Comments Regarding Focusing…

Comments Regarding Focusing Conservation Authority Development Permits on the Protection of People and Property submitted to Environmental Registry of Ontario

Submitted by the Upper Thames River Conservation Authority
May 21, 2019

The Ministry proposed changes and Upper Thames River Conservation Authority (UTRCA) responses are included below:

PROPOSED CHANGE 1 - Consolidate and Harmonize Existing CA Regulations
The Minister is proposing to consolidate and harmonize the existing 36 individual conservation authority approved regulations into one Minister of Natural Resources and Forestry approved regulation to ensure consistency in requirements while still allowing for local flexibility.

UTRCA response:
UTRCA is supportive of the proposal to consolidate and harmonize the existing 36 individual conservation authority regulations into one Minister of Natural Resources and Forestry approved regulation. The updated regulation should include schedules which outline the appropriate regulatory storm for all 36 watersheds. In the UTRCA watershed the regulatory storm is based on the 1937 Flood event.

To assist in improved coordination and consistency with managing development in areas containing natural hazards, it would be beneficial for the province to modernize and update guidelines provided by the province – in particular the technical guidelines published in 2002. These regulations and guidance documents need to give CAs the tools to incorporate climate change into our future proofing of communities.

In addition, UTRCA strongly supports utilizing S. 28 as one tool to address adapting to a changing climate. As part of the update to the S. 28 regulation, it is recommended that the Province include specific elements to address extreme weather events, including:
• Updating the technical guidelines to provide provincial direction on how to include climate change considerations. These guidelines should support CA decision-making for both planning and permitting functions;
• Standards and requirements to mitigate the impacts of climate change and provide for adaptation to a changing climate, including through increasing resiliency;
• Ensuring that the definition of “conservation of land” ties to the CA role in mitigating and adapting to climate change impacts.

PROPOSED CHANGE 2 – Update Definitions
The Minister is proposing to update definitions for key regulatory terms to better align with other provincial policy, including: wetland, watercourse and pollution.

UTRCA response:
UTRCA supports this proposal. Conservation Authorities through Conservation Ontario have encouraged the province to define these terms in relation to natural hazards to provide clarity and minimize variation across the province. In order to achieve a consistent interpretation of these terms it would be helpful to replace with existing definitions (e.g. wetlands as defined in the Provincial Policy Statement) as well as provide and/or update existing support materials (e.g. fact sheets or implementation guidelines). Working with existing definitions and guidance materials rather than creating new definitions will allow a more rapid incorporation into review and permitting processes. UTRCA will have additional more detailed comments upon receipt of draft definition(s).

It is noted that the legislation currently empowers MNRF to create definitions for “development activity” and “hazardous land”. It is recommended that the Province take the opportunity to update those definitions as well.

PROPOSED CHANGE 3 – Define Undefined Terms
The Minister is proposing to define undefined terms including interferences, conservation of land.

UTRCA response:
UTRCA supports the proposal to define key undefined terms to address not only the role CAs have in protecting life and property from natural hazards, but also in conserving natural resources to support natural hazard management and to ensure resilience on the landscape to mitigate the effects of climate change. It is recommended the definitions of Interference and Conservation of Land be consistent with the previous 1994 Mining and Lands Commission decision as well as existing guidance from Conservation Ontario – prepared in consultation with provincial staff (Guidelines to Support Conservation Authority Administration of the Development, Interference with Wetlands and Alterations to Shorelines and Watercourses Regulation, Conservation Ontario, 2008).

PROPOSED CHANGE 4 – Reduce Regulatory Restrictions
The Minister is proposing to reduce regulatory restrictions between 30m and 120m of a wetland and where a hydrological connection has been severed.

UTRCA response:
The UTRCA supports the reduction of regulatory restrictions between 30m and 120m from a wetland where;
• It has been demonstrated a reduction in the regulated area is warranted through a technical report;
• A constructed barrier or divide (e.g. linear infrastructure) exists between the wetland and proposed development with no wetland attributes on the ‘development’ side (i.e. hydrologically disconnected or severed); or
• The proposed development activity presents a ‘low-risk’ to impacting the hydrologic function of the wetland or public safety. Development that may present a higher risk to the wetland and its functions should maintain their regulatory restrictions.
UTRCA’s current permitting policies allow many low risk activities to be exempt from obtaining a permit, instead letters of clearance may be issued. Section 4.2.4B of the Environmental Planning Policy Manual (UTRCA, 2006) outlines the policy:
B. BETWEEN 30 & 120 METRES – LETTER OF CLEARANCE
The following uses may be permitted and will only require a letter of clearance, if
proposed within 30 to 120 metres from the limit of a Provincially Significant Wetland or a wetland greater than or equal to 2 hectares in size:
i) Single family residential dwelling
ii) Swimming pools, decks, non-habitable accessory structures
iii) Minor additions to existing residential and agricultural buildings/structures
iv) Residential septic systems

It’s important to note that there are activities that should not be considered low risk activities such as large scale excess soil/fill placement and grading activities, major infrastructure (e.g. roads, servicing or utility corridor). In addition, clarity will be required on the condition “where a hydrological connection has been severed”.

UTRCA currently applies this practice for areas where there is a road or significant infrastructure within 120m of a wetland once it has been confirmed that a hydrological connection has been severed. It would be beneficial to have this practice enabled in the Regulation and future policy guidance provided to outline criteria for its use.

PROPOSED CHANGE 5 – Exempt Low Risk Activities Drainage Act
The Minister is proposing to exempt low risk development activities from requiring a permit including certain alterations and repairs to existing municipal drains subject to the Drainage Act provided they are undertaken in accordance with the Drainage Act and Conservation Authorities Act protocol.

UTRCA response:
The UTRCA supports the inclusion of this provision to enable the explicit exemption of some low risk activities. In some regulated areas, there are low risk activities that currently require a permit that could be considered for exemption. UTRCA policies currently include activities of this nature that occur outside of a wetland or some hazard areas such as minor landscaping or grading, replacement of service connections, small non-habitable accessory structures e.g. shed. The proposed exemption and other initiatives outlined in this proposal will result in less costly approvals and will also allow conservation authority staff to focus on more complex applications and provide faster approvals. UTRCA would be pleased to work with MNRF and other stakeholders to review activities that may be included for exemption.

UTRCA is also supportive of the proposal to exempt some low-risk development activities from requiring a permit, including certain alterations and repairs to municipal drains subject to the Drainage Act provided they are undertaken in accordance with the Drainage Act and Conservation Authorities Act (DART) Protocol. It is recognized that this proposed exemption would require an update to the DART protocol and it is recommended that the DART be re-convened for this purpose. When considering exemptions, the Province should contemplate the full range of tools embedded in the new S. 28 Regulation, including opportunities for permit-by-rule, adopting a document by reference and registration. For example, as drainage works have the potential to impact flood control, it is essential that CAs be notified of the proposed work in advance.

PROPOSED CHANGE 6 – Allow CAs to Exempt Low Risk Development Activities
The Minister is proposing to allow conservation authorities to further exempt low risk development activities from requiring a permit provided in accordance with conservation authority policies.

UTRCA response:
UTRCA supports this initiative to include a provision in the regulations to allow individual conservation authorities to exempt low risk activities from permitting where there is current technical information and mapping. Currently, it is unclear if the proposed regulation is to outright exempt specific low risk activities (i.e. provide a list of activities exempt from requiring a permit) or to implement a ‘permit-by-rule’ system. Permit by rule is used in other provincial legislation where the applicant agrees to a specific set of rules before they start a specific regulated activity in a defined area. The applicant may be required to register their activity with the UTRCA and inspections may be required.

The MNRF should consider the requirements that will need to be in place for the implementation of this provision such as regulation maps that are current and a regular maintenance process is in place. Provincial investment in updating components of the natural hazard maps may be necessary (e.g. floodplain, erosion and wetland mapping). Current and reliable maps are a key part of the successful implementation of this option so the public can use the conservation authority regulation maps to identify where an exemption may or may not be applicable and avoid enforcement issues. UTRCA regulation policies would need to be updated and approved by the Board of Directors in order to be clear on the type of activities and what type of an exemption may apply. Currently, UTRCA policies recognize certain activities that fall under “minor works” that are expedited permit processes as well as exemptions (e.g.. minor landscaping, structures exempt from requiring building permits due to their size).

It is recommended that the MNRF should also provide implementation support materials to provide the policy framework for exempting low-risk development activities. Finally, it should be acknowledged that any exemptions put an unfunded compliance burden on conservation authorities. Conservation authorities will have to give consideration to this issue when developing policies for low-risk development activities.

PROPOSED CHANGE 7 – Transparency of CA Regulatory Policy
The Minister is proposing to require conservation authorities to develop, consult on, make publicly available and periodically review internal policies that guide permitting decisions.

UTRCA response:
UTRCA supports this proposal. UTRCA’s current permit policies, approved by the UTRCA’s Board of Directors, have been in place since 2006 and were developed through a comprehensive consultation process. These policies are public documents and are posted on the UTRCA website at;
http://thamesriver.on.ca/planning-permits-maps/utrca-environmental-poli… .

Updates to our policies have been awaiting completion of the Conservation Authorities Act amendment process. To ensure greater consistency across the province, it is recommended that the MNRF should provide implementation support materials for CAs to base their internal policies upon.

PROPOSED CHANGE 8 – Require Public Notification of Mapping Changes
The Minister is proposing to require conservation authorities to notify the public of changes to mapped regulated areas such as floodplains or wetland boundaries.

UTRCA response:
UTRCA supports this proposal to include a provision in the regulation that the public must be notified of changes to mapped regulated areas. The UTRCA Board of Directors previously endorsed the Conservation Ontario document titled Procedure for Updating Section 28 (Regulation Limit) Mapping in August 2018. Generally, the CO Mapping Update Procedure 2018 outlines that the level of public consultation and notification is dependent on the extent of the update. Where mapping updates are deemed minor, then notification to the Board of Directors and/or posting a notice on the CA website is suggested to be sufficient as a best management practice. For more major mapping updates, it is suggested that an increased level of public consultation is appropriate, including at least one public meeting to provide information and receive comments. Examples include;
 Where a municipality is undertaking a land use planning approval such as a secondary or community plan or environmental assessment and new or updated natural hazard mapping is available, the UTRCA considers the public to be notified of these changes through the municipal consultation process. This avoids duplicate public processes.
 Many updates to mapping are the result of site specific planning or permit applications and the landowner is notified as part of the process. These are considered minor housekeeping updates and are undertaken from time to time. Since effected parties are involved and aware of the changes, additional public notification is not undertaken.
 Guidance on acceptable public notification processes would be helpful to outline options available to conservation authorities. The guidelines should consider factors such as the scale and scope of changes, alternative public notification opportunities to avoid duplication as well as the size of the watershed for comprehensive update.
Currently, the regulations are what is referred to as a “text based” regulation and not a “mapped based” regulation. While it is acknowledged and supported that CAs should notify the public of changes to mapped regulated areas it should be equally acknowledged that the text of the regulation prevails.

Additionally, the UTRCA suggest that the province require a more consistent and transparent notification process for the provincial wetland evaluation system – particularly when wetlands are evaluated on private lands and are to designated Provincially Significant Wetlands.

PROPOSED CHANGE 9 – Require Reporting on Service Delivery
The Minister is proposing to require conservation authorities to establish, monitor and report on service delivery standards including requirements and timelines for determination of complete applications and timelines for permit decisions.

UTRCA response:
UTRCA supports the province’s update to the regulation to require CA’s to monitor and report on service delivery standards – based on standardized timelines. The UTRCA Environmental Planning & Regulations Unit has a new database that will allow us to improve our monitoring and reporting on applications. The current Administration & Enforcement - Section 28 Board reports include information related to when the application was deemed complete and when the permit was issued. Tracking this information will allow us to report on our Service Delivery.

In addition, we are working with Conservation Authorities across the province to establish checklists and guidelines to focus the efforts of the development industry and CA staff on providing timely and clear pre-consultation criteria to encourage complete and thorough technical submissions. This effort to address complete applications and complex issues at the beginning of the land use planning or permit process to avoid delays through the process.

It should be noted UTRCA and other CAs are currently working in partnership with Conservation Ontario to develop a client-centric customer service training program – targeted on further improving CA client-service and accountability; increasing the speed of approvals; and reduce red tape and regulatory burden. UTRCA’s Board approved a set of actions for streamlining conservation authority activities at its meeting in April 2019.

Although the UTRCA is able to achieve success in meeting the provincial timelines, there are opportunities to improve the complete application process and improve the quality of technical submissions and achieve faster approvals. Technical guidelines and checklists are used for this purpose. UTRCA would strongly support an update to the 2002 Provincial Natural Hazard Guidelines including new information to address climate change.

PROPOSED CHANGE 10 - Once the regulation is established, the Province is also proposing to bring into force un-proclaimed sections of the CA Act associated with CA permitting decisions and regulatory enforcement.

UTRCA response:
The UTRCA supports proclaiming un-proclaimed sections of the Act related to non-compliance with Section 28 Regulations. During the 2017 CA Act review and amendments, substantial amendments were made to the Act to enhance enforcement mechanisms, i.e., the ability to stop work, the ability to enter privately-owned land (for the purposes of ensuring compliance with permit approvals and conditions and with reasonable grounds to believe an offence has occurred), and the ability to charge significantly higher (offence) penalties than those currently identified within the Act. These are important tools to allow CAs to enforce the conditions placed on permits and the address non-permitted activities.

Thank you again for the opportunity to provide input on this important provincial initiative. Note that UTRCA will have additional more detailed comments upon the release and review of the draft amended regulation.

With regards,

Ian Wilcox, General Manager
Upper Thames River Conservation Authority