Vol. 139, No. 51 — December 17, 2005

Exclusion List Regulations, 2005

Statutory authority

Canadian Environmental Assessment Act

Sponsoring agency

Canadian Environmental Assessment Agency

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Canadian Environmental Assessment Act (the Act) requires federal authorities to subject certain projects to environmental assessments (EAs) before initiating, funding, granting land, or issuing regulatory approvals for them. Four key regulations determine the Act's application: the Inclusion List Regulations, the Exclusion List Regulations, the Law List Regulations, and the Comprehensive Study List Regulations. This Regulatory Impact Analysis Statement describes a package of amendments to the Exclusion List Regulations which include additions, deletions and modifications to the Regulations.

The Exclusion List Regulations specify projects involving physical works with insignificant environmental effects that are exempt from EA under the Act. The legal authority to make the Exclusion List Regulations is found in subparagraph 59(c)(ii) of the Act.

In the years since the Act and the regulations came into force in 1995, and particularly during the review of the first five years' operations under the Act, it has become evident that the Exclusion List Regulations have not been meeting their full potential. It is apparent that hundreds of EAs are still required to be done for projects that cause little or no effect on the environment. This is an unnecessary and undesirable drain on the limited resources available to departments and agencies, to conduct assessments. The solution to this problem is to identify additional projects that have insignificant environmental effects and add them to the Exclusion List Regulations.

This amendment package includes 21 additions to the Exclusion List Regulations, as well as 36 modifications to existing provisions. The additions and modifications clarify and expand the exemptions from EA allowed under the Regulations. All new exemption provisions have been based on determinations of insignificant environmental effects. Also, the provisions relating to the General category of projects (Part I of Schedule 1) have been rearranged to provide a more logical order, in which similar types of projects are located together. The current Regulations will be repealed and replaced by these amended Regulations.

At the end of this Regulatory Impact Analysis Statement is a table of concordance (Appendix) that relates the number of each section of the proposed new Regulations with the number of the corresponding section of the existing Regulations and states the purpose of the amendment.

Environmental assessment exemptions for projects involving buildings provide an example of new and amended provisions of the Regulations. The current Regulations provide exemptions for construction or installation of any building having a footprint less than 100 m² and height less than 5 m, regardless of the location, if standard conditions for protection of water bodies apply. The amended Regulations would retain those provisions and add new ones. First, they would increase the footprint limit to 500 m² for buildings to be used exclusively for specific purposes listed in subsection 6(2), for example, residential accommodation, and would eliminate the height limit.

In addition, the Regulations would exempt many more building projects by introducing the concept of "serviced land." Serviced land would be defined as land already equipped with on-site pipeline facilities for water supply and for sewage removal and disposal by way of a centralized municipal or community sewage system. This is a convenient and precise way of identifying land that has been designated by a local authority as ready for industrial development. There is a clear implication that water supply and sewage disposal for any buildings located on the land will be provided off the building site. Any specified project involving a building of any size, if used only for purposes listed in subsection 6(2), would qualify for EA exemption if the project were located on serviced land.

Similarly, projects involving pedestrian walkways, vehicle access roads and parking lots—all of which are commonly associated with buildings—would qualify for broader exemptions from EA on the basis of their size and their location on serviced land. In all of these cases, conditions to ensure protection of water bodies would continue to be imposed.

Alternatives

The only alternative to amending the Regulations to increase their scope of application is to leave them in their current form. Doing so would perpetuate the present situation whereby many projects having insignificant environmental effects are being subjected needlessly to environmental assessments. That alternative was, therefore, rejected.

Benefits and costs

The benefits and costs associated with the application of the original Exclusion List Regulations were presented in the Regulatory Impact Analysis Statement (RIAS) that accompanied the publication of the four key regulations made under the Act in October 1994. This RIAS focuses on the benefits and costs expected to result from the amendments included in the present proposal.

(i) Efficiency and environmental protection benefits

This amendment package will clarify and broaden the application of the Regulations, resulting in efficiency gains for the federal departments and agencies that implement the Act. The amendments will ensure that fewer projects with no potential to cause significant environmental effects will be assessed. Therefore, resources can be focused on projects having potentially significant effects. This will result in a net gain in environmental protection.

(ii) Reduction in the number of assessments

The main purpose of this review of the Exclusion List Regulations was to identify additional provisions that, when applied, will sharply reduce the annual number of unnecessary screenings and thereby redirect EA resources to projects whose potential to cause significant environmental effects warrants the use of those resources. In discussing possible new provisions with client departments and agencies, the Agency and its consultants attempted to estimate the annual number of screenings that will be eliminated by each new category of excluded projects. In the case of certain departments and certain categories of projects, sufficient data were available on which to base such estimates. The following are predictions of annual reductions in the numbers of screenings for selected types of projects:

•  buildings, fences and other associated facilities — 200

•  water/navigation-related projects — 70

•  leases within national park communities — 60

•  fish-counting fences — 50

•  livestock fences and other agricultural projects — 200

•  pipeline-related ancillary projects — 50

•  road widening projects — 30

•  continuing operations of physical works — 20

•  railway crossings — 10

•  above-ground petroleum storage tanks — 10

The total of the foregoing list (700) represents only a sample of EA records and is almost certainly an under-estimate of the annual number of screenings that will be eliminated by the proposed amendments. This is especially true of the first category—buildings—as many departments are involved, in a variety of ways, in authorizing or assisting projects involving construction of new buildings or the modification of existing ones. While these figures reflect the best efforts of the affected federal departments and agencies to predict the effects of the amended Regulations, it is sometimes difficult to determine how many past EAs would have been excluded under the revised criteria now being proposed.

Nevertheless, one can predict confidently that the new and modified provisions of the amended Exclusion List Regulations will substantially reduce the occurrence of unnecessary screenings and redirect EA resources to projects that truly deserve to be assessed.

The reduction in screenings will result in the elimination of certain EA costs now being incurred by responsible federal authorities. No comprehensive information on those costs is available to the Agency, as the federal EA process operates on the principle of self-directed assessment whereby the responsible authorities must ensure that assessments are conducted where required, and those authorities are not obliged to report the cost of any particular assessment.

(iii) Impacts on the private sector

In the case of projects that originate in the private sector, responsible federal authorities are authorized to delegate the environmental assessment to the proponent at his expense. After the amended Exclusion List Regulations come into force, some of the EA costs currently being passed on to private-sector proponents will be eliminated.

(iv) Strategic environmental assessment

In preparing this RIAS, the Agency has reviewed the findings of the RIAS that accompanied the original version of the Regulations by applying the principles set out in the Guidelines for Implementing the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, published by the Agency. The latter process, commonly known as strategic environmental assessment (SEA), considers the scope and nature of the likely environmental effects of the proposal, the need for mitigation to reduce or eliminate adverse environmental effects, and the likely importance of any adverse effects. The results of the SEA of the current Exclusion List Regulations and the proposed amendments are presented under five headings, as follows:

(a) Outcomes. The direct outcome of the Exclusion List Regulations is that environmental assessments of projects known to have insignificant environmental effects are avoided, with consequent savings in time and in human and monetary resources.

The indirect outcomes are

These outcomes will be enhanced by the proposed amendments, through further reduction in the number of assessments.

(b) Interaction with the environment. Application of the current Regulations per se does not involve any change in the interaction between projects and the environment. The Regulations simply remove the need for environmental assessment of prescribed projects. As those projects have been demonstrated to have only insignificant environmental effects, any assessments of those projects that would be done in the absence of the Regulations would not result in any changes to the projects or to their interaction with the environment. Similarly, the new exclusions created by amending the Regulations will also not involve any changes in the interaction between projects and the environment.

(c) Scope and nature of the environmental interaction. As noted in (b), no changes in interaction between projects and the environment are or would be caused by the application of the current or amended Regulations.

(d) Mitigation and enhancement of environmental effects. Since there would be no change in the interaction between projects and the environment as a result of amending the Regulations, there would be no significant environmental effects caused by the amendments and, therefore, no need for mitigation or enhancement.

(e) Overall potential environmental effect of the proposed amendments. The overall effect of amending the Regulations to eliminate unnecessary assessments would be to redirect EA resources where they are most needed. In some cases, that may result in EAs that are more thorough and more accurate, and project decisions that are better informed. The environmental effects should, therefore, be generally positive.

(v) Overall benefits

The amendments package will increase efficiency in the implementation of the Act by federal authorities. The amendments are not likely to increase or reduce departments' EA workload, however, as the available resources will likely be redirected to necessary assessments. No additional resources will be required.

Consultation

The amendments package has been established following extensive consultations over the past several years with those parties who will be most directly affected, that is, the federal departments and agencies that must ensure that EAs are conducted when required by the Act. Also, the multi-stakeholder Regulatory Advisory Committee (RAC) was involved directly in developing the amendments. A RAC subcommittee examined an early draft and prepared a report including 36 recommendations. Of those recommendations, 30 have been accepted and incorporated into the current draft of the new version of the Exclusion List Regulations.

Compliance and enforcement

Departments and agencies of the federal government are individually responsible for ensuring that they comply with the Act and regulations.

The Agency assists departments and agencies to comply with the Act and regulations through the issuance of guidance and the provision of training. It also leads a quality assurance program for assessments conducted under the Act, which may provide departments and agencies with information relevant to compliance with the Exclusion List Regulations, 2005.

Contact

John Smith, Director, Legislative and Regulatory Affairs, Canadian Environmental Assessment Agency, 160 Elgin Street, 22nd Floor, Ottawa, Ontario K1A 0H3, (613) 948-1942 (telephone), (613) 957-0897 (fax).

APPENDIX

to the Regulatory Impact Analysis Statement for Proposed Amendments to the Exclusion List Regulations Under the Canadian Environmental Assessment Act

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subparagraph 59(c)(ii) (see footnote a) of the Canadian Environmental Assessment Act (see footnote b), proposes to make the annexed Exclusion List Regulations, 2005.

Interested persons may make representations with respect to the proposed Regulations within 45 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 John D. Smith, Director Legislative and Regulatory Affairs, Canadian Environmental Assessment Agency, 160 Elgin Street, 22nd Floor, Ottawa, Ontario K1A 0H3 (tel: (613) 948-1942; fax: (613) 957-0897; E-mail: john.smith@ceaa-acee.gc. ca).

Ottawa, November 28, 2005

DIANE LABELLE
Acting Assistant Clerk of the Privy Council

EXCLUSION LIST REGULATIONS, 2005

INTERPRETATION

1. (1) The following definitions apply in these Regulations.

"Act" means the Canadian Environmental Assessment Act. (Loi)

"building" means a roofed physical work. (bâtiment)

"Class II nuclear facility" has the same meaning as in section 1 of the Class II Nuclear Facilities and Prescribed Equipment Regulations. (installation nucléaire de catégorie II)

"Class II prescribed equipment" has the same meaning as in section 1 of the Class II Nuclear Facilities and Prescribed Equipment Regulations. (équipement réglementé de catégorie II)

"dugout" means an excavation to hold water for consumption by livestock. (étang-réservoir)

"essential systems" means the systems and equipment essential to the operation of a physical work including electrical, heating, fire-prevention, plumbing or security systems and equipment. It does not include systems or equipment that produce goods or energy primarily for any purpose other than the operation of the physical work. (système essentiel)

"expansion" means an increase in the exterior dimensions or the production capacity of a physical work. (agrandissement)

"footprint" means the area of land occupied by a building or other structure at ground level. (superficie)

"heritage structure" means a building or other structure that is marked or otherwise commemorated under paragraph 3(a) of the Historic Sites and Monuments Act. (structure du patrimoine)

"historic canal" has the same meaning as in section 2 of the Historic Canals Regulations and includes any federal lands appertaining or incident to a historic canal. (canal historique)

"hook-up" means a structure or line that connects a building to a main gas, oil, sewer, water, electrical transmission or telecommunication line. (raccordement)

"international electrical transmission line" means an electrical transmission line constructed or operated for the purpose of transmitting electricity from a place in Canada to a place outside Canada or to a place in Canada from a place outside Canada. (ligne internationale de transport d'électricité)

"irrigation system" means any of the following that is used for irrigating agricultural land:

(a) a buried pipeline;

(b) a pipe;

(c) a pump;

(d) a pump house;

(e) a reservoir;

(f) a drain; or

(g) a canal lined with asphalt, wood, concrete or other material. (système d'irrigation)

"modification" means an alteration to a physical work that does not alter the purpose or function of the work. It does not include an expansion or a relocation. (modification)

"national historic site" means a place that is marked or otherwise commemorated under paragraph 3(a) of the Historic Sites and Monuments Act and is under the administration of the Parks Canada Agency. (lieu historique national)

"national park" means a park named and described in Schedule 1 to the Canada National Parks Act, or a park established pursuant to a federal-provincial agreement that is under the responsibility of the Minister of the Environment. (parc national)

"nuclear facility" has the same meaning as in section 2 of the Nuclear Safety and Control Act. (installation nucléaire)

"nuclear substance" has the same meaning as in section 2 of the Nuclear Safety and Control Act. (substance nucléaire)

"oil and gas pipeline" means a pipeline that is used, or is intended to be used, for the transmission of hydrocarbons alone or with any other commodity. (pipeline d'hydrocarbures)

"park reserve" means a national park reserve of Canada named and described in Schedule 2 to the Canada National Parks Act or a reserve established under a federal-provincial agreement that is under the responsibility of the Minister of the Environment. (réserve)

"pest control product" has the same meaning as the expression "control product" in section 2 of the Pest Control Products Act. (produits antiparasitaires)

"polluting substance" means a substance that, if added to a water body, is likely to degrade or alter or form part of a process of degradation or alteration of the physical, chemical or biological conditions of the water body to an extent that is detrimental to its use by plants, animals and human beings. (substance polluante)

"radiation device" has the same meaning as in section 1 of the Nuclear Substances and Radiation Devices Regulations. (appareil à rayonnement)

"sealed source" has the same meaning as in section 1 of the Nuclear Substances and Radiation Devices Regulations. (source scellée)

"serviced land" means land that is equipped with on-site pipeline facilities for water supply and for sewage and storm water disposal by way of a centralized municipal or community sewer and water system. (terrain viabilisé)

"subcritical nuclear assembly" means an assembly of fissile material, moderators and reflectors that is not designed to achieve a self-sustaining nuclear chain reaction. (assemblage nucléaire non divergent)

"water body" includes a canal, a reservoir, an ocean, a river and its tributaries and a wetland, up to the annual high-water mark, but does not include a sewage or waste treatment lagoon, a mine tailings pond, an artificial irrigation pond, a dugout or a ditch that does not contain fish habitat as defined in subsection 34(1) of the Fisheries Act. (plan d'eau)

"wetland" means a swamp, marsh, bog, fen or other land that is covered by shallow water seasonally or permanently, including land where the water table is located at or close to the surface. (terres humides)

(2) For greater certainty, a reference to any physical work includes a reference to its essential systems.

GENERAL

2. The projects and classes of projects that are set out in Schedule 1 and to be carried out in places other than a national park, park reserve, national historic site or historic canal are exempted from the requirement to conduct an assessment under the Act.

3. The projects and classes of projects that are set out in Schedule 2 and to be carried out in a national park, park reserve or national historic site are exempted from the requirement to conduct an assessment under the Act.

4. The projects and classes of projects that are set out in Schedule 2 or 3 and to be carried out in a historic canal are exempted from the requirement to conduct an assessment under the Act.

REPEAL

5. The Exclusion List Regulations (see footnote 1) are repealed.

COMING INTO FORCE

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

SCHEDULE 1
(Section 2)

EXCLUSION LIST FOR PLACES OTHER THAN NATIONAL PARKS, PARK RESERVES, NATIONAL HISTORIC SITES OR HISTORIC CANALS

PART 1

GENERAL PROJECTS

1. The proposed maintenance or repair of a physical work.

2. The proposed resumption or continuation of the operation of a physical work the operation of which is otherwise exempted under these Regulations.

3. The proposed resumption of the operation of a physical work, the operation of which is not otherwise exempted under these Regulations if

(a) the operation is the same as an operation of the physical work for which an environmental assessment has been conducted under either the Act or the Environmental Assessment Review Process Guidelines Order;

(b) as a result of the assessment, the operation was determined to be unlikely to cause significant adverse environmental effects, taking into account the implementation of mitigation measures, if any; and

(c) the mitigation measures and follow-up program, if any, have been substantially implemented.

4. (1) The proposed continued operation or continued decommissioning of a physical work, the operation or decommissioning of which is not otherwise exempted under these Regulations, if

(a) the continued operation or decommissioning is the same as the current operation or decommissioning and there is no interruption between the current and proposed operation or decommissioning;

(b) a federal authority or an entity referred to in sections 8 to 10 of the Act, in conjunction with its exercise or performance of a power, duty or function that enabled the current operation or decommissioning to be carried out, determined the current operation or decommissioning to be unlikely to cause significant adverse environmental effects, taking into account the implementation of any mitigation measures; and

(c) the mitigation measures and follow-up program, if any, have been substantially implemented.

(2) For the purpose of paragraph (1)(a), a change of operator does not in itself mean that the proposed continued operation or decommissioning is different from the current operation or decommissioning.

5. The proposed construction, installation, operation, expansion, modification or decommissioning of a physical work that is not otherwise referred to in this Schedule, if the project

(a) does not result in a physical work with a footprint greater than 25 m²;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

6. (1) The proposed construction, installation, operation, expansion or modification of a building to be used exclusively for one or more of the purposes set out in subsection (2) if the project

(a) is to be carried out on

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

(2) The following uses for buildings are set out for the purpose of subsection (1):

(a) providing residential, hotel, institutional or other accommodations;

(b) providing offices, meeting rooms and related facilities;

(c) providing retail sales facilities;

(d) providing medical facilities and services;

(e) providing educational or informational facilities and services;

(f) providing recreational facilities and services;

(g) providing restaurant and food take-out services;

(h) presenting artistic, cultural, sporting and other community-related events; and

(i) storing any article or substance that is not hazardous to human beings or the environment.

7. The proposed construction, installation, operation or modification of a building, other than a building to be used exclusively for one or more of the purposes set out in subsection 6(2), if

(a) the construction or installation does not result in a building with a footprint greater than 100 m² or a height greater than 5 m;

(b) the project is not to be carried out within 30 m of a water body; and

(c) the project does not involve the likely release of a polluting substance into a water body.

8. The proposed expansion of a building, other than a building to be used exclusively for one or more of the purposes set out in subsection 6(2), if the project

(a) results in a building with a footprint that does not exceed the greater of 100 m² and 110% of the size of its footprint on the day on which these Regulations come into force, or, if the building does not exist on that day, the day of completion of its original construction;

(b) results in a building with a height that does not exceed the greater of 5 m and 110% of its height on the day on which these Regulations come into force, or, if the building does not exist on that day, the day of completion of its original construction;

(c) is not to be carried out within 30 m of a water body; and

(d) does not involve the likely release of a polluting substance into a water body.

9. The proposed decommissioning of a building with a footprint of less than 1000 m² if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

10. The proposed demolition of building with a floor area of less than 1000 m² if the project

(a) is not to be carried out within 30 m of another building;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

11. The proposed operation of a nursing station or health centre having a floor area of less than 1000 m², or a treatment centre having a floor area of less than 2000 m², if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

12. The proposed construction, installation, expansion or modification of a sidewalk, a boardwalk, a path, a pedestrian ramp or an access road if the project

(a) is to be carried out

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

13. The proposed construction, expansion or modification of a parking lot if the project

(a) is to be carried out

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

14. The proposed construction, installation, operation, expansion, modification or removal of a fence that does not prevent the passage of wild animals if the project

(a) is not to be carried out within 3 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

15. The proposed construction, installation, expansion, modification, removal or replacement of a fence that prevents the passage of wild animals if the project

(a) is to be carried out entirely within 30 m of a physical work;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

16. The proposed expansion or modification of a fence if the project

(a) results in a fence with a length or height that does not exceed 135% of its length or height on the day on which these Regulations come into force, or, if the fence does not exist on that day, the day of completion of its original construction;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

17. The proposed construction, installation, operation, expansion, modification, decommissioning, abandonment or removal of a hydrant or hook-up if

(a) the hydrant or hook-up is part of a farm or municipal system of distribution; and

(b) the project does not involve the crossing of a water body, other than an aerial crossing by a telecommunication or electrical transmission line.

18. The proposed construction, installation, operation, expansion, modification or removal of a sign if the project does not involve the likely release of a polluting substance into a water body.

19. The proposed construction, installation, operation, expansion, modification or decommissioning of an environmental scientific data collection instrument, including its housing and enclosure, if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

20. The proposed construction, installation, operation, expansion or modification of a temporary exhibition structure inside, or affixed to the exterior of, a building.

21. The proposed construction, installation, operation, expansion or modification of a radiocommunication antenna and its supporting structure

(a) if the project does not involve the placement of the antenna or its supporting structures in or on a water body;

(b) if

(c) if the project does not involve the likely release of a polluting substance into a water body.

22. The proposed construction, installation, operation, expansion, modification or removal of a temporary field camp used for scientific or technical research, or for reforestation, if

(a) the temporary field camp will be in use for fewer than 200 person-days; and

(b) the project

23. The proposed construction, installation, modification or removal of a structure intended to house wild animals if

(a) the structure has a footprint that is less than 5 m²;

(b) the structure does not house species raised for commercial purposes;

(c) the project does not involve the use of vehicles or heavy machinery within 30 m of a water body; and

(d) the project does not involve the likely release of a polluting substance into a water body.

24. The proposed installation, operation, expansion, modification, removal, replacement or decommissioning of an aboveground storage tank system to be used for storing petroleum products or allied petroleum products if the project

(a) results in a system with a total capacity that does not exceed 4000 L;

(b) is conducted in accordance with the Technical Guidelines for Aboveground Storage Tank Systems Containing Petroleum Products (P.C. 1996-1233) made under the Canadian Environmental Protection Act and dated August 7, 1996, as amended from time to time;

(c) is not to be carried out within 30 m of a water body; and

(d) does not involve the likely release of a polluting substance into a water body.

25. The proposed construction, installation or modification of a Canada-United States international boundary monument.

26. The proposed installation and operation of additional equipment in a factory that produces sporting ammunition, or bulk explosives based on ammonium nitrate, sodium nitrate or calcium nitrate, or the proposed modification of any equipment in the factory, if the project

(a) results in the factory having a production capacity that does not exceed 120% of its production capacity on the day on which these Regulations come into force, or, if it does not exist on that day, the day on which the operation of the factory commences;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

PART 2

AGRICULTURE

27. The proposed construction, installation, operation, expansion or modification of a building located on agricultural land if

(a) the building is essential to the practice of farming and is not to be used to store a polluting substance;

(b) the project is to be carried out on

(c) the project is not to be carried out within 30 m of a water body; and

(d) the project does not involve the likely release of a polluting substance into a water body.

28. The proposed construction, installation, operation, expansion, modification or decommissioning of a domestic or farm water supply system or dugout on agricultural land if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

29. The proposed construction, installation, operation, expansion or decommissioning of a domestic or farm irrigation system on agricultural land if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

30. The proposed modification of a domestic or farm irrigation system on agricultural land if the project does not involve the likely release of a polluting substance into a water body.

31. The proposed construction, operation, modification, expansion or decommissioning of a drainage structure on agricultural land, other than a structure that drains into a water body, if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

PART 3

ELECTRICAL ENERGY

32. The proposed construction or installation of an electrical transmission line with a voltage of not more than 130 kV, other than an international electrical transmission line, if the project

(a) is to be carried out alongside a road, a railway line, an electrical transmission line, a telecommunication line or any other linear physical work;

(b) does not involve the placement in a water body of the supporting structures for the electrical transmission line; and

(c) does not involve the likely release of a polluting substance into a water body.

33. The proposed operation, expansion or modification of a telecommunication or an electrical transmission line, other than an international electrical transmission line, if the project

(a) results in a line that does not exceed 110% of its length on the day on which these Regulations come into force, or, if the line did not exist on that day, on the day of completion of its original construction;

(b) is to be carried out alongside a road, a railway line, an electrical transmission line, a telecommunication line or any other linear physical work;

(c) does not involve the placement in a water body of the supporting structures for the telecommunication or electrical transmission line; and

(d) does not involve the likely release of a polluting substance into a water body.

34. The proposed construction, installation, operation, expansion or modification of a switching station that is associated with an electrical transmission line, other than an international transmission line, having a voltage of not more than 130 kV, or with a telecommunication line, if the project

(a) is to be carried out adjacent to the telecommunication or electrical transmission line;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

35. The proposed construction, installation, operation, expansion or modification of an international electrical transmission line with a voltage of not more than 50 kV if the project

(a) is to be carried out alongside a road, a railway line, an electrical transmission line, a telecommunication line or any other linear physical work;

(b) does not result in more than 4 km of the line extending outside Canada;

(c) does not involve the placement of the supporting structures for the line within 30 m of a water body; and

(d) does not involve the likely release of a polluting substance into a water body.

36. The proposed operation, expansion or modification of a wind turbine farm if the project

(a) results in the farm having an installed capacity that does not exceed 120% of its capacity on the day on which these Regulations come into force, or, if the farm does not exist on that day, the day of completion of its original construction;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

PART 4

NUCLEAR ENERGY

37. The proposed construction, installation, operation, expansion, modification, decommissioning or abandonment of

(a) a subcritical nuclear assembly;

(b) Class II prescribed equipment;

(c) a radiation device affixed to a nuclear facility; or

(d) a Class II nuclear facility other than a Class II nuclear facility that employs a pool-type irradiator in which the form and composition of the nuclear substance within the sealed source is such that the nuclear substance would be readily dispersed in air or easily dissolved in water if the source encapsulation were ruptured.

38. The proposed construction, installation, operation, expansion, modification, decommissioning or abandonment of a physical work for the processing of nuclear substances or the manufacture of sealed sources, if the activity of the annual throughput of nuclear substances is less than 1 PBq.

39. The proposed construction, installation, operation, modification, decommissioning or abandonment of monitoring, safety or security equipment that is affixed or adjacent to a nuclear facility.

40. The proposed modification of a nuclear facility that is the same as a modification of that nuclear facility for which an environmental assessment has been conducted under either the Act or the Environmental Assessment Review Process Guidelines Order if, as a result of the assessment,

(a) the modification was determined to be unlikely to cause significant adverse environmental effects, taking into account the implementation of mitigation measures, if any; and

(b) the mitigation measures and follow-up program, if any, have been substantially implemented.

41. The proposed expansion or modification of an essential system within a nuclear facility if the project

(a) is not to be carried out within 30 m of a water body; and

(b) does not involve the likely release of a polluting substance into a water body.

PART 5

PIPELINES

42. (1) In relation to an onshore oil and gas pipeline or other onshore commodity pipeline, the proposed installation, operation or modification of any of the following components:

(a) a connection;

(b) piping;

(c) cathodic protection systems, including rectifiers;

(d) valves, including valve vaults and pressure transmitters;

(e) compressor and pump station components, including compressors, pumps, motors, silencers, scrubbers, gas seals, system boilers, scraper traps, switch gear, transformers and uninterruptible power supply;

(f) a storage tank located within a tank farm if the project is conducted in accordance with the Technical Guidelines for Aboveground Storage Tank Systems Containing Petroleum Products (P.C. 1996-1233) made under the Canadian Environmental Protection Act and dated August 7, 1996, as amended from time to time;

(g) storage tank components, including mixers and ladders;

(h) metering and regulating facilities;

(i) quality measurement systems, including analysers for water or basic sediment, densitometers, calorimeters, in-line viscometers, gas chromatographs and automatic/composite samplers;

(j) mechanical and electrical systems of a facility building, including plumbing, air conditioning, heating and ventilation systems, not involving the use or disposal of chlorofluorocarbons;

(k) detection and monitoring systems; or

(l) pollution reduction systems, if those systems are to be added to a compressor station, a pump station, a tank farm or a gas plant for the purpose of reducing the release of pollutants produced in the operation of the facility.

(2) Subsection (1) does not apply in respect of the proposed installation of a pipeline component that

(a) extends the pipeline beyond the limits of the property that was acquired for the construction of the present pipeline;

(b) is to be carried out within 30 m of a water body; or

(c) involves the likely release of a polluting substance into a water body, or results in an increase in airborne emissions or noise during the operation of the facility.

43. The proposed relocation, and subsequent operation, of a section of an onshore oil and gas pipeline or other onshore commodity pipeline if the project

(a) does not extend the pipeline beyond the limits of the property that was acquired for the construction of the present pipeline;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body, or result in an increase in airborne emissions or noise during the operation of the pipeline.

44. (1) In relation to an onshore oil and gas pipeline or other commodity pipeline, the proposed construction, installation, operation, expansion or modification of

(a) a security fence;

(b) a component needed for an in-line mechanical device used for inspecting or cleaning the pipeline;

(c) a salt cavern for natural gas storage;

(d) a brine pond or brine pond cover;

(e) an emergency power gas tank;

(f) a microwave dish and associated cables;

(g) a containment alarm;

(h) a corrosion inhibitor tank; or

(i) a pump and associated tubing.

(2) Subsection (1) does not apply in respect of a project that

(a) extends any component of the pipeline beyond the limits of the property that was acquired for the construction of the present pipeline;

(b) is to be carried out within 30 m of a water body; or

(c) involves the likely release of a polluting substance into a water body.

PART 6

FORESTRY

45. The proposed expansion or modification of a drainage structure on forested land, other than a structure that drains into a water body, if the project

(a) results in the structure having a length that does not exceed 110% of its length on the day on which these Regulations come into force, or, if the structure does not exist on that day, the day of completion of its original construction; and

(b) is not to be carried out in Yukon, the Northwest Territories or Nunavut.

PART 7

WATER-RELATED PROJECTS

46. The proposed construction, operation, expansion, modification or demolition of a bait storage depot, net repair area or patrol cabin or other structure associated primarily with fishing or the use of small pleasure craft if the project

(a) results in a structure with a footprint that does not exceed 100 m² and a height that does not exceed 5 m;

(b) is to be carried out on land; and

(c) does not involve the likely release of a polluting substance into a water body.

47. The proposed construction, installation, operation, expansion or modification of a fish habitat improvement structure if the project does not involve the use of heavy machinery.

48. The proposed construction, installation, operation, expansion, modification, decommissioning, removal or abandonment of a floating wharf or dock or a wharf or dock that has legs or piles that are not inserted into the substrate if

(a) the wharf or dock is attached to the shore above the high-water mark; and

(b) the project

49. The proposed modification of a wharf or dock that has legs or piles that are inserted into the substrate, or of a breakwater that is accessible by land, if the project

(a) is not to be carried out below the high-water mark; and

(b) does not involve the likely release of a polluting substance into a water body.

50. The proposed demolition of all or part of a wharf or dock if the project

(a) does not involve the use of explosives;

(b) involves the removal from the water of all demolished portions of the wharf or dock; and

(c) does not involve the likely release of a polluting substance into a water body.

51. The proposed construction, installation, operation, expansion, modification, decommissioning or abandonment of a single-span bridge and any supporting structures if the project

(a) results in a bridge that is no more than 25 m long and 20 m wide;

(b) does not involve the installation of any supporting structures in a water body;

(c) is not to be carried out in or on a water body; and

(d) does not involve the likely release of a polluting substance into a water body.

52. The proposed construction, installation, operation, expansion, modification, decommissioning or abandonment of a single-span aerial cable and any supporting structures if the project

(a) does not involve the installation of any supporting structures in a water body;

(b) is not to be carried out in or on a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

53. The proposed construction, installation, operation, modification, decommissioning or removal of a device used for the capture or enumeration of fish for resource management purposes if the project does not involve

(a) the use of heavy machinery; and

(b) the likely release of a polluting substance into a water body.

54. The proposed operation of a bridge, a culvert, a dock, a wharf, an aerial cable or run-of-the-river dam for which approval under subsection 6(4) of the Navigable Waters Protection Act is required if

(a) the construction of the bridge, culvert, dock, wharf, aerial cable or run-of-the-river dam is completed before the day on which these Regulations come into force; and

(b) the project does not involve the likely release of a polluting substance into a water body.

PART 8

TRANSPORTATION

55. The proposed expansion or modification of a runway, taxiway, parking area or other paved or gravel area used for the operation or servicing of aircraft within the boundary of an airport, as defined in subsection 3(1) of the Aeronautics Act, if the project

(a) results in the paved or gravel area having an area that does not exceed 110% of its area on the day on which these Regulations come into force, or, if the area does not exist on that day, the day of completion of its original construction;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

56. The proposed operation or modification of aircraft manoeuvring lights or navigation aids.

57. The proposed construction, installation, operation, expansion or modification of an automatic warning structure at a railway level crossing.

58. The proposed construction, installation, operation, expansion or modification of a railway traffic control signal structure if the project is to be carried out next to a railway line.

59. (1) The proposed construction, installation, operation, modification, abandonment or replacement of a portion of

(a) an oil and gas pipeline or other commodity pipeline,

(b) a water pipe,

(c) a sewer or drain,

(d) a steam line or tunnel, or

(e) a buried telecommunication or electrical transmission line if that portion is located alongside or underneath a railway or road.

(2) Subsection (1) does not apply if the project

(a) is to be carried out within 30 m of a water body; or

(b) involves the likely release of a polluting substance into a water body, or results in an increase in airborne emissions or noise during the operation of the physical work.

60. The proposed expansion or modification of a railway line, or the proposed construction, expansion, modification or replacement of a culvert that crosses under the railway line, if the project

(a) is to be carried out within

(b) does not increase the diameter of the culvert;

(c) does not result in a culvert that extends more than 10 m beyond the railway roadbed;

(d) is not to be carried out within 30 m of a water body; and

(e) does not involve the likely release of a polluting substance into a water body.

61. The proposed modification or closure of a road crossing, as defined in subsection 4(1) of the Railway Safety Act, if the project

(a) is to be carried out within the property that was acquired for the construction of the existing railway or road;

(b) does not require an authorization under subsection 101(3) of the Canada Transportation Act;

(c) is not to be carried out within 30 m of a water body; and

(d) does not involve the likely release of a polluting substance into a water body.

62. The proposed construction or operation of a railway spur line less than 500 m in length, and the proposed construction of any culvert that crosses under the spur line, if the project

(a) does not result in a culvert that extends more than 10 m beyond the railway roadbed;

(b) is not to be carried out within 30 m of a water body; and

(c) does not involve the likely release of a polluting substance into a water body.

63. The proposed expansion or modification of a road, and the proposed expansion, modification or replacement of a culvert that crosses under the road, if the project

(a) does not lengthen the road or increase the diameter of the culvert;

(b) does not widen the road by more than one lane beyond the number of lanes contained within the road on the day on which these Regulations come into force, or, if the road does not exist on that day, the day of completion of its original construction;

(c) does not extend the culvert more than 10 m beyond the roadbed;

(d) is not to be carried out within 30 m of a water body; and

(e) does not involve the likely release of a polluting substance into a water body.

SCHEDULE 2
(Sections 3 and 4)

EXCLUSION LIST FOR NATIONAL PARKS, PARK RESERVES, NATIONAL HISTORIC SITES AND HISTORIC CANALS

1. The proposed maintenance or repair of a structure or the proposed modification of a structure, other than a heritage structure, if the project does not

(a) involve a change in the method of sewage disposal, or an increase in the amount of sewage, waste or emission;

(b) involve an excavation beyond the footprint of the structure;

(c) create a need for related facilities such as parking spaces;

(d) involve the use, storage, transport, or dispensing of a polluting substance for commercial purposes;

(e) affect permafrost; and

(f) involve the likely release of a polluting substance into the environment.

2. The proposed maintenance or repair of a structure, or the proposed operation, expansion or modification of a structure, other than a heritage structure, located in the Town of Banff or the Town of Jasper as they are described in Schedule I to the National Parks of Canada Lease and Licence of Occupation Regulations, in a resort subdivision described in Schedule II to those Regulations or in a visitor centre described in Schedule III to those Regulations, if the project

(a) where it is to be carried out on land subject to a lease, does not extend beyond the limits of that land;

(b) results in a structure with a footprint or height that does not exceed 110% of the footprint or height of the structure on the day on which these Regulations come into force, or, if the structure does not exist on that day, the day of completion of its original construction;

(c) does not involve the cutting of indigenous trees;

(d) does not involve the use, storage, transport or dispensing of a polluting substance for commercial purposes;

(e) is not to be carried out in, on or above a water body; and

(f) does not involve the likely release of a polluting substance into the environment.

3. The proposed maintenance or repair of a sidewalk, boardwalk or parking lot if the project

(a) does not involve the use of heavy machinery; and

(b) does not affect permafrost.

4. The proposed maintenance or repair of a fence.

5. The proposed construction, installation, operation, maintenance, repair or removal of a sign, flagpole, bench, lightpole or firewood container if the project

(a) is to be carried out

(b) does not involve the use of heavy machinery; and

(c) does not affect permafrost.

6. The proposed maintenance or repair of a road, including the roadbed and pull-off areas, if the project does not

(a) involve the application of a dust control product or salt or the application of a pest control product; and

(b) result in the likely release of a polluting substance into a water body.

7. The proposed maintenance or repair of an environmental scientific data collection instrument and its housing and enclosure.

8. The proposed construction, installation or operation of an interpretive display or exhibit associated with another physical work if the project

(a) does not require an expansion of the other physical work;

(b) is not located in a special preservation area or a wilderness area set out in a management plan referred to in subsection 11(1) of the Canada National Parks Act; and

(c) does not affect permafrost.

9. The proposed construction, installation, modification, maintenance, repair or removal of a handrail or guardrail fastened to another physical work.

10. The proposed maintenance or repair of a fire tower.

11. The proposed operation of a physical work that is the same as an operation for which an environmental assessment has been previously conducted under the Act or the Environmental Assessment and Review Process Guidelines Order, if, as a result of the assessment,

(a) the operation was determined to be unlikely to cause significant adverse environmental effects, taking into account the implementation of mitigation measures, if any; and

(b) the mitigation measures and follow-up program, if any, have been implemented as required in accordance with any timetable established by the responsible authority.

12. The proposed modification, maintenance or repair of a buried water, sewer, gas, electricity or telephone service line, other than a line crossing a water body, in the Town of Banff or the Town of Jasper as they are described in Schedule I to the National Parks of Canada Lease and Licence of Occupation Regulations, in a resort subdivision described in Schedule II to those Regulations or in a visitor centre described in Schedule III to those Regulations, if the project

(a) is to be carried out in a built-up area;

(b) does not involve the cutting of indigenous trees;

(c) does not increase the operating capacity of the service line;

(d) does not involve a risk of physical harm to mammals;

(e) is not to be carried out within 30 m of a water body; and

(f) does not involve the likely release of a polluting substance into the environment.

SCHEDULE 3
(Section 4)

EXCLUSION LIST FOR HISTORIC CANALS

1. The proposed maintenance or repair of a historic canal, including its lock stations, dams and retaining walls, if the project does not involve

(a) the removal or the lowering of the level of the water in any part of the canal outside a lock station;

(b) dredging, blasting or filling; and

(c) the likely release of a polluting substance into the canal.

2. The proposed maintenance or repair of a base for navigational aids or a physical work used to control the flow of water in the main channel of a historic canal or as a breakwater if the project does not result in the likely release of a polluting substance into the environment.

3. The proposed construction, installation, operation, maintenance or repair of an in-water structure that does not have a solid foundation or does not penetrate the bed of a historic canal, if the project does not involve

(a) the use of heavy machinery on the bed of the canal to install or maintain the structure;

(b) dredging; and

(c) the likely release of a polluting substance into the canal.

4. The proposed construction, installation, maintenance or repair of shore stabilization works if the project does not involve

(a) dredging or excavation;

(b) the use of heavy machinery on the bed of a historic canal;

(c) an encroachment on the bed of the canal; and

(d) the likely release of a polluting substance into the canal.

5. The proposed construction, installation, operation, maintenance or repair of a non-commercial marine railway or boat lift if the project does not involve

(a) dredging or excavation;

(b) the use of heavy machinery on the bed of historic canal; and

(c) the likely release of a polluting substance into the canal.

6. The proposed construction, installation, operation, maintenance or repair of an aerial telecommunication or electrical transmission line that crosses a historic canal and is supported solely by a single pole on either side of the canal.

7. The proposed construction, installation, operation, maintenance or repair of a submarine cable or submarine utility pipeline, other than an oil and gas pipeline, if the project does not involve

(a) the crossing of a wetland; and

(b) an alteration to the bed of a historic canal.

[51-1-o]

Footnote a

S.C. 2003, c. 9, s. 29(2)

Footnote b

S.C. 1992, c. 37

Footnote 1

SOR/94-639

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