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Regulation Proposal Notice:   EBR Registry Number:   011-7669
Title:
Modernization of Approvals – Proposed Regulatory Amendments to Work Permits issued under the Public Lands Act
 
Ministry:
Ministry of Natural Resources
Date Proposal loaded to the Registry:
December 05, 2012
 
 
Keyword(s):   Land  |  Mining  |  Legislation
The comment period for this proposal is now over.
 
Description of Regulation:

MNR’s Modernization of Approvals Initiative

In September 2012, the Ministry of Natural Resources (MNR) posted a Modernization of Approvals policy paper (EBR Registry Number: 011-6751) for comment for a period of 47 days, which closed on November 13, 2012.

This paper and the following proposed regulatory amendments are part of MNR’s plan to modernize our business where we can, focus more closely on our core mandate, and review our programs and services to become more efficient and sustainable.

As described in the policy paper, MNR is reviewing approvals it currently issues to consider the following alternative approaches:

  • Removing regulatory control, including eliminating the need for approvals from MNR, where for example, an activity will have little or no potential impact since another organization now regulates the activity
  • Reducing the number of approvals required from MNR by establishing rules in the form of a regulation that clients must comply with
  • Moving some approvals from paper-based processes to an automated electronic registry where businesses and individuals register their activities and where rules are established in regulation
  • Retaining the current application and review approach for certain approvals, while taking advantage of opportunities to use technology to streamline where possible.

The proposed regulatory amendments described below are the first in a series of proposed amendments to specific approvals that are being put forward for public comment as part of this review. These proposals are based on an evaluation of key considerations described in the policy paper including potential impacts on public health and safety, natural resources, social and cultural uses of natural resources, the economy, and public expectations of government.

As MNR modernizes our business, the goals are to:
• continue to deliver on our commitment to protect and sustainably manage natural resources
• provide faster and improved services and reduce the burden on individuals, business and government
• review the fees charged for approvals to ensure that services are cost-effective

Public Lands Act Work Permits: Current Regulatory Approach

Work permits are a regulatory tool used by the Ministry of Natural Resources to control specified activities occurring on public lands and shore lands (lands covered or seasonally inundated by waters), which includes the beds of most navigable waters, and shore lands.
The majority of work permits are issued to individuals for activities adjacent to their property (e.g. an erosion control structure on shore lands) or to gain access to their properties (dredging around a dock for boat access). A limited number of work permits are issued to municipalities and private industry for commercial undertakings.

MNR also issues land use occupational authority under the Public Lands Act such as land use permits and leases. No changes are proposed to these authorizations at this time (i.e. not part of this proposal).

Under the Public Lands Act, O. Reg. 453/96 currently requires that MNR issue a work permit, subject to restrictions laid out in O. Reg. 975, for construction activities on Crown land. Construction activities currently defined in the regulation are: construct or place a building on Crown land; construct a road, trail or watercrossing on Crown land; dredge or fill shore lands; remove aquatic vegetation in the area set out in Schedule 1 (generally known as on and north of the Canadian Shield), remove aquatic vegetation >100m2 in Schedule 2 (generally known as off the Canadian Shield); and construct or place a structure that occupies more than 15m2 of shore lands.

Introduction to Proposed Changes

MNR is proposing to amend O. Reg. 453/96 (and consequential amendments to other relevant regulations). The proposed changes focus on:

  • Eliminating work permit requirements if rules are followed (for activities with minimal impacts that can be managed through rules in regulation).
  • Eliminating work permit requirements if rules are followed and the Ministry is notified. MNR would require that certain activities be registered with the Ministry to facilitate compliance responses.

For activities described in the regulation, persons undertaking an activity according to the rules in regulation would be responsible for complying with all other federal, provincial or municipal requirements.

Proposals to Replace Work Permits with Rules in Regulation or Registration with Rules in Regulation

i) Category: Rules in Regulation for Activity

Explanation of Category: Proponents would no longer be required to obtain work permits for activities in this category but would be required to comply with rules set out in regulations under the Public Lands Act. Projects that do not comply with the proposed rules would require a work permit.

Affected Work Permit Requirements:

• Maintenance dredging
• Restoring, repairing or replacing an existing erosion control structure
• Relocation of rocks and/or boulders for boating and swimming access
• Minor maintenance to trails, water crossings or roads
• Mechanical removal of native aquatic vegetation for swimming or boating access
• Mechanically removing invasive aquatic vegetation

ii) Category: Registration with Rules in Regulation for Activity

Explanation of Category: Proponents would no longer be required to obtain work permits for activities in this category but would be required to comply with rules set out in regulations under the Public Lands Act and register their activity with the Ministry. Projects that do not comply with the proposed rules would require a work permit.

Affected Work Permit Requirements:

• Construction of buildings for mineral exploration and development
• Maintenance and replacement of clear span bridges and culverts

Proposals for Rules in Regulation

MNR proposes to modify work permit requirements for certain routine or re-occurring activities where the location of the activity on Crown land is known and/or where the activity would not significantly impact Crown land.

Dredging

Maintenance dredging would not require a work permit where the proponent complies with the proposed rules in regulation. To qualify as maintenance dredging the area to be dredged must have been dredged at least once within the previous five years. Maintenance dredging would not include suction dredging, blasting or open water disposal as these methods require approval of other agencies. Removal of existing structures such as old cribs and boathouse foundations would be added to the current exemptions under the definition of dredging.

Relocation of rocks and/or boulders for boating and swimming access would not require a work permit where the proponent complies with the proposed rules in regulation. The rules for relocation of rocks and boulders would include a limitation on the size of the area to be cleared, for example, not exceeding 6m in width (as measured perpendicular to the shoreline). There would also be rules prohibiting the creation of rock structures with the relocated rocks that could affect the natural movement of the water as these structures may negatively affect the near shore littoral zone. All other dredging activities on shore lands would continue to require a work permit.

Filling

Restoring, repairing or replacing an existing erosion control structure would not require a work permit where the proponent complies with the proposed rules in regulation. The intention of this change is to facilitate repairs to existing erosion control structures. The rules would include a requirement that the existing dimensions and location of the structure not change and that material from the existing structure be disposed of on dry land where it cannot re-enter the water body. MNR would continue to issue permits for all other filling activities on shore lands.

Remove Aquatic Vegetation

Mechanical removal of native aquatic vegetation for swimming or boating access would not require a work permit where the proponent complies with the proposed rules in regulation. Mechanical removal includes hand removal, raking, cutter-bar devices, mechanical harvesters, but does not include dredging or the use of herbicides or chemicals. The new rules would define requirements for removal of native aquatic vegetation, focussing on allowing boating and swimming access in front of waterfront properties.

The proposed area that could be cleared without a permit may not exceed the following dimensions:

Frontage of Property Greater Than 22m:

Maximum Width of Removal: 15m
Maximum Distance Off Shore: 30m
Maximum Width of Boat Channel: 6m

Frontage of Property Less Than 22m:

Maximum Width of Removal: 8m
Maximum Distance Off Shore: 30m
Maximum Width of Boat Channel: 6m

The proposed rules would ensure that the majority of native aquatic plants that provide important habitat for many species of fish and wildlife in the nearshore area would remain protected. Given that native aquatic vegetation is more abundant in non-shield lakes, MNR is considering shifting the boundary between Schedules 1 and 2 further north to better delineate between shield and non-shield lakes. Additional rules would address proper disposal of vegetation once it has been removed.

Any proposal to remove aquatic native vegetation that does not comply with the proposed rules requires a work permit.

Mechanically removing invasive aquatic vegetation would not require a work permit where the proponent complies with the proposed rules in regulation. Invasive aquatic vegetation is an increasing problem in Ontario’s waterways. MNR proposes to allow mechanical removal of select invasive aquatic vegetation province-wide without a work permit if done in accordance with a proposed set of rules. Invasive aquatic vegetation would be defined by the Ministry and would include species such as:

• Eurasian water milfoil
• European frog-bit
• Fanwort
• Flowering rush
• Purple loosestrife

Fact sheets providing information about invasive aquatic vegetation are available at:

http://www.mnr.gov.on.ca/en/Business/Biodiversity/2ColumnSubPage/STDPROD_068689.html  

Proposed Common Rules

MNR intends to propose some common rules that would apply to the dredging, filling and vegetation removal activities that are proposed for rules in regulation. These proposed common rules would include:

• The location of the activity be in front of the person’s waterfront property; and
• In-water work would be prohibited during the times of the year when fish species are vulnerable. (e.g. spawning) Guidelines to when in-water construction is restricted (“Ontario In-Water Construction Timing Window Guidelines for the Protection of Fish and Fish Habitat”) are currently posted at http://www.dfo-mpo.gc.ca/regions/central/habitat/os-eo/provinces-territories-territoires/on/os-eo21-eng.htm

Maintenance of Trails, Watercrossings and Roads

Minor maintenance to trails, water crossings or roads would not require a work permit where the proponent complies with the proposed rules in regulation. Minor maintenance activities include: culvert cleaning; road grading; ditch line clearing; spot gravelling; clearing the road surface; snow plowing; sanding; and dust control. Minor maintenance does not include activities that would alter the present use of the trail, water crossing or road. MNR would continue to require a work permit for all other maintenance activities on trails, water crossings and roads.

Proposals for Rules in Regulation with Registration

Building Construction

Construction of a building on surface rights being used under the authority of the Mining Act would not require a work permit where the claim holder complies with the proposed rules in regulation and registers the activity with MNR. The Mining Act gives the claim holder the right to use and occupy any part of the claim necessary for exploration and development of the mining rights [s. 50(2)]. MNR proposes to develop standard rules for construction of these buildings to ensure that the building is constructed within the claim area and outside of the 120 metre shoreline reservation set out in the Mining Act. The claim holder would be required to register with the MNR indicating when and where the building is being constructed. In addition to compliance related activities registration would also allow the Ministry to take appropriate action in the event of a forest fire. The MNR would continue to issue work permits for construction of buildings on Crown land not subject to a mining claim.

Watercrossings

Maintenance and replacement of clear span bridges and culverts would not require a work permit where the proponent complies with the proposed rules in regulation and registers the activity with MNR. This work permit exemption would only apply to a watercrossing on a road or trail on Crown land where there is a Use Management Strategy for Roads in place and there is a Memorandum of Understanding in place between the proponent and the Ministry of Natural Resources. The rules would require that a professional engineer be hired to ensure the bridge is constructed properly and that sedimentation controls be used to ensure the activity does not impact the environment. Registration would allow the Ministry to follow up for compliance purposes. MNR would continue to require work permits for all new bridges and culverts on Crown land roads and trails.

Streamlining these requirements would allow MNR to focus on higher impact construction activities that continue to require MNR work permits. Work permits will still be required for all activities that currently require a work permit except those proposed to be included in either Rules in Regulation or Rules in Regulation with Registration. Any proponent unable to undertake the activity in compliance with the proposed rules in regulation or the registration requirement would need a work permit before doing the work.

Purpose of Regulation:

To seek input on the proposed regulatory amendments to modernize MNR’s approach to issuing work permits under the Public Lands Act.

Other Information:

This proposal supports MNR's transformation plan and modernization of approvals. Registry posting #011-6751 provides information on the modernization of approvals initiative.

The following web links provide additional information:

Public Lands Act R.S.O. 1990
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90p43_e.htm

Public Lands Act O.Reg. 453/96 Work Permit - Construction
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_960453_e.htm

Public Lands Act O. Reg. 975 Work Permits
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900975_e.htm

Public Lands Act Policy: Work Permits – Section 14 Public Lands Act PL 3.03.04
http://www.mnr.gov.on.ca/stdprodconsume/groups/lr/@mnr/@crownland/documents/document/mnr_e005007.pdf

Fisheries and Oceans Canada “Ontario In-Water Construction Timing Window Guidelines for the Protection of Fish and Fish Habitat”
http://www.dfo-mpo.gc.ca/regions/central/habitat/os-eo/provinces-territories-territoires/on/os-eo21-eng.htm

Ministry of Natural Resources Invasive Aquatic Vegetation Fact Sheets
http://www.mnr.gov.on.ca/en/Business/Biodiversity/2ColumnSubPage/STDPROD_068689.html

Public Consultation:

This proposal was posted for a 47 day public review and comment period starting December 05, 2012. Comments were to be received by January 21, 2013.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.

Other Public Consultation Opportunities:

Additional consultation and outreach on these proposed amendments will occur with interested parties concurrent to this policy proposal.

As well, MNR plans to consult on additional regulatory amendment proposals in 2013.

Regulatory Impact Statement:

In developing these proposals, the ministry has considered any potential risks to natural resources, public health and safety, economic values, and society, to propose alternatives to the ways in which approvals are currently issued that would continue to protect and sustainably manage natural resources. Based on these considerations, the ministry has determined that:

  • The anticipated environmental consequences of the proposal are minimal. Rules in regulation/registration would continue to provide oversight for environmental impacts of proposed activities.
  • The anticipated social consequences of the proposal are minimal. Rules in regulation, including registration, would continue to provide oversight for social consequences of proposed activities.
  • The anticipated economic consequences of the proposal are likely positive. The proposed changes would reduce the regulatory burden on individuals and businesses engaged in these activities.

These proposed changes to approvals issued under the Public Lands Act, as well as those MNR is concurrently proposing under the Endangered Species Act and the Fish and Wildlife Conservation Act, would help deliver services better by:

  • reducing the number of approvals that clients must obtain from MNR for activities for which there is minimal or no impact to natural resources or public safety
  • reducing the time and effort required to obtain approvals.

 
Contact:

Jennifer McKay
Team Lead
Ministry of Natural Resources
Policy Division
Natural Heritage, Lands and Protected Spaces Branch
Lands and Non-Renewable Resources Section
300 Water Street
Peterbrough Ontario
K9J 8M5
Phone: (705) 755-1225
Fax: (705) 755-1267