Side Road 26/27 Update

By George Powell, member of Watershed Action Group

In our Spring 2016 Newsletter, Don Avery and I reported on the status of Clearview Township’s application to the Niagara Escarpment Commission (NEC) to upgrade Side Road 26/27. The application was denied by the NEC and was appealed by Clearview to the Environmental and Land Tribunals Office (ELTO).

We are fighting to protect this gravel road that runs through sensitive Escarpment Natural land

Here’s what’s new since then:

*This spring Clearview Township discovered two areas where the proposed road work encroaches into wetland areas. This triggered policy 2.6.10 of the Niagara Escarpment Plan (NEP) which prohibits any development in a wetland unless the Plan is amended.

* On August 8, 2016, the Township requested an adjournment of appeal (proceedings), until the Townships’s application to the NEC for an amendment of the Plan could be dealt with.

* On September 8, 2016, we were advised by the ELTO that the Hearing of November 29, 2016, for reconstruction of Side Road 26/27 was cancelled, and all other dates related to the appeal, vacated. A date to discuss rescheduling the hearing was set for Tuesday, March 28, 2017.

On November 29 last year, the NEC denied Clearview Township’s application to reconstruct the road on the grounds:

*The Side Road 26/27 Reconstruction Project does not meet the test of “Essential” as defined in the Niagara Escarpment Plan (NEP), as alternatives to the reconstruction of Side Road 26/27 were not studied.

*A tunnel is now in place under county Rd 91 making Side Road 26/27 Reconstruction not needed.

*The Side Road 26/27 Reconstruction Project unnecessarily passes through the two most sensitive NEP land designations

*The Side Road 26/27 Reconstruction Project would negatively impact the Cold Water Fishery and damage steep environmental slopes.

Watershed Trust supported NEC’s position and made a presentation to the NEC in Owen Sound detailing concerns that construction could cause significant adverse environmental effects on the Pretty River Watershed. The project’s strategic location on the brow of the escarpment impacts wetlands, woodlands, fish habitat and wildlife corridors.

At the Owen Sound meeting we argued that a far more rigorous analysis of the environmental impacts of upgrading Side Road 26/27 should be undertaken. We asked NEC to deny the application and that they request the MOECC for a “bump up” of the environmental process. We believe our testimony made an impact on the NEC Board denying the road reconstruction. Clearview Township subsequently appealed the decision to the Environmental Land Tribunals Office (ELTO) with a date of November 29, 2016 set to initiate the hearing.

The Watershed Trust Board felt strongly about continuing to support NEC and approved participation in the hearing. Party status was requested and granted. We are fortunate that legal services have been provided to us pro bono by a prominent Toronto-based law firm. We have hired expert witnesses in engineering and fisheries and their testimonies strongly support our position.

During the spring and summer of 2016, Clearview continued their field survey work for reconstruction of the Side Road. The more detailed survey work identified two areas of the proposed roadwork that will impact area wetlands. Under Section 2.6.10 of the Niagara Escarpment Planning and Development Act, any development in a wetland is prohibited unless the Niagara Escarpment Plan (NEP) is amended. Clearview informed the ELTO on August 8, 2016, that they had found two additional wetlands in the road reconstruction area and asked to include the amendment of the NEP as part of the appeal hearing for the reconstruction of Side Road 26/27. We argued that the amendment needed to be decided upon first and the ELTO agreed with this opinion. As a result Clearview is preparing an application to amend the Plan expected by the end of the year.

On September 6, 2016, we were advised that a telephone conference is scheduled by the ELTO for Tuesday, March 28, 2017, to discuss rescheduling the appeal hearing but it will be dependent on the amendment hearing. What’s clear, overall, is that Clearview should never have proceeded with their NEC application until they had completed a more detailed environmental investigation and a proper level of Municipal Class Environmental Assessment (MCEA). Unfortunately, Clearview chose to ignore the recommendations of the NEC and carried out the project under the lowest level of MCEA, one that is used for routine projects that do not have an environmental impact, such as repaving your street. Short-cutting the environmental review process by Clearview demonstrates a lack of understanding of the MCEA process.

Watershed Trust made the point to the NEC that the Clearview submission treats the project as a minor undertaking, with most of the essential information about road widening, vertical alignment changes, snow removal, erosion protection, sediment control and fisheries impact being left to further approvals down the road.

We believe we are justified in requesting a much higher level of environmental assessment than has been carried out to date and one that properly considers public input and involvement rather than fast-tracking the project. We believe Clearview should be required to carry out an MCEA at a “C” level that engages the public and properly considers alternatives to reconstructing Side Road 26/27. We appeal to our members and the public to support our efforts and to help fund them. A donation to the Watershed Trust specific to this project is needed to keep up our opposition.