Reviewing the 2024 changes to Ontario’s Conservation Authority Act

At the provincial level, significant changes to the Ontario Conservation Authorities Act came into effect in 2024.

By way of background, there are 36 Conservation Authorities in Ontario. Conservation Authorities were first established by municipalities and the province in the 1940s to address flooding and erosion.[1] These local public sector organizations are subject to the Conservation Authorities Act, RSO 1990, c. C.27 (the “CA Act”), which is administered by the Ministry of Natural Resources. Conservation Authorities are mandated to ensure the conservation, restoration, and responsible management of natural resources in watersheds in Ontario.[2] Under the CA Act, they “develop and deliver local, watershed-based resource management programs on behalf of the province and municipalities.”[3]

Conservation Authorities have held a variety of roles. Prior to recent amendments, they were frequently involved in planning and development both through their roles as a regulatory authority under the CA Act, permitting authority for new development to protect against natural hazards, and commenting bodies under legislation such as the Planning Act and Environmental Assessment Act, commenting on provincial natural heritage and stormwater policies. They were also delegated the authority to represent the province with respect to planning review for natural hazards.

Previous amendments in 2023 substantially reduced their role as commenting bodies.[4]

How the 2024 amendments to the CA Act clarify the role of Conservation Authorities

In April 2024, additional amendments to the CA Act proposed as early as 2017, came into force. The amendments were enacted through a series of bills, including Bill 139: Building Better Communities and Conserving Watersheds Act, 2017, Bill 229: Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020, Bill 145: Accelerating Access to Justice Act, 2021 and Bill 23: the More Homes Built Faster Act, 2022.^[5] They were passed by the Ontario government with the goals of clarifying the role of Conservation Authorities and to encourage the construction of new housing by simplifying the development approvals process.

The most recent amendments introduce major changes to the permitting system under the CA Act resulting in a curtailment of Conservation Authorities’ powers and increase ministerial powers.

The key changes include:

• Replacement of individual regulations with a single new Regulation: Regulation-making powers with respect to Section 28 of the CA Act were removed from Conservation Authorities and granted to the Minister of Natural Resources (the “Minister”).[6] Previously, each of the province’s 36 Conservation Authorities were governed separately through their own individual regulations that outlined the permit process under Section 28 of the CA Act. Those regulations were revoked under the amendments and have now been replaced by Prohibited Activities, Exemptions and Permits, O Reg 41/24.
• Minister has authority to issue permits:  The Minister can now make orders directing Conservation Authorities not to issue permits for specified activities and has the authority to issue permits on its own.
• Removal of power to make regulations on Conservation Authority-owned lands :  Regulation-making powers over lands owned by the conservation authority were removed from Conservation Authorities and instead granted to the Minister.[7] These include the authority to make regulations governing the use by the public of the lands, the prescribing of fees, the regulation of vehicle and pedestrian traffic and the prohibition of the use of fires.
• Definition of “watercourse” revised: The previous definition of “watercourse” under the CA Act referred to “an identifiable depression in the ground in which a flow of water regularly or continuously occurs.” Now, the definition has been changed under the regulations to “a defined channel, having a bed and banks or sides, in which a flow of water regularly or continuously occurs”.[8] This narrows the definition and means that smaller watercourses without defined banks may no longer be regulated.
• Regulated area around Provincially Significant Wetlands reduced: The regulated area around “Provincially Significant Wetlands” has been reduced from 120 meters to 30 meters,[9] reducing the area Conservation Authorities can regulate and in which they can require a permit before development can occur.
• Regulations may be enacted in future that exempt activities from permits where the development is authorized by the Planning Act: The province may enact regulations exempting specified activities from a Conservation Authority permit if the activity is part of a development authorized under the Planning Act, RSO 1990, c. P.13, There are no regulations in force yet that address this provision.[10]
• New exemptions: Activities deemed “low risk” are now exempt from permitting requirements, including small seasonal or floating docks, fences, erosion control structures, non-habitable accessory buildings or structures, and small unenclosed detached decks or patios if they meet certain requirements.[11]
• Pre-submission consultation required when applicants request: Pre-submission consultation (i.e.. a pre-consultation meeting) is now required if requested by an applicant. However, most Conservation Authorities were already holding pre-consultations with applicants, so this change reflects what was already occurring.[12]
• Minister can make regulations governing the conditions that maybe attached to a permit: The amended CA Act grants the Minister the power to make regulations governing the conditions that may be attached to permits.[13]
• Restrictions in the types of conditions a Conservation Authority may attach to permits: In the past, Conservation Authorities were authorized to include conditions with respect to pollution or the conservation of land. O. Reg. 41/24 limits the conditions that authorities can attach to permits to only those associated with mitigating natural hazards or public safety.[14] This means that Conservation Authorities can no longer require permit conditions to protect water quality, such as requiring sediment and erosion controls.
• Legislated permit application requirements and timelines: O. Reg. 41/24 legislates the type of information that must be provided to Conservation Authorities when applying for a permit and imposes strict timelines on Conservation Authorities for processing and approving permit applications.[15]
• New appeals process: A Conservation Authority cannot refuse an application for a permit or attach conditions to a permit unless the applicant has been given the opportunity for a hearing. If the decision of the hearing is to refuse the permit or issue the permit with conditions, the applicant can submit a request to the Minister for a review of that decision within 15 days. The Minster will then determine if it intends to conduct a review of the decision. If the Minister does conduct a review, Minster must publish the intent to review in the Environmental Registry and may issue a decision to confirm or vary the Conservation Authority’s decision, including requiring conditions.
  
  A decision made by the Minister is final and cannot be appealed to a Tribunal. If the applicant does not want a Minster’s review, it can appeal the decision of the Conservation Authority’s hearing to the Ontario Land Tribunal. An applicant can also now appeal a failure of the Conservation Authority to make a decision on a permit application within 90 days to the Tribunal. [16]
• Annual reporting: Conservation Authorities are required to prepare and publish an annual report with statistics on permits and compliance with O Reg 41/24, although many Conservation Authorities were already doing this.[17]
• Public consultation required for permitting policies and procedures updates: Conservation Authorities must develop permitting policies and procedures, periodically review and update these and consult with stakeholders and the public during the review and update process.[18]

How these amendments may impact municipalities

The 36 Conservation Authorities and their partner municipalities have had to adjust to these major changes quickly. Many of the responsibilities previously undertaken by Conservation Authorities, such as commenting on development applications for compliance with natural heritage and stormwater policies or ensuring new development has appropriate sediment and erosion controls through permit conditions, will now fall to municipalities.

This could put an additional burden on municipalities who may not have the staff or expertise.

Amendments to the Ontario Wetland Evaluation System Manual

Further, amendments were made to the Ontario Wetland Evaluation System (“OWES”) Manual—the only provincial evaluation criteria for significance of wetlands, used to determine the boundaries of significant wetlands—which came into effect on January 1, 2023 to support Bill 23.[19] The “provincially significant” designation has significant implications, as provincial policy provides protection for significant wetlands in certain regions, including Southern Ontario.  The Provincial Planning Statement, 2024 (“PPS”) provides that development and site alteration shall not be permitted in significant wetlands in certain regions of Ontario.[20]

The previous PPS and OWES manual required the Ministry of Natural Resources to review and approve OWES evaluations, including any modifications to provincially significant wetland boundaries.  The new regime provides that qualified wetland evaluators (consultants who have completed the Ontario Wetland Evaluation System Course) will evaluate wetlands to determine if they are provincially significant and submit their report directly to the approval authority (e.g. the municipality) without any oversight by the Ministry.[21] Evaluators may now re-evaluate wetland complexes as single wetland units under the amended OWES manual, and may update mapping without a re-evaluation.[22]

It remains to be seen how this new process may affect development applications and cases before the Ontario Land Tribunal if a significant wetland designation, or boundary, is in dispute.

If you have any questions about these developments, please reach out to the authors or a member of our Environmental Law Group.