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.