North 

A m e r i c a n

E n v i ronmental 

L aw and Po l i cy

C.P. 180 Cowansville (Québec) Canada

Tél.: (450) 266-1086 FAX: (450) 263-9256

North 

A m e r i c a n

E n v i ronmental 

L aw and Po l i cy

Fall 2000

Volume 6
For more information about this or other publications from the CEC,

contact:

Commission for Environmental Cooperation

393, rue St-Jacques Ouest, bureau 200

Montréal (Québec) Canada H2Y 1N9

Tel.: (514) 350-4300

Fax: (514) 350-4314

E-mail: info@ccemtl.org

http://www.cec.org

ISBN: 2-89451-464-6

© Commission for Environmental Cooperation, 2000

ALL RIGHTS RESERVED.

Legal Deposit - Bibliothèque nationale du Québec, 2000

Legal Deposit - Bibliothèque nationale du Canada, 2000

Disponible en français – ISBN: 2-89451-460-3

Disponible en español – ISBN: 2-89451-462-X

This publication was prepared by the Secretariat of the Commission for

Environmental Cooperation (CEC). The views contained herein do not

necessarily reflect the views of the governments of Canada, Mexico, or

the United States of America.
PROFILE

In North America, we share a rich environmental heritage that

includes air, oceans and rivers, mountains and forests. Together, these

elements form the basis of a complex network of ecosystems that sustains our livelihoods and well-being. If these ecosystems are to continue

being a source of future life and prosperity, they must be protected.

Doing so is a responsibility shared by Canada, Mexico, and the United

States.

The Commission for Environmental Cooperation (CEC) is an

international organization created by Canada, Mexico, and the United

States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental concerns, help

prevent potential trade and environmental conflicts and to promote

the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free

Trade Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the highest-level environmental authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational support to the Council. The Joint Public Advisory Committee is

composed of fifteen citizens, five from each of the three countries, and

advises the Council on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico,

and the United States.

TABLE OF CONTENTS

Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XI

BC Hydro Final Factual Record (SEM-97-001) . . . . . . . . . . 1

Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Attachments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

IX

PREFACE

The growing economic and social links among Canada, Mexico

and the United States prompted by the signing of the North American

Free Trade Agreement (NAFTA) have increased the importance of

public participation in conserving, protecting and enhancing the

environment of the continent.

The North American Agreement on Environmental Cooperation

(NAAEC) came into force in 1994 to support the environmental goals

and objectives of NAFTA and mandated the creation of the Commission

for Environmental Cooperation (CEC). The process, created by NAAEC

Article 14, whereby private citizens or nongovernmental organizations,

could file submissions with the CEC alleging that a government of one of

the NAFTA Parties was failing in the effective enforcement of that

Party’s environmental laws, provides an unprecedented opportunity

for the public to raise issues concerning the effective enforcement of

environmental law in North America.

The Secretariat of the CEC implements this process, as specified in

Articles 14 and 15 of NAAEC, and in accordance with the Guidelines

for Submissions on Enforcement Matters initially adopted by the CEC

Council in October 1995, and revised in June 1999. Under Article 14,

the CEC Secretariat may consider a submission from any person or

nongovernmental organization asserting that a Party to NAAEC is failing to enforce its environmental law effectively. With Council approval,

this can launch a process that leads to further investigation of the matter

and the publication of findings in a factual record, as provided under

NAAEC Article 15.

The CEC has received 28 submissions since 1995. Eleven of these

submissions are still active, while seventeen have been terminated at

different stages of the process, including two that have led to the publication of factual records. The first factual record concerned the construction of a cruise ship pier on the island of Cozumel in the Mexican

Caribbean, and the second one related to the effect of hydroelectric

XI
operations on fish habitat in British Columbia, Canada. The Secretariat is

currently preparing a third factual record concerning an abandoned

lead smelter in the border city of Tijuana, Mexico.

Included in this volume is the BC Hydro factual record which the

CEC Council instructed the CEC Secretariat to release to the public

in June 2000. This factual record was prepared by the CEC in

response to a submission by the B.C. Aboriginal Fisheries Commission,

et. al., (SEM-97-001) that alleges the Government of Canada is failing to

“enforce s. 35(1) of the Fisheries Act...to ensure the protection of fish and

fish habitat in British Columbia’s rivers from ongoing and repeated

environmental damage caused by hydroelectric dams.”

XII NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
BC Hydro

Final Factual Record

(SEM-97-001)

FINAL FACTUAL RECORD

FOR SUBMISSION SEM-97-001

(BC Aboriginal Fisheries Commission et al.)

Prepared in Accordance with Article 15 of the North American

Agreement on Environmental Cooperation

This factual record was prepared by the Secretariat of the North

American Commission for Environmental Cooperation. The Council

decided on 11 June 2000 to make the factual record public. Release of

the factual record should not be construed to constitute endorsement

of its content by the Council or by any of the Parties.

11 June 2000

TABLE OF CONTENTS

Key to Documents Referenced . . . . . . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. A Summary of the Submission . . . . . . . . . . . . . . . . . . 18

II. A Summary of the Canadian Response. . . . . . . . . . . . . . 21

III. A Summary of Other Relevant Information, and Facts

Presented by the Secretariat . . . . . . . . . . . . . . . . . . . . 35

A. An Overview of the Process used to Solicit and

Develop Information. . . . . . . . . . . . . . . . . . . . . . 35

B. Presentation of Technical, Scientific, and Other

Information that was Publicly Available, Submitted

to the Secretariat, or Developed by the Secretariat

or by Independent Experts . . . . . . . . . . . . . . . . . . 44

1.0 Background on BC Hydro Operations and the

Types of Harm such Operations may cause

to Fish Habitat . . . . . . . . . . . . . . . . . . . . . . 48

1.1 Historical . . . . . . . . . . . . . . . . . . . . . . 48

1.2 The BC Hydro System Today . . . . . . . . . . 48

1.3 Overview of BC Hydro System Operations . . 49

1.4 Impacts of Hydroelectric Operations on

Fish Habitat . . . . . . . . . . . . . . . . . . . . 50

2.0 Background on the Scope of Information Developed

Concerning the Assertions of “Failures to Effectively

Enforce” Fisheries Act Section 35(1) . . . . . . . . . . 55

5
3.0 Information on Significant Canadian Enforcement

Responses Concerning the Statutory Prohibition

against Harming Fish Habitat . . . . . . . . . . . . . 59

3.1 The Concepts of “No Net Loss” and

“Net Gain” . . . . . . . . . . . . . . . . . . . . . 59

3.1(1) A Brief Overview of the Guiding

Principle of No Net Loss . . . . . . . . . . 61

3.1(2) Strategies to Achieve No Net Loss:

The 1998 Decision Framework for the

Determination and Authorization of

Harmful Alteration, Disruption or

Destruction of Fish Habitat . . . . . . . . 63

3.1(3) Application of No Net Loss in the

Context of BC Hydro Facilities . . . . . . 72

3.1(4) Information Concerning the Use of

No Net Loss. . . . . . . . . . . . . . . . . 77

3.2 The Water Use Planning (WUP) Process . . . . 80

3.2(1) Introduction to the WUP Process . . . . . 81

3.2(2) Historical Context . . . . . . . . . . . . . 84

3.2(3) Principles of the WUP Process . . . . . . 88

3.2(4) The Level of Commitment to the

WUP Initiative . . . . . . . . . . . . . . . 89

3.2(5) The Process for Developing WUPs . . . . 91

3.2(6) Actions/Benefits to Date. . . . . . . . . 100

3.2(7) Issues Regarding the Future

Effectiveness of the WUP Process . . . . 103

3.3 Prosecutions and Related Enforcement

Activities . . . . . . . . . . . . . . . . . . . . . 105

3.3(1) Background on Prosecutions and

Related Enforcement Activities . . . . . 105

6 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
3.3(2) Information on Government

Enforcement Policies . . . . . . . . . . . 108

3.3(3) Information on Government

Enforcement Resources, Activities,

and Results . . . . . . . . . . . . . . . . 118

3.4 Environmental Assessments of New Hydroelectric Projects and Retrofit Projects . . . . . 126

3.5 Emergency Response Procedures . . . . . . . 127

3.6 Regional Technical Committees . . . . . . . . 128

3.7 Water Quality Guidelines . . . . . . . . . . . . 129

4.0 Review of Information for Six BC Hydro

Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 130

5.0 Summary . . . . . . . . . . . . . . . . . . . . . . . . 137

5.1 Background Factual Information Concerning

the Challenges Facing Canada in Resolving

Asserted Section 35(1) Violations and Harm

to Fish Habitat Caused by BC Hydro

Operations . . . . . . . . . . . . . . . . . . . . 137

5.2 Factual Information Relating to Enforcement

Actions Other than WUP . . . . . . . . . . . . 138

5.3 The WUP Process as a Means to Address

Fish Habitat Issues . . . . . . . . . . . . . . . . 141

LIST OF FIGURES AND TABLES

Figure 1: Options for Habitat Conservation and Protection . . . . . . . . 62

Figure 2: A Decision Framework for the Determination and

Authorization of Harmful Alteration, Disruption

or Destruction of Fish Habitat . . . . . . . . . . . . . . . . . . . . . . . 65

Table 1: Convictions and Sanctions Reported Under Section 35(1)

of the Fisheries Act in British Columbia . . . . . . . . . . . . . . . 123

BC HYDRO FINAL FACTUAL RECORD 7
LIST OF APPENDICES

1) Letters to Canada, the Submitters, the Province of British

Columbia, and BC Hydro:

• 18 December 1998. . . . . . . . . . . . . . . . . . . . . . . . 151

• 22 January 1999 . . . . . . . . . . . . . . . . . . . . . . . . . 154

• 4 February 1999 . . . . . . . . . . . . . . . . . . . . . . . . . 155

• 18 February 1999 . . . . . . . . . . . . . . . . . . . . . . . . 157

• 12 March 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . 158

2) Synopsis, 18 December 1998 . . . . . . . . . . . . . . . . . . . 159

3) Scope of Inquiry, 18 December 1998 . . . . . . . . . . . . . . . 163

4) 3 February 1999 Questions . . . . . . . . . . . . . . . . . . . . 169

5) 21 April 1999 Questions . . . . . . . . . . . . . . . . . . . . . 183

6) Memorandum from Janine Ferretti, Commission for

Environmental Cooperation to JPAC, requesting

submission of relevant information, 19 January 1999 . . . . . 187

7) Map of the BC Hydro System . . . . . . . . . . . . . . . . . . 189

8) Expert Group Report . . . . . . . . . . . . . . . . . . . . . . . 191

9) Water Use Program Plan, April 1999 . . . . . . . . . . . . . . 277

10) 11 May 2000 Comments of Canada . . . . . . . . . . . . . . . 279

LIST OF ATTACHMENTS

1) Council Resolution 00-04 . . . . . . . . . . . . . . . . . . . . . 283

2) Letter of Canada . . . . . . . . . . . . . . . . . . . . . . . . . . 285

3) Letter of Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . 287

4) Observations of Mexico . . . . . . . . . . . . . . . . . . . . . . 289

5) Letter of the United States of America. . . . . . . . . . . . . . 298

8 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
KEY TO DOCUMENTS REFERENCED

The Factual Record includes information from several sources. The following table provides the full titles of many of the more frequently cited

sources as well as the abbreviated references used in the Factual Record.

9

A. Submissions, Responses and CEC Documents

Abbreviated Title Full Title of Document Referenced

Submitters’ April 1997

Submission

Submission to the Commission on [sic] Environmental Cooperation Pursuant to Article 14 of the North

American Agreement on Environmental Cooperation,

Submitted by B.C. Aboriginal Fisheries Commission, British Columbia Wildlife Federation, Trail

Wildlife Association, Steelhead Society, Trout

Unlimited (Spokane Chapter), Sierra Club (U.S.),

Pacific Coast Federation of Fishermen’s Association, Institute for Fisheries Resources. Represented by Sierra Legal Defence Fund and Sierra

Club Legal Defense Fund, April 1997

Canada’s July 1997

Response

Submission on Enforcement Matters (SEM-97-001)

By Sierra Legal Defence Fund/Sierra Club Legal

Defense Fund, Canadian Response, July 1997

Submitters’ September

1997 Reply to Canada’s

Response

Reply to the Canadian Response to the Submission on

Enforcement Matters, Submitted by B.C. Aboriginal Fisheries Commission, British Columbia

Wildlife Federation, Trail Wildlife Association,

Steelhead Society, Trout Unlimited (Spokane

Chapter), Sierra Club (U.S.), Pacific Coast Federation of Fishermen’s Association, Institute for

Fisheries Resources. Represented by Sierra Legal

Defence Fund and Sierra Club Legal Defense

Fund, 10 September 1997

Secretariat’s 27 April

1998 Notification to

Council

Notification of the Secretariat to the Council for the

Development of a Factual Record in accordance with

Articles 14 and 15 of the North American Agreement

on Environmental Cooperation, 27 April 1998
10 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

Council

Resolution 98-07

Instruction to the Secretariat of the Commission for

Environmental Cooperation on the Preparation of a

Factual Record Regarding the “Effective Enforcement

of s. 35(1) of the Fisheries Act with respect to certain

hydroelectric installations in British Columbia, Canada (SEM-97-001),” CEC Council, Mérida, 24 June

1998

Submitters’

January 1999

Speaking Points

CEC Submission SEM 97-001, Speaking Points of

the Submitting Parties, Prepared by Sierra Legal

Defence Fund, 26 January 1999

3 February 1999

Questions

Commission for Environmental Cooperation Draft

Factual Record Under Articles 14 and 15, SEM-97-

001, Expert Group Questions, 3 February 1999

BC Hydro’s February

1999 Submission

Expert Group, Commission for Environmental Cooperation Draft Factual Record Under Articles 14 and

15 SEM-97-001, BC Hydro and Power Authority

Written Submission, 4 February 1999

Submitters’ February

1999 Submission

Submission to the Expert Group Convened to Investigate Submission No. SEM-97-001 Under Article 14 of

the North American Agreement on Environmental

Cooperation, Submitted by B.C. Aboriginal Fisheries Commission, British Columbia Wildlife

Federation, T. Buck Suzuki Foundation, Trail

Wildlife Association, United Fishermen’s and

Allied Workers Union, Steelhead Society, Trout

Unlimited (Spokane, WA Chapter), Sierra Club

(U.S.), Pacific Coast Federation of Fishermen’s

Association, Institute for Fisheries Resources.

Represented by Sierra Legal Defence Fund and

Earthjustice Legal Defense Fund, 24 February

1999

WUP Management

Committee’s March

1999 Submission

Provision of Information to the Independent Experts

of the Secretariat of the Commission for Environmental Cooperation Under Article 21 of the North American Agreement on Environmental Cooperation,

Water Use Plan Management Committee (Ministry of Employment and Investment; BC Fisheries;

Department of Fisheries and Oceans; Ministry of

Environment, Lands and Parks; BC Hydro; and

Crown Corporations Secretariat), March 1999
BC HYDRO FINAL FACTUAL RECORD 11

Canada’s March 1999

Submission

Provision of Information to the Independent Experts

of the Secretariat of the Commission for Environmental Co-operation [sic] Under Article 21 of the North

American Agreement on Environmental

Co-operation [sic], Habitat and Enhancement

Branch, Department of Fisheries and Oceans,

Pacific Region, 17 March 1999

MELP’s March 1999

Presentation

Presentation to the Panel of Experts for the Council of

[sic] Environmental Cooperation, North American

Agreement on Environmental Cooperation, Ministry

of Environment, Lands and Parks, Enforcement

and Environmental Emergencies Program, 19

March 1999

Submitters’ 22 March

1999 Submission

Submission to the Expert Group Convened to Investigate Submission No. SEM-97-001 Under Article 14 of

the North American Agreement on [Environmental]

Cooperation, Submitted by B.C. Aboriginal Fisheries Commission, British Columbia Wildlife

Federation, Trail Wildlife Association, Steelhead

Society, Trout Unlimited (Spokane Chapter),

Sierra Club (U.S.), Pacific Coast Federation of

Fishermen’s Association, Institute for Fisheries

Resources. Represented by Sierra Legal Defence

Fund and Earthjustice Legal Defense Fund, 22

March 1999

ACFN’s March 1999

Submission

Submission of the Athabasca Chipewyan First Nation

to the Expert Panel Established in Submission 97-001

to the Commission on [sic] Environmental Cooperation, Athabasca Chipewyan First Nation (ACFN),

22 March 1999

Submitters’ 24 March

1999 Submission

Submission in Response to the Submissions of the

Government of Canada, BC Hydro, and the Water Use

Plannning Management Committee in the Factual

Record Preparation for SEM-97-001 Under Articles

14 and 15 of the North American Agreement on Environmental Cooperation, Submitted by British

Columbia Wildlife Federation, Trail Wildlife

Association, Steelhead Society, Trout Unlimited

(Spokane Chapter), Sierra Club (U.S.), Pacific

Coast Federation of Fishermen’s Association,

Institute for Fisheries Resources. Represented by

Sierra Legal Defence Fund and Earthjustice Legal

Defense Fund, 24 March 1999
12 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

21 April 1999

Questions

21 April 1999 letter with follow-up questions

from David L. Markell, Head, Submissions on

Enforcement Matters Unit, Commission for Environmental Cooperation

11 June 1999 Response

to 21 April 1999

Questions

Responses to the Questions posed by the Independent

Experts of the Secretariat of the Commission for Environmental Cooperation (Fisheries and Oceans

Canada (DFO) responds to questions #1-4, and

the Water Use Plannning Management

Committee, comprised of representatives from

the Government of British Columbia, DFO and

BC Hydro, responds to questions #5-9), 11 June

1999

Canada’s September

1999 Response

(SEM-98-004)

Response of the Government of Canada to a Submission on Enforcement Matters Under Articles 14 and

15 of the North American Agreement on Environmental Cooperation, Submission No. SEM-98-004 of June

29, 1998 by the Sierra Club of British Columbia, the

Environmental Mining Council of British Columbia

and the Taku Wilderness Association, 8 September

1999

B. Background Materials

1986 Habitat

Management Policy

The Department of Fisheries and Oceans Policy for the

Management of Fish Habitat, Department of Fisheries and Oceans, Ottawa, Ontario, 1986

Government Response

to ESOR

Government Response to BC Hydro’s Electric System

Operations Review, Province of British Columbia,

April 1995

1995 Subsection 35(2)

Directive

Directive on the Issuance of Subsection 35(2) Authorizations, 25 May 1995

EMS for Aquatic

Resources

Environmental Management System for Aquatic

Resources, BC Hydro, June 1995

ASC Report The Alouette Stakeholder Committee: Process, Analysis and Recommendations, Final Report, McDaniels

Research Ltd., Vancouver, B.C., September 1996

DFO’s 30 January 1997

Letter

30 January 1997 letter from E.A. Perry, Executive

Director, Habitat and Enhancement Branch, DFO

to Dr. J. O’Riordan, Assistant Deputy Minister,

Environment and Lands, Regions Division,

MELP
BC HYDRO FINAL FACTUAL RECORD 13

1998 C&P Guidelines Habitat Conservation and Protection Guidelines,

Developed from the Policy for the Management of Fish

Habitat (1986), Department of Fisheries and

Oceans, 2d ed., 1998

1998 HADD Decision

Framework

Decision Framework for the Determination and

Authorization of Harmful Alteration Disruption or

Destruction of Fish Habitat, DFO, Habitat Management Branch, 1998

BCWF’s 4 April 1998

Letter

4 April 1998 letter from John B. Holdstock, BC

Wildlife Federation, to Hon. David Anderson,

Minister, Fisheries and Oceans Canada, and Hon.

Cathy McGregor, Minister, Environment, Lands

and Parks

Minister Farnworth’s 4

November 1998 Letter

4 November 1998 letter from Mike Farnworth,

Minister, Ministry of Employment and Investment, British Columbia, to Mr. Michael Costello,

President and Chief Executive Officer, BC Hydro

Indian Claims

Commission Report

Athabasca Chipewyan First Nation Inquiry, Report

On: WAC Bennett Dam and Damage to Indian

Reserve No. 201 Claim, Indian Claims Commission, March 1998

IRC Report Four Year Review of the North American Agreement

on Environmental Cooperation: Report of the Independent Review Committee, Independent Review

Committee of the NAAEC, June 1998

1999 WUP Guidelines Water Use Plan Guidelines, Province of British

Columbia, dated December 1998 but released

February 1999

1999 Draft Compliance

& Enforcement Policy

Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy, Draft, Department of Fisheries and Oceans &

Department of the Environment, July 1999
INTRODUCTION

1. Under Article 14, the Secretariat of the Commission for Environmental Cooperation (CEC) may consider a submission from any

nongovernmental organization or person asserting that a Party to

the North American Agreement on Environmental Cooperation

(NAAEC) “is failing to effectively enforce its environmental law.”

When the Secretariat determines that the requirements of Article

14(1) have been met, it decides in accordance with Article 14(2)

whether the submission merits a response from the concerned

Party. In light of the response provided by that Party, the Secretariat may notify the Council that development of a factual record is

warranted, in accordance with Article 15. The Council may, by a

two-thirds vote, instruct the Secretariat to prepare a factual record.

The final Factual Record is made publicly available upon a

two-thirds vote of the Council.

2. On 2 April 1997, the Sierra Legal Defence Fund and the Sierra Club

Legal Defense Fund (now Earthjustice) jointly filed a submission

with the Secretariat, pursuant to Article 14 of the NAAEC (the

“Submitters’ April 1997 Submission”). The Submission was filed

on behalf of the following nongovernmental organizations from

Canada and the United States: the BC Aboriginal Fisheries Commission, the British Columbia Wildlife Federation, the Steelhead

Society, the Trail Wildlife Association, Trout Unlimited (Spokane

Chapter), the Pacific Coast Federation of Fishermen’s Associations, the Sierra Club (Washington, D.C.) and the Institute for Fisheries Resources (collectively, the “Submitters”).

3. The Submitters allege that, inter alia, the Government of Canada

(“Canada”) is failing to effectively enforce s. 35(1) of the federal

Fisheries Act against BC Hydro and Power Authority (“BC

Hydro”), and that this failure “permits and condones the ongoing

destruction of fish and fish habitat in B.C. . . .” (Submitters’ April

1997 Submission, p. 2). Among other assertions, the Submitters

claim that the fact that Canada has “only laid two charges” against

BC Hydro since 1990, “despite clear and well documented evidence that Hydro’s operations have damaged fish habitat on

numerous occasions,” constitutes a failure to effectively enforce s.

35(1) of the Fisheries Act. (Submitters’ April 1997 Submission, p. 1).

Section 35(1) of the Fisheries Act provides that: “No person shall

carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.”

14 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
4. BC Hydro is a Crown Corporation wholly owned by the government of the Province of British Columbia which built, owns, maintains, and operates a system of hydroelectric dams across the

province. (Submitters’ April 1997 Submission, p.1).

5. Canada submitted its response in July 1997 (hereinafter Canada’s

July 1997 Response). In its response, Canada urged that the concept of “effective enforcement” be interpreted broadly, not based

solely on the level of prosecutions pursued for alleged violations of

s. 35(1) of the Fisheries Act. (Canada’s July 1997 Response, p. 2).

Canada reviewed its wide variety of enforcement responses to the

harm to fish habitat caused by BC Hydro operations and asserted

that the decision concerning whether a factual record should be

developed should be made in light of this broad array of responses.

Canada submitted that its enforcement efforts constituted enforcement of its environmental laws in full compliance with its obligations under the NAAEC. (Canada’s July 1997 Response, p. 1).

6. The Secretariat notified the Council on 27 April 1998 that development of a factual record was warranted. The Secretariat agreed

with Canada that a broad definition of enforcement is contemplated by the NAAEC. (Secretariat’s 27 April 1998 Notification to

Council, p. 2). The Secretariat identified several gaps in information concerning the nature of the Party’s enforcement activities and

their effectiveness in ensuring compliance with s. 35(1) of the Fisheries Act. In advising that a factual record should be developed, the

Notification stated as follows:

Additional information is required before an evaluation can be made

that Canada is effectively enforcing its environmental laws. It is recommended that a factual record be developed in order to assemble

further factual information regarding the enforcement activity

undertaken by Canada and the effectiveness of that activity in ensuring compliance with section 35(1) of the Fisheries Act. (Secretariat’s 27

April 1998 Notification to Council, p. 3. See also pp. 12-14).

7. In Council Resolution 98-07, the Council directed that the Secretariat prepare a factual record. The Council Resolution provides as

follows:

Instruction to the Secretariat of the Commission for Environmental

Cooperation on the Preparation of a Factual Record Regarding the

“Effective Enforcement of s. 35(1) of the Fisheries Act with respect to

certain hydroelectric installations in British Columbia, Canada

(SEM-97-001)”

BC HYDRO FINAL FACTUAL RECORD 15
THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of the

North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation

of factual records;

CONSIDERING the submission filed on the above-mentioned matter

by the BC Aboriginal Fisheries Commission, British Columbia Wildlife Federation, Trail Wildlife Association, Steelhead Society, Trout

Unlimited (Spokane Chapter), Sierra Club (U.S.), Pacific Coast Federation of Fishermen’s Association and the Institute for Fisheries

Resources, represented by Sierra Legal Defence Fund and Sierra Club

Legal Defense Fund, and in light of the response provided by the

Government of Canada;

HAVING REVIEWED the recommendation from the Secretariat of

27 April 1998, to proceed with the development of a factual record;

HEREBY UNANIMOUSLY RESOLVES:

TO INSTRUCT the Secretariat to develop a factual record in accordance with Article 15 of the NAAEC and the Guidelines for Submissions

on Enforcement Matters under Articles 14 and 15 of the North American

Agreement on Environmental Cooperation with respect to the submission referred to in the title of this resolution;

TO DIRECT the Secretariat, in developing the factual record, to consider whether the Party concerned “is failing to effectively enforce its

environmental law” since the entry into force of the NAAEC on

1 January 1994. In considering such an alleged failure to effectively

enforce, relevant facts that existed prior to 1 January 1994, may be

included in the factual record;

TO FURTHER DIRECT the Secretariat, in developing the factual

record, not to consider issues that are within the scope of the pending

judicial proceeding before the British Columbia Court of Appeal in R.

v. British Columbia Hydro and Power Authority, specifically those issues

relating to the BC Hydro facilities in the Bridge River hydroelectric

system, comprised of Lajoie, Terzaghi, and Seton dams and their

respective reservoirs.

8. Article 15 of the NAAEC identifies the types of information the

Secretariat should consider in preparing factual records. It provides as follows:

16 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
In preparing a factual record, the Secretariat shall consider any information furnished by a Party and may consider any relevant technical,

scientific, or other information:

(a) that is publicly available;

(b) submitted by interested nongovernmental organizations or

persons;

(c) submitted by the Joint Public Advisory Committee (JPAC); or

(d) developed by the Secretariat or by independent experts.

Guideline 11.1 similarly requires that the Secretariat consider

information furnished by a Party and it authorizes the Secretariat

to consider information from other sources and to develop information on its own.

9. The Secretariat took several steps to solicit information from the

Party (Canada) and to obtain technical, scientific, and other information from interested nongovernmental organizations or persons and the JPAC. Among other efforts, the Secretariat sought

information from the public in general, and from four parties with

particular interest in, and expertise relating to, the Submission: the

Party, the Submitters, the Province of British Columbia, and BC

Hydro. The Secretariat provided specific notice to the JPAC of the

instructions received from the Council for the development of a

draft factual record, and requested that JPAC submit any relevant

information. The Secretariat also developed information itself and

obtained information from an Expert Group it established. This

Expert Group was comprised of recognized experts on fish habitat

issues, dam operations, and compliance and enforcement. Section

III.A below summarizes the process the Secretariat used to

develop information and provides additional information concerning the Expert Group.

10. Guideline 12.1 provides that draft and final factual records will

contain four types of information:

12.1 Draft and final factual records prepared by the Secretariat will

contain:

(a) a summary of the submission that initiated the process;

(b) a summary of the response, if any, provided by the concerned

Party;

BC HYDRO FINAL FACTUAL RECORD 17
(c) a summary of any other relevant factual information; and

(d) the facts presented by the Secretariat with respect to the matters

raised in the submission.

The remainder of this Factual Record provides these types of information. Section I provides a summary of the Submission. Section II

provides a summary of the Response. Section III provides a summary of other relevant factual information and the facts presented

by the Secretariat with respect to the matters raised in the Submission. In particular, this section contains two parts. It first summarizes the process the Secretariat used to develop information. It

then includes information that was publicly available, submitted

by interested parties, or developed by the Secretariat or by independent experts.

I. A SUMMARY OF THE SUBMISSION1

11. The Submitters’ April 1997 Submission (the “Submission”) states

that s. 35(1) and s. 40(1) of the federal Fisheries Act “make it an

offence to carry on any work that results in the harmful alteration

of fish habitat.” (Submitters’ April 1997 Submission, p. 1). As noted

above, s. 35(1) of the Fisheries Act provides that: “No person shall

carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” Section 40(1)

makes a contravention of s. 35(1) an offence punishable on summary conviction or an indictable offence.

12. The Submission notes that s. 35(2) of the Fisheries Act creates an

exception to s. 35(1) by permitting the alteration, disruption or

destruction of fish habitat by any means authorized by the Minister

of Fisheries and Oceans (the “Minister”) or under regulations

made under the Act. (Submitters’ April 1997 Submission, p. 9).

13. The Submission asserts that BC Hydro has “consistently and routinely violated [federal Fisheries Act] section 35(1),” and that the

regular operation of its dams “causes consistent and substantial

damage to fish and fish habitat.” (Submitters’ April 1997 Submis18 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

1. While the Submission raises a variety of issues, the Secretariat’s 27 April 1998 Notification to Council indicated that a factual record was appropriate “only in respect of

the alleged failure to effectively enforce section 35 of the Fisheries Act.” (Secretariat’s

27 April 1998 Notification to Council, p. 3). Council’s direction in Resolution 98-07 is

consistent with this Notification. As a result, the Factual Record focuses only on this

assertion in the Submission.
sion, p. 1). The Submission further asserts that “[t]he Minister has

not issued any authorizations pursuant to s. 35(2)... that permit

Hydro to damage fish habitat, nor are there any regulations under

the Act that exempt Hydro from complying with s. 35(1).” (Submitters’ April 1997 Submission, p. 9). Other statements in the Submission asserting that BC Hydro operations harm fish habitat include

the following: “[h]ydroelectric dams operated by Hydro play a significant role in the alteration and destruction of fish habitat” and

“Hydro’s operations result in significant damage to, and degradation of, fish habitat on a repeated and consistent basis.” (Submitters’ April 1997 Submission, pp. 3, 9).

14. The Submission asserts that many fish stocks in British Columbia

have already gone extinct, and that an even greater number of

stocks are at risk of extinction. The Submission cites hydropower

development as one of the primary factors contributing to these

declines. (Submitters’ April 1997 Submission, p. 2). The Submission further asserts that there are significant costs to such declines:

The extinction of fish stocks is an irreversible loss. Each stock possesses unique genetic information that determines the timing of its

spawning runs, and that also dictates the stock’s return to its original

spawning bed. That genetic information is lost when a stock becomes

extinct. (Submitters’ April 1997 Submission, p. 2).

The Submission claims that the loss of fish habitat and fisheries

populations have harmed human populations as well:

The decline in the fisheries has had a significant impact on communities and individuals which depend on fisheries for their livelihoods

and cultural identities. First Nations, who enjoy a constitutionally

protected aboriginal right to fish, and fisheries dependent communities up and down the coast have faced the severe decline, or loss, of a

traditional livelihood. The harmful alteration of fish habitat has

reduced recreational fishing opportunities, and threatens the livelihoods of people working in the recreational fishing industry. (Submitters’ April 1997 Submission, pp. 2-3).

15. The Submission asserts that BC Hydro dams harm fish habitat in

at least seven ways:

• “Reduced Flows,”

• “Rapid Flow Fluctuation,”

• “Inadequate Flushing Flows,”

BC HYDRO FINAL FACTUAL RECORD 19
• “Altered Water Quality,”

• “Entrainment,”

• “Flow Diversion,” and

• “Reservoir Drawdown.” (Submitters’ April 1997 Submission,

pp. 3-4).

These harmful impacts sometimes caused by hydroelectric operations are discussed in more detail below.

16. The Submission lists six specific instances in which it asserts that

BC Hydro’s operations’ “harming fish and fish habitat are well

known to both Hydro and government agencies.” (Submitters’

April 1997 Submission, p. 5). These instances involve Keenleyside

Dam/Norns Creek fan, Cranberry Creek, Revelstoke Dam,

Cheakamus River, Shuswap Falls Project, and Downton Lake.

(Submitters’ April 1997 Submission, p. 5). Several of these situations are discussed in more detail in the Expert Group Report,

attached as Appendix 8.

17. The Submission indicates that these six specific incidents “illustrate the nature and extent of the damage to fish and fish habitat

caused by Hydro’s operations across the province.” (Submitters’

April 1997 Submission, p. 6). In Appendix A, the Submission provides a “comprehensive review” of the alleged impact of Hydro’s

operations at each of 33 facilities. (Submitters’ April 1997 Submission, Appendix A).

18. The Submission asserts that “[BC] Hydro itself has concluded that

many of its projects violate the Fisheries Act” because various

impacts of BC Hydro’s operations harm fish habitat, such as inadequate instream flows, rapid fluctuation of flows, entrainment of

fish, passing fish over spillways, and operation of reservoirs. (Submitters’ April 1997 Submission, p. 6).

The Submission asserts that Canada, in particular its Department

of Fisheries and Oceans (“DFO”), the federal department responsible for the administration of the Fisheries Act, is aware of violations

of the Fisheries Act, and “has received frequent correspondence

from various Submitting Parties identifying both general concerns

regarding the impact of hydropower production on fish habitat,

and specific evidence that Hydro has contravened s. 35(1).” (Submitters’ April 1997 Submission, pp. 9-10).

20 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
19. The Submission alleges that the Party has failed to effectively

enforce the Fisheries Act. It states: “DFO. . . has failed, and continues

to fail, to enforce s. 35(1) against Hydro.” (Submitters’ April 1997

Submission, p. 10). In particular, it asserts that DFO has “only laid

two isolated charges . . . against [BC] Hydro since 1990, despite

clear and well documented evidence that Hydro’s operations have

damaged fish habitat on numerous occasions.” (Submitters’ April

1997 Submission, p. 1). The Submitters conclude that “[t]his submission provides clear evidence that the Federal Government is

failing to enforce s. 35(1).” The Submission states that:

In light of . . . the clear evidence of a decline in fish populations

and habitat, this enforcement record reveals a consistent failure by

the Federal Government to effectively enforce s. 35(1) against [BC]

Hydro . . . . (Submitters’ April 1997 Submission, p. 10).

20. The Submitters assert that “[t]he Federal Government has

enforced s. 35(1) against other individuals whose actions have

caused single incidents of damage that pale in comparison to that

caused by [BC] Hydro throughout B.C. on an ongoing basis.” (Submitters’ April 1997 Submission, p. 13). They further assert that

“[w]hile the Federal Government therefore appears willing to

enforce s. 35(1) against some individuals, its failure to enforce that

section against Hydro amounts to an effective exemption of Hydro

from compliance with the law.” (Submitters’ April 1997 Submission, p. 13).

21. The Submitters claim that licenses issued to BC Hydro under the

British Columbia Water Act have not been effective in preventing

harm to habitat or violations of Fisheries Act s. 35(1). Specifically,

they assert that “less than seven percent of those [British Columbia

Water Act] licenses contain any measures to protect the environment . . . .” (Submitters’ April 1997 Submission, p. 6). They also

assert that BC Hydro has “frequently violated the terms of some of

its water licenses.” (Submitters’ April 1997 Submission, p. 6).

II. A SUMMARY OF THE CANADIAN RESPONSE

22. In Canada’s July 1997 Response (the “Response”), Canada states

that it is effectively enforcing its environmental laws. (Canada’s

July 1997 Response, pp. 2, 13).

BC HYDRO FINAL FACTUAL RECORD 21
23. Canada asserts that the concept of effective enforcement under the

NAAEC is broad. It states that “Article 5 of the NAAEC recognizes

that enforcement encompasses actions broader than just prosecution and provides a non-exhaustive list of appropriate enforcement actions.” (Canada’s July 1997 Response, pp. 2, 13). Canada

claims that the Submitters’ definition of effective enforcement is

too limited in that it “equates enforcement directly with legal and

judicial sanctions.” (Canada’s July 1997 Response, p. 2, 13). It

further asserts that the Submission “fails to appreciate the comprehensive approach recognized in Article 5 and followed by

Canada.” (Canada’s July 1997 Response, pp. 2, 13).

24. Canada indicates that it “has determined that a range of compliance activities, from voluntary compliance and compliance agreements to legal and judicial sanctions, are the most productive in

terms of providing for the long-term protection of the environment

with respect to fish and fish habitat.” (Canada’s July 1997

Response, p. 2). Canada offers its perspective on the relative

effectiveness of different compliance approaches as follows:

In any regulatory regime, compliance and enforcement are comprised of a series of measures which can range from voluntary compliance to legal and judicial sanctions. Voluntary compliance and

compliance agreements and undertakings are deemed by Canada to

be the most productive in terms of providing for long-term protection

of the environment with respect to fish and fish habitat. The compliance methods being employed by Canada in British Columbia recognize the integrated and complex nature of the BCH system and of the

related fish and fish habitat issues. (Canada’s July 1997 Response,

p. 14).

Canada states:

As a result of this approach, a clear record of ongoing cooperative,

comprehensive, and productive studies and projects to enhance fisheries is evident . . . . The reports and studies [generated by Canada, the

Province of British Columbia, and BC Hydro] highlight a number of

complex issues which these parties are intent upon resolving. To the

extent that they lead to solutions through cooperation, voluntary

compliance, negotiation, publicity and persuasion, more compelling

enforcement is often unnecessary. (Canada’s July 1997 Response,

p. 2).

22 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Canada describes its future plans with respect to use of different

compliance promotion strategies as follows:

Canada intends to continue to pursue... cooperative solutions with

B.C. and BCH, and to use prosecutions judiciously. (Canada’s July

1997 Response, p. 15).

25. Canada indicates that “[m]ore compelling enforcement options

are available, such as authorizing terms and conditions, flow

opinions, administrative orders, and ultimately prosecutions, and

indeed Canada has made use of these more compelling instruments when required, as illustrated in Table 1.” (Canada’s July

1997 Response, p. 15. The table referenced is reproduced in paragraph 27 below).

With respect to use of such more compelling options, Canada

states:

Canada does not hesitate to utilize the full power of its laws to protect

fish and fish habitat, where the exercise of these powers is deemed by

Canada to be the appropriate response. Canada’s use of more compelling enforcement options is evident and contributes to a history of

significant enforcement activity under the Fisheries Act. (Canada’s

July 1997 Response, p. 2. See also p. 15).

26. Canada asserts:

Enforcement through prosecutions is a last resort after cooperation

and persuasion have failed. Immediate and widespread use of prosecution would be ineffective and counterproductive. Prosecutions

can be destructive of cooperative relations and wasteful of limited

resources that might better be used to produce solutions. (Canada’s

July 1997 Response, p. 15).

27. As part of its Response, Canada includes a table entitled “Orders

and Authorizations Issued to BC Hydro since 1990.” (Canada’s

July 1997 Response, pp. 16-17, Table 1). This table, reproduced

below, lists two types of authorizations, those issued under Fisheries Act s. 35(2) and those issued under Fisheries Act s. 32. Section

35(2) authorizations authorize harmful alteration, disruption, or

destruction of fish habitat. Section 32 authorizations authorize

destruction of fish. The Table also lists s. 22(3) minimum flow

orders. (Canada’s July 1997 Response, pp. 16, 17).

BC HYDRO FINAL FACTUAL RECORD 23
24 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

Table 1: Orders and Authorizations Issued to BC Hydro since 1990

[TAB 37]

Ss. 35(2) authorizations: harmful alteration, disruption or destruction

of fish habitat

S. 32 authorizations: destruction of fish

Ss. 22(3) orders: minimum flow orders

HABITAT MANAGEMENT UNIT, FRASER RIVER DIVISION,

NEW WESTMINSTER

Ss. 22(3) Order:

2 May 1997: Letter from Al Lill, (DFO, A/RDG) to Michael Costello

(BCH, President and CEO) regarding Fisheries Act flow order on the

Cheakamus River (Daisy Lake Dam). DFO issues an order to BCH

pursuant to s. 22(3) of the Fisheries Actfor the release of water from the

Daisy Lake Dam into the Cheakamus River equal to a minimum of

45 percent of the previous days inflow, into Daisy Lake, with a minimum daily flow of 5 cms released from Daisy Lake Reservoir.

MID-FRASER HABITAT MANAGEMENT UNIT, FRASER RIVER

DIVISION, KAMLOOPS

Ss. 35(2) Authorization:

18 March 1993: Letter from Heather Stalberg (DFO, Kamloops) to

Paul Higgins (BCH, Burnaby) regarding dredging Wilsey Dam

forebay, Shuswap River.

12 September 1993: Letter from Byril Kurtz (DFO, Salmon Arm) to

Jim Scouras (BCH, Burnaby) regarding replacement of penstock #2

in Wilsey Dam, Shuswap River.

29 October 1993: Letter from Heather Stalberg (DFO) to Jim Scouras

(BCH, Burnaby) regarding dredging Wilsey Dam forebay, Shuswap

River.

EASTERN B.C. UNIT, HABITAT MANAGEMENT, VANCOUVER

Ss. 35(2) and 32 Authorizations:

28 March 1994: Letter from Gordon Ennis (DFO, Chief, Eastern B.C.

Unit) to Hugh Smith and Paul Adams (BCH, Burnaby) regarding

ss. 35(2) Fisheries Act authorization for Norns Creek Fan (pilot

recontouring plan discharge reductions from Hugh Keenleyside
BC HYDRO FINAL FACTUAL RECORD 25

Dam). DFO authorizes under ss. 35(2) the alteration of habitat in order

to provide more abundant spawning habitat for rainbow trout downstream of Hugh Keenleyside Dam.

23 December 1994: Letter from Gordon Ennis (DFO) to Hugh Smith

and Paul Adams (BCH, Burnaby) regarding Columbia River

flows/levels. DFO authorizes under ss. 35(2) a flow decrease to 44,000

cfs below Hugh Keenleyside Dam contingent on monitoring and

funding of a remedial measures program to offset the impacts caused

by dewatering of whitefish eggs.

30 December 1994: Letter from Gordon Ennis (DFO) to Hugh Smith

and Paul Adams (BCH, Burnaby) regarding Columbia River

flows/levels DFO provides notification to BCH that their stated

intent to reduce the flow from 44,000 cfs (above) to 32,000 cfs at

Hugh Keenleyside Dam on 31 December 1994, will not be authorized

except under strict conditions, and alerted BCH to possible prosecutions under the Fisheries Act. Flow was reduced and whitefish eggs

dewatered and killed. A legal investigation was initiated by the province (MELP); however, no charges were laid.

30 November 1995: Letter from Gordon Ennis (DFO) to Paul Adams

(BCH, Burnaby) regarding Columbia River flow/levels. DFO authorizes under ss. 35(2) a flow reduction to 10,000 cfs for emergency flood

control purposes. This was contingent on monitoring and was effective until December 7, 1995.

13 February 1996: Letter from Gordon Ennis (DFO) to Paul Adams

(BCH, Burnaby) regarding Columbia River flow/levels. DFO authorizes a critical dewatering of fish habitat caused by a flow reduction of

15,000 cfs for emergency flood control purposes. This was contingent

on mitigation and monitoring, and was effective until February 12,

1996. DFO also requested voluntary action to “alleviate impacts

and/or survey brood year juvenile strength [of mountain whitefish].”

2 December 1996: Letter from Gordon Ennis (DFO) to Walter Udell

and Paul Adams (BCH, Burnaby) regarding authorizations pursuant

to ss. 35(2) and 32 of the Fisheries Act for Seven Mile Unit 4 Project.

DFO authorizes works at Seven Mile relating to the installation

and operation of a fourth turbine (Unit 4). Authorization conditions

included removal of migration barriers, habitat enhancement for

rainbow trout and bull trout at adjacent watercourses, monitoring

activities and flow releases for the support of fish.
26 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

Ss. 22(3) Order:

9 February 1995: Letter from Louis Tousignant (DFO, RDG) to John

Sheehan (BCH, President and CEO) regarding Fisheries Actflow order

on the Columbia River. On 9 February 1995, DFO receives notification

from BCH that they had decided, without authorization, to lower

flows in the Columbia River from the Hugh Keenleyside Dam from

24,000 cfs to 18,000 cfs. DFO was of the opinion that this reduction

in flow would not protect the eggs of kokanee salmon, mountain

whitefish, and rainbow trout that were present in the Columbia River.

DFO therefore ordered, pursuant to ss. 22(3) of the Fisheries Act, an

increase of discharge of water from Hugh Keenleyside Dam to 24,000

cfs.

5 May 1995: Letter from Paul Adams (BCH, Burnaby) to Gordon

Ennis (DFO) regarding BCH remedial works. BCH confirms their

commitment to compensation for the February, 1995 flow reduction.

25 October 1995: Letter from Brian Tobin to Glen Clark which

includes background information leading to the flow order; replies to

the BC position (including the statement . . . “We do not accept that the

[Columbia River] Treaty provides BC Hydro immunity from the

environmental provisions of the Canadian legislation”); and states

Brian Tobin’s belief that DFO has the constitutional and legislative

responsibility to protect the fisheries resource tempered by the

Department’s “. . . desire to work cooperatively with BC Hydro and

key provincial agencies in ensuring the conservation and protection

of our fisheries.”

Letter to BC Hydro Requesting Flows:

18 March 1993: Letter (double registered) from Gordon Ennis (DFO)

to Gary Young (BCH, System Control Centre) regarding flows necessary to protect Norns Fan spawners. The letter states that: (1) DFO

field staff observed dewatered redds 18 March 1993; (2) DFO does not

approve or support any flow regime from Hugh Keenleyside Dam

that impacts spawning habitat or threatens the safety of ova; and, (3)

BCH is to submit to DFO a flow proposal to address spawning and

incubation requirements and a mitigation plan to protect existing

redds and/or ova.

S. 32 CHARGES:

Since 1990 there have been a total of 7 agencies/corporations charged

(total of 10 counts) under s. 32 of the Fisheries Act. BCH was charged

twice with a total of 5 counts.
28. Canada identifies a total of five “[e]nforcement and [c]ompliance

[s]trategies” in addition to prosecutions: 1) New Projects, 2) Emergency Operations, 3) Regional Technical Committees, 4) Water Use

Planning Initiative, and 5) Water Quality Guidelines. (Canada’s

July 1997 Response, pp. 18-21). These five strategies are summarized in paragraphs 29-33 below.

29. New Projects. Canada describes its strategy for new projects, also

referred to as “new and changing operations,” as involving three

main features: 1) “thorough assessment” of such projects pursuant

to the habitat protection provisions of the Fisheries Act, the Canadian Environmental Assessment Act (CEAA), the DFO Policy for the

Management of Fish Habitat, and the DFO Habitat Conservation

and Protection Guidelines; 2) requiring the proponent to submit

mitigation, compensation, and monitoring plans; and 3) when

Fisheries Act and CEAA responsibilities are satisfactorily addressed, issuance of ss. 32 and 35(2) authorizations as appropriate.

(Canada’s July 1997 Response, p. 18). Canada’s approach to new

projects is discussed in more detail in Section III.B.3.4 below.

30. Emergency Operations. Canada describes its approach to emergency situations as involving four features: 1) Canada applies s.

7(1)(c) of the CEAA and issues as appropriate Fisheries Act s. 22

flow orders or s. 35(2) authorizations to deal with any harmful

alteration, disruption or destruction of fish habitat; 2) it negotiates

mitigation and compensation measures to the extent possible, considering the situation; 3) it usually requires monitoring to document any impacts and the effectiveness of mitigation; and 4) once

the emergency is over, Canada “requests the proponent to develop

appropriate mitigation procedures and compensation measures to

the satisfaction of DFO in anticipation of a similar future emergency.” (Canada’s July 1997 Response, p. 18). Canada’s approach

to emergencies is discussed in more detail in Section III.B.3.5

below.

31. Regional Technical Committees. Canada describes Regional Technical Committees (RTCs) as an outgrowth of an umbrella committee established in 1988 by the BC Ministry of Environment Lands

and Parks (MELP), BC Hydro, and Canada to look at fish and

hydroelectric issues. (Canada’s July 1997 Response, p. 18). Canada

indicates that a Steering Committee was formed to deal with policy

level issues, and RTCs were created to address technical issues.

Canada advises that the RTCs were “tasked primarily with identiBC HYDRO FINAL FACTUAL RECORD 27
fying existing fisheries concerns and reviewing mitigation and

enhancement options at existing hydro facilities in relation to

the Electric System Operation[s] Review.” (Canada’s July 1997

Response, p. 19). Canada reports that it is

presently working with provincial water licensing authorities in the

review of B.C. Provincial water licenses for hydroelectric projects that

were issued mostly during the 1960s and the informal agreement on

the lower Campbell River to determine if these provincial licenses

adequately address the existing requirements for fish protection.

(Canada’s July 1997 Response, p. 19).

Canada’s participation in these committees is discussed in more

detail in Section III.B.3.6 below.

32. Water Use Planning (WUP) Initiative. Canada identifies the Water

Use Planning (WUP) initiative as a fourth compliance and enforcement strategy. The Province of British Columbia launched the

WUP initiative in November 1996, to “deal with the fish and other

non-power issues at all the hydroelectric facilities, where the priority issue is fish.” (Canada’s July 1997 Response, p. 20). Canada

describes the process as follows:

The process will involve a review of the BCH water licenses, and the

development of water use plans for each of the facilities. The plans

will likely mean, where required, reallocation of water for fish and

mitigative measures (e.g., habitat restoration, etc.), to resolve the

long-standing fish impact issues. The plans will also result in changes

to the water licenses, and changes to the hydro facility System Operating Orders (Canada’s July 1997 Response, p. 20).

Canada explains that the WUP process came about for three reasons:

1. The Electric System Operation[s] Review undertaken by BCH,

and the provincial response to the Review, that the fish issues

had not been adequately addressed.

2. The findings of the Ward review indicated that some operations

may not be in compliance with the terms of their licenses. . . .

3. Public concern over high profile habitat impacts, e.g., the loss of

spawning gravel habitat in Campbell River[;] forced spills; the

Downton Lake deep drawdown; and the draft Alouette and

Campbell River Water Use Plans. (Canada’s July 1997 Response,

p. 20).

28 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Canada provides the following information concerning the timetable for implementation of the WUP initiative:

When the WUP was announced in November 1996, ten hydroelectric

developments were identified as first priorities for review over

the following three years: Cheakamus, Campbell, Bridge, Stave,

Shuswap, Puntledge, Buntzen, Ash, Jordan, and Walter Hardman. At

the same time, B.C. announced that all of BCH’s 34 facilities would be

reviewed over the next five years leading to new water use plans and

revisions to the water licenses. (Canada’s July 1997 Response, p. 20).

Canada indicates that a Guideline document “is being prepared...

to give some direction in preparing water use plans.” (Canada’s

July 1997 Response, p. 20). As discussed below, such a document

was issued in February 1999. Canada’s approach to the WUP initiative is discussed in more detail in Section III.B.3.2 below.

33. Water Quality Guidelines. Water Quality Guidelines are the fifth

compliance and enforcement strategy Canada identifies in its

Response. Canada indicates that it “has been working on the

development of Water Quality Guidelines” in partnership with the

province. (Canada’s July 1997 Response, p. 21). More specifically,

Canada indicates that it is working on the development and implementation of the BC Water Quality Guideline for Dissolved Gas

Supersaturating, and that this guideline is ready for imminent

publication. (Canada’s July 1997 Response, p. 21). Additional

information concerning Water Quality Guidelines is provided in

Section III.B.3.7 below.

34. As noted above, the Submission provides information on seven

types of harmful impacts that hydroelectric operations may have

on fish habitat. These seven types of impacts, again, are as follows:

• “Reduced Flows,”

• “Rapid Flow Fluctuation,”

• “Inadequate Flushing Flows,”

• “Altered Water Quality,”

• “Entrainment,”

• “Flow Diversion,” and

• “Reservoir Drawdown.” (Submitters’ April 1997 Submission,

pp. 3-4).

BC HYDRO FINAL FACTUAL RECORD 29
In response to the information contained in the Submission, Canada provides information on each of the seven impacts that hydro

operations may have on fish habitat, including Canada’s perspective on these impacts. (Canada’s July 1997 Response, pp. 23-25).

Canada makes three overall statements. First, it asserts that each of

the seven types of harm that dams may cause to fish habitat “ha[s]

the possibility of resulting in HADD [harmful alteration, disruption or destruction] of fish habitat depending upon the particular

situation and circumstance, however that is not to say that any one

of the installations is actually producing any or all of the aforementioned [seven] impacts.” Second, it states that “[t]he purpose of the

Water Use Planning Process is to investigate impacts at each facility and develop proposals for operational changes that take into

consideration the system wide effects of facility specific changes.”

Third, it indicates “[w]here impacts are currently understood, or

clearly demonstrated, a range of activities have been undertaken to

try to mitigate the impacts.” (Canada’s July 1997 Response, p. 22).

Canada then addresses each of these seven impacts in detail:

1. Submitted: Reduced Flows: A reduction in the flow released downstream

of a facility can result in decreased habitat quantity due to a reduction in

stream volume and total wetted area in the stream. Reduced flows may also

cause a change in stream temperature, depending on the depth of outflow to

the reservoir thermocline and the exchange rate in the river.

Canada’s Response:

Reduced Flows: The Submitters’ statements are, as far as they go, correct. However, Canada, B.C., and BCH are also considering other possible impacts of reduced flows including:

a) less flushing of fines from downstream gravels;

b) reduced velocities for smolt downstream migration;

c) magnified surface and substrate ice build-up;

d) altered suitability of velocities and depths for spawning; and

e) less waste dilution.

It should be noted however, that in certain circumstances, reduced

flows can provide some benefits, e.g., improved over winter survival

and early fry rearing under stabilized flows.

30 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
2. Submitted: Rapid Flow Fluctuation: The rate of change of flow through a

dam is known as the ramping rate. A ramping rate that is too high during

flow increase may displace fish from favored habitats, while a rapid decrease

in flows can leave fish and benthic invertebrates (food sources) out of water or

trapped in isolated pools. Rapid changes in flow can also disrupt fish spawning activity.

Canada’s Response:

High ramping rates do not necessarily cause a HADD of fish habitat

as channel geometry and fish utilization dictate the amount of habitat

affected. For example, the Revelstoke Dam has one of the highest

ramping rates in the province, but the trapezoidal channel shape,

habitat characteristics, and predominance of adult fish over juveniles

and eggs suggest that the ramping does not cause a HADD. A mitigated ramping rate alleviates some stranding concerns, and these are

adopted for certain BCH operations. For example, during the 1996

spill at GM Shrum on the Peace River, salvage efforts found only a

limited number of fish stranded after ramping rates were held to 10

cm/hr, as measured by the stage downstream. However, flow fluctuations, regardless of rate of change, may give rise to egg desiccation in

dewatered spawning areas.

3. Submitted: Inadequate Flushing Flows: Inadequate flushing flows can

reduce productivity by permitting sediment buildup. At higher discharges, a

river reconditions its natural channel, and flushes out accumulated sediment. The limited and regulated flow regimes at many of Hydro’s dams do

not incorporate flushing flows.

Canada’s Response:

Inadequate Flushing Flows: As above for “reduced flows,” this problem can create a HADD. In rivers such as the Columbia River, that

have relatively little sediment input, frequent high flows and lack of

flushing flows are not seen to be a problem. Where problems are

created, compensation may be possible by loosening the substrate

through the use of scarification. BCH is conducting a pilot scarification project which may partially compensate for sediment accumulation and substrate armoring.

4. Submitted: Altered Water Quality: When water is impounded, water

temperature, dissolved oxygen content, total gas pressure, sediment and

nutrient levels, pH and dissolved metal concentrations can all change.

Aquatic organisms that depend on physical water parameters, including

both fish and the species they feed on, can be adversely affected by these

changes in water quality.

BC HYDRO FINAL FACTUAL RECORD 31
Canada’s Response:

Altered Water Quality: The submitters’ arguments are generally

valid. Not all of the concerns apply to all facilities, but many probably

occur in some form at some facilities. DFO is participating in the management of some of these concerns. For example, DFO, together with

B.C., BCH, and Cominco, are participating in a TGP reduction exercise by examining TGP production of spillways, ports, and turbines at

various dams, and determining which configurations generate the

least TGP. A TGP model, similar to one developed for Bonneville

Power Administration, is being developed for operations on the

Canadian portion of the Columbia River.

5. Submitted: Entrainment: Fish that inhabit waters in the proximity of

power intakes or spillways run the risk of being drawn into turbines or over

spillways. For fish that become entrained in turbines, mortality or severe

wounding may result from contact with rudder blades. In addition, death

may result from the sudden water pressure drop as water passes through the

turbine, which can result in impacts similar to those of gas bubble disease.

Canada’s Response:

Entrainment: Entrainment can be a problem at dams. Mitigation in

the form of fish screens or other fish avoidance devices can be prohibitively expensive. However, sometimes operational changes, such as

voluntary measures taken at the WAC Bennett Dam, can reduce

entrainment problems. Strictly speaking this is not a HADD and

therefore not subject to regulation under Subsection 35 (1) of the

Fisheries Act. The impact in this case is directly on the fish itself and

not its habitat.

6. Submitted: Flow Diversion: Diversion of water from one stream for use in

power generation in another basin can cause the harmful lowering of flows

and interfere in the ability of fish to identify and return to home streams when

spawning.

Canada’s Response:

Flow Diversion: The flow diversion concerns centre on the small

power projects on the lower mainland and Vancouver Island. These

will be subjected to the WUP process. There are no transbasin water

diversions in Eastern B.C. from BCH operations, though subbasin

water diversions occur at two small hydroelectric operations, Walter

Hardman/Cranberry Creek and Whatshan Dam, dewatering portions of the stream bed.

32 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
7. Submitted: Reservoir Drawdown: Drawdown of a storage reservoir typically reduces productivity in the shallow, littoral areas of the lake by periodically drying out these areas. This results in mortality of aquatic vegetation

and bottom-dwelling organisms that comprise the aquatic food chain. In

lakes with fish species that spawn along the shorelines, reservoir drawdown

may either prevent spawning or result in the stranding of eggs depending on

the extent and timing of the drawdown. Many fish species depend on tributary habitat for spawning and/or rearing, and decreased lake levels may

inhibit tributary access for these species. Finally, reservoir drawdown may

reduce water quality due to wave-induced mobilization of sediment in the

drawdown zone.

Canada’s Response:

Reservoir Drawdown: The submitters’ arguments are generally

valid. DFO, B.C., and BCH are also considering whether continual

reservoir level fluctuation can result in stranding of fish, preclusion of

littoral vegetation development, reduced invertebrate production,

and shoreline sloughing from wave wash and associated sediment

release. (Canada’s July 1997 Response, pp. 23-25).

35. Canada provides information on each of the 39 specific incidents of

harm to fish habitat in violation of s. 35(1) alleged in the Submission. (Canada’s July 1997 Response, pp. 25-58). Information on

several of these incidents is discussed in some detail in the Expert

Group Report, attached as Appendix 8.

36. Canada summarizes the federal/provincial relationship on the

administration of the Fisheries Act. (Canada’s July 1997 Response,

p. 6). Canada notes that it is a federal state. It indicates that the Constitution Act, 1867 sets out the responsibilities of the federal and

provincial governments. It further indicates there is “shared legislative jurisdiction” between these two levels of government “with

respect to laws in relation to environmental matters.” In particular,

Canada reports that BC Hydro “generally falls within provincial

jurisdiction, but is subject to federal legislation of general application such as the Fisheries Act.” (Canada’s July 1997 Response, p. 6).

Canada advises that either the federal or the provincial level of

government may carry out compliance activities related to protection of fish habitat. Canada describes the respective authorities and

responsibilities of these two levels of government:

Compliance activities related to protection of fish habitat can be carried out by either the provincial or federal level of government. In the

BC HYDRO FINAL FACTUAL RECORD 33
case of B.C., provincial compliance activity may be carried out under

provincial legislation or under powers exercised by the province

under the federal Fisheries Act. Federal compliance activity is rooted

in the constitutional responsibility for fisheries and is expressed

through the Fisheries Act. Collectively these compliance activities are

identified as “enforcement” under Article 5 of the NAAEC. (Canada’s

July 1997 Response, p. 6).

Canada highlights the importance of a cooperative relationship

between provincial and federal authorities in protecting fish habitat and promoting compliance with relevant legal requirements,

stating:

In B.C., anadromous and marine species and their habitats are managed by Canada, while B.C. exercises responsibility for managing

freshwater species. B.C. also undertakes certain activities with

respect to management of freshwater habitats, although Canada

retains responsibility for administering the habitat protection provisions of the Fisheries Act. The result is a complex administrative environment where cooperation, common goals, and good faith are

essential. (Canada’s July 1997 Response, p. 7).

Canada indicates that while there is a partnership between the

province and the federal government, Canada remains ultimately

responsible for administering the habitat protection provisions of

the Fisheries Act. (Canada’s July 1997 Response, p. 7).

37. Canada describes the BC Hydro system as an “integrated operating system, requiring complex coordination.” (Canada’s July 1997

Response, p. 8). It notes that this “huge system” is inter-provincial

and international in scope. It further notes that the BC Hydro facilities were built mostly in the 1960s and predate the 1977 enactment

of the Habitat Protection provisions of the Fisheries Act and the

entry into force of the NAAEC in 1994. (Canada’s July 1997

Response, p. 8; 11 May 2000 Comments of Canada, Appendix 10).

Canada summarizes the challenge posed by the size and complexity of the system to Canada’s fulfilling its responsibility under the

Fisheries Act to protect fish habitat:

In general, it is difficult to institute changes to instantly promote or

protect any one of many competing interests or values served by the

system and jurisdictions. However, despite this overlay of complexity, Canada does not hesitate to utilize the full power of its laws to

protect fish and fish habitat where the exercise of these powers is

deemed by Canada to be the appropriate response. (Canada’s July

1997 Response, p. 8).

34 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
III. A SUMMARY OF OTHER RELEVANT INFORMATION,

AND FACTS PRESENTED BY THE SECRETARIAT2

A. An Overview of the Process Used to Solicit and Develop

Information

38. The Submission presents a particularly challenging context in

which to obtain information relating to whether a Party is failing to

effectively enforce its environmental laws.3 It involves a substantial number of hydroelectric operations, located in different parts

of the Province of British Columbia. (Appendix 7 contains a map of

the BC Hydro System.) The Submitters claim that these hydroelectric operations are harming fish habitat, and thereby violating

Canadian environmental law, in several different ways (reduced

flows, rapid flow fluctuation, flow diversion, etc.). In reply, Canada has identified a wide array of responses to the operations’

alleged violations of the Fisheries Act.

39. The Secretariat retained the services of Stephen Owen, Lam Professor of Law & Public Policy at the University of Victoria, to assist it

in developing a process for obtaining information in light of this

complicated context. Professor Owen had developed an understanding of the citizen submission process through his designation

by Canada as a “senior environmental expert” to serve on the Independent Review Committee (IRC) that conducted a four-year

review of the operation and effectiveness of the CEC. (Council Resolution 97-06). Professor Owen is widely recognized for his expertise on process design. He has held a series of high level positions in

British Columbia. A brief summary of Professor Owen’s background, taken from the IRC report, is provided below:

Stephen Owen is the Lam Professor of Law and Public Policy and the

Director of the Institute for Dispute Resolution at the University of

Victoria. He is also a Commissioner of the Law Commission of

Canada. Professor Owen has previously been the Deputy Attorney

BC HYDRO FINAL FACTUAL RECORD 35

2. As discussed above, the Secretariat has consolidated into a single section the summary of other relevant factual information and facts it is presenting. Thus, this Section of the Factual Record contains information referenced in Guideline 12.1(c) & (d).

Documents referenced in this Section are available for consultation in the Secretariat’s Montreal office, as are other documents submitted in connection with this

Submission.

3. For the notion that the issue of environmental enforcement is inherently quite complex, see Johnson, Pierre-Marc and Andre Beaulieu. 1996. The Environment and

NAFTA: Understanding and Implementing the New Continental Law, 193. Washington

D.C.: Island Press (observing that “[e]nvironmental enforcement is an enormously

complex issue”).
General, Commissioner of Resources and Environment, Ombudsman, and Executive Director of the Legal Services Society of British

Columbia. He has been an advisor to numerous international agencies on environmental, human rights and conflict resolution issues in

Africa, Southeast Asia, Latin America and Eastern Europe; and was

President of the International Ombudsman Institute from 1988 to

1992, representing Ombuds offices in more than 60 countries. (IRC

Report, Annex 2, para. 54).

40. Because the Submission and Response raise a series of complex,

highly technical issues, the Secretariat convened an Expert Group

comprised of individuals with expertise in three relevant areas:

• William Best, an expert in hydroelectric operations. Mr. Best is

a graduate of the University of British Columbia Faculty of

Applied Science in Electrical Engineering and a member of the

Association of Professional Engineers of British Columbia. He

has served as a member of the Executive Committee of the Canadian Electrical Association and as a Director of the Canadian

Institute of Energy and of the Northwest Public Power Association. Mr. Best also has been a Commissioner of the BC Utilities

Commission. Mr. Best served for more than 30 years as an official with BC Hydro, where he held a series of high-ranking positions. He was a senior BC Hydro executive in the following

positions: Vice President, Electrical Operations (July 1975-1981),

Vice President, Corporate (March 1981 – April 1984), Executive

Vice President, Business Operations (April 1984 – October

1985), Senior Vice President, System Development and

Research (October 1985 – December 1986), Vice President, System Planning (December 1986 – December 1987), Vice President, Customer Services (January 1988 – April 1988), and Vice

President (April 1988 – September 1988).

• Dean David Cohen, an expert in regulatory and compliance

matters. Dean Cohen obtained his Bachelor of Science degree at

McGill University, his LL.B. at the University of Toronto, and

his LL.M at Yale Law School. He served as Dean of the University of Victoria School of Law from July 1994 until May 1999, at

which point he resigned to become the Dean of Pace University’s School of Law. Dean Cohen teaches in the areas of law and

regulatory policy and has written extensively in a range of areas

including environmental policy and regulation.

• Michael Healey, an expert in fish habitat-related issues. Professor Healey received Bachelors of Science (B.Sc.) and Masters of

36 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Science (M.Sc.) degrees in Zoology from the University of British Columbia in 1964 and 1966 and a Ph.D. in Natural History

from Aberdeen, Scotland in 1969. Professor Healey is Professor

in the Institute for Resources and Environment, the Fisheries

Centre and the Department of Earth and Ocean Sciences, UBC.

From 1990 to 1995 he was Director of the Westwater Research

Centre at UBC. Prior to 1990, Professor Healey was a senior

research scientist with the Department of Fisheries and Oceans.

Professor Healey has 25 years of experience as a government scientist and academic in research and analysis of fish populations

and fisheries-related scientific issues. He has served as a consultant to government and industry in Canada and the United

States on the management of fish and fish habitat.

The Expert Group produced a report containing information it

developed. This report is attached to the Factual Record as Appendix 8. The Factual Record also incorporates information developed

by the Expert Group, as referenced below.

41. The Secretariat identified four key stakeholders in this Factual

Record process: Canada, the Submitters, the Province of British

Columbia and BC Hydro (collectively, the “Stakeholders”). The

Submitters and Canada have an obvious, particularly strong interest in the Factual Record process in their respective capacities as

the parties that launched the process and the Party whose enforcement practices are under review. The Province of British Columbia’s role as a partner in many of Canada’s initiatives and its

independent responsibilities for water resources management,

including regulation of BC Hydro operations, gives it a key interest. BC Hydro, the operator of the dams at issue, has a strong interest as well. The Secretariat made several efforts to obtain

information from each of these Stakeholders.

42. In a letter dated 18 December 1998, the Secretariat invited the four

Stakeholders to provide information both orally and in writing.

(The documents referenced in this paragraph are attached as

Appendix 1.) The Secretariat indicated that it would accept written

comments until 23 February 1999. The Secretariat further advised

the Stakeholders that it was convening an Expert Group to assist it,

and the Secretariat invited each of the four Stakeholders to meet

with, and present information to, the Expert Group during the

week of 11 January 1999. As noted below, the Secretariat subsequently extended both the time period for submitting comments

and the time for the Stakeholders to meet with the Expert Group.

BC HYDRO FINAL FACTUAL RECORD 37
43. The Secretariat sent out two other documents to the Stakeholders

on 18 December 1998, in addition to the introductory letter referenced in the preceding paragraph. The Secretariat distributed a

Synopsis (Appendix 2), which provided an overview of the Article

14 process and the process the Secretariat intended to use to

develop information for consideration in the Factual Record. The

Synopsis states:

It is the Secretariat’s responsibility, pursuant to the instruction of the

Council, to prepare a draft factual record relating to the effectiveness

of Canada’s enforcement practices. In doing so, the Secretariat will

review the information the Submitters and Canada have already provided. The Secretariat will develop additional information by, among

other activities, reviewing the legal and policy context associated

with the alleged violations, developing information by working with

independent experts, and obtaining information from interested

stakeholders.

In particular, an Expert Group will be convened and asked to provide

information concerning the effectiveness of the Canadian approach to

enforcement. Further, stakeholders (e.g., the Submitters, Canada,

British Columbia, and BC Hydro) will have the opportunity to

provide information concerning the effectiveness of the Canadian

approach to enforcement. Each of the major stakeholders listed above

will have an opportunity to meet with, and provide information to,

the independent experts in mid-January during the experts’ initial

round of meetings. The Secretariat also will accept written comments

on the effectiveness of Canadian enforcement efforts until February

23, 1999. (Appendix 2, para. 2).

44. The Secretariat also distributed a document on 18 December 1998

entitled Scope of Inquiry (Appendix 3), to focus the information-gathering process and thereby enhance the efficiency and

effectiveness of the effort to develop information. The Scope of

Inquiry specifically outlined the types of information the Secretariat was interested in developing:

This document is intended to promote development of information

regarding whether Canada has been effectively enforcing its environmental laws.

. . . Specific BC Hydro operations for which the Secretariat is seeking

information are identified in the Submission and in the Response.

Please be aware that the Council directed the Secretariat not to consider issues relating to the BC Hydro facilities in the Bridge River

38 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
hydroelectric system, composed of the Lajoie, Terzaghi, and Seton

dams and their respective reservoirs. Therefore, the Secretariat is not

seeking information with respect to these facilities or their respective

reservoirs.

As indicated above, the focus of the Secretariat’s informationgathering process is on whether Canada has been effectively enforcing its environmental laws. The following types of information, especially information beyond that already provided to the Secretariat,

are particularly relevant:

• Information concerning the nature of the incidents or alleged

violations identified in the Submission and Response and their

impacts on fish habitat;

• Information relating to the nature of the Canadian responses to

these incidents; and

• Information relating to the effectiveness of these responses. Such

information may include, among other things, information relating to the strengths and weaknesses of a particular response or

responses in: a) preventing harmful impacts from continuing,

reducing the severity of continuing impacts, and/or reducing the

likelihood of impacts continuing; b) preventing harmful impacts

from recurring in the future, reducing the likelihood of recurrence,

and/or reducing the impact of any future incidents; or c) repairing

or otherwise redressing any adverse impact to fish habitat caused

by incidents. (Appendix 3, para. 1-2).

The Secretariat included additional detail in the Scope of Inquiry

concerning the types of information it was interested in developing by quoting excerpts from its April 1998 Notification to Council:

The following five excerpts, quoted directly from the Secretariat Recommendation to the Council for development of a Factual Record,

illustrate the types of issues that persist regarding the Submitters’

allegations. The text in bold (which is, again, quoted from the Secretariat’s earlier document) in particular suggests the kinds of information that will be especially relevant to the question of the effectiveness

of the Canadian approaches.

1. The Submitters allege that in the summer of 1996, BC Hydro

dewatered Cranberry Creek, killing and stranding trout over a 10 km

section. Canada’s Response states that the Walter Hardman development, which affects Cranberry Creek, is a priority for the WUP initiative, and that DFO has participated in the development of interim

operating orders, which are not yet in effect. It is not clear from the

BC HYDRO FINAL FACTUAL RECORD 39
Response what specific enforcement action Canada undertook (and

the effectiveness of that action) in response to the incident at Cranberry Creek. Without the benefit of that information, including

information in respect of Canada’s enforcement policies, it is difficult to evaluate whether there has been effective enforcement with

respect to the incident at Cranberry Creek or the other specified

incidents in the Submission.

2. Similar questions apply to allegations which relate to ongoing

operational problems. For example, the Submission suggests that

with respect to the Shuswap Falls project, negative effects have

resulted from low winter flows, dewatering, rapid flow ions,

increased sediment levels, and reduced access, as well as impacts on

benthic productivity. In response, Canada lists a number of actions

taken, including the following: (a) commissioning a study on the

impacts of ramping down on flows; (b) the development of a rule

curve which BC Hydro is currently declining to use; (c) DFO’s verbal

statement to BC Hydro that the flow regime proposed by BC Hydro is

unacceptable; and (d) DFO’s request to BC Hydro for additional time

to monitor work such as flash board removal. In addition, Canada

refers to a request by the BC Ministry of Environment, Lands and

Parks, not acceded to by BC Hydro, that the impacts of ramping on

invertebrates be examined. Again, little information is provided on

the effectiveness of these actions to ensure compliance with the

law.

3. The Submission states that the Bennett Dam and the G.M. Shrum

Station are associated with a decline in fish productivity, rapid flow

fluctuations causing strandings, elevated gas levels and sedimentation. Canada responds that:

DFO was not involved at the time of construction in the 1960s. BC

Hydro has not requested Fisheries Act authorization for the project. DFO’s Eastern BC Habitat Unit was formed in 1990, two

decades after operations were established at these facilities.

These statements do not appear germane to the issue of whether

Canada is failing to currently effectively enforce its environmental

laws. Canada’s Response does not appear to be directed to the allegation of a present, continuing failure to effectively enforce its law.

More information is therefore required. Canada also asserts that the

negative impacts of facilities at the Bennett Dam are offset, at least

in part, by the Peace/Williston Compensation Program. It is unclear

that compensation is of any relevance to the effective enforcement

of Canada’s environmental laws.

40 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
4. Another example is the allegation respecting the Keenleyside

Dam. The Submission states that complete shut down of flows in

April 1990 dewatered and stranded rainbow trout and kokanee fry on

the Norns Creek fan. Canada has responded that this event cannot be

the subject of an Article 14 submission, since it occurred before the

NAAEC came into force. The Secretariat concurs, and recommends

that a factual record not be prepared in respect of this specific allegation.

However, if a situation arising in the past continues to exist, it may be

the subject of an Article 14 submission. For example, if BC Hydro

operations continue to damage fish habitat, it makes no difference if

those activities were commenced prior to the entry into force of the

NAAEC. As noted above, the Secretariat recognizes that a present

duty to enforce may originate from a situation which continues to

exist. If the construction of facilities in the past has led to a state of

affairs which “has not ceased to exist,” then the facts surrounding

this condition may be the subject of a factual inquiry.

5. In asserting that Canada has failed to effectively enforce s. 35(1)

of the Fisheries Act, the Submitters point to the fact that only two prosecutions have been undertaken against BC Hydro since 1990. Canada,

in its response, suggests that it undertakes a variety of activities

which, when taken together, constitute effective enforcement of its

environmental law. The Secretariat is mindful of the varied principles

and approaches that can be applied to a definition or application of

the term “effective enforcement.” For example, under certain circumstances, other enforcement measures may be deemed more effective

in securing compliance than an exclusive reliance on prosecutions.In

that regard, it is not clear how Canada selects its enforcement

responses to secure compliance with its environmental law.

In summary, Canada’s response does not disclose sufficient factual

information regarding the specific enforcement activity undertaken by Canada in each of the alleged incidents and the effectiveness of that activity in ensuring compliance with its environmental

law. (Appendix 3, para. 2-4).

In sum, the 18 December 1998 Scope of Inquiry sought to promote

efficient provision of information for consideration as part of the

Factual Record through its reference to the April 1998 Notification

to Council. This Notification identified two key types of information—information concerning the nature of Canada’s enforcement

activities and information concerning the effectiveness of those

activities in ensuring compliance with Canadian environmental

law.

BC HYDRO FINAL FACTUAL RECORD 41
45. On 22 January 1999 a letter was sent to the Stakeholders notifying

them that the Factual Record would focus particular attention on a

limited subset of six BC Hydro facilities:

• W.A.C. Bennett/Peace Canyon,

• Keenleyside,

• Shuswap Falls,

• Cheakamus,

• Walter Hardman, and

• John Hart. (22 January 1999 Letter, Appendix 1).

The letter explained the focus as follows:

The experts believe that a focus on these facilities will enable them to

develop information concerning the primary types of adverse

impacts on fish habitat sometimes caused by hydroelectric operations

and the full range of Canada’s responses. Further, this focus will

enable the experts to develop information concerning the system as a

whole and it will capture the major watersheds involved. The experts

are interested in developing information concerning the nature of the

impacts on fish habitat caused by the BC Hydro operations’ alleged

noncompliance, the types of actions the government has taken to

reduce the impacts, and the extent to which the government’s actions

and BC Hydro’s efforts have been successful in reducing impacts. (22

January 1999 Letter, Appendix 1).

The letter requested that the Stakeholders identify any other facilities that should be selected.

46. The Expert Group met on 26 January 1999 in Vancouver. The Sierra

Legal Defence Fund (SLDF) presented information to the Expert

Group. The other Stakeholders were invited to attend and observe.

BC Hydro representatives were present.

47. A set of written Questions was distributed to the Stakeholders on 3

February 1999 (“3 February 1999 Questions,” contained in Appendix 4).

48. The Expert Group met in the afternoon of 10 February 1999 in Vancouver. BC Hydro presented information to the Expert Group during this meeting. Other Stakeholders were invited to attend and

observe and Provincial officials did so.

42 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
49. The Secretariat made efforts to schedule presentations by Canada

and the Province of British Columbia to the Expert Group. One

such presentation was scheduled for 11 February 1999, for example, but this presentation was postponed at Canada’s request. No

such presentation was ever made.

50. On 18 February 1999 a letter was sent to the Stakeholders indicating that due to the changes in meeting dates, the date for submitting written submissions to the Expert Group and Secretariat had

been extended from 23 February 1999 to 8 March 1999. (See 18 February 1999 Letter, Appendix 1). The date for submitting written

submissions to the Expert Group and Secretariat was later

extended from 8 March 1999 to 22 March 1999. Written submissions were received from Canada, BC Hydro, the Province of British Columbia, SLDF, Earthjustice, the Water Use Plan

Management Committee (made up of members from Canada, BC

Hydro and the Province of British Columbia), and the Athabasca

Chipewyan First Nation.

51. On 21 April 1999 a letter was sent from the Secretariat to Canada

and the Province of British Columbia requesting follow-up information based on the information provided in their March 1999

Submissions (the “21 April 1999 Questions”). A copy of this letter

was sent to BC Hydro and the Submitters. The Secretariat received

a response to this request, dated 11 June 1999 (“11 June 1999

Response to 21 April 1999 Questions”). This response was drafted

by DFO (responses to questions #1-4) and the Water Use Plan Management Committee (responses to questions #5-9). The Secretariat

considered the information referenced in this paragraph and the

preceding one, as well as other information furnished by Canada

and others.

52. Because much of the Factual Record, based on the Council Resolution, concerns the nature of Canadian enforcement efforts and the

effectiveness of those efforts, the Secretariat contacted the government of Canada on several occasions in an effort to schedule meetings with knowledgeable government officials in order to make

the Factual Record as comprehensive and accurate as possible.

Such meetings never occurred and the Secretariat developed as

accurate and complete a Factual Record as possible under these

circumstances.

BC HYDRO FINAL FACTUAL RECORD 43
53. In addition to its efforts to obtain information from the Stakeholders, the Secretariat took several actions to keep other interested parties apprised of the status of the Factual Record process.

The Secretariat notified the public of its opportunity to participate

in the process. The Secretariat placed the documents referenced

above (the 18 December letter, the Synopsis, and the Scope of

Inquiry, etc.) on the CEC web site and it established a document

repository in Victoria, British Columbia. On 19 January 1999 the

Secretariat sent a memorandum to the Joint Public Advisory

Committee (JPAC) requesting submission of any information that

might prove relevant for the preparation of the Factual Record.

B. Presentation of Technical, Scientific, and Other Information

that was Publicly Available, Submitted to the Secretariat, or

Developed by the Secretariat or by Independent Experts

54. As noted above (see paras. 6, 44 above), the Secretariat’s 27 April

1998 Notification to Council indicates that a factual record should

be developed for this submission in order to obtain more information concerning the nature and effectiveness of Canada’s enforcement practices intended to address the harm to fish habitat caused

by BC Hydro operations. The Secretariat presents here four of the

central facts concerning these topics that are covered in more detail

below.

• First, in recent years Canada has used a variety of enforcement

strategies in an effort to promote BC Hydro’s compliance with

Fisheries Act s. 35(1) by reducing the harm to fish habitat caused

by BC Hydro operations. Some progress has been made through

these efforts to address situations in which harm has occurred or

is occurring. The Water Use Planning (WUP) process, discussed

below and currently underway, has been initiated in large part

because of the view that more such action is possible and appropriate.

• Second, the WUP process, officially launched in 1996, occupies a

critical place in the governments’ “tool box” of strategies for

effectively enforcing Fisheries Act s. 35(1) by “resolving” harm to

fish habitat caused by BC Hydro operations. WUP is a “major

new initiative” that Canada believes holds great promise for

addressing fish habitat impacts of hydroelectric facilities. This

initiative is intended to result in adoption of a water use plan for

each of BC Hydro’s hydroelectric facilities within a five-year

44 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
period. The water use plans will, among other things,

re-allocate water for purposes of protecting fish and fish habitat

in order to “resolve the long-standing fish impact issues.” (Canada’s July 1997 Response, pp. 9, 10).

• Third, there are several issues relating to the effectiveness of the

WUP process. Canada asserts that effective enforcement of s.

35(1) is measured by achievement of No Net Loss (NNL) (see,

for example, para. 72 below), and it claims that through WUP

NNL will be achieved (see, for example, para. 82 below). Canada states that “[f]acility operations that are in accordance with

the terms and conditions of an approved WUP will be in compliance with . . . the Fisheries Act” (WUP Management Committee’s

March 1999 Submission, p. 12).

The Submitters claim that BC Hydro operations will continue to

cause harm to fish habitat and continue to violate Fisheries Act s.

35(1) following completion of the WUP process. The Submitters’ view is that activities that harm fish habitat violate s. 35(1)

unless Canada issues an authorization under s. 35(2) that authorizes such harm:

[E]ffective enforcement of section 35 occurs only when harm to

fish habitat is prevented, or is authorized [under s. 35(2)] after

environmental assessment—the legislative scheme clearly contemplated by section 35. (Submitters’ January 1999 Speaking

Points, p. 3).

The Submitters assert that the WUP process will not produce

compliance with s. 35(1) because, in their view, the WUP process does not meet the requirements of s. 35(2) and the Canadian

Environmental Assessment Act (CEAA). The “deficiencies” the

Submitters believe exist in the WUP process are discussed

below. Questions about the WUP process raised by the Expert

Group are covered below as well.

• A final introductory point, also about the WUP process, flows

from the essential character of the process as an ongoing, iterative effort. The governments do not promise that the WUP process, including adoption of water use plans, will be a panacea or

provide a quick fix that eliminates or minimizes harm to fish

habitat from BC Hydro operations. Instead, they indicate that

WUP represents a systematic, comprehensive approach to

addressing fish habitat and other issues associated with hydroBC HYDRO FINAL FACTUAL RECORD 45
electric operations by first improving understanding of the

impacts, and then considering options for addressing them, all

through a consultative process.

The governments, for example, make the point several times

that significant gaps in understanding exist relating to fish habitat, the harmful impacts dams have on fish habitat, and the relative merits of different possible approaches for resolving such

impacts. (See, for example, para. 129 below). A key objective of

WUP is to identify such gaps and fill them. Further, “adaptive

management” approaches will be needed as strategies are tried,

monitored, and refined in light of lessons learned.

Thus, in short, while efforts have been made (and are ongoing)

to develop necessary information,4 and while various interim

efforts to address particular harmful impacts have been

launched and are ongoing, inherently WUP is a long-term process with development of critical information and adjustments

over time key components. The WUP Management Committee

notes this point in its March 1999 Submission. It states that the

WUP program “is in its initial stages and its biggest benefits are

yet to come.” (WUP Management Committee’s March 1999 Submission, p. 27). The lesson for this Factual Record flowing from

this central feature of the WUP process is that important information relevant to the effectiveness of WUP does not yet exist.

Information concerning the effectiveness of WUP will emerge

over time as data are gathered, WUP plans are developed for

various BC Hydro facilities, Fisheries Act s. 35(2) authorizations

are (or are not) issued, operational and other changes are made,

and the results are monitored and used to generate appropriate

refinements of approach. Much of the work of WUP lies in the

46 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

4. For the fact that, aside from WUP, efforts to fill data gaps have occurred and are

ongoing, see, for example, The Downton Reservoir Operation Summary Related to May

1996 Planned Reservoir Drawdown (“Downton Report”), provided as an appendix to

the WUP Management Committee’s March 1999 Submission. This Report notes that

BC Hydro has “made some creditable progress towards evaluation of the fish

impacts in some parts of the system.” It identifies, inter alia, the Fish Flow Overview

Report, which “examined 33 BC Hydro hydroelectric projects . . . and attempted to

examine the fish flow impacts of each project, and to prioritize areas for a further

study based on three factors: operational significance, potential biological improvements, and level of concern from public and agencies.” (Downton Report, p. 21).

Other work to develop information has been done since the 1995 release of the Government Response to ESOR as well. The WUP Management Committee states that

“[d]ata gaps are beginning to be addressed. . . . The Water Use Plan Program, with its

emphasis on information collection, is also designed to address these gaps.” (WUP

Management Committee’s March 1999 Submission, p. 6; see also p. 16).
future; information relevant to the effectiveness of this

approach can only be developed then as well. The WUP Management Committee identifies the need for monitoring as an

inherent feature of WUPs. The Expert Group identifies several

specific elements of WUP that should be monitored in particular.

55. The remainder of this section of the Factual Record is organized

into five sub-sections. The first two provide important contextual

information. Of these, the first provides background information

on BC Hydro operations and the types of harm such operations

may cause to fish habitat. The second provides background information concerning the appropriate scope of the inquiry to implement the Council’s direction in Council Resolution 98-07 “to

consider whether [Canada] ‘is failing to effectively enforce its

environmental law’,” notably Fisheries Act s. 35(1).

The third sub-section provides information concerning the more

significant Canadian enforcement responses. The fourth contains a

summary of the Expert Group’s review of enforcement involving

the six BC Hydro facilities selected for relatively in-depth review.

The details of the Experts’ review are covered in the Expert Group

Report, attached as Appendix 8. This Expert Group Report provides information relating to the harm to fish habitat caused by

these BC Hydro facilities, Canada’s enforcement efforts to reduce

or eliminate such harm, and the effectiveness of such efforts.

The final sub-section of the Factual Record summarizes Canada’s

approaches to enforcement with respect to the s. 35(1) prohibition

against harming fish habitat. The Factual Record, including this

Section, contains information provided or developed by various

parties. It also includes information developed by the Secretariat.

To state explicitly a point that is implicit in the presentation

of information, inclusion of information from various parties

does not necessarily mean that the Secretariat shares the views

expressed. Instead, the content and structure of the Factual Record

are intended to provide the reader with a coherent presentation of

relevant factual information, including the perspectives of various

parties, relating to the issues involved.

BC HYDRO FINAL FACTUAL RECORD 47
1.0 Background on BC Hydro Operations and the Types of Harm

such Operations may cause to Fish Habitat5

1.1 Historical

56. Development of water resources in British Columbia dates back to

the mid-1800s when several small hydro plants were constructed

on southern Vancouver Island. In the late 1890s, West Kootenay

Power Company began construction of its system of plants on the

Kootenay River in the interior of the province. During the early

1900s, the BC Electric Railway Company undertook hydroelectric

development on several tributaries to the Fraser River in B.C.’s

lower mainland and, beginning in 1927, it started its Bridge River

Development.

57. In the 1960s, the BC provincial government, through the newly

formed Provincial Crown Corporation BC Hydro and Power

Authority (BC Hydro), undertook the massive hydroelectric

development of the Peace and Columbia Rivers. The successful

negotiation of the Columbia River Treaty between Canada and the

United States was a key element of this development. By 1972, ten

years from its inception, BC Hydro had increased its power supply

by more than 125 percent. Today more than 80 percent of B.C.’s

electricity is produced by the hydroelectric facilities on the Peace

and Columbia Rivers.

1.2 The BC Hydro System Today

58. The BC Hydro system today serves more than 1.5 million residential, commercial and industrial customers in areas that contain

more than 94 percent of the province’s population. The utility produces 43,000 million to 54,000 million kWh annually depending

on precipitation. Approximately 90 percent of the total installed

BC Hydro generating capacity is hydroelectric. The hydroelectric

component comprises 61 dams at 43 locations. There are 34 hydroelectric generating facilities. (See map of the BC Hydro System,

Appendix 7). The major hydro projects on the Peace and Columbia

rivers account for more than 80 percent of BC Hydro’s electricity

generation.6

48 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

5. The information provided in this section was developed by the Expert Group and is

taken, with some modifications, from pp. 3-8 of the Expert Group Report, attached as

Appendix 8 to the Factual Record. Information relating to the issues covered in this

section was provided by others as well. (See, for example, BC Hydro’s 4 February

1999 Submission, pp. 5-8).

6. Canada provided additional contextual information in its 11 May 2000 comments on

the draft Factual Record, attached as Appendix 10.
59. In addition to providing electricity to British Columbia consumers,

BC Hydro participates in electricity trade with Alberta and the

western United States through high voltage tie lines. BC Hydro

also operates water storage facilities on the Columbia River system

in Canada in accordance with the Columbia River Treaty provisions.

1.3 Overview of BC Hydro System Operations

60. The primary objective of BC Hydro operations is to maintain an

adequate and reliable supply of electricity to its British Columbia

consumers and to meet its supply obligations to export customers

outside the province. A further, significant obligation is to operate

its water storage facilities on the Columbia River in accordance

with agreements reached under the Columbia River Treaty. A secondary objective is to market surplus electricity obtained through

fortuitous water conditions and prudent reservoir management at

the best obtainable price, normally in the export market.

61. Because the BC Hydro generation mix is predominantly hydroelectric, the amount of water that can be captured, stored, and

released through its turbine generators determines the amount of

electricity that can be produced. While water can be (and is) stored,

electricity cannot be, so at any given time the amount being generated must equal the amount being consumed. The amount of water

flowing into the reservoir systems is dependent on the precipitation in the related watershed over the year. The amount of water

that can be stored in the reservoirs, routed through the generator

turbines (as opposed to spilling past the turbines), and converted

into electricity will depend on the size of the reservoir storage and

how that storage is managed throughout the year. Good reservoir

management from a power production perspective means accurate measurement of the water in the watershed (snow depths and

water content of the snow) and good predictions about what volumes of water will flow into the reservoir during specific time

intervals. The objective from a power production perspective is to

have the reservoirs drawn down in the spring to such a level that

the spring melt will just fill the reservoirs. If the inflows are greater

than expected, water may have to be spilled. If the reservoir does

not refill, the hydraulic head will be less than optimal for efficient

generation and the facility output will be reduced. These reservoir

decisions are made using historical stream flow, snow course, and

meteorological data.

BC HYDRO FINAL FACTUAL RECORD 49
62. With a large, electrically integrated system like BC Hydro’s, the

operators are able to offset poor water conditions at one hydroelectric site by using favorable water conditions at another site. For

example, should the reservoir at one site be lower than optimal the

operators can increase generation from other hydro sites where

water conditions are better than normal. Similarly, available thermal or electricity imports can be utilized. The BC Hydro reservoirs

are located on different river systems widely dispersed throughout a province with normally diverse weather conditions. This

diversity of water conditions at BC Hydro reservoirs is a significant strength.

63. A factor adding to the flexibility and complexity of the BC Hydro

system is the storage and controlled release of water into the Canadian section of the Columbia River under the terms and conditions

of the Columbia River Treaty. Effectively, BC Hydro and the

Bonneville Power Administration, a United States federal agency,

are hydraulically and electrically linked through the Columbia

River System and the integrated electrical transmission network.

Reservoir levels and flow rates on the Columbia River, and other

river systems in British Columbia, are affected by the Columbia

River Treaty operations.

64. The BC Hydro reservoirs are very large, particularly the Williston

and Kinbasket reservoirs on the Peace and Columbia rivers.

Smaller reservoirs cycle annually, i.e., they are drawn down to a

minimum level and refilled in one, twelve month period. The large

Peace and Columbia reservoirs cycle over a three to four year

period. It would take three to four years of poor water conditions to

draw these reservoirs down to their minimum design levels. But it

would also take three to four years of good water conditions to

refill them. The longer cycling period means less susceptibility to

short term low stream flow conditions and greater overall flexibility in generation.

1.4 Impacts of Hydroelectric Operations on Fish Habitat

65. The original construction and subsequent operations of the components of a hydroelectric system—dams, storage reservoirs, river

diversions, spillways and hydroelectric turbines and generators—

have significant impacts on the environment and on humans and

other creatures that depend on a healthy environment. This Factual Record focuses specifically on the impact of BC Hydro hydro50 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
electric facilities and operations on fish and fish habitat. These

facilities and other operations have other impacts as well, including impacts on transportation, agriculture, industry, recreation,

and consumption.

66. The range of impacts of hydroelectric facilities and operations on

fish and fish habitat includes the following:7

• Blockage of upstream and downstream movements of resident

and migratory fish. Stream fishes often undertake significant

migrations upstream and downstream for the purposes of

breeding or feeding. Construction of a dam usually completely

blocks these normal movements. Although some species and

populations are able to adjust to the new situation, others cannot and this may significantly reduce the productive potential

of the river.

• Entrainment of fish into penstocks, turbines and spillways.

(Entrainment refers to the process by which small fish are

sucked into turbines and spillways by the flow of water.)

Entrainment can kill or injure fish and displace them into

unsuitable habitats.

• High concentrations of dissolved gas in water created by turbines and spillways and by algal blooms in reservoirs. Gas saturation above 100 percent can cause gas bubble disease in fish.

Below dams, elevated Total Gas Pressure (TGP) is caused by

water plunging off spillways carrying air bubbles deep into the

pool below the spillway. The bubbles deep in the pool dissolve

in the water because of the greater pressure at depth, increasing

the concentration of gas in the water to more than 100 percent

saturation. A similar phenomenon can occur in lakes when

there is an intense bloom of algae producing lots of oxygen

which raises the gas pressure in the surface waters of the lake

above 100 percent saturation. High TGP can cause death or

injury of fish because, when they are in water with elevated

TGP, their body fluids become supersaturated with gas so that

when they move to water with lower TGP the excess gas they

have absorbed forms bubbles in their blood and other tissues

(like a diver getting the “bends”). It is important to note that the

effects of high TGP are uncertain in nature.

BC HYDRO FINAL FACTUAL RECORD 51

7. Information on the generalized effects of hydroelectric production on fish and

aquatic ecosystems is also provided in Government Response to BC Hydro’s Electric System Operations Review, Attachment 4 (April 1995).
• Toxicity created by decomposition of organic material in reservoirs, e.g., low dissolved oxygen, methylation of mercury.

• Excessive water turbidity created by sloughing reservoir and

river banks, which reduces visibility for fish looking for food,

reduces the light penetration into lake and river waters so that

plant growth is inhibited, and can smother spawning beds and

thereby suffocate eggs and fry in the bottom gravels.

• Loss of spawning and nursery areas beneath reservoirs and by

scouring of gravels downstream of facilities. Reservoirs often

flood historic spawning and nursery habitats for stream dwelling fishes. Reservoirs block downstream movement of gravels

from above dams so that when bottom gravels are scoured out

downstream they are not replaced and spawning habitat is lost.

• Insufficient water releases or large fluctuations in water releases

so that fish and ova are exposed and destroyed. Operation of

dams typically changes the daily and seasonal hydrograph

downstream. Usually the high flows are reduced because these

are used to fill the reservoir so that floodplain habitats that

would normally be flooded during freshet remain dry. These

marginal habitats are often important spawning and nursery

habitats for some fishes. Flow below hydro dams can also be

highly variable on an hourly basis as demand for electricity

changes throughout the day. These rapid short-term fluctuations in water flow can wash fish out of reaches of the river or

leave them stranded in marginal pools when the water drops

rapidly. The seasonal activities of fishes and other aquatic

organisms and their movements are usually adapted to the natural seasonal changes in flow of the river so that the changes

brought about by dam operation can disrupt natural life processes in fishes and other organisms.

• Changes to water temperature affecting fish, ova incubation

and the ability of rivers and reservoirs to sustain plant and animal life upon which fish depend for food. Temperature changes

impact fish in several ways. Discharge from reservoirs is often

warmer in winter than the natural river. In the winter higher

temperatures result in greater metabolic rates in fish which

means that they need more food. Higher winter temperatures

also mean that eggs develop too fast. In the summer, reservoir

discharges can be either warmer or cooler than the natural river,

52 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
again having implications for metabolism, growth, food production and survival. The implications of temperature are complex. Some temperature impacts are beneficial and some are

harmful. For example the surface waters of a reservoir can be

impoverished in summer due to temperature stratification and

the trapping of nutrients in deep water. On the other hand, a reservoir may be more productive than the stream it replaced

because of warmer temperatures, being more open to sunlight,

and the fact that nutrients are trapped in the reservoir to be recycled year after year.

• Trapping of nutrients in reservoirs so that downstream productivity is reduced. Although a reservoir may be more productive

than the stream it replaced, the river downstream may be

reduced in productivity because the reservoir traps nutrients

that would normally have flowed downstream.

• Trapping of sediments in reservoirs so that downstream river

channels are deprived of sediment and become degraded. This

was mentioned above with respect to spawning gravels but, in

fact, the whole structure of the river downstream from a dam

can be changed by the trapping of sediments in the reservoir.

(See further elaboration below). Changes in the sediment

dynamics of the river coupled with changes in the seasonal flow

regimes below dams mean that the two factors most responsible

for the character of a river (sediments and flow) are dramatically

altered by dams.

• Poor littoral productivity in reservoirs due to large seasonal

drawdown and unnatural cycles of drawdown. The littoral

zone of a reservoir is the marginal area of the reservoir down to

the depth that light can stimulate plant growth. When this zone

remains wetted it is the most productive zone of the reservoir

because of good growing conditions for plants and the availability of nutrients from the bottom. When the reservoir level is varied dramatically, as it often is in hydropower reservoirs, this

zone is alternately wetted and dried out so that it ceases to be

productive. As the reservoir is lowered, the mud on the bottom

is exposed and can be stirred up by waves making the

near-shore waters very turbid. This further reduces productivity by reducing the amount of light that can penetrate into the

water. Drawing down the reservoir can also expose eggs and

cause them to die.

BC HYDRO FINAL FACTUAL RECORD 53
• Blockage of fish migration into and out of reservoir tributaries

due to draw down and debris and sediment accumulation at

tributary mouths. Drawing down the reservoir can also make it

difficult or impossible for fish to get into tributaries because the

tributary does not have a defined channel across the exposed

bottom sediments.

• Armoring, simplification and freezing of river channel morphology downstream of dams due to loss of high discharge

(“flushing flows”) events. The natural variations in flow of an

undammed river produces a more sinuous main channel with

more side channels which are important for nursery and spawning habitat. Dams reduce the dominant flow. This results in a

straighter and simpler channel which is poorer habitat for fish.

The lack of annual high or “flushing flows” can result in armoring of the bottom substrates creating a pavement-like bottom

that is not good for spawning or food production.

• Loss of side channel and off-channel habitats due to reduced

flows and/or altered hydrographs. The flow pattern below

dams is often much less variable seasonally than in the natural

stream so that seasonal channels on the floodplain are seldom

invaded by flood flows. As a result these secondary channels,

which can be important seasonal fish habitat, become choked

with vegetation and blocked by debris so that much higher

flows are needed to “reactivate” them. Often these channels are

completely lost as seasonal fish habitat.

• Blockage of fish migration into and out of tributaries downstream of dams due to debris and sediment accumulation at

tributary mouths and/or alterations to seasonal flow regimes.

Dominant river flows also serve to clear away debris and sediment accumulation at tributary mouths. When the river’s peak

flows are reduced, access to tributaries can become permanently blocked.

67. While all of the impacts listed above may not exist, or be significant, at each of BC Hydro’s 61 dams/reservoirs involving 34

hydroelectric facilities, it is undisputed that many of BC Hydro’s

hydroelectric operations cause harm to fish habitat in one or more

of these ways. (See, for example, DFO. 1991. Impacts of the Operation of Existing Hydroelectric Developments on Fishery Resources

54 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
in British Columbia. In Anadromous Salmon Vol. 1. Vancouver,

B.C.: DFO; and Submitters’ April 1997 Submission, Attachments 2,

and 6-14.)8

2.0 Background on the Scope of Information Developed Concerning

the Assertions of “Failures to Effectively Enforce” Fisheries Act

Section 35(1)

68. A key step in developing a factual record is to determine the scope

of information to be considered for inclusion. Council Resolution

98-07 directs the Secretariat to consider, for this Factual Record,

whether Canada is failing to effectively enforce its environmental

law, notably Fisheries Act s. 35(1), with respect to BC Hydro operations, as follows:

[T]he Secretariat, in developing the factual record, [is] to consider

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January

1994. In considering such an alleged failure to effectively enforce,

relevant facts that existed prior to 1 January 1994, may be included

in the factual record.

69. The NAAEC does not define the phrase “effectively enforce.”

Various provisions, such as Articles 5 and 45, are relevant to understanding the meaning of this phrase. Article 5, entitled “Government Enforcement Actions,” states that each Party “shall

effectively enforce its environmental laws... through appropriate

governmental actions” and it provides a list of such actions. Article

45 indicates circumstances in which a Party has not failed to effectively enforce its environmental law.

70. The Secretariat indicated in its 27 April 1998 Notification of the

Secretariat to the Council for the Development of a Factual Record

in accordance with Articles 14 and 15 of the North American

Agreement on Environmental Cooperation (“Secretariat’s 27 April

1998 Notification to Council”) that the term “enforcement” should

BC HYDRO FINAL FACTUAL RECORD 55

8. According to information provided by BC Hydro and offered by Canada in its 11

May 2000 comments, BC Hydro facilities impact only two percent of all salmonbearing streams in British Columbia. (See Appendix 10). The Secretariat’s understanding is that the two percent estimate was developed by BC Hydro or by a consultant to BC Hydro, based on escapement information available for several years

following dam construction.
be given a broad definition. In particular, the Secretariat stated

that the term “enforcement” should cover more than prosecution-related activities:

Canada’s assertion that it employs a variety of regulatory measures,

inclusive of prosecution, to effectively enforce its laws is consistent

with the broad construct of “effective enforcement” articulated in

Article 5 of the NAAEC and in other jurisdictions. Consequently, a

lack of prosecutions under s. 35 of the Fisheries Act may not be

dispositive of the issue regarding Canada’s enforcement of its environmental laws. (Secretariat’s 27 April 1998 Notification to Council,

pp. 2-3).

71. In its 27 April 1998 Notification to Council the Secretariat identified two primary types of information that should be developed

concerning Canada’s “enforcement” practices. First, the Secretariat stated that information should be developed concerning the

nature and extent of Canada’s enforcement activities. Second, it

stated that information should be developed concerning the effectiveness of those strategies in ensuring compliance with s. 35(1) of

the Fisheries Act. The Notification, for example, provides:

Additional information is required before an evaluation can be made

that Canada is effectively enforcing its environmental laws. It is recommended that a factual record be developed in order to assemble

further factual information regarding the enforcement activity

undertaken by Canada and the effectiveness of that activity in ensuring compliance with section 35(1) of the Fisheries Act. (Secretariat’s 27

April 1998 Notification, p. 3).

72. The Stakeholders provided information relevant to the meaning of

the term “effective enforcement.” For example, Canada’s July 1999

Draft Fisheries Act Habitat Protection and Pollution Prevention

Provisions Compliance and Enforcement Policy (“1999 Draft Compliance & Enforcement Policy”) addresses the purpose of taking

enforcement measures:

The desired result [of an enforcement measure] is compliance with

the Act within the shortest possible time and with no further occurrence of violations in order to protect fish and fish habitat. (1999 Draft

Compliance & Enforcement Policy, p. 17).

In its March 1999 Submission, Canada discusses the concept of

“effective enforcement” in the specific context of hydro operations.

It asserts that Canada’s enforcement would be effective if it

56 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
achieved No Net Loss of the productive capacity of habitats supporting the fisheries resources:

Generally, achieving No Net Loss is what DFO would consider to be

“effective enforcement” regarding hydro dams, or any other industries, in Canada. This would achieve the intent of the Fisheries Act s. 35.

(Canada’s March 1999 Submission, p. 2).

The principle of No Net Loss is discussed below.

73. The Submitters consider compliance with the underlying environmental law as an indicator of effective enforcement. The Submitters suggest that, in addition, such compliance must result in

achievement of the substantive purpose of the law in order to constitute effective enforcement:

The starting point for considering what constitutes effective enforcement of environmental laws begins with an analysis of the environmental law or regulation itself. If the intent and purpose of an

environmental law or regulation is to protect an environmental value,

the provision is effectively enforced when that value is actually protected. Stated another way, enforcement of an environmental law is

not “effective” unless enforcement actions achieve the substantive

purpose of the law in question. (Submitters’ 22 March 1999 Submission, p. 2).

Applying this conceptual framework to s. 35(1) of the Fisheries Act,

the Submitters state that “the actions that Canada has cited as

enforcement of section 35 must be evaluated on the basis of

whether they achieve the substantive purpose of section 35.” (Submitters’ January 1999 Speaking Points, p. 4). Specifically, the Submitters assert:

[E]ffective enforcement of section 35 occurs only when harm to fish

habitat is prevented, or is authorized [under s. 35(2)] after environmental assessment—the legislative scheme clearly contemplated by

section 35. (Submitters’ 22 March 1999 Submission, p. 2).

74. BC Hydro states that “[t]he test of effectiveness is . . . the degree of

success in protecting fish habitat.” (BC Hydro’s February 1999

Submission, p. 16). BC Hydro expresses the view that enforcement

need not produce invariable compliance in order to be effective.

We believe “effective enforcement” of the Fisheries Act in the context

of hydroelectric operations means managing the fundamental tenBC HYDRO FINAL FACTUAL RECORD 57
sion between hydroelectric generation and the Act, focusing on overall fish habitat, and recognising that perfect and invariable

compliance is impossible. (BC Hydro’s February 1999 Submission,

p. 1).

75. The Expert Group provides the following information concerning

the meaning of the term “effective:”

There are at least two types of facts relevant to the concept of effective

enforcement. The first involves facts relating to what is being done, in

other words facts relating to the “enforcement” actions being undertaken and the resources being devoted to enforcement. The second

type of facts relate to whether the enforcement actions being undertaken are effective, i.e., are the enforcement actions eliminating or

reducing the violations of law, here the harmful impacts on fish and

fish habitat. (Expert Group Report, para. 25).

76. It is worth noting that the challenge of determining the types of

information relevant to whether enforcement practices are “effective” is currently receiving considerable attention from various

levels of government as well as from other interested parties. The

CEC itself is currently working on this issue. The Commission has

had a formal project underway since 1997 to determine the indicators or types of information relevant to whether enforcement

practices are “effective.” This project on indicators of effective

environmental enforcement is being undertaken under the guidance of the North American Working Group on Environmental

Enforcement and Compliance Cooperation (EWG). This Group,

comprised of senior-level environmental enforcement officials

representing national, state and provincial agencies, was formally

constituted by the CEC Council in 1996. The Group held a multistakeholder dialogue on this issue in 1998 and published in 1999

the proceedings of the dialogue as well as a series of background

papers on compliance indicators.9 This is a long-term project

whose objectives include “explor[ing] the feasibility [of] North

American indicators of effective environmental enforcement policies, programs and strategies,” and “support[ing] the development of more effective indicators.” 10

58 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

9. Indicators of Effective Environmental Enforcement: Proceedings of a North American Dialogue, Commission for Environmental Cooperation, March 1999, p. v-vi.

10. Commission for Environmental Cooperation, North American Agenda for Action

1999-2001: A Three-year Program Plan for the Commission for Environmental

Cooperation, p. 113.
77. Consistent with its coverage of the issue of “effective enforcement”

in the 27 April 1998 Notification to Council (see para. 71 above), the

Secretariat has obtained and developed information relating to,

inter alia, (1) the nature of enforcement activity undertaken by Canada, and (2) the effectiveness of that activity in ensuring compliance with s. 35(1) of the Fisheries Act.

78. These types of information are important information for anyone

seeking to decide whether Canada is effectively enforcing its environmental laws within the meaning of the NAAEC. An important

purpose of a factual record is to provide information that may

assist the public in assessing whether or not a Party is failing to

effectively enforce its environmental laws within the meaning of

the NAAEC.11

3.0 Information on Significant Canadian Enforcement Responses

Concerning the Statutory Prohibition Against Harming Fish

Habitat

79. Canada’s March 1999 Submission describes a number of activities

that the federal government is currently undertaking to enforce s.

35(1) of the Fisheries Act. This section first provides information

concerning a “guiding principle” for much of Canada’s work in the

realm of protecting fish habitat, notably the concept of “no net

loss” and the related concept of “net gain.” It then provides information on six types of specific activities:

• Water Use Planning,

• Prosecutions and Related Actions,

• Environmental Assessments,

• Emergency Response Procedures,

• Regional Technical Committees, and

• Water Quality Guidelines.

3.1 The Concepts of “No Net Loss” and “Net Gain”

80. As a general matter, the principle of “No Net Loss” (NNL) is a

central or “guiding” one in Canada’s approach to protecting and

conserving fish habitat. (See, for example, 1998 C&P Guidelines,

BC HYDRO FINAL FACTUAL RECORD 59

11. See e.g., Determination in SEM-95-002 (8 December 1995).
p. 1 (characterizing NNL as a “Guiding Principle”); and DFO’s

Annual Report to Parliament on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act for the period of April 1, 1996 to March

31, 1997 (noting that NNL is “[t]he primary guiding principle” for

DFO’s Habitat Management Program)).

81. As noted above, Canada gauges effective enforcement of Fisheries

Act s. 35(1) by the extent to which Canada achieves NNL:

Generally, achieving No Net Loss is what DFO would consider to be

‘effective enforcement’ regarding hydro dams, or any other industries, in Canada. This would achieve the intent of Fisheries Act s. 35.

(Canada’s March 1999 Submission, p. 2).

As the quote reflects, this is true for hydroelectric operations as

well as for other activities.

In Section 1.6 of its March 1999 Submission, Canada asserts the following:

The most important yardstick regarding effective enforcement is the

effect on the resource; this is essentially the same yardstick as the

No Net Loss principle of DFO: i.e., is the situation improving for fish

and fish habitat regarding hydro facilities?

82. In a 30 January 1997 letter to the Province of British Columbia, DFO

indicated that it plans to ensure achievement of NNL and produce

a net gain to fisheries resources through participation in the WUP

process. (The WUP process is discussed in Section III.B.3.2 below):

[W]ith respect to applying the National “Policy for the Management

of Fish Habitat” to the WUP process, as a general objective DFO will

seek to achieve an overall net gain to the fisheries resources of British

Columbia. We feel that this objective will be achieved by ensuring a

no net loss of the existing productive capacity of fish habitats, and

restoring potential productive fish habitats in systems impacted

by hydroelectric facilities. (30 January 1997 letter from E.A. Perry,

Executive Director, Habitat and Enhancement Branch, DFO to Dr.

J. O’Riordan, Assistant Deputy Minister, Environment and Lands,

Regions Division, MELP) (“DFO’s 30 January 1997 Letter”).

83. This section covers four issues relating to the NNL principle. First,

it provides information concerning what the principle means.

Next, it provides information on some of the policies Canada has

60 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
adopted to achieve NNL. Third, it provides information concerning its application in the context of BC Hydro’s facilities. Fourth, it

provides information concerning the use of NNL to measure effective enforcement of s. 35(1).

3.1(1) A Brief Overview of the Guiding Principle of No Net Loss

84. Canada first articulated and described the NNL principle in 1986,

in its Policy for the Management of Fish Habitat. This 1986 Policy

defines the NNL principle as preventing further reductions to Canada’s fisheries resources due to habitat loss or damage:

Under this principle, the Department will strive to balance unavoidable habitat losses with habitat replacement on a project-by-project

basis so that further reductions to Canada’s fisheries resources due to

habitat loss or damage may be prevented. (1986 Habitat Management

Policy, p. 14)

The overall objective of the 1986 Habitat Management Policy is to

achieve a net gain of habitat for Canada’s fisheries resources. The

1986 Policy indicates that Canada will achieve this objective by

conserving existing fish habitat “using a NO NET LOSS guiding

principle,” among other strategies. (1986 Habitat Management

Policy, pp. 2, 12-14, emphasis in original). Canada also will seek,

inter alia, to restore damaged fish habitats. (1986 Habitat Management Policy, pp. 14-15).

85. The 1986 Habitat Management Policy articulates a hierarchy of

preferences for achieving NNL:

Fisheries management objectives will be a major consideration in

deciding what offsetting proposals would be acceptable to achieve

NO NET LOSS. First, preference would be to maintain without disruption the natural productive capacity of the habitat(s) in question

by avoiding any loss or alteration at the site of a proposed project or

activity. Only after it proves impossible or impractical to maintain the

same level of habitat productive capacity would the Department

accede to compensatory options—like-for-like compensation, off-site

replacement habitat, or an increase in the productivity of existing

habitat for the affected stock. In those rare cases where it is not technically feasible to avoid potential damage to habitats, or to compensate

for the habitat itself, the Department would consider proposals to

compensate in the form of artificial production to supplement the

fishery resource, subject to certain conditions.... (1986 Habitat Management Policy, pp. 4, 25-26, emphasis in original).

BC HYDRO FINAL FACTUAL RECORD 61
86. Canada’s 1998 Habitat Protection and Conservation Guidelines

contain a figure depicting this hierarchy.

Figure 1: Options for Habitat Conservation and Protection

62 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

MOST PREFERRED

RELOCATION

PROJECT DESIGN

REDESIGN

MITIGATION

HABITAT

COMPENSATION

COMPENSATION

(not an option for chemical

contamination)

ARTIFICIAL PROPAGATION

(in exceptional circumstances)

LEAST PREFERRED
87. Canada has developed a series of policies to provide further guidance on the implementation of the NNL guiding principle since

issuing the original 1986 Habitat Management Policy. These policies include, among others:

• Directive on the Issuance of Subsection 35(2) Authorizations,

Department of Fisheries and Oceans, 25 May 1995 (the “1995

Subsection 35(2) Directive”);

• Habitat Conservation and Protection Guidelines, Department

of Fisheries and Oceans, 1998 (the “1998 C&P Guidelines”),

superceding the 1994 Habitat Conservation and Protection

Guidelines; and

• Decision Framework for the Determination and Authorization

of Harmful Alteration, Disruption or Destruction of Fish Habitat, Department of Fisheries and Oceans, Habitat Management

Branch, 1998 (the “1998 HADD Decision Framework”).

Information from some of these policies is provided below.

3.1(2) Strategies to Achieve No Net Loss: The 1998 Decision

Framework for the Determination and Authorization of

Harmful Alteration, Disruption or Destruction of Fish Habitat

88. The 1998 HADD Decision Framework is one of the Canadian policies developed to apply the NNL principle. Canada indicates that

it generally follows this Decision Framework. (11 June 1999

Response to 21 April 1999 Questions, p. 2). The Expert Group notes

that NNL is “largely implemented” through this Decision Framework. (Expert Group Report, para. 38).

89. The 1998 HADD Decision Framework indicates that, in Canada’s

view, s. 35(2) authorizations are an important regulatory

tool—such authorizations make legal activities that otherwise

might be illegal because of the harm they cause to fish habitat. If

there is likely to be a harmful alteration, disruption or destruction

of fish habitat, “then a Subsection 35(2) authorization is required in

order for the project to proceed without risking contravention of

Subsection 35(1).” (1998 HADD Decision Framework, p. 4). As the

1998 HADD Decision Framework states elsewhere, s. 35(2) “qualifies” the s. 35(1) prohibition against harming fish habitat, “in that it

BC HYDRO FINAL FACTUAL RECORD 63
allows for the authorization by the Minister of Fisheries and

Oceans, or through regulation, of the alteration, disruption or

destruction of fish habitat.” (1998 HADD Decision Framework, p.

1; See also 1998 HADD Decision Framework, p. 15, 1998 C&P

Guidelines, p. 16). That is, if a project could cause harm to fish habitat and thereby violate Fisheries Act s. 35(1), Canada will consider

issuing a s. 35(2) authorization as a way to minimize and compensate for such harm and, legally, make the residual harm legal.

90. The 1998 HADD Decision Framework indicates that Canada’s

approach to applying the NNL principle involves evaluating two

basic questions in reviewing projects:

• Is a HADD likely to result?

• If so, should a s. 35(2) authorization be issued? (1998 HADD

Decision Framework, Executive Summary)

91. The 1998 HADD Decision Framework includes a figure depicting

the decision framework for the determination and authorization of

HADDs.

64 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Figure 2: A Decision Framework for the Determination and

Authorization of Harmful Alteration, Disruption

or Destruction of Fish Habitat12

BC HYDRO FINAL FACTUAL RECORD 65

Project Proposal 1. Is fish habitat

present?

No Subsection 35(2)

Authorization

not required.

Yes

2. Could the

proposed project cause

HADD of fish habitat?

No

Subsection 35(2)

Authorization

not required.

Yes

3. Can the impacts

be fully mitigated?

Yes Subsection 35(2)

Authorization not

required. Letter of

advice specifying

mitigation.

No

4. Should the HADD

be authorized?

No Subsection 35(2)

Authorization

not issued.

Yes

Subsection 35(2)

Authorization

Issued once

compensation

is specified.

Yes 5. Can the HADD

be compensated?

No Subsection 35(2)

Authorization

not issued.

12. This figure also appears as Figure 1 on page 5 of the 1998 Habitat Conservation and

Protection Guidelines, DFO (2nd ed. 1998).
92. The first question of whether a HADD is likely to result is, in turn,

broken down into three subsidiary questions:

1) Is fish habitat present?

2) If so, could the project cause a HADD?

3) If so, can impacts from the project be fully mitigated to prevent such a HADD?

If no fish habitat is present, the Fisheries Act does not apply. Similarly, if fish habitat is present but the project has no potential to

cause a HADD, then, again, there is no possible violation of s. 35(1)

and no s. 35(2) authorization is needed. (1998 HADD Decision

Framework, p. 2). Finally, the 1998 HADD Decision Framework

explains that if mitigation measures are likely to prevent a HADD,

then a s. 35(2) authorization is not required.

93. The 1998 HADD Decision Framework reflects Canada’s strong

preference for identifying ways to avoid HADDs rather than compensating for them because of the inherent uncertainties associated with the effectiveness of the latter approach:

Even though a proponent may be willing to undertake compensation,

issuance of a Subsection 35(2) authorization with compensation specified is viewed as the least preferred approach. Because the success of

compensation in maintaining productive capacity is not always certain, the preferred approach . . . is to fully mitigate impacts to such an

extent that a HADD is not likely to result. The first step in applying the

hierarchy is to try to avoid impacts through relocation or redesign of

the project. If impacts remain, then the next step is to identify specific

mitigation measures, such as timing windows. If a HADD is still

expected to occur then the manager determines if appropriate compensation is possible. (1998 HADD Decision Framework, p. 17).

Other policies make this point as well. For example, Canada’s 1995

Subsection 35(2) Directive states:

[T]he first preference is to maintain the productive capacity of

the habitats in question by avoiding any loss or harmful alteration

through project relocation, redesign or mitigation. Only after it

becomes impossible or impractical to maintain the same level of habitat productive capacity would the exploration of compensatory

options be considered. (1995 Subsection 35(2) Directive, p. 3)

66 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
94. The 1998 HADD Decision Framework provides information relevant to determining whether fish habitat is present and whether

the proposed project could cause HADD of fish habitat.

• It elaborates on the definition of “fish habitat.” Fisheries Act s. 34

defines “fish habitat” as “spawning grounds and nursery, rearing, food supply, and migration areas on which fish depend

directly or indirectly in order to carry out their life processes.”

The 1998 HADD Decision Framework states that fish habitat is

“comprised of those physical, chemical and biological attributes

of the environment (e.g., substrate type and structure, aquatic

macrophytes, water depth, water velocity, water temperature,

dissolved oxygen, riparian vegetation, etc.) which are required

by fish to carry out their life processes (e.g., spawning, nursery,

rearing, feeding, overwintering, migration).” (1998 HADD

Decision Framework, Executive Summary & pp. 5-6; See also

1998 C&P Guidelines, pp. 1-2).

• After noting that the Fisheries Act does not define what constitutes a HADD, the 1998 HADD Decision Framework provides

the following definition: “HADD of fish habitat is defined here

as: any change in fish habitat that reduces its capacity to support one or

more life processes of fish.” (1998 HADD Decision Framework,

Executive Summary & p. 6, emphasis in original).

In other words, a HADD results when “there is a change in the

physical, chemical, biological attributes of fish habitat” that renders the habitat “less suitable, or unsuitable, for supporting one

or more life processes of fish.” (1998 HADD Decision Framework, p. 7). Implicit in this model is the “assumption...that, as a

result of the reduced capacity of the habitat to support the life

processes of fish, there will also be a loss in the capacity of the

habitat to producefish.” (1998 HADD Decision Framework, p. 7,

emphasis in original).

• The 1998 HADD Decision Framework defines the differences

among “harmful alteration,” “disruption,” and “destruction”

as follows:

These conditions do differ, and are differentiated essentially by the

severity of impacts and their duration, as follows:

• harmful alteration—any change to fish habitat that indefinitely

reduces its capacity to support one or more life processes of fish but

does not completely eliminate the habitat;

BC HYDRO FINAL FACTUAL RECORD 67
• disruption—any change to fish habitat occurring for a limited

period which reduces its capacity to support one or more life processes of fish; and

• destruction—any permanent change of fish habitat which completely eliminates its capacity to support one or more life processes

of fish. (1998 HADD Decision Framework, p. 6, emphasis in original).

• The 1998 HADD Decision Framework explains the types of

information needed to determine whether fish habitat is present:

[C]ertain bio-physical information (e.g., water velocity, flow, stream

width/depth, channel features, water temperature, oxygen levels,

substrate, vegetation, etc.) is normally required by habitat managers

to determine the presence, type, quality and quantity of fish habitat

present at the project site or in an area impacted by a project.

In addition, generally all species and life stages of fish contributing to

a fishery, and their use of the habitat must also be known to determine

how the biophysical attributes of the habitat(s) meet the requirements

of the fish species. (1998 HADD Decision Framework, p. 6).

• The 1998 HADD Decision Framework indicates that in evaluating HADDs, it is important to understand the specific project

proposed as well as the “species and life stages of fish present

which contribute to a fishery, and types of habitat present.”

(1998 HADD Decision Framework, p. 10). DFO lists the “principal factors” to consider in determining if a HADD of fish habitat

is likely to result. These factors include:

1. environmental (fish habitat) information;

2. fish species, and their respective life stages, use of the habitat, and their sensitivities to habitat changes;

3. project impacts to biophysical attributes such as substrate,

aquatic or riparian vegetation, flow, sedimentation, hydrology, water quality (e.g., temperature, turbidity, oxygenation), etc.;

4. the type and extent of habitat impacted (spatial context);

5. timing of project construction/operation in relation to habitat utilisation;

6. details of the project (construction and operation);

68 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
7. change to the integrity of the habitat, that is whether

post-project conditions will lead to future habitat impacts

(e.g., erosion);

8. short- and long-term impacts to key habitat components

and life processes of fish, through the application of conceptual models; and, where appropriate,

9. mitigation measures available to avoid or reduce the

impacts. (1998 HADD Decision Framework, p. 9).

• The 1998 HADD Decision Framework notes that different fish

species require different types of fish habitat:

[E]ach [fish] species requires specific physical, chemical and biological conditions that must be taken into consideration in the

assessment of impacts of project proposals. (1998 HADD Decision Framework, p. 7).

• The 1998 HADD Decision Framework notes that: “[A]ny change

in habitat, no matter how minor, could be expected to have

some effect on fish habitat attributes which support life processes of fish; however, in making a determination of the likelihood of a HADD, habitat managers should determine if, in their

professional judgement, such effects would be expected to

result in a reduction in the habitat’s capacity to produce fish, relative to the fishery or potential fishery in question.” (1998

HADD Decision Framework, p. 14).

• The 1998 HADD Decision Framework lists types of projects generally considered likely to result in HADD of fish habitat. It

includes “dams” among those types of projects for which “a

conclusion that a HADD is likely to result would usually be

reached.” (1998 HADD Decision Framework, p. 12).

95. For situations in which fish habitat is present and a project could

cause a HADD, the 1998 HADD Decision Framework lists the considerations relevant to whether a s. 35(2) authorization should be

issued:

• the acceptability of the HADD of fish habitat;

• fisheries management or fish population objectives;

• whether the habitat is supporting an active fishery—where there is

no active fishery, there may be more flexibility in the timing of the

implementation of compensation;

BC HYDRO FINAL FACTUAL RECORD 69
• importance of the habitat—as per the 1998 C&P Guidelines,

whether the impacted habitat type is in low supply and/or may be

of high value to fish production;

• whether the effects of the HADD will be temporary or permanent;

• whether the HADD will cause a significant change in the capacity

of the habitat to produce fish—either because the project will

result in a relatively large change, or a small but significant, or

cumulative change;

• the availability of technically feasible habitat compensation

options, as well as evidence of past success in efforts to compensate for the loss of the type of habitat impacted by the project;

• compatibility with the hierarchy of preference for compensation

options, as per the 1998 C&P Guidelines; and

• whether the authorization would set a precedent that could lead to

future cumulative impacts. (1998 HADD Decision Framework, p.

15).

The conditions under which a s. 35(2) authorization should be

issued are more fully described in the 1998 C&P Guidelines. The

details, for example, regarding habitat compensation agreements,

if required, are discussed at pp. 17-18.

96. The 1998 HADD Decision Framework provides information on the

process for considering whether to issue a s. 35(2) authorization,

once Canada has determined that fish habitat is present and the

proposed project could cause HADD of fish and fish habitat. It provides that “[u]nder the CEAA, DFO is required to conduct an environmental assessment of most project proposals prior to issuing a

Fisheries Act Subsection 35(2) authorization.” (1998 HADD Decision Framework, p. 18). The 1998 HADD Decision Framework

explains Canada’s application of the CEAA to s. 35(2) authorizations as follows:

Prior to issuing an authorization, a CEAA environmental assessment

must be completed and the conclusion must be that, after taking into

account any mitigation measures, the adverse environmental effects

are not significant, or, if they are significant, they are justifiable in the

circumstances. For the purposes of an environmental assessment

made under the CEAA, the CEA Act defines the term “mitigation”

such that it includes both mitigation and compensation, as defined in

the Habitat Management Policy. Generally, in those situations where

70 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
a habitat manager has concluded that a likely HADD can be mitigated

and/or compensated to achieve No Net Loss then the manager

would also conclude that impacts to fish habitat are not considered

significant pursuant to CEAA and issue a Subsection 35(2) authorization with appropriate conditions.

If the decision is that the likely HADD is unacceptable (i.e., DFO is not

prepared to issue a Subsection 35(2) authorization), DFO would terminate the CEAA assessment and not issue the authorization. (1998

HADD Decision Framework, p. 19).

97. The 1998 HADD Decision Framework outlines a special process

for certain situations in which Canadian officials believe that it is

not appropriate to issue a s. 35(2) authorization because of the

impacts of the project:

[I]n certain cases (e.g., major projects that have potential for significant environmental and fish habitat impacts, and/or socio-economic

policy implications), the following general approach may be appropriate: DFO would inform the proponent of its decision not to issue a

Subsection 35(2) authorization and indicate that if the proponent

wishes to pursue the project, DFO would be prepared to make written

representation to the Minister of Environment that the project go to a

CEAA panel. In so doing, it should be made clear to the proponent

that DFO will maintain its position, when making submissions to the

CEAA panel, that there are unacceptable impacts to fish habitat associated with the project. Subsequent to the release of the panel’s report,

DFO’s decision as to whether or not an authorization will be issued,

and the appropriate compensation, if any, to be applied, would be

based on the recommendations set out in the panel report, as

approved by Governor in Council.

By taking this general approach, DFO officials would be able to make

their decisions based on the nature and extent of impacts to fish habitat. It would provide a formal, open, public process for other factors,

such as socio-economic considerations, to be examined and provide

the Minister with a broader, supportable rationale for authorizing, or

not authorizing, a HADD likely to result from such major projects.

(1998 HADD Decision Framework, p. 19).

As covered in more detail in the WUP section below, one of the

questions raised by the Submitters is whether the WUP process is

consistent with the CEAA process. One of the issues in the context

of the quoted passage is whether the WUP process contemplates

that DFO officials will maintain the focus on fish habitat issues

BC HYDRO FINAL FACTUAL RECORD 71
described above. A second issue is whether WUP will incorporate

the process described above when DFO officials decide that the

impacts on fish habitat, viewed on their own, would warrant rejection of s. 35(2).

98. The 1998 HADD Decision Framework provides that authorizations are not necessarily issued for every project. It states that Canada is “not obliged to issue an authorization in situations where

adverse impacts to fish habitat are judged to be unacceptable.”

(1998 HADD Decision Framework, p. 15; See also 1995 Subsection

35(2) Directive, p. 4). The 1998 HADD Decision Framework indicates that cumulative effects are considered in deciding whether to

issue an authorization and may lead to a decision not to issue one:

Cumulative effects . . . may influence the decision about whether a

HADD will be authorized. . . . The uncertainty about acceptable levels

of development and the risk of establishing precedents leading to significant cumulative effects will normally cause habitat managers to

recommend against issuing a Subsection 35(2) authorization. (1998

HADD Decision Framework, p. 16).

3.1(3) Application of No Net Loss in the Context of BC Hydro

Facilities

99. Canada states that it measures the effectiveness of its enforcement

efforts based on whether BC Hydro operations achieve No Net

Loss. To quote from Canada’s March 1999 Submission once again:

Generally, achieving No Net Loss is what DFO would consider to be

“effective enforcement” regarding hydro dams, or any other industries, in Canada. This would achieve the intent of the Fisheries Act s. 35.

(Canada’s March 1999 Submission, p. 2).

100. The previous section of the Factual Record summarizes Canada’s

definition of NNL. It also covers Canada’s strategy for achieving it.

Key elements of this strategy include assessing whether projects

could harm fish habitat, seeking to eliminate such impacts whenever possible, and considering issuance of s. 35(2) authorizations

when impacts cannot be avoided. The 1986 Habitat Management

Policy, which created the NNL guiding principle, indicates that it

“applies to proposed works and undertakings and it will not be

applied retroactively to approved or completed projects.” (1986

Habitat Management Policy, pp. 4, 14). Other policies also suggest

72 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
a focus on proposed projects. (See, for example, 1998 HADD Decision Framework, p. 1 (applies to “project proposals”); and 1998

C&P Guidelines, p. 1 (apply to “proposed works and undertaking[s]”)).

101. In light of Canada’s expressed goal of achieving NNL for BC

Hydro operations, and particularly because the policies cited in

paragraph 100 appear to deal primarily with new project proposals, Canada was asked a number of questions relating to how it

determines NNL for BC Hydro operations, particularly with

respect to the six facilities for which the Expert Group developed

relatively in-depth information. Based on the information provided, the Expert Group states that there is not sufficient information for outside reviews of whether No Net Loss is being achieved

“at individual facilities or for the hydroelectric system as a whole.”

(Appendix 8, para. 54). One of the questions asked is as follows:

What is the process or model utilized to calculate or determine No

Net Loss in relation to the six facilities that the experts have identified

to be of interest? (21 April 1999 Questions, Question #1)

102. In its response, Canada indicates that it calculates or determines

NNL for the six facilities of interest by using a variety of information to assess impacts of the projects and it generally follows the

1998 HADD Decision Framework (described above):

The model used by Fisheries and Oceans Canada (F&OC) to calculate

or determine No Net Loss in relation to the six facilities of interest is to

assess the impacts of the project on fish and fish habitat. This assessment incorporates available fisheries, biophysical, facilities management information as well as the professional judgement of qualified

experts in the field. Subsequent steps followed in this process generally follow the F&OC Policy directive entitled “Decision Framework

for the Determination and Authorization of a Harmful Alteration,

Disruption or Destruction of Fish Habitat.” (11 June 1999 Response to

21 April 1999 Questions, p. 2).

103. In its March 1999 Submission, Canada stated that it has “tentatively identified baseline, improved and restored scenarios for

most facilities.” (Canada’s March 1999 Submission, p. 29, emphasis

in original). Canada was asked to provide these scenarios:

In the DFO Submission, DFO indicated that it has “tentatively identified baseline, improved and restored scenarios for most facilities”

BC HYDRO FINAL FACTUAL RECORD 73
and that the baseline condition is “in full compliance with the Fisheries

Act.” Please provide each of those scenarios for the six facilities of

interest and outline how it is determined that the baseline condition is

in full compliance with the Fisheries Act. (21 April 1999 Questions,

Question #5).

In its response to Question #5 of the 21 April 1999 Questions, the

WUP Management Committee describes development of these

scenarios as follows:

In preparation for Water Use Planning the fisheries agencies (F&OC,

MELP Fisheries, and BC Fisheries) held several meetings involving

regional staff. BC Hydro fisheries staff were also involved in these

discussions. The purpose of these meetings was to assess the impacts

of operations at the various hydro facilities and to determine strategies to offset those impacts. Efforts were made to compile all available

information of fish and fish habitat in those systems and this information was made available at those meetings. As a result of those consultations, strategies involving changes to flows, habitat enhancement

opportunities, and other mitigative measures were identified for each

facility. The baseline, improved and restored scenarios were developed based on existing data and professional judgement by experts

familiar with the systems.

This information has been useful as a planning tool, to provide guidance for development of the overall WUP Program for BC Hydro

facilities. It was and is intended that once individual WUPs were initiated, further study would enable the fisheries agencies to assess the

validity of the baseline conditions identified and redefine them if

appropriate.

The Expert Group states that the scenarios requested in the 21

April 1999 Questions, Question #5, were not provided:

We have been told that baseline, improved and restored scenarios

were tentatively identified for most BC Hydro facilities. (Canada’s 11

June 1999 Response to 21 April 1999 Questions, p. 9; Canada’s March

1999 Submission, Section 3.1). We have requested these scenarios for

the six facilities (Question #5 of 21 April 1999 Questions) but they

have not been provided. As a result, it is not clear what Canada considers to be baseline (or better) conditions for these particular facilities, or when these conditions were set. (Appendix 8, para. 49).

104. Canada was asked what year it uses as the baseline year from

which to calculate losses and gains for each of the six facilities identified to be of particular interest:

74 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
What year is utilized as the baseline year in the No Net Loss model

from which habitat losses and gains are subtracted or added? (21

April 1999 Questions, Question #1(a)).

Canada provided the baseline year for two facilities: John Hart

(1995); and the Ruskin facility on the Stave River (1989) (11 June

1999 Response to 21 April 1999 Questions, p. 2). Canada states that

the baseline year is “the year in which specific problems at a facility

result in assessments and/or actions by F&OC to address these

problems.” Canada states further that “[t]he baseline year will be

different for each facility.” The additional baseline years requested

were not provided.

105. Canada was asked to provide a detailed sample NNL calculation

for a facility, preferably one of the six of interest:

Please provide a detailed sample No Net Loss calculation for a facility, preferably one of the six facilities of interest, for which No Net

Loss has been calculated. (21 April 1999 Questions, Question #1(d)).

106. The response to this request is as follows:

The calculation of a habitat balance sheet for existing hydro facilities

is a complex undertaking. At hydro facilities, variability of flows or

water levels above and below facilities, and day-to-day system operations, which make it difficult to clearly identify and quantify impacts.

Accordingly, we utilise whatever information is available and exercise a conservative evaluation by departmental biologists, engineers,

scientists and external experts to establish the requirements for No

Net Loss.

The Independent Experts of the Secretariat have asked for a detailed

calculation of No Net Loss for one of the six identified facilities. We

will provide details concerning the development of the Campbell

River Interim Flow Strategy, which was initiated in 1995 following

spill events from John Hart which damaged spawning areas downstream of the dam. These spawning channels were in large part constructed as a result of work undertaken by the Vancouver Island

Hydro/Fisheries Technical Committee between 1992 and 1995.

• 1992— Formation of the Vancouver Island Hydro/Fisheries Technical Committee.

• 1992-95 — Detailed studies undertaken to assess salmonid habitats in the lower Campbell River to assess carrying capacity for

salmonids, identify limiting factors and identify enhancement

opportunities.

BC HYDRO FINAL FACTUAL RECORD 75
Based on these studies, spawning and rearing was determined to

be limiting in the lower river. Spawning was determined to be limiting due to lack of suitable spawning gravel. For chinook salmon,

existing spawning capacity was estimated to be 554, well below

historic escapements and the F&OC target escapement of 4000.

Steelhead spawning capacity was 296 as compared to the target

escapement of 500.

Rearing habitat for all salmonid species was also determined to be

limited due in part to unsuitable depths and velocities from turbine discharges below John Hart. Flow fluctuations from ramping

were also determined to be significant.

• 1995 — Construction of spawning and rearing channels in the

lower river.

• November 1995 — Spills from John Hart damage spawning channels.

• December 1995 — Formation of the Campbell River Hydro/Fisheries Advisory Committee.

• May 1997 — Campbell River Hydro/Fisheries Advisory Committee issues its Interim Flow Management Strategy. This report identifies requirements for habitat works to meet target escapements

and proposes flow modifications to BC Hydro operations to

enhance habitat productivity. Some specific prescriptions include:

• Provision of additional spawning area (5200-6200 sq. m.) to

meet F&OC escapement targets for chinook.

• Rearing habitat for chinook to be improved through instream

complexing and habitat development and estuarine rehabilitation (not specific to BC Hydro).

• Steelhead rearing would be improved by lowering the minimum flow in the river during the summer using a target of 1200

cfs with a minimum of 1000 cfs.

• Implement flow targets which attempt to mimic the natural

hydrograph.

• Implement new ramping rates to reduce stranding of juvenile

salmonids.

It was the opinion of the Committee that implementation of the strategy would provide habitat conditions in the lower Campbell River

that would enable F&OC and MELP to meet target escapements

within a decade of implementation. A copy of the Campbell River

76 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Interim Flow Management Strategy was enclosed in the March 1999

Water Use Planning Management Committee submission to the Independent Experts of the Secretariat for consideration. We encourage a

thorough review of this document since it provides much greater

detail than included here. (11 June 1999 Response to 21 April 1999

Questions, pp. 3-4).

107. The Expert Group describes the response to Question #1(d) as

follows:

In its response to Question 1(d), Canada does not provide a detailed

sample No Net Loss calculation for a facility. Instead it states that

“calculation of a habitat balance sheet for existing hydro facilities is a

complex undertaking” and that “variability of flows or water levels

above and below facilities, and day-to-day system operations, which

make it difficult to clearly identify and quantify impacts.” (11 June

1999 Response to 21 April 1999 Questions, p. 3). In lieu of the detailed

calculation of No Net Loss for a facility Canada offers the details of the

development of the Campbell River Interim Flow Strategy (ibid.).

(Appendix 8, para. 47).

108. In its June 11 response to Question #5, Canada states that baseline

conditions are defined as “incrementally improving current habitat productive capacity to arrest the decline in fish production

potential.” (11 June 1999 Response to 21 April 1999 Questions, p. 9).

The Expert Group provides the following information concerning

this definition:

This statement suggests that Canada considers baseline conditions to

have been achieved when the decline in habitat capacity has stopped.

The purpose of establishing a baseline should be to quantify the

amount of habitat at a certain point in time and then attempt to restore

habitat to that level and maintain it at that level. The definition cited

does not reflect that goal. (Appendix 8, para. 48).

3.1(4) Information Concerning the Use of No Net Loss

109. Conflicting information was provided as to whether achieving

NNL would be an appropriate benchmark for effective enforcement of s. 35(1) of the Fisheries Act.

110. As noted above, Canada asserts that achieving NNL constitutes

effective enforcement of Fisheries Act s. 35(1). (See paras. 81, 99).

BC HYDRO FINAL FACTUAL RECORD 77
111. The Submitters assert that achieving NNL would not constitute

effective enforcement of Fisheries Act s. 35(1). The Submitters claim

that NNL is different from compliance with s. 35(1) because NNL

allows destruction of some fish habitat so long as there is no overall

net loss, while s. 35(1)’s prohibition against harming fish habitat is

not qualified in this way:

[A]chievement of “no net loss” is not equivalent to effective enforcement of section 35 of the Fisheries Act. . . .The determination of whether

there has been a harmful alteration, disruption, or destruction of habitat, for the purposes of section 35(1) of the Fisheries Act, is not dependant upon an overall net loss of habitat. (Submitters’ 24 March 1999

Submission, pp. 3-4).

112. The Expert Group raises three issues relating to whether achieving

NNL would produce compliance with s. 35(1).

• First, the Expert Group raises the issue of whether Canada’s

application of NNL to BC Hydro facilities will lead Canada “to

accept or condone harm to habitat before the baseline is set.”

(Appendix 8, para. 44, emphasis added). As an example, the

Expert Group cites the John Hart facility, where the baseline

year is many years after the facility was put into place and many

years after harm to fish habitat may have occurred on an ongoing or regular basis.

In the example of John Hart, there could have been significant

declines in habitat between the time when the facility was

installed and 1995, when the baseline year for habitat levels was

set and from which net loss and net gain are calculated. Under

DFO’s Policy, if the habitat is improved a small amount above

what it was in 1995 this would be considered a net gain. However, the productive capacity of the habitat could still be significantly lower than it was originally, or in 1977, when Section 35(1)

of the Fisheries Act was enacted, in 1986, when the No Net Loss

policy was adopted, or in 1994, when the NAAEC was established. In the John Hart situation, for example, there could have

been incremental harm to fish habitat in the years prior to 1995

but Canada would not consider this harm in setting its baseline at

the level of fish habitat present in 1995. (Appendix 8, para. 43).

The Expert Group states that “[i]f baseline years for other facilities are in the same general time frame, it is likely that there have

been significant habitat losses at many if not all hydroelectric

78 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
facilities over the past two decades that would not be captured

by the NNL principle due to the manner in which baseline years

for NNL are established.” (Appendix 8, para. 43. See also

Appendix 8, para. 51).

• Second, the Expert Group raises the issue of whether application of NNL to BC Hydro facilities will lead to habitat loss after

the baseline is set so long as compensation is made for such

losses. The Expert Group notes that relocation, redesign, and

mitigation are the order of preferences for avoiding any loss

or harmful alteration of habitat. The Expert Group adds that

“[a]lthough the various forms of compensation are least preferred, they remain an option for all proposals.” (Appendix 8,

para. 37; See 1998 C&P Guidelines, pp. 7-8; and paras. 85, 86

above). Given this hierarchy, “Canada would seem to condone

harm after the baseline is set so long as the harm is compensated

consistent with the NNL policy.” (Appendix 8, para. 44). Later

in its Report, the Expert Group states that given the hierarchy of

preferences, the Policy “technically allows for the complete

elimination of natural fish habitat. The NNL principle allows for

the destruction of fish habitat short of complete elimination as

well.” (Appendix 8, para. 220; See also Appendix 8, para. 37) The

Expert Group states “[a]lthough compensation is nominally

excluded when a project impacts critical fish habitat . . ., the possible need for compensation after the fact is acknowledged.”

(Appendix 8, para. 37).

• Third, the Experts raise the issue of whether Canada sets baselines in a comprehensive way—that is, whether Canada

assesses all of the impacts to fish habitat in setting a baseline.

The Experts indicate that there is insufficient information to

answer this question. The Experts further indicate that an

approach to setting baselines that only assesses some of the

impacts on fish habitat would raise methodological concerns

regarding the value of such baselines.

It is clear that hydroelectric operations create many different

impacts on fish habitat. In some cases, such as the John Hart project, Canada has taken a fairly comprehensive approach, through

the formation of the Campbell River Advisory Committee to

identify and address a wide range of impacts at the facility to

ensure that there is NNL from 1995 on. In its responses to our various questions, Canada has not itemized the full range of impacts

at each site and has not indicated which of these are being

BC HYDRO FINAL FACTUAL RECORD 79
addressed and which are being accepted as “pre-baseline.” Thus,

it is not possible for the Expert Group to review whether Canada’s baseline approach is sufficiently comprehensive to establish a baseline for all harmful impacts on fish habitat. (Appendix

8, para. 52).

113. The Expert Group makes two other statements concerning NNL.

The first is that there is insufficient information to review whether

Canada has achieved NNL with respect to BC Hydro’s facilities:

Canada has not provided sufficient information for outside reviews

of its assertion that it is achieving No Net Loss at individual BC Hydro

facilities or for the hydroelectric system as a whole. (Appendix 8,

para. 54).

The second is that a variety of examinations of NNL have concluded that, as a general matter, to date, the NNL policy has failed

to protect fish habitat:

Various other examinations of NNL, including A Review of Salmon

Stock Status (Slaney, et al. 1996, Status of Anadromous Salmon and

Trout in BC and Yukon, Fisheries 21: 20-35), a DFO sponsored workshop (Quadra Planning Consultants 1997, No Net Loss of Habitat:

Assessing Achievement, Habitat and Enhancement Branch, DFO,

Vancouver), an evaluation by a committee of experts (The Living

Blueprint for Salmon Habitat, published by the Pacific Salmon Foundation) and the Pacific Fisheries Conservation Council (annual report

1998-99) have all concluded that the NNL policy has failed to protect

fish habitat. (Appendix 8, para. 53).

3.2 The Water Use Planning (WUP) Process

114. This section on the Water Use Planning process (“WUP process”)

contains seven subsections: 1) an introduction; 2) a brief summary

of the reasons for creating the WUP process; 3) a review of the basic

principles of the WUP process; 4) information concerning the level

of commitment to the WUP process; 5) an overview of the process

for developing water use plans, including some of the concerns

raised about the process; 6) a summary of actions/benefits to date;

and 7) information concerning issues regarding the future effectiveness of the WUP process.

80 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
3.2(1) Introduction to the WUP Process

115. The Province of British Columbia announced the Water Use Plan

(WUP) initiative in November 1996. (Canada’s July 1997 Response,

p. 9).

116. The Water Use Plan Guidelines issued in February 1999 state that

the WUP process is a new one and that is it likely to evolve over

time. (1999 WUP Guidelines, p. 9).

117. In its March 1999 Submission, the Water Use Plan Management

Committee describes the WUP program as “a major new initiative

undertaken by the Province of British Columbia, DFO and, in the

first instance, BC Hydro.” (WUP Management Committee’s March

1999 Submission, p. 4).13

118. Canada’s March 1999 Submission indicates that the WUP initiative

is “[o]ne of the most promising” responses to hydro facilities Canada has undertaken. (Canada’s March 1999 Submission, p. 1). In a

30 January 1997 letter to the province, Canada states that it views

water use planning as a “very positive, cooperative process to

address outstanding fisheries issues related to licensed water use

for all hydroelectric facilities across the province.” (DFO’s 30 January 1997 Letter).

119. Canada explains in its July 1997 Response that “[t]he WUP is an initiative to review all BCH water licenses and to develop water use

plans for each of the facilities.” (Canada’s July 1997 Response, p. 9).

The result of these plans will be a “re-allocation of water for fish

and mitigative measures (e.g., habitat restoration, etc.), where

required, to resolve the long-standing fish impact issues.” (Canada’s July 1997 Response, pp. 9-10).

120. The water use plans “will form part of the BCH water licenses and,

as such, be binding statutory instruments.” (Canada’s July 1997

Response, p. 10; See also WUP Management Committee’s March

1999 Submission, p. 12). The WUP Management Committee indiBC HYDRO FINAL FACTUAL RECORD 81

13. The Water Use Plan Management Committee’s March 1999 Submission indicates

that the Committee is composed of: the Ministry of Employment and Investment;

BC Fisheries; DFO; Ministry of Environment, Lands and Parks; BC Hydro; and the

Crown Corporations Secretariat.
cates that a water use plan “defines the operating parameters to be

imposed on specific works or water control facilities.” (WUP Management Committee’s March 1999 Submission, p. 11).

121. According to the WUP Management Committee, DFO is a “full

participant” in each step of the WUP process. It “will review each

WUP and provide advice and authorizations as appropriate . . .

prior to implementation of the WUP.” (WUP Management Committee’s March 1999 Submission, p. 16). In particular, if there will

be continuing fish impacts, and if Canada supports issuance of the

WUP, Canada will issue a “single authorization to cover all fish

impacts arising from the WUP operating parameters, with all mitigation and compensation embedded in the WUP.” (WUP Management Committee’s March 1999 Submission, p. 14). Operations that

are in accordance with the terms and conditions of a Water Use

Plan approved by DFO will be in compliance with the Fisheries Act.

(WUP Management Committee’s March 1999 Submission, p. 12). If

there are no remaining fisheries impacts, no formal response from

DFO is required. (WUP Management Committee’s March 1999

Submission, p. 14).

122. The Water Use Plan Guidelines establish a 13-step process for initiating, developing, and reviewing WUPs. The Submitters express

concerns about several features of this process. (See, for example,

Submitters’ 22 March 1999 Submission, pp. 10-13). The 13-step

process, and the Submitters’ concerns about it, are covered below

in Section III.B.3.2(5).

123. The Water Use Plan Management Committee indicates that the

WUP initiative is a “five-year program with actual operating

changes occurring in years 4 and 6/7 (after two sets of approval

processes are complete).” (WUP Management Committee’s March

1999 Submission, p. 28). A schedule for the program as of April

1999 is included as Appendix 9. Pending development of WUPs,

interim orders have been issued for several facilities in recent years

to alter hydroelectric operations so as to reduce their impacts on

fish habitat. (WUP Management Committee’s March 1999 Submission, pp. 19-24).

124. The Water Use Plan Management Committee contemplates that

the WUP process will include identifying and filling data gaps in a

number of areas. (See, for example, WUP Management Commit82 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tee’s March 1999 Submission, pp. 16, 29). The Management Committee highlights this need as follows:

Information collection and exchange is an essential component of

water use planning. This encompasses consolidation of existing information . . . as well as new studies where critical information is needed

for decision-making purposes. (WUP Management Committee’s

March 1999 Submission, p. 29).

The Management Committee expresses the view that WUP’s

emphasis on information, and the generation of information

that will result from the process, will lead directly to improved

decision-making. “Because of the emphasis on information, it is

expected that the WUP process will result in significantly better

informed decisions.” (WUP Management Committee’s March

1999 Submission, p. 29).

The WUP Guidelines contemplate identifying and/or filling data

gaps during several steps of the process. (See, for example, 1999

WUP Guidelines p. 20 (Step 2), pp. 24-25 (Step 5), and p. 15 (noting

that “[p]lans are expected to include adaptive management provisions to gather new information as WUPs are implemented”)).

Similarly, a 4 November 1998 letter from the Province of British

Columbia to BC Hydro notes that “more work is still required to

address information gaps, particularly with regard to fish and

aquatic resources, to ensure informed resource management decisions.” (4 November 1998 letter from Mike Farnworth, Minister,

Ministry of Employment and Investment, British Columbia, to

Mr. Michael Costello, President and Chief Executive Officer, BC

Hydro, p. 1) (“Minister Farnworth’s 4 November 1998 Letter”).

125. The Water Use Plan Management Committee contemplates that

the WUP process will be adaptive in nature as information is developed concerning the impacts of hydroelectric operations on fish

habitat, and concerning the options for resolving such impacts,

among other issues. (See, for example, WUP Management Committee’s March 1999 Submission, pp. 16, 29).

126. The Water Use Plan Guidelines state that “[t]he WUP process does

not alter existing legal and constitutional rights and responsibilities.” (WUP Management Committee’s March 1999 Submission,

p. 13 and Attachment F). The Water Use Plan Management Committee states that WUPs are “[n]ot intended to fetter the discretion

BC HYDRO FINAL FACTUAL RECORD 83
of . . . the Minister of Fisheries and Oceans.” (WUP Management

Committee’s March 1999 Submission, p. 12). One issue involves

the impact of the Terms of Reference for the WUP Policy Committee on Canada’s fulfilling its responsibilities under the Fisheries Act.

The Terms of Reference establish that “trade-offs among different

water users and interests is part of the WUP process.” The Terms of

Reference continue that trade-offs occur within certain boundaries, including provincial funding constraints.” (WUP Management Committee’s March 1999 Submission, p. 13). A second issue

involves the impact of the WUP program’s provision for dispute

resolution on Canada’s rights and responsibilities under the Fisheries Act. The possibility of dispute resolution was raised but not

discussed in detail. (WUP Management Committee’s March 1999

Submission, p. 16). A third question involves the nature of the

actions Canada will take in the event that one or more WUPs do not

lead to issuance of s. 35(2) authorizations, or if terms of a WUP

intended to prevent harm to fish habitat are not met or do not

accomplish their intended purpose. (See, for example, Appendix 8,

para. 235).

3.2(2) Historical Context

127. The WUP Management Committee identifies a shift in public values as one factor leading to establishment of the WUP initiative.

The Committee notes the increased importance attached to values

such as fish and fish habitat in the operation of water control facilities. The Committee indicates that an increasingly active role taken

by public interest groups, among other factors, has caused federal

and provincial governments to take a stronger stance on the management of fish and fish habitat at power facilities:

Most water licenses for power purposes, especially for BC Hydro,

were granted before 1962 at a time when the public values leaned

heavily towards economic development. More recently, other values

(e.g., fish and fish habitat) are being given greater consideration in

the operations of water control facilities. . . .

For the most part, federal and provincial governments are now taking

a stronger stance on the management of fish and fish habitat, particularly at power facilities around the province. This has in part been

driven by [the] more active role taken by public interest groups.

(WUP Management Committee’s March 1999 Submission, p. 5).

84 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
128. Combined with this increased public and government concern for

the impacts of BC Hydro operations on fish habitat, there is a desire

to address data gaps that exist with respect to these impacts. The

governments’ objective is to use the WUP process to generate and

collect data important for enhancing understanding of fish habitat,

the impacts of hydroelectric operations on such habitat, and how

best to reduce these impacts. For example, the Water Use Plan

Management Committee indicates that “[t]he Water Use Plan Program, with its emphasis on information collection, is also designed

to address these [data] gaps.” (WUP Management Committee’s

March 1999 Submission, p. 6).

Later in its March 1999 Submission, the Water Use Plan Management Committee elaborates on the need for more data to understand better the harm that the BC Hydro operations are causing to

fish habitat and the appropriate strategies to address such harm:

[T]here is a considerable amount of data on fish habitat downstream

of several of the BC Hydro facilities. In several cases, the data points to

unresolved impacts on fish and fish habitat at the facilities. However,

the data in most cases is incomplete. Definitive conclusions about

appropriate flow regimes or required habitat conditions cannot be

made. With respect to the BC Hydro WUPs, data collection will be a

collaborative process between BC Hydro, DFO and the province and

will be key in developing and evaluating alternative operating plans.

(WUP Management Committee’s March 1999 Submission, p. 16).

129. The governments have recognized for some time that data gaps

exist. In June 1993, the Province of British Columbia directed BC

Hydro to conduct an Electric System Operations Review (ESOR)

to “determine whether its electric generation system operations

could be altered to increase net social and environmental benefits

for the province.” (1995 Government Response to ESOR, p. i.)14 In

its 1995 response, entitled Government Response to BC Hydro’s

Electric System Operations Review, the Provincial Government

BC HYDRO FINAL FACTUAL RECORD 85

14. The province explained the reason for initiating the 1993 ESOR initiative as follows:

The impetus for the government’s direction that BC Hydro conduct an Electric System Operations Review (ESOR) stems, in part, from historic concerns among

affected communities and certain government agencies. Both groups feel that

BC Hydro operates its electric system generation facilities . . . in a manner which

does not give adequate consideration to non-power resource values which include

forestry, fish and wildlife, recreation and tourism, transportation, water use, air

quality, water quality, heritage resources and aesthetics.

BC Hydro has historically operated its electric generating system in accordance

with power production objectives and attendant flood control advantages....
Liaison Committee (GLC), an Assistant Deputy Minister-level

committee that oversaw the conduct of the ESOR process and

reviewed the ESOR final report, identifies the existence of significant information gaps in fish and aquatic resources data:

The government analysis of the ESOR final report concludes that the

ESOR process, as documented, largely addresses the scope of the

Terms of Reference set out in the June 4, 1993 “directive” letter from

government. This conclusion is tempered, however, by the fact that

little data on fish and aquatic resources are available and therefore

could not be included in the evaluation. (1995 Government Response

to ESOR, p. 6).

Regarding the limited fish and aquatic resources data, the province

states that “[t]here is a need to address this shortcoming... which

can be attributed to the ‘overview’ nature of the study as well as

time and budget constraints.” (1995 Government Response to

ESOR, p. i). The province continues:

Fisheries officials believe that a continuing, more comprehensive

examination of the aquatic resources affected by BC Hydro’s operations and the available options is necessary to address this topic. The

present level of knowledge is not considered sufficient to determine

whether there are significant opportunities for fisheries and aquatic

ecosystem rehabilitation through changes to BC Hydro’s system

operations. (1995 Government Response to ESOR, p. 19).

The province indicates that BC Hydro recognizes this data gap as

well:

While generally supportive of the concept of the ESOR, and cognizant

of the time and resource constraints which BC Hydro faced, provincial fisheries officials are concerned that general conclusions about

the social benefits of electric system operations changes, and the specific operations changes which were evaluated, were selected based

on limited fisheries information. The ESOR final report acknowledges this view by stating, “. . . [t]he current knowledge based on the

impact of alternative operations on fish and aquatic resources [in BC

Hydro impacted watersheds] is limited . . .” and that “. . . [d]ecisions

86 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

However, within this context, non-power values have occasionally been substituted for the aforementioned power and flood control objectives in certain circumstances, but not always in a systematic, clearly articulated basis. (Government

Response to ESOR, p. 3).
on operational procedures and identification of specific operating

alternatives to optimize conditions for fish required much more

work.” (1995 Government Response to ESOR, p. 19).

In its March 1999 Submission, Canada states: “There is generally a

lack of data on fisheries information before and after construction

as well as fish/flow/habitat relationships.” (Canada’s March 1999

Submission, p. 8). Later in the same submission, Canada states:

One of the significant constraints in regulating the industry (and

prosecuting) is the lack of scientific understanding of the effects of

hydro facilities on fish and fish habitat. DFO’s knowledge base has

increased significantly by participating in joint studies with other

regulators and BC Hydro—one of the significant elements of Water

Use Planning is the generation of better studies of hydro facilities.

(Canada’s March 1999 Submission, p. 18).

Along the same lines, Canada later indicates:

It is also important to recognize that currently DFO does not have sufficient data to determine specific fisheries requirements at each facility. . . . The WUP process allows for data collection funded by BC

Hydro to provide the level of information required by the agencies to

make reasoned decisions concerning issues such as flow requirements for fish, water quality mitigation, habitat restoration opportunities etc. Basic information such as standing stock information,

biophysical assessment, flow-habitat relationships will be collected

for most systems to assist decision making by the agencies and stakeholders in the WUP process. (Canada’s March 1999 Submission,

p. 30).

While data gathering has been undertaken since the 1995 Government Response to ESOR, data collection will be an important

element of the WUP process.

130. Another factor leading to creation of the WUP process appears to

have been the positive experience with processes that included

a wider spectrum of interested parties than traditionally were

involved to develop plans to address concerns with fish impacts

caused by various BC Hydro facilities. The Water Use Plan Management Committee offers a positive summary of the experiences

involving Stave Falls, the South Alouette River, and the Campbell

River John Hart facilities. The processes used “had various

non-traditional features designed to include a wider spectrum of

interested parties in the development of the plan.” These positive

BC HYDRO FINAL FACTUAL RECORD 87
experiences with including a wider spectrum of interested parties

influenced the nature of the WUP process. (WUP Management

Committee’s March 1999 Submission, pp. 6-7).15

131. BC Hydro indicates that the WUP process will provide a needed

degree of “regulatory clarity” for BC Hydro operations:

BC Hydro needs clear operating boundaries for its facilities in order

to fully utilize its assets while managing the water resource in a

legally and environmentally responsible manner. The implications

of the Fisheries Act combined with the voicing of other competing

demands for the water resource, have made BC Hydro’s rights to

operate less clear in recent years. . . .

Consequently, a water use plan provides regulatory clarity for BC

Hydro. Within the bounds set, the company will have the flexibility

to maximize operating efficiency, while meeting fisheries needs.

(BC Hydro’s February 1999 Submission, pp. 19-20).

3.2(3) Principles of the WUP Process

132. The WUP Committee identifies six key “principles” of the WUP

process.

• “Recognition of multiple objectives:” WUP will consider a variety of objectives, including but not limited to environmental

concerns;

88 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

15. The Alouette Stakeholder Committee (ASC) provides a positive perspective on the

Alouette experience:

[T]he discussions of the ASC have gone a long way toward creating a new atmosphere of trust and cooperation among a diverse group of community, First Nation,

federal, provincial, and BC Hydro stakeholders. (ASC Report, p. iv).

The ASC suggests that the process

hold[s] the potential for defining a new relationship between BC Hydro and the

community.... [T]here now exists a working environment involving the stakeholders and their respective organizations, in which cooperation is replacing divisiveness and trust is replacing mistrust. (ASC Report, p. 51).

The BC Wildlife Federation offers a less positive perspective on the Alouette process, although BCWF notes that the “resulting flows are acceptable and appreciated:”

In this case the methodologies applied by BC Hydro to assess the impacts on fish

from different flows were methodologically flawed according to the scientific literature, as well as, strongly refuted by provincial and federal agency staff. . . . In the

opinion of the BCWF members, the stakeholder process used on the Alouette was

flawed and poorly facilitated, but the resulting flows are acceptable and appreciated. (4 April 1998 letter from John B. Holdstock, BC Wildlife Federation, to

Hon. David Anderson, Minister, Fisheries and Oceans Canada, and Hon. Cathy

McGregor, Minister, Environment, Lands and Parks, p. 3).
• “No change to existing legal and constitutional rights and

responsibilities:” WUP will safeguard regulatory powers of the

Fisheries Act;

• “Collaborative, cooperative and inclusive process:” WUP will

be an inclusive process.

• “Recognition that trade offs (choices) have and will occur:”

WUP will pursue “incremental improvements” in balancing

various water uses because of inherent conflicts in the management of water, such as the conflict between fish and power.

• “Embodies science and continuous learning through information gathering and analysis:” information gathering is a “key

element” of WUP;

• “Focus on issue resolution and long-term benefits:” the goal is

for WUP to produce real results that can be measured. (WUP

Management Committee’s March 1999 Submission, p. 11).

3.2(4) The Level of Commitment to the WUP Initiative

133. In its March 1999 Submission, the WUP Management Committee

indicates that the Committee is at the stage of developing a plan to

sequence WUP activities and to confirm adequate resources from

key players. “At present, a detailed program plan is being developed to sequence WUP activities and to confirm adequate

resources from key players (e.g., DFO, MELP).” (WUP Management Committee’s March 1999 Submission, p. 17). The governments indicate that they are “committed to providing necessary

resources to develop WUPs... within the five-year timeframe”

and that “[t]he budget reflects the costs of completing the process

(i.e., development of WUPs).” (11 June 1999 Response to 21 April

1999 Questions, p. 10).

134. The British Columbia Government states that the estimated cost of

developing WUPs for all of BC Hydro’s hydroelectric facilities

will be in the order of $35 million and that costs will be borne

by BC Hydro, DFO and the Provincial Government. (Minister

Farnworth’s 4 November 1998 Letter, p. 3).

135. As indicated above, the Water Use Plan Management Committee

indicates that DFO will be a “full participant” in each step of water

BC HYDRO FINAL FACTUAL RECORD 89
use planning. (WUP Management Committee’s March 1999 Submission, p. 16, see also pp. 12-14). DFO “will review each WUP and

provide advice and authorizations as appropriate.” (WUP Management Committee’s March 1999 Submission, p. 16). The Committee states that DFO will perform this review and approval

responsibility “after or simultaneously with an approval under

the Water Act but prior to implementation of the WUP.” (WUP

Management Committee’s March 1999 Submission, p. 16). DFO

also has a role in the WUP “management structure” established

to administer the WUP initiative. This management structure

includes a WUP Management Committee (staff level), a WUP

Steering Committee (assistant deputy minister level), and a WUP

Policy Committee (deputy minister/director general level). (WUP

Management Committee’s March 1999 Submission, p. 18). The

Water Use Plan Management Committee indicates that “DFO will

always retain its statutory authority.” It continues: “However, the

WUP program provides for dispute resolution.” (WUP Management Committee’s March 1999 Submission, p. 16).

In its comments on the draft Guidelines, the BC Wildlife Federation (BCWF) indicates that the DFO should be an integral part of

this process from the beginning. According to the BCWF, “[i]t

makes no sense to dump the finished WUP on DFO for their

review. DFO will not necessarily be able to trust, or agree with, the

research completed on fisheries generated by the licensee/proponent as was the case in the Alouette WUP.” (BCWF’s 4 April 1998

Letter, Comment #10). The Water Use Plan Management Committee’s March 1999 Submission indicates that, as noted above, DFO

will be involved at each stage of the process. (WUP Management

Committee’s March 1999 Submission, p. 16).

136. The Provincial Government has directed BC Hydro to participate

in a review of its hydropower water licences for the purpose of

developing WUPs. (Minister Farnworth’s 4 November 1998 Letter). The 21 April 1999 Questions inquire about BC Hydro’s commitment to participate in the WUP process.

Apart from the letter from Mike Farnworth, Minister of Employment

and Investment, to . . . BC Hydro . . ., directing BC Hydro to participate

in the review of its water licenses, what other form of commitment...

is there to ensure that BC Hydro will participate in the WUP? Could

BC Hydro withdraw from the WUP, and if it did what would happen?

(21 April 1999 Questions, Question #8).

90 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The Water Use Plan Management Committee responded that BC

Hydro could theoretically refuse to comply with the letter from

Minister Farnworth, but that such an outcome was unlikely for

several reasons:

Theoretically the corporation could refuse to comply with the letter of

direction but this would be unlikely and not in the best interests of

the corporation. As with any corporation its Board of Directors is

accountable to their shareholder, which in this case is the provincial

taxpayers represented by the Minister Responsible and Cabinet, who

have the ability to take whatever corrective action is deemed necessary to ensure that its directives are implemented. . . .

Further, . . . the corporation sees the WUP program as important from

a business perspective. BC Hydro made numerous very public commitments to the development of WUPs at all its facilities and is cognizant of the risks to operational flexibility of not meeting expectations

built up among its political, regulatory, First Nations, community,

ENGOs and public stakeholders. (11 June 1999 Response to 21 April

Questions, p. 12).

137. The WUP Management Committee offers the following statement

concerning the funding of WUPs:

At various points, yet to be determined, during the five-year period

groups of WUPs will be submitted for “funding” consideration under

the System Operations Fund (SOF). As noted in the March 1999 WUP

information, it is anticipated that the final value of reduced power

benefits from WUPs could be in the order of $50 million [per year].16

It is premature at this time to fix the possible size of the SOF, since

issue identification and resolution and trade-offs as part of individual

WUPs have not yet occurred. (11 June 1999 Response to 21 April

Questions, p. 10).

3.2(5) The Process for Developing WUPs

138. The WUP Management Committee states that “[p]reparation of

guidelines to frame and provide structure for water use planning

was . . . identified as one of the first deliverables of the program.”

(WUP Management Committee’s March 1999 Submission, p. 15).

The Water Use Plan Guidelines were released in February 1999.

(WUP Management Committee’s March 1999 Submission, p. 15).

BC HYDRO FINAL FACTUAL RECORD 91

16. In its 11 May 2000 comments on the draft Factual Record, Canada indicates that

“the final value of reduced power benefits is $50 million per year.” (See Appendix

10).
139. The Guidelines establish a 13-step process for developing and

implementing WUPs. These 13 steps are as follows (all page references below are to the 1999 WUP Guidelines):

1) “The Comptroller initiates a WUP process for the particular

facility.” (pp. 1, 16).

2) “The licensee or proponent scopes the water use issues and

interests with regulatory agencies and key interested parties.” This scoping effort includes, among other activities,

meetings among interested parties to identify key issues

and interests, reviewing available information on water use

impacts, and identifying information gaps and the need for

further studies to develop a WUP. (pp. 2, 20).

3) “The licensee/proponent determines the consultative process to be followed and initiates it.” The licensee, in consultation with the Comptroller, establishes the process for

involving interested parties. (pp. 2, 21-22).

4) “The licensee or proponent, together with the other participants, confirms the issues and interests in terms of specific

water use objectives.” The Guidelines indicate that every

WUP “must consider fish and aquatic habitat protection,

flood control, beneficial use of the water (e.g., power generation), and First Nations issues; other issues, such as recreation

and navigation, may also be taken into account, depending

on the facility.” (pp. 2, 23).

5) “The licensee/proponent gathers additional information on

the impacts of water flows on each objective.” This step

includes conducting technical studies and gathering and

analyzing information from various sources. The Guidelines

indicate that the data gathering process may be an ongoing

one. They state that “[t]he draft WUP should document

remaining ’data gaps’ and a research program to fill them.”

(pp. 2, 24-25).

6) “The licensee/proponent, along with the other parties, creates operating alternatives for regulating water use to meet

different interests.” (pp. 3, 26).

92 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
7) “The licensee/proponent, together with the other participants, assesses the tradeoffs between operating alternatives

in terms of the objectives.” (pp. 3, 27).

8) “The participants determine and document the areas of

consensus and disagreement, and prepare a consultation

report.” The Guidelines specify that “[c]onsensus on an operating alternative for the facility is a goal, but not a requirement of the WUP consultative process.” (pp. 3, 28).

9) “The licensee or proponent prepares a draft WUP and submits it [to the Comptroller] for regulatory review.” If a consensus is achieved, the draft may include a signature page

indicating agreement by other participants. If no consensus is

achieved, the licensee selects a proposed operating regime.

(pp. 3, 29-30).

10) “The Comptroller . . . issues a decision,” following review

and comment from interested parties. WUP consultations are

advisory, providing information and facility operating proposals for use in the Comptroller’s decision-making. (pp. 4,

32-33). There is a right to appeal the Comptroller’s authorization of a WUP to the provincial Environmental Appeal Board

(EAB), but this right of appeal appears to be available to a

limited universe of parties, notably:

It has been the Board’s practice to accept appeals only from the

party receiving the order, other licensees or proponents, riparian

owners, and property owners physically affected by the works

or their operation. (p. 33).

11) “DFO reviews the authorized WUP and issues a decision.”

The Guidelines indicate that “[i]f DFO disagrees with the

WUP, it may exercise other regulatory options at its disposal.” (pp. 4, 34). As noted above, Canada indicates that

it plans to be involved throughout the WUP process, not

merely at this stage.

12) “The Comptroller and regulatory agencies... assess compliance with the authorized WUP,” through monitoring programs and reporting obligations of the licensee. The

Guidelines note that “[t]he licensee is accountable for meeting the WUP operating parameters, but not for achieving

objectives for other uses of water.” (pp. 4, 35).

BC HYDRO FINAL FACTUAL RECORD 93
13) “The licensee and Comptroller review the plan on a periodic

and ongoing basis,” specified in the WUP. (pp. 5, 36).

The WUP Management Committee indicates that the process is

“meant to be flexible to accommodate the needs of different physical locations of water control facilities and the different values and

interests of participants.” (WUP Management Committee’s March

1999 Submission, p. 16).

140. In their 22 March 1999 Submission, the Submitters raise several

concerns with the process leading to development of water use

plans. The Submitters assert that the WUP process “will not satisfy

the requirements of section 35 of the Fisheries Act” for the following

five reasons (Submitters’ 22 March 1999 Submission, p. 13; unless

otherwise indicated, all page references in this paragraph are to

this Submission):

• The WUP process is limited in its applicability. This view is based

on a five-step analysis. First, the Submitters suggest that “the

evidence adduced so far in this proceeding is that BC Hydro’s

day-to-day hydroelectric operations harmfully alter, disrupt

and destroy fish habitat.” (p. 10). Next, the Submitters indicate

that s. 35 “clearly requires that prior to undertaking an activity

that harmfully alters, disrupts, or destroys fish habitat, an

authorization must be received under sub-section (2).” (p. 13).

Third, they assert that “CEAA... clearly requires an environmental assessment before an authorization is issued.... [T]here

is no statutory authority for substituting an alternate process for

a CEAA assessment.” (p. 13). Fourth, the Submitters conclude

that the WUP process “will, therefore, only constitute effective

enforcement of section 35 if the WUP process meets (or exceeds)

the requirements of CEAA.” (p. 13). Finally, they contend that

“the WUP process does not meet the requirements of CEAA.”

(p. 13).

The Submitters point to Canada’s March 1999 Submission in

support of the point that the s. 35(2)/CEAA process applies to

this broad range of activities:

DFO interprets a section 35(2) authorization as being required

if the proposed project could cause the harmful alteration, disruption, or destruction of fish habitat. DFO also interprets the

Fisheries Act as applying to the day-to-day systems operations

of hydroelectric facilities. Therefore, if the day-to-day systems

operations of hydroelectric facilities could cause a harmful alter94 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ation, disruption, or destruction of fish habitat, an authorization

under section 35(2) is required if the activity is to proceed. (p. 10,

citations omitted).

In sum, on this point the Submitters assert that “the section

35(2)/CEAA process applies to a much broader range of activities than the proposed WUP process.” (p. 10). The Submitters

claim that s. 35(2) authorizations and, hence, CEAA, are applicable “whenever a person engages in an activity or undertaking

that harmfully alters, disrupts or destroys fish habitat.” (p. 10).

The Submitters claim that the WUP process may be more limited, that it “is engaged for new facilities, amendments to water

licences, the discretion of the Water Comptroller (due to a perceived ‘water use conflict’), and by licensee request.” (p. 10). The

WUP Management Committee states that WUPs will be developed for each of BC Hydro’s 34 facilities. (WUP Management

Committee’s March 1999 Submission, p. 17).

• The scope of the WUP process is too limited. The Submitters

state that the scope of the WUP process may turn out to be similar to that provided under CEAA, but it may turn out to be narrower, by failing adequately to consider cumulative impacts,

among other issues. (pp. 10-11).

Section 35(2)/CEAA Process: Under CEAA, every screening,

comprehensive study, mediation or review panel must consider:

• the environmental effects of the project, including the environmental effects or malfunctions or accidents that may occur

in connection with the project and any cumulative effects that

are likely to result from the project in combination with other

projects or activities that have been or will be carried out;

• the significance of the environmental effects;

• comments from the public;

• measures that are technically feasible and that would mitigate

any significant adverse environmental effects; and

• any other relevant matter that the responsible authority or

minister may require to be considered.

In addition, comprehensive studies, mediations, and review

panels also must consider:

• the purpose of the project;

BC HYDRO FINAL FACTUAL RECORD 95
• alternative means of carrying out the project; and an environmental assessment of the alternate means;

• the need for and requirements of a follow-up program; and

• the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present

and those of the future.

WUP Process: Under the WUP Process, the licensee or the proponent, with assistance [from] others, “scopes” the water use

issues, identifies “data gaps” and gathers additional information.

The Submitting Parties note that while the WUP Process may

result in essentially the same information being gathered as

would happen under the section 35(2)/CEAA process, this is

only a possibility and not a requirement. Of specific concern is

the absence of specific information requirements, particularly

with regard to issues such as the “cumulative effects” of facilities.

Also absent is a “responsible authority” that has the power to

require the consideration of specific issues. Based upon these

considerations, the Submitting Parties feel that the section 35(2)/

CEAA process will generally produce more useful and comprehensive information regarding hydroelectric facilities. (p. 11)

• Regarding public participation, the Submitters state that

“[t]here can be little doubt that the public is guaranteed greater

access to information and greater levels of input under the

Section 35(2)/CEAA process” than under the WUP process.

(pp. 11-12).

Section 35(2)/CEAA Process: The public participation provided

under CEAA varies dependant upon the level of assessment

require[d]. Public participation can be ordered as part of a screening

which precludes the public authority from taking any action prior to

giving the public an opportunity to review and comment on the

screening report. Comprehensive studies, mediations, and panel

reviews all make provision for the participation of the public and

require consideration of any public comments and participant funding may be available for mediations and panel reviews.

WUP Process: According to the WUP “Terms of Reference,” the general public “will be able to learn about a WUP process and have input

into plan development through open houses and other consultations.” The WUP Process Terms of Reference do not guarantee to the

public any right to information or ability to have their concerns considered.

96 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
There can be little doubt that the public is guaranteed greater access to

information and greater levels of input under the section

35(2)/CEAA process. The Section 35(2)/CEAA process also fulfills

Canada’s requirement, under Article 7(1)(b) of NAAEC, to ensure

that administrative proceedings are open to the public.

• The Submitters raise a number of issues relating to decisionmaking authority under the WUP process. The Submitters indicate that the scope of the Comptroller’s decision-making

authority may be too limited in two respects. First, the Submitters suggest that the Comptroller’s authority to “make the

appropriate licensing decisions and approve the plan... leaves

unclear the Comptroller’s discretion, if any, to reject a plan”

proposed by the licensee. Second, the Submitters express the

concern that the Comptroller “has no statutory authority to

consider fisheries or environmental concerns when making

licensing decisions.” (p. 12).

The Submitters contrast decision-making authority under the

WUP process with that under s. 35(2)/CEAA. As to the latter,

the Submitters assert that ultimate decision making authority

rests with an “independent government authority” with the

power to consider fisheries and environmental concerns, and

that this independent government authority may refer the matter for public review or take no action on it. (p. 12).

In their 24 March 1999 Submission the Submitters make a

related claim that the WUP process is flawed because it is

“largely directed” by BC Hydro. (Submitters’ 24 March 1999

Submission, p. 2; See also Submitters’ January 1999 Speaking

Points, p. 4 (asserting that, inter alia, Canada has little power

within the WUP process and the licensee has the ability to disregard the Plan produced through consultation and select the

operating regime it prefers)).

• The Submitters assert that features of the WUP process are

much less subject to judicial review than are the requirements

and prohibitions of the CEAA. They express their concern that

“relative to the section 35(2)/CEAA process, the WUP Process

lacks adequate (in fact, any) procedural safeguards to ensure the

integrity of the process.” They state that members of the public

who can fulfill the requirements of public interest standing can

enforce the requirements of CEAA in the Federal Court of Canada. They state that, in contrast, the legal recourse for members

BC HYDRO FINAL FACTUAL RECORD 97
of the public is far more limited under the WUP process. (pp.

12-13). For example, the Submitters indicate:

The Comptrollers decision to approve (or refuse) any licence

application may be appealed to the Environmental Appeal

Board by a very narrow group of interests (licencees/proponents, riparian owners, and any property owner affected by the

works); however, most participants in the WUP Process would

be left without any legal recourse. Any decision of the Environmental Appeal Board could be varied at the whim of the Provincial Cabinet, whose decision is virtually unreviewable. (p. 13).

In addition to the five reasons listed above, the Submitters raise the

concern that WUP will not be effective if it “wastes” significant

financial resources on fisheries mitigation and compensation measures, rather than devoting financial resources to alleviating the

impacts of hydropower operations on the natural fish-producing

systems. (pp. 3, 9; See also February 1999 Earthjustice Submission

(contending that this has occurred in the United States to some

degree and providing several examples)).

To sum up the Submitters’ concerns, they believe that the WUP

process will “not satisfy the requirements of section 35 of the Fisheries Act” unless it “meets (or exceeds) the requirements of CEAA.”

The Submitters believe that the WUP process will not do so for the

reasons listed above. As the Submitters stated in their 24 March

1999 Submission:

[T]he environmental assessment process under CEAA provides a

superior process than the intended Water Use Planning Process

(“WUP Process”). This is particularly true with respect [to] issues

such as the applicability of the process, scope of the assessment, public participation, independent decision-making, and procedural safeguards. (p. 2).

Further, the Submitters conclude that:

The WUP Process, as it is structured, runs the risk of repeating the

mistakes made in the US Pacific Northwest. Specifically, enormous

resources could be spent on a negotiated, stakeholder process that

may ultimately provide little benefit. Ultimately, once the WUP Process is completed, BC Hydro will still be out of compliance with section 35 of the Fisheries Act unless an assessment under CEAA is

conducted and an authorization under subsection (2) is issued. (p. 13).

98 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
141. The BC Wildlife Federation (BCWF) raises several concerns about

the WUP process in its 4 April 1998 letter to DFO and MELP (unless

otherwise indicated, all references in this paragraph are to this

letter). These concerns include the following:

• BC Hydro has too much power under the process. For example,

the BCWF challenges the ability of BC Hydro to undertake

acceptable analyses in terms of the scoping step (Comment #2).

The BCWF similarly asserts that step 3 is unacceptable because

it allows the licensee to set up the consultation process and it

claims that BC Hydro lacks the credibility to operate such a process. (Comment #3). BCWF raises the same issue with respect to

step 9, which provides that if no consensus is achieved on the

terms of a WUP, the licensee selects the operating regime to

propose. (1998 WUP Guidelines, p. 29). The BCWF asserts that

this role limits BC Hydro’s incentives to participate in the WUP

process in a meaningful fashion. (Comment #8).

• The BCWF disagrees with the limited right to appeal to the

Environmental Appeal Board. It asserts that the Board’s practice is “to accept appeals only from the party receiving the order,

other licensees or proponents, riparian owners, and property

owners physically affected by the works or their operation.”

The BCWF states that “[a]ny legitimate organization, government or nongovernment, should be allowed to launch an

appeal.” (Comment # 9).

• The BCWF emphasizes the importance of outside auditing of

compliance. (Comment # 11).

142. The Expert Group identifies a number of issues that may affect the

effectiveness of the WUP process (all paragraph references below

are to Appendix 8):

• Possible impacts on the credibility of the WUP process with the

public in light of the issues raised by the Submitters concerning

the extent to which the WUP process will be consistent with

Fisheries Act s. 35(2)/CEAA. (para.91(a)).

• The fact that WUP is not embodied in legislation or regulations

(other than the intent to include approved WUPs as conditions

of water licenses under the British Columbia Water Act). (para.

91(b)).

BC HYDRO FINAL FACTUAL RECORD 99
• The considerable discretion left to the water Comptroller and

the licensee (BC Hydro). (para. 91(b)).

• The reliance upon NNL and Canada’s strategy for implementing NNL in the context of BC Hydro’s facilities. (paras. 44-54,

91(c), 220-224).

• The extent to which WUP addresses the integrated nature of BC

Hydro operations. The Expert Group indicates that little information had been provided as to how the integrated nature of the

operations would be addressed:

The WUP program calls for the eventual inclusion of impacts at all BC

Hydro hydroelectric facilities. No information was provided as to

how the complex problem of integrated system operations is to be

dealt with. It is well known that impacts at individual sites and for the

system overall will vary according to the way in which the entire system is operated. (para. 93).

3.2(6) Actions/Benefits to Date

143. The governments were asked to provide information concerning

the benefits of the WUP process to date:

Please provide any factual information, in addition to the information

provided in the March 1999 Water Use Plan Management Committee

Submission, regarding the benefits to habitat that have resulted from

the WUP process to date including the interim orders, Campbell

River Interim Flow Management Strategy and Alouette Water Use

Plan. (21 April 1999 Questions, Question # 7).

144. The Province of British Columbia indicates that it has committed

$3.6 million per year for Interim Orders. The WUP Management

Committee provides the following explanation for these Orders:

The time frame to develop WUPs for the facilities was projected to be

approximately five years. In light of this and the need to act on some

specific issues immediately, a need for immediate results for fish at

certain high priority facilities was identified. It was agreed that

interm measures would be applied to help mitigate some impacts

where sufficient current fisheries data were available. (WUP Management Committee’s March 1999 Submission, p. 19).

The province indicates that it intends to keep these Interim Orders

in place until WUPs at the relevant facilities are complete. (11 June

100 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1999 Response to 21 April 1999 Questions, p. 10). Section 4.4 of the

WUP Management Committee’s March 1999 Submission identifies a list of several BC Hydro facilities that were to receive Interim

Orders, which are Orders of the Water Comptroller under the

Water Act, to help mitigate some impacts on habitat. (WUP Management Committee’s March 1999 Submission, pp. 19-20).

The Committee indicates that most of the orders affect flows and

that the goal is to ensure “that at least ‘baseline conditions’

(defined as incrementally improving current habitat productive

capacity to arrest the decline in fish production potential) would be

met.” (WUP Management Committee’s March 1999 Submission, p.

20). The WUP Management Committee’s March 1999 Submission

includes, for each facility subject to an Interim Order, “an overview

of the benefits for fish habitat resulting from operational changes at

the facilities.” (WUP Management Committee’s March 1999 Submission, p. 20). Two examples of these overviews are provided

below:

4.4.1 Alouette

The operational changes at Alouette provide an increase in the flows

from the previous minimum flow of 20-cfs to a flow ranging from 90

to 105 cfs (depending on reservoir levels). This flow is provided to the

river through the low-level outlets in the dam, which are kept fully

open.

The higher flows have resulted in increased spawning and rearing

habitat throughout the length of the river and have increased the

potential of the habitat to produce fish.

Before development of the Alouette WUP, habitat improvements,

including developing/restoring degraded spawning and rearing

habitat had been ongoing in the Alouette River as a result of cooperative work between BC Hydro and DFO, under the auspices of the

Lower Mainland Hydro Fisheries Technical Committee. Some of the

habitat restoration work involved the development of side-channels.

The increased flows will enhance the existing habitat restoration projects and provide additional habitat restoration opportunities. (WUP

Management Committee’s March 1999 Submission, pp. 20-21).17

BC HYDRO FINAL FACTUAL RECORD 101

17. A 1998 report prepared by a group of eight experts offers positive feedback on the

Alouette experience. Living Blueprint for BC Salmon Habitat, published in 1998 by an

Independent Panel (“Living Blueprint”), describes the Alouette experience in

some detail as follows:

After years of effort, the Alouette River Management Society—a community coalition supported by the federal Department of Fisheries and Oceans (DFO) and the
4.4.3 Campbell

. . . The anticipated benefits of the Interim Order for the Campbell

River below the John Hart Dam include:

1) improved spawning and rearing conditions resulting in

increased fish production;

2) decreased probability of high flood flows resulting in decreased

habitat losses and less disruption of spawning and rearing fish;

and

3) decreased flow fluctuations resulting in decreased fish losses

due to stranding. (WUP Management Committee’s March 1999

Submission, p. 23).

Interim Orders for Puntledge, Coquitlam, Stave, Heber, and

Salmon, and the benefits they are intended to produce, are summarized as well.

The governments indicate that a series of studies are underway

that are intended to evaluate the effectiveness of these interim

steps:

Available information concerning the benefits to habitat from the

interim flows, Campbell River Interim Flow Strategy and Alouette

Water Use Plan was already provided in the previous Water Use Plan

(WUP) Management Committee Submission (see Section 4.4).

There is no additional information available which can conclusively

demonstrate the benefits of these actions. Studies are, however, currently underway to monitor the effectiveness of these measures.

(11 June 1999 Response to 21 April 1999 Questions, p. 11)

102 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

provincial Ministry of Environment, Lands and Parks (MELP)—obtained an agreement with BC Hydro to increase base flows in the Alouette River to 100 cubic feet

per second (cfs) from the previous base flow of 20 cfs. This resulted in a threefold

increase in available fish habitat. In addition, the Society successfully diverted

flows to reduce harmful sedimentation and is undertaking riparian replanting, the

development of an interpretative centre and the creation of new off-channel rearing habitat. It has pressured City Hall to improve protection of the urban sections of

the watershed, is involved in making and installing roadside habitat-protection

signs, and has distributed information to riverside residents to help resolve issues

ranging from flood control to septic-tank management.

The Society is an excellent example of the power of organized community efforts in

habitat protection and rehabilitation. (Living Blueprint, p. 11).
3.2(7) Issues Regarding the Future Effectiveness of the WUP Process

145. The Stakeholders offered their views as to whether the WUP process will lead to compliance with the Fisheries Act. The province,

Canada, and BC Hydro believe that compliance with an approved

WUP will constitute compliance with the Fisheries Act:

Facility operations that are in accordance with the terms and conditions of an approved WUP will be in compliance with . . . the Fisheries

Act. (WUP Management Committee’s March 1999 Submission, p. 12).

Operations that are in accordance with the terms and conditions of a

water use plan approved by DFO, and if applicable a Fisheries Act

authorization (and accompanyingCanadian Environmental Assessment

Act review), will be in compliance with the Fisheries Act. (WUP Management Committee’s March 1999 Submission, p. 13).

146. Canada indicates that it has made clear that its participation in the

WUP process is predicated on the position that “we expect to

achieve as a minimum, a baseline condition which is in full compliance with Fisheries Act requirements at each facility.” (Canada’s

March 1999 Submission, p. 29).

147. The Submitters express the view that “the WUP Process does not

effectively enforce section 35 of the Fisheries Act.” (Submitters’ January 1999 Speaking Points, p. 4; unless otherwise indicated, all

page references in this paragraph are to this document). In addition to the issues listed in paragraph 140 above, they raise the following questions and make the following assertions:

• “The delays in the WUP Process bring into question whether

there is any consensus for the Process and whether the Process

will actually begin. When the Process was announced in 1996,

the intention was to review all 34 BC Hydro projects within five

years. To date, the Guidelines for the Process have not even been

finalized.” (p. 4). The Submitters made this statement in January

1999; the Guidelines were finalized the following month, in February 1999.

• “To date, the WUP Process has not produced any results which

would allow one to conclude that it will result in the effective

enforcement of the Fisheries Act.” (p. 4).

BC HYDRO FINAL FACTUAL RECORD 103
148. The Expert Group developed a list of some of the issues worthy of

attention in monitoring the effectiveness of the WUP program:

In monitoring the effectiveness of the WUP program, it will be important to review the following:

• The timetable for actual development and implementation of

WUPs;

• The nature of the changes made to the water licenses to

reduce/eliminate harm to fish habitat;

• The extent of compliance with any such changes to the water

licenses;

• The nature and effectiveness of follow-up to instances of

noncompliance with such changes;

• The inclusion of overall system operations as an effective means to

achieve net gains for fish and fish habitat;

• The development and use of credible tools for measuring and

assessing net gain/losses of fish habitat for individual facilities

and for the BC Hydro system overall;

• The extent to which WUP leads to reductions in and/or the elimination of harm to fish habitat and/or issuance of Section 35(2)

authorizations, and the extent to which HADDs continue to

occur/exist without issuance of Section 35(2) authorizations; [and]

• To the extent that one or more WUPs do not lead to issuance of Section 35(2) authorizations, the nature and effectiveness of DFO follow-up to promote compliance with Fisheries Act Section 35(1) and

reductions in/elimination of harm to fish habitat. (Appendix 8,

para. 94). 18

The Expert Group states:

In sum, the WUP process holds promise as an enforcement strategy.

Because the process is at an early stage, little information exists

concerning the extent to which the WUP process will prove to be an

effective enforcement strategy. Assessments of its effectiveness must

104 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

18. One of the potential issues here is whether issuance of a license that includes terms

that a series of stakeholders other than Canada have endorsed, and that requires

operational and other changes from BC Hydro, could affect Canada’s willingness

to pursue enforcement actions on the basis that there are violations of Section 35(1)

for harm to fish habitat following issuance of the license. A related issue is whether

Canada’s prospects for success in such a case will be affected by the WUP process.
await implementation of the process over the next several years.

Some of the more significant questions relevant to implementation of

this strategy are listed above. Even if negotiations lead to a WUP that

is acceptable to DFO, this does not mean that all parties will respect

the plan, or that violations of s. 35 will not still occur. DFO will still

need to employ its full range of enforcement tools to ensure adequate

protection and conservation of fish habitat. (Appendix 8, para. 95).

The Expert Group indicates that:

WUP is a move in the right direction towards achieving greater protection of fish and fish habitat from the harmful impacts of hydroelectric operations. It is a much more comprehensive approach to

gathering data, identifying harmful impacts and developing action

plans to protect fish and fish habitat at each facility than the ad hoc

approaches currently being used. (Appendix 8, para. 90).

3.3 Prosecutions and Related Enforcement Activities

149. This Section on prosecutions and related enforcement activities

contains three subsections. It first provides basic background

information. Next it provides information relating to the “policy

context” for prosecutions and related enforcement activities.

Third, it provides information relating to the nature and level of

these activities and their effects.

3.3(1) Background on Prosecutions and Related Enforcement

Activities

150. The Fisheries Act authorizes the government to prosecute parties

that violate s. 35(1) of the Fisheries Act and it provides for sanctions

against those found guilty of violating s. 35(1). Section 40 of the

Fisheries Act provides as follows:

40. Offence and punishment. (1) Every person who contravenes

subsection 35(1) is guilty of

(a) an offence punishable on summary conviction and liable, for a

first offence, to a fine not exceeding three hundred thousand dollars

and, for any subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding

six months, or to both; or

BC HYDRO FINAL FACTUAL RECORD 105
(b) an indictable offence and liable, for a first offence, to a fine not

exceeding one million dollars and, for any subsequent offence, to a

fine not exceeding one million dollars or to imprisonment for a term

not exceeding three years, or to both. (S.C. 1991, c. 1, s. 10(1)).

Other sections of the Fisheries Act provide for other types of orders

for violations of s. 35(1). For example, s. 79.2 lists a number of “prohibitions, directions or requirements” the court may impose after

conviction of an offence:

79.2. Orders of the Court. Where a person is convicted of an offence

under this Act, in addition to any punishment imposed, the court

may, having regard to the nature of the offence and the circumstances

surrounding its commission, make an order containing any one or

more of the following prohibitions, directions or requirements:

(a) prohibiting the person from doing any act or engaging in any

activity that may, in the opinion of the court, result in the continuation

or repetition of the offence;

(b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat

that resulted or may result from the commission of the offence;

(c) directing the person to publish, in any manner the court considers

appropriate, the facts relating to the commission of the offence;

(d) directing the person to pay the Minister an amount of money as

compensation, in whole or in part, for the cost of any remedial or

preventive action taken by or caused to be taken on behalf of the Minister as a result of the commission of the offence;

(e) directing the person to perform community service in accordance

with any reasonable conditions that may be specified in the order;

(f) directing the person to pay Her Majesty an amount of money the

court considers appropriate for the purpose of promoting the proper

management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat;

(g) directing the person to post a bond or pay into court an amount of

money the court considers appropriate for the purpose of ensuring

compliance with any prohibition, direction or requirement mentioned in this section; habitat;

106 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
(h) directing the person to submit to the Minister, on application by

the Minister within three years after the date of the conviction, any

information respecting the activities of the person that the court considers appropriate in the circumstances; and

(i) requiring the person to comply with any other conditions that the

court considers appropriate for securing the person’s good conduct

and for preventing the person from repeating the offence or committing other offences under this Act. (S.C. 1991, c. 1, s. 24)

151. As noted above, a central assertion of the Submitters is that Canada

rarely prosecutes BC Hydro for alleged violations of Fisheries Act s.

35(1). The Submitters assert that the paucity of such prosecutions

constitutes a failure to effectively enforce this section of Canadian

environmental law against BC Hydro. In their initial Submission,

for example, the Submitters state that DFO has only laid two

charges under s. 35(1) against BC Hydro since 1990. The Submitters

allege that “this enforcement record reveals a consistent failure by

the Federal Government to effectively enforce s. 35(1) against [BC]

Hydro. . . .” (Submitters’ April 1997 Submission, p. 10).

152. In its Response, Canada states that BC Hydro was “charged twice

with a total of 5 counts” involving the alleged Bridge River violations and the Cheakamus court challenge. (Canada’s July 1997

Response, Table 1, p. 17). Canada also provides a table of fourteen

administrative actions directed at BC Hydro since 1990. (Canada’s

July 1997 Response, Table 1, p. 16-17; See para. 27 above).

153. In a document entitled “Reply Of The Submitting Parties to The

Canadian Response,” the Submitters provide the following comment regarding Canada’s table of administrative actions:

Of the 14 actions described, eight are authorizations to harmfully

alter, disrupt or destroy fish or fish habitat, three are merely letters,

two order specific flows and one requests flows. These 14 items, only

three of which directly benefit fish habitat, apply to only four of the 33

projects described in the Submission. Canada presents no evidence of

any equivalent actions undertaken with respect to the remaining 29

projects. (Submitters’ September 1997 Submission, p. 5, emphasis in

original).

154. Canada and the province were asked in questions dated 3 February 1999 and 21 April 1999 to provide information relating to govBC HYDRO FINAL FACTUAL RECORD 107
ernment enforcement policies. They also were asked to provide

information on actual enforcement activities. Section III.B.3.3(2)

below provides information on the governments’ enforcement

policies. Section III.B.3.3(3) below provides information on the

governments’ enforcement activities.

3.3(2) Information on Government Enforcement Policies

155. The 3 February 1999 Questions sought information concerning the

extent to which Canada has established a policy context to guide its

use of prosecutions as an enforcement tool:

Canada has identified a wide range of government responses. We are

interested in obtaining information concerning three types of government policies relating to these responses:

a) policies that explain Canada’s overall plan for enforcement and

compliance concerning Fisheries Act s. 35(1);

b) policies that discuss the criteria Canada uses in deciding which

government response to use in dealing with a particular violation of s. 35(1); and

c) policies that explain the purpose of each government response

and how each is supposed to work.

With respect to prosecutions, for example, we are interested in the criteria Canada uses in deciding whether to investigate a possible violation of Fisheries Act s. 35(1), and/or in deciding whether to bring a

prosecution for such a violation. We are interested, therefore, in policies, procedures, protocols and other documents relating to, among

other things:

(i) charge screening;

(ii) recommending charges; and

(iii) instituting investigations. (3 February 1999 Questions,

Question #1).

156. In the fall of 1999, Canada provided a July 1999 draft Policy entitled

Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy (“1999 Draft Compliance and Enforcement Policy”) (unless otherwise indicated, all

page references in this subsection 3.3(2) are to this draft Policy).

108 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
This draft Policy is directly responsive to the 3 February 1999 question described above. The Secretariat assumes the draft Policy was

not provided as part of the March 1999 Canadian submission

because the draft (which is dated July 1999) had not been completed by that date. Various Canadian documents issued well

before July 1999 had referred to enforcement or compliance policies. (See, for example, the Habitat Conservation and Protection

Guidelines, released in 1994 (p. 26) and revised in 1998 (p. 16), stating that “[i]f the proponent does not comply with the terms and

conditions as stated by DFO and fish or fish habitat are harmed,

enforcement procedures will be initiated pursuant to the Act in

accordance with departmental compliance policies.”) It is unclear

what policies these documents refer to.

157. The July 1999 draft Fisheries Act Habitat Protection and Pollution

Prevention Provisions Compliance and Enforcement Policy

describes its purpose and scope as follows:

This Compliance and Enforcement Policy lays out general principles

for application of the habitat protection and pollution prevention provisions of the [Fisheries] Act and explains the role of regulatory officials in promoting, monitoring and enforcing the legislation. It is a

national policy which applies to all those who exercise regulatory

authority, from ministers to enforcement personnel. (p. 1).

158. The draft Policy contains eight primary sections:

• What are enforcement and compliance?

• Guiding principles,

• Jurisdiction and responsibilities,

• Measures to promote compliance,

• Inspection and investigation,

• Responses to violation,

• Penalties and Court Orders upon conviction, and

• Civil suit by the Crown to recover costs. (p. ii)

The next several paragraphs summarize the information contained in these sections.

BC HYDRO FINAL FACTUAL RECORD 109
159. Under the heading “What are Compliance and Enforcement?” the

draft Policy identifies a series of approaches for promoting compliance and pursuing enforcement. For promoting compliance, the

Policy lists:

i) communication and publication of information;

ii) public education;

iii) consultation with parties affected by these provisions of the Fisheries Act; and

iv) technical assistance. (p. 3).

For enforcement, the draft Policy lists:

i) inspections to monitor or verify compliance;

ii) investigations of violations;

iii) issuance of warnings, directions by inspectors, authorizations,

and Ministerial orders, without resorting to court action; and

iv) court actions, such as injunctions, prosecution, court orders upon

conviction, and civil suits for recovery of costs. (p. 3).

160. The draft Policy’s section on “Guiding Principles” lists six such

principles:

• Compliance with the habitat protection... provisions . . . is mandatory.

• Voluntary compliance will be encouraged through communication and consultation with parties affected by the habitat protection . . . provisions of the Fisheries Act.

• Enforcement personnel will administer the provisions and regulations in a manner that is fair, predictable, and consistent.

Rules, sanctions and processes securely founded in law will

be used.

• Enforcement personnel will administer the provisions and

accompanying regulations with an emphasis on preventing

harm to fish and to fish habitat caused by physical alteration or

pollution of waters frequented by fish.

• Enforcement personnel will respond to suspected violations of

the Fisheries Act habitat protection... provisions, giving priority

to those that have resulted in the greatest harm, or pose the

110 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
greatest risk of harm to fish, fish habitat, or to human use of

fish and will take action consistent with this Compliance and

Enforcement Policy.

• The public will be encouraged to report suspected violations

of the Habitat Protection . . . Provisions of the Fisheries Act, and

all such reports will be responded to by Enforcement Officials.

(p. 4).

161. The draft Policy discusses the roles and authorities of different

government actors in enforcing the Fisheries Actin the “Jurisdiction

and Responsibilities” section. It indicates that the Attorney General of Canada is responsible for all litigation relating to the Fisheries Act:

While Fishery Officers, Fishery Guardians, and Inspectors may lay

charges for offenses under the Act, the ultimate decision on whether

to proceed with prosecution of the charges rests with the Attorney

General of Canada, or where the charge is laid by the province, with

the respective provincial Attorney General. With respect to an application for an injunction or a civil suit for recovery of costs in the various circumstances in which such recovery is allowed under the Act,

enforcement personnel will recommend these civil actions to officials

of the Attorney General of Canada. The legal counsel representing the

Attorney General of Canada have the ultimate decision on proceeding with the injunction or civil suit for cost recovery. (p. 9).

The draft Policy states that courts “make the final decision regarding disposition of prosecutions, injunction applications and civil

suits commenced under the habitat protection... provisions,

including what penalty to impose or what remedy to order.” (p. 9).

The draft Policy indicates that DFO “has primary responsibility for

administration of the Fisheries Act, which includes responsibility

for administration and enforcement of the provisions dealing with

physical alteration of fish habitat.” (p. 5). It notes that provincial

officials may be designated to help enforce the Act: “In order to

implement the habitat protection... provisions of the Fisheries Act,

provincial and territorial governments cooperate to promote compliance and enforce these provisions. This cooperation includes,

in some cases, the designation of enforcement officials of these

governments as Fishery Officers or inspectors under the Act.”

(p. 5). The draft Policy indicates that “[e]nforcement personnel are

individuals designated as Fishery Officers or Fishery Guardians

BC HYDRO FINAL FACTUAL RECORD 111
(under Section 5) or Inspectors under Section 38 of the Fisheries

Act.” (p. 6). The draft Policy lists the powers of Fishery Officers and

Fishery Guardians. These powers include the authority to conduct

inspections and to make arrests, among others. (p. 7).

162. The draft Policy lists and discusses a series of “Measures to Promote Compliance.” Among other things, the draft Policy discusses

issuance of “authorizations.” It provides as follows:

The habitat protection... provisions of the Fisheries Act provide

authority to issue “authorizations” for activities that would otherwise contravene the requirements of the legislation.... Under subsection 35(2) of the Act, authorizations may be issued to allow for

the harmful alteration, disruption or destruction of fish habitat.

(pp. 10-11).

The draft Policy provides that “[a]nyone who harmfully alters,

disrupts or destroys fish habitat without an authorization is in

contravention of the Fisheries Act.” (p. 11).

163. The draft Policy also discusses “compliance monitoring” as a

measure to promote compliance. The draft Policy provides that

“[c]ompliance monitoring is conducted to verify that activities

governed by the Fisheries Act are carried out in accordance with its

provisions, regulations, ministerial orders and permit [the word

permit has a line through it] authorization requirements.” It continues: “Inspectors will also verify compliance with injunctions

and court orders issued under the Act. Compliance monitoring

may also measure potentially harmful impacts on the environment

associated with suspected violations of the Act.” (pp. 14-15). The

draft Policy lists several means to accomplish compliance monitoring, including:

• “inspections by inspectors;”

• “mandatory reporting of information by regulatees;” and

• “monitoring of regulatory requirements under the Act or regulations.” (p. 15).

164. The draft Policy’s section on “Inspection and Investigation” indicates that inspections and investigations are the two primary types

of enforcement activity conducted by enforcement personnel. It

112 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
indicates that the purpose of an inspection is “to verify compliance.” It further notes that the inspection program will be prioritized based on compliance history and the risk to fish resources. It

states that inspection schedules are established to verify compliance with requirements contained in warnings, directions, and

orders by the DFO Minister, among other sources.

The draft Policy reports that the purpose of an investigation is “to

gather evidence of a suspected violation of the habitat protection . . . provisions of the Fisheries Act.” (p. 16). It indicates that “[a]

Fishery Officer, Fishery Guardian or Inspector will conduct an

investigation when there are reasonable grounds to believe that an

offence is being or has been committed.” (p. 16).

165. The draft Policy provides relatively extensive coverage of the subject “Responses to Violations.” (pp. 17-24). This section of the draft

Policy contains information on five topics. First, it covers the question of when a violation should trigger an enforcement response:

If enforcement personnel are able to substantiate that a violation of

the habitat protection... provisions of the Act has occurred and there

is sufficient evidence to proceed, they will decide on an appropriate

enforcement action. . . . (p. 17).

166. Next it covers the factors to consider in assessing the nature of a

violation:

Factors considered in assessing the nature of a violation will include:

• the seriousness of the damage or potential damage to fish habitat,

the fishery resource, and human health;

• the intent of the alleged violator;

• whether it is a repeated occurrence; and

• whether there were attempts to conceal information or otherwise

circumvent the objectives and requirements of the habitat protection . . . provisions. (p. 17).

167. Third, the section addresses the purpose of taking enforcement

measures:

The desired result [of an enforcement measure] is compliance with

the Act within the shortest possible time and with no further occurBC HYDRO FINAL FACTUAL RECORD 113
rence of violations in order to protect fish and fish habitat. Factors to

be considered include:

• the violator’s history of compliance with the habitat protection...

provisions;

• the violator’s willingness to cooperate with enforcement personnel;

• evidence and extent of corrective action already taken; and

• the existence of enforcement actions by other federal or provincial

authorities. (pp. 17-18).

168. The fourth point the section makes is that Canada will strive for

consistency in responding to violations:

Enforcement personnel aim to achieve consistency in their responses

to violations. Accordingly, they will consider how similar situations

in Canada are being or have been handled when deciding what

enforcement action to take. (p. 18).

169. The section on “Responses to Violations” concludes with a discussion of the five enforcement responses to violations, and the circumstances in which each should be used. These five are: 1)

warnings; 2) directions by Inspectors; 3) orders by the Minister;

4) injunctions; and 5) prosecutions. The draft Policy indicates that

the five are not mutually exclusive; more than one may be used

for particular situations.

Warnings are intended for relatively minor violations where the

alleged violator has made a reasonable effort to remedy or mitigate

the impact. A warning must be confirmed in writing and the written confirmation must include a statement that further enforcement action may follow if the warning is not heeded, as well as a

statement that warnings will be considered in the event of future

violations. The draft Policy states that a prosecution may be initiated where a warning has been given but noncompliance continues. (p. 19).

Directions by Inspectors appear to be reserved for situations

involving abnormal deposits of deleterious substances, not for

violations of Fisheries Act s. 35(1) involving harm to fish habitat.

As a result, they are not summarized here.

114 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The draft Policy indicates that s. 37(1) of the Fisheries Act empowers

the Minister or designate to request information concerning any

work or undertaking to enable the Minister to determine whether

such work or undertaking constitutes an offence under the Act or is

likely to do so. It indicates that “[f]ailure to respond to the request

within a reasonable time will likely lead to prosecution.” (p. 20).

The draft Policy further indicates that the Minister may issue

orders requiring modifications of the work, restricting the operation of the work, or closing the work or undertaking for a stipulated period of time. The Minister must obtain approval of the

Governor in Council for issuance of closure orders. The Minister

must obtain the Governor in Council’s approval for issuance of the

other orders as well, unless authorized to issue such by regulation.

(p. 20).

The draft Policy explains that the purpose of these orders is “to prevent the occurrence or repetition of a violation.” It further explains

that use of these orders is appropriate where a violation has

occurred or is likely to occur and the alleged violator is not likely to

heed an informal request to take necessary action without a formal

order. The draft Policy indicates that “[f]ailure to comply with an

order will result in prosecution.” (p. 21). It also indicates that

orders may be used in conjunction with prosecutions if the offence

meets the criteria for prosecution (discussed below).

Injunctions are court orders to stop activity that violates the habitat

protection provisions. The draft Policy indicates that enforcement

personnel will recommend to the Attorney General initiation of an

injunctive action “where continuation of the activity that is alleged

to be a violation of the Fisheries Act constitutes a significant and

immediate threat to fish or fish habitat” and where an Order will

not address the problem in a timely way or is not being complied

with. (p. 21). The draft Policy indicates that the Crown may, among

other actions, initiate a prosecution in addition to seeking an

injunction. (p. 21).

The final type of response action discussed in the draft Policy is

prosecutions. The draft Policy makes prosecutions the preferred

course of action in some situations and the required course of

action in others.

Prosecution is the preferred course of action where evidence establishes that:

BC HYDRO FINAL FACTUAL RECORD 115
• the violation resulted in risk or harm to fish or fish habitat;

• the violation resulted in harmful alteration, disruption or destruction of productive fish habitats (not authorized by the Minister of

Fisheries and Oceans);

• the alleged violator had previously received a warning for the

activity and did not take all reasonable measures to stop or avoid

the violation;

• the alleged violator had previously been convicted of a similar

offence.

Prosecution will always be pursued where evidence establishes that:

• there is evidence of a deliberate violation;

• the alleged violator knowingly provided false or misleading information to an enforcement officer;

• the alleged violator obstructed an enforcement officer in the carrying out of his or her duties or interfered with anything seized

under the Act;

• the alleged violator concealed or attempted to conceal or destroy

information or evidence after the offence occurred; or

• the alleged violator failed to take all reasonable measures to comply with a direction or an Order issued pursuant to the Act. (p. 23).

The draft Policy indicates that most offences under the habitat protection provisions are prosecuted by way of summary conviction.

For others, the Crown prosecutor may proceed by way of indictment. In the latter cases, the judge may upon conviction “impose

more serious penalties than those allowed under the summary

conviction proceedings.” (p. 23).

170. Because there have been no convictions of BC Hydro as far as the

Secretariat is aware, this Factual Record does not cover the section

on penalties and court orders upon conviction. (pp. 25, 26). Similarly, the Factual Record does not cover the section on civil suit by

the Crown to recover costs because it does not apply to the alleged

violations involved in this submission.

As noted at the outset and repeated throughout the summary provided above, the July 1999 Policy is only a draft. As of February

2000, information has not been provided as to whether the docu116 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ment has been finalized or as to whether DFO is following it while

it is under development. In its 8 September 1999 Response to

Submission SEM-98-004 (“Canada’s September 1999 Response

(SEM-98-004)”), Canada indicates that the draft Policy is “modelled after Canada’s ’Enforcement and Compliance Policy’ for the

Canadian Environmental Protection Act.” The Response further indicates that the draft Policy, still under development, was “expected

to be finalized and published in 1999.” It also notes that while the

draft policy is still under development, “within Environment Canada working drafts are currently followed at the regional level to

guide enforcement of the pollution prevention provision of the

Fisheries Act.” (Canada’s September 1999 Response (SEM-98-004),

p. 13).

The Secretariat provides an extensive summary of the draft despite

its status as such, and despite these uncertainties, because the draft

Policy is the only document made available that provides overall

policy direction for use of different enforcement tools. As such, the

draft Policy appears to contain important information relating to

the government’s current thinking (even if such thinking has not

yet become official, final government policy) about an overall

strategy for employing different enforcement approaches.

171. The draft Policy provides for an evaluation within five years of its

implementation:

Within five years of the implementation of the Compliance and

Enforcement Policy, the Department of Fisheries and Oceans and the

Department of the Environment will review the manner in which the

policy has been applied by their officials, to determine whether

administration and enforcement activities have been consistent with

the policy and whether changes in these activities, or in the policy are

required. (p. 2).

It is not clear when the five-year period begins to run. The draft

Policy does not specify whether it begins in July 1999 (the date of

the draft), on the date when the policy is finalized (assuming this

occurs), or at some other time.

At this point, little information has been made available concerning the application of this draft Policy. Thus, information has not

been provided as to “whether administration and enforcement

activities have been consistent with the policy,” or as to “whether

changes in these activities, or in the policy are required.”

BC HYDRO FINAL FACTUAL RECORD 117
3.3(3) Information on Government Enforcement Resources,

Activities, and Results

172. In addition to seeking information concerning the existence and

content of any enforcement policies, information was sought concerning the nature of government enforcement activities. In particular, information was sought concerning the level of government

resources allocated to enforcement activities, the level of government enforcement activities, and the results or effectiveness of

those activities. The 21 April 1999 Questions requested additional

information regarding the level of resources devoted to enforcement:

For each year, 1994-1998, inclusive, how much human (FTEs) and

financial resources (budget allocation) have DFO and provincial

agencies dedicated to enforcement of Section 35(1) of the Fisheries Act

in British Columbia? To the extent the information is available, please

provide a breakdown of the allocation of these resources by type of

activity—e.g., monitoring, investigation, and enforcement. (21 April

1999 Questions, Question #3)

The 21 April 1999 Questions also requested additional information

regarding the level and outcomes of enforcement-related activity

(number of inspections, etc.):

For the same time period, please provide any compliance and

enforcement data for British Columbia not yet submitted relating to

Fisheries Act Section 35(1), such as data concerning the level of enforcement activity (e.g., numbers of investigations and inspections), and

the outcomes of such activity. With respect to outcomes, for example,

the DFO 1996-1997 Annual Report to Parliament provides information on convictions for fiscal years 1994/95, 1995/96 and 1996/97.

Please provide similar information for fiscal years 1997/98 and

1998/99 if it is available. Please also provide information concerning any sanctions imposed for violations of Section 35(1) in British

Columbia (e.g., the number and monetary value of fines imposed for

such violations). (21 April 1999 Questions, Question #4).

173. Information from the province was not included in the 11 June 1999

Response to the 21 April questions. In a March 1999 submittal, the

province provides the following information regarding personnel:

The Ministry of Attorney General has recognized that enforcement of

environmental law is complex and technical, requiring specialised

expertise, and in 1989 responded by establishing a group of prosecu118 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tors who specialise in environmental protection. This group of eight

full time Crown counsel . . . is mandated to give priority to the prosecution of environmental cases.... (MELP’s March 1999 Presentation,

pp. 8-9).

The province also reports that the Conservation Officers Service

(COS) of MELP has designated authority under the federal Fisheries Act. (MELP’s March 1999 Presentation, p. 7).

Concerning the level of enforcement activity, the province states

that the Fisheries Act “is well-utilized, with over 600 actions and 93

prosecutions in a four-year period.” (MELP’s March 1999 Presentation, p. 7). The province does not specify the four-year period referenced or provide information on the nature, or outcomes, of its

600 actions or 93 prosecutions. Information concerning convictions

obtained by the province is contained in Habitat Enforcement Bulletins, posted on DFO’s homepage (www-heb.pac.dfo-mpo.gc.ca).

The province provides information on a variety of other, nonprosecution-oriented enforcement initiatives. These include voluntary compliance and education activities and compensation

agreements (listing the Peace/Williston Fish and Wildlife Compensation Agreement, adopted in 1989 and providing in perpetuity $800,000 annually ($400,000 for fish); the Columbia Basin

Fish and Wildlife Compensation Agreement, adopted in 1993 and

providing $3.2 million ($1.5 to $1.7 million for fish); and noting

that a similar BC Hydro fund is being established for the Bridge

River/Coastal Fish and Wildlife Compensation Program).

(MELP’s March 1999 Presentation, p. 4; See BC Hydro’s February

1999 Submission, pp. 16-18, for a discussion of various administrative and collaborative means through which BC Hydro’s impact on

fish habitat is limited or improved). The province also provides

copies of several interim orders it has issued to BC Hydro since

the submission was filed, including Herber River Diversion,

12/22/98; Stave River: Ruskin Dam, 12/22/98; Salmon River

Diversion, 12/2/98; Coquitlam River, 12/16/98; Puntledge River

Generating Facility, 11/10/97; Alouette Dam and Generating Station, 10/3/97; and Campbell River Hydroelectric Development,

10/3/97.

174. BC Hydro provided information on its investments in fish habitat-related issues. It indicates that in 1986 it had two fisheries biologists and that it now has twenty fisheries staff within BC Hydro,

BC HYDRO FINAL FACTUAL RECORD 119
plus six fisheries staff working with its compensation programs on

the Peace and Columbia River systems. It states that WUP will

require five more biologists, and that “[t]his level of staffing, with

its overhead and expenses, costs about $5 million and is increasing

steadily.” It further indicates that “[a]dditional expenditures for

fisheries related matters (habitat improvements, compensation

programs and Water Use Planning) will cost about $10 million in

1999.” (BC Hydro’s February 1999 Submission, p. 16).

175. With respect to information from Canada on its enforcement budget, the Submitters indicate that they have been unable “to obtain

reliable information relating to DFO’s budget for the monitoring,

investigation and enforcement of s. 35(1).” They continue: “However it is our understanding that DFO’s budget in that regard has

been substantially reduced in recent years, and that there are simply too few qualified personnel available to effectively monitor

and enforce the habitat protection provisions of the Fisheries Act.”

(Submitters’ January 1999 Speaking Points, p. 6).

176. Canada provides some information in response to Question #3, as

summarized in the rest of this paragraph and in the paragraph

immediately below. With respect to financial resources dedicated

to enforcement of s. 35(1) in British Columbia, Canada indicates

that it does not keep detailed data on the financial resources dedicated to enforcement activities. It adds that there is “no specific

budget allocation for habitat enforcement activities separate from

general operating budgets.” (11 June 1999 Response to 21 April

1999 Questions, p. 6). Thus, the Factual Record does not contain a

total amount of money allocated to enforcement. Similarly, it does

not provide a breakdown of the allocation of financial resources

among various types of enforcement activities, such as monitoring,

investigation, and enforcement because such a breakdown was not

provided.

177. In section 1.4.2 of Canada’s March 1999 Submission, Canada cites

examples of the time and effort expended concerning the alleged

Bridge River violations and the Cheakamus court challenge and

provides some quantification of costs to support its contention that

“litigation is costly and expensive.” (Canada’s March 1999 Submission, pp. 9-13).

120 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
BC Hydro provides information concerning the Bridge River prosecution. It asserts that the trial “was probably the longest Fisheries

Act case in Canadian history.” (BC Hydro’s February 1999 Submission, p. 11). The preliminary hearing took 2 1⁄2 weeks and the trial

took nearly 10 weeks of court time. “The cost to BC Hydro of

defending the charges, not including the cost of studies,

remediation and operational steps in mitigation before, during

and after the incident itself, was probably between $1 and 2 million

(Cdn.).” (BC Hydro’s February 1999 Submission, p. 11).

178. With respect to human resources dedicated to enforcement of s.

35(1) in British Columbia, Canada indicates that it does not keep

detailed data on the human resources (FTEs) dedicated for this

purpose. (11 June 1999 Response to 21 April 1999 Questions, p. 6).

Thus, there is no breakdown available in terms of the allocation of

human resources among various types of enforcement activities,

such as monitoring, investigation, and enforcement.

Canada notes that enforcement activities are carried out by Fishery

Officers, habitat biologists, engineers, technicians, and research

scientists. It notes that Fishery Officers are “multi-tasked, regulating commercial, sport, and aboriginal fisheries as well as conducting habitat enforcement duties.” It indicates that there are roughly

150 full and 30 seasonal Fishery Officer positions, and estimates

that 10 percent of a Fishery Officer’s time is spent on habitat

enforcement. It reports that from 1994/1995 to 1998/1999 the number of Fishery Officers in British Columbia has remained constant.

(11 June 1999 Response to 21 April 1999 Questions, p. 6).

179. Canada notes that Habitat Management staff are also “multitasked.” It reports that there are approximately 55 Habitat Management staff with enforcement powers and duties, and that in

1994, it was estimated that about seven percent of Habitat Management staff time in British Columbia was devoted to habitat enforcement duties. It is not clear whether this estimate holds for later

years. Canada advises that from 1994/1995 to 1998/1999 the number of Habitat Management staff in British Columbia has remained

constant. (11 June 1999 Response to 21 April 1999 Questions, p. 6).

180. Canada provides the following statements concerning its allocation of resources to protecting fish habitat within the context of

Article 45 of the NAAEC:

BC HYDRO FINAL FACTUAL RECORD 121
• “In a world of finite human resources, decisions must be made

regarding their allocation. These decisions have been made on a

bona fide basis as per Article 45 of NAAEC. . . . The enforcement

activities are directly linked to resourcing decisions and DFO

believes that its resourcing decisions make sense and reflect public

concerns.” (Canada’s March 1999 Submission, p. 20, emphasis in

original).

• “DFO staff are required to protect the fisheries resource and fish

habitat from a wide variety of works or undertakings. Examples

include: urban development; logging; farming; foreshore development; linear developments; recreational development; gravel

extraction; hard rock and placer mining, etc. . . . DFO expends considerable effort enforcing the habitat provisions of the Fisheries

Act.” (Canada’s March 1999 Submission, pp. 19-20).

• DFO has a broad mandate and its limited number of staff have

multiple duties under this broad mandate. (Canada’s March 1999

Submission, pp. 3, 4).

The Submitters offer the following statement concerning this issue:

Canada relies on Article 45 of NAAEC to explain the lack of a greater

number of prosecutions in the face of consistent and repeated damage

to fish habitat at hydroelectric facilities. Under Article 45, a [P]arty has

not failed to effectively enforce environmental law where its inaction

results from a bona fidedecision to allocate resources to enforcement of

other environmental matters determined to have higher priorities.

The Submitting Parties are skeptical of Canada’s claim and note that

Canada has submitted no evidence indicat[ing] that the failure to

enforce section 35 results from a bona fide decision to fund other environmental priorities, rather than resulting from the under-funding

of fisheries programs or government decisions to prioritize other,

non-environmental matters. If the government of Canada wishes to

rely on Article 45, it should provide further information. (Submitters’

24 March 1999 Submission, pp. 4-5).

181. Canada provided some information in its 11 June 1999 Response to

21 April 1999 Questions concerning the level of enforcement activity requested in Question #4. In particular, Canada provided tables

of convictions, and resulting sanctions, reported in British Columbia under s. 35(1) of the Fisheries Act. These tables are reproduced

below.

122 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Table 1: Convictions and Sanctions Reported Under Section

35(1) of the Fisheries Act in British Columbia

Year S. 35(1) Convictions

1994/95 37

1995/96 30

1996/97 32

1997/98 24

1998/99 21

Year Total of fines Portion directed to Orders to

restore habitat1 restore habitat2

1994/95 $ 117, 295 $ 82, 189 7

1995/96 $ 111, 051 $ 44, 000 2

1996/97 $ 55, 950 $ 26, 500 3

1997/98 $ 199, 301 $ 141, 981 2

1998/99 $ 178, 724 $ 137, 799 6

1 Portion of the total of fines that was directed to restoration or enhancement of

fish habitat.

2 Court orders to restore affected fish habitat at the expense of the offenderin addition to any fine.

These convictions include cases for which the province served as

lead agency. Canada reported that it “does not keep detailed information on the number of inspections and investigations conducted

throughout British Columbia” because it would not be practical to

do so. (11 June 1999 Response to 21 April 1999 Questions, p. 7).

182. In section 1.4.3(c) of its March 1999 Submission, Canada notes that

it is continuing to train its staff with formal witness training programs in recognition of the increasing complexity of environmental investigations and prosecutions. According to an October 1998

Habitat Enforcement Bulletin, “[r]ecent training and empowerment initiatives in DFO Pacific Region have raised the number of

properly trained and designated [Habitat Enhancement Branch]

staff from less than a dozen to 54.” (DFO, Habitat Enforcement

Bulletin, October 1998, p. 3).

BC HYDRO FINAL FACTUAL RECORD 123
DFO’s Annual Report to Parliament for FY 1997/98 makes the

following statements concerning training:

In the Pacific Region in 1997/98, there was a renewed effort to

improve habitat enforcement capabilities through training workshops and courses on Regional Habitat Enforcement, Contaminated

Fish Habitat, and Expert Witness Training. The courses included participants from provincial enforcement agencies . . . and other federal

departments. (Annual Report to Parliament on the Department of

Fisheries and Oceans Habitat Management for the period of April 1,

1997 to March 31, 1998, Chapter 6).

The DFO Annual Report further indicates that the Pacific Region

has initiated a periodic bulletin on habitat enforcement related

issues. The Habitat Enforcement Bulletin serves to:

• Inform enforcement staff... specifically on case law developments, resource material and upcoming training courses, and the

use of enforcement powers and tools; and

• Inform federal and provincial staff, interest groups, and the public

generally of habitat enforcement issues, legal proceedings,

charges, convictions, and statistics. (Annual Report to Parliament

on the Department of Fisheries and Oceans Habitat Management

for the period of April 1, 1997 to March 31, 1998, Chapter 6).

183. Canada states that it will continue to investigate and proceed with

charges under the Fisheries Act where evidence is available. (Canada’s March 1999 Submission, p. 14). Without information of the

sort identified above (see, for example, paras. 169 & 170 above), it

is not possible to provide additional information concerning the

extent to which Canada’s use of prosecutions is consistent with the

approach outlined in the draft enforcement Policy, or with any

other policies that might exist concerning use of this enforcement

strategy.

184. In Section 1.4.3(d) of its March 1999 Submission, Canada states:

“[i]t is worth noting that in the hydro litigation to date, the direct

benefits to the fisheries resource have been nil.” (Canada’s March

1999 Submission, p. 14). It also notes that the litigation actions

“have definitely been, indirectly, effective.... Undoubtedly, these

court actions, along with other issues, have encouraged BC Hydro

to take more notice of the requirements of the Fisheries Act, and the

requirements of the fisheries resources.” (Canada’s March 1999

Submission, p. 14).

124 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
In an October 1998 Habitat Enforcement Bulletin (available on

DFO’s homepage), Canada describes the benefits of the settlement

of the Bridge River litigation:

BC Hydro will spend up to $600,000 for fish habitat in an agreement

with DFO to end two prosecutions against Hydro.... Hydro agreed to

provide 3.0 cubic metres per second of water from the dam into

Bridge River. This restores water and fish access to 4 km of the river

that have been dry for 50 years. Changes to the existing dam structure

to control water release during high runoff will cost Hydro up to

$500,000. Hydro will also pay up to $100,000 for habitat restoration on

the dry section of the river. (DFO, Habitat Enforcement Bulletin,

October 1998, p. 1).

The Expert Group also indicates that the prosecution produced

benefits:

[T]he indirect benefits that resulted from the Bridge River prosecution in the form of the Bridge River settlement had positive implications for fish habitat. Positive results also followed the Cheakamus

litigation. (Appendix 8, para. 68).

185. BC Hydro provides its view that prosecutions “are an important

but inadequate tool for effective enforcement.” (BC Hydro’s February 1999 Submission, p. 1). BC Hydro suggests that prosecutions

under s. 35 have some “fundamental weaknesses as an enforcement tool,” including:

• they are reactive, occurring after the harmful alteration has

occurred;

• they are slow, costly, and can be extremely time-consuming;

• they can interfere with co-operative and collaborative programs;

[and]

• they exclude... other interests. . . . (BC Hydro’s February 1999

Submission, p. 1).

BC Hydro continues that “[t]he effectiveness of prosecution as an

enforcement tool is not in its use, but in the threat of prolonged litigation, and so it does provide some pressure to manage fish habitat

through administrative and collaborative programs.” (BC Hydro’s

February 1999 Submission, p. 1).

BC HYDRO FINAL FACTUAL RECORD 125
The WUP Management Committee states that “prosecutions get

things moving but may not, in the end, result, in effective, longterm solutions.” (WUP Management Committee’s March 1999

Submission, p. 9). The Committee also asserts that use of a prosecution-based approach may reduce information-sharing. The Committee further claims that prosecutions “run[ ] the risk of piecemeal

improvements to fish habitat” because they are “event, site and

circumstance-specific.” (WUP Management Committee’s March

1999 Submission, pp. 29, 30). In its concluding comments, the WUP

Management Committee states that:

The 1990s represented a period of increased frustration and antagonism by all parties. Prosecutions such as the Bridge case and

Cheakamus flow order heightened concerns but also showed that litigation has its problems, including high costs and questionable or, at

least uncertain, returns to the fish resource. (WUP Management Committee’s March 1999 Submission, p. 33).

186. The Expert Group states that, “[i]n the end, there is little information relating to the effectiveness of prosecution as an enforcement

tool given the lack of use of this tool to date and the lack of information provided regarding the tool.” (Appendix 8, para. 68). The July

1999 draft enforcement and compliance Policy contains a strategy

for use of prosecutions, but little information was provided on

actual implementation of this draft strategy.

3.4 Environmental Assessments of New Hydroelectric Projects and

Retrofit Projects

187. This Section briefly supplements the coverage of environmental

assessments in Section II, above.

188. Canada indicates that “[t]he use of s. 35(2) authorizations is a relatively recent phenomenon.” (Canada’s March 1999 Submission, p.

16). The Expert Group indicates that Canada’s use of ss. 32 and

35(2) authorizations an an enforcement tool has been limited in the

context of the significant number of hydroelectric facilities operated by BC Hydro. (Appendix 8, para. 70).

189. Little information has been provided regarding the effectiveness of

s. 35(2) authorizations issued to date. (Appendix 8, para. 71).

126 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
190. It appears that Canada contemplates that assessments of BC

Hydro’s operations will be conducted, and s. 35(2) authorizations

will be issued (at a minimum their issuance will be considered), as

part of the WUP process discussed in Section 3.2 above. Canada

states that “[i]t is likely that authorizations will be issued at many

facilities as WUP’s are implemented throughout BC.” (Canada’s

March 1999 Submission, p. 16). Canada notes that the 1998 HADD

Decision Framework explains “[t]he method for determining

whether and how to issue s. 35(2) authorizations.” (Canada’s

March 1999 Submission, p. 16). Thus, the enforcement strategy of

issuing s. 35(2) authorizations to authorize harm to fish habitat,

and of using environmental assessment under CEAA as part of the

s. 35(2) authorization process, may see greater use in the future

with respect to BC Hydro facilities than it has to date.

3.5 Emergency Response Procedures

191. This Section briefly supplements the coverage of emergency

response procedures in Section II, above.

192. The Expert Group indicates that the minimum flow orders have

likely resulted in some positive benefit to fish habitat. It also indicates that limited information has been provided concerning the

nature and extent of the effectiveness of emergency response

procedures as an enforcement tool:

From the limited information provided to the Expert Group, use of

these procedures has likely had some positive impact in reducing

harm to fish habitat. However, little information concerning the

nature and extent of the effectiveness of this tool in reducing harm to

fish habitat in the situations in which it has been used has been provided. Further, this tool has seen quite limited use thus far. Thus, the

Expert Group is not in a position to provide information concerning

whether Canada has used this enforcement tool effectively. Important information that is lacking relating to the effectiveness of this tool

includes the following: a) how often emergencies arise; and b) the

effectiveness of Canada’s use of its emergency authorities (for example, how effective was Canada’s use of its emergency procedures in

limiting the HADD in particular situations, and in limiting future

emergencies, and to what extent did any decision not to use such

procedures to address various emergencies lead to HADDs that

otherwise might have been avoided). (Appendix 8, para. 76).

BC HYDRO FINAL FACTUAL RECORD 127
3.6 Regional Technical Committees

193. This Section briefly supplements the coverage of “Regional Technical Committees” in Section II, above.

194. The Expert Group states its understanding that the RTCs have had

some success in improving relations between regulators and the

regulated party (BC Hydro).

The Expert Group understands that these Committees have been useful in bringing the facility operators (BC Hydro) and the regulators

(DFO and MELP) together to address fish habitat issues. Some technical committees have representation from local stakeholder groups

while others only have representation from BC Hydro, DFO and

MELP. (Appendix 8, para. 79).

195. The Expert Group also indicates that the RTCs have had some success on the ground in improving fish habitat and/or in reducing

harm to same. The Expert Group notes that information necessary

to understand the extent or adequacy of the effectiveness of these

efforts is limited. It indicates that, among other things, future monitoring of the impacts of actions taken is needed to understand the

effects of these actions on fish habitat. For example, the Expert

Group offers the following information concerning the Campbell

River Advisory Committee:

While it is unclear how much of the Campbell River Management

Strategy has actually been implemented we understand that the flow

regimes have been altered and the interim flow strategy has become

an interim flow order under WUP. (Canada’s March 1999 Submission). The Order issued 3 October 1997 incorporates Sections 5.2.1 to

5.2.4 inclusive of the Recommended Operating Regime as set out in

the Campbell River Interim Flow Management Strategy dated May

1997 and therefore incorporates the recommendations of the committee. Likewise a baseline flow in the canyon has been implemented and

a number of habitat improvements have been undertaken including

restoration activities in the estuary, the creation of side channels and

gravel placement in the river etc.

Canada clearly believes that the Campbell River committee process

was very successful and the Campbell River Advisory Committee

indicates in its report’s executive summary that the flows stipulated

in the management strategy will be more beneficial to fish than the

natural flows. (Campbell River Interim Flow Management Strategy).

128 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The measures recommended by the Campbell River Advisory

Committee are an improvement for fish and fish habitat. However,

whether the changes will be sufficient to achieve the target returns for

chinook and steelhead (the only two species for which targets were

set) is uncertain. Moreover the targets set were at pre-hatchery levels

(pre 1975) as opposed to current escapement levels—a good goal in

theory. But using historic escapement estimates as a target may be

questionable given that the quality of escapement estimates is often

poor. The extent of improvement, and the appropriateness of additional improvements, are not clear at this point. The changes are too

recent and there has been no opportunity for monitoring over time.

The quantitative proof will be in the salmon returns but these will not

be known for at least four years from the implementation date in 1998,

probably much longer. Monitoring of results to evaluate the extent to

which these actions lead to better habitat and fish return, and undertaking further improvements depending on these results, are key

elements of the effectiveness of this approach. (Appendix 8, paras.

81-83).

196. Overall, the Expert Group views the RTC initiatives as a positive

step. It indicates that information concerning the effectiveness of

these initiatives should include monitoring of the results of the

RTCs’ work, including monitoring the changes they direct in operations, the extent to which such changes are adequately funded

and implemented, and the results of such changes in terms of habitat impact:

Overall, initiatives such as the Campbell River Advisory Committee

in which the governments involve numerous interested parties and

develop a comprehensive plan are positive and will be a good model

for the WUP provided it leads to an adequately funded program.

Adequate monitoring of results and, as appropriate, further restorative action, are key elements of such efforts as well. (Appendix 8,

para. 84).

3.7 Water Quality Guidelines

197. This Section briefly supplements the coverage of Water Quality

Guidelines in Section II, above. As noted above, in its Response,

Canada discusses an initiative by DFO, DOE and MELP to develop

and implement a Water Quality Guideline for Dissolved Gas

Supersaturating. (Canada’s July 1997 Response, p. 21).

198. The Expert Group indicates that the issue of water quality extends

beyond the matter of dissolved gas pressure and cites a June 1995

BC HYDRO FINAL FACTUAL RECORD 129
BC Hydro document, Environmental Management System for

Aquatic Resources (“EMS for Aquatic Resources”), in support.

(Appendix 8, paras. 97-98). Two excerpts from this report cited by

the Expert Group are as follows:

Hydroelectric generating facilities and water retention facilities modify water quality in some significant and insignificant ways. In the

broadest sense, water impoundment facilities convert, in most cases,

a flowing river into a large lake. The resulting changes to water quality are substantial. Temperature, dissolved oxygen, total gas pressure, sediment and nutrient levels, pH, and dissolved metals

concentrations all can change by altering the flow regime of a river.

Aquatic organisms that depend upon the physical water parameters

will also be affected by the changes to water quality. In essence, a completely new ecosystem is formed. Some aquatic species adapt and

thrive, others disappear. (EMS for Aquatic Resources, Water Quality

section, p. 1).

Although to date BC Hydro has not been required to explore water

quality issues, and search out problems, such an approach would be

considered becoming more stewards of the water resource. BC Hydro

has a responsibility to operate in a manner which minimises [sic] the

impact on the water resource. In the case of water quality, the corporation is not aware how its operations affect the water quality at most

facilities. Examining this deficiency would form the first attempt at

becoming stewards of the water resource, and being duly diligent at

the same time. (EMS for Aquatic Resources, Water Quality section,

pp. 3-4).

199. The Expert Group states that “[t]he impacts attributed to the water

quality issue by BC Hydro are far more diverse than the single gas

pressure issue discussed by DFO.” (Appendix 8, para. 99).

200. The Expert Group indicates that, “[i]n sum, limited information

was provided relating to whether Water Quality Guidelines have

to date been an effective instrument of Fisheries Act enforcement.”

(Appendix 8, para. 101).

4.0 Review of Information for Six BC Hydro Facilities

201. The significant number of BC Hydro facilities involved in this submission made it impracticable to review each facility in detail.

Instead, a subset of six facilities was identified for more detailed

review. A proposed list of six facilities that the Expert Group

believed merited relatively in-depth review was provided to the

130 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Stakeholders and they were specifically asked to identify other

facilities that merited such review. The decision to select a subset of

facilities was summarized as follows:

The experts believe that a focus on these [six] facilities will enable

them to develop information concerning the primary types of adverse

impacts on fish habitat sometimes caused by hydroelectric operations

and the full range of Canada’s responses. Further, this focus will

enable the experts to develop information concerning the system as a

whole and it will capture the major watersheds involved. (22 January

1999 Letter to the Stakeholders, Appendix 1; See also Appendix 8,

para. 29).

202. The Expert Group reviewed the information provided on each of

the six BC Hydro facilities selected for relatively in-depth review.

The Expert Group reviewed the allegations of the Submitters as

well as the information concerning these allegations provided by

Canada and BC Hydro. A series of specific questions was developed to supplement the information originally provided. (See 3

February 1999 Questions in Appendix 4, and 21 April 1999 Questions in Appendix 5). The Expert Group reviewed the follow-up

information submitted. The Expert Group then developed its own

information concerning the issues involved.

203. Section 5 of the Expert Group Report contains the Expert Group’s

compilation of information it developed or that was provided concerning each of these facilities. For each covered allegation, Section

5 begins by summarizing the allegation itself. It then summarizes

Canada’s response, in some cases including supplementary information provided by BC Hydro. The Expert Group then identifies

the questions asked in order to develop additional information.

Finally, the Expert Group provides the information it developed

concerning each allegation.

204. The reader is referred to the Expert Group Report for the extensive

information developed and summarized by the Expert Group concerning each of the six facilities. (See Appendix 8, paras. 102-218).

In its “Overall Summary About the Six Facilities,” the Expert

Group makes five points concerning Canada’s efforts to resolve

the harm to fish habitat caused by BC Hydro operations (all paragraph references below are to the Expert Group Report in Appendix 8):

• In many situations, BC Hydro operations have caused and/or

are continuing to cause harm to fish habitat; (para. 215)

BC HYDRO FINAL FACTUAL RECORD 131
• Canada has undertaken a number of actions to resolve the habitat issues at the BC Hydro operations. These actions vary widely

in nature. They “rang[e] from technical discussion and negotiation to flow orders and occasional legal action.” (para. 216).

• Based on the information provided, the amount of attention

Canada has given to resolving various habitat issues has varied

significantly depending on the facility involved:

Based on the highly variable amount of information provided by

Canada on each facility, the degree of attention and effort

directed by Canada to addressing habitat problems at the different facilities appeared to be very uneven. For example, based on

the information provided, the Campbell River downstream from

John Hart dam and its tributary the Quinsam River appear to

have received a great deal of attention, presumably in consideration of a locally important but relatively small run of chinook

salmon. By contrast, the Peace River system has received virtually no attention despite being one of the largest river systems in

Canada, an interprovincial waterway, an important element in

sustaining the Peace Athabasca Delta (a World Heritage site) and

an important breeding and feeding ground for several important

fish species (whitefish, goldeye, charr, burbot), important to a

number of First Nations and an important heritage river (Mackenzie’s route to the Pacific). In a similar vein, one can compare

the considerable attention directed to effects of Keenleyside

Dam on the Columbia with the limited attention directed at the

Bennett and Peace Canyon dams. (para. 216).

• The capacity of the Expert Group to develop information concerning the effectiveness of Canada’s enforcement efforts, or for

the public or others to consider the effectiveness of such efforts,

is limited by information gaps:

Lack of well researched, quantitative information appears to be

the primary obstacle to reviewing the effectiveness of Canada’s

enforcement actions. In virtually all instances in which the

Expert Group requested hard technical information, little or

none was provided. (para. 218).

The Expert Group notes:

The habitat problems created by construction and operation of

hydroelectric facilities are complex and multifaceted and there is

no scientific consensus about how best to deal with most of these

problems. (para. 218).

132 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
• There are issues associated with Canada’s use of No Net Loss as

the measure of effectiveness for its efforts to enforce Fisheries Act

Section 35(1). (paras. 217, 220-224). These issues are discussed in

the coverage of the No Net Loss principle in Section III.B.3.1

above.

205. In addition to the information contained in the Expert Group

report concerning the six facilities, this Factual Record provides

information on one of the six facilities, the W.A.C. Bennett Dam.

The Athabasca Chipewyan First Nation (ACFN) 22 March 1999

Submission of information for consideration as part of the Factual

Record (the “ACFN Submission”) raises a series of concerns about

the dam’s downstream impacts on the Peace-Athabasca Delta. The

ACFN is an Indian Band within the meaning of the Indian Act and

its members are Indians within the meaning of the Constitution of

Canada (1982). Its territory includes Reserve 201, which lies wholly

within the lands and waters known as the Peace-Athabasca Delta,

a traditional hunting area and world heritage site. (ACFN’s March

1999 Submission, p. 1).

206. The Expert Group identifies several general investigations of various issues raised by the ACFN: Peace-Athabasca Delta Implementation Committee (Canada, Alberta, Saskatchewan, 1987);

Northern River Basins Study (Canada, Alberta, NWT, 1996); and

Parks Canada (Wood Buffalo National Park, 1997). (See Appendix

8, para. 141). Information in the following paragraphs is taken

from materials submitted by the ACFN. 19

207. The ACFN Submission alleges that the construction and operation

of the Bennett Dam have “substantially changed the hydrology

and ecology of the Delta.” It further asserts that these changes are

“causing direct and serious harm to [Indian Reserve] 201 and the

ACFN.” (ACFN’s March 1999 Submission, p. 1). The submission

describes the impacts of the Bennett Dam on the ACFN’s territory

as follows:

BC Hydro’s operations of the Bennett Dam have had profound effects

on the water regime in Northern Alberta and the ACFN’s territory.

BC HYDRO FINAL FACTUAL RECORD 133

19. In addition to its Submission, the ACFN submitted a March 1998 report of the

Indian Claims Commission entitled Athabasca Chipewyan First Nation Inquiry,

Report On: WAC Bennett Dam and Damage to Indian Reserve No. 201 Claim (the

“Indian Claims Commission Report”). It also submitted a December 1992 report

entitled A Preliminary Assessment of the Effects of the W.A.C. Bennett Dam on the

Athabasca River Delta and the Athabasca Chipewyan Band (the “Preliminary Assessment”).
These effects include the drying up of a significant portion of the

Delta as a result of the alteration of natural water flow patterns which

in turn has [led] to a loss of a significant amount of flora and fauna

which are expected to be permanent if the flow alterations continue

into the next century. (ACFN’s March 1999 Submission, p. 2).

208. The Indian Claims Commission Report makes the following statement concerning the damage the construction and operation of the

Bennett Dam have caused to Indian Reserve 201 (“IR 201”):

[T]he compelling evidence before us... leads inescapably to the conclusion that significant environmental damage was sustained by the

First Nation and IR 201 by the construction and operation of the

Bennett Dam. No other conclusion is possible from the prima facie evidence before us. (Indian Claims Commission Report, pp. 48-49).

The Report qualifies its findings by noting that they are subject to

rebuttal by Canada:

[W]e offer our findings on the prima facie evidence. These findings are

subject to rebuttal by Canada upon production of additional scientific

evidence on whether the Bennett Dam caused or contributed to the

drying of the delta and the perched basins on IR 201. (Indian Claims

Commission Report, p. 58).

209. The ACFN Submission provides the following information on fish

species and habitat harmed:

Important fish species in the vicinity of the Delta include walleye,

pike and goldeye. Reduced spring flood levels in the Delta, associated

with the Bennett Dam, have restricted access by spawning walleye to

Richardson Lake, the most important production area for walleye in

the Delta. There are also concerns that the modified flow patterns

reduce shoreline vegetation and invertebrate food for juvenile fish.

Altered flow patterns also appear to reduce access and egress by juvenile fish to important nursery areas in some drainage basins. (ACFN’s

March 1999 Submission, p. 4; See also Preliminary Assessment, pp.

23-24).

210. The ACFN Submission quotes the following passage from the

Indian Claims Commission Report, which cites the Northern River

Basins Study (NRBS),20 to summarize the harmful impacts, efforts

134 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

20. The Indian Claims Commission Report describes the NRBS and its role as follows:

In 1991, the Northern Rivers Basin Study Board was established to produce a study

and make recommendations to ministers representing the governments of Canada,
to address them, and additional options that are available to

reduce harm to habitat:

NRBS studies confirm that the dam has a significant impact on the

flow patterns, sediment transport, river morphology, ice formation

and habitat along the mainstream Peace River.

Changes to flow and ice patterns are at least partly responsible for the

lack of ice-jam induced floods in the Peace-Athabasca Delta. In the

absence of these floods, the delta is slowly drying out—profoundly

affecting the natural environment and the traditional lifestyles of

local residents. . . .

Several attempts have been made to replenish water levels in the

Peace-Athabasca Delta. These efforts have successfully restored

water levels in the lower lakes and channels but could not flood the

elevated lakes (or “perched basins”). Several new and potentially

more effective options were identified within the NRBS and one

of its companion initiatives—The Peace-Athabasca Delta Technical

Studies.

In light of improved understanding of the mechanisms controlling

flooding of the Peace-Athabasca Delta, the Board feels that these new

remediation options warrant consideration. Accordingly, the Board

recommends that the governments of Canada, Alberta and British

Columbia implement an action plan for remediating the PeaceAthabasca Delta . . . in consultation with affected basi[n] residents.

(ACFN’s March 1999 Submission, p. 3 (citing Northern River Basins

Study); See also Indian Claims Commission Report, p. 55).

211. The ACFN Submission provides the following information on the

consequences of harm to fish and fish habitat in terms of Fisheries

Act s. 35(1):

There can be little doubt that BC Hydro’s Bennett Dam operations

have violated section 35(1) of the Fisheries Act in the Delta. Prior to the

operations of the Bennett Dam commencing, the waters of many

fish-bearing lakes in the Delta were replenished through spring

flooding. BC Hydro’s operations have reduced the extent and frequency of flooding and many former lakes have simply disappeared.

It is hard to imagine a more clear “harmful alteration, disruption or

BC HYDRO FINAL FACTUAL RECORD 135

Alberta, and the North West Territories on issues affecting the waterways. The BC

government did not participate in the study. After four and a half years of scientific

study, the Board published its report, Northern Rivers Basin Study, in 1996 and made

a number of sweeping recommendations and conclusions. (Indian Claims Commission Report, p. 53).
destruction of fish habitat.” To our knowledge, Canada has neither

attempted to enforce section 35 of the Fisheries Act against BC Hydro

related to the damage to fish habitat in the Delta, nor issued a section

35(2) permit under the Fisheries Act to BC Hydro. (ACFN’s March

1999 Submission, p. 4).

The ACFN asserts that “if the section 35 Fisheries Act were properly

enforced, either the damage to the Delta would be prevented,

or BC Hydro would have to obtain a section 35(2) authorization.

The consideration of a section 35(2) authorization would in turn

require an environmental assessment and provide the ACFN the

opportunity to be heard on these issues.” (ACFN’s March 1999

Submission, p. 4).

212. The following statement from the Northern Rivers Basin Study

Board, quoted in the ACFN Submission, in ACFN’s view “capture[s] the essence” of ACFN’s position concerning the “enforcement failures” at the Bennett Dam:

The Board stresses that economic factors in hydroelectric production

must not be allowed to take precedence over environmental stability.

The Board recommends as a principle for any future negotiations

regarding mitigation measures, that the operational regime of the

Bennett Dam be modified to aid the restoration of the Peace River

and the Peace-Athabasca Delta. (ACFN’s March 1999 Submission,

p. 5, emphasis in original; See also Indian Claims Commission Report,

p. 55).

213. The Secretariat contacted Canada and BC Hydro in an effort to

obtain information relating to the ACFN’s claims. Canadian officials did not provide any such information. The Secretariat talked

with an attorney representing BC Hydro. The attorney indicated

that ACFN has initiated a lawsuit against BC Hydro in the Court of

Queens Bench of Alberta over these matters. The attorney indicated that the issue of how much damage the Delta has suffered,

and the extent to which such damage is due to the impact of the

Bennett Dam on flows (if at all) are subject to resolution in the

pending lawsuit. The attorney further indicated that while the

issues raised by the ACFN above are raised in the lawsuit, the litigation is at an early stage. A Statement of Defense has not yet been

filed. Thus, the merits of the issues have not yet been addressed

in the litigation.

136 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
5.0 Summary

214. This final Section of the Factual Record summarizes the challenges

facing Canada as well as the Province of British Columbia and BC

Hydro itself in resolving the asserted s. 35(1) violations and harm

to fish habitat caused by BC Hydro’s operations. Next, it summarizes Canada’s responses to these challenges. The Section covers

these responses by first briefly reviewing efforts other than water

use planning. It then closes with some final points on the WUP

process.

5.1 Background Factual Information Concerning the Challenges Facing

Canada in Resolving Asserted Section 35(1) Violations and Harm to

Fish Habitat Caused by BC Hydro Operations

215. The Submitters assert that BC Hydro operations routinely cause

harm to fish habitat in violation of s. 35(1). BC Hydro indicates that

storage of water and flow changes—”unavoidable features of the

hydroelectric system”—”inevitably affect fish and fish habitat.”

(BC Hydro’s February 1999 Submission, p. 1). In its 1995 response

to BC Hydro’s ESOR, the province states:

BC Hydro has historically operated its electric generating system in

accordance with power production objectives and attendant flood

control advantages.... However, within this context, non-power values have occasionally been substituted for the aforementioned power

and flood control objectives in certain circumstances, but not always

in a systematic, clearly articulated basis. (Government Response

to ESOR, p. 3; See also 4 June 1993 “Directive” letter from Anne

Edwards, Minister of Energy, Mines and Petroleum Resources and

Moe Sihota, Minister of Labour and Consumer Services and Minister

Responsible for Constitutional Affairs, to Mr. Norman Olsen, Chair,

BC Hydro and Mr. Marc Eliesen, Chief Executive Officer, BC Hydro

(Attachment #1 to Government Response to ESOR)).

The WUP Management Committee states that hydroelectric operations inherently affect fish and fish habitat in conflict with the Fisheries Act as interpreted by Canada:

Hydroelectric operations inherently affect fish and fish habitat, such

that through generation of hydroelectric power there is conflict with

the Fisheries Act as interpreted by fisheries agencies. (WUP Management Committee’s March 1999 Submission, p. 31).

BC HYDRO FINAL FACTUAL RECORD 137
The Expert Group points out that “habitat alterations are unavoidable . . . with the operation of hydro electric facilities. . . .” (Appendix 8, para. 232).

216. Canada asserts that it is placing renewed emphasis on resolving

the harm to fish habitat caused by BC Hydro’s operations. BC

Hydro and the Province of British Columbia state that they are

doing so as well. (See, for example, para. 127 above). The Provincial

direction to BC Hydro to conduct the above-referenced ESOR was

an early step in this effort. Canada is involved in several ongoing

enforcement initiatives intended to reduce harm to fish habitat.

217. Canada, among others, indicates that: 1) the issues and complexities associated with resolving harm to fish habitat caused by

BC Hydro’s operations are substantial (see, for example, paras.

37-38 above); 2) among these, determining appropriate trade-offs

between competing interests (including fisheries values) is a significant challenge (see, for example paras. 126 & 132 above); and

3) data gaps are a second challenge that needs to be addressed—an

improved understanding needs to be developed of the fish habitat

potentially impacted by BC Hydro operations, and of the possible

options for resolving the harm to such habitat caused by the operations. (See, for example, paras. 124, 128-129, 139 above).

218. A final background point is that a wide variety of activities other

than hydro operations cause harm to fish habitat. Canada’s

responsibilities under the Fisheries Act embrace addressing such

impacts, although these other activities are not the focus of this

Factual Record. (See, for example, para. 180 above).

5.2 Factual Information Relating to Enforcement Actions Other

than WUP

219. Canada has identified an array of “enforcement” approaches it has

undertaken, and is undertaking, to resolve the harm to fish habitat

caused by BC Hydro operations.

• Prosecutions have occasionally been used with respect to

BC Hydro. When used, they have been expensive and timeconsuming. They have produced clear benefits to fish habitat.

Elaboration on these points, and on a number of issues relating

to use of prosecutions as an enforcement strategy, is provided in

Sections II and III.B.3.3 above.

138 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
• Canada has used enforcement tools such as Fisheries Act s. 22(3)

orders and ss. 32 and 35(2) authorizations for some BC Hydro

facilities in emergencies and to conduct environmental assessments. The Expert Group indicates that limited information was

provided concerning the effectiveness of the use of these tools.

(See, for example, Appendix 8, paras. 70, 71, 73-76). Canada

appears to contemplate considerably greater use of s. 35(2)

authorizations as part of the WUP process, and the Expert

Group provides information concerning the potential benefits

of such a strategy:

Section 35(2) authorization is an enforcement tool that can be

used in the normal process of managing multiple uses of habitat.

Although Section 35(2) does not appear to have been often used

in this way in the past, DFO indicates that it intends to use such

authorizations as part of the WUP process. A wider use of Section 35(2) authorizations would rationalize a process that, at

present, appears haphazard and arbitrary. In particular, where

habitat alterations are unavoidable, such as with the operation of

hydro electric facilities, Section 35(2) authorizations should provide a means of establishing expectations for habitat quality and

productivity in the context of facility operation. (Appendix 8,

para. 232).

• Various Committees have been created to encourage enhanced

attention to habitat issues. Some improvements in fish habitat

have resulted, though the degree of improvement is not yet

clear. The Expert Group’s comments on the Campbell River

Advisory Committee are illustrative:

The measures recommended by the Campbell River Advisory

Committee are an improvement for fish and fish habitat. . . . The

extent of improvement, and the appropriateness of additional

improvements, are not clear at this point. The changes are too

recent and there has been no opportunity for monitoring over

time. The quantitative proof will be in the salmon returns but

these will not be known for at least four years from the implementation date in 1998, probably much longer. Monitoring of

results to evaluate the extent to which these actions lead to better

habitat and fish return, and undertaking further improvements

depending on these results, are key elements of the effectiveness

of this approach.

Overall, initiatives such as the Campbell River Advisory Committee in which the governments involve numerous interested

parties and develop a comprehensive plan are positive and will

BC HYDRO FINAL FACTUAL RECORD 139
be a good model for the WUP provided it leads to an adequately

funded program. Adequate monitoring of results and, as appropriate, further restorative action, are key elements of such efforts

as well. (Appendix 8, paras. 83-84).

• Significant water quality issues exist for BC Hydro operations.

Water quality guidelines have been identified as an enforcement tool for preventing harm to fish habitat, but to date have

not been used in a significant way for this purpose based on the

information provided.

220. The Expert Group Report, attached as Appendix 8 and summarized in Section III B.4.0 above, reviews Canada’s enforcement

activities, and their impacts, in considerable detail in the context of

the six BC Hydro facilities selected for special consideration as part

of the Factual Record process. Some salient information concerning Canada’s activities to resolve harm to fish habitat and the

impacts of these activities is summarized below.

• The Expert Group indicates that the level of effort Canada has

invested in addressing habitat concerns seems to vary widely by

facility. Some facilities have seen extensive efforts to resolve

harm to fish habitat, while others have received relatively little

attention, at least based on the information provided. (See, for

example, Appendix 8, para. 216).

• Where actions have been taken to reduce harm to fish habitat

caused by BC Hydro operations, in many instances these actions

have paid dividends and have led to marked improvements in

fish habitat. Canada, the Province of British Columbia, and

BC Hydro provide considerable information concerning these

actions. They also provide information concerning the results of

some of these efforts. The Expert Group indicates that the fact

that some activities produced benefits is clear but that information generally is limited concerning the degree and adequacy of

benefit produced. The Expert Group also notes that in some situations it will be years before information on the effectiveness of

these actions is available. (See, for example, Appendix 8, paras.

68, 76, 81-84, 101).

• The Expert Group highlights the importance of applying a comprehensive, system-wide approach in resolving harm to fish

habitat. (See, for example, Appendix 8, para. 93).

140 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
5.3 The WUP Process as a Means to Address Fish Habitat Issues

221. WUP is a centerpiece of Canada’s efforts to resolve the harm to fish

habitat caused by BC Hydro operations.

222. It is a new process and its shape and content will likely evolve as it

is implemented.

223. Because it is a new process, an overarching feature of the WUP process is its prospective character.

224. Canada, the Province of British Columbia, and BC Hydro indicate

that the WUP process will lead to reduced harm to fish and fish

habitat from BC Hydro operations. They assert that it will lead to

achievement of NNL and compliance with s. 35(1). As noted above,

Canada states in its March 1999 Submission that, through the WUP

process, it “expect[s] to achieve as a minimum, a baseline condition

which is in full compliance with Fisheries Act requirements at each

facility.” (Canada’s March 1999 Submission, p. 29). The WUP Management Committee also indicates that the WUP process will lead

to compliance with Fisheries Act s. 35(1):

Facility operations that are in accordance with the terms and conditions of an approved WUP will be in compliance with . . . the Fisheries

Act. (WUP Management Committee’s March 1999 Submission, p. 12).

And, again:

Operations that are in accordance with the terms and conditions of a

Water Use Plan approved by DFO, and if applicable a Fisheries Act

authorization (and accompanyingCanadian Environmental Assessment

Act review), will be in compliance with the Fisheries Act. (WUP Management Committee’s March 1999 Submission, p. 13).

225. Recognizing that important data gaps exist in understanding the

fish habitat situation, Canada, the Province of British Columbia,

and BC Hydro state that they have designed the WUP process to

include collection and gathering of necessary data.

226. Similarly recognizing that “no one has all of the answers” at this

point regarding how best to resolve harm to fish habitat caused by

BC Hydro’s operations, the WUP Management Committee indiBC HYDRO FINAL FACTUAL RECORD 141
cates that the WUP process has been designed to include measures

for assessing compliance, a monitoring plan, and the possibility of

adaptive management that provides opportunities to incorporate

evolving knowledge:

A scheduled review period, coupled with adaptive management will

provide opportunities to incorporate evolving knowledge. (WUP

Management Committee’s March 1999 Submission, p. 13; See also

1998 WUP Guidelines, p. 36).

The WUP Management Committee indicates that it has built additional “adaptability” into the WUP process as needed to address

fish habitat concerns. In particular, DFO may trigger review of a

WUP if new issues or conflicts affecting fish or fish habitat emerge

during a plan’s implementation. Further, the WUP Management

Committee states a commitment to meet expeditiously to resolve

any emergency situations affecting fish or fish habitat that arise.

(WUP Management Committee’s March 1999 Submission, p. 13).

227. The Submitters raise several concerns about the WUP process.

First, they raise questions as to whether the process will proceed as

planned:

The delays in the WUP Process bring into question whether there is

any consensus for the Process and whether the Process will actually

begin. When the Process was announced in 1996, the intention was to

review all 34 BC Hydro projects within five years. To date, the Guidelines for the Process have not even been finalized. (Submitters’ 26 January 1999 Speaking Points, p. 4).

(The Submitters made this statement in January 1999. The Guidelines were finalized the following month, in February 1999.)

228. The Submitters also claim that, even if WUP is implemented as

planned, BC Hydro operations will continue to cause harm to fish

habitat and continue to violate Fisheries Act s. 35(1) following completion of the WUP process. The Submitters’ view is that activities

that harm fish habitat violate s. 35(1) unless Canada issues an

authorization under s. 35(2) that authorizes such harm:

[E]ffective enforcement of section 35 occurs only when harm to fish

habitat is prevented, or is authorized [under s. 35(2)] after environmental assessment—the legislative scheme clearly contemplated by

section 35. (Submitters’ 22 March 1999 Submission, p. 2).

142 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The Submitters assert that s. 35(2) establishes a specific process for

consideration and issuance of authorizations that includes compliance with the Canadian Environmental Assessment Act (CEAA). The

Submitters assert that the WUP process will not produce compliance with s. 35(1) because, in their view, the WUP process does not

meet the requirements of s. 35(2) and the CEAA. The Submitters

identify five “deficiencies” they believe may exist in the WUP process:

1) Applicability: Section 35(2)/CEAA “applies to a much

broader range of activities than the proposed WUP process;”

2) Scope: Section 35(2)/CEAA may result in more information

being gathered than will occur under WUP, including information regarding cumulative effects of facilities;

3) Public Participation: “There can be little doubt that the public

is guaranteed greater access to information and greater levels

of input under the s. 35(2)/CEAA process;”

4) Decision Making Authority: “The ultimate decision making

authority under the s. 35(2)/CEAA process rests with an

independent government authority” (Canada), while “[t]he

ultimate decision for selecting a WUP Plan rests with the

licensee/proponent;” and

5) Reviewability: “The requirements and prohibitions of CEAA

can be enforced by the Federal Court of Canada...[while] [i]t

is very unlikely that the requirements and scheme of the

WUP Process Terms of Reference could be enforced by any

court. . . . The Submitting Parties are concerned that, relative

to the s. 35(2)/CEAA process, the WUP Process lacks adequate (in fact, any) procedural safeguards to ensure the integrity of the process.” (Submitters’ 22 March 1999 Submission,

pp. 10-13; see also para. 140 above).

229. A final concern raised by the Submitters is that the WUP process

may lead to unwise expenditures, as the Submitters assert has

occurred to some degree in the United States. (See, for example,

para. 140 above).

230. The Expert Group indicates that the WUP process is an improvement in many ways over previous strategies to resolve harm to fish

BC HYDRO FINAL FACTUAL RECORD 143
habitat caused by BC Hydro operations. The Expert Group indicates that:

WUP is a move in the right direction towards achieving greater protection of fish and fish habitat from the harmful impacts of hydroelectric operations. It is a much more comprehensive approach to

gathering data, identifying harmful impacts and developing action

plans to protect fish and fish habitat at each facility than the ad hoc

approaches currently being used. (Appendix 8, para. 90).

231. In stating that the overall direction of the WUP process is promising, the Expert Group also notes that the “proof” will lie in the

results over the next several years:

In sum, the WUP process holds promise as an enforcement strategy.

Because the process is at an early stage, little information exists

concerning the extent to which the WUP process will prove to be an

effective enforcement strategy. Assessments of its effectiveness must

await implementation of the process over the next several years.

(Appendix 8, para. 95; See also Appendix 8, para. 235).

232. The Expert Group identifies a series of issues to monitor concerning whether the WUP process will prove to be effective (all paragraph references below are to the Expert Group Report in

Appendix 8):

• The use of the “No Net Loss” (NNL) principle as the criterion for

effective enforcement of s. 35. First, the Expert Group notes that

the NNL principle allows the destruction of fish habitat. (para.

220). The Expert Group states that NNL may allow habitat loss

to occur after a baseline is set so long as compensation is made

for such losses. It indicates that “critical habitat” is “supposedly

not subject to compensation but even this is a qualified limitation.” (para. 220). Next, the Expert Group indicates that

Canada’s approach to determining NNL for purposes of BC

Hydro’s facilities may allow harm to habitat that occurs before a

baseline is set:

Setting the baseline conditions at the habitat level that exists when

Water Use Plans (WUP) are initiated or in the recent past sets the bar

too low for habitat protection. There is no requirement to address the

possibly significant habitat loss sustained before the baseline scenario

was established. Habitat conditions have generally declined since the

installations of hydroelectric facilities. (para. 51; see also para. 223).

144 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Along the same lines, the Expert Group states:

If arresting the ongoing decline in fish habitat quality at most

facilities is a “sufficient” outcome from WUP, as suggested by

the documentation provided by Canada, then this will compromise the long term productivity of many important fish stocks.

(para. 235).

A third issue concerning using achievement of NNL as an indicator of effective enforcement of s. 35(1) will involve whether

Canada assesses all of the impacts to fish habitat in setting a

baseline. The Expert Group indicates that an approach of only

assessing some of the impacts on fish habitat in setting baselines

would be a methodological concern regarding the value of such

baselines. (paras. 52, 223).

A fourth issue the Expert Group identifies relating to baselines

is that “[t]o apply NNL as a criterion of effectiveness, there must

be a firm baseline in time against which to judge losses and

gains in habitat. That is to say, there must be a set point in time at

which habitat condition is determined and against which future

changes in habitat can be judged.” (para. 222). The Expert

Group raises a question as to whether such a baseline currently

exists. It further indicates that “[w]ithout such a baseline, Canada cannot show that NNL is being achieved. Indeed, recent

reports indicate considerable uncertainty and confusion

regarding the present status of fish habitat in the Pacific region.”

(para. 222).

A final, related question involves the extent to which the WUP

process will seek to achieve, and realize, a net gain in fish habitat. Canada indicates that it advised the province that “as a general objective DFO will seek to achieve an overall net gain to the

fisheries resources of British Columbia” and that this principle

was accepted by the province and BC Hydro. (Canada’s March

1999 Submission, pp. 29-30). In its March 1999 Submission, Canada cites the Terms of Reference for the WUP Policy Committee.

They provide that “changes in operations to improve conditions

above baseline conditions (i.e., to further improve current habitat productive capacity to enhance fish production potential)

will be evaluated along with the needs of other water use objectives and therefore considered to be in the trade-off zone.” (Canada’s March 1999 Submission, p. 30).

BC HYDRO FINAL FACTUAL RECORD 145
• The extent to which the consultative process used under WUP

differs from that used under CEAA as part of the s. 35(2) authorization process. The Expert Group states that any attempt by

Canada to substitute a WUP review process for CEAA may raise

important issues of credibility concerning the process. (para.

235).

• Impacts on effectiveness stemming from the fact that WUP is

a purely voluntary process and is not mandated under any

particular statute. The Expert Group indicates that although

this allows considerable flexibility in the process, it may also

weaken its effectiveness and credibility. (para. 235).

• Canada’s approach to addressing the complex problem of BC

Hydro’s integrated system operations as it negotiates changes

to operations at individual facilities under WUP. The Expert

Group states that it is well known that impacts at individual

sites will vary according to the way in which the entire system is

operated and vice versa. (para. 235).

• How Canada will address the necessary trade-offs between fish

habitat and other water uses that will arise in the WUP process.

The Expert Group indicates that “[n]either the WUP documentation nor any of the submissions by Canada indicate how

Canada will address” these trade-offs. (para. 235).

• The adequacy of efforts to develop data needed to understand

(a) the harm to fish habitat caused by BC Hydro’s operations,

and (b) the consequences of attempts to resolve such harm. The

need for data on fish habitat and options for resolving harm

caused to it by BC Hydro operations is a theme sounded by Canada, the province and BC Hydro. As discussed above, these

three parties have made filling this need a key element of the

WUP process. The Expert Group was “struck by how limited

and anecdotal the information on fish and fish habitat for these

[the six targeted] facilities seemed to be.” (para. 226).

• The amount of time it takes to develop and implement water use

plans. The Expert Group states that the longer the process takes

to be completed, the greater will be the ongoing impacts on fish

habitat. Thus, the timetable for actual development and implementation of WUPs will be important to monitor. (para. 235).

146 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
• The nature and effectiveness of Canada’s follow-up if s. 35(2)

authorizations are not issued for particular facilities, or if such

authorizations are issued but terms relevant to protection of fish

habitat are violated. The Expert Group states that, among other

things, “[e]ven if negotiations lead to a WUP that is acceptable to

DFO, this does not mean that all parties will respect the plan, or

that violations of s. 35 will not still occur.” (para. 95).

233. A final statement concerning the Submitters’ and the Party’s views

on the WUP process is as follows:

The Submitters’ assertion appears to be that the WUP process may

constitute effective enforcement of s. 35(1) of the Fisheries Act if the

process includes three key elements:

• Canada decides that a s. 35(2) authorization is needed for each

BC Hydro operation that continues to cause or could continue to

cause harm to fish habitat. The Submitters’ concern is that Canada will decide that it does not need to issue a s. 35(2) authorization for one or more BC Hydro operations that continue to cause

harm to fish habitat or could do so;

• Canada follows s. 35(2) and CEAA requirements in reviewing

whether an authorization should be issued and in determining

the terms and conditions to be included in each authorization.

The Submitters’ concern is that Canada will not follow the s.

35(2)/CEAA procedures in those situations in which it decides

to issue such an authorization; and

• Canada “effectively enforces” (through prosecutions or otherwise) in those situations (if any) in which it declines to issue an

authorization and the facility continues to operate in a way that

violates s. 35(1) by harming fish habitat, and in situations (if any)

in which there is noncompliance with an authorization.

As to the first element, Canada indicates that “it is likely that

authorizations will be issued at many facilities as WUP’s are implemented throughout BC.” (Canada’s March 1999 Submission, p.

16). In its March 1999 Submission, the WUP Management Committee indicates that the “[m]echanism to link WUPs to regulatory

compliance” is that “one of two outcomes will prevail:”

1. No remaining fisheries impacts wherein no further action is

required (i.e., no formal response from DFO); or

BC HYDRO FINAL FACTUAL RECORD 147
2. Outstanding fisheries impacts whereupon the DFO Minister will

provide a single authorization to cover all fish impacts arising

from the WUP operating parameters, with all mitigation and

compensation embedded in the WUP. (WUP Management Committee March 1999 Submission, p. 13-14).

Regarding the second element, Canada states in its March 1999 Submission that “[t]he method for determining whether and how to issue

s. 35(2) authorizations is more fully explained in the Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat (1998).” (Canada’s

March 1999 Submission, p. 16). As noted above, the Decision Framework provides that a “CEAA environmental assessment must be

completed” before Canada will issue an authorization. The WUP

Management Committee states that s. 35(2) authorizations “will,

themselves, be subject to a review under the [CEAA].” (WUP Management Committee March 1999 Submission, p. 31).

Concerning the third element, Canada states that it will investigate

and proceed with charges under the Fisheries Act where evidence is

available. (See for example, para. 183 above).

The Expert Group indicates that facts concerning each of these

three elements will emerge as the WUP process is implemented,

authorizations are considered (and issued or rejected), and monitoring and other follow-up are undertaken. (See, for example,

Appendix 8, para. 235).

148 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
APPENDICES

APPENDIX 1

Letters to Canada, the Submitters, the Province

of British Columbia, and BC Hydro

December 18, 1998

Mr. Randy Christensen

Barrister and Solicitor

Sierra Legal Defence Fund

Suite 214-131 Water St.

Vancouver, B.C.

V6B 4M3

Dear Mr. Christensen:

The Council for the Commission for Environmental Cooperation

(Commission) has directed the Commission’s Secretariat to develop

a draft factual record in connection with Submission No. SEM-97-001.

The enclosed “Synopsis” provides an overview of the Commission and

summarizes key features of Articles 14 and 15 of the North American

Agreement on Environmental Cooperation (Agreement), which govern the

preparation of a draft factual record. The Synopsis also outlines the

process the Secretariat intends to follow in developing the draft factual

record.

The Secretariat’s primary focus in this process involves developing

information concerning whether Canada is effectively enforcing its

environmental laws in connection with various alleged BC Hydro violations of Fisheries Law Section 35(1). We are interested in receiving written comments relating to this issue and we have prepared the attached

document entitled Scope of Inquiry in an effort to help interested parties

focus their comments on the effectiveness of the Canadian approaches.

As the document reflects, Canada has defined enforcement quite

broadly and we are interested in obtaining information concerning the

151
full range of activities Canada has identified. We will accept comments

until February 23, 1999. Information provided prior to January 20 will

be provided to the Expert Group we have convened in order to help

them perform their role of providing additional information concerning

whether Canada is enforcing its environmental laws effectively.

We believe it would be appropriate for you and/or your representatives to present information to the Expert Group concerning the effectiveness of the Canadian efforts during their first meeting, which we

have scheduled for the week of January 11th. We will contact you to discuss the specific date, time, and location. We also intend to provide an

opportunity for you to meet with the experts once they complete their

work to assist you in submitting any additional information to the Secretariat.

Stephen Owen and his Associate, Alex Grzybowski, of the UVic

Institute for Dispute Resolution are assisting in this process. As a matter

of protocol, please provide all written information to the Secretariat, care

of the Institute [Institute for Dispute Resolution, University of Victoria,

Begbie Building, P.O. Box 2400 STN CSC, Victoria, B.C. V8W 3H7]. This

information will be available for public review at the Institute’s office

subject to claims of confidentiality (see, for example, Articles 11 and 39 of

the Agreement). Please also provide copies of all documents to each

of the individuals copied on this letter whose name has an asterisk

next to it, again subject to claims of confidentiality, as well as to me

in Montreal. Please feel free to contact Alex [(250) 656-1317, email:

grzybowski@tnet.net] or me with any questions concerning the process.

Your continued cooperation in this process is greatly appreciated.

Yours sincerely,

(original signed)

David L. Markell

Head, SEM Unit

Commission for Environmental Cooperation

cc: Jon O’Riordan*

Assistant Deputy Minister, Environment and Lands Regions

Division, Ministry of Environment, Lands and Parks

P.O. Box 9339 Stn. Prov. Gov. Victoria, B.C. V8W 9M1

152 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Mike Nassichuk*

Manager, Pollution Prevention and Assessment, Environment

Canada

224 West Esplanade, North Vancouver, B.C. V7M 3H7

Peter Delaney*

Chief, Habitat Conservation and Policy Unit, Department of

Fisheries and Oceans

555 West Hastings St. Vancouver, B.C. V6B 5G3

Keith Ogilvie*

Special Advisor, International Relations, Intergovernmental

Relations

2nd Floor, 421 Menzies St. Victoria, B.C. V8V 1X4

Hugh Smith*

Manager, Strategic Fisheries, B.C. Hydro Resource

Management

6911 South Point (E08), Burnaby, B.C. V3N 4X8

Karen Traversy

Special Projects, Habitat Management Branch, Department of

Fisheries and Oceans

200 Kent St. Ottawa, Ont. K1A 0E6

Andy Bowcott

Manager, North American Global Strategies, Environment

Canada

351 St. Joseph Boulevard, Hull, Que. K1A 0H3

APPENDIX 1 153
January 22, 1999

Mr. Randy Christensen

Barrister and Solicitor

Sierra Legal Defence Fund

Suite 214-131 Water St.

Vancouver, B.C.

V6B 4M3

Dear Mr. Christensen:

Please be advised that as part of its effort to develop information, the

Expert Group convened in connection with Submission No. SEM-97-001

has decided to focus particular attention on six B.C. Hydro hydroelectric

installations/ongoing operations.

• W.A.C. Bennett/Peace Canyon

• Keenleyside

• Shuswap Falls

• Cheakamus

• Walter Hardman

• John Hart

The experts believe that a focus on these facilities will enable them to

develop information concerning the primary types of adverse impacts

on fish habitat sometimes caused by hydroelectric operations and the

full range of Canada’s responses. Further, this focus will enable the

experts to develop information concerning the system as a whole and it

will capture the major watersheds involved. The experts are interested

in developing information concerning the nature of the impacts on fish

habitat caused by the B.C. Hydro operations’ alleged non-compliance,

the types of actions the government has taken to reduce the impacts, and

the extent to which the government’s actions and B.C. Hydro’s efforts

have been successful in reducing impacts.

Please advise the Expert Group immediately if you believe that another

facility should be reviewed, care of Alex Grzybowski, phone: (250)

656-1317, fax: (250) 656-1357, email: grzybowski@tnet.net.

Yours sincerely,

(original signed)

Alex Grzybowski

Associate

UVic Institute for Dispute Resolution

154 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
February 4, 1999

Mr. Randy Christensen

Barrister and Solicitor

Sierra Legal Defence Fund

Suite 214-131 Water St.

Vancouver, B.C.

V6B 4M3

Dear Mr. Christensen:

This letter provides an update on the ground rules for the submission of information in writing to the Commission for Environmental

Cooperation’s Secretariat and for the upcoming meetings with the

Expert Group. As Alex Grzybowski and/or Jennifer Ellis have indicated

in various discussions, we have extended the January 20, 1999 date for

written submissions to the Expert Group, including written responses to

the Expert Group Questions. The revised date for providing such information is February 23, 1999. Consequently, if you would like the experts

to be aware of information, please provide it by that date to the Secretariat, care of the Institute for Dispute Resolution, University of Victoria,

Begbie Building, P.O. Box 2400 STN CSC, Victoria, B.C. V8W 3H7. Please

forward a copy to me in Montreal as well. The Secretariat intends to circulate information provided in written form by each stakeholder to the

other three key stakeholders, subject to claims of confidentiality under

the Agreement. Accordingly, please make such a claim if you believe that

portions of the written materials you are submitting warrant such treatment.

Alex Grzybowski and Jennifer Ellis have been in contact with the

stakeholders to firm up the schedule for oral presentations to the Expert

Group. The Expert Group meetings will be held in Room 2200 at Simon

Fraser University at Harbour Centre, 515 West Hastings St. Vancouver,

B.C. B.C. Hydro is scheduled to present on Wednesday, February 10,

1999 from 2:00 p.m. to 4:30 p.m. and Alex is in the process of arranging

the schedule for Canada and the Province of British Columbia for Thursday, February 11, 1999. Meetings with the experts will be subject to the

same ground rules as written comments. That is, each meeting will be

open to the other three stakeholders (who will be present as observers

only), subject to the presenter’s right to assert confidentiality. As a result,

if you anticipate that confidential information will come up during your

presentation and therefore believe the presentation should be confidential, please advise the Secretariat in advance. The Secretariat recognizes

that oral presentations may present unique issues because of the giveAPPENDIX 1 155
and-take involved and the potential difficulty in isolating confidential

matters from other parts of an oral presentation. We are prepared to take

such realities into account to ensure that any concerns about the confidentiality issue in the context of the oral presentations are addressed

appropriately.

Thank you,

David L. Markell

Head, SEM Unit

156 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
February 18, 1999

Mr. Randy Christensen

Barrister and Solicitor

Sierra Legal Defence Fund

Suite 214-131 Water St.

Vancouver, B.C.

V6B 4M3

Dear Mr. Christensen:

This letter provides a further update concerning the schedule for

Submission 97-001. As you are aware, at Canada’s request, we postponed the February 11, 1999 presentation. Jennifer Ellis or I will contact

you to provide the details concerning the rescheduled presentation.

Because of the change in meeting dates, and in an effort to accommodate requests we have received from several stakeholders, we have

extended the date for submitting written information from February 23,

1999 until March 8, 1999. If you would like the Expert Group and Secretariat to consider information, please provide it by that date. The experts

will be reviewing information between now and March 8, 1999. As a

result, please provide information for our consideration as soon as it is

convenient for you to do so. As was indicated in previous communications, please assert confidentiality for any information you believe warrants such treatment.

Yours sincerely,

(original signed)

Alex Grzybowski

Associate

APPENDIX 1 157
March 12, 1999

Mr. Randy Christensen

Barrister and Solicitor

Sierra Legal Defence Fund

Suite 214-131 Water St.

Vancouver, B.C.

V6B 4M3

Dear Mr. Christensen:

As previously discussed, the Secretariat has extended the time for

providing written information for consideration as part of the Factual

Record process from March 8, 1999 until March 22, 1999. Please provide

any information by that date. The Secretariat and Expert Group will contact you with any questions or requests for additional information.

Thank you,

(original signed)

David L. Markell

Head, SEM Unit

158 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
APPENDIX 2

Synopsis, 18 December 1998

The Commission for Environmental Cooperation (CEC) is an

international organization created under the North American Agreement

on Environmental Cooperation (Agreement) by Canada, Mexico, and the

United States. The CEC operates through a Council (made up of the

highest-level environmental official in each country), a Joint Public

Advisory Committee (JPAC), comprised of five citizens from each country, and a Secretariat (headquartered in Montreal).

Article 14 of the Agreement allows citizens to file submissions

claiming that any of the three countries, Canada, Mexico, or the United

States, is failing to effectively enforce its environmental laws. The Council may instruct the Secretariat to prepare a factual record in connection

with particular submissions. A key purpose of factual records is to

develop information concerning specific enforcement practices of a

country. Among other benefits, a factual record may assist the public in

assessing the effectiveness of such practices. A factual record may be

particularly valuable where facts are disputed or where the facts simply

have not been put before the public.

The Secretariat submits each draft factual record to the Council.

Any of the three countries may provide comments concerning the accuracy of the draft. The Secretariat incorporates, as appropriate, any such

comments in the final factual record and submits the final record to the

Council. The Council then determines whether to make the final factual

record available to the public.

Two documents explain the process the Secretariat is to follow in

developing a factual record, the Agreement itself, and the Guidelines for

Submission on Enforcement Matters under Articles 14 and 15 of the North

American Agreement on Environmental Cooperation (Guidelines). The Guidelines specify that the Secretariat shall include the following in its draft

and final factual records:

159
1) a summary of the submission;

2) a summary of the country’s response;

3) a summary of any other relevant factual information; and,

4) the facts presented by the Secretariat with respect to the matters raised in the submission.

The Agreement provides that the Secretariat shall consider information submitted by any Party. It also authorizes the Secretariat to consider

relevant information that is publicly available, submitted by any interested non-governmental organization or person or the JPAC, or that the

Secretariat or independent experts develop.

The Council has instructed the CEC Secretariat to prepare a draft

factual record with respect to Submission No. SEM-97-001. This Submission, filed by the Sierra Legal Defence Fund and the Sierra Club Legal

Defense Fund (now Earthjustice) on behalf of several non-governmental

organizations, claims that BC Hydro operations have violated Fisheries

Law Section 35(1) on repeated occasions by damaging fish habitat, and

that Canada has failed to take effective enforcement with respect to these

violations. Canada asserts that its enforcement efforts have been effective, and have included a wide range of measures, including prosecutions when required, as well as a series of other strategies such as water

use planning.

It is the Secretariat’s responsibility, pursuant to the instruction of

the Council, to prepare a draft factual record relating to the effectiveness

of Canada’s enforcement practices. In doing so, the Secretariat will

review the information the Submitters and Canada have already provided. The Secretariat will develop additional information by, among

other activities, reviewing the legal and policy context associated with

the alleged violations, developing information by working with independent experts, and obtaining information from interested stakeholders.

In particular, an Expert Group will be convened and asked to provide information concerning the effectiveness of the Canadian approach

to enforcement. Further, stakeholders (e.g., the Submitters, Canada,

British Columbia, and BC Hydro) will have the opportunity to provide

information concerning the effectiveness of the Canadian approach to

enforcement. Each of the major stakeholders listed above will have an

opportunity to meet with, and provide information to, the independent

160 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
experts in mid-January during the experts’ initial round of meetings.

The Secretariat also will accept written comments on the effectiveness of

Canadian enforcement efforts until February 23, 1999.

The Secretariat has retained the services of Stephen Owen and

Alex Grzybowski at the University of Victoria Institute for Dispute Resolution (UVic IDR) to assist the Secretariat to obtain information from

experts and interested parties. Information relating to the effectiveness

of the Canadian enforcement efforts may be submitted to the Secretariat,

care of Mr. Grzybowski, [c/o UVic IDR, University of Victoria, Bebgie

Building, PO Box 2400 STN CSC, Victoria, B.C. V8W 3H7, grzybowski

@tnet.net], again by no later than February 23, 1999.

The Secretariat has established a repository containing key background documents, such as the Submission itself, Canada’s Response,

the Submitters’ Reply, the Council’s Resolution, and the Agreement and

Guidelines, at the University of Victoria Institute of Dispute Resolution

(located in the Law Faculty, Begbie Building, UVic Campus). These

documents are available for review [please call (250) 721-8777 to make

arrangements]. They also are available on the internet from:

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=74&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=79&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=81&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=88&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=160&format=1

http://cec.org/templates/registryview.cfm?&varlan=English&submissionID=9&format=1

Set forth below is the schedule for conducting the process

described above.

Factual Record Development Process and Schedule

1. Legal and Policy Analysis Dec. 18, 1998 to Feb. 23, 1999

2. Expert Group Review Dec. 18, 1998 to Feb. 12, 1999

Ø Preparatory work Dec. 18, 1998 to Jan. 11, 1999

Ø Initial meeting [to include sessions

with various stakeholders] week of Jan. 11, 1999

Ø Final report from Group week of Feb. 8, 1999

Ø Final meeting of Group week of Feb. 8, 1999

APPENDIX 2 161
3. Stakeholder Comment Period Dec. 18, 1998 to Feb. 23, 1999

(note: comments received prior to January 20th will be provided to the expert group for its

information)

For more information, please contact Alex Grzybowski at (250)

656-1317 or grzybowski@tnet.net.

We look forward to your participation in providing information

for this factual record process.

162 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
APPENDIX 3

Scope of Inquiry, 18 December 1998

The Council has instructed the CEC Secretariat to prepare a draft

factual record with respect to Submission No. SEM-97-001. Background

information concerning the CEC and the factual record process are provided in the attached Synopsis.

This Submission, filed by the Sierra Legal Defence Fund and the

Sierra Club Legal Defense Fund (now Earthjustice) on behalf of several

non-governmental organizations, claims that BC Hydro operations

have violated Fisheries Law Section 35(1) on repeated occasions by

harming fish habitat, and that Canada’s failure to prosecute several incidents constitutes a failure to effectively enforce the Fisheries Law. Canada takes a broader view of “effective enforcement.” It identifies as

enforcement a wide range of government measures to address the

alleged violations, including prosecutions when required as well as a

series of other strategies such as water use planning. Canada asserts that

these measures have been effective.

This document is intended to promote development of information regarding whether Canada has been effectively enforcing its environmental laws. The Secretariat has established a repository containing

key background documents, such as the Submission itself, Canada’s

Response, the Submitters’ Reply, and the Council’s Resolution, at the

University of Victoria Institute of Dispute Resolution (located in the Law

Faculty, Begbie Building, UVic Campus). These documents are available

for review [please call (250) 721-8777 to make arrangements]. They also

are available on the internet from:

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=74&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=79&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=81&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=88&format=1

http://cec.org/templates/registrytext.cfm?&varlan=english&documentid=160&format=1

http://cec.org/templates/registryview.cfm?&varlan=English&submissionID=9&format=1

163
Specific BC Hydro operations for which the Secretariat is seeking

information are identified in the Submission and in the Response. Please

be aware that the Council directed the Secretariat not to consider issues

relating to the BC Hydro facilities in the Bridge River hydroelectric system, comprised of the Lajoie, Terzaghi, and Seton dams and their respective reservoirs. Therefore, the Secretariat is not seeking information with

respect to these facilities or their respective reservoirs.

As indicated above, the focus of the Secretariat’s informationgathering process is on whether Canada has been effectively enforcing

its environmental laws. The following types of information, especially

information beyond that already provided to the Secretariat, are particularly relevant:

• Information concerning the nature of the incidents or alleged

violations identified in the Submission and Response and their

impacts on fish habitat;

• Information relating to the nature of the Canadian responses to

these incidents; and

• Information relating to the effectiveness of these responses.

Such information may include, among other things, information relating to the strengths and weaknesses of a particular

response or responses in: a) preventing harmful impacts from

continuing, reducing the severity of continuing impacts,

and/or reducing the likelihood of impacts continuing; b) preventing harmful impacts from recurring in the future, reducing

the likelihood of recurrence, and/or reducing the impact of any

future incidents; or c) repairing or otherwise redressing any

adverse impact to fish habitat caused by incidents.

In providing information, please be aware that the Submitters have

discussed Canada’s enforcement response in terms of institution of proceedings, while Canada has identified a range of additional responses it

believes qualify as enforcement, including:

a) Environmental Assessment of new Hydro Projects and retrofits of

existing operations;

b) Emergency response procedures;

c) Establishment of Regional Technical Committees;

164 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
d) Water Use Planning; and

e) Development of Water Quality Guidelines.

The following five excerpts, quoted directly from the Secretariat

Recommendation to the Council for development of a factual record,

illustrate the types of issues that persist regarding the Submitters’ allegations. The text in bold (which is, again, quoted from the Secretariat’s

earlier document) in particular suggests the kinds of information that

will be especially relevant to the question of the effectiveness of the

Canadian approaches.

1. The Submitters allege that in the summer of 1996, B.C. Hydro

dewatered Cranberry Creek, killing and stranding trout over a 10

km section. Canada’s Response states that the Walter Hardman

development, which affects Cranberry Creek, is a priority for the

WUP initiative, and that DFO has participated in the development

of interim operating orders, which are not yet in effect. It is

not clear from the Response what specific enforcement action

Canada undertook (and the effectiveness of that action) in

response to the incident at Cranberry Creek. Without the benefit

of that information, including information in respect of Canada’s enforcement policies, it is difficult to evaluate whether

there has been effective enforcement with respect to the incident

at Cranberry Creek or the other specified incidents in the Submission.

2. Similar questions apply to allegations which relate to ongoing operational problems. For example, the Submission suggests

that with respect to the Shuswap Falls project, negative effects

have resulted from low winter flows, dewatering, rapid flow ions,

increased sediment levels, and reduced access, as well as impacts

on benthic productivity. In response, Canada lists a number of

actions taken, including the following: (a) commissioning a study

on the impacts of ramping down on flows; (b) the development of a

rule curve which B.C. Hydro is currently declining to use; (c)

DFO’s verbal statement to B.C. Hydro that the flow regime proposed by B.C. Hydro is unacceptable; and (d) DFO’s request to B.C.

Hydro for additional time to monitor work such as flash board

removal. In addition, Canada refers to a request by the B.C. Ministry of Environment, Lands and Parks, not acceded to by B.C.

Hydro, that the impacts of ramping on invertebrates be examined.

Again, little information is provided on the effectiveness of

these actions to ensure compliance with the law.

APPENDIX 3 165
3. The Submission states that the Bennett Dam and the G.M.

Shrum Station are associated with a decline in fish productivity,

rapid flow fluctuations causing strandings, elevated gas levels and

sedimentation. Canada responds that:

DFO was not involved at the time of construction in the 1960s. B.C.

Hydro has not requested Fisheries Act authorization for the project.

DFO’s Eastern BC Habitat Unit was formed in 1990, two decades

after operations were established at these facilities.

These statements do not appear germane to the issue of

whether Canada is failing to currently effectively enforce its

environmental laws. Canada’s Response does not appear to be

directed to the allegation of a present, continuing failure to effectively enforce its law. More information is therefore required.

Canada also asserts that the negative impacts of facilities at the

Bennett Dam are offset, at least in part, by the Peace/Williston

Compensation Program. It is unclear that compensation is of any

relevance to the effective enforcement of Canada’s environmental laws.

4. Another example is the allegation respecting the Keenleyside

Dam. The Submission states that complete shut down of flows in

April 1990 dewatered and stranded rainbow trout and kokanee fry

on the Norns Creek fan. Canada has responded that this event cannot be the subject of an Article 14 submission, since it occurred

before the NAAEC came into force. The Secretariat concurs, and

recommends that a factual record not be prepared in respect of this

specific allegation.

However, if a situation arising in the past continues to exist, it may

be the subject of an Article 14 submission. For example, if B.C.

Hydro operations continue to damage fish habitat, it makes no difference if those activities were commenced prior to the entry into

force of the NAAEC. As noted above, the Secretariat recognizes

that a present duty to enforce may originate from a situation which

continues to exist. If the construction of facilities in the past has

led to a state of affairs which “has not ceased to exist,” then the

facts surrounding this condition may be the subject of a factual

inquiry.

5. In asserting that Canada has failed to effectively enforce section 35(1) of the Fisheries Act, the Submitters point to the fact that

only two prosecutions have been undertaken against B.C. Hydro

166 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
since 1990. Canada, in its response, suggests that it undertakes a

variety of activities which, when taken together, constitute effective enforcement of its environmental law. The Secretariat is mindful of the varied principles and approaches that can be applied to a

definition or application of the term “effective enforcement.” For

example, under certain circumstances, other enforcement measures may be deemed more effective in securing compliance than

an exclusive reliance on prosecutions.In that regard, it is not clear

how Canada selects its enforcement responses to secure compliance with its environmental law.

In summary, Canada’s response does not disclose sufficient

factual information regarding the specific enforcement activity

undertaken by Canada in each of the alleged incidents and the

effectiveness of that activity in ensuring compliance with its

environmental law.

Please submit any information on or before 23 February 1999 to the

University of Victoria Institute for Dispute Resolution, care of Mr. Alex

Grzybowski, [Institute for Dispute Resolution, University of Victoria,

Begbie Building, P.O. Box 2400 STN CSC, Victoria, B.C. V8W 3H7,

grzybowski@tnet.net]. Information received before 20 January 1999 will

be passed on to the Expert Group that has been established to assist in

this process for their consideration in developing their findings. For

more information, contact Alex Grzybowski by phone at (250) 656-1317

or by email at grzybowski@tnet.net.

APPENDIX 3 167

APPENDIX 4

3 February 1999 Questions

Please answer the following questions as appropriate and provide

any further information and written materials that you believe should

be included in the factual record the Secretariat will prepare concerning

this submission. In terms of the relevant time frames, please consider

these questions in the context of Council Resolution 98-07, which

directed the Secretariat to “consider whether the Party concerned ‘is failing to effectively enforce its environmental law’ since the entry into force

of the NAAEC on 1 January 1994,” and indicated that “[I]n considering

such an alleged failure to effectively enforce, relevant facts that existed

prior to 1 January 1994, may be included in the factual record.”

1) Canada has identified a wide range of government responses. We

are interested in obtaining information concerning three types of

government policies relating to these responses:

a) policies that explain Canada’s overall plan for enforcement

and compliance concerning Fisheries Act section 35(1);

b) policies that discuss the criteria Canada uses in deciding

which government response to use in dealing with a particular violation of section 35(1); and

c) policies that explain the purpose of each government

response and how each is supposed to work.

With respect to prosecutions, for example, we are interested in policies, procedures or protocols that contain information as to the criteria Canada uses in deciding whether to investigate a possible

violation of Fisheries Act section 35(1), and/or to bring a prosecution for such a violation. We are interested, therefore, in such documents relating to, among other things:

(i) charge screening;

169
(ii) recommending charges; and

(iii) instituting investigations.

Please also provide any data or other information relating to prosecutions in British Columbia for Fisheries Act section 35(1) for each of

the years 1994-1998, inclusive, including, among other things, data

or other information relating to:

(i) the number of prosecutions;

(ii) the identity of the party prosecuted in each such prosecution;

(iii) the outcome of each such prosecution;

(iv) the level of government resources devoted to such prosecutions.

With respect to Fisheries Act section 35(2), we are interested in policies, procedures or protocols relating to, among other things:

(i) when the government requires a party to obtain an

authorization;

(ii) the criteria the government considers in deciding

whether to issue an authorization and in including conditions in an authorization; and

(iii) the process the government uses in evaluating whether

to issue an authorization.

2) Please provide information concerning how B.C. Hydro’s overall

system operations could be modified to prevent, reduce or compensate for harmful habitat impacts.

3) Please provide information concerning the efforts of other jurisdictions to minimize the harmful impacts of hydro operations on fish

habitat.

4) In addition to these general questions, the experts have questions

relating to six specific BC Hydro facilities. The experts determined

that it is not possible to review information in detail for each of the

facilities identified in the Submission. Using several criteria (our

interest in exploring the range of impacts and the range of enforce170 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ment responses and in covering the different parts of the BC Hydro

system), the experts have decided to focus on the following six

hydroelectric installations/ongoing operations:

• W.A.C. Bennett/Peace Canyon

• Keenleyside

• Shuswap Falls

• Cheakamus

• Walter Hardman

• John Hart

For each of the above installations including their reservoirs, dams,

generation facilities and downstream waterways, please provide

information regarding the following (please provide documented

and quantified information where available):

a) What harmful impacts on fish habitat have resulted from the

operation of these facilities?

b) When were these impacts discovered, what are their causes

and how are they quantified in terms of fish kill and lost fish

production?

c) How are impacts of on fish habitat identified, monitored and

measured? Please provide information concerning whether

these approaches to identification, monitoring and/or measurement are adequate/appropriate, alternative or additional approaches that could be used, and why these

alternative or additional approaches are not used.

d) Specifically, what action has been taken by Canada and/or

the B.C. government with respect to section 35(1) of the Fisheries Act for each of the harmful impacts on fish habitat?

Please include oral/written requests, orders, section 35(2)

authorizations, and prosecutions.

e) What action has been taken by B.C. Hydro in response to government actions in d), above and what action has B.C. Hydro

taken on its own initiative to mitigate or compensate the

impacts in a), above?

f) What effect have these actions taken had on the harmful

impacts on fish habitat in terms of

APPENDIX 4 171
(i) preventing harmful impacts from continuing, reducing

the severity of continuing impacts, and/or reducing the

likelihood of impacts continuing;

(ii) preventing harmful impacts from recurring in the

future, reducing the likelihood of recurrence, and/or

reducing the impact of any future incidents; and

(iii) repairing or otherwise redressing any adverse impact

to fish habitat caused by incidents?

g) Please provide information concerning any alternative strategies that would be more effective in minimizing adverse

impacts that B.C. Hydro is not implementing and concerning

why BC Hydro is not implementing these strategies.

h) What is the government’s (and what is B.C. Hydro’s) overall

strategy and objectives (with time frames) for bringing these

installations/ongoing operations into compliance with the

Fisheries Act and limiting or eliminating adverse impacts on

fish habitat, including for achieving the “no net loss” and

“overall net gain” provisions of the federal policy for management of fish habitat? What amounts are budgeted for

these activities over the next five to ten years for these specific

projects and for the B.C. Hydro system as a whole?

i) Please provide information as to when B.C. Hydro and/or

Canada have pursued 35(2) authorizations and as to why

35(2) authorizations were pursued in some cases and not others.

5) For each of the six hydroelectric installations/ongoing operations

please answer the following specific questions:

W.A.C. Bennett/Peace Canyon

Issue 1:

1) Reservoir drawdown affects fish productivity.

Canadian Response to Issue 1:

The project was built many years ago and B.C. Hydro has not

requested Fisheries Act authorization for the project. B.C. Hydro

172 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
has established a fish compensation fund that helps offset impacts

on fish in the reservoir.

Questions regarding Issue 1:

a) How much water is drawn down?

b) What are the harmful impacts on fish habitat of the drawdown?

c) What has been Canada’s response to those harmful impacts and to

what degree has Canada’s response led to a reduction in impacts?

d) What effect has B.C. Hydro’s fish compensation fund had on harmful impacts on fish habitat?

Issue 2:

2) Rapid flow fluctuations cause fish stranding below Peace Canyon

project.

Canadian Response to Issue 2:

Because of the steep walls of the Canyon stranding is a minimal

problem. One instance of stranding was noted and Canada

requested that remedial action be taken. B.C. Hydro and Peace

Compensation program responded that remediation would be of

little value until the upper reaches of the stream are restored.

Strandings below Peace Canyon are a concern and B.C. Hydro has

voluntarily implemented a minimum 10,000 cfs flow to protect fish

habitat at a cost of $2 million. Ramping rates to minimize effects on

fish have been determined but will not be implemented during peaking power generation.

Questions regarding Issue 2:

a) What are the time lines for implementation of the ramping rates

during normal operations?

b) What information did Canada obtain to verify that remediation of

stranding would be of little value below Bennett Dam?

c) To what extent are dewatering problems eliminated or reduced

below Peace Canyon at a minimum flow of 10,000 cfs?

APPENDIX 4 173
d) There appear to have been limited enforcement actions undertaken in relation to this facility. Please tell us why that is so. To

what extent have issues of cost or other factors played a role in

enforcement decisions?

e) What authorizations has Canada provided to B.C. Hydro with

respect to peaking flow fluctuations?

Issue 3:

3) Total Gas Pressure is a problem with this facility.

Canadian Response to Issue 3:

Spills suspected to cause serious TGP problems are intermittent.

With input from Canada, B.C. Hydro has studied a spill in 1996 but

results are not yet available. Under non-spill conditions TGP levels

are likely low.

Questions regarding Issue 3:

a) Please provide information as to Canada’s strategy (including time

lines) for understanding the causes of serious, intermittent TGP

problems and for addressing these problems.

b) What information does Canada plan to obtain to confirm the

causes of TGP and that TGP is not a problem under normal operation of the facility and what are the time lines for obtaining this

information?

c) Should it prove that TGP is a chronic problem, what would be

Canada’s response and what would be the time lines of that

response?

Issue 4:

4) The dam causes sediment problems.

Canadian Response to Issue 4:

Canada is unaware of any sediment problems except for sediment

inputs from two tributaries to Dinosaur Lake during storm events.

Sediment problems in Williston Lake are mitigated by activities of

the Peace/Williston program.

174 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Questions regarding Issue 4:

a) Is Canada suggesting that the sediment problems below Bennett

Dam are all natural events?

b) What information does Canada have that sediment problems in

Williston Lake are mitigated?

c) What plans does Canada have to determine whether there are erosion problems impacting fish in Williston reservoir and the effectiveness of any remediation?

Issue 5:

5) Lack of flushing flows has led to abandonment of side channels.

Canadian Response to Issue 5:

The potential effects of lack of flushing flows have been described by

Sigma Engineering and benefits of flushing flows may be determined by long term studies being undertaken by M. Church at

UBC.

Questions regarding Issue 5:

a) Does Canada have a policy or an opinion regarding flushing flows

in maintaining the quality of fish habitat?

b) What plans does Canada have to study, monitor and ensure that

habitat degradation due to lack of flushing flows does not significantly impair fish production in this system?

Issue 6:

6) The project has changed temperatures downstream.

Canadian Response to Issue 6:

The effects of temperature changes are complex and poorly understood. Mitigation would require changes to dam intake structures.

Questions regarding Issue 6:

a) What information does Canada have with regard to temperature

changes? What are Canada’s plans (including time lines) for colAPPENDIX 4 175
lecting more information regarding temperature changes and for

addressing harmful impacts that such changes have on fish habitat?

Keenleyside Dam (Norns Creek fan)

Issue 1:

1) Operation of the Keenleyside Dam dewaters whitefish habitat and

causes mortality.

Canadian Responses regarding Issue 1:

During the critical December to April period, Canada representatives closely monitor and require assessment of flows on downstream fish and their ova.

As evidence that these efforts [discussions in the fish information

group] are paying off; the flow regime during the 1996-1997

spawning season is considered to be the best yet for the maintenance

of mountain whitefish spawning habitat.

Questions regarding Issue 1:

a) What is the nature of the monitoring and assessment?

b) Despite the monitoring, etc., are there still instances of egg mortality caused by Keenleyside operation? If so, what is their frequency

and their magnitude?

c) What does “best yet” mean in relation to expected survival and

maintenance of mountain whitefish spawning habitat?

d) What evidence is there that survivals have improved since the creation of the Eastern B.C. unit and the commencement of the Fish

Information Group and to what degree have they improved?

Issue 2:

2) Complete shut down in April 1990 dewatered and stranded rainbow trout and kokanee fry on the downstream Norns Creek fan.

176 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Canadian Responses regarding Issue 2:

The current working agreement between Canada and B.C. Hydro is

to maintain or increase flows during this period [April to June]

to ensure adequate rainbow trout spawning habitat and prevent

dewatering of incubating eggs. Any eggs deposited prior to April

which are in danger of dewatering are salvaged. . . .

On March 28, 1994, Canada granted an authorization . . . for a pilot

study reconturing the Norns Creek Fan. Fish utilized the pilot area

and eggs were successfully incubated.

Questions regarding Issue 2:

a) Are there still instances of egg mortality caused by Keenleyside

operation? If so, what is their frequency and their magnitude?

b) What factual evidence is there that egg mortality has decreased

since Canada and B.C. Hydro formed their working agreement?

c) What plans does Canada have to proceed with further modification to Norns Creek fan?

d) How does the reconstructed portion of the fan compare with other

locations in terms of density of fish spawning and survival of eggs?

General questions regarding Keenleyside:

a) To what degree (be specific) is the potential fish production of the

Columbia downstream from Keenleyside Dam reduced by the

operating regime of the dam?

b) What strategy exists for achieving the “no net loss” and “overall

net gain” provisions of the federal policy for management of fish

habitat in the Columbia downstream from Keenleyside Dam?

Shuswap Falls

Issue 1:

1) Low winter flows dewater spawning areas and have negative

effects on incubating eggs.

APPENDIX 4 177
Canadian Response to Issue 1:

A rule curve was developed in 1993 that would protect fish spawning downstream. B.C. Hydro indicated in 1994 that they did not

want to use the rule curve and suggested alternative flows. Canada

has responded verbally that B.C. Hydro flows are not acceptable and

Canada wishes to continue with the rule curve.

Questions regarding Issue 1:

a) What rules presently govern winter releases from the Shuswap

Falls project?

b) If the rule curve developed in 1993 is still the means by which flow

decisions are made, has any further analysis of the effectiveness of

the flow regimes based on this curve been undertaken beyond that

conducted by Triton in 1993-94?

c) How effective was this enforcement action (developing a rule

curve) in ensuring the termination of low water flows with negative impacts on fish habitat and therefore on incubating eggs?

d) Given the critical state of interior coho stocks, what information/measures are in place/planned to determine and, if necessary, remediate any impacts of Shuswap Falls on coho?

Issue 2:

2) Rapid flow fluctuations negatively impact fish downstream.

Canadian Response to Issue 2:

Canada has specified acceptable ramping rates for flow changes and

describes a range of problems in ensuring that these are implemented including technical problems with recently installed

equipment and communication problems regarding B.C. Hydro

activities that affect discharge. A study is also underway to determine the effectiveness of the ramping rates that Canada has specified.

Questions regarding Issue 2:

a) Given the problems referred to in the Canadian response, to what

degree have the ramping rates specified by Canada been met by

B.C. Hydro?

178 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
b) How effective was this Canada action (specifying ramping rates)

in terms of ensuring that rapid flow fluctuations do not negatively

impact fish habitat?

c) What steps have been taken to address some of the technical problems, particularly those with the Howell Bunger Valve?

Issue 3:

3) Configuration of the dam has led to increased sediment levels.

Canadian Response to Issue 3:

Canada has specified the conditions governing removal of sediment

upstream of Wilsey dam.

Questions regarding Issue 3:

a) Have there been instances of sediment discharge unrelated to

removal operations? If so, how frequent, when, and what

amounts?

b) Please describe the steps taken to ensure that sediment discharge is

not harmful to fish?

Issue 4:

4) Reservoir fluctuations affect benthic productivity and reduce

access to Sugar Lake tributaries.

Canadian Response to Issue 4:

Impacts of reservoir fluctuations on invertebrates have not been

examined. Effects of reservoir drawdown on resident fishes are

uncertain.

Questions regarding Issue 4:

a) What plans does Canada have to investigate and address these

issues and what are Canada’s time lines for taking such action?

APPENDIX 4 179
Cheakamus

Issue:

1) Downstream fish populations are negatively impacted by insufficient flow and rapidly fluctuating flows.

Canadian Response to Issue:

On May 2, 1997, Canada issued a flow order to B.C. Hydro with

respect to Daisy Lake Dam for the purpose of ensuring adequate

flow to protect fish and fish habitat. B.C. Hydro has applied for judicial review of this order.

Questions regarding Issue:

a) What are the impacts of insufficient flow and rapidly fluctuating

flows?

b) What does the flow order require?

c) What has been the impact of the flow order in terms of ensuring

adequate flow to protect fish and fish habitat?

d) Please describe any other actions the government has taken to

address these problems.

e) Considering that problems with fish habitat due to operation of the

Daisy Lake dam have been a long standing issue in the Cheakamus

River, please explain why Canada issued its flow order to protect

fish and fish habitat in 1997.

f) What actions other than flow remediation has Canada undertaken

with respect to the Cheakamus to satisfy the no net loss/net gain

provisions of the federal policy on fish habitat?

Walter Hardman (Cranberry Creek)

Issue:

1) Dewatering of the creek in 1996 killed and stranded rainbow trout

over a 10 km section. Dewatering of the creek is within the terms of

B.C. Hydro water license.

180 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Canadian Response to Issue:

Walter Hardman has been first priority (with 9 other facilities) for

review in the Water Use Planning initiative. Canada was closely

involved in the development of interim operating orders which will

provide operational benefits to fish during the development of the

Water Use Plan and will require release of appropriate flows in the

lower Cranberry Creek for the support of fish.

Questions regarding Issue:

a) Were there any specific enforcement actions taken in response to

the incident at Cranberry Creek and what was the outcome of

those actions?

b) What minimum flows are required under the interim operating

orders?

c) How were these flows determined (in terms of their anticipated

benefits for fish and fish habitat)?

d) When will the interim flows be implemented?

e) What monitoring will be done to determine the effectiveness of the

interim flow order, once it is implemented?

f) What are the time lines for completion of the WUP? How will compliance with the conditions of the WUP and the impacts of that

compliance be monitored and enforced?

g) How are the no net loss/net gain provisions of the federal policy on

fish habitat to be addressed under the WUP process?

John Hart Project

Issues:

1) Rapid flow fluctuations and inadequate instream flows have

adversely affected fish habitat

2) Spillway releases can attract fish into the canyon that then become

trapped.

APPENDIX 4 181
3) Spillway releases can cause TGP problems

Canadian Response to Issues:

Studies were undertaken. A side channel was installed below the

powerhouse and additional spawning gravel was placed in the Elk

Fall side channel.

Questions regarding Issues:

a) To what extent have these measures mitigated problems caused by

John Hart? How was this monitored and if the problems were not

mitigated, what are the plans for follow up?

b) Since problems with flow fluctuations have been a long-standing

issue with this project, why have measures been taken only

recently to address the problems?

c) Does Canada believe that there are problems with fish trapping in

the canyon and with TGP?

d) If trapping occurs and TGP problems occur, what enforcement

does Canada plan to address these issues?

182 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
APPENDIX 5

21 April 1999 Questions

April 21, 1999

Dr. Jon O’Riordan

Assistant Deputy Minister

Environment and Lands Regions Division

Ministry of Environment, Lands and Parks

P.O. Box 9339 Stn. Prov. Gov.

Victoria, B.C.

V8W 9M1

Dear Dr. O’Riordan:

Thank you for providing the Expert Group with your Submission in the

Factual Record Process for SEM-97-001. The experts have a few follow-up questions concerning the information you provided. If answers

to these questions do not exist, or you are unable to provide the information for some reason, please indicate this in your response.

No Net Loss and Scientific Evidence

In the March 1999 DFO Habitat and Enhancement Branch Submission

(DFO Submission), achievement of “No Net Loss” is equated with

“effective enforcement” of the Fisheries Act section 35(1), and the Submission concludes that the situation for fish habitat in relation to Hydro

facilities is improving and therefore effective enforcement is being

achieved. To follow up on this definition and assertion:

1. What is the process or model utilized to calculate or determine No

Net Loss in relation to the six facilities that the experts have identified to be of interest?

183
a) What year is utilized as the baseline year in the No Net Loss

model from which habitat losses and gains are subtracted or

added?

b) What kind of monitoring is undertaken to determine habitat

losses and gains for No Net Loss calculations?

c) How is scientific uncertainty dealt with in the No Net Loss

calculations?

d) Please provide a detailed sample No Net Loss calculation for

a facility, preferably one of the six facilities of interest, for

which No Net Loss has been calculated.

2. What evidence does DFO have to support its “unqualified yes”

(DFO Submission, p. 21) that the situation with respect to fish habitat in relation to B.C. Hydro facilities is improving? For example, in

the case of the Puntledge Project what is the scientific evidence that

the measures taken are good for smolts?

Enforcement of the Fisheries Act

3. For each year, 1994-1998, inclusive, how much human (FTEs) and

financial resources (budget allocation) have DFO and provincial

agencies dedicated to enforcement of section 35(1) of the Fisheries

Act in British Columbia? To the extent the information is available,

please provide a breakdown of the allocation of these resources

by type of activity—e.g., monitoring, investigation, and enforcement.

4. For the same time period, please provide any compliance and

enforcement data for British Columbia not yet submitted relating

to Fisheries Act section 35(1), such as data concerning the level of

enforcement activity (e.g., numbers of investigations and inspections), and the outcomes of such activity. With respect to outcomes,

for example, the DFO 1996-1997 Annual Report to Parliament provides information on convictions for fiscal years 1994/95, 1995/96

and 1996/97. Please provide similar information for fiscal years

1997/98 and 1998/99 if it is available. Please also provide information concerning any sanctions imposed for violations of section

35(1) in British Columbia (e.g., the number and monetary value of

fines imposed for such violations).

184 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Water Use Planning

5. In the DFO Submission, DFO indicated that it has “tentatively

identified baseline, improved and restored scenarios for most

facilities” and that the baseline condition is “in full compliance

with the Fisheries Act.” Please provide each of those scenarios for

the six facilities of interest and outline how it is determined that the

baseline condition is in full compliance with the Fisheries Act.

6. Please provide any information available, in addition to the information already provided, with regard to the WUP schedule, the

amount of funding and resources to be dedicated to WUP by each

agency involved for the next five years, and the priority impacts to

be addressed at the facilities, particularly in relation to the six facilities of interest.

7. Please provide any factual information, in addition to the information provided in the March 1999 Water Use Plan Management

Committee Submission, regarding the benefits to habitat that have

resulted from the WUP process to date including the interim

orders, Campbell River Interim Flow Management Strategy and

Alouette Water Use Plan.

8. Apart from the letter from Mike Farnworth, Minister of Employment and Investment, to Michael Costello of B.C. Hydro dated

November 4, 1998, directing B.C. Hydro to participate in the

review of its water licenses, what other form of commitment (legislative, regulatory or other) is there to ensure that B.C. Hydro will

participate in the WUP? Could B.C. Hydro withdraw from the

WUP, and if it did what would happen?

9. Initiation of a WUP appears to be at the discretion of the Water

Comptroller. Is this correct? What are the guarantees that WUPs

will be completed at all of the major hydroelectric sites in B.C.? Is

there any form of legislative or regulatory commitment to the federal government that WUPs will be completed at all of the major

hydroelectric sites in B.C.?

APPENDIX 5 185
Thank you in advance for responding to the questions outlined above.

Please provide your response by May 4, 1999. We will conduct any necessary additional follow-up with each stakeholder individually.

Yours sincerely,

(original signed)

David L. Markell

Head, SEM Unit

c.c. Randy Christensen

Barrister and Solicitor, Sierra Legal Defence Fund

Keith Ogilvie

Special Advisor, International Relations, Intergovernmental

Relations

Hugh Smith

Manager, Strategic Fisheries, B.C. Hydro Resource

Management

Andy Bowcott

Manager, North American Global Strategies, Environment

Canada

186 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
APPENDIX 6

Memorandum

DATE: January 19, 1999

A / PARA / TO: Members of the Joint Public

Advisory Committee

CC: Alternate Representatives

Manon Pepin

DE / FROM: Janine Ferretti, Interim Executive Director

OBJET / ASUNTO /RE: Joint Public Advisory Committee (JPAC)

Involvement in Preparation of Draft

Factual Record for SEM-97-001

As you are aware, on June 24, 1998, the Council of the Commission for

Environmental Cooperation instructed the Secretariat to prepare a Factual Record in connection with Submission 97-001 (Council Resolution

98-07). In preparing the Factual Record, the Secretariat may consider,

inter alia, information submitted by the Joint Public Advisory Committee (JPAC), in accordance with Article 15(4) of the North American

Agreement on Environmental Cooperation (Agreement). The purpose

of this memorandum is to request that any information which might

prove relevant for the preparation of the Factual Record be submitted by

February 23, 1999 to David Markell, Head, Submissions on Enforcement

Matters Unit, CEC, 393, rue St-Jacques Ouest, Bureau 200, Montreal

(Quebec), Canada H2Y 1N9.

Thank you for your assistance in this matter.

187

APPENDIX 7

189

APPENDIX 8

Expert Group Report

TABLE OF CONTENTS

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

1.0 Background on BC Hydro Operations and The Types of

Harm Such Operations May Cause to Fish Habitat . . . . . . 198

1.1 Historical. . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

1.2 The BC Hydro System Today . . . . . . . . . . . . . . . . 199

1.3 Overview of BC Hydro System Operations . . . . . . . . 199

1.4 Impacts of Hydroelectric Operations On Fish Habitat . . 201

2.0 The Expert Group’s Charge of Assisting the Secretariat

to Develop and Consider Information Concerning Whether

Canada is “Failing to Effectively Enforce” Fisheries Act

Section 35(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

3.0 The Concept of “No Net Loss” and Its Role in Canada’s

General Approach to Enforcement . . . . . . . . . . . . . . . 208

4.0 Canada’s Policy Context—A Review of Canada’s

Enforcement Responses Concerning the Statutory

Prohibition Against Harming Fish Habitat . . . . . . . . . . . 214

4.1 Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . 215

4.2 Environmental Assessments of New Projects &

Retrofits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

4.3 Emergency Response Procedures . . . . . . . . . . . . . . 220

191
4.4 Regional and Technical Committees . . . . . . . . . . . . 221

4.5 Water Use Planning (WUP) . . . . . . . . . . . . . . . . . 223

4.6 Water Quality Guidelines . . . . . . . . . . . . . . . . . . 228

5.0 Review of Information for Six Facilities . . . . . . . . . . . . . 229

5.1 WAC Bennett/Peace Canyon dams and generating

stations on the Peace River. . . . . . . . . . . . . . . . . . 230

5.1.1 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 230

5.1.2 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 232

5.1.3 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 235

5.1.4 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 237

5.1.5 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 239

5.1.6 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 241

5.2 Keenleyside Dam (Norns Creek fan) . . . . . . . . . . . . 244

5.2.1 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 244

5.3 Shuswap Falls . . . . . . . . . . . . . . . . . . . . . . . . . 248

5.3.1 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 248

5.3.2 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 251

5.3.3 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 253

5.3.4 Allegation. . . . . . . . . . . . . . . . . . . . . . . . 255

5.4 Cheakamus . . . . . . . . . . . . . . . . . . . . . . . . . . 257

5.4.1 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 257

5.5 Walter Hardman (Cranberry Creek) . . . . . . . . . . . . 260

192 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
5.5.1 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 260

5.6 John Hart Project . . . . . . . . . . . . . . . . . . . . . . . 262

5.6.1 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 263

5.6.2 Allegation . . . . . . . . . . . . . . . . . . . . . . . . 265

6.0 Overall Expert Group Comments Concerning Canada’s

Approach to Enforcement . . . . . . . . . . . . . . . . . . . . 268

6.1 No Net Loss As A Basis For Effective Enforcement . . . . 268

6.2 Prioritization of Habitat Issues for Enforcement . . . . . 270

6.3 Data Needs for Effective Enforcement . . . . . . . . . . . 271

6.4 Tools For Achieving Compliance . . . . . . . . . . . . . . 273

6.5 WUP As A Means To Address Habitat Issues . . . . . . . 274

APPENDIX 8 193

CEC SUBMISSION SEM 97-001

Expert Group Report

Appendix 1: 3 February1999 Questions

Appendix 2: Map of BC Hydro hydroelectric facilities

Appendix 3: 21 April 1999 Questions

Appendix 4: 22 January 1999 Letter to British Columbia

Introduction

1. This Expert Report concerns the Commission for Environmental

Cooperation (CEC) Submission SEM-97-001. This submission

involves assertions that Canada is failing to effectively enforce

its environmental laws, particularly Fisheries Act section 35(1),

with respect to BC Hydro hydroelectric operations.

2. The submission was filed on 2 April 1997. Canada filed its response

in July 1997. The Secretariat notified the CEC Council on 27 April

1998 that a factual record should be developed concerning the

submission. On 24 June 1998 the Council unanimously instructed

the Secretariat to develop a factual record.

3. The Council Resolution 98-07 gave the following specific direction

to the Secretariat:

TO DIRECT the Secretariat, in developing the factual record, to

consider whether the Party concerned “is failing to effectively

enforce its environmental law” since the entry into force of the

NAAEC on 1 January 1994. In considering such an alleged failure

to effectively enforce, relevant facts that existed prior to 1 January

1994 may be included in the factual record;

TO FURTHER DIRECT the Secretariat, in developing the factual

record, not to consider issues that are within the scope of the pend195
ing judicial proceeding before the British Columbia Court of

Appeal in R. v. British Columbia Hydro and Power Authority,

specifically those issues relating to the BC Hydro facilities in

the Bridge River hydroelectric system, comprised of the Lajoie,

Terzaghi, and Seton dams and their respective reservoirs.

4. To assist with the preparation of the Factual Record, the Secretariat

convened a small committee of experts in fisheries, law and dam

operation. This Expert Group’s charge was to assist the Secretariat

in performing its responsibilities in implementing Council Resolution 98-07. The Expert Group has prepared this report as part of its

effort to fulfill this charge.

5. The Report contains a brief introduction and then consists of six

sections:

a) Background on BC Hydro operations and the types of harm

hydroelectric operations may cause to fish habitat.

b) The Expert Group’s charge of assisting the Secretariat to

develop and consider information concerning whether

Canada is “failing to effectively enforce” Fisheries Act section

35(1).

c) The concept of “no net loss” and its role in Canada’ s general

approach to enforcement.

d) Canada’s “policy context”—a review of Canada’s enforcement responses concerning the statutory prohibition against

harming fish habitat.

e) A review of six of BC Hydro’s facilities that provides information concerning harm to fish habitat caused by these facilities, Canada’s efforts to reduce or eliminate such harm, and

the effectiveness of such efforts.

f) The Expert Group’s overall comments concerning Canada’s

approaches to enforcement with respect to the section 35(1)

prohibition against harming fish habitat.

6. Each member of the Expert Group has substantive expertise relevant to this submission.

196 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
7. William Best is an expert in hydroelectric operations. He is a graduate of the University of British Columbia Faculty of Applied Science in Electrical Engineering and a member of the Association of

Professional Engineers of British Columbia. He has served as a

member of the Executive Committee of the Canadian Electrical

Association and as a Director of the Canadian Institute of Energy

and of the Northwest Public Power Association. Mr. Best also has

been a Commissioner of the BC Utilities Commission. Mr. Best

served for more than 30 years as an official with BC Hydro, where

he held a series of high-ranking positions. He was a senior BC

Hydro executive in the following positions: Vice President, Electrical Operations (July 1975—1981), Vice President, Corporate

(March 1981—April 1984), Executive Vice President, Business

Operations (April 1984—October 1985), Senior Vice President,

System Development and Research (October 1985—December

1986), Vice President, System Planning (December 1986—December 1987), Vice President, Customer Services (January 1988—April

1988), and Vice President (April 1988—September 1988).

8. David Cohen is an expert in regulatory and compliance matters.

Dean Cohen obtained his Bachelor of Science degree at McGill University, his LL.B. at the University of Toronto, and his LL.M. at Yale

Law School. He served as Dean of the University of Victoria School

of Law from July 1994 until May 1999, at which point he resigned to

become the Dean of Pace University’s School of Law. Dean Cohen

teaches in the areas of law and regulatory policy and has written

extensively in a range of areas including environmental policy and

regulation.

9. Michael Healey is an expert in fish habitat-related issues. Professor

Healey received Bachelors of Science (BSC) and Masters of Science

(MSC) degrees in Zoology from the University of British Columbia

in 1964 and 1966 and his Ph.D. in natural history from Aberdeen,

Scotland in 1969. Professor Healey is Professor in the Institute for

Resources and Environment, the Fisheries Centre and the Department of Earth and Ocean Sciences, UBC. From 1990 to 1995 he was

Director of the Westwater Research Centre at UBC. Prior to 1990,

Professor Healey was a senior research scientist with the Department of Fisheries and Oceans. Professor Healey has 25 years of

experience as a government scientist and academic in research and

analysis of fish populations and fisheries-related scientific issues.

He has served as a consultant to government and industry in

APPENDIX 8 197
Canada and the United States on the management of fish and fish

habitat.

10. The Expert Group initiated its work in January 1999. The Secretariat offered each of four key stakeholders identified for this submission, notably the Submitters, Canada, the Province of British

Columbia, and BC Hydro, the opportunity to present information

to the Expert Group in writing and orally. Other interested parties

were offered the opportunity to provide information as well. The

Expert Group held meetings between January and March 1999

with one or more of these four key stakeholders. The Expert Group

developed a set of questions for the key stakeholders (on 3 February 1999), and it issued a set of follow-up questions (21 April 1999).

The Expert Group has reviewed the information provided by the

key stakeholders and other interested parties and offers the following report.

1.0 Background on BC Hydro Operations and the Types of Harm

Such Operations May Cause to Fish Habitat

1.1 Historical

11. Development of water resources in British Columbia dates back to

the mid 1800s when several small hydro plants were constructed

on southern Vancouver Island. In the late 1890s West Kootenay

Power Company began construction of its system of plants on the

Kootenay River in the interior of the province. During the early

1900s the BC Electric Railway Company undertook hydroelectric

development on several tributaries to the Fraser River in BC’s

lower mainland and beginning in 1927 it started its Bridge River

Development.

12. In the 1960s the BC provincial government, through the newly

formed Provincial Crown Corporation BC Hydro and Power

Authority (BC Hydro), undertook the massive hydroelectric

development of the Peace and Columbia Rivers. The successful

negotiation of the Columbia River Treaty between Canada and the

United States was a key element of this development. By 1972, ten

years from its inception, BC Hydro had increased its power supply

by more than 125 percent. Today more than 80 percent of BC’s electricity is produced by the hydroelectric facilities on the Peace and

Columbia Rivers.

198 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1.2 The BC Hydro System Today

13. The BC Hydro system today serves more than 1.5 million residential, commercial and industrial customers in areas that contain

more than 94 percent of the province’s population. The utility produces 43,000 million to 54,000 million kWh annually depending on

precipitation. Approximately 90 percent of the total installed BC

Hydro generating capacity are hydroelectric. The hydroelectric

component comprises 61 dams at 43 locations. There are 34 hydroelectric generating facilities (See map Appendix 2). As noted in

Section 1.1, above, the major hydro projects on the Peace and

Columbia rivers account for more than 80 percent of BC Hydro’s

electricity generation.

14. In addition to providing electricity to British Columbia consumers

BC Hydro participates in electricity trade with Alberta and the

western United States through high voltage tie lines. BC Hydro

also operates water storage facilities on the Columbia River system

in Canada in accordance with the Columbia River Treaty provisions.

1.3 Overview of BC Hydro System Operations

15. The primary objective of BC Hydro operations is to maintain an

adequate and reliable supply of electricity to its British Columbia

consumers and to meet its supply obligations to export customers

outside the province. A further, significant obligation is to operate

its water storage facilities on the Columbia River in accordance

with agreements reached under the Columbia River Treaty. A secondary objective is to market surplus electricity obtained through

fortuitous water conditions and prudent reservoir management at

the best obtainable price, normally in the export market.

16. Since the BC Hydro generation mix is predominantly hydroelectric the amount of water that can be captured, stored and released

through its turbine generators determines the amount of electricity

that can be produced. While water can be (and is) stored, electricity

cannot be, so at any given time the amount being generated must

equal the amount being consumed. The amount of water flowing

into the reservoir systems is dependent on the precipitation in the

related watershed over the year. The amount of water that can be

stored in the reservoirs, routed through the generator turbines (as

opposed to spilling past the turbines), and converted into electricAPPENDIX 8 199
ity will depend on the size of the reservoir storage and how that

storage is managed throughout the year. Good reservoir management from a power production perspective means accurate measurement of the water in the watershed (snow depths and water

content of the snow) and good predictions about what volumes of

water will flow into the reservoir during specific time intervals.

The objective from a power production perspective is to have the

reservoirs drawn down in the spring to such a level that the spring

melt will just fill the reservoirs. If the inflows are greater than

expected water may have to be spilled. If the reservoir does not

refill, the hydraulic head will be less than optimal for efficient generation and the facility output will be reduced. These reservoir

decisions are made using historical stream flow, snow course and

meteorological data.

17. With a large, electrically integrated system like BC Hydro’s the

operators are able to offset poor water conditions at one hydroelectric site by using favorable water conditions at another site. For

example, should the reservoir at one site be lower than optimal the

operators can increase generation from other hydro sites where

water conditions are better than normal. Similarly, available thermal or electricity imports can be utilized. The BC Hydro reservoirs

are located on different river systems widely dispersed throughout a province with normally diverse weather conditions. This

diversity of water conditions at BC Hydro reservoirs is a significant strength.

18. A factor adding to the flexibility and complexity of the BC Hydro

system is the storage and controlled release of water into the Canadian section of the Columbia River under the terms and conditions

of the Columbia River Treaty. Effectively, BC Hydro and the

Bonneville Power Administration, a US federal agency, are

hydraulically and electrically linked through the Columbia River

System and the integrated electrical transmission network. Reservoir levels and flow rates on the Columbia River, and other river

systems in British Columbia, are affected by the Columbia River

Treaty operations.

19. The BC Hydro reservoirs are very large, particularly the Williston

and Kinbasket reservoirs on the Peace and Columbia rivers.

Smaller reservoirs cycle annually, i.e., they are drawn down to a

minimum level and refilled in one, twelve-month period. The large

Peace and Columbia reservoirs cycle over a three to four year

200 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
period. It would take three to four years of poor water conditions to

draw these reservoirs down to their minimum design levels. But it

would also take three to four years of good water conditions to

refill them. The longer cycling period means less susceptibility to

short term low stream flow conditions and greater overall flexibility in generation.

1.4 Impacts of Hydroelectric Operations On Fish Habitat

20. The original construction and subsequent operations of the components of a hydroelectric system—dams, storage reservoirs, river

diversions, spillways and hydroelectric turbines and generators—have significant impacts on the environment and on humans

and other creatures that depend on a healthy environment. This

factual record focuses specifically on the impact of BC Hydro

hydroelectric facilities and operations on fish and fish habitat. We

note that these facilities and other operations have other impacts as

well, including impacts on transportation, agriculture, industry,

recreation, and consumption, among others.

21. The range of impacts of hydroelectric facilities and operations on

fish and fish habitat include the following:

• Blockage of upstream and downstream movements of resident

and migratory fish. Stream fishes often undertake significant

migrations upstream and downstream for the purposes of

breeding or feeding. Construction of a dam usually completely

blocks these normal movements. Although some species and

populations are able to adjust to the new situation, others cannot and this may significantly reduce the productive potential

of the river.

• Entrainment of fish into penstocks, turbines and spillways.

(Entrainment refers to the process by which small fish are

sucked into turbines and spillways by the flow of water.)

Entrainment can kill or injure fish and displace them into

unsuitable habitats.

• High concentrations of dissolved gas in water created by turbines and spillways and by algal blooms in reservoirs. Gas saturation above 100 percent can cause gas bubble disease in fish.

Below dams, elevated Total Gas Pressure (TGP) is caused by

water plunging off spillways carrying air bubbles deep into the

pool below the spillway. The bubbles deep in the pool dissolve

APPENDIX 8 201
in the water because of the greater pressure at depth, increasing

the concentration of gas in the water to more than 100 percent

saturation. A similar phenomenon can occur in lakes when

there is an intense bloom of algae producing lots of oxygen,

which raises the gas pressure in the surface waters of the lake

above 100 percent saturation. High TGP can cause death or

injury of fish because, when they are in water with elevated

TGP, their body fluids become supersaturated with gas so that

when they move to water with lower TGP the excess gas they

have absorbed forms bubbles in their blood and other tissues

(like a diver getting the “bends”). It is important to note that the

effects of high TGP are uncertain in nature.

• Toxicity created by decomposition of organic material in reservoirs, e.g., low dissolved oxygen, methylation of mercury.

• Excessive water turbidity created by sloughing reservoir and

river banks, which reduces visibility for fish looking for food,

reduces the light penetration into lake and river waters so that

plant growth is inhibited, and can smother spawning beds suffocating eggs and fry in the bottom gravels.

• Loss of spawning and nursery areas beneath reservoirs and by

scouring of gravel downstream of facilities. Reservoirs often

flood historic spawning and nursery habitats for stream dwelling fishes. Also the reservoir blocks downstream movement of

gravel from above the dam so that when bottom gravel are

scoured out downstream they are not replaced and spawning

habitat is lost.

• Insufficient water releases or large fluctuations in water releases

so that fish and ova are exposed and destroyed. Operation of

dams typically changes the daily and seasonal hydrograph

downstream. Usually the high flows are reduced because these

are used to fill the reservoir so that floodplain habitats that

would normally be flooded during freshet remain dry. These

marginal habitats are often important spawning and nursery

habitats for some fishes. Flow below hydro dams can also be

highly variable on an hourly basis as demand for electricity

changes throughout the day. These rapid short-term fluctuations in water flow can wash fish out of reaches of the river or

leave them stranded in marginal pools when the water drops

rapidly. The seasonal activities of fishes and other aquatic

organisms and their movements are usually adapted to the

202 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
natural seasonal changes in flow of the river so that the changes

brought about by dam operation can disrupt natural life processes in fishes and other organisms.

• Changes to water temperature affecting fish, ova incubation

and the ability of rivers and reservoirs to sustain plant and animal life upon which fish depend for food. Temperature changes

impact fish in several ways. Discharge from reservoirs is often

warmer in winter than the natural river. In the winter, higher

temperatures result in greater metabolic rates in fish, which

means that they need more food. Higher winter temperatures

also mean that eggs develop too fast. In the summer, reservoir

discharges can be either warmer or cooler than the natural river,

again having implications for metabolism, growth, food production and survival. The implications of temperature are complex. Some temperature impacts are beneficial and some are

harmful. For example the surface waters of a reservoir can be

impoverished in summer due to temperature stratification and

the trapping of nutrients in deep water. On the other hand, a reservoir may be more productive than the stream it replaced

because of warmer temperatures, being more open to sunlight,

and the fact that nutrients are trapped in the reservoir to be recycled year after year.

• Trapping of nutrients in reservoirs so that downstream productivity is reduced. Although a reservoir may be more productive

than the stream it replaced, the river downstream may be

reduced in productivity because the reservoir traps nutrients

that would normally have flowed downstream.

• Trapping of sediments in reservoirs so that downstream river

channels are deprived of sediment and become degraded. This

was mentioned above with respect to spawning gravels but, in

fact, the whole structure of the river downstream from a dam

can be changed by the trapping of sediments in the reservoir

(See further elaboration below). Changes in the sediment

dynamics of the river coupled with changes in the seasonal flow

regimes below dams mean that the two factors most responsible

for the character of the river (sediments and flow) are dramatically altered by the dam.

• Poor littoral productivity in reservoirs due to large seasonal

drawdown and unnatural cycles of drawdown. The littoral

zone of a reservoir is the marginal area of the reservoir down to

APPENDIX 8 203
the depth that light can stimulate plant growth. When this zone

remains wetted it is the most productive zone of the reservoir

because of good growing conditions for plants and the availability of nutrients from the bottom. When the reservoir level is varied dramatically, as it often is in hydropower reservoirs, this

zone is alternately wetted and dried out so that it ceases to be

productive. As the reservoir is lowered, the mud on the bottom

is exposed and can be stirred up by waves making the

near-shore waters very turbid. This further reduces productivity by reducing the amount of light that can penetrate into the

water. Drawing down the reservoir can also expose eggs and

cause them to die.

• Blockage of fish migration into and out of reservoir tributaries

due to draw down and debris and sediment accumulation at

tributary mouths. Drawing down the reservoir can also make it

difficult or impossible for fish to get into tributaries because the

tributary does not have a defined channel across the exposed

bottom sediments.

• Armoring, simplification and freezing of river channel morphology downstream of dams due to loss of high discharge

(“flushing flows”) events. The natural variations in flow of an

undammed river produces a more sinuous main channel with

more side channels which are important for nursery and spawning habitat. Dams reduce the dominant flow. This results in a

straighter and simpler channel, which is poorer habitat for fish.

The lack of annual high or “flushing flows” can result in armoring of the bottom substrates creating a pavement-like bottom

that is not good for spawning or food production.

• Loss of side channel and off-channel habitats due to reduced

flows and/or altered hydrographs. The flow pattern below

dams is often much less variable seasonally than in the natural

stream so that seasonal channels on the floodplain are seldom

invaded by flood flows. As a result these secondary channels,

which can be important seasonal fish habitat, become choked

with vegetation and blocked by debris so that much higher

flows are needed to “reactivate” them. Often these channels are

completely lost as seasonal fish habitat.

• Blockage of fish migration into and out of tributaries downstream of dams due to debris and sediment accumulation at

tributary mouths and/or alterations to seasonal flow regimes.

204 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Dominant river flows also serve to clear away debris and sediment accumulation at tributary mouths. When the river’s peak

flows are reduced, access to tributaries can become permanently blocked.

22. While all of the impacts listed above may not exist, or be significant, at each of BC Hydro’s 61 dams/reservoirs involving 34

hydroelectric facilities, it is undisputed that many of BC Hydro’s

hydroelectric operations cause harm to fish habitat in one or more

of these ways. (See for example, DFO report, Impacts of Operations

of Existing Hydroelectric Developments on Fisheries Resources in

BC, Vol. 1, Anadromous Salmon (1991), and the reports provided

under Tabs 2, 6-14 to the submission).

2.0 The Expert Group’s Charge of Assisting the Secretariat to

Develop and Consider Information Concerning Whether

Canada is “Failing to Effectively Enforce” Fisheries Act

Section 35(1)

23. As noted at the outset, the Expert Group’s charge was to assist the

Secretariat in performing its responsibilities in implementing

Council Resolution 98-07. This Resolution directs the Secretariat to

develop a factual record concerning the BC Hydro submission. In

particular, the Resolution directs the Secretariat to consider

whether Canada is failing to effectively enforce its environmental

law, notably Fisheries Act section 35(1), with respect to BC Hydro

operations. The Resolution provides as follows:

[T]he Secretariat, in developing the factual record, [is] to consider

whether the Party concerned “is failing to effectively enforce its

environmental law” since the entry into force of the NAAEC on 1

January 1994. In considering such an alleged failure to effectively

enforce, relevant facts that existed prior to 1 January 1994 may be

included in the factual record.

In sum, we have been requested to assist the CEC Secretariat in

developing information with regard to whether Canada is “failing

to effectively enforce its environmental law.”

24. We have assumed that the definition of enforcement is broad

under Article 14. As a result, we have examined measures other

than prosecutions as components of Canada’s enforcement

regime.

APPENDIX 8 205
25. There are at least two types of facts relevant to the concept of effective enforcement. The first involves facts relating to what is being

done, in other words facts relating to the “enforcement” actions

being undertaken and the resources being devoted to enforcement.

The second type of facts relate to whether the enforcement actions

being undertaken are effective, i.e., are the enforcement actions

eliminating or reducing the violations of law, here the harmful

impacts on fish and fish habitat. The definitions of effective

enforcement offered by both Canada and the Submitting Parties

relate primarily to the second type of fact. Following are some

excerpts from Canada’s March 1999 Submission:

Generally, achieving No Net Loss is what DFO would consider to be

“effective enforcement” regarding hydro dams, or any other industries, in Canada. This would achieve the intent of the Fisheries Act

section 35. (Section 1.1.2)

DFO contends that it is more useful to look to effects on the environment in measuring effectiveness. (Section 1.4.4)

The most important yardstick regarding effective enforcement is the

effect on the resource. (Section 1.6)

26. Likewise, the Submitting Parties state on p. 2 of their 22 March 1999

Submission:

The starting point for considering what constitutes effective

enforcement of environmental laws begins with an analysis of the

environmental law or regulation itself. If the intent and purpose of

an environmental law or regulation is to protect an environmental

value, the provision is effectively enforced when that value is actually protected. Stated another way, enforcement of an environmental law is not “effective” unless enforcement actions achieve the

substantive purpose of the law in question.

27. This is not a report that deals generally with the overall effectiveness of Canadian enforcement efforts, but rather provides information regarding the specific activities of the Federal government

and to some degree the British Columbia government in respect of

whether section 35 of the Fisheries Act of Canada has been effectively enforced with respect to BC Hydro operations covered by

the submission and Council Resolution 98-07.

28. The Expert Group sought to develop information that relates to

Canada’s enforcement efforts in two ways. First, the Expert Group

206 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
developed information relating to Canada’s “policy context”—that is, the overall direction of Canada’s enforcement

efforts with respect to promoting compliance with section 35(1)

and protection of fish habitat and the strategies being used to

achieve these objectives. Second, the Expert Group selected six

hydroelectric facilities for in-depth development of information

relating to Canada’s enforcement approaches.

29. The Expert Group decided to select six facilities for in-depth development of information because of its view that it was important to

focus on actions at individual facilities in order to understand the

nature of Canada’s efforts, and because the significant number of

facilities involved made it imperative to identify a sub-set for more

detailed review. The Expert Group notes that it provided its draft

list of six facilities to the key stakeholders and specifically asked

the stakeholders to identify other facilities that merited review.

(See Appendix 1, containing the 22 January 1999 letter). The Expert

Group explained its decision to select a subset of facilities as follows:

The experts believe that a focus on these facilities [the six listed in the

letter] will enable them to develop information concerning the primary types of adverse impacts on fish habitat sometimes caused by

hydroelectric operations and the full range of Canada’s responses.

Further, this focus will enable the experts to develop information

concerning the system as a whole and it will capture the major

watersheds involved.

30. The Submitters submitted a letter with some suggestions and comments. No comments were received from Canada, British Columbia, or BC Hydro.

31. In developing information, the Expert Group focused on three

basic questions of fact:

• The actions taken by regulatory agencies to identify instances of

ongoing harmful impacts to fish and fish habitat at these facilities;

• The actions taken by the regulatory agencies with the object of

eliminating or reducing the harmful impacts; and

• The results of the actions taken to eliminate or reduce the harmful impacts to fish and fish habitat.

APPENDIX 8 207
See, for example, The Expert Group Questions contained in

Appendix 4 of this Report.

3.0 The Concept of “No Net Loss” and Its Role in Canada’s

General Approach to Enforcement

32. In 1986, Canada developed the Policy for the Management of Fish

Habitat. The key principle embodied in the 1986 Policy for the

Management of Fish Habitat is the principle of No Net Loss (NNL)

of fish habitat. Later Canadian policies, including the Habitat Conservation and Protection Guidelines adopted in 1994 and revised

in 1998, embody this principle as well.

33. The No Net Loss principle underlies most of Canada’s enforcement efforts. In Section 1.6 of its March 1999 Submission, Canada

asserted the following:

The most important yardstick regarding effective enforcement is the

effect on the resource; this is essentially the same yardstick as the No

Net Loss principle of DFO: i.e., is the situation improving for fish

and fish habitat regarding hydro facilities?

34. Canada further asserts that: “The answer is an unqualified yes.”

Our understanding is that with this statement Canada is essentially claiming that it is achieving NNL of fish habitat in British

Columbia with regard to hydro facilities. We discuss this assertion

in more detail below.

35. According to the DFO 1986 Policy for the Management of Fish

Habitat (p. 14), the No Net Loss principle is defined as follows:

Under this principle, the Department will strive to balance unavoidable habitat losses with habitat replacement on a project-by-project

basis so that further reductions to Canada’s fisheries resources due

to habitat loss or damage may be prevented.

The overall goal of the Policy is to achieve a net gain of habitat for

Canada’s fisheries resources.

36. The principle of NNL and the Policy for the Management of Fish

Habitat expressly allow destruction of fish habitat. The hierarchy

of preferences outlined in the DFO 1986 Policy on pp. 25 and 26

essentially sets out the following preferences:

208 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
a) maintain the natural productive capacity of the habitat(s) in

question by avoiding any loss or harmful alteration of habitat

at the site as a result of the project or activity;

b) if impossible or impractical to maintain the same level of habitat productive capacity, try compensating for the lost or

altered habitat using natural habitat at or near the site;

c) if that is not possible, try compensating for the lost or altered

habitat using natural habitat off-site;

d) if that is not possible, try compensating for the lost or altered

habitat using artificial production to supplement the fishery

resource.

37. Relocation, redesign, and mitigation are the order of preferences

for avoiding any loss or harmful alteration of habitat (DFO Habitat

Conservation and Protection Guidelines, 1998 edition, pp. 7-8).

Although the various forms of compensation are least preferred,

they remain an option for all proposals. Although compensation is

nominally excluded when a project impacts critical fish habitat,

there is no firm definition of what constitutes critical habitat and

the possible need for compensation after the fact is acknowledged

(DFO Habitat Conservation and Protection Guidelines, 1998 edition, pp. 9, 12). Given this hierarchy of preferences the Policy could

technically allow the complete elimination of natural fish habitat.

The NNL principle allows for the destruction of fish habitat short

of complete elimination as well.

38. NNL is largely implemented through the Harmful Alteration,

Disruption and Destruction (HADD) to Fish Habitat Decision

Framework. HADD, however, appears to deal primarily with new

project proposals. Thus, it is unclear how it is applied to existing

projects, such as hydroelectric installations.

39. In an effort to understand how NNL is applied to existing hydroelectric installations, the Experts submitted an additional set of

questions to Canada with regard to NNL (Appendix 5: 21 April

Questions). The questions relating to NNL were:

a) What is the process or model utilized to calculate or determine No Net Loss in relation to the six facilities that the

experts have identified to be of interest?

APPENDIX 8 209
i) What year is utilized as the baseline year in the No Net

Loss model from which habitat losses and gains are

subtracted or added?

ii) What kind of monitoring is undertaken to determine

habitat losses and gains for No Net Loss calculations?

iii) How is scientific uncertainty dealt with in the No Net

Loss calculations?

iv) Please provide a detailed sample No Net Loss calculation for a facility, preferably one of the six facilities of

interest, for which No Net Loss has been calculated.

b) What evidence does DFO have to support its “unqualified

yes” (DFO Submission, p. 21) that the situation with respect

to fish habitat in relation to BC Hydro facilities is improving?

For example, in the case of the Puntledge project what is the

scientific evidence that measures taken are good for smolts?

40. Canada’s response to question 1, above, can be found on p. 2 of the

11 June 1999 Response to 21 April 1999 Questions. In this response

DFO states:

The model used by Fisheries and Oceans Canada (F&OC) to calculate or determine No Net Loss in relation to the six facilities of interest is to assess the impacts of the project on fish and fish habitat. This

assessment incorporates available fisheries, biophysical, facilities

management information as well as the professional judgement of

qualified experts in the field. Subsequent steps followed in this process generally follow the F&OC Policy directive entitled “Decision

Framework for the determination and Authorization of a Harmful

Alteration, Disruption or Destruction of Fish Habitat.”

41. On the specific question of Baseline Years (Question 1(a)), Canada

states that the baseline year is “the year in which specific problems

at a facility result in assessments and/or actions by F&OC to

address these problems.” Canada states further that “The baseline

year will be different for each facility” and gives as examples 1995

for John Hart and 1989 for Ruskin. (11 June 1999 Response to 21

April 1999 Questions, p. 2) Canada did not provide any additional

baseline years for the Expert’s consideration although the Expert

Group requested them (Question 1(a) of 21 April Questions).

210 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
42. Thus, it appears that the DFO uses primarily qualitative evaluation

of available information by experts as its “model” for evaluating

habitat quality or damage and that the baseline year for each facility is the year in which a problem has been assessed. In the case of

the John Hart example, the baseline year is many years after the

facility was put into place and many years after harm to fish habitat

has occurred on an ongoing or regular basis.

43. In the example of John Hart, there could have been significant

declines in habitat between the time when the facility was installed

and 1995, when the baseline year for habitat levels was set and

from which net loss and net gain are calculated. Under DFO’s Policy, if the habitat is improved a small amount above what it was in

1995 this would be considered a net gain. However, the productive

capacity of the habitat could still be significantly lower than it was

originally, or in 1977, when section 35(1) of the Fisheries Act was

enacted, in 1986, when the No Net Loss policy was adopted, or in

1994, when the NAAEC was established. In the John Hart situation, for example, there could have been incremental harm to fish

habitat in the years prior to 1995 but Canada would not consider

this harm in setting its baseline at the level of fish habitat present in

1995. If baseline years for other facilities are in the same general

time frame, it is likely that there have been significant habitat losses

at many if not all hydroelectric facilities over the past two decades

that would not be captured by the NNL principle due to the manner in which baseline years for NNL are established.

44. It is likely that Canada has adopted its current approach to setting

baseline years because it does not have data with regard to productive capacity of habitat before “specific problems at a facility result

in assessments and/or actions by F&OC to address these problems” (11 June 1999 Response to 21 April 1999 Questions, p. 2).

Nevertheless, under the No Net Loss policy it is likely that harm to

fish habitat has occurred during the past several years that Canada

has not considered in setting its baseline. Given Canada’s apparent

reliance on NNL to achieve compliance with section 35(1), Canada’s failure to consider such losses in setting its baseline conditions raises a question as to whether Canada treats such harm as

violations of Fisheries Act section 35(1). As noted above, through

the NNL policy, Canada would seem to accept or condone harm to

habitat before the baseline is set. Further, as noted above, Canada

would seem to condone harm after the baseline is set so long as the

harm is compensated consistent with the NNL policy.

APPENDIX 8 211
45. On the question of monitoring Canada states that “Monitoring

requirements are site specific” and that “Generally the focus of

monitoring is the determination of the change of productive capacity and subsequent changes in fish production.” (11 June 1999

Response to 21 April 1999 Questions, p. 2). Instream flow studies,

biophysical measurements, water quality studies and stock assessments are given as examples of monitoring programs.

46. On the subject of scientific uncertainty Canada states that it “generally applies a risk averse, conservative approach to No Net Loss

assessments . . .”(11 June 1999 Response to 21 April 1999 Questions,

p. 3) and that “F&OC through WUP’s and with the concurrence of

the proponent will endeavor to incorporate provisions for review

and adaptation into its assessments” (ibid.).

47. In its response to Question 1(d), Canada does not provide a

detailed sample No Net Loss calculation for a facility. Instead it

states that “calculation of a habitat balance sheet for existing hydro

facilities is a complex undertaking” and that “variability of flows

or water levels above and below facilities, and day-to-day system

operations, which make it difficult to clearly identify and quantify

impacts.” (11 June 1999 Response to 21 April 1999 Questions, p. 3).

In lieu of the detailed calculation of No Net Loss for a facility Canada offers the details of the development of the Campbell River

Interim Flow Strategy (ibid.).

48. A further question regarding NNL concerns the definition of baseline condition. In the June 11 Canadian response to additional

question #5, the baseline condition is confirmed to be “incrementally improving current habitat productive capacity to arrest the

decline in fish production potential.” (11 June 1999 Response to 21

April 1999 Questions, p. 9). This statement suggests that Canada

considers baseline conditions to have been achieved when the

decline in habitat capacity has stopped. The purpose of establishing a baseline should be to quantify the amount of habitat at a certain point in time and then attempt to restore habitat to that level

and maintain it at that level. The definition cited does not reflect

that goal.

49. We have been told that baseline, improved and restored scenarios

were tentatively identified for most BC Hydro facilities (Canada’s

11 June 1999 Response to 21 April 1999 Questions, p. 9; Canada’s March 1999 Submission, Section 3.1 of this report). We have

212 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
requested these scenarios for the six facilities (Question #5 of 21

April 1999 Questions) but they have not been provided. As a result,

it is not clear what Canada considers to be baseline (or better) conditions for these particular facilities, or when these conditions

were set.

50. Canada appears to believe that if the baseline scenario established

through WUP is maintained NNL will have been achieved. (See

Canada’s March 1999 Response to Expert Group, Section 3.1:

“. . . we expect to achieve as a minimum, a baseline condition which

is in full compliance with Fisheries Act requirements at each facility”). The improved scenario is then set above the baseline scenario

and the restored scenario is a hypothetical target level.

51. Setting the baseline conditions at the habitat level that exists when

Water Use Plans (WUP) are initiated or in the recent past sets the

bar too low for habitat protection. There is no requirement to

address the possibly significant habitat loss sustained before the

baseline scenario was established. Habitat conditions have generally declined since the installations of hydroelectric facilities. Further, habitat loss may occur after the baseline is set so long as

compensation is made for such losses.

52. It is not clear whether Canada routinely takes a comprehensive

approach to assessing the impacts at each facility. It is clear that

hydroelectric operations create many different impacts on fish

habitat. In some cases, such as the John Hart project, Canada has

taken a fairly comprehensive approach, through the formation of

the Campbell River Advisory Committee to identify and address a

wide range of impacts at the facility to ensure that there is NNL

from 1995 on. In its responses to our various questions, Canada has

not itemized the full range of impacts at each site and has not indicated which of these are being addressed and which are being

accepted as “pre-baseline.” Thus, it is not possible for the Expert

Group to review whether Canada’s baseline approach is sufficiently comprehensive to establish a baseline for all harmful

impacts on fish habitat.

53. Various other examinations of NNL, including A Review of

Salmon Stock Status (Slaney, et al. 1996, Status of Anadromous

Salmon and Trout in BC and Yukon, Fisheries 21: 20-35), a DFO

sponsored workshop (Quadra Planning Consultants 1997, No Net

Loss of Habitat: Assessing Achievement, Habitat and EnhanceAPPENDIX 8 213
ment Branch, DFO, Vancouver), an evaluation by a committee of

experts (The Living Blueprint for Salmon Habitat, published by the

Pacific Salmon Foundation) and the Pacific Fisheries Conservation

Council (annual report 1998-99) have all concluded that the NNL

policy has failed to protect fish habitat.

54. Given the responses by Canada to the Expert Group’s additional

questions concerning No Net Loss determinations (qualitative

nature of impact assessments, perceived problems with setting

baseline years discussed above, limited information coupled with

the acknowledged complexity of calculating habitat balance sheets

and failure to provide a sample detailed No Net Loss calculation

for a facility), Canada has not provided sufficient information for

outside reviews of its assertion that it is achieving No Net Loss at

individual BC Hydro facilities or for the hydroelectric system as a

whole. The achievement of No Net Loss may allow harm to fish

habitat at BC Hydro operations to continue and may not address

harm to habitat that has occurred in the past.

4.0 Canada’s Policy Context—A Review of Canada’s

Enforcement Responses Concerning the Statutory

Prohibition Against Harming Fish Habitat

55. Canada’s March 1999 Submission describes a number of activities

that it is currently undertaking to enforce section 35(1) of the

Fisheries Act. These activities include things such as: prosecutions,

interim orders, technical committees, studies, model development, the development of water use guidelines, letters, informal

negotiations with BC Hydro and formal negotiation processes,

such as the WUP. Of these, information is provided below concerning the following:

• Prosecutions

• Environmental Assessments of New Projects and Retrofits

• Emergency response Procedures

• Regional Technical Committees

• Water Use Planning

• Water Quality Guidelines

214 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
4.1 Prosecutions

56. The Fisheries Act authorizes the government to prosecute parties

that violate section 35(1) of the Fisheries Act and it provides for

sanctions against those found guilty of violating section 35(1).

57. In the Submitting Parties original April 1997 Submission (p. 10) the

Submitters state that Canada had only laid two charges under section 35(1) against BC Hydro since 1990. Given the alleged violations of that section the Submitters allege that “this enforcement

record reveals a consistent failure by the Federal Government to

effectively enforce section 35(1) against Hydro, not a reasonable

exercise of prosecutorial discretion” (Submitters’ April 1997 Submission, p. 10). Moreover, the Submitters, in their 10 September

1997 Reply to Canada’s Response (p. 5), provide the following

comment regarding Canada’s table of administrative actions

directed at BC Hydro since 1990 (Canada’s July 1997 Response, p.

16): “Of the 14 actions described, eight are authorizations to harmfully alter, disrupt or destroy fish or fish habitat, three are merely

letters, two order specific flows and one requests flows. These 14

items, only three of which directly benefit fish habitat, apply to

only four of the 33 projects described in the submission. Canada

presents no evidence of any equivalent actions undertaken with

respect to the remaining 29 projects.”

58. Canada, in its July 1997 response, states that BC Hydro has been

charged twice (total of 5 counts) involving the alleged Bridge

River violations and the Cheakamus court challenge. (Canada’s

July 1997 Response, p. 17). Canada has not reported the total cost

incurred for these two prosecutions but in Sections 1.4.2.1, 1.4.2.2

and 1.4.2.3 of Canada’s March 1999, Response to the Expert Group

it cites examples of the time and effort expended on these prosecutions and provides some quantification of costs to support its contention that “Litigation is costly and uncertain.” (Canada’s March

1999 Submission, Section 1.4.3).

59. In the 21 April 1999 Questions, we asked Canada and the Province

for additional information regarding the level of resources

devoted to enforcement:

For each year, 1994-1998, inclusive, how much human (FTEs) and

financial resources (budget allocation) have DFO and provincial

agencies dedicated to enforcement of section 35(1) of the Fisheries

APPENDIX 8 215
Act in British Columbia? To the extent the information is available,

please provide a breakdown of the allocation of these resources by

type of activity—e.g., monitoring, investigation, and enforcement

(Question # 3).

60. The Expert Group also asked for information concerning the level

and outcomes of enforcement-related activity (number of inspections, etc.).

For the same time period, please provide any compliance and

enforcement data for British Columbia not yet submitted relating to

Fisheries Act section 35(1), such as data concerning the level of

enforcement activity (e.g., numbers of investigations and inspections), and the outcomes of such activity. With respect to outcomes,

for example, the DFO 1996-1997 Annual Report to Parliament provides information on convictions for fiscal years 1994/95, 1995/96

and 1996/97. Please provide similar information for fiscal years

1997/98 and 1998/99 if it is available. Please also provide information concerning any sanctions imposed for violations of section

35(1) in British Columbia (e.g., the number and monetary value of

fines imposed for such violations) (Question # 4).

61. The Province did not answer these questions. There is no information relating to the effectiveness of Provincial enforcement efforts

in terms of resources allocated to enforcement, level of enforcement activity, or results of such enforcement activity. Canada provided information related to the Bridge River and Cheakamus

prosecutions. (11 June 1999 Response to 21 April 1999 Questions,

p. 6) Canada did not provide any information on the level of

resources it devotes to monitoring or investigation each year.

62. Canada in its 11 June 1999 response indicated that it did not keep

statistics on the number of investigations (p. 7). Canada likely has

more information on investigations than has been provided. For

example, it is our understanding that regional field staff is required

to keep daybooks or other routine records of their activities. It may

be that the data from these records have not been processed and

summarized and therefore not in the form that could be provided

to us.

63. In Section 1.4.3(c) of its March 1999 Submission, Canada notes that

it is continuing to train its staff with formal witness training programs in recognition of the increasing complexity of environmental investigations and prosecutions. No information was provided

216 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
to the Expert Group concerning the level of training needed to conduct necessary investigations and prosecutions and no information was provided concerning the extent to which this level of

training is being provided.

64. Notwithstanding the expense and difficulty of prosecutions Canada states that it will continue to investigate and proceed with

charges under the Fisheries Act where evidence is available (Canada’s March 1999 submission, Section 1.4.3(b)). Canada did not

provide certain types of information directly relevant to this assertion, such as the number of violations discovered, although it did

provide other relevant information, such as the number of convictions reported under section 35(1) of the Fisheries Act in British

Columbia (11 June 1999 Response to 21 April 1999 Questions, p. 8).

65. This report does not address the extent to which Canada has established a policy context to guide its use of prosecutions as an

enforcement tool. In the Expert Group’s February 1999 Questions

(p. 1) we asked for the following information:

Canada has identified a wide range of government responses. We

are interested in obtaining information concerning three types of

government policies relating these responses:

a) policies that explain Canada’s overall plan for enforcement and

compliance concerning Fisheries Act section 35(1);

b) policies that discuss the criteria Canada uses in deciding which

government response to use in dealing with a particular violation of section 35(1); and

c) policies that explain the purpose of each government response

and how each is supposed to work.

With respect to prosecutions, for example, we are interested in the

criteria Canada uses in deciding whether to investigate a possible

violation of Fisheries Act section 35(1), and/or in deciding whether

to bring a prosecution for such a violation. We are interested, therefore, in such documents relating to, among other things:

a) charge screening;

b) recommending charges; and

c) instituting investigations.

APPENDIX 8 217
66. Canada did not provide any policies that explain Canada’s overall

plan for enforcement and compliance concerning Fisheries Act section 35(1) as part of its March 1999 Submissions but instead in the

fall provided a July 1999 draft policy (Habitat Protection and Pollution Prevention Provision Compliance and Enforcement Policy,

July 1999). Although still in draft form, the document provides

some helpful guidelines regarding the application of various tools

of enforcement. No information was provided as to when this document will be made final or concerning the extent to which it is

being implemented. Because of the date when it received this draft

Policy, the Expert Group does not cover it in this report.

67. Various Canadian documents issued well before July 1999 had

referred to enforcement or compliance policies. It is unclear to the

Expert Group what policies these documents were referring to. No

clarification of this issue was provided.

68. Canada, in Section 1.4.3(d) of its March 1999 Submission, states

that: “It is worth noting that in the hydro litigation to date, the

direct benefits to the fisheries resource have been nil.” It is also

worth noting that the indirect benefits that resulted from the

Bridge River prosecution in the form of the Bridge River settlement

had positive implications for fish habitat. Positive results also followed the Cheakamus litigation. Thus, Canada’s conclusion that

there are no direct benefits to the fisheries resource is based on a

narrow view of the concept of benefits. In the end, there is little

information relating to the effectiveness of prosecution as an

enforcement tool given the lack of use of this tool to date and the

lack of information provided regarding the tool. The July 1999

draft Policy contains a strategy for use of prosecutions, but little

information was provided on actual implementation of this draft

strategy (Habitat Protection and Pollution Prevention Provision

Compliance and Enforcement Policy, July 1999).

4.2 Environmental Assessments of New Projects & Retrofits

69. Canada’s July 1997 Response states that it enforces its environmental laws in part by subjecting new and changing operations to a

stringent regime of environmental regulation. Canada states that it

scrutinizes impacts anticipated from such operations and requires

mitigation, compensation, and monitoring plans. It indicates that it

issues section 32 and 35(2) authorizations as appropriate when the

218 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
proponent satisfactorily addresses Fisheries Act issues. (Canada’s

July 1997 Response, p. 18).

70. Canada provides a list of its section 32 and 35(2) authorizations in

Table 1 of its Response. (Canada’s July 1997 Response, pp. 16-17).

Canada also uses section 35(2) authorizations for emergency operations in some cases.

Canada’s use of the section 32 and 35(2) authorizations enforcement tool has been limited in the context of the significant number

of hydro-electric facilities operated by BC Hydro.

71. The Expert Group has been provided relatively little information

concerning the effectiveness of section 35(2) authorizations in

those situations in which they have been used. The use of this tool

in connection with the six facilities that the Expert Group reviewed

in detail is discussed below in Section 5 (paragraphs 102 and

following).

72. The Expert Group offers two other facts in terms of the handling

of new projects and modifications. First, in 1998, the “Decision

Framework for the Determination and Authorization of Harmful

Alteration, Disruption or Destruction of Fish Habitat,” hereafter

referred to as the 1998 HADD Decisions Framework, was developed. This is a tool for use by habitat managers when reviewing

project proposals (new projects and retrofits). It provides a decision framework for making a determination whether a proposal is

likely to result in a harmful alteration, disruption or destruction of

fish habitat and whether an authorization under Fisheries Act section 35(2) should be issued. Related policies have been issued as

well. Second, the Expert Group notes that the 1998 HADD Decision

Framework discusses the relationship between section 35(1) violations and section 35(2) authorizations. The Framework provides

that: “If... there is likely to be a HADD... then a subsection 35(2)

authorization is required in order for the project to proceed without risking contravention of subsection 35(1).” (1998 HADD Decision Framework, p. 8). And again: “[I]f the conclusion is that there

is still likely to be a reduction in the habitat’s capacity to support

life processes of fish [after mitigation is done] and, consequently,

there is likely to be a loss in the habitat’s productive capacity, then

the decision is that a HADD is likely to result . . .” (1998 HADD

Decision Framework, p. 18).

APPENDIX 8 219
4.3 Emergency Response Procedures

73. Canada discusses Flow Orders as emergency response procedures. (Canada’s July 1997 Response, p. 18). Orders have been

issued under section 22(3) of the Fisheries Act at Cheakamus in 1997

and in the Columbia River in 1995. These orders have resulted in

increases in water flow, which is likely of positive benefit to fish.

No quantitative evidence was presented concerning the extent to

which increased flows have actually benefited fish or fish habitat

or the adequacy of the increased flows to protect fish habitat. Similarly, no information was provided concerning the extent of benefit Canada sought to achieve through use of these Orders and no

information was provided concerning whether these benefits were

actually achieved.

74. Canada also discusses authorizations under section 35(2) as emergency response procedures. (Canada’s July 1997 Response, p. 18).

Formal Fisheries Act section 35(2) authorizations have been issued

for the Shuswap River in 1992 and 1993, for the Columbia River in

1994, 1995 and 1996 and for the Seven-Mile Unit 4 Project in 1996.

(See Tab 37 of the Appendices to Canada’s July 1997 Response).

Again, there was no quantitative evidence presented concerning

the extent to which issuance of the authorizations actually benefited fish or fish habitat. Similarly, no information was provided

concerning the extent of benefit Canada sought to achieve through

use of these authorizations or concerning whether these benefits

were actually achieved.

75. Canada does not appear to view use of flow orders or authorizations as emergency response procedures as necessarily the only

enforcement tool required. Instead, Canada indicates that “[o]nce

an emergency is over, DFO requests the proponent to develop

appropriate mitigation procedures and compensation measures to

the satisfaction of DFO in anticipation of a similar future emergency.” (Canada’s July 1997 Response, p. 18).

76. In sum, it is clear that Canada views emergency response procedures as an enforcement tool. It is also clear that in Canada’s view

the role of these procedures is to limit harm to fish habitat on an

interim basis while more comprehensive measures are developed

and implemented. From the limited information provided to the

Expert Group, use of these procedures has likely had some positive

impact in reducing harm to fish habitat. However, little informa220 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tion concerning the nature and extent of the effectiveness of this

tool in reducing harm to fish habitat in the situations in which it has

been used has been provided. Further, this tool has seen quite

limited use thus far. Thus, the Expert Group is not in a position to

provide information concerning whether Canada has used this

enforcement tool effectively. Important information that is lacking

relating to the effectiveness of this tool includes the following: a)

how often emergencies arise; and b) the effectiveness of Canada’s

use of its emergency authorities (for example, how effective was

Canada’s use of its emergency procedures in limiting the HADD in

particular situations, and in limiting future emergencies, and to

what extent did any decision not to use such procedures to address

various emergencies lead to HADDs that otherwise might have

been avoided).

77. As mentioned elsewhere, section 35(2) authorizations are available

as enforcement tools in other than the emergency response context.

Canada indicates that it intends to use such authorizations as part

of the WUP process (WUP Management Committee’s March 1999

Submission, Section 5.4) See generally, the 1998 HADD Decision

Framework for a summary of the use of section 35(2) authorizations and the Directive on the Issuance of subsection 35(2) Authorizations (DFO 25 May 1995).

4.4 Regional and Technical Committees

78. Canada, with BC Hydro and the BC Ministry of Environment,

Land and Parks (MELP), has established a Steering Committee and

Regional Technical Committees. (See Canada’s July 1997 Response

pp. 18, 19) The Steering Committee was formed to deal with policy

level issues and the Regional Technical Committees were set up to

deal with technical issues. The Regional Committees are:

Columbia Operations Fisheries Advisory Committee

Vancouver Island Fisheries Technical Committees

South Interior Fisheries Technical Committees

Lower Mainland Fisheries Technical Committees

Steering & Technical & Policy Committees—Peace River compensation program.

Steering & Technical & Policy Committees—Columbia River compensation program

APPENDIX 8 221
79. The Expert Group understands that these Committees have been

useful in bringing the facility operators (BC Hydro) and the regulators (DFO and MELP) together to address fish habitat issues. Some

technical committees have representation from local stakeholder

groups while others only have representation from BC Hydro,

DFO and MELP.

80. The Committees were “tasked primarily with identifying existing

fisheries concerns and reviewing mitigation and enhancement

options at existing hydro facilities in relation to the Electric System

Operation Review” (WUP Management Committee’s March 1999

Submission, p. 19). The extent to which this task has been completed by the Committees is not clear. Canada did not respond to

the Expert Group’s request for an inventory of harmful impacts

and potential corrective actions for specific facilities (3 February

1999 Questions).

81. With the exception of the Campbell River Advisory Committee

and the Alouette Stakeholder Committee we have not received

sufficient information to evaluate the effectiveness of these committees. While it is unclear how much of the Campbell River Management Strategy has actually been implemented we understand

that the flow regimes have been altered and the interim flow strategy has become an interim flow order under WUP. (Canada’s

March 1999 Submission). The Order issued 3 October 1997 incorporates Sections 5.2.1 to 5.2.4 inclusive of the Recommended Operating Regime as set out in the Campbell River Interim Flow

Management Strategy dated May 1997 and therefore incorporates

the recommendations of the committee. Likewise a baseline flow

in the canyon has been implemented and a number of habitat

improvements have been undertaken including restoration activities in the estuary, the creation of side channels and gravel placement in the river etc.

82. Canada clearly believes that the Campbell River committee process was very successful and the Campbell River Advisory Committee indicates in its report’s executive summary that the flows

stipulated in the management strategy will be more beneficial to

fish than the natural flows. (Campbell River Interim Flow Management Strategy).

83. The measures recommended by the Campbell River Advisory

Committee are an improvement for fish and fish habitat. However,

222 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
whether the changes will be sufficient to achieve the target returns

for chinook and steelhead (the only two species for which targets

were set) is uncertain. Moreover the targets set were at prehatchery levels (pre 1975) as opposed to current escapement levels—a good goal in theory. But using historic escapement estimates as a target may be questionable given that the quality of

escapement estimates is often poor. The extent of improvement,

and the appropriateness of additional improvements, are not clear

at this point. The changes are too recent and there has been no

opportunity for monitoring over time. The quantitative proof will

be in the salmon returns but these will not be known for at least

four years from the implementation date in 1998, probably much

longer. Monitoring of results to evaluate the extent to which these

actions lead to better habitat and fish return, and undertaking further improvements depending on these results, are key elements of

the effectiveness of this approach.

84. Overall, initiatives such as the Campbell River Advisory Committee in which the governments involve numerous interested parties

and develop a comprehensive plan are positive and will be a good

model for the WUP provided it leads to an adequately funded program. Adequate monitoring of results and, as appropriate, further

restorative action, are key elements of such efforts as well.

4.5 Water Use Planning (WUP)

85. As stated in the Water Use Plan Program, Section 1, WUP “is a

major new initiative by the Province, DFO and, in the first instance,

BC Hydro. Its purpose is to integrate environmental and social

considerations into the operations of water control facilities in a

comprehensive and systematic manner.” (WUP Management

Committee’s March 1999 Submission, p. 4). The second paragraph

in this section goes on to say, “We offer the following information

to the independent experts of the Secretariat because water use

planning builds on and is an outcome of past efforts to manage

water and, in particular, to effectively meetthe spirit of legislation

(emphasis is that of the Expert Group) such as the Fisheries Act.” In

general then the Expert Group understands WUP to be a process to

establish operational parameters for water control facilities giving

due consideration to the multiple use interests and at the same

time effectively enforcing the spirit of legislation such as the Fisheries Act. This initiative was announced in 1996 and the final WUP

APPENDIX 8 223
Planning Guidelines were released in February 1999 (WUP Management Committee’s March 1999 Submission, p. 15).

86. No formal WUPs have yet been completed and implemented but

the activities of the Campbell River Advisory Committee and the

Alouette Stakeholder Committee have frequently been referred to

as informal WUPs. Since the WUP process is a future process and

since there are no examples of WUP implementations it is not yet

clear whether, or to what degree, this consultative process has or

will effectively reduce adverse impacts on fish and fish habitat

resulting from operations of hydroelectric facilities.

87. Page 35 of the BC Water Use Plan Guidelines outlines monitoring

requirements—WUP must specify measures with which to assess

compliance and there must be regular reviews of monitoring

reports that are prepared by the licensee. Compliance is to be subject to the oversight of the Comptroller and regulatory agencies.

88. The Provincial Government has directed BC Hydro (Minister

Farnworth’s letter of 4 November 1998) to participate in WUP and

to complete priority draft water use plans on coastal facilities for

consideration by the water Comptroller in three years and the

remainder within five years of the date of the directive.

89. The BC Government states that the estimated cost of developing

WUPs for all of BC Hydro’s hydroelectric facilities will be in the

order of $35 Million and that costs will be borne by BC Hydro, DFO

and the Provincial Government. No mention is made as to how

these costs are to be shared nor is there any commitment or cost

estimate for implementation of the WUPs.

90. WUP is a move in the right direction towards achieving greater

protection of fish and fish habitat from the harmful impacts of

hydroelectric operations. It is a much more comprehensive

approach to gathering data, identifying harmful impacts and

developing action plans to protect fish and fish habitat at each facility than the ad hoc approaches currently being used.

91. Notwithstanding the positive features of the WUP process, a number of aspects of this program may limit its effectiveness. These

include:

224 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
a) Canada’s March 1999 Submission (Section 1.5.2.3) states that

it has agreed to participate in the WUP initiative under certain conditions. One of the conditions is that “DFO expects to

achieve full compliance with the Fisheries Act through the

WUP process.” The Submitters contend that a 35(2) authorization can only be granted if the Canadian Environmental

Assessment Act (CEAA) process has been completed. The

1998 HADD Decision Framework also indicates that CEAA

is triggered by section 35(2) authorizations (Sec. 4.0, p. 22).

WUP Management Committee’s March 1999 Submission

(p. 12) say that new water control projects will be subject

to CEAA in cases where joint federal-provincial environmental reviews are required. The Submitters believe that the

intended WUP process will underutilize CEAA and that the

environmental assessment process under CEAA provides a

superior process to the intended WUP process (Submitters’

22 March 1999 Submission, p. 10). They believe this is particularly true “with respect [to] issues such as the applicability of

the process, scope of the assessment, public participation,

independent decision making and procedural safeguards.”

If the WUP process leads to issuance of section 35(2) authorizations without following the CEAA process, this may raise

issues relating to effectiveness, such as public credibility, and

the like. The fact that the Submitters have raised this issue is

evidence that a failure to follow CEAA may affect the effectiveness of the process in terms of its public credibility.

b) WUP is not embodied in legislation or regulations (other

than the intent to include approved WUP’s as conditions of

water licenses under the Provincial Water Act). Considerable

discretion is left to the water Comptroller and the licensee

(BC Hydro). The lack of statutory or regulatory status of

WUP raises questions relating to the process, such as:

• What opportunities will exist for various interested parties to shape and oversee implementation of the WUP

policy with respect to particular operations?

• What time limits apply to the process?

• What action can be taken if the license or permit conditions

do not produce the intended benefits to fish or fish habitat?

APPENDIX 8 225
c) WUP embraces the DFO policies of No Net Loss, Net Gain

and the baseline condition, improved and restored scenario

measurement system. Questions concerning this policy and

its measurement parameters are described in Section 3.1,

above.

In Canada’s March 1999 Submission, Section 3.1, p. 29, Canada

states: “As part of the initial scoping and development of the WUP

process, DFO, MELP, BCF and BC Hydro developed a database of

facility scenarios, fisheries issues and objectives and WUP scenarios. In this we have tentatively identified baseline, improved and

restored scenarios for most facilities.” The Expert Group requested

this information (see 21 April 1999 Questions, #5: “In the DFO Submission, DFO indicates that it has “tentatively identified baseline,

improved and restored scenarios for most facilities.... Please provide each of those scenarios for the six facilities of interest. . . .”) If

this work has been completed and documented it is difficult to

understand why DFO did not submit the information to the Expert

Group in response to its Question 5. This question, for which there

has not been a specific and adequate response, was designed to

elicit evidence that there existed a comprehensive, facility by facility, assessment of fish habitat problems, with appropriate action

plans, on the BC Hydro system.

92. The Expert Group has received considerable information from

Canada, the province, BC Hydro and the submitters in the form of

reports, studies and overviews pertaining to impacts on fish and

fish habitat at BC Hydro facilities. The Expert Group’s concern is

that Canada (DFO) has not shown, through direct response to specific questions asked by the Experts, that the studies, reports and

overviews have led to development of comprehensive action plans

for reducing or eliminating HADD at these facilities and thereby

achieving compliance with the Fisheries Act. The proposed WUP

process is intended to produce these comprehensive action plans.

No information was provided to indicate that the Party has developed such plans yet.

93. The WUP program calls for the eventual inclusion of impacts at all

BC Hydro hydroelectric facilities. No information was provided as

to how the complex problem of integrated system operations is to

be dealt with. It is well known that impacts at individual sites and

for the system overall will vary according to the way in which the

entire system is operated.

226 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
94. In monitoring the effectiveness of the WUP program, it will be

important to review the following:

• The timetable for actual development and implementation of

WUPs;

• The nature of the changes made to the water licenses to

reduce/eliminate harm to fish habitat;

• The extent of compliance with any such changes to the water

licenses;

• The nature and effectiveness of follow-up to instances of

non-compliance with such changes;

• The inclusion of overall system operations as an effective means

to achieve net gains for fish and fish habitat;

• The development and use of credible tools for measuring and

assessing net gain/losses of fish habitat for individual facilities

and for the BC Hydro system overall;

• The extent to which WUP leads to reductions in and/or the

elimination of harm to fish habitat and/or issuance of section

35(2) authorizations, and the extent to which HADDs continue

to occur/exist without issuance of section 35(2) authorizations;

• To the extent that one or more WUPs do not lead to issuance of

section 35(2) authorizations, the nature and effectiveness of

DFO follow-up to promote compliance with Fisheries Act section

35(1) and reductions in/elimination of harm to fish habitat.

95. In sum, the WUP process holds promise as an enforcement strategy. Because the process is at an early stage, little information

exists concerning the extent to which the WUP process will prove

to be an effective enforcement strategy. Assessments of its effectiveness must await implementation of the process over the next

several years. Some of the more significant questions relevant to

implementation of this strategy are listed above. Even if negotiations lead to a WUP that is acceptable to DFO, this does not mean

that all parties will respect the plan, or that violations of s. 35 will

not still occur. DFO will still need to employ its full range of

APPENDIX 8 227
enforcement tools to ensure adequate protection and conservation

of fish habitat.

4.6 Water Quality Guidelines

96. Canada’s July 1997 Response (p. 21) discusses Water Quality

Guidelines as one of its enforcement and compliance strategies.

Canada limits its discussion to an initiative by DFO, DOE and

MELP on the development and implementation of the BC Water

Quality Guideline for Dissolved Gas Supersaturating. Canada

states that the guideline is ready for imminent publication but the

Expert Group has not been provided with the final guideline, with

information concerning application of the guideline, or with information concerning the effects of the guideline on fish habitat. Thus,

the Expert Group cannot provide information on its potential or

actual value as an enforcement tool.

97. BC Hydro, in its document “Environmental Management System

for Aquatic Resources (EMS), June 1995,” gives the issue of water

quality much wider scope than simply the dissolved gas pressure

problem. The following excerpt from page 3 of the document’s

introduction to the water quality issue states:

In the broadest sense, water impoundment facilities convert, in

most cases, a flowing river into a large lake. The resulting changes to

water quality are substantial. Temperature, dissolved oxygen, total

gas pressure, sediment and nutrient levels, pH, and dissolved metals concentrations all can change by altering the flow regime of a

river. Aquatic organisms that depend upon the physical water

parameters will also be affected by the changes to water quality. In

essence, a completely new ecosystem is formed. Some aquatic species adapt and thrive, others disappear.

98. Later in the same document (Environmental Management System

for Aquatic Resources (EMS), June 1995) BC Hydro comments:

Although to date BC Hydro has not been required to explore water

quality issues, and search out problems, such an approach would be

considered becoming more stewards of the water resource. BC

Hydro has a responsibility to operate in a manner which minimizes

[sic] the impact on the water resource. In the case of water quality,

the corporation is not aware how its operations affect the water

quality at most facilities. Examining this deficiency would form the

first attempt at becoming stewards of the water resource, and being

228 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
duly diligent at the same time (Environmental Management System

for Aquatic Resources (EMS), June 1995, p. 3).

99. The impacts attributed to the water quality issue by BC Hydro are

far more diverse than the single gas pressure issue discussed by

DFO.

100. BC Hydro goes on to assert:

Of course, most of the water quality changes that have resulted due

to the installation of BC Hydro’s water retention facilities have been

previously sanctioned by the DFO (Environmental Management

System for Aquatic Resources (EMS), June 1995, p. 3).

101. In sum, limited information was provided relating to whether

Water Quality Guidelines have to date been an effective instrument of Fisheries Act enforcement. There appears to have been limited progress in developing one Water Quality Guideline (for

dissolved gas supersaturating). The Expert Group has not been

provided with any information suggesting progress in developing

Water Quality Guidelines for the other harmful impacts that BC

Hydro, in its 1995 report, indicated that dams have on water quality. The Expert Group expects that, in fact, DFO has guidelines for

other water quality parameters (e.g., oxygen, pH) that were not

provided. These guidelines may not be formally published.

5.0 Review of Information for Six Facilities

102. In reviewing information for each of the six facilities selected, the

Expert Group first considered the allegations made by the Sierra

Legal Defence Fund (SLDF) on behalf of its clients and the response

by Canada to those allegations. In some instances supplemental

information on enforcement activities at these facilities was provided in materials supplied by BC Hydro. Based on this information, the Expert Group posed specific questions about activities

related to enforcement at each of the facilities to which Canada and

other parties provided responses in March 1999. The Expert Group

posed follow-up questions in April 1999, to which it received

responses in June 1999. A complete list of the questions posed by

the Expert Group is included in Appendices 4 and 5: 3 February

1999 Questions, and 21 April 1999 Questions.

APPENDIX 8 229
5.1 WAC Bennett/Peace Canyon dams and generating stations

on the Peace River

5.1.1 Allegation

103. Drawdown in Williston Reservoir affects fish productivity (Submitters’ April 1997 Submission, Appendix A, p. 1).

Canadian Response supplemented

by information from BC Hydro

104. Canada acknowledges that drawdown probably affects fish in

Williston Reservoir and a number of reservoir habitat impacts are

listed by BC Hydro (BC Hydro Fish Flow Overview Report # EA:

95-06, pp. 45-6). Canada asserts that these effects are, in part, offset

by unspecified activities funded by an $11 million dollar fish and

wildlife compensation program established by BC Hydro in 1988

(Canada’s July 1997 Response, p. 32). BC Hydro asserts that reservoir stocks are not shoreline spawners and, therefore, spawning

and incubation is not impacted by reservoir drawdown but stocks

may still be limited by reservoir drawdown if juvenile stages are

dependent on littoral food sources (BC Hydro February 1999 Submission, p. 24). BC Hydro states that the compensation program

was to improve spawning and rearing habitat in tributaries and to

stock the reservoir with kokanee (ibid.). The compensation fund is

administered jointly by BC Hydro and the British Columbia Ministry of Environment, Lands and Parks (MELP).

Supplemental Information Requested

105. The Expert Group requested specific additional information from

Canada through the following questions (3 February 1999 Questions, p. 3):

a) How much water is drawn down?

b) What are the harmful impacts on fish habitat of the drawdown?

c) What has been Canada’s response to those harmful impacts

and to what degree has Canada’s response led to a reduction

in impacts?

d) What effect has BC Hydro’s fish compensation fund had on

harmful impacts on fish habitat?

230 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
106. Maximum reservoir drawdown is 30 m below full pool; however,

the normal operating drawdown is less than 15.24 m (BC Hydro

Fish Flow Overview Report # EA: 95-06, p. 46). Canada’s March 1999

Submission, Section 3.8.1 states that, in collaboration with MELP,

DFO has plans to fertilize unspecified bays in the reservoir and to

improve access to unspecified tributary streams. Re-vegetation of

shoreline areas affected by drawdown is also under consideration

(ibid.). Habitat restoration in tributaries to Dinosaur Lake and

increases in littoral productivity by unspecified means are mentioned as elements to be included in a WUP as well as assessment

of benefits of reducing water level fluctuations in this reservoir

(ibid., Section 3.8.2).

Information Provided by the Expert Group

107. Habitat impacts have occurred in the reservoir and they continue

to occur under normal facility operation. Canada acknowledges

that there are a variety of fish habitat problems associated with reservoir drawdown at these facilities, but provides few details of the

nature and extent of the problems. The BC Hydro Fish Flow Overview Report lists impacts on littoral habitat, fish entrainment

through the dam, fish stranding, reduced access to tributary

streams, spawning impacts and mobilization of suspended sediment in the drawdown zone as issues of public concern (BC Hydro

Fish Flow Overview Report # EA: 95-06, pp. 45-46).

108. The principle mitigation/compensation mechanism for these

problems appears to be the compensation fund, which provides

income of about $790,000 per year to spend on habitat rehabilitation and enhancement (Canada’s July 1997 Response, p. 32). The

fund is administered by BC Hydro and MELP so that Canada has

no direct say in the allocation of funds. Canada suggests a number

of future activities to which it has agreed in consultation with

MELP but the extent to which these agreements will be implemented or effective is unclear. Their details apparently remain to

be negotiated as part of the WUP process. Canada has not

explained what is being done under the compensation program, or

what has been accomplished.

109. With regard to the overall allegation of drawdown effects on fishes

in the reservoir, Canada appears to be dependent on unspecified

actions of the compensation fund to address whatever problems

exist or may occur in the immediate future (Canada’s July 1997

APPENDIX 8 231
Response, p. 32; Canada’s March 1999 Submission, Section 3.8.1).

Negotiations under WUP may lead to additional measures to mitigate habitat problems in the reservoirs. No information was provided that any investigation has been undertaken to produce a

better understanding of the scope of the problem. No information

was provided by Canada concerning any efforts to address problems in the reservoir, or concerning the effectiveness of any such

efforts.

5.1.2 Allegation

110. Rapid fluctuations in flow cause stranding of fish below the Peace

Canyon project (Submitters’ April 1997 Submission, Appendix A,

p. 1).

Canadian Response

111. Canada acknowledges that DFO observed one instance of stranding of three fish on an active delta at the mouth of Johnson Creek,

and that fish stranding may also occur in the drawdown zone of

Williston Reservoir (Canada’s July 1997 Response, p. 33). DFO

requested that stranding on the Johnson Creek delta be addressed

by the compensation program but this was refused by the compensation program on the grounds that compensation works in the

delta would be of little value until upstream reaches were restored

(ibid.). Stranding is also an issue in Williston Reservoir because of

the large drawdown. Canada suggested that any stranding in the

Williston Reservoir would be partly offset by unspecified activities

of the compensation program (ibid.). Stranding has been an issue of

public concern in the Peace River downstream from the Peace

Canyon project (Canada’s July 1997 Response pp. 33, 35; BC Hydro

Fish Flow Overview Report # EA: 95-06, p. 49). Stranding downstream of Peace Canyon Dam was associated with low flows and

BC Hydro has voluntarily adopted a minimum flow of 10,000 cfs

below Peace Canyon dam to protect side channel habitat (Canada’s

July 1997 Response, p. 34; BC Hydro February 1999 Submission, p.

24). These flows will continue until there is a water use plan for

these facilities (Canada’s July 1997 Response, p. 35). In addition,

BC Hydro points out that by operating this facility as a peaking

facility the company is able to maintain much more stable flows in

coastal facilities that impact salmon producing streams (BC Hydro

February 1999 Submission, p. 24).

232 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Supplemental Information Requested

112. The Expert Group requested specific additional information from

Canada through the following questions (3 February 1999 Questions, p. 4):

a) What are the time lines for implementation of the ramping

rates during normal operations?

b) What information did Canada obtain to verify that

remediation of stranding would be of little value below

Bennett Dam?

c) To what extent are dewatering problems eliminated or

reduced below Peace Canyon at a minimum flow of 10,000

cfs?

d) There appear to have been limited enforcement actions

undertaken in relation to this facility. Please tell us why that

is so. To what extent have issues of cost or other factors

played a role in enforcement decisions?

e) What authorizations has Canada provided to BC Hydro with

respect to peaking flow fluctuations?

113. In response, Canada states that a review of ramping rates will be

undertaken (Canada’s March 1999 Submission, Section 3.8.2) but

gives no timetable for this or for implementing any changes. Canada provided no comment on the other issues raised by these questions.

Information Provided by the Expert Group

114. With regard to the allegation of fish stranding, Canada acknowledges that stranding has occurred and was especially a problem

downstream from the Peace Canyon dam. The BC Hydro Fish Flow

Overview Report suggests that these are long standing concerns

of both regulatory agencies and the public (BC Hydro Fish Flow

Overview Report # EA: 95-06, pp. 44-51). Stranding may also have

occurred in the reservoir during drawdown but Canada appears to

have no information about whether or how often this has occurred.

The allegations of fish stranding in Williston Reservoir have not

APPENDIX 8 233
been confirmed but neither have they been refuted. BC Hydro has

voluntarily increased flows downstream from Peace Canyon Dam

to mitigate problems of fish stranding downstream. The benefits of

this higher minimum flow in terms of fish stranding and access to

side channels are unclear. The authors of the BC Hydro fish flow

study indicate that, in tests of flows of 6,000 and 10,000 cfs (compared with 5,000 cfs), “Fish impacts similar to those observed in

1993 [incidents of fish stranding that aroused pubic concern] were

noted” (BC Hydro Fish Flow Overview Report # EA: 95-06, p. 49).

Stranding may also be more related to flow ramping rates than

absolute flows in many circumstances. Thus, fish stranding has

occurred and probably continues to occur under present operating

conditions of the facility.

115. Efforts have been made to address the problems of access to side

channels and stranding of fish downstream resulting in BC Hydro

voluntarily doubling the minimum flow downstream of the Peace

Canyon Dam. It is unclear if this “voluntary” action was in any

way a response to enforcement actions by DFO. Nor is it clear the

extent to which DFO conducted any analysis of stranding prior to

the voluntary action by BC Hydro, as its submission states only

that both DFO and MELP conducted investigations that prompted

BC Hydro to commission a study by a consultant into the impacts

of downstream flows (Canada’s July 1997 Response, p. 34). The BC

Hydro Fish Flow Overview Reportrefers to studies conducted in June

1994 at flows of 5,000, 6,000 and 10,000 cfs to improve stage discharge curves and determine critical elevations for fish access

to side channels (BC Hydro Fish Flow Overview Report # EA: 95-06,

p. 49). Possibly these are the studies to which Canada refers.

However, these studies raise concerns about the effectiveness of

10,000 cfs in mitigating the problems (see earlier comment). In connection with the forced 1996 spill, ramping rates for flow fluctuations were also investigated and Canada expects the results of

these studies to be incorporated into a ramping rate guideline to

be applied during spills (Canada’s July 1997 Response, p. 35).

Ramping rates will not apply to normal peaking operations of the

facility, which will be most of the time (ibid.). During peaking operations, water releases and water levels can fluctuate dramatically

over short periods of time. These rapid short-term fluctuations can

have detrimental effects on habitat and result in stranding or displacement of fish downstream from the power plant. The fact that

normal operating will not be governed by ramping rate rules casts

doubt on the effectiveness of ramping rate guidelines in mitigating

234 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
operational effects on habitat. Canada does not provide information as to the habitat impacts of water level changes during normal

operation. Thus, some attempt has been made to address the habitat problems downstream of Peace Canyon Dam. The effectiveness

of this attempt to date is questionable.

116. Based on the information provided, effective enforcement may be

hampered at these facilities by lack of basic information. Concerns

about stranding in the reservoir appear based primarily on anecdotal information. This could be cleared up with an appropriate

study to determine whether stranding occurs as reservoir levels

are dropped. Stranding downstream appears better documented

but the studies relating stranding to flows and variation in flow

appear inconclusive. An important study of ramping rates in 1996

has yet to be released and this study may provide information that

would be important for planning normal operating procedures as

well as procedures during a forced spill. The population level

effects of stranding and flow fluctuation for species affected

appear not to have been studied at all.

5.1.3 Allegation

117. Total Gas Pressure (TGP) is elevated below Peace Canyon project

(Submitters’ April 1997 Submission, Appendix A, p. 1).

Canadian Response

118. Elevated TGP occurs below Peace Canyon dam during spills of

excess water (Canada’s July 1997 Response, p. 33). As Williston

Reservoir is a multi-year storage facility, spills of water are relatively uncommon (ibid.). In the summer of 1996 there was a major

drawdown of Williston Reservoir for dam safety reasons that

caused elevated TGP below Peace Canyon dam and resulted in

Gas Bubble Trauma in fish (ibid.). DFO assisted BC Hydro in the

design of a study to determine the impact of the 1996 spill on fish

but the report on this study has not yet been released (ibid.). Prior to

1996 spills occurred in 1972 at Bennett dam and in 1983 and 1984 at

Peace Canyon dam (ibid.). Under normal operating conditions,

TGP levels are relatively low (likely in compliance with TGP

guidelines), however, thermal heating in the reservoir can cause

some elevation in gas pressures (ibid.).

APPENDIX 8 235
Supplemental Information Requested

119. The Expert Group requested specific additional information from

Canada through the following questions (3 February 1999 Questions, p. 4):

a) Please provide information as to Canada’s strategy (including time lines) for understanding the causes of serious, intermittent TGP problems and for addressing these problems.

b) What information does Canada plan to obtain to confirm the

causes of TGP and that TGP is not a problem under normal

operation of the facility and what are the time lines for obtaining this information?

c) Should it prove that TGP is a chronic problem, what would be

Canada’s response and what would be the time lines of that

response?

No additional information was provided by Canada on these

issues (Canada’s March 1999 Submission).

Information Provided by the Expert Group

120. With regard to the allegation of TGP problems associated with

operation of the facility, Canada and BC Hydro assert that significant TGP elevation occurs only during infrequent spills (Canada’s

July 1997 Response, p. 33; BC Hydro February 1999 Submission,

p. 24). Canada acknowledges that elevated TGP and gas bubble

trauma in fish occurred with the 1996 spill (Canada’s July 1997

Response, p. 33). Canada states that, “Under non-spill situations

TGP levels are relatively low (likely in compliance with TGP

guideline) . . .” but provides no evidence to support this statement.

It appears undisputed that high TGP values have occurred and

will continue to occur during spills. Elevated TGP under normal

operation is disputed by Canada and there is no factual evidence

for or against.

121. With regard to enforcement, Canada states that DFO assisted BC

Hydro in developing terms of reference for a study plan of TGP

effects related to the 1996 spill, the results of which have not yet

been released (ibid.). No information was provided as to why there

has been a two-year delay in publication of this study. Canada does

236 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
not provide any information as to enforcement actions related to

elevated TGP at other times for this set of facilities, nor does Canada provide any statement of how it plans to address TGP problems at the facility. Thus, TGP problems have occurred and they

have caused harm to fish habitat. Based on information provided,

the government response has been to assist in developing terms of

reference for a study plan that has not been released.

5.1.4 Allegation

122. Operation of these facilities appears to cause sediment problems

(Submitters’ April 1997 Submission, Appendix A, p. 1).

Canadian Response

123. Canada stated that it was unaware of any sediment problems

downstream of Bennett dam caused by facility operation (Canada’s July 1997 Response, p. 33). Two tributaries discharge sediment into Dinosaur Lake during storm events and wave action in

Williston Reservoir during drawdown may cause elevated sediment levels in the reservoir that possibly impact fish (ibid.). These

effects are offset by unspecified activities of the compensation program (ibid.). As a general proposition, Canada and BC Hydro

assert that reservoirs act as settling basins and actually reduce turbidity levels downstream (ibid.; BC Hydro February 1999 Submission, p. 24).

Supplemental Information Requested

124. The Expert Group requested specific additional information from

Canada through the following questions (3 February 1999 Questions, p. 5):

a) Is Canada suggesting that the sediment problems below

Bennett Dam are all natural events?

b) What information does Canada have that sediment problems

in Williston Lake are mitigated?

c) What plans does Canada have to determine whether there

are erosion problems impacting fish in Williston reservoir

and the effectiveness of any remediation?

APPENDIX 8 237
No additional information was provided by Canada on these

issues (Canada’s March 1999 Submission) except to say that vegetation of portions of the drawdown area in Williston reservoir

would help increase fish production.

Information Provided by the Expert Group

125. With regard to the allegation of sediment problems, Canada states

that it is not aware of any problems. Canada acknowledges that

tributaries discharge sediment into Dinosaur Reservoir and wave

action may create sediment problems that impact fish in Williston

Reservoir, but Canada indicates that it is not aware of such problems. The BC Hydro Fish Flow Overview Report notes that mobilization of sediments in the drawdown zone of Williston Reservoir is

an issue of public concern (BC Hydro Fish Flow Overview Report

# EA: 95-06, p. 46). It should be noted that there are several kinds of

sediment problems associated with hydro dams, so that it is important to distinguish among these when discussing the impacts of the

project. Potential sedimentation problems associated with dams

include:

• Trapping of sediment moving downstream in the reservoir so

that river reaches downstream from the dam are starved of sediment and degrade to bedrock.

• Resuspension of fine sediments when the reservoir is drawn

down due to wave action on exposed beaches. This sediment

can have localized effects on reservoir productivity and/or can

be carried downstream.

• Blockage of reservoir tributary access by fish due to sediment

dams when the reservoir is drawn down.

• Unnatural aggradation and degradation patterns and dynamics

downstream from the reservoir due to the altered hydrography

of the river. These can lead to blockage of side channel and tributary access by debris and sediment fans, straightening and simplification of channel morphology, and downcutting of the

channel to bedrock. Neither the allegation nor the Canadian

response was entirely clear about which problems were being

discussed.

238 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
126. There is information that sedimentation problems have occurred

in the past and continue to occur as part of the normal operation of

these facilities but the extent and seriousness of these problems has

not been determined.

127. In terms of enforcement, Canada suggests that any effects in

Williston Reservoir are in part mitigated by unspecified actions

under the compensation program (Canada’s July 1997 Response,

p. 33). No information was presented, however, to show that

the compensation program was addressing sedimentation issues.

According to Canada’s March 1999 submission (p. 36), revegetation of the drawdown zone is an option to be considered under

WUP.

5.1.5 Allegation

128. Lack of flushing flows downstream from Peace Canyon has caused

the river to abandon side channels (Submitters’ April 1997 Submission, Appendix A, p. 1).

Canadian Response

129. Canada appears to acknowledge that there may be habitat problems caused by the absence of flushing flows downstream from the

Peace Canyon dam and suggested that the forced spill in 1996 for

dam safety reasons brought flows back to channel shaping levels

and may have improved the situation (Canada’s July 1997

Response, p. 35). The benefits of these flows may be determined

from continuation of geomorphology surveys conducted by University of British Columbia professor, M. Church (ibid.).

Supplemental Information Requested

130. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions, p. 5):

a) Does Canada have a policy or an opinion regarding flushing

flows in maintaining the quality of fish habitat?

b) What plans does Canada have to study, monitor and ensure

that habitat degradation due to lack of flushing flows does

not significantly impair fish production in this system?

APPENDIX 8 239
131. Canada did not directly address either of these questions. In its

response, Canada noted that it will expect that the minimum flow

of 10,000 cfs will be maintained. This is not a flushing flow, however, but a maintenance flow. Canada stated that an assessment of

the benefits of higher discharges and flushing flows will be undertaken (Canada’s March 1999 Submission, Section 3.8.2) (Flushing

flows are high discharges that have the power to shape the river

channel. These are normally flows of at least twice the average

daily discharge that existed prior to any river modification). Canada also notes that entrainment at both generating facilities is an

issue that will be addressed and a mitigation plan developed

(ibid.). A range of habitat restoration activities in the lower river

will also be considered (ibid.). No information was provided as to

when these future activities will occur.

Information Provided by the Expert Group

132. With regard to the allegations of habitat loss associated with the

absence of flushing flows, Canada acknowledges that these effects

may have occurred and that they are documented in a consultant

report (Canada’s July 1997 Response, p. 35). Indeed, these kinds of

habitat losses are commonly associated with the operation of

hydroelectric facilities and the BC Hydro Fish Flow Overview Report

lists flushing flows as one of the most important instream flow

issues downstream of Peace Canyon (BC Hydro Fish Flow Overview

Report # EA: 95-06, p. 51). The information provided shows that

habitat degradation due to lack of flushing flows has occurred and

continues to occur as a result of normal operation of this facility.

133. With regard to enforcement, Canada states that the benefits of

flushing flows will be considered in the context of WUP as will

habitat improvement opportunities in side channels (Canada’s

March 1999 Submission, Section 3.8.2). Canada offers no indication

as to what information will form the basis of such a consideration

apart from an expressed hope that an ongoing study by a university professor may tell something about flushing flow effects from

the 1996 spill. The planned study of discharge impacts, entrainment and habitat restoration opportunities in the lower river are

part of a set of future expectations, not part of an ongoing enforcement plan. No timetable is given for these activities and no indication is given of what action might follow from the proposed

240 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
studies. There has been little if any enforcement action to address

harm to fish habitat associated with lack of flushing flows.

5.1.6 Allegation

134. Temperatures have been altered downstream as a result of project

operation (Submitters’ April 1997 Submission, Appendix A, p. 1).

Canadian Response

135. Canada acknowledges that water temperatures downstream from

Peace Canyon dam have been altered by these projects but argues

that the effects of these changes are complex and would have to be

worked out before any mitigation could be justified (Canada’s July

1997 Response, p. 35).

Supplemental Information Requested

136. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions, p. 6):

a) What information does Canada have with regard to temperature

changes? What are Canada’s plans (including time lines) for collecting more information regarding temperature changes and for

addressing harmful impacts that such changes have on fish habitat?

No additional information was provided by Canada on this issue

(Canada’s March 1999 Submission).

Information Provided by the Expert Group

137. Canada acknowledges that temperatures have been altered downstream from the Peace Canyon but asserts that the impacts of these

changes are complex and not easily worked out. The BC Hydro Fish

Flow Overview Report states that, because of hypolimnetic water

withdrawal from Williston Reservoir, water temperatures downstream are higher in winter and lower in summer than under natural conditions (BC Hydro Fish Flow Overview Report # EA: 95-06, p.

51). The magnitude of the temperature change is not reported but

could be several degrees C. If there are temperature changes of several degrees C, they could have significant impacts on fish species

such as: 1) the acceleration of incubation of eggs of fall spawning

APPENDIX 8 241
species; 2) increased metabolic rates and energy exhaustion in

overwintering individuals; 3) slower growth rates of all species in

summer; 4) lower food production in the river. The facts show that

altered temperatures downstream of Peace Canyon Dam is an

ongoing problem associated with operation of these facilities.

138. With regard to enforcement, Canada provides no indication that

any attempt has been made to work out the complex effects of temperature alteration or to develop a strategy for mitigating any

adverse effects. Thus, enforcement related to temperature changes

has not occurred based on the information provided.

Summary of Information Regarding Bennett/Peace

139. The operation of the Bennett and Peace Canyon dams has caused

and continues to cause harm to fish habitat. Habitat and fishery

impacts associated with the operation of this facility have occurred

in the past and are ongoing. The habitat issues raised by the Submitting Parties are all listed in the BC Hydro Fish Flow Overview

Report (BC Hydro Fish Flow Overview Report # EA: 95-06) and were

not seriously challenged by Canada. The Expert Group posed a

number of specific questions to Canada and BC Hydro concerning the operation and impacts of these facilities (see above). The

response provided by Canada with supplemental information

from BC Hydro failed to address in a substantive way many of the

questions posed by the Expert Group. The information provided

indicates that Canada has not devoted many resources to evaluating the fish habitat implications and mitigation needs of this set of

facilities. This seems surprising, as this is one of the largest hydroelectric facilities in Canada and impacts an inter-provincial waterway. Williston reservoir is the largest in BC and one of the largest in

Canada and contains significant fishery resources. The downstream effects of these facilities are a subject of considerable concern to First Nations and facility operation may be contributing to

adverse ecological changes in the Peace-Athabasca Delta, a world

heritage site. Furthermore, fish and environmental conditions in

the Peace River were the subject of considerable investigation as

part of the Northern River Basins Study, funded by Canada under

the Canada Water Act. The Expert Group is familiar with this study

because one of its members served on the science advisory committee to the study. Canada does not appear to draw on the infor242 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
mation gathered as part of this multimillion dollar study to assist it

in evaluating the impacts of the dams and dam operation.

Although Canada acknowledges problems associated with the

Peace River facilities, neither Canada nor BC Hydro provided

much hard information concerning the nature of government

actions taken to address these problems, or concerning the effectiveness of these actions. As with many hydro—fishery-related

issues, Canada indicates that it will deal with these issues in

future negotiations with BC and other stakeholders in development of Water Use Plans. How effectively WUP will address fishery related issues at these facilities cannot be foretold. Enforcement

of Section 35 has been limited at these facilities.

140. Canada provides several reasons for its limited involvement with

habitat issues at the Peace River facilities. It points out that it has

entered into an arrangement with British Columbia “whereby provincial fish and wildlife staffs manage freshwater fisheries and the

federal Department of Fisheries and Oceans manage tidal and

anadromous fisheries (excluding steelhead and sea-run cutthroat

trout).” (Canada’s March 1999 Submission, Section 1.3). It also

notes that DFO did not establish its Eastern BC Habitat unit until

1990, and that the facilities were constructed before section 35 of

the Fisheries Act was enacted (Canada’s July 1997 Response, p. 32).

141. The Expert Group acknowledges the concern raised by the

Athabasca First Nation about significant downstream impacts in

the Peace-Athabasca Delta, which is a traditional hunting area and

a world heritage site. Impacts of altered flows in the Peace River on

the Peace-Athabasca Delta have been investigated in a number of

other studies (Peace-Athabasca Delta Implementation Committee

(Canada, Alberta, Saskatchewan, 1987), Northern River Basins

Study (Canada, Alberta, NWT, 1996), Parks Canada (Wood Buffalo National Park, 1997)). While we acknowledge the seriousness

of these impacts, we will not be addressing them in our Report. The

concerns of the Athabasca First Nation were not raised by SLDF

and were not among the issues CEC identified in its Notification to

the Council. Further, developing a factual record on the impacts of

the operation of the Bennett Dam on the Delta would be a monumental task. This is not to minimize the importance of any alleged

downstream impacts and readers are referred to the investigations

noted above for additional information.

APPENDIX 8 243
5.2 Keenleyside Dam (Norns Creek fan)

5.2.1 Allegation

142. Operation of the Keenleyside Dam dewaters whitefish habitat and

causes mortality (Submitters’ April 1997 Submission, p. 5).

Complete shut down in April 1990 dewatered and stranded rainbow trout and kokanee fry on the downstream Norns Creek fan

(ibid.).

As both these allegations relate to reductions in flow downstream

from the dam which dewaters habitat they are dealt with together.

Canada’s Response supplemented by

information from BC Hydro

143. Canada acknowledges that flow releases downstream of

Keenleyside Dam during November to April can reduce spawning

habitat and dewater eggs of spawning whitefish and that subsequent flows, from April to June can cause similar problems for

spawning rainbow trout (Canada’s July 1997 Response, p. 26). It is

undisputed, therefore, that loss of spawning and incubation habitat downstream of Keenleyside Dam is an ongoing problem.

144. With regard to enforcement, Canada states that, since creation of

its eastern BC unit in 1990, it has been able to negotiate significant

improvements in the flow regime below Keenleyside Dam (ibid.).

Canada states that during the critical December to April period,

Canada’s representatives closely monitor and require assessment

of flows on downstream fish and their ova (ibid.). During weekly

teleconferences, Canada is apprised of results from continual field

monitoring of whitefish spawning, whitefish egg development

and predicted flow releases (ibid.).

145. As evidence that it takes protection of spawning fish and incubating eggs seriously, Canada cites a 9 February 1995, flow order from

DFO to BC Hydro preventing BC Hydro from reducing flows from

24,000 to 18,000 cfs below Keenleyside Dam (ibid.; Columbia River

February 1995 Flow Order).

146. Canada also notes that on 30 December 1994, DFO notified BC

Hydro that a proposed flow reduction below Keenleyside Dam

244 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
would not be authorized except under strict conditions and alerted

BC Hydro to the possibility of prosecution (Canada’s July 1997

Response, p. 16). Flow was reduced and whitefish eggs were

killed. An investigation was initiated by MELP but no charges

were laid (ibid.).

147. As evidence that its efforts in monitoring and negotiating flows

with BC Hydro are paying off Canada asserts that the flow regime

during the 1996-1997 spawning season is considered to be the “best

yet” for the maintenance of mountain whitefish spawning habitat

(Canada’s July 1997 Response, p. 26).

148. Rainbow trout spawn below Keenleyside Dam in spring with peak

spawning and incubation from April to June (Canada’s July 1997

Response, p. 26). Flow from Keenleyside Dam is typically reduced

in late March-early April (ibid.). Canada and BC Hydro have a

working agreement to maintain or increase flows during April to

June to ensure adequate rainbow trout spawning habitat and prevent dewatering of incubating eggs (ibid.). Any eggs deposited

prior to April which are in danger of dewatering are salvaged

(ibid.). In March 1993 Canada wrote to BC Hydro informing Hydro

that DFO had observed dewatered trout redds on Norns creek fan

and required BC Hydro to submit to DFO a flow proposal to

address spawning and incubation requirements and a mitigation

plan to protect existing redds or ova (Canada’s July 1997 Response,

p. 17). On 28 March 1994, Canada authorized a pilot study of

recontouring the Norns Creek Fan to improve fish habitat (Canada’s July 1997 Response, p. 26). Fish utilized the pilot area and

eggs were successfully incubated (ibid.). In addition, trout were

prevented from spawning further downstream in areas likely to

dewater by surrounding such areas with exclusion fencing (ibid.).

149. At Canada’s initiative, the Columbia Operations Fisheries Advisory Committee (COFAC) was created (ibid.). This committee

meets on an ad hoc basis to undertake strategic planning on,

among other things, hydro-fisheries issues in the Canadian portion of the Columbia Basin (ibid.). The objective is to ensure that

projects within Canada are operated to maximize benefits to Canada and BC within the terms of prevailing laws, treaties and agreements (Canada’s July 1997 Response, p. 27). This committee has

finalized the draft Columbia River Flow Regime Principles to protect fishery resources downstream of Keenleyside Dam (ibid.).

APPENDIX 8 245
Supplemental Information Requested

150. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions, p. 6):

a) What is the nature of the monitoring and assessment (of

flows during whitefish spawning and incubation)?

b) Despite the monitoring, etc., are there still instances of egg

mortality caused by Keenleyside operation? If so, what are

their frequency and their magnitude?

c) What does “best yet” mean in relation to expected survival

and maintenance of mountain whitefish spawning habitat?

d) What evidence is there that survival have improved since the

creation of the Eastern BC unit and the commencement of

the Fish Information Group and to what degree have they

improved?

e) What plans does Canada have to proceed with further modification to Norns Creek fan?

f) How does the reconstructed portion of the fan compare with

other locations in terms of density of fish spawning and survival of eggs?

151. In its response, Canada did not address these questions directly.

It did not provide information concerning the nature of monitoring and assessment. It did not provide information concerning

whether Keenleyside continues to cause egg mortality or concerning the frequency and magnitude of such impacts. It similarly

provided no information concerning the other questions asked.

Rather, Canada asserted that its general efforts to negotiate

improved conditions for fish downstream from Keenleyside are

continuing, including additional unspecified whitefish habitat

enhancement and continued use of COFAC to resolve unspecified

issues (Canada’s March 1999 Submission, Section 2.4.1). Two specific actions were mentioned. A December 1997 authorization for

BC Hydro to reduce flows to increase overall whitefish egg survival at the expense of a lesser number of eggs (the latter losses

requiring unspecified compensation) (ibid.). And, initiation of an

adaptive Multispecies Management Model for the Columbia River

246 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
below Keenleyside to link facility operations with key fish populations so as to assess the potential impact of water management

regimes, present uncertainties and develop an experimental program to address uncertainties (ibid.).

Information Provided by the Expert Group

Regarding Keenleyside Dam

152. Canada is aware of the problems created for spawning whitefish

and trout downstream of Keenleyside Dam and it is aware that

these are ongoing problems associated with operation of

Keenleyside Dam. It is undisputed that habitat damage has

occurred at this facility and continues to occur under normal operating procedures.

153. With regard to enforcement, Canada is attempting to address these

problems and other fishery-related issues through negotiation

directly with BC Hydro and with other interests in COFAC. These

are positive steps and Canada asserts that they have resulted in

considerable improvement in flow regimes for fisheries conservation. Canada’s negotiations with BC Hydro appear to have

resulted in improved habitat conditions. Failure to follow through

on enforcement threats, however, weakens Canada’s position in

enforcement negotiations. A clear example of this is the 1994 flow

reduction noted above, in which Canada alerted BC Hydro to

the possibility of prosecution if flows were reduced, BC Hydro

reduced flows anyway, and Canada did not initiate a prosecution.

154. Little specific information was provided about habitat conditions

and enforcement at Keenleyside Dam that would allow an independent observer to review the effectiveness of enforcement measures. The models, cognitive or otherwise, that DFO uses to assess

the effects of altered flow regimes are not specified. The proposal

to develop an adaptive management model for the Columbia

below Keenleyside hints at the existence of specific data and models but these were not provided to the Expert Group.

155. Enforcement of the Fisheries Act with respect to fish habitats below

Keenleyside Dam and with respect to the specific allegations of

SLDF is a “work in progress” constrained by limited information,

limited resources, international treaty obligations and issues of

higher priority (such as flood control). Canada is obviously cogniAPPENDIX 8 247
zant of the habitat problems raised by SLDF and is attempting to

address them by a variety of means. Applying Canada’s definition

of effective enforcement as involving no net loss of habitat, however, it is not possible for the Expert Group to review the extent to

which Canada’s enforcement has been effective. No clear baseline

against which to judge changes in habitat was provided, nor was

any clear model or organized database for assessing impacts or

determining changes.

156. An additional positive measure, of which we are aware but which

Canada did not raise, involves plans to arrest a dramatic decline in

Kokanee in the reservoir by fertilization of the reservoir. If this

occurs, it would be a positive response to a fishery problem.

5.3 Shuswap Falls

5.3.1 Allegation

157. Low winter flows dewater spawning areas and have negative

effects on incubating eggs (Submitters’ April 1997 Submission,

p. 5).

Canada’s Response supplemented by

information from BC Hydro

158. Canada acknowledges that operation of this reservoir has jeopardized incubating salmon eggs and that in 1991 spawning nests

were dewatered during winter low flows (Canada’s July 1997

Response, p. 29). The BC Hydro Fish Flow Overview Report indicates

that impact of low winter flows on incubating eggs downstream

from Wilsey Dam has been a long standing problem (BC Hydro Fish

Flow Overview Report # EA: 95-06, p. 62). A rule curve was developed in 1993 that would protect fish spawning downstream. BC

Hydro indicated in 1994 that it did not want to use the rule curve

because it drafted the reservoir level too low, used historic data

that BC Hydro did not consider reliable, and used a date after

many salmonids had spawned to determine winter conditions so

that available incubation flows might be insufficient. BC Hydro

suggested alternative flows (Canada’s July 1997 Response, p. 29).

Canada has responded verbally that BC Hydro flows are not

acceptable and Canada wishes to continue with the rule curve

(ibid.).

248 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Supplemental Information Requested

159. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions, p. 7):

a) What rules presently govern winter releases from the

Shuswap Falls project?

b) If the rule curve developed in 1993 is still the means by which

flow decisions are made, has any further analysis of the effectiveness of the flow regimes based on this curve been undertaken beyond that conducted by Triton in 1993-94?

c) How effective was this action (developing a rule curve) in

ensuring the termination of low water flows with negative

impacts on fish habitat and therefore on incubating eggs?

d) Given the critical state of interior coho stocks, what information/measures are in place/planned to determine and, if

necessary, remediate any impacts of Shuswap Falls on coho?

160. In response Canada asserts that it manages flows from Sugar Lake

and Downstream of Wilsey dam cooperatively with MELP and BC

Hydro to provide power production and protect fish habitat and

that this requires frequent communication between DFO and BC

Hydro (Canada’s March 1999 Submission, Section 2.2.3). Flows are

managed on a real-time basis accounting for previous flow rates,

snow pack, climate information, reservoir levels and fish and fish

habitat requirements (ibid.). BC Hydro further asserts that operation of the facility is based on rule curves developed jointly by

DFO, BC Hydro and MELP to provide water for maintenance of

spawning and rearing habitat. (BC Hydro February 1999 Submission, p. 25). The rule curves are reviewed annually by DFO and

MELP and have resulted in maintenance of improved discharges

and more available habitat for fish during normal low inflow periods. BC Hydro asserts that the present flows are an improvement

over natural flows (BC Hydro February 1999 Submission, p. 25).

BC Hydro has also provided funding for construction of side channel and off-channel projects to improve rearing habitat downstream of Wilsey Dam (Canada’s March 1999 Submission, Section

2.2.3). No quantitative information was provided on the effectiveness of these activities.

APPENDIX 8 249
161. Canada further asserts that a WUP will likely be developed for this

facility from mid 1999-late 2001. Baseline conditions for this facility

established by DFO include provision of a minimum flow (not

specified) plus an annual six-week shut down of the plant to provide for flow storage. Potential improvements to be negotiated

under WUP include increased minimum flows and adjustments to

flows to represent a normal hydrograph, possible decommissioning of Wilsey Dam, improved fish passage over Wilsey and Peers

Dams, and provision of a natural hydrograph downstream from

Sugar Lake (Canada’s March 1999 Submission, Section 3.5.3).

Information Provided by the Expert Group

162. Canada acknowledges that there have been instances of harmful

habitat alteration due to low winter flows at Shuswap Falls. Materials provided suggest that this has been an ongoing problem. Canada is working with BC Hydro to reduce or minimize these

impacts. Rule curves have been developed jointly with MELP and

BC Hydro in an attempt to meet both power production objectives

and fish habitat protection. (Note: A rule curve is a set of seasonally

adjusted criteria for determining acceptable flows usually based

on some combination of natural flow patterns, flow requirements

for environmental protection, and flow requirements for other

uses. The “rules” on which the curves for Shuswap Falls are based

were not provided to us.) The rule curves are apparently reviewed

on a regular basis and Canada states that flows are also managed

on a real time basis. “Real time” flow management suggests that

adjustments to the rule curves may be made at any time depending

on current conditions and future projections of water availability.

Whether this means that habitat protection is sometimes compromised for power production as well as vice versa is not clear from

the materials presented. BC Hydro has also funded a number of

habitat improvement projects downstream from Wilsey Dam.

163. Although both the Canada and BC Hydro submissions point to a

considerable effort to improve habitat conditions downstream of

Wilsey Dam, there appears to be little hard information on the

effectiveness of those actions. In particular, the Canadian submission does not mention any monitoring of Coho salmon in the

Shuswap River. Coho stocks are in an especially depressed state.

Such information is important to evaluate how well monitored and

managed the Shuswap River and its habitat is. The additional

250 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
measures to be negotiated under WUP (improved flows,

improved passage and access to habitat upstream from Wilsey

Dam) reflect Canada’s view that the system has potential to be

more productive. These improvements are future expectations,

however, not something that has in any way been realized.

164. For this facility as with the others, the lack of any quantitative

assessment of improvements to habitat resulting from DFO actions

makes it difficult to review effectiveness. Information such as the

long term changes in abundance of fish stocks downstream from

Wilsey Dam, identification of the effects of altered flow regimes as

opposed to other kinds of human impacts, and some measure

of the incremental improvement in habitat and/or production

potential associated with altered flow regimes and habitat restorations/construction, illustrate the kinds of information that are relevant regarding the overall impact of the project and the benefits of

enforcement actions. The Expert Group had anticipated that some

quantitative data relating to these issues would be provided in

response to our request for additional information. As it was not

we can only conclude that such information does not exist.

5.3.2 Allegation

165. Rapid flow fluctuations negatively impact fish downstream (Submitters’ April 1997 Submission, p. 5).

Canada’s Response supplemented by

information from BC Hydro

166. Canada acknowledges that harm to fish habitat, such as stranding

of fish, has resulted from rapid flow fluctuations (Canada’s July

1997 Response, pp. 29-30, 36). In the summer of 1994, BC Hydro

ramped down flows at a rate considered excessive by DFO. DFO

requested an assessment and salvage of any stranded fish. BC

Hydro contracted the salvage but it was not initiated until 12 days

after the drop in flows, eliminating the possibility of any successful

salvage of fish (ibid.).

167. In both 1995 and 1997, DFO was given only one or two days notice

of changes in operation that would necessitate large changes in

flow. This was insufficient time to set up proper monitoring of flow

changes (Canada’s July 1997 Response, p. 31). The fluctuations can

APPENDIX 8 251
result from Gate changes at Peers Dam, power outages at Wilsey

plant or installation and removal of flashboards at Wilsey dam

(Canada’s July 1997 Response, pp. 29, 31).

168. In response to these problems, Canada has repeatedly advised BC

Hydro verbally and in writing that ramping rates must not be

excessive (Canada’s July 1997 Response, pp. 30, 36). Canada has

specified acceptable ramping rates for flow changes and has

charged BC Hydro with meeting these rates. However, Canada

also describes a range of technical problems that BC Hydro has

faced in ensuring that these are implemented (ibid.). A study was

conducted in 1995-96 to determine the effectiveness of the ramping

rates that Canada has specified (ibid.). BC Hydro has verbally

advised that the ramping rates specified by DFO have been met but

DFO has not monitored this (Canada’s July 1997 Response, p. 31).

DFO is awaiting the final report on the 1995-96 study before making further recommendations (ibid.). In the meantime DFO expects

BC Hydro to adhere to its recommended ramping rates (ibid.).

Although ramping rates are clearly an issue for DFO, BC Hydro

asserts that, because the plant is flat-loaded for the benefit of fish,

there is no need for a minimum flow or a ramping process at the

Wilsey Dam (BC Hydro February 1999 Submission, p. 25).

Supplemental Information Requested

169. Specific additional information was requested from Canada

through the following questions (3 February Questions, p. 8):

a) Given the problems referred to in the Canadian response, to

what degree have the ramping rates specified by Canada

been met by BC Hydro?

b) How effective was Canada’s action (specifying ramping

rates) in terms of ensuring that rapid flow fluctuations do not

negatively impact fish habitat?

c) What steps have been taken to address some of the technical

problems, particularly those with the Howell Bunger valve?

170. In response, Canada states that it is working collaboratively with

MELP and BC Hydro to address operational issues and habitat restoration (Canada’s March 1999 Submission, Section 2.2.3). DFO,

252 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
with funds provided by BC Hydro, has constructed side and

off-channel projects downstream of Wilsey dam for coho, chinook

and other salmonids (ibid.). Although these actions are positive,

they do not specifically address the questions posed.

Information Provided by the Expert Group

171. Canada acknowledges that rapid flow fluctuations at Shuswap

Falls have caused harm to fish habitat. Canada has been working

with BC Hydro to reduce or minimize these impacts. Canada’s

description of events in recent years suggests that BC Hydro has

not always responded in ways that would help minimize the

impacts on fish habitat (see paragraph above, for example). A

number of specific actions have been taken and these actions are

positive. There appears to be little hard information on the effectiveness of those actions. DFO is awaiting results of a study on the

effectiveness of ramping rates done by consultants to BC Hydro

several years ago. In the interim DFO expects BC Hydro to meet its

specified ramping rates but does not state whether or how it monitors this. Thus, there is no information as to the degree to which the

ramping rates specified by Canada have been met by BC Hydro.

There is also no information as to how effective Canada’s action of

specifying ramping rates has been in terms of ensuring that rapid

flow fluctuations do not negatively impact fish habitat, and there is

no information as to the steps taken to address technical problems.

172. The consultant’s report on the 1995, 1996 ramping study appears

crucial to an assessment of the effectiveness of the ramping rates

that DFO has specified. It is unclear why this report has not yet

been produced.

5.3.3 Allegation

173. Configuration of the dam has led to increased sediment levels

(Submitters’ April 1997 Submission, p. 5).

Canada’s Response supplemented by

information from BC Hydro

174. Sediment accumulates upstream of Wilsey Dam. Since 1993, BC

Hydro has been removing this sediment by suction dredging and

depositing the spoil in a settling pond. Canada has specified that

APPENDIX 8 253
removal of this sediment should not result in an increase of sediment load above background levels in the river by more than 25

mg/l in spring and summer and 0 mg/l in fall and winter (Canada’s July 1997 Response, p. 31). Sediment levels are monitored by

BC Hydro and discharges of sediment have not been excessive

(ibid.). BC Hydro asserts that it is removing the sediment to preserve the quality of the downstream habitat (BC Hydro February

1999 Submission, p. 25).

Supplemental Information Requested

175. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions, p. 8):

a) Have there been instances of sediment discharge unrelated to

removal operations? If so, how frequent, when and in what

amounts?

b) Please describe the steps taken to ensure that sediment discharge is not harmful to fish.

No additional information was provided on these issues.

Information Provided by the Expert Group

176. It appears that in Canada’s view the problems with sediment relate

only to the program of sediment removal from the face of the dam.

Historically, sediments were flushed out of the headpond behind

Wilsey Dam by flushing them downstream during high discharge

with probable impacts on incubating eggs and fish (BC Hydro Fish

Flow Overview Report # EA: 95-06, p. 61; Fisheries and Aquatic Sciences

1991 Report # 2093, Impacts of the Operation of Existing Hydroelectric

Developments on Fishery Resources in British Columbia, Vol. I, Anadromous Salmon, by S.M. Hirst, hereafter referred to as Fisheries and

Aquatic Sciences 1991 Report # 2093). Thus, there appear to have

been historic problems with sedimentation but it is not clear if

these are ongoing.

177. Canada has dealt with the issue of sediment accumulation behind

Wilsey Dam by specifying when and how BC Hydro can remove

sediment and setting a limit on the sediment load in the river during sediment removal. BC Hydro is responsible for monitoring and

reporting on sediment levels in the river during removal opera254 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tions. There is no information concerning whether or not there are

still problems with sedimentation at this facility. Provided the

maximum sediment levels set by Canada are being met and provided there are no sediment problems outside the irregular periods of sediment removal, sedimentation impacts on fish habitat

should not be an issue at this facility.

5.3.4 Allegation

178. Reservoir fluctuations affect benthic productivity and reduce

access to Sugar Lake tributaries (Submitters’ April 1997 Submission, p. 5).

Canada’s Response supplemented by

information from BC Hydro

179. Canada and BC Hydro both appear to acknowledge that these allegations may be true. They also state that impacts of reservoir fluctuations on invertebrates and tributary access have not been

examined (Canada’s July 1997 Response, pp. 31-32, BC Hydro Fish

Flow Overview Report # EA: 95-06, p. 59; Fisheries and Aquatic

Sciences 1991 Report # 2093).

180. Canada does not appear to have done anything to address issues in

the reservoir. MELP requested that the effects of ramping on invertebrates be made part of the Shuswap River ramping study in

1995-96 but this was not included in the terms of reference for the

study by BC Hydro (Canada’s July 1997 Response, p. 31).

Supplemental Information Requested

181. The Expert Group requested specific additional information from

Canada through the following question (Expert Groups 3 February 1999 Questions, p.8):

a) What plans does Canada have to investigate and address

these issues and what are Canada’s time lines for taking such

action?

No additional information was provided on this issue.

APPENDIX 8 255
Information Provided by the Expert Group

182. As there are no data on these issues it is unclear whether reduced

reservoir productivity and impacts on tributary access do occur.

However, the operating range of Sugar Lake reservoir is about 8 m,

which makes it probable that both allegations are true. Canada has

done little to determine the nature and extent of the problem. Any

reservoir related impacts at this facility appear to be low priority

for DFO and any actions related to the reservoir appear to have

been left up to MELP.

Summary of Information Regarding Shuswap Falls

183. Canada acknowledges that harmful alterations to fish habitat have

occurred at the Shuswap Falls facility and that harmful impacts

continue to occur.

184. As with Keenleyside Dam, Canada is working cooperatively with

BC Hydro to address fish habitat issues at Shuswap Falls.

Although there is a lack of clarity concerning application of the rule

curve, it is obviously Canada’s view that significant progress has

been made. Although the actions taken are positive, information

on the effects of those actions is largely anecdotal. This does not

mean there are no data (for example, data are presumably available on sediment loads from BC Hydro reports), only that none

were presented to us. Although the Expert Group expected that its

questions would elicit clear and quantitative answers, in many

instances the questions were not specifically addressed. This has

made it difficult to provide information regarding Canada’s

enforcement with regard to this facility.

185. Using Canada’s own criterion of effective enforcement, no net loss

of habitat, it is not clear whether Canada’s actions have been effective. The baseline conditions sketched for the WUP (provision of

minimum flows and six week plant shut down to provide water

storage for unspecified purposes) do not deal in a comprehensive

way with the range of issues at this facility (for example, habitat

loss due to lack of channel shaping flows, problems in the reservoirs). Compared to such a narrowly defined baseline, enforcement may have been effective by Canada’s definition but is

probably not reflective of historic productivity of this system. The

additional improvements to be negotiated under WUP (improved

flows, improved passage and access to habitat upstream from

256 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Wilsey Dam) reflect Canada’s view that the system has potential to

be more productive. These improvements are future expectations,

however, not something that has in any way been realized.

186. Most emphasis by DFO has been on the river downstream from

Wilsey Dam, which is where the anadromous salmon spawn.

Both flow conditions and physical habitat appear to have been

improved downstream but no quantitative assessment of the habitat benefits was provided. The effects of these habitat improvements on coho are particularly important given the depressed state

of interior coho stocks. It is not clear from the information provided how well monitored and managed the Shuswap River coho

and their habitat are and how recent improvements in flow and

habitat may have impacted coho.

5.4 Cheakamus

5.4.1 Allegation

187. Downstream fish populations are negatively impacted by insufficient flow and rapidly fluctuating flows (Submitters’ April 1997

Submission, p. 5).

Canada’s Response supplemented by

information from BC Hydro

188. Canada did not dispute the allegation above (Canada’s July 1997

Response, p. 28). On 2 May1997, Canada issued a flow order to BC

Hydro with respect to Daisy Lake Dam for the purpose of ensuring

adequate flow to protect fish and fish habitat (ibid.). BC Hydro

applied for judicial review of this order and, at the time of Canada’s response to the SLDF allegations, this matter was before the

courts. Canada, therefore, declined to comment further (ibid.).

Supplemental Information Requested

189. When the Expert Group began its deliberations, Canada and BC

Hydro had settled BC Hydro’s court challenge to DFO’s flow

order. As a consequence, the following questions relating to fish

flows in the Cheakamus were posed:

a) What are the impacts of insufficient flow and rapidly fluctuating flows (in the Cheakamus)?

APPENDIX 8 257
b) What does the flow order require?

c) What has been the impact of the flow order in ensuring

adequate flow to protect fish and fish habitat?

d) Please describe any other actions the government has taken

to address these problems.

e) Considering that problems with fish habitat due to the operation of the Daisy Lake dam have been a long-standing issue in

the Cheakamus River, please explain why Canada issued its

flow order to protect fish in 1997.

f) What actions other than flow remediation has Canada undertaken with respect to the Cheakamus to satisfy the no net

loss/net gain provisions of the federal policy on fish habitat?

190. The impact of flows downstream from Daisy Lake Dam has been

an issue of concern for fisheries since construction of the project

(BC Hydro Fish Flow Overview Report # EA: 95-06, p. 93). Postconstruction flows below the dam have been 33 percent of

pre-project annual average flow but minimum daily and mean

monthly flows have, at times, been very low (ibid.). Flow ramping

was also known to cause fish stranding (ibid.). The fact that DFO

had issued a flow order indicates that it believed that harm to fish

habitat and fish populations was occurring.

191. In its response to the Expert Group questions, Canada stated that

the flow order under dispute required BC Hydro to release 45 percent of the previous day’s inflow to the reservoir downstream into

the Cheakamus River with a minimum flow of 5 m3/s (Canadian

Submission March 1999, Section 2.1.1). Although BC Hydro was

able to have this order rescinded, the company adhered to the

order’s specifications while negotiating a regime mutually acceptable to BC Hydro, DFO, MELP and other interests (ibid.). All parties have now agreed to an interim flow regime in which 45 percent

of the average inflow over a 7 day period is released into the

Cheakamus with the restriction that minimum flow cannot be less

than 5 m3/s (ibid.). This flow will be maintained until a WUP is

developed and approved for the Cheakamus (ibid.). In addition,

DFO monitors the flow in the Cheakamus and has completed both

aerial and ground surveys of the system downstream from Daisy

258 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Lake (ibid.). This new regime increases downstream flows by an

average 170 percent, increases minimum flows from 1.5 m3/s

to 5 m3/s, and allows for a more natural seasonal hydrograph

(Interim Operations on Cheakamus River, Canadian Submission,

March, 1999 Addendum, p. 1). According to BC Hydro, the

changes in flow will have unknown implications for increasing

total habitat but the increase is expected to be “notable” based on

professional judgement of DFO, MELP and BC Hydro biologists

(ibid.). BC Hydro indicates that it will undertake a program of monitoring and study to evaluate the effectiveness of the new flow

regime (Interim Operations on Cheakamus River, Canadian Submission, March 1999 Addendum, p. 3).

192. According to Canada, the effectiveness of the new flow regime will

be assessed as part of the WUP process, as well as the effects

of dyking, restoration activities and side channel development,

river gravel recruitment and other habitat improvement measures

(Canada’s March 1999 Submission, Section 3.4.1). The issue of flow

ramping rates will also be addressed at this time (ibid.).

Information Provided by the Expert

Group Regarding Cheakamus

193. Canada has provided some information on actions taken but little

information on the consequences of those actions for habitat or for

fish. SLDF had alleged that low and rapidly fluctuating flows had

adversely affected fish downstream from Daisy Lake. DFO had

ordered a specific flow regime, which was contested by BC Hydro,

and through negotiation the parties arrived at a compromise. BC

Hydro adhered to the flow order while negotiations proceeded.

This indicates a form of negotiated compliance and suggests a willingness by BC Hydro to address fisheries issues, which was also

characteristic of Keenleyside.

194. Much information critical to the issue of effective enforcement is

not available to the Expert Group. For example, with regard to

rapid fluctuations in flow, which was part of the SLDF allegation,

Canada only says that this will be addressed as part of the WUP

process. No information was provided as to why Canada has not

addressed this issue to date. There is a question as to whether

Canada considers flow fluctuations to be unimportant in this

instance. In addition, other unresolved questions with regard to

APPENDIX 8 259
flow include: How was the prescribed release of 45 percent of

inflows with a minimum of 5 m3/s arrived at as fish protection

flows? What oversight will DFO exercise with regard to study and

monitoring by BC Hydro and how will DFO determine that these

flows satisfy the criterion of no net loss of habitat or prevention of

HADD? What criteria will Canada use to determine that the negotiated flow regime and other measures satisfy the requirements of

the Fisheries Act?

195. There has been significant progress in improving flows in the

Cheakamus as a result of the flow order and subsequent negotiations. We concur with the agency experts that the habitat improvement as a result of the new flow regime and other rehabilitation

measures will be considerable. Some real and potential problems

have not been addressed, however, such as flow fluctuations and

possible temperature changes at the confluence of Rubble Creek

(BC Hydro Fish Flow Overview Report # EA: 95-06, p. 94). The effectiveness of the recent actions is to be the subject of future study. On

the basis of the information provided, it is not possible to say

whether these measures will be sufficient to prevent harm to fish

habitat at this facility or how they contribute to any overall objectives for the Cheakamus.

5.5 Walter Hardman (Cranberry Creek)

5.5.1 Allegation

196. Dewatering of the creek in 1996 killed and stranded rainbow trout

over a 10-km section. Dewatering of the creek is within the terms of

the BC Hydro water license (Submitters’ April 1997 Submission,

p. 5).

Canada’s Response supplemented by

information from BC Hydro

197. Canada acknowledges that operation of Walter Hardman directly

affects flows in Cranberry Creek (Canada’s July 1997 Response, p.

27). Walter Hardman has been first priority (with 9 other facilities)

for review in the Water Use Planning initiative (ibid.). DFO’s position is that the WUP process must place priority on meeting federal

and provincial legislative requirements including those of the Fisheries Act (ibid.). Canada was closely involved in the development of

260 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
interim operating orders, which will provide operational benefits

to fish during the development of the Water Use Plan and will

require release of appropriate flows in the lower Cranberry Creek

for the support of fish (ibid.).

Supplemental Information Requested

198. Specific additional information from Canada was requested

through the following questions (3 February 1999 Questions, p. 9):

a) Were there any specific enforcement actions taken in

response to the incident at Cranberry Creek and what was

the outcome of those actions?

b) What minimum flows are required under the interim operating orders?

c) How were these flows determined (in terms of their anticipated benefits for fish and fish habitat)?

d) When will the interim flows be implemented?

e) What monitoring will be done to determine the effectiveness

of the interim flow order once it is implemented?

f) What are the time lines for completion of the WUP? How will

compliance with the conditions of the WUP and the impacts

of that compliance be monitored and enforced?

199. Dewatering of Cranberry Creek is a consequence of the design of

the Walter Hardman Headpond and there is no simple way to fix

the problem (BC Hydro Fish Flow Overview Report # EA: 95-06, pp.

24-26). Canada does not dispute that habitat damage and fish kills

have resulted from the operation of this facility. In the supplemental information provided, Canada did not specifically address the

questions posed by the Expert Group except the question regarding the timing of the WUP process. Canada indicated that the WUP

was to commence in early 1999 and be completed mid 2000 (Canada’s March 1999 Submission, Section 3.7.5). The Expert Group

was provided with a copy of a conditional water license issued by

the province to BC Hydro for Walter Hardman for the period

1 August 1997 to 31 August 1998 (Conditional Water License for

APPENDIX 8 261
Walter Hardman Generating Station, October 1997, p. 3). This

license does not specify any minimum flows for fish conservation,

but does require the licensee to undertake a fish flow study and

requires that the diversion from Cranberry Creek must take into

consideration the protection of the fishery resource along with the

benefit of the power produced (ibid.).

Information Provided by the Expert

Group regarding Walter Hardman

200. The information provided on fish and fish protection is particularly sketchy for Cranberry Creek. Canada does not dispute that

low flows have been detrimental to fish and fish habitat in lower

Cranberry Creek and this is listed as an issue of public concern by

BC Hydro (BC Hydro Fish Flow Overview Report # EA: 95-06, p. 24).

Because of the design of the system, dewatering and damage to

fish habitat are ongoing features of the operation of the system.

According to BC Hydro, a study of minimum flow needs for fish

protection in Cranberry Creek will be an aspect of WUP (BC Hydro

February 1999 Submission, p. 25).

201. As an enforcement measure, Canada refers to an interim flow

order. (Canada’s July 1997 Response, p. 27) However, Canada was

vague about the interim flow orders designed to protect fish in

anticipation of a WUP for Cranberry Creek. The conditional water

license issued by the Province appears not to specify any minimum

flow for fish, although conservation of fish is to be taken into

account in decisions about diversion. The Expert Group was provided with no evidence that the previous harm to habitat had been

corrected or that future harm would not occur. Canada appears to

be depending on the WUP process to address flow problems in

Cranberry Creek.

5.6 John Hart Project

202. John Hart Project is part of a complex of dams and diversions

involving the Puntledge, Salmon and Campbell River systems.

The Expert Group dealt only with issues relating to John Hart and

the Campbell River downstream, although these projects are interrelated.

262 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
5.6.1 Allegation

203. Rapid flow fluctuations and inadequate instream flows have

adversely affected fish habitat (Submitters’ April 1997 Submission,

Appendix A, p. 5).

Spillway releases can attract fish into the canyon that then become

trapped (ibid.).

(As these two allegations are closely related they are dealt with

together)

Canada’s Response supplemented by

information from BC Hydro

204. The allegations above are documented as issues of agency and

public concern in the BC Hydro Fish Flow Overview Report # EA:

95-06, pp. 114-116). In response to the allegations Canada listed

and briefly described a number of studies undertaken in the

Campbell River and estuary to evaluate habitat and noted that a

side channel was installed below the powerhouse and additional

spawning gravel was placed in the Elk Fall side channel to alleviate

problems caused by rapid flow fluctuations (Canada’s July 1997

Response, p. 56). According to BC Hydro, it, DFO, MELP and

other interests have developed an interim flow agreement and BC

Hydro has also been active in various habitat improvement initiatives (BC Hydro February 1999 Submission, p. 26).

Supplemental Information Requested

205. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions,

p. 10):

a) To what extent have these measures mitigated problems

caused by John Hart? How was this monitored and if the

problems were not mitigated, what are the plans for follow

up?

b) Since problems with flow fluctuations have been a longstanding issue with this project, why have measures been

taken only recently to address the problems?

APPENDIX 8 263
c) Does Canada believe that there is a problem with fish trapping in the canyon and with TGP?

d) If trapping occurs and TGP problems occur, what enforcement does Canada plan to address these issues?

206. In the supplemental information provided, Canada noted that a

spill of water in 1994 washed out salmon eggs in the lower river

and salmon eggs in a recently restored side channel utilized by chinook salmon (Canada’s March 1999 Submission, Section 2.3.2.3).

The resulting DFO investigation and pressure from local community groups led to a round table on reservoir operation and fish

habitat (ibid.). An Interim Flow Management Strategy was drafted

and implemented through an interim WUP order (ibid.). The strategy has led to improved flows in the main river and restoration of

habitats in the estuary, floodplain and river (ibid.).

207. Leakage of water into the canyon (about 0.7 m3/s) provides some

habitat for rearing fish (ibid.). Small spills still occur into the canyon

and these can attract spawning salmon whose eggs would be

dewatered when the spill subsides (ibid.). In the fall of 1997, fish

were attracted into the canyon and spawned (ibid.). After consultation among DFO, MELP and BC Hydro it was decided to keep

flows in the canyon at 8.5 m3/s until the fry emerged in spring

(ibid.). Flows in the canyon were then reduced but have remained

at 2.8 m3/s and provide enhanced nursery habitat for salmonids

in the lower Campbell River (ibid.).

208. With the Interim Flow Management Strategy in place, further biological assessment of this system will proceed as part of the WUPP.

Instream flows and restoration of habitat within the canyon will be

studied with experimental flows ranging from 3-9 m3/s (Canada’s

March 1999 Response to Expert Group, Section 3.6.2.3).

Information Provided by the Expert Group

209. Canada acknowledges that the allegations of the Submitting

Parties are true and describes a series of measures taken to address

them. It appears that considerable improvements in flow regime

for fish have resulted particularly from the recent consultations

and negotiations involving DFO, BC Hydro, MELP and local interests. The Campbell River Interim Agreement may provide a useful

model for WUP and appears to engage the local community much

264 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
more strongly as stakeholders and stewards of the resource. Specific features of the flow management regime include regulating

water releases to specified target flows that provide a more natural

hydrograph and providing a 2-m flood buffer in upper Campbell

reservoir. The improved flow regime will be combined with such

measures as gravel nourishment to increase spawning gravel quality and improvement of mainstem and off-channel nursery habitats. The extent to which these measures will be successful in

helping to rehabilitate the salmon runs of this river remains to be

seen but the steps taken are regarded as very positive. As a cautionary note, however, the estimate of spawning gravel area required

to satisfy the target chinook salmon escapement is based on a measure of gravel area per spawner that is less than half the value recommended in the literature (7.5-10 m2 compared with 20.1 m2).

The use of the smaller area per spawner is based on the assumption

that the spawning gravel provided will be of very high quality.

Furthermore, the gravel area provided is expected to sustain a

spawning population of 4000 chinook, less than the average

escapement to the river between 1965 and 1974, several decades

following construction of the hydro project. Thus, present plans

and management measures, although an improvement over the

recent past, do not represent a restoration of this system to historic

productivity.

5.6.2 Allegation

210. Spillway releases cause TGP problems (Submitters’ April 1997

Submission, Appendix A, p. 5).

Canada’s Response supplemented by

information from BC Hydro

211. Canada made no specific response to the allegation of TGP problems associated with the John Hart project. The BC Hydro Fish Flow

Overview Report notes that TGP has not been studied but there is

the potential for creation of elevated gas levels below spillways

(BC Hydro Fish Flow Overview Report # EA: 95-06, p. 115).

Supplemental Information Requested

212. Specific additional information was requested from Canada

through the following questions (3 February 1999 Questions,

p. 10):

APPENDIX 8 265
a) Does Canada believe that there are problems . . . with TGP?

b) If . . . TGP problems occur, what enforcement does Canada

plan to address these issues?

Canada provided no specific information about TGP in the Campbell River.

Information Provided by the Expert Group

213. It is unclear whether Canada agrees with or rejects the Submitting

Parties’ allegation of TGP problems in the Campbell River. We do

not know why Canada was silent in response to our specific

request for information on this allegation. It may be that there are

no data to confirm or deny the allegation, as indicated by the BC

Hydro Fish Flow Overview Report. Total gas pressure was not an

issue discussed by the Campbell River Hydro Fisheries Advisory

Committee in preparing the Interim Flow Management Strategy.

If, as the Fish Flow Overview Report states, there are plunge pools

below the spillways, then elevated TGP is indeed a possibility.

Without specific measurements, however, it is impossible to determine the extent and seriousness of any problem.

Summary of Information Regarding the John Hart Project

214. The information provided leaves several questions unanswered

particularly relating to the allegation of TGP problems in the lower

Campbell River. The information provided also indicates an

approach to enforcement comparable with that practiced at

Keenleyside, Shuswap Falls, and elsewhere in which impacts

involving harm to fish habitat are noted, discussed with BC Hydro

and other interests, and alterations to flow regimes, or other compensatory action negotiated with BC Hydro. In the case of John

Hart and the Campbell River, this consultative approach appears

to have been effective in developing new operating procedures for

the dam that are less damaging to fish and in promoting and implementing habitat restoration in the river and Canyon. As these initiatives are recent, the extent to which they will be effective in

mitigating or preventing future habitat loss and in helping increase

salmon runs to the Campbell River is unclear, however, the actions

taken must be regarded as positive.

266 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Overall Summary About the Six Facilities

215. Based on the information provided by SLDF, Canada and BC

Hydro, in many situations the operation of BC Hydro facilities has

caused and/or continues to cause harm to fish habitat.

216. The information provided by Canada and BC Hydro indicates that

Canada has taken a number of actions to address habitat problems

at BC Hydro facilities ranging from technical discussion and negotiation to flow orders and occasional legal action. Based on the

highly variable amount of information provided by Canada on

each facility, the degree of attention and effort directed by Canada

to addressing habitat problems at the different facilities appeared

to be very uneven. For example, based on the information provided, the Campbell River downstream from John Hart dam and

its tributary the Quinsam River appear to have received a great

deal of attention, presumably in consideration of a locally important but relatively small run of chinook salmon. By contrast, the

Peace River system has received virtually no attention despite

being one of the largest river systems in Canada, an interprovincial

waterway, an important element in sustaining the Peace

Athabasca Delta (a World Heritage site) and an important

breeding and feeding ground for several important fish species

(whitefish, goldeye, charr, burbot), important to a number of First

Nations and an important heritage river (Mackenzie’s route to the

Pacific). In a similar vein, one can compare the considerable attention directed to effects of Keenleyside Dam on the Columbia with

the limited attention directed at the Bennett and Peace Canyon

dams. It was not clear to the Expert Group why some facilities

and/or some problems were emphasized while others received little attention.

217. The Submitting Parties and Canada appear to agree that the measure of effectiveness is in the consequences of enforcement for habitat or fish. Canada states that achieving No Net Loss is its measure

of effective enforcement and asserts that No Net Loss has been

achieved. As we discussed earlier and will comment further on in

the next section, there are problems with Canada’s use of No Net

Loss as a criterion of effective enforcement, and with the way Canada appears to be applying this criterion to determine effective

enforcement. As No Net Loss is described in Canada’s various

policy documents, it provides no guarantee that any amount of

natural fish habitat will be conserved and it allows habitat to be

APPENDIX 8 267
harmed. Furthermore, in Canada’s application of No Net Loss to

determine effective enforcement at the six facilities, it is not clear

whether only selected habitat characteristics were taken into consideration. Even for these the baseline was set unreasonably low.

(See detailed comments on No Net Loss elsewhere in this report).

218. Lack of well researched, quantitative information appears to be

the primary obstacle to reviewing the effectiveness of Canada’s

enforcement actions. In virtually all instances in which the Expert

Group requested hard technical information, little or none was

provided. The habitat problems created by construction and operation of hydroelectric facilities are complex and multifaceted and

there is no scientific consensus about how best to deal with most of

these problems. Resources for enforcement are limited. The issues

of information needs for enforcement and scientific uncertainty

will be discussed in greater detail in the next section but the effectiveness of enforcement at the six facilities for which the Expert

Group developed information would be both greatly improved

and more easily reviewed if Canada were to compile better information on the range of habitat problems at each facility, employ

adaptive management as a tool to improve understanding of how

to address hydro-habitat impacts over time, and ensure proper

and documented technical follow-up and evaluation of enforcement actions.

6.0 Overall Expert Group Comments Concerning Canada’s

Approach to Enforcement

219. In this section, the Expert Group offers final comments on effective

enforcement of section 35 of the Fisheries Act. The comments are

organized under 5 themes: No Net Loss as a basis for effective

enforcement; prioritization of habitat issues for enforcement; data

needs for effective enforcement; tools for achieving compliance;

and WUP as a means to address section 35 issues.

6.1. No Net Loss As A Basis For Effective Enforcement

220. There are concerns about Canada’s use of “No Net Loss” (NNL) as

the criterion for effective enforcement of section 35. The principle

of NNL and the Policy for the Management of Fish Habitat can be

viewed as a policy that allows destruction of fish habitat. There is

nothing in the policy that states that, at a minimum, a certain

268 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
amount or percentage of natural habitat should be maintained.

Critical habitat (defined in general terms) is supposedly not subject

to compensation but even this is a qualified limitation. In no other

circumstance is there any requirement that managers should not

proceed beyond some level in the hierarchy of preferences for habitat management that ranges from no alteration to elimination with

compensation. Given this hierarchy of preferences, therefore, the

Policy technically allows for the complete elimination of natural

fish habitat. The NNL principle allows for the destruction of fish

habitat short of complete elimination as well. Thus, as it is currently defined in the Policy and as Canada appears to be applying

it, achievement of NNL will not necessarily produce compliance

with Fisheries Act section 35(1).

221. NNL is largely implemented through the assessment of HADD as

laid out in the Decision Framework. As the Decision Framework

appears to deal with new project proposals or significant modifications to existing projects, it is not clear to the Expert Group how it is

applied to ongoing operating regimes, including changes in such

regimes such as commonly occur at hydroelectric installations.

Although the Expert Group posed questions about how existing

projects were evaluated for HADD, the issue was not clarified.

222. To apply NNL as a criterion of effectiveness, there must be a firm

baseline in time against which to judge losses and gains in habitat.

That is to say, there must be a set point in time at which habitat condition is determined and against which future changes in habitat

can be judged. There are several options for logical baselines

including, for example, the date the policy was implemented. It

appears, however, that no such baseline of habitat condition presently exists and that Canada addresses habitat problems on a case

by case basis without the capacity for any overall assessment of

gains or losses. Without such a baseline, Canada cannot show that

NNL is being achieved. Indeed, recent reports indicate considerable uncertainty and confusion regarding the present state of fish

habitat in the Pacific region (see e.g., Slaney, et al. 1996, Status

of Anadromous Salmon and Trout in BC and Yukon, Fisheries

21: 20-35; Quadra Planning Consultants 1997, No net loss of habitat: assessing achievement, Habitat and Enhancement Branch,

DFO, Vancouver; Pacific Fisheries Resource Conservation Council

Annual Report 1998-99; Living Blueprint for BC Salmon Habitat

(Pacific Salmon Foundation 1998)).

APPENDIX 8 269
223. As stated by Canada, the baseline year for each facility is the year in

which a problem has been first assessed, which could be years after

the facility was put into place and years after harm to fish habitat

has occurred on an ongoing or regular basis. The baseline then

becomes the state of habitat at that time, which is potentially a very

degraded habitat. Any incremental gain in habitat occurring after

the baseline is set, however small, is considered a net gain in habitat. Furthermore, it is not clear from information provided by Canada whether a full assessment of habitat is always conducted or

whether the baseline applies only to certain aspects of habitat. The

Expert Group considers that this sets a very low standard of habitat

to maintain and is neither in the interest of fish conservation nor in

the spirit of the No Net Loss/Net Gain policy for habitat.

224. NNL could form part of an effective enforcement of section 35. Elements of the kind of approach for effective enforcement would

include: a preliminary region-wide assessment of existing habitat

condition and habitat potential; development of an overall strategy and priorities for habitat conservation (discussed further

below); setting a timetable and resourcing the detailed evaluation

of habitat based on the priorities established; employing adaptive

experimentation and the precautionary principle as tools to reduce

the uncertainty of habitat productivity and prevent irreversible

damage; and developing a timetable for habitat improvement and

restoration. These elements would contribute to an improved

information base and habitat quality baseline (discussed further

below) that are essential to the application of NNL and for achieving the overall policy goal of net gain in habitat. Section 35(2) could

then be used to authorize certain kinds of habitat damage in the

context of region wide priorities and objectives for habitat productivity and also as a means to support adaptive experimentation to

determine appropriate trade-offs between fish production and

other uses.

6.2 Prioritization of Habitat Issues for Enforcement

225. All of the information provided by Canada suggested that there

was no integrated, region wide strategy for habitat conservation.

All management activities were site and problem specific and the

Expert Group could not determine if these contributed in any measurable way to the overall goal of a net gain of habitat. In the

absence of some comprehensive and integrated vision of fish habi270 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tat conservation and restoration it is impossible to make rational

trade-offs among competing habitat problems. The Policy for the

Management of Fish Habitat does not provide the vision because it

treats all habitat issues as equal. Later policies do not establish

clearly demarcated priority schemes. The WUP process will not

address this apparent shortcoming in Canada’s planning, as it is

also site and system specific. BC Hydro has an integrated management system for hydropower generation. Thus, BC Hydro can

make strategic decisions with an overall power production objective in mind and is able to assess the effect of changes at one facility

on the system as a whole. A similar vision for habitat conservation

and restoration would assist Canada to make the inevitable

trade-offs in resource allocation for enforcement and habitat management. If coupled with a proper information base, such an overall vision would also assist Canada in determining whether it is

achieving NNL.

6.3 Data Needs for Effective Enforcement

226. In its review of the six facilities, the Expert Group was struck by

how limited and anecdotal the information on fish and fish habitat

for these facilities seemed to be. Even with regard to such dramatic

alterations to river systems as hydroelectric facilities, the damage

to fish habitat cannot be properly assessed without quantitative

data. There are three levels of data on habitat and habitat productivity that would have greatly assisted the Expert Group in developing information on the effectiveness of enforcement. The first is

Pacific and Yukon region-wide data. That is to say, a broadly based

overview of fish habitat quality and productivity throughout the

region with priorities for conservation and an assessment of significant problems. Such an overview would have helped the Expert

Group put the impacts of hydro facilities into context. For example,

everyone recognizes that hydro facilities cause habitat problems,

but how significant are these in the context of other kinds of human

activity? What priority does Canada put on dealing with these

issues and why? Canada does not appear to have conducted such

an overview and evaluation.

227. The second level of data need is at the watershed level. The watershed level of data would provide details on how human activities

and fish productivity are distributed within the watershed, what

the most significant conservation problems are, and priorities for

addressing them.

APPENDIX 8 271
228. The third level of data is at the level of specific kinds of land and

water use impacts. For hydro facilities, these would be the data that

define baseline conditions of habitat quality and productivity and

opportunities for enhancement and restoration at each facility and

for the coordinated hydro system. These are the kinds of data that

allow a credible quantitative evaluation of habitat damage when

an accident occurs and should provide a basis for enforcement

under section 35. This is presumably the kind of information and

data that will be developed as part of the WUP process. These analyses will be reduced in value, however, without the more general

and comprehensive kinds of analyses noted above.

229. It seems likely that a great deal of the information needed is present

in DFO regional and district offices or in various research reports.

Based on the way that Canada addressed the allegations and the

questions of the Expert Group, however, whatever information

Canada has may not be organized in a way that makes it easy to use

for habitat management or enforcement. Mustering the available

information is only one part of the task, however. The data cannot

be used to its greatest effect without decisions about local and

regional priorities. In practice, DFO makes decisions about priorities, as reflected by the variable amount of information Canada

was able to provide on the six facilities and the unevenness in Canada’s approach to enforcement among the facilities. A consistent

and region-wide set of priorities for habitat enforcement would

reduce the impression of arbitrariness that pervaded the documentation that the Expert Group reviewed. Thus, the region-wide database on fish habitat needs to be complemented by the region-wide

vision for habitat conservation and management noted above.

230. Regardless of the current state of knowledge about fish habitat, significant uncertainties will persist. In fact, Canada cited the complexity of the problems and the scientific uncertainty surrounding

them as reasons for limited enforcement actions. Two primary

tools exist to deal with uncertainty of this sort. One is the precautionary principle, which asserts that when significant and irreversible harm is likely to occur, management action should not be

postponed because of limited and uncertain scientific information.

Canada has embraced the precautionary principle as a basis for

fishery management decision making and it should also apply to

habitat management decisions. The second is adaptive experimentation to reduce scientific uncertainty. Hydroelectric facilities are

272 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ideal systems for adaptive experimentation. A more proactive use

of such experimentation would reduce some of the uncertainty

about hydro-fisheries impacts.

6.4 Tools For Achieving Compliance

231. The Fisheries Act provides several options for authorizing and minimizing HADD (e.g., section 22(3) orders, section 32 and section

35(2) authorizations). Canada’s use of these enforcement tools has

been rather limited considering the significant number of hydroelectric facilities operated by BC Hydro. The information provided

does not allow clear review of the effectiveness of these tools in

conserving habitat or managing habitat damage. Indeed, Canada

appears to regard these tools as emergency response measures to

halt or forestall habitat damage while a longer-term solution can be

worked out. In the present context, it appears that longer-term

solutions to existing problems will be determined through WUP.

232. Section 35(2) authorization is an enforcement tool that can be used

in the normal process of managing multiple uses of habitat.

Although section 35(2) does not appear to have been often used in

this way in the past, DFO indicates that it intends to use such

authorizations as part of the WUP process. A wider use of section

35(2) authorizations would rationalize a process that, at present,

appears haphazard and arbitrary. In particular, where habitat

alterations are unavoidable, such as with the operation of hydro

electric facilities, section 35(2) authorizations should provide a

means of establishing expectations for habitat quality and productivity in the context of facility operation.

233. Although guidelines for the application of its various enforcement

tools are important, information on the application of those tools is

equally important to an assessment of effectiveness. Canada does

not appear to have any region-wide database on habitat-related

enforcement actions. The Expert Group believes that such a database would be of considerable value to Canada in tracking violations, enforcement and compliance. In fact, without such a

database, the Expert Group does not see how Canada can assess

objectively the effectiveness of its enforcement effort. As with data

on habitat condition, we expect that much information exists in

regional and district offices but it is simply not organized in a way

that facilitates retrieval and analysis.

APPENDIX 8 273
6.5 WUP As A Means To Address Habitat Issues

234. WUP is an initiative by the Province, DFO and BC Hydro to integrate environmental and social considerations into the operation

of hydro facilities throughout the Province. Canada’s objective in

participating in WUP is to ensure that water management plans for

hydro facilities satisfy the requirements of the Fisheries Act. No formal WUP’s have yet been completed and implemented but the

activities of the Campbell River Advisory Committee and the

Alouette Stakeholder Committee have been referred to as informal

WUP’s.

235. Since the WUP process is a future process and since there are no

examples of WUP implementations it is not clear whether this consultative process has or will effectively reduce adverse impacts on

fish and fish and fish habitat resulting from operations of hydroelectric facilities. Nevertheless, the Expert Group regards the WUP

process as positive with potentially beneficial consequences for

fish habitat management. As it has been presented to us, however,

we also feel that there are some important shortcomings to WUP

that should be addressed. These include:

• The potentially degraded state of habitat that will be classed as

“baseline” under Canada’s definition. If arresting the ongoing

decline in fish habitat quality at most facilities is a “sufficient”

outcome from WUP, as suggested by the documentation provided by Canada, then this will compromise the long term productivity of many important fish stocks;

• Concerns have been expressed that the consultative process

proposed under WUP may be different from that associated

with CEAA and any attempt by Canada to substitute a WUP

review process for CEAA may raise important issues of credibility with the process;

• WUP is a purely voluntary process and is not mandated under

any particular statute. Although this allows considerable flexibility in the process, it may also weaken its effectiveness and

credibility;

• WUP appears to embrace the DFO policy of No Net Loss/Net

Gain as the guiding objective for fish habitat. There are significant issues concerning the NNL policy and its implementation

as detailed elsewhere;

274 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
• It is not clear how the complex problem of BC Hydro’s integrated system operations is to be dealt with as operations at

individual facilities are negotiated under WUP. It is well known

that impacts at individual sites will vary according to the way in

which the entire system is operated and vice versa. Dealing with

this issue from a fish habitat perspective would be facilitated if

Canada were to have its own system wide objectives and priorities for fish habitat conservation and management;

• WUP is a long-term process. The longer the process takes to

complete the greater will be the ongoing impacts on fish habitat;

• Canada has not suggested how it will proceed should the WUP

process prove ineffective or in the event that one or more WUPs

do not lead to issuance of section 35(2) authorizations;

• Neither the WUP documentation nor any of the submissions

by Canada indicate how Canada will address the necessary

trade-offs between fish habitat and other water uses that will

arise in the WUP process. This concern speaks again to the need

for a region-wide vision and priorities for habitat conservation

and management against which the individual projects can be

judged;

• Whether or not WUP is successful, there will still be violations of

section 35 with which Canada will have to deal. WUP on its own

will not resolve habitat enforcement problems.

• It is obviously too early to judge whether the WUP process

will be successful. Preliminary results at Campbell River and

Alouette River are promising and the Expert Group is optimistic

that WUP will improve conditions for fish and help rationalize

enforcement of the Fishery Act with respect to the BC Hydro

hydroelectric facilities.

APPENDIX 8 275
CEC SUBMISSION SEM 97-001

EXPERT GROUP REPORT

(original signed) (24 February 2000)

William Best Date

(original signed) (15 February 2000)

David Cohen Date

(original signed) (29 February 2000)

Michael Healey Date

276 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
APPENDIX 9

Water Use Plan—Program Plan April 1999

277

APPENDIX 10

11 May 2000 Comments of Canada

In its 11 May 2000 comments, Canada requested that certain comments

be attached to the factual record. These comments are set forth below.

While clearly a factual record cannot contain all of the information

provided to the Secretariat, there are two contextual facts that are

important to include:

(1) almost all BC Hydro facilities were built and in service

prior to 1977, the year that section 35(1) of the Fisheries Act

came into force;

(2) hydroelectric facilities affect 27 watersheds, representing

2 percent of all salmon bearing streams in British Columbia.

There are no facilities in the mainstream of the Fraser/

Thompson system.

Paragraph 137 contains a factual error: the final value of reduced

power benefits is $ 50 million per year.

The Secretariat references, and/or provides information relevant to,

these comments in paragraphs 37, 58, 67, and 137 of the factual record in

particular.

Canada also requested that the following statement be attached to the

final factual record and it is included in this Appendix: “Canada is not to

be taken as necessarily agreeing with the content of the factual record.”

279

ATTACHMENTS

Distribution: General

C/00-00/RES/08/Rev.1

ORIGINAL: ENGLISH

Dallas, 11 June 2000

COUNCIL RESOLUTION 00-04

Instruction to the Secretariat of the Commission for Environmental

Cooperation to make public the Factual Record regarding the assertion that Canada is failing to effectively enforce s. 35(1) of the Fisheries

Act with respect to certain hydro-electric installations in British

Columbia, Canada (SEM-97-001)

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

HAVING RECEIVED the final factual record;

NOTING that pursuant to Article 15(7) of the NAAEC the Council is

now called upon to decide whether to make the factual record publicly

available; and

AFFIRMING its commitment to a timely and transparent process;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record with

respect to this submission; and

TO ATTACH to this resolution and the final factual record the letters

sent by the Parties to the Secretariat pursuant to Article 15(5) of the

NAAEC commenting on the draft factual record.

283
APPROVED BY THE COUNCIL:

__________________________________

Norine Smith

Government of Canada

__________________________________

José Luis Samaniego

Government of the United Mexican States

__________________________________

William A. Nitze

Government of the United States of America

284 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Ms. Janine Ferretti

Executive Director

Secretariat

Commission for Environmental Cooperation

393 St. Jacques Street West, Suite 200

Montreal, QC H2Y 1N9

Dear Ms. Ferretti:

Further to Article 15(5) of the North American Agreement on Environmental Cooperation (NAAEC), we have reviewed the draft factual

record on 97-001 (‘BC Hydro’) and provide the following comments.

While clearly a factual record cannot contain all the information

provided to the Secretariat, there are two contextual facts that are important to include:

1) almost all BC Hydro facilities were built and in service prior to 1977,

the year that section 35(1) of the Fisheries Act came into force;

2) hydroelectric facilities affect 27 watersheds, representing 2 percent

of all salmon bearing streams in British Columbia. There are no facilities in the mainstream of the Fraser/Thompson system.

Paragraph 137 contains a factual error: the final value of reduced

power benefits is $50 million per year.

Canada request that the above comments be attached to, and form

part of, the final factual record.

Canada notes that the factual record goes beyond a compilation of

facts, and contains opinions, conclusions and recommendations of the

Secretariat or the Expert Group. For example, paragraph 143 contains

speculation regarding issues that may “affect the effectiveness of the

WUP process.” Paragraph 149 is a long list of recommendations regarding “issues worthy of attention in monitoring the effectiveness of the

WUP program.” Paragraph 233 contains a conclusion that “setting the

baseline conditions at the habitat level that exists when Water Use Plans

(WUP) are initiated or in the recent past sets the bar too low for habitat

ATTACHMENTS 285
protection.” As you are aware, the question of the scope of factual

records within the NAAEC is currently being considered by the Parties,

and Parties intend to clarify their collective understanding of this matter

as soon as possible.

It will be important to note that the release of a factual record does

not mean endorsement of it by the Council or the concerned Party. Consequently, we would like the following statement attached to the final

factual record: “Canada is not to be taken as necessarily agreeing with

the content of the factual record.”

Finally, we note that comments of a Party are not to be made public

unless and until Council votes to make the final factual record publicly

available pursuant to 15(7) of the NAAEC.

Yours sincerely,

[original signed]

Norine Smith

Assistant Deputy Minister

Policy and Communications

c.c. William Nitze

José Luis Samaniego

286 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Mexico City, Federal District, 11 May 2000

Ms. Janine Ferretti

Executive Director

Commission for Environmental Cooperation

Mexico hereby acknowledges receipt of the draft factual record for

Submission SEM 97-001 to the Secretariat of the CEC, and expresses its

recognition of the Secretariat’s efforts to continue making progress

toward perfecting the procedure established by Articles 14 and 15 of

NAAEC. In this regard, and in accordance with Article 15(5) of NAAEC,

Mexico is hereby transmitting to the Secretariat its observations concerning the accuracy of the factual record.

It is worth noting first that, as stipulated by the Agreement, after the Secretariat incorporates the relevant observations into the final factual

record, it is exclusively for the Council to decide whether or not to make

said document public, as provided by Article 15(7) of the Agreement.

As discussed in our specific observations, Mexico holds the view that a

factual record should consist of the collection of facts alone, as the Agreement provides, and not of value judgements or recommendations from

experts whose services are retained by the Secretariat, nor opinions of

the Secretariat itself.

Moreover, we draw your attention to the fact that the documents presented as a factual record should be limited to describing the facts that

motivated the Submission.

Additionally, we are of the opinion that a factual record cannot review

or rule on the efficiency, effectiveness or suitability of a legal framework,

but must focus exclusively on the factual corroboration of the alleged

failures to enforce the law asserted in the submission relating to the case

in question.

ATTACHMENTS 287
Finally, and without minimizing the importance of the remaining observations discussed in the accompanying review, I must stress the need to

conduct the process properly, i.e., in strict adherence with the Agreement. This will give us the opportunity to provide the public with a process that offers certainty, that is effective and transparent, and whose

ultimate consequence will be a strengthened mechanism for public participation.

Since that is all for the moment, I convey my highest regards.

Yours sincerely,

[Spanish original signed]

José Luis Samaniego Leyva

Alternate Representative

VDM/MVL

c.c. Julia Carabias Lillo, Secretary of the Environment, Natural

Resources and Fisheries.

Norine Smith, Alternate Representative, Canada

William Nitze, Alternate Representative, United States of

America

288 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
OBSERVATIONS OF MEXICO ON THE

DRAFT FACTUAL RECORD FOR SUBMISSION SEM 97-001

(BC ABORIGINAL FISHERIES COMMISSION ET AL.)

Mexico City, Federal District, 8 May 2000

BACKGROUND

On 2 April 1997, the Sierra Legal Defense Fund and the Sierra Club

Defense Fund (the Submitters) filed a Submission with the Secretariat of

the Commission for Environmental Cooperation (CEC) under Article 14

of the North American Agreement on Environmental Cooperation

(NAAEC), in which they assert that the Government of Canada is failing

to effectively enforce sections 35(1) and 40(1) of the Fisheries Act, in

respect of the operations of the company BC Hydro and Power Authority (BC Hydro).

Once the Submission was analyzed under Article 14(2) of the NAAEC,

the Secretariat determined that the Submission warranted requesting a

Response from the Party. Accordingly, Canada submitted its Response

in July 1997.

Having analyzed both the Submission and the Response of the Party, the

Secretariat found that the Submission warranted the development of a

factual record pursuant to Article 15(1) of the NAAEC, and so notified

the Council of the CEC on 27 April 1998.

By Resolution 98-07, Council ordered the Secretariat to develop said

record.

On 28 March 2000, the Secretariat submitted the “Draft Factual Record

for Submission SEM 97-001” (the Draft) to Council pursuant to Article

15(5) of the NAAEC.

The following is a summary of the contents of both the Submission and

the Response of the Party, the actions of the Secretariat in relation to the

development of the corresponding Draft Factual Record and the characteristics of said Draft.

1. The Submitters assert that sections 35(1) and 40(1) of Canada’s Fisheries Act “make it an offence to carry on any work that results in the

harmful alteration of fish habitat,” supporting their statement with

the enumeration of six specific cases in which the operations of BC

Hydro are harming fish and their habitat. Thus, they assert that BC

ATTACHMENTS 289
Hydro has “consistently and routinely violated [federal Fisheries

Act] section 35(1)” and that the regular operation of its dams “causes

consistent and substantial damage to fish and fish habitat” (paragraphs 11 and 13, p. 13 of the Draft).

The Submission also states that section 35(2) of the Fisheries Act contains an exception to section 35(1) to allow alteration, disruption or

destruction of fish habitat by any means authorized by the Minister

of Fisheries and Oceans or under regulations made under the Act.

In addition, it states that the Ministry of Fisheries and Oceans of

Canada “has not issued any authorizations pursuant to s. 35(2)...

that permit Hydro to damage fish habitat, nor are there any regulations under the Act that exempt Hydro from complying with

s. 35(1).” The Submitters emphasize that the Department of Fisheries and Oceans—the federal body responsible for enforcement of

the Fisheries Act—has failed to enforce section 35(1) in the case of BC

Hydro, since it has “only laid two isolated charges . . . against [BC]

Hydro since 1990, despite clear and well documented evidence that

Hydro’s operations have damaged fish habitat on numerous occasions” (paragraph 13, p. 13 and paragraph 19, p. 15 of the Draft).

The Submitters assert that “the Party has failed to effectively enforce

the Fisheries Act. [The Submission] states: “DFO . . . has failed, and

continues to fail, to enforce s. 35(1) against Hydro” (paragraph 19,

p. 15 of the Draft).

2. The Government of Canada, for its part, contends that it is effectively enforcing its environmental laws, stating that “Article 5 of the

NAAEC recognizes that enforcement encompasses actions broader

than just prosecution and provides a non-exhaustive list of appropriate enforcement actions.” It further argues that the Submitters are

basing their assertions on an overly limited definition of effective

enforcement, one that “equates enforcement directly with legal and

judicial sanctions” (paragraph 23, p. 16 of the Draft).

The Party states that it “has determined that a range of compliance

activities, from voluntary compliance and compliance agreements

to legal and judicial sanctions, are the most productive in terms of

providing for the long-term protection of the environment with

respect to fish and fish habitat” (paragraph 24, p. 16 of the Draft).

In addition, it states that “Canada does not hesitate to utilize the

full power of its laws to protect fish and fish habitat, where the exercise of these powers is deemed by Canada to be the appropriate

response” (paragraph 25, p. 17 of the Draft).

290 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
In support of its contentions, Canada includes in its Response a

table, titled “Orders and Authorizations Issued to BC Hydro since

1990,” containing authorizations issued under sections 32 and 35(2)

of the Fisheries Act, as well as a list of minimum flow orders pursuant

to section 22(3) of the Act. As well, Canada identifies the following

five strategies for law enforcement and compliance: New Projects,

Emergency Operations, Regional Technical Committees, Water Use

Planning Initiative and Water Quality Guidelines.

3. Having received instructions from Council, the Secretariat initiated

development of the Draft Factual Record, for which purpose it carried out the following activities:

a. retained the services of an environmental expert with an indepth knowledge of the citizen submission process (paragraph

39, p. 28 of the Draft);

b. convened an Expert Group on hydroelectric operations,

regulatory and compliance matters and fish habitat-related

issues, for the purpose of preparing a report “relating to the

effectiveness of Canada’s enforcement practices” (paragraph

40, p. 29 of the Draft and Appendix 2, p. 2);

c. identified Canada, the Submitters, the province of British

Columbia and BC Hydro as Stakeholders in the factual record

development process (paragraph 41, p. 30 of the Draft);

d. invited the Stakeholders to provide information, both verbal

and written, by a deadline that was subsequently extended several times, as well as to meet with the Expert Group in order to

present information (paragraph 42, p. 30 and paragraphs 49 and

50, p. 35 of the Draft), at meetings at which it was intended that

all the Stakeholders would attend as observers.1 (paragraphs 46,

48, 49 and 52, p. 35 of the Draft);

ATTACHMENTS 291

1. It should be pointed out that the Draft Factual Record states that “the Secretariat

made efforts to schedule presentations by Canada and the Province of British

Columbia to the Expert Group. One such presentation was scheduled for 11 February 1999, for example, but this presentation was postponed at Canada’s request. No

such presentation was ever made” (paragraph 49, p. 35 of the Draft), neglecting to

explain that the reasons why Canada did not participate derived from its dissatisfaction with the process itself, its format and scope, which gave rise to a specific deliberation between the Council and the Secretariat, culminating in the suspension of the

hearings.
e. distributed to Stakeholders the document titled “Commission

for Environmental Cooperation, Draft Factual Record Under

Articles 14 and 14 [sic] SEM-97-001, Synopsis,” produced by the

Secretariat, which “provided an overview of the Article 14 process and the process the Secretariat intended to use to develop

information for consideration in the Factual Record” (paragraph 43 of the Draft, p. 30);

f. distributed to Stakeholders a document entitled “Commission

for Environmental Cooperation, Draft Factual Record Under

Articles 14 and 14 [sic] SEM-97-001, Scope of Inquiry” in order

“to focus the information-gathering process and thereby

enhance the efficiency and effectiveness of the effort to develop

information” (paragraph 44, p. 31 of the Draft). The purpose of

the document was to “promote development of information

regarding whether Canada has been effectively enforcing its

environment al laws” (Appendix 3, p. 1);

g. sent a letter to the Stakeholders notifying them that the factual

record would focus on a subset of the six BC Hydro plants, so as

to gather information on the principal adverse impacts, the

measures taken by Canada and “the extent to which the government’s actions and BC Hydro’s efforts have been successful in

reducing impacts.” The same letter “requested that the Stakeholders identify any other facilities that should be selected”

(paragraph 45, p. 34 of the Draft); and

h. invited citizens to participate in the process, placing the above

documents (the letter of invitation to the Stakeholders inviting

them to present information and participate in the meetings

with the Expert Group, the Synopsis and the Scope of Inquiry)

on the CEC web site and “established a document repository”

(paragraph 53, p. 36 of the Draft) at the Institute of Dispute Resolution of the University of Victoria, British Columbia, containing the foregoing documents, as well as the “. . . Submission

itself, Canada’s Response, the Submitters’ Reply, the Council’s

Resolution, and the Agreement and Guidelines,” for consultation (Appendix 2, p. 2).

Through these activities, the Secretariat obtained and developed

information relating, inter alia, to the nature of the enforcement

activities undertaken by Canada and the effectiveness of said activities in enforcing section 35(1) of the Fisheries Act.

292 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
4. In the Summary section of the Draft Factual Record, the following

principal results are noted:

a. habitat alterations are inevitable with the operation of hydroelectric plants;

b. Canada has various initiatives underway geared toward

enforcement and reducing damage to fish habitat;

c. resolving the damage to fish habitat caused by the operations of

BC Hydro is a major challenge, but entails finding a suitable

trade-off between competing interests, improving understanding of the fish habitat potentially impacted by BC Hydro’s operations, as well as the possible options for resolving the harm to

such habitat caused by such operations;

d. there are many activities, not only hydroelectric operations, that

can damage fish habitat;

e. Canada mentioned the various enforcement approaches that it

has undertaken, and is undertaking, to resolve the harm to fish

habitat caused by BC Hydro operations: prosecution against

BC Hydro; Fisheries Act s. 22(3) orders and ss. 32 and 35(2) authorizations; creation of various regional committees to better

address aspects of the habitat; enforcement of the Water Quality

Guidelines (paragraphs 216-220, pp. 118-120 of the Draft);

f. concerning Canada’s enforcement activities and their impact

within the context of the six facilities, the Expert Group Report

indicates that Canada’s efforts to resolve the habitat problems

vary greatly from one facility to the next. The Expert Group

notes that “the fact that some activities produced benefits is

clear but that information generally is limited concerning the

degree and adequacy of benefit produced.” It also stresses

the importance of applying a comprehensive, system-wide

approach in resolving harm to fish habitat (paragraph 221,

p. 120);

g. Canada has initiated the development of a Water Use Planning

process which is considered to be the centerpiece of its efforts to

resolve the harm to fish habitat caused by BC Hydro operations,

and which is designed to include collection and gathering of

necessary data as well as compliance assessment measures, a

ATTACHMENTS 293
monitoring plan and the possibility of adaptive management

that provides opportunities to incorporate evolving knowledge

(paragraphs 222, 226 and 227, pp. 121-122 of the Draft);

h. in connection with the foregoing, the Draft Factual Record states

that the Expert Group concluded that the Water Use Planning

process “is an improvement in many ways over previous strategies to resolve harm to fish habitat caused by BC Hydro operations.” It further indicates that “the overall direction . . . is

promising . . . the “proof” will lie in the results over the next

several years.” The Expert Group mentions “. . . a series of issues

to monitor concerning whether the WUP process will prove

to be effective” (paragraphs 231-233, p. 124 of the Draft);

i. concerning the procedure itself, the Draft Factual Record states

that “the Submitters’ assertion appears to be that the WUP

process may constitute effective enforcement of s. 35(1) of the

Fisheries Act if . . .:”

t Canada decides that a s. 35(2) authorization is needed for

each BC Hydro operation that continues to cause or could

continue to cause harm to fish habitat . . .;

t Canada follows s. 35(2) and CEAA [Canadian Environmental

Assessment Act] requirements in reviewing whether an

authorization should be issued and in determining the terms

and conditions to be included in each authorization . . .;

t Canada “effectively enforces” (through prosecutions or otherwise) in those situations (if any) in which it declines to issue

an authorization and the facility continues to operate in a

way that violates s. 35(1) by harming fish habitat, and in situations (if any) in which there is non-compliance with an

authorization” (paragraph 234, p. 127 of the draft);

j. Concerning the enforcement measures taken other than the

Water Use Planning process, the Draft states that “limited information was provided concerning the effectiveness of the use of

these tools.... Canada appears to contemplate considerably

greater use of s. 35(2) authorizations as part of the [Water Use

Planning] process, and the Expert Group provides information

concerning the potential benefits of such a strategy”:

Section 35(2) authorization is an enforcement tool that can be

used in the normal process of managing multiple uses of habitat.

294 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Although section 35(2) does not appear to have been often used

in this way in the past, DFO indicates that it intends to use such

authorizations as part of the WUP process. A wider use of section

35(2) authorizations would rationalize a process that, at present,

appears haphazard and arbitrary. In particular, where habitat

alterations are unavoidable, such as with the operation of hydro

electric facilities, section 35(2) authorizations should provide a

means of establishing expectations for habitat quality and productivity in the context of facility operation (paragraph 220, pp.

119-120 of the Draft).

OBSERVATIONS

Mexico’s observations, which are intended as illustrative rather than

exhaustive, are in keeping with the provisions of Article 15(5) of the

NAAEC, which states that “[a]ny Party may provide comments on the

accuracy of the draft within 45 days [of submission of the draft factual

record]”:2

1. The Draft factual record submitted by the Secretariat of the CEC

does not specifically focus on establishing whether Canada failed to

effectively enforce sections 35(1) and 40(1) of the Fisheries Act, which

is the matter raised by the Submitters.

Although Canada indicated the existence and enforcement of a wide

range of measures at its disposal, whose execution had to be corroborated in order to confirm that the assertions made in the Response

of the Party were correct, the Secretariat focused on an analysis of

the efficiency, efficacy and degree of effectiveness with which those

measures were and should be enforced, which, from our point of

view, vitiates the purpose of the factual record.

Thus, the Secretariat based its determination to develop a factual

record on the insufficiency of information relating to the effectiveness of the actions taken by Canada to enforce its environmental

law, instead of focusing on the factual corroboration of the alleged

failures to enforce said law asserted by the Submitters, as it should

ATTACHMENTS 295

2. Mexico received two versions of the draft factual record, one in English and the other

in Spanish. Although Article 19 of the NAAEC states that “[t]he official languages of

the Commission shall be English, French and Spanish . . .”, the Spanish version of the

draft factual record indicates, on page 3, that it is “an unofficial, unedited translation

of the original English version. In the event of a discrepancy, the original shall prevail in the same measure” [English translator’s version]. In consequence, this Party

states that the present observations were made by examining the Spanish version

and comparing it insofar as possible with the English version, since otherwise it

would have been necessary to work with the English version.
do based on a broad interpretation of the term “effective enforcement,” as well as on the fact that Canada, in its Response, cited an

additional series of measures that imply the effective enforcement of

its environmental law.3

In this way, the Secretariat made up for the defects in the Submission, going into an analysis of the measures taken by Canada, even

though the text of the Submission only made reference to the failure

to enforce sections 35(1) and 41 of the Fisheries Act relating to prosecution.

2. From our point of view, Canada is making use of its discretionary

power in determining the type of action it considers relevant in each

case, among the various provisions at its disposal. In this regard, we

consider such decisions to be in keeping with Article 45(1)(a) of the

NAAEC, and thus the selective enforcement of measures it considers to be relevant, arising from its discretionary power, falls outside

the scope of the process established by Articles 14 and 15 of the

Agreement.4

3. By requesting additional information from the Submitters, including information relating to the Response of the Party, the Secretariat

overstepped its authority under the NAAEC, which does not provide for such a possibility. Specifically, Article 21(1)(a) stipulates

that additional information for the development of a Factual

Record, including compliance and enforcement information, may

only be requested from the Party.

By acting in this way, the Secretariat opened the door for the Submitters to expand on the original content of their Submission, as they

did, as well as to contest the arguments contained in the Response of

the Party. This procedure adopted by the Secretariat has no basis in

the NAAEC nor [in] the Guidelines.

296 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

3. We adopt the definition of “enforcement” given in Black’s Law Dictionary: “Enforcement: the act of putting something such as a law into effect; the execution of a law; the

carrying out of a mandate or command.” Black’s Law Dictionary. Sixth Edition. Centennial Edition (1891-1991), p. 528.

4. “Article 45: Definitions

1. For purposes of this Agreement:

A Party has not failed to “effectively enforce its environmental law” or to comply

with Article 5(1) in a particular case where the action or inaction in question by agencies or officials of that Party:

(a) reflects a reasonable exercise of their discretion in respect of investigatory, prosecutorial, regulatory or compliance matters; or

(b) results from bona fide decisions to allocate resources to enforcement in respect of

other environmental matters determined to have higher priorities;”
Moreover, if the Secretariat considered it necessary to introduce this

type of novel practice during the process of developing the Draft

factual record, it should have requested Council’s opinion on the

matter, thus guaranteeing the reliability, transparency and predictability of the process.

4. The Expert Group focused on gathering information on the effectiveness of the Canadian law enforcement activities, and here too

the Secretariat overstepped its authority, since as discussed in point

1 of these Observations, the Secretariat is only empowered to analyze whether the Party failed to enforce its environmental law, but

not to question the suitability of such law.

5. By inviting citizens to participate in the process and establishing a

document repository at the Expert Group’s office at the University

of Victoria, further stipulating that the information provided to the

repository would be available to the public unless its confidentiality

were invoked, the Secretariat made the information in the factual

record public before the vote in Council pursuant to Article 15(7) of

the NAAEC and the Guidelines, and delegated functions reserved to

it, since neither the NAAEC nor the Guidelines permit the establishment of a public document repository other than the public registry

and file contemplated in Guidelines 15 and 16. In addition, the Secretariat placed documents on the CEC web site different from those

expressly contemplated in Guidelines 15 and 16.

6. The Draft Factual Record questions the suitability of Canadian law

by assessing the measures taken by the Party in terms of the degree

and sufficiency of the benefits said measures produced, further discussing aspects to be surveyed in order to determine whether the

measures will prove to be effective, and also by including various

recommendations on the manner in which the measures should be

enforced so that they do not appear to be random or arbitrary.

In summary, it is clear that the Secretariat put procedures into practice

that have no basis, thereby vitiating the process contemplated in Articles

14 and 15 of the NAAEC and its Guidelines.

ATTACHMENTS 297
11 May 2000

Janine Ferretti

Executive Director of the Secretariat

Commission for Environmental Cooperation

393, rue St-Jacques Ouest, Bureau 200

Montreal, (Quebec)

Canada H2Y 1N9

Dear Janine:

On behalf of the United States of America, and pursuant to Article

15 of the North American Agreement on Environmental Cooperation

(NAAEC), I would like to provide the Secretariat with comments on the

draft factual record relating to Submission on Enforcement Matters

97-001 (the “British Columbia Hydro” submission). The U.S. government reviewed the draft factual record with interest. Although the U.S.

could offer other thoughts and suggestions about the factual record, we

restrict our comment to one issue that we consider to be extremely

important.

It is the position of the U.S. government that the primary purpose

of a factual record is for the Secretariat to set forth the facts surrounding a

particular assertion of failure by a Party to the NAAEC to effectively

enforce its environmental law. This statement of the facts should enable

members of the public in North America to reach their own conclusions

as to whether the Party is effectively enforcing its law. In this process the

Secretariat has been given the important role of serving as a neutral and

independent fact-finder. Consequently, it is important that the Secretariat refrain from offering comments in a factual record that appear to provide the Secretariat’s own views about whether or not there has been

effective enforcement of the law with respect to the assertions in a particular submission.

In this regard, the U.S. government is concerned with three portions of the draft factual record. The portion of the draft factual record of

most concern to us is the last bullet of section 233. In that bullet the Secre298 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tariat discusses the tools Canada would need to use under particular

circumstances in order to effectively enforce its law. Also of concern are

section 141 and section 218 of the draft report. Section 141 appears to

convey the Secretariat’s views as to what actions taken by the Canadian

government might satisfy the concerns of those who made the submission. Section 218 appears to set forth the Secretariat’s thoughts on what

“challenges” need to be addressed by Canada to resolve “harm to fish

habitat caused by BC Hydro’s operations.” In our view, the statements

in these sections cross the line or come very close to crossing the line

between independent fact-finding, on the one hand, and rendering

judgement on the underlying legal issue at the heart of the submission,

on the other hand. The U.S. therefore recommends that these sections be

modified by the Secretariat in the final factual record to address this

issue.

If the Secretariat requires further clarification of our comments,

please do not hesitate to contact me, or Lorry Frigerio of my staff.

Very truly yours,

[original signed]

William A. Nitze

U.S. Alternate Representative

to the Council

ATTACHMENTS 299