Regulations Respecting Excluded Physical Activities

Whereas the Minister of the Environment has considered an assessment referred to in section 92 of the Impact Assessment Act^{Footnote 1} that is in relation to physical activities set out in section 34 of the schedule to the Physical Activities Regulations,

Therefore, the Minister of the Environment, pursuant to paragraph 112‍(1)‍(a.2) of the Impact Assessment Act, makes the annexed Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells).

Gatineau, June 3, 2020

Jonathan Wilkinson
Minister of the Environment

Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells)

Area of application

1 These Regulations apply only within the area described in Schedule 1.

Designation

2 The drilling, testing and abandonment of exploratory wells that are set out in section 34 of the schedule to the Physical Activities Regulations, take place in an area that is set out in one or more exploration licences issued in accordance with the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and satisfy the conditions set out in Schedule 2 are designated as physical activities under paragraph 112(1)(a.2) of the Impact Assessment Act.

Information to be provided

3 The person or entity that proposes the physical activity referred to in section 2 must provide the following information in respect of that physical activity to the Impact Assessment Agency of Canada at least 90 days before commencing the drilling program:

1. their name and contact information and the address of the Internet site on which the information referred to in section 40 of Schedule 2 will be published;
2. a description of the activity;
3. the licence number of any exploration licence respecting the area in which they propose to carry out the activity;
4. a summary of all engagement that the person or entity undertook with the Indigenous groups referred to in section 1 of Schedule 2, including issues raised and how views and issues raised have been considered and any future engagement that is planned;
5. the geographic coordinates of the area in which the activity would take place within the area described in Schedule 1 and the geographic coordinates identifying the area set out in any exploration licence;
6. the number of wells that are planned to be drilled and the planned depth of each well;
7. a list of all activities that are associated with the drilling, testing and abandonment and all infrastructure, structures and physical works that are necessary for those activities;
8. a site map that illustrates the location of the elements referred to in paragraph (g) and the distance between them;
9. a description of the processes that will be used to drill, test and abandon wells;
10. a list of any financial support received from federal authorities in relation to the activity and of any such support for which an application has been made;
11. a list of the permits, licences or other authorizations that may be required by jurisdictions that have powers, duties or functions in relation to an assessment of the activity's environmental effects; and
12. if the activity is proposed in an area that is closed in accordance with the Conservation and Enforcement Measures adopted by the Northwest Atlantic Fisheries Organization, a copy of any mitigation measures that were proposed to the Department of Fisheries and Oceans.

Coming into force

4 These Regulations come into force on June 4, 2020.

Schedule 1

(Section 1)

Area of Application

The area of application is described as follows:

• Commencing at a point at latitude 52.0000000° north and longitude 52.0000000° west;
• Then along a rhumb line to the point of intersection of latitude 52.0000000° north and the edge of the continental shelf of Canada as defined in international law;
• Then following the edge of that shelf to the point of intersection of that edge and with latitude 41.3916667° north;
• Then along a rhumb line to a point at latitude 41.3916667° north and longitude 51.0000000° west;
• Then along a rhumb line to a point at latitude 46.0000000° north and longitude 51.0000000° west;
• Then along a rhumb line to a point at latitude 46.0000000° north and 52.0000000° west; and
• Then along a rhumb line to the point of commencement.

Schedule 2

Conditions

Definitions

1 The following definitions apply in this Schedule.

activity area means the area surrounding each well where drilling, testing or abandonment occurs.(zone)

Board means the Canada-Newfoundland and Labrador Offshore Petroleum Board referred to in section 9 of the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act. (Office)

competent authorities means all federal or provincial authorities that are in possession of specialist or expert information or knowledge, or that have a responsibility for the administration of a law or regulation, with respect to the subject matter of a condition set out in this Schedule. (autorités compétentes)

competent person means an individual who has the necessary education, experience and knowledge to conduct studies and provide advice in a particular field, and includes a person with community knowledge or Indigenous knowledge. (personne compétente)

Indigenous group includes Abegweit First Nation, Acadia First Nation, Annapolis Valley First Nation, Bear River First Nation, Buctouche First Nation, Eel Ground First Nation, Eel River Bar First Nation, Elispogtog First Nation, Esgenoopetitj First Nation, Eskasoni First Nation, Fort Folly First Nation, Glooscap First Nation, Indian Island First Nation, Innu de Ekuanitshit, Première Nation de Nutashkuan, Innu Nation, Kingsclear First Nation, La Nation Micmac de Gespeg, Lennox Island First Nation, Listuguj Mi'gmaq Government, Madawaska Maliseet First Nation, Membertou First Nation, Metepenagiag Mi'kmaq Nation, Miawpukek First Nation, Micmacs of Gespapegiag, Millbrook First Nation, Nunatsiavut Government, NunatuKavut Community Council, Oromocto First Nation, Pabineau First Nation, Paqtnkek (Afton) First Nation, Peskotomuhkati Nation at Skutik, Pictou Landing First Nation, Potlotek (Chapel Island) First Nation, Qalipu Mi'kmaq First Nation Band, Sipekne'katik First Nation, St. Mary's First Nation, Tobique First Nation, Wagmatcook First Nation, We'kmoqma'q (Waycobah) First Nation and Woodstock First Nation.(groupe autochtone)

spill means a spill or unplanned release of oil or any other substance that may cause adverse environmental effects. (déversement)

Competent persons and best technology

2 For greater certainty, studies referred to in this Schedule are to be done in collaboration with competent persons and the solutions adopted take into account the most current standards and knowledge, community knowledge, Indigenous knowledge and the best available technology.

Consultation

3 In this Schedule, consultation requires:

1. providing a written notice of the opportunity for the party or parties being consulted to present their views and information on the subject of the consultation;
2. providing information on the scope and the subject matter of the consultation in a period of time that allows the party being consulted to prepare their views and information;
3. undertaking a consideration of all views and information presented by the party being consulted on the subject matter of the consultation;
4. informing the party being consulted in a timely manner on how the views and information received have been considered; and
5. in the case of consultation with an Indigenous group, also consulting with the group with respect to the way in which paragraph (a) to (d) will be satisfied with respect to that group.

Fisheries communications plan

4 The activity is the subject of a fisheries communications plan that is developed before the beginning of the drilling program in consultation with the Board, Indigenous groups and commercial fishers respecting the way in which communications will take place during all phases of the activity. The plan includes the following elements with respect to the drilling of wells and communications in the event of unplanned events that may cause adverse environmental effects:

1. the measures by which, at least two months before the drilling of each well, Indigenous groups and commercial fishers will be informed of planned drilling activity and planned drilling installation movements;
2. the time at which updates respecting drilling and drilling installation movement will be provided;
3. procedures to determine when a Fisheries Liaison Officer or a fisheries guide vessel is necessary during movement of drilling installations and the conducting of geophysical operations;
4. the measures by which, in the event of a spill, Indigenous groups and commercial fishers will be informed of the spill and of the results of the monitoring of its potential adverse effects on the environment or human health;
5. the measures in place to ensure communication will be exchanged with Indigenous groups and commercial fishers during the course of any spill that requires a tier 2 or tier 3 response, as defined in the most recent version of the International Association of Oil & Gas Producers' document Tiered Preparedness and Response;
6. a list of the information that will be provided to Indigenous groups and commercial fishers and the time at which it will be provided, which list includes
   1. a description of the activities associated with the drilling, testing and abandonment,
   2. the location of each safety exclusion zone,
   3. the schedule of anticipated traffic from vessels and the shipping lanes whose use is anticipated, and
   4. the locations of abandoned wellheads; and
7. the notices to be sent to Indigenous groups and commercial fishers with respect to the loss or damage of fishing gear attributed to the activity.

Follow-up program

5 Any follow-up program required in this Schedule is provided to the Board and includes the following:

1. the mitigation measures to be implemented and the methodology, location, frequency, timing and duration of monitoring to be used to assess the adverse effects of the activity and to determine the effectiveness of those mitigation measures;
2. the amount of change to the environment relative to the baseline conditions that existed before the activity began and to the adverse effects that were predicted that would require the implementation of modified or additional mitigation measures, including, if necessary, the stopping of the activity;
3. a description of the technologically and economically feasible measures to be implemented when modified or additional mitigation measures are required in accordance with paragraph(b); and
4. the scope, content, and frequency at which updates with respect to the results of the follow-up program are provided to the Board.

Follow-up program — fish and fish habitat

6 The activity is subject to a follow-up program with respect to fish and fish habitat and that measures the effectiveness of mitigation measures. The program is implemented throughout the drilling program and includes the following:

1. the measurement at every well of the concentration of drilling fluids retained on discharged drill cuttings as described in the most recent version of the Offshore Waste Treatment Guidelines, issued jointly by the National Energy Board, the Canada-Nova Scotia Offshore Petroleum Board and the Board, to verify that the discharge meets the performance targets set out in the Guidelines;
2. a study of the adverse effects of the discharge of drill cuttings on benthic habitat that is conducted, in consultation with the Department of Fisheries and Oceans and the Board, at the first well in each exploration licence, at any well where drilling is undertaken in an area determined by seabed investigation studies to be sensitive benthic habitat and at any well located within a special area designated as such due to the presence of sensitive coral and sponge species, or a location near such a special area where drill cuttings dispersion modelling predicts that the deposition of drill cuttings may have adverse effects, and includes:
   1. measuring the post-drilling extent and thickness of the deposition of sediment in order to verify the drill waste deposition modelling predictions,
   2. conducting benthic fauna studies to verify the effectiveness of mitigation measures, and
   3. comparing the modelling results to in situ results and providing those results no later than 60 days after the day on which the first well in each exploration licence is drilled; and
3. a study of the adverse effects of underwater sound levels that is conducted, in consultation with the Department of Fisheries and Oceans and the Board, at the first well in each exploration licence and includes the methods used to monitor those underwater sound levels.

Follow-up program — migratory birds

7 The activity is the subject of a follow-up program with respect to migratory birds that measures the effectiveness of mitigation measures and is developed in consultation with the Department of the Environment and the Board before the beginning of the drilling program. The follow-up program is implemented throughout the drilling program and includes:

1. monitoring for the presence of migratory seabirds throughout the day from the drilling installation and support vessels by a competent person whose primary responsibility is observing migratory seabirds and who follows the most recent version of Environment Canada's Eastern Canada Seabirds at Sea Standardized Protocol for Pelagic Seabird Surveys from Moving and Stationary Platforms and makes observations and collects migratory seabird study data during these activities; and
2. monitoring the drilling installation and support vessels throughout the day for the presence of stranded migratory birds and following the most recent version of Environment and Climate Change Canada's Procedures for Handling and Documenting Stranded Birds Encountered on Infrastructure Offshore Atlantic Canada.

Discharges, use of chemicals and disposal of drilling muds

8 The drilling complies with the following requirements:

1. chemicals that will be used and discharged into the marine environment are lower toxicity and selected in accordance with the most recent version of the Offshore Chemical Selection Guidelines for Drilling & Production Activities on Frontier Lands, issued jointly by the National Energy Board, the Canada-Nova Scotia Offshore Petroleum Board and the Board;
2. the treatment of discharges from drilling complies with the performance targets set out in the most recent version of the Offshore Waste Treatment Guidelines, issued jointly by the National Energy Board, the Canada-Nova Scotia Offshore Petroleum Board and the Board; and
3. spent or excess synthetic-based muds that are used in the activity and are not reused are disposed of in a facility on land in accordance with the applicable legislation.

Treatment of discharge from support vessels

9 During the activity, discharges from support vessels into the marine environment are treated in accordance with the International Maritime Organization's International Convention for the Prevention of Pollution from Ships and any applicable legislation.

Pre-drill study

10 The activity area is the subject of a pre-drill study at each proposed well site in order to determine whether there are seabed hazards, including unexploded ordnance.

Seabed hazards

11 If there is a seabed hazard in the activity area, safety measures are developed before the activity begins in consultation with the Board and the Canadian Coast Guard's Joint Rescue Coordination Centre in Halifax.

Seabed investigation study

12 The activity area is the subject of a seabed investigation study, that is developed and conducted in consultation with the Department of Fisheries and Oceans and the Board before the drilling of each well, to determine whether there are any aggregations of habitat-forming corals or sponges or any other environmentally sensitive features around each proposed well site. The study uses:

1. transects around each well site with a length and pattern that is based on applicable drill cutting dispersion model results; and
2. transects around each anchor site that extend at least 50 metres from each structure.

Coral, sponge and ecologically sensitive features

13 If a competent person concludes, on the basis of the seabed investigation study, that there are aggregations of habitat-forming corals or sponges or other environmentally sensitive features in the activity area, measures are taken to avoid affecting them, including moving the anchors or wells on the seafloor or redirecting the discharge of drill cuttings. If such movement or redirection is not technically feasible, other mitigation measures determined in consultation with the Department of Fisheries and Oceans and the Board are taken.

Other effective area-based conservation measure

14 If it is determined, after verifying with the Department of Fisheries and Oceans, that the activity area is one where there is an other effective area-based conservation measure in place in the marine environment, a plan is developed in consultation with that Department and the Board. The plan is provided to that Department and the Board at least 90 days before the beginning of the drilling program and includes a description of:

1. the potential effects of the activity with respect to the conservation objectives for the area;
2. the mitigation measures that are planned to limit the adverse effects of the activity on those objectives;
3. the monitoring activities that will be used to determine the effectiveness of those measures; and
4. the frequency at which updates with respect to the implementation of the mitigation measures and the results of monitoring activities will be provided to that Department and the Board.

Seismic sound

15 During the planning and the conduct of vertical seismic surveys associated with the activity, the most recent version of Fisheries and Oceans Canada's Statement of Canadian Practice with Respect to the Mitigation of Seismic Sound in the Marine Environment is applied, including the establishment of a safety zone of a minimum radius of 500 metres from the vertical seismic sound source.

Marine mammals and sea turtles

16 The activity area is the subject of a marine mammal and sea turtle monitoring plan that is developed in consultation with the Department of Fisheries and Oceans and the Board at least 30 days before the day on which there is a seismic survey.

The plan includes:

1. the use of passive acoustic monitoring, or equivalent technology, and of visual monitoring by marine mammal and sea turtle observers during vertical seismic surveys;
2. the shutting down of the seismic sound source if any marine mammal or sea turtle is observed within the safety zone referred to in section 15; and
3. the starting of the seismic sound source only once marine mammals and sea turtles have not been observed within the safety zone referred to in section 15 for 60 minutes.

Prevention of collision

17 Support vessels are subject to measures to reduce the risk of collision with marine mammals and sea turtles, including the requirements:

1. to use established shipping lanes where they already exist; and
2. to reduce their speed to a maximum of 7 knots when a marine mammal or sea turtle is observed or reported within 400 metres.

Reporting of collision

18 Any collision of a support vessel with a marine mammal or sea turtle is reported:

1. to the Department of Fisheries and Oceans' Canadian Coast Guard Regional Operations Centre, the Board and the competent authorities no more than 24 hours after the collision; and
2. to Indigenous groups no more than 3 days after the collision.

Salmon research

19 The carrying out of the activity includes contributing to a research program with respect to the presence of Atlantic salmon (Salmo salar) in the Eastern Canadian offshore area.

Provision of results

20 A summary of the activities of the research program with respect to salmon referred to in section 19 is provided yearly to Indigenous groups and to the Board.

Protection of migratory birds

21 The activity area is the subject of measures to avoid harming, killing or disturbing migratory birds that include:

1. using, when possible, a drill pipe conveyed test assembly or similar technology rather than by conducting a formation flow test with flaring;
2. limiting the duration of flaring to the length of time required to characterize the wells' hydrocarbon potential;
3. operating a water curtain barrier around the flare during flaring;
4. determining, in consultation with the Board and at least 30 days before any day on which flaring is planned, whether that flaring will occur during a period of migratory bird vulnerability and, if so, postponing the flaring or implementing additional measures to avoid adverse effects on those migratory birds;
5. controlling lighting required during the carrying out of the activity, including its direction, timing, intensity and glare;
6. measures that require support vessels to maintain a minimum lateral distance of 300 metres from Cape St. Francis and Witless Bay Islands Important Bird and Biodiversity Areas;
7. measures that require support helicopters to fly at altitudes greater than 300 metres above sea level where there are active migratory bird colonies and at a lateral distance of 1000 metres from Cape St. Francis and Witless Bay Islands Important Bird and Biodiversity Areas;
8. documenting any changes made to lighting regimes to allow for an evaluation of the effectiveness of the change in mitigating light attraction;
9. a research program to identify changes in light spectrum, type or intensity that may further reduce attraction for storm petrels and other migratory seabirds;
10. minimizing the number of flaring events during nighttime and poor weather conditions, as well as during seasonal periods of migratory bird vulnerability;
11. having a person described in paragraph 7‍(a) monitor and document migratory bird behaviour around the flare while flaring occurs and assess the effectiveness of water curtains and flare shields in mitigating interactions between migratory birds and flares;
12. incorporating any technology that becomes available into migratory seabird monitoring to complement research on the mitigation of light attraction; and
13. training offshore workers with respect to migratory seabird strandings.

Drill pipe conveyed test assembly

22 The Board is informed of the means by which paragraph 21‍(a) is satisfied.

Well control strategies

23 The activity is subject to well control strategies that include:

1. measures for well capping and containment of fluids released from the well and the drilling of a relief well and options to reduce the overall time it takes to respond to the release; and
2. measures to quickly disconnect the marine riser from the well in the event of an emergency or extreme weather conditions.

Provision of strategies to Board

24 The well control strategies referred to in section 23 are provided to the Board before the beginning of the drilling program.

Measures to prevent accidents

25 The activity is the subject of measures to prevent accidents and malfunctions that may result in adverse environmental effects and measures to mitigate such effects, including:

1. the development and implementation, in consultation with the Board, of operating procedures with respect to meteorological and oceanographic conditions that reflect the facility's design limits and the limits at which any work or activity may be conducted safely and without causing adverse environmental effects, including thresholds at which the activity will stop; and
2. the implementation of emergency response procedures and contingency plans in the event of an accident or malfunction.

Physical environment monitoring

26 The activity is the subject of a physical environment monitoring program that complies with the most recent version of the Offshore Physical Environmental Guidelines, issued jointly by the National Energy Board, the Canada-Nova Scotia Offshore Petroleum Board and the Board, and is developed in consultation with the Board and the Department of the Environment and is implemented throughout the drilling program.

Capping stacks

27 The activity is the subject, before and during the drilling of each well, of procedures to maintain information with respect to the current availability of capping stacks, vessels capable of deploying the capping stacks and installations capable of drilling relief wells in the activity area.

Provision of updates to Board

28 The updates with respect to the equipment referred to in section 27 are provided to the Board.

Spill impact mitigation assessment

29 The activity is the subject of a spill impact mitigation assessment to determine the options that could be implemented in the case of a spill in order to reduce adverse environmental effects as much as possible.

Provision of assessment to Board

30 The spill impact mitigation assessment referred to in section 29 is provided to the Board before the beginning of the drilling program.

Spill response plan

31 The activity is the subject of a plan to respond to a spill, which plan takes into account comments from Indigenous groups with respect to the draft plan that was provided to those groups.

Content of spill response plan

32 The spill response plan referred to in section 31 includes the following and is provided to the Board before the beginning of the drilling program:

1. modelling of potential spills;
2. measures for responding to a spill, including those for containing and recovering the spilled substance and measures for mitigating the spill's adverse effects on the environment;
3. measures for protecting and rehabilitating wildlife affected by a spill, including measures for collecting and cleaning marine mammals, sea turtles, migratory birds and species at risk and measures for shoreline protection and clean-up;
4. the list of authorities to notify of a spill, including when they will be notified and the means to notify them; and
5. a list of the persons responsible for managing the spill at sea and on land.

Exercise of spill response plan

33 The spill response plan that is provided to the Board is the subject of an exercise as described in the most recent version of the Drilling and Production Guidelines, issued jointly by the Canada-Nova Scotia Offshore Petroleum Board and the Board, in order to determine its deficiencies. The results are sent to the Board and, if applicable, an update is provided to the Board.

Updating of spill response plan

34 Before a new well is drilled, the spill response plan is updated, if necessary, and any such update is provided to the Board.

Provision of plan to Indigenous groups

35 A copy of any communication with respect to the development of the spill response plan, the plan itself and the results of the exercise referred to in section 33 are provided to Indigenous groups before the beginning of the drilling program. Subsequent updates referred to in section 33 or 34 are also provided to those groups.

Implementation of spill response plan

36 In the event of a spill, the competent authorities, Indigenous groups and commercial fishers are notified without delay and the plan referred to in section 31 is implemented. In the case of an uncontrolled subsea release, subsea containment and capping equipment and a relief well drilling installation are immediately mobilized to the site of the release.

Monitoring of spill

37 After a spill referred to in section 36, a program to monitor its adverse environmental effects that is developed in consultation with the Board is implemented. The program may include:

1. sensory testing of seafood for taint and chemical analysis for oil concentrations and any other contaminants, as applicable;
2. measuring the levels of contamination in recreational, commercial and traditionally harvested fish species, using those measurements to assess the risk to human health from the contamination and providing that assessment to the competent authorities, including those responsible for fishing area closures;
3. monitoring marine mammals, sea turtles and birds for signs of oiling or contamination and reporting the results of the monitoring to the Board, the Department of Fisheries and Oceans and the Department of the Environment; and
4. monitoring benthic organisms and habitats.

Well and wellhead abandonment plan

38 The activity is the subject of a well and wellhead abandonment plan that is developed at least 30 days before the day on which a well is planned to be abandoned. If the abandonment of a wellhead on the seafloor may interfere with Indigenous or commercial fisheries, the plan is developed in consultation with the Indigenous groups and commercial fishers with fishing licences that, in the opinion of the Department of Fisheries and Oceans, overlap with the activity area.

Notice

39 The Marine Communications and Traffic Services, the Northwest Atlantic Fisheries Organization Secretariat and the Canadian Hydrographic Services are given notice of the drilling and testing, the safety exclusion zones associated with that drilling and testing and the location where wellheads are abandoned and left on the seafloor.

Internet publication

40 An up-to-date version of the following information is published on the Internet and Indigenous groups are notified of the publication:

1. the communication plan referred to in section 4;
2. the results obtained from the implementation of the follow-up programs referred to in sections 6 and 7;
3. the results of the seabed investigation study referred to in sections 12 and 13;
4. the results of the marine mammal and sea turtle monitoring plan referred to in section 16;
5. the well control strategies referred to in section 23;
6. the spill impact mitigation assessment referred to in section 29;
7. the spill response plan referred to in section 31;
8. the well and wellhead abandonment plan referred to in section 38; and
9. the documents referred to in subparagraph 41‍(i)‍(i)‍.

Board

41 Compliance with the following obligations under the Canada‍–‍Newfoundland and Labrador Atlantic Accord Implementation Act is a condition for the purpose of the Regulations:

1. the submission to the Board of a well and wellhead abandonment plan;
2. the submission to the Board of a marine mammal and sea turtles monitoring plan;
3. the submission to the Board of information with respect to known lost or damaged fishing gear attributed to the activity;
4. the submission to the Board of an ice management plan;
5. the submission to the Board of a plan for the avoidance of collisions between drilling installations and vessels or other foreseeable hazards;
6. the submission to the Board of a spill response plan and the submission of updates to such a plan;
7. the submission to the Board of an analysis of capping stack technology if drilling is anticipated in water depths in excess of 2 500 m or less than 500 m in order to confirm that the technology can be deployed and operated safely at the proposed depth;
8. the requirements that apply in the event of a spill, accident or malfunction, including those set out in the Canada‍–‍Newfoundland and Labrador Offshore Petroleum Financial Requirements Regulations, and the most recent version of the Compensation Guidelines Respecting Damages Relating to Offshore Petroleum Activity issued jointly by the Canada-Nova Scotia Offshore Petroleum Board and the Board; and
9. the submission to the Board of any other plan, report or schedule with respect to measures for the protection of the environment, including:
   1. annual or final reports with respect to the drilling program, and
   2. the execution plan and schedule for undertaking the activity.