Vol. 150, No. 21 — October 19, 2016
SOR/2016-268 October 7, 2016
CANADA SHIPPING ACT, 2001
Regulations Amending the Vessel Operation Restriction Regulations
P.C. 2016-864 October 7, 2016
His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to paragraph 136(1) (see footnote a) and section 207 of the Canada Shipping Act, 2001 (see footnote b), makes the annexed Regulations Amending the Vessel Operation Restriction Regulations.
Regulations Amending the Vessel Operation Restriction Regulations
1 Part 2 of Schedule 2 to the Vessel Operation Restriction Regulations (see footnote 1) is amended by adding the following after item 100:
The waters of the main channel of the Columbia River and its tributaries lying within the flood plain of the Columbia River north of 50°21′10′′ N (approximately 1.6 km northwest of Fairmont Hot Springs) and south and east of a point at 51°28′48′′ N 117°09′33′′ W, on the northernmost tip of a small island, approximately 1.8 km south of the Trans Canada Highway bridge at Donald, British Columbia, but excluding the waters of Windermere Lake (see Note 4)
Columbia River — main channel
Fairmont Hot Springs to Golden
48°59′59′′ N 117°37′59′′ W
2 Part 2 of Schedule 2 to the Regulations is amended by adding the following after Note 3:
Note 4: The prohibition does not apply to a vessel propelled by a motor with an engine power of 15 kW or less.
Coming into Force
3 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Increased water activities due to population growth and the technical evolution of vessels have resulted in an increase in conflicts between waterway users and, as a consequence, increased risk to sensitive ecosystems.
In British Columbia (B.C.), the B.C. Ministry of Environment and Wildsight, an environmental organization, have jointly requested a year-round restriction on the operation of power-driven vessels on the main channel of the upper Columbia River and its tributaries in order to increase protection of the marine environment and increase public safety (vessels with motors 15 kW [20 hp] or less would be exempt). The area affected by the proposed restriction is contained within a B.C. Wildlife Management Area (WMA), thus making it a protected area. However, the Province of British Columbia cannot regulate navigation on the Columbia River or wetland areas within the WMA. Scientific literature indicates that the operation of motor vessels near and in wetlands can have a profoundly negative effect on individual organisms, vulnerable species, and ecological integrity.
The existing towing restriction on the main channel of the Columbia River has provided some protection for the area, but after further consultation with stakeholders, it was concluded that an additional restriction to limit engine size will meet the original intent of the applicants to protect this sensitive river and wetland complex, as well as provide additional safety benefits for all Canadians who use this waterway.
The Vessel Operation Restriction Regulations (VORRs) made pursuant to the Canada Shipping Act, 2001 (CSA 2001) provide for the establishment of restrictions to boating activities and navigation on Canadian waters. Increased water activities due to population growth and the technical evolution of vessels have resulted in more people using waterways, and led to an increased safety risk to users. Each year, Transport Canada (TC) receives a number of applications from local authorities to impose or amend restrictions on navigation in order to enhance the safety of navigation or to protect the environment and the public interest.
The 2 044 km-long Columbia River is the largest river, by volume, flowing into the Pacific Ocean in the western hemisphere and the second largest river, by volume, in North America (after the Mississippi River). In order to protect the environment and wildlife in the Columbia Wetlands WMA, the B.C. Ministry of Environment made an order under the B.C. Wildlife Act restricting all motorized conveyances in the area to a maximum of 7.5 kW. This order was subsequently challenged in court, and the British Columbia Court of Appeal struck down the provincial order, as it applied to vessels operating in navigable waters. Local stakeholders, environmental organizations, local and provincial levels of governments, Members of the Legislative Assembly, and federal Members of Parliament have been consistent in urging the federal government to enact regulations to restrict navigation in the Columbia Wetlands complex.
The Regulations Amending the Vessel Operation Restriction Regulations, prepublished in the Canada Gazette, Part I, on June 28, 2008 (Canada Gazette, Vol. 142, No. 26), received comments during the 60-day comment period. The seasonal prohibition on the main channel of the Columbia River was identified as problematic. The Minister of Transport decided to proceed with the non-controversial parts of the Regulations — which were published in the Canada Gazette, Part II, on August 19, 2009 (Canada Gazette, Vol. 143, No. 17, SOR/2009-213, July 30, 2009) — and to engage in additional consultations on the proposed restriction for power-driven vessels on the main channel of the river. The non-controversial elements included two restrictions which were enacted under the VORRs, specifically a prohibition on the operation of power-driven vessels and vessels driven by electrical propulsion in the wetlands of the Columbia River (Part 2 of Schedule 2 [item 100]), and a prohibition on towing persons on water skis, surfboards, or other similar equipment in the main channel of the Columbia River, at any time (Part 2 of Schedule 7 [item 10]).
Transport Canada Marine Safety and Security (TCMSS) and Environment Canada (EC) Wildlife Services are working together to establish a simple, effective and enforceable regulatory regime through the VORRs for the main channel of the Columbia River and its tributaries located in southeastern British Columbia.
The objectives of the amendments are twofold:
- To enhance the safety of navigation, both commercial and recreational, by restricting or prohibiting the type of vessel and speed of the vessel, thus resolving the conflicts between waterway users that give rise to safety risks. This is expected to have a positive impact on public safety.
- To minimize threats to the ecosystem of the Columbia River (Columbia Wetlands complex) in southeastern British Columbia caused by the operation of power-driven vessels. Scientific literature clearly indicates that the operation of motor vessels near and in wetlands can have profoundly negative effects on individual organisms, vulnerable species, and ecological integrity.
These objectives will assist in promoting a viable and effective use of Canadian waters; promote safety for both recreational boaters and commercial operators; and help protect the environmental sensitivity of the main channel, wetlands and tributaries of the Columbia River.
The Regulations Amending the Vessel Operation Restriction Regulations (Columbia River) implement a year-round restriction on the operation of power-driven vessels on the main channel of the upper Columbia River and its tributaries (between 1.6 km northwest of Fairmont Hot Springs and Donald Station) in British Columbia. Vessels with motors 15 kW (20 hp) or less will be exempt from this restriction.
The “One-for-One” Rule does not apply to this proposal, as there is no change in the administrative costs to businesses.
Small business lens
The small business lens does not apply to this proposal, as there are negligible costs to small businesses.
Consultations regarding the new restriction set out in the amendments to the Regulations were conducted by a broad-based stewardship partnership and the co-applicants, Wildsight and the B.C. Ministry of Environment.
Under the provisions of a Memorandum of Understanding between the federal government and the provinces, applicants for restrictions (generally municipalities) are responsible to ensure that full consultation with local stakeholders has taken place for each proposed restriction, in accordance with the standards set out in the Local Authorities’ Guide. The Guide identifies a list of stakeholders to be consulted, including, but not limited to, the following groups:
- pleasure craft users;
- cottage associations;
- pleasure craft rental agencies;
- marine safety organization;
- First Nations, Inuits and Métis communities;
- marine industry representatives; and
- pleasure craft organizations.
The public consultation process may include advertisement in local newspapers, posting of signs at the site indicating the proposed restrictions being considered, and leaflet distribution in the areas concerned during the summer period when stakeholders are in the area. This is often followed by a “town hall” type meeting and, in certain circumstances, direct written correspondence to specific stakeholders. These processes ensure that persons affected by the amendments to the Regulations are directly consulted by local authorities and that they have the opportunity to provide comments and request changes.
The Columbia Wetlands Stewardship Partnership (CWSP) is a management group with a membership consisting of over 35 stakeholder groups, including all federal and provincial agencies concerned with the Columbia Wetlands complex, all local non-governmental organizations with an interest in the river and wetlands and representatives (councillors, mayors, regional district representatives and business operators) from each of the communities along the wetlands. With the sponsorship of the B.C. Ministry of Environment, the CWSP has become one of the main forums for stakeholder consultation. Through this consultation forum, all local governments demonstrated their support for the amendments to the Regulations.
Consultations conducted by Wildsight (the co-applicant) included newspaper articles, town hall meetings, interviews with industry organizations, and broad-based mailings. Since 1997, Wildsight has published over 80 articles in local newspapers. Wildsight posted signs near boat launches and erected information kiosks to educate users to the sensitivity of the area and to inform users of the proposed restriction.
Between 2005 and 2007, the co-applicants consulted over 45 different stakeholder groups through town hall meetings and meetings with stakeholder groups and individuals. The general consensus was that a problem existed and that action needed to be taken to mitigate the environmental risks and impacts on the Columbia River Wetlands complex by the wake, noise and pollution created by vessel operation in the area. It was also agreed that safety risks were increasing due to demographic changes in the Columbia Valley. Since 2009, community meetings on the issues have continued as well as ongoing meetings of the CWSP, which occur at regular intervals three times per year. Consultations took place between EC and TCMSS Headquarters, as well as with the TC regional office in the Pacific region, through the Pacific Recreation Boating Advisory Council (RBAC), which also represented the interest of business operators, and stakeholders.
Consultations on the amendments have been generally met without controversy or opposition with the exception of one group. The Columbia Valley Protection Society (CVPS) has expressed their opposition to any restriction on the main channel of the Columbia River and has contacted the Minister of Transport through a number of letters and emails. The CVPS continues to oppose any potential restriction on the main channel of the Columbia River. The CVPS opposed the scientific evidence and countered with their own literature review prepared by Iris Environmental Systems Inc. A small portion of the opposition group is affected by the amendments. Public consultations in 2008 supported a strong regulation, ranging from 72 to 81% in favour. Further polling in July 2009 sponsored by the East Kootenay Conservation Program, of which both EC and the B.C. Ministry of Environment are members, reaffirmed that residents of East Kootenay are strongly in favour of environmental protection activities.
First Nations, local governments, and recreational user groups continue to support this initiative, as evidenced through ongoing community meetings following the original proposed amendment and subsequent discussions at regular CWSP meetings which occur three times per year. A number of residents in the area have indicated that an absolute prohibition of power-driven vessels in the spring and early summer would unreasonably interfere with their access to the river. Typically these users operate low-powered motors up to 15 kW (20 hp).
On the advice of the CWSP in May 2009, the applicants decided to modify their proposal for the main channel of the Columbia River from a seasonal prohibition to a year-round 15 kW (20 hp) limit. This was believed to provide local users with a reasonable compromise, without negatively impacting the environmental goals of the regulatory proposal. Environment Canada agreed.
Consultations were held on July 28 and 29, 2009, by Wildsight and the B.C. Ministry of Environment, with support from regional TC and EC staff in Golden, Briscoe and Invermere. The results of the consultations are approximately split between those in favour and those against. This round of consultations indicated that 59% of those polled were in favour of a restriction, which was attributed to stakeholders being satisfied with the recently agreed upon wetland restriction prohibiting power-driven vessels and the towing restriction on the main channel of the Columbia River.
Local levels of government, First Nations and a number of national and international non-governmental organizations are still supportive. In April 2012, TC received a letter from the Regional District of East Kootenay (RDEK) that their Board had passed Resolution 42987 in support of a year-round prohibition on vessels over 15 kW (20 hp) on the main channel of the Columbia River. There is strong support from the Aboriginal community and an existing exception was made for trappers holding a provincial licence who require access to the wetlands year round and to the main channel. These persons operate small boats with small motors and are fully aware of wildlife issues in the area. Currently, an exception exists for persons engaged in subsistence hunting and trapping. Further background information on Aboriginal consultations can be found in Vol. 143, No. 17 of the Canada Gazette, Part II, dated August 19, 2009.
In addition, EC, the B.C. Ministry of Environment and Wildsight remain committed to the importance of the restriction and are further supported by local communities, enforcement agencies and local governments.
The problem area has been assessed and the type of restriction matched to the circumstances of the case. The CWSP continues to keep the amendments at the forefront of discussions at their regular meetings.
The Regulations Amending the Vessel Operation Restriction Regulations were published in the Canada Gazette, Part I, on April 2, 2016, followed by a 30-day comment period. During this time, TC received a total of 1 710 comments. An individual response was provided to each stakeholder. Due to the overwhelming number of incoming comments, correspondence was separated into three categories: those in support, those in opposition, and “other.”
Of the 1 710 comments, 1 452 (85%) were in full support of the proposed amendments. Many of the incoming comments suggested a preference for a further reduced hp restriction or the possibility of a speed restriction. Some also suggested that a full ban on motorized traffic on the Columbia River would be preferable. However, these stakeholders agree that a 15 kW (20 hp) restriction is an agreeable compromise. Comments in support were received from individuals all across Canada, the United States and from many other countries across the world.
A total of 207 (12%) were opposed to the proposed amendments. It was evident from the comments received in this category that there was a modicum of misinformation regarding the proposed amendments in that stakeholders were under the impression that the 15 kW (20 hp) restriction was applicable to the waters of Lake Windermere as well as Columbia Lake. This is not the case. Lake Windermere and Columbia Lake are not included in the area of the restriction. The response from TC to stakeholders included clarification on this issue. The remaining comments suggested that further restrictions were unnecessary since there is very little powered traffic on the Columbia River.
A total of 51 (3%) comments were counted in the “other” category. Comments in this category included those which did not specifically state their support or opposition to the proposed amendments, including those seeking further information, asking questions, sending pictures or additional information and those confirming receipt of TC’s response.
The new vessel restriction being introduced in the amendments to the Regulations will result in minimal costs to industry, recreational users, and governments. Government costs are related to the enforcement and implementation of the restrictions, including the posting of signage. Once the local authority has erected information signage, no additional resources are required except for the maintenance of signs and enforcement measures.
The intent of this restriction is to enhance the safety of navigation, both commercial and recreational, by prohibiting vessels propelled by a motor with an engine power greater than 15 kW (20 hp) from using the main channel of the Columbia River and its tributaries, thus reducing the conflicts between waterway users that cause unnecessary safety risks. This is expected to have a positive impact on public safety. The restriction will also minimize threats to the ecosystem of the main channel and tributaries of the Columbia River in southeastern British Columbia, caused by the operation of power-driven vessels. In addition, it will help protect the unique Columbia Wetlands complex, which is considered of international importance.
Failure to regulate boating on the main channel and tributaries of the Columbia River will likely result in the degradation of habitat, will likely have an impact on communities of nesting waterfowl and other impacts on wetlands species, and will possibly result in the degradation of levees that contribute to the integrity and protection of the Columbia Wetland complex’s environment. This information was identified in the Conservation Rationale prepared by the Canadian Wildlife Service and EC in July 2007, and is available upon request. The amendments will protect the shorelines of the main channel from erosion and provide a safer environment for Canadians. The engine limit (15 kW or 20 hp restriction) will reduce the severity of interactions between power-driven vessels, non-power driven vessels and other users of the waterway, and will provide more time for vessel operators to avoid incidents. Failure to regulate could result in continued boating behaviour that, in the context of the identified section of the Columbia River, has been deemed both unsafe and harmful to the environment.
Protecting the shoreline by reducing erosion (a collateral benefit of reduced engine power limits) may also contribute to the protection of the riparian environment.
The Columbia Wetlands complex is one of only three wetlands in British Columbia to be listed as a Wetland of International Importance under the Ramsar Convention, to which Canada is a party. By ratifying the Ramsar Convention, Canada has agreed to formulate and implement plans for the conservation of the listed wetlands. The Federal Policy on Wetland Conservation, which is in part a response to Canada’s ratification of the Ramsar Convention, clearly commits federal departments to a precautionary approach when considering actions that could affect Canada’s remaining wetlands. The stated objective of the Federal Policy on Wetland Conservation is to “promote the conservation of Canada’s wetlands, and to sustain their ecological and socio-economic functions, now and in the future.”
The Columbia Wetlands complex is a vital habitat for migratory waterfowl travelling the Rocky Mountain leg of the Pacific Flyway, for nesting waterfowl and for water birds. Also found in the Columbia Wetlands complex are a number of species listed as species of special concern under the Species at Risk Act, including the Lewis’s Woodpecker, the Long-billed Curlew, the Peregrine Falcon, the Short-eared Owl, and the Painted Turtle. In addition, two endangered species, the Northern Leopard Frog and the White Sturgeon, are apparently extirpated from the upper Columbia River.
With a colony of more than 300 pairs, the Columbia Wetlands complex is home to the second largest concentration of Great Blue Herons in western Canada, and accounts for nearly 50% of all known, active heron nests in the Kootenay region of British Columbia. This subspecies has been identified by the B.C. Conservation Data Centre as “Blue” listed (meaning it is deemed to be at risk provincially) and is considered to be a conservation concern, particularly because these populations have very low reproductive success. Herons have been found to be sensitive to boating activities, and even low rates of nest abandonment in response to approaching boats could have detrimental effects on the overall breeding success of Great Blue Herons in the east Kootenay region.
More than 15 000 waterfowl have been counted in a single day in autumn and more than 1 000 Tundra Swans have been counted in the spring. Other birds sharing the wetlands include rare Trumpeter Swans, loons, grebes, gulls, terns, rails, bitterns, hawks, Bald Eagles, Ospreys and over 100 species of song birds. Elk, White-Tailed Deer, and Moose also depend on these wetlands for winter survival.
Due to its proximity to a major metropolitan centre, the area is under intense developmental pressure. The Columbia River and its associated wetlands, tributaries, and lakes are approximately a three-hour drive from Calgary, a city of more than one million people. In 2004, over 450 people per day were engaged in river rafting activities on the Kicking Horse River, adjacent to the Columbia River, near Golden, British Columbia, representing a significant increase over the previous few years.
A 2005 survey found that 47.9% of recreational users of Windermere Lake resided in Calgary and only 33.0% were from Invermere. Population statistics for the three incorporated municipalities in the area, Golden, Invermere and Radium Hot Springs, indicate 5%, 9% and 30% population growth, respectively, between 2000 and 2005. Although the overall numbers are modest, there is a steady upward trend in population growth, mainly due to recreational opportunities.
The restriction will increase the safety of Canadians. It will protect non-powered vessels, recreational boaters, and plant communities. Further, it will dramatically reduce harmful interference with the life processes of wildlife and will specifically protect the nesting and rearing sites of up to 95% of the nesting waterfowl in the Columbia Wetlands complex. Scientific literature indicates that the restriction will also reduce the likelihood of the introduction of invasive species.
The threats to this ecosystem posed by power-driven vessels with an engine power greater than 15 kW (20 hp) are significant. The scientific literature shows that the operation of high-powered power-driven vessels in wetlands can have profoundly negative effects on individual organisms, vulnerable species, and ecological integrity. Although non-powered vessels such as canoes and kayaks could potentially impact wildlife, the impact is negligible compared to those impacts of high-powered motorized vessels. The negative effects of power-driven vessels, with an engine power of 15 kW (20 hp) or greater, on birds and other wildlife are realized through disturbances (e.g. noise, wake and pollution) and direct impacts (e.g. nest flooding and brood separation). Other ecosystem risks relate to the disturbance of fish habitat during spawning periods, localized hydrocarbon pollution, an increased risk of the introduction of invasive species and an increased risk of levee failure due to vessel wakes.
The wetlands are protected from the main channel of the Columbia River by natural levees. However, during the critical period between March 1 and July 15, high water levels may cause the river to overtop the levees, creating a single extensive wetland system. In addition, during high water events the levee complex is especially vulnerable to mechanical failure.
The restriction on the main channel and tributaries of the Columbia River will protect the levees from mechanical failure during their most sensitive periods and will also provide protection to the spawning and rearing habitats of fish in the main channel and to bird species that move into the main channel from the wetland areas during high water events.
It is also expected that this restriction will contribute to the establishment of stable eco-tourism opportunities in the area; thus, it will be of financial and social benefit to local communities. The current eco-tourism excursions are primarily float trips down the main channel using small electric motors (to a maximum of 15 kW or 20 hp) to manoeuvre safely in the water current. The Columbia Wetlands complex is accessible from various locations and is highly visible, and it provides numerous recreational opportunities such as kayaking, canoeing, and bird watching. Eco-tourism is an important industry in the area and supports approximately 10 businesses. Consultation with the industry has shown that the restriction will have no negative impact on current commercial operations.
Rod and gun clubs have historically operated in the Columbia Wetlands complex, but these groups are generally supportive of the restriction and have stated that it will have very limited or no impact on current hunting and fishing practices.
Within the identified section of the main channel of the Columbia River, there is neither infrastructure nor are there services, such as public boat launches, marinas, or fuel docks, to support recreational boating. There is no known commercial fishing interest in the area of the restriction; therefore, there will be no impact in this regard.
Costs to consumers will be negligible, as most users of the waterway currently use non-powered vessels and wish to continue to do so. Operators of power-driven vessels with motors greater than 15 kW (20 hp) will be affected, but will continue to be able to experience the river system if they adhere to the restriction and operate a vessel with a motor of 15 kW (20 hp) or less. An exception already present in the Regulations is provided for persons who cannot access their waterfront property by road.
There will be ongoing costs related to the erection of signage and to enforcement-related activities. The B.C. Ministry of Environment and the Province of British Columbia have committed to being accountable for these costs.
The amendments will have significant positive environmental and safety impacts, which will far outweigh the minimal impacts to the local and business community. Community meetings on the issue have continued to be held, as have ongoing meetings of the CWSP.
Implementation, enforcement and service standards
The CSA 2001 provides for a maximum fine upon summary conviction of $100,000 or one year in prison, or both, for violations of regulations made under Part 5 of the Act, which includes these Regulations. Enforcement is conducted by way of summary conviction or ticketing under the Contraventions Act. The Contraventions Regulations, made pursuant to the Contraventions Act, set out prescribed fine amounts for contraventions of regulations made under the CSA 2001. The Regulations specify the classes of persons who are entitled to enforce the Regulations, classes that include the Royal Canadian Mounted Police (RCMP) and provincial and municipal police forces, and other classes such as special constables, conservation officers, wildlife officers, and marine safety inspectors.
The Province of British Columbia has formally guaranteed to enforce the restriction in the amendments to the Regulations. Enforcement will be handled by the B.C. Conservation Officer Service and the B.C. park rangers, and the Province will also maintain the required signage. No increase in the cost of enforcement to the federal government is expected. Local enforcement agencies normally conduct enforcement measures incidental to their other duties; therefore, no significant increase of enforcement costs to local governments is anticipated.
As matters pertaining to navigation, both recreational and commercial, fall under the jurisdiction of the federal government, the amendments to the Regulations are used as a mechanism whereby local authorities can respond to local safety situations and threats to the environment or the public interest by partnering with the federal government to enact regulations under the CSA 2001. Since the philosophy behind the Regulations is one of partnership among federal, provincial and municipal governments through an existing program, TC staff provides regulatory briefings and other support to assist local enforcement agencies in their enforcement functions.
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