An important statement of John Bacher’s standing as a preeminent environmentalist:
The St. Catharines Standard
August 23, 2018
Falls development appealed
Letters from ministry never reached council, says environmentalist
This is an aerial view concept drawing showing the pedestrian lifestyle centre proposed for GR (CAN) Investment Co. Ltd.’s development adjacent to Thundering Waters Golf Club in Niagara Falls. – Special to The Niagara Falls Review
An environmentalist is appealing a decision by Niagara Falls city council in support of a controversial $1.5-billion mixed-use development, while councillors who opposed the May 8 decision are crying foul — claiming information from the Ministry of Natural Resources and Forestry was withheld from them.
Longtime Niagara environmentalist John Bacher has filed an appeal with the Local Planning Appeal Tribunal, citing inconsistencies between the city’s official plan amendments and provincial policies concerning provincially significant wetlands and wildlife habitat located at the site of the Riverfront Community development formerly known as Thunder Waters.
Despite the opposition to the official plan amendment, Niagara Falls planning director Alex Herlovitch said there’s still a great deal to do before any work begins on the massive development.
He said the official plan amendment outlines the requirements for any future planning applications, such as rezoning, subdivision, condominium and site plan agreements.
“It’s a policy document that they adopted, and whether it’s this developer or any other developer working on plans in the Riverfront Community, they would have to abide by the rules,” Herlovitch said. “There’s a whole series of further reports, applications and decisions that council will have to make before any shovel goes in the ground.”
Meanwhile, he said the wetlands on the site will not be affected.
“There is no development in the wetlands. Those have all been protected by the amendment that council adopted in May.”
Bacher, however, said official plans provide overall guidance for future development, and should protect environmentally sensitive areas from development rather than finding ways to permit it.
They are intended to address “big issues, like what should be safe for nature and what you can build on,” he said.
“It should be addressed in the official plan stage.”
He was also concerned that two letters regarding the development, sent from the Ministry of Natural Resources and Forestry to city planning staff on Dec. 11 and Jan. 15 were never provided to councillors.
Bacher said he provide councillors with copies of the letters himself, but that was on Aug. 7 — months after council voted 6-2 in favour of the official plan amendments to allow the project to move forward.
Herlovitch said a letter from the MNRF dated April 30 was provided to councillors at the meeting. But he said the previous correspondence was not provided to councillors because it included MNRF concerns about environmental impact studies that had already been addressed.
He said the letters from December and January were written in response to environmental impact studies, and “many of the concerns of those letters were already addressed.”
Herlovitch said remaining concerns were addressed through 27 recommended changes to policies.
Nevertheless, learning about the missing documents came as a shock to Coun. Wayne Campbell, who joined Coun. Carolynn Ioannoni as the only two councillors who voted against the official plan amendment during the May 8 meeting.
“This was, I felt, very important information,” Campbell said. “It’s unbelievable. I was really taken aback.”
Ioannoni said just the information in the MNRF’s April 30 letter was enough for her to oppose the amendment.
Herlovitch dismissed the concerns as politicking.
“It sounds like grandstanding to me by people who wish to be re-elected in October,” he said.
He said the letters from December and January were written in response to environmental impact studies, and “many of the concerns of those letters were already addressed.”
Herlovitch said remaining concerns were addressed through 27 recommended changes to policies that were being presented by the developer.
He said he couldn’t speculate on whether the vote might have been different if council had access to the earlier correspondence.
Coun. Joyce Morocco said the documents likely wouldn’t have changed her mind.
“Based on the information, I don’t believe it would have changed my decision. We can’t land-lock all of that land,” she said.
Morocco said she also made it clear to the developer that if all 27 recommendations are not met, “then don’t bother coming back.”
“It’s really a tough balance when you have people coming in that have invested and bought private land — it’s not that it was city-owned — it was private land and the intention was to develop,” she said.
Environmentalist Owen Bjorgan said the letters list numerous concerns about the development, including the presence of provincially rare vegetation and threatened wildlife.
“The ministry is still saying, for a variety of scientific reasons and concerns, this development is not ready to go through,” he said. “This is the province using real science, attempting to tell Niagara Falls city council about a major land use change.”
Bjorgan, who has been publicly opposed to the project for the past several years, said the MNRF letters point out discrepancies between scientific data and information provided within the developer’s environmental impact study.
Some discrepancies have not been addressed.
For instance, he said the MNFR pointed out that peer-reviewed scientific literature show bat species found in the area “have a very high level of specific site selection,” which contradicts information in the study.
The LPAT Appeal To Rescue Thundering Waters Forest
Dr. John Bacher
At 9:46 am in the Niagara Falls Clerk’s Department I filed a letter of appeal against Amendment 128 to the Niagara Falls Official Plan. The amendment seeks to pave over about 120 acres of the approximately 500 acres Thundering Waters Forest.
Although most of the Thundering Waters Forest is provincially protected wetland barred from development, much of the Amendment 120 lands known as the Riverfront Community are an unusual savanna complex. It is dominated by a native shrub species, the Dotted Hawthorn.
Canada Geese flying over threatened Thundering Waters Forest. Photo by Martin Munoz.
On Hawthorn Savanna lands nests two Species At Risk birds, the Wood Thrush and the Eastern Wood Pewee. It also contains habitat for a spectacular Threatened wildflower, the showy purple Dense Blazing Star. On the savannah flourishes a regionally rare flower loved by butterflies, the blazing orange Butterfly Milkweed. Both iconic wildflowers, characteristic of prairie-savannah environments, are important for insects that are valuable plant pollinators.
The richness in insect pollinators is one of the reasons that the Hawthorn Savannah area, which dominates most of the OP Amendment 128 lands, provides summer foraging habitat for the Threatened Barn Swallow. Other areas of such habitat have vanished because of agricultural pesticides. Here they flourish in a landscape not farmed since World War One.
Potential Bat Roosting Area Thundering Waters Forest Photo by Martin Munoz
Although the Hawthorn Savannah dominates the Amendment 128 lands it also has dry forests. These areas, designated by the Niagara Regional Official Plan as provincially significant woodlands, buffer the protected wetlands of the provincially significant wetland (PSW) of the Niagara Falls Slough Forest. Snapping Turtles, a Species At Risk, are frequently found in the pounded ruts of long abandoned roads throughout the Riverfront lands.
In the northern limits are future study areas for possible bat maternity roosting habitat of three species of Endangered bats.The large block of intact forest is also regarded by the Ministry of Natural Resources and Forestry (MNRF) as breeding habitat for the Endangered Acadian Flycatcher. According to the current recovery plan there are only an estimated 75 pairs of this specie surviving in Canada.
There are three components of the Niagara Falls Slough Forest which are in close proximity to each other near a railway strip. In the spring spectacular symphonies of mating Wood, Chorus and Spring Peeper frogs can be heard here. These frogs and the Blue Spotted Salamander frequently migrate between these components of the Niagara Falls Slough Forest. Amendment 128’s failure to link these wetlands with protective corridors could lead to massive slaughter of wildlife.
The weirdest provision of Amendment 128 is its call for the “deforestation” of provincially significant woodlands. Among the trees found on these lands is a Species At Risk’, the Kentucky Coffee Tree. The massive deforestation is being advocated on the basis of the anticipated effects in two to five years of mass Ash die off from the Emerald Ash Borer. In this regard Niagara Falls is pioneering in a science fiction approach to land use planning.
The protection of Thundering Waters may take up to three Appeals to win the legal battle.
Niagara Regional Official Plan Threatened by Developers’ Junk Science
Dr. John Bacher
The Niagara Region has embarked on a new three year process to develop a new Official Plan. What is most disturbing about this path, likely to ruin, is that it is heavily influenced by a peculiar type of “environmental stakeholder”. These are armies of environmental consultants in the pay of developers.
In the past the Niagara Region had a formally constituted Environmental Advisory Committee, (EAC). This was abolished recently of the grounds that it met infrequently. EAC however, has been in effect replaced by informal consultations with unnamed “environmental stakeholders”. No minutes of the meetings of the “stakeholders” have been taken. Their names are also anonymous.
The anonymous “environmental stakeholders” have been joined with the equally secretive “agricultural stakeholders.” These unnamed persons have not been named. Discussions have by-passed the Niagara Region’s Agricultural Policy and Action Committee. Their members are known. The committee’s deliberations are public and recorded.
What makes the process of developing a new plan so ominous is what the Niagara Region’s Planning Consultant, David Hayworth identified as the number one concern of the “environmental stakeholders.” He did this at a July 5, 2018 presentation to the Niagara Regional Council.
According to Heyworth woodland mapping was “identified as a major concern by many.” One of the issues raised was the process to determine significance or forests facing problems of “die-off from the emerald ash borer.” Heyworth told council that the impacts “of analysis and options for identifying and mapping woodlands” would be highlighted during the development of a new plan.
Currently in its official plan the Niagara Region, using criteria taken from provincial government standards has mapping of what are termed “Environmental Conservation Areas” (ECAs). In these ECA lands there are restrictions which require the development of an Environmental Impact Study before any site alteration can take place. These studies may, according to discretion of the Niagara Regional Planning Director, be subject to a peer review.
A peep into the plans of the “environmental stakeholders” has been given through the work of the Niagara Falls Planning Department, guided by the Savanta, environmental consultants of a developer, GR Canada. They are urging that ECA lands in the Thundering Waters Forest be developed on the grounds that ash die off, by promoting succession from invasive European Buckthorn, will destroy these forests’ ecological significance.
In putting forward their analysis favouring developers’ Niagara Falls planners were helped by the suppression of a December 11 letter from the Ministry of Natural Resources and Forestry, (MNRF), on this issue. Tara McKenna, District Planner for MNRF’s Guelph District, wrote in rebuttal that although such infestations “may result in change of the dominant canopy species but not necessarily the functional value of the woodland. The woodlands are contiguous with existing forested wetland and upland forested areas which contribute to the overall species and structural diversity, size of the larger woodland areas, and the functional linkages between different features.” This analysis based on the view of ecologists working for the provincial public service, contrasts vividly with the junk science put for by employees of developers.
What made the Heyworth’s reliance on anonymous “stakeholders” more irksome was what happened at Niagara Regional Council after its discussion of the new Official Plan. After applauding Heyworth’s presentation based on secretive stakeholders, the majority of the regional councillors condemned criticism of their chief executive officer, Carmen D’ Angelo, which was taken from ten anonymous informants, also anonymous. They were employees of the Niagara Region, and their complaints were made to the newspaper, the St. Catharines Standard. Niagara Falls Regional Councillor Bob Gale, expressed the hope that the Standard would be condemned for the use of anonymous sources, although this approach relying of secret informants was used by the consultant the council had hired to supervise the development of a new official plan.
The bright spot in the grueling August 5, 2018 meeting of Niagara Regional Council was s presentation by a real environmental protection activist, not secretive “stakeholder”, Jean Grandoni. She gave an eloquent plea for the protection of streams from deforestation and illegal dumping. Grandoni pleaded with councillors that, “Fisheries are the FOROTTEN local food supply. Remember that fish are found locally not just in the cottage north country. However, due to a lack of Watershed Plans, illegal dumping, filling in of floodplains by developers, and diversions, much of this local food supply has been lost. We once had pike up to three feet long but with developer encroachment, pike are almost extinct in inland watersheds.”
Reports Suppressed by City of Niagara Falls To Support Destruction of Thundering Waters Forest
Dr. John Bacher
On May 8, 2018 near midnight immediately following a required Statutory Public Meeting under the Planning Act, the Niagara Falls City Council voted to approve what is now termed the Riverfront development. This would if actually approved by the Ontario Land Use Planning Tribunal, (LPAT) involve the destruction of 120 acres of diverse natural habitats, some of which are now protected wetlands.
Absent from the voluminous detail on which the Niagara Falls Planning Department based its recommendations on the city’s website are two letters from the Ministry of Natural Resources and Forestry, (MNRF) These letters from MNRF are dated December 11, 2017 and January 25, 2018. Both were signed by Tara McKenna, Senior Planner for the Guelph District of MNRF.
The MNRF letter from Tara McKenna that was released to council on April 30, 2018 does refer to the suppressed documents. This published letter moreover stresses that this April 30 correspondence does not address all of MNRF’s concerns. This letter stresses that its commentary should be “considered in combination with our previous correspondence.” Both city councillors and the public concerned with the fate of this important Carolinian refuge for endangered wildlife were kept in the dark about what the “previous correspondence” said.
By omitting two MNRF reports through correspondence suppression, the Niagara Falls Planning Director Alex Herlovitch, did not have to address many issues to Niagara Falls City Council. One of these is the threatened habitat of an Endangered species, the Acadian Flycatcher. MNRF also chastised Dougan’s successor Savanta as consultant for GR Canada for failing to look for the Acadian Flycatcher in 2017, where it was earlier located in 2015
Concerns also about protecting Acadian Flycatcher habitat were addressed at length by MNRF in the suppressed correspondence. They do not appear in the final letter which Herlovitch chose to share with the public and the Niagara Falls City Council. This omission permitted GR Canada solicitor, Jane Pepino, to claim that MNRF concerns had been addressed by the City of Niagara Fall and her client.
The Acadian Flycatcher is a highly Endangered species, with at the most 75 breeding pairs surviving in Canada. This is detailed to the most recent, Environment Canada Recovery Plan, which stresses the importance of protecting large blocks of Carolinian forests. If its numbers increased it could play an important role in forest protection, becoming again a significant scale predator of the tree destroying tent caterpillar.
The Endangered Acadian Flycatcher requires large intact forests to survive. This means that the extensive tree removal that Riverfront involves would be a threat to the Canadian population. In Canada the species lives only in the deciduous Carolinian forest zone. It benefits from close proximity to Acadian Flycatchers being close by in the United States. The species however, is in decline in the northern United States also.
In their letter of December 11, 2017 MNRF challenged claims by Savanta that the Acadian Flycatcher was not present for a sufficient length of time ( they suggested three years) for the forest to be considered protected habitat of an endangered species. Here the Ministry stated that based on findings by GR Canada’s former ecological consultants, Dougan Associates, that they “can confirm that Acadian Flycatcher habitat is on site.”
MNRF scolded Savanata for not looking for the Acadian Flycatcher where it was found earlier by Dougan. On December 11, 2017 McKenna told Herlovitch that the area Savanta examined “in 2017 did not include the original location where the male Acadian Flycatcher was identified in 2015. In addition, this species is known to have site fidelity but may not utilize it on an annual basis. As such MNRF is of the opinion that that additional studies carried out have not sufficiently demonstrated an absence of the species on site.”
In response to the approach taken by Savanta MNRF indicated that it would define the habitat area of the Endangered Acadian Flycatcher. This would have excluded development from part of the Riverfront lands. MNRF announced it would do this through procedures established under Section 10 of the Endangered Species Act.
The day after the MNRF letter was received by Herlovitch, Savanta agreed, faced with the prospect of unilateral imposition of a protected area for the Acadian Flycatcher, to provide habitat mapping for MNRF to review. When Savanta’s March 2018 Addendum to their Environmental Impact Study (EIS) came out, there was no mention of the earlier MNRF comments, or of Savanta’s pledge to assist in mapping Acadian Flycatcher habitat after their December 12 meeting with MNRF. The failure to address the habitat of the Endangered Acadian Flycatcher did not provoke public criticism because of the suppression of the MNRF correspondence.
The battles between Savanta and MRNF over the Acadian Flycatcher are similar to another dispute detailed in the suppressed letters over the extent of forest protection in the proposed Riverfront development area. There are on the Riverfront lands a number of blocks of identified provincially significant forests, delineated by the Niagara Regional Official Plan. These are designated as Environmental Conservation Areas. (ECAs) According to the regional plan development cannot take place on these lands unless an approved Environmental Impact Statement (EIS) illustrates that there is no loss of ecological function.
In their EIS studies, Savanta argued that the ECA forests were about to lose their ecological function as native Green Ash proceed to die off from Ash Boer infestation to be replaced with invasive, exotic Buckthorn. A critique of these arguments were spelled out by MNRF in their December 11, 2017 letter. Here McKenna wrote that, the Savanta “EIS seems to suggest that the woodland areas …should not be considered significant because of further canopy decline due to Emerald Ash Boer.”
McKenna found that although, “The potential future decline in ash canopy may change the dominant canopy species but not necessarily the functional value of the woodland. The woodlands are contiguous with existing forested wetlands and upland forested areas which contribute to the overall species and structural diversity, size of the larger wooded areas, and the functional linkages between the different features within the Study Area and beyond.” She further stressed MNRF’s Natural Heritage Reference Manual detailed how despite ash die off impacted forests would continue to provide important ecological functions such as woodland area size and “interior area, linkages, and proximity to other natural heritage features.”
McKenna’s criticism were based on the contents of the original Savanta EIS released when Riverfront was unveiled in October 2017. Although the subsequent Addendum to the Savantat EIS was purported to be a response to comments from MNRF, their earlier criticism of the implications of Buckthorn die off was not acknowledged. This helped Savanta make in this document even more extreme conclusions about the impact of Buckthorn, which were further inflated by Herlovitch.
Herlovitch amplified Savanta’s comments on the Buckthorn issue in his May 8, 2018 report to Niaara Falls City Council. He wrote that Savanta’s “EIS has demonstrated that woodlands within the subject lands while currently meeting the Region’s criteria for significance, will lose their significance within two to five years due to losses resulting from Emerald Ash Borer and Dutch Elm Disease. These trees will be replaced, if left unchecked, with invasive species such as Buckthorn. At this point the woodlands will be no longer considered significant.”
By suppressing MNRF’s comments on Ash Die Off Herlovitch was able to engineer a science fiction approach to land use planning guided by Savantat. The suppression also helped him to craft Condition 11 of his recommendations, which so far, by its ambiguity, has prevented any appeal to the LPAT of council’s decision. This calls for future studies to produce “maps illustrating the areas recommended for woodland removal.” The entire premise of this recommendation is based on a trick which endorses the science fiction approach of Savanta through burying the contrary views of MNRF.
These suppressed December 11, 2017 comments by MNRF also dealt with another issue subsequently ignored by Savanta and their draft EIS . This is that much of the proposed Riverfront lands north of the Con Rail Drain are old growth forests. McKenna pointed out that earlier EIS work by Dougan had found that “old growth forest elements” were located here. The old growth nature of the forests here also meant that they should be considered to be provincially Significant Wildlife Habitat.
McKenna further stressed that the omission of old growth forest recognition reflected questionable changes that Savantat had made from Dougan’s original Ecological Land Classification (ELC) mapping. She pointed out that “MNRF staff would appreciate clarification on how this was carried out and if there are any data sheets showing that it has been remapped. It appears that a combination of Ontario Wetland Evaluation System mapping and ELC have been used to make a new map.”
In his report to council Herlovitch did recommend much of the protection for potential bat habitat in Riverfront based on the April 30, 2018 MNRF comments which were released. He did not address however, the reality that these areas are within the same old growth forest tract identified by MNRF in their earlier December 11, 2017 comments. These areas moreover, requiring a lot of oak, maple and hickory trees for bat roosting to take place, are not vulnerable to forest canopy loss from ash die off.
Since MNRF’s concerns about bats were extensively addressed in the published April 30th letter, some of their comments were adopted into the May 8, 2018 report by Herlovitch. The main impact was to designate the formerly protected Wetland Number One as a Special Policy Area because of its potential significance as a bat maternity roosting area. This did not include however, all of the potential bat habitat, even that mapped by Savanta in Figure 13 of their EIS Addendum.
Savanta’s EIS Addendum shows an area of potential bat habitat west of an abandoned rail line at the northern edge of Riverfront. This is part of the area identified as Old Growth Forest by MNRF in their December 11, 2018 letter. In their later January 15, 2018 letter, MNRF requested that a detailed snag density study be published as a prelude to bat monitoring. This was not undertaken, although such snags, (dead trees) are often found in Old Growth areas.
In his May 8, 2018 report to council Herlovitch made a detailed list of currently ECA protected forests. In his report there was a map which listed “woodlands to be removed (due to loss of canopy:”. The report has a red line going from this map legend to the doomed forests. One of these doomed forests was identified by MNRF’s December 11, 2017 as being old growth. It was also identified in Savanta’s EIS as candidate bat roosting habitat. To meet this criteria the old growth forest would have to have a lot of old oak, hickory and maple trees. These are conditions which would prevent canopy loss from Emerald Ash Boer predation.
The two suppressed letters from MNRF also contained important comments on the significance of a threatened moist prairie-savannah species, Dense Blazing Star. Although since the issue of its habitat protection was addressed in the published April 30, 2018 from MNRF letter, the unpublished documents refuted claims by Savanta that MNRF regarded the species as an artificially introduced population.
On December 11, 2017 MNRF wrote that Savanta’s approach to the Dense Blazing Star as not native to Niagara “is not consistent with the Endangered Species Act.” They requested that the habitat “be mapped and submitted to MNRF.” This still has not been done by Savanta. Although it claims to have excluded the Dense Blazing Star from the development area, the version of Amendment 117 approved by Niagara Falls City Council on May 8, 2018, still has an arrow for a future road going through where the population is located.
Basically what two blocked MNRF letters reveal is what reasonably environmentally concerned people, aware of the precious bio-diversity of Carolinian forests would have known all along. This is that cutting up large blocks of native deciduous forest is fatal to species diversity. It also shows that claims to legitimate these assaults based on the triumph of Buckthorn are junk version of science fiction.
Drama Over Provincial Land Use Planning Will Persist
Dr. John Bacher
In an otherwise flawless election campaign, the Progressive Conservatives under Doug Ford made the questionable suggestion of weakening the Greenbelt. However, the looming threats to the Ontario Greenbelt masked a seldom discussed issue: provincial land use planning. Since its inception in 1969, the use of provincial land use planning as an instrument to protect wildlife was approached with caution. MPP Jim Bradley came to be one of the longest serving members of the provincial legislature due to his ambitions to put substance over partisanship. In fact, he was the only Liberal Party caucus member to oppose the dissolution of the Niagara Escarpment Act in 1977.
At its core, provincial land use planning is a complex contest between politicians, public servants, developers, various public and private sector stakeholders, and, of course, environmentally concerned citizens and advocacy groups. In our opinion, it should be a high stakes event, more noteworthy than any televised program. Unfortunately, it suffers from low ratings encouraged by poor media coverage. With that being said, it’s important to recognize that it’s more than the attitudes of politicians and public servants that contribute to provincial land use planning. Above all, it’s everyday citizens who care about the earth that can have the largest impact in environmental policymaking. This cannot be better illustrated than in the case of the Oak Ridges Moraine Plan, (link is external) passed during the Harris Government.
Environmental groups had previously attempted and failed to persuade the preceding NDP-run government to bring about similar legislation. In its first term the Harris government, amidst rolling back many of NDP’s planning reforms, was similarly apprehensive. Eventually, prevalent public mobilization caused it to embrace provincial land use planning. As a result, a ten year moratorium on any urban boundary expansions was imposed as part of the Oak Ridges Moraine Plan. Through Greenbelt initiatives over the years, Ontario Liberals led by Premier Dalton McGinty turned Harris’ 10-year Moraine freeze into a 14-year one. Unfortunately, recent changes in the legislation surrounding the Greenbelt has shown that ice is thawing.
Ford was able to propose weakening the Greenbelt legislature with such ease because it has, in reality, already been partially undermined. Apart from the Niagara Fruit Belt, Holland Marsh, and the Niagara Escarpment, most of what the Greenbelt Plan calls “protected countryside” is much less protected than before. Now, apart from the aforementioned areas and what are termed “specialty croplands” or “natural heritage areas”, urban expansions are to be considered by upper and single tier municipalities as part of their normal five year reviews. This means that we need to be vigilant in monitoring municipal plans and oppose inappropriate urban expansion propositions. Sierra Club asks you, the people, to share the reins in the fight for a greener future – find out more about provincial land use planning here.
Original article was written by Dr. John Bacher, Chair and Greenbelt Campaign leader at Sierra Club Ontario.
Red Oiser Dogwood, a Mink, Wood Frogs, Chorus of the Western Chorus Frog, Spring Peeper and a Pin Oak all make a timely appearance in this tour of Provincially significant wetlands of Thundering Waters Forest, Niagara Falls, Ontario. This 500 acre Old Growth Forest and Hawthorn Savannah is a rich habitat and cultural gem that should become a Provincial Park for endangered and at risk