By Sean Parker and Kyle Trolley, Student-at-Law
Effective as of December 23, 2020, the Water
(Ministerial) Regulation, AR 205/98 (the “Regulation”) has been amended and
now references a new Code of Practice for Wetland Replacement Works (the “COP”),
developed by Alberta Environment and Parks (“AEP”). The COP is a red tape
reduction measure implemented by AEP. It is intended to streamline the
regulatory process for proponents seeking to restore or construct wetlands. The COP replaces requirements previously
under the Water Act, RSA 2000, c W-3 (the “Water Act”) to obtain
an “approval” with a less onerous notice process for activities that meet the requirements
set out in the COP.[1]
The idea is to eliminate wait times for
proponents seeking to restore or construct wetlands. Under the new scheme, 14 days’ notice must be
given prior to commencing a wetland replacement activity; proponents will no
longer have to wait for the regulator to issue an approval under the Water
Act.
In 2019, AEP began the design and
development of its Wetland Replacement Program (the “WRP”). The WRP aimed to “re-establish
wetlands in partnership with Albertans by providing resources for collaborative
replacement projects across the province.”[2] To date, the program has funded seven projects across the province
equating to $3.7 million, and resulted in the restoration and or construction
of 158.23 hectares of wetland.[3]
By implementing changes through the
Regulation and the COP, AEP is intending to “increase participation in
conservation offset programs, accelerate the addition of wetlands on the
landscape, and to stimulate Alberta’s economy by creating the right regulatory
and economic conditions for wetland replacement proponents.”[4]
The Regulation states that the placing,
constructing, operating, installing, maintaining, removing or disturbing of
wetland replacement works, as defined by the COP, are designated activities
that do not require approval so long as they are commenced, continued, and
carried out in accordance with the COP.[5]
The COP defines wetland replacement works
as “any structure or technique used for wetland construction or wetland
restoration.”[6] Wetland replacement works include a structure, contouring, erosion
and sediment control, soil amendments, vegetation amendments, decommissioning
of subsurface drainage works, or drilling and reclaiming a borehole in a
wetland replacement area.[7]
“Wetland construction” is defined in the
COP as “the manipulation of the physical, chemical, biological or hydrological
characteristics of a site with the goal of creating a wetland replacement area
at a location that was non-wetland.”[8] The wetland replacement area
must also have:
i.
a storage capacity less than or
equal to 6,250 cubic metres;
ii.
an average depth of water,
being the ratio of the volume of a wetland to the surface area of the wetland
at design full capacity, of at least 10 centimetres but no more than 60
centimetres under normal hydrologic conditions;
iii.
a maximum depth of water of 2
metres; and
iv.
a 1:100 year flood magnitude of
less than or equal to 1.5 cubic metres per second at an outlet.[9]
“Wetland restoration” is defined in the
COP as “any manipulation of the physical, chemical, biological or hydrological
characteristics of a wetland, that has been partially or completely lost by
drainage, infilling or other forms of degradation or impairment, with the goal
of re-establishing the pre-disturbance area, natural drainage pattern,
hydrology and natural processes.”[10] Wetland restoration only applies to wetlands which have
i.
a catchment area less than or
equal to 300 hectares in size; and
ii.
a 1:100 year flood magnitude of
less than or equal to 1.5 cubic metres per second at an outlet.[11]
With no requirement for a formal
approval, once notice is given of a wetland construction or restoration project
captured under the COP, work can begin. However, any activity related to
wetland replacement works that is beyond the scope of the COP will still
require approval pursuant to the Water Act.
The new COP for wetland replacement and
construction adds to the roster of codes implemented by AEP. These codes streamline the regulatory process
for activities considered to have a low potential for adversely affecting the
environment. If successful, the new COP will speed up the process for
proponents, and also allow AEP personnel to focus on other matters that have
the potential for greater environmental impacts.
For information on how the new COP for
wetland replacement and construction may impact your business or operation,
please contact Sean Parker in Edmonton, Michael Barbero in Calgary or another
member of our Energy, Environmental and Regulatory practice group.
[1] Government of Alberta, “New Water Act Code of Practice for Wetland
Replacement Works”, January 2021, https://aia.in1touch.org/document/5734/External_Notice_COP_Wetland_Replacement_Works.pdf,
(”GOA Fact Sheet”).
[2] Alberta Environment and Parks, “AEP’s Wetlands Replacement Program
restores nearly 160 hectare of wetland in Alberta”, January 23, 2021, https://albertaep.wordpress.com/,
(“AEP Program”)
[3] AEP Program.
[4] GOA Fact Sheet.
[5] Section 3(9), Water (Ministerial) Regulation, AR 205/98, (the
“Regulation”).
[6] Section 1(2)(nn), Code of Practice for Wetland Replacement Works,
(“COP”).
[7] Section 1(2)(nn), COP.
[8] Section 1(2)(kk), COP
[9] Section 1(2)(kk), COP.
[10] Section 1(2)(oo), COP.
[11] Section 1(2)(oo), COP.
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