Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, April 2011
On Tuesday, April 5, 2011, the Government of Alberta released its long-awaited draft Lower Athabasca Regional Plan (LARP) together with draft regulations and management frameworks for the establishment of specific air emissions, surface water quality and groundwater conditions within the Lower Athabasca Region.
This article provides a brief overview of the role of a regional plan and then discusses the specifics of the draft LARP and associated documentation, particularly as they pertain to environmental issues.
What is a Regional Plan and Why is it Important?
In October 2009, the Alberta Land Stewardship Act (LSA) was proclaimed. The LSA notionally divides Alberta into seven regions and establishes the legal basis for the development of plans for each region. Regional plans enable the province to address issues that are specific to a particular area. Under the LSA, regional plans are legislative instruments akin to regulations. Each regional plan must include a vision as well as one or more objectives that are specific to that region. Regional plans are binding on the Crown, including government agencies, departments, boards, etc., and all other persons. As a result, all persons operating within a region in which a plan has been adopted need to pay close attention to the contents of the plan.
The adoption of regional plans represents a shift by Alberta towards a cumulative effects management system approach. This shift is being made in an effort to balance economic development opportunities with social and environmental considerations for different regions. A cumulative effects management system approach involves setting outcomes and objectives along with determining strategies and actions necessary to achieve the outcomes. It also requires integrated monitoring, evaluation and reporting systems.
Due to the notoriety associated with the development of the oil sands, the government made a conscious decision to ensure that the regional plan affecting the majority of the oil sands was the first plan to be developed. That stated, it has been a long time coming. Alberta initially released the terms of reference for developing the LARP in July 2009 (Terms of Reference). This was followed in August 2010 by advice from the Regional Advisory Council (RAC) for the Lower Athabasca Region (RAC Advice). The release of the draft LARP is the latest progression towards the adoption of a final LARP.
What does the draft LARP encompass?
Highlights of the draft LARP include the following:
- Existing conservation areas will increase from 6% of the region's land base to 22%, representing a total of approximately 20,000 sq. km or two million hectares.
- Ten new recreation areas will be designated that will encompass approximately 2% of the region's land base representing a total of approximately 1,860 sq. km or 186,000 hectares. Note: Although the draft LARP states that the 10 new recreation areas will be designated, the draft regulations state that the "recreation areas may be established by the government as budgets and resources permit" (emphasis ours). It is therefore unclear at this time how definite the 10 new recreation areas actually are.
- Existing oil sands and mining agreements within the proposed conservation areas or recreation areas will be rescinded and existing leaseholders will be compensated in accordance with existing legislation.
- Existing conventional petroleum and natural gas agreements and recreation leases within the proposed conservation areas or recreation areas will not be rescinded.
- Some conservation areas may allow for a limited level of disturbance-based vegetation management (i.e., logging, prescribed fires).
- The Air Quality Management Framework, which framework sets regional one-hour (averaged annually) and annual, triggers and limits for NO2 and SO2 air emissions, will be implemented.
- The Surface Water Quality Management Framework, which framework sets regional annual triggers and limits for 39 different surface water quality constituents, will be implemented.
- The Groundwater Management Framework, which framework sets sub-regional interim triggers for 13 different groundwater constituents, will be implemented.
- The proposed development of the following:
- Biodiversity Management Framework by 2013
- Land Disturbance Plan by 2013
- Tailings Management Framework by 2012
- Progressive Reclamation Strategy
- Updated Surface Water Quantity Management Framework
- No reference to land use offsets or stewardship units, which are referred to in the LSA.
- No reference to any restriction on development of more than 15% of the region's land base at any one time as recommended by the RAC in the RAC Advice.
- No CO2 air emissions management plan as recommended by the RAC in the RAC Advice.
- Limited guidance on either surface water or groundwater quantity withdrawals.
What are Environmental Management Frameworks and What do they Include?
As noted above, the draft LARP references various existing and proposed management frameworks. Management frameworks are designed to maintain flexibility and to proactively manage cumulative effects within a region. They are intended to guide resource development, regulatory processes and facilitate sustainable resource management. The various frameworks are predicated upon the use of triggers and limits. As a substance in question is found within a region in increasing concentrations or amounts, that substance can exceed various trigger levels. Exceedance of each increased trigger level results in an increased response from Alberta Environment. The maximum allowable level for a particular substance is referred to as a limit, rather than a trigger. Exceedance of the maximum allowable limit will result in mandatory action by Alberta Environment to ensure that the exceedance is rectified. Mandatory action could include Alberta Environment restricting further emission sources, imposing emission caps on existing emission sources or imposing emission reduction requirements on existing emission sources (i.e., exceedance of a trigger or limit could result in Alberta Environment restricting or prohibiting the continued operation by oil sands operators even if those operators were individually in compliance with their respective approvals and permits). Enforcement could also include the issuance of an environmental order or fine.
Management frameworks are not stagnant. Rather, the triggers and limits are anticipated to change over time and persons operating within a region need to ensure they stay apprised of the most recent version of the applicable framework. Furthermore, the triggers and limits set out in the various Frameworks are in addition to and do not replace the specific and individual approvals issued to industrial operators and the regulatory compliance regime that presently exists in Alberta. Alberta Environment will continue to monitor each operator for specific exceedances and in the event that a specific exceedance occurs, it will address the situation through the use of existing regulatory compliance mechanisms.
Due to their impact on operators, especially oil sands operators, within the Lower Athabasca Region, the specifics of the management frameworks that have been released to date bear some scrutiny.
Air Quality Management Framework
The Air Quality Management Framework for the Lower Athabasca Region sets out ambient air quality triggers and limits for NO2 and SO2. The air quality triggers and limits are based on either one hour (averaged over one year) or annual exceedances. Air quality monitoring will occur throughout the Lower Athabasca Region and will be undertaken by the Wood Buffalo Environmental Association and the Lakeland Industry and Community Association, with the data supplied to Alberta Environment on an annual basis. Alberta Environment will then be responsible for analyzing the data and determining if any of the triggers or limits have been exceeded.
Surface Water Quality Management Framework
The Surface Water Quality Management Framework for the Lower Athabasca Region focuses on the lower section of the Athabasca River, downstream of the Grand Rapids to the Athabasca River Delta. It is currently specific to only one sampling point, namely the Alberta Environment monitoring station located at the Old Fort and sets out water quality triggers and certain limits for 39 water quality indicators (11 general indicators and 28 metal indicators). (Note: The frame-work contemplates the addition of a second monitoring station upstream of the Firebag River within the near future.)
Groundwater Management Framework
The Groundwater Management Framework for the Lower Athabasca Region divides the region into three non-saline groundwater sub-regions. These sub-regions are: the North Athabasca oil sands area; the South Athabasca oil sands area; and the Cold Lake–Beaver River area. Unlike the Air Quality and Surface Water Quality Management Frameworks, the Groundwater Management Framework contains interim water quality triggers for various water quality indicators for each sub-region rather than final triggers or limits. The use of interim triggers is due in part to the natural range of variability that different indicators exhibit as well as the fact that the groundwater chemistry within all of the sub-regions is still poorly understood.
The Groundwater Management Framework refers to the development of a comprehensive Regional Groundwater Monitoring Network. The Network will involve wells that are representative of regional water quality rather than specific compliance wells located on industrial sites. The Network will be used to provide baseline data as well as to gain insight into aquifer interactions and long-term water quantity and quality trends. As more data is obtained, sub-regional triggers and limits will eventually be established.
What does it all Mean?
Operators currently operating within the Lower Athabasca Region, as well as those contemplating the future start-up of operations, must continue to ensure that they remain in compliance with all operating approvals that are specific to their operations. However, operators need to be aware that their operations also have an overall cumulative impact on the region. The advent of the LARP is recognition of that fact. The release of the draft LARP and its reliance on regional air, surface water and groundwater triggers and limits imposes additional constraints on operators that are geared towards ensuring that the cumulative effects of all operations in a region are managed appropriately. Although some may argue that the rules have changed, the increased focus on cumulative effects appears to be nothing more than a reflection of reality (i.e., one person's operations do not occur in isolation to the operations of another person). With the increased international focus on the environmental effects associated with oil sands development, including the recent comments and concerns expressed by U.S. President Obama, compliance with both specific operational approvals as well as regional air, surface water and groundwater cumulative limits, has to be seen as a positive step.
The draft LARP and associated documents are open for public comment until June 6, 2011. In addition, the government is hosting a variety of public sessions throughout the province between April 18 and May 19 to enable persons to state their views. Since it is expected that the draft LARP will be modified prior to being enacted in its final form, now is the time for everyone operating within the region to express their views on both the contents of the LARP as well as the triggers and limits set out in the frameworks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.