Streamside Protection Regulation
This regulation attempts to
proactively address the issue of fish habitat loss--something that the federal Fisheries Act and the urban referral
system have not been able to adequately do.
The regulation provides a non-exhaustive list of the natural features,
functions and conditions that the regulation is striving to protect:
·
Large organic debris that can fall into the stream;
·
Floodplains, side channels, and seasonal or intermittent
streams;
·
Forest and ground cover adjacent to streams that
provide temperature moderation, food sources, streambank stabilization and
pollution buffers;
·
Natural sources of stream bed substrates; and
·
Permeable surfaces that permit infiltration to moderate
and maintain water flow to streams.
The regulation also attempts to
harmonize residential, commercial and industrial development setbacks from
streams and avoid conflicts between federal, provincial and local laws.
The regulation only applies to the trust area under the Islands Trust Act
(certain of the Gulf Islands),
and the following regional districts or municipalities within them: Capital,
Central Okanagan, Columbia-Shuswap, Comox-Strathcona, Cowichan Valley, Fraser
Valley, Greater Vancouver, Nanaimo, North Okanagan, Okanagan-Similkameen,
Powell River, Squamish-Lillooet, Sunshine Coast and Thompson-Nicola. The regulation is also under review by
government, with government concerned that staff cutback are incompatible with
implementing the regulation.
Streamside protection and enhancement areas (SPEAs)
The most important feature of the Act is the requirement
that local governments establish streamside protection and enhancement areas by
January 19, 2006. Local governments
have to when exercising their powers under Part 26 of the Local
Government Act with respect to residential, commercial and industrial
development. Part 26 include zoning
powers, rural land use bylaws powers, development permit powers and the power
to pass farm bylaws, run-off control bylaws, and landscaping bylaws.
The size of a streamside protection and enhancement area
varies between 5 and 30 meters depending on factors such as whether there are
fish in the stream, whether the stream has year round flow, and the state of
the vegetation, or the potential for vegetation, along side the stream. Table 1 sets out the widths of SPEAs.
A key weakness of the regulation is that there is no
enforcement provision if local governments fail to protect SPEAs. Local stewardship groups will need to take a
lead role in ensuring the local government take appropriate action, and could
take local governments to court for failure to protect SPEAs. However, while
local governments can use all their Part 26 powers to protect SPEAs, the Fish
Protection Act only requires them to use zoning bylaws and rural land use
bylaws. At the very least this should
include mandatory set backs for new buildings and zoning that limits allowable
uses to maintenance and enhancement of existing vegetation for the purposes of
protecting fish habitat.
Ideally, local government protection of SPEAs should use all
powers under Part 26 of of the Local Government Act. In particular, a combination of set backs, use restrictions, farm
bylaws, run off control bylaws, establishment of development approval
information areas and designation of development permits for purposes of
protecting streams can provide very effective protection by local governments.
Table 1
Vegetation Conditions
|
Stream Conditions
|
Width of SPEA
(measured away from stream bank)
|
|
intact and continuous areas of existing or potential
vegetation equal to or greater than 50 metres wide;
or
limited but continuous areas of existing or potential
vegetation equal to 30 metres wide or discontinuous but occasionally wider
areas of existing or potential vegetation between 30 and 50 metres wide
|
Fish bearing stream
or
Permanent Stream
|
30 metres
|
|
intact and continuous areas of existing or potential
vegetation equal to or greater than 50 metres wide;
or
limited but continuous areas of existing or potential
vegetation equal to 30 metres wide or discontinuous but occasionally wider
areas of existing or potential vegetation between 30 and 50 metres wide;
or
narrow but continuous areas of existing or potential
vegetation equal to 15 metres wide or discontinuous but occasionally wider
areas of existing or potential vegetation between 15 and 30 metres wide
|
Non fish bearing, non- permanent stream
|
15 metres
|
|
narrow but continuous areas of existing or potential
vegetation equal to 15 metres wide or discontinuous but occasionally wider
areas of existing or potential vegetation between 15 and 30 metres wide
|
Non fish bearing, permanent stream
|
15 metres
|
|
narrow but continuous areas of existing or potential
vegetation equal to 15 metres wide or discontinuous but occasionally wider
areas of existing or potential vegetation between 15 and 30 metres wide
or
very narrow but continuous areas of existing or potential
vegetation up to 5 metres wide or discontinuous but occasionally wider areas
of existing or potential vegetation between 5 and 15 metres wide interspersed
with permanent structures
|
Fish bearing
|
Greater of widths referred to in column A or 15 meters
|
|
very narrow but continuous areas of existing or potential
vegetation up to 5 metres wide or discontinuous but occasionally wider areas
of existing or potential vegetation between 5 and 15 metres wide interspersed
with permanent structures
|
Non-fish bearing
|
5 to 15 meters
|
Intergovernmental Cooperation Agreements
The regulation also contemplates development of intergovernmental
cooperation agreements between local governments and the Ministry of Water,
Land and Air Protection, and possible Department of Fisheries and Oceans. Although the drafters of the regulation had
contemplated using cooperation agreements to phase in SPEAs, to develop
appropriate local government protections, and to establish an efficient
mechanism for approving development applications in riparian areas, it is not
clear whether the province anticipates use of these agreements. In 2002 the Ministry of Water, Land and Air
Protection cut most staff devoted to helping municipalities deal with
developments that have potential negative impacts on streams.
Related Guide Pages:
·
Local Government Act
·
Fish Protection Act
For more information about the Streamside Protection Regulation:
·
Streamside
Protection Regulation
·
The Streamside Protection
Regulation and Opportunities for Citizen Advocacy: A Briefing Guide for
Stream Stewardship Advocates (West Coast
Environmental Law, 2001)
·
Ministry
of Water, Land and Air Protection Fish Protection Act website
