Endangered Species Act Review - New Assault on Thin Green Line of Environmental Protections In Ontario

Written by Dr. John Bacher, Ph.D.
Originally posted here

A close look at the language of the Ontario government’s consultation paper on the Endangered Species Act clearly shows that there is no sense of the urgent need to protect bio-diversity from the extinction crisis that is enveloping the world. Rather than any lamentation over the loss of species, there are phrases that ominously treat the current minimalist legislation to protect their habitats as a bothersome expense for business.

For example, the consultation paper groans over how the Ontario Endangered Species Act is “time consuming and costly to applicants.” It also disturbingly asks, “In what circumstances is the development of habitat regulation warranted, or not warranted?(eg. To impose for business and others about the scope of habitat that is protected.”

Round-leaved Greenbrier, Photo by Joyce Sankey.

In contrast, a 1970 Philips Study ‘Potential Recreational Areas and Fragile Biodiversity Inventory and recommendations’, prepared in the lead up to the formation of the Regional Municipality of Niagara in 1972, alerted me, even as a teen, to the threats to rare species in Niagara, and although there was no legislation to protect endangered species at that time, they were recognized in practice by botanists in the then- Department of Lands and Forests. And upon reading the Department’s natural area studies I couldn’t help but be fascinated by the account of a rare species of our region, the Round-leaved Greenbrier, to me, a mysterious vine from the American deep south which survived in forests in Niagara Falls. These were once common in the Carolinian life zone, but vanished to the swamp forests of the City of thundering waters after the woodlands of this region were rapidly burnt up by “settlers.”

These Greenbrier woodlands have been defended over many years by a remarkable brother and sister team of Peter and Jean Grandoni, dairy farmers with a deep connection to the earth, whom I met in the mid- 1970s. As the late Peter Grandoni explained to me, the need to protect Greenbrier habitats had been recognized by the provincial government as far back as 1960 in the Lake Erie Transportation study which pointed to the significance of three Niagara Falls forests to the survival of the Round-leaved greenbrier in Ontario.

The situation regarding the Greenbrier is similar to that of many of Ontario’s 243 Species at Risk today, and what needs to be known to protect its habitat was understood by dedicated public servants sixty years ago. For their part, the Grandonis, whom I worked closely with starting in about 1976, had a profound understanding of the importance of the swamps that provide the habitat to the Round-leaf Greenbrier.

What was so tragic to witness over the years, was how our opportunities to save the Greenbrier were wasted over the years we worked together. For instance, we failed to remove a large farmland parcel in which the rare vine hung on in a woodlot, from the urban boundary at a 1978 Ontario Municipal Board (OMB) hearing .

However, later the parcel was brought by a responsible developer, and the woodlot was saved in its entirety. Without any controversy the East Wood development protected the Threatened Greenbrier. The homes were also arranged carefully away from the swamp wetland forest which contains vernal pools for breeding amphibians.

While this developer protected the habitat of the Threatened Greenbrier voluntarily, two others forced me to take part in epic struggles at the OMB, with PALS and Jean Grandoni, to protect such habitat. One stronghold of the Threatened Greenbrier was in a twenty five acre forest in Niagara Falls, along Garner Road. It was part of a larger 125 acre parcel, largely farmland. The entire parcel was at one time owned by the City of Niagara Falls and could at that time have been properly turned into a protected municipal forested park.

When the Garner Road Forest was sold to a developer by the City, Jean Grandoni asked the Niagara Falls City Council to sever the forest from the largely agricultural property and retain it. The developer responded with a Strategic Lawsuit Against Public Participation (SLAPP). Jean Grandoni was forced to seek the assistance of the Canadian Environmental Law Association, who achieved a negotiated settlement and later was forced to apologize at a Niagara Falls council meeting.

After ecologist Albert Garafalo prepared a presentation to the Niagara Falls City Council on the Garner Road Forest, the developer retaliated by clear cutting half of it. The forest and the Greenbrier was rescued from complete destruction only after a veteran ecological activist John Lynn, contacted the Hamilton CHCH television station.

The remaining 12 acre forest of the Fernwood subdivision was protected by an OMB appeal made by PALS and Jean Grandoni (following the death of her brother, Peter). OMB Witness Statements were filed by two experts on their behalf, Bruce Kershner, and Hugh Gayler, and during an OMB field visit Kershner, discovered a previously unidentified Species at Risk, the White Wood Aster.

Having two Species at Risk in a dozen acre forest, which also has a rare Buttonbush ecological community, had a major impact, as the developer gave in prior to the hearing after an exchange of expert witness statements. Before the full hearing was scheduled the developer agreed to transfer title to the forest to the City of Niagara Falls for a nature park.

Later the developer admitted the higher price he was able to make for his lots by having a forested amenity near their homes, more than compensated for what he lost in terms of developable acreage. He later called Jean Grandoni, whom he had earlier issued a SLAPP suit against, a voice of conscience for good development in Niagara Falls.

It is unfortunate, that had the Preliminary Proposals of 1977 to the Niagara Escarpment Plan been adopted, the Round Leaved Greenbrier, part of what is now understood as the Thundering Waters Forest, would have been protected without OMB drama. And, tragically in 1992 a thirty five acre old growth forest north of Oldfield Road was clear cut on lands which were then proposed to be protected as an Escarpment Natural Area.

However, likely through informal pressure from the Ministry of Natural Resources (MNR, successor to Lands and Forests), 10 acres of its habitat was protected as a linear forest, adjacent to a power transmission line. This was set aside informally, to in effect protect the habitat of the Round-Leaved Greenbrier, which when the Ontario Endangered Species Act was proclaimed, was recognized as a Threatened Species.

Development conflict with endangered species and the natural habitat they live in has actually been quite rare, perhaps because of two important studies- the previously mentioned 1970 Phillips study and the 1980 joint Niagara Region and Brock University Environmental Sensitive Areas study, popularly known as the Brady report.

The negative comments about the current Endangered Species Act cited in the consultation paper ignore the reality of what I have experienced in Niagara. Saving the habitat of endangered species has been an economic benefit not a detraction. The norm in Niagara of hundred acre 19th century farm lots is similar to those in the Carolinian zone, the most important area of threatened bio-diversity in Canada. If the wooded areas of this landscape, which are often back- woodlots away from road access, are protected, the remaining real estate parcel, as Jean Grandoni was told by a developer is worth more.

The Endangered Species Act in its current form has been a valuable supplement to good land use planning in Niagara. The attacks on it in the discussion document about being anti-business are inaccurate. By saving natural areas near urban spaces it has increased the quality of urban development. If one goes to see the lands identified by both the 1970 Phillips Report, and the 1980 Brady report, all these areas are larger, and likely if inventoried, more biologically diverse, than they were when these studies were written. The exception, which proves the rule as to the importance of the Endangered Species Act, is an area identified in the Brady Report as the Ramsey Road Woodlot. It has become popularly known as the Thundering Waters Forest.

Between 1993 and 2014 the Greenbrier’s habitat was part of a 12 acre linear forest north of Oldfield Road, and adjacent to vacant land that was clear cut out of a larger 35 acre old growth forest. Although this area was allegedly clear cut for an industrial development, it remained vacant since there was no demand for more industrial land. This situation changed in 2008 when the area went through a process known as the Thundering Waters Secondary Plan, which eventually brought residential zoning to the property.

During the Thundering Waters Secondary Plan process, the developer initially denied that the Round Leave Greenbriar was present in the twelve acre linear forest. However, naturalist Albert Garafalo consulted with MNR and obtained an approximate location. Then he, myself and Joyce Sankey of the Niagara Falls Nature Club went into the forest and took photos of the Greenbrier and obtained GPS locations.

After the developer admitted that the Threatened Greenbrier was present the draft plan of subdivision set aside one acre of the ten acre linear forest to protect its habitat. The Niagara Falls Planning Department attempted to protect the entire area. However, at the Public Meeting under the Planning Act where their recommendation was discussed, the developer’s ecological consultant made a presentation to the Niagara Falls City Council. She stated that irrespective of its abundance in Canada, in the southern US, the “cat brier”, as she dismissed it, was seen as a common and troublesome weed.

In response to the developer’s ecological consultant, the Niagara Falls Planning Director, Alex Herlovitch indicated that he wished simply for MNRF to have the usual discretion to protect the habitat of the Threatened Species through the subdivision registration process. The council then voted to reject his recommendation. As a result, appeals were made of the subdivision by PALS, Jean Grandoni and the Ministry of Municipal Affairs and Housing (MMAH) to the OMB. There was what was supposed to be a Pre-Hearing Conference for the OMB on the issue of the linear forest. This turned into an OMB mediation between MMAH and the developer. The outcome was that the linear forest was shrunken from 10 to 3 acres.

Dense blazing star. Photo by Daniel Nardone.

While the exact area of the habitat of the Greenbrier was protected, the loss of seven acres of the linear forest eliminated seven acres in which the Threatened species could expand into. The lost potential habitat also eliminated vernal pools which provided habitat for breeding amphibians.

My long experience attempting to protect the habitat of the Round-leaved Greenbrier in Niagara Falls shows that when populations of Threatened species are well documented for decades, they are still vulnerable to site alteration which can destroy them or prevent the ability to increase their range. Language about current restrictions being “time consuming” and questioning if regulation is desirable, is not the way to go. Regulations need to be more prescriptive and have more of an explicit mandate to encourage the spread of the species range on adjacent lands which provide appropriate habitat.

In the case at hand, all of this is urgently needed to protect the area south of Oldfield Road that remains in natural habitat. This five hundred acre area is what is left from the larger natural habitat identified in the 1980 Brady Report as the Ramsey Road Forest, now the site of the Thundering Waters development. Such large blocks of natural habitat in the Carolinian life zone are inevitably the most biodiverse in Canada, and the 1977 Niagara Escarpment Preliminary Proposals and the 1980 Brady Report point to how the Ramsey Road Woodlot (now Thundering Waters) is a significant natural habitat that should be protected from development and site alteration. Additionally, most of this area has been this way , as a Provincially Significant wetland since 2010. Some however, is threatened by proposals to build roads through the wetlands to urban development within the area that had been identified in 1980 as the Ramsey Road Forest.

The Thundering Waters Forest is a sanctuary for Species At Risk. This situation has been understood since 1977 before there were any proposals for development here. This should have been a warning signal to developers to stay away from here. In addition to the Green Briar, the following species have been recognized as being here. These include
1. Dense Blazing Star (Threatened)
2. Kentucky Coffee Tree (Threatened)
3. Midland Painted Turtle (Species At Risk)
4. Snapping Turtle (Species At Risk)
5. Barn Swallow (Threatened)
6. Chimney Swift (Threatened)
7. Wood Thrush (Species at Risk)
8. Eastern Wood Pewee (Species at Risk)

Three Possible Species of Endangered Bats (following analysis of acoustic studies)

Little Brown Bat, Northern Mytosis, Tri-Coloured Bat

Acoustic studies have been done on three species of Endangered Bats. These benefit from the old growth forest habitat, in a similar fashion to the Chimney Swift. (benefit from grooved bark and tree cavities) Non-migrating bats in Ontario have all been considered as Endangered for the past three years. Protecting their habitats now is quite important since their numbers are slowly recovering from a disastrous plunge precipitated by the White Nose Fungus.

From careful study of the studies of species at risk at Thundering Waters it has been the developer that has been responsible for delays. There have been serious delays in submitting Information Gathering Forms (IGF) documents, which are preliminary to the basic research needed to protect the habitats of species at risk.

Red headed woodpecker, Wikipedia.

There is one other controversy in Niagara that I have witnessed involving a Species at Risk. This concerns the Waverly Beach Forest in Fort Erie. It provides habitat for the Threatened Red Headed Woodpecker. Its habitat was old growth forest habitat, also identified in the 1980 Brady report as an Environmentally Sensitive Area. It is jeopardized now by a proposed extension of a road for a coffee shop. Red Headed Woodpeckers require old growth forests and as a result are vanishing across Eastern North America.

Every proposed development in Niagara where I have seen a controversy over a Species of Risk, has been on lands which have been long identified in the 1980 Brady report as an Environmentally Sensitive Area, and identified in municipal official Plans as Environmental Conservation Areas. These correspond to what provincial policy has defined as Provincially Significant Woodlands.

The signs have been posted in Niagara for decades where the habitat of species at risk are located. If developers face onerous delays this is because protective policies have been put in place to safeguard these lands for good reasons. Lands where the Species At Risk are found should be avoided for development, rather than be the scene of battles which should have never taken place. To live in good terms with our fellow species should be a key goal of land use planning. In Niagara this can be done by simply respecting the framework of a now fifty year report. It is not served by the basic premises behind the government’s discussion paper on the Endangered Species Act.

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