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Follow-up petition on a housing development near Mission, British Columbia

Petition

Contact Information:
Name of petitioner: [personal information witheld at the petitioner’s request]
Address of petitioner: [personal information witheld at the petitioner’s request]
Telephone number: [personal information witheld at the petitioner’s request]
Email address: [personal information witheld at the petitioner’s request]
Name of group: [personal information witheld at the petitioner’s request]

I hereby submit this petition to the Auditor General of Canada under section 22 of the Auditor General Act.

Signature of petitioner: [Original signed by petitioner] Date: July 15 2010

Title of petition: Termination of CEAA for Silvermere island housing development.

Attachments:

1. Ministry of Water, Land and Air Protection report Sept. 10, 2003.*
2. DFO letter to Geoff Croll, Genstar Feb. 17, 2004*
3. District of Mission variance request for development application R02-003, Silvermere Lake/Silvermere Island Jan. 10, 2010*

Petitions Manager
Commissioner of the Environment and Sustainable Development
Office of the Auditor General of Canada
240 Sparks Street, Ottawa K1A 0G6

Dear Ms. Aird,

I wish to submit a follow-up petition under section 22 of the Auditor General Act. Please include my previous petitions 122 A-D as background material.

Thank you for this opportunity to ensure that the high environmental values of this unique ecosystem are protected.

Sincerely,

[personal information witheld at the petitioner’s request]

Background Information

The Silvermere Island and lower Stave River ecosystem comprises exceptional, rare, and bio-diverse ecological communities and habitats within the lower mainland. Five species of salmon rely on this area for spawning habitat including endangered Fraser River Sockeye, Coho, Spring, Chum, and Chinook. The Stave river estuary is one of a few, if not the single largest, spawning concentrations of salmon along the Pacific coast of North America already in direct proximity to an urban environment. This character makes this 3 or 4 km long ecosystem unprecedented for its kind. Furthermore, despite its extraordinary fisheries values, the lower Stave River basin also has numerous other biological and ecosystem features (aquatic, riparian, terrestrial, upland) that make it exceptional and these are be intimately connected to the marine-derived nutrients supplied by the salmon carcasses. The developer’s impact assessment submitted by Pottinger Gaherty December 2006 entitled Environmental Impact Assessment Silvermere Development, Mission, BC concluded, “Almost the entire site possesses the potential to contain blue-listed plant communities…” “Wildlife surveys identified 113 animal species, including several species of conservation concern: red legged frog (observed in 1999), painted turtle, bald eagle (in particular an active nest), barn owl, western screech owl (unconfirmed owl pellets in 1999), double crested cormorant, and great blue heron”.

On Oct. 29, 2004, in response to my previous petition I was advised by Minister Stephane Dion that any authorizations or approvals required for this development that would trigger a review under the Canadian Environmental Assessment Act would need to ensure an environmental assessment is conducted. Minister Dion also stated that to meet the requirements of the Species at Risk Act, the assessment would need to identify any adverse effects of the project on listed wildlife and its critical habitat. On July 13, 2006 I received similar assurances from Minister Rona Ambrose that an environmental assessment pursuant to the Act would include a thorough consideration of all of the potential environmental effects of the project including any potential adverse effects to aquatic, terrestrial and avian communities associated with the construction and/or operation of roads and other residential services such as construction and operation of a domestic water supply. On Aug. 2, 2007, I was advised by Minister John Baird , P.C., M.P. that the CEAA screening assessment had been put on hold while Genstar revised material in support of the environmental impact assessment. On July 30, 2007 I was advised by Loyola Hearn , Minister of Fisheries and Oceans that DFO has reviewed the December 28, 2006 Environmental Assessment Document submitted by Pottinger Gaherty Environmental Consultants Ltd . and determined that the proposed works will trigger the requirement for a screening level environmental assessment pursuant to the Canadian Environmental Assessment Act (CEAA). Minister Hearn also voiced support of Mission’s Streamside Protection Regulation bylaw.

The CEAA assessment was terminated by DFO on Dec. 22, 2009 without having been completed. Less than a month after termination of the CEAA, on Jan. 18, 2010, Mission Council voted unanimously to vary their Streamside Protection Regulation (SPR) Bylaw on request of Genstar (attached). Mission staff’s report in support of the variance referred to Genstar’s active development application # R02-033. Section 108 of Mission’s Zoning Bylaw would have required that a setback of 30 meters from the high water mark of Silvermere Lake be protected, consistent with the 30 meter setback recommended by Dr. Rosenau, Ministry Water Land and Air Protection 2003 (attached) and consistent with a letter sent to the developers dated Feb. 17, 2004 by Craig Scainkowy, DFO (attached) following land clearing on the peninsula portion of the development. Mission Council voted to vary the SPR bylaw and allow the use of the Riparian Area Regulation (RAR) method despite staff stating RAR would likely result in reducing the protected areas in half to 15M.

Questions to DFO:

1. Did Genstar inform DFO that their proposal was still active prior to the termination of the CEAA? If so, why was the CEAA terminated? If not, why was the CEAA terminated without confirming that the application was still active?
2. Did Genstar inform DFO that they were requesting a variance from Mission’s Stream Protection bylaw before or after termination of the CEAA? If not, would the CEAA have been terminated had DFO been informed about the variance request?
3. Did DFO authorize clearing of the peninsula to 15 meters from Silvermere Lake or did Genstar clear the riparian area without a 35(2) authorization from DFO? If no authorization was given, why have charges not been laid under the Fisheries Act and reparations not required for the loss of this habitat?
4. Did DFO authorize deposit of fill on the peninsula or did Genstar proceed without DFO authorization? If no authorization was given, why were charges not laid under the Fisheries Act and reparations not required for the soil deposit?
5. Did DFO authorize road construction within the15 meter zone during the Invasive Species study or did Genstar proceed without DFO authorization? I note that the study area which included removal of Himalayan blackberries and planting of native species was located on the southern portion of the island, accessible by the south causeway while the road construction occurred on the north end of the island where no blackberry removal or plantings occurred. If no authorization was given, why were charges not laid under the Fisheries Act and reparations not required for the loss of this habitat?
6. What is the response of DFO to the environmental impact assessment submitted by Pottinger Gaherty December 2006 entitled Environmental Impact Assessment Silvermere Development, Mission, BC? (available on request from DFO).
7. The Environmental Impact report referred to above specifies that 7.5 meter building setback is included in the riparian area for the development. Wouldn’t Fisheries and Oceans Canada consider a building setback a hardened area as outlined in The Shore Primer Making Amends: Ways to Restore an Altered Shore, 2004? (see http://www.dfo-mpo.gc.ca/regions/central/pub/shore-rivages-on/05-eng.htm).
8. 60 meter setbacks for rural areas like Silvermere Island are recommended in the Best Management Practices document Develop with Care: Environmental Guidelines for Urban and Rural Land Development in British Columbia (see http://www.env.gov.bc.ca/wld/documents/bmp/devwithcare2006/DWC%202006%20Sec%201%20Introduction.pdf). 30 meter setbacks are recommended for urban areas in this document. Upon notice of termination of the CEAA, I was advised to contact DFO if clearing was occurring in the fisheries sensitive zone. How far from the Stave river is the fisheries sensitive zone? What is DFO’s position with respect to setbacks from the Stave River?
9. What is DFO’s position with regards to setbacks from Silvermere Lake? How far from Silvermere Lake is the fisheries sensitive zone?
10. Has Genstar been in contact with DFO since the termination of the CEAA? If so, what has been discussed?
11. Genstar has received permission from the District of Mission to utilize the Riparian Area Regulation (RAR) to determine setbacks from Silvermere Lake despite staff stating that it could result in 15 meter setbacks. Does RAR supersede DFO and MOE ’s prior recommendations for 30 meter setbacks? What is the process for reconciling differences in setbacks?
12. Would a Section 9 British Columbia Water Act approval to work in and about a stream be required to construct a road to the island? Can DFO authorize road construction to the island without a Section 9 approval in place?
13.  DFO has promised that road construction to the island would trigger a CEAA. What opportunity will there be for the public to provide input to the CEAA once it is reinitiated?

Questions to environment Canada;

1. What powers does Environment Canada have with respect to protection of species at risk in Silvermere Lake and Silvermere Island?
2. I was told by Environment Canada that if species at risk were inadvertently killed by heavy equipment it is not considered an offence under SARA. Is this correct? If so, what is the rationale for this statement? If not, how can Environment Canada ensure that painted turtles, red-legged frogs, and the other species at risk in Silvermere Lake and Silvermere Island are not harmed now that the CEAA has been terminated?
3. Is it an offence to destroy habitat of species at risk on Silvermere Lake and Silvermere Island? If so, what is the mechanism for protection of this habitat without an active CEAA in place?
4. An active bald eagle nest is located at the north end of the Island. Under rural Best Management Practices outlined in Develop with Care: Environmental Guidelines for Urban and Rural Land Development in British Columbia (see http://www.env.gov.bc.ca/wld/documents/bmp
   /devwithcare2006/DWC%202006%20Sec%201%20Introduction.pdf) the allowable landscape-disturbance perimeter for this species is 150 metres for rural areas. What is Environment Canada’s recommendation for setbacks from active eagle’s nests? What is Environment Canada’s recommendation for setbacks from the active Barn Owl nest?

*[attachments not posted]

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Minister's Response: Environment Canada

22 December 2010

[personal information withheld that the petitioner’s request]

Dear [personal information withheld that the petitioner’s request]:

I am pleased to provide a response to your Environmental Petition No. 122E, pursuant to section 22 of the Auditor General Act, regarding the termination of an environmental assessment under the Canadian Environmental Assessment Act for the Silvermere Housing Development. Your petition was received in Environment Canada on September 2, 2010.

Enclosed you will find Environment Canada’s response to your petition. I understand that the Minister of Fisheries and Oceans, the Honourable Gail Shea, will be responding separately to the questions that fall under her mandate.

I appreciate this opportunity to respond to your petition, and trust that you will find this information helpful.

Sincerely,

[Original signed by John Baird, Minister of the Environment]

John Baird, P.C., M.P.

Enclosure

c.c.: The Honourable Gail Shea, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

Environment Canada’s response to Environmental Petition No. 122E, regarding the termination of an environmental assessment under
 the Canadian Environmental Assessment Act for the Silvermere Housing Development.

Question 1: What powers does Environment Canada have with respect to protection of species at risk in Silvermere Lake and Silvermere Island?

The responsibility for species at risk in Canada is shared between the federal and provincial governments, depending on the type of species and land ownership. Aquatic species and migratory birds are the responsibility of Fisheries and Oceans Canada and Environment Canada, respectively. It is illegal to kill, harm, harass, capture, take, buy, sell or destroy the residences of migratory birds that are also listed as species at risk, wherever they occur.

The lands adjacent to Silvermere Lake near Mission, British Columbia, as well as the island within Silvermere Lake, are private lands. Terrestrial species on private lands are under the jurisdiction of the Government of British Columbia. Therefore, protection of species at risk on these lands falls first under the jurisdiction of the Province.

Protection of aquatic species at risk is the responsibility of Fisheries and Oceans Canada. Protection of species at risk under the responsibility of Environment Canada, their residences or critical habitat would be put in place under the federal Species at Risk Act (SARA) only if an order were made by the Governor in Council under subsection 34(2) of SARA for individuals and/or their residences, or subsection 61(2) for critical habitat, or section 80 for an emergency order.

When a federal environmental assessment is required, such as by the Canadian Environmental Assessment Act, SARA requires that the adverse effects of a project on all listed wildlife species and their critical habitats be identified. When critical habitat has not yet been identified in a recovery strategy or action plan, the competent minister will consider the effects of the project on any habitat identified as high quality or of special importance.

Question 2: I was told by Environment Canada that if a species at risk were inadvertently killed by heavy equipment it is not considered an offence under SARA. Is this correct? If so, what is the rationale for this statement? If not, how can Environment Canada ensure that painted turtles, red‑legged frogs, and the other species at risk in Silvermere Lake and Silvermere Island are not harmed now that the CEAA has been terminated?

On provincial or private lands, killing, harming, harassing, capturing or taking an individual of a terrestrial species that is listed as an extirpated, endangered or threatened species under SARA would be an offence under that act only if an order were made under subsection 34(2) prior to the activity. There is no such order in place in the Silvermere Lake area. Therefore, such an incident would not be an offence under SARA. However, the killing of migratory birds protected under the Migratory Birds Convention Act, 1994 is an offence no matter where it occurs.

Question 3: Is it an offence to destroy habitat of species at risk on Silvermere Lake and Silvermere Island? If so, what is the mechanism for protection of this habitat without an active CEAA in place?

The habitat of aquatic species in Silvermere Lake is protected by the Fisheries Act where it applies. Once formally identified, critical habitat for terrestrial species at risk on private lands would be protected under SARA only if an order under subsection 61(2) were made. No critical habitat has been identified by Environment Canada in the Silvermere Lake area, therefore no order can be made. The Government of British Columbia is responsible for the protection of most wildlife habitat in that area, using the laws of the province, such as the British Columbia Wildlife Act.

Question 4: An active bald eagle nest is located at the north end of the Island. Under rural Best Management Practices outlined in Develop with Care. Environmental Guidelines for Urban and Rural Land development in British Columbia (see http://www.env.gov.bc.ca/wld/documents/bmp/devwithcare2006/DWC%202006%20Sec%201%20Introduction.pdf) the allowable landscape-disturbance perimeter for this species is 150 metres for rural areas. What is Environment Canada’s recommendation for setbacks from active eagle’s nests? What is Environment Canada’s recommendation for setbacks from the active Barn Owl nest?

Bald Eagles and Barn Owls are not included under the Migratory Birds Convention Act, 1994, so there are no prohibitions under federal legislation that protect their nests. Therefore, Environment Canada would recommend adhering to British Columbia’s legislation and guidelines in this regard. However, the western population of Barn Owls is listed under SARA as a species of special concern, which requires Environment Canada to produce a SARA‑compliant management plan. For more information, please visit the Species at Risk Public Registry at www.sararegistry.gc.ca/default_e.cfm.

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Minister's Response: Fisheries and Oceans Canada

15 December 2010

[personal information withheld that the petitioner’s request]

Please find attached a response on behalf of Fisheries and Oceans Canada to your environmental petition no. 122E, received by Fisheries and Oceans Canada on September 2, 2010, concerning the termination of the environmental assessment performed under the Canadian Environmental Assessment Act for the Silvermere Island Housing Development.

I appreciate the opportunity to respond to your petition and trust that you will find this information helpful. Please do not hesitate to contact Craig Sciankowy, Section Head, Habitat Management, at (604) 814-1079, if you have any further questions.

Sincerely,

[Original signed by Gail Shea, Minister of Fisheries and Oceans]

Gail Shea, P.C., M.P.

Attachment

cc:  The Honourable John Baird, P.C., M.P.
Scott Vaughan, Commissioner of the Environment and Sustainable Development

FISHERIES AND OCEANS CANADA’S RESPONSE TO PETITION 122E
TERMINATION OF THE ENVIRONMENTAL ASSESSMENT PERFORMED UNDER THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT FOR THE SILVERMERE ISLAND HOUSING DEVELOPMENT

1. Did Genstar inform DFO that their proposal was still active prior to the termination of the Canadian Environmental Assessment Act (CEAA)? If so, why was the CEAA terminated? If not, why was the CEAA terminated without confirming that the application was still active?

Genstar had requested that DFO place their file on hold in April of 2007. Since there had been no action on the file, DFO provided the Proponent with written notification on December 31, 2009 indicating that the CEAA review in relation to their Housing Development Project adjacent to Silvermere Lake was being terminated. Should the Proponent wish to advise DFO that they wish to continue with their development proposal, and should the proposal require a Fisheries Act Section 35(2) Authorization, then DFO will re-start the environmental assessment under the CEAA process.

2. Did Genstar inform DFO that they were requesting a variance from Mission’s Stream Protection bylaw before or after termination of the CEAA? If not, would the CEAA have been terminated had DFO been informed about the variance request?

No. Genstar did not inform DFO of their intent to request a variance to Mission’s Streamside Protection bylaw. DFO would have likely terminated the CEAA environmental assessment under the CEAA regardless of the variance request.

3. Did DFO authorize clearing of the peninsula to 15 metres from Silvermere Lake or did Genstar clear the riparian area without a 35(2) authorization from DFO? If no authorization was given, why have charges not been laid under the Fisheries Act and reparations not required for the loss of this habitat?

DFO did not authorize the clearing of the peninsula to 15 metres from Silvermere Lake. The decision to lay charges is a discretionary one. A number of factors are considered. In this particular case, DFO decided not to lay charges. DFO expects any required reparations to be addressed through the development planning process.

4. Did DFO authorize deposit of fill on the peninsula or did Genstar proceed without DFO authorization? If no authorization was given, why were charges not laid under the Fisheries Act and reparations not required for the soil deposit?

Same as 3 above.

5. Did DFO authorize road construction within the 15 metre zone during the invasive Species study or did Genstar proceed without DFO authorization? I note that the study area which included removal of Himalayan blackberries and planting of native species was located on the southern portion of the island, accessible by the south causeway while the road construction occurred on the north end of the island where no blackberry removal or plantings occurred. If no authorization was given, why were charges not laid under the Fisheries Act and reparations not required for the loss of this habitat?

DFO had determined that the works would not result in a Harmful Alteration, Disruption or Destruction of Fish Habitat and therefore did not require a Fisheries Act Section 35(2) Authorization; the overall intent of the works was to increase the productivity of the riparian area for fisheries and wildlife resources.

DFO staff visited the site before and during the course of the works and determined that works were not in contravention of the Fisheries Act. There is one main road that provides access from the north and south ends of the island and across the island. From this north/south road, there is one road that branches and leads down to the enhancement area, which is located approximately mid-island. Access to this road was from the north or south; the north end of the island was apparently chosen over the south end of the island for access due to safety concerns with accessing the island from the south end and off of Highway 7.

Existing roads were stabilized using gravels to mitigate erosion; no new roads were constructed.

6. What is the response of DFO to the environmental impact assessment (EIA) submitted by Pottinger Gaherty December 2006 entitled Environmental Impact Assessment Silvermere Development, Mission, BC? (available on request from DFO)

DFO provided the following responses in regard to the EIA:
December 7, 2006—DFO advised the Proponent’s agent that the EIA would be referred to various agencies and stakeholder groups for comments.
January 19, 2007—DFO sent a letter to the Proponent advising the project would require a Fisheries Act Section 35(2) Authorization and an Environmental Assessment pursuant to the Canadian Environmental Assessment Act.
January 23, 2007—DFO advised the Proponent’s agent that the proposed SPEA widths (setbacks) included in the Environmental Impact Assessment plans were not consistent with the District of Mission’s Streamside Protection bylaw (the bylaw), and that there were three options for proceeding from that point: refer the document to various agencies and stakeholders for comments and then reject the plans because they were not consistent with the bylaw; put the CEAA project review on hold until the Proponent has consulted with and received support for a setback variance from the District of Mission; or submit revised plans to DFO.

7. The Environmental Impact report referred to above specifies that 7.5 metres building setback is included in the riparian area for the development.  Wouldn’t Fisheries and Oceans Canada consider a building setback a hardened area as outlined in The Shore Primer Making Amends: Ways to Restore an Altered Shore, 2004? ( see http://www.dfo-mpo.gc.ca/regions/central/pub/shore-rivages-on/05-eng.htm)

A building setback is generally located outside of and in addition to a riparian zone. A building setback, often also called a no-build zone or root protection zone, is typically intended to protect the riparian area, including the root systems of existing vegetation, from construction activities associated with the construction of new buildings or other features such as retaining walls.

8. 60 metres setbacks for rural areas like Silvermere Island are recommended in the Best Management Practices document Develop with Care: Environmental Guidelines for Urban and Rural Land Development in British Columbia (see http://www.env.gov.bc.ca/wld/documents/bmp/devwithcare2006/DWC%202006%20Sec%201%20Introduction.pdf). 30 meter setbacks are recommended for urban areas in this document. Upon notice of termination of the CEAA, I was advised to contact DFO if clearing was occurring in the fisheries sensitive zone? What is DFO’s position with respect to setbacks from the Stave River?

DFO recognizes this document as an excellent tool for planning development and protecting fisheries resources. However, for specific guidance for determining appropriate widths and measures for protection of Streamside Protection and Enhancement Areas (setbacks), DFO accepts the processes outlined in the B.C. Provincial Riparian Area Regulation http://www.env.gov.bc.ca/habitat/fish_protection_act/riparian/riparian_areas.html.

9. What is DFO’s position with regards to setbacks from Silvermere Lake? How far from Silvermere Lake is the fisheries sensitive zone?

Same as 8 above.

10. Has Genstar been in contact with DFO since the termination of the CEAA? If so, what has been discussed?

No.

11. Genstar has received permission from the District of Mission to utilize the Riparian Area Regulation (RAR) to determine setbacks from Silvermere Lake despite staff stating that it could result in 15 metres setbacks. Does RAR supersede DFO and MOE’s prior recommendations for 30 metres setbacks? What is the process for reconciling differences in setbacks?

DFO accepts the B.C. Provincial Riparian Area Regulation (RAR) and the setbacks that result from the implementation of that Regulation for new projects. The RAR allows either a simple assessment approach with generally a 30 metres default setback or a detailed assessment with variable minimum setbacks plus protection measures.

For this particular situation, the Proponent can seek approval from the District of Mission to use a detailed assessment methodology for determining setbacks as opposed to the simple assessment methodology. Any difference in setbacks between a simple assessment and a detailed assessment that might occur are managed under the authority of the local government.

12. Would a Section 9 British Columbia Water Act approval to work in and about a stream be required to construct a road to the island? Can DFO authorize road construction to the island without a Section 9 approval in place?

Section 9 of the British Columbia Water Act is a Provincial Regulation and any questions pertaining to this Regulation should be addressed by the British Columbia Ministry of Environment. Their Lower Mainland office phone number is 604-582-5200.

DFO can authorize road construction to the island without a Section 9 approval in place; however, it is the proponent’s responsibility to comply with any other relevant municipal, provincial or federal legislations and permits.

13. DFO has promised that road construction to the island would trigger a CEAA. What opportunity will there be for the public to provide input to the CEAA once it is reinitiated?

We expect there will be two opportunities available for the public to provide input to any future CEAA process: by contacting the local DFO office in Mission, B.C. either in writing or simply by dialing 604-814-1079; and by attending local government public hearing meetings (DFO can utilize minutes generated from these meetings as public input for the CEAA process). DFO may also provide an opportunity for the public to provide comments on the draft version of the CEAA environmental screening report.