2022 ABEAB 28 Appeal No. 20-002-R
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ALBERTA ENVIRONMENTAL APPEALS BOARD
Report and Recommendations
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Date of Report and Recommendations – June 30, 2022
IN THE MATTER OF sections 91, 92, 94, 95, and 99 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, and section 115 of the Water Act, R.S.A. 2000, c. W-3;
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IN THE MATTER OF an appeal filed by Marlow and Dianne Gereluk with respect to the decision of the Director, Regulatory Assurance Division South, Alberta Environment and Parks, to issue Water Act Approval No. 5038754 to Stone’s Jewellery Ltd.
Cite as: Gereluk v. Director, Regulatory Assurance Division South, Alberta Environment and Parks, re: Stone’s Jewellery Ltd. (30 June 2022), Appeal No. 20-002-R (A.E.A.B.), 2022 ABEAB 28.
BEFORE: |
Dr. Chidinma Thompson, Board Chair.
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| SUBMISSIONS BY:
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| Appellants:
Approval Holder: |
Mr. Marlow and Ms. Dianne Gereluk.
Stone’s Jewellery Ltd., represented by Ms. Marilyn Germaine, Trace Associates Inc. |
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| Director: |
Mr. Craig Knaus, Director, Regulatory Assurance Division South, Alberta Environment and Parks, represented by Ms. Jodie Hierlmeier, Alberta Justice and Solicitor General.
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EXECUTIVE SUMMARY
The Director, Regulatory Assurance Division South, Alberta Environment and Parks (the Director) issued an Approval under the Water Act to Stone’s Jewellery Ltd. (the Approval Holder), allowing Stone’s Jewellery to disturb two water bodies for the purpose of constructing a residential development (Morning Vista Estates) located at SW 23-24-03-W5M in Rocky View County.
The Environmental Appeals Board (the Board) received a Notice of Appeal from Mr. Marlow and Ms. Dianne Gereluk (the Appellants), accompanied by a request for a stay. After receiving submissions on whether the Appellants were directly affected and whether a stay should be granted, the Board found the Appellants were directly affected by the issuance of the Approval. However, the Board declined to issue a stay.
A mediation meeting was held involving the Appellants, Approval Holder and the Director. The Appellants and Approval Holder reached an agreement and, along with the Director, recommended the Board issue a Report and Recommendation to the Minister of Environment and Parks requesting the Approval be varied to reflect the agreement.
The Board agreed and requested the Minister vary the Approval in accordance with the mediated agreement.
TABLE OF CONTENTS
I. INTRODUCTION
[1] This is the Report and Recommendations of the Environmental Appeals Board (the “Board”) to the Minister of Environment and Parks (the “Minister”) regarding the resolution of the appeal of Mr. Marlow and Ms. Dianne Gereluk (the “Appellants”) of Approval No. 5038754 (the “Approval”) issued under the Water Act, R.S.A. 2000, c. W-3, to Stone’s Jewellery Ltd., (the “Approval Holder”) on April 23, 2020, by the Director, Regulatory Assurance Division South, Alberta Environment and Parks (the “Director”).
II. BACKGROUND
[2] On April 30, 2020, the Board received a Notice of Appeal from the Appellants regarding the Approval issued to the Approval Holder. The Approval allows the Approval Holder to disturb two water bodies for the purpose of constructing a residential development located at SW 23-024-03-W4M in Rocky View County by placing, constructing, operating, maintaining, removing, disturbing works, in or on any land, water or water body; maintaining, removing or disturbing ground, vegetation or other material in or on any land, water or water body; altering the flow, direction of flow or level of water; and changing the location of water for the purposes of removing an ice jam, drainage, flood control, erosion control or channel realignment or for a similar purpose.
[3] On May 1, 2020, the Board wrote to the Appellants, Approval Holder, and Director (collectively, the “Parties”), acknowledging receipt of the Notice of Appeal, notifying the Approval Holder and Director of the appeal, and requesting the Director provide the records related to the appeal and that were available to the Director when he made his decision (the “Record”). The Board received the Record on May 25, 2021, and copies were provided to the Appellants and Approval Holder.
[4] On May 4, 2020, the Board received a letter from the Appellants requesting a stay of the Approval pending a hearing and final determination of the appeal. The determination of a stay required the Board first to determine if the Appellants were directly affected by the issuance of the Approval, as the Board can only grant a stay to an applicant who is directly affected by the decision being appealed.
[5] Based on the submissions, the Board determined the Appellants were directly affected by the Approval because they own and reside on land adjacent to the land owned by the Approval Holder and the proposed site of the activities allowed under the Approval. The activities could interfere with the surface water flow and drainage from land owned by the Appellants.
[6] The Board issued a decision stating the Appellants were directly affected by the Approval. However, the Board denied the stay request.[1]
[7] The Board held a mediation meeting by videoconference on July 28, 2020, involving the Parties and a Board member appointed as the mediator. Discussions continued after the mediation was held, and regular updates on the discussions were provided to the Board.
[8] An agreement was reached between the Appellants and Approval Holder, and the Board received a request to recommend the Approval be varied according to the agreement.
III. DISCUSSION
[9] The Board reviewed the agreement reached by the Parties and agreed it was reasonable.
IV. RECOMMENDATIONS
[10] In accordance with section 99 of EPEA,[2] the Board recommends that the Minister of Environment and Parks order Approval No. 5038754 be varied in accordance with the agreement reached by the Parties.
[11] Under section 100(2) of EPEA,[3] copies of this Report and Recommendations and any decision by the Minister are to be provided to:
1. Mr. Marlow and Ms. Dianne Gereluk;
2. Ms. Jodie Hierlmeier, Environmental Law Section, Alberta Justice and Solicitor General, representing Mr. Craig Knaus, Director, South region, Regulatory Assurance Division, Alberta Environment and Parks; and
3. Ms. Marilyn Germaine, Trace Associates Inc., representing Stone’s Jewellery Ltd.
Dated on June 30, 2022, at Edmonton, Alberta.
“original signed by”
Chidinma Thompson
Board Chair
Ministerial Order
51/2022
Environmental Protection and Enhancement Act
R.S.A. 2000, c. E-12
Order Respecting Environmental Appeals Board Appeal No. 20-002
I, Whitney Issik, Minister of Environment and Parks, pursuant to section 100 of the Environmental Protection and Enhancement Act, make the order in the attached Appendix, being an Order Respecting Environmental Appeals Board Appeal No. 20-002.
Dated at the City of Edmonton, in the Province of Alberta, this 19 day of August , 2022.
“original signed by”
__________________________
Whitney Issik
Minister
Appendix
Order Respecting Environmental Appeals Board Appeal No. 20-002
With respect to the decision of the Director, Regulatory Assurance Division South, Alberta Environment and Parks (the “Director”), to issue Approval No. 5038754 (the “Approval”) under the Water Act, R.S.A. 2000, c. W-3, to Stone’s Jewellery Ltd. (the “approval holder”), I, Whitney Issik, Minister of Environment and Parks, order that the decision of the Director to issue the Approval is varied as follows:
1. condition 4.2 is varied by adding the following immediately after the phrase “Date: September 17, 2018.”:
“Report No. 5038754-R002
Wetland Assessment and Impact Report, Portions of SW ¼-23-024-03-W5M, Rocky View County, Alberta, Morning Vista Subdivision (Lots 14, 15, and 34), Trace Project No. 100-1332, Date: April 21, 2022, including the Agreed Conditions.”
2. a copy of Report No. 5038754-R002 is attached as Appendix A to this Ministerial Order.
APPENDIX A
REPORT NO. 5038754 -R002 Trace
A S S O C I A T E S
THIS DOCUMENT FORMS PART OF AN AUTHORIZATION ISSUED UNDER THE WATER ACT
DATE: MAY 5, 2022
Wetland Assessment and Impact Report
Portions of SW¼-23-024-03 W5M
Rocky View County, Alberta
Morning Vista Subdivision (Lots 14, 15, and 34)
Trace Project No. 100-1332 April 21, 2022
Prepared for:
Stone 's Jewellery Limited
225A Bear Street. P 0. Box 1475
Banff, Alberta T1L 1B4
Prepared by:
Trace Associates Inc.
Suite No. 300, 37 Richard Way SW Calgary, Alberta T3E 7M8
T 403.217.3747
E info@traceassociales.ca www.traceassociates.ca
1.877.418.7223 I 1.877.41(TRACE}
Smart. Responsive. Efficient.
[1] Gereluk v. Director, South Saskatchewan Region, Operations Division, Alberta Environment and Parks, re: Stone’s Jewellery Ltd. (23 November 2021), Appeal No. 20-002-ID1 (A.E.A.B.), 2021 AEAB 34.
[2] Section 99 of EPEA provides:
“In the case of a notice of appeal referred to in section 91(1)(a) to (m) of this Act or in section 115(1)(a) to (i), (k), (m) to (p) and (r) of the Water Act, the Board shall within 30 days after the completion of the hearing of the appeal submit a report to the Minister, including its recommendations and the representations or a summary of the representations that were made to it.”
[3] Section 100(2) of EPEA states:
“The Minister shall immediately give notice of any decision made under this section to the Board and the Board shall, immediately on receipt of notice of the decision, give notice of the decision to all persons who submitted notices of appeal or made representations or written submissions to the Board and to all other persons who the Board considers should receive notice of the decision.”