New regulations under CEAA 2012 came into force on October 24, 2013, changing the triggers for determining which projects are subject to federal environmental assessment. The Regulations Amending the Regulations Designating Physical Activities replace the Schedule of physical activities that constitute designated projects under the existing Regulation, and change or add a number of definitions. The changes also clarify which triggers apply to new projects, and which apply to project expansions. The amendments are intended to reflect a focus on projects that have the greatest potential for significant adverse environmental effects in areas of federal jurisdiction. The new regulations also include transitional provisions.
If your project type has been added to the list, or if the threshold for your project type has been modified, or if your project is an expansion, we encourage you to seek legal advice on the extent to which this new regulation impacts your project.
Types of projects that have been added are:
- 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 areas set out in Exploration Licences issued under the Canada Petroleum Resources Act; and
- expansions to oil sands mines.
Types of projects that have been removed are:
- groundwater extraction facilities;
- heavy oil and oil sands processing facilities (however, note that oil sands mines are still included in the Schedule);
- 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, particle board, plywood, chemical explosives, lead-acid batteries and respirable mineral fibres).
Thresholds setting the size of project that constitutes a designated project have been modified for the following project types:
- in-stream facilities for tidal power generating facilities;
- liquefied natural gas storage facilities;
- rare earth element mines;
- mine expansions;
- offshore mines;
- stone quarries and sand and gravel pits;
- expansions in general;
- expansions of dams and dykes;
- expansions of facilities for the treatment, incineration, disposal or recycling of hazardous waste;
- National Defence expansions; and
- NEB-regulated pipelines (other than offshore pipelines).
Other amendments include:
- revision of the following definitions: marine terminal, water body;
- addition of the following terms: area of mine operations, canal, drilling program, exploratory well, flowline; and
- 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.
Finally, the transitional provisions provide that if a project was previously not listed and is now a designated project under the new regulations, the new regulations apply unless 1) permits have already been issued by a federal authority, or 2) the carrying out of the project has already started, or 3) an assessment is already underway under the process of another jurisdiction or under the CNSC or NEB regulatory processes. If a project was subject to a “screening” type of assessment under the former CEAA, and as a result of CEAA 2012 coming into force the screening was not required to be continued and completed, then the new regulations do not apply to that project.
For information on CEAA 2012 and how it has changed federal environmental assessment, please see our previous blog posts: Introduction to the Canadian Environmental Assessment Act, 2012 and New Canadian Environmental Assessment Act in Force / Important Amendments to National Energy Board Act in Force.
The Regulations Amending the Regulations Designating Physical Activities and Regulatory Impact Statement are posted on the CEA Agency website.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.