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A navigable waterway is defined as being any body of water capable of being navigated by floating vessels of any description for the purpose of transportation, commerce or recreation. This includes both inland and coastal waters. The authority to determine the navigability of a waterway rests with the Minister of Transport or his/her designated representative.
Projects in which construction has the potential to substantially interfere with navigation are dealt with under Subsection 5(1) and require a more formal Approval Process. Initial submissions for this approval include a letter of application, site and construction drawings, authorization by owner and environmental assessment documentation.
In addition to TC approval, watercourse crossings of an international or interprovincial pipeline are subject to review under the National Energy Board (NEB) Act. More details regarding this approval are provided in Section 2.1.3.
The National Energy Board Act is an independent federal agency established in 1959 by the Parliament of Canada to regulate international and interprovincial aspects of the oil, gas and electric utility industries. The NEB’s purpose is to promote safety, environmental protection and economic efficiency in the Canadian public interest within the mandate set by Parliament in the regulation of pipelines, energy development and trade. Under the NEB Act, the NEB has assumed a mandate for environmental protection as a component of the public interest. The NEB also has responsibilities under the CEAA to ensure that projects receive appropriate levels of assessment before proceeding. The NEB’s environmental responsibility includes ensuring that the environment is protected during planning, construction, operation and abandonment of energy projects within its jurisdiction.
Environmental assessments conducted by the RA must consider cumulative effects caused by the project in combination with other projects or activities that have been or will be carried out. Cumulative effects evaluations consider the combined effects now known to take place over larger study areas and longer time frames. The level of effort should be appropriate to the number of crossings being considered, other existing watershed disturbances, and the combined risk to fish and fish habitat. Additional information is provided in Section 4.3.3 of this report.
2.1.6 Canada Oil and Gas Operations Act The Canada Oil and Gas Operations Act is administered by the NEB. The Act applies to the exploration, drilling, production, conservation, processing and transportation of oil and gas in the Northwest Territories, Nunavut, Sable Island, or offshore waters of Canada (not including interprovincial and international transmission pipelines, which are regulated by the NEB Act). Proponents are required to submit an application, as per the regulations, to the NEB, for a watercourse crossing in these areas. Proponents operating in Nova Scotia and Newfoundland and Labrador will also have to recognize the Atlantic Accords between the federal government and these provinces.
2.1.7 Species At Risk Act
2.1.8 Migratory Birds Convention Act The Migratory Birds Convention Act is administered by Environment Canada, Canadian Wildlife Service. The Act implements a treaty between Canada and the United States that coordinates a system to prevent the indiscriminate harvest or destruction of migratory birds. The Act specifically prohibits the destruction of the nest, eggs and young of migratory birds but does not specifically protect habitat.
2.2 Provincial and Territorial Jurisdictions Each provincial and territorial jurisdiction has various legislation, regulations, Codes of Practice, policies and guidelines affecting watercourse crossings.
Provincial and territorial jurisdiction generally provides for the approval and regulation of the construction, operation and abandonment of oil and gas pipelines by provincially regulated proponents for a pipeline contained within the boundaries of one province. Interprovincial or international pipelines are also regulated at a federal level under the NEB (see Section 2.1), but may still require provincial approval and need to follow provincial legislation.
Most provinces and territories require a permit, license and/or other authorization to use, affect or potentially affect, surface water and/or make alterations to stream beds and banks. The review of applications to alter stream beds and banks will involve the appropriate provincial fisheries management agencies and may include DFO depending on the agreement the province or territory has with DFO (see Section 2.1 for more detail). Various conditions regarding construction schedule and techniques as well as required mitigative and restoration measures are usually appended to the approval document. The issuance of a permit or license generally does not exempt the applicant from the provision of any other applicable provincial or federal legislation, or any other processes of law including municipal by-laws.
The bed and banks of a watercourse are, in most instances, considered public lands in all provinces and territories in Canada. Proponents must apply to the appropriate provincial or territorial land agency for approval to cross these lands.
An overview of the regulatory requirements for each province and territory with regard to watercourse crossings is provided below. These requirements pertain to watercourse crossings only and it is assumed that the proponent will apply for any federal or provincial pipeline and/or oil and gas approvals required in addition to those listed above and below.
First Nations self-government, land claims and protocols are an ever-changing consideration in the approval processes. Documenting these requirements and recommendations are beyond the scope of this document. Nevertheless, to facilitate a timely review and approval, it is important that all proponents and regulators become familiar with the relevant agreements and other requirements.
To ensure timely review and approval, it is beneficial that the appropriate applicable First Nations be incorporated into the construction planning process.
The Codes of Practice set out engineering and aquatic environment protection standards that must be met for the construction of a pipeline or telecommunications line crossing a waterbody or watercourse crossing. The owner of the crossing must prepare a plan which includes specifications and written instructions as to when and how the crossing is to be constructed and that the standards of the Codes of Practice are met. There is a requirement that the engineering design for the pipeline or watercourse crossing be prepared by a professional engineer. To ensure that the aquatic environment is protected, any adverse impacts on the aquatic environment resulting from the construction of the crossing, must be fully mitigated. The proponent/owner must follow Schedule 1 of the Codes of Practice or have a qualified aquatic environment specialist prepare a plan that would ensure that the aquatic environment is protected. Background information on the Codes of Practice can be obtained from AENV.
Additional permits and approvals for pipeline associated watercourse crossings required under the Environmental Protection and Enhancement Act and the Public Lands Act, are discussed below.
Conservation and Reclamation (C&R) approval is required under the Environmental Protection and Enhancement Act for all Class 1 pipelines (pipeline index = mm O.D. x km ≥2690) in the White Area and requires proponents to submit C&R report. Class 2 pipelines (pipeline index 2690) in the White Area do not require a C&R approval but are still subject to AENV Guidelines (Alberta Environmental Protection (AEP) 1994a,b,c). An Environmental Field Report
All provincially regulated oil and gas projects are reviewed by the B.C. Oil and Gas Commission. Proponents must complete consultation with government and stakeholders and submit an application form to the Commission. The Commission will then assess the project, conduct further consultation if required and provide a decision or approval for the project. If an environmental assessment is triggered under the Environmental Assessment Act, approval from MOE will be required prior to submitting the application to the B.C. Oil and Gas Commission.
The Fish Protection Act provides for the protection of water flows for fish, designation of "sensitive streams" requiring stronger management measures,
In B.C., all watercourses are considered to be fish-bearing or have the potential to be fish-bearing unless proven otherwise (generally with at least two sampling seasons). Proponents must conduct a fisheries assessment for each watercourse crossing in which instream construction will take place. Fisheries assessments are also advised for bored or horizontal directionally drilled crossings where a contingency plan with instream construction will be initiated if drilling is not successful. Fisheries assessments must be conducted in accordance with recognized fish and fish habitat sampling methods and standards (Resources Inventory Committee (RIC) 1997, 1999, 2001; B.C. Forest Service 1998).
Under the Water Rights Act, a proponent must obtain a license to use or divert water in any matter, or to construct any works that may divert water. The permit or license application is made to the Water Branch of the Department of Water Stewardship. The Fisheries Branch also reviews the application and will provide recommendations based on fishery resources considerations.
Fish habitat management is coordinated between federal and provincial levels in Manitoba by a Memorandum of Understanding between Fisheries and Oceans Canada and Manitoba Conservation. The Memorandum of Understanding establishes the Canada/Manitoba Fish Habitat Committee that has the mandate of developing clear, concise and coordinated principles for fish habitat management by Canada and Manitoba.
2.2.4 New Brunswick
DFO retains direct management control of fisheries in New Brunswick. However, authorization for watercourse alteration is required from the New Brunswick Department of Environment and local government through the Watercourse and Wetland Alteration Permit. The New Brunswick Watercourse and Wetland Alteration staff will review the Application and may request input from DFO and/or the New Brunswick Department of Natural Resources. No separate applications to these agencies are required, but both agencies are responsible for their own legislation and attainment of their goals and objectives. The New Brunswick Department of Natural Resources is responsible for the Crown Lands Act, the Quarriable Substances Act and the Fish and Wildlife Act.
2.2.5 Newfoundland and Labrador The Newfoundland and Labrador Department of Environment and Conservation is responsible for the approval of pipeline associated watercourse crossings in
Newfoundland and Labrador. Crossings are subject to the following legislation:
• Environmental Protection Act − Environmental Assessment Regulations
• Water Resources Act Pursuant to the Environmental Assessment Regulations of the Environmental Protection Act, pipelines located a distance greater than 500 m from an existing right-of-way must be registered and reviewed by the Minister of Environment and Conservation. An environmental preview report may be required to determine whether further environmental assessment is required or any significant adverse environmental impact is indicated. Alternatively, a proponent may proceed directly with the preparation of an environmental impact statement.
Any alteration of a body of water, including a watercourse crossing, is an undertaking requiring approval under section 48 of the Water Resources Act. The approval must be obtained from the Department of Environment and Conservation, Water Resources Management Division and the application requires pertinent information relating to engineering, hydraulic design, site features, construction operations and anticipated engineering implications.