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An Act to Amend the Clean Environment Act

Legislature :
54
Session :
5
Bill No. :
19
Member :
Hon. Jardine
First Reading :
2002-12-5
Second Reading :
2002-12-6
Committee of the Whole :
2003-3-19
Amended :
Third Reading :
2003-3-20
Royal Assent :
2003-4-11
Download PDF :
Bill 19

Text of Bill :


Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1                              Section 1 of the Clean Environment Act, chapter C-6 of the Revised Statutes, 1973, is amended by adding the following definitions in alphabetical order:



"coastal area" means



(a)               the air, water and land between



(i)         the lower low water large tide, and



(ii)       one kilometre landward of the higher high water large tide or one kilometre landward of any coastal feature, whichever extends farther inland, or



(b)               in the case of a watercourse named in the first column of Schedule A of New Brunswick Regulation 90-80 under the Clean Water Act, the air, water and land between the lower low water large tide and one kilometre upstream of the line joining the associated location described in the second and third columns of Schedule A of that regulation;



"Coastal Designation Order" means an Order made under subsection 6.4(2), and includes any requirements imposed under subsection 6.4(6) in relation to that Order and, unless otherwise indicated, any description or plan of the protected area that is published or filed under section 6.4 in relation to that Order;



"coastal feature" means a beach, coastal marsh, rock platform or other intertidal area, dune or dyked land;



"higher high water large tide" means the average elevation of the highest high tide based upon the most recent nineteen years of tidal predictions for which there is data;



"lower low water large tide" means the average elevation of the lowest low tide based upon the most recent nineteen years of tidal predictions for which there is data;



"Minister of Natural Resources and Energy" includes a person designated by the Minister of Natural Resources and Energy to act on that Minister's behalf;



"watercourse" means a watercourse as defined in the Clean Water Act;



"wetland" means land that



(a)               either periodically or permanently, has a water table at, near or above the land's surface or that is saturated with water, and



(b)                      sustains aquatic processes as indicated by the presence of hydric soils, hydrophytic vegetation and biological activities adapted to wet conditions;



"Wetland Designation Order" means an Order made under subsection 6.1(2), and includes any requirements imposed under subsection 6.1(6) in relation to that Order and, unless otherwise indicated, any description or plan of the protected area that is published or filed under section 6.1 in relation to that Order.



2                           The Act is amended by adding before section 7 the following:



6.1(1)                              Notwithstanding the definition of "environment" in section 1, in this section



"environment" means



(a)               air, water or soil,



(b)               plant and animal life, including human life, and



(c)                the social, economic, cultural and aesthetic conditions that influence the life of humans or of a community insofar as they are related to the matters described in paragraph (a) or (b).



6.1(2)             For the purpose of protecting the environment of a wetland, the Minister or the Minister of Natural Resources and Energy, with the approval of the Lieutenant-Governor in Council, may by a Wetland Designation Order designate as a protected area all or any portion of a wetland.



6.1(3)             A protected area designated under subsection (2) may include any land or water adjacent to the wetland that the Minister or the Minister of Natural Resources and Energy, as the case may be, considers necessary for the protection of the environment of the wetland.



6.1(4)             A Wetland Designation Order shall include a commencement date.



6.1(5)             A Wetland Designation Order may define any word or expression used but not defined in this Act for the purposes of the Order.



6.1(6)             A Wetland Designation Order may impose requirements respecting one or more of the following:



(a)               the prohibition, control or limitation of any activity or thing that might impact the environment of a protected area;



(b)               the prohibition, control or limitation of the use of the land in a protected area;



(c)                the prohibition, control or limitation of the use of the water in a protected area;



(d)               terms and conditions respecting the use of the land or water in a protected area;



(e)                terms and conditions respecting the activities that may be carried out in a protected area;



(f)                      standards for the purpose of protecting the environment of a protected area and methods of enforcing those standards.



6.1(7)             A Wetland Designation Order shall include



(a)               a schedule of any requirements imposed under subsection (6), and



(b)               a description or plan of the protected area.



6.1(8)                              Notwithstanding the Regulations Act, any publication under that Act of a Wetland Designation Order that includes a plan of the protected area



(a)               shall include a notice describing the locations referred to in paragraphs (9)(a), (b) and (c) where a copy of the Order, including the plan, may be found, and



(b)               may include, instead of the plan of the protected area, a description of the protected area that contains sufficient detail for persons having an interest in property that may be affected by the Order to recognize that their property may be affected.



6.1(9)                              Before the commencement date of a Wetland Designation Order, the Minister or the Minister of Natural Resources and Energy, as the case may be, shall



(a)               file a copy of the Order in the head office of the Department of the Environment and Local Government and in the regional office of the Department of the Environment and Local Government located closest to the protected area,



(b)               file a copy of the Order in the head office of the Department of Natural Resources and Energy and in the regional office of the Department of Natural Resources and Energy located closest to the protected area,



(c)                file a copy of the Order in any other location designated by regulation, and



(d)                      publish a notice at least once in one or more newspapers published in the county or counties in which the protected area is located or, if no newspaper is published in that county or counties, in a newspaper published in the Province and having general circulation in that county or counties.



6.1(10)          A notice referred to in paragraph (9)(d) shall include a description or plan of the protected area and shall indicate that a schedule of any requirements imposed under subsection (6) may be inspected at



(a)               the head office of the Department of the Environment and Local Government and at the regional office of the Department of the Environment and Local Government specified in the notice,



(b)               the head office of the Department of Natural Resources and Energy and at the regional office of the Department of Natural Resources and Energy specified in the notice, and



(c)                any other location at which the Order has been filed under paragraph (9)(c).



6.1(11)          The Minister shall maintain a general register of Wetland Designation Orders at the head office of the Department of the Environment and Local Government and shall maintain a regional register of Wetland Designation Orders at each regional office referred to in notices published under paragraph (9)(d), and the general and regional registers shall be open for inspection during normal business hours.



6.1(12)          The Minister of Natural Resources and Energy shall maintain a general register of Wetland Designation Orders at the head office of the Department of Natural Resources and Energy and shall maintain a regional register of Wetland Designation Orders at each regional office referred to in notices published under paragraph (9)(d), and the general and regional registers shall be open for inspection during normal business hours.



6.1(13)          A person who, on the commencement date of a Wetland Designation Order, owns or is proposing, developing, constructing, operating or maintaining an activity, thing or use that is prohibited, controlled, limited or otherwise affected by any requirements imposed under subsection (6) shall begin complying with those requirements on the commencement date of the Order and shall continue to comply with all requirements except those from which the person has been granted an exemption.



6.1(14)          A person who, after the commencement date of a Wetland Designation Order, acquires, proposes or commences to develop, construct, operate or maintain an activity, thing or use that is prohibited, controlled, limited or otherwise affected by any requirements imposed under subsection (6) shall comply with all the requirements except those from which the person has been granted an exemption.



6.2(1)             A person who owns, acquires or is proposing, developing, constructing, operating or maintaining an activity, thing or use that is prohibited, controlled, limited or otherwise affected by any requirements imposed under subsection 6.1(6) may, at any time after the Wetland Designation Order is made, ask the Minister who made the Order to grant an exemption by delivering to that Minister a request for an exemption on a form prescribed by regulation and any other information or documents that that Minister considers necessary to consider the request.



6.2(2)             Upon receipt of a request under subsection (1), that Minister may,



(a)               on a form prescribed by regulation, grant an exemption in accordance with the regulations, permitting the development, construction, operation or maintenance of all or part of an activity, thing or use that is prohibited, controlled or limited by a requirement imposed in relation to a Wetland Designation Order, during a specified or an indefinite period of time as is set out in the exemption, subject to such requirements as that Minister may impose,



(b)                      acquire all or a portion of the land where the activity, thing or use is being developed, constructed, operated or maintained, or



(c)                on a form prescribed by regulation, refuse the request and provide reasons for the refusal.



6.2(3)             The Minister or the Minister of Natural Resources and Energy, as the case may be, shall not grant an exemption under subsection (2) unless, in accordance with New Brunswick Regulation 87-83 under the Clean Environment Act,



(a)               the Minister has made a determination under paragraph 4(a) of that regulation, or



(b)               the Lieutenant-Governor in Council has given an approval under subsection 16(2) of that regulation.



6.2(4)             An exemption shall specify the name of the person or persons or the class of persons to whom all or any specified portion of the exemption applies, and the exemption or portion of it, as the case may be, shall apply



(a)                      unless otherwise specified, to the heirs, assigns, successors, executors and administrators of those persons, and



(b)                      where specified, to the employees and agents of those persons.



6.2(5)             An exemption shall set out the Service New Brunswick parcel identifier number or numbers of the land to which it relates and any requirements imposed in relation to the exemption and shall include a description or plan of the land.



6.2(6)             The Regulations Act does not apply to an exemption.



6.2(7)                              Subsection 6.1(9) does not apply to an exemption.



6.2(8)             A person who is granted an exemption shall comply with any requirements that are imposed in relation to the exemption.



6.2(9)             An exemption granted under paragraph (2)(a) shall be deemed to be a permit under paragraph 15(1)(b) of the Clean Water Act and the recipient of such an exemption is not required to apply under the Clean Water Act for a permit under paragraph 15(1)(b) of that Act.



6.3(1)             Land or water shall be deemed not to be injuriously affected by reason only that



(a)               all or any portion of it is designated or is adjacent to land or water that is designated as a protected area under section 6.1, or



(b)               any requirements have been imposed under section 6.1 in relation to all or any portion of it or to land or water adjacent to all or any portion of it,



and no compensation shall be paid to the owner of land or to any person having any interest in land or water by reason only that it or any portion of it is, or is adjacent to, land or water that is designated as a protected area or in relation to which a requirement under section 6.1 is imposed.



6.3(2)             If a conflict exists between this section and any other provision of this Act, this section prevails.



6.4(1)                              Notwithstanding the definition of "environment" in section 1, in this section



"environment" means



(a)               air, water or soil,



(b)               plant and animal life, including human life, and



(c)                the social, economic, cultural and aesthetic conditions that influence the life of humans or of a community insofar as they are related to the matters described in paragraph (a) or (b).



6.4(2)             For the purpose of protecting the environment of a coastal area, the Minister, with the approval of the Lieutenant-Governor in Council, may by a Coastal Designation Order designate as a protected area all or any portion of a coastal area.



6.4(3)             A protected area designated under subsection (2) may include any land or water adjacent to the coastal area that the Minister considers necessary for the protection of the environment of the coastal area.



6.4(4)             A Coastal Designation Order shall include a commencement date.



6.4(5)             A Coastal Designation Order may define any word or expression used but not defined in this Act for the purposes of the Order.



6.4(6)             A Coastal Designation Order may impose requirements respecting one or more of the following:



(a)               the prohibition, control or limitation of any activity or thing that might impact the environment of a protected area;



(b)               the prohibition, control or limitation of the use of the land in a protected area;



(c)                the prohibition, control or limitation of the use of the water in a protected area;



(d)               terms and conditions respecting the use of the land or water in a protected area;



(e)                terms and conditions respecting the activities that may be carried out in a protected area;



(f)                      standards for the purpose of protecting the environment of a protected area and methods of enforcing those standards.



6.4(7)             A Coastal Designation Order shall include



(a)               a schedule of any requirements imposed under subsection (6), and



(b)               a description or plan of the protected area.



6.4(8)                              Notwithstanding the Regulations Act, any publication under that Act of a Coastal Designation Order that includes a plan of the protected area



(a)               shall include a notice describing the locations referred to in paragraphs (9)(a) and (b) where a copy of the Order, including the plan, may be found, and



(b)               may include, instead of the plan of the protected area, a description of the protected area that contains sufficient detail for persons having an interest in property that may be affected by the Order to recognize that their property may be affected.



6.4(9)                              Before the commencement date of a Coastal Designation Order, the Minister shall



(a)               file a copy of the Order in the head office of the Department of the Environment and Local Government and in the regional office of the Department of the Environment and Local Government located closest to the protected area,



(b)               file a copy of the Order in any other location designated by regulation, and



(c)                      publish a notice at least once in one or more newspapers published in the county or counties in which the protected area is located or, if no newspaper is published in that county or counties, in a newspaper published in the Province and having general circulation in that county or counties.



6.4(10)          A notice referred to in paragraph (9)(c) shall include a description or plan of the protected area and shall indicate that a schedule of any requirements imposed under subsection (6) may be inspected at



(a)               the head office of the Department of the Environment and Local Government and at the regional office of the Department of the Environment and Local Government specified in the notice, and



(b)               any other location at which the Order has been filed under paragraph (9)(b).



6.4(11)          The Minister shall maintain a general register of Coastal Designation Orders at the head office of the Department of the Environment and Local Government and shall maintain a regional register of Coastal Designation Orders at each regional office referred to in notices published under paragraph (9)(c), and the general and regional registers shall be open for inspection during normal business hours.



6.4(12)          A person who, on the commencement date of a Coastal Designation Order, owns or is proposing, developing, constructing, operating or maintaining an activity, thing or use that is prohibited, controlled, limited or otherwise affected by any requirements imposed under subsection (6) shall begin complying with those requirements on the commencement date of the Order and shall continue to comply with all requirements except those from which the person has been granted an exemption.



6.4(13)          A person who, after the commencement date of a Coastal Designation Order, acquires, proposes or commences to develop, construct, operate or maintain an activity, thing or use that is prohibited, controlled, limited or otherwise affected by any requirements imposed under subsection (6) shall comply with all the requirements except those from which the person has been granted an exemption.



6.5(1)             A person who owns, acquires or is proposing, developing, constructing, operating or maintaining an activity, thing or use that is prohibited, controlled, limited or otherwise affected by any requirements imposed under subsection 6.4(6) may, at any time after the Coastal Designation Order is made, ask the Minister to grant an exemption by delivering to the Minister a request for an exemption on a form prescribed by regulation and any other information or documents that the Minister considers necessary to consider the request.



6.5(2)             Upon receipt of a request under subsection (1), the Minister may,



(a)               on a form prescribed by regulation, grant an exemption in accordance with the regulations, permitting the development, construction, operation or maintenance of all or part of an activity, thing or use that is prohibited, controlled or limited by a requirement imposed in relation to a Coastal Designation Order, during a specified or an indefinite period of time as is set out in the exemption, subject to such requirements as the Minister may impose,



(b)                      acquire all or a portion of the land where the activity, thing or use is being developed, constructed, operated or maintained, or



(c)                on a form prescribed by regulation, refuse the request and provide reasons for the refusal.



6.5(3)             The Minister shall not grant an exemption under subsection (2) that relates to a wetland in a coastal area unless, in accordance with New Brunswick Regulation 87-83 under the Clean Environment Act,



(a)               the Minister has made a determination under paragraph 4(a) of that regulation, or



(b)               the Lieutenant-Governor in Council has given an approval under subsection 16(2) of that regulation.



6.5(4)             An exemption shall specify the name of the person or persons or the class of persons to whom all or any specified portion of the exemption applies, and the exemption or portion of it, as the case may be, shall apply



(a)                      unless otherwise specified, to the heirs, assigns, successors, executors and administrators of those persons, and



(b)                      where specified, to the employees and agents of those persons.



6.5(5)             An exemption shall set out the Service New Brunswick parcel identifier number or numbers of the land to which it relates and any requirements imposed in relation to the exemption and shall include a description or plan of the land.



6.5(6)             The Regulations Act does not apply to an exemption.



6.5(7)                              Subsection 6.4(9) does not apply to an exemption.



6.5(8)             A person who is granted an exemption shall comply with any requirements that are imposed in relation to the exemption.



6.5(9)             An exemption granted under paragraph (2)(a) that relates to a watercourse or a wetland in a coastal area shall be deemed to be a permit under paragraph 15(1)(b) of the Clean Water Act and the recipient of such an exemption is not required to apply under the Clean Water Act for a permit under paragraph 15(1)(b) of that Act.



6.6(1)             Land or water shall be deemed not to be injuriously affected by reason only that



(a)               all or any portion of it is designated or is adjacent to land or water that is designated as a protected area under section 6.4, or



(b)               any requirements have been imposed under section 6.4 in relation to all or any portion of it or to land or water adjacent to all or any portion of it,



and no compensation shall be paid to the owner of land or to any person having any interest in land or water by reason only that it or any portion of it is, or is adjacent to, land or water that is designated as a protected area or in relation to which a requirement under section 6.4 is imposed.



6.6(2)             If a conflict exists between this section and any other provision of this Act, this section prevails.



6.7                              Subject to subsection 5.3(3), if the Minister is satisfied, on reasonable and probable grounds, that a person is required to comply and is failing or refusing to comply, in whole or in part, with a Wetland Designation Order or a Coastal Designation Order or with requirements imposed in relation to an exemption, the Minister may order the taking of such action as the Minister considers necessary to effect compliance with or to carry out the order or requirements, as the case may be.



3                              Section 14 of the Act is amended



(a)               by renumbering the section as subsection 14(1);



(b)               by adding after subsection 14(1) the following:



14(2)               Any person whose request for an exemption from a Wetland Designation Order or a Coastal Designation Order has been refused may appeal the refusal in the manner prescribed by regulation.



14(3)               For the purposes of an appeal under subsection (2) relating to an exemption granted by the Minister of Natural Resources and Energy, any references in New Brunswick Regulation 84-179 under the Clean Environment Act to



(a)                      Minister, notwithstanding the definition of "Minister" in section 1, means the Minister of Natural Resources and Energy, and



(b)                      Department of the Environment and Local Government, means the Department of Natural Resources and Energy.



4                              Subsection 31.1(1) of the Act is amended in the portion preceding paragraph (a) by striking out "In this section" and substituting "Notwithstanding the definition of "environment" in section 1, in this section".



5                              Section 32 of the Act is amended



(a)               by adding after paragraph (c) the following:



(c.1)                      respecting the granting of an exemption in relation to a Wetland Designation Order or a Coastal Designation Order;



(b)               by adding after paragraph (v.1) the following:



(v.2)                      prescribing any thing required by this Act to be prescribed;



Consequential Amendments

6                              Paragraph 1(b) of An Act to Amend the Clean Environment Act, chapter 25 of the Acts of New Brunswick, 2002, is amended by repealing the definition "order" and substituting the following:



"order" means an order issued under this Act or the regulations, but does not include a Coastal Designation Order, a Wetland Designation Order or an order issued under section 4.2;


 

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