FREE ESSAY ON WETLAND CONSERVATION

WETLAND CONSERVATION

The issue of wetland conservation and policy has long been an issue of controversy among
interest groups and industry. When observing the number of endangered or threatened
species that inhabit wetlands it is apparent that there is a pressing need to conserve
them, especially when the leading cause of species loss is habitat destruction (Nowlan
and Jeffries, 1996). There is currently in place a system of policies and laws which
culminate to create a relatively effective means of enforcement, however, through the
lack of a single Act which pertains to wetlands there continues to be inadequacies within
the system. Though the federal government has released the Federal Policy on Wetland
Conservation it is not admissible in court and therefore only stands as recommendations
by which the government would like the public to abide. The vastly different types of
wetlands located through out B.C. create many difficulties in the creation of a single
policy, however, if there was a broad based Act which was committed to the current
federal policy of "no net loss of wetlands" it would eliminate the need for overlapping
laws at the three levels of government. What Designates an Area as a Wetland A wetland
can be described in many ways, most of which provide a great deal of vagueness in the
distinction between the different classifications as these areas frequently fit into more
than one grouping within a very small space. There are basic traits which all wetlands
share, in that they are any land which is covered in less than six meters of water at low
tide (if tidal) for all or part of the year (Zoltai, 1988), this description includes
freshwater wetlands such as shallow ponds, marshes, peat bogs, swamps and fens, as well
as saltwater wetlands such as tidal flats, saltwater marshes, eelgrass beds, estuaries
and deltas (Nowlan and Jeffries, 1996). With such a broad range of fertile lands included
in this description it is no surprise that they maintain such a high level of
biodiversity. This description is however the most basic possible, in that it only allows
for a general identification of wetlands, rather than classifying them by type or by the
systems to which they are a part of. Nowlan and Jeffries (1996) group wetlands into five
categories in accordance with their parent systems: Marine, non-estuary saltwater
wetlands; Estuarine, wetlands around the mouth of a river; Lacustrine, wetlands connected
to lakes; Riverine, wetlands connected to rivers; Palustrine, marshy wetlands. This
method if classification is most effective when viewing wetlands from a policy
perspective as it allows for them to be classified as distinctly as possible. Zoltai, in
Wetlands of Canada (1988) uses over sixty very specific descriptions for the different
types of wetlands in Canada, the problem with this being that the traits of wetlands may
change from season to season and within small geographic areas. There is a consensus that
the coastal wetlands of the Pacific are of the greatest ecological significance in the
field of biodiversity; as they never freeze and are therefore able to provide year round
habitat for fish and wildlife (Nowlan and Jeffries, 1996). Significance of Wetlands
Wetlands have an anthropocentric value which has long been looked over in the development
of society, in that they have traditionally been though of as barren wastelands which
have no value to humans and therefore have been used as dumping grounds (Schiller and
Flanagan, 1997). This "pioneer mentality" has lead to the paradigm that wetlands are only
impeding urban development and that they are indeed useless because they have no
immediate or apparent cash value. The truth however, is quite the contrary. Clean water,
which is essential to all life, when extracted for consumption by cities and towns, can
be attributed to wetlands (Schiller and Flanagan, 1997). Through natural breakdown and
retention of toxins in effluents, wetlands are able to filter solid wastes as well as
industrial wastes containing heavy metals; ensuring that they do not harm human
populations or other ecosystems. In low-lying areas that are prone to flooding wetlands
play a crucial role in ensuring that civilizations are not destroyed, by acting as a
sponge, wetlands are able to absorb large amounts of water and slowly release it into the
water table, therefore averting any ill effects that may be caused by heavy rains or
spring thawing. This is a cost effective alternative to the commonly used system of dykes
and levies, which is expensive and labor intensive. If managed effectively and in an
integrated manner wetlands can provide many natural products such as fish, timber and fur
that can add revenue and create jobs in a local economy. The preservation of wetlands
near densely populated areas creates opportunities for outdoor recreation that citizens
may not otherwise be exposed to, creating intrinsic social values which perpetuate the
current movement towards further preservation of wilderness areas, namely wetlands
(Schiller and Flanagan, 1997). Through creating a resource which benefits everyone and
everything around it, preserving wetlands helps the public to learn more about this
unique and diverse ecosystem. Once it can be illustrated that wetlands provide a greater
net benefit to a community than the developed land, it is much easier to convince them
that they are worth preserving, this again helps to further perpetuate a paradigm that
wetlands are indeed vital to all forms of life. Federal Policies and Laws In 1996, the
Canadian government released its Federal Policy on Wetland Conservation, to which the
government requested that industry and land developers adhere. This however was merely a
means for the Federal government to please both industry and interest groups without
actually making a commitment to propose legislation on the matter (Nowlan and Jeffries,
1996). Under this policy the government states that it would like to see a goal of "no
net loss" of wetland habitat be adopted by the private sector, similar to the "no net
loss" of fish habitat which is legislated under the Federal Fisheries Act. Though the
recommendations stated within the policy are not prosecutable, they are admissible as
evidence in conjunction with any section of a Federal Act that pertains to wetlands, as
proof that due diligence was not provided. This makes the policy slightly more effective
than if it were the lone policy tool. This policy can be seen as a small victory for
interest groups that have been lobbying for legislation on wetland protection, however,
there is much more to be done before the Federal government will commit to legislation on
the matter (Nowlan and Jeffries, 1996). The Federal Fisheries Act The Federal Fisheries
Act is legislation intended to protect fish habitat in order to maintain the revenue
generated by the fishing industry, and therefore it does not intentionally protect
wetlands, in fact there are many wetlands that are not protected by the Fisheries Act.
Despite it's lack of enforceability in some areas, the Act can be seen as the most
effective policy tool in the crusade to protect wetlands, due to it's solid legal history
and the wide range of players that are active in it's enforcement. The sections of the
Act which pertain to deleterious actions to fish habitat are 35 and 36, contained with in
these sections are sparsely worded definitions of violations which would involve
investigation or prosecution under section 37. Section 35 contains an encompassing
statement which generally prohibits any alteration of fish habitat. However, there is
also a provision in this section which allows the Department of Fisheries and Oceans to
authorize projects which may be viewed as damaging to habitat on the basis of the "no net
loss" principle, in that if there is damage being done to one habitat, new habitat must
be created in another area in order to compensate. The statements in section 36 cover the
environmental effects which are most often generated by industry. The statements in this
pertain to pollution, by prohibiting the discharge or deposit of any substance, which is
toxic to fish, either directly or indirectly into an area which fish inhabit for all or
part of the year; this is the section under which most prosecutions are made. The broad
scope of these sections allows them to be applicable to many different situations. The
means of enforcing this legislation are outlined in section 37; this section gives the
Minister in charge control over the proceedings and investigations of any violations.
Provisions are made in this section so that DFO is able to request the plans and
specifications of any project which may be in violation of section 35 or 36 in order to
begin an investigation. These investigations may be carried out by any number of agencies
including: provincially, the Ministry of the Environment and the Ministry of Forests, and
federal departments such as DFO, Environment Canada, the Coast Guard, and Transport
Canada among others. Officials from any of these agencies are able to pursue
investigations and from there the Crown is able to decide whether or not to prosecute,
however, under the Act it is possible for any citizen or group to press charges. When
charges are initiated by a private party, it is the Province's discretion to take over or
dismiss the case, making the clause somewhat futile. Under this system there are two
factors which influence the Province's decision on whether or not to lay charges under
this or any other act: the prospect of a conviction and public interest. Section 41 of
the Act states that the Attorney General may request an injunction to stop work if any
violation of the Act occurs on a given project, this is in order to prevent any further
damage from occurring while the proceedings are taking place. Though the Fisheries Act is
the most powerful policy tool that exists in the protection of wetlands, it does have
positive and negative aspects to it. The main drawback to this legislation is that it
only applies to wetlands that are considered fish habitat, and therefore it does not
protect most bogs, swamps or fens. Also, the prosecution mechanism is flawed in that in
order for a party to be charged it must be proven by the Crown that due diligence was not
provided. As is inherent with almost all legislations, the Act is reactive rather than
proactive, meaning that no action can be done until a violation occurs, at which point
the damage has already been done (Nowlan and Jeffries, 1996). The Canadian Environmental
Assessment Act The CEAA applies to land development when any federal department or agency
proposes a project, provides funding or land for a project, or performs a regulatory duty
(Nowlan and Jeffries, 1996). However, the Act does not apply to Crown corporations, as
they operate under their own internal regulations when assessments are required. When an
assessment for a project is required there are four degrees of intensity provided for in
the Act, which depend on scale and location, and that are implemented by the "Responsible
Authority". Screening, which is the minimalist approach, documents the environmental
effects of a project and makes suggestions based on these observations; this provides for
an economical overview of impacts and provides a basis for further assessment. Class
Screening, applies to an entire class of actions which may be occurring in more than one
area or at a later date, this allows the findings to be archived, providing for minimal
duplication amongst agencies for similar projects and actions. When a serious
environmental threat is present a Comprehensive Study is performed, this type of
assessment is associated with projects such as hydroelectric dams and pulp mills, these
projects have a special provision under the Act that lists them and mandates that a
Comprehensive Study be undertaken. A Comprehensive Study is one in which an in depth
analysis is performed; this is generally needed for a prosecution under the Act to occur
(Nowlan and Jeffries, 1996). In the case of a politically sensitive infraction a
Mediation or Panel Review by an independent entity is carried out, this assessment is
generally the most intensive in order to provide clear and concise evidence as to the
scope of current and future impacts. This type of assessment may be ordered by the
Minister of the Environment or by the Minister of the "Responsible Authority" as a
scapegoat to alleviate political pressure on the Government, a provision which is clearly
to the governments benefit. There are other areas which are covered by the Act as well,
section 10 of the Act states that before any funding is allocated to a First Nations
group for a development an environmental impact assessment must first be completed. The
CEAA provides formal legislation that sets out when and where an environmental impact
assessment must be performed. The Act has one provision of questionable validity in that
it allows the Minister of the "Responsible Authority" to decide on whether or not there
should be a hearing to poll public concern on the issue, which means that if there is
little public concern there may only be a minimal assessment done, regardless of the
severity of the impacts associated with the project. Other Federal Acts As is becoming
apparent there are numerous Acts and Laws which pertain to wetland conservation. The
Canadian Wildlife Act, provides land managers with the ability to create and administrate
National Wildlife Areas which are a vital tool in the steps towards the effective
preservation of habitat for endangered species. The Migratory Birds Convention Act,
allowed the government to create bird sanctuaries under international support, which in
turn preserved wetlands for all species under the umbrella of migratory bird habitat.
Provincial Laws The Water Act In the regulation of bodies of freshwater the Water Act is
the legislation that pertains to their use. In this, the Act regulates any activities
that are around water or have to do with water withdrawal for export or otherwise. These
regulations are enforced by the Water Management Branch, in that the branch must
authorize all changes to natural watercourses, diversion, storage and the usage of
freshwater from natural sources, through the issuance of licenses, permits and approvals.
Section 7 of the Act sets out regulations for water quality and habitat preservation, as
well as requiring that all parties involved in any actions which alter a water body abide
by conditions placed upon these actions by Ministry of Environment or Department of
Fisheries and Oceans Officers. As legislation the penalties that can be implemented under
the Act are quite stringent; up to $200 000/day or 12 months in Prison maximum penalty.
This allows for effective and influential prosecutions to occur. The Wildlife Act The
Wildlife Act has a minimal effect in the conservation of wetlands, in that it is only
effective when one or more of a limited number of designated endangered species is
affected. Though, through provisions made in the Act there is the possibility for it to
be an effective policy tool. Section 3 of the Act allows the Ministry of Environment,
Lands and Parks (MELP) to acquire and administer land as reserves or to enter into an
agreement with an interest group who under guidance from MELP may administer the land. As
well this section allows the Minister to designate lands under his/her control as
Wildlife Management Areas, the primary function of this is to create sanctuaries for
migratory birds. This protection for birds however does not encompass plants,
invertebrates or fish; making it, in the absence of an endangered species act, somewhat
futile. Sections 6 and 7 provide another conservation scapegoat for the government in
that they use terms such as "may" to describe the designation of endangered species, as
there is no formal Act; currently there are only 4 species which are legally designated
as endangered in B.C., making the Act essentially useless except at the discretion of the
Minister. With the infrequency that the Act is used to protect habitat there is very
little that effective action that is taken under this act, surprising when one considers
the fact that habitat loss is the single most significant factor affecting species loss
(Nowlan and Jeffries, 1996). The Waste Management Act This Act is the main pollution
control law in the province in that it contains broadly based legislation against the
introduction of waste into any non-designated area without a permit. In the Act, there
are numerous offences and penalties which are clearly outlined in section 34; making
prosecution under the Act relatively easy. Section 6 outlines an automatic penalty for
littering which may be enforced by any "Responsible Authority", section 7 contains an
automatic offence for discharging waste from a recreational vehicle. This type of
automatic offence provides laws which are aimed at stopping onetime point source
pollution such as dumping and illegal black water discharge. Under sections 22 and 23 of
the Act a Manager is able to pass a judgment as to whether a substance is causing
pollution and on this judgment may order the parties involved to reduce or abate the
pollution. When there is a competent Manager present this is an effective means of
halting deleterious actions, however, section 26 allows for the appeal of any decision
passed by a Manager to be proposed by any party involved. Through mandating the report of
any spill or escape of deleterious substances the Act is effective in stopping pollution
of wetlands. The Provincial Environmental Assessment Act The Provincial version of the
Environmental Assessment Act was passed in 1995, making it newer and more streamlined
that of the Federal government and applicable to provincial projects. The Act provides
benefits which the CEAA is lacking, in that it depends more on public input and provides
a registry of projects for which assessments have been completed. The Act provides for
public input when: applications for projects are received, drafts of project reports are
being prepared, reports are filed, when the draft terms of reference for a public hearing
are prepared, and during the public hearing itself (Nowlan and Jeffries, 1996). These
opportunities for involvement allow the agency performing the assessment to gauge the
public interest in a particular issue, which determines the need for prosecution and
remediation should an environmental threat be detected. The project registry provided by
the Act provides: a list of projects currently under review, an index of all the records
for each project, and all important documents and decisions that were involved in the
process. This acts much like a class screening in the CEAA, but is more comprehensive, in
that it allows past cases to be admissible as evidence that due diligence was not
provided in prosecutions. Though wetlands are not specifically mentioned under the Act,
it is implicit that wetlands are included, as the Act pertains to any project which is
hazardous to the environment, making this an important piece of legislation in wetland
cases. The British Columbia Forest Practices Code As the majority of space in B.C. is
forested Crown land the Forest Practices Code provides essential protection for the
wetlands that are contained within this area. By regulating the space allowances around
wetlands the Code is able to provide a reasonable amount of protection for all wetlands
in it's jurisdiction, the width of this area varies with the classification of a given
wetland according to it's sensitivity. The Riparian Management Area guidebook states the
objectives that the Code has as it pertains to Riparian areas; the main objectives of the
riparian provisions in the Code are: to minimize or prevent impacts created by forest
practices on aquatic ecosystems and to preserve any wetland wildlife habitat that is of
high intrinsic value. As it is legislated that all Forest companies adhere to the Code,
it is frequently used in prosecutions, though it's enforcement is generally reactive
rather than proactive. Other Provincial Laws The Land Act regulates the distribution of
Crown land; this is can be beneficial to wetland conservation if a responsible Minister
is in office. Through careful distribution of lands to groups that are environmentally
responsible a great deal of damaging environmental effects can be averted. The most
beneficial Provincial legislation in outright protection of wetlands is the Park Act, by
designating an area as a provincial park development is thwarted and any actions that
occur on that land are subject to strict regulation, which essentially eliminates the
possibility of intentional habitat loss, though no legislation can foresee accidents.
Municipal Laws and Bylaws Through the provincial Municipal Act, municipalities are given
the authority to deal with wetland loss on an individual case basis by the creation of
appropriate bylaws and zoning regulations. Section 945 of the Act allows local government
to make a community plan which designates areas for wetland conservation. This has grand
implications for the conservation of local wetlands, under this section the municipality
has the power to create buffer zones around fragile wetlands, as well they may create
bylaws which pertain to tree cutting, flood prevention, drainage and soil removal, among
others. Section 963 allows for the creation of zoning to regulate land usage, this may be
used to shift population densities away from sensitive areas. Conclusion Each of the
Policies and Acts which pertain to wetlands at the three levels of government has
positive and negative attributes which must be considered by Agencies when a prosecution
is sought. At the Federal level the Federal Policy on Wetland Conservation can be
described as a weak attempt at creating a solid legislation that pertains to wetlands.
Though there is no wetland legislation currently in place, the culmination of the
sections of Federal Acts which pertain to wetlands currently provide the strongest basis
for pursuing prosecutions. The legislation at the provincial level is effective in
providing for protection of Crown land or not located near an urban area. Due to their
flexibility, provisions made by municipalities under the Municipal Act could be the most
effective in conserving wetlands, in that they are able to create zoning in sensitive
areas to prevent development. The downfall of Municipal bylaws is that they are not
legally forceful enough to be effective against large corporations. Currently the most
effective means of preserving wetlands is either to have them designated a provincial
park under the Park Act or to have private ownership granted to an interest group either
by land allocation or through purchasing the land. It is evident through examining the
wide range of policy tools involved in the control of damage to wetlands that there needs
to be a Federal legislation enacted. If there were to be a complete legislation at the
federal level that pertained to wetlands, it would eliminate any vagueness that exists
with the current system of using many Acts when pursuing a prosecution. As well, within a
short time there could be a large registry to be used as precedence in court cases for
future prosecutions. From the observations made herein it is clear that there is an
imperative need for a cumulative Act on wetland conservation in order to preserve these
areas for future generations.