AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:
Conservation Authorities in Ontario are authorized by the Conservation Authorities Act (the “Act”) to make regulations “prohibiting, regulating or requiring
the permission of the authority for straightening, changing, diverting or
interfering in any way with the existing channel of a river, creek, stream or
watercourse, or for changing or interfering in any way with a wetland”. Authorities can also make regulations
“prohibiting, regulating or requiring the permission of the authority for
development if, in the opinion of the authority, the control of flooding,
erosion, dynamic beaches or pollution or the conservation of land may be
affected by the development”. There is
almost no area within Southern Ontario that is not subject to a regulation
passed by a local or regional Conservation Authority. However, generally, these regulations can
only apply to river or stream valleys, hazardous lands or wetlands – “regulated
areas” or “zones”.
What constitutes a regulated area or zone is not always obvious. For instance, a river or stream valley
doesn’t actually have to contain a watercourse – the regulations can apply to
areas with “depressional features associated with a river or stream”. The Act defines “hazardous land” as “land
that could be unsafe for development because of naturally occurring processes
associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”,
but doesn’t define what might be unsafe.
To be considered “wetland” under the Act, land must meet the following
four highly technical requirements (and not fall under the exception):
(a)
be seasonally or
permanently covered by shallow water or have a water table close to or at its
surface,
(b)
directly contribute
to the hydrological function of a watershed through connection with a surface
watercourse,
(c)
have hydric soils,
the formation of which has been caused by the presence of abundant water, and
(d)
have vegetation
dominated by hydrophytic plans or water tolerant plants, the dominance of which
has been favoured by the presence of abundant water, but not be periodically soaked
or wet land that is used for agricultural purposes and no longer exhibits a
wetland characteristic referred to in clause (c) or (d). [emphasis added]
The regulation of development also applies to “other areas where
development could interfere with the hydrologic function of a wetland,
including areas within 120 metres of all provincially significant wetlands and
areas within 30 metres of all other wetlands.”
In a prosecution by a Conservation Authority for development in a
regulated area without a permit or for interference with a wetland, the
Authority must establish beyond a reasonable doubt that the activity carried
out by the party charged occurred within a regulated area. The Ontario Court of Justice recently
dismissed charges against a farmer related to clearing work carried out in 2019
because the Conservation Authority failed to prove beyond a reasonable doubt
that the area cleared was a wetland, as was alleged by the Authority. The farmer had removed trees and vegetation
from a “wooded area” located between tile-drained cultivated land to the north
and east and intersecting drainage ditches to the south and west. The land was cleared to extend the tile
drainage system and bring the land under cultivation. After receiving an anonymous complaint about
trees being removed from the farmer’s property and conducting a further
investigation, the Conservation Authority laid various charges, including a
charge for interference with a wetland.
At trial, both the Conservation Authority and the farmer called expert
witnesses to testify on the question of whether the area cleared was, in fact,
a wetland. The Authority called one of
its employees who had taken soil samples from the cleared area a few months
after the clearing work was completed and took photos. She confirmed that on her visit to the site
in the midst of the spring thaw in April, 2020 she did not observe water on the
cleared area. She confirmed that she did
not encounter the water table in any of her examinations of the area. However, the Conservation Authority’s expert
witness did say that the clay soil and “orange soil” she encountered could be
indicators of hydric soils. Also, she
observed vegetation that she considered to be “hydrophytic plants” adjacent to
the cleared area and in the piles of cleared vegetation or “slash piles”. The Authority’s expert’s opinion was that the
cleared area met the statutory definition of a wetland.
The farmer’s expert witness dug two 1-metre-deep pits just outside the
cleared area to assess the soil in the cleared area. His opinion was that hydric soils must
contain gley soil, a rich grey clay-like soil.
The farmer’s expert did not encounter any gleys. While he did find that the soils were
imperfectly drained and opined that imperfectly drained soil could be considered
hydric soil depending on the vegetation present, his conclusion was that the
cleared area was not a wetland within the meaning of the term used in the Act.
The Justice of the
Peace presiding over the case observed that there was no evidence that the
cleared area was seasonally covered by water, that any hydric soils present
were caused because of an abundance of water in the area, or that hydrophytic
or water tolerant plants dominated the area (as favoured by an abundance of
water). As such, three of the four
requirements for a “wetland” under the Act were not met and the wetland
interference charge had to be dismissed.
