REVIEW OF THE DETROIT RIVER INTERNATIONAL CROSSING PROJECT ENVIRONMENTAL ASSESSMENT

Transcription

1 REVIEW OF THE DETROIT RIVER INTERNATIONAL CROSSING PROJECT ENVIRONMENTAL ASSESSMENT Review prepared pursuant to subsection 7(1) of the Environmental Assessment Act, R.S.O Province of Ontario by the Ontario Ministry of the Environment, Environmental Assessment and Approvals Branch

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3 NEED MORE INFORMATION? Public Record Locations The public record for this environmental assessment can be reviewed during normal business hours at the following ministry office: Ministry of the Environment Environmental Assessment and Approvals Branch 2 St. Clair Avenue West, Floor 12A Toronto, Ontario Voice: (416) / Fax: (416) The Review and Notice of Completion are also available at the following locations: Ministry of the Environment Environmental Assessment and Approvals Branch, 2 St. Clair Avenue West, Floor 12A, Toronto, or Southwest Regional Office, 733 Exeter Road, London, or Windsor Area Office, 4510 Rhodes Drive, Unit 620, Windsor, or Municipal Offices City of Windsor, 350 City Hall Square West, Windsor, Town of LaSalle, 5950 Maiden Road, LaSalle, Town of Tecumseh, 917 Lesperance Road, Tecumseh, County of Essex, 360 Fairview Avenue West, Essex, Proponent/Consultant Offices Ministry of Transportation, Windsor Border Initiatives Implementation Group, 949 McDougall Avenue, Suite 200, Windsor, URS Canada Inc., 75 Commerce Valley Drive East, Markham, Libraries LaSalle Public Library, 5940 Maiden road, LaSalle, Tecumseh Public Library, St. Gregory s Road, Tecumseh, Windsor Public Library, Central Branch, 850 Ouellette Avenue, Windsor, Windsor Public Library, Sandwich Branch, 3312 Sandwich Street, Windsor, Windsor Public Library, Nikola Budimir Branch, 1310 Grand Marais West Road, Windsor, This Review is subject to the provisions of Ontario Regulation 616/98 which sets out a deadline for the completion of this document. The deadline for the completion of the Review was April 3, This paragraph and the giving of the Notice of Completion are the notices required by subsection 7(3) of the Environmental Assessment Act. The Review documents the ministry s evaluation of the EA and takes the comments of the government agencies, the public and Aboriginal communities into consideration.

4 Table of Contents Executive Summary Environmental Assessment Process Terms of Reference Environmental Assessment Ministry Review The Proposed Undertaking Results of the Ministry Review Conformance with ToR and EAA Ministry Analysis Consultation Conclusion EA Process EA Process Comments Conclusion Proposed Undertaking Comments Related to the Proposed Undertaking Conclusion Summary of the Ministry Review What Happens Now? Additional Approvals Required Modifying or Amending the Proposed Undertaking List of Appendices Appendix A Appendix B Appendix C Appendix D Environmental Assessment Act Requirements Summary of Comments and Responses Submissions Received During the Initial Comment Period Supplemental Information

5 Executive Summary WHO WHAT Ministry of Transportation Ministry of the Environment s Review of an Environmental Assessment (EA) for the proposed undertaking defined as the Windsor-Essex Parkway portion of the Detroit River International Crossing (DRIC) Project. The Windsor-Essex Parkway portion of the DRIC Project includes the proposed highway connection between Highway 401 and the proposed bridge between the Cities of Windsor and Detroit, as well as any ancillary aspects of the Windsor-Essex Parkway, including features such as service roads, interchanges, and commuter parking lots. WHEN EA Submitted: December 31, 2008 EA Comment Period: January 9, 2009 February 27, 2009 WHERE WHY CONCLUSIONS Ministry Review comment period: April 24, 2009 May 28, 2009 The proposed Windsor-Essex Parkway would be located between the current terminus of Highway 401 in the Town of Tecumseh and the customs plaza located in the Brighton Beach Industrial Park in Windsor. Part of the Windsor-Essex Parkway would also be located in the Town of LaSalle. The purpose of the proposed undertaking is to provide for the safe, efficient and secure movement of people and goods across the Canadian-United States border in the Detroit River area to support the economies of Ontario, Michigan, Canada and the United States. The Ministry Review concludes that the EA was prepared in accordance with the approved Terms of Reference and the Environmental Assessment Act. Sufficient opportunities were provided to allow interested persons to be involved in the planning process. There are still outstanding issues that need to be addressed before a decision can be made about the proposed undertaking. During the period between the publication of this Review and before the Minister makes a decision about the proposed undertaking, further discussion between the MTO, the MOE and applicable reviewers will be necessary to respond to the remaining issues and provide the requisite information the Minister needs to make a decision about the proposed undertaking. April

6 1. Environmental Assessment Process Environmental Assessment (EA) is a proponent driven planning process designed to incorporate the consideration of the environment into decision-making by assessing the effects of an undertaking on the environment. In Ontario, the Environmental Assessment Act (EAA) sets out the general contents for the preparation of an EA, as well as the Ministry of the Environment s (MOE) evaluation process. For those proponents and undertakings subject the EAA, approval under the EAA is required before the undertaking can proceed. Proponents address a wide range of potential effects on the natural, social, cultural and economic environments to ensure the protection, conservation and wise management of the environment. An EA determines, on the basis of the environmental effects, if an undertaking should proceed, and if so, how environmental effects can be managed. EAs may identify a problem or opportunity, consider alternative ways of addressing the problem or opportunity, evaluate the environmental effects of the alternatives and select a preferred undertaking from the alternatives. The proponent must consider actions to avoid, reduce and mitigate EA Process ToR Approval EA Preparation EA Submission EA Comment Period Ministry Review Review Comment Period Minister s Decision potential environmental effects. In preparing the EA, the proponent completes various studies and consults with interested stakeholders including government agencies, the public and affected Aboriginal communities to evaluate the alternatives and determine the preferred undertaking. If the undertaking is approved, the proponent is required to monitor to demonstrate compliance with standards, regulations and the EAA approval. 1.1 Terms of Reference Preparing an EA is a two-step application to the Minister of the Environment (Minister). The first step requires the proponent to prepare and submit a Terms of Reference (ToR) to the MOE for review and approval. The ToR is the work plan or framework for how the EA will be prepared. On September 17, 2004, the Minister approved the ToR for the Detroit River International Crossing (DRIC) Project. The approved ToR sets out how the Ministry of Transportation (MTO) would assess alternatives, assess environmental effects and consult with the public during the preparation of the EA. The approved ToR established the rationale for identifying a long-term strategy to address the safe and efficient movement of people and goods between Southwestern Ontario and Southeastern Michigan. The approved ToR also outlined a consultation plan for the EA process. April

7 1.2 Environmental Assessment Once the ToR is approved by the Minister, the proponent can proceed to the second step of the EA process and carry out the EA. The EA must be prepared in accordance with the approved ToR and the requirements of the EAA. Once the proponent has carried out the EA, including consultation, the EA is submitted to the MOE for review and approval. On December 31, 2008, the MTO submitted an EA to the MOE for approval of the proposed Windsor-Essex Parkway and ancillary aspects (the proposed undertaking). The EA was made available for inspection by interested persons for a seven-week period between January 9, 2009 and February 27, Ministry Review The EA was circulated for review to a Government Review Team (GRT). The GRT, including federal, provincial and local agencies, reviewed the EA to ensure that the information and conclusions of the EA were valid, based on their agencies mandates. The public, Aboriginal communities and other interested persons also had an opportunity to review the EA and submit their comments to the MOE. All comments received by the MOE are considered by the Minister before a decision is made about the proposed undertaking. The EAA requires the MOE to prepare a review of the EA, known simply as the Ministry Review (Review). The Review is the MOE s evaluation of the EA. The purpose of the Review is to determine if the EA has been prepared in accordance with the approved ToR and therefore meets the requirements of the EAA and whether the evaluation of alternatives and environmental effects in the EA is sufficient to allow the Minister to make a decision about the proposed undertaking. The Review outlines whether the information contained in the EA supports the recommendations and conclusions for the selection of the proposed undertaking. MOE staff, with input from the GRT, evaluate the technical merits of the proposed undertaking, including the anticipated environmental effects and the proposed mitigation measures. The Review also provides an overview and analysis of the public, GRT and Aboriginal community comments on the EA and the proposed undertaking. While the Minister of the Environment considers the conclusion of the Review when making a decision, the Review itself is not the EA decision making mechanism. The Minister s decision will be made following the end of the five-week Review comment period. The Minister s decision is subject to the approval of the Lieutenant Governor in Council. The Review comment period allows the GRT, the public, Aboriginal communities and other interested persons to see how their concerns with the EA and the proposed undertaking have been considered. During the Review comment period, anyone can April

8 submit comments on the EA, the proposed undertaking and the Review. In addition, anyone can request that the Minister refer the EA, or any matter relating to the EA, to mediation or the Environmental Review Tribunal for a hearing if they believe that there are significant outstanding environmental effects that the EA has not adequately addressed. Requests for mediation can be made at any time. Requests for a hearing can only be made during this comment period. The Minister will consider all requests and determine if a hearing is necessary. April

9 2. The Proposed Undertaking Background The DRIC Project is an initiative that has been jointly developed by the Border Transportation Partnership, which includes the MTO, Transport Canada, the Michigan Department of Transportation and the United States (US) Federal Highway Administration. The Partnership identified the need to address the safe and efficient movement of people and goods in the long-term between Southwestern Ontario and Southeastern Michigan. Together the Partnership identified a recommended plan which consists of a new crossing of the Detroit River, a customs plaza and an access road linking these to the existing Highway 401 (see Figure 1). The proposed customs plaza (identified as Plaza B1 in the EA) is located in the Brighton Beach Industrial Park in Windsor. The proposed Detroit River crossing is a bridge (identified as Crossing X-10 in the EA) connecting the Canadian plaza to the US plaza. This recommended plan needs EA decisions on both sides of the border. In the US, a decision under the National Environmental Policy Act is required. The US Federal Highway Administration issued a Record of Decision in January 2009 which approves the US portion of the DRIC Project. In Canada, a decision is required under the Ontario EAA and the Canadian Environmental Assessment Act (CEAA). The EA on which this Review is based has been submitted by the MTO in fulfilment of the EAA requirements. The screening-level CEAA process is underway. It is estimated that a screening document will be released at around the same time as the publication of this Review. Together with its federal counterpart (Transport Canada), the MTO developed one body of documentation (technical studies) to support the provincial and federal EA applications. Though the DRIC Project is a joint effort of MTO and Transport Canada, throughout this Review except where otherwise noted, the proponent will be described only as the MTO as this Review is focussed on the provincial EA process. Description of the Proposed Undertaking MTO is seeking approval under the EAA only for the access road portion of the recommended plan. A decision under CEAA is required for the customs plaza and bridge as international bridges and customs activities fall under the domain of the federal government. The proposed undertaking is the Windsor-Essex Parkway, a six-lane urban freeway with 11 tunnels that would run from the existing terminus of Highway 401 in the Town of Tecumseh to the proposed new bridge in the City of Windsor. Part of the road would also be in the Town of LaSalle. Also proposed is a four-lane service road that would connect existing Highway 3 to Huron Church Road (see Figure 2). The estimated April

10 cost is approximately $1.86 billion (2011 dollars). More detail about the proposed undertaking, including concept design features, is presented in chapter 9 of the EA. If EAA approval is granted, the proposed undertaking must be completed in accordance with the terms and provisions outlined in the EA; any conditions of approval that may be imposed; and will include the details outlined in the EA. In addition, the MTO must still obtain all other approvals it may require for the proposed undertaking. April

11 Figure 1: The Recommended Plan Source: Detroit River International Crossing EA, Exhibit E.1 April

12 Detroit River International Crossing Project Environmental Assessment Review Figure 2: The Windsor Essex Parkway Source: Detroit River International Crossing EA, Exhibit 8.14 April

13 3. Results of the Ministry Review The Review provides the analysis of the EA. The Review is not intended to summarize the EA, nor present the information found in the EA. For information on the decision making process, refer to the EA itself. The EA and supporting documentation outlines the EA planning process and demonstrates how the proponent has selected the proposed undertaking and made the final decision. The purpose of the Ministry Review is to determine whether: The EA has met the requirements of the ToR and the EAA. There are any outstanding issues with the EA. The proposed undertaking has technical merit. 3.1 Conformance with ToR and EAA Ministry Analysis The MOE coordinated an analysis of the EA with the GRT that, in part, looked at whether the requirements of the ToR have been met. The MOE concludes that the EA followed the framework set out in the approved ToR, addressed the commitments made in the approved ToR and demonstrated how the required components of the EAA have been met. Must Haves in the EA: The EA must be prepared in accordance with the approved ToR. EA must include all the basic EAA information requirements. EA demonstrates where all the additional commitments in the ToR were met, including studies and the consultation process. More discussion on this topic can be found in section 3.2 of this Review. Also, Appendix A summarizes this analysis and identifies how the ToR requirements have been addressed in the EA Consultation One of the key requirements of the EAA is the need to consult interested persons during the preparation of the EA. This Section 5.1 of the EAA states: consultation is the responsibility of the proponent and must be When preparing proposed done prior to the submission of the EA and in accordance with terms of reference and an the consultation plan outlined in the ToR. This consultation environmental assessment, the plan included public open houses and follow-up activities, proponent shall consult with such maintenance of a DRIC Project website, and direct consultation persons as may be interested. with stakeholders, including local municipalities, private sector groups, and provincial and federal agencies. A program for consulting Aboriginal communities was also in place. According to the EA, over 300 consultation events were held by the MTO during the preparation of the EA. The MOE is satisfied with the level of consultation with the public, the GRT, local municipalities and other interested persons that occurred during the preparation of this EA and concludes that the level of consultation was appropriate for this proposed April

14 undertaking. The EA adequately documents the consultation methods used by the MTO to engage all interested persons during the preparation of the EA. Once the EA was submitted to the MOE, additional MOE-driven consultation occurred during the EA comment period. The GRT, the public, local municipalities, Aboriginal communities and other interested persons were provided with the opportunity to review the EA and to submit comments to the MOE on whether the requirements of the ToR had been met, on the EA itself and on the proposed undertaking. The MTO has continued to consult interested persons such as the GRT and the Walpole Island First Nation, since the EA was submitted. All comments received by the MOE during the EA comment period were forwarded to the MTO for a response. The rest of this subsection contains a brief discussion about the consultation process and highlights of some of the comments that were made about the EA and the proposed undertaking. Summaries of the all comments received along with responses to those comments have been prepared by the MTO and are included in Appendix B of this Review. Full-text copies of the submissions are available in Appendix C. Given the number of public submissions, only a sample of the public comments received is included in Appendix C. Consultation with the Government Review Team Consultation with the GRT was conducted throughout the EA process. The MTO organized a Canadian Agency Advisory Group (CANAAG) made up of provincial and federal representatives with a mandated interest in the proposed DRIC Project. The names of the agencies who make up the CANAAG is listed in the EA. In the MOE context, the CANAAG is equivalent to the GRT. This group, which met on eleven occasions, was actively involved in the assessment of alternatives, environmental effects and impact management measures. As necessary, the MTO met with individual members of the CANAAG to discuss matters relevant to that specific agency. Throughout the process, from the development of technical workplans to the draft EA, the CANAAG provided feedback to the MTO to aid in the preparation of the final EA. The MTO released the draft EA for comment for a 30-day period that ended on December 12, Only a draft of the main EA document was released for review. That document presented conclusions about the proposed undertaking, but some reviewers noted the difficulty in commenting on those conclusions without the benefit of seeing the technical studies on which the conclusions were based. The comments that were received about the draft EA were considered by the MTO and incorporated into the final EA as necessary. Once the final EA was submitted to the MOE for a decision on December 31, 2008, it was sent to the GRT for review and comment. The GRT for this EA included at a minimum, the same members as the CANAAG. Comments were received from Fisheries April

15 and Oceans Canada (DFO), Health Canada, Environment Canada, the MOE, the Ministry of Culture (MCL), Ministry of Natural Resources (MNR), Ministry of Tourism (MTR), Ministry of Agriculture, Food and Rural Affairs (OMAFRA), Ontario Realty Corporation (ORC), Hydro One Networks Inc (Hydro One), and the Essex Region Conservation Authority (ERCA). All comments received were forwarded by the MOE to the MTO for a response. OMAFRA had no concerns. Minor comments were submitted by the MCL about cultural definitions and by the MTR about signage along the route of the proposed Windsor-Essex Parkway. According to both these ministries, the MTO has adequately responded to their comments. The ORC and Hydro One provided comments about the potential impacts to their respective facilities, the Windsor Public Health Laboratory and the Keith Transformer Station. The Windsor Public Health Laboratory will be displaced by the proposed undertaking and the MTO has committed to discussing the potential impacts of this displacement with the ORC. Hydro One has stated that potential expansion of the Keith Transformer Station, which is located near the proposed customs plaza in the area of Brighton Beach Industrial Park, will be constrained by the DRIC Project. Transport Canada as the proponent for the federal part of the proposed DRIC Project will need to consider this comment during the design of the customs plaza. Section 3.3 of this Review discusses some of the more substantive GRT comments in detail. These comments were received from DFO, Health Canada, Environment Canada, the MOE, and the MNR. Consultation with Local Municipalities The DRIC Project will be located within three municipalities and one county. These are Windsor, LaSalle, Tecumseh and the County of Essex. The customs plaza and the bridge are completely within Windsor. Approximately half of the proposed undertaking is located in the County of Essex (specifically, LaSalle and Tecumseh) and the other half in Windsor. Early in the EA process, the MTO formed a Municipal Advisory Group (MAG) made up of the municipalities identified above as well as the Towns of Lakeshore, Amherstburg and Essex. Local school boards were also invited to join the MAG. According to the EA, 14 MAG meetings have occurred. The MTO has also consulted individual members of the MAG, most notably Windsor which has been the most visible municipal participant throughout the EA process. According to the EA, the MAG and individual municipalities were involved in outlining areas of municipal concern, and the generation, refinement and assessment of alternatives. The draft EA was also available to the municipalities and school boards for review. Tecumseh and the County of Essex expressed support for the proposed undertaking. April

16 Only Windsor expressed concerns. The comments that were received about the draft EA were considered by the MTO and incorporated into the final EA as necessary. Once the final EA was submitted, the same municipalities and local school boards were invited to provide comments about the final EA and the proposed undertaking. As with the draft EA, Tecumseh and the County of Essex expressed support for the proposed undertaking while Windsor expressed significant concerns. Windsor has stated that it has no concerns with the bridge and customs plaza aspects of the DRIC Project, nor with the location of the proposed Windsor-Essex Parkway. Its concerns relate specifically to the design of the Windsor-Essex Parkway. These concerns will be briefly mentioned here and further expanded upon in sections 3.2 and 3.3 of this Review. In general, Windsor believes that the EA is deficient in relation to the approved ToR and that effects to human health from air and noise pollution have not been adequately assessed. In discussing Windsor s concerns, the GreenLink proposal must be introduced, a road design Windsor has stated it developed in response to an invitation from the MTO for community input into the assessment of alternatives. In October 2007, Windsor publicly announced GreenLink through a series of open houses it organized. According to Windsor, the GreenLink proposal was overwhelmingly supported by the community compared to the then Parkway proposal (pre-cursor to the Windsor-Essex Parkway). In simple terms, the major difference between the Parkway and GreenLink was the provision of about 2 kilometres more tunnels with the GreenLink proposal (3.8 versus 1.8 kilometres). In October 2007, Windsor presented the GreenLink proposal to the MTO and expected that it would be evaluated along with the other alternatives. It is not clear to MOE staff from the available literature on GreenLink if Tecumseh, LaSalle or the County of Essex were involved in the development of GreenLink. What is known is that from comments submitted at the draft and final EA stages, Tecumseh and County of Essex have endorsed the DRIC Project. The MTO did not evaluate Windsor s GreenLink proposal as part of the EA process, a fact that has been criticized by Windsor. The MTO was also criticized for failing to report in its EA about the open houses Windsor held to announce GreenLink and the public support for it. According to the MTO, the GreenLink proposal was not evaluated as part of the formal EA process because: The MTO was already evaluating six reasonable alternatives and it was under no legal obligation to look at any alternatives it did not generate; GreenLink was not an end to end solution like the MTO alternatives (GreenLink did not connect Highway 401 to the plaza); GreenLink shoulder widths and side slopes did not meet emergency safety standards; April

17 GreenLink cost was not calculated in the same way as the cost of the other alternatives (the MTO used 2011 dollars while GreenLink used 2007 dollars); Air quality analysis of the full tunnel alternative suggested that there were no substantial air quality benefits from a full tunnel so the amount of tunnels the MTO was proposing was adequate. The MTO also stated that it adopted some of the GreenLink principles and incorporated them into its own Parkway alternative as appropriate, such as adding the Spring Garden tunnel. After the Windsor-Essex Parkway was announced as the preferred alternative by the MTO in May 2008, Windsor developed a modified GreenLink proposal and presented that to the MTO in July and August Modified GreenLink is more similar to Windsor-Essex Parkway than was the original GreenLink. For example, how cost was calculated, road length and construction features are now similar. The main exception is still the length of tunnelling with modified GreenLink now having one kilometre more of tunnelling than the Windsor-Essex Parkway (2.8 versus 1.8 kilometres). According to Windsor, at an additional cost of $200 million, the modified GreenLink proposal delivers a greater benefit to air quality and human health than the Windsor-Essex Parkway. The MTO met with Windsor on two occasions in July and August 2008 to learn about the modified GreenLink proposal but did not modify its preferred alternative and proceeded with the Windsor-Essex Parkway as the undertaking for which it is seeking approval. Consultation with the Public and Other Stakeholders Consultation with the interested public was a key component of the MTO s planning process. The public, which includes the general public and other stakeholders such as local businesses and institutions, was provided several opportunities to participate in the preparation of the EA and provide input. Public participation was sought in a variety of ways. Mailing lists were prepared early in the EA and interested members were added to the list throughout the EA process. The mailing lists provided an on-going means for the MTO to allow the public to stay involved in the process. As described in the EA, other consultation activities included: Seven public information open houses ( five were proposed in the approved ToR); Public workshops; Question & answer sessions and other public meetings; Meetings with individual community groups, such as residents from Spring Garden, Sandwich, Oliver Estates, Huron Church Line, Kendleton Court, Sansotta, Trillium Court, and Talbot Road; Meetings with emergency services personnel fire, police, ambulance; Formation and maintenance of a Community Consultation Group 18 meetings held; April

18 Formation and maintenance of a Crossing Owners, Operators and Proponents Group meetings held individually and collectively with these private interests which have specific proposals for new border crossings; Formation and maintenance of a Private Sector Advisory Group bi-national advisory group made up of business owners. The consultation events allowed the MTO to gather information covering a wide spectrum of interests for input into the EA planning process. A draft EA was made available electronically on the project website and in hard copy at specific locations in the local municipalities for public comment. The MTO incorporated comments as necessary into the final EA before it was submitted to the MOE for a decision. To announce the submission of the final EA and the availability of the document for review, the MTO posted a Notice of Submission in nine newspapers in the study area. Approximately 863 comments were received during the comment period. A couple dozen more comments were received after the end of the comment period. The comments were forwarded to the MTO for a response. There were several letters of support for the proposed undertaking. Most of the comments received expressed concern about the proposed undertaking and support for GreenLink and/or more tunnelling. Many of these concerns mirrored Windsor s submission, but not in as much detail. Due to their similarities, the concerns raised by the public are discussed in tandem with Windsor s concerns. Several institutions, businesses and environmental groups submitted comments. These include the Canadian Transit Company/Detroit International Bridge Company (DIBC/CTC), St. Clair College, Al-Hijra Mosque & School, Brighton Beach Power, Windsor Crossing Outlet Mall, Southwest Detroit Environmental Vision, Citizens Environmental Alliance, and McDonald s. With the exception of McDonald s, each submitted comments about the potential effect of the proposed undertaking on their particular facility or on the environment. Please see Appendix B for a summary of the comments received and the MTO s responses to those comments. Aboriginal Community Consultation In addition to the EAA requirements that interested persons be consulted, the Crown and proponents must turn their minds to consultation with Aboriginal communities who may have aboriginal or treaty rights that could be affected by the proposed undertaking. This is because it is well established in law that the Crown has a duty to consult Aboriginal communities where it is contemplating action that may adversely affect established or asserted aboriginal or treaty rights. April

19 Early in the planning process, the MTO identified Aboriginal communities that may have an interest in, or be potentially affected by, the proposed undertaking. The communities identified included the: Walpole Island First Nation (WIFN); Oneida Nation of the Thames; Caldwell First Nation; Munsee Delaware Nation; Aamjiwnaang First Nation; Chippewas of Kettle and Stony Point; Moravian of the Thames; and, Chippewas of the Thames. The WIFN has been actively participating in the EA process. The MTO has met with the WIFN on at least ten occasions and has provided funding to the Aboriginal rights stem from practices, customs or traditions which are integral to the distinctive culture of the Aboriginal community claiming the right. Treaty rights stem from the signing of treaties by Aboriginal peoples with the Crown. Aboriginal rights and treaty rights are protected by section 35 of the Constitution Act, community to retain a consultant to review and provide input into the study materials and findings. The MTO has been providing the other Aboriginal communities with information about the DRIC Project and has invited comment at each key milestone. The draft EA was sent by the MTO to all the Aboriginal communities for comment. Comments were received from the WIFN and incorporated by the MTO into the final EA as appropriate. Once the final EA was submitted, the MOE provided the same Aboriginal communities with a copy of the EA and a request for comments. During the comment period no comments about the EA were received. The MOE is aware of the WIFN s interest in the EA. The MTO continues to work with the WIFN to ensure that any concerns they may have are adequately considered Conclusion The EAA requires a proponent to consult interested persons during the preparation of the EA and the report on the results of those consultations. The EAA does not require a proponent to report on consultation conducted by another party. The MOE is satisfied that the MTO appropriately followed the consultation plan outlined in the approved ToR. The MOE is satisfied that the MTO provided sufficient opportunities for the GRT, the public, local municipalities, Aboriginal communities and other interested persons to be consulted during the preparation of the EA. The EA documents the consultation methods used by the MTO to engage all interested persons during the preparation of the EA. The EA also demonstrates how input from interested persons assisted in the generation, evaluation, and refinement of alternatives. 3.2 EA Process EA is a planning process that requires the proponent to identify an existing problem or opportunity, consider alternative ways of addressing the problem or opportunity, evaluate the environmental effects of the alternatives, and select a preferred alternative. April

20 According to the approved ToR, the EA would be prepared in accordance with section 6.1(2) of the EAA. Section 6.1(2) outlines the generic requirements of the EAA as outlined briefly in the preceding paragraph. In the approved ToR, summaries of the problems and opportunities facing cross-border transportation in the Detroit River area were given. Improving the movement of people and goods in the area became the purpose of the EA study being carried out in Canada and the US. The intent was to conduct one body of work pertaining to alternative generation and evaluation, and document the project findings in a format(s) suitable for review by bi-national government agencies, the public and other interested persons. A brief summary of MTO s planning process is outlined below. Several alternatives to were identified in the approved ToR and carried forward for evaluation in the EA. The alternatives to considered were: Do nothing; Improvements to border processing; Transportation demand management; New and/or improved rail alternatives with new and/or expanded international rail crossing; New and/or improved transit services; New and/or improved marine services; New and/or improved road alternatives with new or expanded international road crossing; and Combinations of the above. After describing the environment in the Preliminary Analysis Area (PAA), the MTO conducted an analysis of the alternatives to based on criteria originally identified in the approved ToR. The PAA included Windsor, and Amherstburg, LaSalle and Tecumseh within the County of Essex. The preferred alternative to was identified as new and/or improved road alternatives with new or expanded international road crossing. The development, assessment and evaluation of alternative methods occurred in two stages. The illustrative alternatives stage involved the development of illustrative crossing, plaza and access road alternatives within the broader PAA. These represented the long list of alternative methods, and were developed at a conceptual level. The identification of plaza locations was conducted first due to the relatively large property requirements and siting requirements dictated by the Canadian Border Services Agency. Thirteen potential plaza locations were located on the Canadian side and coordinated with potential plaza locations on the US side of the border. Crossing options (bridge and tunnel) were then developed to join the plazas on both sides of the border. Fifteen crossing locations were identified. Multiple access road alternatives to the plaza were then identified. April

21 Using criteria originally identified in the approved ToR and refined early in the EA process, an evaluation of the illustrative alternatives took place. The Reasoned Argument Method was the primary evaluation method. An arithmetic evaluation method was the secondary method used. Based on the evaluation of the illustrative alternatives, the more refined Area of Continued Analysis (ACA) was identified, which served as the basis for the development of the practical crossing, plaza and access road alternatives. These represented the more refined alternatives that emerged from the assessment and evaluation of the illustrative alternatives. The ACA area extended from Broadway Avenue to Brock Street in Sandwich Town on the Canadian side. The ACA on the US side generally matched up. Practical crossing, plaza and access road alternatives were developed within the ACA. The crossing and plaza alternatives were organized by crossing corridor to determine the best crossing/plaza combination by corridor. These were then evaluated against each other using the same criteria and methodology as for the illustrative alternatives. Crossing X-10B and Plaza B1 were selected as the preferred alternatives. Practical access road alternatives were developed on the premise that the access road would extend from Highway 401 at North Talbot Road to the new plaza. Five practical alternatives (at grade, below grade, tunnel) were originally identified. After reviewing public input, a sixth alternative was developed. This Parkway alternative was a combined below grade-tunnel alternative. After evaluating the practical alternatives, the Parkway alternative (renamed the Windsor-Essex Parkway) was identified as the preferred access road EA Process Comments Below is a discussion of comments that were made regarding the EA process conducted by the MTO. Comments were made by the CTC/DIBC and Windsor. Both requested that the MOE to find the EA deficient. The CTC/DIBC are the private sector owners of the Ambassador Bridge, and proponent of the proposed Ambassador Bridge Enhancement Project. In their comments about the EA, they state that the EA is deficient and should be rejected because: The federal/provincial coordinated EA process have not been met; All technical studies in support of the EA were released late; All reasonable and practical alternatives to were not adequately considered; The EA omits key information about the Ambassador Bridge Enhancement Project; Assessments of cumulative effects and transboundary effects have not occurred; and A federal screening report has not been prepared or submitted. Windsor argues that the DRIC EA is deficient but should not be rejected but instead referred to mediation by the Minister. Windsor argues that the only requirements of the April

22 subsection under which the EA was to have been prepared that have been met are the requirements related to the description and rationale for the undertaking. The Director of the MOE s Environmental Assessment and Approvals Branch has the authority under the EAA to issue a deficiency statement if she believes that the EA is deficient in relation to the approved ToR and the purpose of the EAA. A statement of deficiency is to be issued at least 14 days before the deadline for the completion of the Review. Upon receipt of a deficiency statement, a proponent has seven days to rectify the deficiencies and the Minister can reject the EA if the Director is not satisfied that the deficiencies have been rectified. Based on a review of the approved ToR, the EA and the EAA, the comments received, and the responses provided by the MTO, a deficiency statement was not issued by the Director. The reasons for this are outlined in the paragraphs below. The concerns raised by the CTC/DIBC do not outline any problems with the approved ToR. Most of the concerns relate to the federal EA process. The provincial and federal EA processes are being coordinated in accordance with the Canada-Ontario Agreement on Environmental Assessment Cooperation. One body of work has been prepared by the MTO and Transport Canada to support the provincial and federal EA applications. The provincial EA process is slightly ahead of the federal process at this point. A federal screening document will be prepared by the MTO and Transport Canada and will be available for review by the public, Aboriginal communities and other interested communities when it is completed. As part of federal EA process, assessments of cumulative and transboundary effects will be undertaken. In relation to EAA subsection 6.1(2) requirements not being met, Windsor states that the descriptions of the environment, environmental effects, impact management measures and consultation were not done properly. The EAA does not use the term properly and only requires that these matters be described. As required, the MTO has provided these descriptions in the EA (see Appendix A for an analysis of the EA in relation to the approved ToR). Some reviewers, including the City of Windsor, have expressed concern about the information related to the description and evaluation of the environment, environmental effects and impact management measures that were included in the EA (see section 3.3 of this Review for more discussion related to this). The MTO has provided some supplementary information to the MOE and on the DRIC Project website, to clarify the descriptions or explain its decision making and has committed to providing more information as required. Windsor also argues that the ToR requirements were not met because the MTO failed to present the results of the alternatives evaluation before choosing the preferred alternative. The MTO did release the results of its alternatives analysis to the public before a decision was made. This was done for five of the six alternatives evaluated. The sixth alternative April

23 was developed based on public input and was introduced to the public at an open house with the evaluation of the first five alternatives. The MOE does not believe that the fact that the evaluation of one alternative was not released prior to the announcement of the preferred alternative, while the analyses of five were, is reason to deem the EA deficient. The public and other interested persons had the opportunity to comment on the comparative analysis of all six alternatives and the preferred alternative through open houses held in the summer of 2008, through the submission of the draft EA and again through the submission of the final EA. Windsor was also critical of the MTO s failure to evaluate the GreenLink alternative. In response, the MTO has stated that it did not evaluate GreenLink because it was under no legal obligation (by the approved ToR or the EAA) to consider an alternative generated by another party, as well as for reasons stated earlier in this Review related to safety standards and cost. In evaluating Windsor s claim and the MTO s response, the MOE concludes that it was not unreasonable that GreenLink was not evaluated by the MTO as part of the EA process. A proponent is required to look at a reasonable range of alternatives during the EA process and the MOE concludes that the six alternatives evaluated represented a reasonable range of alternatives. The MTO was required to provide the rationale for the alternatives it did evaluate and the MOE has no concerns with how this was done. Windsor developed modified GreenLink to make it more in line with the Windsor-Essex Parkway but it was done after the MTO announced its preferred alternative. In order to adopt the modified GreenLink proposal, the MTO would have had to redo its alternatives analysis. It is not unreasonable that a proponent would not go back and redo the alternatives analysis so late in the planning process. The MTO is confident that it has produced an undertaking that meets the requirements of the EAA. Now that the EA has been submitted to the MOE for a decision, it will be up to the Minister to decide. Rather than reject the EA because of the deficiencies it identified, Windsor has requested that the Minister order the MTO to engage in mediation with Windsor, with the focus of the mediation being the mitigation of access road and EA deficiencies. It was suggested by Windsor that the deficiencies are to be mitigated by the use of strategic tunnelling with the understanding that the cost of doing so is no greater than $200 million more than the construction cost of the Windsor-Essex Parkway; or essentially the same life cycle cost of the Windsor-Essex Parkway. Mediation is used to help parties that have not been able to reach an agreement by themselves resolve a dispute; however, not all disputes are amenable to the mediation process. In determining whether an unresolved issue is a suitable candidate for mediation, the MOE considers various factors including those outlined in the Code of Practice: Mediation in Ontario s Environmental Assessment Process, June These include the willingness of the parties to participate in a mediation process, whether other attempts have been made to resolve the issues, whether the issues are identifiable and negotiable, whether the parties are committed to achieving resolution, and whether it is April

24 necessary to resolve the dispute to ensure protection, conservation and wise management of the environment. At the time of the completion of this Review, the MOE was still considering Windsor s mediation request. At this point, the MOE believes it is in the public interest to let the EA process continue, in order to evaluate additional materials that have been provided and determine if they will address the concerns raised. Not issuing a deficiency statement does not automatically mean that the proposed undertaking will be approved. As stated previously, there are still outstanding issues that need to be dealt with. The ultimate decision about whether the proposed undertaking will be approved rests with the Minister and the conclusions of this Review is one of many things the Minister must consider in making that decision Conclusion The EA contains an explanation of the problem or opportunity that prompted the study. The MTO evaluated a reasonable range of alternative access road locations and design in the study area using criteria that considered the EAA s broad definition of the environment (this includes natural, socio-economic, cultural, and agricultural environments). The EA provides a description of the affected environment in the study area. The EA identifies the elements of the environment that may be affected, either directly or indirectly, by the alternatives. The EA identifies the actions necessary to mitigate potential effects. The EA describes the advantages and disadvantages of the proposed undertaking based on those potential environmental effects. In some cases more information has been requested by the GRT and the MTO has either already provided this information or where necessary, have made commitments to do so. Once received, any additional information will be available for review by interested persons. 3.3 Proposed Undertaking The proposed undertaking is described in chapter 9 of the EA (see also section 2 of this Review), and was evaluated based on the advantages and disadvantages to the environment. A broad definition of the environment was used to evaluate the potential effects of the proposed undertaking. The MTO has proposed a refinement to the design of the service road component of the proposed undertaking. Essentially this is a modification to the design of the service road and ramps located between Huron Church Line and Geraedts Drive (St. Clair College). A copy of the memorandum from the MTO about this refinement is included in Appendix D of this Review. It is also available on the DRIC Project website. In April 2009, the MTO submitted a new EA supporting document entitled, Road Safety Assessment Report. This document forms part of the EA submission. According to the April

25 MTO, although safety was not one of the evaluation factors, the Road Safety Assessment contributes to the MTO s understanding of the Regional Mobility Factor. A copy of the report is also available on the DRIC Project website. As stated earlier in this Review some substantive comments were made during the EA comment period that need to be considered and addressed, as appropriate, before a decision is made about the proposed undertaking. An overview of some of these comments is briefly outlined below. Where there has been some resolution of concerns that has also been identified. A complete summary of the detailed comments and the MTO s responses to those comments, including the ones not summarized below, is contained within Appendix B. Appendix C contains the full text of all the comments that were received. Due to the length of Windsor s submission, only the cover memo has been appended to this Review. This cover memo summarizes the results of the peer reviews that were conducted on behalf of Windsor. The entire submission is available on Windsor s GreenLink website at: As most of the public comments echoed Windsor s comments, there is no separate discussion of public comments below. Several examples of public comments have been included in Appendix C Comments Related to the Proposed Undertaking Air Quality Comments about the air quality assessment were made by the MOE, Environment Canada and Windsor. According to the MOE reviewer, the MTO appears to have made considerable effort to accurately assess the impact that the proposed undertaking would have on the air quality of Windsor. The reviewer concluded that the model selection and application are appropriate to a project such as this. However, more information about the modeling areas farther from the proposed road and the modeling inputs and the selection of the target year for meteorology would have been beneficial. In some instances there will be increases in certain air pollutants though based on how the data was presented, the reviewer was unclear where this will occur, how widespread this is, or potential mitigation measures. The reviewer also suggested that there be more discussion by the MTO about potential environmental improvements. Environment Canada has stated that it is generally supportive of the detailed and comprehensive approach taken to the assessment of air quality impacts for the DRIC Project. It agrees with the EA conclusion that the Windsor-Essex Parkway will mitigate future transportation related impacts within the study area relative to the future "No- Build" alternative. It has, however, requested that the location of residences and other sensitive receptors within the right-of-way of the bridge, customs plaza and road be provided. April