While the Nova Scotia government doubles down on there being ‘no changes to the Wetland Conservation Policy,’ the truth is, the policy is being violated with a new interpretation.
According to documents accessed through Freedom of Information (FOI), there is now a “new interpretation” of the Wetland Conservation Policy, which not only violates the original Policy, but has functionally delisted potentially thousands of hectares of Wetlands of Special Significance (WSS) in the province.
Marsh Lake, known as ‘a wetland jewel’ located in Halifax Regional Municipality is part of the Sandy Lake Watershed. Photo: Treasured Wetlands of Nova Scotia FB page.
Internal emails from the Department of Environment and Climate Change (NSECC) reveal that starting in August of 2023, “discussions” were taking place “about the interpretation of the wetland policy.” On August 16, Lori Skaine, the Western Regional Director for Inspection, Compliance and Enforcement (ICE) sent an email to the ICE “Leadership Team,” copied to Andrew Murphy, the department’s Executive Director, with subject “Wetlands of special significance.”
It reads in part:
The department is currently having discussions about interpretation of the wetland policy and as part of those discussions we have been asked to change an aspect of our process. Going forward, when the application is received and prior to any decision being made to deny a wetland alteration based on it being a wetland of special significance, we are requesting this decision be elevated to Executive Directors (Adrian or whoever is acting on his behalf) for further discussion. Please action immediately, and work out whatever additional procedures are needed to support this direction.
Then, about three weeks later, on September 7th, the department’s Director of Water Programs, Elizabeth Kennedy sends an email to the two Wetland and Water Resources Specialists, John Gallop and Marina Dulmage, copied to Krysta Montreuil, with subject “wetlands options – implementation” importance: High.”
It reads:
A message will be coming from senior leadership next week with direction for staff for new interpretations of the wetland conservation policy. We are requested to identify the place where this direction will be incorporated into our guidance/ forms etc. for clear implementation. A summary of these are the new interpretations and direction are below.
Kennedy further informs the team that they will be working with ICE. What follows in her email is exactly what appears in the official email sent about two weeks later, on September 21st, by Andrew Murphy to John Gallop, Marina Dulmage, Elizabeth Kennedy, and Krysta Montreuil, with subject “Wetland” and Importance “high”.
Here are screen shots of the email from Murphy, laying out the “new interpretation” of what qualifies as a Wetland of Special Significance. As we shall see, not only is the approach a new one, it is in complete violation of the official policy.
On the same day that Murphy’s email was sent, Adrian Fuller, the Executive Director of ICE, sent the exact same email to more than 60 recipients including the “Ice Leadership Team,” and signed his own name to it.
This email with the new interpretation, “effective immediately,” is what was leaked to a non-profit organization and then to the CBC, and reported by The Quaking Swamp Journal here and here.
When the CBC story, based on the leaked email first broke, the official government response was that the internal discussion was a “routine clarification” of the wetland policy. This has been the official stance taken by the department’s director of communications, Elizabeth MacDonald in numerous email exchanges with The Quaking Swamp Journal.
But the Freedom of Information package reveals it is anything but a clarification. The internal emails show department staff characterize the shift as a “new interpretation,” or “new direction,” or as “changes to the interpretation of the policy.”
For instance, on October 6, Krysta Montreuil, the Manager of Water Resources Management sends an email to Lynda Weatherby, the Business Relationship Manager at Regional Integration of Compliance and Operations about “Wetland clarification and compensation.” In the email Montreuil states: “Based on the recent changes to the interpretation of the policy (Andrew Murphy’s email), blue felt lichen is listed as a ‘vulnerable’ species by ESA and ‘special concern’ under SARA. While it is no longer considered a WSS trigger, it may still be considered for larger compensation.”
By October 3—after the news of the changes broke in the media--questions started coming in from the public about the changes to the wetland interpretation. In response, Elizabeth Kennedy tells the “team,” to direct any questions about wetlands to Jason Hollett, the department’s Associate Deputy Minister.1
The department heard from non-profit organizations including the Mersey Tobeatic Research Institute. An ecologist there (name redacted) asked Gallop and Dulmage, “We have just become aware of the Wetland Conservation Policy “clarifications” and we would like to schedule a meeting to discuss them to get a better understanding of the situation.”
The department also heard from someone who “has consulted with the provincial government on the Wetlands of Special Significance.”
“I am appalled,” the person writes.
Consulting firms were also wondering what was going on. Dulmage heard from Sarah Scarlett from McCallum Environmental and then emailed Elizabeth Kennedy, saying Scarlett left a voice mail wondering “how they should be interpreting the information” about Wetlands of Special Significance and “necessary public function” as “the changes make a significant change to their business.” A large section of that email is redacted.
In another email dated October 5, with reference to the “West Lake Estates” development proposed in Mt. Uniacke: “I had a Teams meeting with Meghan Milloy from McCallum this morning…McCallum is the consultant who completed many Wetland Applications is looking for new guidance on the wetland alteration program from NSECC so that they are correctly advising their clients with the recent changes to the Wetland Conservation Policy.”
In an October 10 email from Wetland Specialist John Gallop to Sean Gillis, copied to three others, about the Goldboro Gold Project Wetland application, Gallop writes:
“It is true that Blue Felt Lichen does not trigger a WSS as per the new interpretation shown in the email you attached, however, I think Marina [Dulmage] and I are leaning towards keeping the ratios the same as these blue felt lichen wetlands are mature forested swamps and support rare species. Based on the function of these wetlands and the challenge to replace these systems (forested swamps take a long time to form) we feel that a higher ratio to compensate for the loss of these wetlands is warranted. NSECC has always had the capability to increase ratios based on wetland function/ characteristics and is specified in our guidance.”
You get the picture. These were not clarifications to the policy, they were changes.
Blue Felt Lichen, a vulnerable species in Nova Scotia, will no longer trigger a WSS based on the new interpretation of the Wetland Conservation Policy. Photo: Linda Pannozzo
Did Minister Tim Halman intentionally mislead the public with manipulative wordplay?
In the Nova Scotia Legislature last November, NDP Member of Parliament Lisa Lachance for Halifax Citadel-Sable Island had an exchange with Conservative Environment Minister Timothy Halman about the changes the government made “that would make it easier for developers to build on fragile wetlands.”
What Lachance was referring to are the changes the government made to the way that the Wetland Conservation Policy is now interpreted.
Once these changes were revealed—a result of the leaked email above—nine environmental groups, including the Ecology Action Centre, East Coast Environmental Law, Nature Nova Scotia, and the Atlantic Salmon Federation released a joint statement denouncing the downgrading of the province’s Wetland Conservation Policy, which I also reported on here.
Lachance asked the Minister:
“Nova Scotians were shocked to discover that the government had quietly made changes that would make it easier for developers to build on fragile wetlands. We've heard concerns that these changes place too much control and discretion in the hands of the minister and developers, something which is becoming a pattern of this government. Why is this government so willing to sacrifice our environment for the sake of private profits?”
Halman’s response is misleading to say the least:
“I reject the premise of that question. This is a government that highly values the protection and conservation of land. Despite what the Opposition has heard, there have been absolutely no changes to the Nova Scotia Wetland Conservation Policy - not a single change to a sentence and not a single change to a paragraph. I'm happy to table that wetland policy.”
In an email exchange I had with Elizabeth MacDonald, NSECC director of communications, which I posted here, MacDonald goes one step further.
“The policy has absolutely not changed and neither has the interpretation of it. That is factual,” MacDonald says.
Let me be crystal clear: while the actual language that exists in the Wetland Conservation Policy, located online, has not been changed, there is new wording in the new interpretation of the section dealing with Wetlands of Special Significance. Lachance did not ask Halman about the wording in the Policy itself—which could not have been changed without the public’s knowledge as it’s an official document—she pointed out the underhanded way in which the government “quietly made changes.”
The Policy is being contradicted with the new approach, so even though the Policy itself hasn’t changed, the direction now being taken essentially violates the Policy.
The new interpretation violates the Policy. Here’s how
1. Wetland of Special Significance determination will now only apply to wetlands known to support endangered and threatened species, and now excludes species that have been designated as vulnerable under the provincial Endangered Species Act, or special concern under the federal Species at Risk Act.
The Policy currently defines Wetlands of Special Significance as those “wetlands known to support at-risk species as designated under the federal Species at Risk Act or the Nova Scotia Endangered Species Act.” The FOI documents reveal that the definition of species at risk was edited (see image below) for the purposes of the internal clarification and now only considers endangered and threatened species (in bold) and excludes species that are vulnerable / special concern (“at risk species” deleted). Problem is, species that have been designated vulnerable, are vulnerable for a reason—they have characteristics that make them particularly sensitive to human activities or natural events. If they are no longer considered worthy of protection, their risk factor is likely to increase.
2. Wetlands of Special Significance only includes that portion of the wetland that exists inside the boundary of a designated/ protected area.
The new interpretation contradicts/ conflicts with the wording that currently exists in the Policy itself, which states wetlands of special significance include “wetlands that are within or partially within a designated Ramsar site, Provincial Wildlife Management Area, Provincial Park, Nature Reserve, Wilderness Area, or lands owned or legally protected by non-governmental charitable conservation land trusts.”
According to the “new interpretation” only the part of the wetland that overlaps (or exists within) these designated areas is protected. Any part of that wetland that exists outside the boundary is no longer considered WSS. This amounts to a functional delisting of thousands of hectares of WSS.
I’ve spoken to somebody very close to this file, who asked not to be identified, but who agrees that potentially thousands of hectares of wetlands have now been functionally delisted.
“There is, potentially, when you start talking about wilderness areas, nature reserves, provincial parks, wildlife management areas, sites under the Nova Scotia Eastern Habitat Joint Venture (EHJV) or the North American Waterfowl Management Plan. There are thousands of hectares of land that have been acquired under the NS EHJV that are not recognized as wilderness areas or otherwise protected areas, but they are included within Wetlands of Special Significance. They are at risk now.”
The FOI documents show how the Wetland Conservation Policy has been edited/ changed, for the purposes of this new interpretation. Both substantive changes violate the Policy. This screen shot was taken of edits made to what is considered a WSS. The column heading was titled: “proposed changes.” [Apologies for the blur, but this was very tiny print that had to be zoomed into first']
Shift away from relying on historical databases and publicly funded scientific knowledge
The other very disturbing shift indicated by the new interpretation of the policy is the stated move away from relying on the expertise of government scientists and databases of historic occurrences of species at risk when making assessments about wetlands. According to the new interpretation, WSS are designated based on the proponent’s field work and “databases of historic occurrences of species at risk will no longer be considered.”
Let that last line sink in. It’s actually a shocking statement for a government to be making. It’s like they’re just handing the steering wheel to industry, and giving up on any pretence that their role was to act in the public interest, which includes protecting rare species and ecosystems. In this case, the only way to protect a species at risk is to know where they occur and when/ time of year they are there – and the new interpretation is signalling a move away from relying on this important historical knowledge.
Here is what the insider has to say about it:
Historical observations were used previously to provide context to assist people doing reviews or doing an on-site examination to identify the timing of when they should go in, what is the likelihood of finding a particular species within the area or surrounding area? Without that knowledge or information, a person doing an on-site visit may be going at the wrong time, or they may not have the expertise to be able to identify or determine whether that species is there or not—it might be a very secretive species. That information is not being used, and in my mind, that’s a very severe drawback for anybody doing a review or assessing an alteration request. This is information that has been collected through a large expenditure of money and time and resources, both with staffing as well as the information that comes from people who have done reviews in the past or have done environmental assessments or have been on site doing things. There is a large body of information housed within government of species at risk and locations of both endangered and vulnerable species.
Apparently, this enormous public asset is of little use now.
Golden-crest is a plant of the Atlantic Coastal Plain and is found in six wetlands in southwestern Nova Scotia – the only locations for this plant in Canada. Threats include alteration of wetland and shoreline habitat through land use change, water level manipulation and eutrophication. The new interpretation of Wetland of Special Significance excludes any consideration of this at-risk species. Photo: Nova Scotia Species at Risk
The Issue of Necessary Public Function
Essentially, the Wetland Conservation Policy (WCP) treats wetlands in two ways: it’s a normal wetland or it’s a wetland of special significance. According to the policy, if you want to alter a normal wetland then you have to be approved to alter it, and provide financial compensation for doing so. So, for instance, let’s say a developer wanted to infill a wetland for a housing subdivision, they would first have to get approval to do so and then provide financial compensation, by contracting a wetland restoration specialist to do that restoration work within the time frame required by the alteration approval. This means the developer can go ahead with their development, and infill the wetland, and a restoration specialist like Ducks Unlimited, say, might take that money, along with the money of others like them, and invest it in a larger wetland restoration project, likely elsewhere, and not necessarily of similar quality.2
But if the wetland is deemed a Wetland of Special Significance (WSS), the official policy states there is no way to alter these endangered ecosystems except under two circumstances: 1) “alterations that are required to maintain, restore, or enhance a WSS” or 2) “alterations deemed to provide necessary public function, based on an Environmental Assessment (if required) with public review or other approvals (eg. Wetland Alteration Approval) as appropriate.”
Therefore, there was a recognition when the policy was originally drafted, that there may be isolated circumstances in which government would have to alter a wetland of special significance, because of a ‘necessary public function’ like the need to twin a highway, for instance, where there might be no way to avoid the WSS.
So, even when the policy was drafted, the government was given the ability to alter a WSS for what was deemed a ‘necessary public function.’
If the current government wanted to be consistent with that policy—the original policy, that is—the use of ‘necessary public function’ as a justification to alter a WSS would be on a case-by-case basis.
Instead, the intent of the policy has been changed such that all the WSS that exist outside of the boundaries of all designated areas, but are connected to wetlands within the boundaries, are now no longer protected.
Necessary public function is being used to justify a blanket removal of protections which amounts to a functional delisting of WSS, and potentially opening up of all WSS outside of designated areas to development of some kind.
The government no longer has to justify necessary public function when allowing the destruction of wetlands of special significance.
This is a flagrant contradiction of the policy, which states there shall be “no loss” of WSS.
St. Andrews Marsh, Shubenacadie Wildlife Park. Photo: Treasured Wetlands of Nova Scotia.
Getting answers from the DNRR as painful as ever
You may recall, in an earlier post on this subject I reached out to the Department of Natural Resources and Renewables (DNRR) to find out the estimate of the area of WSS that currently overlap with designated Ramsar sites, but exist outside the boundary. Remember, prior to the new interpretation of the WCP, these wetlands were protected as well because they are functionally part of the wetland existing within the boundary.
I want to know how many hectares of wetlands have been functionally delisted.
Eventually, DNRR’s media advisor Patricia H. Jreige told me that I would have to figure it out myself. She said, all wetlands in Nova Scotia are in the forest inventory on Open Data here, which “includes water, forested and non-forested areas, identifies fresh water wetlands and coastal habitat area classifications.” There was nothing further she could do to help me.
It’s not the first time the department has sent me a link to data they claim is publicly accessible. I complained about it then, and am complaining now. There is nothing accessible about this Open Data portal when it comes to forestry data derived from (Geographic Information System) GIS.
The government insider agreed that the data are technically available, but you’d first need a GIS system on your computer to access them.
You’d have to be able to use the data to calculate the areas both in the Ramsar sites, provincial parks and wildlife management areas, all those boundaries are actually available. And then you'd have to overlay the wetland inventory on top of that and do a cut and remove to actually determine the area of wetland that would otherwise no longer be included versus what was included originally. It's a relatively simple thing to do if someone has a GIS system on their computer and knows how to work with GIS.
So, I asked Jreige if she could connect me with someone at the DNRR who could walk me through how to analyze and assemble the raw, pretty much indecipherable data myself, assuming I had the system to even open the files.
“The type of analysis you’re requesting requires significant resources. It is not something we can dedicate our resources to. The information I provided is the extent of what we can do for you. Typically, when people want to do this type of analysis with our data, they hire someone like a research firm or a grad student to do it for them.”
If I were a developer or industry rep, those data would be provided in a heartbeat.
Disinformation is defined as the deliberate dissemination of false or inaccurate information in order to deceive; misinformation can be providing incorrect or misleading information. The difference between the two has to do with intent – is it being done by accident or is it intentional?
I’m not entirely sure, but I do know that when the Nova Scotia government keeps insisting that the Wetland Conservation Policy “has absolutely not changed and neither has the interpretation of it,” that’s basically what we’ve always called a bald-faced lie.
As an aside, Hollett featured in one of my first articles on lichens in the province, because he, along with Allan Eddy, who was the associate deputy minister of the Department of Natural Resources at the time, was directly involved in what led to the censuring of Robert Cameron, a government scientist/ ecologist for presenting his latest research on boreal felt lichen in a public setting. His research showed that clearcutting played a role in the species’ decline, a message that was in direct conflict with the government’s official narrative.
This sounds all well and good, but there are problems when applied in the real world. Most of the wetlands that are appropriate for rehabilitation or restoration tend to be agricultural marshlands, so the wetlands being destroyed by the development/ project – likely valuable functional wetlands like fens and bogs, are being “replaced” or compensated for with wetlands that are not as valuable. The other issue is that the wetland being restored may not be anywhere near the wetland being lost, which is not only a loss of a very endangered ecosystem, it’s a loss of habitat for species that may have depended on the wetland for part of its lifecycle.
There has always been a lot of "creative wordsmithing" around forestry regulations/management by successive governments, e.g., “We have now developed tools that ensure that all harvest treatments are aligned with the nature-based requirements of Nova Scotia’s lands.” but wetlands always seemed sacrosanct. Until Now. Thx for keeping our eyes open, LP. Your highlighting the government's reference to "open data" as a way claiming they are being fully transparent is especially pertinent, I have had the same kinds of difficulties trying to understand what's going on in forestry/rollout of the TRIAD.
Thanks for pursuing this further. As David P. has commented, there does seem to be a lot of creative wordsmithing that goes on with everything to do with the environment - and many other areas as well. I always feel like we are dealing with an entity that has fully embraced the "bullsh*t baffles brains" modus operandi and simply changes words and meanings to fit the situation. It's infuriating.