The Navigable Waters Protection Act Regulatory Inefficiency A Prime Example

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The Navigable Waters Protection ActRegulatory
Inefficiency - A Prime Example

• Presentation to NRCan
• Regulatory Efficiency Workshop
• March 8, 2007 - Ottawa

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Overview

• The Act (NWPA)
• The Program (NWPP)
• The Challenges
• Current Initiatives

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The Act - History

• One of the oldest pieces of legislation
• 1882 An Act respecting Bridges over Navigable
  Waters constructed under authority of Provincial
  Acts
• 1883 named works added
• bridges
• booms
• Dams
• causeways
• 1886 wharves, docks, piers, and other
  structures added
• 1985 latest amendment (purely editorial)

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The Act Administration

• Administered by NWPP Within -
• 1882 1966 Department of Public Works
• 1966 1996 Transport Canada (Canadian Coast
  Guard)
• 1996 2004 Fisheries and Oceans (Canadian
  Coast Guard)
• March 2004 Transport Canada (Marine Safety)

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The Program Mandate

• To ensure the ongoing protection and safety of
  marine navigation and the protection of the
  marine environment in Canadian navigable waters
• Definition of Navigable - .any body of water
  which is capable, in its natural state, of being
  navigated by floating vessels of any description
  for the purpose of transportation, recreation or
  commerce, and includes a canal or any other body
  of water created or altered for public use, as a
  result of the construction of any work

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The Program Organization

• NWPP FTE Distribution
• NWPP HQ 5 persons
• Quebec 7 persons
• Atlantic 15 persons
  (NS/PEI/NB)
• 9 persons
  (NFLD)
• Prairie Northern 9 persons
  (MB/SK/AB/NWT/NU/YK)
• Ontario 10 persons
• Pacific 11 persons
  
• Total NWPP Staff 66 persons (42 Officers)

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The Program Other Authorities

• Direct Responsibilities
• National Energy Board Act (Section 108 109)
• Canada Shipping Act
• Receiver of Wrecks
• Private Buoy Regulations Policy and Enforcement
• Indirect Responsibilities
• Canadian Environmental Assessment Act
• Species at Risk Act

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The Program Application Workload
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The Program EA Workload

• Environmental Assessment Considerations
• DFO transfers partially funded 9 TC EA FTES. TC
  has identified requirements for 21 EA FTEs.
  Currently risk managing shortfall.
• Number of TC EAs completed in 2003-04 123
• Number of TC EAs underway or completed between
  April 2004 and January 2005
• 763 - NWPA 611 / Other 152
• New EA responsibilities related to large and
  complex projects pipelines (incl. MVGP and
  Alaskan), LNG terminals, hydro projects,
  aquaculture and mining

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The Challenges

• Legislative
• Command and Control legislation I.e.
  advertising, plan deposit
• Navigable waters and works in until out
  concept
• Named Works no consideration of dimension or
  impact
• on navigation
• Operating Context
• New waterway uses vs. NWPP resources severe
  imbalance and increasing (i.e. aquaculture, LNG
  terminals, recreational boating etc...)
• Increasingly complex and administratively
  demanding environmental legislative framework
  (CEAA/SARA)
• increased knowledge of requirements by clients
  and opponents
• ISO certification
• Increasingly litigious culture

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The Challenges

• Resource Levels
• Gap (resources to demand for service) widening
  due, in part
• to new and expanded waterway uses (i.e.
  waterfront property development, recreational
  boating, aquaculture)
• Demand for more energy and raw materials
• Projects are increasingly remote
• More Canadian waters annually
• No cost recovery authority
• Political
• NWPA is a tool of choice for hidden agendas
• to mediate personal disputes
• to prevent development
• to achieve environmental objectives

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The Challenges Impact

• Including, but not limited to
• Inefficient use of already severely limited and
  strained resources
• Increasingly lengthy Approval process leading to
  corresponding economic and financial impacts
  to clients
• Increased potential for litigation and liability
  proportionate to the expanded use of risk
  management methodologies
• Minimal compliance monitoring and enforcement
  capability
• Increased non-compliance increased safety
  hazard
• REGULATORY INEFFICIENCY AND INEFFECTIVENESS

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Current Initiatives

• Comprehensive Departmental Resource Review
• Review levels/locations
• reallocate to provide best service to client
• Class Screenings and Exclusion List
• Work collaboratively with CEAA and clients to
  further develop, educate the client to and expand
  their use of Class Screenings and works suitable
  for Exclusion List
• Stick to Mandate
• We have redrafted Canada Gazette and Public
  Advertisement Notices to indicate response to
  only navigational issues.
• Review of NWPP Processes Practices
• Perform a review of existing policies, processes
  procedures
• Streamline different processes under the NWPA to
  improve national delivery (standardization and
  consistency)

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Current Initiatives

• Risk Management
• Identify projects and develop suitable criteria
  to appropriately risk manage minor works
  projects.
• Recently approved minor work projects

• Dredging
• Water Intakes
• Erosion Protection Works
• Winter Crossings

• Aerial Cables
• Pipeline Crossings
• Decks and Boathouses
• Submarine Cables

• Minor Waterways (awaiting final approval)
• Emergency Measures (under development)

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Ultimately

• We must modernize the Act
• To respond to Canadians demands for a faster
  and more efficient approval process
• To use available program resources in a more
  efficient and effective manner
• To adapt it to respond appropriately to new
  governance strategies and policy directions
• To address repeated demands for reform from
  Provincial / Territorial / Municipal levels of
  government as well as industry (TAC, FPAC, CPPA)
• To meet government objective of Smart
  Regulation

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However

• The reality is.
• Roughly 3-4 years would be required to complete
  such an effort with a dedicated project team
• Environmental lobby will most probably view
  modernization as an attempt to water-down
  environmental responsibilities
• Not currently identified as a policy priority in
  the Conservative platform

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We will be ready

• NWPA Modernization Review
• Internal dedicated Departmental Project Team
  established in September 2006 (7 month mandate)
• Phase 1 - Internal review only at this time
• Clause-by-clause and gap analysis of existing
  legislation
• Identification of policy issues internal and
  external
• Draft Policy Framework Document
• Draft Public Consultation Discussion Paper
• Draft Communications Strategy/Plan
• Draft Memorandum to Cabinet
• Phase 2 - Approval / external consultations

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