West Coast Environmental Law
Research Foundation Workshop

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

Speaking Notes

Introduction

As in many places, humans in the lower Fraser have developed land adjacent to water. This was to have water access or reclaim lands for agriculture, industry, and/or urban settlement. Now development on streams is desirable for aesthetic reasons, etc.

This has caused great stream loss during the past hundred years in the GVRD areas.

What have we done to protect habitat? Section 36 is 129 years old. All tried and effective. Includes fines, etc. Simple to use and prove with a simple point source type problem.

Section 35 is only 20 years old. Simple to use and effective but as in 36, not overly proactive; usual application after the fact.

To help define the intent of sections 35 and 36, DFO resorts to guidelines (Land Development Guidelines). Problem with guidelines is that they are often ignored and are not enforceable. Also developed Net Gain/No Net Loss policy (National Fish Habitat Policy 1986). Policy is not law but defines the approach DFO will take towards application of (mainly) section 35 of the Fisheres Act.

Conservation     Restoration    Development

no net loss     net gain    net gain

The problem Urban development is usually multiple impacts on the overall health of a watershed and the stream and the fish are the ultimate victims. Usually, the impacts are not directly on the streams and are done by large number of developers, citizens, etc. Such impacts can be the results of piecemeal loss of riparian habitats, paving over of a watershed — anything over ten percent impervious surface area conversion from forest/soil etc usually causes hydrologic change that is negative to the stream.

Fisheries Act is not the best tool to control multiple and indirect impacts on a stream unless there is the will to hold the municipality responsible since they control land use and authorize the works through zoning and building permits, etc. One could have an urban stream regulation like the Forest Practices Code — do we have will? Therefore, it is essential to get the Municipal Act to relate to the Fisheries Act requirements or else habitat will continue to be lost and conflict will continue.

· fish responsibility federal government

· planning and development municipal/local government

What happens at the federal level most impacts habitat. It is a combination of our water and land decisions (provincial responsibilities) that dictates the well being of fish (a federal responsibility). We must have an integration of responsibilities.

Our Stream Stewardship and Greenways programs are to promote integration and proactive planning as most enabled by the Municipal Act. The present referral system is a reactive system; the new system we are promoting is proactive.

Overheads

Summary Over the years streams have attracted people to various areas, but we have subsequently filled in habitat. In Richmond, for example, there have been significant losses due to development over the last one hundred years. At that time there was over 2000 hectares of habitat, now there is roughly 100 hectares. These are big impacts. Similarly, the loss of salmon streams in the Burrard Inlet over the last century has been phenomenal. There are over 3000 kilometres of streams in the lower Fraser Valley and 1410 kilometres in urban areas. 588 kilometres of streams have been lost.

The Fisheries Act section 36(3) is a strong anti-pollution section that is over 120 years old. It is simple and well-tested. One just needs to show there was a "deposit" of a "deleterious" substance, in fish water, where there was not due diligence. Penalties are up to one million dollars and/or three years in prison for indictable offences. At the same time it is still a reactive law. The Act works best for point source discharges, urban development issues are more difficult.

Section 35(1) regarding fish habitat has only been around since 1977. This late protection of habitat may have played a role in the number of streams that have been lost. Elements of the offence are proof that fish habitat is involved and that it has been harmfully altered. Fish habitat includes spawning grounds and all life processes, which raises the question of how indirect impacts can be. So far the Act has not moved far beyond riparian zones (i.e. thirty metres or so), even if it is known that significant alteration of the watershed will have an impact.

Otto Langer thinks that things are better now than in the recent past, but that we must still consider how to overcome current shortcomings. Guidelines have been published, but they are not enforceable. Some people interpret them as requirements, others don't. Many people do not read them, or if they do, don't care.

At a policy level the National Habitat Policy is "no net loss" involving three goals: 1) stop loss/ habitat conservation; 2) habitat restoration; and, 3) habitat development.

If one takes the Coquitlam River as a an example, it is easiest to prosecute, but in terms of dealing with urban development on a watershed basis, the Fisheries Act is not very helpful. There are a lot of problems, and we must ask who should be held responsible (for runoff for example). If it is municipalities, would there be the will/guts to charge them all? Coquitlam is putting in a Sediment Control Bylaw, but there is a need to get all parties on side, including the development industry (which is worth one billion).

In a survey of municipalities for environmental friendliness, four or five were adequate, including North Vancouver and Langley; some were improving (e.g. Surrey), while the Lower Mainland in general was bad.

At the end of the day, a lot more is needed than simple strong legislation.