Reclamation Criteria – Seeded Species
In this decision, the Alberta Energy Regulator (“AER”) revoked the decision of the AER Enterprise Reclamation Group (“ERG”) to issue a reclamation certificate to Vantage Point Resources Inc. (“Vantage”).
Vantage, as lessee and operator, applied for a reclamation certificate for a well site and access road about 30 kilometers east of Oyen and about 140 km north of Medicine Hat. The owner of the site filed a statement of concern (“SOC”) in respect of Vantage’s application.
In response to the SOC, an ERG reclamation assessor visited the site, completed an assessment of the site, and recorded her assessment in a reclamation certificate program criteria report. Based on the results of the detailed site assessment (“DSA”) submitted by Vantage and her own assessment, the ERG assessor recommended the AER issue the reclamation certificate. The AER decision maker, by way of reasons, disposed of the owner’s SOC without a hearing and issued the reclamation certificate.
The owner of the site requested a regulatory appeal, which the AER granted.
History of the Site
One well was drilled on the site in 1992 and abandoned in 1994. Multiple operators held the lease for the site over the years. The site was first reclaimed in the early 2000s, with seeding taking place about that time. In preparation for filing an application for a reclamation certificate, the operator at the time found a portion of the site to be contaminated. Subsequently, the contaminated portion of the site was remediated and then reclaimed a second time, with reseeding in 2013.
Vantage acquired the site in 2018. It did not conduct reclamation or remediation work on the site. The remediation work is not an issue in this regulatory appeal. After it became the lessee and operator of the site, Vantage had the DSA carried out by a consultant. The DSA was completed and submitted as part of a routine reclamation certificate application. The lease perimeter fence was removed at or near the time of the reclamation certificate application, except for six fence posts that remain in the northernmost low-lying area.
The owner of the site was concerned that the site was seeded with a forage/hay seed mix and not with Altai wild rye, even though he told both the operator who conducted the reclamation work before the remediation in 2013, and the operator who conducted the post-remediation reclamation work, that he wanted the site seeded with Altai.
The duty to conserve and reclaim land, and obtain a reclamation certificate, arises from Section 137 of the Environmental Protection and Enhancement Act (“EPEA”). “Reclamation,” as defined in EPEA, includes the procedures, operations, or requirements specified in the regulations. Under Section 2 of EPEA’s Conservation and Reclamation Regulation (“CRR”), the objective of conservation and reclamation is to ensure the reclaimed land has an equivalent land capability.
The CRR also requires operators to reclaim specified land in accordance with applicable standards, criteria, and guidelines. Specified land is land that is being or has been used or held for, or in connection with, certain activities that include the construction, operation, or reclamation of a well.
The applicable criteria are found in the 2010 Reclamation Criteria for Wellsites and Associated Facilities for Cultivated Lands (“reclamation criteria”) and are applied “to evaluate whether a site has met equivalent land capability.” The reclamation criteria specify that an operator must include in its application an evaluation of whether the lease site meets the reclamation criteria by comparing the reclaimed area to adjacent lands in terms of vegetation, soil, and landscape.
In addition, Section 12(1)(a) of the CRR states that an application for a reclamation certificate is to contain the same information as is required in the well site reclamation application form. This information includes a DSA that provides comparisons of on- and off-site landscape, vegetation, and soil parameters using the reclamation criteria and documents whether, in the opinion of the assessor, a site meets equivalent land capability. Consistent with the CRR definition of equivalent land capability, the reclamation criteria do not require lease sites to be returned to the exact state they were in before the activity occurred. According to Section 6.1 of the reclamation criteria, an equivalent land capability is “based on land function and operability that will support the production of goods and services consistent in quality and quantity with the surrounding lands.”
Specified Enactment Direction 002: Application Submission Requirements and Guidance for Reclamation Certificates for Well Sites and Associated Facilities (“SED 002”) sets out specific requirements for the information to be included in an application for a reclamation certificate.
As noted, the reclamation criteria require evaluation of landscape, soil, and vegetation parameters on the reclaimed site and consultation with the current landowner or occupant.
Does the Site Meet the Applicable Reclamation Criteria?
(a) Compatibility of Seeded Species Used on the Reclaimed Site with the Adjacent, Off-Site Species
To meet the equivalent land capability standard, the vegetation established on the site must be comparable to off-site vegetation as evaluated using the DSA. The on-site crop must be “compatible” with the off-site, or, if it is not, it must have been approved by the landowner or must be able to be managed the same as the off-site crop.
In this case, the on-site crop was not approved by the owner of the site. The AER, therefore, had to decide what “compatible” means in these circumstances.
The owner of the site estimated the Altai concentration on the site to be significantly lower than the concentration in the Altai field. However, both the DSA and the ERG assessor concluded the concentrations were comparable. The DSA estimate was based on a close assessment of sample locations on and off the site. In addition, the photos included with the DSA and reviewed with the owner of the site at the hearing show a noticeable percentage of Altai on site, although the photos do not allow for an estimate or comparison of the relative concentrations. The AER found the DSA assessment persuasive and conclude that, while the vegetation on the site was not the same as the vegetation on the adjacent lands, it was comparable.
The AER found that the Altai field has not been used for Altai seed crop and is not being managed for that purpose. As a result, the AER was persuaded that the healthy perennial forage established on the site is compatible with the adjacent off-site species.
(b) Incorporation of Vegetation Established on the Reclaimed Site in the Operation and Management of Adjacent Lands
To meet the equivalent land capability standard, vegetation established on a reclaimed site must be able to be incorporated into the operation and management of adjacent lands. The reclamation criteria do not include a definition of operability in the vegetation criteria. In the AER’s view, the criteria suggest that factors such as differences in crop measurement and crop health and the presence of weeds can negatively affect the incorporation of a reclaimed site into the operation and management of the adjoining lands.
The AER found that it had no reason to question the DSA’s conclusion that crop measurement and health and presence of weeds on the site were comparable to the adjacent lands.
Altai has been seeding naturally onto the site. Likewise, the evidence of crested wheatgrass and other grasses off-site confirms the off-site vegetation includes species other than Altai. The owner considered that unacceptable in what he described as a seed crop. If the Altai field was being actively managed as a seed crop, the presence of other forage species might cause the owner to manage the site differently than the Altai field. However, the AER found that the Altai field is not being actively managed, so there is no direct and adverse interference with the owner’s management of the adjacent land.
Facilities and features such as fence posts can interfere with the incorporation of reclaimed lands into the operation and management of adjacent lands and can also pose safety issues. SED 002 requires written approval from the landowner if fences are to be left in place. Otherwise, they must be removed and the holes filled before an application for a reclamation certificate is filed. Considering Vantage’s admission about the fence posts and in the absence of the owner’s written consent to leave fence posts in place on the site, Vantage should have removed the six remaining fence posts before the reclamation certificate application was filed. The presence of the fence posts on the site without the owner’s expressed consent prevented the AER from finding that the site can be incorporated into the operation and management of the adjacent lands.
(c) Was There Adequate Landowner Consultation Concerning Seeded Species Used on the Reclaimed Site?
The reclamation criteria and SED 002 clearly require consultation as a part of the reclamation process leading up to the application for a reclamation certificate. The reclamation criteria do not provide guidance on the sufficiency of consultation but does state in Section 10.1 that vegetation choices should be made along with the land manager, who in this case is the landowner.
The AER found that Vantage did not consult as required by the SED 002 and the reclamation criteria. This is because, before filing its application for the reclamation certificate, Vantage did not consult directly with the owner, nor did it take steps to ensure that its consultant had engaged appropriately with the owner regarding whether he had any concerns about the site.
Was the Application Technically Complete and Accurate?
SED 002 provides detailed guidance to operators about the requirements for completing an application for a reclamation certificate. The provisions set out above require operators to consult with landowners so that they can learn and address landowner concerns and ensure that plant species used in the reclamation process are “acceptable.” Section 6.2.3 of SED 002 requires that the reclamation application indicate unresolved concerns. Vantage’s application did not indicate unresolved concerns but rather suggested that the owner had no concerns.
In the AER’s view, the application and supporting materials were incomplete and inaccurate for two reasons. First, they did not reflect the fact that at least six fence posts remained on the site at the time the application was filed. Second, they did not reflect the owner’s concern about the use of non-Altai seed on the site. Because of these two shortcomings, the AER also found that the application was potentially misleading.
The AER decided to revoke the decision to issue the reclamation certificate. Vantage was directed to take steps to remove the six remaining fence posts and properly fill the post holes or obtain written consent from the owner to leave them in place before refiling an application for a reclamation certificate for the site. Vantage must also consult with the owner and accurately report any concerns that are unresolved at the time the new application is filed. It was the AER’s view that allowing operators to file applications for reclamation certificates that are inaccurate or potentially misleading is not consistent with the safe, orderly, and efficient development of energy resources in Alberta. Inaccurate applications or potentially misleading applications effectively prevent the AER from fully and effectively discharging its mandate.