Vol. 144, No. 33 — August 14, 2010

Establishing Timelines for Comprehensive Studies Regulations

Statutory authority

Canadian Environmental Assessment Act

Sponsoring agency

Canadian Environmental Assessment Agency

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Since the Canadian Environmental Assessment Act (the Act) came into force in 1995, proponents have expressed the need for a more efficient and timely environmental assessment process — particularly with regards to comprehensive studies. The common complaint has been that the process is too slow, which can cause delays in the implementation of projects and increase the overall costs.

To address this issue, the Government of Canada recently amended the Act to streamline the administrative process and provide new authority for the Canadian Environmental Assessment Agency (the Agency) to assume responsibility for the conduct of all comprehensive studies except for projects regulated by the National Energy Board and the Canadian Nuclear Safety Commission.

These legislative changes will reduce the time required to determine if a comprehensive study should be commenced, and to complete the environmental assessment, as there will be one federal authority responsible for making the initial decisions and completing the comprehensive study. Furthermore, an early start will enable the federal assessment to begin in coordination with provincial processes, and enhance the ability to coordinate and collaborate on the environmental assessment.

The proposed Establishing Timelines for Comprehensive StudiesRegulations (the proposed Regulations) would complement these legislative changes by imposing mandatory timelines on the Agency for its role in conducting comprehensive studies. The proposed Regulations would increase predictability and accountability by

• committing the Agency to completing the comprehensive study process within prescribed time limits; and
• requiring the Agency to report publicly on the implementation of the Regulations.

The requirements in the Act and its regulations on what must be examined through an environmental assessment are not changing. High-quality federal environmental assessments would continue to be delivered.

Description and rationale

The proposed Regulations would apply only to those comprehensive studies for which the Agency exercises the powers and performs the duties and functions of the responsible authority as proposed in the legislative amendments.

The details of the proposed Regulations are as follows:

• The Agency would have an initial period of 90 days from the receipt of a project description that complies with the requirements set out in the schedule to the Regulations to determine whether a comprehensive study should be started. The information required for a project description will be clearly spelled out in a schedule to the Regulations, which is consistent with the guidance currently provided to project proponents when preparing a project description for submission to a federal authority.
• Upon receipt of a complete project description, the Agency would be required to post a notice on its Web site to indicate that the 90-day time period has begun. Proponents and interested parties would then be able to track the amount of time the Agency takes to determine if a comprehensive study should be started.
• Once it is determined that a comprehensive study should be undertaken and a notice of commencement is posted on the Canadian Environmental Assessment Registry Internet site, the Agency would be required to provide the proponent with terms of reference outlining the information required for the environmental assessment. Issuing terms of reference is a current practice whereby the Agency and other federal authorities describe the information needed from proponents in order to complete the comprehensive study report.
• If a comprehensive study is started, the Agency would be required to complete it within a period of 365 days. The 365-day period is in addition to the initial 90-day period to determine if a comprehensive study should be started. It would start on the day the notice of commencement is posted on the Canadian Environmental Assessment Registry Internet site and end when the Agency publishes a notice for public consultation on the comprehensive study report.
• The 365-day period would be paused while the proponent collects any information necessary to meet the requirements of the terms of reference, unless the Agency has sufficient information to allow it to continue the assessment during such periods. The 365-day time period could also be paused at the written request of the proponent to, for example, accommodate time required to modify the project design or to align the environmental assessment with that of another jurisdiction. A period of suspension would not count towards the Agency’s time period for completion of the comprehensive study.
• The Agency would be required to report annually on its Web site on its performance vis-à-vis the Regulations to ensure accountability and transparency. This provision would ensure that interested parties may track the time within which the Agency is completing comprehensive studies.

There are no additional costs to government associated with the implementation of the proposed Regulations as existing resources will be used to meet the new regulatory requirements, conduct information sessions for staff, inform stakeholders, post notices and track the Agency’s performance. The benefit of the proposed Regulations, in concert with the time efficiencies gained through the legislative amendments, is a more timely, efficient, predictable and accountable comprehensive study process that may contribute to increasing industry confidence and fostering a positive investment climate in the Canadian economy.

Consultation

The Establishing Timelines for Comprehensive StudiesRegulations are being proposed to ensure that there is an accountable and transparent process in place for the conduct of comprehensive studies as soon as possible after the Agency assumes its new responsibilities as per the recent amendments to the Canadian Environmental Assessment Act.

Stakeholders have raised concerns regarding the length of the federal environmental assessment process for a number of years. During the five-year review of the Act in the early 2000s, one of the options considered for improving the timeliness, predictability and consistency of the federal environmental assessment process, was to develop timelines for comprehensive studies. Such an approach was widely supported by stakeholders, particularly by proponents, industry associations and provincial/territorial governments. It was thought that introducing timelines would increase predictability thus allowing for better planning and resource allocation as well as reducing negative business impacts.

Other stakeholders were either not opposed to timelines or expressed concerns that introducing mandatory timelines for comprehensive studies would have a negative impact on time allocated for public consultations, the quality of environmental assessment and the ability of staff to meet the timelines.

These proposed Regulations introduce overall mandatory timelines on the Agency for completing comprehensive studies but should not impact the public consultation process. The first opportunity for public input is immediately after posting a notice of commencement, and public input will be sought while the Agency is developing the terms of reference., Public input during the conduct of the environmental assessment would typically be sought while the proponent is obtaining all the necessary information for completing the environmental assessment, i.e. while the clock is paused. Finally, the public comment period on the comprehensive study report falls outside the period to which the timelines apply.

In terms of potential impacts on the quality of the environmental assessment, the timelines contained in these proposed Regulations are generous enough to allow the Agency sufficient time to conduct a quality environmental assessment but strict enough to ensure that the process does not take more time than is necessary. It is also important to understand that the bulk of the research and environmental studies that are essential to the environmental assessment will be undertaken while the 365-day timeline is suspended, thus having no impact on the quality of the data and research.

Regarding concerns about the ability of the staff to meet the timelines, the Agency has ensured that it is well structured and that it has the necessary human resources in place in order to be able to comply with these proposed Regulations. The Agency has also had the opportunity over the last two years, as part of the initiative to improve the regulatory regime for major resource projects, to undertake environmental assessments with established timelines.

The challenges associated with the slowness of the environmental assessment process were also highlighted in the External Advisory Committee on Smart Regulation’s 2004 report to the Government of Canada, Smart Regulation: A Regulatory Strategy for Canada. In that report, one of the key issues that arose through the Committee’s consultation with industry is that the federal environmental assessment process is too slow. In 2009, the Canadian Chamber of Commerce adopted a resolution on “the unification of the environmental assessment process” and called for a review of the Act to ensure efficient and transparent processing of federal environmental assessment as well as a greater ability to meet provincial timelines.

Environmental stakeholders have long argued that one federal agency should have greater control over the federal environmental assessment process. Recent amendments to the Canadian Environmental Assessment Act will achieve that objective in part, as most comprehensive studies will now be conducted by the Canadian Environmental Assessment Agency. In 2008, the Canadian Environmental Network published a paper in which it was predicted that “if an independent agency ran the environmental assessment process more consistency, certainty, and timeliness likely would result.” Generally, environmental stakeholders are not opposed to more timely assessments, particularly if the time savings are gained from introducing efficiencies during the administrative steps of the environmental assessment process, as long as the quality of the environmental assessment and opportunities for public consultation are not compromised.

Implementation, enforcement and service standards

There is no formal compliance or enforcement mechanism applicable to the Canadian Environmental Assessment Act or its regulations. However, a mandatory annual reporting requirement on the implementation of the Establishing Timelines for Comprehensive Studies Regulations is included in the proposed Regulations. This requirement would ensure that the Agency be publicly accountable for its performance in meeting the requirements of the proposed Regulations in a transparent fashion.

In terms of implementation, the Agency is already structurally organized in a way that will enable it to meet the requirements of the proposed Regulations. The Agency had to transform itself in the last few years in order to be able to take on new roles given to it for environmental assessments of major natural resource projects through the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects.

The Agency will communicate any changes in procedures to stakeholders using existing mechanisms, including through interdepartmental and intergovernmental committees, and posting relevant information on its Web site. Federal authorities across the country will, in many cases, remain the first point of contact for proponents. Once contacted by a proponent regarding a project that is likely to require a comprehensive study, a federal authority would refer the project to the appropriate regional office of the Canadian Environmental Assessment Agency who would then deal directly with the proponent of the project.

Contact

John D. Smith
Director
Legislative and Regulatory Affairs
Canadian Environmental Assessment Agency
Place Bell Canada, 22nd Floor
160 Elgin Street
Ottawa, Ontario
K1A 0H3
Telephone: 613-948-1942
Fax: 613-957-0897
Email: John.smith@ceaa-acee.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to paragraph 59(a) (see footnote a) of the Canadian Environmental Assessment Act (see footnote b), proposes to make the annexed Establishing Timelines for Comprehensive Studies Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Anik Génier, Manager, Regulations, Legislative and Regulatory Affairs, Canadian Environmental Assessment Agency, Place Bell Canada, 160 Elgin Street, 22nd floor, Ottawa, Ontario, K1A 0H3 (tel.: 613-957-0277; fax: 613-957-0897; email: anik.genier@ceaa-acee.gc.ca).

Ottawa, August 3, 2010

JURICA ČAPKUN
Assistant Clerk of the Privy Council

ESTABLISHING TIMELINES FOR COMPREHENSIVE STUDIES REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Act” means the Canadian Environmental Assessment Act. (Loi)

“terms of reference” means a document setting out the information that is required to conduct a comprehensive study. (cadre de référence)

APPLICATION

2. (1) These Regulations do not apply to projects for which one of the responsible authorities is the Canadian Nuclear Safety Commission established under section 8 of the Nuclear Safety and Control Act or the National Energy Board established under section 3 of the National Energy Board Act.

(2) The Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements do not apply to projects that are subject to these Regulations.

COMPREHENSIVE STUDY

3. (1) The Agency must decide, within 90 days after receipt of the information that is to be included in a project description and that is set out in the schedule, whether to commence a comprehensive study of the project under subsection 11.01(1) of the Act.

(2) On receipt of the information, the Agency must include a notice of the commencement of the 90-day period on its Internet site.

4. The Agency must provide the proponent with terms of reference after it includes the notice of commencement of an environmental assessment on its Internet site that is a part of the Registry as required under paragraph 55.1(2)(a) of the Act.

5. (1) If a comprehensive study is conducted, the Agency must publish a notice under section 22 of the Act within a period of 365 days that begins on the day on which the notice of commencement of an environmental assessment is included on its Internet site that is a part of the Registry.

(2) Despite subsection (1), the period is to be suspended in the following circumstances:

(a) while the proponent collects any information necessary to complete the requirements of the terms of reference, unless the Agency has sufficient information allowing it to continue the comprehensive study during this period; or

(b) during the period for which the proponent requests in writing that the comprehensive study be suspended.

REPORT

6. The Agency must include an annual report on the implementation of these Regulations on its Internet site.

COMING INTO FORCE

7. These Regulations come into force on the day on which they are registered.

SCHEDULE
(Subsection 3(1))

INFORMATION TO BE INCLUDED IN A PROJECT DESCRIPTION

GENERAL INFORMATION

1. Project’s name and proposed location.

2. Name and contact information of the proponent and a representative.

3. List of other legislative requirements with respect to environmental assessments that may be applicable to the project.

4. Description of consultations undertaken with other parties (including federal and provincial governments, Aboriginal groups, the Canadian public or foreign countries).

5. Other information of relevance to federal authorities and the environmental assessment, including Aboriginal groups’ issues and public concerns.

PROJECT INFORMATION

6. Description of the project’s context, rationale and objectives.

7. Description of any activities to be performed in relation to the project.

8. Dimensions of the project’s primary components, including any permanent or temporary structures.

9. Detailed description of the project’s location, including:

(a) geographic coordinates;

(b) site maps;

(c) the project’s geographic context and proximity to other projects or communities;

(d) the name, width and depth of any waterway affected by the project;

(e) the names and addresses of landowners whose property is adjacent to the project site; and

(f) a legal description of land and any authorization relating to a water lot.

10. Anticipated production capacity of natural resources and production processes to be used.

11. Waste disposal and emissions.

12. Sustainability features.

13. Description of phases and scheduling of the project’s construction, operation and decommissioning.

FEDERAL INVOLVEMENT

14. Expected funding for the project.

15. Land ownership or use by the federal government.

16. Regulatory requirements (list of permits, licences or other authorizations that may be required).

ENVIRONMENTAL EFFECTS

17. A description of components of the environment that are likely to be affected and a summary of potential environmental effects.

[33-1-o]

Footnote a
 S.C. 1994, c. 46, s. 5

Footnote b
 S.C. 1992, c. 37

NOTICE:
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