Registration

SOR/2008-259 September 5, 2008

CANADIAN ENVIRONMENTAL ASSESSMENT ACT

Regulations Amending the Exclusion List Regulations, 2007

P.C. 2008-1606 September 5, 2008

Whereas the Governor in Council is satisfied that the environmental effects of certain projects in relation to physical works are insignificant;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subparagraph 59(c)(ii) (see footnote a) of the Canadian Environmental Assessment Act (see footnote b), hereby makes the annexed Regulations Amending the Exclusion List Regulations, 2007.

REGULATIONS AMENDING THE EXCLUSION LIST REGULATIONS, 2007

AMENDMENTS

1. Subsection 4(2) of Schedule 1 to the French version of the Exclusion List Regulations, 2007 (see footnote 1) is replaced by the following:

(2) Pour l’application de l’alinéa (1)a), un changement d’exploitant ne constitue pas en soi un changement à l’exploitation ou à la désaffectation actuelles.

2. Subsection 6(2) of Schedule 1 to the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):

(l) providing facilities and services for the posting, receipt, sorting, handling, transmission or delivery of mail.

3. Paragraph 7(a) of Schedule 1 to the Regulations is replaced by the following:

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

4. Schedule 1 to the Regulations is amended by adding the following after section 25:

25.1 The proposed construction, installation, operation, expansion, modification, decommissioning or removal of a receptacle and its base and enclosure, if any, that is to be used exclusively for the collection, delivery or storage of mail, if the project

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

(b) is carried out on land; and

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

5. Paragraph 33(a) of Schedule 1 to the French version of the Regulations is replaced by the following:

a) est réalisé à côté de la ligne de transport d’électricité ou de télécommunication;

6. The portion of section 45 of Schedule 1 to the French version of the Regulations before paragraph (a) is replaced by the following:

45. Projet de construction, d’exploitation, d’agrandissement, de modification ou de démolition d’un dépôt d’appâts, d’une aire de réparation de filets ou d’un poste de patrouille, ou de toute structure utilisée principalement pour des activités relatives à la pêche ou à la navigation de plaisance, si les conditions suivantes sont réunies :

7. Paragraph 47(1)(a) of Schedule 1 to the French version of the Regulations is replaced by the following:

a) le quai ou l’embarcadère n’est pas relié à la terre au-dessous de la laisse ou de la limite annuelle des hautes eaux;

8. The portion of section 61 of Schedule 1 to the French version of the Regulations before paragraph (a) is replaced by the following:

61. Projet de construction ou d’exploitation d’une voie d’embranchement ferroviaire qui ne dépasse pas 500 m de longueur et projet de construction de tout ponceau qui passe sous la voie, si les conditions suivantes sont réunies :

9. The portion of section 2 of Schedule 2 to the Regulations before paragraph (a) is replaced by the following:

2. The proposed operation, maintenance, repair, 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

10. Paragraph 13(c) of Schedule 2 to the French version of the Regulations is replaced by the following:

c) n’entraîne pas d’augmentation de la capacité de la conduite de branchement ou de service;

11. The French version of the Regulations is amended by replacing “par plus de” with “de plus de” in the following provisions:

(a) in Schedule 1,

(i) paragraph 15(b),

(ii) paragraph 25(a),

(iii) paragraph 32(a),

(iv) paragraphs 35(a) and (b),

(v) paragraph 44(a),

(vi) paragraph 47(2)(a), and

(vii) paragraph 54(a); and

(b) paragraph 2(b) of Schedule 2.

COMING INTO FORCE

12. 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

The Canadian Environmental Assessment Agency (the Agency) is amending the Exclusion List Regulations, 2007 to exclude from the federal environmental assessment process under the Canadian Environmental Assessment Act (the Act) certain projects within the business activities of the Canada Post Corporation that are known to have insignificant environmental effects. In addition, miscellaneous amendments are made to address errors and discrepancies, most of which were identified by the Standing Joint Committee for the Scrutiny of Regulations, or to clarify the scope of certain provisions in the current Regulations.

The objectives of these amendments are to:

• reduce the number of unnecessary environmental assessments by broadening the scope of exemptions under the Exclusion List Regulations, 2007 to include certain projects undertaken by the Canada Post Corporation that have little or no effect on the environment; and

• improve the quality and clarity of the Regulations.

Description and rationale

The Act requires that federal authorities subject certain projects to environmental assessments before initiating them, or providing funding, or granting land or regulatory approvals that enable them to proceed. The Exclusion List Regulations, 2007 specify projects involving physical works with insignificant environmental effects that are exempt from undergoing an environmental assessment under the Act. The legal authority to make the Exclusion List Regulations is found in subparagraph 59(c)(ii) of the Act.

These Regulations amend the Exclusion List Regulations, 2007 by:

(1) adding newly excluded projects involving physical works that have been shown to cause insignificant environmental effects based on the results of previous environmental assessments; and

(2) modifying certain existing provisions to correct discrepancies between the English and French text, to clarify their scope, or to correct errors.

New exclusions

A project exclusion list has been in existence since the Act came into force in 1995; the current list is found in the Exclusion List Regulations, 2007. When federal Crown corporations became subject to the Act as a result of legislative amendments that came into force on June 11, 2006, they were invited to propose additions to the exclusion list to reflect the particulars of each of their organization’s business activities not already excluded. The Canada Post Corporation was the only Crown corporation to put forward projects to be added to the exclusion list. The Agency determined that these Canada Post Corporation projects would not cause significant environmental effects and thus, is making two amendments to the Regulations.

The first amendment concerns section 6 of the Exclusion List Regulations, 2007. This section excludes undertakings (construction, installation, operation and expansion) in relation to buildings to be used for specific purposes such as the provision of offices, medical facilities and storing of non hazardous substances. Pursuant to subsection 6(1), these buildings are excluded only if the project: (a) is to be carried out on a serviced building lot on which the building is to be connected to the lot’s hook-ups to water and sewage mains, or unserviced land (no existing water and sewer hook-ups) with a prescribed limited footprint; (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.

This amendment adds to subsection 6(2) buildings used to provide postal and related services. Although subsection 6(2) contains several entries that could be interpreted to cover such uses such as providing office space, meeting rooms and related facilities, and the temporary storage of mail (non-hazardous) at facilities, adding this entry removes any uncertainty in this regard.

The second amendment, which results in the addition of section 25.1, excludes “street furniture” projects that the Canada Post Corporation undertakes throughout Canada on a regular basis. Street furniture refers to installations such as community mailboxes, street letter boxes, relay boxes and courier boxes. Under the current Exclusion List Regulations, 2007, the majority of street furniture installation projects are excluded as they are under 25 m². However, an environmental assessment is required if the projects are carried out within 30 m of a water body.

Many of the existing exclusions (e.g. section 5) contain a standard condition that, in order to be excluded, a project not be within 30 m of a water body. However, on a case-by-case basis, information may be available that shows certain types of projects, even when undertaken within 30 m of a water body, do not cause significant environmental effects. For example, the current Exclusion List Regulations, 2007 exempt projects such as a hydrant or hook-up, a sign, a temporary exhibition structure affixed to the exterior of a building or a boundary monument even if they are located within 30 m of a water body.

The installation of street furniture is simple and usually involves placing it on a concrete slab or extended sidewalk. Standard construction specifications are also used for all street furniture projects to ensure consistency in design. Experience gained by the Canada Post Corporation from conducting environmental assessments of these street furniture projects within 30 m of a water body has systematically shown that environmental effects have a low magnitude, geographic extent and duration (one day) and are reversible. These effects have been found to be insignificant. Therefore, all street furniture projects with a footprint under 25 m² are excluded with the standard condition that the project not involve the likely release of a polluting substance into a water body, and that the project be carried out on land.

This exclusion affects approximately 50 to 100 community mailbox installations carried out annually within 30 m of a water body. This estimate is based on data from 2006. Future replacement of existing community mailboxes could substantially increase this number.

Miscellaneous amendments

A number of miscellaneous amendments improve the overall quality and clarity of the Regulations by correcting discrepancies between the English and French versions, clarifying the scope of certain provisions or addressing minor errors. The more significant of these minor amendments are described below.

Schedule 1, section 45

The intention of section 45 of Schedule 1 of the Regulations is to exclude projects associated with fishing-related structures that are known to cause insignificant environmental effects. However, the English version of the Regulations refers simply to fishing, whereas the French version refers explicitly to sport fishing (“pêche sportive”). The structures that are intended to be excluded under section 45, such as structures associated with net repair areas, are not generally associated with sport fishing. In addition, the previous Exclusion List Regulations did not restrict a similar exclusion to sport fishing. In order to conserve the intended effect, an amendment to the French version is necessary to delete the word “sportive.”

Schedule 1, paragraph 47(1)(a)

The intention of subsection 47(1) of Schedule 1 is to exclude the proposed construction, installation or operation of wharves and docks attached to the shore above the annual high-water mark from undergoing an environmental assessment because evidence has shown that such projects cause insignificant environmental effects. An environmental assessment for wharves and docks attached below the annual high-water mark should continue to be conducted because of the potential for the projects to cause significant environmental effects to the fragile riparian ecosystems found below the high-water mark. However, due to a discrepancy between the English and French versions, the exclusion in the French version applies to wharves or docks that are attached below the annual high-water mark, not above. In order to conserve the intended effect, an amendment to the French text to reflect the English text is necessary.

Schedule 2, section 2

When the Exclusion List Regulations were amended in 2007, the intent of section 2 of Schedule 2 was to exclude the proposed operation, maintenance, repair, expansion or modification of a structure, other than a heritage structure, in the Town of Banff or the Town of Jasper, if certain conditions are met (e.g. does not involve the cutting of indigenous trees). However, between the pre-publication of the draft Regulations and publication of the final Regulations, the word “operation” was inadvertently removed. Thus, the section is amended to restore the original intent of the provision.

Benefits and costs

The amendments to the Exclusion List Regulations, 2007 have no or negligible impact on private-sector project proponents.

The amendments will reduce the annual number of unnecessary environmental assessments conducted on a yearly basis by the Canada Post Corporation thus allowing it to focus its environmental assessment resources on projects that could potentially cause significant environmental effects.

Comprehensive information related to those costs is not available to the Agency as the federal environmental assessment process operates on the principle of self-directed assessment; federal responsible authorities must ensure that assessments are conducted where required and those authorities are not obligated to report the cost of any particular assessment. As a rule of thumb, the cost of conducting an environmental assessment for a project is estimated at 1% of total project cost.

The other miscellaneous amendments do not have any financial impacts but improve the overall quality and clarity of the Regulations.

Based on the results of the preliminary scan conducted in accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, implementation of the Regulations will not result in important environmental effects, either positive or negative.

Consultation

The principle of excluding projects that have insignificant environmental effects from requiring an environmental assessment is well supported by federal authorities, including other Crown corporations, and stakeholders.

Comments on the amendments related to the projects of the Canada Post Corporation were solicited from members of the Minister of the Environment’s multi-stakeholder Regulatory Advisory Committee and the Agency’s Senior Management Committee on Environmental Assessment, as well as other Crown corporations. No concerns, objections or suggestions about these proposed amendments were received.

Implementation, enforcement and service standards

There is no formal compliance or enforcement mechanism applicable to the Exclusion List Regulations, 2007. Federal authorities are individually responsible for ensuring that they comply with the Act and its Regulations. Thus, if a federal authority has a decision to make regarding a project; it is responsible for determining whether the project can be exempt from requiring an environmental assessment in accordance with the Exclusion List Regulations, 2007.

The Agency does, however, play a role in promoting and monitoring compliance with the Act and its Regulations. The Agency assists federal authorities in meeting their obligations through the issuance of guidance and the provision of training. In addition, the Agency’s regional offices are available to assist federal authorities in fulfilling their environmental assessment responsibilities and applying these Regulations.

Contact

Anik Génier
Manager, Regulations
Legislative and Regulatory Affairs
Canadian Environmental Assessment Agency
160 Elgin Street, 22nd Floor
Ottawa, Ontario
K1A 0H3
Telephone: 613-957-0277
Fax: 613-957-0897
Email: anik.genier@ceaa-acee.gc.ca

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

Footnote b
S.C. 1992, c. 37

Footnote 1
SOR/2007-108

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