Vol. 143, No. 20 — September 30, 2009

Registration

SOR/2009-256 September 9, 2009

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Regulations Amending the Disposal at Sea Regulations

P.C. 2009-1527 September 9, 2009

Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on November 24, 2007, a copy of the proposed Regulations Amending the Disposal at Sea Regulations, substantially in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Regulations or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to paragraph 135(1)(g) of the Canadian Environmental Protection Act, 1999(see footnote c), hereby makes the annexed Regulations Amending the Disposal at Sea Regulations.

REGULATIONS AMENDING THE DISPOSAL AT SEA REGULATIONS

AMENDMENT

1. The Disposal at Sea Regulations (see footnote 1) are amended by adding the following after section 8:

AREAS OF THE SEA

8.1 For the purposes of paragraph 122(2)(e) of the Act, the specified areas of the sea adjacent to the territorial sea of Canada consist of the following waters:

(a) the waters of the North Arm of Fraser River bounded on the east by a line at the eastern tip of Mitchell Island from the south shore at the intersection of 123°04′00′′ west longitude and 49°12′10′′ north latitude to the north shore at the intersection of 123°04′00′′ west longitude and 49°12′23′′ north latitude;

(b) the waters of the main channel of the Fraser River downstream of the Alex Fraser Bridge through a line from the south shore of the channel at the intersection of 122°56′33′′ west longitude and 49°09′28′′ north latitude to the north shore of the channel at the intersection of 122°57′29′′ west longitude and 49°10′33′′ north latitude;

(c) the waters of the Northwest Miramichi River east of a line from the south shore at the intersection of 65°49′12′′ west longitude and 46°56′18′′ north latitude to the north shore at the intersection of 65°49′02′′ west longitude and 46°56′29′′ north latitude;

(d) the waters of the Southwest Miramichi River northeast of a line from the south shore at the intersection of 65°40′22′′ west longitude and 46°51′55′′ north latitude to the north shore at the intersection of 65°40′30′′ west longitude and 46°52′00′′ north latitude;

(e) the waters of the east channel of the Mackenzie River northeast of a line from the south shore at the intersection of 134°08′28′′ west longitude and 69°14′33′′ north latitude to the north shore at the intersection of 134°09′47′′ west longitude and 69°16′37′′ north latitude;

(f) the waters of the Mackenzie River and Beaufort Sea seaward of a line from the intersection of 134°48′18′′ west longitude and 69°28′03′′ north latitude, thence westward to the intersection of 135°24′14′′ west longitude and 69°23′36′′ north latitude, thence southwestward to the intersection of 135°50′17′′ west longitude and 69°05′32′′ north latitude, thence southeastward to the intersection of 135°13′55′′ west longitude and 68°43′39′′ north latitude, thence southwestward to the intersection of 135°24′04′′ west longitude and 68°40′34′′ north latitude; and

(g) the waters of Bras d’Or Lake, St. Peters Inlet, Great Bras d’Or, St. Patricks Channel, Whycocomagh Bay and St. Andrews Channel, in Nova Scotia.

COMING INTO FORCE

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

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Issue

Canada regulates disposal at sea under the authority of the Canadian Environmental Protection Act, 1999 (CEPA 1999). The application of the Act is limited to the “sea” which is defined in subsection 122(2) as including “the territorial sea of Canada” and “the internal waters of Canada, excluding all the rivers, lakes and other freshwater in Canada…”

While disposal at sea is regulated federally under CEPA 1999, similar activities in freshwater are generally subject to other federal, provincial, and territorial controls. For certain waterways there is uncertainty in applying the definition of the sea under CEPA 1999 as it involves identifying a specific geographic boundary between fresh water and the sea. This can cause uncertainty for Environment Canada and potential regulatees as to whether the disposal at sea provisions apply.

Objective

The objective of the Regulations Amending the Disposal at Sea Regulations (hereinafter referred to as the “Amendments”) is to specify four areas that are to be included in the definition of the sea in Part 7, Division 3, of CEPA 1999. This is achieved by expressly identifying geographic boundaries between freshwater and the sea in the Fraser, Mackenzie and Miramichi estuaries. In addition, the Amendments clarify that disposal activities in the Bras D’or Lakes, which contain brackish (moderately saline) water, fall under the authority of CEPA 1999.

Description and rationale

Description

The Amendments set freshwater-sea boundaries using the power in paragraph 135(1)(g) of the Act to specify certain areas of the sea to be included in the definition of “sea” in subsection 122(2) of the Act. These boundaries are set using a method based on the maximum intrusion of salinity into a body of water under high-tide, low-flow conditions. This method is scientifically and legally defensible, consistent with the statutory definition of the sea in CEPA 1999, and easily applied to the bodies of water in question, including brackish water. Boundaries are identified in four regions.

For the Fraser estuary in British Columbia, the Amendments establish two boundary lines: one in the North Arm at the eastern end of Mitchell Island; and one in the Main Arm bisecting Annacis Island downstream of the Alex Fraser Bridge.

For the Mackenzie estuary in the Northwest Territories, geographic characteristics of the region do not lend themselves to clear landmarks. Individual boundaries are set for each of the channels that make up the estuary as set in paragraphs 8.1(e) and (f) of the regulatory text.

For the Miramichi estuary in New Brunswick, the Amendments set two boundary lines: one in the North West Miramichi, downstream of Scott’s Pool Rapids; and one on the south west branch, downstream of the Red Bank Reservation.

The Amendments also clarify that the Bras d’Or Lakes are within the definition of “sea” in CEPA 1999, since they contain brackish water. The Lakes include Bras d’Or Lake, Great Bras d’Or, St. Peters Inlet, St. Patricks Channel, Whycocomagh Bay and St. Andrews Channel.

The Amendments come into force on the day on which they are registered.

Alternatives

Status Quo

Under the status quo, disposal activities in the Bras d’Or Lakes would continue to be considered as outside the authority of CEPA 1999, and uncertainty about the specific geographic boundaries in the Miramichi, Fraser, and Mackenzie estuaries would remain. In all of these areas, there would be a lack of expressly identified geographic boundaries for the application of CEPA 1999.

The current lack of clarity would have a number of impacts on a range of stakeholders. It would likely lead to uncertainty in the dredging and disposal budgeting process for regulatees, it may lead to legal uncertainty in Environment Canada enforcement actions, and there would be a lack of parity in the application of CEPA 1999 on Canada’s three coasts. The status quo would also not address concerns raised by residents living in the vicinity of the Bras d’Or Lakes regarding oversight of disposal activities. Hence, the status quo was rejected.

Amending the Regulations

The Amendments establish boundaries to expressly identify the area in which disposal at sea provisions apply in the Fraser, Mackenzie and Miramichi estuaries, and in the Bras d’Or Lakes. Improved clarity will benefit regulatees through reduced budgeting uncertainty, facilitate the prosecution of illegal disposals at sea, and respond to concerns of the Canadian public. Given these advantages, the Amendments were selected as the best alternative.

Benefits and costs

The distribution of benefits and costs of the Amendments reflect the current activity profiles of the relevant bodies of water.

Fraser estuary: Dredging in the Fraser estuary is characterized as active. The area of application of the disposal at sea provisions of CEPA 1999 will not change under the Amendments, as the existing area of application ends at the maximum extent of salinity in the estuary.

Mackenzie estuary: At this time, there are limited activities in the boundary area. Future economic development in the vicinity of the Mackenzie estuary is expected to lead to increased disposal activities from harbour creation and seabed preparation.

Miramichi estuary: Although there have been disposal activities in the past, currently there are no known disposal activities in the area, and there are no activities expected in the near future.

Bras d’Or Lakes: Local residents have expressed concerns regarding uncontrolled disposals and have called for improved oversight of the limited disposal activities in the lakes.

Benefits

The primary benefit of the Amendments is to reduce uncertainty by the establishment of scientifically and legally defensible boundary lines between the sea and freshwater in the four areas.

This exercise will allow stakeholders to easily identify who has authority over disposal activities in a specific location, and whose rules and fees apply. This in turn will allow stakeholders to more accurately predict the costs of dredging and disposal in these locations; and to incorporate these costs, with reduced uncertainty, into their dredging and disposal budgeting.

The Amendments remove uncertainty with respect to Environment Canada enforcement activities in the four water bodies. Authority over disposal at sea is clear, scientifically and legally defined in each area.

For communities in the vicinity of the Bras d’Or Lakes, the Amendments confirm that any future disposal activities in the lakes must be conducted in compliance with CEPA 1999 and the Disposal at Sea Regulations.

Costs

The Amendments are not expected to impact any current disposal activities. As a result, the overall economic impact on industry is expected to be negligible.

Future economic development in the vicinity of the Mackenzie estuary is expected to result in some new disposal activities in the area. Uncertainty surrounding the exact volume, content and location of these activities constrains a quantification of incremental costs associated with the Amendments. Notwithstanding this uncertainty, it is not expected that any of these incremental costs will have an impact on economic development in the region.

Since the Amendments are not expected to result in an increase to the administrative burden of Environment Canada’s Disposal at Sea Program, the incremental cost to government is expected to be low. Should there be an incremental increase in the volume of disposed material controlled under CEPA 1999, the costs to the program will be partially recovered through fees, and the overall cost to Government would remain low.

Net benefits

While benefits and costs of the Amendments were not readily quantifiable, it is expected that benefits would exceed the costs.

Consultation

A preliminary discussion paper was released to a limited number of stakeholders in the summer of 2002. The response to this preliminary paper was used in the development of the “Public Consultation Paper on Boundaries of the Sea for the Ocean Disposal Program,” released in December 2002. This consultation paper was released to a group of stakeholders that included governments, the regulated community, NGOs and aboriginal groups.

Following the release of the consultation paper, public meetings were held nation-wide in January and February 2003. Venues included Vancouver, Calgary, Inuvik, Quebec City, Halifax, St. John’s, Sydney, Miramichi, Moncton and Ottawa. Additional comment was subsequently received from the Pacific & Yukon region, Quebec region and Atlantic region.

There was broad agreement among stakeholders with the purpose of the proposed Amendments and the chosen approach. Few concerns were expressed by the provinces and territories. One province has expressed concerns regarding increases in the use of alternatives to disposal at sea — specifically land disposal — resulting from the proposed Amendments. The same province indicated that there may be conflict between the proposed boundaries and provincial coastal policy. The proposed Amendments are not expected to have an impact on this policy, and Environment Canada continues to work with the province to avoid any potential for conflict.

One regulatee has expressed concerns regarding the magnitude of fees currently paid as a result of conducting their disposal activities “at sea,” as it is currently identified in the Fraser estuary. The proposed Amendments would not impact the fees charged by the Disposal at Sea Program, and would not result in an incremental increase in fees paid by this regulatee. Environment Canada will continue to work with this regulatee in other areas to address these concerns. A majority of regulatees were in agreement with the use of the maximum extent of salinity at low-flow, high tide as the preferred method to define the boundaries between fresh water and marine waters.

Consultation following pre-publication of the Amendments in the Canada Gazette, Part I

The proposed Amendments were published in the Canada Gazette, Part I on November 24th, 2007 for a 60-day public comment period. No comments were received.

Implementation, enforcement and service standards

The Amendments come into force on the day on which they are registered. They do not result in the implementation of any new programs or activities under the Disposal at Sea Program. As the regulatee base is well known and most are regular permit holders, compliance promotion will consist of one-to-one communication between regulatees and Environment Canada regional staff. In the four areas identified above, upon coming into force, Environment Canada will issue information bulletins, and use local and national media to communicate the boundary lines to stakeholders who may not be current regulatees of the Disposal at Sea Program. The Amendments would not alter the manner in which the Regulations are enforced. Environment Canada is in the process of reviewing and developing improved service standards for existing Disposal at Sea Program elements. The Amendments would not impact those standards or the delivery of services under the Program.

Contacts

Linda Porebski
Chief
Marine Protection Programs
Environmental Assessment and Marine Programs Division
Environmental Stewardship Branch
Environment Canada
Gatineau, Quebec
Telephone: 819-953-4341
Fax: 819-953-0913
Email: linda.porebski@ec.gc.ca

Markes Cormier
Senior Economist
Regulatory Analysis and Instrument Choice Division
Strategic Policy Branch
Environment Canada
Gatineau, Quebec
Telephone: 819-953-5236
Fax: 819-997-2769
Email: markes.cormier@ec.gc.ca

Footnote a
S.C. 2004, c. 15, s. 31

Footnote b
S.C. 1999, c. 33

Footnote c
S.C. 1999, c. 33

Footnote 1
SOR/2001-275

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