Wetlands Conservation Update

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Wetlands Conservation Update

: March 6, 2011

Department of Environment Introduces New Operational Guidelines under the New Brunswick Wetlands Conservation Policy

New Brunswick’s new Operational Guidelines issued under the Wetlands Conservation Policy took effect as of January 1, 2011.

Real estate developers and industrial project proponents planning development activity in or near wetlands are encouraged to review the new Operational Guidelines in detail.

Key highlights of the new guidelines are:

• development within 30 m or 50 m, depending on the classification of the wetland, will require prior review by the Department of Environment and a wetlands biologist;

• developers may be required to pay for wetlands delineations and wetland functional assessments to be carried out;

• certain projects may be prohibited depending on the impact on wetlands;

• sector-specific guidance is provided; and

• developers may be required to pay compensation in certain cases.

OVERVIEW OF THE WETLANDS FRAMEWORK

The primary regulatory mechanisms for managing development activities in or near wetlands are the Environmental Impact Assessment Regulation under the Clean Environment Act, and the Watercourse and Wetland Alteration Regulation under the Clean Water Act.

To assist in and improve the application of existing regulations, the Province of New Brunswick introduced the New Brunswick Wetlands Conservation Policy in 2002, and most recently supplemented this policy with its new Operational Guidelines, introduced in February 2011 and slated to take effect retroactively as of January 1, 2011.

Environmental Impact Assessment Regulation

Certain projects must undergo an environmental impact assessment with the Department of Environment (“DENV”) pursuant to the Environmental Impact Assessment Regulation under the Clean Environment Act. Such projects include major residential developments outside incorporated areas and all projects affecting two hectares or more of wetlands.

Watercourse and Wetland Regulation

In 1990, the New Brunswick government implemented its Watercourse and Wetland Alteration Regulation (“WAWA”) under the Clean Water Act in an effort to protect the Province’s surface water resources from detrimental human activity. WAWA requires persons wishing to carry out certain activities within 30 m of a watercourse or wetland to first obtain a permit from DENV. Examples of such activities requiring a permit include construction or landscaping work, soil excavation, and clearing of vegetation.

Wetlands Conservation Policy

In 2002, the Province introduced the New Brunswick Wetlands Conservation Policy (the “Policy”) with the goal of clarifying the government’s intent regarding wetlands management. The key policy statement of the Policy is to prevent the loss of Provincially Significant Wetland habitat and to ensure no net loss of wetland function for all other wetlands.

The Policy classifies wetlands as either “Provincially Significant Wetlands” or “Other Wetlands.” Provincially Significant Wetlands are wetlands having provincial, national or international significance. The Province will not support development in a Provincially Significant Wetland, within 30 m of the boundary of such a wetland, or any activity that poses a substantial risk to such a wetland. Limited exceptions to this general ban on development within 30 m of a Provincially Significant Wetland are for those activities that are meant to enhance the wetland or are deemed to provide a necessary public function.

The second category of wetlands is all Other Wetlands (i.e., other than Provincially Significant Wetlands) greater than one hectare in size.

The Policy provides that all activities in, or within 30 m of Other Wetlands will be subject to a development review process that will assess wetland functions and the potential for detrimental effects. This development review process mandates a three-pronged approach: (i) consider methods to avoid the wetland in the planning stage; (ii) consider ways to minimize activity within the wetland; and (iii) consider mitigation techniques during construction.

While the policy objectives of the Wetlands Conservation Policy were clarified, many people found the policy to be too complex and its implementation unpredictable.

2011 – NEW OPERATIONAL GUIDELINES

As a further response to the public’s lack of understanding of the Wetlands Conservation Policy, DENV announced in December 2010 its intention to introduce operational guidelines to bring more consistent and predictable decision-making with respect to development in and around wetlands.

The new Operational Guidelines, which were introduced in February, 2011, and take effect retroactively as of January 1, 2011, do not change the existing rules for controlling development in or near wetlands, but are meant to supplement and enhance the existing framework.

The Wetland Predictive Layer

A key component of the new Operational Guidelines is the use of a “Wetland Predictive Layer” by DENV. The Wetland Predictive Layer is a mapping tool which predicts the probable location a wetland on any given property. The layer maps out where DENV believes there is a likely probability that a wetland exists in a particular location, and it also maps out a 30 m or 50 m zone surrounding such wetlands. (The 30 m buffer relates to Provincially Significant Wetlands and the 50 m buffer is for all Other Wetlands.)

The Operational Guidelines provide that for development activities outside these buffer zones, a WAWA permit is not required for project impacts to wetlands. If any activity inside the buffer zones is planned, DENV is to be contacted to determine if a WAWA permit is necessary and a DENV regional wetland biologist must also be contacted. The wetland biologist will determine an appropriate method to assess the wetland, what type of activities are permitted within the buffer zones, and whether the developer needs to engage a recognized wetlands delineator to delineate the wetland.

Wetland Delineations

Only persons approved by DENV are permitted to provide wetland delineation reports to DENV for review. Furthermore, delineations are generally only conducted during the growing season (i.e., the summer).

Upon receipt of a delineation report, DENV will determine whether a proposed development can go forward as planned, go forward with required modifications, or not be allowed at all. In addition, should development be planned to take place within a wetland, DENV will also require the recognized delineator to carry out a Wetland Functional Assessment which must be included with the delineation report. The Wetland Functional Assessment is used by DENV to decide whether the planned activity will be allowed or not within the wetland.

Sector-Specific Guidelines

The new Operational Guidelines also provide specific guidance for specific activities, including:

• residential developments;

• commercial, institutional and industrial developments;

• prospecting and mining projects;

• oil and gas exploration projects; and

• cranberry operations.

Circumstances where developers or project proponents may be required to pay compensation as a precondition to obtaining approvals are set out in these sector-specific guidelines. Further compensation guidelines are expected from DENV in the near future.

Residential and commercial developers are encouraged to pay particular attention to provisions with respect to existing registered building lots created before January 1, 2011.

GeoNB Map Viewer

In conjunction with the roll-out of its new Operational Guidelines, the Province has integrated its Wetland Predictive Layer information into GeoNB Map Viewer, the Province’s free on-line service for viewing maps and aerial photos of New Brunswick. The GeoNB Map Viewer is accessible at: geonb.snb.ca/geonb/.

Significance of New Operational Guidelines

It is expected that the new Operational Guidelines and Wetlands Predictive Layer will result in more projects being identified as subject to regulatory environmental oversight than have been in the past.

In addition, the new requirement that any proposed development falling within 30 m or 50 m, as the case may be, of a wetland predictive layer must be submitted to DENV will most probably lead to greater delays in obtaining building permits and WAWA permits. Further adding to such delays is the possibility of having to undertake wetlands delineations during limited windows of opportunity.

These additional requirements may therefore lead to increased development costs and possibly the loss of development potential for lands previously believed to be suitable for development. Real estate developers, industrial project proponents, woodlot owners, farmers, and real property owners generally are encouraged to examine in detail the possibility that their projects and activities may affect wetlands well in advance of their anticipated construction start dates or other planning activities (e.g., valuation of property for succession planning).

Finally, ambiguities around what constitute appropriate mitigation and compensation must be clarified to enable the proper management of cost and risk for commercial and residential developments and industrial projects.

We are pleased to provide you with detailed biographies on our lawyers, paralegals and administrative team, so you can learn more about how we can best support your business' success.

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