Vol. 146, No. 15 — July 18, 2012
SOR/2012-148 July 6, 2012
CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 2012
Prescribed Information for the Description of a Designated Project Regulations
The Minister of the Environment, pursuant to paragraph 84(b) of the Canadian Environmental Assessment Act, 2012 (see footnote a), makes the annexed Prescribed Information for the Description of a Designated Project Regulations.
Ottawa, July 6, 2012
Minister of the Environment
PRESCRIBED INFORMATION FOR THE DESCRIPTION OF A DESIGNATED PROJECT REGULATIONS
1. The information set out in the schedule is prescribed for the purposes of subsection 8(1) of the Canadian Environmental Assessment Act, 2012.
AMENDMENT TO THESE REGULATIONS
2. Paragraph 17(a) of the schedule to these Regulations is replaced by the following:
- (a) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act;
COMING INTO FORCE
S.C. 2012, c. 19
3. (1) These Regulations, other than section 2, come into force on the day on which section 52 of the Jobs, Growth and Long-term Prosperity Act, chapter 19 of the Statutes of Canada, 2012, comes into force.
S.C. 2012, c. 19
(2) Section 2 comes into force on the first day on which both sections 52 and 141 of that Act are in force.
PRESCRIBED INFORMATION FOR THE DESCRIPTION OF A DESIGNATED PROJECT
1. The project’s name, nature and proposed location.
2. The proponent’s name and contact information and the name and contact information of their primary representative for the purpose of the description of the project.
3. A description of and the results of any consultations undertaken with any jurisdictions and other parties including Aboriginal peoples and the public.
4. Other relevant information, including
- (a) the environmental assessment and regulatory requirements of other jurisdictions; and
- (b) information concerning any environmental study that is being or has been conducted of the region where the project is to be carried out.
5. A description of the project’s context and objectives.
6. The provisions in the schedule to the Regulations Designating Physical Activities describing the project in whole or in part.
7. A description of the physical works that are related to the project including their purpose, size and capacity.
8. The anticipated production capacity of the project and a description of 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 any solid, liquid, gaseous or hazardous waste that is likely to be generated during any phase of the project and of plans to manage those wastes.
11. A description of the anticipated phases of and the schedule for the project’s construction, operation, decommissioning and abandonment.
PROJECT LOCATION INFORMATION
12. A description of the project’s location, including
- (a) its geographic coordinates;
- (b) site maps produced at an appropriate scale in order to determine the project’s overall location 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 any permanent, seasonal or temporary residences;
- (e) the project’s proximity to reserves, traditional territories as well as lands and resources currently used for traditional purposes by Aboriginal peoples; and
- (f) the project’s proximity to any federal lands.
13. A description of any financial support that federal authorities are, or may be, providing to the project.
14. A description of any federal land that may be used for the purpose of carrying out the project.
15. Any federal legislative or regulatory requirements that may be applicable including a list of permits, licences or other authorizations that may be required in order to carry out the project.
16. A description of the physical and biological setting.
17. A description of any changes that may be caused, as a result of carrying out the project, to
- (a) fish as defined in section 2 of the Fisheries Act and fish habitat as defined in subsection 34(1) of that Act;
- (b) aquatic species, as defined in subsection 2(1) of the Species at Risk Act; and
- (c) migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994.
18. A description of any changes to the environment that may occur, as a result of carrying out the project, on federal lands, in a province other than the province in which the project is proposed to be carried out or outside of Canada.
19. Information on the effects on Aboriginal peoples of any changes to the environment that may be caused as a result of carrying out the project, including effects on health and socio-economic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
20. A summary of the information required under sections 1 to 19.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Government’s 2012 Economic Action Plan on Jobs, Growth and Long-term Prosperity, presented in the House of Commons on March 29, 2012, committed to reforming the regulatory system in the resource sector in order to support responsible resource development. The reform introduces system-wide legislative improvements to the review process for major economic projects to achieve the goal of “one project, one review” in a clearly defined time period, reducing duplication and regulatory burdens, supporting consultation with Aboriginal peoples, and focusing resources on large projects where the potential environmental impacts are the greatest.
The Jobs, Growth and Long-term Prosperity Act introduced a new Canadian Environmental Assessment Act, 2012 (CEAA 2012) and repealed the Canadian Environmental Assessment Act (the former Act).
The purpose of CEAA 2012 is to update the federal environmental assessment process and to focus reviews on those project proposals that have a greater potential for significant adverse environmental effects in areas of federal jurisdiction. The legislation is part of a larger proposal to ensure that the environmental assessment, regulatory permitting, and aboriginal consultation process for project reviews is more timely, improves environmental protection, reduces regulatory burden, duplication and overlap, and provides meaningful Aboriginal consultation, especially in relation to Canada’s resource sector in order to encourage growth in that sector.
CEAA 2012 and its regulations support the recommendations in a report tabled by the Standing Committee on Environment and Sustainable Development (the Committee) in March 2012. This report is the result of the statutory review of the former Actthat was conducted by the Committee from October 2011 to March 2012. The report contains the Committee’s observations and 20 recommendations aimed at improving efficiency while ensuring improved environmental outcomes. A key recommendation of the Committee was the use of a “project list” approach in environmental assessment instead of the “all in unless excluded” approach taken by the former Act. This approach focuses the application of federal environmental assessment requirements on projects that have a greater potential to cause adverse environmental effects.
Under CEAA 2012, the Regulations Designating Physical Activities prescribe the physical activities which, if carried out individually or in combination, constitute a designated project that will or may be subject to the environmental assessment requirements of the new Act. The Act requires the proponent of a designated project — except projects that are regulated by the Canadian Nuclear Safety Commission (CNSC) or the National Energy Board (NEB) — to submit a description of the project to the Canadian Environmental Assessment Agency (the Agency). (For projects that are regulated by the CNSC or the NEB, those agencies will be responsible for conducting the environmental assessment.) The project description to be submitted to the Agency must include prescribed information. Upon receipt of a project description that includes the prescribed information, the Agency has 45 days, including a 20-day public comment period, to determine whether an environmental assessment is required.
The Prescribed Information for a Description of a Designated Project Regulations set out the information that the proponent of a proposed project must include in the project description document that is submitted to the Agency. The Regulations ensure that the required information will be sufficient to enable the Agency to reach a decision on whether an environmental assessment of the project is required.
Under the former Act, the Establishing Timelines for Comprehensive Studies Regulations included a schedule that contained the information to be included in a project description. The new Regulations contain similar requirements to those set out in the former regulatory schedule, with modifications as required to reflect the requirements of the new Act.
CEAA 2012 establishes a federal environmental assessment process focused on those major economic projects that have a greater potential to have significant adverse effects on areas of federal jurisdiction. The types of activities to which the new Act applies are identified in regulations. The proponent of all such “designated projects” — except those regulated by the NEB or the CNSC — is required to submit a project description to the Agency to determine whether an environmental assessment of the project is required. CEAA 2012 requires that the information to be provided in a project description be prescribed in regulations.
The objective of these Regulations is to prescribe the information to be provided in a project description to enable the Agency to reach a timely decision on whether an environmental assessment of the project is required.
The Regulations set out the information that the proponent of certain project proposals must include in the project description to be submitted to the Agency. The required information is divided into five categories: general information, project information, project location information, federal involvement and environmental effects. The requirements of the Regulations are very similar to those set out in the former schedule to the Establishing Timelines for Comprehensive Studies Regulations under the former Act, with modifications as required to reflect the requirements of CEAA 2012. While the Regulations require some specific information not required under the former Regulations, such as information on environmental studies of the region where the project is proposed, some information will no longer be required, such as a description of the project’s proximity to other projects. Overall, the information required in a project description under these Regulations is comparable to that required previously for major projects.
The information required in a project description under these Regulations is also similar in nature to the type of information that a proponent must provide to provincial authorities, though with an emphasis on information related to effects on areas of federal jurisdiction. Therefore, a proponent may be able to submit a single project description to both the Agency and the appropriate provincial authority which would meet the requirements of both jurisdictions.
Consultation on the Establishing Timelines for Comprehensive Studies Regulations under the former Canadian Environmental Assessment Act
Since the Regulations are very similar to the Schedule to the Establishing Timelines for Comprehensive Studies Regulations under the former Canadian Environmental Assessment Act, the comments received during the consultation process on the former Regulations were considered in developing the new Regulations.
Opportunity was provided for the public to comment on the schedule to the former Regulations when they were made available in the Canada Gazette, Part Ⅰ, on August 14, 2010, for a 30-day comment period. The Agency received comments from two industry associations in relation to the schedule.
In general, industry was supportive of the information requirements and provided some suggestions to improve the clarity of the schedule. However, industry raised concerns with respect to the appropriate level of detail to require at the early stage of project planning.
To address the comments received, some sections in the former schedule were re-worded to provide more clarity and specificity to the information required. To ensure continuous clarity of information requirements, the same considerations were applied to the new Regulations.
Consultation on the Prescribed Information for a Description of a Designated Project Regulations under the Canadian Environmental Assessment Act, 2012
The Agency consulted on the Prescribed Information for a Description of a Designated Project Regulations through its Web site. A consultation paper was posted on May 3, 2012, and the public was invited to submit comments by May 23, 2012.
The Agency received comments concerning the proposed Regulations from six industry organizations, one provincial government, one member of the public and nine Aboriginal organizations.
Industry was generally supportive of the Regulations, but expressed concern about the level of detail that will be required at the early stage of project planning. Most requested that the Regulations provide more clarity and specificity on the information requirements and the level of detail required.
The Province of Saskatchewan also raised concern about the level of detail required, noting that if the information requirements are too extensive at this stage it could result in delays in decision making. They also noted that the objective to reduce overlap and duplication with other jurisdictions is not clear in the Regulations.
The member of the public was generally supportive of the Regulations and provided detailed suggestions to clarify information requirements and the appropriate level of detail to ensure a transparent and thorough process.
Aboriginal organizations expressed concern about ensuring that the exercise of their rights under section 35 of the Constitution Act, 1982 be recognized and protected in the environmental assessment process. The majority requested that the Regulations require more detail on various subjects impacting Aboriginal peoples such as treaty and Aboriginal rights, Aboriginal title, land claims agreements, traditional knowledge, the potential for the project to impact Aboriginal rights and title, and other environmental effects as defined in consultation with Aboriginal peoples.
Several federal departments also provided input on the Regulations. In general, concerns related to the scope of the environmental effects requirements, and several made suggestions to add more clarity and specificity to the information requirements.
In consideration of the comments received, the Regulations were reviewed to ensure that the prescribed information is sufficient to enable the Agency to determine whether an environmental assessment of the designated project is required, while recognizing that the level of detail required must be commensurate with the early stages of project development. As a result, the requirement to provide information on the proximity of the proposed project to other projects was removed as it was determined that this information is not necessary for the decision on whether a federal environmental assessment is required, but at the later stages of an environmental assessment for the determination of potential cumulative effects. It was determined that many of the comments suggesting more detailed or additional information requirements would be applicable to the later stages of an environmental assessment, should one be required.
The Agency will develop guidance material to assist project proponents in preparing a project description. The comments received are also being used to inform development of that guidance.
6. Small business lens and “One-for-One” Rule
The Regulations will affect a relatively small number of small businesses and impose minimal incremental administrative burden costs on those businesses. These businesses are required to submit similar information to provincial authorities in order to satisfy provincial requirements and there are limited additional federal-specific requirements. The requirements under these Regulations are required only once by the federal government. There is no subsequent information or compliance activity required under these Regulations. The Government is implementing a “One-for-One” Rule to control administrative burdens on business. The One-for-One Rule is triggered for these Regulations. The associated figures are being assessed and will be reported at a later date.
The Regulations ensure that the Agency will receive adequate information in a description of a designated project to inform its decision on whether an environmental assessment of the project under CEAA 2012 is required. The prescribed information will ensure that decisions on the need for an environmental assessment are made early in the planning stages of a project, and will assist in achieving an efficient and effective environmental assessment process.
8. Implementation and enforcement
Under CEAA 2012, a proponent is prohibited from carrying out, in whole or in part, a designated project unless the Agency determines that an environmental assessment is not required or, if an environmental assessment is required, the proponent complies with the conditions of the decision statement. A proponent who contravenes this requirement could be subject to a fine for each contravention committed. A proponent of a designated project — other than a project regulated by the NEB or CNSC — is required to submit a description of the designated project to the Agency to enable a decision on whether an environmental assessment of the project is required. The project description must include the prescribed information set out in these Regulations. If the Agency is of the opinion that the description is incomplete or does not contain sufficient details to determine whether an environmental assessment of the project is required, the Agency may, within 10 days after receiving the project description, request that the proponent provide the necessary information. Upon receipt of a complete project description from a proponent, the Agency has 45 days, including a 20-day public comment period, to determine whether to require a federal environmental assessment. Once the Agency reaches a decision on whether or not a federal environmental assessment of a project should be conducted, notice of the decision must be posted on the Registry Internet site.
The Agency will promote and monitor compliance with CEAA 2012 and its regulations. The Agency will assume responsibility for conducting or administering environmental assessments for designated projects, except for designated projects that are regulated by the NEB or CNSC. The Minister of the Environment will report on an annual basis to Parliament on the Agency’s activities as well as the administration and implementation of the new Act.
Legislative and Regulatory Affairs
Canadian Environmental Assessment Agency
160 Elgin Street, 22nd Floor
S.C. 2012, c. 19, s. 52