Drainage Act Regulatory Proposal

OMAFRA considered all the feedback received during the commenting period for the posting.  A total of 31 comments were submitted from a range of interested parties including conservation authorities, municipalities, the drainage industry, farm organizations, environmental organizations, individuals and one Indigenous organization.  OMAFRA also considered feedback from the 2020 legislative posting which had implications for the implementation of the Drainage Act amendments.

Based on the feedback, the regulatory proposal has been modified from the proposal posted on the Environmental Registry.  These changes have been reflected in the new Minister’s Regulation. 

Minor Improvement Process

Many of the comments reflected concerns that the new minor improvement process would allow a broad range of projects to proceed with reduced environmental oversight. 

The intent of the process is to support only low risk projects that meet certain pre-established criteria.  To reinforce this intent, additional criteria and project requirements are included in the Minister's Regulation, such as prohibiting minor improvement projects that are in wetlands or that involve drainage enclosures.  Projects in wetlands and drainage enclosures will have to go through the existing approval process set out in section 78 of the Drainage Act.  Eligible projects will also have to demonstrate that the project does not change the existing drainage capacity or erosion potential.  In addition, all existing environmental protections and approvals under other provincial and federal legislation will be maintained.

Concerns were raised about the industry capacity for drainage engineers to meet the proposed 90-day timeline for the completion of the engineer’s report for a minor improvement project.  Based on this feedback, the timeline for the engineer’s report has been increased to 180 days in the Minister’s Regulation. There were also some concerns with the lack of appeals or public consultation for minor improvement projects.  There is limited consultation for minor improvements since, based on the criteria, eligible projects must not have impacts beyond the property of the initiating property owner.

Feedback also included whether adjacent properties that are owned by related individuals (e.g. spouses, siblings, parent/child) could be eligible for a minor improvement project.  This has been included in the list of criteria for eligible minor improvement projects set out in the Minister’s Regulation. 

Process to Update an Engineer’s Report

Comments were supportive of the proposed process for updating the engineer’s report.  Some raised concerns with one of the proposed criteria that would require any design changes to not exceed 10% of the total project costs.  Respondents suggested this number is too low which could limit the number of qualifying projects.  It was recommended that any extra costs to the project resulting from the design changes be increased to 33%.  The Ministers’ Regulation uses the 33% figure.

Incorporation of the DART Protocol

The proposal posted on the Registry set out that the DART Protocol would be referentially incorporated into the Minister’s Regulation.  Some municipalities commented that this would increase, as opposed to decrease burdens for them.

As a result, the Minister’s Regulation does not referentially incorporate the DART Protocol.

Other comments asked for the DART Team to be reconvened and the DART Protocol to be updated.   The DART Team will be reconvened so the DART Protocol can be updated for future consideration of incorporation by reference.  Municipalities who want to use the DART Protocol continue to have the ability to do so. 

Prescribed Persons

The feedback supported the proposal to move the list of prescribed persons to the Minister’s Regulation.  The Ministry of Environment, Conservation and Parks requested that Ontario Parks be included in the list of prescribed persons.  This has been included if any of its lands will be drained by the drainage works.  To address feedback from Indigenous Communities, the Minister’s Regulation also clarifies that the Council of the Band of each Reserve that may be drained by the drainage works is a prescribed person for proper notification.