Where the Minister takes…

Where the Minister takes over the CA permitting role in place of a CA, permit decision-making could inadvertently lose consistency from the standard application of CVC’s extensive watershed knowledge and technical experience relating to the Credit River Watershed – resulting in process inefficiencies and potential risks to life and property. Some key potential implications of the proposed regulation as currently outlined, this may include:

1. Where the Minister issues an order to take over and make a decision on a permit application in place of a CA, the details of the administration and permit review process is unclear - despite the broad statement for the requirement of the Minister to base their decision on the same criteria concerning natural hazards and public safety that are considered by CAs. Section 28 permit decisions are made with regard for the best available information, local knowledge, and local upstream and downstream conditions to avoid the potential for (negative) precedent-setting decisions, cumulative impacts, risk to public safety and property damage, and future management challenges. In addition, the CA permit regulation outlines permit application requirements and consultation parameters to improve transparency and consistency.

Comment: To improve transparency and consistency with the existing CA permit process, the province should consider including (or make reference to) administrative provisions currently found in Ontario Regulation 41/24. This may include more detailed provisions similar to those found in:

Section 6 (pre-submission consultation);
Section 7 (application for a permit);
Section 9 (conditions of a permit); and
Section 12 (policy and procedural documents re permits).

Additionally, reference to the fact that a Minister’s decision is not precent setting should be included in the regulation to avoid confusion and conflict with local watershed-based objectives and policies.

2. CAs are required to maintain regulatory mapping for transparency of public information. Many CAs do this by regularly updating local flood and erosion hazard mapping layers based on information received from applicants through the planning and permitting processes. Where the Minister makes a decision on CA permitting matters (in place of a CA), it may be challenging for CAs to integrate the technical information and/or make future decisions in the project area since the CA was not involved in the permitting process to manage technical requirements or upstream/downstream potential impacts.

Comment: To ensure consistency and recognize the unique characteristics and circumstances of a CA’s watershed, the province should further consider developing detailed technical guidance related to local watershed-based technical requirements (based on local circumstances) – or alternatively, include direction in the proposed regulation requiring the Minister to make decisions consistent with the existing policies, procedures, and technical guidelines of the affected CA.

3. Where the Minister orders permit decision-making responsibilities from a CA, it is currently unclear who will be responsible for supporting/attending potential appeals to the Ontario Land Tribunal (OLT) or undertake compliance and enforcement activities – including any subsequent liability should future problems arise from a Minister’s CA permit decision.

Comment: For clarity, the province should consider including provisions, or clarity, in the regulation that clearly outline responsibilities and accountabilities related to:

i. Who is responsible for resourcing OLT appeals where the Minister fails to make a decision within prescribed timelines;
ii. Who is responsible for compliance and enforcement activities where the Minister issues a CA permit in place of the CA; and
iii. Who is, and is not, accountable (or liable) for the Minister’s permit decision should future issues, or litigation activities, arise.

At this time, it is CVC staff’s opinion the Minister should be responsible (and accountable) for each of the items listed above where the Minister is directing the issuance of the permit, recognizing the affected CA is not responsible (or involved in) the permit analysis or decision-making process - and does not receive resources (most notably the associated permit fees) under these circumstances.

4. It is noted some of the development activities listed as being of provincial interest in the proposal details (e.g. community services - health and long-term care) are also defined as “Institutional uses” in the Provincial Planning Statement (PPS) and are not permitted in hazardous lands. If the Minister begins to permit these types of development activities, vulnerable populations, or sensitive uses in hazardous lands, it would pose a significant increase to the risk to life and property and not be consistent with provincial policy.

Comment: For consistency with provincial policy, and to support the province’s commitment to public health and safety, reference to provincial interests that are related to the Minister permitting institutional uses within hazardous lands (e.g. health and long-term care facilities) should be removed. CVC staff also suggest that reference to the Minister’s decisions being consistent with the PPS should be included (as required under Section 2 of the Planning Act).

5. Where the Minister may make a CA permit decision before municipal planning approvals are granted, a municipality could be put in a difficult position where the planning application is not consistent with provincial policy and/or conform to municipal policy.

Comment: For clarity and consistency with Ontario’s long established planning framework, the proposed regulation should include a provision identifying that all Planning Act approvals required to facilitate the proposed development activity have been received (perhaps as one of the requirements for a complete application) – prior to the Minister accepting the request to issue a CA permit.

6. The Ministry may not have the capacity or expertise available (e.g. water resources engineering and environmental planning expertise) to review permit applications under the CA Act and may need to hire additional staff or consultants. This creates process inefficiencies and duplication (since CAs already have these resources) the province would be responsible for, including associated costs (cost to taxpayer). While it is understood the Minister would require permit application fees the CA would otherwise recover, it is noted the cost of hiring new staff or consultants to periodically review applications would be substantially higher than typical CA permit fees – as these factors are not usually considered in fee analysis and determination.

It is notable CVC averages over 300 CA permit applications per year. Since 2015, only two permit applications have been denied by CVC (via CVC Section 28 Hearing Board). These applications were for a residential development in an area of significant depth of flooding, and for proposed development within a Provincially Significant Wetland (PSW) – inconsistent with the PPS and not conforming to CVC regulatory policies. It is also notable that since the inception of the province’s CA review, CVC has issued over 95% of all CA permit applications within expected timelines - demonstrating the success of CVC’s approach to work with applicants to find solutions.

In our experience, the timelines for issuance of CA permits are more often in the hands of the applicant to address comments - than under CVC’s technical review. In many circumstances, the time gap an applicant takes to address permit related comments is well in excess of double the amount of time it takes for CVC staff to reply.