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Bylaw No. 1465-2005

Streamside Protection Bylaw, 2005

Consolidated and printed by authority of the Corporate Officer under section 139 of the Community Charter. Includes amendment bylaws 2579-2016 and 2720-2017 . Last amended July 31, 2017

Contents
 1 Citation
 2 Interpretation
 3 General exemptions
 4 Width of Streamside Protection and Enhancement Areas for Streams
 5 Width of Streamside Protection and Enhancement Areas for Ditches
 6 General regulations
 7 Assessment and senior government approvals
 8 Inspection & enforcement
 9 Offence and penalties
Schedule "A"

The purpose of this Bylaw is to protect streams within the City that support fish habitat from harmful conditions associated with commercial, industrial, and residential development, and to preserve, protect, restore and enhance the natural environment near streams that support fish habitat.

City of Abbotsford Council, in open meeting assembled, ENACTS AS FOLLOWS:

Citation

1   Bylaw No. 1465-2005 may be cited as "Streamside Protection Bylaw, 2005".

Interpretation

2   (a) Schedule "A" contains definitions of terms used in this Bylaw.

(b) Unless otherwise provided in this Bylaw, words and phrases used herein have the same meanings as in the Community Charter, SBC 2003, Local Government Act, RSBC 2015, and Interpretation Act, RSBC 1996, or as the context and circumstances may require.

(c) A reference to a statute refers to a statute of the Province of British Columbia, and a reference to any statute, regulation or bylaw refers to that enactment, as amended or replaced from time to time.

(d) Words in the singular include the plural and gender specific terms include both genders and corporations.

(e) Headings in this Bylaw are for convenience only and must not be construed as defining, or in any way limiting the scope or intent of this Bylaw.

(f) If any part of this Bylaw is held to be invalid by a court of competent jurisdiction, the invalid part is severed and the remainder continues to be valid.

B/L 2720-2017

General exemptions

3   (a) Ecological restoration of a Streamside Protection and Enhancement Area according to a restoration plan that has been prepared to a professional standard and approved by the General Manager.

(b) Emergency actions required to prevent, control or reduce an immediate unacceptable threat to human life, the natural environment, or public or private property.

(c) Public works and services undertaken by, or on behalf of, the City or Regional District, provided that the activity complies with all Provincial and Federal standards and requirements.

(d) Use of private roads, parking areas, landscaping, or outdoor commercial or industrial storage that existed prior to the adoption of the City's Streamside Protection Bylaw, 2005.

(e) Renovation of Permanent Structures that existed prior to the adoption of the City's Streamside Protection Bylaw, 2005.

B/L 2720-2017

Width of Streamside Protection and Enhancement Areas for Streams

4   (a) Streamside Protection and Enhancement Areas are those areas determined with reference to the following Existing Vegetation or Potential Vegetation conditions by measuring perpendicularly away from the Top of the Bank or Top of the Ravine Bank on either side of a Stream:

(i) intact and continuous areas of Existing Vegetation or Potential Vegetation equal to or greater than 50 metres wide;

(ii) limited but continuous areas of Existing Vegetation or Potential Vegetation equal to 30 metres wide or discontinuous but occasionally wider areas of Existing Vegetation or Potential Vegetation between 30 and 50 metres wide;

(iii) narrow but continuous areas of Existing Vegetation or Potential Vegetation equal to 15 metres wide or discontinuous but occasionally wider areas of Existing Vegetation or Potential Vegetation between 15 and 30 metres wide; or

(iv) very narrow but continuous areas of Existing Vegetation or Potential Vegetation up to five (5) metres wide or discontinuous but occasionally wider areas of Existing Vegetation or Potential Vegetation between five (5) and 15 metres wide interspersed with Permanent Structures.

(b) With reference to vegetation conditions in Subsection (a), Streamside Protection and Enhancement Areas are:

(i) if Subsection (a) (i) or  (ii) applies, at least 30 metres wide measured perpendicularly away from the Top of the Bank for all Fish Bearing Streams or for Non Fish Bearing Streams that are Permanent Streams;

(ii) if Subsection (a) (i),  (ii) or  (iii) applies, at least 15 metres wide measured perpendicularly away from the Top of the Bank for Non Fish Bearing Streams that are Non-permanent Streams;

(iii) if Subsection (a) (iii) applies, at least 15 metres wide measured perpendicularly away from the Top of the Bank for Non Fish Bearing Streams that are Permanent Streams;

(iv) if Subsection (a) (iii) or  (iv) applies, the greater of the widths determined under Subsection (a) (iii) or  (iv) or at least 15 metres wide measured perpendicularly away from the Top of the Bank for all Fish Bearing Streams; or

(v) if Subsection (a) (iv) applies, at least five (5) and up to 15 metres wide measured perpendicularly away from the Top of the Bank for all Non Fish Bearing Streams.

(c) If a Stream is in a Ravine that is less than 60 metres wide in total width from Top of the Ravine Bank to Top of the Ravine Bank, not including the Stream channel within its active Floodplain boundaries, protection is to be consistent with Subsection (b) (i) through  (v) , where appropriate, from the Top of the Ravine Bank.

(d) If a Stream is in a Ravine that is more than 60 metres in total width from Top of the Ravine Bank to Top of the Ravine Bank, not including the Stream channel within its Active Floodplain boundaries, a Streamside Protection and Enhancement Area will be at least ten (10) metres wide measured perpendicularly away from the Top of the Ravine Bank.

B/L 2720-2017

Width of Streamside Protection and Enhancement Areas for Ditches

5   Where a Stream is characterized as a Ditch under the Assessment Methods, the Streamside Protection and Enhancement Areas must be in accordance with the Assessment Methods.

B/L 2720-2017

General regulations

6   Development is prohibited in a Streamside Protection and Enhancement Area, except as approved through:

(a) a development permit or development variance permit that would permit the reconstruction or repair of a Permanent Structure described in the Local Government Act if the structure remains on its existing foundation;

(b) a development permit that would permit Development associated with a Notification in accordance with the Water Sustainability Regulation;

(c) a development permit that would permit temporary impacts to the Streamside Protection and Enhancement Area;

(d) a development permit that would permit Streamside Protection and Enhancement Area width averaging, provided there is no loss in the total size of the Streamside Protection and Enhancement Area, the minimum distance from top of bank may be reduced by no more than five (5) meters and increased by no more than ten (10) meters; or

(e) a development variance permit that would permit Development within the Streamside Protection and Enhancement Area as identified in Section 4 .

B/L 2720-2017

Assessment and senior government approvals

7   In respect of Proposed Development related wholly or partially to Streamside Protection and Enhancement Areas, the City may approve or allow Development to proceed in those areas if all applicable conditions are met:

(a) a Qualified Professional carries out an assessment and certifies in the Assessment Report for that Proposed Development that he or she is qualified to carry out the assessment; that the Assessment Methods were followed, and provides that, in his professional opinion:

(i) if the Development is implemented as proposed there will be no Serious Harm to Fish or harmful alteration, disruption or destruction of Natural Features, functions and conditions that support Fish life processes in the Streamside Protection and Enhancement Area; or

(ii) if the Streamside Protection and Enhancement Areas identified in the report are protected from the Development and the measures identified in the report are necessary to protect the integrity of those areas from the effects of the Development are implemented by the developer, there will be no Serious Harm to Fish or harmful alteration, disruption or destruction of Natural Features, Functions and Conditions that support Fish life processes in the Streamside Protection and Enhancement Area;

(b) the City receives notice from the Ministry that the Ministry was notified of the Proposed Development; and is provided with a copy of the Assessment Report described in Subsection (a);

(c) the City receives a copy of a Change Approval or Water Licence, in accordance with the Water Sustainability Act, SBC 2014, from the Ministry;

(d) the City receives a copy of Notification submission in accordance with the Water Sustainability Regulation and subsequent related correspondence with the Ministry and the Qualified Professional;

(e) the City receives a copy of correspondence from Fisheries and Oceans Canada that states that Serious Harm to Fish is unlikely to occur from the project; or

(f) the City receives a copy of an Authorization from Fisheries and Oceans Canada.

B/L 2720-2017

Inspection & enforcement

8   (a) A Bylaw Enforcement Officer or other City employee as designated by the City Manager, is authorized at all reasonable times to enter on any property to inspect and determine whether the provisions of this Bylaw or any terms, conditions, restrictions and requirements of a Permit are being observed.

(b) A person must not prevent or obstruct any of those persons identified in Subsection (a) from entering onto the property for the purposes of this Bylaw.

(c) The City may issue a notice to comply to any person of a breach of, or non-compliance with, any provisions of this Bylaw or a permit issued thereto and such person must immediately cease activity or work related to Development within a Streamside Protection and Enhancement Area and must not engage in or allow further activity or work to proceed within the area without express, written authorization by the City.

(d) Service of a notice to comply is sufficient if a copy of the notice to comply is served personally on, or mailed by prepaid registered mail, to the address of:

(i) the property owner, as set forth in the assessment roll for the City; and

(ii) where a Permit was issued, the holder of the Permit;

and such notice is deemed served on the same day if served personally, or on the third business day after mailing.

(e) If the property owner fails to comply with a notice to comply, the City may utilize all or part of any security deposit provided to the City in conjunction with the issuance of any Permits and, either by itself or through its agents or contractors, enter upon the Development site together with all necessary workers, equipment and vehicles and take whatever works or action the City considers necessary to carry out any restoration works within the Streamside Protection and Enhancement Area. If no Permit was issued or if the amount of the security deposit is insufficient for such purposes, the property owner must forthwith pay any deficiency to the City immediately upon receipt of the City's invoice for the work, failing which, the amount of such costs may be added to the property taxes for the subject property and collected in the same manner and with the same remedies as property taxes.

(f) In addition to Subsection (c) , a person who contravenes Section 6 of this Bylaw must remedy the contravention; and, if required, rehabilitate the affected area in accordance with a direction from any of the following:

(i) Fisheries and Oceans Canada;

(ii) the Ministry; or

(iii) the City.

B/L 2579-2016, 2720-2017

Offence and penalties

9   Notwithstanding the offence and penalties as provided under the Community Charter or Local Government Act, the following will apply:

(a) a violation of any of the provisions identified in this Bylaw will result in liability for penalties and late payment amounts established in the City's Bylaw Notice Enforcement Bylaw, 2007, and Municipal Ticket Information Bylaw, 2007;

(b) a violation of any of the provisions identified in this Bylaw will be subject to the procedures, restrictions, limits, obligations and rights established in the Bylaw Notice Enforcement Bylaw, 2007, in accordance with the Local Government Bylaw Notice Enforcement Act, SBC 2003, c. 60;

(c) a person who:

(i) contravenes, violates or fails to comply with any provision of this Bylaw;

(ii) suffers or allows any Act or thing to be done in contravention or violation of this Bylaw; or

(iii) fails or neglects to do anything required to be done under this Bylaw,

is deemed to have committed an infraction of, or an offence against this Bylaw; and is liable on summary conviction to a fine of not more than Ten Thousand Dollars ($10,000.00); and

(d) each day such infraction is caused, or allowed to continue, constitutes a separate offence.

B/L 2579-2016, 2720-2017

READ A FIRST TIME on June 13, 2005 READ A SECOND TIME on June 13, 2005 READ A THIRD TIME on June 13, 2005 ADOPTED on June 20, 2005

Schedule "A"

Definitions

In this Bylaw:

"Active Floodplain" means an area of land that supports floodplain plant species and is:

(a) adjacent to a Stream that may be subject to temporary, frequent or seasonal inundation, or

(b) within a boundary that is indicated by the visible High Water Mark.

"Qualified Professional" means an applied scientist or technologist who practices in a relevant applied science or technology field including, without limitation, the field of agrology, forestry, biology, engineering, geomorphology, geology, hydrology, hydrogeology or landscape architecture, whether acting alone or together with another qualified professional, if:

(a) the individual is registered and in good standing in British Columbia with an appropriate professional organization constituted under an Act, acting under that association's code of ethics and subject to disciplinary action by that association;

(b) the individual's area of expertise is recognized in the Assessment Methods as one that is acceptable for the purpose of providing all or part of an Assessment Report in respect of that Proposed Development; and

(c) the individual is Acting within that individual's area of expertise.

"Assessment Methods" mean the methods set out in the Schedule to the Riparian Area Regulation.

"Assessment Report" means a report prepared in accordance with the Assessment Methods of the Riparian Area Regulation to assess the potential impact of a Proposed Development in a Streamside Protection and Enhancement Area, and which is certified for the purposes of the Riparian Area Regulation by a Qualified Professional, and which report shall include, without limitation.

(a) a statement of qualification by the Qualified Professional;

(b) a description of the Proposed Development including a proposed work schedule and all works related to site preparation, construction, post construction monitoring or maintenance, and decommissioning;

(c) a description of existing Fish and Fish Habitat of any Stream within the Proposed Development, including electronic copies of the fish collection permit reports if sampling conducted;

(d) a determination of the Streamside Protection and Enhancement Area in accordance with Sections 4 or  5 and in accordance with the Assessment Methods;

(e) details of any potential loss of Streamside Protection and Enhancement Area from the Proposed Development and a plan for compensation;

(f) a tabular summary of the relevant Streamside Protection and Enhancement Area per Sections 4 and 5 and the Assessment Methods, and the proposed Streamside Protection and Enhancement Area, variance area, and compensation area;

(g) a description of permanent Streamside Protection and Enhancement Area protection measures, such as fencing, signage, covenant or dedication and relevant measures to protect the Streamside Protection and Enhancement Area based on the Assessment Methods;

(h) mitigation measures to minimize the potential for Serious Harm to Fish or harmful alteration, disruption or destruction of Natural Features, Functions and Conditions that support Fish life processes;

(i) recommendation for a minimum buffer from the Streamside Protection and Enhancement Area to the Proposed Development, including but not limited to the following considerations: impacts of construction activities, tree protection measures, tree establishment, formal yard area, access for building maintenance;

(j) recommendation as to how activities related to the Proposed Development will be monitored, including identification of a class of Qualified Professionals for monitoring those activities;

(k) an estimate of the cost of environmental securities for mitigation and compensation works, items to include but not be limited to invasive plant removal, planting, monitoring, fencing;

(l) site photographs;

(m) a survey drawing of the Proposed Development Area indicating the High Water Mark and Top of the Bank or Top of the Ravine Bank of any Stream within that area and delineating the relevant Streamside Protection and Enhancement Area per Sections 4 and 5 and the Assessment Methods, along with any proposed variance area and compensation area;

(n) recommendation as to whether or not the Proposed Development should proceed based on the assessment results; and

(o) recommendation as to whether or not a further assessment is required.

"Authorization" means a written approval in accordance with the Fisheries Act, RSBC 1996, in relation to a proposed work, undertaking or activity that may result in Serious Harm to Fish.

"Change Approval" has the same meaning as defined in the Water Sustainability Act, SBC 2014.

"City" means the City of Abbotsford.

"Development" has the same meaning as defined in the Riparian Area Regulation.

"Development Area" means the land on which a Proposed Development is to occur.

"Ditch" means Streams that are typically characterized as being manmade and straight with no significant headwaters or springs. Ditches can be wet or dry. They were constructed to drain property and roadways or impound water for irrigation, and they often form property boundaries. While connected to natural Streams, ditches are not part of the natural historic drainage pattern.

"Existing Vegetation" means native and non-native vegetation.

"Fish" means all life stages of salmonids, game fish, and regionally significant fish, including fish that are part of or support a commercial, recreational or aboriginal fishery.

"Fish Bearing Stream" means a Stream in which Fish are present or potentially present if introduced barriers or obstructions are either removed or made passable for Fish.

"Fish Habitat" means spawning grounds and nursery, rearing, food supply and migration areas on which Fish depend directly or indirectly in order to carry out their life processes.

"General Manager" means the City's General Manager, Planning and Development Services, or designate.

"High Water Mark" means the visible High Water Mark of a Stream where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark on the soil of the bed of the Stream a character distinct from that of its banks, in vegetation, as well as in the nature of the soil itself, and includes the active Floodplain.

"Ministry" means the Ministry of Forests, Lands, or Natural Resource Operations of the Province of British Columbia.

"Natural Features, Functions and Conditions" include, but are not limited to, the following natural features, functions and conditions:

(a) large organic debris that falls into the Stream or Streamside Protection and Enhancement Area, including logs, snags and root wads;

(b) areas for channel migration, including active Floodplains;

(c) side channels, intermittent Streams, seasonally wetted contiguous areas and floodplains;

(d) the multi-canopied forest and ground cover adjacent to Streams that:

(i) moderates water temperatures;

(ii) provides a source of food, nutrients and organic matter to Streams;

(iii) establishes root matrices that stabilize soils and Streambanks, thereby, minimizing erosion; and

(iv) buffers Streams from sedimentation and pollution in surface runoff;

(e) a natural source of Stream bed substrates; and

(f) permeable surfaces that permit infiltration to moderate water volume, timing and velocity and maintain sustained water flows in Streams, especially during low flow periods.

"Non Fish Bearing Stream" means a Stream that:

(a) is not inhabited by Fish;

(b) contains natural barriers or impassible conditions for Fish; and

(c) provides water, food and nutrients to a downstream Fish Bearing Stream or other water body.

"Non-Permanent Stream" means a Stream that typically contains surface waters or flows for periods less than six (6) months in duration.

"Notification" means a written communication to the Ministry of proposed works as specified in the Water Sustainability Regulation.

"Permanent Stream" means a Stream that typically contains continuous surface waters or flows for a period more than six (6) months in duration.

"Permanent Structure" means any building or structure that was lawfully constructed, placed or erected on a secure and long lasting foundation on land in accordance with any of the City's bylaws or approval conditions in effect at the time of construction, placement or erection.

"Permit" includes any of the following:

(a) a development permit;

(b) a development variance permit;

(c) a building permit issued under the City's Building Bylaw, 2016; or

(d) a soil removal and deposit permit issued under the City's Soil Removal and Deposit Bylaw, 2003.

"Potential Vegetation" is considered to exist if there is a reasonable ability for regeneration either with assistance through enhancement or naturally, and is considered to not exist on that part of an area covered by a Permanent Structure.

"Proposed Development" means any Development that is proposed in a Streamside Protection and Enhancement Area that is within, or partly within, the boundaries of the City.

"Ravine" means a narrow, steep-sided valley that is commonly eroded by running water and has a slope grade greater than 3H:1V.

"Regional District" means the Fraser Valley Regional District or Metro Vancouver Reginal District.

"Riparian Area" means the area adjacent to a Stream that may be subject to temporary, frequent or seasonal inundation, and supports plant species that are typical of an area of inundated or saturated soil conditions, and that are distinct from plant species on freely drained adjacent upland sites because of the presence of water.

"Riparian Area Regulation" means a regulation made pursuant to the Riparian Areas Protection Act, SBC 1997.

"Serious Harm to Fish" has the same meaning as defined in the Fisheries Act, RSBC 1996.

"Stream" includes a watercourse or source of water supply, whether usually containing water or not, a pond, lake, river, creek, brook, ditch, spring or Wetland that is integral to a Stream and provides Fish Habitat.

"Streamside Protection and Enhancement Area" means an area adjacent to a Stream that links aquatic to terrestrial ecosystems and includes both existing and potential riparian vegetation and existing and potential adjacent upland vegetation that exerts an influence on the Stream, the width of which is determined according to Sections 4 and 5 of this Bylaw.

"Top of the Bank" means:

(a) the point closest to the boundary of the active Floodplain of a Stream where a break in the slope of the land occurs such that the grade beyond the break is flatter than 3H:1V at any point for a minimum distance of 15 metres measured perpendicularly from the break; and

(b) for a floodplain area not contained in a Ravine, the edge of the Active Floodplain of a Stream where the slope of the land beyond the edge is flatter than 3H:1V at any point for a minimum distance of 15 metres measured perpendicularly from the edge.

"Top of the Ravine Bank" means the first significant break in a Ravine slope where the break occurs such that the grade beyond the break is flatter than 3H:1V for a minimum distance of 15 meters measured perpendicularly from the break, and the break does not include a bench within the Ravine that could be developed.

"Water Licence" means a licence issued in accordance with the Water Sustainability Act, SBC 2014.

"Water Sustainability Regulation" means a regulation made pursuant to the Water Sustainability Act, SBC 2014.

"Wetland" means land that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal conditions does support vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs, fens, estuaries and similar areas that are not part of the Active Floodplain of a Stream.