Wetland Regulation in Ontario

The Planning Actand the Provincial Policy Statement (PPS) Ontario’s primary method of wetland protection comes via the Provincial Policy Statement (PPS) under the Planning Act. The Planning Act can be read on-line at www.e-laws.gov.on.ca ; and PPS can be read on-line at www.mah.gov.on.ca. The Act requires that planning authorities (municipalities and the Ontario Municipal Board [OMB]) "have regard to" the policies in the PPS, which does not mean that they must adhere to these policies. In December 2003, the provincial government tabled a bill in the Legislature to amend the Planning Act to state that planning authorities’ decisions must "be consistent with" the PPS, which is a real improvement. The bill is expected to receive final approval in the spring of 2004.

For purposes of wetland protection under the PPS, Ontario is divided into two regions: (a) the area south and east of the Canadian Shield (the Precambrian Shield); and (b) the rest of Ontario, i.e, on the Canadian Shield. Zooming in on the Great Lakes Basin in Ontario, "south and east of the Shield" includes most of the Lake Ontario watershed, all of the Lake Erie watershed, a minority portion of the Lake Huron watershed (i.e., much of it in Ontario is on the Shield), and none of the Lake Superior watershed (which is all "Shield country").

In the PPS, wetlands are defined as follows:

"lands that are seasonally or permanently covered by shallow water, as well as lands where the water table is close to or at the surface. In either case the presence of abundant water has caused the formation of hydric soils and has favoured the dominance of either hydrophytic plants or water tolerant plants. The four major types of wetlands are swamps, marshes, bogs and fens. Periodically soaked or wet lands being used for agricultural purposes which no longer exhibit wetland characteristics are not considered to be wetlands for the purposes of this definition."

Wetlands south and east of the Canadian Shield are protected under the PPS as follows:

Development and site alteration will not be permitted in significant wetlands south and east of the Canadian Shield. " Significant" means, in regard to wetlands, "an area identified as provincially significant by the Ministry of Natural Resources using evaluation procedures established by the province, as amended from time to time." Hence the commonly used term Provincially Significant Wetlands (PSWs). PSWs are identified and evaluated (in some cases) and approved (in all cases) by the Ontario Ministry of Natural Resources. "Development" means "the creation of a new lot, a change in land use, or the construction of buildings and structures, requiring approval under the Planning Act; but does not include activities that create or maintain infrastructure authorized under an environmental assessment process; or works subject to the Drainage Act." " Site alteration" means "activities, such as fill, grading and excavation that would change the landform and natural vegetative characteristics of a site."

Wetlands on the Canadian Shield are protected under the PPS as follows:

Development and site alteration may be permitted in significant wetlands on the Canadian Shield if it has been demonstrated that there will be no negative impacts on the natural features or the ecological functions for which the wetland is identified. "Negative impacts" means "the loss of the natural features or ecological functions for which an area is identified." "Ecological functions" means "the natural processes, products or services that living and non-living environments provide or perform within or between species, ecosystems and landscapes. These may include biological, physical or socio-economic interactions."

Comparing Wetlands Protection on and off the Canadian Shield

In short, Ontario wetlands that are on the Canadian Shield do not receive very good protection. It is the responsibility of municipalities to decide whether or not they wish to protect wetlands, and which ones they wish to protect, by means of the policies in their Official Plans (i.e., land use plans). Since (as noted above) development and site alteration may be permitted in a "significant" wetland on the Canadian Shield if it has been demonstrated (via an Environmental Impact Statement or EIS) that there will be no negative impacts on the natural features or the ecological functions for which the wetland has been identified, a developer may hire a consultant to produce an EIS that shows there will be no negative impacts. A citizens group may appeal to the Ontario Municipal Board a municipality’s approval of a developer’s plan to develop in a wetland on the Shield, but the language of the PPS and the Planning Act do not much favour Shield wetlands if they end up at an appeal hearing before the OMB.

The situation is better for wetlands that are south and east of the Shield. Municipalities south and east of the Shield are supposed to protect PSWs through the policies in their Official Plans. But (as noted above) the definition of "development" in the PPS excludes most infrastructure projects, meaning (for example) that a road or highway could be rammed right through the middle of a PSW, thereby totally destroying or at least fragmenting the habitats and compromising the wetland’s ecological functions.

Nowhere in Ontario, whether on the Shield or south and east of the Shield, are "regionally significant" and "locally significant" wetlands protected through the PPS. Municipalities can identify these wetlands as such and protect them in their Official Plans. However, the Implementation/Interpretation section of the PPS states that "nothing in this policy statement is intended to prevent planning authorities [i.e., municipalities and the Ontario Municipal Board] from going beyond the minimum standards established in specific policies, in developing official plan policies and when making decisions on planning matters, unless doing so would conflict with any other policy" In practice, developers try hard, and are often successful in persuading a municipal council - or a hearing officer at the Ontario Municipal Board, to which municipal decisions can be appealed by the developer, a citizens’ group, etc. - to decide that protecting one or more of these regionally and locally significant wetlands would conflict with other policies in the PPS. (The PPS has policies relating to housing, infrastructure, agriculture, aggregate extraction, etc.) Equally, an OMB hearing officer may decide that a regionally or locally significant wetland is worth protection and therefore rule in its favour. (There are two avenues to appeal a decision of the OMB, but they are rarely successful.)

Buffer Zones (Adjacent Lands)

The PPS states that "development and site alteration may be permitted on adjacent lands [adjacent to significant wetlands south and east of the Canadian Shield; and adjacent to significant wetlands on the Canadian Shield] if it has been demonstrated that there will be no negative impacts on the natural features or on the ecological functions for which the area [wetland] is identified." "Adjacent lands" means "those lands contiguous to a specific natural heritage feature or area [i.e., wetland], where it is likely that development or site alteration would have a negative impact on the feature or area. The extent of the adjacent lands may be recommended by the Province or based on municipal approaches which achieve the same objectives."

The Ministry of Natural Resources (MNR), in 1999, published the Natural Heritag Reference Manual for Policy 2.3 of the Provincial Policy Statement to assist municipalities in interpreting, for example, the PPS wetlands policies. In it, MNR "recommends that adjacent lands are those lands within 120 metres [about 400 feet] of individual significant wetlands or, in the case of wetland complexes, within 120 metres of individual wetlands comprising the complex. This recommended adjacent land width was chosen because it is known that developments within 120 metres of wetlands have a reasonable probability of affecting the ecological functions of the wetlands which they surround, and because wetland species are often dependent on adjacent lands for activities such as nesting, resting, feeding or shelter. Site-specific evaluations based on the considerations noted above may demonstrate the need for greater or lesser distances for adjacent land widths." In practice, developers’ wetland consultants may recommend an adjacent land or buffer width much less than 120 metres, such as 30 metres (= about 100 feet).

Evaluating Wetlands for Protection under the Planning Act and the PPS

Wetland evaluators use the Ontario Wetland Evaluation System (OWES) Manual in order to determine whether a particular wetland should be designated a Provincially Significant Wetland (PSW). A northern Ontario version and a southern Ontario version of this manual are in print and are available for $25 (Can.) from the Wetlands Research Centre, University of Waterloo, 200 University Avenue West, Waterloo, Ontario N2L 3G1, (519) 885-1211 ext. 5244 or 3607, or bwarner@uwaterloo.ca. The wetland evaluation ranks a wetland in four categories - biological, hydrological, special features, and social, each having a maximum score of 250 points. If a wetland scores above 600 points in total or more than 200 points in either the biological or special features categories, then the wetland is considered a PSW. Citizens can evaluate wetlands using this process, typically after taking a training course on wetland evaluation.

Municipal Protection of Wetlands

Ontario municipalities - local ("lower-tier") municipalities (towns, townships, cities) and "upper-tier" municipalities (counties and regional municipalities) - can designate locally and regionally significant wetlands in their Official Plans, in addition to Provincially Significant Wetlands. As noted above, locally and regionally significant wetland designations may or may not "survive" the test of a hearing before the Ontario Municipal Board if a developer argues that preserving the wetland conflicts with other policies in the PPS.

Indirect Protection of Ontario Wetlands

Other legislation that indirectly protects wetlands in Ontario includes the federal Fisheries Act, the federal Migratory Birds Convention Act, and the Canadian Environmental Assessment Act. The new federal Species at Risk Act should protect critical habitat areas of species at risk. Wetlands are protected via Ontario legislation indirectly through the Fish and Wildlife Conservation Act, the Endangered Species Act, the Lakes and Rivers Improvement Act, the Conservation Land Act, the Conservation Authorities Act, the Environmental Assessment Act, the Ontario Water Resources Act, the Niagara Escarpment Planning and Development Act, and the Oak Ridges Moraine Conservation Act. One provincial statute that actually works against wetland protection is the Drainage Act. Historically in Ontario, wetlands were valued only in that they could be drained, primarily for agricultural purposes. Not only is land drainage permitted under the Drainage Act, but is encouraged by a system of grants. All Ontario statues (acts) are available on-line at www.e-laws.gov.on.ca.

Concluding Information

Southern Ontario, where most of the farmland and most of the population of the province are based, has lost 70-80 percent of its wetlands since the time that European settlement began. Most of the loss has occurred due to draining for agriculture and other human uses of the land. Therefore, we have lost the vital ecological functions provided by wetlands and the increased biodiversity that wetlands provide. The remaining wetlands, both in the north and the south, are havens of biological richness, and include marshes, swamps, bogs and fens. The importance of protecting the remaining wetlands emerged in the 1970s, but it was not until 1992 that Ontario had wetland protection enshrined in provincial policy under the Planning Act.

Even though wetlands protection is in need of much improvement in Ontario, there have, indeed, been some great wins in recent years, in which Ontario Municipal Board hearing officers have ruled in favour of protecting PSWs both on and off the Shield - e.g., at Cloud Bay (on the Shield in the Lake Superior watershed, where a seasonal trailer park was proposed), at Marshfield Woods (in the Lake Erie watershed, where a golf course was proposed), and at Victoria Point on Lake Simcoe (in the Lake Huron watershed, where a major lagoon-based residential development was proposed).

A good feature of Ontario wetlands policy is that we do NOT have any "no net loss" policies or "mitigation banking." When the Provincial Policy Statement says you cannot develop in a Provincially Significant Wetland (PSW), that’s it; i.e., it does not mean that you can trade development in the PSW for the creation or protection of a wetland somewhere else.

Contact:
Ontario Nature - Federation of Ontario Naturalists
www.ontarionature.org
info@ontarionature.org