Analysis and Response: 1. …

Analysis and Response:

1. Defining Core Mandatory Programs:

The Ministry proposes to define the core mandatory programs and services provided by conservation authorities to be,
• natural hazard protection and management
• conservation and management of conservation authority lands
• drinking water source protection (as prescribed under the Clean Water Act) and
• protection of the Lake Simcoe watershed (as prescribed under the Lake Simcoe Protection Act) (where applicable)

Analysis:
The Ministry has indicated that the four core mandatory programs are to be defined further through regulation that would establish standards and requirements for each. It is assumed that conservation authorities would then have legislative authority to levy member municipalities for these core mandatory programs and services. Municipal funding for nonmandatory conservation authority programs and services would be at the municipality’s discretion and would require a memorandum of understanding or other type of agreement between the municipality and the conservation authority.

The proposed core program areas have been key components of conservation authority programming and are supported by CLOCA as detailed by the following:
• Natural hazard protection and management: Conservation authorities undertake essential watershed-based programs to protect people and property from flooding and other natural hazards, and CLOCA supports hazard management as a
provincially mandated program. CLOCA’s natural hazard protection and management program involves undertaking floodplain mapping, modeling, and monitoring streamflow, rainfall and snow cover, flood forecasting and flood warning, regulating development in flood prone areas, providing planning support and advice to municipalities to minimize flood impacts, acquiring important floodplain lands and undertaking general watershed management actions such as tree planting, and restoring natural areas that improve the landscape and make the watershed more resilient to the flooding events and climate change. Currently only approximately 1% of the delivery of this program area is funded by the province. The remaining is funded through municipal levy and self-generated fees.

o Conservation and management of conservation authority lands: CLOCA supports the management of conservation authority land being identified as a core mandate. CLOCA owns over 2700 hectares of land across its jurisdiction. Conservation lands have been acquired, protected, and restored in an effort to support the protection, management, and restoration of the watershed’s important natural resources, while providing for compatible recreational and educational uses. Conservation authorities carry out various land management activities which protect, enhance and restore the natural lands and make these areas safe enjoyable for the general public.

With population growth in the watershed, there is additional pressure on these lands. User conflicts arise, and resources are required to prepare and implement management plans for these lands. This program area is currently funded primarily through self-generated revenue and municipal levy.

• Drinking water source protection: As part of the CTC Source Protection Region, CLOCA completed a source protection plan for the watershed that sets out policies, which when implemented, are to protect existing and future municipal drinking water sources. The plans were created on the principles that protecting municipal water supplies needs to be done on a watershed basis, an area of land where all surface water drains into the same lake or river. Groundwater and surface water systems are linked and activities upstream can affect water downstream, regardless of political boundaries.

The identified core program area of drinking water source protection is proposed to be limited to “prescribed” provisions under the Clean Water Act. Prescribed provisions under the Act, would be too limiting to enable required supporting watershed management activities. For example the prescribed provisions would not allow for updates to the watershed characterization reports nor allow for monitoring of watershed conditions – two critically important background components to protecting drinking water.
Cont’d
Conservation authorities are well positioned to deliver source water protection as there are already legislative requirements for conservation authorities. This program area is currently funded by the province. For the fiscal year 2019-2020, the province will fund CLOCA approximately $40,000. Details of future funding implications are unknown at this time. However, Bill 108 species that “an authority may, from time to time and in accordance with the regulations, determine the amounts owed by any of its specified municipalities in connection with the programs and services the authority provides in respect of the Clean Water Act, 2006”. Municipalities would have the ability to apply to the Mining and Lands Commissioner, or to such other body as may be prescribed by regulation, for a review of the amounts owing. It is unclear if the program and services that CLOCA currently provide under the Clean Water Act would remain the same or be reduced/expanded. There is a concern that responsibility for funding the drinking water source protection program is proposed to be transferred to municipalities. Provincial funding of the program provided an equitable approach across the province, such that all local programs and studies of municipal water systems were funded according to their complexity and needs. It is important that the province involve conservation authorities and municipalities in how source water protection is to be carried out under this new legislative framework.

• Protection of the Lake Simcoe watershed (as prescribed under the Lake Simcoe Protection Act) does not impact CLOCA.

Watershed Management - A Core Mandate and Fundamental Element of the Core Program Areas
Watershed management has been the foundation for all of conservation authority programs and services since the inception of conservation authorities. The CA Act should include a specific core mandate to undertake watershed management to protect and restore the ecological health of watersheds and further the implementing regulations for the natural hazard management, conservation area management and drinking water source protection should recognize watershed management as a key component to their delivery.

Watershed management provides the necessary understanding and knowledge of watershed natural resources to effectively make informed decisions and carry out natural hazard protection and management, conservation and management of conservation authority lands and source water protection. Watershed management involves examining the environment and human activities within a watershed area and assesses the relationships between these activities to determine how the natural hazards, conservation areas and water resources of the watershed should be managed to ensure the health and safety of people and the protection of property, that conservation lands retain and enhance their ecological integrity and source water is protected.

By applying a holistic approach to water management, a range of factors are taken into consideration such as water quality/quantity, significant water features, precipitation, climate water balance, water budgets and the hydraulic cycle. This work provides the foundation upon which natural hazards (flood and erosion) can be evaluated.

Conservation areas often include a watershed’s most ecologically sensitive and robust areas. These areas support flood resiliency, filter air and water contaminants, and protect drinking water resources. Watershed management provides the necessary understanding of the overall health of the watershed and subsequently guides conservation and management actions needed to ensure the health of conservation areas.

The scientific work, modelling and data collection that is conducted through watershed management supports the science of source water protection. The water balances, water budgets, continued monitoring of water quality and water quantity as well as the modelling of surface water, groundwater and climate factors all provide the data and detail necessary to identify threats, risks and opportunities with respect to our drinking water resources. This information, consolidated with land use information, climate modelling and watershed stressors can identify potential future risks and threats to our drinking water resources.

Essential elements of watershed management include monitoring and gathering scientific watershed natural heritage and water resource data, identification of threats, formulation of watershed environmental management plans, implementation of the management plans through watershed land use planning, regulatory authority, restoration/stewardship activities, and
education and awareness. Cont’d Of critical importance will be the development of standards and requirements for each of the core mandatory program areas and what constitutes eligible activities within each of the mandated areas. Accordingly, if watershed management is not identified as a core program area, it should be identified in the implementation regulation as a key component required to carry out the core program areas. The Ministry should consult with conservation authorities and other stakeholders on the development of the regulations outlining the requirements for these core program areas. In order to provide early feedback, attachment 1 provides staff recommended eligible activities for the proposed identified core program areas, including critical components of watershed management.

2. Increased Transparency

The Ministry proposes to increase transparency in how conservation authorities levy municipalities for mandatory and nonmandatory programs and services and ensuring that municipalities and conservation authorities review levies for non-core programs after a certain period of time (e.g., 4 to 8 years). It is also proposed that a transition period be established (e.g. 18 to 24 months) and process for conservation authorities and municipalities to enter into agreements for the delivery of nonmandatory programs and services and meet these transparency standards

Analysis:
It is understood that increased transparency would be accomplished through service agreements with municipalities that clearly define non-mandatory programs and services that will be provided by the conservation authority with municipal funding. It is also understood that conservation authorities will be able to levy the municipalities for core mandatory programs and services that they are expected to deliver for the Province, and that non-mandatory programs and services will need individual CA/municipal agreements for funding support in order for the CA to levy for the amount necessary to support the program expenses. Non-mandatory program and service areas could include activities such as natural heritage plan review, coastal wetland monitoring, and educational/community engagement activities not related to the identified core areas. Increased transparency in how conservation authorities levy municipalities for mandatory and non-mandatory programs and services is supported. CLOCA already collaborates with our member municipalities through a transparent budget process on the delivery of programs and services to our community.

Given that Durham Region and many other municipalities will have to work with multiple conservation authorities having jurisdiction in their municipality, a transition period for the execution of agreements will take some time not only for staff but also to have the agreements endorsed by Councils and Boards. As a result, a transition period for agreements should be a minimum of 24 months.

3. Minister Ability to Appoint an Investigator

The Ministry proposes to enable the appointment an investigator to investigate or undertake an audit and report on a conservation authority. Bill 108 specifies that an investigator may,
(a) inquire into any or all of the authority’s affairs, financial and otherwise;
(b) require the production of any records that may relate to the authority’s affairs;
(c) inspect, examine, audit and copy anything required to be produced under clause (b);
(d) conduct a financial audit of the authority’s operations, including its programs and services; and
(e) require any member of the authority and any other person to appear before the investigator and give evidence on oath about the authority’s affairs.
(5) On completion of an investigation, an investigator shall report in writing to the Minister, who shall promptly transmit a copy of the report to the authority.
(6) The Minister may require the authority to pay all or part of the cost of an investigation.

Cont’d
Analysis:
The basis for this proposal was likely the 2018 Auditor General of Ontario Report on the Niagara Region Conservation Authority that made a number of recommendations to the province including “To ensure that issues that are beyond conservation authorities’ ability to manage themselves are dealt with appropriately and in a timely manner, the Ministry of the Environment, Conservation and Parks work with municipalities to:
• determine the circumstances when Ministry and/or municipality intervention is warranted;
• establish mechanisms for the Ministry and/or municipalities to intervene when necessary in conservation authorities’ operations; and
• formalize such mechanisms through a memorandum of understanding between the Ministry, municipalities and conservation authorities that clearly establishes the roles and responsibilities of each party and when intervention is necessary”

The items subject to investigation outlined in Bill 108 above appear to be information that CLOCA currently makes available to the public through our website. As a result, the ability to appoint an investigator is supported. However, there needs to be more certainty of how an investigation is determined to be warranted. Unjustified investigations at the cost of an authority is a concern. Clear rules of engagement that ensures there is a justifiable need for an investigation will be important.

4. Clarifying Duty of Board Members

The Ministry proposes to clarify that the duty of conservation authority board member is to act in the best interest of the conservation authority, similar to not-for profit organizations. Bill 108 includes an amendment to the CA Act which would add the following “Every member of an authority shall act honestly and in good faith with a view to furthering the objects of the authority”.

Analysis:
The basis for this proposal also likely came from the 2018 Auditor General of Ontario Report on the Niagara Region Conservation Authority that recommended to the province “To ensure effective oversight of conservation authorities’ activities through boards of directors, we recommend that the Ministry of the Environment, Conservation and Parks clarify board members’ accountability to the conservation authority.”

Leading governance practices suggest that board members who are appointed as representatives of a stakeholder group should be vigilant in ensuring that representing their stakeholder group does not conflict with acting in the best interest of the organization they are overseeing. However, under Section 2(3) of the CA Act, “board members have the authority to vote and generally act on behalf of their respective municipalities.”

Clarifying the duty of conservation authority board members to act in the best interest of the conservation authority is supported.

5. Proclaiming Provisions of the CA Act

The Ministry is also proposing to proclaim un-proclaimed provisions of the CA Act related to:
• fees for programs and services o would allow the Minister to determine classes of programs and services in respect of which an authority may charge a fee and set out requirements for an authority approved fee policy
• transparency and accountability o would allow the Minister to: require an authority to disclose and publish information regarding authority programs, services and operations and require CAs to make available to public MOU with municipalities
o governing conservation authority advisory board, e.g., require conservation authority establish advisory board (e.g., in response to a local issue), prescribe composition, functions, powers, duties, activities and procedures
o governing composition of conservation authority boards and prescribe requirement re: appointment and qualifications of members
Cont’d

• approval of projects with provincial grants o Would clarify that before proceeding with a project that involved money granted by the Minister that the authority shall file plans and a description and obtain approval from the Minister in writing.
• recovery of capital costs and operating expenses from municipalities (municipal levies) o Clarifies the process for how CAs can levy municipalities for expenses
• enforcement and offences o enhancing enforcement provision such as stop work orders and increased fines • additional regulations.
o Would allow the Minister to introduce new regulations

Analysis:
The proclamation of these provisions is supported as they will allow for clarity and consistency in fees charged, increase conservation authority transparency and accountability, clarify permitting actions, and increase enforcement ability. However, it is recommended that the determination of classes of programs and services of which an authority may charge a fee be informed by discussions between the province, conservation authorities and municipalities.

RECOMMENDATIONS:

THAT the Analysis Commentary in Staff Report #5642-19 be endorsed and submitted to the Province of Ontario and
Conservation Ontario as CLOCA’s comments regarding Environmental Registry Posting 013-5018;
THAT the Minister of Environment, Conservation and Parks be requested to share any proposed regulations in draft form with CLOCA for meaningful consultation prior to enactment; and,
THAT Staff Report #5642-19 be circulated Watershed Municipalities, Members of Provincial Parliament, Members of Parliament and adjacent Conservation Authorities for their information.