In carrying out its powers, duties and functions, the Alberta Energy Regulator (AER) is obligated to act in accordance with any applicable regional plan made pursuant to the Alberta Land Stewardship Act (ALSA). In its AER Bulletin 2014-28, the AER has provided guidelines for applicants to assist both the applicants and the AER to ensure that energy development complies with ALSA regional plans. These guideline requirements will be incorporated into all applicable AER directives and guides. A full copy of AER Bulletin 2014-28 can be accessed here.
AER Bulletin 2014-28: Application Requirements for Activities within the Boundary of a Regional Plan
On September 19, 2014, the AER has announced measures it will take to ensure it meets its statutory obligation to act in compliance with regional plans under the ALSA. Applications seeking approval from the AER for an activity that is to be located within the boundary of an approved regional plan, as set out under the ALSA, must assess the following:
- Whether that activity would also be located within the boundaries of a designated conservation area, a provincial park, a provincial recreation area, or a public land area for recreation and tourism;
- Whether that activity is consistent with the land uses established in the applicable regional plan or with any of the outcomes, objectives, and strategies in that same regional plan;
- If that activity is to be located within the boundaries of a designated conservation area, a provincial park, a provincial recreation area, or a public land area for recreation and tourism, whether the mineral rights associated with the activity are subject to cancellation; and
- How that activity is consistent and complies with any regional trigger or limit established under the management framework detailed under the applicable regional plan or any notices issued in response to an exceedance of a regional trigger or limit.
Applicants will be required to retain this information at all times and provide it on request unless otherwise directed.
Environmental Protection and Enhancement Act and Water Act Applications
- When applying under the Environmental Protection and Enhancement Act, applicants must also address Alberta Environment and Sustainable Resource Development's (ESRD's) Guide to Content for Industrial Approval Applications.
- Applications under the Environmental Protection and Enhancement Act or the Water Act must address any regional initiatives, in addition to any regional plans and management frameworks.
Public Lands Act Applications
- When applying under the Public Lands Act, applicants must run a land standing report or use the Landscape Analysis Tool (LAT) to identify any potential conflicts at the location of the proposed activity. Designated provincial recreation areas and conservation areas are placed under reservation for applications under the Public Lands Act. Reservations are one potential conflict.
- Applicants will be required to consult with the AER and/or ESRD if there is any overlap with one of the reservations.
Oil and Gas Conservation Act, Oil Sands Conservation Act, Pipeline Act, and Coal Conservation Act Applications
When applying under the Oil and Gas Conservation Act, Oil Sands Conservation Act, Pipeline Act, or Coal Conservation Act, applicants must submit the information noted above if the activity being applied for:
- is within the boundaries of a designated conservation area, a provincial park, a provincial recreation area, or a public land area for recreation and tourism;
- is not permitted and is inconsistent with the land uses established in the applicable regional plan or is inconsistent with the outcomes, objectives, and strategies in that regional plan;
- may result in exceeding a regional trigger or limit in the applicable regional plan or will contravene a notice issued in response to the exceeding of a trigger or limit; or
- is "incidental" to previously approved and existing activities.
- Applicants must submit the information noted above if they believe that their proposed activity is permitted under the applicable regional plan because it is "incidental" to previously approved and existing activities. Applicants must provide information to support their position.
- Applicants should not assume that a proposed activity is incidental to a previously approved activity or activities. Applicants should also not assume that a proposed activity that was disclosed in a previously submitted application or project plan that has not received AER approval is permitted under the applicable plan.
- The AER may deny an application for approval of activities that fall under the requirements of this bulletin if it is not satisfied that the proposed activities are consistent with the policy objectives set out in the applicable regional plan.
- The AER has no authority to waive compliance with or vary any restriction, limitation, or requirement regarding a land area or land use under a regional plan.
There are now two regional plans approved in Alberta, both of which are in areas of Alberta in which energy development has historically taken place and will continue to take place: the Lower Athabasca Regional Plan (found here) and the recently released South Saskatchewan Regional Plan (found here). We recently posted about the South Saskatchewan Regional Plan (found here), AER Bulletin 2014-028 is one step toward the AER's implementation of its statutory obligation to ensure it conducts itself, and Alberta energy development is conducted, consistent with regional plans. The Bulletin clarifies the application expectations of the AER when applicants are seeking licences to undertake activities in regional plan areas, and how existing AER Directives will be utilized to further implement the spirit of the regional plans. As well, any applications submitted under Directives 051: Injection and Disposal Wells—Well Classifications, Completions, Logging, and Testing Requirements, Directive 055: Storage Requirements for the Upstream Petroleum Industry, Directive 056: Energy Development Applications and Schedules, and Directive 058: Oilfield Waste Management Requirements for the Upstream Petroleum Industry to which these requirements apply must be submitted as 'nonroutine', which may trigger a hearing on the application before the AER.
Oil and gas industry participants need to continue to be aware of any possible impacts regional plans may have on their development goals and must be aware of the additional regulatory requirements established under AER Bulletin 2014-28 in drafting their applications.