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I provide comments to Environmental Registry Ontario (ERO) posting No. 019-0005 by asking specific questions.

Description of Regulation:

Compliance with Planning Act

1. The sewage works that require approval under Section 20 of the Environmental Protection Act submitted by Developers must comply with the requirements of the Planning Act prior to the construction of the extension of the collection system. The proposed regulation will allow developers who enter into an agreement with the municipality to construct works that the municipality may own under the municipality's Environmental Compliance Approval (ECA).

The development agreement provides for the retention of financial securities, inspection of the installed sewers after construction, a maintenance period and assumption, and the transfer of parcels of land through the land subdivision process. It does not provide for the Ontario Municipal Board appeals process where a developer can propose a higher density than permitted under the City's Official Plan. Section 37 of the Planning Act allows a City to negotiate contributions toward local community benefits for development applications that exceed a site's zoned height and density. It is not clear how a municipality can pre-authorize sewage works proposed by a developer, prior to the resolution of the appeals process, when it cannot verify there will be sufficient sewage capacity to accommodate the final density of a specific development site, along with all other development sites.

Will a municipality be able to require a developer to make a declaration confirming that it will not appeal the decision of City Council to the Ontario Municipal Board as part of the development agreement prior to receiving and processing the sewage application under an Area-Wide ECA?

2. Stormwater works are required to provide quantity control, quality control and water balance to comply with MECP Guidelines, Low Impact Development, and their Interpretation Bulletin for Expectations regarding Stormwater Management (February 2015). Section 42 of the Planning Act allows a City to require a developer to provide parkland. For non-residential development the amount of parkland is two (2) percent of the proposed development site. For residential development, the amount of parkland required depends on where in the City the development is proposed. In priority areas, the amount of parkland is 0.4 hectares per 300 units with a cap of 10 to 20 percent of the site area depending on the size of the development site.

Will a municipality be able to require a developer to provide a minimum amount of green space under the development agreement to ensure the MECP's stormwater management guidelines are met?

3. Wastewater works proposed by developers for which there is an agreement with a municipality under the Planning Act are pre-approved under the Environmental Assessment Act, under Schedule A of a Class Environmental Assessment. Under the pre-authorization process the municipality is the beneficial owner of the works at the time of ECA approval. To accommodate the new process, will there need to be amendments to the Environmental Assessment Act or the associated Class Schedules?

Compliance with Ontario Water Resources Act

4. The definition of 'Person' under the OWRA is 'includes a municipality'. Section 53 of the OWRA specifically uses the word 'Person' in regard to using, operating, establishing, altering, extending or replacing new or existing sewage works. Will this definition need to be revised to provide for the Prescribed Persons regulation?

5. A municipality may determine that under certain circumstances, it may not wish to include developer works under the pre-authorization because a) it is not sure that the activity meets the pre-authorization criteria, b) anticipates the assumption period will be very long and the municipality does not want to be the Owner prior to assumption of the works, or c) in any other case. In these circumstances, will a municipality be permitted to require a developer to seek a direct submission ECA? If so, will the applicant have to be the municipality?

6. As a follow-up to the above question, can a Municipality's Area-Wide ECA include terms and conditions to stipulate when it does not want to include a developer's works under the pre-authorization (as opposed to when the MECP precludes the pre-authorization due to technical design considerations)?

7. Should a municipality determine that it does not have the resources to administer a full pre-authorization program; will a municipality have the right to only include its own Capital Works under a pre-authorization and continue to require developers to apply for individual ECAs on a site-by-site basis?

8. Developments can vary in size and complexity. The assumption period can be extensive. The constructed works must meet municipal standards prior to assumption. The financial security amounts are set based on cost estimates to complete the works. Should the works not be completed by the developer or not constructed in accordance with the final plans, what recourse will municipalities have if it is responsible for the works at the time of approval as opposed to notifying the MECP when there is a change of ownership? Will the pre-authorization agreement provide a procedure for Ministry notification when the sewage works are a) not fully constructed or b) not constructed in accordance with MECP guidelines? In what situations will it trigger a Direct Submission?

9. Private sewage works which include stormwater management works and require an ECA are currently directly submitted to the Ministry.

How will the approvals of private stormwater management works which require a connection to the municipal storm sewer system be coordinated with related works under the pre-authorization process?

10. The intent of the regulation under Environmental Protection Act is for alterations to sanitary and stormwater systems for new housing and commercial developments. The regulation does not discuss whether there will be any impacts to the Building Code Act and Building Code under the jurisdiction of the Ministry of Municipal Affairs and Housing.

Will the proposed prescribed person regulation under the Environmental Protection Act posted by the Ministry of the Environment, Conservation and Parks require any changes to the Building Code as there is cross references to the Ontario Water Resources Act and to the Environmental Protection Act? At what point in the process will there need to be a verification of downstream sewage capacity prior to a Building Permit being issued?

Purpose of Regulation

11. The Ministry is transforming its environmental permissions framework to utilize a risk-based approach to improve service delivery and public transparency. Under the current permissions framework, the applicant and bearer of the ECA is considered to be the 'Owner' of the works. The proposed Area-Wide ECA will consider the municipality as the 'Owner' of the works as per the agreement between the municipality and the Ministry.

Will the terms and conditions in the Area-Wide ECA distinguish between an 'Owner' and a 'Beneficial Owner'? Will there be a distinction made between 'Owner' and 'Beneficial Owner' with respect to Fines and Penalties for non-compliance under the OWRA? If strict environmental protection standards are not maintained during construction will the developer or municipality be liable?

Other Information

12. The Ministry has indicated its goal is to a) reduce the number of ECA applications received for low-risk pipe to pipe sewage works, and b) consolidate permissions. The Ministry will then be able to focus its resources on activities which pose a greater risk to human health and the environment.

Will this new administrative process eliminate the current Transfer of Review Program some municipalities have completely, such that there will only be Direct Submission Applications and Pre-Authorized Approvals?

Other Public Consultation

13. Under the Transfer of Review Program, the MECP requires confirmation that the project is in compliance with a) the Environmental Assessment Act, b) whether the project is a prescribed instrument under the Environmental Bill of Rights, c) whether Duty to Consult requirements have been met for Indigenous consultation, and d) whether there are drainage works under the Drainage Act. This is required for each and every project. It is not clear on how these confirmations are to be made under an Area-Wide ECA.

Has indigenous consultation been done for a) Bill 108 to help streamline the new process and b) to ensure that all necessary Public Consultation will be done for all applications under an Area-Wide ECA?

Regulatory Impact Statement

14. The Ministry is proposing the regulation to reduce the number ECAs to focus on the performance of the municipality's wastewater and stormwater collection systems as a whole with updated environmental performance conditions.

Will environmental performance conditions for existing major facilities, for which 'use' and 'operation' is not considered to be a low-risk activity (typically located at the end-of-pipe prior to the outfall to the natural environment), still be enforceable as per the existing ECA issued to the municipality (i.e. the water quality sampled and measured based on maximum discharge parameters such as Total Suspended Solids, Total Phosphorus loading, BOD, Temperature, etc.)? For developer works, will the municipality be required to assume the terms and conditions on the existing ECAs for sewage works which have not yet been transferred from the developer? If so, will there be a transition period granted?

15. The new process is to create certainty in construction planning and timelines, and to reduce redevelopment costs.

There will still be a need for higher risk activities to be reviewed directly by the Ministry. For sewage works which contain a component which must be reviewed by a Direct Submission (such as a new pumping station) and a separate component that can be reviewed under the pre-authorization process (such as the linear sewers to the pumping station and the forcemain from the pumping station), will there be a requirement for the proponent to obtain the Direct Submission ECA prior to submitting an application under the pre-authorization process?

16. It states that no anticipated administrative costs to businesses will occur as a result of the proposed regulation. The current MECP fee structure for review of applications is flat rate based on the type of activity. Will this same fee structure continue for Direct Submission applications and will the MECP place any restrictions on municipalities in charging developers an application review fee, in the amount determined by the municipality, for a submission for pre-authorized works under the Area-Wide ECA?

EPA Regulation ECA Sewage- Draft

17. Section 1. (2) requires an agreement with a municipality yet Section 2. permits that ownership of the sewage works may be transferred to i) the municipality, ii) public utility, iii) municipal service board, or iv) a corporation established under the Municipal Act.

There have been projects where a development has been serviced by extending sewage works across a municipal boundary. Will sewage works which cross a municipal boundary for which there is a tri-party agreement between a developer and two municipalities be included in the Pre-authorization process?

18. The agreement provides that ownership of the sewage works may be transferred to either a municipality, public utility commission, municipal service board or corporation established under the Municipal Act or the City of Toronto Act. As an example, the Toronto Transit Commission (TTC) is a board established under the City of Toronto Act, and has transferred ownership of sewage works to the City of Toronto after construction and a maintenance period.

The clause is written without indicating a preference of ownership of the sewage works. Will the MECP require the pre-authorization agreement to state the specific entity to which the sewage works will be transferred? Will the term; 'prescribed person', be defined to include developers and all other parties who construct sewage works with a plan for municipal ownership?

19. The agreement provides that ownership of the sewage works may be transferred to either a municipality, public utility commission, municipal service board or corporation established under the Municipal Act or the City of Toronto Act. There is no mention of sewage works to be transferred to Conservation Authorities. The current name of the Ministry suggests that the mandate of Conservation Authorities for watershed planning, restoration, development, and management will be considered in the process.

Will the MECP set requirements under the pre-authorization agreement for municipalities to work with conservation authorities to measure effluent quantity and quality at outfalls to the natural watercourse, which will need to be reported to the MECP? Are there any anticipated changes to the Provincial Water Quality Objectives (PQGOs) for threshold limits of parameter concentrations which will be permitted to discharge to the storm sewer system? Will these limits be stated in the conditions for the Area-Wide ECA agreement, and if so, will municipalities be given time to amend their municipal code (Sewer Use By-law)?

20. The regulation is under provincial jurisdiction. There have been sewage works applications for projects initiated by a Provincial entity (i.e. Infrastructure Ontario) and projects initiated by a Federal entity (i.e. Canada Lands Company Limited, Toronto Port Authority, Parc Downsview Park Inc., etc.).

If the municipality is required to be the 'Owner' for the ECA sewage works application, either through a pre-authorized process or through a direct submission to the MECP; what recourse will the municipality have if the proponent proceeds with the construction of the project without the sign-off by the municipality?

21. Will this pre-authorization process have any impact on Environmental Activity and Sector Registry (EASR) activities, Permits to Take Water, or effluent discharge requirements to sanitary sewers, storm sewers, or combined sewers?

22. Will the pre-authorization process have any impact on existing ECAs issued by the MECP for Sewage Treatment Plants? How frequently will a municipality have to confirm Uncommitted and Reserve Capacity at Sewage Treatment Plants as stipulated under MECP Procedure D-5-1? Will the municipality be able to require a more stringent design for the waterproofing of building foundation walls than that mandated by the Ontario Building Code to limit the amount of groundwater discharge to the sanitary sewer system if it determines that this is necessary measure to ensure reserve capacity?

It would be beneficial if the Ministry provides answers to the above-noted questions prior to implementation of the new regulation.