Again posting on behalf of Carl Hunt:
“Modernization” of the Federal Fisheries Act -1st Reading 2006
Protection of Fish & Fish Habitat or Modernization of Process?
The promotional information was reviewed earlier and I just read Part 2 of the legal version of the proposed changes. I appreciate the need for modernization of this very old piece of legislation but it is difficult to interpret how some of the ‘good intentions’ might work in the real world. Interpreting the wording of the proposed act is difficult and I have decided to mainly comment on the habitat issues however I think the allocation issues might become very important in the future even with Alberta fisheries.
I’m not sure how the Federal Fisheries Act (FFA) was used in other provinces or how familiar current DFO staff are with the history of its application in AB so I’ve decided to write a short & biased history from my perspective as a retired fishery biologist that spent 33 years managing fish in Alberta. My purpose is to discuss past successes and failures that might be used to enhance the new version.
In 1964 AB fish biologists automatically received a Fishery Officer appointment so we could violate the Act & Regulations as they pertained to fish sampling. All I knew about the Act was that I could collect fish with nets, traps, electricity, rotenone or explosives and freely exploited these methods and a few more. In about 1970 we (Kraft & Hunt) received a report from Rocky Mountain House F&W Officers about an oil company pushing drilling mud into a creek. We investigated and found that an oil drilling sump had been reclaimed by pushing the oily mud over a bank and into a small ravine. The company never bothered to look but the ravine had a small tributary to Prairie Creek which was a popular trout stream. We couldn’t find any company reps to explain what had happened but the F&W officer slapped a seizure tag on a D9 Cat left at the site and the next day three company reps (oil company, drillers and construction firm) were banging on the F&W Office door and had already phoned our Edmonton Office.
In those days once Fisheries Act charges were laid by a local officer, for good cause, it was difficult for supervisors or politicians to interfere. The seized equipment was returned to the contractor but we collected samples of water, substrates and invertebrates and spent about three weeks analysing and summarizing data and two days in court nervously presenting and defending the evidence. We didn’t have dead fish because the drilling mud filled the small channel and we found no fish upstream. The effluent slowly leaked into a fast flowing creek which diluted the seeping oil and grease. The magistrate hearing the case was a retired RCMP Officer and after the first day of trial we realized that our endless parade of samples and professional testimony had him somewhat confused. Finally we entered a series of photographs of the site and we could see that he understood the situation. We also had an excellent crown prosecutor (up against three company lawyers) that wasn’t familiar with the Fish Act but did a commendable job of wringing the truth out of a reluctant equipment operator. The company was found guilty and charged some paltry fine like $500 but the petroleum industry did not like the publicity.
In about 1971 Chuck Lane in Edson prosecuted a strip mine for releasing coal fines and probably allocated most of his staff for the better part of a summer to get a guilty verdict and a fine of about $3000 plus considerable press coverage. In those days I think jack-lighting got about $500 so the penalty was modest but respectable. The DFO preamble for the “Modernized Act” mentioned the problem with “costly and slow court solutions”. Our experience with the courts would definitely agree with DFO’s concerns, but our prosecutions gained the ‘respect’ of industries throughout Alberta.
Biologists and technicians took short courses from an environmental lawyer from Ontario and a DFO biologist from B.C. that specialized in difficult violations of the FFA. We learned about continuity of evidence, preservatives for various types of pollutant samples, recording evidence and statements etc. We all carried sampling kits with sterilized jars, the correct preservatives, labels, note books and a Polaroid camera. At sloppy construction sites when companies refused to listen to reason we just got out our sampling kits and companies usually decided to cooperate. We knew the courts were a slow and costly process but so did industries. A few prosecutions taken through a public court system earned us an awful lot of respect. Over the next ten years a number of prosecutions were won and a few were lost but many responsible companies got the message without the need for constant supervision.
During the 1970’s fisheries developed a small referral system and we got to review many of the land use applications that impacted water before construction. We often developed a good rapport with companies by explaining what we wanted and why it was important. We didn’t tell companies how to construct but rather what not to destroy. Companies came up with innovative solutions that were cost effective and protected fish habitat. I was involved in investigations of dozens of pipeline breaks that were all deemed to be accidents and didn’t violate the Act. We never did get companies to take responsibility for maintenance and prevention of pipeline breaks beyond their economic risk standards.
By the 1980’s, seismic exploration was becoming a big issue and wildlife managers got involved and demanded a halt to winter seismic because it caused stress to ungulates but fisheries wanted winter seismic to reduce erosion and damage to stream crossings. The habitat section was formed and F&W tried to sort out these differences before we negotiated with industries etc. Referral systems became more complicated and demanding but also more efficient and effective. Industries also learned they could ignore the rules to get the job done and then negotiate the clean-up, after their priorities were satisfied.
Laying charges under the Act became more complicated and required head office approval. Several flagrant habitat violations were diligently investigated and samples collected only to be tossed back and forth between Federal & Provincial jurisdictions until the statute of limitations cancelled the charges or some bureaucrat with minimal fisheries expertise decided we didn’t have proper evidence. Prosecutions became very rare and usually only resulted from strong public complaints or large fish kills.
In the early 1990’s the habitat section was dissolved and the responsibilities reverted to fisheries management. All the contacts and relationships with industry (often positive) were lost as habitat staff got shuffled around and transferred to other areas or duties. Fisheries struggled to retain parts of the referral system but with exponential industrial growth our efforts became ineffective and we spent most of the time putting standard conditions on applications and seldom had time to inspect anything in the field to see if the actions were being applied. The Deputy Minister in 1994 advised us via our Regional Directors that we must “de-regulate vigorously” and that “our image as regulators and an obstruction to business must change”.
In one example a company was drilling a pipeline under a stream to avoid timing restrictions for trout spawning and got a drill bit stuck. They asked for permission to recover the bit and fisheries staff agreed they could install a pump bi-pass and dig through the stream channel, which normally wouldn’t be permitted. An impromptu inspection during construction found two backhoes digging the pipeline with no bi-pass and no pumps on site. The fisheries person told them to stop digging and was later advised that he had no authority to stop them which was technically correct because our fisheries officer appointments had been revoked. Eventually the company was assessed a penalty and we found out they had four previous transgressions. The assessed penalty of $500 (that’s five and two zeros) in 1995 dollars with no publicity was way cheaper than complying with standard clauses (or “operational guidelines”).
In another situation numerous pipeline breaks were reported by F&W officers around the old oil field at Swan Hills. They reported over a dozen breaks in one year (mostly saline recovery water going into beaver dams and small non fish bearing waters) and asked for advice about laying charges. No fish had been killed and I knew that successful prosecutions were unlikely. I requested advice from senior levels and eventually found out that over 100 breaks had occurred. A management committee dealt with the situation and slightly reduced the number of breaks before I retired. The field was old, depleted and the industry just wanted to drag out a few more barrels at least expense and that didn’t include maintenance or repair costs.
By 2000, DFO again took an active role in protection of provincial fisheries. Local fisheries staff quietly hoped to see the end of political meddling in protection of fish habitat but by 2005 DFO was reorganized and down sized. Now the Federal Fisheries Act is being “Modernized” and appears to be “watered down” for ‘streamlining the process’ rather than being improved to protect fish and fish habitat in this modern industrial world that includes so many cumulated impacts.
A FEW SUGGESTIONS
The fisheries act needs to improve the definitions of fisheries habitat to reflect our current knowledge of impacts on the fisheries resource and the cumulated impacts of today’s industries and societal demands.
“Canopy removal”. Logging of mature forests impacts flow regimes and flood events and causes channel degradation and accelerated stream bank erosion. Despite reforestation, these impacts only decline over 30 or 40 years while the forest canopy recovers. Impacts from roads, urban development, agriculture and other industry are often permanent.
Canopy removal/retention standards need to be established for relatively small watersheds in the boreal forest and other ecoregions such as the Upper and Lower Foothills.
“GROUND WATER”. Instream up-welling (springs) are critical for successful spawning of salmonids. Groundwater has a temp of 4-8 degrees C and in winter this warmer water keeps fall spawned eggs from freezing and allows slow incubation so fry hatch in the spring. In summer, groundwater up-welling cleans the eggs of silt and maintains cooler, constant temperatures for egg incubation of spring spawners.
No ground water – no reproduction – no fishery.
Protection of fish habitat requires protection of the watersheds that provide clean, cold oxygenated water that is required by native fish. Groundwater is critical for successful spawning and egg incubation of most salmonids. Ephemeral tributaries don’t contain fish but the water provided is essential for fish survival. Groundwater flows are poorly understood and seldom monitored but most hydrologists agree that riparian areas are an important source of water for base levels of winter and summer flows.
“Riparian” must be defined to include all riparian areas in a watershed and the active floodplain of flowing water.
Headwater reaches of western rivers are often unstable and the channel moves across the floodplain during flood events and major channel changes occur from blockage with logs, debris or ice jams. If a new channel is naturally carved through a logged or cultivated area there is no bank cover or root system to hold the soil. Vegetation removal within riparian areas must be restricted and monitored to ensure channel stability for the long term.
Riparian tree buffers in Alberta only apply to fish bearing water on public land. Riparian areas on private lands and ephemeral streams should be protected to ensure bank stability and provide an important source of ground water to maintain winter flows.
“Sediment” is natural occurring and common in productive trout streams. Sediment plugs the spaces in clean gravel and fish eggs are smothered but sediment is a natural feature in all our rivers. Rigorously peer reviewed scientific studies over the past 30 or 40 years have repeatedly identified silt as a major limiting factor to successful salmonid spawning. Small point sources of sediment are not considered deleterious but the cumulated impacts over many years destroy self reproducing populations. Defining allowable inputs of sediment is complex but if it is ignored we will lose our productive native fisheries and the benefits of natural reproduction. When construction results in a little bit of sediment it can’t be proven deleterious. When dozens of companies add a bit of silt, fish don’t reproduce – they just disappear - but a crime can’t be proven and no one is responsible.
Sediment placement in a stream or where it is likely to enter a stream must be prohibited and input of sediments at any concentration must be defined as a harmful substance. Specific criteria must be established to easily measure and enforce these standards. Standards might be based on areas (or volumes and time periods of unstable or disturbed soil) and on measurable differences between suspended sediment measured upstream and downstream of any human activity or disturbance.
Tolerances must be strict.
“Minimum Flow”. Politicians and the public recognize that water is a precious resource for the Prairie Provinces. Water licensing and allocations have been stopped (over allocated?) on the Bow River and South Saskatchewan basins however I am not aware if the licences include timing constraints or have a method to maintain minimum flows for fish survival in dry summer periods or critical low winter conditions. The Fisheries Act should have the power to set minimum flow rates that ensure the survival of fish. An adequate year round supply of water is just as important to fish as having water that is free of a deleterious substance. Where are, the guarantees that fish will be provided with base flows, after all the water permits and licences are sold off?
Federal Fisheries Officers were responsible for the management and enforcement of commercial fisheries prior to the formation of the Provincial Fish & Wildlife Division in the 1950’s. Regulations were under the Federal Fisheries Act and responsibilities were shared between the two levels of government. During the 1970’s most resource staff carried Fisheries Officer appointments (F&W officers, biologists, technicians, forestry and parks officers). When the Charter of Rights was enacted it was used as an excuse by enforcement bureaucrats to claim that the powers of the FFA were too technical for ordinary biologists and fisheries staff so only officers held appointments. I am not aware of any examples of fisheries staff in Alberta abusing the powers under the Act. By the early 1990’s provincial politicians cut the F&W Habitat Section and senior fisheries staff were discussing (perhaps haggling?) with the Feds about who should take the lead role in supervising the FFA. Since the province had re-assigned habitat staff and mostly abdicated fish habitat protection, it made good sense for the Federal government to enforce the FF Act.
Initially federal enforcement lacked experience but made the impression that at least one government level was going to seriously deal the problems with loss of fish habitat.
Over a month ago I requested some enforcement statistics from DFO and to date (several days ago by phone) I was advised there are 2 Federal Fisheries Officers and a supervisor in Alberta plus 3 Habitat Monitors but “no downsizing or layoffs”. The monitors I remember were the brown-noser’s that got to clean the blackboards in grade school. Who describes these important positions?
Fisheries protection requires access to all land-use applications that are issued by the provincial government. Without a record of these applications the enforcement agencies (or monitors) have no idea about the type, frequency or location of potential habitat alterations. “Standard Guidelines” beg for arbitrary standards that are decided by industry. When public complaints or a rare field inspection discloses fisheries violations, the process invites an argument of a ’misinterpretation’ of the standards and further negotiation and mitigation. This process might work if a very large number (100’s) of officers were inspecting all sites before, during and after construction. That was often the case when district Fish & Wildlife and Forest Officers kept a close eye on industrial activity in ‘their’ small areas. Today these positions have been centralized, downsized and specialized and construction sites are seldom visited at any stage of construction. Provincial Natural Resource managers are too busy answering emails and perhaps reviewing applications to actually do many field surveys.
Federal fisheries staffs are in worse shape because they lack any kind of mandatory review prior to construction. They depend on industries to advise the Minister of F&O about the next industry project that ‘might’ damage fish habitat. No doubt they will claim to have followed operating guidelines but had bad weather or some other valid (?) reason for the destruction of habitat. Any threat of mitigation and reclamation –if they get caught – is a small deterrent for industries that are in a big hurry, trying to meet deadlines on 10 million dollar petroleum wells or tightly budgeted logging operations. With Habitat Monitors” the usual penalty will be a negotiated agreement to clean up the mess. The result will be a low standard of construction, reclamation and insidious damage to our fish resource.
Provincial cooperation is essential to handle all the land-use applications under provincial jurisdiction. These need to be referred to the appropriate Natural Resource agency (Forestry, F&W, Parks, Public Lands etc. that have been shuffled and renamed so many times I don’t know what they are called). Fisheries should be advised of all applications in the riparian zone or flood plain and be given the opportunity (funding and staff) to review the applications and on a priority basis, do field inspections and apply special conditions. Applications can be dealt with under “operational guidelines” but every site should have a high probability of an inspection. With the F&W Habitat Section, a few staff in each region handled applications with fish & wildlife concerns and became knowledgeable about the issues and poor industry performers. Staff developed effective communication with the other government agencies and the representatives of various industries operating in their areas. In addition by working in smaller defined regions (like N E/S) Habitat Staff made frequent public contacts, encouraged reporting of potential violations and encouraged community ‘ownership’ of renewable resources. Local fisheries management staff provided additional science and quick aquatic sampling capability that is essential during an investigation.
With some industries or individuals, cooperation, trust and communication only go so far. An effective enforcement effort is needed to “educate” the industries that cut corners and fail to take guidelines and operating conditions seriously.
Federal Fisheries Officers backed up by biological experts to sample and testify in court could provide an excellent standard of fisheries protection and apply a strict set of standards across the province and the nation. These officers should not be expected to act as “monitors” or deal with the everyday negotiations of land use activities and environmental protection.
The public is advised of the benefits of industrial activity on public lands but there never seems to be the political will, leadership, funding or vision to provide even minimal supervision, monitoring and research of potentially destructive activities to fish habitat.
A modernized Federal Fisheries Act needs a major overhaul to provide the tools and standards that will reverse current degradation of our fisheries and prevent future problems with issue such as maintaining base water flows for fish and aquatic organisms.
The Federal Fisheries Act should protect and allocate fisheries for aboriginal, commercial and recreational users but the highest priority must be to protect fish, fish habitat and aquatic ecosystems.
February 10, 2007