Environmental Assessment Act R.S.O. 1990, Subsection 7(1)

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 November 20, 2009. 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 Environmental Assessment and takes the comments of the government agencies, the public and Aboriginal communities into consideration.

Executive summary

Who

The Ontario Ministry of Transportation (MTO)

What

Ministry of the Environment’s Review of an Environmental Assessment (EA) for the proposed undertaking which includes, the provision of a transportation corridor comprised of the following elements:

  • a 50 kilometre (km) extension of Highway 407 from Brock Road to Highway 35/115 known as the east-west mainline extension
  • two north-south freeway links connecting the proposed 407 extension to Highway 401, one in Whitby (West Durham Link) and the other in Clarington (East Durham Link), each approximately 10 km in length
  • support facilities, including two highway maintenance facilities, two commercial vehicle inspection facilities and three truck lay-bys
  • protection for a dedicated transitway corridor along both the east-west mainline and East and West Durham Links, including the lands needed for two transitway maintenance facilities and 17 transitway stations

When

EA submitted: August 28, 2009
EA comment period: August 28, 2009–October 16, 2009
Ministry Review comment period: December 18, 2009–January 29, 2010

Where

The proposed extension of Highway 407 would be located in the Regional Municipality of Durham, including the Towns of Ajax and Whitby, the Cities of Pickering and Oshawa and the Municipality of Clarington.

Why

The purpose of the undertaking is to identify the transportation infrastructure needed in the Region of Durham and surrounding municipalities to support the transportation objectives of the provincial growth Plan for the Greater Golden Horseshoe by providing for the efficient movement of people and goods within the study area.

Conclusions

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. Notwithstanding, 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 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.

Environmental assessment process

Environmental Assessment (EA) is a proponent led 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’s evaluation process. For those proponents and undertakings subject to 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 potential 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 potential environmental effects of the alternatives and select a preferred undertaking from the alternatives. The proponent must consider actions to avoid, reduce and mitigate 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 may be 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 Ministry of the Environment (MOE/ministry) for review and approval. The ToR is the work plan or framework for how the EA will be prepared.

On January 17, 2005, the Minister of the Environment approved the Terms of Reference (ToR) for the 407 East EA. The approved ToR set 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 the long-term transportation needs of the Region of Durham and surrounding municipalities. The approved ToR also outlined a consultation plan for the EA process.

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 ministry for review and approval.

On August 28, 2009, the MTO submitted the 407 East EA to the ministry for approval for the proposed easterly extension of Highway 407 transportation corridor, consisting of both a highway and transitway, from Brock Road in the City of Pickering to Highway 35/115 in the Municipality of Clarington. The EA comment period ended on October 16, 2009.

1.3 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 and Aboriginal communities also had an opportunity to review the EA and submit their comments to the ministry. All comments received by the ministry are considered by the Minister before a decision is made about the EA undertaking.

The EAA, known simply as the Ministry Review (Review). The Review is the ministry’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 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. Ministry 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, agency and Aboriginal community comments on the EA and the proposed undertaking.

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 and Aboriginal communities to see how their concerns with the EA and the proposed undertaking have been considered. During the Review comment period, anyone can submit comments on the EA, the undertaking and the Review. In addition, anyone can request that the Minister refer the EA, or any matter relating to the EA, to the Environmental Review Tribunal for a hearing if they believe that there are significant outstanding potential environmental effects that the EA has not addressed. 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.

A Notice of Completion of the Review was published in a number of locally and regionally distributed newspapers indicating that this Review has been completed and is available for a five-week comment period from December 18, 2009 to January 29, 2010. Copies of the Review have been placed in the same public record locations where the EA was available, and copies have been distributed to the GRT members and potentially affected or interested Aboriginal communities. Those members of the public who submitted comments during the EA comment period have also received copies of the Review.

The proposed undertaking

Background

The MTO initially considered planning for Highway 407 during the 1940s and 1950s. Since that time a transportation corridor north of Toronto has been incorporated into the planning of all major transportation and land use decisions within the Greater Toronto Area. Construction of Highway 407 between Highway 403 in Halton Region through to Markham Road in York Region was initiated during the 1980s and completed in 2001. This portion of Highway 407 was protected as part of the Parkway Belt West Plan, and was carried out in accordance with provisions of the EAA. The completed sections include:

  • Highway 407 from the City of Burlington to Markham Road in the Town of Markham. The planning and design of Highway 407 from Highway 403 in the City of Burlington easterly to Markham Road was exempt from the application of the EAA by Order in Council Number 2865/83 dated October 18, 1983.
  • Markham Road to Brock Road in the Town of Pickering. The planning and design of Highway 407 from Markham Road through to Highway 7 east of Brock Road received EAA approval on June 24, 1998. This portion of the highway officially opened on August 30, 2001.

Following these approvals, the MTO initiated route planning studies to extend the 407 corridor east of Markham Road as two separate studies, each approximately 30 kilometres in length. The first extended from Markham Road in the Town of Markham to the Town of Whitby/City of Oshawa boundary, while the second considered a corridor extending further east to Highway 35/115 in the Municipality of Clarington.

Route planning studies for two connecting highway links were also initiated in 1990 to identify corridors to connect the proposed 407 corridor with Highway 401. Separate studies were initiated for a connection in the Pickering/Ajax and Whitby areas and for a connection in the Oshawa/Clarington area.

Technically preferred routes for these facilities were identified and presented to the public. However, in 1994 all 407 route planning studies (four in total), were put on hold and amalgamated into one larger study called the Highway 407 East Completion.

The 407 East EA was initiated in 2002 and the ToR for the EA approved by the Minister of the Environment on January 17, 2005.

Description of the proposed undertaking

MTO is seeking approval under the EAA for a transportation corridor comprised of the following elements:

  • a 50 kilometre (km) extension of Highway 407 from Brock Road to Highway 35/115 known as the east-west mainline extension
  • two north-south freeway links connecting the proposed 407 extension to Highway 401, one in Whitby (West Durham Link) and the other in Clarington (East Durham Link), each approximately 10 km in length
  • support facilities, including two highway maintenance facilities, two commercial vehicle inspection facilities and three truck lay-bys
  • protection for a dedicated transitway corridor along both the east-west mainline and East and West Durham Links, including the lands needed for two transitway maintenance facilities and 17 transitway stations (undertaking)

The Technically Preferred Route (TPR) for the transportation corridor is illustrated in Figure 1. The preliminary design of the proposed undertaking is presented in Volume II of the EA, Appendix B.

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; and will include the details outlined in the EA. In addition, the MTO must still obtain all other legislative approvals it may require for the undertaking.

A decision under the Canadian Environmental Assessment Act (CEAA) is also required for the disposition of federal lands and the need for the federal government to exercise regulatory duties in relation to the undertaking (e.g. issue a permit or license that is included in the Law List Regulations pursuant to the CEAA). More detail about the proposed undertaking is included in Chapter 8 of the EA.

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 preferred undertaking and made the final decision.

3.1 Conformity with ToR and EAA

3.1.1 Ministry analysis

The coordinated an analysis of the EA with the GRT that, in part, looked at whether the requirements of the ToR have been met. The 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.

Appendix A summarizes this analysis and identifies how the ToR requirements have been addressed in the EA.

3.1.2 Consultation

One of the key requirements of the EAA is the requirement for a proponent to consult with interested persons during the preparation of the EA. This consultation is the responsibility of the proponent and must be undertaken prior to the submission of the EA and in accordance with the consultation plan outlined in the ToR. The consultation plan included public information centres (PICs) and follow-up activities, community workshops, maintenance of a 407 East Project website and direct consultation with stakeholders, including both the regional and local municipalities, private sector groups, non-governmental organizations, and provincial and federal government agencies. A program for consulting Aboriginal communities was also in place.

The is satisfied with the level of consultation undertaken by the MTO with the public, the GRT, local municipalities, Aboriginal communities and other interested persons that occurred during the preparation of this EA and concludes that the level of consultation was appropriate for the proposed undertaking. recognises that in the case of Aboriginal communities, consultation will continue. Based on the consultation to date and the on-going discussions between the MTO and several Aboriginal communities, the is satisfied at this time with the consultation that the MTO has undertaken with Aboriginal communities.

MOE is satisfied that 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 and Aboriginal communities were provided with the opportunity to review the EA and to submit comments to the ministry on whether the requirements of the ToR had been met, on the EA itself and on the proposed undertaking, including any particular impacts about which they are concerned. The MTO has continued to consult interested persons such as the GRT and Aboriginal communities, since the EA was submitted.

All comments received by the during the EA comment period were forwarded to the MTO for a response. The remainder of this subsection contains a brief description of the consultation process and highlights some of the commitments that were made as part of 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 included 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 Regulatory Advisory Group (RAG) made up of provincial and federal representatives with a mandated interest in the proposed 407 East Project. The names of the agencies that comprise the RAG are listed in section 4.2.1.2 of the EA.

A total of 13 RAG meetings were held during the course of the EA study process, coinciding with key study phases. A number of meetings were also held with individual regulatory agencies and conservation authorities outside of the RAG forum and with the initiation of preliminary design were held on a monthely basis. These meetings are documented in the Record of Consultation that was submitted with the EA.

The MTO released a draft version of the EA for comment for a 30-day period that ended on July 20, 2009. The comments that were received about the draft EA were considered by the MTO and incorporated into the final version of the EA as necessary.

The final EA was submitted to the for a decision on August 28, 2009, at which time it was sent to the GRT for review and comments. The GRT for this EA included at a minimum, the same members as the RAG, with the exception being those RAG members whom had no concerns with the proposed undertaking. Comments were received from Environment Canada (EC), the MOE, the Ministry of Culture (MCL), the Ministry of Natural Resources (MNR), the Ministry of Agriculture, Food and Rural Affairs (OMAFRA), the Ministry of Municipal Affairs and Housing (MMAH), the Ministry of Energy and Infrastructure (MEI), the Ontario Provincial Police (OPP), Metrolinx, the Toronto and Region Conservation Authority (TRCA), the Central Lake Ontario Conservation Authority (CLOCA) and the Ganaraska Region Conservation Authority (GRCA).

All comments received were forwarded by the to the MTO for a response. OMAFRA and the OPP had no concerns. The MEI acknowledged that its concerns had been addressed by the MTO through its comments on the draft EA.

MMAH expressed a concern with the creation of new building lots within prime agricultural areas on remnant parcels left over from the acquisition of the necessary right-of-way. This issue pertained to all prime agricultural lands, regardless of whether they are in the Greenbelt. The MTO is committed to working with MMAH to identify remnant parcels of property that are suitable for the continued use as agricultural purposes.

Comments submitted by the MCL concluded that based on the proponent discussions and communications theus far, that the MTO will comply with the MCL’s legislative requirements and mandated interests in the future pertaining to the impact mitigation and conservation of Ontario’s cultural heritage resources located along the Highway 407 East transportation corridor.

Section 3.3 of this Review discusses some of the more substantive GRT comments in detail. These comments were received from the MOE, EC and the MNR.

Consultation with local municipalities

The 407 East Project will be located within the Regional Municipality of Durham and its five constituent local municipalities including, the City of Pickering, the Town of Ajax, the Town of Whitby, the City of Oshawa and the Municipality of Clarington.

Early in the process, the MTO formed a Municipal Technical Advisory Group (MTAG) made up of representatives from the municipalities identified above. Municipal representatives from the surrounding municipalities, including the City of Peterborough, the County of Peterborough, the City of Kawartha Lakes, the County of northumberland, the Region of York and the Town of Markham, were also invited to attend MTAG meetings on an as needed or requested basis.

According to the EA, a total of 13 MTAG meetings were held during the course of the Study, coinciding with key study phases. The MTO has also consulted individual members of the MTAG and made numerous presentations to municipal and regional Councils.

The draft EA was also made available to municipalities for review. A number of municipalities expressed and continue to express concern with the implementation of the Project, the integration of the Project with existing and future municipal infrastructure, properties that may be displaced by the Project and that the transportation corridor should include highway interchanges at municipally desirable locations. These concerns are briefly outlined in Section 3.3.1 of this Review and Appendix D.

Consultation with the public and other stakeholders

Consultation with interested members of the 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 process and interested members were added to the list as the process progressed. The mailing lists provided an on-going means for the MTO to keep the public informed and involved throughout the EA process. At the completion of the Study, the mailing list contained approximately 6,500 individual mailing addresses. As described in Chapter 4 of the EA, other consultation activities included:

  • Five PICs
  • Two public workshops and other public meetings
  • Meetings with individual community groups, such as the Ontario Road Ecology Group, Friends of the Farewell and Stop Highways Invest in Feet and Transit (SHIFT)
  • Formation and maintenance of a Community Advisory Group (CAG)
  • The maintenance of a Project website
  • The provision of a dedicated Project phone line/toll free number
  • The provision of a Project office

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 format at specific locations for public comment. The MTO incorporated comments as necessary into the final EA before it was submitted to the 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 regionally and locally distributed newspapers within the study area. Direct mailings of the Notice of Submission were also sent to the individuals on MTO’s mailing list. Approximately, 69 comments were received during the comment period. A few comments were received after the end of the comment period. The comments were forwarded to the MTO for a response.

Most of the comments received expressed concern about the proposed undertaking and its impact on wildlife, the local and regional air shed, hydrogeologic features in the study area, loss of agricultural land and the displacement of privately-owned properties, in general.

Approximately 55 of the submissions received were in the form of a form letter. Approximately, 80 further letters that included the same content were sent to the Minister of Transportation. These form letters, which were individually signed, raised concern with the displacement of a specific property on Rundle Road in the Municipality of Clarington. The letters also indicated a concern with the loss of agricultural lands in general, the impact of the Project on migratory birds, and inconsistencies with the planning of the Project and the 2005 Provincial Policy Statement.

A letter submitted by SHIFT, a coalition of non-government organizations, raised concerns with the EA process and the need and justification of the Project. The letter also raises concern with the Project’s conformity with the Greenbelt Plan, the loss of agricultural land, impacts on groundwater and Species at Risk.

In its submission, SHIFT recommends that the EA be amended to include additional information. The submission further includes a list of conditions which the organization recommends be included as part of any approval granted by the Minister.

Please see Appendix B for a summary of the comments received and the MTO’s response to those comments. A selection of representative public submissions is also included in Appendix C.

Aboriginal community consultation

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, 1982.

In addition to the EAA requirements that interested persons be consulted, the Crown must turn its mind 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.

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 include: Curve Lake First Nation, Mississaugas of Scugog Island, Chippewas of Mnjikaning (Rama), Chippewas of Georgine Island, Chippewas of Beausoleil Island, Hiawatha First Nation, Kawartha Nishnawbe First Nation and Alderville First Nation.

Huron-Wendat First Nation also has been identified as having an interest in the Project study area because of historic occupation and related cultural heritage issues.

Aboriginal communities were contacted at each key point in the Study to advise them of the Study progress and upcoming events. Contact included issuance of letters as well as follow-up phone calls and e-mails. All status updates, letters, newsletters and notices of PICs that were distributed to regulatory agencies, municipalities, stakeholders and the public, were also sent to the Aboriginal communities identified. Copies of the PIC display panels and the recommended design plans were also sent to the Aboriginal communities.

The Huron-Wendat First Nation have expressed an interest in the Project and the EA process and have made a request to the MTO to provide participatory funding and related travel expenses. A request for participatory funding has also been made by the Alderville First Nation. The MTO is reviewing these requests.

Once the final EA was submitted, the 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 is aware of the Huron-Wendat First Nation’s and Alderville First Nation’s continued interested in the EA. The MTO continues to work with the Aboriginal communities to ensure that any concerns they may have are adequately considered.

3.1.3 Conclusion

The EAA requires a proponent to consult interested persons during the preparation of the EA and report on the results of those consultations. The is satisfied that the MTO appropriately followed the consultation plan outlined in the approved ToR. The 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. Discussions with several Aboriginal communities are on-going and the will continue to monitor these discussions. The EA documents the consultation methods used by the MTO to engage all interested persons during the preparation of the EA and 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 potential environmental effects of the alternatives and select a preferred alternative.

According to the approved ToR, the EA would be prepared in accordance with section 6.1(2) of the EAA. Section 6.1(2) of the EAA outlines the generic requirements of the EAA as outlined briefly in the preceding paragraph. In the approved ToR, summaries of the problems and opportunities were given. Determining and addressing long-term transportation deficiencies and needs in the analysis area, which includes the Region of Durham and surrounding communities to the east and west, became the purpose of the EA study.

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
  • Travel Demand Measures (TDM)
  • Transportation Systems Management (TSM)
  • Improved Air Transport Service
  • Improved and/or New Passenger Rail Service
  • Improved and/or New Goods Movement by Rail
  • Improved and/or New Marine Service
  • Improved and/or New Transit Services
  • Improved and/or New Roadways/Transitways
  • Combinations of the Above

After carrying out an inventory and completing a description of the environment, the MTO conducted an analysis of the “alternatives to” based on criteria originally identified in the approved ToR. The preferred “alternative to” was identified as the recommended “alternative to” the undertaking and consists of a combination of travel demand management, transportation systems Management Enhancements and a new transportation corridor including:

  • a freeway connecting the existing terminus of Highway 407 at Brock Road in the City of Pickering to Highway 35/115 in the Municipality of Clarington
  • two north-south freeway connections between Highway 407, as extended and Highway 401
  • a transitway corridor running parallel to the easterly extension of Highway 407 and the two north-south connections to Highway 401

The development, assessment and evaluation of alternative methods occurred in three stages. The first stage involved a refinement of the analysis area, which was used to consider the “alternatives to” the undertaking, to reflect the new east-west and north-south transportation corridors proposed as part of the preferred alternative to the undertaking. A preliminary study area is illustrated in Exhibit 7.2 of the EA.

Using criteria originally identified in the approved ToR and refined early in the EA process, the second stage involved the development and evaluation of a long list of route alternatives at a conceptual level. This long list of route alternatives was then screened using criteria that focussed on minimizing direct loss/effects in significant natural, social and cultural areas and features, by avoiding these features, where possible. In arriving at the short list of alternatives routes, 98 different routes were considered by the MTO.

Following the identification of the final short list of alternatives routes, the MTO confirmed the evaluation criteria, indicators and measures that would be used in the net effects analysis of the short list of alternative routes. The Reasoned Argument method was the primary evaluation method. An arithemetic evaluation method was the secondary method used to confirm the results of the primary. Section 7.4 of the EA provides an overview of the study methodology and evaluation of the short list of alternative routes considered.

The outcome of the net effects assessment was the identification of a Technically Preferred Route (TPR), which is described in Section 7.7 of the EA and shown in Figure 1 above. The TPR is comprised of a 170 metre (m) right-of-way for the transportation corridor, of which 110 m will be used for the proposed highway, while the remaining 60 m are proposed for the use of a future transitway component. Support facilities, including maintenance facilities for the highway and transitway components, commercial vehicle inspection facilities for the highway component and transitway stations have also been identified in the TPR. Highway interchanges have been identified at the majority of major cross roads.

The proposed undertaking involves the protection of lands for the transitway component, including a 60 metre right-of-way on the south side of the east-west highway mainline component and west side of the north-south highway links. Transitway stations have been protected for at the majority of the major crossing road interchanges and have typically been situated in the northwest quadrant of interchanges to maximize the efficiency of transit operations and their potential impact on the highway component. The infrastructure within the transitway and the associated support facilities will be subject to future Class EA studies or the Transit Projects Regulation (Ontario Regulation 231/08), made under the EAA, prior to implementation.

3.2.1 Conclusions

The EA contains an explanation of the problems and opportunities that prompted the study. The MTO considered a reasonable range of “alternatives to” the undertaking and evaluated a range of alternative transportation corridor alignments and design elements in the study area using criteria that considered the EAA’s broad definition of the environment (e.g. including natural, socio-economic, cultural and agricultural environments). The EA provides a description of the affected environment in the study area and identifies the elements of the environment that may be affected, either directly or indirectly, by the alternatives.

The EA further 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, has 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 8 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.

As discussed earlier in this Review, a number of 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 a resolution to the concerns raised has been reached, this too is noted.

A complete summary of the detailed comments and the MTO’s responses to those comments, including the comments not summarized below, is included in Appendix B. Appendix C contains the full text of all the comments that were received.

3.3.1 Key issues

Key issues regarding the EA process completed by the MTO for the 407 East EA were gathered during the pre-submission consultation and the EA review comment period.

A number of issues were raised by the GRT and the public. These submissions can be found in Appendix B. All comments, including the MTO’s responses can be found in Tables 1–3.

Air quality

Comments about the air quality impacts of the Project were made by the and the public.

In response to the comments raised by the MOE, the MTO prepared information to supplement the air quality assessment. The supplementary information is included in Appendix C. The air reviewer has concluded that the additional information addresses the concerns raised. Response to the air quality concerns raised by the public are included in Table 2, Appendix D.

Surface water quality

Comments about potential water quality impacts were made by the and EC.

both the and Environment Canada requested monitoring of water quality, including baseline monitoring, in the proposed stormwater management facilities and study area watercourses, respectively. While the MTO has responded that it is not usually its practice to conduct baseline monitoring, if required by the it can be done. If the proposed undertaking is approved, there will likely be a condition requiring baseline monitoring that should address the concern.

Noise

Comments about noise were made by the MOE.

The reviewer concluded that the noise modelling undertaken to identify the range of potential impacts over the entire study area was satisfactory. The reviewer also concluded that the Noise Impact Assessment satisfactorily identified the areas where further investigation of impacts and noise mitigation through detailed noise modelling was warranted.

The MTO has identified a number of sensitive receptors that will experience increases in ambient levels of noise of greater than 10 decibels (dB) once the highway extension is operational and fully built. Based on information provided by the MOE’s noise reviewer, which can be found in material provided in the MOE’s Environmental Noise: Certificate Course (1998), increases in noise of this magnitude are considered significant and affected sensitive receptors are considered as candidates for mitigation measures.

Under the MTO’s Environmental Guide for Noise (2006), the MTO will consider mitigating noise impacts where it can be demonstrated that the mitigation methods are administratively, economically and technically feasible. Generally, technically feasible means that the mitigation method to be applied must be capable of producing a noise level reduction of at least 5 dB; economically feasible means that the mitigation measures do not exceed a cost of $50,000 to $100,000 per benefited noise receptor; and administratively feasible means that the mitigation measure can be implemented within the transportation corridor right-of-way.

within the framework of the MTO’s Environmental Guide for Noise, it has been determined that there will be fifteen sensitive noise receptors that are expected to experience significant noise impacts, for which the MTO has determined that there are no administratively, technically or economically feasible measures to mitigate the noise impacts. These properties are illustrated in Appendix D and identified as follows:

  • 3790 Paddock Road, City of Pickering
  • 3795 Paddock Road, City of Pickering
  • 3805 Sideline 4, City of Pickering
  • 5655 & 5705 Halls Road, Town of Whitby
  • 6202 Country Lane, Town of Whitby
  • 200 St. Thomas Street, Town of Whitby
  • 210 St. Thomas Street, Town of Whitby
  • 3015 Ritson Road, City of Oshawa
  • 3045 Ritson Road, City of Oshawa
  • 4693 Leask Road, Municipality of Clarington
  • 4695 Leask Road, Municipality of Clarington
  • 5757 Middle Road, Municipality of Clarington
  • 3074 Concession Road 6, Municipality of Clarington
  • 3090 Concession Road 6, Municipality of Clarington
  • 7233 Brown Road, Municipality of Clarington

While the MTO has included the owners of these properties on its Project mailing lists, it is not clear to the whether the property owners are aware of the noise impacts that are likely to occur to their property. The MTO is committed through subsequent design phases to consider and implement additional noise mitigation strategies should they be identified. The encourages the MTO to consult directly with the affected property owners.

Natural environment

Comments about the impact of the East Durham link component of the Project on the natural environment were raised by an area resident and SHIFT.

Concern was specifically raised about how the East-Durham Link component of the proposed undertaking would have an impact on the Harmony-Farewell Iroquois Beach Wetland Complex, which is a Provincially Significant Wetland (PSW). In recognition of the sensitivity of the East-Durham Link study area and that the alignment of the transportation corridor had been selected based on minimizing the impact on the PSW, a workshop with various regulatory agencies, conservation authorities, wetland specialists and the public was held in February 2008. The purpose of the meeting was to identify mitigation measures that would minimize impacts to the PSW, preserve groundwater flow and provided wildlife passage.

As a result of the workshop, the MTO has modified the preliminary design of the East-Durham Link to include a 300 metre long bridge over the PSW with a vertical clearance of three metres. The MNR and GRCA have both indicated their acceptance of the proposed mitigation measures.

Natural heritage

Comments related to mitigating and monitoring of natural heritage features (e.g. plants, animals and fish) were made by the MNR, the conservation authorities and EC.

There are a number of occurrences of Species at Risk in the study area. Of particular note, this project may have impacts on Redside Dace, Butternut trees and Blanding’s Turtle. It is anticipated that a permit under section 17(2) of the Endangered Species Act, 2007 (ESA) will be required for works affecting the aforementioned species. In all cases, permit applications under the ESA must include measures that result in overall benefits to the species.

The MTO has developed a mitigation strategy for impacts on butternut trees and has committed to additional work and consultation with the MNR regarding the impact of the Project on Redside Dace. The presence of a Blanding’s Turtle was noted through the review process by a local resident, but has not been independently confirmed by the MNR or MTO's consultants. If a Blanding’s Turtle is encountered in subsequent design or construction phases, the MTO will contact the MNR to determine the ESA requirements.

Implementation

According to the EA, construction methods and staging were considered at a conceptual level that focussed on determining the constructability of the recommended design. Given the length of the undertaking and the 2031 planning horizon that the need and justification of the Project is based on, construction may proceed in phases, commencing in the west and progressing easterly.

A number of municipalities, including the City of Oshawa, the City of Pickering and the Town of Whitby have requested that the undertaking be constructed in its entirety (versus phasing) and opened as a completed facility and/or that the MTO commit to the construction of key interchanges to coincide with the opening of the facility.

Should approval of the EA be granted, the initial number of lanes to be provided on opening day would be determined through subsequent design phases, as would the opening day interchange requirements and associated ramp terminal intersection requirements. The MTO is committed to constructing only those portions of the transportation corridor where demand warrants.

The determination of key interchange requirements for opening day will take into consideration travel demands, network connectivity and accessibility and adjacent land uses. The MTO is committed to carrying out on-going consultation with municipal and regulatory agency staff, stakeholders and the public through the subsequent design phases.

Municipal infrastructure

A number of municipalities, including the City of Pickering, the City of Oshawa and the Town of Whitby have also expressed concern that the bridge structures crossing the 407 East Project do not provide sufficient width for sidewalks and bike lanes to be included on both sides of the crossing streets.

The decision to design crossing structures with sufficient width to accommodate bike lanes and sidewalks was based on a review of existing and future lands uses, existing cycling plans, current infrastructure, existing MTO policies and discussions with municipalities, as appropriate.

The MTO considered the need for sidewalks and bike lanes in the preliminary design of the undertaking and have protected for these elements at the majority of the 407 East crossing structures. Where bike lanes and/or sidewalks have been protected for, the MTO has agreed to construct the bike lanes and/or sidewalks subject to cost-sharing agreements with the appropriate municipality.

At a minimum, the preliminary design has included bike lanes and sidewalks in accordance with any existing infrastructure already in place and regional and local bike plans, respectively. The MTO has also made efforts to ensure that none of the crossing structures have been designed in such a way that the future addition of bike lanes or sidewalks would be precluded.

The municipalities noted continue to express concern with the financial burden of covering the costs for sidewalks and bike lanes on the structures that only protect for (e.g. are constructed to be sufficiently wide), not include these elements. Concerns with the costs and cost inefficiencies associated with retrofitting bridge structures at a later date to include bikes lanes and sidewalks have also been raised.

In its response to the municipalities that raised these concerns, the MTO has indicated its willingness to provide the additional structure width needed for bike lanes and sidewalks at any additional bridge structures, subject to a request being made and a cost-sharing agreement negotiated. The MTO is also committed to revisiting this issue as part of the subsequent design phases and to consulting further with the municipalities noted.

A number of municipalities, including the Town of Whitby and the Municipality of Clarington have requested that additional interchanges to and from the highway component of the undertaking be included at municipally desirable locations. The MTO has indicated in its responses to these municipalities that interchanges have been included at locations where traffic demands are expected to warrant the additional structures. Additional locations can be considered subject to separate EA studies being completed.

Displacement of privately and municipally-owned/managed properties

If approved, the proposed transportation corridor would displace a number of privately, federally and municipally-owned properties.

The City of Pickering has raised concerns with the potential displacement of municipally-managed recreational facilities that are located on lands leased from Transport Canada (TC). The City has requested that the MTO compensate the City for the loss of the recreational facilities and that MTO secure new lands for the facilities to be relocated. In its response to the City, the MTO has agreed to assist the City in relocating the facilities, but notes that under the terms of the lease agreement with TC, TC reserves the right to terminate the agreement without reason provided advance notice of one year is given. It should be further noted that the City’s lease with TC expires in 2012. The is satisfied with MTO’s response to the City’s concern.

The Municipality of Clarington has raised concern with the loss of designated industrial lands in the Courtice Energy Business Park and the Courtice Industrial Area and the impact of a local road realignment that will be needed as a result of the Project. Clarington is concerned that the loss of these lands will have an impact on the Municipality’s efforts to increase the non-residential portion of its tax base and has requested that the MTO commit to providing a significant financial contribution towards the implementation of road works adjacent to the affected lands. The MTO has agreed to further consider the opportunity to modify the road network at the same time a local road realignment is undertaken. This issue remains outstanding at this time.

The Town of Whitby has raised a concern that the proposed undertaking will displace municipally-owned lands intended for the future use of a hospital or park and have requested that the MTO provide replacement lands for these purposes. This issue will be dealt with through the MTO’s property acquisition process.

As stated earlier, there are still outstanding issues that need to be considered. The decision about whether the undertaking will be approved rests with the Minister and the conclusions of this Review are one of many theings the Minister must consider in making a decision.

3.3.2 Conclusion

The MTO has provided responses to all the comments received, including those not summarized above. An errata sheet has been prepared by the MTO, which corrects minor editorial errors in the EA. The errata sheet is included in Appendix D. Some reviewers have reported back to the that their comments have been adequately addressed and/or further work is required to address issues.

During the period between the publication of this Review and before the Minister makes a decision on the approval of the proposed undertaking, further discussion between the MTO, the and applicable reviewers will be necessary to respond to the remaining issues and provide the appropriate information the Minister needs to make a decision about the EA and the proposed undertaking.

Summary of the ministry review

The Review has explained the ministry’s analysis for the 407 East EA.

This Review concludes that the EA has been prepared in accordance with the EAA. The MTO has described in its EA how alternatives were assessed and evaluated in order to arrive at the preferred alternative. The EA assessed the potential environmental effects of the alternatives and proposed undertaking and provides mitigation and monitoring measures to ensure that the potential negative environmental effects will be minimized.

The Review concludes that the MTO has provided sufficient time and opportunity for the GRT, the public, local municipalities, Aboriginal communities and other interested persons to comment on the preparation of the EA. The is satisfied that the EA clearly documents the consultation methods used by the MTO to engage these groups noted above during the EA process. The MTO’s consultation methods were found to be in accordance with the requirements of the approved ToR and consistent with the MOE’s “Code of Practice: Consultation in Ontario’s Environmental Assessment Process”. The Crown, through the MTO, is committed to on-going consultation with Aboriginal communities throughout the EA process to ensure that any concerns are appropriately addressed.

There are several outstanding issues remaining that still need to be considered. It is normal process for the to seek additional information from proponents about EAs in order to clarify information and potentially identify areas where additional work is warranted. This is part of the process needed to ensure that the Minister has the information that he needs to make an informed decision about the EA and the proposed undertaking.

What happens now

The Review will be made available for a five-week comment period. During this time, all interested parties, including the public, the GRT and Aboriginal communities can submit comments to the ministry about the proposed undertaking, the EA and/or the Ministry Review. At this time, anyone can request that the Minister refer either all or part of the EA to the Environmental Review Tribunal for a hearing if they believe that their concerns have not been addressed.

At the end of the Review comment period, ministry staff will make a recommendation to the Minister about whether the EA has been prepared in accordance with the ToR and the requirements of the EAA and whether the proposed undertaking should be approved. When making a decision, the Minister will consider the purpose of the EAA, the ToR, the EA, the Review, the comments submitted during the EA and the Review comment periods and any other matters the Minister may consider relevant.

The Minister will make one of the following decisions:

  • Give approval to proceed with the undertaking
  • Give approval to proceed with the undertaking subject to conditions
  • Refuse to give approval to proceed with the undertaking

Prior to making that decision, the Minister may also refer either part of or the entire EA to mediation or refer either part of or the entire EA to the Environmental Review Tribunal for a decision.

If the Minister approves, approves with conditions or refuses to give approval to the undertaking, the Lieutenant Governor in Council must concur with the decision.

5.1 Additional approvals required

If EAA approval is granted, the MOE will still require other approvals to design, construct and operate this undertaking. Section 11 of the EA outlines additional approvals that may be required. These approvals may include:

  • Ontario Water Resources Act—Permits to Take Water for use or dewatering during construction.
  • Lakes and Rivers Improvement Act—permits to remove an existing dam from a waterbody may be required.
  • ESA—permits may be required for disturbances to butternut trees and the Redside Dace and their respective habitats. An additional permit to undertaking monitoring of these species and to collect data may also be required.
  • Environmental Protection Act—Certificates of Approval may be required for the potential displacement of lands previously used for waste disposal purposes.
  • Fisheries Act authorization—for harmful alteration, disruption or destruction of fish habitat.
  • Navigable Waters Protection Act—for any work in a navigable channel.

These approvals cannot be issued until approval under the EAA is granted.

Canadian Environmental Assessment Act requirements

There are several “triggers” for an EA under CEAA specific to this undertaking. The triggers include the requirement for federal lands to enable this undertaking to be carried out and the need for the federal government to exercise regulatory duties in relation to the undertaking (i.e. issue a permit or license that is included in the Law List Regulations pursuant to the CEAA). The Project includes triggers that are within the mandate of TC and the Department of Fisheries and Oceans (DFO).

Additional triggers relate to oil and gas pipeline crossings and Canadian National and Canadian Pacific railway crossings, overseen by the National Energy Board (NEB) and the Canadian Transportation Agency (CTA), respectively. In both cases, MTO will work with and negotiate an agreement with the pipeline companies and railway authorities and obtain concurrence from the NEB and CTA to ensure that a formal trigger will not be required. Therefore, these components have not been included in the federal screening.

Based on the authority provided in subsection 17(1) of the CEAA, TC and the DFO have delegated the preparation of the screening report to MTO. The screening report, together with any additional technical studies that are prepared to support it, will be used by the federal departments in assessing the project.

In accordance with the Canada-Ontario Agreement on EA, the provincial and federal EAs are being undertaken concurrently. The CEAA EA process is being coordinated through the Canadian Environmental Assessment Agency while the provincial EA process is being coordinated by the MOE.

although the requirements of both the EAA and CEAA were coordinated during the EA process, two separate but complimentary reports are being prepared. The provincial EA Report addresses the EAA requirements while a separate federal screening report is being prepared and submitted to fulfill the federal EA requirements. Section 10.3 of the EA provides further details about the federal EA process.

Municipal approvals

It is anticipated that a number of municipal approvals may be required from the Region of Durham, City of Pickering, Town of Ajax, Town of Whitby, City of Oshawa and the Municipality of Clarington, including, but not limited to:

  • Tree Removal Permits
  • Noise by-law exemptions
  • Road Occupancy Permits
  • Road closure by-laws
  • Temporary construction access permits
  • Municipal sign by-laws

5.2 Modifying or amending the proposed undertaking

An amendment procedure is outlined in Chapter 12 of the EA. This procedure would be used if the EA is approved and an amendment related to the transportation corridor or the EA is required as a result of information obtained during subsequent design phases. Any unforeseen changes to the Minister approved undertaking will be reviewed by the MTO and/or its agent prior to any changes being carried out. As part of the review, MTO and/or its agent will determine the significance of the change in terms of its potential effect to the environment, a stakeholder (including the public), and/or a commitment made in the EA or a condition of approval.

If the MTO determines that a proposed change is not significant, the change will be documented in a Design and Construction Report and will be made available for public review. For any significant changes, the amending procedure will be consistent with the MTO’s Class Environmental Assessment for Provincial Transportation Facilities, 2000 (Class EA). This will include the preparation of a Transportation Environmental Study Report (TESR) and involve formal public and agency consultation. The “bump-up” provisions in the MTOs Class EA will apply to any changes identified in the TESR, but not the undertaking as identified in the EA, should it be approved.

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

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 Ave West, floor 12A,
Toronto, Ontario

Central Region Office
5775 Yonge Street, 8th floor
Toronto, Ontario

York-Durham District Office
230 Westney Road south, 5th floor
Ajax, Ontario

Proponent/consultant offices

Ministry of Transportation
1201 Wilson Avenue
Building D, 3rd floor
Downsview, Ontario

aecom
300 Water Street
Whitby, Ontario

Municipal offices

Regional Municipality of Durham
Clerks Department
605 Rossland Road East
Whitby, Ontario

City of Pickering, Clerks Department
1 The Esplanade
Pickering, Ontario

Town of Ajax, Clerks Department
65 Harwood Avenue south
Ajax, Ontario

Town of Whitby, Clerks Department
575 Rossland Road East
Whitby, Ontario

City of Oshawa, Clerks Department
50 Centre Street south
Oshawa, Ontario

Municipality of Clarington, Clerks Department
40 Temperance Street
Bowmanville, Ontario

Township of Scugog, Clerks Department
181 Perry Street
Port Perry, Ontario

City of Peterborough, Clerks Department
500 George Street north
Peterborough, Ontario

County of Peterbrough, Clerks Department
470 Water Street
Peterborough, Ontario

Libraries

City of Pickering Public Library, Main Branch
1 The Esplanade
Pickering, Ontario

Ajax Public Library, Main Branch
55 Harwood Avenue south
Ajax, Ontario

Oshawa Public Library, Main Branch
65 Bagot Street
Oshawa, Ontario

Town of Whitby Public Library, Main Branch
405 Dundas Street West
Whitby, Ontario

Municipality of Clarington Library, Newcastle Branch
50 Mill Street north
Newcastle, Ontario

Peterborough Public Library
345 Aylmer Street north
Peterborough, Ontario

Making a submission

A five-week public review period ending January 29, 2010 will follow publication of this Review. During this time, any interested parties can make submissions about the proposed undertaking, the environmental assessment or this Review. Should you wish to make a submission, please send it to:

Director, Environmental Assessment and Approvals Branch
Ministry of the Environment
2 St. Clair Avenue West, floor 12A
Toronto, Ontario
M4V 1L5

  • Fax: 705-745-5382

Re: 407 East Environmental Assessment
Attention: Jeffrey Dea, Project Officer

Under the Freedom of Information and Protection of Privacy Act and the Environmental Assessment Act, unless otherwise stated in the submission, any personal information such as name, address, telephone number and property location included in all submissions become part of the public record files for 1stis matter and can be released if requested.

Appendix A: Environmental Assessment Act requirements

Please contact EAASIBGen@ontario.ca for a copy of Appendix A.

Appendix B: Submissions received during the intial comment period

Please contact EAASIBGen@ontario.ca for a copy of Appendix B.

Appendix C: Supplemental information

Please contact EAASIBGen@ontario.ca for a copy of Appendix C.

Appendix D: Comment summary tables

Please contact EAASIBGen@ontario.ca for a copy of Appendix D.