FAQ - Amendments to the National Energy Board Act and the Canada Oil and Gas Operations Act on Navigation and Navigation Safety

  1. What are the changes related to navigation and navigation safety under the National Energy Board Act and the Canada Oil and Gas Operations Act?
  2. What are some of the key implications of the legislative changes?
  3. When did this change come into effect and how will the transition of responsibilities occur?
  4. How will the legislative changes affect environmental and socio-economic assessments of projects on rivers and other waterbodies?
  5. Do these changes lessen the rigor of the regulatory review of effects on navigation and navigation safety?
  6. Does the NEB have the resources to accommodate these changes?
  7. What would the NEB require companies to do if an incident occurred near a water crossing?
  8. Will projects still need to be submitted to Transport Canada for review?
  9. How does the NEB’s new responsibility affect the Filing Manual requirements?
  10. What is a watercourse crossing?
  11. How does the NEB define navigable waters?
  12. Is there a preferred method for pipeline or power line crossings?
  13. Has the Operations and Maintenance (O&M) notification process changed as a result of the amendments made to the NEB Act related to navigation and navigation safety?

1. What are the changes related to navigation and navigation safety under the National Energy Board Act and the Canada Oil and Gas Operations Act?

As a result of the Jobs, Growth and Long-term Prosperity Act, amendments have been made to the National Energy Board Act (NEB Act) and the Canada Oil and Gas Operations Act (COGOA) related to navigation and navigation safety. These changes require the National Energy Board (NEB) to take into account project effects on navigation and navigation safety for NEB-regulated pipeline and power line crossings of navigable waters before recommendations or decisions are made on applications under s. 52 and 58 of the NEB Act and s. 5.1 of COGOA.

2. What are some of the key implications of the legislative changes?

The amendments to the NEB Act require the NEB to take into account the effects of pipeline and power line crossings of navigable waters. The amendments to the COGOA will require the NEB to take into account the effects of COGOA pipeline crossings of navigable waters. Previously, this had been the responsibility of Transport Canada.

Now that these amendments have come into force, the NEB is the “one window” federal regulator for NEB-regulated pipeline and power line projects that cross navigable waters. The NEB is solely responsible for assessing project effects on navigation and navigation safety on NEB regulated projects. Pipeline proponents will only file one application with the NEB for facilities which cross water bodies. Similarly, persons who are directly affected by a project can rely on the NEB’s review to bring their concerns forward.

3. When did this change come into effect and how will the transition of responsibilities occur?

The change in regulatory responsibilities was introduced in 2012 and came into force on 3 July 2013. Transport Canada and the NEB have entered into a Memorandum of Understanding to ensure a seamless transition of responsibilities It describes how each will co-operate during the transition and provides guidance as to when a project is regulated by the NEB or Transport Canada.

4. How will the legislative changes affect environmental and socio-economic assessments of projects on rivers and other waterbodies?

The NEB conducts an environmental and socio-economic assessment during its review of applications for projects under its jurisdiction pursuant to the NEB Act, COGOA, and where applicable, the Canadian Environmental Assessment Act 2012 (CEAA 2012). The legislative changes with respect to navigation and navigation safety to the NEB Act and the COGOA will be incorporated into the Board’s comprehensive environmental and socio-economic impact assessment. The NEB considers many factors including:

  • physical and meteorological environment
  • soil, soil productivity and vegetation
  • wetlands, water quality and quantity
  • fish, wildlife, and their habitat
  • species at risk or species of special status and related habitat
  • heritage resources
  • human occupancy and resource use
  • traditional land and resource use
  • human health, aesthetics and noise

NEB staff currently assesses the potential effects of pipelines and power lines on human occupancy and resource use, including watercourses under the NEB Act. An environmental and socio-economic assessment considers the likelihood of adverse effects, proposed mitigation measures to protect the environment and the rights and interests of those affected. It also considers the likelihood of adverse effects after the mitigation measures are implemented. The NEB attaches conditions to Board orders or certificates to address any unmitigated impacts. This process also provides an opportunity for public and Aboriginal participation.

Once an environmental and socio-economic assessment has been conducted, the NEB may make its decision or recommendation under the NEB Act or the COGOA.

5. Do these changes lessen the rigor of the regulatory review of effects on navigation and navigation safety?

No. The NEB will take into account navigation and navigation safety for NEB-regulated pipeline and power line projects that cross navigable waters with the same rigor as previously carried out by Transport Canada. The NEB conducts independent, fair and publically accessible regulatory review processes for projects under its jurisdiction. The NEB imposes or recommends terms and conditions on project approvals, as well as inspects and verifies compliance in order to protect the safety of Canadians and the environment.

6. Does the NEB have the resources to accommodate these changes?

Yes. NEB staff currently assesses the potential effects of pipelines and power lines on human occupancy and resource use, including watercourses under the NEB Act. Under the COGOA, NEB staff currently participate in the environmental assessment processes carried out by Northern Boards / Committees that assess oil and gas project effects on navigation and navigation safety.

7. What would the NEB require companies to do if an incident occurred near a water crossing?

In the event of an incident, the NEB will assess the situation including any potential impacts to people and the environment, as well as monitor the company’s response. The NEB may take immediate action to protect human life or property using the full suite of enforcement tools available. If the incident results in a spill of hydrocarbons, the NEB will also verify that a regulated company conducts a complete remediation of any environmental effects resulting from the incident. The NEB will not consider clean-up to be complete until it is satisfied that there has been full remediation of the site of all environmental effects. The NEB incident investigation will determine the root cause of the incident and will require corrective actions be taken to prevent reoccurrence. For more information please see the Board’s Remediation Process Guide.

The NEB holds regulated companies accountable for anticipating, preventing, mitigating and managing incidents of any size or duration and are required in our Regulations to have Emergency Response Plans. We expect regulated companies to develop a strong safety culture as part of their management system. Any release of product is considered unacceptable by the Board.

8. Will projects still need to be submitted to Transport Canada for review?

No. Now that these amendments to the NEB Act and COGOA have come into force, Transport Canada will no longer be involved in the day-to-day consideration of NEB-regulated pipeline and power line projects.

9. How does the NEB’s new responsibility affect the Filing Manual requirements?

The NEB’s Filing Manual and Electricity Filing Manual have been updated to guide applicants regarding the information that is required for the NEB to assess project effects on navigation and navigation safety.

10. What is a watercourse crossing?

A watercourse crossing refers to permanent or temporary structures that are or will be constructed in, on, under, over, through or across a water body.

Watercourse crossings are common along Canadian pipeline routes. These particular locations merit focus because of the associated environmental sensitivities, and complex design and installation activities.

11. How does the NEB define navigable waters?

The changes to the NEB Act and COGOA require the NEB to take into account the impact of the project on navigation and navigation safety. Under the NEB Act, “navigable water” has the same meaning as in the Navigable Waters Protection Act (NWPA), or the Navigation Protection Act (NPA) when that Act comes into force: “It includes a canal and any other body of water created or altered as a result of the construction of any work.”

For the purposes of practical application, the NEB intends to follow Transport Canada’s longstanding practice of being guided by the following: Navigable water will be considered as any body of water capable, in its natural state, of being navigated by floating vessels of any description for the purpose of transportation, recreation or commerce, and may also be a human-made feature such as a canal or reservoir.

The changes to the NEB Act do not restrict the NEB’s consideration of the impacts of a project on navigation and navigation safety to the schedule of “navigable waters” that is proposed for inclusion in the Navigation Protection Act, once that Act comes into force.

12. Is there a preferred method for pipeline or power line crossings?

Industry best practices to cross watercourses include using trenchless methods or working in fully dry conditions. NEB-regulated companies are required to have management systems that anticipate, prevent, manage, and mitigate impacts to human safety and damage to the environment or property. Management systems give companies the flexibility to select the most appropriate methods provided they satisfy the NEB’s objectives for safety and environmental protection.

13. Has the Operations and Maintenance (O&M) notification process changed as a result of the amendments made to the NEB Act related to navigation and navigation safety?

The notification process for O&M activities remains the same.

With respect to the NEB’s decision making, as it relates to O&M activities, it must take into account the effects on navigation and navigation safety, as is the case when the Board considers O&M activities in the context of the pipeline’s original application under s. 58 order or s. 52 certificate. Works that are physically or operationally connected to pipelines are to be considered by companies when providing O&M notifications. Companies should provide information, in their O&M notification, on potentially navigable waterbodies that may be affected by O&M activities and proposed mitigation to reduce or eliminate effects.

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