Highway Construction and Failings of the Environmental Assessment Process
Contents |
Introduction
In May 2003, the ECO received an application under the EBR about the expansion of Highway 69 in the Muskoka region, which was constructed by the Ministry of Transportation (MTO) and its contractor, Pioneer Construction, beginning in 2000. The applicants were concerned about the obstruction of a water course and the resulting flooding of their land, which killed a number of mature trees. The applicants alleged contraventions of the Environmental Assessment Act (EAA) and the Environmental Protection Act (EPA).
Although the applicants focused on local environmental concerns about construction practices, the case illustrates much broader systemic problems, both with MTO’s conduct as the proponent of highway construction projects and with the monitoring of environmental assessment approvals by the Ministry of the Environment (MOE), which is responsible for enforcing the Environmental Assessment Act. (A more detailed review of this case is found on pages 303-310 of the Supplement.)
1995: The first environmental assessment
In 1995/1996, this highway expansion project had been the subject of an individual environmental assessment (EA) under the EAA. The development of the EA involved considerable disagreement between MTO and MOE. Among other things, MOE staff identified data gaps and deficiencies in MTO’s EA, and saw a need for more detailed, site-specific information and better discussion of anticipated impacts, as well the potential for mitigating those impacts. MTO resisted modifying the EA document. Eventually, in October 1996, the Minister of the Environment approved the EA – before detailed environmental studies had been carried out. However, terms and conditions attached to the EA approval did require that such studies be completed and submitted to MOE’s satisfaction before construction contracts were tendered.
Original complaints about flooding
Before resorting to their application for investigation under the Environmental Bill of Rights, the applicants had already complained directly to MTO and MOE about the flooding of land. MOE district staff looked into the complaints and decided that MTO’s contractor was in non-compliance with a part of the EA approval that had been issued for the project. An on-site meeting was held in October 2002, involving MOE, MTO, MTO’s contractor and the property owners. It was agreed that MTO would provide MOE and the property owners with a written proposal to address the concerns. However, without the approval of MOE or the property owners, MTO went ahead with work in early November to widen a ditch and create an access berm. MTO merely advised MOE by letter that the flooding issue had been resolved. MTO provided photos of its work, which MOE relied on to decide that the issue had indeed been taken care of.
Property Owners' Application for Investigation
The property owners did not agree that the flooding issue had been resolved, and submitted their EBR application for investigation in May 2003, emphasizing the obstruction of a natural water course, year-round flooding, extensive siltation, and faulty installation of culverts. The ECO forwarded this application to MOE.
MOE denied the applicants’ request for investigation, stating that the alleged contravention of the Environmental Assessment Act had already been investigated, and that the file had now been closed because the six-month statute of limitations had passed. MOE also decided not to investigate the contravention of the Environmental Protection Act because the adverse effects were not considered serious enough.
MOE's second site visit
However, to assess the flooding damage raised in the EBR application, MOE district staff undertook a second site visit in June 2003, and produced an internal memo stating that: “…there were trees killed by the recent flooding, but this should be pursued civilly by [the applicant]. Although it seems obvious the trees died from the flooding, one would have to prove this. Pursuing MTO for killing 15-20 mature trees possibly killed during a construction project is not a priority.”
MTO's commitments as part of EA conditions
MOE’s site visit also revealed that there were aggregate berms deposited on a wetland area, running parallel to the highway at several locations. This construction practice contravened a commitment that MTO had made under the EA approval, which was to keep excess construction materials at least two metres above groundwater and 30 metres from waterbodies.
MTO had also made several other commitments as part of the EA conditions of approval:
- watercourses shall not be diverted or blocked.
- construction material, excess material, construction debris and empty containers shall be stored or stockpiled away from watercourses and watercourse banks.
- excavated material is situated in such a manner and location to prevent the erosion and/or deposition of this material into wetlands or open water areas or onto private property.
- To the extent feasible, the existing drainage regime within the upland forest areas will be maintained. Ditch design and outlet points have been designed such that long term ponding of water will not occur in upland forest areas.
- existing drainage regime will be maintained for all wetland areas. Culverts have been provided at wetland edges and where the highway bisects a wetland to ensure that water can continue to flow within the wetland area.
It appears that these clear provisions also were not followed in this case.
MOE response to MTO's violations
Having uncovered these concerns, MOE took firm and, in the ECO’s view, appropriate action. MOE staff began to draft a Provincial Officer’s Order requiring MTO to carry out an environmental compliance audit on the completed portion of the Highway 69 expansion project. MOE issued this Provincial Officer’s Order to MTO on May 11, 2004, and also provided a copy to the applicants. A key requirement of the order is that MTO must hire a consultant to report on the construction practices and mitigation measures used in the Highway 69 project, and compare them to the procedures outlined in the EA approval documents, including a review of erosion control, diversion of watercourses, drainage studies, as well as handling and placement of excess materials. Among other things, the Provincial Officer’s Order requires MTO to adhere to the terms and conditions of the EA approval documents on any remaining portions of the undertaking. By January 2005, MTO must submit a final report to MOE outlining the results of the audit, and recommendations on how to improve issues identified for this and future MTO road construction and maintenance projects.
While the Provincial Officer’s Order should help to resolve the concerns about construction practices raised by this application, there are several additional issues deserving attention, notably MOE’s capacity to audit compliance with EA approvals.
MOE's Environmental Assessment Branch
Although MOE’s Environmental Assessment Branch had identified numerous deficiencies in the EA for this highway project in 1995/1996, it appears their involvement largely ended after the EA approval was issued in 1996. For example, according to a condition of EA approval, MOE’s Northern Region Director was supposed to be satisfied with reports provided by MTO prior to construction contracts’ being tendered. Reports were to include baseline data on current soil, air, water and sediment quality, especially for sensitive areas.
However, MOE can find no records to confirm whether MOE staff reviewed these reports or found them satisfactory. Also, EA compliance monitoring is not assigned to MOE district staff, so there was effectively no one at MOE auditing this file. In the absence of a complaint from the public, it seems that MOE had no mechanism to audit compliance.
Six month statute of limitations
Furthermore, MOE could prosecute only if the complaint was received within six months of the alleged contravention. But members of the public can complain only if they can recognize evidence of non-compliance, and they need the EA approval documents to do this. In this instance, the complainants asked MTO for the EA approval documents, but allege they were forced to use the Freedom of Information process, which apparently took a year. However, EA documents are intended to be public, and the complainants were directly affected parties. These multiple constraints effectively thwarted the efforts of the applicants to have MOE enforce the Environmental Assessment Act.
ECO Comment
The ECO saw no evidence that MOE investigated the applicants’ allegation that they had to resort to Freedom of Information legislation to access EA approval documents. MOE should have looked into this. Moreover, the ECO reminds MTO of its responsibility and stated commitments to transparent public consultation. MTO may need to review its practices in this regard, to ensure that this type of incident is not repeated.
This application illustrates very starkly how difficult it can be for members of the public to gain access to highway construction approval documents, permits or background scientific reports, or even to learn what approval documents might exist. At various times, the applicants asked MOE for copies of several approval documents, but it seems that MOE had neither access to nor knowledge of them. This is a serious concern, since MOE is required by law to maintain a record of EA approval documents, and to make them available to the public upon request.
Over the years, the ECO has received other applications with concerns about MTO’s highway planning processes and construction practices. For example, in 1997, applicants described a long-standing erosion problem on private property, caused by the construction of Highway 401. At the time, the ECO noted that “the ministries involved are urged to ensure that gaps and overlaps in jurisdiction over watershed management matters do not become a basis for allowing these types of problems to continue unaddressed for many years.”
Unfortunately, Ontario residents with environmental concerns about MTO’s highway construction policies and practices have rather limited opportunities to apply the normal EBR tools, because MTO is not prescribed for reviews under the EBR. This means that it is not possible to submit an EBR application requesting that MTO review its environmental policies and practices for highway construction. However, the ECO is hopeful that MOE’s issuance of a Provincial Officer’s Order will trigger a healthy discussion between the two ministries with regard to highway construction policies and practices, and that this discussion will ultimately lead to on-the-ground improvements.
In April 2004, MTO posted a proposal on the Registry for Environmental Protection Requirements for Transportation Planning and Highway Design, Construction, Operation and Maintenance (PE04E4551). The ministry explained that it recognized a need to develop a consistent, systematic approval to environmental management by improving how MTO assesses environmental risk and controls the environmental impacts resulting from its activities. The ministry is proceeding with an Environmental Standards Project as a first step, and has outlined a plan for posting notices on the Environmental Registry (XE02E4550). The ECO will monitor MTO’s progress on these postings.
Overall, this application illustrates a number of systemic weaknesses in the EA process: that MOE does not have the resources to properly monitor the large number of approvals it issues under the EAA; that MOE continues to rely on a complaint-based compliance model; and that MOE is practically unable to prosecute proponents for failures to comply with the EAA. The ECO urges MOE to address the unrealistically short six-month statute of limitations under the Environmental Assessment Act, the difficulties faced by members of the public when trying to access relevant EA approval documents, and the absence of compliance auditing of EA approvals. It would also be very helpful for MOE and MTO to work together on ensuring that MTO is prescribed for reviews under the EBR.
| Recommendation 13:
The ECO recommends that MOE address the difficulties faced by members of the public when trying to access relevant environmental assessment approval documents. |
| This is an article from the 2003/04 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2004. "Highway Construction and Failings of the Environmental Assessment Process." Choosing our Legacy, ECO Annual Report, 2003-04. Toronto, ON : Environmental Commissioner of Ontario. 145-150.]]
