By Karissa Kelln, Bernard LLP
When contemplating a project that entails a change to port lands (or water), one should be aware of the Project and Environmental Review Process and the hurdles to overcome before proceeding. Under the Canada Marine Act, the Vancouver Fraser Port Authority (VFPA) is responsible for the management, administration and control of land and water within its jurisdiction, including over 16,000 hectares of water and 1,000 hectares of land. Under section 67 of the Canadian Environmental Assessment Act, 2012 (CEAA), the VFPA is considered a “federal authority” and is tasked with assessing the environmental effects of proposed projects. To fulfill its responsibilities under the Canada Marine Act and CEAA, the VFPA administers a Project and Environmental Review Process to ensure all activities and developments meet applicable standards and minimize community and environmental impacts.
Anything that qualifies as a “project” will require review through the Project and Environmental Review Process. The three criteria of a project are: 1) a physical activity; 2) a physical work; and 3) federal lands (or waters). A physical activity consists of carrying out tasks or actions involved with operation, decommissioning, modification and construction (i.e., involving a degree of physical effort). A physical work includes structures that have been built by humans and that have a fixed locality and defined area (i.e., has a local permanence). Federal lands is defined at subsection 2(1) of the CEAA. To summarize, a project involves carrying out activities such as decommissioning, modification or construction in relation to an existing or new physical work (e.g., bridge, building, road or pipeline) situated partially or completely on lands or waters within the VFPA’s jurisdiction.
In addition, there are some “physical activities” that are not associated with “physical works” that require review under the Project and Environmental Review Process. Examples of such physical activities include dredging, remedial excavations or waterlot clean up. For the purposes of the Project and Environmental Review Process, these activities are also considered “projects.”
If a proposed project meets all three criteria as contemplated above, or is a physical activity as set out in the preceding paragraph, the Project and Environmental Review Process applies.
The VFPA has determined that certain works and activities do not need to go through the Project and Environmental Review Process. Excluded projects typically include construction or installation of small buildings and structures, replacement of existing equipment, and repair and maintenance activities. Individuals undertaking these works and activities must be existing VFPA tenants, or authorized consultants or contractors who have received permission from the tenant.
In relation to a proposed project, an important part of the Project and Environmental Review Process is to determine the spatial and temporal scope of the review to be conducted. The scope of the review will vary amongst projects, depending on several factors, including potential environmental effects. In addition to environmental effects, the VFPA also reviews other potential impacts pursuant to its responsibilities under the Canada Marine Act, the Port Authorities Operations Regulations and VFPA policy. This may include community concerns such as noise, views, lighting, traffic and transportation impacts.
In making decisions as to scope, the project lead assigned to the project will be guided by the following principles:
The scope of the project will typically be restricted to physical works and activities taking place within the project footprint on federal lands, as well as vessel traffic within the VFPA’s jurisdiction, if applicable.
The scope of the assessment will typically include an investigation of the environmental and other effects that result from the physical works that the VFPA is authorizing, regardless of whether those effects occur on VFPA lands. Indirect effects will not be included in the assessment.
The scope of the assessment will typically consider all physical activities and effects from the start of construction through to the time the project is expected to achieve full operating capacity.
Where potential environmental and other effects are determined to be insignificant, they will generally not be included in the scope of the assessment.
The Project and Environmental Review Process consists of four categories of review: A, B, C and D. The categories range in complexity with Category A being the least complex and D being the most complex. Applicants are expected to review the categories and make an initial assessment as to which category applies to their project. Where different elements of a proposed project appear to fit into different categories of review, the more complex category will generally apply to the project.
Category A projects are minor in scale and may be temporary in nature. These projects have predictable, minimal potential impacts. In addition, no consultation is anticipated. The review process typically takes between one to 10 business days. Examples of Category A projects include maintenance dredging, waterlot cleanup and construction of a small building near water with no excavation beyond imported fill or new utility infrastructure. There is no application fee for a Category A project.
Category B projects are relatively minor in scale but have attributes requiring additional technical analysis and may require specialized mitigations. These projects have low potential for environmental and community impacts. They may require public and stakeholder notification and/or aboriginal consultation. The review process typically takes 10 to 60 business days. Examples of Category B projects include shoreline protection works, installation of a new fueling facility with a total design storage capacity of less than 100,000 litres and expansion of an existing wharf in an area that is not environmentally sensitive. The application fee for a Category B project is $525 (taxes included) if no consultation is required, and $2,625 (taxes included) if consultation is warranted.
Category C projects are generally larger or more complicated, and may require additional technical studies to support their review. These projects have moderate potential for environmental and community impacts. Public, stakeholder and aboriginal consultation is anticipated. The review process typically takes between 60 and 120 business days to complete. Examples of Category C projects are installation of new facilities or equipment which will result in new discharges to air or water, construction or demolition activities in an environmentally sensitive area and construction of a new warehouse or distribution centre. The application fee for a Category C project is $13,125 (taxes included).
Finally, Category D projects are large and complicated, potentially involving significant commodity capacity increases or new commodities, and usually require a variety of supporting technical studies. These projects have a higher likelihood for environmental and community impacts. Public, stakeholder and aboriginal consultation is required. The review process typically takes 120 to 170 business days. Examples of Category D projects include large-scale infrastructure/transportation development, construction of a new terminal and projects with multiple potential environmental and community impacts, requiring multiple technical reports. The Category D application fee is $23,625 (taxes included).
Applicants should be aware that for projects that include new buildings or require modifications to existing buildings or structures, a building permit may be required in addition to a project permit. Certain projects may also require regulatory approvals from other authorities in addition to the VFPA. This may include environmental reviews and permits from agencies such as Transport Canada, Environment Canada, and Fisheries and Oceans Canada. In addition to offering guidance on the Project and Environmental Review Process, Bernard LLP can assist applicants in identifying which other regulatory approvals may be necessary.
Karissa Kelln is a Maritime Lawyer with Bernard LLP and can be reached at [email protected]