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Regulation number	Title
2011, c.230	Topsoil Preservation Act

Under section 23 of the Topsoil Preservation Act, the Lieutenant-Governor in Council makes the following Regulation:

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1This Regulation may be cited as the General Regulation - Topsoil Preservation Act.

“Act” means the Topsoil Preservation Act;(Loi)

“agricultural production” means the cultivation or management of land, crops or livestock for the purpose of producing food for humans or livestock;(production agricole)

“applicant” means a person applying for a permit;(demandeur)

“consolidated material” means soil that is not loose and friable;(substance solidifiée)

“development or undertaking” includes the development of land for the purposes of growing cranberries, the construction of a private road, the construction of any building or structure, other than a residential building or residential structure referred to in paragraph 3(2)(e), and the construction of a loading facility, parking facility or driveway, other than a driveway referred to in paragraph 3(2)(f);(aménagement ou opération)

“holder” means a person who is the holder of a permit issued under this Regulation;(titulaire)

“unconsolidated material” means soil that is loose and friable.(substance non solidifiée)

2(2)For the purposes of the Act and this Regulation

“parcel” means an area of land that constitutes a unit for the purposes of, and is identified by one and only one property identifier number by, the Service New Brunswick;(parcelle)

“site” means that portion of a parcel from which topsoil is, has been or is proposed to be, removed from its natural location;(endroit)

“topsoil” means soil containing 0.9 per cent or more organic carbon, as determined by the Walkley and Black method, and sand, silt and clay;(couche arable)

2(3)For the purposes of this Regulation, cranberry land development is not considered to be part of a normal farming operation.

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PERMITS

3(1)A person who wishes to remove topsoil from a site or move topsoil from a parcel shall apply for and obtain a topsoil removal permit by submitting a written application to the Minister, on a form provided by the Minister.

3(2)Notwithstanding subsection (1), a permit is not required in relation to

(a) the removal or moving of topsoil as part of the removal of sod to a depth of four centimetres or less,

(b) the removal of topsoil on a farm as part of normal farming operations, including terracing, waterway construction, ditching, land forming, other soil and water conservation activities and other movement of topsoil normally associated with farming, if no topsoil is moved outside the boundaries of the parcel on which the topsoil was originally located,

(c) the removal or moving of topsoil as an incidental part of the construction of a public highway or public road,

(d) the removal or moving of topsoil where the quantity of topsoil removed from the site or moved from the parcel does not, in any consecutive three month period, exceed five cubic metres,

(e) the removal or moving of topsoil incidental to the construction of a residential building or residential structure if the building or structure is located on a parcel that is one hectare or less in area; or

(f) the removal or moving of topsoil incidental to the construction of a driveway for a residential building or residential structure referred to in paragraph (e) if the driveway is located on the same parcel as the residential building or residential structure.

3(3)An application under subsection (1) shall

(a) be accompanied by an application fee of fifty dollars;

(b) contain

(i) the name and address of the applicant,

(ii) where topsoil is to be removed from a site, the name and address of each owner and the property identifier number of each parcel on which a proposed topsoil removal site is located, and

(iii) where topsoil is to be moved from any parcel, the name and address of each owner and the property identifier number of each parcel on which topsoil is or will be moved; and

(b.1) if made with respect to a development or undertaking, a description of the development or undertaking, including the area of land required for the development or undertaking and the time frame within which the development or undertaking is to be completed;

(c) be accompanied by a map prepared by Service New Brunswick, on which the applicant has indicated

(i) each parcel on which a proposed topsoil removal site is located and the boundaries of the site of the proposed topsoil removal, and

(ii) each parcel on which topsoil is or will be stockpiled and from which it is to be moved;

(d) if not made with respect to a development or undertaking, be accompanied by

(i) a written description of the proposed site, including information on the depth of unconsolidated material,

(ii) an operation plan, satisfactory to the Minister, that fulfils the requirements of subsection (4), and

(iii) a rehabilitation plan, satisfactory to the Minister, that fulfils the requirements of subsection 12(2); and

(e) be accompanied by any other information and material in relation to the application that is requested by the Minister.

3(4)An operation plan required under subparagraph (3)(d)(ii) shall contain

(a) a schedule setting out the amounts of topsoil to be removed from the site and the estimated dates on which removal of those amounts will commence and be completed, and

(b) a description of any other activities necessary to ensure that the operation is in conformity with the terms and conditions set out in section 10 and the other provisions of this Regulation.

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4(1)An owner of a parcel who wishes to permit topsoil to be removed from any site within the parcel or from the parcel by another person shall apply to the Minister, on a form provided by the Minister, for an owner’s topsoil removal permit.

4(2)Section 3, except paragraph (3)(a), subparagraph (3)(d)(ii) and subsection (4), applies with the necessary modifications to an application under this section.

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5(1)The Minister, upon being satisfied that an applicant has met the requirements of the Act and this Regulation, may issue a permit to the applicant.

5(2)The Minister may, in addition to any terms and conditions imposed under this Regulation, impose such additional terms and conditions on a permit as the Minister sees fit, which terms and conditions may vary for different holders or classes of holders.

5(3)A topsoil removal permit authorizes the removal of topsoil from the sites or the moving of topsoil from the parcels, as the case may be, only by the holder and the employees and agents of the holder and only from the sites and the parcels to which the permit relates.

5(4)An owner’s topsoil removal permit authorizes the owner to permit the removal of topsoil from a site within the parcel or from the parcel by the other person named in the permit, if the other person is the holder of a topsoil removal permit, and the employees and agents of that other person, and only from the site and the parcel to which the owner’s topsoil removal permit relates.

5(5)A person to whom a permit is issued shall comply with the terms and conditions of the permit.

5(6)A permit shall be valid for the calendar year in which it is issued.

6(1)Where an applicant applies for a permit and a parcel in respect of which the applicant applies has not been subdivided on or after May 1, 1995, and

(a) a total of two hectares or more of the parcel has been used for agricultural production at any time during the twenty years previous to the date of the proposed issuance of the permit, and

(b) the total area from which topsoil has been removed equals or exceeds five per cent of the total area of the parcel or two hectares, whichever is the lesser,

the Minister may refuse to issue a permit to an applicant.

6(2)Where an applicant applies for a permit and a parcel in respect of which the applicant applies was, on May 1, 1995, part of another parcel and

(a) a total of two hectares or more of that other parcel as constituted on May 1, 1995, has been used for agricultural production at any time during the twenty years previous to the date of the proposed issuance of the permit, and

(b) the total area from which topsoil has been removed equals or exceeds five per cent of the total area of that other parcel as constituted on May 1, 1995 or two hectares, whichever is the lesser,

the Minister may refuse to issue a permit to an applicant.

6(3)The Minister may refuse to issue a permit to an applicant if the Minister has reasonable and probable grounds to believe that

(a) the applicant has been convicted of a violation of a provision of the Act or the regulations,

(b) the applicant has refused or failed to comply with any term or condition imposed on a permit previously issued to the applicant,

(c) the applicant has refused or failed to comply with a Ministerial order or other order, in whole or in part, previously issued by the Minister to the applicant, or

(d) a permit previously issued to the applicant under the Act was cancelled during the previous five years.

7The Minister may suspend a permit for such period of time as the Minister considers reasonable or may cancel a permit if the Minister has reasonable and probable grounds to believe that the holder has

(a) refused or failed to comply with a provision of the Act or the regulations,

(b) has refused or failed to comply with any term or condition of the permit issued to the holder, or

(c) refused or failed to comply with a Ministerial order or other order of the Minister, in whole or in part.

8The Minister may reinstate a permit suspended under section 7 and may impose any terms and conditions that the Minister sees fit on a permit that has been suspended and is to be reinstated, which terms and conditions may vary for different persons or classes of persons.

TRANSPORTATION OF TOPSOIL

9(1)Every person who

(a) holds a topsoil removal permit, or

(b) who moves topsoil from a parcel or transports topsoil in, on or by a vehicle on a highway for or on behalf of a person referred to in paragraph (a),

shall comply with this section.

9(2)Every person, other than a person referred to in subsection (1), is exempt from this section and section 3 of the Act.

9(3)A holder of a topsoil removal permit shall have in the holder’s possession the original or a copy of the permit when moving topsoil from a parcel or transporting topsoil in, on or by a vehicle on a highway and shall produce the permit or copy for inspection, upon an inspector’s request.

9(4)A holder of a topsoil removal permit shall provide every person who moves the topsoil from a parcel or transports topsoil in, on or by a vehicle on a highway for or on behalf of the holder with a copy of the topsoil removal permit.

9(5)A person who moves topsoil from a parcel or who transports topsoil in, on or by a vehicle on a highway for or on behalf of the holder of a topsoil removal permit shall ensure that a copy of the permit is in the person’s possession while moving or transporting the topsoil and shall produce the copy for inspection, upon an inspector’s request.

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TERMS AND CONDITIONS OF PERMIT

10(1)A topsoil removal permit that is issued pursuant to an application in respect of which there is no proposed development or undertaking is subject to the following terms and conditions:

(a) if the parcel has not been subdivided on or after May 1, 1995, and if a total of two hectares or more of the parcel has been used for agricultural production at any time during the twenty years previous to the date of the issuance of the permit, the holder and the employees and agents of the holder, and no other person, may remove topsoil from the parcel only until, and never after, the total area of the parcel from which topsoil has been removed is five per cent of the total area of the parcel or two hectares, whichever is the lesser;

(b) if the parcel was on May 1, 1995, part of another parcel and if a total of two hectares or more of the other parcel as constituted on May 1, 1995, has been used for agricultural production at any time during the twenty years previous to the date of the issuance of the permit, the holder and the employees and agents of the holder, and no other person, may remove topsoil from the parcel in respect of which the permit is issued only until, and never after, the sum of the total area of the topsoil removed from the parcel for which the permit is issued together with the area of topsoil removed from any other parcel that was part of the other parcel as constituted on May 1, 1995, is five per cent of the total area of the other parcel as constituted on May 1, 1995, or two hectares, whichever is the lesser;

(c) the holder shall not remove or authorize or permit any person to remove topsoil from any area that is below the top level of the water table at the time of removal;

(d) if the site of the removal is subject to flooding, the holder shall not remove or authorize or permit any person to remove topsoil after the thirty-first day of July in any year and shall ensure that the site is rehabilitated and seeded with a cover crop in a manner and to an extent acceptable to the Minister before the end of August in the same year;

(e) if the site of the removal or any portion of the parcel on which the topsoil is stockpiled is subject to flooding, the holder shall ensure that all such stockpiles are removed by the thirty-first day of October in the same year;

(f) the holder shall ensure that the removal is carried out in such a way as to minimize erosion of the soil and to control the direct runoff of sediment into watercourses, using settling ponds if necessary;

(g) the holder shall ensure that the removal does not create a threat of injury to any person, result in damage to adjoining or nearby properties, adversely affect a wastewater removal system, watercourse or railway, street, road or other right-of-way, create permanent ponding, cause soil erosion, result in the release of a contaminant into or otherwise adversely affect the environment or render the rehabilitation of the site impracticable;

(h) the holder shall ensure that the depth of the unconsolidated material naturally remaining over consolidated material after the completion of the removal is at least fifteen centimetres;

(i) the holder shall ensure that the operation is carried out in accordance with the provisions of the operation plan provided with the application for the permit, as approved by the Minister;

(j) the holder shall ensure that the site of the operation is rehabilitated before the expiration of any applicable deadline in accordance with the rehabilitation plan provided with the application for the permit, as approved by the Minister; and

(k) the holder shall otherwise ensure that the removal and rehabilitation are carried out in accordance with the Act and this Regulation.

10(2)A topsoil removal permit that is issued pursuant to an application made in respect of a development or undertaking is subject to the terms and conditions set out in paragraphs (1)(f), (g) and (k).

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11An owner’s topsoil removal permit is subject to the terms and conditions set out in paragraphs 10(a), (b), (j) and (k), with the necessary modifications.

REHABILITATION

12(1)A holder of a permit other than one issued in respect of a development or undertaking shall, within the period of time indicated in this section, institute and complete the rehabilitation plan submitted with the application for the permit, as approved by the Minister.

12(2)The rehabilitation of the topsoil removal site shall, subject to paragraph (e), be completed by the end of the year in which a permit is issued, if the site is subject to flooding, and shall be completed by six months after the end of the year in which a permit is issued, if the site is not subject to flooding, and shall include

(a) removal of all equipment, buildings and structures placed or erected on the site for the purpose of topsoil removal,

(b) removal, or even distribution over the site, of any stockpiles and any soil, gravel, rock or other material that has been moved from its original location in the ground,

(c) clearing of all debris from the site,

(d) if the removal leaves any excavation more than one metre in depth, tapering of the slopes of the excavation to an angle not steeper than four horizontal to one vertical for the full depth,

(e) if the site is subject to flooding, seeding of those areas of the site that have been stripped with grass or other vegetation before the end of August in a manner and to an extent acceptable to the Minister in order to prevent soil erosion,

(f) if the site is not subject to flooding, seeding of those areas of the site that have been stripped with grass or other vegetation in a manner and to an extent acceptable to the Minister in order to prevent soil erosion, and

(g) management of the site in order to ensure that the grass or vegetation is maintained for a period of at least two years.

12(3)Notwithstanding subsection (2), equipment, buildings and structures referred to in paragraph (2)(a) may remain on a site that is not subject to flooding if the person applies for and receives a topsoil removal permit in respect of the same site before the first day of July in the following calendar year.

12(4)Where a topsoil permit for the removal of topsoil is issued in respect of a development or undertaking, the permit is subject to such terms and conditions respecting rehabilitation of the land that the Minister may impose under subsection 5(2).

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APPEAL

13In sections 14 to 16, “order” includes a Ministerial order.

14An appeal against an order or other decision of the Minister under the Act or this Regulation may be instituted by any one of the following persons:

(a) a person owning all or part of any site that is the subject of the order or other decision;

(b) a person who is the subject of the order or other decision;

(c) an applicant for a permit whose application has been refused or has been granted subject to additional terms and conditions imposed by the Minister; or

(d) any person whose permit has been cancelled or suspended.

15(1)A person referred to in section 14 who wishes to appeal from an order or other decision of the Minister

(a) shall, within fifteen days after being notified of the order or other decision or within such further time as may be allowed by the Minister, serve the Minister with a notice of appeal, setting out the particulars of the order or decision and the person’s grounds for appeal, together with all relevant facts and an address for service within the Province, and

(b) may, within thirty days after being notified of the order or other decision, serve the Minister with a written submission, setting out in detail the position of the appellant and annexing any supporting documentation and other pertinent information.

15(2)The Minister shall, within thirty days after being served with a written submission under paragraph (1)(b) or, if no written submission is served, after the last day on which a written submission could have been served under paragraph (1)(b), review the order or other decision appealed from and shall make a written determination of the matter, with reasons, confirming, varying or revoking the order or decision.

15(3)A copy of the written determination of the Minister shall be served upon the person who served the notice of appeal and upon all other persons who were notified by the Minister of the order or other decision appealed from.

16The institution of an appeal shall not operate as a stay and the order or other decision from which the appeal is taken has the same effect as it would have had if no appeal had been instituted.

17(1)Any notice or other document which is to be served upon the Minister shall be sufficiently served if it is delivered personally or sent by prepaid registered or certified mail to the Deputy Minister of Environment and Climate Change, P. O. Box 6000, Fredericton, New Brunswick, E3B 5H1.

17(2)Any notice or other document which is to be served upon any other person shall be sufficiently served if it is delivered personally or if it is sent by prepaid registered or certified mail to

(a) the last address of that person reported to the Minister under the Act or any regulation made thereunder, or

(b) the address for service endorsed upon the notice of intention to appeal served pursuant to subsection (1).

17(3)Service by prepaid registered or certified mail shall be deemed to be effected five days after the date the notice or other document is deposited in the mail.

2000, c.26, s.273; 2006, c.16, s.175; 2012, c.39, s.147; 2020, c.25, s.112

18(1)A person who violates or fails to comply with subsection 5(5) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.

18(2)A person who violates or fails to comply with subsection 9(3), (4) or (5) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.

19New Brunswick Regulation 94-70 under the Community Planning Act is repealed.

20This Regulation comes into force on May 1, 1995.

N.B. This Regulation is consolidated to December 18, 2020.

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