Summary of Issue
Things to Consider
Site alteration and soil movement have the potential to impact water resources. These operations can affect water quality, as well as water movement and availability in the environment. Examples include: contaminated excess soil placed at a receiving site causing contaminants to leach into the water system; or a site alteration that changes soil permeability causing ponding and increased surface runoff. The BMP provides the following guidance:
…sites that receive excess soil to be used for a beneficial purpose should be constructed, operated and maintained in a manner that ensures the health and safety of all persons and prevents adverse effects or impairment of water quality within the meaning of the OWRA.” (Ontario Water Resources Act)[1]
[1] Ministry of the Environment Conservation and Parks. Management of Excess Soil – A Guide for Best Management Practices (https://www.ontario.ca/page/management-excess-soil-guide-best-management-practices)
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 indicates that “for greater certainty” that “nothing (in this section) relieves a person from complying with (relevant subsection) of the Ontario Water Resources Act when carrying out (activity).
It is important to remember that if excess soil is to be finally placed close to certain features on the reuse site, such as a drinking water well or a surface water body, or if the excess soil will be used for growing crops, the application of more conservative soil quality standards and rules may apply at the reuse site. For a more detailed understanding of these considerations, see the MECP’s factsheets related to reuse sites and soil quality, at: https://www.ontario.ca/page/handling-excess-soil.
Please see other tabs of this Tool for information on how the Excess Soil Regulation defers to by-laws on matters related to soil quality and quantity.
There are some additional requirements of the Excess Soil Regulation and the Rules document that may affect protection of water resources. For example, Part I, Section D, 1(3) of the Rules Document provides rules specifically related to the placement of salt-impacted soil at reuse sites. It is important to review these rules and their applicability. Through their by-laws, municipalities can set their own alternate storage requirements.
The rules document also has general storage rules that apply to reuse sites and other sites; see Part I, Section C, 1. Included among these, the soil stored must not be stored at a location within 30 metres of a waterbody. Again, through their by-laws municipalities can set their own alternate storage requirements.
It is important to review the Excess Soil Regulation and the Rules document to find the requirements and rules applicable in various circumstances. Also see the Overview of the Regulation page 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).
Resource: Excerpt from the Rules Document
3) Salt-Impacted Excess Soil
1. Excess soil quality standards for chemicals (e.g., sodium adsorption ratio and electrical conductivity) in soil resulting solely from the use of a substance for the safety of vehicular or pedestrian traffic applied under conditions of snow or ice or both, are deemed to be met if the following criteria are met:
i. The excess soil is finally placed at one of the following locations:
a) where it is reasonable to expect that the soil will be affected by the same chemicals as a result of continued application of a substance for the safety of vehicular or pedestrian traffic under conditions of snow or ice;
b) at an industrial or commercial property use and to which non-potable standards would be applicable; or
c) at least 1.5 metres below the surface of the soil.
ii. The excess soil is not finally placed at any of the following locations:
a) within 30 metres of a waterbody;
b) within 100 metres of a potable water well or area with an intended property use that may require a potable water well; or,
c) a location that will be used for growing crops or pasturing livestock unless the excess soil is placed 1.5 metres or greater below the soil surface.
iii. The project leader or operator of the project area has informed the reuse site owner or operator that the excess soil is from a location that may be expected to contain the chemical and, if sampling and analysis has been conducted in accordance with the regulation, the project leader or operator of the project area has provided relevant sampling results to the reuse site owner or operator, including the soil characterization report if prepared, and identified and communicated any potential risks to surface water and ground water to the reuse site owner or operator.
Resource: The Ontario Water Resource Act
The Ontario Water Resource Act, R.S.O. 1990, c. O.40, governs operations that impact water resources and provides authority for officials to inspect water quality and quantity at location without warrant or court order.
By-law Sections
General Prohibitions and Regulations
Things to Consider
Municipal by-laws may contain specific prohibitions to prevent adverse effects to water quality as a result of site alterations. For example, the language below includes the following prohibition related to water quality:
Sample Language
“Groundwater”
3.5 No Person shall conduct, undertake, cause, permit or carry out a Site Alteration that may adversely affect the quality or quantity or any surface water or groundwater however it may exist including all water used for or available as a source of water for agriculture or human consumption.
Drainage / Watercourse
3.6 No Person shall conduct, undertake, cause. permit or carry out a Site Alteration that could adversely affect any Watercourse or Drainage on any Property without prior written approval from the Director.”[1]
“No Person shall perform, or cause or permit Site Alteration and Movement of Fill that may adversely affect the quality or quantity or any surface water or groundwater however it may exist including all water used for or available as a source of water for agriculture or human consumption.”[2]
“No Person shall perform, or cause or permit Site Alteration and Movement of Fill that could adversely affect any Watercourse or Drainage on any Property without prior written approval from the Director.”[3]
“No person shall perform, or cause or permit to be performed, any site alteration that may adversely affect the quality or quantity or water in a well, pond or watering hole intended for use as a source of water for agriculture or human consumption on a property with an adjoining property boundary, or any other property[4].”
Permit Agreement
Things to Consider
Some municipalities also prescribe specific requirements to protect water quality as conditions of a permit agreement.
For example, the by-law language below permits requirements for large fill operations (volumes greater than 5000 m³ or where the resulting proposed elevation will be greater than 0.5 m above or below the original grades) to include the following requirements:
Sample Language
“provide a report from a Qualified Person that he/she is satisfied that the site alteration will not result in:
5.01.06.01 adverse erosion and environmental impacts on and off-site, as confirmed in writing by the Qualified Person;
5.01.06.02 blockage of a swale, ditch or watercourse;
5.01.06.03 siltation in a watercourse, wetland or storm sewer;
5.01.06.04 transportation of silt to adjacent, neighbouring or downstream properties;
5.01.06.05 pollution of a watercourse;
5.01.06.06 flooding or ponding of adjacent lands;
5.01.06.07 flooding or ponding caused by a watercourse overflowing its banks;
5.01.06.09 detrimental effect on the quality or quantity of water in wells
5.01.06.11 detrimental effect on matters of inherent sensitivity such as, but not limited to, aquifer recharge, soil permeability, water quality and wildlife habitat;
5.01.06.15 detrimental effect on the natural environment, including but not restricted to lands designated as Environmentally Sensitive Areas, Lake Ontario shoreline, Burlington Bay / Hamilton Harbour Shoreline, Niagara Escarpment and Areas of Natural or Scientific Interest and habitat of endangered or threatened species as identified and defined by the Ministry of Natural Resources;
5.01.06.16 detrimental effect within 120 metres of a Provincially Significant Wetland identified by the Ministry of Natural Resources and wetlands regulated under Ontario Regulation 162/06;
5.01.06.20 contamination of, or the degradation of the environmental quality of land [5].”
As another example, the language below indicates that for large fill operations (when greater than five hundred (500) cubic metres of fill is being placed or …a change to existing landform of greater than six hundred (600) millimetres from the existing grade), the permit agreement may include the following terms related to water quality:
Sample Language
“provide a report from the qualified person that he/she is satisfied that the site alteration will not result in:
i) soil erosion;
ii) blockage of a watercourse;
iii) siltation in a watercourse;
iv) pollution of a watercourse;
vi) flooding or ponding on abutting lands;
vi) flooding or ponding caused by a watercourse overflowing its banks;
[…]
viii) detrimental effect on matters of inherent biological sensitivity such as, but not limited to, aquifer recharge, water quality, unusual plants or wildlife and overwintering habitats;
(g) undertake soil samples and well monitoring, the frequency of which shall be determined by the Director, at the applicant's expense;[6]”[6]
The key difference in the second example is the requirement for soil samples and well monitoring for large scale operations. This may be included in Fill Management Plans or specific requirements for large site alteration agreements.
References
[1] Townishp of King – By-law 2021 – xxxx 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] 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
[3] Ibid
[4] Scugog By-Law 62-15 (http://www.scugog.ca/en/township-office/resources/Documents/62-15-Site-Alteration.pdf)
[5] Burlington By-Law 64-2014 (http://www.burlington.ca/en/modules/by-laws/by-law/details/3a5b5a42-0ea3-4126-b273-e850afb82198)
[6] Scugog By-Law 62-15 (http://www.scugog.ca/en/township-office/resources/Documents/62-15-Site-Alteration.pdf)