Vol. 147, No. 23 — November 6, 2013

Registration

SOR/2013-186 October 24, 2013

CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 2012

Regulations Amending the Regulations Designating Physical Activities

The Minister of the Environment, pursuant to paragraphs 84(a) and (e) of the Canadian Environmental Assessment Act, 2012 (see footnote a), makes the annexed Regulations Amending the Regulations Designating Physical Activities.

Ottawa, October 24, 2013

LEONA AGLUKKAQ
Minister of the Environment

REGULATIONS AMENDING THE REGULATIONS DESIGNATING PHYSICAL ACTIVITIES

AMENDMENTS

1. (1) The definitions “abandonment”, “airport”, “Class IA nuclear facility”, “Class IB nuclear facility”, “decommissioning”, “paper product”, “pulp”, “pulp and paper mill”, “right of way”, “waste management system” and “wetland” in section 1 of the Regulations Designating Physical Activities (see footnote 1) are repealed.

(2) The definitions “marine terminal” and “water body” in section 1 of the Regulations are replaced by the following:

“marine terminal”
« terminal maritime »

“marine terminal” means

“water body”
« plan d’eau »

“water body” means any water body, including a canal, a reservoir, an ocean and a wetland as that term is defined in The Federal Policy on Wetland Conservation published in 1991 by the Department of the Environment, up to the high-water mark, but does not include a sewage or waste treatment lagoon or a mine tailings pond.

(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:

“area of mine operations”
« aire d’exploitation minière »

“area of mine operations” means the area at ground level occupied by any open pit or underground workings, mill complex or storage area for overburden, waste rock, tailings or ore.

“canal”
« canal »

“canal” means an artificial waterway constructed for navigation.

“drilling program”
« programme de forage »

“drilling program” has the same meaning as in subsection 1(1) of the Canada Oil and Gas Drilling and Production Regulations, SOR/2009-315.

“exploratory well”
« puits d’exploration »

“exploratory well” has the same meaning as in subsection 101(1) of the Canada Petroleum Resources Act, but does not include a delineation well or development well as those terms are defined in that subsection.

“flowline”
« conduite d’écoulement »

“flowline” has the same meaning as in subsection 2(1) of the Canada Oil and Gas Installations Regulations.

2. Section 4 of the Regulations is replaced by the following:

Activities – Agency

4. (1) The activities set out in items 1 to 30 of the schedule are linked to the Agency when they are not regulated under, or incidental to a physical activity that is regulated under, the Nuclear Safety and Control Act, the National Energy Board Act or the Canada Oil and Gas Operations Act.

Activities – Canadian Nuclear Safety Commission

(2) The activities set out in items 31 to 38 of the schedule are linked to the Canadian Nuclear Safety Commission when they are regulated under the Nuclear Safety and Control Act.

Activities – National Energy Board

(3) The activities set out in items 39 to 48 of the schedule are linked to the National Energy Board when they are regulated under the National Energy Board Act or the Canada Oil and Gas Operations Act.

3. The schedule to the Regulations is replaced by the schedule set out in the schedule to these Regulations.

TRANSITIONAL PROVISIONS

4. (1) The following definitions apply in this section.

“former Regulations”
« règlement antérieur »

“former Regulations” means the Regulations Designating Physical Activities as they read immediately before the day on which these Regulations come into force.

“former Act”
« ancienne loi »

“former Act” means the Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992.

“Act”
« Loi »

“Act” means the Canadian Environmental Assessment Act, 2012.

(2) The Regulations Designating Physical Activities, as amended by these Regulations, do not apply to a physical activity that was not designated under the former Regulations if, on the day on which these Regulations come into force, any of the following conditions apply:

COMING INTO FORCE

5. These Regulations come into force on the day on which they are registered.

SCHEDULE
(Section 3)

SCHEDULE
(Sections 2 to 4)

PHYSICAL ACTIVITIES
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY

1. The construction, operation, decommissioning and abandonment, in a wildlife area or migratory bird sanctuary, of a new

2. The construction, operation, decommissioning and abandonment of

3. The expansion of

4. The construction, operation, decommissioning and abandonment of a new dam or dyke that would result in the creation of a reservoir with a surface area that would exceed the annual mean surface area of a natural water body by 1 500 ha or more.

5. The expansion of an existing dam or dyke that would result in an increase in the surface area of the existing reservoir of 50% or more and an increase of 1 500 ha or more in the annual mean surface area of the existing reservoir.

6. The construction, operation, decommissioning and abandonment of a new structure for the diversion of 10 000 000 m3/year or more of water from a natural water body into another natural water body.

7. The expansion of an existing structure for the diversion of water from a natural water body into another natural water body that would result in an increase in diversion capacity of 50% or more and a total diversion capacity of 10 000 000 m3/year or more.

8. The construction, operation, decommissioning and abandonment of a new oil sands mine with a bitumen production capacity of 10 000 m3/day or more.

9. The expansion of an existing oil sands mine that would result in an increase in the area of mine operations of 50% or more and a total bitumen production capacity of 10 000 m3/day or more.

10. The drilling, testing and abandonment of offshore exploratory wells in the first drilling program in an area set out in one or more exploration licences issued in accordance with the Canada-Newfoundland Atlantic Accord Implementation Act or the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act.

11. The construction, installation and operation of a new offshore floating or fixed platform, vessel or artificial island used for the production of oil or gas.

12. The decommissioning and abandonment of an existing offshore floating or fixed platform, vessel or artificial island used for the production of oil or gas that is proposed to be disposed of or abandoned offshore or converted on site to another role.

13. The construction, operation, decommissioning and abandonment of a new offshore oil and gas pipeline, other than a flowline.

14. The construction, operation, decommissioning and abandonment of a new

15. The expansion of an existing

16. The construction, operation, decommissioning and abandonment of a new

17. The expansion of an existing

18. The construction and operation of a new military base or military station that is to be established for more than 12 consecutive months.

19. The construction, operation, decommissioning and abandonment outside an existing military base of a new military training area, range or test establishment for training or weapons testing that is to be established for more than 12 consecutive months.

20. The expansion of an existing military base or military station that would result in an increase in the area of the military base or military station of 50% or more.

21. The decommissioning and abandonment of an existing military base or military station.

22. The testing of military weapons for more than five days in a calendar year in an area other than the training areas, ranges and test establishments established before October 7, 1994 by or under the authority of the Minister of National Defence for the testing of weapons.

23. The low-level flying of military fixed-wing jet aircraft for more than 150 days in a calendar year as part of a training program at an altitude below 330 m above ground level on a route or in an area that was not established before October 7, 1994 by or under the authority of the Minister of National Defence or the Chief of the Defence Staff as a route or area set aside for low-level flying training.

24. The construction, operation, decommissioning and abandonment of a new

25. The construction, operation, decommissioning and abandonment of a new

26. The construction, operation, decommissioning and abandonment of a new

27. The extension of an existing all-season runway by 1 500 m or more.

28. The construction, operation, decommissioning and abandonment of a new

29. The construction, operation, decommissioning and abandonment of a new facility used exclusively for the treatment, incineration, disposal or recycling of hazardous waste.

30. The expansion of an existing facility used exclusively for the treatment, incineration, disposal or recycling of hazardous waste that would result in an increase in hazardous waste input capacity of 50% or more.

CANADIAN NUCLEAR SAFETY COMMISSION

31. The construction, operation and decommissioning of a new uranium mine or uranium mill on a site that is not within the licensed boundaries of an existing uranium mine or uranium mill.

32. The expansion of an existing uranium mine or uranium mill that would result in an increase in the area of mine operations of 50% or more.

33. The construction, operation and decommissioning of a new

34. The expansion of an existing

35. The construction, operation and decommissioning of a new nuclear fission or fusion reactor.

36. The expansion of an existing nuclear fission or fusion reactor that would result in an increase in power output of 50% or more.

37. The construction and operation of a new

38. The expansion of an existing facility for the long-term management or disposal of irradiated fuel or nuclear waste that would result in an increase in the area, at ground level, of the facility of 50% or more.

NATIONAL ENERGY BOARD

39. The construction, operation, decommissioning and abandonment of a new electrical transmission line with a voltage of 345 kV or more that requires a total of 75 km or more of new right of way.

40. The drilling, testing and abandonment of offshore exploratory wells in the first drilling program in an area set out in one or more exploration licences issued in accordance with the Canada Petroleum Resources Act.

41. The construction, installation and operation of a new offshore floating or fixed platform, vessel or artificial island used for the production of oil or gas.

42. The decommissioning and abandonment of an existing offshore floating or fixed platform, vessel or artificial island used for the production of oil or gas that is proposed to be disposed of or abandoned offshore or converted on site to another role.

43. The construction, operation, decommissioning and abandonment of a new offshore pipeline, other than a flowline.

44. The construction, operation, decommissioning and abandonment of a new

45. The expansion of an existing

46. The construction and operation of a new pipeline, other than an offshore pipeline, with a length of 40 km or more.

47. The decommissioning and abandonment of an existing pipeline, other than an offshore pipeline, if at least 40 km of pipe is removed from the ground.

48. The construction, operation, decommissioning and abandonment, in a wildlife area or migratory bird sanctuary, of

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Background

The Canadian Environmental Assessment Act, 2012 (CEAA 2012) came into force in July 2012 as part of the Government of Canada’s Responsible Resource Development plan, the objectives of which are to achieve more predictable and timely project reviews, reduce duplication, strengthen environmental protection, and enhance consultation with Aboriginal groups.

The CEAA 2012 and its accompanying regulations provide the legislative framework for federal environmental assessment. Environmental assessments consider whether “designated projects” are likely to cause significant adverse environmental effects that fall within the legislative authority of Parliament or result from a federal decision about the project. Assessments are conducted by one of three responsible authorities: the Canadian Environmental Assessment Agency (the Agency), the Canadian Nuclear Safety Commission (CNSC) for projects that it regulates or the National Energy Board (NEB) for projects that it regulates. The CEAA 2012 requires that opportunities for public participation be provided during environmental assessments and that participant funding and a public registry, including an Internet site, be established.

Recognizing that responsibility for the environment is shared with other jurisdictions, cooperation with those jurisdictions is enabled under the CEAA 2012 through various mechanisms. These include carrying out cooperative assessments, establishing joint review panels, delegating the conduct of all or part of the federal environmental assessment, substituting the process of another jurisdiction for the federal process, and recognizing a provincial process as equivalent to the federal process for a specific project.

Environmental assessments under the CEAA 2012 are conducted of proposed projects that are “designated,” either through regulation or by the Minister of the Environment. The Regulations Designating Physical Activities (the Regulations) prescribe the physical activities that constitute a “designated project” which may require an environmental assessment under the CEAA 2012. The physical activities are listed in a schedule to the Regulations, which is divided into three parts according to which federal authority — the Agency, the CNSC or the NEB — would be responsible for conducting an environmental assessment of a designated project that included that activity.

The schedule sets out the physical activities associated with the carrying out of projects (such as construction of a metal mine or of a hydroelectric generation facility). Each item in the schedule includes a description and in most cases a corresponding threshold (often production capacity), which serves as a representation of scale or size (such as a metal mine with an ore production capacity of 3 000 tonnes/day or more, or a hydroelectric generation facility with a production capacity of 200 megawatts or more) and thus represents the potential for significant adverse environmental effects. Project proposals that contain physical activities that are listed in the Regulations and that meet or exceed the threshold are designated projects.

The Regulations are intended to identify those physical activities with the greatest potential to cause significant adverse environmental effects in areas of federal jurisdiction. However, there may be occasional situations where a proposed physical activity that makes up a project does not match the categories listed or does not meet the threshold prescribed, but by virtue of its unique characteristics or its location may cause adverse environmental effects in areas of federal jurisdiction. In such cases, the CEAA 2012 provides the authority for the Minister of the Environment to designate the physical activity to be a designated project for the purposes of requiring an environmental assessment. This provision could also be used where the Minister is of the opinion that public concerns about those adverse environmental effects warrant the designation. This mechanism within the CEAA 2012 recognizes that project-specific circumstances may sometimes mean there is a greater risk of significant adverse environmental effects than is typical for projects of that type.

Designated projects that are regulated by the CNSC or by the NEB and projects that the Minister has designated must undergo an environmental assessment. However, when the Agency is the responsible authority for a designated project, it must determine whether or not an environmental assessment is required based on the specific project proposal.

In determining whether to require an environmental assessment of a designated project, the Agency considers a number of factors, including the description of the project provided by the proponent, the possibility that the carrying out of the project may cause adverse environmental effects, comments received from the public and, if applicable, the results of any relevant regional study. Under the CEAA 2012, the “environmental effects” of concern are those in areas of federal jurisdiction, which are defined as

Issue

The physical activities identified in the former Regulations did not appropriately reflect the major projects that have the greatest potential to cause significant adverse environmental effects in areas of federal jurisdiction. Some types of major projects that are considered to have a high potential for such effects were not covered by the Regulations. Conversely, some projects that were covered by the Regulations are considered to have a low potential for significant adverse environmental effects in areas of federal jurisdiction.

Objectives

The Regulations Amending the Regulations Designating Physical Activities have been made to ensure the Regulations appropriately reflect those major projects that have the greatest potential for significant adverse environmental effects in areas of federal jurisdiction. This will, in turn, ensure federal environmental assessment is focused on those projects and increase certainty and predictability for proponents and for Canadians. A second objective is to improve the clarity of the Regulations and their internal consistency.

Description

The physical activities listed in the schedule to the Regulations include a description and in most cases a “threshold” to ensure that only projects of at least a certain size are designated. The Regulations also include definitions to clarify key terms.

The approach of using thresholds is required to ensure the focus is on major projects. Thresholds related to the size of a facility, such as its production capacity, serve as an indicator of the scale of a project and its potential to cause significant adverse environmental effects. The use of thresholds, as opposed to trying to delineate the many diverse factors that may influence the potential for adverse effects, constitutes an approach that can be applied across different project types and throughout the country. Furthermore, it provides clear, predictable information about the application of the CEAA 2012 to a project. In this way, proponents know when they are required to submit a project description. Stakeholders also benefit in that they will know when a project description must be submitted to the Agency or, in the case of projects regulated by the NEB or CNSC, when an environmental assessment is required. Where a project does not include an activity that is designated in the Regulations and stakeholders are of the view that the project may cause adverse environmental effects in areas of federal jurisdiction, they can inform the Minister of the Environment, who can respond accordingly.

Schedule to the Regulations

The schedule to the Regulations has been replaced to include modifications as follows.

  1. Entries that refer to the “construction, operation, decommissioning and abandonment,” the “construction, operation and decommissioning,” the “construction and operation,” or the “construction, installation and operation” of a facility have been modified to clarify that they refer to a new facility. Items that refer to the “expansion,” “extension,” “decommissioning” or “decommissioning and abandonment” of a facility have been modified to clarify that they refer to an existing facility.
  2. Additions have been made to cover the following types of projects: diamond mines, apatite mines, railway yards, international and interprovincial bridges and tunnels, bridges that cross the St. Lawrence Seaway, offshore exploratory wells in the first drilling program within exploration licence areas, and expansions to oil sands mines.
  3. Deletions have been made to exclude the following types of projects: groundwater extraction facilities, heavy oil and oil sands processing facilities, pipelines (other than offshore pipelines) and electrical transmission lines that are not regulated by the NEB, potash mines and other industrial mineral mines (salt, graphite, gypsum, magnesite, limestone, clay, asbestos), and industrial facilities (pulp mills, pulp and paper mills, steel mills, metal smelters, leather tanneries, textile mills and facilities for the manufacture of chemicals, pharmaceuticals, pressure-treated wood, particleboard, plywood, chemical explosives, lead-acid batteries and respirable mineral fibres).
  4. The entry for tidal power generating facilities has been amended to include a threshold of 50 megawatts for in-stream facilities. The current threshold of 5 megawatts has been retained for other types of tidal power generating facilities, such as tidal barrage facilities.
  5. The entry for liquefied natural gas storage facilities has been modified to increase the threshold size by approximately 10%.
  6. Rare earth element mines, which were covered by the general entry for metal mines, have been included in the same entry as gold mines, which have a lower ore production capacity threshold of 600 tonnes per day.
  7. The separate entry for offshore metal mines has been deleted. This type of project is instead covered by the general entry for metal mines.
  8. The entries for mine expansions have been modified to relate the size of the expansion to an increase in the area of disturbance rather than referring only to production capacity.
  9. The entry for stone quarries and sand and gravel pits has been modified to increase the threshold size from 1 million tonnes per year to 3.5 million tonnes per year.
  10. The entries for expansions, with the exception of dams and dykes, have been adjusted to use a consistent approach that specifies an increase of 50% or more in size and that the resulting facility must meet or exceed the threshold size for a new facility of that type.
  11. The entry covering the expansion of dams and dykes has been modified to relate the resulting increase in the size of the associated reservoir to the size of the existing reservoir (i.e. the reservoir must increase by 50% or more and at least 1 500 ha).
  12. The entry covering the expansion of facilities for the treatment, incineration, disposal or recycling of hazardous waste has been modified to relate the expansion size to the hazardous waste input capacity of the facility rather than the production capacity.
  13. The entries related to offshore oil or gas production facilities have been modified to improve clarity by precisely identifying the types of facilities that are covered.
  14. The entries for offshore pipelines have been modified to clarify that flowlines are not included.
  15. The entries related to National Defence activities have been modified to remove expansions of existing buildings on a military base or station, to increase the threshold requirement for expansions of a military base or station, and to specify that the Regulations do not apply to activities of a temporary nature.
  16. The entries for CNSC-regulated activities have been updated to reflect the CNSC’s current licensing practices, to include the construction of all reactor types, and to provide clarification of terms.
  17. The entry for NEB-regulated pipelines (other than offshore pipelines) has been modified to align with the NEB’s regulatory process requirements under its legislation, by reducing the threshold from 75 km on a new right-of-way to 40 km of new pipe whether or not it is on a new right-of-way.
Definitions

The list of definitions has been modified as follows:

  1. Addition of the following terms: area of mine operations, canal, drilling program, exploratory well, flowline.
  2. Deletion of the following terms: abandonment, airport, Class IA nuclear facility, Class IB nuclear facility, decommissioning, paper product, pulp, pulp and paper mill, right of way, waste management system, wetland.
  3. Revision of the following definitions: marine terminal, water body.

In addition, modifications have been made to improve the clarity and consistency of the wording throughout the Regulations.

The amendments include transitional provisions to cover situations that may arise related to projects that were not “designated projects” under the former Regulations, but which become “designated projects” as a result of the amendments. In this case, the new Regulations apply except if permits have already been issued by a federal authority, the carrying out of the project has already started, or an assessment under the process of another jurisdiction, or under the CNSC or NEB regulatory processes, is already underway. An assessment by another jurisdiction is one conducted by a provincial government, agency or body; a body established under a land claims agreement; or a body established under legislation related to Aboriginal self-government. In addition, the transitional provisions provide that the new Regulations do not apply in respect of any project that was subject to a “screening” type environmental assessment under the former Act which, as a result of the coming into force of CEAA 2012, was not required to be continued and completed.

Regulatory and non-regulatory options considered

Retaining the status quo was not a preferred option since some types of major projects that are considered to have a greater potential for significant adverse environmental effects in areas of federal interest were not covered in the former Regulations; conversely, some items in the former Regulations were associated with projects that are considered to have a low potential for significant adverse effects regarding matters of federal jurisdiction.

In developing the amendments, consideration was given to a number of factors, such as the flexibility afforded under the CEAA 2012 for the Agency to screen out projects, the administrative burden associated with screening, the authority of the Minister to require that an environmental assessment be conducted of a project that is not described in the Regulations and certainty for the public and proponents about when an assessment will be done.

The aim was to reach a balance between, on the one hand, ensuring that proponents of projects with low or limited potential to adversely impact areas of federal jurisdiction are not unduly burdened with preparing project descriptions and that Agency resources are not unnecessarily used to consider and screen an overly broad pool of projects and, on the other hand, ensuring that the Minister’s discretion to designate projects can be used in project-specific circumstances and not as a second standard means to require an environmental assessment of a project.

The approach that was taken achieves this balance. Where the Minister is considering designation of a project owing to its unique characteristics, the proponent will be required to provide the necessary information. This targeted approach will help minimize the regulatory burden compared to requiring a formal project description for all projects of that type. At the same time, the public and proponents of projects described in the Regulations will have a greater degree of certainty that an environmental assessment will be required because screening out by the Agency will be less likely.

Other approaches that relied too heavily on the Agency’s discretionary authority to screen out projects or that relied too heavily on the Minister’s discretionary authority to designate projects were rejected.

Regulations identifying the physical activities that comprise a “designated project” are essential to the functioning of the CEAA 2012. Consequently, non-regulatory options were not considered.

The amendments support the Government’s Responsible Resource Development plan by ensuring the Regulations focus on those major projects with the greatest potential for significant adverse environmental effects on areas of federal jurisdiction.

“One-for-One” Rule

The “One-for-One” Rule does not apply since there is no change in administrative burden to business.

The Regulatory Impact Analysis Statement for the former Regulations, published in the Canada Gazette, Part II, on July 18, 2012, indicated that the Regulations triggered the “One-for-One” Rule. Subsequently, the Agency determined, in consultation with the Treasury Board of Canada Secretariat, that although the Regulations may have associated compliance costs they do not impose new administrative burden costs on business.

Any administrative burden that may be associated with the submission of a project description under the CEAA 2012 is related to the Prescribed Information for the Description of a Designated Project Regulations.

Small business lens

The small business lens does not apply to this proposal.

Consultation

1. Prior to the publication of the proposed Regulations Amending the Regulations Designating Physical Activities in the Canada Gazette, Part I

Following the coming into force of the CEAA 2012 on July 6, 2012, the Agency met with provinces and territories, industry groups, national Aboriginal organizations and environmental groups in relation to the new legislation and invited views on whether amendments to the Regulations should be made. By August 31, 2012, the Agency had received 45 individual submissions from stakeholder groups, as well as form letters from the public identifying issues of concern. The Agency did not receive any submissions from the national Aboriginal organizations.

Concerns were raised about the appropriate range of physical activities to include in the Regulations. Several industry associations were concerned about the inclusion of activities that had not required an environmental assessment under the former Canadian Environmental Assessment Act, which, in their view, indicated that these activities result in little or no impact on matters of federal jurisdiction. Some provinces indicated that the Regulations should only include activities where there is a clear federal interest, specifically transboundary projects, interprovincial and international projects, projects on federal land, projects with federal funding and projects of national significance (e.g. related to national security). On the other hand, environmental groups indicated that a broad and inclusive approach should be adopted to ensure all projects that may cause significant environmental effects, including cumulative effects, are at least subject to the screening process under the CEAA 2012 to determine if an environmental assessment is warranted.

In relation to the list of physical activities set out in the schedule to the Regulations, the main issues raised were

Some comments from environmental groups also spoke to adding all mines (i.e. without reference to a threshold), aquaculture projects, transportation of radioactive waste, oil and gas hydraulic fracturing, and large-scale forestry operations, as well as to ensuring the inclusion of underwater power cables. Additional issues raised by some provinces included the appropriate treatment of fossil fuel-fired electrical generating facilities and potash mines.

Over 200 form letters were submitted by members of the public, environmental groups and Aboriginal groups expressing support for the addition of offshore oil and gas exploration projects and seismic testing.

In addition, the Agency received over 1 800 form letters from members of the public in support of adding an entry for the shipment of radioactive waste. The shipping of radioactive waste is subject to extensive review under the federal regulatory framework, including the Nuclear Safety and Control Act (NSCA). The regulatory process under the NSCA includes protection of human health and the environment, and provides opportunities for public participation and participant funding. All major projects that are regulated by the CNSC are covered in the amendments to the Regulations.

Concerns were also raised about the use of thresholds to capture only larger projects and how those thresholds are designed. Environmental groups expressed concern about situations of project splitting: proponents designing projects to be just under the threshold and using incremental expansions to avoid the requirement for an environmental assessment. They were also concerned about using thresholds related to the size of a project (e.g. production capacity) since, in their view, small-scale projects can have significant impacts if located in a sensitive area.

A number of stakeholders also expressed concern about the “life cycle” wording used in the Regulations (i.e. the “construction, operation, decommissioning and abandonment” of a facility) indicating that, in their view, the intent of this wording should be clarified.

2. Comments on the proposed Regulations Amending the Regulations Designating Physical Activities

The proposed Regulations Amending the Regulations Designating Physical Activities and the related Regulatory Impact Analysis Statement were publicly released on the Agency’s Web site on April 12, 2013, and subsequently published in the Canada Gazette, Part I, on April 20 for a 30-day public comment period. The public comment period closed on May 20, 2013. The Agency received 51 submissions from interested stakeholders, Aboriginal groups, and members of the public.

In general, members of the public, environmental groups and Aboriginal groups expressed concern about the removal of any project type from the Regulations. They suggested that all entries be retained and that a number of other project types be added (e.g. aquaculture, offshore wind farms, oil sands projects, projects on federally protected lands). In addition, concerns were raised with proposed increases in the thresholds and with the use of thresholds in general, with some suggesting that all projects of certain types (e.g. mines) be included. Aboriginal groups raised concerns about the impacts on consultation if fewer environmental assessments are conducted. Various groups noted concern with the lack of detailed rationale in the Regulatory Impact Analysis Statement to support the proposed changes, and there were comments about the Government’s overall direction with respect to environmental policy and legislative changes.

Industry indicated support for the proposed removals (e.g. industrial minerals, intra-provincial pipelines and electrical transmission lines). Some industry associations indicated that the proposed changes addressed their concerns. There were some further requests for removal of entries, in particular stone quarries and sand and gravel pits. With respect to tidal power projects, there was general support for the proposal to treat in-stream projects separately from other types of tidal power technologies; however, there were differing views regarding the appropriate threshold to use. Industry also expressed concern about fossil fuel-fired electrical generating facilities, indicating that a distinction should be made between the types of fossil fuels used, with a higher threshold for fuels such as natural gas compared to that for oil or coal.

In general, provinces were supportive of the proposed changes, though Ontario raised concerns about the removal of some types of projects, such as industrial facilities, and the potential for regulatory gaps where no federal environmental assessment will be required in that province (given that the provincial environmental assessment legislation does not generally apply to private sector proposals). Nova Scotia indicated support for the proposed change to the entry for tidal power projects, while Saskatchewan supported the removal of potash mines. Alberta and Ontario raised concern with the retention of the entry for sand and gravel quarries, while Ontario and Saskatchewan raised concern about the retention of all-season public highways.

Changes as a result of consultation

The Agency received comments from industry associations and companies regarding the continued inclusion of the entry related to stone quarries and sand and gravel pits. They expressed concern that many projects would be subject to CEAA 2012 that would not have been subject to an environmental assessment under the former Act, and pointed to the differences between these types of projects and other types of mines. Environmental groups supported the continued inclusion of this item, indicating that these types of projects use large land areas and can have hydrological and hydrogeological impacts, and thus have an impact on areas of federal jurisdiction. The entry for this type of project has been retained; however, the threshold has been increased from a production capacity of 1 million tonnes per year to 3.5 million tonnes per year. Unlike some other types of mines, these projects do not generate the waste rock or tailings that are often linked to potential adverse environmental effects in areas of federal jurisdiction, making a higher threshold appropriate.

The entries in the Regulations related to offshore oil and gas development projects (offshore exploratory drilling, offshore production facilities, and offshore pipelines) as well as the definition of “offshore,” received many comments, primarily from industry but also from provinces, the two Atlantic offshore boards (joint federal and provincial organizations), and an Aboriginal group. Comments noted that these entries were not clearly worded, which could result in confusion over which projects were subject to CEAA 2012, inconsistent application, and the inclusion of projects that have low potential for adverse environmental effects. In addition, comments indicated that the definition of “offshore” should be retained.

Modifications to the offshore oil and gas items were made to clarify what activities are and are not covered. The entries for offshore exploratory drilling were modified to clarify that they apply to those exploratory wells that are part of the first drilling program proposed in one or more exploration licence areas. The entries for offshore oil or gas production facilities were revised to clearly specify which types of facilities are covered (i.e. an offshore floating or fixed platform, vessel or artificial island that is used for the production of oil or gas). Clarification for the offshore pipeline entries was achieved by specifying that these entries do not include “flowlines,” to ensure that they only cover major projects. The definition of “offshore” has been retained to ensure it is clear that “offshore” applies only to those areas in which activities are regulated under the Canada Oil and Gas Operations Act, the Canada-Newfoundland Atlantic Accord Implementation Act or the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act.

In response to comments from industry, the entry for railway yards was modified to refer to “yard tracks” rather than “sidings” to better reflect the terminology used in that sector. A comment was received from the nuclear industry indicating that the terminology in the entry related to facilities for the storage of nuclear waste should be the same as is used in the regulations that govern those facilities. As a result, the term “licensed boundaries” was replaced with “licensed perimeter.” This modification does not change the scope of application of the item.

The transitional provision providing that the amended Regulations do not apply if an assessment of the project under another process is already underway was also modified to clarify its application. The provision applies when an assessment of the environmental effects has already been commenced or completed by a provincial government or body, a body established under a land claims agreements or legislation that relates to the self-government for Aboriginal peoples, the CNSC or the NEB. The provision does not apply to the processes of other federal authorities.

All the comments were taken into consideration in developing the revised schedule to focus on major projects that involve physical activities that have the greatest potential to result in significant adverse environmental effects in areas of federal jurisdiction. The rationale for the amendments to the Regulations is outlined in the following section.

Rationale

The main purpose of the amendments is to ensure the Regulations are aligned with the objectives of the CEAA 2012 in support of the Government’s plan for Responsible Resource Development. Accordingly, the amendments to the Regulations ensure federal environmental assessment requirements are focussed on those major projects that have the greatest potential for significant adverse environmental effects in areas of federal jurisdiction. Physical activities that typically have minimal impacts on areas of federal jurisdiction have been removed.

The Regulations must be designed in consideration of the structure of the CEAA 2012. A key element of the CEAA 2012 is the Minister’s authority to designate a project that includes physical activities not in the Regulations. This provision recognizes that there may be occasional situations where the specific instance of a physical activity has a unique impact on the environment. If the physical activity is expected to have the potential for significant adverse environmental effects on areas of federal jurisdiction in most situations, then the physical activity is included in the Regulations. However, if the physical activity is not expected to have the potential for significant adverse environmental effects, except in limited circumstances, then it has not been included. The Minister’s authority to designate can be used, if warranted, in such circumstances. This approach allows the Government to protect the environment in those areas where attention is warranted. Should the Minister be designating physical activities associated with certain types of projects on a regular basis, the Minister can consider amendments to the Regulations in the future to include those activities.

In addition, the amendments ensure the Regulations are as clear and consistent as possible with respect to the descriptions of physical activities, the treatment of expansions, the application to the project life cycle and key terms.

In the first year that the CEAA 2012 was in force, 29 environmental assessments were commenced. It is not possible to predict with certainty the number of projects that will be subject to the CEAA 2012 in the future since project volumes are driven by economic conditions and other considerations that inform proponent decisions. However, taken together, the amendments are not expected to significantly affect the total number of projects that are subject to the CEAA 2012 annually. The impact of the amendments will be to shift the potential requirement for a federal environmental assessment from the proponents of those project types with physical activities that have been removed from the Regulations and on to the proponents of those projects with physical activities which have been added.

Implementation, enforcement and service standards

Under the CEAA 2012, unless either the Agency has determined that an environmental assessment is not required or a decision statement has been issued and the proponent is acting in accordance with the conditions of that decision statement, the proponent is prohibited from carrying out any part of a designated project that will result in

In addition, a federal authority is prohibited from issuing a permit or authorization for a designated project that requires an environmental assessment under the CEAA 2012 unless a decision statement has been issued for the project. The decision statement issued at the end of the environmental assessment includes enforceable conditions with which a proponent must comply. The CEAA 2012 includes enforcement provisions designed to ensure compliance with the requirements of the legislation.

At the time of the coming into force of the amendments, if a project description had been submitted or if an environmental assessment had commenced under the CEAA 2012 of a project involving a physical activity removed from the Regulations (and none that has been retained or added), the screening process or the environmental assessment was terminated because the project was no longer a “designated project.” Other federal permitting and approvals processes continue to apply. If the project is located on federal lands, CEAA 2012 requires that before federal authorities make any decision that would allow the project to proceed, they must determine whether it is likely to cause significant adverse environmental effects.

For the reverse situation (cases where a project was not a “designated project” under the former Regulations but is a “designated project” as a result of the amendments), the new Regulations apply except if permits have already been issued by a federal authority, the carrying out of the project has already started, or an assessment under the process of another jurisdiction, or under the CNSC or NEB regulatory processes, is already underway. An assessment by another jurisdiction, in this case, is limited to one conducted by a provincial government, agency or body; a body established under a land claims agreement; or a body established under legislation related to Aboriginal self-government. This approach will prevent delays and duplication for projects that had been proceeding in good faith under the former Regulations. In addition, the transitional provisions provide that the new Regulations do not apply in respect of any project that was subject to a “screening” type environmental assessment under the former Act which, as a result of the coming into force of CEAA 2012, was not required to be continued and completed.

The Minister of the Environment can designate persons to enforce and verify compliance with the CEAA 2012. If a designated person believes that there is a contravention of the CEAA 2012, they may order the contravener to stop doing anything that is in non-compliance with the CEAA 2012 and to take measures that are necessary to comply with the Act or to mitigate the effects of non-compliance.

The Agency will promote and monitor compliance with the CEAA 2012 and its regulations. The responsible authorities will verify compliance with conditions in the decision statements of designated projects for which they are the responsible authority.

The Regulations will be reviewed periodically, in accordance with the Cabinet Directive on Regulatory Management, to ensure they remain consistent with government priorities.

Contact

John McCauley, CMA
Director
Legislative and Regulatory Affairs
Canadian Environmental Assessment Agency
160 Elgin Street, 22nd Floor
Ottawa, Ontario
K1A 0H3
Telephone: 613-948-1785
Fax: 613-957-0897
Email: Regulations@ceaa-acee.gc.ca