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1 Page 1 of Report Planning & Building Department To: Subject: Community Development Committee Protecting Escarpment Rural Land (PERL) Proposed Niagara Escarpment Plan Amendment Niagara Escarpment Commission File No. PH Report Number: File Number: /10 Report Date: March 30, 2011 Wards Affected: Ward 3 Date to Committee: April 18, 2011 Date to Council: May 2, 2011 Recommendations: 1. Circulate report to the Niagara Escarpment Commission for consideration, pursuant to Section 10(1) (a) of the Niagara Escarpment Planning and Development Act. 2. Direct staff to continue to work with the Niagara Escarpment Commission to support the protection of the environmental integrity of the entire Mount Nemo Plateau, in accordance with Council Resolution PB dated November 9 th, Purpose: Address goal, action or initiative in strategic plan Establish new or revised policy or service standard Respond to legislation Respond to staff direction Address other area of responsibility Reference to Strategic Plan: Responsive Community Environmental Stewardship 2.1.B: Work closely with Halton Region, Conservation Halton and other partners to develop a long term strategy to protect, enhance and expand natural areas and parklands in the rural area. 5.6.A: Continue to co ordinate and expand on environmental stewardship efforts with community and regional partnerships.

2 Page 2 of Report 1.0 Background Amendment and Site Details 1.1 Proposed Amendment The application submitted by Protecting Escarpment Rural Land (PERL) proposes to amend the Niagara Escarpment Plan, to re designate approximately 82.3 hectares on the subject site from Escarpment Rural Area to Escarpment Natural Area and Escarpment Protection Area. The proposed amendment specifically details the following: i. The Grindstone Creek Headwaters provincially significant wetland (PSW) complex be re designated to Escarpment Natural Area; ii. iii. iv. Habitat for Jefferson Salamander and Butternut, pursuant to the Endangered Species Act, be re designated to Escarpment Natural Area; The areas identified by Halton Region as Natural Heritage System (Regional Official Plan Amendment (ROPA) 38) be redesignated to Escarpment Protection Area. The remainder of the lands on the subject site be re designated to Escarpment Protection Area. 1.2 Amendment Background Quarry Application In 2004, Nelson Aggregate Co. filed an application under the Niagara Escarpment Planning and Development Act and the Aggregate Resources Act, to expand their existing mineral aggregate operation to include Part Lots 17 and 18, Concession 2 NDS. The amendment included re designating the site from Escarpment Rural Area to Mineral Resource Extraction Area under the Niagara Escarpment Plan. The proposed expansion is characterized as a Category 2 Class A License (quarry below the water table) under the Aggregate Resources Act. Amendments to the City and Regional Official Plans were also filed concurrently. The application to amend the City s Official Plan (File No /04) included the re designation of the existing Agricultural Rural Area (Escarpment Plan Area) and Greenlands (Escarpment Plan Area) land use designations to Mineral Extraction Area.

3 Page 3 of Report JART Process City Position For aggregate applications in Halton Region, a Joint Agency Review Team (JART) is set up to review, analyze and comment on the completeness of technical submissions. The JART review for the proposed Nelson Aggregate Co. mineral aggregate operation expansion was chaired by Region of Halton staff. Staff representing the City of Burlington, Conservation Halton, the Niagara Escarpment Commission, the Ministry of Natural Resources and the Ministry of the Environment were participants in the JART process. On November 9 th, 2009 Burlington City Council resolved to refuse the proposed amendment to the Official Plan, based on the review of the JART submissions and the recommendations by Planning staff. In addition, City Council resolved to recommend against supporting all other required approvals for the undertaking. The Nelson Aggregate Co. applications are now before a Joint Board Hearing (filed June 18, 2008), which is a tribunal comprised of members of the Environmental Review Tribunal and the Ontario Municipal Board Previous PERL Submission and Burlington Council Resolution In 2009, PERL made submissions to re designate the entire Mount Nemo Plateau to Escarpment Natural Area and Escarpment Protection Area. On November 9 th, 2009 Burlington City Council passed a resolution supporting PERL s submissions, and requested that the province and the Niagara Escarpment Commission re designate the Plateau as specified. The resolution additionally requested that a moratorium be placed on the Joint Board Hearing, until the land use re designation of the Mount Nemo Plateau could be submitted as evidence to the Hearing. This paralleled a similar resolution passed by Halton Region. Planning staff understands that the Minister (Ministry of Natural Resources) has not intervened with the requested re designation of the Mount Nemo Plateau, due to the proceedings of the Joint Board Hearing in progress Current PERL Submission and Burlington Council Resolution The current amendment to the Niagara Escarpment Plan is now focused on the lands subject to the Joint Board Hearing, in contrast to the entire Mount Nemo Plateau. Niagara Escarpment Commission staff did not support this application in the preliminary staff report dated August 11, Burlington City Council and Halton Region adopted resolutions on September 15, 2010 supporting the initiation of the PERL application.

4 Page 4 of Report The Niagara Escarpment Commission on November 18, 2010 instructed staff to process and circulate the application, pursuant to Section 7 and 10 of the Niagara Escarpment Planning and Development Act. 1.3 Site Description The subject site (Part Lots 17 and 18, Concession 2 NDS) is owned by Nelson Aggregates Co., on No. 2 Side Road west of the settlement of Mount Nemo (Sketch 1 Area Sketch, page 6 of this report). The existing Nelson Aggregate Co. quarry is located north of the site, on the other side of No. 2 Side Road. The existing quarry is approximately hectares in size, and has been in operation since Nelson Aggregate Co. has operated the site since The following land uses are directly adjacent to the site: West: a rural residence and golf course, approximately 0.06 and 59 hectares respectively in size. East: two rural residences (approximately 3 and 1.8 hectares), and an approximate 47 hectare agricultural operation. The Mount Nemo Settlement Area is also located approximately 170 meters east of the site. South: The Sun Canadian Pipeline parallels the southern boundary of the site. Agricultural operations are also south of the site. The site is positioned within the central portion of the Mount Nemo Plateau; an ecologically and hydrologically sensitive landform within the Escarpment (Appendix I Sketch 2, page 23 of this report). The Plateau is the highest landform in the surrounding area of the Escarpment, and is characterized by a number of headwater tributaries that originate on the Plateau, including: tributaries to Shoreacres Creek, Tuck Creek, Willoughby Creek (Bronte Creek), Lowville Creek (Bronte Creek), and the Mount Nemo Tributaries (Grindstone Creek). The site is divided by two watersheds. The balance of the site is within the Grindstone Creek watershed; whereas the northeast portion of the site is within the Bronte Creek watershed. The majority of the site drains to the west and east branches of the Mount Nemo Tributary. Planning staff notes that the following natural heritage and hydrological features (not an exhaustive list) bisect the subject site:

5 Page 5 of Report i. The Grindstone Creek Headwaters provincially significant wetland (PSW) complex bisects the eastern and south western portion of the site. The identified wetland complex was evaluated in 2007, pursuant to the Ontario Wetland Evaluation System, and extends off the site subject to the PERL application to the east and south; ii. iii. iv. Pursuant to the Endangered Species Act, Jefferson Salamander habitat has been confirmed on and adjacent to the site. Jefferson Salamander is listed as threatened on the Species at Risk in Ontario List. Butternut trees, listed as endangered (if retainable) under the legislation, have also been recorded on the site; In review of the JART report, the total forested area on and adjacent to the subject site is approximately 64.2 hectares. Approximately 44.5 hectares of the above total is contained within the site. Planning staff notes that these features are considered significant woodlands, based on the Regional and City Official Plan s adopted criteria of significance (size and riparian configuration); and Multiple headwater tributaries of the Grindstone Creek watershed (Mount Nemo Tributaries) bisect the site, conveying water in a north to south direction. A portion of the water flow of the western tributary originates as pumped discharge from the south central sump of the existing quarry. It is pumped on an intermittent basis to this tributary. These tributaries have been identified as directly and/or indirectly supporting fish habitat in the JART report, pursuant to the Fisheries Act. In the context of the greater natural area, provincially significant earth and life science Areas of Natural Scientific Interest (ANSI), Regional environmentally sensitive areas, PSWs and Escarpment Natural Areas have also been evaluated/designated on and or directly adjacent to the Mount Nemo Plateau.

6 Page 6 of Report Sketch 1 Area Sketch (Part Lots 17 and 18, Concession 2 NDS)

7 Page 7 of Report 2.0 Review Strategy/ Process Section 6.1(2.1) of the Niagara Escarpment Planning and Development Act requires that an application for Plan amendment include a statement of justification and supporting documentation, demonstrating that the proposed amendment is consistent with the purpose and objectives of the legislation. Planning staff have reviewed the proposed amendment to the Plan, and supporting documentation circulated for comment by the Niagara Escarpment Commission, as outlined in Section 10(1) (a) of the Niagara Escarpment Planning and Development Act. The review of the proposed Niagara Escarpment Plan amendment parallels the proceedings of the Joint Board Hearing. The City of Burlington is currently a Party to the Hearing. The following review is based on the planning merits of the proposed application, pursuant to applicable legislation and planning policies. This application is not the same as the applications that are before the Joint Board. Thus, the City s position on the present application is independent of its position at the proceedings of the Joint Board Hearing. More specifically, the proposed amendment, and the subsequent Planning staff review on the merits of the application, is centered on the Escarpment Natural Area and Escarpment Protection Area designation criteria policies in Sections 1.3 and 1.4 of the Plan. The City s position at the hearing involves other parts and policies of the Niagara Escarpment Plan. Planning staff notes that some of the supporting documentation to PERL s application does draw upon technical submissions currently before the Joint Board. These technical submissions have been reviewed by Planning staff in context of the City s evidence at the Hearing for consistency. In addition to the above, on February 16, 2011 the Sustainable Development Committee was provided the opportunity to review the proposed PERL amendment, and provided comments on March 30, The Committee s comments have been summarized in Section 3.0 and attached within Appendix II of this report.

8 Page 8 of Report 3.0 Sustainable Development Committee Comments 3.1 Committee Recommendations The following is a summary of the Sustainable Development Committee s comments provided on March 30, Please refer to Appendix II for the complete report. The Sustainable Development Committee recommends that the City support, with modifications, PERL s proposed amendment to the Niagara Escarpment Plan. In context to PERL s proposed amendments noted in Section 1.1 to this report, the Sustainable Development Committee specifically recommends the following: Proposed Amendment Committee Comment The Grindstone Creek Headwaters provincially significant PSW complex be re designated to Escarpment Natural Area. Habitat for Jefferson Salamander and Butternut, pursuant to the Endangered Species Act, be re designated to Escarpment Natural Area. The areas identified by Halton Region as Natural Heritage System (ROPA 38) be re designated to Escarpment Protection Area. The remainder of the lands on the subject site be re designated to Escarpment Protection Area. This area should be amended to Escarpment Natural Area; as provincially significant wetlands will meet the Niagara Escarpment Plan s objectives. The Niagara Escarpment Commission should also consider widening the area to include the whole catchment area of the wetlands to truly protect the wetland complex. The habitat for listed species at risk should be amended to Escarpment Natural Area. As the Ministry of Natural Resources is deemed to be the provincial authority on determining the habitat, their mapping provided for the Nelson Joint Board Hearing should be considered the minimum Jefferson Salamander habitat for this assessment. The lands designated as the Regional Natural Heritage System (ROPA 38) should be amended to Escarpment Protection Area as a minimum. The City of Burlington s Natural Heritage System should be taken into consideration. The Committee cannot support PERL s assessment in designating this area as Escarpment Protection Area with the information provided. The Comments from the Sustainable Development Committee generally align with Planning staff s position, in context to the recommendation of

9 Page 9 of Report re designating the Grindstone Creek Headwaters PSW complex, and the position on re designating the remainder of the lands on the subject site to Escarpment Protection Area (amendment (iv) in Section 1.1 to this report). Section 4.2 to this report (Staff Analysis of the Proposed Amendment), articulates staff s position on the proposed PERL amendment application. 4.0 Discussion: 4.1 Applicable Legislation and Policy Provincial Policy Statement The Provincial Policy Statement (PPS), issued in 2005 under the authority of Section 3 of the Planning Act, provides direction on matters of provincial interest related to land use planning and development. All land use planning decisions are required to be consistent with the PPS. Notwithstanding the above, Policy 4.9 (Implementation and Interpretation) of the PPS states that provincial plans, including the Niagara Escarpment Plan, takes precedence over the policies of the PPS in the event of any conflict Greenbelt Plan Halton Region Official Plan Pursuant to Section 3.0 of the Greenbelt Act, the Greenbelt Plan was issued in 2005, and includes the entire Niagara Escarpment planning area. Section 2.2 of the Greenbelt Plan states that the requirements of the Niagara Escarpment Plan continue to apply, and the policies of the Greenbelt Plan do not apply on the Niagara Escarpment with the exception of Section 3.3 (Open Space and Trails). Section 3(5) (b) of the Planning Act states that municipal Official Plans must be in conformity with provincial plans. Part 3, Subsection 64 of the Regional Official Plan (2006) states that in the event of conflict between provisions of this Plan and those of The Niagara Escarpment Plan, the provincial plan shall prevail. The current Regional Official Plan (2006) land use designations on the site are identified as Escarpment Rural Area, and a minor encroachment of Greenland (Greenlands B) at the southern portion of the site (Official Plan Map 1 The Regional Structure). The Greenland designation in the Official Plan includes natural heritage and/or hydrological features that meet the criteria listed in Policy 130(1) of the Plan (e.g. includes significant woodlands (Policy 130(1) (e)).

10 Page 10 of Report Planning staff notes that the existing Greenland designation does not appear to coincide with the boundaries of the identified natural heritage or hydrological features inherent to the site. On December 16, 2009 Halton Region adopted ROPA 38, a revision to the Regional Official Plan that incorporates the results of Sustainable Halton, and the Region's comprehensive review of the Plan pursuant to Section 26(1) of the Planning Act. ROPA 38 s policy and regional mapping structure (ROPA 38 Map 1 Regional Structure) designates the subject site as Agricultural Rural Area and Regional Natural Heritage System. The proposed Regional Natural Heritage System replaces the feature centric policy model of the current Greenland System, in order to build on the systems based strategic direction of the Region (Sustainable Halton), and the natural heritage system policy direction of the PPS and the Greenbelt Plan. Planning staff understands that a partial draft decision on ROPA 38 was issued by the Province on October 27, However, the proposed Regional Natural Heritage System remains as an outstanding issue from the Province, and has been tabled for future modifications (MMAH File No.: 24 0P ). Notwithstanding the above, Planning staff are of the opinion that the policies and Schedule mapping of ROPA 38 are still relevant to the proposed amendment, as they have been endorsed by Regional Council, and represent the most up to date integration of planning policy and science based natural system evaluation City Official Plan Part VII, Schedule C of the Official Plan designates the site as Escarpment Rural Area and Greenlands (Escarpment Plan Area), and is identified as Rural Lands in Schedule A to the Plan (Appendix I Sketch 3, page 24 to this report). Consistent with the Regional Official Plan, Part IV (Land use Planning Policies Rural Planning Area), Policy 2.1.3(e) (i) of the City s Official Plan states that: Policy 2.1.3(e) (i): All development within the Niagara Escarpment Plan Area shall be subject to The Niagara Escarpment Planning and Development Act, the Niagara Escarpment Plan, and the policies of the Region of Halton and City of Burlington Official Plans. In the

11 Page 11 of Report event of conflicts between policies, the more restrictive shall apply. Planning staff notes that in the event that ROPA 38 is approved by the Province, the City s Official Plan will be required to be brought into conformity as mandated under the Planning Act Niagara Escarpment Plan Established under the Niagara Escarpment Planning and Development Act, the Niagara Escarpment Plan (issued in 1985, with revisions in 1990 and 1999) implements the purpose and objectives of the legislation. The purpose of the Plan is to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment. The overarching objectives of the Plan are: i. To protect unique ecologic and historic areas; ii. iii. iv. To maintain and enhance the quality and character of natural streams and water supplies; To provide adequate opportunities for outdoor recreation; To maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery; v. To ensure that all new development is compatible with the purpose of the Plan; vi. vii. To provide for adequate public access to the Niagara Escarpment; and To support municipalities within the Niagara Escarpment Plan Area in their exercise of the planning functions conferred upon them by the Planning Act. The current land use designation on the site is identified as Escarpment Rural Area under the Plan (Appendix I Sketch 4, page 25 of this report). Section 1.3 and 1.4 of the Niagara Escarpment Plan respectively states that Escarpment Natural Area and Escarpment Protection Area include: Section 1.3: Escarpment features which are in a relatively natural state and associated stream valleys, wetlands and forests which are

12 Page 12 of Report relatively undisturbed are included within this designation; and Section 1.4: Escarpment features that have been significantly modified by land use activities such as agriculture or residential development, land needed to buffer prominent Escarpment Natural Areas and natural areas of regional significance. The objectives and designation criteria policies of the Niagara Escarpment Plan, in context to Escarpment Natural Area and Escarpment Protection Area, are included in Table Table Escarpment Natural Area and Escarpment Protection Area, Objectives and Designation Criteria (Section 1.3 and 1.4) Objectives Criteria for Designation Escarpment Natural Area Escarpment Protection Area To maintain the most natural Escarpment features, stream valleys, wetlands and related significant natural areas and associated cultural heritage features. To encourage compatible recreation, conservation and educational activities. To maintain and enhance the landscape quality of Escarpment features. To maintain and enhance the open landscape character of Escarpment features. To provide a buffer to prominent Escarpment features. To maintain natural areas of regional significance and cultural heritage features. To encourage agriculture, forestry and recreation. Escarpment slopes and related landforms associated with the underlying bedrock which are in a relatively natural state. Where forest lands abut the Escarpment, the designation includes the forested lands 300 metres (1,000 feet) back from the brow of the Escarpment slope (e.g. Bruce Peninsula). The most significant Areas of Natural and Scientific Interest (Life Science). The most significant stream valleys and wetlands associated with the Escarpment. Escarpment slopes and related landforms where existing land uses have significantly altered the natural environment (e.g. agricultural lands or residential development). Areas in close proximity to Escarpment slopes which visually are part of the landscape unit. Regionally Significant Areas of Natural and Scientific Interest (Life Science) or areas designated as environmentally sensitive by municipalities or conservation authorities.

13 Page 13 of Report With respect to the relationship with policy statements issued under Section 3 of the Planning Act, Part 2.1 of the Niagara Escarpment Plan states that the Plan shall be consistent with such policy statements, but that it shall take precedence in the event of a conflict. 4.2 Staff Analysis of the Proposed Amendment In light of the above planning policy and legislation, the relevant policies of the Niagara Escarpment Plan set the precedent for the planning merits of the PERL application. Section of the Niagara Escarpment Plan states that changes in policy or land use designations require an amendment to the text and/or Appendices and Maps of this Plan. An amendment to the land use mapping of the Niagara Escarpment Plan must demonstrate conformity with the purpose, objectives and policies (i.e. designation criteria) of the Plan. Part B of the proposed amendment states that this amendment proposes no changes to the text of the Niagara Escarpment Plan. As such, the following analysis is based on the current policy framework of the Plan Amendment i The Grindstone Creek Headwaters provincially significant wetland (PSW) complex be re designated to Escarpment Natural Area. The criteria for designation of Escarpment Natural Area include the most significant wetlands of the Escarpment. The Grindstone Creek Headwaters PSW complex was evaluated as provincially significant in 2007 by the Ministry of Natural Resources, pursuant to the Ontario Wetland Evaluation System. The Niagara Escarpment Plan does not provide a definition of significant wetlands. However, in reference to the PPS, significant wetlands are defined as wetlands that are identified as provincially significant by the Ministry of Natural Resources using evaluation procedures established by the Province. This definition is consistent with the Regional Official Plan and the City s Official Plan (Part VIII Definitions). Planning staff are of the opinion that the inclusion of the subject PSW complex meets the intent of the designation policies of the Escarpment Natural Area, and the purpose and objectives of the Niagara Escarpment Plan. An objective of the Escarpment Natural Area designation is to also maintain and enhance the landscape quality of Escarpment features.

14 Page 14 of Report Notwithstanding the above, the Grindstone Creek Headwaters PSW complex is not confined to the site subject to the PERL application. Several wetland units of the complex extend beyond the eastern and southern boundaries of the site (Map 2 Appendix C to the PERL application). Planning staff notes that approximately 41% of the wetland complex appears to extend off the subject site. The purpose of the Niagara Escarpment Plan is to maintain the Escarpment substantially as a continuous natural environment. In addition Policy 2.2.1(a) of the PPS and Part II, Policy 2.1(c) of the City s Official Plan support the watershed as the meaningful ecologically significant scale for planning. Planning staff are of the opinion that the watershed scale should be given due consideration; as such, the entire wetland complex should be considered for amendment to meet the Niagara Escarpment Plan s purpose and objectives. Staff Position Planning staff recommends that the proposed amendment of Escarpment Rural Area to Escarpment Natural Area, in context to the Grindstone Creek Headwaters PSW complex, be broadened to reflect the entire wetland complex on the Mount Nemo Plateau. This would also be in accordance with the City s November 9 th, 2009 resolution, supporting the ecological and hydrological significance of the Plateau. Additionally, it is Planning staff s understanding that the extent of the Grindstone Creek Headwaters PSW complex on the site is currently being reviewed at the Joint Board Hearing. Pursuant to the Ontario Wetland Evaluation System, in the event that the boundaries of the Grindstone Creek Headwaters PSW complex changes, Planning staff recommends that the Niagara Escarpment Commission further amend these areas to Escarpment Natural Area Amendment ii Habitat for Jefferson Salamander and Butternut, pursuant to the Endangered Species Act, be re designated to Escarpment Natural Area. Jefferson Salamander and Butternut trees (if retainable) are listed as threatened and endangered respectively on the Species at Risk in Ontario List, pursuant to the Endangered Species Act (2007). Under Section 9 (1)(a) and 10 (1)(a) of the legislation, it is prohibited to kill, harm, harass, or capture a listed species on the Species at Risk in Ontario List as extirpated, endangered or threatened, or damage or destroy the habitat of listed endangered or threatened species. The Minister (Ministry of Natural Resources) may issue an authorization to

15 Page 15 of Report permit an activity that would otherwise be prohibited by Section 9 or 10, if the tests of Section 17 of the Act can be demonstrated. Jefferson Salamander (threatened) habitat is regulated under the Endangered Species Act through Ontario Regulation 242/08, where Butternut (endangered if retainable) currently receives general habitat protection under the legislation. Policies and 2.8.2(a) of the Niagara Escarpment Plan (Part 2 Development Criteria) respectively states that: Policy 2.8.1: New development will not be permitted in identified habitat of endangered (regulated) plant or animal species; and Policy 2.8.2(a): Development shall be designed so as to minimize the impacts upon wildlife habitat, in particular, habitats of endangered (not regulated), rare, special concern, and threatened plant or animal species... Planning staff notes that Policies and 2.8.2(a) of the Niagara Escarpment Plan refers to species at risk under the province s previous Endangered Species Act established in This is evident in the policy distinction between regulated and non regulated endangered species, and the hierarchical protection levels in the policies. The current policy framework of the Plan does not reflect the current Endangered Species Act established in 2007, or the policy direction of the PPS to prohibit development and site alteration in the significant habitat of endangered and threatened species (PPS Policy 2.1.3(a)). Planning staff understands that the Niagara Escarpment Commission has already proposed an amendment to the Plan (PC March 19, 2009), to harmonize the 2007 Endangered Species Act with the relevant policies of the Plan. Despite the current policies of the Niagara Escarpment Plan, the noted species at risk and associated habitat on the site are afforded legal protection through the current Endangered Species Act. Notwithstanding the above, the Niagara Escarpment Plan s criteria of designation for Escarpment Natural Area does not include listed species at risk and associated habitat under the Endangered Species Act. Staff Position Planning staff are of the opinion that a planning position can be justified that the proposed amendment to Escarpment Natural Area, to reflect

16 Page 16 of Report provincial species at risk and associated habitat, does align with the purpose, overarching objectives, and Escarpment Natural Area objectives of the Plan. More specifically, the amendment would align with the objectives to protect unique ecological areas and to maintain and enhance the landscape quality of Escarpment features. However, in the absence of amending the Niagara Escarpment Plan s policies fundamental to the designation criteria of Escarpment Natural Area to include listed species at risk and associated habitat under the Endangered Species Act, the proposed mapping amendment does not conform to the current Plan s land use designation policies. Planning staff is supportive of the objective of the proposed PERL amendment, to amend Jefferson Salamander (threatened) habitat to Escarpment Natural Area; however, staff cannot find appropriate means to achieve this objective under the current Plan s land use designation policies Mapping Comments The PERL application has submitted two different Jefferson Salamander (threatened) habitat maps in support of the amendment (Maps 9 and 11 Appendix C to the PERL application). The first is considered inferred habitat mapping developed by the City of Burlington, and the second represents regulated habitat mapping prepared by the Ministry of Natural Resources, pursuant to Ontario Regulation 242/08. The inferred Jefferson Salamander (threatened) habitat appears to form the basis for the amendment (Maps 12 and 13 Appendix C to the PERL application). Planning staff notes that the inferred habitat mapping was interpreted for the site and immediate area in concert to the draft Recovery Strategy (2009) for the species, prior to the establishment of the habitat regulation under Ontario Regulation 242/08. Planning staff is of the opinion that the inferred habitat mapping for the species does not reflect the regulated habitat under the legislation; as such, it is recommended that this habitat interpretation not be considered by the Niagara Escarpment Commission. Staff Position The appropriate interpretation of regulated Jefferson Salamander (threatened) habitat on and adjacent to the site is currently under consideration before the Joint Board Hearing. Planning staff notes that at the hearing City experts are advancing the opinion that the habitat mapping prepared by the Ministry of Natural Resources underrepresents the regulated habitat for the species.

17 Page 17 of Report Amendment iii The areas identified by Halton Region as Natural Heritage System (Regional Official Plan Amendment 38) be re designated to Escarpment Protection Area. Planning staff understands that the Regional Natural Heritage System (ROPA 38) forms the basis for the proposed amendment to Escarpment Protection Area (Part A to the PERL application). Under the Niagara Escarpment Plan, the designation criteria policies for Escarpment Protection Area include areas designated as environmentally sensitive by municipalities or conservation authorities. Planning staff understands that the application s justification to amend the Regional Natural Heritage System to Escarpment Protection Area is based on the opinion that the overall system represents an environmentally sensitive area, without a hierarchical distinction between features. Regional staff through correspondence on March 30, 2011 confirmed that in context to ROPA 38 it is the Region s opinion that the Regional Natural Heritage System is environmentally sensitive. As such, would satisfy the Plan s Escarpment Protection Area designation criterion of areas designated as environmentally sensitive by the municipality. In context to the City of Burlington s Official Plan, environmentally sensitive areas are evaluated and identified at the Regional level, and further implemented by the City through policy. Planning staff does not support however the rationale of the PERL application to compartmentalize the natural heritage system to the lot boundaries of the site. This approach invalidates the argument of the environmental significance of the overall natural heritage system. Staff Position Planning staff defers to the Region s opinion on environmentally sensitive areas in the context to ROPA 38, as the Region is the appropriate municipal authority regarding the evaluation and identification of environmentally sensitive areas. Planning staff additionally notes that if the Niagara Escarpment Commission is of mind to accept PERL s justification to amend the Regional Natural Heritage System to Escarpment Protection Area, the entire system will have to be considered for amendment to maintain the environmental integrity of the natural heritage system (a system without

18 Page 18 of Report a hierarchical distinction between features). This would also be in accordance with the City s November 9 th, 2009 resolution, supporting the ecological and hydrological significance of the Plateau Mapping Comments In review of the mapping submitted in support of the application (Maps 12 and 13 Appendix C to the PERL application), Planning staff notes that the Regional Natural Heritage System has been consolidated with a draft natural heritage system map under development by City of Burlington staff in The Regional Natural Heritage System inherent to the site appears to include significant woodlands, the Grindstone Creek Headwaters PSW complex, and the ecological and hydrological linkages between these features. The balance of the two system boundaries appears to be relatively consistent, except for several minor deviations where the draft Burlington natural heritage system map exceeds the Regional designation. Planning staff notes that the draft Burlington natural heritage system map has not been endorsed by City Council through an amendment to the Official Plan. As such, the map has no formal standing under the Planning Act. Staff Position Planning staff recommends that the Niagara Escarpment Commission not consider the draft Burlington natural heritage system map as justification to amend the site to Escarpment Protection Area. Planning staff additionally notes that the consolidated PERL recommended Escarpment land use designation map (Map 13 Appendix C to the PERL application) does not appear to reflect the proposed amendment. The subject map identifies the Regional Natural Heritage System as Escarpment Natural Area, in contrast to the proposed amendment to Escarpment Protection Area. It is recommended that Niagara Escarpment Commission staff confirm this inconsistency with the applicant Amendment iv Staff Position The remainder of the lands on the subject site be re designated to Escarpment Protection Area. PERL has not submitted clear justification to rationalize amending the remainder of the lands on the subject site to Escarpment Protection Area. In the absence of this information, Planning staff cannot comment on the planning merits of this part of the PERL application.

19 Page 19 of Report 4.3 Additional Staff Comments for Consideration Planning staff notes that the land use designation criteria policies of the Niagara Escarpment Plan have been static since the Plans inception in Part 2.1 of the Niagara Escarpment Plan states that the Plan shall be consistent with such policy statements, issued under Section 3 of the Planning Act, but that it shall take precedence in the event of a conflict. Provincial policy has evolved from a feature centric policy framework (e.g. the previous PPS (1997)), to a systems based policy framework, which acknowledges the significance of natural heritage system and watershed planning in promoting the protection of ecological and hydrological functions and biodiversity. Planning staff considers planning for natural heritage systems to be a means of achieving an ecosystem based solution to the protection of natural heritage features and of factoring in their relationship to surface and groundwater. The identification of natural heritage features and significant surface and groundwater features, as inter related components to a more complete natural heritage system, are noted in Policies and 2.2.1(a, c and e) of the PPS. In addition to the above, the lands prescribed under the Greenbelt Plan include the Niagara Escarpment and the Oak Ridges Moraine (ORM). A comprehensive systems approach was applied in the development of the Greenbelt Plan and the ORM Conservation Plan, where the inter related functionality between natural heritage and hydrological features in these Plans collectively supports biodiversity and overall system integrity. The systems approach is demonstrated in the Natural Core and Natural Linkage areas in the ORM Conservation Plan, and the designation of a natural heritage system overlay in the Greenbelt Plan. Planning staff notes that the purpose of the Niagara Escarpment Plan (i.e. a continuous natural environment) provides strategic direction for a systems approach to planning. This is reflected in specific policies in the Niagara Escarpment Plan, including but not limited to, development policies for mineral extraction (Section 1.5) and development criteria policies for wildlife habitat (Section 2.8). Notwithstanding the above, the policies fundamental to the Escarpment Natural Area and Escarpment Protection Area criteria for designation are predominately feature centric, and do not appear to address the functional relationships between these features. Planning staff are of

20 Page 20 of Report the opinion that current Provincial policy frameworks have evolved beyond this planning model, as noted above. 5.0 Conclusion Planning staff acknowledges the ecological and hydrological significance of the entire Mount Nemo Plateau. In light of the above staff analysis of the proposed Niagara Escarpment Plan amendment, Planning staff offers the following for consideration: Proposed Amendment Planning Staff Comment The Grindstone Creek Headwaters provincially significant PSW complex be re designated to Escarpment Natural Area. Habitat for Jefferson Salamander and Butternut, pursuant to the Endangered Species Act, be re designated to Escarpment Natural Area. Planning staff supports the re designation of the Grindstone Creek Headwaters PSW complex to Escarpment Natural Area, conditional on the amendment being broadened to reflect the entire wetland complex on the Mount Nemo Plateau. In the absence of amending the Escarpment Natural Area criteria for designation policies in the Plan, to recognize listed provincial species at risk and associated habitat, Planning staff are of the opinion that the proposed mapping amendment does not conform to the Niagara Escarpment Plan s land use designation policies. Planning staff recommends that the Niagara Escarpment Commission amend the Plan s policies to recognize listed provincial species at risk, and associated habitat, as a designation criterion for Escarpment Natural Area. In accordance with the policies and objectives of the Plan. The areas identified by Halton Region as Natural Heritage System (ROPA 38) be re designated to Escarpment Protection Area. Under the Niagara Escarpment Plan, the designation criteria policies for Escarpment Protection Area include areas designated as environmentally sensitive by municipalities or conservation authorities. In context to the City of Burlington s Official Plan, environmentally sensitive areas are evaluated and identified at the Regional level, and further implemented by the City through policy. Planning staff defers to the Region s opinion on environmentally sensitive areas in the context to ROPA 38, as the Region is the appropriate municipal authority regarding the evaluation and identification of environmentally sensitive areas.

21 Page 21 of Report The remainder of the lands on the subject site be re designated to Escarpment Protection Area. Planning staff cannot comment on the planning merits of amending the remainder of the lands on the site to Escarpment Protection Area, in the absence of clear justification to support the mapping amendment. Planning staff appreciates the significant effort PERL, as a volunteer organization, has made in preparation of the proposed amendment to the Niagara Escarpment Plan. Planning staff supports in principle the recognition of the environmental significance of the subject property, and therefore supports in principle the PERL amendment application. However, under the current Niagara Escarpment Plan s criteria of designation policies, staff can only support part of the current application. In accordance with Council s Resolution of November 9 th, 2009, Planning staff would welcome the opportunity to continue to participate with PERL and the Niagara Escarpment Commission in ensuring the overall protection of the Mount Nemo Plateau. The City of Burlington additionally recommends that the Niagara Escarpment Commission review the overall policy framework of the Niagara Escarpment Plan, to ensure the Plan is still consistent with Provincial policy issued under Section 3 of the Planning Act; incorporating a system based approach to planning for a complete natural heritage system. Respectfully submitted, Dave Marriott (Planner) Development Review X. 7875

22 Page 22 of Report Appendices: Appendix I Report Sketches Appendix II Sustainable Development Committee Comments Notifications: (after Council decision) Name Mailing or E mail Address Approvals: *required *Department City Treasurer General City Manager To be completed by the Clerks Department Committee Disposition & Comments Council Disposition & Comments 01 Approved 02 Not Approved 03 Amended 04 Referred 06 Received & Filed 07 Withdrawn 01 Approved 02 Not Approved 03 Amended 04 Referred 06 Received & Filed 07 Withdrawn

23 Page 23 of Report Appendix I Report Sketches Sketch 2: Mount Nemo Plateau

24 Page 24 of Report Sketch 3: City Official Plan Land use Designations

25 Page 25 of Report Sketch 4: Niagara Escarpment Plan Land use Designations

26 Page 26 of Report Appendix II

27 Page 27 of Report

28 Page 28 of Report

29 Page 29 of Report

30 Page 30 of Report

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