A.2.10 RELATIONSHIP OF PROJECTS WITHIN THE CLASS EA TO OTHER LEGISLATION

This Class EA process can be conducted in such a way as to ensure compliance with other environmental legislation. The Class EA process, however, does not replace or exempt the formal processes of other applicable federal, provincial and municipal legislation and municipal by-laws, such as permits or approvals and the specific public and agency consultation that they may require. Where possible, duplication between the Class EA process and other formal approval processes should be avoided.

It is well beyond the scope of this document to outline all the potential legislation and regulatory requirements of municipal projects. It is, therefore, the responsibility of the proponent to ensure that all requirements are met.  Furthermore, good project management will endeavour to do this in a streamlined and efficient manner in order to minimize duplication where possible.

The relationship to the following provincial legislation is discussed in the following sections:

• Planning Act                                    see Section A.2.9
• Municipal Act, 2001                        see Section A.2.10.1
• Ontario Water Resources Act /        see Section A.2.10.2

    Environmental Protection Act

• Consolidated Hearings                     see Section A.2.10.3
• Ontario Regulation 586/06              see Section A.2.10.4

Drainage Act                            see Section A.2.10.5

Other key provincial legislation includes:

• the Provincial Policy Statement (PPS);
• the Oak Ridges Moraine Conservation Act 2001, and the Oak Ridges Conservation Plan enacted in 2001;
• the Ontario Safe Water Drinking Act, 2002 and its regulations;
• the Nutrient Management Act, 2002 and its regulation;
• the Niagara Escarpment Plan;
• the Greenbelt Plan;
• Places to Grow Act;
• Ontario Heritage Act;
• Ontario Regulation 116/01 (Electricity Regulation);
• Clean Water Act, 2006;
• Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement, December 2005;
• Safeguarding and Sustaining Ontario’s Water Act, 2007.
• In addition it should be noted that Section 3.3(1) of the Ontario EA Act removes traffic calming from being subject to the Ontario EA Act.

Municipal projects must also comply with the requirements of the Canadian Environmental Assessment Act (CEAA) where applicable. This is discussed in Section A.2.11. In addition, there are a number of Federal Acts that are relevant to municipal projects including:

• Fisheries Act (see Section A.2.11.1).
• Navigable Waters Protection Act (see Section A.2.11.2).
• Species at Risk Act (see Section A.2.11.3).
• Migratory Birds Convention Act.

Canadian Transportation Act.

Federal agencies have prepared a document entitled, “Information Requirements for Municipal Class Environmental Assessment Projects – Guidance Document”. The focus of this Guidance Document is on projects for which Fisheries and Oceans Canada, Transport Canada (Navigable Water Protection Program), Environment Canada and Industry Canada are involved, since these are the departments that most frequently have an interest in municipal projects.

A.2.10.1 Municipal Act

The Municipal Act sets out the powers of municipalities and the division of responsibilities in all municipal systems. It provides the authority under which municipalities may operate. Proponents are urged to co-ordinate requirements under the EA Act and the Municipal Act where possible and appropriate, for example, public notification.

A.2.10.2 Ontario Water Resources Act/Environmental Protection Act

As a matter of good practice and to ensure its currency, municipalities and private sector proponents should undertake a review of the documentation prepared in accordance with section A.2.9.4 if the infrastructure has not been constructed within ten years. The municipality may also apply conditions to planning approvals to require review of the documentation prepared in accordance with section A.2.9.4 if the infrastructure has not been constructed within ten years.

Technical Approvals:

Municipal sewage, stormwater management and water systems must receive approval under the Ontario Water Resources Act (OWRA). Certain other sewage projects (e.g. processed organic waste, biosolids management activities including biosolids disposal and utilization) must receive approval under the Environmental Protection Act (EPA). The EA Act and, hence, the Class EA process is oriented towards the general planning decisions associated with the development of a project. Water and wastewater facilities involve relatively complex technology, and for this reason engineering decisions must be reviewed in greater detail than the scrutiny normally afforded by EA Act review of engineering issues. Therefore, technical consultation with the Ministry of the Environment is recommended for all complex projects involving construction of water supply and treatment, and sewage treatment and disposal systems.

In addition, other approvals, legislation, policies and guidelines may apply. In most instances, stormwater management projects will require approval from any or all of the following: local municipality, local conservation authority, federal Department of Fisheries and Oceans, Ministry of Natural Resources and Ministry of the Environment. The Class EA process does not relieve proponents from the responsibility to meet all such requirements; rather, it presents an opportunity to identify the appropriate approval agency early in the process and to co-ordinate these requirements in a systematic manner.

Certificates of Approval:

For projects being planned under this Class EA, approval under the OWRA and the EPA is issued only after the termination of the 30-day review period following filing of the ESR in the public record (or, if appropriate, submission of an addendum to the ESR), or, in the case of Schedule B undertakings, after the termination of the 30-day review period following filing of the Notice of Completion. If a request for a Part II Order is received (see Section A.2.8), the approval can be issued only after the Minister has made a decision on whether or not the project should comply with Part II of the EA Act.

Proponents will be required to demonstrate they have completed the EA process when submitting applications under the Environmental Protection Act and Ontario Water Resources Act. Proponents are requested to provide copies of Notices of Completion and confirm that no Part II Order requests are outstanding.

Hearings:

Both the OWRA and the EPA contain provisions for holding hearings on municipal sewage and water projects. Thus, projects developed under Class EA procedures could be subject to hearings under the OWRA and the EPA, and could also be subject to hearings under the EA Act, if their status is changed to that of an individual EA.

Regulations have, therefore, been passed under the OWRA (0. Reg. 207/87) and EPA (0. Reg. 206/87) which dispense with hearings under these Acts for Class EA projects except that hearings are still required for water or wastewater projects that extend services beyond the Public Water and Sewage Service Areas created under Section 74, OWRA, R.S.O. 1990.

The following three scenarios summarize the procedure a project may follow in respect to the EA Act and the OWRA and the EPA:

a) No Part II Order/No Hearing

A project is planned under Class EA procedures. The project complies with all of the requirements of the Class EA and final design is approved under the OWRA or EPA.

b) Individual EA/No Hearing

A project is planned under Class EA procedures. The Minister requires the proponent to comply with Part II of the EA Act (i.e. conduct an individual EA). All concerns are resolved during the course of the individual EA process and a hearing is not required.

Once approval under the EA Act is received, final approval may be given under the OWRA or the EPA.

Approvals are still required under other legislation.

Where possible, other approvals should be co­ordinated with the Class EA process.

c) Individual EA/EA Act Hearing

A project is planned under Class EA procedures. The Minister requires the proponent to comply with Part II of the EA Act (i.e. conduct an individual EA) and the Minister requires that a hearing under the EA Act be held. The hearing would deal with all matters at issue. Once the Board's decision is given and approval under the EA Act is received, final approval may be given under the OWRA or the EPA.

In this event, the proponent may combine the hearings under the Consolidated Hearings Act, under which all issues are dealt with by the same hearing panel.

A.2.10.3 Consolidated Hearings Act

A Class EA project whose status is changed to an individual EA, may become subject to hearings under several provincial statutes. For example, hearings might be required:

• under the Ontario EA Act.
• before the Ontario Municipal Board, to allow the municipality to enter into debt financing.
• under the Planning Act, e.g. where an Official Plan (or amendment) has been referred to the Ontario Municipal Board (OMB) by the Minister of Municipal Affairs and Housing or a delegated authority, or where a related zoning by-law has been appealed to the OMB.
• under the Expropriations Act to acquire land or property.

In this event the proponent may combine the hearings under The Consolidated Hearings Act, under which all issues are dealt with at one hearing.

A.2.10.4 Ontario Regulation 586/06

Previously, municipal works pursuant to the Local Improvement Act were Schedule A projects under the Municipal Class EA. The Local Improvement Act has essentially been replaced by Ontario Regulation 586/06. Accordingly, projects planned and approved under this Regulation are considered to be Schedule A projects under the Municipal Class EA. It should be noted that in many cases a petition from adjacent property owners is required prior to implementation. Where there are significant public concerns, the municipality may conclude to proceed under the Class EA.

A.2.10.5 Drainage Act

Ontario Regulation 287/07 lists the ‘prescribed’ drinking water threats. However additional ‘local’ threat activities could have also been added by the local Source Protection Committee. For assistance in determining whether an activity associated with the construction or operation of projects covered by this Class EA are a drinking water threat, proponents can contact the local Conservation Authority/Source Protection Authority.

Drainage works regulated under the Drainage Act are exempt from the Ontario EA Act.

A.2.10.6 The Clean Water Act

The purpose of the Clean Water Act (CWA) is to protect existing and future sources of municipal drinking water. Under the CWA, vulnerable areas have been delineated around surface water intakes and wellheads for every existing and planned municipal residential drinking water system that is located in a Source Protection Area (SPA). These vulnerable areas are known as a Wellhead Protection Areas (WHPAs) or surface water Intake Protection Zones (IPZs). Details regarding the location of vulnerable areas will be available in approved Source Protection Plans/Assessment Reports and from the Conservation Authority/Source Protection Authority.

Source protection plans set out the local approach to protecting sources of drinking water.  Where an activity poses a risk to drinking water, policies in the local source protection plan may impact how that activity is undertaken.  Policies may prohibit certain activities, or they may use certain tools to manage these activities.  Municipal Official Plans, planning decisions, Municipal Class EA projects (where a project includes a drinking water risk) and prescribed instruments must conform with policies that address significant risks to drinking water and must have regard for policies that address moderate or low risks.

Projects Located Within A Vulnerable Area:

Projects being proposed in a vulnerable area may pose a risk to drinking water and may be subject to policies in a source protection plan.  When projects are proposed within a vulnerable area, the policies in source protection plans must be considered and the impact of the policies on those who may need to implement the policies or those who are otherwise impacted (e.g. land owners) should be given adequate consideration during the planning stage. Proponents undertaking a Municipal Class EA project must identify early in their process whether a project is or could potentially be occurring within a vulnerable area; this would fall within Phase 1 of the Class EA process and must be clearly documented in the project file or Environmental Study Report (ESR), as may be appropriate.

Projects that create new or amended vulnerable areas:

For any proposed projects that alter or result in new vulnerable areas, the vulnerable areas will have to be incorporated into updated Source Protection Plans/Assessment Reports. Examples of such projects include but are not limited to: municipal well or surface water intake (existing or draw on a new source of drinking water), new storm sewersheds due to new development (which can expand an intake protection zone).   When this happens, landowners within new or amended vulnerable areas (IPZs or WHPAs) will be subject to source protection plan policies.   These policies may impact existing or proposed land uses and the activities carried out by landowners. To fully understand the impact of establishing a new or expanded drinking water systems, it is recommended that the technical work required by the CWA to identify the vulnerable areas and potential drinking water threats be undertaken concurrently with the Municipal Class EA process. This will facilitate the assessment of potential impacts and allow a more comprehensive consultation process with potentially affected stakeholders. Coordinating this work will also expedite Source Protection Plan/Assessment Report amendments to incorporate the new system or any changes to existing systems that may be required. It will also minimize the likelihood of Municipal Class EA proponents having to amend completed Municipal Class EA projects to reflect the technical work required by the CWA.

For further clarity, the proponent can contact the Conservation Authority/Source Protection Authority.