The Upper Thames River…

The Upper Thames River Conservation Authority (UTRCA) thanks the Province of Ontario for the opportunity to review and comment on the “Proposed updates to the regulation of development for the protection of people and property from natural hazards in Ontario.” This posting is proposing that the 36 individual conservation authority (CA) regulations be revoked and replaced with a single provincial regulation to ensure clear and consistent requirements across all CAs while still addressing local differences.

The UTRCA is pleased that the government is moving forward with the proposal to update the Section 28 (S.28) regulation made under the Conservation Authorities Act (CAA). However, as wording for the new regulation gets drafted, we implore the Province to involve CAs. Conservation Authority participation in preparation of the Regulation will ensure clarity as well as consistency across CA’s while still allowing for flexibility to identify local watershed conditions.

With respect to the details of the proposed new Section 28 Regulation as summarized in the “Regulatory Proposal Consultation Guide”, the Upper Thames River Conservation Authority offers the following specific comments:

1. Rather than maintaining the existing flood standards used by each Conservation Authority, we recommend the Province consider incorporating a freeboard for unknowns (such as climate change) into flood standards which is in keeping with the current federal recommendations.

2. Proposed update to the definition of “watercourse”:
a. “Bed and banks or sides” as included in the proposed updated definition of “watercourse” are not currently defined in the CA Act. Including these terms in the updated definition will further confuse the application of the Regulation with the addition of more unnecessary terminology subject to interpretation.
b. If the intent of the updated definition is to remove swales and overland flow paths from the regulation, we suggest it would make more sense to keep the current definition of a watercourse but include an exemption based on the science and stream order (i.e. exempt the regulation of “0” order streams).

3. Streamlined approvals for certain low-risk development activities from requiring a permit:
a. The UTRCA is supportive of this effort and are already practicing this approach. More consultation is recommended on the details of how this proposed change is to be applied and how low-risk activities in one of the Province could be considered high risk in another location depending on the watershed conditions.
b. Consideration should be given to who will be reviewing proposals to determine if it can follow a streamlined or normal permit process. Is it up to the landowner or the municipality? This may leave it up to the interpretation of an unqualified person to determine the level of risk.
c. A non-habitable accessory structure 10 square metres or less is not recommended for streamlined approval due to: a) the potential for cumulative impacts (multiple small structures built to avoid approvals for one larger one); b) the potential for impacts to groundwater quality (shallow wetland water table connections) in the absence of appropriate buffers/setbacks from the actual hazard land, watercourse, wetland; c) the potential impacts to groundwater (shallow wetland water table and connections) in the absence of controls for the use of a typical shed building (i.e., storage of oil, gas, chemicals, salts, etc.) immediately adjacent to a wetland.
d. An unenclosed detached deck or patio 10 square metres or less is not recommended for streamlined approval without a proper setback from a wetland.
e. One-time placement of fill not exceeding 10 cubic metres is not recommended for streamlined approval as it will be impossible to ascertain the “one time placement”. It has also been our experience that many landowners have unwittingly received contaminated fill in these scenarios which will have impacts to water quality in the absence of appropriate setbacks from wetlands and watercourses.
f. A seasonal or floating dock 10 square metres or less that does not require permanent support structures and can be removed in the event of flooding is not recommended for streamlined approval in a river or stream system as it has been our experience that they are never removed in time and they detach and damage downstream infrastructure.
g. More information regarding the scenario where streamlined approvals would apply to the installation of tile drain and maintenance or repair of existing tile drains is required. Could this activity not cause flooding elsewhere?
h. The proposed streamlined approvals for the installation and maintenance of an offline pond for watering livestock could have significant implications on flooding and water quality if the pond and/or the excavated fill are not located outside the flood hazard. In the past, activities of this nature have led to filling in the floodplain, resulting in impedance and/or redirection of flood waters to adjacent properties.
i. More information is required regarding streamlined approvals for the maintenance and repair activities for existing municipal drains, as there are scenarios where maintenance works have caused flooding and damage to downstream properties.

4. The UTRCA is supportive of including complete application requirements in the regulation, but strongly recommend that regional differences (such as geology and topography) and variability in proposals be accounted for.

5. The UTRCA strongly recommends pre-consultation be included as a step in the permit application process. This can save applicants time and money, help to inform their proposal details, and ultimately guide the applicants towards a successful permit application package.

6. The UTRCA suggests that proposals are often more complicated than just asking for a plan, as proposed to be included as part of a complete application. Depending on the scale and details of the project, submissions must include proper scale, dimensions, setbacks from landmarks and or lot lines, elevation and survey data, easements, drains utilities, etc. Ideally and plan should be overlain on a property survey and aerial photograph.

7. The UTRCA recommends adding “in proper datum and stamped by a qualified professional” in the proposed complete application requirements for the elevations and grades pre- and post-development.

8. We recommend including “stamped by a qualified professional” to the proposed complete application requirements for drainage details before and after the development.

9. As part of the complete application requirements specifying the complete description of the type of fill proposed to be placed or dumped, we recommend that the type, amount and source of fill should all be required. The location where fill will be removed to should also be provided. Where will the fill be stockpiled on a temporary and/or permanent basis?

10. We note that in the proposed site-specific conditions a CA may attach to a permit, there is no mention of wetland mitigation. How will potential compensation plans be required and how would this impact monitoring of a project?

11. With respect to the proposed changes to the service delivery standards for the administration of permits, the UTRCA has no objections to these changes. However, we suggest that more funding be provided to the CA’s to ensure that we have the propoer staffing to meet service delivery standards. If the population of the Province is to increase substantially, than CA staffing will also need ot increase.

12. With respect to the proposed exemption of development authorized under the Planning Act from requiring a CA Act permit, it is important to note the distinction between establishing the principle of development on a property through Planning Act applications versus the site-specific controls required to safely develop on a particular portion of a property, where such detailed information is not necessarily available (or required) at the Planning Act stage. The UTRCA does not recommend these types of exemptions. All the items commonly left out of the planning stage and deferred to detail design at a later date, would be left to our municipal partners. This would leave our municipalities (many without engineers or technical staff) taking on the full responsibility for inspecting/monitoring and enforcing sediment and erosion controls on site, ensuring stormwater management ponds have been constructed and are function properly and reviewing/approving wet and/or dry flood proofing methods for new houses in a historically approved subdivision. These exemptions are not recommended for any municipalities within the Upper Thames River watershed as it removes third party oversight and places more burden on our municipal partners.

Once again, we thank the Province for the opportunity to provide comments on the “Proposed updates to the regulation of development for the protection of people and property from natural hazards in Ontario.” We look forward to ongoing dialogue with the Province as they move forward with the enactment of a new S. 28 regulation.
Sincerely,