Q-2, r. 9.1 - Regulation respecting compensation for adverse effects on wetlands and bodies of water

Updated to 31 December 2021

This document has official status.

chapter Q-2, r. 9.1

Regulation respecting compensation for adverse effects on wetlands and bodies of water

Environment Quality Act

(chapter Q-2, ss. 46.0.3, 46.0.5, 46.0.12 and 95.1).

CHAPTER I GENERAL

O.C. 1242-2018, c. I.

1. This Regulation applies to activities subject to ministerial authorization under subparagraph 4 of the first paragraph of section 22 of the Environment Quality Act (chapter Q-2), herein called the “Act”.

More specifically, it provides the rules applicable to the compensation regime for adverse effects on wetlands and bodies of water provided for in Division V.1 of Chapter IV of Title I of the Act. It determines in particular the activities that are exempt from the requirement to compensate, the calculation method of the amount of the financial contribution payable as compensation and the cases in which the financial contribution may be replaced by work carried out to restore or create wetlands and bodies of water.

O.C. 1242-2018, s. 1; I.N. 2019-12-01; O.C. 1369-2021, s. 1.

2. This Regulation applies to the entire territory of Québec situated south of the 49th parallel, except the part of the territory covered by section 133 of the Act.

North of the 49th parallel, it applies

(1)  to the part of the territory covered by the St. Lawrence Estuary and the Gulf of St. Lawrence, including île d’Anticosti;

(2)  to part of the territory situated south of the St. Lawrence Estuary and of the Gulf of St. Lawrence; and

(3)  to the territories listed in Schedule I.

O.C. 1242-2018, s. 2.

3. Where this Regulation applies, it covers every immovable, including immovables in a reserved area or an agricultural zone established under the Act respecting the preservation of agricultural land and agricultural activities (chapter P-41.1).

O.C. 1242-2018, s. 3.

4. For the purposes of this Regulation, unless otherwise indicated by the context,

“forest development activity” means an activity referred to in paragraph 1 of section 4 of the Sustainable Forest Development Act (chapter A-18.1) that specifically targets forest enhancement and conservation;

“public body” means any body to which the Government or a minister appoints the majority of the members, to which, by law, the personnel is appointed in accordance with the Public Service Act (chapter F-3.1.1), or at least half of whose capital stock is derived from the Consolidated Revenue Fund;

“silvicultural treatment” means a forest development activity intended, as part of a given silvicultural regime and scenario, to direct the development of a stand, and in particular its renewal, or to improve its yield and quality.

In addition, unless otherwise provided for,

(1)  the expressions “watercourse”, “littoral zone”, “wetland”, “body of water”, “wooded wetland”, “open wetland”, “floodplain”, “lakeshore” and “riverbank”, “wooded peat bog” and “open peat bog” have the same meaning as in the Regulation respecting activities in wetlands, bodies of water and sensitive areas (chapter Q-2, r. 0.1);

(2)  paragraphs 1 to 4 of section 313 of the Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact (chapter Q-2, r. 17.1);

(3)  the bioclimatic domains are those referred to in Schedule III of the Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact.

O.C. 1242-2018, s. 4; O.C. 1369-2021, s. 2.

CHAPTER II ACTIVITIES EXEMPT FROM THE REQUIREMENT TO COMPENSATE

O.C. 1242-2018, c. II.

5. The following projects and work are exempt from the payment of a financial contribution payable under the first paragraph of section 46.0.5 of the Act to compensate for adverse effects on wetlands and bodies of water:

(1)  projects that result in a cumulative loss of area according to the type of environment concerned

(a)  of 30 m2 or less of open wetland or a body of water;

(b)  of 300 m2 or less of wooded wetland;

(2)  work to maintain, re-establish or improve the ecological functions of a wetland or body of water;

(3)  work carried out in the floodplain associated with a 100-year flood event of a lake or watercourse and, if it is demonstrated that the work will not result in a decrease of the flood routing capacity, work carried out in

(a)  the floodplain associated with a 20-year flood event; and

(b)  the floodplain where the 20-year and 100-year flood events are not distinguished;

(4)  work carried out after an activity referred to in section 31.0.12 of the Act;

(5)  (subparagraph revoked);

(6)  work subject to a general authorization within the meaning of section 31.0.5.1 of the Act when carried out in a watercourse whose geometry has already been modified in accordance with an agreement, municipal by-law or authorization, and work referred to in section 105 of the Municipal Powers Act (chapter C-47.1);

(7)  work related to the construction or alteration of a building used by a municipal fire safety service, a police force, a 9-1-1 emergency centre or a secondary emergency call centre governed by the Civil Protection Act (chapter S-2.3);

(8)  work for the maintenance dredging of a channel developed for navigation purposes, a port or municipal, commercial or industrial wharf, and the release of sediment in open water related to the work, where it is carried out on a site where such releases have already been authorized;

(9)  (subparagraph revoked);

(10)  work related to slope stabilization work carried out on the shore or bank or in the littoral zone of a lake or watercourse when using one of the following methods:

(a)  phytotechnology;

(b)  when the work relates to a road infrastructure, a water management or treatment facility referred to in section 32 of the Act or an electric power transmission and distribution network, where the work is carried out by a department, a public body or an entity that has jurisdiction in any of the territories listed in Schedule IV,

i.  a method combining phytotechnology and the use of inert woody materials;

ii.  a method combining phytotechnology and keyed rock infill;

(11)  work for sedimentary nourishment to counter a sedimentary deficit;

(12)  the development or expansion of a new parcel of land for the cultivation of non-aquatic plants and mushrooms, and work on infrastructures directly connected to such cultivation, when the activities are carried out in wooded wetland located outside the sugar maple-bitternut hickory bioclimatic domain;

(13)  with the exception of silvicultural drainage, silvicultural treatments carried out in an open wetland and other forest development activities carried out in a wooded wetland;

(14)  work to redevelop and rehabilitate an abandoned mining site carried out by the minister responsible for natural resources;

(15)  the work referred to in sections 29 and 30 of the Regulation respecting municipal wastewater treatment works (chapter Q-2, r. 34.1) carried out by a municipality to comply with the standards applicable to a wastewater treatment works.

For the purposes of subparagraph 12 of the first paragraph, activities carried out in a 100 m strip of wooded wetland bordering on an open peat bog of less than 4 ha are not exempted.

O.C. 1242-2018, s. 5; O.C. 871-2020, s. 1; O.C. 1369-2021, s. 3.

CHAPTER III CALCULATION OF THE FINANCIAL CONTRIBUTION

O.C. 1242-2018, c. III.

6. The amount of the financial contribution is calculated using the following formula:

The value of the factor “vl”, as determined in Schedule IV, is updated on 1 January each year, and the Minister publishes the result of the update by means of a notice in the Gazette officielle du Québec or by any other means the Minister considers appropriate.

O.C. 1242-2018, s. 6; O.C. 1369-2021, s. 4.

7. The basic cost for creating or restoring a wetland or body of water “bc” is set at $20/m2.

The cost is adjusted on 1 January of each year according to the rate calculated in the manner provided for in section 83.3 of the Financial Administration Act (chapter A-6.001).

The adjusted cost is reduced to the nearest dollar if it contains a fraction of a dollar less than $0.50; it is increased to the nearest dollar if it contains a fraction of a dollar equal to or greater than $0.50.

The Minister publishes the results of the adjustment by a notice in the Gazette officielle du Québec or by any other means the Minister considers appropriate.

O.C. 1242-2018, s. 7; O.C. 1369-2021, s. 5.

8. For the purpose of calculating the financial contribution, the surface area of the portion of the wetland or body of water subject to compensation for the loss of wildlife habitat is exempt from the surface area of the portion of the wetland or body of water in which the activity is carried out.

O.C. 1242-2018, s. 8.

9. Where an activity is carried out in a wetland situated in any of the following bodies of water, the financial contribution is calculated as follows:

(1)  in the littoral zone of a lake or watercourse, in accordance with the parameters provided for in Schedule III applicable to the littoral zone and at the value of factor “R” determined in Schedule IV applicable to a body of water;

(2)  in the lakeshore or riverbank, in accordance with the parameters provided for in Schedule III applicable to the lakeshore or riverbank and at the value of factor “R” determined in Schedule IV applicable to a body of water;

(3)  in a floodplain of a lake or watercourse, in accordance with the parameters provided for in Schedule II applicable to a wetland and at the value of factor “R” determined in Schedule IV applicable to a wetland.

O.C. 1242-2018, s. 9.

CHAPTER IV REPLACEMENT OF THE FINANCIAL CONTRIBUTION

O.C. 1242-2018, c. IV.

10. The Minister may, in accordance with the second paragraph of section 46.0.5 of the Act, allow the replacement of all or part of the payment of the financial contribution by work carried out to restore or create wetlands or bodies of water in the case of the following activities:

(1)  work related to a road infrastructure, a bike path, a hiking trail, a water management or treatment facility referred to in section 32 of the Act or an electric power transmission and distribution network, where the work is carried out by

(a)  a department, a public body or an entity that has jurisdiction on any of the territories listed in Schedule IV;

(b)  a person that has made an agreement with a municipality in accordance with subparagraph 1 of the first paragraph of section 145.21 of the Act respecting land use planning and development (chapter A-19.1);

(2)  exploration work referred to in section 108 of the Regulation respecting mineral substances other than petroleum, natural gas and brine (chapter M-13.1, r. 2);

(3)  work for mining mineral substances within the meaning of section 1 of the Mining Act (chapter M-13.1), other than petroleum, natural gas and brine;

(4)  the development or expansion of a new parcel of land for the cultivation of non-aquatic plants and mushrooms, and work on infrastructures directly connected to such cultivation, when

(a)  the activity is carried out in an open wetland other than an open peat bog with an area of at least 4 ha; or

(b)  the activity is carried out in a wooded wetland in the sugar maple-bitternut hickory bioclimatic domain;

(5)  work carried out in an industrial park, or as part of the development of such park;

(6)  the following forest development activities:

(a)  silvicultural drainage carried out in a wetland or on the shore or bank or in the floodplain of a lake or watercourse;

(b)  any other forest development activity carried out in an open wetland or on the shore or bank or in the floodplain of a lake or watercourse;

(7)  all work on the shore or bank or in the floodplain of a lake or watercourse when carried out by a government department, a public body on an entity having authority over one of the places listed in Schedule IV.

For the purposes of subparagraph 4 of the first paragraph, activities carried out in a 100 m strip of wooded wetland bordering on an open peat bog of less than 4 ha are not concerned.

The activities mentioned in the first paragraph exclude those referred to in section 5.

O.C. 1242-2018, s. 10; O.C. 1369-2021, s. 6.

10.1. An applicant who wishes to replace the payment of a financial contribution pursuant to section 10 must, when informed of the amount of the required financial contribution, file an application with the Minister for that purpose, accompanied by a plan of the work to restore or create wetlands or bodies of water.

The work that an applicant plans to carry out must target the following objectives:

(1)  in the case of work on wetlands:

(a)  the retention of the water surface to ensure a hydrological regime typical of a wetland;

(b)  a regeneration of hygrophilous vegetation after 3 years;

(2)  in the case of work on bodies of water:

(a)  an improvement in the hydrogeomorphologic state of the watercourse, along with habitat connectivity and heterogeneity;

(b)  the restoration of the natural dynamics for all the bodies of water on the site;

(3)  the presence, in the restored or newly created environments, of biophysical characteristics and plant associations that are typical of wetlands and bodies of water and approach the natural state of similar environments;

(4)  a contribution to the preservation of the habitat of a threatened or vulnerable species referred to in the Regulation respecting threatened or vulnerable wildlife species and their habitats (chapter E-12.01, r. 2) or the Regulation respecting threatened or vulnerable plant species and their habitats (chapter E-12.01, r. 3), as the case may be.

O.C. 1369-2021, s. 7.

10.2. The application referred to in the first paragraph of section 10.1 must contain an assessment of the relevance or the site selected for the work to restore or create wetlands or bodies of water, including the following information and documents:

(1)  the location of the site selected to carry out the work;

(2)  an assessment of the potential or need for the restoration or creation of wetlands or bodies of water on the site;

(3)  the environmental advantages and disadvantages of the work, with a description of the expected gains in terms of the area and ecological functions of the restored or newly created wetlands and bodies of water that will compensate for the damage caused by the project;

(4)  the land uses allowed on the site by the municipality under a zoning by-law.

O.C. 1369-2021, s. 7.

10.3. The plan of work to restore or create wetlands or bodies of water referred to in the first paragraph of section 10.1 must include the following information and documents:

(1)  a georeferenced map showing the location of the types of wetlands and bodies of water present on the site selected before the work is carried out, and of the wetlands or bodies of water that will be restored or created;

(2)  a detailed characterization of the site or sites selected to carry out the work;

(3)  the objectives of the work;

(4)  a detailed description of the work;

(5)  a plan of the work and the timeframe for carrying out the plan;

(6)  the monitoring measures that will be applied in the first, third and fifth years after the work is completed and any corrective measures that must be provided for following the work.

O.C. 1369-2021, s. 7.

11. The holder of a ministerial authorization is required to pay the financial contribution where the replacement work referred to in section 10 has not been carried out within the time periods set out in the authorization.

O.C. 1242-2018, s. 11.

CHAPTER V REIMBURSEMENT OF THE FINANCIAL CONTRIBUTION

O.C. 1242-2018, c. V.

12. In addition to the case provided for in section 46.0.9 of the Act, the Minister may reimburse, in whole or in part, the financial contribution paid by the holder of a ministerial authorization in the following cases:

(1)  the work resulted in a loss of surface area in a wetland or body of water less than that authorized;

(2)  the work was subject to compensation for a loss of wildlife habitat after the issue of the authorization.

The amount of the reimbursable contribution corresponds, as the case may be, to the surface area of the wetland or body of water that has not been affected by the work or the surface area subject to compensation for the loss of wildlife habitat.

In the case provided for in subparagraph 1 of the first paragraph, the application for reimbursement of the authorization holder must be accompanied by a study signed by any of the persons referred to in paragraph 1 of section 46.0.3 of the Act confirming the boundaries and surface area of the portion of the wetland or body of water affected by the work.

In the case provided for in subparagraph 2 of the first paragraph, the application for reimbursement must be accompanied by proof that the adverse effects on the wetland or body of water was subject to compensation for the loss of wildlife habitat.

Where the application for reimbursement is accepted, the Minister, depending on the applicable situation, amends or revokes the authorization concerned.

O.C. 1242-2018, s. 12.

CHAPTER VI FINAL

O.C. 1242-2018, c. VI.

13. (Revoked).

O.C. 1242-2018, s. 13; O.C. 1369-2021, s. 8.

14. This Regulation is assessed 2 years after it comes into force and every 5 years thereafter on the basis of the progress in the applicable scientific and technical knowledge on that matter.

O.C. 1242-2018, s. 14.

14.1. Section 46.0.5 of the Act does not apply to work, structures and other intervention carried out in the shore, bank or floodplain of a lake or watercourse until subparagraph 3 of the first paragraph of section 5, paragraphs 2 and 3 of section 9, subparagraph b of subparagraph 6 and subparagraph 7 of the first paragraph of section 10, and subdivisions 2 and 3 of Divisions I and II of Schedule III come into force.

O.C. 1291-2020, s. 1; O.C. 1369-2021, s. 9.

15. This Regulation comes into force on the 15th day following the date of its publication in the Gazette officielle du Québec, except subparagraph 3 of the first paragraph of section 5, paragraphs 2 and 3 of section 9, subparagraph b of subparagraph 6 and subparagraph 7 of the first paragraph of section 10, and subdivisions 2 and 3 of Divisions I and II of Schedule III that take effect on 31 December 2021.

O.C. 1242-2018, s. 15; O.C. 1291-2020, s. 2; O.C. 1369-2021, s. 10.

SCHEDULE I

(s. 2)

TERRITORY IN WHICH THE REGULATION APPLIES NORTH OF THE 49TH PARALLEL AND NORTH OF THE St. LAWRENCE ESTUARY AND THE GULF OF ST. LAWRENCE

  

O.C. 1242-2018, Sch. I.

SCHEDULE II

(ss. 5 and 6)

ADVERSE EFFECTS ON WETLANDS – DETERMINATION OF THE VALUE OF FACTORS “If INI” AND “NI”

  

O.C. 1242-2018, Sch. II; O.C. 1369-2021, s. 11.

SCHEDULE III

(ss. 6 and 9)

ADVERSE EFFECTS ON BODIES OF WATER – DETERMINATION OF THE VALUE OF FACTORS “If INI” AND “NI”

  

O.C. 1242-2018, Sch. III; O.C. 1369-2021, s. 12.

SCHEDULE IV

(ss. 6, 9 and 10)

CALCULATION OF THE FINANCIAL CONTRIBUTION – DETERMINATION OF THE VALUE OF FACTORS “R” AND “vl”

  

O.C. 1242-2018, Sch. IV; O.C. 1369-2021, s. 13.

TRANSITIONAL

2021

(O.C. 1369-2021) SECTION 33. Every application for the issuance, amendment or renewal of an authorization filed with the Minister under the Environment Quality Act (chapter Q-2) that is pending on 31 December 2021 is continued and decided in accordance with the Regulation respecting compensation for adverse effects on wetlands and bodies of water (chapter Q-2, r. 9.1) as amended by this Regulation.

SECTION 34. A person or municipality that, before 31 December 2021, is awaiting the issuance, amendment or renewal of an authorization under the Environment Quality Act (chapter Q-2) for an activity that, on or after date, is eligible for a declaration of compliance may file a declaration of compliance with the Minister for that activity.

Any documents required for a declaration of compliance that were previously filed for the application for authorization, amendment or renewal need not be re-filed.

The fee payable for the declaration of compliance need not be paid if the fee payable for the application for authorization, amendment or renewal has been deposited.

SECTION 36. Every application for the issuance, amendment or renewal of an authorization filed with the Minister under the Environment Quality Act (chapter Q-2) before 31 December 2021 for an activity that, on or after that date, is exempted, is continued and decided solely with respect to the activities that remain subject to ministerial authorization or an amendment of authorization pursuant to that Act.

The fee payable for the part of the application concerning an exempted activity may be refunded on request.

REFERENCES

O.C. 1242-2018, 2018 G.O. 2, 4533

O.C. 871-2020, 2020 G.O. 2, 2343A

O.C. 1291-2020, 2020 G.O. 2, 3410

O.C. 1369-2021, 2021 G.O. 2, 4615