Letter Decision No. LET-R-188-2006

Background

[1] On April 5, 2006, the Corporation of the City of Ottawa (hereinafter the City) filed the above-noted application with the Canadian Transportation Agency (hereinafter the Agency). An application pursuant to subsection 98(2) of the Canada Transportation Act (hereinafter the CTA) triggers the Canadian Environmental Assessment Act S.C., 1992, c. 37 (hereinafter the CEAA) and the Agency as a responsible authority must, along with any other responsible authorities, ensure that an environmental screening is conducted prior to making any irrevocable decisions on the project. The application included a screening report for an expanded eventual proposal (commencing at the Rideau Centre and terminating at Barrhaven along with a spur to the airport).

[2] The project has been screened, by an environmental assessment team (hereinafter the team), pursuant to paragraph 18(1)(a) of the CEAA. The team was composed of the following seven federal responsible authorities required to issue one or more approvals for the project:

• Agriculture Canada,
• Canadian Transportation Agency,
• Fisheries and Oceans Canada,
• Infrastructure Canada,
• Parks Canada Agency,
• Public Works and Government Services Canada, and
• Transport Canada

[3] The team was assisted by three expert departments namely Environment Canada, Health Canada and the National Capital Commission. A federal environmental assessment co-ordinator was appointed by the Ontario Regional Office of the Canadian Environmental Assessment Agency as the project involved both federal and provincial environmental assessments. The team delegated the preparation of the screening report to the City in accordance with subsection 17(1) of the CEAA.

[4] Based on the project description provided by the City filed with the team on December 27, 2004, the team issued a scoping document on September 7, 2005. That document outlined the scope as follows:

Project

[5] Due to the interconnectedness and geographical proximity of the physical works and activities, the scope of project includes all aspects of the proposal related to construction, operation, maintenance, improvements and decommissioning phases.

Assessment

[6] The spatial boundaries for the assessment were defined for each environmental component that is likely to be affected by the proposal and for each component where a measurable effect is predicted for the cumulative effects assessment. The time frame was based on the design life of the proposal.

Factors

[7] In accordance with subsection 16(1) of CEAA, the screening included consideration of:

• the potential adverse effects of the project (including cumulative effects);
• the significance of those effects;
• comments of the public received in accordance with the CEAA;
• technically and economically feasible measures to mitigate any significant adverse effects of the project; and
• any other matters relevant to the screening that the responsible authorities may require to be considered.

[8] To provide the City with greater precision, the team prepared both a narrative of the factors and a detailed list of specific issues to be addressed. The factors included:

• accidents and malfunctions,
• air quality,
• archaeology, history, palaeontology,
• Central Experimental farm,
• contaminated sites,
• fish and fish habitat,
• health and well-being,
• land-use,
• noise/vibration,
• rolling stock accessibility,
• Rideau Canal,
• species of concern,
• surface and groundwater,
• transportation,
• vegetation and wetlands,
• waste management, and
• wildlife and migratory birds.

[9] The City retained environmental consultants to prepare the screening report which described the project, the existing environment, the potential adverse effects and the associated mitigation. Further sections dealt with the effects of the environment on the project, cumulative effects and consultation. The final section of the report deals with the project environmental management plan, its revision and implementation. Following the review of three drafts of the screening report for evaluation and comment by the team, the City submitted the final version of the screening report to the Agency on June 7, 2006.

[10] The proposal was also subject to a separate environmental assessment under the Ontario Environmental Assessment Act. On June 19, 2006, the Ontario Minister of Environment announced that the Government of Ontario had approved the provincial environmental assessment for the project.

[11] As part of the provincial environmental assessment process, the City had carried out four sets of open houses at various decision points during that process:

• provincial Terms of Reference;
• provincial evaluation of alternatives;
• provincial evaluation of recommended alternative; and
• functional design.

[12] The City also made copies of the provincial environmental assessment available for public comment at various locations throughout the City and consulted with a business group and departments and agencies.

[13] In accordance with the Agency's direction, the City published notice of its application under section 98 of the CTA and the associated environmental screening report in the Ottawa Citizen and Le Droit on April 7, 2006. The federal screening report was made available for comment at the same locations as the provincial environmental assessment had been on display. Interested parties had thirty days to file their comments with the Agency.

Issue

[14] The issue to be addressed is whether the screening meets the requirements of section 16 of the CEAA and if so, the Agency must make one of the following determinations with respect to this project in accordance with subsection 20(1) of the CEAA:

1. The project is not likely to cause significant adverse environmental effects taking into account the implementation of the mitigation measures the Agency considers appropriate.
2. The project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances.
3. Refer the project to the Minister of the Environment for referral to a mediator or a review panel because:
   
   1. of uncertainty as to whether the project is likely to cause significant adverse environmental effects; or
   2. there is sufficient public concern to warrant such reference.

[15] The Agency may only proceed to exercise its power under section 98 of the CTA to approve the construction of the proposed railway line should it determine as in a) above.

Analysis and Findings

Screening report

[16] In its screening report, the City has addressed:

• the description of the physical works and activities associated with the proposal,
• the existing environment,
• the potential adverse environmental effects identified in the scoping document,
• its intentions to mitigate those effects,
• the effects of the environment on the project,
• cumulative effects, and
• the City's consultation program.

[17] The Agency has reviewed the environmental screening report prepared for the City of Ottawa by Ecoplans and agrees that it meets the requirements of section 16 of the CEAA, as further enumerated in the scoping document.

[18] The Agency notes that other members of the assessment team were also satisfied that the screening report satisfactorily met the requirements of section 16 of the CEAA as set out in the scoping document.

Screening decision

[19] On the basis of the environmental screening report and comments received in response to the City of Ottawa's public notice regarding its application to the Agency, the Agency has determined, in accordance with paragraph 20(1)(a) of CEAA, that the project is not likely to cause significant adverse environmental effects taking into account the implementation of the mitigation measures proposed by the City which the Agency considers appropriate. The Agency will therefore proceed with its determination pursuant to section 98 of the CTA. Should the Agency approve the construction of the proposed railway line pursuant to section 98 of the CTA, the Agency, pursuant to subsection 28(1) of the CTA, will include the following clauses in addition to any other clauses that may be required relevant to the requirements of section 98 of the CTA.

[20] The City shall:

1. Implement the mitigative measures, practices and procedures for the protection of the environment, as set out in the screening report and related filings;
2. Cause no variation in those mitigative measures, practices and procedures without the prior approval of the Agency;
3. file the following documents, to the satisfaction of the Agency
   
   1. prior to commencement of the construction of the railway line, the Project Environmental Management Plan (PEMP);
   2. during the construction of the railway line, progress reports on a quarterly basis where possible (including maps and photos) summarizing:
      • construction progress to-date,
      • the success in implementation of the City's mitigation and
      • an evaluation of the success of any approved variations to mitigative measures, practices and procedures for protection of the environment.

[21] Furthermore, the Agency is of the opinion that in this case, pursuant to subsection 38(1) of the CEAA, a follow-up program for this project is appropriate. Should the Agency approve the construction of the proposed railway line pursuant to section 98 of the CTA, the Agency, pursuant to subsection 28(1) of the CTA, will include the following clauses.

[22] The City shall:

1. submit a follow-up plan (developed in consultation with Agency staff), for approval by the Agency, to:
   • re-evaluate the predictions contained in the screening report and related filings, and
   • evaluate the success of the restoration of the right of way.
2. monitor the effects of the construction and operation of the railway line in accordance with that follow-up plan;
3. within two months of completing construction of the railway line, file an environmental as-built report, based on the results of the City's follow-up program, containing:
   • a detailed re-evaluation of the predicted adverse environmental effects of constructing the railway line (as found in the screening report, related filings and requests for variations),
   • an evaluation of the success of the City's mitigative measures, practices and procedures and any approved variations in protecting the environment, and
   • a description of any outstanding effects requiring further mitigation; and
4. on November 1, at the end of the first complete growing season after the City completes the restoration of the project site, file a monitoring report (including maps and photos) that contains:
   • a full re-evaluation of the predicted effects of the project contained in the screening report and related filings, and
   • a detailed evaluation of the success of the mitigation, any variations and the restoration of the right of way.