Protecting wetlands, or Draining for development?
|In 2007, the ECO undertook an examination of the challenge of creating sustainable communities in southern Ontario. The following articles are included:|
Wetlands are critically important ecosystems, providing: water storage, storm protection and flood mitigation, shoreline stabilization and erosion control, groundwater recharge, and water purification through retention of nutrients, sediments, and pollutants. Wetland conservation can help maintain hydrologic flow patterns and mitigate some of the environmental impacts of climate change. In addition, wetlands provide critical habitat and breeding grounds for many species plants and animals, including a number of species at risk.
For over twenty years, Ontario provincial policy has stated that wetlands should be protected. However, wetlands continue to lose out to other priorities, such as residential development, road building, and new pits and quarries, depriving future generations of the benefits that wetlands could provide.
Loss of wetland area and quality in Ontario
Wetlands make up about one-third of the province’s land base, and are most prevalent in the far North. Wetland losses have been most severe in Southern Ontario: by 1982, about 70 per cent of the wetlands present prior to European settlement had been destroyed, and some areas of Southern Ontario have lost almost all their wetlands. Within the Great Lakes Basin, an estimated 65 per cent of coastal wetlands have been converted to other land uses.
The major threats to wetlands include drainage for agriculture, development and road construction. Other stressors include large water-takings, contaminated runoff and invasive species. Dredging, urban and cottage development, and the manipulation of lake levels threaten coastal wetlands.
Canada is a signatory to the 1971 Ramsar Convention on Wetlands, and eight wetlands in Ontario have been listed as internationally significant Ramsar sites. Ontario also participates with other governments and private partners in various wetlands plans and programs, such as the Great Lakes Wetlands Conservation Action Plan. These joint efforts have produced many worthwhile projects to restore and rehabilitate wetlands. None of the agreements or plans, however, contains regulatory protections for wetlands.
There is no provincial or federal legislation that specifically requires protection of wetlands in Ontario. Indirect protection is provided to certain wetlands through some Ontario legislation such as the Planning Act and Conservation Authorities Act, as described below. Other legislation such as the Tile Drainage Act and Drainage Act, actually work against wetland protection by permitting drainage if requested by landowners.
Protections for wetlands in Ontario are found primarily in policy documents: the 2005 Provincial Policy Statement (PPS) issued under the Planning Act, and other provincial land use plans, such as the Oak Ridges Moraine Conservation Plan (ORMCP) and the Greenbelt (GB) Plan. Ontario’s policy approach to protecting wetlands through the land-use planning system has several weaknesses:
- exemptions allow for infrastructure works, agriculture and some resource extraction activities;
- protection depends on evaluations and official designation in land use plans;
- responsibility and jurisdiction is fragmented; and
- decision-makers are permitted too much discretion in applying the policies.
The 2005 PPS prohibits development and site alteration in “significant wetlands” (also referred to as provincially significant wetlands or PSWs) in much of Southern and central Ontario. It allows development on lands adjacent to PSWs, and in PSWs in Northern Ontario, but only if it has been demonstrated that there will be no negative impacts on the wetlands or their ecological functions. The 2005 PPS, unlike earlier provincial policy on wetlands, does not address locally significant wetlands or wetlands that have not yet been evaluated for their significance.
The 2005 PPS introduced two major improvements for wetlands protection over the 1997 version. First, the protection line for significant wetlands was moved north to include Site Region 5E. Second, significant coastal wetlands were given the same protections as significant wetlands.
Exemptions allow destruction of wetlands
Over time the province has retreated from 2005 PPS prohibitions on development by changing the definition of “development”. The ECO’s review of the 2005 PPS noted that infrastructure and drainage works are permitted within PSWs. The infrastructure exemption includes sewage and water systems, waste management systems, electric power generation and transmission, pipelines, transit and roads, and associated facilities. The 2005 PPS gives clear priority to transportation and infrastructure corridors over PSWs.
Roads have well-documented impacts reaching far beyond their physical footprints. For example, they disrupt hydrology, cause significant direct wildlife mortality, and bar access to critical breeding and hibernation sites. The MTO’s Environmental Standards and Practices User Guide explains how the ministry and its contractors should address wetlands in highway design and construction. The guide acknowledges major impacts to wetlands, including:
- encroaching upon a wetland;
- changing the surface water balance of wetlands;
- changing the groundwater balance of wetlands; and
- discharging impacted water (sediment and other contaminants, such as road salt) into wetlands.
It also sets out “possible management options”, such as avoiding wetlands, reducing the footprint of the highway, building overpasses, or restoring or replacing wetlands. The Guide then describes how difficult, expensive or unsuccessful those options are.
The ECO is aware of many examples of provincial highways and municipal roads built or expanded into PSWs, which were approved under various environmental assessment processes. A small sample includes:
- a road extension through the Bear Creek Swamp in Barrie;
- the expansion of the St. John’s Sideroad through the McKenzie Marsh in Aurora;
- the extension of Bayview Avenue through the Wilcox-St. George PSW in Richmond Hill; and
- the Redhill Creek Expressway through Van Wagner’s Marsh in Hamilton.
As noted in Road expansion: Impact on wetlands, new provincial highways and highway expansions are still being routed through PSWs and having a major impact on Southern Ontario’s natural areas.
Another major contributor to wetland destruction is that most protections (such as the 2005 PPS, Conservation Land Tax Incentive Program, and the siting of pits and quarries) apply only to PSWs. Some municipalities and conservation authorities go further and include protections for locally significant wetlands, but decision-makers are unlikely – and to some extent unable – to use tools that they have available to protect wetlands unless the wetland has been identified as significant by MNR.
Significant wetlands are defined in the 2005 PPS as areas “identified as provincially significant” by the MNR “using evaluation procedures established by the Province, as amended from time to time.” MNR developed the Ontario Wetlands Evaluation System (OWES) to evaluate the significance of wetlands. MNR is responsible for the identification, whether the evaluation is carried out by ministry staff or others using MNR’s manuals.
The OWES manuals set out an evaluation process similar to that used in many other jurisdictions. Over 50 variables are analyzed and scored; these variables are divided into four categories: biological, social, hydrologic and special features. Boundaries are delineated through a combination of aerial photography analysis and field checking. The system is scientifically valid, but is labour intensive and quite expensive. Landowners and industry associations have raised issues about OWES, particularly the process used to identify adjacent wetlands as part of a complex. Other jurisdictions are moving toward “advance identification” processes, using computerized mapping techniques as a cost-effective way to identify wetlands in advance of development applications and evaluation. For discussion of the potential of enhanced mapping techniques developed by MNR and the not-for-profit conservation organization, Ducks Unlimited in Ontario, see 2007 Review of Wetland Policies .
Need for Review of Wetland Policies
A 2006 EBR application asked for a review of the 2005 PPS and MNR’s process for evaluating wetlands. The applicants suggested that the PPS wetlands policies are “meaningless” because development is being approved in wetlands that have not been evaluated. For example, 99 per cent of wetlands in Haliburton County have not been evaluated or identified by MNR. MAH and MNR decided not to carry out the review. The ECO agrees with the applicants’ concerns, and calls for a public review of the PPS, the One Window Provincial Planning System and MNR’s wetland evaluation program. See 2007 Review of Wetland Policies for more detail.
MNR staff members acknowledge that fewer than one per cent of the wetlands in central Ontario have been evaluated, and that the vast majority of wetlands in the province – particularly, north and east of Peterborough – are unevaluated. Even in southern regions, where MNR has conducted about 2,000 wetland evaluations (primarily in the 1980s), there are many wetlands that should be evaluated or re-evaluated for their significance. In recent years, MNR has not had sufficient resources to complete wetland evaluations.
There have been several notable cases where citizens and groups have had to pay out of their own funds for a wetland evaluation, then asked MNR to identify a wetland as significant, in order to protect it from proposed development. In one case, a resident was successful in his appeal to the OMB to deny a proposed golf course in Marshfield Woods, a significant wetland in the Town of Essex, and have the lands rezoned to a protective wetland designation. In another recent example, local residents concerned about a proposed quarry in the Mount Nemo area of the Niagara Escarpment Plan commissioned a wetland evaluation, which resulted in MNR designating a series of 15 connected wetlands as a PSW complex.
No Mandatory Buffers
The 2005 PPS prohibits development in areas adjacent to PSWs, unless it has been demonstrated that there will be no negative impacts on the wetlands or their ecological functions; however, the 2005 PPS no longer quantifies the term “adjacent.” In a controversial 2006 decision on a quarry expansion within the Niagara Escarpment Plan Area, the provincial Cabinet allowed quarrying within 15 and 25 metres of provincially significant wetlands.
‘One Window’ planning system shuts out the MNR
Ontario’s land use planning system was reformed in the mid-1990s to delegate most planning decisions to municipalities, within a framework of provincial legislation and policy. At the same time, the role of most provincial ministries, other than the Ministry of Municipal Affairs and Housing (MMAH), was greatly diminished under the “One Window” protocol.
MMAH is the “One Window” for planning matters, and is the only provincial ministry entitled to:
- receive planning notices;
- decide whether other ministries will provide comments;
- determine a “provincial interest” in a planning matter,
- launch an appeal; or
- order a municipality to amend an official plan to conform to the PPS.
MNR’s role is limited to identifying significant wetlands. Under previous provincial wetland policies, MNR reviewed all proposed development applications affecting wetlands; today, MNR comments on very few planning proposals, and only if invited to by MMAH.
The ECO reviewed a sample of OMB decisions involving natural heritage policies in 2001 and again in 2007, finding that the OMB was more likely to protect wetlands when MNR staff appeared to provide evidence. MNR staff members were rarely involved, however, and their lack of direct participation contributed to rulings against wetlands protection. The ECO concludes that the current PPS implementation process – in particular, the One Window protocol – has not been effective in protecting wetlands under the planning system. The ECO urges MAH to review the wetlands policies of the planning system and 2005 PPS, and to review the One Window protocol, with particular regard to restoring MNR’s involvement in municipal planning.
Death by a thousand cuts
Even wetlands already identified by MNR are threatened, because decision-makers have discretion to consider or protect even designated PSWs at several stages of the planning process. First, some municipalities have been reluctant to designate PSWs in their official plans or zoning by-laws, leaving the lands zoned for development. The City of Ottawa recently halted its process to designate 20 newly-identified PSWs in its official plan, and is planning to drain some of the areas because of landowner opposition to designation. Some landowners in various areas across Southern Ontario have gone as far as deliberately destroying the wetland features of their properties to avoid designation.
Application of the 2005 PPS protections for wetlands may be strengthened in the future by recent reforms of the planning system, (see Providing municipalities with new tools for sustainability and Review of Posted Decision Bill 51. These reforms strengthen requirements to update official plans and accompanying zoning bylaws to be consistent with the PPS, and require decisions to be consistent with the PPS in effect at the time of the decision, rather than the date when the application commenced. New limits on appeal rights, however, may make it more difficult for communities and public interest groups to appeal decisions that affect wetlands.
Regional land use plans provide additional protections
In addition to the 2005 PPS, which is applied across Ontario, there are a number of area-specific land use plans such as the Niagara Escarpment Plan (NEP), ORMCP and the GB Plan, which contain protections for wetlands. The strongest protection for wetlands in Ontario is provided by the 2002 ORCMP which sets out requirements for all wetlands, not just PSWs. The GB Plan also includes special policies for all wetlands, but then allows aggregate operations in most wetlands, prohibiting them only in PSWs. This still provides a more stringent prohibition on pits and quarries within PSWs in the GB Plan area than anywhere else in Southern Ontario.
Conservation Authorities have new powers under the Conservation Authorities Act to regulate development and interference with wetlands. In 2004, MNR approved a regulation that requires CAs to prohibit development in wetlands, and prohibit the changing or interfering in any way with a wetland, although a CA can provide written permission to do so. The Act provides much broader powers than the 2005 PPS, even covering drainage activities and infrastructure development, but so far it has been implemented unevenly by individual CAs.
It was expected that CAs would regulate and protect all wetlands, not just those that are identified as provincially significant. MNR says that 18 CAs regulate lands within 120 metres of all wetlands and the remaining 18 CAs regulate lands within 120 metres of PSWs and within 30 m of all other evaluated wetlands. The regulations for each CA, passed in 2006, cover different types and sizes of wetlands and adjacent areas. The Toronto and Region Conservation Authority has included wetlands as small as 0.5 ha and regulated development within 120 metres around all PSWs and all wetlands in the Oak Ridges Moraine. It appears that other CAs are not applying the regulation to many wetlands, either because of a lack of resources or a lack of political will. For example, the Eastern Ontario CAs have “made a policy decision that only wetlands designated as provincially significant and appearing on approved Official Plan schedules are subject to the regulation.” One CA in the Ottawa area is presently applying the wetland regulation within only one of the fifteen municipalities in its jurisdiction.
Poor information about wetlands
Ontario has poor information on wetlands and their status. The most recent comprehensive account of wetland loss across Southern Ontario is over 20 years old, although there are several recent studies of wetland losses in particular regions.
The ECO urged provincial ministries in 2000 to improve their mapping and analysis of the status of natural heritage features, such as wetlands. MNR developed the Southern Ontario Land Resources Information System (SOLRIS), updating existing geospatial base data with satellite and aerial photography to produce an inventory of natural, rural and urban areas. Unfortunately, implementation of this promising project has been slow and impeded by insufficient funding. As of April 2007, MNR has only released SOLRIS mapping for the GGH, and MNR has not yet conducted any comprehensive analysis of wetlands using the updated data. Further study of trends in wetland loss is necessary to understand the key threats and most effective policies to mitigate those threats.
Many of the government’s recent regulatory and policy changes could improve the protection of wetlands but, combined with the existing weaknesses described above, these new efforts may not be sufficient. MNR and MMAH must monitor and study wetland loss and the impacts of the 2005 PPS policies and other plans in order to assess their effectiveness before the next scheduled PPS review and the next 10-year review of the regional land use plans.
MNR first informed the ECO in 2001 that it was preparing a strategic plan for wetlands. A draft strategic plan has been prepared, but it has not been approved or released. At the same time, however, MNR is revising its OWES manuals in response to concerns from landowners and the aggregate industry. The little information MNR has provided about the OWES review suggest that, in future, the number of wetlands identified as provincially significant may be reduced because the rules allowing the grouping or “complexing” of a number of smaller interacting wetlands may be changed. MNR’s review is not public.
The ECO urges MNR to release its draft Wetlands Strategy for public comment, and suggests that a wetland strategy should include better carrots, as well as sticks. MNR’s existing stewardship and financial incentive programs do not seem to be sufficient to counteract the many strong pressures to develop wetlands. Other jurisdictions, such as the U.S., have adopted more aggressive wetland conservation targets and budgets, and offer greater incentives to landowners to promote conservation. MNR should consider improving existing conservation incentive programs and should fund additional land acquisition for threatened wetlands.
Summary and ECO comment
The ECO urges the province to review and improve its regulatory framework for protecting wetlands; the province should also improve implementation of that strengthened framework by clarifying the roles and responsibilities of provincial ministries. In the meantime, the province needs to ensure that all steps necessary to protect wetlands under the current system are implemented, including the following:
- Speed up wetlands evaluations in Site Region 5E and re-evaluations in 6E and 7E, as well as evaluations of significant coastal wetlands. To facilitate evaluations, alternate methods (such as enhanced GIS mapping and analysis techniques) should be approved.
- Improve the guidance and technical assistance provided by MNR to municipalities by updating the 1999 Natural Heritage Reference Manual and finalizing guidance regarding wetlands under the Greenbelt Plan.
- Ensure that identified wetlands are incorporated into municipal planning documents and maps, as well as decisions by municipalities, ministries and the OMB.
The ECO recommends that MNR significantly speed up the process of wetland identification and evaluation and ensure that Provincially Significant Wetlands are incorporated into municipal official plans.
The ECO recommends that MMAH amend the Provincial Policy Statement to prohibit new infrastructure such as highways in Provincially Significant Wetlands unless there are no reasonable alternatives and it has been demonstrated that there will be no negative impacts on their ecological functions.
|This is an article from the 2006/07 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2007. "Irreconcilable Priorities: The Challenge of Creating Sustainable Communities in Southern Ontario." Reconciling our Priorities, ECO Annual Report, 2006-07. Toronto, ON : Environmental Commissioner of Ontario. 35-43.