Conservation authorities responsible for flood management are losing their say in Ontario’s land development race

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Determined to build 1.5 million new homes in a decade to alleviate severe housing shortages, Ontario’s government has introduced numerous changes to multiple legislations, aimed at making land development faster and cheaper. Among the biggest losers: Ontario’s conservation authorities.

Bill 23 (also known as the More Homes Built Faster Act) clarifies and limits the powers and responsibilities of these organizations, transferring some of their powers to municipalities or the provincial government. Of note, the bill would restrict the ability of conservation authorities to comment on development and planning applications. It would constrain their ability to appeal development approvals, and compel them to adopt a single, universal regulation.

The province also proposes to expedite conservation authorities’ processes for selling their lands for housing development.

The government said the changes will give local communities “more influence over decisions that impact them directly,” while at the same time streamlining development rules and strengthening flood risk management. Observers said the new rules would greatly diminish the role of conservation authorities in land use planning and flood risk management, and make it easier for high-risk applications to be successful.

“Bill 23 is, to a very large extent, a final nail in the coffin” for conservation authorities, said Jason Thistlethwaite, a professor in the University of Waterloo’s environment department.

“These are probably the most major changes we’ve seen in 50 years, on the provincial and municipal front,” said Colin Best, president of the Association of Municipalities Ontario, which represents Ontario’s 444 municipalities, and a councillor for the Region of Halton.

“One truism is that conservation authorities have, more and more, sought to extend their oversight to include true planning matters,” the law firm Gowling WLG observed in a commentary. “These changes will bring that to an end.”

In statements, the Ontario government said the changes were necessary to reduce “the bureaucratic costs and red tape that are delaying construction and pushing home prices even higher.” It said Bill 23 would reduce government fees, eliminate delays in the development approval process and make more land available for housing.

Conservation authorities are institutions unique to Ontario. There are 36, each managing a specific watershed that typically spans multiple municipalities. Each has a board comprised of officials from those municipalities, which provide the bulk of its funding.

Their responsibilities include managing wildlife, mapping and monitoring floodplains, operating and maintaining dikes and dams, issuing flood forecasts and warnings, and protecting and restoring natural cover.

The earliest conservation authorities date from the 1940s, but their mandate gradually expanded over many decades. Following 1954′s Hurricane Hazel, which left thousands of Ontarians homeless and killed 81, the authorities were empowered to prohibit development in floodplains. Successive natural resource ministers further expanded their powers, for example, by making them the lead commenting agencies on riverbank erosion and soil instability.

Some flood risk experts credit conservation authorities for helping Ontario manage flood risk better than most Canadian provinces.

“What we’ve essentially done, by empowering the conservation authorities, is make room for rivers to flood,” Prof. Thistlethwaite said. They’ve provided “sober second thought” on development in high-risk areas, he added, and made such applications prohibitively expensive.

“As a result of that, Ontario has, on a per capita basis, one of the lowest riverine flood risk exposures in Canada.”

The popularity of the authorities is hardly universal, however.

Certain developers and landowners have long accused conservation authorities of fee-mongering, overstepping their authority and having little political accountability. Others complained they’ve relied on outdated or inaccurate flood maps to block development.

“I have paid out $20,000 to the local authority for no legitimate reason,” fumed one complainant in a submission to the government in 2019. “Useless red tape and greed.”

Some municipalities also cried foul. The Town of St. Marys accused the Upper Thames River Conservation Authority in 2019 of stifling development through “overly conservative decisions,” driving businesses to relocate elsewhere. It urged the government to make approvals faster and less costly.

Following devastating flooding in parts of Ontario in 2019, the province appointed Douglas McNeil, a Winnipeg-based engineer, as Special Advisor on Flooding. Published later that year, Mr. McNeil’s report recommended the province support conservation authorities “to ensure the conservation, restoration and creation of natural green infrastructure (i.e. wetlands, forest cover, pervious surfaces) during land use planning to reduce runoff and mitigate the impacts of flooding.”

The Insurance Bureau of Canada also urged Ontario to ensure any changes to conservation authorities’ powers should be aimed at strengthening their ability to prevent development within floodplains.

The government of Premier Doug Ford, though, has instead reined them in. Its first budget halved provincial funding to the organizations. Months later, his then-environment minister sent a letter to conservation authorities, recommending they wind down programs not directly related to their core mandates. The Ford government has also made extensive use of Minister’s Zoning Orders (MZOs), previously a seldom-used tool that allows the minister of municipal affairs and housing to circumvent local planning processes.

Bill 23 represents the most ambitious changes yet. Angela Coleman, general manager of Conservation Ontario, which represents the 36 conservation authorities, said the government’s previous rules required that municipalities enter into agreements with conservation authorities for services deemed to be outside an authority’s core responsibilities. But Bill 23 prohibits such agreements entirely.

“Now, a municipality may not enter into agreement with the conservation authority to provide those services, even if the municipality wants to, and the municipality wants to pay for it,” she said.

Observers interviewed by The Globe and Mail agreed developers and land speculators are the biggest winners.

“This really reflects a long objective of Ontario’s Conservative Party to appease the interests of one of its major constituents: developers,” Prof. Thistlethwaite said. Municipalities often lack the resources or will to stand up to developers; conservation authorities have provided political cover to municipalities by blocking risky developments. Bill 23 bolsters developers’ ability to influence municipal councils and the province.

“There’s absolutely no doubt the winners are in the big development community that wants to do greenfield development,” agreed Theresa McClenaghan, executive director of the Canadian Environmental Law Association.

“In terms of who’s losing, I think it’s everybody else.”

“Ontario homeowners have come to expect that certain checks and balances have happened whenever they purchase a property: that it won’t flood, and that natural features that are around it will remain natural features,” Ms. Coleman said. “The work we’ve done for so many years is needed now, more than ever.”

Mr. Best said he understood the government’s impulse to reduce bureaucracy, but doubted Bill 23 would achieved the desired result of more homes under construction.

“What I’m seeing right now in our area is construction being reduced,” he said, “because the market is not there, and construction costs have gone through the roof. I talk to local builders, and planning is not their major problem. It’s financing.”