Prince Edward County Field…

Prince Edward County Field Naturalists Comment Re ERO posting 019-2927: Proposed updates to the regulation of development for the protection of people and property from natural hazards in Ontario

We note that this posting revives a previous posting in April 2019 for an amendment to consolidate Ontario’s individual conservation authority-approved regulations into a single MNRF-approved regulation (re: ERO 013-4992). In response to feedback received the government decided not to proceed with the amendment at that time.

The government is once again proposing a single regulation that will apply to all 36 conservation authorities. However, this new proposal differs in important respects from the 2019 proposal. In sections (1) to (5) we identify some positive changes the government was proposing to make in 2019 that have not been included in the regulation as posted and give reasons why they should be included. In sections (6) and (7) we provide some additional comments on the proposed updates.

1. Extreme Weather Events
The 2019 posting included a proposal to improve the efficiency and effectiveness of the regulations for conservation authorities, with the goal of strengthening Ontario’s resiliency to extreme weather events. The government proposed that:
“As more extreme weather events occur that threaten our homes, businesses and infrastructure, it’s important to ensure conservation authorities deliver on their core mandate for protecting people and property from flooding and other natural hazards. Improving the efficiency and effectiveness of these regulations is critical component of this government’s strategy for strengthening Ontario’s resiliency to extreme weather events.”

PECFN Comment:
The government was clearly concerned in 2019 about the increasing occurrence of extreme weather events and was on the verge of creating a new regulation that would ensure conservation authorities could deliver on their core mandate to protect people and property. The government recognized that the regulations in general, and conservation authorities in particular, were critical components of its strategy for strengthening Ontario’s resiliency to extreme weather events.

Unfortunately, the government appears to have backtracked on this since 2019. The updated regulation makes no mention of threats posed by extreme weather events to homes, businesses, and infrastructure; makes no mention of strengthening regulations to ensure that conservation authorities can deliver on their core mandate as extreme weather events occur with more frequency; and makes no mention of the role of conservation authorities in the government’s strategy to strengthen Ontario’s resiliency to extreme weather events.

In other words, no measures are built into this updated regulation to enable conservation authorities to deliver on their core mandate to protect people and property from the increasing occurrence of extreme weather events including heat waves, severe rainstorms, ice storms, windstorms, coastal retreats, and droughts.

In the coming years even more homes, businesses and infrastructure (eg. roads, transmission lines) will be at threat from extreme weather events. In the context of the current posting, the government is proposing to build 1.5 million homes over the next 10 years. At the same time, thousands of industrial and commercial development projects will be proposed and are subject to the same regulation. Given the growth projected over the next ten years, the province’s 36 conservation authorities need to be focused on strengthening the resiliency of their respective watersheds. This is critical to protecting people and property.

For example, studies indicate that Prince Edward County is the most drought-prone areas in Ontario. Our wetlands play a crucial role in mitigating the impact of drought. However, every single Provincially Significant Wetland in the County is now open to being re-evaluated and downgraded to the “Wetlands – Other” category as the result of changes that were formally approved by this government on December 22, 2022 (ERO 019-6160). The loss of our wetlands to virtually unregulated development will eventually reach a tipping point, where there will be permanent and irreversible harm to the people, communities and businesses in the County.

As you know, conservation authorities have invaluable information about areas within their respective watersheds and they know which areas are most threatened by extreme weather events. We understand that conservation authorities already regulate areas where threats are obvious, such as floodplains, shorelines, wetlands and hazardous lands but it’s become increasingly clear in the past years that regulating development in these areas is not enough. Other areas are now at threat, that were not under any threat fifty years ago. We urge you to give conservation authorities the tools they require to deliver on their core mandate for protecting people and property from flooding and other natural hazards not only in areas identified in the regulation that are prone to flooding and other natural hazards but throughout the entire watershed.

It seems counterintuitive in any case to expect that a regulation which completely ignores the occurrence of extreme weather events could possibly succeed in protecting people and property. Indeed this is the exact point of section 3.1.3 in the Provincial Policy Statement which states that: “Planning authorities shall prepare for the impacts of a changing climate that may increase the risk associated with natural hazards.”

In this regard, for example, the government could be planning to mitigate impacts of flooding by promoting the installation of permeable paving for sidewalks and driveways for these 1.5 million homes and for all the new commercial and industrial developments that will be built. According to one manufacturer, permeable paving helps restore natural infiltration functions to the landscape and reduces impacts to watercourses by allowing rainwater to slowly infiltrate into the ground. This innovative technology can be used in driveways, parking lots, sidewalks, courtyards and plazas.

The regulation that the government ultimately decides upon will either leave this province with serious, and quite likely unsolvable problems down the road or it can be done the right way, where the government has the foresight to incorporate the best practices available to strengthen Ontario’s resiliency to extreme weather events. The role of conservation authorities in this cannot be emphasized enough.

2. Conservation of land
The 2019 ERO posting included a proposal by the government to define undefined terms including “conservation of land” as “consistent with the natural hazard management intent of the regulation.” Instead of doing so, the government chose to eliminate all references in the regulation to “conservation of land” in its updated regulation.

PECFN Comment:
We agree with Conservation Ontario’s comment on the 2019 ERO posting, i.e., that providing a definition for “conservation of land” is consistent with the natural hazard management intent of the regulation. According to Conservation Ontario: “to reduce risks associated with natural hazards, there is a general need to protect wetlands, valleylands and watercourses from hydrologic impairment from development activities, alteration or interference at a site-specific scale, as well as at a subwatershed and watershed scale.” In their comment, Conservation Ontario also recommended that the definition of conservation of land be tied to climate change considerations.

The OFA (Ontario Federation of Agriculture) proposed the following definition for “conservation of land” in their 2019 submission as follows: “conservation of land” means the protection, management, or restoration of lands within the watershed for natural hazard management, and may include maintaining or enhancing the vegetative cover of non-agricultural lands.”

We agree with the OFA on the importance of maintaining and/or enhancing the vegetative cover on non-agricultural lands. We’ve all seen on the news what happens in California and in other states when natural ground cover is removed. As noted in (1) above, Prince Edward County is prone to severe droughts and in fact has the least rainfall of any municipality in Ontario between May and August. This suggests that the County may be vulnerable to wildfires during these months in the years to come, if vegetative cover is removed, and our wetlands are lost to development.

We would point out as well that even the Ontario Home Builders’ Association (OHBA) requested that the government provide a definition of “conservation of land” In the regulation in their 2019 submission on ERO 013-4992.

To be done right, regulating development requires putting at least some value on the conservation of land. Almost everyone is aware of the harmful ecological practices elsewhere that have ultimately led to loss of life and property, for example the wildfires in California, Oregon and Arizona, with 12 million acres burned in California in 2020. We encourage the government to take a lesson from this and take the necessary step of including “conservation of land” in the regulation, in the recognition that conservation of land is a critical part of protecting people and property.

3. Pollution
The 2019 posting included a proposal to update key regulatory terms to better align with provincial policy, including: “wetland”, “watercourse” and “pollution”. Both “wetland” and “watercourse” are defined in the current proposal however there is no definition for “pollution”. In fact “pollution” is not mentioned anywhere in the proposed regulation.

PECFN Comment:
Regulations were brought in 60 years ago “to prohibit or regulate the placing or dumping of fill in defined areas where, in the opinion of the Conservation Authorities, the control of flooding, pollution or the conservation of land may be affected”. Among other things, it was becoming increasingly clear that stormwater runoff was a major source of phosphorous pollution.

Given the known impacts of pollution, and the exorbitant cost of reversing the damage from pollution, the need to regulate pollution is as important now as it has ever been. In fact, it’s more important than ever given the context of this proposal that supports the construction of a million and a half new homes over the next ten years and faster and more predictable approvals for all forms of development, including residential, industrial and commercial developments.

This rapid increase in development will lead to even bigger problems with pollution. For example, Prince Edward County is a relatively small island with over 800 km of Lake Ontario shoreline. Due to its irregular shape, no point in the County is more than seven or eight km away from the Lake. The County is covered with wetlands and small lakes, both of which are vulnerable to pollution in being less able to dilute and flush pollution from development as effectively as larger waterbodies and rivers. The County also has a relatively flat topography, which acerbates the problem. The County’s economy, which is predominantly based on agriculture and tourism, is inexorably tied to our having a healthy watershed. A healthy watershed requires the management of pollution.

There are management strategies for minimizing phosphorus loading from stormwater runoff to surface water, i.e. into Ontario’s watercourses, wetlands and lakes. But these strategies require the expertise of conservation authorities. It is therefore greatly disturbing that the government is proposing in another regulation to eliminate all future collaboration and coordination between conservation authorities and municipalities.

Although this is obvious, it’s worth pointing out that the issue of pollution is closely tied to the conservation of lands and that neither “pollution” nor “conservation of lands” have been included in the updated regulation. We urge the government to reconsider the decision to remove them in the updated regulation. As noted in (1) above, the regulations governing conservation authorities that the government ultimately decides upon will either leave this province with serious, and quite possibly unsolvable problems down the road or it can be done the right way.

Conservation authorities have a unique and irreplaceable role in protecting people and property not only from natural hazards but also from hazards induced entirely or predominantly by human activities and (bad) choices, of which pollution is only one example.

4. 30 metre proposal re development in wetlands
In the 2019 ERO posting the government considered reducing regulatory restrictions between 30 metres and 120 metres of a wetland. The current proposal recommends “updating the “other areas” in which prohibitions on development apply to within 30 metres of all wetlands.”

PECFN Comment:
We have two comments on this change:

i) Section 3.1.4(2) of Prince Edward County’s Official Plan does not permit development within 50 metres of an identified Wetland – Other, unless “the ecological function of the feature has been evaluated through an EIS that demonstrates there will be no negative impacts on the natural feature, or its ecological functions.” Up to now, Quinte Conservation, our local conservation authority, has total discretion over this matter. However, a province-wide regulation, if approved, would be in direct conflict with the County’s municipal processes and policies.

We note in this regard that the County’s Official Plan has been approved by the Ministry of Municipal Affairs and Housing. Regulations should not upend approvals granted by other ministries, as this one would.

Ii) We strongly oppose eliminating the 30 m to 120 m regulatory restriction and instead restrict development to within 30 metres of wetlands. We refer you to Conservation Ontario’s 2019 comments on the proposal to ERO 013-4992 as follows: “There are certain large-scale, high risk activities taking place beyond 30 m from a wetland that have the capacity to impact the hydrology of that wetland. These activities must continue to be regulated by conservation authorities to control flooding. Among other things, these activities include:
• site grading, involving areas cumulatively equal to or greater than 1 hectare;
• the temporary or permanent placing, dumping or removal of any material, originating on the site
or elsewhere, involving areas cumulatively equal to or greater than 1 hectare;
• municipal servicing;
• utility corridors;
• public roads.”

Reducing the regulated area of wetlands to 30 metres will have serious consequences in Prince Edward County, which is covered with wetlands, large and small (as of 2012 approximately 11,176 hectares of wetlands were evaluated by the MNRF). Due to its relatively small land size, almost every major development proposed in the County is invariably near a wetland or a number of wetlands. This is actually a very good thing, because most of the County consists of limestone bedrock covered by a thin layer of soil. Our wetlands act “as natural sponges, absorbing water from rainfall and snowmelt (and) they slow down the movement of excess water by holding onto it and releasing it gradually.”

The problem is that if only 30 metres are regulated by conservation authorities going forward, it will only be a matter of time before the hydrologic function of our wetlands, or at least the hydrologic function of wetlands in areas of the County that experience a great deal of development, will be obstructed to the extent that more flooding is likely going to occur. With more flooding events, pollution will be a greater threat.

5. Floodplains
Based on the current regulations set out in “POLICIES AND PROCEDURES FOR CONSERVATION AUTHORITY PLAN REVIEW AND PERMITTING ACTIVITIES”, conservation authorities “have a commenting role in approval of new or amended ‘Special Policy Areas’ for flood plains under Section 3.1.3 of the PPS”. Among other things, the regulated activities currently include development in areas related to natural hazards such as floodplains, shorelines, wetlands and hazardous lands (i.e., lands that could be unsafe for development because of naturally occurring processes associated with flooding).

PECFN Comment
No mention is made of “flood plains” in the proposed regulation. We also note that “flood plains” would not be included in the definition of “hazardous lands” that the MNRF is proposing in section 2.1.2 as follows: “Land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock.”

In this regard, the Provincial Policy Statement defines “flood plain” as follows: “for river, stream and small inland lake systems, means the area, usually low lands adjoining a watercourse, which has been or may be subject to flooding hazards.”

We urge the government to define “flood plain” and to use the specific approach to development in flood plains that is recommended in the PPS. There is no need, in our view, to create definitions for “flood plain” when there is a perfectly adequate definition already in the PPS. If the MNRF considers that a new definition is needed it would be helpful for the MNRF to explain why in its view the PPS definition is inadequate.

Recently the federal environment minister Steven Guilbeault noted that some of the lands where housing or commercial development is being proposed in Ontario are in floodplains, and flooding is the top climate change cost in Canada. If development is not going to be regulated in floodplains – and it certainly appears that way - the government will never achieve its stated objectives to:
• increase public health and safety and prevent loss of life;
• reduce property and environmental damage and social and economic disruption; and
• reduce costs to people and governments for emergency operation, evacuation, restoration and
protection infrastructure.

ADDITIONAL COMMENTS

6. Re: streamlined approvals for certain low-risk development activities from requiring a permit.

(i) As we are sure you agree, it’s one thing for the government to identify low-risk activities in a regulation intended for conservation authorities and another thing completely to identify low-risk activities to every landowner in the province.

In regard to the latter, the government is effectively arming people who are engaging in (or in their opinion are engaging in) low risk activities with the tools to appeal any municipal decision to refuse a permit. Moreover, residents will be more likely than not to win such an appeal if the activities they are undertaking fall on the list in section in 2.2.1.

For all intents and purposes, the government is undermining the County’s zoning bylaws that include, among other things, how land may be used, where buildings and other structures can be located, and the types of buildings that are permitted and how they may be used and is potentially undermining the County’s Official Plan. At the very least, the government is potentially contradicting its’ stated position on the importance of municipal zoning bylaws. (i.e. “Why You Need a Zoning By-law” https://www.ontario.ca/document/citizens-guide-land-use-planning/zoning…).

Furthermore, even if a municipality did ultimately agree that the activities identified in section 2.2.1 do qualify as “low-risk activities”, a municipality should still have the ability to consult with their local conservation authority ( which they would not have if the changes proposed in ERO 019-6141 go through).

(ii) The proposed updates are based on unreasonable expectations of people, for example that people will take time to familiarize themselves with all of the regulations. A good example is the 30 metre “wetland - other” prohibition. For example, a person who has been informed by their local conservation authority that no permit is needed for “a non-habitable accessory structure that is not placed within hazardous land or a watercourse or wetland” will use their own discretion on where to place this structure - the result being that structures may be built only a few metres from the wetland on their property. If the government is proposing to streamline approvals for low risk activities, the government needs to find responsible ways of doing so.

7. Conservation Authorities have the power to refuse permits, i.e. “After holding a hearing, the CA shall: refuse the permission (permit); grant the permission with conditions; or, grant the permission without conditions.” We note that there’s nothing in the updated regulation upholding the power of conservation authorities to refuse permits. This would seem an obvious thing to include in a regulation that focuses on permitting decisions.