*Refining Thresholds under the B.C. Environmental Assessment Reviewable Projects Regulation * *Chris Rolfe and Andrea Finch * *West Coast Environmental Law Association <../../about> * *for Review on Implementation of the BC /Environmental Assessment Act/ by Barry Saddler* ------------------------------------------------------------------------ Introduction This brief discusses some concerns of the West Coast Environmental Law Association ("WCELA") with regard to the /Reviewable Projects Regulation/ (the "/Regulation") /of the B.C. /Environmental Assessment Act /("/BCEAA/")/. /The brief is presented to Barry Sadler, a private consultant mandated to evaluate implementation of /BCEAA/ by the B.C. Environmental Assessment Office (EAO). This brief is supplemental to that authored by the B.C. Environmental Network's Environmental Assessment Caucus in May 1997. WCELA endorses the recommendations of the Caucus and echoes the comment that the review process under the /BCEAA/, although deficient in some respects, is a vast improvement over previous assessment practices. We hope this brief will assist in improving practices even further. Since only implementation is under review, we attempt here to identify some of the problems with the /Regulation/'s current thresholds and to recommend changes to them consistent with the statutory scheme of the /BCEAA/. We have borne in mind the clear intent of the /Regulation's/ drafters to restrict environmental assessment to the most significant projects. In our view, there are projects with significant environmental impacts which ought to be caught by the current /Regulation/, but which fall through cracks in the legislation. We provide some examples of this to illustrate our comments, without intending our review to be an exhaustive one. We then make recommendations which attempt to fill in some of the regulatory gaps. It should be noted that, generally speaking, our view is that the numeric thresholds in the /Regulation/ are too high and exclude from assessment many properly reviewable projects. However, given that the scope of review is limited to implementation we have confined our recommendations to thresholds that our consistent with reviewing projects equal or greater in potential impact to those currently assessed. With the reforms we do propose, we recognize the tension between, on the one hand, the desire for certainty and ease of application; and, on the other, the necessity to capture the most significant developments. Our criticisms of the /Regulation /can be categorized under the following headings: * /Illogical exclusions: /Projects are excluded from assessment on the basis of factors which have no bearing on environmental impact. * /One-dimensional thresholds: /Thresholds in the /Regulation/ typically consider only one aspect of a project, ignoring many factors which are equal or better indicators of environmental impacts and which could be easily included within thresholds. * /Incrementalism: /Often, proponents can expand in increments to avoid assessment of a project which would otherwise be caught by the /Regulation/. While these problems exist throughout all eight Parts to the /Regulation; /we give examples here from three areas -- highways, mining projects and oil/gas pipelines -- to point out the need for greater acuity in assessment thresholds. We also suggest that the power to designate a project subject to environmental assessment be de-politicized, by delegating that power to the Environmental Assessment Office and making it subject to defined criteria. I. Highways A. Environmental Significance Highways are of significant environmental concern for a number of reasons. They: * alter drainage patterns, both by blocking streams and ground water drainage patterns, and by increasing the impermeable surfaces so that timing of water flows are changed; * increase noise levels and disturbance; * change demand for transportation services. Numerous studies show that use of single occupancy vehicles and trips made by drivers increase as more highway space becomes available. Increased use of single occupancy vehicles in turn affects air quality and energy use; and * increase public access to a region, particularly in rural areas, increasing environmental pressures from hunting and recreational use. B. Current Threshold Under subsections 46(1) and (3) of the /Regulation/, the construction or widening of public highways is a reviewable project if it involves over 20 contiguous kilometres and involves at least two new paved lanes of traffic. C. Comments /(1) Illogical exclusions/ Here is one of the clearest examples of an illogical exclusion. Subsection 46(5) of the /Regulation/ excludes any "arterial or secondary highway", as those are defined in the /Highway Act/. As well, unpaved and private roads are excluded. It appears that, taken together, these exclusions render section 46 virtually meaningless. Section 27 of the /Highway Act/ defines arterial and secondary highways as highways that are designated as arterial or secondary by Order-in-Council. WCELA has asked the Ministry of Transportation and Highways for a listing of arterial and secondary highways, but has not received such a list. However, according to staff at the Ministry of Transportation and Highways, _almost all numbered highways in the province are either arterial or secondary_. In addition, many less significant roads qualify as secondary highways. For instance, according to one Ministry representative, roads like Lonsdale Avenue in North Vancouver, Fort Street in Victoria and West Saanich Road in Victoria may be classified as secondary roads. Thus, the impact of section 46(5) is, in effect, to exclude all roads that one would normally think of as being `highways', plus a number of additional roads. The exclusion of arterial and secondary highways in section 46(5) is illogical. First, the very fact that a highway is designated as arterial suggests that it is significant. We note that WCELA has informally asked staff at the Ministry of Transportation and Highways, the Transportation Financing Authority and the Environmental Assessment Office for a rationale behind subsection 46(5). None has been provided. Indeed, one staff person thought that the section was contrary to the intent of the committee that helped develop the /Regulation /In our view, section 46(5) should be deleted. It is difficult to imagine a road which is not arterial or secondary, and yet which _is_ public, paved and over twenty kilometres. According to EAO staff, the only highway project reviewed to date (the Greenville-Kincolith road) was triggered because it involved shoreline modifications under s. 37 of the /Regulation. /As another interesting example, under s. 46(5), a project such as the Coquihalla Highway would not be assessed. The only public roads which are not "secondary or arterial", and which are over 20 kilometres, are likely Forest Service Roads or roads built to mining or oil/gas developments (under the /Highway Act/ the latter may be "public" if public money has been spent on them). Aside from the environmental impacts of associated mining and forestry, Forest Service Roads and roads to oil and gas developments are often of particularly significant environmental importance because of the impacts they have on wildlife corridors and recreational or hunter access. Forest Service roads are a significant part of the transportation infrastructure of B.C. and should be subject to the same rules as numbered highways. However, these roads are not caught by section 46 because they are not paved. There appears to be no rationale for excluding these roads simply because they are not paved. Section 46 should apply to paved two-lane roads, and to all industrial roads as defined under the /Highway (Industrial) Act. / Similarly, the limitation of section 46 to _public_ roads should be removed. There is essentially no difference between the environmental impacts of a private road and a public one. This change would also ensure that major, environmentally significant roads associated with a mine or other green fields development would be assessed, regardless of whether the mine itself is also assessed. In the case of industrial roads to mine sites, these roads may not be assessed either because the mine falls below mining thresholds, because a road is not part of the initial plan or because a road is not included in the scope of the assessment. For instance, several people we have spoken to have suggested that the White Gold Resources proposed wollastonite mine in northwestern BC will eventually need a road (even though the initial proposal is for a fly-in operation). An example indicating the need to eliminate references to public and paved from section 46 is the the approximately 100-kilometre gravel roadto the Golden Bear gold mine. This is nominally a private road, but it is our understanding that the gate is stuck open. Semi-trailer trucks run on the road to and from the mine, so the road is big enough for two "lanes" of traffic. One local advises that area residents frequently use the road for hunting and recently, it was used by an outdoor leadership school as a pick-up point. In effect, it is a "public road". It is also one which, at five times the size limit of the /Regulation,/ has had significant, serious and lasting effects. This type of road should be assessed. _*Recommendation #1:*_ *Section 45 and subsection 46(5) of the /Regulation /should be deleted. References in section 46 to `arterial or secondary highways' and to `public' roads should also be deleted. Construction of new industrial roads over 20 contiguous kilometres should be added to s. 46(1).* /(2) One-dimensional thresholds/ Aside from the exclusions which appear to make section 46 virtually meaningless, the main threshold within the section is simply `construction of two or more new lanes of over 20 kilometres'. This parameter fails to consider the environmental sensitivity of the area being traversed or accessed. The /Regulation/ should be amended to take into account the environmental significance of the project location. In regard to section 46, this could be achieved by an amendment that distinguishes between roads that open up new areas, and those on existing rights of way. For instance, the /Comprehensive Study List /under the /Canadian Environmental Assessment Act /distinguishes between roads on new rights of way and other roads (see section 29). WCELA recommends that a more stringent threshold be developed for roads on new rights of way. Second, the thresholds should depend on the environmental sensitivity of the area. Other environmental assessment regimes accomplish this. For instance, the /Canadian Environmental Assessment Act/'s /Exclusion List Regulation /distinguishes between projects in- and outside of national parks, and the Manitoba environmental assessment process applies to new roads in sensitive areas.^1 <#fn_1> The B.C. /Regulation /could be amended to define "environmentally sensitive areas" to which more strict thresholds apply. Environmentally sensitive areas could be defined to include: * provincial parks, ecological reserves, wildlife management areas and wildlife sanctuaries as designated under the /Park Act, Ecological Reserve Act or Wildlife Act/; * class S1 or S2 streams (as defined in section 72 of the /Forest Practices Code Operational Planning Regulation/); * any area designated as being a critical habitat area or low intensity resource management zone under Land and Resource Management Plans or Commission on Resources and Environment plans; and * areas designated as Landscape Units or Sensitive Areas under the /Forest Practices Code./ We note that, in arguing for more stringent thresholds in environmentally sensitive areas or along new right of ways, we do not believe existing thresholds should be reduced in other areas. _*Recommendation #2*_:*Section 46 of the /Regulation/ should be amended to distinguish between roads that open up new areas and those on existing rights of way, with more stringent thresholds applying to the former. It should also define "environ-mentally sensitive areas" and again, apply more stringent thresholds to roads that cross environmentally sensitive areas.* /(3) Avoiding assessment by incrementalism/ If a roadway falls under section 29, it will be excluded from an environmental impact review if it is built in segments, each of which is 19 kilometres. It will also be excluded even if it is part of a planned network of roads which is significantly over 19 kilometres in total, but which involves segments of under 20 kilometres. The problem of incrementalism is very real. The broadening of the Trans Canada Highway between the Cape Horn Interchange and Boundary Road is not captured by the /Regulation /because it only 16.5 kilometres in length. However, the plan to which involves extending the widening to 200th Street in Surrey, a much greater total distance.^2 <#fn_2> The widening is also part of a larger plan to expand the Lower Mainland highway network. This will have major implications for transportation and growth patterns in the Lower Mainland, none of which is being assessed because the development is in increments.^3 <#fn_3> *_Recommendation #3_: Section 46 should be amended to provide for assessments of highway expansions which are under 20 contiguous kilometres if they constitute part of a planned series of expansions or network of expansions which is in total more than 20 kilometres. * II. Mine Projects A. Environmental Significance Mines can result in a variety of significant and potentially irreversible impacts on the environment. These impacts include: acid mine drainage; the introduction of heavy metals and other toxics into the environment, either through tailings or processing methods; and the highly disruptive nature of activities such as waste deposition or open pit mining. Further impacts are caused by the infrastructure associated with these projects, including power generating facilities, such as dams, and road construction. B. Current Threshold Under Part 2 of the /Regulation,/ there are different subsections for coal mines, mineral mines, sand and gravel operations, placer mines, construction stone quarries and off-shore mines. However, although numeric thresholds are different for each, the /Regulation/ deals with each class of mine with similar assessment criteria. Both mine construction and expansion are intended to be caught by the /Act/. For newly constructed mines, the threshold for an impact assessment is the mine's production capacity for mineral ore, in tonnes per year. Expansions are captured if they bring a mine over the annual production capacity threshold for construction _and_ if they disturb a prescribed area of land - this varies according to mine type. C. Comments Ideally, the /Act/ should contain a screening process for all mines. However, given the constraints of the legislation as worded, and the limits of this brief, we address here the stated parameters of thresholds while acknowledging that they have inherent limits to effective assessment. Clearly the thresholds that do exist should on no account be lowered. To our knowledge, all of the mines which have undergone an EA assessment are very significant projects for which a legislated environmental assessment process was important. The /BCEAA /process is superior to its predecessor and the present alternative. However, we are concerned that significant developments may not be assessed. /(1) One-dimensional thresholds/ The nature of mining projects is such that they should be reviewable in their entirety. As it stands, Part 2 excludes consideration of many environmentally significant parameters. These include: * the amount of surface area disturbed by mining and tailings; * the location of the mine (eg. environmentally sensitive area); * the nature of waste and/or tailings likely to be generated by the mine (eg. the risk of acid mine drainage, and the risk of transport of heavy metals to ground or surface water) * the treatment of those tailings,(i.e. will treatment lead to the creation of toxic sludge? will tailings be treated with cyanide?) * whether the mine involves construction of power generating facilities and roads. A number of refinements can be made to thresholds for mines. The first refinement is consider more parameters than simply mineral production. Different mines will have different waste:ore ratios. Higher waste to ore ratios are indicative of greater environmental impact. Thresholds could be refined to consider a combination of ore production capacity and waste to ore ratios. Alternatively, thresholds can take into account the surface area affected by a development (this includes tailings pond, orverburden disposal areas, pit area, and associated developments). An area-based trigger for assessment should be a supplement to the throughput trigger, ensuring assessment of mines that affect large areas. Another area where thresholds can be improved is with regard to environmentally sensitive areas. We do NOT mean to propose that existing thresholds should be lower for mines outside of these areas. However, in the absense of a screening process, we believe that proximity to environmentally sensitive areas should be used as a reason for assessment of facilities that fall below generally applicable thresholds. One example of a project that falls through the legislative cracks is the proposed Englishman Aggregates Gravel Pit. With a planned capacity of roughly 250,000 tonnes per annum, the Pit falls significantly below the /Regulation/ threshold (500,000 t.p.a.) but is extremely significant because it is upstream of the Qualicum Wildlife Management Area and the Parksville municipal water intake, is adjacent to a prime salmon stream and is located 1.1 kilometres from a provincial park. According to the group Voices of the Englishman River, local municipalities and regional districts are opposed to the project, the Parks Branch would prefer it not be developed and the Department of Fisheries and Oceans has concerns about the proponent's plan. Yet, under the current wording of the /Regulation/, no environmental assessment is required. This type of problem could be resolved by refining the thresholds in order to take into account the location of the mine (for instance, projects could be subject to more stingent thresholds if located within 2 kilometres an environmentally sensitive area - see suggested definition above - or within 0.5 kilometres of class S1, S2 or S3 streams (as defined in section 72 of the /Forest Practices Code Operational Planning Regulation./) It would also be helpful if operational definitions were developed for mines that pose high risks of acid mine drainage (AMD) or heavy metal leaching and that these mines be automatically subject to environmental assessment. What is intended here is an `early warning system' where preliminary tests for AMD are required for all proposed mines. If a high potential for AMD is detected, the project goes forward for review, regardless of the size of the mine. If the risk of AMD were not detected at this stage, this would not exclude the project from review - its inclusion or exclusion would depend on other thresholds. As well, any mines involving access roads that meet thresholds for highways (discussed above) ought to be assessed. Another refinement of Part 2 could involve a shift from an annual to a daily production capacity threshold. Often the environmental impacts of a mine are related to its associated infrastructure and maximum levels of activity. Maximum levels of activity will be greater with larger daily capacity and, in some cases, infrastructure will be greater for mines with larger daily capacity. The difference between annual and daily capacity becomes an issue for mines operations that extend for only a few months a year. For instance, the White Gold Resources wolastinite mine in northwestern B.C. will likely operate only a few months per year, but has a planned capacity just below the annual threshold set out in the Regulation. The project includes construction of a 28 kilometre slurry pipeline in the area of the lower Iskut River - a previously undeveloped watershed. *_Recommendation #4_: * *WCELA recommends that* *a) the thresholds in the /Regulation /should be amended to reflect the area disturbed by a mine and the ore/waste ratio;* *b) the thresholds in the /Regulation /should be removed for mines that are close to environmentally sensitive areas;* *c) the thresholds in the /Regulation /should be amended to reflect daily or monthly capacity (i.e. 2000 tonnes per month or 70 tonnes per day in the case of mineral mines) rather than annual capacity;* *d) consideration should be given to a testing method which can be applied to ensure that any mine with an easily identified acid mine drainage potential be subject to assessment. * /(2) Avoiding assessment by incrementalism/ Finally, the provisions of Part 2 invite incrementalism if a proponent wishes to avoid an impact assessment. A mine can far exceed the construction threshold as long as it does so in increments. The White Gold Resources mine is just one example. It would fall under s. 20(1) of the /Regulation/, as a mineral mine, if its annual mineral ore production capacity were 25,000 tonnes or greater. The proposed annual tonnage listed for the project is 24,000. This suggests that the proponent has designed the project to avoid environmental assessment. A subsequent expansion will not be subject to environmental assessment unless the throughput capacity is exceeded _and_ the expansion will disturb the prescribed area of land. A second expansion can involve a area that when added to the first expansion exceeds the prescribed area for a single expansion. _*Recommendation #5*_: *Incrementalism should be avoided by making a mine expansion a reviewable project if the expansion is one that would, if part of the initial plan, have put it over thresholds for construction. * III. Oil and Gas Pipelines A. Environmental Significance The impacts of oil and gas transmission pipelines in British Columbia have been documented in several sources. These developments have changed the face of north eastern BC, as rights of way cut across many areas of previously undeveloped land. Pipeline construction may involve excavation, dynamiting, cutting or burning of vegetation, construction of trenches for waterways and movement on and off-site of heavy machinery and construction materials. Acid drainage is an additional concern. The construction of a pipeline may affect wildlife habitat, migration and reproduction. It affects water quality and flow. Most importantly, multiple pipeline expansions involve linear developments covering vast tracts of previously untouched land. B. Current Threshold Under section 29 of the /Regulation/, an impact assessment is required if the pipeline has the annual capacity to transport an energy resource that could, by combustion, yield 16 PJ or more of energy. In other words, the quantity of oil or gas in the pipeline is the sole trigger for an environmental review. C. Comments /(1) One-dimensional thresholds/ The concern with oil and gas projects is much more the amount of surface area disturbed and the impingement by new rights of way, than it is pipeline capacity. Other assessment schemes acknowledge this. For instance, the /CEAA Comprehensive Study List Regulation /uses `kilometres of new right of way' as its threshold for oil and gas pipelines. Another example of thresholds for pipeline assessment is the Alberta /Environmental Protection and Enhancement Act, /which excludes pipelines only if the product of their diameter (in millimetres) multiplied by their length (in kilometres) is over 2690. Moreover, where a number of pipelines are being built as part of the same project, their individual totals are added together. We recommend using this approach, or a combination of this approach plus measurement of the capacity of pipelines. *_Recommendation #6_: The /Regulation/ should be amended to add the thresholds of surface area and new right-of-way area covered by the project to section 29.* IV. Projects not captured by thresholds - the "safety net" Any environmental assessment regime which relies on thresholds rather than a screening process will likely miss significant projects. Although we can try to redress this problem by refining thresholds, these will inevitably be somewhat crude indicators of environmental impacts. In recognition of this weakness, section 4 provides something of a safety net for projects which fall between the cracks of the /Regulation. /Unfortunately, the section is rarely used, possibly because there is limited guidance as to when the designation power should be invoked. Further, the fact that the power is vested in the Minister makes it highly political. It is our understanding that the designation power has been used only once in the history of the /Act/. Making the designation power less political and subject to defined criteria would enhance its effectiveness. *_Recommendation #7_: Section 4 of /BCEAA /should be amended by adding a duty on the Executive Director of the EAO to designate a project as reviewable if, on the evidence available, she is of the opinion that:* *(a) the project may have a significant adverse effect; or* *(b) the designation is in the public interest. * *Generic criteria for the Executive Director's evaluation process should be developed to support this power.* Conclusion In summary, we urge the government to revisit the thresholds contained in the /Regulation /to ensure that projects of significance are assessed. All thresholds should be reviewed to eliminate illogical exclusions, one-dimensional thresholds that are poorly related to environmental impacts, and thresholds which allow incrementalism. We hope the above comments are useful and will be fully considered. Any questions regarding our comments can be addressed to Chris Rolfe at 604-601-2512. Endnotes 1. <#fn_1_up> See "Application of the Review Process under Section 3 -- Listing of Proposed Reviewable Projects and their Size Thresholds" background paper for BC Environmental Assessment Project, at 66. 2 <#fn_2_up>. Backgrounder to "Premier Announce Plan for Lower Mainland HOV Network", a Press Release from Office of the Premier, dated September 7, 1995. 3. <#fn_3_up> Ibid. Although the road widenings are part of a so called HOV network, their ability to encourage alternatives to single occupancy vehicles is limited because all motorcycles or cars with two or more persons are classified as HOVs. Government information sheets on the HOV network suggest that a "three plus" occupant is required to give an incentive to transit or car pooling: "High Occupancy Vehicle Lanes, Questions and Answers". ------------------------------------------------------------------------ <../../default.cfm> West Coast Environmental Law web site <../../default.cfm> -- Last modified on 11/12/03.