Vol. 145, No. 14 — July 6, 2011
SOR/2011-139 June 23, 2011
CANADIAN ENVIRONMENTAL ASSESSMENT ACT
ARCHIVED — Establishing Timelines for Comprehensive Studies Regulations
P.C. 2011-741 June 23, 2011
His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to paragraph 59(a) (see footnote a) of the Canadian Environmental Assessment Act (see footnote b), hereby makes the annexed Establishing Timelines for Comprehensive Studies Regulations.
ESTABLISHING TIMELINES FOR COMPREHENSIVE STUDIES REGULATIONS
1. The following definitions apply in these Regulations.
“Act” means the Canadian Environmental Assessment Act. (Loi)
“environmental impact statement guidelines” means a document setting out the information that is necessary to enable the Agency to conduct a comprehensive study. (lignes directrices relatives à l’étude d’impact environnemental)
2. These Regulations do not apply to projects for which one of the responsible authorities is the Canadian Nuclear Safety Commission established under section 8 of the Nuclear Safety and Control Act or the National Energy Board established under section 3 of the National Energy Board Act.
3. (1) The Agency must decide, within 90 days after receipt of a project description that includes the information that is set out in the schedule, whether to commence a comprehensive study of the project under subsection 11.01(1) of the Act.
(2) On receipt of the information referred to in subsection (1), the Agency must include a notice indicating the beginning of the 90-day period on its Internet site.
(3) When the Agency commences a comprehensive study of a project, it must, without delay, advise those federal authorities that are likely to be in possession of specialist or expert information or knowledge that is necessary to conduct the environmental assessment of the project.
4. (1) The Agency must provide the proponent with environmental impact statement guidelines after it includes the notice of commencement of an environmental assessment on the Canadian Environmental Assessment Registry Internet site under paragraph 55.1(2)(a) of the Act.
(2) Environmental impact statement guidelines remain valid for a period of three years beginning on the day on which the Agency provides them to the proponent.
(3) At the request of the proponent, the Agency may renew the guidelines in their original or amended form for another period of three years.
5. (1) The Agency must publish the notice referred to in section 22 of the Act within a period of 365 days that begins on the day on which the notice of commencement of an environmental assessment is included on the Canadian Environmental Assessment Registry Internet site.
(2) Despite subsection (1), the period does not include
- (a) any period during which the proponent prepares or collects any information necessary for the Agency to complete the environmental impact statement guidelines or to complete the requirements of the environmental impact statement guidelines, unless the Agency has sufficient information allowing it to otherwise continue the comprehensive study during this period;
- (b) any period requested in writing by the proponent; and
- (c) any time, to a maximum of 30 days following receipt of the environmental impact statement, needed by the Agency to determine whether the information outlined in the environmental impact statement guidelines has been provided.
6. The Agency must include an annual report on the implementation of these Regulations on its Internet site.
7. Section 2 of the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements (see footnote 1) is replaced by the following:
2. These Regulations apply to the environmental assessment of projects, other than projects to which the Establishing Timelines for Comprehensive Studies Regulations apply, that are to be carried out in Canada.
COMING INTO FORCE
8. These Regulations come into force on the day on which they are registered.
INFORMATION TO BE INCLUDED IN A PROJECT DESCRIPTION
1. The name, nature and proposed location of the project.
2. The name and contact information of the proponent and their primary representative for the purpose of the environmental assessment.
3. A description of and the results of any consultations undertaken with other parties including federal authorities and provincial governments, aboriginal groups, the Canadian public or foreign countries.
4. Other information relevant to the conduct of the environmental assessment including the environmental assessment or regulatory requirements of other jurisdictions.
5. A description of the project’s context, purpose and objectives.
6. The sections in the schedule to the Comprehensive Study List Regulations describing the project in whole or in part.
7. A description of the project’s primary components including their purpose, size and capacity.
8. The anticipated production capacity, the production processes to be used, the associated infrastructure and any permanent or temporary structures.
9. A description of all activities to be performed in relation to the project.
10. A description of the project’s location, including:
- (a) its geographic coordinates;
- (b) site maps at an appropriate scale to be able to determine the overall location of the project and the spatial relationship of the project components;
- (c) the legal description of land to be used for the project, including the title, deed or document and any authorization relating to a water lot;
- (d) the project’s proximity to other projects and a description of permanent, seasonal or temporary residences in proximity to the project area; and
- (e) the project’s proximity to Indian reserves, traditional territory and lands and resources currently used for traditional purposes by aboriginal persons.
11. A description of any solid, liquid, gaseous or hazardous wastes likely to be generated during any phase of the project, and of plans to manage these wastes.
12. A description of the anticipated phases of and schedule for the project’s construction, operation and decommissioning.
13. Any federal authority that is, or may be, providing financial support to the project.
14. Any federal land that may be used for the purpose of carrying out the project.
15. Any legislative or regulatory requirements referred to in the Law List Regulations that may be applicable including a list of permits, licences or other authorizations that may be required.
16. A description of the physical and biological setting, including components of the environment that are likely to be affected by the project and a summary of potential environmental effects. As appropriate to the circumstances of the project, this should include information on terrain, water bodies, air, vegetation, fish and wildlife including migratory birds and species listed under the Species at Risk Act and their critical habitat, and information on whether the project may affect fish or fish habitat, and navigable waters or any unique or special resources not already identified.
17. The name, width and depth of any waterway affected by the project and a description of how the waterway is likely to be affected.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
Since the Canadian Environmental Assessment Act (the Act) came into force in 1995, proponents have expressed the need for a more efficient and timely environmental assessment process — particularly with regard to comprehensive studies. The common complaint has been that the process is too slow, which can cause delays in the implementation of projects and increase the overall costs.
To address this issue, in 2010, the Government of Canada amended the Act to streamline the administrative process and to give the Canadian Environmental Assessment Agency (the Agency) responsibility for the conduct of all comprehensive studies, except for projects where the National Energy Board or the Canadian Nuclear Safety Commission is one of the responsible authorities.
The objectives of the legislative changes were to reduce the time required to complete a comprehensive study and enhance the ability to coordinate federal assessments with provincial environmental assessment processes. To achieve these objectives, the amendments establish the Agency as the single federal authority responsible for undertaking comprehensive studies and require the Agency to commence the environmental assessment at an early stage in project planning.
The Establishing Timelines for Comprehensive Studies Regulations (the Regulations) complement these legislative changes by establishing timelines for the completion of the comprehensive studies undertaken by the Agency. The Regulations increase predictability and accountability by
- committing the Agency to completing the comprehensive study process within prescribed time limits; and
- requiring the Agency to report publicly on the implementation of the Regulations.
The requirements in the Act and its regulations on what an environmental assessment must examine are not changing. The focus on delivering high-quality federal environmental assessments will continue.
Description and rationale
The Regulations apply to those comprehensive studies for which the Agency exercises the powers and performs the duties and functions of the responsible authority as outlined in the Act.
The details of the Regulations are as follows:
The Agency will have 90 calendar days from the receipt of a complete project description from the proponent to determine whether to commence a comprehensive study. The Agency will determine that a project description is complete when it includes all of the information set out in the Schedule to the Regulations. This information is consistent with the guidance currently provided to project proponents when preparing a project description for submission to a federal authority.
If the project description is missing information set out in the Schedule, the Agency will refer it back to the proponent for completion. Once the Agency has received a complete project description the 90-day period will start.
On receipt of a complete project description, the Agency will post a notice on its Web site to indicate that the 90-day time period has begun. Proponents and interested parties will then be able to determine when the Agency must reach a decision on whether to commence a comprehensive study.
If it is determined that a comprehensive study will be started, the Agency then has 365 calendar days to complete it. This 365-day time period begins on the day a notice of commencement is posted on the Canadian Environmental Assessment Registry Internet Site (CEARIS) indicating the commencement of a comprehensive study and ends when the Agency publishes a notice for public consultation on the comprehensive study report.
The Regulations stipulate that the Agency must provide a proponent with environmental impact statement guidelines outlining the information needed to conduct the environmental assessment. Issuing such guidelines is a standard current practice whereby the Agency and other federal authorities describe the information needed from proponents in order to complete the comprehensive study report.
A provision that was added following consultation on the draft Regulations is the introduction of an “expiration date” for environmental impact statement guidelines issued by the Agency. These guidelines will expire three years after the date they are issued. At the request of the proponent, the Agency could renew the guidelines in their original or amended form at the end of the three-year period. In renewing the guidelines, the Agency will have the opportunity to consider changes to the environment, the project or environmental assessment requirements. This clause ensures that the environmental impact statement guidelines are up to date and that the information requested will enable a high-quality assessment of the potential impacts a project may have on the environment.
The 365-day time period within which the Agency must complete the comprehensive study does not include the time during which the proponent prepares or collects any information necessary for the Agency to complete the environmental impact statement guidelines. It also does not include the time during which the proponent completes the requirements of the environmental impact statement guidelines. The exception to this would be in a case where a proponent has submitted the environmental impact statement but there is some missing information. While the Agency awaits the missing information, it could proceed with the comprehensive study if it has sufficient other information to do so. This is meant to ensure that the 365-day timeline is only suspended when needed.
A new provision was added, following pre-publication of the Regulations, that requires that the Agency advise proponents, within 30 days following the receipt of the environmental impact statement, as to whether or not the information provided meets the guidelines issued by the Agency and if not, what information is missing or incomplete.
This provides proponents with a degree of certainty as to how quickly they can expect an initial response from the Agency and when the 365-day timeline will resume. (Separate from this initial review, a detailed analysis of the content of the environmental impact statement occurs during the 365-day timeline.) This period, up to a maximum of 30 days, will not count towards the Agency’s 365-day timeline. Some may interpret the addition of this provision as giving the Agency an additional 30 days to complete the comprehensive study and prefer that it had been included in the 365-day timeline. However, before proceeding with the comprehensive study, the Agency must verify that it has all of the information needed as outlined in the environmental impact statement guidelines. This may require that the Agency go back and forth with the proponent and consult with other departments or jurisdictions. Including this review period within the 365-day timeline to complete the comprehensive study could impact the quality of environmental assessments and will be of concern to environmental non-governmental organizations (ENGOs) who view the 365-day timeline as insufficient for conducting high quality environmental assessments — a view not shared by the Agency.
To create a process that is as efficient and predictable as possible, the Regulations impose time limits on the Agency for its part of this phase of the process. Therefore, clarity is provided as to when the clock will resume without impacting the time required to complete the comprehensive study.
Finally, a proponent can submit a written request to suspend the 365-day period to, for example, align the environmental assessment with that of another jurisdiction. In such cases, the days elapsed during the suspension would not count towards the Agency’s timeline for completion.
The aforementioned time suspensions do not take into account all possible factors that could impede the Agency’s ability to meet the 365-day timeline to complete the comprehensive study. Should internal factors or factors that are outside of the Agency’s control come into play and affect the timeline (e.g. legal challenges or issues related to the Crown’s duty to consult with Aboriginal peoples), the Agency will provide an explanation in the annual report to be published on its Web site.
In accordance with the Regulations, once the Agency commences a comprehensive study of a project, it must, without delay, notify federal authorities that are likely to be in possession of specialist or expert information or knowledge that is necessary to conduct the environmental assessment. This ensures engagement of expert federal authorities early in the process to determine whether they have information or expertise that could assist in the assessment of the environmental effects of the project. The Act already requires notification of responsible authorities.
To ensure accountability and transparency, the Regulations require that the Agency report annually on its Web site on its performance vis-à-vis the Regulations, thus allowing interested parties to monitor how long it takes the Agency to complete its role in the comprehensive study process.
There are no additional costs to government associated with the implementation of the Regulations as existing resources will be used to meet the new regulatory requirements, inform stakeholders, post notices and report on the Agency’s performance. The benefit of the Regulations, in concert with the time efficiencies gained through the 2010 legislative amendments, is a more timely, efficient, predictable and accountable comprehensive study process that may contribute to increasing industry confidence and fostering a positive investment climate in the Canadian economy.
The Regulations were pre-published in the Canada Gazette, Part I, on August 14, 2010, for a 30-day comment period. The Agency received comments from the governments of British Columbia, Ontario, Nova Scotia and Newfoundland and Labrador; seven industry associations; two environmental non-governmental organizations; and one member of the public.
Most respondents were generally supportive of the intent of the Regulations. Many had suggestions to improve the clarity of the Regulations and the Schedule which led to some sections being re-worded. As well, the following provisions were added to the Regulations to address comments received by various parties:
- A clause for the notification of federal authorities following the commencement of a comprehensive study.
- A period of up to 30 days for the Agency to review the environmental impact statement to determine if the information outlined in the environmental impact statement guidelines was provided. A more detailed review is undertaken during the 365-day period.
- A clause for the expiry of environmental impact statement guidelines.
Provincial governments were supportive of the Regulations. Two requested that an additional timeline be included for the issuance of the environmental impact statement guidelines by the Agency. Such a timeline was not included as the Agency must maintain flexibility in order to ensure maximum coordination with provincial assessments, including issuing joint environmental impact statement guidelines. Each province’s environmental assessment process has its own requirements with respect to issuance of environmental impact statement guidelines. Some have timelines; most do not. Thus, if a timeline were imposed on the Agency, then each province would also have to meet that timeline if both jurisdictions wanted to remain coordinated. Some provinces also suggested the addition of a timeline for the Minister of the Environment to issue a decision statement at the end of the comprehensive study process; however, these Regulations are binding on the Agency, not on the Minister.
Industry respondents were also generally supportive of the intent of the Regulations. However, some respondents requested that the Agency provide a more detailed description of the steps involved in the 90-day and 365-day time periods with some suggesting the addition of timelines for each step in the process. As the priority is to maximize coordination with the environmental assessment regimes of other jurisdictions, providing a detailed breakdown of the various steps and additional timelines in these Regulations would limit opportunities for coordinated assessments. Such detailed information will be available in individual project agreements. Some industry respondents also suggested that the Regulations include consequences for not meeting the timelines such as deemed approval for projects if the Agency fails to meet the timelines. However, the environmental assessment process in itself does not provide a project approval. Rather, the Act requires that a responsible authority consider the results of an environmental assessment before making a decision or taking an action that would allow a project to proceed. Therefore, a deemed-approval clause cannot be included as it would contravene the Act.
Some industry respondents also commented that the timelines provided for in the Regulations are too lengthy to gain efficiencies. Undertaking high quality comprehensive studies of major projects that have the potential to cause significant adverse environmental effects does require time and these timelines represent the best estimate based on the Agency’s experience in managing comprehensive studies under the Major Resources Project Initiative. These Regulations complement the efficiencies to the comprehensive study process gained through the 2010 amendments to the Act, as well as provide greater predictability and accountability.
For their part, environmental organizations expressed concern that the Regulations circumvent the parliamentary review of the Act which was referred in June 2010 to the Standing Committee on Environment and Sustainable Development. However, there is existing legislative authority under the Act for the Governor-in-Council to make these Regulations. Furthermore, the coming into force of these Regulations does not affect or limit the scope of the parliamentary review. It introduces efficiencies to the process that is, and will be, in place until Parliament enacts new or amended environmental assessment legislation.
Environmental organizations also expressed concern that the Agency is under-resourced and that the quality of environmental assessments will suffer as a result. However, over the last few years, as the Agency has taken on additional responsibilities in relation to comprehensive studies, it has been resourced accordingly and has the expertise and the capacity to deliver high quality environmental assessments.
Environmental organizations further commented that the timelines in the Regulations are arbitrary. In fact, the timelines represent the best estimate based on the Agency’s experience in managing comprehensive studies under the Major Resources Project Initiative. Performance with respect to the timelines will be closely monitored and reported on. Lastly, environmental organizations were concerned that the Agency’s continuing with an environmental assessment while a proponent is gathering additional information could negatively impact public consultations, particularly if all of the information is not available. The ability for the Agency to continue with the assessment when information is missing is meant to allow work to continue while proponents address minor variances from the environmental impact statement guidelines, and not major variances that would affect the assessment or the conduct of public participation. Public participation requirements are clearly outlined in the legislation and those requirements are not affected by these Regulations.
Implementation, enforcement and service standards
The Agency is organized in a way that enables it to meet the requirements of the Regulations. The Agency has transformed itself in the last few years to take on the roles given to it for environmental assessments of major natural resource projects through the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects.
Federal authorities across the country will, in many cases, remain the first point of contact for proponents. Once contacted by a proponent regarding a project that is likely to require a comprehensive study, a federal authority would refer the project to the appropriate regional office of the Agency which would then deal directly with the proponent of a project. The Agency will communicate any changes in procedures to stakeholders using existing mechanisms, including through interdepartmental and intergovernmental committees, and posting relevant information on its Web site.
There is no formal compliance or enforcement mechanism applicable to the Act or its regulations. However, the Regulations are in and of themselves a type of service standard as the Agency is required to complete certain steps of the comprehensive study process within prescribed timelines. In addition, the Regulations include a mandatory annual performance reporting requirement. This will ensure that the Agency is publicly accountable for its performance in meeting the requirements of the Regulations in a transparent fashion.
Legislative and Regulatory Affairs
Canadian Environmental Assessment Agency
Place Bell Canada, 22nd Floor
160 Elgin Street
S.C. 1994, c. 46, s. 5(1)
S.C. 1992, c. 37