Ontario Bill 197, the COVID-19 Economic Recovery Act, 2020 ("Bill 197"), makes significant changes to the Class Environmental Assessment ("EA") system in Ontario. The Class EA system sets out 10 simplified planning processes dedicated to groups of activities, which if properly followed, do not require comprehensive, individual EAs. Bill 197 amends the Environmental Assessment Act ("EAA") to reshape and replace the Class EA system in order to enable the creation of new streamlined regulations with consistent and standardized processes. This will affect all 10 of the existing Class EAs. However, the transition to streamlined regulations is not immediate. The existing Class EAs will remain in place until the new regulations are passed.[1]

In interim, there are proposed changes to the existing Class EA guide documents, including the Municipal Class EA document prepared by the Municipal Engineers Association (the "Municipal Class EA"). The Municipal Class EA sets out the procedure to be followed in order to plan municipal infrastructure projects, including roads, water, wastewater and transit projects, in a way that protects the environment. This article explores how the proposed changes will affect ongoing and new projects subject to the Municipal Class EA process in the near term.

Exempting more projects from Municipal Class EA

The Municipal Class EA currently classifies projects into four categories:

  • Schedule A projects generally include normal or emergency operational and maintenance activities;
  • Schedule A+ projects are similar to Schedule A projects, but the public must be advised prior to implementing A+ projects;
  • Schedule B projects generally include improvements and minor expansions to existing facilities; and
  • Schedule C projects generally includes the construction of new facilities and major expansions to existing facilities[2]

On June 6, 2019, as part of the More Homes, More Choice Act, the EAA was amended to exempt Class A and A+ projects from Municipal Class EA requirements, because they were considered to be low-impact projects with minimal environmental effects.[3] Meanwhile, Schedule B and C projects continued to follow the Class EA process.

The latest round of proposed amendments to the Municipal Class EA classifies more projects as Schedule A and A+ projects, meaning those projects would be pre-approved and do not need to follow the Class EA process. This affects a broad range of project types.

For example, in the current Municipal Class EA, the replacement of a water intake pipe for a surface water source is a Schedule B project that would be subject to a screening process, including consultation with those who may be affected. Under the proposed Municipal Class EA, this project would shift from a Schedule B to Schedule A+ project, meaning no Class EA requirements apply to the project, with the exception of notifying adjacent residents. The rationale for exempting this project from a Municipal Class EA is that such a project would be evaluated and approved through other permits, including the Environmental Compliance Approval and Permit to Take Water process.[4]

Similarly, it is proposed that the installation, construction or reconstruction of traffic control devices be shifted from a Schedule C to Schedule A+ project. This is a substantial change because such projects no longer have to undergo the full planning and documentation procedures associated with Schedule C projects, including preparing and filing an Environmental Study Report for review by the public and review agencies. The stated reasoning behind this change is that such projects are typically located within existing rights-of-way and the potential for adverse impacts on the natural environment from this type of project is low. Social impacts could be addressed directly between the proponent and stakeholders.[5]

Despite these changes, any Schedule B or C project that has already begun,[6] shall continue until it is completed, unless the proponent provides a "Notice of Schedule Change" to impacted stakeholders and government agencies. Further, the revised Municipal Class EA document cautions: "It is inappropriate for a proponent to issue a Notice of Schedule Change to specifically avoid a Part II Order request".[7]

Harmonizing terminology in the Municipal Class EA with other class EA documents

The Ministry of Environment Conservation and Parks ("MECP") has also made administrative changes to update terminology in Class EAs. All public notices require proponents to publish a public notice once the Class EA process has been completed to commence the final public review period. However, the 10 different Class EAs previously used different terminology for the notices. Now, the MECP has standardized the terminology as follows:

  • "Notice of Completion" (e.g. in the Municipal Class EA, the term "Notice of Completion of Environmental Study Report" is replaced by the term "Notice of Completion")
  • "Notice of Addendum" (e.g. in the Municipal Class EA, the term "Revised Notice of Completion and "Notices of Filing of an Addendum" are replaced by the term "Notice of Addendum")
  • "issue/issued" (remains the same in the Municipal Class EA process)
  • "comment period" (e.g. in the Municipal Class EA, the term "review period" when used in relation to a notice is replaced by the phrase "comment period").[8]

These administrative amendments are already in place, as they came into effect upon posting notice of the changes on the Environmental Registry of Ontario on July 8, 2020.[9]

Bump up requests

A significant change that affects the evaluation of municipal infrastructure projects is the availability of "bump up" requests, which refer to requests to require a project that has been subject to a Class EA to undergo an individual EA (formally referred to as a "Part II Order"). The current section 16 of the EAA, which governs this process will be repealed and new section substituted.

As before, the Minister of the MECP may make the bump up order on their own initiative or on the request of a person (see section 16(4)). However, under the new amendments to the EAA, such requests are only available "on the grounds that the order may prevent, mitigate or remedy adverse impacts on the existing aboriginal and treaty rights of the aboriginal peoples of Canada" (see section 16(6)).[10] Previously, the grounds for a bump up request were not limited in any way. Now, stakeholders who do not have concerns related to aboriginal and treaty rights can no longer make a bump up request.

The amendments also set timelines for when the Minister can intervene on their own initiative to impose conditions on or bump up a streamlined project. The Minister must make such an order within 30 days after the end of the comment period provided for in a notice of completion issued under the approved Class EA, unless the Minister provides notice otherwise (see section 16.1(1)).[11] Importantly, the new time limit will take effect once the Bill receives Royal Assent, which is expected in the coming days.

Conclusion

Eventually, the Government plans to replace the Municipal Class EA and other Class EA processes with streamlined regulations. However, in the interim, many changes have been proposed to exempt more projects from Municipal Class EAs and limit bump up requests. While many aspects of Municipal Class EA will remain unchanged in the near-term, the amendments appear to narrow the application and scope of Municipal Class EAs and individual EAs in Ontario.

[1] Government of Ontario, "Proposed Environmental Assessment Act (EAA) Amendments in the COVID 19 – Economic Recovery Act" (July 8, 2020), online: https://ero.ontario.ca/notice/019-2051; Bill 197, the COVID-19 Economic Recovery Act, 2020, Schedule 6, Part II.4.

[2] For example, in the current Municipal Class EA document, Schedule A projects include snow and de-icing operations, normal operation of sewage treatment plants and reconstruction of transit stations where no land acquisition is required. Schedule A+ projects include construction or removal of sidewalks within existing protected rights of way, retiring water or wastewater facility and new transit stops. Schedule B projects include expanding existing water treatment plant to existing rated capacity where land acquisition is required and constructing new transit stations in or adjacent to residential land-use or environmentally-sensitive area. Finally, Schedule C projects include constructing a new sewage system and widening an existing road to create new transit lanes for bus or light rail.

[3] More Homes, More Choice Act, 2019, S.O. 2019, c. 9, Schedule 6, s. 5; Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 15.3(4)3.

[4] Table of Proposed Municipal Class EA Amendments – Water/Wastewater (Version 4, Dated December 23, 2019), Change W29.

[5] Table of Proposed Municipal Class EA Amendments – Transit (Version 4, Dated June 24, 2020), Change T2.

[6] I.e. Those projects for which a Notice of Commencement has been issued under the 2000 Municipal Class EA document, as amended in 2015.

[8] Government of Ontario, "Administrative Amendments to Class Environmental Assessments, ERO 019-2038" (July 8, 2020), online: https://ero.ontario.ca/notice/019-2038.

[9] The Director of the MECP has the power under section 15.4(5) of the EAA to amend approved Class EAs with administrative changes. These amendments came into effect upon posting of the notice on the Environmental Registry of Ontario as the notice served as notice under section 15.4(7) of the EAA.

[10] Bill 197, COVID-19 Economic Recovery Act, Schedule 6, s. 25.

[11] Government of Ontario, "Proposed Environmental Assessment Act (EAA) Amendments in the COVID 19 – Economic Recovery Act" (July 8, 2020), online: https://ero.ontario.ca/notice/019-2051.