British Columbia Province Environmental Review (9-BC-a)
- Undertake or carry on any activity that is a reviewable project under the Environmental Assessment Act; or
- Construct, operate, modify, dismantle or abandon all or part of facilities of a reviewable project.
A bulk transmission project is subject to environmental review pursuant to the Environmental Assessment Act, R.S.B.C. 2002, c. 43 if:
- The Ministry of Environment designates the project as reviewable. Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 6(1);
- The project proponent (developer) requests the project be reviewed and the Ministry of Environment’s Environmental Assessment Office approves. Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 7;
- The project is a new transmission line of 500 kV or more and 40 kilometers or more in length on a new right-of-way;
- The project is a modification of an existing project that results in:
- the rebuilding of all or part of a facility, the replacement of existing towers and a rebuilt facility 500 kV or more. A facility is one or more physical works or structures that have been or will be constructed as part of a project. B.C. Reg. 370/2002, s. 1;
- the addition of one or more electric transmission lines of 500 kV or more within an existing right-of-way; or
- the construction of an extension to a facility of 500 kV or more.
Under the Environmental Assessment Act, R.S.B.C. 2002, c. 43, two ministers are responsible for making the decision on whether or not to issue an Environmental Assessment Certificate. The first ministry is the Ministry of Environment. The other is the “responsible minister,” who is the minister, through their Cabinet position, which is responsible for the activities in a particular sector – in this case for a bulk transmission project that “responsible minister” would be the minister of the Ministry of Energy. Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 1; British Columbia – The Environmental Assessment Act and Associated Regulations Webpage.
The Environmental Assessment Office administers the environmental assessment process under the Environmental Assessment Act and the Act’s regulations and verifies and enforces compliance with the conditions of Environmental Assessment Certificates. Environmental Assessment Office User Guide: An Overview of Environmental Assessment in British Columbia at p. 4. Specifically, the Environmental Assessment Office leads the environment review and prepares an assessment report detailing the findings of the review. The report, along with the project application, is referred to the Ministry of Environment and the Minister of Energy who reviews and decides on whether to issue an Environmental Assessment Certificate. Environmental Assessment Office User Guide: An Overview of Environmental Assessment in British Columbia at p. 4.The Ministry of Environment and the Ministry of Energy reviews bulk transmission projects pursuant to British Columbia – Environmental Assessment Act, R.S.B.C. 2002, c. 43 and British Columbia Regulation 370/2002, Reviewable Projects Regulation.
Province Environmental Review Process
9-BC-a.1 – Contact the Environmental Assessment Office (EAO)
The developer should contact the Environmental Assessment Office (EAO) to determine if the proposed project is reviewable pursuant to the Environmental Assessment Act and if so to discuss the environmental review process details necessary to obtain Environmental Assessment Certificate (Certificate). The developer and EAO at this time could also discuss whether a project is a potential candidate for a Certificate exemption.
9-BC-a.2 – Project Description
If a proposed project is reviewable, the developer must submit a Project Description to the EAO sector lead. It is important that the project description contains enough information to allow EAO to confirm if the project requires an environmental assessment or whether an exemption may apply. The developer should follow the EAO’s Guidelines for Preparing a Project Description and include any additional information required for consideration of Request (to be discussed with EAO). EAO’s Guidelines for Preparing a Project Description at p. 3.
Note: For proposed projects expected to require a federal environmental assessment, the Canadian Environmental Assessment Agency also requires a project description. Developers should consult the federal Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 for more information. Usually a single project description can be developed that will meet the requirements of both EAO and the Canadian Environmental Assessment Agency. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 10.
9-BC-a.3 to 9-BC-a.5 – Review Project Description
EAO must review the Project Description for completeness and to determine if an Environmental Assessment is required. Following review and acceptance of the Project Description, EAO issues a Section 10 Order directing that the reviewable project requires an Environmental Assessment or that the project can proceed without an assessment and is exempt from requirement for a Certificate. EAO’s Guidelines for Preparing a Project Description at p. 3, 10; Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 10.
If EAO considers that a reviewable project may have a significant adverse environmental, economic, social, heritage or health effect, taking into account practical means of preventing or reducing to an acceptable level any potential adverse effects of the project, may determine that an Environmental Assessment Certificate is required for the project, and the developer may not proceed with the project without an assessment. Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 10(1)(c).
Note: If EAO may also refer the project to the Minister for a determination pursuant to Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 14
9-BC-a.6 to 9-BC-a.7 – Is the Project a Potential Candidate for an Exemption?
The Executive Director of EAO may exempt a proposed project from the requirement of an Environmental Assessment Certificate if they determine that the project will not have a “significant adverse environmental, economic, social, heritage, or health effect.” British Columbia – Environmental Assessment Act, R.S.B.C. 2002, c. 4, s. 10(1)(b)-(c). To determine if a proposed project is a potential candidate for an exemption, the EAO considers factors such as:
- Are plans for the proposed project developed in sufficient detail that the potential for significant adverse impacts can be determined?
- Does the understanding of the potential for significant adverse effects rely on substantial field work, detailed modelling, or other technical analysis?
- Will the proposed project rely largely on existing infrastructure and facilities?
- Is there (or has there been) a pre-existing activity at the proposed project location that is conducive to ongoing activity, e.g. brownfield development?
- Are there relevant conclusions from past regulatory processes; or is there a subsequent regulatory process that ensures appropriate mitigation measures will be required? What efforts has the proponent made to consult with Aboriginal groups? What issues have Aboriginal groups identified and what measures has the proponent proposed to mitigate these issues?
- What level of public consultation has the proponent undertaken? To what extent has the proponent resolved issues or concerns identified by the public?
If the project is a potential candidate for an exemption request, the developer (proponent) must submit a Formal Exemption Request (Request) to EAO. The Request must include, at minimum, a description of the proposed project in enough detail that the potential effects can be determined. The Request must provide sufficient evidence that there is no potential for significant adverse effects and clearly explain the methodology used to reach conclusions. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 5.
If the project is reviewable and does not qualify for an exemption, go to 9.20.
9-BC-a.8 – Certificate Exemption Process Letter
After the Request is submitted, the EAO provides the developer with a letter outlining the process for considering the Request, the developer’s obligations, and expected timelines for key steps. The developer’s request and project description will be posted on the electronic project information center on the EAO website - e-PIC website. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 6.
9-BC-a.9 – Consult with Government Agencies and Aboriginal Groups
EAO consults relevant government agencies (provincial, federal and local levels) and potentially affected Aboriginal groups regarding the Request and the potential for adverse effects. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 6.
9-BC-a.10 – Comment on Request (If Applicable)
EAO may solicit public comments on the Request if it is determined appropriate. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 6.
9-BC-a.11 to 9-BC-a.13 – Provide Questions and Comments
EAO provides questions or comments received from agencies and Aboriginal groups to the developer. The developer must respond to the concerns raised; discuss potential measures to avoid, mitigate or otherwise address potential effects; and seek to resolve the concerns. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 6.
EAO must determine the adequacy of the developer’s responses and identify any gaps or outstanding issues. EAO shares the developer’s responses with relevant government agencies and potentially affected Aboriginal groups. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 6.
9-BC-a.14 to 9-BC-a.15 – Consult with Government Agencies and Aboriginal Groups
EAO works with agencies and Aboriginal groups to determine if specific conditions or mitigation measures are needed to address issues or concerns if the Executive Director of EAO decides to grant a Certificate Exemption. EAO must prepare a Summary of Evaluation Report. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 6.
9-BC-a.16 to 9-BC-a.19 – Review Summary of Evaluation Report for Approval
The Executive Director of EAO reviews the Summary of Evaluation Report to decide on the Certificate Exemption Request. Based on this report and other relevant information, the Executive Director determines whether to issue a section 10(1)(b) Order and, if so, whether conditions are required. In determining whether to approve the request, the Executive Director must consider:
- The potential for any significant adverse environmental, social, health, heritage and economic effects from the proposed project and proposed measures to avoid, manage or compensate for those effects;
- Any potential effects from the proposed project on asserted or established Aboriginal rights, including title or Treaty rights, based on consultation conducted with potentially affected Aboriginal groups, and any accommodation, where required.
The Executive Director may also consider other factors such as:
- Baseline conditions of valued components that would be impacted by the proposed project;
- Whether proposed mitigation measures will rely on proven technologies/solutions;
- The level of confidence in the conclusions of potential effects, including the effectiveness of mitigation measures;
- Whether the combination of this proposed project with other projects in the area would trigger the need for a cumulative effects analysis;
- Relevant conclusions from past environmental assessments and permitting processes;
- The scope and nature of comments received from other provincial agencies, the federal government and/or local governments regarding the potential impacts of the proposed project; *The scope and nature of comments received from potentially affected First Nations regarding potential impacts to their asserted or proven Aboriginal rights and title or Treaty rights; and
- Whether subsequent authorizations will require mitigation measures.
These factors are generally be addressed in the report. If the Executive Director determines that a Certificate is not required, EAO issues an order. EAO advises the developer and other potentially affected parties of the decision. The order and any relevant supplementary information will be posted on the EAO website. At the time the order is issued, the EAO will also issue an invoice to the developer for the required fee. If an exemption with conditions is granted, any required compliance and/or monitoring reports submitted by the developer will be posted to the EAO website. Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b) at p. 7.
9-BC-a.20 – Contact with First Nations
Generally, within days of issuing a Section 10 Order stating that an Environmental Assessment is required, EAO will contact First Nations to discuss their participation in the process. Once EAO determines that an Environmental Assessment Certificate is required the environmental assessment begins. Environmental Assessment Office User Guide at p. 12.
9-BC-a.21 – Consult with First Nations
To facilitate First Nations engagement in the process, the EAO encourages the developer to consult First Nations as early in the process as possible. EAO advises developers to contact First Nations regarding a proposed project before the project formally enters the environmental assessment process. The EAO project lead can help proponents identify which First Nations they should contact. First Nations and proponents may also find the British Columbia First Nations Environmental Assessment Technical Working Group’s Website a useful tool.
9-BC-a.22 – Form Working Group
EAO forms a working group. The working group includes representatives of the Canadian Environmental Assessment Agency, federal and provincial government agencies, First Nations, and local governments. When appropriate, officials from neighboring jurisdictions will also be invited to participate. Environmental Assessment Office User Guide at p. 22.
The working group advises the EAO about issues related to the proposed project’s assessment. Later in the process, it plays a vital role by helping to assess the adequacy of any proposed mitigation measures. The proponent (developer) is not a formal group member of the working group. However, the developer may regularly attend working group meetings to provide information and explain aspects of the project.
9-BC-a.23 – Draft Section 11 Order
If EAO determines that an Environmental Assessment is required, EAO must also issue a Section 11 Order which must provide the scope of the required assessment and the procedures and methods for conducting the assessment, including for conducting a review of the developer’s Application for an Environmental Assessment Certificate. Environmental Assessment Act, R.S.B.C. 2002, c. 43, s. 11. The Order will also set out the required consultation activities and time-frames. Environmental Assessment Office User Guide at p. 23.
9-BC-a.24 to 9-BC-a.25 – Provide Copy of Draft Section 11 Order
EAO generally sends a copy of the draft Section 10 Order to the proponent (developer), the working group, and First Nations for comment. Environmental Assessment Office User Guide at p. 23.
9-BC-a.26 to 9-BC-a.27 – Final Section 11 Order
EAO finalizes the final Section 11 Order after reviewing comments and then posts the final order online. Environmental Assessment Office User Guide at p. 23.
9-BC-a.28 to 9-BC-a.29 – Develop Application Information Requirements
EAO issues a document identifying the issues to be addressed in the assessment and the information that must be included in the Application for an Environmental Assessment Certificate (Application). (e.g., baseline studies, approach to assessing cumulative impacts, etc.) Environmental Assessment Office User Guide at p. 24. EAO must then issue a draft Application Information Requirements document. Environmental Assessment Office User Guide at p. 24.
9-BC-a.30 to 9-BC-a.34 – Publish Draft Application Information Requirements
EAO must post the draft Application Information Requirements document on the e-PIC website issuing an RSS feed to interested parties, specifying a period and process for public written input, and directing the developer to hold a public open house in one or more locations near the project. The public may provide written comments regarding the project and the draft Application Information Requirements for 30 to 45 days. Environmental Assessment Office User Guide at p. 24.
The developer must hold a public open house in one or more locations near the project. The public may provide comments during the open house. Environmental Assessment Office User Guide at p. 24.
9-BC-a.35 – Final Application Information Requirements
After consideration of public comments EAO must issue the Final Application Information Requirements for the Environmental Assessment. The Application Information Requirements generally contain the following core elements:
- A description of the project, including all key project elements;
- Spatial and temporal boundaries of the assessment;
- Consultation that will take place;
- Project setting and characteristics, including a description of a wide range of baseline studies that the proponent will undertake;
- Scope of the assessment, including a list of all potential effects that will beconsidered;
- Methodology for assessing impacts and mitigating effects;
- Assessment of the potential significant adverse effects, including proposed mitigation measures and residual effects; and
- A commitment to provide environmental management systems and monitoring plans.
9-BC-a.36 – Consult with Working Group
The proponent (developer) should seek advice and guidance from the working group early and often about the information it should collect for the Application for an Environmental Assessment and ways to avoid potential impacts and develop strategies to mitigate those impacts when they cannot be avoided. Environmental Assessment Office User Guide at p. 22.
9-BC-a.37 to 9-BC-a.38 – Conduct Studies
After the EAO issues the Application Information Requirements, the proponent (developer) then proceeds with completing the studies and compiling the information outlined in the application requirements. Environmental Assessment Office User Guide at p. 29.
9-BC-a.39 – Application for an Environmental Assessment Certificate
After conducting the required studies and compiling the necessary information the developer must submit a complete Application for an Environmental Assessment Certificate (Application) to EAO. Environmental Assessment Office User Guide at p. 29.
9-BC-a.40 to 9-BC-a.41 – Review Application Materials for Completeness
EAO reviews the Application for administrative and technical completeness. The EAO assesses the adequacy of the proponent’s plans for engaging with First Nations and for public consultation. If the Application does not contain all the information set out in application information requirements, the EAO cannot accept it. The EAO has a maximum of 30 days to complete its screening and may involve the working group and First Nations. If the EAO identifies any deficiencies in the Application, the proponent (developer) must address them and then revise and resubmit the Application. In those situations where there are small errors of omission, these changes can often be completed within the 30-day period, while in other cases the proponent (developer) may have to collect additional information and resubmit the Application for evaluation. Environmental Assessment Office User Guide at p. 30.
9-BC-a.42 – Evaluate Consultation Activities
At the same time the evaluation is being completed, the EAO project lead completes a written evaluation of the adequacy of the public and First Nations consultation activities that the proponent (developer) has conducted or proposes to conduct. Environmental Assessment Office User Guide at p. 30.
9-BC-a.43 to 9-BC-a.45 – Publish Notice of Application
Once EAO accepts the Application as complete, EAO posts it on the e-PIC website so members of the pubic and interested parties can review the Application. The Application is also placed in local libraries near the proposed project’s location. Environmental Assessment Office User Guide at p. 32.
A short time after the Application is placed on the e-PIC website, the EAO initiates a public comment period, typically between 45 to 60 days. One or more EAO-led open houses are held during the comment period, typically in the same communities where a public open house was previously held on the Application information requirements. During these open houses, members of the public have an opportunity to review the Application, provide comments, and ask questions of the EAO and the proponent. It should be noted that while open houses are held in communities in proximity to the proposed project, comments are invited and received from all interested parties and individuals throughout the province. Environmental Assessment Office User Guide at p. 32.
Written comments that are received during the public comment period, whether through the EAO website, faxed to the EAO office, or mailed, are shared with the proponent and posted on the e-PIC website. The EAO does not post verbal comments received at open houses nor the proceedings from these events. As with the Application Information Requirements stage, the proponent (developer) must ensure it records all the comments from the public, agencies, and First Nations in tracking tables. The proponent (developer) must include in this table its proposed response to each issue raised, which may involve clarifications of information in the Application or further commitments that the proponent plans to take to address the issues or concerns raised. The EAO typically requires this tracking table within two to three weeks of the public comment period closing. Once complete, the EAO posts it on the e-PIC website.
9-BC-a.46 – Review Application for Approval
EAO must review the Application for approval within 180 days of receiving a complete Application. Environmental Assessment Office User Guide at p. 30.
During the 180-day Application review stage, the working group plays a key role. Specifically, the EAO will arrange and chair working group meetings and technical sub-group meetings to deal with specific issues (e.g., fisheries, water quality, etc.) as necessary. The proponent (developer) attends the meetings, where appropriate, to discuss substantive issues. In this stage of the process, EAO staff work to facilitate consensus among working group members and the proponent on issues or concerns that have been identified by the working group members, First Nations consultation, or the public. Such consensus can often be achieved through:
- Discussion and information exchange,
- The development or modifications of proponent commitments, and
- Potential modifications to the proposed project itself.
EAO staff also seek to ensure that the EAO has the benefit of the working group’s expertise and perspective to help inform its assessment of potential adverse effects for any issues for which consensus is not achieved between the working group and the proponent (developer). Environmental Assessment Office User Guide at p. 33.
While the EAO frequently encourages First Nations to bring their interests and concerns to the working group for consideration, the EAO will also engage in separate consultations with First Nations in cases where a First Nation declines to participate on a working group or where the EAO otherwise determines that such consultation should be undertaken. Environmental Assessment Office User Guide at p. 33.
9-BC-a.47 to 9-BC-a.48 – Draft Assessment Report
The EAO begins drafting the Assessment Report during the 180-day review period. The report documents the assessment’s findings, including the extent to which concerns have been addressed and whether any issues remain outstanding. The EAO shares its Draft Assessment Report with the proponent (developer), the working group, and First Nations, and seeks their input. The EAO typically provides three weeks for such comment. The Assessment Report also contains information regarding First Nations consultation, including an explanation of whether and for what reasons the EAO has concluded the Crown’s duty to consult and accommodate has been met. Environmental Assessment Office User Guide at p. 34.
In any case where a First Nation does not agree with the Draft Assessment Report’s conclusions, the EAO offers the First Nation an opportunity to prepare a submission that the EAO can provide directly to the responsible ministers when it submits the Assessment Report. Environmental Assessment Office User Guide at p. 34.
9-BC-a.49 – Submit Material to Ministers
EAO must submit Draft Assessment Report and recommendations from the Executive Director (with reasons) as to whether to issue an Environmental Assessment Certificate, and a Draft Environmental Assessment Certificate to the Minister of Environment and the Minister of Energy Environmental Assessment Office User Guide at p. 34.
9-BC-a.50 to 9-BC-a.53 – Review Application Materials for Approval
After the responsible ministers receive the assessment report and related documents, they have 45 days to decide on the Application. They must consider the Assessment Report and the documents that accompany it, and may also consider any other matters they determine are relevant to the public interest when they make their decision. A key factor the responsible ministers will consider is whether the Province has satisfied its legal duty to consult with, and to the extent appropriate, accommodate First Nations. When making their decision, the responsible minsters have three choices. They must either:
- Issue an Environmental Assessment Certificate with any conditions they consider necessary,
- Refuse to issue the Certificate, or
- Require further study or assessment.
Once the responsible ministers make a decision, the EAO notifies the proponent, government agencies (including provincial permitting agencies), and First Nations of the decision. Then, in accordance with the regulations, the EAO posts the responsible ministers’ decision, along with the Assessment Report, the Executive Director’s reasons and recommendations, and the Environmental Assessment Certificate, if issued, on e-PIC. The EAO also posts a notice on its internet homepage under the “News” section.
9-BC-a.54 – Petition for Judicial Review (Optional)
A developer may petition for judicial review by the Appeal Court of British Columbia. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 2]. The Court has discretion to review the petition or not. If the Court finds procedural unfairness, abuses of authority, or unreasonable findings, then it may invalidate the decision and/or remand the matter to the Ministry with instructions for a rehearing. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, ss. 5, 7].
The Court has limited ability to review administrative decisions. It cannot set aside a finding of fact “unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59. The Court cannot set aside discretionary decisions unless they are “patently unreasonable.” For example, it could not overturn a decision because it did not prefer the outcome, but it could overrule a decision “exercised arbitrarily or in bad faith.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59.
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- British Columbia – Environmental Assessment Office Guide: Requesting a Certificate Exemption Under Section 10(1)(b)
- British Columbia - Environmental Assessment Office’s Guidelines for Preparing a Project Description
- British Columbia – The Environmental Assessment Act and Associated Regulations Webpage
- British Columbia – Environmental Assessment Office User Guide: An Overview of Environmental Assessment in British Columbia
- British Columbia First Nations Environmental Assessment Technical Working Group’s Website
- Canada - Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012
- British Columbia Environmental Assessment Office’s Project Information and Collaboration System Website (e-PIC)