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WHEREAS the Government of Canada amended the Navigable Waters Protection Act to become the Navigation Protection Act in 2012 and came into force on April 1, 2014; and
WHEREAS the new Navigation Protection Act requires assessments for bridges only on a small number of scheduled waterways; and
WHEREAS the scheduled waterways located within the province of Alberta are Lake Athabasca, the Bow River, the Peace River, the Athabasca River, the North Saskatchewan River and the South Saskatchewan River; and
WHEREAS owners of existing bridges on non-scheduled waterways that were previously regulated under the Navigable Waters Protection Act are able to opt their bridges out of the Navigation Protection Act prior to April 1, 2019; and
WHEREAS all bridges constructed on non-scheduled waterways after April 1, 2014 are automatically not regulated under the new NPA, so the opt-out decision only applies to bridges that existed prior to April 1, 2014; and
WHEREAS Transport Canada has indicated that Alberta Transportation is technically the owner of all municipally-managed local road bridges in Alberta, and therefore must opt out on behalf of municipalities; and
WHEREAS Alberta Transportation has requested that the Alberta Association of Municipal Districts and Counties (AAMDC) indicate support or opposition for opting out on behalf of all members because rural municipalities are the day-to-day managers of local road bridges; and
WHEREAS Alberta Transportation has judged the legal risks of opting out as minimal compared to the regulatory freedom it would provide and has already opted out all provincially-managed bridges; and
WHEREAS Alberta Transportation has devised their own navigation standards for provincial bridges that have been opted out of the Navigation Protection Act which can be followed by municipalities if they wish; and
WHEREAS municipalities are able to apply to the federal Minister of Transportation to have an individual bridge on a non-scheduled waterway opted back into the NPA program if they are making modifications that they judge to have a high risk of impacting navigability;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties support the Government of Alberta’s request to opt all existing local road bridges built prior to April 1, 2014 out of the Navigation Protection Act;
FURTHER BE IT RESOLVED that Alberta Transportation allow ninety days from the endorsement of this resolution for municipalities not wishing to have their local road bridges opted out of the Navigation Protection Act to communicate this request to Alberta Transportation.
Overview of Navigation Protection Act
The Navigation Protection Act (NPA) came into force on April 1, 2014, replacing the previous Navigable Waters Protection Act (NWPA). The purpose of the NPA is to ensure that any works (bridges, piers, cables, etc.) constructed over water bodies in Canada do not obstruct navigation.
The former NWPA was prescriptive, and required any works over any waterway that could conceivably support travel by raft to undergo an assessment as to whether the works would impact navigation. In many cases, these stringent requirements caused an administrative burden for municipalities constructing bridges or culverts over small bodies of water with little or no navigation activity. The NPA replaces the blanket requirements for navigation studies with a schedule of designated major waterways that are subject to the NPA’s navigation requirements. All works on waterways included in the schedule continue to require regulatory approval under the NPA. In Alberta, scheduled waterways are as follows:
Works built on waterways not included in the schedule are no longer subject to federal regulatory approval regarding their impact on navigability. However, the common-law right to navigation on Canada’s waterways is still protected in Canada, and works on non-scheduled waterways that interfere with navigation may still be subject to legal action.
It is important to note that exemption of bridges on non-scheduled waterways only applies to new bridges. Any bridge constructed after April 1, 2014 on a non-scheduled waterway is automatically exempt from the NPA regulations.
Overview of the NPA’s Opt-Out Clause
In order to address the regulatory requirements for works built prior to the coming into force of the NPA (April 1, 2014) on what are now non-scheduled waterways, Transport Canada has established a five-year opt-out period, which expires on April 1, 2019.
Owners of works that were previously subject to regulation under the NWPA but are no longer subject to regulation under the NPA (due to being located on non-scheduled waterways) can provide Transport Canada with notice of their decision to opt out of the NPA, in which case further construction or modification of the works will no longer be subject to regulation relating to navigability. In addition, some of these works may have been approved under the previous NWPA with conditions related to limits on future modifications/additions, etc. that would no longer be valid upon opting out. For example, a bridge may have been approved under the former NWPA with the condition that additional pillars cannot be added in the future to support more weight. Such condition would no longer be in effect for works on non-scheduled waterways, as long as the owner of the works opts out of the NPA.
If the owner of the works does not opt out prior to April 1, 2019, the works will continue to be regulated under the NPA, despite not being located on a scheduled body of water.
Owners of works are permitted to opt back in to the regulatory regime if they believe that construction, modification, etc. may have an impact on navigability, but the opt-in request is subject to approval by the federal Minister of Transportation. The main reason for opting back into the NPA is to ensure that construction or modification will not interfere with navigation and that a works meets NPA standards. This would likely protect the owner of the works from liability in the event of legal action under the common law right to navigation.
In order to opt-out of the NPA, the owner of the works has to provide Transport Canada with the following information prior to April 1, 2019:
As Transport Canada considers Alberta Transportation as the formal owner of all municipally-managed local road bridges, they would provide Transport Canada with this information in a formal opt-out request on behalf of the managing municipality. In an effort to collaborate with municipalities and ensure that local autonomy over the management of bridges is being respected, Alberta Transportation has asked the AAMDC to indicate whether or not their members support opting out of the NPA. Opting out may place municipalities at an increased risk of liability under the common law right to navigation in the event that modifications to an existing bridge structure compromise its navigability, but opting out will also reduce the administrative and regulatory burden on municipalities when modifying bridges built prior to April 1, 2014.
Factors to Consider
Bridges not regulated under the NPA can still be subject to legal action if they impede navigability
Although the large majority of Alberta’s waterways will not be subject to regulation under the NPA, legal action can still be taken by individuals who feel their ability to navigate a waterway has been interfered with under common law.
Alberta Transportation has made the decision to opt their own bridges out of the NPA because they have evaluated the risk of liability as very low, and believe that the benefits of regulatory freedom will outweigh the risks of potential legal action. To assist in addressing navigability when modifying existing provincial bridges, Alberta Transportation has developed their own navigation assessment practices which they believe are comparable to the regulations under the NPA and will protect them from liability related to navigability issues. Municipalities are able to follow these provincial practices as well if they wish.
It is also important to remember that opting out only applies to existing bridges constructed prior to April 1, 2014, which means that these bridges, when constructed, were built to standards that complied with the former NWPA, meaning unless major modifications are made, navigation is unlikely to be impacted in the future. Any bridge built on a non-scheduled waterway after April 1, 2014, will automatically not be subject to NPA regulations.
The new NPA includes an opt-in provision
If a work is opted-out, and future alterations to the work may have an impact on navigation, the owner of the work is able to apply to be opted-in to the program in order to have a federal review undertaken. It is the minister’s discretion to accept or decline the opt-in request, and such a request must take place on an individual bridge basis, not for a municipality’s entire bridge inventory.
It is in municipalities’ best interests to consider navigation regardless of the NPA
Whether repairing or altering an existing bridge or constructing a new bridge, most municipalities will take navigation into consideration if the waterway that the bridge is spanning is used for that purpose. There are local economic and environmental benefits to considering navigation ability, as well as the possibility of legal consequences to obstructing navigation, even for works on non-scheduled waterways.
The opt-out option only impacts existing works
Regardless of whether municipalities decide to opt-out their existing works, any new bridges or works built on non-scheduled waterways will be automatically exempted from NPA regulations unless the owner requests to opt-in, and that request is approved by the minister. As new works are much more likely to impact navigation than existing works that are already built to standards set by the previous NWPA, the actual impacts of opting-out should, in most cases, be fairly minimal.
The NPA only relates to navigation
Opting a bridge out of the NPA does not impact the responsibility of the owner and/or manager to follow all other provincial and federal regulatory requirements relating to bridge design, construction, and maintenance. Navigability is a very narrow aspect of the considerations associated with building or modifying a bridge.
RMA has no active resolutions directly related to this issue.
Transportation: This resolution assists municipalities with streamlining federal requirements at bridge crossings and was developed in consultation with Alberta Transportation staff. The ministry looks forward to working with those municipalities interested in opting-out of the Navigation Protection Act.
RMA appreciated the opportunity to collaborate with the Government of Alberta in ensuring bridges managed by RMA members complied with the new Navigation Protection Act. This resolution is assigned a status of Accepted.
RMA is concerned with the federal government’s review of changes made to the Navigation Protection Act and whether these will have impacts on municipalities. In early 2018, Bill C-69 (An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts) received first reading at the federal level. Bill C-69 proposes significant changes to the Navigation Protection Act, including broadening the criteria to identify a water body as “navigable.” The RMA will be monitoring the progress of this Bill and the potential impacts it may have on bridges opted out of the existing Navigation Protection Act as per this resolution.