Ausable Bayfield…

Ausable Bayfield Conservation Authority comments

Re.: Regulatory proposal consultation guide

Proposed updates to the regulation of development for the protection of people and property from natural hazards in Ontario

December 19, 2022
ERO number: 019-2927
Posted: October 25, 2022

Ausable Bayfield Conservation Authority (ABCA) comment:

Staff of the ABCA have reviewed the Regulatory proposal consultation guide (The Guide) and offers the following comments.

General:
We find that The Guide is, in some instances quite detailed, yet in others too nebulas to solicit anything more than general comments. Further, The Guide alludes to possible significant changes without any detail, or background. For example, it alludes to ‘ …a first step… ’ but offers no further information.

Without clear and concise information it cannot be expected that agencies, and the public in general, will be able to offer detailed comments. Without fulsome comment the ABCA does not believe that the Ministry would be in a position to advance any updates of the regulation.

In general, Conservation Authorities’ staff make an effort to frequently communicate with member municipalities. Many of the proposed changes including those to the regulation have the potential to work opposite to these efforts and create barriers to effectively meeting the primary objectives: directing development away from natural hazards. This is why proper implementation of proposed changes is so important.

The ABCA agrees with and supports some of the proposed changes but is extremely concerned about others. The ABCA recommends that the Ministry continue to work with its conservation authority partners.

Section 2.1:

Definition of watercourse
Staff of the ABCA welcome a refined definition of watercourse.

We are concerned, however, with the undefined terms ‘bed and banks or sides’. Such terms, it is feared, are less precise than the current definition and will generate greater confusion and wider interpretation. It is recommended that the definition be further clarified.

Other Areas
The Guide is unclear as to whether ‘other areas’ will be restricted to only that land which is 30m from all wetlands, or whether the intent to just limit the area around all wetlands while leaving additional ‘other areas’ as they currently are regulated. Staff of the ABCA have serious concern if the intent were to drop additional areas, not associated with a wetland, from regulation.

Section 2.1.1:

Streamlined Approvals
Staff of the ABCA recommends that the Ministry re-engage Conservation Ontario’s Section 28 Committee to help both identify and refine and activities for streamlined approvals. This committee had previously, with the aid of Ministry staff, identified a number of potential activities which may benefit from such a procedure.

With a proposed registration process it is unclear whether conditions could be applied as they are with permits. This would leave the proponent, who is undertaking the work, with greater exposure to legal issues or enforcement if they do not have a document outlining the conditions for the work being undertaken.

Notwithstanding, staff of the ABCA support streamlined approvals for certain activities and generally agrees with the proposed activities with the following exceptions:

Installation of a fence
Fences are of limited concern to the ABCA, however as the proposed activity makes no reference to location, (dynamic beach, floodplain, erosion prone area, wetland etc.) it is suggested the definition of activity be more prescriptive. It is also suggested that the activity define the alignment of the proposed fence. Staff of the ABCA recommends the following:

‘- installation in a floodplain of a fence with minimum openings of 75mm and which is aligned perpendicular to the flow of flood water’

Staff of the ABCA strongly recommends against streamlining the installation of fences in other hazardous areas such as eroding slopes, bluffs of a Great Lake or large inland lake or on a dynamic beach.

Installation or maintenance of an off line pond
The ABCA would have no concern with streamlining this activity – provided that it be stipulated that all excavated material, greater than 10 cubic metres, is removed from the hazardous area.

This activity can generate significate amounts of excavated material or fill. It should not be permitted to remain in an identified floodplain where it is possible to create significant deleterious impacts to flood flow or flood storage or placed on an eroding slope where it may exacerbate erosion.

It is also recommended that such ponds are located away from a top of a steep slope to reduce potential impacts of slope or pond embankment failure. It is recommended that a landward 15 metre setback be used.

Agricultural in field erosion control
The ABCA fully supports its agricultural partners and through its stewardship programs helps with such works as erosion control. It is, however, recommended that the scale of the proposed activity qualifying for the streamlined approval be defined.

For example, it is recommended that a limit on any earthworks or imported fill be defined.

Section 2.1.2:

Watercourse definition
As previously outlined staff of the ABCA believe that ‘bed and banks or sides’ is too ambiguous.

Areas Adjacent of Close to Great Lakes
The Guide indicates that changes are ‘under consideration’. The Guide provides no information about what these changes are, other than to suggest they ‘…are not proposed to be significant…’.

Without any information what changes are under consideration staff of the ABCA are extremely concerned. The Lake Huron shoreline within the jurisdiction of the ABCA is highly hazardous as is evidenced by the effects of recent high lake water levels. It is also highly sensitive to alteration or development activity including shore protection.

The ABCA strongly recommends against any changes until such time that those changes which are ‘under consideration’ are fully outlined for public consideration and an adequate comment period allowed.

Staff of the ABCA also strongly recommends first engaging affected conservation authorities to discuss those changes ‘under consideration’.

Section 2.2

Confirmation of Complete Application
It is assumed that the Ministry is aware that the bulk of the permits issued under Section 28 of the Act are to individuals who are not professional developers or do not have experience applying for permits. Helping such proponents to complete application forms or provide supporting documents can be an iterative and time consuming process.

Requiring conservation authorities to request any information or studies needed prior to the confirmation of a complete application is going to have unintended negative consequences for these proponents – especially in those area served by smaller authorities with limited staff resources.

This, is feared, will compel a conservation authority to request all potential information be submitted at the pre-consultation application stage – before staff has an opportunity to review and understand any details of proponent’s application.

This could result in all applicants being required to submit a number of detailed technical studies, prior to the conservation authority having a chance to fully consider the proposal in detail and being able to scope submission requirements.

This is simply inefficient for the vast majority of applications received and will result in greater costs and delays for those applicants.

Section 3.0

Exempting certain developments approved under the Planning Act from requiring a Conservation Authorities Act approval
The ABCA understands that the Ministry is advancing this matter for discussion, but with other elements of the paper, the ABCA finds details vague. The ABCA is unsure what process this would follow, considering that a CA Act review is more technical in nature than a Planning Act review.

There must be a consistent and transparent assessment of which municipalities are given this broad responsibility and very strict limits on how it is applied (if ever) and who is responsible for oversight.

Notwithstanding, the ABCA strongly recommends the Ministry not to pursue exempting any development which receives Planning Act approval from requiring a CA Act permission. It is the opinion of this Authority that such a process would result inconsistencies across a greater number of municipal jurisdictions, changes and uncertainties with respect to administration, implementation, compliance, with subsequent increased delays and costs. These impacts seem in contravention of the intended purpose.

Further, it is the opinion that the best scale to consider proposals subject to the Conservation Authorities Act is at the watershed scale. The ABCA does not agree that this can be adequately achieved at a municipal planning scale

Thank you for the opportunity to comment please contact us if there are any questions.