West Vancouver v. British Columbia

West Vancouver v. British Columbia
Court (s) Database
Federal Court Decisions
Date
2005-05-04
Neutral citation
2005 FC 593
File numbers
T-1310-04
Notes
Digest
Decision Content
Date: 200500504
Docket: T-1310-04
Citation: 2005 FC 593
BETWEEN:
CORPORATION OF THE DISTRICT OF WEST VANCOUVER
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the MINISTRY OF TRANSPORTATION, and ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] The Corporation of the District of West Vancouver ("West Vancouver" or the "applicant"), a municipality of approximately 45,000 residents located below the North Shore mountains north of the City of Vancouver, raises one substantive and two procedural issues in its challenge to the June 11, 2004 screening decision by federal responsible authorities ("RAs") made pursuant to the Canadian Environmental Assessment Act ("CEAA"), after conducting a screening level environmental assessment of the Sea to Sky Highway Improvement Project (the "Project") proposed by the Ministry of Transport of British Columbia ("MOT"), improvements driven in part by the 2010 Olympic Winter Games which will be held in Vancouver and Whistler. The screening decision determined the Project is not likely to cause significant adverse environmental effects. The Project extends from a point immediately east of Nelson Creek Canyon in the District of West Vancouver to Function Junction in Whistler, a distance of approximately 95 kilometres.
[2] West Vancouver does not challenge the screening decision for the entire Project. It seeks a declaration and certiorari quashing the screening decision only as it clears the way for the issuance of federal authorizations or permits in the southern 2.3 km portion of the Project from Horseshoe Bay to Sunset Beach.
[3] At the hearing, the Court was informed no federal permits had yet been issued in respect of the southern 2.5 km portion and construction was not expected to start there before September 2005, the final design stage not having yet been embarked upon.
[4] West Vancouver contends the federal screening assessment and decision does not comply with the CEAA for three reasons:
(1) The RAs in their environmental assessment failed to conduct a risk analysis of a material environmental effect, namely, the impact of blowdown or windthrow of trees likely to be caused by the construction of a new four-lane highway over the area adjacent to Eagleridge Bluffs and the Larsen Creek Wetlands. Alternatively, West Vancouver says if the RAs made a finding that windthrow of trees was not a significant adverse environmental effect, the decision could not be rationally sustained having regard to the level of the assessment actually conducted. Counsel for West Vancouver framed the question on this issue as "[I]s it an error of law to identify an environmental issue, defer the assessment to a later date but conclude before the assessment that the Project is not likely to cause any significant environmental effect ?"
(2) West Vancouver was denied an opportunity to comment on the screening report contrary to subsection 18(3) of the CEAA.
(3) The screening decision was unlawfully collapsed into or made part of the screening report again curtailing its right to comment on the screening report.
[5] Canada conceded if the factual assumption underlying the question framed by counsel for West Vancouver were true, the RAs' decision would contain an error of law. However, he argued, no error was committed because factually the assessment was made based on available and cogent information. The assessment was not deferred. On this issue, counsel for B.C. denied the scenario would constitute an error of law because mitigation was a function of the final design.
[6] On the fairness issues, both Canada and B.C. argued there was no breach of subsection 18(3) of the Act in the circumstances.
BACKGROUND
[7] The environmental assessment for the Project was a joint endeavour involving RAs and the Canadian Environmental Assessment Agency (the "Agency"), with British Columbia's Environmental Assessment Office ("EAO") in accordance with the Canada/BC Agreement for Environmental Assessment Cooperation.
[8] Federal involvement is triggered because RAs (Fisheries and Oceans Canada ("DFO"), Environment Canada ("EC"), Transport Canada and Indian and Northern Affairs Canada ("INAC")) decided the Project required the issuance of federal authorizations and permits under the Fisheries Act, the Canadian Environment Protection Act, the Navigable Waters Protection Act and the Indian Act.
[9] The Project was also subject to a provincial environmental review since it was designated as a reviewable project under B.C.'s Environment Protection Act.
[10] B.C.'s EAO took the lead role in the joint assessment and the record indicates that the RAs and interested stakeholders, including West Vancouver, were actively involved in the joint environmental assessment process.
[11] The focus of West Vancouver's concern consists of approximately 88 hectares of undeveloped timber lands owned either by West Vancouver or by a private corporate landowner situated on elevated lands featuring Eagleridge Bluffs in the south and Larsen Creek and its wetlands in the north.
[12] In this area, the Project as originally conceived by British Columbia's MOT as the sponsoring ("proponent") ministry and for which it had applied for environmental clearance on August 13, 2003, had two main options:
(1) Option 1 which involved the construction of a new two-lane highway cutting through the area dedicated to handling only traffic flowing north; this new highway would be married or coupled in the area to existing Highway 99, whose two lanes would be converted to handle southbound traffic only.
(2) Option 2 was the construction of new two northbound lanes in a tunnel underneath the affected area of approximately 1 km in length with opening at Nelson Creek and the other at a point north of the Horseshoe Bay Ferry Terminal. Southbound traffic would be handled by the converted Highway 99.
[13] In December 2003/early 2004, a new option was up for consideration and is the source of the dispute. That option was the construction over the affected lands of a new four-lane highway handling both northbound and southbound traffic. The tunnel option was still on the table essentially in the same form as originally proposed.
[14] The lead affidavit on behalf of West Vancouver was deposed to by Stephen Jenkins, a certified arborist who is the municipality's Environmental Coordinator. David Stuart, West Vancouver's Municipal Manager, also filed an affidavit in support.
[15] Two main affidavits were filed by Her Majesty the Queen in Right of the Province of British Columbia as represented by MOT (British Columbia): the affidavit of Peter Milburn, Executive Project Director with the Sea to Sky Project Office at MOT, and the affidavit of Paul Finkel, Project Assessment Manager, EAO.
[16] None of the affiants were cross-examined.
[17] The respondent Attorney General for Canada ("Canada") relied on the certified tribunal record for its evidence.
[18] West Vancouver also filed the affidavit of N. Hansen, who conducted a windthrow assessment in August of 2004. That affidavit was not considered by the Court since it was not material before the decision-makers at the time the screening decision was made. Counsel for West Vancouver recognized the merits of excluding Mr. Hansen's affidavit. The same result befell other affiants from West Vancouver whose material was not before the decision-makers.
THE SCREENING DECISION
[19] I reproduce in its entirety the screening decision approved by the federal responsible authorities:
Fisheries and Oceans Canada (DFO), Environment Canada (EC), Transport Canada (TC) and Indian and Northern Affairs Canada (INAC), responsible authorities as defined in the CEAA, have completed their review of the Sea to Sky Highway Improvement Project. DFO, EC, TC and INAC have completed a harmonized environmental assessment of the project working in cooperation with the British Columbia Environmental Assessment Office. All relevant factors required by Section 16 of CEAA were considered including the environmental effects of the Project and their significance. Based on the information in the Project Assessment Report dated May 2004, conditions in the Commitments Table, and Considerations (see above) DFO, EC, TC and INAC have concluded that the project is not likely to cause significant adverse environmental effects. In accordance with Section 20(1)(a) of CEAA, such a determination enables the Habitat and Enhancement Branch of DFO, EC, TC and INAC to proceed, if appropriate, with the issuance of an Authorization under subsection 35(2) of the Fisheries Act, a Permit under the Canadian Environmental Protection Act, a Permit under subsection 5(1) of the Navigational Waters Protection Act and a Permit under subsection 28 and/or subsection 35 of the Indian Act. [emphasis mine]
[20] This screening decision is contained in a document entitled "Screening Recommendation and Decision Summary" dated June 10, 2004.
[21] That document identified potential impacts including community noise impacts, geochemical issues such as acid rock damage and disposal of potential acid generating materials, geotechnical issues including landslides and rock cuts excavations, water and air quality factors including concentration of emissions at tunnel portals, if the tunnel option was chosen, fisheries and aquatics concerns namely stream channel modifications at crossings, hydrology and stream flows and loss of riparian vegetation, wildlife, and in particular loss of/or disturbance of wildlife including species at risk and associated habitats and finally habitat fragmentation of vegetation, namely loss of common vegetation (including trees), Arbutus trees and red and blue listed plant communities.
[22] It is useful to set out the text of the Federal Considerations in the June 10, 2004 federal screening recommendation document insofar as it relates to West Vancouver:
At a meeting on June 7, 2004, the District of West Vancouver, DFO, EC and the Canadian Environmental Assessment Agency discussed the environmental assessment process under CEAA and the proposal for an overland route through the District's lands. The District of West Vancouver raised their concerns about impacts on red-listed plant communities, the potential for trees to blow-down and the impact of noise on residents. They were advised that these issues had been considered during the review of the project and, taking into account the mitigation measures proposed, no significant environmental effects had been identified. They were also advised that the CEAA process does not allow for federal agencies to require the option with the least environmental effects; the decision is whether significant adverse environmental effects would be likely to result from the project as proposed. Neither of the route options through the District of WV was found to be likely to cause significant adverse environmental effects.
Environmental issues raised by West Vancouver residents with respect to the overland and tunnel route options were considered by the Responsible Authorities and addressed during the joint review of the project. [emphasis mine]
[23] Prior to the discussion about West Vancouver's concerns, those Considerations stated:
Based on the joint environmental assessment, the Responsible Authorities considered all potential environmental impacts of the Project and the mitigation measures proposed by the Proponent. Documentation included the Application; Clarification Reports; government, First Nation and public comments on the potential effects of the Project; responses from the Proponent; and the discussions of the Biophysical/Technical and Socio-Economic Working Groups. [emphasis mine]
[24] The Federal Considerations also mentioned that expert federal advice was sought from Health Canada and Natural Resources Canada ("NRCAN") on matters within their areas of expertise and satisfactory discussions took place with B.C.'s MOT, the Project's proponent.
[25] They also state reliance by the RAs on the expertise of B.C.'s Ministry of Water, Land and Air Protection ("WLAP") regarding certain impacts on species at risk and the effects of the Project on provincially listed plant communities.
[26] Although Federal Considerations are brief, it should be appreciated that the Project was jointly assessed and that B.C.'s Assessment Report of May 20, 2004, a very extensive document, forms part of the federal screening report.
THE FACTUAL CHRONOLOGY
[27] The primary facts underpinning West Vancouver's application before the Court are not substantially in dispute. Inferences from primary facts differ, however.
[28] Counsel for British Columbia classified the Project and its environmental assessment into six phases which were generally accepted by the parties.
[29] Phase 1 - early planning from January 2002 to June 2002 when MOT notified the EAO and the Agency of the Project. In May of 2002, MOT asked EAO to schedule a pre start-up meeting of federal and provincial environmental authorities which was held on June 11, 2002. Some preliminary design work was undertaken in June and August 2002.
[30] Phase 2 - the Pre-Environmental Assessment Application Phase from June 11, 2002 to August 13, 2003, which is the date MOT filed its application with EAO for an environmental assessment certificate. The material events in this phase are:
(i) On September 17, 2002, EAO advised West Vancouver of the Project and invited it to participate in two technical committees: the Biophysical Technical Working Group ("BTWG") and the Socio-Economic Working Group ("SEWG"); West Vancouver accepted. Representatives from the RAs and B.C.'s MOT also sat on these committees. West Vancouver also had a representative on a coordinating committee known as the Project Working Group on which the RAs were also members.
(ii) On October 21, 2002, MOT made a presentation to a West Vancouver public Council meeting where options 1 and 2 were explained.
(iii) A value analysis report for the conceptual design stage was completed on January 9, 2003. It considered the option 1 and option 2 alignments previously identified, i.e. the new two-lane northbound highway (the one way couplet) (option 1) and the tunnel option (option 2). The study concluded "the tunnel option was adjudged by the team to offer better value for money than the surface alignment" writing "on balance, the team concurs that the McElhanny split alignment couplet utilizing a short tunnel offers slightly better value for money, fits better in the context of the existing four-lane highway to the south of this section and the proposed four-lane highway to the north".
(iv) On May 12, 2003, Peter Milburn, MOT Project Director, explained to the West Vancouver Council the two alignment options.
(v) As mentioned, it was on August 13, 2003, that MOT filed its five volume application with EO. The two previously described options were the only ones specified for certificate approval.
[31] Phase 3, from August 13, 2003 to January 16, 2004, described as Public Consultation and Review of Results of Consultations. This phase began when EAO provided two months of public review and comment on MOT's application. The main elements of this phase were:
(i) MOT organized open houses in all communities along the highway corridor including evening public meetings. Members of the BTWG and SEWG on which, as previously noted, the applicant had representatives, provided comments. B.C.'s Sea to Sky Project staff met with West Vancouver officials of its Engineering and Transportation Department to review technical work and to discuss both the tunnel and surface options and subsets of those options.
(ii) On November 21, 2003, Peter Milburn wrote to West Vancouver's Municipal Manager, David Stuart, to indicate to him MOT did not have a preferred option "at this time" between the tunnel and surface options and that MOT's Project Team would bring "several options to you in the New Year so that we can gather your input, refine the most appropriate option to address local needs and then proceed with a final decision".
(iii) It was on December 16, 2003, at a meeting between West Vancouver traffic engineers and MOT's Project Team Engineers that the four-lane overland upslope option was first identified.
[32] Phase 4 from January 16, 2004 to August 8, 2004, described as a Reconsideration of options in light of a consultation assessment period extended for further public consultation. Its features were:
(i) Peter Milburn tells us in his affidavit at paragraph 61 that at the end of the January 21, 2004 meeting with West Vancouver's traffic officials, four options were jointly selected to be further developed for the February 2004 community consultation program (the "final four options") as follows:
Two of the options (Options A and C) were modifications of the Couplet Options. Two new options (Options B and D) that generally followed the alignment of the Couplet Options were also developed. The Final Four Options were:
Option A: Two Northbound Lanes Upslope - Two northbound lanes use a new route constructed upslope from the existing Highway 99. Two southbound lanes use the existing Highway 99 route ($115 million).
Option B: Four-lane overland - Four new lanes upslope from the existing Highway 99 corridor ($130 million)
Option C: Northbound Tunnel - A two-lane northbound tunnel. Southbound traffic uses existing Highway 99 ($140 million)
Option D: Two-way, two-lane, 1 km tunnel - One lane northbound and one lane southbound. The existing Highway 99 serves local traffic and a portion of through traffic to Squamish, Whistler and other points on the corridor ($170 million)
(ii) Community consultation in West Vancouver proceeded to review the final four options for a period of one month. The Council of West Vancouver was briefed on March 1, 2004, on the results of the public consultations. Peter Milburn indicates in his affidavit that "overall, community consultation for Option B was higher than any other option ... being superior in terms of safety and would move traffic more efficiently, including better north and south access".
(iii) Other meetings were held involving the Mayor of West Vancouver and B.C.'s Minister of Transportation.
(iv) On March 11, 2004, officials walked the Option B alignment with Mr. Jenkins and others after which on March 17, 2004, Mr. Jenkins wrote two letters expressing his concerns. He expressed concern to Peter Milburn (and similarly to federal officials) about the Larsen Creek Wetlands and introduced the subject matter of Forest Edge Management in these terms:
Forest Edge Management - I note that "tight clearing lines" will be implemented to reduce clearing widths. As I have considerable experience in this area, especially on the North Shore and this type of climate, topography and geomorphology, I am concerned that the wetter areas such as the Larson Creek wetland will suffer a similar fate as the Coquihalla Highway project. That project required excessive clearing as a product of blow-down and WCB liability issues in their wetland areas. For the Sea-to-Sky project, this would mean a large number of trees would have to be removed from the wetland area resulting in far greater impacts than stated in prior reports. As WCB requires all trees within one tree length to be assessed, the result could be an additional 35 meters (average tree height) on either side of the highway being cleared. That adds a potential of 70 meters of excess clearing through portions of the project such as Larson Creek Wetland. Again this could be avoided or at least minimized by using the tunnel option. [emphasis mine]
(v) On April 1, 2004, a field trip to the Baden Powell Trail Area took place.
(vi) Also on April 1, 2004, Peter Milburn responded to Mr. Jenkins' March 17, 2004 concerns. He wrote:
FOREST EDGE MANAGEMENT
Your comments about potential clearing in the Larson Creek wetland are speculative regarding the required area of clearing, worker safety and WCB Health & Safety Regulations. The Ministry of Transportation is committed to worker safety and to minimizing environmental impacts.
Environmental factors are often incorporated into the clearing and grubbing treatments. Under today's highway construction practices, an arborist would be retained prior to clearing to assess potentially hazardous or danger trees that may have to be felled. This serves both WCB requirements, where a danger tree could impact worker safety, and safety to the travelling public. However, this assessment is done of individual trees and clearing of environmentally sensitive areas is not conducted without consideration of the value of the area. For example, on the Vancouver Island Highway Project (VIHP), there are sensitive habitats (Bevan and Morrison wetland areas, wildlife trees, riparian areas, etc.,) that were designated as "Vegetation to Remain Areas" where trees remain close to the road. Areas on VIHP were "close-cut" to allow tree stumps to remain in the ground, which reduces ground disturbance and the amount of exposed soils, fosters terrestrial woody debris habitat values for small wildlife, and contributes to more stable ground conditions, by maintaining the vegetative root mass. [emphasis mine]
[33] Phase 5 is described by counsel for B.C. as the Refinement of Options - Clarification Report - April 8, 2004 to May 10, 2004. The main events were:
(i) On April 8, 2004, MOT submitted to the EAO a Clarification Report for the West Vancouver segment of the Project which summarized matters and presented Options "B" and "D" for certification by provincial authorities in lieu of the previously selected options. Also on that date, the Agency wrote to the applicant indicating MOT had provided it with further information and mentioned to Mr. Jenkins the Clarification Report had indicated opportunities to pull the highway away from the swamp edge would be investigated during the preliminary and detailed design stage should that option be selected.
(ii) On April 20, 2004, the BTWG met to provide preliminary response to the Clarification Report. Mr. Jenkins, who represented West Vancouver, commented that the Clarification Report underestimated the impact in terms of blowdown. The following was recorded in the Committee minutes:
Stephen Jenkins advised that impact has been underestimated in terms of tree blow-down. Western Hemlock has shallow roots and is particularly susceptible to wind. Squamish winds present challenges to retaining trees, particularly with any north-south alignment. This would particularly increase requirements for clearing in areas of second growth Hemlock.
Action Item: MOT to retain an arborist to assist with a final design. [emphasis mine]
(iii) On April 30, 2004, West Vancouver submitted its comments to (B.C.) MOT on the Clarification Report to EAO. Mr. Jenkins wrote :
Forest edge management
Although the meeting minutes of April 20th 2004 reflect this item as one that will be further investigated at the design stage, West Vancouver contends that this is too late. This issue clearly has "the potential for significant adverse effects" both from a direct impact perspective and also a cumulative impact perspective, as the more trees that are lost from the wetland, the greater the overall impact to the hydrology, wildlife and productivity of the area.
If option B is chosen, the road will have a North-South alignment through the wetland and will go through a second growth stand of predominantly Hemlock, Douglas-Fir and Western Red Cedar. Additionally the famous "Squamish" winds have a major influence in this area. Signs of natural blowdown are evident in the area at present and clearing of the area will only accelerate this process. [emphasis mine]
Mr. Jenkins then pointed out the trees in the wetland had limited root depth due to either poor genetic rooting structure or the high water table.
(iv) On May 3, 2004, B.C. WLAP advises B.C.'s MOT that "a windthrow risk assessment should be undertaken such that any windthrow damage can be predicted and managed".
(v) On May 4, 2004, DFO provided its comments on the Clarification Report and stated DFO would like the proponent (MOT) to confirm "whether additional clearing will be required in riparian areas to avoid blowdown". Other RAs also commented.
(vi) On May 5, 2004, MOT provided its response to the comments it had received on the Clarification Report. It wrote the following:
(1) What measures are available to address impacts to the wetland? Is compensation being considered? (DFO, Environment Canada, WLAP)
MoT Response: Impacts to the wetted area of the swamp habitat and bordering vegetation will be either avoided through horizontal adjustments to the alignment or mitigated through design features, such as retaining walls. Compensation is not being considered because MoT's intention is to apply DFO's hierarchy of preferences and first relocate, redesign or mitigate the potential impact at preliminary design.
(2) Will additional clearing be required in riparian areas, including the wetland, to avoid blowdown? Will the trees in the swamp be more susceptible to windthrow? (DFO, West Vancouver, WLAP)
MoT Response: Reference is made to the attached response prepared by: Dr. Julian A. Dunster, R.P. Bio., R.P.F., M.C.I.P., ISA Certified Arborist, ASCA Registered Consulting Arborist # 378, that addresses forest edge management issues in the upper Larson Creek drainage basin.
Reference is made to the attached memorandum dated April 19, 2004 prepared by Mr. Bob Wallrock, P. Eng., Hay and Company Consultant Inc. describing the Larson Creek hydrology; and the Larson Creek Drainage Plan, dated April 16, 2004. [emphasis mine]
(vii) The pertinent part of Dr. Dunster's report as it concerns windthrow reads:
The area of concern appears to be primarily a small 'arm' extending westwards at the northern end. In reviewing the forest edge issues, the main factors to consider would be soil moisture regimes, wind patterns, and site aspect (orientation towards the sun).
. . .
The potential for windthrow of trees in this area is acknowledged as an issue. Whenever a forest is opened up a new edge is created. Normally, the adjacent trees grow codominantly - that is their crowns overlap each other, and some degree of stability is attained for individual trees as the neighbouring trees provide shelter and resistance to excessive movement in strong winds. Removal of adjacent trees can introduce a new set of dynamic forces. The remaining trees are able to sway much more when neighbouring support is lost, and in some cases complete uprooting ensues.
My experience in the Lower Mainland is that windthrow can occur from any compass direction on a wide range of site and soil types, slopes, and aspects. It is not always easily predicted. I noted on my field trip that there was one Douglas-fir windthrown from west to east just south of the wetland area, and closer to Larson Creek, a hemlock windthrown from south to north. I have not yet had time to investigate where other windthrow has occurred in this area, but I would expect to see several incidences reflecting a variety of wind directions. Typically, forests reach a stage in their development when some of the population is removed by poor health, windthrow, structural weakness, or chance. In some cases the space created by a dead tree is sufficient in size to allow passing winds greater access into the remaining trees, and progressive windthrow can result. In other cases, there may be no further disturbance and the surrounding trees grow laterally into the space.
The forest cover along the ridgeline west of the wetland appears to be very variable in age class, and stand density, and the land form varies from relatively flat land to hummocky with rocky bluffs. The forest cover to the east is continuous and would remain so after the road was built. Creation of a road in this area may alter wind influences at the local scale and it is conceivable that some trees may be lost as a result. However, at this stage I am not able to determine whether or not the presence of the road would create windthrow, nor how extensive it might be.
It would require more time to undertake detailed site assessments to delineate forest types, topography, species, age and tree heights. It would also require a review of past weather patterns, especially wind speeds, wind direction, and rainfall. Even then, windthrow prediction is not a simple matter beyond identification of the most obvious trees that might be clearly considered to be already unstable. In the 'right' circumstances no tree is windfirm and there are no guarantees of continuing stability. Once more detailed information about this site is available, it may be possible to recommend more specific windthrow mitigation options, such as practices like spiral thinning, and feathering of the forest edges. These are very site specific aspects and cannot be determined at the preliminary design stage. [emphasis mine]
(viii) As a result of a site inspection performed on April 26, 2004, Bob Wallrock of Hay & Co. ("Hayco") Consultants provided a report on the hydrology issues pertaining to Larsen Creek and its wetlands as described in the Clarification Report.
The Hayco Report identified the alignment for Option B would cross the Larsen Creek drainage basin leading to "a slight increase in the impervious area within the catchment" but that "the critical area of concern, namely the swamp area" was best represented as a sub-catchment area where the loss of "[I]mpervious road runoff would therefore represent a rather insignificant portion of the total drainage to the lowland areas".
The Hayco Report also mentioned several mitigative measures "which can be utilized to reduce impacts to the hydrology of the basin". He referred to permeable embankment fills, to bio-filtration swales, to retention ponds and to porous asphalt.
(ix) On May 7, 2004, a meeting of the Project Working Group was held at which were present MOT consultants, federal and provincial officials and some shareholders. West Vancouver could not be present. The following was recorded in connection with "Tree Blowdown" and next steps:
3.2 Corridors - Tree Blowdown
The MoT has retained an arborist to address the District of West Vancouver's stated concerns with regard to accurately assessing the extent of tree blowdown related to each of the alternatives. The arborist concluded that more detailed studies would need to be undertaken to formulate specific windthrow mitigation options.
Angela Buckingham acknowledged this could be an issue but there are mitigating measures such as feathering and tree trimming.
Action Item: Add to commitment table - MoT to pursue the detailed windthrow studies and development of mitigation measures recommended by the arborist.
4. NEXT STEPS
Paul Finkel noted that the working group had resolved issues along the rest of the highway alignment to Whistler and recent focus has been on specific issues related to the West Vancouver section. He asked the working group if either Option B or Option D had the potential for significant adverse effects. The opinion of the reviewers at the meeting was that, with mitigation applied, neither option had the potential for significant adverse effects. [emphasis mine]
This is the last meeting of the working group, and Finkel thanked the agencies and First Nations for their participation in the review of the Sea to Sky Project. Any follow-up will now be on an individual basis. [emphasis mine]
(x) On May 10, 2004, a teleconference was held by the Project Working Group. The following is recorded:
Paul Finkel said that the purpose of the meeting was to discuss the District of West Vancouver and Squamish and Lil'wat First Nation comments on the Sea-to-Sky Highway Improvement Project Clarification Report: Horseshoe Bay to Sunset Beach (West Vancouver Segment), April 2004 (West Vancouver Clarification Report) and the responses from the MoT. He briefed the District of West Vancouver and the Squamish First Nation's technical consultant on the discussion of the working group meeting of May 7, 2004. The provincial and federal agency representatives concluded that neither Option B nor Option D described in the West Vancouver Clarification Report would result in significant adverse residual effects. He said that Dave Carter of DFO informed the working group meeting on May 7th that DFO made a field visit to the wetland area impinged by Option B and is of the opinion the wetland in the area of Option B contributes less to the hydrology of Larson Creek than previously considered. There is some potential for an incremental effect from Option B, but DFO does not consider this would be substantial.
The District of West Vancouver (DWV) made the following comments:
· The DWV concerns as expressed in its letter to the EAO of April 30, 2004 remain.
· The DWV reserves judgement, has no further comments on the response document at this time and will review other options available to it for addressing these concerns.
Paul Finkel asked the MoT what follow-up consultation the MoT planned with the District of West Vancouver? Peter Milburn responded that the MoT would consult with the District as the MoT fine-tuned the alignment and would also seek technical input and input on property values. Paul Finkel said he wanted to be clear about the measures proposed by the MoT as follow-up is also referenced in the West Vancouver Clarification Report.
David Stuart said the DWV believes that if both options are certified, the MoT will then select the overland route and inform the DWV of their decision. He said that the DWV believes that the MoT has identified substantive environmental impacts and the impacts are avoidable. He stated that the MoT's main argument against avoiding these impacts is one of costs and the fixed budget for the Project. The DWV is perplexed that the MoT refers to costs in this context and then refers to the P3 partnerships and the cost savings that will result. The cost of avoiding impacts is not an EAO decision but should be reflected in the text of the document to Ministers. He said there are not only environmental effects associated with the options but also socio-economic effects and in this context the cost issue should be examined.
The DWV asked whether the avenue of writing to federal agencies was still open given that the agencies had concluded that the Project would not have significant adverse effects? Paul Finkel said that the DWV was free to write to the federal departments at any time to comment on the environmental assessment under the Canadian Environmental Assessment Act.
There being no further questions or discussion, Paul Finkel outlined the next steps in the EA review:
· The third and final draft of the assessment report would be issued this week.
· Reviewers will have a maximum of 5 working days for review and comment.
· The EAO will then finalize the report and refer the Project to provincial ministers for a decision. [emphasis mine]
[34] Phase 6 is described as "Submission of application for certification to Provincial Ministers and Federal Responsible Authorities" and covers the period from May 10, 2004 to June 10, 2004.
(i) On May 10, 2004, an addendum to the Cumulative Effects Assessment Report was filed. On loss of common vegetation it said this:
Loss of common vegetation.
The Application noted that 113 ha of natural habitat would be lost cleared for the Project, including 106 ha of common natural vegetation. MoT had committed to protecting approximately 4 ha of red-listed plant community, 2 ha of blue-listed and 1.3 ha of dry arbutus habitat, as compensation. These areas were subtracted from the total 113 ha of natural habitat affected to arrive at the 106 ha. This approach was explained in the CEA work plan and reviewed and accepted by the responsible authorities.
The CEA considered the loss or alteration of 32,568 ha, or 3% of common vegetation in the 1,068,800 ha Squamish Forest District (SFD), as a result of timber harvesting and other developments, including the STS Project. The CEA noted that the tunnel option contributed 106 ha to the 32,568 ha total (3.05% of the SFD, rounded to 3%).
If Option B, the 4-lane overland route, is constructed, the project will affect 111.3 ha of common vegetation. If Option D, the two-way 2-lane tunnel, is constructed the Project will affect 107.9 ha of common vegetation. As the following table shows, timber harvesting and other developments, including the STS Project, will result in a cumulative loss of 3.05% of common vegetation in the 1,068,800 ha SFD. This is true regardless of which option (B or D) is selected between Horseshoe Bay and Sunset Beach. The CEA conclusion remains unchanged: "it is unlikely that there will be a significant adverse cumulative effect on common vegetation".
(ii) On or about May 20, 2004, the EAO issued the provincial Assessment Report to the provincial ministers. This is what was said about the blowdown issue:
The District of West Vancouver is concerned that if Option B is chosen, the road will have a North-South alignment through the wetland and will go through a second growth stand of predominantly Hemlock, Douglas-fir and Western Red Cedar. Additionally the famous "Squamish" winds have a major influence in this area with signs of natural blowdown evidence in the area at present and clearing of the area will only accelerate this process.
An attachment to the West Vancouver Clarification Report, prepared by a certified arborist retained by the MoT (Dr. Julian Dunster), reports that windthrow prediction is not a simple matter beyond identification of the most obvious trees that might be clearly considered to be already unstable and acknowledges that the potential for windthrow of trees in this area is an issue. The arborist's response advises that more detailed information about this site is required before it is possible to investigate more specific windthrow mitigation options.
At its meeting of May 7, 2004, the BTWG reviewed the issue of forest edge impacts and the information provided by the MoT in response to working group comments on the West Vancouver Clarification Report. If Option B is selected, the MoT will be expected to undertake more detailed site assessments to delineate features such as forest types, topography, species, age, and tree heights and investigate more specific windthrow mitigation options where feasible. [emphasis mine]
(ii) On June 14, 2004, an Environmental Assessment Certificate was issued by the Provincial Government to MOT in respect of the Project. That certificate was issued subject to the following conditions:
1. The MoT must cause the Project to be designed, located, constructed, and operated in accordance with the Conditions of this Certificate and the documents and correspondence listed in Schedule A, and the MoT must comply with all of the Conditions of this Certificate to the reasonable satisfaction of the Minister.
. . .
5. The MoT must submit, to the satisfaction of the Executive Director, quarterly reports on the status of compliance with the Conditions of this Certificate, and the documents and correspondence listed in Schedule A, from the date of issuance of this Certificate until completion of Project construction on all work packages. The Executive Director may adjust or extend this reporting requirement by providing written notice to the MoT.
Suspension, Cancellation and Amendment of Certificate
11. This Certificate may be subject to cancellation, suspension in whole or in part, amendments, or the attachment of new Conditions, for any of the following reasons:
a) the Minister has reasonable and probable groun