Good afternoon.
I'm a self-employed biologist. I specialize in species at risk and habitat restoration in British Columbia. My Ph.D. dissertation was done at UBC and focused on the ecology of two SARA endangered species, the Salish sucker and the Nooksack dace. I am a member of the recovery team for the species and lead author of both recovery strategies, and I've worked on them continuously since 1997, which is to say that I've spent 14 years talking and negotiating with landowners about species at risk and habitat protection.
I would like to speak today about the identification and protection of critical habitat under SARA, drawing upon my experience in dealing with landowners, in producing recovery strategies, and in a lawsuit that resulted from the publication of one of them. Let's start there, with the Nooksack dace recovery strategy.
SARA requires that recovery strategies identify critical habitat “to the extent possible, based on the best available information”. For the Nooksack dace, we were able to produce maps showing the specific areas of stream containing critical habitat. SARA’s definition also explicitly includes “any other areas on which aquatic species depend directly or indirectly”. Since there's a large literature saying that streamside vegetation or riparian areas are critical to the health of aquatic habitats, we included such streamside areas.
To define the width of those buffer strips, we adopted methods already in use in British Columbia in the riparian area regulation. We did this because these methods are scientifically sound and because they had already been agreed to by both the provincial and federal governments for use in areas that are slated for land development.
We submitted the recovery strategy containing these maps in August of 2005. More than a year later, when the draft recovery strategy was posted on the public registry, the maps of critical habitat had been removed, our definition of critical habitat had been removed, and the list of activities likely to result in its destruction was also absent. The recovery ream had not been consulted on any of these changes although our names remained on the strategy as its authors.
Subsequent negotiations between the team and DFO resulted in the reinsertion of some of the deleted material, although not the maps, and in the inclusion of a disclaimer in the critical habitat section stating that the habitat portion of the strategy had been altered to conform with government policy.
Soon after its publication in July 2007, a coalition of environmental groups launched a lawsuit claiming that the strategy failed to identify critical habitat in accordance with SARA. I was one of three recovery team members to provide them with an affidavit.
Over the next two years, the lawsuit proceeded through a series of legal machinations, including an attempt to strike much our affidavits, the redaction of e-mails describing the government’s reasons for removing the critical habitat, and an attempt to get the lawsuit dismissed as moot through the belated inclusion of the critical habitat maps.
Ultimately, the Federal Court found in the environmental groups’ favour. In his decision, Justice Douglas Campbell described the government’s actions. He said, “This is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law”.
To its credit, the government has responded positively and appears since then to have adopted policies in recovery planning aimed at identifying critical habitat to the extent possible, but other problems have emerged.
The belated inclusion of the maps for critical habitat triggered a requirement for the minister to either make an order under SARA to protect the critical habitat or release a habitat protection statement explaining how it was already protected. In December 2008, a protection statement, rather than an order, was released, and I was quite disappointed in its contents.
It claims that most of the threats to critical habitat are already addressed by section 35 of the Fisheries Act and dismisses other threats as not being to habitat but to individuals. Now, from 14 years of working in these streams, I know this isn't true.
Section 35 of the Fisheries Act states, “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. But for this section to be applied, it requires that some person must be identified and presumably charged as the culprit.
But who's the culprit when a hundred wells and 20 irrigation pumps spread over 50 square kilometres collectively suck a stream dry? Who's the culprit when runoff from rooftops and from roads combine to produce flash floods that damage habitat, or when erosion from dozens of properties lacking riparian vegetation combines to clog a spawning bed?
These are cumulative impacts, often from non-point sources of pollution. They are what most threaten Nooksack dace and a variety of other species, yet they remain completely unaddressed, and the reason is that the Fisheries Act cannot address them--SARA can.
Consequently, the habitation protection statement, in my opinion, continues a pattern of delay and attempted avoidance of effective action to protect species at risk and is certainly insufficient to protect Nooksack dace critical habitat.
So what to do?
I work regularly in about 15 watersheds in the Fraser Valley and I have spoken with scores of landowners about habitat and species at risk over the years. Most have been farmers who perceive that they may have to give up some land or some agricultural practices on land adjacent to waterways if habitat protections are adopted and enforced.
Not surprisingly, most are hostile to this notion, but only because they fear that the costs of such protection are going to be borne by them alone. Farmers are not by nature anti-conservation or anti-environment and most will readily accept a scenario in which society pays for society's benefits from their land. A little money on the table goes a long way.
The circumstances provide a rather instructive example of how this might work. Three of the four Canadian streams containing Nooksack dace flow south across the U.S. border into Whatcom County, Washington. I can stand on the O Avenue bridge, the border road on the Canadian side, and look at a recently reforested riparian area in Whatcom County along Bertrand Creek. It is one of the many stretches of previously denuded farmland that the state has leased from farmers for its ecological services, in their case the preservation of water quality and the protection of endangered salmon stocks.
This brings up an important point. These ecological services of critical habitat extend far beyond species at risk. Nooksack dace are always found with salmon, British Columbia's most iconic and economically important native species.
Healthy aquatic and riparian habitats purify water. They store carbon. They function as primary pathways in the landscape through which water and nutrients and organisms move. They're essentially the circulatory system of an ecosystem, and it's in our interest to protect them.
There's another sort of potential cure. In B.C., landowners of small rural properties can pay low agricultural taxes if they show a few thousand dollars in gross agricultural income. This promotes the clearing and farming of very marginal lands by people who have little knowledge of sound agricultural practices or incentives to practice them, often on small hobby farms. If those people were offered tax relief in the form of grants to offset the municipal taxes in the same way that is done with agricultural taxes, this practice would be alleviated.
To conclude, I have three specific recommendations.
First, the regulations regarding compensation should be developed immediately, as provided for under section 64 of the act, to facilitate the protection of critical habitat on private land.
Second, use SARA protection orders or conservation agreements to take meaningful steps to protect critical habitat, rather than claim, without scientific support, that the existing laws protect species adequately. I mean, if existing laws were working adequately, these species would not be on the endangered list.
Third, to reiterate what my colleagues have said, recovery teams should be given statutory life under SARA and directed to use the best available knowledge in developing recovery strategies to restore species in their habitat.
Thank you for your time and attention.