Environmental Assessment: Manitoba approaches

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Environmental Assessment: Manitoba approaches
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  The objective ofthis Branch is to ensure that development maintains sustainableenvironmental quality. —  Manitoba Environmental Appeals Branch mission statement  INTRODUCTION Environmental assessment ( EA ) is a central feature ofproject decision making inManitoba.Applying to both public and private undertakings,the legislation for assess-ments is marginally progressive,particularly when looked at in conjunction with thecreation ofa provincial environmental oversight commission and functioningmechanisms to fund public participation in the process.There are,however,signifi-cant shortcomings in both the legislation and its practical implementation.This chapter begins with a look back at the srcins ofenvironmental assessmentin Manitoba,highlighting the current legislation governing the EA process,theManitoba Environment Act.Following this background is a discussion ofthe activi-ties and projects that are required before an EA can be undertaken.The chapter thenoutlines the actual process ofassessment,identifying the three mandatory and twodiscretionary steps involved.The final section touches on a critique and analysis of several issues,including staged assessment,the impact ofthe discretionary powers of both the Director ofthe Environmental Approvals Branch and the Minister of Conservation,and some highlights ofthe public participation process.The chapterconcludes with a briefsummary ofthe current status of   EA in Manitoba and somesources for further information. ORIGINS OF ENVIRONMENTAL ASSESSMENT IN MANITOBA Manitoba’s EA process can be traced through several key pieces oflegislation.Thecurrent legislation governing the EA process in Manitoba,the Manitoba EnvironmentAct (S.M.1987–88,c.26 – Cap.E125,hereafter referred to as the Act),replacedthe Clean Environment Act of1968 and the Environment Assessment and Review  chapter 16 Environmental Assessment:Manitoba Approaches Kenton Lobe Hanna Part II, index 3/31/05 9:55 AM Page 293  Process,which had been adopted as provincial Cabinet policy in 1975.The estab-lishment ofthe new act was due in part to frequent amendments to the CleanEnvironment Act,to changing environmental values and public expectations,as wellas to the growing realization that the environment was coming under increasing pres-sure as a result ofManitobans’demand for economic development in their province.According to the Guide to the Environment Act, the Manitoba governmentidentified six basic principles that needed to be reflected in the new act: •Licensing process. The Act tied EA s to a licensing process,issuing both publicand private developments with a licence addressing significant environmentalimpacts identified with a particular development.Developments would bereviewed on different levels or classes,depending on the nature and location of the development. •Public consultation and participation. The Act strengthened and formalized therole ofthe public in consultation and participation for the environmental decision-making process,primarily through the establishment ofthe Clean EnvironmentCommission. •Environmental scope. The Act expanded the definition ofenvironment andrequired that all actions that significantly affect the environment be subject topublic scrutiny.Environment is defined in section 1(2) ofthe Act as ‘air,land,andwater,or plant and animal life,including humans.’ •Pollution control. The Act provided for site-specific limits and standards for actualor potential pollution to be addressed by the province through the licensingprocess. •Non-polluting environmental damage. The Act mandated the province to addressall types ofenvironmental damage,including non-polluting,and outlined aprocess of   EA to determine these impacts. •Enforcement. The Act provided enforcement responses for non-compliance tolicensing conditions to ensure compliance with laws to protect the environment.The Manitoba Environment Act was eventually passed by the provincial legislaturein 1987,becoming law on 31 March 1988.The purpose ofthe Act is stated in theopening paragraph: The intent ofthis Act is to develop and maintain an environmental managementsystem in Manitoba which will ensure that the environment is maintainedin such a manner as to sustain a high quality oflife,including social andeconomic development,recreation and leisure for this and future generations.(  Manitoba Environment Act 1(1)) As outlined in the six principles above and identified in the opening paragraph of the Act,better tools and processes,including environmental impact assessment,wererecognized as valuable components ofan approach to improved environmental 294| part iienvironmental impact assessment in canadian jurisdictions Hanna Part II, index 3/31/05 9:55 AM Page 294  management that would be tasked with identifying and mitigating the impacts of development.However,in contrast to other provincial EA processes,the purpose of the Manitoba Environment Act is to provide a legislative framework for a number of aspects ofenvironmental management—not only the EA process.Environmentalassessments ofprojects that are likely to have significant  effects on the environmenttherefore represent only one component ofthe Act,but one that is directly linked tothe actual licensing process.Several additional components ofthe Act provide amechanism for state-of-the-environment reports (Manitoba Environment Act 4(1))and recognize the emerging role for mediation in environmental decision making(though the state-of-the-environment reports ended in 1997 and mediation remainslargely at the edge ofthe agenda).The Manitoba Environment Act further set out the functions and the generalTerms ofReference for the Department ofConservation (formerly Department of Environment),the responsible authority under the Act to do environmental assess-ment in the province.These functions are carried out by the Environmental ApprovalsBranch ofthe Environmental Stewardship Division and include administration andenforcement ofthe Act,development and implementation ofenvironmental quality standards and objectives,involvement ofthe public in environmental decisionmaking,acquisition ofknowledge and data,and the development ofenvironmentalstrategies and policies ( Guide to Manitoba Environment Act  ).Many ofthe functionsentail a good deal ofdiscretionary decision-making authority,which rests with eitherthe elected Minister ofConservation or the appointed Director ofthe EnvironmentalApprovals Branch—the licensing arm ofthe provincial Department ofConservation.As identified above,in order to provide a mechanism for public consultation andinvolvement,section 6 ofthe Act establishes the Clean Environment Commission( CEC ),which consists ofup to 10 commissioners appointed by the lieutenantgovernor.The CEC is intended to be an arm’s-length provincial body that is respon-sible for providing advice and recommendations to the Minister,conducting formalinvestigations into environmental issues in the province,holding public hearingsin the review and assessment process for proposed developments,and acting as amediator between two or more parties to an environmental dispute.Its primary role in decision making consists ofreporting back to the Minister and providingrecommendations based on its work.The CEC ’s role in the public participation processis discussed below.There are other mechanisms for public consultation as well.One example includesa clause on public review in section 41(2) ofthe Act that requires that the Ministerprovide opportunity for public participation and seek advice and recommendationsfor the development ofnew regulations or for amendments to the Act. COVERAGE OF MANITOBA’S EA PROCESS One ofthe characteristics that differentiates the Manitoba EA process from otherprovinces is the inclusion ofboth public and private projects.Those activities thatare subject to EA are defined as developments in the Manitoba Environment Act. lobe:environmental assessment:manitoba approaches| 295 Hanna Part II, index 3/31/05 9:55 AM Page 295  The definition ofdevelopment is found in section 1(2) ofthe Act and serves as the key definition around which scoping ofprojects for assessment occurs: Any project,industry,operation or any alteration or expansion ofany project,industry,operation or activity which is likely to causea)the emission or discharge ofany pollutant into the environmentb)an effect on any unique rare or endangered feature ofthe environmentc)the creation ofby-products,residual or waste products d)a substantial utilization or alteration ofany natural resource in such a way asto pre-empt or interfere with the use or potential use ofthat resource for any other purposee)a substantial utilization or alteration ofany natural resource in such a way asto have an adverse impact on another resourcef)the utilization ofa technology that is concerned with resource utilization andthat may induce environmental damageg)a significant effect on the environment or will likely lead to a further devel-opment which is likely to have a significant effect on the environmenth)a significant effect on the social,economic,environmental health and culturalconditions that influence the lives ofpeople or a community in so far as they are caused by environmental effects.(  Manitoba Environment Act  1(2)) Developments are further categorized into three separate classes that serve in partto determine the process tracks used in the EA (discussed in the following section).In practice,they also serve to define the amount ofdetail required from the regulatorin the environmental impact statement ( EIS ) with Class 1 developments havingsignificantly less than Class 2 or 3.Defined broadly in the Act,Class 1,Class 2,andClass 3 developments are differentiated by their perceived impact on the environment,with Class 1 having the least effect and Class 3 the most.While the Act provides somegeneral definition in section 1(2),the Classes ofDevelopment Regulation (E125–M.R.164/88) includes an exhaustive list ofthose projects included in each class of development.Thus,a development is exempt,or its inclusion within the EA processis at the discretion ofthe Minister,unless it is specifically defined in the regulation.Table 16.1 provides a summary definition and a list ofcategories ofdevelopmentfor each ofthe three classes.Each category is further defined in the regulation toinclude a listing ofthe specific types ofdevelopment that must submit a proposalto the province.Where categories are present in more than one ofthe classes,oneexample from the regulation is included in parentheses. THE PROCESS The actual EA process in Manitoba is divided into five steps;three ofwhich are manda-tory,and two that remain at the discretion ofthe Director ofthe EnvironmentalApprovals Branch or the Minister ofConservation: 296| part iienvironmental impact assessment in canadian jurisdictions Hanna Part II, index 3/31/05 9:55 AM Page 296  1.Proponent files a proposal.2.Proposal is screened.3.Proponent is required to provide further information.4.Opportunity is provided for public hearings.5.A licensing decision is made.The process is described in some detail in the Act,the corresponding regulation,and in the September 2002 Information Bulletin (97–01E) put out by ManitobaConservation.Some ofthe highlights from each step are presented below and inFigure 16.1. Step 1:Proponent Files a Proposal (Mandatory) All proponents planning a development that is likely to have a significant effect on theenvironment are required to file a written proposal with the Department of Conservation.As outlined above,the specific types ofdevelopment that require aproposal are listed in the Classes ofDevelopment Regulation.It is worth noting thatproposals are often undertaken by private sector consultants hired by the proponent. lobe:environmental assessment:manitoba approaches| 297 TABLE 16.1Categories of developments Class ofDefinition – Section 1(2)Examples of Categories of DevelopmentDevelopment(as defined in regulation) Class 1Effects that are primarily theAgricultural;energy production (e.g.,steamdischarge of pollutantsplants);fisheries;forestry (e.g.,sawmills);manufacturing;transportation;waste disposal(e.g.,water treatment plants)Class 2Effects that are primarilyEenergy production (e.g.,stations generatingunrelated to pollution or areless than 100 MW);forestry (e.g.,pulp andin addition to pollutionpaper mills);habitat modification;mining;recreation;transportation and transmission(e.g.,transmission lines between 115 kV and230 kV);waste treatment and storage andscrap processing (e.g.,sewage treatment plants);water development and control (e.g.,landdrainage projects not greater than 500 km2)Class 3Effects of whichthat are ofEnergy production (e.g.,stations generatingsuch a magnitude or whichgreater than 100 MW);,mining;transportation that generate a number ofand transmission (e.g.,electrical transmissionenvironment issues lines greater than 230 kV);water development(e.g.,land drainage projects greater than500 km2) Hanna Part II, index 3/31/05 9:55 AM Page 297
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