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Things to consider: Site alteration activities on agricultural lands can be highly variable. Although an exception exists for a defined normal agricultural practice under Section 142 of the Municipal Act, 2001, activities deemed to be “normal farm practice” may still be subject to terms and conditions of a permit provided they do not restrict “normal farm practice”. This allows farmers access to soil for the purposes of agricultural operations, such as development or expansion of land and/or erosion control provided they comply with all regulatory requirements.

However, there have also been reports of agricultural lands receiving contaminated soils and/or commercial fill operations attempting to pass as “normal farm practice” to avoid regulation. For example, an operation may claim a site needs to be filled back to grade for agricultural purposes, when this is not always true.

Example:
Douglas Cox v. the Town of Mono
In 2014, the Town of Mono updated its Site Alteration By-law to require requests for exemptions. Cox had previously been receiving soil on a site he owned and earning $20 per load from Soilcan Incorporated. He applied for a by-law exemption under Section 6 of the Farming and Food Production Protection Act to use fill for normal farming practice, specifically filling in a ravine for sheep farming. However, the Board found the ravine area was able to sustain sheep without modification and that fill would cause loss in productivity and increase erosion.

Other NFPP Board hearings are summarized here.

Resources:
Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) has developed a fact sheet, Importation of Soil onto Agricultural Land, to:
  • Educate farmers about legal requirements, risks and liabilities;
  • Support environmentally sustainable practices for importation of soil onto agricultural lands;
  • Provide technical information and resources to help reduce concerns and conflicts related to soil imported onto agricultural lands; and
  • Provide information to assist OMAFRA field staff in communicating with farmers about mechanisms available to help protect soil and water resources.
Stay posted for more details on the fact sheet release date.

DEFINITIONS

Things to consider: Although the Farming and Food Production Protection Act (FFPPA) provides guidance on “normal farm practice”, the term is technically defined on a case by case basis through Normal Farm Practices Protection Board hearings. For this reason, municipalities should not define “normal farm practice” in by-laws. Instead, a by-law may define an “agricultural operation” based on the FFPPA, as follows:

“‘agricultural operation’ means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward;”1

For consistency purposes, municipalities may also consider Section 142 of the Municipal Act, 2001, that outlines by-law exemptions for “normal agricultural practice”. This clause would be included under Exemptions as shown below and requires defining “agricultural lands”.

“‘AGRICULTURAL LANDS’ includes all lands that are used by a farming business registered under the Farm Registration and Farm Organizations Funding Act, 1993, S.O. 1993, c.21, as amended, for growing of crops, including nursery and horticultural crops; raising livestock; raising of other animals for food, fur, fibre, including poultry and fish; aquaculture; apiaries; agro-forestry; maple syrup production;” 2

See the Definitions Page for additional terms relevant to any site alteration or fill by-law.

EXEMPTIONS

Things to consider: Many municipal by-laws include an exemption for “normal farm practice”, but exclude fillings in excess of a specified topsoil height or fill volume. However, since “normal farm practice” is defined case by case, it may be most effective not to specify limits, for example:

“This By-law does not apply to: […]
  1. the removal of topsoil as an incidental part of a normal farm practice including such removal as an incidental part of sod-farming, greenhouse operations and nurseries for horticultural products, but this By-law is applicable to the removal of topsoil and removal, placement or replacement of sub-strata for sale, exchange or other disposition;”3

Prohibitions related to agricultural lands often address removal and replacement of topsoil. The limit for replacement of topsoil tends to be between 20 and 30 centimeters and between 500 and 1000 cubic metres. Limits on topsoil height and fill volume are typically included to prevent illegal fill operations attempting to pass as normal agricultural practice. However, municipalities should also consider that operations exceeding these limits may be deemed normal farm practice by the NFPP Board. Example prohibition language is provided below.


Removal of topsoil from Agricultural Lands per the Municipal Act, 2001:

“This By-law is not applicable to the following: […]
    (m) The removal of topsoil from agricultural lands incidental to a normal agricultural practice including such removal as an incidental part of sod farming, greenhouse operations and nurseries for horticultural products. This exception does not include the removal of topsoil for sale, exchange or other disposition;”4

Replacement of topsoil on Agricultural Lands:

No fill permit is required for: […]
    f) Replacement of topsoil for restoration of agricultural lands used for normal agricultural practices, as an incidental part of sod farming, greenhouse operations, and nurseries for horticultural practices. Storage of such topsoil shall not exceed one thousand (1000) cubic metres.”5

PERMIT ISSUANCE

Things to consider: The MOECC document Management of Excess Soil – A Guide for Best Management Practices (BMP) indicates that a qualified person (see Definitions) may need to consult with an agrologist in determining the appropriateness of excess soil for agricultural purposes (see MOECC BMP below).
From the MOECC BMP: “Depending upon the intended beneficial reuse of the excess soil, the [qualified person] may need to consult with others to make decisions on the appropriateness of the excess soil for reuse, such as an agrologist if soil is to be used for an agricultural purpose.”6
MOECC BMP
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Resources:
OMAFRA provides guidance on healthy soils for agricultural operations through the Agronomy Guide for Field Crops.

Municipal requirements for professional agrologist/Certified Crop Advisor reports are provided by some municipalities under the Permit Issuance section. For example:

“To obtain a permit pursuant to this By-law, an applicant shall provide the following information: […]
    4.1.10 for site alteration on agricultural lands, a soil fertility report, signed by a professional engineer/soil scientist, confirming that the site alteration will not result in a reduction in the overall soil fertility;”7