TRANSPORTATION AND ENVIRONMENTAL SERVICES Rapid Transit Initiative

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1 REGION OF WATERLOO TRANSPORTATION AND ENVIRONMENTAL SERVICES Rapid Transit Initiative TO: Chair Jim Wideman and Members of the Planning and Works Committee DATE: FILE CODE: D10-20/RT SUBJECT: PROPOSED NEW TRANSIT ENVIRONMENTAL ASSESSMENT REGULATION RECOMMENDATION: THAT Regional Council endorse the proposed new regulation under the Environmental Assessment Act entitled Transit Projects and Greater Toronto Transportation Authority Undertakings, as described in Report No. E ; AND THAT, Regional Council direct staff to submit the comments to the Ministry of the Environment. SUMMARY: The Region of Waterloo is currently undertaking an Individual Environmental Assessment (IEA) for the development of a rapid transit system. On March 28, 2008 the Ministry of the Environment (MOE) posted a draft new Transit Environmental Assessment Regulation proposed to exempt public transit projects from certain requirements of the Environmental Assessment Act, and facilitate faster implementation of transit projects. A copy of the Environmental Registry posting and the proposed new regulation entitled Transit Projects and Greater Toronto Transportation Authority Undertakings is attached as Appendix A. The process established by the regulation is intended to allow a proponent to obtain approval for the project from the MOE in as little as 6 months. The regulation imposes time limitations on both proponents and the MOE for the completion of various steps within the process. Completion of the process in the accelerated timeframe is contingent on the MOE abiding by their self-imposed timelines. The process is initiated after the preferred transit project has been selected, and will require that proponents: File a Notice of Commencement; Assess site specific negative impacts of the project; Identify appropriate mitigation measures; Undertake consultation; File a Notice of Completion; File an Environmental Project Report (EPR), including a record of consultation, for public and agency review, and File a Statement of Completion. The regulation will impose the following timelines: consultation and completion of documentation and project report 4 months, final public and agency review and submission of objections one month, MOE decision-making (if necessary) 35 days. The proposed regulation provides for stakeholders and members of the public to submit objections to the project on matters of provincial significance. Matters of provincial significance as defined under the proposed regulation include the natural environment, cultural heritage value and aboriginal treaty rights Page 1 of 47

2 The proposed Transit Environmental Assessment Regulation has the potential to both streamline and accelerate the assessment and implementation of transit projects as compared to the Individual or Class EA process. Due in large part to the reduced scope of study and consultation required by the proposed new regulation, the potential also exists to elicit significant concern by members of the public and special interest groups. Staff has prepared a possible high level strategy for transition of the Region s Rapid Transit Individual EA into the new process that includes initiation of concurrent work on the preliminary design of the rapid transit system, additional consultation with stakeholders and impacted property owners, preparation of vehicle procurement specifications, preparation of bid contracts and tender documents and land acquisition. Estimated time savings in the order of 1-2 years may be realized by transitioning into the new process. The reduced scope required for formal consultation with interested parties can be mitigated by undertaking concurrent consultation, outside the framework of the approval process, as necessary. Once the regulation comes into force, staff will bring forth a recommendation to Council with a detailed strategy for transitioning to the new process and the proposed concurrent consultation strategy. In general, Region staff support the proposed regulation, and have prepared comments to this effect. Staff comments were circulated to the Rapid Transit Project Team, who in general concurred with Region staff s position on the proposed new regulation. A draft of the letter to the MOE from Region staff regarding comments on the proposed new regulation is attached as Appendix B. It is recommended that Regional Council endorse this report and direct staff to submit comments on the proposed regulation to the Ministry of the Environment. REPORT: Background The Region of Waterloo is currently undertaking an Individual Environmental Assessment (IEA) for the development of a rapid transit system in accordance with Terms of Reference approved by the Minister of the Environment in July In May 2007, Regional Council endorsed the recommendations of the Municipal Engineers Association (MEA) and its sub-committee, which included Region of Waterloo staff, to proceed with amending the Municipal Class Environmental Assessment document and include Part D - Transit Projects (P ), which came into force in October At the same time, staff advised that the IEA for the rapid transit system should continue in accordance with the IEA framework since the Terms of Reference were approved some time ago, the public has been aware of this planning approach involving extensive public consultation throughout the four phase planning process, and that future route extensions or updates of the IEA could be accomplished under the new Class EA process. On March 28, 2008 the Ministry of the Environment (MOE) posted a draft new Transit Environmental Assessment Regulation on the Environmental Registry for a 45 day comment period. Staff have reviewed the proposed new regulation and attended an information session to present the proposed new regulation hosted by the MOE on April 30, In general, Region staff support the regulation, and have prepared comments to this effect. Staff comments were circulated to the Rapid Transit Project Team, which includes representatives of the area municipalities, Regional Council, Region staff and the Ministry of Transportation. The Rapid Transit Project Team in general concurred with Region staff s position on the proposed new regulation. A copy of the Environmental Registry posting and the proposed new regulation entitled Transit Page 2 of 47

3 Projects and Greater Toronto Transportation Authority Undertakings is attached as Appendix A. A draft of letter to the MOE from Region staff regarding comments on the proposed new regulation is attached as Appendix B. Overview of the Proposed Transit Environmental Assessment Regulation The regulation has been proposed to facilitate the faster implementation of transit projects, and in particular rapid transit projects, including those identified in the MoveOntario 2020 plan announced in June 2007 to achieve the transportation, economic, environmental and social benefits of public transit. Funding for two-thirds of a rapid transit system in the Region of Waterloo is included in the MoveOntario 2020 plan. The proposed new regulation, which will exempt public transit projects from certain requirements of the Environmental Assessment Act, includes: Definitions, Exemptions, Transit Project Assessment Process, Schedule of Candidate Transit Projects, Schedule for Identification of Interested Persons. The process established by the regulation is intended to allow a proponent to obtain approval for the project from the MOE in as little as 6 months from the date of filing of a Notice of Commencement. Proponents enter into the new process after the preferred transit project has been selected. The regulation imposes time limitations on both proponents and the MOE for the completion of various steps within the process. Completion of the process in the accelerated timeframe is contingent on the MOE abiding by their self-imposed timelines. Once initiated, the process will require that proponents: File a Notice of Commencement; Assess site specific negative impacts of the project; Identify appropriate mitigation measures; Undertake consultation; File a Notice of Completion; File an Environmental Project Report (EPR), including a record of consultation, for public and agency review, and File a Statement of Completion. The regulation will impose the following timelines: consultation and completion of documentation and project report 4 months, final public and agency review and submission of objections one month, MOE decision-making (if necessary) 35 days. The consultation process will provide information about the basis for the project, assessment and evaluation of negative impacts on provincially significant matters and mitigation measures to interested parties, including, but not limited to every assessed owner of land within 30 metres of the project area and aboriginal communities. It is left up to the proponent to decide how they wish to undertake the consultation process. The Notice of Completion must be issued within four months of the Notice of Commencement. If the proponent fails to meet this timeframe, then the six month process must be re-started from the beginning. Proponents may elect to file a Notice of Issue during the four month consultation period and suspend the clock in order to address any matter that may result in a negative impact on a provincially significant importance. Matters of provincial significance as defined under the proposed Page 3 of 47

4 regulation include the natural environment and matters of cultural heritage value. Examples of provincially significant natural and cultural heritage environment features are included in Schedule 2 of the proposed regulation (refer to Appendix A). The list identifies such features as watercourses, fish habitat, rare or endangered species, environmentally sensitive areas, recreational areas, tourist facilities, social service facilities etc. In a similar fashion, the proposed regulation provides for stakeholders and members of the public to submit objections to the project to the Minister of the Environment on matters of provincial significance as listed above. The MOE will consider only those objections regarding provincially significant matters received in writing during the one month review period. If no objections are received, the proponent may proceed directly to the Notice of Completion. If objections are received the MOE has 35 days to render a decision on the project. The Minister may advise the proponent to proceed with the project, proceed subject to conditions or complete additional steps and refile the EPR. The MOE may issue a Part II Order if, after review of the revised EPR, it is determined that the revisions do not sufficiently address the issue(s). The proposed regulation also includes an addendum process whereby the proponent may make changes to a transit project after the completion of the process, and publish a Notice of EPR Addendum. The timelines for review of the revised EPR, filing of objections and decision-making by the MOE are identical to those described above. Proponents, such as the Region of Waterloo, who are currently undertaking an Individual or Class EA for a proposed transit project may transition into the new process by providing written notice to the MOE within two months of the new regulation coming into force. Implications for the Region s Rapid Transit Individual EA The proposed Transit Environmental Regulation has the potential to both streamline and accelerate the assessment and implementation of transit projects as compared to the Individual or Class EA process. Time and resource savings are primarily associated with: Elimination of the requirement to assess project alternatives; Permitting proponents to undertake consultation in the manner they see as most fit; Significant scoping down of the required contents of the EPR (the main purpose of the report is to identify negative impacts of the project on provincially significant matters and associated mitigation measures); Scoping down of objectionable issues to include matters of provincial significance only; Limitation on the timeframe allowed for the submission of objections to the project to one month; Commitment from the MOE to render a decision on the project within 35 days of the end of the public and agency review period. Due to the reduced scope of study and consultation required by the proposed new regulation, the potential also exists to elicit significant concern by members of the public and special interest groups who may perceive that the regulation will permit transit projects to be rammed through the system without adequate consultation and consideration of alternatives. This risk may be heightened in those municipalities where stakeholders and the public have become accustomed to comprehensive public consultation, such as is the case in the Region of Waterloo. The process does not preclude proponents from undertaking additional consultation outside of the process, and this concept is included in the strategy outlined below. In consideration of the above, the following is presented as a possible high level strategy for Page 4 of 47

5 transition of the Region s Rapid Transit Individual EA into the new process. Continue working within the framework of the individual EA until such time as the new regulation comes into force. Staff from the MOE have indicated that the new regulation should be in force by late June Within 2 months of the new regulation coming into force, notify the MOE of the Region s intent to transition into the new process. Continue working within the Individual EA through the summer and fall 2008 to prepare the preferred rapid transit system solution (including full route, technology and station locations). Carry out public consultation as intended for the Individual EA in June 2008 to present the short-list of route alternatives and in Fall 2008 to present the preferred solution; i.e complete Phase 2 of the Individual EA. File a Notice of Commencement to enter into the new process once Phase 2 of the Individual EA is complete and a preferred solution has been endorsed by Regional Council. Additional public consultation could be undertaken prior to filing the Notice of Commencement if significant issues are envisioned with stakeholders and/or property owners along a significant portion of the route. Advance the portion of the work of the preliminary design of the preferred system (i.e Phase 3 of the Individual EA) to assess negative impacts of the route on provincially significant matters and consider associated mitigation measures. This work will be completed together with the consultation with interested parties during the 4 month period stipulated in the proposed regulation. Prepare an Environmental Project Report, and file a Notice of Completion to submit the report for the one month agency and public review period under the new process. The EPR will be greatly reduced in scope as compared to an Environmental Study Report that would be prepared under the Individual EA. A decision from the MOE would be rendered within 35 days after the expiration of the one month review period above. In addition to the above, the following list of activities could be initiated concurrently with the work detailed above, yet remain outside the confines of an approval process: Preliminary design of the rapid transit system; Additional consultation with stakeholders and impacted property owners; Preparation of vehicle procurement specifications; Preparation of bid contracts and tender documents; Land acquisition. Opportunities for Project Schedule Acceleration Significant public and stakeholder consultation has taken place within the context of the Individual EA since the start of the Rapid Transit in As described elsewhere in this report, continued consultation, both within and outside of the proposed new regulation will remain a focus of the Rapid Transit Initiative. Assuming that the strategy outlined above is adopted, significant opportunities for acceleration of the Rapid Transit Initiative schedule exist. An estimate of potential time savings are presented the table below as compared to the baseline case whereby the project would remain as an Individual EA Page 5 of 47

6 Task Recommendation of Preferred System Alternative Preliminary Design and Submission of Report to MOE Public and agency review and submission of objections Baseline (Individual EA) Proposed Transit Environmental Regulation Estimated Time Savings Fall 2008 N/A N/A Environmental Study Report Fall 2009 Environmental Project Report Spring months 4-6 months 1 month Up to 5 months Decision making by MOE Up to one year 35 days Up to 11 months TOTAL ESTIMATED TIME SAVINGS Up to 22 months Although the new process does present opportunities for schedule acceleration and associated reduction of resource requirements, there remain a number of risks associated with the new process. In general, these risks include: The MOE can still issue a Part II Order under the new process (the objection process is modeled after the process included in the existing Class EA framework); If the Region entered into the new process, it would be one of the first jurisdictions in the province to do so; Unknowns regarding how the MOE might apply the regulation and exercise their decisionmaking authority; Unknowns regarding whether the MOE will comply with their 35 day decision-making period; Public perception that the Region is forgoing the standard public consultation process. The risks listed above can be mitigated via open and frequent dialogue with the MOE and continued public and stakeholder consultation, both within and outside the framework of the proposed regulation. Once the regulation comes into force, staff will bring forth a recommendation to Council with a detailed strategy for transitioning to the new process and a proposed concurrent consultation strategy. This concurrent consultation strategy will be dependant on the ultimate selection of the preferred rapid transit route, timing of the transition into the new process, and will include input from the public in the spring 2008 public consultation centres and summer 2008 business visits. Comments on the Proposed New Transit Environmental Assessment Regulation In general, staff is supportive of the new regulation in view of the opportunities for schedule acceleration presented above. Staff s proposed comments on the new regulation to the MOE include suggestions for additional time constraints within the Notice of Issue provision, and concurrence with the focus of the regulation being to limit objections to those matters which are issues of provincial significance. Staff comments were circulated to the Rapid Transit Project Team, which includes representatives of the area municipalities, Regional Council, Region staff and the Ministry of Transportation. The Rapid Transit Project Team in general concurred with Region staff s position on the proposed new regulation. A draft of letter to the MOE from Region staff regarding comments on the proposed new regulation is attached as Appendix B Page 6 of 47

7 Conclusions The proposed transit environmental regulation is intended to streamline the approval process for public transit projects to facilitate faster implementation of transit projects, including those in the province s MoveOntario2020 plan. The proposed regulation appears to provide significant opportunities for schedule acceleration, in the order of 1-2 years, as compared to the framework of an Individual EA. Risks associated with a reduced scope for required consultation with interested parties can be mitigated by undertaking concurrent consultation, outside the framework of the approval process, as necessary. Staff is therefore in support of the proposed regulation, and recommends that Regional Council endorse staff s position and direct staff to submit comments on the proposed regulation to the Ministry of the Environment. CORPORATE STRATEGIC PLAN The report supports several objectives of Council s Strategic Focus. These include: Focus Area 1: Environmental Sustainability: Protect and Enhance the Environment. Focus Area 2: Growth Management: Manage and shape growth to ensure a livable, healthy, thriving and sustainable Waterloo Region. Focus Area 5: Infrastructure: Provide high quality infrastructure and asset management to meet current needs and future growth. FINANCIAL IMPLICATIONS: Transitioning into the new Transit Environmental Assessment Regulation process will accelerate the need to establish longer term financing for the project, including funding commitments by both the Provincial and Federal governments. OTHER DEPARTMENT CONSULTATIONS/CONCURRENCE: Staff from the Transportation Planning and Legal Divisions, and the Rapid Transit Individual Environmental Assessment Project Team have been consulted in the writing of this report, and their comments have been included. ATTACHMENTS: Appendix A: Environmental Registry posting and proposed new regulation entitled Transit Projects and Greater Toronto Transportation Authority Undertakings Appendix B: Draft letter to the MOE from Region staff regarding comments on the proposed Transit Environmental Assessment Regulation PREPARED BY: Donna Serrati, Project Director, Rapid Transit Initiative APPROVED BY: Thomas Schmidt, Commissioner of Transportation and Environmental Services Page 7 of 47

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42 APPENDIX B Page 42 of 47

43 April 24, 2008 Mr. Blair Rohaly Project Manager Strategic Policy Branch Ministry of the Environment, Ontario 135 St. Clair Avenue West, 11th Floor Toronto, ON M4V 1P5 Re: Proposed Provincial Regulation (EBR registry # ) for Public Transit Projects - Comments Dear Mr. Rohaly, This letter is in response to your request for comments ( of April 11) on the proposed regulation EBR registry # First, we provide a brief overview of our understanding of the proposed regulation followed by our comments on specific aspects of the regulation in view of our continuing studies of the Waterloo Region Rapid Transit Initiative and the Individual Environmental Assessment which is underway. Our Understanding of Regulation EBR # The Ministry of the Environment (MOE), Ontario is proposing to develop a regulation under the Environmental Assessment Act (EAA) to exempt public transit projects from the EAA provided that they comply with specific conditions. These conditions include documenting what has been done before starting with the new process - i.e. public consultation, assessment of impacts, developing the rapid transit plan - and prescribing steps needed to complete the new process. The new process for transit projects that are initiated by provincial agencies (e.g. GO Transit) and municipalities will apply once the proponent has determined the preferred transit project (i.e. the preferred route and technology) and will not require the proponent to justify or assess different alternatives to the project. The new process will allow proponents to assess specific elements of their chosen transit project and mitigation required to minimize the negative impacts. All transit projects will be exempt from the full requirements of the EAA. MOE proposes to use project schedules similar to those found in the recent Municipal Class EA amendment that includes Part D Transit Projects. These schedules will determine the level of assessment that will be required for various transit projects Page 43 of 47

44 Overview of Regulation EBR # When does the new process start? The municipality must provide a notice of project commencement in the local newspapers and distribute it to MOE, assessed land owners within 30m of the project site as well as other interested parties. The transit project assessment process begins (four months/115 days) on the date the notice is made public. Timeline and extent of the new process. The MOE proposes a six month timeline from start to finish, with the first 4 months (115 days) allocated to public consultation and preparing documentation of the impacts and mitigation of the transit project. Following that, one month (30 days) is set aside for public review of the documentation and 35 days for the MOE to reach a decision (if required) on the project. At the beginning of the four month period, the proponent will make available to the public planning documents and consultation materials leading to the selection of the preferred method of carrying out the transit project as well as analysis of environmental conditions at the site of the project and analysis of the negative impacts and potential mitigation measures. Consultation will focus on site-specific impacts and possible mitigation measures. This allows proponents to incorporate input from stakeholders into the evaluation of potential environmental effects of different designs of the transit project prior to construction. Environmental effects considered are only those of provincial significance (natural resources or cultural-heritage). What are some examples of possible environmental effects? Included are natural areas of provincial significance such as permanent watercourses and navigable waterways (e.g. streams, creeks, rivers, municipal drains), groundwater (wells and recharge areas), rare and endangered species of wildlife/fish/flora, fisheries and fish habitat, environmentally sensitive areas (ESAs), hazard lands (floodplains, unstable soils), woodlots and street trees on municipal lands. Examples of significant natural heritage features include provincially, regionally and locally significant natural heritage features (woodlots and wetlands, national wildlife areas). Culturally significant properties would include homes for the aged, group homes and hospitals. Designated tourism facilities to consider would be of national and provincial significance. Recreational areas include federal and provincial parks and reserves, conservation areas, heritage lands, municipal parks, open space and trail systems. Historical or archeological resources include historic buildings and structures (e.g. bridges), scenic areas, archeological sites, cultural heritage landscapes. Who should be consulted? This is left up to the municipality as to their current practices and Page 44 of 47

45 method of contact. The proposed regulation generally suggests contacting the public at large as well as stakeholders in the community, affected property owners and provincial and federal agencies. When are objections considered? Only objections that raise a matter of provincial significance will be considered under the new regulation. Issues of provincial significance include provincial policies and legislation such as protecting species at risk, greenbelt areas, provincially significant wetlands, areas of natural scientific interest, designated built and cultural heritage areas. Objections must be made within a thirty (30) day time period once the proponent has published a notice informing the public and other interested persons that it has completed the new process and makes an environmental project report available for review and comment. Objections received after the thirty day period will not be considered by the MOE. How are objections resolved? A number of possible outcomes may result with objections. If the MOE opines that an objection raised within the 30-day period raises a matter of provincial significance, the Ministry can require the proponent to undertake further study and assessment by restarting the six month process or by entering into a Class or Individual EA planning process. If the MOE opines that the objection does not raise a matter of provincial significance or that the proponent has addressed the matter, the Ministry can allow the proponent to proceed with the project. If the MOE does not make a decision within the 35-day period, the proponent will be able to proceed with project implementation. Timeout: If issues of provincial significance arise at any time during the consultation, and the proponent determines that resolving the issues will compromise the six month timeline, the proponent has the option of taking a timeout before continuing the process. The length of the timeout is not specified in the regulation. Region of Waterloo Rapid Transit Initiative Individual Environmental Assessment The Region of Waterloo has been engaged in preparing an Individual Environmental Assessment study for a rapid transit line serving the Central Transit Corridor in the Region over the past several years. The three phase study process approved by the Minister of the Environment, Ontario in July, 2005 is now in the latter stages of Phase 2 Review and Evaluation of Alternative Routes and Technologies for a 35 km rapid transit line serving Waterloo, Kitchener and Cambridge. Once a preferred route and technology are brought forward for Regional Council s consideration later in 2008, we will proceed with a preliminary design of the preferred route which entails identification of possible negative impacts and mitigation (Phase 3). We will also prepare a project description as the first step of the Canadian Environmental Assessment Act Page 45 of 47

46 (CEAA) process. We anticipate having a short list of possible routes/ technologies available by mid 2008 and their detailed assessment will occur over the following months leading to a preferred route and technology recommendation by late In this period, the Region will host several public consultation sessions within the three area municipalities, as well has continue discussions with affected public agencies, stakeholders, and private land owners. Comments on the Proposed Regulation The Region of Waterloo has reviewed the proposed regulation and concurs with the principles and intent to streamline approval of public transit projects. We do, however, have some comments on specific aspects that the Ministry might consider. 1) Timeout Provision: The timeout provision could be used as a possible delay mechanism for parties opposing the project who might provide an objection that cannot be easily resolved in a short period of several months. In the spirit of streamlining the approval of transit projects, we suggest a set time be established for the timeout (up to two months would be reasonable). Two months should be sufficient to reasonably complete the investigation and attempt to resolve the issue especially since the impact and possible mitigation were most likely identified in the project planning stage. 2) Limiting Scope of Objections to Provincially Significant Matters: Often, local property owners may object to a transit project as a result of concerns regarding the projects impact on property values and the potential for business disruption. We agree that the new regulation should exclude the local impacts if they are without provincial significance and allow the municipality to resolve such issues outside of the EAA, as these matters fall more squarely within municipal decision-making. 3) Projects Listed in Schedule 1. The list of projects for municipalities, GTAA, etc included in Section 1 should be broadened to include relevant items listed in Section 2 for Transit Projects by GO Transit, GTAA, etc, for example major Transfer Stations and Intermodal Stations Page 46 of 47

47 Please do not hesitate to contact the undersigned should you wish to discuss any of the above. Sincerely, Donna Serrati, P.Eng. Director, Rapid Transit Initiative Region of Waterloo cc Project Team Members, Rapid Transit Initiative EA Page 47 of 47