Energy Law Bulletin: The Lower Athabasca Regional Plan and the Management of Cumulative Effects
The Lower Athabasca Regional Plan (“LARP”) came into effect on September 1, 2012 and is the first of seven regional plans to be released under the Alberta Land Stewardship Act. The LARP establishes the new cumulative effects approach to be used in the Lower Athabasca region and provides valuable insight as to how Alberta’s oil sands resources will be managed in the decades to come.
Cumulative Effects Management
In 2008, Alberta committed to manage the cumulative effects of development on air, water, land and biodiversity at the regional level. The development of regional plans for each of Alberta’s seven watersheds is the first step towards this goal.
For the Lower Athabasca region, the LARP affirms Alberta’s commitment to optimize the economic potential of the oil sands resource while recognizing that the cumulative effects of population growth and economic development in the region is increasing pressures on the region’s air, water, land and biodiversity. To address these concerns, the LARP expressly adopts a cumulative effects management approach.
The cumulative effects management approach set out in the LARP focuses on achievement of outcomes, understanding the effects of multiple development pressures (existing and new), assessment of risk, collaborative work with shared responsibility and improved integration of economic, environmental and social considerations. Integrated monitoring, evaluation and reporting systems are essential as they are used to assess achievement of outcomes and objectives.
The cumulative effects management approach outlined in the LARP is based on the use of management frameworks. Management frameworks for air quality, surface water quality and groundwater quality and quantity have been developed. These frameworks are intended to provide context within which decisions about future activities and management of existing activities should occur. The frameworks do this by confirming regional objectives and establishing environmental thresholds described as “limits” and “triggers”. “Limits” are intended to be clear boundaries not to be exceeded. “Triggers” are described as warning signals to allow for further evaluation and adjustment on an ongoing basis.
Frameworks approved for implementation include:
Air Quality Management Framework for the Lower Athabasca Region; and
Surface Water Quality Management Framework for the Lower Athabasca Region
The air quality and surface water quality limits and triggers set out in these two management frameworks are based on existing Alberta ambient air and water quality objectives. Substances of concern are to be monitored in accordance with their respective frameworks. In the event ambient conditions exceed a trigger level at a specified monitoring location, the need for action will be assessed. This proactive approach is intended to help ensure that regional limits are not exceeded and the environment remains healthy.
The approach for the Groundwater Management Framework for the Lower Athabasca Region has been approved with triggers and limits yet to be developed. The groundwater management framework includes interim triggers for regional groundwater quality and describes the process that will be used to develop final triggers and limits.
Two more frameworks have been approved but not yet developed:
Surface Water Quantity Management Framework for the Lower Athabasca River (to be updated); and
Biodiversity Management Framework for the Lower Athabasca Region.
In 2009, Alberta and Canada started working together to build a new integrated environmental monitoring system to support Alberta’s transition to a cumulative management approach. In 2012, a Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring was developed. The Joint Implementation Plan builds on the existing monitoring in the area and is intended to enhance monitoring activities. Under the LARP, monitoring will now take place against the specific limits and triggers set out in the attached schedule for each management framework.
Management of Environmental Thresholds
The Minister responsible for the Environmental Protection and Enhancement Act is the Designated Minister under the LARP and has full powers to manage the limits and triggers. The Designated Minister may determine measurements of substances of concern at monitoring stations, and whether a limit or a trigger has been exceeded. Determinations as to whether a limit or trigger has been exceeded are final and binding on the Crown, decision-makers, local government bodies and all other persons.
In the event of an exceedance of one or more limits, the Designated Minister must issue a notice to all affected decision-makers and local governments describing the activity or activities, or types of activities that, in the opinion of the Designated Minister, are reasonably expected to have a direct or indirect effect on the relevant limit(s). The notice must specify the action to be taken by the affected decision-makers and local government bodies and that no further approvals in respect of the specified activity shall be issued.
The Designated Minister must then initiate a management response consistent with the applicable management framework. Persons responsible for the exceedance are obligated to follow the directions of an official implementing the management response.
The Minister is also responsible for establishing and maintaining programs to manage effects including managing limits and triggers for substances of concern, monitoring and evaluating air, water and soil quality, and evaluating the effectiveness of the framework in meeting the specified objectives.
Caribou and Caribou Habitat
It is increasingly apparent that cumulative effects on caribou and caribou habitat are an important regional consideration. The LARP establishes six new conservation areas totaling 16.32 percent of the region. One of these areas, the Dillon River Conservation Area (located adjacent to the Cold Lake Weapons Range and the Saskatchewan border) was established specifically to secure a larger tract of important caribou habitat. These new conservation areas add to the network of other conserved land throughout the Region and are intended to create large, interconnected areas that maintain intact habitat to support biodiversity.
The new Biodiversity Management Framework will be developed by the end of 2013 and will set targets for selected biodiversity indicators (vegetation, aquatic and wildlife) and specifically address caribou habitat needs in alignment with provincial caribou policy. It is also anticipated that caribou habitat will be addressed in the regional landscape management plan, currently under development for the public lands in the Green Area. It is intended that best available practices to reduce land disturbance footprints, in combination with enforcement of land disturbance standards (such as limits and triggers), will be developed to guide proactive, early management intervention actions. The stated objective of the regional landscape management plan within LARP is to support both the economic objectives and biodiversity objectives for the region. Standards for public land will be set on a regional level such that areas important to economic development (such as oil sands) will experience higher levels of land disturbance while areas important for biodiversity (such as caribou and moose habitat, wildlife corridors and riparian areas) will experience lower levels of land disturbance. The LARP does not indicate, however, how instances where those two priorities overlap will be handled.
Implications of the LARP
With the adoption of the LARP, development in the Lower Athabasca Region has entered a new world of increased focus on cumulative effects and environmental thresholds, including increased monitoring and reporting. For the first time, development must occur within pre-determined limits and triggers, and there are significant consequences to both new and existing operations when an environmental threshold is exceeded.
This upward trajectory will only continue with the creation of additional management frameworks, and the likely adoption of new rules from decision-makers. As regulators are required to ensure compliance with the LARP prior to issuing new project approvals, developers will likely be required to include information addressing compliance with the implemented environmental management frameworks (see AUC Bulletin 2012-10 and ERCB Bulletin 2012-22, for example). Prudent project developers should begin familiarizing themselves with the new and developing management frameworks, and considering how their project plans align with the objectives now established for this region.