BLESS and ABC Concerns Arising from the May 7, 2004, Meeting with Regulatory Agencies Related to the St. Albert West Regional Road Environmental Screening

19 May 2004

Document in Word format.

Federal and provincial authorities met with the Big Lake Environment Support Society (BLESS) and the Anti-Bypass Coalition (ABC) on May 7, 2004 to review processes as they relate to the environmental screening for the St. Albert West Regional Road (WRR). Representatives from Fisheries and Oceans, Environment Canada, Alberta Environment and the Canadian Environmental Assessment Agency were present at the table.

Several issues arose during the short meeting for which there were no clear resolutions or agreements. Consequently, BLESS and ABC were asked to submit concerns in writing through Mr. John Englert, DFO, for dissemination to and consideration by the other agencies. Because of the seriousness of the issues raised, we are also forwarding our concerns to the applicable federal and provincial ministers and ask that this submission be included in the public registry for the project as a permanent record of concerns.

Federal Wetland Policy Regarding Alternatives

The issue of alternatives to the proposed road is the paramount outstanding issue. The meeting revealed there is still confusion among agencies involved in the screening as to whether the Ray Gibbon/Riel Drive alignment was put forward by the proponent as an alternative to the West Regional Road, even though that alignment was described in detail in the proponent’s environmental assessment. In fact, it appeared as if a representative from Environment Canada still thought the original bypass, proposed in the mid 1990s, which would have been situated closer to Big Lake, was presented as an alternative even though the original bypass was not presented as an alternative in the EIA. (See Note 1, at the end of this Brief)

It was also clearly evident from the meeting that no federal or provincial agency has evaluated the proponent’s arguments regarding alternatives. BLESS and ABC see the absence of an evaluation as a very serious failure of the screening process. The proponent’s argument that the Ray Gibbon/Riel Drive alignment doesn’t meet the City’s needs is specious. The Ray Gibbon/Riel Drive alignment is a viable alternative that would avoid most of the serious environmental hazards and destruction of habitat associated with the current alignment.

Ray Gibbon/Riel Drive had just been the subject of an extensive study with full and open public participation when the current City Council took office in late 2001. The Ray Gibbon alignment had been accepted by the previous Council and had been written into the Municipal Development Plan for the City. In one of its first Council meetings on November 5, 2001, the new council asked for a scoping report from City Administration that would compare the two alignments (Ray Gibbon/Riel Drive and the new WRR) equally and provide suggestions for a public communication strategy and a public input process. On November 13, administration and its consulting company, Infrastructure Systems Ltd. (ISL) presented a proposal to Council that would collect information regarding the two alignments, consult with the public, conduct a geotechnical investigation regarding landfill and leachate issues, analyze the two alignments, carry out an environmental investigation and a traffic analysis and do a cost/benefit analysis on the two alignments. The study was to have taken four months and would have cost $116,000. City Council rejected administration’s proposal and instead, at the same meeting, passed a motion to proceed with the current WRR alignment.

Some of the information requested in Council’s meeting of November 5, 2001, was subsequently provided through the environmental assessment process for the WRR — but not all. The general public was never consulted as to choice of alignment. A cost/benefit analysis was never carried out. A traffic analysis and comparison was never done for the two alignments.

In a letter to BLESS dated May 27, 2002, the Honourable Ed Stelmach, Alberta Minister of Transportation wrote “The department considers the West Boundary Arterial Road location a City issue and, as such, the City of St. Albert is responsible to manage the design and development of the north/south route that is appropriate to meet local needs.” In his letter the minister refers to the proposed road as a “city arterial” (see letter from Alberta Minister of Transportation, attached).

City of St. Albert chief engineer Guy Boston, in a letter to BLESS dated February 10, 2004, alleged the current alignment was an “expressway” designed to satisfy regional transportation needs and argued the current alignment could not be replaced with the Ray Gibbon/Riel Drive alternative. BLESS replied on February 17, 2004 with design guide criteria from Alberta Infrastructure that proved the City was in fact constructing a local arterial road, a standard that Ray Gibbon/Riel Drive could easily satisfy. BLESS has received no further correspondence from the City refuting our argument.

Clearly, the proponent has not proven that a regional road is required, or that the far less destructive Ray Gibbon/Riel Drive alignment is not a viable alternative to satisfy local needs. In fact, surprisingly, at a recent meeting of City Council, the St. Albert Multipurpose Leisure Centre Community Dialog Report, dated April, 2004, was accepted without amendment or other change by Council even though the report promoted Ray Gibbon/Riel Drive (identified as “Riel West Boundary Arterial (RWBA)” as seen on the attached map from the report, entitled “Map #1 – Regional Access”, St. Albert, April 2004), as part of “the roadway network proposed to serve St. Albert and region in the long term” (“St. Albert Multipurpose Leisure Centre Community Dialogue Report”, under the heading “Regional Access to Campbell Site”, April, 2004, p. 17). (Note that Map #1 and its accompanying report, “Multipurpose Leisure Centre Community Report and Recommended Development Option”, dated April 22, 2004, were received by an unanimous vote of the St. Albert City Council, and accepted as presented by City Administration with review by the City Manager, at the public Council Meeting, May 4, 2004.)

BLESS and ABC submit that the Responsible Authority (RA) is deficient in failing to require that the City of St. Albert show cause as to why the Ray Gibbon/Riel Drive/RWBA alignment could not be used for this roadway, thus avoiding the wetlands, the old uncontrolled dump site and the former sewage lagoon which is still operated as a storm water facility.

The Department of Fisheries and Oceans sets out procedural steps respecting its “no net loss” policy which contain a guiding principle to achieve this goal. We quote: “As part of the examination step, a hierarchy of preferences will be used to guide both the Department and proponents”. (Canada Fisheries and Oceans Policy for the Management of Fish Habitat).

The first step is to assess the potential impact on fisheries and fish habitat. The second is to assess alternate alignments or other options and discuss them with the proponent.

It was clearly stated by Environment Canada at the May 7, 2004, meeting that they had not discussed the alternative with the proponent and professed that they were unaware that Ray Gibbon/Riel Drive/RWBA was an alternative presented and described at length in the EIA. Therefore, BLESS and ABC submit that DFO’s role as the Responsible Authority is deficient in not ensuring that this mandatory procedure was carried out.

We further submit that under the Fisheries Act, fish habitats are defined as those parts of the environment “on which fish depend, directly or indirectly, in order to carry out their life processes.” BLESS contends that the fish habitat associated with the wetlands, pond and river, crossed by the WRR, will be destroyed or significantly disrupted. We further submit that this WRR project carries with it such grave uncertainties DFO should reject the application.

At the May 7th meeting, BLESS raised the question of protection of wetlands with representatives from the Department of Fisheries and Oceans. Fisheries and Oceans officials deferred the response to Environment Canada. BLESS submits that the matter of wetlands is clearly within the mandate of DFO. Specific direction is given to the department in the Fisheries and Oceans Policy for the Management of Fish Habitat, approved by parliament on October 7th, 1986 and it is the view of BLESS that DFO cannot relinquish its direct responsibility in this matter to any other agency or provincial authority.

Under the Constitution Act, the federal government of Canada has jurisdiction over inland fisheries. The federal Fisheries Act gives the Minister of Fisheries and Oceans the legislative authority to protect fish and fish habitat from destructive activities in inland waters. The WRR presents a very real potential for serious destruction of fish habitat. BLESS submits that DFO is obligated to enforce the “avoidance principle” set out in the guidelines issued by the Minister, especially where a proven viable alternative road routing, ie, Ray Gibbon/Riel Drive/RWBA, exists.

In a memorandum from Environment Canada to Fisheries and Oceans dated November 10th, 2003, Environment Canada commented that “the federal government is ‘delimited’ in the application of the ‘no net loss’ policy because of its ‘respect’ for other jurisdictions and the rights of individual landowners”.

BLESS submits that DFO is the responsible authority and while it may seek advice from Environment Canada, the management and responsibility of fish habitat is within the exclusive mandate of DFO, and DFO cannot relinquish its authority in this matter.

In an e-mail message of November 10, 2003, Environment Canada provided DFO with the erroneous opinion that the Federal Policy on Wetland conservation does not trigger the requirement to consider alternatives. Notwithstanding that opinion, the Environment Canada official offered the following suggestion to DFO: “given that consideration of alternatives is part of the CEAA process, you may wish to have the Agency clarify whether this requirement has been met for the WRR.”

BLESS asked during the meeting if this matter had been followed up and received a negative response. Even worse, a DFO official stated that “if the proponent does not consider that there is an alternative, then there is no alternative”.

Environment Canada, along with DFO, has raised questions regarding jurisdiction. DFO also deferred matters related to this roadway application to the Province of Alberta Department of Environment.

BLESS submits that DFO may work and co-operate with the Province, but in no way may DFO relinquish its ultimate responsibility and authority in the matter of approval of a project that encroaches on matters of federal responsibility such as fish and fish habitat, wetlands, and migratory birds.

The Federal Environment Assessment Review Process (EARP) was created in 1984 and the Oldman River Supreme Court decision reinforced the exclusive authority of the Parliament of Canada in matters that enter an area of federal jurisdiction. Further, the court ruled that an environmental impact assessment is an essential component of federal decision making. Policies and guidelines are essential instruments in directing the manner in which federal institutions administer multifarious duties and functions.

We submit there are numerous and specific similarities between this (WRR) application and the Oldman River case where DFO was shown to have been deficient. For example in the summer of 1987, an environmental group wrote a letter to the Minister of Fisheries and Oceans asking for an environmental assessment. On May 7, 2004, BLESS asked DFO to insist on a review of alternatives to the WRR. DFO refused and would only agree to consider a submission from BLESS.

BLESS submits that DFO must fully comply with the policies and guidelines issued by the Minister. Therefore, DFO must require that the City of St. Albert show cause why an alternative must not be considered. Avoidance is the first step in mitigation and compensation is not an accepted form of mitigation when a viable alternative exists.

Federal policy states “In practice, the ‘no net loss’ goal provides a structured approach to land management decisions involving wetlands. No net loss requires project proponents to work through a strict sequence of mitigation alternatives – avoidance, minimization, and compensation – with clear criteria and defined outcomes. Mitigation alternatives and associated criteria should recognize the limitations in our understanding of wetland functions (and ways and means to assess such functions), as well as our capacity to rehabilitate or create new wetlands” (Federal Policy on Wetland Conservation Implementation Guide for Federal Land Managers).

Ray Gibbon/Riel Drive/RWBA was approved by a thorough public examination during a Municipal Planning Process and offers the best and only alternative to crossing the Sturgeon River west of the St. Albert Trail while avoiding the wetland, the old uncontrolled dump and the old sewage lagoon.

DFO is deficient in its responsibility for not following up on this issue which is clearly within the mandate of the Minister of Fisheries and Oceans. DFO has only to follow the directives issued by the Minister.

The DFO review of the St. Albert EIA is grossly deficient in this instance in the matter of wetland conservation for fish habitat. The viable alternative (Ray Gibbon/Riel Drive/RWBA) to a roadway that threatens fish habitat (WRR) is, and should be, a major consideration of this application for the western crossing of the Sturgeon River.

Public Participation

The lack of effective public participation is another failure of process. The proponent put forward a list of public meetings in support of the current alignment, half of which had been carried out for the Ray Gibbon/Riel Drive/RWBA alignment. Regulatory agencies appeared not to be aware of the inconsistency. When the participation applicable only to Ray Gibbon/Riel Drive/RWBA is removed, the remaining list contains not one meeting where the public at large was able to meet and discuss the project face to face with the proponent and its consultants.

The three meetings with BLESS on the WRR that the proponent put on the list did not result in BLESS receiving any significant information regarding plans for the road. In fact, during the last meeting with BLESS, the consultant for the environmental assessment banged his fist on the table in a fit of pique, a rather unprofessional, but typical, indication of the antagonism shown throughout this project towards opponents of the road.

The proponent cites City Council meetings as an opportunity for the public to bring forward concerns and questions regarding the road. The following example illustrates how ineffective that public process has been. On November 13, 2003, a BLESS representative addressed City Council during a Council meeting and pointed out conflicting statements between the WRR EIA and the newly issued Red Willow Park plan with regards to the dike along the south side of Riel Pond and the BLESS platform. The representative asked for a clarification of the City’s intent and the opportunity to review the plans for the road, and followed up the request in writing to City Council the next day. The Mayor responded by saying he had forwarded the request to the City Manager for action. When no response to the questions had been received by November 20, the BLESS representative contacted the City Manager in writing who indicated he had not received the request from the Mayor, but would cause the questions to be answered. By November 26 no answer had been forthcoming so the representative contacted the City Manager again. City Administration finally replied on December 15 with the statement that any modifications to the dike that affected access to the viewing platform would be coordinated with BLESS. To date, neither City Administration nor the City’s road consultants have contacted BLESS with regards to plans for the dike or the access to the viewing platform.

Few members of the public would be comfortable in broaching their questions through the formality of a Council meeting. Even fewer would have the time or persistence to follow up in the manner necessary to obtain answers. The lack of any public meeting on the WRR project has effectively kept the majority of St. Albert citizens in the dark as far as details of what is currently being proposed. Perhaps the best indication of the lack of public involvement in the current alignment is recorded under “Summary of Public Consultation” in the proponent’s EIA (Paragraph 3.2.2 on pages 3-5/3-6), which concludes “The public consultation process was suspended when a new St. Albert City Council adopted the current alignment in response to public pressure and other local and regional transportation considerations” [bolding ours].

In this regard BLESS and ABC draw attention to relevant sections of the CEAA (before and after the recent amendment) which we assert apply with respect to providing full, comprehensive and adequate public participation in the environmental assessment process to which a project such as the WRR project is broadly subject. Specifically, the reference in Section 62 (e) states that the objective is:

“to ensure an opportunity for public participation in the environmental impact assessment process”.

We further submit that within the general policy consideration of the amended CEAA, there is an obligation for the RA to apply Section 62 (g), which states the objective is:

“to ensure an opportunity for timely public participation in the environmental assessment process”.

In totality, it is obvious that within the intent of the overall objectives of the CEAA, to the letter and the spirit of the Act(s), that BLESS and ABC must submit that the proper time window for public participation would be the period following the release of the formal “Terms of Reference” in which the proponent’s EIA is subject to review and comment. How otherwise can there be meaningful public participation until the public sees the proponent’s EIA submission?

There has been a significant amount of misinformation about the road put forward by the proponent. The conflicting information between the EIA and the Red Willow Park planning document cited above is but one example. Another is the St. Albert Multipurpose Leisure Centre Community Dialog Report, released in April 2004, that shows the Ray Gibbon/Riel Drive/RWBA alignment (see attached Map #1) as being the western access road that will service the new centre. The plans in the public registry for the most recent bridge modifications submitted to Navigable Waters for approval differ from the plans the City Engineer is using. With such disconnects in communication even between City Administration and its consultants, it is no wonder the public labours under misconceptions about the proposed road, its environmental impact, and what it is intended to accomplish.

Public Registry

Many relevant documents comprising correspondence, technical reports and public concerns published in the local press were submitted to DFO by concerned members of the public, but have not been included in the public registry. As of last count the public registry was missing over 60 documents, not including press clippings that were submitted. Because they are missing from the registry, it cannot be determined that these relevant documents were considered by regulatory agencies as part of the screening process. The missing documents are critical to understanding the full extent of public concern that exists regarding this road alignment and the serious environmental issues that remain outstanding.

One of the most important technical documents missing from the registry is a 1997 EBA investigation that raised concerns about disrupting the equilibrium that had developed in the landfill area over the years. The engineering report also raised a warning about leachate entering the underlying aquifers through construction of bridge pilings. EBA 1997 recommended any road alignment avoid the old landfill, that the site not be disturbed, but instead continue to be used only for passive recreational activities. The report is cited as a reference in the proponent’s EIA, but its contents were not included in the EIA for review by regulatory agencies. A representative of the Anti-Bypass Coalition gave a copy of the 1997 EBA report to DFO in August 2003, early the screening process, and asked that it be considered by the review team and be included in the public registry for the project. DFO said the report was background information and refused to consider it for decision making or include the report in the registry. The EBA report is but one of the many documents that remain missing from the public registry for the St. Albert west road.

Regulatory agencies have requested some additional information from the proponent through the course of the screening. A review of documents in the pubic registry indicates not all the specific concerns raised by various agencies have been addressed by the proponent.

There are identified deficiencies with respect to the proponent’s EIA that do not appear to have been considered at all by the screening team. Some of these deficiencies were brought forward during the May 7th meeting. Most have also been raised previously in written submissions to DFO from BLESS and ABC with no satisfactory reply having ever been received. Following are some of the major outstanding deficiencies in the proponent’s EIA:

• failure to provide even general/conceptual calculations with respect to existing and project-related stormwater processing requirements and the capacities of reconfigured stormwater facilities
• arbitrary designation of Riel Marsh, a wooded wetland classified in the EIA as an “environmentally sensitive area”, as a new stormwater receiving water body (Volume I, Page 5-38) with no proposed mitigation or assessment as to deleterious effects of the change
• failure to carry out any study to assess the impact of road runoff and stormwater on the vegetation and wildlife habitat of the Riel Marsh wetlands
• failure to provide a map and inventory of existing vegetation in Riel Marsh as required by the Environmental Assessment Terms of Reference
• proposed destruction of significant open-water migratory waterfowl habitat in Riel Pond, comprising more than 16 ha, without any proposed compensation
• failure to propose a method for removing arsenic- and hydrocarbon-contaminated lagoon sediments identified in the EIA as being in excess of established guidelines
• failure to adequately test lagoon sediments to determine the full extent of sediment contamination
• failure to adequately address the effects of the proposed road on migratory waterfowl with respect to the Migratory Birds Convention Act (see letter from Canada Minister of the Environment, attached)
• failure to adequately address the probable extirpation of a rare bryophyte species (Alberta Government rating of S1) through road construction
• failure to seriously consider the effects of noise, air and light pollution on wildlife resident in the area, and human beings who use the area where the proposed road will be built
• failure to make a scientifically acceptable case for replacement of lost fish spawning grounds either at the bridge crossing or at the reconstructed lagoon dike
• proposed destruction of significant fish habitat associated with the fish-bearing waters of Riel Pond, comprising more than 16 ha, without any proposed compensation to reflect the no net loss principles of the Fisheries Act
• failure to provide appropriate mitigating measures for destruction of wildlife habitat and wildlife travel corridors for large mammals
• failure to acknowledge that the project will trigger major developments north and south of the outlet of big lake with cumulative effects that will considerably impact the wetlands and an area of the lake whose source of relatively early (and late) open water, in relation to the rest of the lake, is not known
• failure to meet the objectives of the Federal Policy on Wetland Conservation, as stipulated in the Terms of Reference, with respect to avoidance
• significant misrepresentation of the degree of impact the bridge will have on current and future navigation on the Sturgeon River (e.g., the EIA states: “During bridge construction, at least part of the channel would always be passable to watercraft and, once the bridge was constructed, it would pass all sizes of watercraft that it presently does” EIA Vol. I, Page 6-21 [bolding ours]). This does not reconcile with the approximate one metre of freeboard stated by the proponent for the bridge during periods of high water in contrast to the present condition of the Sturgeon River which has no structure impeding any navigation anywhere in the vicinity of the WRR crossing.
• failure to incorporate the recommendation of the Big Lake Basin Study for an additional metre of freeboard (The Big Lake Basin Study presented to City Council earlier this year recommended designing in an additional freeboard of one metre for new projects that impinge upon the floodplains. BLESS and ABC submit that the WRR is a new project and therefore subject to this engineering recommendation for an additional one metre of freeboard. The Big Lake Basin Study recommendation has not been reflected in any documents related to the West Regional Road.)

The proponent’s EIA is rife with ambiguous terminology. Phrases such as “it is not known”, it is very difficult to predict…, it might affect…, not expected to affect…, we are less confident…, prediction is uncertain…, not expected to affect adversely…, uncertainty of adverse impact…, it is thought to…, if the culverts function as planned…, effectiveness cannot be predicted…, animals are expected to exist…, lack of specific data.., uncertainty regarding this potential…, site impact cannot be meaningfully assessed…, it is unlikely that…” run throughout the document. Clearly, there are many issues for which the proponent has not provided adequate consideration in its EIA. The document does not inspire any degree of confidence that the project can be accomplished without serious harm to the environment.

As for the assessment of cumulative effects, the proponent’s EIA (Volume IV, Table 2.2) lists 14 (out of a total of 34) adverse residual impact characteristics as being uncertain. Many of those uncertainties apply to major and permanent impacts that remain unmitigated at this stage of the screening. Some degree of uncertainty no doubt exists as to the environmental degradation inherent in any project, but the degree of uncertainty indicated for this project is excessive given the sensitive nature of the wetlands and floodplains which the road will traverse and the significance of the area as an internationally-recognized important bird area. BLESS and ABC assert that the duties of the Responsible Authority under Section 4.(2) of the CEAA are clear. Given the degree of uncertainty associated with the West Regional Road, the precautionary principle must be invoked to prevent the project from proceeding.

Riel Pond

Regarding the pond sediments, there are conflicting reports from the same consultant concerning the need to remove arsenic- and hydrocarbon-contaminated sediments from Riel Pond prior to opening up the stormwater processing facility to the wetlands and the watershed. In early correspondence to the proponent, the consultant, Thurber Engineering, recommended removing the contaminated sediments. In the EIA the same consultant, Thurber, presented a proposal to leave the sediments in place. The EIA states that Alberta Environment will need to make a decision on whether or not the contamination must be removed. BLESS and ABC have stated our position on this matter before, but it bears reiterating. In some respects, arsenic is much more of a threat to the environment than even radioactive wastes. Arsenic is not biodegradable and unlike radioactive waste has no half life. Once placed into the environment, it persists forever to threaten wildlife and human beings who might come into contact with it. To risk spreading arsenic into the wetlands adjacent to Riel Pond, where it could ultimately be washed into Big Lake and the Sturgeon River watershed is unconscionable. It is our position that regulatory agencies must apply the precautionary principle in accordance with Section 4.(2) of the CEAA and mandate that contaminated sediments be removed from Riel Pond prior to any construction being undertaken through the pond.

Following the May 7th meeting, a BLESS representative requested contact information for the Alberta Environment agency or person that would be responsible for assessing whether the contaminated sediments would need to be removed or not. BLESS was told that several groups within Alberta Environment were involved and that we should request such information in this follow-up letter. BLESS is concerned that Alberta Environment may not have all historical information pertaining to the pond sediments, including prior correspondence sent to the proponent where Thurber Engineering recommended that the contaminated sediments be removed. We wish to discuss this matter with those at Alberta Environment who are responsible for making the decision on sediment removal.

Responsibility is easily abdicated in any large organization. For the public to have assurance that the appropriate decision has been made, it is critical that the decision-making process be open to scrutiny, and that individuals responsible for making decisions be identified and have access to all information, including concerns raised by the public. We hereby request that Alberta Environment provide the name of the specific group and individuals within that agency who will make the decision as to whether arsenic- and hydrocarbon- contaminated sediments must be removed from Riel Pond should this alignment be approved.

Given the persistence of substances identified in Riel Pond sediments as being deleterious to fish (and other life forms), and the uncertainty of whether they should be removed or allowed to remain in place, it would have been appropriate for regulatory agencies to insist that the proponent provide a monitoring and management plan for the contaminated sediments, similar to that provided for the leachate in the old landfill. That this was not done is seen as another serious deficiency of the screening process.

Leachate

Documents contained on the public registry unequivocally state that contaminated leachate from the old St. Albert dump has entered the Sturgeon River in the past. Alberta Environment and DFO have said additional internal correspondence exists in Alberta Environment files that would clarify the former determination that was made by a qualified Alberta Environment geologist. Alberta Environment has refused to release the correspondence in question without a formal request under the provincial Freedom of Information and Protection of Privacy Act, but has indicated it is from an Alberta Environment engineer who evaluated the 1997 EBA report and raised concerns about data transcription errors. The same engineer has also, voluntarily, submitted more-recent correspondence to DFO, which is in the public registry, in which he addresses the data transcription errors by stating “This does not, in my opinion invalidate the considered opinion of EBA about the potential risks of site disturbance.” In the more-recent letter the engineer goes on to say “There has therefore been highly consistent consensus for many years among provincial regulatory staff and the geotechnical consultants that it is necessary to exercise great caution about disturbing the Riel landfill site.” He concludes his cautionary letter regarding a road over the old dump by saying “The first rule, however, should be to risk no harm” [bolding ours].

Although the proponent has recently submitted plans for monitoring leachate, such plans provide nothing in the way of concrete proposals, in advance of construction, to prevent leachate from entering the river.

In his March 15, 2004 Agenda Report to St. Albert City Council which was meeting “in camera”, the City Engineer submitted a funding request for the new Landfill Leachate Monitoring Program. Administration recommended that the Agenda Report and the consultant’s landfill leachate report be withheld from the public, and City Council passed a motion after being presented with the reports that they remain confidential pursuant to the provincial Freedom of Information and Protection of Privacy Act. It was only after information was submitted in writing some days later by a member of the public, which drew attention to the overriding FOIP directive that matters concerning public health, safety and environment must not be withheld from the public, that the City eventually reversed its confidentiality decision and released the formerly confidential Agenda Report more than a month after the City Council had met “in camera” away from public scrutiny.

In the report, the City Engineer wrote that monitoring was necessary to establish a baseline for further assessment to determine if leachate was entering the river. He stated “until the baseline is determined, it is impossible to alleviate the concerns of Environment Canada that leachate is entering into fish habitats” [bolding ours]. The City Engineer in effect admitted to uncertainties with regards to the leachate when he wrote “Without actual knowledge as to what is happening, the City is unable to respond to the concerns expressed by Environment Canada” [bolding ours].

In the May 7th meeting with BLESS and ABC, DFO stated that the City’s monitoring program was outside the scope of the screening for the road. The road is sure to have an impact on the spread of leachate, if only because of the additional weight of overburden on top of the old dump. Implementation of remedial methods for containing or removing leachate will be seriously hampered, if not made impossible, by a road running over top of the area where the leachate is being generated. In fact, this precise point has been identified by Alberta Environment who has raised a concern that “pumping of wells may not be an appropriate remediation option” [bolding ours]. It is our position that leachate in the old dump must be dealt with in advance of construction to avoid serious environmental problems and probable infractions of the Fisheries Act now and in the future.

Process for Revisions to the Bridge Design

There is much confusion regarding recent changes that the proponent has made to the original bridge plans submitted to Navigable Waters. The amended plans do not provide a clear indication of the proposed changes. The latest plans submitted by the proponent’s consultant, April 21, 2004 (NWPA File: 8209-03-6745), which have been included in the public registry, are not the same as the plans being used by City Administration. It appears as if the proponent and its contractors are not communicating among themselves, and are not providing accurate details of proposed changes to the public or to regulatory agencies.

As can best be determined from the conflicting drawings, the proposed change involves putting another set of pilings in the river to expand the bridge capacity from the originally-proposed four lanes to six lanes. The EIA states (Vol. I, Page 2-5), that a six-lane roadway was not considered in the environmental assessment. The EIA specifically mentions that a six-lane roadway was not under design, was not foreseen as being required unless unprecedented growth occurred, was well outside of the 20 year recommended planning time frame to be used in environmental assessments pursuant to the CEAA, and was not identified to DFO as being part of the project.

To change the design criteria at this late date in the screening, without thoroughly addressing the proposed changes in the environmental impact assessment, indicates considerable disregard by the proponent for the environmental assessment process mandated by federal law. Such a major change could have additional deleterious effects on fish habitat, increase leachate risks and possibly impact other matters covered in the original EIA. The proposed bridge change should require that updates to the applicable sections of the EIA be issued. Nothing has been included in the public registry to date that would indicate regulatory agencies have required, or will require, the proponent to provide such updates. BLESS and ABC maintain any form of approval for this bridge design change in the absence of an updated environmental impact assessment is indication of a significant failure of the screening process.

Summation

BLESS and ABC believe that the myriad EIA deficiencies, the evident lack of consideration for alternatives, the contradictions discussed in this brief, the failure to meet even the minimum requirements for public participation, and the absence of certain key documents in the public registry all present grave uncertainties regarding this project.

We submit that it would be appropriate to conduct an expert panel review with full public input to address the outstanding and often conflicting issues.

We ask that the Minister of Fisheries and Oceans cause such a panel review to be carried out for the St. Albert West Regional Road (WRR) project and that the Responsible Authority take steps not to allow this roadway project to proceed until the panel review has been completed.

Respectively submitted,

Original signed by: R.A. Russell _____________________/19 May 2004 R. A. RusselL President, Big Lake Environment Support Society (BLESS)

original signed by: Elke Blodgett __________________/19 May 2004 Elke Blodgett Spokesperson, Anti-Bypass Coalition (ABC)

Attachments:

– Letter, Alberta Minister of Transportation, May 27, 2002
– Map, titled “Map #1 – Regional Access” (St. Albert, April, 2004)
– Letter, Canada Minister of the Environment, March 4, 2004

Notes:

Note 1.

In a memo dated November 10, 2003, Environment Canada, in providing advice to the Department of Fisheries and Oceans, made a questionable statement.

Mr. Fred Zaal, Environmental Assessment Coordinator “In any case, as per our last comments on the WRR EIA, we considered the proposed alignment superior to the alternative presented.”

During the May 7, 2004 meeting, BLESS challenged Mr. Zaal to provide a basis for that statement. We also challenged him to describe the “alternative” to which he referred. Mr. Zaal refused to comment, but a DFO official suggested that the statement may have been made in error. Mr. Zaal refused to withdraw his statement following a subsequent challenge.

BLESS submits that DFO failed to carry out its responsibility to clarify an unsubstantiated statement from another agency that it relied on for information on which DFO would base its decision.

Note 2.

Copies of the full review briefs (November, 2003) prepared respectively by BLESS and ABC of the proponent’s multi-volume EIA (October, 2003) can be read and/or downloaded at the following website:

Anti-Bypass Coalition (ABC): in PDF format (28 Mb).