This consultation was open from:
September 11, 2020
to November 10, 2020
The Ministry of the Environment, Conservation and Parks (MECP) is seeking input on a proposed list of projects which will be subject to the comprehensive environmental assessment requirements in Part II.3 of the Environmental Assessment Act (EAA) and will be designated in a regulation as Part II.3 projects.
The Ontario government continues to generate economic activity through local infrastructure projects that will not only create good quality jobs but help improve our quality of life.
On July 21, 2020, Bill 197, the COVID-19 Economic Recovery Act, 2020 which included amendments to the EAA, received Royal Assent, enabling regulations to set out the list of projects that would be subject to the Act. This was one of our first steps towards clearly identifying projects that would be subject to environmental assessment in Ontario.
Currently, projects are subject to environmental assessment based on “who” is doing the work, rather than what the project is.
The Project List for comprehensive and streamlined environmental assessments is critical to the transformational change required to modernize the environmental assessment program.
What we’re consulting on
Comprehensive EA Project List
To achieve our vision for a project list that focuses on potential environmental impact, we are now consulting on a proposed list (the Comprehensive EA Project List) which will identify the projects that will be subject to the new Part II.3 of the Act (comprehensive environmental assessment) through a regulation. In some cases, we have described the project type with specific detail, and in other cases, we are looking for broad input with respect to how we should describe the projects that should be on the Comprehensive EA Project List.
Based on input received on the proposed list of projects, the ministry will seek input on a draft regulation prior to it being made.
Streamlined EA Project List
In the coming months, a second list of proposed projects that will be subject to the Streamlined Environmental Assessment provisions of the amended EAA (Part II.4) will be developed. As the ministry transitions from class environmental assessments and exemption regulations to using a new process of Streamlined Environmental Assessments, we will be consulting on the proposed list and the regulation that sets out the types of projects that would be subject to this process.
Until the Streamlined Project List is in place, the projects which undergo a Streamlined Environmental Assessment under a Class Environmental Assessment or regulation will continue to be required to do so.
Why we’re developing Project Lists
Since the introduction of the EAA in 1975, there has been a need to exempt many types of projects simply because an EA was required when it was not warranted, and we have also had to provide clarity in various statutes that certain plans are not subject to the EAA.
There are currently more than 100 exemptions under the EAA including exemptions for emergency wells, monuments, and minor road projects. Some private sector activities, such as waste management and electricity generation or transmission are also subject to environmental assessment requirements through designating regulations.
As noted, the EAA was amended on July 21, 2020 to enable the development of a project list regulation. The project list approach is consistent with the federal government and other provincial environmental assessment frameworks across Canada. It is intended to focus environmental assessment requirements and environmental oversight on high (comprehensive) and medium impact (streamlined) projects. This approach will allow us to eliminate unnecessary burden on low-impact projects and duplicative requirements, while ensuring the ministry focuses on projects that may pose a greater impact to the environment.
Comprehensive Environmental Assessment (EA) Project List
In keeping with the approach of projects with the most significant impacts having the most comprehensive assessment process, projects included in the Comprehensive EA Project List will be those projects that in the ministry’s experience have been seen to have the potential for significant environmental impacts taking into account the following criteria:
- the magnitude of the effect
- the geographic extent of the effect
- the duration of the effect
- the frequency of the effect
- the degree of reversibility of the effect
- the possibility of occurrence of the effect
Eliminating duplication with other legislation, policies or processes is another consideration that has guided this proposal and will continue to guide the finalization of the Comprehensive EA Project List.
Alignment of thresholds for a project to trigger a Comprehensive EA with the federal threshold for an Impact Assessment for example, may be considered as a means to support the alignment of key milestones, such as consultation and decision-making in the Canadian and Ontario environmental assessment processes, and may facilitate substitution in order to have a project subject to both the federal and provincial environmental assessment process undergo one environmental assessment.
Once a project list regulation is made, the government will continue to have the authority to designate specific projects and make them subject to EAA requirements if they are not the type of project listed in the Project List Regulation(s). Project proponents will also continue to have the ability to volunteer to make their projects subject to EAA requirements if their project is not on the Project List Regulations (s). For example, this happens in some cases when a project triggers multiple streamlined EA processes, and undertaking an individual or comprehensive EA allows them to coordinate and obtain approvals for all project components under one process.
Finally, existing exemptions will continue to apply (e.g. those under O. Reg. 334 where applicable) for specific projects that have an exemption. Under the EAA, the government will continue to be able to consider and propose additional exemptions in respect of specific projects when appropriate, subject to consultation.
Considerations for classes of projects currently designated under the EAA
Ontario Regulations 116/01 (Electricity Projects), 101/07 (Waste Management Projects) and 231/08 (Transit Projects and Metrolinx Undertakings) currently designate types of projects (referred to as undertakings) under the EAA and include provisions that create exemptions (including provisions that set out what the Act does not apply to). These exemptions include ones based on following a streamlined environmental assessment (referred to as a screening process).
The proposed List of Projects takes into account the designation and exemptions in the three regulations. We are proposing to include in the Comprehensive EA Project List those undertakings (projects) which are designated under the regulations and that are not exempted subject to the screening processes (i.e. the regulation does not provide a streamlined environmental assessment process).
Projects which undergo a streamlined environmental assessment
This proposal is for the Comprehensive EA Project List. A second proposed list of projects and regulation setting out the projects that will be subject to the Streamlined Environmental Assessment provisions of the amended EAA (Part II.4) will be developed in the future as the ministry transitions from class environmental assessments and exemption regulations to new streamlined environmental assessment regulations.
Until the Streamlined Environmental Assessment Project List is in place, the projects (undertakings) which undergo a streamlined assessment under a Class Environmental Assessment (Class EA) or one of the designating and exempting regulations mentioned above will continue to be required to do so, subject to any changes that are made to them, including the current proposed Class EA amendments.
Complementary amendments to the designating and exempting regulations and Class EAs will be made as necessary to align them with the Comprehensive EA Project List, once the list is finalized and in conjunction with the making of the Comprehensive EA Project List regulation.
Note that, for electricity transmission projects, thresholds for projects proceeding under the comprehensive and streamlined environmental assessment processes may be revisited and consulted on when the Project List regulation for streamlined environmental assessments is proposed.
As noted, the ministry currently has more than 100 exemptions and Declaration Orders regulations in place. Once the Project Lists (comprehensive and streamlined) are in place, many of these exempting regulations will no longer be required because an environmental assessment will not be required for projects that are not on the Project Lists. As such, the ministry will revoke these unnecessary regulations. Some of these regulations may also need to be amended to align with the Project Lists once finalized and the regulations made.
Once the Comprehensive EA Project List is finalized a number of the amendments to the EAA will be brought into force together with making the Comprehensive EA Project List regulation, including replacing Part II of the EAA with Part II.3. We are proposing that transition provisions be set out to ensure that projects for which the environmental assessment process is underway when the Comprehensive EA Project List regulation is made (i.e. at a minimum a Terms of Reference has been submitted for approval) will be able to continue through the comprehensive EA process uninterrupted and without having to duplicate or re-do any work solely as a consequence of the coming in force of Part II.3.
Additionally, we are inviting public comment on whether there are any other transition issues that should be addressed in the Project List Regulation for Comprehensive Environmental Assessment.
We are consulting a wide range of interested persons on the proposal for the Comprehensive EA Project List including:
- Indigenous communities
- members of the public
- industry/industry associations
- non-governmental organizations
Feedback can be provided through comments on this proposal. We are specifically looking for input on the projects that are being proposed for the list, and any adjustments to the current criteria (thresholds) which form part of the designation (such as kilowatt hours, tonnage, etc.).
The attached document titled “Project List Regulation– Projects subject to Part II.3 (comprehensive environmental assessment)” is a list of projects that are being proposed as projects to be subject to Part II.3 (Comprehensive Environmental Assessment) of the Act, subject to existing exemptions. Once the project list is finalized, the ministry will develop the specific regulatory language. The proposed regulation will be posted for public comment and the relevant provisions of the Act will be proclaimed in conjunction with making of the regulation. The ministry will be taking any comments you have into consideration as it finalizes the project list for the regulation.
It should also be noted that the EAA provides that a project that is designated includes all ancillary activities, so the list of proposed projects should be reviewed with this in mind.
The government’s vision of a modernized environmental assessment program was set out in a discussion paper titled, “Modernizing Ontario’s Environmental Assessment Program,” which the Ministry of the Environment, Conservation and Parks consulted on in April 2019. It was also referenced as a key commitment in the government’s 2018 Made-in-Ontario Environment Plan.
The paper identified immediate actions, such as exempting low-impact projects, as well as longer-term actions to ensure that the environmental assessment program was focused on projects with the greatest impacts to our environment and communities.
Subsequently, the More Homes, More Choice Act, 2019 amended the EAA to exempt low-impact projects from conducting an environmental assessment. This Act also amended to the EAA to authorize further exemptions of low-impact projects through amendments to class environmental assessments.
Building on the feedback the ministry received on the discussion paper and as a next step of modernization, the ministry proposed changes to the EAA as part of Bill 197. Bill 197, the COVID-19 Economic Recovery Act, 2020 received Royal Assent on July 21, 2020 amending the EAA. It is the next step in implementing the government’s vision of a modernized environmental assessment program.
The ministry is now able to begin the process of consulting with the public, Indigenous communities and stakeholders on the implementing regulations that will further the modernization of the province’s environmental assessment program. We are starting the work on the Project List regulation(s).
The discussion paper that was posted for comment in April 2019 focused on four themes, one of which included ensuring better alignment between the level of assessment and level of environmental impact in environmental assessment processes. Feedback received from a wide range of interested persons on this theme assisted the ministry in developing the list of projects it is now proposing to be subject to a comprehensive environmental assessment process.
The ministry also worked with holders of class environmental assessments to propose sensible, practical changes that would ensure strong environmental oversight while eliminating duplication and reducing delays. The ministry then consulted on proposed amendments to those class environmental assessments and proposed exempting regulations for specific projects and activities this summer. The comment period for these proposals ended on August 22, 2020 and the ministry is now considering the input received. The posting for these proposals may be viewed at https://ero.ontario.ca/notice/019-1712.
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