New regulation to focus municipal environmental assessment requirements

Modernizing Environmental Assessment for Municipal Infrastructure

Ontario is proposing sensible, practical changes that would maintain appropriate environmental oversight while reducing delays on municipal infrastructure projects. We are proposing a new environmental assessment regulation for municipal infrastructure that puts the focus on certain water, shoreline and sewage system projects. This approach will help us eliminate unnecessary burden on lower-impact projects and reduce duplicative requirements to support Ontario’s rapidly growing population.

The ministry amended the Class Environmental Assessment (EA) for municipal infrastructure projects (see Background section below for more information) to increase the efficiency of the Class EA process. Continued action is needed, and so we are now proposing to revoke the Municipal Class EA (MCEA) and make a streamlined EA regulation which would provide a clearer, more predictable process for higher-risk projects than can be achieved through the current municipal Class EA framework.

Preliminary consultation on evaluating EA Act requirements for municipal infrastructure projects was completed in Spring 2023. There was strong support from the municipal and housing sectors for maintaining an EA process for higher-risk municipal projects while continuing to improve the process.

Proposed Municipal Project Assessment Process Regulation

We are now proposing to focus Environmental Assessment Act (EA Act) requirements for municipal infrastructure projects on more complex water, sewage, and shoreline/in-water works projects led by municipalities.

The proposal includes two key components:

• The Project List that describes the municipal infrastructure project types subject to the process (to be designated as Part II.4 projects under the EA Act).
• The Municipal Project Assessment Process (MPAP) that sets out requirements for consultation, consideration of alternative designs, impact assessment studies, documentation and notification.

The Municipal Class EA (MCEA) and Private Sector Developers Regulation (O. Reg. 345/93) are proposed to be revoked.

Note that this proposal is specific to municipal infrastructure projects that have been subject to the MCEA process. We are not proposing to change which projects would require a Comprehensive EA. The proposed move to a project list approach (ERO posting 019-4219) remains under review at the time of this notice.

Streamlined Project List – Proposed projects subject to the new Regulation

We are proposing that certain water, sewage, and shoreline/in-water infrastructure projects undertaken by municipalities be subject to the EA Act.

Examples of these project types include:

Drinking water facilities

• constructing a new water system including a new well
• establishing a new surface water source
• constructing a new water treatment plant or expanding facility beyond existing rated capacity

Sewage treatment facilities

• constructing a new sewage treatment plant that processes over 50,000 litres of sewage per day
• expanding an existing sewage treatment plant by 25% or more of existing rated capacity, establishing new lagoons, or expanding lagoons beyond existing rated capacity

Stormwater management systems

• constructing or modifying retention/detention facilities for stormwater control where active treatment (chemical/biological) is required

Shoreline/In-water works

• constructing a new dam in a watercourse
• constructing new shoreline works such as offshore breakwaters, groynes (a shore protection structure) or seawalls

For further details on the projects proposed to be subject to the regulation, see the attached Summary of Proposed Requirements in the supporting materials section of this notice.

Proposed projects not to be subject to the new Regulation

Other projects which are currently subject to the MCEA and not listed in the proposed regulation would no longer have EA Act requirements. This would include:

• all projects that are currently subject to Schedule B of the MCEA (2023), including constructing a new pumping station; a new, expansion or replacement of water intake pipe for a surface water source; or, expanding a sewage treatment plant, including relocation or replacement of outfall to receiving water body, up to existing rated capacity where new land acquisition is required;
• certain smaller sewage treatment plant expansions which are currently subject to Schedule C of the MCEA (e.g. expansions to existing facilities less than 25% of existing rated capacity and all new facilities under 50,000 litres per day);
• all municipal roads or new parking lots in any location, reconstruction of any bridges with or without cultural heritage value, all water crossings;
• all private sector infrastructure projects for residents of a municipality regardless of size, including a new sewage treatment plant of any size;
• the municipal projects that are currently exempt through the Class EA or by Section 15.3 (4) of the EA Act (Bill 108) and those proposed to be exempted under the Comprehensive Project List (CPL) regulation proposal, are not proposed to be made subject to the streamlined EA process under this proposed regulation;
• transit projects in the CPL regulation proposal (ERO posting 019-4219) would be subject to the process articulated in that proposal, rather than this proposal

Depending on the project and location, there may be other legislative, regulatory and/or municipal requirements outside of the EA Act. Any applicable permit or approval would still be required. Municipalities will continue to consult on official plans. Municipalities may continue to carry out master servicing planning under their own processes to assess planned municipal infrastructure.

Proposed Assessment Process

An overview of the proposed process to carry out an EA for municipal infrastructure is described below.

The proposed process is based on the regulatory process Transit Project Assessment Process established in 2008 for transit projects.

Before starting the regulated process, which is time-limited, the proponent will be encouraged to initiate work (e.g. pre-consultation for early identification of potential issues and seasonal studies).

Steps in the proposed assessment process:

1. Proponent distributes Notice of Commencement (starts the 6-month timeline)
2. Proponent consults with Indigenous communities, interested persons, and the public for input on the project, evaluates the environmental effects and mitigative measures, identifies the preferred design, and documents the assessment process in an Environmental Project Report (up to 120 days).
   • If the proponent determines that more time is required to address outstanding concerns about a project, they can pause the assessment process for up to 30 days by following the steps outlined in the Summary of Proposed Requirements. A pause may occur more than once, but the total of all pauses cannot exceed 30 days.
3. Proponent publishes a Notice of Completion of the Environmental Project Report (within 120 days of the Notice of Commencement, plus any time outs, to a maximum of 150 days)
4. Proponent provides the Environmental Project Report for review by Indigenous communities, interested persons and the public (30 days).
   • Requests for a Minister’s order may be submitted where there are outstanding concerns that a project may adversely impact constitutionally protected Aboriginal and/or treaty rights. (See more details on Minister’s order request process below)
5. After the review period, whether there is a request for a Minister’s order or not, the Minister may act, on their own initiative (35 days), and take one of the following steps:
   • a. issue a notice to proceed with the project as planned
   • b. impose additional requirements (e.g. require further study or consultation), or
   • c. require preparation of a Comprehensive EA

If the Minister does not act within the 35 days, and there are no requests for a Minister’s order, the project may proceed as planned under the original Environmental Project Report.

For more details about the proposed assessment process, refer to the attached draft Summary of Proposed Requirements in the supporting materials section of this notice.

Request for Minister’s Order for municipal infrastructure projects

Section 17.31 of the EA Act permits requests for a Minister’s Order only on the grounds that an order will prevent, mitigate or remedy any adverse impact of the project on constitutionally protected Aboriginal or treaty rights. If such a request is made, the project cannot proceed until the Minister has made a decision.

Concerns related to grounds other than potential adverse impacts to constitutionally protected Aboriginal or treaty rights should be directed to the proponent and will not be considered when reviewing a Minister’s Order request.

Ancillary components to municipal infrastructure projects

Ancillary components are additional activities necessary to the primary activities of the project. Proponents must consider ancillary components as part of their project assessment unless those activities (components) are otherwise exempt from the EA Act. For example:

• if the project is an expansion of an existing drinking water treatment facility beyond existing rated capacity, ancillary components may include construction of other facilities like settling tanks or utility corridors;
• projects to expand an existing sewage treatment facility by 25% or more of existing rated capacity may require ancillary settling tanks, buildings or utility corridors;
• projects for the construction of a new stormwater management system may require ancillary roadside ditches or modifications to existing outfalls or infiltration systems.

Where an ancillary component and primary activity are subject to different EA processes, the proponent would not be required to follow two EA processes; rather the proponent would be required to complete the EA process applicable to the primary activity (project).

Projects that are subject to a Comprehensive EA may include an ancillary component that is a designated MPAP project. The proponent will be required to complete the assessment of the ancillary component as part of the Comprehensive EA rather than separately assessing it under the proposed MPAP process. Likewise, if an ancillary activity of an MPAP project is subject to Comprehensive EA, the proponent will be required to complete the assessment as part of the Comprehensive EA.

Guidance on the proposed assessment process

Proponents will be provided with guidance to assist their implementation of the new process with respect to:

• the pre-notification stage (e.g. determining whether a project is subject to MPAP, pre-consultation, and best practices)
• consultation with Indigenous communities including outreach to communities
• consultation with regulatory agencies (e.g. which agencies may be relevant to a project, information needs and when to consult with them)
• types of studies that may be needed to support the assessment of a public municipal infrastructure project (i.e. water, sewage, and shoreline/in-water works)
• addendum process for significant changes to a project
• compliance and monitoring
• termination and re-start of a project
• review of a project that has not commenced within 10 year

Additional changes required to ensure a smooth transition to the proposed MPAP

Should the MPAP Regulation be made, the MCEA and Private Sector Developers Regulation (O. Reg. 345/93) would be revoked. Other regulations under the EA Act that may be made as part of the CPL regulation proposal would be amended as necessary.

The Private Sector Developers Regulation (O. Reg. 345/93) currently designates private sector projects that are for residents of a municipality and that are listed in Schedule C of the MCEA. This regulation is proposed to be revoked, as the ministry is proposing to focus EA Act requirements only on infrastructure projects led by a municipality.

The proposed Regulation would provide for a transition period for projects that are undergoing the MCEA process. The transition provisions would provide that projects that:

• are not on the MPAP Project List may complete the MCEA process or withdraw from the process if notification requirements are met (the result would be that no EA Act requirements would apply). Furthermore, if such projects have a Section 16 Order request(s) prior to the proposed Regulation coming into effect, these will continue to be considered by the Minister and may not proceed until a decision has been made.
• are on the MPAP Project List would be able to complete the EA Act requirements either under the MCEA process or the MPAP

Complementary amendments – regulations made under legislation other than Environmental Assessment Act

We are proposing to make complementary amendments to some regulations made under statutes other than the EA Act that refer to the EA regulations proposed to be revoked, or to the provisions of the EA Act that have been revised.

Municipal infrastructure projects to remain subject to EA processes

Municipalities undertake a wide range of projects which are not a part of this proposal and will continue to be subject to other processes under the EA Act. For example, the planning of freeways by the Ministry of Transportation (MTO) and expressway projects by municipalities currently requires a Comprehensive EA. As part of the revised CPL regulation proposal, municipal expressways are proposed to be subject to the Class EA for Provincial Transportation Facilities. In addition, certain other projects by municipalities including waste, transit, electricity and waterfront projects have other existing and proposed EA Act requirements, and this proposal does not change those unless otherwise noted. See the revised CPL regulation proposal (ERO posting 019-4219).

Background

What is the Municipal Class EA (MCEA)? [MCEA 2023]

The MCEA sets out a streamlined EA planning process for certain municipal infrastructure projects including certain roads, water and sewage infrastructure (e.g. collector or local roads, drinking water and sewage treatment facilities, stormwater management systems, bridges and other linear, non-vehicle infrastructure). These projects are categorized in schedules based on their complexity or potential for environmental impacts. Each schedule sets out different assessment and consultation requirements. Schedule A/A+ projects are exempt.

What is a Part II.4 Project?

Part II.4 is the new Part of the EA Act that will apply to streamlined EA projects such as those proposed to be designated under the MPAP. Projects designated as Part II.4 projects will be required to undertake a streamlined EA process set out in regulation. The sections in Part II.4 of the EA Act also apply to these projects, including the authority for the Minister to make orders respecting Part II.4 projects.

Related past actions for modernizing EA Act requirements for municipal infrastructure projects

MCEA amendments

In March 2023, the minister approved amendments to the MCEA. [Notice of amendment: Municipal Class Environmental Assessment]

Other current EA modernization initiatives:

Comprehensive Project List (CPL) Regulation

The ministry has consulted on a proposed CPL regulation, which would outline which projects would be subject to a Comprehensive EA, some of which may be undertaken by municipalities (such as certain landfills or waterfront projects for example). See ERO posting 019-4219. This proposal remains under review; but the current proposed regulation for municipal infrastructure is based on the assumption that the CPL regulation has been made and the relevant provisions in the EA Act have been proclaimed. If both regulations are made, it would mean for municipalities that the only municipal projects that will be subject to the EA will be those in the CPL regulation, MPAP regulation or municipal expressways (if the proposal to add expressways to the Class EA for Provincial Transportation Facilities is implemented).