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July 20, 2012

New CEAA Regs Released

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Thousands of screenings cancelled: Ottawa publishes regulations to implement new Canadian Environmental Assessment Act 2012

The federal Minister of the Environment has published the first three regulations needed to implement the new Canadian Environmental Assessment Act 2012 (CEAA 2012). The regulations list the types of projects that will be required to undergo federal environmental assessment, prescribe information requirements and provide for cost recovery from proponents. They also specify that participant funding will be made available for all designated projects that are subject to an EA. The regulations, which were published in the Canada Gazette, Part II on July 18, 2012, are summarized below. They took effect with the proclamation in force of the CEAA 2012 on July 6, 2012.

Bill C-38’s controversial revisions to limiting the extent of protected “fish and fish habitat” in the Fisheries Act have not yet been proclaimed in force.

At the same time, the federal screening assessments of more than 2,950 projects -including sand and gravel pits, access roads to oil and gas wells, pipeline right of ways,airport expansions, and water and waste treatment facilities – have been permanently suspended. Sixteen screening assessments have been continued (see Transition Provisions, below). Only those proposals that would have met the threshold for a comprehensive study under the previous Act will be subject to federal assessment under the CEAA 2012. Those assessments will focus on only the potential adverse environmental effects that fall within federal jurisdiction

  • fish and fish habitat
  • other aquatic species at risk
  • migratory birds
  • federal lands
  • effects that cross provincial or international boundaries
  • effects that impact on Aboriginal peoples, such as their use of lands and resources for traditional purposes
  • changes to the environment that are directly linked to or necessarily incidental to any
  • federal decisions about a project.

There are currently just 70 active projects listed on the electronic registry of the Canadian Environmental Assessment (CEA) Agency. Two weeks ago, there were 2,970.

CEAA 2012 was included as part of the omnibus federal budget bill that received Royal was included as part of the omnibus federal budget bill that received Royal Assent on June 29, 2012. The applicable sections of Bill C-38, were proclaimed in forceon July 6, 2012. Unofficial versions of the draft EA regulations had been posted for several weeks on the CEA Agency website. There was no formal consultation on the Regulation Designating Physical Activities; however, the government says consultation will be undertaken on future amendments to the regulation.

Regulations Designating Physical Activities (SOR/2012-147): The regulation lists those "designated projects" that may trigger an EA by the CEA Agency, the Canadian Nuclear Safety Commission (CNSC) or the National Energy Board (NEB). The regulation largely duplicates the list in the previous Comprehensive Study List Regulations, with some minor revisions and the deletion of a number of works or activities in national parks or park reserves.

Prescribed Information for the Description of a Designated Project Regulations(SOR/2012-148): The proponent of a designated project must submit to the CEA Agency

  • the name, nature and location of the project (including physical works, production capacity and processes, infrastructure needs, wastes generated, etc.)
  • any consultation or environmental studies undertaken
  • changes that may be caused to fish or fish habitat (as defined in the Fisheries Act), aquatic species (as defined in the Species at Risk Act) or migratory birds (as defined in the Migratory Birds Convention Act, 1994)
  • other environment changes on federal lands in other provinces
  •  effects on Aboriginal peoples
  • a description of any federal financial support or involvement
  • the EA and regulatory requirements of other jurisdictions.

The CEA Agency will develop guidance material to assist project proponents in preparing a project description. 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. This regulation does not apply to projects regulated by the CNSC or the NEB.

Cost Recovery Regulations (SOR/2012-0146): Cost recovery is only applicable to assessments by review panels. The CEA Agency can recover costs of specified services from the proponent

  • third party costs for travel, publishing and distribution, advertising, telecommunications, and public meetings and panel hearings
  • the salaries, benefits and travel expenses of federal employees
  • per diem rates and travel expenses for the review panel chair and panel members.

These charges will not apply to federal authorities, agencies or bodies of the NWT or Yukon, band councils or provincial governments (except Crown agencies).

Transition Provisions

The CEAA 2012 sets out transition provisions for EAs that were already underway when the new legislation came into force. The new Act and associated timelines will apply to ongoing review panels. Comprehensive studies begun since July 2010 will continue under the former Act in accordance with the tighter timelines imposed by regulation in 2011. For those launched prior to July 2010, a comprehensive study report must be provided to the Minister within six months.

Sixteen projects that were being assessed as screenings are to continue under the former Act. Pursuant to ss. 14(2) and 124(2) of the CEAA 2012, the 16 projects that “may cause adverse environmental effects” are listed in Schedule 1 of the Order Designating Physical Activities issued by the Minister on July 6, 2012. All other screening assessments have been permanently suspended.

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