attempts to prosecute the GVRD for violations of the Fisheries Act and the provincial Waste Management Act.

Reactive Law

Another limitation of the Fisheries Act is that prosecutions usually occur after damage has occurred. It is rare for the Minister of Fisheries and Oceans to issue a stop work order prohibiting any damage from occurring, even though that provision is available (s. 37(2)(b)). Though everyone agrees that `an ounce of prevention is worth a pound of cure' and that restoration work is expensive, complicated and time consuming, it is still rare to have the department intervene before there is proof of damage.

Provincial legal tools Fish Protection Act

In the 1996 Throne Speech, the NDP promised to enact a Fish Protection Act. The main purpose of the proposed legislation is to provide the necessary legislative tools to help achieve the province's goals of saving British Columbia's fish stocks and habitat, and conserving biological diversity. Amendments to current environmental and municipal legislation will help fulfill this purpose through an ecosystem approach to conservation. This legislation will prevent further loss of salmon stocks and habitat in British Columbia through amendments to the provincial Fisheries Act, Water Act, Wildlife Act, Municipal Act, Vancouver Charter, Special Accounts and Appropriation Act.

Waste Management Act

The Waste Management Act is the province's main anti-pollution law. It prohibits emitting waste without a permit. Permit requirements consider the ecological sensitivity of the environment receiving the waste, such as its ability to accommodate a given level of BOD (Biochemical Oxygen Demand).

The Waste Management Act also requires regional districts to prepare liquid waste management plans to deal with sewage, storm water runoff, combined sewer overflows, industrial operations, agricultural runoff and other sources of pollution, all of which can harm urban streams and the marine environment.

The Waste Management Act is the most widely used environmental law in the province. Over 500 charges have been laid in the last two years under this Act. The Act has been used more frequently for prosecution in recent years — the number of charges laid under the Act increased by 40% between 1989 and 1990 from 246 to 345.

A positive feature of the Waste Management Act is the waste discharge permit fee. Each permittee must pay a fee based on the volume and toxicity of the material that is discharged. The theory is that the more it costs to pollute, the greater the incentive it is to reduce pollution. This fee, introduced by regulation in 1992, has had a positive impact to date.

There is also a right of appeal to the Environmental Appeal Board (EAB) related to decisions made under the Waste Management Act. The right of appeal is available to any person "who considers himself aggrieved" by a decision of a director.

Limitations of the Waste Management Act

Failure to Control Nonpoint Source Pollution

Although the Waste Management Act is a powerful anti-pollution tool which could be used to make urban streams cleaner, there are limitations with this Act. It is designed to control pollution emanating from a single source, and is not as adept at controlling nonpoint (or widely distributed) sources of pollution. Construction and/or land clearing and/or industrial use can all deposit unwanted substances into the water and harm a stream's health. The cumulative impacts of a large number of small sources of pollution can create deteriorating conditions in urban streams that may be as great, or greater than, any single source. Urban runoff (storm water or nonpoint source pollution), which is usually collected separately from wastes destined for sewage treatment plants, and can contain toxic substances, may be even more harmful than treated sewage effluent. The 1993 BC State of the Environment Report notes that BC, like other Canadian jurisdictions, currently has few regulations controlling storm water discharges and that even though this type of discharge should be controlled by the Waste Management Act, few permits, if any, have been issued for such discharges.

Water Act

The Water Act is an important tool for protecting urban streams. The Water Act is the chief provincial law controlling the use of water. It has historically focused on regulating quantities of water, through a licence system. The most important part of the Water Act for urban stream protection is the licence allocation system. The system works on `a first come, first served' basis. If you obtain a water licence before someone else, your rights to use the water will prevail over the person who obtained a licence at a later date. If two licences are obtained on the same date, there is a priority list of uses established in the Act which governs priority. Licences have priority according to a list set out in the Act. Conservation is listed as the ninth of ten priority uses. Although water licences may not affect urban streams as much as other legal provisions, they are still an important legal tool which could be used more often to protect water resources, especially in areas of rapid urbanization where the water has not been allocated.

The number of charges under the Water Act in the past two years was about 94. Again, because of the way that records of environmental prosecutions are kept, it is difficult to determine how many charges relate to urban stream protection.

There is also a right of appeal to the Environmental Appeal Board (EAB) related to decisions made under the Water Act. The right of appeal is more restrictive than that found in other environmental laws. Of the EAB decisions in the past year under the Water Act, none related to licences which would affect urban streams.

Limitations of the Water Act

There are a number of problems with the Water Act. It is outdated. The province has promised a complete overhaul of the Act but has not yet acted on this promise. Some of the problems are discussed below.

Instream Flow Protection

Fish have no "right" to water under the Act. There is little provision for instream conservation. Licences are not granted for this purpose. There is ample precedent for this type of legal protection from other jurisdictions. A number of organizations such as the Steelhead Society of BC have been proposing instream flow protection provisions in the Water Act for many years. The Westwater Research Centre prepared a detailed publication on rivers and recreation routes which discusses the instream flow protection right. Many US jurisdictions include this type of protection provision in their water legislation.

Failure to Control Nonpoint Source Pollution

Another problem with the Water Act is the historical fact that it was designed to regulate quantities of water, not quality of water. Other jurisdictions have laws designed to maintain minimum water quality standards. For example, the goal of the US Clean Water Act is to eventually make all waters under the Act both "swimmable" and "fishable".

Limited Riparian Protection

The Water Act also has very limited provision to protect the land beside the water body. Protection of riparian zones has a major effect on the habitat of many species which depend on this interface between land and water. Regulations for urban stream protection could be made under this Act or alternatively, under the Municipal Act.

No Groundwater Protection

BC is the only province without groundwater regulation. It is sorely needed to address problems such as contamination of aquifers from fertilizers and pesticides; excessive withdrawals from wells in coastal areas causing saltwater intrusion; and, poor well construction practices. The Water Branch of the provincial government solicited public input in 1993 on its proposals to regulate groundwater, but has not yet released draft legislation or regulations for further public review.

Many complaints have also been made by various levels of government about the complicated referral process now in place pursuant to s. 7 of the Act. Recommendations have been made in the PPARR report to remedy these problems.

Wildlife Act

The parts of the provincial law regulating wildlife that relate to endangered species are potential tools that could be used for urban stream protection. However, as it is currently administered, the Wildlife Act is not an effective tool for this purpose. The Act is discretionary: the Minister may chose to designate a species as endangered, and may set aside land as critical habitat for that endangered species. Both steps are rarely used. Only four species have ever been legally designated as endangered. And only once has critical habitat been set aside for an endangered species in the province. There are no fish officially designated in the province as endangered species.

Although the Wildlife Act is an ineffective tool for protection of endangered species, the Ministry of Environment does have programs related to protection of freshwater fish, whether or not they are endangered. Recent initiatives will expand this type of protection for endangered fish.

Municipal legal tools Municipal Act

The Municipal Act contains many tools that could be used to protect urban streams. Other laws enforced at the municipal level include the Local Services Act and its Subdivision Regulation, which sets minimum standards for onsite sewage servicing; the septic standards set by the Health Act; and, the goals for growth management set out in the Growth Strategies Act. If a municipality has environmental protection as a priority, there is no lack of tools at its disposal.

The available municipal legal tools have been extensively canvassed in recent publications such as Environmental Stewardship in the Municipal Act — A Synopsis of Local Governments' Powers (DFO, 1996) and the forthcoming Dovetail Consulting publication prepared for DFO on assessment of mechanisms for protecting riparian and aquatic resources in urban areas. The Guide to Stewardship Bylaws, a publication that is part of the Stewardship series, is also available as a working draft and will be published shortly.

Limitations of the Municipal Act

There are a number of problems in looking to the Municipal Act or to municipalities themselves, as the chief source of legal protection for urban streams. A primary limitation is jurisdiction. Many municipalities question whether they should be responsible for protecting the environment. This is traditionally seen as the responsibility of more senior levels of government. A closely related concern is the issue of "downloading." Municipalities perceive that they are frequently given additional responsibilities, such as those for environmental protection, but are not given additional resources (i.e. money) to perform these additional responsibilities.

Municipalities also have a fear of liability when they embark on activities such as water lines work which may affect the environment. An additional concern is the complicated referrals process related to municipal protection efforts, since senior levels of government such as the Department of Fisheries and Oceans and the Ministry of Environment, Lands and Parks still wish to ensure that matters under their jurisdiction are adequately dealt with.

Land Development Guidelines for Protection of Aquatic Habitat

The Land Development Guidelines for the Protection of Aquatic Habitat were produced in May 1992 by the Habitat Management Division of the Department of Fisheries and Oceans and the Integrated Management Branch of the Ministry of Environment, Lands and Parks. The Guidelines apply to development in or adjacent to waters containing fish or fish habitat.

The Guidelines apply primarily to salmon, trout and char, but are applicable to all fish species that may be affected by developments in or adjacent to their waters. Out-of-stream habitat features such as wetlands are included. The goal of the Guidelines is to "ensure that the quantity and quality of fish habitat are preserved and maintained at the productive level that existed prior to land development activities." Thus, land development projects are subject to the following guideline objectives:

leave strip protection and provision

erosion and sediment control and site development practice

storm water management

instream work controls

fish passage and culverts maintenance

prevention of deleterious substance discharges

While the Land Development Guidelines have no legal force, (unless they are incorporated directly into a bylaw) they may be of use in deciding whether there has been a breach of the standard of care required of developers in a prosecution for alteration or destruction of fish habitat under the Fisheries Act. The guidelines also help the Minister of Fisheries and Oceans to decide whether development should be allowed, if there is the possibility of a net loss of fish habitat under federal control. The Guidelines do not adequately protect wetland and other aquatic habitat for non-fish species. Currently, even the 15 metres minimum setback required by the Land Development Guidelines for the Protection of Aquatic Habitat is frequently not achieved because developers will not give up the land.

Some municipalities in BC (such as the District of North Vancouver) have incorporated these Guidelines directly into their bylaws. This is an important tool for wetlands protection, as it limits what type of development can occur near riparian and aquatic habitat. An approving officer for the municipality may refuse to give planning permission for a new development if the Guidelines have not been followed.

Bylaws

There have been some notable successes with the use of environmental protection bylaws for urban stream protection. The District of North Vancouver is a pioneer in this field. It introduced its environmental protection bylaw in 1991, which incorporates the Land Development Guidelines for the Protection of Aquatic Habitat, discussed above. The bylaw is used to ensure compliance with the habitat objectives expressed in the Land Development Guidelines. Before a developer is given a permit from the municipality allowing development to proceed, he or she must agree to comply with the bylaw. Developers are therefore educated about the importance of urban stream protection at an early stage of the development activity. If the bylaw is breached, the permit can be revoked, and the developer can be found guilty of an offence.

There is a lot of interest in the idea of a model bylaw. In response to this interest, the federal and provincial governments will soon jointly publish a Guide to Stewardship Bylaws. This document is designed to provide detailed information about regulatory powers available to local governments to control land use and environmental resources. There are a number of possible forms of stewardship bylaws, including water course or stream conservation bylaws. The publication provides sample bylaw clauses, and an excellent discussion of the role these bylaws can play. The sample wording can be used by a municipal council to tailor a bylaw to meet local needs and address the local environmental conditions.

In relation to urban stream protection, the Guide to Stewardship Bylaws has an extensive discussion of watercourse conservation bylaws. It notes that water course conservation bylaws can play a stewardship role in:

enforcing an open streams policy,

improving water quality in water courses, in particular by adding control of other deleterious substances to the control of sediment exercised in the soil removal and deposition bylaw, and

incorporating water quantity performance standards for storm water management to regulate the flow discharge of development into water courses.

Limitations of bylaws

If the entire length of an intermunicipal urban stream is to be protected, relying on individual municipalities alone will not do the job. Some municipalities do not have urban stream protection as a priority. Others do not have the resources to devote to this issue, even if it is a priority.

Compensation for Changes in Zoning

Another important issue relates to compensation for `rights' which may have to be amended in the face of ecosystem needs. When important riparian habitat is located on already zoned private land, a change in zoning may limit the landowner's rights and compensation may have to be paid in certain cases if required by statute. However, under Canadian law, compensation for a change in land use is not an automatic right, and the government may choose not to pay compensation, as it did, for example, when the Agricultural Land Reserve was created in 1973.

Private Land Protection Land Title Act and Conservation Covenants

The Land Title Act is an important tool for protecting urban streams, as it is the chief statute controlling land disposition in the province. Since the problem of legal protection for urban streams has both a water and land component, it is important to look at land laws like the Land Title Act as well as laws that focus more on water. To protect streams the law must address both the water quality in terms of what enters the water and what is taken out of the water (including the water itself) as well as the physical space or land around the water, which can be in the form of culverts, or pavement, or erosion of the banks of a stream.

The Land Title Act contains provisions for a legal tool called a "conservation covenant", created in 1978 under s. 215 of the Land Title Act. This type of covenant is an agreement between a private landowner and the Crown or Crown corporation or agency, municipality or regional district or a local trust committee under the Islands Trust Act. Municipal governments have used s. 215 covenants to specifically protect fish habitat on privately owned land. Many covenants of this type have been signed between a landowner and the Ministry of Environment, Lands and Parks in which the landowner agrees not to alter the riparian portion of his or her property covered by the covenant.

The Land Title Act was recently amended to allow conservation organizations to be the holders of conservation covenants. As this is a relatively new legal tool, it is difficult at this point to assess the effectiveness of this new type of covenant to protect urban streams.

However, a study done by DFO and the City of Surrey, titled Protection of Aquatic and Riparian Habitat on Private Land — Evaluating the Effectiveness of Covenants in the City of Surrey 1995, did look at the use of s. 215 covenants in a study area. Of the 261 lots that were the subject of the survey, 185 or 71% had covenants. The frequency of encroachment into these covenanted areas was 75%. This means that the covenants were not being followed. Landowners had either intentionally or unintentionally affected the riparian setback area in a negative way.

The study also concluded that s. 215 covenants alone were not effective in protecting fish habitat in the Municipality of Surrey under the current management regime. Suggested reasons for this failure included lack of enforcement and lack of resident knowledge of the conditions attached to the covenant. The study found a big gap between those landowners who said they knew the conditions of the covenant and those who actually understood it. More public education about the terms of such covenants was recommended.

Also, lack of enforcement is a problem. The Ministry of Environment and DFO are reluctant to increase enforcement because it would entail lengthy, costly and risky civil action suits. The study notes: "If violators know there are penalties for their inappropriate actions, they may make more of an effort to educate themselves about their responsibilities respecting covenants."

Missing legal tools

The preceding discussion reveals the limitations of the existing legal framework for urban stream protection. Other approaches have been used elsewhere, and could be incorporated into BC law.

Provincial Riparian Protection Standards

There are no province-wide standards for stream protection. While the Forest Practices Code establishes riparian management of areas for all Crown forest land, no such protection exists for stream or riparian corridors in other areas.

There are precedents for province-wide standards. Under New Brunswick's Clean Water Act, a water quality regulation, a water course alteration regulation, and a water course setback designation regulation all confer varying degrees of protection for riparian corridors. Under the setback designation regulation, certain watersheds are designated as protected areas, and lands within 75 metres of the banks of water courses located within these watersheds are named as protected areas. There are a number of other jurisdictions that have minimum requirements for riparian setback areas. These examples have been canvassed in the recent publication by CORE on protection of private land. This publication has also canvassed the pros and cons of development of enforceable province-wide standards to regulate development in and around environmentally sensitive areas such as riparian corridors. These arguments are summarized here.

Pro:

minimum amount of protection everywhere in the province,

uniform protection transcends municipal boundaries,

clarification of rules for landowners, developers and public,

educational function of provincial standards,

reduction of time required for referral process,

reduction of developers' risk and liability,

elimination of community-by-community lobbying to weaken standards,

availability of detailed research about minimum standards required for aquatic habitat preservation.

Con:

need for more resources devoted to enforcement,

possible intrusion on right of local governments to deal vocally with environmental problems,

risk that provincial government will set standards inappropriate for local conditions,

need to establish base line level of environmental protection while allowing flexibility for provisions designed to address local circumstances,

need to provide local government with adequate resources to implement provincial standards.

River Act

Another proposal to protect urban streams as well as all other riparian corridors throughout the province is a River Act. This type of law could be used to incorporate uniform provincial riparian standards, as described above. This option has been extensively studied by the Westwater Research Centre in a project called "Rivers and Recreation Routes." While the focus of this project was on rivers of great historic, scenic and/or ecological value, it could equally used for urban stream protection. In the US, the Wild and Scenic Rivers Act, a federal law, has been instrumental in many river protection efforts. States also have river protection laws, such as Vermont's Comprehensive State River Policy Act, which has strong instream flow protection, and which allows the state government to prohibit dams on designated waters. State laws, like provincial laws, are key parts of the legal toolbox because they can be used to regulate land use, pollution and resource extraction.

Nonpoint Pollution Control

Controls on this type of pollution are stricter in the US than in BC and the rest of Canada. The Coastal Nonpoint Pollution Control Program, part of the American federal Coastal Zone Act Reauthorization Amendments of 1990 requires all coastal states with federally approved coastal zone management programs to develop coastal nonpoint programs which include enforceable management measures for sources of "poison runoff" like agriculture, urban use, forestry, marinas and recreational boating and channelization and channel modification, dams, and streambank and shoreline erosion. The section on urban runoff in this law has been criticized for not setting numerical limits on certain activities or practices which would help with enforcement, but the detailed explanation of cost effective management practices to limit the many sources of urban runoff is particularly important for urban streams. One example — limiting the amount of land that can be paved in a new development — will reduce both the amount and type of harmful runoff, since rainwater runs off paved surfaces ten times faster than off unpaved land.

Wetland Protection Policy

Another useful tool for protecting urban streams would be a provincial wetland policy. Currently the province operates on an informal policy of no net loss of wetlands. However, this informal policy is little known, and not frequently used. There are numerous cases where wetlands, including those beside urban stream areas, are not protected. A formal wetland policy, and education of all levels of government decision makers on the importance of this policy, would improve legal protection for urban streams.

Endangered Species Act

The Endangered Species Act (ESA) has been a very powerful tool for conservation of salmon in the Pacific Northwest of the United States. The ESA 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 river protection.

Improvements to our provincial wildlife law and its endangered species provisions, as well as a new federal endangered species law which would apply to fish that fall outside of provincial jurisdiction, would be a very useful complement to the current arsenal of legal tools available for urban stream protection.

Conclusion and Questions for Workshop Participants

The strengths and weaknesses of the present array of legal tools are canvassed above, and will be discussed more thoroughly by the workshop speakers.

Question: Are there any changes that should be made to existing laws to improve legal protection for urban streams? What works? What doesn't?

While there are many laws which can be used for urban stream protection in BC, there is no specific law focused on protection of river or aquatic habitat protection. Since legal responsibility for the water in urban streams, the fish in the streams, the wildlife that depend on the streamside habitat and the land beside the 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.

Question: Is a new law required which would be devoted solely to riparian protection? What provisions should be in the law?

The divided jurisdiction also means disagreement over who should pay for fish habitat protection. The traditional approach has been that the broader community pays via tax dollars used for government programs at either or all of the federal, provincial and municipal levels. Another possibility is for individual property owners to contribute to this form of environmental protection, through a mechanism similar to that found in the Municipal Act, s. 995, under which local governments may require an owner of land that is being subdivided to provide, without compensation, a corridor of up to 20 metres in depth for highway use within the subdivision. Many would argue that securing land for a stream corridor is even more in the public interest than securing land for more highways.

Question: Who should pay for urban stream protection?

Community groups working "on the ground" to improve stream protection take a variety of different approaches, including private land stewardship, public education, participation in community planning and enforcement of environmental laws.

Question: Is it possible to formulate guidelines on which approach works best in a particular situation?

People often complain about over-regulation, minimizing the powerful role that law plays in protecting the environment. Without the legal tools appropriate to do the job, and the proper application of these tools, important areas of the environment can be left unprotected. Now is an opportune time to influence the urban environmental protection agenda, and ensure that urban streams receive the protection they deserve.