Riparian Areas Regulation

Warren Bell

To be published in the Summer 2014 Watershed Sentinel

The Riparian Area Regulation isn’t a regulation, because it doesn’t regulate. It facilitates environmental destruction by developers because it has no penalties. It contains no provision for cancelling a project, so any proposal can theoretically go ahead, even if badly planned. It fatally relies on information bought and paid for by the very person or corporate entity that stands to make money out of the development it is supposed to control – and doesn’t provide for checking that purchased information to see if it’s correct.

In April the BC Ombudsperson released a major report pinpointing difficulties with the “professional reliance” model of land use planning, where professionals and companies control their own actions and design their own land use systems, such as logging plans, replanting, or riparian zone protection. The government, in theory, merely monitors the professional behaviour. Striking a Balance: The Challenges of using a professional reliance model in environmental protection – British Columbia’s Riparian Areas Regulation concludes that the BC government is remiss in not providing adequate oversight of company actions.”…Iin 2008, the ministry committed to take actions that, if carried out, would have enhanced the administration of the RAR. Unfortunately, the initial activity that accompanied the development of the RAR did not lead to an adequate and reasonable level of oversight by the ministry.”

Using Salmon Arm’s SmartCentres mall development,  Killing off BC’s environment, one piece at a time provides a step by step, trick by trick guide to the various scenarios under which the professional reliance model is plain old  deregulaton and sleight of hand.

Riparian: of, pertaining to, or situated or dwelling on the bank of a river or other body of water.

Most people in BC have probably forgotten about the announcement made last June by BC’s Ombudsperson, Kim Carter: BC Ombudsperson to launch “systemic investigation” into administration of environmental regulation program 

What many readers may not realize is that this is a review of one of the slickest con jobs in BC legislative history.

The Ombudsperson is looking at the “Riparian Area Regulation”, the means by which the provincial government has given away BC’s rivers, streams, lakes and wetlands for a decade.

Here’s the story of the Riparian Area Regulation, using one of the most egregious examples of its permissive effect on development in environmentally sensitive areas.

Story #1: 2009 – Canada’s largest builder of shopping centres, SmartCentres, decides to build in a flat wetland, that also functions as a river’s floodplain (like the famous one we’ve all heard about next to the Bow River in Calgary). The Nature Conservancy of Canada, Dr. David Suzuki, the Canada Research Chair in Community and Ecosystem Ecology at Thompson Rivers University  and several other acknowledged experts all agree that this site is critically important salmon habitat, and the wrong place to build. (Not really surprising: the river is called the Salmon River. It runs through the town of Salmon Arm. It empties into Salmon Arm Bay.)

To get around these….inconvenient truths, SmartCentres uses the “Riparian Area Regulation”.

The development is approved.

How did it suddenly not matter that these eminent authorities said this was the wrong place to build? How could they suddenly be made to “disappear”?

Such is the magical mystery power of the Riparian Area Regulation or RAR.

To show how powerfully destructive this so-called regulation is, let’s situate it on the international stage.

No one can forget the horrifying scenes of the Deepwater Horizon ocean oil well blow-out, which spilled an estimated 5 million barrels of oil in the Gulf of Mexico in 2010, causing vast and probably inestimable damage to the Gulf ecosystem and economy.

That disaster could not have occurred without using the same principles that are embodied in the RAR.

These principles have been developing all around us for the last several decades.

Here’s how lawyer Margot Priest described this process 15 years ago:

Government regulation is undergoing a change. Modern governments are reexamining their roles as regulators of private sector behaviour. Major industries have been deregulated or re-regulated with significant changes in their regulatory structures. Governments are encouraging the private sector to take the initiative and responsibility for regulatory programs. Some government programs are being privatized and transferred to the private sector; others are being commercialized and being run as if they were private commercial corporations either by government or by private sector “partners.” In some cases, the regulatory responsibilities of government, including rulemaking, inspections and enforcement, are being turned over to the private sector.

Today, the RAR is a final perfect expression of this process.

At the BC government puts it: “In the Riparian Areas Regulation the cost and responsibility for the determination of streamside protection and enhancement area can be shifted from government to development proponents.”

But there is a very dark underside to this apparently “efficient” process –it’s taking away the province’s natural resources from future generations, piece by piece, day after day.

The Deception behind the Riparian Area Regulation

Here’s how the basic scenario works.

First, take an elected government that preaches fewer taxes, smaller governments, and “let the good [private sector] times roll!” There’s very little scientific evidence behind this sermon – just a lot of breathless enthusiasm from boosters of unbridled business.

Next, add in a great deal of behind-the-scenes influence from large corporate players, who feed that government’s collective ego and ambition, so that it’ll do just about anything to make those big boys happy.

Know any governments like that? (Hint: Victoria. Ottawa. Washington under Ronnie Reagan.)

If this is still news to you, then read Margaret Thatcher’s biography – she put her name on the process. Thatcherism – cutting taxes, shrinking government and letting big business more or less take over the running of the economy – that was the name given to her hard-line approach to governing Britain two decades ago.

There’s just one little hitch. Governments know they have a problem with appearing to give away the store to private developers and multinational corporations.

So governments set up a con game.

It’s an old one, called a “shell game”

In this particular version, the operator is the government, and the shills – the folks who loudly back what the operator’s doing, and make it seem like there’s no other choice – are the big business partners, industrialists and developers who crave access to prime riverside and lakeside real estate.

Government says: “We’ll give big business the responsibility for sorting out environmental priorities when they build next to water. Then we can fire lots of employees, like scientists, monitoring staff, professional experts, and their support staff. That means we can shrink government, cut taxes, and get re-elected by our supporters –  the ones who think ‘tax’ is a four-letter word.”

Big business says: “If government doesn’t give us incentives to help us to make a profit, then the economy will tank – or worse for the government and the rest of you, we’ll pull up stakes and go elsewhere, where people play nice.” (Like Indonesia. Siberia. China.)

Finally, government and business quietly make up rules so governments can get re-elected and big business can make money – but without the former actually appearing to be give everything away to the latter.

And these rules are: the Riparian Area Regulation or RAR.

Key flaws in the Riparian Area Regulation

Let’s see how the RAR works its magic, selling BC’s natural resources down the river while appearing to protect them.

Trick #1: the RAR mandates that the process of assessing the environmental impact of a waterside project be handed over a professional hired by the business that wants to carry out the project.

Ever hear the expression: “he who pays the piper calls the tune”?

That’s the system government and business use. Under RAR, the “piper” (biologist) is directly paid by “he” (the developer) who then clearly “calls the tune” (gets what he wants).

If a biologist wants to get hired again by the business community – real estate developers, manufacturing, industrial or retail companies; the ones with all the money – then he or she will look for ways to bend findings to suit whoever’s paying for them.

Remember: “He who pays the piper calls the tune”?

If someone has a waterside project ready to go, and they want approval, they ask their biologist to say: “Our project is great – you should approve it right away!”

How long do you think that QEP would last if he or she said: “Don’t approve this project – it sucks!”

You got it – about 5 seconds.

Story #2: 2009 – SmartCentres wants to build in critical wetland habitat. Using the rules under RAR, it hires two biologists from Canada’s largest consulting firm and pays them to check out the site. They walk the land for a few hours. They write a report. The report is dead wrong. It says the river never floods and so there’s no critical habitat or wetlands where SmartCentres wants to build. But there are photos from local citizens paddling their canoes and kayaks on the site. There is lots of soil and vegetation evidence, right out in the open, of regular flooding into old river channels where juvenile salmon feed in the spring.                           
The report is accepted by the Ministry of Environment. The development is approved

Trick #2: leave the work up to the biologist paid by the developer – but don’t actually check whether his or her work is accurate.

When a biologist checks out a development site for a proponent under the RAR, he or she does so under the title “Qualified Environmental Professional” or QEP. To be a QEP, you have to be a professional biologist, geoscientist, forester, agrologist, or applied technician. You are also supposed to take a weekend course at Malaspina College telling you how to fill in the government forms required for your report, but that’s not mandatory (they’re not that complicated).

But after that, if you’re the QEP, nobody checks your work. You get hired by a developer. You prepare a report, using the forms and methods set out under RAR. You put the report into the hands of government.

This is what the RAR says: “The Riparian Areas Regulation (RAR)….calls on local governments to protect riparian areas during residential, commercial, and industrial development by ensuring that proposed activities are subject to a science based assessment conducted by a Qualified Environmental Professional (QEP).” (emphasis added)

“…protect….science based…Qualified Environmental Professional….” That all sounds so….so secure.

But here’s where the magic comes in.

Government staff check to make sure you’ve filled in all the boxes and spaces in the proper way.

But government staff almost NEVER check to see if you’ve put accurate information in those boxes or spaces.

That’s because the government invokes the concept of the “professional reliance model”. This works on the principle that all professionals in a field are the same; all are equally competent and well-trained, and when given a certain project, will all do a good job and come up with the same result.

That’s why the Deep Water Horizon disaster took place. The US government employed the “professional reliance model” and allowed BP’s scientists free rein to decide how the company conducted drilling in the Gulf of Mexico.

Story #3: 2009 – from the QEPs’ report prepared for SmartCentres: “Within the project site, the Salmon River is contained within well defined banks and does not have alluvial [flood-distributed] deposits beyond the top-of-bank.”

Local citizen scientists proved that trees in the property in question had silt lines on their trunks several feet above the ground surface, where floodwaters had left permanent markings. These same scientists showed incontrovertible evidence of flooding of old river channels (prime feeding habitat for juvenile coho and chinook salmon) occurring every few years all over the same site, filled by the river’s flooding water far beyond “top of bank”.

The Ministry did not check the accuracy of the QEP’s report. It ignored the evidence from local citizen scientists, because the RAR says the QEP report is required evidence, but citizens’ evidence is not.

The QEP report was accepted.

Trick #3: abandon government responsibility and rely on complaints from the public to professional colleges to keep the QEP biologists on their toes.

At first blush, this sounds pretty awesome. If a biologist messes up a RAR report, then anyone can just call the College of Applied Biology, and the College will make that errant biologist toe the line.

Not so fast.

There are colleges and there are colleges.

Some colleges – engineering (Association of Professional Engineers and Geoscientists of BC) and medicine (College of Physicians and Surgeons of BC) have been around for a while, and are strict. They have detailed procedures for handling complaints that are reasonably comprehensive, impartial, and capable of really penalizing and reforming a member who does something wrong, as well as bringing redress to the complainant.

But there are other colleges, like the College of Applied Biology (CAB), that are new, have weak or non-existent disciplinary processes, and treat complaints against members with disdain, indifference or defensiveness.

In the case of biologists, therefore, using the CAB as a backstop for misdemeanours by its members is next to meaningless. The government either knew this when it drew up the RAR, or studiously avoided finding out. That’s because if it did, it would never have been able to pretend that the College could fulfill this role.

Story #4: WA:TER, a local group of scientists and professionals called Wetland Alliance: The Ecological Response, lodged two separate complaints against the biologist QEPs who drew up the SmartCentres’ RAR report, because it was completely wrong. It contained blatant errors that only incompetent or very careless professional biologists would have made.

The College of Applied Biology dismissed the first complaint without evidence for its actions. The second was responded to, not by an independent professional with the CAB, but by the two biologists in question, without any oversight from College staff. Naturally, the two biologists said they had done nothing wrong, but without actually addressing the complaints made against them.

The College accepted the biologists’ answers without assessing them. The complaint against them was dismissed.

A third painstakingly-detailed 33-page report from WA:TER, challenging this process and outlining the biologists’ errors with technically precise written and photographic evidence, was forwarded to the College.

This report was also dismissed summarily, again without independent review, on the grounds that it covered the same ground as had been dealt with in the two previous complaints.

Trick #4: don’t equip RAR with any means for cancelling a project.

If a project sucks, but the report from the QEP says it’s okay, then the project just goes through. But if by some chance the provincial government learns – by rumour, accident, or mistake – that the project is questionable and the report isn’t accurate, then the best provincial staff can do is ask for another report. And then another, and another and another.

Until someone blinks. Almost always, the one to blink is the front-line government employee, who gets the word from his or her political bosses that it’s time to back off and let the project go ahead.

Story #5: 2009 – after multiple presentations to the Ministry of Environment by WA:TER, the local representative of the Ministry, on Dec.1/09, states in a press release: “Please be advised that the Ministry of Environment is commissioning an independent assessment of the active flood plain zone in the area of the proposed SmartCentre development in Salmon Arm.   The results of this assessment will be assessed and may lead to changes in the SmartCentre RAR assessment report.”

No cancellation of the project. No acknowledgement of citizen input. No acknowledgement of egregious errors in the QEP reports paid for by SmartCentres.

2010-2011 – SmartCentres comes back with a revised plan for its shopping centre, down from 55 acres to about 22 acres – based on the evidence laid repeatedly before a resistant Ministry of Environment by WA:TER. WA:TER presents further evidence that the project still includes over nearly five acres of prime fish habitat, according to the Ministry’s own standards, and the guidelines in the RAR.

2011 – The Ministry’s field officer, after reviewing the evidence from WA:TER (including direct video footage) throws up its hands and approves the development anyway, finding a tortuous legalistic way to “grandfather” the fish habitat in question into the building site.

Trick #5: give the job of deciding if the developer’s report if accurate to the local government, which usually hasn’t the expertise or the resources to figure that out.

Say you’ve been diagnosed with a brain tumour. The appointment with the brain surgeon is a week or two away, and his office is an hour’s drive away. But your nephew’s a medical student, and he lives a few blocks away. You call him over and ask him if it’s a good idea to get surgery. He says he supposes so, although he really doesn’t have that much direct experience.

That’s how the provincial government set up the Riparian Area Regulation.

The provincial government has (or used to have, till it down-sized ruthlessly over the last decade or more) all the necessary experts in biology, in floodplains, in the impacts of waterside development. Call them the brain surgeons, if you like.

But because it down-sized them out of existence (thereby winning votes from certain sectors, especially the corporate sector), it cleverly passed on the responsibility for deciding if the RAR reports were accurate to the local villages, towns, cities and regional districts where the developments were taking place.

But the staff in these local governments – like the medical student – usually didn’t have the expertise to judge these matters. So approval of development proposals were pretty much certain to get through.

Story #6: 2002-2008 – SmartCentres works relentlessly for 6 years behind the scenes to win the confidence and trust of City Councillors, staff and land developers in Salmon Arm.

By the time (2009) their hired biologist/QEP RAR report was prepared and submitted, local government officials – none of whom are biologists or have biological training – were so lulled into complacency, and so emotionally bonded to the SmartCentres’ staff, that approval came effortlessly.

This was followed by four more years (2009-2013) of energetic and unthinking support for the project, even after the original footprint was shown to be based on incorrect evidence, and even after extensive  documentation showed conclusively that it was being built in the ecologically wrong place.

Trick #6: design a “regulation” with no penalties whatsoever

This is the coup de grace – the aspect of RAR that turns it into a true smoke-and-mirrors wall of deceit.

In order to make a regulation a regulation, there has to be some sense that the buck stops somewhere. Otherwise, how can it actually regulate?

If you were 16 and told to come home by midnight, and you didn’t, and your mother and father acted as if your coming in at 4:00 am hadn’t happened – no questions, no grounding, no talking to, no grumpy behaviour, no penalty whatsoever – what time would you come home the next few times you were out with your friends?

Or look at it from the other side. You withdraw $500 at the bank. The clerk gives you $450. You count your money, and then complain that there’s $50 missing. The clerk says “Sorry, but there’s nothing you or I can do about it”

How long would you continue banking there? Better a sock under the bed.

That’s how RAR works. No fines, big or small. No jail terms. No public reporting of mistakes. No public apologies. No removing of structures from places they shouldn’t be. No replanting of trees that shouldn’t have been chopped down. No restoration of fish habitat destroyed or of ecosystems contaminated or damaged. No incentive to do it better next time, because if you get away with it once, you’ll try and get away with it again.

In the unlikely event that you get caught, all you have to do is say “sorry” and carry on with your project. (And now, thanks to Stephen Harper’s new rulings – the two Omnibus bills and others – the chance of being challenged for carrying out environmental destruction is vanishingly small.)

Bottom Lines

The Riparian Area Regulation isn’t a regulation, because it doesn’t regulate. It facilitates environmental destruction by developers because it has no penalties. It contains no provision for cancelling a project, so any proposal can theoretically go ahead, even if badly planned. It fatally relies on information bought and paid for by the very person or corporate entity that stands to make money out of the development it is supposed to control – and doesn’t provide for checking that purchased information to see if it’s correct.

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