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.
