On December 16, 2019, several regulations came into force under B.C.'s new Environmental Assessment Act (the “New BCEAA”). The most notable of these is the new Reviewable Projects Regulation (the “New RPR”), which sets out the types of projects that are automatically reviewable (i.e. subject to the New BCEAA) if they meet certain criteria. The New RPR introduces some significant changes for those who wish to start new projects or modify existing projects.
Category-Specific Thresholds for New Projects and Modified Projects (a.k.a. Design Thresholds)
Like its predecessor, the New RPR sets out various categories of projects, each with category-specific thresholds for new projects and category-specific thresholds for modifications to projects. These categories are grouped under the following high-level headings: Industrial (includes various types of manufacturing and processing), Mines, Energy, Water Management, Waste Disposal, Transportation, and Tourist Destination Resorts.
In the case of a proposed new project, the project proponent identifies the category that applies (if any) and considers whether the proposed project meets the “new project” criteria and thresholds for that category. If so, the project is reviewable and an Initial Project Description must be submitted in order to start the New BCEAA process. There are only a few changes to the categories themselves (e.g. changes to industrial project codes, addition of oil refineries category, removal of food processing categories, changes in the solid waste disposal category and the transmission lines category). Also, many of the category-specific “new project” criteria have been updated (discussed further below).
For project modifications, one of the changes in the New RPR is that a project with an existing Environmental Assessment Certificate (“Certificate”) is not subject to the New RPR's category-specific thresholds for project modifications. Instead, if there is a Certificate in place then project modifications are handled via the Certificate amendment process under s. 32 of the New BCEAA. Certificate amendments are relatively common and are often required for project modifications that fall well below the project modification thresholds in the regulation. The New BCEAA sets out some new process requirements for Certificate amendments.
The New RPR category-specific project modification criteria and thresholds apply to uncertified projects, e.g. (i) constructed before 1995, or (ii) constructed after 1995 but which fell below the thresholds for new projects at the time. Proponents who are planning to modify an existing project or industrial facility that does not have a Certificate should check whether any of the project categories apply, and if so, whether the proposed modification meets the category-specific criteria and thresholds for project modifications. If the proposed modification meets the category-specific criteria and thresholds, it is reviewable and an Initial Project Description is required in order to start the process.
For a few categories, there are also criteria for review of the dismantling or abandonment of an existing project (e.g. dams, dikes, water diversion projects, shoreline modification projects).
If a project is a reviewable project, it cannot proceed without a decision being made under the New BCEAA. In some cases, the Minister may order that a reviewable project is exempt from the requirement for a Certificate. Exemption orders must be made in accordance with the exemption process and considerations in the New BCEAA.
Effects Thresholds - Not Category-Specific
The New RPR has added “effects thresholds” which apply to projects in the listed categories, regardless of whether they meet their category-specific criteria. A new project, or a modification of an existing project, in any listed category is reviewable if:
- it emits 380,000 tonnes annually of one or more greenhouse gases (“GHGs”) directly from project facilities, measured in carbon dioxide equivalents (“CDEs”); or
- it is located, either in whole or in part, in an area listed in the Protected Areas (Environmental Assessment Act) Regulation and will have a significant adverse effect in that area, (subject to certain grand-parenting provisions).
There are also land clearing effects thresholds (600 hectares, or 60 km or more of land not alongside and contiguous to land previously developed for a linear development) that apply to projects in most categories.
The concept of notification thresholds is new to the B.C. regime. As of April 1, 2020, the new project notifications thresholds will come into effect. These will require the proponent to deliver a project notification to the Chief Executive Assessment Officer (“CEAO”) if a project is not a reviewable project but meets any of the notification criteria. The notification criteria for new projects include:
- Projects that are designated under the Impact Assessment Act (Canada) and are not located wholly within federal lands or Indian Act reserves;
- Projects that will result in peak employment by the proponent of at least 250 full-time employees;
- Projects that will emit at least 125,000 tonnes of GHGs (as measured in CDEs) directly from project facilities;
- Transmission lines that are greater than 230 kV and greater than 40 km in length;
- Projects that would meet various thresholds listed in the New RPR if those thresholds were reduced by 15%; and
- Certain types of projects that would include clearance of (i) at least 40 km in length of land that is not alongside and contiguous to an area previously developed for a linear development, or (ii) 450 hectares of land (unless already authorized by the minister under the Resort Timber Administration Act).
There is also a notification requirement for the modification of an existing project that, as modified, emits at least 125,000 tonnes per year of GHGs directly from project facilities. Only one such notification is required - subsequent modifications of the same facility do not require further notifications.
The time limit for notification is within 15 days after the proponent first applies for any of the specified permits/authorizations for that project type (see the Reviewable Projects Transition Regulation), or by June 29, 2020 if the applications were all made before April 1, 2020 and none of the authorizations are obtained by April 1, 2020.
Upon receiving a notification for a project exceeding a GHG notification threshold, the CEAO must notify the Minister of Environment and Climate Change Strategy. Otherwise, the CEAO may (i) submit the notification to the Minister for further consideration (and possible designation as a reviewable project), (ii) notify the proponent that further review by the CEAO is required, or (iii) provide notice to the proponent that no further review is necessary.
Changes to New Project Criteria
A number of changes were made to the category-specific criteria for new projects. Some of the more significant changes include:
- The production capacity threshold for new placer mines has decreased from 500,000 tonnes per year to 250,000 tonnes per year of pay dirt;
- There are new criteria in the “power plant” category for wind generation projects, in-stream tidal power and other tidal power generating facilities (matching the new project thresholds under the federal Impact Assessment Act);
- The voltage criterion for transmission lines has been lowered from 500 kV to 345 kV (if 40 km or more in length) – the lower voltage aligns with federal criteria;
- Transmission lines, transmission pipelines, public highways and railways that are alongside and contiguous to an area of land previously developed for a transmission line, transmission pipeline, public highway or railway are not reviewable (this concept aligns with the corresponding federal requirements, although the specified lengths are different);
- There is a new criterion for an LNG storage facility designed to store 136,000 m3 of LNG (matching the threshold under the federal Impact Assessment Act);
- In the new category for oil refineries, a project is reviewable if it includes a heavy oil upgrader with an input capacity of 10 000 m3/day of petroleum (matching the federal requirement);
- The Natural Gas Processing Plant design capacity criterion was removed - any new natural gas processing facility is reviewable if it will result in sulphur emissions to the atmosphere of 2+ tonnes per day;
- The former “Local Government Solid Waste Management Facilities” category has been expanded to the “Solid Waste Management Facilities” category, to add proponents that are not local governments, and to cover not only municipal solid waste but any non-hazardous solid waste, using the same thresholds as before; and
- The criteria for all of the tourist resort categories no longer reference the number of commercial bed units – other thresholds remain in place.
In most cases these changes are refinements, or updates to align with other legislation. There are also changes to some of the criteria for modifications of existing projects.
Forthcoming Regulations and Resources
A number of regulations are still under development, some of which are required for implementing significant changes envisioned under the New BCEAA. Foremost among those are new regulations relating to Indigenous nation capacity funding and the much anticipated Dispute Resolution Regulation which is intended to facilitate consensus building between the CEAO and participating Indigenous nations at various points in the new EA process.
These and other regulations, as well as certain policy documents, are anticipated to be completed sometime in mid-2020. Further regulations pertaining to regional assessments and strategic assessments are expected in late 2020.
Lawson Lundell's Environmental, Indigenous and Natural Resources Blog focuses on environmental, indigenous and natural resources law, as well as related litigation. Included are summaries of significant cases from Canadian appellate courts, changes in the legal framework governing resource development including energy and climate change policy, and key decisions from the more influential regulatory bodies in Canada.
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