Ontario weakens watershed protections (again) as natural resources minister gets new powers

Ontario weakens watershed protections (again) as natural resources minister gets new powers
March 26, 2024 The Narwhal

By Fatima Syed

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Ontario’s minister of natural resources will soon have the power to overrule — or bypass — environmental oversight bodies to greenlight development.

The powers are codified in new regulations governing conservation authorities, which are unique to Ontario: for nearly 80 years, they have overseen and protected the province’s southern watersheds, in part by ensuring development occurs sustainably.

Released last month, the new Conservation Authorities Act rules do broaden some conservation authority powers by allowing them to stop development that threatens to worsen the impacts of a natural hazard such as floods, droughts and wildfires. But the changes also weaken their ability to protect water quality, reduce the distance between development lands and wetlands, and eliminate the need to acquire permits before building certain small structures.

Notably, the new rules strip away some of their powers by authorizing Natural Resources Minister Graydon Smith to issue development permits without conservation authority review. This is the second time in five years the Doug Ford government has attempted to weaken conservation authorities through legislation — although it hasn’t always been successful.

The minister is now empowered to direct conservation authorities to issue, or not issue, permits for development. Smith will also be able to change conditions a conservation authority might place on a permit — such as altering construction plans to better manage water intake or requiring regular reports. Developers will gain new mechanisms to appeal conservation authority decisions, including asking the minister to review them.

The goal, according to the rules, is to create “a clear and streamlined permitting process.” But experts say the minister’s new powers, combined with these changes, could do the opposite.

“It’s a pretty strange choice,” Laura Bowman, a lawyer with Ecojustice, told The Narwhal. “Conservation authorities have very detailed expertise in the management of their watershed. To take that out of their hands and put it in the hands of a minister and his staff who don’t know anything about the environment … it’s just going to cause chaos.”

The new Conservation Authorities Act regulations don’t clearly define when and how the minister could use these powers. Minister Smith told The Narwhal these powers would “of course, be extremely limited.”

“Conservation authorities do a great job at protecting people and keeping them safe,” he said at the Ontario legislature on Tuesday. “We really just wanted to streamline that regulation down.”

But the broadness of the regulations makes many nervous, especially when considered in light of other environmental oversight changes made by the Ford government. Along with the previous weakening of conservation authorities, the Ministry of Natural Resources has been stripped of its responsibility for evaluating how development proposals could affect wetlands: that job has been outsourced to private experts when needed and the criteria have been watered down.

Many conservation authority staff say this means the minister doesn’t have access to the environmental expertise needed to use these powers appropriately.

“The minister better staff up if he wants to tell us what to do,” Tim Byrne, head of Essex Region Conservative Authority in-between Lake Erie and the Detroit River, told The Narwhal. “And as for overruling us or appealing our decisions, well fuck you, minister. Based on what?”

“When you’re dealing with property issues, you have to balance private interests with public and environmental safety. Will the minister do that or weigh one over the other? We can all guess the answer.”

After this story was published, Byrne sent The Narwhal a statement to “sincerely apologize” for his comments. “Having devoted 38 years to ensuring that people and property are protected from flooding and erosion, I was extremely upset to learn that Conservation Authorities’ ability to continue doing this important work had been further eroded,” he said in an email. “Notwithstanding, I regret my use of inappropriate language and any embarrassment it has caused the Minister, my Board of Directors, fellow conservation authorities, and staff.”

Issuing a permit without conservation authority review “would open the [minister’s] door to requests,” Rob Baldwin, head of Lake Simcoe Region Conservation Authority, said. “Do they want that? It all comes down to how they use it and for what.” Last year, two watchdog reports on the Greenbelt scandal found the government had prioritized developer requests over environmental and technical considerations.

The Narwhal spoke to several experts — including 13 conservation authority staff — who say this move is especially concerning because it is part of a bigger trend, in which the Ford government appears to be devaluing expert opinions to make unilateral decisions. Many described this new power as similar to minister’s zoning orders — a mechanism Ford’s Housing Ministry has used more often than any other previous government to override planning regulations. The Ford government has also given the mining minister powers to approve exploration and closures, decisions that used to be made by technical experts.

“What is reflected here is still a lack of understanding of conservation authority expertise and a lack of appreciation for them,” Bowman said.

The Toronto and Region Conservation Authority told The Narwhal in an email that it “will continue to offer scientific and policy advice to the minister if we are made aware that the use of such powers is being considered.”

A ‘mixed bag’ of changes, including policies that will ‘squeeze’ wetlands between development: experts

These new regulations close the chapter on an early Ford government promise. Conservation authorities, which are staffed by ecologists, biologists, hydrologists, species-at-risk specialists and other experts, have been bracing for new rules since Ford took power in 2018 and vowed to streamline the planning process. Over the last six years, the authorities have tried to work with the government to maintain environmental oversight of development. Instead, the Progressive Conservatives have subjected these bodies to a series of legislative changes that have gone forward despite great pushback.

The government has proposed empowering the minister of natural resources to approve development applications twice: in 2020, with Bill 229, and again in 2022 with Bill 23, the More Homes Built Faster Act. Bill 23 led the head of Ontario’s species-at-risk agency to resign in protest. Even developers expressed concerns, warning of “unintended consequences” if the industry can’t depend on conservation authority expertise to help protect homes and cities from natural hazards.

Still, the new regulations take effect on April 1 and seemingly ignore some of these concerns to present what many say is a “mixed bag” of changes.

One new rule causing significant worry is a change to the distance required between development lands and wetlands. Known as a “setback,” such buffer zones are important to protect property from flooding and habitat from pollution or erosion. Ontario’s historical minimum of 120 metres will be changed to just 30 metres. The impacts of the reduced setback on water and the surrounding environment will now be determined on a case-by-case basis, likely creating additional work for many authorities.

Patricia Chow-Fraser, a biologist and professor at McMaster University, believes this “shortsighted” move will harm species at-risk, some of which move 50 metres or more between water and land daily. Breaking apart wetlands endangers them, she said. “Under these rules, we’ll be squeezing them in an urbanized centre and that is the wrong way to go,” she told The Narwhal.

The new rules also exempt minor construction — docks, patios, decks, hot tubs and garages — from conservation authority permit requirements for the very first time, even in flood zones. Minister Smith told The Narwhal the change is meant to allow people “to do very low-risk activity and get a permit.”

But Geoff Cade, water and planning manager at Ausable Bayfield Conservation Authority — Ontario’s first, on the southeastern shores of Lake Huron — worries too many small structures built on shorelines without oversight could become a problem. “[The new] regulation allows these structures to be built in areas that were underwater a couple of years ago” when high water levels caused severe flooding, he said.

The government hasn’t provided reasoning or risk assessment for its new exemptions, but Byrne, whose region is the most flood-prone in the province, has his own opinion.

“These exemptions have nothing to do with the natural environment but to help build things for people’s enjoyment and in the long term increase the threat of flooding,” Byrne said. “Why would you allow additional kinds of development in flood zones? Even if it’s small, it just doesn’t make sense.”

Still, most conservation authority staff who spoke to The Narwhal are “pleasantly surprised” that the government has walked back its broad-scale attack. On paper, the rules give authorities greater powers to stop development that is likely to have harmful impacts, including the power to independently (“and responsibly,” Baldwin said) stop development in a floodplain, a provincially significant wetland or on sensitive river banks — though it is unclear if the minister can intervene in such decisions.

The rules also empower conservation authorities to enforce greater fines for those egregiously harming the environment during construction. “It changes the playing field of deterrence,” Baldwin said.

“These regulations aren’t as dramatic as we all feared,” Bowman said. “But [conservation authorities’] role has been severely undermined and all for what end? To have a slightly more constrained and environmentally limited permitting process?”

“This is just setting the stage for a bunch of new problems rather than addressing the problem the government has been talking about — slow development.”

New Conservation Authorities Act rules give developers more power to appeal permit denials

Before Bill 23, each of Ontario’s 36 conservation authorities was governed by its own regulations. The Ford government consolidated those regulations to ensure consistency, limiting the authorities’ focus to natural hazard prevention instead of overall watershed health. Cade said this one-size-fits-all approach doesn’t consider that rural and urban conservation authorities have different environmental landscapes and issues.

“As we try to create some ubiquitous landscape in terms of legislation, you risk losing local knowledge and scientific expertise and local characteristics of the natural world each of us is regulating,” Cade told The Narwhal.

“What I oversee is very different than the Greater Toronto Area.The development pressures are different.” His current concerns include gentrification, as small cottages on the Lake Huron shoreline morphing into big, permanent homes, and increased construction of large-scale migrant worker housing on farms.

The Narwhal reached out to all 36 authorities and heard back from 11, all of which were scrambling to understand the impacts of this latest round of changes and quickly implement them over the next three weeks. That includes redoing public maps to show the new buffer zones and identify floodplains, as well as revamping permit applications.

It’s a hefty job, they all say.

“We accept the changes but April 1 is a pipe dream,” Doug Hevenor, head of Nottawasaga Valley Conservation Authority, which oversees the region south of Georgian Bay, said. “Five years, we’ve played a changing game: reload and reunderstand. And we’re still playing it now.”

In addition to empowering the minister to greenlight development, the new Conservation Authorities Act regulations have changed the scope of what an authority can consider in reviewing development applications. It also speeds up their timeline.

The regulations still allow conservation authorities to consider the impacts of development on flooding, erosion and beaches to minimize harm to people and property. However, they can no longer consider the impact of development on water pollution at all, even though a key function of healthy wetlands is water filtration.

And while some conservation authority powers have increased, developers also have new powers: they can request a minister’s review on a permit denial or conditions. They can also appeal decisions, or the failure to make one within 90 days, at the Ontario Land Tribunal. Appeals can now centre on disputing studies used by conservation authorities in making a decision.

While some disputes might be handled more efficiently now, authority staff say, others could delay development instead of speeding it up. Altogether, the changes may make decision-making “more piecemeal and arbitrary,” Bowman said. “It’s going to result in a weirdly arbitrary, narrow process.”

Still, many conservation authority heads are trying to stay “cautiously optimistic.”

“Hopefully this was the last change for a while,” Baldwin said. “We’ve never been against the government trying to facilitate infrastructure or building homes. Our mandates are supportive of each other.”

“These regulations might be a new status quo. And we’ll figure it out — because we have to.”

— With files from Emma McIntosh

Update March 7, 2024, at 3:53 p.m.: This story has been updated to include additional comments from Tim Byrne, head of Essex Region Conservation Authority.

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Featured image: New Conservation Authorities Act rules reduce the mandatory distance between development and wetlands. These buffer zones, like between Carruthers Creek and surrounding housing in Ajax, Ont., help protect property from flooding and water from being polluted. (Photo courtesy of Toronto and Region Conservation Authority)


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