June 21, 2021
Conservation & Source Protection Branch
Ministry of the Environment, Conservation & Parks
40 St. Clair Avenue West
SUBJECT: ERO #019-2986 – “Regulatory Proposals (Phase 1) under the Conservation Authorities Act”
Thank you for the opportunity to comment on the Phase 1 Regulatory Proposals under the Conservation Authorities Act and for providing a sufficient amount of time to make a submission.
The comments below are provided on behalf of the Board of Directors of the Otonabee Region Conservation Authority. The Board endorsed these comments by resolution at their June 17, 2021, regular meeting and directed me to submit them on behalf of the Authority.
Scope of Conservation Authority Mandate
These comments relate to our observations on how well the proposed mandatory programs and services regulation aligns with the mandate of Conservation Authorities.
The purpose of the Conservation Authorities Act is, “to provide for the organization and delivery of programs and services that further the conservation, restoration, development and management of natural resources in watersheds in Ontario.” The yet-to-be proclaimed Subsection 20 (1) provides for the objects of an authority, which are to provide, in the area over which it has jurisdiction, mandatory, municipal, and other programs and services.
The Made-in-Ontario Environment Plan sets out a commitment to, “work in collaboration with municipalities and other stakeholders to ensure that Conservation Authorities focus and deliver on their core mandate of protecting people and property from flooding and other natural hazards and conserving natural resources.”
In our view, the proposed mandatory programs and services regulation is the mechanism to align the purpose of the Act and the government’s environmental commitments with the implementing mechanism of regulatory requirements and standards.
The regulatory proposals dealing with the Risk to Natural Hazards are fairly complete and robust and will enable an authority to deliver on the mandate of protecting, “people and property from flooding and other natural hazards.” This comment is based on the assumption that the proposed Section 28 regulation remains substantively unchanged.
We do however believe that the proposed mandatory program and service regulations falls short of addressing the government’s commitment of, “conserving natural resources.” The requirements and standards for achieving this commitment appear to be rather limited and focused only on the management of Conservation Authority owned lands that are currently in a natural state. We feel that the proposed regulations should be enhanced to better address this commitment.
Some suggestions include broadening the purpose of the watershed-based resource management strategy to, at the very least, include natural resource conservation requirements for all Conservation Authority owned lands and perhaps for lands where the Section 28 regulations apply. An additional enhancement could be the requirement to deliver a monitoring program to measure the effectiveness of the watershed-based resource management strategy.
We also have observed that the mandatory program and services regulatory proposal is silent on any, “standards or requirements to mitigate the impacts of climate change and provide for the adaption to a changing climate, through increasing resiliency.” These requirements are contemplated in the yet-to-be proclaimed Subsection 40 (2) of the Act.
That the mandatory program and service regulation include additional requirements and standards to address the government’s commitment for conserving natural resources.
That the mandatory program and service regulation include standards and requirements to mitigate the impacts of climate change and provide for the adaption to a changing climate, through increasing resiliency.
Risk to Natural Hazards
As discussed above, the proposed requirements and standards for the Risk to Natural Hazards mandatory program and service are generally robust and complete. This comment is however based on the assumption that the proposed Section 28 regulation remains substantively unchanged. The proposed Section 28 regulations should have been available for comment concurrent with the posting of the Phase 1 regulatory proposals. There may be a need to adjust these proposals in consideration of any potential changes to the Section 28 regulations.
That the province delay releasing the Phase 1 regulations until an opportunity has been provided to review and comment on the proposed Section 28 regulations.
Virtually all the water control structures built or acquired by a Conservation Authority were funded in part by the province. Grants were provided under various granting program criteria. The portfolio of water control structures owned by Otonabee Conservation is the legacy of the historic provincial granting programs going back to the early 1960’s.
The regulatory proposal identifies eligible water control structures as those that, “mitigate risk to life and property damage from flooding or supports low water augmentation.” It is possible that such a narrow eligibility criterion will result in only some water control structures being considered as mandatory while others will be classified as non-mandatory. Should member municipalities choose not to accept a levy to operate, maintain, repair, or even decommission the non-mandatory structures, they would effectively become orphaned. In this case, an Authority would be in an untenable position, owning dams for which there is no access to funding to fulfill the regulatory requirements under the Lakes and Rivers Improvement Act, to maintain them in a safe working order or to properly decommission them.
An Authority’s entire portfolio of water control structures should be included in the mandatory program and service regulation. This would provide an Authority with the ability to levy member municipalities for funding to deal with public safety and dam safety issues or to decommission structures no longer required.
Management of Conservation Lands
Similar to water control structures, much of a Conservation Authority’s lands portfolio was acquired with substantial funding from the province. Approximately 90% of Otonabee Conservation’s land holdings were acquired in the 1960’s and 1970’s and almost every property was acquired in part with significant provincial funding that was provided to achieve a variety of provincial program objectives at the time, including conservation, flood management, recreation, and forest management. The portfolio of lands owned by Otonabee Conservation is the legacy of the historic provincial granting programs.
Land ownership comes with ownership responsibilities that include maintaining title integrity, responding to unauthorized activities and mitigating hazards that affect public safety. These responsibilities are the minimal obligations all landowners have under the Occupiers Liability Act. These responsibilities represent the base cost of ownership and there needs to be a reliable source of funding to pay for these costs. These costs however are quite different from the costs associated with developing, operating and maintaining recreational amenities, infrastructure and services.
The consultation guide implies a rather arbitrary delineation between mandatory and non-mandatory lands. In essence, if nothing occurs on the lands, it is classified as mandatory. If something occurs, even if it is as insignificant as passive walking on a trail, the land is classified as non-mandatory. We believe there needs to be an alternate approach to dealing with this. An approach that recognizes the cost of ownership and distinguishing that from the cost of providing recreational amenities, infrastructure and services.
That basic ownership activities associated with managing and maintaining all the lands owned by a conservation authority be considered a mandatory program and service.
The requirements to prepare a strategy for the portfolio of Conservation Authority owned lands, an acquisition and disposition policy, and management plans for all properties will take some time to complete. These activities will also require incremental resourcing. The impact of the new costs can be mitigated in part by scheduling the work over a period of time. The proposed regulation is silent on when these requirements must be met. We suggest that a phase-in approach be adopted. Perhaps a 1-year period for preparing the portfolio strategy and acquisition and disposition policy, and perhaps up to 5 years to complete the management plans.
That the mandatory program and service regulations include a phase-in schedule for the preparation of the lands portfolio strategy, the acquisition and disposition policy and property management plans.
Source Protection Authority Responsibilities under the Clean Water Act
The proposed program and service appears to be consistent with what is currently being undertaken and which is currently being provincially supported through transfer payments. Should provincial funding change, the requirements and standards for this mandatory program should be revisited.
Mandatory Programs and Services Prescribed in Regulations
As discussed above, the concept of a watershed-based resource management strategy should be broadened to better address the government’s commitment of, “conserving natural resources.”
We also observe that the description in the consultation guide is conceptual in nature. A more detailed template or guidance document needs to be developed to support Conservation Authorities in the development of the watershed-based resource management strategy. In addition, the preparation of a watershed-based resource management strategy will take some time to complete and will require some additional resources for its preparation and implementation.
That the purpose of the watershed-based resource management strategy concept be broadened to better address the government’s commitment of conserving natural resources.
That the Ministry commit to a collaborative process for developing a guidance document for the preparation of a watershed-based resource management strategy.
That when the guidance document is in place a reasonable amount of time be provided to prepare the watershed-based resource management strategy.
With respect to Provincial Water Quality and Quantity Monitoring Program the consultation guide does not include the Ontario Benthos Biomonitoring Network.
That the Ontario Benthos Biomonitoring Network program be included as a prescribed monitoring program.
Costs Not Related to Delivery of Programs and Services
The inclusion of provisions for accommodating costs not related to the delivery of programs and services is strongly supported.
We anticipate that there will be many views on whether these administrative and overhead costs should be apportioned along the mandatory and non-mandatory program and service divide. This discussion and potential solutions could get unnecessarily complicated. And the costs associated with tracking and apportioning expenditures to the mandatory or non-mandatory column could become unnecessarily expensive. Its further complicated by the size of the Authority. We would advocate that a very simple practical approach be adopted.
That an approach to establish costs not related directly to the delivery of programs and services be simple and easy to apply.
Municipal Agreements and Transition Period
The proposed regulation for municipal agreements and transition period is in part dependent on the regulations dealing with fees, budgetary matters, and levies. These additional regulations have not yet been provided and the implementation of the Phase 1 regulations is dependent on them being in place in order to deliver on the expectation that the 2023 budget be based on the funding model being proposed.
When preparing a transition plan, a Conservation Authority must provide its member municipalities with information about the inventory of programs and services it provides and how they are funded, and to obtain member municipalities’ agreement that the inventory and the classification of each program and service is complete. The regulatory proposal is unclear on how to resolve a situation where a municipality disagrees with the material provided by the Conservation Authority.
That the municipal agreements and transition regulation include a dispute resolution mechanism.
That those other regulations (i.e., levy, budgeting and fees) that support the implementation of the municipal agreements and transition regulation be made available as soon as possible so that Conservation Authorities can meet the December 31, 2022, due date.
Community Advisory Boards
While we are not averse to the concept of a Community Advisory Board, there will be an ongoing need to distinguish the roles of the members of the Authority (governance) from the Advisory Board. This will require an ongoing effort and there may be some challenges along the way that should be recognized at the outset. It would also be helpful to understand when the province expects Community Advisory Boards to be established and operational.
That a reasonable timeline for establishing Community Advisory Boards be included in the regulation.
Section 29 Minister’s Regulation
The consolidation of existing Section 29 regulations is welcomed. Improvements to enforcement provisions would also be welcomed. The regulations should apply to all lands owned or controlled by a Conservation Authority, regardless of whether the lands are classified as mandatory or non-mandatory.
In summary we believe:
Some enhancements are needed to better address the government’s commitment to conserving natural resources.
That there is some risk to Conservation Authorities that the proposed mandatory and non-mandatory division will eliminate access to funding and by extension, impact an Authority’s ability to address public safety and dam safety risks in accordance with various regulatory requirements.
That the regulatory proposals introduce many new requirements that can not be reasonably delivered within a short time frame; a phase-in approach to implementation is required.
That some of the new requirements will require new funding. The impact of this can in part be mitigated through a phase-in approach to implementation.
Thank you for the opportunity to comment on the proposed Phase 1 regulations.
County of Peterborough
Lower Trent Conservation Authority
Ganaraska Region Conservation Authority
Kawartha Region Conservation Authority
Crowe Valley Conservation Authority