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HomeMy WebLinkAboutPDS-014-24Staff Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: Planning and Development Committee Date of Meeting: March 18, 2024 Report Number: PDS-014-24 Submitted By: Reviewed By: Authored By: Carlos Salazar, Deputy CAO, Planning and Infrastructure Services Mary- Anne Dempster, CAO Resolution#: PD-019-24 Amanda Crompton, Principal Planner, and Kevin Heathcote, Capital Works Supervisor, Planning and Infrastructure Services File Number: PLN 1.2 By-law Number: Report Subject: Policy Update – Environmental Assessment Act Recommendations: 1.That Report PDS-014-24, and any related delegations or communication items, be received; 2.That Report PDS-014-24 be adopted as the Municipality of Clarington’s comments to the Province on the proposed new environmental assessment regulation for municipal infrastructure; and 3.That all interested parties listed in Report PDS-014-24, and any delegations be advised of Council’s decision. Municipality of Clarington Page 2 Report PDS-014-24 Report Overview The Ministry of Environment, Conservation, and Parks (MECP) continues to take action to modernize the Province’s environmental assessment (EA) program. On February 16, 2024, the Province announced that three regulations detailing changes to the Environmental Assessment Act (EA Act) would come into effect on February 22, 2024. These regulations, which were first released for comment in spring 2023, move Ontario to a project list approach for projects subject to a comprehensive EA. On the same day, the Province posted for consultation a proposal to revoke the Municipal Class EA (MCEA) and make a new regulation under the EA Act that will identify which municipal infrastructure projects are subject to the streamlined EA process and the process they must follow. The purpose of this report is to summarize the above noted changes to the EA Act and present staff’s comments on the proposal for a new streamlined environmental assessment regulation submitted to the Province as draft to meet the tight commenting deadline of March 17, 2024. 1. Background 1.1 Since July 2020, several changes to the EA Act were made with the objective of modernizing and streamlining the EA program in Ontario. 1.2 As a component of the EA modernization program, amendments to the MCEA process were made in March 2023 to exempt certain projects from requiring an EA, to clarify the projects list, and to update consultation requirements. 1.3 Changes to the EA Act were also made to enable future regulations to set out streamlined EA processes and requirements to replace Clas s EAs and list projects that require comprehensive or streamlined EAs. 1.4 The following three new regulations detailing changes to the EA Act came into effect on February 22, 2024:  Ontario Regulation 50/24: Part II.3 Projects – Designations and Exemptions;  Ontario Regulation 51/24: Exemptions from the Act and from Part II.1 of the Act; and  Ontario Regulation 53/24: General and Transitional Matters. 1.5 On February 16, 2024, the Province posted for consultation a proposal for a new streamlined environmental assessment regulation for municipal infrastructure that focuses on certain water, shoreline, and sewage system projects. The commenting period for the proposed regulation ended on March 17, 2024. Staff submitted draft comments to the Province to meet the commenting deadline. Municipality of Clarington Page 3 Report PDS-014-24 2. Summary of Changes to the Environmental Assessment Act Comprehensive EA Amendments (In effect as of February 22, 2024) 2.1 Over the past several years, the Province has consulted on proposals to move to a Comprehensive Project List (CPL) approach and to move more projects to streamlined EA processes. As of February 22, 2024, projects that require a comprehensive EA are now set out in regulation. 2.2 The project list approach is a shift from the previous focus on who is undertaking the project to what the project is. 2.3 Projects that are subject to a comprehensive EA include significant waste projects, significant electricity generation facilities and large waterfront projects (designated as Part II.3 under the EA Act). 2.4 Projects that are subject to a streamlined EA process include certain Part II.3 projects set out as conditional exemptions (such as waste, electricity, transit and rail) and other projects that continue to be subject to an EA process under an approved Class EA. 2.5 Projects that were previously captured under the former individual EA process and are now under the streamlined EA process include: all new highways (provincial freeways and municipal expressways), rail projects and electricity transmission lines and stations. 2.6 All projects that have started an individual EA application will continue in the comprehensive EA process. Municipal Class EA Amendments (Posted for Consultation) 2.7 The Municipal Class EA (MCEA) sets out a streamlined EA process for certain municipal infrastructure projects related to roads, water and sewage infrastructure. 2.8 The new EA regulation proposes to revoke the MCEA and make a streamlined EA regulation. The proposal includes two key components:  The Municipal Project List that describes the municipal infrastructure project types subject to the process (to be designated as Part II.4 under the EA Act); and  The Municipal Project Assessment Process (MPAP) that sets out requirements for consultation, consideration of alternative designs, impact assessment studies, documentation and notification. 2.9 The Municipal Project List includes the following:  Drinking water facilities when constructing a new water system, establishing a new surface water source, or constructing a new water treatment plant or expanding facility beyond existing rated capacity; Municipality of Clarington Page 4 Report PDS-014-24  Sewage treatment facilities when constructing a new sewage treatment plant that processes over 50,000 litres of sewage per day or expanding an existing sewage treatment plant by 25% or more of existing rated capacity, establishing new lagoons, or expanding lagoons beyond existing rated capacity;  Stormwater management systems when constructing or modifying retention/detention facilities for stormwater control where active treatment (chemical/biological) is required; and  Shoreline/In-water works when constructing a new dam in a watercourse or constructing new shoreline works such as offshore breakwaters, groynes (a shore protection structure) or seawalls. 2.10 The Municipal Project List does not include the following projects that are currently subject to the MCEA:  Municipal projects currently listed in Schedule B of the MCEA ;  All municipal roads (including bridges) or new parking lots in any location (other than municipal expressways which are addressed through the Class EA for Provincial Transportation Facilities and Municipal Expressways); and  All private sector infrastructure projects that are currently subject to the EA Act. 2.11 Projects not included on the Municipal Project List may have other approval requirements under other legislation and regulations (such as the Environmental Protection Act) that will continue to apply. 2.12 The MPAP process, as proposed in the regulation, is detailed below: 1. Proponent distributes Notice of Commencement (starts the 6-month timeline). 2. Proponent consults with Indigenous communities, interested persons, and the public for input on the project, evaluates the environmental effects and mitigative measures, identifies the preferred design, and documents the assessment process in an Environmental Project Report (up to 120 days).  If the proponent determines that more time is required to address outstanding concerns about a project, the assessment process can be paused for up to 30 days. A pause may occur more than once, but the total of all pauses cannot exceed 30 days. 3. Proponent publishes a Notice of Completion of the Environmental Project Report (within 120 days of the Notice of Commencement, plus any time outs, to a maximum of 150 days). 4. Proponent provides the Environmental Project Report for review by Indigenous communities, interested persons and the public (30 days). Municipality of Clarington Page 5 Report PDS-014-24  Requests for a Minister’s Order may be submitted where there are outstanding concerns that a project may adversely impact constitutionally protected Aboriginal and/or treaty rights. 5. After the review period (35 days), whether there is a request for a Minister’s Order or not, the Minister may take one of the following steps: 1) issue a notice to proceed with the project as planning; 2) impose additional requirements; or 3) require preparation of a Comprehensive EA. 2.13 In addition, the proposal seeks to revoke all MCEA and EA requirements for private developers. 2.14 Comments on the proposal to revoke the MCEA and make a new regulation under the EA Act are presented in section 3 below. These key comments reflect staff’s review of the proposal at the time of writing this report. Additional technical comments may accompany our submission to the Province. 3. Key Comments 3.1 The Municipality supports the removal of smaller scale, low-impact projects from the EA process. 3.2 The Municipality has concerns with the exclusion of all municipal road and bridge/water crossing projects and all private sector infrastructure projects from the Municipal Project List. 3.3 Municipalities require justification for land taking required for road widenings and new road projects, beyond the information provided in a master plan/secondary plan. Proper and consistent assessment of alternatives and public consultation is important to ensure that the public is being protected and due diligence investigations are being completed. 3.4 Removal of consistent requirements for public engagement will put additional onus on municipalities and may make it difficult to enforce on the private sector. 3.5 No oversight from a higher body to ensure that all municipalities are consistently assessing all aspects of the environment could increase risk and negatively impact important matters such as impacts to First Nation or climate change. The constricted 6-month timeline for public consultation on projects that will follow the MPAP process put a difficult burden on municipalities to meet unrealistic timelines. 3.6 The Municipality also seeks clarification as to when the proper inventory of environment and assessment of alternatives and required studies should take place. If being done prior to public consultation, the project becomes less transparent, and the consultation becomes more of a check mark rather than valuable feedback into the preferred solution. 4. Financial Considerations Not Applicable. Municipality of Clarington Page 6 Report PDS-014-24 5. Strategic Plan One of the three pillars of the Clarington Strategic Plan 2024 -27 is to grow responsibility with the objective to promote responsible and balanced growth by developing the economy while protecting the environment. Specifically, staff are directed to work with partners and upper levels of government to ensure Clarington’s natural heritage areas are protected and enhanced. The comments detailed in this report and submitted to the Province as draft are consistent with this objective. 6. Concurrence Not Applicable. 7. Conclusion The purpose of this report is to summarize proposed and enacted changes to the EA Act and present staff’s comments. Staff are supportive of the intent of the Province to streamline the EA program in Ontario; however, the changes put forward:  Exclude important municipal projects and all private sector infrastructure projects from the Municipal Project List, which may result in an inadequate assessment of alternatives and environmental impacts, as well as minimal public consultation; and  Condense the process, for projects included on the Municipal Project List, to a 6- month timeline, which may be difficult for the municipality to meet. It is respectfully recommended that report PDS-014-24 be adopted as the Municipality of Clarington’s comments to the Province on the proposal for a new streamlined EA regulation. Staff will continue to monitor and review the information on this matter and will report back as necessary. Staff Contact: Amanda Crompton, Principal Planner, 905-623-3379 ext. 2444 or acrompton@clarington.net or Kevin Heathcote, Capital Works Supervisor, 905-623-3379 ext. 2302 or kheathcote@clarington.net or Lisa Backus, Manager of Community Planning, 905- 623-3379 ext. 2413 or lbackus@clarington.net. Attachments: Not Applicable Interested Parties: List of Interested Parties available from Department.