Alberta Streamlines Regulatory Process for Wetland Replacement Works

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.