Alberta Streamlines Regulatory Process For Wetland Replacement Works – Environment

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:

1. a storage capacity less than or equal to 6,250 cubic
   metres;




2. 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;




3. a maximum depth of water of 2 metres; and




4. 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

1. a catchment area less than or equal to 300 hectares in size;
   and




2. 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.

Footnotes

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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