The Canadian Environment Assessment Agency (the “Agency”) has issued a Public Notice regarding proposed amendments to the Regulations Designating Physical Activities, SOR/2012-147 (the “Regulations”).

The Regulations contain a schedule which sets out the physical activities that constitute a “designated project” and consequently may be subject to an environmental assessment under the Canadian Environmental Assessment Act, 2012.  The Regulations also link each designated activity to a federal authority: either the Agency, the Canadian Nuclear Safety Commission or the National Energy Board.  The proposed amendments set out a new schedule of designated activities linked to these federal authorities.

The Agency’s Public Notice and proposed amendments can be found at: http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=87EAF61E-1

The Agency’s Regulatory Impact Analysis Statement indicates that the objective of the amendments is to ensure that the Regulations “appropriately reflect those major projects that have the greatest potential for significant adverse environmental effects in areas of federal jurisdiction.”  In accordance with this objective, the physical activities set out in the schedule to the Regulations include a description and in most cases a “threshold” to capture projects of at least a certain size to ensure that the focus is on major projects. The proposed amendments also aim to clarify the Regulations, such as that the environmental assessment of a proposed new project considers the full life cycle of the project.

Some of the key proposed changes to the physical activities in the schedule to the Regulations are:

  • Additions are proposed that would designate the following types of projects: diamond mines; apatite mines; railway yards; international and interprovincial bridges and tunnels; bridges that cross the St-Lawrence Seaway; the first offshore exploratory wells in Exploration Licence areas; and expansions to oil sands mines.
  • Deletions are proposed to exclude the following types of projects: ground water extraction facilities; heavy oil and oil sands processing facilities; pipelines and electrical transmission lines not regulated by the NEB; potash mines and other industrial mineral mines; and industrial facilities.
  • The threshold for expansions generally would be modified to an increase of 50 per cent or more in the size of the facility and that the expanded facility must meet or exceed the threshold for a new facility of that type.
  • The threshold storage capacity for liquefied natural gas storage facilities would be increased from 50,000 t to 55 000 t or more.
  • The ore production capacity threshold for rare earth element mines would be reduced from 3000 tonnes to 600 tonnes per day.
  • The threshold for mine expansions would be modified to a 50% increase in the area of mine operations and a resulting mine that meets the production capacity threshold for a new mine of that type.
  • The threshold for pipelines would be reduced from 75 km on new right-of-way to 40 km of new pipe whether or not it is on new right-of-way.

In addition to the new schedule, the proposed amendments delete, replace and add definitions.  For example, the existing definitions of “abandonment,” “wetland” and “right-of-way” are removed, while the existing definitions of “marine terminal” and “waterbody” are revised.  New definitions for “area of mine operations,” “canal,” “drilling program” and “exploratory well” are proposed.

The proposed amendments also set out transitional provisions.  These provisions provide, for instance, that the amended Regulations would not apply to a physical activity that was not previously designated if, at the time the amended Regulations came into force the physical activity had already commenced, a federal authority had already permitted the physical activity to be carried out or an environmental assessment of the physical activity had begun.

The Agency’s website indicates that the proposed amendments to the Regulations will be published in the Canada Gazette, Part I on April 20, 2013 for a 30-day public comment period.  Interested parties may forward any comments to:

John McCauley, CMA

Director, Legislative and Regulatory Affairs

160 Elgin Street, 22nd Floor

Ottawa ON K1A 0H3

Tel.: 613-948-1785

Fax: 613-957-0897

Email:Regulations@ceaa-acee.gc.ca