The Director of
Environmental Protection
EIA Ordinance
Register Office
Environmental Protection Department
27th floor, Southorn Centre
130 Hennessy Road,
Wanchai,
Hong Kong
11th July 2000
Dear Sir
SUBMISSION
From the Hong Kong Bird Watching Society
This submission objects to the proposed Sheung Shui
to Lok Ma Chau Spur Line and the Environmental lmpact Assessment Study, which was
commissioned by the KCRC in support of their application for an Environmental
Permit.
1. SUMMARY
It is submitted that:
·
The evidence
revealed by the EIA Report demonstrates that the Spur Line should not be
constructed through Long Valley (and nor should any other infrastructure
project).
·
The
Technical Memorandum and Study Brief have not been complied with.
·
Overriding
international obligations require that the Spur Line is not constructed as
proposed and that a permit is not issued.
·
Justification for the Spur Line has not
been made out.
·
The EIA
Study failed to consider total avoidance of Long Valley.
·
Alternative
routes have not been properly considered and an ecologically preferable route
has been rejected.
·
Cumulative
impact has not been properly assessed.
·
The impact
of the construction and operational phases has not been properly assessed.
·
The
mitigation and compensation measures proposed fail to take account of the value
of the habitat to be destroyed, are seriously inadequate and are of very
doubtful long term sustainability.
·
The EIA
Study seeks to defend admitted serious adverse impact by relying on mitigation.
This standpoint means that:
Ø the Technical Memorandum and Study Brief
have not been complied with; and
Ø Because the mitigation fails, the project
is indefensible on the EIA Study’s own terms.
·
The rarity,
diversity and number of the bird species recorded demonstrate Long Valley’s
importance internationally as being comparable with that of Mai Po Nature
Reserve and that it should be zoned as a Conservation Area and managed and
protected as a Nature Reserve.
The main emphasis of this submission will be on the
important wildlife rich area of freshwater wetland known as Long Valley, but
other areas will be considered.
2.
EXHIBITS
The area of Long Valley referred to in this submission is the whole area between Ho Sheung Heung and Tsung Yuen to the west, Yin Kong and Tsung Pak Long to the South, the KCRC railway to the east and Lo Wu Camp to the north.
(a) The area is as marked in green on the following exhibits:
Ÿ Plan of whole area with indication of wet and dry agriculture.
Ÿ Plan of whole area with indication of wet and dry agriculture and alternative routes.
(b) International / Expert comment on the Spur Line:
i. Professor David Dudgeon of the Department of Ecology and Biodiversity, University of Hong Kong.
ii. Mr. Ross Hughes of Birdlife International.
iii. Mr. L.C. Wong of Kadoorie Farm and Botanic Garden.
iv. Summary of other international comment.
(c)
Letter from the Secretary General of Ramsar to the
Ramsar Convention Implementing Office, Beijing.
Paragraph numbers, Tables, Drawings and Appendices cited are from the EIA Report unless otherwise indicated.
3. FAILURE
TO COMPLY WITH TECHNICAL MEMORANDUM AND STUDY BRIEF
It is submitted that the relevant criteria have not been applied or have not been given the required weight.
a) The Guiding Principle 3.1(a) of Annex 16 of the TM
This provides:
“Any project that is likely to result in adverse
ecological impacts in areas of ecological importance shall not normally be
permitted unless the project is necessary; it has been proven
that no other practical and reasonable alternatives are available, and adequate
on-site and off site mitigation measures are to be employed.”
Given the ecological evidence contained in
the Report, the normal position is therefore that this project should not be
permitted.
If, exceptionally, the project is to be considered, those proposing it have to prove (not merely assert) that it is necessary (which has not been done) and that no alternatives are available (which has not been done) and that that the mitigation proposed is adequate (which demonstrably has not been proved).
(b) Paragraph 5.4 of Annex 16 of theTM
This provides the following order of priority, which has not been applied:
i. Avoidance - when the assessment identifies very serious impacts, the “no-go” alternative may be the only realistic option and should be included against all other options. This has not been done.
ii.
Minimising - if avoidance is not possible, impact should be
minimised by restoration of disturbed areas. In Long Valley, the disturbed
areas would not be restored, i.e. to what they were; they would be
lost or degraded.
iii Compensation
– if not possible to avoid and if, despite minimising, important species and
habitats are lost, then compensation is to be provided and enhancement is
always to be considered. The compensation is inadequate. There is no
enhancement.
(c) Annex 8,
Table (1), (2) and (3) of the Technical Memorandum
The following have not been properly applied in evaluating the site and the impact:
Larger areas of habitat
are more valuable than smaller ones.
The more fragmented a habitat the lower
its value.
The more diverse the species assemblages
and communities of a site, the higher its conservation value.
Impact is more significant if ecologically
important species are affected.
The rarer the species the more value it
has.
The Report states that
“The San Tin and Long Valley areas are
also likely to be particularly valuable because of their large unfragmented
area which has the capacity to support relatively large populations of many of
the Species of Conservation Importance in question.”
The Report then goes on to support, however, a route for the Spur Line that will dissect and fragment that large unfragmented area. This is just one illustration of the many ways in which the criteria have not been fulfilled and the conclusions proposed are inconsistent with the evidence.
(d) Annex
10 paragraph 1.1(d) - Criteria for landscape impact
This provides:
“The impact is unacceptable if the
adverse effects are considered too excessive and are unable to mitigate
properly.”
The visual and landscape impact of the Spur Line on the Viaduct across the centre of the wide open space of Long Valley is both unacceptable and not possible to mitigate even in the Report’s own terms:
i. The Report accepts that Long Valley has high landscape quality and high sensitivity to change due to the openness of the landscape, the low level of existing disturbance and the high degree of vegetation (paras 5.5.17 and 5.7.4).
ii. The Report admits that the elevated viaduct will have a high visual impact in the rural and predominantly flat landscape of Long Valley (table 2.1).
iii. The photomontages at Figures 5.10l and 5.10n vividly illustrate such impact.
iv. The Report admits that it is impossible to mitigate the visual and landscape impact, where mitigation is to be attempted at the base of the Viaduct (para 5.12.16). The correct conclusion from this is that the impact is unacceptable (particularly as the mitigation measures are inadequate).
Those considering the proposed project must be under
no illusion that in landscape terms the Viaduct would change significantly the
landscape character of Long Valley.
(e) The
Study Brief
Paragraph 3.9 states that “In particular,
the proposed project should avoid impacts on recognised sites of conservation
importance and other ecological sensitive areas.”
The Spur Line would dissect the ecologically sensitive centre of Long Valley. It patently does not avoid it.
Paragraph 3.9.3.ix states that the assessment
shall “ recommend all possible alternatives…and practicable mitigation
measures to avoid, minimise and/or compensate for the adverse ecological
impacts identified.”
The Report does not consider avoidance of Long Valley.
It is submitted that if the criteria of
the Technical Memorandum and the Study Brief are properly applied to the evidence the conclusion is that:
i. The Spur Line should avoid Long Valley totally.
ii. The Report speciously seeks to justify not avoiding the site by relying on mitigation.
iii. The mitigation proposed is inadequate.
4.
OVERRIDING INTERNATIONAL AND
NATIONAL OBLIGATIONS
(a)
The Report
recognises that the Spur Line and Lok Ma Chau Station is a major intrusion into
the Wetland Conservation Area of Inner Deep Bay (WCA) and that it is the first
such intrusion since the designation of the Ramsar Site (para 4.3.11 and
4.3.10). Under the planning guidelines:
i. New
development should not be allowed within the WCA unless the development is an essential
infrastructure project with overriding public interest (or it is required to
support the ecological value of the area). No such case has been made out for
the Spur Line (para 7 below).
ii. Such
an infrastructure project has to demonstrate that it will not result in a net
loss of wetland in function or area (para 4.3.9). The Spur Line project will
contravene this. There will be a net loss of 9.5 hectares of fishponds at Lok
Ma Chau.
(b) The
Convention on Wetlands of International Importance especially as Waterfowl
Habitat (Ramsar), to which China is a party and which has been extended to Hong
Kong defines wetland as follows:
“Areas of marsh, fen,
peatland or water, whether natural or artificial, permanent or temporary, with
water that is static or flowing, fresh, brackish or salt, including areas of
marine water the depth of which at low tides does not exceed six metres.
Long Valley falls squarely within this definition. Parties to the Ramsar Convention are required to use their wetlands wisely. Ramsar Information Paper Number 2, in setting out the commitments of Parties joining the Ramsar Convention, states that under the Convention there is a general obligation for the Contracting Parties to include wetland conservation considerations in their national use planning. They have undertaken to formulate and implement this planning so as to promote the:
“wise use of wetlands of
their territory”( Article 3.1).
Ramsar also provides that:
“Wetlands
should be selected for the List on account of their international significance
in terms of ecology, botany, zoology, limnology or hydrology. In the first
instance, wetlands of international importance
to waterfowl at any season should be included.”
It can be seen that Hong Kong’s obligations under Ramsar relate to any such wetland, not only to those already designated as Ramsar sites. It is submitted that permitting the Spur Line to be constructed would be in breach of Hong Kong’s international obligations under Ramsar. Reference is further made to the letter from the Secretary General of Ramsar to the Ramsar Convention Implementing Office in Beijing, a copy of which appears as Exhibit (c) to this submission.
(c) Long Valley has been identified as an Important Bird Area within the Deep Bay - Shenzhen River Catchment Area as supporting globally threatened species categories and meeting the necessary criteria. It is recognised as a globally important site for conservation of avian diversity by BirdLife International, which is a partnership of organisations in over a hundred countries for the protection of birds, their habitats and diversity. Attached to this submission at Exhibit (b)(iv) is a summary of comments by a number of other international ornithological organisations and overseas birders and visitors to Hong Kong expressing the view that Long Valley is of international importance.
It is submitted that the diversity of the site requires action to be taken to protect it pursuant to national and international obligations under the Biological Diversity Convention signed by the PRC, as well as under Ramsar.
(d) Under the Hong Kong Planning Standards and Guidelines (HKPSG Dec 1994), Chapter 10 - Conservation, two of the principles stated to be adopted for the practical pursuit of conservation in land use planning, are as follows:
i. retain
significant landscapes and ecological attributes and heritage features as
conservation zones; and
ii. create, where possible, new conservation zones in compensation for areas of conservation value which are lost to development.
The evidence demonstrates the significance of the ecology and the landscape of Long Valley. All similar habitat has been “lost to development”. No new zones are available or creatable. The reality is that Long Valley will be lost to development if the Spur Line is permitted. It should therefore be retained intact.
5. VALUE
OF LONG VALLEY
A reminder of the general nature of the area under consideration is timely. Long Valley is a significantly large open space of wet and dry fields, reeds, grass, shrubland, marshy ponds and open ponds and streams. Traditional agricultural methods are carried out. It is ecologically important because of its unique combination of the following:
(a) It functions as a freshwater wetland;
(b) It has minimal habitat fragmentation;
(c) It has low levels of human disturbance; and
(d) It has a high degree of microhabitat diversity.
In this habitat a diversity of life forms live and breed providing a major source of biodiversity for the SAR as a whole.
It is the last remaining area of freshwater agricultural habitat representative of the once extensive flood plains in the northwestern New Territories. There used to be large areas of similar wetland habitat in the plains at Shek Kong, Kam Tin, Ping Shan, Ha Tsuen, Tin Shui Wai and San Tin. All of these have been lost to development.
The
EIA Report accepts that Long Valley is the last remaining area of habitat of
its type in Hong Kong (para 2.2.6).
(a) Ecological
Value
The Report demonstrates the extremely high ecological value of habitat of Long Valley, supporting a diverse range of flora and fauna, including large numbers of Species of Conservation Importance (para 4.4.14 and tables 4.10 and 4.12 to 4.16). Recorded at Long Valley are:
i. 213 species of Birds, including 29 Species of Conservation Importance regularly recorded (table 4.4).
ii. 97 species of Butterflies (table 4.3). Of these, 5 very rare species and 10 rare species are accepted to be Species of Conservation Importance.
iii. 9 species of Amphibians and Reptiles, including 2 uncommon frogs, 4 species of lizard, 2 species of snake and 1 terrapin (para 4.3.21). The uncommon frogs breed in marshes and are found in inactive and wet agricultural fields.
iv. A number of species of mammals that are likely to occur are Species of Conservation Importance (para 4.3.35).
The Report evaluates a high number of 5 habitat types within the Long Valley/Ho Sheung Heung area as being of High Ecological Value (Wet Agricultural Land - table 4.10, Inactive Agricultural Land - table 4.12, Active Fishponds – table 4.13, Marsh – table 4.16).
(b)
Value for Bird Species of Conservation Importance
There are numerous references to the value and importance of Long Valley for bird species in the Report, including
“The results of the analysis of the
distribution of birds clearly show the high ecological importance of the Lok Ma
Chau, San Tin and in particular, the Long Valley areas.” (para 4.3.2.9)
“The available data clearly show that
Study Area is of international, regional and local importance in terms of the
avian community it supports. Within the Study Area the large area of fishponds
around San Tin and Lok Ma Chau and the extensive agricultural areas with
remnant marshland habitats in Long Valley are of particular importance.”(para
4.3.33)
Those considering the proposed project must be in no doubt that:
i. A significant number of Bird Species of Conservation Importance are reliant upon the unique habitat types found in Long Valley. This is recognised in the EIA Report (APP H); and
ii. These particular habitat types will be seriously impacted by the Spur Line. This is again recognised in the EIA Report (AP I - 15 and 19), but understated. The almost certain impact is that these habitat types will be lost; and
iii. If these unique habitat types are lost the consequence will be the permanent loss to Hong Kong of the associated bird species and other Species of Conservation Importance and the loss of an important part of Hong Kong’s diversity resources.
Examples of some Species of Conservation Importance, the habitat types on which they rely and the evidence in the Report of the impact that the Spur Line will have on them are as follows:
Greater Painted-snipe – Found in wet agriculture, inactive agriculture and marsh. Breeds at Long Valley. Nocturnal feeder in inactive agriculture. Other sites have been fragmented or have lost this species. At Lok Ma Chau, for example, Greater Painted-snipe no longer occurs. The MDL EIA Final Report (CES 1997) concluded that
“In Hong Kong, Painted
Snipe is almost entirely dependant on Long Valley and Kam Tin Valley” and “…
the loss of both Kam Tin and Long Valley will eliminate the species’ favoured
breeding habitat in Hong Kong, and … it will almost certainly be lost as a
breeding species.”
The Spur Line EIA Report states that the impact on this species from disturbance by noise and visual movement would be “high to very high”(AP-21)
Pheasant-tailed Jacana – Most frequent site in Hong Kong. Formerly breeding in Hong Kong. Found in wet and inactive agriculture and marsh. The EIA Report states that the habitat loss from construction operations is of “very scarce habitat”(API-13) and the species would be “extremely close to source of disturbance”(API-22).
Watercock – Recorded annually in Long Valley. Formerly bred in Hong Kong. Found in inactive agriculture, pond and marsh. The EIA Report states that its area will be “highly fragmented”(API-18).
Chestnut Bittern – Recorded annually. Highest count, five birds in
1994. Otherwise and elsewhere in Hong Kong single birds recorded. Found in inactive agriculture and marsh. The EIA Report acknowledges that its habitat is “very scarce”(API-15).
Japanese Quail – Highest count each year in Long Valley. Found in dry and inactive agriculture. The Report states that the impact “would be moderate to high”(APJ-3 and APJ-10).
Common Snipe – Long Valley has the highest totals at one site for Hong Kong. Found in wet, dry and inactive agriculture and marsh. The EIA Report states that the impact for this species from habitat loss from construction operations would be “high to very high” (API -15) and from habitat fragmentation would be “high to very high”(API-19).
Pintail Snipe – Highest counts for Hong Kong. Also found in marsh. Again impact stated to be “high to very high”(API-15 and API-19).
Swinhoe’s Snipe – Highest counts for Hong Kong. Again marsh habitat and high to very high impact (API-15 and API-19).
Bluethroat – Highest counts in Hong Kong. Found in wet, dry and inactive agriculture. The EIA Report states that the species’ habitat/area is “extremely close to source of disturbance” (API-23) will be “highly fragmented”(APJ-19).
6. AVOIDANCE
(a) It
is submitted that the evidence in the EIA Report (para 5. above) leads to the
conclusion that Long Valley is of such value that construction of the Spur
Line, or any other development, should not be permitted to take place in the
area.
(b) The EIA Study did not consider the total avoidance of Long Valley as an option. The alternatives considered would all impact on Long Valley to a greater or lesser extent. This can be seen from the only alternative routes illustrated in Figure 2.3.
This is in breach of the provisions of the Technical Memorandum and Study Brief (para 3 above, Guiding Principle 3.1(a) and para 5.4 of Annex 16 of the TM and para 3.9 of the Study Brief).
No reason is given for not considering the total avoidance of Long Valley as an option.
(c) The Final Strategic Environmental Assessment Report on the Second Railway Development Study (RDS) has suggested that Long Valley should be an “absolute constraint” as follows:
“7.4.24…Overall, a recent ecological study
for the NENT Development Study has concluded that the Long Valley area is one
of the most important freshwater wetlands in the SAR in terms of avian
diversity, and that the preservation of this area is important for protecting
the biodiversity of Hong Kong.
“7.4.25 In view of the above, the Town
Planning Board and the Full Committee of the Advisory Council on the
Environment have recommended that the Long Valley area be protected. As a
consequence, the recommended Outline Development Plan is currently being revised
to rezone the area to a classification of “Other Specified Uses (Nature Park)”.
“7.4.26 Following the completion of the
rezoning, the site will have statutory protection and will therefore for the
purposes of this strategic study, need to be considered as an absolute
constraint. It has therefore been necessary to revise the freight line
alignment such that it does not encroach upon the protected area. The revised
alignment now runs the north-west of the Long Valley area.”
If Long Valley
should be totally avoided for the purpose of RDS, then patently the Spur Line
should not be permitted to impact it now and should totally avoid it.
7. JUSTIFICATION
FOR THE SPUR LINE
(a) The Report relies only on peak passenger numbers on 2 festival days in 1999 to predict overcrowding at immigration facilities at Lo Wu in the future to seek to justify the need for the Spur Line to the Lok Ma Chau Border Crossing (para 1.1.2). No further justification is given of the necessity to cause such adverse impact to such an ecologically important area.
(b) No data is given to show that the existing East Rail to Lo Wu Line is presently running to full capacity in terms of (i) number of trains (ii) number of passengers (iii) number of passengers on each train. No information is given as to the effect of simply running more trains on the East Rail line. No consideration is given to whether any overcrowding at Lo Wu could be due to other factors, such as Immigration or Customs procedures or operating hours at Lo Wu. No information is given as to the consequences of any overcrowding; these are just assumed.
(c) No
comment is made as to the necessity for the Spur Line when the route already
proposed for West Rail will or could in any event take passengers to Lok Ma
Chau.
The proponent has
failed, and indeed has not even attempted, to prove that exceptional
circumstances require permission for the Spur Line on the grounds of its
claimed necessity, as is required by the Guiding Principle 3.1 (a) of the TM.
8.
ALTERNATIVE
ROUTES
(a) Beas
River
The Report seeks to justify the route selected (the Central Alignment) as opposed to other routes, in particular the Beas River route. The Report selects the Central Alignment despite evidence in the Report pointing to the Beas River route being environmentally the better route:
i. The freshwater marsh area in the centre of Long Valley is only impacted by the Central Alignment (Volume 3 Appendix 1 p.1 - APP 1).
ii. The Central Alignment would cause higher disturbance impact and the Beas River route would cause lower disturbance impact to Bird species of Conservation Importance (APP 2,7 and 8).
iii. The Beas River route would cause less fragmentation (para 2.9.5.1.3), would be less destructive of habitat of ecological importance in the construction period (table 2.3) and would be the preferred option ecologically (table 2.4).
iv. The Beas River route has less significant adverse impact on the landscape character of Long Valley (table 2.4).
It is specious to say as claimed by the Report that the Central Alignment and the Beas River routes are equal ecologically (para 2.9.5.1.3). This can readily be seen if the criteria set out in paragraph 3 of this submission (from the TM and the Study Brief) are applied, in particular that ecologically it is preferable to avoid damage rather than to cause damage and then try to mitigate and compensate. The lack of recognition of this principle and the attempt to argue that it is preferable to mitigate and compensate serious adverse impact, rather than avoiding it, calls into question the whole methodology of the Study and the Report.
(b) HKBWS
Compromise
Given the ecological importance of Long Valley, the most desirable position would be for no transport infrastructure to be routed across the area.
Both the northern area and the southern area are of ecological
value. The northern area contains,
for example, inactive agriculture upon which certain critical species rely
(paragraph 5 above).
The Report does not consider the alternative compromise route proposed by the Hong Kong Bird Watching Society (Exhibits (a) to this submission). This route is North of the Beas River route, north of the retrained River channel, south of the route proposed for the Fanling By-pass, includes West Rail and leaves the southern “core” of Long Valley and the area north of the “Corridor” intact. It is different from the Beas River route considered in the EIA Report.
This route is not a desirable outcome, in that it will impact on the north of Long Valley, but at least it has the advantage of combining all transport projects in one area, rather than having several projects dissecting Long Valley in different places. It is considered that the resultant fragmentation would be less.
It was advisable and possible to re-route the proposed construction of the Fanling By-pass out of the core of Long Valley to the north of the retrained River Channels. It should be possible to do likewise for the Spur Line and West Rail.
9.
CUMULATIVE IMPACT
The Report fails properly to assess the cumulative environmental impact of the Spur Line together with all other projects taking place or planned across Long Valley. The EIA Study is required to have the methodology to evaluate the sum of and the differentiation between such cumulative impacts by paragraph 4.3.1 (c) (ii) and (iii) of the Technical Memorandum.
(a) Fanling
By-Pass
The route for the Fanling By-pass presently proposed is shown on Exhibits (a) to this submission. The EIA Study did not do an assessment of the cumulative impact of the Fanling By-pass and the Spur Line, despite its proximity and inevitable cumulative impact.
There is merely general mention of the Fanling By-pass as a “road” in the main body of the Report (table 2.3). It is stated that for the Central Alignment the
“Long term fragmentation effects for core area of Long Valley [are]
greater as largest part of Long Valley will be situated in a triangle bounded
by road and railways.”
There is only specific mention of the
Fanling By-pass by name in the Appendices. The impact of the Beas River route
is stated to be
“lower as the alignment follows, at various
points, East Rail, the channelised River Beas and River Sutlej, and the
proposed Fanling Bypass.”(APP3)
(b) West
Rail Phase II
The route for West Rail Phase II presently proposed is shown in Exhibits (a). It can be seen that the presently proposed routes for the Spur Line, West Rail Phase II and the Fanling By-pass dissect Long Valley in 3 separate ways. This is also shown on the Proposed Development Plan for Kwu Tung North. There is nevertheless apparently no mention of West Rail Phase II in the Report, let alone an assessment of the cumulative impact of West Rail Phase II and the Spur Line.
The proponents have recently given some indications that the route for West Rail Phase II has changed. It is submitted that this assessment of the Spur Line cannot be properly considered until the proposed route for West Rail Phase II has been identified.
(c) River
Channelling
Reference is made in
the Report to the River Channelling project on which construction is presently taking
place in terms of the baseline for assessment of the Spur Line. The question
whether further adverse impact should be allowed in addition to that which has
already taken place is not, however, addressed.
(d) Other
projects
The Report looks at 6 other projects (table 4.28). It is questionable, however, whether the total accumulated impact even of these has been assessed. The adequacy of the proposed mitigation and compensation measures is then thrown into doubt.
(e)
Strategic EIA
There is no assessment of the cumulative
effect of all 4 projects separately dissecting Long Valley. Given the
acknowledged international, regional and local importance of Long Valley, a
Strategic EIA should be carried out of the impact of all projects together
before any further individual permit is granted for any one project. The impact
of the proposed Strategic Growth area for Kwu Tung North should be taken into
account.
10.
CONSTRUCTION AND
OPERATIONAL IMPACT
(a) The primary issue is that the Spur Line would have a significant adverse impact on the ecology of Long Valley in both the Construction and Operational Phases. This is admitted in the EIA Report. In essence in its construction and operation the Spur Line would cause loss and/or disturbance to :
i. An ecologically sensitive freshwater marsh.
ii. A large unfragmented area of diverse wetland habitats.
iii. Unique habitats for Species of Conservation Importance.
iv. The last remaining area of such habitat in Hong Kong.
This is the position however the impacts are analysed and whatever mitigation and compensation measures are provided for. The Report claims that such impacts would be reversible, mitigated or compensated. When the measures are examined, there is no evidence to support this view (paragraph 11. below).
(b) Tables 4.25, 4.26 and 4.27 show that there would be “considerable ecological change” in each of the agricultural, pond and marsh habitat types resulting from the construction operations of the Spur Line so far as habitat loss and fragmentation are concerned. It is claimed that this is reversible. The same tables, however, show the impact so far as soil compaction and hydrological disruption are concerned would only be “mostly reversible”. This is inconsistent. The habitat types cannot be isolated from their soil and water conditions; significant adverse impact would be caused during the construction phase and it is speculative to claim that this would be reversible in the light of the experience of recreated wetlands elsewhere (paragraph 11 below).
(c) It is in the nature of the construction business in Hong Kong that numerous subcontractors and sub-subcontractors work on a site of the scale of the construction of the Spur Line, with all the problems of site management that involves. A site visit to the West Rail construction site at Kam Tin reveals the reality of the results of this. A considerably wider construction “footprint’ is impacted than allowed in a desktop study. The assessment of impact during the construction phase is likely to be severely understated.
(d)
Tables 4.30, 4.31 and 4.32 show that
the ecological impact from the operation of the Spur Line on the agricultural,
pond and marsh habitat types from habitat loss would involve “considerable
ecological change”, the duration would be “permanent” and the impact
would be “irreversible”. This speaks for itself. Applying the
criteria for evaluating ecological impact in Annex 8 and the Guiding Principle
3.1 of the Technical Memorandum, the project should not be permitted.
11. MITIGATION
AND COMPENSATION
(a) Inadequacy
i. The mitigation and compensation measures proposed are inadequate in the Report’s own terms:
The Report accepts there is “scope for additional habitat provision” for 10 species of Conservation Importance (table 4.4). There is “scope for additional habitat provision” for Red-billed Starling, Chinese Pond Heron, Great Egret, Black-winged Stilt, Northern Hobby, Japanese Quail, Richard’s Pipit and Chestnut Bittern. The Study shows on its own terms that their needs will not be met. This means that the mitigation is inadequate, that all possible mitigation measures are not being proposed and that further measures could be.
The Report accepts that species of Conservation Importance are sensitive to noise and disturbance above and would avoid the compensation reserve under the Viaduct (para 4.5.23, 4.5.13). This questions the validity and effectiveness of the proposed reserve underneath the Viaduct.
The Report accepts that some species are particularly susceptible to the hazard of collision with trains and associated structures (para 4.5.5).
ii. Paragraph 5.4.2 of Annex 16 of the Technical Memorandum requires:
“The effectiveness of the proposed
mitigation measures shall be carefully evaluated and the significance of any
residual impacts after implementing them shall be clearly stated.”
Paragraphs 6.5 and 6.6 of Annex 20 requires
that the Report deals with the following questions:
“Is it clear to what extent the mitigation
methods will be effective?”
“Where the effectiveness is uncertain or depends on assumptions about operating procedures, climatic conditions etc or where there is a risk that mitigation will not work, is this made clear and has data been introduced to justify the acceptance of the assumptions?”
Paragraph 3.9.2 x of the Study Brief requires the Report to
“evaluate the feasibility and
effectiveness of the recommended mitigation measures and define the scope,
type, location, implementation, arrangement, subsequent management and
maintenance of such measures.”
These requirements are not fulfilled, as set out in the following paragraphs.
iii. There is no scientific evidence provided to show that the proposed compensation measures would work, particularly the attempt to create a “wetland” under the Viaduct. There is no information provided, supported by observational data from successful cases elsewhere in the world with similar climatic conditions, on whether a piece of land with water cover created as proposed would ever develop into a mature ecosystem with the necessary mixture of plants, micro-organisms, worms, insects, amphibians, etc., that would become a habitat suitable or attractive for the bird species of Conservation Importance.
There is no evidence provided that the habitat would ever develop into such an ecosystem after the impact of a major construction project with all that involves in terms of soil impaction and pollution (as can readily be seen from a site visit to the current West Rail construction site at Kam Tin, whatever efforts are claimed to be being made on paper).
In other words, there is no scientific evidence provided by the proponent or their consultants that the “wetland” under the Viaduct would be valid and effective compensation to preserve the species of Conservation Importance in the long term. The Guiding Principle of the Technical Memorandum that it should be “proven” that adequate mitigation measures are to be employed has not been complied with and nor have the paragraphs from the Annexes and Study Brief cited above.
iv. There is the same dearth of scientific support for the proposed temporary wetland off-site to which the birds are supposed to go during the Construction phase. The provision for such a temporary wetland is in itself clear acknowledgement that species of Conservation Importance would be disturbed. (See also effects on particular species admitted in the Report cited above in paragraph 5 (b)). Importantly, there is no assessment of the double impact on the birds of moving to the temporary wetland during the construction phase and then having to move again when it ceases operation.
v. Professor David Dudgeon of the Department of Ecology & Biodiversity of the University of Hong Kong has said that he is aware that attempts to create artificial wetland for Species of Conservation concern overseas have met with very limited success (Exhibit (b) (i) to this submission). His conclusion is that avoidance of impact is a much more sustainable option than attempts to compensate and mitigate in an environment where success is by no means certain (and failure is rather likely).
vi. Mr L. C. Wong of Kadoorie Farm and Botanic Garden has cited experience in the U.S.A. where the success rate for creating a wetland for mitigation is only about 27%, principally because the ecology of wetlands is not well understood (Exhibit (b) (iii) to this submission). His reference is to “Mitigation Banking – Theory and Practice” pub.Island Press.
vii. Mr. Ross Hughes of Birdlife International has stated (Exhibit (b) (ii) to this submission) as follows:
“Experience of wetland creation elsewhere,
particularly in the USA (which also operates a ‘No Net Loss’ policy for
wetlands), indicates a high failure rate for wetland creation, even with
careful planning, adequate resources and high levels of technical inputs. In most cases, artificially-created
wetlands take many years before supporting similar wildlife communities to
those they are designed to replace.
The EIA is unconvincing in terms of provisions for planning, technical
support or resourcing. Most
importantly, there will be insufficient time between the physical creation of
wetland conditions (for example, for the temporary mitigation wetland) and the
establishment of wetland ecological communities. Institutional arrangements for post-completion wetland
management appear ad hoc and poorly
considered. Further, the risks of
wetland (re-) creation measures are not considered nor given due
prominence. The assertion that
mitigation measures will be successful is of pivotal importance to the approval
of this EIA.”
viii. The mitigation and compensation proposed fail to comply with the Technical Memorandum requirement in Annex 16 paragraph 5.4.5(d), that such measures shall be on a “like for like” basis. The same kind of ecological function and capacity have to be achieved. A long narrow area of created “wetland” underneath a viaduct and individual pieces of created “wetland” the small size of the Meanders beside the Beas River Channel (to be bordered by the Fanling Bypass) would not be equivalent to the existing habitat. Put simply, they would not provide the same conditions for birds to forage, roost and breed. The areas would be patchy and fragmented and could not perform the same functions as the existing wetland, which is a contiguous large area, which has developed and matured over many years.
ix. The Beas River compensation area now proposed is not significantly additional to that already required under the River Channelisation project. It is not clear whether this overlap in mitigation between the 2 projects was taken account of in assessing the cumulative impact of the 2 projects and/or when the impact of the River retraining project was used as a baseline for assessing the impact of the Spur Line Project (para 4.5.49).
x. For the mitigation and compensation proposed to be secure detailed measures for the physical management and maintenance of the wetlands and landscape are required. The Report lacks detail regarding such management and implementation. There is, for example, no provision for access to manage the area under the Viaduct. There is no provision as to how the hydrology (water level, water flow) of the compensation areas will be maintained and managed. There are design suggestions, such as to a system of pumps from ground water and weirs, but who physically is to manage and maintain this, over what period and with what manpower support and who is to secure the co-operation and involvement of local farmers and how they are to do so is not addressed. It is submitted that much of the information in the design proposals for the recreated marsh habitats under the viaduct and meanders (para 4.7.81 to 4.7.98) consists of a “wish list” of recommendations with no reassurance of implementation. The effect of this is that para 6.7 of Annex 20 of the Technical Memorandum has not been complied with:
“Does the report list out clearly what
mitigation measures would be implemented, by whom, where and to what
requirements?”
(b) Mitigation
and Compensation - No Provision For Long Term Management And Financial
Sustainability
The following applies to both Long Valley and the Lok Ma Chau compensation areas.
i. There are no details of the commercial, Government or non-profit organisation, which would manage the Long Valley and the Lok Ma Chau fishpond wetland mitigation and compensation areas. The only reference is generally and vaguely to a wetland management organisation There is apparently therefore no organisation or entity presently in existence and properly constituted which has agreed to undertake their management, let alone agreed to do so for the long term.
ii. There is no provision for the financing of the management of the areas; no sum of money, fund or Trust is provided for.
iii. If it is expected that the HKSAR Government will take up the responsibility of long-term maintenance and management there is no confirmation that Government has agreed to do so and has committed resources. Assurance needs to be provided that sufficient resources will be available to maintain and manage the wetlands in perpetuity.
iv. The following section of the Executive Summary, which appeared on the EPD Website, was deleted from the hard copy of the Report, which was provided for public consultation.
“Responsibility for the long term
management of the ecological habitat compensation areas will be handed over to
the HKSAR Wetland Trust that is in the process of being established. KCRC will
make a lump sum donation to the Wetland Trust, which the Trustees will invest
to cover the recurrent costs of the wetland management.”
There appears, therefore to have been some, limited, recognition of the need for finance to manage the proposed sites but even this limited provision this has apparently been withdrawn and no provision at all is now made.
Without provision for
finance, a managing body or a plan for the ongoing physical management of the
areas there is no guarantee of the long term sustainability and security of the
mitigation and compensation areas.
If there is no guarantee of the long-term
sustainability of the mitigation and compensation measures, this the same as
providing no mitigation or compensation at all.
This means that paragraph 6.7 of Annex 20 of the Technical Memorandum has not been fulfilled:
“Is
the responsibility for implementing the recommended mitigation measures clearly
defined?”
12. CONSERVATION
AREA AND NATURE RESERVE
The conclusion which logically and
properly follows from the evidence contained in the EIA Report is not that the
Spur Line should be built, but that Long Valley should be conserved and protected.
WWF and HKBWS have applied to the Town Planning Board for the zoning of the whole of Long Valley as a Conservation Area on the grounds, and based on very much the same evidence to that contained in the EIA Report, that it is of unique conservation value, having significant ecological and landscape quality and that its existing natural features and rural use should be protected.
As the area is developed, if not protected, Long
Valley will rapidly become vulnerable to private development, speculation and
applications for change of use to residential zoning.
The Long Valley freshwater wetland habitat is crucially different from the brackish or saltwater wetland at Mai Po Nature Reserve. The EIA Report and this submission set out the diversity of bird and other species which the Long Valley habitats support. As the last remaining such area in the SAR, Long Valley’s importance is comparable to that of the Mai Po Nature Reserve.
This type of habitat is not protected by the Country Parks system. Village lands tend not to be included within in the boundaries of the Country Parks. As a result freshwater wetland, Feng Shui woods and lowland habitat generally is poorly represented.
The educational value of the site lies in its potential as a place to provide students, the population generally and foreign visitors with an appreciation of Hong Kong’s natural, ecological and agricultural heritage, specific to the type of habitats involved. If conserved and properly managed, the area could be of as great an educational and heritage value as is Mai Po Nature Reserve.
The Planning and Development Study
on the North East New Territories: Consultation Digest (1999) states that one
of the Basic Criteria used for the Selection of the new development area of Kwu
Tung is the:
Protection
of high quality environmental, ecological and landscape resources
It states that one of the planning principles adopted is:
To make the most of
existing natural resources by retaining landscape features and viewcorridors of
ridgelines.
It states one that of the key features is to be the integration with existing developments, in particular:
Existing villages
including Ho Sheung Heung, Yin Kong and cultural heritage sites will be
retained.
Fung Shui woodlands, notably
the one behind Ho Sheung Heung and that at Chau Tau will be preserved as Green
Belt.
Thus the availability to the new
towns of the Long Valley Nature Reserve would assist in fulfilling the overall
goal of the NENT Study to establish towns with a high quality living
environment.
CONCLUSION
Paragraph 4.5 of the Technical Memorandum provides that after public
consultation and consultation with the Advisory Council on the Environment, the
EIA Report shall be approved if:
(a)
“the requirements in the EIA Study brief have been met; and
(d)
all relevant environmental principles and criteria laid
down in this technical memorandum can be
met and the residual environmental impacts are within the relevant criteria, unless with sound
environmental justifications and without long term serious environmental
implications.”
It is submitted that for the detailed reasons set out in this paper
such requirements have not been met and, indeed, the Report falls very far
short of doing so. Accordingly, we submit, approval should not be given to the
project. We should be grateful to receive your written response.
Yours faithfully,
For and on behalf of the Hong Kong Birdwatching Society
Michael Kilburn
Conservation Officer, Conservation Committee
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Mr Peter Wong Hong-yuen, JP Chairman Advisory Council on the Environment, c/o ACE Secretariant 10/F Citibank Tower 3 Garden Road Central Hong Kong By
Hand |
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Ms Cora So ACE Secretariat Advisory Council on the Environment 10/F Citibank Tower 3 Garden Road Central Hong Kong By
Hand |
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Professor K.C. Lam, Chairman, EIA Subcommittee,
Advisory Council on the
Environment
Department of Geography The Chinese University of Hong Kong Shatin, New Territories Hong Kong |
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Ramsar International Rue Mauverney CH-1196 Gland Switzerland |
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Mr Bao Daming Department Division Chief Wetlands
Conservation Department of Wildlife & Plant
Conservation Ramsar Convention Implementing Office State Forestry Administration 18 Hepingli Dongjie Beijing 100714 Peoples Republic of China |
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Birdlife International Forest Investory and Planning Institute Protected Areas Network Project Vien Dieu Tra Qui Hoach Rung Thanh Tri Hanoi Vietnam |
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Wetlands International
– Asia Pacific 3A 39, Block A, Kelana Centre Point SS7/19 Petaling Jaya 47301 Selangor Malaysia |