Canada Gazette, Part I, Volume 160, Number 9: Maintenance and Repair of Ontario Municipal Drains Regulations

February 28, 2026

Statutory authority
Fisheries Act

Sponsoring department
Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Fisheries Act (the Act) prohibits activities that result in the death of fish or the harmful alteration, disruption, or destruction of fish habitat unless an exception is granted under the Act. In most cases, Fisheries and Oceans Canada (DFO) conducts project-specific reviews of project proposals to determine their impact on fish and fish habitat, and whether an exception should be granted. Prescribed works and waters regulations provide another form of Fisheries Act exception that eliminates the need for proponents to apply to DFO for Fisheries Act review and approval of their project, when the conditions of the regulation are followed, increasing clarity, transparency, predictability and efficiency of the regulatory process. This approach is well suited to situations where impacts on fish and fish habitat are predictable and can be effectively managed through standardized avoidance and mitigation measures. This is the case for a subset of routine maintenance and repair works, conducted in Ontario municipal drains.

Background

Implementation of a risk management approach

DFO is dedicated to using a risk management approach to manage impacts on fish and fish habitat. This approach incorporates tools that balance the regulatory burden of project reviews with the potential risks posed to fish and their habitats.

The Fisheries Act prohibits activities that result in the death of fish or the harmful alteration, disruption, or destruction of fish habitat unless an exception is granted under the Act. These exceptions are typically issued under the Authorizations Concerning Fish and Fish Habitat Protection Regulations (ministerial authorizations), which establish information requirements and processing timelines for project-specific reviews. In situations where impacts can be avoided through effective project design and the application of avoidance and mitigation measures, DFO employs less burdensome, non-regulatory tools such as codes of practice and letters of advice. Where impacts to fish and fish habitat are unlikely to be fully avoided, prescribed works and waters regulations are an additional approach that can be applied to except projects, or classes of projects, from the prohibitions via regulation, as opposed to project-specific review.

Class authorizations for maintenance and repair of Ontario municipal drains

Municipal drains are constructed or altered natural watercourses established by municipal by-law pursuant to the Ontario Drainage Act. Drains remove excess water from agricultural and nearby lands to improve crop productivity and control flooding. Drains also provide habitat for many species of fish. Municipalities are responsible for drain maintenance and repairs to ensure adequate movement of water, plant growth, and responsible operation of heavy equipment on fields.

DFO has developed a system to classify municipal drains in Ontario based on their flow, the spawning period of the fish species that are present in the drain, and the sensitivity of the fish species to drain maintenance and repair activities. In 2000, DFO created the class authorization process to streamline review and approvals of repair and maintenance activities in classified drains in Ontario. This process ensures the protection of fish species and fish habitat using standard avoidance and mitigation measures while saving both DFO and Ontario municipalities significant administrative and project costs.

Approximately 130 of these class authorizations are issued each year, representing roughly 40% of all ministerial authorizations issued under the fish and fish habitat protection provisions of the Fisheries Act. In each case, DFO staff must review the application, obtain internal approvals for authorization, and input data manually into a database. While the process to authorize these works is less burdensome than the typical ministerial authorizations process, it still requires considerable effort on the part of DFO and entails potential delays for municipalities.

Objective

The objective of the proposed Regulations is to provide an exception to the Fisheries Act prohibitions against the death of fish (subsection 34.4(1)) and the harmful alteration, disruption or destruction of fish habitat (subsection 35(1)) for a prescribed class of routine works, i.e. maintenance and repair of classified municipal drains in Ontario, in accordance with enforceable conditions.

The intended outcome is to eliminate the need for proponents to apply to DFO for Fisheries Act review and approval when undertaking repair and maintenance of Ontario municipal drains, when the conditions of the regulation are followed. The regulations will also provide a strong legal foundation for continuing, and improving, the current streamlined approach to the regulation of these works. Outcomes will include enhanced clarity, transparency and predictability of the regulatory process. The regulations will also have the benefit of increasing the efficiency of the Department in handling routine works, and by enabling the department to focus on the review of higher-risk major projects.

Description

The proposed Regulations would eliminate project-specific review of projects under the Fisheries Act through the automation of the existing class authorization process for municipal drain maintenance and repair in Ontario, when the conditions of the proposed Regulations are followed. The proposed Regulations would authorize the removal of sediment and vegetation from drain channels and removal of vegetation along bank slopes that are necessary to ensure proper drain flow and function. The proposed Regulations would apply to drains that have already been classified by DFO based on water flow, the species of fish present, habitat sensitivity, fish spawning times, permanency of flow and the presence of critical or exceptional fish habitat.

The proposal would apply to routine drain cleanouts in three classes of drains, in which impacts are well understood, and class-specific mitigation measures have been developed by DFO. Drain cleanouts in the other classes of drains would continue to be subject to existing policies and approval processes.

The following table summarizes the activities and conditions that would be authorized for each of the three classes of drains.

Table: Activities and conditions of drain classes
Drain class table 1 note a Class specific activities Mitigation measures
Class C municipal drain — Contains no species that are sensitive to drain cleanouts.
  1. Bottom cleanout
  2. Bottom cleanout plus one bank slope
  3. Bottom cleanout plus both bank slopes
 General mitigation measures apply.
Class E1 municipal drain — Contains sensitive species that require gravel substrate and riparian vegetation.
  1. Bottom cleanout
  2. Bottom cleanout plus one bank slope
 General mitigation measures apply, plus class-specific measures:
  • Gravel substrate may not be removed;
  • Removal of riparian vegetation confined to one bank slope, while retaining, if possible, the vegetation on the bank slope that provides shade to the drain segment.
Class E2 municipal drain — Contains sensitive species that require gravel substrate, and riparian and in-stream vegetation. To preserve in-stream vegetation, only one half of drain bottom may be cleaned out.
  1. Half bottom cleanout
  2. Half bottom cleanout plus one bank slope
 General mitigation measures apply, plus class-specific measures:
  • Gravel substrate may not be removed;
  • Removal of riparian vegetation confined to one bank slope, while retaining, if possible, the vegetation on the bank slope that provides shade to the drain segment.

Table 1 note(s)

Table 1 note a

Note: For the purposes of the proposed Regulations, unrated drain segments that are immediately upstream from any drain segments classified as C, E1, or E2 would be considered as the same class of drain segment.

Return to table 1 note a referrer

Conditions that would apply to all projects include submission of pre- and post-project notifications to DFO, completing prescribed activities within two years, not allowing a work, undertaking or activity to take place during the periods specified in the proposed Regulations to protect the spawning season, and controlling erosion and preventing sediment from entering the water and creation of two refugia pools for each kilometre of drain cleanout. All conditions would be mandatory and enforceable under the Fisheries Act.

More specifically, drainage superintendents would be required to send a pre-project notification to DFO 10 days before commencing work. The information to include in these notifications would include the name, address, telephone number, and municipality of the drainage superintendent or their representative; the location of the work, undertaking or activity (drain name, latitude, longitude, lot and concession); the drain classification (C, E1 or E2); specification of which prescribed maintenance and repair activities will be undertaken; and date-stamped photographs, taken in ice- and snow-free conditions, along various sections of the work zone that illustrate where maintenance and repairs are required.

Drainage superintendents would be required to send a post-project notification to DFO not more than 60 days after work has been concluded. The information included in the post-project notification would include confirmation that the prescribed activities in the pre-project notification were completed and date-stamped photographs, taken in ice and snow-free conditions, that in combination with the pre-project photographs illustrate the completed work.

Regulatory development

Consultation

Consultation on the proposal to regulate routine maintenance and repairs in Ontario municipal drains was conducted in 2022. Three engagement sessions were held on the proposal to put into regulation the current class authorization system for drain maintenance and repairs in Ontario. Two of the three sessions were held with Indigenous Peoples.

A total of 55 stakeholders participated in engagement sessions, including representatives from Ontario municipalities; Ontario Ministry of Agriculture, Food and Agribusiness (OMAFA), who is responsible for the Ontario Drainage Act and for making drain maps publicly available through Ontario’s open data website, GeoHub; and Ontario Conservation Authorities who are responsible for flood protection. No significant concerns or rights issues were raised during these engagements or in written comments provided to DFO.

DFO also engaged separately with the drainage superintendents and the OMAFA in January and February 2024. Given that the proposed Regulations would be replacing the existing class authorization process with minimal changes and impacts on municipalities, there was general support for the proposed Regulations. The drainage superintendents emphasized that the proposed Regulations should not result in an increase in regulatory burden over the current class authorization process. To the extent possible, the proposed Regulations replicate the current class authorization process; therefore, no additional regulatory burden is expected.

Indigenous engagement, consultation and modern treaty obligations

Indigenous engagement on the proposal included engaging with national Indigenous organizations and Indigenous Nations, Bands and Communities located in the region that would be affected by the proposed Regulation. There were no Indigenous opposition or concerns of potential impacts on Indigenous rights identified for the proposed Regulations.

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted for the proposed Regulations. The assessment concluded that that this proposal is unlikely to impact the rights, interests, and/or self-government provisions of modern treaty partners, as it would be mainly limited to the southern half of the province of Ontario where municipal drains are located. There are no modern treaties or self-government agreements in effect in, or adjacent to, these areas.

Instrument choice

Only a regulatory solution was considered because of the legal framework of the Fisheries Act. Projects that are likely to cause the death of fish or the harmful alteration, disruption or destruction of fish habitat would be in contravention of the Fisheries Act unless the project is authorized through any one of a number of exceptions listed in subsections 34.4(2) and/or 35(2). The most common exception applied by DFO involves the issuance of a ministerial authorization under paragraphs 34.4(2)(b) or 35(2)(b) of the Fisheries Act. The proposed Regulations would provide an exception under paragraphs 34.4(2)(a) or 35(2)(a), which applies to prescribed classes of works and prescribed waters.

Project-specific reviews would not be required providing that proponents comply with the conditions prescribed in the proposed Regulations.

Canadians expect regulators to use modern regulatory tools that are predictable, transparent, and enforceable. In the case of the works and waters prescribed in the proposed Regulations, the impacts on fish and fish habitat are predictable and thus lend themselves to the use of an automatic regulatory approval (as opposed to approval being contingent upon project-specific review), when transparent, enforceable avoidance and mitigation measures are followed. By eliminating the need for project-specific review and the application of project-specific measures, the proposed Regulations would provide enhanced clarity, transparency and predictability of the regulatory process. This would provide regulatory certainty and reduce administrative burden and processing time for both DFO and Ontario municipalities. For these reasons, the proposed Regulations are considered a better option than the status quo.

Factors to consider

The Minister of Fisheries and Oceans is required to consider the factors set out under section 34.1 of the Fisheries Act when considering whether to make regulations under subsections 34.4(4) and 35(4) of the Act. Consideration of all of the factors led to key findings that, given that these Regulations would focus only on preserving or restoring existing drains to their original, previously approved condition, it is not anticipated that it would result in significant cumulative effects or long-term impacts on the productivity of existing fisheries. This is supported by a 2017 study that found fish assemblages are resilient to drain maintenance and repair, and any changes are short-lived.footnote 1 Higher-risk activities, such as the creation of new drains or substantial modifications to existing drains, would be excluded from the proposed Regulations, as would activities in areas deemed to support highly sensitive aquatic species. The drain classification would dictate the maintenance and repair activities that are permitted, including prescribed measures and standards aimed at avoiding and mitigating unnecessary impacts on fish and fish habitat. No Indigenous knowledge has been provided to DFO regarding the proposed Regulations to date but any received would be considered in the development of the final Regulations.

Regulatory analysis

Benefits and costs

Analytical framework

The incremental impacts (benefits and costs) are assessed as a difference between the baseline and proposed regulatory scenario. The proposed Regulations would replace the existing class authorization process for municipal drain maintenance and repair through provisions under the Act that grant exceptions so that a project-specific review would not be required. Therefore, no incremental impacts are anticipated and a qualitative analysis is presented below.

Incremental costs and benefits

The proposed Regulations are not expected to result in incremental costs or benefits to businesses, consumers, governments, or Canadians. Ontario municipalities undertaking maintenance and repair of municipal drains would not incur any additional reporting beyond notifying DFO upon completion of the work. Collaborative arrangements for this purpose have already been established by DFO and the municipalities. In addition, DFO is adding new functionality to its online portal for proponents to facilitate the notification process for the drain maintenance and repair activities specified in the proposed Regulations, which is expected to provide a modest incremental reduction in administrative burden for proponents. No additional enforcement and compliance activities are anticipated to be undertaken.

Small business lens

The proposed Regulations would only apply to Ontario municipalities with responsibilities for drain maintenance and repairs under Ontario’s Drainage Act. Small businesses would not be impacted by this proposal.

One-for-one rule

The regulatory proposal applies to Ontario municipalities with responsibilities for drain maintenance and repair under Ontario’s Drainage Act. This proposal does not apply to businesses and, therefore, no incremental administrative burden would be imposed on them.

Regulatory cooperation and alignment

The proposed Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum. The proposal is aligned with the Ontario government’s legal framework for municipal drains under the Drainage Act. It is possible that an agricultural drain classification system could be developed by DFO for drains in other provincial or territorial jurisdictions. If this were to happen, similar regulations could be developed with the agreement of the province or territory.

In the United States, certain activities that have been classified as having negligible adverse effects are listed under section 404(f)(1) of the Clean Water Act as being exempt from the Act’s permitting scheme. The list includes, among others, maintenance of drainage ditches and construction and maintenance of irrigation ditches.

International obligations

The proposed Regulations are not related to any international obligations.

Effects on the environment

A Climate, Nature and Economy Lens analysis was conducted. No negative climate, nature or economy impacts are expected.

Gender-based analysis plus

No gender-based analysis plus impacts have been identified for this proposal, since it would provide the same functionality and conditions of the current class authorization process.

Implementation, compliance and enforcement, and service standards

Implementation

These proposed Regulations would come into force on April 30, 2026, but if they are registered after that day, they would come into force on the day on which they are registered. The proposed Regulations would replace the existing class authorization process for a subset of routine maintenance and repair works, conducted in Ontario municipal drains, while respecting any class authorizations which had already been issued.

DFO’s Ontario and Prairie Region office in Burlington has established cooperative processes for implementing and monitoring the existing class authorization process, which includes annual meetings with the municipalities and the ongoing exchange of information in the classification and reclassification of municipal drains. These activities would continue with the proposed Regulations.

DFO is adding functionality to its online portal to allow Ontario municipalities to notify DFO of drain maintenance works being conducted in accordance with the proposed Regulations. This new functionality will be operational before these Regulations come into force.

Compliance and enforcement

The proposed Regulations would carry forward the same level of enforceability as the existing class authorization process which includes the requirement for drainage superintendents to report on the implementation of drainage works.

Contact

Manager
Instruments Policy and Development, Permitting Operations and Policies
Fisheries and Oceans Canada
200 Kent Street, 10th Floor
Ottawa, Ontario
K1A 0E6
Email: DFO.FFHPP-PPPH.MPO@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Fisheries and Oceans proposes to make the annexed Maintenance and Repair of Ontario Municipal Drains Regulations under subsections 34.4(4)footnote a and 35(4)footnote b of the Fisheries Actfootnote c.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Manager, Instruments Policy and Development, Permitting Operations and Policies, Fisheries and Oceans Canada, 200 Kent Street, 10th Floor, Ottawa, Ontario K1A 0E6 (email: DFO.FFHPP-PPPH.MPO@dfo-mpo.gc.ca).

Ottawa, February 10, 2026

Joanne Thompson
Minister of Fisheries and Oceans

Maintenance and Repair of Ontario Municipal Drains Regulations

Definitions

Definitions

1 The following definitions apply in these Regulations.

Act
means the Fisheries Act. (Loi)
brushing
means the removal of vegetation without disturbing the soil or root systems. (débroussaillage)
class C drain segment
means a drain segment that is classified as “class C” under the classification system established by the Department of Fisheries and Oceans. (segment de drain de catégorie C )
class E1 drain segment
means a drain segment that is classified as “class E1” under the classification system established by the Department of Fisheries and Oceans. (segment de drain de catégorie E1)
class E2 drain segment
means a drain segment that is classified as “class E2” under the classification system established by the Department of Fisheries and Oceans. (segment de drain de catégorie E2)
drain segment
means a section of a municipal drain that has a uniform fish community assemblage and flow regime. (segment de drain)
municipal drain
means an altered or natural watercourse in Ontario that has been designated as a municipal drain by a municipal by-law made under the Drainage Act, R.S.O. 1990, c. D.17. (drain municipal)
refugia pool
means a habitat that provides refuge for fish during low flow conditions that is created by deepening and widening an area of the drain channel. (fosse de refuge)
unrated drain segment
means a drain segment that has no rating or that is classified as “NR” under the classification system established by the Department of Fisheries and Oceans. (segment de drain non classé)
work zone
means any area of a municipal drain where a work, undertaking or activity referred to in section 2 is carried out. (zone de travail)

Work, Undertaking or Activity

Maintenance and repair

2 (1) The following works, undertakings and activities are prescribed for the purposes of paragraphs 34.4(2)(a) and 35(2)(a) of the Act:

Limitation — gravel substrates

(2) It is prohibited to remove gravel substrates from the bottom of the drain channel while carrying out a work, undertaking or activity referred to in paragraph (1)(b) or (c).

Limitation — staged bottom cleanout

(3) If the staged bottom cleanout referred to in clause (1)(c)(i)(B) is carried out with respect to a class E2 drain segment, or an unrated drain segment immediately upstream of such a drain segment, it is prohibited to carry out any further cleanout of that drain segment for a period of one year after the day on which the staged bottom cleanout is completed.

Conditions

Prescribed conditions

3 Sections 4 to 6 are prescribed conditions for the purposes of paragraphs 34.4(2)(a) and 35(2)(a) of the Act.

Ontario municipality

4 (1) A work, undertaking or activity referred to in section 2 may be carried out only by a municipality in Ontario that is responsible for the maintenance and repair of municipal drains under section 74 of the Drainage Act, R.S.O. 1990, c. D.17.

Pre-project notice

(2) The municipality must notify the Minister at least 10 days before the day on which it begins any work, undertaking or activity referred to in section 2. The pre-project notice must contain

Post-project notice

(3) The municipality must notify the Minister within 60 days after the day on which it completes the work, undertaking or activity referred to in the pre-project notice. The post-project notice must contain

New pre-project notice

(4) The municipality must submit a new pre-project notice to the Minister under subsection (2) if

Prohibited periods

5 A work, undertaking or activity referred to in section 2 must not be carried out

Protection of fish habitat

6 A municipality that carries out a work, undertaking or activity referred to in section 2 must take the following steps to minimize the introduction of sediment into, and transport of sediment within, the work zone and the area extending one kilometre downstream of the bottom end of the work zone:

Coming into Force

April 30, 2026

7 These Regulations come into force on April 30, 2026, but if they are registered after that day, they come into force on the day on which they are registered.

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