Ministerial approval required for any water management or treatment facility

With the 2017 amendments to the Environment Quality Act (the Act), procedures regulating certain activities have in impact on the environment were significantly modified, thereby ushering in major changes for municipalities.

The purpose of the amendments is to provide a clearer more structured authorization scheme for the filing and examination of authorization applications sent to the Minister of the Environment, the Fight Against Climate Change, Wildlife and Parks (MELCCFP) and to grant the Minister greater power to determine the activities that require authorization.

The Act does away with the notion of authorization certificates and instead establishes a unified authorization procedure.

Instead of broadly-worded inclusionary provisions, the Act now refers to specific activities and establishes ministerial power to determine, by regulation, any other activity considered as having a significant impact on the environment. Section 22 sets out all the activities requiring ministerial approval, many of which directly concern municipalities.

Thus, section 22 (3) covers any water management or treatment facility referred to in section 32, and sections 22 (7), 22 (8) and 22 (9) cover the establishment and operation of residual materials elimination and reclamation facilities. It should be noted that section 31.32 and following also governs the establishment and operation of municipal wastewater treatment works and that a “depollution attestation” is required pursuant to the Regulation respecting municipal wastewater treatment works[1].

Thus, ministerial authorization pursuant to section 22 (3) is the rule for sewer or water treatment systems. However, with the enactment of subdivision 2 of Division II of Chapter IV (Title 1)[2] “Declaration of Compliance“, the Act now provides that certain activities designated by regulation are eligible to file a Declaration of Compliance instead of an authorization application.

The Declaration of Compliance is a document stating that a planned activity satisfies the conditions, restrictions and prohibitions determined by regulation. The Declaration must be prepared and certified by a professional or person qualified in the relevant area. It should be noted that the Regulation may require the deposit of financial guarantees.

The Act also provides that exemptions for certain activities referred to in section 22 may be established by regulation[3]. To that end, the Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact[4] (RSABEI), enacted in 2020, in addition to defining the terms and conditions governing authorization applications under section 22, prescribes the activities that may file a Declaration of Compliance instead of an authorization application pursuant to section 31.0.6 of the Act and the activities subject to exemption pursuant to section 31.0.11.

Pursuant to s. 22 (10) of the Act, the RSABEI specifies the activities that require ministerial authority, lists the terms and conditions governing authorization applications and lists exceptions, the activities that may be entitled to a simplified procedure (Declaration of Compliance) or an exemption.

Although major work on water management systems remains subject to an authorization application, the Act and the RSABIE establish a set of exceptions that facilitate day-to-day management of those systems as those activities are regarded as having a more limited impact on the environment.

The requirements for authorization are listed in the RSABIE. Sections 174 and following of Chapter II Water Management of Title III of Part II of the Regulation are the relevant provisions governing Water Management. Those provisions establish the terms and conditions for authorization applications, list the activities eligible for a Declaration of Compliance or an exemption, as well as the separate conditions that apply to the siting, modification and management of water and sewer systems.

It should be noted that ministerial authorizations are valid for a period of two years, during which period the authorized work must commence.