June 2014

Esquimalt shoots CRD in foot. Now what?

FOLLOWING THE CRD'S APPEAL to Environment Minister Mary Polak to intervene in the “impasse” between Esquimalt and the CRD on amending zoning to allow for a larger sewage treatment plant at McLoughlin Point, Esquimalt Mayor Barb Desjardins wrote her own letter. Desjardins asked Polak to “decline the CRD’s request.” Her 12-page letter, supported by an 11-page legal submission, had the unmistakable heft of a well-considered battle plan.

The CRD’s appeal to Polak had argued that section 37 of the Environmental Management Act (EMA) provided the minister with authority to override Esquimalt’s refusal to amend its zoning of McLoughlin Point that allows for sewage treatment but limits site coverage and building height. It would appear the CRD made the mistake of bringing a knife to a gunfight.

Since the EMA was enacted in 2003, section 37 has never been invoked by an environment minister. For Polak to do so now would risk a legal test of the Act, with no certain outcome. A careful reading of the legal submission accompanying Desjardins’ letter leaves the distinct impression Esquimalt’s strategy to protect itself from becoming the septic tank for the entire region is well-founded in legal precedent.

The Act says, and I’m paraphrasing here, that if a “conflict” arises between existing zoning and the requirements of the Act, the Act trumps the zoning. But the Act also says, “a conflict does not exist solely because further restrictions or conditions are imposed…unless the minister by order declares that a conflict exists.”

Desjardins’ letter argued that, “In law, there is no ‘conflict’ on land use; there is no impossibility of dual compliance.”

The mayor’s logic is compelling: The CRD’s McLoughlin property is already zoned for sewage treatment—Esquimalt defined that zoning in 2013. The CRD could proceed with a treatment project there if it accepted the restrictions of Esquimalt’s existing zoning. Esquimalt’s refusal to allow the greater site coverage and higher buildings closer to the waterfront that the CRD wants does not prevent the CRD from using McLoughlin Point to meet some of its obligations under the Act to provide sewage treatment. So Polak should not intervene. That’s the mayor’s logic.

In its letter to Polak the CRD included a compilation of its objections to the conditions imposed by Esquimalt’s 2013 zoning bylaw. The most significant of these related to building height and siting requirements that, the CRD stated, “would severely limit the capacity” of a treatment plant constructed on the site. That, in turn, would necessitate “construction of a second [plant] at substantial cost to taxpayers.” This is really the most compelling element of the CRD’s argument, and that claim requires careful, arithmetical examination. After all, the CRD’s credibility on this file has been badly strained. How could the CRD, for example, spend $47 million in public funds on a plan that depended on locating a large, potentially foul-smelling industrial building at the entrance to Victoria Harbour and somehow overlook that ordinary setbacks and height restrictions would be applied by Esquimalt?

Desjardins directly countered the CRD’s claim that Polak should intervene because Esquimalt’s application of setbacks and height restrictions could cause greater expense to taxpayers. She told Polak, “CRD’s submission claims there will be increased costs, but that is not a legitimate legal basis to override legitimate local zoning.” Indeed, section 37 has nothing to say about “cost,” just “conditions,” so it’s possible Esquimalt would take the minister to court for imposing the McLoughlin plant on them on the basis of “cost to taxpayers.”

But for the average taxpayer, this is a critical consideration. Is Esquimalt’s refusal to amend its rezoning going to cost taxpayers more money? This is a much more complex question than the CRD is implying, and finding anything more than a superficial answer requires looking back at what the CRD has said about costs in the past and then doing a little arithmetic.

Back in the spring of 2010, the CRD was promoting a four-plant configuration that, it said, would cost $942 million and provide 124 million litres per day of treatment capacity. That cost was validated by Ernst & Young, which, several months later, similarly validated the $830 million cost of the 108-million-litres-per-day plant that the CRD now wants to build at McLoughlin (both estimates were done by Stantec).

Whether either of these dollar figures are an accurate reflection of likely costs is an open question, but their relative values are likely credible. And that allows us to make a comparison of value for money. The point of that approach is to determine which option is the most efficient and effective use of tax dollars.

The four-plant configuration works out to $7.60 per litre of treatment capacity; the one-plant configuration $7.67. On that basis, taxpayers would be getting a better deal with the four-plant configuration if the extra capacity could be arithmetically justified.

Actually, the CRD has already done that justification and that received the blessing of the Minister of Environment. In Amendment 7 of its Liquid Waste Management Plan, the CRD used a set of population projections to justify their proposal for a 124-million-litres-per-day 4-plant treatment configuration. In Amendment 8, they used the same population projections to justify a lower-capacity single-plant configuration at McLoughlin. But this is arithmetically illogical and raises two questions: Did the consolidation to a one-plant system create a plan that lacks capacity for future growth? Would the CRD’s choice of a one-plant configuration at McLoughlin require construction of a second plant sooner than the CRD is admitting? I’ll come back to these questions in a moment.

First, it’s likely Minister Polak, or her aides, will notice that the size of the plant the CRD was proposing for McLoughlin Point in early 2010 was only 40 percent of what the CRD now wants Polak to force upon Esquimalt. That 2010 plant would have fit within the building setbacks and height restrictions Esquimalt’s zoning has since imposed. There would have been no conflict.

Going back to the question of whether the CRD’s current plan would provide adequate capacity for future growth, comparison with other treatment projects in British Columbia is illuminating. In North Vancouver, the Lions Gate Secondary Wastewater Treatment Plant produced its project definition report last February. Like the CRD’s project, Lions Gate will be built to meet new federal regulations requiring a minimum of secondary treatment by 2020. Its design capacity is just five percent smaller than the capacity proposed for McLoughlin Point. Yet there’s a remarkable difference between the two. By the time Lions Gate reaches its full capacity around 2050, it will be serving a residential population of 254,000 plus institutional, commercial and industrial users. The CRD says that the marginally-larger McLoughlin plant will be able to serve a residential population of 342,000 plus institutional, commercial and industrial users. Why is there such a dramatic difference in the per capita capacity provision for Victoria and North Vancouver?

When McLoughlin’s treatment capacity is compared with Kelowna’s, there’s a similarly large per capita difference in the capacity being provided. Tellingly, Kelowna and Lions Gate have allowed for almost identical per capita capacity.

Comparison of the physical sizes of the sites that will be used by Victoria, Kelowna and Lions Gate point to the cause. Kelowna’s plant is located on nine hectares, Lions Gate on three hectares. The McLoughlin Point site, which will serve the largest population of the three, is only 1.4 hectares in size. It’s that small size that limited the treatment capacity the CRD could build there.

The risk to taxpayers in this situation is that the CRD’s shift from a four-plant configuration to putting all treatment at McLoughlin wasn’t based on a careful assessment of the regions’s predictable treatment needs or a value for money approach to the problem. The CRD has created a situation where construction of a second plant at substantial cost to taxpayers may be right around the corner—the very same result the CRD says would follow having to build a smaller plant at McLoughlin.

Why did the CRD’s plan for four plants shift to just one large one?

In June of 2010, CRD directors were told the consolidation to a central site was necessary to ensure federal funding. But the timing of this shift suggests local political considerations may have also played a part. The four-plant configuration was dumped soon after CRD staff experienced hostile encounters with residents of Saanich East-North Oak Bay in the spring of 2010 during public consultation on the CRD’s plan to locate a treatment plant in Haro Woods.

At least one indignant Saanich resident told the CRD that, if it went ahead with its plan, he would sue them if he detected so much as a “whiff” of sewage. A CRD report on that consultation noted, “Throughout the public events, CRD staff witnessed a high degree of aggressiveness and distress amongst some participants. CRD staff will look to incorporate best practices in future public processes which discourage these types of behaviours. This [is] to ensure everyone has an equal opportunity to participate and share their own views in a neutral and safe environment.”

In fact, the Haro Woods encounters were the last any member of the public saw of CRD staff before the sudden announcement that all treatment would take place in Esquimalt. No consultation took place with Esquimalt residents before that consolidation, even though the Environmental Management Act explicitly required the CRD to do so. Esquimalt has been fighting back ever since. Was a super-sized McLoughlin plant a quick fix for Saanich politicians fearful of blow-back from well-heeled constituents, rather than a reasoned approach to providing the most cost effective treatment solution over the long term?

This was the moment when the CRD’s plan began its slow-motion derailment. That Esquimalt might rezone to suit its preferences ought to have occurred to CRD officers and directors back then, but if it did, they seemed to have misjudged the relief that might be provided by section 37.

Desjardins captured this in her letter to Polak when she reminded the Minister that as recently as April 24 at a CRD board meeting, CRD CEO Robert Lapham stated the CRD “isn’t obligated to rezone the property.” Desjardins wrote, “[Lapham] asks Mr Hull—an engineer, not a lawyer—for the reference to the Act that states that. There is no Act that states that.” Desjardins letter provided the Minister with a full transcript of Lapham’s halting, apparently confused grasp of the CRD’s unsupportable position.

Desjardins told Polak the “CRD’s attack on the Township Zoning Bylaw is incorrect in law, internally inconsistent, and hypocritical…The CRD’s assertions are more argument than they are settled law. If there is a proper legal argument to be made regarding municipal zoning, the CRD can and should make it in Court.”

Pointing to a way out of the “impasse,” Desjardins told Polak, “CRD’s assessments of the appropriate models of sewage treatment and sites are dated and were made on cost assumptions that have proven to be incorrect. There is other evidence to suggest decentralized systems can be built for less cost.” 

Desjardins and her councillors have already moved to distance them from the CRD’s “dated” models. They’ve joined forces with Cascadia Green Building Council and have launched the “Esquimalt Village Living Community Design Competition.” This is intended to be an “international design competition” that “strives to craft a 21st Century sewage treatment solution for Esquimalt that can also be used as a model for the entire region,” according to a Cascadia press release. In the release, Cascadia’s Neville Grigg noted, “The design competition incorporates sewage treatment into the heart of the community as a source of water, heat and energy which will offer a sustainable, competitive advantage for Esquimalt.”

I asked Desjardins if she would support a reworked regional treatment plan based on the CRD’s 2010 four-plant configuration, with either a much smaller plant at McLoughlin or one located in the Esquimalt Village centre. “The best value may not be McLoughlin at all,” she said, “because there’s nowhere at McLoughlin where resources can be utilized at their highest value.” Desjardins added, “That’s partly why Cascadia is looking at the opportunity in the Esquimalt Village project, because it will have new development very close which can hook in almost immediately. The use of the heat and energy coming out of the treatment centre for public buildings in the area is substantial.”

Desjardins said Esquimalt would consider including Vic West and View Royal in the Village treatment plant.

I asked Desjardins a second time if she could see supporting a smaller plant at McLoughlin as part of a regional system. “Here’s my real problem with McLoughlin,” she said. “Not only would it not be the best use but you haven’t taken into consideration the biggest concern: Why would we put that infrastructure right at the entrance to the harbour—and why would we put it in a tsunami zone? Can you fit the plant into the provincial guidelines that advise setbacks of 15 metres? Why would we put a plant in harm’s way? We know that climate change is causing rising sea level. During Hurricane Sandy, all of the big plants went down; none of the distributed systems went down. All those things are saying ‘Don’t do it.’”

Esquimalt’s and Desjardins’ position are supported by a large number of regional citizens who the CRD has bluntly labelled “the opposition.” One such thorn in the CRD’s side is the Sewage Treatment Action Group (STAG). Over the past several months STAG has developed information about an alternative to the CRD’s one-plant configuration that would see construction of a number of distributed tertiary treatment plants. I reported here last month on STAG Director Richard Atwell’s research that showed the CRD has been cherry-picking costs from different studies, depending on which would make tertiary distributed look the most expensive and the one-plant configuration look the least costly. The CRD insists a study done for it in 2009 showed an 11-plant distributed model would cost “$2 billion.” (The study actually put the cost at $1.85 billion.)

Atwell’s research also suggested that a distributed tertiary model based on the building concept and treatment technology used at Lighthouse Point Water Reclamation Facility in Blaine, Washington, if applied to Victoria, would cost far less than the CRD’s “$2 billion.”

This doesn’t seem to be fully supported by the numbers.

Blaine’s Public Works Director Ravyn Whitewolf told Focus the Lighthouse Point project cost $36 million, including engineering, construction and construction management costs. That figure didn’t include conveyancing to and from the plant, or an outfall.The facility uses membrane bioreactor technology like Dockside Green’s and produces water than can be reused for agriculture. The facility bears little resemblance to the industrial-looking buildings most of us associate with public works projects.

Whitewolf, a professional engineer, said the plant was designed for a maximum Average Dry Weather Flow (ADWF) of 3.4 million litres per day. BC’s municipal sewage regulations require treatment plants to be capable of treating twice the measured ADWF to secondary standards. The McLoughlin plant, for example, was designed for an ADWF of 108 million litres per day, but would have been capable of secondary treatment of 216 million litres per day. To treat that amount of sewage would require 63 Blaine-size plants. At $36 million a pop, 63 plants would cost $2.3 billion. This is, of course, just an arithmetical exercise.

When the CRD’s consultants designed the aforementioned four-plant configuration, the plant to be located in Haro Woods was designated for tertiary treatment and the design capacity for that plant was set at 1.75 times ADWF. If that reduction in treatment capacity was permitted by the Province across the system, only 56 Blaine-size plants would be needed. At $36 million a pop, 56 plants would cost $2.0 billion.

If that last calculation is done for the current ADWF rather than for the capacity of the proposed McLoughlin Point system, 43 Blaine-size plants and $1.5 billion would be required. With this scenario, there would be no cost for unused capacity. More capacity could be added as required.

All of the above assumes Blaine-sized plants. There would doubtless be savings by doubling or tripling the size of plants. But one of the attractions of the Blaine model is that its human-scale architecture would allow it to be located just about anywhere. To obtain economy of scale the physical size of the plants would need to increase. Whether that enlargement would start to erode the very attributes that would make such small plants easy to integrate into the city’s neighbourhoods is an open question. But that scaling up could make it politically difficult—if not impossible—to locate so many facilities that resemble, say, firehalls, into the community.

Again, this is just an arithmetical exercise, and additional subtractions, multiplications and consideration of technical nuances are necessary for a clearer understanding of the real potential for alternative models so they can be properly compared with the CRD’s plan. In an election year, CRD politicians might want to consider doing that instead of twisting Minister Polak’s arm.

In the article that follows this, Katherine Palmer Gordon relates what two scientists have to offer on this issue. One of them, Dr Chris Garrett, tells Palmer Gordon: “I’m not necessarily anti-sewage treatment, I’m pro-arithmetic.” Precisely.

UPDATE

On May 27, 2014, BC Environment Minister Mary Polak announced that she would not override Esquimalt's zoning. The Minister's announcement is here, the CRD's subsequent announcement here, and the Township of Esquimalt's response is here.

David Broadland is the publisher of Focus.