Summary of Issue

Things to Consider

Site alteration on agricultural lands generally does not require a municipal permit and may be exempt from site alteration and fill by-laws if considered “normal farm practice”. This allows farmers access to soil for the purposes of agricultural operations, such as drainage or erosion control.  Site alteration using excess quantities of soil by agricultural operations may occur for various purposes (e.g., soil amendment, re-establish vegetation, surface drainage). These activities may require a permit from a municipality or could be exempt if considered a normal farm practice. Each situation depends on the specific activity and the applicable municipal site alteration or fill by-law. It is recommended that farmers contact the local municipality to identify applicable fill or site alteration by-laws for the area.

Information on normal farm practices (See Citizens Guide) and the Normal Farm Practices Protection Board is available from OMAFRA.

It should be noted there have also been reports of agricultural lands receiving contaminated soils and/or commercial fill operations attempting to pass as “normal farm practice” to avoid regulation. For example, an operation may claim a site needs to be filled back to grade for agricultural purposes, when this is not always true.

Site Alteration is often defined in By-laws and does not exempt agricultural lands,  but is often carefully worded to require compliance with the By-law even if not requiring a Permit.  See Township of King’s Rationale document [1]

Short Form References

This page  makes reference to:

• The “Excess Soil Regulation”  which is the short form for the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.

• The “Rules document” which is the short form the reference document to the regulation entitled Rules for Soil Management and Excess Soil Quality Standards

• MECP BMP -which is Ministry of Environment, Conservation and Parks document of Excess Soil – A Guide for Best Management Practices.

• Brownfields regulation refers to Ontario Regulation 153/04

Key Takeaways

The Excess Soil Regulation puts the onus on project areas (source sites) to confirm that, among other things, the owner or operator of the reuse site has agreed in writing to accept the excess soil. This applies to all excess soil movements to reuse sites, including agricultural sites; see the Overview of Regulation tab for an overview of the reuse requirements.

In addition to the general requirements that may apply from the Excess Soil Regulation (when excess soil can be reused etc.), the Rules document provides additional requirements that may affect the deposit of excess soil on agricultural lands. A prominent example is:

Excess soil shall only be finally placed for the beneficial purpose of growing crops or pasture if the following criteria are met:

i.  no excess soil will be placed on top of existing topsoil unless the excess soil is topsoil; and

ii. the excess soil meets Table 1 of the excess soil quality standards and the results of any required leachate analysis meets Table 1 of the leachate screening levels as outlined in the Appendices in PART II of this document unless the excess soil is finally placed at a depth that is below 1.5 metres from the surface.

See the Guidance document on this website for a general overview of reuse requirements from the Excess Soil Regulation, as well as resources on the ministry’s excess soil webpage (Handling excess soil | Ontario.ca).

Key Resources

For further information, see MECP’s Factsheets (available at: https://www.ontario.ca/page/handling-excess-soil) with an overview of relevant regulatory requirements, best management practices, FAQs and key definitions related to:

• Source sites (generally referred to as “project areas” in the Excess Soil Regulation)

• Reuse sites

• Soil Quality & Beneficial Reuse

• Offsite Soil Management – Temporary Soil Storage and Processing

• Stormwater Pond Sediment Management

• Qualified Persons and Sampling

• Infrastructure Projects

Normal Farm Practices Protection Board hearings are summarized here:  https://www.canlii.org/en/on/onnfppb/

By-law Sections

Exemptions

Things to Consider

Many municipal by-laws include an exemption for “normal farm practices” but exclude fillings in excess of a specified topsoil height or fill volume. However, since “normal farm practice” is defined case by case, it may be most effective not to specify limits.  The Township of King’s (proposed) By-law does “restrict site alterations and fill placement that do not align with a carefully considered “need" rather than those driven simply by fill placement for profit (commercial filling”. [2]

Things to Consider

Prohibitions related to agricultural lands often address removal and replacement of topsoil.  The limit for replacement of topsoil tends to be between 20 and 30 centimeters and between 500 and 1000 cubic metres. Limits on topsoil height and fill volume are typically included to prevent illegal fill operations attempting to pass as normal agricultural practice. However, municipalities should also consider that operations exceeding these limits maybe deemed normal farm practice by the NFP Board. Example prohibition language is provided below.

Permit Issuance

Things to Consider

If a municipality with a site alternation or fill by-law under the Municipal Act issues a permit for site alteration on farmland, the municipality is responsible for enforcing it. A municipality cannot override the Farming and Food Production Protection Act prohibition on by-laws that restrict an agricultural operation from carrying out a normal farm practice.

It is common for municipal by-laws to exempt projects under the Drainage Act and the Tile Drainage Act as it is necessary to keep infrastructure in a fit state of repair. There may also be other exemptions for activities where the soil typically stays on site. The removal of topsoil as an integral part of a normal farm practice would also be exempt, for example, where it is removed as an incidental part of sod-farming, greenhouse operations and nurseries for horticultural products.

If a permit is not required and there is a complaint that use of excess soil is inappropriate, the issue could go to the  Normal Farm Practices Protection Board under the Farming and Food Production Protection Act (after due conflict resolution/mediation process).

For complaints related to normal farm practices, please contact the Agricultural Information Contact Centre at 1-877-424-1300 or by email at ag.info.omafra@ontario.ca. 

Resources

Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) has a fact sheet, “Importation of Soil onto Agricultural Land”, to:

• Educate farmers about legal requirements, risks and liabilities;

• Support environmentally sustainable practices for importation of soil onto agricultural lands;

• Provide technical information and resources to help reduce concerns and conflicts related to soil imported onto agricultural lands; and

• Provide information to assist OMAFRA field staff in communicating with farmers about mechanisms available to help protect soil and water resources.

Link: http://www.omafra.gov.on.ca/english/engineer/facts/16-055.htm

References

[1] Township of King – Rationale Document.  This is a temporary site while the public engagement process is underway.  Site Alteration By-law Review | SPEAKING - Your voice, our community.  For a permanent location – search www.king.ca

[2] Township of King – Rationale Document LINK

[3] Town of Bradford West Gwillimbury. By-law 2011-108. (https://bradfordwestgwillimbury.civicweb.net/filepro/documents/562?preview=31941)

[4] Town of Mono - By-law 2020-XXXX, a By-law to Regulate Site Alteration and Movement of Fill within the Town of Mono. Town of Mono | Home

[5] King Township – By-law 2021 – XXXX  Link to be updated

[6] Township of Uxbridge By-law 2010-084 (http://town.uxbridge.on.ca/sites/default/files/by_laws/Fill%20(Site%20Alteration)%20By-law%20No.%202010-084.pdf)

[7] Town of Halton Hills By-law 2017-0040 Site Alterations - Halton Hills

[8] Town of Markham By-Law 2011-232 (https://www.markham.ca/wps/wcm/connect/markhampublic/d9c29487-be8a-435c-b22d-ce3113e56380/2011-232.pdf?MOD=AJPERES&CACHEID=d9c29487-be8a-435c-b22d-ce3113e56380)