Background
Subsequent to the Gilmor V Nottawasaga ruling by the Divisional Court of Ontario, the Maitland Conservation Board of Directors passed a motion on May 18, 2016 that, “staff prepare a report outlining possible revisions to Maitland Valley Conservation Authority’s regulation policies for the Board to review”. The Board heard these revisions at the June 15, 2016 and the July 20, 2016 Board meetings and adopted the changes that staff recommended.
In December 2016, the Court of Appeal for Ontario heard the case and released its decision on May 23, 2017. The Court of Appeal set-aside the Divisional Court ruling and reinstated the Mining and Lands Commissioner’s decision.
Since the Divisional Court Ruling that necessitated the changes to Maitland Conservation regulation polices has been struck down, staff recommended to the Board that the original policies be reinstated. The Board adopted this recommendation at the June 21, 2017 Board meeting.
Maitland Conservation Regulation Policies Reinstated Subsequent to the Court of Appeal Ruling
Consideration of Ingress and Egress
1.6.3
The ability for the public and emergency operations personnel (police, firefighters, ambulance, etc.) to safely access a regulated feature during an emergency, such as a flooding event, is an important factor when considering any application for development. Proposals must be reviewed to ensure access to the proposed development is safe and appropriate for the proposed use. The provision of means by which people, vehicles and equipment can gain access to and from the regulated feature for maintenance and/or construction of remedial works must also be considered.
In the context of new development, the risks should be controlled by prohibiting development in dangerous or inaccessible portions of the regulated feature.
For existing development, safety risks are a function of the occupancy of structures, the susceptibility of the structure and the access routes to the structure. For existing development, the following factors should be considered:
- The degree of risk with the use of the existing access;]
- The ability to modify the existing access or construct a new safe access;
- The ability to find and use the access during an emergency; and
- The ability and willingness of the municipality (emergency vehicles) to use the access.
The risk can also be controlled by limiting the size (and therefore limiting the occupancy) of additions or reconstruction projects. If the risk is determined to be too great, no modifications/alterations/reconstructions of existing structures should be considered.
Technical Analysis for Erosion Hazards
3.2.2.2
When assessing an application for development within any type of valley system, consideration must be given to the ability for the public and emergency operations personnel to safely access through the valley system for emergency purposes, regular maintenance to existing structures or to repair failed structures.
Technical Standards for the Flooding Hazard
3.3.2.4
The ability for the public and emergency operations personnel (police, firefighters, ambulance etc.) to safely access the floodplain during regulatory flood events is a paramount consideration in any application for development within the riverine floodplain. Ingress and egress should be “safe” pursuant to Provincial floodproofing guidelines (MNR, 2002a). Depths and velocities should be such that pedestrian and vehicular emergency evacuations are possible. For minor additions and re-development on existing lots as a minimum, access should achieve the maximum level of flood protection determined to be feasible and practical based on existing infrastructure. In the absence of a site-specific detailed analysis, it is recommended that the depths for safe access not exceed 0.3 m and velocities not exceed 1.7 m/s. Despite provincial guidance, each CA may wish to be more restrictive based on the abilities of local emergency responders to access flooded lands and undertake emergency evacuation. As such, CAs are encouraged to discuss access into flooded lands with their local emergency responders to ascertain a maximum water level above which emergency access would no longer be possible.
Safety risks are a function of the occupancy of structures as well as the flood susceptibility of the structures and the access routes to those structures. Risk should be controlled by limiting the size and type (and thereby limiting the occupancy) of additions or reconstruction projects in dangerous or inaccessible portions of the Regulatory floodplain. Floodproofing measures should be in keeping with the standards of the River and Stream Systems Flooding Hazard Limit, Technical Guide – Appendix 6 (MNR, 2002a). Where floodproofing standards or safe access cannot be obtained for development, generally the development should be prohibited.
Regulation Allowances
3.3.2.5
To provide access and protection against unforeseen conditions, provincial guidelines recommend that development should generally be set back a minimum of 6 metres adjacent to erosion and flooding hazards (Sections 3.0 and 3.4, Erosion Access Allowance, Technical Guide – River and Stream Systems: Erosion Hazard Limit (MNR, 2002b)). MNR recommends that this setback not only be applied to the erosion hazards discussed in the sections above, but also adjacent to the flooding hazard because of the potential for erosion throughout the flooding hazard as a result of the flow of water during significant runoff events. For those situations where additional study is warranted to determine the development setback required to provide the required public safety and access, a study should be undertaken using accepted scientific, geotechnical, and engineering principles.
Protection of public safety and access, however, may not be sufficient to provide for all of the above noted requirements or purposes for the allowances. Additional technical studies by qualified professionals may be required to establish the appropriate extent and location of development within the allowance. A CA may also determine that a reduced development setback is appropriate where the existing development already encroaches within the recommended 6 metre setback, and where further development will not aggravate the erosion or flooding hazard.
Development within the Erosion Hazard of an Apparent (Confined) River or Stream Valley
3.4.1. (7) (g)
Development will not prevent access into and through the valley in order to undertake preventative actions/maintenance or during an emergency;
3.4.1. (9) (a)
Development will not prevent access into and through the valley in order to undertake preventative actions/maintenance or during an emergency
Development within the Erosion Hazard of a Not Apparent (Unconfined) River or Stream Valleys (Meander Belt)
3.4.3 (7) (b)
Development will not prevent access into and through the meander belt in order to preserve, maintain or repair the meander belt;
Development will not prevent access into and through the meander belt in order to undertake preventative actions/maintenance or during an emergency;
Development within One-Zone Regulatory Floodplain of River or Stream Valleys
3.4.5 (5) (c)
The proposed development will not prevent access for emergency works, maintenance, and evacuation
3.4.5 (7) (g)
Notwithstanding Section 2.4.1 (1), development associated with the construction of a driveway or access way through the Regulatory floodplain in order to provide access to lands outside of the Regulatory floodplain may be permitted subject to the provision of safe access as identified in Section 1.6.3 and if it has been demonstrated to the satisfaction of the Conservation Authority that there is no viable alternative outside of the regulated area and that the control of flooding, erosion, pollution, or the conservation of land will not be affected;
3.4.5 (11)
Notwithstanding Section 2.4.5.(1), the replacement/addition or construction of Agricultural Buildings and Structures (i.e. Barns, storage buildings, silos, etc.) may be permitted providing no alternative location exists on the subject property which is not subject to flooding. Buildings must be flood proofed depending upon the type of use proposed.
(a) Storage Buildings for Crops and Animal Waste must be wet flood proofed
(b) Storage Buildings for Equipment storage may be wet flood proofed
(c) Access must be no more than 0.5 meters of flooding if access is necessary at all times of year.
Development within the Allowance of the Regulatory Floodplain of River or Stream Valleys
3.4.6 (b)
Development does not impede access for emergency works, maintenance and evacuation;
Development within the Shoreline Flood Hazard
4.3.2 (5) (c)
Proposed development will not prevent access for emergency works, maintenance, and evacuation;
4.3.2 4.3.2 (7)
Notwithstanding Section 3.4.1 1), development associated with the construction of a driveway or access way through the shoreline flood hazard in order to provide access to lands outside of the flood hazard may be permitted subject to the provision of safe access as identified in Section 1.6.3 and if it has been demonstrated to the satisfaction of the Conservation Authority that the control of flooding, erosion, pollution, dynamic beaches or the conservation of land will not be affected;
Development within the Allowance Adjacent to the Shoreline Flood Hazard (Where there is no identified Dynamic Beach)
4.3.3 (b)
Development does not impede access for emergency works, maintenance and evacuation;
Development within the Shoreline Erosion Hazard
4.3.4 (d)
Development will not prevent access into and along the shoreline erosion hazard in order to undertake preventative actions/maintenance or during an emergency;
Development within the Allowance Adjacent to the Shoreline Erosion Hazard
4.3.5 (b)
Development does not impede access for emergency works, maintenance and evacuation;
Development in the Floodfringe 8.4.1 (1)
Ingress and egress to new structures will be designed so that vehicular and/or pedestrian access is not prohibited during times of flooding
Additional Shoreline Policies
The Maitland Conservation Board of Directors also approved two additional shoreline policies at the June 21, 2017 Board meeting.
The MVCA has identified 950 structures within the flood and erosion hazard in its watershed along the Lake Huron Shoreline. Where sudden flooding or erosion puts a structure at imminent risk of damage, it is expected that in many cases the landowners will want to move the structure away from the hazard as soon as possible. Staff would like to ensure that the policy framework encourages an expedient relocation of the structure to prevent unnecessary property damage.
Additionally, virtually the entire shoreline that Maitland Conservation regulates is serviced by private on-site sewage treatment. Staff identified a gap in the current policies that would prevent the replacement of a failing (polluting) sewage system, if the system is at risk of erosion in the next 25 years. Given that it is prudent to fix failing sewage systems, staff recommended to the Board that the Shoreline policies be amended to allow this to occur.
To address both issues, the following two additional policies were added to Maitland Conservation’s Shoreline Policies:
4.3.1.5 Emergency Works to Relocate Structures
In the event of a flooding or erosion emergency where existing structures are at imminent risk, the Conservation Authority shall expedite the application process to relocate the structure to the furthest location away from the hazard as feasible on the lot. The Conservation Authority must be satisfied that the relocated structure will not affect the control of flooding, erosion, pollution, dynamic beaches or the conservation of land.
4.3.1.4 (2) (iii) On-site Sewage Disposal Systems
In addition to the existing clause:
If the existing system is deemed to have failed by the Huron County Health Unit and there is no alternative location that would allow for 25 years of protection, the system may be replaced in the safest location feasible provided that the system is not enlarged beyond the capacity required for the existing development.
If you have questions regarding these changes, please contact the Maitland Conservation office by email at [email protected] or call 519-335-3557.