Hansard excerpt (8): Ontario Society of Professional Engineers presentation at Oct. 17, 2017 OMB Reform hearing

This post features an excerpt from the Hansard transcript of the Oct. 17, 2017 OMB Reform hearing at Queen’s Park.

My notes of the above-noted hearing are featured at a previous post entitled:

Oakville mayor, Mississauga deputy city solicitor, and former Toronto chief planner speak out at Oct. 17, 2017 OMB Review hearing

In the text below, I begin with my own notes, after which I conclude with the Hansard transcript, of the presentation by the Ontario Society of Professional Engineers.

Please note: I have posted the text in adherence to the Copyright provisions regarding Hansard texts.

A previous post features the following overview of the Ontario Society of Professional Engineers presentation

At 5:20 p.m., Patrick Sackville, Lead, Policy and Government Relations, Ontario Society of Professional Engineers.

Robert J. Muir, Manager of Stormwater, Environmental Services, City of Markham, also spoke.

Sackville speaks of an engineering-profession view regarding Bill 139. We recognize the need for help, with regard to land use, he notes. But we have problems, he adds. Says Bill may compound or exacerbate several problems.

Muir speaks of a fourth attempt, since 2003, to address the land-use planning regime. This is the most far-reaching attempt. Shares analysis “through the lens of the engineering profession.”

Refers to “true cost of resiliency.”

Speaks of need to maintain a balance regarding “conservation versus restoration.”

Says sometimes it is advisable to interfere with natural features. Refers to inefficient land use.

Says Bill 139 does not create clarity regarding Conservation Authority interference in land-use cases. Refers to things that have to do with water. Expresses concern Conservation Authorities would have important [monopoly] over land-use decisions.

Refers to reduction in Permitting requirements – contrasts latter to a Federal Fish Act.

Says greater resiliency means greater costs.

Refers to climate change. Says Green Infrastructure implementation costs could amount to hundreds of billions of dollars. Notes Conservation Authorities are not responsible for these Capital Costs. Says Homeowners and Taxpayers must pay the costs. That in turn, he adds, does not help transit and housing including affordable housing.

Q: You refer to unintended consequences.

A: An example is with regard to climate resiliency, which gives rise to promotion of Green Infrastructure. Consider the impact on existing structures, and the interference with existing water supplies.

Says we have to have balance to recognize potential impacts of resiliency – including long-term [infrastructure] maintenance, and Financial Planning aspects.

Q: Refers to a concern regarding an increase in Conservation Authority powers.

A: It’s a matter of how powers are applied. Consider, for example, a low-water headwater swale. Urges caution regarding over-regulaton: Think of the potential impacts. Refers to inefficient built form and transportation.

Q: Consider the Ministry of Natural Resources and Forestry and the Conservation Authorities: Do you see differences?

A: Municipal and riverine flood management integration is required. Lake flooding is related to an operational concern. Conservation Authorities can help with regard to proactive management of water levels. Or what you could be dealing with, at times, is a natural fluctuation.

Q: What benefits are there, with regard to climate change responses?

A: It’s in the old places – that’s where flooding occurs. Only half of the flooding is in the river areas. You have to focus outside the Conservation Authority areas and outside the new developments. It’s more a matter of the legacy flooding areas, which are in the old developments.

Below is the Hansard transcript of the same presentation

The Acting Chair (Ms. Cindy Forster): We’re going to move on to the Ontario Society of Professional Engineers: Patrick Sackville and Robert Muir.

Good afternoon. If you can please state your name for the record, and once you settle in there, you’ll have 10 minutes for your presentation.

Mr. Patrick Sackville: Chair, members of the committee, thank you for inviting the Ontario Society of Professional Engineers, or OSPE for short, to provide expert input on behalf of Ontario’s engineers regarding Bill 139, the Building Better Communities and Conserving Watersheds Act.

My name is Patrick Sackville. I am joined to my right by Mr. Robert Muir. Mr. Muir is the manager of stormwater environmental services for the city of Markham and he is a licensed professional engineer in the province of Ontario. He has more than 20 years of private consulting practice, and advises on core public infrastructure resiliency and adaption for the National Research Council and local conservation authorities. He is currently the Water Environment Association of Ontario stakeholder representative on the province’s low-impact development guidelines. Mr. Muir is a member of OSPE’s policy advisory group that has spent the past year conducting groundbreaking research regarding Ontario’s stormwater, waste water and broader asset management strategies, culminating in our July 2017 report Weathering the Storms: Municipalities Plead for Stormwater Infrastructure Funding. We are pleased to be here today to speak on behalf of our membership to offer an engineering perspective to the discussions on Bill 139.

For your knowledge, OSPE is the voice of the engineering profession in Ontario, with more than 80,000 professional engineers and 250,000 engineering graduates, interns and students. We advocate on behalf of important public policy issues that impact engineers and society.

We recognize the pressing need to strengthen and improve Ontario’s existing land use planning system. However, it is our view that Bill 139 does not resolve widespread concern about the efficacy and fairness of Ontario’s land use planning regime. Reflecting on feedback we have received from engineers across Ontario, we reasonably anticipate that Bill 139 may in fact compound or exacerbate several current problems within the current land use planning system and may create new difficulties or unintended consequences, as Mr. Muir will now explain further.

Mr. Robert Muir: Thank you, Patrick. Members of the committee, Bill 139 represents the fourth time the province has proposed substantive amendments to the scope, powers and function of the Ontario Municipal Board since 2003, reflecting the general consensus that change is necessary to modernize Ontario’s land use planning regime.

However, it must be understood that Bill 139 represents the most far-reaching and significant set of changes in decades to Ontario’s land use planning appeals process. If enacted, these legislative changes will have considerable implications for land development, municipalities and growth communities all across Ontario.

Analyzing Bill 139 through the lens of the engineering profession, our comments focus on the technical functionality of the proposed legislation and highlight areas for improvement, specifically the need to strike a balance between interference for restoration versus conservation; the appropriate role of conservation authorities—CAs; and the true cost of resiliency. Bill 139 proposes the replacement of the OMB and broadly expands the powers, duties, governance structure and geographic jurisdiction of CAs across Ontario.

There are a number of positive examples where the OMB has worked to expedite development. In these cases, the OMB has possibly saved years by not perpetuating CA studies which would not have necessarily enhanced planning or better science, but merely more studies. In other instances, CA objections that should have carried more weight have failed to make an impact at the OMB.

Overall, the proposed changes under Bill 139 have the potential to reduce municipalities’ costs related to appeals of planning decisions. For example, eliminating de novo hearings would result in lower costs to defend against appeals.

From an engineering standpoint, to strike a better balance between restoration and conservation, any expansion of CA powers requires greater oversight of CA decision-making and a critical review of their mandate. As an example, to support dense, sustainable, walkable, transit-friendly communities that align with a number of the government’s broader strategies, it is sometimes actually advisable to interfere with natural features; for example, as just one example, headwater drainage features. Under Bill 139, intermittent headwater drainage features, essentially surface depressions, may be regulated as watercourses. The act states that watercourses are the domain of CAs, which may result in inefficient land use planning options and infrastructure service constraints by prohibiting the re-engineering of simple drainage functions.

To this end, the act does not lend clarity to how CAs should be expanding jurisdiction; for example, treating small features through permitting processes to promote watershed health. Nor does it lend clarity on how CAs should be facilitating interference with watercourses where, in legacy service areas, such interference is essential for flood control remediation to protect property or erosion prevention to protect critical infrastructure in valley systems.

Section 28.1 of the bill acknowledges, however, that an authority may issue a permit to a person to engage in a prohibited activity. This means that CAs would have a monopoly over these important decisions. This could result in restricting rightful interventions that equally achieve land development objectives and maintain a high level of environmental stewardship.

CA fees further highlight the issue of mandate which is not remedied by Bill 139.

Section 21.2 of Bill 139 requires the minister to determine classes of programs and services where a CA may charge a fee. Some existing fees pose a burden to low-risk, routine maintenance, and it is not uncommon for permit fees to exceed the cost of minor repairs to municipal stormwater facilities in regulated areas. These fees, and the lengthy permitting process, frequently impede timely and cost-effective infrastructure maintenance. To better focus mandate and to streamline administration, permitting and fee exemptions for minor operational activities should be identified for those activities with low environmental risks. For the committee’s reference, this idea is similar to the recently streamlined federal Fisheries Act self-assessment process that reduced permitting requirements.

Lastly, to improve the accounting of services received for fees rendered, routine review fees could be budgeted by CAs as a core service, as opposed to separate project-by-project review fees. If it is the committee’s interest to empower CAs, this could be better encouraged with a focus on flood and erosion control and multi-ministerial engagement. This could involve the Ministries of Environment and Climate Change; Infrastructure; Natural Resources and Forestry; and Municipal Affairs and Housing, to achieve desired outcomes.

In the pursuit of greater resiliency and watershed conservation, Bill 139 may place significantly greater costs on municipalities and developers. New technologies and environmental services are effective ways to protect watersheds and natural environments, but these come with increased costs. These technologies include green infrastructure or low-impact development measures for climate resiliency. I note that in Bill 139, section 16 of the Planning Act is amended by adding that, “An official plan shall contain policies that identify goals, objectives and actions … for adaptation to a changing climate, including through increasing resiliency.”

Estimates suggest that green infrastructure adaptation costs could be as high as $400,000 per hectare, based on recently tendered construction projects, meaning that long-term province-wide costs to developers and municipalities—and, ultimately, the end consumer and economy—totals hundreds of billions of dollars. Conservation authorities are not accountable for these capital costs. The Ministry of the Environment and Climate Change is not accountable for these costs. In fact, draft green infrastructure policies now being developed by the ministry indicate that “excessive cost” alone shall not be a constraint to green infrastructure implementation. It is municipalities and developers and then, ultimately, the homebuyer and taxpayers, who will have to pick up this bill.

Ultimately, these new service costs have an inverse relationship with other provincial priorities, like improving housing supply and affordability, or the delivery of new transportation and transit infrastructure, as in: the greater overall cost burden, the less that will be built.

This concludes our prepared remarks. Thank you again to the committee for the opportunity to present. We welcome your questions.

The Acting Chair (Ms. Cindy Forster): Thank you so much for your presentation. We’ll start with Mr. Hatfield.

Mr. Percy Hatfield: Thank you, Madam Chair. Patrick, why did you choose such a boring tie today?

Mr. Patrick Sackville: I almost picked out a pink one for you today, sorry.

Mr. Percy Hatfield: We were having a tie-exchange conversation last night, Madam Chair.

Mr. Muir, you talked about the unintended consequences. I’m not sure I heard all of them that you have in mind. Could you just give me a few?

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Mr. Robert Muir: Unintended consequences—I believe that one example is in terms of providing greater climate resiliency or adaptation to climate. In our field, we typically see that as something that promotes green infrastructure, to reduce watershed impacts. Some unintended consequences are the impacts of these measures on existing infrastructure, or interference with municipal water supplies.

Recent examples in York region have resulted in the implementation of green infrastructure installations—parking lots with permeable pavement—that have been constructed in a municipal wellhead protection zone. Under the Clean Water Act, this is a vulnerable area.

I think what it shows is that we have to have a balance between recognizing the constraints to implementation of new resiliency measures—recognizing that there are benefits, but there are also potential impacts and certainly high costs to consider in terms of long-term life-cycle maintenance and the financial sustainability of green infrastructure.

Our view is that green infrastructure should be viewed in the same way as conventional infrastructure, in terms of a fulsome life cycle, asset management and financial planning.

Mr. Percy Hatfield: Thank you. I noticed that at one point you also talked about reducing municipality costs, but I wasn’t sure if you meant that that was a good thing or a bad thing.

Mr. Robert Muir: In terms of municipal board changes, it’s a good thing in terms of streamlining processes. We would look for streamlined permitting requirements and fees, ideally to support cost-effective infrastructure maintenance in municipalities, looking at the Conservation Authorities Act regulations.

Mr. Percy Hatfield: And—

The Acting Chair (Ms. Cindy Forster): Thank you.

We’ll move to the government: Ms. Malhi.

Ms. Harinder Malhi: Hi. Thank you for your presentation. I just wanted to ask you a little bit about your interest in this bill. We’ve had extensive consultations on the updates that are proposed in this bill. Have you participated in any of the prior consultations?

Mr. Patrick Sackville: To this point, no, we had not. Part of the reason why that is is that our organization has a committee structure which is fairly intensive in terms of the feedback outreach that we do, so that only culminated at a nearer date.

Ms. Harinder Malhi: Thank you.

The Acting Chair (Ms. Cindy Forster): Any other questions, government members?

Mr. Lou Rinaldi: No, we’re good.

Ms. Harinder Malhi: We’re good.

The Acting Chair (Ms. Cindy Forster): Okay. We’ll move on to Mr. Miller.

Mr. Norm Miller: Thank you for your presentation. You talked about concern, if I heard you correctly, with expansion of powers for conservation authorities. Can you talk a little bit more about that, if I did in fact hear you correctly?

Mr. Robert Muir: I guess the devil’s in the details in terms of how powers are applied. I provided an example of concern with overregulation of small, low-risk features such as a headwater swale in a watershed. We are able to, and we do, work every day effectively with conservation authorities as a partner for effective management of regulations.

I think that in the bill itself, we do not see significant concerns with overregulation, but we caution that as we go forward, in terms of implementation with regulations and guidelines, we have to be cognizant of the potential impacts.

The example that I provided is that it can result in inefficient built forms of our communities, or inefficient transportation systems, if we overregulate and prevent an adequate number of stream crossings or efficient subdivision layouts.

Mr. Norm Miller: I note that you are manager of stormwater, environmental services. for the city of Markham. My colleague sitting beside me, Ms. Jones, has a private member’s bill with regard to reporting spills in municipalities to the Ministry of the Environment, or having the Ministry of the Environment report on them. Is that something you would support?

Mr. Robert Muir: Reporting of spills? It seems reasonable to me.

Mr. Norm Miller: Thank you for that. You cover the entire province. The area I represent actually doesn’t have a conservation authority—a good chunk of it is in Muskoka—and has had some issues with flood control. Do you see a difference with how the Ministry of Natural Resources and Forestry deals with flood control versus areas that are controlled by conservation authorities?

Mr. Robert Muir: Are you referring, sir, to the lake flooding, for example?

Mr. Norm Miller: Yes, lake and river flooding.

Mr. Robert Muir: I see there has to be integration between the municipal flood management and the riverine flood management and, as I mentioned, more ministerial co-operation so that we address infrastructure improvements and then also proper lake and river water level regulation.

My understanding is that the lake flooding is related to an operational concern which could be improved in terms of better rule curves and evaluating more extreme scenarios in terms of managing lake outflows.

I believe that conservation authorities can certainly help in terms of more proactive management of water levels. In some cases, however, it may be just the natural extremes that we would experience, whether that’s Lake Ontario this year—some folks would say that this has been a very extreme water level year when, in fact, looking back at the records, this May’s and June’s levels in Lake Ontario were only five centimetres above the previous maximum values in earlier decades. We have to be able to prepare for the wide range of water levels and conditions that we can expect in the province.

The Acting Chair (Ms. Cindy Forster): The government hadn’t used all of its time. Mr. Rinaldi, you have a question?

Mr. Lou Rinaldi: Sure. Thank you for being here today. Certainly we value all input that we have, but just a question for you: If this legislation is passed, it requires that a municipality include climate change policies in their official plans. Can you tell us what kind of benefits may result from including climate change objectives in official plans?

Mr. Robert Muir: Certainly. I believe they will provide for some additional resiliency, especially in new development areas. As an example, in north Markham, there is a 1,000-hectare block redevelopment. We would be encouraged through the official plan to ensure resiliency in the new subdivision designs.

The caution I do have, however, is that the majority of flood damage in Ontario municipalities is not focused in new developments. We have only one fiftieth of the flooding in new subdivisions as we have in old subdivisions. Further to that, we have very limited flooding in the riverine system. The flood plain regulations in Ontario have been very effective, such that if you were to look at the last three floods in Toronto—May 2000, August 2005 and July 2013—only one twentieth of the flooding is in regulated river valley areas.

If we want to be proactive about increasing resiliency to reduce flood damage, we have to focus outside the Conservation Authorities Act, outside regulated areas and outside new developments, which are well regulated by planning processes. We have to focus on improving level of service in legacy areas, where the majority of flood occurs. Bill 139 does not provide the means to address legacy flooding areas in old developments.

The Acting Chair (Ms. Cindy Forster): Thank you so much. We’re out of time. Thanks for your presentation, gentlemen.

[End]