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1. Final Arguments- OMB PL100362 Preservation of Agricultural Lands Society (PALS ) -John Bacher

June 28 th , 2012

During this hearing the President of the Bert Miller Nature Club Dr. Richard Stockton caught the essence of the issues on proposed zoning and Official Plan amendments to facilitate the construction of the Fort Erie Motor Speedway. Dr. Stockton stressed that the Provincial Policy Statement (PPS) should be considered in all its aspects and applied comprehensively.

The principal reason that amendments to the Official Plan and Zoning By-laws of Niagara Region and Fort Erie are before the Ontario Municipal Board is the strength of their agricultural policies.

The policies governing the subject lands were well summarized in the Niagara Region Document Brief, Tab 4. Appendix #2, page 2. Here Regional Planner Peter Colosimo notes that, “the PPS states that prime agricultural areas shall be protected for long-term agricultural use where agricultural uses, secondary uses and agriculture-related uses are permitted.” Mr. Colosimo stresses that, “The Regional Policy Plan supports the use of the agriculture area only for agriculture and agricultural related uses. ”

The fact that the subject lands constitute prime agricultural land protected under the PPS was agreed by experts of all parties at the hearing. The basic reality was well expressed by the proponent’s soils specialist Sean Colville. He indicated that the subject lands were part of the Haldimand Clay Plain physiographic region, which is characteristic of most of the good agricultural land in Ontario.

Mr. Colville’s testimony indicated that the subject lands are still used for cash crops typical of agriculture in south western Ontario - corn, wheat and soybeans. All experts agreed that these lands while not speciality crop lands are characteristic of the good agricultural land of southern Niagara.

The PPS does have provision for the removal of land from agricultural designations if no reasonable alternatives can be found on unprotected lands. A possible alternative site however, for the motorway on lands within a designated settlement area for the motorway was identified. It is described on Tab 4 of the Niagara Region Exhibit document, in “The Ministry Pre-Consultation Staff report ”. This was a compilation of provincial documents complied by Victor Doyle, then Manager of Community Planning and Development, on September 10, 2009.

The Ministry Pre-Consultation Staff Report identified a site within the Niagara Falls urban boundary as an alternative site. It is currently identified as “Resort Commercial ” in the Niagara Falls Official Plan and therefore is not considered a prime agricultural area.

The report then suggested that more commentary was needed in either, “the Planning Analysis and/or Agricultural Impact Analysis...” to “more fulsomely address” alternatives for a motorway site . The report found that this should be sought both in the proposed Niagara Falls Tourist Commercial area and in “the Region’s recent vacant land inventory for these types of uses.”

The more fulsome analysis of alternatives did not come from the analysis of the planners of Fort Erie and the Niagara Region before their respective Councils made their decisions. And, although the proponent and the municipalities of the Town of Fort Erie and the Niagara Region had the opportunity to respond to the points raised by in our evidence, they chose not to. The challenging evidence instead came in through Exhibit 23. This later formed the basis of expert evidence by the proponent’s Noise expert, Hazem Gidamy and their planner, Glenn Wellings. Part of the evidence that was presented was a blue circled map of the Thundering Waters Secondary Plan, which was approved in 2008.

Mr. Gidamy indicated that he had observed the presence of “thirty plus ” potential residential receptors for noise adjacent to the Niagara Falls alternative site, but also that he had not studied if these potential receptors were in residentially zoned lands. Likewise, Mr. Wellings indicated that he did not know if there had been lands removed from the potentially residential lands in the Thundering Waters secondary plan area since 2008 because of possible extensions of areas which are part of the natural heritage system.

These interpretations were subsequently refuted by Peter Colosimo who indicated that since 2008 there had been a major increase in the area designated in the Thundering Waters Secondary Plan as a Provincially Significant Wetland (PSW), which makes most of this area unsuitable for residential development.

To respect the PPS policies on agriculture should mean that the tests for the removal of an agricultural designation should be difficult and demanding. The proposed alternative location suggested by provincial public servants working for the common good has not been discredited. This alone is sufficient justification under the PPS why the proposed Official Plan and Zoning amendments to facilitate the construction of the Canadian Motor Speedway should be denied. These reasons however, are also reinforced by the policies to protect the Natural Heritage Systems in the PPS.

Dr Dickman drew the Board’s attention to the problem as defined in Table 11-2, in the Natural Heritage Manual of what it defines on page 105, as “Increased impermeable surface area. ” The harm of such increases in imperviousness to fish was well expressed in cross examination of the testimony of fisheries biologist Ian Barrett, expert witness for the proponent.

Mr. Barrett explained a good indicator species of warm water fish habitat is, Northern Pike. This was documented in his Master Thesis from the University of Waterloo. Although Barrett studied Pike in the Toronto Harbour, this fish is also found, according to the data in the proponent’s EIS in both Miller and Frenchman’s Creek. (although not necessarily on the subject lands).

Mr. Barrett studied Northern Pike in three locations in the Toronto Harbour. His locations were carefully selected to reflect various degrees of urbanization. Pike populations were healthiest where urbanization was the least evident. The second test area showed pike with moderate health. The smallest pike were found in the most urbanized area of Toronto Harbour. He indicated that the reason for this was that the urbanized areas stressed pike by forcing them to travel longer distances to obtain food.

The PPS policies to protect agricultural land work closely with those to protect streams from urbanization by encouraging the avoidance of sprawl. This is seen quite clearly in the features of the Fish Habitat policies to constrain urban growth as quite well expressed implementation guidelines, the Natural Heritage Manual.

Typical of all the rural landscape of Southern Ontario the subject lands have great environmental as well as agricultural significance which is protected by diverse policies of the PPS. The PPS has policies for wildlife habitat, fish habitat, wetlands and woodlands. All these policies are intended as minimal policies, which municipalities are encouraged to exceed.

One area in which Fort Erie has commendable policies that exceed the minimal provisions of the PPS, are its policies for “ thickets and meadowlands .” This is detailed in Policy 8.3.3 of the Fort Erie Official Plan. These policies are detailed on Tab 15, pg.

27 of the evidence book of the Town of Fort Erie. The policy encourages “a high priority on the preservation ” of these features “ in addition ” to those which are identified on Schedule C of the Town of Fort Erie’s official plan. The policy also encourages the protection of woodlands not identified on Schedule C.

Anthony Goodban, whom Sean Colville indicated was the author of the ecological classifications of the various natural communities on the subject lands, did not address policies 8.3.3 of the Fort Erie Official Plan intended to protect thickets and meadows.

Rather, he indicated that thicket communities in Fort Erie have become infested with an invasive exotic species, Buckthorn. Mr. Goodban asserts that the buckthorn tends to arrest natural succession by choking out native species. He indicated that this will remain a serious problem in Fort Erie until the municipality embarks on a program of Buckthorn eradication.

Problems with Mr. Goodban’s work on the identification of natural communities also emerged in the discussion of two of the future restoration sites south of Gilmore Road. On page 97 of the proponent’s Environmental Impact Statement these can be seen as white areas south of Gilmore Road between Laur Road and Sunset Road. These areas are part of the 18 hectares of new natural areas, which Mr. Colville indicated will be added as a result of the speedway development.

Mr. Goodban indicated that these forests south of Gilmore were successfully regenerating with native Green Ash and Pin Oak. The success of this regeneration is evidence that forests in Fort Erie can still regenerate successfully despite the problem of buckthorn infestation. The presence of this regenerating forest also indicates gaps in the vegetation communities identified by Mr. Goodban. They are not at all in the proponent’s evidence, although their existence was admitted by Mr. Colville.

The map on page 97 of the proponent’s environmental evidence and the corresponding description of the mapped Ecological Land Classification (ELC) communities indicates a number of thicket and meadow communities which the motorway proposal would remove. These thicket and meadow communities are intended to be protected by Policy 8.3.3 of the Fort Erie Official Plan, however no protection has been proposed by the proponent’s EIS. These unprotected thicket and meadow communities exist in two different clusters on the subject lands.

The first cluster of thickets and meadows identified by the proponent’s EIS are on the eastern subject lands south of Bowen Road, west of Laur Road and north of Bridge Street. These communities are linked to an adjacent regionally significant forest, which is protected by the proposed environmental protection by-law. They are proposed to be part of the Recreational Vehicle Parking area. They are identified as CUT 1, Mineral Cultural Thicket Ecosite, and CUH, Mineral Cultural Hedgerow .

The latter term is not in the Province’s Ecological Land Classification System. Mr. Goodban indicated that although the term is not in the current published version of the system, he employed suggested draft revisions. Ms.Dolch, land use planner for the Town Of Fort Erie indicated that the protection of such thickets is encouraged under Policy 8.3.3 of the Town of Fort Erie Official Plan

Mr. Goodban indicated that many of the trees in the various CUH communities he mapped and identified were on the subject lands through natural processes and were not consciously planted by humans. These species are the Swamp White Oak and the Pin Oak, which he indicated were likely planted on the subject lands through the actions of squirrels. These are found in a linear forest which stretches eastward from Laur Road. This is proposed to be crossed by two raceway links for the motorway. It has dominant Pin Oak and Swamp White Oak Trees. One of these features, identified in the ELC as the “ West Hedgerow ”, was formerly part of the Provincially Significant Wetland, Frenchman’s Creek wetland complex. It was downgraded from this status by the Ministry of Natural Resources as a result of a study prepared by Colville Consulting Incorporated.

The other raceway link is through an area identified as the “ East Hedgerow ”. Mr. Colville established that this feature is not a Significant Woodland, although in tree cover. Consequently, this feature, like other CUH systems identified by Mr. Goodban, is another example of what Policy 8.3.3 of the Fort Erie Official Plan seeks to protect as“ existing woodland ”, separate from those identified on Schedule C, as a Significant Natural Area. .

Disturbing environmental impacts of the motorway crossing of the linear forest east of Laur Road are identified in two separate sections of the EIS. The “ West Corridor ” is discussed in Tab 7, pgs. 99 to 107 and in Tab 8, pgs. 250 to 280. The “ East Hedgerow ” is described in Tab 7 pgs. 136 to 138. While the West Hedgerow provides habitat for only two pairs of Song Sparrows, the East Hedgerow supports a most impressive array of nesting birds. These include the Northern Flicker, Blue Jay, American Robin, Gray Catbird, Cedar Waxwing, Yellow Warbler, Rose-breasted Grosbeak, Common Grackle, Brown-headed Cowbird, Baltimore Oriole and the American Goldfinch.

The Fish Habitat provisions of the PPS are one of the most important aspects of the proposed official plan and zoning amendments. They are complimentary to agricultural policies in restricting the growth of impervious areas. This is especially the case for headwater areas. Both Ms. Dolch and Mr. Colosimo indicated that their respective municipalities had not identified headwater areas of streams for protection as encouraged by the Fish Habitat policies of the PPS. Mr Wellings testified that he was not familiar with the fish habitat policies and could not indicate whether Miller Creek was considered a Type One Fish habitat.

In his testimony, Dr. Dickman drew attention to a spring feature in the headwaters of Miller Creek east of Laur Road. He presented photographs of the spring and drew the Board’s attention to comments made on page 22 of the ‘Agreed Upon Statement of Facts’ by environmental experts. He noted that “ The experts agreed that the surface water feature which constitutes the headwaters west of Laur Road be maintained and its function enhanced. To minimize the potential for disturbance and pollution, this area should not be used for parking or camping by Canadian motorway Speedway visitors .”

Dr. Dickman’s concerns about the spread of toxins from the camping areas into the headwaters area of Miller Creek is reinforced by the Niagara Peninsula Conservation Authority’s mapping of “ Vulnerable Groundwater Areas ”, contained in Tab D pg. 178 of this document.

Dr. Dickman drew to the Board’s attention, through his Witness Statement and by photographic evidence, the reality of good forest cover on Miller Creek. His supplemental photographs taken on a June 15 th site visit show photographs of a tree area within 50 meters of Miller Creek, which in 2002 were identified by the Niagara Region as a woodlot, as shown in Tab F, pg. 216 of the EIS. These photos compliment earlier photographs taken on a site visit to Miller Creek. One of these photographs shows a tall Pin Oak over Miller Creek, which Dr. Dickman, citing the testimony of Mr. Goodban, indicated was likely planted on the site by the action of squirrels. Dr. Dickman indicated that due to the age of the tree, it would be likely 30 to 40 years before such tall trees could be expected to grow on the realigned Miller Creek.

Many of the proponent’s experts bolstered Dr. Dickman’s concerns about the impact of the proposed development on the related issues of water quality and fish habitat. For instance, Mr. Depodesta, indicated that the total floodplain area of the new Miller Creek would be likely somewhat less than the existing floodplain for Miller Creek. He also said untreated storm water would be discharged into both Miller and Frenchman’s Creeks in the event of a one in twenty-five year storm event (a yearly 4% chance of happening). Ian Barrett indicated that the low flow channel proposed for the diverted Miller Creek was similar to a low flow channel placed in the municipal drain features of Beaver Creek north of the subject lands which was not realigned. All these experts gave enhanced credibility to the thrust of Dr. Dickman’s analysis that the proposed development will harm fish habitat in Miller and Frenchman’s Creeks.

Dr. Dickman’s testimony was challenged by the introduction Exhibit 50 by the proponent. It was stated that since this study was on cold water brown trout, Dr. Dickman’s testimony on the importance of canopy cover was irrelevant to Miller Creek. However, in reply, Dr. Dickman indicated that two of the species in the study, Pike and Chub, are also found in Miller Creek. He also said that both cold and warm water fish species are harmed when water gets too warm.

In conclusion I would like to draw the Board’s attention to the uniqueness of the Carolinian assemblage in Fort Erie which resulted in Dr. Dickman’s appearance before the Board. He found that the community is unique in the Carolinian life zone by having 34% of its landscape in natural cover. From walking the subject lands and through air photo interpretation he found that much of the success of this natural cover was from the stable agricultural form which had been established since 1936. The magnificent Carolinian heritage of Fort Erie has been a legacy of a stable agricultural form, which has helped encourage farmers to retire lands to forest cover. The Natural Heritage and Foodland Preservation policies of the PPS seek to sustain this threatened heritage for future generations.

On this basis I ask you to reject the zoning and official plan amendments before you that are the basis for this hearing.