WHEREAS Alberta continues to experience tremendous growth and a robust economy that creates significant construction activity requiring borrow sites; and

WHEREAS Alberta Environment has made amendments to the Water Act, Schedule 1 of the Water (Ministerial) Regulation, requiring approvals for all borrow pits over 2500 cubic meters; and

WHEREAS this legislation appears to have been intended for areas of restricted water allocation; and

WHEREAS this modified approval system was not publicized sufficiently to receive feedback from affected stakeholders; and

WHEREAS the required approvals are resulting in delays on many projects requiring borrow pits, and the term “borrow pit” can mean any excavation; and

WHEREAS an alternate system such as “Code of Practice Guidelines”, “Best Management Practice”, “Temporary Field Authorizations” or comprehensive education campaigns would likely be more effective and efficient;

THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties urge the Government of Alberta to change “Schedule 1 of the Water (Ministerial) Regulation” to eliminate the requirement for formal approvals on all borrow pits and consider alternate strategies for protecting water resources.

Since October 2006 Alberta Environment has advised that it is now a requirement of the Department that all borrow sites over 2500 cubic meters must receive a “Water Act” approval.  This regulatory change appears to have been done with little or no consultation.  It also appears that the legislation is being implemented selectively.

The modified legislation that pertains to borrow pits is in Schedule 1 of the Water (Ministerial) Regulation.  The regulation can be found at the following link:   http://www.qp.gov.ab.ca/Documents/REGS/1998_205.CFM

To date, the process appears cumbersome and unnecessary, especially for Northern Alberta.  Presently road construction and other jobs are being delayed significantly simply due to borrow requirements.  Municipalities have been advised that 2-3 months lead time is desirable to obtain an approval.

In many instances “last minute” negotiations on jobs are required and this may result in adjustments to borrow locations.  It is difficult to wait for approvals or amendments once a job is in progress.  Jobs affected could include any project requiring borrow pit materials anywhere.  Landscape borrows are exempt.  There does not appear to be many instances where an approval of this type would have been beneficial, other than in locations where water allocations are restricted or limited.

Increased approval requirements need to have a reasonable cost/benefits return and this particular process does not seem to meet those criteria.  Borrow sites are essential to many construction projects and are subject to field adjustments due to material types, water table and land owner requirements.  Best practices are already followed and ECO plans are developed for most jobs in addition to meeting requirements of DFO, SRD and other required authorities and pieces of legislation.

It is understood that water resources must be protected for the long term benefit of all Albertans.  However, a better approach in this circumstance may be to adopt a “Code of Practice” or “Best Practices Manual” that could be followed.  An education campaign could be established to inform private companies, municipalities and all citizens on the appropriate placement of borrow sites.  This would achieve the same goal without generating hundreds of approvals for relatively innocuous developments.

Another approach to consider may be to provide pre-approved, blanket authorizations for a particular job, if there are not any sensitive water resource issues in an area.  An “As Constructed” plan could subsequently be submitted to finalize the water management regime.  This would minimize Department of Environment time while protecting the integrity of watersheds.  A final alternate solution would be to set up a disposition similar to SRD’s Temporary Field Authorization (TFA), or something similar, so that the turnaround on applications can be responsive and timely.

With so many private unauthorized activities occurring in many jurisdictions, all that this additional regulation is likely going to achieve is to compel other government departments, municipal governments, and responsible companies to expend time and resources on something that has limited environmental benefit.  There is great potential that those causing water management problems will not comply with the new approval requirements.  Enforcement time would have to rise dramatically.  In areas where there are serious water license issues, such as Southern Alberta, this particular stipulation may have more relevance.  However, in most areas of the Province where water needs are typically adequate and not impacted significantly by dugout withdrawals, this is simply adding one more obstacle and an additional financial burden to the cost of infrastructure development.

SCHEDULE 1

Certain activities are exempt from needing an approval EXCEPT “dugouts” greater than 2500 cubic metres. The term “dugout” is not defined in the legislation, but has been taken to mean almost any excavation.  The term dugout commonly refers to an excavation or pit that is used as a source of water after construction.  A borrow pit or other excavation can certainly be used as a source of water, as will likely be the case with these pits. Our approval is for the construction of the pit.  A licence may be required for the use of the water that the pit holds.

Schedule 1:
Activities that are Exempt from the Requirement for an Approval
1(1) In section 2(c), “crossing” includes but is not limited to a watercourse crossing, bridge crossing, culvert crossing or ford, but does not include an ice or snow bridge, pipeline crossing or telecommunication line crossing.
(2) Despite subsection (1), the only bridge crossing included in “crossing” is a single span bridge.
2 The following activities are exempt from the requirement for an approval:
(a) placing, constructing, installing, maintaining, replacing or removing a floating platform or a portable or seasonal pier, boat launch or dock in or adjacent to a water body;
(b) placing, constructing, installing, maintaining, replacing or removing a fence in or adjacent to a water body;
(c) placing, constructing, installing, maintaining, replacing or removing a crossing in a water body where
(i) the water body is not frequented by fish,
(ii) the hydraulic, hydrologic or hydrogeological characteristics of the water body are not altered at flood events below the one in 25 year flood event,
(iii) the size of the culvert used in constructing the crossing, if applicable, is 1.5 metres or less in diameter,
(iv) there is no diversion of water from the water body, and
(v) the installation of the crossing is not part of a causeway through a lake, slough, wetland or other similar water body;
(d) landscaping except where
(i) it is in or adjacent to a watercourse frequented by fish or in a lake or a wetland, or
(ii) it changes the flow or volume of water on an adjacent parcel of land or adversely affects an aquatic environment;
(e) installing a water supply line in, adjacent to or beneath a water body for the purpose of diverting water from the water body, if the line is installed by directional drilling or boring, and if a licence is not required for the diversion of the water;
(f) installing a portable pump or portable water supply line in or adjacent to a water body if there is not a significant alteration or disturbance of the bed or shore of the water body;
(g) removal of debris from a water body that is not frequented by fish if the person removing the debris owns or occupies the land adjacent to the water body where the debris is located;
(h) removal of a beaver dam from a water body if the person removing the beaver dam owns or occupies the land adjacent to the water body where the beaver dam is located, or has been authorized to remove the beaver dam under section 95 of the Act;
(i) drilling a water well if
(i) the person drilling the water well is the owner of
(A) the land on which the water well is to be located, and
(B) the drilling machine, and
(ii) the water from the water well is to be used solely for household purposes under section 21 of the Act;
(j) drilling or reclaiming an exploratory test hole, shot¬hole or borehole except where the drilling or reclaiming
(i) is related to groundwater exploration or for the purpose of a water well, or
(ii) is in a watercourse frequented by fish, a wet lakebed or a wetland;
(k) reclamation of a water well;
(l) placing, constructing, maintaining or filling in a dugout except where the dugout
(i) is located in a watercourse frequented by fish or in a lake or a wetland,
(ii) is located in a watercourse, lake or wetland in an area that is subject to a reservation by order of the Minister under section 35 of the Act or that is subject to a Director’s decision under section 53 of the Act,
(iii) would change the flow of water on an adjacent parcel of land,
(iv) has a capacity greater than 2500 cubic metres in volume,
(v) is located in the same watercourse and parcel of land as an existing dugout, or
(vi) is restricted by an approved water management plan;
(m) commencing, continuing or carrying out an activity that is referred to in section 3 of this Regulation;
(n) the placing, constructing, installing, maintaining or operating of works to prevent surface water from flowing through or from or both through and from, a confined feeding operation or a manure storage facility as defined in the Agricultural Operation Practices Act if
(i) the works do not significantly alter the volume, quality or rate of water flowing to each location where water naturally discharges from the area covered by the confined feeding operation or the manure storage facility,
(ii) the works do not alter or affect any non¬flowing water body,
(iii) the works are not located on a fish¬bearing water body, as determined from maps described in the Code of Practice for Watercourse Crossings adopted in section 3(2) of this Regulation,
(iv) the works are governed and regulated by an approval or registration with respect to a confined feeding operation or an authorization with respect to a manure storage facility, under Part 2 of the Agricultural Operation Practices Act,
(v) a professional engineer designs and develops plans for the works, stamps and signs the plans, certifies that the plan design meets the requirements of this clause and provides the owner with a copy of the plans and certification, and
(vi) the owner retains a copy of the engineer’s plans and certification;
(o) commencing, continuing or conducting exploration for groundwater for the purpose of obtaining information in support of an application for a licence under the Act.

Resolution 10-07F identifies another area where construction can be hampered by current legislation in the Water Act. The resolution urges the Province of Alberta to exempt municipalities under the Water Act/Provincial Wetland Restoration/Compensation Guide for constructing rural roads through small sloughs/wetlands where the loss of the slough/wetland is less than 1 hectare in size.

Based on these concerns, the AAMDC is actively involved in the Alberta Water Council.  President Don Johnson and Director Dwight Oliver have represented the Association over the past year as concerns regarding the Water Act are addressed through that organization.  Recently, the AAMDC Board provided its support for the Proposed Wetland Policy after concerns were communicated to Alberta Environment staff and the Alberta Water Council.

Transportation: Alberta Transportation is working with Alberta Environment to address this issue and possibly amend this requirement.

Environment:
The Municipal District of Greenview No. 16, a sponsor of resolution 19-08F, believes amendments to the Water (Ministerial) Regulation in 2007 resulted in borrow pits greater than 2,200 cubic metres requiring an approval under the Water Act.  Changes to the regulation were not intended to increase regulatory control over dugouts or, in some cases, borrow pits that are built during road construction activities.  However, the regulation as currently written appears to increase regulatory control.
Alberta Environment will provide clarity to staff on the applicability of the regulation requirement, particularly as it relates to borrow pits.

In responding to this resolution, Alberta Environment noted that the changes to the regulation were not intended to increase regulatory control over dugouts or, in some cases, borrow pits that are built during road construction.  The department acknowledged, however, that as it is currently written, the regulation appears to increase regulatory control. To follow up, Alberta Environment committed to providing clarity to staff on the applicability of the regulation requirement, particularly as it relates to borrow pits.  The AAMDC was advised in March 2010 that an accepted practices document on borrow pits is being prepared by the Government of Alberta, and will be shared with municipalities once finalized. In April 2011, the AAMDC was informed that a dugout fact sheet is now available online at http://environment.alberta.ca/documents/Dugouts_FS_final__20071015.pdf.