Things to consider: The definitions provided below are example definitions for key terms that relate to common issues of site alteration and fill by-laws. Definitions should be adapted to the specific needs of the municipality and coordinated with the other language in the by-law.

DEFINITIONS

Things to consider:
Adverse Effect
When adverse effect is defined in a by-law, the definition should reference The Environmental Protection Act, R.S.O 1990, c. E.19 (EPA) definition, as recommended by the MOECC document Management of Excess Soil – A Guide for Best Management Practices (BMP). This definition is as follows:

"'Adverse Effect' means one or more of:
  1. impairment of the quality of the natural environment for any use that can be made of it;
  2. injury or damage to property or to plant or animal life;
  3. harm or material discomfort to any person;
  4. an adverse effect on the health of any person;
  5. impairment of the safety of any person;
  6. rendering any property or plant or animal life unfit for human use;
  7. loss of enjoyment of normal use of property; and
  8. interference with the normal conduct of business.”1

Aggregate Resources Act (ARA): The ARA is currently being reviewed and amended. Municipalities should stay updated on the changes and define the ARA in any by-laws where it is referenced.

"'Aggregate Resouces Act'means the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended;” 2

Agricultural Lands
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, by-laws should not define “normal farm practice”. 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;”3

For consistency purposes, municipalities should 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;”4

Archaeology
The definitions below for archaeological sites, areas of archaeological potential, built heritage and cultural heritage landscapes are taken from the Ministry of Tourism, Culture and Sport. Including these definitions in site alteration and fill by-laws highlights types of areas that may be impacted by site alterations and require additional planning.

Archaeological sites: Any property that contains an artifact or any other physical evidence of past human use or activity that is of cultural heritage value or interest (Ontario Heritage Act Regulation 170/04).

Areas of archaeological potential are areas of a property which may contain archaeological resources. The ministry has established criteria and a checklist for determining areas of archaeological potential. Some municipalities have also chosen to prepare archaeological management plans in which areas of archaeological potential within that municipality are identified and mapped.” 5

Areas of Natural Significance If environmentally sensitive areas, as referred to in Ontario Regulation 153/04, are referenced in a by-law, an “area of natural significance” should be defined per Ontario Regulation 153/04 as follows:

“‘areas of natural significance’ means any of the following:
  1. An area reserved or set apart as a provincial park or conservation reserve under the Provincial Parks and Conservation Reserves Act, 2006.
  2. An area of natural and scientific interest (life science or earth science) identified by the Ministry of Natural Resources as having provincial significance.
  3. A wetland identified by the Ministry of Natural Resources as having provincial significance.
  4. An area designated by a municipality in its official plan as environmentally significant, however expressed, including designations of areas as environmentally sensitive, as being of environmental concern and as being ecologically significant.
  5. An area designated as an escarpment natural area or an escarpment protection area by the Niagara Escarpment Plan under the Niagara Escarpment Planning and Development Act.
  6. An area identified by the Ministry of Natural Resources as significant habitat of a threatened or endangered species.
  7. An area which is habitat of a species that is classified under section 7 of the Endangered Species Act, 2007 as a threatened or endangered species.
  8. Property within an area designated as a natural core area or natural linkage area within the area to which the Oak Ridges Moraine Conservation Plan under the Oak Ridges Moraine Conservation Act, 2001 applies.
  9. An area set apart as a wilderness area under the Wilderness Areas Act;”6

Built Heritage
As defined in the Ministry of Tourism, Culture & Sport: Standards & Guidelines for Conservation of Provincial Heritage Properties:

Built heritage means one or more significant buildings (including fixtures or equipment located in or forming part of a building), structures, monuments, installations, or remains associated with architectural, cultural, social, political, economic, or military history and identified as being important to a community. For the purposes of these Standards and Guidelines, ‘structures’ does not include roadways in the provincial highway network and in-use electrical or telecommunications transmission towers.”7

Commercial Fill Operation
Some municipalities define commercial fill operations as those involving remuneration or compensation; whereas others also include volume thresholds. When volume thresholds are used, most municipalities use 10,000 cubic metres as the qualifying limit. Municipalities should consider that financial compensation may not be the only commercial benefit gained; for example, fill operations may decrease developer storage costs and therefore improve real estate value. The following example includes both compensation and volume definitions:

“‘commercial fill operation’ means a large site alteration which meets one or more of the following criteria:
  1. the placing or dumping of fill is for commercial benefit or gain, whether for the owner or occupier of the land or for a third party, including the placing or dumping of fill involving remuneration paid, or any other form of consideration provided, to the owner or occupier of the land or a third party, whether or not the remuneration or consideration is the sole reason for the placing or dumping of the fill;
    • ii. the placing or dumping of fill is for a commercial purpose;
      iii. greater than ten thousand (10,000) cubic metres of fill is being placed or dumped within a twelve (12) month period;
      iv. the fill is obtained from more than one source site and there is no Fill Management Plan in effect;
      v. the fill is generated as a function of a waste soil treatment and/or remediation facility, whether or not such facility is operated under an Environmental Compliance Approval issued by the Ministry of the Environment and Climate Change.”8

Contaminant
Defining contaminants or contaminated soil is important for municipalities to regulate soil quality and should be tailored based on the required quality standards used in each by-law. Contaminant should be simply defined per its Environmental Protection Act (EPA) definition, as done in the MOECC BMP and shown below:

“‘Contaminant’ means any solid, liquid. gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that may cause an adverse effect;”9

Contaminant definitions can also incorporate further specifics on the municipality’s soil quality standards.

Many by-laws use Table 1 standards of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” published by the MOECC dated April 15, 2011, as amended, however, the MOECC BMP recommends: “[Qualified Person]s using the Standards in Tables 1-9 must ensure they are aware of how the Standards were developed, and the important assumptions behind the Standards are considered when they are applied to excess soil management activities.”10

In order to promote beneficial reuse of soil, municipalities may consider having by-laws with quality allowances beyond Table 1 standards. These allowances can be written into definitions relating to contaminants as shown in the example below that recommends Table 1 standards but allows site-specific exceedances as approved by the municipality:

“‘Contaminated Fill’ means
  1. any Soil that does not meet the Table 1 Standards, unless the Applicant has demonstrated to the satisfaction of the Director that the existing ambient soil quality of the receiving site does not meet Table 1 Standards or that the Placing or Dumping of Soil that meets Table 2 Standards would not have a detrimental effect on ground water;
  2. any Fill that contains putresible material; and
  3. bio- solids created by the paper manufacturing process, either in the form of pure paper fibre bio-solids or as mixed with other material to form products known as "nitro- sorb", " sound sorb", or other products with similar composition.”11

New standards are being developed by the MOECC that municipalities should consider using in replacement of Table 1 standards of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act”, when published.

Cultural Heritage Landscapes
As defined in the Ministry of Tourism, Culture & Sport: Standards & Guidelines for Conservation of Provincial Heritage Properties. Examples include: Heritage conservation districts designated under the Ontario Heritage Act; villages; parks, gardens; battlefields; mainstreets and neighbourhoods; cemeteries; trails; and industrial complexes of cultural heritage value.

“Cultural heritage landscape means a defined geographical area of heritage significance that human activity has modified and that a community values. Such an area involves a grouping(s) of individual heritage features, such as structures, spaces, archaeological sites, and natural elements, which together form a significant type of heritage form distinct from that of its constituent elements or parts.”12

Environmentally Sensitive Areas
These are areas of ecological significance within a jurisdiction. By-law definitions should make reference to the municipal official plan, zoning by-law or other applicable planning document(s) where the jurisdiction’s environmentally sensitive areas are described, as the Ontario Regulation 153/04 does not provide a definition. A general definition is as follows:

“‘Environmentally Sensitive Area’ means an environmentally sensitive area, natural area, ravine, core supporting area, environmental constraint area, or other area as designated in the City's Official Plan, as amended, including as set out in Schedules "B" and "B 1" thereto, or the Regional Official Plan, as amended, used to define, describe or delineate an area of environmental importance;”13

O. Reg. 153/04 does provide site condition standards for environmentally sensitive areas, which municipalities may also refer to:

  1. the property is,
    1. within an area of natural significance,
    2. includes or is adjacent to an area of natural significance or part of such an area, or
    3. includes land that is within 30 metres of an area of natural significance or part of such an area;
  2. the soil at the property has a pH value as follows:
    1. for surface soil, less than 5 or greater than 9,
    2. for sub-surface soil, less than 5 or greater than 11;”14

For the above environmentally sensitive area description above, “area of natural significance” should also be defined [see Definition].
Excess Soil
In accordance with the MOECC BMP, any soil that is removed from a site is referred to as excess soil, as described in the definition below. Excess soil is often a component of fill.

“‘Excess Soil’ Soil that has been excavated, typically as a result of construction activities that cannot or will not be reused at the site where the soil was excavated and must be moved off site. In some cases, excess soil may be temporarily stored at another location before the excess soil is brought back to be used for a beneficial reuse at the site where the soil was originally excavated. Excess soil does not refer to such materials as compost, engineered fill products, asphalt, concrete, re-used or recycled aggregate product and/or mine tailings, other products, including soil mixed with debris such as garbage, shingles, painted wood, ashes, or other refuse. It could include naturally occurring materials commonly known as earth, topsoil, loam, subsoil, clay, sand or gravel, or any combination thereof.”15

Fill
Fill definitions may refer generally to material that can be deposited or removed from lands or list example materials which may constitute fill. An example definition is provided below.

“‘Fill’ means topsoil, Soil, rock, stone, clean concrete without coating, free of rebar and free from contamination, sod or turf, either singularly or in combination, and scientifically demonstrated inert material. All Fill must meet the applicable Site Condition Standards, must not contain putrescible materials, must be free of termites and invasive species including the eggs and seeds of such species, and must pass a slump test as outlined in the General Waste Management provisions contained in Ontario Regulation (O.Reg.) 347.”16

The MOECC BMP applies to “excess soil” and not the other components of fill listed above. For this reason, municipalities should consider including a definition for “excess soil” if “fill” is defined as such.

Fill Management Plan
Most current Ontario by-laws do not require a fill management plan, and those that do, typically do not reference or match the MOECC BMP meaning. Because of the discrepancies in fill management plan requirements, the plan should be defined as it is used within the respective by-law and clarify that it is a permit requirement.

Fill Management Plan’ means a fill management plan required as a condition of a permit pursuant to Section 4.07 of this By-law, in accordance with the Guidelines, and approved by the Director,”17

Invasive Species
Bill 37, Invasive Species Act, 2015, developed by the Ontario Ministry of Natural Resources and Forestry, defines invasive species as:

“‘invasive species’ means a species that is not native to Ontario, or to a part of Ontario, and, (a) is harming the natural environment of Ontario or of the part of Ontario in which it is present, or (b) is likely to harm the natural environment of Ontario or of a part of Ontario, regardless of whether it is present in Ontario or in a part of Ontario.

Large Site Alteration
Large site alterations may be defined to delineate operations that are large enough across a certain time period to have significant impacts, and may require additional requirements and fees due to increased potential impact. The definition should be determined based on calculated volume of the site alteration, the total volume of fill being dumped or placed (anywhere between 500 and 10,000 cubic metres) and/or the change in grade elevation (0.5 m to 1 m). Municipalities may also choose to include a specified time period for the fill placement as done in the example definitions below:

“‘Large site alteration’ means any site alteration where greater than five hundred (500) cubic metres of fill is being placed or dumped within any twelve (12) month period or resulting in a change to existing landform of greater than six hundred (600) millimetres from existing grade”18

OR

"‘Large Scale Site Alterations’ includes the placing or dumping or removal of fill and the alteration of grade involving more than 1000 cubic metres of fill or where the elevation of the site will increase or decrease by more than l m at any point on the site;”19

OR

“‘Large site alteration’ means any Site Alteration where the total volume of Fill or Waste or any combination of Fill or Waste, is 5,000 cubic metres or greater on any Property in any 12 month period”20

Since there are variances between districts when defining large site alterations, municipalities should consider the definitions used in surrounding areas and evaluate their own enforcement and administration capabilities and resources.

Qualified Person
The MOECC BMP defines a qualified person based on section 5 and section 6 of Ontario Regulation 153/04, as is written in the by-law example below. "Qualified person" is defined specifically for the purposes of submitting a record of site condition for filing. Municipalities may want to consider the need for qualified persons to be assisted by other specialists, such as agrologists, archaeologists and arborists.

The MOECC is currently developing new regulation for the management and placement of excess soil, which may include an updated definition for “qualified person” that builds upon the definition below.

“‘Qualified Person’ means a licensed professional as stated in the EPA Section 168.1 and further described at length in Part II of O. Reg. 153/04”21

Site Alteration
Site alteration definitions may generally reference any alteration of the grade, or can also include a more specific listing of the applicable materials, as the example below:

“‘Site Alteration’ means the placement or dumping of fill on land, the removal of topsoil from land or the alteration of the grade of land by any means including the removal of vegetation cover, the compaction of soil or the creation of impervious surfaces, or any combination of these activities;”24

Soil
The first definition for soil below is used in the MEOCC BMP and is in accordance with Ontario Regulation 153/04. However, many by-laws use the second more general definition for soil that allows a broader range of material to be regulated.

“Soil” means “unconsolidated naturally occurring mineral particles and other naturally occurring material resulting from the natural breakdown of rock or organic matter by physical, chemical or biological processes that are smaller than 2 millimetres in size or that pass the US #10 sieve.”25

OR

“‘Soil’ means the natural materials commonly known as earth, topsoil, loam, subsoil, clay, sand or gravel.” 26

The MOECC is currently developing new policy for the management and placement of excess soil, which may include an updated definition for “soil”.

Temporary Storage
If temporary storage is permitted, the by-law must specify the allowed duration. The MOECC BMP recommends a storage duration of no longer than two years. Some municipalities that were consulted expressed concern with two years being too long and felt more comfortable with six months, as written in the example below:

“‘Temporary Storage’ means storage of fill material for a period of 6 months or less;”27

Waste
Under Ontario Regulation 347 and the Environmental Protection Act, the generator is required to determine if the soil is a waste and how the excess soil will be managed. Excess soil can go to an approved processing facility, landfill or other receiving site. If the excess soil is determined to be hazardous waste (for example it fails the Toxicity Characteristic Leaching Procedure and is a leachate toxic waste), the generator must meet the hazardous waste requirements in Ontario Regulation 347, the Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste and the Environmental Protection Act.
Resources:
The Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste provides more information on waste and soil remediation.

Site alteration and fill by-laws are not applicable to waste. With a detailed definition of fill as above, waste can be simply defined as follows:

“‘Waste’ means any material that is not Fill.”28

The MOECC is currently developing new policy for the management and placement of excess soil, which may include an updated definition for “waste” as it relates to excess soil.
1. Town of Aurora Fill By-law 4751-05.P
2. City of Burlington Site Alteration By-law 64-2014
3. Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1
4. Town of Georgina By-law 2011-0044
5. Ministry of Tourism, Culture and Sport: Glossary of Ontario Terms
6. O. Reg. 153/04: RECORDS OF SITE CONDITION - PART XV.1 OF THE ACT
7. Ministry of Tourism, Culture & Sport (2014). Standards & Guidelines for Conservation of Provincial Heritage Properties
8. Scugog By-Law 62-15
9. Town of Aurora Fill By-law 4751-05.P
10. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
11. Municipality of Clarington By-law 2088-114.
12. Ministry of Tourism, Culture & Sport (2014). Standards & Guidelines for Conservation of Provincial Heritage Properties.
13. Waterloo By-Law 2010-066
14. O. Reg. 153/04: RECORDS OF SITE CONDITION - PART XV.1 OF THE ACT
15. Ministry of the Environment and Climate Change. Excess Soil Management Policy Framework
16. Whitchurch-Stouffville-Filling Site Alteration By-Law 2014-101-RE
17. Scugog Site Alteration By-law 62-15
18. Scugog-Site-Alteration By-Law 62-15 2015
19. Erin-Site Alteration By-law 16-31
20. Whitchurch-Stouffville-Filling Site Alteration By-Law 2014-101-RE
21. City of Burlington Site Alteration By-law 64-2014
22. City of Barrie Site Alteration By-law 2014-100
23. Ministry of Tourism, Culture & Sport (2014). Standards & Guidelines for Conservation of Provincial Heritage Properties
24. Waterloo By-law 2010-066
25. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
26. Whitchurch Stouffville By-law 2014-101
27. City of Burlington Site Alteration By-law 64-2014
28. Whitchurch Stouffville By-law 2014-101