ENCS Midterm 2

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  1. EPEA
    Environmental Protection and Enhancement Act
  2. EAB
    Environmental Appeals Board
  3. E&P
    Environment and Parks (provincial)
  4. DFO
    Department of Fisheries and Oceans (federal)
  5. SOC
    Statement of concern
  6. forms of authorizations
    approvals, licenses, permits, certificates
  7. Roles of the Director within AE
    • Reciept and review of applications
    • ensuring proper notice of applications is given
    • facilitating and reviewing public input
    • making the decision and giving notice of decision
  8. what is decision-making under EPEA guided by?
    • the purpose of EPEA itself
    • more directly by the Approvals and Registrations Procedure Regulation
  9. the over-riding discretion lies with the _____
    • Minister
    • if the Minister of the Environment thinks a proposed activity isn't in the public interest, Minister may prohibit the issuance of an approval/license
  10. Why are environmental authorizations important?
    • They allow:
    • for environmental impacts to occur while placing limits/conditions on those impacts
    • for public participation in the decision-making process (esp for those directly effected)
    • case-by-case analysis of environmental impacts
    • regulator (gov't) and public to track and measure impacts
    • continued improvement in project design/location/operation/etc
  11. approvals
    • most detailed form of authorization under EPEA and the Water Act
    • used for activities that are most likely to have a significant environmental impact
    • site-specific 
    • usually has conditions the party must abide by when carrying out the activity
    • always set out by an act or regulation, and therefore is usually legally binding
    • opportunity for public input
    • right to appeal to EAB
  12. registrations
    • required for activities that have moderate impact on the environment
    • don't allow for public participation
    • no public notice required
    • process is more streamlined than approvals process
    • don't include site-specific terms/conditions
  13. statements of concern
    • written document that you submit to alberta environment to express your concern regarding an application
    • the goal is to show that you are directly affected by the authorization
  14. things to include in a statement of concern to an authorization
    • identify gaps in information or uncertainties
    • relate concerns to relevant pieces of legislation and governments mandate
    • provide new recommendations for conditions of approval
  15. the difference between section 60 and 61 of EPEA
    • section 60: talks about "knowingly commencing"
    • section 61: talks about just commencing 
    • the differences is intent
  16. approvals-based regime in alberta is a split jurisdiction between
    Alberta Energy Regulator and Alberta Environment and Parks
  17. the Director
    • government employees who hold certain positions
    • designated by the minister to make certain decisions
    • have a lot of discretion, but still follow a policy
    • decision-makers
  18. EPEA defn
    • statute that creates the EAB
    • legislature listed "activities" under EPEA that may impact the environment
    • cabinet (executive branch) decided which activities require registrations vs approvals
  19. ex. of activities that require registrations
    • composting facilities (<20 000 waste tonnes/yr)
    • landfill (< 10 000 tonnes of disposal capacity/yr)
    • asphalt paving plant
  20. ex. of activities that require approvals
    • larger industrial facilities (plants, pulp and paper mills)
    • chemical, fertilizer, pesticide, explosives manufacturing facilities
  21. steps in the approvals process for non-energy resource activities
    • 1. applicant submits application to Director
    • 2. notice of application is provided
    • 3. Director reviews application and SOCs. Who is directly affected?
    • 4. Director makes decision on SOCs and whether to issue approval or not
    • 5. Decision on an approval may be appealed to the EAB
  22. natural justice
    • the rule against bias
    • right to a fair hearing 
    • generally the "duty to act fairly"
  23. when an approval is issued, who can appeal before the EAB?
    • the approval holder (formally the applicant)
    • "directly affected" persons who submitted an SOC
  24. when an approval is refused, who can appeal before the EAB?
    the applicant
  25. Pros of the environmental appeals board?
    • gives an opportunity for concerns to be heard
    • less strict on who can intervene
  26. cons of the environmental appeal board
    • high costs for public parties
    • too much discretion in hands of the Minister?
  27. when can costs issued in the environmental appeals board be covered?
    if costs incurred are shown to have helped them show better evidence
  28. EIA
    • environmental impact assessment
    • created under EPEA
    • government mandated process for gathering information about an activity's impacts on the environment
  29. when an activity requires federal authorization, may be a ________
    federal EIA triggered under the Canadian Environmental Assessment Act
  30. if federal and provincial environmental assessments are triggered, there may be a _______
    • "joint review" of a project
    • almost all big projects need these
    • this must be finished before the approvals process
  31. Provincial split jurisdiction on EIAs between:
    • AER: energy resource related activities
    • AEP: EIAs for non-energy resource activities, including hydroelectric dams
  32. 3 categories for the level of requirement of a provincial EIA
    • mandatory
    • exempt
    • discretionary
  33. What causes an activity to require an EIA
    1. activity listed as a "mandatory" activity in Schedule 1 of Environmental Assessment Mandatory and Exempted Activities Regulation

    • 2. when the director has determined that further info is needed for an activity listed in the schedule of activities for EPEA but is NOT a mandatory or exempted activity
    • 3. where the Minister of Environment directs an EIA report be prepared
  34. how to decide whether to order an EIA for non-mandatory activities
    • starts with a "screening" by the Director to assess environmental impacts and evaluate public concern 
    • decide whether potential impacts warrant the triggering of a formal EIA process
  35. Changes to publicly participate in the EIA process
    • decision whether to order an EIA report (if you are considered directly affected)
    • drafting of the terms of reference
    • government's consideration of the final EIA report
  36. how long do you have to submit an SOC for an activity in the EIA process?
    within 30 days of the last notice of the proposed activity, or by the time stated in the notice
  37. scope of the terms of reference for an EIA should address:
    • impacts on environment generally include wildlife issues and cumulative effects
    • should have enough detail to capture likely impacts but also be flexible to encompass impacts on the environment that become evident through the consultation and assessment process
    • should outline public consultation process
  38. who are the costs of participating in the EIA process usually the responsibility of?
    the participant
  39. 3 goals of the environmental assessment process
    • 1. gather information: process ensures enough info is provided by proponent to inform everyone about the proponent's understanding of the consequences of their project
    • 2. public involvement: provides opportunity for those who may be affected by the activity to express concerns, provide advice
    • 3. support sustainable development: info provided in process allows early consideration of project's place in the overall plan for alberta's environment and economy
  40. CEAA 2012
    Canadian Environmental Assessment Act 2012
  41. What sort of environmental assessments are focused on under CEAA 2012?
    • potential adverse effects that are within federal jurisdiction, incl:
    • fish and fish habitat and other aquatic sp.
    • migratory birds
    • federal lands
    • effects that cross provincial or international boundaries
    • effects that may impact Aboriginal peoples
    • changes to the environment directly linked to or necessarily incidental to any federal decisions about a project
  42. Purposes of EIA
    • (section 40 of EPEA)
    • support environmental protection
    • integrate environmental and economic decisions at earliest stages of planning
    • gather info about social, environmental, economic, and cultural effects and mitigation
    • provide input from public, approval holder, gov't
  43. What can "designated projects" under CEAA 2012 do?
    • trigger and EA
    • projects are listed under the Regulations Designating Physical Activities 

    if not listed in the regulation, federal Minister of Environment may still designate it as requiring EA
  44. Responsible authorities who may conduct the EA under CEAA 2012
    • Canadian Environmental Assessment Agency 
    • National Energy Board (interprovincial pipelines)
    • Canadian Nuclear Safety Commission
  45. Screening by Agency for CEAA 2012
    • agency = canadian environmental assessment agency
    • 45 days to complete
    • 20 days for public comment
    • screening considers: does the project have adverse environmental effects on areas of federal jurisdiction?
  46. considerations for EAs being conducted under CEAA 2012
    • "environmental effect" on components of environment within federal jurisdiction including cumulative effects
    • comments from interested parties
    • feasible mitigation measures
    • feasible alternatives
  47. The Water Act determines who diverts water for use by:
    • providing a statutory right to use water in certain circumstances (eg. household use)
    • issuing a licence
    • providing exemptions from requiring a licence
    • allowing water "transfers"
  48. Water uses under the Water Act
    • household use
    • traditional agricultural use
    • licensed use
    • other uses exempted from requiring a licence
  49. Water use and FITFIR
    • AB has a "prior allocation" water system
    • FITFIR: first in time, first in right
    • every water allocation is issued a priority number, in times of water shortages the senior priority can take their entire allocation (volume) before a junior priority takes any water
  50. household water use
    • must own or occupy land adjacent to water or has groundwater underneath it ("riparian rights")
    • may divert up to 1250m3/year/household without a licence
    • water must only be used for "household uses": human consumption, sanitation, fire prevention and watering animals, gardens, lawns and trees
    • highest priority of all water users 
    • "runs with the land"
  51. traditional agricultural water use
    • must own or occupy land adjaent to water or has groundwater underneath it ("riparian rights")
    • water historically used (prior to 1999) for watering livestock and applying pesticides to crops
    • may divert up to 6250m3/year without a licence 
    • could register use only until Dec 31 2001
  52. "runs with the land"
    • for water registrations, grandfathers back to the date when water first used
    • registration comes with the land
    • does NOT apply when water transfers have been authorized
  53. water licences
    • written record of an allocation of water
    • can be issued to any person for a "diversion of water" (impound, store, consume, take, remove)
    • priority is set by the date the application is deemed complete
    • director can impose terms or conditions in the licence (eg. minimum flow requirements)
  54. exempted uses that don't need a water license
    • diverting groundwater from a water well equiped with a manual pump
    • diverting to a dugout below a certain size (less than 12500m3) which is not located in a watercourse frequented by fish
    • diversions of saline groundwater
    • diversions for firefighting
  55. inter-basin water transfer
    • between major river basins
    • requires a separate Act
  56. intra-basin water transfers
    • transfers within a major river basin
    • transfer provisions of Water Act only in certain water basins
    • transfer can be permanent or temporary
    • only permitted in an area with an approved water management plan or a cabinet order is in place
    • financial agreement is between transferor and transferee
  57. Provincial fish and water legislation
    • Public lands act
    • Water Act
    • Municipal Government Act
    • EPEA
    • Safety Codes Act
    • Public Health Act
    • Agricultural Operations and Practices Act
    • Stray Animals Act
  58. Federal fish and water legislation
    • Fisheries Act
    • Navigable Waters Protection Act
  59. when do you need an approval concerning a water body under the Water Act?
    • to undertake an 'activity' within a water body that disturbs land or vegetation in or around a water body
    • alters water volumes, flows, levels, location, direction of water
    • causes siltation or erosion of bed and shore
    • effects aquatic environment
  60. "water body"
    any location where water flows or is present, whether or not flow presence of water is continuous, intermittent, or occurs only during a flood and includes wetlands
  61. wetland policy (2013)
    • applies to all of AB
    • recognizes not all wetlands are of equal value - wetlands will be categorized based on criteria
    • Avoid, Minimize, Replace
  62. "activities" under the Water Act may also require:
    • Public Lands Act disposition or authorization
    • Review by Department of Fisheries and Oceans - Federal Fisheries Act
  63. Fisheries Act - HADD
    • How it was before?
    • 35(1) no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat
    • Now: no HADD. replaced with ".. no serious harm to fish that are part of a commerical, recreational or Aboriginal Fishery, or to fish that support such a fishery"
  64. "serious harm to fish"
    • death of fish or permanent alteration to, or destruction of, fish habitat
    • Department of Fisheries and Oceans can grant an authorization to cause serious harm to fish
  65. changes to fisheries act in regards to pollution prevention?
    • 36(3) no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish...
    • only change = further situations where the Minister is allowed to make regulations authorizing the deposit of deleterious substances
  66. PLA
    • Public Lands Act
    • broad authority to manage/administer public land
    • sec 20: no person shall enter on and occupy public land for any purpose unless the Director or AER has authorized it
  67. PLAR
    • Public Lands Administration Regulation
    • access to vacant public land
    • tools: dispositions (formal dispositions, authorizations, approvals)
  68. what are the differences between PLA and PLAR?
    where PLA doesn't give detailed rules (ex. dispositions and vacant public land), PLAR fills in details by providing comprehensive rules
  69. What public lands does PLA apply to?
    • only public land that is under the administration of Minister of ESRD
    • ~ 60% of Alberta's land base (see green area)
  70. who is public land owned by?
    • the Crown and under the administration of  Alberta Environment and Parks
    • but the AER can administer some aspects of public land for energy resource activities
  71. the four regulations that fall under PLA?
    • Dispostions and Fees Regulation
    • Forest Recreation Regulation
    • Castle Special Management Area Forest Land Use Zone Regulation
    • Unauthorized Use of Land and Recovery of Penalty Regulation
  72. purpose of PLAR?
    • written to apply to any activity by anyone on public land (doesn't apply to private land, doesn't change leaseholder rights)
    • designed to provide legislative and regulatory framework to deal with the growing demands for renewable and non-renewable resources on public lands
    • better balance resource development, recreational use access
    • still meet environmental performance through conservation and stewardship outcomes
  73. what kind of beds and shores included in "public lands"?
    beds and shores of all permanently and naturally-occuring waterbodies and water courses
  74. how much of the water in AB is owned by the Crown?
    • all of it
    • and all land underneath permanent, naturally occuring water bodies (PLA)
  75. legal bank
    • the line between private and public ownership
    • a distinct change in vegetation, sometimes called the "ordinary high water mark"
  76. Recreational Access Regulation
    recreational access to grazing dispositions
  77. what do you need a disposition for on public lands?
    • under PLA, you need a disposition to occupy public land, including beds and shores
    • can be granted by AEP for non-energy activities, granted by AER for energy-resource activities
  78. formal dispositions
    • right to occupy public land usually for long periods of time (10-20 years)
    • grazing leases
    • industrial activities (oil/gas sites, mines, gravel pits, pipelines)
    • you do have to pay "rent", but its not very much
  79. authorizations (public land)
    • right to do something on the land
    • temporary work on public land (eg. less than one year, ex. a perscribed burn or grazing lease)
    • access permits for entry and occupation on vacant public land
  80. approvals
    • permission for activities that aren't already provided for in formal dispositons or authorizations (less rights than an authorization)
    • grazing of bison
    • range improvements
    • assign or transfer a disposition
  81. How to get a formal disposition, authorization, or approval?
    • 1. apply
    • 2. internal review
    • 3. issue or reject
    • no public notice, no ability for "directly affected" ppl to submit SOCs
    • you do hvae the right to appeal the decision to issue/not issue the disposition to the Public Lands Appeal Board (PLAB)
  82. PLAB
    • Public Lads Appeal Board
    • established under PLAR
    • administrative tribunal/board
    • hears of appeals of decisions made by Directors under the PLA and the PLAR
  83. vacant public land
    • public land that is not subject to a formal disposition
    • PLAR provides a statutory right to recreate on vacant public land for up to 14 days
    • need an access permit (authorization) if going to be on vacant public land for recreational purposes for more than 14 days or for commercial purposes
  84. PLAB appealable decisions
    • issuance or refusal to issue a "disposition"
    • issue with terms
    • dispositions incl. formal disposition, authorizations, approvals
  85. who can appeal in PLAB?
    • the person who was given the decision
    • person "directly and adversely affected" by the decision
    • other disposition holders and owners of adjoining land (right next to it)
  86. Grounds for appeal in PLAB
    • decision is appealable only on the grounds that the director who made the decision:
    • erred in determination of material fact (interpreted/stated evidence wrong)
    • erred in law
    • exceeded the director's jurisdiction or authority
    • didn't comply with a regional plan
  87. process of PLAB
    • PLAB submits a report and recommendations to the Minister of E+P
    • Minister makes final decision
    • Minister's final decision can be challenged in court by judicial review
  88. prohibitions of SARA
    • kill/harm species at risk
    • possession of SAR
    • damage or destruction of residence 
    • critical habitat (ss. 58+61)
  89. "critical habitat" in SARA
    habitat necessary for survival or recovery of a listed species (as identified in Recovery Strategy or Action Plan)
  90. offenses and punishment in SARA
    • corporations: up to $1 mill
    • individual: fines up to $250 000, up to 5 years in jail
  91. issues with SARA
    • descretion in government decision-making is broad (particularly on provincial lands)
    • political sway in listing - science should guide listing, management could take into account other factors
    • most provinces have little in way of species at risk protection
  92. Provincial approach to SAR
    • highly descritionatory
    • legislative prohibitions only deal with vertebrates
    • habitat conservation is left to policy
  93. what is forestry law?
    • really about regulating commercial industrial practices
    • in AB: collection of states and regulations that regulate industrial forestry activites on Crown land
    • must also comply with other laws (ex. provincial environmental laws like Water Act, EPEA, Fisheries Act [federal law[)
  94. what regulates the practice of forestry?
    • Regulated Forestry Profession Act
    • RPF: registered professional forester
    • RPFT: registered professional forester technologists
  95. how is Crown timber organized?
    • province organized into forestry management units (FMUs)
    • AAC determined for each FMU by species (area that can be harvested on a sustainable level for a unit area)
    • Crown charges?
  96. forest tenure
    • the right to harvest trees from Crown land
    • security of supply of raw materials, from short term to long term
  97. How does the Crown determine how to "dispose" of timber?
    • through 3 diff kinds of dispositions
    • Forest Management Agreement (FMA)
    • Timber Quota Certificats (and associated timber licenses)
    • Timber Permits
  98. when does the timber switch from being owned by the Crown to being owned by the one with tenure?
    when they are severed from the stump
  99. challenges in forestry?
    • search for new markets
    • negotiation of softwood lumber agreement
    • reduction in Crown land available for forestry (squeezing of public land available for forestry, mountain pine beetle, land use policy changes)
  100. stages of development for energy resource management
    • 1. Mineral rights
    • 2. Exploration and surveying
    • 3. Negotiate with surface owners
    • 4. Licensing
    • 5. Development
    • 6. Abandonment and reclamation
  101. AER
    Alberta Energy Regulator
  102. REDA
    Responsible Energy Development Act
  103. energy resource
    any natural resource within Alberta that can be used as a source of any form of energy, but doesn't include hydro energy
  104. energy resource activity
    • an activity that may only be carried out under an approval issued under an energy resource enactment, or
    • an activity that is described in the regulations that is directly linked or incidental to the carrying out of getting energy resources
  105. energy resource enactments
    • Coal Conservation Act
    • Gas Resources Conservation Act
    • Oil and Gas Conservation Act
    • Oil Sands Conservation Act
    • Pipeline Act
    • and more
  106. specified enactments (AER)
    • Public Lands Act
    • Part 8 of Mines and Minerals Act (exploration)
    • Environmental Protection and Enhancement Act (EPEA)
    • Water Act
  107. AER applications include:
    • energy resource enactments (energy licenses)
    • Public Lands Act dispositions (eg. mineral surface leases, pipeline dispositions, licenses of occupation)
    • EPEA approvals (e.g. coal mines, oil sands mines, sour gas wells)
    • Water Act approvals and licenses
    • Reclamation certificates under EPEA

Card Set Information

Author:
hcunning
ID:
335682
Filename:
ENCS Midterm 2
Updated:
2017-11-08 05:46:04
Tags:
environmental law
Folders:
law
Description:
lectures 9-19
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