Further changes coming to the Conservation Authorities Act

The Ontario government announced a new round of changes to the Conservation Authorities Act, R.S.O. 1990, c. C.27 (the “Act”) and regulations in two Environmental Registry postings on Friday, April 5, 2019:

• Modernizing conservation authority operations – Conservation Authorities Act https://ero.ontario.ca/notice/013-5018
• Focusing conservation authority development permits on the protection of people and property https://ero.ontario.ca/notice/013-4992

The first proposes changes to the Act and the second proposes changes to the regulatory scheme that governs how conservation authorities permit development and other activities.

The Act was most recently amended by Schedule 4 of the Building Better Communities and Conserving Watersheds Act, 2017 (“Bill 139”) on December 12, 2017; however, the majority of those changes have yet to be proclaimed into force.

Arguably, these newly proposed changes, which are aimed at making the permitting process faster, more predictable and less costly, are in furtherance of the amendments made by Bill 139. They are also likely to be welcomed by anyone who has had the experience of trying to secure CA permit.

Conservation Authorities

Conservation authorities (“CAs”) are “corporate bodies” with jurisdiction within the geographic region of a watershed. They are governed by a Board of Directors appointed by the municipalities with political boundaries within the watershed. There are currently 36 CAs in Ontario.

Section 20 of the Act establishes that the objects of a CA is “to provide, in the area over which it has jurisdiction, programs and services designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals.” The primary focus of CAs has been on the prevention and management of natural hazards like flood and erosion control.

Roles and Regulatory Powers

The roles and powers of conservation authorities are complex but are well summarized in the May 2010 provincially approved Policy Document: Policies and Procedures for Conservation Authority Plan Review and Permitting Activities (available here). As laid out on page 2 – 4 of that document, among the various roles of conservation authorities are:

• Authority to prohibit, permit or regulate changing/interference with the channel of a river, creek, stream or watercourse, or with a wetland, whether on public or private property;
• Authority to prohibit, permit or regulate a development on public or private property that is in or is adjacent to a watercourse, wetlands, shorelines and other hazard lands; 
• To review and comment on municipal land use planning instruments (Official Plans and Zoning By-laws) and development applications under the Planning Act, R.S.O. 1990, c. P.13.
• Natural resource conservation and management, including, for example, programs like flood management projects, drinking water source protection plans (under the Clean Water Act, 2006, S.O. 2006, c. 22), natural heritage system studies, fisheries management plans, and forest plans.
• Conservation Authorities also own and manage over 146,000 hectares of property in the province comprised of wetlands, forests, moraines, lakes, rivers, streams, species at risk habitat, etc.
• Conservation Authorities may also provide technical advisory services with respect to environmental management issues to municipalities under individual service agreements.  

Bill 139 Amendments (December 12, 2017)

Bill 139 made various amendments to the Act, which included: a new purpose section; the ability to amalgamate or expand the geographic jurisdiction of a CA; membership and governance changes; rules regarding fees charged to municipalities; modifications to the offence and enforcement provisions; and changes to the permitting regime.

From the perspective of a regulated land owner, Bill 139’s changes with respect to the permitting regime may have appeared to be the most significant.

Prior to the Bill 139 changes, section 28(1) enabled each conservation authority to enact regulations to prohibit a variety of activities in “Regulated Areas”[1] unless the proponent had a permit issued by that CA.  Each individual CA’s regulation was required to comply with O. Reg. 97/04, Development, Interference with Wetlands and Alteration to Shorelines and Watercourses (often referred to as the “generic regulation”), which established this permitting regime. 

This permitting regime had been the subject of significant litigation, with a Court of Appeal decision in Gilmor v. Nottawasaga Valley Conservation Authority, 2017 ONCA 414, confirming that development in Regulated Areas is prohibited unless the CA exercises its discretionary power to issue a permit.

Bill 139 took the prohibition/permitting regime for Regulated Areas from the regulations and elevated it directly in to section 28 of the Act. The result is that while Bill 139 appeared on its face to dramatically amend the Act, on it is own actually change very little about the permitting regime. If there were to be big changes, these were always likely to come in the form of new regulations.

Current Consultation on new Proposed Changes

As is typical with Registry Postings, the proposed amendments themselves have not been posted, but the summaries provide some details of the proposed changes.

Proposed Changes to the Act

With respect to the proposed changes to the Act, the notice indicates that the proposed amendments are intended to:

• Establish that the core mandate of CAs is natural hazard protection and management, conservation and management of conservation authority lands, drinking water source protection, and protection of the Lake Simcoe watershed.
• Increase transparency in how municipalities are charged for CA programs and services.
• Establish a process and timeline for CAs and municipalities to enter into agreements for the delivery of non-mandatory programs and services.
• Create a power for the province to appoint an investigator to audit a CA. 
• Clarify that the duty of CA board members is to act in the best interest of the CA.

Proposed Changes to the Regulatory Regime

The notice indicates that the goal of the proposed changes to the regulatory regime is to “provide the business sector with a clear and consistent regulatory environment in which to operate” and “to make approval processes faster, more predictable and less costly”.

Currently each of the 36 CAs has its own regulation, although they all correspond to the Generic Regulation O. Reg. 97/04, as discussed above. The proposal is to replace these regulations with one regulation that further structures the discretion of CA to regulate development by:

• Defining (or better defining) key regulatory terms, including: “wetland”, “watercourse”, “pollution” “interference” and “conservation of land”.
• Reducing regulatory restrictions on development within 30m to 120m of a wetland.
• Exempting low-risk development activities from requiring a permit.
• Requiring CAs to have publicly available policies that guide permitting decisions.
• Requiring CAs to provide public notice of new Regulated Areas mapping/designations.
• Requiring CAs to establish, monitor and report on service delivery standards including timelines for permit decisions.

Conclusion

While we’ll need to see the details of the regulatory changes to fully evaluate their effect, these proposed regulatory changes will likely be welcome to owners of land in Regulated Areas.  

A common complaint of land owners is that unbeknownst to them, their lands were deemed to be within a Regulated Area (typically a wetland or floodplain), and any further development now requires a CA permit. This permitting requirement is often discovered when the landowner approaches the municipality for a building permit under the Building Code. What they discover is that while the requirements for a building permit under the Building Code are general clear, it is often very difficult, expensive and time-consuming to determine what the requirements are for a CA permit and whether they can be met. 

If done well, the proposal to provide clearer definitions of Regulated Areas, require notice when Regulated Area mapping changes, and mandating that CAs have publicly available permitting policies should go a long way towards making CA decisions clearer, more consistent and more timely.  

Public consultation on the prosed amendments will be open until May 20, 2019.

[1] “Regulated areas” means “shorelines”, “rivers or stream valleys” and “other areas” as defined in the regulations (s.2(1)), and “hazard lands” and wetlands” as defined in the Act (s. 28(25)).