Got Gravel? Strategies to Secure Gravel for Rural Municipalities. Part 1 - Summary Report. October 30, 2013

Transcription

1 ALBERTA ASSOCIATION OF MUNICIPAL DISTRICTS AND COUNTIES Got Gravel? Strategies to Secure Gravel for Rural Municipalities Part 1 - Summary Report October 30, 2013 Prepared for the Alberta Association of Municipal Districts and Counties by CharettePellPoscente Environmental Corp.

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3 Executive Summary Gravel is a non-renewable natural resource necessary for infrastructure development and maintenance. Gravel is considered a surface material and the Law of Property Act specifies that the owner of the land owns the rights to the surface material. Therefore on private land, the titled land owner controls the rights to the gravel. Government, municipalities and commercial operators all have equal competitive advantage in acquiring the gravel rights on private land. This is done through negotiated agreements with the land owner or purchase of land on which gravel deposits occur. On public land, the Government of Alberta (GoA) controls the rights to the gravel, managed by Environment and Sustainable Resource Development (ESRD). Gravel sources on public land are allocated by ESRD to meet provincial, municipal and commercial needs. Alberta policy specifies priority be given to consideration of provincial and public needs prior to the allocation of gravel to other interests. References to gravel allocation in this report are in the context of allocating public land gravel, not private land sources. There are no land planning strategies in place to manage gravel use for provincial, municipal and industry needs. Existing integrated land management plans only clarify where gravel extraction can occur, not how to manage the abundance or scarcity of the resource. Public land gravel deposits are managed on a first come first served basis, primarily through the procedures outlined in the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land. Municipalities are increasingly experiencing delays obtaining gravel due to onerous and unclear regulatory processes. Policy intent is clear but procedures to implement policy are lacking. Challenges exist such as competition for gravel reserves, cost of exploration and acquisition and uncertainty about how to reserve public gravel sources for future use. In response to the concerns, the Alberta Association of Municipal Districts and Counties (AAMDC) membership passed resolution 15-10F at the fall 2010 convention, which directed the AAMDC to encourage the development of a provincial strategy for the management of aggregate resources. The intent of the resolution is as follows: THEREFORE BE IT RESOLVED that the AAMDC encourage the Province of Alberta to develop a province wide strategy for the management of aggregate resources through the Provincial Land Use Framework; and That municipalities where the resource is located be given first priority when the Province of Alberta reviews applications for a Surface Material Exploration (SME) or Surface Material lease (SML) on Crown Land. Provincial government response to the resolution noted that the province offers municipalities the opportunity to request aggregate reserves for public works purposes. However, the response lacked indication that provincial strategies for the management of aggregate resources would be undertaken. 1 As a result in 2013 the AAMDC commenced a project to: 1 Resolutions Database, Got Gravel? Part 1-Summary Report i

4 Analyse provincial and federal legislation and policy that have impact on the planning, allocation and development of gravel pits by municipalities on public land and to identify gaps and areas for improvement. Survey the rural municipalities in Alberta to understand the concerns of acquiring gravel reserves, the types of reserves in use (e.g. public or private land), and issues regarding the development of those reserves. Conduct a geographical analysis to better understand gravel availability, allocation and usage in the province. Produce information and products aligned to the Alberta Land Stewardship Act regional planning boundaries, describing the current state of gravel availability, allocation and usage. This report summarizes the legislation (policy) review and rural municipality summary tasks of the project. The geographical analysis and regional gravel planning information is presented in a separate report titled Got Gravel? Strategies to Secure Gravel for Rural Municipalities Part 2- Technical Report. Recommendations arising from the consultant assessment of the legislation review and rural municipality survey are: Recommendation 1: The AAMDC request Environment and Sustainable Resource Development to amend the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land to conduct referrals to rural municipalities earlier in the allocation process. ESRD s response to the AAMDC resolution 15-10F indicated that a referral would be conducted at the exploration stage of an application. 2 Additionally the 2010 Update Report - GOA Initiatives in Rural Alberta indicated that referrals under the new gravel allocation policy would occur at the exploration stage, recognizing requirements for public works as a main consideration in the allocation. 3 The procedures in the approved policy have no requirement of the referral of gravel exploration applications. Referral to a municipality may only occur after an initial 32 hectare (80 acre) allocation is made, and for only that portion of the gravel deposit remaining. Recommendation 2: The AAMDC request Environment and Sustainable Resource Development to develop directives and guideline documents that set in place procedures for prioritizing rural municipal aggregate needs from public land sources within the department s land management systems and allocate aggregate to rural municipalities within the intent of the Land Use Policies and provincial legislation. Legislation and policy is in effect in Alberta that establishes priority of public land sourced gravel to public works, whether the need is provincial or municipal. Uncertainty exists within the municipalities because of the lack of processes and procedures to implement policy. For example it is unknown if municipalities can request notations on public land to register interest in gravel, similar to the Alberta 2 Ditto, p3, Government Response, first sentence Update Report - GOA Initiatives in Rural Alberta, Community Capacity, Quality of Life and Infrastructure section, p9, report.pdf ii

5 Transportation gravel reservations. Developing directives can clarify how costs to the taxpayer can be better managed, for example if Alberta Transportation is developing a pit, the provincial timber damage fee is waived, whereas if a municipality is developing a pit, the provincial timber damage fees are assessed. In both cases the gravel is used for public works purposes. Recommendation 3: Rural municipalities should conduct a cost benefit analysis against options to determine if acquiring and operating a pit and assuming the inherent environmental management cost and liability, are efficient in the long-term. Trucking gravel to a project site accounts for the greater portion of the cost of gravel supply. Trucking costs will be incurred whether the pit is privately owned or operated by the municipality. Environmental management costs include pre-disturbance site assessments and studies, application requirements, environmental regulatory requirements, liability for contamination and reclamation liability. Environmental costs are incurred whether a pit is on public or private land. Administration costs will apply on public land pits for volume tracking and annual reporting requirements. Using cost benefit analysis a municipality can determine if, over the long-term, it is efficient to incur the environmental management cost and administration costs over other options such as purchase of gravel through commercial operators. Recommendation 4: Rural municipalities participate actively in regional planning processes through the Land-use Framework Regional Advisory Committees to raise awareness of aggregate needs, support future community growth and develop strategies to ensure economical supply of aggregate for future public works purposes. The Land-use Framework is the GoA s new approach to managing the province's land and natural resources to achieve Alberta s long-term economic, environmental and social goals. Under the Land-use Framework, seven planning regions are established. Upon completion of the planning process, each region will have a strategic plan, approved by Cabinet under the Alberta Land Stewardship Act. Tools have been developed in the supplementary report, Provincial Aggregate Study - Part 2 - Technical Report that informs and portrays the status of aggregate availability by land-use planning region. The intent is for rural municipal representatives sitting on the Regional Advisory Committee to have base information for input into the planning process. Recommendation 5: The Government of Alberta should work closely with rural municipalities towards development of a consistent bylaw framework for aggregate related development permit application requirements that considers the assessments, mitigation strategies and regulatory conditions approved by the province and reduces the duplication between provincial approvals and development permit approvals on both private and public land. There is an opportunity for better collaboration between the two levels of government on the approval of gravel pits, particularly those on private land. Where the provincial requirements and codes of practice are not addressing the common issues being realized by the majority of the municipalities, the provincial regulatory requirements should be modified. This would provide a higher degree of confidence by municipalities that environmental, land and water issues are being adequately addressed. iii

6 This enables municipalities to focus the development permit on localized site specific concerns that are not effectively addressed by provincial requirements (e.g. noise, dust, adjacency impacts etc.). Acting on this recommendation would clarify environmental and natural resource management roles within approval processes and reduce redundancy between the provincial and municipal approvals. Summary Implementing the recommendations made in this report set the stage for better aggregate management in Alberta, specifically for the identification and allocation of strategic reserves to accommodate future public works needs. Competition for gravel in Alberta is high because of the significance of its use in the construction and maintenance of both public and private sector infrastructure. Commercial operators in Alberta play a key role in supplying aggregate to support both private and public sector uses. Eighteen of the 69 rural municipalities in Alberta rely on commercial operators for the majority of their aggregate needs. The approaches recommended are cooperative, enabling the public, government and commercial interests to be met. iv

7 Table of Contents Executive Summary... i Summary... iv Introduction... 1 Methodology... 2 Policy... 4 Analysis and Recommendations... 5 Benefits to Rural Municipalities... 6 Policy and Procedure Gaps... 8 Planning Gaps Policy Summary Rural Municipality Aggregate Survey Summary Current State Analysis Rural Municipality Aggregate Management Closing Summary Appendices Appendix 1: Policy Analysis Tables Appendix 2. Rural Municipality Survey Results and Analysis v

8 Introduction Gravel is a non-renewable natural resource necessary for infrastructure development and maintenance. On private land, the titled land owner controls the rights to the gravel. Government, municipalities and commercial operators all have equal competitive advantage in acquiring the gravel rights on private land. This is done through negotiated agreements with the land owner or purchase of land on which gravel deposits occur. On public land, the Government Public land gravel reserves are managed on first come- first served approach. of Alberta (GoA) controls the rights to the gravel, managed by Environment and Sustainable Resource Development (ESRD). Gravel sources on public land are allocated by ESRD to meet provincial, municipal and commercial needs. References to gravel allocation in this report are in the context of allocating public land gravel sources, not private land. Alberta policy specifies priority be given to consideration of provincial and public needs prior to the allocation of gravel to other interests. There are no land planning strategies in place to manage gravel use for provincial, municipal and industry needs. Public land gravel deposits are managed on a first come first served basis, primarily through the procedures outlined in the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land. Existing integrated land management plans only clarify where gravel extraction can occur, not how to manage the abundance or scarcity of the resource. The cabinet approved Lower Athabasca Regional Plan, representing a region with the highest industrial development, low gravel reserves and very high gravel consumption, does not address gravel management on public land other than to say it will be allocated as per existing policies. The Alberta Association of Municipal Districts and Counties (AAMDC) is an independent association representing Alberta s 69 counties and municipal districts. In response to member s concerns regarding gravel management in Alberta, resolution 15-10F was passed at the fall 2010 convention which directed the AAMDC to encourage the development of a provincial strategy for the management of aggregate resources. The intent of the resolution is as follows: THEREFORE BE IT RESOLVED that the AAMDC encourage the Province of Alberta to develop a province wide strategy for the management of aggregate resources through the Provincial Land Use Framework; and That municipalities where the resource is located be given first priority when the Province of Alberta reviews applications for a Surface Material Exploration (SME) or Surface Material lease (SML) on Crown Land. Provincial government response to the resolution noted that the province offers municipalities the opportunity to request aggregate reserves for public works purposes. However, the response lacked any Got Gravel? Part 1-Summary Report 1

9 indication that provincial strategies for the management of aggregate resources would be undertaken. 4 Policy intent is clear but procedures to implement policy are lacking. Challenges exist such as competition for gravel reserves, cost of exploration and acquisition, uncertainty about how to reserve public gravel sources for future use and approval delays. In response, the AAMDC provided leadership on this issue by commencing a project in April 2013 to better understand the existing legislation, gravel management practices and allocation systems used by the GoA. The project included: Analysing provincial and federal legislation and policies that have impact on the planning, allocation and development of gravel pits by municipalities on public land and to identify gaps and areas for improvement. Surveying the rural municipalities in Alberta to understand the concerns of acquiring gravel reserves, the types of reserves in use (e.g. public or private land), and issues regarding the development of those reserves. Conducting a geographical analysis to better understand gravel availability, allocation and usage in the province. Producing information and products aligned to the Land-use Framework regional planning boundaries, describing the current state of gravel availability, allocation and usage. This report summarizes the legislation (policy) review and rural municipality survey of the project (first and second bullets above). The policy assessment includes a description of the benefits and constraints on municipalities securing aggregate reserves. Recommendations are provided where there is an opportunity to enhance the policy and associated procedures. The geographical analysis and regional gravel planning information (the third and fourth bullets above) are presented in a separate report titled Provincial Aggregate Study - Part 2 - Technical Report. The technical report provides a comprehensive description of the potential aggregate reserves in the province and current allocation statistics. The analysis is further broken down by the seven land use framework planning regions to identify regional aggregate surpluses and deficits, including tools and information that can be used to inform regional planning processes. Methodology The policy assessment was conducted though a review of all provincial and federal legislation, regulation and policy related to the exploration, operation and reclamation of a gravel pit. Results were summarized in a table format for quick reference. Through a synthesis process, gaps were identified in respect to management and/or allocation of gravel to municipalities. Information was shared with multiple stakeholders including ESRD, Municipal Affairs, the Ministry of Transportation the Land Use Secretariat, the Alberta Road Builders and Heavy Equipment Association and the Alberta Sand and Gravel Association. Stakeholder feedback was considered in the development of the recommendations. A web based survey of the 69 rural municipalities was conducted to understand the current state of gravel supply, sources of gravel used by municipalities and issues associated with securing gravel 4 Resolutions Database, 2

10 reserves, whether on public or private land. The survey was open for a three week period, with followup weekly by telephone calls to invited participants who had not yet completed the survey. The survey results were used along with the policy analysis to develop the recommendations. The policy assessment and rural municipality survey was compiled into this report, titled: Got Gravel? Strategies to Secure Gravel for Rural Municipalities- Part 1 Summary Report. The geographical analysis was conducted using five data sets: the Digital Integrated Disposition System, Alberta Geological Survey aggregate data, ESRD data for Class 1 pits, Municipal Affairs data sets on population and the data collected from the rural municipality survey. The data was analyzed using Excel and ArcView, a geospatial tool that enables visualization, management and mapping of data. Various provincial maps, tables and graphs were developed to represent the status of gravel availability, allocation and potential future reserves. The Land-use Framework regional planning assessments involved presenting the provincial data summarized for each of the seven regions. Descriptions of gravel availability, allocation, current use and potential future reserves were prepared for each region. The focus was on providing products that can be used by rural municipality representatives in the Land-use Framework regional planning processes. The provincial geographical assessment and regional summaries are compiled into an associated report titled: Got Gravel? Strategies to Secure Gravel for Rural Municipalities Part 2 Technical Report. 3

11 Policy Analysis of provincial and federal legislation was conducted to understand the current state of policy and the influence of policy on rural municipality acquisition of strategic aggregate reserves, pit operations and reclamation requirements. Gaps in policy or procedures were identified and recommendations made for improvement to the strategic management of public aggregate resources and improvement of municipal practices associated with gravel development. Provincial and federal legislation was assessed under the categories of: exploration, acquisition and operations, and reclamation These categories were selected to represent the main stages in the life cycle of a gravel pit and the applicability of policy to those stages. Table 1 represents the legislation that was reviewed with direct applicability to one or more categories. Table 1 Legislation and regulation review and the relationship with the phases of aggregate exploration, acquisition/operations and reclamation. Applicability of Legislation Legislation Exploration Acquisition/Operations Reclamation Alberta Land Stewardship Act Law of Property Act Municipal Government Act Public Lands Act Public Lands Administration Regulation Exploration Dispute Regulation Environmental Protection and Enhancement Act Conservation and Reclamation Regulation Code of Practice for Pits Historical Resources Act Forest Act Water Act Code of Practice for Watercourse Crossings Weed Control Act Weed Control Regulation Wildlife Act Wildlife Regulation Canada Wildlife Act Migratory Birds Convention Act Species at Risk Act Fisheries Act Navigable Waters Protection Act First Nations Consultation (Policy) 4

12 Assessment tables for each category are provided in Appendix 1, including diagrams summarizing the policy influence over exploration, acquisition and reclamation. Specific policy documents are noted in the table under the legislation that provides the policy authorization. For example, the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land is discussed under the Public Lands Act. The tables provide: Gravel is allocated by the Alberta government where it occurs on public land. On private land, the land owner owns the rights to the gravel. Name of the provincial or federal legislation. Applicability of the policy to private land, public land, or both. A description of the legislation intent (specific to a section of the legislation where applicable). Comments to establish the context of the legislation. Comments on the significance of the legislation for rural municipalities. Cost impacts of the legislation to rural municipalities. The tables can be used as reference by municipalities to understand the provincial and federal requirements for aggregate planning, exploration authorities, development authorities or reclamation certificates. Analysis and Recommendations Acquiring gravel resources on private land differs from that of public land. The Law of Property Act declares that surface material (defined as being sand, gravel, clay or marl) is owned by the landowner. Interested parties who desire to acquire, develop and operate a gravel pit on private land must either negotiate with the landowner to establish an agreement, or purchase the land to gain the ownership of the aggregate. Provincial allocation of gravel can only occur on public land or provincially titled land (such as a municipal road allowance), where the province of Alberta owns and manages surface materials. Alberta s legislation and policy clearly sets the intent and mandate to manage public gravel resources with a priority to provincial or municipal public works. At the same time, it is recognized that commercial operators in Alberta play a key role to supply gravel to public works projects whether they be for provincial, urban or rural infrastructure. Eighteen of the 69 rural municipalities in Alberta rely on commercial operators for the majority of their aggregate needs 5. Allocation policy must consider the role of commercial operators in the supply of gravel to public works. Whether on public or private land, the operating practices and environmental standards for operating a gravel pit are similar between commercial and municipal operators. These include application processes for authority to operate, operating guidelines, environmental requirements, and reclamation requirements. 5 Based on the 2013 rural municipal district survey, Appendix 2 5

13 Benefits to Rural Municipalities Areas in the legislation and policy framework were identified as providing benefits to municipalities (Appendix 1). The benefits are described under the following categories of cost, allocation, and planning. Cost The benefits can be applicable to either public or private land or both: 1. Under the Public Land Administration Regulations, municipalities are exempt from paying royalties on public land sourced gravel. 2. Under the Public Land Administration Regulations, municipalities are exempt from paying reclamation security on public land and private land pits. 3. Under the Public Land Administration Regulations, municipalities are exempt from application fees related to public land gravel applications (exploration and development). 4. Under the Public Land Administration Regulations, municipalities have equal competitive advantage of acquiring private land gravel reserves, through landowner negotiated agreements or purchase of land with gravel resources. 5. Under the Municipal Government Act (Section 72, Part 3, Division 8) rural municipalities can purchase land outside of its boundaries, with the consent of the jurisdiction in which the land is located. Therefore a rural municipality can pursue gravel reserves on private land outside of its boundary. The benefits described represent a small portion of the actual cost associated with exploration, acquisition and development of pits, whether they are on private or public land. Major expenditures for the acquisition of a pit are attributed to environmental studies, legal survey, timber damage assessment fees (public land), Forest Management Agreement consent and withdrawal fees (public land), landowner access and development agreements (private land) and land purchase cost (where private land gravel reserves are purchased). Allocation Allocation of gravel is only applicable to public land sources. The legislation, regulation and policies are clear in the intent and authority of the provincial government to allocate public land aggregate priority use towards public works projects and provide municipalities the right to use to public land gravel sources. This can be seen through: 1. The Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land (p.1) provides a statement acknowledging that municipalities may identify sources of aggregate for public works purposes and be issued appropriate dispositions. 2. The Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land is for commercial operators. Rural municipalities are exempt from the size constraints of 6

14 exploration programs, size of pits for direct award and other requirements of the policy designed to manage speculation by commercial operators The Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land procedures (section 6b, p.3) states in situations where an applicant applies for an area over 80 acres in size, ESRD may first consider public needs and general aggregate availability in the vicinity. 4. A Place to Grow - Alberta s Rural Development Strategy published the Current and Emerging Initiatives 2010 Update report in which it stated Implement the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land, a new policy that recognizes requirements for public works as the main consideration in allocation of aggregate. Refer all aggregate exploration applications to related municipalities for comments (p.9). 5. The Public Lands Administration Regulation (PLAR) allows surface materials leases to be issued for up to a 25 year term; the aggregate allocation policy sets 10 year maximum terms for commercial operators. Rural municipalities are technically eligible for a 25 year lease unless they are operating commercially. 6. The Exploration Dispute Resolution process is available on public land for access disputes arising between an applicant seeking authority to explore for gravel and the agricultural lease holder (for example a public land grazing lease). 7. Application can be made to the Surface Rights Board where consent for gravel extraction is denied by a public land lease holder. 8. The PLAR section 115 provides the Minister authority to authorize removal of gravel from a public lands pit for construction and maintenance of public works, roads, etc. (compensation may apply). Planning Planning is applicable to both public and private land through provincial and municipal authorities respectively: 1. The Alberta Land Stewardship Act provides the government authority to establish integrated planning regions and prepare regional plans that establish economic, social and environmental objectives, plan for the future and provide for coordinated decision making. 2. Rural municipal representatives are eligible to participate in regional land use planning through the Regional Advisory Council established for each planning area. 4. Land Use Policies reflect the desired spirit of cooperation between the provincial government and municipalities in the identification, planning and development of gravel reserves Land Use Policies encourage municipalities to identify areas where the extraction of gravel is the primary use (p.9, Section 6.2 clause 1). 6 Municipalities selling aggregate from public land pits to residents in any quantities are considered to be commercial operators. In those situations the pit is considered a commercial operation and allocation constraints of the commercial aggregate allocation policy will apply. 7 The Land Use Policies were developed pursuant to Section 622 of the Municipal Government Act, effective November 6, 1996 and approved by Cabinet. The reference to planning aggregate reserves is on p.9 section 6.2 bullet 1 and p bullet 3. 7

15 4. Land Use Policies promote municipalities to directly work with provincial resource management agencies to develop plans of mutual interest (p.5, Section 3 clause 7). The Land Use Policies (1996) established under authority of the Municipal Government Act is the best framework available at this time setting the expectations of cooperation, collaboration and planning between the provincial and municipal governments. The Alberta Land Stewardship Act provides the authority for regional land use planning, in which strategies can be established to manage public aggregate resources, depending on the forecasted surpluses or deficits of the resource in the region. A shortcoming is the Land Use Policies are no longer applicable as a governance framework for a region after a regional plan is in place. Therefore if the regional plan does not incorporate the strategies to manage public gravel resources to meet future public works needs, or the expectation of collaboration between the two levels of government, then many gaps will exist in execution of the plans. Policy and Procedure Gaps As stated earlier, legislation and policy intent to prioritize use of public gravel deposits towards public works projects is adequate. Issues arise with conflict in procedures between policies or government statements not fulfilled and/or lack of guidance for implementation of policy. Conflict in government documents indicates either: Misunderstandings between various departments within government. Administrative processes have diverged from achieving the original policy intent. Policy Gaps The Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land, section 6 establishes the procedure for consideration of a gravel source to be allocated to public use. Section 6 of the policy states: 6. (b) Prior to advertising the land for bonus bid, Sustainable Resource Development may first consider public needs and general aggregate availability in the vicinity. Issues related to the section 6. (b) of the allocation policy are: The government uses the term may when referring to consideration of public needs; there is probability a gravel pit sale through a bonus bid 8 could proceed without the local municipality s knowledge or opportunity to express an interest. It is unclear what is involved in considering public needs or the process by which this is done. There is no commitment for a referral to the rural municipality or an adjacent municipality if the source is near a municipal boundary. In most cases commercial operators have, at this point in the process, expended significant funds and resources to explore for and confirm commercially viable sources. 8 A bonus bid is a process used by the Alberta Government to competitively allocate gravel on public land; generally it is conducted through a public tender process. 8

16 Procedure Gaps o Re-directing aggregate at this stage is within the authority of government but reflects a stalwart and confrontational approach between government and commercial operators. The 2010 Update Report Government of Alberta Initiatives in Rural Alberta described the Alberta government s commitments to implement policies and the intent of the actions. It is clear the government s intent was to establish an earlier referral to rural municipalities than what was reflected in the approved policy. The 2010 Update Report includes the following statement: 9 Implement the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial use on Public Land, a new policy that recognizes requirements for public works as the main consideration in allocating aggregate. Refer all aggregate exploration applications to related municipalities for comments. Furthermore, the GoA s response provided by ESRD to AAMDC resolution 15-10F, calling for the development of a provincial strategy for aggregate resources management, states: 10 When Sustainable Resource Development (SRD) receives an aggregate exploration application under its new Allocation Policy for Commercial Use on Public Land, SRD notifies the associated municipality and gives it an opportunity to comment on the application and indicate whether it wants to reserve part or all of the aggregate for public works There appears to be a conflict between the government commitments of referral to the rural municipality at the exploration stage of the allocation process and the approved aggregate policy, which only hints at a possible referral when a bonus bid is triggered. Only one or two bonus bids have occurred since the implementation of the allocation policy in 2010, therefore there have been few referrals and little consideration of public need occurring in gravel allocation decisions. Recommendation 1: The AAMDC request Environment and Sustainable Resource Development amend the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land to conduct referrals to rural municipalities earlier in the allocation process. Specifically, this recommendation involves: Edit section 5 (a) of the allocation policy procedures to include a referral to the local municipality at the exploration application stage. Edit section 6 (b) of the allocation policy to state, Prior to advertising the land for a bonus bid, ESRD will first consider public need and general aggregate availability in the vicinity by Update Report - GOA Initiatives in Rural Alberta, Community Capacity, Quality of Life and Infrastructure section, p9, 10 Resolutions Database, 9

17 consulting with the local municipality, (changes may in the approved policy to will in the edited policy to be more definitive). Include the adjacent municipality in a referral when the deposit is within twenty kilometers from a municipal boundary. The recommended edits to the allocation policy compel ESRD to consult with municipalities at the exploration stage and bonus bid stage of allocations to determine public needs. The recommended changes better reflect the intent expressed by provincial legislation and the Land Use Policies in regard to planning gravel allocations and determining priority to public works future needs. The twenty kilometer distance from a municipal boundary is an arbitrary distance; the intent is to manage aggregate for public works across municipal boundaries. Benefits of early disclosure of a municipality s interest in the resource are: ESRD is informed and can consider public works needs of the municipality. The municipality can cooperate with the commercial operator; o on the exploration of the resource, and o on the development of the resource including an option to develop contractual agreements. Public aggregate deposits can be managed to fulfil needs across municipal boundaries. A critical gap exists for implementation of the legislation and policies specific to aggregate allocation to rural municipalities as well as how to manage public gravel reserves for priority uses. Current guidance documents are developed for commercial operations and are not wholly applicable to municipalities. There are instances where development constraints of the allocation policy, designed to be applicable to commercial operators to manage speculation, are being applied to municipalities (e.g. the 32 hectare (80 acre) pit size constraint). There is a need for ESRD to provide better direction, guidance and support to rural municipalities in order to achieve the provincial policy intent and planned policy outcomes. Municipalities can benefit because of clear rules and processes. Albertans can benefit because of a higher certainty of future aggregate supply and lower development costs where strategic public gravel reserves were identified to support future growth and maintenance of public works assets. Recommendation 2: The AAMDC request Environment and Sustainable Resource Development to develop directives and guideline documents that set in place procedures for prioritizing rural municipal aggregate needs from public land sources within the department s land management systems and allocate aggregate to rural municipalities within the intent of the Land Use Policies and provincial legislation. Legislation and policy is in effect in Alberta that establishes priority for allocation of public land sourced gravel to public works, whether the need is provincial or municipal. Uncertainty exists within the municipalities because of the lack of processes and procedures to implement policy. It is unknown if municipalities can request notations on public land to register interest in gravel, similar to the Alberta Transportation gravel reservations. For example the GoA, primarily through Alberta Transportation, has 781 protective and consultative notations in the province related to sand or gravel; rural municipalities 10

18 have three consultative notations related to sand or gravel. 11 Developing directives can also clarify how costs to the taxpayer can be better managed. For example, if Alberta Transportation is developing a pit, the provincial timber damage fee is waived, whereas if a municipality is developing a pit, the provincial timber damage fees are assessed. In both cases the gravel is used for public works purposes. Recommendation 2 implies that the GoA will support rural municipalities in the same manner in which it manages its own aggregate interests and costs. It is important to understand the differences and use of directive and guideline tools. Directives are enforceable and are backed by regulatory authority; they are a formal means to implement regulation or policy. Directives are appropriate where consistency across a region or the province is important. Guidelines are also a means to implement regulation and policy, but are informal, used in situations needing adaptability, innovation and discretion. Governments often apply guidelines as if they were policy and it is important these tools are developed and used with proper context and authority. The directives and guidelines should include: Directives Process for the use of land management systems such as the Geographic Land Information Management Planning System (GLIMPS) to establish rural municipality consultative and protective notations on aggregate reserves. Streamlined process and procedures for Surface Material Extraction (SME) and Surface Material Lease (SML) applications specific to rural municipalities, reflecting the non-commercial use of the land and resource. Establishing a 25 year lease term for municipal non-commercial pits to represent security of supply and reduced administration. Process and clarity for municipality access to gravel deposits on municipal road allowances. Guidelines Streamline the business section of the Conservation and Reclamation Business Plan (CRBP) or Activity Plan by removing requirements more applicable to commercial operations rather than municipal operators. Establish flexibility on the frequency of the CRBP or Activity Plan updates assuming longer term leases are issued to municipalities. Establish SME Permit and SML application review and decision timelines. Some municipalities are experiencing delays in approvals for applications/registrations on both public and private land respectively. Indications are the working relationship between ESRD and the municipalities are generally good, the approval requirements, environmental assessments and mitigation requirements are greater than what municipalities previously experienced. Therefore, more applications are being returned from provincial authorities requesting additional assessments or 11 M. Poscente and K. Kurjata, Got Gravel? Strategies to Secure Gravel for Rural Municipalities - Part 2 - Technical Report, AAMDC, September 2013, Table 2 11

19 supplemental information. The costs of meeting current environmental standards are escalating. Cost benefit analysis is effective to assess the benefits of acquiring and operating a gravel pit, versus purchasing aggregate from commercial operators and having them carry the environmental and regulatory responsibilities. Recommendation 3: Rural municipalities should conduct a cost benefit analysis against options to determine if acquiring and operating a pit, and assuming the inherent environmental management cost and liability, are efficient in the long-term. Trucking gravel to a project accounts for the greater portion of the cost of gravel supply. Trucking costs will be incurred whether the pit is commercially owned or operated by the municipality. Environmental management costs include aspects such as pre-disturbance site assessments and studies, application requirements, environmental regulatory requirements, liability for contamination and reclamation liability. Environmental costs are incurred whether a pit is on public or private land. Administration costs will apply on public land pits for volume tracking and annual reporting requirements. Using cost benefit analysis a municipality can determine if, over the long-term, it is efficient to incur the environmental management cost and administration costs over other options. Municipalities have a number of options to acquire aggregate. Weighing the various considerations that coincide with each option can help determine the most suitable means to address aggregate need. Some examples include: A municipality permitting and operating its own private land or public land pit should consider: o Capital costs of purchasing private land or fees paid to the land owner. o Cost associated with environmental assessment and application/registration for either public land or private land respectively. o Financial liability for reclamation on either public or private land pits. o Contamination liability on either public land or private land pits (e.g. diesel spills, asphalt plant operations, etc.). o On public land, timber damage fees and withdrawal and consent fees if encumbrances exist such as a Forest Management Agreement or grazing lease. A municipality can contract a commercial operator to develop municipal aggregate reserves and operate a municipal owned pit. This would mean: o The municipality would hold the Surface Materials Lease. o The municipality maintains strategic aggregate reserves for future public works, but contracts out the operation and management of the pit, with the aggregate solely directed to public works projects. o The municipality can assign a contractor as an agent to develop and submit regulatory requirements such as plans, notices, annual reports, annual returns etc. o Contractual agreements and financial security would manage reclamation liability. o General liabilities can be covered by the contractors insurance. o Contamination liabilities can be covered by contractor s insurance under the contract terms. 12

20 o Fees are negotiated based on fixed annual management fees, volume fees or a combination of fixed annual management fees and volume. A municipality can purchase aggregate through long-term contracts (5 to 10 year terms) with commercial operators: o The municipality relies on the commercial operator to secure supplies to meet minimum long-term contractual obligations. o May be implemented in addition to one of the other options as a hedge in future pricing. Alternately, a municipality can purchase aggregate through tender on a project or annual basis. In this case, the municipality would rely on the market to acquire aggregate at the best price at the time through competitive processes. Municipalities can operate Regional Pits: o Municipalities would collaborate on the development of regional pits. o Administrative costs, operating costs and liabilities are shared under the terms of a contract or a memorandum of understanding. o One municipality would be the lead and hold the lease or registration. There is no right or wrong approach and there may be additional options to consider. The best strategy may be a mix of options that enable municipalities to be responsive to changing needs while managing their average cost of gravel over time. The most important factor is the certainty of future supplies of gravel within reasonable distances to projects. Planning Gaps The most effective means of ensuring supply and managing the future costs is to be aware of regional gravel deficits and surpluses and to develop strategies to acquire gravel reserves. It is essential to conduct an assessment of aggregate availability in a region to understand the challenges associated with community growth and infrastructure maintenance needs into the future. For example, the Lower Athabasca Region has the highest population of rural municipalities, escalating growth associated with oil sands development and the least amount of gravel availability in the province 12. Demands associated with providing community infrastructure, industrial development and projects such as the twinning of highway 63 will rapidly use up available gravel supplies. Commercial operators are supplying gravel by rail at the Conklin siding, new industrial rail sidings are being developed to support the import of gravel and other products, and some operators are exploring opportunities to mine local underground limestone deposits for use as aggregate. The approved Lower Athabasca Regional Plan lacks any strategies to manage the looming aggregate shortfalls, nor acknowledges the aggregate shortages in the profile description of the region. The regional plan simply states that aggregate allocation will continue to occur as per the allocation policy. The plan does not address future needs or the future land use decisions required to respond to the actions being undertaken by the private sector to supply gravel to the region. 12 M. Poscente and K. Kurjata, Got Gravel? Strategies to Secure Gravel for Rural Municipalities - Part 2 - Technical Report, AAMDC, September

21 Aggregate is being transported across the province to meet supply demands. Gravel is moving by rail from the Whitecourt area to supply the Edmonton and area and to Conklin to supply oil sands development. Regions will need to address the infrastructure requirements to move aggregate long distance by rail or road. Recycling of aggregate will become economical and more common, especially in the urban centers. Recommendation 4: Rural municipalities participate actively in regional planning processes through the Land-use Framework Regional Advisory Committees to raise awareness of aggregate needs, support future community growth and develop strategies to ensure economical supply of aggregate for future public works purposes. The Land-use Framework is the GoA s new approach to managing our province's land and natural resources to achieve Alberta s long-term economic, environmental and social goals. Under the Land-use Framework, seven planning regions are established. Upon completion of the planning process, each region will have a strategic plan, approved by Cabinet under the Alberta Land Stewardship Act. Tools have been developed in the supplementary report, Provincial Aggregate Study - Part 2 - Technical Report that informs and portrays the status of aggregate availability by land-use planning region. The intent is for rural municipal representatives sitting on the Regional Advisory Committee to have base information for input into the planning process. When meeting with the Land Use Secretariat representatives as part of the stakeholder sessions for the project, it was unclear what the process is for consideration of aggregate management within regional plans. It is clear that the scale of planning is important. The regional plan can include strategies to manage aggregate. Lower level plans such as sub-regional plans or local land use plans are better for zoning or identifying potential aggregate reserves for public works purposes. Policy Summary The allocation policies and planning processes in place are conducive to gravel planning and allocation of gravel reserves for municipalities, so long as planners consider the need for gravel management. Lacking is clear direction and processes to implement aspects of the policies and planning in a consistent manner provincially. Currently, the Land Use Policies provides the best direction for setting the expectations of cooperation and planning between the provincial and local governments; however it does not provide specific procedures. There is concern if strategic aggregate management requirements are not incorporated into the regional planning process under the Land-use Framework it may not occur or be supported by government. This is because the Land Use Policies are void on lands where a regional plan has been approved. Cost is a reality of the aggregate business. Rural municipalities that acquire their own gravel reserves and operate pits will be subject to expenditures for exploration, regulatory requirements, environmental standards, pit operating costs, contamination liability and reclamation liability. Developing an aggregate reserve is subject to high up-front capital cost and inventory carrying cost (assuming crushing and stockpiling occurs). Each municipality will need to conduct their own financial analysis and make 14

22 decisions as to the value realized from acquiring and operating their own pits, versus purchasing aggregate through commercial operators. 15

23 Rural Municipality Aggregate Survey Summary The following is a summary, see Appendix 2 for the full survey results. Sixty-three of 69 rural municipalities completed the survey. Ten questions were developed to get an understanding of current aggregate needs within the rural municipalities. Though 91% of these municipalities responded, results are somewhat inconclusive. This occurs primarily where the number of rural municipalities in the planning region is low, and a non-response can significantly affect the average calculated. To overcome this, no averages were calculated for the regions, but only general comments about reoccurring themes. Current State According to the responses, 46% of rural municipalities do not have problems securing aggregate and do have reserves secured. Using only the first two questions of the survey as the indicator, it initially appears that aggregate deposit shortage concerns are not overwhelming through the province. Below is an example of the survey outcomes and the overall summary. 1. Does your Municipality have any problems securing reliable aggregate supplies for current public works projects? **DNR denotes Did Not Respond 16

24 Map 1. Provincial map of answers to survey question one 17

25 2. Does your Municipality have a strategic aggregate reserve to fulfill future public works maintenance and construction needs over the next 15 to 20 year period? **DNR denotes Did Not Respond 18

26 Map 2. Provincial map of answers to survey question two. 19

27 Questions three through eight relate to qualitative information on gravel sources, availability, and level of difficulty gaining approvals for pits. Generally 84% of rural municipalities indicated gravel was moderately to very abundant, with the majority of gravel sourced from public land at 33%. Private land sources accounted for 16%. Even though gravel at this point in time is relatively abundant, 66% of municipalities indicated delay (defined as over six months) in receiving approvals on public land pits and 61% indicated delays on approvals for private land pits. Causes of the delays are not clear; they could be due to incomplete information or workload backlogs at ESRD. Question nine and ten were text questions. Question nine asked what works well within the existing allocation process, and the answers varied; 40% of respondents did not answer the question, 32% indicated the Government was helpful in answering questions and the system is okay. The remainders of responses were suggestions and will be addressed subsequent to the next paragraph. Question ten asked what could be improved in the existing allocation process. A few themes emerged. Respondents were interested in: Tools for identification of unallocated resources First right of refusal of unallocated resources Having no 80 acre limit Obtaining first priority, above private acquisition, in allocation Streamlining the application process and undergoing less regulation Some sort of cost recovery program for aggregates Some suggestions were provided in the survey, which include: When a provincial pit is cleaned up, the rural municipalities receive more notice to be able to go in and crush the smaller remainder of gravel left over Better communication regarding notification of private companies applying for SME s A government approval system which is more efficient when working with rural municipalities and more available to help with questions First right of refusal for or other option to obtain old Alberta Transportation pits Analysis Answers from the survey could be considered somewhat inconclusive due to incomplete response rates. Only two planning regions had a 100% response rate; the Upper Athabasca and the Upper Peace. Subsequent to the survey filtering above, questions were further filtered to analyze for aggregate need by rural municipality. There are 25 rural municipalities who indicated they have problems securing aggregate reserves. Of these, 17 have indicated they have no strategic reserves. Filtering further, nine rural municipalities within the 17 have indicated they have low aggregate availability. Of these nine, there are three who also indicated aggregates within their rural municipality are in low abundance. The three rural municipalities who can be categorized (according to their survey answers) as in critical need of a strategic aggregate plan are the County of Stettler, Lamont County, and the Municipal District of Bonnyville. 20

28 When data was filtered to investigate problems securing aggregate plus no strategic reserves plus problems with SME applications, the rural municipalities of Brazeau, St. Paul, Lac Ste. Anne, and Bonnyville all answered to reflect problems. These rural municipalities also all manage private land pits. When asked about the activities plan, all indicated they often or sometimes encountered delays. Brazeau and St. Paul also manage pits on public land and have encountered delays within the application process. In comparison, those rural municipalities who indicated they had no problems securing aggregate, they did have reserves, and that aggregate was very abundant and available include Crowsnest Pass, MD of Peace, MD of Bighorn, and Starland County. The regions represented in this case are South Saskatchewan, Upper Peace, and Red Deer. Starland County was also the only rural municipality who applied for SME s with no problems and managed private and public land pits with no issues. 21

29 Rural Municipality Aggregate Management Municipalities differ on their development permit application requirements for gravel pits. There are grey areas where it is unclear if it is the province s or municipality s mandate to manage land or water issues; documenting the differences was out of scope for this report. A sample revealed there is a wide range, from municipalities requiring copies of documents completed for the provincial approval, to requiring environmental impact assessments independent of what may have been conducted for provincial approvals. For example, Rural municipalities play a critical role in aggregate management through approval of the development permit. Yellowhead County requires a development permit applicant to submit the approved Conservation and Reclamation Business Plan or Activity Plan approved by the province. The MD of Opportunity and Lac Ste Anne County require environmental impact assessments to be submitted, including detailed hydrological assessments. Some municipalities, such as Strathcona County, require 110 percent of the reclamation cost for security, even though the applicant was required to submit 100 percent of the reclamation cost as security to the GoA. These examples portray a duplication of effort and requirements between the two levels of government, and represent a significant cost to the operator. Additionally, the terminology used can confuse matters. For example environmental assessment and an environmental impact assessment mean two different things under the Environmental Protection and Enhancement Act. An applicant will probably proceed with the requirements as defined by provincial legislation, when that may not have been the intent of the municipality. Rural municipalities are granted extensive authority under the Municipal Government Act to manage land and water. Local government involves addressing concerns regarding gravel development such as environmental effects, groundwater impacts, land productivity, noise, dust etc. Municipalities should be aware of the requirements and conditions of provincial approvals, which are usually in place prior to the development permit, and not duplicate them. Municipalities must be aware that when requesting assessments and environmental studies, once the assessments are received, they must be reviewed to ensure the procedures used are reasonable and the conclusions are accurate. Municipalities often will not have staff with the proper qualifications to conduct such reviews and may have to rely on a third party review to validate the reports. This will add additional cost to the process. Recommendation 5: The Government of Alberta should work closely with rural municipalities towards development of a consistent bylaw framework for aggregate related development permit application requirements that considers the assessments, mitigation strategies and regulatory conditions approved by the province and reduces the duplication between provincial approvals and development permit approvals on both private and public land. There is an opportunity for better collaboration between the two levels of government on the approval of gravel pits, particularly those on private land. Where the provincial requirements and codes of practice are not addressing the common issues being realized by the majority of the municipalities, the provincial regulatory requirements should be modified. This would provide a higher degree of confidence by municipalities that environmental, land and water issues are being adequately addressed. 22

30 This enables municipalities to focus the development permit on localized site specific concerns that are not effectively addressed by provincial requirements (e.g. noise, dust, adjacency impacts etc.). Acting on this recommendation would clarify environmental and natural resource management roles within approval processes and reduce redundancy between the provincial and municipal approvals. 23

31 Closing Summary The geographical analysis 13, corroborated by the municipality survey results, suggests that three of the eight planning regions, the South Saskatchewan, North Saskatchewan and Lower Athabasca, will be in a deficit aggregate supply situation as provincial growth and economic development continues. The approach suggested in this report calls for inclusion of aggregate management strategies within the regional plans. The strategies should include one or more of the following: Identifying potential public land gravel sources and reserving the use of them for future public works projects. Ensure land planning addresses future infrastructure and transportation needs to move aggregate from areas of high supply to areas of low supply and high demand. Planning for potential future land uses such as quarries to fulfill aggregate demand. Recycling aggregate. Alberta s policies for the allocation of aggregate are adequate, however there is a policy gap regarding implementation. Recommendations in this report are for procedural changes to improve clarity and effectiveness of the allocation policy. Changes to policy intent and outcomes are not required. There are few directives or guidelines established outlining the process and procedures for allocation of aggregate to rural municipalities. Developing directives and guidelines would help improve the consistency of government decisions and provide clarity on processes. This includes the use of the government Geographical Land Information Management System to record land notations where rural municipalities have an expressed interest in potential or proven aggregate reserves. Expenses are associated with exploring for, acquiring, operating and reclaiming a gravel pit. Environmental and regulatory requirements are increasing. Municipalities are encouraged to conduct cost benefit analysis to determine the best option, or mix of options for gravel supplies that is effective and efficient for their situation. Rural municipalities play a critical role in aggregate management through approval of the development permit. There are grey areas where it is unclear if it is the province s or municipality s mandate to manage land or water issues. There are instances where rural municipalities duplicate assessment requirements and approvals already issued by provincial authorities. Recommendation is made in this report for the rural municipalities to harmonize their bylaws governing aggregate related development permits and avoid duplication with government approvals. The Code of Practice for Pits authorized under the Environmental Protection and Enhancement Act could be updated at the same time to cover the common concerns municipalities have related to gravel pit applications. A streamlined approval processes enables the development permit process to focus on addressing localized, site specific issues. Implementing the recommendations made in this report sets the stage for better aggregate management in Alberta, specifically for the identification and allocation of strategic reserves to 13 M. Poscente and K. Kurjata, Got Gravel? Strategies to Secure Gravel for Rural Municipalities - Part 2 - Technical Report, AAMDC, September

32 accommodate future public works needs. Competition for gravel in Alberta is high because of the significance of its use in the construction and maintenance of both public and private sector infrastructure. Commercial operators in Alberta play a key role in supplying aggregate to support both private and public sector uses. Eighteen of the 69 rural municipalities in Alberta rely on commercial operators for the majority of their aggregate needs. The approaches recommended are cooperative, enabling the public, government and commercial interests to be met 25

33 Appendices APPENDIX 1 APPENDIX 2 Policy Analysis Tables Rural Municipality Survey Results and Analysis 26

34 Appendix 1: Policy Analysis Tables Analysis of provincial and federal legislation was conducted to understand the current state of policy and the influence of policy on rural municipality acquisition of strategic aggregate reserves, pit operations and reclamation requirements. Provincial and federal legislation was assessed under the categories of: exploration, acquisition & operations, and reclamation These categories were selected to represent the main stages in the life cycle of a gravel pit and the applicability of policy to those stages. Specific policy documents are noted in the table under the legislation that provides the policy authorization. For example, the Alberta Aggregate (Sand and Gravel) Allocation Policy for Commercial Use on Public Land is discussed under the Public Lands Act. The tables provide: Name of the provincial or federal legislation. Applicability of the policy to private land, public land, or both. A description of the legislation intent (specific to a section of the legislation where applicable). Comments to establish the context of the legislation. Comments on the significance of the legislation for rural municipalities. Cost impacts of the legislation to rural municipalities. The tables can be used as reference by municipalities to understand the provincial and federal requirements for aggregate planning, exploration authorities, development authorities or reclamation certificates. Got Gravel? Part 1-Summary Report 27

35 28

36 AGGREGATE EXPLORATION LEGISLATION Law of Property Act Government of Alberta s First Nations Consultation Policy on Land Management and Resource Development LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES NO Sec. 58 Declares that sand and gravel is owned by the surface landowner and that it is not a mine, mineral or valuable stone NO YES In accordance with The Government of Alberta s First Nations Consultation Policy on Land Management and Resource Development, proponents of sand gravel projects on public land are assigned procedural aspects of consultation COMMENTS Operators must negotiate with private landowners for the right to explore and develop sand and gravel on their land There are no size restrictions for gravel pits located on private land Private lands are considered to be taken up and are not subject to First Nations Consultation Public lands exploration programs are submitted to ESRD for an Assessment Request on whether consultation is required. However, they are usually NOT required to complete consultation because of their minimal impact SIGNIFICANCE TO RURAL MUNICIPALITIES No options are available to rural municipalities when landowners refuse to allow gravel operations on their land Rural municipalities may be at a financial disadvantage with commercial operators when competing for gravel pits on private land NOTE: For conversion of an SME program to a SML consultation is required COST IMPACTS Cost of obtaining access permission from private landowners Potential for First Nations to request fees associated with site visits, and other items 29

37 LEGISLATION Water (Ministerial) Regulation Code of Practice for Watercourse Crossings LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES The Codes of Practice for Watercourse Crossings provides requirements for construction, maintenance, replacement or removal of all or part of a watercourse crossing (e.g. for access) COMMENTS Watercourse crossing is defined generally as crossings over a waterbody Waterbody is defined generally as having defined bed and banks Bed and shore is defined in Sec. 17 of the Survey Act generally as land that has been covered by water so long that vegetation is gone or the vegetation has a distinct character (ie> aquatic) or that the soil has a distinct character SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalitymanaged pits are required to follow the Codes of Practice for Watercourse Crossings On private lands, watercourse crossings are likely already in place Typically, exploration programs require only temporary waterbody crossings and the Codes of Practice for Watercourse Crossings may not apply. When in doubt, rural municipalities should contact local ESRD offices for advice COST IMPACTS Operational cost to meet requirements of the Code 30

38 LEGISLATION Wildlife Act and Wildlife Regulations LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES Sec. 36 Prohibits the destruction or disturbance of a wildlife house, nest or den of prescribed wildlife Provides for conservation and management of wildlife species (mammals, birds, reptiles) The provincial Wildlife Act is the dominant Act for managing Species at Risk on land in Alberta The federal Species at Risk Act (SARA) partners with Alberta on strategies and programs COMMENTS Wildlife Regulation lists all prescribed wildlife For public land, all SME applications are referred to the Fish and Wildlife Division for review. Operating conditions may include requirements for mitigation of potential impacts to wildlife and habitat For public land, the Fish and Wildlife Information Management System (FWMIS) is the GoA s fisheries and wildlife database and a required referral during the application process. It includes restrictions to use of public land (e.g. Trumpeter Swan buffers, Ungulate winter timing constraints) SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalities have the opportunity to work with Fish and Wildlife upfront when planning exploration programs, including addressing requirements under Federal legislation (Canada Wildlife Act, Migratory Birds Convention Act, Species at Risk Act, Fisheries Act) COST IMPACTS Operating plans preparation 31

39 LEGISLATION Canada Wildlife Act (Federal) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES The Canada Wildlife Act is binding on all lands in Canada and allows for the creation, management and protection of wildlife areas for research, conservation or interpretation The Wildlife Area Regulations prohibits activities that could be harmful to species and to their habitat, unless a permit is issued indicating the permitted activity COMMENTS The Canada Wildlife Act and Wildlife Area Regulations are binding on all provinces and require cooperation between governments to deliver requirements SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalitymanaged exploration programs are subject to regulatory requirements of the Canada Wildlife Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations COST IMPACTS Operating plans preparation 32

40 LEGISLATION Species at Risk Act (SARA) (Federal) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES The purposes of this Act are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species, and to manage species of special concern to prevent them from becoming endangered or threatened COMMENTS The Act is binding on lands (public or private) located in all provinces Operators should consult with local Fish and Wildlife offices for species that may be listed under the SARA NOTE: Alberta has developed a Species at Risk program that is tied to federal/provincial efforts to conserve and recover species at risk in jurisdictions across Canada Refer to Alberta s Strategy for the Management of Species at Risk SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalitymanaged exploration programs are subject to regulatory requirement of the Species at Risk Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations COST IMPACTS Operating plans preparation 33

41 LEGISLATION Migratory Birds Convention Act (Federal) Fisheries Act (Federal) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES Prohibits disturbance or destruction of nests of migratory birds (e.g. robins, hummingbirds, swallows) YES YES Sec. 35(1) - Prohibits the harmful alteration, disruption or destruction of fish habitat (HADD) COMMENTS Where migratory bird nests are observed, NO clearing should occur between April 1 June 30 Operators may wish to contact local Fish and Wildlife office for advice or assistance to avoid potential issues To avoid conflict, land clearing or timber salvage should be done during non-nesting periods (July 1- March 31) Exploration programs do not typically create a HADD Recommend consulting with local Fish and Wildlife Division office for advice and assistance SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalitymanaged exploration programs are subject to regulatory requirement of the Species at Risk Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations Rural municipalitymanaged exploration programs are subject to regulatory requirement of the Fisheries Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations COST IMPACTS Operating plans preparation 34

42 LEGISLATION Fisheries Act (Federal) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES Sec. 35(2) Permits the Minister of Fisheries and Oceans to authorize HADD YES YES Sec. 36 Prohibits depositing any deleterious substance into fish-bearing streams and streams that flow into them COMMENTS Exploration programs do not typically create a HADD Current policy/practice restricts in-stream aggregate mining SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalities may apply for authorization of a HADD to conduct highvalue exploration programs Policy prohibitions on aggregate mining eliminate any need to explore COST IMPACTS Application preparation Navigable Waters Protection Act (Federal) YES YES Protects the rights of Canadians to use all waterbodies that are capable of being navigated (e.g. canoes, boats) Aggregate exploration will rarely (if ever) interfere with navigation. If access to a pit crosses major steams the legislation may apply Exploration access should avoid crossing fish bearing streams and tributaries Rural municipalitymanaged exploration programs are subject to the Navigable Waters Protection Act Operating plans preparation Approvals (Sec. 35) are required where operations interfere with navigation 35

43 LEGISLATION Public Lands Act LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION NO YES Sec. 20(1)(a)(i) - Provides authority to issue a Surface Materials Exploration Lease (SME) authorization to investigate natural resources (sand and gravel) COMMENTS SME authorizations to commercial operators is guided by the The Alberta Aggregate (Sand and Gravel) Policy for Commercial Use on Public Land (Policy) Under the Policy, SME requirements for commercial operators are: Issued for 180 days Maximum 320 acres for exclusive rights to explore and to convert up to 80 acres to a Lease Greater than 320 acres no exclusive rights Must file for conversion to a lease no later than 10 days after SME expiry or the area is re-opened for other operators to explore SIGNIFICANCE TO RURAL MUNICIPALITIES The Policy also includes: priority for gravel to public works projects the ability for municipalities to identify sources of gravel for public works purposes The current ESRD practice for exploration to municipalities is patterned after the exploration process for commercial operators. COST IMPACTS Rural municipalities are exempt from payment of application fees 36

44 LEGISLATION Public Lands Act Regulations (PLAR) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION NO YES Sec. 11(2)(a) Requires that operators provide security for SME s NO YES Sec. 11(2)(b) - Requires operators to get consent from disposition holders when lands are already under disposition NO YES Sec. 12(2) - Provides authority to issue operating conditions NO YES Sec. 21(2)(e) - Provides authority to require reclamation of an authorization COMMENTS SME approvals include conditions on how operators will conduct exploration activities (e.g. timing restrictions, reclamation requirements) Because of the minimal impact of exploration programs, reclamation requirements are relatively easy to meet (e.g. backfill and level holes, re-spread available topsoil, slash any leaning timber) SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalities may use the Exploration Dispute Regulation process when consent is denied by existing disposition holders (see below) When rural municipalities have questions or concerns about operating conditions, they may wish to discuss this with local ESRD offices SME holder must apply for and receive a Letter of Closure upon completion of operations COST IMPACTS Rural municipalities are exempt from payment of security Costs will increase when dispute resolution is required Letters of Closure have no application fee 37

45 LEGISLATION Exploration Dispute Regulation (Public Lands Act) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION NO YES Provides a process to resolve disputes between exploration approval holders (e.g. SME s) and agricultural lease holders (grazing leases, farm development leases) NO YES Sec. 4(1) Requires an exploration approval holder (SME) to provide an existing agricultural lease holder (grazing lease, farm development lease) a copy of the approval at least 5 days prior to accessing the land NO YES Sec. 4(2) Requires an exploration approval holder to get consent from the agricultural lease holder COMMENTS The process resolves disputes on matters related to: Operational and land use concerns Consents Compensation When consent is denied by an agricultural lease holder, an exploration approval holder can apply to the Surface Rights Board for a right of entry (refer to Sec. 19(1) below) SIGNIFICANCE TO RURAL MUNICIPALITIES Commencement of operations will be delayed when dispute resolution is required Commencement of operations will be delayed COST IMPACTS Costs will increase when dispute resolution is required Costs will increase when dispute resolution is required Costs will increase when dispute resolution is required 38

46 LEGISLATION Exploration Dispute Regulation (Public Lands Act) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION NO YES Sec. 5 - Provides for either an exploration approval holder or an agricultural lease holder the right to request a review based on operational or land use concerns NO YES Sec. 19(1) Provides for an exploration approval holder to apply to the Surface Rights Board for a right of entry order when an agricultural lease holder refuses consent COMMENTS Sec. 1 provides definitions of an agricultural lease holder and for operational land use concern An agricultural lease holder is a person who has a grazing lease or a farm development lease An operational land use concern is defined as a concern that is related to the exploration holder approvals operations on or use of the agricultural land SIGNIFICANCE TO RURAL MUNICIPALITIES A review under Sec. 5 is limited to the review of the impacts that the SME approval has on agricultural operations (e.g. timing - interfere with livestock management or seeding of crops, infrastructure cutting fences, etc.) it does not include a review of the approval to allow exploration to occur Commencement of operations will be delayed Commencement of operations will be delayed COST IMPACTS Costs will increase when dispute resolution is required Costs will increase when dispute resolution is required 39

47 LEGISLATION Exploration Dispute Regulation (Public Lands Act) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION NO YES Sec. 20(2) Provides an exploration holder or an agricultural lease holder the right to apply to the Surface Rights Board for a compensation order in respect of access COMMENTS Rural municipalities are required to pay for damages that occur during completion of exploration operations When compensation cannot be resolved, either party can apply to the Surface Rights Board for resolution SIGNIFICANCE TO RURAL MUNICIPALITIES The Surface Rights Board will determine compensation rates on various factors such as: nature of the program (type, duration, etc.) amount of land involved level of disturbance past compensation orders under similar circumstances other relevant factors that the Board considers appropriate Commencement of operations will be delayed COST IMPACTS Costs will increase when dispute resolution is required 40

48 LEGISLATIVE APPLICATION Private Public Land Land LEGISLATION DESCRIPTION Forest Act NO YES Provides requirements when timber may be damaged during operations COMMENTS Options include: Timber salvage where volumes are sufficient Timber waiver where volumes are insufficient or salvage is impossible (e.g. scattered, very poor access) SIGNIFICANCE TO RURAL MUNICIPALITIES Avoidance techniques may be used to eliminate or reduce impacts to timber COST IMPACTS Timber damage assessment fee 41

49 42

50 AGGREGATE ACQUISITION AND OPERATION LEGISLATION Alberta Land Stewardship Act LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Provides authority to establish integrated planning regions and prepare regional plans that allow the government of Alberta to provide direction on economic, environmental and social objectives plan for the future provide for coordination of decision-making Sec. 15 Provides that Regional Plans bind the Crown, local government bodies, decision-makers and all other persons except that title holders may apply for variances (Sec. 15.1) Regional planning over a 50 year period and the limitations of the provincial aggregate inventory pose challenges to develop long term strategies for aggregate (e.g. The Lower Athabasca Regional Plan focuses more on current processes for allocation and less focus on direction for future use and conservation) The Lower Athabasca Regional Plan is approved as of August, The South Saskatchewan Regional Plan is underway Regional plans for the other five regions have not started SIGNIFICANCE TO RURAL MUNICIPALITIES Active participation in development of Land Use Framework (LUF) Regional Plans provides the opportunity for municipalities to advocate for: municipal aggregate interests to be recognized identification of aggregate reserves for future public works uses Rural municipalities need to be active participants in LUF planning initiatives at the regional, sub-regional, and local levels to ensure their needs are met COST IMPACTS May require investment in testing potential gravel sources to confirm viable quantities and quality. 43

51 LEGISLATION Law of Property Act Municipal Government Act LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES NO Sec. 58 Declares that sand Operators must negotiate and gravel is owned by the with private landowners for surface landowner and that the right to explore and it is not a mine, mineral or develop sand and gravel on valuable stone their land YES YES Provides authority to municipal authorities to develop and implement plans, by-laws, permitting processes for land use and development including authority to provide conditions for operating projects (e.g. Municipal Development Plans, Area Structure Plans, Land Use Bylaws) There are no size restrictions for gravel pits located on private land Aggregate projects must obtain development permission from municipal authorities to complete projects in accordance with approved land use plans and by-laws When aggregate projects are in conflict with municipal plans, operators may be required to amend plans and by-law amendments SIGNIFICANCE TO RURAL MUNICIPALITIES No options are available to rural municipalities when landowners refuse to allow gravel operations on their land Rural municipalities may be at a financial disadvantage with commercial operators when competing for gravel on private land Through their respective planning and development processes, rural municipalities may have some advantage to identify and locate aggregate areas to suit their needs Rural municipality plans and by-laws need to be aligned with approved LUF plans COST IMPACTS Cost of obtaining access permission from private landowners or the purchase of land with gravel reserves. 44

52 LEGISLATION Municipal Government Act LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Gravel under municipal roads: Sec. 16(1) Provides that the title to roads belongs to the Crown Sec. 18(1) and 18(3) Provides for municipalities to control roads in their municipality but does not give them control over the mines and minerals under roads The ownership of sand and gravel under roads remains with the Crown (i.e. Alberta Transportation) Alberta Transportation currently reserves sand and gravel under municipal road allowances for their use SIGNIFICANCE TO RURAL MUNICIPALITIES In response to AAMDC resolution 15-12F (2012), Alberta Transportation has indicated they are prepared to consult with municipalities when a private company wants to negotiate use of the gravel Further to only consulting with Alberta Transportation, rural municipalities could request or develop a resolution to enter into business agreements with Alberta Transportation when they want to use the gravel for public works projects COST IMPACTS Yes Yes Sec Provides authority to each council to pass a community aggregate payment levy by-law The levy raises revenue for payment of infrastructure and other costs that are impacted by gravel operations Development of the by-law is optional 45

53 LEGISLATION Municipal Government Act LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Sec. 622 Provides authority RESTRICTION: Land use for municipalities to policies developed under establish land use policies Sec.622 do not apply in and requires that municipal regions within the meaning statutory plans and land use of the Alberta Land by-laws and any actions Stewardship Act (i.e.> lands taken must be consistent subject to LUF Regional with the land use policies Plans) Public land use and development is impacted by municipal land use policies inasmuch as development on public land is approved through the municipal permitting process that must be consistent with the land use policies. SIGNIFICANCE TO RURAL MUNICIPALITIES The current policy, Land Use Policies is approved as of November 6, 1996 Sec. 6.2 of the 1996 Land Use Policies encourage municipalities to identify areas where extraction of aggregate should be a primary land use Rural municipalities have the opportunity to leverage the 1996 Land Use Policies to address some of their aggregate issues and concerns COST IMPACTS 46

54 LEGISLATION Public Lands Act (PLA) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLA Sec Provides Approvals to commercial authority to issue a Surface operators is guided by the Materials Lease (SML) Alberta Aggregate (Sand and approval Gravel) Policy for Commercial Use on Public Land (Policy) Under the Policy, SML allocation options for commercial operators are: Up to 80 acres (cumulative within a 6-mile radius) for non-competitive allocations Greater than 80 acres for competitive allocations All allocations require a Conservation and Reclamation Business Plan completed within 6 months of approvalin-principle SIGNIFICANCE TO RURAL MUNICIPALITIES The Policy also includes: priority for gravel to public works projects the ability for municipalities to identify sources of gravel for public works purposes The current practice for allocation to municipalities is patterned after the allocation process for commercial operators. NOTE: During any review, rural municipalities are strongly encouraged to work within key policy elements of fair, comprehensive and timely allocations that optimize benefits for Albertans, including interests of commercial operators COST IMPACTS Rural municipalities are exempt from payment of application fees 47

55 LEGISLATION Public Lands Act (PLA) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLA Sec. 11 Provides Classifications and best authority to classify and use must be aligned with declare best use of public LUF regional plans at the land regional, sub-regional, and local levels NO YES PLA Sec. 82 Provides authority for the withdrawal of land containing surface materials from an existing lease when consent is denied from the existing leaseholder (e.g. grazing lease) and provides a means to resolve compensation issues NO YES PLA Sec. 54 Provides a list of prohibitions that cause loss or damage to public land including garbage accumulation, harmful structures, actions harmful to watershed capacity and the beds and shores of waterbodies, creation of conditions that result in soil erosion The Director is able to withdraw land from a lease when he is satisfied the land contains sand and/or gravel When compensation issues are unresolved, either party may apply to the Land Compensation Board for resolution SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalities need to be active participants in LUF planning initiatives at the regional, sub-regional, and local levels to ensure their needs at met A process is available to municipalities and agricultural lease holders when consent is denied and when compensation cannot be resolved Commencement of operations will be delayed when dispute resolution is required While sand and gravel enforcement actions do not usually cite Sec. 54 prohibitions, they are regulatory in nature and rural municipalities need to be aware of them COST IMPACTS Rural municipalities are responsible for paying compensation Costs will increase when dispute resolution is required 48

56 LEGISLATION Public Lands Administration Regulations (PLAR) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLAR Sec. 9(2)(a) Requires Acceptable forms of security that operators provide are cash, irrevocable letter security for SMLs of credit or letters of guarantee, redeemable term deposits, certificate of deposit, redeemable guaranteed investment NO YES PLAR Sec. 9(1)(e) - Requires operators to get consent from disposition holders when lands are already under disposition NO YES PLAR Sec Provides authority to issue terms and conditions to direct lease operations certificate Consent is most commonly required where Forest Management Agreements (FMA) or grazing leases are established on the land. SML s are issued with operating conditions that are subject to enforcement actions when noncompliance occurs. A priority SML operating condition is the requirement to adhere to a Conservation and Reclamation Business Plan (CRBP) as required by the Alberta Aggregate (Sand and Gravel) Policy for Commercial Use on Public Land (June, 2006) SIGNIFICANCE TO RURAL MUNICIPALITIES Refer to Public Lands Act Sec. 82 where an option is available to municipalities and agricultural lease holders to resolve conflicts regarding use of aggregate on existing dispositions Municipalities have an opportunity to negotiate terms and conditions in CRBP s that are tailormade to meet individual needs over the longer term Rural municipalities are strongly encouraged to work with local ESRD offices during development of their CRBP s COST IMPACTS Rural municipalities are exempt from payment of security 49

57 LEGISLATION Public Lands Administration Regulations (PLAR) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLAR Sec. 18(1) - Provides Renewal is available at any for early renewal time after one half the current term but not later than 1 year before expiry NO YES PLAR Sec. 18(4)- Provides renewal requirements, including that renewal may be refused if the disposition is not being used NO YES PLAR Sections provide requirements for Surface Materials Leases on public land In accordance with the Alberta Aggregate (Sand and Gravel) Policy for Commercial Use on Public Land (June, 2006), renewals are based on performance of the lessee Lessee performance is measured against commitments made in the approved Conservation and Reclamation Business Plan (CRBP) SIGNIFICANCE TO RURAL MUNICIPALITIES SML s are currently issued for no more than 10 years Continuous early renewal may provide some benefits to rural municipalities: Tenure security of no less than 5 years Increased ability to amend plans according to changing needs Municipalities have an opportunity to negotiate terms and conditions in CRBP s that are tailormade to meet individual needs over the longer term and providing greater certainty that lessee performance will meet renewal requirements COST IMPACTS Rural municipalities are exempt from payment of renewal application fees 50

58 LEGISLATION Public Lands Administration Regulations (PLAR) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLAR Sec. 111 Restricts the SML s are currently issued term of a Surface Materials for no more than 10 years Lease to 25 years NO YES PLAR Sec. 112 (1) (3) Provides authority to require approval for completion of a detailed operating plan and prohibits commencement of operations until a plan is approved NO YES PLAR Sec. 113 Requires operators to provide annual reports on volumes of gravel removed NO YES PLAR Sec. 114 Requires operators to pay a royalty for gravel removed Conservation and Reclamation Business Plans (CRBP) are required operating plans for gravel pits on public land SIGNIFICANCE TO RURAL MUNICIPALITIES PLAR authorizes lease terms up to 25 years. Rural Municipalities may request longer term leases Rural municipalities are required to complete a CRBP and have it approved before operations can commence Rural municipalities are exempt from royalty payments for gravel used for public works projects COST IMPACTS Municipalities do not pay annual lease rental 51

59 LEGISLATION Public Lands Administration Regulations (PLAR) Environmental Protection and Enhancement Act (EPEA) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLAR Sec. 115 Provides for The Section is rarely, if ever, removal of gravel from an used to obtain gravel existing gravel lease for construction or maintenance of public roads or other public works including: Removal by Alberta Transportation or Alberta Infrastructure without having to pay compensation to the leaseholder, Other persons who may be required to pay compensation to the leaseholder YES YES EPEA Sec. 2 outlines the purpose of the Act to support and promote the protection, enhancement and wise use of the environment A comprehensive Act that provides regulatory requirements on all land (public and privately-owned land) EPEA is binding on the Crown SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalities may wish to discuss this Section further ESRD However, it is anticipated that extreme circumstances must exist prior to ESRD invoking their authority provided in the Section, with or without payment of compensation, as it may raise significant concerns and conflicts with current leaseholders who have incurred major expenses to develop their leases Municipally-managed pits are subject to regulatory requirements of EPEA COST IMPACTS 52

60 LEGISLATION Environmental Protection and Enhancement Act (EPEA Conservation and Reclamation Regulation (EPEA) Code of Practice for Pits LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES NO EPEA Sec. 38 Provides authority for development of Regulations, including regulations that authorize development of the Code of Practice for Pits YES NO EPEA Sec. 3(1) and (2) Provides for the adoption of the Code of Practice for Pits, including that activities requiring a registration (gravel pits) must comply with them YES NO EPEA Sec exempts local authorities from payment of security YES NO Established under the Conservation and Reclamation Regulation The Code of Practice for Pits regulates gravel pits greater than 5ha (12.5 ac), but does not include gravel pits on public land A Guide To The Code Of Practice For Pits (2004)is available to operators at: a/info/library/5997.pdf SIGNIFICANCE TO RURAL MUNICIPALITIES Municipally-managed pits on private land are subject to the requirements of the Code of Practice for Pits Municipally-managed pits on private land are subject to the requirements of The Code Of Practice For Pits COST IMPACTS No reclamation security fees for municipalities YES NO Part 2 Requires pit operators to carry out activities according to the Code of Practice for Pits The Code applies to gravel pits on private land 53

61 LEGISLATION Code of Practice for Pits LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES NO Part 3 Requires gravel operators to obtain a Registration and an Activity Plan, prior to commencement of activity YES NO Part 4 Provides requirements for monitoring pit water YES NO Part 5 Provides requirements for conservation and reclamation YES NO Part 6 Provides reporting requirements of pit operators YES NO Part 7 Provides requirements for record keeping Activity Plan requirements are outlined in Schedule 2 of the Code of Practice for Pits No release of pit water outside the pit is allowed unless it meets the monitoring standards and release limits established in the Code of Practice for Pits The section includes specific operational measures to protect soil (e.g. stockpiling topsoil, subsoil, overburden) conduct reclamation (e.g. burial of waste, proper soil replacement) Reporting requirements include: Any contraventions 5-year reports on activity Final reclamation report Record keeping requirements are provided in Schedule 5 of the Code of Practice for Pits SIGNIFICANCE TO RURAL MUNICIPALITIES COST IMPACTS 54

62 LEGISLATION Historical Resources Act LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Requires that historic resources are preserved and protected Sec. 37(2) Provides for completion of a historic resources impact assessment on lands where proposed activity is likely to threaten a historic resource Forest Act NO YES Provides requirements when timber on public land may be damaged during operations Policy requires that proposed projects are reviewed against the Listing of Historic Resources listing maintained by Alberta Culture Lands listed with a Historical Resource Value (HRV) are subject to an Application for Historical Resources Act Clearance Lands listed with an HRV of 4 or 5 may require an Historical Resources Impact Assessment (HRIA) Options include: Timber salvage where volumes are sufficient Timber waiver where volumes are insufficient or salvage is impossible (e.g. scattered, very poor access) SIGNIFICANCE TO RURAL MUNICIPALITIES Rural municipalities may recover some clearing costs by selling the timber themselves or negotiating agreements with timber operators COST IMPACTS Cost includes completion of a Historic Resource Impact Assessment (HRIA) on lands listed as class 4 or 5 or where evidence suggests historical resources are present Provincial timber damage assessment fees apply 55

63 LEGISLATIVE APPLICATION LEGISLATION Private Land Public Land DESCRIPTION COMMENTS Forest Act NO YES Provides authority for Consent from FMA holders withdrawal of lands from for land withdrawal is Forest Management required prior to SML Agreements (FMA) and approval to facilitate provides for compensation compensation negotiations for timber quotas and for impacts of aggregate permits that are impacted development Water Act YES YES Sec. 36(1) - Provides authority to issue approvals for activities SIGNIFICANCE TO RURAL MUNICIPALITIES Municipalities may be required to pay timber companies for: lost opportunity of timber resource earnings other expenses already incurred (e.g. Annual Operating Plans) Municipality-managed pits are subject to the requirements of the Water Act COST IMPACTS FMA consent and withdrawal fees can range from $4K to $8K per hectare and are assessed by the FMA holders The Water Act has no application fees for approvals YES YES Sec. 1(1)(b) defines activity as anything that may alter water flow, change water location or direction of flow, cause erosion or siltation, cause effects on the aquatic environment (e.g. washing plants, pit de-watering) Current policy/practice restricts in-stream aggregate mining. Municipalities holding gravel dispositions within the bed or shore of a watercourse may not develop the resource without extensive environmental and risk assessment Cost to prepare an application Older dispositions within the bed and shore may be terminated. Very high cost of development 56

64 LEGISLATION Water (Ministerial) Regulation Code of Practice for Watercourse Crossings Weed Control Act Weed Control Regulation LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES The Codes of Practice for Watercourse Crossings provides requirements for construction, maintenance, replacement or removal of all or part of a watercourse crossing (e.g. access) YES YES Provides requirements for the control and destruction of weeds as well as prohibitions on spreading noxious weeds YES YES Provides schedules (lists) of weeds that must be controlled and weeds that must be destroyed Waterbody is defined generally as having defined bed and banks Bed and shore is defined in Sec. 17 of the Survey Act generally as land that has been covered by water so long that vegetation is gone or the vegetation has a distinct character (i.e. aquatic) or that the soil has a distinct character Rural municipalities are required to appoint weed inspectors to enforce the Act SIGNIFICANCE TO RURAL MUNICIPALITIES Municipally-managed pits are required to follow the Codes of Practice for Watercourse Crossings When in doubt about the nature of waterbodies being crossed, rural municipalities may wish to contact local ESRD offices for advice Municipally-managed pits are subject to requirements of the Act Rural municipalities are often seen by others as examples for weed control efforts (e.g. roadside ditches, gravel pits) Municipally-managed pits are subject to requirements of the Regulation COST IMPACTS Operational cost to meet requirements of the Code 57

65 LEGISLATION Wildlife Act and Wildlife Regulation LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Sec. 36 Prohibits the destruction or disturbance of a wildlife house, nest or den of prescribed wildlife Provides for conservation and management of wildlife species (mammals, birds, reptiles) The provincial Wildlife Act is the dominant Act for managing species at risk on land in Alberta The federal Species at Risk Act (SARA) partners with Alberta on strategies and programs Wildlife Regulation lists all prescribed wildlife All SML applications on public land are referred to the Fish and Wildlife Division for review. Operating conditions may include requirements for mitigation of potential impacts to wildlife and habitat For public land, the Fish and Wildlife Information Management System (FWMIS) is the Government of Alberta s fisheries and wildlife database and a required referral during the application process. It includes restrictions to use of public land (e.g. Trumpeter Swan buffers, Ungulate winter timing constraints) SIGNIFICANCE TO RURAL MUNICIPALITIES Municipally-managed pits are subject to regulatory requirements of the Wildlife Act and Wildlife Regulations Rural municipalities have the opportunity to work with Fish and Wildlife upfront when planning and developing gravel operations (CRBP s), including addressing requirements under Federal legislation (Canada Wildlife Act, Migratory Birds Convention Act, Species at Risk Act, Fisheries Act) Planning tools are available to understand the wildlife concerns and requirements of an application COST IMPACTS Wildlife and Fishery assessments and mitigation must be signed-off by a Professional Biologist. Assessments may be costly 58

66 LEGISLATION Canada Wildlife Act (Federal) Migratory Birds Convention Act (Federal) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES The Canada Wildlife Act is The Canada Wildlife Act and binding on all lands in Wildlife Area Regulations are Canada and allows for the binding on all provinces and creation, management and require cooperation protection of wildlife areas between governments to for research, conservation or deliver requirements interpretation The Wildlife Area Regulations prohibits activities that could be harmful to species and to their habitat, unless a permit is issued indicating the permitted activity YES YES Prohibits disturbance or destruction of nests of migratory birds (e.g. robins, hummingbirds, swallows) Where migratory bird nests are observed, NO clearing should occur between April 1 June 30 Operators may wish to contact local Fish and Wildlife office for advice or assistance to avoid potential issues To avoid conflict, land clearing or timber salvage should be done during nonnesting periods (July 1- March 31) SIGNIFICANCE TO RURAL MUNICIPALITIES Municipality-managed pits are subject to regulatory requirements of the Canada Wildlife Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations Municipally-managed pits are subject to regulatory requirement of the Migratory Birds Convention Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations COST IMPACTS Operating plans preparation Operating plans preparation 59

67 LEGISLATION Species at Risk Act - SARA (Federal Fisheries Act (Federal) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES The purposes of this Act are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species, and to manage species of special concern to prevent them from becoming endangered or threatened YES YES Sec. 30 Requires water intakes when water is taken from fish-bearing waters (e.g. gravel washing plants) The Act is binding on lands (public or private) located in all provinces Operators should consult with local Fish and Wildlife offices for species that may be listed under the SARA NOTE: Alberta has developed a Species at Risk program that is tied to federal/provincial efforts to conserve and recover species at risk in jurisdictions across Canada Refer to Alberta s Strategy for the Management of Species at Risk SIGNIFICANCE TO RURAL MUNICIPALITIES Municipally-managed pits are subject to regulatory requirement of the Species at Risk Act Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations Municipally-managed pits are subject to regulatory requirement of the Fisheries Act COST IMPACTS Operating plans preparation May involve costs for studies and or monitoring programs to be carried out during the term of operations. Operating plans preparation Typically, any potential concerns and issues are resolved through provincial Fish and Wildlife Act and Regulations 60

68 LEGISLATION Fisheries Act (Federal) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Sec. 35(1) - Prohibits the Where an operator decides harmful alteration, that a project will create a disruption or destruction of HADD, the project proposal fish habitat (HADD) must be submitted to the Department of Fisheries and Oceans (DFO) for review SIGNIFICANCE TO RURAL MUNICIPALITIES COST IMPACTS Fisheries Act (Federal) Fisheries Act (Federal) YES YES Sec. 35(2) Permits the Minister of Fisheries and Oceans to authorize HADD YES YES Sec. 36 Prohibits depositing any deleterious substance into fish-bearing streams and streams that flow into them Recommend consulting with local Fish and Wildlife Division office for advice and assistance Current policy/practice restricts in-stream aggregate mining Rural municipalities may apply for authorization of a HADD to operate high-value gravel pits Rural municipalities requiring access over fishbearing streams and tributaries will be subject to requirements of the Act Increased costs for access construction and maintenance 61

69 LEGISLATION Navigable Waters Protection Act (Federal) First Nations Consultation LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Protects the rights of Canadians to use all waterbodies that are capable of being navigated (e.g. canoes, boats) Approvals (Sec. 35) are required where operations interfere with navigation NO YES In accordance with The Government of Alberta s First Nations Consultation Policy on Land Management and Resource Development, proponents of sand gravel projects on public land are assigned procedural aspects of consultation Aggregate operations rarely interfere with the public right to use navigable waters Operating plans should address potential concerns by avoiding creating any interferences to navigation (e.g. security fencing across rivers, streams, lakes) Private lands are considered to be taken up and are not subject to First Nations Consultation For public land renewals, First Nations consultation is not usually required as it is an existing use SIGNIFICANCE TO RURAL MUNICIPALITIES Municipality-managed pits are subject to the Navigable Waters Protection Act Rural municipalities may wish to develop and communicate a consistent policy to First Nations regarding compensation to increase awareness and decrease the time to complete consultations for public land gravel pits COST IMPACTS Operating plans preparation Consultation completion costs For new allocations on public land, First Nations consultation is required The Government of Alberta does not require operators to pay fees to First Nations for consultation 62

70 63

71 RECLAMATION LEGISLATION Environmental Protection and Enhancement Act (EPEA) LEGISLATIVE APPLICATION Private Public Land Land DESCRIPTION YES YES Part 6 (Sec. 134 Sec. 146) Provides regulatory requirements for conservation and reclamation of specified land YES YES Sec. 136(1)(b) and (c) Requires an operator to reclaim specified land and obtain a reclamation certificate YES YES Sec. 144(1) Requires that no surrender of a lease is effective until a reclamation certificate is issued COMMENTS SIGNIFICANCE TO RURAL MUNICIPALITIES Municipally-managed pits are subject to the requirements of EPEA and Regulations Where applicable, rural municipalities will continue to pay annual rental to private landowners until reclamation certificates are issued COST IMPACTS Municipalities are exempt from Reclamation Certificate application fees Annual rental 64

72 LEGISLATION Conservation and Reclamation Regulation (EPEA) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS YES YES Sec. 1(e) of the Regulations defines equivalent land capability Sec. 1(t)(v) of the Regulations defines specified land Sec. 2 describes that specified land must be reclaimed to equivalent capability Equivalent capability means that the ability of the land to support various land uses after conservation and reclamation is similar to the ability that existed prior to an activity being conducted on the land, but that the individual land uses will not necessarily be identical Specified land includes land used for pits, including gravel pits SIGNIFICANCE TO RURAL MUNICIPALITIES Land uses after reclamation may not be similar to prior land use. Therefore, prior agreement on land use after reclamation is important to ensure it matches with equivalent capability for issuance of reclamation certificates Rural municipalities need to work closely with respective landowners (public and private) to agree on land use after reclamation COST IMPACTS Conservation and Reclamation Regulation (EPEA)- Code of Practice for Pits YES NO Part 3 Requires gravel operators to prepare an Activities Plan Activities Plan requirements are described in Schedule 2 of the Code Activities Plans must include land use after reclamation Refer below to requirements for private land Activities Plans and public land Conservation and Reclamation Business Plans (CRBP) On private lands, rural municipalities will negotiate with landowners to agree on land use after reclamation Cost of Activities Plan preparation 65

73 LEGISLATION Public Lands Act and Public Lands Administration Regulations (PLAR) LEGISLATIVE APPLICATION Private Land Public Land DESCRIPTION COMMENTS NO YES PLAR Sec. 112 (1) (3) The CRBP includes land use Provides authority to require after final reclamation approval for completion of a Conservation Reclamation Business Plan (CRBP) SIGNIFICANCE TO RURAL MUNICIPALITIES On public lands, rural municipalities will negotiate with ESRD staff to agree on land use after reclamation COST IMPACTS Cost of CRBP plan preparation 66

74 Appendix 2. Rural Municipality Survey Results and Analysis Summary Report The following is a detailed report of the rural municipal web-based gravel survey. The survey was designed to inform upon: Whether municipalities are having difficulty acquiring gravel reserves. Sources of municipal gravel supply. Abundance of gravel within the municipality s respective boundaries. Degree of difficulty to secure gravel. Whether any issues are realised in obtaining provincial government approvals to operate pits. Open ended questions were also included enabling municipalities to provide feedback and details on both the positive and negative elements of their experiences securing gravel supply. (Completion rate: 94.03%) (Completed responses) 1. Does your Municipality have any problems securing reliable aggregate supplies for current public works projects? Response Chart Percentage Count Yes 40% 25 No 60% 38 Total Responses Does your Municipality have a strategic aggregate reserve to fulfill future public works maintenance and construction needs over the next 15 to 20 year period? Response Chart Percentage Count Yes 59% 37 No 41% 26 Total Responses 63 Got Gravel? Part 1-Summary Report 67

75 3. Which of the following is your primary source of aggregate? Response Chart Percentage Count Private Land - County/Rural Municipal District managed pits Public Land - County/Rural Municipal District managed pits Purchase from commercial aggregate operators (private pits in or outside of the County/Rural Municipal District) Supply Agreements - e.g. access to aggregate through Alberta Transportation pits 40% 25 30% 19 29% 18 2% 1 Total Responses 63 **DNR denotes Did Not Respond Got Gravel? Part 1-Summary Report 68

76 3.(a) What percentage is your primary source of aggregate? Response Chart Percentage Count 10-20% 0% % 0% % 0% % 2% % 16% % 16% % 13% % 21% % 33% 21 Total Responses 63 Got Gravel? Part 1-Summary Report 69

77 4. How abundant is the aggregate supply within the boundary of your Municipality? Response Chart Percentage Count Very abundant (supply exceeds local demands) Moderately abundant (supply capable of meeting local demands) Low abundance (supply does not meet local demand - aggregate is commonly imported) 21% 13 63% 40 16% 10 Total Responses 63 Got Gravel? Part 1-Summary Report 70

78 5. How available are the unallocated aggregate deposits within the boundary of your Municipality for use in public works projects? Response Chart Percentage Count Very available (allocations can be obtained within reasonable time frames - one to two years) Moderately available (most of the known deposits are allocated, two to three year lead time is required to scout, explore and obtain allocations) Low available (known deposits are allocated or otherwise unavailable, aggregate sources must be planned well in advance of projects) Unknown (no inventory of unallocated deposits within the Municipality) Total Responses 63 11% 7 43% 27 33% 21 13% 8 5.(a) You have selected low availability or unknown availability to unallocated deposits within your Municipality. Please explain your choice. Respondents were encouraged to elaborate on the reasoning behind the low or unknown availabilities. Approximately 50% of the responses indicated resources were already purchased or under allocation. 25% of responses had the common theme of low availability, with no real further explanation. 10% of responses indicated there was no inventory on aggregates so ideas were vague. The remaining responses did not properly address the question. Got Gravel? Part 1-Summary Report 71

79 6. For Surface Materials Exploration (SME) on public lands, has your Municipality encountered any delays in obtaining approvals? Response Chart Percentage Count Yes 16% 10 No 44% 28 Not Applicable 40% 25 Total Responses 63 6.(a) You have indicated that your Municipality has experienced delays in obtaining approvals for Surface Materials Exploration (SME) on public lands. Please describe the delays you have encountered. For the 10 yes responses to this question, two themes emerged. 70% indicated government restrictions were the main reasons for delays. The other 30% indicated the length of wait times was prohibitive. 7. Does your Municipality manage pits on private lands? Response Chart Percentage Count Yes 60% 38 No 40% 25 Total Responses 63 Got Gravel? Part 1-Summary Report 72

80 7.(a) For Municipality managed pits on private land, do you encounter any delays in obtaining approval of the Activity Plan? Response Chart Percentage Count Routinely obtain approvals within reasonable time-lines (Up to 6 months) Sometimes experience delays (6-12 months) Often encounter extensive delays (12 months or more) 61% 23 26% 10 13% 5 Total Responses 38 Got Gravel? Part 1-Summary Report 73