Canada Offshore Renewable Energy Regulations: SOR/2024-272

Canada Gazette, Part II, Volume 159, Number 1

Registration
SOR/2024-272 December 16, 2024

CANADIAN ENERGY REGULATOR ACT

P.C. 2024-1328 December 16, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources, makes the annexed Canada Offshore Renewable Energy Regulations under section 312 of the Canadian Energy Regulator Act footnote a.

TABLE OF PROVISIONS

Canada Offshore Renewable Energy Regulations

Interpretation

General Requirements

PART 1

Offshore Renewable Energy — Wind Energy

Application

5 Application

Application for Authorization and Conditions of Authorization

Requirements for All Applications

6 Contents

Conditions of Every Authorization
Site Assessment

12 Application — additional contents

Construction, Operation and Maintenance
Decommissioning and Abandonment

General Requirements for Operators

Management System and Associated Plans
Integrity Management Program and Quality Assurance Program
Other Requirements
Certifying Authority and Certificate of Fitness

PART 2

Offshore Renewable Energy — Other Than Wind Energy

Application

49 Application

Requirements for All Applications

50 Contents

Conditions of Every Authorization
Implementation of Plans and Other Requirements

PART 3

Notification, Investigation, Reporting and Record-Keeping Requirements for Operators

PART 4

Coming into Force

68 Registration

Canada Offshore Renewable Energy Regulations

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Act
means the Canadian Energy Regulator Act. (Loi)
certifying authority
means an organization approved by the Regulator under subsection 40(2). (autoritĂ© de certification)
control system
means any system, station or panel used to control the operation and monitor the status of the equipment used for an offshore renewable energy project or offshore power line. (système de contrôle)
operations site
means a site where authorized work or activities are carried on in relation to an offshore renewable energy project or offshore power line. (emplacement des opérations)
operator
means an applicant for or holder of an authorization referred to in section 298 of the Act. (exploitant)
physical and environmental conditions
means any physical, geotechnical, seismic, oceanographic, meteorological or ice conditions that might affect authorized work or activities. (conditions physiques et environnementales)
reportable incident
means any of the following incidents that occur in relation to an offshore renewable energy project or offshore power line:
  • (a) a loss of life;
  • (b) an injury that prevents an employee from reporting for work or from effectively performing all the duties connected with the employee’s regular work on any day subsequent to the day on which the injury occurred, whether or not that subsequent day is a working day for that employee;
  • (c) a fire or explosion;
  • (d) a collision;
  • (e) any incident that has an adverse effect on the environment, produces debris or introduces into the environment any substance or form of energy that is likely to have an adverse effect on the environment, unless that adverse effect, production or introduction is authorized or explicitly anticipated in an application for an authorization;
  • (f) any incident that results in damage to an archaeological site or burial ground;
  • (g) a significant disruption to authorized work or activities due to the carrying on of an activity, or the introduction into the environment of a substance, by a person unrelated to the project or power line;
  • (h) an impairment to the reliability of the power system of the project or power line;
  • (i) the impairment of any facility, equipment or system that is critical to safety, security or environmental protection or the impairment of a support craft;
  • (j) any incident that results in the implementation of emergency response procedures. (incident Ă  signaler)
support craft
means a vessel, vehicle, aircraft or other conveyance used to provide transportation or assistance to persons at an operations site. (véhicule de service)
vessel
has the same meaning as in section 2 of the Canada Shipping Act, 2001. (navire)

Incorporation by reference

2 (1) In these Regulations, any incorporation by reference of a document is an incorporation of that document as amended from time to time.

Bilingual document

(2) Despite subsection (1), if a document that is incorporated by reference is available in both official languages, any amendment to it is incorporated only when the amended version is available in both official languages.

General Requirements

Carrying on work or activities

3 For the purposes of subsection 298(2) of the Act, information submitted in an application for an authorization must demonstrate that the work or activities will be carried on in a manner that is safe and secure, that protects property and the environment, that is in conformity with all applicable laws in respect of safety, security and environmental protection and that takes into account the potential impacts of climate change.

Level of detail

4 The information submitted in support of an application and all documents and information submitted to the Regulator to meet a condition of an authorization must provide a level of detail that is proportionate to the scope, nature and complexity of the proposed work or activities.

PART 1
Offshore Renewable Energy — Wind Energy

Application

Application

5 This Part applies in respect of offshore renewable energy projects that exploit or aim to exploit the power of the wind to generate electricity and in respect of the offshore power lines associated with those projects.

Application for Authorization and Conditions of Authorization

Requirements for All Applications

Contents

6 For the purposes of subsection 298(2) of the Act, every application for authorization to carry on work or activities in relation to an offshore renewable energy project or offshore power line must include the following information and documents:

Conditions of Every Authorization

System and plans

7 (1) For the purposes of subsection 298(9) of the Act, every authorization is subject to the condition that the operator, before the authorized work or activities begin, develop and implement

Submission and approval

(2) Every authorization is also subject to the condition that the operator submit the following information and plans to the Regulator and obtain the Regulator’s approval of the information referred to in paragraph (b) and the plans before the authorized work or activities begin:

Management system

8 (1) The management system must establish the overall framework for reducing risks to safety, security and the environment, including measures for ensuring the reliable operation of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line and for ensuring an appropriate response in case of an emergency.

Overarching requirements

(2) The management system must

Standards

(3) The management system must identify the management system standards on which it is based.

Contents

(4) The management system must include overarching policies, processes, procedures and protocols related to safety, security, environmental protection, the reliability of facilities, equipment and systems, and emergency response, including

Safety plan

9 (1) The safety plan must set out the procedures, practices and resources, as well as the sequence of key safety-related activities, that are necessary to safely carry on the authorized work or activities and must include the following information:

Service providers

(2) If the operator contracts for the provision of services with respect to the authorized work or activities, the safety plan must also include

Environmental protection plan

10 (1) The environmental protection plan must set out the procedures, practices and resources to be put in place to manage environmental hazards and protect the environment and must include the following information:

Service providers

(2) If the operator contracts for the provision of services with respect to the authorized work or activities, the environmental protection plan must also include

Emergency management plan

11 (1) The emergency management plan must set out the emergency response procedures referred to in subsection (2) and any other procedures, practices and resources that are necessary to effectively prepare for, manage and respond to an emergency and must include the following information:

Emergency response procedures

(2) The emergency response procedures must cover the following subjects:

Site Assessment

Application — additional contents

12 For the purposes of subsection 298(2) of the Act, an application for authorization to carry on work or activities in relation to the site assessment for an offshore renewable energy project or offshore power line must include, in addition to the information and documents referred to in section 6,

Construction, Operation and Maintenance

Application — additional contents

13 For the purposes of subsection 298(2) of the Act, an application for authorization to carry on work or activities in relation to the construction, operation and maintenance of facilities, equipment and systems related to an offshore renewable energy project or offshore power line must include, in addition to the information and documents referred to in section 6,

Additional conditions — construction

14 For the purposes of subsection 298(9) of the Act, an authorization in relation to the construction, operation and maintenance of facilities, equipment and systems related to an offshore renewable energy project or offshore power line is, in addition to being subject to the conditions set out in section 7, subject to the condition that the operator ensure that the following documents and information are submitted to and approved by the Regulator before the authorized work or activities related to construction begin:

Facility design report

15 (1) The facility design report must contain a comprehensive description of the design of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line that are outlined in the authorization, including

Additional requirements

(2) The facility design report must also

Fabrication and construction report

16 (1) The fabrication and construction report must contain a comprehensive description of how the facilities, equipment and systems related to the offshore renewable energy project or offshore power line are to be fabricated, transported, constructed and installed, including

Additional requirements

(2) The fabrication and construction report must also

Facilities reliability report

17 (1) The facilities reliability report must describe

Additional requirement

(2) The facilities reliability report must also demonstrate that the measures referred to in paragraph (1)(a) are in conformity with all applicable laws and the conditions of the authorization.

Additional conditions — operation and maintenance

18 For the purposes of subsection 298(9) of the Act, an authorization in relation to the construction, operation and maintenance of facilities, equipment and systems related to an offshore renewable energy project or offshore power line is, in addition to being subject to the conditions set out in sections 7 and 14, subject to the condition that the operator ensure that the following documents and information are submitted to and approved by the Regulator before the authorized work or activities related to operation and maintenance begin:

Integrity management program

19 (1) The integrity management program must be aimed at ensuring that all facilities, equipment and systems related to the offshore renewable energy project or offshore power line

Risk assessment

(2) The integrity management program must be based on a risk assessment that is conducted in accordance with industry best practices and that takes into account the assumptions on which the design is based.

Monitoring, inspection and testing

(3) The integrity management program must set out the measures to be taken by the operator to monitor the condition of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line and to conduct periodic inspections and testing, and must include

Additional requirement

(4) The finalized version of the integrity management program must also include the certification statement referred to in paragraph 40(3)(c).

Documentation of results

(5) The operator must document the results of the monitoring, inspection and testing carried out for the purposes of the integrity management program.

Decommissioning and Abandonment

Application — additional contents

20 For the purposes of subsection 298(2) of the Act, an application for authorization to carry on work or activities in relation to the decommissioning and abandonment of facilities, equipment and systems related to an offshore renewable energy project or offshore power line must include, in addition to the information and documents referred to in section 6,

Additional conditions — decommissioning and abandonment

21 For the purposes of subsection 298(9) of the Act, an authorization in relation to the decommissioning and abandonment of facilities, equipment and systems related to an offshore renewable energy project or offshore power line is, in addition to being subject to the conditions set out in section 7, subject to the condition that the operator ensure that the following document and information are submitted to and approved by the Regulator before the authorized work or activities related to decommissioning and abandonment begin:

Decommissioning and abandonment plan

22 The decommissioning and abandonment plan must include the following information:

General Requirements for Operators

Management System and Associated Plans

Implementation

23 (1) The operator must continue to implement the management system, safety plan, environmental protection plan and emergency management plan referred to in section 7 for the entire duration of the authorized work or activities in relation to the offshore renewable energy project or offshore power line.

Updates

(2) The operator must ensure that the management system, safety plan, environmental protection plan and emergency management plan are updated periodically to ensure that they continue to meet the requirements set out in sections 8, 9, 10 and 11, respectively.

Financial and human resources

24 (1) The operator must ensure that there are sufficient financial and human resources to implement and continually improve the management system, safety plan, environmental protection plan and emergency management plan.

Accountable person

(2) The operator must designate one of its employees as the accountable person for the management system, safety plan, environmental protection plan and emergency management plan and ensure that the accountable person has the necessary authority for assigning financial and human resources to develop, implement and make ongoing improvements to that system and those plans.

Change — accountable person

(3) If there is any change to the name, position or contact information of the accountable person that was submitted under paragraph 7(2)(a), the operator must provide updated information to the Regulator as soon as feasible.

Integrity Management Program and Quality Assurance Program

Integrity management program

25 (1) The operator must implement the integrity management program referred to in paragraph 18(a) for the entire duration of the authorized work or activities in relation to the operation and maintenance of the offshore renewable energy project or offshore power line.

Updates

(2) The operator must ensure that the integrity management program is updated periodically so that it continues to meet the requirements set out in section 19.

Quality assurance program

26 (1) The operator must develop a quality assurance program in respect of the fabrication, transportation, installation and commissioning of all facilities, equipment and systems related to the offshore renewable energy project or offshore power line and any components used in the maintenance of those facilities, equipment and systems.

Requirements

(2) The quality assurance program must be comprehensive and must set out the requirements for monitoring, documenting and managing quality to ensure that the facilities, equipment and systems are fit for the purposes for which they are to be used.

Conformity with recognized standard

(3) The quality assurance program must be in conformity with a recognized Canadian or international standard for quality management.

Implementation

(4) The operator must implement the quality assurance program for the entire duration of the authorized work or activities other than work or activities related to site assessment.

Updates

(5) The operator must ensure that the quality assurance program is updated periodically.

Other Requirements

Carrying on of authorized work or activities

27 (1) The operator must carry on all authorized work or activities in a manner that ensures safety, security and environmental protection by

Equipment and systems

(2) The operator must ensure that

Assignment of duties

(3) The operator must ensure that persons who are assigned duties or who carry on authorized work or activities

Navigational safety zones

28 (1) The operator must take measures to protect facilities, equipment and systems at an operations site against collision with vessels, vehicles, aircraft and other conveyances operating in the vicinity of the facilities, equipment and systems from the time their construction begins until their decommissioning and abandonment is completed, including by

Boundaries of navigational safety zone

(2) The establishment of the boundaries of a navigational safety zone must be informed by the risk assessment referred to in paragraph 13(d) or 20(d) as it relates to the risks associated with navigation in the vicinity of the facilities, equipment or systems at the operations site, but the distance between the outer extremity of the facilities, equipment or systems and the perimeter of the safety zone must not exceed 500 m in any direction, except as permitted under paragraph 5 of Article 60 of Part V of the United Nations Convention on the Law of the Sea.

Routing systems and measures

(3) A navigational safety zone must not interfere with the use of established routing systems and routing measures related to navigational safety.

Design requirements

29 (1) The operator must ensure that all facilities, equipment and systems related to the offshore renewable energy project or offshore power line are designed

Factors to be taken into account

(2) The design of the facilities, equipment and systems must take into account their intended use, their location and any site-specific physical and environmental conditions.

Physical and environmental conditions

(3) The operator must ensure that every facility related to the offshore renewable energy project or offshore power line is designed to withstand or avoid all reasonably foreseeable site-specific physical and environmental conditions, including any reasonably foreseeable combination of those conditions, without its structural integrity or any associated equipment or systems that are critical to safety, security and environmental protection being compromised.

Target levels

30 (1) The operator must establish measurable target levels of safety, security and environmental protection for each work or activity carried on in relation to the offshore renewable energy project or offshore power line.

Quantitative or qualitative assessment

(2) The target levels of safety, security and environmental protection must be based on a quantitative assessment unless quantitative assessment methods are inappropriate or the quantitative data is not reliable, in which case the target levels must be based on a qualitative assessment.

Critical software

31 (1) The operator must ensure that any software that is critical to safety, security or environmental protection is

Modifications to software features

(2) The features of the software referred to in subsection (1) must not be modified unless the necessary internal approvals for the modification are obtained, including the approval of the facility manager.

Testing and validation

(3) The modified software must not be used until it has been tested and validated in accordance with paragraph (1)(c).

Software-dependent control systems

32 If the failure or malfunction of any integrated software-dependent control systems would cause a hazard to safety, security or the environment, the operator must ensure that

Rescue boat

33 The operator must ensure that a rescue boat is available and ready for use in the event of an emergency at all times when personnel are present in the offshore area for the purposes of carrying on authorized work or activities.

Requirements for vessels

34 The operator must ensure that every vessel that is used to carry on authorized work or activities is suitable for the operations site at which it is used and for the nature of the work or activities.

Evacuation systems and equipment

35 In determining the number of persons that any lifeboat, life raft or marine evacuation system can accommodate, the operator must take into consideration each person’s weight while the person is wearing an immersion suit, as well as the space they require while wearing such a suit.

Third-party assessment

36 The operator must ensure that a competent third party verifies all equipment that is installed temporarily on a vessel that is used in connection with any authorized work or activities to ensure that the equipment is fit for the purpose for which it is to be used and is secured in a seaworthy manner.

Landing area

37 (1) If personnel will be transported by aircraft to or within an operations site or between operations sites, the operator must ensure that the landing area for the aircraft, or for any person or cargo being raised to or lowered from the aircraft, is designed to ensure safety, security and environmental protection, including the prevention of incidents or damage due to the use of an aircraft.

Specific requirements

(2) The operator must ensure that the landing area

Specific requirements — landing and takeoff

(3) The operator must ensure that any area used for the landing or takeoff of aircraft is capable of accommodating aircraft of expected sizes and is equipped with

Procedures and training program

38 (1) The operator must ensure that

Aircraft service provider

(2) Before any authorized work or activities that require the use of an aircraft begin, the operator must ensure that the aircraft service provider has accepted in writing to

Access to documents and information

39 The operator must ensure that a copy of the following documents and information is readily accessible at each operations site when personnel are present and at all times at every associated control centre and emergency response operations centre:

Certifying Authority and Certificate of Fitness

Certifying authority

40 (1) The operator must engage the services of an organization to serve as a certifying authority.

Approval by Regulator

(2) The organization engaged by the operator must be approved as a certifying authority by the Regulator based on the organization’s qualifications to assume the responsibilities referred to in subsection (3).

Responsibilities of certifying authority

(3) The certifying authority is responsible for

Operator’s obligations

41 The operator must ensure that

Scope of work

42 The certifying authority must submit a scope of work to the Regulator for approval and obtain the Regulator’s approval before undertaking the relevant activities referred to in subsection 40(3) in relation to the construction, operation and maintenance of the facilities, equipment and systems related to an offshore renewable energy project or offshore power line.

Performance of functions

43 In performing its functions, the certifying authority must

Certificate of fitness

44 (1) The certifying authority may, on the basis of the activities referred to in subsection 40(3), issue a certificate of fitness in respect of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line.

Fitness for purpose

(2) The certificate of fitness must confirm that the facilities, equipment and systems are fit for the purposes for which they are to be used and can be operated without posing a threat to safety, security or the environment.

Limitations on operation

(3) The certificate of fitness may set out limitations in relation to the operation of the facilities, equipment and systems that the certifying authority considers necessary to ensure that their operation does not pose a threat to safety, security or the environment.

Copy provided to Regulator

(4) The certifying authority must provide a copy of the certificate of fitness to the Regulator.

Inspection plans

45 (1) The certifying authority must prepare a plan for the periodic inspection of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line during their construction and during their operation and maintenance and provide those plans to the Regulator.

Review of operator’s records

(2) The inspection plan must

Scope and frequency of inspections

(3) The certifying authority must establish the scope and frequency of the periodic inspections based on a risk assessment conducted in accordance with prevailing industry standards and best practices.

Changes to inspection plan

(4) The certifying authority must, as soon as circumstances permit, inform the Regulator of any material changes to the inspection plan.

Independence and impartiality

46 (1) The certifying authority must not issue a certificate of fitness in respect of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line unless the certifying authority is able to fulfill its responsibilities under subsection 40(3) with independence and impartiality, including by ensuring that

Notification of conflict of interest

(2) The certifying authority must monitor for real, potential or perceived conflicts of interest throughout the period that it acts as certifying authority for the operator and must, without delay, notify the operator and the Regulator of any such conflicts that are identified.

Change of certifying authority

47 (1) If the operator decides to replace the certifying authority with a new certifying authority, the operator must provide the name of the organization that the operator proposes to engage as the new certifying authority to the Regulator, along with a description of the organization’s qualifications to assume the responsibilities referred to in subsection 40(3).

Before issuance of certificate

(2) If the operator engages a new certifying authority before the initial certificate of fitness is issued, the new certifying authority must carry out its own independent assessment, monitoring, inspection, verification and validation activities for the purposes of issuing the certificate.

After issuance of certificate

(3) If the operator engages a new certifying authority after a certificate of fitness has been issued, the operator must develop and submit to the Regulator a transition plan outlining all of the activities to be carried out by the parties before the transition from the former to the new certifying authority and demonstrating that the transition will not result in any gaps, delays or negative effects on the extent and quality of the activities referred to in subsection 40(3).

Implementation of transition plan

(4) The operator must ensure that the transition plan is implemented.

One certificate and one authority

(5) There must be no more than one certificate of fitness and one certifying authority in relation to an offshore renewable energy project or offshore power line at any given time.

Annual report

48 Within 30 days after the end of each calendar year during which authorized work or activities are carried on in relation to the construction, operation and maintenance of facilities, equipment and systems related to the offshore renewable energy project or offshore power line, the certifying authority must submit a report for that year to the Regulator that includes

PART 2
Offshore Renewable Energy — Other Than Wind Energy

Application

Application

49 This Part applies in respect of offshore renewable energy projects — other than those that exploit or aim to exploit the power of the wind to generate electricity — and the offshore power lines associated with those projects.

Requirements for All Applications

Contents

50 For the purposes of subsection 298(2) of the Act, every application for authorization to carry on work or activities in relation to an offshore renewable energy project or offshore power line must include the following information and documents:

Conditions of Every Authorization

Plans

51 (1) For the purposes of subsection 298(9) of the Act, every authorization is subject to the condition that the operator, before the authorized work or activities begin, develop and implement

Submission and approval

(2) Every authorization is also subject to the condition that the operator submit the following information and plans to the Regulator and obtain the Regulator’s approval of the information referred to in paragraph (e) and the plans before the authorized work or activities begin:

Safety plan

52 (1) The safety plan must set out the procedures, practices and resources , as well as the sequence of key safety-related activities, that are necessary to safely carry on the authorized work or activities and must include the following information:

Service providers

(2) If the operator contracts for the provision of services with respect to the authorized work or activities, the safety plan must also include

Environmental protection plan

53 (1) The environmental protection plan must set out the procedures, practices and resources to be put in place to manage environmental hazards and protect the environment and must include the following information:

Service providers

(2) If the operator contracts for the provision of services with respect to the authorized work or activities, the environmental protection plan must also include

Emergency management plan

54 (1) The emergency management plan must set out the emergency response procedures referred to in subsection (2) and any other procedures, practices and resources that are necessary to effectively prepare for, manage and respond to an emergency and must include the following information:

Emergency response procedures

(2) The emergency response procedures must cover the following subjects:

Implementation of Plans and Other Requirements

Implementation

55 (1) The operator must ensure that there are sufficient financial and human resources to implement and continually improve the safety plan, environmental protection plan and emergency management plan.

Accountable person

(2) The operator must designate one of its employees as the accountable person for the safety plan, environmental protection plan and emergency management plan and ensure that the accountable person has the necessary authority for assigning financial and human resources to develop, implement and make ongoing improvements to those plans.

Change — accountable person

(3) If there is any change to the name, position or contact information of the accountable person that was submitted under paragraph 51(2)(a), the operator must provide updated information to the Regulator as soon as feasible.

Conduct of authorized work or activities

56 (1) The operator must carry on all authorized work or activities in a manner that ensures safety, security and environmental protection by

Equipment and systems

(2) The operator must ensure that

Assignment of duties

(3) The operator must ensure that persons who are assigned duties or who carry out authorized work or activities

Navigational safety zones

57 (1) The operator must take measures to protect facilities, equipment and systems at an operations site against collision with vessels, vehicles, aircraft and other conveyances operating in the vicinity of the facilities, equipment and systems from the time their construction begins until their decommissioning and abandonment is completed, including by

Boundaries of navigational safety zone

(2) The establishment of the boundaries of a navigational safety zone must be informed by the risk assessment referred to in paragraph 50(l) as it relates to the risks associated with navigation in the vicinity of the facilities, equipment or systems at the operations site, but the distance between the outer extremity of the facilities, equipment or systems and the perimeter of the safety zone must not exceed 500 m in any direction, except as permitted under paragraph 5 of Article 60 of Part V of the United Nations Convention on the Law of the Sea.

Routing systems and measures

(3) A navigational safety zone must not interfere with the use of established routing systems and routing measures related to navigational safety.

Design requirements

58 (1) The operator must ensure that all facilities, equipment and systems related to the offshore renewable energy project or offshore power line are designed

Factors to be taken into account

(2) The design of the facilities, equipment and systems must take into account their intended use, their location and any site-specific physical and environmental conditions.

Physical and environmental conditions

(3) The operator must ensure that every facility related to the offshore renewable energy project or offshore power line is designed to withstand or avoid all reasonably foreseeable site-specific physical and environmental conditions, including any reasonably foreseeable combination of those conditions, without its structural integrity or any associated equipment or systems that are critical to safety, security and environmental protection being compromised.

Rescue boat

59 The operator must ensure that a rescue boat is available and ready for use in the event of an emergency at all times when personnel are present in the offshore area for the purposes of carrying on authorized work or activities.

Requirements for vessels

60 The operator must ensure that every vessel that is used to carry on authorized work or activities is suitable for the operations site at which it is used and for the nature of the work or activities.

Evacuation systems and equipment

61 In determining the number of persons that any lifeboat, life raft or marine evacuation system can accommodate, the operator must take into consideration each person’s weight while the person is wearing an immersion suit, as well as the space they require while wearing such a suit.

Access to documents and information

62 The operator must ensure that a copy of the following documents and information is readily accessible at each operations site when personnel are present and at all times at every associated control centre and emergency response operations centre:

PART 3
Notification, Investigation, Reporting and Record-Keeping Requirements for Operators

Application

63 This Part applies in respect of all offshore renewable energy projects and offshore power lines.

Notification of incidents

64 (1) The operator must notify the Regulator of any reportable incident as soon as the circumstances permit after the incident occurs.

Investigation

(2) The operator must ensure that every reportable incident is investigated.

Incident report

(3) The operator must, within 14 days after the day on which a reportable incident occurs, submit a report to the Regulator that includes the following information:

Periodic reports

65 (1) The operator must submit periodic reports to the Regulator summarizing the following in respect of the period that has elapsed since the day on which the authorization was issued in respect of the work or activities in question or the day after the last day included in the preceding periodic report, as the case may be:

Beginning of commercial production

(2) The periodic reports must also set out the planned date for the beginning of commercial production of renewable energy, if applicable.

Frequency of submission

(3) The periodic reports must be submitted at the following frequency unless the Commission requires them to be submitted more frequently as a condition of authorization:

Final report

66 The operator must, within six months after the day on which all authorized work or activities related to the offshore renewable energy project or offshore power line are completed, submit to the Regulator a final report that includes the following information:

Record keeping

67 (1) The operator must keep, at the operator’s principal place of business in Canada, electronic records of

Disclosure of records

(2) The operator must, on request, disclose the records to the Regulator in the form and manner specified by the Regulator.

Duration of retention

(3) The records must be retained for five years after the day on which the decommissioning and abandonment of the facilities, equipment and systems related to the offshore renewable energy project or offshore power line ends, or, if the project or power line is terminated before any construction takes place, for five years after the day on which the site assessment ends.

PART 4
Coming into Force

Registration

68 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Canadian Energy Regulator Act (CER Act) came into force in 2019 setting out the legislative framework for the oversight of the full life cycle of an offshore renewable energy (ORE) project and offshore power line. The CER Act specifies what factors must be considered by the Commission in determining whether to issue an authorization to carry out any work or activity related to an ORE project or offshore power line, but it does not provide the detailed requirements that must be met by an operator in order to obtain the authorization, conditions that may be imposed on an authorization, or the requirements that must be continually met to ensure that those works or activities can be executed in a manner that protects the environment and the safety and security of persons and infrastructure.

Description: The Canada Offshore Renewable Energy Regulations (the “Regulations”) operationalize Part 5 of the CER Act by establishing comprehensive requirements respecting work and activities related to ORE projects and offshore power lines for the purposes of safety, security, and environmental protection.

Rationale: Regulations are required to operationalize the ORE regime under the CER Act and to provide the certainty needed for the ORE industry to develop in Canada. The Regulations would contribute to ensuring the safety, security, and environmental protection of ORE projects in Canada. The net impact of the Regulations was considered qualitatively, with incremental benefits including improved safety, security, and environmental outcomes for ORE projects. Incremental costs arising from the Regulations would average less than $1 million yearly and stem from the labour costs associated with mandatory reporting and inspection requirements for all ORE projects, as well as costs related to the involvement of a certifying authority at the operations phase of a wind energy project.

Issues

Part 5 of the CER Act provides the legislative framework for oversight of the full life cycle of an offshore renewable energy (ORE) project and offshore power line. The CER Act provides the authority for the Commission of the Canada Energy Regulator (CER or Regulator) to issue authorizations for any work or activity related to those projects or power lines. The CER Act specifies the factors that must be considered in determining whether to issue an authorization, but it does not provide the detailed planning and technical requirements that must be met by an operator in order to obtain the authorization, the conditions that may be imposed on the authorization, or the requirements that must be continually met to ensure that those works and activities can be executed in a manner that ensures safety, security, and environmental protection.

The Regulations are required to operationalize the ORE regime under the CER Act and to provide the certainty needed for the ORE industry to develop in Canada’s federally regulated offshore areas.

Background

Over 70% of the earth’s surface is covered by seas and oceans that contain vast energy potential that can now be harnessed through advances in ORE technologies. ORE refers to electricity that is generated from ocean-based resources, such as offshore wind, waves, tides, currents and solar.

As the world looks for cleaner sources of power, ORE is gaining prominence, with offshore wind taking the lead and accounting for most commercial ORE developments while other technologies, such as wave and tidal, continue to work through the research and demonstration stages of technology development. Globally, the offshore wind industry has grown rapidly with more than 72 000 megawatts of installed capacity in 2023, representing a more than twentyfold increase in the amount of energy produced worldwide from offshore wind since 2010. According to the International Energy Agency, global offshore wind capacity may increase fifteenfold from 2019 and attract around $1 trillion of cumulative investment by 2040.

Offshore wind energy has become increasingly competitive as costs associated with the industry begin to rapidly decline. Many international jurisdictions have set ambitious offshore wind energy targets to help meet their climate goals and electrify new industries, such as clean hydrogen production. Because offshore wind facilities are capable of producing renewable energy at scales significantly greater than those of onshore wind and solar, it opens the opportunity to scale up the production of clean hydrogen and other energy conversion technologies, which could aid in the decarbonization of the transportation and hard-to-abate energy-intensive sectors.

Canada’s vast coastlines represent significant ORE resources and untapped potential for a low-carbon economic opportunity, which could make an important contribution to Canada’s goal of net-zero emissions by 2050, the electrification and decarbonization of Canada’s economy and the advancement of Canada’s clean hydrogen industry and exports while stimulating economic opportunities for coastal provinces, territories, and communities.

On August 28, 2019, the CER Act came into force and repealed the National Energy Board Act. The CER Act created the CER, which replaced the former National Energy Board. Part 5 of the CER Act established the legislative framework for offshore renewable energy projects and offshore power lines, creating the authority to regulate the work and activities related to the full life cycle of ORE projects and offshore power lines located in the federal offshore area (which is commonly defined in maritime law as the waters falling seaward of the low water mark, excluding provincial waters located within the jaws of the land, and extending to the outer limits of the exclusive economic zone), from initial site assessment work to identify areas with potential to support ORE projects, to the eventual decommissioning and abandonment of project.

Part 5 of the CER Act also provides the authority to make regulations respecting safety, security, and environmental protection of ORE projects, to ensure industry and other stakeholders have a clear understanding of expectations regarding safety, security, and environmental protection, and to ensure ORE project proponents adopt best practices and best available technologies throughout the life cycle of projects.

Following the CER Act entering into force, Natural Resources Canada (NRCan) established the Offshore Renewable Energy Regulations Initiative (ORER Initiative) to develop the regulatory framework that would operationalize Part 5 of the CER Act and ensure that the highest level of safety, security, and environmental protection is achieved throughout the life cycle of ORE projects. The CER, as the life cycle regulator responsible for enforcing these Regulations, provided technical support and expertise to the ORER Initiative.

NRCan undertook extensive engagement on the ORER Initiative, starting in fall 2020 on the conceptual approach to the Regulations through to the proposed regulations that were pre-published in the Canada Gazette, Part I, in February 2024. Throughout the regulatory development process, more than 200 parties were engaged, including renewable energy industry companies/developers, industry associations, Indigenous groups and governments, certifying authorities, interested provinces and territories (notably the governments of Nova Scotia and Newfoundland and Labrador), regulators, fishing groups, and environmental non-governmental organizations.

The ORER Initiative proposed a combination approach of management-based and outcome-based regulatory frameworks, with a strong emphasis on safety management systems and planning, that would require operators to proactively anticipate, manage, mitigate and, where possible, eliminate potential hazards to safety, security, and the environment through various management, planning, and analysis activities. This combination approach provides the flexibility necessary to support the use of innovations in science, technologies, and methodologies that would increase safety, security, and environmental protection while reducing costs and allowing the Regulations to remain evergreen as the ORE sector evolves over time.

On October 3, 2024, Bill C-49 received Royal Assent; the Bill proposed amendments to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act (collectively referred to as the “Accord Acts”) to expand the existing offshore joint-management framework to enable new clean energy opportunities for the region and to expand the mandates of the Canada-Nova Scotia Offshore Petroleum Board and the Canada–Newfoundland and Labrador Offshore Petroleum Board to include the regulation of ORE in the respective joint-management areas. Once the legislation is in force, the CER Act will no longer apply in the Canada–Nova Scotia and Canada-Newfoundland and Labrador joint-management areas. Regulations respecting the safety, security, and environmental protection of ORE projects in those areas are required to operationalize the amended legislation. These Regulations will form the basis of the future proposed Regulations under the amended Accord Acts.

Objective

The primary objective of these Regulations is to provide a comprehensive regulatory regime to guide the work and activities related to ORE projects and offshore power lines in Canada’s federal offshore areas. The Regulations are designed to ensure that work and activities related to ORE projects and offshore power lines are undertaken in a manner that meets the prevailing industry standards and best practices for safety, security, and environmental protection.

The Regulations will also provide the certainty needed to inform development and investment decisions in Canada’s federal offshore area.

Description

The CER Act prohibits any work or activity that is related to an ORE project to be carried out in the offshore area, except in accordance with an authorization issued by the Commission of the CER. The Act defines an ORE project as including any research or assessment conducted in relation to the exploitation or potential exploitation of a renewable resource to produce energy, any exploitation of a renewable resource to produce energy, and the storage or transmission of such energy. In addition, the Act also requires that any work or activity related to the construction, operation, or abandonment of any part of an offshore power line that is in a province be authorized by the Commission.

Accordingly, the Regulations set out the requirements of an application for the authorization to carry out any work or activities related to an ORE project or offshore power line, the conditions of the authorization that must be met by an operator before the authorized work or activities can commence, and the ongoing requirements that an operator must meet while carrying out the authorized work or activity.

Given that ORE technologies are at different stages of technological readiness, the Regulations have been divided into three parts: the first part addresses the requirements for offshore wind energy projects and associated offshore power lines, where the technologies have reached large-scale global commercial development; the second part addresses the requirements for ORE projects and associated power lines other than offshore wind energy, where technologies remain primarily in the research and demonstration phase of technological development and are not expected to reach large-scale size or complexity in the near-future; and the third part addresses requirements related to reporting and record-keeping which apply to all types of ORE projects.

The regulatory requirements have been designed to be right sized for the scale and associated risk of the various types of ORE projects that may reasonably be expected in the coming decade. Part I provides a comprehensive framework for offshore wind projects, while Part II provides a regulatory framework for non-wind ORE projects. This approach for non-wind ORE is intended to ensure that the regulatory regime does not stifle development and use of new technologies.

PART I — Wind energy

Applications for authorizations

Part I sets out the requirements that an operator of an offshore wind energy project must meet in order to obtain an authorization for the suite of work or activities they propose to carry out at each major phase of a wind energy project’s life cycle — site assessment, construction and operations, and decommissioning and abandonment. This approach allows for one application and related authorization for each major phase of a wind energy project, rather than having numerous individual applications and authorizations for each discrete work or activity at each phase.

Every application

Every application related to a wind energy project, regardless of the phase of the project, would contain a minimum set of requirements, as well as phase-specific requirements, which are tailored to the nature of work and risk level associated with the respective phase.

The level of detail required in the application, as well as any documents and information submitted, must be commensurate with the scope, nature, and complexity of the proposed work or activities. For example, during the site assessment phase of a wind energy project, risks are much lower than in the construction or decommissioning and abandonment phases. The Regulations appropriately consider and reflect this difference.

Every application requires detailed information regarding the proposed work and activities. This includes

Additional application requirements — Site assessment

In addition to the requirements of every application for authorization related to a wind energy project, applications to undertake work or activities related to the site assessment phase of the project must also provide

Additional application requirements — Construction and operations

In advance of the construction and operations phase of a wind energy project, details related to the full life of the project, up to and including high-level plans for the eventual decommissioning and abandonment of project infrastructure, is required.

In addition to the requirements of every application for authorization, applications to undertake work or activities related to the construction and operations phase of a wind energy project must include project details related to the full life cycle of the project, notably the following:

The technical details required in the application for authorization at the construction and operations phase are expected to reflect the range of design parameters within which the project would be designed, while the final design details must be submitted to the Regulator as part of the conditions of authorization, ahead of any authorized work or activity commencing, as discussed further in this analysis. This approach, known as a “project envelope approach,” has been used successfully in the United States and Europe and provides flexibility for an operator to use the latest technologies and methodologies by not having to lock in the design too early in the project approval process, thereby minimizing the need for additional technical reviews, should design or technologies change during the approval process. A key element of the regulatory framework for offshore wind energy is the requirement that the operator engage the services of a certifying authority to serve as an independent, third-party assessment and verification body. Specifically, the certifying authority, which must be approved by the Regulator, would be involved in the project’s facilities, equipment, and systems from their design conception up to the end of operations.

The certifying authority must be selected by the operator, and approved by the Regulator, based on the organization’s qualifications to assume the responsibilities as outlined in the Regulations, including but not limited to

The certifying authority will communicate directly with the Regulator and will be required to develop and submit to the Regulator for approval, a scope of work for executing these responsibilities, prior to commencing any of the activities contemplated in the scope of work.

The certifying authority must also develop and submit to the Regulator an inspection plan for the periodic inspections of facilities, equipment, and systems during construction and operations of the project, and must include a schedule for the periodic review of the operator’s records from the management system to identify any changes that might affect safety, security, or environmental protection. The scope and frequency of inspections must be determined in accordance with prevailing industry standards and best practices and may involve either on-site or remote inspections.

For each calendar year, the certifying authority must also submit a report to the Regulator in relation to its oversight of any construction, operation and maintenance work or activities that were carried out by the operator during that calendar year.

Throughout the undertaking of its responsibilities, the certifying authority must monitor for real, potential, or perceived conflicts of interest and flag these with the Regulator without delay should they occur.

Additional application requirements — Decommissioning and abandonment

A project’s facilities, equipment, and systems must be abandoned in accordance with an authorization; otherwise, they are considered debris under the CER Act and the operator is financially liable. In addition to the requirements of every application for authorization, applications to undertake work or activities related to decommissioning and abandonment of an offshore wind project must also provide

Conditions of every authorization

The CER Act sets out that an authorization is subject to any conditions that may be imposed by the Commission or under the Regulations. The Regulations prescribe four main conditions that apply to every authorization, as well as conditions that relate to specific phases, of the offshore wind energy project lifecycle. An operator cannot commence the authorized work or activities until all conditions have been satisfied and accepted by the Regulator. This approach allows the operator the opportunity to obtain early approval of the general planned approach for how they will conduct the proposed work or activities related to the wind energy project while it finalizes the detailed planning requirements and technical specifications associated with the authorized work or activities.

Management system

The Regulations require the operator of a wind energy project to establish and implement a proactive and comprehensive management system for the management and coordination of the authorized work. The management system must establish the overarching direction and framework for reducing risks to safety, security, and the environment, including measures for ensuring the reliable operation of the facilities, equipment, and systems related to a wind energy project and any associated offshore power line, and to ensure appropriate response in the event of an emergency.

The management system must demonstrate the operator’s commitment to continuous improvement through the setting and achieving of measurable goals and performance indicators related to safety, security, and environmental protection. The management system must include policies, procedures, and practices to guide the planning and execution of work; processes for continuous hazard identification; processes for risk assessment and determination of appropriate corrective and preventative measures; and processes for audit and evaluation of the management system to determine whether goals and performance indicators are met. The management system must also include processes for effectively coordinating and managing the work undertaken by different parties involved in the project, as well as processes for internal and external communication regarding safety, security, environmental protection, reliability, and emergency response.

Safety plan

The safety plan builds upon the preliminary risk assessment that was submitted as part of the application for authorization and is a comprehensive document intended to guide the safe execution of work. The safety plan must set out the procedures, practices, resources, and the sequence of key safety-related activities necessary to safely carry out the authorized work or activities and includes, among other things, the following information:

Environmental protection plan

The environmental protection plan builds upon the preliminary environmental assessment that was submitted as part of the application for authorization and is a comprehensive document intended to ensure the operator will protect the environment while undertaking the authorized work or activities. The environmental protection plan must set out the procedures, practices, and resources that will be put in place to manage environmental hazards and protect the environment and must include, among other things, the following information:

Emergency response plan

The emergency response plan must set out the operator’s processes, procedures, and resources for preparing for, managing, and responding to any emergency that may arise while executing the authorized work or activities.

The operator must identify, through a hazard identification and risk assessment process, the potential incidents that may arise that would require an emergency response. The plan describes the organizational structure and chain of command for emergency response, provides a method for classifying incidents, and outlines the incident management system. It is also required to provide details on any real-time monitoring of facilities and operations that the operator intends to use, details on the drills and exercises that would be undertaken for testing procedures, and the measures to be used to inform and instruct first responders, medical facilities, organizations, and users about facility locations, potential emergencies, and safety procedures.

Additional conditions — Construction and operations

In addition to the conditions of every authorization, the following documents and information, subject to detailed requirements outlined in the Regulations, must be submitted to and approved by the Regulator before any authorized work or activities related to construction of a wind energy project commences:

In addition to the conditions of every authorization, the following documents and information must be submitted to and approved by the Regulator before any authorized work or activities related to operations of a wind energy project commences:

Additional conditions — Decommissioning and abandonment

In addition to the conditions of every authorization, the following documents and information must be submitted to and approved by the Regulator before any authorized work or activities related to the decommissioning and abandonment of a wind energy project commences:

Ongoing requirements for operators
Conduct of authorized work or activities

The Regulations require the operator to ensure that the authorized work or activities related to a wind energy project are carried out in a manner that protects safety, security, and the environment. Requirements include, but are not limited to

Design requirements

The Regulations require the operator to ensure that all infrastructure related to a project is designed to ensure safety, security, and environmental protection, taking into account their intended use, location, and associated site-specific physical and environmental conditions. The design must conform with prevailing industry standards and best practices and use the best available technologies for minimizing adverse effects on people, infrastructure, and the environment.

The operator must also design the project infrastructure to handle or avoid any reasonably foreseeable physical or environmental conditions at the specific site, including all possible combinations of these conditions. The design must ensure that the infrastructure, as well as its critical systems and equipment for safety, security, and environmental protection, remain intact and effective under these conditions.

Protection against collision and navigational safety zones

The Regulations require the operator to take measures to protect facilities, equipment, and systems at an operations site against collision with vessels, vehicles, aircraft and other conveyances operating in the vicinity of the project.

These measures could include the use of navigational safety zones, for which the operator would be required to determine, through a risk assessment, whether any such zones are necessary to protect project infrastructure against collision. The operator would need to propose any navigational safety zones to the Regulator, for its approval.

Consistent with Article 60 of the United Nations Convention on the Law of the Sea, the Regulations allow navigational safety zones of up to 500 m to be established around a facility, whether permanent or under construction, provided the safety zone does not interfere with any routing measures or systems that have been established for Canada. These routing measures and systems are typically established by either Transport Canada or the Canadian Coast Guard and are made available through the Canadian Coast Guard’s annual Notice to Mariners publication.

It is expected, however, that the maximum distance of 500 m may only be required during construction and decommissioning and abandonment activities, and that during steady state operations, the navigational safety zone may be reduced in size to minimize any impacts associated with reduced access to the operations site by other ocean users.

The operator would be required to ensure that the location of project facilities, any associated navigational safety zones, and any hazards that may exist in navigating within the vicinity of the facilities, is made available to other users of the ocean and brought to the attention of Transport Canada, the Canadian Coast Guard and the Canadian Hydrographic Service for potential inclusion in notices to mariners and/or nautical charts.

Vessels and offshore transportation considerations

In selecting any vessels to be used in the course of the authorized work or activities, the operator must ensure that vessels are suitable for the nature and location of the work or activity. In addition, in determining the number of persons that can be safely evacuated from a vessel, the operator must consider the additional space and weight considerations that arise from those evacuating personnel wearing marine abandonment/immersion suits.

The operator must ensure that a rescue boat is available and ready for use in the event of an emergency at all times when personnel are present in the offshore area for the purposes of carrying on the authorized work or activities.

If the operator intends to transport personnel to and from the offshore facilities by aircraft, the operator must ensure the aircraft landing area, or the area from where a person or cargo will be lowered or raised, is designed and maintained for safe landing and lifting/takeoff. The operator must develop procedures for the use of all equipment in the landing area, develop and provide a training program for personnel in the use of those procedures, and ensure that the aircraft service provider agrees to implement those procedures.

PART II — ORE other than wind energy

Part II sets out the requirements that an operator of an ORE project — other than a wind energy project — must meet to obtain an authorization for the individual or suite of work or activities it proposes to carry out related to the project. The requirements are similar to those required of an operator of a wind energy project, but adjusted to reflect the fact that these types of ORE projects are expected to be smaller in scale and less complex in nature. Should a proposed non-wind energy project be more complex in nature, the Regulator has the authority under the Act to require any additional information in the application it determines necessary, and the Commission has the authority under the Act to impose any additional conditions of authorization with respect to approvals that it considers necessary.

Applications for authorization

Every application related to a non-wind ORE project must provide detailed information regarding the proposed work and activities. Consistent with Part I, the level of detail required in the application, as well as any documents and information submitted, must be commensurate with the scope, nature, and complexity of the proposed work or activities. Every application must contain

Conditions of authorization

Part II of the Regulations sets out that a Safety Plan, Environmental Protection Plan, and Emergency Response Plan must be developed and implemented for the duration of the ORE projects. These plans must be approved by the Regulator ahead of the operator commencing any of the authorized work or activities. The required content of these plans under Part II is consistent with the requirements for the same plans set out in Part I, as previously described in this analysis.

In addition to these plans, the operator must also provide a description of the proposed navigational safety zones to protect project infrastructure against collision by vessels and aircraft, or a justification as to why navigational safety zones are not needed.

Ongoing requirements for operators

Part II of the Regulations also sets out the ongoing requirements that an operator must meet with respect to the conduct of work or activities, design requirements, protection against collision and navigational safety zones, and vessel considerations. These requirements under Part II are consistent with the requirements under the same headings in Part I, as previously described in this analysis.

PART III — Notification and investigation, reporting and record keeping

This Part applies to all types of ORE projects and requires the operator to notify the Regulator of any reportable incidents as soon as the circumstances permit and to investigate and provide to the Regulator, within 14 days, an incident report that describes detailed information related to the incident. A reportable incident is defined in the Regulations and includes any event that results in death, an injury that prevents an employee from working or performing their regular duties on any day after the injury, a fire, an explosion, a collision, any unauthorized or unexpected effect on the environment that is harmful, any damage to archaeological or cultural resources, a significant disruption to authorized work or activities due to unrelated activities or substance introduction, the impairment of a support craft or any equipment or system that is critical to safety, security or environmental protection, an impairment to the reliability of the power system, or the implementation of emergency response procedures.

The operator must also provide periodic summary reports to the Regulator every month during construction and decommissioning and abandonment work or activities of a wind energy project, and annually during the site assessment and operations work or activities of a wind energy project. Periodic summary reports must be submitted annually for all other types of ORE projects.

A final report summarizing the work or activity and a description of the state in which the operations site is being left must be provided to the Regulator within six months following the completion of the work or activity.

Finally, the Regulations require the operator to conserve at their principal place of business in Canada the documentation, information, and data resulting from the authorized activity, and to disclose that information to the Regulator, where requested.

Regulatory development

Consultation

The Regulations were subject to a comprehensive, multi-year engagement process that sought seek feedback from interested parties on the various stages of the regulatory development process. The Offshore Renewable Energy Regulations Initiative web page was developed to ensure stakeholders and the public were kept up to date on the initiative. Since the ORER Initiative was launched, more than 200 parties have been engaged.

Interested parties were invited by email to participate in the initiative’s engagement activities, including renewable energy industry companies/developers, industry associations, Indigenous groups and governments in coastal regions, certifying authorities, interested provinces and territories, regulators, other federal departments with ocean responsibilities, fishing groups, and environmental non-profit organizations.

Phase 1 of the engagement process took place between October 2020 and January 2021 and included an information webinar and a 90-day written comment period on a discussion paper (PDF) that outlined the proposed approach to regulating ORE activities in Canada. NRCan requested feedback on the guiding principles for the development of the Regulations, the various aspects to be addressed in the Regulations, the principal considerations to safety, security, and environmental protection throughout the life cycle of an ORE project, and the project timelines. The feedback received served to inform the next phase of the regulatory development process and was summarized in a summary paper (PDF) that was published on the ORE Initiative web page.

Phase 2 of the engagement process took place between December 2021 and February 2022, and again consisted of an information webinar and a 90-day written comment period on a technical requirements paper (PDF) that detailed the proposed requirements that would form the basis for the draft Regulations. In June 2022, NRCan followed up with a virtual workshop in response to technical questions that were received specific to the requirement for a certificate of fitness. The workshop provided a forum for discussion on the technical requirements related to the proposed role of a certifying authority and the general certification process for ORE facilities.

The input and advice received during these early engagements helped to inform the drafting of the Regulations. In May 2023, a draft version of the Regulations was shared with participants in the earlier phases of the regulatory development process and provided them with an opportunity to demonstrate how the feedback received in earlier engagements had been considered and incorporated into the draft Regulations. Feedback was received from 13 organizations, including two provincial governments (Nova Scotia and Newfoundland and Labrador), one Indigenous group, three offshore regulators (CER and the Offshore Petroleum Boards), two certifying authorities, four industry and/or industry associations, and one environmental non-governmental organization.

Notable feedback included suggestions to streamline the authorization process between life cycle phases of an ORE project and fine-tuning the technical requirements so that they would be more appropriate to the risks associated with ORE activities, which are inherently lower than the risks associated with offshore petroleum activities. In addition, feedback and questions were received related to how Indigenous coastal communities should be considered and communicated with; how results of an impact assessment required under the Impact Assessment Act would be factored into an ORE activity authorization; how impacts to other ocean users would be measured; and whether navigational safety zones would prohibit other ocean users from accessing the area where the ORE project is situated.

As a result of the feedback, the draft Regulations were revised to streamline the requirements related to the authorization process between life cycle phases, in particular, by combining the project construction and operations phases into one application for authorization, with two sets of conditions of authorization that must be met before the respective authorized activity (construction or operations) can commence. This approach was adopted in recognition that the application requirements for the construction and operations phases of a project would largely involve the same information; therefore, requiring that information be submitted in two separate applications would be duplicative. Further, the Regulator would need to know all relevant information about the intended operations and maintenance of a project in order to make a decision on whether to authorize the work related to the construction of the project.

In addition, as a result of the feedback, the requirements related to authorizations for repowering and/or life extension of a project were removed from the proposed Regulations. Given the ORE industry is still at the emerging stage globally and has yet to commence in offshore Canada, the prospect of repowering or needing to extend the life of a project is decades into the future, so the need to prescribe requirements related to that potential phase of a project at this point in the sector’s development is low.

In February 2024, the proposed Regulations, were pre-published in the Canada Gazette, Part I, and were subject to a 30-day public consultation period. Comments were received from two individuals and 11 organizations, comprising three environmental non-profit organizations, two Indigenous groups, two industry associations (renewable energy and shipping), two energy research organizations, one certifying authority and one energy services company. In addition, informal comments were received from contributing regulator partners.

The feedback received was largely supportive of the Regulations and, more broadly, the development of a comprehensive regulatory regime to support the transition to offshore renewable energy in Canada. The feedback included questions, input and suggested revisions to the regulatory text and format to improve the clarity regarding requirements, their applicability and other administrative provisions. Some comments were outside the scope of the Regulations, including feedback that focused on recommended amendments to the CER Act to align with the amendments to the Accord Acts proposed in Bill C-49. All comments received were reviewed in consultation with the CER, as the responsible regulator, with some resulting in modifications to the regulations.

Feedback received during the pre-publication period, along with any resulting changes to the Regulations, is summarized below.

Appropriateness of the Regulations for all types of ORE technologies and all phases of a wind energy project

An energy research organization raised concern that certain requirements, such as those related to the Certificate of Fitness and engagement of a Certifying Authority, may be less appropriate and overly onerous when using ORE technologies such as wave energy conversion for example, that are still in the demonstration stage of development. The organization suggested that the proposed Regulations, and the Regulatory Analysis, appeared to be focused mainly on offshore wind energy and that some of the requirements have the potential to create barriers to project development for ORE projects that use technologies that are deployed at a much smaller scale than offshore wind, and that are lower risk activities which are unlikely to involve significant impacts to safety, security and the environment.

The organization further noted their view that the small business lens analysis in the Regulatory Impact Analysis Statement that accompanied the proposed Regulations in the Canada Gazette, Part I, incorrectly assumed that ORE operators would not be small businesses and emphasized that it appeared that the Regulations were developed primarily with large-scale offshore wind projects in mind. They noted that many wave energy companies operating in Canada would have a staff complement of less than 100.

In addition, a renewable energy industry association commented that the requirements for a Management System, Safety Plan, Environmental Protection Plan and Emergency Response Plan may be overly robust for early activities that are lower risk and that there should be flexibility for some of those activities to not require an authorization.

The CER Act requires all work or activities related to an ORE project, regardless of the phase of the project, the scale and scope of the activity, or at what stage of development the proposed technology is in, to be authorized by the Commission, including any work or activities related to research and/or assessment conducted in relation to the exploitation or potential exploitation of an offshore renewable resource to produce energy. The Regulations cannot deviate from this legislated requirement; however, in consideration of the feedback, it was agreed that the Regulations should not unintentionally create a barrier to, or stifle innovation towards, new renewable energy technologies being used at a smaller, community-based level.

As a result, the Regulations have been modified to create two separate parts that will address the requirements for wind energy projects separately from the requirements of other types of ORE projects. Part 1 – Offshore Renewable Energy – Wind Energy – largely maintains the comprehensive regulatory requirements that were set out in the proposed Regulations that were pre-published in the Canada Gazette, Part I. Part 2 – Offshore Renewable Energy – other than Wind Energy – sets out a more streamlined regulatory framework that is founded on similar core planning requirements for wind energy for which an operator is obligated, those being, the requirement for a Safety Plan, Environmental Protection Plan and Emergency Response Plan; however, Part 2 does not impose requirements related to a Management System, Certifying Authority or Certificate of Fitness, which were considered to be overly onerous for the risk profile of smaller scale ORE projects that use technologies that are still in the demonstration stage of development. Part 3 addresses the regulatory requirements that apply to all types of ORE projects (under both Parts 1 and 2), and include requirements related to the notification and investigation of reportable incidents, record-keeping, and reporting requirements for operators.

The approach in Part 2 of the Regulations was adopted with the recognition that, should a proposed project be more complex in nature, the enabling legislation authorizes the Regulator to require any additional information in the application, and to impose any additional conditions of authorization with respect to approvals, that it considers necessary. This revised approach was positively received by the contributing commentor.

Part 1 continues to require a Management System, Safety Plan, Environmental Protection Plan and Emergency Response Plan for all phases of a wind energy project, given it is expected that the authorization will encompass the full suite of work and activities that an operator proposes to carry out during any given phase, and recognizing the inherent flexibility in the Regulations allowing the information submitted in support of an application and all documents and information submitted to the Regulator as a condition of an authorization to provide a level of detail that is proportionate to the scope, nature and complexity of the proposed work or activities.

It is expected that, over the course of the coming decade, ORE technologies will continue to evolve and those currently at the demonstration stage may move toward the commercial and large-scale development stage in the future, potentially increasing the complexity and risk potential of non-wind energy projects. Given this, and the certainty that there will inevitably be lessons learned once the Regulations are implemented and the industry starts to flourish with new projects under development, the Regulations will be added to NRCan’s Regulatory Stock Review Plan to be reviewed every five years, or sooner, to ensure the requirements continue to be comprehensive and appropriate in the face of continually changing ORE technologies and methodologies. These regular reviews will also provide an opportunity for requirements related to more specific types of ORE technologies to be added in the future, if needed.

Socio-economic assessments and assessments of the effects on rights, interests and concerns of Indigenous peoples

An Indigenous group and an environmental non-profit organization submitted comments on the requirement for the operator to submit, as part of its application for any authorization, an environmental and socio-economic assessment in respect of the proposed work or activities that addresses the factors referred to in paragraphs 298(3)(a) and (c)-(f) of the Actfootnote 1, which are the factors that the Commission must take into account in determining whether to issue an authorization.

Assessments of Indigenous rights, interests and concerns

The Indigenous group raised that the Regulations conflate the consideration of the factors referred to in paragraphs 298(3)(d) and (e), those being, “the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes” and “the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982,” with the consideration of socio-economic factors, which is separately identified in the Act in paragraph 298(3)(c). They noted that the environmental and socio-economic assessment, as contemplated by the proposed Regulations, would be insufficient to properly assess “the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes”; or “the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982,” and recommended that the assessment of the latter be separated out from the environmental and socio-economic assessment. To address this point, the Regulations have been revised to clearly distinguish between the requirement for an assessment that addresses the factors referred to in paragraphs 298(3)(d) and (e) of the Act, and the environmental and socio-economic assessment, which would address the factors referred to paragraphs 298(3)(a), (c) and (f) of the Act.

In addition, the Indigenous group suggested that in carrying out the assessment that addresses the factors referred to in paragraphs 298(3)(d) and (e) of the Act, the Regulations should require that the assessment must — at the election of the Indigenous group at issue — be co-designed and co-executed between the operator and the Indigenous group, with the operator providing reasonable funding to the Indigenous group for its participation in both the co-design and co-execution of the assessment. This recommendation goes beyond the scope of this regulatory proposal.

Both the CER Act and the Impact Assessment Act require processes to be established for the meaningful engagement of the public — and, in particular, the Indigenous peoples of Canada and Indigenous organizations, including the establishment of participant funding programs to facilitate participation in any impact assessment process or regional or strategic assessment processes under Impact Assessment Act, and any public hearings in respect of any matter the Commission considers it appropriate under the CER Act, including any steps leading to those hearings.

Environmental and socio-economic assessments

The environmental non-profit organization emphasized that the fundamental requirements of the environmental and socio-economic assessment process should be set out in law. They acknowledged, however, that the inherent complexity of these assessment processes makes guidance materials, like the CER’s Filing Manual which contains a substantial section on these environmental and socio-economic assessments, useful for communicating details that may otherwise be onerous to describe comprehensively in legislation.

This recommendation goes beyond the scope of this regulatory proposal; however, as the commentor noted, the CER has published extensive guidance in its Filing Manual on how proponents are to carryout environmental and socio-economic assessments, including an Early Engagement Guide that outlines the CER’s expectations for companies during the early engagement phase of a project that is not subject to an Impact Assessment. The CER has considerable experience using these guidance materials to ensure the operator’s assessment is appropriate for the nature and scale of the project, as well as the level of public interest in the project, and that it adequately addresses the predicted effects of the project. In addition, as previously noted, wind energy projects that are 10 turbines or more are designated projects under the Impact Assessment Act and will be subject to an Impact Assessment, and the requirement for an environmental and socio-economic assessment to be submitted as part of the application for authorization will be satisfied by that process. The Impact Assessment Agency of Canada (IAAC) provides extensive guidance and resources to help explain the federal government’s impact assessment process.

Offshore renewable energy in marine protected areas

Multiple parties provided feedback on their views that ORE exploration and exploitation should not be permitted to occur within any Marine Protected Areas (MPA) or areas of interest for future MPAs that are expected to count towards Canada’s marine conservation targets. It was further raised that Navigational Safety Zones should not drive marine traffic away from a project and into these protection and conservation areas. One environmental non-profit organization noted that some jurisdictions either prohibit or strictly limit offshore renewable energy installations in MPAs, outlining examples where offshore wind projects are prohibited within certain types of MPAs and where certain jurisdictions have used marine spatial planning to identify the specific zones in which offshore wind projects may be installed.

Siting for any future ORE development project, including the necessary licensing process for use of the seabed, will be subject to marine spatial planning exercises and significant public and Indigenous engagement, in advance of any application for authorization to conduct work or activities related to a proposed project being submitted. For example, in anticipation of future ORE activities off the coasts of Nova Scotia and Newfoundland and Labrador, two Regional Assessments (RA) have been launched under the Impact Assessment Act to provide information, knowledge, and analysis regarding future offshore wind development activities and their potential effects, to inform and improve future planning, licensing future project-specific federal impact assessments in these areas. Fisheries and Oceans Canada, Parks Canada and Environment and Climate Change Canada have each shared with the RA Committees the pertinent data related to marine protection and conservation objectives in these areas, with the DFO also sharing information related to its ongoing marine spatial planning work.

No revisions were made to the Regulations in response to this feedback; however, the matter will be considered during future land licensing processes.

Protection of wildlife

An individual requested that measures be taken to ensure that wildlife are not harmed while executing activities related to ORE projects. With respect to the Regulations, they raised that the operator’s plans should explicitly address wildlife protection, that projects should avoid wildlife migratory paths and use non-invasive ways to monitor wildlife, and that any injuries or deaths to animals should be reported to a wildlife rescue and rehabilitation organization.

The Act requires the operator to take all reasonable care to ensure the protection of the environment. The Regulations further obligate the operator to use the best available technologies for mitigating adverse effects on the environment that are economically feasible to implement, and to take all reasonable measures to prevent, or if prevention is not possible, to minimize the introduction into the environment anything that is likely to have an adverse impact on the environment. The operator must demonstrate in its application for authorization that the work or activities will be carried out in a manner that protects the environment and must submit an environmental assessment as part of the application. Environmental assessments are carried out to, among other things, evaluate the potential effects of the project on marine ecosystems, including marine life, seabirds, marine mammals and other organisms.

As a condition of any authorization, the operator must submit — for the Regulator’s approval — an Environmental Protection Plan that builds on, and incorporates findings from, the environmental assessment and sets out the procedures, practices and resources that will be put in place to protect the environment and manage environmental hazards, including any hazards that relate to wildlife. In addition to the requirements of these Regulations, the operator will also be subject to the requirements under other federal legislation pertaining to the environment and environmental protection, such as the Fisheries Act, Species at Risk Act and the Migratory Birds Convention Act, 1994 for various authorizations and/or permits. It is expected that the Environmental Protection Plan would address the requirements under other environmental legislation, including any mitigation measures and response procedures that are necessary to protect the environment.

The Regulations also require the operator to report to the Regulator any adverse impact on the environment, beyond those explicitly anticipated in the application for authorization, and to investigate that incident and submit a detailed investigation report to the Regulator within 14 days.

Given the foregoing, it was concluded that the Regulations appropriately address the measures operators must take to protect wildlife and the environment, more broadly, during the course of executing work and activities related to the ORE project.

Streamlining federal approvals

An energy research organization commented that there is limited mention in the Regulations of other federal and provincial agencies, noting their view that this represents a critical gap and a missed opportunity to align regulatory processes to make the approval of ORE projects in Canada more predictable, efficient, and holistic. The organization suggested that the Regulations should seek to streamline the processes and the agencies involved, or at least ensure data needs are transferable, rather than creating a more burdensome approval pathway that does not reflect or account for existing regulatory requirements. They further suggested that, at the very least, an integrated high-level overview or guidance document outlining all the permitting and licensing requirements at the federal and provincial levels would be helpful.

There are several authorizations, permits or approvals that will be required under other federal or provincial legislation. The CER has established numerous agreements with other federal and provincial regulators for the purpose of information sharing and streamlining approval processes. In addition, where a wind energy project is 10 turbines or more, an Impact Assessment will be required which will serve to further streamline the information sharing and approval process under the various applicable federal legislation given that the Commission must, pursuant to 299(b) of the CER Act, make its decision of whether to authorize the work or activity on the basis of the Impact Assessment reportfootnote 2. The Impact Assessment process is designed to support coordinated action among the various jurisdictions that have powers, duties and functions in relation to the assessment of the effects of designated projects.

It is also expected that the Regulator will, consistent with its existing practices, develop or expand existing guidelines and/or filing requirements to accompany these Regulations. These guidelines and/or filing requirements will help in clarifying the process and pathway towards authorization under the CER Act.

Ensuring consistency between these Regulations and future regulations under the amended Accord Acts

An environmental non-profit organization raised that once Bill C-49 receives Royal Assent and the amendments to the Accord Acts are in force, it will be important to ensure that the different legislative frameworks governing ORE in the country is consistent.

These Regulations will form the basis of the future proposed Regulations under the amended Accord Acts, which are expected to be pre-published in the Canada Gazette, Part I, for public comment in early 2025. The intention is for the three sets of ORE regulations to be nearly identical between the three administrative areas, which will promote consistency in application/implementation and reduce any potential confusion for investors to understand the “Canadian regime.”

Certifying authority and certificate of fitness

A certifying authority commented that the Regulations should require that an independent assessment of the decommissioning and abandonment plan be carried out by the approved certifying authority to conduct, given the certificate of fitness is required to be maintained valid for as long as the facilities remain in operation.

Mandatory involvement of a third-party verification agent at the decommissioning and abandonment phase of a project is inconsistent with the regulatory approach taken by other jurisdictions globally. Although the operator may engage a certifying authority or other independent third party at the decommissioning and abandonment phase, making this a regulatory requirement would result in Canada being more costly and less competitive that other jurisdictions by comparison. The review and approval of the decommissioning and abandonment plan, as well as any technical oversight of the execution of decommissioning and abandonment activities required, would be undertaken by the qualified technical staff of the Regulator.

The same organization also suggested that the Regulations should require that the certifying authority is notified of any reportable incidents to allow them to determine the incident’s impact on the Certificate of Fitness; however, many of the types of incidents that must be reported to the Regulator and investigated do not relate to the facilities. As a result, no changes were made to the Regulations. If there are incidents that relate to the facilities, the Certifying Authority would become informed through the operator’s and regulator’s review of the incident.

An environmental non-profit organization suggested that rather than requiring the involvement of a certifying authority for the purpose of third-party verification, that government experts should be employed to review projects to ensure full independence, as they caution the potential for issues with professional competence, bias and conflicts of interest that may arise from a professional reliance regime. They further suggested that, in the absence of this, the Regulations should specify that this approach be subject to review within five years of coming into force.

The role of a certifying authority has been successfully used in Canada’s offshore petroleum regime for nearly 30 years and the reliance on a third-party verification agent at the construction phase of a wind project is used in other jurisdictions globally. The Regulations contain requirements that address any potential conflict of interest, and given the certifying authority reports directly to the Regulator under the Regulations, the possibility of bias is minimized. Notwithstanding, as previously noted, these Regulations will be added to NRCan’s Regulatory Stock Review Plan and will be reviewed every five years, or sooner, to ensure the requirements continue to be comprehensive and appropriate for this new industry.

Technical requirements

Various technical comments were received which resulted in changes to the Regulations.

A certifying authority commented that the Facilities Design Report should include a list of the industry standards and best practices that were used in the design of the facilities, equipment and systems, as well as any data sets that were used in establishing operational and extreme loading conditions, and that it include a description and associated drawings of the project’s major mechanical components. An individual also suggested that the report should include both structural integrity information and, for any floating infrastructure, information on the stability and motion response characteristics. These suggested additions were incorporated into the section on Facilities Design Report.

A renewable energy industry association questioned the appropriateness of the requirement to have a support craft within a 20-minute response time of a facility for ORE activities. The association suggested that the requirement originated from, and is more appropriate for, offshore petroleum drilling and production operations, which are regularly attended installations with a large number of personnel on board. The Regulations were updated to align with requirements that were published in February 2024 for the offshore petroleum regimefootnote 3 and relate to rescue boat availability for vessel-based programs, which is more akin to the type of work involved in ORE projects. With this revision, rescue boats would always be required when there are personnel in the offshore area and the requirement that every vessel used in the authorized work or activities be equipped with a rescue boat was no longer needed as it was redundant, which addressed another comment from the renewable energy industry association that such a requirement was not reasonable for all vessels.

The renewable energy industry association also questioned why the Regulations require fuel storage tanks on any facilities equipped with aircraft landing areas, noting that fuel storage tanks are not a mandatory requirement under the offshore petroleum regime. The regulatory requirements for landing areas have been aligned with the recently published Regulations for the offshore petroleum regime. For clarity, under these Regulations, fuel storage tanks are only required on facilities when those facilities are also equipped with helicopter landing areas.

Navigational safety zones

A shipping industry association conveyed its appreciation that marine transportation and vessel traffic had been taken into consideration in the Regulations and suggested that the section on navigational safety zones be amended to require notification to Transport Canada, in addition to the Canadian Coast Guard and the Canadian Hydrographic Services, of location of facilities, the boundaries of any navigational safety zones, and any risks to navigation. They noted that doing so would ensure alignment across key government agencies and promote timely communication of proposed navigational changes that could affect the shipping industry. The Regulations were amended to include this suggestion.

A renewable energy industry association commented that the requirement for the operator to ensure vessels approaching a navigational safety zone are notified of the safety zone’s boundaries and any hazards related to the facilities within that safety zone, may not be possible for normally unattended facilities. In review, it was determined that the intent of this provision is already achieved by the requirement for the operator to notify the Canadian Coast Guard and the Canadian Hydrographic Services, of location of facilities, the boundaries of any navigational safety zones, and any risks to navigation. These organizations will, in turn, update the Notice to Mariners and nautical charts accordingly, and vessel operators will have access to the necessary information through those notices and charts. Therefore, the requirement was considered redundant and was subsequently deleted.

Equivalencies

Feedback from the renewable energy industry association and an energy research organization raised the need for the Regulations to be flexible enough to allow for the adoption of innovative and new technologies, with the former noting that there should be specific authority for the regulator to accept equivalencies in areas where technology and best practices change.

The Regulations are a combined approach of both performance-based and management-based regulations, which provide the flexibility necessary to support the use of innovations in science, technologies, and methodologies that would increase safety, security, and environmental protection. Furthermore, the addition of the new Part 2 addressing ORE projects, other than wind energy projects, provides an approach for projects that use these newer technologies that may be still in the demonstration stage. This approach will ensure the Regulations have the necessary flexibility to be “right sized” and better matches the regulatory requirements to the risk profile of the expected ORE projects, recognizing the Commission’s authority to impose any additional conditions of authorization with respect to approvals that it considers necessary.

The Act also authorizes the Commission to make orders exempting operators from any or all of the provisions of these Regulations in order to, among other things, ensure the safety and security of persons, the safety and security of facilities or abandoned facilities, and the protection of property and the environment.

Reporting requirements

A regulator partner raised that the requirement for a final report to be submitted within three months following the completion of all authorized work and activities may not be sufficient time for an operator to provide the Regulator with a detailed, comprehensive report and suggested that up to six months may be more appropriate and to avoid rushed reports. The Regulations were revised to allow the operator up to six months to submit its final report.

Forecasted future project activity

An energy research organization suggested that the assumptions made in the Regulatory Analysis on the number of projects expected in the next twenty years is overly conservative. They commented that it is a pessimistic outlook that does not align with expected ORE advances, global projections, or Canada’s legislated climate and electrification policies.

The assumptions made in the regulatory analysis are based on information in the public domain, from both industry and provincial governments, on stated goals and objectives related to a future offshore wind sector. The Regulatory Analysis has been updated to include publicly available information on potential future non-wind ORE applications in coastal British Columbia.

Transparency

An environmental non-profit organization commented that there are several pieces of information and documents required of operators that the Regulations do not require to be disclosed to the public, noting their view that the lack of transparency may serve to impede the goals of the ORE regulatory regime of safety, security, and environmental protection. The organization acknowledged that the CER Act requires decisions, orders, and recommendations to be made publicly available and that the CER’s practice is to make information available related to public hearings/reviews, inspection officer reports and notice of violations. They further acknowledged that some information should not be made publicly available, as it could compromise safe operations and/or security at the facilities.

The CER has multiple online regulatory databases that contain extensive information related to projects at all stages, from initial application and hearings information and correspondence to ongoing activities and transactions conducted at the CER, to compliance and enforcement correspondence. In addition, the CER also makes biophysical, socio-economic, and regional data and information on projects available online. As the commentor pointed out, some safety and security sensitive information should not be made publicly available; however, beyond that type of information, it is the CER’s practice to make all other information publicly available.

Modern treaty obligations and Indigenous engagement and consultation

In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an analysis was undertaken to determine whether these Regulations are likely to give rise to modern treaty obligations. The assessment examined the geographic scope and subject matter of these Regulations in relation to modern treaties in effect and concluded that implementation of these Regulations is unlikely to impact the rights, interests, or self-government provisions of treaty partners.

All people in Canada would benefit from ensuring that ORE projects are carried out in a manner that ensures environmental protection and the safety and security of persons and property. The CER Act requires the Commission to consider, in determining whether to issue an authorization, any Indigenous knowledge that has been provided to the Commission, as well as the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes, and any effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

Instrument choice

Regulations are needed to operationalize Part 5 of the CER Act. The Regulations would ensure that consistent rules, with compliance and enforcement mechanisms, related to safety, security, and environmental protection are applied to all ORE projects and would provide the necessary clarity and certainty for the nascent ORE industry to develop in Canada. No non-regulatory options were considered.

Regulatory analysis

Benefits and costs

The Regulations establish the framework for ORE projects to be carried out in a manner that protects safety, security, and the environment, which could contribute to federal and provincial renewable energy targets. The benefits arising from this industry cannot be solely attributed to the Regulations, but rather, are associated with the complete legislative regime for ORE under the CER Act.

Future operators of all types of ORE projects would assume incremental costs associated with the Regulations, as compared to what may be carried under the baseline scenario (no regulations), including labour costs related to the time spent on respecting mandatory reporting and inspection requirements. Operators of wind energy projects would also incur labour costs related to the involvement of a certifying authority during the operations phase of the project. The incremental costs are expected to average less than $1 million yearly. The benefits and costs are considered qualitatively in this analysis.

Analytical framework

Under the Policy on Cost-Benefit Analysis, a cost-benefit analysis must consider the incremental impacts of the Regulations, as measured by the difference between the baseline scenario and the scenario in which the Regulations are implemented, over the same period. The baseline scenario considers what is likely to happen in the future if the Government of Canada did not implement the Regulations, and it considers the changes that are likely to happen under normal circumstances without the Regulations in place. Any incremental benefits and costs related to the introduction of the Regulations (the “regulatory scenario”) are then assessed by comparing them against the baseline scenario.

In this analysis, the baseline scenario is one in which the legislative framework exists under Part 5 of the CER Act, which gives the Commission the authority to authorize work and activities related to ORE projects and powerlines, and to establish conditions on those authorizations that must be satisfied by an operator. It is expected that in the baseline scenario, the Regulator would exercise its authority under the Act to establish minimum requirements through conditions of authorization related to safety, security, and environmental protection at all stages of the development of an ORE project — regardless of the type of ORE project (wind energy or non-wind energy). In addition, based on feedback from renewable energy industry companies/developers and industry associations during early engagement, as well as feedback from regulators in other jurisdictions, it is expected that in the baseline scenario, operators will follow industry standards and best practices in the development of a project. For example, operators of wind energy projects typically utilize the services of a third-party certification company for insurance purposes, to verify that the project facilities have been fabricated, constructed, and installed in a manner that ensures the safety, integrity, and reliability of the project.

The Regulations do not prescribe any specific technology or methodology that must be used by an operator of a project; rather, they establish requirements related to the planning, management, and execution of proposed work or activities that an operator must satisfy prior to commencing any authorized work. It is expected that an operator, particularly those proposing larger projects that would use more complex technologies, would voluntarily establish many of these plans and programs, as they would be consistent with best management practices for companies working in the offshore renewable energy industry. Notwithstanding, it is expected that for all types of ORE projects, the Commission would require, through conditions on those authorizations, that an operator implement these appropriately scoped planning requirements, such as the Safety Plan, Environmental Protection Plan and Emergency Response Plan, even for smaller-scale projects that propose to use less complex technologies.

In response to a concern raised by a stakeholder during the CGI comment period that some of the requirements set out in the proposed Regulations were less appropriate and overly onerous for ORE projects that propose to use less complex technologies that are deployed at a much smaller scale than offshore wind, the Regulations were revised and modified to create two separate parts that will address the requirements for wind energy projects (Part 1) separately from the requirements of other types of ORE projects (Part 2). Requirements set out in Part 2 are similar to in Part 1, but adjusted to reflect the fact that these types of ORE projects are expected to be smaller in scale and less complex in nature. Part 2 does not require a Management System, Certifying Authority or Certificate of Fitness, which were considered to be overly onerous for the risk profile of smaller scale ORE projects that use technologies that are still in the demonstration stage of development. For ORE projects, in particular, more complex projects such as those using wind energy, the duration of each phase of the life cycle (site assessment, construction and operations, decommissioning and abandonment) and the interval between each phase will vary depending on the project, operator, and the time required to obtain all the necessary authorizations under the Regulations and any other applicable federal legislation. The potential impacts of the Regulations will not be immediately discernable; therefore, the analysis considers a 20-year time frame to identify any incremental impacts that may arise from the Regulations.

Based on the interest expressed by the offshore wind development industry in the early engagement stages, it is anticipated that the majority of wind energy projects will be carried out in the Canada–Nova Scotia and Canada–Newfoundland and Labrador offshore areas. The Canada–Nova Scotia offshore area will likely see the earliest activity, a conclusion drawn following the Government of Nova Scotia’s announcement of its Offshore Wind Roadmap (PDF) and intent to offer leases for five gigawatts of offshore wind energy by 2030. This move could lead to the development of four commercial-scale wind projects within the analysis period. Although the Government of Newfoundland and Labrador has focused its early wind energy efforts on onshore land leases in support of a wind-to-hydrogen industry, it is expected that there would be at least two commercial-scale projects in the Canada–Newfoundland and Labrador offshore area during the period of analysis, given the prevailing wind speeds off the coast of that province and its potential for wind development. Finally, it is expected that British Columbia may have one smaller-scale wind energy project, and one or more smaller scale non-wind energy projects during the period of analysis. Each project would have one operator, resulting in an expected seven operators or affected businesses in the next 20 years.

Benefits of the Regulations
Benefits to governments and the public

The Regulations will provide transparency and certainty for Canadians, the industry, and other stakeholders with respect to the requirements and obligations to operate and maintain an ORE project. The Regulations combine elements of outcome-based and management-based regulatory design to promote the continual advancement of safety, security, and environmental protection outcomes, while providing the necessary flexibility for the Regulations to evolve over time with the continual change in best available technologies and methodologies.

Benefits for industry

The Regulations require operators of all types of ORE projects to identify, manage, and mitigate risks to safety, security and the environment. Operators are obligated to follow safety, security, reliability, and environmental protection standards and, in the case of wind energy projects, seek third-party verification to confirm that the wind energy project facilities are constructed and installed correctly and are fit for purpose. Operators of wind energy projects are also required to maintain these standards throughout the duration of operations. The Regulations clarify the application and authorization process to allow all types of ORE projects to move forward, paving the way for the successful development of new ORE projects and the emergence of a new industry.

Costs of the Regulations
Compliance costs to industry

In the baseline scenario, it is expected that operators of all types of ORE projects will conform with industry standards, adopt best practices and, in the case of operators of wind energy projects, will employ the services of a third-party certification company without being required to do so by regulations. Costs associated with these activities are not considered incremental to these Regulations.

Since the CER Act authorizes the Regulator to establish minimum requirements through conditions of authorization related to safety, security, and environmental protection, costs attributable to the Regulations stem only from the mandatory reporting and inspection requirements for all types of ORE projects. As noted in the “Description” section, these requirements include notifying the Regulator of reportable incidents, investigating the incidents, and providing the final investigation report to the Regulator. They also include the provision of periodic summary reports to the Regulator. This cost would take the form of wages paid to personnel for the hours of work associated with the mandatory reporting and inspections. For example, under the scenario outlined above, it is estimated that there would be an average of eight incidents reported each year once all projects are operational, with each report requiring 40 hours to complete.

The operators of wind energy projects would also bear incremental costs with respect to the certifying authority’s involvement in the project’s operations life cycle phase. In the baseline scenario, it is assumed that the operator would engage the services of a certifying authority during construction of the wind energy project to satisfy insurance requirements; however, it is unlikely that the operator would continue to utilize the services of the certifying authority during regular operations without a regulatory requirement to do so. Therefore, the costs associated with the certifying authority in the operations phase of a wind energy project, which include those associated with periodic monitoring and inspection of facilities, equipment and systems to verify their continued integrity, are incremental costs and would also take the form of wages paid to personnel for the hours of work associated with the mandatory inspections and reporting by the certifying authority, which would be billed back to the operator.

These costs would be carried as projects develop and advance in their life cycle. Total costs would depend on the number and size of projects under development during the analysis period.

Small business lens

An analysis under the small business lens concluded that the Regulations would affect a minimal number of Canadian small businesses should they apply to become operators of smaller scale, non-wind ORE projects, while wind energy operators are not expected to meet the definition of “small business.”

The Regulations have been revised from those proposed in the Canada Gazette, Part I, to address the concern that some elements contemplated in those proposed Regulations, such as Management System, Certifying Authority and Certificate of Fitness, would be overly onerous and costly for the risk profile of projects that utilize smaller scale ORE technologies, such as wave energy conversion, that are still in the demonstration stage of development and which may be operated by small businesses. The Regulations now provide an approach for those projects utilizing non-wind technologies that is reflective of the fact that these types of projects are expected to be smaller in scale and less complex in nature. The revisions, which no longer require a Management System, Certifying Authority and Certificate of Fitness for non-wind projects, are expected to help in reducing any potential or perceived barrier to, or stifle innovation towards, new renewable energy technologies from being used at a smaller, community-based level.

The Regulations also implement a blend of management-based and outcome-based requirements and do not impose prescriptive technical requirements that must be adopted. This blended approach provides the necessary flexibility to allow for innovation and cost reductions for all types of ORE projects, without diminishing safety and environmental protection.

One-for-one rule

The one-for-one rule applies, since there is an incremental increase in the administrative burden on business, and the Regulations are considered burden in under the rule. The Regulations impose administrative costs that arise from the requirements to conserve records that are submitted to the Regulator in support of the application or authorization, the results of surveys conducted, and documents that demonstrate that the work or activities were carried out in the manner proposed by the operator and in compliance with the Regulations.

Given this is an industry with no existing activities in Canada and that it takes time for an operator to obtain all necessary land licences and authorizations under the Regulations and any other applicable federal legislation, it is expected that the administrative burden associated with the Regulations will not be incurred until two years after the Regulations enter into force and that they will be limited to those records arising within the first decade following the Regulations coming into force, related to the site assessment and construction phases of two wind projects, and the site assessment and deployment activities related to one wave energy conversion project.

The individual responsible for conserving records will likely vary, depending on the nature of the record. However, the 2022 average hourly wage for the National Occupational Classification (NOC) of professional occupations in natural and applied sciences of $46.63 is used as a proxy to estimate the hourly cost. It is estimated that the average time required to conserve a record to be 5 (five) minutes.

The Regulations result in an additional annualized cost of $1,281 (2012 Can$footnote 4) of administrative burden as estimated using the Red Tape Reduction Regulations’ prescribed method. A new regulatory title (title in) is introduced.

Regulatory cooperation and alignment

The Regulations are not related to an international agreement or obligation, nor do they have any impacts related to a work plan or commitment under a formal regulatory cooperation forum.

The Regulations were, however, inspired in part by the regulatory framework in the United States for the operational safety and environmental protection of ORE projects in U.S. coastal waters. In addition, select elements of Canada’s existing regime for offshore petroleum activities were also adopted, where appropriate, to allow for consistency between the offshore regimes while ensuring that the requirements for ORE were not unnecessarily burdensome, given the risk profile for ORE is much lower than that of petroleum.

It is NRCan’s intent to replicate, to the extent possible, the Regulations in the Canada–Nova Scotia and Canada–Newfoundland and Labrador offshore areas. The governments of Nova Scotia and Newfoundland and Labrador have been consulted throughout the regulatory development process and have provided input into the Regulations.

Effects on the environment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted for the Regulations and concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) assessment was conducted as part of the development of the Regulations and no GBA+ impacts have been identified. The Regulations establish requirements that operators must meet in carrying out work and activities related to ORE projects to ensure environmental protection and the safety and security of persons and property. The Regulations are not expected to result in differential impacts on GBA+ categories of stakeholders as the ORE sector develops, nor to the public at large.

Implementation

The Regulations come into force on the day they are registered. It is anticipated that the CER may develop guidance materials to assist interested parties and future operators in the interpretation of these Regulations, where the CER has determined that additional guidance could be helpful. Consistent with its regular practice, the CER will update its website to provide information about these Regulations and would work to address any questions that interested parties and future operators have with respect to the interpretation and compliance of the Regulations.

Compliance and enforcement

Compliance and enforcement activities will follow established CER approaches and procedures to monitor compliance under, and enforce, the CER Act and the regulations made thereunder. Part 2 of the Act sets out the powers of inspection officers to administer and enforce the Act and the Regulations, for the purpose of ensuring the safety and security of persons and facilities, as well as the protection of property and the environment.

The Regulator may become aware of non-compliance through regular inspections, condition reviews, meetings, audits, and incidents and near misses to be reported to the CER under the Regulations through immediate or periodic reporting requirements. The CER has a variety of compliance and enforcement tools, such as notices of non-compliance, inspection officer orders, warning letters, Commission orders or letters of direction, suspension of operations, administrative monetary penalties and prosecution. More than a single tool may be employed to obtain or promote compliance, deter future non-compliance or to prevent harm.

An inspection officer who has reasonable grounds to believe that a requirement of the CER Act or its regulations is being, or has been, contravened may order a person to stop the contravention. They may also order a person to stop doing something that may cause a hazard to the safety or security of persons or cause damage to property or the environment, and to take any measure that is necessary to prevent or mitigate those hazards, or to ensure compliance and/or mitigate the effects of non-compliance with the Act and its regulations.

Failure to comply with an order from the Commission or an inspection officer is a prosecutable offence under the Act, and penalties include, on summary conviction, a fine up to $100,000, imprisonment for a maximum term of one year, or both; and, on conviction of an indictment, a fine up to $1 million, or imprisonment for a maximum term of five years, or both. The CER Act also provides the CER with the authority necessary to establish, with the approval of the Governor in Council, regulations related to the designation of violations that are subject to administrative monetary penalties, as well as the determination of the amount payable as the penalty.

Contact

Kim Phillips
Senior Regulatory Officer
Renewable and Electrical Energy Division
Department of Natural Resources
Telephone: 902‑402‑0285
Email: nrcan.offshorerenewables-renouvelablesextracotieres.rncan@canada.ca