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Protecting fish habitat—Forestry practices in British Columbia

Petition

Attachment

Office of the Auditor General of Canada
and the Commissioner of the Environment and Sustainable Development
Attention: Petitions
240 Sparks Street
Ottawa, Ontario
K1A 0G6
Via facsimile: (613) 941-8286

March 13, 2002

To Whom It May Concern:

Please accept this environmental petition under the Auditor General Act.

This petition meets the three criteria for petitions. First, it is "an environmental matter in the context of sustainable development" in that it concerns the protection of salmon habitat in British Columbia. Second, the subject of the petition is the responsibility of two of the federal departments bound by the process, namely the responsibility of Fisheries and Oceans Canada (FOC) and Environment Canada under the Fisheries Act. Finally, this petition is submitted by a Canadian resident or entity, on behalf of the NRDC Environmental Education Society, incorporated under the British Columbia Society Act.

NRDC requests clear and directly pertinent responses to three requests to Minister Robert Thibault and Minister David Anderson. Before posing those requests, however, some background is necessary.

In February, 2000, Donna Petrachenko, then Regional Director General of FOC's Pacific Region, issued a letter to the B.C. Ministry of Forests (MoF) and to the BC forest industry regarding the failure to protect small salmon and feeder streams in BC's forests. The letter invoked the Fisheries Act to ask that tree retention levels "approaching 100 percent" be instituted in 20-30 metre zones around such streams (see attached).

Up to this point, FOC had been relying on the BC Forest Practices Code ("the Code") to provide rules for BC forest companies follow to meet the habitat requirements of Section 35 of the Fisheries Act. But, while Section 35 is clear that all fish habitat must be protected, the Code provides no mandatory protection for BC's numerous small fish and feeder streams that nonetheless fall squarely within the Fisheries Act Section 34(1) definition of "habitat."

The FOC February 2000 letter followed a FOC 1997 report entitled, "Establishing Fisheries Management and Reserve Zones in Settlement Areas of Coastal British Columbia." The report contained a review of the latest science on stream buffers—rural or urban—and recommended 50 metre buffers for all fish-bearing permanent streams, and 30 metre buffers on all ephemeral and intermittent streams¹.

¹The report also outlined the latest science on the relationship between stream buffers and water quality, including sedimentation prevention. Section 36 of the Fisheries Act deals with sedimentation and is enforced by Environment Canada, which is why this petition is also addressed to that Ministry.

Such science is consistent with the small stream protection provisions of jurisdictions surrounding BC to the North and South. The following diagram provides a quick comparison of these standards:

The need for the FOC February 2000 steam buffer guidelines was also outlined by FOC field staff at a 1999 MacMillan Bloedel workshop where a FOC staff member said "If you look at the small streams that are harvested under the Forest Practices Code, they are no longer ecosystems."

Following the February 2000 letter, correspondence between BC MoF officials obtained under the Freedom of Information and Privacy Act of British Columbia show MoF officials working with the BC forest industry to attempt to "pull DFO back into the Code environment" so that there is no new "standard of practice that must be taken to avoid contravention." FOC agreed to further talks and joint studies with MoF.

Meanwhile, attempts by FOC field staff to implement small stream buffer guidelines stipulated in the February 2000 letter have been rejected by the BC government and industry. For example, FOC field staff in both Campbell River and Prince Rupert submitted feedback in June and November 2000 respectively, to proposed logging plans, indicating that the plans did not meet the February 2000 small stream buffer guidelines. Western Forest Products rejected the FOC input out of the Campbell River FOC office, and MoF rejected the FOC input out of the Prince Rupert FOC office.

In July 2001, NRDC released a stream management briefing based on publicly available logging plans to account for the degree to which BC forest companies were following FOC's February 2000 small stream guidelines. Only 8 out of 231 small streams met the requirements. Of 231 small streams, 47.6 percent were clearcut to the banks. Only 24.2 percent of small streams had protections against the damaging practice of falling and yarding across them.

Today, a full two years after the FOC February 2000 letter, not a single enforcement measure has been taken by FOC or Environment Canada to ensure compliance with the greater small stream protections. At meetings between NRDC and FOC, FOC staff talk instead about a "collaborative" approach with MoF, but can point to no evidence that greater small stream protections have been achieved. On the contrary, publicly available logging plans continue to be submitted that afford no protection for small fish and feeder streams, and timber supply analyses continue to be generated that do not account sufficiently for the necessary small stream protections. Finally, a leaked copy of the upcoming Code revision includes no improved small stream protections.

In sum, despite having taken a substantive position on necessary small stream protections in BC's forests, FOC and Environment Canada are failing to carry out their legislative responsibilities under the Fisheries Act by either prosecuting violations under Sections 35 or 36, or else by promulgating habitat regulations under Sections 35, 36, and/or 37.

NRDC therefore has three specific requests to Minister Robert Thibault and Minister David Anderson that we would like clear and pertinent responses to:

1. Please provide a specific and full accounting of the efforts of FOC field staff in BC to have MoF and the BC forest industry implement the February 2000 small stream protections (such as those of Chris Picard in Prince Rupert, and Mike Austin in Campbell River), and an accounting of the specific responses that they received.
2. With specific reference to the FOC definition of "productive capacity," and with specific reference to the latest scientific knowledge about riparian zones, please outline how FOC's official habitat policy's over-riding objective to "increase the productive capacity of habitats for the nation's fisheries" should be implemented in relation to small stream management in BC.
3. Should MoF and BC logging companies continue to refuse to implement the February 2000 small stream protections, please outline the steps that FOC and Environment Canada will take - together with a timetable - to uphold Fisheries Act habitat provisions (including sedimentation prevention) so that BC and Canada do not continue to lag behind other jurisdictions in efforts to protect the habitat of small fish and feeder streams.

Thank you in advance for your attention to this important matter.

Yours sincerely,

[Original signed by Matt Price]

Matt Price
Research Associate

[Natural Resources Defence Council Environmental Education Society]
620 View Street, Suite 619
Victoria, BC V8W 1J6]

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Attachment

February 28, 2000

File Number: 8440-01

Mr. Lee Doney, Deputy Minister
Ministry of Forests
P.O. Box 9525 Stn Prov Govt
Victoria, British Columbia
V8W 9C3

Dear Mr. Doney:

Re: Fisheries Act Implications of Logging Adjacent to Small Streams

I am writing to you to express the Department's concerns regarding current logging practices adjacent to small fish-bearing streams and direct tributaries to fish-bearing streams. The integrity of these streams, identified variously as S4, S5 and S6 streams under the Forest Practices Code, is critical to the long-term health of our salmonid and freshwater fisheries. My staff informs me that current logging practices in this province rarely provide riparian leaves strips or setbacks that adequately protect these streams.

Given the current practice and the importance of such streams, we wish to confirm that the federal Fisheries Act, and specifically the requirements not to harm fish habitat or deposit deleterious substances into fish-bearing waters, continue to apply to the practice of logging adjacent to small streams in this province.

A letter (copy attached) from regional staff of Fisheries and Oceans Canada will be sent to the District Managers of the Ministry of Forests outlining interim standards that we deem acceptable to meet fish habitat objectives. In the longer run, we believe that a review of the riparian provisions of the Forest Practices Code is required.

We continue to be committed to working with your ministry to ensure the public objectives of the protection of fish habitat are achieved. To this end, we would be pleased to meet with you to discuss our concerns further.

Yours sincerely,

[Original signed by D.M. Petrachenko]

D.M. Petrachenko
Director General, Pacific Region

DRAFT

District Manager, Ministry of Forests

I am writing to you to express my department's concerns regarding current logging practices adjacent to small fish-bearing streams and direct tributaries to fish-bearing streams. The integrity of these streams, identified variously as S4, S5 and S6 streams under the Forest Practices Code, is critical to the long-term health of our salmonid and freshwater fisheries. My staff informs me that current logging practices in this province rarely provide riparian leave strips or harvesting reserves that adequately protect these streams.

Given the current practice, and the importance of such streams, we wish to confirm that the federal Fisheries Act, and specifically the requirements not to harm fish habitat or deposit deleterious substances into fish-bearing streams, continue to apply to the practice of logging adjacent to small streams in this province.

The following interim standards are considered acceptable to meet fish habitat management objectives without requiring regulatory amendment of the Forest Practices Code of BC Act.

1. The riparian management zone of S4 fish-bearing streams must have retention levels approaching 100% retention. Any proposed variation of this retention rate must be supported by an ecological rationale acceptable to Fisheries and Oceans Canada. Justification must be size specific.
2. The riparian management zone of S5 and S6 streams that are direct tributaries to fish-bearing streams must have retention levels approaching 100% retention. Any harvesting within the riparian management zone on such streams must be supported by a size-specific ecological and operational justification. Riparian management zones for other S5 and S6 streams should be managed as per the Best Management Practices set out in the Riparian Management Area Guidebook. We trust that the foregoing will be considered in the process for approval of Silvicultural Prescriptions.
3. In areas where there is a high wind throw hazard wider riparian management zones may be required unless alternative wind throw management measures can be shown to be effective. The wider management zone should be designed spatially to match the specific vegetation, topographic, and surficial material characteristics of the site and consist of retention proportion aimed at protecting the "target" riparian vegetation zone from wind damage. Where trees do blow down across the stream channel they should be left in place to provide future large woody debris to the channel.

We continue to be committed to working with your ministry to ensure the public objectives of the protection of fish habitat are achieved. To this end we would be pleased to meet with you to discuss our concerns further.

Area Chief
Habitat and Enhancement Branch

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Minister's Response: Environment Canada

August 8, 2002

Mr. Matt Price
Research Associate
Natural Resources Defense Council
Environmental Education Society
620 View Street, Suite 619
Victoria, British Columbia
V8W 1J6

Dear Mr. Price:

The Office of the Auditor General and the Commissioner of the Environment and Sustainable Development has forwarded to me your petition, received at Environment Canada on April 10 (petition #49), regarding the need for riparian protection of small streams in British Columbia from the effects of logging.

The situation, as you describe it in your petition, is essentially a fish habitat issue under the Fisheries Act. Section 35 of the Act prohibits the harmful alteration and destruction of fish habitat, whereas section 36 prohibits the deposit of deleterious substances in waters frequented by fish. Although the administration of subsection 36(3) of the Fisheries Act with respect to many types of deleterious substances is the responsibility of Environment Canada, activities such as logging and highway construction, resulting in the deposit of inorganic sediments, are usually dealt with by Fisheries and Oceans Canada as part of its responsibility to protect fish habitat. A Regional Working Agreement, signed in 1987 by Environment Canada and Fisheries and Oceans Canada, sets out this separation of responsibilities in the Pacific and Yukon Region.

I share your concern, and I support your efforts to protect small streams and the British Columbia salmon population.

Yours sincerely,

[Original signed by David Anderson, Minister of the Environment]

David Anderson, P.C., M.P.

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Minister's Response: Fisheries and Oceans Canada

August 27, 2002

Mr. Matt Price
Natural Resources Defense Council
Environmental Education Society
Suite 619, 620 View Street
Victoria, British Columbia
V8W 1J6

Dear Mr. Price:

This is in response to your petition dated March 13, 2002, regarding the protection of fish habitat in British Columbia. Ms. Johanne Gélinas, Commissioner of the Environment and Sustainable Development, forwarded your petition to my office on April 2, 2002.

In your letter, you requested that Fisheries and Oceans Canada provide you with a full accounting of the departmental efforts to have the British Columbia Ministry of Forests and the forest industry to implement the February 2000 small stream protection standards. You also asked how the habitat policy objective should be implemented in relation to small stream management in British Columbia. In your last question, you requested an outline of the steps the Department will take, together with a timetable, to protect the habitat of small fish and feeder streams. The attached document provides a detailed response to these three questions.

Thank you for your continuing efforts to protect fish and fish habitat.

Yours truly,

[Original signed by Robert G. Thibault, Minister of Fisheries and Oceans]

Robert G. Thibault

Petition #49
Natural Resources Defense Council Environmental Education Society

Question # 1—"Please provide a specific and full accounting of the efforts of Fisheries and Oceans Canada field staff in British Columbia to have Ministry of Forests and the British Columbia forest industry implement the February 2000 small stream protections, and an accounting of the specific responses that they received."

In February 2000, Fisheries and Oceans Canada wrote to the Ministry of Forests outlining concern over the management of small fish-bearing streams and direct tributaries to fish bearing streams. The purpose of the letter was to inform the Ministry of Forests of the legal requirements to protect fish and fish habitat under the federal Fisheries Act and specify the acceptable riparian protection standards.

A key element contained in the letter was the requirement for an ecological and operational rationale for harvesting within the riparian management area of these stream channels. This ecological and operational rationale was to be contained in the Silviculture Prescription.

The implementation of the riparian protection standards and the development of a clear understanding of the requirements for an ecological and operational rationale have been discussed with various levels of government and industry. Efforts have been made to define the scope of the issue through the provincial Joint Management Committee of the Forest Practices Code and to seek appropriate means to address the issues of Fisheries and Oceans Canada.

At the field level, the types of activities undertaken by Fisheries and Oceans Canada include:

• The review of forest development plans;
• The request for and participation in watershed assessments;
• The request for and review of site level plans;
• the assessment and monitoring of operational activities around streams; and
• scientific research.

At the forest development planning stage, my Department has communicated the requirements for small stream riparian retention when there is no ecological or operational rationale. In response, forest licensees have requested site-specific information to specify locations where forest development activities may impact fish and fish habitat.

Existing watershed assessments, and detailed channel and fish inventories have aided in identifying these locations. Where there has been insufficient stream and fish inventory information, further assessments have been requested by Fisheries and Oceans Canada. Site visits conducted jointly with forest licensees, fisheries and forestry agencies have been undertaken to identify and resolve the areas of concern. Where sensitive habitats have been identified, forest licensees were requested to adjust cut-block boundaries.

Fisheries and Oceans Canada has requested that watershed assessments be conducted prior to any forest development activities being undertaken where there are important fisheries values. These assessments have assisted in identifying important terrain, channel and riparian features that require specific management actions to protect stream channels and fish habitat. The Department will continue this practice in areas with important fisheries values.

Efforts are increasingly being made to assess and monitor operational activities to determine compliance to forest development plans and to determine the effectiveness of practices in protecting fish and fish habitat. One study has been completed in the Southern Interior of British Columbia. A second assessment is currently being undertaken on the North Coast of British Columbia.

Finally, Fisheries and Oceans Canada is undertaking a multi-year scientific research project to provide better scientific understanding of the interaction between riparian areas and small fish-bearing streams. The overall purpose of this research is to assess the effectiveness of zone management for protecting small stream fish habitat. The information will feed into the management of the riparian retention requirements for small fish-bearing streams.

Question # 2—"With specific reference to Fisheries and Oceans Canada definition of "production capacity", and with specific reference to the latest scientific knowledge about riparian zone, please outline how Fisheries and Oceans Canada's official habitat policy's over-riding objective to "increase the productive capacity of habitats for the nation's fisheries" should be implemented in relation to small stream management in British Columbia."

The long-term policy objective of Fisheries and Oceans Canada is the achievement of an overall net gain of the productive capacity of fish habitats. Progress towards this objective is achieved through the active conservation of the current productive capacity of fish habitat, the restoration of damaged fish habitat, and the development of fish habitat. The strategies implemented under the Policy for the Management of Fish Habitat are an integral part of the delivery mechanism, including protection and compliance, integrated resource planning, research, community outreach, stewardship and information management.

Over the past few years, the Department has and continues to clarify policy and procedures for governmental agency staff, industry and the public. Thus, to achieve the objective of effectively managing fish habitat, specifically with respect to small stream management in British Columbia, the Department has:

a) defined and communicated to the forest industry how to maintain the maximum natural capability of habitat to produce fish;
b) sought cooperation and agreement from provincial agencies; and
c) increased effectiveness and compliance monitoring, and scientific research initiatives.

Question # 3—"Should Ministry of Forests and British Columbia logging companies continue to refuse to implement the February 2000 small stream protections, please outline the steps that Fisheries and Oceans Canada will take—together with a timetable—to uphold Fisheries Act habitat provisions so that British Columbia and Canada do not continue to lag behind other jurisdictions in efforts to protect the habitat of small fish and feeder streams."

Fisheries and Oceans Canada has the authority under the Fisheries Act to investigate and, where merited, to take enforcement actions. In the eventuality that the forest licensees decline to follow the departmental advice and the forest development activities result in the harmful alteration, disruption or destruction of fish habitat (under Section 35(1) of the Act) or in the deposition of substances harmful to fish (under Section 36(3) of the Act), the Department will take the necessary action in accordance with the Act.

The current steps consist in identifying to forest licensees the areas where forest development activities may impact fish and fish habitat at specific sites. In cases where the operational plans lack details on how fish and fish habitats are to be protected during forest development activities, Fisheries and Oceans Canada communicates its concerns to the forest licensees who are accountable to take the necessary corrective measures.

There is no immediate plan to alter the current procedure for forest development plan review. However, the proposed changes to British Columbia forest legislation will require an examination of the current involvement in the forest development review process.