Fill Issues and Conservation Authorities

A 2010 ClOCA Report indicated the following, “there has been an apparent increase in demand for large fill sites within and adjacent to the Greater Toronto Area”, and “given the competitiveness of the trucking industry, haulers are being pressured to transport fill of any nature”. Conservation Ontario recognized soil management as an important issue effecting Conservation Authorities and documented this in the 2012 Conservation Ontario Discussion Paper.

By virtue of the Municipal Act, Section 142, site alteration by-laws can only be enforced by municipal staff in areas which are not subject to regulations made under Clause 28(1) of the Conservation Authorities Act.
CA’s issue “Development, Interference with Wetland, Alterations to Shoreline”, permits. They do not currently issue “fill permits” the way a municipality could with all the various considerations.

The CA may grant permission for “development”, which includes fill placement within Regulated Areas provided it has been determined that there will not be an adverse effect on the following five tests:

•    Control of flooding;
•    Erosion;
•    Dynamic beaches;
•    Pollution; or
•    Conservation of land.

It can be argued that only two of these tests really allow for conditions of any consequence to be put on the CA permit that approves a large fill site-namely “pollution and conservation of land”.

There are concerns with some of the current definitions in CA regulations and how they are interpreted by various conservation authorities.  Some CAs, like Ganaraska Region Conservation Authority, have indicated that they may only be able to impose permit conditions regarding “pollution” and “conservation of land” that effect the specific feature-ie. the wetland and not the land around the wetland-hence not the groundwater if the groundwater does not directly affect the wetland (Ganaraska Conservation Authority Report 2011 – Morgan’s Rd. Application). This is a serious concern.

Action Required:

1.    Conservation Authorities need to exercise their own due diligence and ensure the placement of fill within their regulated areas will not have an adverse impact on the environment.
CA’s need to adopt Large Fill Policies similar to the policies adopted by the KRCA (Kawartha Region Conservation Authority: Large Fill Procedural Guideline) and CLOCA (Central Lake Ontario Conservation Authority: Large Fill Policy)
The fill policy should include necessary conditions as found in the CLOCA and KRCA fill polices, including those requirements listed below:
•    Table 1 soils only on lands with no previous point source contamination-consistent with current KRCA and CLOCA policies
•    Frequent testing of incoming fill at the receiving site following MOE’s protocol for soils coming into an RSC property, i.e. 1 sample for every 160 cubic metres of incoming fill (MOE Fact Sheet: Bringing Soil to an RSC Property, April, 2011)
•    Proponent paid  audit tests of incoming fill by CA staff or a CA hired consultant
•    Mandatory QP (qualified person as defined by O. Reg. 153) reviewing and signing off on source site soil reports at the receiving site
•    Proponent paid CA consultant peer review of incoming soil reports
•    Mandatory securities obtained reflecting  the size of the fill operation

2.    The MNR needs to develop regulations that allow conservation authorities to go beyond the constraints of meeting the “five tests” so that social and various environmental issues such as groundwater contamination concerns can be purposely considered when permits are issued by conservation authorities. Various key definitions in CA regulations are also lacking and need significant attention if CA’s are going to be able to apply their regulations in a consistent manner across the province. May 2011 Motion by the Ganaraska Region Conservation Authority Regarding Fill Operations in Conservation Authority Regulated Areas