Riparian Area Update – May 2014

Riparian Area Regulations – Where’s the Debate?

I would first of all like to thank the Trustees for getting us to this point in the process.

As some readers may know, I have been a vocal proponent of (a) accurate mapping of fish bearing streams, and (b) retaining our current bylaws regarding protection of fish habitat.

In fact, back in early 2011 I had been the single voice at the meeting held in Artspring requesting that accurate mapping be part of the process. At that time Trust staff and the Trustees disagreed with the idea and wanted to blanket 60% of the island with RAR regulation.

However, while the accuracy of the mapping before us today is a vast improvement over the existing Map 21 in the OCP, and over blanket mapping in general, in my opinion it is still a few steps away from what should be the final designated areas of protection for Salt Spring.

Protect and Restore?

I have heard it stated the RAR was created to protect and restore fish habitat.

That is not correct. The RAR’s purpose is to “protect riparian areas from development.” The word “restore” does not appear anywhere in either the Riparian Area Regulation, the Riparian Areas Regulation Assessment Methods or the Fish Protection Act.

The RAR was not a vehicle created not intended to be used to restore fish habitat.

Its clear and unambiguous purpose is to protect existing fish habitat from development.

Mr. Andy Witt, Manager of Habitat Management, Ministry of Forests, Lands and Natural Resource Operations, contacted the Gabriola Sounder in October 2013 to correct some misinformation put out in letters to the editor by the Property Rights Action Group (PRAG) in relation to the Riparian Areas Regulation Implementation on Gabriola.

One of the issues he brought up is the idea of calling Riparian Areas “potential fish habitat.”

Andy corrected that, saying if a stream has been assessed as being in the RAR area, it is fish habitat, there is no “potential” about it.

“Those areas adjacent to streams are fish habitat – the whole thing is where fish habitat begins and ends. The only time it’s not is if there have never been fish there. If the barrier is because of a waterfall, then it isn’t fish habitat depending on where the waterfall is.”

Thus the question arises, of all of the identified streams and lakes on Salt Spring, where does fish habit begin and end, and, have fish ever actually, and truly, lived in all of the reaches which have been identified?

To date, there has been no analysis by the Islands Trust or its consultants, or data or documentation provided, indicating fish presence in dozens of the watercourses which are now being proposed to be fish habitat.

The RAR is a “policy directive.” But, what is a “policy directive?”

The RAR is a policy directive from the Provincial Government to local governments. A policy directive from the Province is in essence a demand that local governments change their bylaws to meet the directive, OR ensure that their existing bylaws are comparable to the directive.

In this case the Province is demanding local governments do something to protect fish habitat.

The authority for creating the RAR policy directive comes from its parent legislation, the Fish Protection Act.

The Fish Protection Act states that local governments must follow policy directives with regard to fish protection OR if in the opinion of the local government current bylaws provide a level of protection that is comparable to, or exceeds, that of the policy directive, the local government does not need to do anything.

In other words, and in this case, the Provincial government gave the local Trust Committee the discretion to decide whether our current bylaws provide a sufficient level of protection of FISH HABITAT.

It is vitally important for the public to understand parent legislation (Fish Protection Act) trumps any offspring regulation (RAR).

I argued strenuously with Islands Trust staff from 2007 through to 2011 that nothing other than accurate mapping was required to meet the Fish Protection Act requirements, IF the LTC decided our existing Development Permit Area 4 requirements and the regulations contained within our Land Use Bylaw already provided sufficient protection.

What level of protection do our current bylaws provide?

So the most obvious question is – Do our current bylaws provide a level of protection comparable to the protection which the RAR may provide? Well, let’s look at what protection our current bylaws provide for water bodies on Salt Spring.

Development Permit Area Protection

When we go to existing regulations contained within Volume 2 of the OCP, we find that Section 4, the Development Permit Area 4 requirements state that all of the following activities must not be undertaken without a development permit:

1. Removal of trees within 10 m of the natural boundary of a lake or a stream (or within 300 m of Maxwell Lake) Removal of other vegetation within 10 m of the natural boundary of a lake or stream (or within 300 m of Maxwell Lake) that results in the exposure of a total area of bare soil more than 9 m2 in area;
2. removal of vegetation in a wetland, or
3. Installation of a septic field within 61 m of the natural boundary of a lake (or within 300 m of Maxwell Lake), or
4. Development of an impervious surface within 10 m of the natural boundary of a lake or a stream (or within 300 m of Maxwell Lake), or
5. Any works or installation of structures within a stream or below the natural boundary of a lake, or
6. The subdivision of land parcels that create additional new lots within this Development Permit Area.

All of those development activities must not be undertaken without a DP.

In Section 6 of the OCP are listed the objectives of Development Permit Area 6, which is UNSTABLE SLOPES AND SOIL EROSION HAZARDS.

Those objectives include (at E.6.3.3), the following – “To protect land, streams, water bodies and the sea from damage due to soil erosion.” Thus landowners in areas subject to unstable slopes and soil erosion must either obtain a development permit or a report from a professional before proceeding with development near a stream or water body.

Land Use Bylaw Protection

When we move to the Land Use Bylaw we find further levels of protection. It starts there with the definition of water body:

“water body” means the sea or any natural depression with visible banks, or a wetland with or without visible banks; and includes any lake, river, stream, creek, spring, swamp, gulch or surface source of water, whether containing fish or not; and includes seasonal streams; and includes any surface drainage work or catchment pond that is a man-made replacement or diversion of a natural water body.”

This definition necessarily includes every fish bearing stream on Salt Spring Island and every ditch that is a replacement or diversion of a natural water body.

Section 4.4.1 states “No building or structure except a fence, pumphouse or boathouse may be sited within 15 m of the natural boundary of any water body.”

Section 4.4.3 states “No fill used to support a building or structure may be placed within the distances set out in Subsection 4.4.1”

Section 4.4.4 states “The underside of the floor system of any portion of a building used for habitation, or for the storage of goods damageable by floodwaters, must be at least 1.5 m higher in vertical elevation than the elevation of the natural boundary of any water body that lies within 30 m of the building.”

Section 4.5.1 states “No sewage disposal field or septage pit may be located within: (1) 30 m of the natural boundary of the sea; (2) 60 m of the natural boundary of Blackburn Lake, Bullock Lake, Cusheon Lake, Ford Lake, Maxwell Lake, Roberts Lake, Rosemurgy Lake, St. Mary Lake, Stowel Lake, or Weston Lake; (3) 60 m of the natural boundary of a water body that leads into the lakes named in Article 4.5.1(2), or (4) 30 m of the natural boundary of any other water body.”

Section 4.5.2 states – No confined livestock areas used or intended to be used for more than 4550 kg of livestock, poultry or farmed game, no barn containing manure-based mushroom cultivation and no storage area for agricultural waste may be located within 60 m of the natural boundary of Blackburn Lake, Bullock Lake, Cusheon Lake, Ford Lake, Maxwell Lake Roberts Lake, Rosemurgy Lake, St. Mary Lake, Stowel Lake, or Weston Lake nor within 30 m of any water body draining into one of these lakes.

Section 4.5.3 states – Where it is permitted by zoning regulations, a principal use consisting of the commercial or institutional production, storage or manufacture of the following products is to be setback by 30 m from the top of the bank of any natural water body, except where these take place indoors within the Ganges Village Core: Petroleum products including but not limited to oil, gasoline, grease, fuel oil, heating oil, Trash or debris, Pet or domestic animal wastes, Manufactured chemicals, Paints and solvents, Steam cleaning wastes, Laundry wastes or vehicle washing wastes, Soaps. Pesticides, herbicides and fertilizers Sanitary sewage Chlorinated, chloraminated or brominated water or chlorine, chloramine or bromine, in concentrations above that known to have adverse impacts on aquatic life. Degreasers and solvents Bark and other fibrous materials Antifreeze, batteries, tires, scrap metal or other automotive products Animal carcasses Deposited soil Acids or alkalis Vehicle wastes Construction materials

Section 4.5.5 states – The washing of fresh concrete for cleaning or finishing purposes or to expose aggregates is to be set back at least 30 m from the top of the bank of any natural water body.

Section 5.3.5 states – Where a lot being subdivided contains or abuts a water body, each of the new lots being created must provide sufficient area for a building envelope of 280 square metres, an access driveway and on-site sewage treatment system to be constructed outside of the setbacks from each lot line and the water body as required in Part 4.

Section 5.7.3 states – Every surface drainage system designed for a land subdivision located within 30 m of a fish-bearing water body, including the sea, must be consistent with the Land Development Guidelines.

Section 5.7.4 states – No water body may be diverted, altered, or used for surface drainage purposes so as to transfer water between natural surface water watersheds.

And Schedule F 4 (e) States – No campsite may be closer than 15 m to the natural boundary of any water body.

I respectfully submit all of the above guidelines, regulations and bylaws provide a certain level of protection for every single water body on Salt Spring.

What Level of Protection is Reasonable?

The next question which arises then is what is a reasonable level of protection?

When the Trust brought over Ms. Michelle Jones, who happens to be the only person in BC certified to give the Qualified Environmental Professional course which certifies professionals to conduct Riparian Area Assessments in BC, Ms. Jones stated quite clearly that, as a rule of thumb, a Streamside Protection and Enhancement Area or SPEA can be ballparked at 3 times the width of the stream in question. Mainstream restated the same rule in their report.

So, if a stream is 2 metres wide, the SPEA would be 6 metres. Ms. Jones went on to say however that the minimum SPEA would be 10 metres. However, she was speaking about stream SPEA’s not ditch SPEA’s which can be as small as 2 metres.

So, the next question is what are the sizes of our streams and ditches?

I did an analysis of all of the 17 watercourses identified on the mapping of Mainstream. The vast majority are less than 1 metre wide.

And, using that rule, only 6 locations out of the 214, or about 3%, of the streams and ditches which were measured, resulted in a SPEA greater than 10 metres.

Thus, for all intents and purposes, our current regulations clearly do provide a level of protection that is comparable to the Riparian Area Regulation.

Show me the fish.

The next question which arises is that which first came to a head on Mayne Island – that of fish presence. Are fish present in all of the watercourses which both Mainstream and Madrone have identified, or is there conclusive evidence that fish exist, or could exist, in all of the watercourses?

The majority of the fish presence data which the Trust and Mainstream have relied upon is from 1995, and is unpublished. It was never filed with the Ministry of Environment and appears nowhere in provincial records.

A review of just some of the data indicates, for example, Walker Hook Creek was reported not to contain any fish, Bullock Lake was reported not to have any fish, Big Creek was reported not to contain any fish as was Larlow Creek. No fish were reported in Ford Lake or Stowell Lake. While Weston Lake was reported as being stocked by the Province, but the lake was reported as eutrophic…in other words not suitable for fish habitat. No fish were reported in Weston Creek.

Some water bodies were found to have summer temperatures too high for fish habitat and oxygen contents too low to sustain fish.

There were missing pages of fish presence on other streams, undocumented sightings of fish, missing references, misidentification of estuary areas, and the list goes on.

In short, the data relied upon is unreliable and as a result, I submit none of it should be used in constructing any bylaw. Nor should it have been relied upon for the construction of our existing mapping in the OCP. Any layman’s review of the work would find, as I have, that it was sloppy and inaccurate.

And yet, this data is being relied upon at this moment in the consideration of new regulations.

One example.

While I haven’t had the time to do detailed research into any other watercourse other than the one that is near my own property, in that one watercourse I have found a number of inaccuracies in the Mainstream report, including the misidentification of an estuary area, mis-identification of the location of identified fish presence, and an actual natural stream missing from the mapping.

I requested source data referred to within the Mainstream report from Staff on March 20^th, now over 9 weeks ago, and in spite of efforts by Staff, they have yet to produce it for me to examine.

The proposed definition of “development” means any of the following associated with or resulting from the local government regulation or approval of residential, commercial or industrial activities or ancillary activities to the extent that they are subject to local government powers under Part 26 of the Local Government Act:

(a) removal, alteration, disruption or destruction of vegetation;

(b) disturbance of soils;

(c) construction or erection of buildings and structures;

(d) creation of nonstructural impervious or semi-impervious surfaces;

(e) flood protection works;

(f) construction of roads, trails, docks, wharves and bridges;

(g) provision and maintenance of sewer and water services;

(h) development of drainage systems;

(i) development of utility corridors;

(j) subdivision as defined in section 872 of the Local Government Act;

Don’t Do What I Do, Do What I Tell You To Do…

It is noted that the Province itself is not required to comply with any of the aforementioned activities

So, moving on for a moment to the subject of Provincially owned ditches we come to what is likely the most ridiculous aspect of the RAR as it applies to Salt Spring.

The Province’s ditches are cleaned out and scraped bare every 3 to 7 years on average. The reason for ditch cleaning is not surprising – vegetation grows in ditches and gets to the point where it is necessary to clean them to allow for proper drainage, and, to reduce or eliminate the potential for flooding. Note I said “potential for flooding” and not “flooding.” The difference is this – while the RAR allows for cleaning of private ditches in the event of an “emergency,” it does not allow cleaning for the prevention of a possible emergency. In other words, you can only clean the ditch in an emergency, and not until then.

I have just gone through a 6 years of court proceedings, involving 3 small claims actions and a Supreme Court action which were all a result of the Ministry of Transportation not cleaning their ditches, which resulted in flooding which I had been wrongfully accused of causing.

To quote the judge from the Supreme Court action “Highways’ ditches were there to carry water. The ditches needed to be maintained in order to do their job.”

Likewise ditches on private property, need to be maintained in order to do their job. The difference, should the proposed mapping be put into law, will be that while the Province can continue to clean their ditches, private property owners technically will not be allowed to go near them to remove vegetation except in the event of an emergency.

When we look at the concern over development which may impact fish habitat, I suggest the largest and most obvious concern is siltation during development. And yet the Province, the government body which enacted the RAR, has the legislative right to completely ignore it, and, does so, on a regular basis.

PS – Today road crews are conducting seal coating on the Province’s roads. Spraying oil into the environment and then covering it with sand. Where does anyone think that runoff is going to go?

Farming Is the Greatest Potential Source for Impact

The Province has also exempted farming and institutional uses from Riparian regulation.

So, in the Fulford Valley as an example, a farmer can plow up 25 acres of field, on an annual basis, with the resultant runoff flowing into Fulford Creek, and the farmer is totally exempt from the RAR.

That 25 acre footprint of disturbed soil is the equivalent of proposing over a million square feet of development…every year potentially.

But there aren’t just 25 acres of farmland in the Fulford Valley, there are hundreds of acres in the Fulford Valley, and the Cusheon Lake and St. Mary Lake watersheds, let alone all of the other smaller watersheds.

Where is the common sense logic then of, on the one hand demanding private property owners adjacent to farmland must stay 15 or 30 metres back from streams, when the Province blatantly ignores any setback on its own property, while allowing farmers to ignore setbacks on what are arguably the largest soil disturbance activities on Salt Spring…. by several magnitudes?

In short, the one-size-fits-all approach the RAR has taken does not make a lick of sense when it is applied to Salt Spring. To the Fraser or Cowichan Rivers, or even Fulford Creek, I get it. But when 97% of the creeks mapped and proposed to be protected are less than 40” wide, it defies logic, common sense, and, most importantly science.

Existing Protection Exceeds RAR

I respectfully submit that the existing protection provided in our bylaws, which are applicable to every private property owner on this island, not just 1500, provide a level of protection which not only is comparable to the RAR, but in many cases already exceeds the RAR, and arguably protects water bodies to a far higher level of protection than that afforded by the Province to its own streams and ditches within its authority, ownership and jurisdiction.

What Would Happen if the LTC Agreed with Me?

And finally, the question arises as to what would happen if the LTC decided to maintain the current level of protection contained within the OCP and Land Use Bylaws, and simply updated the accuracy of the location of the major fish bearing streams on the island, while eliminating the dozens of small ditches which are proposed to be included in the mapping?

According to other LTC’s experiences in the RAR implementation process, absolutely nothing. Mayne Island has gone so far as to have taken the RAR implementation off their agenda, and other islands, like the Penders have eliminated anything other than the major streams from their mapping. And yet, here on Salt Spring, ditches some of which are 12” wide, and have water in them for perhaps a week or two a year, are slated to become protected areas, in spite of the fact they will be scraped clean regularly.

As a result, the discretion our Trustees have in this matter is now crystal clear. (It took me over 4 years to pry from Trust Staff a written, albeit grudgingly, acknowledgement that the discretion even exists and is available to be used by the LTC in its wisdom.

So, the LTC cannot deny the discretion exists. The only is question is to what extent our Trustees will use it.

I implore them to carefully consider any proposed changes to either the OCP or the Land Use Bylaw and view any proposals coming from Staff through the filter of common sense and logic.

And while it may go without saying, I know for a fact most people don’t understand that under the Islands Trust Act, our Trustees were elected to represent the over 1500 property owners who will potentially be affected by proposed changes to our bylaws.

Take Action

If you feel you shouldn’t be saddled with bylaws which will not only cost property owners more in the long run, but, create an alarming amount of unnecessary work for Staff and the resultant detriment of taxpayers, then its time to express your opinions to the Trustees.

You can email them at ggrams@islandstrust.bc.ca and pgrove@islandstrust.bc.ca

 

It you are still reading this, thank you for taking the time to be concerned enough to care.

Set Your Own Slaves Free First

The following letter was sent to the Driftwood by Jan Slakov. My response is below.

 

Take Time to Learn About RAR

Once upon a time, people could legally own slaves, could do what they wished with another human being because that human being was their private property.

Those who tried to abolish slavery were up against a great hue and cry from people who were convinced that the British (or U.S., etc.) way of life was in jeopardy because the economy relied on the cheap labour of slaves.

Now we have a very similar struggle about whether or not owning land gives one the right to “trash” it — to clearcut it, or bulldoze it or otherwise destroy nature’s ability to nourish the great variety of life we love.

I support the RAR because I think we need the ability to prevent the kinds of “development” that have already so seriously damaged many of our streams, lakes and other wetlands.

Given that enforcement of Trust bylaws ultimately rests with the Trust’s ability to take offenders to court, which is a very labourious and expensive process, people who inadvertently cut down a tree where they shouldn’t, or plant some daffodils alongside a ditch, are not going to be taken to court. But hopefully the fact that the new regulations cover even such relatively low-impact activities will help all of us learn that everything we do, not just the big things like how we build roads, homes, stores and landscaping, but even how we grow gardens, make a difference.

If you are worried about what the RAR means, please take the time to learn from people who have been working to protect our water and environment for years before you believe those who are mainly concerned about protecting property rights. For example, the Salt Spring Water Preservation Society  (ssiwps@hotmail.com) and the Salt Spring Island Conservancy (250-538-0318) have members who have studied the bylaw and can answer questions.

JAN SLAKOV, Salt Spring

My Response

Really Jan? Comparing property owners to slave owners? This is what the debate has come to?

While it is clear the proposed over reaching, unnecessary regulations are OK with you, it is apparent they are not OK with over 70% of islanders.

When will adding yet another layer onto the layer upon layer upon layer of existing land use bylaws and regulations be enough for you?

I would love to see all of the people who agree with you covenant and then donate their property to the Islands Trust. That way you can all set yourselves free from the guilt you must be feeling in the participation of (a) the perceived destruction of the environment and (b) the free market economy.

Make sure that covenant includes a clause that any manmade structure on the property cannot be repaired, rebuilt or replaced. That way, over time, your property will revert back to nature, as you apparently wish it so.

The shining example of selflessness you will set should act as a beacon in the wilderness to those who are like minded, lighting the way to a new Salt Spring, one where only those you see as selfish property owners actually live here.

By starting this kind of a movement you won’t have to deal with the rest of us, just your own fellow left-wing, anti-capitalist, extreme environmentalists. Surely there won’t be any further debate necessary. You must all be in agreement with restoring nature through self sacrifice. How much easier could it get?

I’ll even offer to write a model covenant for your group for free. Just send me the legal description of your properties. I’d love to help you fulfill your dreams.

Who knows, maybe the rest of us will catch on eventually. On the other hand maybe we will continue to be on the vigil against those who would suggest taking away our property rights on one hand, while comparing us to slave owners on the other.

You first. Set an example.

Signs, Signs, Someone is Stealin’ the Signs

Well, I guess they are running scared, and have shown their true colours – thieves no less.

The question is WHO are “They”?

Who would want to tear down signs announcing a Public Hearing or bringing to the attention of the public proposed new regulations?

Democratically minded people or thugs and bullies?

Just one more reason to stand up and be counted next Tuesday. Don’t let THEM think they have won the day.

All they have done is to separate themselves from the 99% of Islanders who abhor such actions.

See you next Tuesday at 5:00.

Public Hearing June 21st Tuesday 5PM

Over the next week this blog will serve as a sounding board for anyone looking for information on the “Ditch Protection Bylaw.”

If you have any questions or comments, please fire away.

 

Reasons to Reason

Islands Trust dismisses Booth’s ‘RARguments’ was the headline in the Driftwood on May 18, 2011.

“The Islands Trust’s director of local planning services has dismissed a former local Trust committee member’s argument that suggests no action to implement the controversial Riparian Areas Regulation on Salt Spring is needed.

Former trustee Eric Booth argues that the island’s local Trust committee need not incorporate the Riparian Areas Regulation because he and fellow trustee Kimberly Lineger formed an opinion, in 2005, that local bylaws met and exceeded the RAR requirements.

Booth’s view that no more work is required to comply with RAR is based on Section 12 of the provincial Fish Protection Act.

“The Islands Trust’s director of local planning, David Marlor, has carefully reviewed Mr. Booth’s opinion indicating that no further work is required to comply with the provincial Riparian Areas Regulation,” wrote Linda Adams, the Islands Trust’s chief administrative officer, in response to a  question about the Trust’s position on Booth’s argument. “Mr. Marlor does not believe Salt Spring’s current bylaws comply with the Riparian Areas Regulation or that Mr. Booth’s arguments are supported by provincial legislation.”

Adams said the Trust would write a letter to Booth outlining the reasons behind its opinion and may obtain a legal opinion on the matter.”

So, here we are, May 31st, over two weeks after Ms. Adams told the Driftwood (a) I would receive a letter from the Trust “outlining the reasons behind its opinion,” and/or, (b)  the Trust “may” obtain a legal opinion on the matter.

To date, I have not received any explanation from the Trust,  I am not aware of any legal opinion contradicting my opinion, and, I have not been contacted by the Trust.

It’s easy to “dismiss” anything without reason. However, one has to question “dismissal” without rationale.

As I alluded to in my article on May 25th, the public record (in the form of all adopted minutes of the LTC from March 2005 to June 2006) supports my position (a) the LTC had considered it was compliant with the RAR, (b) there have been no resolutions made by the LTC to date to request any extension of time (beyond March 31, 2006) from MoE to be compliant with the RAR, and (c) there were no staff reports made to the LTC during that period which suggested the LTC was not already in compliance with the RAR.

According to the public record, it appears Islands Trust Staff, including senior management,  (a) may have made a number of erroneous recommendations to Trustees, (b) improperly exercised authority beyond their legislative abilities, (c) failed to understand the FPA and the RAR do not apply to the “Islands Trust,” or the “Islands Trust Council,” (d) failed to properly inform “Local Trust Committees” that only the LTC’s have the authority (under the FPA and RAR) to decide whether their existing bylaws meet FPA and RAR requirements, (d) consistently misled LTC’s regarding options available to them, (e) have misled riparian area development applicants since 2006, (f) have been aware of major riparian are mapping irregularities for a number of years, but failed to bring to the LTC’s attention the magnitude of the irregularities, (g) forwarded inaccurate and/or improper mapping to one or more Qualified Environmental Professionals in the past 5 years, and (h) continue to mislead the public during the current proposed OCP amendments.

Further, the government biologist whom Trust staff have relied on for RAR information, Ms. Marlene Caskey, Ministry of Environment, misled Island Trust Staff, starting in September 2007, by telling them the RAR applied to certain island projects, when in fact it did not. She did this in spite of having previously told Ms. Kathy Reimer that while the Islands Trust had a policy which said developers should do a Riparian Area Assessment, the Trust could not force someone to comply. For two and half years Ms. Caskey continued to falsely pretend to the Trust that she/MOE had the authority to require that development on Salt Spring comply with the Riparian Area Regulation. Her efforts were only brought to a swift halt after I lodged a complaint with the Deputy Minister of the Ministry of Environment.

As I stated in my May 25th article, and as senior MoE staff members confirmed, Ms. Caskey has no authority in this matter.

It is now nearly two months since I challenged the LTC with my opinion that Salt Spring does not have to change its riparian protection. During that time Ms. Adams, and evidently Mr. Marlor, have made statements which they have no authority to make. They cannot retroactively change the opinion held by the local government of 2002-2005.  They cannot disagree with an opinion formed at that time without providing at least a logical rationale.

They can however use diversionary tactics and spin-doctoring in an effort to “dismiss” valid opinions without reason.  Stay tuned.

UPDATE – JUNE 15th – I have still not received anything in writing from David Marlor or Linda Adams. Given the Public Hearing is now less than a week away……

Watch Your Nose Maxine

The Salt Spring Water Preservation’s Maxine Leichter evidently has no problem in ignoring facts or spreading mistruths in her quest to have the Riparian Areas law passed before anyone really knows what hit them.

Take for example the following quote from the Fall 2010 Water Preservation Society Newsletter: (see http://www.ssiwaterpreservationsociety.ca/uploads/1/4/6/9/1469534/wps_fall_nov_2010_newsletter_final.pdf  –  Easily the longest URL I’ve seen in awhile)

“RAR regulations would provide protection within 30 metres of our lakes and the streams leading to them. Current SSI regulations only cover 10 metres around lakes and a few streams. Most SSI streams have no protection. RAR does not prohibit activity within these areas, but only requires that activities not harm fish habitat, including prevention of erosion into water bodies.” – Maxine Leichter

Excuse me, but:

1. Current SSI regulations cover 10 metres on either side of all major fish bearing streams on SSI (not just a “few”) of which there are over 20.  Look at Map 21  (see http://www.islandstrust.bc.ca/ltc/ss/pdf/ssbylbaseocp0434map21.pdf )

2. Contrary to Maxine’s claim, current SSI regulations cover 300 metres (not 10 metres) around Maxwell Lake

3. Contrary to Maxine’s claim, current SSI regulations cover 61 metres (not 10 metres) around other lakes.

4.  Contrary to Maxine’s claim, most SSI streams do have protection already.

5. Contrary to Maxine’s claim, if enacted, and according to Michele Jones, the only certified trainer of Qualified Environmental Professionals in BC, the proposed riparian law WILL prohibit activity likely within 10 metres of any major stream and within 2 – 5 metres of any ditch in the proposed riparian development permit area covering 60% of the island.

Please, don’t believe me without checking on the existing and proposed bylaws yourself, BUT, please don’t believe Maxine without doing the same.

My nose hasn’t grown a millimeter during the RAR debate, but, you may need the 30 metre measuring tape which George Ehring referred to last week to measure others’ facial protuberances these days.

Eric

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How Far Could RAR Go?

When you have a few minutes:

1. Check out the video at:  http://capr.us/KING/king_MVvideo.php    by the Citizens for Alliance for Property Rights in King County, just south of the border.

While you’re watching it, in your mind:

(a)  Exchange “May Valley Swamp” for the drainage ditch in front of, behind, or through your property,

(b) Exchange the costs associated with ditch and creek projects, with the potential cost of any restrictions or requirements imposed by the proposed RAR law.

2. Then, reread the proposed RAR law the Trustees are trying to ram through.

3. Then, given the degree to which the proposed law goes, ask yourself – could this actually happen here?

Just before you answer that question, revisit the Official Community Plan and reread the “Precautionary Principle” section inserted in 2008.

Not only could the kind of bureaucratic and government interference experienced by citizens a couple of hundred miles south of us happen here…it IS happening here.

Finally, if you currently have a drainage ditch on your property, ask yourself what will happen with it in 5 years from now when you can’t clean it out because it has been protected by a Streamside and Protection and Enhancement Area (SPEA)?

And, don’t believe for a moment this is not the direction we’re headed in.

The Ehring Proposition – Accurate Mapping a Waste of Money

“The only thing more dangerous than ignorance is arrogance.” – Albert Einstein

Einstein knew a “corollary” was the reasoning involved in drawing a conclusion, or making a logical judgment, on the basis of circumstantial evidence and prior conclusions rather than on the basis of direct observation.

Trustee Ehring, at the April 28th RAR Information meeting, in response to a call from members of the public for accurate riparian mapping, offered the following proposition – that accurate mapping of riparian areas on Salt Spring is a waste of time and money because, hey,  if you want to know if you are going to be within the new Riparian development permit area, all you have to do is get out a 30 metre tape measure, walk out to the stream or ditch near or on your property and measure for yourself.

Perhaps Mr. Ehring was reading my blog a couple of weeks ago when I suggested property owners should get a 100 foot measuring tape to see how their property was going to be impacted.  (see – https://islandstrust.wordpress.com/2011/04/10/how-the-proposed-riparian-area-mapping-will-affect-your-property/ )

However, the differences between my blog recommendations and the Ehring Proposition are not just metric vs imperial in measurement.

First, let’s look at what Mr. Ehring is actually saying – accurate mapping is a waste of time and money.

If that proposition is true, then the corollary follows that all of the accurate mapping, which has been done on the other islands (e.g. North Pender, South Pender, Mayne, Saturna, etc.), and which:

1. was recommended by Islands Trust staff,  and
2. was requested by the Trustees of the other islands, and
3. funding for which was approved by Islands Trust Council, including by Trustee Ehring, and
4. 40% of which was paid for by Salt Spring taxpayers,

was unnecessary, and a waste of time and money.

David Marlor, Director of Local Planning Services, and the former Regional Planning Manager for the Southern Gulf Islands, has gone on public record less than a month ago as supporting and recommending “accurate mapping.” Other Islands Trust planners evidently agree.

The common sense conclusion, upon examination of the corollary is proof that Mr. Ehring’s Proposition fails miserably.

The Real Unanswered Question

However, the real underlying question, remains unanswered.

That question is born out of the “North Pender Conundrum”

One of the major considerations of accurately identifying streams on other islands was to reduce the potential size of the riparian development permit areas.

Witness for yourself the difference accurate mapping makes. The “Pink Areas” are the MoE Riparian Area Watersheds, and the “Black Areas” are the North Pender/Islands Trust approved Riparian development permit area based on accurate mapping by Madrone Environmental Services:

Any ditch or stream or creek outside the “Black Area” is not a development permit area.

Now, look at the Ministry of Environment’s Riparian Area Watershed areas on Salt Spring in green, being proposed as a development permit area:

When Is a Ditch Not a Ditch Under RAR?

The North Pender Conundrum is a graphic example of a local government using its discretionary powers under Section 12 of the Fish Protection Act of BC.

Under Section 12 (4) (b) of the Fish Protection Act, a local government may form an opinion as to whether the level of protection their bylaws, established to protect fish habitat, are “comparable to” those established under the Riparian Area Regulation.

“If a policy directive…applies, a local government must (a) include in its zoning and rural land use bylaws riparian area protection provisions in accordance with the directive, or (b) ensure that its bylaws and permits under Part 26 of the Municipal Act…provide a level of protection that, in the opinion of the local government, is comparable to…that established by the directive.”

The most important word in that section is the word “or” in between subsection (a) and (b).

When I read out this section at the meeting, it was apparent Planner Kris Nichols was not familiar with it.

Further, when I asked him if he had read the opinion which I had provided to the LTC on April 7th, which states the LTC has been in compliance with the RAR since 2005, he said, “I believe I have…I think I have.” When I asked him if he had formed an opinion on that opinion, he said he would have to read it again, and that he had not formed an opinion on it.

What? Is anyone to actually believe a professional planner can read a detailed, 9 page opinion, on a singular question, which is critical to the basis of whether any changes need to be made to conform with the RAR, without forming some kind of opinion? The very basis of the opinion is in complete contradiction to Mr. Nichol’s oft-stated opinion  that the Salt Spring LTC has no choice but to change our bylaws.

Surely any professional planner who received a well reasoned, historically correct opinion, quoting applicable legislation verbatim, which contradicts what he has been saying for four months, the planner would be interested enough to read it thoroughly and form an opinion, or at least, to further investigate the facts upon which the opinion was formed.

This is further proof the public process leading up to the public hearing is misleading. No one appears to be doing their homework assignments.

North Pender’s LTC has deemed that, in their opinion, the level of protection which they are implementing into their local laws is “comparable to” that established by the RAR directive. On North Pender ditches outside of the “Black Areas” shown above, are not “streams,” while ditches inside the “Black Areas” are streams.

And, therein graphically lies the difference to property owners. It’s as clear as black and green.

On North Pender –  Black

On Salt Spring – Green

For Trustee Ehring to blithely propose accurate mapping won’t change anything, and would be a waste of time and money, begs many questions, not the least of which regards his comprehension of basic concepts such as magnitude, cause and effect, and the relation between expanded RAR areas and the resulting, and unnecessary impact on property owners.

The North Pender Conundrum

This is the first in a series of articles dissecting the RAR Community Information meeting held April 28, 2011.

For months now we have been told by the contract planner tasked with preparing and authoring the proposed Riparian Area bylaw for Salt Spring, that we must “meet or beat” the Riparian Area Regulation requirements. To that end, we have been told that every ditch, which is connected by surface flow, whether it contains water or not, must be included within the new Riparian Assessment Area. In other words, highways ditches within the Ministry of Environment Riparian Area Watersheds (“MoE RAW”) (identified by the Ministry of Environment and a group of students from the University of BC – and the subject of my next post) are to be declared “streams” under the proposed definition of “streams” in the proposed bylaw.

The public has been told in no uncertain terms the Local Trust Committee “doesn’t have a choice” – it must comply with the RAR.

Enter the North Pender Conundrum.

Unlike the approach taken by the contract planner on Salt Spring, the Islands Trust planner and LTC on North Pender have taken a different stand. Having applied for, and received funding from the Islands Trust Council to obtain accurate mapping (approximately $10,000, 40% of which was paid for by Salt Spring taxpayers) from Madrone Enviromental Services (see full report at http://www.islandstrust.bc.ca/ltc/np/pdf/nprarstreamrpt.pdf ), Trust staff in Victoria then prepared mapping which reduced the MoE RAW, which covered a good portion of North Pender, down to three major stream and lake areas, and one wetland. A 4 page bylaw was prepared and attached to the simplified mapping, North Pender LTC gave it 1st, 2nd and 3rd readings, and, on April 19th approval was given by the Islands Trust Executive.

The conundrum? The mapping and bylaw, approved by staff, the LTC and the Islands Trust Executive, does not protect “ditches” as defined in the RAR.

This completely blows apart any contention from Islands Trust staff, the contract planner or the Salt Spring Trustees that we don’t have a choice, and, “must protect ditches” as defined in the RAR.

I brought the conundrum up at the Community Information Meeting, and not a single staff member or Trustee had an intelligent and/or informed response to it.

Amazingly, Trustee Peter Luckham of Thetis Island, who chaired the meeting, and, who is one of the four Islands Trust Executive Committee Vice-Chairs who had passed the North Pender bylaw last week, also could not give a response. Evidently the Trust Executive hadn’t given the question a moment’s thought before approving it. So much for “having to comply” with RAR definitions.

As I have been saying for awhile not, it is now crystal clear the public is being misled on a number of issues, not the least of which is the “necessity” to blanket 60% of Salt Spring with a development permit area.

It is not good enough to simply ignore the North Pender Conundrum as if it does not exist. Trustees and staff need to provide the public with a clear response to it before making one more public statement about how wonderful, unobtrusive and convenient they “hope” the proposed bylaw will be for property owners within the proposed DP area.

Next post – “Accuracy? We Don’t Need No Stinking Accuracy”

Truth or Consequence?

All truths are easy to understand once they are discovered; the point is to discover them. – Galileo

Ignoring the real question, and pointing in an irrelevant direction, appears to be Ms. Adam’s defense to my opinion Salt Spring is already in compliance with the Fish Protection Act, and therefore the Riparian Area Regulation. (see http://www.bclocalnews.com/vancouver_island_south/saltspringislanddriftwood/opinion/letters/120786554.html )

At least she has now admitted she was wrong as to when the RAR was enacted. However, what she still does not evidently understand is that when a policy directive from the Province is “enacted” it means it is effectively “implemented” immediately, and, sets a compliance date by which local governments must comply with the directive.

Thus, when she responded today that the RAR was “implemented in 2006” she is once again wrong.

Further, there are two ways local governments can comply with a policy directive under the Fish Protection Act (FPA). While my opinion (see https://islandstrust.files.wordpress.com/2011/04/rar-opinion-april-71.pdf ) clearly details the how and why, Ms. Adams has clearly chosen to completely ignore the following legislation:

From the FPA: “12 (4) If a policy directive…applies, a local government must (a) include in its zoning and rural land use bylaws riparian area protection provisions in accordance with the directive, or (b) ensure that its bylaws and permits under Part 26 of the Municipal Act…provide a level of protection that, in the opinion of the local government, is comparable to…that established by the directive.”

Perhaps Ms. Adams does not understand what the word “or” between subsections (a) and (b) means.

Or, perhaps she doesn’t understand what the term “in the opinion of the local government” means.

Or perhaps she doesn’t understand what “a level of protection…comparable to that established by the directive” means.

Or, maybe she doesn’t want to try and understand what Section 12 in its entirety means, because then, whether she liked it or not, she would have to agree with me.

The 2008 letter from Ms. Marlene Caskey, MoE, which Ms. Adams referred to this week, did not, and does not, in any manner, address the provisions of Section 12. Nor does it address the Transitional provisions of Section 8 of the RAR. All the letter said was that in Ms. Caskey’s opinion, Salt Spring had not yet implemented RAR.

Ms. Caskey did not, then, or at anytime after, offer an opinion on whether the Salt Spring LTC may be compliant because of Section 12. She has never asked myself or former Trustee Lineger what our opinion was in 2005. Nor does she have the authority to deem whether a local government’s opinion is valid or not. That is a task, at best, for the Attorney General’s office, and, I can assure you no such determination has ever been made, let alone even considered.

Section 12 allows a local government flexibility. Read it again until you understand it. The Province, in including Section 12, made the conscious decision to allow a local government to form a flexible independent opinion. That opinion, once formed, cannot be arbitrarily questioned or overturned by MoE or Islands Trust bureaucrats.

It could however be questioned in a court of law. But, what would be the allegation? That the opinion formed by the local government was not “reasonable?”

How would one go about trying to prove that case, and how would it play out in the media?

In an email to me, Ms. Stacey Wilkerson, Habitat Management, the branch of the MoE in charge of the Riparian Area Regulation, believes there “must be a rational basis for the local government to conclude that its bylaws and permits provide a level of protection for riparian areas that is comparable to…that established by the directive.”

I wholeheartedly agree. And, on March 7, 2005, in both myself and Trustee Lineger’s opinion, there was a rational basis to conclude that our bylaws and permits provided a comparable level of protection. I have, in detail, provided that rationale to the Trust. Read it until you understand it.

Why Ms. Adams consistently fails to (a) understand the relevant legislation, (b) understand how the legislation allowed us to form our opinion, and (c) understand how that opinion, once formed, enabled the SSI LTC in 2005 to be in compliance with the Fish Protection Act, remains a mystery to me.

Another mystery is why Ms. Adams is speaking out on behalf of the local government. She is not a locally elected politician. She is not a member of the local government. The Islands Trust is not a local government under the FPA, the Local Trust Committee is. She has no authority in this matter, and, her opinion has no sway or say over what Trustee Lineger and I thought in 2005.

However, for a Chief Administrative Officer of a government agency, to continue to evade a question which is extremely relevant to the public’s opinion forming process, during the amendment to our OCP, is misleading, disingenuous and, could very easily form the basis for a court challenge in the future.

I once again challenge her to provide an opinion, legal or otherwise, which rationally contradicts the actual content of my claim. Until she does so, I will continue to alert the public that they are being grossly misled during a public process which statutorily requires the public to be properly informed.

I also challenge any of our three trustees to do the right thing and request a legal opinion to refute my claim. It is entirely within their right, ability and power to do so. All they have to do is ask.

How on earth could they possibly pass up an opportunity to try and prove me wrong?

Then again, perhaps the question they are asking themselves is this  “Why would we potentially want to prove Booth right, if it will interfere with our current agenda of blanketing the majority of the island in a development permit area?”

C’mon Ms. Adams. Give us a real argument, instead of thinly veiled misdirection, because frankly we’re tired of cheap tricks and deceptions.