Environmental Protection Requirements for Highway Projects: The Oak Ridges Moraine
In July 2005 the Ministry of Transportation finalized its Environmental Protection Requirements for Transportation Planning and Highway Design, Construction, Operation and Maintenance – Oak Ridges Moraine Component (EPR-ORM). It provides MTO’s interpretation of how legislation protecting the Oak Ridges Moraine applies to provincial highway projects, including new and modified highways and related structures such as interchanges, bridges, access roads, and drainage works. This policy is part of a larger MTO Environmental Standards Project launched in 2002. (An update on this project can be found on pages 202-203.) MTO says it plans to finalize all the related documents by the end of summer 2006.
The Oak Ridges Moraine Conservation Act (ORMCA) was passed in 2001 and the Oak Ridges Moraine Conservation Plan (ORMCP) in 2002. The Plan area map is divided into four land use designations. Highways and other transportation projects are one of the few new land uses permitted in Natural Core Areas and Natural Linkage Areas, the most protective land use designations, but only if “the need for the project has been demonstrated and there is no reasonable alternative.” Applicants must also demonstrate that a number of additional requirements will be satisfied.
The Plan also describes protections for key natural heritage features (e.g., wetlands) and hydrologically sensitive features (e.g., kettle lakes). These features are not included on Plan maps, but must be identified during project planning, using criteria in draft technical guidance documents prepared by the Ministries of Natural Resources and Environment (for more detail see Provincial Guidance …. page 85). Most development is prohibited in and around these features, but, again, highways may be permitted to cross them “if the applicant demonstrates that the need for the project has been demonstrated and there is no reasonable alternative.” Applicants must also demonstrate that a number of ecological protection requirements will be satisfied.
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Content of the EPR–ORM
MTO has translated the ORMCP provisions into 28 Environmental Protection Requirements. MTO has determined that the ORMCP requirement to demonstrate need and the lack of a reasonable alternative when planning highways in Natural Linkage Areas and Natural Core Areas will be demonstrated through federal and provincial environmental assessment (EA) processes.
MTO has included in the EPR-ORM several ORMCP requirements for special design and construction: keeping right-of-way widths, associated construction disturbance and the number of corridors to a minimum; facilitating wildlife movement; and minimizing adverse effects on the ecological integrity of the Plan Area. MTO has also clearly incorporated into the EPR-ORM a number of prohibitions, such as the prohibition on the disposal of stormwater into kettle lakes.
Other ORMCP restrictions have been incorporated with qualifiers added by MTO, since transportation projects are not considered “development” or “site alteration” under the current provincial planning legislation. For example, some water quality protection measures are prefaced with: “To the extent that is technically, physically, and economically practical…”
Implications of the decision
While the consolidation of ORM requirements into one document, along with other federal and provincial regulations, is helpful for MTO and its consultants and contractors, it does not introduce any new environmental protections that are not already law in the ORMCP . Nor does it provide any additional technical guidance to flesh out provisions open to interpretation. Because key requirements of the ORMCP are not presented in MTO’s document as conditions that have to be met before approval can be granted, there is a risk that these conditions will not be met.
MTO is still developing other policies to provide further direction to MTO consultants and contractors carrying out highway planning and construction. For example, MTO’s 2002 Environmental Reference for Highway Design, which gives specific guidance for highway construction projects, is being updated. MTO proposes to include a section that describes the higher standard set in the Niagara Escarpment, Oak Ridges Moraine and the Greenbelt Plan areas:
- While highway projects are permitted through the Plan areas, the environmental assessment must demonstrate that the highway project is needed and that there is no reasonable alternative to that being proposed. Project design and construction activities will be expected to be put through a higher environmental test . . .
The draft text of the updated Environmental Reference for Highway Design says that the consultant shall address the requirements of the ORM plan “as detailed in the Environmental Protection Requirements.” An appendix, which was still under development when the draft posted to the Environmental Registry for comment, will provide a list of considerations and requirements for an environmental impact study and environmental protection/mitigation in the Oak Ridges Moraine.
Public participation and the EBR process
Two major environmental groups submitted one comment jointly on the EPR-ORM when it was posted on the Environmental Registry. They take the position that there must be a moratorium on the planning and construction of 400-series highways and municipal roads of equivalent size throughout southern Ontario until the province has completed a comprehensive, transit-first transportation master plan for the entire area. They pointed out that a north-south highway system that crosses the Oak Ridges Moraine will inevitably affect either a Natural Core or Natural Linkage Area. Their primary concern was the shift in focus from the explicit nature of “shall not be approved,” as stated in the ORMCP, to the implicit “approval” included in the MTO policy.
ECO Comment
In the review of the ORMCA and ORMCP in the 2001/2002 ECO annual report, the ECO pointed out that allowing transportation and utilities in the entire Plan area seemed contrary to its objectives. The ECO has continued to raise concerns about broad-scale exemptions for transportation and utilities in land use planning – for example, in our reviews of the revised Provincial Policy Statement and of MTO’s Environmental Protection Standards in our 2004/2005 annual report.
MTO has done a reasonable job of incorporating most of the requirements of the ORMCP into its Environmental Protection Requirements. One major oversight is MTO’s failure to incorporate the ORMCP requirement to demonstrate need and meet other conditions before crossing key natural heritage features and hydrologically sensitive features.
The wording of the ORMCP implies that transportation projects will not be approved unless applicants demonstrate that they have met the tests in the Plan. The introduction to the Plan states that only very restricted new transportation uses are permitted within the most protected areas and that “they shall also have to meet stringent review and approval standards.” In practice, however, provincial and municipal road projects are planned and constructed under environmental assessment processes that are usually self-directed and assessed by the proponent, with no “applications” or “approval” by any agency that could consider whether the project meets the tests set out in the ORMCP. The ECO remains concerned about relying on EA processes to demonstrate compliance with the ORMCP, particularly since there are indications that the Ministry of the Environment is considering further streamlining of the EA approvals processes for transportation projects in response to recent requests by proponents and advisory committees.
If MTO’s Environmental Protection Requirements were all the guidance provided for highway construction projects in the Oak Ridges Moraine, the province would probably not deliver the protections the public is expecting of the ORMCP. MTO says, however, that technical guidance in the form of best practices and tools is still to come in a forthcoming appendix to the Environmental Reference For Highway Design and various Environmental Guides. The ECO will monitor the development of the technical guidance and the implementation of the Environmental Standards Project.
There is still a need for guidance for regional and local roads as well as for provincial highways. The Ministries of Transportation and Municipal Affairs and Housing advised the ECO in 2004 that MTO was first preparing standards for provincial highways, and then for regional and local roads at a later date. As of March 2006, however, MTO is no longer planning to prepare guidance documents for regional or local roads, due to time and budget constraints. Given the significant growth pressures in the area of the Oak Ridges Moraine, the ECO encourages the provincial ministries to develop technical guidance in a timely manner for municipal roads in the ORM Plan area.
(For a more detailed discussion of this issue, see the Supplement to this report, pages 63-69.)
| Recommendation 7:
The ECO recommends that MAH, MTO, MNR and MOE collaborate to develop technical guidance regarding municipal roads in the ORM Plan area and finalize their draft guidance to municipalities regarding natural heritage and water protection. |
| This is an article from the 2005/06 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2006. "Environmental Protection Requirements for Highway Projects: The Oak Ridges Moraine." Neglecting our Obligations, ECO Annual Report, 2005-06. Toronto, ON : Environmental Commissioner of Ontario. 81-86.
