New Proposed Regulatory Framework for Work in Flood Zones, Wetlands And Bodies of Water

On June 19, 2024, the Minister of the Environment, the Fight Against Climate Change, Wildlife and Parks (”MEFCCWP”) published several draft regulations on bodies of water and flood protection works (the ”Draft Regulations”) intended to replace the interim management regime for flood zones, lakeshores, riverbanks and littoral zones (available in french), in effect since March 1, 2022 (the "Interim Regime").

The publication of the Draft Regulations is an important step in the Government of Quebec’s Flood Protection Plan (in French only) following the 2017 and 2019 floods.

Your Fasken Environmental Law team has put together an overview of the key changes being proposed.

New Classification and Mapping of Flood Zones

• Expansion of flood zones: new flood zone maps will be drawn up, and the MEFCCWP estimates that the areas subject to the flood zone protection regime will be expanded by 30% to 40%.

• The new maps will take into account the frequency of flooding, its intensity and the impacts of climate change. They will be based on the latest scientific knowledge and will be developed in collaboration with municipalities.
• New flood zone mapping will be phased in gradually once the regulations come into effect.

Given that the mapping and classification of flood zones is not yet completed, it is difficult for individuals and organizations subject to these Draft Regulations to anticipate their full impact. However, the MEFCCWP has published draft guidelines for the establishment of flood zones and channel migration zones (in French only) to help understand the changes to the method for determining zone boundaries.

It should also be noted that neither the Environment Quality Act (“EQA”), nor the regulations in effect, nor the Draft Regulations provide the possibility to contest the boundaries of such flood zones once they are established. Paragraph 4 of section 46.0.2.2 of the EQA stipulates that the Minister of the Environment, the Fight Against Climate Change, Wildlife and Parks, after consulting the Minister of Natural Resources and Wildlife, must publish in the Gazette officielle du Québec a notice that the boundaries of the flood zones of lakes and watercourses and the channel migration zones of watercourses have been established. Any such notice could be subject to judicial review in the Superior Court. 

Determining littoral zone boundaries: the method of determining the boundaries of littoral zones and certain flood zones would be set out in Schedule 1 of the new Regulation respecting regulatory measures for activities under the responsibility of municipalities carried out in bodies of water and on flood protection works, replacing the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, and would depend on various factors such as the presence of works or special ecological conditions.

Overview of the Proposed Regulatory Amendments

This revised draft regulatory framework proposes several modifications compared to the Interim Regime currently in effect:

Publication of the Regulation respecting the regulatory measures for activities under the responsibility of municipalities carried out in bodies of water (“RAMW”):

• This regulation is the core of the new regulatory regime, and its application would be largely delegated to municipalities.
• Framework for delineating channel migration zones of watercourses: these zones, which would not be included in flood zones, would be defined as an “area in which the bed of the watercourse may shift as a result of physical processes, including erosion and sedimentation.” Depending on the rate of erosion and meander cutoffs, these channel migration zones would be classified as either short- or long-term zones, and certain activities would be prohibited or regulated. For example, a residential building and any associated structures or accessory buildings would be prohibited in a short-term channel migration zone.
• Creation of flood zone categories: Under the Draft Regulations flood zone categories have been expanded to represent very high, high, moderate, or low flood risks. Which activities are prohibited or permitted will continue to depend on a zone’s classification, for example:

• Rebuilding an existing residential building would be prohibited in very high flood hazard zones. 
• Expansion of existing residential buildings would be possible in low and moderate flood hazard zones, and possible in high and very high flood hazard zones only when there is a plan to move essential living spaces.
• The construction of a residential building in a new sector located in a flood zone would be prohibited.

• Requirement to obtain a municipal permit: municipalities would be responsible for issuing permits to carry out several activities in bodies of water and flood zones that are not subject to a ministerial authorization or a declaration of compliance under the Environment Quality Act, including:

• In a body of water:

• construction and dismantling of residential accesses and certain roads; 
• construction and dismantling of any sewer, waterworks or storm water management systems; 
• construction of any main serving a residential building that is connected to a waterworks, sewer or stormwater management system, subject to certain conditions;
• stabilization work, such as the construction of a stabilization structure or a retaining wall associated with a culvert;
• construction and dismantling of a structure to cross a watercourse or to access a building or structure located in the littoral zone.

• In a flood zone and in a channel migration zone:

• construction and demolition of a residential building, its structures and accessory buildings;
• construction and demolition of a non-residential building that does not involve excavation work, subject to certain conditions.

• Conditions to carry out activities subject to a municipal permit: the regulation sets out many conditions, which vary according to the type of activity and the flood zone category.

• The conditions apply to activities such as site remediation and vegetation management, excavating and backfilling, use of vehicles and machinery, and construction work on buildings.

• Flood risk management plan:

• Regional county municipalities (“RCMs”) could adopt a management plan to allow certain activities in their territory, subject to certain conditions.
• RCMs will have to review their management plan every 10 years, or earlier if flood zone boundaries are modified or after any flooding event.

• Penalties: Significant fines ranging from $2,500 to $6,000,000 would be applicable for non-compliance with the regulation, both for municipalities and for individuals or corporate entities.

Major change – Framework for flood protection works (“FPWs”):

• Publication of the Flood Protection Works Regulation (“FPWR”):

• The FPWR would aim to establish a number of measures to ensure better regulation of FPWs for the benefit of community safety.
• These measures include a requirement to conduct a characterization study for each FPW every ten (10) years, a requirement to meet design and performance requirements for FPWs and the prohibition of certain activities on FPWs.
• Certain information must be entered in the new Register of FPWs and the Land Register.

• Other regulations would also govern work related to FPWs, for example:

• Under the RAMW certain FPW-related activities would be subject to a municipal permit.
• The Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact (“RAEI”) would be modified to:

• require ministerial authorization for the construction and dismantling of any FPWs; 
• exempt the maintenance of any FPWs from ministerial authorization, subject to certain conditions; 
• require a declaration of compliance to replace any FPW-related structure or construction, subject to certain conditions.

• The Regulation respecting the environmental impact assessment and review of certain projects (“REIARCP”) would incorporate most projects related to the construction, extension, raising, lowering, shortening, conversion, demolition or neutralization of any FPWs into the list of activities subject to an environmental impact assessment and review.

Regulation respecting activities in wetlands, bodies of water and sensitive areas (“RAWBWSA”):

• The RAWBWSA applies to activities carried out in wetlands and bodies of water that are not covered by the new RAMW.
• Based on the given environment, it sets out prohibited activities, conditions that apply to certain activities and applicable penalties.
• The RAWBWSA would be amended to add restrictions, conditions and prohibitions for certain activities carried out in wetlands and bodies of water, including:

• Snow dumping on riverbanks and lakeshores, littoral zones or wetlands would be prohibited;
• Stabilization structures would have to be revegetated following completion of the construction work.

• The RAWBWSA would also be amended to add restrictions, conditions and prohibitions to certain activities specifically carried out in bodies of water. For example, permanent and underground parking areas would be prohibited in littoral zones, lakeshores, riverbanks, and in short-term channel migration zones. 

Amendments to the Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact (“RAEI”):

• The RAEI would be amended to revise the requirements for activities carried out in wetlands or bodies of water.
• Several works carried out in wetlands and bodies of water that are currently subject to ministerial authorization would become eligible for a declaration of compliance, subject to certain conditions, including the:

• construction of a surface water withdrawal facility;
• replacement or repair of a culvert. 

• Tighter exemption criteria are proposed, including for the encroachment of docks and boathouses on lakeshores, riverbanks and littoral zones. In addition, certain activities in bodies of water that were exempt may no longer be exempt when carried out in channel migration zones.

Amendments to the Regulation respecting compensation for adverse effects on wetlands and bodies of water (“RCAEWBW”)

• Work performed in all classes of flood zones would be exempt from the payment of a financial contribution to compensate for adverse effects on wetlands and bodies of water.

Publication of the Regulation providing the transitional rules that apply to boundary changes for flood zones and channel migration zones and to the implementation of regulations establishing a new development regime in flood zones and regulating flood protection works:

• This regulation would set out the transitional rules for projects that are in progress and affected by any boundary changes to flood zones or channel migration zones. Accordingly, subject to certain conditions, any activity that was commenced in an area subsequently affected by any change to boundaries of the relevant flood zone or channel migration zone could continue, even if that change entailed stricter measures. 

Amendments to existing regulations: more than 33 regulations currently in effect would be amended for harmonization purposes.

Next Steps

The Draft Regulations are currently undergoing a public consultation process until September 17, 2024. These regulations can be found at: https://www.publicationsduquebec.gouv.qc.ca/fileadmin/gazette/pdf_encrypte/lois_reglements/2024A/106893.pdf. At the end of this period, the final versions of these Draft Regulations will be published and phased in. It should be noted that the Interim Regime, in effect since March 1, 2022, will cease to apply only when the revised regulatory framework comes into force.

For more information or to discuss a particular matter, please contact us.