Summary of Issue
Things to Consider
Conservation authorities regulate development, including site alteration, within areas associated with natural hazards, watercourses, wetlands and shorelines, as described in their individual regulations made under section 28 of the Conservation Authorities Act. Municipalities should consult with their local conservation authorities to ensure that their Site Alteration By-laws contain the necessary integration provisions to ensure streamlined and effective local administration of site alteration activities between municipal and conservation authority jurisdictions. The respective authorities are overlapping, each with a specific mandate, both of which must be satisfied.
Short Form References
This page makes reference to:
the “Excess Soil Regulation” which is the short form for the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.
the “Rules document” which is the short form the reference document to the regulation entitled Rules for Soil Management and Excess Soil Quality Standards
MECP BMP -which is Ministry of Environment, Conservation and Parks document of Excess Soil – A Guide for Best Management Practices.
Brownfields regulation refers to Ontario Regulation 153/04
Key Takeaways
With the changes to the Municipal Act in 2017 (repeal of subsection 142 (8) of the Municipal Act, 2001) municipal jurisdiction extends into areas previously under the singular authority of Conservation Authorities. With the changes (repeal) municipalities and Conservation Authorities are no longer operating in “two solitudes” rather they can function more as partners and collaborators, each bringing their specific and complementary oversight to fill management. For example, a CA will have a particular mandate that focuses on “Natural Hazards” such as the protection of flood plains, erosion, watercourses, wetlands etc. Municipalities (in addition to regulating nuisance, noise, impacts on roads, access, hauling routes and soil quality and quantity) may also impose regulations that protect “Natural Heritage” aspects such as greenspace, woodlands etc.
See Resources section below for a generic relationship MOU template between municipalities and local conservation authorities.
Resource: MOU Template
Generic Template for a Memorandum of Understanding [1] between a Conservation Authority and local government regrading responsibilities over shared jurisdiction.
“Procedures to Regulate Excess Soil and Site Alteration Under the Municipal Act, 2001, the Conservation Authorities Act and the Planning Act AND To Define the Roles of Conservation Authorities and the Township in the Regulation of Excess Soil and Site Alteration within the Township”
By-law Sections
Exemptions
Things to Consider
Activities that are undertaken in conservation authority regulated areas are typically noted in by-laws as being exempt from the Town’s Site Alteration and Fill by-law. References to exemptions for Conservation Areas should be removed from by-laws, going forward. Typical examples that should be deleted from by-laws:
Sample Language
Example 1: “By-law ceases to have effect
(8) If a regulation is made under section 28 of the Conservation Authorities Act respecting the placing or dumping of fill, removal of topsoil or alteration of the grade of land in any area of the municipality, a by-law passed under this section is of no effect in respect of that area. 2001, c. 25, s. 142 (8).[1] “
Example 2: (This by-law has no effect in…) “any area of the Town which is the subject of a regulation made under section 28 of the Conservation Authorities Act respecting site alteration;”[2]
Example 3: Another approach is to append a new by-law to the existing by-law, that speaks to the expanded area of jurisdiction.
“Section in 2013 by-law that was replaced: PART 2 - GENERAL REGULATIONS 2.1 This By-law applies to the entire Town of East Gwillimbury other than those areas which are subject to regulations made by the Lake Simcoe Region Conservation Authority under Clause 28(1) of the Conservation Authorities Act R.S.O 1990 c.c.27.
2018 amending by-law:
Being a by-law to amend By-law 2013-066, being a by-law to Regulate and Prohibit
“The Placing or Dumping of Fill and Site Alterations in the Town of East Gwillimbury”
WHEREAS Section 142 of the Municipal Act, 2001, S.O. c.25, as amended, authorizes municipal councils to pass by-laws to regulate or prohibit the removal of topsoil, the placing or dumping of fill, and the alteration of the grade of land;
AND WHEREAS Council previously passed By-law 2013-066, being a by-law to Regulate and Prohibit the Placing or Dumping of Fill and Site Alterations in the Town of East Gwillimbury;
AND WHEREAS changes to the Municipal Act have made it necessary to update By-law 2013-066;
NOW THEREFORE THE COUNCIL OF THE TOWN OF EAST GWILLIMBURY ENACTS AS FOLLOWS:
1. By-law 2013-066 is hereby amended as follows: a) Section 2.1 of Part 2 - General Regulations, be deleted in its entirety and replaced with the following:
2.1 This By-law applies to the entire Town of East Gwillimbury b) Section 3.1(m) of Part 3 - Exemptions is hereby repealed. 2. That in all other respects the provisions of By-law 2013-066, as amended, shall continue to apply.”[3]
Resources: Regarding Changes to the Municipal Act, 2001
Below is the current section (section 142) providing municipalities with the power to regulate site alteration. The key change that was made was the repeal of subsection 8 in 2017. Link to the legislation: Municipal Act, 2001, S.O. 2001, c. 25 (ontario.ca)
Site Alteration
Definition 142 (1) In this section, “topsoil” means those horizons in a soil profile, commonly known as the “O” and the “A” horizons, containing organic material and includes deposits of partially decomposed organic matter such as peat. 2001, c. 25, s. 142 (1). Powers of local municipality (2) Without limiting sections 9, 10 and 11, a local municipality may, (a) prohibit or regulate the placing or dumping of fill; (b) prohibit or regulate the removal of topsoil; (c) prohibit or regulate the alteration of the grade of the land; (d) require that a permit be obtained for the placing or dumping of fill, the removal of topsoil or the alteration of the grade of the land; and (e) impose conditions to a permit, including requiring the preparation of plans acceptable to the municipality relating to grading, filling or dumping, the removal of topsoil and the rehabilitation of the site. 2006, c. 32, Sched. A, s. 76 (1).
Delegation to upper-tier
(3) A lower-tier municipality may delegate all or part of its power to pass a by-law respecting the dumping or placing of fill, removal of topsoil or the alteration of the grade of land to its upper-tier municipality with the agreement of the upper-tier municipality. 2001, c. 25, s. 142 (3).
(4) Repealed: 2006, c. 32, Sched. A, s. 76 (2).
Exemptions
(5) A by-law passed under this section does not apply to, (a) activities or matters undertaken by a municipality or a local board of a municipality; (b) the placing or dumping of fill, removal of topsoil or alteration of the grade of land imposed after December 31, 2002 as a condition to the approval of a site plan, a plan of subdivision or a consent under section 41, 51 or 53, respectively, of the Planning Act or as a requirement of a site plan agreement or subdivision agreement entered into under those sections; (c) the placing or dumping of fill, removal of topsoil or alteration of the grade of land imposed after December 31, 2002 as a condition to a development permit authorized by regulation made under section 70.2 of the Planning Act or as a requirement of an agreement entered into under that regulation; (d) the placing or dumping of fill, removal of topsoil or alteration of the grade of land undertaken by a transmitter or distributor, as those terms are defined in section 2 of the Electricity Act, 1998, for the purpose of constructing and maintaining a transmission system or a distribution system, as those terms are defined in that section;
(e) the placing or dumping of fill, removal of topsoil or alteration of the grade of land undertaken on land described in a licence for a pit or quarry or a permit for a wayside pit or wayside quarry issued under the Aggregate Resources Act;
(f) the placing or dumping of fill, removal of topsoil or alteration of the grade of land undertaken on land in order to lawfully establish and operate or enlarge any pit or quarry on land,
i) that has not been designated under the Aggregate Resources Act or a predecessor of that Act, and
(ii) on which a pit or quarry is a permitted land use under a by-law passed under section 34 of the Planning Act; or
(g) the placing or dumping of fill, removal of topsoil or alteration of the grade of land undertaken as an incidental part of drain construction under the Drainage Act or the Tile Drainage Act. 2001, c. 25, s. 142 (5); 2002, c. 17, Sched. A, s. 30 (2, 3).
Exception
(6) A by-law respecting the removal of topsoil does not apply to the removal of topsoil as an incidental part of a normal agricultural practice including such removal as an incidental part of sod-farming, greenhouse operations and nurseries for horticultural products. 2001, c. 25, s. 142 (6).
Exclusion
(7) The exception in subsection (6) respecting the removal of topsoil as an incidental part of a normal agricultural practice does not include the removal of topsoil for sale, exchange or other disposition. 2001, c. 25, s. 142 (7).
(8) Repealed: 2017, c. 10, Sched. 1, s. 10.
How subsection 8 read before the repeal in 2017 (Bill 68):
By-law ceases to have effect
(8) If a regulation is made under section 28 of the Conservation Authorities Act respecting the placing or dumping of fill, removal of topsoil or alteration of the grade of land in any area of the municipality, a by-law passed under this section is of no effect in respect of that area. 2001, c. 25, s. 142 (8).
Things to Consider
The significance of the change to the Municipal Act is the expanded area of responsibility for Municipalities. For some communities, the geographic area of oversight will expand considerably due to the potential size of the lands formerly subject to exclusive site alteration regulation by the local conservation authority(ies). It is important to re-iterate that the change does not remove the CA’s regulatory jurisdiction, it simply means that the municipality is now also a regulator in these areas. In other words, an applicant may be required to get a permit from both the local municipality for its by-law purposes and the local conservation authority in relation to regulated areas under the Conservation Authorities Act. Therefore, municipalities will benefit from more efficient processes and consistent policy decisions and oversight by investing in strong working relationships with their counterparts in conservation areas.
Sample Language
Informal Practice Example:
Our municipality, East Gwillimbury, has an understanding that when the Town issues a permit, the CA is notified and vice versa so everyone is on the same page. It is also common for the Town’s inspectors and the CA inspectors to attend sites together.” E-G Practitioner
Things to Consider
Provincial Policy Statement, 2020
In addition to providing provincial direction for land use planning and development, the PPS, 2020 provides specific direction and prohibitions with respect to “site alteration.” Site alteration is a defined term in the PPS. Municipalities, in preparing and enacting Zoning By-laws, must make decisions that are consistent with PPS, 2020, including direction related to site alteration. In preparing and enacting Site Alteration By-laws, municipalities may wish to consider how their Site Alteration By-law harmonizes with the policy directions in the PPS, 2020, provincial plans and with Zoning By-laws enacted in consistency with the policy directions contained in PPS, 2020.
For example, PPS, 2020 directs that site alteration shall not be permitted in: certain natural heritage features such as certain wetlands or certain natural hazards such as dynamic beach hazards and floodways.
Resources: Provincial Policy Statement, 2020
In addition to providing provincial direction for land use planning and development, the PPS, 2020 provides specific directions and prohibitions with respect to “site alteration.” Site alteration is a defined term in the PPS. Municipalities, in preparing and enacting Zoning By-laws, must make decisions that are consistent with PPS, 2020, including directions related to site alteration. In preparing and enacting Site Alteration By-laws, municipalities may wish to consider how their Site Alteration By-law harmonizes with the policy directions in the PPS, 2020 and with Zoning By-laws enacted in consistency with the policy directions contained in PPS, 2020.
For example, PPS, 2020 directs that site alteration shall not be permitted in: certain natural heritage features such as certain wetlands or certain natural hazards such as dynamic beach hazards and floodways.
Things to Consider
Municipalities and Conservation Authorities are encouraged to coordinate their respective mandate roles by referencing plans such as A Place to Grow, 2020, The Greenbelt Plan 2017, Oak Ridges Moraine Conservation Plan 2017 and others, as relevant. Summaries of example plans referenced below.
A good example of making the links (although not directly referencing site alteration or fill movement activities) is drawn from the Durham Region Regional Woodland By-law.
Sample Language
“Good Forestry Practice Permits”
5.1 5.1 Any Person who intends to Cause Injury or Destruction to one or more Trees in a Woodland, in a manner that does not constitute Cumulative Removal or Clear Cutting, shall first complete and submit to the Region, an application for a Good Forestry Practice Permit. Such an application will be circulated to the Area Municipality, Conservation Authority and/or Commenting Agencies for comment and/or information purposes at the Region’s discretion. The Officer may, at their sole discretion, waive the requirement for a Good Forestry Practice Permit where the Tree removal being proposed involves a small number of Trees and the impact of the removal is deemed to be negligible or imperceptible to the integrity of the overall Woodland. In consultation with the Conservation authority having jurisdiction, the requirement for a Good Forestry Practice Permit may be waived in circumstances where Trees are entirely within a regulated area containing a wetland subject to the Conservation Authorities Act.” [5]
Resources: Greenbelt Plan, 2017
Site alteration is a defined term in the Greenbelt Plan. Proposals for site alteration in the Greenbelt Natural Heritage System (GNHS) are required to demonstrate they have met a series of policy tests (see Policy: 3.2.2.3). Further, the Greenbelt Plan establishes a prohibition against site alteration within key hydrologic features and key natural heritage features within the GNHS and associated vegetation protection zones (see Policy 3.2.5.1). Site alteration applications in the Protected Countryside are required to be accompanied by a stormwater management plan demonstrating a series of policy tests have been met (see Policy 4.2.3.4).
Municipalities, in preparing and enacting Zoning By-laws within the Greenbelt Protected Countryside, must make decisions that conform to the Greenbelt Plan, 2017, including directions related to site alteration. In preparing and enacting Site Alteration By-laws, municipalities may wish to consider how their Site Alteration By-law harmonizes with the policy directions in the Greenbelt Plan, 2017 and with Zoning By-laws enacted in conformity to the policy directions contained in the Greenbelt Plan, 2017.
Resources: Oak Ridges Moraine Conservation Plan (ORMCP), 2017
Site alteration is a defined term in the ORMCP. The ORMCP establishes a general prohibition against site alteration except as permitted by the Plan at section 5. Every application for site alteration in the ORMCP Plan Area is required to demonstrate that hydrological function is unimpeded and connectivity of plants and animals is maintained (section 20). The ORMCP establishes a prohibition against site alteration within key natural heritage features, key hydrologic features and associated vegetation protection zones (subsection 22 (2) and subsection 26 (1)). Site alteration activities that would cause impervious surfaces to exceed thresholds in certain subwatersheds is prohibited or subject to certain policy tests within settlement areas (section 27). Applications for site alteration within landform conservation areas are subject to certain requirements (section 30). Finally, site alteration applications are required to meet certain stormwater management requirements (subsection 45 (2) and (3)).
Municipalities, in preparing and enacting Zoning By-laws within the ORMCP Plan Area, must make decisions that conform to the ORMCP, 2017, including directions related to site alteration. In preparing and enacting Site Alteration By-laws, municipalities may wish to consider how their Site Alteration By-law harmonizes with the provisions of the ORMCP, 2017 and with Zoning By-laws enacted in conformity to the provisions of the ORMCP, 2017.
Resources: A Place to Grow, Growth Plan for the Greater Golden Horseshoe (Office Consolidation 2020) (A Place to Grow)
Site alteration is a defined term in A Place to Grow . Within the Natural Heritage System for the A Place to Grow Plan, site alteration must meet certain policy tests (see Policy 4.2.2.3). Outside of settlement areas, site alteration is not permitted in key natural heritage features that are part of the Natural Heritage System for the A Place to Grow Plan (site alteration is not permitted in key hydrologic features inside or outside of the Natural Heritage System for A Place to Grow) subject to certain policy tests (see Policy 4.2.3.1). Site alteration is not permitted within the vegetation protection zones associated with certain key hydrologic features and key natural heritage features (see Policy 4.2.4.3).
Municipalities, in preparing and enacting Zoning By-laws within the A Place to Grow plan area, must make decisions that conform to A Place to Grow, including directions related to site alteration. In preparing and enacting Site Alteration By-laws, municipalities may wish to consider how their Site Alteration By-law harmonizes with the policy directions in A Place to Grow and with Zoning By-laws enacted in conformity to the policy directions contained in A Place to Grow.
Resources: Niagara Escarpment Plan, 2017
The Niagara Escarpment Plan does not define the term site alteration and is not administered and implemented by municipalities in the same manner as the other provincial plans. Municipalities within the Niagara Escarpment Plan Area are encouraged to consult with the Niagara Escarpment Commission as to how the Niagara Escarpment Plan might interface with municipal site alteration by-laws.
References
[1] Developed and generously shared by Chris Jones, MCIP, RPP, Director of Planning and Regulation Central Lake Ontario Conservation Authority
[2] Municipal Act repeal Subsection 8, 2017
[3] Halton Hills Site Alteration and Fill By-law 2017 Site Alterations - Halton Hills
[4] Town of East Gwillimbury By-law 2018 http://www.eastgwillimbury.ca/Assets/3+2015+Services/1.0+By-Law+Enforcement/Fill+By-law+2013-066+-+Updated.pdf?method=1
[5] Regional Municipality of Durham By-law 30-2020 Destruction or Injury to Trees in Woodlands. https://www.durham.ca/en/doing-business/resources/Documents/PlanningandDevelopment/By-law-Number-30-2020.pdf