Oak Ridges Moraine Conservation Act
The Oak Ridges Moraine (ORM) is a unique ecological and hydro- geological feature, spanning more than 160km in southern Ontario. Its diverse natural habitats are home to a wide range of plant and animal species, including many species at risk. The Moraine also supports substantial surface water resources and holds significant groundwater resources. With the exception of the Niagara Escarpment, land use planning laws and policies have historically not protected environmentally significant and sensitive landforms, including the Moraine. This unique landform faces enormous development pressures that threaten to further fragment and degrade it. The Oak Ridges Moraine Conservation Act (ORMCA) is the culmination of a long process of public advocacy to protect the ORM.
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The Oak Ridges Moraine Protection Act
In May 2001, the Ontario Government enacted the Oak Ridges Moraine Protection Act in order to place a six-month moratorium on planning instruments and stay development applications before the Ontario Municipal Board involving lands on the ORM. During this six-month period, the government carried out public consultations through the Environmental Registry, advisory panels and stakeholder meetings. A consultation paper, “Share Your Vision for the Oak Ridges Moraine,” was released in August 2001 and used as the basis for consultation. A consultation notice was placed on the Registry and four public open houses/hearings and six stakeholder sessions were held across the ORM in late August and early September 2001. In December 2001, the ORMCA was enacted by the Ontario Legislature. A provision in the Act deems it to have come into force on November 16, 2001, making it retroactive.
The Oak Ridges Moraine Conservation Plan
The Act allows the establishment by regulation of the Oak Ridges Moraine Conservation Plan, which was finalized on April 22, 2002. The Act says that the objectives of the Plan are to:
- Protect, improve and restore the ecological and hydrological integrity and functions of the Moraine.
- Ensure that the Moraine is maintained as a continuous natural landform and environment for present and future generations.
- Provide for land and resource uses and development compatible with the other objectives of the Plan.
- Provide for a continuous recreational trail through the Moraine.
A review of the Plan must be carried out every 10 years to determine whether it should be revised, but such a review is prohibited from considering removing land from the natural core areas or natural linkage areas. In addition, the minister may make amendments to the Plan, but they must conform to the objectives of the Plan. All decisions made under the Planning Act or the Condominium Act relating to lands on the Moraine must comply with the Plan, and the Plan will prevail if it conflicts with an Official Plan, zoning by-law or Provincial Policy Statement.
The ORMCA requires public participation for any decisions made under the Act. In the 10-year review of the Plan, the minister must consult with affected ministries and public bodies and with the council of each municipality or municipal planning authority with jurisdiction in the Moraine area, and ensure that the public is given an opportunity to participate in the review. A more limited consultation requirement applies to proposed amendments to the Plan.
MAH has also informed the ECO that it is committed to prescribing the ORMCA under the EBR, so that the public receives notice and has the opportunity to comment on regulations and instruments related to the ORMCA, and is able to make applications for review in relation to the Act.
Key Features of the Plan
The Oak Ridges Moraine Conservation Plan sets out conditions for future land use, development, site alteration and the use of buildings. In general, it does not affect existing uses or prevent the expansion of existing buildings as long as there is no change in use. The Plan sets out four land use designations and the permitted uses for each, with fewer activities allowed in each more protective designation. Accompanying the Plan is a map showing how the Plan Area has been divided into the four land use designations.
Natural Core Areas, which cover 38 per cent of the Plan Area, are intended to protect areas with a high concentration of key natural heritage and hydrologically sensitive features. The only new uses permitted in Natural Core Areas are resource management activities, agricultural uses, home businesses and industries, low-intensity recreational uses and new transportation, infrastructure and utilities. These land uses are permitted in all designations. Natural Linkage Areas cover 24 per cent of the Moraine and protect linkages between the Natural Core Areas and along rivers and streams. New aggregate operations are the only additional permitted use. Countryside Areas cover 30 per cent of the Plan Area and are intended to provide an agricultural and rural buffer. Additional permitted uses in Countryside Areas include rural settlements or hamlets; new small-scale commercial, industrial and institutional uses; major recreational uses such as golf courses or ski hills; and some residential development in the eastern portions of the Plan Area. Settlement Areas comprise only 8 per cent of the Plan Area and are intended to focus and contain growth. All uses allowed in applicable official plans are permitted, subject to the additional provisions of this Plan. Fully 62 per cent of the Plan Area is designated as core protected areas and corridors, and there will be little new residential development except in the settlement areas.
The public will have non-motorized recreational access to a trail running the length of the Plan Area, and a 550-hectare public park will be established in Richmond Hill through donations and exchanges for provincially owned lands off the Moraine. The Plan contains provisions to protect ecological and hydrological features and functions, regardless of land use designation. The Plan identifies key natural heritage, hydrological and landform features and describes restrictions and requirements for development in and around these features. All development within a key natural heritage or hydrologically sensitive feature or its minimum protection zone is prohibited, except for new transportation, infrastructure and utilities, and low-intensity recreational uses.
Specific land use provisions provide the details and conditions of permitted uses. Municipalities may enact more restrictive policies than those in the Plan, except regarding agricultural uses or pits or quarries. New pits and quarries are permitted in all designations other than Natural Core Areas, but applications must meet ORMCA Plan criteria in addition to the requirements of the Aggregate Resources Act. While golf courses, serviced playing fields, serviced campgrounds and ski hills are allowed in Countryside Areas, applications must demonstrate that water use and application of fertilizers and pesticides will be kept to a minimum.
Transportation, infrastructure and utilities are permitted throughout the Plan Area, including public highways, transit lines, railways, gas and oil pipelines, sewage and water service systems, and power transmission and telecommunications lines.
Applications for these uses must demonstrate the need for the project, as well as allowing for wildlife movement and keeping any adverse effects on the ecological integrity of the Plan Area to a minimum. However, the Plan does not include criteria or review and approval procedures for determining whether the need has been demonstrated. MTO reported to the ECO in April 2002 that through their participation in the ORM initiative, “MTO has taken a leadership role in the development of policies and approaches that are designed to support a best practices approach to mitigating the impact of transportation infrastructure on the natural environment. As the government puts in place the mechanisms to implement the Oak Ridges Moraine legislation, MTO will continue to play a leadership role in helping to ensure that the principles involved in the plan are achieved.”
Most members of the public who commented on the proposed Plan said that no new aggregate operations or pits and quarries should be allowed in the Natural Linkage Areas or ever considered for the Natural Core Areas. The ECO believes that these concerns of the public are ecologically justified. In the final Plan, pits and quarries are allowed in all but Natural Core Areas. Further, the implementation document attached to the Plan says the 10-year review may consider whether to change the provisions of the Plan to permit establishing new mineral aggregate operations and wayside pits and expanding existing ones in Natural Core Areas. Municipalities, in fact, are encouraged to enact more restrictive policies than those in the Plan, except regarding agricultural uses or pits or quarries.
The Plan is similar to the Niagara Escarpment Plan in its ecological basis. First, it attempts to identify the ecological forms and functions, including their connections, which must be protected. Second, it seeks to create a buffer between these areas and urban centres. This approach represents progressive environmental planning. While the Plan does not affect existing land uses, it adds new restrictions and planning requirements on future development, depending on the land use designation and proximity to any natural heritage features, hydrological features, wellhead protection areas and areas of high aquifer vulnerability. All of these features of the Plan, depending on how well they are implemented, should ensure that the key woodlands, wildlife habitat, landforms, wetlands, kettle lakes, headwaters and groundwater resources are preserved.
The Plan’s provisions for protecting natural heritage and hydrological features and functions are mandatory and not just policies that decision-makers must “have regard to,” and they take precedence over other Acts and plans. For example, the Plan lists more types of natural heritage features, including rare species and kettle lakes, than does the Provincial Policy Statement, and does not require them to be identified as “provincially significant” in order to be protected. Setting out the areas of influence and minimum vegetation protection zones in metres for each type of feature provides clearer and more defensible rules. Previously in the Oak Ridges Moraine Area (and to this day, elsewhere in the province), the application of the natural heritage policies was variable, because ministry guidance documents are vague and their use optional.
It is not known at this time what effect the Act and Plan will have on development patterns in the areas adjacent to the boundaries of the Plan Area. MAH maintains that the Act and Plan are key elements of its Smart Growth strategy, in steering development toward existing settlement areas and away from protected areas. Development interests have claimed that the result will be “leap-frog” development north and east of the Plan Area. Environmental groups, municipalities and others praised the government for stopping sprawl on the Moraine, but urged the government to prepare a Smart Growth strategy for the rest of south-central Ontario to avoid redirecting development to the prime farmlands and natural areas adjacent to the Moraine.
Implementation
When the Plan was finalized in April 2002, the implementation provisions had been moved into a separate document. It says that the Plan provides direction to provincial ministers, ministries and agencies, municipalities, municipal planning authorities, landowners and other stakeholders. Ministries of the provincial government will “make available to users of the Plan” maps and technical information on the Key Natural Heritage Features, where available, as well as criteria for the identification and mapping of these features, hydrological features and landform conservation areas and areas highly vulnerable to groundwater contamination. Ministries will also update or create new technical guidelines to help the users of the Plan to understand, interpret and implement the provisions of the Plan. These will include manuals on natural heritage, landform conservation, stormwater planning, water budget and water conservation plan preparation, and watershed and subwatershed plan preparation.
Also, Ontario Government ministries — in partnership and in consultation with various stakeholders — will establish a data management system, including a database, performance indicators and a monitoring network, in order to assess changes to the ecological integrity of the Moraine and monitor the effectiveness of Plan implementation. The indicators will attempt to measure ecological change, assess the effectiveness of the Plan in achieving its objectives, and help identify improvements needed to address problems. Unfortunately, there are no timelines and no clear indication of responsibility and accountability for the government’s plan to establish these tools. The ECO urges MAH, MNR and MOE to take responsibility, set targets and timelines, and begin planning these monitoring, indicator and evaluation systems immediately.
There will undoubtedly be economic and social impacts on municipalities and the private sector. Municipalities must now carry out additional studies of natural heritage and hydrological features, revise their Official Plans, prepare watershed and subwatershed plans, water budgets and conservation plans. Municipalities must establish wellhead protection areas and policies in their Official Plans. They must also apply an additional set of rules when evaluating development applications. Applicants will have to carry out additional studies and minimize adverse impacts as required by the Plan. Developers, farmers and small landowners may lose anticipated income or profits.
Concerns were expressed in public comments about how effectively the Act and Plan would be implemented. Most commenters urged the province to carry out the necessary resource inventories and take a greater role in administering the Plan, either through establishment of a commission like the Niagara Escarpment Commission, or by strengthening the roles of MNR and MOEE. Municipalities agreed with the idea that they implement the Plan, but asked the province to map all the areas with ecological constraints to development and to allow municipal policies to be more restrictive than the Plan. They also asked that the province either exempt development controls from appeal to the OMB or else be responsible for defending the Plan before the OMB and courts.
The implementation material attached to the Plan indicates that the province anticipates a minor role for itself in implementation. Most of the upper tier municipalities, which have demonstrated their commitment to the Act and Plan, have specialized technical and environmental planners. But it is less likely that all of the lower tier municipalities have the resources or expertise to carry out the studies and evaluations set out in the Plan.
ECO Comment
The ORMCA and the Plan are important steps forward in environmental land use planning in Ontario. If the Plan is successfully implemented, the natural features and functions of the Moraine are likely to be maintained, and the public will have access to a large public park and recreational trail. The ECO commends the government for enacting the ORMCA and the Plan, and recognizes the work of the staff of the various ministries involved, the members of the external advisory panel, municipalities and environmental groups, and the thousands of Ontarians who made submissions.
The ECO acknowledges the difficulty of doing this work so quickly. Developing and finalizing the Plan within a year was a remarkable achievement. Overall, MAH did an excellent job of balancing the competing interests and submissions. The ECO also commends MAH for its commitment to comply with its EBR obligations by prescribing the ORMCA under the EBR.
In the ECO’s opinion, the Plan’s provisions for protecting natural heritage features and hydrological features and functions are far superior to those of the Planning Act and the Provincial Policy Statement. MAH should consider using this model to improve land use planning and decision-making throughout southern Ontario. However, allowing transportation and utilities in the entire Plan Area, even in Natural Core Areas and in natural heritage or hydrologically sensitive features, seems contrary to the objectives of the Plan. Since there are no mitigation measures nor criteria for interpreting the transportation provisions in the Plan, the ECO anticipates that new policies to clarify this point will be developed and shared with the public on the Registry for comment.
The ECO is concerned about implementation of the Plan. The ECO urges the provincial government to assist municipalities by providing baseline information and mapping to describe fully the “ecological and hydrological integrity of the Moraine” and identify the areas subject to ecological constraints to development. The ECO also encourages ministries to update existing technical guidelines or develop new ones, and to post those new or revised policies and guidelines on the Environmental Registry for public comment. Among the strong prohibitions and explicit provisions in the Plan, there are some weaker conditions open to interpretation, and compliance with these may be difficult to measure.
The ORMCA and the Plan are a promising beginning to the task of protecting the Oak Ridges Moraine. The ECO will monitor and report on their implementation in future reports.
| Recommendation 9:
The ECO recommends that the Ministries of Municipal Affairs and Housing, Natural Resources, and Environment and Energy begin planning and implementing the promised systems for monitoring and evaluating the Oak Ridges Moraine Conservation Plan. |
Click here for a list of all ECO reporting on the Oak Ridges Moraine Conservation Act.
| This is an article from the 2001/02 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2002. "Oak Ridges Moraine Conservation Act." Developing Sustainability, ECO Annual Report, 2001-02. Toronto, ON : Environmental Commissioner of Ontario. 72-79.
