Environmental Assessment Projects Committee

Interim Approach for Determining Scope of Project for Major Development Proposals with Specific Regulatory Triggers under the Canadian Environmental Assessment Act

Background

The Cabinet Directive on Implementing the Canadian Environmental Assessment Act (November 2005) sets out a Policy for Determining an Appropriate Scope of Project for Environmental Assessments.

That policy provides a framework for determining the scope of project within the Canadian Environmental Assessment Act’s (the Act) overarching context of ensuring the careful and precautionary identification of potential adverse environmental effects and means of mitigating them prior to federal decisions that would allow a project to proceed. In doing so, the policy supports federal authorities in exercising their respective powers, duties and functions under the Act.

Section 3, Part II of the Directive, which is of particular relevance to this interim approach, states:

If components of the proposal other than the component directly related to the powers, duties or functions referred to in section 5 of the Act might cause adverse environmental effects on areas of federal jurisdiction, a scope of project determination that includes as much as possible these other components, so that the potential adverse environmental effects on areas of federal jurisdiction can be considered.

Purpose

The purpose of this interim approach is to provide guidance, for a specific category of development proposals, for applying the Cabinet Directive’s scoping policy. It is aimed at facilitating consistency and timeliness for a type of scoping decision that, historically, has tended to be difficult and time-consuming.

The interim approach includes structured processes for identifying components of a development proposal for inclusion in the project scope, obtaining the information required to support federal environmental assessment decisions, and ensuring implementation of mitigation measures and follow-up programs.

Application

As with the Cabinet Directive, this interim approach does not fetter the powers, duties, functions or discretion of federal authorities, the federal environmental assessment coordinator or the Canadian Environmental Assessment Agency. The interim approach sets out a framework for members of the Environmental Assessment Projects Committee (EAPC) to apply when determining the scope of project for any major development proposal with components that may require an environmental assessment (EA) under subsection 5(1)(d) of the Act. In other words, the interim approach is intended for major development proposals likely to have one or more of the following “regulatory triggers”:

• subsection 35(2) of the Fisheries Act;
• paragraph 5(1)(a) of the Navigable Waters Protection Act;
• subsection 7(1) of the Explosives Act; and/or
• subsection 127(1) of the Canadian Environmental Protection Act, 1999.

Major development proposals are generally considered to be proposals that may be subject to comprehensive study and those large scale projects subject to screening that trigger the EA requirements of more than one jurisdiction.

If responsible authorities (RAs) other than EAPC members are also involved in assessing the proposed development, agreement must be obtained from the other RAs in order to apply the interim approach.

The effectiveness of the interim approach will be assessed by EAPC after it has been applied to a range of development proposals for a period of not more than one year. Performance measures will be identified to determine whether the interim approach is contributing to the Cabinet Directive objective of a predictable, certain and timely environmental assessment process that produces high quality environmental assessments. Revisions or adjustments to strengthen the approach will be considered at that time. The interim approach may eventually be superseded by a comprehensive scoping policy.

Principles

The Canadian Environmental Assessment Act, as well as the courts in decisions relating to its application, gives RAs broad discretion in determining the scope of projects to be assessed.

The Cabinet Directive, consistent with the existence of these discretionary powers, provides a framework to ensure that project scoping decisions can be made in a manner that allows for the consideration of all environmental effects relating to matters within federal jurisdiction that may be associated with a development proposal.

A principles-based approach will be used to ensure that the decisions on the scope of project and subsequent environmental assessments advance the purposes of the Act – i.e., the careful and precautionary identification of potential adverse environmental effects and means of mitigating them prior to final decision making that would allow a project to proceed – and are consistent with federal jurisdiction as established in the Constitution of Canada and clarified through court decisions.

Given concurrent federal and provincial jurisdiction for the environmental assessment of most large scale projects, cooperation with other jurisdictions is required to meet the objective of ensuring, in as efficient a fashion as possible, that projects do not result in adverse environmental effects.

Approach

A scope of project determination developed under this interim approach will provide the basis for a single comprehensive study or screening in response to a development proposal. To the extent possible, this will be achieved through a single scope of project determination as agreed by all RAs.

At the earliest opportunity after a major development proposal comes to the attention of the federal government, a Project Committee will be established and chaired by the Federal Environmental Assessment Coordinator (FEAC) from the Agency, in order to discuss project scoping. The Project Committee will include representatives of all RAs likely to have a regulatory trigger covered by this approach (this reflects the “in until out” policy) and other federal entities likely to serve as expert Federal Authorities (FAs). The Project Committee will also engage, as early as possible, in gathering necessary information from the proponent and discussing cooperation with other jurisdictions.

Under this approach, the scope of project will include:

• any component of the development proposal directly related to a regulatory trigger(s) (trigger components); and
• any other components of the development proposal that should be included in the scope of the project in consideration of their potential to cause adverse environmental effects related to matters within federal jurisdiction (non-trigger components).

A trigger component can generally be described as the physical work or activity for which one or more regulatory approvals is/are required. It should usually be defined to include elements physically linked together; for instance, a bridge as opposed to only its pier footings.

Determination of which non-trigger components should be included in the project scope will be based on a balanced, risk-management approach and consideration of three criteria:

• the nature of the federal interests in question and potential environmental risk to them;
• the operational inter-connectedness between the non-trigger components in question and the trigger components; and
• the extent to which the potential adverse environmental effects related to matters within federal jurisdiction to be caused by the component will be considered and mitigated through other regulatory and environmental assessment processes.

The determination will also take into account any available information regarding public concern with respect to the potential adverse environmental effects of the additional project components related to matters within federal jurisdiction.

The determination will be made in a timely manner, to facilitate cooperation and coordination with environmental assessments undertaken by other jurisdictions.

Once the project scope is established, RAs and FAs will have primary responsibility for those components of a development proposal which they suggested for inclusion in the scope of project. This entails taking the lead on:

• assessing the likely environmental effects of those components;
• identifying mitigation measures to reduce those effects;
• drafting relevant text for inclusion in any report or written document, such as Scoping Document, EA Track Report, Comprehensive Study Report or Screening Report; and
• ensuring the implementation of appropriate mitigation and follow-up measures. For FAs, these measures will have been agreed to with the RA.

A written agreement among the parties will be established which outlines the roles and responsibilities of each RA and FA based on a standard template, modified as required by the particular facts associated with the assessment.

Where an FA has suggested the inclusion of a particular component of the development proposal in the scope of project and lacks its own regulatory instruments to ensure directly the implementation of mitigation measures and/or follow-up requirements, it may use any other approaches appropriate in the circumstances to achieve this goal, such as:

• having the mitigation measures and/or follow-up requirements included in provincial permits or authorizations and receiving monitoring reports from the province or proponent;
• entering into an agreement with the proponent, supported by a letter of credit or security bond, where appropriate, and receiving monitoring reports from the proponent; or
• having the mitigation measures and/or follow-up requirements included in RAs’ permits or authorizations and receiving monitoring reports from the RA or proponent.

Whichever option(s) is/are chosen, where an FA is taking the lead with respect to certain mitigation measures and follow-up requirements, RAs will provide appropriate support to FAs’ efforts in a manner consistent with the RAs’ obligation to ensure the implementation of mitigation measures and follow-up. An RA may, for example, include as a condition of its permitting the successful conclusion of an agreement between an FA and a proponent.

Federal Interest and Federal Jurisdiction

In some circumstances, the relationship between federal interest and federal jurisdiction may have a bearing on determining the scope of project and the scope of assessment. For the purpose of informing the implementation of this interim approach, federal jurisdiction should be used in its broadest sense, i.e. within a federal constitutional head of power. Federal interest should be used to refer to elements or activities that are expressly connected to that jurisdiction.

For example, if wetlands might be affected by a proposed development, the federal interest in wetlands would stem from impacts on the wetlands which may have a subsequent impact on migratory bird habitat and subsequently migratory birds, which pertain to federal jurisdiction.

Figure 1: Process for Reaching and Applying Scope of Project Determinations under the Canadian Environmental Assessment Act for Major Development Proposals with Regulatory Triggers

Figure 2: Process for Reaching and Applying Scope of Project Determinations under the Canadian Environmental Assessment Act for Major Projects with Regulatory Triggers