Lake Ontario Waterkeeper became concerned about the future of the Toronto Harbour when the Port Authority announced it wanted to build a bridge to the Toronto Island Airport. The bridge would help to expand airport activities - something that alarmed area residents. The bridge would also create a navigation problem for the many sailors, boaters, and tour boat companies that rely on the Western Gap to enter and exit the harbour.
We read the environmental assessment reports and found serious problems with the project. We also found the decision-making process to be flawed. This letter relays our concerns to the Toronto Port Authority.
July 28, 2003
"Fixed Link Bridge Environmental Assessment" Attn. Lisa Raitt Toronto Port Authority 60 Harbour Street Toronto, Ontario M5J 1B7s firstname.lastname@example.org
RE: Comment on June 2003 Draft EA
Dear Ms. Raitt,
Please find attached Lake Ontario Waterkeeper's comments on the June 2003 Draft EA for the construction of a fixed link to the Toronto City Centre Airport. As you will note from our comments, we have a number of concerns regarding compliance with the Canadian Environmental Assessment Act and data which is either outdated or missing in the June 2003 Draft EA.
We would appreciate your response to these concerns prior to the completion of the screening report. As you are likely aware, Lake Ontario Waterkeeper has yet to receive any feedback on our comments submitted earlier this year.
Given the extensive public concern surrounding this project, Lake Ontario Waterkeeper would also request that you refer this assessment to an independent panel or mediator for review.
If you have any questions or require any clarification on the points outlined below, please do not hesitate to contact us.
A. DUE PROCESS, COMPLIANCE WITH CEAA
Since May 2003, Lake Ontario Waterkeeper has monitored and commented on the environmental assessment process for the construction of a fixed link to the Toronto City Centre Airport (TCCA). We are concerned by three breaches of due process:
i) failure by the responsible authority to maintain a public registry
ii) failure by the responsible authority to consider public comments submitted in accordance with the Canadian Environmental Assessment Act (CEAA)
iii) failure to identify responsible authorities.
i) The Public Registry
Section 55 of the Canadian Environmental Assessment Act clearly outlines the requirements of the responsible authority in maintaining a public registry:
55. (1) For the purpose of facilitating public access to records relating to environmental assessments, a public registry shall be established and operated in a manner to ensure convenient public access to the registry and in accordance with this Act and the regulations in respect of every project for which an environmental assessment is conducted.
(2) The public registry in respect of a project shall be maintained (a) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the project is completed; ?
(3) Subject to subsection (4), a public registry shall contain all records produced, collected, or submitted with respect to the environmental assessment of the project, including
(a) any report relating to the assessment;
(b) any comments filed by the public in relation to the assessment;
(c) any records prepared by the responsible authority for the purposes of section 38;
(d) any records produced as the result of the implementation of any follow-up program;
(e) any terms of reference for a mediation or a panel review; and
(f) any documents requiring mitigation measures to be implemented.
(4) A public registry shall contain a record referred to in subsection (3) if the record falls within one of the following categories:
(a) records that have otherwise been made available to the public in carrying out the assessment pursuant to this Act and any additional records that have otherwise been made publicly available;
(b) any record or part of a record that the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency's control, determines would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record comes under its control, including any record that would be disclosed in the public interest pursuant to subsection 20(6) of that Act; and
(c) any record or part of a record, except a record or part containing third party information, if the responsible authority, in the case of a record under the responsible authority's control, or the Minister, in the case of a record under the Agency's control, believes on reasonable grounds that its disclosure would be in the public interest because it is required in order for the public to participate effectively in the assessment.
When Lake Ontario Waterkeeper visited the Toronto Port Authority offices on June 4, 2003, an incomplete list of documents available was photocopied for us. When Lake Ontario Waterkeeper revisited the Toronto Port Authority offices on July 24, 2003, we were told that the registry had not changed since the preliminary draft had been issued in May.
This statement is surprising, given the new information contained in the June draft EA. It is also disturbing that a complete, original record of public comments has not been made available through the registry.
Until the responsible authority establishes a public registry in compliance with s. 55 of the CEAA, it would appear that this environmental assessment has been conducted in error of law.
While this compliance issue may be easily addressed, Lake Ontario Waterkeeper must point out that the lack of compliance to date has made meaningful public comment difficult. S. 18.(3) provides the public with the opportunity to comment on any record filed in the registry; since a complete registry has not yet been created, the public has not yet had a fair opportunity for review and comment.
Lake Ontario Waterkeeper therefore requests that a complete public registry be created immediately, and that the public comment period be extended to allow meaningful review and comment on registry documents.
1. Will an accurate public registry be established?
2. Will the public be given the opportunity to review and comment on the documents in the public registry?
3. Can the EA be approved if a complete public registry has not been maintained?
4. In particular, where is the LGL Limited report on birds, referred to in the June 2003 Draft EA Report? (29)
ii) Insufficient consideration of public comment
Following the release of the May 2003 Draft Preliminary EA, the responsible authority granted the public two weeks to provide comment. Many of these comments were summarized and addressed with the release of the June 2003 Draft EA.
Unfortunately, not one single comment submitted by Lake Ontario Waterkeeper in accordance with the CEAA was answered. To each question or request, the responsible authority replied, ?Response to be provided,? with one exception: ?This request is under consideration? (Dillon Consulting, Appendix I 40-41). No response has been provided to date.
Legitimate expectations existed that public comment would be considered: the responsible authority encouraged public participation under s. 18(3); further, in personal correspondence, Toronto Port Authority?s CEO wrote to Waterkeeper, ?We look forward to receiving any comments you may have? (Raitt 2)
By failing to consider public comment in the June 2003 Draft EA, the responsible authority fails to follow due process or to comply with its duties under s. 16(1)(c). It would appear that the EA has been conducted in error of law for these reasons.
1. Will the project proponent respond to public comments before declaring the EA complete?
2. Can the EA be approved if public comments remain unaddressed?
3. The Project Schedule identified in the June 2003 Draft EA suggests that construction of the fixed link will begin in fall of 2003 for commissioning in fall 2004 (72). Will the proponent consider amending this schedule in order to fully address public concern and comment?
4. Will the proponent request that the Minister of Environment refer this project to a review by mediator or panel?
iii) Responsible authorities
When the May 2003 Draft Preliminary EA was released, no federal responsible authorities other than the proponent had been identified. The project notification, updated June 26, 2003, confirms that there are no additional federal authorities in relation to the current EA:
The Federal Responsible Authorities and Federal Authorities for the earlier EA of this project were Transport Canada, Department of Fisheries and Oceans (including the Canadian Coast Guard), Public Works and Government Services Canada and Environment Canada. These parties, as well as the Canadian Environmental Assessment Agency are providing input into this EA (Toronto Port Authority).
This is a source of concern, given that the construction of the fixed link requires authorizations under the Navigable Waters Protection Act and Fisheries Act. The Department of Fisheries and Oceans, which issues these approvals, should be a responsible authority under s. 11(1) of the CEAA:
11. (1) Where an environmental assessment of a project is required, the federal authority referred to in section 5 in relation to the project shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made, and shall be referred to in this Act as the responsible authority in relation to the project.
A responsible authority ? as federal agencies are likely aware ? has a greater duty in the EA process than merely to ?provide input?. There are a number of responsibilities outlined in ?The Responsible Authority?s Guide,? which DFO could have undertaken in order to ensure a fair process (Canadian Environmental Assessment Agency Part I):
a) establish and maintain the public registry
b) request that the Minister of the Environment refer the project to a review by mediator or panel
c) accurately determine the scope of the EA
d) make a determination on the impact of the project
Should the fixed link project be approved, responsible authorities would also be charged with ensuring that all appropriate mitigation measures and follow-up programs are implemented.
It is not entirely clear that the project proponent is in a position to truly represent the interest of the general public, given that the land-use and business decisions of the Toronto Port Authority are largely dictated by requirements under the Canada Marine Act and in its Letters Patent. The appointment of additional responsible authorities could have provided the process with much-needed independence and accountability.
1. Will any responsible authorities be named?
2. Will those authorities address public concerns and/or respond to public comment?
3. Can this EA be approved if no additional responsible authorities are named?
B. PROJECT DESCRIPTION
Lake Ontario Waterkeeper understands from Preparing Project Descriptions under the Canadian Environmental Assessment Act that a project description is not a document intended for public consumption and that it is not to be included in the public registry. (Canadian Environmental Assessment Agency). For the purposes of this comment, Waterkeeper will refer to the less formal project description as indicated in the Project Notification:
The TPA proposes to construct and operate a fixed link to be built from the foot of Bathurst Street in Toronto across the 122 metre Western Channel to the Toronto City Centre Airport to address safety issues arising from inadequacy of ferry service to respond to emergency situations (emphasis added) (Toronto Port Authority).
We are concerned that this description is misleading and that, as a result, the scope of the environmental assessment has been too limited. Numerous reports and public statements from the project proponent confirm that financial viability of the TCCA is a key motivation for the construction of a fixed link. It is clear that the expansion, or at the very least, the continued operation of the TCCA, is a very real outcome of the fixed link construction.
While it may appear to be an inconsequential matter at this point in the assessment process, the project description identifies the need for the project. In theory, this need is then supported and defended in the draft and public comment process. By omitting the bridge?s role in sustaining the TCCA, the project proponent successfully avoids defending the operation of the Toronto Island Airport in a public forum. The issue of supporting the airport is explored in depth in the ?cumulative impacts? section of this comment.
1. Would the project proponent revise the project description in order to accurately reflect the purpose of the project?
C. PROJECT NEED
The Canadian Environmental Assessment Agency defines "need for" as, "the problem or opportunity the project is intending to solve or satisfy. That is, "need for" establishes the fundamental rationale for the project (Addressing "Need for", "Purpose of" "Alternatives to" and "Alternative Means" under the Canadian Environmental Assessment Act).
The June 2003 Draft EA does not explain the need for the construction of the fixed link. While this is not required in a screening report under CEAA, it is encouraged by the Canadian Environmental Assessment Agency especially for larger, complex projects. Given that the 1998 EA report included a project justification, it would appear that earlier project proponents felt a need for statement was important for this environmental assessment process.
By referring to the project description and 1998 TCCA Fixed Link EA, we can infer that the purpose of the construction of the fixed link is to provide access to the TCCA for emergency vehicles and for the financial viability of the TCCA (ie, to eliminate the money-losing ferry).
The 1998 EA document refers to a 1996 simulation exercise, Operation Pancake, which demonstrated that emergency response times were inadequate. The document also states that these simulation exercises are undertaken every two years (7). If this is the case, there will have been approximately three additional simulation exercises since Operation Pancake. The findings of these exercises are not included in the 2003 draft environmental assessment. Considerations of the new Toronto EMS Marine Unit (which has successfully saved pilots) and the new Toronto Fire Station #334 are also not included in the updated 2003 draft EA.
In the Project Justification for the 1998 TCCA Fixed Link EA, concerns about the loss of a subsidy for the ferry are also noted. According to the document, the ferry was operating at a loss of approximately $500,000-$600,000 per year without the subsidy. This need appears to have been omitted from the 2003 draft EA (8).
The true function of the fixed link is not simply to provide emergency access to the TCCA, but rather to attempt the creation of a safer and financially viable airport. It is Waterkeeper?s position that the need for the construction of the fixed link in 2003 should be clearly defined, carefully considered, and subject to public review.
Questions: 1. Will the project proponent include an updated and accurate review of the need for this project?
2. Is an environmental screening report based on a misleading project need a valid environmental assessment under CEAA?
D. CUMULATIVE ENVIRONMENTAL EFFECTS
S. 16(1)(a) of the CEAA states that every screening shall include a consideration of any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that will be carried out.
The 1998 TCCA Fixed Link EA limits the study of environmental effects to the construction and operation of the fixed link. The June 2003 Draft EA expands the study to include some of the potential effects of an expanded airport. To date, there has been no study of the environmental effects of continued operations of the TCCA.
Given that the current ferry system has been deemed too costly, and the current emergency response system inadequate, it is clear that the construction of a fixed link is intended to secure the future of the TCCA: One of the direct consequences of the construction of the fixed link is that an airport will operate on Toronto Island for many years to come, just metres from Lake Ontario and toronto's downtown core.
It is concerning, therefore, that no consideration of the environmental effects of operating the TCCA have been included in the environmental assessment.
It is understandable that the expansion of the TCCA ? which has been granted cursory examination in the 2003 draft EA ? requires some speculation and educated projection to assess. There is no reason, however, that real data for current operations of the TCCA have not been used in the environmental assessment. This is an issue which Waterkeeper also raised in our comment on the May 2003 Draft Preliminary EA.
The possibility exists that TCCA is a great source of pollution to toronto's waterfront: no data has been presented to confirm or deny this. The fixed link is intended so ensure the TCCA continues operating, yet no information has been presented to assess whether or not this would be of benefit to the waterfront community.
Lake Ontario Waterkeeper has also identified a number of specific potential environmental effects which have not been canvassed in the June 2003 Draft EA and for which real data should exist:
i) Migratory birds
ii) Stormwater, lake water quality
iii) Property value impacts
iv) Barriers to public access
i) Migratory birds
The June 2003 Draft EA suggests that there are no feeding areas in the Western Gap of ?essential importance? to birds (55). Even if it is true that the construction of a bridge will not prohibit birds from feeding elsewhere in the Toronto Harbour, the assessment does not address potential cumulative impacts of the elimination of one more feeding zone in an already degraded and busy harbour. By eliminating feeding areas, we are moving away from Remedial Action Plan goals, rather than meeting them.
In addition to information about feeding zones, the screening documents contain information about ?nuisance birds? at the TCCA (Dillon 1999, 18). It became apparent that this data may be dated when the Toronto Star published an article on July 17 with new figures on bird collisions at the TCCA (Josey). Since new data exists, it seems logical that it should have been included in the environmental assessment.
It is stated in the Fish Habitat Compensation Plan that ?the additional contamination of salt and contaminants in the runoff from the bridge will be negligible in proportion to the total amount flowing into the harbour from city streets through the existing storm sewer system? (14).
This analysis is confusing at best. Our understanding of cumulative effects does not suggest that environmental effects are negligible if other projects in the vicinity are also polluting. In fact, our understanding of cumulative impacts suggests that, when the proponent believes its project will contribute to an existing environmental problem, that proponent has a duty to mitigate negative impacts.
As part of an agreement with the City of Toronto, the Toronto Port Authority also agreed to submit a stormwater management plan for the airport. No such plan has been included in the environmental assessment. Further questions about stormwater control were submitted in response to the May 2003 Draft Preliminary EA and have yet to be addressed.
iii) Property value impacts
Many of the new residents in the vicinity of the TCCA made investments in waterfront property with the understanding that the Port Authority, the City of Toronto, and Transport Canada had entered into an agreement restricting noise levels, aircraft, and specifically barring the construction of a fixed link (the Tripartite Agreement).
Now that the Port Authority intends to construct a fixed link and to increase flight traffic at the TCCA, what efforts have been made to assess the impacts these activities will have on property value? What efforts have been made (or will be made) to compensate TCCA?s neighbours?
iv) Barrier to public access
While many of toronto's beaches have a reputation for poor water quality, the beaches off of the Toronto Island are rarely closed. They are, in fact, the cleanest beaches in downtown Toronto and on par with the City?s flagship, Clark (Cherry) Beach (Lake Ontario Waterkeeper). Hanlan?s Beach, which boasts natural sand dunes and a fantastic view of the lake, is one of the greatest swimming spots on Lake Ontario. Unfortunately, the location of the TCCA means the public must travel a far greater distance by ferry and then by land to access this beach.
As the City of Toronto develops clean beach programs and invests in tourism, how will the continued operations of the TCCA affect the public?s right to access our waterfront? Will the operation of the airport limit the development of other beneficial uses? Is it clear that the continued operation of the TCCA on the Toronto Island is the best use of such valuable waterfront land?
Cumulative effects of a development project are not limited to emissions or discharges. If the construction of the fixed link and the operation of the TCCA provides a barrier to cleaning up toronto's waterfront and limits public access to valuable public resources, this, too, is a negative cumulative effect. There has been no analysis of this kind in the environmental assessment process.
1. Will the proponent release information regarding contaminant loadings to air and water from the TCCA?
2. Will updated data on the ?nuisance bird? issue be included in the environmental assessment?
3. Will the stormwater management plan for the TCCA be included in the environmental assessment?
4. What efforts have been made to assess impacts on property value?
5. Will any compensation be available for people whose property values are negatively impacted by the airport?
6. How will construction of the fixed link limit or enhance beneficial uses of the Toronto Island?
E. OTHER MATTERS
1. Will the construction or operation of the fixed link impact water flow or water levels in the Western Gap?
2. Will the construction or operation affect ice development in the Western Gap?
3. Will ice in the Western Gap be broken during winter months? Will the formation or breaking of ice affect birds or fish in any way?
4. The Project Notification indicates that input has been provided by Transport Canada, Department of Fisheries and Oceans, Public Works and Government Services Canada and Environment Canada. Will comments and suggestions put forth by these agencies be made available to the public?
F. PREVIOUSLY UNADDRESSED COMMENTS
The June 2003 Draft EA included updated and expanded sections on environmental effects. Some of the information which we noted was missing from the May 2003 Draft Preliminary EA was added to the June 2003 Draft EA. To clarify, the following questions submitted June 6, 2003 have not yet been answered:
1. What monitoring program will be implemented to evaluate actual effects on migratory birds?
POTENTIAL EFFECTS OF INCREASED AIR TRAFFIC
1. This analysis appears to account only for air and emissions related impacts. Have the potential effects of increased air traffic on water quality, wildlife habitat, and migratory birds been considered? Will such data be included in the revised TCCA Fixed Link Environmental Assessment?
2. Will more detailed and accurate baseline information regarding fueling, de-icing, and snow removal activities be included in the revised TCCA Fixed Link Environmental Assessment? In order to accurately assess whether airport expansion and/or operation poses a threat to the environment, we must understand the quantity of contaminants used during TCCA activities and the effectiveness of the mitigation procedures.
3. Does the TCCA pay the City of Toronto ? directly or through taxes ? for the treatment of its stormwater?
4. In the event that the City of Toronto is not able to adequately treat TCCA stormwater, how will the TCCA ensure contaminated wastewater does not enter Lake Ontario?
5. What monitoring program is in place to ensure that TCCA wastewater is being adequately treated?
6. The statement that the impacts of runoff from the Fixed Link are ?unavoidable and cannot be mitigated? raises numerous concerns. What analysis was undertaken which supports this claim? What alternatives or mitigation measures were explored before arriving at this conclusion?
7. What work has been done to evaluate the potential impacts of runoff from construction and operation of the Fixed Link, as it relates to existing runoff issues in the area?
8. What work has been done to assess the potential impacts of runoff from construction and operation of the Fixed Link as they may impact goals and objectives set out in the City of toronto's Wet Weather Flow Management Master Plan?
9. Why does the TCCA Fixed Link Environmental Assessment Draft (2003) justify runoff on the grounds that there is a large volume of water in Lake Ontario?
10. Does the Toronto Port Authority suggest the provincial policies and water quality objectives do not apply in the Toronto Harbour?
11. How does the construction and operation of the Fixed Link contribute to the upgrading of water quality in the vicinity of the TCCA?
12. Where is the aquatic environment and water quality baseline report?
FISH AND FISH HABITAT
14. What has been done to update the fisheries data?
15. What considerations have been made for the protection of the Spadina Quay Wetland, which was completed after the previous Fixed Link environmental assessment and after the fisheries research used in both the 1999 and the 2003 Fixed Link environmental assessments?
WILDLIFE HABITAT, GENERAL
16. What are the grounds for the statement that the region is ?not highly valued wildlife habitat??
TERMS OF REFERENCE, RELATED REGULATIONS
18. The terms of reference for the commissioning of the TCCA Fixed Link Environmental Assessment Draft (2003) do not appear to be included. Have those been made available to the public?
19. Would it be possible to include a list of the required permits, applicable laws and regulations, etc. in the forthcoming TCCA Fixed Link Environmental Assessment (2003)? This would help facilitate public involvement in the assessment process.
Canadian Environmental Assessment Act, 1992.
Canadian Environmental Assessment Agency. Addressing "Need for", "Purpose of" "Alternatives to" and "Alternative Means" under the Canadian Environmental Assessment Act. Operational Policy Statement, October 1998.
Canadian Environmental Assessment Agency. Preparing Project Descriptions Under the Canadian Environmental Assessment Act. Operational Policy Statement, August 2000. < http://www.ceaa.gc.ca/0011/0002/ops_ppd_e.htm>
Canadian Environmental Assessment Agency. Responsible Authority?s Guide.
Corporation of the City of Toronto, Toronto Harbour Commissioners, Minister of Transport. ?Tripartite Agreement.? June 30, 1983.
Dillon Consulting. Appendix H: Fish Habitat Compensation Plan Report. Toronto Port Authority, June 2003.
Dillon Consulting. Appendix I: Public Comments and Responses. Toronto Port Authority, June 2003.
Dillon Consulting. Environmental Assessments Addendum. Toronto Port Authority, January 1999.
Dillon Consulting. Fixed Link to the TCCA, Environmental Assessment. Toronto Port Authority, 1998.
Dillon Consulting. Proposed Fixed Link Bridge to the TCCA, Draft EA Report. Toronto Port Authority, June 2003.
Dillon Consulting. Proposed Fixed Link Bridge to the TCCA, Draft Preliminary EA Report. Toronto Port Authority, May 2003.
Josey, Stan. ?Airport study takes aim at geese.? The Toronto Star. July 17, 2003. < http://www.torontostar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&call_pageid=971358637177&c=Article&cid=1058393418626>
Lake Ontario Waterkeeper. Daily beach closures record. June-July 2003.
Raitt, Lisa. Re: Request for amendment to Fixed Link EA review schedule. Letter to Krystyn Tully. June 2, 2003.
Toronto Port Authority. Project Notification. Web site form. June 26, 2003.
Tully, Krystyn. Comment on May 2003 Draft Preliminary EA Report. Lake Ontario Waterkeeper, June 6, 2003.