2023 in Brighton municipal politics has been dominated by one development proposal. We held public meetings in January to get a look at the proposal, and the matter will finally be defined this week, on December 11th. I don’t normally talk about matters that are currently being considered, and I’m not here to talk about this particular project; but this proposal has brought up a key issue, over and over again, that’s worth exploring here. What is a wetland?
At issue in the current development proposal is its proximity to a wetland. Many residents maintain that the land in question is a wetland; I have received dozens of emails opposing the development on this basis, and people are understandably upset at the idea that we would approve a development on a wetland. But Lower Trent Conservation Authority has done at least three site visits as part of their regulatory duties and determined that the property itself, while being adjacent to a Provincially Significant Wetland, is not itself a wetland. So what IS a wetland?
Defining Wetlands
Back in 1979, the US Fish and Wildlife Service came up with a definition of wetlands that’s still used to define them today:
Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is covered by shallow water. . . . Wetlands must have one or more of the following three attributes: 1) at least periodically, the land supports predominantly hydrophytes; 2) the substrate is predominantly undrained hydric soil; and 3) the substrate is saturated with water or covered by shallow water at some time during the growing season of each year.
http://www.wetlands-initiative.org/what-is-a-wetland
There’s some technical language there to unpack. A hydrophyte is a type of plant that is especially suited for and has adapted to living in aquatic environments. Hydric soil “is a soil that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part.” Substrate here is the upper layer of soil from which plants grow.
These three factors go together: if condition 3 is true (the substrate is saturated with or covered by water during the growing season), then surely condition 1 (the plants there are predominantly water plants) and condition 2 (the soil is a type produced in wet conditions) would also be true. Likewise, you’re not going to find a lot of water plants if the growing season is not wet enough to support them. Etc. So observing one of these three conditions at least implies the other two. But in their multiple site visits, Lower Trent Conservation Authority staff did not find these conditions on the subject property.
Regulatory Area
Conservation Authorities are unique to Ontario, an environmental regulatory authority that operates on the basis of watersheds. There was a growing movement of creating Conservation Authorities going back to the 1930s; but when Hurricane Hazel hit Toronto and resulted in several deaths due to homes that had been built in the flood plain being washed away, the province put more regulatory authority behind them with the Conservation Authorities Act. They also perform functions outlined in the Planning Act. The regulatory authority of Lower Trent Conservation Authority can be found here.
Specifically, they regulate development near all watercourses and wetlands. Take a look at their map viewer: the “green blob” overlay shows areas that are regulated by Lower Trent, indicating that they are on or near a watercourse. Here’s a Google Maps image of Gosport and the Provincially Significant Wetlands to the northeast; you can clearly see from the aerial photo that these are wetlands.
The subject property of the proposal is right next to the Presqu’ile Yacht Club; not in the brown area, which is clearly wetlands, but just south of it.
Now here’s the same area on the Lower Trent Conservation Authority map viewer:
It’s really important to note that the green blob does not designate wetlands, it only shows area that is close enough to a watercourse or wetland to be regulated by the Conservation Authority. If your property doesn’t have a green blob on it, and you want to build on your property, you probably don’t need a permit from Lower Trent. If your property IS in the green blob, Lower Trent staff will do a site visit to determine if there is indeed a watercourse or wetland there. Sometimes the blob is based on outdated or incorrect information, and the site visit results in changes to the map and an approval; most times the site visit confirms the existence of significant features that require regulation, and Lower Trent staff will outline the conditions under which development of the property would be possible within the regulations.
Regulations
The most common regulation for development, from either the Conservation Authority or the municipality, is a setback. Municipal zoning requirements include setbacks from the property boundaries, so that nobody can build a house right up to the street or their neighbour’s property. Conservation Authorities similarly don’t allow you to build within a certain distance of a watercourse, wetland, or flood plain.
It’s really important to know what Conservation Authorities do not regulate. For a long time, CAs were a primary regulatory authority for preserving endangered species, habitat, and other “natural heritage” features. Under our current provincial government’s changes, they not only are no longer responsible for regulating those things, but they are not allowed to regulate those things. The provincial government’s approach is pretty much limited to setbacks for safety, ensuring that nobody builds in floodplains where their homes might wash away.
Given that one of the dominant concerns about this development proposal is the impact on wildlife, this leaves us with less information to work with. We know that the lot itself is not a wetland, and we know that local residents report seeing numerous species there. Species at risk are protected under the Endangered Species Act, and Species At Risk Act, which identify habitat and specify what steps need to be taken to protect it. The provincial government designates areas that are protected under these Acts, and while I imagine the Conservation Authority would indicate such in their report, I don’t actually know how a landowner is informed that their property is protected anymore. What I am quite sure of is that this property is not so designated. Whether or not it should be is another matter that is beyond my expertise, and beyond the Conservation Authority’s regulatory role.
Conclusion
Again, I want to stress that I’m using the current development proposal as an example to illustrate the answer to a frequently asked question. On Monday night, Council will consider the matter, weighing the technical reports submitted by the proponent, the peer review of those documents by other consultants (something Lower Trent used to do for us, but is no longer allowed to do because of provincial changes, forcing us to use other consultants), and matters not covered by those reports. We must consider the interests of the community as a whole, within the framework of provincial and municipal regulations and bylaws. We can decide on the matter based on any criteria, but if we decide against allowing this development the proponent is able to make an appeal to the Ontario Land Tribunal (as I’ve described here), at which point the matter can be taken out of our hands entirely. Whatever decision we make must be defensible, not arbitrary. That means it’s important that we respect the expertise of our regulators, and the regulatory definitions they operate within.
I remain, as I must, open to being persuaded either way on the proposal.
I hope this explanation of the process helps ease concerns on this and future proposals. Thank you to everyone who has submitted comments, questions, and concerns! We always appreciate hearing from residents. I have tried to respond to as many as I can, but have had to limit my responses to those that asked specific questions or expressed concerns I could address. For everyone who sent a simple statement of their position (either for or against, there have been both!), your emails have been received, noted, and appreciated.
Do the wishes of those who form the community of Gosport not matter any more? What about traffic, and children who are not used to the amount of traffic that will ensue. What about access for emergency vehicles as there is only one way in and out?
Thanks for commenting Dave!
To be frank, the wishes of neighbours don’t actually matter much. My neighbours can do what they like with their property, within the bounds of the law and relevant regulations, and whether or not I like that isn’t particularly relevant. We all enjoy a certain amount of freedom under the law, including the freedom to do things others might not appreciate, for our own interest’s sake. I’m sympathetic, but that doesn’t mean that I can vote against a lawful development proposal based on the feelings and desires of one resident over another.
The traffic and emergency vehicle access are all matters considered by our Planning department before they bring a report to Council for a decision. They have required the proponent to provide reports on these and many other matters, and had those reports peer-reviewed by other consultants to ensure that they’re correct. I will say, though, that the argument for emergency vehicle access applies equally to everyone in Gosport; if that’s a reason for not allowing this development, then it’s a reason not to allow anyone to live there at all.