FINAL Schlegel is the owner…

FINAL

Schlegel is the owner of lands adjacent to the existing urban area within the southwest portion of the City of Kitchener, including approximately 59 ha north of New Dundee Road and east of Fischer-Hallman Road, commonly referred to as “Bayer Lands”, and approximately 58 ha located at 236 Gehl Place, between Bleams Road and Huron Road and west of Fischer-Hallman Road, commonly referred to as the “BSF2 Lands”. For reference, the Bayer Lands and the BSF2 Lands are identified on the attached map.

Following an extensive submission from Schlegel in support of the inclusion of both the Bayer Lands and the BSF2 Lands within the Urban Area of the Region of Waterloo Official Plan (the “RWOP”), which was submitted to the Ministry of Municipal Affairs and Housing (the “Ministry”) through the Environmental Registry of Ontario in January 4, 2023, the Ministry approved Official Plan Amendment No. 6 to the RWOP (“OPA 6”), with modifications, on April 11, 2023.

Among the modifications made to OPA 6 by the Ministry on April 11, 2023 were amendments to Map 1, Regional Structure and Map 2, Urban System to the RWOP that, among other things, had the effect of including both the Bayer Lands and the BSF2 Lands (and adjacent lands) within the Urban Area. These modifications made by the Ministry were entirely reasonable and appropriate, and should have been adopted by the Region of Waterloo in the first place.

It is relevant to note that in the appeal of Waterloo Region’s OPA 5 and subsequent 2015 settlement hearing and resolution of outstanding appeals, both the Schlegel and the adjoining Mattamy owned lands were the only lands in SW Kitchener in which the Region’s Protected Countryside designation was not applied reflecting the lands were indicated to by further considered following technical studies (now completed) and therefore a refinement of the Region’s Countryside Line was possible and anticipated, pending satisfactory technical work, within these approximate 64 hectares of land.

This is not dissimilar to the Southwest Kitchener Policy Area (SKPA) lands in which the 2015 settlement agreement deferred final determination of the countryside lands in the SKPA area pending further
technical and subwatershed work. Acknowledging all of the above, and in direct response to Minister Calandra’s November 2, 2023 written request to all affected Ontario municipalities to provide feedback and local recommendations with regard to, in this instance, the Region of Waterloo Official Plan recommendation, the Council of the City of Kitchener adopted a resolution at a Special Council Meeting on November 27, 2023, which had the clear effect, among other things, of supporting the immediate inclusion of the Bayer Lands and the BSF2 Lands within the Urban Area of the RWOP.

It is further understood that in response to this current ERO commenting period, the City of Kitchener has once again reiterated its formal Council adopted position from November 27, 2023 that the Schlegel Bayer and BSF2 land parcels both be included within the urban area of the City of Kitchener, alongside the other adjoining lands identified by the City of Kitchener November 27, 2023 (and consistent with the provincial decision of April 2023).

On February 20, 2024, Bill 162 – Get it Done Act, 2024 (“Bill 162”), was introduced in the Legislature for first reading and includes, in Schedule 3, proposed amendments to the Official Plan Adjustments Act, 2023. Section 8 of Schedule 3 pertains to proposed modifications to the RWOP, and includes at clause ii. the following provision: “ii. Map 1, Regional Structure, and Map 2, Urban System, are modified to designate lands as Urban Area, Township Urban Area or Designated Greenfield Area, as applicable in accordance with Map 3.”, with the proposed new Map 3 being identified as a map numbered 349 and filed at the Toronto office of the Ministry (“Map No. 349”).

Request to the province –

Schlegel fully supports the proposed modification to OPA 6 through Bill 162 to include both the Bayer Lands (and adjoining SKPA lands) and the BSF2 Lands (and adjacent Mattamy lands) within the Urban Area in keeping with the City of Kitchener November 2023 request.

As a matter of implementation of mapping, we respectfully suggest that rather than indirectly modifying Maps 1 and 2 of the RWOP by reference to the modified Map 3 per Bill 162, we suggest that the Ministry consider modifying Maps 1 and 2 directly through the inclusion of additional maps – namely, a modified Map 1 and a modified Map 2 reflecting the final alignment of the Countryside Line in the deferred Non-Protected Countryside BSF2/Mattamy land area as determined through the modified Map 3 of Bill 162.

Given these lands have been in contemplation for urban development for 20 plus years through Alder- Strasburg sub-watershed update (2008/2009), City of Kitchener Southwest Area Urban Study (2010), and City of Kitchener Rosenburg Secondary Plan (2011/2012), and given a very recent Region of Waterloo submission provided to the current ERO process, we offer the following additional background information below.

Further Background -

On March 20, 2024, Region of Waterloo (RMOW) Hydrology and Water Program staff made a presentation to Region of Waterloo Council and presented a report that was surprisingly not circulated in the advance Council package (under the guise of tight timelines to meet ERO submission deadline).

Attached to this letter you will find the RMOW staff memo entitled Proposed Bill 162 (Get it Done Act) and Drinking Water Supply Implications for Waterloo Region. The red text imbedded with the RMOW staff report is the submission which Schlegel made to RMOW Council on March 20th in response to the varied inaccurate statements/assertions made within the report.

It is relevant to note that at the March 20th RMOW Council meeting, and as part of discussion on a memo regarding drinking water implications, planning staff again asserted that ample housing supply through draft approved and pending plans is available, that the RMOW’s planned ROPA 6 inclusion of 151ha of additional urban and settlement area land expansions is adequate to meet provincial housing allocations in Waterloo Region… and therefore RMOW planning does not support the local positions taken and submitted to the Minister of Municipal Affairs and Housing by the elected Councils in each local municipality. This includes the position taken by the City of Kitchener Mayor and Council, in response to the Minister’s November 2nd 2023 instructions… a position in keeping with the provinces April 2023 position.

It is clear that municipal reform is needed now and the real science of source water protection has become a poorly veiled effort to shape RMOW planning desires based on the objectives of the day.

Schlegel Urban Developments (Schlegel), has significant concerns regarding two source water protection policies/policy applications that are purported to affect approximately 160 acres of land for consideration to meeting housing supply needs. The lands in question are approximately 140 acres owned by Schlegel and 20 acres of contiguous lands owned by Mattamy. The combined Schlegel (BSF2 lands) and Mattamy lands represent the potential for approximately 1500 home ownership opportunities. (concept draft plan materials attached in fulsome ERO submission materials)

1) Well Head Protection Area (WHPA) mapping

Erroneous Wellhead Protection Area (WHPA) mapping in the Region of Waterloo as well as with Region of Waterloo Official Plan requirements that are unnecessary and duplicative of Provincial Source Water Protection (SWP) requirements.

The WHPA concerns include the following two principal technical issues:
i) The mapped WHPA is significantly in error and incorrectly applies a WHPA designation to private
lands, including Schlegel’s “BSF2” property. Refer to Figure 1
ii) With the incorrect inclusion of these lands in the WHPA (i.e. as “source water” areas), it follows
that other corresponding source water areas that contribute to municipal water supply are
lacking the WHPA coverage intended under the Clean Water Act

2) Region of Waterloo Regional Recharge Area (RRA) Policy

The WHPA mapping errors are further complicated/elevated by ongoing review advanced by our consultants and legal advisors of the Region of Waterloo Regional Recharge Area (RRA) Policy which has implications in the current Regional Official Plan/Municipal Comprehensive Review process that made its way to the province for review in the Fall of 2021. The Region has enacted RRA policies that seek to protect the sources of water for municipal water supply and other water resources, that go beyond the Provincial SWP requirements and normal Environmental Impact Assessment provisions. The following provides some further context and background on this matter.

First, it is important to understand that the RRA designation is NOT part of, and is separate from, the
Provincial Source Water Protection Program.

The Provincial Source Water Protection Program is required by the Ontario Clean Water Act 2006 and
has come into practical effect in recent years. The Provincial program provides protection of water
quality and quantity for municipal use. Prior to the Provincially required program coming into effect, the Region of Waterloo proactively put their own source water protections measures in place as enacted through the current Regional Official Plan (ROP approved December 22, 2010 and amended through OMB Regional Official Plan - Region of Waterloo).

The RRA is a designation that was developed and enacted by the Region of Waterloo, separate from the
Provincial program. It is based on hydrogeologic and planning considerations of the Region and enacted through the Region Official Plan (ROP) Section 7.B.22 and Section 8.A.23. It is not a feature or
requirement of the Provincial program.

The ROP includes Chapter 8 that is entitled “Source Water Protection.” These source water protection” requirements described in the ROP are based on the Region’s own program that predated the current Provincial Source Water Protection Program requirements (e.g. the ROP refers to Wellhead Protection Sensitivity Areas (WPSAs) rather than the Provincially required Wellhead Protection Areas (WHPAs).

Subsequently, the Provincial Source Water Protection Program came into effect in the Region of Waterloo. The Provincial rules have specific measures to protect important areas supplying water to current or future municipal water supplies. These rules define WHPA-Q’s which are Wellhead Protection Areas for Quantity of water and do not utilize or rely on the Region’s RRA designation. They are distinct programs. However, it is noted that the current definition of the WHPA-Q (as defined by the Region and approved by the Province) includes the area of the RRA defined by the Region as well as a broader area.

The practical effect of the RRA policies is to prohibit any further urban development of lands within the RRA that are not presently within the urban boundary. The protection of regional recharge intended by the RRA policies, do not require this prohibition approach as the objectives can be, and are elsewhere, addressed through the use of suitable design and engineering measures such as stormwater infiltration and road salt management. This is evidenced by the current state-of-practice (and science) in urban development and it is demonstrated by the Region’s ongoing approval of comparable development within the existing urban boundary.

The Region has promoted implementation of the new Provincial approach to WHPAs for a number of years. It is unclear what the Region’s plan is for updating the ROP to reflect the Provincial rules; however, it is understood that the Provincial rules are now legally in effect.

Background summary –

Schlegel has made repeated efforts to have the inaccurate WHPA mapping corrected in alignment with the exhaustive real world technical data gained through an on the ground drilling program and well development (in contrast to inaccurate RMOW modelling). Schlegel has met the two tests laid out at the time of the 2015 ROP settlement in Waterloo Region by confirming aquifer flow direction and confirming existence of an aquitard.

Further –

1) RRA with Protected Countryside designation is indicated in RMOW policy as a permanent policy
barrier to development whereas RRA and NO Protected Countryside designation is not a
permanent barrier to development.

2) Urban development presently takes place and is taking place on Kitchener lands identified by
the made in Waterloo Region policy of Regional Re-charge Area (RRA)

3) The RMOW March 20, 2024 staff report notes… “The Waterloo Moraine is located in almost the
entirety of the Region of Waterloo

4) The two tests of the 2015 ROP settlement and Schlegel motion for party status withdrawal have
been met and the exhaustive study materials provided. Aquifer flow beneath the BSF2 and
adjacent Mattamy lands is south and east… away from RMOW supply wells which are to the
north of the lands and a thick and contiguous aquitard exists beneath the lands

5) Pre-development and post development infiltration rates can be maintained and exceeded with
currently employed, modern, sustainable development practices

6) Residential development is not ranked as a provincial threat to source water protection.
(agricultural use is the third highest risk)

We ask that the above and attached information be read in conjunction with the complete materials
submitted on behalf of Schlegel on January 4, 2023 as part of an earlier ERO submission and we provide
all of these technical/scientific reports, planning LNA materials and back up again for ease of reference.