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US Firm Charged with Illegally Dumping Tons of Rock into Delta Salmon Stream

BNSF railway company faces trial in August over alleged violations of Fisheries Act.

By Stanley Tromp 9 Jul 2012 | TheTyee.ca

Stanley Tromp is a Vancouver-based reporter. Find his other Tyee articles here.

In November 2010, an American railway company allegedly dumped tons of rock into an 82-metre stretch of Cougar Creek -- a salmon bearing stream in Delta -- and damaged the fish habitat.

This was according to a search warrant sworn by federal fisheries officer Trevor Tomlin on Feb. 29, 2012. Officers also wrote that BNSF had received complaints in the past of it removing rock and gravel from Cougar Creek without the approval of the Department of Fisheries and Oceans (DFO), and it had been notified that doing such work without approval violated the Fisheries Act.

The allegations against the Burlington Northern and Santa Fe (BNSF) railway company have yet to be proven. Charges were laid under the Fisheries Act, the parties made their first brief appearance in Surrey provincial court on June 29 this year, and the case is set to be heard there on August 13.

Officials at DFO and at BNSF railway's New Westminster headquarters told The Tyee that they cannot make any comment because the case is now before the courts.

Cougar Creek is a long narrow stream that rises in Surrey, flows through North Delta and empties into the Fraser River. The rock spill happened south of the intersection of North Delta's Westview Drive and 72nd Avenue, where the rail tracks run parallel to the stream. A sign nearby says "Salmon Habitat -- Please Protect our Heritage."

"Many Lower Mainland salmon streams have been lost to urban development -- piped, buried, polluted beyond saving," according to the Cougar Creek Streamkeepers, a volunteer conservationist group. "Cougar Creek is one of the exceptions, a beautiful stream that still manages to support both wild and hatchery salmon, as well as cutthroat trout, stickleback, lamprey, crayfish and sculpin. This creek could become a showpiece for the integration of healthy fish populations in an urban/suburban fabric."

In his affidavit, Tomlin wrote that BNSF "did unlawfully carry on a work or undertaking, to wit: creek bank armouring, that resulted in the harmful alteration, disruption or destruction of fish habitat, to wit: Cougar Creek, in violation of section 35(1) of the Fisheries Act, and did thereby commit an offense contrary to section 40(1) of the Fisheries Act."

In the Act, Sec. 40(1) states that anyone convicted of violating Sec. 35(1), on a summary conviction for a first offense, can be fined up to $300,000, with six months in prison for a subsequent offense. If the offense is indictable, for a first offense one can be fined up to $1 million, with three years in prison for a subsequent offense.

'Activity of BNSF was alarming'

The probe began on Nov. 2, 2010, when Delta civic environmental officers Angela Danyluk and Erin Riddell went to Cougar Creek at 3 p.m. "to investigate alleged excavation works along the rail bed and in the creek."

"When we got there we saw obvious signs of excavation in the creek, along the rail bed," Danyluk wrote later in an email to Brian Naito, a longtime DFO fish habitat biologist (an email which was copied for the search warrant file). "We observed BNSF staff armouring the rail bed with 24" minus rip rap without any erosion sediment control or isolation...

"The rip rap was not clean and the activity of BNSF was alarming. Staff were simply tipping the rail cart and dumping the rock onto the rail bed and into the creek. Rocks and dirt were tumbling off the rail bed and into the creek. I do not believe any of these works were conducted properly from a fisheries and habitat point of view."

Riprap means rock or other material used to armor shorelines, streambeds, pilings and other shoreline structures against scour, water or ice erosion. Riprap is applied because railways want firm level ground under their tracks.

The email continues: "It looks like they are armouring from the lock blocks at Westview to 100 feet downstream along the creek. The creek was silty as a result of the works and narrowed due to rock placement... our concerns are:

- While the works are likely necessary, no consultation with DFO or Delta was made. This is an issue.

- The timing of the works is wrong and likely caused a HADD [Habitat Alteration, Disruption or Destruction].

- There was no isolation, erosion sediment control, likely no electro-fishing or care with placing the rip rap.

- The placement of the rip rap may move the stream eastward, undercut the bank, and affect Delta's property (e.g., trees, habitat, recreation access).

"Although the Railway Act may grant BNSF powers greater than the Fisheries Act, this disregard for habitat, salmonids and Delta's property is unacceptable. Is DFO able to contact BNSF and discuss what happened? Can we improve communication between the three agencies to prevent such incidents? Is it within BNSF's power and budget to conduct works in a manner more acceptable to DFO and Delta?"

Aim was to prevent erosion: BNSF

On Nov. 8, the two DFO officers Tomlin and Naito visited Cougar Creek. Besides noting small fish there, they also saw that the creek near the rail-lines "was in-filled with rock, the width of the creek had narrowed, and that vegetation on the creek bank which also supports the railway track at that location had been either removed or covered with rock."

Naito told Tomlin that he had previously seen juvenile Coho salmon in the creek waters upstream from where the rocks had been dumped. As well, "BNSF has had dealings with the DFO in the past regarding complaints of it removing rock and gravel from Cougar Creek without the approval of the DFO. Mr. Naito further informed me that BNSF was notified that such work without approval was a violation of the Fisheries Act."

Then on Dec. 17, Tomlin met with Grant Nightingale, the engineering supervisor for BNSF, who confirmed that BNSF had done the work at the site.

Nightingale "informed me that... he was concerned about bank erosion next to the rail line, that not doing the work there would be a good possibility the track would wash out and the track structure would be compromised, and that Cougar Creek had been narrowed as a result of the dumping of the rocks, and that there had been grasses on the bank of Cougar Creek before the dumping occurred."

A week later, Tomlin met with Rick Cameron, a BNSF foreman. Cameron said "that flooding and erosion was a problem, Transport Canada was worried about 'erosion of the whole side of the bank' and had given 'instructions to fix it,' that he was aware that Cougar Creek is sensitive fish habitat, that before the work started the bank of Cougar Creek along the railway tracks was composed of dirt and grasses, but after the work the bank's vegetation had been removed, the bank was excavated to 'allow the rock to roll in,' that some rocks had rolled into the banks of the creek, and that 'about 35 per cent more' matter was added to the bank than removed.'"

From his research, Naito wrote a report on the case called "Cougar Creek near Rail Tracks and Westview Drive, Delta," on Feb. 28, 2011.

He noted that Cougar Creek is known to support species including coho salmon, chum salmon and cutthroat trout. Every fall, the creek is an upstream migration route, and its gravel provides spawning grounds for adult salmon. Eggs incubate in the creek gravel voids during the winter, juvenile salmon hatch and emerge from these voids the next spring, and the creek serves as a feeding area and downstream migration route.

Naito concluded that the work by Burlington Northern caused the "harmful alteration, disruption or destruction of fish or fish habitat," because:

- The placement of angular rock on the creek sediments resulted in a loss of juvenile salmon food supply area by covering creek sediments where benthic invertebrates exist, which are a food source for juvenile salmon.

- The placement of angular rock on creek gravel has also resulted in the loss of salmon spawning grounds in the creek.

- The elimination of riparian grass on the creek bank resulted in a loss of juvenile salmon food supply area by covering creek sediments where benthic invertebrates exist.

BNSF's revenues were nearly $20 billion last year, according to the company's website.

The Tyee will have more news on this case later.  [Tyee]

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