Why wetland designations are infuriating landowners

By Farmers Forum staff
Trenton-area farmer Brian Crews was taking down trees, working what he still believes is a woodlot, to expand his crops, when the notice from the Lower Trent Conservation Authority arrived at the farmgate. He was ordered to stop work immediately. Two CA officers had responded to a complaint and, looking over from a neighbouring property, noted that the woodlot was a wetland.

It was the first time Crews learned that part of his land was considered wetland and he’s not happy about it. He’s also not alone. Many landowners are finding out their land is a wetland while developing it. What’s worse is that this problem has been going on for at least a decade.

On Sept. 29, Waterloo Region rural landowner Jason Geil was sentenced to 30 days in jail and fined $30,000, after using a dump truck and bulldozer to fill an area on his own property. It was the first time a landowner in Ontario was sent to jail for flouting the wetland designation.

Speaking with Farmers Forum last month, Geil said he wasn’t notified that the area was a wetland until recently. Grand River Conservation Authority contended that Geil should’ve known the area was a wetland from previous court documents filed in 2011. Geil protested by continuing to work his own land even though he had been fined years ago for a similar case. He argued that the wetland was artificial because he dug out a pond and later filled it in. The judge added jail time as a deterrent.

The business of wetland designations is a messy one and is infuriating for many. Both the Ministry of Natural Resources and Forestry (MNRF) and conservation authorities (CA) can designate your land as a wetland. Neither one has to necessarily tell you of the re-designation and they don’t even have to enter your property to decide if you have wetland or not.

MNRF must do on-site visits but the inspector isn’t required to walk the entire area of a big wetland, so they might not pay you a visit. The ministry can then designate two-types of wetlands: Provincially significant or not. If it’s not provincially significant, they don’t tell you but you are still not allowed to work or develop that land on your own property.

If it’s provincially significant, the good news is that the ministry will tell you in writing, said MNRF spokesperson Jolanta Kowalski. The bad news is that this enhanced designation includes a 120-metre buffer zone around the wetland that you effectively cannot work or develop.

Conservation authorities work differently. They don’t have to tell you about a wetland designation, although some will. Sometimes landowners find out when a municipal official plan is unveiled at a public meeting.

By that time it’s extremely difficult to do anything about it, said Ontario Federation of Agriculture senior policy analyst Peter Jeffery. “The burden is on the property owner to prove that feature doesn’t really exist.”

Compensation for wetland designations is quite limited, said OFA president Keith Currie. While Currie didn’t agree that farmers should be compensated for market value loss of land, he said that “if it’s for a societal benefit, society should be paying for it . . . Wetlands are key parts of our ecosystems. But it’s not fair for farmers to have to shoulder the financial burden of protecting them by themselves.”

To find out if you own wetland, it helps to know what wetland is. CAs work off this definition: Land that is seasonally, or permanently, covered in shallow water, or has a water table close to the surface; land that directly contributes to the hydrological function of a watershed through a connection with a surface watercourse; land with hydric soil (meaning land that has water in it so constantly that its pores are constantly filled with water rather than air); and is dominated by water-loving plants. If a conservation officer happens to spot a few key plants, or receives a complaint from a neighbor, it can trigger an inspection of your land. That can be as simple as a review of aerial photos or a site visit, said Lower Trent Conservation Authority ecology and stewardship specialist Ewa Bednarczuk.

But if the CA considers it a wetland, then it’s a wetland, and the penalties for damaging one can be severe. Fine can be as much as $10,000 a day, with the possibility of up to three months in jail.

Landowners are ultimately responsible for knowing the designation on their property, said Bednarczuk. The ministry offers maps (go to www.ontario.ca/page/make-natural-heritage-area-map) and many CAs offer their own maps for viewing. Landowners can also contact their local CA to find out what types of wetlands they regulate and if a particular area is, or is not, a wetland.

Once your land is designated a wetland, you need a permit from the CA to do any of the following things on it: Building, re-building or placing down a pre-fabricated structure; changing a building in a way that would change its use, making it larger, or adding more rooms for people; site grading; and dumping or removing material from the area. If that wasn’t broad enough, the Conservation Act also forbids anyone from interfering “in any way” with a wetland.

CAs can authorize development around wetlands. South Nation Conservation charges $2,470 for a permit for a project larger than five acres near a wetland, which doubles if the permit application is made after the work starts. An environmental impact study for a same-sized project near a wetland costs $2,710 and takes 20 business days.

A landowner trying to go ahead without a permit is taking a big risk. In the modern era of ubiquitous smartphones, the odds of a landowner making any kind of significant change on his property and nobody noticing is pretty remote, said the OFA’s Jeffery.

Landowners who try to get away without a permit could end up paying twice with nothing to show for it, because CAs have the authority to order remediation of wetlands, at landowner expense. “Having that (permit) in hand is your ultimate get-out-of-jail-free card,” Jeffery said.

Former Ontario Landowners Association president Tom Black said he’d never heard of a CA reversing a designation after a site visit, but has heard of a landowner who called the MNRF and they reversed the CA’s wetland designation.

Last month, the OFA called on the province to increase protections for landowners. Specifically, the OFA is calling for on-ground verification — they call it ground-truthing — of all wetland locations and boundaries because “all too often they are mapped solely through air photos.” The farmers’ federation also wants all municipalities to formally notify property owners in writing (with an outline of their appeal options) if a wetland has been identified on their property at the time it has been identified; and property owners must have access to a no-cost appeal mechanism if they disagree about the area being a wetland.

Meantime, the ministry and conservation authorities can change the designation of your land and not tell you.