Real Estate

Pending amendments to the Conservation Authorities Act would allow developers to build on floodplains without permits

Wetland Photo by Shutterstock/Wang Sing

On November 28, the Ontario government passed Bill 23 dubbed the More Homes Built Faster Act, a far-reaching piece of legislation that eliminates development fees and downloads a lot of the permitting responsibilities to the municipalities. The objective of the bill is to speed up the development planning process and create affordable housing.

Ontario Premier Doug Ford has committed to building 1.5 million new homes in the next 10 years.

In hand with Bill 23, the Ford government is also looking to open sections of Ontario’s Greenbelt for development—with some of those sections located in wetlands and floodplains.

During an interview with the Canadian Press, Steven Guilbeault, Canada’s Minister of Environment and Climate Change, criticized the plan, saying that the federal government would not provide disaster compensation to developments built in floodplains.

Premier Ford responded to Guilbeault’s statement during a press conference in Clarington, Ont. on Dec. 2. by putting the onus on the developers.

“It’s the responsibility of any builder, no matter where we build, to make sure that they protect any floodplains,” the premier said.

Rhonda Bateman, the chief administrative officer for the Lower Trent Conservation Authority, confirms that as of right now, this is true. “Currently, everything is status quo as far as our permitting goes,” she says, meaning Ontario’s conservation authorities still have jurisdiction over natural hazards, such as floodplains, and have the power to prevent developers from building near these areas by denying them permits.

But that could change. The provincial government added two amendments to the Conservation Authorities Act, a set of regulations Ontario’s conservation authorities use to “maintain the vitality of our watersheds and protect people’s lives and properties from natural hazards such as flooding and erosion.”

The two amendments have yet to be enacted, requiring a proclamation from the Lieutenant Governor. But if they were enacted, Bateman says that developers would not need a permit from their conservation authority to build on a hazardous area, such as a floodplain or wetland.

“If [developers] don’t require a permit from us, it will end up causing a lot of extra responsibility and liability for development on the municipality,” she says, “and they count on us for expertise to be able to identify all of those hazards and how to mitigate them or prevent them from happening.”

Bill 23 has already stripped conservation authorities of the ability to partner with municipalities to review and comment on development applications. The Ford government has reasoned that by removing stakeholders from the planning process, more development will happen faster. But many municipalities have said that without the expertise of conservation authorities, the planning process could take longer to properly assess an application.

It’s also unclear who would be liable if a developer built in a floodplain and the development flooded. “I think lawyers are going to be competing over the answer to that,” Bateman says. “The municipalities will have limited mechanisms to ensure that outside compliance can be reached because we’re the compliance in the permitting process.”

The dangers associated with building in a natural hazard are obvious, Bateman says. Homes built on a wetland could see extensive property damage from flooded basements. “The other part of the wetland issue is that wetlands are flood attenuation. If they’re paved over or built over, then the water that’s normally stored in there has to go somewhere, and it could cause surface flooding.”

Building in a floodplain is even worse. “People’s homes can get washed away. Or people could die,” Bateman says.

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