The 'sleeping giant' of watershed protection.

• Author: Wenig, Michael M.
• Position: Environmental law

Some environmental laws lie dormant for years or even decades, but are then awoken by creative lawyers looking for new ways to solve their private clients' environmental problems or to promote the causes of environmental non-profits. This column is about one such dormant law that, if awoken, might add a new, controversial front in the campaign to conserve Alberta's watersheds.

The law is part of section 54 of the Alberta Public Lands Act. That section generally prohibits various activities on or that adversely affect the province's public lands. The Act further provides that it is an "offence" to violate these prohibitions (s. 56(c)), punishable (in an enforcement action brought either by the government or by private citizens) by a fine of up to $5,000 per day of violation (s. 59(2)). The Act also allows Alberta's public lands Minister to issue and enforce administrative orders to stop or remedy the effects of these violations (s. 59.1).

This basic regulatory scheme is common in public lands and forest management laws. But what makes Alberta's scheme so noteworthy is the scope of prohibited activities and harms listed in that section. The list specifically includes

* acts on public land that "may injuriously affect watershed capacity;"

* any "disturbance" of public land that may cause "injury" to the "bed or shore of any river, stream, watercourse, lake or other body of water or land in the vicinity of" the disturbed public land; and

* the "creation of any condition" on public land that is likely to cause "soil erosion" (s. 54(d), (e), and (f)).

The breadth of these three prohibitions is quite remarkable. Viewed collectively, they could apply, not only to activities that occur on public lands, but also to activities occurring outside of public lands that induce certain effects within public lands. And the first two prohibitions apply to a very wide range of water-related harms. The third prohibition does not refer specifically to water. But, because soil erosion can injure water bodies (for example, through sediment pollution and by causing loss of riparian, or riverbank, vegetation), this prohibition also has an obvious water-related purpose.

The first of the three prohibitions casts an especially broad net over watershed harms. There are close complex hydrological connections among surface waters, ground water, and wetlands, and between those water-bearing features and riparian and even upland areas. Because of these connections, it is...