Discussion Paper on a Ministerial Regulatory Proposal to Designate Offshore Exploratory Drilling East of Newfoundland and Labrador for Exclusion under the Impact Assessment Act

We Want Your Views

A regional assessment for existing and anticipated offshore oil and gas exploratory drilling has been conducted in the offshore East of Newfoundland and Labrador. The Minister of Environment and Climate Change Canada (the Minister) is now proposing to make a regulation, under paragraph 112(1)(a.2) of the Impact Assessment Act (IAA) (the "regulation"), to designate these projects occurring in the study area of the regional assessment for exclusion from assessment requirements under the IAA. Informed by the work conducted during the regional assessment, the regulation would establish conditions that must be met for the purposes of the exclusion, and set out the information that a proponent would need to provide to the Impact Assessment Agency of Canada (the Agency) when proposing to carry out a project in the study area that would meet the exclusion. The objective of the proposed Ministerial regulation is to improve the efficiency of the assessment processes of offshore oil and gas exploratory drilling, while maintaining the high standards of environmental protection for these projects.

This purpose of this Discussion Paper is to seek views on the proposed elements to be included in the Ministerial regulation to designate offshore exploratory drilling in the offshore East of Newfoundland and Labrador for exclusion under the IAA.

Context

On April 15, 2019, the Minister, together with the Minister of Natural Resources Canada, the provincial Minister of Natural Resources and the provincial Minister for Intergovernmental and Indigenous Affairs established the Committee for the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador (the Committee) to undertake a regional assessment under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) of the effects of existing and anticipated offshore exploratory drilling in the offshore east of Newfoundland and Labrador.

On August 28, 2019, the Government of Canada implemented new rules through the IAA that protect the environment, recognize and respect Indigenous rights, and strengthen our economy. The IAA establishes an impact assessment process to serve as a planning tool, which takes into consideration the whole range of environmental, health, social and economic effects of projects. Impact assessments under the IAA are conducted for proposed physical activities that are “designated projects”, either by the Physical Activities Regulations (also known as the Project List) or by the Minister. For non-designated projects that are located on federal land or outside Canada, the IAA also includes requirements for authorities to determine whether a project is likely to cause significant adverse environmental effects before taking action or making a decision that would enable the project to proceed (sections 82-83).

The IAA and the Project List include provisions that allow certain projects, such as offshore oil and gas exploratory drilling, to be excluded from impact assessment requirements when they are proposed in an area for which a regional assessment has been carried out and the project is in conformity with the conditions for exclusion set out in a Ministerial regulation. These provisions apply to regional assessments that are conducted under the IAA (s.92 or 93) or regional studies under the former CEAA 2012 (s.73-77). Once a regional assessment that assesses the effects of these projects in a given region is completed, the Minister may, after considering that assessment, make a regulation to designate these projects for the purposes of the exclusion. Any proposed project that meets the conditions in the regulation would be excluded from impact assessment requirements under the IAA.

On February 29, 2020, the Committee submitted its final report that included its conclusion on the effects of offshore oil and gas exploratory drilling in the Offshore East of Newfoundland and Labrador and recommendations on how to best use the results of the regional assessment to aid decision-making, including specific requirements to be included in the Ministerial regulation for all future exploratory drilling activities in the study area seeking exclusion from impact assessment. In addition to the recommendations that could be addressed through the Ministerial regulation, the Committee directed a number of broader recommendations to the Government of Canada and other parties. The proposals in this discussion paper are made in consideration of the Committee's recommendations with respect to the regulation. The Government of Canada is currently considering the other recommendations and expects to release a response to these recommendations at the same time as the final regulation.

What is Being Considered for the Regulation?

In its report, the Committee concluded that the effects of offshore oil and gas exploratory drilling are well understood; entail minor, localized and temporary disturbances; and are unlikely to be significant with the implementation of standard mitigation measures. In recognition of this, the Minister is proposing a regulation that reflects the Committee’s recommendation to the extent possible to ensure proponents implement these standard mitigation measures when proposing these projects. The regulation would include four elements – the designation of the physical activity for the purposes of the exclusion, the geographical boundary of the regulation and the conditions that must be met for the purposes of the exclusion (Annex 1), and the information that a proponent must provide to the Agency when proposing to carry out a project that would meet the exclusion (Annex 2). The following sections provide an overview of the proposed elements of the regulation. Annex 3 provides details on how the regulatory proposal responds to the Committee’s recommendations that were specific to the regulation.

1. Designation

The following physical activity, as described under s.34 of the Schedule to the Physical Activities Regulations, would be designated under the regulation and therefore subject to the exclusion:

34. The drilling, testing and abandonment, in an area set out in one or more exploration licences issued in accordance with the Canada Petroleum Resources Act, the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act or the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, of offshore exploratory wells in the first drilling program, as defined in subsection 1(1) of the Canada Oil and Gas Drilling and Production Regulations, SOR/2009-315.

Subject to the geographic scope below, the designation would apply to all offshore exploratory wells in the first drilling program proposed by a proponent as set out in the exploration license(s) provided by the Canada-Newfoundland and Labrador Offshore Petroleum Board (the Board). A drilling program is the proponent-planned program for the drilling of one or more wells within a specified area and time and includes related drilling installations and activities. There can be more than one drilling program in an exploratory license. Offshore exploratory wells proposed in subsequent drilling programs within the same exploratory license(s) would not be captured by this designation. However, they would also not be subject to the IAA, unless designated by the Minister, as they are not described as a “designated project” under the Physical Activities Regulations.

2. Geographical scope of the regulation

It is proposed that the regulation apply to the entire regional assessment study area. Additional information is proposed to be required from proponents when they propose to conduct activities in certain areas with specific environmental characteristics and sensitivities – namely, other effective area-based conservation measure (OECM) in the marine environment (e.g., marine refuge), aggregations of habitat-forming corals or sponges, and Northwest Atlantic Fisheries Organization (NAFO) Fisheries Closure Areas.

Figure 1 Regional Assessment Study Area

3. Conditions to support environmental protection

For an offshore oil and gas exploratory drilling project to be excluded from assessment requirements under the IAA, it needs to meet the conditions established in the regulation. Building on the recommendations of the Committee, the proposed regulatory conditions codify all of the standard mitigation and follow-up requirements included as conditions of environmental assessment approval for recent exploratory drilling projects in the study area under CEAA 2012, and include additional elements to reflect further recommendations from the Committee (Annex 1).

4. Written Notice

When a proponent is proposing to carry out a project that is described in the regulation, it must notify the Agency in writing that it intends to carry out the project and include in the notification the information requirements that are set out in the regulation.

The purpose of the notification is to inform the Agency as well as the public, Indigenous groups and stakeholders that such a project is being proposed.

The following key information is proposed to be required in the written notice (Annex 2):

• Overview of the proposed project and its related activities;
• A summary of any engagement with Indigenous peoples of Canada as well as a summary of key issues raised and the results of the engagement, and a brief description on any planned future engagement;
• Confirmation that the proposed project is within the geographical scope of the regulation; and any site maps;
• Any federal funding that may be provided for the project and any permits, licences and authorizations that would be required for the project to proceed;
• If the project is proposed within an other effective area-based conservation measure (OECM) in the marine environment (e.g., marine refuge), aggregations of habitat-forming corals or sponges, or a NAFO fisheries closure area, the proponent shall outline how it intends to address any effects of these activities on the various environmental characteristics and sensitivities present within the special area(s) and provide it to Fisheries and Oceans Canada.

How would the exclusion work?

When a proponent is proposing to carry out a project that is described in the regulation, it must notify the Agency in writing of its intention (ss. 112(3) of the IAA). The proponent's notification would be required at least 90 days prior to the start of a drilling program. If a project is proposed to be carried out within a special area, the proponent would also be required to provide the Agency and Fisheries and Oceans Canada with an outline on how it will address effects within the special area.

Once the Agency receives a notification, the Agency will verify that the proposed project type is designated by the regulation and is located within the geographical area covered by the regulation. The Agency will then post the notification on the Impact Assessment Registry (the Registry) to inform the public, Indigenous groups and stakeholders that such a project is being proposed. Considering that the proposed conditions to be met in the regulation would be forward-looking, the proponent will not be required to demonstrate compliance only at the time of notification but throughout the lifecycle of the project.

Following the submission of a notification to the Agency, proponents will work directly with the Board, who will secure compliance with the conditions of the regulation and with requirements under the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act (Accord Acts). The Board is the lifecycle regulator under the Accord Acts for offshore oil and gas activities in the Canada-Newfoundland and Labrador offshore, including the area where the RA and IAA exemption applies.

Under the Accord Acts, the Board has the responsibility to ensure that the projects it regulates proceed in an environmentally acceptable manner. The Board works closely with proponents and federal departments such as the Agency, Fisheries and Oceans Canada and Environment and Climate Change Canada to ensure that oil and gas activities, including exploratory drilling, adhere to all applicable standards, guidelines, and regulatory and legislative requirements.

For all offshore exploratory drilling projects that are excluded from the IAA, proponents will continue to be subject and be required to comply with requirements found under legislation such as the Accord Acts, Fisheries Act, the Oceans Act, the Navigation Protection Act, the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999. For example, with respect to special areas, the proponent will have to consult with the Board and the Minister of Fisheries and Oceans prior to commencing drilling to determine an appropriate course of action, including any additional mitigation measures, when the relocation of anchors or wells on the seafloor or the redirect of drill cuttings discharges is not technically feasible.

No exploratory drilling activities can proceed in the Canada-Newfoundland and Labrador offshore unless the Board has issued authorizations under the Accord Acts, including an Operations Authorization (OA) and an approval to drill a specific well. For projects exempt from the IAA, the Board would not issue these authorizations unless a proponent has demonstrated compliance with any condition that must be met prior to the start of a drilling program.

Under the Impact Assessment Act, enforcement officers are empowered to verify compliance and enforce the provisions of the Act, including any Ministerial regulation that is established in relation to the regional assessment. The IAA provides the means for enforcement officers to conduct both on-site and off-site inspections and measures to prevent non-compliance with Act. In addition, all conditions that must be met by proponents in the Ministerial regulation could be incorporated by the Board as a requirement of their OA. Under the Accord Acts, the Board is responsible for enforcement and compliance for any conditions incorporated into its OA.

The Agency is working with the Board to develop mechanisms for cooperation. This could include the Board, prior to issuing an OA, providing the Agency with confirmation that:

• Pre-drilling conditions have been met by the proponent, including all related consultation and publication requirements;
• All conditions that must be met by a proponent are incorporated into the OA, and apply and are enforceable under the Accord Acts.

The Agency could post such a confirmation from the Board on its website.

In addition, the proponent would be required to post and update a schedule on the internet relating to each condition set out in the regulation, including all activities planned to fulfill the condition and the commencement and estimated completion timeline for each of these activities.

This approach would build on past and current practice, where the Board enforces conditions from decision statements issued by the Minister of Environment, when it incorporates those conditions into its OA.

For any measures not incorporated into its approvals, the Agency could designate the Board’s enforcement officers in accordance with section 120 of the IAA to secure compliance.

The regional assessment has been designed to meet the requirements of both CEAA 2012 and the IAA. For projects that have commenced and are still ongoing under CEAA 2012, discussions will take place in the context of each individual project on how the regional assessment could be utilized to support the remaining steps of each assessment process.

With the implementation of the regulation, the approval process for offshore oil and gas exploratory drilling projects will be simplified, duplication stemming from project-specific assessments will be removed and timelines for regulatory approvals will be significantly reduced without any loss of protection to the environment. In order to ensure the highest standards of environmental protection continue to be maintained over time and to ensure the effectiveness of the streamlined process, this regulation will be reviewed every five years. This five-year review will also consider any cumulative effects that result from projects in the area. For projects that have already provided notice ahead of any updated regulation, the intent is that these projects would continue to be subject to the requirements in place at the time of notification.

Next Steps – Providing Your Views

The Agency is interested in receiving your views on the proposed elements to be included in the regulation that would designate offshore oil and gas exploratory drilling in the offshore East of Newfoundland and Labrador for the purpose of exclusion under the IAA, including any elements of the regulation that would benefit from further guidance.

Comments can be provided online at www.impactassessmentregulations.ca by April 3, 2020.

This is the only opportunity to provide comments prior to the coming into force of the Ministerial regulation. The feedback gathered during this engagement opportunity will help inform the development of the regulation. A summary of the comments received and how they were considered in developing the final regulation will be provided in the Regulatory Impact Analysis Statement that will accompany the final regulation.

Given that this regulation is exempted from the Statutory Instruments Act pursuant to ss.112(4) of the IAA, the regulation will not be published in the Canada Gazette or on the Department of Justice website, but instead will be published on the Agency’s Registry.

Annex 1 - Proposed conditions to support mitigation of environmental effects

These conditions, based on conditions found in recent project-specific decision statements, are proposed to be included in the regulation. In order to be excluded from the requirements of the IAA, proponents of projects within the study area would be required to demonstrate compliance with these conditions as they carry out their projects. Note that the following conditions represent the policy intent and that the text may differ in the final regulation.

1. The Proponent shall ensure that its actions in meeting the conditions set out in this regulation during all phases of the Project are considered in a careful and precautionary manner, promote sustainable development, are informed by the best information and knowledge available at the time the Proponent takes action, including community and Indigenous knowledge, are based on methods and models that are recognized by standard-setting bodies, are undertaken by qualified individuals, and have applied the best available economically and technically feasible technologies.
2. The Proponent shall, where consultation is a requirement of this regulation
   1. provide 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. provide sufficient information on the scope and the subject matter of the consultation in a period of time that allows the party or parties being consulted, to prepare their views and information;
   3. undertake an impartial consideration of all views and information presented by the party or parties being consulted on the subject matter of the consultation; and
   4. advise in a timely manner the party or parties being consulted on how the views and information received have been considered by the Proponent.
3. The Proponent shall, where engagement with Indigenous groups is a requirement of a condition, communicate with each Indigenous group with respect to the manner by which to satisfy the engagement requirements referred to in condition 2, including methods of notification, the type of information and the period of time to be provided when seeking input, the process to be used by the Proponent to undertake impartial consideration of all views and information presented on the subject of the engagement, the period of time to advise Indigenous groups of how their views and information were considered by the Proponent and the means by which Indigenous groups will be advised.
4. The Proponent shall, where a follow-up program is a requirement of a condition, determine the following information, for each follow-up program:
   1. the methodology, location, frequency, timing and duration of monitoring associated with the follow-up program as necessary to assess the effects of the Project as they pertain to the particular condition and to determine the effectiveness of any mitigation measure(s);
   2. the scope, content and frequency of reporting of the results of the follow-up program;
   3. the levels of environmental change relative to baseline conditions and predicted effects that would require the Proponent to implement modified or additional mitigation measure(s), including instances where the Proponent may be required to stop Project activities; and
   4. the technically and economically feasible mitigation measures to be implemented by the Proponent if monitoring conducted as part of the follow-up program shows that the levels of environmental change have reached or exceeded the limits referred to in condition 4 c).
5. The Proponent shall submit the information referred to in condition 4 to the Board prior to the implementation of each follow-up program. The Proponent shall update that information in consultation with relevant authorities during the implementation of each follow-up program, and shall provide the updated information to the Board within 30 days of the information being updated.
6. The Proponent shall, where a follow-up program is a requirement of a condition:
   1. conduct the follow-up program according to the information determined pursuant to condition 4;
   2. undertake monitoring and analysis to verify the accuracy of the environmental assessment as it pertains to the particular condition and/or to determine the effectiveness of any mitigation measure(s);
   3. determine whether modified or additional mitigation measures are required based on the monitoring and analysis undertaken pursuant to condition 6 b); and
   4. if modified or additional mitigation measures are required pursuant to condition 6 c), develop and implement these mitigation measures in a timely manner and monitor them pursuant to condition 6 b).
7. The Proponent shall, within 90 days of the completion of the drilling program for a single year program, or annually within 90 days of the end of each calendar year of a multi-year drilling program, submit a report to the Board, including an executive summary of the report in both official languages. The Proponent shall document in the report:
   1. the activities undertaken by the Proponent in the reporting year to comply with each of the conditions;
   2. how the Proponent complied with condition 1;
   3. for conditions for which consultation is a requirement, how the Proponent considered any views and information that the Proponent received during or as a result of the consultation;
   4. the information referred to in conditions 4 and 5 for each follow-up program;
   5. the results of the follow-up program requirements identified in conditions 21 and 25; and
   6. any modified or additional mitigation measures implemented or proposed to be implemented by the Proponent, as determined under condition 6.
8. The Proponent shall cause to be published on the Internet the reports and the executive summaries referred to in condition 7, the seabed investigation survey results referred to in condition 15, the communication plan referred to in condition 26, the well and wellhead abandonment plan referred to in condition 27, the well control strategies referred to in condition 34, the spill response plan referred to in condition 36, the Spill Impact Mitigation Assessment or Net Environmental Benefit Analysis referred to in condition 40, the implementation schedule referred to in condition 46, monitoring and follow-up results for marine mammals, fish and fish habitat, and migratory birds and any update(s) or revision(s) to the above documents, upon submission of these documents to the parties referenced in the respective conditions. The Proponent shall notify Indigenous groups of the availability of these documents within 48 hours of their publication.
9. When the development of a plan is a requirement of a condition, the Proponent shall submit the plan to the Board prior to the start of the drilling program, unless otherwise required through the condition.
10. The Proponent shall treat all discharges from offshore drilling into the marine environment which, at a minimum, will meet the volumes and concentration limits identified in the Offshore Waste Treatment Guidelines, issued jointly by the National Energy Board, the Canada-Newfoundland and Labrador Offshore Petroleum Board, the Canada-Nova Scotia Offshore Petroleum Board, and any other legislative requirements, where applicable. The proponent shall also install and use of oil water separators to treat contained deck drainage, with collected oil stored and disposed of properly.
11. The Proponent shall dispose of spent or excess synthetic-based drilling muds that are not re-used at an approved on-shore facility.
12. The Proponent shall apply, at a minimum, the standards identified in the Offshore Chemical Selection Guidelines for Drilling & Production Activities on Frontier Lands, issued jointly by the National Energy Board, the Canada-Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board, to select lower toxicity chemicals for use and discharge into the marine environment, including drilling fluid constituents, and shall submit any necessary risk justification pursuant to the Guidelines to the Board for acceptance prior to use.
13. The Proponent shall treat all discharges from supply vessels into the marine environment in accordance with the International Maritime Organization’s International Convention for the Prevention of Pollution from Ships and any other legislative requirements, where applicable The proponent shall conduct inspections of ship hulls, drill rigs and equipment for alien invasive species and associated follow-up maintenance, as well as maximize the use of local vessels, rigs and equipment where possible.
14. The Proponent shall conduct a pre-drill survey with qualified individual(s) at each well site to confirm the presence or absence of any unexploded ordnance or other seabed hazards. If any such ordnance or seabed hazard is detected, it shall not be disturbed and the Proponent shall contact the Canadian Coast Guard’s Joint Rescue Coordination Centre in Halifax and the Board to determine an appropriate course of action, prior to commencing drilling.
15. The Proponent shall develop and conduct, in consultation with Fisheries and Oceans Canada and the Board, a seabed investigation survey to confirm the presence or absence of any aggregations of habitat-forming corals or sponges or any other environmentally sensitive features prior to drilling a well. The Proponent shall retain the services of an individual that is qualified to operate the equipment used to conduct the survey(s). Survey transect length and pattern around well sites shall be based on applicable drill cutting dispersion model results. Transects around anchor sites should extend at least 50 metres from each structure.
16. If the survey(s) conducted in accordance with condition 15 confirm(s) the presence of aggregations of habitat-forming corals or sponges, or if other environmentally sensitive features are identified by a qualified individual, the Proponent shall change the location of the anchor(s) or well on the seafloor or redirect drill cuttings discharges to avoid affecting the aggregations of habitat-forming corals or sponges or other environmentally sensitive features, unless not technically feasible, as determined in consultation with the Board. If not technically feasible, the Proponent shall consult with the Board and Fisheries and Oceans Canada prior to commencing drilling to determine an appropriate course of action, subject to the acceptance of the Board, including any additional mitigation measures that must be implemented. Consultation with Fisheries and Oceans Canada shall include mitigation options to reduce any identified risk to habitat-forming coral and sponge aggregations or other environmentally sensitive features in accordance with the provisions of the Fisheries Act.
17. The Proponent shall apply Fisheries and Oceans Canada’s Statement of Canadian Practice with Respect to the Mitigation of Seismic Sound in the Marine Environment during the planning and the conduct of vertical seismic surveys. In doing so, the Proponent shall establish a safety zone of a minimum radius of 500 metres from the seismic sound source.
18. The Proponent shall develop, in consultation with Fisheries and Oceans Canada and the Board, a marine mammal monitoring plan that shall be submitted to the Board at least 30 days prior to the commencement of any vertical seismic survey. The Proponent shall implement the plan during the conduct of vertical seismic surveys. As part of the plan, the Proponent shall:
    1. develop and implement marine mammal observation requirements, including the use of passive acoustic monitoring, or equivalent technology, and visual monitoring by marine mammal observers throughout vertical seismic surveys;
    2. ensure that observation requirements specify the requirement for shut down of the seismic sound source if any marine mammal or sea turtle is observed within the safety zone established in condition 17; and
    3. ensure that observation requirements specify that the start of the seismic sound source can only begin once marine mammals have not been observed within the safety zone established in condition 17 for 60 minutes; and
    4. submit the results of the activities undertaken as part of the marine mammal observation requirements to the Board within 60 days of the end of the vertical seismic surveys.
19. The Proponent shall implement measures to prevent or reduce the risks of collisions between supply vessels and marine mammals and sea turtles, including:
    1. requiring supply vessels to use established shipping lanes, where they exist; and
    2. requiring supply vessels to reduce speed to a maximum of 7 knots when a marine mammal or sea turtle is observed or reported within 400 metres of a supply vessel, except if not feasible for safety reasons.
20. The Proponent shall report any collisions of a supply vessel with marine mammals or sea turtles to the Board, Fisheries and Oceans Canada’s Canadian Coast Guard Regional Operations Centre, and any other relevant authorities as soon as reasonably practicable but no later than 24 hours following the collision, and notify Indigenous groups within three days.
21. The Proponent shall develop and implement follow-up requirements, pursuant to condition 4, to assess the effects of the Project as they pertain to fish and fish habitat, including marine mammals and sea turtles, and to determine the effectiveness of mitigation measures identified under conditions 10 to 20. As part of these follow-up requirements, for the duration of the drilling program, the Proponent shall:
    1. for every well, measure the concentration of synthetic-based drilling fluids retained on discharged drill cuttings as described in the Offshore Waste Treatment Guidelines to verify that the discharge meets, at a minimum, the performance targets set out in the Guidelines and any applicable legislative requirements, and report the results to the Board;
    2. for the first well in each exploration licence, and for any well where drilling is undertaken in an area determined by seabed investigation surveys to be sensitive benthic habitat, and for any well located within a special area designated as such due to the presence of sensitive coral and sponge species, or a location near a special area where drill cuttings dispersion modelling predicts that drill cuttings deposition may have adverse effects, develop and implement, in consultation with Fisheries and Oceans Canada and the Board, follow-up requirements to assess the effects of the Project and verify the effectiveness of mitigation measures as they pertain to the effects of drill cuttings discharges on benthic habitat. Follow-up shall include:
       1. measurement of sediment deposition extent and thickness post-drilling to verify the drill waste deposition modeling predictions;
       2. benthic fauna surveys to verify the effectiveness of mitigation measures; and
       3. the Proponent shall report the information collected, as identified in conditions 21 a) and 21 b), including a comparison of modelling results to in situ results, to the Board within 60 days following the drilling of the first well in each exploration licence; and
    3. for the first well in each exploration licence, develop and implement, in consultation with Fisheries and Oceans Canada and the Board, follow-up requirements to assess the effects of the Project as they pertain to underwater sound levels. As part of the development of these follow-up requirements, the Proponent shall determine how underwater sound levels shall be monitored through field measurement by the Proponent during the drilling program and shall provide that information to the Board prior to the start of the drilling program.
22. The Proponent shall submit to the Board a letter, prior to the start of the drilling program, confirming its intent to participate in research pertaining to the presence of Atlantic salmon (Salmo salar) in the Eastern Canadian offshore areas and update the Board and Indigenous groups annually on related research activities.
23. The Proponent shall carry out the Project in a manner that protects migratory birds and avoids harming, killing or disturbing migratory birds or destroying, disturbing or taking their nests or eggs. In this regard, the Proponent shall be in compliance, where applicable, with the Migratory Birds Convention Act, 1994, the Migratory Birds Regulations and with the Species at Risk Act and shall take into account Environment and Climate Change Canada’s Avoidance Guidelines.
24. The Proponent shall implement measures to avoid harming, killing or disturbing migratory birds as well as steps to minimize light attraction effects, including:
    1. using a drill pipe conveyed test assembly, or similar technology, rather than formation testing with flaring, where acceptable to the Board;
    2. limiting flaring to the length of time required to characterize the wells’ hydrocarbon potential and as necessary for the safety of the operation;
    3. flaring as early as practicable during daylight hours to limit flaring that occurs during nighttime;
    4. operating a water curtain barrier around the flare during flaring;
    5. notifying the Board at least 30 days in advance of planned flaring to determine whether the flaring would occur during a period of migratory bird vulnerability and to determine how the Proponent plans to avoid adverse environmental effects on migratory birds;
    6. controlling lighting required for the operation of the Project for the duration of the drilling program, including the direction, timing, intensity, and glare of light fixtures, while meeting operational health and safety requirements;
    7. requiring supply and other support vessels to maintain a minimum lateral distance of 300 metres from Cape St. Francis and Witless Bay Islands Important Bird and Biodiversity Areas, unless there is an emergency situation; and
    8. requiring supply helicopters to fly at altitudes greater than 300 metres above sea level from active bird colonies and at a lateral distance of 1000 metres from Cape St. Francis and Witless Bay Islands Important Bird and Biodiversity Areas except for approach, take-off and landing maneuvers, as required under the Canadian Civil Aviation Regulations or if not feasible for safety reasons.
    9. reduce the amount of artificial lighting by adjusting the intensity, duration and frequency of the artificial lighting to the extent possible without compromising safety;
    10. document any changes made to lighting regimes to allow for an evaluation of the effectiveness of the mitigation on light attraction;
    11. support/conduct research to identify changes in light spectrum, type, and/or intensity that may further reduce attraction for storm-petrels and other seabirds;
    12. minimize the number of flaring events, to the extent feasible, during nighttime and poor weather conditions, as well as during seasonal periods of bird vulnerability; and
    13. when flaring occurs, have a dedicated Seabird Observer monitor and document bird behavior around the flare, and assess the effectiveness of flare shields and water curtains in mitigating flare-bird interactions, as applicable.
25. The Proponent shall develop, prior to the start of the drilling program and in consultation with Environment and Climate Change Canada and the Board, follow-up requirements, pursuant to condition 4, to determine the effectiveness of the mitigation measures implemented by the Proponent to avoid harm to migratory birds, their eggs and nests, including the mitigation measures used to comply with conditions 23 and 24. The Proponent shall implement these follow-up requirements for the duration of the drilling program. As part of the follow-up, the Proponent shall:
    1. monitor daily for the presence of marine birds at the drilling installation and supply vessels using a trained observer following Environment and Climate Change Canada’s Eastern Canada Seabirds at Sea Standardized Protocol for Pelagic Seabird Surveys from Moving and Stationary Platforms and to make observations and collect seabird survey data during these activities; and
    2. monitor the drilling installation and supply vessels daily for the presence of stranded birds and follow Environment and Climate Change Canada's Procedures for Handling and Documenting Stranded Birds Encountered on Infrastructure Offshore Atlantic Canada.
26. The Proponent shall develop and implement a Fisheries Communication Plan in consultation with the Board, Indigenous groups and commercial fishers. The Proponent shall develop the Fisheries Communication Plan prior to the start of the drilling program, submit the plan as part of its Operations Authorization (OA) from the Board and implement it throughout the OA review and approval process, as well as during the planning and duration of the drilling program. The Proponent shall include in the Fisheries Communications Plan:
    1. procedures to provide timely notifications to Indigenous groups and commercial fishers of planned drilling activity and planned rig movements, a minimum of two months notification prior to the start of drilling of each well and provide subsequent updates and information as these become available;
    2. procedures to determine the requirement for a Fisheries Liaison Officer and/or fisheries guide vessel during drilling installation movement and geophysical programs;
    3. procedures to notify Indigenous groups and commercial fishers in the event of a spill or unplanned release of oil or any other substance, and communicate the results of the monitoring and any associated potential health risks referred to in condition 30 as well as to provide any associated imagery around the nature and extent of the spill;
    4. procedures to engage in two-way communication with Indigenous groups and commercial fishers in the event of a spill requiring a tier 2 or tier 3 response over the duration of the spill response; and
    5. the type of information that will be communicated to Indigenous groups and commercial fishers, and the timing of distribution of this information, that will include but not be limited to:
       1. a description of planned Project activities;
       2. location(s) of safety exclusion zones;
       3. anticipated vessel traffic schedule;
       4. anticipated vessel routes; and
       5. locations of suspended or abandoned wellheads.
27. The Proponent shall develop and implement a well and wellhead abandonment plan and submit it to the Board for acceptance at least 30 days prior to abandonment of each well. If the Proponent proposes to abandon a wellhead on the seafloor in a manner that may interfere with Indigenous or commercial fisheries, the Proponent shall develop the wellhead abandonment strategy in consultation with commercial fishers and potentially affected Indigenous groups with fishing licences that overlap with the Project Area, identified in consultation with Fisheries and Oceans Canada.
28. The Proponent shall provide the details of its operation, including the safety exclusion zones during drilling and testing, and the location information of abandoned wellheads if left on the seafloor, to the Marine Communications and Traffic Services for broadcasting and publishing in the Notices to Shipping, to the North Atlantic Fisheries Organization Secretariat, and to the Canadian Hydrographic Services for future nautical charts and planning.
29. The Proponent shall report annually to the Board on known incidents of lost or damaged fishing gear attributed to the Project and make this information available to Indigenous groups upon their request.
30. The Proponent shall take all reasonable measures to prevent accidents and malfunctions that may result in adverse environmental effects and mitigate any adverse environmental effects from accidents and malfunctions that do occur. In doing so, the Proponent shall:
    1. develop and implement operating procedures including thresholds for cessation of a work or activity, with respect to meteorological and oceanographic conditions experienced at the project location, and which reflect the facility’s design limits and limits at which any work or activity may be conducted safely and without causing adverse environmental effects. These conditions include poor weather, high sea state, and presence of sea ice or icebergs; and
    2. implement emergency response procedures and contingency plans developed in relation to the Project in the event of an accident or malfunction.
31. The Proponent shall develop, in consultation with the Board and Environment and Climate Change Canada, and implement for the duration of the drilling program, a physical environment monitoring program, in accordance with the Newfoundland Offshore Petroleum Drilling and Production Regulations that meets or exceeds the requirements of the Offshore Physical Environmental Guidelines (September 2008). The physical environmental monitoring program shall be submitted to the Board for acceptance prior to commencing the start of the drilling program.
32. The Proponent shall prepare a plan for avoidance of drilling installation collisions with vessels and other hazards that may reasonably be expected in the Project Area and submit the plan to the Board for acceptance prior to the start of the drilling program.
33. The Proponent shall prepare an Ice Management Plan that will include measures for avoidance of collisions with icebergs and submit the plan to the Board for acceptance prior to prior to the start of the drilling program.
34. The Proponent shall prepare and submit to the Board well control strategies prior to the start of the drilling program. The well control strategies shall include:
    1. measures for well capping and containment of fluids released from well and the drilling of a relief well, as well as options to reduce overall response timeline; and
    2. measures to quickly disconnect the marine drilling riser from the well in the event of an emergency or extreme weather conditions.
35. The Proponent shall develop and implement procedures to maintain up-to-date information on availability of capping stack(s), vessels capable of deploying the capping stack(s), and drilling rigs capable of drilling a relief well at the Project site prior to and during the drilling of each well. The Proponent shall communicate this information to the Board and update the Board, when any of this information changes, prior to and during the drilling of each well.
36. The Proponent shall prepare a Spill Response Plan and provide a draft of the plan to Indigenous groups for comment, taking into consideration these comments prior to submitting the plan to the Board for acceptance. The plan shall be submitted to the Board for acceptance prior to the start of the drilling program. The Spill Response Plan will include the following:
    1. procedures to respond to and mitigate the potential environmental effects of a spill of any substance that may cause adverse environmental effects, including spill containment and recovery procedures;
    2. reporting thresholds and notification procedures;
    3. measures for wildlife response, protection and rehabilitation, including procedures for the collection and cleaning of marine mammals, migratory birds, sea turtles and species at risk, and measures for shoreline protection and clean-up; and
    4. roles and responsibilities for offshore operations and onshore responders.
37. The Proponent shall conduct an exercise of the Spill Response Plan prior to drilling activities as recommended in the Newfoundland Offshore Drilling and Production Guidelines, document any deficiencies observed during this exercise and provide these deficiencies to the Board for review, and adjust the plan to the satisfaction of the Board to address any deficiencies identified during the exercise.
38. The Proponent shall review the Spill Response Plan prior to the drilling of each well to verify that it continues to be appropriate and shall update the plan as necessary and in a manner acceptable to the Board.
39. In the event of a spill or unplanned release of oil or any other substance that may cause adverse environmental effects, the Proponent shall notify the Board and any other relevant authorities as soon as possible, and implement its Spill Response Plan, including procedures for notification of Indigenous groups and commercial fishers developed in condition 26 c). As required by and in consultation with the Board, this may include monitoring the environmental effects of a spill on components of the marine environment until specific endpoints identified in consultation with relevant authorities are achieved. As applicable, this may include:
    1. sensory testing of seafood for taint, and chemical analysis for oil concentrations and any other contaminants, as applicable;
    2. measuring levels of contamination in recreational, commercial and traditionally harvested fish species with results integrated into a human health risk assessment, to be submitted to relevant authorities, to determine the fishing area closure status;
    3. monitoring for marine mammals, sea turtles and birds for signs of contamination or oiling and reporting results to the Board, Fisheries and Oceans Canada, and Environment and Climate Change Canada; and
    4. monitoring benthic organisms and habitats in the event of a spill or other event that could result in smothering or localized effects to the benthic environment.
40. The Proponent shall undertake a Spill Impact Mitigation Assessment or Net Environmental Benefit Analysis to identify spill response options that will be implemented in the case of a spill to provide for the best opportunities to minimize environmental consequences, and provide it to the Board for review prior to the start of the drilling program.
41. The Proponent shall provide Indigenous groups with the results of the exercise conducted pursuant to condition 37, following its review by the Board. The Proponent shall provide the final Spill Response Plan to Indigenous groups prior to the start of the drilling program and any updates to the Spill Response Plan pursuant to condition 38.
42. In the event of an uncontrolled sub-sea release from the well, the Proponent shall begin the immediate mobilization of subsea containment and capping equipment to the site of the uncontrolled subsea release. Simultaneously, the Proponent shall commence mobilization of a relief well drilling installation.
43. If drilling is anticipated in water depths in excess of 2 500 m or less than 500 m, the Proponent shall undertake further analysis to confirm the capping stack technology selected can be deployed and operated safely at the proposed depth and submit this analysis to the Board for acceptance.
44. In the event of an accident or malfunction, the Proponent shall comply with the requirements of the Accord Acts and the Canada-Newfoundland and Labrador Offshore Financial Requirement Regulations and the requirements described in the Compensation Guidelines Respecting Damages Relating to Offshore Petroleum Activity.
45. The Proponent shall report annually to the Board on the effectiveness of operating procedures and cessation of work or activity thresholds, established for operating in poor weather, high sea state, and sea ice or iceberg conditions. The report shall include a description of any modifications to operations implemented in response to adverse environmental conditions, in accordance with the Newfoundland Offshore Petroleum Drilling and Production Regulations.
46. The Proponent shall submit to the Board a schedule for each condition set out in this regulation at least 30 days prior to the start of drilling program. This schedule shall detail all activities planned to fulfill each condition and the commencement and estimated completion month(s) and year(s) for each of these activities.
47. The Proponent shall submit to the Board a schedule outlining all activities required to carry out all phases of the Project no later than 30 days prior to the start of the drilling program. The schedule shall indicate the commencement and estimated completion month(s) and year(s) and duration of each of these activities.
48. The Proponent shall submit to the Board in writing an update to schedules referred to in conditions 46 and 47 every year until completion of all activities referred to in each schedule.
49. The Proponent shall provide to the Board revised schedules if any change is made to the initial schedules referred to in condition 46 and 47 or to any subsequent update(s) referred to in condition 48, upon revision of the schedules.
50. The Proponent shall maintain all records required to demonstrate compliance with the conditions set out in this regulation. The Proponent shall provide the aforementioned records to the Board upon demand within a timeframe specified by the Board.
51. The Proponent shall retain all records referred to in condition 50 at a facility in Canada. The records shall be retained and made available for a minimum of five years after completion of the Project, unless otherwise specified by the Board. The Proponent shall inform the Board of the location of the facility where records are retained and notify the Board at least 30 days prior to any change to the location of the facility.
52. The Proponent shall notify the Board of any change to the contact information of the Proponent.
53. The Proponent shall incorporate new technologies (e.g. radar, infrared imaging, high definition aerial surveys, telemetry studies, etc.) as they become available into their seabird monitoring programs to complement research on, and mitigation of, light attraction.
54. The Proponent shall include general awareness regarding seabird strandings as part of its overall training / orientation programs for offshore workers.
55. The proponent must provide the written notice required under ss. 112 (3) to the Agency at least 90 days prior to the start of a drilling program.

Annex 2 - Proposed information requirements for notification to the Impact Assessment Agency of Canada

When a proponent is proposing to carry out a project that is described in the regulation, it must notify the Agency in writing that it intends to carry out the project and include in the notification these proposed information requirements. Note that the following measures represent the policy intent and that the text may differ in the final regulation.

1. All information provided to the Agency should be in a machine-readable format; and include a plain-language summary in English and in French.
2. The project’s name, type and proposed location and exploration licence numbers.
3. The proponent’s name and contact information.
4. A summary of any engagement undertaken with the Indigenous peoples of Canada, including a summary of key issues raised and the results of the engagement, and a brief description of any planned future engagement.
5. Information that activity is within the geographic scope of the regulation, include the geographic coordinates of the project area corner points as well as site maps produced at an appropriate scale that demonstrate the project’s proposed general location and the spatial relationship of the project components in relation to the Regional Assessment Area.
6. A list of all activities, infrastructure, permanent or temporary structures and physical works to be included in and associated with the construction, operation, decommissioning of the project. Include existing structures or related activities that will form part of or are required to accommodate or support the project.
7. Relevant metrics of project size.
8. A description of any financial support that federal authorities are, or may be, providing to the project.
9. A list of the permits, licenses or other authorizations that may be required by jurisdictions that have powers, duties or functions in relation to an assessment of the project’s environmental effects.
10. Where a project is proposed to occur within an other effective area-based conservation measure in the marine environment (e.g., marine refuge), aggregations of habitat-forming corals or sponges or a Northwest Atlantic Fisheries Organization Fisheries Closure Area, the proponent shall outline how it intends to address any effects of these activities on the various environmental characteristics and sensitivities present within the special area(s), and provide this outline to Fisheries and Oceans Canada.

Annex 3 – Response to the Committee’s recommendations related to the regulation

Committee’s Recommendations related to the regulation	Government Response
1) The various mitigation and follow-up measures that have been included as conditions of environmental assessment (EA) approval for recent exploratory drilling projects in the Study Area under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) (as summarized earlier in Section 4.5) should be requirements for all future exploratory drilling projects in the Study Area (Section 4.6.1).	The mitigation and follow-up measures that have been included as conditions of environmental assessment in recent decision statements for these projects, as well as any additional mitigation measures identified in the committee’s summary from section 4.5 of their report, have been proposed for inclusion in the regulation. See section 1 to 55 of the regulation under Annex 1.
2) Operators undertaking exploratory drilling activity in the Study Area should be required to assign trained (to Environment and Climate Change Canada – Canadian Wildlife Service (ECCC-CWS) standards, once finalized) and experienced seabird observers on drill rigs and supply vessels, whose primary responsibility is to make observations and collect seabird survey data during these activities (Section 4.6.1).	Incorporated in section 25a). See Annex 1.
3) Operators be required to prepare and submit their Fisheries Communication Plan at the time of, and as part of, their application for an Operations Authorization (OA) from the Canada-Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB), in order to ensure its timely development and implementation. The communication measures outlined in that Plan should be implemented throughout the OA review and approval process, as well as during the planning and conduct of the proposed exploratory drilling program in question (Section 4.6.1).	Incorporated in section 26. See Annex 1.
4) Operators commence the notification process at least two months prior to starting a well (as opposed to the two weeks’ notice that has previously been specified), and provide subsequent updates and information as these become available. Operators should also be required to demonstrate that (and how) they will provide more timely notifications to these parties regarding planned rig movements (Section 4.6.1).	Incorporated in section 26 a). See Annex 1.
5) Operators be required to demonstrate concrete, measurable steps to minimize light attraction effects on migratory birds (including the additional mitigation and monitoring requirements outlined previously in Section 4.6) (Section 4.6.1). Reduce the amount of artificial lighting by adjusting the intensity, duration and frequency of the artificial lighting to the extent possible without compromising safety; Document any changes made to lighting regimes to allow for an evaluation of the effectiveness of the mitigation on light attraction; Support/conduct research to identify changes in light spectrum, type, and/or intensity that may further reduce attraction for storm-petrels and other seabirds; Notify the C-NLOPB at least 30 days in advance of non-emergency flaring to allow the Board to determine whether flaring would occur during a period of migratory bird vulnerability and determine how the operator plans to avoid adverse environmental effects on migratory birds; In order to reduce effects on birds and associated air emissions, limit flaring to the length of time required to characterize the wells' hydrocarbon potential and as necessary for the safety of the operation; Minimize the number of flaring events, to the extent feasible, during nighttime and poor weather conditions, as well as during seasonal periods of bird vulnerability; and When flaring occurs, have a dedicated Seabird Observer monitor and document bird behaviour around the flare, and assess the effectiveness of flare shields and water curtains in mitigating flare-bird interactions, as applicable.	Incorporated in section 24. See Annex 1.
6) In addition to observer-based monitoring, operators should incorporate new technologies (e.g. radar, infrared imaging, high definition aerial surveys, telemetry studies, etc.) as they become available into their seabird monitoring programs to complement research on, and mitigation of, light attraction (Section 4.6.1).	Added as a new condition in section 53. See Annex 1.
7) Operators include general awareness regarding seabird strandings as part of their overall training / orientation programs for offshore workers (Section 4.6.1).	Added as a new condition in section 54. See Annex 1.
8) For any future exploratory drilling activities in the Study Area that are proposed to occur within a currently defined Marine Refuge (Fisheries and Oceans Canada, DFO) or a Northwest Atlantic Fisheries Organization (Northwest Atlantic Fisheries Organization, NAFO) Fisheries Closure Area, any exemption from the federal IA process be contingent on the operator demonstrating that any risks to intended biodiversity / conservation outcomes of that area will be avoided or mitigated. Specifically, it is recommended that the operator be required to outline, in its project notification to the Impact Assessment Agency of Canada (IAAC) (see Section 8.1.2 below), its plans (to be developed in consultation with DFO) to address any effects of these activities on the various environmental characteristics and sensitivities present within the special area(s). In the case of a Marine Refuge, it is recommended that the operator be required to provide evidence in that submission that the Minister of DFO is satisfied that that risks to intended biodiversity outcomes are avoided or mitigated and that this determination by DFO be made on clearly defined criteria which should be clearly referenced in the above.	The most recent project-specific decision statement includes conditions that address the Committee’s recommendation to avoid and mitigate potential impacts to marine biodiversity and conservation objectives. The Government of Canada is proposing to include the same requirements as conditions 15 and 16 of the regulation (see Annex 1). Prior to commencing any drilling activities and before receiving an authorization from the Board, proponents would be required to meet these conditions. Embedding these requirements as part of regulatory conditions aligns with how proponents plan their projects and work with regulators, such as the Board and DFO, to demonstrate compliance. As proposed by the Committee, the proponent would also be required to outline how it intends to address any effects of these activities to these areas and provide it to Fisheries and Oceans Canada, at the time of notification (Annex 2, s. 10).
9) The Committee recommends that the IAAC consult with applicable government departments and agencies, Indigenous and stakeholder groups and the public in the development of the above referenced Ministerial Regulation.	The Government of Canada is committed to engaging to hear the views of Indigenous peoples, the public and other stakeholders during regulatory development. Through this Discussion Paper, the Government is seeking views on the proposed elements to be included in the regulation. Engagement opportunities will also be made available during reviews to this regulation.
10) It is therefore recommended that any such regulation, and the associated procedures for seeking and confirming such an exemption, include and address the following: The operator seeking such an exemption be required to provide a notification and description of its proposed exploratory drilling activities to the IAAC. In that submission, the operator provide details clearly demonstrating its planned compliance with the conditions for exemption as outlined in that regulation (or demonstrated equivalencies for any measures that are clearly shown to be not technically or economically feasible for that particular program). The operator must also demonstrate that it has undertaken engagement with Indigenous and stakeholder groups on the planned exploratory drilling program in question, including describing the nature and outcomes of that engagement. This submission by an operator be announced publicly and made available by the IAAC on its Registry for a 30 day public review period within which all interested parties will have the opportunity to provide input to the IAAC in making the determination referenced below. Once a determination has been made by the IAAC whether or not the proposed exploratory drilling program in question is in conformance with the regulation (and thus, whether it is or is not exempt from federal IA requirements), a notification of this outcome be announced publicly and made available by the IAAC on its Registry.	Proponents of projects that are described in the regulation are required under paragraph s. 112(3) of the IAA to notify the Agency in writing that they intend to carry out the project and include in the notification the information requirements that are set out in the regulation. The proposed notification requirements are set out in Annex 2. This includes all of the Committee’s recommended information with the exception of details demonstrating the proponent’s planned compliance with the conditions. Instead, the proponent will be required to demonstrate compliance with the conditions of the regulation throughout the lifecycle of the project (see Annex 2). Upon receipt of the notice, the Agency will verify that the proposed project type is designated by the regulation and is located within the geographical area covered by the regulation. The proponent will be required to demonstrate compliance with the conditions of the regulation throughout the lifecycle of the project. The Agency will make notices available on its website.
11) If, as described above, a determination is made that a proposed drilling program is in conformance with the regulation and thus is exempt from federal impact assessment requirements, it is recommended that such an exemption be linked to a defined time period, such as for the duration of the Exploration Licence in question. This will help allow the operator to plan and implement its drilling program with early and on-going clarity on its obligations, even in the event that there is a future change to the regulation.	The exclusion would apply to activities as described in the Physical Activities Regulations, namely offshore exploratory wells in the first drilling program as set out in the exploration license(s) provided by the Board. Offshore exploratory wells proposed in subsequent drilling programs within the same exploratory license(s) would not be captured by this designation. However, they would also not be subject to the IAA, unless designated by the Minister, as they are not described as a “designated project” under the Physical Activities Regulations.
14) It is recommended that the above referenced Ministerial Regulation be reviewed and updated as required based on the availability of new information or analysis obtained through an update to this Regional Assessment. The process for updating the regulation should include consultation with Indigenous and stakeholder groups and the public .	The regulation will be reviewed every five years in order to consider any potential cumulative effects, ensure the highest standards of environmental protection continue to be maintained over time and to continue benefiting from the streamlined process for the approval of these projects. The Government of Canada is committed to engaging to hear the views of Indigenous peoples, the public and stakeholders during regulatory development. Engagement opportunities will be made available during reviews to the regulation.
32) As part of the notification of Indigenous groups in the event of an offshore spill, it is recommended that the C-NLOPB require that operators include any associated imagery around the nature and extent of the spill, and information on any affected marine biota (Section 4.6.3).	While not specific to the regulation, the Government is proposing to incorporate this requirement in the regulation as part of the Fisheries Communication Plan, which would set out the procedures for notification to Indigenous groups of an accidental event and any associated health risks. See recommendation 3 in this table. Incorporated in section 26. See Annex 1.