Appeals

Decision Information

Jim Gerber and JimCo Farming Inc. v. Director, Compliance Manager, North Region - Capital District, Regulatory Assurance Division, Alberta Environment and Protected Areas, Appeal Nos. 21-023 & 024-R

Collection	Appeals
Date	2022-12-21
Neutral citation	2022 ABEAB 39
Environment Decision Nos.	Enforcement Order EA-WA-37279
Appeal Nos.	21-023, 21-024
EAB Board Member	Anjum Mullick; Dave McGee; Kurtis Averill
EAB Decision Type	Report and Recommendations
Legislation	WA

Decision Content

2022 ABEAB 39 Appeal Nos. 21-023 & 024-R

ALBERTA

ENVIRONMENTAL APPEALS BOARD

Report and Recommendations

Date of Report and Recommendations – December 21, 2022

IN THE MATTER OF sections 91, 92, 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;

-and-

IN THE MATTER OF appeals filed by Jim Gerber and JimCo Farming Inc. with respect to the decision of the Director, Compliance Manager, North Region – Capital District, Alberta Environment and Protected Areas, to issue Water Act Enforcement Order No. EO-WA-37279 to Jim Gerber and JimCo Farming Inc.

Cite as: Jim Gerber and JimCo Farming Inc. v. Director, Compliance Manager, North Region – Capital District, Regulatory Assurance Division, Alberta Environment and Protected Areas (21 December 2022), Appeal Nos. 21-023 and 21-024-R (A.E.A.B.), 2022 ABEAB 39.

HEARING BEFORE:	Ms. Anjum Mullick, Board Member and Panel Chair; Mr. Dave McGee, Board Member; and Mr. Kurtis Averill, Board Member

BOARD STAFF:	Mr. Andrew Bachelder, Board Counsel and Ms. Denise Black, Board Secretary.

PARTIES:
Appellants:	Mr. Jim Gerber and JimCo Farming Ltd. represented by Mr. Jim Gerber and Ms. Terese Lepard Gerber.

Director:	Mr. Maxwell Harrison, Director, Compliance Manager, North Region – Capital District, Regulatory Assurance Division, Alberta Environment and Protected Areas.

WITNESSES:
Appellants:	Mr. Jim Gerber; Ms. Terese Lepard Gerber; and Mr. Chris Brearley.

Director:	Mr. Maxwell Harrison, Director, Compliance Manager, North Region – Capital District, Regulatory Assurance Division, Alberta Environment and Protected Areas; Mr. Edward Furler, Environmental Protection Officer, Alberta Environment and Protected Areas; and Ms. Courtney Kelly, Wetland Specialist, Alberta Environment and Protected Areas.

EXECUTIVE SUMMARY

Mr. Jim Gerber and JimCo Farming Inc. (the Appellants) filed appeals of an Enforcement Order (the Order) issued to the Appellants under the Water Act, by the Director, Compliance Manager, North Region - Capital District, Regulatory Assurance Division, Alberta Environment and Protected Areas (the Director).* The Order alleged that the Appellants conducted “unauthorized activities” including, but not limited to, draining and backfilling multiple wetland areas, and the excavation and alteration of a watercourse (the Activities) on the Appellants’ land (the Lands). The Order required the Appellants to retain an Authenticating Professional to complete a Wetland Assessment and Impact Report, and upon receiving the Director’s approval of the report, to submit an Unauthorized Activities Reclamation Plan with a schedule to complete reclamation activities.

The Appellants appealed the Order to the Environmental Appeals Board (the Board). The Board scheduled an oral hearing with written submissions. The Board set two issues for the hearing:

1. Was the Order properly issued? This considers both the Director’s legal jurisdiction and the factual basis for the Order; and

2. Are the terms and conditions in the Order appropriate?

The Appellants did not deny conducting the Activities on the land. The Appellants believed they were justified in completing the Activities for the following reasons:

• the most recent Farmland Calculation Report for the Lands did not identify any wetlands;

• the Activities were to divert saline groundwater, which does not require a Water Act Licence;

• the Activities would result in greater global food security and reduced chemical and diesel fuel usage as part of the Appellants’ farming practices; and

• the Appellants were unaware of the details of the Water Act and its associated regulations and policies.

* Alberta Environment and Protected Areas is the successor department to Alberta Environment and Parks.

After reviewing the evidence and considering the submissions of the Appellants and the Director, the Board determined the Director had the factual and jurisdictional authority to issue the Order. The Board also determined the terms and conditions of the enforcement orders were appropriate but recommended some variations to reflect the options the Director discussed during the hearing.

To assist the Appellants in assessing and determining the impacts to the Lands because of the Activities, and ultimately determine and implement mitigation options, the Board recommended that greater detail and clarity be incorporated into the Order, specifically:

• improved clarity regarding the purpose of the Wetland Assessment and Impact Report;

• greater detail regarding the hydrologic assessment, particularly as it relates to the modification of the watercourse (the creek);

• a description of the mitigation options;

• added references to the relevant policies and directives; and

• updated timeline for the reports and the completion of the work required in the Order.

The Board recommends the Minister of Environment and Protected Areas vary the Order as set out in Appendix A of this Report and Recommendations.

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................ 2

II. BACKGROUND.................................................................................................................. 2

III. SUBMISSIONS.................................................................................................................... 6

1. Appellants...................................................................................................................................... 6

2. The Director.................................................................................................................................. 9

IV. ISSUES............................................................................................................................... 15

V. ANALYSIS......................................................................................................................... 16

1. Was the Order properly issued?............................................................................................... 16

2. Are the terms and conditions in the Order appropriate?...................................................... 19

3. Other Matters Raised by the Appellants................................................................................ 23

VI. CONCLUSION................................................................................................................... 24

VII. RECOMMENDATIONS.................................................................................................... 25

VIII. COMMENTS...................................................................................................................... 26

IX. APPENDIX “A”................................................................................................................. 28

I. INTRODUCTION

[1] This is the Report and Recommendations of the Environmental Appeals Board (the “Board”) to the Minister of Environment and Protected Areas (the “Minister”) concerning the appeals by JimCo Farming Inc. and Mr. Jim Gerber (collectively, the Appellants) of Enforcement Order EO-WA-37279 (the “Order”) issued under the Water Act, R.S.A. 2000, c. W-3, to the Appellants by the Compliance Manager, Regulatory Assurance Division, North Region – Capital District, Alberta Environment and Protected Areas (the “Director”). The Director issued the Order to address alleged contraventions under the Water Act, related to the infilling of wetlands and the alteration of a watercourse (a creek) on the Appellants’ land.

[2] The Board recommends the Minister vary the Order as attached in Appendix A to this Report and Recommendations, to provide the following:

• improved clarity regarding the purpose of the Wetland Assessment and Impact Report;

• greater detail regarding the hydrologic assessment, particularly as it relates to the modification of the watercourse (the creek);

• a description of mitigation options;

• added references to the relevant policies and directives; and

• an updated timeline for the reports and the completion of the work required in the Order.

II. BACKGROUND

[3] JimCo Farming Inc. owns land legally described as SE 24-53-16 W4M, in Lamont County (the “Lands”). Mr. Jim Gerber and Ms. Terese Lepard Gerber are the sole directors of JimCo Farming Inc.

[4] On October 25, 2021, Alberta Environment and Parks, now referred to as Alberta Environment and Protected Areas (“EPA”), received two anonymous public complaints regarding the infilling of multiple wetlands on the Lands. On October 26, 2021, an EPA Environmental Protection Officer (“EPO”) conducted a site inspection of the Lands from an adjacent road and observed what he believed to be fill material in stockpiles and some of the material placed within potential wetlands with standing water and wetland vegetation surrounding fill material locations. Earth moving equipment was observed on the Lands actively working at the time of the inspection.

[5] On November 2, 2021, Lamont County took drone video footage of the area, including the Lands, which showed considerable Unauthorized Activities and modifications to the topography and drainage of the Lands (the “Activities”). Through internal communication within EPA, the EPO confirmed that a Water Act Approval (“Approval”)^{^[1]} had not been issued for the Activities.

[6] On November 3, 2021, EPA emailed a non-compliance letter to the Appellants indicating that a Water Act Approval had not been applied for or issued for the Activities and all work must cease immediately. EPA requested the Appellants respond by November 8, 2021, to discuss the next steps to return them to compliance with the Water Act.

[7] On November 5, 2021, two EPOs and a Lamont County Peace Officer conducted a site inspection of the Lands. The EPOs provided the Appellants with a copy of the November 3, 2021 non-compliance letter, and advised them to cease all the Activities. During the inspection, the EPOs observed:

• active equipment moving fill material within the wetlands areas;

• four drainage ditches leading from the wetland areas to a watercourse crossing the Lands; and

• alterations to what the Appellants referred to as a creek crossing the Lands (the “Watercourse”).

[8] On November 9, 2021, an EPO phoned Mr. Gerber and advised that EPA’s Approval and Public Lands groups were working to complete a review of the Activities and had concerns. The EPO advised the Appellants to stop the Activities.

[9] On November 16, 2021, an EPA Wetland Specialist reviewed historic aerial photographs of the Lands and the photos taken by the EPO during the October 26 and November 5, 2021 inspections. The Wetland Specialist determined there were twelve wetlands and three ephemeral wetlands present on the Lands. The Wetland Specialist also concluded that there were another four potential wetlands, but those would require field verification.

[10] On December 21, 2021, the Director held a “due process” meeting via teleconference with Mr. Gerber to discuss the investigation of the Activities and to gather any other relevant information to help inform the Director’s decision about the potential issuance of an enforcement order.

[11] On January 6, 2022, the Director issued the Order to the Appellants for contravening section 36(1) of the Water Act, which states, “…that no person may commence or continue an activity except pursuant to an approval unless it is otherwise authorized under this Act.”

[12] The Order required the Appellants to:

• immediately cease all unauthorized activities on the Lands;

• retain an Authenticating Professional and submit to the Director the name, contact information, and credentials of the professional;

• submit to the Director for the Director’s review and approval a Wetland Assessment and Impact Report prepared by the Wetland Professional on or before April 29, 2022;

• within 30 days of receiving written approval from the Director for the Wetland Assessment and Impact Report, submit to the Director for the Director’s written approval, an Unauthorized Activities Reclamation Plan, prepared by the Authenticating Professional. The Unauthorized Activities Reclamation Plan was to include a schedule to implement the plan with a completion date of no later than June 15, 2022; and

• submit to the Director an Unauthorized Activities Reclamation Validation Report on or before July 15, 2022.

[13] On January 13, 2022, the Board received a Notice of Appeal from the Appellants appealing the Director’s decision to issue the Order and requesting a stay.

[14] On January 14, 2022, the Board wrote to the Appellants and the Director (collectively, the “Parties”) acknowledging receipt of the Notice of Appeal and notifying the Director of the appeal and Appellants’ stay application. The Director was asked to advise the Board by January 21, 2022, if the Director would consent to a stay, and to provide the Board with a copy of the Director’s Record relating to the Order.

[15] On January 19, 2022, the Director advised the Board that the Director’s Record would be provided by February 4, 2022. The Director further advised that he would not enforce the conditions of the Order, except for Clause 1,[2] without giving the Appellants and the Board sufficient notice.

[16] On January 21, 2022, the Appellants advised that all unauthorized activities on the Lands had ceased.

[17] On January 27, 2022, the Board wrote to the Parties and advised that the Appellants were no longer required to provide further submissions regarding the stay since they had agreed to the Director’s terms regarding non-enforcement of the Order.

[18] On February 3, 2022, the Director provided the Director’s Record, which the Board distributed to the Parties.

[19] On February 18, 2022, the Board held a mediation meeting with the Parties that did not result in an agreement. The Board scheduled a hearing and set a process for exchange of written submissions.

[20] The written submissions and materials for the hearing were received from the Parties between October 14, 2022, and November 21, 2022. On November 18, 2022, the Board wrote to the Parties advising that it would be helpful to the Board if the Parties would include comments on the following at the hearing:

(a) Was the work conducted on the Lands as observed by the EPOs on October 26 and November 5, 2021, considered an “activity” as defined under Section 1(b) of the Water Act?[3]

(b) If the work observed on the land as described above was an “activity” as defined by the Water Act, was there an Approval in place?

(c) If an Approval was required and was not in place, is it possible to obtain an Approval and if so, what would be required to obtain such an Approval?

III. SUBMISSIONS

1. Appellants

[21] The Appellants submitted four main arguments:

1. preventing the Unauthorized Activities would impact global hunger, food security and food production efficiency;

2. the water bodies on the Lands were not “wetlands” and there were discrepancies between the Lamont County Farmland Calculation Report (“Farmland Calculation Report”) and the findings of the EPA Wetland Specialist;

3. diversion of saline groundwater did not require a Water Act Licence; and

4. the Government of Alberta’s lack of educational campaigns has resulted in the general public’s lack of awareness and contradictory knowledge of the Water Act.

[22] At the hearing, Mr. Gerber testified to the following:

• he purchased the Lands in the Spring of 2021, and started farming shortly thereafter;

• over the course of several weeks in 2021, he and his employee, Mr. Brearley, completed the Activities on the Lands, which he described as landscaping and contouring;

• there were significant equipment issues, which resulted in the Activities taking far longer than planned;

• he used his professional judgement to complete the Activities, and did not have any formal estimates of the volume of water that was now being redirected, stored, and potentially discharged off the Lands;

• infilling the wetlands and either creating or modifying the drainage on the Lands, would increase the amount of land that could produce food, and would result in less use of agricultural chemicals such as pesticides, herbicides, insecticides, and fungicides, as well as less diesel fuel usage;

• EPA and the relevant legislation and associated policies, did not either adequately address the potentially negative impacts to agriculture when maintaining wetlands, or were silent on the topic;

• in addition to increasing crop production, the Activities were undertaken to manage surface runoff across the Lands, and divert it to the Watercourse that crossed the Lands;

• the Watercourse was widened and deepened (in some places as deep as four feet) to lower the groundwater table, with the goal of reducing salinity and storing extra water.

• the Lands had salinity issues that needed to be addressed to improve the arable land and prevent future salinity problems;

• the original topography allowed water to remain on the Lands long enough to draw saline groundwater up to the surface;

• the Water (Ministerial) Regulation, A.R. 253/2018, Schedule 3, section 1(e),^{^[4]} exempted him from needing a Licence^{^[5]} for the Unauthorized Activities;

• he did not have any analytical data demonstrating that the groundwater that he was trying to manage was saline by definition;^{^[6]} and

• an Alberta Municipal Accredited Assessor was required to complete the Farmland Calculation Report, which identified 136 acres of dry arable soil and 24 acres of dry pasture soil, for a total of 160 acres of dry agricultural land, but did not identify any wetlands on the Lands.

[23] Mr. Gerber noted the Lands had wet spots from the spring runoff. He stated:

“[The wet spots] dry up within a few weeks depending on the weather. So from this we determined that they are temporary. And one area on the west side may have had water in it during the spring but during the summer it dried out and by fall it was completely dry hence the contouring of the land to prevent a) groundwater salinity [and] b) spring flooding.”[7]

[24] Mr. Gerber referenced historic aerial photographs of the Lands showing that the wet areas on the Lands had been swathed and combined through. Mr. Gerber acknowledged there were wetlands and water bodies on the Lands, but they were all ephemeral. Mr. Gerber argued the Wetland Specialist was incorrect in her assessment and determination of the number and type of wetlands on the Lands.

[25] Mr. Gerber quoted from EPA’s document, “Assessing Wetlands in Alberta”, stating: “The province can claim ownership to the bed and shore of wetlands that are semi-permanent and permanent. While the bed and shore of ephemeral, temporary and seasonal wetlands are not claimable”^{^[8]}. Mr. Gerber stated that as the wetlands on the Lands were ephemeral, they were not claimable by the Crown and, therefore, he could proceed with the Activities.

[26] The Appellants submitted EPA does not provide sufficient education and awareness to the public regarding the Water Act, the regulations and associated policies. Ms. Gerber testified that when she contacted six different counties inquiring about their knowledge of the Water Act, she received inconsistent and often contradictory information regarding its implementation.

[27] Mr. Gerber referenced EPA’s Alberta Wetland Policy Implementation Fact Sheet Agriculture (the “Fact Sheet”), and noted it stated: “Wetland restoration on private land is voluntary, landowner interests will not be compromised by the wetland replacement program.”^{^[9]} Mr. Gerber said this statement meant he did not need to restore the disturbed wetlands.

[28] Mr. Gerber stated the Director’s decision was having financial and mental health impacts on the Appellants.

[29] Mr. Gerber submitted the evidence showed the Order was improperly issued, he requested that the Order be withdrawn and that the Government of Alberta provide better education on the Water Act for farmers.

2. The Director

[30] The Director submitted the Order was properly issued based upon the Water Act and that the terms and conditions of the Order were appropriate.

[31] The Director noted the Water Act, section 135(1) stated: “The Director may issue an enforcement order to any person, if, in the Director’s opinion, that person has contravened this Act, whether or not that person has been charged or convicted with respect to the contravention.”

[32] The Director submitted the Appellants were conducting an “activity” on the Lands, which is defined under section 1(1)(b) of the Water Act as:

“(i) placing, constructing, operating, maintaining, removing or disturbing ground, vegetation or other material, or carrying out any undertaking, including but not limited to groundwater exploration, in or on any land, water or water body, that

(A) alters, may alter or may become capable of altering the flow or level of water, whether temporarily or permanently, including but not limited to water in a water body, by any means, including drainage,

(B) changes, may change or may become capable of changing the location of water or the direction of flow of water, including water in a water body, by drainage or otherwise,

(C) causes, may cause or may become capable of causing the siltation of water or the erosion of any bed or shore of a water body, or

(D) causes, may cause or may become capable of causing an effect on the aquatic environment;

(ii) altering the flow, direction of flow or level of water or 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;

(iii) drilling or reclaiming a water well or borehole;

(iv) anything defined as an activity in the regulations for the purposes of this Act.

But does not include an activity described in subclause (i) or (ii) that is conducted by a licencee in a works that is owned by the licencee, unless specified in the regulations.”

[33] The Director noted a “water body” is defined under section 1(1)(ggg) of the Water Act as:

“…any location where water flows or is present, whether or not the flow or the presence of water is continuous, intermittent or occurs only during a flood, and includes but is not limited to wetlands and aquifers but does not include except for clause (nn) and section 99 ‘water body’ that is part of an irrigation works if the irrigation works is subject to a licence and the irrigation works is owned by the licencee, unless the regulations specify that the location is included in the definition of water body.”

[34] The Director stated the observed unauthorized activities of infilling of wetlands, constructing drainage ditches from the impacted wetlands and alteration of the Watercourse met the definition of an “activity” under the Water Act, and that commencing or continuing an activity except under an Approval or as otherwise authorized by the Water Act is an offence under section 142(1)(h).[10]

[35] The Director submitted he had the requisite authority under the Water Act to issue the Order to the Appellants for contravening section 36(1) of the Water Act, which states: “Subject to subsection (2), no person may commence or continue an activity except pursuant to an approval unless it is otherwise authorized under this Act.”

[36] The Director noted the Appellants did not dispute they had undertaken the Activities, and Mr. Gerber had acknowledged this to EPA. Additionally, the Appellants’ equipment had been observed undertaking the Unauthorized Activities. The Director stated the Appellants did not have an Approval and were not otherwise authorized under the Water Act to commence or continue any of the Activities.

[37] The Director submitted the Appellants have not met the onus of proof to demonstrate on a balance of probabilities that the Director erred in the determination of a material fact, and have not demonstrated that the terms and conditions of the Order are inappropriate.

[38] The Director stated the Water Act provides for the issuance of an enforcement order to require remedial measures to correct potential adverse effects on the environment, property or public safety. He said these orders are remedial in nature to support and promote the conservation and management of water.

[39] The Director stated the definition of a “water body” under section 1(1)(ggg) of the Water Act includes any location where water flows or is present, whether or not the flow or the presence of water is continuous, intermittent or occurs only during a flood, and includes but is not limited to wetlands.

[40] The Director noted that an EPA Wetland Specialist completed a desktop assessment of historic aerial photographs to determine whether wetlands were present on the Lands. The Wetland Specialist observed that “…these wetlands have been historically impacted over the years through farm practices including ditching and plowing.”[11]

[41] Ms. Courtney Kelly, an EPA Wetland Specialist, acknowledged at the hearing she did not conduct the original assessment, however, she testified that she could attest to the methods used by the original EPA Wetland Specialist, and that her review of the file reached the same conclusions.

[42] Ms. Kelly explained that the assessment was completed according to accepted professional practice, which included:

• a minimum of one image per decade in snow-free conditions must be reviewed;

• antecedent precipitation conditions must be calculated to determine a “normal” precipitation year;

• five aerial photographs must be reviewed from a “normal” year;

• the person conducting the assessment must be designated as a “wetland authenticator” with five years of experience, three of which must be related to wetlands; and

• the assessor uses nine “imagery indicators” to determine the presence of wetlands.

[43] The Director noted the Alberta Wetland Policy went into effect in July 2015. He stated the policy’s goal is to “…conserve, restore, protect and manage Alberta’s wetlands to sustain the benefits they provide to the environment, society and economy.”^{^[12]} The Director referenced the wetland definition stated in the policy, which is, “Lands saturated with water long enough to promote wetland or aquatic processes as indicated by the poorly drained soils, water tolerant vegetation, and various kinds of biological activity that are adapted to a wet environment.”[13]

[44] The Director stated that the Alberta Wetland Policy and the Alberta Wetland Identification and Delineation Directive[14] applied to wetlands that were previously disturbed by human activity. The Director determined the wetlands present on the Lands were each a “water body” as defined in section 1(1)(ggg) of the Water Act.^{^[15]}

[45] The Director stated at the hearing that he practices flexible management in his approach to get contraveners back into compliance and will work with them to evaluate and implement viable options to meet an enforcement order.

[46] The Director submitted the Order is a remedial tool, and provides authorization for the Appellants to take remedial actions to correct and restore the natural surface water flows across the Lands. The Director stated:

“The Order also requires the named party to submit a remedial plan with the objective of reclaiming the impacted wetlands, and restoring the natural drainage of water to pre-disturbance conditions. It is a common requirement of remedial orders…to have the person named in the order to submit a remedial plan to restore the impacted areas back to its pre-disturbance conditions”[16]

[47] The Director stated the requirement in the Order for completing a Wetland Assessment and Impact Report was not to determine the presence or absence of wetlands, but to determine the value of the wetlands identified by EPA and baseline conditions of the Lands prior to the Activities.

[48] The Director indicated the Unauthorized Activities Reclamation Plan required in the Order could include several options as outlined in the Alberta Wetland Policy, including restorative replacement or non-restorative replacement, and not just in-situ replacement, which is the return of the Lands to the condition prior to the Activities. He further emphasized that options could not be developed and evaluated without a proper assessment as outlined in the Order.

[49] The Director submitted the statutory requirement to obtain an Approval under the Water Act is not subject to whether a water body is claimable by the Crown. The Director referenced a previous Board decision stating “…there is a distinct difference between what is required for bed and shores to be ‘title vested in the Crown’ and the requirements for a water body to be classified as a wetland.”[17]

[50] The Director submitted the Appellants were incorrect in their assertion that they were exempt from holding a Licence for the unauthorized activities. The Director stated a Licence is a statutory instrument under section 49 of the Water Act that authorizes that person to:

(a) commence or continue a diversion of water for any purpose; or

(b) operate a works, except pursuant to a licence unless it is otherwise authorized by the Water Act.

The Director submitted that the issuance of a Licence authorizes the licencee to divert a specified volume of water or to operate works.

[51] The Director submitted the Order was issued as a result of the Activities undertaken by the Appellants, not as a result of a “diversion of water.” Therefore, the Director argued section 1(e) of Schedule 3 of the Water (Ministerial) Regulation did not apply to this appeal.

[52] The Director noted EPA undertakes a number of educational activities to raise awareness for various stakeholder groups on the Water Act’s regulatory requirements, but this does not relieve the Appellants of their statutory requirements under the Water Act.

[53] The Director testified he did not consider the Farmland Calculation Report in his decision and to his knowledge the Government of Alberta was not conducting any work to reconcile the Alberta Wetland Policy and associated documents with the Farmland Calculation Reports.

[54] The Director acknowledged the Fact Sheet, when read as a standalone document, could lead the reader to believe that wetland restoration on private land is voluntary. However, the Director maintained that the Activities were in contravention of the Water Act.

[55] The Director stated the wetland assessment completed by the Wetland Specialist would have screened out any ephemeral wetlands on the Lands that had been previously cultivated and were not included in the twelve identified wetlands.

[56] Ms. Kelly testified that mapping all of Alberta’s wetlands is still a goal for the Government of Alberta. Ms. Kelly also testified that Lamont County has one of the highest levels of wetland losses in the province.

[57] The Director submitted that while the Appellants’ Notice of Appeal and written submission indicated that lowering the bed of the Watercourse would have no impact on downstream lands, the downstream impacts from the Activities are not the legislative trigger for whether an Approval is required or not. The test is whether the Activities meet the definition of an “activity” as defined under the Water Act.

[58] The Director testified that he was unable to conclude if there were any potential hydrologic impacts from the modifications to drainage ditches or the Watercourse because he did not receive a timely and relevant response from the assigned EPA hydrologist.

[59] In response to the Appellants’ submissions regarding the presence or absence of water on the Lands, the Director submitted that the presence of water is not required for the Activities to meet the definition of “activity” under the Water Act.

[60] The Director stated global food security, while an important issue, was outside the scope of the appeal.

[61] The Director requested the Board recommend the Order be upheld, and submitted that the terms and conditions were appropriate.

IV. ISSUES

[62] The Board set the following issues for the hearing:

Issue 1: Was the Order properly issued? This considers both the Director’s legal jurisdiction and the factual basis for the Order.

Issue 2: Are the terms and conditions in the Order appropriate?

V. ANALYSIS

[63] The Board considered the Director’s Record, oral evidence and arguments, written submissions and relevant legislation in determining its recommendations to the Minister.

[64] The Board notes that the Parties agreed that Mr. Gerber of JimCo Farming completed the Activities on the Lands. The Parties also agree there are ephemeral water bodies on the Lands.

1. Was the Order properly issued?

[65] The Board heard evidence from the Parties regarding whether wetlands were present on the Lands, if they were ephemeral, temporary, seasonal, permanent, previously cultivated, or claimable by the Crown. The Appellants relied on the Farmland Calculation Report which did not identify any wetlands on the Lands,^{^[18]} although the Appellants acknowledged ephemeral water bodies and a Watercourse were present. The EPA Wetland Specialist used historical aerial photographs to find twelve wetlands and three ephemeral wetlands on the Lands and a possibility of four more.^{^[19]}

[66] The Board notes that section 1(ggg) of the Water Act defines “water body” as “… any location where water flows or is present, whether or not the flow or the presence of water is continuous, intermittent or occurs only during a flood, and includes but is not limited to wetlands and aquifers….” Based on the evidence, the Board finds water bodies as defined under the Water Act, are present on the Lands. The Board finds that whether those water bodies are wetlands, claimable by the Crown, or ephemeral, is irrelevant in determining whether the Order was properly issued.

[67] The Board also determined the Farmland Calculation Report was irrelevant to the determination of whether there were water bodies present on the land for the purposes of the Water Act. The Farmland Calculation Report is prepared for different purposes and under a different legislative regime. The Lamont County Assessor who prepared the Farmland Calculation Report has no jurisdiction to determine the presence or absence of a wetland for the purposes of the Water Act.

[68] The Board reviewed photographic evidence showing the Activities were completed on the Lands, which included infilling of water bodies, excavating and altering the drainage course of a Watercourse, and drainage ditches excavated to transport water from the water bodies to the Watercourse. The Board heard evidence from Mr. Gerber that the Activities were constructed to increase food production, increase the efficiency of food production by reducing chemical application overlap, managing surface runoff across the Lands, and managing saline groundwater.

[69] The Appellants argued they were not required to obtain a Licence under the Water Act as they were diverting saline water, which is exempt from requiring a Licence^{^[20]} and did not require a Licence under Schedule 3, section 1(e) of the Water (Ministerial) Regulation, which states: “The following diversions of water and any operations of works associated with those diversions do not require a licence: … (e) a diversion of saline groundwater…” Respectfully, a Licence and an Approval are distinct statutory instruments under the Water Act. A Water Act Licence is a statutory instrument authorizing a person to divert a specified volume of water or to operate works.

[70] The Board notes the Appellants provided no evidence to demonstrate the groundwater under the Lands was saline. The Board finds that while the Appellants were correct that a diversion of saline groundwater is exempt from requiring a Licence, they were mistaken in their interpretation that the Activities that were the subject of the Order was a diversion of saline water.

[71] The Board reviewed the following definitions from the Water Act:

• Section 1(fff) of the Water Act defines “water” as “all water on or under the surface of the ground, whether in liquid or solid state;”

• Section 1(m)(i) of the Water Act defines “diversion of water” as “the impoundment, storage, consumption, taking or removal of water for any purpose, except the taking or removal for the sole purpose of removing an ice jam, drainage, flood control, erosion control or channel realignment…”

[72] “Water” includes saline groundwater, and a diversion of saline groundwater involves the impoundment, storage, consumption, taking or removal” of saline groundwater. However, the Order addresses the Activities, which were identified in the Order as filling in of six wetlands with earthen material, creating four drainage ditches from wetland areas to a Watercourse, and altering the Watercourse. This is regardless of whether the wetlands are saline.

[73] The Board notes section 1(1)(b)(i)(A) and (B) of the Water Act defines “activity” as:

(B) changes, may change or may become capable of changing the location of water or the direction of flow of water, including water in a water body, by drainage or otherwise…”

[Emphasis by the Board.]

[74] Section 135(1) of the Water Act states: “The Director may issue an enforcement order to any person, if, in the Director’s opinion, that person has contravened the Act, whether or not that person has been charged or convicted with respect to the contravention.” The Board finds that the Order was issued based on Activities falling under the definition of an “activity” as per the Water Act, not as a result of a diversion of water.

[75] An “activity” under the Water Act requires an Approval or authorization. The Board notes from the evidence that the Appellants did not have an Approval and were not otherwise authorized under the Water Act to commence or continue any of the Activities. The Board finds that an activity as defined under the Water Act was completed without an Approval or authorization. The Board, therefore, finds that the Order was properly issued.

2. Are the terms and conditions in the Order appropriate?

i. Wetland Value and Reclamation Options

[76] The Director submitted that the purpose of issuing an enforcement order was remedial in nature. The Director stated:

“The Order also requires the named party to submit a remedial plan with the objective of reclaiming the impacted wetlands, and restoring the natural drainage of water to pre-disturbance conditions.

It is a common requirement of remedial orders issued under the Water Act to have the person named in the order to submit a remedial plan to restore the impacted areas back to its pre-disturbance conditions.”[21]

[77] The Director stated at the hearing, “The [Alberta Wetland] Policy will minimize the loss and degradation of wetlands, while allowing for continued growth and economic development in the province.” [Emphasis by the Board.] The Director testified that he considers people’s financial situation and resources when making his decisions. Responding to questions from the Board, the Director stated that when making his decision he did not consider Section 2(b) of the Water Act, but did consider section 2(c). The Board notes that sections 2(b) and (c) state:

“The purpose of this Act is to support and promote the conservation and management of water, including the wise allocation and use of water, while recognizing …

(b) the need for Alberta’s economic growth and prosperity;

(c) the need for an integrated approach and comprehensive, flexible administration and management systems based on sound planning, regulatory actions and market forces…”

[78] The Board heard evidence from the Director that he is flexible in the approach to the Unauthorized Activities Reclamation Plan detailed in the Order, and the plan could include several options as outlined in the Alberta Wetland Policy, including restorative replacement or non-restorative replacement, and not just in-situ replacement, which requires returning the Lands to the condition prior to the Activities.

[79] The Board finds the terms in the Order and what was provided in the Director’s written submissions are more prescriptive than what the Board heard from the Director and EPA staff during the hearing. The Board finds that the Director’s submissions and the Order imply the Appellants are required to return the Lands to its original pre-disturbance condition, which assumes that all the identified water bodies on the Lands are wetlands with sufficient value that they must be restored.

[80] The Board understands that based on the evidence, considerable wetland loss has already occurred over a century of agricultural activity in Lamont County, compared to other parts of the province. Therefore, wetland preservation in this area is of importance. However, the Board also heard evidence that not all wetlands are of equal value, and that economic and agricultural interests should be considered. The Alberta Wetland Policy states:

“…wetland value will be assessed based on the relative abundance on the landscape, supported biodiversity, ability to improve water quality, importance to flood reduction, and human uses. Individual wetlands will be assessed against these key criteria and assigned an overall wetland value. Relative wetland value will be used to inform wetland management.”[22]

[81] The Board also heard evidence from the Director that the purpose of the Wetland Assessment and Impact Report was not only to determine the presence of wetlands prior to the Activities but to also determine the value of any identified wetlands as per the Alberta Wetland Policy. Establishing the value of identified wetlands would help determine the reclamation options, which would not necessarily mean in-situ restoration.

[82] The Director’s Record shows that correspondence with the Appellants did not adequately explain that there is a range of value of wetlands, and that a number of reclamation options, other than in-situ restoration, may exist to get the Appellants back into compliance.

[83] The Board is concerned that the Order and the Director’s written submissions appear to imply that the Lands must be restored to its original pre-disturbance state, which would be a considerable expense to the Appellants, and may not be necessary or serve the Alberta Wetland Policy intention of balancing preservation and economic growth. Therefore, the Board finds that further clarification of the purpose of the Wetland Assessment and Impact Report is warranted in the Order.

[84] The Board also finds the Order requires further direction and information regarding the evaluation of potential reclamation options, based on the Wetland Assessment and Impact Report.

[85] While the Board is not presupposing that reclamation in some form will not be one of the options, the Board finds using the term “mitigation” instead of “reclamation” in the Order is warranted.

ii. Potential Hydrologic Impacts from the Modification of the Watercourse

[86] Mr. Gerber submitted that there were no impacts to downstream lands from the alteration of the Watercourse, but did not present any evidence to support this claim. There was no evidence before the Board regarding the potential upstream or downstream hydrologic impacts of the Activities, particularly to adjacent landowners. No evidence was provided regarding where the Watercourse drains to or the volume of water that is potentially being stored or conveyed. The Board is concerned that there was no response from the EPA hydrologist regarding potential impacts from altering the Watercourse before the Order was issued.

[87] The Board finds that the Order included details regarding the impact assessment and reclamation of the wetlands but did not go into sufficient detail regarding the overall hydrology of the Lands and potential impact on the surrounding area, or the hydrologic assessment and potential restoration of the Watercourse. The Appellants were clear that the purpose of the Activities, including the alterations of the Watercourse, was to remove water from the Lands, however, the Parties did not provide information on the where that water would go. The water must go somewhere, and without a water storage site the Board can only assume it will flow to properties downstream of the Lands. The Board finds this concerning, given the unknown potential and magnitude of impacts to adjacent landowners. Therefore, the Board finds that further detail regarding the hydrologic impacts of the Watercourse and its potential restoration is warranted in the Order, as per section 38(2)(b)(ii) of the Water Act.^{^[23]}

[88] The Director submitted that the Alberta Wetland Identification and Delineation Directive[24] applies to wetlands that have been previously disturbed by human activity. The Board notes that the requirements for the Wetland Assessment and Impact Report described in the Order are derived from the Wetland Identification and Delineation Directive. Therefore, the Board finds that for further clarity, this Directive should be referenced in the Order.

iii. Schedule of Activities

[89] As the deadlines in the Order have passed, the Board recommends new dates for the submissions, which are outlined in Appendix A of this Report and Recommendations. When determining these dates, the Board considered seasonal conditions, agricultural activities, and field accessibility. These considerations were balanced with requiring a timely implementation of the Order requirements. The dates are flexible and can be altered with the approval of the Director.

iv. Appropriateness of the Terms and Conditions of the Order

[90] Notwithstanding the findings and observations above, the Board finds the terms and conditions of the enforcement order are appropriate, subject to:

• revision of the dates;

• greater direction and information regarding the purpose of the Wetland Assessment and Impact Report;

• greater detail regarding the hydrologic assessment;

• greater information regarding the mitigation options evaluation; and

• added references to the relevant directives.

3. Other Matters Raised by the Appellants

[91] Mr. Gerber’s main argument for completing the Activities was centered on the impacts to global hunger, food security, and food production efficiency if the Activities had not been completed. While these are very important issues, they are beyond the scope of the Director or the Board to consider. The Director makes decisions within the parameters of the Water Act, and the Board makes its recommendations to the Minister based on the appropriateness of the Director’s decision. A “big picture” focus is the responsibility of those who develop government policy, and the Board must assume such provincial, national, and international matters were considered in the context of the wetland policy deliberations.

[92] Mr. Gerber and Mr. Brearley submitted and testified that there was no standing water when the EPO completed his site inspection on October 26, 2021, as opposed to what the EPO documented. Mr. Gerber also argued that the water bodies were ephemeral and not subject to Crown ownership and, therefore, were not wetlands.

[93] Whether a waterbody is ephemeral or permanent and whether it is subject to an ownership claim by the Crown, is not relevant to the determination of an activity as defined under the Water Act. Rather, the concern is in the potential impact on downstream or upstream land owners and the harm that can result from the diversion of water, be it ephemeral or not. An Approval is required to prevent harm to others and harm to the aquatic environment.

[94] Mr. Gerber noted the Fact Sheet states, “landowner interest will not be compromised by the wetland replacement program.” The Fact Sheet states it is “an overview on implementation of the Alberta Wetland Policy for agricultural producers.”^{^[25]} It provides information on the Alberta Wetland Policy, but it is not policy itself, and does not carry the force of law. The Fact Sheet is subordinate to the requirements of the Water Act and its regulations. The Board notes that in the Fact Sheet, the paragraph before the statement quoted by Mr. Gerber states: “It is the landowner’s responsibility to ensure all regulatory requirements are met prior to commencing work in or near a wetland…” The Board finds this statement is harmonious with the requirements for obtaining an Approval for an activity under the Water Act. The statement quoted by Mr. Gerber does not provide authority for landowners to disregard the legislative requirements.

[95] Although the Fact Sheet is a subordinate document, it was issued by EPA, and as such it has weight in the public eye. The Board expresses its concerns with the Fact Sheet below in its Comments section, but the Board cannot consider an informational document on the same level as the Water Act and its regulations. The Board finds the Fact Sheet is not relevant to its considerations on whether the Order was properly issued and whether the terms and conditions are appropriate.

VI. CONCLUSION

[96] The issues before the Board were:

1. Was the Order properly issued? This considers both the Director’s legal jurisdiction and the factual basis for the Order; and

2. Are the terms and conditions in the Order appropriate?

[97] On the first issue, the Board finds that the Director properly issued the Order.

[98] On the second issue, the Board finds that in general the terms and conditions were appropriate. However, the Board finds the Order did not sufficiently detail the mitigation options available to the Appellants. The evidence supports a recommendation that the terms and conditions be varied to assist the Parties in assessing and determining the impacts to the Lands resulting from the Activities and ultimately determine and implement mitigation options. The Board recommends that greater detail and clarity be incorporated into the Order, specifically:

• a more fulsome description on the purpose of the Wetland Assessment and Impact Report;

• greater detail regarding the hydrologic assessment particularly as it relates to the modification of the Watercourse;

• clarification regarding the options available for mitigation and how those are evaluated; and

• additional references to the relevant directives and policies the Director relied on in drafting the Order.

[99] During this appeal, the Board issued a stay of the Order. This stay is lifted as of the date the Minister signs the Ministerial Order regarding this Appeal.

VII. RECOMMENDATIONS

[100] Under section 99(1) of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-13 (“EPEA”), the Board must provide the Minister with its recommendations regarding the issues in this Appeal.[26] The Board recommends the Minister vary Water Act Enforcement Order No. EO-WA-37279 issued to the Appellants as detailed in Appendix A of this Report and Recommendations.

[101] With respect to sections 100(2) and 103 of EPEA, the Board recommends that copies of this Report and Recommendations, and the decision of the Minister, be sent to the following:

• Mr. Jim Gerber and Mrs. Terese Lepard Gerber;

• Mr. Maxwell Harrison, Director, Compliance Manager, North Region – Capital District, Alberta Environment and Protected Area; and

• Ms. Jodie Hierlmeier, Environmental Law Section, Alberta Justice and Solicitor General.

[102] The Board notes that the Appellants did not reserve their right to file an application for costs.

VIII. COMMENTS

[103] The Board heard evidence from the Appellants that EPA does not provide sufficient education and awareness to the public regarding the Water Act, the regulations and associated policies. Mrs. Gerber stated at the hearing that when she contacted six different counties inquiring about their knowledge of the Water Act, she received inconsistent and often contradictory information regarding its implementation.

[104] Mr. Gerber also discussed the Farmland Calculation Report in detail pointing out that the Farmland Calculation Report did not identify any wetlands on the Lands.

[105] The Board finds that it would be helpful if the EPA considered working with municipalities to include a disclaimer on the Farmland Calculation Report indicating that the report is not an assessment as to whether or not wetlands exist on the property in question. Consideration could also be given to referencing the Water Act on the Farmland Calculation Report.

[106] The Board finds the Fact Sheet produced by Alberta Agriculture and Irrigation could be confusing when read as a standalone document, and could lead the reader to believe that wetland restoration on private land is voluntary. This is further supported by the statement in the Fact Sheet that “…landowner interests will not be compromised by the wetland replacement program.”^{^[27]}

[107] The Board finds that it would be helpful if EPA considered an initiative to review and potentially modify the Fact Sheet to provide greater clarity on how the Alberta Wetland Policy is implemented in agricultural settings, including consideration of balancing wetland value with agricultural and economic interests.

[108] The Board heard that the Province still has a goal to map all of the wetlands in Alberta, and provide greater and easier public access to this information. The Board appreciates this initiative and believes this will continue to support the stewardship and management of Alberta’s wetlands.

Dated on December 21, 2022, at Edmonton, Alberta.

-original signed-

__________________

Anjum Mullick

Board Member and

Panel Chair

-original signed-

__________________

Dave McGee

Board Member

-original signed-

__________________

Kurtis Averill

Board Member

IX. APPENDIX “A”

WATER ACT

BEING CHAPTER W-3 R.S.A. 2000 (the "Act")

ENFORCEMENT ORDER NO. EO-WA-37279

JimCo Farming Inc.

Box 719

Coronation, Alberta T0C 1C0

Jim Gerber

Box 719

Coronation, Alberta T0C 1C0

WHEREAS JimCo Farming Inc. is the registered owner of lands legally described as SE 24-53-16 W4M, in Lamont County, in the Province of Alberta (the "Lands");

WHEREAS JimCo Farming Inc. purchased the Lands on August 6, 2021;

WHEREAS Jim Gerber and Terese Lepard are the sole directors of JimCo Farming Inc.;

WHEREAS on October 25, 2021, Alberta Environment and Parks ("AEP"), as it was then referred to, received a public complaint regarding the infilling of multiple wetlands on a quarter section located at SE-24-53-16 W4M;

WHEREAS on October 26, 2021, an AEP inspector (the "Inspector") conducted a site inspection on the Lands and observed:

• earthen material (the "Fill Material") placed within wetlands (the "Impacted Wetlands"),

• piles of the Fill Material present throughout the Lands,

• equipment on site including:

• a landscaper,

• a bobcat,

• a service truck,

• two site trailers, and

• two bulldozers,

• the Fill Material being deposited into wetlands with the landscaper, and

• standing water and wetland vegetation surrounding the Fill Material;

WHEREAS on October 26, 2021, Mr. Gerber met with the Inspector and explained that:

• he was draining sloughs to increase farmable land on the Lands, and

• Mr. Gerber would not allow the Inspector to inspect the Lands;

WHEREAS on November 3, 2021, the Inspector sent a Notice of Non-Compliance to JimCo Farming Inc. that directed that:

• the activities observed during the October 26, 2021 site inspection must stop, and

• the directors of JimCo Farming Inc. must contact the Inspector by November 8, 2021;

WHEREAS on November 5, 2021, two AEP inspectors and a Lamont County Peace Officer conducted a site inspection on the Lands and observed:

• equipment on site including:

• a bulldozer,

• two landscapers,

• a tractor,

• a bobcat,

• a service truck, and

• two site trailers,

• the Fill Material within six wetland areas,

• four drainage ditches leading from wetland areas to a watercourse (a creek) that crosses the Lands, and

• alteration of the watercourse;

Collectively hereafter referred to as the "Unauthorized Activities";

WHEREAS on November 5, 2021, two AEP inspectors and a Lamont County Peace Officer met with Mr. Gerber and provided the Notice of Non-Compliance. The AEP inspectors requested that Mr. Gerber stop the Unauthorized Activities;

WHEREAS during the inspection Mr. Gerber was onsite and he explained to the AEP inspectors that:

• the watercourse was excavated to improve drainage flow as water would pool and the Land could not be farmed,

• the Impacted Wetlands were filled in by Mr. Gerber, and

• the drainage ditches were excavated to move water from the Impacted Wetlands to the watercourse;

WHEREAS on November 9, 2021, AEP Compliance called Mr. Gerber and advised Mr. Gerber to stop the Unauthorized Activities on the Lands;

WHEREAS Mr. Gerber explained during the call with AEP Compliance that he believes the Unauthorized Activities are exempt under Water (Ministerial) Regulation Schedule 3 (1)(e) for the diversion of saline groundwater;

WHEREAS AEP Compliance explained to Mr. Gerber during the call that Water (Ministerial) Regulation Schedule 3(1)(e) provides an exemption from having to obtain a Water Act License for groundwater diversion and that the Unauthorized Activities is an activity requiring an Approval under the Water Act. Mr. Gerber stated he was going to continue with the Unauthorized Activities on the Lands;

WHEREAS on November 16, 2021, an AEP Wetland Specialist reviewed historic aerial photographs of the Lands;

WHEREAS the AEP Wetland Specialist identified that wetlands were present on the Lands, which are classified as Swamps and Marshes;

WHEREAS the Inspector confirmed that a Water Act Approval had not been issued for the Unauthorized Activities;

WHEREAS the Impacted Wetlands are a "water body'' as defined in section 1(1)(ggg) of the Water Act;

WHEREAS each of the Unauthorized Activities are an "activity" as defined in section 1(1)(b) of the Water Act;

WHEREAS section 36(1) of the Water Act states that no person may commence or continue an activity except pursuant to an Approval unless it is otherwise authorized under this Act;

WHEREAS AEP has not issued an Approval under the Water Act to JimCo Farming Inc. or any other person authorizing any of the Unauthorized Activities, and these activities are not otherwise authorized under the Water Act;

WHEREAS JimCo Farming Inc. is a “person responsible” for the Unauthorized Activities pursuant to section 1(1)(kk) of the Water Act and section 1(5) of the Water (Ministerial) Regulation;

WHEREAS Maxwell Harrison, Compliance Manager, Northern Region, has been appointed as a Director, for the purpose of issuing Enforcement Orders under the Water Act (the "Director");

WHEREAS the Director is of the opinion that JimCo Farming Inc. has contravened section 36(1) of the Water Act, which is an offence under section 142(1) (h) of the Water Act, by conducting the Unauthorized Activities without an approval;

WHEREAS the watercourse (the creek) providing drainage from the parcel upstream through to the parcel downstream has been significantly modified and it is unknown what the impact on the hydrology is;

WHEREAS the Alberta Wetland Mitigation Directive provides options to JimCo Farming Inc. to become compliant with the Water Act, including:

• reclamation of one or more of the Impacted Wetlands and watercourse;

• undertaking a wetland replacement project to restore a previously drained wetland or construct a new wetland (permittee-responsible replacement);

• payment of a wetland replacement fee; or

• a combination of payment of a wetland replacement fee, permittee-responsible replacement, or reclamation of one or more of the Impacted Wetlands and watercourse;

WHEREAS a Wetland Assessment and Impact Report is required to develop and support appropriate mitigation options and to determine the value of the Impacted Wetlands as per the Alberta Wetland Mitigation Directive and the Alberta Wetland Identification and Delineation Directive; and

WHEREAS it is required to quantify the potential hydrologic impacts from altering the watercourse (the creek) and to develop mitigation options, which can be included in the Wetland Assessment and Impact Report as appropriate.

THEREFORE, I, Maxwell Harrison, Director, pursuant to section 135(1) and 136(1) of the Water Act, HEREBY ORDER THAT:

1. JimCo Farming Inc. shall immediately cease all Unauthorized Activities on the Lands;

2. JimCo Farming Inc. shall retain an Authenticating Wetland Professional that meets each of the requirements of section 4.0 of "Professional Responsibilities in Completion and Assurance of Wetland Science, Design and Engineering Work in Alberta" (Government of Alberta, May 1, 2017) (the "Authenticating Professional");

3. JimCo Farming Inc. shall, on or before March 15, 2023, submit to the Director in writing all the following information:

a. The name and contact information of the Authenticating Professional, and

b. A summary of how the Authenticating Professional meets all the requirements of Clause 2 of this Order.

Wetland Assessment and Impact Report

4. On or before July 17, 2023, JimCo Farming Inc. shall submit to the Director for the Director's review and written approval, a written Wetland Assessment and Impact Report, prepared, stamped, and signed by the Authenticating Professional referenced in Clause 2.

5. As per the Alberta Wetland Identification and Delineation Directive (June 2017), the Wetland Assessment and Impact Report shall include at least each of the following:

a. The conditions of each of the Impacted Wetlands prior to the Unauthorized Activities, including, all the following for each of the Impacted Wetlands:

i. Delineation of the wetland boundary,

ii. Classification, determined in accordance with the "Alberta Wetland Classification System" (Government of Alberta, June 1, 2015),

iii. Landscape characteristics, including topography and slope,

iv. Hydrology, including:

(1) A water balance calculation to support targeted wetland classification, and

(2) A statement certifying no impacts to upstream or downstream landowners,

v. Soils,

vi. Vegetation, and

vii. Zones of wetland function;

b. The hydrology of the watercourse (the creek) and any impact the Unauthorized Activities may have on the lands and waterbodies upstream and downstream of the Lands;

c. The current location and current physical characteristics of the Unauthorized Activities;

d. Whether current site conditions will accurately reflect the wetland value from an ABWRET-A assessment (Government of Alberta, 2015);

e. All the effects of the Unauthorized Activities; and

f. A Mitigation Proposal.

Mitigation Proposal

6. The Mitigation Proposal shall advise the Director in writing which of the following mitigation actions outlined in the Alberta Wetland Mitigation Directive (December 1, 2018), JimCo Farming Inc. proposes to undertake to become compliant with the Water Act:

a. Reclamation of one or more of the Impacted Wetlands;

b. Payment of a wetland replacement fee;

c. Permittee-responsible replacement (JimCo will undertake their own wetland replacement project); or

d. Any combination of payment of a wetland replacement fee, permittee-responsible replacement, or reclamation of one or more of the Impacted Wetlands.

7. The Mitigation Proposal shall advise the Director in writing as to the mitigation actions JimCo Farming Inc. proposes to undertake with respect to the watercourse (the creek).

8. The Director shall review the Wetland Assessment and Impact Report and the Mitigation Proposal and advise JimCo Farming Inc. if the Mitigation Proposal is acceptable or what changes to the Mitigation Proposal are required in the Director’s discretion.

Unauthorized Activities Mitigation Plan

9. Within 30 days of receiving written approval from the Director for the Wetland Assessment and Impact Report and the Mitigation Proposal, JimCo Farming Inc. shall submit to the Director for the Director's written approval, an Unauthorized Activities Mitigation Plan, prepared, stamped, and signed by the Authenticating Professional referenced in Clause 2.

10. The Unauthorized Activities Mitigation Plan shall include a schedule in table format of implementation for the work proposed with a completion date of no later than November 30, 2023 (the "Completion Date").

Reclamation Option

11. If the Mitigation Proposal approved by the Director involves reclamation of the Impacted Wetlands, JimCo Farming Inc. shall also include at least each of the following in the Unauthorized Activities Mitigation Plan:

a. A detailed plan to reclaim areas of wetland(s), including the following:

(1) The method of wetland restoration,

(2) Wetland size,

(3) Wetland classification, and

(4) Wetland compensation value;

b. If the Mitigation Proposal includes the use of ditch plugs to restore the natural drainage of water to pre-disturbance conditions, the following shall be included:

(1) Where the ditch plug material will be sourced from,

I. if source material is located on the Lands, a figure detailing the location and conditions at the location, and

II. if source material is imported, analytical results outlining the conditions of the material prior to importation,

(2) A complete list of the types of equipment to be used, and

(3) Methods to be used when installing ditch plugs, following Section 9(1) to 9(4) of the Code of Practice for Wetland Replacement Works; and

c. A detailed description of the measures to prevent all erosion, siltation, and other adverse effects to all other water bodies during all the work carried out in the implementation of the Unauthorized Activities Reclamation Mitigation Plan.

12. If the Mitigation Proposal approved by the Director involves reclamation of the watercourse (the creek), JimCo Farming Inc. shall also include a detailed plan to restore the hydrology to pre-disturbance conditions.

Replacement or Payment

13. If the mitigation activity approved by the Director involves replacement of the Impacted Wetlands or replacement payment, JimCo Farming Inc. shall include at least each of the following in the Unauthorized Activities Mitigation Plan:

a. Area of the wetland(s), in hectares, that will be permanently lost;

b. Replacement area owed for each wetland impacted;

c. Replacement rate of each wetland;

d. Replacement design plan, if conducting permittee-responsible replacement, following the Wetland Restoration and Construction Directive;

e. Number of credits to be purchased if the replacement mechanism is purchasing credits from a third-party wetland bank as per the Alberta Wetland Mitigation Directive; and

f. Total payment if the replacement mechanism is payment to the in-lieu fee program as per the Alberta Wetland Mitigation Directive.

Commencement and Completion

14. JimCo Farming Inc. shall only complete the work described in the Unauthorized Activities Mitigation Plan in accordance with the Director's written authorization, which may include additional requirements at the Director’s discretion.

15. JimCo Farming Inc. shall provide the Director with 5 days' notice by email prior to commencing the work set out in the Unauthorized Activities Mitigation Plan as approved by the Director.

16. JimCo Farming Inc. on or before November 30, 2024, shall provide to the Director, a written Unauthorized Activities Mitigation Validation Report documenting the actions taken as part of the Unauthorized Activities Mitigation Plan.

17. The Director may extend the dates in this Order to reflect field and weather conditions and other matters in the Director’s discretion.

DATED at the City of Edmonton, in the Province of Alberta, this sixth day of January 2022.

- original signed by -

Maxwell Harrison, Director Compliance Manager

North Region - Capital District

Notwithstanding the above requirements, the Parties shall obtain all other necessary approvals or authorizations required to comply with this order.

Take notice that this enforcement order is a remedial tool only, and in no way precludes any enforcement proceedings being taken regarding this matter under the Water Actor any other legislation.

Ministerial Order

3/2023

Environmental Protection and Enhancement Act

R.S.A. 2000, c. E-12

Water Act

R.S.A. 2000, c. W-3

Order Respecting Environmental Appeals Board

Appeal Nos. 21-023 and 21-024

I, Sonya Savage, Minister of Environment and Protected Areas, pursuant to section 100 of the Environmental Protection and Enhancement Act, order that:

the decision of the Director, Compliance Manager, North Region – Capital District, Regulatory Assurance Division, Alberta Environment and Protected Areas (the “Director”), to issue Water Act Enforcement Order No. EO-WA-37279 to Jim Gerber and JimCo Farming Inc. is repealed and replaced in its entirety by Appendix A to this Order.

Dated at the City of Edmonton, in the Province of Alberta, this 15th day of January, 2023.

”original signed by”

Honourable Sonya Savage, K.C.

Minister

Appendix A