Table of Contents................................................................................................................................................... 2

Introduction......................................................................................................................................................... 3

Background............................................................................................................................................................. 5

Evaluation of Current System for Managing and Protecting Coastal Habitat in BC........................... 6

Jurisdiction.............................................................................................................................................................. 7

Laws Applicable to Coastal Habitat....................................................................................................................... 8

Gaps in Laws to Protect Coastal Habitat................................................................................................... 29

Lack of Proactive Integrated Planning................................................................................................................... 30

Lack of Binding and Enforceable Requirements to Protect Habitat...................................................................... 32

Inadequate Resources and Enforcement................................................................................................................ 34

Inadequate Use of Existing Legal Powers............................................................................................................. 36

Lack of Public Participation Opportunities.......................................................................................................... 37

Proposals for Changes to Laws to Prevent Further Coastal Habitat Loss....................................... 38

A new provincial policy to protect wetlands....................................................................................................... 39

Strong new regulations under the Fish Protection Act........................................................................................... 40

Creation of a Shoreline Reserve............................................................................................................................ 41

Integrated Coastal Management administered by a Coastal Commission............................................................ 42

Introduction

Like fish, birds and other wildlife, people concentrate in coastal areas. In British Columbia, over three-quarters of the population lives on or near the coast, which consists of 27,000 km of coastline and more than 6500 coastal islands. The province’s population is concentrated in the coastal cities of Vancouver and Victoria and in the rapidly growing communities on the east coast of Vancouver Island. The Georgia Basin has grown from 1.2 million to 2.7 million people in the last 25 years, and population growth is not slowing down.[1] Loss or degradation of coastal habitat has been identified as the chief threat to the health of the shared marine waters of British Columbia and Washington because the impacts are irreversible, the potential harm to the environment is great, and habitat losses are highly preventable. Scientists have urged governments to take immediate action to prevent coastal and estuarine habitat losses.[2]

Habitat is the “physical and biological setting in which organisms live and in which the other components of the environment are encountered … [and there is]…“ no disagreement in the ecological literature about one fundamental relationship: sufficient loss of habitat will lead to species extinction.”[3] In BC, diminishing populations of some species shows the negative effects of habitat loss. A number of stocks of salmon are at risk, in part due to habitat loss.[4] There are 26 species of endangered and threatened freshwater fish in the province, including the Nooksack Dace and the Salish Sucker, both of which are threatened by habitat loss from urban development.[5] Virtually all the COSEWIC listed plants in the Georgia Basin are threatened by urban development. Coastal dependent birds such as the Marbled murrelet are affected by habitat loss. Three species of marine mammal: the Northern Sea Lion, Killer Whale and Harbor Porpoise are affected by human disturbances and have been added to the province’s list of species at risk.[6]

Habitat can be lost and damaged in a number of ways, ranging from physical alteration of the shoreline itself to water quality degradation. Historically the primary causes of nearshore habitat loss were dyking and draining.[7] A major review of coastal habitat loss in the Georgia Basin done in 1994 identified dredging, port and harbour development, log storage, and degradation from pollution such as dioxin contamination as prime causes of habitat loss.[8]

Urban development has also been a major cause of wetland conversion in the Lower Mainland. About 30% of the natural lands that were developed from 1967 to 1982 were wetlands.[9] Urban streams that enter into the Strait of Georgia are in sharp decline. About 120 streams in the Lower Fraser Valley have been lost due to paving, filling and culverting. A 1997 Department of Fisheries and Oceans report classified the remaining streams as follows: 61% are endangered, 24% are threatened and only 15% are listed as wild.[10]

This report reviews the current regulatory system in place in BC to protect near shore habitat. It also describes the gaps in that system, and possible solutions to fill the regulatory gaps. It discusses the federal, provincial and municipal laws that apply to control activities that harm near shore habitat as well as the laws that protect habitat. It also discusses other approaches that can be used to promote habitat protection such as conservation covenants and other legal tools to protect privately owned land. Though commonly thought of as non-regulatory approaches, this group of tools requires a statutory base.

Improvements can be made to our current regulatory framework to protect near shore habitat. Four potential changes are:

A new provincial policy to protect wetlands. The province relies on the federal fisheries habitat protection policy based on the principle of “no net loss”, and has no policy of its own.

Strong new regulations under the Fish Protection Act. The province has passed a new Fish Protection Act to improve habitat protection in urban areas. Regulations developed under this Act could significantly increase coastal habitat protection in urban areas.

Creation of a Shoreline Reserve. Coastal development can alter the ecology of the coastal zone and functioning of coastal and ocean processes. Some ecologically sensitive estuaries and other areas of the coast should remain free from development. Creating a narrow exclusionary area adjacent to the ocean’s edge in the Georgia Basin area in which building and other development is prohibited would improve the current regulatory scheme. This reserve could be created under provincial legislation similar to the laws which created the Agricultural Land Reserve and the Forest Land Reserve, or under integrated coastal management plans developed pursuant to the federal Oceans Act.

Integrated Coastal Management administered by a Coastal Commission. As conflicts between coastal land and water uses increase, the need for integrated coastal management (ICM) is greater. Conflicts are on the rise, between fisheries and agriculture; aquaculture and protected areas; industrial development and environmental protection. Rather than creating a new process each time a coastal conflict arises, an integrated coastal management strategy administered by a multi-agency Coastal Commission would improve habitat protection in British Columbia. This Commission would also be the vehicle for the public process to determine how much estuarine and nearshore habitat should be preserved that the Marine Science Panel recommended.

Background

A BC/Washington Environmental Cooperation Council (the “Council”) was established in 1992 by the Premier of BC and the Governor of Washington to address transboundary environmental issues. The Council in turn created a number of task forces, including the Puget Sound/Georgia Basin International Task Force (the “Task Force”).

To identify the state of scientific knowledge about the shared marine waters of BC and Washington, the Council convened a Marine Science Panel (the “Panel”) in 1993. Three Canadian and three U.S. scientists reported on the current condition of and trends in the marine waters shared by BC and Washington.

The Task Force responded to the recommendations for action of the Panel by asking the Council to support and direct Priority Actions for each of the Panel’s recommendations. In relation to minimization of estuarine wetland habitat losses, the Task Force said that Priority Actions should be:

1. Initiating a public process to identify special areas for protection in each coastal community;

2. Avoiding further losses of all habitat types if at all possible in estuaries with more than 30% of the area already degraded;

3. Applying the principle of no net loss to fish and wildlife habitats and special areas in estuaries where less than 30% of the areas are degraded;

4. Monitoring the success of habitat enhancement and restoration projects required as compensation for losses to development and providing for alternative methods should these projects fail; and

5. Fostering the development of a standardized coastal/shoreline habitat classification system and research on key ecosystem functions.

Work groups were established to address the recommendations of the Panel and are now working on action plans. The BC Habitat Loss Working Group is one of these work groups. A Draft Action Plan is being prepared by the BC Habitat Loss Working Group to address the problem of coastal habitat loss.[11] This report is a background report for the Working Group on the regulatory system now in place to protect nearshore habitat, gaps in that system, and options for improvement to the regulatory system.

Nearshore habitat is typically considered to encompass the strip of shallow water along the shoreline and the lands immediately adjacent to it. The inherent interrelated nature of ecological systems means that activities affecting nearshore habitat may be located a considerable distance away from the immediate shoreline area. The Working Group has chosen to divide the “nearshore” into three zones:

1. Primary Zone– All of the marine waters of the Georgia Basin ( Striat of Georgia and contiguous marine waters) and inland 100 metres from the ordinary high water mark.

2. Secondary Zone – Inland of the primary zone to the approximate 150 metre elevation contour.

3. Tertiary Zone – Inland from the 150 metre contour to the height of land where practical.

This report focuses primarily on those laws which have a direct impact on the primary zone, and in less detail on the laws which have an indirect impact on the primary zone.

It is limited to the regulatory regime governing coastal resources, and does not address the many non-regulatory actions that can be taken to protect habitat such as public education, stewardship approaches, co-operative agreements, streamkeeper and community group involvement. The Action Plan to be developed by the Habitat Loss Working Group will tackle these issues.

Evaluation of Current System for Managing and Protecting Coastal Habitat in BC

This report evaluates the regulatory framework for habitat protection. Unlike Washington State, which has a Shoreline Management Act to coordinate planning and protect the public interest in shorelines, British Columbia does not have one specific law devoted to near shore habitat.[12] Instead, there are different laws at the federal, provincial and municipal levels which may play a role in habitat protection. Each case of habitat protection may involve one or more levels of government, and one or more laws and policies.

This part of the report is divided into four sections.

First, it discusses jurisdiction. Second, it discusses the laws, regulations, and policies that apply to activities in the primary coastal zone which have an impact on habitat. Third, it identifies gaps in the current regulatory regime to protect coastal habitat.Fourth, it identifies and evaluates specific changes to laws that would provide improved protection for coastal habitat.

Jurisdiction

Most of the land (about 93%) in BC is Crown land.[13] The province of BC holds the legal title to the foreshore of tidal waters, the area between the high and low water line which is exposed at low tide. The province also owns the beds of bodies of water “within the jaws of the land”, such as the Strait of Georgia, the Strait of Juan de Fuca and Johnstone Strait. The fact that these inland seas come under provincial jurisdiction is not widely known. National harbours, national parks and defence land is owned by the federal government. First Nations have aboriginal title to many areas of BC, and the ongoing land claims and treaty process will likely alter the regulation of First Nations land. Coastal areas above the high water line in the Georgia Basin are often privately owned.

Both the province and the federal government can make laws because of their land ownership. In addition to this proprietary jurisdiction based on property ownership, each level of government also has legislative or law-making jurisdiction. The three levels of government (federal, provincial and municipal) each have different constitutional powers to enact laws over different subject areas.

The federal government has the constitutional authority to make laws regarding fisheries. The federal Fisheries Act is probably the most important legal tool for protecting wetlands and other near shore habitat. There is no comparable provincial habitat protection law. Other important federal laws for the protection of nearshore habitat include: the Canada Oceans Act, Canadian Environmental Protection Act (CEPA), Canadian Environmental Assessment Act (CEAA), National Parks Act, Navigable Waters Protection Act, Canada Wildlife Act and the Canada Shipping Act.

Most environmental laws are provincial. The provincial government has constitutional jurisdiction to make environmental laws based on their authority to control natural resources; property in the province; sale and management of public lands; and all matters of a local nature.[14] There is no specific provincial coastal protection law. Important provincial laws for the protection of nearshore habitat include the:

· Land Act,

· Wildlife Act,

· Islands Trust Act,

· Park Act,

· Ecological Reserve Act,

· Waste Management Act,

· Water Act,

· Environmental Assessment Act.

Municipal governments also have wide powers to regulate habitat through land use and zoning decisions; and bylaws concerning riparian setbacks, tree removal, watercourse protection and other subjects. Municipalities and other forms of local or regional government have only the powers that are delegated to them by other levels of government. The Municipal Act is the law which regulates what municipalities can do in BC.

Laws Applicable to Coastal Habitat

The laws and policies governing coastal habitat have been strengthened over the past twenty years. A comprehensive review of the regulatory regime governing coastal resources in BC was done in 1978.[15] Since that date, new additions to the regulatory regime include:

· Canada Oceans Act,

· BC Coastal Zone Position Paper,

· Forest Practices Code of BC Act,

· The as yet unimplemented provincial Fish Protection Act,

· Creation of provincial Ministry of Fish,

· Environmental assessment laws at both the federal and provincial levels,

· The federal Policy for the Management of Fish Habitat,

· The Land Development Guidelines for the Protection of Aquatic Habitat, and

· The Federal Wetland Conservation Policy.

The complex laws governing coastal resources can be described based on the activities they regulate, called the “sectoral” approach or based on the processes used to manage the resources, called the “processes” approach.

The main activities affecting coastal habitat are land use, land development, land conservation, water use, pollution, renewable and non-renewable resource extraction. The main processes affecting coastal habitat are: environmental assessment, referral systems, intergovernmental agreements, and planning and growth management.

Land Use

Nearshore land use activities with the potential to either harm or protect habitat are regulated by all three levels of government, and by intergovernmental programs and processes. Any physical alteration of land which qualifies as fish habitat is subject to the federal Fisheries Act, which prohibits harmful alteration, destruction of or damage to fish habitat [16]. This Act will be discussed in detail in the section of this report on “habitat conservation –fish”. Local governments also regulate nearshore land use through their zoning and land use or development approval processes, which will be discussed in more detail in the sections on land development and planning and growth management. However, the provincial government is the primary regulator of land use activities in the nearshore zone due to its ownership of the land.

The provincial law used to regulate and manage the use and disposition of all Crown land, including Crown nearshore land, is the Land Act [17]. This Act provides that, except by order of the Lt. Governor in Council, Crown land below the natural boundary of a body of water must not be disposed of by Crown grant.[18] There is no separate policy for Crown shorelines or coastal areas. Additional protection for nearshore habitat comes from the requirement to obtain approval from Crown Lands before building on the nearshore.

The Land Act gives the province wide discretion to dispose of Crown land through sales, licences to occupy, easements, or leases. Foreshore leases are used for activities such as finfish aquaculture; shellfish harvesting; aquatic plant harvesting; marinas; docks and other structures and log handling and storage. These activities are also subject to other regulatory controls to minimize their impact on habitat. For example, shellfish and aquatic plant harvesting require licences from the Department of Fisheries and Oceans. DFO has developed guidelines for dredging, marina development and boat painting. Log handling and storage are the subject of a host of regulatory controls.[19] Despite the other regulatory controls, the initial decision on whether to allow any new or continuing activity on nearshore land is significant, and so the Land Act procedures are a key component of the regulatory framework for coastal habitat.

The Land Act Tenure Administration System (TAS) is a data base on Crown land leases from 1996 to date. Each type of tenure, and the purpose for which it was issued, is recorded in the TAS. This database provides a means of determining the rate of habitat use and changes in habitat use along the foreshore. It provides a snapshot of the number of existing leases as of the date the review is conducted. As of December 1996, the number of leases and the amount of area allocated to each were as follows:

Type of lease Number of active leases Amount of area (HA)

1. Finfish 18 119

2. Plants 0 0

3. Shellfish 320 1,714

4. Marinas 137 205