The Regulations Designating Physical
Activities (the Regulations) determine which projects will
fall within the scope of the Canadian Environmental Assessment Act,
2012 (the Act) for the purposes of triggering the
requirement for a federal environmental assessment (EA).
Amendments to the Regulations relevant to oil and gas exploration
and production activities in the East Coast offshore were
registered and took effect on November 6, 2013. These changes
are aimed at ensuring that only major projects will trigger an EA
under the Act by providing clarification as to the application of
the Act to offshore oil and gas activities.
Changes Respecting Facilities
The amendments to the Regulations with respect to offshore
production facilities and pipelines do not represent a new EA
trigger. Prior to the amendments the Regulations included a
trigger in respect of such facilities, so the amendments are
intended to clarify the application of this trigger as opposed to
broadening the scope of the offshore facilities that will require
Changes Respecting Pipelines
The amendments clarify and narrow the scope of pipelines that
require an EA under the Act. Prior to the amendments, any
offshore pipeline would trigger an EA if it was located beyond the
scope of a previous EA. The amendments clarify that only the
construction, operation, decommissioning and abandonment of a new
offshore oil and gas pipeline, other than a flowline, will trigger
This suggests that minor extensions or modifications to
previously-assessed offshore oil and gas pipelines will not require
an EA under the Act, even if such extensions or modifications were
not included within the scope of a previous EA. However, there
remains uncertainty as to if and when a pipeline extension would
qualify as a "new" pipeline under the Regulations.
Changes Respecting Exploratory Drilling
The amendments add a new trigger which requires an EA for the
"drilling, testing and abandonment of offshore exploration
wells in the first drilling program in an area set out in one or
more exploration licences". As opposed to the clarification
introduced with respect to offshore production facilities and
pipelines, this amendment creates a federal EA trigger that was not
previously included in the Regulations.
However, the true scope of the requirement to perform an EA in
respect of offshore exploration wells is uncertain. The
amendments provide that exploration wells "in the first
drilling program in an area" require an EA. This suggests that
if proponents propose to drill a single well within an exploration
licence and conduct an EA in respect of that well, that no further
EA will be required for any additional wells, even if such
additional wells represent additional environmental risks not
necessarily addressed in the EA in relation to the first
The amendments respecting offshore production facilities and
pipelines provide enhanced direction as to which activities will
require an EA under the Act. The ongoing refinement of the Act and
Regulations remains consistent with Canada's previously-stated
objectives of focusing the requirements associated with federal EAs
to major projects and eliminating duplication in the regulatory
However, as with all regulatory amendments, some uncertainty
remains. The extent to which the application of the Act to
pipelines has been narrowed is not entirely clear, and, although
the amendments respecting exploratory wells clearly create a new EA
trigger under the Act, there is some uncertainty as to the true
breadth and scope of this trigger. We expect that further
guidance documents and precedent will be established by the
Canadian Environmental Assessment Agency and the National Energy
Board in the near future, which will provide answers to some of
these remaining questions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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