Mica Dam spillway

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Recent Federal Changes to Environmental Legislation - A bird’s eye view

Working with environmental assessments and related permitting and approvals processes is a large part of our day-to-day operations. Our professionals rely on their knowledge of environmental legislation, relationships developed with agencies, and many years of case law experience to guide our clients through small to large and complex projects.

An Environmental Assessment is typically required to obtain regulatory approvals from local, provincial or federal governments. An Environmental Assessment is a systematic process used to identify and evaluate the potential effects of proposed activities on the environment. This often means the social, cultural, physical, and economic environment, as well as the natural one. If integrated early into the design process, an Environmental Assessment is a useful tool that can help to avoid or minimize environmental impacts and plan for effective mitigation.

Times are changing

In June 2012, the Federal Government passed Bill C-38. This new Bill has affected about 70 laws and many pieces of legislation, including substantial changes to the Canadian Environmental Assessment Act (CEAA) and the Fisheries Act. Another omnibus bill, Bill C-45, passed in October 2012 and made significant changes to the Navigable Waters Protection Act.

These bills have changed the environmental assessment and permitting process; however, the regulations required to implement these laws have not yet been developed and adopted. What we do know is that environmental law has been relaxed, which has drawn the attention of professionals, environmentalists, and lawyers to the potential impacts and future implications.

What’s going on today?

The Canadian Environmental Assessment Act establishes the federal legislative basis for environmental assessment in most regions of Canada. Prior to Bill C-38, an Environmental Assessment was triggered under CEAA 1992, whenever a federal authority proposed or financed a project on federal lands, or provided approvals. Commonly, this included activities such as federally-funded infrastructure projects on First Nation reserves, or projects requiring Fisheries Act or Navigable Waters Protection Act approvals. Typically, these projects were reviewed at the screening level.

The new Act (CEAA 2012) now applies only to projects described in the Regulations Designating Physical Activities or designated by the Minister of the Environment. For minor projects, there are no more “screenings” under CEAA. However, there are provisions to allow a project to follow a comparable provincial process instead. Some federal agencies (Aboriginal Affairs and Northern Development Canada, for example) have developed their own environmental assessment process for non-designated projects.

The Fisheries Act has been revised from managing habitats to managing conditions for commercial, recreational, or Aboriginal fisheries. This includes removing the section defining “harmful alteration, disruption or destruction” of fish habitat and replacing it with a prohibition against activities that pose serious harm to fish that are part of a fishery. There are changes to come in 2013, as new regulations under the revised Fisheries Act are still being drafted.

Finally, the Navigable Waters Protection Act has been replaced by the Navigation Protection Act. Approvals will only be required for projects on the waterways listed under the Act; otherwise projects are subject to the common law right to navigation.

Where do we stand now?

As a consequence of this uncertainty, environmental professionals are proceeding cautiously. With regulations still being crafted, many unanswered questions remain, such as, what projects require an Environmental Assessment; what are the regulatory requirements and how will they be met; what does the application and review process look like and how long will it take; and when will the agencies define the new processes and how will they be interpreted?

Moving into the new environmental regime

During this transition period between Act and Regulation, uncertainty will remain. Decisions are either being deferred until the regulations are in place, or are being made based on the status quo, or somewhere in between. We are working closely with the respective government agencies to understand and identify new processes for designated and non-designated projects. From our bird’s eye view, we offer our clients the following advice:

• Environmental Assessments are still an important part of the design and regulatory process, even though their requirements may be changing

• Discussions with federal agencies may take longer than before, and decisions may not be forthcoming, until the regulations and their interpretations are clear

Most importantly, it is more critical than ever to engage experienced and knowledgeable environmental professionals early in the planning process to discuss how the legislative changes could affect a project, and the best way to move forward.

About the authors:

Corinna Hoodicoff, M.Sc., R.P.Bio., is the Manager of Associated Engineering’s Environmental Assessment and Planning Group in Vernon B.C. and has 14 years of experience in terrestrial ecology with a background in forest and grassland ecology, wildlife inventory and habitat assessments, species at risk, and ecosystem mapping and classification.

Sandra Meidinger, R.P.Bio., is a Senior Environmental Scientist with Associated Engineering’s Environmental Assessment and Planning Group in Vernon B.C. Sandra has 12 years of experience in aquatic and terrestrial assessment, wildlife monitoring, environmental impact assessment and mitigation and environmental monitoring.