Recent Amendments to the Conservation Authorities Act and Regulations

  • October 25, 2024
  • Kristi M. Ross, partner, Aird and Berlis LLP

1.0 Introduction[1]

Conservation authorities regulate development and other activities through a permitting process under the Conservation Authorities Act for the purposes of natural hazard management and to protect people and property from natural hazards, such as flooding and erosion. Each conservation authority implements the permitting framework based on provincial legislation, regulatory requirements, and technical standards, as well as conservation authority board-approved policies that outline how the conservation authority administers regulations locally.

On April 1, 2024, significant amendments to the Conservation Authorities Act (the “CA Act”) and a new regulation under the Act, came into effect. This new regulation, Ontario Regulation 41/24: Prohibited Activities, Exemptions and Permits, ( “O. Reg. 41/24”), revoked and replaced the 36 individual regulations that governed Conservation Authorities. The new regulation governs prohibited activities, exemptions and permits under the CA Act. It has simultaneously expanded and reduced the jurisdiction of Conservation Authorities while enhancing the powers of the Minister of Natural Resources and Forestry (the “Minister”) under the CA Act.

These changes are the latest in a series of amendments to the enable legislation of Conservation Authorities. Initially introduced under Bill 139: the Building Better Communities and Conserving Watersheds Act and under Bill 23: the More Homes Built Faster Act, 2022[4] (“Bill 23”), which received Royal Assent in November of 2022, the Amendments form part of the Province’s strategy to simplify the development approvals process in an attempt to, in part, encourage construction of more housing. The Province’s stated objective in making the legislative and regulation changes under the CA Act are to support faster and less costly approvals, streamline conservation authority processes and help make conservation land available for housing.

2.0 Key Changes to Definitions

The new minister’s regulation provides technical details of where certain development activities are prohibited (e.g., the CA Act includes prohibitions against carrying on development activities within rivers and stream valleys, the limits of which are determined in accordance with the regulations). Some definitions and technical descriptions are updated while some regulated areas are maintained as previously described, including river and stream valley limits and areas that are adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to inland lakes.[2]

The three most important changes to the definitions in the regulation and CA Act are:

  • Watercourse definition now requires a defined channel with a bed and banks.
  • Removal of the definition of pollution.
  • The regulated area adjacent to all wetlands was reduced to 30 meters from
    120 meters for provincially significant wetlands.

Each of these are outlined in greater detail below:

2.1 Removal of Pollution and Conservation of Land Tests from the Regulation

The new regulation has removed the definition of “pollution” from the CA Act which was previously considered “any deleterious physical substance or other contaminant that has potential to be generated by development”.[3]

The regulation no longer includes pollution and conservation of land tests, which previously considered water quality and ecological issues, when granting a permit by a Conservation Authority. Many permits considered these two tests as part of the review for natural hazards. Conservation Authorities will be able to continue to evaluate impacts on wetlands and watercourses for natural hazards.

2.2 New Definition of a Watercourse

The changes to the CA Act has updated the definition of “Watercourse” and moved it to the regulation. The definition of “Watercourse” has been updated from “an identifiable depression in the ground in which a flow of water regularly or continuously occurs”[4] to a “defined channel, having a bed and banks or sides, in which a flow of water regularly or continuously occurs”.[5] This change narrows the definition of a watercourse and as a result, clarifies which drainage features need to be regulated as such.

Smaller watercourses may no longer be regulated due to changes in the definition, but each will be assessed on a case-by-case basis. Some headwater streams and drainage features will still be protected by other policies, such as those for floodplains or wetlands. Additionally, there are protections for watercourses in municipal planning processes.

2.3 Reduced Regulation of Adjacent Lands to Provincially Significant Wetlands

The regulated area adjacent to Provincially Significant Wetlands, and wetlands greater than 2 hectares in size, have been reduced from 120 meters to 30 meters. This change limits Conservation Authorities’ ability to review and mitigate development impacts beyond
30 meters. It is important to note that this change does not result in any loss of wetlands. Some lands beyond 30 meters will continue to be regulated due to nearby features like ravines, watercourses, and floodplains. Development between 30 meters and 120 meters of a wetland was previously allowed under certain criteria.

This change in operationalized in the new regulations through a definition for “other areas” in which the prohibitions on development activities apply have been changed to within
30 metres of all wetlands.

The new permitting framework keeps the existing CA Act definitions for “wetland”, “hazardous land”, and “development activity”[6] (formerly referred to as “development”).

3. 0 Exempting Low-Risk Activities from Conservation Authority Approval

Some low-risk development activities are exempted from the prohibitions (under certain conditions, such as occurring outside of wetlands and watercourses, or following certain best practices for municipal drain maintenance) and no longer require a conservation authority permit, including:

  • A seasonal or floating dock 10 square metres in size or less;
  • A rail, chain-link or panelled fence with a minimum of 75 millimetres of width between panels;
  • Agricultural in-field erosion control structures;
  • A non-habitable accessory building or structure 15 square metres in size or less;
  • An unenclosed detached deck or patio that is 15 square metres in size or less;
  • Installation, maintenance, or repair of tile drains;
  • Installation, maintenance, or repair of a pond for watering livestock;
  • Maintenance or repair of a driveway or private lane;
  • Maintenance or repair of municipal drains; and
  • Reconstruction of a garage that does not exceed the same footprint, with no basement or habitable space and that does not allow for change in potential use of the building or structure to habitable space.[7]

4.0 New Powers for the Minister

Recently proclaimed provisions in the Conservation Authorities Act and associated regulations include new powers for the Minister to:

  • issue an order to prevent a conservation authority from issuing a permit and to take over the permitting process in the place of a conservation authority, and
  • review a conservation authority permit decision at the request of the applicant.

4.1 Minister’s Permit Application Powers

The new regulation grants powers to the Minister to make decisions regarding the permit application process. The Minister may now direct an authority to not issue a permit to an applicant or direct an authority to not issue a permit for a specified period of time.[8] These orders can be made before or after a permit application has been made to the Conservation Authority, even if the decision is pending. These orders can be related to specified activities or classes of activities, and an order to not issue permits can be made even if those activities would otherwise be permissible under existing regulations.

Additionally, the Minister can now issue permits for any activity without the review of the authority.[9] However, before the Minister issues a permit, they must still consider the same criteria as authorities which concern natural hazards and public safety. The Minister can also issue a permit with conditions as they consider appropriate.[10]

4.2 Minister’s Ability to Review a Conservation Authority Permit Decision

If an applicant’s application for a permit has been refused by the authority or the applicant objects to the conditions placed on the permit, they may submit a request to the Minister for a review of the decision within 15 days.[11] The Minister must reply to the request to review within 30 days and indicate to the authority and the applicant whether they will review the decision. If the Minister fails to review the request within the 30 day period, it is deemed to be an indication that the Minister does not intend to review the authority’s decision.[12] Lastly, all Minister decisions with respect to an application for a permit are final and cannot be reviewed further or appealed to the Ontario Land Tribunal.[13]

4.3 Minister’s Power to make Regulations on Public Use of Authority’s Lands

Prior to the new regulation, each authority had the ability to make regulations applicable to lands owned by the authority regarding public use.[14] The new regulation has revoked these powers from CAs and placed them in the hands of the Minister. The Minister can now make regulations on lands owned by the authorities with respect to regulating public use of lands; prescribing terms and conditions for animal allowance on lands; prescribing fees for the occupation and use of lands; and regulating and governing vehicular and pedestrian traffic.[15]

4.4 Proposed New Regulations Re: Minister’s New Permit and Review Powers

On April 5, 2024, the Ministry of Natural Resources and Forestry proposed a new regulation which would detail the Minister’s new permit and review powers under the Act. The proposed regulation would set out the circumstances of where and how the Minister can use his or her powers. For example, a petition to the Minister would need to include why the Minister’s involvement is being requested and whether the municipality has endorsed the project and the Minister’s involvement.[16]

Additionally, it proposes that the Minister can only review an authority’s decision or prevent an authority from a permitting decision and take over the process if the development activity falls within a specific area such as housing, transportation and community services.[17] The proposed changes will aid in streamlining the development process by ensuring that applicants pursue the appropriate channels to address their permit application or any potential reviews.

The regulatory proposal covers the two new powers granted to the Minister: (a) permits issued by the Minister and b) permits reviewed by the Minister.

a)   Permits Issued By The Minister

Requirements under the Conservation Authorities Act regarding permits issued by the Minister under section 28.1.1 include:

  • The Minister may issue an order directing a conservation authority not to issue a permit to a specific individual to engage in a specified activity, or to persons who may wish to engage in a certain type or class of activity, that would be prohibited under section 28 without a permit.
  • The Minister’s decision to issue an order is discretionary, and it may be issued either before or after an application for a permit has been submitted to the relevant conservation authority.
  • Notice of any order must be provided to affected conservation authorities, any person who applied for the permit in question prior to the order and be posted on the Environmental Registry of Ontario (ERO) within 30-days.
  • If an order made, the Minister has the power to issue a permit in place of the conservation authority. When making a permitting decision, the Minister is required to satisfy the same criteria concerning natural hazards and public safety that are considered by conservation authorities. This includes whether the activity is likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock. It also must consider whether the activity is likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property.

The Minister may refuse the permit or issue a permit subject to such conditions as the Minister determines are appropriate.

Proposed additional requirements that would be set out in the proposed regulation include:

If a proponent wishes to petition the Minister to issue an order, the proponent must submit a request to the Minister that would include information on:

b)   Permits Reviewed By The Minister

Requirements under the Conservation Authorities Act relating to requests for review under section 28.1.2 regarding permits where there is an order made by the Minister of Municipal Affairs and Housing under section 34.1 or 47 of the Planning Act and section 28.1 regarding all other conservation authority permits include:

Proposed additional requirements that would be set out in regulation include:

We note that this new regulation has yet to be proclaimed.

5.0 Changes to the Permitting System

5.1 Reduction in Prohibited Activities Requiring Permits

Prohibited activities requiring a permit no longer refer to the “conservation of land” or “pollution,”[18] and prohibited activities are now limited to[19]:

1.    Activities to straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse or to change or interfere in any way with a wetland.

2.    Development activities in areas that are within the authority’s area of jurisdiction and are:

i.     hazardous lands,

ii.    wetlands,

iii.  river or stream valleys the limits of which shall be determined in accordance with the regulations,

iv.   areas that are adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to an inland lake and that may be affected by flooding, erosion or dynamic beach hazards, such areas to be further determined or specified in accordance with the regulations, or

v.    other areas in which development should be prohibited or regulated, as may be determined by the regulations.

Thus, a Conservation Authority may grant permit approval for prohibited activities if the activity is not likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock or create conditions that may jeopardize public health and safety or destruction of private property in the event of a natural disaster.[20]  O. Reg. 41/24 sets clear boundaries on the conditions Authorities can attach to permits to ensure that such conditions imposed are necessary and proportionate to the potential impacts of the permitted activity.

5.1 Procedure for Permits

The new regulation implements a streamlined process for permit applications and if required, the ability for review and appeal (as noted above in section 4). Prior to submitting a permit application, the applicant can take part in a pre-consultation process with an authority for the purposes of confirming all permit application requirements. The pre-consultation process can include requests by the Conservation Authority to the applicant for initial information on the proposed activity and further details about the property where the activity will be taking place (i.e. copies of plans, maps or surveys).[21] If the applicant requests a pre-submission consultation, the Conservation Authority is required to engage in the process.[22]

Permit applications have several requirements which include, but are not limited to: plans (i.e. site plans, cross sections, etc.); proposed use or statement of purpose; start and completion dates; descriptions of the methods used to carry out the activity; elevation and grading plans; drainage details; description of fill proposed to be placed or dumped; confirmation of landowner’s authorization; and any other technical information, like studies and plans, that the Conservation Authority requests.[23] The Conservation Authority must confirm if the application is complete within 21 days, in writing.[24] Once the application is confirmed to be complete, the Conservation Authority can no longer request additional studies, technical information and plans from the applicant unless the applicant approves.[25] However, the Authority may ask for clarification on any application materials.[26]

5.2 Permit Review and Appeal Process

As noted above, applicants are entitled to a review process. The applicant may request a review by the Conservation Authority if they have:

The review must take place no later than 30 days after it is requested and the authority must either confirm the application is complete, provide reasons for why it is incomplete or provide reasons for why the request for further information, studies is plans is unreasonable or withdraw the request.[28]

If the authority fails to produce a decision within the 30-day period, an applicant may directly appeal to the Ontario Land Tribunal. The Tribunal has the authority to dismiss appeals, adjust the fees charged by the authority, eliminate fees altogether or order that no fee by charged.[29]

5.3 Limiting the Conditions a Conservation Authority May Attach to a Permit

In cases where an activity would otherwise be prohibited by the Conservation Authorities Act, a conservation authority may issue a permit and may choose to attach conditions to that permit.

The new regulation limits the conditions conservation authorities may place on permits to only those that would assist in mitigating any effects on the control natural hazards or any public safety risks due to natural hazards, along with conditions to support the administration or implementation of the permit (such as conditions related to reporting or compliance).[30]

5.4 New Requirements for Conservation Authorities

The new regulation has introduced new rules to ensure that conservation authority permits are administered in a transparent and consistent manner.

5.4.1 Requirement for Mapping

Conservation authorities are now required to develop maps depicting areas within the authority’s jurisdiction.[31] These maps need to be updated annually and made publicly available on the authority’s website.[32] Where new information or analysis requires a significant update to where development activities are prohibited, the authority must ensure stakeholders, municipalities and the public are notified of the proposed changes including making any relevant information available online at least 30 days prior to an authority meeting where the proposed changes are on the agenda.[33]

5.4.2 Requirement for Policies and Procedures

Each authority is required to develop policies and procedures with respect to permit applications which at a minimum must include, amongst other things, details of the pre-submission consultation process and any additional details needed to complete permit applications requirements; procedures for the review process; standard timelines for the authority to make a decision on a permit application; and a process for periodic review and updating of the authority’s policy and procedure documents.[34]

6.0 New Conservation Authority Powers

Authorities now have increased powers to manage breaches of the new regulation. Authorities can appoint officers who can issue a Stop Work Order.[35] To issue a Stop Work Order, the officer must find reasonable grounds for contravention; the person has or will engage in activity that will contravene the Act, regulations or conditions of the permit; the activity has or is likely to cause significant damage and the Stop Work Order will prevent or reduce the potential damage.[36] The order must include a description of the damage being caused or likely to be caused with the activity, the nature of the contravention and its location.[37] Additionally, fines have increased for regulatory breaches. Fines for individuals may be as high as $50,000 and $1,000,000 for corporations for any Stop Work Order issued.[38]

7.0 Intersection with the Lake Simcoe Protection Plan

The Lake Simcoe Region Conservation Authority has the additional regulatory responsibility to apply applicable policies (e.g., to protect the health of Lake Simcoe by regulating development around shorelines and wetlands in the Lake Simcoe watershed) under the Lake Simcoe Protection Plan in its permit decisions. The new conservation authority permitting framework supports Lake Simcoe Region Conservation Authority’s (LSRCA) role in implementing the Lake Simcoe Protection Plan under the Lake Simcoe Protection Act, 2008 by requiring permit decisions by the Lake Simcoe Region Conservation Authority to conform with or have regard to relevant policies in the Lake Simcoe Protection Plan and enabling the LSRCA to attach conditions to a permit related to applicable policies.

8.0 Conclusions

The changes to the CA Act and the new regulations grant developers new mechanisms to appeal conservation authority permitting decisions, including asking the Minister to review them.  The changes also enable the Minister to issue a permit without conservation authority review.  However, the new CA Act regulations don’t clearly define when and how the Minister could use their new powers of review, and this is resulting in some uncertainty in the regulated community. Further, it is possible that the Minister could face numerous requests to exercise these powers before the required staff and expertise can be put in place. This could result in delays in responding to some of these requests.

Some of these issues will be resolved by the proposed new regulation that the government consulted on starting April 5, 2024; however, the content of this regulation has yet to be finalized and the regulation has not yet been proclaimed.

 

[1] This is a shortened version of an Article that prepared for the Law Society of Ontario’s 8-Minute Environmental Lawyer, September 16, 2034. Research for this article was conducted by Zöe Walwyn, Articling Student, Aird and Berlis, LLP.

[3] See repealed CAA s.28(25)

[4] See repealed CAA s.28(25)

[5] Prohibited Activities, Exemptions and Permits, O Reg. 41/24, s.1(1) [O Reg. 42/24].

[6] “Development activity” is defined as: the construction, reconstruction, erection or placing of a building or structure of any kind; any changes to a building or structure that would alter its use, increase its size or the number of dwelling units; site grading; or the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere.

[7] Section 5, O. Reg 42/04.

[8] Conservation Authorities Act, R.S.O. 1990, c. C.27, s. 28.1.1 [CAA].

[9] CAA, s. 28.1.1(2).

[10]CAA 28.1.1(9)

[11]CAA 28.1(8)

[12]CAA 28.1(9)

[13]CAA 28.1.1(12)

[14]See repealed CAA, s.29(1)

[15]CAA, s.29(1)

[18]Repealed CAA s.28(1)(c)

[19] CA Act, s.28(1).

[20]CAA, s.28.1(1)

[21]O Reg. 41/24, s.6(1)

[22]O Reg. 41/24, s.6(2)

[23]O Reg. 41/24, s.7(1)

[24]O Reg. 41/24, s.7 (2)

[25]O Reg. 41/24, s.7(3)

[26]Ibid.

[27]O Reg. 41/24, s.8(1)

[28]O Reg. 41/24, s.8(2)

[29]CAA, s.21. 13-21

[31]O Reg. 41/24, s. 4(1)

[32]O Reg. 41/24, s.4(2)

[33]O Reg. 41/24, s.4(3)

[34]O Reg. 41/24, s.12

[35]CAA, s.30.4

[36]CAA, s.30.4(1)

[37]CAA, s.30.4(2)

[38]CAA, s.30.5(1)

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.

    • The Minister may make an order to prevent a conservation authority from making a permitting decision and take over the permitting process only if the development activity or type or class of permits pertains to or supports a specified provincial interest, including:
    • Housing (community, affordable and market-based)
    • Community services (health, long-term care, education, recreation socio-cultural, security and safety, environment)
    • Transportation infrastructure
    • Buildings that facilitate economic development or employment
    • Mixed use developments
    • Overview of proposed development.
    • Why the Minister’s involvement is requested (e.g., development of provincial interest, timing/urgency; permitting process to date if applicable; other barriers) and preferable to the standard process in the Conservation Authorities Act.
    • Indication of whether the local municipality has endorsed the project and the request for Minister’s involvement (e.g., by municipal letter or resolution).
    • Status of other required project approvals including the extent of any engagement with the conservation authority in the permitting process that the applicant has had to date.
    • An applicant who has been refused a permit or had conditions attached to a permit by a conservation authority to which the applicant objects can, within
      15 days of receiving reasons for the authority’s decision, submit a request to the Minister for the Minister to review the authority’s decision. Alternatively, an applicant also has the option to appeal the authority’s decision to the Ontario Land Tribunal.
    • After receiving a request, the Minister has 30 days in which to decide whether or not they intend to conduct a review. If the Minister decides to conduct the review. a notice shall be posted on the ERO within 30 days of a reply indicating the Minister intends to review the decision by the authority. If the Minister does not reply within 30 days of the request, this is deemed to indicate that the Minister does not intend to conduct a review.
    • After conducting a review, the Minister may confirm or vary the authority’s decision or make any decision that the Minister considers appropriate, including issuing the permit subject to conditions.
    • The Minister is required to base the decision on same criteria concerning natural hazards and public safety that are considered by conservation authorities. This includes whether the activity is likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock. It also must consider whether the activity is likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property.
    • The Minister may conduct a review of a conservation authority permit decision only if the development activity pertains to or supports a development of specified provincial interest, including:
    • Housing (community, affordable and market-based)
    • Community services (health, long-term care, education, recreation socio-cultural, security and safety, environment)
    • Transportation infrastructure
    • Buildings that facilitate economic development or employment
    • Mixed use developments
    1. not received a notice from the Conservation Authority within 21 days,
    2.  the applicant disagrees with the Conservation Authority’s conclusion that the permit application is incomplete, or
    3. the applicant is of the opinion that a request by the Conservation Authority for further information, studies or plans is not reasonable.[27]