Brief Overview of the Legislative Framework for Erosion and Sediment Control in Ontario

1
Brief Overview of the Legislative Framework for
Erosion and Sediment Control in Ontario

• Paul Muldoon
• Canadian Environmental Law Association
• Toronto, Ontario

2
Outline

• Importance of the Topic
• How the Legislation Works
• Federal
• Provincial
• Municipal
• General Liability Regime
• Some Concluding Thoughts

3
Importance of Erosion Sediment Control

• Impacts on fish and fish habitat
• Water quality impacts
• Increases costs and decreases effectiveness of
  water treatment
• Affects aesthetics of receiving water
• Impacts benthic aquatic life

4
Federal Legislation

• Fisheries Act
• section 35(1)
• No person shall carry out any work on
  undertakings that result in the harmful
  alternation, disruption or destruction of fish
  habitat.
• section 36 (3)
• No person shall deposit or permit the deposit of
  a deleterious substance of any type in water
  frequented by fish

5
Federal Legislation

• Guidance Documents
• Example
• Fish Habitat Compliance Protocol (Draft) by Dept.
  of Fisheries and Oceans
• Policy for the Management of Fish Habitat

6
Federal Legislation

• Enforcement of the Fisheries Act
• Public Enforcement
• Summary conviction - up to 300,000 and /or 6
  months imprisonment
• Indictable Offence - up to 1 million and/ or 3
  years imprisonment
• Private Prosecutions
• eg. Examples fine allocation

7
Provincial Legislation

• Ontario Water Resources Act
• Planning Act
• Lakes and Rivers Improvements Act
• Drainage Act
• (Impending) Source Protection Legislation
• Etc.

8
Provincial Legislation

• Ontario Water Resources Act
• Section 30(1) Every person that discharges or
  causes or permits the discharge of any material
  of any kind into or in any waters or on any bank
  thereof ..that may impair the quality of the
  water of any waters is guilty of an offence.
• Sections 30-33 - establishes an approval regime

9
Provincial Legislation

• Ontario Water Resources Act
• deals with approvals for stormwater management
• guidance includes Stormwater Management
  Planning and Design Manual, 2003

10
Provincial Legislation

• General trend is a more robust planning regime
  for sustainable growth, such as Bill 26 (be
  consistent with) New Provincial Policy Statement
  (PPS) commitments to reform the Ontario
  Municipal Board.
• More specifically, new legislation expected this
  spring to protect sources of drinking water.
  Comprehensive regime where conservation
  authorities are key entities.

11
Provincial Legislation

• Planning Act is key legislative vehicle
• Where there is a development approval (such as
  plan for sub-division, change in land use), terms
  or conditions usually include erosion and
  sediment control provisions.
• Suggest such terms will be more closely be
  monitored and enforced.

12
Provincial/Municipal

• Section 142 of the Planning Act authorizes
  municipalities to pass Sediment and Erosion
  Control by-laws
• Purpose is to regulate activities that disturb
  natural ground conditions and alter soil and
  sediment distribution
• Examples include Ajax, Markham, Burlington

13
Provincial/ Municipal

• Most of the by-laws require
• permit to remove topsoil or site alteration
• control plan
• environmental site assessment
• condition of approval is the satisfaction for
  sediment and erosion control
• enforcement powers (up to a 10,000 fine, court
  orders for rehabilitation, cost recovery)

14
General Liability Regime

• When something goes wrong, general liability
  regime kicks in.
• Issues of negligence, regulatory negligence, and
  general liability issues are vital
• Often very costly and protracted.

15
Concluding Thoughts

• Legislative framework evolving
• Reflects growing importance of issue
• Public keen to participate
• Compliance is the best policy for everyone
  involved.