Canada: Regional Plan Gives Teeth To Cumulative Effects Management In Oil Sands

Last Updated: August 31 2012

Article by Dufferin Harper, Katie Slipp and Heather Richardson (Student-at-law)

On August 22, 2012, the Alberta government released its long-awaited land-use plan for the Lower Athabasca Region of the province. The Lower Athabasca Regional Plan (LARP) comes into force on September 1, 2012 and represents a novel and legally binding approach to cumulative effects management in the region that is home to the vast majority of Alberta's oil sands resources.

The LARP

Under the Alberta Land Stewardship Act (ALSA), the province is divided into seven regions, each of which will be subject to a region-specific land-use plan. The Lower Athabasca Region is the first region for which a regional plan has been released. The prioritization of this region reflects the importance of the oil sands to Alberta's economic growth and the government's willingness to deal with the environmental and social criticisms that are often levied against operations in this region.

Our April 2011 Blakes Bulletin on the draft regional plan for the Lower Athabasca Region can be accessed here. The draft LARP has been the subject of extensive consultation and development. While some of the details have changed, the substantive elements of the finalized LARP do not depart significantly from the draft regional plan.

In particular, the LARP is predicated upon seven strategies:

  • improve integration of industrial activities in the region, for example, forest/timber management;
  • encourage timely reclamation of disturbed lands through a progressive reclamation strategy;
  • manage air, water and biodiversity through specific management frameworks (discussed in detail below) that include triggers and limits that, if exceeded, will prompt a variety of management responses;
  • create new conservation areas, covering 16% of the region's land base;
  • strengthen physical and social infrastructure planning;
  • develop and design provincial recreation areas and public land areas; and
  • involve Aboriginal Peoples in land-use planning.

The LARP and its associated management frameworks are legally binding on the Crown, decision-makers, local government bodies and any other person unless otherwise stated.

Management Frameworks – Air, Water and Biodiversity

Management frameworks specific to individual environmental components have been released or contemplated for development as part of the LARP and supplement (but do not replace) existing legislation.

The management frameworks contemplated under the LARP are in various stages of development. The Air Quality Management Framework and the Surface Water Quality Management Framework have been approved for implementation. The approach in the Groundwater Management Framework has been approved, but the triggers and limits are yet to be developed. The Surface Water Quantity Management Framework and the Biodiversity Management Framework are approved for development, but not yet published and require the development of limits and triggers.

The management frameworks for air quality, surface water quality and groundwater come into force on September 1, 2012.

Air Quality Management Framework

The Air Quality Management Framework (AQMF) for the Lower Athabasca Region sets ambient air quality triggers and limits for nitrogen dioxide (NO2) and sulphur dioxide (SO2), based on Alberta's Ambient Air Quality Objectives (AAAQOs).

Under the AQMF, tiers of air quality triggers are set using both annual and hourly data. If a trigger is exceeded, management responses and actions may include additional approval conditions or restrictions, emission caps, and restrictions on further emission sources and, ultimately, environmental protection orders. Actions will become more stringent as ambient air quality levels increase in order to prevent the exceedance of limits.

As part of the framework, emitters may be required to participate in airshed groups and regional initiatives for ambient air monitoring, provide emissions data to Alberta Environment and Sustainable Resource Development (as required) and report on the progress of implementation of management actions (as required).

Surface Water Quality Management Framework

The Surface Water Quality Management Framework (SWQMF) for the Lower Athabasca Region is focussed on the Lower Athabasca River downstream of the Grand Rapids to the Athabasca River Delta. This Framework identifies surface water quality triggers and limits for numerous indicators and establishes monitoring, evaluation and reporting processes. If a trigger is exceeded, management responses may include wastewater loading restrictions and amendments to existing approvals.

As part of the framework, parties potentially contributing to an exceedance may be required to participate in regional monitoring, provide wastewater characterization and release information (as requested), implement reductions, and report on the progress of implementation of management actions (as required).

Groundwater Management Framework

The Groundwater Management Framework (GMF) for the Lower Athabasca Region establishes interim non-saline groundwater quality triggers for the North Athabasca Oil Sands Area, the South Athabasca Oil Sands Area, and the Cold Lake–Beaver River Area. The framework directs in situ operators to those groundwater quantity limits set in the Water Conservation and Allocation Guideline for Oilfield Injection. Management responses are not mandatory until final triggers and limits have been established.

As part of the GMF, facility operators will be required to prepare and submit groundwater management plans, which will be used to set site-specific and regional groundwater triggers and limits. This requirement extends to existing facilities on notice by Alberta Environment and Sustainable Resource Development.

Key Impacts of LARP

Two main types of impacts will or could result from the LARP:

  • operator-specific impacts; and
  • broad-based impacts resulting from the introduction of binding cumulative effects management requirements.

First, we note that the establishment of conservation areas may impact specific oil sands licence holders in the region and could result in the cancellation of up to 19 Crown oil sands leases. To the extent that this occurs, the provincial government will be liable for compensation and fees to be established through negotiations between the government and licence holders.

In our view, however, the most important impact of the LARP is the introduction of cumulative effects management in the province. This is a sea change that will impact both existing and future oil sands operations in the region (and, by extension, pipeline operations that transport bitumen from the region) and the way that the regulatory and environmental approvals processes are conducted. Key impacts of the introduction of binding cumulative effects management are as follows:

  • Impacts on Existing Operations: Operators of existing operations must be aware of the possibility that as part of the management responses available, ongoing operations may be restricted. While the Director already has the ability to modify approval terms on his or her own initiative, the LARP puts a new focus on this tool. It is important to recognize that restriction of operations is contemplated not only in the case of exceedences, but also to allow for new emissions sources.
  • Impacts on Future Operations: Applicants for natural resource development projects in the Lower Athabasca Region must now place a greater focus on cumulative effects. Meeting cumulative effects standards could become more difficult as more industrial operations are approved and constructed. As industrial growth in the Lower Athabasca Region continues, operators may have to become increasingly innovative to meet LARP triggers and limits.
  • Changes to Existing Regulatory Instruments and Policies: To the extent that they are inconsistent with the LARP, existing policies and instruments must be revised. Local government bodies must be in compliance with the LARP within five years, while other decision-makers must be in compliance within two years.

The cumulative effects management requirements brought about by the LARP are likely to result in more onerous environmental constraints and more stringent operating parameters which will encourage environmentally and socially responsible oil sands development. In particular, licensees must be aware that operations will no longer be assessed in isolation and that operational impacts on regional limits and triggers are a paramount consideration.

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.

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